           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                            FILED
                                                                         February 5, 2009

                                       No. 08-30443                   Charles R. Fulbruge III
                                                                              Clerk

TRAZILA PAUL

                                           Plaintiff - Appellant
v.

NORTHROP GRUMMAN SHIP SYSTEMS

                                           Defendant - Appellee



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:07-CV-3766


Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Trazila Paul brought this Title VII action against Northrop Grumman
Ship Systems (“Northrop”), alleging that she was sexually harassed while
employed by Northrop. Paul appeals the district court’s grant of summary
judgment in favor of Northrop. For the following reasons, we affirm.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 08-30443

                      I. FACTS AND PROCEEDINGS
      On May 10, 2006, Paul, a female, was employed by Northrop as a
cableman.   She was working on a new ship under construction in one of
Northrop’s shipyards, along with several other Northrop employees, including
Corey Barattini. At that time, Barattini, a male, was employed as a line
foreman in Northrop’s electrical department; there was some debate in the
proceedings below as to whether he had supervisory authority over Paul.
      Paul alleges that, on that day, Barattini walked up to her until his chest
was touching hers, thus “chesting up” to her breasts in a thirty-second
confrontation. As Paul attempted to separate herself, he stared at her in a
hostile and intimidating manner. Paul then walked away toward a narrow ship
passageway, but Barattini followed her. He forced his way through the door
ahead of her, and, in doing so, placed his hand on her stomach and ran his arm
around her waist. As he squeezed past her in the passageway, he allegedly
“rubbed his pelvic region across [her] hips and buttocks.” According to Paul, the
incident lasted a total of approximately a minute and a half, and occurred in the
presence of another supervisor who did not intervene.
      Northrop has provided an account of the subsequent events, which Paul
does not dispute. Paul immediately reported the incident to her work leaderman
and Union Steward. She was placed in a different office for the rest of the day
so she would not have to interact with Barattini. The next day, Paul and her
Union Steward notified Northrop’s Labor Relations Department. Northrop
promptly investigated the incident. During the investigation, Paul was referred
to Northrop’s Employee Assistance Program and was granted a request for an
extended medical leave of absence. Based on its investigation, Northrop initially
suspended Barattini on May 16, 2006, and later terminated him. Barattini filed

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a complaint under Northrop’s Dispute Resolution Procedure and was ultimately
reinstated to his line foreman position without backpay.
      In July 2007, Paul commenced this Title VII action, alleging sexual
harassment and seeking lost wages due to disability, damages for continuing
emotional distress and physical pain and suffering, punitive damages, and
attorney’s fees. Northrop filed a motion to dismiss or, in the alternative, motion
for summary judgment, which the district court treated as a motion for summary
judgment because Northrop had submitted materials outside the pleadings along
with its motion. The district court granted summary judgment in favor of
Northrop, holding that the alleged conduct was not sufficiently severe or
pervasive to constitute an actionable Title VII claim for hostile work
environment resulting from sexual harassment. Paul appeals.
                         II. STANDARD OF REVIEW
      “This court reviews a district court’s grant of summary judgment de novo,
applying the same legal standards as the district court.” Condrey v. SunTrust
Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). On review of a grant of summary
judgment, “[t]he evidence and inferences from the summary judgment record are
viewed in the light most favorable to the nonmovant.” Minter v. Great Am. Ins.
Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005). Typically, “[s]ummary judgment
is proper when the pleadings and evidence demonstrate that no genuine issue
of material fact exists and the movant is entitled to judgment as a matter of
law.” Condrey, 429 F.3d at 562 (internal quotations omitted); see also FED. R.
CIV. P. 56(c).


                              III. DISCUSSION


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                                  No. 08-30443

      An action for sexual harassment in violation of Title VII requires the
plaintiff to demonstrate “that the harassment created a hostile or abusive
working environment.” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428,
434 (5th Cir. 2005). This type of claim “embodies a series of criteria that express
extremely insensitive conduct against women, conduct so egregious as to alter
the conditions of employment and destroy their equal opportunity in the
workplace.” DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593
(5th Cir. 1995). To set forth a proper hostile work environment claim based on
sexual harassment by a co-worker, a plaintiff must demonstrate that:
      (1) she is [a] member of a protected group; (2) she was the victim of
      uninvited sexual harassment; (3) the harassment was based on sex;
      (4) the harassment affected a term, condition, or privilege of [her]
      employment; and (5) her employer knew or should have known of
      the harassment and failed to take prompt remedial action.
Harvill, 433 F.3d at 434 (internal quotation omitted).
      However, this court has recognized that, following the Supreme Court’s
holdings in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998), only the first four elements
need to be satisfied when the alleged harasser had supervisory authority over
the employee. See Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). In any
event, the district court in the present case did not reach the applicability of the
fifth element of the test because it held that, regardless of whether Barattini had
supervisory authority over Paul, the alleged harassment did not affect “a term,




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condition, or privilege of employment.”1 Paul contends that this holding was
error.
         “To affect a term, condition, or privilege of employment, the harassment
must be sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Aryain, 534 F.3d at
479 (internal quotation and alterations omitted). The alleged conduct “must be
both objectively offensive, meaning that a reasonable person would find it hostile
and abusive, and subjectively offensive, meaning that the victim perceived it to
be so.” Harvill, 433 F.3d at 434 (quotation omitted). Further, it is examined
under a “totality of the circumstances” test, which considers “the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Id. (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993)).
         Importantly, the “severe or pervasive” requirement “is stated in the
disjunctive.” Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th
Cir. 2007). This court has therefore recognized that:
         [a]n egregious, yet isolated, incident can alter the terms, conditions,
         or privileges of employment and satisfy the fourth element


         1
         For the same reason, the district court did not address the applicability of the
Ellerth/Faragher affirmative defense. Even where the alleged harasser had supervisory
authority over the plaintiff, an employer is afforded an affirmative defense to claims of
vicarious liability for sexual harassment, provided “no tangible employment action [was] taken
against the aggrieved employee.” Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 479 n.3
(5th Cir. 2008). “To satisfy the affirmative defense, the employer must show by a
preponderance of the evidence: ‘(a) that the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventative or corrective opportunities provided
by the employer or to avoid harm otherwise.’” Id. (quoting Ellerth, 524 U.S. at 765).

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      necessary to constitute a hostile work environment. The inverse is
      also true: Frequent incidents of harassment, though not severe, can
      reach the level of pervasive, thereby altering the terms, conditions,
      or privileges of employment such that a hostile work environment
      exists. Thus, the required showing of severity or seriousness of the
      harassing conduct varies inversely with the pervasiveness or
      frequency of the conduct.
Id. (internal quotations and citations omitted). Accordingly, while an isolated
incident—reflecting conduct that is not pervasive or frequent—may be
sufficiently severe to constitute sexual harassment, it must be “extremely
serious” in order to “amount to discriminatory changes in the ‘terms and
conditions of employment.’” Id. (quoting Faragher, 524 U.S. at 788). As this
court recently noted, “[t]he determination of whether alleged conduct is
sufficiently severe or pervasive is not an exact science, but this [c]ourt’s decisions
on this issue provide guidance.” Gibson v. Potter, 264 F. App’x 397, 400 (5th Cir.
2008).
      The type of non-consensual physical touching alleged by Paul was held to
be actionable under Title VII only in cases where it was chronic and frequent.
See McKinnis v. Crescent Guardian, Inc., 189 F. App’x 307, 310 (5th Cir. 2006)
(holding that chronic unwanted touching, including touching on the breasts and
thigh over a year-long period, repeated demands for “hugs and kisses,” and other
inappropriate behavior resulting in plaintiff’s resignation, supported a hostile
work environment claim); Harvill, 433 F.3d at 435–36 (holding that repeated
unwanted fondling and rubbing of plaintiff’s breasts and buttocks and unwanted
kissing on the cheek over a seven-month period, despite her protests on every
occasion, was sufficiently severe or pervasive). In these cases, the pervasiveness
of the alleged conduct was sufficient to alter the terms or conditions of the


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plaintiff’s employment. By contrast, Paul’s sexual harassment claim relies
exclusively on a single confrontation with Barattini, which, according to her
brief, lasted a total of approximately a minute and a half. We therefore agree
with the district court’s finding that Barattini’s alleged conduct was clearly not
pervasive,2 and are left with the task of assessing its severity.
       This circuit’s case law reveals that isolated incidents may form the basis
for a sexual harassment claim in cases where the alleged conduct was
particularly egregious. See Taylor-Rogers v. Robb & Stucky, Ltd., 82 F. App’x
974, 975 (5th Cir. 2003) (evidence that a co-employee rubbed up against plaintiff
on a daily basis, and had simulated a sex act with her, unbuttoned her blouse
and touched her breast underneath her bra, was “sufficient to create a genuine
issue of material fact as to the severity and pervasiveness of the harassment”).
However, in circumstances where the alleged conduct was either similar, or
more objectionable and frequent than, Barattini’s, this court has held that non-
pervasive conduct involving physical touching—including unwanted touching of
intimate body parts—was not actionable under Title VII. See Gibson, 264 F.
App’x at 398 (holding that conduct of supervisor who “grabbed [plaintiff] on the
buttocks and made suggestive comments” while she was conversing with another
employee was not “sufficiently severe or pervasive to alter a term or condition
of [plaintiff’s] employment”); Hockman v. Westward Commc’ns, LLC, 407 F.3d
317, 328 (5th Cir. 2004) (holding that sexually suggestive comments, slapping
plaintiff on the behind with a newspaper, grabbing or brushing up against
plaintiff’s breasts and behind, and attempting to kiss plaintiff did not qualify as

       2
        In addition, the district court’s summary judgment order notes that counsel for Paul
admitted during oral argument that the alleged conduct was not pervasive. Paul does not
dispute having made such admission.

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                                  No. 08-30443

severe); Derouen v. Carquest Auto Parts, Inc., No. 01-30369, 2001 WL 1223628,
at *1 (5th Cir. Sept. 24, 2001) (holding that plaintiff’s allegations that co-worker
attempted to grab her breast and later touched and rubbed her thigh, that
customers made sexually threatening remarks, and that supervisors did not
respond to her complaints about these incidents, did not support a hostile work
environment claim).
      Paul’s claims are distinguishable from cases where the alleged conduct
was sufficiently “severe or pervasive” to alter the terms or conditions of a
plaintiff’s employment. The facts in this case fall much closer to those in Gibson,
Hockman, and Derouen, where this court held that isolated incidents involving
similar intimate body touching did not rise to a sufficient level of severity. We
therefore agree with the district court that, while Barattini’s alleged conduct
may have been “subjectively offensive” and evidently greatly upset Paul, it was
not “objectively offensive” enough to amount to a change in the terms or
conditions of Paul’s employment. Accordingly, the district court properly held
that Paul failed to raise a genuine issue of material fact to support her claim of
hostile work environment.
                               IV. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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