                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0217p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                              Plaintiff-Appellant, -
 DEBORAH THORNTON,
                                                     -
                                                     -
                                                     -
                                                         No. 07-5116
          v.
                                                     ,
                                                      >
 FEDERAL EXPRESS CORPORATION d/b/a FEDEX             -
                                                     -
                             Defendant-Appellee. -
 EXPRESS,

                                                     -
                                                    N
                      Appeal from the United States District Court
                   for the Western District of Tennessee at Memphis.
                    No. 05-02247—J. Daniel Breen, District Judge.
                                     Submitted: June 6, 2008
                                Decided and Filed: June 24, 2008
               Before: DAUGHTREY, CLAY, and McKEAGUE, Circuit Judges.
                                       _________________
                                            COUNSEL
ON BRIEF: Karen Vaughan McManus, FEDEX CORPORATION, Memphis, Tennessee, for
Appellee. Deborah Thornton, Moscow, Tennessee, pro se.
                                       _________________
                                           OPINION
                                       _________________
       McKEAGUE, Circuit Judge. Plaintiff-appellant Deborah Thornton is a former employee of
Federal Express Corporation (“FedEx”). She was discharged on August 24, 2004, when, after a 16-
month leave of absence, she did not return to work, despite being notified of return-to-work
opportunities. Plaintiff had taken the leave of absence due to stress stemming from sexual
harassment by her immediate supervisor, David Bragorgos. Plaintiff did not pursue the return-to-
work opportunities because she continued to receive treatment for panic disorder and fibromyalgia
from health care providers who she says had not released her to return to work.
        Plaintiff commenced this action in the Western District of Tennessee on April 1, 2005,
charging FedEx with sex discrimination and retaliation, in violation of federal and state civil rights
laws, and with discrimination based on her disability, in violation of the Americans with Disabilities
Act. Defendant FedEx’s motion for summary judgment was granted by the district court in a 19-



                                                  1
No. 07-5116                      Thornton v. Federal Express Corp.                                      Page 2


page opinion and order dated January 22, 2007.1 Proceeding pro se, plaintiff appeals from the
district court’s judgment, contending the court failed to view the record evidence in the light most
favorable to her. For the reasons that follow, we affirm.
                                                       I
         Having duly considered the record in light of the parties’ appellate arguments, we find the
district court’s opinion to be clear and well-reasoned in most respects. First, we find no error in the
holding that plaintiff’s quid pro quo sexual harassment claim under Title VII fails for lack of
evidence that plaintiff suffered a tangible job detriment due to her rejection of Bragorgos’s sexual
advances. As the district court explained, the courier route change that precipitated plaintiff’s
request for a leave of absence, though personally inconvenient one day of the week, clearly did not
entail an increase in responsibilities or a demotion or loss of pay or benefits that would satisfy the
“materially adverse change” element of such a claim. Moreover, the courier route change was
hardly a fait accompli, but was a change in-progress, subject to continuing negotiation between
plaintiff and management at the time she took her leave of absence.
        Second, the district court correctly awarded summary judgment to FedEx on plaintiff’s claim
under the Americans with Disabilities Act (“ADA”) for lack of adequate showing that she suffers
from a “disability,” i.e., an impairment that substantially limits a major life activity. Despite
plaintiff’s protestations, a disability determination by the Social Security Administration, even if
substantiated, would not be controlling. Plaintiff has failed to identify evidence demonstrating that
she suffers from an impairment that substantially limits her in a major life activity or that FedEx
discharged or otherwise discriminated against her because of such an impairment.
        Third, plaintiff’s Title VII claim that FedEx retaliated against her because she complained
about Bragorgos’s harassment also lacks evidentiary support. The mere fact that she was eventually
terminated after having filed a complaint with the Equal Employment Opportunity Commission does
not justify an inference that there is a causal connection between the two events. We therefore find
no error in the award of summary judgment to FedEx on plaintiff’s Title VII retaliation claim.
                                                      II
        As to plaintiff’s Title VII sexual harassment claim based on hostile work environment,
however, we find the district court’s analysis incomplete. The district court fairly considered the
evidence of Bragorgos’s harassing conduct, but concluded that it was not sufficiently severe and
pervasive to create an actionable hostile work environment. Citing Faragher v. City of Boca Raton,
524 U.S. 775, 787-88 (1998), the court characterized Bragorgos’s conduct as more akin to “simple
teasing, offhand comments, and isolated incidents,” rather than “discriminatory intimidation,
ridicule, and insult” sufficiently serious to have altered the conditions of plaintiff’s employment.
        In order to establish a prima facie case of hostile work environment based on sexual
harassment, plaintiff must show by a preponderance of the evidence: (1) that she was a member of
a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the
harassment was based on sex; (4) that the harassment unreasonably interfered with her work
performance by creating a hostile, offensive, or intimidating work environment; and (5) that there
is a basis for employer liability. Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999).
       There is no question that the first three elements of this standard are met on the present
record. To assess the fourth element, the court must consider “‘all of the circumstances,’ including

        1
          The district court awarded summary judgment to FedEx on plaintiff’s claims under federal law and then,
declining to exercise continuing supplemental jurisdiction, dismissed the state law claims without prejudice.
No. 07-5116                         Thornton v. Federal Express Corp.                                           Page 3


‘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 performance.’” Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999) (quoting
Harris v. Forklift Sys., 510 U.S. 17, 23 (1993)). The “conduct in question must be judged by both
an objective and a subjective standard: the conduct must be severe or pervasive enough to create an
environment that a reasonable person would find hostile or abusive, and the victim must subjectively
regard that environment as abusive.” Id. at 658 (quoting Black v. Zaring Homes, Inc., 104 F.3d 822,
826 (6th Cir. 1997)).
         The district court minimized the offensive nature of Bragorgos’s comments and behavior.
Viewing the record in the light most favorable to plaintiff, however, we are satisfied that it
establishes a genuine fact issue on the fourth element of her prima facie case. Although there is
little evidence that Bragorgos was physically intimidating, his continuous preoccupation with sex
talk and persistent unwelcome advances, often targeted at plaintiff, were degrading, offensive,
increasingly intimidating and inexcusable. A reasonable jury could conclude that a reasonable
person, directly subordinate to Bragorgos, would find the work environment offensive.
        There is support for FedEx’s position that, for much of the two years plaintiff was subject
to Bragorgos’s supervision, she endeavored not to take him too seriously and patiently tolerated his
misbehavior. Yet, the impression is inescapable that during the months of February to April 2003,
Bragorgos put increasing pressure on plaintiff “to consummate their relationship” before his
upcoming wedding. As this pressure coincided with tensions resultant from courier route
adjustments being made in the Spring of 2003, tensions that Bragorgos seemed to exploit rather than
alleviate, plaintiff clearly began to view the work environment as hostile and abusive. Judging
Bragorgos’s alleged conduct objectively and subjectively, we find that the facts adduced create a
genuine question as to whether the work environment was hostile.
         The hostile work environment claim is not brought against Bragorgos, however, but against
plaintiff’s employer, FedEx. As to the fifth element of plaintiff’s prima facie case, FedEx is
vicariously liable for sexual harassment by Bragorgos, her supervisor, unless FedEx establishes its
affirmative defense by a preponderance of the evidence. FedEx does this by demonstrating (a) that
it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
(b) that plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise. Faragher, 524 U.S. at            807; Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Jackson, 191 F.3d at 659.2
        Generally, an employer satisfies the first part of this two-part standard when it has
promulgated and enforced a sexual harassment policy. Ellerth, 524 U.S. at 765; Faragher, 524 U.S.
at 807. “[A]n effective harassment policy should at least: (1) require supervisors to report incidents
of sexual harassment; (2) permit both informal and formal complaints of harassment to be made;
(3) provide a mechanism for bypassing a harassing supervisor when making a complaint; and
(4) provide for training regarding the policy.” Clark v. United Parcel Service, Inc., 400 F.3d at 341,
349-50 (6th Cir. 2005) (citations omitted).




         2
           The district court did not address this fifth element of the prima facie case because it erroneously concluded
that plaintiff had not satisfied the fourth element. Because we review the grant of summary judgment de novo, we may
affirm the judgment on grounds other than those employed by the lower court, as long as the party opposing summary
judgment is not denied the opportunity to respond. Carver v. Dennis, 104 F.3d 847, 849 (6th Cir. 1997). Here, the
factual record has been adequately developed on the fifth element and both parties have asserted appellate arguments
under the governing standards. We therefore proceed to address the question whether there is a genuine issue of material
fact on FedEx’s affirmative defense.
No. 07-5116                   Thornton v. Federal Express Corp.                                 Page 4


       There is no dispute that FedEx had promulgated and disseminated a facially effective sexual
harassment policy. Plaintiff acknowledges having received more than one copy of the Employee
Handbook, which contained a summary of the policy. Plaintiff became so familiar with the
handbook, she referred to it as her “Bible,” although she did not become familiar with the sexual
harassment policy until after her leave of absence commenced. Plaintiff was also aware that the
People Manual, containing a more detailed description of personnel policies, was accessible to
employees in the office.
        The closer question, in connection with FedEx’s affirmative defense, is whether plaintiff has
been shown to have been unreasonable in failing to use available preventive and corrective
measures to avoid harm. Plaintiff did not report the sexual harassment until June 2003, two months
after her leave of absence had begun, as she requested an extension of her leave. While plaintiff
remained on leave, an internal investigation was promptly undertaken by FedEx. Bragorgos denied
wrongdoing; other employees were unable to corroborate plaintiff’s allegations; and the complaint
of misconduct was deemed not to have been confirmed by the investigation. Yet, plaintiff was
offered the opportunity to return to work under supervision of a different manager involving courier
routes within her schedule preferences. In other words, plaintiff’s eventual use of the harassment
policy complaint procedure yielded the offer of a remedy that would have potentially cured both
stress-producing conditions, i.e., her subordinate relationship to Bragorgos and her schedule
difficulties. Plaintiff declined, for the reason that a psychologist and a psychiatrist with whom she
consulted in July 2003 indicated she was experiencing work-related stress and was unable to return
to work. Plaintiff was granted a one-year workers’ compensation medical leave of absence, during
which time she continued to refuse to return to work. Finally, in August 2004, after notice, plaintiff
was terminated in accordance with FedEx policy.
        Plaintiff attempts to justify her failure to earlier report Bragorgos’s misconduct by explaining
that she feared retaliation. When she did report the harassment, she contends, FedEx responded by
conducting only a superficial investigation. She contends she did not accept FedEx’s
accommodating return-to-work offers because she was physically unable to. Under these
circumstances, she maintains her failure to take advantage of available preventive and corrective
measures was reasonable.
         First, “an employee’s subjective fears of confrontation, unpleasantness or retaliation do not
alleviate the employee’s duty under Ellerth to alert the employer to the allegedly hostile
environment.” Williams v. Missouri Dep’t of Mental Health, 407 F.3d 972, 977 (8th Cir. 2005)
(quoting Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir. 1999)). See also Barrett v. Applied
Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001). Plaintiff has not adduced evidence
demonstrating that she was under a “credible threat of retaliation.” Walton v. Johnson & Johnson
Servs., Inc., 347 F.3d 1272, 1290-91 (11th Cir. 2003). Second, plaintiff’s dissatisfaction with the
investigation does not justify her rejection of the corrective action taken by FedEx, which was
reasonably designed to eliminate the complained-of stressors in plaintiff’s work. See Weger v. City
of Ladue, 500 F.3d 710, 723 (8th Cir. 2007); Walton, 347 F.3d at 1288. Finally, the record does not
substantiate plaintiff’s contention that she was unable to return to work prior to August 2004 and
falls far short of demonstrating that any continuing difficulties were caused by any inadequacy in
FedEx’s preventive or corrective measures.
         We therefore conclude that the record clearly supports the finding by a preponderance of the
evidence that plaintiff’s failure to take advantage of FedEx’s preventive and corrective measures was
unreasonable. It follows that FedEx has established its Ellerth/Faragher affirmative defense to
employer liability. The award of summary judgment to FedEx on plaintiff’s hostile work
environment claim is also properly affirmed, albeit on grounds other than those relied on by the
district court.
No. 07-5116                   Thornton v. Federal Express Corp.                               Page 5


                                                III
       Accordingly, for the reasons stated by the district court in its opinion, as augmented by this
opinion, the district court’s judgment in favor of FedEx is AFFIRMED.
