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

                                                                            FILED
                                                                         January 15, 2009

                                       No. 08-20232                   Charles R. Fulbruge III
                                                                              Clerk

SONJA BARNETT

                                                  Plaintiff - Appellant
v.

THE BOEING COMPANY

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-CV-3771


Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Sonja Barnett (“Barnett”) brought this action against
Defendant-Appellee Boeing Company (“Boeing”). Barnett argues that while
employed at Boeing she was subjected to sexual harassment and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Barnett
claims that a fellow employee, Steven Baysinger (“Baysinger”), sexually
harassed her, that she reported the harassment to Boeing, and Boeing delayed
taking action to prevent future harassment, therefore subjecting her to a hostile


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-20232

work environment. Barnett also claims that Boeing denied her a promotion and
assigned her to an undesirable project in retaliation for her reports of
discrimination.   The district court granted Boeing’s motion for summary
judgment. Barnett appeals. For reasons discussed below, we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      On July 23, 2001, Boeing hired Barnett as a Level 3 Procurement Agent
in the Supplier Management & Procurement Department (“SM&P”). In August
2004, Barnett’s supervisor, Tom Henson (“Henson”), began engaging in activity
which made Barnett uncomfortable. Barnett and Henson were assigned to work
on a procurement team together and shared an office during the assignment.
Henson called Barnett at home on at least three occasions, drove by Barnett’s
house on one occasion, and expressed a romantic interest in Barnett to other co-
workers. In September 2004, Barnett began feeling harassed by Baysinger, a
Quality Manager within SM&P. Baysinger subjected Barnett to inappropriate
behavior, namely leering, sexually suggestive comments and unwanted touching.
      On November 9, 2004, Barnett reported Henson and Baysinger’s actions
to one of Boeing’s investigators in the EEO Department, Marvin Thomas
(“Thomas”). Barnett submitted a written statement that focused almost entirely
on Henson’s conduct, stating that she was providing the summary regarding her
“situation with Mr. Henson.” At the end of the summary, Barnett stated that
another unprofessional work experience had arisen with a different manager
within SM&P. Specifically, she stated that this
      particular individual has made me very uncomfortable and I find
      myself always trying to avoid him whenever possible. He constantly
      uses “elevator eyes” when talking with me and even went so far as
      to pat me on my upper thigh area when I was walking down the
      stairs and he was on his way up. This Manager’s name is Steve
      Baysinger.




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After a recommendation from Thomas, Barnett began attending counseling
through Boeing’s Employee Assistance Program to discuss the impact of the
events on Barnett’s well-being.
      After an investigation, Barnett’s allegations regarding Henson were
substantiated and Boeing placed Henson on probation for twelve months.
Boeing did not begin an investigation of Baysinger at this time. Barnett claims
that she was subjected to “frequent unwelcomed sexual advances and
inappropriate touching from Baysinger” from November 2004 through May 2005.
She states that she notified Thomas of the inappropriate conduct on at least
three to four occasions, but Boeing claims that Barnett did not complain of
Baysinger’s conduct until May 2005.
      In May 2005, Barnett complained of Baysinger’s conduct to Phyllis Adams
(“Adams”), a Procurement Manager, who communicated Barnett’s concerns to
Boeing’s Ethics Advisor, Jeff Brockman (“Brockman”). Brockman contacted
Boeing’s Central Region EEO Office, and an investigation was initiated by EEO
Investigator Susan Amos (“Amos”). On May 18, 2005, Amos met with Barnett
to gather information about Baysinger’s conduct, and Amos conducted an
investigation into Baysinger’s conduct from May 19, 2005 through June 3, 2005.
      On May 19, 2005, Barnett filed her initial charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”), stating that Boeing
subjected her to a hostile work environment from November 2004 through May
2005 as a result of Baysinger’s conduct. On May 20, 2005, Barnett provided
Amos with a written statement complaining of Baysinger’s continued
inappropriate touching and continued sexual behavior towards Barnett.
      On June 3, 2005, Boeing determined that Baysinger’s conduct violated
Boeing’s policy against inappropriate workplace behavior and suspended
Baysinger for one week without pay beginning on June 6, 2005. Baysinger was
also required to complete gender sensitivity training and received a written


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warning reminding him that failure to correct his behavior would result in
further corrective action up to and including termination. After Baysinger was
informed of his suspension, he remained on Boeing’s premises, standing in the
atrium outside the building where Barnett’s office was located. After Barnett
complained, Baysinger was escorted to his car by his direct supervisor, Richard
Hill (“Hill”).
      On June 13, 2005, Baysinger returned from suspension and his office area
was moved to a different floor in the same building. Barnett states, however,
that Baysinger continued his harassing behavior and attempted to interact with
Barnett. Barnett alleges that she continued reporting the conduct to Adams and
Amos; Boeing disputes these assertions.
      On June 25, 2005, Henson recommended Barnett for a job reclassification
which would have been a promotion to a Level 4 Procurement Agent. The
promotion would include a raise of approximately $4,000 to $6,000 per year. The
proposed reclassification was submitted to Hill, Baysinger’s supervisor, for
approval.
      In July 2005, Barnett was reassigned to a project, with a small company
named Mainthia Technologies, Inc. (“MTI”). Baysinger was also assigned to the
MTI project. Barnett states that she had to work continuously with Baysinger
throughout the course of the project, and that Baysinger attempted to intimidate
and/or leer at Barnett during meetings.
      On December 15, 2005, Boeing denied Barnett’s reclassification to a Level
4 Procurement Agent without explanation. Boeing states that Hill denied the
reclassification because: (1) there was no open requisition for a Level 4
Procurement Agent; (2) Barnett did not have a four-year degree or the requisite
number of years of experience; and (3) there was no process in place for
considering all potentially eligible candidates for such a position. Barnett,
however, argues that when she was recommended for reclassification, she was


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already doing the work typical of a Level 4 Procurement Agent and deserved the
reclassification–essentially a promotion.
      Barnett believed that the denial of her job reclassification was motivated
by her complaints against Baysinger, and she amended her charge of
discrimination with the EEOC to add a retaliation claim. On July 28, 2006, the
EEOC found sufficient evidence to establish that Barnett was sexually harassed
by a member of management, stating that the evidence suggested that sexual
harassment continued even after Barnett complained to management officials.
However, the EEOC was unable to substantiate Barnett’s retaliation claim.
      On November 29, 2006, Barnett initiated this action against Boeing. She
alleged that while employed at Boeing she was subjected to sexual harassment
and retaliation in violation of Title VII, the Texas Commission on Human Rights
Act (“TCHRA”), and the common law of the State of Texas.
      On November 12, 2007, Boeing moved for summary judgment, which the
district court granted. The district court held that Baysinger’s conduct did not
generate an environment that was so severe or pervasive that it created a hostile
and abusive work environment and, therefore, did not alter the terms or
conditions of Barnett’s employment. The district court found that Barnett failed
to establish a prima facie case of sexual harassment, and that Boeing was
entitled to summary judgment as a matter of law on Boeing’s sexual harassment
claim. The district court also held that Barnett failed to establish a prima facie
case of retaliation, finding that Barnett failed to establish any causal connection
between adverse employment actions and Barnett’s decision to file a charge of
discrimination. Finally, the district court held that its assessment of Barnett’s
sexual harassment and retaliation claims under Title VII applied to Barnett’s
claims under the THCRA and Texas common law. Barnett appeals.




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                        II. STANDARD OF REVIEW
      This Court reviews the district court’s grant of summary judgment de
novo, applying the same legal standard as the district court in the first instance.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)
(citation omitted).   Summary judgment is proper when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c). In making a determination
as to whether there is a genuine issue of material fact, this Court considers all
of the evidence in the record but refrains from making credibility determinations
or weighing the evidence. Turner, 476 F.3d at 343 (citation omitted). We draw
all reasonable inferences in favor of the nonmoving party, but “a party cannot
defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of evidence.’” Id. (citations omitted). “Summary
judgment is appropriate if a reasonable jury could not return a verdict for the
nonmoving party.” Id. (quotation omitted).
                              III. DISCUSSION
      The district court correctly determined that Barnett failed to make out the
prima facie case necessary for establishing a hostile work environment and a
retaliation claim. Therefore, we AFFIRM the district court’s grant of Boeing’s
motion for summary judgment.
A. Hostile Work Environment Claim
      Barnett must establish the following factors to bring a hostile work
environment claim: (1) she belongs to a protected class; (2) she was subjected to
unwelcome sexual harassment; (3) the harassment was based on sex; (4) the
harassment affected a term, condition, or privilege of employment; and (5) the
employer knew or should have known of the harassment and failed to take



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remedial action. The harassing conduct, however, must be severe or pervasive.
Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005). Id.
      Barnett must demonstrate that the harassment created an environment
that a reasonable person would find hostile or abusive. Id. The Supreme Court
has held that “[w]hen the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working
environment,’ Title VII is violated.” Harris, 510 U.S. at 21 (internal citations
omitted). “To be actionable, the challenged conduct must be both objectively
offensive, meaning that a reasonable person would find it hostile [or] abusive,
and subjectively offensive, meaning that the victim perceived it to be so.”
Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999).
This Court must look at the totality of the circumstances when determining
whether an environment is hostile or abusive. Shepherd, 168 F.3d at 874. The
Court may consider factors such as “the frequency of the conduct, its severity,
the degree to which the conduct is physically threatening or humiliating, and the
degree to which the conduct unreasonably interferes with an employee’s work
performance.” Septimus, 399 F.3d at 611.
      It is uncontested that Barnett satisfies elements (1)-(3) for establishing a
hostile work environment claim. Barnett is a member of a protected class: she
is a woman. Barnett was subjected to unwelcome sexual harassment: as
evidenced by Boeing’s eventual findings of improper sexual harassment on the
part of Baysinger and the EEOC findings. The harassment suffered by Barnett
was based on sex: again, as evidenced by Boeing’s eventual findings of improper
sexual harassment on the part of Baysinger. The district court found that
Barnett failed to satisfy elements (4) and (5).
      There is sufficient evidence for purposes of summary judgment to show
that Baysinger leered at Barnett, touched her in sexually inappropriate and

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unwelcome ways, and allegedly actively intimidated her after she complained of
his actions. Looking at the totality of the circumstances, this Court’s decisions
in Shepherd and Hockman v. Westward Communications LLC, 407 F.3d 317 (5th
Cir. 2004), make clear that Barnett failed to demonstrate that her working
environment was objectively hostile or abusive within the meaning of Title VII.
      In Shepherd, the plaintiff was subjected to sexually suggestive comments
and was touched on her arms. Shepherd, 168 F.3d at 872. This Court found
those actions not to be physically threatening and held that the conduct would
not interfere unreasonably with the plaintiff’s work performance. Id. at 874.
In Hockman, over a period of eight months the plaintiff was subjected to sexually
suggestive comments, touching and brushing up against the plaintiff’s breasts
and behind, an attempted kiss, and requests to be alone with the plaintiff.
Hockman, 407 F.3d at 321-22. This Court explained that to “survive summary
judgment, the harassment must be ‘so severe [or] pervasive that it destroys a
protected classmember’s opportunity to succeed in the work place.’” Id. at 326
(citation omitted).   The incidents of sexual harassment occurring before
Barnett’s complaint and Baysinger’s suspension do not rise to the level required
by Shepherd and Hockman.
      Barnett correctly argues, however, that the incidents of sexual harassment
must be considered in conjunction with the psychological harm and incidents of
intimidation that occurred after Baysinger ceased to physically touch her. See
e.g., Harris, Inc., 510 U.S. at 22 (stating that “Title VII bars conduct that would
seriously affect a reasonable person’s psychological well-being”). Shortly after
reporting Baysinger’s conduct to management, Barnett was assigned to work on
the MTI project with Baysinger, where she claims Baysinger continued
harassing her.     The harassment was not physical in nature, but was
psychological and Barnett contends that Baysinger continued the harassment
because of her sex, although not sexual in nature, and that the psychological

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harm and intimidation falls under Title VII’s protections. Barnett is correct in
stating that Title VII bars discrimination on the basis of gender or sex, and that
the harassment does not need to be sexual in nature. See Urbano v. Cont’l
Airlines, 138 F.3d 204, 205-06 (5th Cir. 1998).
      Drawing all reasonable inferences in favor of Barnett, we hold that the
combination of the incidents that occurred before and after she reported
Baysinger’s conduct do not rise to the level of severe or pervasive conduct.
Barnett alleges that Baysinger (1) remained near her building after his
suspension and thereby “stalked” her; (2) made excuses to come near her work
space and glare at her; and (3) intimidated her. While this Court does not doubt
that this was an uncomfortable workplace environment, Barnett fails to
establish that the actions destroyed her ability to succeed in the workplace
environment. Baysinger’s actions do not rise to the level of severe or pervasive
conduct required to satisfy element (4).
      Finally, the district court erred in finding that Baysinger did not satisfy
element (5) because Boeing took prompt remedial action after Barnett’s May
2005 complaint. While it is correct that Boeing took prompt remedial action
after the May 2005 complaint, our review of the record demonstrates that Boeing
was on notice of Baysinger’s inappropriate conduct as early as November 2004.
As was recounted above, Barnett’s November 2004 complaint of harassment
stated that Baysinger touched her thigh on one occasion and often looked at her
with “elevator eyes.” Boeing was on notice of possible inappropriate conduct by
Baysinger and took no action for six months. Thus, Barnett satisfies element (5).
      Notwithstanding our contrary determination on element (5), the totality
of the circumstances demonstrate that Barnett failed to show that Baysinger’s
harassment was sufficiently severe or pervasive so as to alter the conditions of
her employment; therefore, she fails to establish element (4) of the prima facie



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case. We AFFIRM the district court’s grant of summary judgment in favor of
Boeing with respect to Barnett’s hostile work environment claim.
B. Retaliation Claim
       For Barnett to establish a retaliation claim, she must show (1) that she
engaged in protected activity; (2) that an adverse employment action occurred;
and (3) that a causal link existed between the protected activity and the adverse
action. See Baker v. Am. Airlines, Inc., 430 F.3d 750, 754 (5th Cir. 2000). An
adverse employment action is any action that might have dissuaded a reasonable
worker from making or supporting a charge of discrimination. McCoy v. City of
Shreveport, 492 F.3d 551, 559 (5th Cir. 2007). Barnett must demonstrate that
the adverse employment action would not have occurred “but for” Barnett’s
protected activity. Septimus, 399 F.3d at 608.
      It is undisputed that Barnett was engaged in protected activity when she
filed her charge of discrimination with the EEOC. Barnett alleges that Boeing
took a materially adverse employment action when it (1) chose not to promote
Barnett and (2) pressured Barnett to accept reassignment to the MTI project.
Barnett was recommended for a promotion three weeks after filing her charge
of discrimination with the EEOC. The decision of the recommended promotion
was delayed for several months. A reasonable employee may have felt dissuaded
from supporting his/her discrimination charge in this situation. Barnett fails to
establish, however, how assignment to the MTI project is a materially adverse
employment action. Barnett does not present evidence that the project
assignment involved any sort of demotion of responsibility, pay, or was
associated with any stigma. Workers are often assigned to work on various
projects within the scope of their employment. The assignment required Barnett
to work with Baysinger, but that alone does not permit a determination that the
assignment is an adverse employment action that might have dissuaded a
reasonable worker from making or supporting a charge of discrimination. Thus,

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Barnett satisfies elements (1) and (2) for establishing a prima facie case of
retaliation with respect to the denied reclassification, but not with respect to her
claims regarding the reassignment to the MTI project.
      To satisfy the final element of a prima facie case of retaliation, Barnett
must demonstrate a causal connection between the protected activity (filing the
EEOC charge) and the adverse action. Barnett correctly argues that the close
timing between filing her EEOC charge and the denial of her promotion may
provide the causal connection required to make out a prima facie case of
retaliation. See McCoy, 492 F.3d at 562. Once Boeing, however, provides a
legitimate, nondiscriminatory reason that explains both the adverse action and
the timing, Barnett must offer some evidence from which a jury may infer
retaliation was Boeing’s actual motive. Id.
      Boeing provided a legitimate, nondiscriminatory reason for denying
Barnett’s promotion. Specifically, Boeing stated that (1) there was no open
requisition for a Level 4 Procurement Agent, (2) Barnett did not have a four-year
degree or the requisite number of years of experience, and (3) there was no
process in place for considering all potentially eligible candidates for such a
position. Barnett argues that Boeing failed to provide a reason to explain the
timing of the adverse employment actions against Barnett. Boeing argues that
the promotion had to be denied after Barnett filed the EEOC charge because the
recommendation for promotion occurred after Barnett filed the charge of
discrimination. Boeing satisfies its burden of production for establishing a
legitimate, nondiscriminatory reason for explaining the timing associated with
the denial of Barnett’s promotion.
      Because Boeing presents a legitimate, nondiscriminatory reason
explaining the timing of its decision, Barnett must offer evidence to satisfy the
causation element for establishing a prima facie case of retaliation. This
evidence must allow a jury to infer that retaliation was Boeing’s actual motive.

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See McCoy, 492 F.3d at 562. Barnett fails to provide evidence rebutting Boeing’s
stated reasons surrounding the timing of Barnett’s denied promotion that
demonstrates retaliation was Boeing’s actual motive. Furthermore, Barnett
provides no evidence that the adverse employment action would not have
occurred “but for” her protected activity. Barnett, therefore, fails to establish the
third element necessary for establishing a prima facie case of retaliation. Thus,
we AFFIRM the district court’s grant of summary judgment with respect to
Barnett’s retaliation claim.
                               IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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