United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 29, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 05-30080
Summary Calendar
____________________
SHIRLEY J WILLIAMS
Plaintiff - Appellant
v.
UNITED STATES DEPARTMENT OF THE NAVY, HANSFORD T JOHNSON, ACTING
SECRETARY, JOSEPH LAUX
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 03-CV-2060
_________________________________________________________________
Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Shirley Williams appeals the district
court’s order granting Defendant-Appellee’s motion for summary
judgment and awarding Defendant-Appellee costs in this Title VII
*
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that this opinion should not be published and is not precedent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. 05-30080
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action. For the following reasons, we AFFIRM the judgment of the
district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Shirley Williams, an African-American female, began working
for the U.S. Department of the Navy (the “Navy”) in May 1997 as a
civilian in the Primary Care Clinic at the Branch Medical Center,
Naval Air Station, Joint Reserve Base in Belle Chasse, Louisiana.
The Navy employed Williams as a registered nurse, diabetic
educator, and clinical nurse specialist in the Primary Care
Clinic.
On July 8, 1998, Petty Officer Joseph Laux, a male coworker
of Williams, entered the women’s restroom while Williams was
inside. Williams asked Laux to leave and felt threatened by his
refusal. Williams reported the incident to her immediate
supervisor, Lieutenant Commander Snow. She also reported the
incident to the Command’s Equal Employment Opportunity (“EEO”)
officer, Lieutenant Pruitt, on July 13, 1998.
On July 14, 1998, Williams and Laux had an argument in
Laux’s office after Williams asked Laux for a replacement fax
toner. Williams alleges that during this incident, Laux
questioned her about why she needed the toner, and when she asked
him when she could receive the toner, he told her to get out of
his office.
On July 24, 1998, Snow held a meeting with Williams and Laux
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concerning the July 8, 1998 and July 14, 1998 incidents. On July
28, 1998, Snow wrote a memorandum documenting the sequence of
events, calling the incidents “worksite conflicts.” Snow did
not, however, place the memorandum in either Williams’s or Laux’s
official personnel file.
In August 1998, Pruitt advised Williams to contact the
civilian EEO office in New Orleans, Louisiana. On or around
August 5, Williams spoke with an intake coordinator in the New
Orleans office, who told her that someone would contact her.
Williams claims that she made several unreturned phone calls to
the New Orleans office. On September 17, 1998, Williams faxed a
memorandum to the New Orleans office, requesting that an EEO
representative contact her. An EEO counselor for naval support
activity contacted her in October 1998.
During this time, Williams’s problems with Laux continued.
On September 15-16, 1998, Laux granted leave to two corpsmen
assigned to the Primary Care Clinic without notifying Williams.
On September 18, Laux closed the Primary Care Clinic, which
cancelled Williams’s patient appointments without her permission.
In November 1998, Snow moved Williams’s work station to
outside of Snow’s office and assigned Williams telephone triage
duties, which prevented her from having any physical contact with
patients or other clinic staff. In addition, Laux had to pass
Williams’s new work location on a daily basis to visit Snow in
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her office. After being in this new location for approximately
one week, Williams complained to Captain Ayers about her
relocation and change of duties, and she was immediately returned
to her original work station in the Primary Care Clinic with her
original duties.
In January 1999, the Navy hired a diabetic educator from
Keesler Air Force Base to work in the Primary Care Clinic. This
decision removed Williams’s duties as a diabetic educator, which
had comprised twenty percent of her overall duties, but it did
not reduce her overall salary.
Williams received a letter dated March 13, 1999 from an EEO
counselor informing her that the New Orleans office had
transferred her informal complaint of alleged discrimination to
the Fort Worth, Texas EEO office for processing. This letter
also advised Williams that she should contact an EEO counselor
within forty-five days of any alleged discriminatory act.1 On
August 10, 1999, an EEO counselor issued a report stating that
the parties had failed to reach an informal resolution to
Williams’s informal complaint. On December 30, 1999, the Navy
accepted for investigation two of Williams’s claims, including
the July 8, 1998 restroom incident with Laux and the claim of
1
29 C.F.R. § 1614.105(a)(1) provides that “[a]n aggrieved
person must initiate contact with a Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the
case of personnel action, within 45 days of the effective date of
the action.”
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retaliation for reporting it.
On March 29, 2002, an administrative law judge from the New
Orleans EEO office dismissed Williams’s complaint, finding that
her allegations, even if true, did not state valid causes of
action for her Title VII claims. On May 2, 2003, the Navy issued
its final order denying Williams’s EEO complaint.
On July 18, 2003, Williams timely filed suit in federal
district court, alleging claims of sexual and racial
discrimination, retaliation, and sexual harassment from July 1998
through September 2003. See 42 U.S.C. §§ 2000e-2(a), 2000e-3(a),
2000e-16(a) (2000). On November 12, 2003, the Navy filed a
motion for summary judgment, arguing that Williams had failed to
exhaust her administrative remedies by initiating her EEO
complaint more than forty-five days after the alleged
discrimination occurred.
On January 30, 2004, the parties consented to have their
dispute handled by a magistrate judge pursuant to 28 U.S.C.
§ 636(c). On April 19, 2004, the magistrate judge denied the
Navy’s motion for summary judgment, determining that material
facts remained in dispute regarding whether Williams was actually
or constructively aware of the forty-five day deadline and
whether the Navy’s actions misled Williams with regard to the
forty-five day requirement.
On October 26, 2004, the Navy filed a second motion for
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summary judgment, arguing that: (1) no genuine material facts
were at issue regarding Williams’s claims; and (2) Williams
failed to exhaust her administrative remedies concerning the
incidents of alleged discrimination. On December 16, 2004, the
magistrate judge granted the motion for summary judgment and
awarded costs to the Navy. Specifically, the magistrate judge
granted the Navy’s motion for summary judgment for failure to
exhaust administrative remedies for Williams’s claims arising
after May 3, 1999.2 As for Williams’s claims arising before May
3, 1999, the magistrate judge granted summary judgment on the
ground that Williams had failed to establish a prima facie case
for her sex and race discrimination, hostile work environment
sexual harassment, and retaliation claims.
On January 7, 2005, Williams filed a notice of appeal. On
appeal, she challenges the district court’s grant of summary
judgment on her Title VII claims for hostile work environment,
2
Williams’s September 17, 1998 memorandum to the New
Orleans EEO office was untimely on its face because it was filed
more than forty-five days after the alleged incidents of
discrimination occurred. See 29 C.F.R. § 1614.105(a)(1).
However, the magistrate judge found that disputed facts still
existed concerning whether Williams was actually or
constructively aware of the forty-five day deadline before she
received actual notice of the forty-five day deadline from the
EEO counselor’s letter dated March 13, 1999. Allowing forty-five
days plus three days for mailing, and accounting for the
weekends, the magistrate judge held that Williams’s complaints
after May 3, 1999 were time-barred because she had actual notice
of the forty-five day requirement as of the EEO letter dated
March 13, 1999. Williams does not challenge this holding on
appeal.
No. 05-30080
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sex discrimination, and retaliation. She also challenges the
district court’s award of costs.3
II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary
judgment de novo, applying the same standard as the district
court. See Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190
(5th Cir. 2001). Summary judgment is proper when the record,
viewed in the light most favorable to the nonmoving party, shows
that “there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of law.”
See FED. R. CIV. P. 56(c) (emphasis added); see also Blow v. City
of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001). “Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Thus, the nonmoving party must present
“specific facts showing that there is a genuine issue for trial.”
Id. at 248-49 (citing FED. R. CIV. P. 56(e)).
3
Williams does not challenge the district court’s grant of
summary judgment on her racial discrimination claim or on her
claims for alleged incidents of discrimination occurring after
May 3, 1999, for which she failed to exhaust her administrative
remedies. Accordingly, we will not consider these issues on
appeal. See FED. R. APP. P. 28(a)(9); 5TH CIR. R. 28.3(j).
No. 05-30080
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III. DISCUSSION
A. Title VII Claims
1. Hostile Work Environment
Williams argues that the district court improperly granted
summary judgment in favor of the Navy on her hostile work
environment claim. According to Williams, she established a
prima facie case of hostile work environment. Williams alleges
that Laux created a hostile work environment by entering and
refusing to leave the women’s restroom, yelling and displaying
anger toward her over the fax machine toner, and circumventing
her authority in the Primary Care Clinic on September 18, 1998 by
cancelling her patient appointments without consulting her.
To establish a prima facie case of hostile work environment,
a plaintiff must show that: (1) she belongs to a protected class;
(2) she was subjected to unwelcome sexual harassment; (3) the
harassment was based on her sex; (4) the harassment affected a
term, condition, or privilege of her employment; and (5) the
employer knew or should have known of the harassment and failed
to take remedial action. Mota v. Univ. of Tex. Houston Health
Sci. Ctr., 261 F.3d 512, 523 (5th Cir. 2001). Because the
district court found that only the fourth and fifth elements were
in dispute and because no party challenges this finding on
appeal, we will not address the first three elements.
“For harassment to affect a term, condition, or privilege of
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employment, it must be both objectively and subjectively
abusive.” Hockman v. Westward Communications, LLC, 407 F.3d 317,
325 (5th Cir. 2004); accord Faragher v. City of Boca Raton, 524
U.S. 777, 787 (1998) (“[A] sexually objectionable environment
must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive . . . .”). This
court determines whether a work environment is objectively
hostile or abusive by considering the totality of the
circumstances, including such factors as the frequency of the
conduct, the severity of the conduct, whether the conduct is
physically threatening or humiliating, and whether the conduct
unreasonably interferes with an employee’s work performance.
Hockman, 407 F.3d at 325-26. We recently held that to survive
summary judgment, “the harassment must be ‘so severe and
pervasive that it destroys a protected classmember’s opportunity
to succeed in the work place.’” Id. at 326 (quoting Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999)).
For harassment to qualify as severe or pervasive, the alleged
conduct must be more than isolated incidents. Id.; see also
Faragher, 524 U.S. at 788 (noting that “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions
of employment” (internal quotation marks and citation omitted)).
Williams has failed to establish a prima facie case of
No. 05-30080
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hostile work environment because Laux’s conduct was not severe or
pervasive. See Hockman, 407 F.3d at 326. Williams’s sexual
harassment claim consists of only three incidents involving Laux.
When compared to cases in which this court has afforded relief,
these incidents were simply not frequent or serious enough to
alter Williams’s work environment. Compare id. at 328-29
(finding that the defendant’s actions of making one remark to the
plaintiff about another employee’s body, slapping the plaintiff
on her behind with a newspaper, grabbing or brushing against the
plaintiff’s breast or behind, attempting to kiss the plaintiff on
one occasion, and standing in the door of the women’s bathroom
while the plaintiff was washing her hands were isolated,
nonserious events that did not qualify as a hostile work
environment), with Mota, 261 F.3d at 524 (finding that repeated
sexual advances in the face of adamant refusals by the plaintiff
were sufficiently extreme to qualify as a hostile work
environment). Because we find that Williams cannot show that the
harassment affected a term, condition, or privilege of her
employment, the district court properly granted summary judgment
on Williams’s hostile work environment claim.
2. Sex Discrimination
Williams next argues that the district court improperly
granted summary judgment in favor of the Navy on her sex
discrimination claim brought under Title VII. According to
No. 05-30080
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Williams, she established a “strong discrimination case” by
alleging that: (1) Snow relocated Williams to a space outside of
Snow’s office with telephone triage duties for one week; and (2)
the Command replaced twenty percent of Williams’s duties as
diabetic educator without a reduction in salary.
The Navy contends, and Williams does not dispute, that the
burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), governs Williams’s Title VII claim for sex
discrimination. Under the McDonnell Douglas framework, a
plaintiff carries the initial burden of proving a prima facie
case of discrimination by a preponderance of the evidence.
McDonnell Douglas, 411 U.S. at 802. To maintain a prima facie
case of sex discrimination, a plaintiff must establish that: (1)
she belongs to a protected class; (2) she was qualified for her
position; (3) she suffered an adverse employment action; and (4)
her employer treated others similarly situated more favorably.
Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 206 (5th Cir.
1998). Because there is no dispute that Williams satisfies the
first two elements, we need to consider only the third and fourth
elements.
In this circuit, a plaintiff must show that the employer
made an ultimate employment decision to establish that the
plaintiff has suffered an adverse employment action. Hernandez
v. Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th Cir.
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2003). Ultimate employment decisions include hiring,
discharging, promoting, compensating, and granting leave. Id.
This court has found that the loss of some job responsibilities
does not qualify as an ultimate employment decision. See Mota,
261 F.3d at 521; see also Hernandez, 321 F.3d at 532 n.2 (listing
cases with activities that this circuit has held do not
constitute ultimate employment decisions); Watts v. Kroger Co.,
170 F.3d 505, 511-12 (5th Cir. 1999) (finding that a change in
the employee’s work schedule and a request that the employee
perform new job tasks were not ultimate employment decisions).
Although Williams has alleged that she was relocated with new job
responsibilities for one week and that the Navy removed twenty
percent of her job duties without a reduction in pay, these
allegations do not involve ultimate employment decisions by the
Navy. See Mota, 261 F.3d at 521. Accordingly, the district
court properly granted the Navy’s motion for summary judgment.
3. Retaliation
Williams next argues that the district court incorrectly
granted summary judgment in favor of the Navy on her retaliation
claim on the basis that she did not establish a prima facie case
of retaliation. According to Williams, the relocation of her
work station for one week and the loss of her diabetic education
duties constitute retaliation.
This court analyzes retaliation claims under the McDonnell
No. 05-30080
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Douglas framework, so Williams bears the initial burden of
proving a prima facie case of retaliation by a preponderance of
the evidence. Hockman, 407 F.3d at 330. To establish a prima
facie case of retaliation, Williams must show that: (1) she
engaged in a protected activity as described in Title VII; (2)
she suffered an adverse employment action; and (3) a causal nexus
existed between the protected activity and the adverse employment
action. Mota, 261 F.3d at 519.
For the reasons stated previously, Williams has failed to
show that the Navy’s actions constituted an adverse employment
action. Accordingly, the district court correctly granted
summary judgment on Williams’s retaliation claim.
B. Award of Costs
Finally, Williams raises two arguments on appeal relating to
the district court’s award of costs to the Navy. First, she
argues that the district court erred in awarding costs because
Louisiana law does not allow a court to award costs not
originally demanded by a party unless certain criteria are met.
Second, she contends that the district court erred in awarding
costs because the Navy did not request costs but specifically
prayed that each party bear its own costs.
FED. R. CIV. P. 54(d)(1) provides that “costs other than
attorneys’ fees shall be allowed as of course to the prevailing
party unless the court otherwise directs . . . .” This rule
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further requires that the opposing party object to the bill of
costs within five days after costs are taxed. See id. (“On
motion served within 5 days [after costs are taxed], the action
of the clerk may be reviewed by the court.”). In Prince v.
Poulos, 876 F.2d 30, 33 (5th Cir. 1989), the appellant contended,
as Williams does now, that the appellees should not be awarded
costs because they did not specifically request them. We
rejected this argument, instead finding that the appellant waived
his objection to the bill of costs because he failed to object to
the costs within the five-day period under FED. R. CIV. P. 54(d).
Id. at 34. Because Williams similarly has failed to file a
motion objecting to the award of costs within the five-day
period, we find that Williams has waived her objection to the
bill of costs. Therefore, we need not reach the merits of
Williams’s argument.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.