* Pursuant to 5 T H 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this opinion should not be published and is not precedent except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 5 TH Cir. R. 47.5.4.

1 Although there is no individual liability under Title VII,

Braxton was named as a defendant because Clark had also asserted

state law tort claims against him. Clark has not appealed the

dismissal of her state law claims.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________

No. 01-60740

(Summary Calendar)

_______________________________

RHONDA CLARK,

Plaintiff-Appellant,

versus

BALLY’S TUNICA, INC. a/k/a BALLY’S HOTEL AND CASINO;

and EDRIC BRAXTON,

Defendants-Appellees.

_________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(2:00-CV-112)

_________________________________________________ May 1, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM * :

Plaintiff-Appellant Rhonda Clark appeals the district court’s

order granting summary judgment to defendants-appellees Bally’s

Tunica, Inc. (Bally’s) and Edric Braxton, 1 dismissing her Title VII

claims for sexual harassment and creation of a hostile work2

environment. Agreeing with the district court, we affirm.

I.

FACTS AND PROCEEDINGS

Clark’s duties as a cashier at Bally’s included providing

coin s to the employees who filled slot machines. Braxton was a

slo t machine supervisor who, during work hours, was frequently

present in the same area as Clark and had routine contact with her.

As he only supervised slot machine attendants, Brax ton had no

supervisory control or direct authority over Clark.

At one point during their employment at Bally’s, Braxton began

making advances to Clark. Over the course of one or two months,

Braxton caressed Clark’s hands, told her that she had “bedroom

eyes,” expressed his desire to kiss her all over, and told Clark to

inform her mother that he would be her new son-in-law. Although

Clark felt uncomfortabl e with Braxton’s actions and remarks, she

did not immediately report them to her superiors.

A few weeks later, as Clark was walking with a male co-worker,

Braxton approached her, grabbed her by the arm, and informed her

that he did not want her seeing other men. On the next workday,

Clark reported Braxton’s actions to another slot machine

supervisor, who, in response, advised Clark to report the incident

to her immediate supervisor, Sue Cerbe. After reporting the

incident to Cerbe, Clark was directed to fill out an incident

report, which Cerbe forwarded to Bally’s Human Resource Department.2 She maintains that she voluntarily quit, whereas Bally’s

maintains that she was fired after failing to return to work.

3 The day after receiving the incident report, Neil Davidson, a

Bally’s employment manager, began an investigation. This included

interviews with Braxton, Clark, and other co-workers.

After Clark submitted her report and returned to work, there

was one workday during which she was fo rced to come into contact

with Braxton. According to Clark, Braxton gave her angry looks and

snatched money out of her hands.

At the conclusion of Davidson’s investigation, Bally’s

suspended Braxton for five days for failure to comply with a

company directive during an investigation and for exercising poor

judgment in his comments to his co-workers. Braxton was informed

that his alleged conduct towards Clark was im proper and

unacceptable, and he was warned that retaliation against Clark or

continued instances of improper b ehavior would result in further

discipline, possibly including termination.

After Braxton was disciplined, Davidson phoned Clark to tell

her that remedial action had been taken against Braxton. Davidson

encouraged Clark to return to work, assuring her that her safety

was not at risk and that if any further proble ms with Braxton

should be reported, they would be dealt with. Clark nevertheless

refused to return to work. 2 By her own admission, she did not

receive harassing comments fro m Braxton after her complaint was

filed. Rather, she cited ostracism by her other co-workers as the3 The alleged ostracism from her co-workers was apparently

related to the filing of her incident report against Braxton.

4 Fed. R. Civ. P. 56(c); C elotex Corp. v.Catrett

, 477 U.S.

217 (1986).

5 Casiano v. AT&T Corp. , 213 F.3d 278 (2000).

6 793 F.2d 714 (5th Cir. 1986) (cited in S kidmore v.

Precision Printing and Packaging Inc.

, 188 F.3d 606 ( 5th Cir.

1999)).

4 reason for refusing to return to work. 3

Clark then filed an EEOC charge, and subsequently filed this

suit against Bally’s. The district court granted summary judgment

in favor of Bally’s, holding that Clark could not raise a genuine

dispute of material fact on all necessary elements of her Title VII

claim. Clark timely filed a notice of appeal.

II.

ANALYSIS

We review the district c ourt’s grant of summary judgment d e

novo

. 4 As Bally’s did not take any adverse employment action

against Clark, her complaint must be treated as a hostile work

environment claim. 5 We held in J ones v. Flagship International 6

that, to prevail on a hostile work environment claim, a plaintiff

in Clark’s position must prove that (1) she was a member of a

protected class, (2) she was subjected to unwelcome harassment, (3)

the harassment was based on sex, (4) it affected a term, condition,

or privilege of her employment, and (5) her employer knew or should7 I d. We note that after the Supreme Court’s decisions in

Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca

Raton

, the Fla gship five-factor analysis is only applicable to

cases involving harassment by a co-worker. This case presents

somewhat of a hybrid: Although Braxton was not Clark’s supervisor

and did not possess direct authority over her, he was employed in

a managerial role, which may have given him some measure of

inf luence and weight with Clark’s supervisors. Both parties and

the district court, however, have analyzed this case under the

Flagship fact ors and we follow suit. In any case, even if the

Ellerth/Faragher analysis were to apply, we would reach the same

result.

5 have known of the harassment but failed to take prompt remedial

action. 7

Regarding the fourth factor, Braxton’s harassment must be

sufficiently pervasive and severe as to alter the terms and

conditions of Clark’s employment. Although we are doubtful whether

the seriousness and duration of Braxton’s actions in this case

rise to such an actionable level under Title VII, we assume, for

the sake of argument, that they do. Even assuming, a rguendo

, that

Clark could meet the fourth factor, however, we are convinced that

she cannot raise a genuine dispute of fact as to the fifth factor

—— employer scienter and inaction

—— and therefore a ffirm the

judgment of the district court.

The summary judgment evidence presented demonstrates that, on

receiving Clark’s incident report, Bally’s immediately commenced

and prosecuted an investigation. Within a week or two after

commencing its investigation, Bally’s concluded it an d imposed a

punishment on Braxton that was reasonably calculated to convey to6

him that his conduct was improper and u nacceptable, and that

further conduct of that or a retaliating nature would result in

more severe sanctions. Although Bally’s did not fire Braxton, its

remedial action was prompt and Clark was not sexually harassed by

him afterwards, even in the one instance in which she worked near

him after the fil ing of her complaint. Under these facts, Clark

cannot maintain a hostile work environment claim against Bally’s.

Therefore, the district court’s summary dismissal of her action was

proper.

III.

CONCLUSION

For the foregoing reasons, the district court’s grant of

summary judgment in favor of Bally’s is

AFFIRMED.