* Pursuant to Local Rule 47.5, the court has det ermined t hat this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in Local Rule 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30502

(Summary Calendar)

LINDA S. BROWN

Pl aintiff-Appellant,

versus

FFP OPERATING PARTNERS, L.P.

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

(94-CV-1610)

May 6, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM: *

Linda S. Brown (“Brown”), appeals to this court the district court’s grant of Summary

Judgment in favor of Defendant FFP Operating Partners, L.P., (“FFP”) regarding her claim for sexual

harassment. After careful review of the record and the briefs, we affirm for essentially the reasons

stated by the district court.1 FFP maintains that Jeter was terminated because of auditing discrepancies. Brown maintains

that Jeter was terminated because the investigation confirmed her allegations.

2 FACTS

In the late summer of 1993, Brown began working for KWIK-PANTRY, owned by FFP. She

was hired by the store manager, Richard Jeter (“Jeter”). In his position as store manager, Jeter had

the authority to hire, fire, pr o mo te, delegate and designate schedules. Brown alleges that Jeter

subjected her to continuous sexual harassment in the form of offensive touching, grab bing, and

propositioning her fo r sex, from the beginning of her employment until Jeter terminated her in

January, 1994.

When Brown began her employment at KWIK-PANTRY, Robin Bamburg (“Bamburg”) was

Jeter’s im mediat e supervisor. Apparently, Bamburg did not keep an open line of communication

between herself and the employees under her supervision. Bamburg retained her position until the

lat ter part of December 1993, when she was replaced by Joann Hayes (“Hayes”). In any event

,

Brown did not report Jeter’s conduct to Bamburg.

In January 1994, Jeter transferred Brown to the night shift. During Brown’s first two nights

on the night shift, a young man robbed the store. Fearing for her safety, Brown refused to work the

night shift. When she refused, Jeter fired her. The day after she was fired, Brown reported Jeter’s

alleged sexual harassment to Hayes. Hayes immediately initiated an investigation into the allegations,

which ultimately led to Jeter’s termination. 1

After returning from a stint on unpaid leave, Brown worked under Jeter’s replacement until

February 1994, when she was fired again.3

Brown filed suit against FFP and Jeter, claiming sexual harassment and retali a tory termination.

She alleged that the defendants violated her rights under Title VII of the Civil Rights Act of 1964,

Section 701, et seq., as amended, 42 U.S.C. 2000(e), et seq., The Civil Rights Act of 1991, and LSA

51:2231.

FFP moved for summary judgment. On July 26, 1995, the district court granted the motion

for summary judgmen t regarding the sexual harassment claim, but denied summary judgment

regarding the retaliatory termination claim. Brown now appeals to this Court the granting of t he

summary judgment as to the sexual harassment claim.

DISCUSSION

For summary judgment purposes, this Court inquires whether there is evidence in the district

court record that creates a genuine issue of material fact regarding Brown’s allegations against Jeter.

See Brooks, Tarlton, Gilbert, Douglas & Kress ler v. United States Fire Ins. Co., 832 F.2d 1358,

1364 (5th Cir. 1987). We have also held that in order to establish an actionable claim of sexual

harassment in the work place, the plaint iff, Brown, must demonstrate five elements. The elements

are: (1) that she belongs to a protected class; (2) that she was subject to unwelcome sexual

harassment; (3) that the harassment was ba sed o n sex; (4) that the harassment affected a “term,

condition or privilege of employment”; and (5) that the employer either knew or should have known

of the harassment and failed to take prompt remedial action. Jones v. Flagship International

, 793

F.2d 714,719-20 (5th Cir. 1986), cert. denied , 479 U.S. 1065 (1987).

The district court granted summary judgment in favor of FFP on the fift h element. In reaching

its conclusion, the district court relied exclusively on our prior decision in Nash v. Electronics System,

Inc

., 9 F.3d 401 (5th Cir. 1993). In Nash

, a clerical worker accused her supervisor of harassment.4

Because there was no evidence that the offensive behavior took place in public, the Court found that

the employer was without knowledge of the beh avior until Nash reported i t to the personnel

department. Upon le arning of the allegations, the company immediately initiated an investigation

which proved to be inconclusive. Nash , 9 F.3d at 403. Nevertheless, the company transferred Nash

to another department, with no loss of pay, to avoid contact with the supervisor. I d. at 404. Finding

no liabilit y, this Court reiterated the principle that an employer is liable only if it knew or should have

known of the employee’s offensive conduct and did not take any steps to repudiate that conduct and

eliminate the hostile environment. Jones , 793 F.2d at 720.

In its Memorandum Ruling, the district court stated that “FFP’s response to plaint iff’s

complaint was remarkably similar to the employer’s response in Nash .” The court also concluded

that “it would be unlikely for the offensive conduct alleged here

-- sexually suggestive questions and

co mments -- to be voiced in the public.” Thus, the Court followed N ash and concluded from the

summary judgment record that the employer had no notice until Brown made her allegations.

Here, t here was evidence that some of Jeter’s actions were witnessed in public by a coworker, Shondala Reed. The problem, however, is that there is no evidence that the hierarchy of FFP

knew of the improper behavior before Brown made a formal complaint. Brown argues that Jeter’s

abilit y to make personnel decisions, such as hiring and firing, renders him a part of management thus

imputing FFP with knowledge of his behavior. We have consistently held that Title VII is not a strict

liabilit y statute and there is no reason to depart from that reasoning in the instant case. Nash

, 9 F3d.

at 404.

The earliest that FFP can be said to have known of Jeter’s actions was when Brown finally

made a formal complaint to Hayes. On several occasions Brown had the opportuni ty to report Jeter5

to Bamburg, but failed to do so because of Bamburg’s alleged lack of an open communications line

with the KWIK-PANTRY employees. This contention is speculative at best because neither Brown

nor her co-workers ever attempted to communicate to Bamburg about any sexual harassment.

Despite Bamburg’s seemingly unapproachable demeanor, Br o wn had no idea whether Bamburg

would have been

recept ive to hearing such a charge. Moreover, Brown’s failure to complain to

Bamburg prevented FFP from taking immediate steps to eliminate the offensive conduct.

Because Brown failed to report Jeter’s beha vior to Bamburg—or to her supervisor—we

cannot say that FFP knew or should have known about Jeter’s improper actions and failed to take

prompt remedial action. On the contrary, upon learning of Jeter’s actions from Brown’s complaint,

an immediate investigation took place and FFP offered Brown alternative employment opportunities

so she could avoid contact with Jeter. Consequently, like the district court, we hold that Brown failed

to establish that FFP knew or should have kno wn o f Jeter’s improper behavior and failed to take

prompt remedial action.

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.