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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30872

Summary Calendar

LESLIE A. MAY,

Plaintiff-Appellant,

v.

FEDEX FREIGHT EAST, INC., TODD WATSON,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

U.S.D.C. Case No. 07CV660

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Leslie A. May appeals the district court’s grant of

summary judgment in favor of the Defendant-Appellee, Fedex Freight East, Inc.

(“Fedex”). For the reasons discussed in greater detail below, we find that the

district court did not err when it granted Fedex’s motion for summary judgment

on May’s Title VII sexual harassment/hostile work environment claim.

Accordingly, we AFFIRM the judgment of the district court.

United States Court of Appeals

Fifth Circuit

F I L E D

March 22, 2010

Charles R. Fulbruge III

Clerk

Case: 09-30872 Document: 00511057640 Page: 1 Date Filed: 03/22/2010
No. 09-30872

 Plaintiff-Appellant’s May 31, 2007 EEOC Charge alleges the same. 1

 May’s complaint included additional state claw claims against Todd Watson. The 2

district court, however, declined to exercise 42 U.S.C. § 1367 supplemental jurisdiction over

May’s state law claims against Watson. May is not appealing the district court’s dismissal of

her state law claims, and as a result, we consider only whether the district court erred in

granting judgment on her sexual harassment/hostile work environment claim against Fedex.

2

On February 13, 2007, May filed a charge questionnaire with the EEOC

alleging that she had been subjected to sex discrimination and a hostile work

environment at Fedex. After receiving a right to sue letter from the EEOC, 1

May filed her lawsuit against FedEx in federal district court. On August 12, 2

2009, the district court granted Fedex’s motion for summary judgment and

entered judgment on May’s sexual harassment/hostile work environment claim.

May timely filed her appeal.

“This court reviews a district court’s grant of summary judgment de novo,

applying the same standards as the district court.” Allen v. McWane, Inc., 593

F.3d 449, 450 (5th Cir. 2010). Summary judgment is warranted 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). “If the record,

taken as a whole, could not lead a rational trier of fact to find for the non-moving

party, then there is no genuine issue for trial.” Harvill v. Westward Commc’n,

L.L.C., 433 F.3d 428, 433 (5th Cir. 2005) (quotation marks and citation omitted).

In order to establish a hostile work environment claim, May must

demonstrate that “(1) she is [a] member of a protected group; (2) she was the

victim of uninvited sexual harassment; (3) the harassment was based on sex; (4)

the harassment affected a term, condition, or privilege of [May’s] employment;

and (5) her employer knew or should have known of the harassment and failed

to take prompt remedial action.” Id. at 434 (quotation marks and citation

omitted). May argues that the district court erred in granting summary

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No. 09-30872

 “Title VII does not require that an employer use the most serious sanction available

3

to punish an offender, particularly where, as here this was the first documented offense by

[the] individual employee.” Landgraf v. USI Film Products, 968 F.2d 427, 430 (5th Cir. 1992).

3

judgment for Fedex because it found that the harassing conduct was not severe

or pervasive, and because the district court concluded that her employer had not

failed to take prompt remedial action. Our review of the record, however, leads

us to the conclusion that May cannot establish the fifth element– that her

employer “knew or should have known of the harassment and failed to take

prompt remedial action” Id. at 434 (quotation marks and citation omitted), and

as a result, we conclude that the district court did not err in its determination

that May cannot establish a prima facie case of sexual harassment. 

The record indicates that when May notified her managing supervisor,

Chris Panks, on September 17, 2006, that she had been subjected to sexual

harassment, Panks immediately initiated an investigation that resulted in a

written warning and temporary suspension for the offending Fedex employee,

Todd Watson. Because Watson’s record was otherwise clean and this constituted

his first offense, Fedex determined that temporary suspension was a sufficient

response to Watson’s misconduct. Notably, May does not contest that Panks

3

failed to take proper remedial action. Instead, May contends that she had

reported Watson’s harassment prior to her reporting it to Panks, when she told

her immediate supervisor, Louis Catton that “she felt uncomfortable about the

conduct of Watson.” Following her conversation with Catton, Fedex took no

remedial action. According to May, her conversation with Catton “put Fedex on

notice” that it needed to take remedial action, and Fedex failed to do take any

remedial action until after she reported Watson’s behavior to Panks on

September 17, 2006. 

Watson, however, is mistaken in her characterization of her conversation

with Catton as sufficient to put Fedex on notice that it should have taken

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 May does not contend that Panks was absent during her conversation with Catton.

4

 In her deposition, which Fedex submitted as evidence with its motion for summary 5

judgment, May openly acknowledges that Fedex’s anti-harassment policy required her to first

report Watson’s harassment to Panks, not to Catton.

 May does not dispute that Panks immediately began an investigation, interviewed co6

workers and various witnesses, and ultimately decided to temporarily suspend Watson’s

employment.

4

remedial action. This Court has long recognized that in order to demonstrate

that an employer has failed to take prompt remedial action, the employee must

first show that she took “advantage of [the] corrective opportunities provided by

the employer.” Harvill, 433 F.3d at 437. The undisputed facts in the present

record, however, establish that May’s conversation with Catton does not qualify

as May’s having taken advantage of the “corrective opportunities provided by the

employer.” Prior to commencing her employment with Fedex, May received,

read, and signed the “Fedex Freight East Associates Handbook.” In the

Handbook, May was instructed to report any and all incidents of harassment to

the managing supervisor, Chris Panks– and to only report incidents to Louis

Catton in the event of Chris Panks’s absence. 

4

Thus, the corrective procedure that Fedex provided– that May signed and

agreed to– instructed May to report any acts of harassment to Panks. Once 5

May reported the harassment to Panks, the undisputed facts in the record

demonstrate that Fedex did take prompt remedial action. Consequently, May’s 6

argument that Fedex failed to take remedial action in response to her

conversation with Catton does not support her hostile work environment claim.

This Court has long recognized that an employee cannot argue her employer

failed to take prompt remedial action when she failed to abide by the company’s

anti-harassment policy. See id. at 439 (concluding that employee’s failure to

report harassment in accordance with the stated company policy inexcusable

where the employee had “signed a document in which she acknowledged receipt

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No. 09-30872

 Because we conclude that the district court did not err in concluding that May cannot

7

establish the fifth element of her claim, we do not consider whether the district court was

correct to conclude that May could not establish that the sexual harassment was sufficiently

perverse or severe. 

5

of the employee handbook and stated that she understood the anti-harassment

policy.”). May “cannot prove that [Fedex] failed to take prompt remedial action

where she unreasonably failed to take advantage of corrective opportunities

provided by [Fedex].” Hockman v. Westward Commc’n, LLC, 407 F.3d 317, 330

(5th Cir. 2004). 

Accordingly, May’s hostile work environment claim fails since she cannot

establish the fifth element of her prima facie case. The undisputed facts in the 7

record demonstrate that as soon as May acted in accordance with Fedex’s antiharassment policy, Fedex “took the allegation seriously, it conducted prompt and

thorough investigations, and it immediately implemented remedial and

disciplinary measures based on the results of such investigations.” Waymire v.

Harris County, Tex., 86 F.3d 424, 428 (5th Cir. 1996) (quotation marks and

citation omitted). 

For the aforementioned reasons, we AFFIRM the judgment of the district

court.

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