* Local Rule 47.5 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that Rule, the Court has determined that this

opinion should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-50684

Summary Calendar

_______________________

KIM YVONNE TREVILLION,

Plaintiff-Appellant,

versus

TEXAS REHABILITATION COMMISSION, ET AL.

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(SA-94-CV-642)

_________________________________________________________________

April 17, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

Kim Yvonne Trevillion ("Trevillion") appeals the district

court's grant of summary judgment in favor of her employer, Texas

Rehabilitation Commission (“TRC”), on Trevillion's claims that she

was sexually harassed and that TRC terminated her employment in

unlawful retaliation for her reporting this alleged harassment.

After reviewing the evidence in the light most favorable to
 

* Trevillion was transferred to the San Antonio branch of

the TRC from the Austin office as part of a mediated settlement

agreement of a prior lawsuit filed by Trevillion that alleged

racial discrimination and retaliation under Title VII.

2

Trevillion, this court affirms.

BACKGROUND

Trevillion transferred to the San Antonio-North Field

Office of the TRC early in 1993.* On March 17, 1993, Trevillion

was admonished by her supervisor, Eliseo Smith (“Smith”), for

complaints of rudeness filed against her by a TRC client, John

Buckley. The very next day, Trevillion complained to the regional

director of the TRC that she had been sexually harassed by Smith in

January and February of 1993. As soon as a formal complaint of

sexual harassment was completed by Trevillion, the complaint was

immediately investigated by the area manager for TRC, Jerry Crain

(“Crain”). Smith denied all allegations of sexual harassment and

Crain concluded that there was no evidence of such harassment.

Besides the alleged incidents of harassment in January and February

of 1993, Trevillion alleged no further sexual harassment.

Because complaints from co-workers and clients about

Trevillion had grown steadily, Smith and Crain discussed these

complaints with her. On May 12, 1993, Trevillion was given a

written warning urging her to rectify the recurring complaints.

Since the complaints continued, on July 2, 1993, Trevillion was

placed on conditional employment. On August 26, 1993, she was

notified that TRC was considering action adverse to her continued

employment and, on August 31, 1993, Trevillion was terminated.
3

After unsuccessfully seeking relief with the Equal

Employment Opportunity Commission, Trevillion was issued a right to

sue letter and the instant lawsuit followed. In this lawsuit,

Trevillion complains that she was sexually harassed at TRC and was

unlawfully terminated after she reported this alleged harassment.

DISCUSSION

This court reviews the district court's grant of summary

judgment de novo, employing the same criteria used in that court.

Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 588 (5th Cir.

1995). Summary judgment is proper only "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(c). Factual

questions and inferences are viewed in the light most favorable to

the nonmovant. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272

(5th Cir. 1994). 

Although Rule 56(c) requires the moving party to

demonstrate the absence of a genuine issue of material fact, a

dispute about a material fact is genuine only if the evidence is

such that a reasonable jury could return a verdict for the

nonmovant. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.

Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510 (1986). If the moving party

demonstrates the absence of a genuine issue of material fact, then

the nonmovant is burdened with establishing the existence of a
4

genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 585-87, 106 S. Ct. 1348, 1355-56 (1986). This

burden requires the nonmovant to do more than merely raise some

metaphysical doubt as to the material facts. Matsushita, 475 U.S.

at 586, 106 S. Ct. at 1355.

A. Sexual Harassment

In order to state a prima facie claim under Title VII for

unlawful sexual harassment in a hostile work environment,

Trevillion must demonstrate the following:

(1) membership in a protected group; (2)

subjection to unprovoked sexual advances, or

request for sexual favors, or other verbal or

physical conduct of a sexual nature; (3) but

for her sex, the plaintiff would not have been

the object of harassment; (4) the harassment

was sufficiently pervasive to alter the

conditions of employment and create an abusive

or hostile working environment; and (5) the

employer knew or should have known of the

harassment and failed to take prompt remedial

action.

Cortes v. Maxus Exploration Co., 977 F.2d 195, 198-99 (5th Cir.

1992). See also Jones v. Flagship Int’l, 793 F.2d 714, 719-20 (5th

Cir. 1986). 

As the district court correctly explained, TRC can only

be liable under Title VII for the sexual harassment allegedly

committed by Smith if it knew or should have known of the

harassment and if it failed to take prompt remedial action. See

Cortes, 977 F.2d at 198-99. Of course, it is Trevillion’s burden

to demonstrate that TRC both knew or should have known of the

harassment and that it failed to effectuate an appropriate remedy.

Carmen v. Lubrizol Corp., 17 F.3d 791, 794-95 (5th Cir. 1994) (per
5

curiam).

Because Trevillion cannot satisfy this burden, the

district court properly awarded summary judgment to TRC on

Trevillion’s claim of sexual harassment. Upon careful review, the

record demonstrates that TRC began an investigation immediately

upon receiving Trevillion’s complaint; that it interviewed both

parties the same day that the complaint was filed; that it

counseled Smith about the alleged harassment; and that no further

instances of sexual harassment were reported by Trevillion. Since

TRC took prompt remedial action to investigate and address

Trevillion’s complaint of sexual harassment, she cannot state a

prima facie case for unlawful sexual harassment in a hostile work

environment and summary judgment was properly granted to TRC on

this claim.

B. Retaliatory Discharge

Similarly, in order to state a prima facie case of

unlawful retaliation, Trevillion must establish

(1) that she engaged in a statutorily

protected activity; (2) that she experienced

an adverse employment action following the

protected activity; and (3) that a causal link

exists between the protected activity and the

adverse employment action.

Nowlin v. Resolution Trust Corp., 33 F.3d 498, 507 (5th Cir. 1994).

A rebuttable presumption of discrimination arise only if Trevillion

proves these elements. See Bodenheimer v. PPG Industries, Inc., 5

F.3d 995 (5th Cir. 1993).

Of course, even if a rebuttable presumption of

discrimination arises, TRC can rebut this presumption by
6

articulating a legitimate, non-discriminatory reason for the

decision to terminate Trevillion. Wilson v. Belmont Homes, 970

F.2d 53, 57 (5th Cir. 1992). If such a reason is articulated by

TRC, Trevillion must demonstrate that the reason was merely

pretextual and that retaliation was the actual cause for her

termination. St. Mary’s Honor Center v. Hicks, ___ U.S. ___, 113

S. Ct. 2742, 2752 (1993).

The record unambiguously chronicles that TRC had received

numerous complaints about Trevillion and that, as a result, TRC had

a legitimate, non-discriminatory reason to terminate her

employment. Trevillion, by contrast, can offer nothing short of

mere conjecture to refute this reasoning and to prove

discrimination. Of course, such conjecture is not sufficient to

withstand summary judgment for TRC. See Matsushita, 475 U.S. at

586, 106 S. Ct. at 1355; Little v. Republic Ref. Co., 924 F.2d 93,

96 (5th Cir. 1991) (explaining that “a plaintiff’s subjective

belief of discrimination, however genuine, cannot alone be the

basis for judicial relief.”). As a result, summary judgment was

also appropriate for TRC on Trevillion’s claim of unlawful

retaliation.

CONCLUSION

For the foregoing reasons, this court AFFIRMS the

district court's judgment granting TRC summary judgment against

Trevillion's claims of sexual harassment and retaliatory discharge.