* 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. 08-30443

TRAZILA PAUL

Plaintiff - Appellant

v.

NORTHROP GRUMMAN SHIP SYSTEMS

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:07-CV-3766

Before KING, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Trazila Paul brought this Title VII action against Northrop Grumman

Ship Systems (“Northrop”), alleging that she was sexually harassed while

employed by Northrop. Paul appeals the district court’s grant of summary

judgment in favor of Northrop. For the following reasons, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

February 5, 2009

Charles R. Fulbruge III

Clerk
No. 08-30443

2

I. FACTS AND PROCEEDINGS

On May 10, 2006, Paul, a female, was employed by Northrop as a

cableman. She was working on a new ship under construction in one of

Northrop’s shipyards, along with several other Northrop employees, including

Corey Barattini. At that time, Barattini, a male, was employed as a line

foreman in Northrop’s electrical department; there was some debate in the

proceedings below as to whether he had supervisory authority over Paul. 

Paul alleges that, on that day, Barattini walked up to her until his chest

was touching hers, thus “chesting up” to her breasts in a thirty-second

confrontation. As Paul attempted to separate herself, he stared at her in a

hostile and intimidating manner. Paul then walked away toward a narrow ship

passageway, but Barattini followed her. He forced his way through the door

ahead of her, and, in doing so, placed his hand on her stomach and ran his arm

around her waist. As he squeezed past her in the passageway, he allegedly

“rubbed his pelvic region across [her] hips and buttocks.” According to Paul, the

incident lasted a total of approximately a minute and a half, and occurred in the

presence of another supervisor who did not intervene.

Northrop has provided an account of the subsequent events, which Paul

does not dispute. Paul immediately reported the incident to her work leaderman

and Union Steward. She was placed in a different office for the rest of the day

so she would not have to interact with Barattini. The next day, Paul and her

Union Steward notified Northrop’s Labor Relations Department. Northrop

promptly investigated the incident. During the investigation, Paul was referred

to Northrop’s Employee Assistance Program and was granted a request for an

extended medical leave of absence. Based on its investigation, Northrop initially

suspended Barattini on May 16, 2006, and later terminated him. Barattini filed
No. 08-30443

3

a complaint under Northrop’s Dispute Resolution Procedure and was ultimately

reinstated to his line foreman position without backpay.

In July 2007, Paul commenced this Title VII action, alleging sexual

harassment and seeking lost wages due to disability, damages for continuing

emotional distress and physical pain and suffering, punitive damages, and

attorney’s fees. Northrop filed a motion to dismiss or, in the alternative, motion

for summary judgment, which the district courttreated as a motion for summary

judgment because Northrop had submitted materials outside the pleadings along

with its motion. The district court granted summary judgment in favor of

Northrop, holding that the alleged conduct was not sufficiently severe or

pervasive to constitute an actionable Title VII claim for hostile work

environment resulting from sexual harassment. Paul appeals.

II. STANDARD OF REVIEW

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

applying the same legal standards as the district court.” Condrey v. SunTrust

Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). On review of a grant of summary

judgment, “[t]he evidence and inferences from the summary judgment record are

viewed in the light most favorable to the nonmovant.” Minter v. Great Am. Ins.

Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005). Typically, “[s]ummary judgment

is proper when the pleadings and evidence demonstrate that no genuine issue

of material fact exists and the movant is entitled to judgment as a matter of

law.” Condrey, 429 F.3d at 562 (internal quotations omitted); see also FED. R.

CIV. P. 56(c).

III. DISCUSSION
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4

An action for sexual harassment in violation of Title VII requires the

plaintiff to demonstrate “that the harassment created a hostile or abusive

working environment.” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428,

434 (5th Cir. 2005). This type of claim “embodies a series of criteria that express

extremely insensitive conduct against women, conduct so egregious as to alter

the conditions of employment and destroy their equal opportunity in the

workplace.” DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593

(5th Cir. 1995). To set forth a proper hostile work environment claim based on

sexual harassment by a co-worker, a plaintiff 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 [her]

employment; and (5) her employer knew or should have known of

the harassment and failed to take prompt remedial action.

Harvill, 433 F.3d at 434 (internal quotation omitted).

However, this court has recognized that, following the Supreme Court’s

holdings in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), only the first four elements

need to be satisfied when the alleged harasser had supervisory authority over

the employee. See Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). In any

event, the district court in the present case did not reach the applicability of the

fifth element ofthe test because it held that, regardless of whether Barattini had

supervisory authority over Paul, the alleged harassment did not affect “a term,
No. 08-30443

1 For the same reason, the district court did not address the applicability of the

Ellerth/Faragher affirmative defense. Even where the alleged harasser had supervisory

authority over the plaintiff, an employer is afforded an affirmative defense to claims of

vicarious liability for sexual harassment, provided “no tangible employment action[was]taken

against the aggrieved employee.” Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 479 n.3

(5th Cir. 2008). “To satisfy the affirmative defense, the employer must show by a

preponderance ofthe evidence: ‘(a)that the employer exercised reasonable care to prevent and

correct promptly any sexually harassing behavior, and (b) that the plaintiff employee

unreasonably failed to take advantage of any preventative or corrective opportunities provided

by the employer or to avoid harm otherwise.’” Id. (quoting Ellerth, 524 U.S. at 765).

5

condition, or privilege of employment.”1 Paul contends that this holding was

error. 

“To affect a term, condition, or privilege of employment, the harassment

must be sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Aryain, 534 F.3d at

479 (internal quotation and alterations omitted). The alleged conduct “must be

both objectively offensive, meaning that a reasonable person would find it hostile

and abusive, and subjectively offensive, meaning that the victim perceived it to

be so.” Harvill, 433 F.3d at 434 (quotation omitted). Further, it is examined

under a “totality of the circumstances” test, which considers “the frequency of

the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Id. (quoting Harris v.Forklift

Systems, Inc., 510 U.S. 17, 23 (1993)).

Importantly, the “severe or pervasive” requirement “is stated in the

disjunctive.” Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th

Cir. 2007). This court has therefore recognized that:

[a]n egregious, yetisolated, incident can alter the terms, conditions,

or privileges of employment and satisfy the fourth element
No. 08-30443

6

necessary to constitute a hostile work environment. The inverse is

also true: Frequent incidents of harassment, though not severe, can

reach the level of pervasive, thereby altering the terms, conditions,

or privileges of employment such that a hostile work environment

exists. Thus, the required showing of severity or seriousness of the

harassing conduct varies inversely with the pervasiveness or

frequency of the conduct.

Id. (internal quotations and citations omitted). Accordingly, while an isolated

incident—reflecting conduct that is not pervasive or frequent—may be

sufficiently severe to constitute sexual harassment, it must be “extremely

serious” in order to “amount to discriminatory changes in the ‘terms and

conditions of employment.’” Id. (quoting Faragher, 524 U.S. at 788). As this

court recently noted, “[t]he determination of whether alleged conduct is

sufficiently severe or pervasive is not an exact science, but this [c]ourt’s decisions

on this issue provide guidance.” Gibson v. Potter, 264 F. App’x 397, 400 (5th Cir.

2008). 

The type of non-consensual physical touching alleged by Paul was held to

be actionable under Title VII only in cases where it was chronic and frequent.

See McKinnis v. Crescent Guardian, Inc., 189 F. App’x 307, 310 (5th Cir. 2006)

(holding that chronic unwanted touching, including touching on the breasts and

thigh over a year-long period, repeated demands for “hugs and kisses,” and other

inappropriate behavior resulting in plaintiff’s resignation, supported a hostile

work environment claim); Harvill, 433 F.3d at 435–36 (holding that repeated

unwanted fondling and rubbing of plaintiff’s breasts and buttocks and unwanted

kissing on the cheek over a seven-month period, despite her protests on every

occasion, was sufficiently severe or pervasive). In these cases, the pervasiveness

of the alleged conduct was sufficient to alter the terms or conditions of the
No. 08-30443

2

In addition, the district court’s summary judgment order notes that counsel for Paul

admitted during oral argument that the alleged conduct was not pervasive. Paul does not

dispute having made such admission.

7

plaintiff’s employment. By contrast, Paul’s sexual harassment claim relies

exclusively on a single confrontation with Barattini, which, according to her

brief, lasted a total of approximately a minute and a half. We therefore agree

with the district court’s finding that Barattini’s alleged conduct was clearly not

pervasive,2 and are left with the task of assessing its severity.

This circuit’s case law reveals that isolated incidents may form the basis

for a sexual harassment claim in cases where the alleged conduct was

particularly egregious. See Taylor-Rogers v. Robb & Stucky, Ltd., 82 F. App’x

974, 975 (5th Cir. 2003) (evidence that a co-employee rubbed up against plaintiff

on a daily basis, and had simulated a sex act with her, unbuttoned her blouse

and touched her breast underneath her bra, was “sufficient to create a genuine

issue of material fact as to the severity and pervasiveness of the harassment”).

However, in circumstances where the alleged conduct was either similar, or

more objectionable and frequent than, Barattini’s, this court has held that nonpervasive conductinvolving physicaltouching—including unwanted touching of

intimate body parts—was not actionable under Title VII. See Gibson, 264 F.

App’x at 398 (holding that conduct of supervisor who “grabbed [plaintiff] on the

buttocks and made suggestive comments” while she was conversing with another

employee was not “sufficiently severe or pervasive to alter a term or condition

of [plaintiff’s] employment”); Hockman v. Westward Commc’ns, LLC, 407 F.3d

317, 328 (5th Cir. 2004) (holding that sexually suggestive comments, slapping

plaintiff on the behind with a newspaper, grabbing or brushing up against

plaintiff’s breasts and behind, and attempting to kiss plaintiff did not qualify as
No. 08-30443

8

severe); Derouen v. Carquest Auto Parts, Inc., No. 01-30369, 2001 WL 1223628,

at *1 (5th Cir. Sept. 24, 2001) (holding that plaintiff’s allegations that co-worker

attempted to grab her breast and later touched and rubbed her thigh, that

customers made sexually threatening remarks, and that supervisors did not

respond to her complaints about these incidents, did not support a hostile work

environment claim).

Paul’s claims are distinguishable from cases where the alleged conduct

was sufficiently “severe or pervasive” to alter the terms or conditions of a

plaintiff’s employment. The facts in this case fall much closer to those in Gibson,

Hockman, and Derouen, where this court held that isolated incidents involving

similar intimate body touching did not rise to a sufficient level of severity. We

therefore agree with the district court that, while Barattini’s alleged conduct

may have been “subjectively offensive” and evidently greatly upset Paul, it was

not “objectively offensive” enough to amount to a change in the terms or

conditions of Paul’s employment. Accordingly, the district court properly held

that Paul failed to raise a genuine issue of material fact to support her claim of

hostile work environment. 

IV. CONCLUSION

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

AFFIRMED.