UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GRACE WILSON,

Plaintiff-Appellant,

v.

No. 95-1831

SOUTHERN NATIONAL BANK OF NORTH

CAROLINA,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CA-93-274-3-P)

Submitted: May 7, 1996

Decided: August 8, 1996

Before WIDENER, MURNAGHAN, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Shelley Blum, Charlotte, North Carolina, for Appellant. Philip M.

Van Hoy, VAN HOY, REUTLINGER & TAYLOR, Charlotte, North

Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Grace Wilson appeals the district court's order granting summary

judgment to Appellee Southern National Bank of North Carolina ("the

Bank") in this action alleging employment discrimination based upon

sexual harassment. Because we find no reversible error, we affirm.

Wilson filed a complaint under Title VII of the Civil Rights Act of

1964, 42 U.S.C.A. § 2000e (West 1994), against her former

employer, the Bank. Wilson was employed at the Bank from March

13, 1991, until June 17, 1993. The complaint alleged that a male coworker sexually harassed Wilson and that the Bank retaliated against

her when she reported some of the alleged harassing incidents to her

supervisor. The complaint also included a state law claim for intentional infliction of emotional distress.

The Bank moved for summary judgment. Wilson belatedly

opposed that motion and filed her own motion for summary judgment

without supporting depositions. The district court granted summary

judgment to the Bank. Wilson timely appealed.

I.

Wilson and the Bank have very different accounts of what happened in the workplace. However, because Wilson did not provide

supporting depositions with her motion for summary judgment, the

district court relied on the portions of her deposition submitted by the

Bank and also on the unopposed depositions filed by the Bank. We

briefly detail the alleged events below.

A. The Hand-on-Hip and Rubber Band Incidents

Wilson alleged that in October or November 1991, Eric Wright, a

co-worker in her department, put his hand on Wilson's hip, licked his

lips, and said: "umm . . . I'd like to have some of that." Wilson turned

around and told Wright to keep his hands off of her. Wright then

threw his hands up in a surrendering motion and said, "oh, oh, oh."

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The alleged incident occurred in the workplace. Later that day, Wilson told Wright that she did not want anyone to touch her and asked

him not to do it again. Wright responded, "okay, okay, okay." Wilson

did not report the incident to a supervisor at the time. Wright never

did this to Wilson again. Later in the week, Wright shot Wilson in the

hip with as many as three rubber bands. Wilson returned fire with a

rubber band. Other workers, all female, also shot rubber bands.

About a week after the hand-on-hip incident, Wilson complained

about that incident and the rubber band incident to her department

supervisor, Richard Burch. Within four days of receiving Wilson's

complaint, Burch sent a memo and held a meeting (with Wright present) where he told the department employees that they should act in

a professional manner at work.

B. The Hiked Pants, Dirty Cartoons,

and "Older Women" Incidents

Wilson alleged that, after the above meeting with Burch, Wright

would "yank up his pants as high as he could get them so that [the

outline of] his genitals would show and then he would get in front of

your face." Wilson stated in her complaint that this occurred on several occasions. In her deposition, however, Wilson stated that the

behavior occurred "25 to 30 times." Wilson would turn away and ask

Wright to stop. Wilson never reported this alleged behavior to any

member of management.

Wilson also alleged that, after the meeting with Burch, some of her

co-workers would show her "dirty cartoons." Wright brought in one

of these cartoons, but a majority of them were brought in by a female

co-worker. The department's employees, both male and female, generally laughed and joked about the cartoons. When Wright showed

Wilson a cartoon, she turned away. When a female co-worker showed

Wilson a cartoon, she said she did not want to see it. Burch saw a cartoon and appeared to think it was funny. Wilson never reported the

cartoon incidents to management.

Wilson further alleged that Wright, who is half Wilson's age, told

Wilson twice that he preferred older women. Wilson never reported

this incident to management.

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C. The Clipboard Incident

Wilson alleged that on June 22, 1992, Wright "finished a session

of holding up his pants, . . ." while singing a song "about hips and

butts and things like that." Then, as Wilson was leaning over an office

machine that had jammed, Wright "whacked" her in the hip with a

clipboard. The whack "felt like bee stings" and Wilson was "stunned,"

"fell into the machine," "saw stars," and "had tears running from [her]

eyes." Other co-workers, mostly female, were present. Wilson alleged

that she could hear people laughing.

Wilson sought medical treatment about a week later, but did not

see a doctor because she did not have a workers' compensation report

and did not want to pay the doctor herself. Wilson eventually saw a

doctor six or seven weeks after the clipboard incident.

When the clipboard incident originally occurred, Wilson did not

report it to management because Burch was out of town. Wilson subsequently reported the incident to Burch. Wilson tried three times to

relate the incident to Burch's supervisor, Sheila Ezell, but was unable

to contact her. At Burch's recommendation, Wilson told Renita Barton, an Affirmative Action Coordinator in the Bank's Personnel

Department, that "[she] had been hit [and she] had a bruise on [her]

hip." Barton asked if Wilson wanted to file a workers' compensation

claim, but Wilson declined at that time. Burch called Wright into his

office and told him that "in no circumstances should [he] ever touch

another employee, and that there certainly shouldn't be any hitting of

another employee." Burch warned Wright that actions of that sort

could lead to Wright losing his job.

After the alleged clipboard incident, Wilson felt that a female coworker and Wright were teasing her because she complained to management. In response to Wilson's concerns, Burch transferred Wilson

to another department where she worked in a separate room with only

one other person. Wilson also received a raise as a result of the transfer. Wilson was "overjoyed" and "really appreciated" the transfer.

After the transfer, Tish Jones, a female co-worker,"would come to

the door, shut the door behind her and ask [Wilson] what [she] was

doing" and why she would not talk to Wright or Jones. Jones would

also "get closer and closer to" Wilson until Wilson "would get up,

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open the door and leave." Wright would do the same thing sometimes

and lean over Wilson. Burch told Jones and Wright to leave Wilson

alone. Wright then only entered Wilson's office once more for a business purpose. When Jones continued to bother Wilson, Burch

instructed her to leave Wilson alone.

At some point Burch told Wilson that she was too slow and needed

to pick up the pace of her work. Wilson admits that she was not keeping up with her work. Wilson resigned from her position by giving

two weeks notice. The first week of her notice she spent on vacation.

When she returned for her second and final week, Wilson took a sick

day, but ran into another employee of the Defendant when she was

out shopping. Wilson was fired, but was paid for the second week.

II.

We review the district court's award of summary judgment de

novo. Higgins v. E.I. Du Pont de Nemours & Co. , 863 F.2d 1162,

1167 (4th Cir. 1988). Summary judgment is appropriate when the

record taken as a whole could not lead a rational trier of fact to find

for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986). In ruling on a motion for summary judgment, we

must assess the evidence in the light most favorable to the nonmoving party. Charbonnages de France v. Smith , 597 F.2d 406, 414

(4th Cir. 1979). Although summary judgment disposition should be

used sparingly in employment discrimination cases, it is appropriate

where there is no genuine dispute of material fact. Ballinger v. North

Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir.),

cert. denied, 484 U.S. 897 (1987).

A. Sexual Harassment

To prove a hostile work environment claim under Title VII, a

plaintiff must show that the conduct in question was unwelcome, that

the harassment was based on sex, and that the harassment was sufficiently severe or pervasive to create an abusive working environment,

and that some basis exists for imputing liability to the employer.

Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989); Swentek

v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987). For sexual harassment to be actionable, it must be sufficiently severe or pervasive to

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alter the conditions of employment and create an abusive working

environment. Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67

(1986).

We find that the district court properly concluded that, with the

possible exception of the rubber band incident (in which Wilson participated), the conduct complained of was unwelcome. When Wright

put his hand on Wilson's hip, she told him to keep his hands off her.

When Wilson was shown a cartoon or when Wright hiked his pants,

Wilson turned away. Finally, the clipboard incident caused Wilson

physical pain. Thus, the district court correctly found that Wilson had

demonstrated that the conduct she complained of was unwelcome.

The district court next concluded that, accepting as true Wilson's

version of events, the alleged conduct could reasonably be found to

have been based on sex. Specifically, the court found that the handon-hip, hiked pants, and cartoon incidents had sexual overtones. Further, the district court found that the "older women," rubber band, and

clipboard incidents, when viewed in context with the other incidents,

could reasonably be seen as based on sex. Accordingly, the district

court properly found that Wilson met the second element by showing

that the alleged behavior was based on sex.

The district court then concluded that the alleged conduct could

reasonably be found to be severe or pervasive. The court reasoned

that the alleged conduct was more than an isolated incident (making

it possibly pervasive) and involved physical contact (making it possibly severe). Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991);

Paroline v. Unisys Corp., 879 F.2d at 105. Thus, the court found that

the alleged conduct was sufficiently severe or pervasive to be actionable; accordingly, Wilson met the third element of sexual harassment.

As to the fourth factor, the district court correctly found that no

basis existed for holding the Bank liable for any harassing behavior

engaged in by its employees. An employer is liable for an employee's

sexual harassment of another worker if the employer had actual or

constructive knowledge of the existence of a sexually hostile working

environment and took no prompt and adequate remedial action.

Paroline, 879 F.2d at 106. Wilson's testimony reveals that she never

informed Bank managers about the hiked pants, cartoon, or older

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women incidents. Thus, the Bank had no actual knowledge of any

hostile work environment which may have arisen from these incidents. Moreover, these incidents were not so pervasive or obvious as

to give the Bank constructive knowledge of the alleged harassment,

and the district court correctly so held.

Wilson did complain to management about the hand-on-hip, rubber

band, and clipboard incidents; thus, the Bank had actual knowledge

of any hostile work environment that may have arisen out of those

incidents. The record reveals, however, and the district court correctly

noted, that when the Bank learned of these incidents, it did not "acquiesce in a practice of sexual harassment." Katz v. Dole, 709 F.2d

251, 254 (4th Cir. 1983). Rather, the Bank took prompt remedial

action that was reasonably calculated to end the harassment. Katz, 709

F.2d at 256. Wilson's testimony reveals that within four days of her

complaint to Burch about the hand-on-hip and rubber band incidents,

Burch convened a meeting of the department and distributed a memo

regarding the need for employees to act in a professional manner. Following that meeting, there were no more such incidents. Thus, the district court properly found that no reasonable fact finder could find that

the Bank did not take prompt remedial action.

As to the clipboard incident, Wilson waited a week to report the

incident. When she did report it, the incident was referred to the Personnel department. Burch counseled Wright that he should never

touch or hit another employee, and warned Wright that his behavior

could lead to termination. Further, the Bank transferred Wilson to

another department with a raise to separate her from her alleged

harasser. Wilson welcomed the transfer. When Wright continued to

bother Wilson in a non-sexual manner in her new work area, he was

warned to stay away from her and leave her alone. Wright never bothered Wilson again.

Based on the above prompt remedial action taken by the Bank in

response to Wilson's complaints, we find that the district court properly found that Wilson failed to establish that the Bank is liable for

any hostile work environment which may have been created by the

actions of a co-worker. Wilson simply failed to offer evidence that the

Bank acquiesced in a practice of sexual harassment. Accordingly, the

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district court properly granted summary judgment to the Bank on Wilson's sexual harassment claim.

B. Retaliation

An employer may not discriminate against an employee in retaliation for that employee's opposition to, or complaint about, an unlawful employment practice. 42 U.S.C. § 2000e-3. Wilson alleged that

the Bank retaliated against her in violation of that provision because

the Bank's employees responded to her complaints of sexual harassment in a demeaning, disrespectful, and emotionally destructive manner. Wilson alleged that the Bank purposely responded in this manner

in retaliation for Wilson's complaints. Further, Wilson alleged the

Bank ratified the hostile work environment and failed to protect her

from further harassment, which caused her to resign.

To prevail on a claim of retaliation, Wilson must show that she

engaged in protected activity, that the employer took adverse employment action against her, and that a causal connection existed between

the protected activity and the adverse action. Ross v. Communications

Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). The district court

correctly found that Wilson engaged in protected activity by complaining to management about Wright's actions. However, the Bank

did not take adverse employment action against Wilson. Wilson

asserted that the Bank's alleged failure to protect her from retaliatory

teasing by Wright satisfies the adverse employment action element of

her retaliation claim. However, the record demonstrates that the Bank

took prompt remedial action reasonably calculated to end the alleged

retaliatory harassment by Wright and Jones. Thus, Wilson cannot

establish the second element of her retaliation claim.

Moreover, the district court correctly noted that Wilson complained

only of retaliation by her co-workers. Wilson did not allege that management took any direct retaliatory action against her, such as her

transfer or discharge. In any event, the district court properly found

that the Bank offered ample evidence showing that Wilson's transfer

was not retaliatory, but was welcomed by Wilson and accompanied

by a pay raise. Finally, the undisputed evidence showed that Wilson

was discharged during her last week for good cause-- she was seen

shopping on a day when she had called in sick to work. Thus, the dis-

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trict court properly granted summary judgment to the Bank on this

claim.

C. Intentional Infliction of Emotional Distress

Wilson's complaint included a state law claim for intentional

infliction of emotional distress. To prevail on such a claim, Wilson

must show that the Bank engaged in extreme and outrageous conduct,

that the conduct was intended to cause severe emotional distress, and

that the conduct in fact caused severe emotional distress. Waddle v.

Sparks, 414 S.E.2d 22 (N.C. 1992). Rarely will conduct in the

employment context rise to the level of outrageousness necessary to

provide a basis for recovery for the tort of intentional infliction of

emotional distress. Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d

Cir. 1988), cert. denied, 498 U.S. 811 (1990).

Wilson's complaint merely asserts that the Bank's response to her

complaints of sexual harassment was performed "intentionally and

with reckless indifference to the consequences to the Plaintiff." Wilson further alleged that "the conduct alleged did in fact cause severe

emotional distress to the Plaintiff." However, Wilson failed to offer

any evidence of a severe or disabling emotional or mental condition,

as required to prevail on such a claim. See Waddle v. Sparks, 414

S.E.2d at 27 (defining "severe emotional distress" as including neurosis, psychosis, chronic depression, phobia, or any other type of severe

and disabling emotional or mental condition which may be generally

recognized and diagnosed by professionals trained to do so). In fact,

the medical doctors who treated Wilson both concluded that Wilson

has no permanent disability, either physical or mental, and that she

suffered from "tremendous symptom magnification and fixation."

Thus, the district court properly granted summary judgment to the

Bank on this claim.

For the reasons set forth above, we affirm the district court's order

granting summary judgment to the Bank. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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