* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No. 96-40592

(Summary Calender)

______________________________

YQUADEA DOVE AND

THERESA ROGERS,

Plaintiffs-Appellants,

versus

WESTWARD TRAILS MANOR, INC.

D/B/A WESTWARD TRAILS MANOR

Defendant-Appellee.

____________________________________________

Appeal From the United States District Court

for the Eastern District of Texas

(No. 95-111)

____________________________________________

February 19, 1997

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM: *

This is an appeal from the district court’s grant of summary

judgment in favor of Defenda nt-Appellee Westward Trails Manor,

Inc., d/b/a Westward Trails Manor (“Westward”), dismissing1 42 U.S.C. § 2000e et seq

.

2

Plaintiffs-Appellants Yquadea Dove’s and Teresa Rogers’ claims of

sexual harassment and retaliation under Title VII of the Civil

Rights Act of 1964 1 and race discrimination under both Title VII

and 42 U.S.C. § 1981. For the reasons that follow, the district

court’s grant of summary judgment is affirmed.

I

FACTS AND PROCEEDINGS

Westward operates a nursing home in Nacogdoches County, Texas.

Former plaintiff Camellia Ann Kelly worked as a ho usekeeper for

Westward. Plaintiffs Dove and Rogers worked as Certified Nurse’s

Aids for Westward. In March 1994, Westward also hired Vincent

Wilburn to work as a Certified Nurse’s Aid. He was not a

supervisor of any of the plaintiffs.

On June 18, 1994, Wilburn approached Kelley from behind while

she was cleaning one of the bathrooms in the nursing home, exposed

his genitals to her, and made lewd remarks. Kelly pushed Wilburn

out of the way and left the bathroom.

The next day on which Kelly was scheduled to work while

management was pr esent was June 22, 1994. On that date —— her

first opportunity

—— she reported the Wilb urn incident to her

immediate supervisor, Elizabeth Duke, who advised Kelly to report

the incide n t to Wilburn’s supervisor, Carol Molandes. Neither

supervisor documented Kelly’s report, but Molandes told Kelly that2 Plaintiffs claim there is a factual dispute as to whether

this first warning was in fact given. Wilburn testified in

deposition that Westward management talked with him about Kelly’s

complaint, but the actual warning notice that Westward introduced

as evidence of the warning does not indicate recei pt or

acknowledgment by Wilburn.

3 she would “take care of it.”

The next day (June 23rd), after admitting his role in the

bathroom incident, Wilburn was given a written “first warning.” 2

That same day, however, Wilburn strolled down a hallway in the

presence of Kelly, holding a banana at his crotch, waving it like

a phallus, and laughing. Kelly promptly reported this incident to

Westward Admini strator Joyce Lewis. At the meeting with Lewis,

Westward’s Direct or of Nursing, Vickie Randall, called Kelly a

“trouble maker” and told Kelly she would either have to work with

Wilburn or leave. Instead of taking any additional disciplinary

action against Wilburn, Lewis told Kelly that the most they could

do was transfer her to another assignment. Believing that Wilburn

would be allowed to continue harassing her and that her complaint

was not being taken seriously, Kelly resigned that day.

The next day, in the wake of Kelly’ s resignation, Westward

superviso r Molandes asked plaintiffs Dove and Rogers whether

Wilburn had ever harassed them in a sexual manner. Both plaintiffs

separately reported th at, indeed, Wilburn had made sexually

suggestive remarks to them. They also reported that he had

performed lewd “humping” gestures with elderly female patients who

he was responsible for lifting in the showers. Both plaintiffs3 There appears to be a factual dispute as to whether Wilburn

was issued a second warning at this meeting or was merely informed

of the additional complaints. It is also possible that this

meeting was actually the meeting in which Wilburn received his

first warning. The factual record is, to say the least, somewhat

confusing regarding the precise chronology of warnings and meetings

betwe en Wilburn and Westward management. This apparent dispute,

h owever, does not rise to the level of materiality even if it is

genuine.

4 acknowledge never having complained about Wilburn’s behavior prior

to the questioning initiated by Molandes on June 24, 1994.

Having ferreted out these additional reports of inappropriate

behavior from Dove and Rogers, Westward administrators Randall and

Molandes met with Wilburn and informed him of Dove’s and Rogers’

complaints. These administrators apparently did not immediately

take any further remedial action. 3

Later that same day (June 24th), Wilburn waited for Rogers and

Dove to leave work (Dove was giving Ro gers a ride home), chased

Dove’s vehicle with his, and reportedly tried to run Dove’s vehicle

off the road. Dove promptly reported this incident to Westward

Administrator Lewis who responded that, as it had occurred outside

of work, there was nothing she could do about it.

Four days later, on June 28, 1994, Wilburn told other Westward

employees that he wanted to burn down Dove’s and Rogers’ houses and

shoot both women and the ir children as they came running out of

their homes. Rogers reported these threats to Molandes at 11:45

that morning. After questioning (1) Wilburn, who denied making the

threats, and (2) two other employees, both of whom confirmed that5

Wilburn had made the threats, Molandes called Wilburn into his

office and effectively fired him at 12:15 that afternoon

—— thirty

minutes after first hearing of the threats. Molandes immediately

informed Dove and Rogers that Wilburn had been fired or “was gone.”

Nevertheless, two days later

—— June 30, 1994

—— both Dove and

Rogers quit their jobs at Westward. In explaining their

resignations, both plaintiffs assert that Molandes refused to talk

with them and treated them coolly at a staff meeting the next day;

they also state that other employees began calling them “trouble

makers,” the term first used by Ms. Randall in reference to Kelly.

In addition, Dove contends that her work assignment was temporarily

changed from working a hall to working only in the showers.

After filing timely discrimina tion charges with the Equal

Employment Opportunity Commission and receiving their right-to-sue

letters, plaintiffs Kelley, Dove, and Rogers filed the instant suit

against Westward in April 1995, asserting Title VII claims for

sexual harass m ent and retaliation, and claims for race

discrimination pursuant to Title VII and 42 U.S.C. § 1981. In late

January 1996, Kelly settled by accepting an offer of judgment from

Westward in the amount of $14,000. Soon thereafter Westward filed

a motion for summary judgment, asserting that (1) it was not liable

for Dove’s and Rogers’ Title VII sexual harassment and race

discrimination claims becau se Westward had taken prompt remedial

action, and (2) their race discrimination claims were precluded by

Westward’s remedial action, and any such claims arising under4 491 U.S. 164, 178, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1 9 89).

As plaintiffs note and defendant acknowledges, however, the Civil

Rights Act of 1991 amended section 1981 to overrule Patterson

. S ee

42 U.S.C. § 1981(b); Partee v. Metro. School Dist. of Washington

Tp ., 954 F.2d 454, 457 (7th Cir. 1992).

5 LaPierre v. Benson Nissan, Inc.

, 86 F.3d 444, 447 (5th Cir.

1996).

6 section 1981 were specifically precluded as a matter of law by

Patterson v. McLean Credit Union

. 4

In May 1996, the district court not only granted Westward’s

motion for summary judgment on Dove’s and Rogers’ sexual harassment

and race discrimination claims but also dis missed s ua sponte

plaintiffs’ retaliation claims, alb eit the court did so without

providing any further analysis. Dove and Rogers timely filed their

N otice of Appeal and now specifically challenge the district

court’s grant of Westward’s summary ju dgment motion, dismissing

their sexual harassment and race discrimination claims, as well as

the court’s sua sponte grant of summary judgment dismissing their

retaliation claims.

II

ANALYSIS

A. Standard of Review

We re view a grant of summary judgment d e novo and apply the

same standards as used in the district court. 5 Summary judgment is

therefore appropriate “if t he pleadings, depositions, answers to

interrogatories, and admissions on file, together with the6 Fed. R. Civ. P. 56(c).

7 Fed. R. Civ. P. 56(c); Celotex v. Cat rett , 477 U.S. 317,

326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

8 Nowlin v. Resolution Trust Corp.

, 33 F.3d 498, 504 (5th Cir.

1994); L eatherman v. Tarrant County Narcotics Intelligence a n d

Coordination Unit , 28 F.3d 1388, 1398 (5th Cir. 1994).

9 Nowlin

, 33 F.3d at 504 (quoting Leatherman

, 28 F.3d at 1398)

(emphasis in original).

7 affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” 6

A trial court may sua sponte grant a motion for summary

judgment as to any claim as long as the court provides the losing

party with ten days notice to come forward with all of his evidence

on that claim. 7 When a district court grants a s ua sponte summary

judgment without having provided the proper notice, however, the

summary judgment will only be affirmed if the lack of notice is

found to constitute harmless error. 8 Summary judgment will be

considered “harmless” in such a circumstance “ if the nonmovant has

no additional evidence or if all of the nonmovant’s additional

evidence is reviewed by the appellate court and none of the

evidence presents a genuine issue of material fact.” 9 Put another

way, the party seeking to avoid a sua sponte summary judgment “must

present specific evidence that creates a genuine issue of material

fact , or at least identify how additional discovery would yield10 Id.

11 Nash v. Electrospace System, Inc.

, 9 F.3d 401, 403 (5th Cir.

1993), citing Jones v. Flagship International

, 793 F.2d 714, 719-20

(5th Cir. 1986), cert. denied

, 479 U.S. 1065, 107 S.C t. 952, 93

L.Ed.2d 1001 (1987); see also Hirras v. Nat. R.R. Passenger Corp.

, 95 F.3d 396, 398 (5th Cir. 1996).

8 such an issue.” 10

In the instant case, plaintiffs Dove and Rogers have proffered

the additional deposition evidence that they would have introduced

h ad they received notice that the district court was consider ing

summary judgment on their retaliation claims as well as their

sexual harassment and race discrimination claims. Accordingly, on

appeal we have considered this additional evidence in reviewing the

district court’s grant of summary judgement on plaintiffs’

retaliation claim.

B. Sexual Harassment Claims

To prevail on a claim of sexual harassment in the workplace,

a plaintiff must demonstrate each of the following elements:

(1) the employee belongs to a protected group;

(2) the employee was subject to unwelcome sexual harassment;

(3) the harassment was based upon sex;

(4) the harassment was so pervasive as to alter the

employee’s conditions of employment and create an abusive

working environment; and

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

and failed to take prompt remedial action. 11

In this case Westward argued, and the district court agreed, that12 Hirras

, 95 F.3d at 399-400 (quoting Waltman v. International

Paper Co. , 875 F.2d 468, 479 (5th Cir. 1989).

13 Garcia v. Elf Atochem North America

, 28 F.3d 446, 451 (5th

Cir. 1994) (citng Jones, 793 F.2d at 719-20).

9 Westward was entitled to summary judgment on plaintiffs’ sexual

harassment claims because Westward took prompt remedial action when

it learned of Wilburn’s inapprop riate behavior towards Dove and

Rogers. As we have previously observed, the determination whether

an employer’s remedial response to discrimi natory conduct is

sufficiently prom pt and appropriately calibrated will “depend on

the particular facts of the case——the severity and persistence of

t he harassment and the effectiveness of any initial remedial

steps.” 12 In general, a remedial action sufficient to avoid

liability is one that is “‘reason ably calculated’ to end the

harassment.” 13 Here, the district court focussed on two obvious

facts in evaluating Westward’s remedial actions: (1) Neither Dove

nor Rogers reported any sexual harassment by Wilburn be fore June

24, 1994, when Westward took the initiative and inquired; and

(2) Wilburn was fired on June 28, 1994, albeit for his intervening

threat s of violence. The court then held that Westward’s

termination of Wilburn’s employment within four days of plaintiffs’

first complaint established, as a matter of law, that Westward took

adequate remedial action with sufficient dispa t ch to preclude

plaintiffs’ recovery.

Plaintiff s now argue that this conclusion is flawed for14 See Meritor Savings B ank, fsb v. Vinson , 477 U.S. 57, 73,

106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986) (indicating in dicta

that employer’s anti-discrimination policies should be “calculated

to encourage victims of harassment to come forward”).

10 several reasons. First, they note that Wilburn’s sexual harassment

was severe, persistent, and openly practiced. Second, they observe

that Wilburn’s sexual harassment was first explicitly reported by

Kelly on June 22nd. Given these facts, they argue that Westward’s

first written warning to Wilburn on June 23 rd (after Kelly’s

report) was too lenient and, further, that Westward’s apparent

failure to take any additional remedial action immediately

following Dove’s and Rogers’ reports confirms the inadequa cy of

Westward’s response. Finally, they argue that Westward’s remedial

actions failed to encourage victims of harassment to come forward, 14

but instead, by confronting Wilburn with new complaints of sexual

harassment and identifying the plain t iffs as the complainers,

exposed plaintiffs to Wilburn’s retaliatory actions and thereby

accomplished the opposite result.

As Westward notes in response, it is indisputable that from

the time Westward gave Wilburn hi s first warning and received

plaintiffs’ complaints until the time he was fired —— a period of

just four or five days

—— Wilburn never again s ubjected Dove or

Rogers to any sexual harassment. To be sure, he appears to have

directed tortious or even criminal conduct towards the plaintiffs

“off ca mpus”; but his harassing behavior of an explicitly s exual

nature never recurred. Consequently, we conclude that Westward’s15 Garcia , 28 F.3d 451.

16 See Dornhecker v. Malibu Grand Prix Corp.

, 828 F.2d 307, 309

(5th Cir. 1987) (employer’s assurance, offered less than twelve

hours after initial complaint was made, that complaining employee

would not have to work with harassing co-employee aft er current

business trip ended constituted prompt remedial action sufficient

to preclude plaintiff’s recovery)

11 remedial actions —— issuing a written warning; commencement of an

investigation; and the firing of Wilburn within minutes after

confirming his threats to injure the plaintiffs

—— were, in the

circumstances of this case and seen in combination, not only

“ ‘ reasonably calculated’ to end the harassment,” 15 but were

effective in ending it finally and promptly. 16 Indeed, the entire

episode

—— from Wilburn’s initial harassment of Kelly until he was

fired

—— lasted but ten days. As a result, plaintiffs cannot

e stablish a genuine issue of material fact as to the fifth an d

final Nash element of their sexual harassment claim, and therefore

summary judgment on this claim was proper.

C. Retaliation Claims

The district court granted summary judgment on plaintiffs’

retaliation claim without providing us with the benefit of its

analysis except for stating conclusionarily that “the s u mmary

judgment evidence is totally lacking.” Although we agree with that

conclusion, we shall briefly explain our reasoning based upon all

of the summary judgment evidence, including the additional evidence

proffered through the plaintiffs’ Motion to Modify the Record17 The additional evidence, which was not included in

plaintiffs’ response to Westward’s motion for summary judgment but

which we have considered on appeal, consists of excerpts of two

depositions. In one, Joyce Lewis acknowledged that the purported

vehicular assault was reported to her but that she told the

plaintiffs that she could take no action as the incident had

occurred outside the scope of their and Wilburn’s employment; and

in the other, plaintiff Dove said that she had resig ned not just

because of Wilburn’s retaliatory actions but also because her coworkers and supervisors sneered at her and would not speak to her,

and because she was temporarily reassigned to work only in the

showers.

18 Nowlin , 33 F.3d at 507.

12 pursuant to Rule 10 of the Federal Rules of Appellate Procedure. 17

To state an actionable claim for retaliation under Title VII,

a plaintiff must establish that (1) he engaged in a statutorily

protected activity, (2) he suffered an adverse employment action

following the protected activity, and (3) a causal connection

existed between t he protected activity and the adverse action. 1 8

Dove and Rogers plausibly contend that by reporting Wilburn’s

o ffensive sexual conduct on June 24 they opposed an unlawful

employment practice and thus satisfied the protected activity

requirement of their retaliation claim.

To establish the second element of their retali ation claim,

however, plaintiffs can only point to Wilburn’s actions

—— his offpremises, after hours , attempted vehicular assault and his open

threats, communicated to third pa rties, to kill plaintiffs and

their families

—— as ev idence of their having experienced an

adverse employment action. Unfortunately for plaintiffs, Wilburn’s

admittedly reprehensible actions simply cannot be attributed to his13

employer, Westward. To the contrary, Wilburn acted, albeit

tortiously and perhaps even criminally, on his own initiative

—— a

classic “lark” in no way attributable to the scope of his

employment. Of course, the possibility that Wilburn —— merely a

co-worker

—— might have been motivated by a desire to retaliate

against Dove and Rogers for their actions against him personally

does not mean that Westward intended to or in fact did invite this

behavior and thereby subject the plaintiffs to an adverse

employment action. Instead, the evidence shows that Westward did

not fire the plaintiffs, demote them, dock their pay, substantially

change their work assignments, or take or refrain from taking any

other action that could reasonably be characterized as an adverse

employment action. Indeed, all it did was to initiate an

a ppropriate and timely investigation in response to plaintiffs’

allegations and timely confront Wilburn with the fact that two more

co-employees had complained of inappropriate sexually-tinged

behavior. In short, Wilburn took reprehensible personal actions

against the plaintiffs; Westward took no adverse employment action

against them.

As plaintiffs have not shown the existence of a genuine issue

of material fact as to this second element of their retaliation

claims, summary judgment is appropriate on these claims as well.

D. Race Discrimination Claims

Finally, plaintiffs’ allegations of racial discrimination,14

whether founded on Title VII or § 1981, are almost entirely

premised on the same allegations as are their sexual harassment and

retaliation claims. In short, they argue that Westward tolerated

Wilburn’s sexual harassment of them because they are black. As we

have found that there was no actionable sexual harassme nt given

Westward’s prompt remedial action in response to Wilburn’s conduct,

plaintiffs’ claims of racial discrimination simply cannot s tand.

We add, however, that the minor fact that Westward’s management,

albeit comprised entirely of whites, fired Wilburn, a black, after

two employees, the first black and the second white, confirmed his

threats against the plaintiffs, would have been too slender a reed

to support a race discrimination claim even if there had been

actionable sexual haras sment. As Westward noted, it sought

confirmation from its employees i n rapid succession after Rogers

reported Wilburn’s threats, and called in witnesses as soon as they

were mentioned by plaintiffs or others. In other words, not even

a glimmer of racial discrimination can be found in Westward’s swift

response to Dove’s and Rogers’ co mplaints. Accordingly,

plaintiffs’ claims of racia l discrimination, whether founded on

Title VII or § 1981, were properly dismissed on summary judgment.

III

CONCLUSION

For the reasons set forth above, we hold that plaintiffs have

failed to submit evidence demonstrating genuine issues of material15

fact as to their sexual harassment, retaliation, or race

discrimination claims. Accordingly, the district court’s grant of

summary judgment dismissing plaintiffs’ claims in their entirety is

affirmed and their Rule 10(e) motion is denied as moot, given our

consideration of their proffered additional evidence.

Summary Judgment AFFIRMED; Motion DENIED as moot.