Revised May 20, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 01-30287

__________________________

SHIRLEY A. RAMSEY,

Plaintiff-Appellant,

versus

WILLIAM J. HENDERSON,

POSTMASTER GENERAL

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Middle District of Louisiana

___________________________________________________

March 29, 2002

Before POLITZ, STEWART, and CLEMENT, Circuit Judges.

CLEMENT, Circuit Judge:

Shirley Ramsey ("Ramsey") appeals an adverse summary judgment

in her claims against her employer, the United States Postal

Service ("USPS"), in which she asserts claims under Title VII of

the Civil Rights Act for race discrimination and harassment. We

affirm the district court's determination that summary judgment was

appropriate.

I. Facts and Proceedings

Ramsey has been employed by the USPS since 1981. She

works at the General Mail Facility on Blue Bonnet Road in Baton1 Ramsey states that she is of Spanish, Chinese, American

Indian, and Irish origin.

2 Rouge, Louisiana. She claims that she has been harassed roughly

since the conception of her employment at the USPS. The source of

the harassment is Ramsey’s relationship with her African American

co-employees. Ramsey, a woman of white appearance but of multiple

ethnicities 1

, has suffe red harassment at the hands of her African

American co-employees. The harassment increased after Ramsey began

dating an African American male. When Ramsey became an expedited

mail clerk in 1994 and began working under Lucile Porter, Porter

tr eated her more harshly than Ramsey’s African American

counterparts. Relations between Ramsey and Porter were amicable

for the first six months of her emp loyment. Shortly after this,

their relationship deteriorated. Porter’s treatment of Ramsey was

erratic. For weeks at a time, Porter would be kind and then turn

hateful. Ramsey felt belittled and humiliated by Porter’s yelling

and sharp looks. Porter called her a liar and a disloyal employee

in front of co-workers and customers.

On May 8, 1998, Ramsey ma de a request for pre-complaint

counseling, as required by the Federal Re gulations, based on

Porter’s harassment. The paperwork was sent to Ramsey for her to

fill out her complaint against Porter; however, Ramsey never

submitted the paperwork. She claims that she hoped that the

situation could be resolved without resorting to a formal3

complaint. However, the situation was never resolved.

On December 16, 1998, Ramsey had an altercation with a coworker, Mr. Marione aux. The altercation stemmed from a previous

order by Porter that Ramsey not get her mail but go straight to

her desk when she arrived at work. On December 16, Marioneaux

yelled at Ramsey for refusing to pick up her mail. He slapped a

stack of papers on Porter’s desk during the quarrel. At this

point, Porter entered the scene and told Marioneaux to stop yelling

at Ramsey. The altercation visibly upset Ramsey, making her cry

and shake. Although Porter ended the altercation between

Marioneaux and Ramsey, Ramsey claims that Porter enjoyed it and

smiled while Marioneaux was yelling at Ramsey. Ramsey subsequently

requested to meet with a union steward to which Porter allegedly

r eplied “this really got to you didn’t it, I can see it in your

eyes. You can call Linda Hayes (the union steward), but I don’t

think she’s in.” On December 17, 1998, Ramsey had difficulty

concentrating at work and filled out a request form for a leave of

absence. Porter refused to sign and asked Ramsey to talk to her

about the incident of the previous day. Ramsey indicated that she

did not want to talk about it but rather simply wanted to go home.

Ramsey left work alleging she was having a nervous breakdown and

never returned to the mail facility. She requested informal

counseling with the EEO office on January 29, 1999 and fi led a2 The agency identified the scope of the complaint as a claim

of “continuing harassment and a hostile work environment

culminating in your mail not being brought to your desk on

December 16, 1998, your supervisor refusing to sign your leave

slip on December 17, 1998, and your supervisor allowing a coworker to yell at you during a meeting on December 17, 1998.”

While Ramsey objected, requesting additional prior conduct be

included in the claim, the agency refused and Ramsey did not

appeal the decision to the EEOC.

3 The district court dismissed the retaliation claim for

failure to exhaust administrative remedies. This issue was not

raised on appeal.

4 formal complaint of discrimination on April 15, 1999. 2

Ramsey filed her Complaint on December 10, 1999 alleging race

discrimination and retaliation in violation of Title VII. The USPS

filed a motion to dismiss on May 31, 2000 alleging lack of

jurisdiction as to the retaliation claim as well as failure to

state a prima facie case of a hostile work environment. The

district court converted the motion to dismiss into a motion for

summary judgment and ordered additional briefing. On December 13,

2000, the district court dismissed Ramsey’s retaliation claim for

lack of subject matter juri sdiction 3 and dismissed the

discrimination claim for failure to state a prima fa cie case.

Ramsey filed a motion to amend the judgment which was denied by the

district court. Ramsey timely filed a notice of appeal as to the

hostile work environment claim.

II. Discussion

A. Standard of Review

We review a district cour t's decision to grant summary4 Ramsey requested the paperwork for informal counseling on

at least one occasion in 1998 but never filed the request.

5 judgment de novo

. W alker v. Thompson

, 214 F.3d 615, 624 (5th Cir.

2000). Summary judgment is appropriate only when there is no

genuine issue as to any material fact and the movant is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(c). In reviewing a

motion for summary judgment, the evidence is viewed in a light most

favorable to the non-moving party, drawing all reasonable

inferences in its favor. S t. Paul Mercury Ins. Co. v. Williamson

,

224 F.3d 425, 440 n. 8 (5th Cir. 2000) (citing Lowrey v. Texas A &

M University System , 117 F.3d 242, 247 (5th Cir. 1997).

B. Analysis

The district court denied Ramsey’s hostile work environment

claim based on its determination that all of her claims were time

barred except for those occurring on December 16-17, 1998. The

district court found th at her claim could not be based on a

continuing violation th eory because she was aware of the alleged

harassmen t yet chose to withstand it. 4 As a result, the court

concluded that all but one incident was time barred for occurring

“outside the forty-five day period from the date of her initial

contact with the agency’s EEO office.” After a motion for a new

trial was filed by Ramsey, the court again dismissed her claim for

failure to allege conduct that was “sufficien tly severe or

pervasive to be actionable” under Harris v. Forklift Systems, Inc.6

510 U.S. 17 (1993).

Ramsey alleges it was error for the district court to dismiss

her claim under a continuing violation theory as her theory was

based not on a continuing violation but on a “severity” theory.

After reviewing the record, it is not clear from Ramsey’s documents

on what theory her claim was based. What is clear is that the

actionable period included only one incident. Ramsey argues that

the time barred events cited in her Complaint and subsequent motion

were relevant background information to determine the severity of

the harassing conduct. We agree. The question remains whether,

after reviewing the previous discriminatory conduct, Ramsey has

made a prima facie case of harassment based on a hostile work

environment. We conclude that she has not.

A plaintiff may establish a Title VII violation based on race

discriminat ion creating a hostile work environment. In order to

establish a hostile working environment claim, Ramsey must prove:

(1) she belongs to a protected group; (2) she was subjected to

unwelcome harassment; (3) the harassment complained of was based on

race; (4) the harassment complained of affected a term, condition,

or privilege of employment; (5) the employer knew or should have

known of the harassment in question and failed to take prompt

remedial action. C elestine v. Petroleos de Venezuella SA

, 266 F.3d

343, 353(5th Cir. 2001); Jones v. Flagship Int'l

, 793 F.2d 714,

719-7 20 (5th Cir. 1986). For harassment on the basis of race to

affect a term, condition, or privilege of employment, as required7

to support a hostile work environment claim under Title VII, it

must be “‘sufficiently severe or pervasive to alter the conditions

of the vict im’s employment and create an abusive working

environment.’” Harris , 510 U.S. at 21, q uoting

, Meritor Savings

Bank, FSB v. Vinson , 477 U.S. 57, 65 (1986).

In determining whether a workplace constitutes a hostile work

environment, courts must consider the following circumstances: "the

frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utt erance; and whether it unreasonably interferes with an

employee's work performance." W alker v. Thompson

, 214 F.3d 615,625

(5 th Cir. 2000), quoting

, Harris , 510 U.S. at 23.

We agree with the district court that the conduct to which

Ramsey objects does not rise to the level of race discrimination

based on a hostile work environment; however, the district court

should have considered the prior relevant conduct alleged by Ramsey

in making its determination. As the Supreme Court has recently

stated, “workplace co nduct is not measured in isolation.” C lark

County School District v. Breeden , 532 U.S. 268, 270 (2001). For

a hostile working environment to be deeme d sufficiently hostile,

all of the circumstances must be taken into c onsideration.

Discriminatory incidents outside of the filing period may be

relevant background information to current discriminatory acts.

United Airlines, Inc. v. Evans

, 431 U.S. 553, 558 (1977); See also5 29 C.F.R. §1614.105 provides: Aggrieved persons who believe

they have been discriminated against on the basis of race, color,

religion, sex, national origin, age or handicap must consult a

Counselor prior to filing a complaint in order to try to

informally resolve the matter. An aggrieved person must initiate

contact with a Counselor within 45 days of the date of the matter

alleged to be discriminatory.

8 Rutherford v. Harris County

, 197 F.3d 173 (5 th Cir. 19 99); H ebert

v. Monsanto Co.

, 682 F.2d 1111 (5 t h Cir. 1982); Anderson v. Reno

,

190 F.3d 930, 936 ( 9 t h Cir. 1999). Viewing the facts in a light

most favorable to Ramsey, and, after considering the prior alleged

acts of harassment, we conclude that Ramsey failed to state a prima

facie case of a hostile working environment.

As an initial matter, we distinguish between the harassing

conduct occurring within the actionable period and that which can

only be viewed as relevant background conduct. As a federal

employee, the Federal Regulations require Ramsey to follow certain

procedures before filing a Title VII suit. The first step in

filing an EEOC complaint is that an aggrieved employee must contact

an agency EEO counselor within 45 days of the alleged

discriminatory conduct requesting informal counseling. 5 Ramsey

filed her informal counseling reque st on January 26, 1999.

Accordingly, the actiona ble period was from December 12 through

December 17, 1998. The only actionable incidents which occurred

during this time were on December 16 and again on December 17, 1998

when Ramsey ultimately left the USPS. All other alleged conduct by9

Ramsey ca n only be considered as relevant background conduct to

determine whether the harassment was sufficiently severe so as to

cause an abusive work environment.

The December 16, 1998 incident arose between Ramsey and her

co-worker Mr. Marioneaux. Prior to this incident there were no

allegations by Ramsey that Marioneaux harassed her because of her

race nor is there any allegation that the December 16, 1998

incident was racially motivated. The conduct to which Ramsey

complains invol ves Marioneaux refusing to bring her mail to her.

In doing so, he slapped his hands down on Porter’s desk and yelled

at Ramsey. During the course of this exchange, Porter reprimanded

Marioneaux and ordered him to stop yelling at Ramsey. However,

prior to ending the tirade, Porter smiled which Ramsey perceived as

her enjoyment of the abuse projec ted on her. Ramsey was visibly

shaken by the incident and requested that Porter sign a leave form

for her the next day. Porter did not sign the form, asking Ramsey

to s tay so that they could discuss the incident of the previous

day. Ramsey left the office and never returned to work. While

workplace conduct cannot be measured in isolation, we conclude that

this incident does not amount to discriminatory employment.

The record is rife with vague assertions of racial animus

dating back to Ramsey’s initial employment at the USPS. However,

other t han assertions that her supervisor, Lucile Porter,

discriminated against her for dating an African American male,

there are no specific allegations of racial discrimination against10

any other employees. Ramsey alleges that she “suffered ongoing

racial harassment from black females,” bu t points to no concrete

examples. Ramsey explains that the harassment increased when she

began dating an African American and subsequently had a child with

him but again gives no concrete examples beyond mere co nclusory

assertions. While claiming that the racial harassment became

extreme after b eginning work under Porter, the only example she

cites is reference to a remark where Porter made a derogatory

comment about Ramsey. However, this statement was not heard by

Ramsey nor does Ramsey establish to whom the remark was made. This

Court has cautioned that “conclusory allegations, speculation, and

unsubstantiated assertions are inadequate to satisfy” the

nonmovant’s burden in a motion for summary judgment. Douglass v.

United Services Auto. Ass'n , 79 F.3d 1415, 1429 (5th Cir. 1996).

While the record clearly indicates that Porter did not approve

of Ramsey’s relationships with Af r ican American men, Ramsey’s

allegations fall far short of setting forth the requisite elements

of a prima facie claim of a hostile working environment. The prior

incidents of racial harassment falling outside of the act ionable

period are not so s evere or pervasive as to cause an abusive

working environment when taken in conjunction with the i ncident

occurring within the actionable period. The incident between

Ramsey and Marioneaux occurring on December 16, 1998 in no way

involved racial harassment. Additionally, Porter’s intervention11

in the scene shows that immediate remedial action was taken. The

prior conduct of the USPS may have includ ed discriminatory acts;

however, this conduct is not actionable under Title VII. Such

prior conduc t “may constitute relevant background evidence in a

proceeding in which the status of a current practice is at issue,

but separately considered, it is me rely an unfortunate event in

history which has no present legal consequences.” E vans

, 431 U.S.

at 558. The incident occurring within the actionable time period

in no way involves racial discriminat ion, and her sporadic

allegations of race discrimination cannot be the basis of a Title

VII claim.

III. Conclusion

While it was error for the district court not to consider acts

of discrimination falling outside of the actionable period as

relevant background information, its determination that Ramsey

failed to establish a prima facie case of a hostile work

environment in violation of Title VII was correct.

AFFIRMED.12