1 Nash sued John Sharp, the alleged perpetrator of harassment, under state law. Her claim

against him was dismissed by the court when it dismissed the federal law claim against ESI. 28

U.S.C. § 1367 (Supp. II 1990). United States Court of Appeals,

Fifth Circuit.

No. 93-1450.

Summary Calendar.

Denise NASH, Plaintiff-Appellant,

v.

ELECTROSPACE SYSTEM, INC. and John Sharp, Individually, Defendants-Appellees.

Dec. 17, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS, JONES, and DUHÉ, Circuit Judges.

PER CURIAM:

Summary judgment was granted for the employer in this case in which Ms. Nash, a former

clerical worker for Electrospace System, Inc. (ESI), alleged sexual hara ssment and retaliation for

filing an EEOC claim. 1 We affirm, because Nash's claims of harassment, even if true, did not refute

the efficacy of ESI's procedures for responding to alleged sexual harassment. When a company, once

informed of allegations of sexual harassment, takes prompt remedial action to protect the claimant,

the company may avoid Title VII liability.

Nash did not respond to ESI's motion for summary judgment, which ESI supported by

excerpts from Nash's deposition test i mony and the affidavit of Margaret Schafer, director of the

company's Human Resources Department. Thus, alt hough this court reviews summary judgment

evidence in the light most favorable to the non-movant, there is no controverting evidence set forth

in the record below to buttress Nash's allegations.

Nash began working for an affiliat e of ESI in mid-1989 as a computer data entry operator.

Later, she transferred to ESI and began performing secretarial and research functions. In September

1990, she was transferred to ESI's accounting department where she was assigned to work under thesupervision of tax attorney John Sharp. Despite this first-line supervisory role, Sharp did not control

the terms and conditions of Nash's employment. Rather, such decisions were made by Sharp's boss,

accounting department manager C. Edwin Wilson, in conjunction wit h the Human Relations

Department.

Nash alleged that during the fall of 1990, Sharp subjected her to a barrage of questions about

her personal sex life. She acknowledges that he did not undertake any q uid pro quo harassment, such

as invit ing her into any type of personal relationship as a condition of employment. The record

contains no intimation of offensive touching. Nevertheless, Nash was offended by the intrusive sexual

questions. During the same period of time, she received several sexually suggestive anonymous

phone calls at her home, which she believed came from Sharp. She never pursued this charge against

Sharp either directly

wit h him or with the company, however, and after she obtained an unlisted

telephone number, the calls ceased.

Nash conceded that her performance in the tax accounting department was not up to par. By

January 1991, she received a memorandum from Sharp criti cizing particular errors she had made.

She described this memorandum as " co nst ructive criticism." In the meantime, she had ceased

responding to Sharp's personal questions.

After discussing her allegations against Sharp with a co-worker on Friday, February 22, 1991,

Nash approa ched t he personnel department and was immediately called for an interview by ESI's

Director of Human Resources Margaret Schafer . During the next week, Ms. Schafer's affidavit

attests, she interviewed both John Sharp and Nash's female co-workers to investigate the allegations.

Sharp denied that his conversations with Nash were anything other than voluntary and maintained that

his questions were n o t calculated to be sexually hostile, inappropriate or intimidating. Schafer

instructed Sharp not to converse with Nash during the investigation.

The following Friday, March 1, Schafer transferred Nash provisionally to another department

and within days found her another permanent position as department secretary in the Data Logistics

Department. This transfer had no effect on Nash's pay rate or benefits. In fact, by the following June,

Nash received a performance-based increa se. In her deposition, Nash could not explain why sheregarded this transfer to the Data Logistics Department as "retaliatory". She admitted it was not an

adverse employment decision. Further, after the transfer, Nash made no more complaint s abo ut

sexual h arassment , nor did she work anymore around John Sharp. She quit work that summer to

return to college.

For summary judgment purposes, the court inquires whethe r t here is evidence in the trial

court record that creates a genuine issue of material fact regarding Nash's allegations. S ee Brooks,

Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th

Cir.1987). To establish an actionable claim of sexual harassment in the work place, a plaintiff must

demonstrate:

(1) That she belongs to a protected clas s; (2) t hat she was subject to unwelcome sexual

harassment; (3) that the harassment was based on sex; (4) that the harassment affected a

"term, condition or privilege of employment"; and (5) that the employer either knew or

should have known of the harassment and failed to take prompt remedial action.

See Jones v. Flagship International, 793 F.2d 714, 719-20 (5th Cir.1986), c ert. denied, 479 U.S.

1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). The Supreme Court recently affirmed that sexually

discriminatory verbal intimidation, ridicule and insults may be sufficiently severe or pervasive to alter

the conditions of the victim's employment and create an abusive working environment that violates

Title VII. H

arris v. Forklift Systems, Inc.,

--- U.S.

----, ----, 114 S.Ct. 367, 370-71,

--- L.Ed.2d

----

(1993) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 2405, 91

L.Ed.2d 49 (1986)). The Court further determined that whether an environment is "hostile" or

"abusive" can be "determined only by looking at all the circumstances

... [, such as] 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. at ----, 114 S.Ct. at 371. Following H arris, it appears that Nash's allegations against Sharp could,

if sufficiently severe and pervasive, support a Title VII claim for subjecting Nash to a sexually abusive

work envir o nment . We take some liberty in drawing this conclusion because Nash never filed a

response to ESI's motion for summary judgment, and we assume that Nash might have shown that

Sharp's questions, if frequent and bothersome enoug h, might have interfered with her ability to

perform her work.2 The availability of a formal grievance procedure at ESI should be counted strongly in ESI's

favor here because Nash—per her deposition testimony—knew Sharp had no authority to

terminate her. Harris does not, however, support the proposition that in all such cases, an employer will

be held liable for a violation of Title VII. An employer becomes liable for sexual harassment only if

it knew or should have known of the harassment and failed to take prompt remedial act io n. See

Jones, 793 F.2d at 720. As the offender in H arris was the company president, the issue of respondeat

superior liabilit

y never arose. This case poses a more typical situation, in which the alleged offender,

though in some ways a direct supervisor of Nash's work, was not responsible for the terms and

conditions of her employment, for her work assignment within the company, or for hiring or firing

d ecisio ns. The summary judgment record does not establish that anyone within the company

hierarchy was aware of Nash's complaints against Sharp until she went to the personnel department

on February 22, 1991. The record also co ntains no evidence that Sharp's conduct took place in

public, under the eye of co-workers or supervisors. It thus appears that the company did not know

nor shou ld it have known of Sharp's offensive inquisitiveness about Nash until she complained to

those with authority to address the problem.

For this reason, we focus on Schafer's affidavit of the actions she took when confronted with

Nash's charges. The company is not liable under Title VII unless it failed to take prompt remedial

action. Schafer immediately began an investigation of Sharp and his co-workers. She could not

corroborate Nash's allegations, because Sharp denied engaging in harassment and co-workers had not

experienced offensive behavior by him. Schafer decided to transfer Nash to another department with

no loss of pay or benefits. The invest igat ion and transfer were accomplished within one week of

Nash's first complaints. Surely this decision reflected a prudent response to an unpleasant situation.

The fact of Nash's transfer represents not retaliation, but an act that insulated her from further contact

with Sharp. The record suggests that the transfer was successful, because Nash got along well with

her new boss and soon qualified for a raise. The company also pro duced a written policy against

sexual harassment that had been in e ffect fo r a number of years, and Schafer's affidavit states that

information about the policy was specifically conveyed to all newly hired employees. 2While Harris proclaims that sexually hostile or abusive work environments are no longer to

be toler at ed under Title VII, that fact does not transform Title VII into a strict liability statute for

employers. An employer is liable only if it knew or should have known of the employee's offensive

conduct and did not take steps to repudiate that conduct and eliminat e the hostile environment. S ee

Jones, 793 F.2d at 720. Nash produced no such evidence in this case. The uncontested evidence

demonstrates a model of prompt, sensitive employer handling of these very traumatic cases.

The judgment of the district court is accordingly AFFIRMED.