IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30574

SHELITA TUCKER, 

 Plaintiff - Appellant

v.

UNITED PARCEL SERVICE, INCORPORATED, 

 Defendant – Appellee

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:15-CV-611

Before JOLLY, JONES, and HAYNES, Circuit Judges.

PER CURIAM:*

Shelita Tucker appeals the grant of summary judgment in favor of her 

employer, United Parcel Service, Inc., (“UPS”) on her hostile work environment

and constructive discharge claims under Title VII of the Civil Rights Act of 

1964 and the Louisiana Employment Discrimination Law.1 For the reasons 

explained below, we AFFIRM the district court’s dismissal of her claims.

 

* 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.

1 The summary judgment order also dismissed retaliation claims, but Tucker does not 

challenge the dismissal of those claims on appeal.

United States Court of Appeals

Fifth Circuit

FILED

June 5, 2018

Lyle W. Cayce

Clerk

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I. Background

Tucker worked for UPS as a local sort supervisor at the Port Allen, 

Louisiana facility from 2012 to 2015. She was responsible for making sure all 

of the incoming packages were sorted and then loaded for delivery at the end 

of the night. She also had authority to discipline her subordinates, though the 

full scope of that authority is unclear from the record. One of her subordinates 

was Larry McCaleb, a union employee whose responsibilities included 

unloading the package cars when needed. Tucker alleges that McCaleb 

sexually harassed her for approximately two years, from August 2012 through

July 2014. The most severe act of alleged harassment occurred on July 24, 

2014, when Tucker claims that McCaleb pressed his penis against her 

backside. Shortly thereafter, Tucker found the business manager, Darin 

Williams, and told him what happened. Williams immediately had Tucker

write a statement, told her McCaleb had been taken out of service pending an 

investigation, and offered her the opportunity to leave for the evening, which 

she accepted. 

Tucker’s written statement says that the July 24 incident occurred when 

she was unloading a package car after noticing there were no unloaders 

around. As she was unloading, McCaleb entered the package car and told her 

he was going to finish the job. Tucker instructed him to unload one of the other 

cars and turned back around to continue her work. When she began unloading 

the car again, McCaleb “walked up behind [her] and pushed his private area 

(penis) into [her] backside.” Tucker immediately turned around and McCaleb 

was “right up on [her].” She told him “you better back up off of me right now!” 

In response, McCaleb “threw his hands up in the air and said ‘alright’ then he 

backed up and walked out of the truck.” Later that night McCaleb also gave a 

statement to Williams and reportedly said that he inadvertently bumped into 

Tucker. 

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The next day, Friday, July 25, Tucker initiated a complaint with the UPS 

Compliance Line. The call notes indicate that after describing the alleged 

offense and an earlier incident of verbal harassment, Tucker expressed 

concerns about whether McCaleb would be present at work and that she did 

not want to see him again. Williams had been advised by the labor manager 

that, without witnesses to the incident, he could not stop McCaleb from 

returning to work. When Tucker showed up for work she was notified of 

McCaleb’s presence. To avoid any additional conflict, Williams gave Tucker 

the day off with full pay. The following week, Tucker took a scheduled vacation 

and filed a report against McCaleb with the Port Allen Police Department. 

While Tucker was on vacation, UPS commenced an investigation into the 

matter and, apparently operating on new information from labor management,

suspended McCaleb pending the investigation’s outcome. UPS was unable to 

confirm whether McCaleb’s conduct was intentional. Thus, after a nearly two 

week suspension, McCaleb was permitted to return to work. UPS took 

corrective action by meeting with McCaleb about the investigation, counseling

him about workplace policies on professionalism and harassment, and 

ultimately prohibiting him from going to the work area where Tucker was 

assigned. About two months after his return, on October 15, 2014, McCaleb

was convicted of simple battery for the incident and sentenced to ninety days 

in jail, one-year supervised release, and ordered to pay a fine plus court costs 

and a supervision fee. UPS did not take any additional action against 

McCaleb.

Tucker said that McCaleb never spoke to her or touched her again. There 

was one instance where he entered her work area, but Tucker reported him, 

UPS addressed it, and it never happened again. Nevertheless, Tucker notified 

her supervisors that she felt unsafe at work because McCaleb was in the 

facility, she would see him outside of her work area, and he would stare at her 

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in a way that felt intimidating. However, Tucker testified that she was still 

able to perform her duties while at work, even though she “didn’t feel like [she] 

could really perform” because she was “constantly looking over [her] shoulder”

and felt “completely out of [her] element” and embarrassed. In an effort to help 

her feel safe, UPS provided someone to walk Tucker to her car and offered her 

opportunities to transfer to another facility ten minutes away, or to change her

shift by taking a new position, but she declined. According to Tucker, when 

she asked whether McCaleb could be transferred to another shift or location, 

UPS told her the union would not allow it.2 

On October 30, 2014, Tucker sent an email about McCaleb to the Area 

Human Resources Manager, Wilfred Edwards, following up on a conversation 

from a week earlier. She explained that McCaleb continued to stare at her and

position himself near the building’s exit so that she would have to walk past 

him, and, on one occasion, he walked directly behind her as she exited the 

building. However, Tucker testified that McCaleb “never approached [her] in 

the parking lot as [she was] walking in or out.” In this email she requested 

that McCaleb be removed from the facility immediately. 

Tucker took the next day off, and then over the weekend decided not to 

return the following Monday because she “couldn’t take it anymore.” Tucker

took medical leave, and then tendered her resignation through her attorney 

after she found another job. In her resignation letter, dated February 20, 2015, 

Tucker’s attorney said she resigned because “UPS failed to move her harasser 

from her place of employment.” Tucker never received a response regarding 

 

2 Evidence shows that the collective bargaining agreement allowed shift changes for 

union employees only when there was a job opening, and when there was an opening it 

required UPS to (1) advertise the position, (2) allow union employees to bid on the available 

position, and (3) offer the position to the bidder with the most seniority. McCaleb testified 

that he was not interested in changing his shift. The labor group informed human resources 

that the only options were discipline or termination. UPS concluded that the information 

gathered from its investigation did not support termination. 

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the October 30 email to Edwards because she could not get emails outside of 

work. 

After filing her EEOC charge on January 29, 2015, and receiving a rightto-sue letter, Tucker filed this lawsuit against UPS, alleging a hostile work 

environment based on sexual harassment, constructive discharge, and 

retaliation claims under federal and state law. The district court granted 

summary judgment to UPS on all claims. Tucker now appeals the summary 

judgment as to her hostile work environment and constructive discharge 

claims. 

II. Standard of Review

We review a grant of summary judgment de novo, applying the same 

standard as the district court. Feist v. La., Dep’t of Justice, Office of the Att’y 

Gen., 730 F.3d 450, 452 (5th Cir. 2013) (quoting Fabela v. Socorro Indep. Sch. 

Dist., 329 F.3d 409, 414 (5th Cir. 2003)). “Summary judgment is appropriate 

if the moving party can show that ‘there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.’”

United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting 

FED. R. CIV. P. 56(a)). After considering the evidence in the light most 

favorable to the non-movant, “[i]f the record, taken as a whole, could not lead 

a rational trier of fact to find for the non-moving party, then there is no genuine 

issue for trial.” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 433 (5th 

Cir. 2005) (quoting Steadman v. Tex. Rangers, 179 F.3d 360, 366 (5th Cir. 

1999)).

III. Discussion

A. Hostile Work Environment Claim

Tucker alleged that McCaleb harassed her over the course of nearly two 

years, beginning in August 2012 and ending in July 2014. In addition to the 

July 24 incident, the alleged harassment consisted of sexually suggestive 

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comments, seductive staring, laughing at her rebukes, and scaring her. No one 

disputes that Tucker can only recover for acts occurring within the 300 days 

preceding the date she filed her EEOC charge, unless the continuing violation 

doctrine applies. Under the continuing violation doctrine, 

(1) the plaintiff must demonstrate that the separate 

acts are related; (2) the violation must be continuing; 

intervening action by the employer, among other 

things, will sever the acts that preceded it from those 

subsequent to it; and (3) the doctrine may be tempered 

by the court’s equitable powers, which must be 

exercised to “honor Title VII’s remedial purpose 

without negating the particular purpose of the filing 

requirement.” 

Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 

738 (5th Cir. 2017) (quoting Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 

328 (5th Cir. 2009)). 

The district court first determined that the incidents prior to November 

2012 did not constitute continuing violations because “intervening action by 

UPS sever[ed] the acts that preceded it from those subsequent to it.” It next 

concluded that it would be inequitable for Tucker to hold UPS liable under the 

continuing violation doctrine for the incidents from November 2012 through 

2013 because “Tucker admitted that she had the ability to discipline 

[McCaleb], and yet, she failed to do so in connection with any of the alleged 

acts of sexual harassment in 2012 and 2013.” Tucker does not challenge the 

first determination, and thus waives any argument that incidents prior to 

November 2012 constitute continuing violations. See Douglas W. ex rel. Jason 

D. W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir. 1998). As to 

the incidents from November 2012 through 2013, Tucker merely asserts in a 

conclusory fashion that no equitable consideration should prevent the court 

from considering the full scope of McCaleb’s behavior. However, she fails to 

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discuss the district court’s determination that her failure to exercise any 

authority to discipline McCaleb bars consideration of those claims. Even if we 

were to consider this argument sufficiently briefed, we would affirm the district 

court’s determination because we perceive no error in its assessment of the 

facts or the exercise of its equitable powers. See Heath, 850 F.3d at 739 (noting 

that the continuing violation theory furthers Title VII’s purpose of

“encourag[ing] employees to work with employers and to take advantage of 

other mechanisms for obtaining relief from ongoing harassment” prior to filing 

an EEOC charge). 

Therefore, only two incidents of alleged harassment remain for our 

consideration: (1) the July 24 incident previously discussed and (2) a June 2014 

incident where McCaleb “was lurking in the pitch black darkness between two 

trailers and responded to Ms. Tucker’s question to another employee.” To 

establish her prima facie case of a hostile work environment based on sexual 

harassment, Tucker must show that 

(1) she belongs to a protected class; (2) was 

subjected to unwelcome sexual harassment; 

(3) the harassment was based on her sex; (4) the 

harassment affected a term, condition, or 

privilege of her employment; and (5) [UPS] knew 

or should have known of the harassment and 

failed to take remedial action.3

Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir. 2001). Harassment must be 

“severe or pervasive” enough to create an abusive working environment in 

order for the plaintiff to recover. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 

473, 479 (5th Cir. 2008). 

 

3 McCaleb raised both federal and state law claims, but the outcome is not different 

here between the two. We rely on Title VII law when interpreting Louisiana’s antidiscrimination law. Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998); see also

Tanner v. LSU Fireman Training Program, 254 F.3d 1082, 2001 WL 564147, at *2 (5th Cir. 

2001) (per curiam) (unpublished). 

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The district court determined that the alleged harassment was not 

sufficiently severe or pervasive and that UPS took prompt remedial action. We 

pretermit this issue because, even assuming without deciding that the alleged 

harassment was sufficiently severe and that UPS should have known that 

McCaleb intentionally committed the July 24 offense based on his subsequent 

conviction, we hold that UPS took sufficient remedial action to avoid liability 

under Title VII.

“A defendant may avoid Title VII liability when harassment occurred but 

the defendant took ‘prompt remedial action’ to protect the claimant.” WilliamsBoldware v. Denton Cty., 741 F.3d 635, 640 (5th Cir. 2014).4 The remedial 

action must be “reasonably calculated” to put an end to the harassment. See 

id. It is not necessary for employers to utilize the severest sanction against 

the offending employee in order to demonstrate “prompt remedial action.” Id.; 

see also Landgraf v. USI Film Prod., 968 F.2d 427, 430 (5th Cir. 1992) (“Title 

VII does not require that an employer use the most serious sanction available 

to punish an offender . . . .”). Where the incidents of harassment do not involve 

“a protracted outpouring of . . . invidious harassment that require[] large-scale 

institutional reform,” the employer is only “required to implement prompt 

remedial measures to prevent [the harasser], and anyone else, from engaging 

in [the complained of] harassing conduct toward [the victim].” WilliamsBoldware, 741 F.3d at 641.

 

4 Because Tucker was harassed by someone who was not her supervisor, the fifth 

prong is part of the equation. See Watts v. Kroger Co., 170 F.3d 505, 509 & n.3 (5th Cir. 1999). 

Under these circumstances, the fifth prong is necessary to establish vicarious liability. 

See id. at 509. When, on the other hand, the alleged harasser is a supervisor with immediate 

or successive authority over the victim, the fifth prong is unnecessary because the employer 

is subject to vicarious liability for hostile work environments created by that supervisor. See 

id. (citing Burlington Ind. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton,

524 U.S. 775 (1998)).

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In Skidmore v. Precision Printing & Packaging., Inc., evidence showed

that the harasser subjected the victim to “constant sexual remarks,” 

“sometimes came up behind her and licked or kissed her face or neck,” “pull[ed] 

her waist to his if she bent over,” and “once put his hands around her neck as 

if to choke her when she confronted him about his behavior.” 188 F.3d 606, 

611, 613 (5th Cir. 1999). Co-workers testified that the harassment was 

“constant.” Id. at 615. When notified of the harassment, the employer 

instructed the harasser to leave the victim alone and no longer scheduled the 

victim to work the same shift as him. Id. at 611. Thereafter, the harasser 

never touched or spoke to the victim again. Id. Nevertheless, the victim 

alleged that she continued to feel uncomfortable at work because the harasser 

“leered” at her and was present in common work areas, and employees at work 

began to ostracize her after learning of her allegations. Id. She further 

testified to severe mental suffering as a result of the harassment, was 

diagnosed with post-traumatic stress disorder, and was recommended at least 

a year of psychiatric treatment. Id. at 612. We held that the employer’s 

response “constitute[d] ‘prompt remedial action’ as a matter of law” because 

the harasser’s “conduct ceased its offensive nature,” despite the fact that no 

investigation was made until after the EEOC complaint was filed, the harasser 

was never reprimanded, and no follow-up inquiry was made to determine 

whether the harassment had ended. Id. at 616.

Here, we hold that that the undisputed evidence shows as a matter of 

law that UPS took prompt remedial action sufficient to avoid Title VII liability 

because it immediately took action to protect Tucker while the investigation 

was pending, and then following the investigation it moved Tucker to a 

separate work area, instructed McCaleb not to enter that work area, counseled 

McCaleb on its sexual harassment and professionalism policies, provided an 

escort to help Tucker feel safer, and the sexual harassment ceased. See id.; 

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Boldware, 741 F.3d at 642 (holding that the employer took sufficient remedial 

action when it “took seriously the [victim’s] complaints and its remedial efforts 

effectively halted the racially harassing conduct of which she complained”); 

Harvill, 433 F.3d at 437, 439 (holding that the employer took sufficient 

remedial action to end sexual harassment of an employee fondling the victim’s 

breasts numerous times and pressing his body against the victim from behind, 

among other things, because the employer “acted swiftly in taking remedial 

measures” by separating the employees “and the harassment ceased”); see also

Caudillo v. Cont’l Bank/Bank of Am. Illinois, 191 F.3d 455, 1999 WL 542899, 

at *1, *4 (7th Cir. 1999) (unpublished) (holding that the employer took prompt 

remedial action to end sexual harassment of an employee rubbing his penis 

against the victim’s backside while she was working,5 among other things, 

because the harasser was instructed to avoid contact with the victim, counseled 

on ending the harassment, the victim was reassigned to a cubicle to minimize

contact with the employee, and the harassment ceased despite subsequent

staring from the employee). Therefore, we affirm the district court’s summary 

judgment in favor of UPS on the hostile work environment claim.

B. Constructive Discharge Claim

Tucker argues that she was constructively discharged because (1) UPS 

never punished McCaleb, (2) she was subjected to McCaleb’s presence at work, 

(3) UPS took no additional action to stop the harassment after McCaleb’s 

conviction, and (4) UPS punished her by providing an escort to her vehicle at 

night, offering her an opportunity to switch jobs and facilities as an 

accommodation, and reprimanding her for missing work after McCaleb’s trial. 

 

5 See Caudillo v. Cont’l Bank/Bank of Am. Illinois, No. 97 C 884, 1998 WL 409406, at 

*1 (N.D. Ill. July 16, 1998), aff’d, 191 F.3d 455 (7th Cir. 1999).

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“To survive summary judgment on a constructive discharge claim, the 

plaintiff must provide evidence that working conditions were ‘so intolerable 

that a reasonable employee in her position would [have felt] compelled to 

resign.’” Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 331 (5th Cir. 

2004) (quoting Webb v. Cardiothoracic Surgery Assocs. of N. Tex., 139 F.3d 532, 

539 (5th Cir. 1998)). This requires “aggravating factors” resulting in “a greater 

degree of harassment than is required for a hostile work environment claim.” 

Id. at 331–32. The following actions are considered aggravating factors:

(1) demotion; (2) reduction in salary; (3) reduction in 

job responsibilities; (4) reassignment to menial or 

degrading work; (5) reassignment to work under a 

younger supervisor; (6) badgering, harassment, or 

humiliation by the employer calculated to encourage 

the employee’s resignation; or (7) offers of early 

retirement or continued employment on terms less 

favorable than the employee’s former status.

Id. at 331–32.

We agree with the district court that Tucker failed to discharge her 

burden to raise a fact issue in this regard. UPS’s remedial actions stopped the 

sexual harassment, and McCaleb neither spoke to nor touched Tucker again. 

Although McCaleb’s presence at work made her feel uncomfortable, Tucker

said she was still able to perform her duties. The subsequent conduct 

complained of by Tucker does not constitute an aggravating factor and did not 

result in a greater degree of harassment than a hostile work environment, and 

thus cannot form the basis of a constructive discharge claim. See id. at 332 

(holding that the plaintiff could not survive summary judgment on her 

constructive discharge claim because she merely alleged harassment but no

aggravating factor, and the employer’s remedial measures ended the sexual 

harassment); cf. Barnett v. Boeing Co., 306 F. App’x 875, 879 (5th Cir. 2009) 

(per curiam) (holding that the plaintiff failed to show a hostile work 

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environment where the harasser “leered at [her], touched her in sexually 

inappropriate and unwelcome ways, and allegedly actively intimidated her 

after she complained of his actions”).

AFFIRMED.

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