IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30616

Summary Calendar

CATHERINE J. VALDRY, 

 Plaintiff – Appellant,

v.

MEGAN J. BRENNAN, Postmaster General, 

 Defendant – Appellee.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:15-CV-453

Before KING, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Catherine J. Valdry appeals the district court’s grant of summary 

judgment on her Title VII retaliatory hostile work environment claim, arguing 

primarily that the district court erred by applying the incorrect standard to 

one of the elements of her prima facie case—an argument Valdry has forfeited. 

We AFFIRM.

 

* Pursuant to Fifth Circuit 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should not be published and is not precedent except under the limited circumstances set forth 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 Fifth Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 11, 2018

Lyle W. Cayce

Clerk

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I.

Catherine J. Valdry, a letter carrier for the United States Postal Service 

at the Istrouma station in Louisiana, alleges that she suffered from a 

retaliatory hostile work environment because of the actions of Clifton 

Maryland. Maryland, a clerk supervisor who then became Manager of 

Customer Service at the Istrouma station, subjected Valdry to menacing looks 

on many occasions over about three years.1 These menacing looks began after 

Valdry declined to go fishing with Maryland in late 2012. While also giving

menacing looks, Maryland sometimes smirked at Valdry, stood with his hands 

on his hips, stuck out his chest, or licked his lips. After Valdry complained 

about Maryland’s behavior, Maryland told her, “I’m in charge now. I’m gonna 

get you because you reported me.” On this same day, Maryland gave Valdry 

the most menacing look yet, after which she suffered a panic attack. 

Valdry also alleges that Maryland inappropriately monitored her and 

engaged in other demeaning behavior. Maryland called Valdry about a 

customer complaint and allowed the customer to listen to Valdry’s response, 

unbeknownst to Valdry. Another time, Maryland stated that he did “not talk 

to devils.” Around this same time, Maryland came to within a foot from 

Valdry’s face and told her, “Dumb dumb, you gonna miss more overtime.” After 

Valdry called the police because a customer had stationed a dog by his mail 

box, Maryland gave her an investigative interview. About a year later, 

Maryland remarked to Valdry, “Emh, Emh, you b—h.” Valdry alleges that she 

was traumatized and disabled for thirty days because of her prior encounters 

with Maryland. 

 

1 We construe the facts here in the light most favorable to Valdry. See Galindo v. 

Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

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The district court granted the summary-judgment motion of Megan J. 

Brennan, the Postmaster General of the United States. While noting that the 

Fifth Circuit had not yet decided whether a retaliatory hostile work 

environment claim is cognizable under Title VII, the district court nevertheless 

allowed Valdry to pursue her claim. The district court also assumed, for the 

purposes of the summary-judgment motion, that it could consider all events 

occurring after Valdry’s internal complaint about Maryland on September 13, 

2013. In setting forth the elements for a prima facie case of retaliatory hostile 

work environment, the district court stated that the harassment must have 

“affected a term, condition, or privilege of her employment (i.e., the harassment 

was so pervasive or severe as to alter her conditions of employment and create 

an abusive working environment).” While quoting Gibson v. Verizon Services 

Organization, Inc., 498 F. App’x 391, 394 (5th Cir. 2012), for the proposition 

that a court should not “disaggregate and separately analyze incidents that are 

alleged to constitute a hostile work environment,” the district court sought to 

evaluate the categories of harassment that Valdry alleged. The district court 

analyzed the monitoring and investigating that Valdry alleged and then 

analyzed the incidents of staring and offensive language. 

Considering the totality of the circumstances, the district court held that 

Valdry “failed to make out a prima facie claim for retaliatory hostile work 

environment because, even construing the facts in the light most favorable to 

[Valdry], no reasonable juror could find that the harassment was sufficiently 

severe or pervasive to alter the conditions of the victim’s employment and 

create an objectively hostile work environment.” 

II.

“We review a grant of summary judgment de novo.” N.Y. Life Ins. Co. v. 

Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996). Summary judgment is 

appropriate when there is “no genuine dispute as to any material fact and the 

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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]e 

may affirm the district court’s decision on any grounds supported by the 

record.” U.S. ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 323 (5th Cir. 

2017) (quoting Phillips ex rel. Phillips v. Monroe County, 311 F.3d 369, 376 

(5th Cir. 2002)). We consider the facts in the light most favorable to the nonmoving party. Galindo, 754 F.2d at 1216. However, an appellant “cannot 

attack summary judgment on appeal by raising distinct issues that were not 

before the district court.” Colony Creek, Ltd. v. Resolution Tr. Corp., 941 F.2d 

1323, 1326 (5th Cir. 1991) (quoting John v. Louisiana, 757 F.2d 698, 710 (5th 

Cir. 1985)). “If a party wishes to preserve an argument for appeal, the party 

‘must press and not merely intimate the argument during the proceedings 

before the district court.’” Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 

(5th Cir. 2005) (quoting N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 n.4 (5th 

Cir. 1996)). An appellant must raise an argument “to such a degree that the 

district court has an opportunity to rule on it.” Id. (quoting Brown, 84 F.3d at

141 n.4). 

III.

On appeal, Valdry raises four issues: (1) whether the district court erred 

in applying the “severe or pervasive” standard rather than a “material 

adversity” standard from Burlington Northern & Santa Fe Railway Co. v. 

White, 548 U.S. 53 (2006); (2) whether the court erred in not considering 

plaintiff’s “particular susceptibility”; (3) whether the court erred in not 

analyzing alleged harassing behavior from before the date of Valdry’s first 

internal complaint; and (4) whether the court erred by disaggregating the 

evidence of retaliatory harassment. 

Valdry has forfeited the first two issues. As to the first issue—the 

primary basis for Valdry’s appeal—Valdry failed to argue to the district court 

that Burlington’s standard should apply rather than the “severe and 

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pervasive” standard. Indeed, in opposing the motion for summary judgment,

Valdry specifically argued that the harassment she experienced “was severe 

and pervasive.” As to the second issue, Valdry failed to argue before the district 

court the theories she now raises regarding fragility or “particular 

susceptibility” to emotional distress. 

Valdry fails to create a genuine issue of material fact on the third issue.

Valdry contends that the district court erred when it set the key time frame of 

events to analyze as beginning on September 13, 2013—the date of Valdry’s 

first internal complaint against Maryland. However, the district court began 

its factual recitation by describing the alleged harassing incidents that 

occurred between late 2012 and September 13, 2013. Moreover, the district 

court determined that Valdry sufficiently established a temporal connection 

between protected activity and alleged retaliatory harassment. Valdry cannot 

establish that this dispute over when to start the time frame creates a genuine, 

material fact dispute as to causation or any other element of her retaliatory 

hostile work environment claim. 

Valdry’s final argument also lacks merit. The district court did not 

improperly disaggregate incidents of alleged harassment in an attempt to 

“divide and conquer.” Rather, the district court identified the two major 

categories into which the various incidents fit and then—considering all 

incidents—made its determination.

IV.

Accordingly, we AFFIRM the judgment of the district court. In addition, 

we DENY the motion for summary affirmance—which was carried with the

case—as MOOT. 

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