Clark v. Bally's Tunica Inc, et al

* 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this opinion should not be published and is not precedent except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 Although there is no individual liability under Title VII,
Braxton was named as a defendant because Clark had also asserted
state law tort claims against him. Clark has not appealed the
dismissal of her state law claims.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 01-60740
(Summary Calendar)
_______________________________
RHONDA CLARK,
Plaintiff-Appellant,
versus
BALLY’S TUNICA, INC. a/k/a BALLY’S HOTEL AND CASINO;
and EDRIC BRAXTON,
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(2:00-CV-112)
_________________________________________________
May 1, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM*:
Plaintiff-Appellant Rhonda Clark appeals the district court’s
order granting summary judgment to defendants-appellees Bally’s
Tunica, Inc. (Bally’s) and Edric Braxton,1 dismissing her Title VII
claims for sexual harassment and creation of a hostile work

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environment. Agreeing with the district court, we affirm.
I.
FACTS AND PROCEEDINGS
Clark’s duties as a cashier at Bally’s included providing
coins to the employees who filled slot machines. Braxton was a
slot machine supervisor who, during work hours, was frequently
present in the same area as Clark and had routine contact with her.
As he only supervised slot machine attendants, Braxton had no
supervisory control or direct authority over Clark.
At one point during their employment at Bally’s, Braxton began
making advances to Clark. Over the course of one or two months,
Braxton caressed Clark’s hands, told her that she had “bedroom
eyes,” expressed his desire to kiss her all over, and told Clark to
inform her mother that he would be her new son-in-law. Although
Clark felt uncomfortable with Braxton’s actions and remarks, she
did not immediately report them to her superiors.
A few weeks later, as Clark was walking with a male co-worker,
Braxton approached her, grabbed her by the arm, and informed her
that he did not want her seeing other men. On the next workday,
Clark reported Braxton’s actions to another slot machine
supervisor, who, in response, advised Clark to report the incident
to her immediate supervisor, Sue Cerbe. After reporting the
incident to Cerbe, Clark was directed to fill out an incident
report, which Cerbe forwarded to Bally’s Human Resource Department.

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2 She maintains that she voluntarily quit, whereas Bally’s
maintains that she was fired after failing to return to work.
3
The day after receiving the incident report, Neil Davidson, a
Bally’s employment manager, began an investigation. This included
interviews with Braxton, Clark, and other co-workers.
After Clark submitted her report and returned to work, there
was one workday during which she was forced to come into contact
with Braxton. According to Clark, Braxton gave her angry looks and
snatched money out of her hands.
At the conclusion of Davidson’s investigation, Bally’s
suspended Braxton for five days for failure to comply with a
company directive during an investigation and for exercising poor
judgment in his comments to his co-workers. Braxton was informed
that his alleged conduct towards Clark was improper and
unacceptable, and he was warned that retaliation against Clark or
continued instances of improper behavior would result in further
discipline, possibly including termination.
After Braxton was disciplined, Davidson phoned Clark to tell
her that remedial action had been taken against Braxton. Davidson
encouraged Clark to return to work, assuring her that her safety
was not at risk and that if any further problems with Braxton
should be reported, they would be dealt with. Clark nevertheless
refused to return to work.2 By her own admission, she did not
receive harassing comments from Braxton after her complaint was
filed. Rather, she cited ostracism by her other co-workers as the

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3 The alleged ostracism from her co-workers was apparently
related to the filing of her incident report against Braxton.
4 Fed. R. Civ. P. 56(c); Celotex Corp. v.Catrett, 477 U.S.
217 (1986).
5 Casiano v. AT&T Corp., 213 F.3d 278 (2000).
6 793 F.2d 714 (5th Cir. 1986) (cited in Skidmore v.
Precision Printing and Packaging Inc., 188 F.3d 606 (5th Cir.
1999)).
4
reason for refusing to return to work.3
Clark then filed an EEOC charge, and subsequently filed this
suit against Bally’s. The district court granted summary judgment
in favor of Bally’s, holding that Clark could not raise a genuine
dispute of material fact on all necessary elements of her Title VII
claim. Clark timely filed a notice of appeal.
II.
ANALYSIS
We review the district court’s grant of summary judgment de
novo.4 As Bally’s did not take any adverse employment action
against Clark, her complaint must be treated as a hostile work
environment claim.5 We held in Jones v. Flagship International6
that, to prevail on a hostile work environment claim, a plaintiff
in Clark’s position must prove that (1) she was a member of a
protected class, (2) she was subjected to unwelcome harassment, (3)
the harassment was based on sex, (4) it affected a term, condition,
or privilege of her employment, and (5) her employer knew or should

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7 Id. We note that after the Supreme Court’s decisions in
Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca
Raton, the Flagship five-factor analysis is only applicable to
cases involving harassment by a co-worker. This case presents
somewhat of a hybrid: Although Braxton was not Clark’s supervisor
and did not possess direct authority over her, he was employed in
a managerial role, which may have given him some measure of
influence and weight with Clark’s supervisors. Both parties and
the district court, however, have analyzed this case under the
Flagship factors and we follow suit. In any case, even if the
Ellerth/Faragher analysis were to apply, we would reach the same
result.
5
have known of the harassment but failed to take prompt remedial
action.7
Regarding the fourth factor, Braxton’s harassment must be
sufficiently pervasive and severe as to alter the terms and
conditions of Clark’s employment. Although we are doubtful whether
the seriousness and duration of Braxton’s actions in this case
rise to such an actionable level under Title VII, we assume, for
the sake of argument, that they do. Even assuming, arguendo, that
Clark could meet the fourth factor, however, we are convinced that
she cannot raise a genuine dispute of fact as to the fifth factor
—— employer scienter and inaction —— and therefore affirm the
judgment of the district court.
The summary judgment evidence presented demonstrates that, on
receiving Clark’s incident report, Bally’s immediately commenced
and prosecuted an investigation. Within a week or two after
commencing its investigation, Bally’s concluded it and imposed a
punishment on Braxton that was reasonably calculated to convey to

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him that his conduct was improper and unacceptable, and that
further conduct of that or a retaliating nature would result in
more severe sanctions. Although Bally’s did not fire Braxton, its
remedial action was prompt and Clark was not sexually harassed by
him afterwards, even in the one instance in which she worked near
him after the filing of her complaint. Under these facts, Clark
cannot maintain a hostile work environment claim against Bally’s.
Therefore, the district court’s summary dismissal of her action was
proper.
III.
CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment in favor of Bally’s is
AFFIRMED.

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