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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50529
KELLY A. SCRIVNER,
Plaintiff-Appellant,
v.
SOCORRO INDEPENDENT SCHOOL DISTRICT; and,
ALFONSO CARDENAS, Officially,
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Texas
March 16, 1999
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
I. INTRODUCTION
Kelly Scrivner, a teacher at Myrtle Cooper Elementary
School ("Myrtle Cooper"), sued Socorro Independent School District
("SISD") and her school's Principal Alfonso Cardenas, officially,
alleging, inter alia, sexual harassment and retaliation in
violation of Title VII. The district court dismissed Scrivner's
claims on summary judgment, and she appealed.1 Finding that the
1Scrivner does not appeal the district court's dismissal of
her claims under 42 U.S.C. § 1983. Moreover, Scrivner's claims
against Cardenas, individually, were settled prior to dismissal.

appellees properly asserted an affirmative defense to Scrivner's
sexual harassment/hostile work environment claims and, further,
that Scrivner's retaliation claims are unsubstantiated, we affirm.
II. FACTUAL AND PROCEDURAL HISTORY
In 1994, Scrivner began working for SISD at Myrtle
Cooper. Beginning in the summer of 1995, Scrivner alleges Cardenas
began sexually harassing her. He made lewd comments, snapped her
bra, insinuated that she was a lesbian, and once, while she bent
down to pick up a pen, made a particularly graphic and offensive
remark.
In November 1995, SISD Superintendent Dr. Jerry Barber
received an anonymous letter -- which Scrivner did not write --
complaining of Cardenas's sexual harassment of teachers and his use
of vulgar language in front of staff and parents. SISD immediately
launched an investigation into the allegations. As part of the
investigation, SISD interviewed 64 of Myrtle Cooper's faculty and
staff. During the course of the interviews, only three employees
stated that Cardenas's conduct was sexually harassing or vulgar.
The vast majority asserted that the working atmosphere at Myrtle
Cooper was good to very good and that the staff was treated
acceptably. During the course of her interview, Scrivner denied
that Cardenas's conduct was sexually harassing or vulgar, and she
did not inform SISD of Cardenas's sexually harassing actions toward
her. Based on the investigation, SISD found no "tangible evidence
2

of sexual harassment," but Cardenas was warned in a memorandum to
refrain from making unprofessional "[j]okes, innuendoes, and
pointed comments".
In March 1996, upset that Cardenas had called her a
lesbian and amazed that his harassing behavior had intensified
following the initial SISD investigation, Scrivner filed a formal
harassment complaint with the district. One month later, Scrivner
filed an EEO complaint. Again, SISD promptly investigated the
complaint. On April 19, 1996, SISD published the results of the
investigation, concluding that Cardenas's conduct could create the
perception of a hostile work environment among female employees of
Myrtle Cooper. Following the investigation, Cardenas was removed
from his position at Myrtle Cooper,2 was reassigned within SISD,
and, within the year, resigned.
Scrivner filed this Title VII action in July 1997 after
she received a right-to-sue letter from the EEOC. The parties
completed extensive discovery in preparation for trial. However,
on the eve of trial, the district court granted the appellees'
motion for summary judgment. Scrivner timely appealed.
2Because the investigation was not concluded until near the
end of the school year, Cardenas was allowed to finish the year at
Myrtle Cooper before being reassigned.
3

III. ANALYSIS
A.
Standard of Review
When a district court grants summary judgment, this court
reviews the determination de novo, employing the same standards as
the district court. See Urbano v. Continental Airlines, Inc., 138
F.3d 204, 205 (5th Cir.), cert. denied, --- U.S. ---, 119 S. Ct.
509 (1998). Summary judgment is appropriate when, viewing the
evidence in the light most favorable to the nonmoving party, the
record reflects that no genuine issue of material fact exists, and
the moving party is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548,
2552-53 (1986); see also Fed. R. Civ. P. 56(c).
B.
Hostile Work Environment
In Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S. Ct.
2257 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118
S. Ct. 2275 (1998), the Supreme Court discussed the standard for
imposing vicarious liability when an employer's supervisors are
accused of creating a sexually hostile work environment. Unguided
by these decisions, the district court dismissed the pending
hostile work environment claims based on SISD's prompt remedial
efforts following Scrivner's complaint. See Nash v. Electrospace
Sys., Inc., 9 F.3d 401, 403 (5th Cir. 1993). On appeal, the
parties focused their arguments on the impact of Ellerth and
Faragher on the district court's opinion.
4

Scrivner's claims rise or fall on the application of the
Ellerth/Faragher affirmative defense to the conduct of the parties.
SISD concedes that Cardenas's conduct created a hostile work
environment3 and that Cardenas, as principal, was Scrivner's
supervisor. But according to the Supreme Court's new test, SISD
may still escape liability for Cardenas's conduct if (1) SISD
"exercised reasonable care to prevent and correct promptly any
sexually harassing behavior," and (2) Scrivner "unreasonably failed
to take advantage of any preventive or corrective opportunities
provided by [SISD] or to avoid harm otherwise." See Ellerth, 524
U.S. at ---, 118 S. Ct. at 2270. Based on the complete record
presented to the district court and Scrivner's failure to cite any
additional material evidence, we find that the facts of this case
fall squarely within the Ellerth/Faragher affirmative defense.
SISD's anti-discrimination policy and its response to the
two sexual harassment complaints were both reasonable and vigorous.
See, e.g., Carmon v. Lubrizol Corp., 17 F.3d 791, 793-95 (5th Cir.
1994); Nash, 9 F.3d at 403-04. When advised of each complaint,
SISD swiftly began investigating Cardenas's behavior. Following
the first investigation, during which SISD interviewed all of the
Myrtle Cooper employees, Cardenas was warned to curtail certain
3Because SISD does not argue that Cardenas's conduct did not
create a hostile work environment, we offer no opinion on the issue
and assume arguendo, as did the district court, that the conduct
was sufficiently severe and pervasive to meet the plaintiff's Title
VII burden.
5

conduct. After Scrivner complained and SISD completed its second
investigation, Cardenas was removed from his position at Myrtle
Cooper, and SISD accepted his resignation from the district.
The summary judgment record also reflects that Scrivner
failed reasonably to avail herself of SISD's preventive and
corrective sexual harassment policies. From the summer of 1995 to
March 1996, Scrivner never complained about Cardenas's increasingly
offensive behavior. In fact, when presented with the opportunity
to apprise SISD of Cardenas's harassment during the investigation
instigated by the anonymous letter, Scrivner chose to lie,
reporting that she had not witnessed any sexually harassing conduct
by Cardenas and that he treated her "professionally."
By failing to inform SISD of Cardenas's conduct when
given an express opportunity, Scrivner acted unreasonably.4
Scrivner now asserts that she lied during the investigation because
of Cardenas's intimidating presence outside the interview room.
Contrary to this claim, Scrivner testified at her deposition that
she was not upset or under stress during the interview but felt
that the district could have conducted the investigation in a more
"professional" manner.
4See, e.g., Ellerth, 524 U.S. at ---, 118 S. Ct. at 2270
("[W]hile proof that an employee failed to fulfill the
corresponding obligation of reasonable care to avoid harm is not
limited to showing any unreasonable failure to use any complaint
procedure provided by the employer, a demonstration of such failure
will normally suffice to satisfy the employer's burden under the
second element of the defense."); Faragher, 524 U.S. at ---, 118 S.
Ct. at 2293 (same).
6

When an employer initiates a good-faith investigation of
charges of discrimination, it must be able to rely on the evidence
it collects. By misleading investigators, Scrivner thwarted the
purposes of Title VII and frustrated SISD's efforts to remedy past
misconduct and prevent future harassment by Cardenas. When there
is no evidence that the investigation was heavily skewed against a
complainant's interest, this court cannot sanction such deceptive
conduct. The appellees have properly set forth the affirmative
defense to Title VII liability for Cardenas's harassing behavior.5
C.
Retaliation
Scrivner has also failed to support a Title VII
retaliation cause of action. The prima facie claim of retaliation
has three elements: (1) the employee must have engaged in an
activity protected by Title VII; (2) the employer must have
subjected the employee to an adverse employment action; and (3) a
causal nexus must exist between the plaintiff's participation in
the protected activity and the adverse employment action. See
Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997).
To carry her ultimate Title VII burden, an employee must also show
that her employer would not have taken the adverse employment
5Although Scrivner argues that the Ellerth/Faragher
affirmative defense goes to damages, the Supreme Court itself
characterized the defense as a limit to liability. See Ellerth,
524 U.S. at ---, 118 S. Ct. at 2271 ("In light of our decision,
[the employer] is still subject to vicarious liability for [its
supervisor's] activity, but [the employer] should have an
opportunity to assert and prove the affirmative defense to
liability." (emphasis added)).
7

action "but for" the employee's participation in the protected
activity. See Long v. Eastfield College, 88 F.3d 300, 305 n.4 (5th
Cir. 1996). Scrivner cites two actions that allegedly constituted
impermissible retaliation.
First, Scrivner maintains that SISD denied her
advancement and promotion within the district following her
complaint against Cardenas. But Scrivner offers no admissible
evidence of a causal link between the alleged adverse actions and
her filing of a Title VII complaint. See Grimes v. Texas Dep't of
Mental Health and Mental Retardation, 102 F.3d 137, 139 (5th Cir.
1996) (conclusory allegations, unsubstantiated assertions, and
subjective beliefs insufficient to support discrimination claim).
Second, Scrivner appears to argue that Cardenas's
counterclaim in this action amounts to retaliation.6 It is not
obvious that counterclaims or lawsuits filed against a Title VII
plaintiff ought to be cognizable as retaliatory conduct under Title
VII. After all, companies and citizens have a constitutional right
to file lawsuits, tempered by the requirement that the suits have
an arguable basis. See. Fed. R. Civ. Proc. 11.7 Even if the
filing of a counterclaim or lawsuit could violate Title VII,
6The counterclaim was dismissed while the case was pending in
district court.
7But see, e.g., Martinez v. Deaf Smith County Grain
Processors, 583 F. Supp. 1200, 1209 (N.D. Tex. 1984) (employer's
filing of lawsuit may constitute retaliation under Fair Labor
Standards Act).
8

however, the cases Scrivner relies upon involved counterclaims
filed by employers, not by defendants joined in their individual
capacities. Cardenas filed his claim against Scrivner in his
individual capacity. His conduct cannot be attributed to the
district and does not constitute retaliation in violation of Title
VII.
IV. CONCLUSION
When given the opportunity to report Cardenas's sexual
harassment during the course of a prompt SISD investigation into
his conduct, Scrivner misled investigators. Under these circum-
stances, Scrivner's conduct was so unreasonable that a trial on the
merits of SISD's affirmative defense would be futile. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511
(1986). Her claims of illegal retaliation are unsupported.
Although the district court applied a superseded Title VII standard
to the facts, the record is complete for evaluation under the new
standard, and summary judgment was properly granted.
AFFIRMED.
9