Case: 15-30871    Document: 00513600612     Page: 1   Date Filed: 07/20/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                 No. 15-30871                     United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                     July 20, 2016
                                                                    Lyle W. Cayce
KANDICE PULLEN,                                                          Clerk

                                           Plaintiff–Appellant,

versus

CADDO PARISH SCHOOL BOARD,

                                           Defendant–Appellee.




                Appeal from the United States District Court
                   for the Western District of Louisiana




Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Kandice Pullen, an employee of the Caddo Parish School Board, claimed
that she was sexually harassed by Timothy Graham, another board employee,
in violation of Title VII. Graham was Pullen’s supervisor for certain periods of
the alleged harassment, but Pullen claims that the harassment continued after
she had transferred to a different department. The district court granted the
board’s motion for summary judgment, and Pullen appeals. We reverse the
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                                    No. 15-30871
summary judgment as to the period during which Graham was Pullen’s super-
visor and affirm as to the period during which he was not.

                                          I.
      Pullen was hired as a temporary clerical employee and worked in the
purchasing department at the central office for two spans of time. The first
was from February 2011 until the end of June 2011; the second was from Feb-
ruary 2012 until May 2012. Graham was her supervisor in the purchasing
department. From May 2012 until the end of July 2012, she worked in the
department of classified personnel (which is one of the board’s two human
resources (“HR”) departments 1), also in the central office. During that time,
Pullen’s supervisor was Cleveland White.

      Pullen avers that Graham sexually harassed her during all three of these
periods and at a lunch in October 2012. During the first period, Graham
allegedly engaged in repeated verbal sexual harassment. During her second
stint in the purchasing department, Pullen says that, in addition to frequent
verbal harassment, Graham touched her thigh once and put his arm around
her several times. On one occasion he also called her into his office and showed
her inappropriate pictures of other women that he had stored on an external
hard drive. Pullen further states that, after she moved to the classified per-
sonnel department (also located at the central office), Graham would come to
the personnel department to talk to her; sometimes he would make inappro-
priate comments in the same vein as before.

      Pullen did not contemporaneously tell anyone at the office about the
harassment. But in late February 2013, another temporary clerical employee,



      1   The board had two separate HR departments, one for employees with a teaching
certificate (“certified personnel”) and one for those without (“classified personnel”).
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                                 No. 15-30871
Aimee Harris, informed White (the head of classified personnel) and Mary
Robinson (the board’s chief of staff) that she wished to file a sexual-harassment
complaint against Graham based on inappropriate remarks made during her
first week on the job in the purchasing department. In Harris’s written com-
plaint, she detailed allegations similar to Pullen’s. Harris’s written complaint
also identified Pullen as a person potentially subject to similar harassment
from Graham.

      The board placed James Woolfolk, its chief operations officer, in charge
of investigating Harris’s complaint and preparing a written report according
to the board’s standing procedures for investigation of sexual-harassment alle-
gations. Woolfolk interviewed several people in the course of the investigation,
including Harris and Pullen, concluding that Graham’s conduct was not sexual
harassment but was nonetheless unprofessional and inappropriate. He there-
fore recommended that Graham be suspended without pay for a week and
required to undergo counseling. The board’s superintendent agreed, and that
punishment was imposed on April 4, 2013.

      On March 6, 2013—during the pendency of Woolfolk’s investigation—
Pullen sent a letter complaint to the Equal Employment Opportunity Commis-
sion (“EEOC”) detailing Graham’s alleged harassment. On March 18, the
EEOC contacted Pullen to confirm that she wanted to file a formal charge. On
April 17, the EEOC mailed a draft charge of discrimination for her review and
signature; she signed and returned it.

                                       II.
      Pullen sued Graham and the board in state court on January 29, 2014,
and the board removed. The suit claimed violations of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., for sex discrimination in the form


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                                       No. 15-30871
of sexual harassment. 2 Pullen later amended to remove Graham as an indi-
vidual defendant. After discovery, the parties filed cross-motions for summary
judgment.

       The district court granted summary judgment for the board. It agreed
with the board that the sexual-harassment claim had to be analyzed under two
distinct legal standards—one for the period in which Pullen worked in the pur-
chasing department under Graham’s supervision, and one for the later period.
Then, it rejected the board’s contention that Pullen had not filed her EEOC
complaint timely. 3 The court then turned to the substance of the motion.

       First, the district court addressed the period of harassment in which
Graham was Pullen’s supervisor. It held that the board had established that
there were no material factual disputes regarding its entitlement to judgment
on its Ellerth/Faragher affirmative defense. 4 The court held that the first
prong of the test was satisfied because the board had put forward evidence that
it had a detailed sexual-harassment policy that was posted on bulletin boards
around the central office and was available online, and on which it trained the



       2Pullen also asserted quid pro quo and retaliation claims, but she jettisoned them in
her opposition to summary judgment.
       3 Timely filing an EEOC claim is a condition precedent to filing a Title VII claim in
federal court, but it is not jurisdictional; therefore, ordinary waiver and abandonment princi-
ples control. Nat’l R.R. Passenger Corp. v. Morgan, 

, 121 (2002). The board does
not press its timeliness argument on appeal, so it is waived under this court’s normal princi-
ples of argument presentation and preservation. E.g., Yohey v. Collins, 

, 224–
25 (5th Cir. 1993).
       4 See Burlington Indus. v. Ellerth, 

, 765 (1998); Faragher v. City of Boca
Raton, 

, 807 (1998). The Ellerth/Faragher defense allows an employer to claim
immunity from vicarious liability for a supervisor’s sexual harassment if it establishes “(a)
that the employer exercised reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the employer or to avoid harm other-
wise.” E.E.O.C. v. Boh Bros. Constr. Co., 

, 462 (5th Cir. 2013) (en banc) (quoting
Watts v. Kroger Co., 

, 509–10 (5th Cir.1999)).
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                                   No. 15-30871
majority of its employees on a regular basis. The second prong was satisfied
because Pullen’s failure to report the alleged harassment for well over two
years was unreasonable.

      Second, the district court addressed the period of harassment during
which Graham was not Pullen’s direct supervisor. It agreed with the board
that Pullen had not put forth any evidence to indicate that management actu-
ally knew or should have known about the harassment.             Thus, the court
granted summary judgment on the coworker-harassment claims.

                                       III.
      Because there is a genuine dispute of material fact as to whether the
School Board is entitled to immunity under the Ellerth/Faragher defense, we
reverse the summary judgment in that regard.          Normally an employer is
strictly liable for a supervisor’s harassment of an individual whom he or she
supervises. Vance v. Ball State Univ., 

, 2439, 2442 (2013). The
Ellerth/Faragher affirmative defense is an exception and is available to
employers where a plaintiff alleges sexual harassment by a supervisor but does
not claim that the harassment resulted in a tangible employment action. 

has two elements. First, the employer must show that it
exercised reasonable care to prevent and correct sexual harassment. Second,
it must establish that the employee unreasonably failed to take advantage of
preventive or remedial opportunities provided by the employer. See Boh 

. The employer bears the burden of proving both elements by
a preponderance of the evidence. 

that the board did not meet
its burden on the first element.

      The first element focuses on the company’s conduct. The core of the dis-
pute in this case concerns the principle that “[a]n employer can satisfy the first

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                                       No. 15-30871
prong of the Ellerth/Faragher defense by implementing suitable institutional
policies and educational programs regarding sexual harassment.” 

63. 5 Both the harasser’s knowledge of the policy and the victim’s awareness of
it (and of associated complaint procedures) are relevant to whether the
company acted reasonably. 6

       The issue is whether the evidence adduced on summary judgment was
sufficient to demonstrate that the board took reasonable care to prevent sexual
harassment through promulgation of a policy and complaint mechanism. The
cases addressing whether a company has satisfied its burden on the first prong
of the Ellerth/Faragher defense sort into two basic clusters. Where the plaintiff
admits that he or she was on notice of a policy and complaint procedure and
the court determines that the policy was reasonable, we have consistently
found the first prong satisfied. 7 In Boh Bros., however, 

our
en banc court held that the defendant was not entitled to judgment as a matter



       5 Such a policy is not necessary as a matter of law to prevail on the defense, but the
Supreme Court has indicated that it is, in almost all cases, a relevant and important factor
(and, in the instant case, the board does not point to any other preventive measures aside
from its policy and educational programming). 

. Thus, our inquiry
usually focuses heavily on whether the employer promulgated a reasonably specific sexual-
harassment policy and complaint procedure and whether it diligently investigated (and,
where appropriate, remedied) alleged sexual harassment. Boh 

.
       6 See 

–82, 808–09 (noting that defendant had failed to prom-
ulgate its policy such that harassing supervisors were aware of it); Boh 

(examining impact of company’s failure effectively to promulgate a detailed policy on both
harasser’s and victim’s knowledge regarding sexual-harassment policy and complaint
procedures).
       7 See, e.g., Giddens v. Cmty. Educ. Ctrs., Inc., 540 F. App’x 381, 389 (5th Cir. 2013);
Williams v. Barnhill’s Buffet Inc., 290 F. App’x 759, 762–63 (5th Cir. 2008); Lauderdale v.
Tex. Dep’t of Criminal Justice, Institutional Div., 

, 162, 164 (5th Cir. 2007);
Thompson v. Naphcare, Inc., 117 F. App’x 317, 323–24 (5th Cir. 2004); Wyatt v. Hunt Plywood
Co., 

, 410 (5th Cir. 2002); Casiano v. AT&T Corp., 

, 286–87 (5th
Cir. 2000); cf. Williams v. Admin. Review Bd., 

, 478–79 (5th Cir. 2004) (analyzing
Ellerth/Faragher framework in review of Department of Labor Administrative Review
Board’s adjudication of whistleblower retaliation claim under Energy Reorganization Act).
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                                        No. 15-30871
of law (“JML”) on its Ellerth/Faragher defense when it had only a vague and
general antidiscrimination policy without any mention of sexual harassment,
the policy did not specify complaint procedures, and employees were not in-
formed of the policy save for inconspicuous postings that the employees did not
notice or read. And in 

–09, the Court held that an
employer’s failure to promulgate its policy to a given worksite meant that its
defense failed as a matter of law when raised against claims arising at that
worksite.

       Pullen does not cite, and we are not aware of, any other Fifth Circuit
decisions holding that a company’s policy and complaint mechanisms were
unreasonable or that they were not sufficiently publicized to employees for the
company to prevail at summary judgment. But Pullen does refer us to two
closely analogous cases from sister circuits. In Harrison v. Eddy Potash, Inc.,

, 1377 (10th Cir. 1998), the court denied JML where the evidence
indicated that the policy was posted on a bulletin board, but the plaintiff testi-
fied that she was not aware of the policy and had never been given a copy. 8
Similarly, in Marrero v. Goya of Puerto Rico, Inc., 

, 21–22 (1st Cir.
2002), the court denied JML where the company put on evidence that it had
hung posters describing the company sexual-harassment policy, but plaintiffs
and other employees testified that they never received training on the policy,
were not given a copy, and never saw the purported posters. Pullen also points
to a pair of district court cases that reach similar conclusions, 9 and the board


       8  Harrison was initially tried before Ellerth and Faragher were decided; the Tenth
Circuit reversed the judgment in the employer’s favor. See 

, 1451 (10th Cir.
1997). The Supreme Court granted certiorari, vacated, and remanded for reconsideration in
light of its recent decisions in Ellerth and Faragher. 

(1998). On remand, the
circuit held that there were genuine disputes of material fact as to the employer’s entitlement
to immunity under Ellerth and Faragher.
       9   See Wilburn v. Fleet Fin. Grp., Inc., 

, 228–31 (D. Conn. 2001);
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                                     No. 15-30871
does not cite any cases that hold to the contrary on similar facts.

      A review of the summary-judgment evidence reveals that the district
court erred in holding that the board’s efforts to prevent sexual harassment
were reasonable as a matter of law. Pullen produced evidence that, if believed,
would show that employees at the central office were not trained on sexual
harassment, were not informed of the existence of a policy, were not shown
where to find it, and were not told whom to contact regarding sexual harass-
ment. This would be a sufficient basis for a reasonable jury to find that the
company did not take reasonable steps to prevent and remedy sexual
harassment.

      Pullen concedes the existence of the sexual-harassment policy and does
not contend it would have been unreasonable if it had been promulgated and
publicized. She maintains instead that the policy was not sufficiently publi-
cized to allow for summary judgment in the board’s favor. She points to the
following evidence to show that the policy was not sufficiently publicized:

   • Joyce Clemons, a longtime employee who had spent about thirty years
      at the central office in both permanent and substitute capacities, testi-
      fied that she had never been given any information or training about
      sexual harassment.
   • Mary Russell, a secretary in the classified-personnel department (part of
      the HR department) since 2003, testified that she was not given a copy
      of the harassment policy or any training on the subject.
   • Pullen testified that she had never seen the sexual-harassment policy,
      was not aware that it was available online, was not trained on the policy,
      and had not seen it on any bulletin board at the central office. She made



Meng v. Ipanema Shoe Corp., 

, 401 (S.D.N.Y. 1999).
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                              No. 15-30871
   similar claims by affidavit. She further attested that the bulletin board
  nearest her office in purchasing was encased in glass, such that even if
  the policy had been posted thereon, she would have been able to see only
  the first page.
• White testified that temporary employees at the central office were not
   trained on the sexual-harassment policy; that it was posted on several
   bulletin boards at the central office; that looking at the boards was the
   only way that temporary employees could find out about the policy; and
   that temporary employees were not instructed to look at the bulletin
   boards to learn about the policy.
• Annette Dunlap, secretary to the director of classified personnel, served
   in various capacities at the board for sixteen years. She testified that
   she had never spoken about sexual harassment or a sexual-harassment
   policy with anyone from the board and was unaware of any duty to report
   sexual harassment; that she had never had any training about sexual
   harassment; that she had never reviewed the sexual-harassment policy;
   and that she was not aware of any posted copies of it.
• Ebonie Nelson, a permanent employee of the board, indicated that she
   had never been trained on the policy. She further testified that, though
   a paper copy of the policy was posted on an ordinary, non-enclosed bulle-
   tin board in the classified-personnel office, she had never noticed it until
   the day before the deposition. She also said that the policy’s pages were
   yellowing, so she surmised they had been posted for a long time.
• Shari Foreman, who was hired on a permanent basis to replace Pullen
   in the purchasing department, testified that, although she had received
   sexual-harassment training and information in a previous job in one of
   the schools that the board managed, she no longer received any training
   or information about the policy once she started working in purchasing
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                              No. 15-30871
   at the central office.
• Graham—the accused harasser—indicated that he was never directly
   trained about the sexual-harassment policy and never received a copy of
   it but had been to outside training that covered “harassment in the
   workplace” among other topics.

The board responds by referencing record evidence of its own:

• Mary Robinson, the board’s chief of staff, stated, by affidavit, that the
   board maintained a detailed anti-harassment policy that expressly pro-
   hibited sexual harassment.      Further, she explained that the policy
   offered detailed instructions regarding how to assert a complaint, how to
   investigate a complaint, and the like; it also prohibited retaliation. The
   policy was a matter of public record because it was approved by the
   elected board and was available online. Robinson additionally averred
   that the policy was conspicuously posted in the central office. Finally,
   she averred that the board conducted sexual-harassment training for the
  majority of its employees, including supervisors and directors at the
  central office.
• Based on the deposition testimony of Nelson, Joyce Lars, and White, the
  board averred that the evidence indicated that the policy was placed con-
   spicuously on bulletin boards in the central office.
• White testified that the board held sexual-harassment training for many
   of its employees.
• Shari Foreman testified that, when she was working at one of the school
   campuses, she received frequent sexual-harassment training.
• Graham testified that he had received outside training that covered
   “harassment in the workplace.”

   The board also pointed to various pieces of record evidence regarding its
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                                      No. 15-30871
response to Graham’s alleged conduct after Aimee Harris complained. Fur-
ther, the board urges that Pullen’s evidence does not create a fact issue as to
whether the policy was conspicuously posted, because at most the testimony
indicates that certain individuals did not see it. Finally, the board posits that
Pullen’s close acquaintance with Annette Dunlap, secretary to the head of the
HR department, provided her with an avenue to report the misconduct.

       The board’s presentation is insufficient to satisfy its burden to show that
there is no genuine dispute of material fact as to its entitlement to immunity
under the Ellerth/Faragher defense. Similar to the evidence in Faragher, Boh
Bros., Harrison, and Marrero, Pullen presented testimony from employees who
indicated that they were given no training or information about the sexual-
harassment policy and were not even aware of its existence. The evidence,
construed in Pullen’s favor, also shows that Graham was never given a copy of
the policy, never saw it, and was never trained regarding its contents. 10 More-
over, the evidence generates a reasonable inference that the policy was not
posted in a conspicuous location (given that several employees said they had
never noticed it). Thus, just as in Faragher, Boh Bros., Harrison, and Marrero,
there is a genuine dispute of material fact as to whether the board took rea-
sonable steps to prevent sexual harassment in the central office.

       Because the board has not demonstrated its right to summary judgment
on the first element of the Ellerth/Faragher defense, we need not address the
second. The summary judgment as to the period of time in which Graham was


       10 The district court disregarded this testimony on the grounds that Graham also tes-
tified that he had attended training on “harassment in the workplace.” But this is precisely
the sort of conflicting or ambiguous testimony that will not support summary judgment. The
district court’s discussion improperly drew inferences in the board’s favor rather than Pul-
len’s. Even without the thumb on the scale for Pullen, nothing in Graham’s testimony indi-
cates that he received any training at all on sexual harassment—as distinct from other pro-
hibited forms of hostile-environment harassment.
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                                    No. 15-30871
Pullen’s supervisor is reversed.

                                          IV.
      The district court granted summary judgment in favor of the board for
the period of time during which Pullen worked in the HR department. The
court reasoned that Graham was no longer Pullen’s supervisor then, so her
claim for that period should be analyzed under the standard for sexual harass-
ment by a coworker. To hold a company vicariously liable for sexual harass-
ment by a coworker, the plaintiff must show, inter alia, that the employer
“knew or should have known of the harassment in question and failed to take
prompt remedial action.” 11 Because Pullen did not put forth any evidence that
the board knew or should have known about the harassment, the court granted
summary judgment.

      In opposing summary judgment for this period of alleged harassment,
Pullen makes three distinct claims. First, she contends that Graham was still
her supervisor during this period of harassment, and thus she need not
demonstrate that the board knew or should have known of the harassment.
Second, she theorizes that the entire suit must be adjudicated under a
supervisor-harassment standard, because the harassment was one continuous
course of action. Third, she says the harassment was open and obvious, and
therefore the board should have been aware of it. We disagree.

                                           A.
      Graham was not Pullen’s supervisor during the period of time in which
Pullen worked for White in HR. A person is a “supervisor” for purposes of
sexual-harassment law when he or she can take tangible employment action


      11Royal v. CCC & R Tres Arboles, L.L.C., 

, 401 (5th Cir. 2013) (quoting
Hernandez v. Yellow Transp., Inc., 

, 651 (5th Cir. 2012)) (internal quotation
marks omitted).
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                                       No. 15-30871
against the victim. 

–44. A tangible employment
action is a “significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.” 

524 U.S. at 761) (internal quotation marks omitted).
       Our caselaw does not plainly indicate who has the burden of proof to
show that a given person was or was not the plaintiff’s supervisor to trigger
strict liability. But logic dictates that the burden is on the plaintiff. The har-
asser’s status as a supervisor converts a negligence action into an action in
strict liability. In closely analogous contexts—such as products-liability suits
and tort actions in strict liability for injuries suffered from others’ “abnormally
dangerous” activities—it is universally the plaintiff’s burden to establish the
condition that triggers strict liability. 12 In effect, showing that an individual
was the plaintiff’s supervisor is an element of a strict-liability action for sexual
harassment. 13 Pullen has the burden of showing that Graham was her super-
visor during this period.

       In its motion for summary judgment, the board averred that there was
no record evidence that would support a finding that Graham was Pullen’s
supervisor; the board pointed to specific portions of the record that it believed
demonstrated that failure of proof. The burden therefore shifted to Pullen to
point to specific facts in the record that would allow a reasonable factfinder to



       12 Thus, in tort cases, the plaintiff bears the burden of demonstrating that a product
is defective, or an activity is abnormally dangerous, such that strict liability is proper. See,
e.g., Byrd v. Hunt Tool Shipyards, Inc., 

, 47 (5th Cir. Unit A May 1981) (Louisiana
law); Davidson v. Stanadyne, Inc., 

, 1340 (5th Cir. 1983) (Texas law).
       13 See Indest v. Freeman Decorating, Inc., 

, 805 (5th Cir. 1999) (Wiener,
J., concurring); cf. Mack v. Otis Elevator Co., 

, 122 (2d Cir. 2003) (placing burden
on plaintiff to show that the harasser was a supervisor), abrogated on other grounds by 

.
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                                      No. 15-30871
conclude that Graham retained the power to take tangible employment actions
against her after she had left the purchasing department. See Celotex Corp. v.
Catrett, 

, 323 (1986). Pullen’s opposition did not identify any such
facts. Her only statement in response was this paragraph:

       Plaintiff disagrees that she must show the claim for any harassment
    after she left Purchasing around May 29, 2015, is simple co-worker har-
    assment. Graham used his authority to move about the Central Office
    to pursue Pullen and sexually harass her. No simple co-worker could do
    that. Practically, to require a different standard of proof for the later
    harassment would simply confuse a jury as to what liability standard
    should be imposed and would unduly confuse the jury as to what dam-
    ages should be awarded.

       Pullen did not reference any legal authority, or facts in the record, to
support this argument. The district court therefore rejected her “conclusory
statement” and held that Graham was merely a coworker during this period of
alleged harassment. We agree: A person’s ability to move about an office and
converse with those present there does not speak to his or her ability to fire,
promote, demote, or otherwise affect the terms of one’s employment. 14 Because
Pullen did not show the existence of a genuine dispute of material fact as to
whether Graham was her supervisor in the third harassment period, the dis-
trict court was correct to conclude that he was not.

                                            B.
       The district court analyzed the harassment under two distinct
standards—one for the period in which Graham was Pullen’s supervisor and
another for when he was not. Pullen argues that this was error. We disagree.

       It is blackletter law that supervisor harassment generates strict liability


       14On appeal, Pullen broadens her arguments substantially. But because she did not
make those arguments to the district court, they are waived. See Little v. Liquid Air Corp.,

, 1071 n.1 (5th Cir. 1994) (en banc) (per curiam).
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                                 No. 15-30871
and that coworker harassment does not. In the face of this firm principle,
Pullen presented only one theory, unsupported by authority, in the district
court: that using different liability standards for the distinct periods of
harassment would unduly confuse the jury. But Pullen does not explain how
this minor increase in the complexity of the case would so overwhelm a jury as
to justify a substantive modification of the fundamental principles of vicarious
liability in sexual-harassment suits. We therefore reject the argument.

      On appeal, Pullen also cites National Railroad Passenger Corp. v. Mor-
gan, 

, 115 (2002), and Stewart v. Mississippi Transportation Com-
mission, 

, 329 (5th Cir. 2009), for the proposition that hostile-
environment harassment is a single continuing violation. But Pullen did not
present that argument to the district court, so it cannot support her appeal.
See 

n.1. Furthermore, the argument is meritless. The
cited portions of Morgan and Stewart are inapposite—they address only the
timeliness of a hostile-environment claim and have nothing to do with the
correct standard for imputing vicarious liability to an employer.

                                      C.
      Pullen claims the board should have been aware of the harassment be-
cause of its open and obvious character, though conceding that it did not have
actual notice of the harassment until Harris reported it. But Pullen did not
make this argument in the district court—her claim that the board should have
known about the harassment is made for the first time on appeal. We therefore
will not consider it. See 

does not have any properly presented and preserved
argument for why the board knew or should have known about the harass-
ment, she cannot make out a prima facie case under the standard for coworker
sexual harassment. Thus, we affirm the summary judgment for the period of
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                               No. 15-30871
alleged harassment that took place after Pullen had left the purchasing
department.

                                     V.
     In summary, the summary judgment for the board as to the period of
alleged harassment when Pullen worked in the purchasing department is
REVERSED. The summary judgment as to the period of alleged harassment
after Pullen left the HR department is AFFIRMED. The case is REMANDED
for further proceedings. We express no view on the ultimate merits or on what
decisions the court should make on remand. We rule only on the basis of the
summary-judgment record filed in this appeal.




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