Robinson v. Blue Cross & Blue Shield of Louisiana

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS September 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30302
Summary Calendar

PATRICIA A. ROBINSON,

Plaintiff-Appellant,

versus

BLUE CROSS AND BLUE SHIELD OF LOUISIANA,

Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of Louisiana
(00-CV-851-B)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Patricia A. Robinson appeals a summary judgment against her

Title VII race discrimination, retaliation, and sexual harassment

claims. The judgment was based on two detailed opinions by the

district court.

Robinson was employed by Blue Cross as Assistant Vice

President of Community Relations. In 2000, because of corporate

restructuring, the title of her position was changed to Director of

*
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that this opinion should not be published and is not precedent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.
Community Relations, but her duties and salary remained the same.

Robinson filed an EEOC charge on 1 May 2000, claiming race and sex

discrimination because of an alleged demotion. She also generally

claimed she was previously demoted. She filed this action in state

court that August. (It was removed to district court.)

Robinson filed a second EEOC charge in May 2001. She claimed

she was retaliated against for filing the first EEOC charge and

this action when she received supporting ratings in her January

evaluation with which she was dissatisfied. None of these ratings

were “unsatisfactory”. Moreover, she received the highest overall

rating possible. Further, after the initial evaluation and before

the filing of the second EEOC charge, her supervisor increased the

supporting category ratings.

In an amended complaint, Robinson added a claim for sexual

harassment by a member of the Board of Directors for various

incidents between 1998 and 2001. Blue Cross first learned of the

sexual harassment claims during a settlement discussion on 9 May

2001, around the time the second EEOC charge was filed. The charge

states the harasser was being interviewed. Subsequently, Blue

Cross instructed the harasser not to communicate with Robinson and

not to attend events where she was present. Further, his Board

position was allowed to expire and he was not reelected. Robinson

asserts Blue Cross failed to appropriately reprimand him.

Finally, Robinson also claimed in her amended complaint that

Blue Cross retaliated against her when it allegedly failed to

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disclose an opportunity to apply for Senior Vice President of

Business Development. Blue Cross eventually hired a black female

for the position. Robinson admitted by deposition testimony that

she lacked the requisite merger and acquisition experience for this

position.

A summary judgment is reviewed de novo. Hall v. Gillman,

Inc., 81 F.3d 35, 36-37 (5th Cir. 1996). Such judgment is proper

if, viewing the facts and all inferences drawn therefrom in the

light most favorable to the non-movant, there is no genuine issue

of material fact and the movant is entitled to a judgment as a

matter of law. Id.; FED. R. CIV. P. 56(c).

Where direct evidence of discrimination is lacking, Title VII

claims are considered under the McDonnell Douglas burden-shifting

framework. Robinson has the initial burden of proving a prima

facie case by preponderance of the evidence. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). If established, the

burden of production shifts to Blue Cross to articulate a

legitimate, nondiscriminatory reason for the employment action.

Id. The burden then shifts back to Robinson to prove those reasons

are pretext. Id.

To establish a prima facie case of discrimination on the basis

of race, Robinson must show: (1) she was demoted; (2) she was

qualified for the position she occupied; (3) she was within a

protected class; and (4) someone outside the protected category

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replaced her. E.g., Crawford v. Formosa Plastics Corp., 234 F.3d

899, 902 (5th Cir. 2000).

Robinson has failed to show she was demoted. Her title

changed, as part of a general corporate restructuring, but her

duties, salary, and benefits were not altered. Even if she were

demoted, Robinson was not replaced by someone outside the protected

class. In fact, 22 individuals had title changes due to the

restructuring. Of these, two were black and one was Hispanic.

To establish a prima facie case for retaliation, Robinson must

show: (1) she was engaged in activity protected by Title VII; (2)

Blue Cross took an adverse employment action against her; and (3)

a causal connection exists between the protected activity and the

adverse employment action. E.g., Haynes v. Pennzoil Oil Co., 207

F.3d 296 299 (5th Cir. 2000).

Regarding her evaluation, Robinson cannot establish this was

an adverse employment action; she received the highest overall

rating possible, and the supporting category ratings were

increased. E.g., Harrington v. Harris, 118 F.3d 359 (5th Cir.

1997) (criticisms are not adverse employment action), cert.

denied, 522 U.S. 1016. As for the claimed failure to disclose the

Senior Vice President of Business Development opening, Robinson has

failed to show she was qualified for that position. She admitted

she had never been involved in planning mergers and acquisitions;

had never dealt with government agencies regarding compliance

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issues; and had never developed a business continuity plan, all

duties the position required.

To establish a prima facie case for sexual harassment,

Robinson must show: (1) she belonged to a protected group; (2) she

was subject to unwelcome harassment based on sex; and (3) which

affected a term, condition, or privilege of her employment Watts

v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). If a prima

facie case is shown, Blue Cross can raise an affirmative defense,

as long as the harassment has not culminated in a tangible

employment action. Faragher v. City of Boca Raton, 524 U.S. 775

(1998). The defense has two elements: “(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”. Id. at 807.

Even assuming Robinson can establish a prima facie case, Blue

Cross has successfully raised the affirmative defense. Robinson

has not shown a tangible employment action because of the

harassment. See Id. (examples of tangible employment actions:

discharge, demotion, or undesirable reassignment). Further, Blue

Cross maintained sexual harassment policies and procedures to

report harassment. Robinson was familiar with these, having

previously worked in human resources, but she failed to use them

until after filing an action against Blue Cross. When Blue Cross

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learned of the sexual harassment, it immediately took remedial

action.

AFFIRMED

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