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that this opinion should not be published and is not precedent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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