Green v. Admin of Tulane Educ

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30530
No. 00-31118
CATHRYN GREEN, Plaint iff-Appellant-Cross-
Appellee,
versus
THE ADMINISTRATORS OF THE TULANE
EDUCATIONAL FUND, Defendant-Appellee-Cross-
Appellant.
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CATHRYN GREEN, Plaintiff - Appellee,
versus
THE ADMINISTRATORS OF THE TULANE
EDUCATIONAL FUND, ET AL.,
Defendants,
THE ADMINISTRATORS OF THE TULANE
EDUCATIONAL FUND, Defendant - Appellant.
Appeals from the United States District Court
for the Eastern District of Louisiana
April 26, 2002
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion March 15, 2002, 5th Cir., 2002, 284 F.3d 642)
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

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4 The affirmative defense set forth in Faragher and Ellerth is comprised of two necessary 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 or to avoid harm otherwise.” Faragher, 524 U.S. at 805; Ellerth, 524 U.S. at 765.
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CARL E. STEWART, Circuit Judge:
The defendant-appellee-cross-appellant’s (The Administrators of the Tulane Educational
Fund) Petition for Rehearing is DENIED. In denying rehearing, we correct an error found in Part
V of the opinion. Part V of the opinion is withdrawn and the following section is substituted therefor.
In all other respects, the Petition for Panel Rehearing is DENIED. Furthermore, no member of this
panel nor judge in regular active service on the court having requested that the court be polled on
Rehearing En Banc, (FED. R. APP. P. and 5TH CIR. R. 35) the Petition for Rehearing En Banc is
DENIED.
V.
Tulane argues that Green did not demonstrate that a tangible employment action occurred.
As such, it concludes that it is entitled to the affirmative defense set forth in the companion cases of
Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998), and Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 765 (1998).4 Tulane maintains that a “tangible employment action in most cases inflicts
direct economic harm.” Ellerth, 524 U.S. at 762. It concludes that since Green’s demotion did not
inflict economic harm, it cannot be a tangible employment action.
While Tulane is correct that Ellerth acknowledged that in most cases a tangible employment
action inflicts economic harm, the Supreme Court did not state that loss of an economic benefit was
required in all cases. We conclude that Green’s demotion, together with the substantial diminishment

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5 We are not persuaded by Tulane’s argument that because this action was tried as a hostile work environment
case, it is entitled to the Faragher/Ellerth defense under Casiano v. AT&T Corp., 213 F.3d 278 (5th Cir. 2000).
Casiano provides that if a tangible employment action is taken, a case is normally characterized as a quid pro quo claim
and the Faragher/Ellerth defense is not applicable. 213 F.3d at 283-84. Casiano also states that if no tangible
employment action is taken, a case is viewed as a hostile environment claim, and the Faragher/Ellerth defense is
available. Id. at 284. However, Casiano does not address the situation presented in the instant action. Before us today,
we have a case that was tried as a hostile work environment claim but a tangible employment action was proven. We
conclude that, in such a case, a defendant is not entitled to the Faragher/Ellerth defense. In Ellerth, the Supreme Court
noted that the terms quid pro quo and hostile work environment, while helpful, are not dispositive. Ellerth, 425 U.S.
at 751. Instead, the Court focused on when an employ er should be held vicariously liable for the actions of its
supervisory employee. Id. at 753-54. The Court found that when a plaintiff proves a tangible employment action, a
change in the terms or conditions of employment has been established. Id. It further concluded that when such an
action occurs, there is assurance that the injury could not have been inflicted absent an agency relation. Id. at 761-62.
Finally, the Court held that a tangible employment action becomes the act of an employer under Title VII. Id. at 762.
No affirmative defense is available under these circumstances. Id. at 762, 765. Thus, regardless of which theory this
case was tried as, since a tangible employment action was suffered, agency principles are satisfied, and Tulane is not
entitled to the defense.
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of her job responsibilities, was sufficient to constitute a tangible employment action. Ellerth, 524 U.S.
at 761 (stating that a tangible employment action has been taken when an individual has been
“reassigned with significantly different [job] responsibilities”); see also Kocsis v. Multi-Care Mgmt.,
Inc., 97 F.3d 876, 886 (6th Cir. 1996) (recognizing that “significantly diminished material
responsibilities” might constitute a tangible employment action but concluding, on the facts of the
case, that the plaintiff could not show a tangible employment action where she failed to show that her
duties were “materially modified”). Once a tangible employment action has been found, an employer
is not entitled to the Faragher/Ellerth defense. Therefore, we do not need to address Tulane’s
contentions with regard to the affirmative defense.5

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