### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30530

No. 00-31118

CATHRYN GREEN, Plaint iff-Appellant-Cro ssAppellee,

versus

THE ADMINISTRATORS OF THE TULANE

EDUCATIONAL FUND, Defendant -Appellee-CrossAppellant.

----- -----------------------------------------------------------------------------------------------------------------

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, 5 th 

### Cir., 2002, 284 F.3d 642)

Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.4 T he 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.



### 2 CARL E. STEWART, Circuit Judge:

The defendant-appellee- cro ss-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 Part V of the opinion is withdrawn and the following section is substituted therefor.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 reques t ed that the court be polled on

Rehearing En Banc, (F E D



### . R. A PP



### . P. and 5 TH 

### C IR



### . R. 35) the Petition for Rehea ring 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 inflict s

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 inflict s 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 diminishment5 W e are not persuaded by Tulane’s argument that because this action was tried as a hostile work environment

case, it is entitled to the F aragher/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 appli cable. 213 F.3d at 283-84. C asiano 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. I d. at 284. However, C asiano 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 E llerth

, the Supreme Court

noted that the terms quid pro quo and hostile work environment, while helpful, are not dispositive. E llerth

, 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. I d. at 761-62.

Finally, the Court held that a tangible employment action becomes the act of an employer under Title VII. I d. at 762.

No affirmative defense is available under these circumstances. I d. 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.



### 3 of her job responsibilities, was sufficient to constitute a tangible employment action. E llerth

, 524 U.S.

at 761 (stating that a tangib le employment action has been taken when an individual has been

“reassigned with significant ly different [job] responsibilities”); see also Kocsis v. Multi-Care Mgmt.,

Inc. , 97 F.3d 876, 886 (6th Cir. 1996) (recognizing that “significant ly diminished material

responsibilities” might consti t ut e a tangible employment action but concluding, on the facts of the

case, that the plaint iff 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 Tul ane’s

contentions with regard to the affirmative defense. 5