           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 26, 2009

                                       No. 08-31139                    Charles R. Fulbruge III
                                                                               Clerk

MONA EGLAND GRIFFIN

                                                   Plaintiff-Appellant
v.

CITGO PETROLEUM CORP

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:07-cv-00790


Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Mona Egland Griffin (“Griffin”) appeals the district
court’s award of summary judgment to Defendant-Appellee Citgo Petroleum
Corporation (“CITGO”) on her claims for sexual harassment and retaliation
under Title VII of the Civil Rights Act of 1964.                Griffin asserts that her
purported supervisor, Matthew Fitzgerald (“Fitzgerald”), engaged in quid pro
quo and/or hostile work environment sexual harassment by seeking sex in
exchange for training opportunities which could lead to a promotion. She also

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                    No. 08-31139

contends that CITGO is liable for her coworkers’ retaliation against her and that
CITGO failed to transfer her to a different position in a timely fashion. Finally,
she claims that the district court erred by granting CITGO’s motion to strike a
transcript of a phone conversation she allegedly had with Fitzgerald before she
had an opportunity to respond to CITGO’s motion. We AFFIRM for essentially
the same reasons that the district court provided in granting summary judgment
to CITGO.
      First, irrespective of CITGO’s challenge to the timeliness of Griffin’s EEOC
Charge of Discrimination, Griffin cannot establish that she suffered a tangible
employment action in the denial of training under the facts of this case. See
Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998); Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 753-54 (1998). She claims that Fitzgerald denied her
training that could lead to a promotion, but it is undisputed that under CITGO’s
collective bargaining agreement, CITGO promoted its employees solely based on
seniority, not training. See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398,
406-07 (5th Cir. 1999) (determining that the plaintiff could not prevail on her
denial of training claim because she could not show that the training would
affect her employment status, benefits, or responsibilities). Thus, Griffin cannot
demonstrate that Fitzgerald’s refusal to train her for the Chief Operator position
constituted a tangible employment action, meaning that she did not suffer quid
pro quo sexual harassment. Accordingly, CITGO may successfully invoke the
Faragher/Ellerth affirmative defense to a hostile environment claim.               See
Casiano v. AT&T Corp., 213 F.3d 278, 284 (5th Cir. 2000) (citing Faragher, 524
U.S. at 808; Ellerth, 524 U.S. at 765).1 The record reveals that CITGO exercised
reasonable care to prevent and correct Fitzgerald’s sexual harassment once



      1
          For this reason, we need not determine whether or not Fitzgerald was actually
Griffin’s supervisor.

                                          2
                                   No. 08-31139

Griffin complained about it and that Griffin failed to avail herself of CITGO’s
preventative or corrective opportunities.
      Second, even if CITGO could be liable for Griffin’s coworkers’ retaliation,
Griffin has not established that CITGO’s management knew of the conduct
before she reported it or that CITGO failed to respond appropriately.            See
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347 (6th Cir. 2008). Indeed,
CITGO initiated an investigation immediately after Griffin complained of
retaliation from her coworkers, and she did not suffer any further retaliation.
Additionally, Griffin asserts that CITGO retaliated by not transferring her to a
different unit in a timely fashion, but the record reveals that CITGO created a
new position for her and transferred her within approximately six months of her
request. Much of the short delay in transferring her stemmed from her lawyer’s
negotiations with CITGO and the creation of this brand new position. Moreover,
under the facts of this case, any purported denial of a lateral transfer did not
affect Griffin’s employment status, benefits, or responsibilities, meaning that it
did not constitute a materially adverse employment action for a claim of
retaliation. See Sabzevari v. Reliable Life Ins. Co., 264 F. App’x 392, 396 (5th
Cir. 2008) (per curiam) (unpublished) (citing Johnson v. Cambridge Indus., Inc.,
325 F.3d 892, 900 (7th Cir. 2003) and Brown v. Brody, 199 F.3d 446, 456 (D.C.
Cir. 1999) (noting that “a purely lateral transfer, that is, a transfer that does not
involve a demotion in form or substance, cannot rise to the level of a materially
adverse employment action” (internal quotation marks omitted))).
      Finally, although the district court erred in granting CITGO’s motion to
strike the transcript before Griffin had a chance to respond, Griffin has failed to
demonstrate how the error was anything but harmless. Cf. O’Hara v. Gen.
Motors Corp., 508 F.3d 753, 764 (5th Cir. 2007) (recognizing a harmless error
exception to the rule that a district court may not sua sponte grant summary
judgment without providing at least ten days’ notice). The district court granted

                                         3
                                  No. 08-31139

the motion to strike because Griffin failed to authenticate the transcript, but the
court still reviewed the evidence and determined that it actually hurt Griffin’s
case. Accordingly, although the court should have waited to rule on CITGO’s
motion to strike until it received Griffin’s response (or the time for a response
expired), this error was harmless.
      In sum, the district court correctly granted summary judgment to CITGO
on all of Griffin’s claims. We therefore AFFIRM.
      AFFIRMED.




                                        4
