United States District Court, E.D. Louisiana
KURT D. ENGELHARDT, District Judge.
Now before the Court is Defendant's Motion for Summary Judgment (Rec. Doc. 61). Plaintiff filed a response in opposition (Rec. Doc. 65), and Defendant filed a reply (Rec. Doc. 75).
For the reasons stated herein, IT IS ORDERED that Defendant's Motion (Rec. Doc. 61) is hereby GRANTED.
Plaintiff, Valerie Smith, is an African American female and is 45 years of age. (Rec. Doc. 65 at p. 1). Plaintiff began working for Defendant, Home Depot U.S.A., Inc. ("Home Depot"), in 2001. ( Id. ). Plaintiff has held the following positions with Defendant: cashier, return clerk, freight team member, plumbing associate, receiving clerk, front end supervisor, and electrical supervisor, among others. ( Id. ). In 2007, Plaintiff became Front End Supervisor of Store 365 in Slidell, Louisiana. (Rec. Doc. 61 at p. 2). Sometime between 2009 and 2010, Plaintiff took and passed the Retail Management Assessment ("RMA"), the test required to be promoted to a management position with Defendant. ( Compare Rec. Doc. 61 at p. 3 and Rec. Doc. 65 at p. 1). However, the RMA scores expire after two years. (Rec. Doc. 65 at p.2). Accordingly, Plaintiff retook and, again, passed the RMA in June 2012. ( Id. ). Also in June 2012, Plaintiff inquired about an Assistant Store Manager ("ASM") position at the Laplace store. (Rec. Doc. 61-1 at p. 4). Plaintiff interviewed for the Laplace position on July 2, 2012, but she did not receive an offer for the position. (Rec. Doc. 65 at p. 3). Instead, the position was filled by Jacqueline Bourg, a Caucasian female, 34 years of age, who was an ASM at another store within the district prior to taking the Laplace position. (Rec. Doc. 61-1 at p. 11).
Sometime between February and March of 2013, Plaintiff also interviewed for a position as the Merchandising ASM at the Picayune store. (Rec. Doc. 65 at p. 5; Rec. Doc. 61-1 at p. 4). The position was ultimately offered to Clint Charles. In September 2013, Plaintiff became aware of a position, for which she did not apply and was not offered to interview, at the Covington store that was eventually filled by Louis Depascaul, a Caucasian male. (Rec. Doc. 65 at p. 5, 14).
On June 7, 2012, Plaintiff called, and allegedly emailed thereafter, AACG, Home Depot's Human Resource call center, to complain that she had not been promoted and that her supervisor, Scott Corry, a Caucasian male, threatened to transfer her to Millwork, a separate department within the Slidell store. ( Id. at p.3) In addition, on July 6, 2012, Plaintiff called AACG to complain about not being promoted. ( Id. ). On September 29, 2012, Plaintiff again called AACG with complaints. ( Id. ). In October 2012, Plaintiff filed a charge with the EEOC for discrimination, hostile work environment, and retaliation. On November 17, 2013, Plaintiff filed the instant suit. The following day, on November 18, 2015, she was transferred to serve as the Electrical Department Supervisor for the Slidell store. ( Id.; Rec. Doc. 61-1 at p. 6).
II. Summary Judgment Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). The materiality of facts is determined by the substantive law's identification of which facts are critical and which facts are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Id.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its summary judgment burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986); see also Lavespere v. Liberty Mut. Ins. Co., 910 F.2d 167, 178 (5th Cir. 1990). Once the moving party carries its burden pursuant to Rule 56(a), the nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2553; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Auguster v. Vermillion Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001).
When considering a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002), and draws all reasonable inferences in favor of that party. Hunt v. Rapides Healthcare System, L.L.C., 277 F.3d 757, 764 (2001). Factual controversies are to be resolved in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (citations omitted). The Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." See id. (emphasis in original) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)).
Although the Court is to consider the full record in ruling on a motion for summary judgment, Rule 56 does not obligate it to search for evidence to support a party's opposition to summary judgment. See Fed.R.Civ.P. 56(c)(3)("court need consider only the cited materials"); Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003)("When evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court."). Thus, the nonmoving party should "identify specific evidence in the record, and articulate" precisely how that evidence supports his claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195 (1994).
The nonmovant's burden of demonstrating a genuine issue is not satisfied merely by creating "some metaphysical doubt as to the material facts, " "by conclusory allegations, " by "unsubstantiated assertions, " or "by only a scintilla of evidence." Little, 37 F.3d at 1075. Rather, a factual dispute precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for the nonmoving party. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002).
III. Application of the Legal Standard
In this case, Plaintiff has alleged age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 62, race and gender discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, Louisiana state law equivalents of the ADEA and Title VII, retaliation in violation of both Title VII and the ADEA, negligence, hostile work environment in violation of Title VII, and intentional infliction of emotional distress. The Court addresses these claims in order.
A. Discrimination in Violation of the ADEA and Title VII
In an employment discrimination case, a plaintiff may present either direct or circumstantial evidence to prove her claim. Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir.2000). Direct evidence is evidence that proves the fact of discriminatory animus without inference or presumption. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002). If the plaintiff can identify direct evidence of discrimination, the burden shifts to the defendant to establish that the employment decision in question would have occurred regardless of the "forbidden factor." Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993) (internal citations omitted). Absent direct evidence of discriminatory conduct, however, the plaintiff must demonstrate, pursuant to the burden shifting frame work found in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that: (1) she was in the protected class; (2) she was qualified for the position; (3) she suffered adverse employment action; and (4) she was replaced by someone outside of the protected class or treated less favorably than similarly situated employees. See, e.g., Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (applying McDonnell Douglas to the ADEA); Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001) (application of the McDonnell Douglas frame work to Title VII claims). If the plaintiff can establish the elements listed above, the burden will shift to the defendant to show a legitimate, non-discriminatory purpose for termination. Id. To succeed in proving her claims, however, the plaintiff is entitled to show that any non-discriminatory purposes offered by the defendant are merely a pretext for discrimination by presenting evidence of disparate treatment or demonstrating that the proffered explanation is false. Id. A showing that the unsuccessful employee was "clearly better qualified, " as opposed to merely better or as qualified, than the employee selected will be sufficient to prove that the employer's proffered reasons are pretext. EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir.1995).
As an initial matter, contrary to Plaintiff's contentions contained in her brief in opposition (Rec. Doc. 65 at p. 8-10), the Court does not find any direct evidence of age, racial, or sexual discrimination. Plaintiff misses the point that direct evidence is evidence that shows animus without inference. In fact, Plaintiff relies primarily on unsubstantiated claims of Home Depot's "undocumented and unspoken" policies, which allegedly resulted in discrimination. The Court has not been presented with any evidence demonstrating discriminatory intent without inference or presumption. Accordingly, the Court must proceed with its analysis under the McDonnell Douglas framework.
1. Failure to Promote
First, Plaintiff alleges violations of the ADEA and Title VII in connection with three potential promotions to ASM positions at the Laplace, Picayune, and Covington stores, as well as discrimination in the training for promotional opportunities. (Rec. Doc. 65 at p. 10-13.).
Absent direct evidence, the McDonnell Douglas burden-shifting framework applies. Moss, 610 F.3d at 922. To make a prima facie case for failure to promote, Plaintiff must show she: "(1)  was over forty [(40)], (2) was qualified for the position sought, (3) was not promoted, and (4) the position was filled by someone younger or the failure to promote was due to [her] age. Tratree v. BP N. Am. Pipelines, Inc., 277 F.Appx. 390, 395 (5th Cir. 2008). "To establish a disparate-treatment claim under the plain language of the ADEA... a plaintiff must prove that age was the butfor' cause of the employer's adverse decision." Kean v. Jack Henry & Associates, Inc., 577 F.Appx. 342, 350 (5th Cir. 2014) (internal citation omitted). Home Depot does not dispute that the first three elements are satisfied.
Significantly, it appears Plaintiff has effectively withdrawn her age discrimination claim concerning each of the three positions in question. Plaintiff does not attempt to argue nor does she provide any evidence that the Laplace, Picayune, and Covington positions were filled by younger persons outside of the protected class; additionally, Plaintiff conspicuously omits any evidence that her failure to receive the promotions in question were due to her age. The only evidence the Court can find concerning the ages of the three individuals who ultimately received the positions is contained in Home Depot's briefing. However, the sole individual who is in fact younger than Plaintiff, based on the evidence in the record, is Ms. Bourg, who received the ASM position at the Laplace store. The evidence shows that Mr. Charles, the recipient of the position at the Picayune store, is actually older than Plaintiff. (Rec. Doc. 61-1 at p. 14). Plaintiff does not argue, and presumably does not know, the age of Mr. Depascaul. Therefore, Plaintiff has not made out a prima facie case for age discrimination because she has not satisfied the fourth element of her claim. Plaintiff has not offered any evidence showing that the positions sought were filled by a younger person or the failure to promote was due to her age. Alternatively, even if this Court were to accept that Plaintiff had established the fourth element as applied to either the Laplace or Covington positions, she has not shown any evidence that the alleged reasons for hiring Ms. Bourg and Mr. Depascaul are pretextual.
Home Depot asserts that it did not promote any one of the three applicants to the Laplace position because all of the applicants, including Plaintiff, lived too far away. Assuming Plaintiff, and not Defendant, presented evidence of Ms. Bourg's age, Plaintiff ultimately fails to show any evidence indicating that Home Depot's explanation was pretextual as required under McDonnell Douglas. Notably, Plaintiff does not argue that she was clearly better qualified than Ms. Bourg. In fact, Ms. Bourg was already serving as ASM at another store within the district, and was not actually promoted, but transferred, to the Laplace position. Additionally, Plaintiff does not argue that Defendant's failure to promote was in any way a result of Plaintiff's age. Viewing all inferences in Plaintiff's favor, the Court cannot find any other evidence that would even tend to show the reasons proffered by Home Depot relating to the decision to hire Ms. Bourg were false or that Plaintiff suffered disparate treatment.
Finally, assuming Plaintiff had proved Mr. Depascaul's age or that her age was the but-for cause of the failure to promote, she fails to point to any credible evidence of pretext in connection with the Covington position. Plaintiff argues that she was more qualified than Mr. Depascaul because she "was considered the best" front-end/operations supervisor. (Rec. Doc. 65 at p. 13). However, after reviewing the record, the Court does not find any evidence that Plaintiff was clearly better qualified for the position than was Mr. Depascaul. In fact, Plaintiff mischaracterizes Mr. Corry's deposition testimony. Mr. Corry did not say that Plaintiff was the best front-end/operations supervisor, but that she was "high performing." (Rec. Doc. 65-4 at p. 9, Corry Deposition p. 34). Such an assertion does not sufficiently demonstrate disparate treatment or falsity of Home Depot's proffered nondiscriminatory reasons. Significantly, Plaintiff does not offer any other ...