United States District Court, E.D. Louisiana
ORDER AND REASONS
HELEN G. BERRIGAN, District Judge.
This matter comes before the Court on motion for summary judgment filed by the defendants, Sewerage & Water Board of New Orleans and Marcia St. Martin (collectively "S&WB"). Rec. Doc. 50. Having considered the memoranda of counsel, the record and the law, the Court finds that summary judgment should be partially granted and partially denied for the following reasons.
The plaintiff, Cassandra Jones ("Jones"), filed this suit under Title VII alleging discrimination based on gender and retaliation on the part of her then-and-current employer, S&WB. She was represented by counsel at the time she filed a questionnaire with the EEOC on July 20, 2012, and a charge with the EEOC on November 12, 2012. Rec. Docs. 50-4 at 1-2, 50-5 at 3-8. According to her charge, Jones claims sex discrimination and retaliation between September 19, 2011 and October 11, 2011, when she "was harrassed by Steam Plant Engineers, assigned/reassigned to a position which caused [her] to lose OT pay and shift-pay (differential) as well as treatment different than others." Rec. Doc. 50-4 at 1. Jones states in the charge that she was told by a Damon Adams, a S&WB supervisor, that she "was too short, weak, and a woman" to do the job of a Pumping Plant Operator ("PPO"), and she states that "a year ago, a former employee was allowed to perform the same job under the same circumstances." Rec. Doc. 50-4 at 1. Both claims allegedly arose after she was transferred from her previous position as a Boiler Room Operator ("BPO") to train as a PPO at the Old River Station, and subsequently transferred back to her position as a BPO.
The court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). An issue is material if its resolution could affect the outcome of the action, and a genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2502, 2510, 91 L.Ed.2d 202 (1986); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408-09 (5th Cir. 2002). When considering a motion for summary judgment, "the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009). Summary judgment cannot be defeated by "conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.'" Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party meets its initial burden, the burden shifts to the non-moving party "to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24).
It is undisputed that during training Jones was unable to perform one of the tasks required of a PPO without standing on a box and never received the PPO designation, although she did work at the Old River Station for over a year before filing a grievance with the S&WB and being transferred back to her position as a BPO. Jones admits that she was told by S&WB supervisors that using the box was unsafe. Rec. Docs. 50-5 at 6, 56-3 at 13. It also appears that the use of ladders and boxes by a BPO in the boiler room is not considered unsafe and that the plaintiff is allowed to use them there. Rec. Doc. 56-3 at 26-27. It is undisputed that both BPO and PPO positions pay the same salary and that Jones remains employed as a BPO. Rec. Doc. 56-3 at 17.
The defendants move for summary judgment based on a number of arguments: that the EEOC charge is untimely, that Jones did not allege continuing or constructive discharge in her EEOC charge, that Jones can not establish a prima facie case of sex discrimination or retaliation, and that, in any event, the S&WB can establish nondiscriminatory safety reasons for her failure to obtain the PPO designation. The S&WB also argues that the transfer back to the BPO position was not adverse because her pay is the same. Rec. Doc. 50-3. In opposition, the Jones provides an array of arguments, nearly all of which are supported solely by her statements provided to the EEOC or in deposition. Those statements are often unclear, confusing or contradictory, while many of the background and factual statements contained in the defense memorandum are not supported by any proof.
Timeliness, continuing discrimation and constructive discharge
With regard to timeliness, the plaintiff argues that her EEOC questionnaire qualifies as a charge. The Court agrees with the plaintiff on this issue, and notes that the plaintiff checked one box on the questionnaire indicating "I want to file a charge of discrimination..." underneath the section identifying her attorney. Rec. Doc. 50-5 at 6. The Court finds that the EEOC charge is timely filed by virtue of the earlier filing of the questionnaire.
At the same time, the plaintiff did not make a continuing discrimination claim in her charge, nor does she present argument relative thereto in her opposition. The Court finds that any claim for continuing discrimination has not been properly presented.
Jones argues constructive discharge is based on the unadorned argument that the PPO position was a promotion. Rec. Doc. 55-1 at 7-8. Although mentioned in the complaint, constructive discharge is not mentioned in any filing with the EEOC. Again, in construing the plaintiff's claims, the Court is mindful that the plaintiff admitted in the questionnaire that she was represented by counsel at that relevant time. Rec. Doc. 50-5 at 6. Constructive discharge requires proof that the employees working conditions were so intolerable that a reasonable employee would feel compelled to resign. Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir. 2011). The plaintiff must show "a greater severity or pervasiveness or harassment thatn the minimum required to prove a hostile work environment.'" Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998). The following events are considered relevant to a finding of constructive discharge: demotion, reduction in salary, reduction in job responsibility, reassignment to menial or degrading work, reassignment to work under a younger supervisor, badgering harassment, or humilation by employer calculated to encourage the employee's resignation or offers of early retirement or continued employment on terms less favorable than the employee's former status. Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2011). Here, the plaintiff, represented by counsel, has produced no relevant proof and, in any event, the plaintiff continues to be employed by the S&WB at the same pay as the PPO position provides.
Title VII Sex Discrimination Claim
A plaintiff can prove intentional discrimination under Title VII with either direct or circumstantial evidence of intentional discrimination. Laxton v. Gap Inc., 333 F.#d 572, 578 (5th Cir. 2003). Where circumstantial evidence is used, the three-part framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), applies. Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. ...