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Stephens v. The Board of Supervisors of University of Louisiana System

United States District Court, E.D. Louisiana

December 27, 2017

IRMA STEPHENS, Plaintiff
v.
THE BOARD OF SUPERVISORS OF THE UNIVERSITY OF LOUISIANA SYSTEM, Defendant

         SECTION "E" (5)

          ORDER AND REASONS

          SUSIE MOHI AN UNITED STATES DISTRICT JUDGE.

         Before the Court is the Defendant's Motion for Summary Judgment.[1] The Plaintiff opposes this motion.[2] For the following reasons, the Defendant's Motion for Summary Judgment is DENIED.

         BACKGROUND

         Plaintiff, Irma Stephens, filed her initial complaint in this Court on May 23, 2016.[3]Plaintiff is an African-American woman who alleges she was subject to racial discrimination, race-based harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and Louisiana state law while she was employed by the Defendant as a custodian. Plaintiff further alleges that the Defendant retaliated against her as a result of her filing a grievance with her employer and a charge of discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”).

         On May 5, 2014, Plaintiff filed a grievance with her employer, the Defendant, alleging she was being subjected to discrimination on account of her race. On or about April 2, 2015, Plaintiff filed a charge with the EEOC alleging she was being subjected to racial discrimination and race based harassment and was being retaliated against for her filing of her May 5, 2014 grievance.

         On August 16, 2017, during a pretrial conference held in chambers, counsel for the Plaintiff notified the Court that Plaintiff has withdrawn her claims for discrimination and race-based harassment under Title VII and Louisiana law.[4] The Plaintiff's claims for racial discrimination and hostile work environment under Title VII and Louisiana law are dismissed with prejudice.

         LEGAL STANDARD

         Summary judgment is appropriate only “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.”[5] “An issue is material if its resolution could affect the outcome of the action.”[6]When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.”[7] All reasonable inferences are drawn in favor of the nonmoving party.[8]There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.[9]

         If the dispositive issue is one on which the moving party will bear the burden of persuasion at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.'”[10] If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the nonmoving party to direct the Court's attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.[11]

         If the dispositive issue is one on which the nonmoving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the nonmovant's claim, or (2) demonstrating there is no evidence in the record to establish an essential element of the nonmovant's claim.[12] When proceeding under the first option, if the nonmoving party cannot muster sufficient evidence to dispute the movant's contention that there are no disputed facts, a trial would be useless, and the moving party is entitled to summary judgment as a matter of law.[13] When, however, the movant is proceeding under the second option and is seeking summary judgment on the ground that the nonmovant has no evidence to establish an essential element of the claim, the nonmoving party may defeat a motion for summary judgment by “calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”[14] Under either scenario, the burden then shifts back to the movant to demonstrate the inadequacy of the evidence relied upon by the nonmovant.[15] If the movant meets this burden, “the burden of production shifts [back again] to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”[16] “Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial.”[17]

         “[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports the claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'”[18]

         LAW AND ANALYSIS

         Title VII “forbids retaliation by employers against employees who report workplace race or gender discrimination.”[19] Title VII retaliation claims are analyzed under a modified McDonnell Douglas burden-shifting approach.[20] Under this approach, if the plaintiff demonstrates a prima facie case of retaliation, the burden then shifts to the defendant to articulate a legitimate, non-retaliatory reason for its decision not to promote the plaintiff.[21] If such a showing is made, the burden shifts back to the plaintiff to establish that the employer's proffered reason is a “pretext for the actual retaliatory reason.”[22]

         During the August 16, 2017 pretrial conference, counsel for Plaintiff confirmed that her only remaining claim is for retaliation in violation of Title VII and Louisiana law.[23] Counsel for the Plaintiff also acknowledged that each of the individual acts she has alleged may not, alone, qualify as a material adverse retaliatory action. Instead, counsel represented Plaintiff's argument is that the continuous nature of the alleged retaliatory acts collectively make the alleged retaliation materially adverse.

         During the August 16, 2017 pretrial conference, counsel for Plaintiff confirmed that her retaliation claim is based on the following events: (1) an adverse performance evaluation issued by the Plaintiff's supervisor Joan Gunter on August 14, 2014; (2) a reprimand issued on September 5, 2014 for using a printer to make personal copies; (3) a reprimand issued on October 6, 2014 for not accurately timing how long it takes for the floors to dry in the bathroom; (4) a pre-disciplinary notice for allegedly being disrespectful to two employees who worked with the Livingston Parish School System on January 6, 2015; (5) a reprimand issued on September 21, 2016 for alleged “rudeness” to University guests; (6) a reprimand issued on October 3, 2016 for not frequently emptying the trash; and (7) Plaintiff's reassignment to the Hammond, Louisiana campus on October 7, 2016.[24]

         I. Scope of Plaintiff's Retaliation Claim

         A plaintiff may not pursue Title VII claims in federal court unless she has exhausted all of the available administrative remedies.[25] “Exhaustion occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice of right to sue.”[26]

         Typically, under Title VII, a plaintiff must exhaust all of the claims alleged in her complaint by filing a charge with the EEOC and receiving a right to sue letter. Pursuant to Title VII, a charge is timely when it is filed with the EEOC within 180 days of the alleged illegal conduct.[27] However, because Louisiana is a “deferral” state, the filing period is extended to 300 days.[28] With respect to the alleged retaliatory events occurring before the Plaintiff filed her charge with the EEOC on April 2, 2015, events occurring prior to June 6, 2014 may not be considered part of Plaintiff's retaliation claim.[29]

         With respect to the alleged retaliatory events occurring after the Plaintiff filed her charge with the EEOC, the Fifth Circuit, in Gupta v. East Texas State University, explained an exception to the rule requiring exhaustion of administrative remedies that allows a plaintiff to pursue an unexhausted retaliation claim if the acts underlying the retaliation claim came after and in response to the filed EEOC charge.[30] Under the Gupta exception, Plaintiff is not required to exhaust her claims with respect to actions she alleges occurred after and in retaliation to her filing her charge with the EEOC.

         Accordingly, the Plaintiff is considered to have exhausted her remedies with respect to all retaliatory events alleged in Plaintiff's Complaint, [31] First Amended Complaint, [32] and Second Amended Complaint.[33]

         II. Plaintiff's Prima Facie Case

         To establish a prima facie case of retaliation, a plaintiff must show that (1) she participated in a Title VII protected activity, (2) she suffered an adverse employment action by her employer, and (3) there is a causal connection between the protected activity and the adverse action.”[34]

         The Defendant, in its Motion for Summary Judgment, specifically argues that it is entitled to summary judgment on the Plaintiff's retaliation claim because she cannot prove that she suffered an adverse employment action.[35]

         a. Plaintiff Participated in a Protected Activity

         Defendant does not dispute that the Plaintiff participated in an activity protected by Title VII. “Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII.”[36] Plaintiff participated in two separate protected activities under Title VII. Plaintiff first participated in a protected activity on May 5, 2014 when she filed her formal grievance with her employer regarding discriminatory actions she believed were motivated by race. Plaintiff also participated in a protected activity on April 2, 2015 when she filed her formal charge with the EEOC.

         b. Whether Plaintiff Suffered an Adverse Employment Action

         The Defendant argues it is entitled to summary judgment because the Plaintiff cannot prove that she suffered an adverse employment action.[37] For an employment action to constitute prohibited discrimination, the action must be “materially adverse, ” meaning that it would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.”[38] The Supreme Court established this objective standard “to separate significant from trivial harms” and “filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”[39]

         In Stewart v. Mississippi Transportation Commission, for example, the Fifth Circuit determined that, as a matter of law, having personal items taken from your desk, having the locks on your office door changed and being chastised by superiors and ostracized by co-workers “do not rise to the level of material adversity but instead fall into the category of ‘petty slights, minor annoyances, and simple lack of good manners' that the Supreme Court has recognized are not actionable retaliatory conduct.”[40] However, employer actions such as demotion, denial of a pay increase, and failure to promote, are materially adverse employment actions.[41] The Fifth Circuit has also noted that the imposition of a heavier workload may constitute an adverse employment action.[42] “Whether a particular reassignment is materially adverse depends on the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all circumstances.”[43]

         Plaintiff argues the following are materially adverse employment actions: (1) an adverse performance evaluation issued by the Plaintiff's supervisor Joan Gunter on August 14, 2014; (2) a reprimand issued on September 5, 2014 for using a printer to make personal copies; (3) a reprimand issued on October 6, 2014 for not accurately timing how long it takes for the floors to dry in the bathroom; (4) a pre-disciplinary notice for allegedly being disrespectful to two employees who worked with the Livingston Parish School System on January 6, 2015; (5) a reprimand issued on September 21, 2016 for alleged “rudeness” to University guests; (6) a reprimand issued on October 3, 2016 for not frequently emptying the trash; and (7) Plaintiff's reassignment to the Hammond, Louisiana campus on October 7, 2016.[44] The Court finds that these adverse actions collectively are sufficient to deter a reasonable person from exercising activities protected by Title VII.[45]

         c. Whether There is a Causal Connection Between Plaintiff's Protected Activities and Alleged Retaliation

         In University of Texas South Western Medical Center v. Nassar, the Supreme Court held that Title VII retaliation claims must be proved according to traditional principles of but-for causation.[46] “This heightened standard ‘requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.'”[47]

         There is some disagreement, however, “among the circuits regarding whether the Supreme Court's holding in [Nassar] requires a plaintiff to show but-for causation as part of her prima facie case of retaliation, or only at the third step of the McDonnell Douglas framework to rebut an employer's legitimate stated reason for the adverse employment action.”[48] In Smith v. Board of Supervisors of Southern University, the Fifth Circuit declined to resolve this issue after reasoning that even applying the standard most favorable to the plaintiff, the plaintiff still failed to meet her burden.[49] This Court also declines to resolve this issue as Plaintiff's retaliation claims survive regardless of whether the Plaintiff is required to make a showing of but-for causation in her prima facie case or at step three of the McDonnell Douglas framework.

         In cases with “[c]lose timing between an employee's protected activity and an adverse action against [her], ” a plaintiff may satisfy the causation requirement of her prima facie case through the evidence of close proximity alone.[50] Plaintiff argues that she received her first negative performance evaluation on August 14, 2014.[51] This first negative performance evaluation was issued only three months after she filed a grievance with her employer. The Fifth Circuit “has found that ‘a time lapse of up to four months' may be sufficiently close” for the purpose of establishing the causal requirement of a Plaintiff's prima facie retaliation case[52]

         In this case, the close proximity in time between the Plaintiff's participation in a protected activity and the first of the collective adverse employment actions is sufficient to satisfy the Plaintiff's burden of establish a prima facie case of illegal retaliation.

         III. Defendant's Non-Retaliatory Reasons for the ...


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