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Lewis v. City of Shreveport

United States District Court, W.D. Louisiana, Shreveport Division

February 7, 2018

FREDERICK LEWIS, JR.
v.
CITY OF SHREVEPORT

          HORNSBY, MAGISTRATE JUDGE.

          MEMORANDUM RULING

          ELIZABETH ERNY. FOOTE, UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion for summary judgment by Defendant, City of Shreveport ("the City"). [Record Document 14]. The parties have filed an opposition and a reply that have been considered by the undersigned. [Record Documents 19 and 20]. Plaintiff, Frederick Lewis, Jr., alleges that his employer, the City, discriminated against him in hiring, promotion, and compensation on the basis of race and gender in violation of Title VII, on the basis of race in violation of 42 U.S.C. § 1981, and on the basis of age in violation of the Age Discrimination in Employment Act ("the ADEA"). For the reasons discussed below, Defendant's motion for summary judgment is GRANTED.

         I. Background

         A. Factual Background

         Plaintiff is a sixty-eight-year-old African- American male. [Record Documents 1 at 2 and 5-2 at 2]. He began work for the City as a Recreation Supervisor I in the Shreveport Public Assembly and Recreation Department ("SPAR") in June 2006. [Record Documents 1 at 2 and 14-2 at 2]. His initial assignment was to teach computer classes at community centers throughout Shreveport. [Record Documents 14-2 and 2 at 14-3 at 10]. Plaintiff was subsequently promoted to Recreation Supervisor II. [Record Documents 14-2 at 2 and 14-3 at 11 ]. Around that time, he was relocated from one of the community centers to Government Plaza along with his supervisor, Catherine Kennedy ("Kennedy"). [Record Document 14-2 at 2]. While at Government Plaza, Plaintiff was responsible for maintaining SPAR's website and other public outreach duties. [Record Documents 1 at 4 and 14-2 at 2], There are factual disputes regarding Kennedy's precise title and SPAR's organizational structure. Both parties agree that Plaintiff reported to Kennedy. [Record Documents 14-1 at 2 and 19 at 5]. However, Plaintiff contends that after the move to Government Plaza, he received the job title of Public Relations and Marketing Supervisor and was placed in the newly-created Division of Communication Services. [Record Documents 1 at 3 and 14-3 at 11 ]. He explains that Kennedy, who had been the Division Manager of Recreation, became the Division Manager of Communication Services. [Record Documents 1 at 3 and 19 at 8-9]. Conversely, Defendant maintains that there was no Division of Communication Services at SPAR, that Plaintiff never had any job title other than Recreation Supervisor, and that while Kennedy's duties included communications, she retained her position as the Division Manager of Recreation. [Record Document 14-2 at 2-3].

         At some point in late 2011 or 2012, Kennedy moved from the position she then occupied to the position of Division Manager of Event Services. [Record Documents 1 at 4 and 14-2 at 3j. Plaintiff contends that this created an open position of Division Manager of Communication Services. [Record Documents 1 at 4 and 14-3 at 3]. Defendant contends that there never was any such position, that Kennedy moved from Recreation to Event Services, and that her former position as the Division Manager of Recreation was filled by another employee, Nick Roberson. [Record Document 14-2 at 3-4].

         When Kennedy moved to Event Services, Plaintiff approached the Director of SPAR, Shelly Ragle ("Ragle"), about being promoted to a division manager position. [Record Documents 1 at 5 and 14-2 at 3], Plaintiff alleges that this occurred by letter in January 2012; Defendant indicates only that it occurred in 2012. [Record Documents 1 at 5 and 14-2 at 3]. At a meeting, Ragle told Plaintiff that there was no division manager position available. [Record Documents 1 at 5 and 14-2 at 3]. Plaintiff alleges that this meeting did not occur until August 2012, while Defendant indicates that the meeting occurred at some point after Plaintiffs initial inquiry about the division manager position. [Record Documents 1 at 5 and 14-2 at 3]. With Ragle's assistance, Plaintiff transferred to the Department of Community Development on March 21, 2013. [Record Documents 1 at 5-6, 14-2 at 2, and 14-3 at 7].

         In My 2013, Defendant hired Rebecca Berry ("Berry") as the Division Manager of Administration at SPAR. [Record Document 14-2 at 4], Berry is a white woman under the age of forty. [Record Document 14-1 at 3]. The position is non-classified and was not publicly advertised. [Record Document 14-2 at 7]. Defendant alleges that Ragle did not inform Plaintiff of the position because she believed that he lacked the necessary skills, qualifications, and experience to serve as the Division Manager of Administration. [Record Documents 14-2 at 5-6 and 14-3 at 15]. The parties dispute what duties Berry performed as the Division Manager of Administration. Plaintiff has testified on the basis of information relayed to him by other SPAR employees that Berry was performing the same duties that Plaintiff had performed in his former position at SPAR (i.e., website management and public relations). [Record Document 14-3 at 17-19]. Conversely, Defendant avers that Berry's duties were much broader and included budgeting, strategic planning, contract auditing, managing IT projects, and supervising three employees. [Record Document 14-2 at 5].

         After discovering that Berry had been hired as the Division Manager of Administration in December 2014, [Record Document 1 at 9-10], Plaintiff filed a complaint with the City's Human Resources Department on December 22, 2014, [Record Document 7-1 at 7]. After the City found that Ragle had not violated its nondiscrimination policies, Plaintiff filed an EEOC charge on May 12, 2015. [Record Documents 5-3 at 3and 7-1 at 7]. The EEOC rejected Plaintiffs complaint as untimely on April 29, 2016. [Record Document 5-2 at l].[1]

         B. Procedural Background

         Plaintiffs complaint raised various causes of action under Title VII, §1981, and the ADEA as well as for breach of contract under Louisiana law. Defendant moved to dismiss the case under Rule 12(b)(6), arguing that Plaintiffs ADEA and Title VII failure-to-promote claims were barred by the statute of limitations, that Plaintiff failed to adequately plead a § 1981 claim, and that Plaintiff failed to state a state law breach of contract claim. [Record Documents 5 and 5-1]. The Court dismissed Plaintiffs state law claim, but denied Defendant's motion in all other respects. [Record Document 9]. Defendant now brings before the Court a motion for summary judgment on all remaining claims. [Record Document 14].

         II. Analysis

         Plaintiff claims that he was subject to four distinct acts of unlawful discrimination. Although Plaintiffs pleading is not perfectly clear, because he is proceeding pro se, the Court holds him to less stringent standards and interprets his filings generously to identify these four instances. See Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002) (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)). First, he has alleged that failing to hire him as the Division Manager of Administration violated Title VII, § 1981, and the ADEA. Second, he has alleged that failing to promote him to the division manager position vacated by Kennedy violated Title VII, § 1981, and the ADEA. Third, he has alleged that failing to compensate him as well as white employees at the time that he was hired violated Title VII and § 1981. Finally, he has alleged that because he was performing the same duties as Berry but at less than half her salary, he was subject to wage discrimination in violation of Title VII and § 1981.

         A. Standard of Review

         Federal Rule of Civil Procedure 56(a) directs that a 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."[2] Summary judgment is appropriate when the pleadings, answers to interrogatories, admissions, depositions, and affidavits on file indicate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial will rest on the non-moving party, the moving party need not produce evidence to negate the elements of the non-moving party's case; rather, it need only point out the absence of supporting evidence. See Id. at 322-23.

         If the movant satisfies its initial burden of showing that there is no genuine dispute of material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue for dispute at trial by going "beyond the pleadings" and designating specific facts for support. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 325). "This burden is not satisfied with some metaphysical doubt as to the material facts, " by conclusory or unsubstantiated allegations, or by a mere "scintilla of evidence." Id. (internal citations and quotations marks omitted). However, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1985). While not weighing the evidence or evaluating the credibility of witnesses, courts should grant summary judgment where the critical evidence in support of the nonmovant is so weak and tenuous that it could not support a judgment in the nonmovant's favor. Little, 37 F.3d at 1075 (citing Armstrong v. City of Ball, 997 F.2d 62 (5 th Cir. 1993)).

         B. Plaintiffs Summary Judgment Evidence

         As an initial matter, the Court must determine what evidence it may consider when evaluating the instant motion. In support of its motion, Defendant has submitted an affidavit by Ragle and portions of Plaintiffs deposition. [Record Documents 14-2 and 14-3]. Plaintiff has attached a series of emails and other documents to his opposition, [Record Documents 19-1 and 19-2]; his remaining support consists of unsubstantiated assertions in his pleadings, motions, and memoranda.

         Competent summary judgment evidence includes "depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, [and] interrogatory answers." Fed.R.Civ.P. 56(c)(1)(A). A verified complaint may be considered at summary judgment, but because Plaintiffs complaint does not comply with the requirements of Rule 56(c)(4), it does not constitute evidence at this stage. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Similarly, because documents must be authenticated in order for the Court to consider them, the Court cannot give any weight to the unauthenticated documents that Plaintiff attached to his application. See Id. (citing Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991)).

         Therefore, at present there are only two pieces of competent summary judgment evidence: Ragle's affidavit and the portions of Plaintiff s deposition that have been filed into the record. The Court may evaluate any of this evidence, even if the parties have not cited to it, Fed.R.Civ.P. 56(c)(3), but may only consider those portions that would be admissible into evidence at trial, Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995); Duplantis, 948 F.2d at 192 ("Material that is inadmissible will not be considered on a motion for summary judgment because it would not establish a genuine issue of material fact if offered at trial and continuing the action would be useless." (internal quotation marks and citations omitted)). As a result, the Court can give no significance to hearsay statements in deposition testimony. See Fowler, 68 F.3d at 126. Therefore, the Court will evaluate the instant motion in light of Ragle's affidavit and the non-hearsay portions of Plaintiff s deposition.

         C. Failure To Hire Plaintiff as the Division Manager of Administration

         Plaintiff, an African-American male, alleges that by hiring Berry, a white woman, as the Division Manager of Administration, Defendant discriminated against him on the basis of both race and gender. [Record Document 1 at 11-12]. Defendant counters that Plaintiff was unqualified for the position and that Berry's qualifications suited its requirements. [Record Document 14-4 at 10-12].

         1, Title VII Claim

         Title VII provides that an employer may not "fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2OOOe-2(a)(1) (2012). Where, as in the instant case, a plaintiff offers only circumstantial evidence of discrimination, the three-step McDonnell Douglas framework applies.[3] Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-04 (1973). To survive summary judgment in an employment discrimination case, a plaintiff must first establish a prima facie case of discrimination. Manning v. Chevron Chem. Co., 332 F.3d 874, 881 (5th Cir. 2003). If the plaintiff does so, the employer must produce a legitimate, non-discriminatory reason for the challenged employment decision. Haire v. Bd. of Supervisors of La. State Univ. Agric. &Meck Coll., 719 F.3d 356, 362-63 (5th Cir. 2013) (citing Manning, 332 F.3d at 881). If the employer produces such an explanation, the plaintiff must then demonstrate that the employer's reason is pretextual, by showing either that it is "unworthy of credence" or that it was inspired by a discriminatory motive. Id.

         To establish a prima facie failure-to-promote case, a Title VII plaintiff must show that she is a member of a protected class, that she sought and was qualified for an open position, that she was rejected from the position, and that the employer hired a person outside of her class. See McMullin v. Miss. Dep't of Pub. Safety, 782 F.3d 251, 258 (5th Cir. 2015) (citing Williams-Boldware v. Denton Cty., 741 F.3d 635, 643 (5th Cir. 2014)). However, if an employer does not advertise job openings so that employees may apply for promotion, the plaintiff need only show that she would have applied had she known of the open position. Bernard v. Gulf Oil Corp., 841 F.2d 547, 570 (5th Cir. 1988) (citing Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1134 (11th Cir. 1984)).

         Plaintiff is an African-American male and so belongs to a protected class. [Record Documents 14-1 at 1 and 19 at 5]. The Division Manager of Administration position was filled by Berry, a white woman. [Record Document 14-1 at 3]. While Plaintiff did not apply for the position, there is no dispute that he had expressed interest in a promotion to the rank of division manager. [Record Documents 14-2 at 3 and 14-3 at 15]. Similarly, there is no dispute that the position was not advertised and thus that Plaintiff did not have the opportunity to formally apply and be rejected. [Record Documents 14-2 at 6-7 and 14-3 at 15].

         Although Plaintiff need not show that he was more qualified than Berry, he must still show that he was qualified to serve as the Division Manager of Administration. See Bernard, 841 F.2d at 570. Defendant's uncontroverted evidence describes the duties of the Division Manager of Administration: budgeting, strategic planning, auditing outside contracts, managing IT projects, preparing reports using statistical data, and supervising three employees. [Record Document 14-2 at 5]. Ragle indicates that Plaintiff was unqualified for this position because its duties and responsibilities exceeded those of Plaintiff s prior position. [Id. at 5-6]. In response, Plaintiff has failed to demonstrate his own qualifications. In his deposition, he indicates that he took a small number of accounting classes in the 1970s, that he did some general accounting to manage his solo law practice, and that he had experience in education, public relations, and marketing prior to his employment with SPAR. [Record Document 14-3 at 3-4, 8-9]. Plaintiff thus fails to establish that he was qualified for duties such as budgeting, auditing outside contracts, [4] project management, statistical analysis, and supervision of other employees. While Plaintiff asserts that the duties of ...


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