United States District Court, W.D. Louisiana, Shreveport Division
FREDERICK LEWIS, JR.
CITY OF SHREVEPORT
HORNSBY, MAGISTRATE JUDGE.
ELIZABETH ERNY. FOOTE, UNITED STATES DISTRICT JUDGE.
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
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].
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].
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].
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].
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].
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
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.
Standard of Review
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." 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
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)).
Plaintiffs Summary Judgment Evidence
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.
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)).
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.
Failure To Hire Plaintiff as the Division Manager of
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].
Title VII Claim
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. 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.
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)).
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].
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,  project management, statistical analysis,
and supervision of other employees. While Plaintiff asserts
that the duties of ...