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Farmer v. Mouton

United States District Court, E.D. Louisiana

February 28, 2018




         This is an employment discrimination action brought by plaintiff, April Farmer (“Farmer”), against her former employer, the Louisiana State Board of Medical Examiners (the “Board”), and the Board's Executive Director and Director of Investigations, Dr. Cecilia Mouton (“Mouton”), in her individual and official capacities. Farmer asserts claims of race discrimination, hostile work environment, constructive discharge and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983.[1] She seeks compensatory and punitive damages and injunctive relief. Complaint, Record Doc. No. 1. This matter was referred to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 20.

         Defendants filed a timely motion for summary judgment, supported by an affidavit, verified documents and deposition excerpts. Record Doc. No. 42. The motion seeks dismissal of all of plaintiff's remaining claims on several grounds. Farmer filed a timely opposition memorandum, Record Doc. No. 49, with supporting exhibits. Plaintiff asserts that genuine issues of material fact exist as to each of her claims. Record Doc. No. 49 at pp. 18, 19 and 23-25.

         Having considered the complaint, the record, the arguments of the parties and the applicable law, IT IS ORDERED that defendants' motion for summary judgment is GRANTED for the following reasons.


         The following material facts are accepted as undisputed solely for purposes of the pending motion for summary judgment. The facts are drawn from the parties' statements of fact and exhibits, especially Farmer's and Mouton's deposition testimony and the sworn affidavit in the record.

         Farmer began working at the Board in December 2007 as a Licensing Analyst 1. Record Doc. Nos. 42-14 at ¶ 1 and 49-11 at ¶ 42. She was promoted to the position of Licensing Analyst 2 in November 2008 and retained that job title when she was laterally transferred to a position in the Board's accounting department in August 2012. Id. 42-14 at ¶¶ 2-3 and 49-11 at ¶ 48.

         Farmer testified that she applied through Civil Service, which is a separate entity from the Board, for three compliance investigator positions, which opened in 2013. Id. 42-14 at ¶ 15 and 49-11 at ¶¶ 49-50. She testified that three women were hired into those open investigator positions. Record Doc. No. 49-1 at p. 9 (Farmer's deposition p. 31, lines 23-24). Farmer is an African American woman; the three women who were hired, Leslie Rye, Cathy Storm and Virginia Madere, are Caucasian women. Record Doc. No. 49-11 at ¶¶ 43 and 51.

         Rye was hired by the Board in August 2009. Record Doc. No. 42-3 at ¶ 2. Rye is a registered nurse. Record Doc. No. 42-14 at ¶ 6. Storm transferred to the Board from another state agency in March 2013. Record Doc. No. 42-3 at ¶ 4. Storm is also a registered nurse. Record Doc. No. 42-14 at ¶ 11. The Board hired Madere for the position of Compliance Investigator 2 in June 2014. Record Doc. No. 42-3 at ¶ 6. Farmer testified that she received an email from Civil Service stating that she was not qualified for the position that Madere was hired to fill. Record Doc. No. 49-1 at p. 10 (deposition p. 35, lines 14-15). Plaintiff contends that she did not receive any direct communication from Civil Service concerning her qualification for Rye's or Storm's positions, but that she was told by a Board employee that she did not qualify for those positions. Id. at deposition p. 34, lines 5-9. She testified that she did not send an appeal to Civil Service concerning its hiring decisions. Id. at deposition p. 36, lines 11-14.

         A Compliance Investigator 2 “[c]onducts investigations on violations regarding Board/Agency policies, state and federal statutes, Civil Service rules, licensure and/or ethics.” Record Doc. Nos. 49-4 at p. 17 and 49-11 at ¶ 12. Civil Service's listed minimum qualification requirements for the position of Compliance Investigator 2 include a baccalaureate degree plus one year of professional experience in the following: accounting or financial auditing; program auditing; building inspection; administrative services; internal affairs investigation; investigatory work; law enforcement; legal research; real estate investigation; real estate appraisal; or in the issuance or recommendation of the issuance of medical related licenses. Id. 49-4 at p. 18 and 49-11 at ¶¶ 12-13. Six years of work experience or a combination of work experience and college credit could be substituted for the baccalaureate degree requirement. Id. 49-4 at p. 19.

         Farmer's educational background consists of two degrees in criminal justice - one a bachelor of science and the other an associate degree - and a paralegal certificate. Record Doc. Nos. 49-1 at p. 15 (deposition p. 57, lines 7-10) and 49-11 at ¶¶ 44 and 56. Plaintiff admitted in her deposition testimony that she did not believe that she was more qualified for the compliance investigator position than Storm or Rye, but she felt that she met the minimum requirements. Record Doc. No. 49-1 at p. 11 (deposition p. 38, lines 13-17). Farmer testified, however, that she believes she was more qualified than Madere due to her legal background. Id. at deposition p. 39, lines 12-21. Plaintiff testified that she does not have any knowledge of how the Civil Service hiring process works. Id. at deposition p. 41, lines 9-11. In her sworn affidavit, Cynthia Knecht, the Board's Human Resources Specialist, testified that Farmer's name was not included on the list of eligible applicants provided by Civil Service to the Board for the position of Compliance Investigator 2. Record Doc. No. 42-3 at ¶ 6. As a result, Knecht stated, the Board could not have hired Farmer as a Compliance Investigator 2. Id.

         Mouton testified in her deposition that when she became director in 2013 she looked into “shuffl[ing]” the Board's accounting department, which would have resulted in Farmer getting a new position with more duties and a higher salary. Record Doc. No. 42-4 at pp. 9-10. Mouton testified that she was told by Farmer's supervisor that such a “shuffle” was not possible. Id. at p. 10. Plaintiff testified that she responded to a survey, “in a nutshell, ” that she did not feel she “was being utilized to [her] full capabilities.” Record Doc. No. 49-1 at p.14 (deposition p. 53, lines 7-9). Farmer also testified that she did not have enough work to do as a licensing analyst and that she was given additional job duties, including occasional delivery and janitorial work, after taking the survey. Id. at pp. 18-19 (deposition pp. 69-70).

         Plaintiff testified that she was employed as a paralegal for Jordan's Legal Solutions while she was simultaneously working at the Board; she admitted that she would do this paralegal work without permission during Board business hours. Id. at pp. 4-5 (deposition pp. 13-14). Mouton testified that the Board had evidence that Farmer was using Board equipment to do her work for the outside paralegal business. Record Doc. No. 42-4 at pp. 4-5. As a result, Mouton testified that she asked the Board's head of information technologies to search Farmer's computer, which revealed “numerous examples of documents that [Farmer] was working on during business hours, [and] e-mails to business associates of hers, that were not related to the [Board].” Id. at p. 8. Mouton testified that she asked Farmer's supervisor to counsel Farmer against her inappropriate use of the Board's resources, but Mouton denied that she ever sought to fire Farmer for her actions. Id. at pp. 3 and 5.

         Farmer testified that she began “aggressively looking for another job” in mid June 2014 after she received the email from Civil Service stating that she was not qualified for the Compliance Investigator 2 position. Record Doc. No. 49-1 at pp. 12 and 20 (deposition pp. 44, lines 12-14 and 74, lines 16-19).

         On July 8, 2014, Farmer emailed her supervisors to request a leave of absence from work so that she could explore other employment options. Record Doc. Nos. 42-5 at p. 1 and 42-14 at ¶ 21. Plaintiff wrote a letter to the Equal Employment Opportunity Commission (the “EEOC”) the next day, July 9, 2014, and stated that she believed she was “experiencing racial discrimination and harassment in the workplace.” Record Doc. Nos. 49-6 and 49-11 at ¶ 33. Mouton then received a letter from paralegal Sonjanita Jordan, the owner of plaintiff's other employer, Jordan's Legal Solutions, sent on July 10, 2014, which alleged that the Board had potentially violated Title VII by harassing and discriminating against plaintiff on the basis of her race. Record Doc. Nos. 42-4 at p. 11, 42-8 and 49-1 at p. 46.

         Farmer submitted her resignation letter to the Board eight (8) days later, on July 18, 2014. Record Doc. Nos. 42-1 at p. 10, 42-14 at ¶ 28 and 49-1 at pp. 47-48. Mouton accepted Farmer's resignation the same day. Id. Farmer testified that she had accepted a job as a paralegal at the Jefferson Parish Attorney's Office “days before” she submitted her letter of resignation and that she began her new job on August 4, 2014. Record Doc. No. 49-1 at pp. 24 and 27 (deposition pp. 91, line 6 and 105, lines 20-21). Farmer's last day of work at the Board was July 25, 2014. Record Doc. No. 42-1 at p. 10. She submitted a charge of discrimination to the EEOC on August 28, 2014, alleging discrimination based on race and color and retaliation beginning on July 15, 2014. Record Doc. No. 42-13.

         II. ANALYSIS

         A. Standards of Review

         “A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. 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). Rule 56, as revised effective December 1, 2010, establishes new procedures for supporting factual positions:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c).

         Thus, the moving party bears the initial burden of identifying those materials in the record that it believes demonstrate the absence of a genuinely disputed material fact, but it is not required to negate elements of the nonmoving party's case. Capitol Indem. Corp. v. United States, 452 F.3d 428, 430 (5th Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “[A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to [a particular material] fact.” Advisory Committee Notes, at 261.

         A fact is “material” if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). No genuine dispute of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).

         To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must cite to particular evidence in the record to support the essential elements of its claim. Id. (citing Celotex, 477 U.S. at 321-23); accord U.S. ex rel. Patton v. Shaw Servs., L.L.C., 418 F. App'x 366, 371 (5th Cir. 2011). “[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial.” Celotex, 477 U.S. at 323; accord U.S. ex rel. Patton, 418 F. App'x at 371.

         “Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists.” Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998); accord Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005). “We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.” Badon v. R J R Nabisco Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quotation omitted) (emphasis in original). “Conclusory allegations unsupported by specific facts . . . will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his allegations . . . to get to a jury without any “significant probative evidence tending to support the complaint.”'” Nat'l Ass'n of Gov't Employees, 40 F.3d at 713 (quoting Anderson, 477 U.S. at 249) (emphasis added).

         “Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotation omitted) (emphasis in original); accord Duron v. Albertson's LLC, 560 F.3d 288, 291 (5th Cir. 2009).

         Under Fed.R.Civ.P. 56(c)(1)(A), evidence submitted at the summary judgment stage must be admissible as presented or the proponent must show that it will be presented in an admissible form as the proceedings continue.

Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . ., the material may be presented in a form that would not, in itself, be admissible at trial.
[T]he rule expressly contemplates that affidavits are only one way to “support” a fact; “documents . . . declarations, [and] other materials” are also supportive of facts. Fed.R.Civ.P. 56(c)(1)(A). To avoid the use of materials that lack authenticity or violate other evidentiary rules, the new rule allows a party to object “that the material cited to support or dispute a fact cannot be presented in a form that would be admissible as evidence.” Fed.R.Civ.P. 56(c)(2); see also advisory committee's note to 2010 amendment (“The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.”).

Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 354-55 (5th Cir. 2017) (quotations and additional citations omitted); see also Maurer v. Indep. Town, 870 F.3d 380, 384 (5th Cir. 2017) (“At the summary judgment stage, evidence need not be authenticated or otherwise presented in an admissible form.”).

         B. Title VII Racially Discriminatory Failure to Promote

         Farmer claims that she was denied promotions based on her race on three occasions when the Board placed three white women in those jobs in preference to her. Defendants argue that Farmer's claims under Title VII against the Board and Mouton for race discrimination should be dismissed because Farmer was not qualified by Civil Service for the positions. Defendants assert that plaintiff therefore fails to state a prima facie case of race discrimination based on the three failures to promote; that the Civil Service determination that she was not qualified precluded them from considering her and constituted their legitimate non-discriminatory reason for not promoting her; and that plaintiff “presents no direct evidence of racial discrimination.” Record Doc. No. 42-1 at pp. 12-14. Plaintiff responds that “Mouton could never truly reveal why April [Farmer] was not made a Compliance Investigator except for the color of her skin.” Record Doc. No. 49 at p. 23.

         Title VII makes it unlawful for an employer to discriminate against an employee “because of such individual's race” or “to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual's race.” 42 U.S.C. § 2000e-2(a). Plaintiff's Title VII discrimination claims based on circumstantial evidence are analyzed under the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Plaintiff has the initial burden of proving a prima facie case of race discrimination. Id.

In a failure-to-promote claim under Title VII, a plaintiff may establish a prima facie case of discrimination by showing that (1) [s]he was within a protected class; (2) [s]he was qualified for the position sought; (3) [s]he was not promoted; and (4) the position [s]he sought was filled by someone outside the protected class.

Smith v. Womans Hosp., 671 F. App'x 884, 888 (5th Cir. 2016) (citing Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001)) (emphasis added).

         A presumption of discrimination arises if plaintiff successfully establishes her prima facie case. Id. at 887. The employer must then

rebut [the] presumption of discrimination by articulating a legitimate, nondiscriminatory reason for the adverse employment action. If the employer meets its burden, then it shifts back to the plaintiff to present substantial evidence that the employer's reason was a pretext for discrimination. If the plaintiff can show that the proffered explanation is merely pretextual, that showing, when coupled with the prima facie case, will usually be sufficient to survive summary judgment.


         Plaintiff's subjective belief of discrimination, however genuine, cannot be the basis of relief. Carr v. Sanderson Farms, Inc., 665 F. App'x 335, 338 (5th Cir. 2016); Nichols v. Lewis Grocer, 138 ...

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