United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
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. 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.
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.
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 UNDISPUTED FACTS
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.
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 ¶
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.
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.
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.
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.
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).
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.
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,
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.
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.
Standards of Review
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
(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).
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,
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).
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
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).
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).
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.”).
Title VII Racially Discriminatory Failure to Promote
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.
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.
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))
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.
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 ...