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Sulcer v. State

United States District Court, M.D. Louisiana

April 11, 2019

KELVIN SULCER
v.
STATE OF LOUISIANA, THROUGH DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS OFFICE OF STATE POLICE

         CONSENT

          ORDER

          RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant's Motion for Summary Judgment (R. Doc. 23) filed on September 20, 2018. Plaintiff filed an Opposition (R. Doc. 26) on October 23, 2018. Defendant filed a Reply (R. Doc. 32) on November 1, 2018, and Plaintiff filed a Sur-Reply (R. Doc. 35) on November 9, 2018. Oral argument was held on March 13, 2019. (R. Doc. 40). Accordingly, the Motion is ripe for review.

         I. Background

         Kevin Sulcer (“Plaintiff”) initiated this litigation with the filing of his Complaint (R. Doc. 1) on March 21, 2017. Therein, Plaintiff alleges that the State of Louisiana, through the Department of Public Safety and Corrections, Office of State Police (“Defendant”) violated 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 based on his African American race and a discriminatory denial of the opportunity to work as a Polygraphist. (R. Doc. 1 at 10-11).

         Plaintiff alleges that he is an African American employee of the Louisiana State Police (“LSP”), having been employed with LSP since September 13, 2004. (R. Doc. 1 at 2-3). Specifically, Plaintiff states that he “was and is a Trooper/Detective with LSP.” (R. Doc. 1 at 3). During the course of his employment, Plaintiff alleges that he was not promoted from his position as a trooper/detective to a polygraphist position due to his African American race. (R. Doc. 1 at 3).[1]Plaintiff asserts that an opening for a polygraphist position was posted, and that LSP “handpicked an unqualified Caucasian employee to fill” the position. (R. Doc. 1 at 7). Plaintiff also asserts that he was denied the ability to promote because of his race and retaliation for prior complaints of racism, despite him having “more law enforcement experience.” (R. Doc. 1 at 7).

         Defendant seeks summary judgment as to all claims brought by Plaintiff. (R. Doc. 23). In its supporting Memorandum, Defendant suggests that Plaintiff testified in deposition that he saw the polygraphist position announcement in April of 2016 and sent an email to the State Police Commission inquiring about when a polygraph class would be offered. (R. Doc. 23-1 at 5). Defendant asserts that Plaintiff then contacted David McClendon, upon direction of the State Police Commission, who advised Plaintiff to speak with his own supervisors about polygraphist training, but that Plaintiff never did so. (R. Doc. 23-1 at 5-6).

         Prior to the announcement of the polygraphist position, Defendant alleges that Plaintiff testified he learned in 2015 that Donny Guitreau-a Caucasian employee-had attended polygraphist school, but that Plaintiff had never expressed an interest in attending polygraphist school until the position was announced in 2016. (R. Doc. 23-1 at 6). Defendant posits that, after Guitreau “performed well” at polygraphist school, the State Police Commission revised the qualifications for a polygraphist position. (R. Doc. 23-1 at 8). Mr. Guitreau was then promoted to the polygraphist position.

         II. Law and Analysis

         A. Legal Standard

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the burden at trial rests on the non-moving party, the moving party need only demonstrate that the record lacks sufficient evidentiary support for the non-moving party's case. Id. The moving party may do this by showing that the evidence is insufficient to prove the existence of one or more essential elements of the non-moving party's case. Id. A party must support its summary judgment position by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute.” Fed.R.Civ.P. 56(c)(1).

         Although the Court considers evidence in a light most favorable to the non-moving party, the non-moving party must show that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Conclusory allegations and unsubstantiated assertions will not satisfy the non-moving party's burden. Grimes v. Tex. Dep't of Mental Health, 102 F.3d 137, 139-40 (5th Cir. 1996). If, once the non-moving party has been given the opportunity to raise a genuine fact issue, no reasonable juror could find for the non-moving party, summary judgment will be granted for the moving party. Celotex, 477 U.S. at 322-23.

         In order to succeed on a claim for failure to promote on the basis of race, Plaintiff must establish that (1) he was within the protected class; (2) he applied for and was qualified for the position sought; (3) he was not promoted (i.e., he suffered an adverse employment action); and (4) the position he sought was filled by someone outside the protected class. See McFall v. Gonzales, 143 Fed. App'x 604, 607 (5th Cir. 2005). If a plaintiff makes this preliminary showing, the burden shifts to the Defendant to show a legitimate, non-discriminatory reason for the action, which is a burden of production, not persuasion, and does not involve credibility assessment. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). If a defendant makes its showing, the burden shifts back to the Plaintiff to show the legitimate, non-discriminatory reason is merely a pretext for a discriminatory purpose. McCoy, 492 F.3d at 557.

         B. Analysis

         No party disputes that Plaintiff is within a protected class as he is African American. Thus, Plaintiff has met the first prong of his initial burden. There is also no dispute as to the third and fourth prongs of Plaintiff's prima facie case. No. party disputes that Plaintiff was not promoted to the polygraphist position, and no party disputes that Mr. Guitreau, the employee who was promoted, is outside of the protected class, as he is Caucasian. The only question insofar as Plaintiff's prima facie case is concerned is the second prong, whether he applied for and was qualified for the position sought.

         The second prong of Plaintiff's prima facie case comprises two parts for our purposes herein, the first being whether Plaintiff actually applied for the position sought. See, e.g. Grice v. FMC Technologies, Inc., 2006 WL 5603934, at *5 (S.D. Tex. May 24, 2006) (granting summary judgment as to failure to promote claim based on lack of evidence plaintiff actually applied). Plaintiff does not allege that he applied for the polygraphist position, but rather that he was “denied the ability to apply/compete for positions because of his race.” (R. Doc. 1 at ¶ 29). There is also no evidence submitted that Plaintiff applied for the position pursuant to the instructions in the job opening announcement. The evidence submitted by the parties shows that the polygraphist position was posted on April 22, 2016 and directed potential applicants to “fill out the information below and forward this application to” the State Police Commission. (R. Doc. 23-7). Plaintiff submitted an email chain that was initiated by him on April 25, 2016, wherein he states, “I'm interested in the polygraphist position and any future polygraphist position [sic] that may become available in the future.” (R. Doc. 26-12 at 4). There is no evidence that he attached the required application form and forwarded it to the State Police Commission as directed by the posting.

         The Fifth Circuit has recognized some situations where a plaintiff can meet the application requirement of his prima facie case of discrimination without actually applying. In Bernard v. Gulf Oil Corp., 841 F.2d 547, 570 (5th Cir. 1988), the appellate court remanded a case based on its finding that the district court “failed to consider the fact that supervisory vacancies were not announced prior to 1982 and that no application process existed.” The same is not true here, however, as there is no suggestion that vacancies were not announced or that no application process existed. The evidence here points to the contrary, as the parties attach a vacancy announcement that provides instructions as to the application process. Further, no party disputes that Plaintiff received the posting and that his April 25, 2016 email was in response to his receipt of the posting.

         Notwithstanding this finding, in the case of Adams v. Memorial Hermann, 2018 WL 5886800, at *7 (S.D. Tex. Nov. 9, 2018), the district court denied summary judgment, finding that a plaintiff had met her prima facie burden despite not having actually applied where “a reasonable factfinder could conclude that Defendant prevented Plaintiff Adams from applying for a new position in light of the evidence.” Viewing the evidence in the light most favorable to the non-moving Plaintiff, the Court finds that summary judgment is improper on this ground for several reasons. First, during the application period, Plaintiff initiated email contact with the State Police Commission, wherein he stated that he was “interested in the polygraphist position.” (R. Doc. 26-12 at 4). In response, Ms. Givens appears to have addressed an inquiry in the original email seeking a list of polygraphist schools by attaching a file, but does not respond to Plaintiff's expressed interest in the polygraphist position, either by informing him that his email inquiry was insufficient to ...


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