United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE
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.
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).
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).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).
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).
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
Law and Analysis
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).
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.
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.
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.
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.
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
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 ...