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Sanders v. Christwood, L.L.C.

United States District Court, E.D. Louisiana

June 26, 2019


         SECTION M (5)

          ORDER & REASONS


         Before the Court is a motion filed by defendant Christwood, L.L.C. (“Christwood”) for summary judgment on the racial discrimination and whistleblower claims filed by plaintiff Iona Sanders (“Sanders”).[1] Having considered the parties' memoranda[2] and the applicable law, the Court grants Christwood's motion concluding (1) that Sanders cannot prevail on her racial discrimination claims because she did not demonstrate that she suffered an adverse employment action or that another similarly-situated employee of a different race received preferential treatment; and (2) that Christwood, as a non-profit institution, cannot be held liable under the Louisiana whistleblower statute.

         I. BACKGROUND

         This matter concerns allegations of racial discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981, and a claim of retaliation under the Louisiana whistleblower statute, La. R.S. 23:967. Christwood, a non-profit entity, operates a retirement community consisting of independent living, assisted living, nursing, and memory care units.[3] Sanders, who is African-American and a registered nurse, began her employment with Christwood in September 2008.[4] Sanders alleges that in March 2015, she orally accepted a promotion to the position of assisted living unit director, which was offered to her by Christwood's vice associate executive director, David Cook (“Cook”), who is white.[5] According to Sanders, being a registered nurse is a required qualification for the directorship (which Christwood denies), and she performed the job duties of the position from March 2015 until she left her employment with Christwood in January 2017.[6] Sanders further alleges that, although she was performing the duties of the assisted living unit director, Tami Perry (“Perry”), who is white, a licensed practical nurse, and Sanders' supervisor, was listed with the State of Louisiana as holding the title. On December 5, 2016, Christwood filed the key personnel paperwork with the State to list Sanders as the assisted living unit director.[7] Sanders also alleges that she was promised a raise to $50, 000 per year, but was not paid that amount, “despite representations in various pay documents that she made nearly $58, 000 annually.”[8] Moreover, Sanders alleges that she did not receive the annual director's bonus.[9] Sanders contends that her pay discrepancy and the failure to change the paperwork with the State were due to racial animus.[10]

         Sanders also claims that she was constructively discharged due to racial discrimination.[11]Sanders alleges that on December 19, 2016, an incident occurred in the assisted living unit that was required to be reported to the State.[12] Sanders alleges that Perry and Cook asked her to alter paperwork reporting the incident, and she refused.[13] Sanders further alleges that the African-American nursing personnel on duty at the time of the incident were fired, whereas the white nurse involved was not.[14] Sanders claims that Cook told her she “made oversights” in relation to the December 19, 2016 incident and a separate incident concerning the administration of medicine, and as a consequence, on January 30, 2017, she was demoted to a non-supervisory role, which forced her to resign, resulting in constructive discharge.[15] Further, Sanders alleges that she was constructively discharged for refusing to falsify records, which she claims is a violation of state law[16]


         Christwood argues that it is entitled to summary judgment because Sanders cannot state a prima facia case of racial discrimination because she has failed to identify both an adverse employment action and a similarly-situated individual of a different race who was treated more favorably.[17] Christwood further argues that Sanders' whistleblower claim must be dismissed as a matter of law because La. R.S. 23:967 does not apply to non-profit institutions, such as Christwood.[18]

         Sanders maintains that she has carried her burden on summary judgment with respect to her racial discrimination claim. For example, she responds that she was treated less favorably than Ian Thompson (“Thompson”), the white nurse on duty at the time of the December 19, 2016 incident, because only the black employees involved were fired or demoted, whereas the white employee was not.[19] She also argues that she could not locate “any recent changes” to La. R.S. 23:967 that exempt non-profit entities from the law.[20]

         III. LAW & ANALYSIS

         A. Summary Judgment Standard

         Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial.” Id. A party moving for summary judgment bears the initial burden of demonstrating the basis for summary judgment and identifying those portions of the record, discovery, and any affidavits supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324.

         A genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The substantive law identifies which facts are material. Id. Material facts are not genuinely disputed when a rational trier of fact could not find for the nonmoving party upon a review of the record taken as a whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Equal Emp't Opportunity Comm'n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). “[U]nsubstantiated assertions, ” “conclusory allegations, ” and merely colorable factual bases are insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court must assess the evidence, review the facts, and draw any appropriate inferences based on the evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet, a court only draws reasonable inferences in favor of the nonmovant “when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).

         After the movant demonstrates the absence of a genuine dispute, the nonmovant must articulate specific facts and point to supporting, competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998); Fed.R.Civ.P. 56(c)(1)(A) & (c)(2). Such facts must create more than “some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant will bear the burden of proof at trial on the dispositive issue, the moving party may simply point to insufficient admissible evidence to establish an essential element of the nonmovant's claim in order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25; Fed.R.Civ.P. 56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.

         B. Title VII

         Title VII prohibits an employer from taking certain discriminatory actions against an individual “because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff bringing claims under Title VII can use either direct or circumstantial evidence to prove her case of intentional discrimination. Portis v. First Nat'l Bank of New Albany, 34 F.3d 325, 328 (5th Cir. 1994). Direct evidence is “evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). “Because direct evidence is rare, a plaintiff ordinarily uses circumstantial evidence to meet the test set out in McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)].” Portis, 34 F.3d at 328.

         When a plaintiff relies on circumstantial evidence, as in this case, the plaintiff must first establish a prima facie case of discrimination by proving that: (1) she is a member of a protected class; (2) she was qualified for the position at issue; (3) she was the subject of an adverse employment action; and (4) she was treated less favorably because of membership in the protected class than were other similarly-situated employees who were not members of the protected class, under nearly identical circumstances. Paske v. Fitzgerald, 785 F.3d 977, 984-85 (5th Cir. 2015) (citation omitted). If a plaintiff makes this prima facie showing and thereby creates a presumption of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the action or decision. Buisson v. Bd. of Supervisors of the La. Cmty. & Tech. Coll. Sys. 592 Fed.Appx. 237, 243 (5th Cir. 2014) (citing McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007)). Then finally, the burden shifts back to the plaintiff to show that the defendant's proffered reason is pretextual. Id. However, the “ultimate burden” of persuasion that there was discrimination remains with the plaintiff at “all times.” Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).

         Christwood concedes that Sanders, an African-American, is a member of a protected class, and that as a registered nurse she was qualified for the position at issue. However, Christwood argues that Sanders cannot establish a prima facie case of discrimination because she cannot demonstrate that she was subjected to an adverse employment action or that she was treated less favorably than a similarly-situated employee who was not a member of the protected class. Further, Christwood argues that Sanders cannot establish that she was constructively discharged because a reasonable employee in similar circumstances would not have felt compelled to resign.

         The Fifth Circuit has adopted “a strict interpretation of the adverse employment element, ” under which “an employment action that ‘does not affect job duties, compensation, or benefits' is not an adverse employment action.” Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004) (quoting Banks v. E. Baton Rouge Par. Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)). “Rather, an adverse employment action consists of ‘ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.'” Id. (quoting Felton v. Polles, 315 F.3d 470, 486 (5th Cir.2002)) (emphasis in Pegram). Further, a demotion can qualify as an ultimate employment decision under Title VII. Id. (citing Sharp v. City of Houston, 164 F.3d 923, 933 n.21 (5th Cir. 1999)).

         Sanders identifies four actions she claims amount to adverse employment decisions - Christwood's alleged failure to timely list her with the State as the assisted living unit director, failure to raise her pay when she was promoted to the assisted living unit director position, demoting her to a non-supervisory position, and causing her constructive discharge by means of the alleged demotion. The issues regarding reporting Sanders' job title to the State, her pay, and the purported constructive discharge do not constitute adverse employment actions. And, although the demotion could be an adverse employment action, Sanders has failed to identify a similarly-situated employee who was treated more favorably.

         First, the alleged failure to timely notify the State of Sanders' promotion to assisted living unit director does not qualify as an ultimate employment decision. Indeed, Sanders concedes that despite this alleged failure on Christwood's part, she was performing the job duties of the assisted living unit director. Nor is there any allegation or evidence that the failure to report the change in job title actually affected a decision about hiring, granting leave to, discharging, promoting, or compensating Sanders. To be sure, there is no allegation describing any adverse effect on Sanders arising from the failure to report the promotion to the State. Further, Christwood's director of human resources, Ladonna Allen ...

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