Montgomery-Smith v. Department of Health and Hospitals State of Louisiana, et al, No. 2:2017cv05564 - Document 105 (E.D. La. 2018)
Court Description: ORDER AND REASONS - IT IS ORDERED that Defendant Louisiana Department of Health and Hospitals' 88 motion for summary judgment be and hereby is GRANTED. IT IS FURTHER ORDERED that there be judgment in favor of Defendant Louisiana Department of Health and Hospitals and against Plaintiff Deneen Montgomery-Smith. Signed by Judge Susie Morgan. (bwn)
Download PDF
<![CDATA[
Montgomery-Smith v. Department of Health and Hospitals State of Louisiana, et al Doc. 105 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A D EN EEN L. MON TGOMERY-SMITH , Plain tiff CIVIL ACTION VERSU S N O. 17-556 4 LOU ISIAN A D EPARTMEN T OF H EALTH AN D H OS PITALS, ET AL., D e fe n d an ts SECTION : “E”( 3 ) ORD ER AN D REAS ON S Before the Court is a m otion for sum m ary judgm ent filed by Defen dant Louisiana Departm ent of Health and Hospitals (“DHH”). 1 Plaintiff Deneen Montgom ery-Sm ith opposes the m otion. 2 For the reasons that follow, the Court grants the m otion in full and grants judgm ent in favor of DHH and against Plaintiff. BACKGROU N D 3 The Court assum es fam iliarity with the facts of this case, which have been aptly sum m arized in this Court’s prior orders. 4 On March 2, 20 18, the Court granted in part and denied in part DHH’s m otion to dism iss. 5 Following the Court’s ruling on DHH’s m otion to dism iss, Plaintiff’s rem aining claim s arise under Title VII of the Civil Rights Act, 6 and are based on: (1) a retaliatory hostile work environm ent, (2) retaliation, and (3) race discrim ination. 7 DHH now seeks sum m ary judgm ent on those claim s. 8 In its m otion, DHH subm its it is entitled to judgm ent as a m atter of law on Plaintiff’s retaliatory hostile work environm ent claim , arguing Plaintiff cannot m ake a 1 R. Doc. 88 . R. Doc. 10 3. 3 Unless otherwise indicated, “R. Doc.” refers to record docum ents in the instant m atter, No. 17-5564. 4 See R. Doc. 69; No. 15-6369, R. Docs. 45, 78, 142. 5 R. Doc. 69. 6 42 U.S.C. § 20 0 0 e. 7 R. Doc. 54 at ¶¶ 97– 10 3. 8 R. Doc. 88 . 2 1 Dockets.Justia.com prim a facie case of a hostile work environm ent. 9 DHH further contends it is entitled to judgm ent on Plaintiff’s retaliation claim , as Plaintiff’s claim s of retaliation are not causally connected to Plaintiff’s protected conduct. 10 Finally, DHH seeks judgm ent on Plaintiff’s race discrim ination claim , contending that, even assum ing Plaintiff has stated a prim a facie case of race discrim ination, DHH has articulated a non-retaliatory reason for its conduct, and Plaintiff cannot m eet her burden of showing pretext. 11 I. LEGAL STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”12 “An issue is m aterial if its resolution could affect the outcom e of the action.”13 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.”14 All reasonable inferences are drawn in favor of the non-m oving party. 15 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 16 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion, and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.” 9 Id. at 25– 26. Id. at 16– 24. 11 Id. at 27– 29. 12 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 13 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 14 Delta & Pine Land Co. v . N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 15 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 16 Hibernia N at. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citin g Am oco Prod. Co. v. Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 10 2 To satisfy Rule 56’s burden of production, the m oving party m ust do one of two things: “the m oving party m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “the m oving party m ay dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .” If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 17 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to establish an essential elem ent of the non-m ovant’s claim . 18 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 19 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”20 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the 17 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Bren nan, J ., dissentin g). 19 See id. at 332. 20 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 18 3 precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”21 II. AN ALYSIS In her am ended com plaint, Plaintiff alleges she was subjected to a retaliatory hostile work environm ent, retaliation, and race-based discrim in ation, all based on conduct that allegedly occurred between March 27, 20 15 and Decem ber 5, 20 16. 22 DHH m oves for sum m ary judgm ent on these claim s. 23 The Court discusses each claim separately. A. D H H is e n title d to s u m m ary ju d gm e n t o n Plain tiff’s re taliato ry h o s tile w o rk e n viro n m e n t claim Plaintiff alleges she was subjected to a retaliatory hostile work environm ent. A hostile work environm ent results from discrim in ation that does not culm inate in a tangible em ploym ent action. 24 A hostile work environm ent: Involves repeated conduct … [that] occur over a series of days or perhaps years an d … [where] a single act of harassm ent m ay not be actionable on its own, [while] a discrete-acts claim involves a single act of discrim ination such as term ination, failure to prom ote, denial of transfer, or refusal to hire. [A] plaintiff m ay not com bine discrete acts to form a hostile work environm ent claim without m eeting the required hostile work environm ent standard. 25 21 Ragas v. Tenn. Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)) (quotin g Skotak v. Tenn eco Resins, Inc., 953 F.2d 90 9, 915– 16 & n.7 (5th Cir. 1992)). 22 R. Doc. 54. 23 R. Doc. 88 . 24 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998). 25 Row e v. Jew ell, 8 8 F. Supp. 3d 647, 674 (E.D. La. 20 15) (alterations in original) (internal quotations and citations om itted). 4 “A workplace environm ent is hostile when it is perm eated with discrim in atory intim idation, ridicule, and in sult, that is sufficiently severe or pervasive to alter the conditions of the victim ’s em ploym ent.”26 Plaintiff’s hostile work environm ent claim differs from the typical hostile work environm ent claim in that Plaintiff claim s DHH created and perm itted a hostile work environm ent in retaliation for her protected activities, as opposed to a hostile work environm ent based on discrim ination again st a protected group under Title VII. 27 “The Fifth Circuit has neither recognized nor foreclosed retaliatory hostile work environm ent claim s.”28 “At least five other circuits recognize such a cause of action.”29 “Given the absence of binding authority, courts in the Fifth Circuit have assum ed that a retaliatory hostile work environm ent claim can be brought.”30 The Court need not decide whether a retaliatory hostile work environm ent is an actionable claim under Title VII, however, as Plaintiff’s proffered eviden ce of a hostile work environm ent is neither severe nor pervasive enough to overcom e DHH’s sum m ary judgm ent m otion. Courts in this circuit have found conduct dem onstrably m ore severe and m ore pervasive than Plaintiff’s allegations in the instant m atter did not alter the term s and conditions of the plaintiffs’ em ploym ent. For exam ple, in EEOC v. W C & M Enterprises, the Fifth Circuit concluded the plaintiff’s allegation that (1) she was placed on adm in istrative leave for three weeks; (2) upon returning, she was reassign ed to a n ew 26 Alaniz v. Zam ora-Quezada, 591 F.3d 761, 771 (5th Cir. 20 0 9) (quotations om itted). See R. Doc. 45. 28 See Zavala v. Carrollton-Farm ers Branch Indep. Sch. Dist., 20 17 WL 274133, at *2 (N.D. Tex. J an . 20 , 20 17) (citing Fallon v. Potter, 277 F. App’x. 422, 424 (5th Cir. 20 0 8)). 29 Id. (collectin g cases). 30 Id. (citing Row e, 8 8 F. Supp. 3d at 673; Tejada v. Travis Ass’n for the Blind, 20 14 WL 28 81450 , at *3 (W.D. Tex. J une 25, 20 14)). 27 5 supervisor and given a heavier workload; (3) personal item s were taken from her desk; (4) the locks on her office had been changed and she was not allowed to close her office door; and (5) she was chastised by superiors and ostracized by co-workers, did not “rise to the level of m aterial adversity but instead fall into the category of ‘petty slights, m inor annoyan ces, an d sim ple lack of good m anners.’”31 Sim ilarly, in Escalante v. Holder, the Western District of Texas determ in ed the plaintiff was subjected to twenty-six discrete events falling into four categories: “(1) unwarranted com m ents and rude behavior . . .; (2) tem porary change of schedule, the three and one half week-period in which Plaintiff worked weekends and som e evenings and added duty assignm ents when Plaintiff was asked to help with the official count; (3) Plaintiff's not attending a training conference; and (4) an investigation into Plaintiff's alleged breach of policy by releasing confidential inform ation and her tem porary transfer to the religious services unit.” The court concluded that these allegations, even when considered collectively, did not alter the term s and conditions of the plaintiff’s em ploym ent, and therefore did not create a hostile work environm ent. 32 In this case, Plaintiff bases her hostile work environm ent claim on: (1) the conduct of Darlene Sm ith, Plaintiff’s co-worker who allegedly laughed and glared at Plaintiff each tim e Plaintiff was denied a prom otion; 33 (2) Plaintiff’s office being m oved from the sixth floor to the fourth floor; 34 (3) Plaintiff’s not being invited to the 20 17 Thanksgiving 31 496 F.3d 393, 399– 40 0 (5th Cir. 20 0 7). No. 0 9-368 , 20 11 WL 1528 472, at *8 (W.D. Tex. Apr. 20 , 20 11) (citing Ellis v. Prin cipi, 246 F. App’x 867, 871– 72 (5th Cir. 20 0 7)); see also Shiner, 546 F. App’x at 40 8 (com m ents from a co-worker did not create a hostile work environm ent because they were not pervasive); McConathy v. Dr. Pepper/ Sev en Up Corp., 131 F.3d 558, 563– 64 (5th Cir. 1998) (“McConathy has not alleged sufficiently pervasive disability-based harassm ent so as to state a claim upon which relief can be granted. Even if we assum e everything she claim s about Quigley is true, his actions, while insensitive an d rude, would not be sufficient as a m atter of law to state a claim of hostile en vironm ent harassm ent.”). 33 R. Doc. 88-3 at 56:19– 57:14; R. Doc. 10 3-1 at 51– 54. 34 R. Doc. 88-3 at 126; R. Doc. 10 3-1 at 51– 54. 32 6 luncheon; 35 (4) Plaintiff’s not being asked to participate in the office’s breast can cer awareness prom otion, “Pink Day”; 36 (5) Plaintiff’s being isolated from her co-workers; and (6) other em ployees being instructed not to talk to Plaintiff. 37 Like the plaintiffs’ claim s in W C & M Enterprises and Escalante, these allegations am ount to the kinds of “petty slights” and “m inor annoyances,” the Fifth Circuit has cautioned do not alter the term s and conditions of em ploym ent, 38 and, as a result, do not create a hostile work environm ent. DHH is entitled sum m ary judgm ent on Plaintiff’s retaliatory hostile work environm ent claim . B. D H H is e n title d to s u m m a ry ju d gm e n t o n Plain tiff’s re taliatio n cla im Plaintiff alleges that, between March 27, 20 15 and Decem ber 5, 20 16, she was denied prom otional opportunities in retaliation for having filed grievances, filed Equal Em ploym ent Opportunity Com m ission (“EEOC”) charges, and initiated lawsuits against DHH. 39 To establish a prim a facie case of retaliation in this circuit, a plaintiff m ust show that: (1) she engaged in a protected activity; (2) she experienced an adverse em ploym ent action following the protected activity; and (3) a causal link existed between the protected 35 R. Doc. 88-3 at 128:18 – 131:1; R. Doc. 10 3-1 at 51– 54. R. Doc. 88-3 at 128:18 – 131:1; R. Doc. 10 3-1 at 51– 54. 37 R. Doc. 88-3 at 131:2– 135:6; R. Doc. 10 3-1 at 51– 54. 38 See Stew art, 58 6 F.3d at 331 (quotin g Burlington, 548 U.S. at 68); King v. Louisiana, 294 F. App’x 77, 85 (5th Cir. 20 0 8) (em phasis added); Grice v . Technologies, Inc., 216 F. App’x 41 (5th Cir. 20 0 7). The Court also notes that Plaintiff has not provided the dates these alleged events took place, which are n ecessary to establish that there is a dispute of fact with respect to whether at least one event occurred during the relevant tim e period. Although acts that occurred outside the statutory tim e period m ay serve as “relevant background evidence in a proceeding in which the status of a current practice is at issue,” a hostile work environm ent claim is tim ely only if “at least on e act falls within the tim e period.” N at’l R.R. Passenger Corp. v. Morgan, 536 U.S. 10 1, 112, 122 (20 0 2). Even assum ing each of the alleged acts occurred within the relevant tim efram e, Plaintiff’s allegations nevertheless do not show she was subjected to a hostile work environm ent. 39 R. Doc. 54 at ¶ 76. In her opposition to DHH’s m otion to dism iss, Plaintiff stated she “does not seek to m ake any claim s prior to March 26, 20 15,” R. Doc. 64 at 35, and that “[t]he denial of prom otions and details in this case are between effective dates of August 3, 20 15 and Decem ber 5, 20 16,” id. at 25– 26. 36 7 activity and the adverse em ploym ent action. 40 If a plaintiff cannot establish any of these three prerequisites, she has failed to state a prim a facie case of retaliation, and sum m ary judgm ent is appropriate. 41 With respect to the second prong of the analysis, in Burlington N orthern & Santa Fe Railw ay Co. v. W hite, the U.S. Suprem e Court held that, because the discrim ination and retaliation provisions of Title VII have different statutory language and purposes, “the anti-retaliation provision, unlike the substantive provision, is not lim ited to discrim inatory actions that affect the term s and conditions of em ploym ent.”42 Based on this understanding, the Court held that a plaintiff claim ing retaliation under Title VII need only show that a reasonable em ployee would have found the alleged retaliatory action “m aterially adverse” in that “it well m ight have dissuaded a reasonable worker from m aking or supporting a charge of discrim ination.”43 With respect to the third prong, a plaintiff m ay establish causation by dem onstrating that the “tem poral proxim ity” of the plaintiff’s protected conduct and the adverse em ploym en t action were “very close.”44 The establishm ent of a prim a facie case gives rise to a rebuttable presum ption that the defendant retaliated against the plaintiff. 45 Once the plaintiff establishes all three prongs of the analysis, the burden shifts to the defendant, who m ust then articulate a legitim ate, nondiscrim inatory or non-retaliatory reason for the challenged em ploym ent action. 46 Once a defendant asserts such a reason, the presum ption of retaliation is 40 McCoy v. City of Shreveport, 492 F.3d 551, 556– 57 (5th Cir. 20 0 7); Montem ay or v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 20 0 1); Mota v. Univ. of Tex. Houst. Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 20 0 1). 41 See Montem ay or, 276 F.3d at 692. 42 548 U.S. 53, 64 (20 0 6). 43 Id. at 68 (quotation m arks and citation om itted). 44 Clark Cty . Sch. Dist. v. Breeden, 532 U.S. 268 , 273 (20 0 1). 45 Id. 46 McCoy , 492 F.3d at 557. 8 defeated, 47 and sum m ary judgm ent is appropriate unless the plaintiff can prove that the defendant's rationale is pretextual. 48 To show she experienced an adverse em ploym ent action, Plaintiff need only show DHH’s retaliatory conduct “well m ight have dissuaded a reasonable worker from m aking or supporting a charge of discrim ination.”49 Plaintiff argues, “Not receiving raises and prom otions for 11 years rises to the level of [being] m aterially adverse.”50 Plaintiff com plains of seven positions for which she was passed over in favor of individuals she contends were less qualified candidates and two positions that were canceled after Plaintiff subm itted her application. Altogether, Plaintiff points to nine positions to which she was not hired as form ing the basis of her retaliation claim : (1) Program Manager 2, to which Plaintiff applied on J une 27, 20 15 and to which Robin Lewis was prom oted; (2) Program Manager 1-B, to which Plaintiff applied on J une 27, 20 15 and to which J em im ah Mickel was prom oted; (3) Program Manager 1-B, to which Plaintiff applied on August 29, 20 15 which was cancelled; (4) Program Manager 1-B, to which Plaintiff applied on Septem ber 15, 20 15, and to which Om ar Khalid was prom oted; (6) Program Monitor Supervisor, for which Plaintiff provides no application date, and to which J ira Shea Davis was prom oted; (7) Program Manager 1-B, to which Plaintiff applied on May 22, 20 16 which was cancelled; (8 ) Program Monitor Supervisor, to which Plaintiff applied on Septem ber 7, 20 16, and to which Lauren Tran was prom oted; and (9) Program Manager 47 Montem ay or, 276 F.3d at 692. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 80 1– 0 3 (1973). 49 Id. at 68 (quotation m arks and citation om itted). 50 R. Doc. 10 3 at 11. Plaintiff also subm its Hugh Ely, who was prom oted to Deputy Secretary of DHH in 20 15, told Plaintiff “she would never be prom oted as a DHH em ployee.” Id. The Court notes that Plaintiff does not state when Mr. Ely m ade this alleged com m ent; however, this is the sam e evidence Plaintiff offered in support of her retaliation claim in a prior suit against DHH. Although acts that occurred outside the statutory tim e period m ay serve as “relevant background evidence in a proceedin g in which the status of a current practice is at issue,” “discrete acts that fall within the statutory tim e period do not m ake tim ely acts that fall outside the tim e period.” N at’l R.R. Passenger Corp. v . Morgan, 536 U.S. 10 1, 112 (20 0 2). 48 9 II, to which Plaintiff applied on Septem ber 16, 20 16, and to which J em im ah Mickel was prom oted. 51 According to Plaintiff, “given her experience, her years of supervisory experience of professional people in various regions of the State, as well as her educational background, as well as the fact that she had been em ployed with the State since 1989, has an advanced degree, . . . she was the better choice.”52 Plaintiff contends she has established a prim a facie case, thereby entitling her to a rebuttable presum ption of retaliation. The Court reiterates that in order to establish a prim a facie case of retaliation, Plaintiff m ust dem onstrate that: (1) she engaged in a protected activity; (2) she experienced an adverse em ploym ent action following the protected activity; and (3) a causal link existed between the protected activity and the adverse em ploym ent action. 53 It is undisputed that Plaintiff has filed several grievances against DHH. 54 It is also undisputed that the filing of these grievances is a protected activity under Title VII. 55 Moreover, Fifth Circuit precedent dictates that the denial of a prom otion constitutes an adverse em ploym ent action. 56 Thus, the first two prongs are m et, and Plaintiff’s retaliation claim turns on whether there exists a causal connection between her Title VII protected activity an d her retaliation claim , 57 and, if so, whether DHH has articulated a legitim ate, non-retaliatory reason for hirin g other candidates over Plaintiff and for canceling positions after Plaintiff subm itted her application. 58 51 R. Doc. 54 ¶ 14. R. Doc. 10 3 at 11, 12, 17. 53 Id. at 556– 57. 54 R. Doc. 88-3 at 2– 3; R. Doc. 10 3-1 at 11– 13. 55 R. Doc. 88 at 16. 56 Hernandez v. Craw ford Bldg. Material Co., 321 F.3d 528 , 532 n.2 (5th Cir. 20 0 3) (collectin g cases); see also Alvarado v. Texas Rangers, 492 F.3d 60 5, 615– 16 (5th Cir. 20 0 7); Breaux v. City of Garland, 20 5 F.3d 150 , 157 (5th Cir. 20 0 0 ) (“Adverse em ploym ent actions are discharges, dem otions, refusals to hire, refusals to prom ote, and reprim ands.”). 57 McCoy , 492 F.3d at 556– 57. 58 Id. at 557. 52 10 Because the Court concludes Plaintiff has failed to establish the third prong, which requires her to show a causal connection between her filing an EEOC charge and subsequently being denied a prom otion, Plaintiff has failed to establish a prim a facie case of retaliation and, therefore, is not entitled to a rebuttable presum ption of discrim ination. Plaintiff filed her third em ploym ent discrim in ation charge against DHH on March 26, 20 15. 59 It is this third charge that is the subject of Plaintiff’s retaliation claim and the only charge relevant to the Court’s analysis. Plaintiff applied for the Program Manager 2 position on J une 27, 20 15. 60 DHH hired Robin Lewis for the Program Manager 2 position instead of Plaintiff on August 3, 20 15, over four m onths after Plaintiff filed her March 26, 20 15 EEOC charge. 61 As the Court previously explain ed, a plain tiff m ay establish causation by dem onstrating that the “tem poral proxim ity” of her protected conduct and the adverse em ploym ent action were “very close.”62 The U.S. Suprem e Court has cited with approval circuit court cases in which the court found three to four m onth periods too far rem oved to allow for a tem poral inference of causation. 63 The Fifth Circuit has affirm ed the granting of sum m ary judgm ent to defendants when plaintiffs m ake only “tim ing” allegations to establish causation without any additional supporting eviden ce. 64 On the other hand, the Fifth Circuit in Shirley v. 59 R. Doc. 30 -4 at 3. Plaintiff filed an em ploym ent discrim ination suit against DHH on April 13, 20 0 7 in the Civil District Court for the Parish of Orleans, R. Doc. 54 at ¶ 6, 7, and a second suit against DHH on October 24, 20 0 8, id. at ¶ 9. The 20 0 7 and 20 0 8 suits were settled in Novem ber 20 11. R. Doc. 54, ¶¶ 8– 9, 28 . Plaintiff filed her fourth charge on Novem ber 5, 20 15. No. 15-6369, R. Doc. 23 at ¶ 34. Plain tiff filed her fifth EEOC charge on February 9, 20 17. R. Doc. 54 at ¶ 76.1. Only Plaintiff’s third charge covers the allegations listed above. 60 R. Doc. 54 ¶ 14. 61 Id. 62 Clark Cty . Sch. Dist. v. Breeden, 532 U.S. 268 , 273 (20 0 1). 63 Id. at 273– 74. 64 Strong v. Univ. Healthcare Sy s. L.L.C., 48 2 F.3d 8 0 2, 80 7 (5th Cir. 20 0 7) (citing Roberson v. Alltel Inform . Servs., 373 F.3d 647, 656 (5th Cir. 20 0 4)) (“Again, tem poral proxim ity alone is insufficient to prove but for causation.”). 11 Chry sler First, Inc., 65 affirm ed the district court’s denial of sum m ary judgm ent upon a finding that the plaintiff proved “but for” causation when the plaintiff not only relied on tem poral proxim ity but in addition showed she had no disciplinary history during her nine years of em ploym ent and was fired quickly for alleged infractions for which the defendant offered no evidence. 66 “[I]m portantly, [the plaintiff’s] boss m ade disparaging com m ents about her EEOC com plaint and ‘harassed [her] to death about it’ before firing her.”67 In this case, other than noting the tim e between the filing of her third EEOC charge and subsequently being denied a series of prom otions between three and eighteen m onths after filing her charge, Plaintiff m erely states that “there is no other explanation” for why she was not prom oted “other than the fact that she had filed claim s against Vital records regarding grievances and her prior lawsuits.”68 “[T]he m ere fact that som e adverse action is taken after an em ployee engages in som e protected activity will not always be enough for a prim a facie case.”69 Thus, the Court concludes Plaintiff’s protected conduct an d DHH’s hiring of Robin Lewis for the Program Manager 2 position, which occurred over four m onths apart, without m ore, was not sufficiently close to establish causation. Because Plaintiff has not established her prim a facie case, she is not entitled to a rebuttable presum ption of retaliation. The Court will grant judgm ent in favor of DHH on Plaintiff’s Title VII retaliation claim . 70 65 970 F.2d 39 (5th Cir. 1992). Id. at 43. 67 Strong, 48 2 F.3d at 80 7. 68 R. Doc. 10 3 at 11, 12, 17. 69 Sw anson, 110 F.3d at 118 8 n.3. 70 The Court notes that, even if Plaintiff were able to show the alleged acts of retaliation were causally connected to her protected activity, DHH has articulated a legitim ate, non -retaliatory reason for each of their hiring decisions, R. Doc. 8 8 at 21– 24, and Plaintiff has not offered any evidence that these reasons are m ere pretext. 66 12 C. D H H is e n title d to s u m m ary ju d gm e n t o n Plain tiff’s ra ce d is crim in atio n cla im Under Title VII, em ployers are prohibited from “discharg[ing] an individual, or otherwise discrim inat[ing] again st any individual because of such individual's race, or national origin.”71 Because the record in this case contains no direct evidence of race discrim ination, the Court analyzes Plaintiff’s discrim ination claim using a three-part burden shifting analysis, as set forth in McDonnell Douglas Corp. v. Green. 72 “To establish a prim a facie case of em ploym ent discrim ination under M cDonnell Douglas, a plaintiff m ust establish [by a preponderance of the eviden ce] that [s]he (1) is a m em ber of a protected class; (2) was qualified for the position; (3) was subject to an adverse em ploym ent action; and (4) was replaced by som eone outside the protected class, or, in the case of disparate treatm ent, . . . that other sim ilarly situated em ployees were treated m ore favorably.”73 Under McDonnell Douglas, Plaintiff m ust first establish a prim a facie case of discrim ination. 74 If the prim a facie case is successfully established, the burden then shifts to the defendant to dem onstrate a legitim ate, nondiscrim in atory reason for its action. 75 At the sum m ary judgm ent stage, the defendant’s burden at the second stage of the McDonnell Douglas burden-shifting paradigm “is one of production, not persuasion; it ‘can involve no credibility assessm ent.’”76 Finally, if the defendant m eets its burden, the 71 42 U.S.C. § 20 0 0 e-2(a)(1). 411 U.S. 80 2, 80 4 (1973); see also Tex. Dep't of C'm ty . Affairs v. Burdin e, 450 U.S. 248 , 252– 53 (1981); By ers v. Dall. Morning N ew s, 20 9 F.3d 419, 425– 26 (5th Cir. 20 0 0 ). 73 Bry an v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 20 0 4); Urbano v. Continental Airlines Inc., 138 F.3d 20 4, 20 6 (5th Cir. 1998); Bauer v . Albem arle Corp., 169 F.3d 962, 966 (5th Cir. 1999). 74 By ers, 20 9 F.3d at 425– 26. 75 Id. 76 Reeves, 530 U.S. at 142. 72 13 burden shifts back to the plaintiff to dem onstrate that defendant's nondiscrim inatory action was a m ere pretext for discrim in ation. 77 For exam ple, in Levias v. Texas Departm ent of Crim inal Justice, the court determ ined the plaintiff had stated a prim a facie case of race discrim ination, thereby shifting the burden to the em ployer to state a non-racial reason for not prom oting the plaintiff. 78 The em ployer argued it did not prom ote the plaintiff because the em ployer was “im pressed with [the candidate it ultim ately prom oted’s] interview, but was not im pressed with [the plaintiff’s] interview.”79 Noting that it could not m ake a credibility assessm ent, the court accepted the em ployer’s race-neutral reason for not prom oting the plaintiff, and went on to analyze whether the plaintiff had dem onstrated that the em ployer’s justification for its conduct was “unworthy of credence.”80 Plaintiff contends DHH’s prom otion of Lauren Tran, a white fem ale, and Om ar Khalid, a white m ale, over Plaintiff was racially m otivated. 81 Even assum ing these allegations m ake out a prim a facie case of racial discrim ination, however, DHH has articulated a legitim ate, race-neutral reason for hiring Ms. Tran and Mr. Khalid over Plaintiff. 82 In his deposition, Mr. George testified that he selected Ms. Tran for the position because she: (1) had been recom m en ded by the interview panel, of which he was not a part; (2) was a very m otivated em ployee; (3) had innovative ideas as to how DHH m ight better collaborate with stakeholders; (4) thinks outside the box; (5) has a strong team -player attitude; (6) has a willingness to above and beyond to help custom ers and 77 Id. 352 F. Supp. 2d 751, 768 – 69 (S.D. Tex. 20 0 4). 79 Id. at 768. 80 Id. at 769 (citin g Reeves, 530 U.S. at 143). 81 R. Doc. 54 at ¶ 59. Plaintiff at tim es subm its Mr. Khalid is a white m ale, while at other tim es she contends he is a Muslim . Because she alleges race-based discrim ination , as opposed to religious discrim ination , the Court assum es for purposes of this m otion that Mr. Khalid is white. 82 McCoy , 492 F.3d at 557. 78 14 staff; (7) was the im petus for Vital Records setting up a call center; (8 ) had the best knowledge about LEERS for when funeral hom es call; and (9) had quality im provem ent, perform ance im provem ent, and data quality from Ochsner. 83 DHH has also stated a legitim ate, race neutral reason for prom oting Mr. Khalid. Mr. George testified that he prom oted Mr. Khalid because, am on g other things, Mr. Khalid had: (1) worked as a field representative; (2) worked as the Field Services Man ager; (3) worked in Legislative and Governm ental Affairs; (4) totally revam ped the Vital Records website; (5) learned everything he could about the LEERS and understood the technology behind it; and (6) Mr. Khalid was the person Mr. George went to for presentations, reports, and legislative im pacts. 84 DHH having articulated race-neutral reasons for hiring Ms. Tran and Mr. Khalid instead of Plaintiff, the burden shifts to Plaintiff to show DHH’s reasons for hiring Ms. Tran and Mr. Khalid rather than her are m ere pretext. 85 Plaintiff may prove pretext by “either showing that a discrim inatory reason m otivated the defendant or by showing that the proffered reason is unworthy of credence.”86 “To overcom e a m otion for sum m ary judgm ent of course, the plaintiff need only produce eviden ce to create a genuine issue of m aterial fact concerning pretext.”87 To carry her burden, “the plaintiff must produce substantial evidence of pretext.”88 “Eviden ce that the proffered reason is unworthy of credence m ust be enough to support a reasonable inferen ce that the proffered reason is false; a m ere shadow of doubt is insufficient.”89 Further, the Fifth Circuit has consistently 83 R. Doc. 88-4 at 218:10 – 223:17. Id. at 152:6– 153:21. 85 By ers, 20 9 F.3d at 425– 26. 86 Moore v. Eli Lilly & Co., 990 F.2d 812, 815 (5th Cir. 1993) (internal citations om itted). 87 Id. 88 Auguster v. Verm illion Par. Sch. Bd., 249 F.3d 40 0 , 40 2– 0 3 (5th Cir. 20 0 1). 89 Id. 84 15 held that a plaintiff's “subjective belief” of discrim ination alone is insufficient to establish pretext. 90 Plaintiff points to Devin George’s deposition testim ony in which Mr. George “acknowledged that prom otions m ust be m ade subject to Civil Service Rule [22] and that he is the appointing authority for Vital Records and is responsible for hiring, firing and disciplining em ployees.”91 She argues that, because she considers herself the “better choice,” and Rule 22 requires that “selection and advancem ent [be m ade] on the basis of relative ability, knowledge and skills after a fair and open com petition,”92 she should have been prom oted over Ms. Tran and Mr. Khalid in accordance with Rule 22. The Court finds this argum ent without m erit, as it is based on Plaintiff’s subjective belief that she was m ore qualified for the positions than Ms. Tran and Mr. Khalid. 93 That she believes she was better suited for the positions than the two candidates DHH ultim ately hired does not dem onstrate DHH’s reasoning for prom oting Ms. Tran and Mr. Khalid is “unworthy of creden ce.” Plaintiff has not provided “substantial evidence” of pretext. 94 Because Plaintiff has failed to show DHH’s legitim ate, non-racial reason for not prom oting Plaintiff is pretext, the Court will grant judgm ent in favor of DHH. Accordingly; CON CLU SION IT IS ORD ERED that Defendant Louisiana Departm ent of Health and Hospitals’ m otion for sum m ary judgm ent be and hereby is GRAN TED . 95 90 Ray v. Tandem Com puters, Inc., 63 F.3d 429, 434 (5th Cir. 1995). Doc. 10 3 at 15. 92 Id. at 14. 93 Ray v. Tandem Com puters, Inc., 63 F.3d 429, 434 (5th Cir. 1995). 94 See Auguster, 249 F.3d at 40 2– 0 3. 95 R. Doc. 88 . 91 R. 16 IT IS FU RTH ER ORD ERED that there be judgm ent in favor of Defendant Louisiana Departm ent of Health and Hospitals and against Plaintiff Deneen Montgom ery-Sm ith. N e w Orle a n s , Lo u is ian a, th is 6 th d ay o f Au gu s t, 2 0 18 . ________ _____________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 17
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
