Dean Vicknair v. LA Dept of Public Sfty & Corr, et al

Filing

UNPUBLISHED OPINION FILED. [13-30244 Affirmed] Judge: RHB , Judge: ECP , Judge: CH. Mandate pull date is 02/25/2014 [13-30244]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-30244

FILED
February 4, 2014
Lyle W. Cayce
Clerk

DEAN VICKNAIR,
Plaintiff – Appellant

v.

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
STATE OF LOUISIANA,
Defendants – Appellees

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:10-CV-551
Before BARKSDALE, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Dean Vicknair filed this action against the Louisiana Department of
Public Safety and Corrections (DPS) and the State of Louisiana, claiming
violations of Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et seq., and
Louisiana Revised Statutes § 23:967. Defendants were awarded summary
judgment under Federal Rule of Civil Procedure 56 on Vicknair’s retaliatoryreassignment and constructive-discharge claims, but denied it on whether he

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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had been suspended in retaliation for filing his first of two complaints with the
Equal Employment Opportunity Commission (EEOC).

During discovery,

Vicknair failed repeatedly to produce certain documents for DPS; it was
awarded sanctions. At trial on the one remaining claim (retaliation for filing
first EEOC complaint), the court excluded, based on attorney-client privilege,
an e-mail between the assistant to the superintendent of DPS and its general
counsel.

After Vicknair completed his case-in-chief, Defendants moved

successfully under Rule 50 for judgment as a matter of law.

Vicknair

challenges the summary judgment, sanctions, exclusion of the e-mail, and
judgment as a matter of law. AFFIRMED.
I.
Vicknair began working at DPS in 1989, as a temporary, part-time clerk
in the records unit of the office of motor vehicles.

Subsequently, he was

employed full time, and promoted several times, first to work in insurance
compliance, and then in more technical roles, as DPS began using the Internet.
In 1999, Vicknair moved to the data processing unit, as a computer-support
specialist, to develop a website for DPS. He was promoted to programmer and
worked on Lotus Notes administration.
In February 2004, Vicknair left DPS to work at the Department of
Transportation and Development. That June, he testified as part of DPS’
internal investigation (sexual harassment) against his former DPS manager,
Selvaratnam.
In November 2005, in the wake of Hurricane Katrina, DPS rehired
Vicknair.

Approximately three and one-half years later, in April 2009,

Selvaratnam, now DPS’ IT director, reassigned Vicknair to fill a vacancy.
According to Vicknair, the new position had “the same responsibilities”, but he
felt “micromanaged” by his supervisor, Artall.
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Almost immediately after the reassignment, there was tension between
Artall and Vicknair, including one episode in which Artall refused to sign leave
slips when Vicknair sought leave for a death in the family, and another, in
which Artall erroneously accused Vicknair of failing to complete assignments.
Vicknair approached Tillman, compliance program director for DPS’
equal-employment-opportunity section (DPS’ EEOC director), and Boudreaux,
DPS’ undersecretary for the office of management and finance, claiming a
hostile-work environment. Boudreaux transferred Vicknair temporarily from
Artall’s supervision, pending an investigation. Several days later, Vicknair
filed grievances with DPS against Artall, for a hostile-work environment; the
next week, against Selvaratnam, for retaliation.
In late June, Vicknair accepted DPS’ proposed solution for his grievance
against Artall: for Artall, people-skills and management training; for Vicknair,
transfer to a different supervisor. DPS later closed, for insufficient evidence,
Vicknair’s grievance against Selvaratnam.
In late August, Vicknair began the process to file his first EEOC
complaint, including delivering the results of his own investigation—a
timeline—to Tillman, DPS’ EEOC director, claiming retaliatory reassignment
by Selvaratnam because of Vicknair’s participation in the 2004 investigation
of Selvaratnam. He signed the complaint in early September.
That

November,

DPS

internal-affairs

investigators

interviewed

Vicknair, concerning his inclusion of certain e-mails in the timeline he had
delivered to Tillman. Vicknair admitted using an encrypted database—the
“mail-journaling database”—to which only he had access, to locate and copy emails from third parties within DPS.

One such e-mail was from Jones,

confidential assistant to DPS’ deputy secretary Edmonson, to DPS’ general
counsel, commenting on the internal investigation of Selvaratnam. As a result
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of that interview with Vicknair, on 4 November 2009, undersecretary
Boudreaux suspended Vicknair with pay, pending a full investigation.
That 23 November, Vicknair filed a second EEOC complaint. He claimed
the suspension constituted retaliation for filing his first EEOC complaint and
stated he would most likely be terminated after his suspension.
By a 21 December letter of intent to terminate, Boudreaux informed
Vicknair he had violated DPS’ IT policies (Email & Internet Usage, User
Responsibilities) and other DPS policies (Lawful Orders, Conduct Unbecoming
an Employee). In his 22 December response to Boudreaux’s letter, Vicknair
elected to retire on 26 December; in a 28 December e-mail to the EEOC,
Vicknair attached that response to Boudreaux’s letter, requesting it be
included as an amendment to his second EEOC complaint.
Vicknair filed this action in August 2010.

He claimed harassment,

retaliation, and a hostile-work environment, in violation of Title VII and
Louisiana Revised Statutes § 23:967. Prior to then, in early November 2009,
DPS internal-affairs investigators sought initially to secure documents
Vicknair had copied. DPS continually requested return of the e-mails, first as
part of that internal investigation, and later in requests for production of
documents in this action. Document discovery closed in September 2011.
In October 2011, coinciding with the ongoing discovery disputes, DPS
moved for summary judgment on all claims. In May 2012, DPS expressed
concern to Vicknair’s counsel over Jones’ e-mail to DPS’ general counsel being
included as an exhibit in support of Vicknair’s opposition to DPS’ second
summary-judgment motion. DPS informed Vicknair of its intent to move to
compel if it did not receive confirmation that all requested documents had been
produced. By late June 2012, DPS still had not received copies of the requested
files or access to Vicknair’s electronic database.
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Therefore, that July, DPS moved to compel production and requested a
protective order and sanctions. The court granted DPS’ motion in October
2012, requiring Vicknair to produce a paper copy of every e-mail and a copy of
the drive on which they were stored, as well as awarding DPS $250 in court
costs and attorney’s fees, respectively.
Earlier that year, in February, summary judgment had been awarded
against

Vicknair’s

retaliatory-reassignment

and

constructive-discharge

claims. It had been denied, however, for his claim, based on his second EEOC
complaint, that DPS retaliated against him by suspending him for filing his
first EEOC complaint (claimed retaliation by Selvaratnam).
Trial was held in February 2013 on that remaining claim. In his casein-chief, Vicknair presented evidence that DPS employees expected him, as
Lotus Notes administrator, to be able to access their accounts, although he was
not authorized to peruse employee e-mails without prior authorization.
Vicknair testified Selvaratnam despised him, should never have been
promoted, and should have been fired. Vicknair maintained he had done
nothing unethical, and, as the systems administrator, “had the keys to the
kingdom”.
During his case-in-chief, when Vicknair attempted to introduce Jones’ email to DPS’ general counsel, DPS objected, noting its repeated attempts to
have the document excluded on privilege grounds.

The court questioned

Vicknair’s counsel; and, in support of the e-mail’s admission, Vicknair provided
the following offer of proof: he had obtained the file while searching the mailjournaling database, filtering for his name, to find out “[w]hat else have they
hidden from me?”. The court ruled the attorney-client privilege applied and,
therefore, did not allow the e-mail in evidence.

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Also during Vicknair’s case-in-chief, DPS’ deputy secretary, Edmonson,
was called, out of order, as a witness by DPS. He testified he had no qualms
about reprimanding or even firing friends if they disobeyed rules, and he did
not hold grudges against employees for filing grievances.
As discussed supra, Boudreaux suspended Vicknair on 4 November 2009
and signed the 21 December 2009 letter of intent to terminate him. The
decisions to suspend and terminate Vicknair, conveyed by Boudreaux, were at
the core of his retaliation claim being tried. Nevertheless, he did not call
Boudreaux as a witness.
After Vicknair completed his case-in-chief, DPS moved under Rule 50 for
judgment as a matter of law. In granting the motion, the court ruled: “[T]he
plaintiff has not established that there is any evidence that should go to the
jury, upon which a reasonable jury could make a decision that the appointing
authority, Ms. Boudreaux, made the decision to suspend Mr. Vicknair with
pay, pending an investigation[, as retaliation for Vicknair’s having] testified
previously . . . or [having] filed a grievance against Mr. Selvaratnam or against
Mr. Artall”.
II.
Vicknair challenges: the summary judgment against his retaliatoryreassignment and constructive-discharge claims; the discovery sanctions; the
Jones-e-mail’s exclusion at trial; and the judgment as a matter of law on his
retaliation claim for filing his first EEOC complaint.
For the three merits claims, and although Vicknair’s briefing is unclear,
we construe his briefs to advance three inter-related and overlapping theories
of retaliation:

retaliatory reassignment, constructive discharge, and

retaliatory suspension. As discussed, summary judgment was awarded DPS

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for the first two issues; for the third, it was awarded judgment as a matter of
law.
Vicknair maintains he asserted a claim on another ground: imposition
of a hostile-work environment. Vicknair presented evidence of a hostile-work
environment,

however,

as

part

of

his

retaliatory-reassignment

and

constructive-discharge theories, rather than as a separate claim. See, e.g.,
Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992) (treating
constructive discharge as aggravated hostile-work-environment claim), aff’d,
511 U.S. 244 (1994).
And, although Vicknair cites Louisiana Revised Statutes § 23:967 as a
basis for relief in his complaint, there is no mention of that statute in his briefs.
Therefore, the state-law issues are not considered. E.g., Adams v. Unione
Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004) (“Issues not raised
or inadequately briefed on appeal are waived.”) (citations omitted).
A.
A summary judgment is reviewed de novo, applying the same standard
as did the district court. E.g., Feist v. La., Dep’t of Justice, Office of the Att’y
Gen., 730 F.3d 450, 452 (5th Cir. 2013) (citation omitted). Summary judgment
is proper when “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). In
determining whether to grant summary judgment, the court views the facts
and evidence in the light most favorable to the non-movant, Vicknair. E.g.,
Dameware Dev., LLC v. Am. Gen. Life Ins. Co., 688 F.3d 203, 206–07 (5th Cir.
2012) (citation omitted).
1.
“The antiretaliation provision [42 U.S.C. § 2000e-3(a)] seeks to prevent
employer interference with unfettered access to Title VII’s remedial
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mechanisms.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (citation and internal quotation marks omitted). Title VII does not
prohibit all retaliation, but rather those employment actions that are
“materially adverse, one[s] that would dissuade a reasonable worker from
making or supporting a charge of discrimination”. Stewart v. Miss. Transp.
Comm’n, 586 F.3d 321, 331 (5th Cir. 2009) (alterations, citation, and internal
quotation marks omitted).

“A plaintiff establishes a prima facie case of

retaliation by showing (i) he engaged in a protected activity, (ii) an adverse
employment action occurred, and (iii) there was a causal link between the
protected activity and the adverse employment action.” Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 657 (5th Cir.) (citation omitted), cert. denied, 133
S. Ct. 136 (2012). Once plaintiff makes a prima facie showing, the burden
shifts to the employer to present “a legitimate, non-discriminatory or nonretaliatory reason” for the challenged action. McCoy v. City of Shreveport, 492
F.3d 551, 557 (5th Cir. 2007) (citations omitted). The burden on the employer
entails production rather than persuasion.

Id. (citation omitted).

If the

employer presents a legitimate reason, plaintiff “bears the ultimate burden of
proving that the employer’s proffered reason is not true but instead is a pretext
for the real discriminatory or retaliatory purpose”. Id. (citation omitted).
In the context of summary judgment, “plaintiff’s subjective belief,
without more, that an adverse employment action was retaliatory is
insufficient to survive summary judgment”. Gollas v. Univ. of Tex. Health Sci.
Ctr. at Hous., 425 F. App’x 318, 321 (5th Cir. 2011) (citing Byers v. Dall.
Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000)).
Where, as here for the retaliatory-reassignment claim, lateral
reassignment constitutes the claimed adverse employment action, the
surrounding circumstances are considered. E.g., Aryain v. Wal-Mart Stores
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Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008) (finding such transfer did not
constitute adverse employment action where there was no change in pay and
father of college-age plaintiff requested transfer).

There was no evidence

Vicknair suffered a reduction in salary; instead, he received a change in his
salary range. Likewise, he did not present evidence of a loss of standing with
his fellow employees, a decrease in benefits, a loss of prestige, or a lessening of
responsibilities. See, e.g., Magiera v. City of Dallas, 389 F. App’x 433, 438 (5th
Cir. 2010) (citing, inter alia, Stewart, 586 F.3d at 332).
Even assuming arguendo the reassignment constitutes an adverse
employment action, Vicknair must establish a causal link between the
protected activity (his involvement in the 2004 investigation), and the adverse
employment action (in 2009). Although Vicknair believed his reassignment in
April 2009 to being under Artall was in retaliation for his participation in the
2004 sexual-harassment investigation of Selvaratnam, his subjective belief is
not enough to establish the requisite causal link between the adverse
employment action and the protected conduct.

Accordingly, summary

judgment against this claim was proper.
2.
Vicknair was required to exhaust administrative remedies, by filing an
EEOC complaint, before seeking judicial relief because “a primary purpose of
Title VII is to trigger the investigatory and conciliatory procedures of the
EEOC, in attempt to achieve non-judicial resolution of employment
discrimination claims”. Pacheco v. Mineta, 448 F.3d 783, 788–89 (5th Cir.
2006) (citation omitted). In district court, DPS maintained the second EEOC
complaint, for retaliation, did not put DPS on the requisite notice of the
constructive-discharge claim. The court pretermitted the question of whether

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Vicknair exhausted administrative remedies and dismissed the constructivedischarge claim on the merits.
In any event, we “may affirm the district court’s decision on any basis
presented to the district court”. Haverda v. Hays Cnty., Tex., 723 F.3d 586, 591
(5th Cir. 2013) (citation and internal quotation marks omitted). Accordingly,
we turn first to exhaustion vel non.
Although EEOC claims are construed somewhat broadly to “protect[]
unlettered lay persons making complaints”, that broad construction extends
“as far as, but no further than, the scope of the EEOC investigation which could
reasonably grow out of the administrative charge”. Fine v. GAF Chem. Corp.,
995 F.2d 576, 578 (5th Cir. 1993) (citation and internal quotation marks
omitted). “However, ‘a charging party’s rights should [not] be cut off merely
because he fails to articulate correctly the legal conclusion emanating from his
factual allegations.’” Simmons-Myers v. Caesars Entm’t Corp., 515 F. App’x
269, 272 (5th Cir.) (alteration in original) (quoting Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970)), cert. denied, 134 S. Ct. 117
(2013). Instead, the court asks whether the charge “stated sufficient facts to
trigger an EEOC investigation and to put an employer on notice of the
existence and nature of the charges”. Id. at 272–73. (citations omitted).
Even assuming Vicknair adequately amended his second EEOC
complaint by forwarding to the EEOC a copy of his response to Boudreaux’s
letter of intended termination, the amended complaint cannot be construed so
broadly as to encompass the constructive-discharge claim. Vicknair’s second
EEOC complaint expressly claimed retaliation, and nothing else, for filing his
first EEOC complaint. The reasonable scope of an EEOC investigation of that
second EEOC complaint would encompass DPS’ response to Vicknair’s filing
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journaling system and DPS’ subsequent decision to suspend or terminate
Vicknair. Nothing in the facts alleged in the second EEOC complaint put DPS
on notice of a possible constructive-discharge claim. Therefore, Vicknair failed
to exhaust administrative remedies and cannot seek judicial relief on that
claim. Summary judgment was proper.
B.
We review for abuse of discretion sanctions imposed by the district court
under Rule 37(b) (failure to comply with a court’s discovery order). E.g., Smith
& Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012).
Conclusions of law are reviewed de novo; findings of fact, for clear error. Id.
(citation omitted).

Rule 37(b) permits, inter alia, striking pleadings,

dismissing the action, and rendering a default judgment against the
noncompliant party. Fed. R. Civ. P. 37(b)(2)(A). Sanctions must be both just
and specifically related to the claim at issue in the discovery order. KeyBank
Nat’l Ass’n v. Perkins Rowe Assocs., LLC, No. 12-30998, 2013 WL 4446820, at
*5 (5th Cir. 21 Aug. 2013) (per curiam) (citing Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). The movant for
sanctions need not demonstrate willfulness for “sanctions which are less harsh
than a dismissal or default judgment”. Chilcutt v. United States, 4 F.3d 1313,
1322 (5th Cir. 1993).
After well over a year of attempting to secure production of the e-mail
correspondence copied from the mail-journaling database, DPS moved to
compel production and simultaneously moved for a protective order and
sanctions. In granting the motion and awarding to DPS $250 in attorney’s fees
and costs, respectively, the district court noted DPS’ multiple attempts to
obtain the information and the inconsistency between Vicknair’s claim he did
not have access to the e-mails and his inclusion of a confidential, undisclosed
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e-mail (Jones’ e-mail to DPS’ general counsel) in his opposition to DPS’ second
summary-judgment motion.

The court also rejected Vicknair’s proposed

solutions, including having DPS search its own systems for a log file to track
Vicknair’s previous access or for DPS’ attorneys to drive to Baton Rouge with
a laptop to have Vicknair transfer the database digitally. The court granted
minimal sanctions in response to Vicknair’s refusal to satisfy his discovery
obligations. Those sanctions were both just and related to the discovery order.
There was no abuse of discretion.
C.
Evidentiary rulings by the district court are reviewed for abuse of
discretion. E.g., United States v. Pruett, 681 F.3d 232, 243 (5th Cir. 2012); see
Fed. R. Evid. 103 (Rulings on Evidence). “The application of the attorney-client
privilege is a question of fact, to be determined in the light of the purpose of
the privilege and guided by judicial precedents.” United States v. Nelson, 732
F.3d 504, 517–18 (5th Cir. 2013) (citation and internal quotation marks
omitted); see Fed. R. Evid. 501 (Privilege in General).

The application of

controlling law is reviewed de novo; factual findings, for clear error. Nelson,
732 F.3d. at 518 (citation omitted).
The party asserting privilege bears the burden to show:

“(1) a

confidential communication; (2) to a lawyer or subordinate; (3) for the primary
purpose of securing a legal opinion, legal services, or assistance in the legal
proceeding”. Id. (citing United States v. Robinson, 121 F.3d 971, 974 (5th Cir.
1997)). Courts also require the party asserting privilege to have a reasonable
expectation the communication is confidential, either by the intrinsic nature of
the communication or the subjective intent of the assertor. Robinson, 121 F.3d
at 976 (citations omitted). The fact a communication takes place between a
lawyer and a client is not enough, alone, to invoke the privilege. Id. (citation
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omitted).

Likewise, the privilege must be asserted specifically as to a

particular document. See In re Santa Fe Int’l Corp., 272 F.3d 705, 713 (5th Cir.
2001).
At trial, when Vicknair attempted to introduce the e-mail from Jones to
DPS’ general counsel, DPS objected, claiming the document was both “subject
to attorney-client privilege” and “not presented to [DPS] in the regular course
of discovery”. After the court found Jones’ e-mail was “an attorney-client
document”, Vicknair made an offer of proof: he had come upon the document
while searching the mail-journaling database and had printed the e-mail
because it referenced his case. The court ruled: “[I]t’s still attorney-client
privilege. This was directed by a client to the attorney and another client”.
There is no reversible error. The confidential document was between the
“confidential assistant” to DPS’ deputy secretary and its general counsel,
concerning a pending internal investigation.
D.
Judgment as a matter of law under Rule 50 is proper when “a party has
been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for
the party on that issue”. Fed. R. Civ. P. 50(a)(1). The district court’s decision
to grant or deny a motion for judgment as a matter of law is reviewed de novo.
E.g., Cardenas v. United of Omaha Life Ins. Co., 731 F.3d 496, 499 (5th Cir.
2013) (citation omitted). We apply the same standards as did the district court,
reviewing all evidence in the record, drawing reasonable inferences in favor of
the non-movant, and refraining from encroaching upon the province of the jury
in making credibility determinations or weighing evidence. E.g., Brennan’s
Inc. v. Dickie Brennan & Co., 376 F.3d 356, 362 (5th Cir. 2004) (citations
omitted).
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Where the person who makes the decision to terminate an employee is
not the person accused of harboring retaliatory animus, plaintiff is required to
“demonstrate that those with discriminatory intent had influence or leverage
over the official decisionmaker”, in order to “impute . . . discriminatory
attitudes to the formal decisionmaker”. Russell v. Univ. of Tex. of Permian
Basin, 234 F. App’x 195, 203 (5th Cir. 2007) (alterations and internal quotation
marks omitted) (quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226
(5th Cir. 2000)); see also Staub v. Proctor Hosp., 131 S. Ct. 1186, 1190 n.1, 119394 (2011) (applying similar standard in Uniformed Services Employment and
Reemployment Rights Act context, including providing description of fable
underlying cat’s-paw theory, referenced infra); LeMaire v. La. Dep’t of Transp.
and Dev., 480 F.3d 383, 390 (5th Cir. 2007) (“Evidence of [Selvaratnam’s]
specific involvement in the decision would be significant, since [Selvaratnam]
had the greatest motivation to retaliate against [Vicknair]”.).
To develop a prima facie case of retaliation based on Vicknair’s filing his
first EEOC complaint, he had to show an adverse employment action that was
linked to that complaint. Accepting DPS’ decisions to suspend and terminate
Vicknair as requisite adverse employment actions, he was required to show a
causal link between his first EEOC complaint and those decisions. As noted,
Boudreaux, who conveyed those decisions, was not called as a witness by
Vicknair in his case-in-chief, after which judgment as a matter of law was
granted. Arguably, as the person who could have served as the most likely
link, or “cat’s paw”, between Vicknair and Selvaratnam, perhaps Boudreaux
could have provided testimony to allow a reasonable jury to find for Vicknair.
The second possible link, Edmonson, called out of turn by DPS, testified he had
no qualms about reprimanding or firing friends if they disobeyed the rules, and

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that he did not hold grudges against employees for filing grievances or
complaints.
Drawing all inferences in favor of Vicknair, a reasonable jury lacked a
legally sufficient basis to link Boudreaux, as the decisionmaker, to a retaliatory
motive. Instead of supporting retaliation, trial testimony served to reinforce
the extensiveness and seriousness of Vicknair’s unauthorized access to DPS emails, and thus the legitimacy of DPS’ decisions to suspend and terminate
Vicknair for his violations of internal policies. Accordingly, judgment as a
matter of law was proper on the claim of retaliation for Vicknair’s filing his
first EEOC complaint.
III.
For the foregoing reasons, the sanctions order and judgment are
AFFIRMED.

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