Yancy v. US Airways Inc et al

Filing 63

ORDER AND REASONS granting 56 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 7/20/2011. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHELLE YANCY

CIVIL ACTION

VERSUS

NO. 10-983

U.S. AIRWAYS, INC.

SECTION "F"
ORDER & REASONS

Before the Court is the defendant U.S. Airway, Inc.’s motion
for summary judgment.

For the following reasons, the motion is

GRANTED.
Background
This case arises out of Michelle Yancy’s employment with U.S.
Airways.

After working for the airline for approximately seven

years, Yancy took on a position as customer service agent at New
Orleans International Airport in August 2008.

Yancy assisted

customers at the ticket counter, curbside, in baggage claim, and
with boarding.

She, like her employer’s other customer service

agents, is a member of the union that represents U.S. Airways’
passenger service employees, the Communication Workers of America.
During her new position she encountered conflicts with her coworkers and supervisors, eventually leading to this lawsuit against
U.S. Airways.

Yancy alleges claims for retaliation under Title

VII, § 1981, and the state whistleblower statute, as well as
intentional infliction of emotional distress.

1

I.
Mean-Spirited Facebook Post Results in First EEOC Charge
In June 2009, Yancy complained to Kim Sharpe, a U.S. Airways
Human

Resources

manager,

that

a

customer

service

supervisor,

Michael Macaluso, posted a photograph of her on his Facebook page.
The photo showed Yancy hunched over her desk with her underwear
visible.

She appeared to be sleeping.

Yancy explains that the

photo showcased at least part of her buttocks and the meager lines
of her thong underwear; she further explains that she was crouched
over the desk from the pain of yet-to-be-discovered gall bladder
problems.

The photograph may have been on Facebook as early as

October 2008, but Yancy did not notify Human Resources until after
she discovered the photo eight months later.

The parties agree

that U.S. Airways’ investigation immediately followed Yancy’s
complaint.

They also agree that the investigation was thorough.

The inquiry resulted in the discipline of three employees:
Macaluso, along with Christian Novak, a shift manager, and Gregory
Oden, another customer service agent.

Although Sharpe may have

recommended that these employees be terminated or suspended, they
all received some alternative, possibly lesser, form of discipline.
Dissatisfied that U.S. Airways did not fire Macaluso, Yancy filed
a charge of discrimination with the EEOC at the end of June 2009,
alleging that she was subject to sexual harassment based on the
Facebook photograph. Yancy then left on medical leave from July 1,

2

2009 to September 12, 2009.

She contends that Novak called her

five or six times, pressuring her to return.
II.
A Lewd Text Message Leads to Plaintiff’s Second EEOC Charge
While Yancy was on medical leave, U.S. Airways began to deal
with potential sexual harassment issues at the New Orleans airport
and required its employees to participate in training sessions.
Yancy was scheduled to attend a training on September 25, two weeks
after her return from leave. When Yancy switched shifts with a coworker on this date, her supervisors called her to confirm her
attendance.
Around

this

time,

the

same

Mr.

Oden

reported

to

Human

Resources that Yancy had sent him a lewd text message several
months before.

Disturbingly, the text message contained a picture

of a penis tattooed to look like a snake.

As it did regarding

Yancy’s

investigated

complaint,

complaint.1

U.S.

Airways

promptly

Oden’s

On the day of her scheduled training, Yancy was called

into a meeting with Sharpe about the lewd text message. Surprised,
Yancy denied having sent the message but conceded that the phone
number listed on the text was formerly hers.

The parties agree

that the meeting was heated and contentious; Sharpe felt Yancy to
be uncooperative and belligerent.

1

Yancy, in the same breath, disputes and affirms that U.S.
Airways investigated the complaint against her. It is clear from
the facts she alleges that some sort of investigation took place.
3

While U.S. Airways investigated the lewd message, it placed
Yancy on a temporary paid suspension. In October 2009, Yancy filed
a second charge of discrimination with the EEOC, contending that
the investigation prompted by the lewd text to Oden and her
suspension amounted to sex and race discrimination, as well as
retaliation for her first complaint to the EEOC.
III.
Plaintiff’s Furlough Produces a Third Charge Before the EEOC
U.S. Airways selected Yancy for furlough in either 2009 or
2010.

According to U.S. Airways, it conducted a company-wide

“reduction in force” of nearly 1,000 employees in February 2010 due
to its reduction in flight schedules and routes and other changes.
600 reductions were to customer service and rap service positions.
U.S.

Airways

requirements

maintains
outlined

in

that
the

it

followed

collective

the

administrative

bargaining

agreement

between it and the union, in determining which customer service
agents to discharge.

Applying objective criteria outlined in the

agreement, U.S. Airways claims that it selected Yancy and one other
employee at the New Orleans airport for furlough based on their
junior status; indeed, they were the two least senior customer
service agents.
Yancy asserts that she was selected for furlough at the close
of the investigation about her involvement in sending the lewd
message.

Yancy admits that she was given the option to apply to

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another

position

within

U.S.

Airways

interested in remaining in New Orleans.

but

that

she

was

only

Despite emphasizing her

interest in remaining a customer service agent in New Orleans, a
position for which was listed as an option, she was not granted an
interview.
Yancy’s furlough began in mid-February 2010.

About two weeks

later, Yancy filed a third EEOC charge, alleging that U.S. Airways
selected her for furlough as retaliation for filing the first two
EEOC charges.

But U.S. Airways called Yancy back to work on a

part-time basis in May 2010.

Yancy resigned from employment five

months later, in October 2010.
IV.
Yancy Sues U.S. Airways
In March 2010, while her third EEOC charge was still pending,2
Yancy sued her employer, alleging claims for retaliation under
Title VII, § 1981, and Louisiana’s whistleblower statute; tortious
interference

with

an

employment

infliction of emotional distress.

contract;

and

intentional

She seeks compensatory damages

for her federal claims, declaratory judgment on her whistleblower
claim, general, special, and punitive damages under Louisiana law,
as well as statutory penalties, attorney’s fees, and statutory
interest.

2

It appears that Yancy’s third EEOC charge remains
pending. Her first two charges were unsuccessful.
5

In August 2010, Judge Zainey granted the defendant’s motion to
dismiss in part, dismissing only plaintiff’s claim of tortious
interference with contract.3

Her lawsuit now before this Court,

U.S. Airways moves for summary judgment on plaintiff’s remaining
claims.
Law & Analysis
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

A genuine issue

of fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that mere argued existence of a factual
dispute does not defeat an otherwise properly supported motion.
See id.

Therefore, "[i]f the evidence is merely colorable, or is

not significantly probative," summary judgment is appropriate. Id.
at 249-50 (citations omitted).

Summary judgment is also proper if

the party opposing the motion fails to establish an essential

3

For some reason, he has since recused himself.
6

element of his case.
322-23 (1986).

See Celotex Corp. v. Catrett, 477 U.S. 317,

In this regard, the non-moving party must do more

than simply deny the allegations raised by the moving party.

See

Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649
(5th Cir. 1992).

He instead must come forward with competent

evidence, such as affidavits or depositions, to buttress his
claims. Id. Hearsay evidence and unsworn documents do not qualify
as competent opposing evidence.

Martin v. John W. Stone Oil

Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

Finally, in

evaluating the summary judgment motion, the Court must read the
facts

in

the

light

most

favorable

to

the

non-moving

party.

Anderson, 477 U.S. at 255.
II.
U.S.

Airways

retaliation

first

under

challenges

Title

whistleblower statute.

VII,

§

the

plaintiff’s

1981,

and

the

claims

of

Louisiana

The standard of proof for Title VII claims

also applies to § 1981 claims, Shackelford v. Deloitte & Touche,
LLP, 190 F.3d 398, 403 n. 2 (5th Cir. 1999), and claims under
Louisiana’s whistleblower statute.

Smith v. AT&T Solutions, Inc.,

90 F. App’x 718, 723 (5th Cir. 1994). These retaliation claims are
governed either by the McDonnell Douglas burden-shifting framework
or the mixed-motive framework in Price Waterhouse Coopers.
v.

Xerox

Corp.,

602

F.3d

320

(5th

Cir.

2010).

Smith

Plaintiff’s

complaint and briefing on summary judgment suggests that the

7

burden-shifting framework is appropriate; she argues that her
employer

retaliated

against

her

for

her

EEOC

activities

and

repeatedly rejects any lawful justification for its actions.4

See

generally id.
A.
Under the McDonnell Douglas burden-shifting framework, Yancy
must first show to a prima facie case of retaliation.
she must establish that:

To do so,

(1) she participated in an activity

protected by Title VII; (2) her employer took an adverse employment
action against her; and (3) a causal connection exists between the
protected activity and the adverse employment action.

McCoy v.

City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).

It is

not seriously disputed that the plaintiff engaged in a protected
activity by filing three charges with the EEOC.
An adverse employment action is one that might dissuade a
reasonable worker from making a discrimination claim; thus the
plaintiff must show that “a reasonable employee would have found
the challenged action materially adverse.”
Fe Ry. v. White, 548 U.S. 53, 67 (2006).

Burlington N. & Santa
Yancy contends that the

airline retaliated against her first EEOC charge by suspending her

4

Regardless, her claim would also fail under the mixedmotive framework. Aside from not establishing a prima facie case
of retaliation, the plaintiff does not show that her EEOC charge
was a motivating factor in either her suspension or furlough.
See Smith v. Xerox Corp., 602 F.3d 320, 326 (5th Cir. 2004).
8

while it investigated her involvement in sending a vulgar text
message.5

Ignoring

any

effect

of

her

own

misdeeds

on

her

suspension, this action could be viewed as materially adverse, at
least for the purposes of summary judgment:

Yancy’s paycheck

lagged during her suspension, and it was unclear for almost two
weeks

whether

she

would

be

paid

at

all;

she

uncertainty with regard to her future employment.6

likely

faced

But see Watts

v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999) (“[E]mployment
actions

are

not

adverse

where

responsibility remain the same.”).

pay,

benefits,

and

level

of

At best, whether Yancy indeed

suffered an adverse employment action remains unpersuasive on this
record.
To establish a causal connection between this potentially
adverse action and her second EEOC complaint, Yancy emphasizes the

5

Yancy does not contest her employer’s argument that it
did not retaliate against her for her second EEOC charge by
selecting her for furlough.
6

Yancy also draws attention to more generalized negative
treatment at work. Although it is unclear, it seems that she
felt like her employer exercised less patience with her than she
felt she was owed. The Court cautions that “[t]he
antiretaliation provision seeks to prevent employer interference
with ‘unfettered access’ to Title VII's remedial mechanisms. It
does so by prohibiting employer actions that are likely ‘to deter
victims of discrimination from complaining to the EEOC,’ the
courts, and their employers. And normally petty slights, minor
annoyances, and simple lack of good manners will not create such
deterrence.” Burlington, 548 U.S. at 68 (internal citations
omitted). Indeed, the plaintiff apparently did not feel any
deterrence pressures; she filed successive EEOC charges with each
passing year.
9

temporal link between the two. But with respect to her suspension,
the U.S. Court of Appeals for the Fifth Circuit has held that “‘the
mere fact that some adverse action is taken after an employee
engages in some protected activity will not always be enough for a
prima facie case.’”

Roberson v. Alltell Info. Servs., 373 F.3d

647, 655 (5th Cir. 2004) (quoting Swanson v. Gen. Servs. Admin.,
110 F.3d 1180, 1188 n.3 (5th Cir. 1997).
is not enough.

See id.

Temporal proximity alone

Nothing in the record establishes that

Sharpe’s decisions to investigate the complaint against Yancy or to
suspend her were influenced by any improper motive.
link is tenuous at best.

The causal

The Court is not persuaded that the

plaintiff has established a prima facie case of retaliation.

But

in any event, Yancy’s retaliation claims fall short on the final
steps of the burden-shifting framework.
B.
Under the next step of the burden-shifting framework, U.S.
Airways

a

legitimate,

non-discriminatory reason for the employment action.

492 F.3d at

557.

must

carry

its

burden

by

articulating

The burden then returns to Yancy to establish that her

employer's stated reason is pretext for the real (retaliatory)
purpose.

The Fifth Circuit has “consistently held that in

Id.

retaliation

cases

where

the

defendant

has

proffered

a

nondiscriminatory purpose for the adverse employment action the
plaintiff

has

the

burden

of

10

proving

that

‘but

for’

the

discriminatory purpose [s]he would not have been [suspended].”
Pineda v. United Parcel Serv., Inc., 360 F.3d 483 (5th Cir. 2004).
U.S. Airways has articulated non-discriminatory reasons for
temporarily suspending the plaintiff.

U.S. Airways initiated the

lewd text investigation after the complaint of Oden. That Oden may
have harbored some animus toward Yancy does not discount that all
facts available to U.S. Airways at the time it was notified of the
text message, from a cell number that was hers, pointed toward
Yancy’s culpability; or that U.S. Airways, acting within the bounds
of its sexual harassment policy, suspended her for a brief period
of time to investigate the Oden complaint.

U.S. Airways’ decision

to suspend, rather than merely discipline, seems supported by
Sharpe’s belief that Yancy was uncooperative and belligerent. U.S.
Airways has met its intermediate burden.
With the burden returned to Yancy, her claims of pretext fall
short of their target.

She is unable to show that but for her EEOC

charges the conceivably adverse employment action here would not
have otherwise taken place.

Title VII, which in part protects

employees from retaliatory conduct for ultimate adverse employment
action by employers, “was not intended to immunize insubordinate
[or] disruptive . . . behavior at work.”

Smith v. Tex. Dep’t of

Water Res., 818 F.2d 363, 366 (5th Cir. 1987).

Accordingly, U.S.

Airways was not rendered powerless to suspend Yancy for what the
company reasonably believed to be bad behavior that violated the

11

company’s sexual harassment policy. Plaintiff has not convincingly
shown that her suspension would not have occurred in the absence of
her first EEOC charge.7
III.
Next,

U.S.

Airways

challenges

the

plaintiff’s

intentional infliction of emotional distress.

claim

of

Under Louisiana law

to recover for intentional infliction of
emotional distress, a plaintiff must establish
(1) that the conduct of the defendant was
extreme and outrageous; (2) that the emotional
distress suffered by the plaintiff was severe;
and (3) that the defendant desired to inflict
severe emotional distress or knew that severe
emotional distress would be certain or
substantially certain to result from his
conduct.
Baker v. FedEx Ground Package Sys., Inc., 278 F. App’x 322, 329
(5th Cir. 2008) (quoting with approval White v. Monsanto Co., 585
So. 2d 1205, 1209 (La. 1991)).
On summary judgment, U.S. Airways focuses on the first of
these elements and asserts that Yancy cannot support this claim
because she has failed to introduce any evidence to establish that
U.S. Airways acted in an “extreme and outrageous” fashion.
Without pointing to any case precedent, Yancy simply asserts

7

Yancy attempts to argue that her co-worker reported the
text message several months after she allegedly sent it only to
quell the effect of her complaints regarding her Facebook photo.
However, nothing in Yancy’s briefing indicates it was her
employer’s intention to stifle her protected activities.
Instead, everything in the briefing suggests that U.S. Airways
followed protocol in suspending her.
12

that she suffered anxiety and depression as a result of her
treatment at work after making her report of sexual discrimination.
She felt rejected by her co-workers and abandoned by her superiors.
Her doctor has recommended she continue treatment for her anxiety
and depression for three years.
However lamentable the circumstances of Yancy’s depression and
anxiety, her failure to dispute her employer’s arguments that its
actions were not extreme and outrageous merely highlight to this
Court that this claim lacks lawful foundation.
Having found that the plaintiff can sustain neither her
retaliation claims nor her claim of intentional infliction of
emotional distress, the Court GRANTS the defendant’s motion for
summary judgment.

SO ORDERED.

IT IS FURTHER ORDERED: The plaintiff’s case is DISMISSED with
prejudice.

New Orleans, Louisiana, July 20, 2011.

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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