Griffith v. Louisiana State et al

Filing 544

ORDER denying 464 Motion to Dismiss Case; granting in part and denying in part 467 Motion for Judgment on the Pleadings. Signed by Judge Jay C. Zainey on 10/14/14. (Reference: 11-245, 11-535)(jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAMMY GRIFFITH & STACEY
GUICHARD

CIVIL ACTION

VERSUS

NO: 11-245 C/W 11-535

CITY OF NEW ORLEANS, ET AL.

SECTION: "A" (1)

ORDER AND REASONS
[REF: All cases]
The following motions are before the Court: Motion for Judgment on the
Pleadings and for Summary Judgment; Alternatively Partial Summary
Judgment (Rec. Doc. 467) filed by David Bell; Motion for Summary Judgment
(Rec. Doc. 464) filed by the State of Louisiana and Orleans Parish Juvenile Court.
Plaintiffs Tammy Griffith and Stacey Guichard have opposed the motions. The motions,
scheduled for submission on September 10, 2014, are before the Court on the briefs without
oral argument.1
I.

Background
This case arises out of allegations of gender-based discrimination and harassment by

former Orleans Parish Juvenile Court (“OPJC”) Judge David Bell, and other alleged
retaliatory conduct by the other judges on the court.
Following significant motion practice during the course of the litigation, the Court
summed up the remaining claims going forward as follows:

David Bell has requested oral argument but the Court is not persuaded that oral
argument would be helpful in light of the issues presented.
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[A]ll claims against the City of New Orleans remain dismissed. The Title VII
claims against the State of Louisiana, the OPJC, as an agency of the State of
Louisiana, and the judges of the OPJC in their official capacities are reinstated.
Those Title VII claims are for retaliatory discharge (Griffith), constructive
discharge (Guichard), and hostile work environment grounded on gender
discrimination and harassment (Griffith and Guichard). The § 1983 claim for
violations of equal protection are reinstated against David Bell in his individual
capacity. The foregoing claims are the only claims pending in this action
notwithstanding anything else that Plaintiffs have included in the Second
Amended complaint.
(Rec. Doc. 353 at 14).
In the same Order and Reasons the Court granted Plaintiffs leave to file a Second
Amended Complaint for the sole purpose of clarifying the Title VII employer issue and
expressly alleging that their parallel § 1983 claims were based on equal protection. (Id. at
12). Defendants responded to the Second Amended Complaint with motions to dismiss
which the Court granted in part and denied in part on October 9, 2013. (Rec. Doc. 384).
Discovery ensued. Defendants now move for judgment as a matter of law on various issues,
some of which overlap. This matter is scheduled to be tried to a jury on November 3, 2014.
(Rec. Doc. 415).
II.

Discussion
Summary judgment is appropriate only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any," when viewed in
the light most favorable to the non-movant, "show that there is no genuine issue as to any
material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material
fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable
inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the
moving party has initially shown "that there is an absence of evidence to support the non-

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moving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant
must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing
Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
1993)).
A.

Hostile Workplace Discrimination

Bell and OPJC: Is Bell's Conduct Actionable?
The sole claim against Bell individually is a § 1983 claim for a Fourteenth
Amendment equal protection violation. This claim is based on the allegation that Bell
personally harassed Griffith and Guichard in a manner that altered their conditions of
employment, and that he did so for reasons solely attributable to their gender. The conduct
that forms the basis of the § 1983 claim against Bell individually, also forms the basis of the
hostile work environment sexual harassment claim against OPJC. Section 1983 and Title VII
are "parallel causes of action" that are analyzed using the same inquiry. See Lauderdale v.
Tex. Dep't of Crim. Just., 512 F,3d 157, 166 (5th Cir. 2007) (citing Cervantez v. Bexar Cnty.
Civil Serv. Comm'n, 99 F.3d 730, 734 (5th Cir. 1996); Wallace v. Tex. Tech Univ., 80 F.3d
1042, 1047 (5th Cir. 1996)).
The creation of a hostile work environment through gender-based harassment is a
form of discrimination proscribed by Title VII. E.E.O.C. v. Boh Bros. Const. Co., LLC, 731
F.3d 444, 452 (5th Cir. 2013) (citing Vance v. Ball State Univ., 133 S. Ct. 2434, 2455 (2013)).
Where a harassment claim arises out of a supervisor's conduct, "there are four elements of a
hostile working environment claim: (1) that the employee belongs to a protected class; (2)

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that the employee was subject to unwelcome sexual harassment; (3) that the harassment
was based on [a protected characteristic]; and (4) that the harassment affected a ‘term,
condition, or privilege’ of employment.”2 Boh Bros., 731 F.3d at 453 (citing Lauderdale, 512
F.3d at 162-63). To affect a term, condition, or privilege of employment, the harassing
conduct “must be sufficiently severe or pervasive to alter the conditions of [the victim's]
employment and create an abusive working environment.” Id. (quoting Aryain v. Wal–Mart
Stores of Tex., L.P., 534 F.3d 473, 479 (5th Cir. 2008)). Sexually discriminatory verbal
intimidation, ridicule, and insults may be sufficiently severe or pervasive as to alter the
When the alleged harasser is a mere co-worker, the Title VII cause of action has an
additional element, i.e., the employer must have known (or should have known) of the
harassment, and failed to take prompt remedial action. See E.E.O.C. v. WC&M Enters., Inc., 496
F.3d 393,399 (5th Cir. 2007). Absent proof of this element, the Title VII cause of action against
the employer fails. Id. Even though Griffith and Guichard reported directly to the judicial
administrator, Vance v. Ball State University, a relatively recent decision, clarifies that
"colloquial" use of the term "supervisor" in Title VII cases is incorrect. 133 S. Ct. 2434, 2443-44
(2013). Given that Bell was the chief judge of the OPJC, it would be nonsensical to view him as a
mere co-worker to either plaintiff. Bell was clearly in a position to effect significant changes in
employment status as to each plaintiff so he qualifies as a Title VII supervisor.
That said, even if Bell's alleged conduct was severe or pervasive enough to constitute
workplace discrimination, it did not culminate in a tangible employment action for either
plaintiff so under the principles of Faragher/Ellerth, OPJC may avoid Title VII liability by
affirmatively showing that 1) it exercised reasonable care to prevent and promptly correct
harassing behavior, and 2) the complainant unreasonably failed to take advantage of
preventative or corrective measures made available to her. Vance, 133 S. Ct. at 2456 (Ginsburg,
J., dissenting) (citing Faragher v. Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus.,Inc.
v. Ellerth, 524 U.S. 742, 765 (1998)).
The Court recognizes that this case, which is based on the conduct of a sitting judge, does
not fit easily into the Faragher/Ellerth framework. Because Bell was a sitting state court judge,
only the Louisiana Supreme Court could take action against him by acting on a recommendation
of the Judiciary Commission, which is what ultimately occurred. Moreover, even if Plaintiffs had
in fact complained to the other judges about Bell's conduct before Judge Gray filed a formal
complaint, because Bell had been the chief judge at the court, it is unclear what any other judge
on the court could have done to "promptly correct" the harassing behavior. Perhaps another
judge on the court could have filed a formal complaint sooner, and Plaintiffs clearly suggest that
at least one other judge was dilatory in not doing so, but Plaintiffs too had the option of filing a
formal complaint and they chose not to do so. In that vein, the question of whether the Judiciary
Commission could have investigated Bell even in the absence of a formal complaint, (Rec. Doc.
481-3, Plaintiffs' Opposition at 10), is irrelevant because the conduct of the Judiciary
Commission, i.e., whether it could have acted sooner but failed to do so, is not on trial in this
case.
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conditions of the victim's employment and create an abusive working environment that
violates Title VII. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803,806 (5th Cir. 1996)
(citing Harris v. Forklift Sys., Inc., 114 S. Ct. 367, 370-71 (1993)). But the "mere utterance of
an . . . epithet which engenders offensive feeling in an employee" is not alone sufficient to
support Title VII liability. Id. (quoting Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194
(5th Cir. 1996)). The court uses an objective “reasonable person” standard to evaluate
severity and pervasiveness. Boh Bros., 731 F.3d at 453 (citing Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 82 (1998)). Ultimately, whether an environment is hostile or
abusive depends on the totality of circumstances. Id. (citing Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993)).
Both OPJC and Bell argue that the conduct that Plaintiffs allege on Bell's part was not
severe or pervasive enough to support a claim for hostile work environment sexual
harassment. Defendants characterize the conduct as perhaps boorish or offensive, but argue
that it does not rise to the level of conduct necessary to support a cause of action for hostile
work environment.
Nearly two years ago, the prior district judge characterized Plaintiffs' claims as
"[appearing] marginal, at best," when denying the parties' then-pending motions for
summary judgment. (Rec. Doc. 260). The conduct alleged is certainly inappropriate in the
workplace but it may fall short of this Circuit's steep threshold for an actionable claim. See
Shepherd v. Comptroller of Pub. Accts., 168 F.3d 871 (5th Cir. 1999). But because the inquiry
is so fact intensive and ultimately based on a totality of the circumstances, and in light of the
specific allegations in this case, the Court is persuaded that it would be folly to reject
Plaintiffs' claims at this juncture. Moreover, while Plaintiffs' federal claims must stand or fall
on their own merit, the Judiciary Commission thought Bell's conduct serious enough to

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recommend disqualification from office, and the Louisiana Supreme Court did ultimately
adopt that recommendation. Defendants do point to persuasive facts that tend to impugn
Plaintiffs' contentions regarding how the alleged conduct affected them and their ability to
perform their jobs. But this Court is persuaded that the trier of fact must weigh the evidence
and determine whether Plaintiffs suffered a Title VII/§ 1983 violation in light of Bell's
conduct. This aspect of both motions is therefore DENIED.
Bell: Are Plaintiffs' Claims Against Bell Untimely?
Federal courts apply the forum state’s statute of limitations for § 1983 actions and the
forum state’s tolling principles. Walker v. Epps, 550 F.3d 407, 415 (5th Cir 2008) (citing
Hardin v. Straub, 490 U.S. 536 (1989); Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir.
1992)). When damaging conduct is of a continuous nature, prescription does not begin to
run until the date of the last harmful act. Hunter v. Tensas Nursing Home, 743 So. 2d 839,
842 (La. App. 2d Cir. 1999) (citing So. Cent. Bell v. Texaco, 418 So. 2d 531 (La. 1982)). The
continuing tort doctrine requires not only that the tortious conduct be of a continuous
nature, but also that it give rise to successive damages from day to day. Id. (citing Crosby v.
Keys, 590 So. 2d 601 (La. App. 2d Cir. 1991)). Courts typically find torts to be continuous in
nature where each individual act would not necessarily give rise to a cause of action but the
cumulative effect of regularly occurring or continuous actions results in successive damages
from day to day. Id.
In Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998), the Fifth Circuit held that a
hostile workplace claim was subject to the continuing violation doctrine. The court was
moved by the fact that the ongoing harassment was of the same nature (racial), was
continual, and was allegedly a permanent condition of that plaintiff’s workplace. Id. at 239.
Bell returned from his medical leave of absence in April 2010 and it is Plaintiffs'

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contention that Bell resumed harassing them until the Louisiana Supreme Court disqualified
him and banned him from the OPJC facility on June 15, 2010. Griffith filed her original
complaint on February 7, 2011, and Guichard filed her original complaint on March 7, 2011.
The Court has already held that the Second Amended Complaint relates back to the filing of
the original complaint. (Rec. Doc. 384). The timeliness aspect of Bell's motion is therefore
DENIED.
B.

Retaliation

"It shall be an unlawful employment practice for an employer to discriminate against
any of his employees . . . because he has opposed any practice made an unlawful
employment practice" under Title VII, "or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing" under Title VII.
42 U.S.C. § 2000e-3(a). In order to establish a prima facie case of retaliation, a plaintiff
must show that: 1) she engaged in activity protected by Title VII; 2) an adverse employment
action occurred; and 3) a causal link exists between the protected activity and the adverse
action.3 Reine v. Honeywell Int'l, Inc., 362 Fed. Appx. 395, 398 (5th Cir. 2010) (citing McCoy

Bell suggests that the "engaged in activity protected by Title VII" prong means filing the
EEOC complaint, and he cites Watkins v. Texas Department of Criminal Justice, 269 Fed. Appx.
457, 467 (5th Cir. 2008) (unpublished), for that proposition. (Rec. Doc. 467-1, Bell's Memo at 16
n.5). Watkins merely confirms that filing the EEOC complaint is "undeniable" protected activity
but the court never suggested that the filing of the complaint denotes the clear line of
demarcation for triggering Title VII's retaliation protections. To the contrary, the Watson court
specifically considered whether an earlier interoffice memo that the plaintiff had authored could
be considered "protected activity" in that case. Id. at 461-62. Because the memo did not
affirmatively raise the issue of racial discrimination it did not qualify as "protected activity." Id.
at 462. But the very fact that the appellate court did not reject the memo outright and even went
on to assume arguendo that the memo was protected activity, suggests that acts that occur prior
to the date of filing an EEOC complaint can be actionable under the retaliation provision. See id.
Thus, while it is undeniably clear that Title VII's retaliation provisions trigger once the EEOC
complaint is filed, nothing in Watkins suggests that other prior acts taken in opposition to
unlawful discrimination do not constitute "protected activity." But as the Court has previously
warned, attempts to expose non-discriminatory improprieties or other malfeasant acts are not
protected by Title VII. (Rec. Doc. 423 at 2-3).
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v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007)). Assuming that the plaintiff
makes such a showing the burden shifts to the employer to articulate nondiscriminatory
reasons for its employment action. Id. If the employer satisfies this burden, the plaintiff
bears the ultimate responsibility to prove that the employer's proffered reasons are a pretext
for its true discriminatory motivation. Id.
In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006),
the Supreme Court rejected the Fifth Circuit's "ultimate employment decision" standard for
Title VII retaliation cases and held that the plaintiff must only show "material adversity,"
i.e., that the retaliatory act was injurious enough to have dissuaded a reasonable worker
from making or supporting a charge of discrimination. Id. The Court explained that not all
acts of retaliation are actionable. Id. at 67. Trivial harms, petty slights, minor annoyances,
and simple lack of good manners, even if subjectively injurious, will not suffice to support a
claim for unlawful retaliation. Id. at 68. An employee's decision to report discriminatory
behavior cannot immunize that employee from those petty slights or minor annoyances that
often take place at work and that all employees experience. Id. The standard for judging
harm is an objective one. Id.
Griffith
Griffith's termination is clearly actionable as an act of retaliation. The Court is
persuaded that the jury must determine whether Griffith was fired as a result of protected
Title VII activity (causation). Likewise, only the jury can weigh the evidence and determine
whether OPJC's reasons for terminating Griffith were pretextual. The Court will also allow
the jury to determine whether Griffith's other grievances were "materially adverse" under

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the standards of White, supra.4 OPJC's motion is therefore DENIED as to Griffith's
retaliation claim.
Guichard
Guichard voluntarily resigned as opposed to being terminated. Constructive
discharge can form the basis for a Title VII claim. Ward v. Bechtel Corp., 102 F.3d 199, 202
(5th Cir. 1997) (citing Guthrie v. Tifco Indus., 941 F.3d 374, 377 (5th Cir. 1991)). To show
constructive discharge, an employee must establish that the employer made the employee's
working conditions so intolerable that a reasonable employee would feel compelled to
resign. Id. (quoting Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)).
OPJC points out that the hostility that Guichard cites in support of her intolerable
working conditions actually predated any protected activity. The record does support the
inference that Guichard had ongoing difficulties with Chief Judge Gray. Perhaps it was just
the culmination of a long history of hostility that motivated Guichard to resign from the
highest paying job that she had ever had to take a significant cut in pay. But the jury must
weigh the evidence to determine whether OPJC made Guichard's working conditions so
intolerable because of her protected activity that she was compelled to resign.5 The Court

The Court tends to agree that some of Griffith's other (non-discharge) grievances are
not likely materially adverse from an objective standpoint. But even if some of Griffith's other
grievances are not materially adverse so as to support an independent claim for retaliation, if the
jury is persuaded that those acts were nonetheless retaliatory in nature, then the jury might be
more likely to conclude that the discharge was retaliatory. Thus, because evidence of Griffith's
other grievances would be admissible even if not materially adverse, and because the case must
go the jury on the retaliatory discharge claim anyway, the Court can discern no good reason to
start taking claims from the jury in a piecemeal fashion.
4

It bears repeating (see Rec. Doc. 353 at 2 n.2), that the only "hostility" that is actionable
in this case is hostility based on either severe or pervasive sexual harassment by Bell or acts of
retaliation by the other judges on the court that rise to the level of material adversity. So for
instance, even if Chief Judge Gray was in fact "abusive," and a "bully," with a "nasty attitude,"
(OPJC Exhibit 4, Guichard's 9/22/10 Complaint to Office of Special Counsel), Title VII is not
implicated unless the hostility was triggered by "protected activity." Nothing in Guichard's
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will also allow the jury to determine whether Griffith's other grievances were "materially
adverse" under the standards of White, supra.6 OPJC's motion is DENIED as to this issue.
Griffith and Guichard Vis à Vis Bell
To the extent that either Griffith or Guichard is pursuing a claim against Bell
personally for retaliation, summary judgment is GRANTED as to that claim. Bell was long
gone from OPJC when the most significant acts of alleged retaliation for either plaintiff
occurred. The Court agrees with Bell's position that any alleged retaliatory acts by him do
not satisfy the objective standard of material adversity.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Judgement on the Pleadings and for
Summary Judgment; Alternatively Partial Summary Judgment (Rec. Doc. 467)
filed by David Bell is GRANTED IN PART AND DENIED IN PART as explained above;
IT IS FURTHER ORDERED that the Motion for Summary Judgement (Rec.
Doc. 464) filed by the State of Louisiana and Orleans Parish Juvenile Court is DENIED as
explained above.
October 14, 2014
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

Complaint of 9/22/10 to OSC, and the 10/17/10 follow-up, supports that inference. Title VII
does not protect employees from hostile conduct that is not based on their protected status or
protected activity. Farpella-Crosby, 97 F.3d at 806 n.2.
6

See note 4, supra.

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