Calmes v. JPMorgan Chase Bank et al

Filing 24

ORDER & REASONS granting 16 Defendant's Motion for Summary Judgment; FURTHER ORDERED that Plaintiff's claims against Defendant are DISMISSED with prejudice. Signed by Judge Carl Barbier on 5/1/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CALMES

CIVIL ACTION

VERSUS

NO: 12-281

JPMORGAN CHASE BANK ET AL.

SECTION: "J” (2)

ORDER AND REASONS
Before the Court are Defendant's Motion for Summary Judgment
(Rec. Doc. 16), Plaintiff's opposition thereto (Rec. Doc. 20),
and Defendant's reply to same (Rec. Doc. 23). Defendant's motion
was set for hearing on Tuesday, April 16, 2013, on the briefs.
The Court, having considered the motion and memoranda of counsel,
the record, and the applicable law, finds that Defendant's motion
should be GRANTED for the reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This

suit

retaliation,

and

arises

out

constructive

of

same-sex

discharge

sexual

claims

harassment,

brought

under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq. ("Title VII"). On January 27, 2012, Plaintiff Thomas Calmes
filed his Complaint in this Court, naming JPMorgan Chase Bank,
1

N.A. ("Chase") and its employee, Dan Ritchel ("Mr. Ritchel"), as
Defendants.

On

March

20,

2010,

Plaintiff

filed

a

notice

of

voluntary dismissal, which dismissed Mr. Ritchel from this suit.
Therefore, the only remaining Defendant is Chase. Plaintiff's
Complaint alleges that while he was an employee at Chase, he was
sexually

harassed

by

his

supervisor,

Mr.

Ritchel.

Plaintiff

asserts that when he reported the harassment to a Chase human
resources

("HR")

representative,

he

was

suspended.

Plaintiff

asserts that these actions were all in violation of Title VII.
The relevant background facts in this case are as follows.
Plaintiff was an employee of Chase for over twenty years.
From

2003

to

2009,

Plaintiff

served

as

a

National

Account

Representative for the Chase At Work Program. Mr. Ritchel began
serving as Plaintiff's supervisor in August 2009 and remained
Plaintiff's supervisor until April

9, 2010, when Plaintiff was

placed on administrative leave, with pay.1
Plaintiff contends that while serving as his supervisor, Mr.
Ritchel intentionally harassed, humiliated, and belittled him. In
particular, he describes the following instances of harassment as
incidents that made him feel like his job was in jeopardy. First,

1
Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, p. 57; Def. Ex. B Reiger
Decl., Rec. Doc. 16-6, p. 2.

2

Plaintiff asserts that on a visit to Louisiana, before becoming
Plaintiff's supervisor, Mr. Ritchel once remarked to a Chase
customer that Plaintiff was "only good for" picking up vomit.2
Second, Plaintiff contends that on Mr. Ritchel's first visit to
New Orleans as his supervisor, while Mr. Ritchel was riding with
Plaintiff through New Orleans, Mr. Ritchel badgered Plaintiff in
a facetious and sarcastic manner about how Plaintiff knew to take
a

different

route

to

their

intended

location.3

Third,

Mr.

Ritchell allegedly referred to Plaintiff as "Eeyore" from Winnie
the Pooh, accusing Plaintiff of never having anything positive to
say

and

telling

Plaintiff

that

he

reminded

him

of

his

(Mr.

Ritchel's) mother.4 Fourth, Plaintiff asserts that later, on the
same day that Mr. Ritchel referred to Plaintiff as Eeyore, while
Plaintiff was driving Mr. Ritchel, Mr. Ritchel began laughing
mockingly at Plaintiff, telling Plaintiff that he was "so funny"
and

that

he

(Mr.

Ritchel)

"just

like[d]

f***ing

with

2

At the time that this incident occurred, Mr. Ritchel served as a National
Account Representative at Chase and he was located out of Dallas. Mr. Ritchel had
made a visit to Covington to speak to a potential client, and Plaintiff was his
point of contact with the client. Mr. Ritchel made the comment after learning
from the same client that on a previous occasion Plaintiff had helped the Chase
client clean up after a child who had gotten ill at the store. Def. Ex. A Calmes
Depo. Part 1, Rec. Doc. 16-4, pp. 36-42.
3

Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, p. 46.

4

Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, pp. 48 -49 ("He just kept
telling me, oh, woe to me, oh woe to me, mocking me and making fun of me. Calling
me Eeyore and reminding me – telling me how much I reminded him of his mother.").

3

[Plaintiff]."5 Fifth, Plaintiff states that on various occasions
Mr. Ritchel would make comments on the phone in which he told
Plaintiff that he had to increase his productivity or he would
"have a problem with" his job.6 Sixth, Plaintiff asserts that
once

when

the

two

men

were

visiting

a

client,

Mr.

Ritchel

allegedly placed his hands on Plaintiff's chest and/or shoulders,
adjusted Plaintiff's tie, and told Plaintiff "when you're with
me, you need to look your best at all times."7 Seventh, while
leaving lunch with Plaintiff on one occasion, Mr. Ritchel told
Plaintiff that he could not find his cell phone.8 Mr. Ritchel
then asked Plaintiff to walk back to his hotel with him to look
for the phone.9 When the men arrived at the hotel, Plaintiff
explains that he sat down in the lobby and Mr. Ritchel "turned

5

Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, pp. 51 -52. Plaintiff's
deposition testimony indicates that Mr. Ritchel continued to insult Plaintiff
stating the following: "You're so much fun to f*** with. I just love f***ing with
you, and I'm going to have fun f***ing with you."
6

Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, pp. 62-63 ("Comments on
the phone about, you know, you better continue to increase your productivity and,
if you don't, I'm not going to get my bonus, and if I don't get my bonus you're
going to have a problem with your bonus and you're going to have a problem with
your job.").
7

Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, pp. 57 -58. Plaintiff
later notes that after making that statement, Mr. Ritchel followed-up by telling
him "didn't your mother ever tell you that?" Def. Ex. A Calmes Depo. Part 1,
Rec. Doc. 16-4, p. 60.
8

Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, p. 65.

9

Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, pp. 65-67.

4

around

and

said,

why

don't

you

come

up

to

my

room."10

When

Plaintiff refused, Mr. Ritchel responded by asking, "are you sure
you

don't

explains

want
that

to
in

come

up

January

to

my

2010,

room?"11

upon

Lastly,

giving

Mr.

Plaintiff
Ritchel

a

Christmas present, Mr. Ritchel told Plaintiff that "this means
the world to me. . . . if I wasn't alone – if I was alone with
you, I would give you a big hug and a kiss right now, but we're
in public so I can't."12 Plaintiff reports that due to these
incidents

and

his

own

rejection

of

Mr.

Ritchel's

alleged

advances, he felt that his job was in jeopardy.13
Plaintiff asserts that prior to December 2009, while he did
not file a formal complaint against Mr. Ritchel, he informally
spoke to an HR representative at Chase, Lee McConnell ("Ms.
McConnell"),

10

about

the

aforementioned

incidents.14

Later,

on

Def. Ex. A Calmes Depo., Rec. Doc. 16-4, p. 68.

11

Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, p. 68. When asked what
he took Mr. Ritchel's comment to mean, Plaintiff stated that he "didn't take it
to mean that he was asking me to help him look for a cell phone." Def. Ex. A
Calmes Depo. Part 1, Rec. Doc. 16-4, p. 68. He later explicitly states that he
took the comment to be a sexual advance. Def. Ex. A Calmes Depo. Part 1, Rec.
Doc. 16-4, pp. 70-71.
12

Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, pp. 80-81.

13

See Def. Ex. A Calmes Depo. Part 1, Rec. Doc. 16-4, pp.

71, 76-77, 91-

92.
14

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, pp. 2-3. While Plaintiff
states that he had a conversation with the HR representative prior to December
2009, his later testimony indicates that he may not have spoken with her and/or
he is unsure if he definitely had a conversation. However, for the purposes of

5

April 5, 2010, Plaintiff had a formal conversation with Ms.
McConnell about the alleged harassment.15 Plaintiff reports that
the conversation was prompted by an email that he received from
Mr. Ritchel on April 2, 2010.16 Plaintiff explains that on April
2, 2010, Mr. Ritchel emailed him and told him to attend a meeting
at the Severn branch office on April 7, 2010.17 In response to
the email, Plaintiff attempted to contact Mr. Ritchel several
times to find out more about the meeting.18 When Plaintiff was
unable to contact Mr. Ritchel, he decided to speak with Ms.
McConnell about the meeting.19 Plaintiff explains that during the
course of his conversation with Ms. McConnell, he also told her
about the alleged harassment.20 At some point before April 7,
2010, Plaintiff also had an additional conversation with Mr.
Ritchel's

supervisor,

Travis

Rieger,

about

the

alleged

this motion, looking at the facts in the light most favorable to the Plaintiff,
the Court will assume
that Plaintiff spoke with HR prior to 2010, albeit
informally.
15
Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 10 - 11. This
conversation is also documented by notes from Ms. McConnell and Ms. McConnell's
own deposition.
16

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, pp. 10 - 12.

17

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 11.

18

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, pp. 11-12.

19

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 12.

20

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, pp. 11-13.

6

harassment.21
On April 7, 2010, Plaintiff met with a representative from
Chase's global security investigations team at the Severn branch
office

and

was

informed

that

he

was

being

investigated

for

possibly padding his production and expense reports.22 On April
9, 2010, after the meeting but before the investigation was
terminated, Plaintiff was contacted by Travis Rieger, and told
that he was being suspended.23

The decision to suspend Plaintiff

was made by Travis Riegar's supervisor, Kim Bera.24 As of April
11, 2010, Plaintiff was suspended from Chase, with pay, pending
investigation of the alleged false reporting of production and
expenditure reports.25 On April 12, 2010, Plaintiff emailed Ms.
McConnell, Travis Rieger, and Mr. Ritchel a copy of a letter
dated

April

9,

2010,

detailing

Mr.

Ritchel's

21

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, pp. 13-15.

22

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, pp. 19 - 21.

23

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 24.

24

alleged

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 23.

25
There is evidence of a significant dispute in the record as to whether
Plaintiff remained suspended until his resignation in June 2010. Chase presents
evidence that indicates that Plaintiff filed for disability leave, and that his
suspension was thereby converted to medical leave under Chase's FMLA policy. See
Def. Ex. C De La Cruz Decl., Rec. Doc. 16-7, p. 2. Plaintiff contends that he did
not apply for disability leave and that, to his knowledge, he was suspended from
April 9, 2010 until he resigned on June 10, 2010. See Def. Ex. A Calmes Depo.
Part 2, Rec. Doc. 16-5, pp. 36-43.

7

harassment.26 On June 10, 2010, Plaintiff submitted his letter of
resignation

to

Miriam

de

la

Cruz,

Chase's

HR

Manager.27

The

letter notified the company that Plaintiff's last day with Chase
would be June 11, 2010, as he had found other employment.28 On
June 15, 2010, Plaintiff filed a "Charge of Discrimination" with
the Equal Employment Opportunity Commission ("EEOC").29 Plaintiff
received a "Right to Sue" letter on November 16, 2011.30
Defendant filed the instant motion on March 26, 2013. On
April 4, 2013, Plaintiff filed a motion requesting a continuance
of the hearing date on Defendant's motion. On April 9, 2013, the
Court granted Plaintiff's motion, allowing him an extension until
April

16,

2013.

On

April

12,

2013,

Plaintiff

filed

his

opposition. Defendant replied on April 24, 2013.
THE PARTIES’ ARGUMENTS
Defendant
claims

of

requests

sexual

that

this

harassment,

Court

dismiss

retaliation,

and

Plaintiff's
constructive

discharge on the following grounds. First, Defendant argues that

26

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, pp. 29-30.

27

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 44.

28

Pl. Ex. B, Rec. Doc. 20-3, p. 1.

29

Pl. Ex. C, Rec. Doc. 20-4, p. 1.

30

Pl. Ex. D, Rec. Doc. 20-5, p. 1.

8

Plaintiff cannot prove that Mr. Ritchel's alleged conduct was
based on sex. In particular, Defendant asserts that under Title
VII,

in

order

to

prove

a

same-sex

sexual

harassment

claim

Plaintiff must show that "the alleged harasser made explicit or
implicit proposals of sexual activity," and provide evidence that
the harasser was homosexual. Def.'s Mem. in Supp., Rec. Doc. 161,

pp.

6-7.

Defendant

contends

that

Plaintiff

must

present

evidence which shows that the harasser actually intended to have
sexual contact with the Plaintiff. While Defendant concedes that
Mr.

Ritchel

is

openly

gay,

it

argues

that

the

first

five

incidents that Plaintiff complained of clearly have nothing to do
with

Plaintiff's

sex.

Furthermore,

Defendant

notes

that

in

Plaintiff's own deposition he states that he does not know why
Mr. Ritchel would have engaged in the aforementioned behavior. As
to the last three instances, Defendant argues that the hotel room
invitation, the "look your best" comment, and the "kiss and hug"
comment are innocuous. Defendant contends that they are easily
justified for reasons unrelated to sex and that, to the extent
that they could be construed as being based on sex, Mr. Ritchel's
other degrading and rude remarks negate any potential sexual
implication.
Second, Defendant argues that even if Plaintiff could prove

9

that the conduct was "based on sex," he cannot show that the
conduct in question was severe or persuasive. Defendant contends
that

Title VII harassment claims are only actionable if the

harassment is severe and persuasive. Defendant asserts that none
of the alleged conduct in this case is severe because it did not
involve any touching of private parts or any direct requests for
sexual contact. Likewise, Defendant argues that the conduct was
not pervasive because the instances described by the Plaintiff
are very limited in both their scope and frequency.
Third, Defendant avers that even if Plaintiff could show
that Mr. Ritchel's conduct was actionable under Title VII, he
could not prove that it was actionable against Defendant, because
the evidence clearly shows that Plaintiff unreasonably failed to
take

advantage

of

corrective

opportunities

that

Defendant

provided. Specifically, Defendant asserts that Plaintiff did not
suffer a tangible employment action and that once Defendant was
notified of the alleged harassment, it took reasonable care to
prevent and address it. Defendant contends that Plaintiff did not
suffer

a

tangible

employment

action

because

there

was

no

significant change in Plaintiff's employment status and/or his
compensation and benefits. Likewise, Defendant argues that at the
time

of

the

alleged

harassment

10

it

had

a

"Harassment-Free

Workplace Policy" in place which instructed employees on who to
contact

in

Plaintiff

the
was

event
aware

of
of

harassment.
this

policy

Defendant
and

of

argues

the

that

reporting

procedures; however, Defendant asserts that Plaintiff failed to
take advantage of the policy. Therefore, Defendant contends that
it cannot be held liable for Mr. Ritchel's alleged harassment of
Plaintiff.
Fourth,

Defendant

contends

that

Plaintiff's

wrongful

termination and constructive discharge claim should be dismissed
because Plaintiff failed to exhaust his administrative remedies.
Specifically, Defendant asserts that Plaintiff's EEOC claim did
not complain of retaliation or constructive discharge; rather, it
just addressed Plaintiffs harassment claims. Therefore, Defendant
asserts that Plaintiff's termination and constructive discharge
claims are procedurally barred. Likewise, Defendant also argues
that if Plaintiff's claims are not procedurally barred, they
still fail as a matter of law because Defendant never terminated
Plaintiff. Instead, Defendant argues that Plaintiff voluntarily
resigned. As proof, Defendant points to the fact that it paid
Plaintiff from the time that Plaintiff was suspended until the
time

it

received

Plaintiff's

resignation

letter.

Likewise,

Defendant notes that it also sent multiple notices requesting

11

that

Plaintiff

complete

his

claim

for

medical

leave,

which

Defendant contends it would not have done if it had considered
Plaintiff's employment to be terminated.
Fifth,
Defendant

with

regard

to

Plaintiff's

retaliation

claim,

argues that Plaintiff cannot establish that his paid

suspension constituted a materially adverse employment action.
Defendant
pending

explains

an

that

investigation

Plaintiff
into

was

his

placed

expense

on

paid

report,

leave

and

that

Plaintiff has no evidence of a causal connection between this
suspension and Plaintiff's participation in a protected activity.
Defendant asserts that even though Plaintiff's protected activity
occurred on April 5, 2010, the investigation into Plaintiff's
expenditure reports began before that date. Likewise, Defendant
also avers that the April 7, 2010 meeting was scheduled before
Plaintiff's
asserts

meeting

that

Plaintiff's
Plaintiff

the

with

McConnell

intervening

failure

from

Ms.

to

April

cooperate

establishing

the

at

took
7,

place.

2010

that

necessary

Defendant

meeting

meeting
causal

and

preclude
connection

between the protected activity and the suspension.
Sixth,

Defendant

establish

a

prima

satisfied

its

own

asserts

facie

case

that
of

corresponding

12

even

if

Plaintiff

retaliation,
burden

of

could

Defendant
articulating

has
a

legitimate nonretaliatory reason for suspending Plaintiff, and
Plaintiff

cannot

show

that

that

reason

is

merely

pretext.

Specifically, Defendant contends that in order to prove that the
reason proffered by Defendant's for the suspension was merely
pretext,

Plaintiff

must

submit

legitimate

evidence of (1) disparate treatment or (2)
employer's

explanation

is

false.

summary

judgment

a showing that the

Defendant

argues

that

an

employee's subjective belief alone is insufficient to make an
issue for the jury. Defendant contends that Plaintiff does not
have proof of either of the foregoing and, therefore, can not
proceed to a jury with his retaliation claim.
Lastly,

Defendant

argues

that

Plaintiff's

constructive

termination claim fails as a matter of law. Defendant asserts
that in order to prove a constructive discharge claim, "Plaintiff
must

show

'working

conditions

.

.

.

so

intolerable

that

a

reasonable person in the employee's position would have felt
compelled to resign.'" Def.'s Mem. in Supp., Rec. Doc. 16-1, p.
24 (quoting Nassar v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d 448,
453 (5th Cir. 2012)). Defendant contends that because Plaintiff
cannot show that any of the alleged harassment was severe and
pervasive,

he

likewise

cannot

present

enough

establish that he was constructively discharged.

13

evidence

to

In response, Plaintiff argues that there are numerous issues
of material fact which preclude summary judgment. Specifically,
in response to Defendant's argument that Plaintiff has failed to
exhaust his administrative remedies, Plaintiff asserts that he
used the term "retaliation" on all four pages of his EEOC claim
and that the facts clearly support such a claim. Plaintiff also
contends

the

same

for

his

hostile

work

environment

claim.

Moreover, Plaintiff asserts that "[i]t is well settled that a
retaliatory discharge claim may not have to be specified in an
EEOC charge." Pl.'s Opp., Rec. Doc. 20, p. 9. Plaintiff contends
that the charge may be raised for the first time in federal
court.

Thus,

Plaintiff

argues

that

even

if

he

had

not

specifically used the word retaliation in the EEOC charge, he
would still be able to plead it in the current suit.
Next, Plaintiff asserts that the evidence presented supports
the conclusion that Plaintiff was constructively discharged based
on a tangible adverse employment action. First, Plaintiff avers
that

his

suspension

clearly

constituted

a

tangible

adverse

employment action. Second, Plaintiff contends that after he was
suspended

it is evident that Defendant instituted a scheme

against him whereby it knew that he would be forced to seek
another

job.

Plaintiff

asserts

14

that

despite

the

fact

that

Defendant was aware of his sexual harassment, Defendant "waited"
Plaintiff out, forcing him to look for other employment. Thus,
Plaintiff argues that either Plaintiff's suspension

constituted

a tangible employment action, or that Plaintiff's suspension plus
Defendant's subsequent failure to take any action for two months
created a tangible adverse employment action. Plaintiff contends
that because Defendant did take such an action, it should be held
strictly liable. In making this argument, Plaintiff cites the
following

facts

as

being

indicative

of

why

Plaintiff's

resignation was reasonable, and Defendant's actions therefore
resulted in a constructive discharge:

1. Plaintiff was a 20 plus year employee with no
history of any disciplinary issue;
2. Plaintiff had discussions with, and complained to,
Leila McDonell regarding harassment by Dan Ritchel and
fear of losing his job as late as April 5, 2010 and
McDonnell conveyed same to Travis Reiger on the same
day via email;
3. On April 7, 2010, Plaintiff was interrogated by
Defendant's Global Security regarding alleged fraud in
mileage reimbursement expense reporting;

15

4. Plaintiff was advised by previous management that he
could work from his LaPlace, LA home;
5. On April 9, 2010, Travis Reiger placed Plaintiff on
paid suspension pending the investigation of alleged
fraudulent mileage expense reports;
6. Plaintiff appeared at a second meeting with security
in late April 2010 as advised by Miriam De La Cruz in
human resources; however, B.J. Turner did not show
up;
7. Miriam De La Cruz advised Plaintiff that she would
advise

him

of

any

determination

regarding

the

investigation and his employment; however, Plaintiff
never heard back from her as late as June 10, 2010;
8. As late as June 10, 2010, Plaintiff was never reinstated to his employment position by Defendant.

Pl.'s Opp., Rec. Doc. 20, p. 14. Plaintiff argues that based on
these facts "any reasonable person in his position would have
[resigned]

due

to

intolerable

circumstances,"

and

that

the

aforementioned actions were "tantamount to a firing for making
complaints of sexual harassment." Pl.'s Opp, Rec. Doc. 20, pp.
14-15.
16

Additionally, Plaintiff asserts that he was actually, not
just

constructively,

terminated

by

Defendant.

Specifically,

Plaintiff points to employment documentation identified by Ms.
McConnell

which

terminated

for

purportedly
falsifying

indicates

documents.

that

Plaintiff

was

Plaintiff

asserts

that

"Defendant's actions in noting 'termination' on June 12, 2010
[paperwork], after Plaintiff's alleged June 10, 2010 resignation
notification, leave little doubt that it's placing Plaintiff on
paid

suspension

complaints

for

against

nearly

Ritchel

two
was

months
a

after

tangible

his

adverse

filing

of

employment

action." Pl.'s Opp., Rec. Doc. 20, p. 14. Likewise, Plaintiff
contends that Defendant's justification for terminating Plaintiff
is a pretext for unlawful discrimination. Plaintiff argues that
the simple facts of this case indicate that "it is more likely
than

not"

that

Defendant

suspended

Plaintiff

due

to

the

harassment. Plaintiff states that the pertinent facts are that,

1)

[Plaintiff]

had

an

exemplary

record

with

the

company; 2) [Plaintiff] complained of sexual harassment
and hostile environment to management; 3) a subsequent
investigation of Plaintiff was commenced by Defendant
of Plaintiff for alleged fraud with little to no real

17

investigation as to the accusations of Plaintiff of
harassment; 4) Plaintiff was subsequently suspended for
over two months without evidence of further or actual
investigation ongoing into Plaintiff's alleged fraud;
and

5)

Defendant's

own

business

records

[]

clearly

indicate that Plaintiff was terminated by Defendant as
of July 12, 2010.

Pl.'s Opp., Rec. Doc. 20, p. 17.
Furthermore,

Plaintiff

contends

that

sufficient evidence to make a prima facie
retaliation.

Plaintiff

argues

that

at

he

has

presented

case for unlawful
this

stage

of

the

proceedings his burden of proof is de minimus and that as long as
he has proffered some competent evidence then it is sufficient to
prevent

summary

judgment.

Plaintiff

asserts

that

there

is

evidence in the record, namely his own deposition testimony,
which indicates that he spoke to Ms. McConnell before April 5,
2010, and that she did not take his complaints seriously and/or
investigate them further. Plaintiff contends that this shows that
Defendant

was

aware

of

the

connection exists between the

harassment

and

that

a

causal

protected activity and the adverse

employment action. Plaintiff contends that informal complaints to

18

management are protected activities.
Lastly,
Plaintiff's

with

regard

harassment

to

claim,

Defendant's
Plaintiff

arguments

asserts

that

about
he

has

presented evidence that supports his subjective belief that the
alleged

harassment

was

sexual

in

nature.

Likewise,

Plaintiff

contends that objectively, looking at the behavior on whole, a
reasonable person would also think that the behavior in question
was sexually motivated. Plaintiff contends that Mr. Ritchel's
allegedly negative and insulting acts were merely retaliation at
Plaintiff for his rejection of Mr. Ritchel's corresponding sexual
advances. Plaintiff asserts that the acts in question are not
typical in the professional setting that the men worked in and,
therefore, can only be interpreted as sexual harassment.
DISCUSSION
A.

Legal Standard

Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any

19

material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but

a

party

cannot

defeat

summary

judgment

with

conclusory

allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable
jury could not return a verdict for the nonmoving party.” Delta,
530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir.

1991)

(citation

omitted).

The

nonmoving

party

can

then

defeat the motion by either countering with sufficient evidence
of its own, or “showing that the moving party’s evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may

20

satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The
burden

then

submitting
showing

shifts

or

that

to

referring
a

genuine

the
to

nonmoving
evidence,

issue

party,
set

exists.

out

See

who

must,

specific

id.

at

by

facts

324.

The

nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. See,
e.g., id. at 325; Little, 37 F.3d at 1075.
B.
In

Title VII Same-Sex Sexual Harassment Claim
a

same-sex

determines

whether

sexual
the

harassment
conduct

discrimination based on sex.

in

case

the

question

court

first

constitutes

La Day v. Catalyst Tech., Inc., 302

F.3d 474, 478 (5th Cir. 2002). The United States Supreme Court
has outlined three ways in which a plaintiff can show that the
alleged harassment was based on sex. Id. First, the plaintiff may
show

"that

the

alleged

harasser

made

'explicit

or

implicit

proposals of sexual activity' and provide 'credible evidence that
the harasser was homosexual.'" Id. (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Second, the
plaintiff "can demonstrate that the harasser was 'motivated by
general hostility to the presence of [members of the same sex] in

21

the

workplace.'"

Id.

(alterations

in

original).

Third,

the

plaintiff "may 'offer direct, comparative evidence about how the
alleged harasser treated members of both sexes in a mixed-sex
workplace.'"

Id.

If

the

Court

determines

that

any

of

these

conditions are met and that the conduct in question is therefore
based on sex, the court may move on to the second

part of the

analysis, i.e. whether the conduct meets the standards for either
quid pro quo harassment or a hostile work environment claim. Id.
A plaintiff must satisfy both parts of this analysis in order to
have an actionable Title VII same-sex sexual harassment claim.
Id.
Under
against

Title

an

harassment

VII,

employer
or

sexual

if

evidence

harassment

there

is

of

hostile

a

is

evidence

only
of

work

actionable

quid

pro

quo

environment.

See

Casiano v. AT&T Corp., 213 F.3d 278, 283-84 (5th Cir. 2000). In
order for a plaintiff to show that he was subjected to quid pro
quo harassment, the plaintiff must present evidence that he was
subject to a "tangible employment action that resulted from his
acceptance
harassment."

or

rejection
LaDay,

302

of

his

F.3d

supervisor's
at

481

alleged

(internal

sexual

quotations

omitted). A clear showing of a tangible employment action results
in per se vicarious liability for the employer. Casiano, 213 F.3d

22

at 283-84. To prove a hostile work environment claim, a plaintiff
must show that the harassment was so severe and pervasive that it
created an abusive work environment. Casiano, 213 F.3d

at 284;

Alleman v. Louisiana Dep't of Econ. Dev., 698 F. Supp. 2d 644,
658 (M.D. La. 2010) (citing Harris v. Forklift Sys., Inc., 510
U.S. 17 (1993)). Where a plaintiff has proven that there was a
hostile

work

environment,

plaintiff's

"employer

may

avoid

liability by raising a two-pronged affirmative defense: '(a) that
the employer exercised reasonable care to prevent and correct
promptly

any

sexually

harassing

behavior,

and

(b)

that

the

plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.'" Harper v. City of Jackson Mun. Sch.
Dist.,

149

F.

App'x.

295,

298-99

(5th

Cir.

2005)

(quoting

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)). This
defense is only available in a hostile work environment claim.
Casiano, 213 F.3d at 284.
In the instant case, because the Court finds that Plaintiff
has failed to provide sufficient evidence that he suffered from
either quid pro quo harassment or a hostile work environment, the
Court declines to address the question of whether the alleged
harassment was based on sex. Instead, for the purposes of this

23

analysis only, the Court will assume, without finding, that the
harassment was based on sex and

move directly into its analysis

of Plaintiff's quid pro quo and hostile work environment claims,
which are dispositive.
1.

Tangible Employment Action

"'A tangible employment action constitutes a significant
change in employment status, such as hiring, firing, failing to
promote,

reassignment

with

significantly

different

responsibilities, or a decision causing a significant change in
benefits.'" La Day, 302 F.3d at 481-82 (5th Cir. 2002) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). In
most

cases,

a

tangible

employment

action

results

in

direct

economic harm. Ellerth, 524 U.S. at 761-62. In order to prove
that a tangible employment action has occurred, the plaintiff
must

show

"acceptance

that
or

the

action

rejection

of

resulted
his

from

supervisor's

the

plaintiff's

alleged

sexual

harassment." Casiano, 213 F.3d at 283.
In the instant case, it is undisputed that Plaintiff was
suspended with pay on April 9, 2010, pending investigation of his
expense reports.31 Likewise, it is undisputed that Kim Bera, not

31

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 24.

24

Mr.

Ritchel,

made

the

decision

to

suspend

Plaintiff.32

Furthermore, although Plaintiff has attempted to create a factual
dispute as to the circumstances of his resignation by claiming
that Defendant's records show that he was actually terminated, in
Plaintiff's own deposition testimony he clearly states that he
resigned from his employment with Defendant on June 10, 2010,
after finding other employment.33 Thus, this Court cannot say
that Plaintiff has presented sufficient evidence that he suffered
a tangible employment action. In particular, there is no evidence
in the record that supports the conclusion that Defendant fired
Plaintiff, failed to promote Plaintiff, reassigned Plaintiff, or
caused any change in Plaintiff's benefits.34
To

the

extent

that

it

can

be

argued

that

Plantiff's

suspension constitutes a significant change in employment status,
thereby qualifying as a tangible employment action, the Court
finds it important that the decision to suspend Plaintiff was
made by Kim Bera, not Mr. Ritchel. In particular, the Court looks

32
Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 25; Def. Ex. B Reiger
Decl., Rec. Doc. 16-6, p. 3.
33

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 44 ("Q. All right.
And you notified the company in this letter that June 11th will be your last day
as you have found employment with another company, correct? A. Yes.").
34

The Court notes that Plaintiff received his full salary while on
suspension and he also received incentive pay for the quarter. Def. Ex. C De La
Cruz Decl., Rec. Doc. 16-7, p. 3.

25

to the Fifth Circuit's discussion of tangible employment actions
in

Harper

v.

City

of

Jackson

Municipal

School

District.

In

Harper, the court determined that the plaintiff had not made a
sufficient showing of a tangible employment action where she
failed to show that her direct supervisor, the alleged harasser,
actually imposed a significant change in employment status on
her. 149 Fed. Appx. at 299-300. Rather, the plaintiff in that
case had only shown that a different supervisor, not the alleged
harasser, had made decisions which significantly affected the
plaintiff's employment status. Id. Likewise, in Casiano v. AT&T
Corp., the Fifth Circuit also found that there was no tangible
employment action where the plaintiff was denied access to a
training program due to a decision of another manager, not a
decision

of

the

harassing

supervisor.

213

F.3d

at

284-85.

Consequently, this Court cannot find that a tangible employment
action

was

taken

in

the

instant

case

as

it

was

Kim

Bera's

decision to suspend Plaintiff, not Mr. Ritchel's. See Ellerth,
524 U.S. at 761-62 (discussing the importance of the role of the
supervisor in tangible

employment decisions and noting that when

a tangible employment action is taken "the supervisor brings the
official

power

of

the

enterprise

to

bear

on

subordinates"(emphasis added)); Moss v. Wal-Mart Stores, Inc.,

26

No. 04-3090, 2007 WL 846530, at *8 (E.D. La. March 19, 2007)
(holding that there was no tangible employment action where the
person making the decision to take the action in question was
someone other than the alleged harasser). Without some evidence
that it was Mr. Ritchel's decision to suspend Plaintiff, there is
no evidence of a causal connection between Plaintiff's suspension
and the actual harassment, i.e. there is no evidence that an
action was taken as a result of "acceptance or rejection of his
supervisor's alleged sexual harassment." Casiano, 213 F.3d at
283. Thus, the Court finds that Plaintiff has failed to establish
quid pro quo harassment.35
2.
In

order

Hostile Work Environment
to

prove

the

existence

35

of

a

hostile

work

In addition, the Court also notes that it might be argued that
Plaintiff's suspension constituted a tangible employment action because it is
derivative of Mr. Ritchel's initial decision to report the alleged
inconsistencies in Plaintiff's expense reports. The Court finds that a tangible
employment action requires more than a decision to have someone investigated. See
Ellerth, 524 U.S. at 761 (discussing what constitutes a tangible employment
action and noting that "a bruised ego," "demotion without change in pay,
benefits, duties, or prestige," and "reassignment to more inconvenient job" are
all insufficient to constitute a tangible employment action). In particular, the
Court notes that the initiation of an investigation in and of itself would not
necessarily lead to a termination, demotion, or any other significant change in
Plaintiff's employment status. In particular, the evidence in the record supports
Defendant's assertions that the suspension was not only a result of the
investigation, but also of Plaintiff's own failure to comply with the
investigation by not completing a written statement at the April 7, 2010 meeting.
Def. Ex. B, Reiger Decl., Rec. Doc. 16-6, p. 3 ("As a result of the ongoing GS&I
investigation and Mr. Calmes's failure to cooperate, my supervisor, Kim Bera,
informed me that Mr. Calmes should be placed on paid administrative leave.").
Plaintiff has not offered any testimony or other evidence contradicting this
assertion. Thus, the facts of this case indicate that it took an investigation
plus to lead to any type of change in Plaintiff's employment.

27

environment,

a

plaintiff

must

demonstrate

that

the

alleged

harassment was severe or pervasive. LaDay, 302 F.3d at 482.
Plaintiff must show that the environment was both "'objectively
and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact did
perceive to be so.'" Id. (quoting Butler v. Ysleta Indep. Sch.
Dist., 161 F.3d 263, 269 (5th Cir. 1998)). In order to determine
whether an environment is sufficiently hostile or abusive, courts
must look at "all the circumstances, including the frequency of
the

discriminatory

conduct;

physically

threatening

utterance;

and

employee's

work

or

whether

it

its

severity;

humiliating,
unreasonably

performance."

Faragher,

or

whether
a

mere

U.S.

is

offensive

interferes
524

it

with
at

an

787-88

(internal quotations omitted). The Supreme Court has cautioned
that

Title

VII

"does

not

prohibit

'genuine

but

innocuous

difference in the ways men and women routinely interact with
members of the same sex and of the opposite sex.'" Id. at 788
(quoting

Oncale,

523

U.S.

at

81).

"Simple

teasing,

offhand

comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions
of employment." Id. (internal quotations omitted).
It is evident from Plaintiff's deposition testimony that he

28

found

Mr.

Ritchel's

conduct

to

be

subjectively

offensive;

therefore, the question before the Court is whether Mr. Ritchel's
conduct was also objectively offensive. This Court finds that it
was not.
First,

of

the

eight

instances

of

harassment

cited

by

Plaintiff, only three over an eight month span of time can be
considered sexual in nature: (1) the "hug and kiss" incident, (2)
the "look your best for me incident," and (3) the hotel room
incident. In Love v. Motiva Enterprises, LLC, the Fifth Circuit
affirmed this Court's finding that alleged sexual harassment was
not severe and pervasive. 349 F. App'x. 900, 902 (5th Cir. 2009).
In that case, the Plaintiff presented proof of at least twentyfour incidents of alleged sexual harassment. Id. at 902-03.Thus,
in the instant case, it hardly seems that three or even eight
incidents

would

suffice

to

meet

the

pervasiveness

threshold.

Likewise, in Love, this Court also found that the alleged conduct
was not severe when the harasser did not actually touch the
plaintiff's private parts or make direct requests for sexual
conduct. Love, No. 07-5970, 2008 WL 4286662, at *8 (E.D. La.
Sept. 17, 2008). In this case, Plaintiff has also failed to
allege any touching of private parts or any direct requests for
sexual contact. Thus, it appears that the conduct alleged also is

29

lacking in severity. Furthermore, as this Court explained in
Love,

Fifth

Circuit

precedent

in

the

realm

of

sexual

harassment claims has generally upheld summary judgment
even on facts more egregious than those of the instant
case. For example, in Russel v. University of Texas of
Permian

Basin,

the

appellate

court

upheld

summary

judgment of a same-sex sexual harassment claim under a
hostile

work

environment

theory

based

on

lack

of

severity and pervasiveness when the female defendant
had rubbed the inside of the female plaintiff's hand
and thigh; twice intimated that she wanted to move to
New York with plaintiff; stated that she would like to
watch

a

movie

in

bed

with

plaintiff;

and

called

plaintiff “honey” or “babe.” 234 Fed. Appx. 195, 205
(5th Cir. 2007). The court based its holding on a
comparison of the types of behavior at issue in Russel
with those in Hockman v. Westward Communications, LLC,
an opposite-sex sexual harassment claim under a hostile
work environment theory. Russel 234 Fed. Appx. at 205
(citing Hockman v. Westward Commc'ns, LLC, 407 F.3d

30

317,

327-28

(5th

Cir.2004).

In

Hockman,

the

Fifth

Circuit held as a matter of law that plaintiff could
not establish a hostile work environment claim based on
the fact that the male defendant had commented about
another

female

employee's

body,

slapped

plaintiff's

buttocks with a newspaper, grabbed or brushed against
her breast and buttocks, and attempted to kiss her
once. Hockman, 407 F.3d at 328. The Russel Court held
that the alleged harassment by the female defendant
against the female plaintiff were “on the same plane as
those ... found insufficient to establish ‘severe or
pervasive’ harassment in

Hockman.”

Russel,

234 Fed.

Appx. at 205.

Id. Likewise, the allegations in this case are on the same plane
as,

if

not

a

lower

plane

than,

those

in

Love,

Russel,

and

Hockman. Thus, the Court finds that the sexual harassment alleged
is neither severe or pervasive, and that Plaintiff has failed to
make a case for hostile work environment. Accordingly, the Court
finds

that

Plaintiff's

sexual

dismissed.

31

harassment

claim

should

be

C.

Retaliation and Constructive Discharge
1.

"Under

Exhaustion of Administrative Remedies
Title

VII,

courts

do

not

have

jurisdiction

to

consider claims lodged under this statute when the aggrieved
party has not first exhausted [his] administrative remedies by
filing

a

discrimination

charge

with

the

EEOC."

Harvill

v.

Westward Comm'n, LLC, 311 F. Supp. 2d 573, 585 (E.D. Tex. 2004)
(citing Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995)).
Furthermore, when a civil suit is filed under Title VII, it is
limited

to

reasonably

"the
be

scope

of

expected

the
to

EEOC

grow

investigation
out

of

the

which

can

charge

of

discrimination." Sanchez v. Standard Brands, Inc., 431 F.2d 455,
466 (5th Cir. 1970). If a plaintiff fails to state a particular
claim in his EEOC charge or if that charge is not developed in
the ensuing EEOC investigation, the plaintiff is precluded from
bringing that claim in his civil suit. Nat'l Ass'n of Gov't Emps.
v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711-12 (5th
Cir. 1994).
Defendant alleges that Plaintiff has failed to exhaust his
administrative

remedies

as

to

his

retaliation

claim

and

his

constructive discharge claim by neglecting to include them in his
EEOC charge. With respect to Plaintiff's constructive discharge

32

claim, this Court agrees. In particular, the Court notes that
despite the fact that Plaintiff's charge was filed with the EEOC
on June 15, 2010, a mere three days after his resignation took
effect,

Plaintiff

failed

to

inform

the

EEOC

that

he

had

resigned/felt that he had to resign as a result of Defendant's
conduct. The charge itself contains allegations of harassment by
Mr. Ritchel and details the subsequent behavior by Defendant;
however, it fails to assert that such behavior caused Plaintiff
to terminate his employment. As such, Plaintiff is precluded from
bringing

a

claim

for

constructive

discharge

in

the

instant

action.36
Furthermore,
Plaintiff

has

to

failed

the

extent

that

Defendant

to

assert

that

he

was

argues

terminated

that
in

retaliation for engaging in protected activity, this Court finds
that Defendant's argument has merit. As noted, at no point in the

36

In addition, the Court also notes that even if Plaintiff had exhausted
his administrative remedies, his claim for constructive discharge would still
fail. In particular, in order to prove a constructive discharge claim a plaintiff
"must establish that the working conditions [] 'were so intolerable that a
reasonable employee in [his] position would [have felt] compelled to resign.'"
Harvill, 311 F. Supp. 2d at 585-86 (quoting Webb v. Cardiothoracic Surgery Assoc.
of N. Tex., 139 F.3d 532, 539 (5th Cir. 1998)). In general, courts have found
that the plaintiff must show more than allegations of harassment and "must
demonstrate greater severity or pervasiveness of harassment than the minimum
required to prove a hostile work environment." Id. at 586; See Suder, 542 U.S.
at 133-34 ("to establish 'constructive discharge,' the plaintiff must make a
further showing"). As this Court has already determined that Plaintiff cannot
demonstrate sufficient conduct to show that a hostile work environment existed,
it only follows that he cannot bring sufficient evidence to support a claim for
constructive discharge.

33

EEOC charge does Plaintiff state that the alleged harassment has
resulted in any definitive termination of his employment. Rather,
Plaintiff explains that he has been suspended with pay and that
Defendant is attempting to force him to take disability leave,
not terminate him. Plaintiff does not contend that he has left
and/or has been forced to leave. Accordingly, Plaintiff is also
precluded

from

bringing

a

claim

of

retaliatory

discharge.

However, the Court also notes that Plaintiff's EEOC charge does
clearly

allege

that

Defendant

retaliated

against

him

by

suspending him as well as by more intently scrutinizing his work.
Thus,

the

Court

administrative

does

find

remedies

as

that
to

Plaintiff
his

more

has

exhausted

general

his

claims

of

retaliation.
2.

Retaliation

To establish a prima facie case of retaliation under Title
VII,

a

plaintiff

must

show

that:

(1)

he

participated

in

a

protected activity; (2) his employer took an adverse employment
action

against

him;

and

(3)

a

there

is

a

causal

connection

between the protected activity and the adverse employment action.
Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir.
2008).

An

employee

engages

in

a

protected

activity

when

he

opposes a practice that is unlawful under Title VII or makes a

34

charge, testifies, assists, or participates in an investigation,
proceeding or hearing under Title VII. 42 U.S.C. § 2000e-3(a). To
establish that an

adverse employment action has occurred, "a

plaintiff must show that a reasonable employee would have found
the challenged action materially adverse." Burlington N. & Santa
Fe Ry. v. White, 548 U.S. 53, 68 (2006). In general, an action is
materially adverse if it would dissuade a reasonable employee
from

reporting

courts,

or

a

their

charge

of

employer.

discrimination
Id.

to

(citations

the

EEOC,

omitted).

the

"Petty

slights, minor annoyances, and simple lack of good manners will
not create such deterrence." Id. (citations omitted). In the
context of a retaliation claim, causation is a "but for" test in
which

the

plaintiff

must

show

that

but

for

the

protected

activity, the adverse employment action would not have occurred.
Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512,
519-20 (5th Cir. 2001) (internal quotations omitted). Once the
plaintiff has presented a prima facie case, the burden shifts to
the employer to present "a legitimate . . . non-retaliatory
reason

for

(quotations

its

employment

omitted).

"If

action."
the

Aryain,

employer

534

meets

F.3d

this

at

burden

484
or

production, the plaintiff then bears the burden of proving that
the employer's reason is a pretext for the actual retaliatory

35

reason." Id.
Plaintiff has asserted that Defendant retaliated against him
by suspending him after he reported the alleged sexual harassment
to Ms. McConnell on April 5, 2010. Likewise, Plaintiff also
alleges that Mr. Ritchel retaliated against him for rebuffing his
advances

by

more

intensely

scrutinizing

his

expense

and

production reports. As to the second claim of retaliation, the
Court finds that Plaintiff has not made a prima facie case to
support his allegation of retaliation. In particular, there is no
evidence in the record, other than Plaintiff's own allegation in
his EEOC charge that he was treated differently, of how Mr.
Ritchel treated other employees. See Little, 37 F.3d at 1075
(instructing the court to draw all reasonable inferences are
drawn in favor of the nonmoving party, but noting that a party
cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions).

Thus, Plaintiff cannot support his

assertion that Mr. Ritchel's scrutiny of his work and the ensuing
investigation into his reports was retaliation for his rebuffs of
the alleged sexual harassment.
Likewise, with regard to Plaintiff's claim that Defendant
retaliated against him by suspending him, the Court also finds
that

Plaintiff

has

failed

to

present

36

a

prima

facie

case

of

retaliation. In particular, the Court notes that Plaintiff cannot
establish "but for" causation between the April 5, 2010 meeting
with Ms. McConnell and the April 9, 2010 suspension with pay.37
"To establish the causation element of his retaliation claim
under Title VII, [Plaintiff] must present either 'direct evidence
of retaliation' or 'circumstantial evidence creating a rebuttable
presumption of retaliation.'" Washburn v. Harvey, 504 F.3d 505,
511 (5th Cir. 2007) (quoting Fabela v. Socorro Indep. Sch. Dist.,
329 F.3d 409, 414-15 (5th Cir. 2003)). Plaintiff has presented no
direct evidence of retaliation in this case. To the contrary, the
only direct evidence of why Plaintiff was suspended indicates
that he was suspended because he was under investigation for
false

reporting

on

his

production

and

expense

reports.38

Likewise, the only circumstantial evidence that Plaintiff points
to is the close temporal proximity of the protected activity and
the suspension. While the Court acknowledges that in some cases

37

The Court notes that Plaintiff has successfully shown that he
participated in a protected activity when he reported the alleged harassment
to Ms. McConnell on April 5, 2010. Likewise, the Court also notes that
Plaintiff's subsequent suspension, even with pay, could be reasonably found to
be an adverse employment action. See McCoy v. City of Shreveport, 492 F.3d 551,
561 (5th Cir. 2007) ("[P]aid administrative leave does not necessarily mean that
[an employee] did not suffer an adverse employment action. . . .we recognize that
it is at least a close question."(emphasis in original)). However, because it
is clear that Plaintiff cannot make a prima facie case on other grounds, the
Court declines to specifically make a finding on this issue today.
38
Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, p. 24; Def. Ex. B,
Reiger Decl., Rec. Doc. 16-6, p. 3.

37

this may be sufficient, it finds that it is not sufficient in
this one. See Washburn, 504 F.3d

at 511. In particular, the

Court notes that Plaintiff was notified about the April 7, 2010
meeting with the investigation team prior to his April 5, 2010
reporting

of

the

alleged

sexual

harassment.

Thus,

the

investigation that led to Plaintiff's eventual suspension had
already

been

implemented

before

he

engaged

in

the

protected

activity.
Moreover, even if the close temporal proximity cited
Plaintiff
legitimate

was

sufficient

nonretaliatory

to

establish

reason

for

causation,

suspending

by

Defendant's

Plaintiff—the

pending expense report investigation—would overcome Plaintiff's
evidence. In particular, there is ample evidence in the record
which

indicates

that

Plaintiff

was

suspended

pending

the

investigation into his expense reports, not for any improper
purpose. Furthermore, Plaintiff has not presented any evidence to
the

Court

which

would

indicate

that

this

reason

was

merely

pretext. In particular, Plaintiff has presented no evidence that
the explanation provided by Defendant is "false or unworthy of
credence." Laxton v. Gap, Inc., 333 F.3d 572, 580 (5th Cir. 2003)
(citations omitted). As noted Plaintiff himself appears to have
actually believed that the explanation was truthful, citing it as

38

the reason he was suspended in his deposition.39 Accordingly, the
Court finds that Plaintiff has failed to sufficiently allege a
claim for retaliation and, therefore, that the claim should be
dismissed. Accordingly,
IT IS ORDERED that Defendant's motion is GRANTED.
IT

IS

FURTHER

ORDERED

that

Plaintiff's

claims

against

Defendant are DISMISSED with prejudice.
New Orleans, Louisiana this 1st day of May, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

39

Def. Ex. A Calmes Depo. Part 2, Rec. Doc. 16-5, pp. 24 - 25. The Court
does note that Plaintiff argues in his opposition that if he had been terminated
because of the expense report investigation, there would be more actual evidence
of the investigation itself. In essence, Plaintiff argues that it is the absence
of evidence that supports his pretext argument. The Court does not find credence
with this argument. In particular, Plaintiff's Exhibit E, which is an HR form
documenting Plaintiff's employment, outlines the progression of the expense
report investigation from March 26, 2010, until April 28, 2010. Pl. Ex. E, Rec.
Doc. 20-6, p. 1. Thus, contrary to Plaintiff's assertion there is evidence in the
record that an actual investigation ensued, which supports Defendant's
nonretaliatory reason for suspending Plaintiff.

39