Lewis v. Jefferson Parish Hospital Service District No. 2, Parish of Jefferson
Filing
39
ORDER & REASONS re dft's 30 Motion for Summary Judgment: for the reasons stated, IT IS HEREBY ORDERED that dft's Motion for Summary Judgment is GRANTED and Lewis's complaint is DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 7/3/2013. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARILYN R. LEWIS
CIVIL ACTION
VERSUS
NO. 12-0944
JEFFERSON PARISH HOSPITAL SERVICE
DISTRICT NO.2, PARISH OF JEFFERSON
SECTION: “G”(5)
ORDER AND REASONS
Before the Court is Defendant Jefferson Parish Hospital Service District No. 2, Parish of
Jefferson's ("Defendant") Motion for Summary Judgment,1 wherein it seeks the dismissal of Plaintiff
Marilyn R. Lewis's ("Lewis") complaint. After considering the complaint, the pending motion, the
memorandum in support, the opposition, the reply, the record, and the applicable law, the Court will grant
the pending motion and dismiss Lewis's complaint with prejudice.
I. Background
A. Factual Background
Lewis alleges that on August 15, 2011, she was hired by Defendant as a "Patient Access
Representative II."2 She worked in the office of a physician, Dr. McKinnie, in the complex of Defendant
in Metairie, Louisiana. Lewis avers that one of her "main job duties was checking in and checking out
patients for treatment."3 Lewis notes that she was hired by Defendant on a 90-day probationary period
and is an African-American woman.4
1
Rec. Doc. 30.
2
Rec. Doc. 1 at ¶ 3.
3
Id.
4
Id. at ¶¶ 3-4.
Lewis claims that Karen Copeland ("Copeland"), a Caucasian woman, was office manager for
Defendant.5 Lewis contends that throughout her employment with Defendant, she and her AfricanAmerican co-worker, Bergeron, were "treated unfairly and harshly by Ms. Copeland."6 Specifically,
Lewis alleges that Copeland "talked about [Lewis] and Ms. Bergeron sarcastically and in a negative
manner and frequently raised her voice at them. On the other hand, Ms. Copeland treated Ms. Muffett7
[a Caucasian co-worker] politely and respectfully."8
Lewis claims that on November 17, 2011, she was informed that she was being put on
administrative leave pending an investigation into allegations made by Copeland.9 Lewis contends that
Dr. McKinnie had a meeting with Copeland to discuss the work performance of Ms. Muffett and
Bergeron, however, at the meeting, only Ms. Muffett's work related problems were discussed;
nonetheless, on November 29, 2011, Copeland terminated Lewis and "was given the vague and general
reason that she had not satisfied her probation."10 Lewis claims that around the same time Bergeron was
also terminated for "not satisfying her probation," but that Ms. Muffett had no disciplinary action taken
against her.11
5
Id. at ¶ 6.
6
Id. at ¶ 7.
7
In support of the pending motion, Lewis refers to this individual as "Ms. Muffet." Elsewhere she is referred
to as "Ms. Mayet." The record reflects that her full name is Muffett Mayet. See Rec. Doc. 30-9 (Deposition of Ms.
Mayet).
8
Rec. Doc. 1 at ¶ 7.
9
Id. at ¶ 8.
10
Id.
11
Id.
2
Lewis contends that she was terminated by Copeland on the basis of her race.12 Lewis brings a
cause of action under the Louisiana Employment Discrimination Law13 and Title VII of the Civil Rights
Act of 1964,14 claiming that Defendant "failed to have in full force and effect any effective policy
regarding illegal workplace discrimination."15
B. Procedural Background
Lewis filed her action on April 13, 2012, invoking this Court's jurisdiction pursuant to 28 U.S.C.
§ 1331 (federal question) and 28 U.S.C. § 1367 (supplemental jurisdiction). On June 3, 2013, Defendant
filed the pending motion for summary judgment.16 On June 11, 2013, Lewis filed an opposition.17 On June
17, 2013, with leave of court, Defendant filed a reply.18
II. Parties' Arguments
A. Defendant's Memorandum in Support
In support of the pending motion, Defendant argues that in interrogatories, Lewis was asked to
describe and specify each and every alleged discriminatory act that she was subjected to by Defendant,
to which she responded in part that she "was subjected to a hostile work environment because of her
race," and that Copeland treated her in a cold, sarcastic, hostile, and negative manner.19 In further
interrogatory responses, Lewis claimed that Copeland terminated the only African-American employees
12
Id. at ¶ 10.
13
La. R.S. § 23:301, et seq.
14
42 U.S.C. § 2000e, et seq.
15
Rec. Doc. 1 at ¶¶ 11-12.
16
Rec. Doc. 30.
17
Rec. Doc. 31.
18
Rec. Doc. 36.
19
Rec. Doc. 30-2 at pp. 2-3.
3
in the office, but that Ms. Mayet, a Caucasian employee with performance problems had remained an
employee.20 However, Defendant notes that Lewis admits that Copeland never used racial slurs or epithets
in her presence.21
Defendant articulates its rationale for terminating Lewis. Defendant explains that Copeland was
Lewis's direct supervisor during most of her employment with Defendant, and that in order to satisfy her
probation and receive a recommendation for permanent employment she was required to perform the
following non-exhaustive list of tasks: "(1) accurately enter patient registration and demographic
information; (2) schedule patients; (3) accurately and efficiently take telephone messages; (4) accurately
collect co-pays and post money into the computer; (5) create credit card, check and cash batches and
create posting batches of charges."22 Defendant cites to the deposition of Copeland, where she stated that
Lewis did not accurately perform checkout procedures.23
In addition, Defendant references the deposition of Dr. McKinnie, who recalled Copeland
"making comments fairly early on about dissatisfaction with office personnel," and specifically
complained about Lewis "not doing things the way Copeland or [Defendant] wanted them done."24
Moreover, Copeland kept an ongoing log regarding discussions she had with Lewis entitled "Verbal
Discussions, Marilyn Lewis."25 According to this log, Lewis "failed on multiple occasions to properly
attach paperwork and reports to patient charts," and allegedly made several other job-related errors.26
20
Id. at p. 3.
21
Id.
22
Id. (citing Deposition of Copeland, Rec. Doc. 30-4 at pp. 13-16).
23
Id. (citing Rec. Doc. 30-4 at p. 20:18-20).
24
Id. at p. 5.
25
Id. (citing Rec. Doc. 30-4 at pp. 54:20-55:4).
26
See id.
4
Defendant notes that when the issues outlined in Copeland's log were described to Dr. McKinnie, he
stated that the log painted "the picture of someone who's incompetent at their job."27
Therefore, Defendant argues that Copeland concluded that Lewis did not meet Defendant's
performance standards in the following categories: "(a) Makes others feel welcome; (b) Treats others with
dignity and respect; (c) Performs Checkout procedure; (d) Balances charges and payments; (e) Handles
patient account inquiries; (f) Obtain authorizations for visit/procedure…Verify patients insurance and
benefits; (g) Enter all patient demographic and insurance information in computer accurately; (h) Assess
patient accounts for collections, past due balances and discharged patients; and (I) Attends all required
in-services."28 Further, Defendant contends that several other employees observed Lewis's alleged poor
job performance, such as Ann Newfield, Operations Supervisor and Copeland's former supervisor, Wanda
Genovese, Clinic Supervisor for East Jefferson Cardiology Consultants, and Nurse Muffett Mayet, who
worked with Lewis.29
Defendant maintains that Copeland "brought everything to Nicole Yeatman in human resources,
who then met with Copeland's supervisors." Copeland recommended that Lewis not be extended an offer
of permanent employment, and then "[h]uman resources decided to further investigate."30 Copeland and
Joe Robertson, a human resources employee, met with Lewis and she was informed that she would be
placed on paid administrative leave while Copeland's claims about her were investigated.31 On November
29, 2011, Lewis was informed that Defendant decided not to extend her permanent employment.32
27
Id. at p. 6 (citing Rec. Doc, 30-10 at pp. 52:24-53:3).
28
Id. (citing Probationary Evaluation Form, Rec. Doc. 30-6).
29
Id. at pp. 6-8 (citing portions of these individuals depositions).
30
Id. at p. 8.
31
Id.
32
Id.
5
Defendant claims that the burden rests of Lewis to first establish a prima facie case of racial
discrimination by showing:
(1) [s]he is a member of a protected class, (2) [s]he was qualified for the position at issue,
(3) [s]he was the subject of an adverse employment action, and (4) [s]he was treated less
favorably because of his membership in that protected class than were other similarly
situated employees who were not members of the protected class, under nearly identical
circumstances.33
It is only after the plaintiff makes a prima facie case that "an inference of discrimination is raised and the
burden of production shifts to the employer to come forward with an alternative, non-discriminatory
explanation for the employment action.34 If the defendant submits a legitimate, non-discriminatory reason
for discharging the employee, then the burden shifts back to the plaintiff who "must produce substantial
evidence" that the defendant's stated reasons for termination is merely a pretext for discrimination.35
Defendant argues that Lewis cannot meet her initial burden to establish a prima facie case of
racial discrimination.36 Defendant notes that one of the job requirements to be a Patient Access
Representative II with Defendant is that the candidate be a high school graduate.37 However, it is
undisputed that Lewis did not graduate from high school.38 Therefore, Defendant argues that Lewis did
not satisfy one of the requirements for the job from which she was terminated.39
Concerning the fourth factor, Defendant notes that Lewis has argued she was treated differently
than Ms. Mayet, who is Caucasian; however, Defendant contends that Lewis was a Patient Access
33
Id. at p. 12 (citing Wesley v. Gen Drivers, Waterhousemen & Helpers Local 745, 660 F.3d 211, 213-14 (5th
Cir. 2011)).
34
Id.
35
Id. (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)).
36
Id. at p. 13.
37
Id. (citing Rec. Doc. 30-13 (job description for Patient Access Representative II)).
38
Id. (citing Deposition of Lewis, Rec. Doc. 30-12 at p. 11:10-12).
39
Id.
6
Representative II and Mayet is (and was) a registered nurse.40 Further, Defendant argues that Mayet is not
similarly situated to Lewis because Mayet was not a new employee on a 90-day probationary period.41
Defendant maintains that employees "'who have different work responsibilities or who are subjected to
adverse employment action for dissimilar violations are not similarly situated.'"42 Defendant submits that
there "is no evidence that Lewis's work responsibilities were in any way similar to those of Mayet," and
therefore even if she was treated differently than Mayet, this is "of no moment."43 Therefore, Defendant
contends that Lewis cannot prove she was either qualified for the position, or that she was treated
differently from someone outside the protected class that was similarly situated, and thus fails to establish
a prima facie case, therefore entitling Defendant to "judgment as a matter of law."44
However, Defendant further argues that even if Lewis can make a prima facie case, her claims
still fail because she cannot offer substantial evidence that Defendant's reason for her termination was a
mere pretext for discrimination.45 In addition to Lewis's alleged job performance deficiencies, Defendant
notes that Copeland "was not the ultimate arbiter of Lewis's fate."46 Instead, it was the human resources
department that considered Copeland's recommendation and then made the final employment decision.47
40
Id.
41
Id.
42
Id. at pp. 13-14 (quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009)).
43
Id. at p. 14.
44
Id.
45
Id.
46
Id. at p. 15.
47
Id.
7
Defendant contends that pretext can be shown "'either through evidence of disparate treatment
or by showing that the employer's proffered explanation is false or unworthy of credence.'"48 Defendant
argues that there is no evidence of disparate treatment, because Mayet, as discussed above, is not similarly
situated.49 Further, Defendant avers that there is no competent evidence of the falsity of Defendant's
proffered reason for Lewis's termination. In addition, Defendant argues that under Fifth Circuit precedent,
when an employer discharges an employee based on the complaint of another employee, the issue is not
the truth or falsity of the allegation, but rather whether the employer reasonably believed the employee's
allegation and acted on it in good faith.50 Lastly, Defendant contends that Lewis has no evidence of a
"mixed motive," because there is no evidence of Copeland using racial slurs and that Lewis's "efforts to
second guess" Defendant's decision does not create a genuine issue of material fact.51
B. Lewis's Opposition
In opposition to the pending motion, Lewis states several facts she claims supports a prima facie
case of race discrimination. Lewis notes that she had worked for over 15 years in the medical office of
Dr. McKinnie and therefore was "qualified to perform the duties of her job position [with Defendant]."52
Lewis also notes that Dr. McKinnie testified that she was an "exceptional" and "superb" employee. After
her termination, Lewis was replaced by an individual outside of the protected class, a Caucasian female.53
Lewis also alleges facts in support of her claim that Defendant's stated reason for termination is
pretextual. Lewis argues that Dr. McKinnie, based on his years working with her, "knows Ms. Lewis' job
48
Id. at p. 16 (quoting Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (internal quotation marks
omitted)).
49
Id. at pp. 17-18.
50
Id. (citing Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010)).
51
Id. at pp. 19-22.
52
Rec. Doc. 31 at p. 3.
53
Id. at pp. 3-4.
8
performance and ability better than anyone," and stated that the things described in Copeland's log
painting Lewis as an incompetent employee was "not the person that he knew."54 Defendant notes that
Dr. McKinnie did not want Lewis to be terminated, and in a meeting with Human Resources he stated that
Copeland was factually misleading in a document she presented because it indicated that Copeland tried
repeatedly to meet with him about Lewis's performance, but that he was unresponsive, which he denies.55
Defendant also directs the Court to the deposition of Ann Newfield, Copeland's direct supervisor, who
testified that a doctor's recommendation is "significant."56 Lewis argues that Copeland ignored Dr.
McKinnie's opinion and initiated the termination procedures without his knowledge or input and "despite
his insistence to further train Ms. Lewis."
Lewis also argues that Copeland's evaluation and recommendation comprised the entire basis of
the decision to terminate Lewis.57 Further, permanent employment was automatically extended to
probationary employees absent a recommendation for termination by an employee's supervisor.58 Lewis
cites the deposition of several members of Defendant's management team who ultimately had the
authority to terminate Lewis, and stated that they relied on Copeland's recommendation.59 Lewis also
claims that any alleged performance issues were a result of Copeland's failure to properly train her,
specifically with regard to Defendant's computer system.60
54
Id. at p. 4.
55
Id. at p. 5.
56
Id. at p. 6.
57
Id.
58
Id. at pp. 6-7.
59
Id. at p. 7.
60
Id. at pp. 7-10.
9
Lewis also argues that she has evidence of disparate treatment by Copeland, who allegedly treated
other employees well, but treated Lewis and Bergeron, another African-American female employee,
poorly and with disrespect.61 Lewis also notes that she and Bergeron were prohibited by Copeland from
wearing their uniforms until they completed their probationary period, but that they were the only
employees subjected to this rule.62 In addition, Lewis submits evidence that Copeland only kept a "Verbal
Discussions" document for Lewis and Bergeron, but not for Mayet, a Caucasian employee with alleged
performance issues.63 Moreover, Lewis claims that Mayet had numerous performance issues raised by
Copeland, but that no adverse employment actions were taken against her.64
Based on these factual allegations, supported by deposition testimony, Lewis argues that she has
established a prima facie case of race discrimination, and notes that Defendant has only challenged the
second and fourth prongs. With regard to her qualification, Lewis argues that under Fifth Circuit
precedent "a plaintiff only has to show she has the necessary qualifications for her job at the time of the
adverse action, meaning that she had not suffered physical disability or loss of a necessary professional
license or some other occurrence that rendered her unfit for the position for which she was hired."65 In
response to Defendant's claim that Lewis was not qualified for the position, Lewis states:
[Defendant] contends that because Ms. Lewis did not graduate from high school, she was
not qualified for her job. This is grasping at straws. Ms. Lewis had over 15 years
experience working in the medical setting, specifically in doctor['s] offices. The fact that
she does not have a high school diploma does not render her unable to do the Patient
Access Representative II job. She did not suffer any physical disability or lose a
professional license. In the Competency Checklist, Ms. Copeland marked Mr. Lewis as
61
Id. at pp. 10-11.
62
Id.
63
Id. at p. 12.
64
Id.
65
Id. at p. 15 (citing Bienkowski v. Am Airlines, Inc., 581 F.2d 1503, 1506 & n. 3 (5th Cir. 1988)).
10
competent on several skills required to do her job position. This argument is wholly
without merit.66
Concerning the fourth prong, Lewis argues that she need only show that she was replaced by
someone outside of the protected class, but does not need to show that she was treated less favorably than
other similarly situated employees outside of the protected class, and it is undisputed that Lewis was
replaced by a Caucasian individual.67 Therefore, Lewis posits she has established a prima facie case.
Assuming she has established a prima facie case, Lewis further contends that she has produced
sufficient evidence to create a genuine issue of material fact that Defendant's alleged reason for her
termination was a pretext for racial discrimination. First, Lewis argues that she has submitted "ample
evidence" to dispute that she was terminated for not meeting performance standards. She highlights the
deposition of Bergeron and Dr. McKinnie's statements that she was an exceptional employee.68 Lewis
avers that her testimony, coupled with that of Dr. McKinnie and Bergeron, "cast serious doubt on Ms.
Copeland's alleged basis for terminating Ms. Lewis."69 Lewis also maintains that she has submitted
evidence that Lewis was treated less favorably than Mayet.70
In addition, Lewis notes that in employment discrimination cases, the focus is on the final
decision maker in determining whether an adverse employment action was taken because of an unlawful
motive.71 However, Lewis invokes the "cat's paw" theory, where an employee can impute a co-worker's
unlawful motive to the ultimate decisionmaker if that employee had influence over the decision maker,
66
Id.
67
Id.
68
Id. at pp. 17-19.
69
Id. at p. 19.
70
Id. at pp. 19-20.
71
Id. at pp. 20-21 (citing Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002)).
11
thereby establishing a causal link between the unlawful motive and the adverse employment action.72
Lewis reiterates her argument that Copeland's recommendation was the entire basis for Defendant's
decision to terminate her.73 Finally, Lewis argues that evidence of racially derogatory remarks is not
required to prove race discrimination, and that in the absence of such evidence she should still defeat
summary judgment.
C. Defendant's Reply
In reply, Defendant disputes Lewis's characterization of Dr. McKinnie's role in hiring and
personnel matters.74 Defendant explains that Dr. McKinnie was employed by Defendant and had no
ownership stake. When he joined Defendant, he was asked to bring over four employees from his previous
office, but normally hiring decisions are made by the office manager, and not the physician.75 Two of Dr.
McKinnie's recommendations accepted employment with Defendant, Lewis and Bergeron, and were
placed on a probationary period. Defendant also notes that shortly after Dr. McKinnie began work with
Defendant, he injured his back and "worked approximable one-half day [in the office] twice per week,"
during Lewis's probationary period.76 Therefore, Defendant contends that Dr. McKinnie was not in a
better position than Copeland to evaluate Lewis's performance.
Next, Defendant again argues that Lewis fails to establish a prima facie case. Defendant focuses
on Lewis's lack of a high school degree, which would have made Lewis's employment a violation of
Defendant's policy.77 Defendant explains:
72
Id. at p. 21 (citing Gollas v. Univ. of Tex. Health Sci. Ctr., 425 F. App'x 318, 326 (5th Cir. 2011)).
73
Id. at pp. 22-23.
74
Rec. Doc. 36.
75
Id. at p. 2 (citing deposition testimony).
76
Id. at pp. 2-3.
77
Id. at p. 4 (citing Affidavit of Nicole Yeatman, Rec Doc. 36-1 at ¶ 32).
12
Although Lewis and [Defendant] differ on the precise standard regarding proof of a prima
facie case, it is undisputed that a plaintiff in a Title VII race discrimination claim must
show, inter alia, that she was qualified for the position in question. Notwithstanding
Lewis’ own belief about her qualifications and work experience, Dr. McKinnie’s opinion
about her work at Tulane and Bergeron’s opinion about her capabilities, [Defendant] is
well-within its right to require that its employees possess certain academic credentials.
Because Lewis did not possess the academic credentials required by [Defendant], she
cannot show that she was qualified for the position in question. Accordingly, Lewis
cannot establish a prima facie case of race discrimination.78
With regard to the dispute as to the correct standard, Defendant notes that the standard cited by Lewis
does not require that she show, for the purposes of establishing a prima facie case, that she was treated
less favorably because of her membership in a protected class than another similarly situated person that
was not a member of the protected class; in contrast, the authority cited by Defendant does require such
a showing. Defendant argues that the cases cited by Lewis predate its authority, but that regardless both
iterations of the standard require a showing that the person was qualified for the position.79
Once again assuming that Lewis has made a prima facie case, Defendant argues that Lewis
nonetheless fails to produce substantial evidence of pretext. Defendant avers that Lewis's contention that
Defendant's reason for termination is unworthy of credence is based upon "incompetent, inadmissible
testimony," because Dr. McKinnie admits he rarely witnessed Lewis's performance during her
probationary period due to his injury.80 Further, Defendant notes that Lewis's argument relies on
Bergeron's declaration to suggest that Lewis was competent and qualified. However, Defendant maintains
that pursuant to Federal Rule of Evidence 701, such opinion testimony is inadmissible and cannot suffice
to defeat summary judgment.81
Finally, Defendant refutes Lewis's contention that it did not thoroughly evaluate Copeland's
78
Id.
79
Id. n.17.
80
Id. at p. 5.
81
Id. at p. 7.
13
complaints about Lewis.82 In fact, Defendant cites to the deposition of Nicole Yeatman, of Human
Resources, who states that she had several conversations with Copeland, reviewed various documents,
and had conversations with other individuals regarding the complaints.83
III. Law and Analysis
A. Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, 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."84 When assessing whether a dispute as to any material fact exists,
the court considers "all of the evidence but refrains from making credibility determinations or weighing
the evidence."85 All reasonable inferences are drawn in favor of the nonmoving party, but "'conclusory
allegations supported by a conclusory affidavit will not suffice to require a trial.' This is true even if the
movant cannot demonstrate contrary facts by specific affidavit recitation to rebut the conclusory
affidavit."86 If the record, as a whole, could not lead a rational trier of fact to find for the nonmoving party,
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.87
Because factual disputes may not be resolved on summary judgment, a plaintiff need not offer
all of its evidence, but rather only enough so that a jury might return a verdict in its favor.88 If the
82
Id.
83
Id. at p. 8.
84
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
85
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
86
Travelers Ins. Co. v. Liljeberg Enters., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993) (quoting Shaffer v. Williams,
794 F.2d 1030, 1033 (5th Cir. 1986)).
87
Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 147-48 (5th Cir. 1992).
88
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir. 1991).
14
nonmovant would bear the burden of proof at trial on a claim, the movant may simply point to the absence
of evidence, which then returns the burden on the motion for summary judgment to the nonmovant.89
Then, the nonmovant must point to competent evidence that there is an issue of material fact so as to
warrant trial.90 To defeat summary judgment, the nonmovant must direct the court’s attention to specific
evidence in the record to establish an issue of material fact as to each claim upon which it will bear the
burden of proof at trial.91 "The opponent must meet the movant’s affidavits with opposing affidavits that
set out specific facts showing an issue for trial."92
B. Burden Shifting Scheme- Generally
In addition to the standard applied to motions for summary judgment, the United States Supreme
Court has developed a burden shifting scheme for claims arising under Title VII of the Civil Rights Act
of 1964, to deal with cases in which discrimination can be proved only by circumstantial evidence.93 It
is undisputed that such a burden shifting scheme is appropriate here, as Lewis has not presented direct
evidence of racial discrimination. The burden first rests on the plaintiff to prove a prima facie case of
discrimination.94 "If a plaintiff is successful in establishing a prima facie case of discrimination, [there
is a presumption of discrimination] and the burden then shifts to the defendant to produce a legitimate,
nondiscriminatory justification for its actions."95 "Once the employer produces a legitimate
nondiscriminatory reason, the presumption of discrimination dissipates. The plaintiff bears the ultimate
89
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994) (per curiam).
90
Id.
91
Rizzo v. Children’s World Learning Ctrs., 84 F.3d 758, 762 (5th Cir. 1996).
92
Travelers, 7 F.3d at 1206-07.
93
See Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133 (2000); see also Evans v. City of Houston, 246
F.3d 344, 350 (5th Cir. 2001).
94
Evans, 246 F.3d at 350.
95
Id.; Wallace, 271 F.3d at 219.
15
burden of persuading the trier of fact by a preponderance of the evidence that the employer intentionally
discriminated against her because of her protected status."96 "To carry that burden, the plaintiff must
produce substantial evidence of pretext."97 The plaintiff must put forward evidence rebutting each of the
nondiscriminatory reasons the employer articulates.98
C. Analysis
1. Correct Standard for a Prima Facie Case
As noted in the reply brief submitted by Defendant, the parties have cited slightly different
standards regarding the requirements Lewis must meet to establish a prima facie case.99 Lewis states the
standard articulated by the Fifth Circuit in its 1999 decision Shackleford v. Deloitte & Touche, LLP,100
which stated that a prima facie case is established if a plaintiff can prove she: "(1) is a member of a
protected class; (2) was qualified for her position; (3) was subjected to an adverse employment action;
and (4) was replaced by someone outside the protected class."101 In contrast, Defendant cites the standard
articulated in the Fifth Circuit's 2011 decision Wesley v. General Drivers, Warehousemen and Helpers
Local 745,102 where the Fifth Circuit stated that a prima facie case is established by a showing that:
(1) [the plaintiff] is a member of a protected class, (2) [the plaintiff] was qualified for the
position at issue, (3) [the plaintiff] was the subject of an adverse employment action, and
(4) [the plaintiff] was treated less favorably because of his membership in that
96
Wallace, 271 F.3d at 219.
97
Auguster v. Vermillion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001).
98
Wallace, 271 F.3d at 220.
99
See Rec. Doc. 36 at p. 4 & n. 17.
100
190 F.3d 398 (5th Cir. 1999).
101
Id. at 404.
102
660 F.3d 211 (5th Cir. 2011).
16
protected class than were other similarly situated employees who were not members of
the protected class, under nearly identical circumstances.103
As the emphasized portion above highlights, the fourth prong of the prima facie case is different
in Shackelford and Wesley. However, this does not expose a split within the Fifth Circuit's jurisprudence
on claims of racial discrimination. In McDonnel Douglas Corp. v. Green,104 the landmark United States
Supreme Court case that first established this burden shifting scheme, the Supreme Court recognized that
"[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof
required from respondent is not necessarily applicable in every respect to differing factual situations."105
Therefore, the required elements necessary to establish a prima facie case vary depending on the situation
presented. However, for the reasons explained below, the Court need not decide which of these standards
applies to this case, because either standard would yield the same result.
2. Does Lewis Establish a Prima Facie Case?
Both parties' proposed standards are similar in that each includes a factor that requires that a
plaintiff demonstrate she was qualified for her position. On this issue, Defendant has submitted evidence
that one of the qualifications for the position of Patient Access Representative II is that the candidate be
a high school graduate.106 Lewis concedes in her deposition that she did not attend high school.107
Moreover, through the affidavit of Nicole Yeatman, Director of Team Member Relations for Defendant,
103
Id. at 213 (quoting Lee, 574 F.3d at 249) (emphasis added).
104
411 U.S. 792 (1973).
105
Id. at 802, n. 13.
106
Rec. Doc. 30-13 at p. 1.
107
Rec. Doc. 30-12 at p. 3.
17
Defendant has submitted evidence that "it would have been against [Defendant's] policy to hire Lewis had
it been known that Lewis did not possess a high school diploma."108 Plaintiff does not dispute these facts
or challenge the propriety of this qualification, but rather claims that the argument that she is not qualified
is "wholly without merit" because Lewis has over 15 years experience "working in the medical setting,
specifically in doctor's [sic] offices."109 Plaintiff also cites Bienkowski v. American Airlines, Inc.,110 to
claim that she meets all of the position's qualifications because "she ha[s] not suffered physical disability
or loss of a necessary professional license or some other occurrence that rendered her unfit for the position
for which she was hired."111
Bienkowski was an age discrimination case under the Age Discrimination in Employment Act
("ADEA"), whereas here Lewis alleges race discrimination under Title VII of the Civil Rights Act of
1964. However, the Fifth Circuit has held that claims of race discrimination under Title VII and age
discrimination under the ADEA are "evaluated under the same analytical framework."112 In Bienkowski,
the Fifth Circuit stated that "a plaintiff challenging his termination or demotion can ordinarily establish
a prima facie case of age discrimination by showing that he continued to possess the necessary
qualifications for his job at the time of the adverse action."113 The court clarified that "[b]y this we mean
that plaintiff had not suffered physical disability or loss of a necessary professional license or some other
occurrence that rendered him unfit for the position for which he was hired."114 Lewis asks this Court to
108
Rec. Doc. 36-1 at ¶ 32.
109
Rec. Doc. 31 at p. 15.
110
851 F.2d 1503 (5th Cir. 1988).
111
Rec. Doc. 31 at p. 15.
112
Evans, 246 F.3d at 349.
113
851 F.2d at 1506.
114
Id. n. 3.
18
narrowly construe "qualifications" based on Bienkowski. While it is true she did not "lose a professional
license" nor did some later "other occurrence" render her unfit for duty, the fact remains that she was
never qualified for the position with Defendant because she did not have a high school diploma. The
United States Court of Appeals for the First Circuit expressly recognized in Loeb v. Textron, Inc.,115 that
"basic qualifications for the job, in terms of degrees, certificates, skills and experience" are relevant to
this analysis.116
The Court notes that the Bienkowski court explicitly declined to follow Loeb in so far as Loeb
created a presumption that "the fact that [a plaintiff] was hired initially indicates that he had the basic
qualifications for the job, in terms of degrees, certificates, skills and experience."117 However, the
Bienkowski court did not take issue with the consideration of "degrees, certificates, skills [or]
experience" in assessing whether a plaintiff was qualified, just the presumption described before.
Therefore, here, the Court does not assume that because Lewis was initially hired that she had all the
basic qualifications for the position. Moreover, the Bienkowski court's rejection of the Loeb court's
presumption adds credence to Defendant's argument here. Lewis was initially hired on a probationary
period by Defendant, despite not having a high school diploma. In fact, Defendant has submitted
unrefuted evidence that Defendant was not aware of this fact when it hired her.118 Without the Loeb
presumption, the burden rests solely on Lewis to submit evidence that she was qualified in order to
establish her prima facie case, which she cannot do because one of the qualifications for the position
is a high school degree.
115
600 F.2d 1003 (1st Cir. 1979).
116
Id. at 1013, n. 10 (emphasis added).
117
851 F.2d at 1505-06.
118
See Rec. Doc. 36-1 at ¶ 32.
19
Further, in Merwine v. Board of Trustees for the State Institutions of Higher Learning,119 the
Fifth Circuit affirmed a district court entering a judgment notwithstanding the verdict, upon the district
court's finding that the plaintiff failed to establish her qualification for the position, and thus failed to
establish a prima facie case. There, it was uncontested that the plaintiff did not have the required
degree for the position. Despite the introduction of evidence "to inform the jury that her qualifications
and experience were equivalent to the average qualifications and experience of [an individual who held
the required degree,]" the Fifth Circuit held that this evidence "fail[ed] to contradict or diminish in any
way the simple, uncontested and stipulated fact that [the plaintiff] did not possess the published
minimum educational requirement-the ALA-MLS degree-for the position of faculty librarian at
MSU."120 Therefore, the court held that "the conclusion that [the plaintiff] was not qualified for the
position is indisputable and a jury verdict to the contrary could not have been reached by reasonable
persons."121
Here, it is undisputed that Lewis did not have one such basic requirement – a high school
degree. As such, Lewis did not "possess the necessary qualifications for [her] job at the time of the
adverse action."122 While Lewis attempts to rebut this conclusion by emphasizing her long experience
119
754 F.2d 631 (5th Cir. 1985).
120
Id. at 637.
121
Id. (footnote omitted). The Court notes that in Merwine, the plaintiff alleged discrimination in hiring,
whereas here Lewis alleges that she was improperly terminated from her employment. However, the Court notes that
it is undisputed that Lewis was on a probationary period at the time of her "termination," and she had never received an
offer of permanent employment. In fact, Lewis has stated that the end of her employment with Defendant came about
because she was not offered permanent employment at the end of her probationary period. See Rec. Doc. 31 at pp. 6-7.
Therefore, this case falls somewhere in the middle of a discriminatory hiring action and one for discriminatory
termination. Nonetheless, as discussed above, the Bienkowski court made clear that courts within this Circuit are to make
no presumption that an employee has the basic qualifications for a job merely because she was initially hired. 851 F.2d
at 505-06. Therefore, the Merwine court's recognition that a plaintiff's degrees, or lack thereof, is relevant to an ultimate
determination of his or her qualifications to establish a prima facie case of discrimination, is informative on the Court's
analysis here.
122
See Bienkowski, 851 F.2d at 1506.
20
in the field before her employment with Defendant, the Merwine court expressly rejected that such
evidence could compensate for a plaintiff's failure to hold the "minimum educational requirement"
necessary for the position.123 Therefore, Lewis cannot establish a prima facie case of racial
discrimination and fails to defeat the pending motion for summary judgment with regard to her claim
of racial discrimination under Title VII of the Civil Rights Act of 1964.
3. Remaining State Law Claim
In the briefing associated with this motion, both parties appear to disregard that Lewis also
alleged a state law cause of action under the Louisiana Employment Discrimination Law, La. R.S. §
23:301 et seq,124 over which this Court has pendant jurisdiction even after dismissing the only federal
claim.125 While the pending motion requests dismissal of Lewis's entire complaint, the substance of the
motion only addresses Lewis's federal cause of action. Section 1367(c)(3) specifically grants district
courts the discretion to retain or decline supplemental jurisdiction once it has dismissed all claims over
which it has original jurisdiction, such as Lewis's claim under Title VII.126
The United States Supreme Court in United Mine Workers of America v. Gibbs,127 instructed
that "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote
justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly,
if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense,
the state claims should be dismissed as well."128 However, the Fifth Circuit has held that "[w]e look
123
754 F.2d at 637.
124
Rec. Doc. 1 at ¶ 12.
125
28 U.S.C. 1367(c)(3).
126
See Cudd Pressure Control Inc. v. Roles, 328 F. App’x 961, 966 n. 2 (5th Cir. 2009)
127
383 U.S. 715 (1966).
128
Id. at 726.
21
to federal employment discrimination jurisprudence when interpreting Louisiana's anti-discrimination
laws."129 Moreover, in the specific context of a claim under the Louisiana Employment Discrimination
Law, the Fifth Circuit has required a plaintiff to establish the same prima facie case of race
discrimination as required under federal Title VII claims. As the standard applicable to Lewis's federal
and state law claims is identical, and Lewis's claims fail under that standard, it would be futile for this
Court to decline pendant jurisdiction over the remaining state law claim so that she could refile in the
appropriate state court. Therefore, the Court will dismiss Lewis claim under the Louisiana
Employment Discrimination Law as well.
IV. Conclusion
For the reasons stated above,
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment130 is
GRANTED and Lewis's complaint is DISMISSED WITH PREJUDICE;
NEW ORLEANS, LOUISIANA, this ____ day of July, 2013.
_______________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
129
Baker v. FedEx Ground Package Sys. Inc., 278 F. App'x 322, 327 (5 th Cir. 2008) (citing Smith v. Amedisys,
Inc., 298 F.3d 434, 448 (5th Cir. 2002)).
130
Rec. Doc. 30.
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?