Morgan v. Ochsner Community Hospitals
Filing
35
ORDER & REASONS re dft Ochsner Clinic Foundation's 20 Motion for Summary Judgment: for the reasons stated, IT IS HEREBY ORDERED that Motion for Summary Judgment filed by Ochsner is DENIED. Signed by Judge Nannette Jolivette Brown on 3/18/2013. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEVIN MORGAN
CIVIL ACTION
VERSUS
CASE NO. 12-1111
OCHSNER CLINIC FOUNDATION
SECTION: “G”(2)
ORDER AND REASONS
Before the Court is Defendant Ochsner Clinic Foundation's ("Ochsner") Motion for
Summary Judgment,1 wherein Ochsner requests that summary judgment be entered against Plaintiff
Kevin Morgan ("Plaintiff") on his claim of race discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000(e). Having considered the motion, the memorandum in
support, the response, the reply, the record, and the applicable law, the Court will deny the Motion
for Summary Judgment.2
I. Background
A. Factual Background
Plaintiff is a 45 year old African-American man. After working for Ochsner prior to
Hurricane Katrina, Plaintiff was rehired as a Patient Care Technician ("PCT") to work the night shift
at Ochsner's main campus in Jefferson, Louisiana in Ochsner's Oncology Department (hereinafter,
"Oncology") in March or February of 2010.3 In June of 2010, Plaintiff was notified by a document
entitled "Occurrences"4 that he was witnessed twice "yelling" on the telephone, which Ochsner
deemed inappropriate, and informed him that another instance could result in corrective action.
1
2
Rec. Doc. 20.
Id.
3
Rec. Doc. 20-3 at p. 1; Rec. Doc. 30 at p. 3.
4
Rec. Doc. 20-4 at p. 34.
Plaintiff reviewed this document with the charge nurse responsible for supervising Plaintiff on the
night shift, Ms. Ashley Labat, and signed it; however, Plaintiff's account of this incident maintains
that it was a "verbal warning for being on the phone once with his teen aged boy, Kevin Lee
Morgan."5 Thereafter, Ochsner notified some employees, including Plaintiff, that they should look
for other available positions with Ochsner, because Oncology would no longer be employing PTCs.
Plaintiff applied for another job in Ochsner's Skilled Nursing Facility (hereinafter, "SNF"), and was
offered a job by Ms. Jane Braendel, the unit director of the SNF.
Prior to his transfer to the SNF but after receiving the offer from Ms. Braendel, Plaintiff was
involved in an incident in Oncology on August 24, 2010, which resulted in his suspension without
pay for one day.6 According to the corrective action form completed as a result of the incident,
Plaintiff failed to perform a procedure, because he was asked to sit with another patient, and Plaintiff
and a nurse were subsequently witnessed yelling at each other in close physical proximity.7
Although Plaintiff was only suspended for one day, he did not work any subsequent shifts in
Oncology after this incident.
On September 13, 2010, Plaintiff began working in the SNF for Ms. Braendel. However,
Plaintiff worked the night shift, and was under the supervision of Ms. Jolene Cole, a nurse, and Ms.
Cindy Peterson, a charge nurse.8 On November 3, 2010, a final incident occurred which resulted
in Plaintiff's termination, according to the corrective action form detailing the events surrounding
the termination.9 According to Plaintiff, he was cleaning a patient, when Ms. Cole came into the
room to change a catheter. Plaintiff claims that the nurse became angry when Plaintiff asked her to
5
Rec. Doc. 30 at p. 3.
6
Rec. Doc. 20-4 at p. 35.
7
Rec. Doc. 30-2.
8
Rec. Doc. 30 at p. 3.
9
Rec. Doc. 20-4 at p. 38.
2
wait until he was finished, and this exchange allegedly led to a confrontation between Plaintiff and
Ms. Cole, although the specific details of the incident are disputed. Later that day, Ms. Braendel
terminated Plaintiff, after taking statements from Ms. Cole, Ms. Peterson, and Ms. Tiffany
Alexander, another PTC who was present.10 According to Plaintiff, three other people at the nurses
station witnessed the incident resulting in Plaintiff's termination, Ms. Zena Ruffin, Ms. Karen
Holmes, and Ms. Mary Ann Burke-Lavaccari, but statements were not obtained from these
individuals prior to Plaintiff's termination.11
On January 24, 2011, Michael Hulefeld, then CEO of Ochsner Medical Center in New
Orleans, concluded that the termination was justified and supported by Ochsner policy, and that
Plaintiff's "behavior was validated by witnesses who saw the events unfold," although the accounts
of Plaintiff's alleged witnesses were not before him because Ochsner concluded according to
Plaintiff–that "those individuals had not witnessed the event."12
B. Procedural Background
Plaintiff filed this action against Ochsner13 on May 1, 2012, claiming that his termination was
caused by discrimination on the basis of race in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000(e), et seq.14 Ochsner answered the complaint on July 6, 2012.15 The parties
did not consent to proceed before the magistrate judge, and therefore, the Court issued an order
10
Rec. Doc. 20-3 at p. 7.
11
Rec. Doc. 30 at p. 5.
12
Id. at pp. 10-11.
13
The complaint incorrectly named Ochsner Clinic Foundation as Ochsner Community Hospitals.
14
Compl., Rec. Doc. 1.
15
Answer, Rec. Doc. 6.
3
vacating the case referral to the magistrate.16 On February 11, 2013, Ochsner filed the instant
Motion for Summary Judgment.17 After receiving an extension from the Court, Plaintiff opposed
the instant motion on March 5, 2013,18 and Ochsner filed a reply with leave of court.19
II. Parties' Arguments
A. Ochsner's Motion for Summary Judgment
Ochsner argues that summary judgment should be entered dismissing Plaintiff's claims,
because Plaintiff cannot establish a prima facie case of race discrimination, and even if Plaintiff
could establish a prima facie case, he cannot prove that Ochsner's stated reason for
termination–multiple instances of aggressive behavior towards co-workers–was a pretext for
unlawful race discrimination.
Ochsner explains that Plaintiff bears the burden of proving that he was the victim of the
intentional discrimination.20 First, according to Ochsner, Plaintiff must establish a prima facie case
of race discrimination by proving: (1) he is a member of a protected class; (2) he was qualified for
the position; (3) he was discharged or subject to an adverse employment action; and (4) he was
treated less favorably than similarly situated individuals who were not members of the protected
class.21 Oschner argues that Plaintiff has no evidence that "the misconduct for which he was
discharged was nearly identical to that engaged in by a[n] employee [not within his protect class]
16
Rec. Doc. 11.
17
Rec. Doc. 20.
18
Rec. Doc. 30.
19
Rec. Doc. 33.
20
Rec. Doc. 20-3 at p. 13 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993)).
21
Id. (citing Frank v. Xerox Corp., 347 F.3d 130, 137 (5th Cir. 2003); Bryan v. McKinsey & Co., 375 F.3d 358,
360 (5th Cir. 2004)).
4
whom [the company] retained," and therefore cannot establish the fourth element required to
demonstrate a prima facie case of race discrimination and survive summary judgment.22 Ochsner
contends that although Plaintiff identifies Mr. Peter Haar as a similarly situated employee afforded
different treatment, Plaintiff provides no evidence that Mr. Haar also allegedly engaged in
threatening or aggressive behavior toward coworkers on multiple occasions, which is Ochsner's
stated reason for terminating Plaintiff. Ochsner further contends that even if Plaintiff was terminated
for failing to clean a patent, as Plaintiff claims, he presents no evidence that Mr. Haar was not as
severely disciplined for the same type of behavior.23
Ochsner recognizes that once Plaintiff establishes a prima facie case of discrimination, the
burden shifts to Ochsner to provide a "legitimate, nondiscriminatory reason for the adverse
employment action."24 Ochsner contends that "Plaintiff was discharged for two instances of acting
threatening and aggressive towards co-workers."25 Once Ochsner articulates a legitimate nondiscriminatory reason for discharging Plaintiff by pointing to admissible evidence in the record,26
Ochsner maintains that Plaintiff must "prove the defendant's proffered reason is not the true reason
for the employment decision but rather is a pretext for intentional discrimination."27 Ochsner
reasons that Plaintiff cannot meet his burden on summary judgment to show that a reasonable
factfinder could conclude that Ochsner's articulated reason for terminating Plaintiff is unworthy of
22
Id. at 15 (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001)).
23
Id.
24
Id. (citing Sandstand v. CB Richard Ellis, Inc., 309 F.3d 893 (5th Cir. 2002)).
25
Id. at p. 16.
26
Id. at p. 14 (citing Dees v. United Rentals N. Am., No. 11-0547, 2012 WL 1069183, at *3 (E.D. La. Mar. 29,
2012) (Brown, J.) (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000))).
27
Id. (citing St. Mary's Honor Ctr., 509 U.S. at 507-08).
5
credence and merely a pretext for race discrimination.28 According to Oschner, Plaintiff has
produced no evidence other than "merely denying the reason" that Plaintiff was terminated for acting
aggressively toward co-workers.29 Moreover, Ochsner notes that Plaintiff admitted on several
occasions that he had very little interaction with Ms. Braendel, although she was aware of the
previous incident in Oncology.30 Further, Ochsner explains that Ochsner Human Resources made
the decision to terminate Plaintiff after Ms. Braendel took statements from the individuals
involved.31 Finally, Ochsner contends that because Ms. Braendel hired Plaintiff less than three
months prior to terminating him, "the same actor inference applies such that there is an inference
that discrimination was not the motive behind the decision to terminate [Plaintiff]."32
B. Plaintiff's Opposition
First, Plaintiff claims that he has provided sufficient evidence to establish a prima facie case
of race discrimination. Specifically, Plaintiff notes that he provided deposition testimony that "his
Caucasian counterpart," Mr. Chris Majoria, was not terminated although Plaintiff performed his job
better.33 Additionally, Plaintiff asserts that Ochsner later replaced Plaintiff with a Caucasian male,
Peter Haar, who Plaintiff alleges was "a similarly situated PTC who also had an altercation with
[Ms. Braendel] for failing to clean a patient," and was not terminated.34
28
Id. at p. 16.
29
Id.
30
Id.
31
Id. at p. 17.
32
Id.
33
Rec. Doc. 30 at p. 12.
34
Rec. Doc. 1 ¶ 8.
6
Second, Plaintiff claims that "[u]nder the analysis given in the Supreme Court case Staub v.
Proctor Hospital, . . . Ochsner is liable for the discriminatory/retaliatory acts of Jolene Cole which
were motivated by discriminatory or retaliatory animus."35 Plaintiff avers that Ochsner is liable
under Title VII based on Staub, if he can show "by either direct or indirect evidence 1) that Jolene
Cole and /or Cynthia Peterson performed an act motivated by discriminatory animus, 2) that the act
was intended to cause [Plaintiff's] termination, and 3) that the act was a proximate cause of the
ultimate employment action."36 Under this analysis, Plaintiff reasons that it was "precisely Cole
and/or Peterson's race-mediated intention to get [Plaintiff] fired which actually and directly
influenced [Mr. Hulefeld] to finalize Morgan's termination."37 Plaintiff reasons that Ms. Braendel's
decision not to interview Ms. Ruffin, Ms. Holmes, and Ms. Burke-Lavaccari, who were at the nurses
station during the incident in the SNF, and Ms. Braendel's modification of her reason for the
termination from Plaintiff "not wanting to clean a patient" to his exhibition of "aggressive behavior"
caused Mr. Hulefeld to uphold Plaintiff's termination.38 According to Plaintiff, his termination
occurred "without any effective investigation or oversight from senior hospital administrators
whatever" because, other than Plaintiff's statement, only Ms. Cole, Ms. Peterson, and Ms.
Alexander's statements were in the record and available to Mr. Hulefeld when he made a decision
to uphold the termination.39 In support of this argument, Plaintiff references email communications
after his termination which, according to Plaintiff, suggest that the review of Plaintiff's termination
was "disorganized and uncertain."40
35
Rec. Doc. 30 at p. 12 (citing 131 S.Ct. 1186 (2011)).
36
Id. at p. 13 (citing 131 S.Ct. 1186).
37
Id. at pp. 13-14.
38
Id. at pp. 6-7.
39
Id.
40
Id. at pp. 8-10.
7
Third, Plaintiff contends that "[n]o additional evidence of discriminatory intent is required
if a plaintiff's prima facie case raises a genuine issue of material fact regarding the employer's
proffered reasons."41
Finally, Plaintiff asserts a "mixed motive" analysis should be applied to this case, because
Plaintiff has shown "that an impermissible reason played a motivating part, in the challenged
employment decision [which] shifts the burden of proof and persuasion to the defendant who must
show by a preponderance of the evidenced [sic] that it would have made the same decision in the
absence of the unlawful motive."42
C. Ochsner's Reply
In reply, Ochsner argues that Plaintiff makes a number of statements in his opposition to the
motion for summary judgment that are unsupported by evidence in the record and even contradicted
by Plaintiff's own deposition testimony.43 Moreover, Ochsner contends that many of Plaintiff's
assertions are only supported by statements made in the verified complaint, and the Court should
therefore not rely on the allegations that are expressly based upon Plaintiff's information and belief.44
Second, Ochsner notes that Plaintiff's complaint and testimony argue that he was treated
differently and worse than Mr. Haar, a Caucasian PTC who was not terminated; however, in
Plaintiff's opposition he makes no reference to Mr. Haar, and instead, argues that Plaintiff performed
his work as well as another PTC, Chris Majoria.45
41
Id. at p. 15.
42
Id.
43
Rec. Doc. 33 at p. 2.
44
45
Id. at p. 5.
Rec. Doc. 33 at pp. 8-9.
8
Finally, Ochsner contends that Plaintiff has no evidence that Ochsner's stated reason for
terminating Plaintiff was merely a pretext. Specifically, Ochsner notes that one of Plaintiff's own
witnesses stated that Ms. Cole and Ms. Peterson generally wanted to "rule the floor," but did not
"have it in" for African-Americans.46
III. Law and Analysis
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), when the pleadings and evidence demonstrate
that no genuine dispute exists as to any material fact, the moving party is entitled to judgment as a
matter of law, and summary judgment should be granted.47 Only if the evidence is such that a
reasonable jury could return a verdict in favor of the nonmoving party is the dispute “genuine.”48
In determining if a dispute exists such that a jury could return a verdict in favor of the nonmoving
party, the court is not to “make credibility determinations or weigh the evidence.”49 Instead, the
court must view the evidence in the light most favorable to the nonmoving party.50
If the dispositive issue is one on which the nonmoving party will bear the burden of proof
at trial, the moving party may satisfy its summary judgment burden merely by pointing out that the
46
Id. at p. 10.
47
Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”); Celotex Corp. v. Catrett, 477
U.S. 317, 323-25 (1986); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
48
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See also Boeing Co. v. Shipman, 411 F.2d 365,
374 (5th Cir. 1969) (en banc) (“If the facts and inferences point so strongly and overwhelmingly in favor of one party
that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion[] is proper.”).
49
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55. See
also Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008) (stating that the court
considers “all of the evidence in the record but refrains from making credibility determinations or weighing the
evidence”).
50
Int’l Fidelity Ins. Co. v. Sweet Little Mex. Corp., 665 F.3d 671, 679 (5th Cir. 2011).
9
evidence in the record is insufficient with respect to an essential element of the nonmoving party's
claim.51 At that time, the nonmovant must come forward with competent summary-judgment proof
of the existence of a genuine dispute regarding a material fact.52 However, mere conclusory
allegations are not competent summary-judgment proof, and are therefore insufficient to defeat a
motion for summary judgment.53 Likewise, unsubstantiated assertions, improbable inferences, and
unsupported speculation are not competent summary-judgment proof.54 Instead, the party opposing
summary judgment must identify specific evidence in the record55 and articulate the precise manner
in which that evidence supports his claim.56 Federal Rule of Civil Procedure 56 does not impose on
the court a duty to “sift through the record in search of evidence” to support the nonmovant’s
opposition;57 the burden to identify such evidence remains wholly on the nonmovant.58
“Only disputes over facts that might affect the outcome of the suit under the governing laws
will properly preclude the entry of summary judgment.”59 The court need not consider disputed fact
issues which are “irrelevant and unnecessary.”60 If the nonmovant fails to make a showing sufficient
51
See Celotex, 477 U.S. at 325.
52
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
53
Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
54
See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
55
Fed. R. Civ. P. 56(c); Ragas, 136 F.3d at 458.
56
Celotex, 477 U.S. at 324; Ragas, 136 F.3d at 458; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
57
Ragas, 136 F.3d at 458. See also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir.
58
Ragas, 136 F.3d at 458.
59
Anderson, 477 U.S. at 248.
60
Id.
1994).
1992).
10
to establish the existence of a factual dispute regarding an element essential to its case and on which
it will bear the burden of proof at trial, summary judgment must be granted.61
B. Employment Discrimination
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on
sex, race, color, religion, and national origin in employment decisions, including firing.62 In
McDonnell Douglas Corporation v. Green, the Supreme Court set out a three-part burden shifting
scheme for employment discrimination claims, the first step of which requires the plaintiff to set out
a prima facie case of employment discrimination.63 To establish a prima facie case of employment
discrimination under Title VII, the plaintiff must allege:
(1) membership in a protected group,
(2) qualification for the position in question,
(3) an adverse employment action, and
(4) circumstances that support an inference of discrimination.64
Under Title VII, once the plaintiff establishes its prima facie case, the burden shifts to the
defendant to provide a legitimate, nondiscriminatory reason for the adverse employment action.65
The defendant must point to admissible evidence in the record,66 but the burden is one of production,
not persuasion.67 The defendant is not required to show that the employment decision was proper,
61
Celotex, 477 U.S. at 322-23.
62
42 U.S.C. § 2000(e) et seq., as amended.
63
411 U.S. 792 (1973).
64
See 4-76 Employment Discrimination § 76.04.
65
See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893 (5th Cir. 2002).
66
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).
67
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
11
only that it was not discriminatory.68 “[E]ven an incorrect belief that an employee’s performance
is inadequate constitutes a legitimate, non-discriminatory reason” for adverse employment action.69
In fact, at this stage, the employer may succeed by proving that it would have taken the same action
even had it not considered the unlawful factor.70
Once the employer has offered a legitimate, nondiscriminatory reason for the adverse action,
the burden shifts back to the plaintiff. Under Title VII, the plaintiff must produce evidence that the
employer’s stated reason is merely pretext to cover up unlawful discrimination.71 To show pretext,
the plaintiff must either show disparate treatment or show that the proffered explanation is false or
unworthy of credence.72 To succeed at this third stage, a plaintiff “must do more than just dispute
the underlying facts and argue that [the employer] made the wrong decision . . . .”73 “Merely
disagreeing with an employer’s negative performance assessment is insufficient,” and a plaintiff
cannot survive summary judgment without an actual showing that the adverse employment action
was the result of discrimination.74
68
LeMaire v. La. Dep’t of Transportation & Development, 480 F.3d 383, 390 (5th Cir. 2007). See also Perez
v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091
(5th Cir. 1995) (“The question is not whether an employer made an erroneous decision; it is whether the decision was
made with discriminatory motive.”).
69
Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991).
70
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
71
Id.
72
Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378-79 (5th Cir. 2010).
73
LaMaire, 480 F.3d at 391
74
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999). See also Republic Ref. Co., 924
F.2d 93, 97; Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983).
12
C. Analysis
The circumstances of this case require the Plaintiff to first establish that (1) he is a member
of a protected class; (2) he was qualified for the position of PTC at Ochsner; (3) he was terminated;
and (4) the circumstances surrounding his termination support an inference of discrimination. Here,
the parties are only disputing the fourth element: whether the circumstances surrounding Plaintiff's
termination support an inference of racial discrimination. The Court finds that at the summary
judgment phase, where the Court should not weigh the evidence,75 Plaintiff has put forth enough
evidence to establish a prima facie case of race discrimination.
Plaintiff's own testimony and the allegations set forth in the complaint, the testimony of the
witnesses identified by Plaintiff, and the limited investigation allegedly performed by Ochsner
constitute sufficient evidence from which a jury could infer racial discrimination from the
circumstances surrounding Plaintiff's termination. Plaintiff specifically contends that the actions of
Ms. Cole and Ms. Peterson, for which Ochsner may be liable under the analysis set forth by the
Supreme Court in Staub,76 were motivated by racial discrimination because he is African-American.
Plaintiff supports this argument with his own allegations and testimony and the testimony of two coworkers, Ms. Holmes and Ms. Ruffin, stating that Plaintiff did his job well and even better than his
Caucasian counterpart, and yet was disfavored by Ms. Cole and Ms. Peterson.77
Moreover,
Plaintiff references the affidavit of Ms. Telina Slade, another of Plaintiff's co-workers, that states
75
Reeves, 530 U.S. at 150; Anderson, 477 U.S. at 254-55. See also Delta & Pine Land Co., 530 F.3d at 398
(stating that the court considers “all of the evidence in the record but refrains from making credibility determinations
or weighing the evidence”).
76
131 S.Ct. 1186.
77
Rec. Doc. 30 at pp. 3-4.
13
that Ms. Slade believed Ms. Cole and Ms. Peterson's treatment of Plaintiff was motivated by racial
prejudice.78 Although Ochsner contends that the Court should not rely on the affidavit of Ms. Slade
because it is not based on "specific examples of discriminatory behavior by Ms. Cole or Ms.
Peterson,"79 it would be inappropriate to evaluate the weight of the evidence upon a motion for
summary judgment.
Having found that Plaintiff has demonstrated a prima facie case of discrimination, the Court
must evaluate whether there is a genuine issue of material fact regarding whether Ochsner's stated
reason for terminating Plaintiff, namely two instances of aggressive and intimidating conduct toward
coworkers, is merely a pretext for wrongful discrimination. Again, Plaintiff has adduced enough
evidence to avoid summary judgment, by raising a disputed issue of material fact regarding the two
incidents leading to Plaintiff's termination. In both instances, Plaintiff's account of the events
leading to disciplinary action differs from Ochsner's account in material ways, and is supported, at
least in part, by deposition testimony of Plaintiff's co-workers. Plaintiff's account of the incidents
does not reveal that he was behaving aggressively toward coworkers. If, upon assessing the
credibility of Plaintiff and the other witnesses, the trier-of-fact concludes that Plaintiff was not
behaving in an aggressive or intimidating way, that may be strong evidence suggesting that the
actions of Ms. Cole, Ms. Peterson, and by extension Ochsner, were motivated by racial
discrimination.
78
Id. at p. 6.
79
Rec. Doc. 33 at p. 6.
14
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that Motion for Summary Judgment80 filed by Ochsner is
DENIED.
NEW ORLEANS, LOUISIANA, this
day of March, 2013.
________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
80
Rec. Doc. 20.
15
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