Hayes v. Audubon Nature Institute, Inc. et al
Filing
71
ORDER & REASONS granting in part and denying in part 54 Motion for Summary Judgment. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (lag, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIA HAYES
CIVIL ACTION
VERSUS
NO. 12-1548
AUDUBON NATURE INSTITUTE,
INC. ET AL.
MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.
ORDER AND REASONS ON MOTION
In this employment discrimination action, plaintiff, Tia Hayes, sued her former
employer, defendants Audubon Nature Institute, Inc. and Audubon Nature Institute
Foundation (collectively “Audubon”).1
She alleges hostile environment sex
discrimination in violation of Title VII and Louisiana state law, and retaliation in
violation of Title VII.
Audubon filed a motion for summary judgment, supported by deposition excerpts
and declarations under penalty of perjury, seeking dismissal of all of plaintiff’s claims.
Record Doc. No. 54. Hayes filed a timely opposition memorandum, supported by more
than 700 pages of exhibits, including complete deposition transcripts and her own
declaration under penalty of perjury. Record Doc. No. 58. Defendant received leave to
file a reply memorandum. Record Doc. Nos. 60, 66, 67.
1
Defendants assert that Audubon Nature Institute, Inc. was plaintiff’s employer and that Audubon
Nature Institute Foundation was never her employer. However, they do not seek summary judgment on
this issue.
This matter was referred to a United States Magistrate Judge for all proceedings
and entry of judgment in accordance with 28 U.S.C. § 636(c), upon the written consent
of all parties. Record Doc. No. 17.
Having considered the complaint, as amended, the submissions of the parties, and
the applicable law, and for the following reasons, I find that Hayes has offered no
competent evidence to rebut defendant’s legitimate, non-retaliatory reasons for
terminating her employment and that summary judgment should be granted as to her
retaliatory termination claim, but that genuine issues of material fact remain in dispute
as to her other claims. Accordingly, IT IS ORDERED that the motion is GRANTED IN
PART AND DENIED IN PART as follows.
I.
THE UNDISPUTED FACTS
The following facts are established by the competent summary judgment evidence
and are accepted as undisputed solely for purposes of the pending motion on plaintiff’s
claim of retaliatory termination only.
As of the summer of 2010, Hayes had been employed by defendant first as a
cashier and then as a team leader at the Audubon Zoo for more than ten (10) years. The
court assumes for purposes of her retaliatory termination claim only that she was
subjected to sexual harassment in the workplace by a supervisor, Lester Charles, for the
first time during the summer of 2010 and again on October 19, 2010. She reported the
2
sexual harassment to her own supervisor on October 20, 2010, who reported it to the next
level supervisor and to Audubon’s Human Resources department.
Shortly after the October incident, Hayes, her mother and her attorney met with
Audubon’s then-Vice President of Human Resources, Renee Brunt, and Audubon’s
attorney. During this meeting, plaintiff agreed to take a paid leave of absence pending
defendant’s investigation of her complaint against Charles. Brunt interviewed and
counseled Charles about the incident. Both Charles and Hayes were instructed to avoid
all contact with each other in the future.
Plaintiff returned to work around December 20, 2010. No further incidents of
sexual harassment occurred between Charles and Hayes during the remainder of her
employment.
More than eight (8) months later, on September 7, 2011, Hayes became ill at work
and left Audubon Zoo in an ambulance. She began a period of medical leave the next
day. She did not return to work after this date.
Audubon employees are entitled to twelve (12) weeks of job-protected time off
from their employment for medical reasons. Under that policy, plaintiff was expected
to return to work on December 8, 2011. When she did not return on that date, Audubon’s
Benefits Coordinator, Collette Smith Brannon, sent a letter to Hayes advising her that her
Family Medical Leave Act (“FMLA”) leave time had expired, requesting an update on
3
her medical condition and stating that “we have not received documentation to support
your need for a continued leave.” Plaintiff’s Exh. 13, Bates No. ANI-0055.
In response, Hayes provided defendant with a doctor’s note dated December 12,
2011, stating that she was unable to return to work because of her health. Audubon
received a second doctor’s note dated January 19, 2012, stating that Hayes remained
unable to work due to serious health problems. Defendant’s Exh. E, declaration under
penalty of perjury of Audubon’s Vice President of Human Resources, Toni Mobley, and
Exhs. B and C attached to her declaration.
During this time period, Hayes orally told Brannon and another Audubon
employee named Shaun that she could not return to work until she was released by her
doctor, but that she wanted to return to work.2 Plaintiff’s Exh. 2, deposition of Tia Hayes
at pp. 62-63. As of February 16, 2012, plaintiff’s doctor had not released her to work and
Audubon had received no written medical information since January 19, 2012. Id.;
Plaintiff’s Exh. 11, deposition of Collette Smith Brannon at p. 22; Plaintiff’s Exh. 12,
deposition of Toni Mobley at p. 87.
When Brannon informed Mobley on February 16, 2012 that Hayes had not
returned to work and was still unable to work, Mobley instructed Brannon to terminate
plaintiff’s employment. Brannon did so by letter to Hayes the same day. Plaintiff’s
2
Although Brannon testified that Hayes never communicated orally with her after plaintiff began
her sick leave, this fact dispute is resolved in favor of plaintiff’s version of events for purposes of
defendant’s summary judgment motion.
4
Exh. 14, Bates No. ANI-0054; Plaintiff’s Exh. 12, Mobley deposition at p. 85;
Defendant’s Exh. E, Mobley declaration; Defendant’s Exh. F, declaration under penalty
of perjury of Collette Smith Brannon. Before Hayes received this letter, no one at
Audubon had told her that her employment was going to be terminated.
Audubon’s stated reason for the termination was that Hayes was medically unable
to return to work despite having been granted a two-month extension of time since the
expiration of her 12 weeks of job-protected leave. Audubon has terminated several other
employees who were unable to return to work for medical reasons after their leave time
was exhausted. Plaintiff’s Exh. 12, Mobley deposition at p. 91; Defendant’s Exh. E.
On April 14, 2011, Hayes filed a charge of sex discrimination and retaliation with
the Equal Employment Opportunity Commission. On December 22, 2011, defendant’s
counsel sent a response to the EEOC charge. Plaintiff’s Exh. 17, letter from John W.
Ellinghausen to Mildred Johnson dated December 22, 2011.
II.
ANALYSIS
A.
Retaliatory Termination
Defendant argues that Hayes cannot establish a prima facie case of retaliatory
termination because she has no evidence of a causal connection between her original
complaint of sexual harassment in October 2010 and her termination sixteen (16) months
later on February 16, 2012. Alternatively, if plaintiff can establish a prima facie case,
Audubon contends that it has produced a legitimate, non-retaliatory reason for her
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termination and that she has failed to come forward with evidence to show that its
proffered reason was a pretext for retaliation.
Hayes argues that the close temporal proximity between defendant’s response on
December 22, 2011 to her EEOC charge and her termination less than two months later
on February 16, 2012 establishes a causal connection for purposes of her prima facie
case. She also contends that Audubon cannot demonstrate that her employment was
terminated for its stated reason that she failed to return to work after the expiration of her
leave because she was not terminated when her leave expired on December 8, 2011, but
was only asked to provide medical updates, which she did twice. She argues that a trier
of fact could find retaliation because she was terminated a month after Audubon received
the second doctor’s note without any further communication from defendant telling her
that she was subject to termination. She states in her declaration in support of her
opposition that, “[a]lthough I was not told that I was terminated because of the
unwelcome sexual harassment, I am not aware of any other basis for my termination that
is not a pretext.” Plaintiff’s Exh. 3, declaration under penalty of perjury of Tia Hayes,
at ¶ 24 (emphasis added).
A plaintiff establishes a prima facie case of retaliation by showing
(i) [s]he engaged in a protected activity, (ii) an adverse employment action
occurred, and (iii) there was a causal link between the protected activity
and the adverse employment action. If the plaintiff successfully presents
a prima facie case, the burden shifts to the employer to provide a legitimate,
non-retaliatory reason for the adverse employment action. If the defendant
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presents evidence that supports that it acted properly, the fact-finder must
decide whether retaliation was the but-for cause for the employer’s action.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir.), cert. denied sub. nom
Ketterer v. Yellow Transp., Inc., 133 S. Ct. 136 (2012) (quotation and citations omitted).
Initially, I find that Hayes has not provided any competent summary judgment
evidence to establish the third prong of a prima facie case of retaliatory termination. It
is undisputed that she engaged in protected activity by complaining of discrimination or
retaliation on two occasions: October 20, 1011, when she reported sexual harassment to
her supervisor, and April 14, 2011, when she filed a charge of sex discrimination and
retaliation with the EEOC.
“‘Close timing between an employee’s protected activity and an adverse action
against [her] may provide the ‘causal connection’ required to make out a prima facie case
of retaliation.” Cobb v. Singing River Health Sys., 503 F. App’x 290, 293 (5th Cir.
2012) (quoting Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997))
(emphasis added). However, the Supreme Court and the Fifth Circuit have made it clear
that, “to be persuasive evidence, temporal proximity must be very close.” Strong v.
Univ. Health Care Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (citing Clark Cnty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)) (emphasis added).
Hayes has cited no law, and my research has located none, for the proposition that
a causal connection is established for purposes of her prima facie case by the mere
temporal proximity of less than two months between defendant’s response to her EEOC
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charge, which had been filed eight months earlier, and her termination. It is undisputed
that plaintiff was terminated ten (10) months after she engaged in her last protected
activity. Such a lengthy gap on its own is insufficient, as a matter of law, to establish a
causal connection.
Numerous courts have held that temporal proximity evidence alone cannot
support an inference of causation when there is a four-month gap between
the protected activity and the adverse employment action. See Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 . . . (2001) (surveying
temporal proximity cases and noting cases have found a lapse of up to three
or four months too large to support causation) . . . . We cannot infer
causation in this case because the temporal proximity evidence shows a
six-month gap between Dr. Russell’s filing of the grievance (October 2003)
and the non-renewal of the contract (April 2004).
Russell v. Univ. of Tex., 234 F. App’x 195, 206 (5th Cir. 2007) (emphasis added).
Even if the court were to assume without deciding that Hayes can establish a prima
facie case of retaliation, Audubon has met its burden to articulate legitimate, nonretaliatory reasons for terminating her employment. “Defendant’s burden is one of
production, not persuasion . . . .” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
142 (2000) (quotation omitted). Audubon must merely set forth, through admissible
evidence, “reasons for its actions which, if believed by the trier of fact, would support a
finding that unlawful discrimination was not the cause of the employment action.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (emphasis in original); see Moffett
v. Miss. Dep’t of Mental Health, 507 F. App’x 427, 431 (5th Cir. 2013) (same burden as
to retaliation claims).
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Thus, defendant “‘need not prove that it was actually motivated by its proffered
reason.’ . . . . ‘The employer need only articulate a lawful reason, regardless of what its
persuasiveness may or may not be.’” Joseph v. City of Dallas, 277 F. App’x 436, 439
(5th Cir. 2008) (quoting Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004);
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993)); accord Turner v. Kan.
City S. Ry., 675 F.3d 887, 900 (5th Cir. 2012).
“‘If the employer meets its burden of production, the plaintiff then bears the
ultimate burden of proving that the employer’s proffered reason . . . is a pretext for the
real . . . retaliatory purpose. To carry this burden, the plaintiff must rebut each . . .
nonretaliatory reason articulated by the employer.’” Moffett, 507 F. App’x at 431
(quoting McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007)) (ellipses by
Fifth Circuit).
Audubon has carried its burden of production by presenting competent summary
judgment evidence of its legitimate, non-retaliatory reason for terminating Hayes, i.e.,
that her twelve (12) weeks of leave had expired two months earlier and that, according
to all the information that Hayes herself had provided to defendant, she was still
medically unable to work. The burden therefore shifts to Hayes to “‘offer some evidence
from which the jury may infer that retaliation was the real motive.’” Id. at 432 (quoting
Swanson, 110 F.3d at 1188) (emphasis added).
9
Even if the time period between defendant’s response to plaintiff’s EEOC charge
and the termination of her employment is sufficient to establish a causal connection for
purposes of the third prong of her prima facie case, that fact alone is not sufficient to
establish but-for causation.
To defeat a motion for summary judgment, a plaintiff must
demonstrate “a conflict in substantial evidence on [the] ultimate issue” of
“but for” causation. “Evidence is ‘substantial’ if it is of such quality and
weight that reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions.” Temporal proximity, standing
alone, is not enough.
Hernandez, 670 F.3d at 658 (quoting Long v. Eastfield College, 88 F.3d 300, 308 (5th
Cir. 1996)) (citing Strong, 482 F.3d at 808) (emphasis added); see also Lorentz v. Alcon
Labs., Inc., No. 13-20049, 2013 WL 3368987, at *3 n.5 (5th Cir. July 8, 2013) (citing
Wilson v. Noble Drilling Servs., Inc., 405 F. App’x 909, 914 (5th Cir. 2010))
(“suspicious timing without more is insufficient to show pretext”); Roberson v. Alltel
Info. Servs., 373 F.3d 647, 656 (5th Cir. 2004) (Plaintiff’s “argument is reduced to the
following: the sole evidence of Alltel’s retaliation is that the reduction-in-force occurred
after his discrimination complaints. On the other hand we have Alltel’s undisputed
legitimate, nondiscriminatory reason for its employment action: a company-wide
reduction-in-force.
Without more than timing allegations, and based on Alltel’s
legitimate, nondiscriminatory reason in this case, summary judgment in favor of Alltel
was proper.”); Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002)
10
(“Other than the five month time period, Raggs has presented no evidence of retaliation.
Thus, we conclude that MP&L’s decision not to rehire Raggs in 1999 was not a function
of retaliation.”).
The Supreme Court recently clarified that “Title VII retaliation claims require
proof that the desire to retaliate was the but-for cause of the challenged employment
action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). “This
requires proof that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.” Id. at 2533.
In the instant case, Hayes has produced no evidence to rebut defendant’s nonretaliatory and non-discriminatory reason for terminating her employment, i.e., that she
was medically unable to work, or to create a triable issue of fact that retaliation was the
but-for cause of her termination. Audubon notified Hayes on December 8, 2012 that her
medical leave had expired. She provided defendant with two successive doctor’s notes
stating that she could not work. As of February 16, 2012, her doctor had not released
Hayes to work and she had told Brannon and another Audubon employee, Shaun, during
the interim that she was medically unable to return to work. Based on the information
in defendant’s possession, which is undisputed, Mobley decided to terminate plaintiff’s
employment because she could not work, and her leave time had long expired.
Audubon allowed plaintiff to remain an employee for two months after her leave
expired. Contrary to plaintiff’s argument, defendant’s gratuitous action does not lead in
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any conceivable way to an inference that the stated reason for terminating her was a
pretext for retaliation. She has identified neither any law nor any evidence that Audubon
either was required or had promised to continue her employment, despite her continued
medical inability to work. See Lorentz, 2013 WL 3368987, at *4 n.7 (quoting 29 C.F.R.
§ 825.700(a)) (The Fifth Circuit affirmed a summary judgment that defendant did not
terminate plaintiff’s employment in retaliation for her having taken FMLA leave, but
because she continued to miss work after returning from leave. “[T]he problem is that
the amount of leave was insufficient for Lorentz to resolve her problems at home.
However, while an employer may ‘provide[ ] greater unpaid family leave rights than are
afforded by FMLA,’ it is not required to do so.”) (emphasis added).
It is also undisputed that Audubon terminated other employees who were unable
to return to work after their medical leaves had expired, pursuant to its policy. See
Chaney v. New Orleans Pub. Facility Mgmt., 179 F.3d 164, 168 (5th Cir. 1999) (When
“the employer has articulated a rational justification for terminating an employee, and the
facts supporting that justification are not seriously disputed, the task of proving pretext
becomes quite difficult. . . . Without evidence of disparate treatment, it is difficult to
maintain that a straightforward application of workplace policies and procedures was
pretextual.”). Hayes has presented no evidence to rebut Audubon’s evidence that other
employees whose leave had expired and who could not work were also terminated.
12
The instant case is similar to Mitchell v. Sikorsky Aircraft, No. 12-10523, 2013
WL 3239439 (5th Cir. Mar. 5, 2013), in which the Fifth Circuit affirmed summary
judgment for the employer because plaintiff failed to rebut its legitimate, non-retaliatory
reason for terminating her employment.
The district court found that Mitchell failed to offer any evidence
that Sikorsky’s non-retaliatory reason for terminating her employment,
namely, that she failed to comply with Sikorsky’s requests for medical
information [during a paid leave that the employer had suggested so it
could determine whether plaintiff was medically fit for duty], was
pretextual. We agree with the district court. Based on our review of the
record before the district court, we find that even assuming arguendo that
Mitchell adequately established a prima facie case of retaliation, she failed
to show that, but for Mitchell’s protected conduct, Sikorsky would not have
terminated her employment. Specifically, nothing in the record shows that
Mitchell would not have been fired solely because of her failure to comply
with Sikorsky’s request for medical information, and irrespective of
whether she had raised complaints of racial discrimination. The only
potential evidence of pretext in the record is the temporal proximity of
Mitchell’s complaint to her termination, but this falls short of establishing
but for causation.
Id. at *5 (citing McCoy, 492 F.3d at 562) (footnote omitted) (emphasis added). Hayes
has failed to provide any evidence that she would not have been fired solely because of
her undisputed medical inability to return to work, and irrespective of whether she had
raised complaints of sexual harassment and retaliation more than ten months earlier.
Plaintiff’s declaration that “I am not aware of any other basis for my termination
that is not a pretext” lacks any evidentiary support. “[A]t the summary judgment stage,
we require evidence–not absolute proof, but not mere allegations either.” Ontiveros v.
13
City of Rosenberg, 564 F.3d 379, 383 (5th Cir. 2009) (quotation omitted). Her mere
subjective belief and speculation that she was terminated based on retaliation are
insufficient to create an inference of defendant’s retaliatory intent. Roberson, 373 F.3d
at 654; Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002); Lawrence v. Univ. of
Tex., 163 F.3d 309, 313 (5th Cir. 1999).
Accordingly, IT IS ORDERED that defendant’s summary judgment motion is
granted in part in that plaintiff’s retaliatory termination claim is DISMISSED WITH
PREJUDICE.
B.
The Motion for Summary Judgment Is Otherwise Denied
Material fact issues remain in dispute concerning plaintiff’s claims of a sexually
hostile work environment under Title VII and Louisiana law3 and of retaliation based on
actions other than termination under Title VII. These issues include, but are not limited
to: whether the incident during the summer of 2010, in which Charles allegedly grabbed
Hayes’s arm and blocked her way while she repeatedly tried to go around him, was based
on her sex; whether the same incident, while arguably not sexually abusive, might
nevertheless be admissible as “proof of [Charles’s] intent, plan, motive, knowledge, and
absence of mistake or accident,” Alaniz v. Zamora-Quezada, 591 F.3d 761, 774 (5th Cir.
3
The elements of a claim of hostile work environment are the same under Louisiana law and Title
VII. Alleman v. La. Dep’t of Econ. Dev., 698 F. Supp. 2d 644, 656 n.7 (M.D. La. 2010) (citing Baker
v. FedEx Ground Package Sys., Inc., 278 F. App’x 322, 327 (5th Cir. 2008)); Hare v. Paleo Data, Inc.,
89 So. 3d 380, 386 (La. App. 4th Cir. 2012) (citing Nash v. Electrospace Sys., Inc., 9 F.3d 401, 405 (5th
Cir. 1993); Brooks v. S. Univ., 877 So.2d 1194, 1220 (La. App. 4th Cir. 2004)).
14
2009) (citing Fed. R. Evid. 404(b)); whether the alleged sexual harassment during the
summer and on October 19, 2010, including a supervisor’s alleged explicit sexually
harassing comments and physical contact, was sufficiently severe or pervasive to alter
the conditions of plaintiff’s employment; whether Charles physically threatened Hayes
when he allegedly told her not to report his alleged sexual harassment that occurred on
October 19, 2010; whether the working environment was objectively hostile or abusive;
whether Hayes unreasonably failed to take advantage of any preventive or corrective
opportunities provided by Audubon to avoid harm when she did not report the first
incident; whether Audubon exercised reasonable care to prevent and correct promptly
Charles’s sexually harassing behavior when there are evidentiary conflicts about whom
defendant interviewed and the extent of its investigation; whether Audubon’s placement
of Hayes in a cashier position for some weeks after her return to work in December 2010,
instead of in the higher paying position of team leader that she held before her paid leave
began in late October 2010, was an adverse employment action; whether that placement
and attendant loss of pay were in retaliation for her complaint of sexual harassment;
whether any Audubon supervisor or manager instructed other employees to avoid contact
with plaintiff and whether those instructions were retaliatory; whether Hayes received
a retaliatory write-up on March 18, 2011; and whether evidence that Charles was a
serious and recidivist sexual harasser who sexually harassed other female employees and
was fired for sexual harassment after plaintiff’s employment was terminated is admissible
15
under Fed. R. Evid. 404(b) to show “a systemic pattern of discrimination” and/or “a
particular modus operandi in making sexual overtures to female subordinates [and] . . .
to demonstrate either plan, motive, or absence of mistake.” Id. at 775.
For the foregoing reasons, plaintiff’s claims alleging hostile work environment
arising from sexual harassment in the workplace by a supervisor must be determined at
trial. Thus, defendant’s motion is denied in part as to all claims asserted by plaintiff,
except the retaliatory termination claim, which has been dismissed in this order.
29th
New Orleans, Louisiana, this ___________ day of July, 2013.
JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
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