Buisson v. Board of Supervisors of the Louisiana Community and Technical College System
Filing
72
ORDER AND REASONS ON MOTION. For all of the foregoing reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED and that plaintiff's claims are DISMISSED WITH PREJUDICE, plaintiff to bear all costs of these proceedings. Judgment will be separately entered. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/12/13. (tbl)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
YOUNG BUISSON
CIVIL ACTION
VERSUS
NO. 12-2008
BOARD OF SUPERVISORS OF THE
LOUISIANA COMMUNITY AND
TECHNICAL COLLEGE SYSTEM
MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.
ORDER AND REASONS ON MOTIONS
In this employment discrimination action, plaintiff, Dr. Young Buisson, a former
chemistry instructor at Delgado Community College, sued her former employer,
defendant Board of Supervisors of the Louisiana Community and Technical College
System (“Delgado”). Plaintiff alleges that defendant subjected her to a hostile work
environment and to discrimination based on her race (Asian) and national origin (South
Korean), and that defendant retaliated against her for having complained about the
alleged hostile work environment and discrimination, all in violation of Title VII.
Although her complaint also asserts a claim of age discrimination under the Age
Discrimination in Employment Act, Dr. Buisson states in her memorandum in opposition
to defendant’s summary judgment motion that she voluntarily dismisses that claim.
Record Doc. No. 46-2 at p. 1. The court treats this statement as a motion for voluntary
dismissal under Fed. R. Civ. P. 41(a)(2).
Delgado moved for summary judgment on all of plaintiff’s claims. Record Doc.
No. 36. Defendant’s motion is supported by excerpts from plaintiff’s deposition;
affidavits from (1) Philias Denette (Japanese American), Chairman of Biology and
Sciences College Wide at Delgado, who was plaintiff’s supervisor before the events at
issue in this action, (2) Raymond Duplessis (African-American), Chair of Delgado’s
Physical Sciences Department (“Duplessis”), and (3) Thomas Gruber (Caucasian), Dean
of Delgado’s Science and Mathematics Division (“Dean Gruber”); excerpts from the
deposition of Dr. Bereket G. Tewolde (a native of Africa), who was plaintiff’s immediate
supervisor during much of the time period at issue; and numerous verified exhibits. Dr.
Buisson alleges that Duplessis and Dean Gruber perpetrated the acts of discrimination
and retaliation.
Plaintiff received leave to file an untimely memorandum in opposition to
defendant’s motion for summary judgment. Record Doc. Nos. 46, 51, 52. She supports
her opposition with her own declaration under penalty of perjury; declarations from two
former instructors in the Physical Sciences Department, Troy P. Sampere (Caucasian),
Syed A. Ahmed (Indian national origin and Middle Eastern race), and two other fact
witnesses, Joel W. Spillman and J. Harry Rees; many of the same documentary exhibits
included in defendant’s submissions; some additional documents; and a few more pages
from the transcript of plaintiff’s own deposition. Dr. Buisson also received leave for late
filing of Plaintiff’s Exhibit 4 and her statement of contested material facts, which had
been inadvertently omitted from her opposition memorandum. Record Doc. Nos. 48, 51.
2
Having considered the complaint, the submissions of the parties, and the
applicable law, and for the following reasons, IT IS ORDERED that plaintiff’s motion
to dismiss voluntarily is GRANTED and that her age discrimination claim is
DISMISSED WITH PREJUDICE.
Fed. R. Civ. P. 41(a)(2).
IT IS FURTHER
ORDERED that defendant’s motion for summary judgment is GRANTED and that
plaintiff’s remaining claims are DISMISSED WITH PREJUDICE.
I.
STANDARD OF REVIEW FOR SUMMARY JUDGMENT MOTIONS
“A party may move for summary judgment, identifying each claim or defense–or
the part of each claim or defense–on which summary judgment is sought. 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.” Fed. R. Civ.
P. 56(a).
Rule 56, as revised effective December 1, 2010, establishes new procedures for
supporting factual positions:
(1) A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
3
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A
party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials,
but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Fed. R. Civ. P. 56(c).
Thus, the moving party bears the initial burden of identifying those materials in
the record that it believes demonstrate the absence of a genuinely disputed material fact,
but it is not required to negate elements of the nonmoving party’s case. Capitol Indem.
Corp. v. United States, 452 F.3d 428, 430 (5th Cir. 2006) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). “[A] party who does not have the trial burden of production
may rely on a showing that a party who does have the trial burden cannot produce
admissible evidence to carry its burden as to [a particular material] fact.” Advisory
Committee Notes, at 261.
A fact is “material” if its resolution in favor of one party might affect the outcome
of the action under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986). No genuine dispute of material fact exists if a rational trier of fact could not find
for the nonmoving party based on the evidence presented. Nat’l Ass’n of Gov’t
Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).
4
To withstand a properly supported motion, the nonmoving party who bears the
burden of proof at trial must cite to particular evidence in the record to support the
essential elements of its claim. Id. (citing Celotex, 477 U.S. at 321-23); accord U.S. ex
rel. Patton v. Shaw Servs., L.L.C., 418 F. App’x 366, 371 (5th Cir. 2011). “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case renders
all other facts immaterial.” Celotex, 477 U.S. at 323; accord U.S. ex rel. Patton, 418 F.
App’x at 371.
“Factual controversies are construed in the light most favorable to the nonmovant,
but only if both parties have introduced evidence showing that an actual controversy
exists.” Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998); accord Murray
v. Earle, 405 F.3d 278, 284 (5th Cir. 2005). “We do not, however, in the absence of any
proof, assume that the nonmoving party could or would prove the necessary facts.”
Badon v. R J R Nabisco Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quotation omitted)
(emphasis in original). “Conclusory allegations unsupported by specific facts . . . will
not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his allegations
. . . to get to a jury without any “significant probative evidence tending to support the
complaint.”’” Nat’l Ass’n of Gov’t Employees, 40 F.3d at 713 (quoting Anderson, 477
U.S. at 249).
“Moreover, the nonmoving party’s burden is not affected by the type of case;
summary judgment is appropriate in any case where critical evidence is so weak or
5
tenuous on an essential fact that it could not support a judgment in favor of the
nonmovant.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotation
omitted) (emphasis in original); accord Duron v. Albertson’s LLC, 560 F.3d 288, 291
(5th Cir. 2009).
II.
BRIEF SUMMARY OF 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 for summary
judgment. Additional facts are discussed in the analysis sections for each claim below.
Dr. Buisson has a Ph.D. in inorganic chemistry. She worked at Delgado as a
temporary chemistry instructor from the fall semester of 2009 until July 8, 2011, when
Dean Gruber advised her that he would not renew her contract for another year.
Duplessis became Chair of the Physical Sciences Department in the summer of
2010. Dean Gruber was his supervisor. Duplessis oversaw the department’s move to a
new building during the early weeks of the Fall 2010 semester.
In October 2010, plaintiff and six other candidates applied for two permanent
chemistry teaching positions. All candidates were interviewed by a hiring committee that
consisted of an ethnically diverse group of seven instructors from Delgado’s science
departments. All candidates were asked the same ten questions. Each candidate gave a
presentation to the committee. After the interviews, each member of the hiring
committee assigned a numeric score to each candidate.
6
The scores from the hiring committee were averaged and the final scores were
reported to Dean Gruber. Dr. Tewolde and Dr. Tamika Duplessis (“Tamika Duplessis”)
were the two highest scoring candidates. Tamika Duplessis is Raymond Duplessis’s wife
and is African-American. Dr. Buisson had the fourth highest score and was qualified for
the position. The committee recommended that Dr. Tewolde and Tamika Duplessis be
selected for the two permanent positions.
After receiving the committee’s scores and recommendations, Dean Gruber
interviewed all of the candidates again. Duplessis sat in during the interviews, but did
not participate in them. Dean Gruber made the final decision to select Dr. Tewolde and
Tamika Duplessis without any input from Duplessis. Dean Gruber relied on the
committee’s recommendations when he made his decision.
As soon as Dr. Tewolde accepted the permanent position, he was given the title
of Lead Chemistry Instructor and became plaintiff’s immediate supervisor. He also
supervised Tamika Duplessis. He reported directly to Dean Gruber, rather than to
Duplessis, the department chair.
III.
HOSTILE WORK ENVIRONMENT CLAIMS
Dr. Buisson claims that numerous incidents during the 2010 to 2011 academic
year created a hostile work environment based on her race and/or national origin. She
alleges that Duplessis and Dean Gruber favored African-American and African
instructors and that Duplessis and Dean Gruber harassed her and other non-African7
American or African instructors based on their race and/or national origin. Specifically,
plaintiff complains of the following:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
In the early part of the Fall 2010 semester when classrooms were being
reconfigured to accommodate the Physical Sciences Department’s move to
a new building, Duplessis and Dr. Tewolde interrupted her classes by
coming in while she was teaching, sometimes with construction workers
and sometimes alone, to look at her and check up on her.
Dr. Buisson did not receive a filing cabinet or bookshelves in her office
after the move to the new building.
She did not receive e-mail communications from Duplessis on two
occasions.
Duplessis solicited complaints about plaintiff from her students.
At the end of June 2011, Dr. Buisson was relocated to another office after
she was in a verbal altercation that had been started by Tamika Duplessis,
one of her office mates.
Duplessis tampered with plaintiff’s computer and accessed her personal
information.
Duplessis and Dean Gruber ignored Dr. Buisson’s suggestions about
departmental policies. They applied double standards by enforcing
laboratory policies more strictly against her than against African-American
and African instructors.
Tamika Duplessis was allowed to conduct final examinations in her classes
three weeks early, and was allowed to bring her children to work, while
plaintiff was not allowed to do these things.
Duplessis took notes from plaintiff’s office door that Dr. Buisson left there
to advise her students of why she was not in her office.
Duplessis printed a list of the students who were taking plaintiff’s classes
and left it on a public printer. It contained Dr. Buisson’s faculty
identification number and student identification information.
On unspecified dates and occasions, Duplessis referred to Dr. Buisson as
a “chink” and “Kim Young,” an apparent reference to the North Korean
dictator.
Defendant argues, and the court finds, that plaintiff has not produced competent
evidence sufficient to establish a genuine issue of disputed fact concerning the third and
8
fourth prongs of a prima facie case of hostile work environment claim based on race or
national origin. The incidents of which she complains were not sufficiently severe or
pervasive, singly or in combination, to alter the conditions of her employment and create
an abusive working environment. In addition, Dr. Buisson offers only speculation,
opinion and conclusory allegations that any of the actions taken by Duplessis and/or
Dean Gruber were based on her race or national origin.
To establish a prima facie case of a hostile work environment under Title VII, Dr.
Buisson must prove that
(1) she belongs to a protected group; (2) she was subjected to
unwelcome harassment; (3) the harassment complained of
was based on [a prohibited ground]; (4) the harassment
complained of affected a term, condition, or privilege of
employment; [and] (5) the employer knew or should have
known of the harassment in question and failed to take
prompt remedial action.
To satisfy the fourth part of that test, the harassment “must be sufficiently
severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.”
Mitchell v. Snow, 326 F. App’x 852, 856-57 (5th Cir. 2009) (quoting Ramsey v.
Henderson, 286 F.3d 264, 268 (5th Cir. 2002)) (citing Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)) (emphasis added); accord Wooten v. Fed. Express Corp., 325 F.
App’x 297, 300 n.10 (5th Cir. 2009); Harvill v. Westward Commc’ns, L.L.C., 433 F.3d
428, 434-35 (5th Cir. 2005).
9
When, as in the instant case, “‘the harassment is allegedly committed by a
supervisor with immediate or successively higher authority, the plaintiff employee needs
to satisfy only the first four of the elements listed above.’” Parker v. La. Dep’t of Special
Educ., 323 F. App’x 321, 325 (5th Cir. 2009) (quoting Celestine v. Petroleos de
Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001)). If she does so, defendant will have
the opportunity to prove its affirmative Ellerth/Faragher defense.
If plaintiff fails to produce evidence that raises a material disputed fact as to any
of the elements of a prima facie case, summary judgment must be granted in defendant’s
favor. Harvill, 433 F.3d at 439.
Delgado concedes that Dr. Buisson belongs to a protected group and, for the
purposes of summary judgment only, that the incidents complained of were unwelcome.
However, defendant argues that plaintiff cannot satisfy the third prong of a prima facie
case because she has no evidence to show that any of the incidents were based on her
race or national origin, and that she cannot satisfy the fourth prong of a prima facie case
because the incidents do not rise to the necessary level of severity or pervasiveness.
As to the fourth prong of a prima facie case, the Fifth Circuit has held that
[a] workplace environment is hostile when it is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment. However,
not all harassment, including simple teasing, offhand comments, and
isolated incidents (unless extremely serious), will affect a term, condition,
or privilege of employment. To be actionable, the working environment
must be objectively hostile or abusive. Whether an environment is hostile
10
or abusive depends on the totality of the circumstances, including factors
such as the frequency of the conduct, its severity, the degree to which the
conduct is physically threatening or humiliating, and the degree to which
the conduct unreasonably interferes with an employee’s work performance.
Alaniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009) (quotations and citations
omitted) (emphasis added).
With the exception of Duplessis’s alleged race- or national origin-based remarks
(which are addressed separately below), Delgado has offered reasonable explanations for
all of the events of which plaintiff complains. None of these scattered events were severe
or pervasive. In addition, plaintiff has offered only speculation, opinions (her own and
those of other witnesses) and conclusory allegations that any of the actions were based
on her race or national origin. These events are as follows.
Duplessis entered plaintiff’s classroom at times in connection with the ongoing
construction during the fall semester. Dr. Buisson admitted in her deposition that he did
this in her classroom and in those of other instructors, and that such intrusions were
necessary. Plaintiff makes vague allegations that, at unspecified times and an unspecified
number of times, Duplessis or Dr. Tewolde opened her classroom door or entered her
classroom to observe her. Assuming that they did so, such actions were within their
supervisory authority. Plaintiff has offered no evidence that these incidents were either
severe, pervasive or race- or national origin-based.
11
Defendant’s evidence establishes that it provided each instructor with identical
office equipment after the move to the new building, but it did not have the funds to give
them all bookshelves and filing cabinets. Plaintiff’s own evidence confirms that other
instructors did not receive such furniture. Although she speculates that this was because
she and the others were not African-American or African, she has offered no competent
evidence that Delgado provided such equipment only to African-American or African
instructors, or that Delgado was motivated by any race- or national origin-based animus.
Dr. Buisson’s evidence shows that she did not receive two reminder e-mails from
Duplessis and one from the Registrar that were sent to some other instructors in her
department. Duplessis explains that he learned that several instructors did not receive
his first e-mail in April 2011, and he resent it to all instructors, including Dr. Buisson,
who received it. Defendant’s Exh. 4, Duplessis affidavit at ¶ 7. He explains that he did
not send his second, June 21, 2011 reminder e-mail about entering mid-term grades to
plaintiff because he only sent it to those instructors who needed to be reminded, based
on their past performance, and she was not one of those. Id. at ¶ 8. Dr. Buisson received
Duplessis’s second e-mail and another one that was sent by the Registrar when another
instructor forwarded them both to her. She then asked Duplessis and the Registrar to
send them to her, which they did. She suffered no adverse consequences from these
isolated, trivial incidents and has proffered no evidence that either Duplessis or the
Registrar had a discriminatory motive for excluding her from these e-mails.
12
Plaintiff’s allegation that Duplessis accessed her computer and tampered with it
is completely unsupported by any competent evidence. She admittedly has no personal
knowledge that Duplessis actually accessed her computer and relies solely on a screen
shot of what appears to be his screen name on a login screen. Defendant’s evidence
shows that Dr. Buisson’s computer files were password-protected. Even if Duplessis
logged in on her computer on one occasion, she has presented no evidence of any
“tampering” with her files or access to her confidential, password-protected information.
This unproven, isolated incident was not severe, nor did it accumulate with anything else
amounting to pervasive conduct.
Duplessis printed a list of Dr. Buisson’s students that was left on the faculty
printer for an unknown length of time before plaintiff found it. There is no evidence that
the printer was in a public area or that the document was left there intentionally or for a
long period. Even if it was, plaintiff’s faculty identification number was not the kind of
personal data identifier that could be considered confidential information, and it could
not have allowed anyone to access her confidential information. Plaintiff testified that
she was concerned that Duplessis was evaluating the student withdrawal rates in her
classes and she speculated that he was looking for a reason to fire her. Defendant’s
competent summary judgment evidence establishes that tracking Dr. Buisson’s class
enrollments and job performance were well within Duplessis’s job responsibilities as
chair of the department and that he did the same for all instructors. This extremely minor
13
incident of conduct within a supervisor’s rightful authority raises no inference of a hostile
work environment.
Plaintiff shared an office with Dr. Tewolde and Tamika Duplessis. Plaintiff was
relocated to another office on June 28, 2011, after Tamika Duplessis confronted Dr.
Buisson a few days earlier and accused her of soliciting information about Tamika
Duplessis from Tamika Duplessis’s students. Tamika Duplessis shouted at plaintiff and
used curse words during the verbal confrontation. Although Dr. Buisson now denies that
she solicited any such information from Tamika Duplessis’s students, Plaintiff’s Exh. 1,
plaintiff’s declaration at ¶ 11, she admitted in her deposition that she had done so on at
least one occasion. Defendant’s Exh. 1, plaintiff’s deposition at pp. 51-60. The student
from whom Dr. Buisson had solicited information about Tamika Duplessis complained
orally to Raymond Duplessis about plaintiff’s actions in early June 2011 and followed
up in a written e-mail on July 20, 2011. Duplessis forwarded the information to Dean
Gruber. Defendant’s Exh. 5, Duplessis affidavit at ¶ 12; Defendant’s Exh. 7, e-mail
thread dated June 13 through July 20, 2011.
To the extent that plaintiff’s declaration contradicts her sworn deposition
testimony without any explanation, it is inadmissible and does not create any genuine
issue of disputed fact. Bouvier v. Northrup Grumman Ship Sys., Inc., 350 F. App’x 917,
921 (5th Cir. 2009); Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 482 (5th
Cir. 2002); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996).
14
After their verbal confrontation, Tamika Duplessis filed a written grievance
against Dr. Buisson. Defendant’s Exh. 8, grievance dated June 23, 2011. The two
instructors attended a grievance meeting in Dean Gruber’s office on June 28, 2011 during
which he heard their respective versions. He told them to work together as colleagues
and told each one to focus on her own work and teaching responsibilities. Defendant’s
Exh. 5, Gruber affidavit at ¶ 9.
Duplessis then recommended, and Dean Gruber approved his recommendation,
that Dr. Buisson be moved out of the office that she shared with Dr. Tewolde and Tamika
Duplessis. Dean Gruber reasoned that, in addition to plaintiff’s difficulties with Tamika
Duplessis, Dr. Buisson’s relationship with Dr. Tewolde had become strained after she
disagreed with his negative evaluation of some aspects of her performance. Dean Gruber
decided that it was appropriate to move Dr. Buisson. Defendant’s Exh. 4, Duplessis
affidavit at ¶ 11; Defendant’s Exh. 5, Gruber affidavit at ¶ 9. The actions of Duplessis
and Dean Gruber to deal with plaintiff’s strained office situation in the face of a written
grievance by her office mate raise no inference of an abusive work environment. Dr.
Buisson has provided no competent evidence that the decision to move her was based on
any discriminatory animus.
Plaintiff has presented no evidence to support her allegation that Duplessis
solicited complaints about her from her students. Rather, defendant’s competent
evidence establishes that, between October 2010 and June 2011, Duplessis and Dean
15
Gruber received at least seven specific written complaints about her from students.
Defendant’s Exh. 4, Duplessis affidavit at ¶ 12; Defendant’s Exh. 5, Gruber affidavit at
¶ 10; Defendant’s Exhs. 7, 9 through 14, copies of student complaints. Her previous
supervisor, Denette, also received “several student complaints about her” when he
supervised her between the fall of 2009 and August 2010. Defendant’s Exh. 3, Denette
affidavit at ¶ 6.
Dr. Buisson raises two issues regarding the alleged ignoring of her policy
suggestions. First, her own evidence shows that she made only a vague reference to a
Delgado policy that required chemistry instructors to wear closed-toe shoes in an e-mail
to Duplessis and Dean Gruber that largely dealt with another, more serious issue
regarding unclean and unsafe lab conditions. Plaintiff’s Exh. 1, plaintiff’s declaration
at ¶ 40. Dean Gruber does not recall her vague reference to footwear and never
responded to it. Defendant’s Exh. 5, Gruber affidavit at ¶ 11. There is no evidence that
plaintiff ever complained to any supervisor about specific incidents of anyone wearing
open-toed shoes. She was never reprimanded concerning her own shoes. Id. This
cannot possibly be considered a severe or pervasive incident of harassment.
Plaintiff’s second issue concerns Delgado’s policy that laboratory doors be kept
open during chemistry experiments. Duplessis sent an e-mail to all instructors on
June 15, 2011 reminding them of the strict policy. In an e-mail to the same parties on
June 20, 2011, Dr. Buisson cited a contrary authority that lab doors should be kept
16
closed. Defendant’s Exh. 19, e-mail thread dated from June 15 to June 21, 2011. Dean
Gruber then asked her to “please act as Mr. Duplessis and Dr. Tewolde have directed,”
and plaintiff agreed that she would do so. Defendant’s Exh. 16, e-mail thread dated from
June 15 to June 20, 2011; Defendant’s Exh. 19.
On June 21, 2011, Duplessis observed that plaintiff’s lab door was only partially
open, so he opened it fully. She again partially closed it. Duplessis then sent an e-mail
to all instructors reiterating the open-door policy. Defendant’s Exh. 18, e-mail thread
dated June 21, 2011. Dean Gruber e-mailed plaintiff the same day, stating that she had
been insubordinate for failing to do as she had been told and as she had promised to do,
and that her insubordination made her subject to immediate dismissal. Defendant’s
Exh. 19. No other adverse action followed. The next day, Dr. Buisson saw that Dr.
Tewolde’s lab door was closed, but she did not know whether he was lecturing, during
which it is undisputed that the doors could be closed, or conducting experiments. She
testified that she reported this incident to Dean Gruber and that he did nothing, although
it is unclear that she had personal knowledge of this alleged fact. Once again, however,
none of these incidents are severe or pervasive and plaintiff has pointed to no evidence
of any race- or national-origin based motives.
Plaintiff alleges that Tamika Duplessis was given more flexible working
conditions than she was, in that Tamika Duplessis gave her final exams three weeks early
and Tamika Duplessis was allowed to bring her children to work. Delgado’s competent
17
summary judgment evidence establishes that it had a policy of allowing instructors to
give final exams early in certain circumstances and that Tamika Duplessis did so in
accordance with the policy. Defendant’s Exh. 4, Duplessis affidavit at ¶ 16. Dr. Buisson
never sought nor was denied leave to give early exams, so this could not possibly be an
incident of harassment directed at her.
Plaintiff admits that she brought her 12-year-old son to work once and left him
unattended for about 30 minutes while she was teaching. Defendant’s Exh. 1, plaintiff’s
deposition at pp. 112-13. To the extent that she denies this in her declaration, the
declaration is inadmissible. Bouvier, 350 F. App’x at 921; Copeland, 278 F.3d at 482;
S.W.S. Erectors, 72 F.3d at 495. After Dr. Buisson complained to Dean Gruber that
other instructors were bringing their children to work, Duplessis admitted to Dean Gruber
that he had brought his sick child to work on one occasion. Dean Gruber orally
reprimanded Duplessis and instructed him to send an e-mail to all instructors, which
Duplessis did on February 15, 2011, reminding them that children should not be brought
to work. Defendant’s Exh. 4, Duplessis affidavit at ¶ 17; Defendant’s Exh. 5, Gruber
affidavit at ¶ 13. Plaintiff was never reprimanded. She has proffered only her subjective
and speculative belief that the e-mail was directed at her and motivated by her race or
national origin.
Dr. Buisson has presented evidence that she once observed Duplessis removing
a “sticky note” that she had left on her office door. This isolated instance cannot possibly
18
constitute a severe or pervasive action and her unsupported mere speculation that he did
the same thing on other occasions does not create a disputed fact issue.
Thus, as to all of these incidents, plaintiff’s
evidence is insufficient to establish a prima facie case [of harassment]. . . .
[T]here is nothing in the record, aside from her personal claims, that she
was harassed at all. Even assuming that she was harassed, she offers only
her own subjective belief that it was on a prohibited ground.
Not even [plaintiff] herself explained why she felt that her race [or
national origin] was the cause of the mistreatment she alleges. A fortiori
there is no evidence that the harassment was severe or was ignored by her
supervisors . . . .
“[C]onclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy the nonmovant’s
burden” in opposing summary judgment.
Mitchell, 326 F. App’x at 857.
Finally, the evidence indicates that Duplessis’s alleged “chink” and “Kim Young”
remarks were made once on unspecified dates. Plaintiff’s Exh. 1, plaintiff’s declaration
at ¶ 67; Plaintiff’s Exh. 3, Ahmed declaration at ¶ 47. Although such comments are
objectionable, “[d]iscourtesy or rudeness, offhand comments and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in terms and
conditions of employment.” Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th
Cir. 1999) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)) (quotation
omitted); accord Forbes v. Catalyst Tech. Inc., 31 F. App’x 836, 2002 WL 243338, at *1
(5th Cir. Jan. 23, 2002). The isolated remarks in the instant case “do not rise to the level
19
of severity or pervasiveness required to show a hostile work environment.” Cavalier v.
Clearlake Rehab. Hosp., Inc., 306 F. App’x 104, 107 (5th Cir. 2009).
In sum, “[t]he conduct alleged by [plaintiff] was largely episodic and does not rise
to the level required for liability as a hostile work environment under Title VII.” Forbes,
2002 WL 243338, at *1. Because Dr. Buisson has failed to provide evidence to raise a
disputed fact issue as to the third and fourth prongs of a prima facie case, Delgado is
entitled to summary judgment as a matter of law on her hostile environment claims.
IV.
DISCRIMINATION CLAIMS
A.
Title VII Standard of Review
Dr. Buisson claims that she experienced four adverse employment actions based
on her race and/or national origin: (1) she was not selected for one of the available
permanent positions in October 2010; (2) she received a “wrong,” or lower than
warranted, performance evaluation from her supervisor, Dr. Tewolde, Defendant’s Exh.
23, “Supervisor’s Evaluation Checklist” dated April 12, 2011; (3) she taught a class in
the Spring 2011 semester for which she was not paid; and (4) her temporary teaching
contract was not renewed in July 2011, after Dean Gruber had already offered her a
permanent position. While unclear, she may also be arguing that the actions described
in the preceding section of this opinion, which allegedly created a hostile work
environment, also were discriminatory, adverse employment actions.
20
An individual asserting a discrimination claim under Title VII must first establish
a prima facie case.
[Plaintiff] can establish a prima facie case for discrimination if he can show
that he (1) is a member of a protected class; (2) was qualified for the
position; (3) was subject to an adverse employment action; and (4) was
replaced by someone outside of the protected class, or, in the case of
disparate treatment, shows that other similarly situated employees were
treated more favorably. If a prima facie case for discrimination can be
established, then the burden shifts to the [defendant] to rebut [plaintiff’s]
case by articulating a legitimate, nondiscriminatory reason for his
termination. If the [defendant] present[s] such a reason, then the burden
shifts back to [plaintiff] to show that the [defendant’s] reasons for
terminating his employment [or taking other adverse employment action]
are not true, but are mere pretexts for discrimination, or that the reasons are
true, but his race [or other protected characteristic] was a motivating factor.
Jackson v. Dallas Cnty., 288 F. App’x 909, 911 (5th Cir. 2008) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 804-05 (1973); Bryan v. McKinsey & Co.,
375 F.3d 358, 360 (5th Cir. 2004)) (quotations omitted).
At the final stage, “plaintiff’s ultimate burden is to persuad[e] the trier of fact that
the defendant intentionally discriminated against the plaintiff.” Turner v. Kans. City S.
Ry., 675 F.3d 887, 900 (5th Cir. 2012) (quotation omitted).
B.
The Majority of the Incidents Were Not Adverse Employment Actions
With regard to the same acts that allegedly created a hostile work environment,
Delgado argues that Dr. Buisson cannot establish the third prong of a prima facie case
of discrimination because none of the acts was an adverse employment action, as defined
21
by the Fifth Circuit. Defendant also contends that the April 2011 performance evaluation
was not an adverse employment action. The court agrees as to all of these actions.
The Fifth Circuit has held repeatedly that the term “adverse employment action”
for purposes of discrimination claims includes “‘only ultimate employment decisions
such as hiring, granting leave, discharging, promoting, or compensating,’” Bouvier v.
Northrup Grumman Ship Sys., Inc., 350 F. App’x 917, 922 (5th Cir. 2009) (quoting
McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007)), or actions that “‘would
tend to result in a change of [plaintiff’s] employment status, benefits or responsibilities.’”
Martin v. Lennox Int’l Inc., 342 F. App’x 15, 18 (5th Cir. 2009) (quoting Shackelford v.
Deloitte & Touche, LLP, 190 F.3d 398, 407 (5th Cir. 1999)); accord Anthony v.
Donahoe, 460 F. App’x 399, 403 (5th Cir. 2012). When the summary judgment evidence
contains no objective showing of a loss in compensation, duties or benefits, the evidence
is insufficient to establish an adverse employment action. Id. (citing Pegram v.
Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004); Serna v. City of San Antonio, 244
F.3d 479, 485 (5th Cir. 2001)). This standard concerning the adverse employment action
prong of a prima facie case of discrimination has not been altered by the decision of the
United States Supreme Court in Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68
(2006), which confined the new standard for an “adverse employment action” announced
in that case to retaliation claims. Mitchell, 326 F. App’x at 854-55 (citing White, 548
U.S. at 67).
22
None of the allegedly harassing actions described by plaintiff resulted in any loss
in compensation, duties or benefits.
As a matter of law, these are not adverse
employment actions and plaintiff cannot establish a prima facie case of discrimination
based on any of them. See King v. Louisiana, 294 F. App’x 77, 85-86 (5th Cir. 2008)
(“[A]llegations of unpleasant work meetings, verbal reprimands, improper work requests,
and unfair treatment do not constitute actionable adverse employment actions”); Ellis v.
Principi, 246 F. App’x 867, 870-71 (5th Cir. 2007) (citing Washington v. Veneman, 109
F. App’x 685, 689 (5th Cir. 2004)) (A supervisor’s decisions to give plaintiff less
favorable work assignments, deny her a performance award and require her to use leave
time to compensate for her tardiness are not adverse employment actions. Decisions “to
enforce the employer’s protocol” regarding such issues “can hardly be considered an
ultimate employment decision.”); Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir.
2000) (criticism, oral threats, abusive remarks and threats of termination not adverse
employment actions); Burgess v. Cleco Corp., No. 11-1704, 2013 WL 673481, at *6
(W.D. La. Feb. 22, 2013), aff’d, No. 13-3023,3 2013 WL 4517281 (5th Cir. Aug. 27,
2013) (“While [plaintiff] may have found [defendant’s] conduct offensive, verbal
reprimands and unfair treatment do not constitute actionable adverse employment actions
for claims of discrimination.”); Montgomery v. Sears Roebuck & Co., 720 F. Supp. 2d
738, 744-45 (W.D. La. 2010) (no adverse employment action when plaintiff was offered
a demotion at the same pay rate, which she refused; remained in her job without any pay
23
reduction; and received written disciplinary notices); Lopez v. Kempthorne, 684 F. Supp.
2d 827, 885 (S.D. Tex. Jan. 14, 2010) (“denial of telecommuting agreement, denial of use
of an entrance door, close monitoring by her supervisor, changes in her drafts of
engagement letters, delayed award, assignment to a small office, denial of a larger and
better located office, and denial of work requests” not adverse employment actions); id.
at 886 (supervisor’s demeaning remarks to plaintiff, which were unrelated to any of
plaintiff’s protected classes, were not adverse employment actions).
On April 12, 2011, Dr. Tewolde completed the Supervisor’s Evaluation Checklist
and indicated that plaintiff “needs work” on many of the listed factors. Defendant’s
Exh. 23. Dr. Buisson alleges that the evaluation was “wrong” because she disagreed with
those findings. She speculates that this evaluation could have been used at a later date
with regard to a possible promotion.
However, Dean Gruber’s affidavit establishes that he made all decisions that
affected her employment, including whether to offer her a permanent faculty position and
whether to enter into another temporary contract with her. Defendant’s Exh. 5, Gruber
affidavit at ¶ 20. He states without contradiction in the record that an evaluation by an
instructor’s supervisor “is simply a tool to increase the performance and effectiveness of
the instructor. Evaluations are not considered in determining whether to offer a
permanent position to instructors or to execute a new contract with instructors.” Id.
(emphasis added). Dean Gruber confirms that statement when he avers that “the
24
evaluations [of the candidates] for the permanent positions available in 2010 were not
considered in the decision making process.” Id. (emphasis added).
Dean Gruber lists all of the factors that he considered when he decided not to
renew plaintiff’s contract. Id. at ¶ 22. The April 2011 Evaluation Checklist is not one
of them. Dr. Buisson has provided no competent summary judgment evidence to
contradict Dean Gruber’s affidavit.
As a matter of law, a lower than expected performance “review itself, standing
alone, plainly does not meet the ultimate-employment-decision test.” Mitchell, 326 F.
App’x at 855. When, as here, plaintiff has produced “no evidence connecting [her]
performance evaluation to her compensation” or another ultimate employment decision,
she “has not shown an adverse employment action.” Id. (citing Pegram 361 F.3d at 283).
Accordingly, defendant is entitled to summary judgment on plaintiff’s claims of
discrimination based on the allegedly harassing actions and on the April 2011
Supervisor’s Evaluation Checklist.
C.
No Evidence of Pretext as to Remaining Discrimination Claims
Delgado next argues that Dr. Buisson cannot establish the fourth prong of a prima
facie case as to her claims based on three admittedly adverse, ultimate employment
actions because she cannot show that defendant treated similarly situated individuals
more favorably under nearly identical circumstances. Delgado contends alternatively
that, even if plaintiff could establish a prima facie case, defendant has produced
25
legitimate, nondiscriminatory reasons for its actions and that Dr. Buisson has no evidence
to create an inference that its reasons were pretextual.
The court will assume without deciding that plaintiff could establish a prima facie
case of discrimination with regard to each of three events: Delgado’s non-selection of
her for a permanent position in October 2010, Delgado’s failure to pay her for teaching
one class and the non-renewal of her contract. The court therefore proceeds to the
subsequent steps of the McDonnell-Douglas burden-shifting analysis.
1.
Nonselection for Permanent Position in October 2010
Delgado has satisfied its burden to produce legitimate, nondiscriminatory reasons
for selecting Tamika Duplessis and Dr. Tewolde for the open positions in October 2010.
Defendant’s evidence shows that all candidates were interviewed by a committee of
seven diverse instructors, all were asked the same ten questions and each candidate gave
a presentation to the committee. Each member of the hiring committee assigned a
numeric score to each candidate. Dr. Tewolde and Tamika Duplessis were the two
highest scoring candidates, while Dr. Buisson had the fourth highest score. The
committee recommended that Dr. Tewolde and Tamika Duplessis be selected. After
receiving the committee’s scores and recommendations, Dean Gruber interviewed all of
the candidates. He relied on the committee’s recommendations and made the final
decision to select Dr. Tewolde and Tamika Duplessis.
26
Thus, in response to defendant’s evidence, Dr. Buisson must produce competent
evidence sufficient to create a material fact issue “that the actual decisionmaker was
motivated by race [or national origin] in taking the adverse employment action.” Turner,
675 F.3d at 902.
To meet her burden to establish pretext, plaintiff argues that she was better
qualified than either Dr. Tewolde or Tamika Duplessis because she had more teaching
experience. In addition, Dr. Buisson notes that one committee member, her former
supervisor, Dr. Denette, ranked her first among the candidates and that the committee
chair, Dr. Sathyamoorthi, ranked her second. Plaintiff also cites inadmissible hearsay
statements by Dr. Sathyamoorthi, who allegedly told her that he had recommended her
for the position to Dean Gruber and was surprised when she was not selected. Plaintiff’s
Exh. 1, plaintiff’s declaration at ¶ 30.
It is undisputed that Dr. Buisson was qualified for the position. However,
[i]n a promotion discrimination claim, a plaintiff may rebut a defendant’s
showing “by providing evidence that he was clearly better qualified than
the employee selected for the position at issue.” The question for the trier
of fact thus becomes “whether the employer’s selection of a particular
applicant over the plaintiff was motivated by discrimination, and evidence
of the plaintiff’s superior qualification is thus probative of pretext.”
Notably, “the bar is set high for this kind of evidence because differences
in qualifications are generally not probative evidence of discrimination
unless those disparities are of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen
the candidate selected over the plaintiff for the job in question.”
27
Warren v. City of Tupelo, 332 F. App’x 176, 181 (5th Cir. 2009) (quoting Celestine, 266
F.3d at 357) (emphasis added) (internal quotations and citations omitted).
Dr. Buisson fails to meet this high burden. Even assuming that she had more
teaching experience than the selected candidates, that fact neither establishes that she was
clearly better qualified nor rebuts Delgado’s evidence of its legitimate, nondiscriminatory
hiring process. The hiring committee interviews, rankings and recommendations took
into account many more factors than just prior teaching experience. Although two of the
committee members ranked plaintiff at the top of their lists, the other five did not, with
the result that three candidates scored higher overall than she did. Dean Gruber’s
statement that he relied on the committee’s recommendations of Tamika Duplessis and
Dr. Tewolde is uncontradicted by any competent evidence.
“Selection of a more qualified applicant is a legitimate and nondiscriminatory
reason for preferring one candidate over another.” Sabzevari v. Reliable Life Ins. Co.,
264 F. App’x 392, 395 (5th Cir. 2008) (citing Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 251-53 (1981)). “In fact, basing a promotion decision on an assessment
of qualifications will almost always qualify as a legitimate, nondiscriminatory reason.”
Scales v. Slater, 181 F.3d 703, 712 (5th Cir. 1999).
Dr. Buisson has presented nothing but speculation, unsupported opinions and
conclusory allegations that Dean Gruber’s selections of Dr. Tewolde and Tamika
Duplessis were discriminatory. “Aside from [her] own subjective beliefs that the
28
[selections] were race-based, [plaintiff] submits no evidence of pretext.” Waters v. City
of Dallas, No. 12-11127, 2013 WL 4406639, at *3 (5th Cir. Aug. 19, 2013).
“[Plaintiff’s] subjective belief that [she] was not selected for the [] position based upon
race or [national origin] is [] insufficient to create an inference of the defendants’
discriminatory intent.” Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004)
(quotation and citation omitted).
It is immaterial whether defendant’s decision to select Tamika Duplessis and Dr.
Tewolde may have been based on incorrect facts, so long as the decision was not
motivated by discriminatory animus. Moss v. BMC Software, Inc., 610 F.3d 917, 926
(5th Cir. 2010); Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001). “Even if evidence
suggests that a decision was wrong, [the court] will not substitute our judgment . . . for
the employer’s business judgment.” Scott v. Univ. of Miss., 148 F.3d 493, 509-10 (5th
Cir. 1998), abrogated on other grounds by Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72
(2000) (citation omitted). “The fact that the employers’ [sic] reasonable belief [in its
reasons for the adverse employment action] eventually proves to be incorrect . . . would
not change the conclusion that the [action] had been non-discriminatory.” Moore v. Eli
Lilly & Co., 990 F.2d 812, 816 (5th Cir. 1993).
Dr. Buisson has failed to rebut Delgado’s legitimate, nondiscriminatory reasons.
Accordingly, defendant is entitled to judgment as a matter of law on this claim.
29
2.
Nonpayment for Teaching One Class
Dr. Buisson contends that she should have been paid an additional sum for
teaching one extra class during the Spring 2011 semester. Delgado has presented
legitimate, nondiscriminatory reasons for its decision not to pay her.
Delgado’s competent evidence establishes that instructors were paid based on the
student enrollment in their classes. To be considered as carrying a “full load” of classes
and to be paid according to the contract, an instructor must teach three lectures and three
labs with at least fifteen students in each class. In the absence of a full load, an
instructor’s pay can be decreased from the full contract rate. Delgado may decide to keep
a course despite low enrollment for various reasons, including ensuring that an instructor
gets paid the entirety of her contract. To this end, Delgado allows classes with at least
ten students to be counted as a full class towards a full load.
As of the date of registration for the Spring 2011 semester, Dr. Buisson had three
classes with less than ten students and three with fifteen or more. Rather than cancel any
of the low enrollment classes and decrease plaintiff’s pay, Duplessis rearranged her
teaching schedule, combined two of her low enrollment classes for purposes of
evaluating her teaching load and used the combined number to justify paying her for a
full load.
If an instructor teaches more than a full load, Delgado may pay her an additional
sum at the rate of $180 per student enrolled. This is known as a “Z Contract.” Duplessis
30
states in his affidavit that, during the registration period, he told Dr. Buisson that if the
enrollment in her total class load for the semester did not decrease, she might receive a
Z Contract for her Chemistry 143-101 Lab, which had 7 students enrolled at the time.
Dr. Buisson testified that Duplessis told her at that time that she would receive a Z
Contract. The court resolves this factual conflict in favor of Dr. Buisson’s version, for
purposes of defendant’s summary judgment motion.
However, enrollment in plaintiff’s classes decreased after registration. After
combining two classes for purposes of calculating her course load, plaintiff’s final course
load was still not a full load because she did not have three lectures and three labs with
at least fifteen students in each. Nonetheless, Delgado paid her for a full load. Under
Delgado’s policy, Dr. Buisson was not entitled to receive a Z Contract because she did
not carry a full load, as defined by the policy.
Plaintiff appears to believe that she was entitled to a Z Contract because she taught
seven classes (four of which had less than ten students). Plaintiff’s Exh. 1, plaintiff’s
declaration at ¶ 45. However, she has failed to produce any evidence that Delgado’s
policy was other than as described above, i.e., that she must first carry a full load, defined
as at least fifteen students in three lectures and three labs, as a prerequisite to any Z
Contract. It is undisputed that her classes did not have that level of enrollment.
Dr. Buisson has failed to rebut defendant’s legitimate, nondiscriminatory reasons
for not awarding her a Z Contract or to produce any evidence that those reasons were a
31
pretext for race or national origin discrimination. Even if Delgado’s calculations were
mistaken, it is entitled to summary judgment in its favor as matter of law on this claim.
Moss, 610 F.3d at 926; Mato, 267 F.3d at 452.
3.
Nonrenewal of Contract in July 2011
In early June 2011, Dean Gruber e-mailed several instructors, including plaintiff,
asking them to talk to him. Dr. Buisson testified that Dean Gruber offered all seven or
eight of these persons a permanent position. She testified that, when she went to talk to
him on June 9, 2011, he said that he was “giving me a permanent position.” Defendant’s
Exh. 1, plaintiff’s deposition at pp. 124-25.
Dean Gruber admits that he was considering rolling over several instructors,
including plaintiff, from temporary to permanent for the Fall 2011 semester and that he
sent an email asking those instructors to come to his office to discuss the possibility. He
denies that he told Dr. Buisson that he would give her a permanent position because no
such position had been approved by the Board and he had not yet made any decision or
recommendation regarding any of the instructors. Defendant’s Exh. 5, Gruber affidavit
at ¶ 21. The court resolves this factual conflict, as it must, in favor of Dr. Buisson’s
testimony that Dean Gruber offered her a permanent position.
It is undisputed that no contract was signed. “Thereafter, after considering Dr.
Buisson’s tenure at Delgado” and the fact that her contract was expiring, Dean Gruber
decided not to offer her a permanent position. Id. On July 6, 2011, he told her that
32
Delgado would not renew her contract for the following school year. Dean Gruber
details in his affidavit “[s]ome of the considerations in making my decision,” all twelve
of which are legitimate, nondiscriminatory reasons that are supported by the evidence.
Id. at ¶ 22.
Plaintiff thus has the “ultimate burden . . . to persuad[e] the trier of fact that the
defendant intentionally discriminated against” her in deciding not to renew her contract.
Turner, 675 F.3d at 900. “The issue at the pretext stage is whether [defendant’s] reason,
even if incorrect, was the real reason for not rehiring [plaintiff].” Barrientos v. City of
Eagle Pass, 444 F. App’x 756, 760 (5th Cir. 2011) (citing Evans v. City of Houston, 246
F.3d 344, 355 (5th Cir. 2001)).
Again, Dr. Buisson has provided nothing but “conclusory allegations, speculation,
and unsubstantiated assertions[, which] are inadequate to satisfy the nonmovant’s burden
in a motion for summary judgment.” Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.
2002) (quotation omitted). In the absence of any evidence of discriminatory animus,
Delgado is entitled to summary judgment as a matter of law on this claim.
IV.
RETALIATION CLAIMS
Dr. Buisson claims that the same employment actions described in the preceding
section were also retaliatory.
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
33
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
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) (citing Taylor v. United Parcel
Serv., Inc., 554 F.3d 510, 523 (5th Cir. 2008); Long v. Eastfield Coll., 88 F.3d 300, 30405 & n.4 (5th Cir. 1996)) (quotation omitted).
Delgado does not dispute that Dr. Buisson engaged in protected activity during her
employment. As to the allegedly harassing actions and the less than stellar performance
review, defendant argues that plaintiff cannot establish the second prong of a prima facie
case because these were not materially adverse actions, as defined by the United States
Supreme Court.
As noted above, a plaintiff alleging unlawful retaliation is not required to show
that she suffered an “ultimate employment decision” of the same kind that must be
established for her discrimination claims. Mitchell, 326 F. App’x at 854-55 (citing
White, 548 U.S. at 67). Rather, “Title VII’s antiretaliation provision prohibits any
employer action that ‘well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Thompson v. N. Am. Stainless, LP, 131 S. Ct.
863, 868 (2011) (quoting White, 548 U.S. 53, 68 (2006)). The Supreme Court
characterizes such actions as “materially adverse.” White, 548 U.S. at 68. “We speak
34
of material adversity because we believe it is important to separate significant from
trivial harms. Title VII, we have said, does not set forth a general civility code for the
American workplace.” Id. (quotation omitted).
As a matter of law, none of the harassing actions or the negative performance
review alleged by plaintiff are materially adverse actions that would dissuade a
reasonable worker from complaining of discrimination. See Magiera v. City of Dallas,
389 F. App’x 433, 437-38 (5th Cir. 2010) (Female police officer asserted that she
suffered retaliation when her supervisors sent her home from work after she requested
a control number to file a complaint of sexual harassment with Internal Affairs, other
officers “clicked” her on the radio and refused to partner with her, and Internal Affairs
investigated complaints lodged against her with heightened scrutiny. None of these
actions was materially adverse, as a matter of law.); Stewart v. Miss. Transp. Comm’n,
586 F.3d 321, 331-32 (5th Cir. 2009) (quoting White, 548 U.S. at 68) (Plaintiff alleged
that, after she returned from paid leave pending investigation of her sexual harassment
complaint, personal items were taken from her desk, the locks on her office had been
changed, she was not allowed to close her office door, and she was chastised by superiors
and ostracized by co-workers. “As a matter of law, these allegations do not rise to the
level of material adversity but instead fall into the category of ‘petty slights, minor
annoyances, and simple lack of good manners’ that the Supreme Court has recognized
are not actionable retaliatory conduct. . . . These actions would not dissuade a reasonable
35
employee from making a charge of discrimination.”); King, 294 F. App’x at 85 (citations
omitted) (allegations of rudeness and unfriendliness by supervisor and co-worker,
“unpleasant work meetings, verbal reprimands, improper work requests and unfair
treatment do not constitute adverse employment actions as . . . retaliation”); Grice v.
FMC Techs., Inc., 216 F. App’x 401, 407 (5th Cir. 2007) (citation omitted) (unjustified
reprimands are “trivial” and not materially adverse); DeHart v. Baker Hughes Oilfield
Operations, Inc., 214 F. App’x 437, 442 (5th Cir. 2007) (written disciplinary warning for
insubordination and being argumentative would not dissuade a reasonable worker from
making or supporting a charge of discrimination when “there were colorable grounds for
the warning and a reasonable employee would have understood a warning under these
circumstances was not necessarily indicative of a retaliatory mind-set”). Dr. Buisson
therefore fails to carry her burden to establish the second prong of a prima facie case as
to these events.
As to the three materially adverse employment actions of failure to select plaintiff
for a permanent position in October 2010, failure to pay her for an extra class and failure
to renew her contract, the court assumes without deciding that plaintiff could establish
a prima facie case of retaliation. In response in the three-phase burden-shifting scheme
applicable to this claim, Delgado has produced the same legitimate, nonretaliatory
reasons for its actions described in the preceding section.
36
The burden therefore shifts to Dr. Buisson to produce evidence to show that
retaliation was the “but-for cause” of defendant’s actions. In Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 133 S. Ct. 2517, 2532-33 (2013), the Supreme Court held that retaliation
claims are subject to a “but-for” causation test. “Title VII retaliation claims must be
proved according to traditional principles of but-for causation . . . . This requires proof
that the unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Nassar, 133 S. Ct. at 2533. In other words,
“pretext is shown only if the adverse employment action would not have occurred ‘but
for’ the protected conduct.” Reine v. Honeywell Int’l Inc., 362 F. App’x 395, 398 (5th
Cir. 2010) (citing Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005)).
Dr. Buisson’s evidence fails to create a material fact dispute as to whether
retaliation was the but-for cause of the materially adverse acts of which she complains.
“It does not matter that [plaintiff] has proved the other required prima facie elements of
Title VII retaliation because, crucially, she has not introduced any evidence of
causation.” Mooney v. Lafayette Cnty. Sch. Dist., No. 12-60753, 2013 WL 4018662, at
*7 (5th Cir. Aug. 8, 2013) (citing Nassar, 133 S. Ct. at 2533; Banks v. E. Baton Rouge
Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)).
Dr. Buisson “has not attempted to establish any causal link between the allegedly
retaliatory actions and [her] participation in a protected activity. [Her] subjective belief
that the incidents were retaliatory, without more, is not sufficient to survive summary
37
judgment.” Grice, 216 F. App’x at 407 (citing Haley v. Alliance Compressor LLC, 391
F.3d 644, 651 (5th Cir. 2004); Travis v. Bd. of Regents, 122 F.3d 259, 266 (5th Cir.
1997)). She has no evidence to support her allegations that any of defendant’s decisions
was motivated by retaliation. See Irons v. Aircraft Serv. Int’l, Inc., 392 F. App’x 305,
313-14 (5th Cir. 2010) (summary judgment properly granted as to plaintiff’s retaliation
claim when he failed to adduce any evidence to support an inference that defendant’s
proffered justification was pretextual).
Accordingly, defendant is entitled to summary judgment in its favor as a matter
of law on this claim.
CONCLUSION
For all of the foregoing reasons, IT IS ORDERED that defendant’s motion for
summary judgment is GRANTED and that plaintiff’s claims are DISMISSED WITH
PREJUDICE, plaintiff to bear all costs of these proceedings. Judgment will be separately
entered.
12th
New Orleans, Louisiana, this ___________ day of November, 2013.
JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
38
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?