Jones v. Jefferson Parish, et al

Filing 53

ORDER AND REASONS ON MOTIONS. IT IS ORDERED that plaintiff's motion for reconsideration is DENIED. Having considered the complaint, as amended, the submissions of the parties, and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED and that plaintiff's claims of color discrimination, harassment, retaliation and intentional infliction of emotional distress are DISMISSED WITH PREJUDICE, plaintiff to bear all costs of these proceedings. Judgment will be entered separately. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/18/13. (tbl)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DURELL JONES

CIVIL ACTION

VERSUS

NO. 12-2191

JEFFERSON PARISH ET AL.

MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTIONS
In this employment discrimination action, plaintiff, Durrell Jones, alleges that his
employer, Jefferson Parish through its Streets Department, discriminated against him and
harassed him in a hostile work environment based on his color, which he describes as
light-skinned African-American, in violation of Title VII, 42 U.S.C. § 2000e et seq.;
retaliated against him for engaging in protected activity, in violation of Title VII and
unspecified state whistle-blowing statutes; and committed intentional infliction of
emotional distress under Louisiana Civil Code article 2315.
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. 12.
Defendant’s motion to dismiss plaintiff’s claims against the Jefferson Parish
Streets Department, which is a non-juridical entity, and to dismiss plaintiff’s race and
disability discrimination claims was previously granted. Those claims were dismissed
with prejudice. Record Doc. No. 15.

Jefferson Parish filed a motion for summary judgment, Record Doc. No. 23,
arguing that Jones failed to exhaust his administrative remedies as to those portions of
his claims that are beyond the scope of the charge of discrimination and retaliation that
he filed with the Equal Employment Opportunity Commission (“EEOC”) on October 13,
2011. Defendant argues that the remainder of plaintiff’s discrimination, harassment and
retaliation claims should be dismissed because Jones cannot establish a prima facie case
as to these claims or, alternatively, cannot rebut defendant’s legitimate,
nondiscriminatory, nonretaliatory reasons for its actions. Jefferson Parish asks the court
to decline to exercise supplemental jurisdiction over Jones’s state law claim of
intentional infliction of emotional distress. Defendant supports its motion with excerpts
from plaintiff’s deposition transcript and the affidavits of his immediate supervisor,
Kenneth Lemieux, and Lemieux’s supervisor, Rodney Lyons, both of whom Jones
identifies as dark-skinned African-Americans.
Jones filed an opposition memorandum, supported by his entire deposition
transcript and numerous exhibits. Record Doc. No. 34. In addition to opposing
defendant’s summary judgment motion, Jones asks the court to reconsider its prior
dismissal of his disability discrimination claim only.1 The court treats this request as a
motion for reconsideration.

1

Plaintiff does not seek reconsideration of the dismissal of his race discrimination claim.

2

The court continued the submission date of the summary judgment motion so that
Jones could depose the assistant director of the Jefferson Parish Streets Department,
Donald Hogan. Jones received leave to file a supplemental opposition memorandum
after the deposition was taken, and defendant received leave to file a reply to that
memorandum. Record Doc. No. 36. Jones filed a timely supplemental memorandum in
opposition to defendant’s motion, supported by the transcript of Hogan’s deposition and
the declarations under penalty of perjury of Streets Department employees Sarah Rutley
and Jason Montagino. Record Doc. No. 37. Jefferson Parish received leave to file an
amended statement of uncontested facts because a page was missing from its original
filing. Record Doc. Nos. 42, 44. Defendant filed a timely memorandum in reply to
plaintiff’s supplemental opposition memorandum. Record Doc. No. 43. Jones received
leave to file a reply to defendant’s amended statement of uncontested facts. Record Doc.
Nos. 49, 50, 51. The supplemental opposition memorandum that he filed as Record Doc.
No. 51 is a duplicate of his previously filed supplemental opposition memorandum.
Record Doc. No. 37.
IT IS ORDERED that plaintiff’s motion for reconsideration is DENIED. Having
considered the complaint, as amended, the submissions of the parties, and the applicable
law, and for the following reasons, IT IS FURTHER ORDERED that defendant’s motion
for summary judgment is GRANTED and that plaintiff’s remaining claims are
DISMISSED WITH PREJUDICE.
3

I.

PLAINTIFF’S MOTION FOR RECONSIDERATION
Without citing any legal authority, Jones argues that the court should reconsider

its dismissal of his disability discrimination claim. The order dismissing that claim and
his race discrimination claim was entered on March 8, 2013. After that order, plaintiff’s
claims of color discrimination, retaliation and intentional infliction of emotional distress
remained for decision in the case. No party moved for entry of judgment under Fed. R.
Civ. P. 54(b), and no judgment was entered as to plaintiff’s disability discrimination
claim.
Jones’s motion to reconsider does not strictly fall under either Fed. R. Civ. P. 59(e)
or 60(b). These rules apply to motions for relief from a judgment that are filed either
within 28 days after entry of judgment, Fed. R. Civ. P. 59(b)), or within a reasonable time
but no more than a year after entry of a final judgment, order or proceeding. Fed. R. Civ.
P. 60(c)). Rule 59(e) does not facially apply to an interlocutory order because the court
has not entered a final order or judgment. Colo. Cas. Ins. Co. v. Brock USA LLC, No.
11-cv-02527-DME-KMT, 2013 WL 4550416, at *1 (D. Colo. Aug. 28, 2013) (citing Fed.
R. Civ. P. 54(b); Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 n.2 (10th Cir. 2008);
Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991)); Payne v. Univ. of S.
Miss., No. 1:12cv41-KS-MTP, 2013 WL 2445031, at *1 (S.D. Miss. June 5, 2013);
Nicholson v. City of Daphne, No. 07-0496-WS-M, 2009 WL 2045152, at *2 (S.D. Ala.
July 7, 2009) (citing Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009); Fye, 516
4

F.3d at 1223 n.2; In re Bayshore Ford Truck Sales, Inc., 471 F.3d 1233, 1260-61 (11th
Cir. 2006); Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571 (7th Cir. 2006);
Nieves-Luciano v. Hernandez-Torres, 397 F.3d 1, 4 (1st Cir. 2005); Am. Canoe Ass’n
v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003); Toole v. Baxter Healthcare
Corp., 235 F.3d 1307, 1315 (11th Cir. 2000); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d
858, 862 (5th Cir. 1970)); Goldman v. Hartford Life & Accident Ins. Co., No. 03-0759,
2006 WL 861016, at *1-2 (E.D. La. Mar. 30, 2006).
My research has not located any Fifth Circuit opinion regarding whether either
Rule 59(e) or 60(b) applies to a requested review of an interlocutory order of partial
dismissal. “However, several district courts within the Fifth Circuit have applied the
legal standards set forth in Rule 59(e) to motions to reconsider interlocutory orders.”
Payne, 2013 WL 2445031, at *1 (citing W.C. Bulley v. Fid. Fin. Servs. of Miss., Inc.,
No. 3:00cv522-BN, 2000 WL 1349184, at *2 (S.D. Miss. Sept. 8, 2000); Goldman, 2006
WL 861016, at *1; Martinez v. Bohls Equip. Co., No. SA-04-CA-0120-XR, 2005 WL
1712214, at *1 (W.D. Tex. July 18, 2005)); see also Koch v. Kentwood Springs, No. 05291, 2006 WL 2802204, at *1 (E.D. La. June 28, 2006) (citing Zimzores v. Veterans
Admin., 778 F.2d 264, 266 (5th Cir. 1985); Bon Air Hotel, 426 F.2d at 862)
(interlocutory order denying summary judgment motion “can be modified or rescinded
by the Court, as justice requires, at any time before final decree”).

5

The court will use the Rule 59(e) standards, which are less stringent than the Rule
60(b) standards, as guidelines to decide plaintiff’s motion. Steward v. City of New
Orleans, No. 11-30947, 2013 WL 3964005, at *2 (5th Cir. Aug. 2, 2013). District courts
have broad discretion in deciding such motions. Johnson v. Diversicare Afton Oaks,
LLC, 597 F.3d 673, 677 (5th Cir. 2010); McGillivray v. Countrywide Home Loans, Inc.,
360 F. App’x 533, 537 (5th Cir. 2010) (citing Hale v. Townley, 45 F.3d 914, 921 (5th
Cir. 1995)).
The Fifth Circuit
“has recognized four grounds upon which a Rule 59(e) motion may be granted:
(1) to correct manifest errors of law or fact upon which a judgment is based,
(2) the availability of new evidence, (3) the need to prevent manifest injustice, or
(4) an intervening change in controlling law.” The Fifth Circuit Court of Appeals
has instructed that the standard for Rule 59(e) “favors denial of motions to alter
or amend a judgment.”
In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2009 WL 2447846, at *2 (E.D.
La. Aug. 6, 2009) (quoting S. Contractors Grp., Inc., v. Dynalectric Co., 2 F.3d 606, 611
(5th Cir. 1993); Johnson v. Cain, No. 05-1943, 2007 WL 1741883, at *1 (E.D. La. June
14, 2007)) (citing Arceneaux v. State Farm Fire & Cas. Co., No. 07-7701, 2008 WL
2067044, at *1 (E.D. La. May 14, 2008)) (emphasis added); accord McGillivray, 360 F.
App’x at 537 (citing In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002)).
Because Jones does not cite any intervening change in controlling law, the court
considers his motion under the other three possible grounds for reconsideration.

6

Because a Rule 59(e) motion “calls into question the correctness of a judgment,”
it is permitted only in narrow situations, “primarily to correct manifest errors of law or
fact or to present newly discovered evidence.” Templet v. HydroChem Inc., 367 F.3d
473, 479 (5th Cir. 2004) (quotation and citations omitted). “The granting of a Rule 59(e)
motion ‘is an extraordinary remedy and should be used sparingly.’” In re Pequeño, 240
F. App’x 634, 636 (5th Cir. 2007) (quoting Templet, 367 F.3d at 479); accord Ewans v.
Wells Fargo Bank, N.A., 389 F. App’x 383, 389-90 (5th Cir. 2010).
“A motion for reconsideration may not be used to rehash rejected arguments or
introduce new arguments.” LeClerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir. 2005)
(citation omitted). The Fifth Circuit has routinely “refused to reverse a district court’s
rejection of a Rule 59(e) motion when the underlying facts were well within the
[plaintiff’s] knowledge prior to the district court’s entry of judgment.” In re Rodriguez,
695 F.3d 360, 371 (5th Cir. 2012) (quotation omitted).
In the instant case, Jones merely rehashes the same arguments he made in his
opposition to defendant’s motion to dismiss. He has not even argued, much less
provided any evidence, that the court’s dismissal was based on manifest errors of law or
fact, that new evidence is now available or that reconsideration is necessary to prevent
manifest injustice. I find that none of these situations is present. Accordingly, plaintiff’s
motion to reconsider is DENIED.

7

In addition, I note that the reports of a licensed clinical social worker, John J.
Muggivan, which Jones submitted with his opposition memorandum, are relevant only
to his claim of disability discrimination, which is no longer in this case. The reports are
not relevant to plaintiff’s claims of harassment, discrimination and retaliation. Only
relevant evidence is admissible. Fed. R. Evid. 401, 402.
To the extent, if any, that Jones may be seeking to introduce the reports to prove
the truth of his own statements to Muggivan about alleged discrimination, harassment or
retaliation, his statements are inadmissible hearsay. Although Fed. R. Evid. 803(4)
provides an exception to the inadmissibility of hearsay statements that are made for the
purpose of medical diagnosis and treatment, the rule
“does not open the door to all statements made to a physician.” “The test,
when examining whether statements contained in medical records relating
to a patient’s condition are admissible hearsay, is whether such statements
are of the type pertinent to a physician in providing treatment.” “Details
of the injury not necessary for treatment but serving only to suggest fault
would not ordinarily qualify as an exception to the hearsay rule under Rule
803(4).”
Hankins v. Ford Motor Co., No. 3:08-CV-639-CWR-FKB, 2011 WL 6888547, at *5
(S.D. Miss. Dec. 29, 2011) (quoting Weissenberger & Duane, Weissenberger’s Federal
Evidence § 803.19, at 601 (7th ed. 2011); Wilson v. Zapata Off-Shore Co., 939 F.2d 260,
272 (5th Cir. 1991); Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 277-78 (5th Cir.
1991)) (emphasis added); accord Fed. R. Evid. 803(4) Advisory Committee Notes;
Brown v. Seaboard Airline R.R., 434 F.2d 1101, 1104 (5th Cir. 1970).
8

Plaintiff’s statements to Muggivan concerning alleged discrimination or retaliation
for activity protected by Title VII by Lyons, Lemieux or anyone else, and Muggivan’s
conclusions regarding such discrimination or retaliation, if any, are inadmissible hearsay.
Accordingly, the court has not considered Muggivan’s reports.
II.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A.

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.
(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.
9

(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).
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

10

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
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
11

omitted) (emphasis in original); accord Duron v. Albertson’s LLC, 560 F.3d 288, 291
(5th Cir. 2009).
B.

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.
Jones was promoted to Road Maintenance Superintendent I on the West Bank of
Jefferson Parish in 2005.

Kenneth Lemieux, whose title is Road Maintenance

Superintendent II, was plaintiff’s immediate supervisor from at least October 2010
through February 18, 2013. Lemieux’s supervisor is Rodney Lyons, who is a Road
Maintenance Superintendent III. Jones identifies these men as dark-skinned AfricanAmericans. Lemieux also supervised three others with the title of Superintendent I:
Andrea Williams, whom plaintiff identifies as a dark-skinned African-American; Donald
Boudreaux, a Caucasian; and Daniel Williams, a Caucasian. Charlie Johnson was a
foreman under Jones’s supervision and is identified by plaintiff as an African-American
with a dark complexion. Lyons reports to the Director of the Streets Department, Randy
Nicholson, who is Caucasian. Donald Hogan, the Assistant Director, is Caucasian.
In October 2010, Lyons instituted a new policy requiring superintendents to
submit to him more supporting documentation for all after-hours call-out work.
On January 7, 2011, Jones met with Lyons, Hogan and Nicholson to investigate
a verbal altercation that occurred between plaintiff and a subordinate employee, Lionel
12

Florence, on November 18, 2010. Florence filed a written grievance against Jones, but
the date of the grievance does not appear in the record.
Jones wrote a “coaching sheet” on his subordinate, Johnson, on February 18, 2011.
Jones testified that Johnson later told plaintiff that Johnson would be waiting for Jones
at his car. After Jones informed Lyons of the incident, Lyons called Johnson into his
office to speak with him. Plaintiff testified that, when he left work that afternoon,
Johnson followed him in his vehicle to an offsite parking lot where Johnson threatened
to kill plaintiff. Jones called the police and filed a police report.
Jones reported the incident at work the following morning, and a meeting was held
about it. At the meeting, Johnson denied that the incident happened. Nicholson stated
that nothing could be done because the incident did not occur on work premises. Jones
asked Lyons to sit in on future coaching meetings between plaintiff and Johnson, but
Lyons declined.
On April 12, 2011, plaintiff filed Grievance No. 2011-20, alleging that Lyons had
not properly followed defendant’s “stand-by” procedure and had deprived Jones of standby pay. The stand-by policy states: “If an employee is not at work for the whole day on
Thursday, Friday, or Monday before and after scheduled stand-by time at the Pump
Station, the employee will NOT get paid for stand-by time. NO EXCEPTIONS.” Jones
stated in his grievance that he was one hour late to work on Friday, April 1, 2011 and he
left work 45 minutes early that same day to care for his mother. Lyons denied him stand13

by pay for the week. Jones alleged that other employees had received stand-by pay when
they missed work under similar circumstances and that it was unfair to apply the policy
to him when it had not been applied strictly to the other employees. Record Doc. No. 3410, at pp. 1-9.

Nothing in the record reflects that Jones complained of color

discrimination as the reason for Lyons’s decision.
Nicole Thompson, a human resources department representative, investigated the
grievance. In a report dated June 23, 2011, Thompson found that Lyons did not treat
Jones unfairly or differently from other employees when Lyons removed Jones from the
stand-by schedule. She found that “[t]here was a misunderstanding in interpretation of
how the policy was going to be followed,” that the department’s stand-by policy had
been applied differently before Nicholson’s and Hogan’s tenure, and that Lyons
continued to apply the policy as he had done in the past. She found that the policy was
being applied inconsistently. She noted that there were instances when Jones and other
employees had not been removed from the schedule and had received stand-by pay
despite being in violation of the policy. She recommended that Nicholson revise the
existing policy to eliminate “a lot of misunderstandings and conflicts” that had been
created in the West Bank Streets Department. Record Doc. No. 34-10 at pp. 1-9.
On July 15, 2011, Jones met with Lyons, Hogan, Nicholson and human resources
representative John Dumas to investigate an incident in which Lemieux and Lyons had
observed Jones engaging in aggressive and unprofessional behavior towards his
14

subordinate, Lionel Savage, on June 2, 2011. According to the incident documentation,
Lemieux and Lyons saw Jones using profanity and warning Savage not to question
plaintiff. The record does not indicate that Jones complained about discrimination based
on his color during this investigation.
On July 18, 2011, Thompson issued an amended recommendation regarding
plaintiff’s Grievance No. 2011-20. She reviewed evidence that Jones provided regarding
his new contention that he had performed his stand-by obligation on the weekend of
September 25, 2010, and was denied four hours of stand-by pay because he used sick
leave on Monday, September 27, 2010, to undergo an emergency medical procedure.
Thompson found that “Jones may have been treated differently by Mr. Lyons on this
occasion.” She recommended that Jones receive four hours of stand-by pay for that
weekend. Record Doc. No. 34-10 at pp. 8-9. The amended recommendation does not
mention any allegation of color discrimination. Jones received the additional pay.
Plaintiff filed an intake questionnaire with the EEOC on August 23, 2011, alleging
color discrimination. However, he did not file a formal charge on that date.
On August 26, 2011 and September 6, 2011, Jones attended two more predisciplinary investigative meetings with Hogan, Nicholson, Dumas, Lemieux and Lyons
regarding the June 2, 2011 incident and grievance by Savage.
Plaintiff filed Grievance No. 2011-45, alleging that Lyons “unfairly” failed to
assign two after-hours call-out jobs to Jones on September 6 and 7, 2011, as required
15

under the stand-by policy, and that Lyons assigned the jobs to Johnson, who was not a
superintendent. Although the grievance is dated September 15, 2011, Lyons did not
receive it until October 10, 2011. Record Doc. No. 34-10 at pp. 14-15. Jones stated in
the grievance: “I feel like I am being retaliated against by Rodney Lyons. He is abusing
his authority and use of discretion. This is constant disparate treatment from upper
management. I also feel like I am being harassed.” Id. at p. 15. The record does not
indicate that Jones complained that Lyons discriminated against him based on his color.
Lyons submitted an employee grievance form on September 21, 2011, concerning
plaintiff’s insubordination.

Lyons stated that Jones had refused to make minor

adjustments on work orders and had threatened him when Lyons asked Jones to make
necessary and routine corrections to work order forms.

No allegations of color

discrimination are reflected in the documentation of this incident.
Lyons responded in writing to plaintiff’s Grievance No. 2011-45 on October 10,
2011, stating that he had met with Jones and Lemieux on September 14, 2011 to discuss
plaintiff’s concerns about the call-out issue. Lyons said that Jones failed to submit a
written grievance within three days, as required by departmental policy. Nonetheless,
Lyons stated that he believed the grievance “is only a retaliation attempt due [to
plaintiff’s] subsequent suspension and events associated with his continued process of
creating discord in the work place including Sabotage and Disrupting the work of
others.” Record Doc. No. 34-10 at p. 16.
16

On October 13, 2011, Jones filed a formal EEOC complaint, charging defendant
with employment discrimination based on color, harassment and retaliation. He filed an
identical complaint on October 18, 2011. The formal charge was sent to defendant.
Lyons and Lemieux became aware that the charge had been filed while they were
preparing for plaintiff’s appeal of disciplinary actions before the Jefferson Parish
Personnel Board. Neither man had ever seen the charge and neither one knows what
facts Jones alleged in support of the charge. Both men aver that their knowledge of
plaintiff’s allegations of discrimination and retaliation never influenced their professional
judgment or any employment decision they made regarding Jones. Lemieux affidavit,
Record Doc. No. 23-4 at ¶¶ 9-10; Lyons affidavit, Record Doc. No. 23-5 at ¶¶ 12-13.
On December 2, 2011, Lyons prepared an employee investigation report
concerning an incident between plaintiff and his subordinate, Johnson. The previous day,
Jones asked Johnson to write a statement regarding a piece of missing equipment.
Johnson refused to do so and argued with Jones about it. Jones wrote a coaching form
for insubordination based on Johnson’s refusal to write the statement. Johnson became
upset and refused to sign the form. Jones told Lyons that Johnson used profane language
and entered his office in a “threatening manner.” Johnson denied both allegations.
Later that day, Lyons held a meeting with the two men to discuss the incident.
Lyons informed Johnson that it was his duty to prepare the statement that Jones had
requested. Lyons also cautioned Johnson that he should not use profane language in the
17

work place. Jones admitted that this was an appropriate response by Lyons. Plaintiff’s
deposition, Record Doc. No. 34-2 at p. 56 (pp. 51-52 of transcript).
On December 12, 2011, Greg Alexander of the human resources department began
an investigation of plaintiff’s Grievance No. 2011-45. Record Doc. No. 34-10 at pp. 1720. Lyons explained to Alexander that he assigned the September 6 and 7, 2011 callout
jobs to crew members who were still at work, rather than calling Jones, who was on
stand-by duty, back to work when he had already left for the day. Plaintiff denied to
Alexander that he was already gone on September 7, 2011, and stated his belief that
“Lyons assigned the job to Mr. Johnson because of personal favoritism.” Id. at p. 19.
In a report dated January 18, 2012, Alexander found that the Streets Department’s
call-out policy was unclear. He recommended that the department revise and clarify its
policy regarding whether it could use employees who were readily available and avoid
an after-hours call-out of stand-by personnel, if a call-out would be more costly to the
department. Alexander recommended that the superintendent on stand-by be notified of
any after-hours work as a courtesy and noted that a “simple communication” from Lyons
to Jones in this instance would have eliminated confusion and “helped assure Jones that
he was not being slighted but that Lyons had made a decision to use an available crew
in lieu of a ‘call-out.’ Instead, Mr. Jones found out after the fact, leading him to suspect
unfair favoritism.” Id. at p. 20.

18

On January 26, 2012, the Jefferson Parish Personnel Board held an administrative
hearing concerning plaintiff’s appeal of the grievance that Lyons filed regarding Jones’s
alleged insubordination on September 21, 2011. On February 8, 2012, hearing officer
Theodore W. Nass entered a judgment pursuant to an agreement of the parties. Nass
continued the hearing without date and ordered Jones to complete three counseling
sessions with a qualified healthcare provider. Nass ordered that “the suspension at issue
herein will be reduced from five (5) days to two (2) days” if Jones completed the
counseling sessions and was not subject to any further disciplinary action by Jefferson
Parish. Record Doc. No. 34-4 at p. 2.
On February 15, 2012, Lemieux prepared plaintiff’s employee performance
evaluation. His overall performance rating was “below expectations.” Jones disagreed
with the evaluation and thought it was unfair.
On March 4, 2012, Lyons completed an employee investigation report regarding
what he perceived as plaintiff’s attempt to record a staff meeting for personal reasons
without permission.
On April 2, 2012, Jones attended a pre-disciplinary meeting with Lemieux, Lyons,
Dumas and Nicholson concerning an act of insubordination by plaintiff on February 10,
2012, when plaintiff allegedly refused to accept Lyons’s instructions regarding the
parade duty schedule during the Mardi Gras season.

19

On May 7, 2012, Lyons met with Jones, Lemieux, Nicholson and Dumas to review
plaintiff’s performance evaluation.

Following a final review by Nicholson, the

performance evaluation was completed on May 17, 2012. Jones suffered no loss of rank,
duties or pay at that time as a result of the evaluation.
The EEOC issued a right-to-sue letter to Jones on June 14, 2012. Record Doc.
No. 34-8.
At a June 20, 2012 staff meeting, Lyons instructed all superintendents to read and
sign a document stating that they understood a new policy. The policy required
supervisors to turn in all investigative reports and other documents to Lyons for review
and provided that those documents would eventually be given to Nicholson. Jones
protested that the policy was “unfair” and accused Lyons and Lemieux of retaliation and
intimidation of employees. Two days later, Lyons prepared an employee investigation
report regarding this incident.
Plaintiff testified that, sometime after this meeting, he had a dispute over a job
assignment with two of his subordinates, Johnson and Mike Perrin. Jones stated that
Lyons removed Perrin and Johnson from his job site without his knowledge and
conducted a private meeting with them and Nicholson.
Sometime after that meeting, Jones received a copy of an employee investigation
report in which Lyons stated that Jones subjected his subordinates to “suggestions of
conspiracy and mistrust” and manipulated his employees. The report also contained a
20

statement by Nicholson, indicating his doubt as to plaintiff’s claims of unfairness,
retaliation and intimidation and asking Jones to provide evidence of his claims. Jones
alleges that Lyons’s actions of conducting the meeting with Nicholson without plaintiff’s
knowledge and of writing an unfavorable investigation report were retaliation for Jones
having questioned the new policy of turning in all documents to Lyons first.
On October 22, 2012, Lemieux prepared an employee performance evaluation that
gave Jones an overall rating of “below expectations.” Jones disagreed with the
evaluation.

Following review by Nicholson, the evaluation was completed on

January 10, 2013.
On January 29, 2013, Nicholson sent a letter to Jones, notifying him that, effective
February 9, 2013, (1) Jones was transferred from the West Bank division to the East
Bank division of the Streets Department, (2) he was demoted from Superintendent I to
Road Maintenance Foreman and (3) his salary would not be affected by the changes.
Nicholson stated that the decision to demote Jones was made under the Streets
Department’s personnel policy, as a result of plaintiff’s “below expectations” ratings on
two consecutive evaluations. Jones unsuccessfully appealed the decision.
On August 20, 2013, Jones filed a second EEOC charge against defendant,
alleging discrimination based on race, color, disability and retaliation as a result of his
transfer and demotion on February 9, 2013.

21

C.

Plaintiff’s Claims of Retaliation and Discrimination Based on Events That
Occurred More than 300 Days Before October 13, 2011 and After June 14,
2012 Are Not Properly Before This Court

An employee must exhaust his administrative remedies by filing a timely charge
with the EEOC before pursuing a Title VII claim of discrimination or retaliation in
federal court. McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008). In a
“deferral state” such as Louisiana, the charge must be filed within 300 days of the
allegedly discriminatory conduct. Windhauser v. Bd. of Supervisors, 360 F. App’x 562,
566 (5th Cir. 2010) (citing Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998)).
“Failure to exhaust is not a procedural ‘gotcha’ issue. It is a mainstay of proper
enforcement of Title VII remedies.” McClain, 519 F.3d at 272. “Courts should not
condone lawsuits that exceed the scope of EEOC exhaustion, because doing so would
thwart the administrative process and peremptorily substitute litigation for conciliation.”
Id. at 273.
The exhaustion requirements impose limitations on the earliest and latest events
on which plaintiff’s claims can be based in this court. Jones filed an intake questionnaire
with the EEOC on August 23, 2011. Unlike a formal charge, an intake questionnaire is
neither signed under oath nor transmitted to the employer, and has no legal effect. Harris
v. Honda, 213 F. App’x 258, 261-62 (5th Cir. 2006) (interpreting Texas Commission on
Human Rights Act, which “is substantively identical to its federal equivalent, Title VII”).

22

Thus, Jones began to exhaust his administrative remedies on October 13, 2011,
when he filed his formal charge. His claims based on events that occurred more than 300
days before October 13, 2011, i.e., before December 17, 2010, are time-barred by his
failure to file a timely charge with the EEOC regarding those events. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Windhauser, 360 F. App’x at 566;
Martin v. Lennox Int’l Inc., 342 F. App’x 15, 18 (5th Cir. 2009); Hartz v. Adm’rs of
Tulane Educ. Fund, 275 F. App’x 281, 287 (5th Cir. 2008). Jones therefore has no claim
in the instant action arising from the new policy that Lyons instituted in October 2010
requiring superintendents to submit documentation to him or from the verbal altercation
that occurred between plaintiff and Florence on November 18, 2010.
In addition, “[t]he scope of a Title VII complaint is limited to the scope of the
EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination. The scope of the inquiry is not, however, limited to the exact charge
brought to the EEOC. EEOC charges are to be given a liberal construction, especially
those authored by unlawyered complainants.” McDonald v. S. Diversified Indus., Inc.,
No. 1:02CV186-D-D, 2003 WL 22244321, at *3 (N.D. Miss. Aug. 5, 2003) (citing
Thomas v. Tex. Dep’t of Crim. Justice, 220 F.3d 389, 395 (5th Cir. 2000); Young v. City
of Houston, 906 F.2d 177, 179 (5th Cir. 1990); Fellows v. Universal Restaurants, Inc.,
701 F.2d 447, 451 (5th Cir. 1983)).

23

Jefferson Parish argues that no incidents after Jones filed his EEOC charge on
October 13, 2011 could reasonably be expected to grow out of the EEOC investigation.
Jones responds that all the incidents of which he complains, including his second “below
expectations” performance evaluation on October 22, 2012 and his demotion and transfer
on February 9, 2013, are reasonably within the scope of the EEOC investigation of his
October 2011 charge. The court finds that all alleged incidents of discrimination,
harassment and retaliation that occurred before the EEOC issued its right-to-sue letter on
June 14, 2012 could reasonably be expected to grow out of plaintiff’s charge, which
complained of all three of those types of unlawful conduct.
The court finds that none of defendant’s acts after the EEOC issued the right-tosue letter could be within the scope of the investigation, which terminated as of that date.
For purposes of the instant action, Jones failed to exhaust his administrative remedies as
to his claims of discrimination and retaliation arising from the June 20, 2012 staff
meeting, plaintiff’s subsequent dispute over a job assignment with Johnson and Perrin,
plaintiff’s second negative performance review in October 2012, and his demotion and
transfer in February 2013. Claims based on these events are not before the court in this
action. (Some of these claims are the subject of another EEOC charge that Jones filed
on August 20, 2013.)
Because Jones failed to exhaust his administrative remedies as to claims based on
incidents that occurred before December 17, 2010 and after June 14, 2012, defendant is
24

entitled to summary judgment as a matter of law on all of plaintiff’s claims of
discrimination and retaliation arising out of those events.
D.

Retaliation and Whistle-Blowing

Jones alleges that his supervisors retaliated against him for having complained of
harassment and discrimination based on his color and for alleged “whistle-blowing.”
However, he has never described with any clarity in any submission to this court what
he means by whistle-blowing. He appears to contend that defendant retaliated against
him for complaining on any basis about policies and events with which he disagreed.
Similarly, Jones has never identified any state law that protects his supposed
whistle-blowing. He has presented no legal argument to support a claim of retaliation
for whistle-blowing in any of his memoranda in opposition to defendant’s motion, which
seeks summary judgment on all of his claims. His failure to brief that argument waives
the argument in this court. Ross v. Baylor College of Med., No. H-08-3080, 2010 WL
2710397, at *8 n.54 (S.D. Tex. July 7, 2010) (citing Vela v. City of Houston, 276 F.3d
659, 678 (5th Cir. 2001); Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1164 (5th Cir.
1983)); Smith v. Tex. Dep’t of Family & Prot. Servs., No. SA-08-CA-940-XR, 2009 WL
2998202, at *3 n.2 (W.D. Tex. Sept. 15, 2009); Holloway v. Town of Simmesport, No.
CV08-0464-A, 2009 WL 1044554, at *7 (W.D. La. Apr. 17, 2009). Accordingly,
defendant is entitled to summary judgment in its favor as a matter of law on plaintiff’s
state law whistle-blowing claim.
25

As to plaintiff’s retaliation claims under Title VII, Jefferson Parish argues that he
cannot establish a prima facie case as to any incidents that occurred before he filed his
EEOC charge on October 13, 2011, because he has no evidence that he engaged in any
activity protected by Title VII before that date. Defendant argues that Jones cannot
establish a prima facie case as to any incidents after that date because he has no evidence
of a causal link between his protected activity of filing an EEOC charge and any adverse
employment action. Alternatively, Jefferson Parish contends that it has produced
legitimate, non-retaliatory reasons for its actions and that Jones cannot produce any
evidence that retaliation was actually the “but-for cause” of its actions.
A plaintiff establishes a prima facie case of retaliation by showing
(i) 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
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) (citations and quotation omitted).
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 v. Westward Commc’ns, L.L.C., 433 F.3d 428, 439 (5th Cir. 2005).
As to the first prong of a prima facie case,

26

[a]n employee has engaged in protected activity if he or she has
(1) opposed any practice made an unlawful employment practice by the
statute, or (2) made a charge, testified, assisted, or participated in any
manner in a Title VII investigation, proceeding, or hearing. . . . An
employee’s informal complaint to an employer may constitute participation
in a protected activity, provided that the complaint is in opposition to
conduct that is unlawful and the employee holds a good faith, reasonable
belief of the conduct’s unlawfulness. Complaints to employers that do not
complain of conduct protected by Title VII do not constitute protected
activities under the statute.
Williams v. Racetrac Petroleum, Inc., No. 09-141-SCR, 2010 WL 2035728, at *2-3
(M.D. La. May 20, 2010) (citing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,
58 (2006); Grimes v. Tex. Dep’t of Mental Health, 102 F.3d 137, 140 (5th Cir. 1996);
Cavazos v. Springer, No. B-06-058, 2008 WL 2967066, at *7 (S.D. Tex. Aug. 1, 2008))
(quotation omitted) (emphasis added).
The court finds that Jones never complained of harassment or discrimination based
on his color before October 13, 2011. His grievances alleged unfair treatment compared
to other employees, but there is no record evidence, including his own testimony, that he
ever claimed that the unfair treatment was based on his color. As a matter of law,
complaints about an employer’s conduct that do not complain of unlawful discrimination
are not protected activity. Therefore, Jones cannot establish the first prong of a prima
facie case of retaliation as to any incidents that occurred before October 13, 2011.
Jones also fails to establish the second prong of a prima facie case as to allegedly
retaliatory actions that occurred after he filed his EEOC complaint and before the EEOC

27

issued a right-to-sue letter on June 14, 2012, including Lyons’s employee investigation
report concerning an incident between Jones and Johnson in December 2011; plaintiff’s
first “below expectations” performance review on February 15, 2012; Lyons’s employee
investigation report on March 4, 2012, regarding what he perceived as plaintiff’s attempt
to record a staff meeting for personal reasons without permission; and the disciplinary
write-up and meeting concerning an act of insubordination by Jones on February 10,
2012, when he allegedly refused to accept Lyons’s instructions regarding the parade duty
schedule. None of these were materially adverse employment actions, as defined by the
United States Supreme Court.
A plaintiff who alleges unlawful retaliation is not required to show that he suffered
an “ultimate employment decision”of the same kind that must be established for his
discrimination claims. Mitchell v. Snow, 326 F. App’x 852, 854-55 (5th Cir. 2009)
(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. at 68). The Supreme Court characterizes such
actions as “materially adverse.” White, 548 U.S. at 68. “We speak 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.

28

(quotation omitted). Material adversity is determined objectively, based on the reactions
of a reasonable employee. Id. at 69-70.
As a matter of law, none of the allegedly retaliatory actions that occurred before
June 14, 2012 are materially adverse actions that might dissuade a reasonable worker
from complaining of discrimination. Jones filed a formal charge with the EEOC on
October 13, 2011, so he was not actually dissuaded from complaining about
discrimination. He suffered no loss of pay, rank or duties after the first negative
performance review or because of any other incident during the relevant time period.
“The allegedly retaliatory incidents of which [Jones] complains are either
unsupported by the record or so ‘trivial’ that they do not appear to be the sort of actions
that would dissuade a reasonable employee from reporting discrimination. . . .
‘[N]ormally petty slights, minor annoyances, and simple lack of good manners will not’
‘deter victims of discrimination from complaining to the EEOC, the courts, and their
employers.’” Grice v. FMC Techs., Inc., 216 F. App’x 401, 407 (5th Cir. 2007) (quoting
White, 548 U.S. at 68); accord Robinson v. Our Lady of the Lake Reg’l Med. Ctr., Inc.,
No. 12-31282, 2013 WL 3437774, at *3 (5th Cir. July 9, 2013); see also 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
29

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 employee from making a charge of discrimination.”); King v. Louisiana,
294 F. App’x 77, 85 (5th Cir. 2008) (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”); Earle v. Aramark Corp., 247 F. App’x 519, 524
(5th Cir. 2007) (“disciplinary write-ups” and “micro-managing” are not “materially
adverse employment actions”); Grice, 216 F. App’x at 407 (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
30

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”). Jones therefore
fails to carry his burden to establish the second prong of a prima facie case of retaliation.
Further, even if he engaged in protected activity before he filed his EEOC charge
or he experienced some materially adverse employment actions, Jones has produced no
evidence of a causal link between his protected activity and the allegedly retaliatory
actions to satisfy the third prong of a prima facie case. His causation evidence consists
solely of speculation, opinions and conclusory allegations, unsupported by any factual
evidence, that defendant’s actions were retaliatory. Jones “has not attempted to establish
any causal link between the allegedly retaliatory actions and his participation in a
protected activity. His subjective belief that the incidents were retaliatory, without more,
is not sufficient to survive summary 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)).
Because Jones has failed to meet his burden to produce evidence, as opposed to
speculation and conclusory allegations, sufficient to establish that material facts are in
dispute as to the first, second and third prongs of a prima facie case, defendant is entitled
to summary judgment in its favor as a matter of law on his retaliation claims.

31

E.

Hostile Work Environment

Although the principals involved in this case all identify themselves as AfricanAmerican, Jones alleges that his darker-skinned supervisors, Lemieux and Lyons,
subjected him to a hostile work environment based on his lighter-skinned color. He also
alleges that Lemieux and Lyons allowed plaintiff’s subordinates to “disrespect” him and
did not support plaintiff in the face of such disrespect because of his skin color. He
claims that he complained about the harassment, but that his superiors failed to take any
remedial action.
To establish a prima facie case of a hostile work environment under Title VII,
Jones must provide competent summary judgment evidence that
(1) [he] belongs to a protected group; (2) [he] 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, 326 F. App’x at 856-57 (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th
Cir. 2002)) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
When “‘the harassment is allegedly committed by a supervisor with immediate or
successively higher authority, the plaintiff employee needs to satisfy only the first four

32

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 plaintiff 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.
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
fourth prongs of a prima facie case of harassment based on color. The incidents of which
Jones complains during the relevant time period from December 17, 2010 to June 14,
2012, were not sufficiently severe or pervasive, singly or in combination, to alter the
conditions of his employment and create an abusive working environment. In addition,
Jones offers only speculation, factually unsupported opinions and conclusory allegations
that any action taken by Lemieux, Lyons, Nicholson or any subordinate employee was
based on plaintiff’s color.
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,
33

or privilege of employment. To be actionable, the working environment
must be objectively hostile or abusive. Whether an environment is hostile
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).
In the instant case, Jefferson Parish has offered reasonable explanations,
unrebutted by competent contrary evidence, for all of the events that plaintiff complains
were harassing. When Jones filed two formal grievances, they were addressed. In both
instances, his lost stand-by pay was restored after a human resources investigation
revealed that the policy in question was unclear or applied inconsistently, though not
based on skin color. Lyons met with Johnson each time that Jones complained about
Johnson’s actions on February 18, 2011 and December 2, 2011. When Jones complained
that Johnson followed him and threatened him outside the workplace on February 18,
2011, Johnson denied that the incident took place. Nicholson stated that nothing could
be done because the alleged incident did not occur on the work premises. Given that he
was faced with a credibility contest and no independent witnesses to corroborate either
man’s story, Nicholson’s response does not appear unreasonable. On the second
occasion, when Jones complained of Johnson’s insubordination in the workplace, Lyons
directed Johnson to follow plaintiff’s instructions and not to use profanity. Jones

34

testified that Lyons’s response was appropriate. None of these events, singly or in
combination, amounted to harassing conduct so severe or pervasive as to alter the
conditions of plaintiff’s employment, and they do not rise to the level of an actionable
hostile work environment.
During the same time period, plaintiff’s supervisors documented incidents of
Jones’s own improper behavior. On June 2, 2011, Lemieux and Lyons observed Jones
engaging in aggressive and unprofessional behavior towards his subordinate, Savage.
Lyons filed an employee grievance form on September 21, 2011, concerning plaintiff’s
refusal to make requested adjustments on work orders and his verbal threats towards
Lyons. On February 10, 2012, Lyons wrote Jones up for refusing to accept Lyons’s
instructions regarding the parade duty schedule. On February 15, 2012, plaintiff’s
employee performance evaluation reflected an overall rating of “below expectations.”
On March 4, 2012, Lyons completed an employee investigation report regarding
plaintiff’s attempt to record a staff meeting for personal reasons without permission.
Jones alleges vaguely that these actions were “unfair.”
However, Jones has offered only speculation, factually unsupported opinions (his
own and those of other witnesses) and conclusory allegations that any of these actions
were taken because of his color. It is undisputed that no witness ever observed Lemieux,
Lyons or Nicholson make any negative comments about Jones based on his color.

35

Jones offers the sworn statement of Michael Perrin, who was an acting foreman
under plaintiff. Sworn statement of Perrin, Record Doc. No. 34-3 at p. 17 (p. 9 of
transcript). Perrin’s testimony does not create any material fact issues in dispute. First
of all, he provides no date for any of the incidents he describes. Second, Perrin testified
that Daniel Williams, a Caucasian, who was a Superintendent I like Jones, had “a lot of
problems” with Lemieux and Lyons, looked like “[he] was losing his mind” after some
meetings with those two men, and eventually resigned. Id. at pp. 13-15 (pp. 7-8 of
transcript). This vague testimony in no way supports an inference that Williams and
Jones were both treated badly by the same actors based on their skin color.
Perrin said he believed that Lyons and Lemieux treated Jones “unfairly” because
Perrin heard them “holler and scream at” Jones when they were inside a conference room
and he was outside. Perrin has no personal knowledge of what went on inside the
conference room or the reasons for the raised voices. Perrin testified further that Lyons
and Lemieux “usually exhibited some sort of dislike or hatred toward” Jones and
appeared to favor Johnson whenever problems arose between Johnson and Jones. Id. at
pp. 21-23 (pp. 11-12 of transcript). Perrin gave no reason for what he perceived as
dislike of Jones or favoritism toward Johnson. Perrin responded “Could be” to questions
whether he ever witnessed anything to suggest or whether he believed that Lyons and/or
Lemieux had a bias toward people who are not dark-complexioned African-Americans.
Id. at pp. 21 (p. 11 of transcript), 23-25 (pp. 12-13 of transcript). This testimony is
36

equivocal, speculative on its face and unsupported by any specific facts from which a
reasonable factfinder could infer bias based on color.
Finally, Perrin testified that, from his perspective, he thought Jones did a good job
and that it appeared that Nicholson let Lemieux and Lyons “pretty much run the show”
and Lemieux and Lyons “are really in charge.” Id. at pp. 21 (p. 11 of transcript), 29-31
(pp. 15-16 of transcript). This evidence from plaintiff’s subordinate raises no material
fact questions regarding the grievances and investigations filed against Jones by his
superiors or his other subordinates, or regarding Lemieux’s basis for giving Jones a
negative performance review. Perrin was not involved in and has no personal knowledge
about those decisions. He has no personal knowledge whether Jones was justified in
questioning or disobeying orders or policies promulgated by plaintiff’s superiors or
whether Jones adequately fulfilled all of his job responsibilities. The evidence that
Nicholson allowed Lyons and Lemieux to run the West Bank division and handle issues
that arose with their subordinates, which is supported by Assistant Director Hogan’s
deposition testimony, Record Doc. No. 37-1 at pp. 21-23 (pp. 11-12 of transcript), is
consistent with the chain of command and creates no inference of discriminatory bias.
To support his claims of color-based animus, Jones proffers the declarations under
penalty of perjury of Rutley, a typist at the Streets Department, and Montagino, an
apparently non-supervisory employee of defendant. Rutley and Montagino both state
that they heard Lyons say in August 2008 that he would make the Maintenance Section
37

a “Chocolate City.” Record Doc. No. 37-2 at pp. 1 & 2. Jones also cites Hogan’s
testimony that Rutley told him that Lyons made that comment. Record Doc. No. 37-1
at pp. 27-33 (pp. 14-17 of Hogan deposition transcript). Plaintiff asserts that Lyons’s
comment is direct evidence of discriminatory animus.
Assuming without deciding, solely for purposes of the pending summary judgment
motion, that Lyons made the “Chocolate City” comment, Hogan’s testimony about what
Rutley said that Lyons said is inadmissible hearsay. Fed. R. Evid. 801(c). Inadmissible
hearsay cannot create a genuine issue of disputed material fact. Yancy v. U.S. Airways,
Inc., 469 F. App’x 339, 342 n.1 (5th Cir. 2012) (citing Garcia v. Reeves Cnty., 32 F.3d
200, 204 (5th Cir. 1994)).
Lyons’s remark is not itself hearsay because it is the statement of an opposing
party’s supervisory employee offered against that party. Fed. R. Evid. 801(d)(2). Thus,
Rutley’s and Montagino’s declarations that they heard Lyons make the comment are
admissible. However, evidence of a single, isolated remark made in an unknown context
in August 2008, outside of plaintiff’s presence and unrelated to his employment, is
irrelevant to his claims of color discrimination and harassment more than two years later
in December 2010 through June 14, 2012. The Fifth “[C]ircuit’s stray remarks doctrine”
provides that offhand comments like this, standing alone, neither establish discriminatory
intent nor amount to discriminatory changes in the terms and conditions of employment,
and are insufficient to establish a genuine issue of material fact. Jackson v. Cal-Western
38

Packaging Corp., 602 F.3d 374, 380 & n.27 (5th Cir. 2010) (discrimination); Forbes v.
Catalyst Tech. Inc., 31 F. App’x 836, 2002 WL 243338, at *1 (5th Cir. Jan. 23, 2002)
(harassment); 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)) (same). Rather than
being direct evidence of discriminatory animus, Lyons’s remark has no probative value
as to plaintiff’s claims of discrimination and harassment based on his color.
The rest of Hogan’s testimony also fails to raise any disputed material fact issues.
He testified that Nicholson removed him from a meeting that was being held on an
unspecified date concerning either disciplining Jones or plaintiff’s performance
evaluation, and that Hogan was never again asked to participate in similar meetings.
Hogan explained that, during the meeting, he tried to clarify what he thought Jones was
saying “because what [Jones] was saying wasn’t making sense, so I tried to word it [in]
a way that made sense to me and to everyone else in the room and then ask him is this
what you were saying.” Id. at p. 25 (p. 13 of transcript). Hogan testified that Nicholson
became upset with him for trying to answer for Jones. Nicholson told Hogan that he
would be kicked out of the room if he did it again. “And I did it again and I was kicked
out of the room.” Id. at pp. 25-27 (pp. 13-14 of transcript). Hogan stated that the
Director decides who should participate in a grievance or disciplinary matter and the
Director has final say on all disciplinary matters. Id. at p. 35 (p. 18 of transcript).

39

Nothing in this testimony supports plaintiff’s allegation that Nicholson was harassing
him based on his color by excluding Hogan from this or future disciplinary meetings.
Plaintiff’s evidence of bias, therefore, consists solely of the darker complexions
of Lemieux, Lyons, Johnson and Andrea Williams and of his own testimony that these
persons were members of a “clique” that did not include him. Plaintiff’s deposition,
Record Doc. No. 34-2 at pp. 59-62 (pp. 54-57 of deposition transcript). These facts raise
no reasonable inference that any of the complained-of actions were based on plaintiff’s
skin color. “Bare allegations of racial discrimination are insufficient to create a genuine
dispute as to a material fact.” Delphin v. Grayson Cnty., 484 F. App’x 958, 962 (5th Cir.
2012) (citing Swanson v. Gen. Serv. Admin., 110 F.3d 1180, 1186 (5th Cir. 1997)).
Although Jones testified to his subjective belief that Lyons and Lemieux harassed
him because of his lighter skin color, “Fifth Circuit precedent makes it clear that
subjective belief of racial motivation cannot import racial animus into an individual’s
conduct, and, without objective evidence, is insufficient to create a prima facie claim for
a hostile work environment under Title VII.” Montgomery v. Sears Roebuck & Co., 720
F. Supp. 2d 738, 745-46 (W.D. La. 2010) (citing Lyles v. Tex. Alcohol Beverage
Comm’n, No. 09-20714, 379 F. App’x 380, 384-85, 2010 WL 2103006, at *4 (5th Cir.
May 24, 2010); Cavalier v. Clearlake Rehab. Hosp., Inc., 306 F. App’x 104, 107 (5th Cir.
2009); Johnson v. TCB Constr. Co., Inc., 334 F. App’x 666, 671 (5th Cir. 2009); Garza
v. Laredo Indep. Sch. Dist., 309 F. App’x 806, 809 (5th Cir. 2009); Baker v. FedEx
40

Ground Package Sys., Inc., 278 F. App’x 322, 329 (5th Cir. 2008); Watkins v. Tex. Dep’t
of Crim. Justice, 269 F. App’x 457, 464 (5th Cir. 2008); Ellis v. Principi, 246 F. App’x
867, 871 (5th Cir. 2007); Harris-Childs v. Medco Health Solutions, Inc., 169 F. App’x
913, 917 (5th Cir. 2006)) (emphasis added).
Thus, as to all of the allegedly harassing incidents, plaintiff’s
evidence is insufficient to establish a prima facie case [of hostile work
environment]. . . . [T]here is nothing in the record, aside from [his]
personal claims, that [he] was harassed at all. Even assuming that [he] was
harassed, [he] offers only [his] own subjective belief that it was on a
prohibited ground.
Not even [plaintiff himself] explained why [he] felt that [his color]
was the cause of the mistreatment [he] alleges. A fortiori there is no
evidence that the harassment was severe or was ignored by [his]
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 (quotation and citation omitted).
Accordingly, Jefferson Parish is entitled to summary judgment in its favor as a
matter of law on plaintiff’s hostile environment claim.
F.

Discrimination Based on Color

Jones claims that Lyons and Lemieux discriminated against him because of his
lighter skin color. Title VII “forbids discrimination on the basis of ‘color’ as well as on
the basis of ‘race.’ Light-skinned blacks sometimes discriminate against dark-skinned
blacks, and vice versa, and either form of discrimination is literally color discrimination.”
Williams v. Wendler, 530 F.3d 584, 587 (7th Cir. 2008) (citing Walker v. Sec’y of the
41

Treasury, 713 F. Supp. 403, 405-08 (N.D. Ga. 1989), aff’d, 953 F.2d 650 (11th Cir.
1992); Rodriguez v. Gattuso, 795 F. Supp. 860, 865 (N.D. Ill. 1992)); accord Nettle v.
Cent. Okla. Am. Indian Health Council, Inc., 334 F. App’x 914, 926 (10th Cir. 2009)
(citing Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007)); Rougeau v. La. Dep’t
of Soc. Servs., No. 04-432-JJB-DLD, 2008 WL 818961, at *8 (M.D. La. Mar. 25, 2008)
(citing Walker, 713 F .Supp. at 403).
As with any discrimination claim, Jones bears the burden to establish a prima facie
case of color discrimination.
[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 are not true, but are mere pretexts for
discrimination, or that the reasons are true, but his [protected characteristic]
was a motivating factor.
Jackson v. Dallas Cnty. Juvenile Dep’t, 288 F. App’x 909, 911 (5th Cir. 2008) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804-05 (1973)) (quoting Bryan
v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004)) (emphasis added).
Jefferson Parish argues, and the court finds, that Jones cannot establish the third
prong of a prima facie case of color discrimination. The Fifth Circuit has held repeatedly
42

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)) (emphasis added), 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 White, 548 U.S. at 68, 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).
None of the actions that Jones alleges are discriminatory, which occurred within
the relevant time period of October 13, 2011 (when plaintiff filed his EEOC complaint)
through June 14, 2012 (when the EEOC issued its right-to-sue letter), resulted in any loss
43

in compensation, duties, benefits or rank.

These actions consist of Johnson’s

confrontations with Jones twice at work and once offsite; Nicholson’s refusal to
discipline Johnson about the offsite incident; two instances of initially denied, but
ultimately restored, stand-by pay; Lyons’s failure to assign two call-out jobs to Jones;
discipline after Lemieux and Lyons observed Jones engaging in aggressive and
unprofessional behavior towards Savage; two complaints of insubordination when Jones
(1) refused to make minor adjustments on work orders and made verbal threats towards
Lyons, and (2) refused to accept Lyons’s instructions regarding the parade duty schedule;
and the February 15, 2012 “below expectations” performance review.
As a matter of law, these are not adverse employment actions. Thus, Jones cannot
establish a prima facie case of discrimination based on any of them. See King, 294 F.
App’x at 85-86 (“[A]llegations of unpleasant work meetings, verbal reprimands,
improper work requests, and unfair treatment do not constitute actionable adverse
employment actions”); Ellis, 246 F. App’x at 870-71 (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
44

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, 720 F. Supp. 2d at 744-45 (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 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”
are 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).
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. Jones
suffered no demotion or loss of pay after the February 15, 2012 evaluation. The review
gave him notice and an opportunity to improve before any ultimate employment action
would occur, which would only happen if he received another “below expectations”
evaluation. When, as here, plaintiff has produced no evidence connecting his negative
45

performance evaluation to his compensation or another ultimate employment decision,
he “has not shown an adverse employment action.” Id. (citing Pegram 361 F.3d at 283).
As explained previously, plaintiff’s demotion from Superintendent I to Road
Maintenance Foreman on January 29, 2013, after he received a second negative
performance review dated October 22, 2012, is not included within his claims of alleged
discriminatory events that are before this court. On August 20, 2013, almost one year
after he filed the instant action, Jones filed another EEOC charge based on these events
that is not a subject of this lawsuit.
Because he has not shown any adverse employment action, as defined by the Fifth
Circuit, Jones has not met his burden to establish the third prong of a prima facie case of
color-based discrimination. Accordingly, Jefferson Parish is entitled to summary
judgment in its favor as a matter of law on this claim.
G.

Intentional Infliction of Emotional Distress

To establish a claim of intentional infliction of emotional distress, Jones must
prove that defendant’s conduct was extreme and outrageous, that his emotional distress
was severe and that defendant desired to inflict severe emotional distress or knew that
severe emotional distress would be certain or substantially certain to result from its
conduct. Iturralde v. Shaw Group, Inc., 512 F. App’x 430, 435 (5th Cir. 2013) (citing
White v. Monsanto Co., 585 So. 2d 1205 (La. 1991)); accord LaBove v. Raftery, 802 So.
2d 566, 577-78 (La. 2001).
46

To rise to the tortious level, defendant’s conduct must be
so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community. Liability does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other
trivialities. Persons must necessarily be expected to be hardened to a
certain amount of rough language, and to occasional acts that are definitely
inconsiderate and unkind.
White, 585 So. 2d at 1209; accord Iturralde, 512 F. App’x at 435; LaBove, 802 So. 2d
at 577-78.
“Conduct which is merely [tortious] or illegal does not rise to the level of being
extreme and outrageous.” Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1025 (La.
2000). Louisiana Civil Code article 2315, from which the cause of action for intentional
infliction of emotional distress arises, “does not create liability for employment
discrimination.” Iturralde, 512 F. App’x at 435 (citing Hornsby v. Enter. Transp. Co.,
987 F. Supp. 512, 515 (M.D. La. 1997)) (emphasis added).
“Employment disputes must have some quality that places them beyond the
ordinary in order to qualify for intentional infliction of emotional distress.” Charles v.
JetBlue Airways Corp., No. 08-40, 2009 WL 273206, at *12 (E.D. La. Jan. 26, 2009)
(citing Dean v. Ford Motor Credit Co., 885 F.2d 300 (5th Cir. 1989)). “Courts ‘have
consistently limited causes of action for [intentional infliction of emotional distress] in
the workplace to cases which involve a pattern of deliberate, repeated harassment over
a period of time.’” Iturralde, 512 F. App’x at 435 (quoting Nicholas, 765 So. 2d at 1026)
47

(internal quotation omitted); accord Ware v. CLECO Power LLC, 90 F. App’x 705, 708
(5th Cir. 2004). “Mere violation of laws regulating conduct in the workplace is not
enough to establish intentional infliction.” Skidmore v. Precision Printing & Pkg., Inc.,
188 F.3d 606, 613 (5th Cir. 1999) (under Texas law, which is identical to Louisiana law).
Thus, actionable cases of intentional infliction of emotional distress arising in the
workplace are limited to situations where the distress is “more than a reasonable person
could be expected to endure” and the offending conduct is “intended or calculated to
cause severe emotional distress.” Nicholas, 765 So. 2d at 1026. Mere “disciplinary
action and conflict in a . . . workplace environment, although calculated to cause some
degree of mental anguish, is not ordinarily” extreme or outrageous. White, 585 So.2d
at 1210.
Because Jones has not produced evidence sufficient to raise a material fact issue
as to even a prima facie case of harassment, discrimination or retaliation, defendant’s
employment actions do not rise to the level of extreme and outrageous conduct, over a
sufficient period of time, to constitute a tort under Louisiana law. Iturralde, 512 F. App’x
at 435. Accordingly, defendant is entitled to summary judgment in its favor as a matter
of law on this claim.
CONCLUSION
Accordingly, IT IS ORDERED that defendant’s motion to for summary judgment
is GRANTED and plaintiff’s claims of color discrimination, harassment, retaliation and
48

intentional infliction of emotional distress are DISMISSED WITH PREJUDICE, plaintiff
to bear all costs of these proceedings. Judgment will be entered separately.

18th
New Orleans, Louisiana, this ___________ day of November, 2013.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

49