Stone v. Louisiana Department of Revenue

Filing 97

ORDER & REASONS: ORDERED that 78 Motion for Summary Judgment is GRANTED. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOANNE STONE

CIVIL ACTION

VERSUS

NO:

LOUISIANA DEPARTMENT OF REVENUE

UNITED STATES MAGISTRATE
JUDGE KAREN WELLS ROBY

12-3022

ORDER & REASONS
Before the Court is the Louisiana Department of Revenue’s (“Department”) Motion for
Summary Judgment (R. Doc. 78) seeking an Order from the Court to dismiss Joanne Stone’s
remaining Title VII retaliation claim and her state law defamation claim. The motion is opposed.
R. Doc. 93. The Department also filed a reply memorandum to the opposition R. Doc. 96.
I.

Factual Background
Joanne Stone, the Plaintiff, is an African-American woman who worked as a Revenue

Tax Auditor II for the Louisiana Department of Revenue. Stone initially worked in the New
Orleans office from July 17, 2001, until August 23, 2010. Sometime between August 23, 2010,
and September 7, 2010, 1 she transferred to the Department’s Houston, Texas, office where she
worked until she resigned on March 26, 2012. On August 12, 2010, Stone filed a complaint with
the Equal Employment Opportunity Commission (EEOC) alleging race discrimination and
retaliation against the Department. See R. Doc. 35-2, p. 27. She later amended her complaint to
include a claim for harassment based on her race on December 7, 2010. Stone was issued a right
to sue letter on September 20, 2012, and timely filed suit in this Court on December 20, 2012.
See R. Doc. 1, p. 14.

1

The exact date that Stone transferred is not mentioned in the record. However, counsel agreed to a
stipulation that Stone’s start date was sometime between August 23, 2010, and September 7, 2010. R. Doc. 78-3, p.
69.

Stone alleges that while employed by the Department her supervisor, Vendetta Lockley,
who is also an African-American woman, harassed her by questioning her ability to meet
deadlines, failing to give her credit for audits that she completed, giving her “desk audits” which
had lower assets than those assigned to her white colleagues, not approving audit hours in time to
be counted towards her year-end production numbers, and accusing her of losing paperwork.
Stone alleges that Lockley’s discrimination against her became so intense that she filed an
internal grievance with the Department on May 12, 2010, which was mitigated because the
Department arranged a transfer for Stone to the Houston office.
Stone also alleges that Lockley created a hostile work environment when she accused her
of losing an audit document and that she purposely delayed her transfer to the Houston office.
Once in the Houston office, Stone alleges that her telecommuting days were reduced from the
three days per week that she had in New Orleans to one day per week in Houston. Stone
contends that Lockley caused the decreased telecommute hours. See R. Doc. 26, p. 13-14.
Stone later requested an out-of-state position near her home in Mobile, Alabama. Her
request was denied. Stone alleges that the denial was based on her race as similar requests from
white employees were granted. See R. Doc. 26-1, p. 112. Stone claims that she was forced to
resign on March 26, 2012, because of continued harassment and hostile work conditions. She
later filed a second EEOC charge on February 28, 2013, alleging race discrimination, retaliation,
constructive discharge, and harassment for the same dates she alleged in the first charge. 2
On October 4, 2013, the Department filed a Motion to Dismiss (R. Doc. 30) seeking an
Order to dismiss Stone’s claims arguing that they: (1) were barred by res judicata; (2) Stone
failed to establish a prima facie case for each claim; and (3) she failed to exhaust her

2

The EEOC concluded its investigation and issued a Notice of Right to sue on June 10, 2013. The Notice
state that the EEOC closed the charge because the “charging party has filed suit in federal court.” Doc. 35-2, p. 29.
2

administrative remedies. See R. Doc. 30. The Court granted the Department’s motion finding
that Stone failed to state a claim pursuant to Rule 12(b)(6) and dismissed the action. R. Doc. 41.
Stone sought review from the United States Court of Appeal for the Fifth Circuit. The
Fifth Circuit affirmed the Court’s dismissal of Stone’s discrimination and harassment claims but
reversed and remanded Stone’s retaliation and defamation claims. See R. Doc. 66-1, p. 15. The
Fifth Circuit limited Stone’s retaliation claim to events that occurred after May 2010. 3
As to the instant motion, the Department seeks dismissal of Stone’s remaining retaliation
and defamation claim. It argues that Stone’s defamation claim must be dismissed because: (1)
she fails to allege that a Department employee made a defamatory statement; (2) the Department,
as Stone’s former employer, is immune from civil liability for disclosure of information
regarding her prior employment to a prospective employer unless the statement was knowingly
false and deliberately misleading; and (3) Stone has not established that the Department provided
any statement regarding her employment to a prospective employer. R. Doc. 78-2, p. 4-5. With
respect to her retaliation claim, the Department argues that Stone: (1) has not established that
Lockley had knowledge of her prior Title VII protected activity (i.e. the filing of her
discrimination grievance) and (2) did not experience an adverse employment action while
employed by the Department. Id. at 7-9.
In opposition, Stone contends that: (1) her defamation claim has not been “processed
fully through discovery” and that her deposition transcript which is attached to the Department’s
instant motion is “still under consideration”; (2) Lockley knew that Stone lodged a
discrimination grievance against her; (3) she was the victim of an adverse employment action
3
The Fifth Circuit determined that “[t]he majority of Stone’s allegations supporting her claim for
retaliation occurred prior to her filing an internal grievance in May 2010 and the EEOC charge in August 2010. Any
facts claimed as retaliation prior to May 2010 do not have a causal connection between the protected activity and the
adverse employment action.” R. Doc. 66-1, p. 14.

3

when Lockley restricted her telecommute days, incorrectly claimed that some of her audits were
late, and delayed her transfer to the Houston office, and (4) the Department has withheld
discovery regarding her job performance and evaluation. R. Doc. 93, p. 1-3.
II.

Standard of Review
Federal Rule of Civil Procedure (“Rule”) 56(a) provides that summary judgment is

appropriate where “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). A fact is “material”
if resolving that fact in favor of one party could affect the outcome of the suit. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986); Poole v. City of Shreveport, 691
F.3d 624, 626-27 (5th Cir. 2012).
Where the moving party bears the burden of proof at trial as the plaintiff, or as a
defendant asserting an affirmative defense, that party must support its motion with “credible
evidence . . . that would entitle it to directed verdict if not controverted at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 331, 106 S. Ct. 2548 (1986). In such a case the moving party must
“establish beyond peradventure all of the essential elements of the claim or defense to warrant
judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis
in original); see also Access Mediquip L.L.C. v. United Healthcare Ins. Co., 662 F.3d 376, 378
(5th Cir. 2011).
Credible evidence may include depositions, documents, affidavits, stipulations,
admissions, interrogatory answers, or other materials. Fed. R. Civ. P. 56(c). Moreover, in
evaluating a motion for summary judgment by the party with the underlying burden of proof, the
Court considers the substantive evidentiary burden of proof that would apply at the trial on the
merits. Anderson, 477 U.S. at 252. The moving party’s burden is therefore “understandably

4

heavier” where that party is the plaintiff. S. Snow Mfg. Co. v. Snow Wizard Holdings, Inc., 829 F.
Supp. 2d 437, 447 (E.D. La. 2011).
Once the moving party has made its showing, the burden shifts to the non-moving party
to produce evidence that demonstrates the existence of a genuine issue of fact. Engstrom v. First
Nat. Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322–
24). All justifiable inferences are to be drawn in the non-moving party’s favor. Anderson, 477
U.S. at 255. However, “[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for Summary Judgment.” Brown v. City of
Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003) (internal citations omitted); see also Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (stating that “mere conclusory allegations” are
insufficient to defeat a motion for summary judgment). Though the Court may not evaluate
evidence on a motion for summary judgment, the Court may make a determination as to the
“caliber or quantity” of evidence as part of its determination of whether sufficient evidence exists
for the fact-finder to find for the non-moving party. Anderson, 477 U.S. at 254.
Moreover, credibility determinations have no place in summary judgment proceedings.
See Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993); Leonard v. Dixie Well Serv.
& Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987). The non-movant’s summary judgment
evidence must be taken as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A Court view facts in the light most favorable to the non-movant and draw all reasonable
inferences in his favor. Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). If the nonmovant sets forth specific facts in support of allegations essential to her claim, a genuine issue of
material fact is presented, and summary judgment is inappropriate. Id. Summary judgment may
be improper, even though the basic facts are undisputed, if the ultimate facts in question are to be

5

inferred from them, and the parties disagree regarding the permissible inferences that can be
drawn from the basic facts. Winters v. Highlands Insurance Company, 569 F.2d 297, 299 (5th
Cir. 1978). “‘(T)he choice between permissible inferences is for the trier of facts.’” Nunez v.
Superior Oil Co., 572 F.2d 1119 (5th Cir. 1978). Where a jury is called for, the litigants are
entitled to have the jury choose between conflicting inferences from basic facts. Id.
III.

Analysis
A.

Defamation

The Department argues that: (1) Stone’s complaint fails to identify a defamatory
statement; (2) there is no admissible evidence that the Department knowingly made statements
that were false and conveyed with the intention to mislead or deceive the recipient; and (3) Stone
has not provided evidence that anyone within the Department provided statements to her
prospective employers. R. Doc. 78-2, p. 3-6.
In opposition, Stone contends that her defamation claim still needs additional discovery
and that her deposition transcript which is attached to the Department’s instant motion is “still
under consideration.” R. Doc. 93-1, p. 2. Further, she argues that pursuant to Federal Rule of
Civil Procedure 56(d) when supported by an affidavit as to why she, as the nonmovant, cannot
present facts essential to justify her opposition, the Court may: (1) defer considering the motion
or deny it, (2) allow time to obtain affidavit or declarations or to take discovery, or (3) issue any
other appropriate order. R. Doc. 93-1, p. 4.
The Department also submitted a reply memorandum to support the subject instant
motion. It argues that Stone’s contention that additional discovery must occur before the Court
rules on her defamation claim is unfounded because she has taken at least six depositions and
propounded numerous discovery requests since the matter was remanded from the Fifth Circuit.

6

R. Doc. 96, p. 3. It also notes that Stone has conducted five depositions of her potential
employers who have all testified that they did not call the Department for employment
information regarding Stone. Id. at 4.
As an initial point, the Court is not persuaded by Stone’s argument that because
discovery has not been completed in this case, Federal Rule of Civil Procedure 56(d) should
apply. This rule states that: [i[f a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” Fed. Civ. P. 56(d). Stone has not provided
an affidavit nor has she presented any declaration providing an explanation as to why she cannot
present facts to justify her position.
The record reflects that Stone’s defamation and retaliation claims were remanded from
the Fifth Circuit on December 17, 2014. R. Doc. 66. Discovery on these claims ensued with
August 11, 2015 deadline. See R. Docs. 62; 68. Stone filed a Motion to Continue Trial and All
Dates (R. Doc. 71) on August 1, 2015, and thereafter the Court extended the discovery period
until January 12, 2016. R. Doc. 73. The discovery period was extended again to September 21,
2016, after Stone’s previous counsel withdrew. R. Doc. 92. Neither party has filed a discovery
motion to bring a dispute to the Court’s attention since remand. Stone undoubtedly has had
ample time to conduct discovery and the Court is not persuaded by Stone’s argument that her
defamation claim has not been fully processed through discovery. The Court will now address
the substance of Stone’s defamation claim.
Under Louisiana law, Stone must prove the following four elements to establish a prima
facie case for defamation: (1) a false and defamatory statement concerning another; (2) an

7

unprivileged communication to a third party; (3) fault (negligence or greater) on the part of the
defendant; and (4) resulting injury. See Bellard v. Gautreaux, 675 F.3d 454, 461 (5th Cir. 2012).
(citing Costello v. Hardy, 864 So.2d 129, 139 (La. 2004)). If even one of the required elements is
lacking, the cause of action fails. Cooksey v. Steward, 938 So. 2d (La.App.2d 2006).
Further, under Louisiana revised statute 23:291(a) “any employer that, upon request by a
prospective employer or a current or former employee, provides accurate information about a
current or former employee’s job performance or reasons for separation shall be immune from
civil liability and other consequences of such disclosure provided such employer is not acting in
bad faith. An employer shall be considered to be acting in bad faith only if it can be shown by a
preponderance of the evidence that the information disclosed was knowingly false and
deliberately misleading.” La R.S. 23:291(a).
Thus, “communications between a former employer and prospective employers of an
employee enjoy a conditional or qualified privilege, and such a communication is not actionable
when made in good faith for legitimate purposes.” Butler v. Folger Coffee Co., 524 So.2d 206
(La.App. 4th Cir. 1988). A “good faith” statement, privileged from a claim of defamation, is
defined as a statement made with reasonable grounds for believing its truth; only when lack of
such reasonable grounds is found can it be said that the person uttering the statement is actuated
by malice or ill will. Chapman v. Ebeling, 945 So.2d 222, 228 (La.App. 2d Cir. 2006).
For example, in Bellard v. Gautreaux, 675 F.3d 454 (5th Cir. 2012), Plaintiff was
dismissed from a sheriff training program for falling asleep in class and allegedly making
inappropriate sexual comments. Id. at 457. He requested a name clearing hearing but was denied.
Thereafter, Plaintiff filed suit against the Sheriff. He claimed that the Sheriff defamed him by
telling people, including the Chief of Police of the Baton Rouge Police Department which was a

8

prospective employer, outside of the Sheriff’s Office about his sexual harassment allegation. Id.
at 459. The District Court summarily dismissed the defamation claim and the Fifth Circuit
affirmed. The Fifth Circuit reasoned, in part, that “any information relayed to [the Police
Department] by the Sheriff’s office personally is protected under Louisiana law which protected
information provided by a former employer to a prospective employer.” Id. at 465.
Similarly, in Livingston v. Gavilo, 2006 WL 37029, at *4 (W.D. La. Jan. 5, 2006), the
United States District Court for the Western District of Louisiana held that the Plaintiff failed to
establish that her former employer acted in bad faith when she gave an unfavorable evaluation to
her prospective employer. There, the Plaintiff was terminated from her job teaching parenting
classes for a non-profit organization. Id. at *1. She was terminated because of discrepancies in
her time records. Id. After her termination, the former employer provided an employment
reference to her prospective employer that she was terminated because of the time sheet
discrepancies. Id. at 2. In applying the subject Louisiana statute, the Court reasoned that the
Plaintiff “has not demonstrated that [the former employer] relied on inaccurate information when
she provided a reference to the [prospective employer], nor that [the reference] was knowingly
false and deliberately misleading. Id. at *4.
Here, Stone claims that she suffered from defamation due to the Department, in particular
Vendetta Lockley, giving poor references to her prospective employers which resulted in her not
being hired for positions she sought. R. Doc. 78-3, p. 82. Stone paid two reference-checking
companies, 4 in particular CheckYouReference.com, to call the Department to assess what her
references may have been to prospective employers. She states that Lockley told the reference
4
Stone was unable to recall the name of the second reference checking company. See R. Doc. 78-3, p. 8587. Stone stated that a “reference checker is a company that you can, you know, tell them to call your employer and
just get a reference on you, just to see what they say or what they may be indicating to your future employers.” Id. at
82.

9

checker that she lacked organizational skills. R. Doc. 78-3, p. 82. She further alleges that during
her job interview with the Mobile, Alabama Department of Treasury the interviewer “frowned”
and “shook his head” 5 when he referred to the reference he received from the New Orleans
Office regarding her. She suspects that the negative reception she received from the interviewer
reveals that personnel in the New Orleans Office gave her an unfavorable reference. However,
Stone also stated that she does not have written documentation as to who the interviewer spoke
to or the statements that he received. 6
Moreover, Stone stated that during her interview for a position with a company that does
account payables for McDonalds, the interviewer mentioned that the position only requires
organizational skills. R. Doc. 78-3, p. 95. 7 Given that the reference checker that she hired
reported that Lockley stated that she lacked organizational skills, Stones suspects that
interviewer’s reference to organizational skills as a job requirement is an indication that Lockley
continued to tell prospective employers that she was disorganized. Id. 8
The record reflects that Lockley repeatedly stated that she considered Stone to be
disorganized. An example is Stone’s state employee performance planning and review (PPR)
form. The form which is dated August 19, 2010, shows that Lockley reported that Stone

5

R. Doc. 78-3, p. 91.

6
“Q. Has he [the interviewer with the Mobile, Alabama Department of Treasury] ever told you a name of
the persons he spoke with on this phone call? A. He said ‘New Orleans Office.’ He didn’t give a name” R. Doc. 783. p. 95.
7

“So when I went on this interview, he was like, “All you have to do for this job is just have organizational
skills. And that’s an easy job. You just have to be organized to do it. So he was referring to the same thing that is
listed on the actual reference checker, that they said on there when they spoke to Vendetta.” Id. at 95.
8
“Q. Has anybody told you about any reference checks they’ve made to the Louisiana Department of
Revenue or your former supervisor at the Department of Revenue? A. Oh, yes. This, I guess, Al Sessions, he told
me that he called the number on the application and – you know, he’s like making all these signs and faces and
doing, you know, all of this (indicating). And he said, you know, ‘I called the number in New Orleans,’ you know
and he was making faces, showing discontent, disdain, you know.” R. Doc. 78-3, p. 89.

10

completed a complex audit and that, although it appeared that she grasped the concepts, as the
audit progressed her performance declined as there was an increase in mistakes and
disorganization in the presentation of data. R. Doc. 78-9, p. 3.
Stone received a 330 rating score for the reporting period which put her on the high-end
of the “Solid Sustained Performance” 9 tier which is the third tier of five performance tiers. The
tiers above “Solid Sustained Performance” are “Outstanding” and “Exceeds Expectations.” R.
Doc. 78-9, p. 18. The rating tiers below “Solid Sustained Performance” are “Needs
Improvement” and “Poor.” Id. A score of 330 essentially means that Stone was an average
employee. Lockley repeated her view that Stone lacked organizational skills to Rex Christensen
who is an investigation agent with CheckYourReference.com on October 14, 2013. R. Doc. 7811, p. 2. In response to the question, “Can you describe some areas where there may be room for
improvement?”, Lockley stated, “I would say organization skills, She wasn’t as organized as I
would have liked her to be.” R. Doc. 78-11, p. 4.
In total, the record reflects that Lockley, when prompted, provided her evaluation of
Stone’s work performance in good faith. Outside of Stone’s conjectures, the record is void of any
evidence that Lockley or any other person with the Department provided statements that were
knowingly false and deliberately misleading. The Court finds that under these circumstances,
Stone has not created a genuine issue of fact that the Department acted in bad faith. Therefore,
the state law defamation claim is summarily dismissed with prejudice.
B.

Retaliation

The Department argues that the record is void of evidence that Stone engaged in any
activity protected by Title VII prior to the alleged retaliatory incidents. R. Doc. 78-2, p. at 7. It
further argues that Stone did not face retaliation, as it was she who requested relocation to the
9

The numerical scale for the “Solid Sustained Performance” tier is 250 points to 349 points.
11

Houston office and agreed to delay her relocation because of illness and the need to complete her
New Orleans files before leaving. Id. at 7-8. Furthermore, it asserts that Stone never faced an
adverse employment action as Lockley gave her a “Solid Sustained Performance” and
recommended her for a merit increase which, the Department argues, is evidence of her trying to
advance rather than hinder Stone’s professional development. Id. at 8. Lastly, the Department
argues that Stone’s claim is filled with “workplace criticisms and job scrutiny” that do not rise to
the level of an adverse employment action for the purpose of a retaliation claim. Id. at 9-10. 10
In response, Stone contends that during her deposition she testified that Lockley
retaliated against her for filing her EEOC grievance by restricting her telecommute days and
incorrectly claiming that some of her audits were late. R. Doc. 93, p. 2. Stone also argues that
contrary to the Department’s position, it caused the delay in her transfer to the Houston office.
Id. Further, Stone contends that Lockley testified that she knew of the grievance that Stone filed
against her. Id. Stone also argues that the Department has failed to respond fully to her discovery
requests regarding: (1) a rating level of 3 compared with rating levels of 4 for paid raises and
promotions and (2) her request for production for audited cases in which the Department gave
her credit, those in which she did not receive credit, and those that were not returned in time of
her end of the year production numbers. R. Doc. 93, p. 1.
Title VII prohibits retaliation against employees who engage in protected conduct,” such
as filing a charge of harassment or discrimination. Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d
318, 325 (5th Cir. 2002). To prevail on a Title VII retaliation claim, the Stone must establish that
(1) that she participated in an activity protected by the Title VII; (2) that her employer took an
10
The Department filed a reply memorandum in which it reasserts that there is no evidence that the prior
formal grievance involved any accusation of Title VII discrimination or that Lockley had knowledge of Stone’s
original formal inter-departmental grievance which is the only possible grievance that forms the basis of her
remaining retaliation claim. Further, the Plaintiff has failed to provide evidence that the subject grievance involved
any alleged Title VII discrimination to serve as the basis of her retaliation claim. R. Doc. 96, p. 1-3.

12

adverse employment action against them; and (3) that her participation in the protected activity
caused the adverse employment action. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651652 (5th Cir. 2012) (citing Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 523 (5th Cir.
2008)). If the plaintiff establishes all three elements, then the burden shifts to the employer to
show a legitimate and non-retaliatory reason for its adverse employment action. If the employer
can show a legitimate and non-retaliatory reason, then the burden shifts back to the plaintiff to
demonstrate that the employer’s reasoning for the adverse employment action is pretext for
retaliation against the plaintiff. Pineda v. United Parcel Ser., Inc., 360 F.3d 483, 486–87 (5th
Cir. 2004).
Under Title VII, a plaintiff may engage in protected activity if she may make a charge,
testify, assist, or participate in any manner in an investigation, proceeding, or hearing under Title
VII. Id. An informal complaint to a supervisor regarding an unlawful employment practice may
satisfy the opposition requirement of a Title VII retaliation claim.” Tureaud v. Grambling State
Univ., 294 Fed.Appx. 909, 914-15 (5th Cir. 2008). “To establish a causal link between the
protected activity and the adverse employment decision, the evidence must demonstrate that the
decision maker had knowledge of the protected activity.” Id. Here, Stone engaged in a protected
activity by filing an internal complaint with the Department on May 12, 2010, and an EEOC
charge on August 12, 2010. 11
Moreover, for purposes of a retaliation claim, an adverse employment action is one that
“a reasonable employee would have found . . . materially adverse, which in this context means it
well might have dissuaded a reasonable worker from making or supporting a charge of

11

“An informal complaint to a supervisor regarding an unlawful employment practice may satisfy the
opposition requirement of a Title VII retaliation claim.” Tureaud v. Grambling State Univ., 294 Fed.Appx. 909, 91415 (5th Cir. 2008).

13

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). “[T]he
significance of any given act of retaliation will often depend upon the particular circumstances.
Context matters.” Id. at 69. Normally, “petty slights, minor annoyances, and simple lack of good
manners will not create such deterrence.” Id. at 68.
Further, the Fifth Circuit has limited actionable retaliatory conduct to mean “ultimate
employment decision” such as “such as hiring, granting leave, discharging, promoting, and
compensating.” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.2007). 12 An
employment action that “does not affect job duties, compensation, or benefits” is not an adverse
employment action. Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). Allegations
of unpleasant work meetings, verbal reprimands, improper work requests, and unfair treatment
do not constitute actionable adverse employment actions. King v. Louisiana, 294 F. App’x 77, 85
(5th Cir. 2008) (citing Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000)).
The record is unclear as to whether Lockley had knowledge that Stone engaged in the
protected activity of filing a grievance against her for discrimination, as Lockley’s deposition
transcript which is cited in Stone’s opposition is not in the record. 13
However, irrespective of whether Lockley knew that Stone complained of discrimination,
the facts at issue turn on the second element – whether she suffered an adverse employment
action (i.e. whether Lockley retaliated against Stone by hindering her professional development,
impeding her transfer to the Houston office, and limiting her telecommuting privileges).

12

Major changes in compensation, duties, and responsibilities constitute ultimate employment actions.
Pegram, 361 F.3d at 282 n. 8 (citing Hunt v. Rapides Health Care Sys., LLC, 277 F.3d 757, 770 (5th Cir.2001)).
13

The Department argues that: “Plaintiff cites pages nine and ten of Mrs. Lockley’s deposition to argue that
she had knowledge of plaintiff original formal grievance. However, plaintiff’s counsel at Mrs. Lockley’s deposition
never clarified which of plaintiff’s many grievances she had been informed of.” R. Doc. 96, p. 2.

14

Here, Stone has not established that she suffered an adverse employment action while
employed by the Department. As noted above, to constitute an adverse employment action the
act must be materially adverse that would dissuade a reasonable worker from making or
supporting a charge of discrimination. Regarding events that occurred after May 2010, Stone
alleges that Lockley retaliated against her by not giving her credit for all of her audited cases,
delayed her transfer to Houston, purposely delayed in returning audit cases to her in an effort to
affect negatively her end-of-the-year production numbers, and convinced her supervisors in
Houston to limit her telecommuting privileges. See R. Doc. 93-1, p. 2.
However, based on Stone’s deposition transcript, her transfer to the Houston office was
delayed by her own desire to close out her files in New Orleans before she transferred. R. Doc.
78-3, p. 65. 14 Stone also testified that during the time she was trying to close out cases she was
out on sick leave from the end of July 2010 until August 17, 2010, which further delayed her
Houston transfer Id. at 63. Ultimately, Stone agreed with Jay Frost, the director, to delay her
transfer until August of 2010. Id. at 66.
The transcript also reveals that the Houston office did not allow its employees to
telecommute until June or July of 2011 and permitted telecommuting two days a week. Id. at 45.
When the Houston office allowed its employee to telecommute, Stone was allowed to
telecommute one day a week. Id. at 57.
Although the Fifth Circuit has not specially addressed whether restriction of
telecommuting constituted an adverse employment action, numerous federal courts have held
that denying an employee’s request to telecommute is not an adverse employment action for
14
“Q: “All right, So were they completed before you went out on sick leave?” A. “I completed the one that
I had – that I was suppose to complete. I remember working in the office and completing the ones that I mentioned
that I was supposed to complete. I had waiver on the others ones.” Q: Okay. “What day were you expecting to go to
the Houston office?” A: “I actually was going to leave I think earlier in July, but I wanted to make sure everything
that I everything I can just turn in ahead of – you know, before I left. But when I saw that I was constantly being
targeted, I decided that it was best that I just go ahead on now.” R. Doc. 78-3, p. 65

15

purpose of Title VII. See Allbritain v. Tex. Dep’t of Ins., 2014 WL 272223, at *10 (W.D.Tex.,
Jan. 23, 2014) (citing Lewis v. CareCore Nat'l LLC, 2012 WL 3704985, *9 (D.Colo. May 30,
2012) (“Even if Plaintiff was inconvenienced by having to commute to work as opposed to
telecommute from home, a mere inconvenience is not an adverse employment action.”) (internal
citations omitted); Homberg v. UPS, , 2006 WL 2092457, at *9 (D.Kan. July 27, 2006) (noting
“district courts in other jurisdictions have consistently held that the denial of a request to work
from home is not adverse employment action”); Haas v. Zurich N. Am., 2006 WL 2849699, at *4
(N.D.Ill. Sep.29, 2006) (“The fact that [plaintiff's supervisor] did not permit Ms. Haas to work
from home every time she requested is also not an adverse employment action.”).
The Court is not persuaded by Stone’s argument that the Court should rule in her favor
because the Department has refused to respond fully to her discovery requests concerning: (1)
her rating level of 3 as compared with rating levels of 4 for pay raises and professional
promotions and (2) her request for production of audit cases in which she was given credit, those
in which she was not given credit, and ones that were not returned in time for her end of the year
production numbers. R. Doc. 93, p. 1.
The Court notes that this case has been pending for over three years and a half. During
this time, the record reflects that Stone never filed a motion to compel to seek an Order from the
Court compelling production of materials that she now argues the Department failed to produce.
Moreover, there is also no evidence that Stone propounded the mentioned discovery requests as
there are no such requests in the record nor did she attach the request to her opposition. Even
assuming that Stone has the information that she seeks which relates to her job performance and
what she perceives as a negative evaluation, negative performance evaluations, even if
undeserved, are not adverse employment actions. Thompson v. Exxon Mobil Corp., 344 F. Supp.

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2d 971, 982 (E.D. Tex. 2004) (citing Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998)
(“[N]egative performance evaluations, standing alone, cannot constitute an adverse employment
action.”)).
Stone testified that she was never disciplined by Lockley or anyone else when she
worked in the New Orleans office. R. Doc. 78-3, p. 81. In addition, her wages never decreased.
Id. Perhaps most importantly, Lockley who Stone alleged retaliated against her, in fact,
recommended her for a merit increase for her work performance during 2010 prior to her
relocation. R. Doc. 78-9, p. 1. Stone has therefore failed to establish that she suffered an adverse
employment action during her employment with the Department. Accordingly, the retaliation
claim is summarily dismissed with prejudice.
IV.

Conclusion
Accordingly
IT IS ORDERED that the Louisiana Department of Revenue’s Motion for Summary

Judgment (R. Doc. 78) is GRANTED.
New Orleans, Louisiana, this 13th day of July 2016.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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