Toval v. Children's Hospital

Filing 37

ORDER & REASONS: granting 19 Motion for Summary Judgment; FURTHER ORDERED that all of Plaintiff's claims against Children's Hospital are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 10/27/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRIAN TOVAL

CIVIL ACTION

VERSUS

NO: 13-5848

CHILDREN'S HOSPITAL

SECTION:
J(2)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
19) filed by Defendant, Children's Hospital ("Children's"), as well
as

an

Opposition

("Plaintiff"),

(Rec.

and

Doc.

28)

Children's

by

Reply

Plaintiff,
(Rec.

Doc.

Brian
34).

Toval
Having

considered the motion, the parties’ submissions, the record, and
the applicable law, the Court finds, for the reasons expressed
below, that the motion should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
This matter arises out of an Equal Employment Opportunity
Commission ("EEOC") Claim filed by Plaintiff against Children's,
his previous employer. Plaintiff, an African American male, began
his

career

at

Children's

Hospital

in

1991

as

a

medical

technologist. In 1999, Plaintiff became a systems analyst in the
Information Technology (IT) department, and was promoted to Senior
Systems Analyst in 2002, which was the position he held until his
resignation

in

August,

2011.

1

In

2006,

Annette

Perilloux

("Perilloux"), a Caucasian woman, was promoted to project manager
and began serving as Plaintiff's direct supervisor. In June, 2008,
Plaintiff presented a number of grievances to his second line
supervisor, Tammy Reites ("Reites"), also a Caucasian woman. A
meeting was held, in which Perilloux was also present, where
Plaintiff aired a number of complaints with his supervisors.
Plaintiff has not provided the Court with specifics regarding these
complaints.
In August, 2010, Plaintiff informed Perilloux that he wanted
to apply for the supervisory position of Program Team Lead.
Plaintiff alleges that Perilloux informed him that the position did
not yet exist. Yet, on November 9, 2010, Perilloux announced that
the Project Team Lead position had been filled by Rhonda Zimmer
("Zimmer"), a Caucasian woman who worked with Plaintiff as a senior
analyst. This promotion was granted to Zimmer without any interview
or announcements to other analysts regarding openings for the
position. On November 11, 2010, two days after Zimmer's promotion,
Plaintiff filed a grievance with Doug Mittelstaedt ("Mittelstaedt")
in the Human Resources Department of the hospital, claiming that he
had been denied promotion to the Project Team Lead position as a
result

of

his

race.

After

conducting

an

investigation,

and

consulting with both Perilloux and Reites, Mittelstaedt provided
Plaintiff with a detailed memorandum in which he defended the
decision to promote Zimmer, rather than Plaintiff, to the Project

2

Team Lead position. Plaintiff responded to Mittelstaedt, stating
that he had to conclude that the reason why he was not promoted to
the position was because he is a "Black man." (Rec. Doc. 28-1, p.
5).
Plaintiff further alleges that after he filed his grievance
with

Mittelstaedt,

Plaintiff

endured

"prolonged

and

intense

retaliation" in the form of public humiliation, heavy work loads,
and excessive scrutiny of his work by Zimmer. In June, 2011,
Plaintiff

began

seeing

several

physicians

for

anxiety

and

depression. Plaintiff alleges that his doctors advised him to take
medical leave and resign from his job at Children's, which he did.
Also in June, 2011 prior to his resignation,
Charge

of

Discrimination

with

the

Equal

Plaintiff filed a
Employment

Office,

asserting that he was discriminated against by Children's through:
(1) a discriminatory failure to promote and (2) a retaliatory
failure to promote.1 In November, 2011 Plaintiff amended this

1

Plaintiff's EEOC Charge reads as follows:

I. I began employment with Respondent as a Medical Technologist on
January 15, 1991. Later I became a Senior Systems Analyst. On June
9, 2008, I complained about unequal treatment in promotional
opportunities through a grievance to Tammy Reites (White) to no
avail. In 2010, I became aware of an expressed interest in the
Project Lead position for which I qualify. On or about November 9,
2010, this position was given to [Rhonda Zimmer] (White) without
being posted.
II. Respondent failed to provide me with adequate reasons for
denying me the opportunity to apply for the position.
III. I believe that Respondent has violated Title VII of the Civil
Rights Act of 1964, as amended, by denying me a promotional
opportunity in retaliation for complaining about protected activity
based on my race (Black).

3

charge to include claims of retaliation based on his complaint of
discrimination in November, 2010, and the filing of his EEOC
charge.2 Plaintiff then filed a complaint against Children's in
this Court on September 17, 2013, seeking damages for the claims
asserted

in

his

EEOC

charge

and

the

subsequent

amendment.

Children's then filed the instant motion, seeking summary judgment
in its favor and dismissal of all of Plaintiff's claims.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no material issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”

Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P.
56(c)); See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).

When assessing whether a dispute as to any

material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.”

Delta & Pine Land Co. v. Nationwide

(Rec. Doc. 28-20).
2

Plaintiff's letter of amendment to the EEOC specifically provides in

part:
"I want you to know that, in no uncertain terms, I want to pursue
my case against Children's Hospital for discrimination, retaliation
against me for filing a grievance with the hospital and with the
EEOC, and for harassing me to the point that I needed to take
medical leave."
(Rec. Doc. 28-23).

4

Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).

All

reasonable inferences are drawn in favor of the nonmoving party,
but

a

party

cannot

defeat

summary

judgment

allegations or unsubstantiated assertions.

with

conclusory

Little, 37 F.3d at

1075. A court ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.”

Delta, 530

F.3d at 399.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party “must come
forward with evidence which would ‘entitle it to a directed verdict
if the evidence went uncontroverted at trial.’” Int’l Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991)
(citation omitted). The nonmoving party can then defeat the motion
by either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325.

The burden

then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a

5

material issue exists. See id. at 324.

The nonmovant may not rest

upon the pleadings, but must identify specific facts that establish
a material issue for trial.

See, e.g., id. at 325; Little, 37 F.3d

at 1075.
DISCUSSION
A. Claims Before the Court
The parties first dispute the types of claims properly before
the Court. Children's argues that this Court may hear only the two
claims contained in the Complaint: (1) discriminatory failure to
promote in November 2010; and (2) retaliatory failure to promote in
November 2010 (as a result of Plaintiff's complaint to Reites made
in 2008).3 (Rec. Doc. 19-2, p. 6-7).

In addition to these claims,

Plaintiff also asserts that the Court should hear his claims
regarding Children's alleged retaliation for Plaintiff's complaint
of discrimination in 2010 and his filing of his EEOC charge in
2011.4 (Rec. Doc. 28, p. 22). Children's disputes that these
particular
arguing

retaliation

that

Plaintiff

claims

are

failed

to

properly

before

exhaust

his

the

Court,

administrative

3

Children's also notes that Plaintiff has raised a number of other claims
he wishes to bring against Children's during his deposition including a claim for
constructive discharge, which Children's asserts are time-barred, and are not
proper to be heard by the Court in this matter. Because Plaintiff does not
dispute this contention and does not seek to have these claims heard before the
Court, the Court finds it unnecessary to address this argument.
4

When listing the claims that are properly before the Court in his
Opposition memorandum, Plaintiff fails to note the retaliatory failure to promote
claim, however, considering the language of Plaintiff's original EEOC charge, the
Court finds this claim is properly before the Court.

6

remedies regarding these claims, which precludes this Court from
considering them. (Rec. Doc. 19-2, p. 6-7). Plaintiff, in response,
contends that these retaliation claims are sufficiently related to
the original claims included in his EEOC charge, so as to "relate
back" to the original charge. As such, Plaintiff asserts that he
sufficiently exhausted his administrative remedies regarding these
particular claims, making them proper before this Court.
"It is well-settled that courts have no jurisdiction to
consider Title VII claims as to which the aggrieved party has not
exhausted administrative remedies." Nat'l Ass'n of Gov't Employees
v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 711 (5th
Cir. 1994) (citing Tolbert v. U.S., 916 F.2d 245, 247-48 (5th Cir.
1990)). In order to sufficiently exhaust their administrative
remedies,

aggrieved

employees

must

file

an

EEOC

charge

of

discrimination with their respective Equal Employment Office,
detailing the complaints of the alleged discriminatory behavior
they intend to investigate and ultimately litigate. Pacheco v.
Mineta, 448 F.3d 783, 788 (5th Cir. 2006). The scope of this
exhaustion

requirement

has

been

determined

in

light

of

two

competing policies underlying Title VII. Id. First, the Fifth
Circuit has noted that Title VII was intended for the "unlettered
or unsophisticated employee," and a limitation of judicial relief
to

those

claims

that

comply

with

"technical

niceties"

would

conflict with this purpose of Title VII. Id.; See Sanchez v.

7

Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). However,
this policy is to be balanced against a primary purpose of Title
VII

which

is

to

"trigger

the

investigatory

and

conciliatory

procedures of the EEOC in [an] attempt to achieve non-judicial
resolution of employment discrimination claims." Pacheco, 448 F.3d
at 788-89; Sanchez, 431 F.2d at 466. In light of these competing
policies, the scope of a civil action encompasses not simply those
complaints

included

in

the

EEOC

charge,

but

"any

kind

of

discrimination like or related to the charge's allegations, limited
only by the scope of the EEOC investigation that could reasonably
be expected to grow out of the initial charges of discrimination."
Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 450 (5th Cir.
1983)(citing Gamble v. Birmingham S. R.R. Co., 514 F.2d 678, 689
(5th Cir. 1975); Sanchez, 431 F.2d at 466).
In line with this policy, EEOC regulations permit claimants to
amend their original EEOC charges in order to cure defects or to
"clarify

and

amplify"

their

original

allegations.

FTC

Credit

Practices Rule, 29 C.F.R. § 1601.12 (2014). When such an amendment
alleges additional acts which grow out of or relate to the subject
matter of the original charge, the amendments will "relate back to
the date the charge was first received," causing the amendment to
be considered timely and administratively exhausted even if filed

8

after the statute of limitations has run.5 29 C.F.R. § 1601.12.
Here, the two discriminatory acts alleged in Plaintiff's
original EEOC charge, filed in June 13, 2011, directly concern the
promotion of Rhonda Zimmer, rather than Plaintiff, to the Project
Lead position. The two complaints included in this original EEOC
charge were: (1) alleged discrimination by Children's in failing to
promote Plaintiff to the Project Team Lead position, and (2)
alleged retaliation by refusing to promote Plaintiff to this
position as a result of his previously filing a grievance with his
supervisor, Tammy Reites, in 2008. (Rec. Doc. 28-20). Plaintiff's
amendment to this charge, filed four months later, on November 9,
2011, sought to supplement his original EEOC charge with two
separate

complaints

for

retaliation

based

on

a

complaint

of

discrimination made in 2010 as well as his filing of the EEOC
charge in June, 2011. (Rec. Doc. 28-23). Contrary to Plaintiff's
allegations,

the

Court

finds

that

these

amended

claims

for

retaliation do not properly relate back to his original EEOC
charge.
Plaintiff's amendment seeks to include two entirely new claims
for retaliation, based largely on new facts which occurred after
the original EEOC charge was filed. Plaintiff contends that both
the amended complaint and the complaints included in the EEOC
5

Louisiana, as a deferral state, requires that a plaintiff file an EEOC
charge and institute proceedings with a state agency within 300 days of the
alleged unlawful employment practice. Conner v. La Dept. of Health and Hosps.,
247 F. App'x 480, 481 (5th Cir. 2007).

9

claims originate from "essentially the same" facts. (Rec. Doc. 28,
p. 21).

The Court finds that this is not the case. Plaintiff's

complaints contained in the original EEOC charge concern only
conduct of Plaintiff's supervisors in November, 2010, the date when
Plaintiff was denied promotion to the Project Team Lead position.
Specifically. the EEOC charge, despite being filed in June, 2011
makes no reference to alleged retaliation incurred by Plaintiff as
a result of his complaint filed with Middelstaedt in November 2010.
However, Plaintiff's amended complaint, including entirely new
claims of retaliation, concern only those events that occurred
after he was denied the promotion. When an amendment acts as an
"addition" rather than a true "amendment," by adding a separate
claim based on facts which are independent of the allegations
contained in the original EEOC charge, the "amendment" does not
properly relate back to the original charge. Hornsby v. Conoco,
Inc., 777 F.2d 243, 247 (5th Cir. 1985); See also Manning v.
Chevron Chemical Co., LLC, 332 F.3d 874, 878 (5th Cir. 2003)
("Generally amendments that raise a new legal theory do not 'relate
back' to an original charge of discrimination.").6 Plaintiff's
amendment, like that in Hornsby, should be more properly labeled as

6

Plaintiff has misinterpreted the holding of the Fifth Circuit in Hornsby,
stating that the Court found that the claimant's amendment asserting claims of
gender discrimination properly related back to her original EEOC charge which
asserted claims of racial discrimination. (Rec. Doc. 28, p. 21). However, the
Fifth Circuit clearly held that,"[because Hornsby] added a charge, and facts as
well, that are independent of the allegations in her first compliant . . . the
amended complaint does not properly relate back to the original." Hornsby, 777
F.2d at 247.

10

an addition to his EEOC charge, in that it alleges two entirely new
causes of action which rely on facts distinguishable from those
included in his original charge. As such, the claims of retaliation
asserted in Plaintiff's amendment do not properly relate back to
his original EEOC charge and fall outside the scope of Plaintiff's
civil action.7
Because

Plaintiff's

claims

for

retaliation

based

on

his

complaint of discrimination in 2010 and the filing of his EEOC
charge were never thoroughly investigated by the EEOC, as envisaged
by Title VII, the Court finds that Plaintiff failed to exhaust his
administrative remedies in this regard, and the Court does not have
jurisdiction to hear these claims. As such, the only two claims
that

are

properly

before

this

Court

are

those

contained

in

Plaintiff's EEOC charge for discriminatory failure to promote and
retaliatory failure to promote.
B. Discriminatory Failure to Promote Claim
Plaintiff first claims that Children's discriminated against
him by failing to promote him to the position of Project Team Lead
in

November,

2011

and

instead

promoting

Zimmer,

a

Caucasian

employee whom Plaintiff contends was significantly less qualified.
In order to survive summary judgment on a Title VII claim for

7
Because Plaintiff's claims of retaliation contained in his amendment do
not sufficiently relate back to his EEOC charge and fall outside the scope of his
civil action, it is unnecessary for the Court to address Children's argument
regarding whether the amendment lacks proper administrative requirements. (Rec.
Doc. 34, p. 3).

11

discrimination, a plaintiff must first present evidence of a prima
facie case of discrimination. Davis v. Dallas Area Rapid Transit,
383 F.3d 309, 317 (5th Cir. 2004). Once this prima facie case is
established,
"articulate

the
a

burden

legitimate,

then

switches

to

nondiscriminatory

the

employer

reason

for

to
the

underlying employment action." Id. If the defendant satisfies this
burden, the presumption of discrimination "disappears," and the
burden again switches to the plaintiff to show that the reason
given by the employer for the employment action was mere pretext
for racial discrimination. Id. (citing Byers v. Dallas Morning
News, Inc., 209 F.3d 419, 425 (5th Cir. 2000)). Despite the
numerous instances of apparent burden-shifting, "the ultimate
burden

of

persuading

the

trier

of

fact

that

the

defendant

intentionally discriminated against the plaintiff remains at all
times with the plaintiff." Texas Dept. Of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981).
In order for Plaintiff to satisfy his burden of establishing
a prima facie case of discriminatory failure to promote, he is
required to show: (1) that he belongs to a racial minority or a
protected class; (2) that he was qualified for the position sought;
(3) that he was rejected for the position; and (4) that the
employer promoted an applicant outside of the protected class.
McDonald v. Entergy Operations, Inc., 75 F. App'x 279, 280 (5th
Cir. 2003); Davis, 383 F.3d at 317. The only element in dispute by

12

the parties is whether Plaintiff was actually qualified for the
position of Project Team Lead.
At the prima facie stage of his case, a plaintiff must show
that he meets "objective promotion criteria" in order to show he is
qualified for the position sought. Oden v. Oktibbeha Cnty, Miss.,
246 F.3d 458, 469 (5th Cir. 2001). The Project Team Lead position,
as indicated by its job description, requires both extensive
knowledge in IT as well as significant managerial skill, including
duties to manage the entire analytics staff and communicate through
varying levels of supervision. (Rec. Doc. 28-25, p. 1). Plaintiff
contends that he was undoubtedly qualified for the position, as he
had been working as an analyst in the IT department with Children's
since 1999 and had received good reviews from his superiors during
this time. It is undisputed by the parties that Plaintiff was
skilled as an analyst and possessed sufficient qualifications in
IT.

What is in dispute, however, is Plaintiff's managerial skills

and his ability to communicate and lead others.
In

seeking

to

carry

his

burden

in

showing

that

he

was

qualified for the position of Project Team Lead, Plaintiff relies
heavily

on

his

previous

performance

reviews,

which

Plaintiff

contends are extremely successful. Throughout his years as an
analyst

(from

1998

to

2010),

the

performance

reviews

depict

Plaintiff as a successful and hard-working senior analyst, with
good team skills, going so far as to describe him as a "team

13

player."(See Rec. Docs. 28-4, 28–6, 28-7, 28-8, 28-9). Perilloux's
deposition also reflects this, noting that when a computer virus
attacked the hospital's computer system, Plaintiff "stayed and
helped until we were able to get it under control." (Rec. Doc. 285, p. 14). However, these reviews are in direct conflict with the
subsequent deposition testimony of Plaintiffs' supervisors, who
have testified that Plaintiff repeatedly had problems communicating
with other employees and departments within the hospital and failed
to successfully manage the small projects he was put in charge of
within the IT department. (Rec. Doc. 19-12, p. 6; Rec. Doc. 19-13,
p.

2).

As

such,

the

Court

finds

that

genuine

issues

remain

regarding whether Plaintiff had sufficient managerial skills for
the Project Team Lead position and whether he satisfied his prima
facie case of discrimination.
Even if Plaintiff is able to present a prima facie case of
discrimination, the Court must next consider whether Children's has
provided a legitimate, nondiscriminatory reason for its failure to
promote Plaintiff to the position of Project Team Lead, despite his
apparent qualifications. Children's may satisfy this burden by
"producing

evidence,

which

'taken

as

true,

would

permit

the

conclusion that there was a nondiscriminatory reason for the
adverse action.'" Price v. Fed. Express Corp., 283 F.3d 715, 720
(5th Cir. 2002) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 509 (1993)). Children's contends that its decision to promote

14

Zimmer rather than Plaintiff was not based in discrimination, but
was

made

simply

because

"she

was

determined

to

be

the

most

qualified person for the job." (Rec. Doc. 19-2, p. 15).
Zimmer has been employed by Children's for twenty-four (24)
years, initially working in the Human Resources Department of the
hospital before transferring to work in the IT department as a
systems analyst in 2004. (Rec. Doc. 28-14, p. 2,7). Additionally,
Zimmer received a bachelor's degree in business management. (Rec.
Doc. 28-14, p. 4). Both Zimmer's education as well as her extensive
experience in Human Resources are reflective of the management
skills required in the Project Team Lead position. Additionally,
Perilloux noted in her deposition that Zimmer had led one of the
biggest portions of the "Invision Project" within the IT department
in 2007, and also that she acted in a management role for all human
resources aspects of IT projects during her time employed with the
Human Resources department. (Rec. Doc. 28-5, p. 19). Moreover,
although Zimmer did not receive education in IT, her performance
within the department led to her promotion to the position of
Senior Analyst within only a few years of her transfer, which is
clearly reflective of her IT skill. While it appears as though
Plaintiff may have more extensive education and experience in the
realm

of

IT,

he

has

no

education

or

experience

regarding

management. As such, the Court finds that Children's decision to
hire Zimmer based on her superior qualifications, considering both

15

her

experience

in

management

and

IT,

is

a

legitimate,

non-

discriminatory reason.
Because

Children's

has

presented

a

legitimate,

nondiscriminatory reason for its decision not to promote Plaintiff,
Plaintiff must now be given a "'full and fair opportunity to
demonstrate' that [Children's] proffered reason is not true, but
instead is a pretext for intentional discrimination." Price, 283
F.3d at 720 (citing Hicks, 509 U.S. at 507-8). In order to satisfy
his

burden,

Plaintiff

must

produce

"substantial

evidence"

of

pretext to rebut any legitimate, non-discriminatory reason set
forth by Children's. Wallace v. Methodist Hosp. Sys., 271 F.3d 212,
220 (5th Cir. 2001) (citing Auguster v. Vermillion Parish Sch. Bd.,
249 F.3d 400, 402-403 (5th Cir. 2001)). Plaintiff may establish
pretext either by showing that a "discriminatory motive more
likely"

motivated

Children's

decision

or

that

Children's

explanation is "unworthy of credence." Wallace, 271 F.3d at 220
(citing Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d
581, 589 (5th Cir. 1998)).
The Court finds that in the summary judgment stage, Plaintiff
has failed to show that Children's reason for refusing to promote
him to Project Team Lead is mere pretext. Plaintiff first contends
that he was "objectively the better qualified candidate," and
repeatedly attempts to undermine Zimmer's qualifications, stating
that she has "no IT education and only 7 years total experience."

16

(Rec. Doc. 28, p. 24). However, the Court finds these attempts
unpersuasive. Plaintiff fails to note
Children's

for

twenty-four

(24)

that Zimmer has worked for

years,

making

her

extremely

knowledgeable regarding the procedures of the hospital. Moreover,
and more importantly, Zimmer has extensive experience and education
in management, one of the critical criteria for the Project Team
Lead position. Plaintiff has presented no evidence to show that he
has any substantial experience or education in management, and
instead, Children's has presented evidence to show that he has
encountered issues in the small management projects he was awarded
within

the

IT

department.8

In

attempting

to

prove

pretext,

Plaintiff also makes note that Children's failed to follow their
written policy of filling open positions, which required the
hospital to post all open positions on a bulletin board located
outside the Human Resources department. (Rec. Doc. 28-12, p. 2).
However, as admitted by Plaintiff, this policy was enacted in the
1980s and has not been substantially revised since. In fact,
Plaintiff admits that Children's completely abandoned this practice
in 2007. (Rec. Doc. 28-1, p.2). Plaintiff has failed to present any
evidence that Children's conduct in hiring Zimmer without a posting

8

A declaration by Perilloux states that on a number of instances, Plaintiff
failed to take direction, had repeated communication issues with other
individuals and departments within the hospital, and did not successfully manage
the small projects that he was put in charge of within the IT department. (Rec.
Doc. 19-12, p. 6). Moreover, Reites also noted in her declaration that Plaintiff
worked slowly, failed to meet deadlines, and was not flexible or receptive of
change. (Rec. Doc. 19-13, p. 2).

17

or

interview

violated

the

hospital's

current

policy

on

job

openings. Because Plaintiff has failed to proffer evidence to
objectively show that he was better qualified for the position of
Project Team Lead than Zimmer or that Children's violated its
policy of posting open positions in hiring Zimmer, the Court finds
that he has not carried his burden to prove that Children's
purported non-discriminatory reason was mere pretext.
Assuming that Plaintiff has presented a prima facie case of
discrimination, he has failed to rebut Children's legitimate, nondiscriminatory purpose of declining to promote Plaintiff as a lessqualified candidate, and as such, no material issue remains that
Plaintiff's claim for discriminatory failure to promote must fail.
C. Retaliatory Failure to Promote Claim
Plaintiff also claims that Children's refused to promote him
to the Team Lead Position as retaliation for his act of complaining
to Reites in 2008 regarding alleged unequal treatment based on his
race. In order to establish a prima facie case of retaliation, a
plaintiff in a Title VII action must show that: (1) he engaged in
a statutorily protected activity; (2) his employer took adverse
employment action against him; and (3) the protected activity and
the adverse action are causally linked. Smith v. Harvey, 265
F.App'x 197, 201 (5th Cir. 2008) (citing Baker v. Am. Airlines,
Inc., 430 F.3d 750, 754 (5th Cir. 2005)).
The Court finds that Plaintiff has failed to present a prima

18

facie case of retaliation. Specifically, Plaintiff has failed to
prove any type of causation between the allegedly adverse act of
refusing to promote him and Plaintiff's 2008 complaint to Reites.
A "but for" standard is required in order to prove causation,
requiring the plaintiff to show that the employer's adverse action
would not have been taken but for plaintiff's alleged protected
activity. Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir.
2005). In order to satisfy this burden, the plaintiff must present
either direct evidence of retaliation or "circumstantial evidence
creating a rebuttable presumption of retaliation." Calmes v. JP
Morgan Chase Bank, 943 F.Supp.2d 666, 684 (E.D. La. 2013) (Barbier,
J.) (quoting Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir.
2007)). Plaintiff has failed to present any evidence, either direct
or

circumstantial,

to

support

his

allegation

that

Children's

failure to promote was a result of his previous complaint to his
supervisor. In his Opposition, Plaintiff addresses only his claims
of retaliation based on the filing of his EEOC charge and the
complaint made to Human Resources in November, 2010, which, as
addressed above, are not properly before this Court. Mention of his
retaliation claim based on his 2008 complaint is made only in
passing, and no evidence is provided to support his allegations
that adverse action was taken against him or that this action was
causally linked to his prior complaint.

(Rec. Doc. 28, p. 25-26).

Because there is no material issue that Plaintiff has failed

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to establish a prima facie case of retaliation, summary judgment in
favor of Children's regarding this claim is proper.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Motion for Summary Judgment
(Rec. Doc. 38) is GRANTED.
IT IS FURTHER ORDERED that all of Plaintiff's claims against
Children's are hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 27th day of October, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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