Prescott v. Board of Supervisors of the University of Louisiana System
Filing
67
ORDER & REASONS: ORDERED that 21 Motion for Summary Judgment is GRANTED in Part and DENIED in Part. GRANTED as to the plaintiffs race discrimination claim and retaliation claim based on Prescotts claim of reverse discrimination. FURTHER DENIED as to the plaintiffs retaliation re-hire claim and hostile work environment claim. Signed by Magistrate Judge Karen Wells Roby. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL PRESCOTT
CIVIL ACTION
VERSUS
NO:
BOARD OF SUPERVISORS OF THE
UNIVERSITY OF LOUISIANA SYSTEM
UNITED STATES MAGISTRATE JUDGE
KAREN WELLS ROBY
13-5984
ORDER & REASONS
Before the Court is a Motion for Summary Judgment (R. Doc. 21) filed by Defendant,
the Board of Supervisors of the University of Louisiana System ("Board"), seeking summary
judgment pursuant to Federal Rule of Civil Procedure 56, dismissing Plaintiff, Michael Prescott's
Title VII, 42 U.S.C. § 2000e, et seq., claims. See R. Doc. 21. The motion is opposed. See R. Doc.
30. It was heard on the briefs on August 13, 2014. See R. Doc. 28.
I.
Background
A.
Summary
Prescott, a white male, filed this lawsuit against his former employer the Board of
Supervisors of Southeastern University1 ("Board") a part of the of Louisiana System, pursuant to
Title VII of the Civil Rights Act, 42 U.S.C. 2000e ("Title VII"), for the alleged reverse racial
discrimination he experienced when he was investigated and ultimately terminated after
complaining about an African American subordinate, Angela Jones. See R. Doc. 1. Prescott
1
Southeastern University was founded in the 1920’s and is located in Hammond, Louisiana and is the state’s thirdlargest public university with over 15,000 students and more than 60 degree programs. Southeastern Louisiana
University (Sept. 24, 2014, 4:30 PM), http://www.southeastern.edu/about/index.html
alleges that he was ultimately labeled a racist due to his attempts to manage Angela Jones, an
“out of control” employee. See id. Prescott alleges that Angela Jones repeatedly made false
allegations against him and despite these allegations he was told that he had no authority to
discipline her. See id. Rather, Prescott alleges that he was investigated and later terminated,
which he suggests is the result of racially based favoritism. See id. Prescott alleges that Jones
was insubordinate and also lodged false allegations against him regarding threats of harm he
allegedly made in response to the complaints he made about her non-compliance with policy. See
id.
B.
Factual Background
Prescott, after retiring from the Jefferson Parish Sheriff's Office, was hired by
Southeastern Louisiana University (“SLU”) as a police officer in November 2003. See R. Doc.
30-3, p. 1. In 2005, Prescott was promoted to Director of the SLU Police Department, which is
an unclassified at-will position. Id.
As Director of the SLU Police Department, Prescott’s trusted administrative assistant was
Brandi Rogers, a white female. Rogers was responsible for managing the payroll for the police
department. In 2009, during a routine legislative audit, the auditor found that the university failed
to comply with the overtime payroll policy because Rogers had accumulated excessive amounts
of overtime. See R. Doc. 30-9, p. 5. As a result of the audit, Prescott was advised by Vice
President of Student Affairs Dr. Marvin Yates, an African American male, that he should no
longer allow Rogers to handle the department’s payroll. See R. Doc. 21-3 (Prescott Dep. 21:1722:11, June 3, 2014).
2
Following the audit, the police department’s payroll was designated to an individual in
the department to handle on a full time basis. See R. Doc. 21-3 (Prescott Dep. 17:9-16, June 3,
2014). The police department had difficulty retaining an employee to do payroll. See id. (Prescott
Dep. 17:18-21:10, June 3, 2014). In 2011, with the approval of Dr. Yates, Prescott reassigned the
payroll to Rogers, his administrative assistant. See id. (Prescott Dep. 22:16-23:16, June 3, 2014).
Dr. Yates instructed Prescott that Rogers was not to do her own payroll. See id. (Prescott Dep.
23:14-16, June 3, 2014).
In the fall of 2011, Angela Jones, an African American female, was a parking guard in
the SLU Police Department. Jones applied for a Police Officer 1-A position within the parking
division, but was not originally selected by Prescott. See R. Doc. 30-3, p. 6. A hiring board
appointed by Prescott and consisting of five Police Department employees reviewed the five
applicants for the Police Officer 1-A position and agreed to offer the position to Donald
Freeman, a white male with 15 years of law enforcement experience. Id. at 7.
The day after learning she did not get the job, Jones filed a grievance alleging she was not
promoted due to her race, African American.2 See R. Doc. 30-9. p. 14. After receiving Jones’
grievance, Prescott met with the university's Director of Human Resources, Kevin Brady, also a
white male, to discuss Jones’ grievance. See R. Doc. 21-6, pp. 1-2. Brady recommended that
Jones be promoted to resolve the grievance and also as a result of the affirmative action statistics
within the Police Department. Id.
2
Jones had previously applied for and been selected for a similar position prior to applying for the Police Officer 1A position. Jones had also been investigated for an altercation with Sgt. Chris Durham, a white male (R. Doc. 30-9,
p. 22), and received verbal warnings for abandoning her assigned work area during a football game without
permission (R. Doc. 30-10, p. 8).
3
Thereafter, seemingly unsatisfied, Prescott met with Dr. Yates, an African American
male, and the university's EEOC officer, Gene Pregeant, a white male.3 See R. Doc. 21-3
(Prescott Dep. 85:10-25, June 3, 2014). Dr. Yates and Pregeant also recommended that Prescott
promote Jones. Id. at 86. Prescott suggests that the decision to promote Jones, the African
American female, to the Police Officer 1-A position was really made by Dr. Yates, the African
American male.4 Id.
While the grievance process was occurring for Jones, Freeman decided to decline the
position because the salary offered was less than he earned at his previous job. See R. Doc. 21-6,
p. 2. In response to Freeman’s decision and in an effort to be a team a player, Prescott sent an
email to Human Resources indicating that he wanted to offer the Police Officer 1-A position to
Jones because she was his next choice after Freeman. See R. Doc. 30-9, p. 20; see also R. Doc.
21-3 (Prescott Dep. 82:15-16, June 3, 2014). However, Prescott stated that the position was to be
subject to her working initially on a probation period. See R. Doc. 30-9, p. 20.
Brady, the Director of Human Resources, advised Prescott that his treatment of Jones was
different than his treatment of two other employees who were promoted to permanent
promotions without being required to serve in a probationary capacity. Id. at 19. As a result,
Prescott’s request to place Jones on probationary status was denied and Prescott was instructed to
hire her as a permanent employee. See R. Doc. 21-6, p. 2.
3
SLU's administration is organized in a hierarchal system. At the top is the President Dr. John Crain, then Vice
President of Student Affairs Dr. Marvin Yates. See R. Doc. 30-19 (Yates Dep. 15:7-13, June 3, 2014). The Director
of the Police Department is under the direct supervision of Dr. Yates as the Vice President of Student Affairs. Id.
The Director of Human Resources, Kevin Brady, is under the direct supervision of the Vice President of Finance.
See R. Doc. 21-3 (Prescott Dep. 86:18-21, June 3, 2014). Gene Pregeant, the EEOC officer, reports directly to the
President. Id.
4
According to Prescott, Jones had refused to become POST certified because it involved weapons training. See R.
Doc. 21-3(Prescott Dep. 73:5-12, June 3, 2014); R. Doc. 30-32.
4
After acquiescing in the hiring of Jones, Prescott contends that he was subject to
harassment by his subordinate, Jones. He alleges that: (1) the week after she was hired she
refused to answer the phone when he called the department; (2) in March 2012 she decided not
to come to work; and (3) she left work without prior approval and without calling in sick in
violation of policy.
According to Prescott, after Jones was written up for her noncompliance with policy, she
lodged a complaint of harassment and retaliation against him and her immediate supervisor Sgt.
Kevin Knudsen, also a white male. See R. Doc. 30-9, p. 87. Jones thereafter began to complain to
different members of the department that she was afraid that Prescott was going to “send his
henchmen to flatten her tires,” “bomb her car like the Taliban,” that she “did not trust Prescott,”
“that other employees were allowed to take FMLA leave and she wasn’t,” and that “Prescott was
trying to poison her.” When Prescott reprimanded Jones for her noncompliance with policy, she
routinely filed a grievance. She went so far as to threaten to file a grievance because Sgt.
Knudsen hired another white male officer and in her view the department did not have enough
minority officers.
In April 2012, Jones filed an EEOC complaint alleging that Prescott harassed her based
upon her race. Shortly thereafter, Sgt. Knudsen requested that an investigation be opened to
address Jones’ allegation that he and Prescott were harassing her. See R. Doc. 30-9, p. 89.
On April 7, 2012, Jones under the alter ego of Mimi Templeton emailed Dr. Crain and
cc’d Dr. Yates declaring that Brandi Rogers, Prescott’s administrative assistant, stole $16,000
from an employee’s bank account and did so while at work and using a university computer. See
R. Doc. 21-3 (Prescott Dep. 137:1-21); see also R. Doc. 30-10, p. 39 (email from Mimi
5
Templeton). In the email, Jones stated that Prescott knew about Rogers theft but refused to take
action. Prescott later learned that Mimi Templeton was a character in a novel written by O’Neil
DeNoux.
In May 2012, while the challenges continued between Jones and Prescott, and after Dr.
Yates received the email from Jones’ alter ego Mimi Templeton, Dr. Yates directed his assistant,
Rebecca Johnson, to conduct a routine check of the overtime hours for the department’s
employees. During the routine check she noticed that there were very high overtime hours for the
weekends. See R. Doc. 21-5. Thereafter Dr. Yates called Prescott to meet with him in his office
on May 8, 2012. Prescott later confirmed after reviewing the records that the weekend hours
were unusually high such that he described them as “way abundant” and “horrific.” See R. Doc.
21-3 (Prescott Dep. 30:24-31:3 June 3, 2014). Dr. Yates advised Prescott that he became aware
of the overtime hours because his assistant Rebecca Johnson conducted a review of the payroll
and noticed the disparity. See id. (Prescott Dep. 153:23-25; 154:1-16, June 3, 2014). Prescott
thereafter had a departmental investigator review video from the weekend to determine if Rogers
actually worked and it was determined that she had not. See id. (Prescott Dep. 31:3-9, June 3,
2014).
On May 9, 2012, Jones filed another grievance with Human Resources alleging that since
she was promoted Prescott and Sgt. Knudsen were harassing her by repeatedly investigating her,
writing her up, and yelling at her in front of students. See R. Doc. 30-11, p. 70; see also R. Doc.
21-3 (Prescott Dep. 154:18-25, June 3, 2014). Jones filed two additional complaints with the
Safety Department and Health Department. See R. Doc. 21-3 (Prescott Dep. 155:1-15, June 3,
2014).
6
An investigation of Jones’ complaint was conducted regarding Sgt. Knudsen by
Lieutenant Patrick Gipson. See R. Doc. 30-10, p. 29. Lt. Gipson concluded that while Jones
believed what she was saying, that did not make it true. Id. at 36-37. He further concluded that
Knudsen had not harassed her and that instead he was simply doing his job. Id. at 37. The report
made no mention of Prescott.
As a result of Jones’ allegations that Prescott was going to kill her, Prescott sent an email
on July 12, 2012 to Human Resources Director Brady and cc’d Dr. Yates indicating that he
wanted to file a complaint against Jones. See R. Doc. 30-13, p. 32. Brady however, responded
that he did not think that there was a Violence in the Workplace issue because Jones had not
threatened Prescott nor did he think that it was an issue of discrimination against Prescott. Id.
While Jones’ complaints were being investigated, Dr. Crain, the university’s president
who was also emailed on the Templeton email, directed the university’s auditor to conduct an
investigation to determine if Rogers, Prescott’s administrative assistant, had committed payroll
fraud in light of the preliminary internal audit findings. See R. Doc. 21-4, p. 1-2. Rogers resigned
immediately after she learned of the audit. See R. Doc. 30-13, p. 16.
The audit investigation determined that she had fraudulently claimed overtime using the
missed punch process, which allowed her to complete a form requesting additional time and it
was determined that Prescott signed blank requests for time. See R. Doc. 21-5. In light of the
findings, Dr. Crain gave Prescott the option to resign or be terminated because his services were
no longer needed. See R. Doc. 21-4, p. 2. However, Prescott contends the Board’s reason for
terminating him was pre-textual. He contends that Jones through her alter ego Mimi Templeton
informed Dr. Yates about overtime pay irregularities which involved Rogers but that he didn’t
7
know about and was not involved. Nonetheless, his termination occurred on July 17, 2012 and it
was effective July 31, 2012. See R. Doc. 30-13, p. 41.
Less than three months after Prescott was terminated, he applied for a Police Officer 2
position in the SLU Police Department and was interviewed for the position but did not receive a
job offer. One year later, in October 2013, he applied again for the Police Officer 2 position but
his name was removed from the list of persons to be interviewed at the direction of the Human
Resources Director. Prescott applied a third time for the permanent Director position, the same
position he had been terminated from and he did not receive an interview. Prescott applied one
last time for a position with the department for the Police Officer 2 position but yet again he was
removed from the list of person to be interviewed.
After filing his EEOC Charge shortly after his termination, Prescott received a right to
sue letter from the EEOC on August 27, 2013. See R. Doc. 30-11, p. 63. Thereafter he filed the
subject action on September 30, 2013 alleging that: (1) the Board negligently permitted an open
and notorious hostile work environment based on race; (2) the Board intentionally and/or
negligently ignored his well founded complaints against Jones and treated her more favorably
because of her race; and (3) the Board terminated him in retaliation for complaining about the
discriminatory treatment he received. See R. Doc. 2, p. 7-8. Prescott contends that Jones and Dr.
Yates conspired together to create a hostile work environment which engulfed the entire police
department for over a six month period.
In response to Prescott’s complaint, the Board filed the subject motion seeking dismissal
of his claims because it had a legitimate, non-discriminatory reason to discharge Prescott that is
unrelated to the alleged racial discrimination and retaliation claims. See R. Doc. 21-1, p. 2.
8
Regarding the hostile work environment claim, the Board argues that Prescott cannot prove the
claim under objective or subjective standards. Id.
II.
Standard of Review
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 it would affect the outcome of the suit under the applicable
law. Fiess v. State Farm Lloyds, 392 F.3d 802, 807 (5th Cir.2004) (citing Anderson v. Liberty
Lobby, Inc. 477 U.S. 242, 248 (1986)).
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. UnitedHealthcare 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
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).
9
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.
III.
Analysis
A.
Race Discrimination
The Board contends that Prescott’s claim of racial discrimination should be dismissed
because he fails to state a prima facie case of discrimination and the Board had a legitimate nondiscriminatory reason for discharging him. The Board acknowledges that Prescott is (1) a
member of a protected class (2) was qualified for the position and (3) suffered an adverse
employment action. Where the parties disagree is on the fourth element required to establish a
racial discrimination claim, which is that similarly situated people outside of the protected class
were treated differently.
10
Prescott contends that he has established each element of his race discrimination claim.
Specifically as to the fourth element, Prescott contends that he satisfies this element as well. He
contends that he was treated less favorably than “African American employees” because the
university failed to investigate his allegations of insubordination, violations of company policy
and the unprofessional conduct of Angela Jones, the African American female.
Title VII has proscribed “not only overt discrimination but also practices that are fair in
form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S. Ct.
849, 853 (1971). If whereas here, a plaintiff cannot establish discrimination with direct evidence,
then a plaintiff must proceed under the indirect, burden-shifting method of proof established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). The McDonnell
Douglas pretext analysis places the initial burden on the plaintiff to establish a prima facie case
of discrimination. Olsen v. Marshall & Ilsley Corp., 267 F.3d 597, 600 (7th Cir. 2001). To state a
claim for race discrimination, a plaintiff initially must demonstrate: (1) he is a member of a
protected class; (2) he performed his job satisfactorily and was meeting his employer's legitimate
performance expectations; (3) he suffered an adverse employment action; and (4) was replaced
by someone outside his protected group or was treated less favorably than other similarly
situated employees outside the protected group. See McDonnell–Douglas, 411 U.S. at 802.
Only if a plaintiff successfully produces evidence of a prima facie case does the burden
then shift to the employer to articulate a legitimate, non-discriminatory reason for the
employment action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506–07, 113 S. Ct. 2742
(1993); see also Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dept. of Educ. ex rel. Univ.
of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003). However, “[t]he methods of presenting a prima
11
facie case are not fixed; they are flexible and depend to a large degree upon the employment
situation.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (finding that a
plaintiff's discrimination claim is not doomed simply because there is not a similarly situated
employee who may be used as a comparator).
In this case, Prescott alleges that the “similarly situated employee” who is not a member
of his class is Angela Jones and that she was treated more favorably even though she was his
subordinate. In a broad reading of Prescott’s claim he is alleging that because he and Jones were
both police officers, they both were entitled to notice of any investigation. While she was given
notice of his complaint against her, he was not given notice of the university’s investigation of
him which resulted in his termination.
Generally, a valid comparator is one who holds a similar position and reports to the same
supervisor. Bobo v. United Parcel Service, Inc., 665 F.3d 741, 114 (6th Cir. 2012); see also
Santillana v. Florida Stae Court System, 450 F. App’x 840 (11th Cir. 2012). Prescott does not
remotely suggest that he and Jones were functionally equal in terms of job duties. In fact Jones
was required to report to Prescott and Prescott was required to report to Dr. Yates.
Even if he had suggested that they were functionally equivalent, they were engaged in
different misconduct. Jones was allegedly insubordinate to Prescott and also allegedly filed false
claims against him. Prescott is alleged to have mismanaged his office and to have tacitly or
directly allowed his long term administrative assistant to commit payroll fraud through his lack
of supervision and despite an earlier warning by Dr. Yates. Jones therefore was not sufficiently
similar to Prescott to be used as a comparator. Therefore, unless Prescott can show that he was
replaced by someone outside the protected group, his race discrimination claim fails.
12
However, Prescott does not suggest that he was replaced by someone outside of the
protected group. To the contrary, the evidence shows that after Prescott's discharge, he was
replaced by Carmen Bray, a white male, who served as Interim Director of the Police
Department. Id. at 6. Harold Todd, also a white male, was the permanent replacement for the
position of Director of the Police Department. Id. As a result, Prescott’s claim of race
discrimination fails because he was not able to present a prima facie case of discrimination based
on his race, white.
B.
Retaliation
Prescott alleges that the Board retaliated against him for filing a complaint against Jones
for her outrageous behavior and accusations against him. See R. Doc. 2, p. 6. Prescott alleges that
he filed the complaint on July 13, 2012 and four days later on July 17, 2012 he was given the
option to resign or be terminated. Id. Prescott alleges that he attempted to file another complaint
on July 23, 2012, but the university refused to accept it. Id. Furthermore, Prescott claims that the
Board’s refusal to rehire him is tainted with retaliatory animus. See R. Doc. 30-2, p. 24.
The Board contends that Prescott’s claims of retaliation fails because he is not able to
establish that the only credible reason for discharging him was because they retaliated against
him for complaining that he was the victim of racial discrimination. The Board contends that its
decision to terminate Prescott was a result of his poor management of Rogers who committed
payroll fraud. The Board contends this reason is a clearly legitimate, nondiscriminatory reason
for his discharge and that it is not pre-textual.
A plaintiff establishes a prima facie case of retaliation by showing: (1) he engaged in a
protected activity; (2) an adverse employment action occurred; and (3) there was a causal link
13
between the protected activity and the adverse employment action. Hernandez v. Yellow Transp.,
Inc., 670 F.3d 644, 651-652 (5th Cir. 2012) (citing Taylor v. United Parcel Serv., Inc., 554 F.3d
510, 523 (5th Cir. 2008)).
Once the plaintiff makes a prima facie case, the burden then shifts to the defendant to
demonstrate a legitimate, nondiscriminatory purpose for the employment action. Pineda v.
United Parcel Ser., Inc., 360 F.3d 483, 486–87 (5th Cir. 2004). If the defendant meets this
burden, the burden shifts back to the plaintiff, who must prove that the employer’s stated reason
for the adverse action was merely a pretext for the real, discriminatory purpose. In retaliation
cases in the Fifth Circuit, where the defendant has proffered a nondiscriminatory purpose for the
adverse employment action, the plaintiff must show that “but for” the discriminatory purpose, he
would not have been terminated. Pineda, 360 F.3d at 486–87
The Board does not contest that Prescott meets the prima facie case required to state a
claim for retaliation, it does however suggest that it had a legitimate business reason for
terminating Prescott such that his retaliation claim fails. The Court notes that Prescott seems to
assert two claims for retaliation. First, he alleges that he was retaliated against for complaining
about being discriminated against and being subjected to a hostile environment. Second, he
complains about being denied the opportunity for re-employment.
The Board contends that it had a legitimate, non-discriminatory reason for his termination
and for its decision to not re-hire Prescott. According to the Board, Prescott failed to supervise
his long term administrative assistant despite having been warned some years earlier that she
tended to overbill on overtime hours in violation of the university’s policy.
14
1.
Termination Reason
Under the burden-shifting analysis, Prescott contends that the reason for his termination
was pre-textual. Even if the plaintiff has established the causal link required to make out a prima
facie case, where the defendants have offered a legitimate, nondiscriminatory reason for the
adverse action, the plaintiff “must show ‘a conflict in substantial evidence’ on the question of
whether the employer would not have taken the action ‘but for’ the protected activity.” Feist v.
La., Dept. of Justice, Office of the Atty. Gen., 730 F. 3d 450, 454–55 (5th Cir. 2013); Univ. of
Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct. 2517, 2534 (2013). “Evidence is
‘substantial’ if it is of such quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions.” Long v. Eastfield Coll., 88
F.3d 300, 308 (5th Cir. 1996).
Prescott suggests that the “cat’s paw theory” applies to the matter as President Dr. Crain
followed the biased recommendation of Dr. Yates who conspired with Jones to discriminate
against him. Under the “cat’s paw theory” of liability in Title VII race discrimination cases,
causation may be established if the plaintiff shows that the decision maker followed a biased
recommendation without independently investigating the complaint against the employee. See
Staub v. Proctor Hosp., ____U.S._____, 131 S.Ct.1186, 1994 (2011) (“We therefore hold that if
a supervisor performs an act motivated by [prohibited] animus that is intended by the supervisor
to cause an adverse employment action, and if that act is a proximate cause of the ultimate
employment action, then the employer is liable.”); see also Lawson v. KFH Indus., Inc., 767 F.
Supp. 2d 1233, 1245 (M.D. Ala. 2011). In this way, the recommender uses the decision maker as
a mere conduit, or cat’s paw, to give effect to the recommender’s discriminatory animus. Id.
15
In this case, the evidence shows that Dr. Crain testified that Prescott was fired due to a
failure of management in his unit that resulted in payroll fraud by his long serving and trusted
administrative assistant, Brandi Rogers. See R. Doc. 30-21 (Crain Dep., 35:18-21, July 29,
2014). Dr. Crain denied solely making the decision to terminate Prescott and confirmed that he
conferred with Dr. Yates. Id. at 35:21-24. Dr. Crain further acknowledged that recommendations
by the administration are generally accepted by the Board and that he could not recall an instance
in which a personnel recommendation was separately investigated by the Board. Id. at 24:8-20.
Prescott contends that at the time of his discharge he was told that the Board wanted to go
in a different direction. See R. Doc. 30-13, p. 41. The Human Resources Director, Kevin Brady
stated that he did not know the real reason Prescott was terminated although he was one of only
three people who had the authority to discipline classified employees. See R. Doc. 30-20 (Brady
Dep. 37:23-25, July 30, 2014).
In contrast, Dr. Yates testified that when he spoke with Human Resources and they
indicated that they gave Prescott the opportunity to resign because “payroll records were
involved and the university was defrauded out of about $36,000.” See R. Doc. 30-19 (Yates Dep.
44:7-17, March 31, 2014). Dr. Yates testified that he believed that Prescott allowed the funds to
be stolen by his administrative assistant on purpose. Id. (Yates Dep. 44:20-25, March 31, 2014).
He provided no further explanation for why he reached that conclusion.
Additionally, the evidence suggests that it was Dr. Yates who directed his administrative
assistant, Rebecca Johnson, following the audit in 2009 to check the overtime hours claimed by
employees of the Police Department. See R. Doc. 30-3. It is important to note that in May 2012
when Johnson conducted her periodic check, it was during the height of the discord between
16
Jones and Prescott, and after the receipt of the email from Jones’ alter ego Templeton accusing
Prescott and Rogers.
Thus, Brady who had the authority to terminate Prescott, did not know why he was
terminated and Dr. Crain relied upon advice from Dr. Yates in his decision to terminate Prescott.
Despite the facts as delineated above, the Court cannot say that but for Prescott filing a
complaint of discrimination against Jones, he would not have been terminated for failing to
manage his long term trusted administrative assistant who committed payroll fraud for the
second time while under his supervision. Reliance on the payroll fraud audit results as the
grounds for termination does not equate to retaliation where Prescott was advised in 2009 to
remove Rogers from handling the payroll. Therefore, the request for summary judgment
dismissal of the retaliation claim for termination is granted.
2. Failure to Rehire
Under the burden-shifting analysis, Prescott contends that the failure to re-hire him is in
fact pre-textual because he did not apply for the Director’s position but instead applied for a
Police Officer 2 position. As a Police Officer 2 he would not have had any subordinates and
would not have had to manage personnel. In contrast, he would only have had to use his police
officer skills which he has done successfully during his career. Prescott therefore suggests that
the Board has inferentially demonstrated retaliatory animus.
“Where the alleged discrimination resulted in a failure to rehire, a prima facie case
requires the plaintiff to show that: (1) [he] is a member of a protected class; (2) [he] sought and
was qualified for an available employment position; (3) [he] was rejected for that position; and
(4) the employer continued to seek applicants with the plaintiff's qualifications.” McCullough v.
17
Houston Cty. Tex., 297 F. App’x 282, 286 (5th Cir. 2008) (quoting LaPierre v. Benson Nissan,
Inc., 86 F.3d 444, 448 (5th Cir. 1996)). There is no question that Prescott was qualified for the
Police Officer 2 position, the parties do not dispute that he applied for the position, was rejected
and the employer continued to seek applicants.
The few cases that address rehiring issues deal with instances in which the employee was
not terminated for cause. See, e.g., McCullough, 297 F. App’x at 286 (involving a plaintiff who
quit her job when the new D.A. took office and argued that the new D.A. failed to rehire her);
Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1146 (5th Cir. 1981) (involving
a plaintiff that was not rehired after being laid off because of the seasonal nature of the seed
business); Brown v. Transit Mgmt. of Se. La., Inc., No. 10–2620, 2011 WL 5119017 (E.D. La.
Oct. 27, 2011) (involving a plaintiff who was not rehired after being laid off because Hurricane
Katrina destroyed the city's buses).
However, viewing the evidence of the failure to rehire in the light most favorable to the
plaintiff, the Court finds that he has presented sufficient evidence that the decision to not re-hire
him is pre-textual. The only reason Dr. Crain gave for not rehiring Prescott is that he was
terminated for failure to manage his subordinate. Yet Prescott was twice granted an interview
for the Police Officer 2 position and on two other occasions was removed from the applicant list
for consideration. The Police Officer 2 position is not a managerial position like Prescott’s
previous position as Director of the Police Department.
Thus, Prescott’s claim of retaliation for failure to re-hire survives as there is a question of
material fact. Further, the university does not have a written policy forbidding the reemployment
of employees terminated for cause. See Carter v. TCI Media Services, No. CA 3:97-CA-1096-R,
18
1998 WL 686777, at *8 (N.D. Tex. Sept. 29, 1998) (finding the employer had a legitimate reason
to not rehire the plaintiff because they had a company policy against rehiring employees
terminated for cause). Moreover, Dr. Yates testified that everybody is eligible to be reemployed
but maybe they did not want to rehire him due to his management lapse. See R. Doc. 30-19
(Yates Dep. 43: 20-23, March 23, 2014). In considering the evidence, the Court finds that there
is a material question of fact as to why Prescott was not rehired.
C.
Hostile Environment Claim
The Board also seeks the dismissal of Prescott’s hostile environment claim. It contends
that his claim does not meet the high standard for hostility required to prove his Title VII claim
of racial harassment. The Board argues that Jones had no authority to discharge or demote
Prescott or to otherwise determine his working condition and that she made no threats to his
physical safety. See R. Doc. 21-1. The Board contends that the essence of Prescott’s hostile work
environment claim was Jones’ use of the administrative process for filing grievances and an
EEOC charge against him which converted the environment to a hostile work place. Id at 21. The
Board contends that Prescott’s claim fails because he cannot prove that her complaints, which
were administrative in nature, affected a term, condition, or privilege of his employment. The
Board contends that Jones remained employed after Prescott was discharge for reasons
completely unrelated to either his conduct toward Jones or her conduct toward him. Id. at. 21.
Prescott contends that he suffered for months and that his experiences were humiliating
and physically intimidating at the hands of his subordinate Jones, which he contends Dr. Yates
had knowledge of. See R. Doc. 30-2, p. 11. Prescott contends that Jones repeatedly filed baseless
claims of discrimination, that she berated him and her other white supervisors almost daily, and
19
that she failed to follow instructions. Prescott contends that the baseless claims of discrimination
Jones filed against him caused the university’s representatives to question his decision-making
authority and question his authority. Id. at. 17.
Title VII is violated when a workplace is so permeated with discriminatory intimidation,
ridicule, and insult that is severe or pervasive enough to alter the conditions of the victim's
employment and create an abusive working environment. Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 118 S. Ct. 998 (1998). Title VII comes into play before the harassing
conduct leads to clinical mental illness because: (1) a discriminatorily abusive work
environment, even one that does not seriously affect an employee's psychological well-being,
can and often will detract from employees' job performance, discourage employees from
remaining on the job, or keep them from advancing in their careers; and (2) even without regard
to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive
that it created a work environment abusive to employees because of their race, gender, religion,
or national origin offends Title VII’s broad rule of workplace equality. Harris v. Forklift
Systems, Inc., 510 U.S. 17, 114 S. Ct. 367 (1993).
To assert a hostile environment claim, the plaintiff must plead facts that would tend to
show that the complained of conduct (1) is objectively severe or pervasive, that is, the conduct
creates an environment that a reasonable person would find hostile or abusive, (2) creates an
environment that the plaintiff subjectively perceives as hostile or abusive, and (3) creates such an
environment because of the plaintiff's sex or because of another characteristic protected by Title
VII. Generally, an employer with the ability to control its subordinates’ conduct will be held
directly liable for acts done pursuant to illegal practices when the employer had notice of the
20
illegal practices but chose to do nothing about it. See U.S. v. City of Yonkers, 96 F.3d 600, 613–
14 (2d Cir. 1996).
“An employer may be held liable for harassment of one employee by a fellow employee
(a non-supervisor) if the employer knew or should have known of the harassment and failed to
implement prompt and appropriate corrective action.” See Curry v. District of Columbia, 195 F.
3d 654, 659 (D.C. Cir. 1999). In Lyles v. District of Columbia, 2014 WL 644977 (D.D.C. 2014),
a subordinate, like Jones, was accused of harassing a supervisor. The court found that in the
context subordinate-to-supervisor harassment, the employer may be held liable for the
harassment of a supervisor by a subordinate if the employer knew or should have known of the
harassment and failed to implement prompt and appropriate action; but an employer would not
be liable for the harassment of a supervisor by a subordinate-harasser, where the supervisor had
the ability to remove or reprimand the subordinate-harasser.
Neither the Supreme Court nor the Fifth Circuit has had the occasion to decide whether
an employer can be vicariously liable when a subordinate employee harasses his or her
supervisor. See, e.g., Parada v. Great Plains Intern. Of Sioux City, Inc., 483 F. Supp. 2d 777,
796 n.6 (N.D. Iowa 2007) (explaining in dicta that the court cannot conclude that an alleged
harasser’s status dictates whether they can engage in actionable harassment); Mingo v. Roadway
Express, Inc., 135 F. Supp. 2d 884, 891, 898 (N.D. Ill. 2001) ( noting that the plaintiff, a female
supervisor, “never reprimanded, counseled or disciplined any of the dock workers whom she
supervised for their offensive comments,” but ultimately finding that there was a genuine issue
of material fact as to whether her employer had notice of her sexual harassment allegations and
failed to do something about it); Lewis v. Sugar Creek Stores, Inc., No. 96-CV-0100E(H), 1996
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WL 685730, at *2 ( W.D. N.Y. Nov. 25, 1996) ( stating that it is not true that as “as a matter of
law, an employee cannot bring a hostile environment claim where the conduct that created the
hostile environment was committed by the employee's subordinate(s)” and that it makes a
difference at the summary judgment state, whether the supervisor-plaintiff had the authority to
stop the harassment by her subordinate and failed to do so).
In considering Prescott’s claim, the Court finds that it is true that Jones was more than
difficult to manage, but there is no testimony by Prescott that due to having to deal with her false
statements about him that he was not able to perform his job or meet the legitimate employment
expectations of the university. Hatchett v. Shinseki, 957 F. Supp. 2d 960 (S.D. Ind. 2013).
Regardless, the evidence shows that it is reasonable to conclude that Jones’ harassment of
Prescott led to his termination. The record shows that on April 7, 2012, Angela Jones under the
alter ego of Mimi Templeton emailed Dr. Crain and cc’d Dr. Yates advising them that Prescott’s
administrative assistant not only stole $16,000 from an employee’s bank account, but did so
while at work and using a university computer and that Prescott knew and refused to take action.
See R. Doc. 21-3 (Prescott Dep. 137:1-21); R. Doc. 30-10, p. 39 (email from Mimi Templeton).
Thereafter on May 8, 2012, Prescott was called to Dr. Yates’ office and he noticed a
folder with the names Rogers and Gomez and with numbers that appeared to be hours submitted
for work allegedly performed. During Prescott’s meeting with Dr. Yates, Dr. Yates inquired of
the overtime hours and noted that they appeared to be abundant. Prescott responded that he
would have to conduct his own investigation because he didn’t know off the top of his head
whether they were for hours actually worked or were fictitious. Dr. Yates advised Prescott that
he became aware of the overtime hours because his assistant Rebecca Johnson conducted a
22
review of the payroll and noticed the disparity. See R. Doc. 21-3 (Prescott Dep. 153:23-25;
154:1-16). He did not indicate that Jones was in fact the original source of his information.
The next day, Angela Jones filed a grievance against Prescott complaining that since she
was hired for the position he had harassed her, wrote her up, investigated her and yelled at her in
front of students. Id. at 154:18-25. According to Prescott, Jones filed the same complaint, not
only with Human Resources, but with the Safety and Health Departments. Id. at 155:1-15.
Prescott learning about her complaints requested an investigation of Jones’ grievances, but on
May 9, 2012 the internal auditor began an investigation of three years of paper work that Rogers
submitted for payment. On June 4, 2012, Rogers learned of the investigation and resigned her
position as Administrative Supervisor 2. On July 6, 2012, Jones emailed Prescott acknowledging
that she was Mimi and that she reported Rogers’s theft and that Prescott was allowing Rogers to
steal time and money from the university. See R. Doc. 30-13, p. 16. Eleven days later Prescott
was terminated.
It is reasonable to conclude that as of April 7, 2012, when the email was sent to Dr. Crain
and Dr. Yates from Jones’ alter ego, that Dr. Yates’ eyes were then set on Prescott and not just
Rogers because the letter clearly accuses him of participating in Rogers’ fraud. Further Dr. Yates
testified that he believed that Prescott allowed this to occur on purpose.
Considering the evidence of record and the clear contempt that Jones had for Prescott
coupled with the inaction of the administration regarding Prescott’s complaint of Jones’
insubordination, the Court finds that there are questions of material fact of Prescott’s claim of
hostile work environment, therefore the request to dismiss the hostile work environment is
denied.
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IV.
Conclusion
IT IS ORDERED that Defendant, Board of Supervisors of the University of Louisiana
System (ADefendant@) Motion for Summary Judgment (R. Doc. 21) is GRANTED in Part
and DENIED in part.
IT IS GRANTED as to the plaintiff’s race discrimination claim and retaliation claim
based on Prescott’s claim of reverse discrimination.
IT IS FURTHER DENIED as to the plaintiff’s retaliation re-hire claim and hostile work
environment claim.
New Orleans, Louisiana, this 26th day of September 2014
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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