Jones v. Sewerage & Water Board of New Orleans et al
Filing
63
ORDER AND REASONS granting in part and denying in part 50 Motion for Summary Judgment. Signed by Judge Helen G. Berrigan on 05/15/2015. (kac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CASSANDRA JONES
CIVIL ACTION
VERSUS
NO. 13‐6288
SEWERAGE AND WATER BOARD
SECTION ʺCʺ (3)
OF NEW ORLEANS, ET AL
ORDER AND REASONS
This matter comes before the Court on motion for summary judgment filed by the
defendants, Sewerage & Water Board of New Orleans and Marcia St. Martin (collectively
ʺS&WBʺ). Rec. Doc. 50. Having considered the memoranda of counsel, the record and
the law, the Court finds that summary judgment should be partially granted and
partially denied for the following reasons.
The plaintiff, Cassandra Jones (ʺJonesʺ), filed this suit under Title VII alleging
discrimination based on gender and retaliation on the part of her then‐and‐current
employer, S&WB. She was represented by counsel at the time she filed a questionnaire
with the EEOC on July 20, 2012, and a charge with the EEOC on November 12, 2012.
Rec. Docs. 50‐4 at 1–2, 50‐5 at 3–8. According to her charge, Jones claims sex
discrimination and retaliation between September 19, 2011 and October 11, 2011, when
she ʺwas harrassed by Steam Plant Engineers, assigned/reassigned to a position which
caused [her] to lose OT pay and shift‐pay (differential) as well as treatment different
than others.ʺ Rec. Doc. 50‐4 at 1. Jones states in the charge that she was told by a
Damon Adams, a S&WB supervisor, that she ʺwas too short, weak, and a womanʺ to do
the job of a Pumping Plant Operator (ʺPPOʺ), and she states that ʺa year ago, a former
employee was allowed to perform the same job under the same circumstances.ʺ Rec.
Doc. 50‐4 at 1. Both claims allegedly arose after she was transferred from her previous
position as a Boiler Room Operator (ʺBPOʺ) to train as a PPO at the Old River Station,
and subsequently transferred back to her position as a BPO.
Summary judgment
The court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). An issue is material if its resolution could affect the
outcome of the action, and a genuine issue of fact exists only “if the evidence is such that
a reasonable jury could return a verdict for the non‐moving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2502, 2510, 91 L.Ed.2d 202 (1986); Wyatt v. Hunt
Plywood Co., Inc., 297 F.3d 405, 408‐09 (5th Cir. 2002). When considering a motion for
summary judgment, “the court must view the facts in the light most favorable to the
non‐moving party and draw all reasonable inferences in its favor.” Deville v. Marcantel,
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567 F.3d 156, 163‐64 (5th Cir. 2009). Summary judgment cannot be defeated by
“conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008)
(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
The moving party bears the initial burden of “informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party meets its
initial burden, the burden shifts to the non‐moving party “to produce evidence or
designate specific facts showing the existence of a genuine issue for trial.” Engstrom v.
First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at
322‐24).
It is undisputed that during training Jones was unable to perform one of the tasks
required of a PPO without standing on a box and never received the PPO designation,
although she did work at the Old River Station for over a year before filing a grievance
with the S&WB and being transferred back to her position as a BPO. Jones admits that
she was told by S&WB supervisors that using the box was unsafe. Rec. Docs. 50‐5 at 6,
56‐3 at 13. It also appears that the use of ladders and boxes by a BPO in the boiler room
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is not considered unsafe and that the plaintiff is allowed to use them there. Rec. Doc. 56‐
3 at 26‐27. It is undisputed that both BPO and PPO positions pay the same salary and
that Jones remains employed as a BPO. Rec. Doc. 56‐3 at 17.
The defendants move for summary judgment based on a number of arguments:
that the EEOC charge is untimely, that Jones did not allege continuing or constructive
discharge in her EEOC charge, that Jones can not establish a prima facie case of sex
discrimination or retaliation, and that, in any event, the S&WB can establish
nondiscriminatory safety reasons for her failure to obtain the PPO designation. The
S&WB also argues that the transfer back to the BPO position was not adverse because
her pay is the same. Rec. Doc. 50‐3. In opposition, the Jones provides an array of
arguments, nearly all of which are supported solely by her statements provided to the
EEOC or in deposition. Those statements are often unclear, confusing or contradictory,
while many of the background and factual statements contained in the defense
memorandum are not supported by any proof.
Timeliness, continuing discrimation and constructive discharge
With regard to timeliness, the plaintiff argues that her EEOC questionnaire
qualifies as a charge. The Court agrees with the plaintiff on this issue, and notes that the
plaintiff checked one box on the questionnaire indicating ʺI want to file a charge of
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discrimination ...ʺ underneath the section identifying her attorney. Rec. Doc. 50‐5 at 6.
The Court finds that the EEOC charge is timely filed by virtue of the earlier filing of the
questionnaire.
At the same time, the plaintiff did not make a continuing discrimination claim in
her charge, nor does she present argument relative thereto in her opposition. The Court
finds that any claim for continuing discrimination has not been properly presented.
Jones argues constructive discharge is based on the unadorned argument that the
PPO position was a promotion. Rec. Doc. 55‐1 at 7–8. Although mentioned in the
complaint, constructive discharge is not mentioned in any filing with the EEOC. Again,
in construing the plaintiffʹs claims, the Court is mindful that the plaintiff admitted in the
questionnaire that she was represented by counsel at that relevant time. Rec. Doc. 50‐5
at 6. Constructive discharge requires proof that the employees working conditions were
so intolerable that a reasonable employee would feel compelled to resign. Dediol v. Best
Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir. 2011). The plaintiff must show ʺʹa greater
severity or pervasiveness or harassment thatn the minimum required to prove a hostile
work environment.ʹʺ Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998). The
following events are considered relevant to a finding of constructive discharge:
demotion, reduction in salary, reduction in job responsibility, reassignment to menial or
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degrading work, reassignment to work under a younger supervisor, badgering
harassment, or humilation by employer calculated to encourage the employeeʹs
resignation or offers of early retirement or continued employment on terms less
favorable than the employeeʹs former status. Brown v. Kinney Shoe Corp., 237 F.3d 556,
566 (5th Cir. 2011). Here, the plaintiff, represented by counsel, has produced no relevant
proof and, in any event, the plaintiff continues to be employed by the S&WB at the same
pay as the PPO position provides.
Title VII Sex Discrimination Claim
A plaintiff can prove intentional discrimination under Title VII with either direct
or circumstantial evidence of intentional discrimination. Laxton v. Gap Inc., 333 F.#d 572,
578 (5th Cir. 2003). Where circumstantial evidence is used, the three‐part framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), applies.
Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005). First, the plaintiff must
make out a prima facie case of employment discrimination by proving that she:
(1) is a member of a protected group; (2) was qualified for the position at issue; (3) was
discharged or suffered some adverse employment action by the employer; (4) was
replaced by someone outside her protected group or was treated less favorably than
other similarly situated employees outside the protected group. McCoy v. City of
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Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). If the plaintiff establishes a prima facie case,
a presumption of unlawful discrimination arises. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981). The defendant can rebut this presumption by
articulating a legitimate nondiscriminatory reason for its decision which, if successful,
shifts the burden back to the plaintiff to offer evidence sufficient to raise a genuine issue
of material fact that the employerʹs proffered reason is not true but instead is a pretext
for the real discriminatory purpose. McCoy, 492 F.3d at 557. The plaintiff meets this
burden either ʺthrough evidence of disparate treatment or by showing that the proffered
explanation is false or unworthy of credenceʺ and ʺnot the real reason for the adverse
employment action.ʺ Laxton, 530 U.S. at 143.
The S&WB argues that Jones can not satisfy the last three requirements for a
prima facie case because she could not perform a task required of a PPO in training,
received the same pay as a PPO during training and suffered no damages. Rec. Doc. 50‐
3 at 13. In reply, it seizes on the plaintiffʹs deposition testimony relative to the existence
of other female PPOs who did not ʺweigh 300 pounds,ʺ which the Court finds unclear in
terms of height. Rec. Doc. 56‐3 at 24. In reply memorandum, the S&WB argues facts
that the plaintiffʹs claims are not gender‐based, but size‐based, while providing no legal
argument relative to this distinction. It also presents, for the first time, affidavit
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evidence that the use of a box by a PPO is unsafe. Rec. Doc. 56‐4.
The Court finds the exact nature of the plaintiffʹs gender discrimination claim and
her arguments are unclear. Adding to this problem is the fact that much of the material
pertaining to this motion is derived from the plaintiffʹs deposition testimony, which
itself is often unclear. Rec. Doc. 56‐3. More fundamentally, it appears to the Court that
while the plaintiff assumes without discussion that height is gender‐related for purposes
of her claim of discriminatory PPO denial, the defense offers factual but no legal
challenge to that assumption.
At the same time, it undisputed that Jones was, in fact, transferred back to her
position as a BPO. That transfer is an employment action in partial satisfaction of the the
third McDonnell factor. No legal argument precluding a finding of adversity based on
salary alone is provided by the defense.
In addition, at times the plaintiff attributes to S&WB employees statements to the
direct effect that she was unable to perform the challenged task because she was a
woman. Those statements from S&WB employees remain unchallenged, although their
credibility would be seriously undermined with satisfactory proof that other PPOs were
women.
Most importantly, perhaps, the plaintiff claims that a former employee, who was
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male and short, used the box for some function either as a BPO or a PPO. Rec. Doc. 50‐4
at 1, 50‐5 at 4, 56‐3 at 27. That alleged fact is not addressed by the S&WB in its motion.
If a ʺsimilarly situatedʺ male was allowed to use the box as a PPO and the plaintiff was
not, the second and fourth McDonnell factors could be satisfied, pretext could be
supported and summary judgment would be precluded. While the plaintiffʹs testimony
alone may not support the claim at trial, relevant proof simply has not been offered for
purposes of summary judgment.
On summary judgment, the Court does not make credibility determinations or
weigh evidence and disregards evidence favorable to the moving party that the jury is
not required to believe. Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010). In
the absence of record proof to support its motion and based on this record, summary
judgment on this claim is inappropriate.
Title VII Retaliation Claim
Under Title VII it is also “an unlawful employment practice for an employer to
discriminate against [an] employee because . . . because [s]he has made a charge” against
the employer. 42 U.S.C. § 2000e‐3. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2525 (2013). Under this framework, Jones must first establish a prima facie case of
retaliation. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). To establish a
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prima facie case of retaliation, Jones must show that (1) she engaged in a protected
activity; (2) an adverse employment action occurred; and (3) a causal connection exists
between the protected activity and the adverse employment action. McCoy, 492 F.3d at
556‐57. The burden then shifts to the employer to state a legitimate, non‐retaliatory
reason for its action. Id. at 557. If the employer meets this burden, the plaintiff bears the
ultimate responsibility of proving that the defense’s given reason is only a pretext for the
real retaliatory purpose. Id. The Supreme Court clarified the standard of causation for
Title VII retaliation claims in Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
The Court held that a plaintiff making a § 2000e‐3 retaliation claim “must establish that
his or her protected activity was a but‐for cause of the alleged adverse action by the
employer.” Nassar, 133 S. Ct. at 2534. The plaintiff’s participation in the protected
activity must be the reason that the employer decided to act – in other words, the “desire
to retaliate [must be] the but‐for cause of the employer’s adverse decision.” See id. at
2527‐28 (emphasis added).
Although the plaintiff mentions a retaliation claim in her opposition, the facts
underlying the claim are not directly addressed in her opposition. It appears to the
Court that she may be claiming that the transfer back to the BPO position was retaliatory
and based on her September 19, 2011, grievance, in which she asked for an assistance
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from another employee (and not a box) to perform the PPO task she could not perform.
Rec. Doc. 50‐4 at 13–14. It is undisputed that on September 19, 2011, Jones filed a
grievance with the S&WB regarding alleging loss of wages and overtime because Bobby
Bolden, her supervisor at Old River Station, failed to offer her the opportunity to work
overtime, unfair treatment, lack of professional supervision and the need for assistance
in her job performance, alleging a ʺphysicalʺ need and apparently asking for an assistant.
Rec. Doc. 50‐4 at 12–14. Although there is an unauthenticated document alleging to be
part of the S&WB response to this grievance, it is not signed, the plaintiff testified that
she never saw the document, and both sides indicate that it contains irrelevant
information regarding a ʺKVA Roomʺ and perhaps another employee Rec. Docs. 50‐3 at
6, 50‐4 at 15–20, 56‐4 at 1–3, 56‐3 at 21–23. As such, basic facts relating to that hearing are
not provided in a proper form except when referenced in the plaintiffʹs unclear
deposition testimony. This leaves the record devoid of any evidence relevant to the
substance of that hearing, other than the undisputed fact than the plaintiff was
transferred back to her position as a BPO after filing the grievance. Rec. Doc. 56‐3 at
19–23.
Finally, there can be no dispute that the plaintiff is basing her suit on her height.
The Court notes that despite the apparent significance of the plaintiffʹs height to her
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claims, the Court was unable to uncover in the relevant any details pertaining to how
tall the plaintiff actually is. These kind of shortcomings do not lend themselves to
summary judgment.
Accordingly,
IT IS ORDERED that the motion for summary judgment filed by the Sewerage &
Water Board of New Orleans and Marcia St. Martin is GRANTED as to any claim for
continuing violation or constructive discharge and DENIED in all other respects. Rec.
Doc. 50. In denying summary judgment on the discrimination and retaliation claims, the
Court relies only on the record presented in conjunction with this motion, and does not
otherwise opine on whether such evidence would result in a verdict favorable to the
plaintiff at trial.
The parties are encouraged to consider amicable resolution.
New Orleans, Louisiana, this 15th day of May, 2015.
____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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