Rome-Bienemy v Children's Hospital

Filing 91

ORDER denying 43 Motion in Limine; granting 44 Motion for Summary Judgment; granting 45 Motion for Summary Judgment; denying 55 Motion in Limine; denying 56 Motion for Sanctions; denying 77 Motion in Limine; denying 78 Motion in Limine. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELLY ROME-BIENEMY AND NICOLE
RILEY

CIVIL ACTION

VERSUS

NO: 14-1020

CHILDREN'S HOSPITAL

SECTION: "A" (2)

ORDER AND REASONS
The following dispositive motions are before the Court: Motion for Summary
Judgment Regarding the Claims of Plaintiff Kelly Rome-Bienemy (Rec. Doc. 44), and
Motion for Summary Judgment Regarding the Claims of Plaintiff Nicole Riley (Rec.
Doc. 45) filed by defendant Children’s Hospital, Inc. Both motions are opposed. In orders
dated August 24, 2015 and September 9, 2015, the Court cancelled the jury trial scheduled
to commence on September 14, 2015, pending the ruling on the foregoing motions. (Rec.
Docs. 80 & 88). For the reasons that follow, the motion against Rome is GRANTED, and the
motion against Riley is GRANTED. 1
I.

Background

Plaintiffs Kelly Rome-Bienemy (“Rome”) and Nicole Riley (“Riley”) bring this action
against their former employer, Children’s Hospital, Inc. (“Children’s”), alleging race
discrimination (hostile work environment), retaliation, defamation, and intentional infliction of

1

The parties have also filed numerous motions in limine (Rec. Docs. 43, 55, 77, 78), and
Children’s has filed a motion for sanctions (Rec. Doc. 56). Two of the motions relate to unlawful
recordings of Children’s hospital employees in the workplace, and Plaintiffs alleged involvement
in making those recordings. The implications of those recordings are addressed later in this
opinion.
Page 1 of 28

emotional distress. Children’s provides pediatric medical services and is located in New
Orleans, Louisiana. Plaintiffs are African-American and worked for Children’s as medical
secretaries. Both plaintiffs were terminated from their employment on May 26, 2014.
Children’s now moves for summary judgment on all of Plaintiffs’ claims. The various
causes of action and the evidence of record pertaining to them, as well as the parties’
respective arguments with respect to each cause of action, are discussed in greater detail
below.
II.

Discussion

Summary judgment is appropriate only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any," when viewed in
the light most favorable to the non-movant, "show that there is no genuine issue as to any
material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material
fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable
inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the
moving party has initially shown "that there is an absence of evidence to support the nonmoving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant
must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing
Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587
(1986)). Conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately substitute for
specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097

Page 2 of 28

(5th Cir. 1993)).
When faced with a well-supported motion for summary judgment, Rule 56 places the
burden on the non-movant to designate the specific facts in the record that create genuine
issues precluding summary judgment. Jones .v Sheehan, Young, & Culp, P.C., 82 F.3d
1334, 1338 (5th Cir. 1996). The district court has no duty to survey the entire record in
search of evidence to support a non-movant’s position. 2 Id. (citing Forsyth v. Barr, 19 F.3d
1527, 1537 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.
1988)).
Kelly Rome-Bienemy’s Claims
Rome was employed as a medical secretary in the orthopedics department at
Children’s from September 17, 2012, until her termination on May 26, 2014. Rome contends
that she was subjected to a hostile work environment based on her race, discharged in
retaliation for complaining of discrimination, subjected to intentional infliction of emotional
distress, and slandered by Children’s in its response to her application for unemployment
benefits. Children’s moves for summary judgment dismissing all of Rome’s claims.
Children’s submits that no genuine issue exists as to any material fact entitling Children’s to
judgment as a matter of law.

2

The Court stresses this last point because Plaintiffs jointly submitted nearly 600 pages of
exhibits in opposition to Defendant’s summary judgment motions. The binder that Plaintiff’s
counsel provided to the Court in response to its hard-copy order (Rec. Doc. 79) is remarkably
well-assembled given the number of exhibits. But Plaintiffs’ arguments in opposition do not refer
to or incorporate all of the exhibits, and many of them constitute patently inadmissible hearsay
that are not helpful. The Court considers any arguments based on exhibits that were not
expressly referred to in briefing as waived, and the Court will not entertain motions for
reconsideration based on any exhibits whose significance the Court might have overlooked
while reviewing Plaintiffs’ voluminous submission.
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1.

Retaliatory Discharge

Children’s fired Rome on May 26, 2014, which was shortly after Rome and Riley
jointly filed the instant lawsuit on May 3, 2014. Rome moved to amend her complaint on
February 2, 2015, to include inter alia a claim of retaliatory discharge. In her amended
complaint, Rome avers that Children’s terminated her in retaliation for “protected activities:
filing prior EEOC charges and making verbal complaints of race discrimination to
management . . . .” (Rec. Doc. 30, First Amend. Comp ¶ 18(a)). No other acts of retaliation
are alleged. Children’s contends that Rome was terminated for legitimate business reasons
and that her complaints of racial discrimination played no part in the decision. Children’s
argues that Rome cannot establish but for causation or pretext under the applicable Title VII
standards.
Title VII’s anti-retaliation provision states in relevant part:
It shall be an unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has opposed any practice made
an unlawful employment practice by this subchapter, or because he has made
a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
42 U.S.C.A. § 2000e-3(a) (West 2012).
Title VII claims of unlawful retaliation based on circumstantial evidence are analyzed
under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). 3 Vargas v. McHugh, No. 15-50544, — Fed. Appx. —, 2015 WL 6774016,
*3 (5th Cir. Nov. 3, 2015) (per curiam). First the plaintiff must establish a prima facie case of

3

In her supplemental memorandum Rome acknowledges that her retaliation claim is based on
circumstantial evidence. (Rec. Doc. 63, Supp. Oppo. at 4). Direct evidence would be evidence,
which if believed, proves the fact without inference or presumption. Vargas, 2015 WL 6774016,
at n.2 (quoting Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 992 (5th Cir. 2005)). Rome
does not have direct evidence of retaliation, which is common in Title VII cases.
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retaliation by showing that 1) she participated in an activity protected under the statute; 2)
her employer took an adverse employment action against her; and 3) a causal connection
exists between the protected activity and the adverse action. Feist v. La. Dep’t of Justice,
730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy v. City of Shreveport, 492 F.3d 551, 556-57
(5th Cir. 2007)). If the plaintiff makes a prima facie showing of retaliation, the burden shifts to
the employer to state a legitimate, non-retaliatory reason for its decision. Id. (quoting
LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007)). Finally, the burden shifts back
to the plaintiff to prove that the employer’s proffered reasons are a pretext for retaliation. Id.
The employee meets this burden by showing that the adverse action would not have
occurred “but for” the employer’s retaliatory motive. Id. (citing Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2533 (2013)).
The Supreme Court’s Nassar decision clarifies that a plaintiff asserting a Title VII
retaliation claim must meet a higher standard of causation than a plaintiff claiming Title VII
discrimination. Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir. 2015) (quoting
Nassar, 133 S. Ct. at 2534). Thus, mere proof that retaliation was a “motivating factor” for
an adverse employment action will not suffice. Rather, the plaintiff must establish that her
protected activity was a “but for” cause of the alleged adverse action by the employer. Id. In
order to avoid summary judgment, 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, 730 F.3d at 454 (quoting Long v. Eastfield College, 88 F.3d 300,
308 (5th Cir. 1996)).
The first step in the analysis is Rome’s prima facie case of retaliatory discharge. On
February 7, 2013, Rome met with Doug Mittelstaedt, the Vice President of Human

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Resources, to complain about co-worker Gretchen Dondis’s conduct. 4 (Rec. Doc. 44-1, Def.
Mat. Fact #11). According to her original complaint, Rome filed an EEOC charge on
December 13, 2013, pertaining to race discrimination. (Rec. Doc. 1, Comp. ¶ 2). The instant
lawsuit was filed on May 3, 2014. Clearly, Rome engaged in protected activities at various
times. 5
Children’s fired Rome on May 26, 2014. The termination letter states that Rome was
fired based on inter alia a “recent investigation of the audio recording of Hospital staff.”
(Rec. Doc. 44-5 Exh. F-5, Mittelstaedt letter). Rome clearly suffered an adverse
employment action. Therefore, the first two steps in Rome’s prima facie case for retaliatory
discharge are satisfied. 6
Next, Rome must establish a causal connection between the protected activity and
her termination. Rome’s entire causation analysis is premised on the theory of temporal

4

In her opposition Rome purports to “dispute” most of Defendant’s Material Facts, including
Material Fact #11, without explanation. (Rec. Doc. 63-1, Rome’s Disp. Fact #2). As Children’s
points out in its reply, this is not an acceptable mechanism for controverting Children’s’
submission. (Rec. Doc. 73, Reply at 1).
5

The February 7, 2013 meeting with Mittelstaedt is not Title VII protected activity because the
workplace hostility that Rome was complaining about was not racially motivated. Rome went to
Mittelstaedt to complain about ordinary workplace tensions between herself and coworker
Gretchen Dondis. At first Rome considered Dondis’s criticism of President Obama to be racial in
nature because he is black but Rome conceded upon further reflection that the criticism was not
race-related. There is no dispute regarding what took place during this meeting with Mittelstaedt
because Rome covertly recorded it and Children’s later discovered the recording on her work
computer. (Rec. Doc. 44-6, Mittelstaedt decl. ¶ 5 & manual CD attachment).
6

In her opposition Rome alludes to other discipline that she received after she filed her first
EEOC complaint. (Rec. Doc. 63, Rome Oppo. at 3). The only claim for retaliation that Rome
pleaded in her amended complaint was retaliatory discharge. Rome confirms in her opposition
that “[i]t was not until the filing of the lawsuit that [Children’s] started taking adverse employment
actions” against her. (Id. at 2). Therefore, the Court restricts its “retaliation” analysis to
retaliatory discharge.
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proximity, i.e., that the federal lawsuit was filed on May 3, 2014, Children’s terminated her
shortly thereafter on May 26, 2014, and that the closeness in time of these two events
implies a cause and effect relationship. To establish a prima facie case, the plaintiff may
rely on temporal proximity between protected activity and an adverse employment action
only if the two are “very close” in time. Zamora, 798 F.3d at 335 (citing Clark Cty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273-74 (2001)). Sufficiency of “closeness” is not governed by
bright line rules because a time span that suffices in a case with other circumstantial
evidence of retaliation may not suffice when the plaintiff has no other evidence of retaliation.
See Feist, 730 F.3d at 454-55 (citing Evans v. Houston, 246 F.3d 344, 354 (5th Cir. 2001);
Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002)). Courts in this circuit
weigh temporal proximity as part of “the entire calculation” of whether the employee has
shown a causal connection between the protected activity and the adverse employment
action. Hague v. Univ. of Tex. Health Science Ctr., 560 Fed. Appx. 328, 334 n.7 (5th Cir.
2014) (unpublished) (quoting Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992)).
Rome’s argument regarding temporal proximity is that Children’s knew about the
taped recordings in February 2014, yet the first disciplinary act pertaining to the recordings
(administrative leave without pay preceding termination), came on May 16, 2014, which was
13 days after she filed suit. Then a little more than a week later she was terminated. Rome
suggests that a clear inference of retaliation can be drawn from this “very close” timeline. 7

7

Mittelstaedt is the supervisor who fired Rome. Plaintiffs have never attempted to posit that
anyone else at Children’s was the decision-maker on the termination decision. Obviously, the
fact that a lawsuit is filed does not ipso facto mean that the decision-maker knew about it when
he acted. The Court assumes that Mittelstaedt is not Children’s registered agent for service of
process. To establish the causation prong of a retaliation claim the employee should
demonstrate that the decision-maker knew about the employee’s protected activity. Manning v.
Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003) (citing Medina v. Ramsey Steel Co., 238
Page 7 of 28

The filing of the lawsuit and the termination were “very close” in time. As to Plaintiffs’
suggestion that Children’s knew about the audio recordings in February 2014, Children’s
engaged Avansic, Inc. to examine Rome’s computer drive for recordings in February 2014.
The Court has been unable to discern from the record, including from the parties’ briefing on
the motion in limine pertaining to Avansic’s expert report (Rec. Docs. 43 & 53), exactly
when Avansic found a file entitled “Happy Audios” on Rome’s computer and provided it to
Children’s. The Happy Audios file is significant because it contained definitive proof that
Rome had not only been recording conversations with other staff in violation of the
hospital’s policy but also that she had lied to management on several occasions.
Mittelstaedt did state in his declaration that it took him several weekends to review about 40
hours of recordings, and it was after doing so that he knew definitively that Rome had been
lying to him. (Rec. Doc. 44-5 Exh. F, Mittelstaedt decl. ¶¶ 33, 43). On May 16, 2014,
Mittelstaedt attempted to question Rome about the recordings but she refused to cooperate.
(Id. ¶ 44). The Court accepts Rome’s prima facie case based on temporal proximity. 8

F.3d 674, 684 (5th Cir. 2001)). After all, “[i]f an employer is unaware of an employee’s protected
conduct at the time of the adverse employment action, the employer plainly could not have
retaliated against the employee based on that conduct.” Chaney v. New Orleans Pub. Fac.
Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999).
The court record does not contain a return of service document so the Court has no
information about when Children’s was actually served with the lawsuit or who accepted service
for Children’s, much less when Mittelstaedt actually learned about it. Counsel for Children’s did
move for an extension of time to answer on May 28, 2014 (Rec. Doc. 4), so someone at
Children’s was served with Plaintiffs’ complaint at some point before that date. The Court will
give Rome the benefit of the doubt on this point.
8

The Fifth Circuit has not held that temporal proximity alone suffices for causation. See
Zamora, 798 F.3d at 335. And in the aftermath of the Supreme Court’s Nassar decision, which
increased the requisite nexus between the supervisor’s action and the adverse employment
action, the Court surmises that the cases, if any, where temporal proximity alone will suffice are
going to be few and far between. Courts have taken differing positions on how Nassar affects
the prima facie analysis in Title VII retaliation cases. Compare Foster v. Univ. of Maryland, 787
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The next step of the McDonnell Douglas framework falls to Children’s to produce its
legitimate, non-discriminatory reason for terminating Rome. According to Mittelstaedt’s
letter, Rome was terminated based on the recent investigation of the audio recordings of
hospital staff. (Rec. Doc. 44-2 Exh. F-5, Mittelstaedt letter). Mittelstaedt explains that
recordings were found on Rome’s computer even though she had denied earlier in the year
that her only copies of the recordings were stolen. Mittelstaedt had asked Rome for copies
of the recordings that she gave to the EEOC so that he could review them. Mittelstaedt also
cites to Rome’s recordings of conversations that she had with him, and other Children’s
personnel which was done in violation of the hospital’s policies. Mittelstaedt points out that
Rome had lied to him about making the recordings, and that one of the recordings actually
exposed a false statement that Rome had made about a February 7, 2013 meeting with
Mittelstaedt. (Id.). Rome had accused Mittelstaedt of denying that the term “monkey” was
racist at that meeting. As it turns out, this never came up at all during the meeting.
In addition to the times that Rome covertly recorded her own conversations with
hospital staff in violation of hospital policy, and then lied about it to management, this case
also involves non-consensual recordings of other coworkers’ private conversations where
Rome was not a participant. These recordings have serious implications because Louisiana
law makes it unlawful to intercept any oral communication unless the person acting is a

F.3d 243 (2015) with Donald v. UAB Hosp. Mgmt., LLC, No. 14-727, 2015 WL 3952307 (N.D.
Ala. June 29, 2015). The Court is not overly concerned with these legal issues because
regardless of how stringently or deferentially the Court judges Rome’s prima facie case, the
Court is persuaded that she cannot defeat summary judgment as to pretext and that she cannot
establish “but for” causation. The Court’s inclination was to bypass the prima facie analysis and
proceed directly to the issue of pretext but last year in the unpublished Hague v. University of
Texas Health Science Center decision cited above, two circuit judges on the panel concluded
that the district judge erred in proceeding in that manner.
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party to the communication or where one of the participants consents. La. R.S. §§
15:1303(A)(1), (C)(4). It is undisputed that the participants did not consent because
Mittelstaedt followed up with them to confirm this. Rome denied (and continues to deny) any
knowledge regarding who made those illegal recordings, but Mittelstaedt questioned the
veracity of her denial when the Happy Audios file was found on her computer. He expressly
mentions this as one of the grounds for Rome’s termination. (Id.).
Children’s has produced several legitimate, non-discriminatory reasons for the
decision to terminate Rome. The burden now shifts to Rome to prove that Children’s’
proffered reasons are a pretext for retaliation. Rome must rebut each non-retaliatory reason
articulated by Children’s. McCoy, 492 F.2d at 557 (citing Laxton v. Gap, Inc., 333 F.3d 572,
578 (5th Cir. 2003)). To meet this burden Rome must show that Children’s would not have
fired her “but for” her having filed the instant lawsuit. The Court is persuaded that Rome has
not created an issue of fact as to either pretext or causation.
It is undisputed that Children’s had an express policy prohibiting employees from
recording other employees without their “specific permission.” (Rec. Doc. 44-5 Exh. F-6,
Children’s Hosp. Operating Polices/Procedures). Rome violated this policy on more than
one occasion (Rec. Doc. 44-2 Exh. C, Rome depo at 18), and then lied to Mittelstaedt about
it. (Id. at 80-81). The Court has listened to the audio of the meeting between Mittelstaedt
and Rome that took place on February 7, 2013. This recording, which was not discovered
until Avansic found the Happy Audios file on Rome’s computer, is significant because it
reveals that Rome was lying when she later accused Mittelstaedt of making racially
inappropriate comments during the meeting. The Court also listened to a recording of a
meeting between Mittelstaedt, Rome, and another staff member on January 24, 2014. This

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recording is significant for two reasons. First, when during that meeting Mittelstaedt
confronted Rome about her misrepresentation regarding his comments at the February 7,
2013 meeting, she vociferously disagreed with him and maintained that her characterization
of the meeting was the correct one. Rome knew this was untrue because unbeknownst to
anyone else, she had recorded the meeting so she knew exactly what had been discussed.
Second, Mittelstaedt prefaced his remarks at the January 24, 2014 meeting with a warning
that the meeting was part of an official investigation regarding other audio files that had
surfaced, and that lying to him would be grounds for discharge. At the conclusion of that
meeting, Mittelstaedt asked Rome if she was recording that meeting and she told him “no.”
This of course was another lie.
The termination letter also explains that Mittelstaedt believed that Rome was
involved in making the recordings that appeared to violate Louisiana law, and that she had
been dishonest about her involvement in them.
According to Mittelstaedt, on January 6, 2014, Dr. Stephen Heinrich, who was one of
the physicians in Rome’s department, gave him a recording of a conversation between two
other medical secretaries, Dorothy Phillips and Judy Gab. (Rec. Doc. 44-5, Mittelstaedt
decl. ¶ 20). Mittelstaedt confirmed that the recording had been made while the two women
were talking privately in an office and that neither had consented to the recording or was
aware that a recorder was capturing their conversation. Mittelstaedt questioned Rome about
the recording but she denied any involvement. At this point, Children’s did not know about
any of the recordings that Rome had made.
Then, in conjunction with an unrelated disciplinary write-up, Rome authored a
rebuttal narrative that made express references to statements that Phillips had made on an

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audiotape recording, and to other recordings that were given to the EEOC in support of
Rome’s complaints. (Rec. Doc. 44-5 Exh. F-4, Rome rebuttal). Mittelstaedt attests that he
met with Rome on January 27, 2014 about the recordings, and that she denied any
knowledge of who made the recordings. Rome claimed to have simply found them on her
desk. 9 (Rec. Doc. 44-5 Exh. F, Mittelstaedt decl. ¶¶ 27-28). Mittelstaedt says that he asked
Rome for copies of the recordings so that he could review them but on February 5, 2014,
but she claimed that someone had stolen her copy of the recordings and that she had no
other copy. (Id. at ¶ 30).
Apparently Mittelstaedt did not believe Rome because in February 2014 Children’s
hired Avansic, Inc., a digital forensic company, to examine Rome’s work computer. Avansic
found the “Happy Audios” file on Rome’s computer and it contained approximately 40 hours
of audio recordings. The recordings were definitive proof that Rome had violated hospital
policy when she recorded meetings with Mittelstaedt and other staff, and that she had lied
specifically about recording the meeting in January 2014. It is the Court’s understanding
that most of the recordings in the Happy Audios file were non-consensually-recorded
employee conversations of which Rome was not a participant. (Id. ¶ 38). These recording
were not provided to the Court.
In her opposition, Rome cites to the fact that she not truthful about her actions until
she was deposed under oath in June 2015—in other words, that Children’s did not have
actual proof of her deceit until after she was fired when she finally confessed under oath.
Rome continues to deny that she played any role in making the non-consensual employee
recordings—recordings that were presumably helpful to Rome’s position on the EEOC

9

The Court has listened to this recording. Mittelstaedt’s characterization is accurate.
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charge since she gave them to the EEOC before anyone at Children’s had the opportunity
to hear them. Rome relies upon the fact that there is no direct evidence that she made the
unlawful recordings that were found on her computer. And Rome has denied any
knowledge of how the Happy Audios file came to be located on her computer, which is an
interesting denial because the file included the meetings that Rome now admits to
recording. Mittelstaedt, on the other hand, viewed the Happy Audio’s file on Rome’s
computer as strong circumstantial evidence of her involvement in the illicit recordings and in
her lack of truthfulness about the matter. (Rec. Doc. 44-5 Exh. F-5, Mittelstaedt letter).
Rome’s contentions are meritless but not because Mittelstaedt’s contentions in the
May 26, 2014 termination letter about Rome’s improper recordings in violation of hospital
policy and untruthfulness were actually correct in hindsight. Children’s did not need actual
proof of anything in order to terminate Rome, although the recordings of the meetings that
she covertly recorded were actual proof that she violated hospital policy. And when Avansic
found the recordings they were actual proof of her untruthfulness. That she now claims to
have known nothing about the hospital’s policy against making those recordings is of no
moment because Title VII does not impose a “fairness” requirement in termination
decisions. And even if Rome was unaware of the hospital’s policy against making
recordings, she was untruthful about it when confronted. She can hardly claim a benefit
from that untruthfulness by pointing out that she only came clean once she was deposed in
this lawsuit. The issue with respect to pretext is not whether Mittelstaedt’s belief was based
on probable cause, or even whether it was correct because even an erroneous belief can
constitute a legitimate, nondiscriminatory justification for an adverse action. See Mayberry
v. Vought Aircraft Co., 555 F.3d 1086, 1091 (5th Cir. 1995). Rome creates no issue of fact

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as to pretext.
Simply, Rome fails to recognize that she was an at-will employee who could be fired
for any reason except for one that violated Title VII. The burden is not on Children’s to prove
that it fired Rome for non-discriminatory reasons but rather on Rome to prove that “but for”
her filing of this lawsuit Children’s would not have fired her. In light of her own abhorrent
conduct Rome cannot establish but for causation. The best that Rome could ever hope to
prove is that retaliation had been a motivating factor in the otherwise well-supported
decision to terminate her, but post Nassar that would not be enough to meet her burden of
proof. Children’s is entitled to judgment as matter of law on Rome’s retaliatory discharge
claim.
2.

Race Discrimination: Hostile Work Environment

Children’s moves for summary judgment on Rome’s race-based hostile work
environment claim. Children’s argues that the acts of harassment alleged by Rome do not
give rise to a hostile work environment claim, and that she cannot prove that any alleged
acts affected a term, condition, or privilege of employment.
To establish a claim of hostile work environment under Title VII a plaintiff must prove
that she 1) belongs to a protected group; 2) was subjected to unwelcome harassment; 3)
the harassment complained of was based on race; 4) the harassment complained of
affected a term, condition, or privilege of employment; 5) the employer knew or should have
known of the harassment in question and failed to take prompt remedial action. Hernandez
v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting Ramsey v. Henderson,
286 F.3d 264, 268 (5th Cir. 2002)). Harassment affects a “term, condition, or privilege of
employment” if it is “sufficiently severe or pervasive to alter the conditions of the victim’s

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employment and create an abusive working environment.” Id. Workplace conduct is not
measured in isolation. Id. In order to deem a work environment sufficiently hostile so as to
support a claim under Title VII, “all of the circumstances must be taken into consideration.”
Id. This includes “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Id. To be actionable, the
work environment must be “both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the victim in fact did perceive
to be so.” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
At the outset, it is important to remain mindful that Title VII does not purport to
legislate personal beliefs. Therefore, evidence of coworker “racism” that Rome obtained by
searching social media is not relevant to her workplace claim. 10 And evidence of private
conversations that Rome would not have heard but for her decision to listen to audio
recordings that someone most likely obtained in violation of the law is also not evidence of
workplace harassment. The Court’s analysis will only involve the instances of workplace
race-based conduct that Rome was exposed to as a “condition” of her employment and that
she can testify to first-hand.
Considering how diligent Rome was about recording meetings and documenting the

10

The social media evidence is not even objectively race-based. For instance, Rome was
questioned at her deposition regarding a Facebook post by Pam O’Flynn that Rome searched
for and found online. The post said, “I just want a president who loves America.” (Rec. Doc. 442, Rome depo at 143). Apparently the context of the post made clear that it was complimentary
of President Reagan, and therefore implicitly critical of President Obama. When asked whether
O’Flynn’s regard for President Reagan meant that she was a racist, Rome answered “yes.” (Id.
at 145).

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goings on at the office, her reports of racial slurs as recounted in her deposition are
somewhat amorphous, imprecise, and hard to follow. For instance, Rome asserts that “the
comment in our office was that President Obama was referred to as a monkey or was called
a monkey.” 11 (Rec. Doc. 44-2, Rome depo at 71). Rome had maintained until the audio
recordings were discovered and contradicted her story, that she told Mittelstaedt about the
comment “monkey” reference in their February 2013 meeting and that he had said that
“monkey” was not a racial slur. (Id.). Rome’s own covert recording of this meeting confirms
that she never complained during that meeting about specific racial slurs being used by
anyone. And of course Mittelstaedt, who had always denied that he had condoned the term
“monkey” as non-racial, was vindicated by the recording. Rome did state at the meeting that
some of her coworkers had been critical of President Obama but she conceded during the
conversation that the criticism was not necessarily race-based. In her deposition, with the
recording now available to impeach her story, Rome claimed that Mittelstaedt must have
made the “monkey” comment to her on the phone at some point.
When asked at her deposition whether she had ever heard racial slurs directed at
African Americans at Children’s she answered “yes,” and said that coworker Gretchen
Dondis called her a “nigger” once. (Rec. Doc. 44-2, Rome depo at 97). Rome couldn’t
remember what day it was, and she thought that another comment had been made but
could not recall. Rome did not report this to anyone. Rome couldn’t remember any other
racial slurs being used. (Id. at 98). When pressed at her deposition about other racial
conduct in the workplace, Rome said that Dorothy Phillips made derogatory comments

11

Rome clarified later in her deposition that it was Gretchen Dondis who called President
Obama a monkey during a political conversation that she was having with someone else. (Rec.
Doc. 44-2, Rome depo at 185-86).
Page 16 of 28

about the way African Americans pronounce words and that she wished that the
government would give drug tests to African Americans on food stamps. (Id. at 111). Rome
did not report these incidents to anyone.
Rome identified other comments that she believed were racial in nature. For
instance, Pam O’Flynn once referred to herself as “a redneck from the delta.” (Rec. Doc.
44-2, Rome depo at 66). And once when Rome complained about Gretchen Dondis’s
rudeness, O’Flynn told her that Gretchen was an “uptown girl” and had been in pageants so
Rome would just have “to deal with it.” (Id.). These comments are not objectively racially
hostile, regardless of how Rome perceived them.
The specific incidents of racially offensive comments are insufficient as a matter of
law to support a Title VII hostile work environment claim. The comments directed at Rome
were isolated incidents that were not sufficiently pervasive over the course of Rome’s
employment to alter the conditions of her employment. Most of the comments that Rome
complains about, even if they were in fact made, while inappropriate and offensive, were not
directed at her.
To be sure, the workplace at Children’s was a “hostile” one in the medical
secretaries group. The evidence of record demonstrates an environment rife with animosity,
back-biting, and pettiness amongst the coworkers in that group. Rome’s complaints to
Mittelstaedt starting in February 2013 were based on that very complaint—that some people
in the office, especially Gretchen Dondis, were rude and inconsiderate. The recording of the
February 2013, meeting that later surfaced, and Rome’s own notes taken after that meeting
confirm that the hostilities in the office were not necessarily race-related. Rome even
confirmed during her deposition the Gretchen and Dorothy were “hard to work with, that

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they will force their way until they get what they want.” (Rec. Doc. 44-2, Rome depo at 15354). With respect to Dondis, Rome testified that she was verbally abusive to everybody at
the office. (Id. at 161). Harassing incidents with no clear connection to race, no matter how
offensive, are not probative of a race-based hostile work environment. Hernandez, 670 F.3d
at 654. Title VII does not provide a cause of action for work environments that are simply
“hostile.”
Plaintiffs place much stock in Dr. Heinrich’s testimony. Dr. Heinrich testified that he
did believe that the environment at Children’s was racially hostile toward African Americans
even before Rome and Riley complained about it. (Rec. Doc. 59 Exh. 4A, Heinrich depo at
22, 47). But much of Dr. Heinrich’s testimony was based on hearsay, and that is particularly
true with respect to Rome and Riley. Dr. Heinrich did not personally witness any racial
remarks directed at Rome and Riley that would add to what they reported themselves, and
he only heard about Rome and Riley’s complaints second-hand from them. (Id. at 34, 47).
With respect to Dondis in particular, Dr. Heinrich testified that Dondis’s behavior was not
racist but that she was “very cutting with employees both white and black.” (Rec. Doc. 59
Exh. 4A, Heinrich depo at 180). Dr. Heinrich’s personal opinion that racial tensions existed
amongst the medical secretaries might very well be a valid one. And perhaps Rome’s own
subjective belief that some seemingly race-neutral incidents were motivated by racial
animus is correct. But these beliefs do not suffice to establish a claim under Title VII.
In sum, the acts of harassment alleged by Rome do not give rise to a hostile work
environment claim, and she has not shown that any alleged acts affected a term, condition,
or privilege of employment. Children’s is entitled to judgment as a matter of law on Rome’s
hostile work environment claim.

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3.

Intentional Infliction of Emotional Distress

Rome alleges that Children’s is liable for intentional infliction of emotional distress for
firing her. (Rec. Doc. 30, First Amend. Comp ¶ 18(d)). In order to recover for intentional
infliction of emotional distress plaintiff must establish that the conduct of the defendant was
extreme and outrageous, that the emotional distress suffered by the plaintiff was severe,
and that the defendant desired to inflict severe emotional distress or knew that severe
emotional distress would be certain or substantially certain to result from his conduct. White
v. Monsanto, 585 So. 2d 1205, 1209 (La. 1991). Rome’s claim for intentional infliction of
emotional distress fails as a matter of law on all elements. Rome presumably recognized as
much because she did not attempt to defend this cause of action in her opposition.
Children’s is entitled to judgment as a matter of law on Rome’s intentional infliction of
emotional distress claim.
4.

Slander

Rome’s slander claim is based on a letter that Mittelstaedt wrote to the Louisiana
Workforce Commission on May 29, 2014, to protest payment of unemployment benefits to
Rome. (Rec. Doc. 59 Exh. 49, Plaintiffs’ Joint Opposition). In that letter Mittelstaedt states
that Children’s discharged Rome for inter alia “probable violation of Louisiana law.” (Id.). In
the detailed letter, Mittelstaedt states that “most [of the recordings found on Rome’s
computer] also violated Louisiana law, which states that bugging someone’s office is illegal.
Finally, Mittelstaedt concludes as follows:
We are now in the process of preparing the evidence associated with this
matter to turn over to the police for possible prosecution of Ms. Rome for
violation of Louisiana law regarding her illegal recordings.
We ask that you disqualify Ms. Rome from unemployment benefits and also
assess penalties against her for gross misconduct.
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(Rec. Doc. 59 Exh. 49, Plaintiffs’ Joint Opposition).
Ms. Rome was denied unemployment benefits after her termination, presumably
based upon Mittelstaedt’s letter.
Defamation is a tort which involves the invasion of a person’s interest in his or her
reputation and good name. Costello v. Hardy, 864 So. 2d 129, 139 (La. 2004) (citing
Fitzgerald v. Tucker, 737 So. 2d 706, 715 (La. 1999); Trentecosta v. Beck, 703 So. 2d 552,
559 (La. 1997); Sassone v. Elder, 626 So. 2d 345, 350 (La. 1993)). Four elements are
necessary to establish a defamation cause of action: 1) a false and defamatory statement
concerning another; 2) an unprivileged communication to a third party; 3) fault (negligence
or greater, such as malice) on the part of the publisher; and 4) resulting injury. Id. (quoting
Trentecosta, 703 So. 2d at 559).
Words that convey an element of personal disgrace, dishonesty, or disrepute are
defamatory. Costello, 864 So. 2d at 140 (citing Fitzgerald, 737 So. 2d at 716). In Louisiana,
defamatory words have traditionally been classified into two categories: those that are
defamatory per se and those that are susceptible of a defamatory meaning. Id. (citing
Lemeshewsky v. Dumaine, 464 So. 2d 973, 975 (La. App. 4th Cir. 1985)). Words that
expressly or implicitly accuse another of criminal conduct are considered defamatory per se.
Id. When a plaintiff proves publication of words that are defamatory per se, the elements of
falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Id. (citing
Kosmitis v. Bailey, 685 So. 2d 1177, 1180 (La. App. 2d Cir. 1996)).
Children’s “words” were defamatory per se because Mittelstaedt accused Rome of
criminal conduct. With the legal presumptions that attach to a defamatory per se statement,
Rome satisfies elements 1, 3), and 4) of a defamation claim.
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With respect to element 2) of a defamation claim, Children’s submits that its
statements to the Louisiana Workforce Commission are protected by a qualified privilege.
Children’s contends that Mittelstaedt’s statements were made in good faith and that it
concerned a matter of great concern to both Children’s and the Louisiana Workforce
Commission.
Liability for defamation does not attach from privileged publications or
communication. Hines v. Ark. La. Gas Co., 613 So. 2d 646, 656 (La. App. 2d Cir. 1993)
(citing Toomer v. Breaux, 146 So. 2d 723 (La. App. 3d Cir. 1962)). With respect to an
employer who undertakes an investigation of employee misconduct, a qualified or
conditional privilege is enjoyed when making a statement in good faith, on a subject in
which the communicator has an interest or duty, to one having a corresponding interest or
duty. Id. (citing Roberts v. La. Bank & Trust Co., 550 So. 2d 809 (La. App. 2d Cir. 1989)).
“Good faith” means having reasonable grounds for believing that the statement is correct,
but proof of ultimate truth is not necessarily required. Id.
The record in this case firmly supports a finding of good faith on Mittelstaedt’s part
for the statements that he made to the Louisiana Workforce Commission. Even if
Mittelstaedt’s statements regarding Rome’s involvement in the non-consensual recordings
were later determined to be inaccurate, it would not deprive the statements of their “good
faith” character when he made them. Louisiana law prohibits the payment of unemployment
benefits to an individual discharged for misconduct such as dishonesty or violation of the
law. La. R.S. § 23:1601(2)(a). After Children’s discovered the recordings that Rome had
made in violation of hospital policy, it had conclusive proof of her dishonesty. Clearly, an
employer such as Children’s and the Louisiana Workforce Commission have a common

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interest in ensuring that an individual terminated for misconduct that would statutorily
disqualify her for benefits does not receive them. Therefore, even though Children’s lacked
direct proof of unlawful conduct, Children’s was entitled to inform the Commission about its
investigation and the conclusions that it reasonably and in good faith reached from it. The
motion for summary judgment is GRANTED as to Rome’s slander claim.
Nicole Riley’s Claims
1.

Retaliatory Discharge

Children’s fired Riley on May 26, 2014, which was shortly after Rome and Riley
jointly filed the instant lawsuit on May 3, 2014. Riley moved to amend her complaint on
February 2, 2015 to include inter alia a claim of retaliatory discharge. In her amended
complaint, Riley avers that Children’s terminated her in retaliation for “protected activities:
filing prior EEOC charges and making verbal complaints of race discrimination to
management . . . .” (Rec. Doc. 30, First Amend. Comp ¶ 18(a)). No other acts of retaliation
are alleged. Children’s contends that Riley was terminated for legitimate business reasons
and that her complaints of racial discrimination played no part in the decision. Children’s
argues that Riley cannot establish but for causation or pretext under the applicable Title VII
standards.
The legal standards that govern this claim are the same as those laid out in the
section analyzing Rome’s retaliatory discharge claim.
The first step in the analysis is Riley’s prima facie case of retaliatory discharge.
According to Riley, she initially raised claims of racial discrimination in October 2012. (Rec.
Doc. 59, Riley oppo. at 12 & Exh. 25). Riley’s own timeline reflects meetings with
management as far back as October 2012 with the last meeting taking place in June 2013.

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(Id. Exh. 25). Riley prepared this timeline less than a month before she was terminated.
(Id.). At some point, Riley filed a charge of discrimination with the EEOC. Clearly Riley
engaged in protected activity at various times.
Riley suffered an adverse employment action when she was terminated on May 26,
2014. Therefore, the first two steps in Riley’s prima facie case for retaliatory discharge are
satisfied. 12
Next, Riley must establish a causal connection between the protected activity and
her termination. Riley’s entire causation analysis is premised on the theory of temporal
proximity. Given that the filing of the federal lawsuit and the termination were unarguably
“very close” in time, the Court finds that Riley has satisfied her prima facie case of
retaliatory discharge. 13
The next step of the McDonnell Douglas framework falls to Children’s to produce its
legitimate, non-discriminatory reason for terminating Riley. According to Mittelstaedt’s letter,
Riley was terminated because Mittelstaedt suspected her of being untruthful. (Rec. Doc. 454 Exh. E-2, Mittelstaedt letter). First, Mittelstaedt refers to the meeting that he had with Riley

12

Like Rome, the only claim for retaliation that Riley pleaded in her amended complaint was
retaliatory discharge. Riley had been disciplined several times during her employment with
Children’s and it is clear from her deposition testimony that Riley’s subjective belief is that all of
the write-ups were motivated by race. But Riley makes no attempt to establish any other acts of
discipline were adverse employment actions under Title VII.

13

To the extent, if any, that Riley relies on temporal proximity with respect to any other
retaliatory act, her opposition is confusing on this point. Riley makes the following statement at
page 13 of her opposition: “Close temporal proximity exists between [her] filing of the EEOC
charge of discriminatory actions.” The timing of acts is crucial to a temporal proximity argument
yet Riley never expressly gives the date that she filed her EEOC charge and she never
expressly links it to a specific retaliatory act. But again, given that the only retaliatory act
pleaded was retaliatory discharge, see note 13 supra, the Court will only consider this act of
alleged retaliation. As Riley points out, Children’s challenge to her claim focuses on causation
and pretext rather than on her prima facie case. (Rec. Doc. 59, Riley oppo. at 14).
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on May 16, 2014, when he confronted her about the recordings found on Rome’s computer.
Riley had denied any knowledge of either the content of the recordings or the individual who
made them. But the content of the recordings themselves suggested to Mittelstaedt that
Riley had been involved. Second, there had been an issue with documents being missing
from Riley’s personnel file. According to the letter, Riley was given the file for review and it
was later discovered that disciplinary warnings that should have been in the file were
missing. When questioned, Riley denied that she reviewed the file. Mittelstaedt did not
believe Riley and he was persuaded that Riley was being untruthful. (Id.).
Mittelstaedt’s letter provides two non-discriminatory reasons for Children’s decision
to terminate Riley. The burden now shifts to Riley to prove that Children’s’ proffered reasons
are a pretext for retaliation, or at least to create an issue of fact as to pretext. Riley must
rebut each non-retaliatory reason articulated by Children’s. To meet this burden Riley must
show that Children’s would not have fired her “but for” her having filed the instant lawsuit.
The Court is persuaded that Riley has not created an issue of fact as to either pretext or but
for causation.
Riley’s argument in opposition, i.e., that she continues to deny any involvement with
the recordings and that truthfulness and credibility cannot be determined on summary
judgment, misapprehends the parties’ respective burdens of proof and the material issues in
this Title VII case. Whether Riley was actually truthful or not about the recordings or her
personnel file is not an issue that Children’s has to prove. Children’s does not have to prove
that it terminated Riley for non-retaliatory reasons. Rather, Riley alone has the burden of
proving that she was fired because she filed the instant law suit and/or an EEOC charge,
and that in the absence of that protected activity, Children’s would have continued with her

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employment. Riley, like Rome, was an at-will employee who could be fired for any reason
except one proscribed by Title VII. Therefore, even if Riley’s credibility was tested at trial
and a jury found her to be truthful on matters where Mittelstaedt found her untruthful, that
would not mean that she was fired in retaliation for protected activity. 14
That said, the Court has reviewed Riley’s deposition testimony regarding the
recordings made in the workplace, recordings that she gave to the EEOC in support of her
claims. Children’s did not have the benefit of Riley’s implausible deposition testimony when
it terminated her but it did have the Happy Audios recording found on Rome’s computer.
One of the recorded conversations takes place between Rome and Riley, and the there is a
clear reference to “tapes” and that speaker appears to be Riley. There is also a suspicious
statement regarding something being left on a coworker’s desk and Children’s concluded
that it was Riley referring to a recording device. Children’s’ Material Facts 12 through 14
remain unrebutted and they fully support Children’s legitimate reasons for terminating Riley.
(Rec. Doc. 45-1). What Riley fails to comprehend is that even if proof of complete
innocence were to somehow surface now after-the-fact, that does not impugn Children’s’
otherwise reasonable inferences from the evidence that it had when it terminated her and it
does not ipso facto transform her discharge into a retaliatory one. Riley cannot demonstrate
pretext and she cannot establish but for causation. Children’s is entitled to judgment as a
matter of law on Riley’s retaliatory discharge claim. 15

14

When asked at her deposition why she believed that the hospital terminated her in retaliation
for filing an EEOC charge, Riley responded, “Why would I be fired? No one gave me an
explanation to why I was fired?” (Rec. Doc. 45-2, Riley depo at 155-56). Riley’s subjective belief
that she was worthy of continued employment with Children’s is not probative of retaliation.

15

When counsel for Children’s was asking Riley general questions about private conversations
in the workplace, Riley opined that workplace conversations behind closed doors would not be
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2.

Race Discrimination: Hostile Work Environment

Children’s moves for summary judgment on Riley’s race-based hostile work
environment claim. Children’s points out that Riley’s assertions of workplace incidents are
vague, ambiguous, and generalized. Children’s argues that the acts of harassment alleged
by Riley do not give rise to a hostile work environment claim, and that she cannot prove that
any alleged acts affected a term, condition, or privilege of employment.
The legal standards that govern this claim are the same as those laid out in the
section analyzing Rome’s hostile work environment claim.
Riley was questioned at her deposition as to specific incidents of racial animus in the
workplace. Riley testified that Gretchen Dondis called her a “monkey.” (Rec. Doc. 45-2,
Riley depo at 85). Riley repeatedly testified that she did not know how many times this
occurred, and that she only recalled the one time. (Id. at 91). She testified that Gretchen
Dondis called Riley a “black bitch” once. (Id. at 90). On another occasion, Riley purportedly
overheard part of a conversation where coworkers Gretchen Dondis, Dorothy Phillips, and
Judy Gab referred to African-Americans as “monkeys.” (Id. at 91).
Next, Riley testified that Dorothy Phillips had called her a “nigger.” (Id. at 93). Riley
could not recall anything about the incident or how often this had occurred. (Id. at 94). Riley
testified that she had heard Dorothy Phillips say derogatory things about African-Americans
in general, particularly after dealing with African-American patients. (Id. at 96).
These incidents are insufficient as a matter of law to support a Title VII hostile work

private ones like those held at home. (Id. at 194, 197). When counsel followed up with a
question as to whether it would be inappropriate or wrong to record conversations of co-workers
having lunch in an office, Riley retorted that having a private conversation in someone else’s
office would be wrong. (Id. at 198). When pressed for an answer to his question, Riley ultimately
confirmed that it would be okay to record coworkers’ conversations. (Id. at 200).
Page 26 of 28

environment claim. The comments directed at Riley were isolated incidents that were not
sufficiently pervasive over the course of Riley’s employment to alter the conditions of her
employment. Children’s is entitled to judgment as a matter of law on Riley’s hostile work
environment claim.
3.

Intentional Infliction of Emotional Distress

Riley alleges that Children’s is liable for intentional infliction of emotional distress for
firing her. (Rec. Doc. 30, First Amend. Comp ¶ 18(d)). Riley’s claim for intentional infliction
of emotional distress fails as a matter of law on all elements. Riley presumably recognized
as much because she did not attempt to defend this cause of action in her opposition.
Children’s is entitled to judgment as a matter of law on Riley’s intentional infliction of
emotional distress claim.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment Regarding the Claims
of Plaintiff Kelly Rome-Bienemy (Rec. Doc. 44) filed by defendant Children’s Hospital,
Inc. is GRANTED in its entirety. All claims by plaintiff Kelly Rome-Bienemy are DISMISSED
with prejudice;
IT IS FURTHER ORDERED that the Motion for Summary Judgment Regarding
the Claims of Plaintiff Nicole Riley (Rec. Doc. 45) filed by defendant Children’s Hospital,
Inc. is GRANTED in its entirety. All claims by plaintiff Nicole Riley are DISMISSED with
prejudice;
IT IS FURTHER ORDERED that the Motion in Limine to Exclude Expert Opinion
(Rec. Doc. 43) is DENIED as moot;
IT IS FURTHER ORDERED that the Motion in Limine to Bar Illegal Audios (Rec.

Page 27 of 28

Doc. 55) is DENIED as moot;
IT IS FURTHER ORDERED that the Motion for Sanctions (Rec. Doc. 56) is
DENIED;
IT IS FURTHER ORDERED that the Motions in Limine to Exclude Comparator
Evidence (Rec. Docs. 77 & 78) are DENIED as moot.
December 14, 2015

JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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