Jones et al v. Board of Supervisors of the University of Louisiana System et al
Filing
84
ORDER & REASONS: ORDERED that 59 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as stated within document. Signed by Magistrate Judge Karen Wells Roby. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANGELA JONES and RASHEDA GANDOLFO
CIVIL ACTION
VERSUS
NO:
BOARD OF SUPERVISORS OF THE
UNIVERSITY OF LOUISIANA SYSTEM,
MICHAEL PRESCOTT, KEVIN KNUDSEN,
KEVIN BRADY, CARMEN BRAY and MIKE
MCGILL (In their Individual and Official
Capacities)
UNITED STATES MAGISTRATE
JUDGE KAREN WELLS ROBY
14-2304
ORDER & REASONS
Before the Court is a Motion for Summary Judgment on Behalf of Defendants
Michael Prescott, Kevin Knudsen, and Mike McGill (R. Doc. 59) filed by Defendants
Michael Prescott, Kevin Knudsen, and Mike McGill seeking an Order from the Court granting
summary judgment against Plaintiffs and dismissing Plaintiffs’ 42 U.S.C. § 1985(3) claim
against them with prejudice. The motion is opposed. R. Doc. 66.
I.
Factual Background
This is an employment discrimination case filed pursuant to the Due Process Clause of
the Fifth Amendment of the U.S. Constitution, the Due Process Clause and the Equal Protection
Clause of the Fourteenth Amendment of the U.S. Constitution, Title VII of the Civil Rights Act
of 1964, 5 U.S.C. § 2302, and 42 U.S.C. § 1985(3). R. Doc. 1, p. 1. Plaintiffs, Angela Jones
(“Jones”) and Rasheda Gandolfo (“Gandolfo”), both African-American women who worked as
parking enforcement officers for Southeastern Louisiana University (“SLU”) filed this action
against their former employer, the Board of Supervisors of the University of Louisiana System
(“University”), who managed SLU.
Jones seeks damages for wrongful termination and
retaliation and Gandolfo seeks damages for retaliation and sexual harassment.
Plaintiffs also filed this action against the former chief of SLU’s Police Department, the
Interim Chief of Police for SLU, several lower ranking supervisors, and the Human Resources
Director, all of whom are white males, for conspiring to create a hostile work environment in
violation of 42 U.S.C. § 1985(3). Id. at 21. Jones and Gandolfo also seek to recover punitive
damages against each defendant sued in their individual capacities namely Prescott, Knudsen
Brady, Bray, and McGill for their reckless disregard and indifference to their rights. (Complaint
Rec. Doc. 1, ¶ 3).
Jones alleges that she was subjected to unfair treatment and harassment based on race and
gender. See R. Doc. 1, p. 1. She alleges that various employees of SLU used racial epithets, such
as “Nigger”, to harass her based on her race. Id. at 5. Jones alleges that Prescott and Knudsen,
the Department’s former Chief of Police and a Captain, subjected her to race based and sex
based discrimination by blocking her from being promoted to Police Officer I, a position for
which she was qualified. R. Doc. 1, p. 7. Prescott was forced later to resign as Chief of Police
due to payroll fraud and allegedly falsely accused Jones of reporting him to the SLU auditors. Id.
at 8. Jones also contends that while she was terminated for poor performance, only AfricanAmerican females were terminated on this ground whereas white employees were allowed to
resign. Id. at 9.
Rasheda Gandolfo, who was employed at SLU as a student worker for SLU’s Parking
Division, alleges that she was exposed to sexually inappropriate comments and behavior by her
co-worker, Dennis Elzey. Id. at 12. She alleges that Elzey would make crude comments such as
“What is that hanging down your leg? A really long thong?.” Further, Gandolfo alleges that
Elzey would tap her on her buttock, call her “Bitch,” and commented that she “should try out for
Playboy.” Id. at 13. Gandolfo alleges that she informed SLU’s EEOC Compliance Officer,
Eugene Prejean, and that Elzey received a two-day suspension. Id. at 14. Gandolfo alleges that
after she filed her grievance against Elzey, he continued to follow her even though he was told
by his supervisors not to communicate with her. Id. at 16.
Gandolfo alleges that because of her persistent complaints, Prescott assigned her to the
position of timekeeper for the entire SLU Parking Division and Police Department. She alleges
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that her new assignment constituted retaliation because it was too voluminous to be assigned to
one person and had never been assigned to one person before.
Additionally after being required to attend a class on harassment she began to experience
humiliation and was overwhelmed with anxieties resulting in her taking time off from class. The
next month, Gandolfo was terminated for “low leave balance” even though she had not
exhausted her leave time. In contrast, Gandolfo alleges that for her white female employees the
University persuaded other employees to pool their leave hours to donate them. Further,
Gandolfo alleges that the University did not terminated a white, female employee who was
caught stealing whereas she was terminated for coming close to running out of leave time. Id. at
18.
II.
Procedural History
On May 27, 2015, pursuant to Federal Rules of Civil Procedure (“FRCP”) 12(b)(6), the
Court granted, in part, Defendants’ Motion to Dismiss (R. Doc. 5) and dismissed Plaintiffs’ Due
Process Clause of the Fifth Amendment; Due Process Clause of the Fourteenth Amendment; the
Equal Protection Claim of the Fourteenth Amendment for retaliation; and Whistleblower
Protection Act, 5 U.S.C. § 2302(b)(8) claims against the University. See R. Doc. 16, p. 18. Thus,
Plaintiffs’ viable claims that remain against the University are pursuant to the Equal Protection
Claim of the Fourteenth Amendment for race-based wrongful termination and sexual harassment
and Title VII for wrongful termination, sexual harassment, and retaliation. See id. at 17.
Further, on November 15, 2015, pursuant to FRCP 12(c), the Court denied Defendants’
Motions to Dismiss (R. Docs. 40, 42). The Court held that, based on their pleadings, Plaintiffs
asserted sufficient factual allegations to assert additional rights under §§ 1981 and 1983. The
Court also held that Plaintiffs’ §§ 1981 and 1985 claims were not timed barred because those
claims were premised on Plaintiffs’ § 1981 claim, for which a four-year prescriptive period was
applied. See R. Doc. 65.
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Defendants Prescott, Knudsen, and McGill filed the subject motion seeking dismissal of
the claims asserted by Jones and Gandolfo on several grounds: (1) plaintiffs claim that the
defendants conspired to violate their civil rights fails as a matter of law and (2) that the neither of
the defendants can be held liable under the conspiracy claim because they had no authority to
terminate Jones.
Jones and Gandolfo oppose the subject motion. Jones contends that the affidavit of
O’Neil DeNoux indicates that he attended a meeting of Prescott’s inner circle where a decision
and plan to terminate Jones was discussed. The plaintiffs do not provide a response regarding
the conspiracy claims of Gandolfo. R. Doc. 66, p. 1.
III.
Standard of Review
Federal Rule of Civil Procedure (“Rule”) 56(a) provides that summary judgment is
appropriate where “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material”
if resolving that fact in favor of one party could affect the outcome of the suit. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986); Poole v. City of Shreveport, 691
F.3d 624, 626-27 (5th Cir. 2012).
Where the moving party bears the burden of proof at trial as the plaintiff, or as a
defendant asserting an affirmative defense, that party must support its motion with “credible
evidence . . . that would entitle it to directed verdict if not controverted at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 331, 106 S. Ct. 2548 (1986). In such a case the moving party must
“establish beyond peradventure all of the essential elements of the claim or defense to warrant
judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis
in original); see also Access Mediquip L.L.C. v. United Healthcare Ins. Co., 662 F.3d 376, 378
(5th Cir. 2011).
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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).
Once the moving party has made its showing, the burden shifts to the non-moving party
to produce evidence that demonstrates the existence of a genuine issue of fact. Engstrom v. First
Nat. Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322–
24). All justifiable inferences are to be drawn in the non-moving party’s favor. Anderson, 477
U.S. at 255. However, “[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for Summary Judgment.” Brown v. City of
Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003) (internal citations omitted); see also Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (stating that “mere conclusory allegations” are
insufficient to defeat a motion for summary judgment). Though the Court may not evaluate
evidence on a motion for summary judgment, the Court may make a determination as to the
“caliber or quantity” of evidence as part of its determination of whether sufficient evidence exists
for the fact-finder to find for the non-moving party. Anderson, 477 U.S. at 254.
Moreover, credibility determinations have no place in summary judgment proceedings.
See Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993); Leonard v. Dixie Well Serv.
& Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987). The non-movant’s summary judgment
evidence must be taken as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A Court view facts in the light most favorable to the non-movant and draw all reasonable
inferences in his favor. Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). If the non5
movant sets forth specific facts in support of allegations essential to her claim, a genuine issue of
material fact is presented, and summary judgment is inappropriate. Id. Summary judgment may
be improper, even though the basic facts are undisputed, if the ultimate facts in question are to be
inferred from them, and the parties disagree regarding the permissible inferences that can be
drawn from the basic facts. Winters v. Highlands Insurance Company, 569 F.2d 297, 299 (5th
Cir. 1978). “‘(T)he choice between permissible inferences is for the trier of facts.’” Nunez v.
Superior Oil Co., 572 F.2d 1119 (5th Cir. 1978). Where a jury is called for, the litigants are
entitled to have the jury choose between conflicting inferences from basic facts. Id.
IV.
Analysis
A.
Conspiracy to Terminate Jones
The defendants set forth several reasons why Jones conspiracy claim fails: (1) that she
was terminated due to her failure to perform and not as a result of a conspiracy, and (2) that
neither of them had the authority to terminate her. Specifically the defendants contend that there
is not enough evidence to support Jones’s claim that they conspired against her which resulted in
her termination. The defendants further contend that there is insufficient evidence that Jones’s
termination was in anyway due to her race. In fact, the evidence of record shows that she failed
to perform in six different areas as determined by the Civil Service Decision.
To make out a claim under 42 U.S.C. § 1985(3), “a plaintiff must allege that two or more
persons have conspired to deprive, either directly or indirectly, any person or class of persons of
the equal protection of the laws.” St. Martin v. Jones, 2008 WL 4412267, at *7 (E.D. La. Sept.
17, 2008)(citing Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987)).
Furthermore, a plaintiff must also allege “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirator’s action.” Griffin v. Breckenridge, 403
U.S. 88, 102-03, 91 S. Ct. 1790 (1971); see Deubert v. Gulf Federal Savings Bank, 820 F.2d 754,
757 (5th Cir. 1987) (holding that in the Fifth Circuit, plaintiffs must state a race-based
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motivation in order to bring a § 1985(3) conspiracy claim) (“[I]t is well-established in this circuit
that the only conspiracies actionable under section 1985(3) are those motivated by racial
animus.”).
When considering whether a plaintiff has sufficiently alleged a claim under § 1985(3),
the Court has held that a plaintiff’s allegations can be “substantiated by circumstantial evidence
because ‘conspirators rarely formulate their plans in ways susceptible of proof by direct
evidence.’” St. Martin, 2008 WL 4412267, at *7-8 (quoting Smith v. Tangipahoa Parish Sch.
Bd., 2006 WL 3395938, at * 17 (E.D. La. Nov. 22, 2006)). In St. Martin, the Court found that the
plaintiffs alleged sufficient facts to make out a § 1985(3) claim by stating that there was a litany
of complaints against one defendant and that the other defendants knew about the complaints but
chose not to act upon them. 2008 WL 4412267, at *8.
The record shows that O’Neil DeNoux who formerly worked for the SLU Police
Department as a Police Investigator was present during a staff meeting of Prescott’s inner circle.
DeNoux states that he heard Prescott announce that he wanted to get rid of his road sergeants and
that only way to do it was through a paper trail of complaints. (Affidavit O’Neil DeNoux,
October 22, 2015, ¶7)
Further, DeNoux states thereafter Prescott began flooding HR with complaints on certain
individuals including Jones. (Id. at ¶8) DeNoux attests that he initiated an investigation on April
30, 2012, and while he was still investigating the matter, Prescott prematurely gave Jones a letter
recommending that she be suspended. (Id. at ¶ 18) At the conclusion of DeNoux’s investigation,
he found that the charges against Jones were unfounded and his investigation did not end until
June 27, 2012. (Id. at ¶17) DeNoux maintains that Prescott is an “aggressor [and a] bully” and
that Jones faced harassment in the department that never subsided. (Id. at ¶ 5)
During the course of DeNoux’s investigation, McGill sent an email to DeNoux which
stated that he “seemed to have lost sight of the scope of the investigation.” (Id. at ¶ 22) Later,
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DeNoux and McGill met to discuss the investigation and DeNoux left with the impression that
Prescott was the moving force between McGill’s communications with him. (Id. at ¶ 23)
DeNoux attests that he believed that Knudsen and Prescott sought to control and stifle the scope
of his investigation and he called for an investigation of SLUPD’s administration for possible
violations of university policies and procedures. (Id. at ¶ 28)
DeNoux also observed Knudsen spying on Jones during her crosswalk assignment. (Id. at
¶ 41) DeNoux further maintains that racism has been a constant in the “all-white” department. Id.
He notes that during his nine years in the department there were only two African-American
officers hired and that both left because of complaints of racism. (Id.) Further, DeNoux states
that Knudsen showed misogynistic tendencies and made racist remarks, including his statement
that “a black woman has her needs” after being informed that Jones is married to a white man.
Id. DeNoux further states that incredibly Jones was fired by Knudsen who also sued her for
damages for reverse discrimination. (Id. at ¶ 71)
In considering the evidence submitted consisting of the letter terminating Jones and the
affidavit of DeNoux, the Court finds that there is a genuine issue of material fact as to whether
Prescott, Knudsen, and McGill conspired to create reasons to terminate Jones, even if neither of
them had the authority to terminate Jones or Gandolfo.
B.
Conspiracy to Terminate Gandolfo
As to Gandolfo, the defendants contend that Brady, the Human Resources Directors, did
not cite either her gender or race in the termination letter. According to the defendants, Gandolfo
testified that she was terminated from her job as an Administrative Assistant 1 for having low
leave balances. (Rec. Doc. 59, p. 7) As a result, the defendants contend that Gandolfo was
terminated for reasons other than race or gender.
Gandolfo does not provide any response to the defendants’ allegation that she does not
have any evidence that they conspired against her. Gandolfo only contends that low leave
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balances were merely pre-textual grounds used to disguise the actual race and gender reasons for
terminating her in April 2012.
The only evidence presented in opposition to the defendants’ motion for summary
judgment as to Gandolfo’s claims is the affidavit of DeNoux. DeNoux’s affidavit only attests to
his knowledge regarding Jones’s claims against Prescott, Knudsen, and McGill. It makes no
mention of Gandolfo nor does he asserts facts that the defendants conspired to terminate
Gandolfo. Gandolfo’s own testimony acknowledges that she was told by Kevin Brady that she
was terminated due to her low leave balance and she believed she had six hours of leave time
left, which is a non-discriminatory reason. (Rec. Doc. 59-4, p. 54, lines 22-25; page 55, lines 1-4)
Accordingly, there is a no genuine issue of fact as to whether Defendants conspired to create a
hostile work environment to terminate Gandolfo.
C.
No Authority to Terminate Jones or Gandolfo
The defendants next contend that the plaintiffs claim fails because neither of them had the
authority to terminate Jones or Gandolfo. They contend therefore that the 1985(3) conspiracy
claim should be dismissed because they were without authority to deprive either Jones or
Gandolfo of their rights.
In opposition, plaintiff contends that although Prescott no longer worked for SLU when
plaintiffs were terminated, he continued to exercise influence over the Police Department. (Rec.
Doc. 66-1, p. 2) Plaintiffs further contend that while McGill and Knudsen had no formal position
of authority over them, they were in a position due to political influence to cause her to be
terminated from her position. (Id.)
An employee of a Title VII employer may be liable himself if, as the employer’s agent,
he exercised supervisory authority over the alleged victim. Paroline v. Unisys Corp., 879 F.2d
100, 104 (4th Cir. 1989). The supervisory employee need not have ultimate authority to hire or
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fire to qualify as an employer as long as he or she has significant input into such personnel
decisions. (Id.)
Furthermore, an employee may exercise supervisory authority over the plaintiff for Title
VII purposes even though the company has formally designated another individual as the
plaintiff's supervisor. As long as the company’s management approves or acquiesces in the
employee’s exercise of supervisory control over the plaintiff, that employee will hold
“employer” status for Title VII purposes. See Hamilton v. Rogers, 791 F.2d 439 (5th Cir. 1986)
(holding that agents of the employer despite their intermediate standing wielded authority to the
claimant’s detriment were employers for Title VII purposes).
Indeed, so long as Prescott (Police Chief), Knudsen (Sergeant), and McGill (Captain)
exerted authority as supervisors over the terms and conditions of Jones and Gandolfo’s
employment, they may be an employer of theirs under Title VII. There is no dispute that
Prescott, Knudsen, and McGill were Jones and Gandolfo’s supervisors. They had authority over
matters such as car assignments and the staffing of shifts, and they wielded this authority to
Jones’s and Gandolfo’s detriment. Even more importantly, they conducted investigations which
led to Jones being disciplined and ultimately terminated and Gandolfo being terminated for low
leave level. Thus, while the extent of their control and authority is unclear and requires further
development at trial, plaintiffs have raised a triable issue of fact. 1
V.
Conclusion
Accordingly,
IT IS ORDERED that the Defendants’ Motion for Summary Judgment (R. Doc. 59) is
GRANTED in part and DENIED in part.
IT IS GRANTED as to Rasheda Gandolfo’s 42 U.S.C. § 1985(3) claim against
Defendants Michael Prescott, Kevin Knudsen, and Mike McGill. Accordingly, Rasheda
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This analysis does not affect the prior determination that there is no genuine issue of fact as to whether
Defendants conspired to create a hostile work environment to terminate Gandolfo. Thus, even if they were her
supervisors there is no allegation that they conspired to have her terminated.
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Gandolfo’s 42 U.S.C. § 1985(3) claim against Defendants Michael Prescott, Kevin Knudsen, and
Mike McGill is DISMISSED WITH PREJUDICE.
IT IS DENIED as to Angela Jones’s 42 U.S.C. § 1985(3) claim against Defendants
Michael Prescott, Kevin Knudsen, and Mike McGill.
New Orleans, Louisiana, this 26th day of February 2016.
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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