Shields v. Boys Town Louisiana, Inc. et al

Filing 108

ORDER granting in part and denying in part 63 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LYNN SHIELDS

CIVIL ACTION

VERSUS

NO. 15-3243

BOYS TOWN LOUISIANA, INC., et al.

SECTION: “G”(2)
ORDER

In this litigation, Plaintiff Lynn Shields (“Shields”) alleges that Defendants Boys Town
Louisiana, Inc. (“Boys Town”) and Father Flanagan’s Boys Home (collectively “Defendants”)
discriminated against her on the basis of her race and retaliated against her for complaining about
discrimination and for taking protected leave under the Family Medical Leave Act (“FMLA”). 1
Pending before the Court is Defendants’ “Motion for Summary Judgment.” 2 Having reviewed the
motions, the memoranda in support, the memoranda in opposition, the record, and the applicable
law, the Court will grant the motion in part and deny the motion in part.
I. Background
A.

Factual Background
Shields, a Caucasian woman, alleges that she began working as a Director of Development

for Defendants on August 16, 2008 and reported to Defendants’ Executive Director for Louisiana,
Dr. Dennis Dillon (“Dillon”). 3 Shields alleges that she was subjected to discrimination based upon

1

Rec. Doc. 1 at 1.

2

Rec. Doc. 63.

3

Rec. Doc. 1 at 1.

1

her race and retaliated against for taking FMLA-protected leave. 4 Shields also alleges that while
she was using FMLA leave in 2014, Dillon informed her that Defendants were not happy with her
client and fundraising numbers and were closely monitoring her performance. 5 Shields alleges that
on October 31, 2014, she was informed that she was being suspended for making racially
insensitive remarks and that there would be an investigation. 6 She alleges that despite requesting
a copy of her personnel file on or around October 30, 2014, she was never provided with a copy
and she was terminated without reason or justification in November 2014. 7
B.

Procedural Background
Shields filed a complaint against Defendants on August 4, 2015. 8 Defendants filed the

instant motion on May 10, 2016. 9 On May 24, 2016, Shields filed an opposition. 10 With leave of
Court, Defendants filed a reply on June 3, 2016. 11 Plaintiff filed a sur-reply with leave of Court on
June 6, 2016. 12

4

Id. at 1–2.

5

Id. at 4.

6

Id. at 5.

7

Id.

8

Rec. Doc. 1.

9

Rec. Doc. 63.

10

Rec. Doc. 74.

11

Rec. Doc. 83.

12

Rec. Doc. 85.

2

II. Parties’ Arguments
A.

Defendants’ Arguments in Support of Summary Judgment
Defendants contend that they are entitled to summary judgment on Shields’ claims of race

discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act and the
Louisiana Employment Discrimination Act, as well as her claims of interference with Family
Medical Leave Act (“FMLA”) rights and retaliation for use of FMLA leave, on the grounds that
there are no genuine issues of material fact and Defendants are entitled to judgment as a matter of
law. 13
First, Defendants contend that any federal claims arising out of allegations taking place
prior to May 8, 2014, or 300 days before Shields filed her charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), are time-barred pursuant to Title VII. 14
Defendants also assert that state claims of race discrimination based upon conduct prior to
February 3, 2014 are prescribed under the Louisiana Employment Discrimination Law, Louisiana
Revised Statute 23:303(D). 15
Second, Defendants assert that Shields is “unable to establish a reverse race discrimination
claim.” 16 Defendants contend that under the McDonnell Douglas 17 framework, Shields must first
establish a prima facie case of discrimination. 18 Defendants argue that Shields cannot do so as she

13

Rec. Doc. 63 at 1.

14

Rec. Doc. 63-1 at 18.

15

Id. at 19.

16

Id. at 20.

17

McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973).

18

Rec. Doc. 63-1 at 20.

3

must show that: (1) she is a member of a protected group; (2) she was qualified for the position
held; (3) she was discharged from the position; and (4) she was replaced by someone outside of
the protected group or others similarly situated were treated more favorably. 19 Defendants
acknowledge that Shields meets the first prong as she is Caucasian and the third prong as she was
terminated from her employment. 20 However, Defendants assert that Shields cannot show that she
was qualified for the position or that she was replaced by someone outside of the protected group
or that others similarly situated were treated more favorably. 21
Defendants assert that even if Shields could establish a prima facie case of race
discrimination, Defendants are entitled to summary judgment because they had legitimate, nondiscriminatory reasons for terminating her. 22 Defendants assert that Shields was terminated for
making racially insensitive remarks to another employee, Keli Nees (“Nees”), for her long-term
poor performance, and the lack of support of Executive Director Dillon. 23 Defendants argue that
there is no evidence that the reasons given were a pretext for discrimination. 24 Defendants contend
that Shields must rebut each of Defendants’ nondiscriminatory reasons in order to survive
summary judgment. 25 Defendants argue that the decision to terminate Shields was made after a
good-faith investigation of the allegations made by Nees and after Acting General Counsel had

19

Id. (citing McDonnell Douglas, 411 U.S. at 802).

20

Id. at 21.

21

Id.

22

Id.

23

Id.

24

Id. at 23.

25

Id. (citing Jackson v. Watkins, 619 F.3d 463, 467 (5th Cir. 2010)).

4

interviewed Shields and the witnesses and concluded that the allegations were credible. 26
Furthermore, Defendants contend that even if they were incorrect in concluding that Shields made
racially offensive remarks, Shields still cannot prove pretext because even an employer’s incorrect
conclusion of a policy violation is a legitimate non-discriminatory reason for an adverse
employment decision. 27 Defendants assert that because Shields cannot present competent
summary judgment evidence to show that race was a motivating factor in the decision to terminate
her, she cannot raise a genuine issue of material fact. 28
Third, Defendants contend that they are entitled to summary judgment on Shields’
harassment and racially hostile work environment claim. 29 Defendants assert that Shields must
show that: (1) she belongs to a protected group; (2) she 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; and (5) the employer knew or should have known of
the harassment in question and failed to take prohibitive action. 30 Defendants argue that none of
the behavior that Shields complains of had racial connotations or affected the terms and conditions
of her employment, and the individuals who made the decision to terminate Shields were unaware
of any of Shields’ allegations. 31

26

Id.

27

Id. at 24 (citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995)).

28

Id. at 26.

29

Id.

30

Id. (citing Benoit v. MedVance Inst. of Baton Rouge, No. 3:09-0223, 2011 U.S. Dist. LEXIS 24821
(W.D. La. Mar. 10, 2011)).
31

Id. at 27.

5

Fourth, Defendants contend that Shields cannot establish a prima facie case of race
retaliation, which, they assert, requires a plaintiff to show that: (1) she participated in statutorily
protected activity as described in Title VII; (2) an adverse employment action occurred; and (3) a
causal connection exists between the protected activity and the adverse action. 32 Defendants assert
that Shields did not engage in any protected activity and cannot show a causal link between her
termination and any alleged protected activity. 33
Fifth, Defendants assert that Shields cannot establish that Defendants interfered with her
FMLA rights. 34 Defendants aver that in order to prevail on a claim for FMLA interference, a
plaintiff must prove that: (1) she was an eligible employee; (2) the employer “interfered” with her
rights under the FMLA; and (3) she was prejudiced by the interference. 35 Defendants contend that
there was no interference with Shields’ FMLA rights because she received all of the FMLA leave
she requested and she returned to her position as Director of Development with the ability to work
at home. 36
Sixth, Defendants assert that Shields cannot establish a cause of action for FMLA
retaliation. 37 Defendants contend that in order to establish a prima facie case of retaliation, Shields
must show that she: (1) engaged in protected activity under the FMLA; (2) suffered an adverse

32

Id. at 28 (citing Mota v. Univ. of Tex., Houston Health Science Ctr., 261 F.3d 512, 519 (5th Cir. 2001)).

33

Id.

34

Id.

35

Id. at 29 (citing Knox v. City of Monroe, No. 07-606, 2009 U.S. Dis. LEXIS 104, at *13–14 (W.D> La.
Jan. 8, 2009)).
36

Id. (citing Rec. Doc. 63-2 at 66, 93–94).

37

Id.

6

employment action; and (3) the adverse action was taken because she took FMLA leave or another
employee who didn’t take FMLA leave was treated more favorably. 38 Defendants assert that there
is no evidence that Shields was treated less favorably than similarly situated employees who did
not take FMLA leave. 39 Furthermore, Defendants contend that even if Shields could establish a
prima facie case, Defendants have articulated legitimate, nondiscriminatory reasons for her
termination, including Shields’ racially insensitive remarks to Nees, Shields’ long-term poor
performance, and her lack of support of Executive Director Dillon. 40
B.

Plaintiff’s Arguments in Opposition to the Motion for Summary Judgment
In opposition, Shields asserts that she has established a prima facie case of race

discrimination and retaliation. 41 Shields states that she does not assert a separate and distinct claim
for harassment relating to Dillon’s mistreatment. 42 Shields contends that she satisfies the second
element of a prima facie case of race discrimination, that she was qualified for her position, because
she held her position for more than six years and her performance evaluations for the three years
preceding her termination demonstrate that she was qualified. 43 Shields further argues that she was
replaced by someone outside of the protected class and all of other Directors of Development that
were supervised by Dillon were African-American. 44

38

Id. (citing Lushute v. Louisiana, 479 F. App’x 553, 554 (5th Cir. 2012)).

39

Id. at 31.

40

Id. at 32.

41

Rec. Doc. 74 at 2.

42

Id. at 2 n.1.

43

Id. at 3.

44

Id. at 4.

7

Shields also argues that Defendants’ proffered reasons for her termination are “false,
unworthy of credence, and pretextual.” 45 Shields contends that her sworn testimony directly
contradicts Defendants’ contention that the decision to terminate was made only after Victor
LaPuma (“LaPuma”) completed his investigation. 46 Shields asserts that she overhead Dillon state
on October 30, 2014, that they had already picked a date for her termination. 47 Shields also argues
that the declaration of Director of Human Resources, Traci McAuliffe (“McAuliffe”) does not
support Defendants’ assertion that the decision to terminate Shields was made in good faith after
a full investigation. 48
Turning to Defendants’ assertion that they terminated Shields for poor performance,
Shields asserts that the evidence establishes that Shields’ termination had nothing to do with her
performance. 49 Shields points to the testimony of Dillon who asserted that, at most, the alleged
performance deficiencies would have resulted in a 30-day performance improvement plan in the
absence of Nees’ false allegations. 50 Shields also asserts that her performance evaluations directly
contradict Defendants’ assertions that her performance was “terrible” and warranted termination. 51
Shields also avers that Defendants’ contention that Shields was terminated due to a lack of support

45

Id.

46

Id. at 5.

47

Id. at 6.

48

Id. at 7.

49

Id. at 7–8.

50

Id. at 8.

51

Id.

8

of Executive Director Dillon is contradicted by the record as Dillon denied having any involvement
in the decision to terminate Shields. 52
Shields contends that although she is not required to submit any further evidence of
discriminatory animus, she asserts that: (1) she was only one of two or three Caucasian employees
out of 40-50 total employees at Defendants’ Louisiana location; (2) Dillon made derogatory
comments regarding the ability of Caucasian individuals to understand Defendants’ clientele; and
(3) one of Defendants’ board members believed that Dillon cultivated an “us versus them”
mentality between Caucasians and African-Americans. 53 Shields also asserts that even if Dillon
did not play a significant role in Shields’ termination, Defendants can be held liable for Dillon’s
discriminatory and retaliatory conduct under a “cat’s paw” theory pursuant to the Supreme Court
case Staub v. Proctor Hospital. 54
Shields also contends that she has established a prima facie case for FMLA retaliation and
FMLA interference. 55 Shields contends that even though she was out for more than 37 days in
2014, Defendants did not adjust her metrics and while she was out on FMLA-protected leave in
2014, LaPuma recommended that she receive a written warning for performance reasons. 56 Shields
asserts that she told Dillon that her FMLA leave was interfering with her ability to perform all of
her job responsibilities and that Dillon stated that Shields would be required to meet the metrics

52

Id. at 10.

53

Id. at 11–12.

54

Id. at 14 (citing 562 U.S. 411 (2011)).

55

Id. at 15.

56

Id. at 16 (citing Rec. Doc. 74-7 at 21–25; Rec. Doc. 74-9 at 20–21).

9

“irrespective of any excuses.” 57 Shields also contends that a draft performance improvement plan,
that was never given to Shields, stated that Shields needed to be working day and night to catch
up for visits that didn’t happen earlier in the year. 58 Shields asserts that given this evidence, there
is at least a genuine issue of material fact regarding whether she was treated less favorably, or even
terminated, for exercising her right to FMLA-protected leave and therefore summary judgment is
inappropriate. 59 Finally, Shields contends that the McDonnell Douglas burden-shifting scheme is
unworkable and should be overturned. 60
C.

Defendants’ Arguments in Further Support of Summary Judgment
In reply, Defendants reassert their contention that Shields cannot establish a prima facie

case of race discrimination because she was not qualified for her position, pointing to the Vice
President of Development’s comment that Shields’ numbers were “terrible” and the assertion of
Associate Vice President of Development, Lisa Hukill (“Hukill”), that she had more than ten
conversations with Shields about her insufficient numbers on the metrics. 61 Defendants contend
that even if the Court believes that Shields has met her burden of establishing a prima facie case,
she cannot prove that the proffered legitimate reasons for termination were false and actually a
pretext for discrimination. 62 Defendants contend that Shields did not deny that she made racially

57

Id. at 17 (citing Rec. Doc. 74-9 at 27–28).

58

Id. (citing Rec. Doc. 74-2 at 11–12).

59

Id.

60

Id.

61

Rec. Doc. 83 at 2 (citing Elliott v. Grp. Med. & Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983)).

62

Id. at 3.

10

insensitive remarks, had missed the metrics for many years in a row, or that LaPuma investigated
the allegations by Nees. 63
Defendants contend that Shields’ assertion that she overheard a conversation during which
Dillon allegedly decided to terminate Shields is inadmissible hearsay which cannot be used to
defeat summary judgment. 64 Defendants also assert that although Shields alleges that Dillon was
part of the decision to terminate Shields, there is no evidence that he had any racial animus toward
Shields or Caucasians in general and Dillon actually protected Shields from discipline when other
individuals supported termination or disciplinary action much earlier. 65 Furthermore, Defendants
contend that if Dillon was the person who made the decision to terminate Shields, the inference of
discrimination would be weakened because it is undisputed that he hired her and there is a
presumption that discrimination is not the motive behind a discharge when a plaintiff is discharged
by the same person who hired them. 66
Next, Defendants contend that Shields has not cited a single rule or binding precedent to
support her argument that Defendants cannot rely upon the outcome of LaPuma’s investigation
because it was not produced to Shields. 67 Defendants assert that there is no evidence to support
Shields’ allegation that the investigation was a sham to cover up discrimination. 68 Defendants also
contend that even if the results of the investigation were not admissible, they would prevail because

63

Id.

64

Id. at 4.

65

Id. at 5 (citing Rec. Doc. 83-4 at 2; Rec. Doc. 83-5 at 4; Rec. Doc. 83-8 at 2; Rec. Doc. 83-1 at 7).

66

Id. (citing Brown v. CSC Logic Inc., 82 F.3d 651, 658 (5th Cir. 1996)).

67

Id. at 6.

68

Id. at 7.

11

whether LaPuma came to a correct or incorrect conclusion after his investigation is irrelevant
because an employer’s incorrect conclusion of employee wrongdoing is a legitimate, nondiscriminatory reason for an adverse employment decision and does not establish an illegal
discriminatory motivation. 69
Turning to the FMLA retaliation and interference claims, Defendants assert that Shields
has failed to show that she was denied any FMLA leave or retaliated against for taking such
leave. 70 Defendants contend that Shields was not penalized for taking FMLA leave and Lisa Hukill
took the fact of Shields’ leave into consideration in evaluating her performance; however, Hukill
did not reduce the metrics because Shields was so far behind she would have been below
expectations even for an employee who worked only six months out of the year. 71 Finally,
Defendants contend that Shields’ racial harassment and retaliation claims should be dismissed
because she has abandoned them in not addressing the racial harassment claim and failing to
articulate what alleged protected activity she engaged in to establish her race retaliation claim. 72
D.

Plaintiff’s Arguments in Further Opposition to the Motion for Summary Judgment
In response to Defendants’ argument that Shields was not qualified for her job, Shields

asserts that she need only show that she possessed the basic skills necessary to perform her job.73
Shields asserts that she had six years of experience working in her position prior to her discharge,

69

Id.

70

Id.

71

Id. at 10 (citing Rec. Doc. 83-4 at 3–4).

72

Id.

73

Rec. Doc. 85 at 1 (citing Collins v. Cohen Pontani Lieberman & Pavane, No. 04-cv-8983, 2008 U.S.
Dist. LEXIS 54047, at *28 (S.D.N.Y. July 30, 2008)).

12

had received complimentary performance reviews for the last three years of her employment, and
had no performance warnings aside from one in 2011. 74
Shields reasserts her contention that the investigation by LaPuma is inadmissible and
should be disregarded in its entirety because Defendants obstructed Shields’ attempts to obtain
legitimate discovery. 75 Shields asserts that in the absence of LaPuma’s investigation, there is no
support for the decision to discharge Shields based upon alleged racist comments because the
decisionmakers relied upon the findings of LaPuma, Acting General Counsel. 76 Shields also
contends that Dillon’s statement that Shields was going to be terminated before LaPuma’s
investigation was complete is admissible and, even if it were not admissible, there is other evidence
demonstrating that the decision to terminate Shields was made before the completion of the
investigation. 77
III. Applicable Law
A.

Legal Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 78 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or

74

Id. at 2.

75

Id. at 3.

76

Id. at 5.

77

Id. at 6.

78

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

13

weighing the evidence.” 79 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” 80
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law. 81 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial. 82
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact. 83 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports her claims. 84 To withstand a motion for summary judgment, a plaintiff must show that
there is a genuine issue for trial by presenting evidence of specific facts. 85 The nonmovant’s burden
of demonstrating a genuine issue of material fact is not satisfied merely by creating “some
metaphysical doubt as to the material facts,” “by conclusory allegations,” by “unsubstantiated

79

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

80

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

81

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

82

See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

83

Celotex, 477 U.S. at 323.

84

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).

85

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–
49 (1996)).

14

assertions,” or “by only a scintilla of evidence.” 86 Rather, a factual dispute precludes a grant of
summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for
the nonmoving party. Hearsay evidence and unsworn documents that cannot be presented in a form
that would be admissible in evidence at trial do not qualify as competent opposing evidence. 87
B.

McDonnell Douglas Burden-Shifting Framework
The burden-shifting framework established in McDonnell Douglas Corp. v. Green governs

claims alleging discrimination under Title VII, as well as allegations of retaliation. 88 To survive
summary judgment in a case under the McDonnell Douglas framework, a plaintiff must first
establish a prima facie case of discrimination. 89 “To establish a prima facie case, a plaintiff need
only make a very minimal showing.” 90 If the plaintiff can establish a prima facie case, the burden
will shift to the defendant to articulate a legitimate, nondiscriminatory purpose for an adverse
employment action. 91 The defendant must point to admissible evidence in the record, 92 but the
burden is one of production, not persuasion. 93 The defendant is not required to show that the
employment decision was proper, only that it was not discriminatory. 94 “[E]ven an incorrect belief

86

Little, 37 F.3d at 1075.

87

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).

88

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Munoz v. Seton Healthcare, Inc., 557 F.
App’x 314, 321 (5th Cir. 2014)).
89

McDonnell Douglas Corp., 411 U.S. at 802; see also Mendoza v. Helicopter, 548 F. App’x 127, 129 (5th
Cir. 2013) (applying the McDonnell Douglas framework to discrimination and retaliation claims).
90

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting Thornbrough v. Columbus &
Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985)).
91

Id.

92

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).

93

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).

94

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007). See also Perez v. Region 20

15

that an employee’s performance is inadequate constitutes a legitimate, non-discriminatory reason”
for an adverse employment action. 95
If the defendant satisfies its burden of production, the burden shifts back to the plaintiff to
show that any non-discriminatory purposes offered by the defendant are merely a pretext for
discrimination. 96 Plaintiff can do this by presenting evidence of disparate treatment or
demonstrating that the proffered explanation is false or “unworthy of credence.” 97
In one paragraph, Shields asserts that the McDonnell Douglas framework is “unworkable
and should be overturned.” 98 In support, Shields cites a Southern District of New York case, a
Tenth Circuit case, and a concurring opinion from a Seventh Circuit case. 99 The Court is bound by
the Supreme Court precedent in McDonnell Douglas. Accordingly, the Court follows this
framework.
IV. Analysis
A.

Whether Defendants are Entitled to Summary Judgment on Shields’ Race
Discrimination Claims Because They Are Time-Barred
Defendants assert that they are entitled to summary judgment on Shields’ claims of race

discrimination pursuant to Title VII and Louisiana’s Employment Discrimination Law

Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.
1995) (“The question is not whether an employer made an erroneous decision; it is whether the decision was made
with discriminatory motive.”).
95

Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991).

96

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

97

Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).

98

Rec. Doc. 74 at 17–18.

99

Id. at 18 (citing Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring); Wells v.
Colo. DOT, 325 F.3d 1205, 1221 (10th Cir. 2003); Lapsley v. Columbia Univ.-Coll. Of Physicians & Surgeons, 999
F. Supp. 506, 513–14 (S.D.N.Y. 1998)).

16

(“LEDL”). 100 Title VII makes it “an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment because of such individual’s race . . . .” 101 A plaintiff may establish a
violation of Title VII by proving that discrimination has created a hostile or abusive working
environment, 102 or by proving disparate treatment on the basis of race. 103 Louisiana’s Employment
Discrimination Law, Louisiana Revised Statute § 23:301 et seq., is “substantively similar” to Title
VII, and Louisiana courts routinely look to federal jurisprudence for guidance in interpreting
Louisiana discrimination laws. 104 Because the Louisiana Supreme Court has addressed state-law
discrimination claims in light of federal Title VII case law, 105 and because the Court is not aware
of any statutory or Louisiana Supreme Court authority suggesting that the Louisiana Supreme
Court would follow a different approach in this case, this Court’s Title VII analysis, below, applies
to Shields’ employment discrimination claims under the LEDL as well.
Defendants first assert that any federal race discrimination claims arising out of alleged
acts prior to May 8, 2014, or 300 days prior to the filing of Shields’ charge of discrimination, are
time-barred pursuant to Title VII. 106 Defendants also contend that any race discrimination claims

100

Rec. Doc. 63-1 at 18.

101

42 U.S.C. § 2000e–2(a)(1).

102

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986).

103

Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001).

104

McCoy v. City of Shreveport, 492 F.3d 551, 556 n.4 (5th Cir. 2007) (citing Trahan v. Rally’s
Hamburgers, Inc., 96-1837 (La. App. 1 Cir. 6/20/97); 696 So. 2d 637, 641).
105

King v. Phelps Dunbar, L.L.P., 98-1805 (La. 6/4/99); 743 So. 2d 181, 187 (“Louisiana courts have
looked to federal jurisprudence to interpret Louisiana discrimination laws.”).
106

Rec. Doc. 63-1 at 18.

17

pursuant to the Louisiana Employment Discrimination Law (“LEDL”) based upon allegations
prior to February 3, 2014 are prescribed. 107 Shields does not respond to these arguments.
Pursuant to 42 U.S.C. § 2000e-5(e)(1), a Title VII plaintiff must file a charge with the
Equal Employment Opportunity Commission (EEOC) within 300 days “after the alleged unlawful
employment practice occurred.” 108 The Supreme Court has held that the statute precludes recovery
for discrete acts of discrimination or retaliation that occur outside the statutory time period. 109
Shields filed her EEOC charge on March 4, 2015. 110 Accordingly, to the extent that Plaintiff claims
race discrimination pursuant to Title VII based upon any discrete acts of discrimination that
occurred prior to May 8, 2014, her claim(s) are time-barred.
Louisiana Revised Statute § 23:303(D) provides that a cause of action pursuant to the
Louisiana Employment Discrimination Law:
shall be subject to a prescriptive period of one year. However, this one-year period
shall be suspended during the pendency of any administrative review or
investigation of the claim conducted by the federal Equal Employment Opportunity
Commission or the Louisiana Commission on Human Rights. No suspension
authorized pursuant to this Subsection of this one-year prescriptive period shall last
longer than six months.
Therefore, the maximum prescriptive period is eighteen months. The Supreme Court of Louisiana
has held that the prescriptive period in such an action “commences the day the injury or damage

107

Id. at 19.

108

42 U.S.C. § 2000e-5(e)(1); Hartz v. Adm’rs of Tulane Educ. Fund, 275 F. App’x 281, 287 (5th Cir.

109

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).

110

Rec. Doc. 63-5 at 12.

2008).

18

is sustained.” 111 Shields filed her complaint on August 4, 2015. 112 Accordingly to the extent that
Shields’ race discrimination claims pursuant to the LEDL are based upon allegations of
discrimination that occurred prior to February 3, 2014, those claims are prescribed.
B.

Whether Defendants are Entitled to Summary Judgment on Shields’ Claim That She
Was Terminated As Retaliation for Exercising Rights Pursuant to Title VII
To establish a prima facie case of retaliation under the traditional McDonnell Douglas

framework, “the plaintiff must establish that: (1) [she] participated in an activity protected by Title
VII; (2) [her] employer took an adverse employment action against [her]; and (3) a causal
connection exists between the protected activity and the adverse employment action.” 113 An
employee engages in activity protected by Title VII when the employee has “opposed any practice
made an unlawful employment practice” by Title VII or “made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing” under Title VII. 114
Shields does not make any attempt to differentiate her race discrimination claim from her
retaliation claim pursuant to Title VII, nor does Shields articulate how she has stated a prima facie
case of retaliation. However, Shields presents evidence through her deposition that she complained
in 2009 about the lack of diversity and the “racial discrimination she was feeling.” 115 Although
Shields brings this claim asserting that she was ultimately terminated, Shields makes no connection

111

Eastin v. Entergy Corp., 2003-1030 (La. 2/6/04); 865 So. 2d 49, 53 (citing La. Civ. Code art. 3492).

112

Rec. Doc. 1.

113

McCoy, 492 F.3d at 557 (5th Cir. 2007) (citing Banks v. E. Baton Rouge Par. Sch. Bd., 320 F.3d 570,
575 (5th Cir. 2003); Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)); see also Ion v. Chevron USA, Inc., 731 F.3d
379, 390 (5th Cir. 2013) (applying the same test in the FMLA context).
114

42 U.S.C. § 2000e-3(a); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).

115

Rec. Doc. 74-5 at 9–10.

19

between any complaint she made in 2009 and her termination five years later in 2014. Shields
makes no assertion that she suffered any adverse employment action as a result of her 2009
complaints and, in fact, states that she never heard back from anyone in Human Resources
regarding her complaints and specifically states that “[n]othing was done” with regard to any
complaints. 116 Because Shields has not identified any adverse employment action taken against
her as a result of any activity protected pursuant to Title VII, Shields has failed to establish a prima
facie case of retaliation pursuant to Title VII. Accordingly, Defendants are entitled to summary
judgment on this retaliation claim. To the extent that Shields brings a race retaliation claim
pursuant to the LEDL, Defendants are entitled to summary judgment on this claim as well. 117
C.

Whether Defendants Are Entitled to Summary Judgment on Shields’ Hostile Work
Environment Claim
Defendants also move for summary judgment on Shields’ “harassment and racially hostile

work environment claim.” 118 In her complaint, Shields asserts that she brings a “Race
Discrimination/Harassment” claim against Defendants pursuant to Title VII and Louisiana’s
Employment Discrimination Law. 119 However, in her opposition to the motion for summary
judgment, Shields states that she is not bringing a separate and distinct claim for harassment
relating to Dillon’s alleged mistreatment, but rather those allegations are part of her discrimination

116

Id. at 10, 15.

117

The Fifth Circuit has explained that “[r]etaliation based on race does not fall within the scope of
Louisiana Employment Discrimination Law.” Corley v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt., 498
F. App’x 448, 451 (5th Cir. 2012) (per curiam).
118

Rec. Doc. 63-1 at 26.

119

Rec. Doc. 1 at 6.

20

and retaliation disparate treatment claims. 120 Accordingly, the Court grants the motion for
summary judgment regarding any hostile work environment claim Shields may have had.
D.

Whether Defendants Are Entitled to Summary Judgment on Shields’ FMLA
Interference Claim
The FMLA prohibits employers from “interfering with, restraining, or denying the exercise

of (or attempts to exercise) any rights provided by the Act” and retaliating against employees who
exercise FMLA rights. 121 To establish a prima facie FMLA interference case, a plaintiff must show
that: (1) she was an eligible employee; (2) the defendant was an employer subject to the FMLA’s
requirements; (3) she was entitled to leave; (4) she gave proper notice of her intention to take
FMLA leave; and (5) the defendant denied her the benefits to which she was entitled under the
FMLA. 122 Furthermore, employees bear the burden of proving a real impairment of their FMLA
rights and resulting prejudice. 123 Moreover, “FMLA’s remedial scheme requires an employee to
prove prejudice as a result of the employer’s lapse; the employee may not expand the statute’s
coverage as a penalty for an employer’s technical compliance shortcoming.” 124 Even where a
reasonable jury could find that an employer interfered, restrained or denied the exercise of FMLA
rights, an employee must still point to evidence that she lost compensation or benefits by reason

120

Rec. Doc. 74 at 2.

121

29 C.F.R. § 825.220.

122

See Lanier v. Univ. of Texas Sw. Med. Ctr., 527 F. App'x 312, 316 (5th Cir. 2013).

123

Jones v. Children’s Hosp., 58 F. Supp. 3d 656, 668 (E.D. La. 2014) (Morgan, J.) (citing Lubke v. City of
Arlington, 455 F.3d 489, 497 (5th Cir. 2006)).
124

Lubke, 455 F.3d at 497.

21

of the violation, sustained other monetary losses as a direct result of the violation, or suffered some
loss in employment status such that equitable relief is appropriate. 125
Shields contends that she has established a prima facie case of FMLA interference and
FMLA retaliation. 126 However, Shields does not distinguish between her claim for FMLA
interference and her claim for FMLA retaliation. Shields makes no argument that she was denied
any FMLA leave or that she was discouraged from taking any FMLA leave. Shields does not
identify any lost compensation or benefits by reason of any violation, any monetary losses as a
direct result of the violation, or loss in employment status. Therefore, Shields’ argument appears
to be not that she was denied any FMLA benefits or prevented from using any FMLA benefits, but
rather that she was retaliated against for using her benefits. Accordingly, as Shields has not
identified any interference, restraint or denial of her FMLA rights, the Court grants summary
judgment on Shields’ interference claim.
E.

Whether Defendants Are Entitled to Summary Judgment on Shields’ Claims of Race
Discrimination and FMLA Retaliation
1.

Whether Shields Has Established a Prima Facie Case of FMLA Retaliation
and Race Discrimination
a.

FMLA Retaliation

To establish a prima facie case of retaliation under the traditional McDonnell Douglas
framework, “the plaintiff must establish that: (1) [she] participated in an activity protected by [the
FMLA]; (2) [her] employer took an adverse employment action against [her]; and (3) a causal

125

Jones, 58 F. Supp. 3d at 668–69 (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90
(2002); 29 U.S.C. § 2617(a)(1)).
126

Rec. Doc. 74 at 15.

22

connection exists between the protected activity and the adverse employment action.” 127 Shields
does not articulate how she has established the elements of a prima facie case of retaliation; rather,
she asserts that there is “at least a fact question as to whether Plaintiff was treated less favorably
(and even terminated) for exercising her right to FMLA-protected leave.” 128 Nevertheless, Shields
has submitted evidence that she: (1) took FMLA leave; 129 (2) was terminated; 130 and (3) that her
supervisor, Dillon, and Associate Vice President of Development, Lisa Hukill, spoke negatively
about Shields’ performance during the time that she was taking FMLA leave, referred to her FMLA
leave as an “excuse,” and that Defendants later terminated Shields, listing “inadequate
performance” as one of the reasons. 131 Accordingly, the Court concludes that Shields has
established a prima facie case of FMLA retaliation.
b.

Race Discrimination

Shields also alleges that she was subject to disparate treatment on the basis of her race. 132
Courts analyze such discrimination claims under the McDonnell Douglas framework. 133 Under
McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case by
showing that she:

127
McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (citing Banks v. E. Baton Rouge Par.
Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003); Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)); see also Ion v.
Chevron USA, Inc., 731 F.3d 379, 390 (5th Cir. 2013) (applying the same test in the FMLA context).
128

Rec. Doc. 74 at 17.

129

Rec. Doc. 74-9 at 27.

130

Id. at 23.

131

Rec. Doc. 72- at 11–12; Rec. Doc. 74-9 at 23, 27.

132

Rec. Doc. 1 at 6.

133

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citing McDonnell Douglas, 411 U.S. at

802).

23

(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; and
(4) was replaced by someone outside [her] protected group or was treated less
favorably than other similarly situated employees outside the protected group. 134
Within the Fifth Circuit, not all negative workplace events constitute “adverse employment
actions” cognizable under Title VII. Rather, “adverse employment actions” consist of “ultimate
employment decisions such as hiring, firing, demoting, promoting, granting leave, and
compensating.” 135
Here, Defendants concede that Shields meets the first and third prongs of the prima facie
case because she is Caucasian and her employment was terminated. 136 Defendants argue, however,
that Shields cannot meet the second prong of the case because she was not qualified for the
position, or the fourth prong, because her position remained open for four to five months before
an African-American man was hired. 137 Defendants argue that Shields was not qualified for her
position because she refused to comply with the performance metrics and had a history of poor
performance. 138 The Fifth Circuit has held that in order for a plaintiff to show that she is qualified
for a position, she must demonstrate only that she continued to possess the necessary qualifications
for her job at the time of the adverse action. 139 The Fifth Circuit in Bienkowski v. American Airlines
explained “[b]y this we mean that plaintiff had not suffered physical disability or loss of a

134

Id. (citing Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005)).

135

Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014).

136

Rec. Doc. 63-1 at 21.

137

Id.

138

Id.

139

Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1505–06 (5th Cir. 1988).

24

necessary professional license or some other occurrence that rendered [her] unfit for the position
for which [s]he was hired.” 140 Shields has submitted evidence of her performance evaluations over
the six years that she worked for Defendants, including from 2014, where it was indicated that she
had met her overall goal and job performance expectations. 141 Defendants do not argue that Shields
suffered some kind of change that rendered her unfit for the position; rather, they assert only that
they were no longer satisfied with her work. Accordingly, Shields has presented evidence that she
was “qualified” for her position.
Defendants also argue that Shields cannot establish a prima facie case of discrimination
because she was replaced by an African-American employee months after she was terminated. 142
In Dillon’s deposition, he testified that an African-American man was hired to replace Shields.143
Defendants cite no case law to support their argument that a couple-month period between the
termination of the plaintiff and the replacement being hired undermines the existence of a prima
facie case. Defendants also argue that the fact that the majority of the Directors of Development
are Caucasian and that the members of management who terminated Shields are also Caucasian
undermines the existence of a prima facie case of discrimination. 144 Defendants do not cite any
authority to support this proposition. Moreover, Shields appears to dispute that the majority of the
Directors of Development were Caucasian at the time of her termination 145 and there is no evidence

140

Id. at 1056 n.3.

141

Rec. Doc. 74-3 at 15.

142

Rec. Doc. 63-1 at 21–22.

143

Rec. Doc. 74-2 at 10.

144

Rec. Doc. 63-1 at 21–22.

145

Rec. Doc. 74 at 4.

25

in the record regarding the race of management team that terminated Shields. Accordingly, as it is
undisputed that Shields is a member of a protected group and was terminated from her
employment, and because she has presented evidence that she was qualified for her position and
was replaced by someone outside of her protected group, the Court concludes that Shields has
established a prima facie case of race discrimination.
2.

Whether Defendants Have Proffered Nondiscriminatory and Nonretaliatory
Reasons for Shields’ Termination

As Shields has established a prima facie case for race discrimination and FMLA retaliation,
the burden shifts back to Defendants to put forth a legitimate, nondiscriminatory and nonretaliatory
reason for Shields’ termination. 146 Defendants assert in their motion that there are three legitimate,
nondiscriminatory and nonretaliatory reasons for Shields’ termination: (1) Shields made “racially
insensitive remarks to Keli Nees”; (2) Shields had “long-term poor performance”; and (3) there
was a “lack of support of the Executive Director.” 147 Defendants have presented Shields’
termination letter, in which Defendants state that Shields is being terminated for “workplace
misconduct, lack of support of the Executive Director, inadequate performance, including a lack
of cultural competency.” 148 Plaintiff, in her opposition to Defendants’ motion for summary
judgment, asserts that “Defendants have confirmed that the alleged ‘workplace misconduct’ and
‘lack of cultural competency’ refer to the allegations made by Ms. Nees and the investigation (or
lack thereof) purportedly conducted by Mr. LaPuma.” 149 The three reasons articulated by

146

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

147

Rec. Doc. 63-1 at 22.

148

Rec. Doc. 63-5 at 11.

149

Rec. Doc. 74 at 4.

26

Defendants in their motion for Shields’ termination do not align perfectly with the reasons
articulated in Shields’ termination letter. However, because Defendants assert that they are entitled
to summary judgment based upon the reasons listed in the motion, and because Shields structures
her opposition based upon these proffered reasons, the Court will address only Defendants’ reasons
for termination as articulated in Defendants’ motion.
3.

Whether Shields Has Met Her Burden of Demonstrating that Defendants’
Proffered Reasons are Pretext for Race Discrimination and FMLA Retaliation

As Defendants have met their burden of production of putting forth nondiscriminatory and
nonretaliatory reasons for Shields’ termination, the burden shifts back to Shields to show that the
reasons offered by Defendants are merely a pretext for race discrimination and FMLA
retaliation. 150 Shields may prove pretext either through evidence of disparate treatment or by
showing that Defendants’ proffered explanation is false or “unworthy of credence.” 151 The Court
will address each of Defendants’ proffered reasons in turn.
a.

Racially Insensitive Remarks

Defendants first assert that Shields was terminated for making racially insensitive remarks
to another employee of Defendants, Keli Nees (“Nees”). 152 In determining whether an employer
engaged in discrimination in using allegations of misconduct lodged by another employee, “[t]he
real issue is whether the employer reasonably believed the employee’s allegation and acted on it
in good faith, or to the contrary, the employer did not actually believe the co-employee’s allegation

150

Leal v. BFT, Ltd. P’ship, 423 F. App’x 476, 480 (5th Cir. 2011).

151

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

152

Rec. Doc. 63-1 at 22.

27

but instead used it as a pretext for an otherwise discriminatory dismissal.” 153 Even an incorrect
belief that Shields made these discriminatory comments is a legitimate reason. 154
In this case, however, Defendants do not contend that they relied on Nees’ statements. In
fact, Defendants assert that “all decision makers testified that they made the decision to terminate
Plaintiff because they relied on the findings by acting General Counsel Victor LaPuma that
Plaintiff made racially insensitive remarks to Keli Nees, which were in stark contrast to Boys
Town’s Mission to help troubled children of all ethnicities and religions and a violation of its zero
tolerance discrimination policy.” 155 Executive Vice President Dan Daly (“Daly”) testified
regarding the investigation, stating:
The reason we conduct an investigation is to ascertain the likelihood or lack of
likelihood certain events occurred. And I don’t know that we can ever get the kind
of corroboration that a trial judge would want to have. But on some we believe that
Ms. Shields had been at minimum extremely indiscreet in her conversations with
Ms. Nees. And I’m talking about extremely racially indiscreet. That’s why we took
the action we took. 156
When Daly was asked if Defendants had reached that conclusion because of LaPuma’s
investigation, he responded, “Yeah, I have to rely upon the investigator. I don’t conduct the
investigation personally.” 157
However, Shields has presented evidence that Defendants actually had made the decision
to terminate Shields prior to the conclusion of the investigation. In her deposition, Shields testified

153

Waggonner v. City of Garland, Tex., 987 F.2d 1160, 1165 (5th Cir. 1993).

154

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007).

155

Id. at 32.

156

Rec. Doc. 63-3 at 53.

157

Id.

28

that on October 30, 2014, she heard Dillon state that Defendants “had already picked the date out
for the termination.” 158 Furthermore, Shields presents the notes of Traci McAuliffe from October
31, 2014 in which McAuliffe refers to termination. 159 Shields was suspended on October 31, 2014
and terminated on November 7, 2014. 160 Therefore, Shields has raised a genuine issue of material
fact regarding whether Defendants decided to terminate Shields prior to conducting an
investigation into whether the allegations lodged by Nees were true and, therefore, has raised a
genuine issue of material fact regarding whether Defendants’ proffered reason, racially insensitive
comments, is false or unworthy of credence.
b.

Poor Performance

Defendants also assert that Shields was terminated for her long-term poor performance. 161
Defendants have presented the testimony of: (1) Shann McKeever, one of the supervisors of the
executive directors, who testified that Shields was an underperformer; 162 (2) Dillon, the Executor
Director, who testified that Shields’ work was “almost always substandard when we looked at the
metrics;” 163 (3) Dan Daly, another supervisor of the executive directors, who testified that he told
Dillon to give Shields performance warnings and to put her on a performance improvement plan
in 2014; 164 (4) Traci McAuliffe, who testified that in 2014, a performance improvement plan for

158

Rec. Doc. 74-5 at 13.

159

Rec. Doc. 74-9 at 24–25.

160

Rec. Doc. 63-5 at 11; Rec. Doc. 74-9 at 22.

161

Rec. Doc. 63-1 at 22.

162

Rec. Doc. 63-2 at 2.

163

Id. at 104.

164

Rec. Doc. 63-3 at 51.

29

Shields was actually drafted along with a written warning, although neither were sent to Shields;165
and (5) Lisa Hukill, who testified that she had more than ten meetings with Shields regarding her
performance metrics, and testified that if she had been Shields’ supervisor, she would have
terminated her for her performance. 166
Shields contends that Dillon’s testimony, Shields’ performance on her evaluations, and the
performance metrics that Defendants rely upon all establish that her discharge had nothing to do
with her performance. 167 Shields submits the deposition of Dillon, in which he stated that if
performance was the issue, there probably would have been a 30-day performance improvement
plan, after which Shields was evaluated before a decision was made to terminate. 168 Shields also
cites Dillon’s testimony in which he stated it would have been premature to say that Shields would
have been terminated due to performance. 169 Shields also asserts that her performance evaluations
directly contradict Defendants’ contentions that her performance was poor and warranted
termination. 170 Shields contends that she received the second-highest possible score on her
performance evaluations in 2009 and 2010, she received her only performance warning in 2011,
her 2012 performance evaluation states that she had made “some significant strides toward moving
the Site’s development efforts in a positive direction,” she received the second-highest possible
score in her 2013 evaluation, and she received a “met expectations” score in her 2014

165

Rec. Doc. 83-7 at 6–7.

166

Rec. Doc. 83-4.

167

Rec. Doc. 74 at 8.

168

Rec. Doc. 74-2 at 14.

169

Rec. Doc. 74 at 8 (citing Rec. Doc. 74-2 at 7).

170

Id.

30

evaluation. 171 Furthermore, Shields contends that she outperformed at least half of the other
Directors of Development at a time in which she was out of work on FMLA-protected leave for
more than 37 days of the nine-month period. 172 She also asserts that the absence of any
performance metrics of Shields from the month of October 2014 also demonstrates the falsity of
Defendants’ proffered justification. 173
In this case, although Defendants submit testimony from numerous witnesses testifying to
Shields’ poor performance over the years, Shields has submitted testimony from Dillon stating that
it would be premature to terminate Shields due to poor performance. 174 In addition, although the
2014 performance evaluation reflects that Defendants believed that Shields had not met
expectations in several areas, Shields’ overall performance evaluation score reflects that she had
met expectations. 175 Accordingly, Shields has raised a genuine issue of material fact regarding
whether Defendants’ proffered reason of “long-term poor performance” for Shields’ termination
was false and unworthy of credence and therefore pretext for race discrimination and/or FMLA
retaliation.

171

Id. at 8–9.

172

Id. at 9.

173

Id.

174

Rec. Doc. 74-2 at 7.

175

Rec. Doc. 74-3 at 14.

31

c.

Lack of Support of Executive Director Dillon

Defendants also assert that Shields was terminated for “the lack of support of the Executive
Director.” 176 In the written summary Nees submitted to Defendants regarding Shields’ racially
insensitive comments, Nees asserted that “Lynn spoke terribly about Dr. Dillon. She stated that he
is nothing but a drunk and wants nothing more than to fill the board with his drunk, black friends
and none of them contribute to the organization.” 177 Defendants submit the testimony of Executive
Vice President Dan Daly who, when asked if he knew if any of the statements Shields allegedly
made to Nees regarding Executive Director Dillon were true, stated that although he didn’t
personally know whether the allegations were true, Nees was a relatively new employee who
would only know certain information that she was reporting if Shields has told her. 178 Daly asserted
that his reaction to hearing that Shields allegedly made these statements was “we have to
investigate this. And if this happened, it’s grounds for termination. And if it didn’t happen, we
move on.” 179 Therefore, it appears the facts giving rise to allegedly terminating Shields for making
racially insensitive comments occurred at the same time as the facts giving rise to Shields allegedly
being terminated for lack of support of the Executive Director, and all of the facts were being
investigated through the same investigative process.
As discussed above, Shields has presented evidence that a decision to terminate Shields
was made prior to the conclusion of the investigation. Accordingly, because Defendants assert that

176

Rec. Doc. 63-1 at 22.

177

Rec. Doc. 74-6 at 35.

178

Rec. Doc. 63-3 at 54–55.

179

Id. at 55.

32

they relied upon the investigation in making the decision to terminate Shields and Shields has
presented evidence that the decision to terminate Shields was in fact made prior to conducting an
investigation into whether the allegations lodged by Nees were true, Shields has raised a genuine
issue of material fact regarding whether Defendants’ proffered reason, lack of support of Executive
Director Dillon, was false or unworthy of credence and was therefore pretext for race
discrimination and/or FMLA retaliation.
d.

Conclusion

In order to carry her burden at the pretext stage, Shields must rebut “each
nondiscriminatory or nonretaliatory reason articulated by [Defendants].” 180 Shields has presented
evidence raising a genuine issue of material fact regarding each of Defendants’ proffered reasons
for termination. Therefore, the Court concludes that summary judgment is inappropriate on
Shields’ race discrimination and FMLA retaliation claims.
IV. Conclusion
The Court concludes that Shields has raised a genuine issue of material fact regarding
whether Defendants’ proffered reasons for her termination were pretext for race discrimination
and/or FMLA retaliation. However, Shields has not identified any interference, restraint or denial
of her FMLA rights to establish a claim for FMLA interference. Nor has Shields established a
prima facie case of retaliation pursuant to Title VII or any state law race retaliation claim. Finally,
Shields has abandoned any hostile work environment claim that she may have had.
Accordingly,

180

McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2001).

33

IT IS HEREBY ORDERED that Defendants’ “Motion for Summary Judgment” 181 is
GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that the motion for summary judgment is GRANTED on
Shields’ claims of FMLA interference, retaliation pursuant to Title VII, any state law race
retaliation claim, and any hostile work environment claim.
IT IS FURTHER ORDERED that the motion for summary judgment is DENIED on
Shields’ claims of race discrimination and FMLA retaliation.
NEW ORLEANS, LOUISIANA, this 12th day of July, 2016.
____

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

181

Rec. Doc. 63.

34