Montgomery-Smith v. Louisiana Department of Health and Hospitals, et al.
ORDER AND REASONS denying 55 Motion for Summary Judgment. Signed by Judge Susie Morgan on 5/22/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DENEEN L. MONTGOMERY-SMITH,
LOUISIANA DEPARTMENT OF
HEALTH AND HOSPITALS, ET AL.,
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by Defendant, The State
of Louisiana, through its Department of Health and Hospitals (“DHH”). 1 Plaintiff filed an
objection to the DHH’s Motion for Summary Judgment. 2 For the following reasons,
DHH’s Motion for Summary Judgment is DENIED.
On November 30, 2015, Plaintiff Deneen L. Montgomery-Smith filed a complaint
against Defendants, The State of Louisiana, through its Department of Health and
Hospitals (“DHH”) Office of Public Health-Louisiana Center for Records and Statistics,
and against Devin George, Nadine Smith, and Darlene Warren-Smith in their individual
and official capacities. On April 25, 2016, the Court issued an Order denying Defendants’
motion to dismiss without prejudice, granting Plaintiff leave to amend her complaint, and
allowing Defendants the opportunity to re-urge their motion upon the filing of Plaintiff’s
amended complaint. On May 9, 2016, Plaintiff filed a First Supplemental and Amended
Restated Complaint. On June 15, 2016, Defendants filed their re-urged Rule 12(b)(1) and
R. Doc. 55.
R. Doc. 61.
12(b)(6) Motion to Dismiss. 3 On February 21, 2017, the Court issued its Order and
Reasons granting in part and denying in part Defendants’ motion to dismiss. 4 In its Order
and Reasons the Court dismissed with prejudice all claims made by Plaintiff with the
exception of (1) her Title VII Retaliation claims against DHH based on acts occurring
between May 30, 2014 and March 26, 2015 and (2) Plaintiff’s Title VII Retaliatory Hostile
Work Environment claim against DHH based on acts occurring prior to March 26, 2015.5
On March 21, 2017, DHH filed its Motion for Summary Judgment 6 regarding
Plaintiff’s remaining Title VII Claims. On March 30, 2017, Plaintiff filed her Response in
Opposition 7 to DHH’s Motion for Summary Judgment.
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 8 “An issue is material if its resolution could affect the outcome of the action.” 9
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.” 10 All reasonable inferences are drawn in favor of the nonmoving party.11
There is no genuine issue of material fact if, even viewing the evidence in the light most
R. Doc. 30.
R. Doc. 45.
5 Id. at 32.
6 R. Doc. 55.
7 R. Doc. 61.
8 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
9 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
10 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
11 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law. 12
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 13 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 14
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim. 15 When proceeding under the first option, if the
nonmoving party cannot muster sufficient evidence to dispute the movant’s contention
that there are no disputed facts, a trial would be useless, and the moving party is entitled
Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
14 Celotex, 477 U.S. at 322–24.
15 Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986), and requiring the movants to submit affirmative evidence to negate an essential
element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient
to establish an essential element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in
Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims
on summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority
and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to
how the standard was applied to the facts of the case.” (internal citations omitted)).
to summary judgment as a matter of law. 16 When, however, the movant is proceeding
under the second option and is seeking summary judgment on the ground that the
nonmovant has no evidence to establish an essential element of the claim, the nonmoving
party may defeat a motion for summary judgment by “calling the Court’s attention to
supporting evidence already in the record that was overlooked or ignored by the moving
party.” 17 Under either scenario, the burden then shifts back to the movant to demonstrate
the inadequacy of the evidence relied upon by the nonmovant. 18 If the movant meets this
burden, “the burden of production shifts [back again] to the nonmoving party, who must
either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule
56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided
in Rule 56(f).” 19 “Summary judgment should be granted if the nonmoving party fails to
respond in one or more of these ways, or if, after the nonmoving party responds, the court
determines that the moving party has met its ultimate burden of persuading the court that
there is no genuine issue of material fact for trial.” 20
“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’” 21
First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
17 Celotex, 477 U.S. at 332–33.
19 Celotex, 477 U.S. at 332–33, 333 n.3.
20 Id.; see also First National Bank of Arizona, 391 U.S at 289.
21 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
LAW AND ANALYSIS
DHH filed a Motion for Summary judgment seeking dismissal of Plaintiff’s
remaining Title VII claims for (1) retaliation through acts occurring between May 30, 2014
and March 26, 2015 and (2) subjection to a retaliatory hostile work environment for
actions occuring prior to March 26, 2015. 22
Plaintiff’s Claims for Retaliatory Acts Occurring Between May 30, 2014 and March
Title VII retaliation claims are analyzed under a modified McDonnell Douglas
burden-shifting approach. 23 Under this approach, if the plaintiff demonstrates a prima
facie case of retaliation, the burden then shifts to the defendant to articulate a legitimate,
non-retaliatory reason for its decision not to promote the plaintiff. 24 If such a showing is
made, the burden shifts back to the plaintiff to establish that the employer’s proffered
reason is a “pretext for the actual retaliatory reason.” 25
a. Plaintiff’s Prima Facie Case of Retaliation
Title VII “forbids retaliation by employers against employees who report
workplace race or gender discrimination.” 26 To establish a prima facie case of retaliation,
a plaintiff must show that (1) she participated in a Title VII protected activity, (2) she
suffered an adverse employment action by her employer, and (3) there is a causal
connection between the protected activity and the adverse action.” 27
R. Doc. 55.
See, e.g., Richardson v. Monitronics International, 434 F.3d 327, 332–33 (5th Cir. 2005).
24 See, e.g., McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007)).
26 Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 273 (2009).
27 Stewart v. Miss. Transp. Com’n, 586 F.3d 321, 331 (5th Cir. 2009) (citing Aryain v. Wal-Mart Stores
Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008)).
i. Plaintiff Participated in a Protected Activity
It is uncontested that Plaintiff participated in a Title VII protected activity when
she filed an EEOC charge and two lawsuits in 2007 and 2008. 28
ii. Whether Plaintiff has Suffered an Adverse Employment Action
With respect to whether Plaintiff has suffered an adverse employment action by
her employer, for an employment action to constitute prohibited discrimination, the
action must be “materially adverse,” meaning that it would “dissuade a reasonable
worker from making or supporting a charge of discrimination.” 29 The Supreme Court
established this objective standard “to separate significant from trivial harms” and “filter
out complaints attacking the ordinary tribulations of the workplace, such as the sporadic
use of abusive language, gender-related jokes, and occasional teasing.” 30
In Stewart, for example, the Fifth Circuit determined that, as a matter of law,
having personal items taken from your desk, having the locks on your office door changed
and being chastised by superiors and ostracized by co-workers “do not rise to the level of
material adversity but instead fall into the category of ‘petty slights, minor annoyances,
and simple lack of good manners’ that the Supreme Court has recognized are not
actionable retaliatory conduct.” 31 However, employer actions such as demotion, denial of
a pay increase, and failure to promote, are materially adverse employment actions. 32 The
Fifth Circuit has also noted that the imposition of a heavier workload may constitute an
28 R. Docs. 55-1 at 10, 61 at 11. As discussed further below, Plaintiff’s filing of an EEOC charge on March 26,
2015, for the purposes of Plaintiff’s retaliation claims, is not considered a relevant Title VII protected
activity because the March 26, 2015 charge itself relates to her complaint of alleged retaliatory actions that
occurred prior to that date.
29 See Stewart, 586 F.3d at 331 (5th Cir. 2009) (quoting Burlington Northern and Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)).
31 Id. at 332 (quoting White, 548 U.S. at 68).
32 Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 532 n.2 (5th Cir. 2003) (collecting cases). See
also, Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (“Adverse employment actions are
discharges, demotions, refusals to hire, refusals to promote, and reprimands.”).
adverse employment action. 33 “Whether a particular reassignment is materially adverse
depends on the circumstances of the particular case, and should be judged from the
perspective of a reasonable person in the plaintiff’s position, considering all
DHH argues Plaintiff’s retaliation claims related to her allegations of poor
treatment, isolation, and intimidation do not constitute adverse employment actions as a
matter of law. 35 In its February 21, 2017 Order and Reasons the Court explained:
Montgomery-Smith contends that Devin George and Nadine Smith,
employees of DHH, and Darlene Smith, an independent contractor to DHH,
have conspired to retaliate against her by denying her promotions and
advancements opportunities, and by intimidating, isolating and harassing
her. While the majority of Plaintiff’s amended complaint lists actions that
do not rise to the level of material adversity, it is apparent that the Plaintiff
has alleged she suffered a sufficiently material adverse employment
decision when she was denied promotional opportunities on September 10,
2014, October 10, 2014, November 3, 2014, November 5, 2014, November
21, 2014, and February 19, 2015. 36
The Court now clarifies its February 21, 2017 Order and Reasons to explain that Plaintiff’s
only cognizable claims for impermissible retaliation relate to denial of the following five
promotional opportunities after May 30, 2014 and before March 26, 2015 because these
are the denials that rise to the level of material adverse employment actions: (1) Program
Manager 1-B-DHH (August 12 and August 26, 2014); (2) Program Manager 1-A-DHH
(August 12, 2014); (3) Program Monitor Supervisor (August 28, 2014); (4) Program
Monitor Supervisor (February 18, 2015); and (5) Program Monitor (February 18, 2015).
Stewart, 586 F.3d at 332.
White, 548 U.S. at 71.
35 R. Doc. 55-1 at 11.
36 R. Doc. 45 at 19 (internal citations omitted).
iii. Whether Plaintiff Can Demonstrate a Causal Connection Between Her
Protected Action and the Adverse Employment Actions
As a threshold matter, all of the adverse employment actions that are the bases of
Plaintiff’s retaliation claims occurred prior to the filing of her March 26, 2015 EEOC
Complaint. Accordingly, it is clear that DHH’s alleged retaliation at issue in this case was
not in response to Plaintiff’s March 26, 2015 EEOC Complaint. As a result, the only
protected activities relevant to the Plaintiff’s prima facie case are Plaintiff’s 2007 and
2008 lawsuits against DHH. 37
In University of Texas South Western Medical Center v. Nassar, the Supreme
Court held that Title VII retaliation claims must be proved according to traditional
principles of but-for causation. 38 “This heightened standard ‘requires proof that the
unlawful retaliation would not have occurred in the absence of the alleged wrongful action
or actions of the employer.’” 39
There is some disagreement, however, “among the circuits regarding whether the
Supreme Court’s holding in [Nassar] requires a plaintiff to show but-for causation as part
of her prima facie case of retaliation, or only at the third step of the McDonnell Douglas
framework to rebut an employer’s legitimate stated reason for the adverse employment
action.” 40 In Smith v. Board of Supervisors of Southern University, the Fifth Circuit
declined to resolve this issue after reasoning that even applying the standard most
favorable to the plaintiff, the plaintiff still failed to meet her burden. 41 This Court also
These claims were settled in November 2011.
See Hernandez v. Metro. Transit Auth. of Harris Cty., 2016 WL 7404749, at *4 (5th Cir. Dec. 21, 2016)
(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, ---- U.S. ----, 133 S.Ct. 2517, 2533 (2013).
39 Id. (quoting Nassar, 133 S.Ct. at 2533).
40 Smith v. Bd. of Supervisors of S. Univ., 656 F. App’x 30, 33 n.4 (5th Cir. 2016) (citing Young v. City of
Phila. Police Dep’t, 651 F. App’x 90, 97 & n.12 (3d Cir. 2016). See also, Hernandez v. Metro. Transit Auth.
of Harris Cty., 2016 WL 7404749 at *4 n.6; Smith v. Florida Pars. Juvenile Justice Comm’n, 2017 WL
1177905, at *9 (E.D. La. Mar. 30, 2017).
41 Smith v. Bd. of Supervisors of S. Univ., 656 F. App’x 33 n.4.
declines to resolve this issue as Plaintiff’s retaliation claims survive regardless of whether
the Plaintiff is required to make a showing of but-for causation in her prima facie case or
at step three of the McDonnell Douglas framework.
In cases with “[c]lose timing between an employee’s protected activity and an
adverse action against [her],” a plaintiff may satisfy the causation requirement of her
prima facie case through the evidence of close proximity alone. 42 In Clark County School
District v. Breeden, the Supreme Court held that actions taken twenty months after a
plaintiff exercised a protected activity, “suggests, by itself, no causality at all.” 43 Stated
differently, “the mere fact that some adverse action is taken after an employee engages in
some protected activity will not always be enough for a prima facie case.” 44 Because
Plaintiff’s protected activities were initiated six to seven years before the complained of
adverse employment actions, Plaintiff is not entitled to the benefit of an inference of
causation based on close proximity alone. 45 She must bring forth additional evidence of
Plaintiff has put forth evidence demonstrating a genuine issue of material fact
exists as to whether DHH’s failure to promote her was in retaliation for her filing of
lawsuits in 2007 and 2008. It is uncontested that Hugh Ely was the Assistant Secretary
of DHH at all times relevant to this lawsuit. 46 Plaintiff, in her deposition, states that Hugh
Ely told her she “would never receive a promotion after having filed lawsuits and
See, e.g., Barnes v. McHugh, 2013 WL 3561679, at *16 (E.D. La. July 11, 2013).
532 U.S. 268, 274 (2001).
44 See, e.g., Roberson v. Alltel Info. Serv., 373 F.3d 647, 656 (5th Cir. 2004) (quoting Swanson v. Gen Servs.
Admin, 110 F.3d 1180, 1188 n.3 (5th Cir. 1997) (emphasis in original).
45 See, e.g., El-Saba v. Univ. of S. Alabama, 2015 WL 5849747, at *15 (S.D. Ala. Sept. 22, 2015) (quoting
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) “If there is a substantial delay between the
protected expression and the adverse action, a complaint of retaliation fails as a matter of law only in the
absence of other evidence tending to show causation …” (emphasis in original) (internal
46 R. Docs. 55-2 at 4, 61-1 at 9.
grievances.” 47 While a plaintiff’s “[s]ubjective belief, no matter how sincere, simply
cannot support a finding” that a defendant’s actions were retaliatory in violation of Title
the Fifth Circuit in Portis v. First National Bank of New Albany, Mississippi,
“explicitly rejected the argument that the plaintiff’s testimony regarding the employer’s
discriminatory statements was merely testimony ‘regarding [the plaintiff’s] subjective
belief.’” 49 In Portis, the Fifth Circuit, reviewing the district court’s granting of the
defendant’s motion for judgment as a matter of law, explained that, “the question is not
whether the plaintiff’s testimony on its own can satisfy the burden of persuasion, but
whether it is enough to establish intentional discrimination. In this context, the Plaintiff’s
uncorroborated testimony ‘is sufficient to cast on the defendant the burden of producing
admissible evidence [of nondiscriminatory motivation].’” 50 The Fifth Circuit further
explained, “The fact that Portis’ case-in-chief consists solely of her own testimony does
not prevent her from establishing intentional discrimination.” 51
Plaintiff argues her testimony that Mr. Ely told her she would never be promoted
because she had filed two actions creates a genuine issue of material fact as to whether
she was retaliated against. Two of the positions for which she applied, her initial
application for Program Manager 1-A-DHH and her initial application for Project
Manager 1-B-DHH in August 2014, were for positions “belonging to” Mr. Ely, in other
words, under his control. 52 When asked why the 1-A-DHH position was cancelled, Tyrin
Fultz, a Human Resources Specialist at DHH, stated the position was cancelled after
R. Doc. 55-4 at 57.
See Smith v. Bd. of Supervisors of S. Univ., 656 F. App’x at 34.
49 See Fierros v. Texas Dept. of Health, 274 F.3d 187, 195 (5th Cir. 2001) (quoting Portis v. First Nat. Bank
of New Albany, Miss., 34 F.3d 325, 329 (5th Cir. 1994) (alteration in original)).
50 Portis, 34 F.3d at 329 n.10 (alteration in original) (citations omitted).
52 R. Doc. 61-1 at 4-5.
receiving a directive from an unknown person and that he was not provided a reason as
to why this position was cancelled. 53 Further, with respect to the same position, Plaintiff
put forth evidence demonstrating that, although the position was cancelled, another
employee, Robin Lewis, was later “detailed” into the position. 54 In his deposition, Devin
George explained that an employee is “detailed” into a position when he or she does not
“meet the minimum civil service qualifications” of a position. 55 With respect to the 1-BDHH position, although the position was initially cancelled, the position was later
reopened on or about August 26, 2014. 56 Defendant has not put forth any explanation of
why the position was originally cancelled. 57 After the position was reopened on or about
August 26, 2014, Plaintiff re-applied and although she was listed as a qualified applicant,
she was ultimately not chosen for the position. 58 The Defendant has not provided any
explanation of why the Plaintiff was not chosen for this position. Viewing the evidence in
the light most favorable to the Plaintiff, the Court finds that Plaintiff has established a
prima facie case. Plaintiff has put forth sufficient evidence to demonstrate a question of
material fact exists as to whether a causal connection exists between her protected activity
and the denial of her promotions to the Project Manager 1-A-DHH and 1-B-DHH
The alleged statements made by Mr. Ely also are sufficient to create a genuine issue
of material fact as to whether the denial of Plaintiff’s three other applications for
promotions were a result of her protected activity. Unlike the positions advertised by Mr.
R. Doc. 61-8 at 13-14.
R. Doc. 55-5 at 164.
56 See R. Docs. 55-2 at 3, 66-1 at 3.
57 Id. Defendant merely states that the position was cancelled. R. Doc. 55-2 at 3. In his deposition, Devin
George states that he has no information as to why this position was cancelled. R. Doc. 55-5 at 95.
58 See R. Doc. 61-8 at 12-22.
Ely, in order to demonstrate a causal link between Mr. Ely’s statements regarding the
likelihood of Plaintiff’s chances of promotion, and the denials of her promotion to
positions not directly under his control, Plaintiff will need to show that the ultimate
decision maker regarding the other positions was somehow influenced by Mr. Ely’s
retaliatory animus. “[U]nder the cats’ paw theory of liability, a plaintiff can establish an
employer’s liability where another employee with retaliatory animus influenced an actual
decision maker to take retaliatory or discriminatory action against the plaintiff.” 59
Plaintiff has put forth evidence that Devin George is the ultimate hiring authority for the
Office of Public Health-Vital Records. 60 Plaintiff has also put forth evidence that Devin
George has reprimanded her in the past after receiving an order from Baton Rouge. 61
When pressed on who issued the order from Baton Rouge, Devin George stated he did not
know. 62 Plaintiff has not provided evidence demonstrating a connection between Mr.
Ely’s statement’s and Mr. George’s actions, but viewing the evidence in a light most
favorable to the Plaintiff, Plaintiff has sufficiently demonstrated the existence of a genuine
issue of material fact as to whether Mr. Ely is the person who influenced Mr. George.
Defendants have not put forward any evidence negating this inference. Viewed as a whole
in light of the numerous denials for promotion, the Court finds that Plaintiff has met her
burden in establishing a prima facie case with respect to her claims for retaliation.
b. DHH’s Non-Retaliatory Reason for Denying Plaintiff’s Applications
After a plaintiff has established his or her prima facie case, the burden shifts to the
defendant to prove by a preponderance of the evidence the existence of a legitimate non-
59 Bounds v. Capital Area Family Violence Intervention Ctr., Inc., 2016 WL 1089266, at *4 (M.D. La. Mar.
18, 2016) (citing Zamora v. City of Houston, 798 F.3d 326, 332 (5th Cir. 2015)).
60 R. Doc. 55-5 at 132.
61 Id. at 197.
retaliatory reason for its employment actions. 63 The burden on the employer “is one of
production, not persuasion; it ‘can involve no credibility assessment.’” 64 “To meet this
burden, the employer must show, through admissible evidence, a legally sufficient reason
for not hiring the plaintiff.” 65 The Fifth Circuit has stated, however, that in order “to meet
its burden of production under McDonnel Douglas, an employer must articulate a
nondiscriminatory reason with ‘sufficient clarity’ to afford the employee a realistic
opportunity to show that the reason is pretextual.” 66 “This does not mean that an
employer may not rely on subjective reasons for its personnel decisions. It does mean,
though, that to rebut an employee’s prima facie case, a defendant employer must
articulate in some detail a more specific reason than its own vague and conclusional
feeling about the employee.” 67
Defendant has satisfied its burden in demonstrating a permissible, non-retaliatory
reason for only one of the promotions for which Plaintiff was denied a promotion: the
Program Monitor Supervisor Position that Plaintiff applied for on February 18, 2015. As
explained in Mr. George’s deposition, Jemimah Mikel was chosen for this position after
the Louisiana Civil Service performed a restructuring to establish the Quality
Management Unit (“QMU”) and notified Mr. George that three Field Service Manager
positions, including Ms. Mikel’s, were being abolished and would be reallocated to
QMU. 68 Defendant states the Civil Service mandated that its policies required the
Program Monitor Supervisor position be publically announced and that Ms. Mickel be
See McCoy, 492 F.3d at 557.
Reeves, 530 U.S. at 142 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).
65 Bright v. GB Bioscience Inc., 305 F. App’x 197, 202 (5th Cir. 2008) (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 255 (1981)).
66 Patrick v. Ridge, 394 F.3d 311, 316 (5th Cir. 2004) (emphasis in original) (citations omitted).
67 Id. (citations omitted).
68 R. Doc. 55-1 at 15 (citations omitted).
placed into the newly created position. 69 With respect to the denial of Plaintiff’s February
18, 2015 application for the Program Monitor Supervisor Position, the Court finds the
Defendant has met its burden in stating a non-retaliatory reason for the denial of
Defendant’s explanations with respect to the other job applications at issue,
however, do not satisfy the low evidentiary threshold set forth in Burdine. With respect
to the positions filled by Charlotte Sykes and Melissa Root, positions for which Plaintiff
respectively applied for on August 26, 2014 and August 28, 2014, DHH merely states that
all qualified candidates were asked the same questions and the interview panel discussed
the strengths and weaknesses of each candidate before arriving at a final decision “as a
result of this non-discriminatory process.” 70 Although Burdine may not require much, it
is clear that a Defendant must provide “enough detail to enable [a plaintiff] to attempt to
show pretext.” 71
With respect to Plaintiff’s August 12, 2014 applications for the Program Manager
1-A-DHH position and her original application for the Program Manager 1-B-DHH
position, applications for which the posted positions were later cancelled, Defendant
argues, “When a desired position is not filled or cancelled, a plaintiff is unable to establish
a prima facie case of discrimination for alleged failures to promote.” 72 The Court
previously addressed and rejected this argument when it ruled on Defendants’ Motion to
Dismiss. In its February 21, 2017 Order and Reasons, addressing an identical argument,
the Court explained, “[W]hile Defendants’ argument may be correct with respect to a
71 Patrick, 394 F.3d at 317.
72 R. Doc. 55-1 at 16 (citing Rudolph v. Huntington Ingalls, Inc., 2011 WL 4350941 (S.D. Miss. Sept. 15,
claim for discrimination based on alleged failure to promote, the fact that a position was
not filled does not mean the failure to promote the Plaintiff was not a materially adverse
employment action with respect to a retaliation claim.” 73 The Defendant argues the
depositions provided to the Court contain further detail regarding DHH’s reasons to not
promote Plaintiff, but DHH has failed to provide the Court with specific citations as to the
location of this information in the almost six hundred pages of depositions provided to
the Court. The Court has no duty to sift through the record in search of evidence to
support a party’s position in a motion for summary judgment and conclusory assertions
and arguments of counsel are not enough to satisfy the Defendant’s burden.
Accordingly, the Court finds the Defendant has not satisfied its burden to put forward a
non-retaliatory reason for its employment actions with respect to the positions under Mr.
Ely which were posted and cancelled after Plaintiff submitted her application.
With the exception of Defendant’s proffered non-retaliatory reason for denying
Plaintiff’s February 18, 2015 Program Supervisor Position, the Defendant has not satisfied
its burden pursuant to Burdine. Because the Defendant, with the exception of Plaintiff’s
claim related to her February 18, 2015 application, has not satisfied its burden at step two
of the McDonnel Douglas framework, Defendant’s motion for summary judgment as to
the Plaintiff’s retaliation claims, other than Plaintiff’s claim based on the February 18,
2015 Program Supervisor application, is denied.
With respect to Plaintiff’s February 18, 2015 application for the Program
Supervisor Position, for which the Defendant has articulated a sufficient non-retaliatory
R. Doc. 45 at 19 n.73 (citing Thompson v. City of Miami Beach, Fla., 990 F. Supp. 2d 1335, 1342 (S.D.
74 See Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379-80 (5th Cir. 2010) (citations omitted).
reason for denying, and assuming arguendo that DHH has satisfied its burden in the
second step of the McDonnell Douglas framework with respect to the Plaintiff’s four other
applications at issue, the third step of the McDonnell Douglas requires the Plaintiff to
demonstrate that DHH’s proffered non-retaliatory reasons are merely pretext for the
actual retaliatory reason. Although, as discussed above, it is unclear whether the Nassar
but-for causation is a part of a plaintiff’s prima facie case of retaliation, it is clear that a
plaintiff must show but for causation to satisfy the third step of the McDonnell Douglas
framework by proving her protected activity was the but-for cause of the adverse
employment action. 75 As discussed above, Plaintiff has put forth evidence that Mr. Ely
told her she would never be promoted because of her 2007 and 2008 lawsuits. This
evidence demonstrates that questions of material fact exist as to (1) whether, as the Court
previously explained, a causal connection exists between her protected activities and the
denial of her promotions and (2) whether DHH’s proffered non-retaliatory reasons for
denying her application are merely pretext. DHH’s motion for summary judgment with
respect to Plaintiff’s retaliation claims is denied.
Plaintiff’s Retaliatory Hostile Work Environment Claim
A hostile work environment results from discrimination that does not culminate in
a tangible or adverse employment action. 76 A hostile work environment:
Involves repeated conducted … [that] occur over a series of days or perhaps
years and … [where] a single act of harassment may not be actionable on its
own, [while] a discrete-acts claim involves a single act of discrimination
such as termination, failure to promote, denial of transfer, or refusal to hire.
[A] plaintiff may not combine discrete acts to form a hostile work
The Supreme Court held that Title VII retaliation claims must be proved according to traditional
principles of but-for causation, not the lessened motivation causation test. See Hernandez, 2016 WL
7404749 at *4 (quoting Nassar, 133 S.Ct. at 2533).
76 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).
“A workplace environment is hostile when it is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment.” 78
As the Court explained in its February 21, 2017 Order and Reasons, Plaintiff’s
hostile work environment claim differs from the typical hostile work environment claim
because Plaintiff’s claim is based on claims that the Defendant created and permitted a
hostile work environment in retaliation for her protected activities as opposed to
discrimination against a protected group under Title VII. 79 “The Fifth Circuit has neither
recognized nor foreclosed retaliatory hostile work environment claims.” 80 “At least five
other circuits recognize such a cause of action.” 81 “Given the absence of binding authority,
courts in the Fifth Circuit have assumed that a retaliatory hostile work environment claim
can be brought.” 82
To state a typical, non-retaliatory, hostile work environment claim, an employee
must show that she: (1) belongs to a protected group; (2) was subjected to unwelcome
harassment; (3) the harassment was based on a factor rendered impermissible under Title
VII; (4) the harassment was sufficiently severe or pervasive so as to affect 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 prompt remedial action. 83 “In this circuit,
Rowe v. Jewell, 88 F. Supp. 3d 647, 674 (E.D. La. 2015) (alterations in original) (internal quotations and
78 Alaniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009) (quotations omitted).
79 See R. Doc. 45.
80 See Zavala v. Carrollton-Farmers Branch Indep. Sch. Dist., 2017 WL 274133, at *2 (N.D. Tex. Jan. 20,
2017) (citing Fallon v. Potter, 277 F. App’x. 422, 424 (5th Cir. 2008)).
81 Id. (collecting cases).
82 Id. (citing Rowe, 88 F. Supp. 3d at 673; Tejada v. Travis Ass’n for the Blind, 2014 WL 2881450, at *3
(W.D. Tex. June 25, 2014)).
83 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir. 2012).
the fifth element does not apply when the alleged harasser is a supervisor.” 84 In addition,
the complained of conduct must be both objectively and subjectively offensive. 85
For claims of a retaliatory hostile environment, district courts in this circuit follow
a modified approach:
[T]he first and third elements [of a prima facie case] have a different focus. In the
retaliation context, the first element would require proof that the plaintiff had
engaged in a protected activity, and the third element would require
demonstration of a causal connection between the harassment and the protected
a. Plaintiff Engaged in a Protected Activity
With respect to Plaintiff’s Retaliatory Hostile Work Environment claim, it is
uncontested that Plaintiff participated in a Title VII protected activity when she filed an
EEOC charge and two lawsuits in 2007 and 2008. 87
b. Plaintiff Was Subjected to Unwelcome Harassment
DHH, in its motion, does not specifically argue that the Plaintiff cannot establish
the second element of her retaliatory hostile work environment prima facie case. For the
purpose of establishing the second element of her retaliatory hostile work environment
prima facie case, the Court finds that Plaintiff has put forth sufficient evidence to
demonstrate the existence of a genuine issue of material fact as to whether she was
subjected to unwelcome harassment.
McVille v. Inter-Comty. Healthcare, Inc., 2011 WL 288962, at *5 (E.D. La. Jan. 25, 2011), aff’d, 460 F.
App’x 353 (5th Cir. 2012) (citing LeMaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 393 n.2 (5th Cir.
2007); (Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999))
85 E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 400 (5th Cir. 2007).
86 Rowe, 88 F. Supp. 3d at 673 (quoting Tejada, 2014 WL 2881450, at *3) (second alteration in original).
87 R. Docs. 55-1 at 10, 61 at 11. As explained in the Court’s February 21, 2017 Order and Reasons, Plaintiff’s
March 26, 2015 EEOC charge, for the purpose of Plaintiff’s retaliatory hostile work environment claims, is
not considered a relevant Title VII protected activity because the retaliatory hostile work environment
complained of occurred prior to the filing of this charge and in retaliation to her 2007 and 2008 lawsuits.
See R. Doc. 45 at 32 (dismissing Plaintiff’s claims related to a hostile work environment after March 26,
c. Whether Plaintiff Can Demonstrate a Causal Connection Between Her
Protected Action and the Unwelcomed Harassment
As described above, “Title VII retaliation claims must be proved according to
traditional principles of but-for causation, not the lessened [motivating factor] causation
test[.]” 88 “This heightened standard ‘requires proof that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action or actions of the
employer.’” 89 In dealing with retaliatory hostile work environment claims in other cases,
courts within this district have determined “but-for causation, which is the third, pretext
element of a retaliation claim, still ‘matters in a retaliatory hostile work environment
claim – that is the severe and pervasive accumulation of actions that would not have
occurred but-for the retaliatory reason, even if each action alone was justifiable.” 90
Plaintiff has sufficiently demonstrated that a factual dispute exists as to whether
the unwelcome harassment was directly in retaliation for her protected activities. With
respect to her isolation, Plaintiff, in her deposition, stated that Jemimah Mickel told her
that she was instructed to stay away from the Plaintiff because of lawsuits and grievances
that were filed in the past. 91 Although Plaintiff concedes that Ms. Mickel, in her
deposition, denied this conversation, 92 Plaintiff argues “these denials also create an issue
of material fact to be decided by a jury. 93 The Court agrees, especially in light of Erica
Franklin’s testimony corroborating Plaintiff’s assertion that she and Ms. Mickel used to
be friendly but Ms. Mickel then suddenly distanced herself. 94
Hernandez, 2016 WL 7404749 at *4 (quoting Nassar, 133 S.Ct. at 2533 (alterations in original)).
Id. (quoting Nassar, 133 S.Ct. at 2533).
90 Rowe, 88 F. Supp. 3d at 674 (citing Gowski v. Peake, 682 F.3d 1299, 1313 (5th Cir. 2015)).
91 R. Doc. 61-3 at 12.
92 See R. Doc. 61-12 at 5.
93 R. Doc. 61-1 at 13.
94 R. Doc. 61-13 at 11-13.
Plaintiff also argues that Mr. George has refused to meet with her to discuss why
she was not promoted. Specifically, Plaintiff testified that Devin George stated he needed
someone from Baton Rouge, namely Beth Skalko, to be present in the meeting. 95 Plaintiff
has also stated that to date, Mr. George, has never met with the Plaintiff. 96 Defendant has
not provided any evidence as to why Mr. George required that Ms. Skalko be present and
why this meeting has never occurred. Finally, as discussed in greater detail below,
Plaintiff has provided evidence demonstrating a genuine issue of material fact as to
whether she has been routinely excluded from office meetings. 97 Considering the
foregoing, and in light of the factual disputes discussed above relating to whether Plaintiff
can demonstrate a causal connection between her protected activities and the denial of
her promotions, the Court finds this evidence raises a genuine issue of material fact as to
whether Plaintiff can demonstrate that the complained of harassment was in retaliation
for her protected activities.
d. Whether the Harassment was Sufficiently Severe or Pervasive So As to
Affect a Term, Condition, or Privilege of Employment
DHH argues that Plaintiff has failed to establish that a factual disputes exists as to
whether the work environment complained of was sufficiently severe or pervasive so as
to affect a term, condition, or privilege of employment. “Title VII … is not a ‘general civility
code,’ and ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory charges in the ‘terms and conditions of
employment.’” 98 The Fifth Circuit has further explained:
For harassment to be sufficiently severe or pervasive to alter the conditions
of the victim’s employment, the conduct complained of must be both
objectively and subjectively offensive. Thus, not only must the victim
R. Doc. 61-3 at 14-15.
97 See R. Doc. 61-3 at 33.
98 Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th Cir. 2007) (quotations omitted).
perceive the environment as hostile, the conduct must also be such that a
reasonable person would find it to be hostile or abusive. To determine
whether the victim’s work environment was objectively offensive, courts
consider the totality of the circumstances, including (1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether it is physically
threatening or humiliating, or merely an offensive utterance; and (4)
whether it interferes with an employee’s work performance. No single factor
is determinative. In short, a showing that the employee’s job performance
suffered is simply a factor to be considered, not a prerequisite. 99
“[T]he determination of whether alleged conduct is sufficiently severe or pervasive is not
an exact science, but this [c]ourt’s decisions on this issue provide guidance.” 100
As discussed above, Plaintiff, in her deposition, stated that after her involuntary
transfer to Vital Records, she was formally reprimanded by Devin George for asking
Brenda Hurst, instead of her immediate supervisor, Nadine Smith, for a job
description. 101 As also discussed above, Plaintiff stated that Devin George refused to meet
with her to discuss Ms. Sykes’ promotion “unless someone from Baton Rouge, namely
Beth Skalko, was present.” 102 Plaintiff stated that even though she followed up with an email to Mr. George requesting a time to discuss, a meeting never occurred. 103 Plaintiff also
stated that she “was isolated in the office,” and “[n]o one was allowed to talk to me or
spend time in my office with me.” 104 Plaintiff also stated she was not assigned to any
specific duties and was not allowed to speak with anyone other than her immediate
supervisor. 105 Further, Plaintiff stated that Jemimah Mickel received a promotion after
she stopped associating with Plaintiff. 106 Plaintiff also testified she has not been invited
99 Equal Emp’t Opportunity Comm’n v. WC&M Enters., Inc., 496 F.3d 393, 399-400 (5th Cir. 2007)
100 Paul v. Northrop Grumman Ship Sys., 309 F. App’x 825, 828 (5th Cir. 2009) (quoting Gibson v. Potter,
264 F. App’x 397, 400 (5th Cir. 2008) (alterations in original)).
101 See R. Doc. 55-4 at 76-77.
102 Id. at 59-60.
103 Id. at 61.
104 Id. at 72.
106 Id. at 80.
to meetings, including unit meetings and manager’s meetings where the State Registrar
meets with the heads of departments and instrumental employees. 107
In Equal Employment Opportunity Commission v. WC&M Enterprises, Inc., the
Fifth Circuit found that the district court applied an incorrect standard when it found that
even if the plaintiff could prove that any harassment occurred, “he has not shown that it
was so severe that it kept him from doing his job.” 108 Instead, the Fifth Circuit found the
fact that Plaintiff lost sales as a result of the alleged harassment, while not dispositive,
was “certainly relevant to his hostile work environment claim.” 109 Further, in Rowe,
another retaliatory hostile work environment case from within this district, the Court,
granting the defendant’s motion for summary judgment, explained, “Rowe never was shut
out from his work and never had his privileges revoked or his duties eliminated.” 110 The
Rowe court reasoned that this was “[f]ar from creating a material fact issue that his work
environment was permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of [his] employment.” 111
Conversely, in this case, Plaintiff’s having her duties eliminated, by no duties being
assigned to her, is sufficiently severe to affect a term, condition, or privilege of
Beyond complaints regarding reprimands, isolation, and refusal to schedule
meetings, Plaintiff has provided evidence demonstrating that she has continually been
excluded from administrative meetings. 112 Specifically, Plaintiff testified:
Any meetings that have been held, whether it be a unit meeting or meeting
of a certain staff, I have not been invited to attend. I have never been invited
Id. at 88.
496 F.3d 393, 400 (5th Cir. 2007).
110 Rowe, 88 F. Supp. 3d at 678 (citations and quotations omitted).
112 R. Doc. 61-3 at 33.
to a manager’s meeting where the State Registrar has met with the heads of
departments be it supervisors or other you know instrumental employees,
other program monitors. I’ve never been included in any of those
Further, Plaintiff has provided evidence demonstrating a genuine issue of material fact
exists as to whether Plaintiff should have been, but was not, invited to these meetings and
whether this exclusion inhibited her from doing her job. Specifically, Richard Jackson, a
human resources liaison at DHH, stated in his deposition that he believed Plaintiff was
invited and attended those meetings. 114 However, when asked to check the emails sent by
Devin George in which he set these meetings and invited attendees, Mr. Jackson
confirmed that Plaintiff was not included on the list of invitees but that the list did include
the names of other program monitors and members of the administrative staff. 115
Defendant has not specifically addressed Plaintiff’s arguments with respect to her hostile
work environment claim that she was not invited to meetings and that it affected her
work. Instead, Defendant has merely reiterated that “Title VII was only meant to bar
conduct that is so severe and pervasive that it destroys a protected class member’s
opportunity to succeed in the workplace,” and that Plaintiff’s “allegations . . . do not rise
to the level of severe or pervasive harassment.” 116 The Court finds that Plaintiff has
demonstrated a genuine issue of material fact exists as to whether the harassment was
sufficiently severe or pervasive so as to affect a term, condition, or privilege of her
R. Doc. 61-7 at 6.
115 Id. at 10.
116 R. Doc. 55-1 at 18.
e. Whether DHH Knew or Should Have Known of the Harassment in Question
and Failed to take Prompt Remedial Action
The final element of a Plaintiff’s retaliatory hostile work environment prima facie
case is whether the employer knew or should have known of the harassment in question
and failed to take prompt remedial action. 117 “In this circuit, the fifth element does not
apply when the alleged harasser is a supervisor.” 118 DHH, in its motion for summary
judgment, does not address whether Plaintiff can satisfy this element. Further, as the
alleged harassers were Plaintiff’s supervisors, the Court finds the fifth element does not
apply to Plaintiff’s retaliatory hostile work environment claims. Because Plaintiff has
demonstrated a genuine issue of material fact as to all of the elements of her prima facie
case, DHH’s motion for summary judgment regarding Plaintiff’s hostile work
environment claim is denied.
For the foregoing reasons;
IT IS ORDERED that DHH’s Motion for Summary Judgment 119 is DENIED.
New Orleans, Louisiana, this 22nd day of May, 2017.
______________ ________ ________
UNITED STATES DISTRICT JUDGE
Zavala, 2017 WL 274133 at *2.
Id. (collecting cases).
119 R. Doc. 55.
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