Jackson v. Florida Parishes Juvenile Justice Commission, et al

Filing 43

ORDER: IT IS HEREBY ORDERED that Defendants' 23 Motion for Summary Judgment is GRANTED. Signed by Chief Judge Nannette Jolivette Brown on 8/15/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SYNTHIA JACKSON

CIVIL ACTION

VERSUS

NO. 16-14864

FLORIDA PARISHES JUVENILE JUSTICE
COMMISSION, et al.

SECTION: “G”(4)

ORDER
Pending before the Court is Defendants Florida Parishes Juvenile Justice Commission and
Florida Parishes Juvenile Detention Center’s (collectively, “Defendants”) “Motion for Summary
Judgment.”1 Having considered the motion, the memoranda in support and in opposition, the
record, and the applicable law, the Court will grant Defendants’ motion.
I. Background
The Florida Parishes Juvenile Justice Commission (the “Commission”) is charged with
operating and managing a juvenile detention facility in the 21st and 22nd Judicial Districts of
Louisiana, including the Florida Parishes Juvenile Detention Center (the “Center”).2 In the petition,
Plaintiff Synthia Jackson (“Plaintiff”) alleges that on January 3, 1994, Plaintiff was hired as the
manager of the Food Service Department of the Center.3 Plaintiff alleges that she was not
considered a member a management and was not entitled to the same perks as the white male
members of management.4 Plaintiff also alleges that Defendants only gave pay raises to the

1

Rec. Doc. 23.

2

Rec. Doc. 23-3 at 1.

3

Rec. Doc. 1-1 at 1.

4

Id. at 2.

1

security staff and management.5
Moreover, Plaintiff states that she took FMLA leave in June 2014 after major surgery, but
she still received calls from the Center regarding work issues.6 In August 2014, according to
Plaintiff, members of management fired Food Service workers after allegedly finding questionable
practices without first consulting with Plaintiff.7 Furthermore, on August 15, 2014, Plaintiff alleges
that she was presented with an Employee Rule Violation for “some vaguely stated failure to
supervise the Food Service Department.”8 Plaintiff asserts that she then submitted two weeks’
notice of her resignation, which Defendants accepted, but did not allow Plaintiff to continue
working.9 Plaintiff asserts that during her time working for Defendants, management rode bicycles
during work hours without being disciplined, and other employees, including Plaintiff, had to
perform additional duties as a result.10 Plaintiff brings a Title VII claim alleging that she was
discriminated against as an African-American female, as well as a Family & Medical Leave Act
claim.11
Plaintiff filed the petition for damages in the 21st Judicial District Court for the Parish of
Tangipahoa on September 19, 2016.12 Defendants removed the case to this Court on September

5

Id.

6

Id. at 3.

7

Id. at 4–5.

8

Id. at 5.

9

Id. at 4.

10

Id.

11

Id. at 6–7.

12

Rec. Doc. 1 at 1.

2

21, 2016, asserting that this Court has jurisdiction over the action pursuant to 28 U.S.C. § 1331.13
On November 17, 2017, Defendants filed the instant motion for summary judgment.14 On
December 14, 2017, Plaintiff filed an opposition to Defendants’ motion.15 On December 19, 2017,
Defendants filed a reply to Plaintiff’s opposition.16
II. Parties’ Arguments
A. Defendants’ arguments in support of the motion for summary judgment
1. Defendants argue that Plaintiff’s Title VII claims ought to be dismissed because
there was no adverse employment action under Title VII.
Defendants first argue that they are entitled to summary judgment on Plaintiff’s Title VII
claims because she cannot establish a prima facie case of discrimination as she did not suffer an
adverse employment action.17 According to Defendant, Plaintiff “voluntarily resigned her
employment under circumstances which do not show that she was constructively discharged.”18
As a result, Defendant argues that Plaintiff cannot establish a prima facie case of discrimination.19
Defendants assert that one of Plaintiff’s primary job responsibilities was to monitor food
use and keep records of food purchases and other costs of the Food Services Department.20
Defendants contend that upon investigating the Food Service Department after becoming

13

Id.

14

Rec. Doc. 23.

15

Rec. Doc. 30.

16

Rec. Doc. 34.

17

Rec. Doc. 23-3 at 3.

18

Id. at 4–5.

19

Id. at 5.

20

Id.

3

concerned about its costs, Plaintiff’s supervisor determined that members of the kitchen staff were
regularly stealing food.21 As a result, Defendants state that Plaintiff’s supervisor received a written
reprimand and Plaintiff was issued an Employee Rule Violation Report.22 According to
Defendants, Plaintiff was not facing termination because she was a “valued, long-term employee,”
but she immediately submitted her written resignation.23
Defendants contend that this case is similar to Stover v. Hattiesburg Public School District,
where the Fifth Circuit determined that the plaintiff did not offer sufficient evidence to establish
an intolerable environment that would compel a reasonable employee to resign under similar
circumstances.24 Defendants assert that Plaintiff’s claim that she was underpaid because she was
denied overtime compensation is “unavailing” because Plaintiff was a salaried Department
Manager, who allegedly “was exempt from hourly pay.”25 Moreover, Defendants state that
Plaintiff’s claim that hourly employees received raises while she did not is baseless.26 Defendants
assert that only the security staff received pay increases “in order to stem turnover.”27 Defendants
claim that other staff only received regular merit increases, which Plaintiff also received.28
Moreover, Defendants assert that Plaintiff never submitted a grievance about her exempt status,
her feeling that she was underpaid, or her feeling that she was uncomfortable or ridiculed by her

21

Id. at 5–6.

22

Id. at 7.

23

Id. Defendants state that Plaintiff was not facing termination because “she was a valued, long-term employee.” Id.

24

Id. at 10 (citing 549 F.3d 985 (5th Cir. 2008)).

25

Id. at 10.

26

Id.

27

Id.

28

Id. at 10–11.

4

superiors.29 Defendants then assert that being called at home while on FMLA leave or feeling
ridiculed or embarrassed is not indicative of an “egregious” work environment under the standard
set forth by the Supreme Court.30
Furthermore, Defendants assert that Plaintiff’s allegation that her supervisor provided the
State with the wrong date of her resignation is “baseless,” as Plaintiff’s last day of work was
August 15, 2014.31 Defendants aver that although Plaintiff stated that her resignation would be
effective on August 29, 2014, she was not entitled to designate the effective date of her resignation
because she was an “at-will” employee.32 As a result, Defendants argue that the information
provided to the State was accurate.33
Finally, Defendants contend that although Plaintiff may have been contacted while on
FMLA leave, “it is not uncommon for employees out on FMLA leave to receive occasional
telephone calls regarding work.”34 Moreover, according to Defendants, there are no records of
such contact, nor are there records of Plaintiff complaining of the contact.35 As a result, Defendants
argue that Plaintiff “is unable to show that she was treated in the egregious manner . . . to transform
a routine disciplinary action into the type of harassment and humiliation that would prod a
reasonable employee to resign.”36

29

Id. at 11.

30

Id. (citing Pa. State Police v. Suders, 542 U.S. 129 (2004)).

31

Id.

32

Id.

33

Id.at 12.

34

Id.

35

Id.

36

Id.

5

2. Defendants argue that Plaintiff’s FMLA claims ought to be dismissed because no
violations of the FMLA occurred and Plaintiff has not suffered any prejudice as a
result of any alleged violation
Next, Defendants contend that they are entitled to summary judgment on Plaintiff’s FMLA
claims because no violations of the FMLA occurred or Plaintiff has not suffered prejudice as a
result of any alleged violation.37 According to Defendants, Plaintiff’s petition contains claims of
ten FMLA violations.38 First, regarding Plaintiff’s claim that Defendants failed to notify her of her
FMLA rights, Defendants state that Plaintiff applied for FMLA leave once, and her application
demonstrates that she was aware of her FMLA rights.39 Moreover, according to Defendants, all
employees were advised of their FMLA rights by the notices that were posted in the staff break
rooms and the staff kitchen.40

37

Id.at 13–19.

38

Id. at 13–14. Defendants list the following as Plaintiff’s claims in her petition:
1.
2.

Failure to notify employee of FMLA rights. (29 CFR 825.300-.301);
Failure to notify employee that leave counted towards 12-week FMLA entitledment. (29 CFR
825.208(b)(1)-(b)(2));
3. Counting FMLA leave against the firm’s absentee policy for disciplinary purposes. (29 CFR
825.220(c));
4. Taking disciplinary action against employee for using FMLA. (29 CFR 825.220(c));
5. Failure to grant leave to provide physical care or psychological comfort to a seriously ill family
member. (29 CFR 825.116(a));
6. Failure to reinstate an employee to same or equivalent position;
7. Terminating an employee during or at the conclusion of FMLA leave. (29 CFR 825.216);
8. Failure to grant FMLA leave because of a misunderstanding of what qualifies as a “serious
health condition.” (29 CFR 825.114);
9. Failure to request medical certification in writing and not giving employee at least 15 days to
obtain medical certification. (29 CFR 825.305);
10. Failure to handle questions about the validity of a medical certification by guidelines set forth
in FMLA regulations. (29 CFR 825.307).
Id. at 13–14.
39

Id. at 15.

40

Id.

6

Second, considering Plaintiff’s claim that Defendants failed to notify her that leave counted
towards her 12-week FMLA annual total, Defendants argue that Plaintiff has not shown that she
has suffered any actual prejudice as the result of any alleged violation.41 According to Defendants,
Defendants granted in full Plaintiff’s requested FMLA leave from June 6, 2014 to June 30, 2014.42
Moreover, Defendants assert that Plaintiff did not request any additional leave in 2014, and she
resigned on August 15, 2014.43 As a result, Defendants aver that considering Plaintiff did not
request any additional leave, any alleged failure to notify Plaintiff that her leave in June 2014
counted towards her 12-week annual total resulted in no harm.44
Third, Defendants assert that Plaintiff claims Defendants counted FMLA leave against
Defendants’ absentee policy for disciplinary purposes.45 Defendants argue that this “claim is
precluded because [Plaintiff’s] FMLA leave was never reduced as a disciplinary measure due to
any work absences.”46
Fourth, considering Plaintiff’s claim that disciplinary action was taken against her for using
FMLA leave, Defendants argue that Plaintiff’s “FMLA leave was never reduced as a disciplinary
measure due to her use of FMLA leave.”47
Fifth, regarding Plaintiff’s claim that she was denied leave to provide care to a seriously ill
family member, Defendants assert that Plaintiff never requested FMLA leave for that purpose and

41

Id. at 16–17.

42

Id. at 17.

43

Id.

44

Id.

45

Id. at 18.

46

Id.

47

Id.

7

Defendants did not have knowledge that a family member required her care.48 As a result,
Defendants state that they were not in a position to deny or allow such leave.49
Sixth, addressing Plaintiff’s claim that Defendants did not reinstate her to the same or
equivalent position, Defendants argue that Plaintiff “was in fact reinstated to her former position,
without a reduction in pay or any benefits.”50
Seventh, regarding Plaintiff’s claim that she was terminated during or at the conclusion of
FMLA leave, Defendants aver that Plaintiff’s leave ended on June 30, 2014, and she resigned on
August 15, 2014.51 As a result, Defendants assert that Plaintiff’s claim is baseless.
Last, considering Plaintiff’s claim that Defendants failed to grant Plaintiff FMLA leave
because of misunderstanding of what qualifies as a “serious health condition,” failed to request
medical certification in writing, and did not provide Plaintiff 15 days to obtain medical
certification, Defendants contend that Plaintiff was never denied FMLA leave.52
B. Plaintiff’s arguments in opposition to Defendants’ motion
Plaintiff argues that there is sufficient summary judgment evidence in the record to indicate
the presence of genuine issues of material fact.53 Plaintiff states that she does not oppose
Defendants’ motion with respect to the FMLA claims, but she does oppose Defendants’ motion
with respect to her Title VII claim.54 Plaintiff states that the management of the Florida Parishes

48

Id.

49

Id.

50

Id. at 19.

51

Id.

52

Id.

53

Rec. Doc. 30 at 7.

54

Id. at 2.

8

Juvenile Detention Center has been all-white and all-male for a number of years, and this
management “consistently employs a double standard with respect to personnel matters.”55
Responding to Defendants’ contention that Plaintiff was not facing termination because
she was a “valued, long-term employee,” Plaintiff questions, “[i]f this is true, then why did the
[D]efendants accept the [P]laintiff’s resignation?”56 Plaintiff also states that Defendants would
have allowed her to come to work during the period of her two weeks’ notice.57 Moreover, Plaintiff
argues that the date of her termination was not August 18, 2014, as Defendants admit that they
continued to pay her during the period of her two weeks’ notice, but would not allow her to work
during that period.58
Additionally, addressing Defendants’ arguments regarding the alleged thefts in the Food
Service Department, Plaintiff asserts that “[t]here are no documents submitted on this subject to
substantiate the alleged problem.”59 Plaintiff asserts that Defendants’ claim is “suspicious”
considering they claim to have saved roughly $84,000 annually from addressing the alleged
inefficiencies and cost overages of the Food Services Department, but surveillance footage shows
two employees removing small food items with a total combined value of less than $100.60 Plaintiff
further avers that Defendants’ assertion is “unconvincing,” as Defendants “slept at the switch”
when over two million dollars were embezzled in another case.61 Plaintiff also states that in a

55

Id.

56

Id. at 3.

57

Id.

58

Id. (citing Cotright v. Doyal, 195 So. 2d 176 (La. App. 2d Cir. 1967)).

59

Id. at 4.

60

Id.

61

Id.

9

similar case of alleged thefts in the Food Service Department, Defendants merely counseled, as
opposed to have terminated, a white employee who was found to have removed food items from
the Center.62
Plaintiff asserts that Defendants’ reaction to the alleged thefts “confirms their longstanding discriminatory animus.”63 Plaintiff states that she, a black female, “was not consulted
about the appropriate management response but instead was issued an ERV as apparently being
considered as guilty by association.”64 Plaintiff avers that her white male supervisor received a
written reprimand on Center stationery two weeks later which caused him to leave the Center in
March 2015.65
Finally, Plaintiff states that Defendants do not dispute many of Plaintiff’s allegations in the
petition.66 Plaintiff states that she alleged that from 2008-2014, the management rode bicycles
without consequence while other employees worked and that the “lackadaisical attitude” of
management created more work for female administrative staff members.67 Moreover, Plaintiff
states that Defendants do not dispute that the Center abolished its internal review board process,
so “the Center’s all white male management has complete control of the disciplinary process.”68
Plaintiff then asserts that her resignation resulted from “arbitrary and high-handed conduct of the
Center’s all-white management which [P]laintiff could no longer tolerate.”69

62

Id. at 5.

63

Id.

64

Id.

65

Id.

66

Id.

67

Id. at 6.

68

Id.

10

C. Defendants’ arguments in reply to Plaintiff’s opposition
Defendants assert that Plaintiff “fails to discuss the standard for a constructive discharge.”70
According to Defendants, a claim of constructive discharge requires a greater degree of harassment
than that required to establish a hostile work environment claim.71
Defendants then argue that rejecting Plaintiff’s request for two weeks’ notice is not
indicative of constructive termination.72 Defendants assert that accepting a resignation is not
probative of intolerable working conditions and is not in itself an intolerable action on the part of
the employer.73 Defendants contend that requesting two weeks demonstrates that there were not
intolerable working conditions “because an employee who is willing to work an additional two
weeks under allegedly intolerable working conditions is probably not laboring under these alleged
conditions.”74
Defendants assert that it is not clear if Plaintiff is making a gender and/or race-based hostile
work environment claim, but if she is, it also must be rejected.75 Defendants argue that Plaintiff
has not presented any “severe or pervasive evidence of race or gender discrimination . . . to suggest
a finding of a hostile work environment.”76 According to Defendants, although Plaintiff states that
she was not considered part of the executive staff of management, food services “is a function that

69

Id. at 7.

70

Rec. Doc. 34 at 1.

71

Id. at 2 (citing Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998)).

72

Id.

73

Id.

74

Id. at 2–3.

75

Id. at 3.

76

Id. at 4.

11

does not deal with the overall administration of the Center.”77 Moreover, Defendants assert that
Plaintiff does not show how bike-riding during the work day is an example of severe and pervasive
harassment.78 Finally, Defendants contend that Plaintiff has not countered Defendants’ assertion
that Plaintiff received the routine raises that all personnel were paid, but other raises were done
“to stem personnel losses caused by low pay.”79
III. Legal Standard
A. Standard 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.”80 When assessing whether a dispute as to any material fact exists, a court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”81 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.”82
If the record, as a whole, could not lead a rational trier of fact to find for the nonmoving party,
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law.83

77

Id.

78

Id.

79

Id.

80

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322B23 (1986); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994).

81

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398B99 (5th Cir. 2008).

82

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

83

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

12

On a motion for summary judgment, the moving party bears the initial burden of
identifying those portions of the record that it believes demonstrate the absence of a genuine issue
of material fact.84 “To satisfy this burden, the movant may either (1) submit evidentiary documents
that negate the existence of some material element of the opponent’s claim or defense, or (2) if the
crucial issue is one on which the opponent will bear the ultimate burden of proof at trial,
demonstrate that the evidence in the record insufficiently supports an essential element of the
opponent’s claim or defense.”85 If the moving party satisfies its initial burden, the burden shifts to
the nonmoving party to “identify specific evidence in the record, and articulate” precisely how that
evidence supports his claims.86 In doing so, the nonmoving party may not rest upon mere
allegations or denials in its pleadings, but rather must set forth “specific facts showing the existence
of a ‘genuine’ issue concerning every essential component of its case.”87 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
assertions,” or “by only a scintilla of evidence.”88 There is no genuine issue for trial “unless there
is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”89

84

Celotex, 477 U.S. at 323.

85

Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (citing Little v. Liquid Air Corp., 939 F.2d 1293,
1299 (5th Cir. 1991)).

86

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
87

Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992); see also Bellard v. Gautreaux,
675 F.3d 454, 460 (5th Cir. 2012).

88

Little, 37 F.3d at 1075.

89

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 288B89 (1968)).

13

Furthermore, it is well-established that “[u]nauthenticated documents are improper as summary
judgment evidence.”90
B. Standard for a Title VII claim
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, color . . . [or] sex . . .”91 A plaintiff may establish
a violation of Title VII by proving that discrimination has created a hostile or abusive working
environment,92 or by proving disparate treatment on the basis of race or sex.93
The burden-shifting framework established in McDonnell Douglas Corp. v. Green governs
claims alleging discrimination under Title VII.94 To survive summary judgment in a case under
the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of
discrimination or retaliation.95 “To establish a prima facie case, a plaintiff need only make a very
minimal showing.”96 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.97 The defendant must point to admissible evidence in the record,98 but the burden is one of

90

King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).

91

42 U.S.C. § 2000e–2(a)(1).

92

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

93

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

94

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

95

Id. 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).
96

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996).

97

Id.

98

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

14

production, not persuasion.99 The defendant is not required to show that the employment decision
was proper, only that it was not discriminatory.100 “[E]ven an incorrect belief that an employee’s
performance is inadequate constitutes a legitimate, non-discriminatory reason” for an adverse
employment action.101
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.102 Plaintiff can do this by presenting evidence of disparate treatment or
demonstrating that the proffered explanation is false.103
IV. Analysis
A. Whether Plaintiff has established a prima facie case for a Title VII disparate treatment
claim
Defendants argue that Plaintiff’s Title VII claims should be dismissed because Plaintiff has
not suffered an adverse employment action.104 Plaintiff argues that she faced an adverse
employment action when Defendants refused to allow Plaintiff to work during the two weeks of
her notice.105 Moreover, Plaintiff also argues that she was constructively discharged because of

99

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

100

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007). See also Perez v. Region 20 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.”).
101

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

102

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

103

Id.

104

Rec. Doc. 23-3 at 3 (citing Cotright v. Doyal, 195 So. 2d 176 (La. App. 2d Cir. 1967)).

105

Rec. Doc. 30 at 3.

15

“arbitrary and high-handed conduct of the Center’s all-white male management which [P]laintiff
could no longer tolerate.”106
Courts analyze disparate treatment claims under the McDonnell Douglas framework.107
Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case
by showing that she:
(1) is a member of a protected group, (2) was qualified for the position at issue; (3)
was discharged or suffered some adverse employment action by the employer; and
(4) was replaced by someone outside [her] protected group or was treated less
favorably than other similarly situated employees outside the protected group.108
Within the Fifth Circuit, not all negative workplace events constitute “adverse employment
actions” cognizable under Title VII.109 Rather, “adverse employment actions” consist of “ultimate
employment decisions such as hiring, firing, demoting, promoting, granting leave, and
compensating.”110 Denial of leave also constitutes an adverse employment action.111
Moreover, “[t]o prove a constructive discharge, a ‘plaintiff must establish that working
conditions were so intolerable that a reasonable employee would feel compelled to resign.’”112 In
determining whether a reasonable employee would feel compelled to resign, the Fifth Circuit has
considered the relevancy of the following events:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to work under a
106

Id. at 7.

107

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citing McDonnell Douglas, 411 U.S. at 802).

108

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

109

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

110

Id.

111

Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 522 (5th Cir. 2001).

112

Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) (citing Faruki v. Parsons, 123 F.3d 315, 319 (5th
Cir. 1997)).

16

younger supervisor; (6) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (7) offers of early retirement
[or continued employment on terms less favorable than the employee’s former
status] . . . .113
“Discrimination alone, without aggravating factors, is insufficient for a claim of constructive
discharge, as is a discriminatory failure to promote.”114
Here, Defendants do not dispute that Plaintiff is a member of a protected group, was
qualified for the position at issue, was replaced by someone outside her protected group or
was treated less favorably than other similarly situated employees outside the protected group.115
Instead, Defendants only argue that the evidence in the record does not establish that Plaintiff was
discharged or suffered some adverse employment action.
As to whether Defendants actually discharged Plaintiff, in Bourque v. Powell Electrical
Manufacturing Co., the Fifth Circuit determined that a plaintiff was not actually discharged after
she gave two weeks’ notice of her intent to resign, but the employer decided the resignation was
to be effective immediately.116 As a result, Plaintiff’s contention that she was actually discharged
when Defendants did not let her work after giving two weeks’ notice of her intent to resign is
without merit.117 Therefore, the Court must evaluate Plaintiff’s contention that she was
constructively discharged from her position.
Plaintiff states that she was constructively discharged because she was compelled to resign

113

Id. (citing Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)).

114

Id. (citing Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir. 1990); Landgraf v. USI Film Prods., 968 F.2d 427,
429 – 30 (5th Cir. 1992), aff’d, 511 U.S. 244 (1994)).
115

See McCoy, 492 F.3d at 556 (citing Wheeler, 415 F.3d at 405).

116

617 F.2d 61, 64 n.4 (1980).

117

Id.

17

after witnessing a double standard with respect to personnel matters between the white male
management of the Center and the African-American female administrative staff.118 As stated
above, the Fifth Circuit has determined that a plaintiff must show the existence of certain
aggravating factors in order to assert a claim of constructive discharge.119
Here, regarding the first aggravating factor of demotion, Plaintiff has not alleged that she
was demoted from her position.120 Moreover, considering the second factor of reduction in salary,
although Plaintiff alleges that she did not receive a raise while the security staff did receive one,
Plaintiff does not allege that she faced a reduction in salary.121 Third, considering the factor of
reduction of job responsibilities, Plaintiff does not allege that Defendants reduced her job
responsibilities.122 Fourth, regarding whether Plaintiff was reassigned to menial or degrading
work, although Plaintiff alleges that administrative staff members had to perform additional duties
“to take up the slack caused by the management’s dereliction of duty,” Plaintiff does not describe
these duties or allege that the work was menial or degrading.123 Fifth, considering whether Plaintiff
was reassigned to work under a younger supervisor, Plaintiff does not allege that she was
reassigned, nor does she allege that she had to work under a younger supervisor.124 Furthermore,
Plaintiff does not allege that Defendants made any offers of early retirement or continued
employment on terms less favorable than the employee’s former status.125

118

Rec. Doc. 30 at 2, 6.

119

See Brown, 237 F.3d at 566.

120

See id.

121

See id.

122

See id.

123

See id.

124

See id.

18

Thus, the only factor that Plaintiff appears to rely on to establish that working conditions
were so intolerable that a reasonable employee would feel compelled to resign is “badgering,
harassment, or humiliation by the employer calculated to encourage the employee’s
resignation.”126 In Stover v. Hattiesburg Public School District, the Fifth Circuit determined that
a plaintiff’s allegations did not amount to badgering, harassment, or humiliation.127 In that case,
the plaintiff, an African-American female, alleged that she was not provided the same career
development opportunities as a white male in a similar position; she was not allowed comp time
while others in similar positions were allowed comp time; her supervisor exhibited anger, violence,
and shouting; her complaints of discrimination were not investigated; and she was excluded from
prestigious retreats.128
Here, Plaintiff alleges that she was not provided pay raises in the same manner as security
staff; she was not considered a member of management, despite being the manager of the food
service department; she was not entitled to the same perks as male members of management; she
was not consulted about the alleged irregularities in the Food Service Department; and Defendants
abolished an internal review board that ensured that all employees were treated fairly.129 As a
result, similar to Stover, Plaintiff claims that she was denied career opportunities, both in terms of
perks and salary, and Defendants did not properly investigate any potential disciplinary actions.130
Unlike Stover, Plaintiff does not even allege that she witnessed anger, violence, or shouting by her

125

See id.

126

See id.

127

549 F.3d 985, 991–992 (5th Cir. 2008).

128

Id.

129

Rec. Doc. 1-1 at 2–8.

130

549 F.3d at 991–992.

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supervisor or any of Defendants’ management members.131 Moreover, even if Defendants’ actions
did constitute badgering, harassment, or humiliation, Plaintiff does not allege that any actions by
Defendants were “calculated to encourage [Plaintiff’s] resignation.”132 Therefore, Plaintiff’s
allegations do not support a constructive discharge claim, and Plaintiff does not meet her burden
of presenting a prima facie case for a Title VII disparate treatment claim. Accordingly, there are
no genuine issues of material fact in dispute and Defendants are entitled to judgment as a matter
of law on Plaintiff’s disparate treatment claim.
B. Whether Plaintiff has established a prima facie case for a Title VII hostile work
environment claim
Although Plaintiff does not specifically address a hostile work environment claim in her
opposition to Defendants’ motion, she appears to make a Title VII hostile work environment claim
in her petition.133 In their reply to Plaintiff’s opposition, Defendants assert that Plaintiff has not
presented sufficient evidence of race or gender discrimination to support

a hostile work

environment claim.134
“Title VII is violated ‘when the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’”135 There are five elements necessary

131

Id.

132

Brown, 237 F.3d at 566.

133

Rec. Doc. 1-1 at 6 (stating “[o]nly female and African-American employees resigned due to the hostility being
exhibited by [Defendants’] management.”).
134

Rec. Doc. 34 at 4.

135

Vallevillo v. U.S. Dep’t of Hous. and Urban Dev., 155 F. App’x 764, 766 (5th Cir. 2005) (citing Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)).

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to set forth a hostile environment claim:
(1) the employee is a member of a protected group; (2) the employee was subjected
to unwelcome harassment; (3) the harassment was based on her membership in a
protected class; (4) the harassment affected a term, condition, or privilege of her
employment; and (5) her employer knew or should have known of the harassment
and failed to take prompt remedial action.136
Moreover, “[i]n determining whether a hostile work environment exists, courts consider the
‘totality of the circumstances,’ including the frequency of the conduct, its severity, whether it is
physically threatening or humiliating or ‘a mere offensive utterance,’ and whether it interferes with
the employee’s work performance.”137
In Gibson v. Verizon Services Organization, Inc., the Fifth Circuit determined that the
plaintiff did not present sufficient evidence that her coworker’s harassing behavior was based on
sex or race.138 The plaintiff alleged that her coworker left harassing comments on paper on her
desk, refused to help her, lunged for a remote while she was watching television, had a history of
bullying women, and acted erratically in response to a question from the plaintiff.139 The plaintiff
also alleged that a separate coworker kicked her desk three times and a third coworker made a
racial statement in reference to President Obama’s election.140 The Fifth Circuit stated that the
racial comment in reference to President Obama’s election was the only conduct that had a nexus
to race or gender, and considering the totality of the cirucmstances, the comment was “not a
sufficient basis to impute a similar, racial intent to [the coworker’s] separate, unrelated actions and

136

Gibson v. Verizon Servs. Org., Inc., 498 F. App’x 391, 394 (5th Cir. 2012).

137

Id. (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).

138

498 F. App’x at 394.

139

Id. at 393.

140

Id.

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infer that all the conduct was based on race.”141
Here, Plaintiff alleges that she was not considered part of management, management
routinely went bike riding during the day, she was not consulted about alleged irregularities in the
department, and the internal review board was abolished.142 However, unlike the plaintiff in
Gibson, Plaintiff does not allege any behavior that demonstrates that the workplace was permeated
with discriminatory intimidation, ridicule and insult. While the Fifth Circuit stated that one racial
comment was insufficient to find that a plaintiff met her prima facie case for a hostile environment
claim in Gibson, Plaintiff does not even present a single sex-based or race-based comment by any
coworker or supervisor. As a result, Plaintiff has not met her burden of demonstrating a prima
facie case for a hostile environment claim. Accordingly, there are no genuine issues of material
fact in dispute and Defendants are entitled to judgment as a matter of law on Plaintiff’s hostile
work environment claim.
C. Whether Defendants are Entitled to Summary Judgment on Plaintiff’s FMLA Claim
Finally, Plaintiff states that she does not oppose Defendants’ motion to the extent that it
requests dismissal of Plaintiff’s FMLA claim. Accordingly, because Plaintiff has pointed to no
genuine issues of material fact Defendants are entitled to judgment as a matter of law on Plaintiff’s
FMLA claim.
V. Conclusion
Considering that Plaintiff has not established a prima facie case of either her hostile
environment claim or disparate treatment claim, the Court grants Defendants’ motion to the extent
it seeks dismissal of Plaintiff’s Title VII claims. Moreover, considering that Plaintiff does not

141

Id. at 394.

142

Rec. Doc. 30 at 6–7.

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oppose Defendant’s motion to the extent that it requests dismissal of Plaintiff’s FMLA claim, the
Court will dismiss Plaintiff’s FMLA claim.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ “Motion for Summary Judgment”143 is
GRANTED.

15th
NEW ORLEANS, LOUISIANA, this ______ day of August, 2018.
____________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

143

Rec. Doc. 23.

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