Richard v. St Tammany Parish Sheriff Department

Filing 76

ORDER and REASONS denying 58 Motion for Summary Judgment, as stated within document. Signed by Judge Martin L.C. Feldman on 4/17/2019. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARK RICHARD

CIVIL ACTION

V.

NO. 17-9703

ST. TAMMANY PARISH SHERIFF’S
DEPARTMENT

SECTION “F”

ORDER AND REASONS
Before
judgment.

the

Court

is

the

defendant’s

motion

for

summary

For the reasons that follow, the motion is DENIED.
Background

Mark Richard graduated from the St. Tammany Parish Sheriff’s
Office Police Academy in August of 2013 and began working as a
deputy in the criminal patrol division shortly thereafter.
He alleges that beginning in the fall of 2015, his coworker,
Deputy

Patrick

Penton,

concerning Richard’s age.
time.

repeatedly

made

derogatory

comments

Richard was forty-nine years old at the

Penton would call him an “old man,” ask if he could “still

get it up,” and make other similar comments in front of their
colleagues and in public. 1

Richard asked Penton to stop making

1

During his deposition, Mr. Richard testified as follows
concerning Deputy Penton’s ageist comments:
[L]ike I said in my original report, I can take a joke.
But it was in front of calls for service. We’d be in
front of somebody just got beat up by their husband and
then he’d start saying, “Yeah.
Well, this cop right
here can’t get it up no more because he ain’t taking his
Geritol,” or something ridiculous . . . [I]t became a
1

the

comments

and

complained

to

his

Holloway, but Penton did not relent.

superior,

Corporal

Tony

On February 3, 2016, shortly

after making the complaint, two of Richard’s superiors, Lieutenant
Wayne Wicker and Corporal Tony Holloway, notified Richard that his
ticket-writing privileges would be suspended until March 1, 2016.
They informed Richard that they disagreed with the decision but
that they were under orders from Chief Fred Oswald.
On March 17, 2016, Richard asked Penton to join him for
dinner.

There, Richard expressed that he found the derogatory

age-based

comments

embarrassing

and

unprofessional

and

asked

Penton to stop making them, especially when they were on calls in
front of civilians.

Penton continued to taunt Richard at dinner,

asking “What are you going to do? Report me?”

When Richard

answered in the affirmative, Penton dismissed the threat, stating
that he was close friends with their superior, Corporal Holloway.
Later that night, Richard was patrolling on Million Dollar
Road when he pulled over to speak with a young man he observed
walking alone on the street.

The young man advised that bright

lights caused him to have seizures, so Richard turned off the
vehicle’s forward-facing emergency lights but left on the rearfacing

overhead

lights.

While

obtaining

the

man’s

personal

information, Richard heard a vehicle screech and speed onto the

real disruption to the job. And doing it in front of
victims, calls for service, very unprofessional.
2

road, despite the 15-mph speed limit.

The vehicle momentarily

slowed and then accelerated towards Richard and skidded right past
him, nearly running him over.

Richard promptly contacted dispatch

to report what had occurred.
When

the

driver

braked

and

exited

her

vehicle,

Richard

immediately recognized her as Michaela Rodosta, a young woman he
had

previously

encountered

while

in

the

field.

During

one

incident, he pulled over a car in which she was riding, smelled
marijuana, and arrested the driver (who claimed possession of the
contraband); on another occasion, Richard was called to enforce a
court order against Rodosta, which required him to physically
remove her three-year-old daughter from her custody.

Richard also

was aware that Rodosta had recently posted pictures on social media
which advertised that she was selling marijuana out of her trunk.
Within minutes of Richard’s call, Deputy Penton and Corporal
Holloway arrived and spoke with Rodosta, who claimed that she did
not see Richard because his lights were not illuminated; they
quickly dismissed her from the scene.
On March 21, 2016, the following Monday, Lieutenant Wayne
Wicker called Richard into his office to discuss the incident at
Million Dollar Road.

Although Richard vehemently claimed that his

lights were on, Deputy Penton and Corporal Holloway reported that
they believed Rodosta’s account that his lights were off.

Richard

gave Lieutenant Wicker a written statement of the incident and of
3

the disagreement he had with Deputy Penton earlier that evening.
He also stated that he wanted to make a complaint about the agebased harassment.

Lieutenant Wicker assured Richard that he would

see about making a report.

To Richard’s knowledge, no report was

ever made.
That same day, Lieutenant Wicker met with Corporal Holloway
and ordered him to obtain statements from all witnesses to the
Million Dollar Road incident.

After reviewing statements from Mr.

Richard, Corporal Holloway, Deputy Penton, Michaela Rodosta, and
Kile Mclain (the suspect Richard was investigating that night),
Wicker determined that Richard had parked his vehicle in the middle
of the roadway in the dark with no emergency lights on.

He

concluded that such conduct amounted to a Group 3 safety violation.
A few weeks later, on March 31, 2016, Richard slammed his
hand in a car door while on a call for duty, causing an open break
of a right-hand finger.

He was treated at the St. Tammany Hospital

emergency room and sent home on medical leave.

Richard was out

of work for eleven weeks because the injury caused nerve damage
and

required

physical

therapy.

While

on

leave,

Richard

was

contacted by Human Resources on April 7, 2016 concerning the
Million Dollar Road incident that had occurred the previous month.
He was advised that, because he had failed to turn on his emergency
lights, he was being demoted from road patrol and transferred to

4

the communications division to serve as a dispatcher; it was also
noted that his annual pay would be reduced by nearly $10,000.
Richard promptly requested an administrative review of his
demotion. In accordance with his request, an Administrative Review
Board was convened on May 9, 2016.

After considering testimony

and reviewing evidence, the ARB affirmed Richard’s transfer from
patrol to communications.

Although Richard provided Lieutenant

Wicker with photos Ms. Radosta had posted on social media, in which
she

appeared

to

be

holding

marijuana,

such

evidence

was

not

considered by the ARB.
Richard returned from medical leave on June 21, 2016 and
reported to the Radio Room for his introductory period in the
communications division. 2

Despite still wearing a splint on his

finger and suffering from extensive nerve damage, Richard was
required to type continuously during his 12-hour shifts.

Working

with eight females and one young male, Richard claims he was also
exposed to sexually explicit conversations and conduct by his Radio
Room co-workers.

Richard testified during his deposition that,

beginning with his first shift in the Radio Room, “it was like
Girls Gone Wild episodes, every single one.”

He explained that

female dispatchers, including his immediate rank, Sergeant Amy

2

In accordance with STPSO policy, the introductory period in each
department is twelve months for new hires and six months for
existing employees, like Mr. Richard, who transfer to a new
department.
5

Poppler and Corporal Brittany Harbin, would “talk[] about sexual
stuff, sexual positions, oral sex techniques” and “pass[] a ruler
around showing penis sizes they preferred.”
asserts

that,

on

at

least

four

occasions,

Richard further
Sergeant

Poppler

performed what she called her “sexy dance:”
She would pop her breasts out the top of her shirt
pinching her nipples and squat and then she would jiggle
her breasts -- and she would do it right in front of me
-- and wiggle her ass back and forth in front of me in
this little dance where she shuffled like MC Hammer. 3
Richard

complained

“unprofessional”

and

of

this

“offensive.”

behavior,
After

his

calling
first

week

it
of

training, Richard met with Sergeant Poppler, Corporal Harbin, and
Miranda Mobley, his field training officer (“FTO”) for Phase 1 of
the introductory period.

They advised Richard that he had been

caught falling asleep during two of his shifts; he left that
meeting with a warning.

About three weeks later, on July 18, 2016,

3

Sergeant Poppler admitted during her deposition that she danced
in the Radio Room on multiple occasions, although she denied that
the dance was “sexy:”
Q: Okay. Did you ever do what I believe you called a
“sexy dance”?
A: I never -Q: Are you familiar with them?
A: I never did a sexy -- what they would call a sexy
dance.
Q: Okay.
A: Did I dance? Yes, but not in a sexual manner, no. .
. .
Q: Okay. So you never shook your butt back and forth?
A: It was -- we were laughing on if I had rhythm or not,
and I had no rhythm, but it was not in a sexual manner
or anything like that, no.
6

Richard was called into Lieutenant Toups’s office with Sergeant
Poppler.
Room

They stated that Richard was struggling in the Radio

and

asked

why

conversations.

he

Richard

did

not

explained

participate
that

the

in

workplace

constant

typing

irritated his hand injury and caused a shooting pain in his arm;
he also noted that FTO Mobley was being too hard on him.
that

he

carefully

avoided

the

conversations

He added

because

his

participation could easily be construed as sexually offensive; he
also stated that he wished to make a formal complaint of the
harassment.

Sergeant Poppler allegedly replied that they were not

used to having men in the Radio Room and that she would talk with
the others about his complaint.
When

Richard

returned

to

his

desk,

he

was

immediately

reassigned to Corporal Harbin for the remainder of his Phase 1
training.

The next morning, on July 19, 2016, Corporal Harbin

instructed Richard to take a typing test.

Because the STPSO uses

Computer Aided Dispatch to process 911 calls, it is critical for
dispatchers
typists. 4

in

the

communications

division

to

be

competent

Therefore, typing tests are administered to applicants

4

Captain Donna Schlesinger, STPSO’s Director of Human Resources,
testified during her deposition that most deputies assigned to the
communications division work as dispatchers but that at least one
position does not require the same level of typing prowess as is
required for dispatchers:
Q: Okay. Of the job, the various jobs in the radio room
that you can think of right now, can you think of any
that do not involve typing?
7

before they begin their duties in the Radio Room. 5
attempted the test twice.

Richard

Typing 21 and 22 words-per-minute,

respectively, he failed to meet the 25-word-per-minute “cutoff
score.” Harbin also administered unannounced, written exams, all
of which Mr. Richard successfully completed.

For the three weeks

following his meeting with Lieutenant Toups and Sergeant Poppler,
no one would speak to Richard, and the workplace environment became
increasingly hostile.
After completing his first six weeks of training, Richard was
assigned

to

train

introductory period.

with

Officer

Smith

for

Phase

2

of

the

When he arrived to work for his first day as

a Phase 2 trainee, Richard was advised that he could leave early
because Human Resources needed to see him the next morning.

On

August 9, 2016, Richard reported to Human Resources, where Major
Doug Sharp stated that he was terminated “due to [his] struggling
in the Radio Room.”

Richard asked Major Sharp why he was being

fired when he had passed all of his written exams but was told
that Chief Oswald had made the decision.

A: Oh, gosh. I can’t think of what the person who runs
NCIC, I can’t think of -- she has to type, but she
doesn’t have to type, she wouldn’t have to type at a
certain rate of speed.
5 Although Lieutenant Toups and Corporal Harbin attest in their
affidavits that “Richard had not taken the entrance typing test
that all applicants must take before being hired for the
communications division,” neither affiant explains why the test
was administered three weeks after he began working in the Radio
Room.
8

However, Major Doug Sharp attests in his affidavit that he
made the decision to terminate Richard’s employment:
On August 9, 2016, I determined that Mark Richard had
not met the standards to continue with any training
provided by the STPSO considering Mark Richard was in
his introductory period with the communications division
and had not demonstrated that he could perform the
essential requirements of his job duties, as documented
by Lt. Brandy Toups.
Major Sharp attaches to his affidavit the Employee Counseling Form
issued in connection with Richard’s termination, which provides
that Richard was discharged because he “ha[d] not demonstrated
that he c[ould] perform the essential requirements of his job
duties required to be a Deputy in Communications;” Richard’s
sleeping on duty, difficulty accepting criticism, and inadequate
typing speed were specifically identified as “issues.” 6

But,

according to an End of Phase Evaluation form dated August 7, 2016,
Corporal Harbin recommended that “Richard move on to the radio
phase

of

training,”

but

continue

“to

practice

continue to work on his speed of entry of calls.”

typing

and

[]

This form was

ostensibly signed by Lieutenant Toups on August 8, 2016.

6

The Employee Counseling Form notes that “the following issues
ha[d] occurred” during Richard’s first four weeks of training: (1)
Richard received a verbal warning on June 29, 2016 after he was
observed falling asleep during his shifts on June 24 and 25; (2)
he “began to have issues accepting constructive criticism
regarding his training” on July 9, 2016; (3) he “became
argumentative and began denying errors that he had made” on July
13, 2016; and (4) he failed the CritiCall Keyboarding test twice
on July 19, 2016.
9

Richard submitted an intake questionnaire to the EEOC on
August 24, 2016 and filed a charge of discrimination on June 20,
2017, asserting that he was subjected to an ageist and sexually
hostile work environment and retaliated against each time he
complained to his superiors.

The EEOC issued a right to sue letter

on July 5, 2017.
The following month, on September 27, 2017, Mark Richard sued
the St. Tammany Parish Sheriff’s Department, contending that the
defendant:

(1)

subjected

him

to

a

sexually

hostile

work

environment, in violation of Title VII of the Civil Rights Act;
(2) terminated his employment in retaliation for his complaints of
a sexually hostile work environment, in violation of Title VII;
(3) subjected him to age-based harassment, in violation of the Age
Discrimination in Employment Act; and (4) retaliated against him
for his complaints of an ageist hostile work environment, in
violation of the Age Discrimination in Employment Act; he also
alleged a violation of the Americans with Disabilities Act.
Sheriff

Randy

Smith

moved

to

dismiss

the

complaint,

contending that the sheriff’s department is not an entity capable
of being sued; Richard amended his complaint to name Sheriff Smith
as the sole defendant, rendering the motion to dismiss moot.
Sheriff Smith then moved to dismiss the amended complaint for
failure to state a claim.

In its Order and Reasons dated May 3,

2018, this Court granted the motion to dismiss, in part, as to the
10

ADA claim, and denied the motion, in part, as to the sexual
harassment and retaliation claims under Title VII, as well as to
the age-based harassment and retaliation claims under the ADEA.
Sheriff Smith now moves for summary judgment, contending that no
genuine issue of material fact exists concerning the failure of
Richard’s remaining claims.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.
11

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
“[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence.”

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007) (internal quotation marks and citation omitted).
Ultimately, “[i]f the evidence is merely colorable . . . or is not
significantly

probative,”

summary

judgment

is

appropriate.

Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

Although

the Court must “resolve factual controversies in favor of the
nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d

12

824, 830 (5th Cir. 2013) (internal quotation marks and citation
omitted).
II.
In Counts I and II of his complaint, the plaintiff alleges
violations of Title VII of the Civil Rights Act.

Specifically,

Richard claims that he was subjected to a sexually hostile work
environment in the Radio Room and then fired in retaliation for
reporting the harassment.
A.
Title VII of the Civil Rights Act of 1964 prohibits employers
from discriminating “against any individual with respect to his
compensation,
because

of

terms,

such

national origin.”

conditions,

individual’s

or

race,

privileges
color,

42 U.S.C. § 2000e-2(a)(1).

of

employment,

religion,

sex,

or

Sexual harassment

claims are actionable under this provision in two circumstances:
(1) “[w]hen . . . a tangible employment action resulted from a
refusal to submit to a supervisor’s sexual demands” (often referred
to as a quid pro quo claim); and (2) if there is “severe or
pervasive” sexual harassment creating a hostile work environment.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753-54
(1998).
To establish a hostile work environment claim, a plaintiff
must prove that: (1) he belongs to a protected class; (2) he was
subjected to unwelcome harassment; (3) the harassment was based on
13

sex; (4) the harassment affected a “term, condition, or privilege
of employment;” and (5) his employer knew or should have known of
the

harassment

and

failed

to

take

prompt,

remedial

action.

Hernandez v. Yellow Transp. Inc., 670 F.3d 644, 651 (5th Cir.
2012).
A hostile work environment claim is only actionable if the
harassment is “so ‘severe or pervasive’ as to ‘alter the conditions
of

the

victim’s

environment.’”

employment

and

create

an

abusive

work

Faragher v. City of Boca Raton, 524 U.S. 775, 786

(1998) (quoting Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986)).

In

evaluating

hostile,

courts

consider

whether
the

a

workplace

totality

of

is

the

sufficiently

circumstances,

including the frequency and severity of the conduct, “whether it
is

physically

threatening

or

humiliating,”

and

“whether

it

unreasonably interferes with the employee’s work performance.”
Id. at 787-88 (quoting Harris v. Forklift Systems, Inc., 510 U.S.
17, 23 (1993)).

“[S]imple teasing” and occasional remarks are not

actionable; Title VII is not a “general civility code.”

Id.

(quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,
81 (1998)).

Nonetheless, a claim may be actionable despite a lack

of physical contact.
F.3d

396,

403

(5th

Royal v. CCC&R Tres Arboles, L.L.C., 736
Cir.

2013).

For

Richard’s

claim

to

be

actionable, his work environment must have been “both objectively
and subjectively offensive, one that a reasonable person would
14

find hostile or abusive, and one that [he] in fact did perceive to
be so.”

Faragher, 524 U.S. at 787.

The defendant challenges Richard’s ability to establish the
fourth element of his prima facie hostile work environment claim.
To satisfy the fourth element -- whether the harassment affected
a term or condition of employment -- it “must be sufficiently
severe or pervasive ‘to alter the conditions of [the victim’s]
employment and create an abusive working environment.’”

Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. at 67 (emphasis added). 7
Richard relies on several incidents of harassing conduct.

He

submits that his co-workers and superiors used vulgar and sexually
explicit language during every shift in the Radio Room; they
discussed

oral

sex

techniques,

debated

sexual

positions,

and

passed a ruler to every operator to inquire as to their preferred
penis size.

Additionally, on four occasions, the plaintiff’s

7

Notably, the Fifth Circuit has recognized that:
[a]n egregious, yet isolated, incident can
alter the terms, conditions, or privileges of
employment and satisfy the fourth element
necessary to constitute a hostile work
environment.
The inverse is also true:
Frequent incidents of harassment, though not
severe, can reach the level of pervasive,
thereby altering the terms, conditions, or
privileges of employment such that a hostile
work environment exists. Thus, the required
showing of severity or seriousness of the
harassing conduct varies inversely with the
pervasiveness or frequency of the conduct.
Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th
Cir. 2007).
15

immediate rank, Sergeant Amy Poppler, performed a “sexy dance”
where she “would pop her breasts out the top of her shirt . . .
right in front of [Mr. Richard] -- and wiggle her [butt] back and
forth in front of [him].” 8
To survive summary judgment, the harassment must be “so severe
[or]

pervasive

that

it

destroys

a

protected

opportunity to succeed in the workplace.”

classmember’s

Shepherd v. Comptroller

of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999).

“The alleged

conduct must be more than rude or offensive comments, teasing, or
isolated incidents.”

Hockman v. Westward Communications, LLC, 407

F.3d 317 (5th Cir. 2004) (citing Shepherd, 168 F.3d at 874).
The defendant contends that, although Mr. Richard may have
found the conversations and “dance” to be subjectively offensive,
the conduct was not objectively offensive because it did not
interfere with the performance of his work or involve inappropriate
physical

contact.

The

record

reflects

that

Richard

did

not

participate in the conversations out of fear that his comments

8

Although the defendant offers the affidavit of Corporal Brittany
Harbin, in which she attests that “at no point did Amy Poppler
ever perform a ‘sexy dance’ by ‘squeez[ing] her breasts together
and wiggl[ing] her butt across the office’” and “at no point from
June 21, 2016 through August 9, 2016 did [Harbin], or any others
in the communications division, discuss ‘penis sizes . . ., oral
sex techniques, and positions in which [dispatchers] liked to have
sex,” or “pass a ruler around the room in order to indicate a
preferred length of penis size,” Richard’s deposition and the
Harbin affidavit clearly impact material disputed issues of fact
that make summary relief inappropriate.
16

could be construed as sexual harassment and that he complained to
his co-workers and superiors that he found the activity offensive.
He also was called into a meeting with his superiors where they
asked,

among

other

things,

why

he

did

not

participate

in

conversations in the office.
Richard further testified that the dispatchers engaged in
sexually explicit discussions during “every single one” of his
shifts in the Radio Room.
physically

threatening,

Although the conversations were not

the

record

reflects

that

they

were

frequent and continued despite Richard’s protests that they were
inappropriate.
that

his

Indeed, on one occasion when Richard requested

co-workers

stop

discussing

their

preferred

sexual

positions and techniques, one of the perpetrators retorted: “[I]f
I was a girl surrounded by guys talking like this, I’d sue the
f*** out of this department in federal court.
guy and we’re girls, we can do it.
On

this

discussions

record,

about

sex,

the

It’s okay.”

dispatchers’

coupled

But since you’re a

with

alleged

Sergeant

relentless

Poppler’s

“sexy

dance” in which she exposed her breasts, rise to the level of
severity or pervasiveness necessary to maintain a hostile work
environment claim under the law.

See Farpella-Crosby v. Horizon

Health Care, 97 F.3d 803, 805 (5th Cir. 1996) (upholding district
court’s denial of employer’s motion for judgment as a matter of
law where the plaintiff’s supervisor frequently commented and
17

inquired about the plaintiff’s sexual life); Royal, 736 F.3d at
398 (finding a genuine dispute of material fact as to whether the
plaintiff experienced sexual harassment when she was fired for
unspecific reasons after complaining that two coworkers visited
her small office several times in the four-day period she worked
there, hovered over her, and sniffed her in a sexually suggestive
manner).
The defendant next submits that Richard cannot establish the
final element of his prima facie harassment claim – that the STPSO
knew or should have known of the harassment yet failed to take
prompt, remedial action.
deposition

that

Sergeant

Although Richard testified during his
Poppler’s

“dance”

ceased

after

he

complained to Lieutenant Toups on July 18, 2016, he also testified
that he was immediately ostracized by his co-workers following his
complaint and subjected to unannounced typing tests and written
exams.

Because a genuine factual dispute exists as to whether

Lieutenant Toups took prompt and appropriate remedial action,
summary dismissal of Richard’s Title VII hostile work environment
claim is inappropriate.
B.
Richard also complains that the defendant retaliated against
him when he complained of the sexual harassment, in violation of
Title VII.

18

Like employment discrimination claims, retaliation claims
under Title VII are governed by the McDonnell Douglas burdenshifting framework.

See LeMaire v. La. Dep’t of Transp. & Dev.,

480 F.3d 383, 388 (5th Cir. 2007) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973)).

Under that framework, an employee

must first establish a prima facie case of retaliation by showing
that: (1) he engaged in a protected activity; (2) his employer
took action that a reasonable employee would have found “materially
adverse;” and (3) a causal link exists between the protected
activity and the adverse action.

Burlington N. & Santa Fe. Ry.

Co. v. White, 548 U.S. 53, 68 (2006); McCoy v. City of Shreveport,
492 F.3d 551, 556-57 (5th Cir. 2007).

If the employee makes such

a showing, the familiar burden-shifting framework identified above
applies:

the

employer

must

articulate

legitimate,

non-

discriminatory reasons for its employment action and then, if
articulated, the burden shifts back to the employee to show that
the employer’s proffered reasons are a pretext for its actual
retaliatory purpose.

See id.

Under Title VII, “[a]n employee has engaged in protected
activity when []he has (1) ‘opposed any practice made an unlawful
employment practice’ by Title VII or (2) ‘made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding or hearing’ under Title VII.”

Douglas v. DynMcDermott

Petroleum Operations Co., 144 F.3d 364, 372-73 (5th Cir. 1998)
19

(quoting 42 U.S.C. § 2000e-3(a)).

To satisfy the opposition

requirement, 9 the plaintiff “need not prove that the conduct []he
opposed rose to the level of a Title VII violation, but []he must
at least show a reasonable belief that it did.”

Taliaferro v.

Lone Star Implementation & Electric Corp., 693 F. App’x 307, 310
(5th Cir. 2017) (per curiam) (quoting E.E.O.C. v. Rite Way Serv.,
Inc., 819 F.3d 235, 237 (5th Cir. 2016)).
It is undisputed that Richard engaged in protected activity
on July 18, 2016 when he complained to his superior, Lieutenant
Toups, about the sexually explicit conduct to which he had been
subjected in the Radio Room.
that

Richard

suffered

a

The defendant also does not dispute

materially

adverse

action

when

his

employment was terminated on August 9, 2016. Rather, the defendant
submits that Richard can neither establish the causation element
of his prima facie case, nor rebut the defendant’s proffered reason
for his termination.
“Title VII retaliation claims require proof that the desire
to retaliate was the but-for cause of the challenged employment
action.”

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352

(2013).

In determining the existence of a causal link, courts

9

Because Richard did not file his EEOC charge or otherwise
participate in any proceeding under Title VII until after the
alleged retaliatory employment action occurred, the participation
clause cannot form the basis of his retaliation claim.
See 42
U.S.C. § 2000e-3(a).
20

have

considered

disciplinary

three

record;”

factors:

(2)

“whether

(1)
the

“the

employee’s

employer

past

followed

its

typical policy and procedures in terminating the employee;” and
(3) “the temporal relationship between the employee’s conduct and
discharge.”

See Nowlin v. Resolution Trust Corp., 33 F.3d 498,

508 (5th Cir. 1994) (noting that “[t]his analysis is highly fact
specific”).
Although it is not factually disputed that Richard met with
his superiors on two occasions regarding disciplinary issues that
arose shortly after he began working in the Radio Room, it is not
entirely clear from the record that STPSO followed its policies
and procedures in administering a typing exam to Richard nearly
one month after he began working in the Radio Room.

While

Lieutenant Toups and Corporal Harbin attest in their affidavits
that “Richard had not taken the entrance typing test that all
applicants must take before being hired for the communications
division,” neither affiant explains why the test was administered
three weeks after he began working in the Radio Room.
Similarly, Sergeant Poppler confirmed during her deposition
that typing tests are administered to Radio Room employees prior
to the commencement of their duties and that she did not know why
Richard was not tested in conformity with that policy:
Q: . . . You, basically, told me what testing was done
when somebody comes into the radio room, and I think you
said the first thing is CritiCall, and that’s the typing.
21

A: Yes, sir.
Q: Okay. And, for whatever, reason, that did not happen
in Mr. Richard’s case.
A: Yes, sir.
Q: Okay. And you don’t know why?
A: No, sir.
Moreover, the record reveals that Richard was terminated only three
weeks after he lodged his July 18 complaint with Lieutenant Toups.
STPSO’s failure to comply with its policies, coupled with the close
proximity

in

time

between

Richard’s

protected

activity

and

termination, are sufficient to support his prima facie case of
unlawful retaliation.

See Stephens v. Bd. of Supervisors, No. 16-

6885, U.S. Dist. LEXIS 211800, at *13 (E.D. La. Dec. 27, 2017)
(“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 proximity alone.”) (citations omitted).
Finally, genuine factual disputes exist concerning whether
the

defendant’s

proffered

reason

for

terminating

Richard’s

employment – his “struggling in the Radio Room” - is pretext for
retaliation.

To prove pretext, “the plaintiff must rebut each .

. . nonretaliatory reason articulated by the employer.”
492 F.3d at 557.

McCoy,

Stated differently, “[a]n employee establishes

pretext by showing that the adverse action would not have occurred
but

for

the

employer’s

retaliatory

22

reason

for

the

action.”

Rodriguez v. Brownsville Indep. Sch. Dist., 739 F. App’x 227, 231
(5th Cir. 2018) (per curiam) (unpublished) (citing Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)).

Thus, to

survive summary judgment, “the plaintiff must show a conflict in
substantial evidence on the question of whether the employer would
not have taken the action but for the protected activity.”

Id.

(quotations omitted).
Sheriff Smith submits that Richard was terminated for his
“failure to meet the requirements of the communications division
position

and

his

accompanying

job

performance

issues.”

For

support, the defendant points to the affidavit of Major Doug Sharp,
in which he attests that Richard was terminated because he “had
not demonstrated that he could perform the essential requirements
of his job duties, as documented by Lt. Brandy Toups.”

Major Sharp

also attaches to his affidavit the Employee Counseling Forming
issued in connection with Richard’s termination, which identifies
Richard’s sleeping on duty, difficulty accepting criticism, and
inadequate typing speed as “issues.” 10

10

Specifically, the Employee Counseling Form provides that “the
following issues [] occurred” during Richard’s first four weeks of
training: (1) Richard received a verbal warning on June 29, 2016
after he was observed falling asleep during his shifts on June 24
and 25;
(2) he “began to have issues accepting constructive
criticism regarding his training” on July 9, 2016; (3) he “became
argumentative and began denying errors that he had made” on July
13, 2016; and (4) he failed the CritiCall Keyboarding test twice
on July 19, 2016.
23

In response, Richard first presents evidence to demonstrate
the defendant’s retaliatory animus. Pointing to his own deposition
testimony for support, Richard submits that, immediately after
lodging his sexual harassment complaint with Lieutenant Toups on
July 18, 2016, he was ostracized by his co-workers in the Radio
Room. He also was assigned a new trainer, Brittany Harbin, another
one of his alleged harassers, who immediately required him to take
an unannounced typing test.
Richard also points to evidence that raises serious disputed
fact questions about the defendant’s proffered reasons for his
discharge. According to the affidavit of Major Doug Sharp, Richard
was terminated because he “had not demonstrated that he could
perform the essential requirements of his job duties, as documented
by Lt. Brandy Toups.” (emphasis added).

However, according to an

End of Phase Evaluation form dated August 7, 2016, Corporal Harbin
recommended that “Richard move on to the radio phase of training,”
but continue “to practice typing and [] continue to work on his
speed of entry of calls.”

The form, which was ostensibly signed

by Lieutenant Toups on August 8, 2016, explicitly states in bold
print that “trainee is recommended for: advancement,” as opposed
to “extension” or “termination.”

And notably absent from the form

is any reference to Richard’s sleeping on the job or his difficulty
accepting criticism.

24

Aside from the End of Phase Evaluation Form, Richard presents
additional evidence to suggest that his typing speed was not truly
a factor in his termination.

Corporal Harbin and Lieutenant Toups

attest in their affidavits that “[t]he ability to type faster than
25 words per minute is a requirement for communications division
deputies.”
deposition

However, Captain Schlesinger recognized during her
that

at

least

one

position

in

the

communications

division does not require the level of typing prowess that is
required for dispatchers:
Q: Okay. Of the job, the various jobs in the radio room
that you can think of right now, can you think of any
that do not involve typing?
A: Oh, gosh. I can’t think of what the person who runs
NCIC, I can’t think of -- she has to type, but she
doesn’t have to type, she wouldn’t have to type at a
certain rate of speed.
Additionally,
deposition

that

Sergeant
successfully

Poppler

confirmed

passing

the

typing

during
test

her
is

a

prerequisite to commencing work in the Radio Room and that she had
no idea as to why Richard was not tested until nearly a month after
he began working in the Radio Room:
Q: We talked about the new hire and the transfer
situation.
You, basically, told me what testing was
done when somebody comes into the radio room, and I think
you said the first thing is CritiCall, and that’s the
typing?
A: Yes, sir.
Q: Okay. And, for whatever reason, that did not happen
in Mr. Richard’s case?
A: Yes, sir.
25

Q: Okay. And you don’t know why?
A: No, sir.
. . .
Q: Okay.
The next line (as read), “Day 13, July 19,
2016,” so this is the day after the meeting, it says (as
read),
“Deputy
Richard
was
given
the
CritiCall
keyboarding tests.” That’s the typing tests; right?
A: Yes, sir.
Q: Okay. And that’s the one you told me that, in your
experience, everybody gets that test the first.
It’s
the first thing that they’re given; right?
A: Yes, sir.
Q: Okay. And you don’t know why he didn’t get one when
he started on his first day?
A: No, sir.
Q: Do you know why he’s getting one on day 13?
A: I -- I don’t know.
Sergeant Poppler also could not explain why Richard was
permitted to continue working in the Radio Room for three weeks
after failing a typing test that was purportedly a pre-requisite
to serving as a dispatcher in the Radio Room:
Q: . . . Do you know why he wasn’t fired immediately
when he failed the typing test?
A: I couldn’t tell you.
. . .
Q: Do you know why he was allowed to work for three more
weeks before he was terminated?
A: I don’t know that answer?
Q: Okay. Do you know why he was never retested on his
typing?
A: No, sir.
Finally, the record is unclear as to who made the decision to
terminate Mr. Richard’s employment.

Captain Schlesinger, STPSO’s

Director of Human Resources, testified during her deposition that
26

she does not know for sure who made the decision to discharge
Richard, but that it was either Major Hebert, Major Palmisano,
Chief Oswald, or Sheriff Strain.
affidavit

that

he

made

the

But, Major Sharp attests in his

decision

to

terminate

Richard’s

employment:
On August 9, 2016, I determined that Mark Richard had
not met the standards to continue with any training
provided by the STPSO considering Mark Richard was in
his introductory period.
Viewing the facts, on this record, there is a serious fact
dispute about whether the plaintiff would not have been fired but
for his complaint to Lieutenant Toups about the sexually explicit
conversations and conduct to which he had been exposed in the Radio
Room.

Accordingly, summary judgment in favor of Sheriff Smith as

to Richard’s Title VII retaliation claim is not warranted.
III.
The plaintiff also alleges that the defendant violated the
Age Discrimination in Employment Act by creating an ageist hostile
work

environment

and

then

retaliating

against

him

for

his

complaints of age-based harassment. Richard contends that Deputy
Penton frequently made offensive, ageist comments towards him and
that his complaints of age-based harassment led to the loss of his
ticket-writing privileges and his subsequent demotion to the Radio
Room.

27

A.
The ADEA prohibits an employer from taking adverse action
against its employee because of the employee’s age.

29 U.S.C.

§ 623(a); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 170 (2009).
It also creates a cause of action for hostile work environment
based on age discrimination.
F.3d 435, 441 (5th Cir. 2011).

Dediol v. Best Chevrolet, Inc., 655
To establish a prima facie case of

an ageist hostile work environment, the plaintiff must establish:
(1) he was over the age of 40; (2) [he] was subjected to
harassment, either through words or actions, based on
age; (3) the nature of the harassment was such that it
created an objectively intimidating, hostile, or
offensive work environment; and (4) there exists some
basis for liability on the part of the employer.
Id.

A work environment is hostile if is it “permeated with

discriminatory

intimidation,

ridicule,

and

insult,

that

is

sufficiently pervasive to alter the conditions of the victim's
employment;” to meet this standard, the conduct must be both
objectively and subjectively offensive.

Id. (quoting Alaniz v.

Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009)).
Here, Richard satisfies the first prong of his prima facie
case because he is over 40 years old.

He also presents evidence

to satisfy the second prong – that he was subjected to harassment
based on age – through his testimony that Deputy Patrick Penton
“constantly” made age-based, derogatory comments toward him on
various occasions.

He was called names like “old man” and asked

28

whether he could “still get it up.”

Penton would also ask whether

Richard needed to take Geritol or have Jello to digest his food.
To satisfy the third element – that the harassment created a
hostile work environment - Richard must demonstrate a genuine issue
of

material

fact

subjectively
Penton’s

that

the

offensive.

comments

were

conduct

Although

was
the

subjectively

both

objectively

and

reflects

that

record

offensive,

in

light

of

Richard’s repeated requests that Penton stop and his complaints to
Corporal

Holloway

and

Lieutenant

Wicker,

whether

they

were

objectively offensive is less clear on this record.
To evaluate whether conduct is objectively offensive, courts
consider: “(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.”

Id. (quoting

EEOC v. WC&M Enters., 496 F.3d 393, 399 (5th Cir. 2007)).

The

Fifth Circuit has held that repeated, profane references to the
claimant’s

age

within

the

work

setting

actionable hostile work environment claim.

may

give

rise

to

an

Id. at 443-444.

According to Sheriff Smith, Penton’s ageist comments were not
objectively offensive because they did not affect Richard’s job
performance or any other aspect of his professional duties.

For

support, Sheriff Smith invokes Reed v. Neopost USA, Inc., 701 F.3d
434, 443 (5th Cir. 2012), in which the Fifth Circuit held that an
29

employee presented no genuine issue of material fact that his work
environment was hostile where he claimed that “various coworkers
called

him

‘grandpa.’”

names

like

‘old

man,’

‘old

fart,’

‘pops,’

and

The Fifth Circuit reasoned that the claimant provided

little detail as to the identity of his harassers or the frequency
of their comments, presented no evidence that the comments were
physically threatening or humiliating, and failed to indicate how
the comments interfered with his job performance.

Id.

Sheriff Smith’s reliance on Reed is misplaced.
reflects

that,

within

a

few

months

after

they

The record

began

working

together, Deputy Penton began to make derogatory comments about
Richard’s age.

Although not physically threatening, the comments

were felt to be humiliating, vulgar in nature, and frequently made
“in front of calls for service, in public, [and] in restaurants.” 11
Relatedly, Mr. Richard explained during his deposition that the
derogatory comments interfered with his work performance because
they were constant and made while responding to calls:
So, Penton and I would work together and the derogatory
comments would just . . . You know, after a while, a
fly’s around bugging you, it’s one thing. When you’ve
got flies constantly around you, it becomes a real
problem. But that’s how it was, it was like, it became
a real disruption to the job. And doing it in front of
victims, calls for service, very unprofessional.

11

Whether they were or were not must await trial on the merits.
30

Richard also testified that he reported the comments to his
immediate superior, Corporal Holloway, but that his complaints
were disregarded.

Relatedly, Penton did not relent, and instead

is said to have mocked Richard for threatening to report him again.
On this record, a genuine issue of material fact exists as to
whether the STPSO was an ageist, hostile work environment for
Richard.
B.
Richard next contends that the defendant retaliated against
him for complaining of the ageist comments.

To establish a prima

facie case of retaliation under the ADEA, the claimant must show
“(1) that he engaged in a protected activity, (2) that there was
an adverse employment action, and (3) that a causal link existed
between the protected activity and the adverse employment action.”
Wooten v. McDonald Transit Ass’n. Inc., 788 F.3d 490, 496-497 (5th
Cir. 2015).
Richard bases his ADEA retaliation claim on two incidents:
(1) the revocation of his ticket-writing privileges after he
complained to Corporal Holloway about Penton’s derogatory, ageist
comments, and (2) his transfer from the criminal patrol division
to the Radio Room after he reported Penton’s age-based harassment
to Lieutenant Wicker.

It is undisputed that Richard engaged in

protected activity each time he complained to his superiors about
Penton’s derogatory, age-related comments.
31

However, Sheriff Smith

submits that Richard cannot prove that he suffered an adverse
employment action, or that his complaints of ageist harassment
were the but-for cause of either adverse decision.
“To establish an adverse employment action [in the context of
an

ADEA

retaliation

reasonable

claim],

employee

would

the

plaintiff

have

found

must

the

show

that

challenged

‘a

action

materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge
of

discrimination.’”

Wooten,

788

F.3d

at

499

n.5

(quoting Burlington N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53,
68

(2006))).

In

other

words,

a

retaliation

claim

can

be

actionable, even though the employment action taken was not an
“ultimate employment decision[].”

See McCoy, 492 F.3d at 560.

Here, Richard submits that his ticket-writing privileges were
suspended from February 3, 2016 until March 1, 2016 and that he
was

transferred

from

criminal

division on April 7, 2016.

patrol

to

the

communications

Because the record reflects that

Richard’s transfer to the Radio Room was accompanied by a reduction
of nearly $10,000 in annual pay and that the one-month suspension
of

his

ticket-writing

privileges

significantly

reduced

his

authority as a deputy in the criminal patrol division, material
fact issues clearly exist as to whether each employment action was
“materially

adverse.”

See

id.

at

561

(“[P]lacement

on

administrative leave may carry with it both the stigma of the
32

suspicion

of

wrongdoing

and

possibility

significant

emotional

distress.”).
Genuine factual disputes also exist as to the third element
of Richard’s prima facie case – whether his protected activity was
the but-for cause of each adverse employment action he suffered.
See Heggemeier v. Caldwell Cty., 826 F.3d 861, 869 n.4 (5th Cir.
2016) (“The ADEA requires ‘but-for causation.’”) (quoting Grosss
v. FBL Financial Services, Inc., 557 U.S. 167, 177 (2009)).
respect

to

the

suspension

of

his

ticket-writing

With

privileges,

Richard submits that Penton began making derogatory comments about
his age during the fall of 2015, that he complained to Corporal
Holloway about the age-based harassment, and that he was notified
on February 3, 2016 that his ticket-writing privileges would be
suspended.

And as for Richard’s demotion to the Radio Room, the

record shows that the decision was made on April 7, 2016 – only 17
days after Richard lodged his March 21 complaint with Lieutenant
Wicker. The proximity in time between Richard’s protected activity
and each adverse employment action he suffered could be sufficient
to support his prima facie case of unlawful retaliation.

See

Stephens v. Bd. of Supervisors, No. 16-6885, U.S. Dist. LEXIS
211800, at *13 (E.D. La. Dec. 27, 2017) (“In cases with ‘[c]lose
timing between an employee’s protected activity and an adverse
action against [her],’ a plaintiff may satisfy the causation

33

requirement

of

her

prima

facie

case

through

the

evidence

of

proximity alone.”) (citations omitted).
Finally, the defendant fails to articulate any legitimate,
non-retaliatory for the revocation of Richard’s ticket-writing
privilege.

And while the defendant submits that Richard was

transferred to the Radio Room because he committed a Group 3 safety
violation in connection with the Million Dollar Road incident,
genuine factual disputes exist as to whether the defendant’s
proffered reason is pretext for retaliation.
To establish pretext, “the plaintiff must show a conflict in
substantial evidence on the question of whether the employer would
not

have

taken

the

action

but

for

the

protected

activity.”

Rodriguez v. Brownsville Indep. Sch. Dist., 739 F. App’x 227, 231
(5th Cir. 2018) (per curiam) (unpublished).

Richard first submits

that it is unclear from the record who made the decision to
transfer him to the Radio Room. Although Lieutenant Wicker attests
in his affidavit that that he investigated the Million Dollar Road
incident and determined that Richard had committed a Group 3 safety
violation, he acknowledges that he reported his conclusions to
Captain Richard Magee and that they were reviewed by his superiors
Human Resources.

He then clarified during his deposition that

Captain Donna Schlesinger, the Director of Human Resources, made
the decision.

But, Captain Schlesinger testified during her own

deposition that she was on sick leave when Richard was transferred
34

and, therefore, was not responsible for the decision.

Further

complicating matters, the Employee Counseling Form associated with
the incident bears the signatures of Captain Richard Magee of
Criminal Patrol and Major Sterling Hebert of Human Resources but
does not identify either individual as the ultimate decisionmaker.
Richard

next

points

to

Lieutenant

Wicker’s

inability

to

identify any other instance in which a patrol deputy had been
demoted for the improper use of emergency lights in a non-chase
situation:
Q: Okay. So the flip side of that was you don’t know of
any specific Class 3 demotions, other than Richard,
correct?
A: Correct. I thought I said that already.
Q: Okay.
All right.
And same question regarding
emergency lights. How many demotions are you aware of
for deputies because of a violation of emergency lights,
not involving a chase?
A: I’m not aware of any.
Relatedly, Richard presents evidence, in the form of his own
deposition testimony, that another deputy suffered no disciplinary
action whatsoever after engaging in at least two unprovoked acts
of violence with members of the public.

Richard testified that,

while training to work as a patrol deputy, he witnessed Deputy
Cecil Hoyt choke a young man who had already been restrained and
slam an intoxicated woman’s head to a concrete floor.

Richard

further testified that, when he reported these incidents to his
superiors,

he

was

called

to

see

Major

Porter

and

Caminita, who accused him of doing “something wrong.”
35

Lieutenant

Further compounding the presence of material disputed fact
issues are the questionable circumstances surrounding the Million
Dollar Road incident.

It is undisputed that Lieutenant Wicker’s

finding that Richard positioned his squad car in the middle of the
roadway with no emergency lights on, as well as his determination
that Richard committed a Class 3 safety violation, are based solely
upon written statements from five witnesses: Mr. Richard, Deputy
Penton (Richard’s harasser), Corporal Holloway (the superior to
whom Richard initially complained about the age-based harassment),
Kyle Mclain (a bystander), and Michaela Rodosta (a woman Richard
believes

attempted

to

kill

him).

That

the

two

individuals

responsible for creating and maintaining Richard’s ageist hostile
work environment provided statements to Wicker - that Richard
submits are false - raises serious questions as to the validity of
Wicker’s findings.
Finally,
plaintiff’s

although

alleged

Lieutenant

non-use

of

Wicker

overhead

determined

emergency

lights

that
was

improper, he acknowledged during his deposition that he is unaware
of any STPSO regulation that would establish the proper use of
emergency overhead lights:
Q. [T]here’s no rule that you can point me to that said
he should have had one, emergency lights on at all, or
two, front and back on, at all? I understand it might
be common sense to do it, but there’s no written
regulation that says that, is there?
A. Not that I’m aware of.

36

Lieutenant Wicker further conceded that deputies have discretion
to decide how and when to deploy their overhead emergency lights:
Q. . . . I’m just wondering, it would be the deputy’s
discretion on which of the emergency lights to deploy,
and this is specific to the Million Dollar Road incident,
it would have been Mr. Richard’s discretion which lights
to use, correct[]?
A. I guess the answer is yes.
In light of serious disputed fact questions that turn upon
the credibility of witnesses, summary dismissal of Richard’s ADEA
retaliation claim is patently inappropriate.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendant’s motion for summary judgment is hereby DENIED.

New Orleans, Louisiana, April 17, 2019

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

37