Cook v. SyncStream Solutions LLC, et al

Filing 31

ORDER granting 14 Motion for Summary Judgment. Signed by Judge Greg Gerard Guidry on 10/9/19. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERIKA COOK

CIVIL ACTION

VERSUS

NO: 19-00387

SYNCSTREAM SOLUTIONS, LLC
A/K/A DBA ENACT LLC AND CINDY
HEINE

SECTION: T(2)

ORDER
Before the Court is a Motion for Summary Judgment1 and reply brief2 filed by SyncStream
Solutions LLC (“SyncStream”) and Cindy Heine (“Heine”) (collectively, “Defendants”). Erika
Cook (“Plaintiff”) has filed an opposition.3 For the following reasons, the motion for summary
judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
This action involves Plaintiff’s claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. (“Title VII”) and La. C.C. art. 2315 against her former employer,
SyncStream, and her former supervisor, Heine.4 Plaintiff was employed by SyncStream as Director
of Operations from September 12, 2016 to December 29, 2016, and was also “leased” to EnAct,
LLC through an administrative services agreement.5 During her employment, Plaintiff alleges she
was sexually harassed, subjected to religious prayer sessions in the workplace, and retaliated
against after making a formal complaint.6

1

R. Doc. 14.
R. Doc. 30.
3
R. Doc. 22.
4
R. Doc. 1.
5
R. Doc. 22, p.1.
6
R. Doc. 22, p.1.
2

1

Plaintiff alleges that Heine hugged Plaintiff by “pressing her body and breasts hard against
other female employee’s breasts and with her hands touching their backs near their buttocks in a
sexually inappropriate manner.”7 Plaintiff testified that one hug occurred in October 2016, and “it
was literally an all-on hands, like, bear hug.”8 Plaintiff also testified that when she was walking
away, Heine “tapped me toward my lower back when I was leaving the room.”9 A couple of weeks
later, Heine gave her “a really, very tight breast-to-breast hug.”10 These two incidents form the
basis of Plaintiff’s sexual harassment claim.
Plaintiff also alleges that employees were required to engage in Christian prayers
together.11 Plaintiff discussed her concerns with SyncStream’s human resources manager, Virginia
Blanque, but no action was taken to prohibit the behavior from continuing. 12 Plaintiff prepared a
letter outlining her complaints regarding sexual harassment and religious discrimination and gave
the letter to Heine on December 29, 2016.13
Defendants contend they decided to terminate Plaintiff on December 20, 2016 because
their business was declining.14 Defendants intended to inform Plaintiff of her termination at a
December 29, 2016 meeting.15 Once the meeting began, Heine attempted to inform Plaintiff that
she was being laid off, but Plaintiff interrupted by handing Heine a handwritten letter complaining
of sexual harassment and religious discrimination. 16 Defendants continued with their plan to

7

R. Doc. 1, ¶9.
R. Doc. 14-1, 166;2-23.
9
R. Doc. 14-1, 168;23-25.
10
R. Doc. 14-1, 170;4-5.
11
R. Doc. 1, ¶12.
12
R. Doc. 1, ¶9.
13
R. Doc. 1, ¶25.
14
R. Doc. 14-8, p.2.
15
R. Doc. 14-8, p.3.
16
R. Doc. 14-8, p.3.
8

2

terminate Plaintiff and presented her with a pre-prepared termination notice, which Plaintiff
signed.17
Following her termination, Plaintiff filed a charge of discrimination with the U.S. Equal
Employment Opportunity Commission (“EEOC”) alleging her termination was retaliatory and that
she was the victim of discrimination on the basis of her sex (for hugging) and religion (for prayer
in the workplace). 18 On October 19, 2018, Plaintiff filed a second charge of discrimination,
claiming retaliation because Defendants allegedly provided false information to a prospective
employer.19 Specifically, Plaintiff alleged she received a job offer from a company named Takeda
in July 2018, but the offer was revoked in August 2018 because one of Defendants’ representatives,
Gloria Guillory, informed the background check company that Plaintiff was “terminated” as
opposed to specifying that her termination was due to a layoff.20
On January 18, 2019, Plaintiff initiated this action against Defendants for sexual
harassment, a hostile work environment based on religious discrimination, and retaliation. 21
Plaintiff also seeks damages under La. C.C. art. 2315. 22 Defendants now move for summary
judgment asserting that the undisputed material facts show Plaintiff cannot succeed on any of her
claims.23
LAW AND ANALYSIS
Summary judgment is proper where “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”24 When assessing

17

R. Doc. 14-8, p.3.
R. Doc. 14-8, p.4.
19
R. Doc. 14-8, p.4.
20
R. Doc. 14-8, p.5.
21
R. Doc. 1, p.11-14.
22
R. Doc. 1, pp.17.
23
R. Doc. 77-1, pp.3-4.
24
Fed. R. Civ. P. 56(a).
18

3

whether a dispute as to any material fact exists, the court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.” 25 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.”26 The party seeking summary judgment
bears the burden of showing the absence of a genuine issue of material fact.27 “Once the movant
does so, the burden shifts to the nonmovant to establish an issue of fact that warrants trial.”28
1. Plaintiff’s Sexual Harassment Claim
Plaintiff alleges she was subjected to sexual harassment by Heine inappropriately hugging
her twice during her employment.29 Where a harassment claim arises out of a supervisor’s conduct,
there are four elements of a hostile working environment claim: (1) the employee belongs to a
protected class; (2) the employee was subjected to unwelcome sexual harassment; (3) the
harassment was based on the employee’s sex; and (4) the harassment affected a term, condition,
or privilege of employment. 30 Defendants argue summary judgment is appropriate because
Plaintiff cannot prove the third and fourth elements.31
In a same-sex sexual harassment case, as here, the court first determines whether the
conduct in question constitutes discrimination based on sex.32 A plaintiff can show that the alleged
harassment was based on sex in one of three ways. 33 First, the plaintiff may show “that the alleged

25

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994).
27
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).
28
Smith v. Reg'l Transit Auth., 827 F.3d 412, 420 n.4 (5th Cir. 2016).
29
R. Doc. 22, p.9.
30
E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 453 (5th Cir. 2013).
31
R. Doc. 14-8, p.9.
32
La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002).
33
La Day, 302 F.3d at 478.
26

4

harasser made ‘explicit or implicit proposals of sexual activity’ and provide ‘credible evidence
that the harasser was homosexual.’” 34 Second, the plaintiff “can demonstrate that the harasser was
‘motivated by general hostility to the presence of [members of the same sex] in the workplace.’”35
Third, the plaintiff “may ‘offer direct, comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace.’” 36
Plaintiff has not alleged that Heine made proposals of sexual activity or that Heine was
motived by general hostility toward women in the workplace. Thus, Plaintiff must offer direct,
comparative evidence about how Heine treated members of both sexes in the workplace.
Defendants assert Plaintiff cannot establish the alleged harassment was based on Plaintiff’s sex
because “it is undisputed that Heine hugged men and women, without regard to gender.” 37
Defendants cite Plaintiff’s testimony that Heine “likes to greet people that way… [s]he does hug
people.”38 Defendants also cite Heine’s declaration stating, “I frequently use hugs as a way of
greeting people, including my friends and co-workers of all genders,”39 and employee Brian Hall’s
declaration stating, “Heine has hugged me and others in the past, and I have never been offended
by her hugs.”40
Plaintiff’s opposition argues that Heine may have hugged both genders when greeting
them, but the fashion in which she hugged women was “uniquely and overtly inappropriate.”41
Although Plaintiff claims Heine hugged women in a uniquely and overtly inappropriate way,
Plaintiff has not produced any competent summary judgment evidence to contradict Defendants’

34

La Day, 302 F.3d at 478 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140
L.Ed.2d 201 (1998)).
35
La Day, 302 F.3d at 478 (quoting Oncale, 523 U.S. at 80).
36
La Day, 302 F.3d at 478 (quoting Oncale, 523 U.S. at 80).
37
R. Doc. 14-8, p.9.
38
R. Doc. 14-8, p.9 (citing R. Doc. 14-1, p.173).
39
R. Doc. 14-8, p.9 (citing R. Doc. 14-5, ¶15).
40
R. Doc. 14-8, p.9 (citing R. Doc. 14-6, ¶10).
41
R. Doc. 22, p.10.

5

evidence supporting that Heine treated members of both sexes the same in the workplace. Plaintiff
has failed to establish that the alleged harassment was based on her sex, because the undisputed
material facts show that Heine hugged members of both sexes. Thus, the Court finds that
Defendants are entitled to judgment as a matter of law dismissing Plaintiff’s Title VII sexual
harassment claim.
2. Plaintiff’s Hostile Work Environment Claim
Plaintiff alleges she was subjected to a hostile work environment because there was an
expectation “that Christian prayer was required during Morning Huddles.”42 To establish a hostile
work environment claim under Title VII, a plaintiff must show that: (1) the victim belongs to a
protected group; (2) the victim was subjected to unwelcome harassment; (3) the harassment was
based on a protected characteristic; (4) the harassment affected a term, condition, or privilege of
employment; and (5) the employer knew or should have known of the harassment in question and
failed to take prompt remedial action.43
A plaintiff must subjectively perceive the harassment as sufficiently severe or pervasive,
and this subjective perception must be objectively reasonable.44 To determine whether conduct
creates a hostile work environment, the court must consider the frequency of the discriminatory
conduct, its severity, whether it is physically threatening or humiliating, and whether it
unreasonably interfered with the plaintiff’s work performance. 45 Defendants argue summary
judgment is appropriate because Plaintiff cannot meet the severe or pervasive standard.46

42

R. Doc. 1, ¶46.
E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393 (5th Cir.2007).
44
Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.2003) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct.
367, 126 L.Ed.2d 295 (1993)).
45
Frank, 347 F.3d at 138.
46
R. Doc. 14-8, p.14.
43

6

It is undisputed that sometimes morning huddles, occurring on Tuesday and Thursday of
each week, began with moments of silence, and other times, the huddles began with prayers.47
Plaintiff testified that sometimes Heine led the morning huddles, and would sometimes ask “what
did we want to pray about,”48 or say, “Lord God, you know, we’re thankful for ABC, for these
sales, or we’re thankful for this, or I would say generic prayer.” 49 Plaintiff also testified
management made religious references by saying “Lord God” in the office place,50 and sometimes
there were references made “to ‘Lord God’ on calls and terminology around ‘blessed.’”51
Based on the undisputed facts, the frequency and severity of the alleged discriminatory
conduct was limited. Plaintiff did not specifically identify the number of prayers that occurred but
indicated that prayers only occurred briefly and periodically at Tuesday and Thursday morning
meetings. Additionally, Plaintiff testified that she was not required to attend the morning
meetings.52 Plaintiff’s testimony that the prayers made her “uncomfortable”53 fails to demonstrate
that the alleged discriminatory conduct was physically threatening, humiliating, or an unreasonable
interference with her work performance. Plaintiff has, therefore, failed to establish that the alleged
harassment was severe or pervasive under Title VII. Thus, the Court finds that Defendants are
entitled to judgment as a matter of law dismissing Plaintiff’s hostile work environment claims.
3. Plaintiff’s Title VII Retaliation Claim
Plaintiff alleges she was retaliated against by being terminated and by Defendants’ actions
causing her to lose her subsequent job offer.54 Title VII makes it unlawful for an employer to

47

R. Doc. 14-2, 126;14-21.
R. Doc. 14-2, 127;22.
49
R. Doc. 14-2, 128;23-25-129;1.
50
R. Doc. 14-2, 124;10-24.
51
R. Doc. 14-2, 118;18-23.
52
R. Doc. 14-2, 132-134.
53
R. Doc. 14-2, 136;1.
54
R. Doc. 1, ¶57 and ¶63.
48

7

retaliate against an employee who opposes an employment practice that violates Title VII. 55 To
establish a prima facie case of retaliation, a plaintiff must show that (1) she participated in a Title
VII protected activity, (2) she suffered an adverse employment action by her employer, and (3)
there is a causal connection between the protected activity and the adverse action. 56 Summary
judgment is appropriate if the plaintiff cannot support all three elements.57
a) Plaintiff’s Termination
Defendants contend Plaintiff cannot meet her burden of establishing the third element of a
causal connection between the protected activity and the adverse action.58 In retaliation claims, the
plaintiff must show that the protected activity is the “but for” cause of the adverse employment
action.59 The undisputed evidence shows Defendants had no knowledge of Plaintiff’s concerns of
discrimination and harassment when deciding to terminate Plaintiff on December 20, 2016. 60
Heine’s declaration indicates that the decision to terminate Plaintiff was made on December 20,
2016, 61 and that Plaintiff’s letter played no role in her termination. 62 Employee Brian Hall’s
declaration, likewise, states that the decision to terminate Plaintiff was made on December 20,
2016,63 and that the first time he became aware of Plaintiff’s concerns was on December 29,
2016.64

55

42 U.S.C. § 2000e–3(a).
Stewart v. Mississippi Transp. Comm'n, 586 F.3d 321, 331 (5th Cir. 2009) (citing Aryain v. Wal–Mart Stores Tex.
LP, 534 F.3d 473, 484 (5th Cir.2008)).
57
Hunt v. Rapides Healthcare Sys. LLC, 277 F.3d 757, 769 (5th Cir.2001).
58
R. Doc. 14-8, p.17.
59
Claiborne v. Recovery Sch. Dist., 690 F. App'x 249, 259 (5th Cir. 2017).
60
R. Doc. 14-5, ¶13; R. Doc. 14-6, ¶¶5-6.
61
R. Doc. 14-5, ¶10
62
R. Doc. 14-5, ¶13.
63
R. Doc. 14-6, ¶5.
64
R. Doc. 14-6, ¶9.
56

8

Although Plaintiff claims it is contested whether the decision to terminate Plaintiff was
made before or during the December 29, 2016 meeting, 65 Plaintiff has produced no competent
summary judgment evidence to refute Defendants’ evidence showing that the decision was made
on December 20, 2016 before Defendants became aware of Plaintiff’s complaints. The undisputed
material facts, therefore, show that Plaintiff’s complaints were not the “but for” cause of her
termination. The Court finds that Defendants are entitled to judgment as a matter of law dismissing
Plaintiff’s Title VII retaliation claim for Plaintiff’s termination.
b) Plaintiff’s Subsequent Prospective Employment
Plaintiff alleges Defendants retaliated against her by making a false representation to
Plaintiff’s prospective employer. 66 Defendants contend Plaintiff cannot meet her burden of
establishing a prima facie case of retaliation because Defendants’ representations to Plaintiff’s
prospective employer were truthful, 67 and because Plaintiff cannot show that Defendants’
representations caused the prospective employer not to hire Plaintiff. 68
On December 29, 2016, Plaintiff signed a letter acknowledging that she had been informed
that her “current position in SyncStream Solutions LLC/EnAct LLC has been terminated.” 69 In
July 2018, Plaintiff’s prospective employer asked Defendants about Plaintiff’s reason for leaving
and eligibility for rehire.70 Defendants indicated Plaintiff was “terminated” and responded “cannot
comment due to company policy” and “unable to verify” regarding whether Plaintiff was eligible
for rehire. 71 The undisputed material facts support that Defendants’ representation regarding
Plaintiff’s departure from SyncStream were true. Additionally, Plaintiff has failed to present any

65

R. Doc. 22, p.6.
R. Doc. 1, ¶62.
67
R. Doc. 14-8, p.20.
68
R. Doc. 14-8, p.22.
69
R. Doc. 22-11.
70
R. Doc. 22-17.
71
R. Doc. 22-17.
66

9

competent summary judgment evidence to show that Defendants’ response to the prospective
employer’s questions was the “but for” cause of Plaintiff’s failure to obtain the job. Thus, the Court
finds that Defendants are entitled to judgment as a matter of law dismissing Plaintiff’s Title VII
retaliation claim for Plaintiff’s termination.
4. Plaintiff’s Claim Against Heine Under La. C.C. art. 2315
Plaintiff concedes that Heine cannot be sued under Title VII but argues that she has a valid
claim against Heine under La. C.C. art. 2315.72 Defendants contend that Plaintiff’s claims under
La. C.C. art. 2315 have prescribed because the alleged hugs occurred in 2016, and this lawsuit was
not filed until over two years later in January 2019.73 La. C.C. art. 3492 provides, “[d]elictual
actions are subject to a liberative prescription of one year. This prescription commences to run
from the day injury or damage is sustained.” Plaintiff’s allegations involve incidents that occurred
during her employment with SyncStream from September 12, 2016 to December 29, 2016.74 Thus,
the undisputed material facts demonstrate that over a year has passed since the day Plaintiff’s
injury or damage was sustained. Therefore, the Court finds that Defendants are entitled to
judgment as a matter of law dismissing Plaintiff’s claims under La. C.C. art. 2315.
CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that the Motion for Summary
Judgment is GRANTED and Plaintiff’s claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, on this _____ day of October, 2019.
9th

GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE

72

R. Doc. 22, p.16.
R. Doc. 30, p.7.
74
R. Doc. 22, p.1.
73

10