Jackson v. Brennan
ORDER AND REASONS GRANTING IN PART AND DENYING IN PART 37 Motion for Summary Judgment. IT IS FURTHERED ORDERED that Defendants motion regarding Plaintiff's disparate treatment claim for being required to work overtime is GRANTED. IT IS FURTHE RED ORDERED that Defendants motion regarding Plaintiff's disparate treatment claim for being denied leave time is DENIED. IT IS FURTHERED ORDERED that Defendants motion regarding Plaintiff's hostile work environment claim is GRANTED. Signed by Magistrate Judge Karen Wells Roby on 11/17/2021. (jeg)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTINA R. JACKSON
NUMBER: 19-12403 (4)
LOUIS DEJOY, UNITED STATES
SECTION: ROBY (4)
ORDER AND REASONS
BEFORE THE COURT, is a Motion for Summary Judgment filed by Louis DeJoy, the
United States Postmaster General. Rec. Doc. 37. The motion is opposed. Rec. Doc. 50.
A. The Original Complaint
Plaintiff, Christina Jackson (“Jackson”), a white female letter carrier with the office for
twenty (20) years filed the subject action alleging various claims of discriminatory conduct by
Louis Dejoy, United States Postmaster General (“Defendant” or “USPS”) stemming from her
employment at the Chalmette Post Office (“CPO”). R. Doc. 11. Jackson complaint arises out of
the actions of Gordon Tunnell (“Tunnell”), her immediate supervisor who is black, and Denise
Trepagnier (“Trepagnier”), the Postmaster at the CPO during the time of the events, who is also
black. Id. She alleges reverse discrimination, disparate treatment, and hostile work environment.
Id. Tunnell supervised Jackson from August 2017-July 2018. Rec. Doc. 37-13. He began working
as a supervisor for the first time at the CPO and was later detailed as Postmaster in Donaldsonville
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in September 2018. Rec. Doc. 37-7. Trepagnier served as Postmaster at the CPO from Summer
2017-Summer 2018 and retired in December 2018. Rec. Doc. 37-8, p. 6, ln. 12-15.
According to the Original Complaint, the Plaintiff, in describing the work environment
points out that the leadership and the majority of letter carries at the Chalmette Post were black,
rendering her the minority. See, Rec. Doc. 1 ¶ 8 & 10. Jackson initially alleged seven instances of
alleged reverse discrimination which seemingly occurred between September 15, 2017-November
2017, when the office was managed by Tunnell and Trepanier.
Jackson alleges that the instances of discrimination ranged from denial of leave (annual
and sick), requiring her to work overtime, impeding her ability to testify in a court proceeding
against a black coworker, singling her out for reprisals regarding an office-wide route inspection,
and threatening her with reprisal after she had initiated a FMLA request. Id. at p. 2-3. Jackson
contends that Tunnell denied her leave request on September 11, 2017 for September 15, 2017 to
attend her sons school event. Id. at p. 4. She contends that while she placed the leave form on his
desk and followed-up with a text to which he acknowledged; her request was denied with no
explanation. Id. According to Jackson, black employees were not routinely denied leave and
instead were being granted more extravagant leave as compared to white employees. Id. at p.5.
Jackson therefore believes that the denial of this leave request was because she is white.
Jackson also complains about being forced to work overtime on three occasions while black
employees were rarely, if ever, forced to work overtime. Id. at ¶ 10. She alleges that she completed
request for assistance forms but was advised that other workers were able to complete their work
quickly and leave work. Id.
She alleges further that a few weeks later, Tunnell called a group meeting regarding
upcoming route inspections. Id. He informed the employees that if everyone opted out of the
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inspection that they would be canceled. Id. Jackson alleges that she was the only employee who
refused to opt out of the inspection because it would result in an extension of the Arabi routes by
an additional hour, one of which is her responsibility. Id. Jackson alleges that Tunnell singled her
by asking her coworkers to talk with her about the inspection request. Jackson contends that in
addition to the scornful looks she received from coworkers, the calls she received constituted
harassment and violated her first amendment right to complain about workplace conditions.
In November 2017, Jackson alleges that a coworker told her that Tunnell, while on the
workroom floor stated that he, “would not go down easy with this EEO.” Rec. Doc. 37-4. This
statement was made when Jackson was on FMLA leave. Id. Jackson does not allege that she was
present when the statement was made, but she does allege that she viewed the statement as a threat
and that she felt intimidated. Jackson further alleges that from November 20-25, 2017, Tunnell
denied her leave requests after she activated the process through FMLA by Interactive Voice
Recorder System after witnessing violence in the workplace by a black coworker against a white
supervisor. Jackson remained on leave until February 21, 2018. See Rec. Doc. 37-11, Trepagnier
She alleges that she was subpoenaed to testify at the criminal trial but Tunnell who
purportedly was coordinating the timing of the employees to testify in an effort to manage the
office staffing, refused to allow her to go to court. Id. She also alleges that the black employee who
was involved in the assault had family members go to CPO and threaten to come back to “harm
employee witness.” Id.
Since Jackson was a witness, she alleges that this rendered the workplace hostile. As a
result, she completed a Report of Hazard and sought assistance from the Employee Assistance
Program seeking leave due to stress of participating in the case, the alleged route inspection
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coercion, and daily harassment. Subsequently, the black employee was convicted of assault,
however Jackson alleges that Tunnell attempted to have her reinstated to the CPO, in order to
harass and intimidate Plaintiff and others.
Jackson alleges that Tunnell and Trepagnier (although there are no facts pled regarding
Trepagnier) intentionally inflicted emotional distress in violation of the State Constitution and as
a result she has been under the care of a doctor since November 2017. Id. Jackson further alleges
that she sustained loss wages, pain and suffering, mental anguish, loss of enjoyment of life, medical
expenses, liquidated damages, and attorney’s fees. Id.
B. First Amended Complaint
On November 2019, Jackson filed an amended complaint and generally alleged that
Trepagnier, worked with Tunnell to purposefully ensure that the white employees would work in
an environment in which they were subjected to fear, harassment, threats of physical violence, and
reprisals. Rec. Doc. 11, p.4. Jackson also alleged that as Tunnell’s direct supervisor, Trepagnier
supported and approved of Tunnell’s alleged discriminatory actions. Id. Employees allegedly
complained to Trepagnier about the discrimination they suffered at the hands of Tunnell. Id.
Jackson generally alleges that Trepagnier tolerated, condoned, and encouraged
mistreatment of white employees that amounted to prejudicial, disparate treatment. Id. Jackson
complains that the Tunnell and Trepagnier hired a majority of black employees even though the
district is mostly white. Id. Jackson also alleges that Trepagnier and Tunnell hired back candidates
with criminal records and allowed them to harass and bully the white employees. Id. at. 5.
On April 27, 2017, Whitney Berry (“Berry”), a black employee, assaulted Kevin Thomas
(“Thomas”), a white temporary supervisor in the workplace. Id. at p. 6. Jackson alleges that the
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black supervisor “saw nothing wrong with reinstating the convicted employee to her position.”
Berry was returned to work on November 15, 2017. Rec. Doc. 37-7.
Jackson alleges that the white employees were thereafter forced to work in an environment
of chaos, lawlessness, fear, and discrimination. Jackson alleges that the black managers permitted
the black employees to engage in behavior that a white employee would be disciplined for such
as: stealing mail, failing to deliver certified mail, failing to report leave time or retroactive use of
such time, verbal harassment, stalking, possession of illegal drugs, lying about workplace incidents
While Jackson acknowledges that Tunnell was at a seminar and not at the CPO on the date
and time of the assault however, she faults him for Berry’s job reinstatement. Id. at p. 8. Jackson
further alleges that after the assault, Trepagnier brought every employee in her office except for
Thomas, the white temporary supervisor, to apologize for appointing Thomas as a 204B
supervisor. Id. at. 7.
Jackson also alleges that she became afraid and started shaking on November 15, 2017
after Tunnell announced that Berry would return to work the next day. Id. at p. 8. However, she
alleges that all of the black employees began cheering. She complains that after this event the
campaign of harassment, suppression of her rights, and reprisal began because she not only
witnessed the assault but testified about what she saw. Jackson alleged that Tunnel and Trepagnier
violated the FMLA by failing to approve her leave time request with the intent to discriminate or
harass as a means for reprisals for Jackson’s reaction to Berry’s return. Id.
Jackson also alleges a first amendment violation for the alleged attempt to deny her the
right to testify at the trial of Berry on behalf of the prosecution. Jackson alleges that Trepagnier
knew about Tunnell’s actions and acquiesced in them all in violation of La. Const. AR. 1 §7.
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Jackson also generally alleges violations of LSA-Const. Art. 1, §§3, 12, 22 and 25 by violating her
due process, privacy, freedom from intrusion, pursuit of happiness, and her recognized vested
property interests in her job and benefits as a USPS employee with over twenty years’ experience.
Finally, Jackson alleges that Tunnell and Trepagnier, by allowing the assault incident to
occur, intentionally inflected severe emotional distress. She alleges that these managers made her
and her white co-employees working conditions so intolerable that a reasonable employee would
feel “compelled to submit to adverse actions.” Jackson also alternatively added a claim of
discrimination based upon sex if the complained of actions were not based upon race. See Rec.
Doc. 11, p. 11. Jackson also modified her demand from $1 million to $300,00 or more plus
C. Administrative Complaint.
The EEO complaint filed by Jackson on November 19, 2018 alleges that she was
discriminated against because she is a white 45-year-old female. Rec. Doc. 37-2. She alleges that
she was retaliated against on October 19, 2017. Id. She further alleges that she was discriminated
against on September 15, 2017, October 5, 2017, October 6, 2017, and November 22, 2017 when
management forced her to work overtime. Id. Jackson alleges that she was forced to work overtime
even though she was not on the Overtime Desired List (“ODL”) and Tunnell allowed City Carrier
Assistants (“CCA”) who are assistants that help letter carriers to eliminate overtime off, to leave
early rather than assist her. Id. Additionally, Jackson complained that management denied her eight
hours of administrative leave on September 15, 2017 while changing the schedule to let a CCA
have a no-show day.
She alleged that when she was subpoenaed to testify at the trial of the CPO employee who
assaulted a CPO supervisor, management interfered and attempted to stop her from testifying.
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Furthermore, Jackson alleges that when management learned that she has an EEO complaint,
Tunnell stated on the work room floor that he was not going down easy. She also alleged that after
the statement management went in the system and removed her sick leave. Jackson also sought the
removal of Gordon Tunnell from the post office and an award of $300,000.00 in this complaint.
On January 19, 2018 the Postal Service accepted five of the seven complaints raised by
Jackson. Rec. Doc. 37-3. Among the accepted complaints were the September 15, 2017 denial of
annual leave, October 6, 2017 requirement to work overtime, and the October 6-7, 2017 coercion
to cancel her scheduled route inspection. Id. The Office also accepted the complaint that on
November 20-25, 2017 Jackson’s sick leave request was denied and the complaint that on an
unspecified date that the supervisor was not going down easy with an EEO complaint. Id.
Plaintiff did not amend her EEO Administrative Claim. On May 28, 2019, Administrative
Judge Claudine James issued an Order and Decision in which she dismissed Plaintiff’s
Administrative Complaint. On May 30, 2019, the USPS issued a Notice of Final Action, which
implemented the Administrative Judge’s dismissal.
D. The Subject Motion
In the subject motion, the Defendant advances the dismissal of several of Jackson’s claims.
First, the Defendant argues that Jackson cannot establish the prima facie elements of her hostile
work environment claim or her disparate treatment claim. Nor can she establish that the alleged
harassment was race-based. Second, the Defendant contends that the alleged harassment was not
severe or pervasive enough to create a hostile work environment.
The Defendant further contends that it believes that the thrust of Plaintiff’s hostile work
environment argument will be that two of her co-workers, Shantrell Berfect (“Berfect”) and Eboni
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Lee (“Lee”), created a hostile work environment in 2018 and 2019.1 However, according to the
Defendant the vast majority of incidents that Plaintiff now complains about did not involve her at
all, and she was merely a bystander in others. Moreover, none of the incidents, individually or
combined, are sufficient to create a hostile work environment; nor were included in Jackson’s
administrative complaint. The Defendant contends that it was not able to locate cases in which the
continuing violation doctrine for allegedly hostile acts that occurred after the filing period for the
Alternatively, Defendant contends that even if Jackson is able to set the prima facie
elements of harassment based upon race, the claim is subject to dismissal because of a combination
of legitimate business decisions and inadvertent mistakes made by a supervisor who was new to
the job. The Defendant therefore suggests that both of the basis would constitute legitimate,
nondiscriminatory reasons that overcome any inference of race-based harassment.
Jackson however contends that while race based discrimination is difficult to prove, it may
exist where race guided Tunnell and Trepganier’s decisions and conduct towards Jackson. Rec.
Doc. 50. Jackson further contends that she is not required to exhaust her administrative remedies
for acts occurring after her administrative claim because these acts may be considered in evaluating
her hostile environment claim. Jackson also contends that issues of material fact exist regarding
whether Tunnell and Trepagnier were guided by race in their acts and omissions that affected
Jackson and whether their proffered non-discriminatory reasons are in fact pretext.
The government concedes that Berfect and Lee were involved in multiple loud arguments with co-workers and
supervisors in 2018 and 2019 and that Plaintiff witnessed some of these and learned of others by word of mouth.
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Jackson contends that her claims meet all prima facie elements of discrimination, hostile
work environment. Rec. Doc.50. Jackson further contends that the Postmasters proffered reasons
are pretext for racial-based discrimination and that the harassment she complains of affected a
term, condition, or privilege of her employment. Id.
Standard of Review
Summary judgment is appropriate when the evidence before a court shows “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). A fact is “material” if proof of its existence or nonexistence would
affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that
a reasonable fact finder could render a verdict for the nonmoving party. Id.
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). “The moving party may
meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that
the record contains no support for the non-moving party's claim.” Stahl v. Novartis Pharm. Corp.,
283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is unable to identify anything in
the record to support its claim, summary judgment is appropriate. Id. “The court need consider
only the cited materials, but it may consider other materials in the record.” FED. R. CIV.
P. 56(c)(3). However, Rule 56 does not require a court to “sift through the record in search of
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evidence to support a party's opposition to summary judgment.” Willis v. Cleco Corp., 749 F.3d
314, 317 (5th Cir. 2014) (quoted source omitted).
In evaluating a motion for summary judgment, courts “may not make credibility
determinations or weigh the evidence” and “must resolve all ambiguities and draw all permissible
inferences in favor of the non-moving party.” Total E & P USA Inc. v. Kerr–McGee Oil and Gas
Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted). While courts will “resolve factual
controversies in favor of the nonmoving party,” an actual controversy exists only “when both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air. Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). To rebut a properly supported motion for summary judgment, the
opposing party must show, with “significant probative evidence,” that a genuine issue of material
fact exists. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (emphasis added).
“ ‘If the evidence is merely colorable, or is not significantly probative,’ summary judgment is
appropriate.” Cutting Underwater Tech. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517
(5th Cir. 2012) (quoting Anderson, 477 U.S. at 248).
Relatedly, there can be no genuine dispute as to a material fact when a party fails “to make
a showing sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322-23. This is
true “since a complete failure of proof concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.” Id. at 323.
When a movant bears the burden of proof on an issue, it must establish “beyond
peradventure all of the essential elements of the claim ... to warrant judgment in [its] favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). In other words, the movant must
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affirmatively establish its right to prevail as a matter of law. Universal Sav. Ass'n v. McConnell,
14 F. 3d 52 (5th Cir. Dec. 29, 1993).
Failure to Exhaust-Hostile Work Environment Claims
The Defendant contends that during discovery, it became apparent that Jackson would
contend that two of her black co-workers, Berfect and Lee, created a hostile work environment at
the CPO. However, Plaintiff only mentioned Berfect in passing in her Amended Complaint and
did not mention Lee at all. R. Doc. 11 at ¶ 13. The Defendant contends that the same is true of
Plaintiff’s Administrative Claim, where Plaintiff focused on Tunnell and Trepagnier, while Berfect
was only mentioned as a comparator (not as someone who harassed her or created a hostile work
environment).2 The Defendant therefore contends that because Jackson failed to raise any of the
issues related to Berfect and Lee during the pendency of her Administrative Claim, she failed to
exhaust her administrative remedies with regard to these events and the hostile environment claim
allegedly caused by Berfect and Lee should be dismissed.
Jackson contends that she was not required to exhaust her administrative remedies for
subsequent incidents. According to Jackson while the thrust of her allegations are against Tunnell,
she alleged “some” liability against Trepagnier because she should have stopped Tunnell’s
discriminatory and retaliatory actions and her failure to do so renders her complicit. Moreover,
according to Jackson, her claims against Trepagnier could reasonably be expected to grow out of
her EEO complaint because the Trepagnier was present during some of the incidents and had
See Exhibit 3 at pp. 17-18.
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supervisory authority over Tunnell. Jackson further contends that her hostile environment claim
could be reasonably expected to grow from the allegations in her EEO complaint because Jackson
alleged numerous incidents of race-based discrimination, harassment, and reprisal by CPO
management occurring over more than a year.
To exhaust, a plaintiff must file a timely charge with the EEOC and then receive a notice
of the right to sue. Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002).
Administrative exhaustion “is not a jurisdictional requirement,” Stroy v. Gibson ex rel. Dep't of
Veteran Affs., 896 F.3d 693, 698 (5th Cir. 2018), but neither is it merely “a procedural ‘gotcha’
issue,” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 272 (5th Cir. 2008). Instead, administrative
exhaustion “is a mainstay of proper enforcement of Title VII remedies,” and exists “to facilitate
the [EEOC's] investigation and conciliatory functions and to recognize its role as primary enforcer
of anti-discrimination laws.” See Id.; Filer v. Donley, 690 F.3d at 647 (5th Cir. 2012).
To satisfy exhaustion, a claim generally must arise out of the plaintiff's EEOC charge. See
Id. That requirement relates to a key purpose of an employment-discrimination charge, which is to
give the employer notice of the existence and general substance of the discrimination allegations.
See Manning v. Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir. 2003). However, a claim need
not always arise from the EEOC charge form for exhaustion to occur, in some circumstances, other
documents can serve as a charge. See Id. at 879. In assessing whether a filing is a charge, the key
question is whether “the filing, taken as a whole, should be construed as a request by the employee
for the agency to take whatever action is necessary to vindicate her rights.” Federal Express v.
Paul Holowecki, 552 U.S. 389, 398 (2008).
Ordinarily, an employee may not base a Title VII claim on an action that was not previously
asserted in a formal charge of discrimination to the EEOC, or that could not “reasonably be
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expected to grow out of the charge of discrimination.” Pacheco v. Mineta, 448 F.3d 783, 789 (5th
Cir.2006) (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970)). The
purpose of this exhaustion doctrine is to facilitate the administrative agency’s investigation and
conciliatory functions and to recognize its role as primary enforcer of anti-discrimination laws. In
hostile work environment claims, however, if one act alleged to have created the hostile
environment is timely exhausted, “a court may consider ‘the entire scope of the hostile work
environment claim.’ ” Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 328 (5th Cir.2009) (quoting
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002)).
The continuing-violation doctrine relieves a plaintiff of establishing that all the
complained-of conduct occurred within the actionable period if the plaintiff can show a series of
related acts, one or more of which falls within the limitations period. Celestine v. Petroleos de
Venezuella SA, 266 F.3d 343, 351 (5th Cir. 2001) (citing Messer v. Meno, 130 F.3d 130, 135 (5th
Cir. 1997)). To apply this “continuing violation doctrine ... the plaintiff must demonstrate that the
separate acts are related.” Id; Donley, 690 F.3d 647. Nevertheless, “[t]he United States Supreme
Court has made clear that the continuing[-]violation doctrine does not apply to discrimination
and/or retaliation claims.” Skaggs v. Van Alstyne Indep. Sch. Dist., No. 4:16-CV-00227-CAN,
2017 WL 77825, at *6 (E.D. Tex. Jan. 9, 2017) (citing Morgan, 536 U.S. 110-21); see Heath v.
Bd. of Sup'rs for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 737 (5th Cir. 2017), as revised
(Mar. 13, 2017) (“Claims alleging discrete acts are not subject to the continuing violation doctrine;
hostile workplace claims are.”); See also Cicalese v. Univ. of Texas Medical Branch, 456 F. Supp.
3d 859 (S.D. Tx., Galveston Division, Feb. 5, 2020)(to the extent that the plaintiffs’ hostile-workenvironment claims rely upon acts preceding the cutoff date support their discrimination claims,
the continuing-violation doctrine does not apply.)
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“A hostile work environment exists ‘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.’” Stewart, 586 F.3d at 328
(quoting Morgan, 536 U.S. at 116). To determine whether a work environment is “hostile,” a court
considers “the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002)
(quoting Walker v. Thompson, 214 F.3d 615, 625 (5th Cir.2000)).
A hostile work environment claim involves repeated conduct. Thus, the "unlawful
employment practice" does not occur on any particular day, but rather occurs over a series of days,
months, or even years. Moreover, a single act of harassment, unlike discrete acts of discrimination,
may not be actionable standing alone as hostile environment claims are usually based on the
cumulative effect of individual acts. The Court has decided that, provided that an act contributing
to the claim occurs within the filing period, the conduct during the entire time period involved in
the creation of the hostile environment may be considered in determining liability. Therefore, as
long as one of a series of acts that are part of the same unlawful employment practice falls within
the statutory time period for filing a charge, the charge will not be time-barred.
The Fifth Circuit, in Stewart v. Miss. Transp. Comm'n, held that a male supervisor's actions
toward the plaintiff female employee during the two periods she was assigned to work for him did
not constitute a continuing violation for purposes of the plaintiff's hostile work environment claim
under Title VII. Stewart, 586 F.3d 321. The Court held that even though the later acts were
sufficiently related to the earlier ones to constitute a single “practice” for limitations purposes, the
two periods of alleged harassment were severed by the employer's intervening act of reassigning
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the plaintiff to different supervisor. Id. The Fifth Circuit noted that the proper focus of the
“continuing violation” inquiry under Title VII is the employer's remedial action in addressing the
employee's complaints in the first instance. Id. Therefore, a subsequent act can be relevant to this
inquiry only when it casts doubt on the reasonableness of the remedial action in the context of the
employer's policies and practices.
Additionally, in National R.R. Passenger Corp. v. Morgan, the Supreme Court considered
a Title VII claim for workplace harassment. 536 U.S. at 106. The plaintiff in that case alleged a
host of discriminatory and retaliatory acts were committed against him, some occurring within the
limitations period and some outside it. Id. The Court found that for discrete and easy to identify
acts (such as a termination) the time bar applied if the acts were committed outside the limitations
period. Hostile work environment claims on the other hand are based on the “cumulative effect of
individual acts.” Id. at 115. Therefore, “[p]rovided that an act contributing to the claim occurs
within the filing period, the entire time period of the hostile environment may be considered by a
court for the purposes of determining liability.” Id. at 117; Heath 850 F.3d at 740.
In this case, the gist of Jackson’s claim as asserted in her EEO Complaint is that her
supervisors, both of whom were black, denied her leave request on two (2) occasions, forced her
to work overtime, and coerced her to cancel her scheduled route inspection. In the Amended
Complaint, Jackson complains that her supervisors allowed her coworkers to create a hostile
environment by permitting them to loudly argue with coworkers and supervisors and by being
passive managers. Jackson alleges that she was present for some of the arguments but heard about
others. These latter complaints of Jackson did not result in an amendment to her EEO complaint.
Not included the EEO complaint, but addressed in the Amended Complaint, are Jackson
allegations that Tunnell in addition to the actions described above: (1) sought to interfere with
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“white employees” testifying at Berry’s criminal trial, (2) did not notify her when it was her time
to testify, (3) mentioned her name while discussing the route inspection, and (4) made threatening
statements about her but not to her regarding her EEO claim. In a further attempt to expand the
allegation, Jackson advances in the opposition to the subject motion that, in March 2018,
Trepagnier was present when Berfect, a black coworker, assaulted a white coworker Sandy Keller.
She also alleges that Trepagnier failed to stop Berfect showing a “favoritism towards blacks.”
Jackson also contends that Berfect and Lee generally verbally harassed, intimidated, and assaulted
Jackson and other white employees without consequence. From Jackson’s perspective each of
these acts are examples of an environment that was hostile to her because she is white.
In evaluating the evidence, the alleged hostile acts committed by Tunnell and Trepagnier
involved their job duties as supervisors such as leave decisions and managing employee disputes.
According to the charge, the dates on which Jackson’s alleged discrimination based on race, color,
sex, age, and retaliation were September 15, 2017, October 5, 2017, October 6, 2017, and
November 22, 2017. See Rec. Doc. 37-2, p. 1. Notably the reason for Jackson’s requested leave in
November 2017 was because she witnessed a black co-worker attack a white supervisor and heard
threats from the coworkers’ boyfriend regarding “f**king up witnesses.” These events were
classified by Jackson as creating a hostile work environment. She also alleged in her complaint
that she was denied sick leave because of her race and that Tunnell harassed “older white American
females.” See Rec. Doc. 37-4, p. 13. In the EEO complaint Jackson testified that she reported
harassment and hostile work environment through to the Office of Inspector General on September
28, 2017 but received no response. Id. at p. 15. It is unclear which if any event sparked Jackson’s
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As part of Jackson’s hostile environment claim, she contends that after the Berry-Thomas
fight, Berry was allowed to return to the workplace. See Rec. Doc. 37-7. This incident occurred on
April 27, 2017 and served as the basis for Jackson’s leave request of November 15, 2017, which
is also the date it was announced that Berry would return to the office. See Rec. Doc. 50-6, Thomas
Affidavit; See also Rec. Doc. 50-4 at ¶7, Jackson Affidavit. Jackson believed that Berry’s return
was because Tunnell or Trepagnier allowed it. Id. This portion of the hostile claim relates back to
the originally filed charge as such, the continuing-violation doctor applies. Therefore, the claim
arising from Berry-Thomas incident is exhausted and the summary judgment as to this portion of
the claim is Denied.
Jackson also seeks to include other instances of coworker disputes as proof of a hostile
environment claim. On incident which occurred in March 2018, involved Berfect and Keller, again
a black and white employee, but not Jackson. See Rec. Doc. 1 at ¶13. According to Keller, Berfect
yelled at her, lunged toward her in front of management, and threatened her. See Rec. Doc. 50-3
at ¶29, Keller Affidavit. According to Keller, Berfect threatened her by saying “I’ll whip your a**
before Denise [Trepagnier] can stop me.” Id. Jackson seemingly wants to use the Keller-Berfect
threat as evidence that there was a hostile environment towards Jackson.
In considering this incident, the only related fact is that the incident was between a black
employee and a white employee and Jackson’s perception that the black employee was treated
more favorably. It did not involve her or Tunnell with whom she had filed the EEO complaint
against for denial of her leave requests. Moreover, even if Trepagnier was somehow present or
involved, the incident did not have any relation to employee leave time. The Berfect-Keller
incident of March 2018 is not a continuing violation because it is not related to Jacksons EEOC
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charge, nor does it arise out of the charge. This incident of alleged hostile environment is not
exhausted and dismissed.
Additionally, Jackson seeks to complain generally about Berfect and Lee’s conduct in the
workplace. However, her affidavit is devoid of any clarity as to time, place, event, or even which
if any instances involved her. The affidavit also does not indicate whether Tunnell, Trepagnier, or
both were present and failed to discipline these or other employees involved in any incident. Rec.
Doc. 50-2. Again, neither Berfect nor Lee’s conduct claims are related to Jacksons charge of race,
color, sex, age, retaliation, or the only lodged hostile environment referenced in the EEO charge.
Additionally, Jackson’s affidavit does not state or describe any specific instances that she
was verbally assaulted by Berfect or Lee. The USPS however acknowledges that Berfect and Lee
were involved in multiple loud arguments with co-workers and supervisors in 2018 and 2019. See
Rec. Doc. 50-2. It is further undisputed that Jackson sought FMLA leave due to the stress of
witnessing an attack by a black co-worker on a white supervisor and testifying in the criminal
proceeding, which was a part of her EEOC charge in November 2017. See Rec. Doc. 37-4.
The Court finds that the continuing violation doctrine does not apply to the March 2018
Keller-Berfect encounter or the nondescript incidents involving Berfect and Lee because there is
no evidence that these incidents were directed at or involved Jackson. For these reasons, Plaintiff
failed to exhaust her administrative remedies regarding these incidents and her hostile work
environment claim is not exhausted.
B. Title VII Claims
The USPS contends that, as a white employee, Jackson is in a protected class, but she
cannot establish the prima facie elements of her disparate treatment claim; namely that she
suffered an adverse employment action and racially motivated intent. The USPS further contends
Case 2:19-cv-12403-KWR Document 66 Filed 11/17/21 Page 19 of 30
that it had a legitimate, non-discriminatory reason for the employment decisions. Further the
Defendant contends that Jackson’s disparate treatment complaints are leave related; requiring her
to work overtime a few days and having her name discussed prior to a route inspection are not
adverse employment actions. Additionally, there is no evidence that her supervisor’s decisions
were racially based. Therefore, the Defendant contends that Jackson cannot establish the third
element of her disparate treatment claim.
Jackson contends that she meets the first two elements of disparate impact discrimination
because she is a white female and she was qualified for the position both of which are undisputed
by the Defendant. Jackson further contends that she was subjected to adverse employment actions
when Tunnell interfered with her FMLA leave by contacting her while on leave to return to work
and reclassifying her as Absent Without Leave (“AWOL”) on November 22-25, 2017. She
additionally contends that Tunnell purposefully failed to act on her PS form 3996 in which she
requested CCA assistance which resulted in her working long hours to complete her route.
Title VII creates a federal cause of action for two largely separate theories of
discrimination, disparate treatment and disparate impact. International Brotherhood of Teamsters
v. United States, 431 U.S. 324 (1977). Disparate-treatment discrimination addresses employment
actions that treat an employee worse than others based on the employee's race, color, religion, sex,
or national origin. In such disparate-treatment cases, proof and finding of discriminatory motive is
required. Id. Disparate-impact discrimination, on the other hand, addresses employment practices
or policies that are facially neutral in their treatment of these protected groups, but, in fact, have a
disproportionately adverse effect on such a protected group. Hebert v. Monsanto, 682 F.2d 1111,
1116 (5th Cir.1982).
To establish a prima facie disparate treatment claim a plaintiff must establish:
Case 2:19-cv-12403-KWR Document 66 Filed 11/17/21 Page 20 of 30
(1) he is a member of a protected class, (2) he was qualified for the
position at issue, (3) he was the subject of an adverse employment
action, and (4) he was treated less favorably because of his
membership in that protected class than were other similarly situated
employees who were not members of the protected class, under
nearly identical circumstances. Lee v. Kansas City So. Ry. Co., 574
F.3d 253, 259 (5th Cir. 2009).
“Adverse employment actions include only ultimate employment decisions such as hiring,
granting leave, discharging, promoting, or compensation. An employment action that does not
affect job duties, compensation, or benefits is not an adverse employment action.” Welsh v. Fort
Bend Independent School Dist., 941 F.3d 818, 824 (5th Cir. 2019) (emphasis added).
Disparate Treatment Allegations
a. Jacksons Trial Testimony and Berry’s Office Return
The USPS contends that Jackson’s disparate treatment complaint about Berry’s return to
work at the CPO, as well as, her complaints regarding testifying at Berry’s trial should not be
considered because they are not adverse employment actions. Additionally, USPS contends that
the legitimate business reasons supported Berry’s return to the workplace.
Jackson contends that the supervisors at CPO failed to do anything regarding Berry’s return
to work showing a pattern of discriminatory acts by Tunnell and Trepagnier. She further contends
that Tunnell intentionally interfered with her trial testimony. She contends that their action in both
respects were directed at her and other white employees and that these acts are only being offered
to present a pattern of raced-based discrimination by her supervisors.
The Fifth Circuit has noted that the pattern and practice method of proof is almost
exclusively used in class actions. Celestine, 266 F.3d at 355-56. Celestine involved a series of
individual claims by African American employees after the court denied class certification. Id. The
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court in Celestine noted that the Supreme Court has not applied the Teamsters method of proof in
a private, non-class suit and described the distinction between individual discrimination claims
and class actions, as follows:
The crucial difference between an individual's claim of discrimination and a class action
alleging a general pattern or practice of discrimination is manifest. The inquiry regarding
an individual's claim is the reason for a particular employment decision, while at the
liability stage of a pattern-or-practice trial the focus often will not be on individual hiring
decisions, but on a pattern of discriminatory decision making.
The Celestine court noted that other courts had reached the conclusion that the disparate
impact or the pattern and practice method of proof may not be used in private non-class suits.
Id. at 355-56 (citations omitted). The court concluded:
Given the nature and purpose of the pattern and practice method of proof, this Court's
precedents, and the precedents of other circuits, the district court did not err in refusing to
apply the Teamsters method of proof as an independent method of proof to the appellants'
individual claims in lieu of the McDonnell Douglas method at the summary judgment
stage. Id. at 356.
This is not a ‘pattern and practice suit’ by Jackson, nor is this a private class action. In the
case at bar, Plaintiff is proceeding as an individual under Title VII and must prove the elements of
a discriminatory discharge/disparate treatment claim as set forth in McDonnell Douglas.
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Therefore, to the extent that Jackson
seeks to use these allegations as proof of pattern or practice claim, such a claim is not available to
her and her attempted to use of these allegations for this purpose is impermissible. Therefore, to
the degree Jackson offers these facts to support her individual claim, they do not constitute an
b. Route Requiring Overtime
Jackson contends that Tunnell and Trepanier discriminated on the basis of race by giving
her a heavier workload than other employees and by refusing to provide CCAs to help with her
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workload. She further alleges that she was required to work overtime due to longer route.
Additionally, when it was time for a review of the routes Tunnell encouraged her coworkers to
contact her to “harass” her into not requesting the review. Consequently, she was forced to
acquiesce in the group decision to not requesting a route evaluation which meant that she would
be forced to work longer than 8 eight hours a day.
Jackson, however, cannot prove a prima facie case of discrimination, because she cannot
satisfy the last two requirements of McDonnell-Douglas. McDonnell-Douglas Corp. v. Green, 411
U.S. 792 (1973). Specifically, she has not established that she suffered an adverse employment
action and that others similarly situated were treated more favorably.
First, Jackson’s belief that she was routinely required to work longer hours than other
employees does not qualify as an adverse employment action. Adverse employment actions
include only ultimate employment actions, such as hiring, firing, promoting, compensating, or
granting leave. See McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007). Imposing a
higher workload than that given to other employees is not an adverse employment action. See Ellis
v. Compass Group USA. Inc. 426 Fed. Appx. 292 (5th Cir. 2011).
According to Jackson, she was treated differently from Reynell Haggins (“Haggins”)
presumably a black employee and comparator who also had a longer route. Haggins testified that
she verbally complained about the route and it was after the route was evaluated pursuant to an
annual route inspection that her route was changed. Rec. Doc. 50-4, Haggins Deposition, p. 32, ln.
14-17. Haggins also testified that both she and Jackson had requested a special route inspection
before the annual route inspection in October 2017. Id. Haggins also testified that Tunnel asked
her to ask Jackson not to have the route inspection. Id. at p. 35, ln. 2-4.
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Jackson on the other hand contends that she submitted a PS 3996 form, which permits a
mail carrier to request overtime or auxiliary assistance, but Tunnell did not respond to her requests.
She further claims in her memorandum, that she had to routinely work overtime to finish her route
even though she was not on the CPO overtime desired list.3 Rec. Doc. 50. She also seemingly did
not receive CCA help.
There is no evidence confirming the submission of a PS 3996 forms although Tunnell
confirmed that it is a pretty routine submission. Rec. Doc 50-5, Tunnell deposition, p. 125. Nor
does the evidence confirm that Jackson verbally complained to her supervisor like Haggins for a
route adjustment. See Rec. doc. 50-4, Haggins Deposition, p. 32. ln 7-11;17.
Assuming that Jackson continuously filed a PS form 3996, her requests for auxiliary
assistance and the excess hours she was working would have resulted in a route inspection. See
Rec. Doc. 50-5, Tunnell deposition, p. 131, 9-13. Tunnell confirmed in his deposition that he would
routinely challenge the request for assistance by curtailing mail or telling mail carriers to start their
delivery earlier. However, he had no independent recollection regarding Jackson’s October 2017
request for help. Id. at 126. Even accepting her representation as true, if Jackson was required to
work a longer route being overworked is not an adverse employment action. This claim fails and
summary judgment is GRANTED as to this claim.
c. Denial of Leave Requests.
USPS contends that Tunnell’s denial of a single annual leave request on September 15,
2017 is a legitimate non-discretionary business decision, not discrimination. Rec.Doc. 37-1. The
USPS contends that Tunnell denied Jackson’s leave request because the CPO could not grant leave
Note, Jackson cites to her affidavit and the Affidavit of Sandy Keller in support of this statement, however neither
affidavit speaks to this issue.
Case 2:19-cv-12403-KWR Document 66 Filed 11/17/21 Page 24 of 30
to more than 14% of employees on any single day and granting Jackson’s leave request would
have pushed the CPO over that number. USPS points out that Tunnell worked with Plaintiff to
make sure she was still able to attend the event at her child’s school and did not make this decision
on account of Jackson’s race.
USPS further contends that Jackson’s claims that Tunnell mishandled her sick and FMLA
leave requests in November 2017 and harassed her while she was on FMLA leave by sending her
a threatening letter and calling her should be dismissed. Rec. Doc. 37-1. USPS offers that Tunnell
handled her leave due to error and inexperience in the position but denies that race was a reason.
Jackson contends that Tunnell’s explanation is pretext for racial discrimination. She points
to the explanation Tunnell gave for denying her request which was that she placed the request the
day before the event. Rec. doc. 50. Jackson also contends that he told her that he had already given
the day off to Roosevelt Thomas, a black letter carrier, as a reason why he could not grant her
To satisfy her burden of proof and to defeat USPS’ motion for summary judgment, Jackson
must offer sufficient evidence that either: (1) Jackson's articulated reasons are a pretext for
discrimination, or (2) Jackson 's stated reasons, while true, are only some reasons for its conduct,
and discrimination is another motivating factor. See Autry v. Fort Bend Ind. Sch. Dist., 704 F.3d
344, 347 (5th Cir. 2013).
To establish pretext, “[Jackson] must substantiate h[er] claim through evidence
demonstrating that discrimination lay at the heart of [Tunnell’s] decision.” Price v. Fed. Express
Corp., 283 F.3d 715, 720 (5th Cir. 2002). Jackson “must rebut each non[-]discriminatory reason
articulated by [Tunnell].” Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). Jackson must
rebut each reason by “produc[ing] substantial evidence of pretext.” Wallace v. Seton Family of
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Hospitals, 777 Fed. Appx. 83, 89 (5th Cir. 2019). “Evidence is substantial if it is of such quality
and weight that reasonable and fair-minded men [or women] in the exercise of impartial judgment
might reach different conclusions.” Id. Jackson can establish pretext by: (1) showing disparate
treatment or (2) showing that Tunnell’s proffered explanation is false or unworthy of credence.
See Id.; See also Vaughn v. Woodforest Bank, 665 F.3d 632, 637-40 (5th Cir. 2011).
Tunnell suggests that Jackson was denied leave because he could not grant leave to more
than 14% of employees in a single day and that allowing her off would have exceed this number.
See Rec. Doc. 37-7 and Rec. Doc. 50-5, Tunnell deposition, p. 122. Jackson also attested that
Roosevelt Thomas, a black letter carrier had already been given September 15, 2021 off. Rec. Doc.
50-5, p. 107 and 116. However, the evidence shows that Jackson submitted her leave request four
days prior to her son’s school event contrary to Tunnell’s testimony. Id. Rec. Doc. 50-5, p.110.
It is unclear though when Thomas submitted his request, or when Tunnell hit the 14% mark
that resulted in his denial of Jackson’s request. As for the November 2017 denial, Tunnell cites his
inexperience and error as reasoning for his decision, but the issue of whether race was a factor
remains a question of material fact.
Regarding the alleged harassment during her FMLA leave, the evidence indicates that
Haggins requested and received FMLA leave but did not receive a letter inquiry from her
supervisor. Haggins confirmed also that she did not call the 1-800 number. Rec. Doc. 50-4, p. 26.
Tunnell’s explanation for sending the absence inquiry letter to Jackson was purportedly to advise
her that Berry had been transferred so that she and other coworkers would return to work. See Rec.
Doc. 50-5, Tunnell deposition, p. 172-173. However, Haggins stated in her affidavit that while
she was on FMLA leave Tunnell did not call her nor send her a letter requesting her return to work.
Rec. Doc. 56-4, ¶ 11.
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To request leave, Haggins contacted her supervisor, Tunnell, filled out the paperwork and
received her FMLA case number which notified Tunnel of her surgery. Rec. Doc. 50-4, Haggins
deposition, p. 25-26. In contrast, Jackson called the Interactive Voice Recorder System to request
40 hours of FMLA sick leave because of stress and anxiety on the job. She received a FMLA
confirmation number and later submitted supporting documentation for her leave requests.
However, Tunnell went into the time keeping system and changed her FMLA sick leave to AWOL.
Doc. 50-5, Tunnell deposition, p. 176, ln 16 and p.177, ln.5. Tunnell now advances several reasons
from mistake, to lack of experience, to correcting the error at some point.
Trepagnier, the Postmaster, testified that sending an absence inquiry letter three days after
the absence was unusual. She additional testified that reclassifying time from FMLA to AWOL
was not the product of inadvertence. However, whether his decision was based on race is a material
question of fact.
In evaluating the evidence, the Court finds that Jackson has presented evidence of
disparate treatment and there is a material question of fact regarding whether Tunnell’s proffered
justification is pretextual. Therefore, the request to dismiss Jacksons claims arising from the
September 2017, November 2017 and FMLA leave requests is DENIED.
Jackson’s Hostile Work Environment Claims
USPS concedes that it is not contesting that Jackson has sufficient facts to establish that
she belonged to a protected group and was subjected to unwelcome harassment. However, the
USPS contends that Jackson cannot show that the harassment affected a term, condition, or
privilege of employment under the fourth element of the prima facie case.
The USPS contends that none of the conduct that Jackson complained of in the Original
Complaint, Amended Complaint, or EEO charge, even if taken together, is “severe or pervasive
Case 2:19-cv-12403-KWR Document 66 Filed 11/17/21 Page 27 of 30
enough to satisfy the object reasonable person standard. Rec. Doc. 37-1. USPS contends that none
of the conduct was physically threatening or humiliating, nor did the managers use offensive
language or engage in race-based name calling. Id. at p.18. Finally, USPS contends that Jackson
cannot establish that the alleged harassment was because of race.
In contrast, Jackson contends that the harassment by the CPO management was sufficiently
severe and pervasive as to affect a term, condition or privilege of Jackson’s employment and
created a hostile work environment. Rec. Doc. 50, p. 23. Jackson contends that Tunnell and
Trepagnier fostered a hostile work environment by allowing three black employees to verbally
abuse and in one instance attack a white supervisor. Id.
Jackson contends that evidence of the hostile nature of the environment is the fact that three
different white employees took leave to obtain medical treatment for stress, anxiety, and
depression. Id. Jackson further contends that there were a constellation of racially motivated acts
and inactions that in their totality altered terms and conditions of Jackson’s employment. Id.
Jackson further contends that Tunnel and Trepagnier, primarily by omission, but in some cases
with deliberate indifference, made decisions that were uniformly violative of the interests of the
Plaintiff. Rec. Doc. 60, p. 3.
Title VII also makes it unlawful for employers to require “people to work in a
discriminatorily hostile or abusive environment.” Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d
320, 325 (5th Cir. 2019) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). A hostile
work environment claim “is composed of a series of separate acts that collectively constitute one
‘unlawful employment practice,’” Morgan, 536 U.S. at 117 .
To survive summary judgment on a hostile work environment claim based on race or sex
discrimination, a plaintiff must show that: (1) she is a member of a protected class; (2) she suffered
Case 2:19-cv-12403-KWR Document 66 Filed 11/17/21 Page 28 of 30
unwelcomed harassment; (3) the harassment was based on her membership in a protected class;
(4) the harassment “affected a term, condition, or privilege of employment”; and (5) “the employer
knew or should have known” about the harassment and “failed to take prompt remedial action.”
Ramsey, 286 F.3d at 268. “Where the alleged harasser is a supervisor, the employee need only
satisfy the first four elements discussed above in making her prima facie case of hostile work
environment.” E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 453.
“To affect a term, condition, or privilege of employment, the harassment must be
sufficiently severe or pervasive to alter the conditions of the victim's employment and create an
abusive working environment.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 479 (5th Cir.
2008). The alleged conduct must be objectively and subjectively hostile or abusive. Harris, 510
U.S. at 21–22, 114 S. Ct. 367. “The critical issue in determining whether workplace activities
constitute harassment based on [race] is whether members of one [race] are exposed to
disadvantageous terms or conditions of employment to which members of the other [race] are not
exposed.” Reine v. Honeywell Intern. Inc., 362 F. Appx 395, 397 (5th Cir. 2010). If the harassing
employee is the victim's co-worker, the employer is liable only if it was negligent in controlling
The totality of the employment circumstances determines whether an environment is
objectively hostile. Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (Nov. 1993). Although no
single factor is determinative, pertinent considerations are: (1) “the frequency of the discriminatory
conduct”; (2) “its severity”; (3) “whether it is physically threatening or humiliating, or a mere
offensive utterance”; and (4) “whether it unreasonably interferes with an employee's work
performance.” Id. at 23
Case 2:19-cv-12403-KWR Document 66 Filed 11/17/21 Page 29 of 30
One of the complained of acts that Plaintiff alleges contributed to the hostile work
environment was an altercation between Berry and Thomas on April 27, 2017. 4 See Rec. Doc. 11.
Thomas was the temporary supervisors as Tunnell nor Trepagnier were not present at the office
on the day of the Berry-Thomas altercation. See Rec. Doc. 37-7, Declaration Tunnell. Berry’s
boyfriend came to the workplace and threatened coworkers who would testify about what they
saw. Rec. Doc. 50-3, Keller Affidavit; Rec. Doc. 50-7, Philpott Affidavit. Jackson, was one of
those employees who ultimately testified that resulted in Berry’s conviction.
On November 15, 2017, Berry was allowed to return to the workplace. In light of her return,
Jackson states she initiated FMLA leave due to fear and anxiety. Rec. Doc. 50-5, Tunnell
Deposition, p. 67, ln. 5-10. Jackson thereafter was on leave from November 22, 2017-February 22,
2018. Rec. Doc. 50-2, ¶ 7.
There is no evidence that Jackson suffered harassment that affected a term or condition or
privilege of employment because on February 22, 2018 Jackson returned to work. See Ramsey,
286 F.3d at 264. The evidence also shows that Berry was transferred to another location and no
longer worked at the CPO when Jackson returned to work. Rec. 37-7. The summary judgment on
Jackson’s hostile work environment claim is GRANTED.
IT IS ORDERED ADJUDGED AND DECREED that Motion for Summary Judgment
filed by Louis DeJoy (Rec. Doc. 37) is GRANTED IN PART AND DENIED IN PART.
Berry is black and Thomas is white but there is no evidence presented that the altercation was due to race.
Case 2:19-cv-12403-KWR Document 66 Filed 11/17/21 Page 30 of 30
IT IS FURTHERED ORDERED that Defendants motion regarding Plaintiff’s disparate
treatment claim for being required to work overtime is GRANTED.
IT IS FURTHERED ORDERED that Defendants motion regarding Plaintiff’s disparate
treatment claim for being denied leave time is DENIED.
IT IS FURTHERED ORDERED that Defendants motion regarding Plaintiff’s hostile
work environment claim is GRANTED.
New Orleans, Louisiana, this 17th day of November 2021.
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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