Corley v. State Of Louisiana Through Division Of Administration, Office Of Risk Management

Filing 208

RULING granting 188 Motion for Summary Judgment. Summary judgment is granted to the defendants as to all other employment actions which the plaintiff alleged were retaliatory in violation of Title VII and § 1981.. Signed by Magistrate Judge Stephen C. Riedlinger on 9/12/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

IDELLA CORLEY
VERSUS

CIVIL ACTION

STATE OF LOUISIANA, THROUGH
DIVISION OF ADMINISTRATION,
OFFICE OF RISK MANAGEMENT, ET
AL.

NUMBER 06-882-SCR

RULING ON MOTION FOR SUMMARY JUDGMENT
Before the court is a Motion for Summary Judgment filed by
defendants

the

State

of

Louisiana

through

the

Division

of

Administration, Office of Risk Management, Whitman J. “Whit” Kling,
Jr.,

the

former

Appointing

Authority

for

the

Division

of

Administration, Barbara Goodson, the former Appointing Authority
for Division of Administration, Anne Graham, the Division of
Administration Human Resources Director, Julian S. “Bud” Thompson,
Jr., the State Risk Director, and Patricia H. Reed, the State Risk
Assistant Director.

Record document number 188.

The motion is

opposed.1
Based on the applicable law, the competent summary judgment
evidence and the analysis which follows, the defendants have
established that there is no genuine dispute for trial as to the
plaintiff’s race discrimination claims, and her state law claims
1

Record document number 191-2.
Defendants filed a reply
memorandum. Record document number 196. Plaintiff also filed a
sur-reply memorandum. Record document number 201.

under LSA-R.S. 23:332, La.R.S. 23:967, La.R.S. 23:1361(B) and
Louisiana Civil Code Article 2315 for intentional infliction of
emotional distress.

However, there is a genuine dispute for trial

as to certain aspects of the plaintiff’s claim of retaliation under
federal law.
Background
The following summary is composed primarily of information
from the established facts contained in the pretrial order and the
defendants’ statement of undisputed facts.2

The summary generally

consists of the plaintiff’s employment history with the Division of
Administration (hereafter, “DOA”), Office of Risk Management from
her date of hire on August 12, 2002 until her termination effective
February 1, 2007.

The purpose of this summary is to provide

general background information.

It does not include all the

relevant and undisputed facts contained in the summary judgment
record.
Plaintiff's claims arise from her employment with the Office
of Risk Management (hereafter, “ORM”). The ORM is one of 25
sections within

the

DOA,

Louisiana state government.

which

is

the administrative

arm

of

The ORM is divided into seven units,

including the Administrative Support Unit. Plaintiff was initially
hired as the Executive Services Assistant in the Administrative
2

Record document number 205, Uniform Pretrial Order, pp. 710; record document number 188-1, Statement of Undisputed Facts.
2

Support Unit. Defendant Whitman J. “Whit” Kling, Jr. was the
appointing authority for the DOA the when plaintiff began her
employment with the ORM and he remained in that position until
approximately March 2005, when defendant Barbara Goodson became the
appointing authority.

Goodson was the appointing authority from

2005 until her retirement in July 2010.
Defendant Anne Graham was the Director of the DOA Office of
Human Resources during plaintiff's employment with the ORM. Graham
supervised Christina Cardona, who began her employment in July 2004
as a human resources analyst.
ORM

is

defendant

Director.

Julian

S.

The highest-ranking person at the
“Bud”

Thompson,

Jr.,

State

Risk

He was one of the plaintiff's immediate supervisors

during her employment with the ORM.

The second highest-ranking

person during the plaintiff's employment with ORM and also one of
her immediate supervisors, was defendant Patricia H. Reed, State
Risk Assistant Director.

Thompson and Reed were both hired into

their positions in early 2002.
In June 2002, Thompson (white male) and Reed (white female)
interviewed ten applicants for the Executive Services Assistant
position, six of whom were white.

They selected the plaintiff

(African American female) for the position. Plaintiff accepted the
position at the salary offered and began her employment with the
ORM on August 12, 2002.

Shortly after she began her employment

with the ORM, the plaintiff was asked by Thompson and Reed to

3

assist with performing the duties of another Administrative Support
Unit employee, Anne Gianelloni (white female), who was out of the
office at times due to her terminal illness.

Pat Glass, a

non-supervisory level employee in the Administrative Support Unit,
had been detailed with pay into Gianelloni's Administrative Manager
2

position

on

August

6,

2002,

which

was

plaintiff began her employment at the ORM.3

shortly

before

the

Glass had been filling

in for Gianelloni but needed assistance because she was also still
performing her own duties. Glass's detail to Gianelloni's position
ended on February 5, 2003.

On February 3, 2003, the plaintiff was

transferred into Gianelloni's Administrative Manager 2 position.
Although the transfer was a lateral one, it provided the plaintiff
with opportunities for advancement due to the classification of the
position.

In the Administrative Manager position the plaintiff

directly supervised three employees and several student workers.
Mary Ann Christopher (African American female), Pat Glass (white
female), and Lorena Swain (white female) were the three full-time
employees who reported to the plaintiff.
A little more than one month later, on the request and
recommendation of Reed and Thompson and with the approval of Kling,
the plaintiff was promoted to Administrative Manager 3 effective
March 17, 2003.

Reed, with Thompson’s approval, requested the

3

Being “detailed” into a position is a form of temporary
transfer.
4

upward reallocation of the plaintiff’s position from level 3 to 4,
but the request was initially denied.

Plaintiff appealed the

denial to Civil Service, which ultimately approved the promotion
with an effective date of April 22, 2004.

Plaintiff was promoted

to Administrative Manager 4, the position classification she held
at the time of her termination.
Plaintiff’s position description was revised in January 2006.
In January 2006, Reed, with Thompson's approval, submitted the
plaintiff's position description for an upgrade after a number of
additional duties had been added.

These additional duties evolved

from the Administrative Assistant position occupied by Gianelloni.4
The request for the upgrade was denied and the plaintiff appealed
this decision to Civil Service on February 17, 2006.

After a

review of the position description, job specifications and a desk
audit, Civil Service denied the appeal and affirmed the plaintiff’s
position as Administrative Manager 4.
In May 2006 the plaintiff applied and interviewed for the
position of Executive Staff Officer.

The job was awarded Vickie

Jones (African American female), the other applicant who was
interviewed. On May 10, 2006, plaintiff filed a grievance with DOA
Office of Human Resources relating to the filling of the Executive
Staff Officer vacancy in the ORM.
Reed rated plaintiff a 3.75 on her March 24, 2003 performance

4

Gianelloni died in May 2006.
5

appraisal, a rating which means “exceeds requirements.”

As a

result of this rating, the plaintiff was eligible for and received
a merit pay increase.

Reed, with Thompson’s approval, submitted a

request for optional pay for the plaintiff in December 2003, which
Kling approved.

Plaintiff received the maximum amount of optional

pay, 10% of her annual salary, for her performance of additional
duties related to Gianelloni’s desk in 2003.

Reed rated plaintiff

a 4.17 on her March 24, 2004 performance appraisal.

Plaintiff's

rating was “exceeds requirements.” As a result of this rating, the
plaintiff was again eligible for and received a merit pay increase.
Reed,

again

with

Thompson’s

approval,

submitted

another

request for optional pay for the plaintiff in August 2004.

Kling

denied this request because it lacked sufficient information to
justify an optional pay award only eight months after the prior,
December 2003, optional pay award.

In October 2004, Reed and

Thompson submitted another optional pay request for the plaintiff.
Kling granted this request, and the plaintiff received a 5% salary
adjustment in a lump sum.

This optional pay was to compensate the

plaintiff for the additional duties she performed from July through
September 2004.
Gianelloni’s desk.

These additional duties were also related to
In early September 2004 the plaintiff informed

Reed and Thompson that she would no longer perform duties assigned
to Gianelloni’s position, and the plaintiff was relieved from
assisting with those duties.

6

On February 1, 2005 the plaintiff filed an internal grievance
with the DOA Office of Human Resources.

In this grievance, the

plaintiff requested: (1) that the ORM upper management provide an
explanation as to why she should be assigned “answering their
phones on a regular, permanent basis without any compensation”; (2)
that the ORM upper management provide written justification as to
why the organizational unit that she supervised was considered to
be a part of the ORM’s administrative unit; and, (3) that the ORM
upper management implement and adhere to policy and procedures to
ensure

“equality

employees

among

when it

promotions,

and

all

comes
other

to

employees,

specifically

hiring/termination,

considerations

‘black’

reallocations,

afforded

to

white

colleagues.”5
Reed

rated

the

plaintiff

performance appraisal.

a

3.20

on

her

March

24,

2005

This rating means “meets requirements,”

which was lower than her 2003 and 2004 performance ratings.

With

this rating the plaintiff was eligible for and received a merit pay
increase.

However, the plaintiff disagreed with this performance

rating and on June 3, 2005 filed a another grievance with DOA
Office of Human Resources. In her grievance the plaintiff included
complaints of retaliatory disciplinary actions taken against her
and continuing discrimination, disparate treatment and a hostile

5

Record document number 191-21, Plaintiff Exhibit C, pp. 1-

12.
7

work environment.6
Reed

rated

the

plaintiff

performance appraisal.
“poor.”

a

2.40

on

her

March

24,

2006

This rating means “needs improvement”" or

As a result of this rating, the plaintiff was ineligible

for a merit pay increase.
September

24, 2006

Reed rated the plaintiff a 2.45 on her

six-month

re-rating

performance

appraisal.

Plaintiff's rating again was “needs improvement” or “poor,” again
resulting in the denial of a merit pay increase.
In March 2006 the plaintiff was disciplined and received a
reduction in pay equal to a one-day suspension.

Plaintiff filed a

Civil Service appeal challenging the suspension, but Civil Service
upheld the disciplinary action in a decision issued on October 27,
2006.7
On November 8, 2006, Reed, with Thompson's approval, issued
the plaintiff a “Letter of Counseling,” and Thompson issued the
plaintiff a “Letter of Instruction” on November 22, 2006.

Both of

these letters related to emails exchanged between the plaintiff and
Thompson concerning the use of a tire pump.8

6

Because of the

Id., pp. 13-33.

7

During her employment with ORM, the plaintiff filed several
appeals with Civil Service: April 22, 2004 (appeal of reallocation
from Administrative Manager 3 to 4), April 22, 2005, February 17,
2006 (appeal of reallocation from Administrative Manager 4 to 5),
March 31, 2006 (appeal of disciplinary action one-day suspension/
reduction in pay), and February 2007.
8

Plaintiff sent an e-mail response to Thompson’s Letter of
(continued...)
8

content

of

her

emails

to

him,

Thompson

issued

plaintiff

a

Pre-deprivation Letter on November 27, 2006, recommending that she
be given a one-hour loss of pay suspension.9

On November 28, 2006,

the plaintiff submitted a grievance to the DOA Commissioner's
office.10
However,

the

one-hour

suspension

was

never

carried

out.

Rather, subsequent events related to the plaintiff’s communications
with Thompson about the tire pump led to a decision to recommend
termination.11

Goodson reviewed the information presented to her

regarding the plaintiff’s behavior and approved the December 5,
2006 termination recommendation of Reed, Thompson and Graham.

On

December 8, 2006, a Pre-deprivation Letter was mailed to the
plaintiff,

in

which

the

plaintiff

was

recommendation to terminate her employment.12
the letter on or about December 10, 2006.

informed

of

the

Plaintiff received

Plaintiff's employment

with the ORM ended effective February 1, 2007.
Kling had no involvement in either the selection of Jones to

8

(...continued)
Instruction the same day. Record document number 196-2, pp. 69-70,
Letter of Instruction; p. 71, plaintiff’s email response.
9

Id. at 73-74.

10

Record document number 191-21, Plaintiff Exhibit C, pp. 42-

11

Record document number 188-4, pp. 147-148.

12

Record document number 188-4, pp. 76-79.

53.

9

fill the Executive Staff Officer position or the plaintiff’s
discharge because as of March 2005 he was no longer employed by the
DOA.
Plaintiff filed a charge of discrimination with the EEOC in
August 2005 and submitted additional information to amend her
charge in February 2006.13

Plaintiff alleged discrimination on the

basis of race and retaliation.

The EEOC did not find a statutory

violation and issued a dismissal and notice of right to sue on
August 18, 2006.14

Plaintiff filed her original complaint in this

case on November 16, 2006.
Plaintiff’s

original

Complaint,15

First

Amended

and

Supplemental Complaint,16 and second Amended Complaint17 collectively
alleged discrimination and harassment based on race and retaliation
in violation of Title VII, 42 U.S.C. § 2000e, et seq., 42 U.S.C. §
1981, and the Louisiana Employment Discrimination Law (LEDL),
La.R.S. 23:332.
whistleblower

Plaintiff also alleged a violation of Louisiana’s
statute,

La.R.S.

13

23:967,

a

claim

for

workers’

Record document number 191-20, Plaintiff Exhibit B, pp. 1165. Plaintiff submitted her charge first to the Louisiana
Commission on Human Rights, which by letter dated June 15, 2005
referred it to the EEOC for processing. Plaintiff’s EEOC Charge
Number 270-2005-04363 is dated August 11, 2005.
14

Id. at 45.

15

Record document number 1.

16

Record document number 9.

17

Record document number 40.
10

compensation retaliation under La.R.S. 23:1361(B), and a claim for
intentional infliction of emotional distress under Louisiana Civil
Code Article 2315.
Defendants now move for summary judgment as to all federal and
state law claims alleged by the plaintiff.
Summary Judgment Standard and Applicable Law
Summary judgment is only proper when the moving party, in a
properly supported motion, demonstrates that there is no genuine
issue of material fact and that the party is entitled to judgment
as a matter of law.

Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986).

If

the moving party carries its burden under Rule 56(c), the opposing
party must direct the court’s attention to specific evidence in the
record which demonstrates that it can satisfy a reasonable jury
that it is entitled to verdict in its favor.
252, 106 S.Ct. at 2512.
metaphysical

doubt

as

Anderson, 477 U.S. at

This burden is not satisfied by some
to

the

material

facts,

conclusory

allegations, unsubstantiated assertions or only a scintilla of
evidence.

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994)(en banc); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
540 (5th Cir. 2005).

In resolving the motion the court must review

all the evidence and the record taken as a whole in the light most
favorable to the party opposing the motion, and draw all reasonable
inferences in that party’s favor.
11

Anderson, 477 U.S. at 255, 106

S.Ct. at 2513.
the

evidence,

The court may not make credibility findings, weigh
or

resolve

factual

Sanderson Plumbing Prods., Inc.,
2097, 2110 (2000).

disputes.

Id.;

Reeves

v.

530 U.S. 133, 150, 120 S.Ct.

On summary judgment, evidence may only be

considered to the extent not based on hearsay or other information
excludable at trial.

Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.

1995); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547,
549 (5th Cir. 1987).
The

applicable

substantive

law

dictates

which

facts

are

material. Canady v. Bossier Parish School Bd., 240 F.3d 437, 439
(5th Cir. 2001).

The following substantive law is applicable in

this case.
Race and Hostile Work Environment Discrimination Claims
The well-established McDonnell Douglas18 framework is applied
to

consideration

of

race

federal and state law.19

discrimination

claims

brought

under

To establish a prima facie case of race

discrimination, the plaintiff must demonstrate that she is:

(1) a

member of a protected class; (2) qualified for the position; (3)
suffered an adverse employment action; and, (4) was replaced by

18

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817 (1973).
19

Race discrimination in employment claims under § 1981, Title
VII and the LEDL are governed by the same analysis. See, Hernandez
v. Yellow Transp., Inc., 641 F.3d 118, 123 (5th Cir. 2011); DeCorte
v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007).
12

someone outside of the protected class, or that others outside of
the protected group and similarly situated were treated more
favorably.

Okoye v. University of Texas Houston Health Science

Center, 245 F.3d 507, 512-13 (5th Cir. 2001).

The elements of a

plaintiff’s prima facie case necessarily vary depending on the
particular facts of each case, and the nature of the claim.
LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996);
McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13.
A

plaintiff’s

discrimination

prima

that

facie

shifts

the

case

creates

burden

of

an

inference

production

to

of
the

defendant to come forward with evidence that the adverse employment
action was taken for a legitimate, nondiscriminatory reason.

The

burden is one of production, not persuasion, and “can involve no
credibility assessment.”

Reeves, 530 U.S. at 142, 120 S. Ct. at

2106, citing, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509,
113 S.Ct. 2742, 2748 (1993); Crawford v. Formosa Plastics Corp.,
234 F.3d 899, 902 (5th Cir. 2000).
Once the employer articulates a legitimate nondiscriminatory
reason and produces competent summary judgment evidence in support
of it, the inference created by the prima facie case drops out of
the picture.
222

Russell v. McKinney Hospital Venture, 235 F.3d 219,

(5th Cir. 2000).

The McDonnell Douglas framework with its

presumptions and burdens disappears, and the only remaining issue
is discrimination vel non.

The fact finder must decide the
13

ultimate question of whether the plaintiff has proven intentional
discrimination.

Id.; Reeves, supra.

A plaintiff may attempt to establish that she was the victim
of

intentional

employer’s
belief.

discrimination

legitimate

The

trier

by

offering

nondiscriminatory

of

fact

may

evidence

reason

also

is

consider

that

unworthy
the

the
of

evidence

establishing the plaintiff’s prima facie case, and inferences
properly drawn from it, on the issue of whether the defendant’s
explanation is pretextual.
222-23.

Reeves, supra; Russell, 235 F.3d at

Thus, a plaintiff’s prima facie case, combined with

sufficient

evidence

to

find

that

the

employer’s

asserted

justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.

Reeves, 120 S.Ct. at

2108-09; Russell, 235 F.3d at 223.
Whether summary judgment is appropriate in any particular case
will depend on a number of factors including the strength of the
plaintiff’s prima facie case, the probative value of the proof that
the

employer’s

explanation

is

false,

relevant to the employer’s motive.
Crawford, 234 F.3d at 902.

and

any

other

evidence

Reeves, 120 S.Ct. at 2109;

The ultimate determination in every

case is whether, viewing the evidence in the light most favorable
to

the

plaintiff,

discrimination.

a

reasonable

fact

finder

could

infer

Crawford, supra.

As a result of the Supreme Court’s decision in Desert Palace
14

v. Costa, 539 U.S. 90, 123 S.Ct. 2148 (2003), the Fifth Circuit has
developed a modified McDonnell Douglas approach under which a
plaintiff relying on circumstantial evidence in support of his
claim is not limited to demonstrating that the defendant’s reason
is pretextual, and may alternatively establish that discriminatory
animus was a motivating factor in an adverse employment decision.
Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir.
2005); Machinchick v. PB Power, Inc., 398 F.3d 345, 351-352 (5th
Cir. 2005), citing, Rachid v. Jack in the Box, Inc., 376 F.3d 305,
311 (5th Cir. 2004).
The parties’ burdens under the modified McDonnell Douglas
approach are as follows:
[Plaintiff] must still demonstrate a prima facie case of
discrimination; the defendant then must articulate a
legitimate, non-discriminatory reason for its decision to
terminate the plaintiff; and, if the defendant meets its
burden of production, the plaintiff must then offer
sufficient evidence to create a genuine issue of material
fact either (1) that the defendant's reason is not true,
but is instead a pretext for discrimination (pretext
alternative); or (2) that the defendant’s reason, while
true, is only one of the reasons for its conduct, and
another motivating factor is the plaintiff’s protected
characteristic (mixed-motive alternative).
Machinchick, 398 F.3d at 352; Keelan, 407 F.3d at 341.
Therefore, in order to withstand summary judgment, using
direct or circumstantial evidence, the plaintiff is required to
present sufficient evidence for a reasonable jury to conclude that
race was a motivating factor for the defendant’s adverse employment
action.

Roberson v. Alltell Information Services, 373 F.3d 647,
15

652 (5th Cir. 2004).
Adverse employment actions include only ultimate employment
decisions such as hiring, granting/denying leave, discharging,
promoting or compensating.

McCoy v. City of Shreveport, 492 F.3d

551, 559 (5th Cir. 2007).
Plaintiff may establish a violation of Title VII, § 1981 and
the

LEDL

by

proving

that

the

workplace

is

permeated

with

discriminatory intimidation, ridicule and insult which is so severe
or pervasive that it alters the conditions of employment and
creates a hostile or abusive working environment.

Harris v.

Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 370 (1993);
Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298-99 (5th Cir.
2001); Felton v. Polles, 315 F.3d 470 (5th Cir. 2002); Assamad v.
Percy Square and Diamond Foods, LLC, 2007-1229 (La.App. 1 Cir.
7/29/08),

993

So.2d

644,

11/10/08), 996 So.2d 1077.
discrimination

has

created

648,

writ

denied,

2008-2138

(La.

In order to establish a claim that
an

abusive

or

hostile

working

environment, a plaintiff must prove the following four elements in
cases where it is asserted that a supervisor with immediate or
successively higher authority perpetrated the harassment: (1) that
she belongs to a protected class; (2) that she was subjected to
unwelcome harassment; (3) that the harassment was based on a
prohibited ground, i.e., race, gender; and, (4) that the harassment
affected a term, condition, or privilege of employment.
16

Watts v.

Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999);20 Woods, supra, n.2.21
For harassment to affect a term, condition or privilege of
employment it must be both objectively and subjectively severe or
pervasive, i.e., the work environment must be one that a reasonable
person would find hostile or abusive, and one that the victim in
fact did perceive to be so.

Lauderdale v. Texas Dept. of Criminal

Justice, Inst. Div., 512 F.3d 157, 163 (5th Cir. 2007).

Whether a

working environment is objectively hostile or abusive is determined
by considering the totality of the circumstances.

Courts look to:

(1) the frequency of the discriminatory conduct; (2) its severity;
(3) whether it is physically threatening or humiliating as opposed
to

a

mere

offensive

utterance;

(4)

whether

it

unreasonably

interferes with an employee’s work performance, and (5) whether the
conduct undermines the plaintiff’s workplace competence.

Hockman,

407 F.3d at 325-26; Harris, 510 U.S. at 23, 114 S.Ct. at 371.
Not all harassment will affect the terms, conditions, or
privileges of employment.
comment or

remark

which

The mere utterance of an offensive
hurts

an

employee’s

feelings

is

not

20

Citing, Burlington Ind. V. Ellerth, 524 U.S. 742, 761, 118
S.Ct. 2257 (1998); Faragher v. City of Boca Raton, 524 U.S. 775,
118 S.Ct. 2275 (1998).
21

If the alleged harassment is committed by a co-worker rather
than a supervisor, the plaintiff must also prove a fifth elementthat her employer knew or should have known of the harassment and
failed to take prompt remedial action. Watts, supra, n. 3; Hockman
v. Westward Communications, LLC, 407 F.3d 317, 325 (5th Cir. 2004),
citing, Jones v. Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir.
1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952 (1987).
17

sufficient to affect the conditions of employment. Simple teasing,
offhand comments, and isolated incidents, unless they are extremely
serious, are not sufficient to affect the terms, conditions or
privileges of employment.

Lauderdale, supra; Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986).
Retaliation Claims
A plaintiff establishes a prima facie case for unlawful
retaliation under 42 U.S.C. § 2000e-3(a) and § 1981 by proving
that: (1) he or she engaged in activity protected by the statute;
(2) an adverse employment action occurred; and, (3) a causal
connection exists between the protected activity and the adverse
employment action.

LeMaire v. State of Louisiana, 480 F.3d 383,

388 (5th Cir. 2007).22
An employee has engaged in protected activity if he or she
has: (1) opposed any practice made an unlawful employment practice
by the statute; or, (2) made a charge, testified, assisted or
participated in any manner in a Title VII investigation, proceeding
or hearing.

Grimes v. Texas Dept. of Mental Health, 102 F.3d 137,

140 (5th Cir.1996). The opposition clause requires the employee to
show that he or she had at least a reasonable belief that the
practices opposed were unlawful.
22

Long v. Eastfield College, 88

Anti-retaliation provisions are absent from the section of
the LEDL that prohibits discrimination based on race, color,
religion, sex and national origin.
See, Smith v. Parish of
Washington, 318 F.Supp.2d 366, 373 (E.D.La. 2004).
18

F.3d 300, 304 (5th Cir. 1996).

However, proof of an actual

unlawful employment practice is not required to state a claim for
unlawful

retaliation.

Id.,

at

309,

n.10,

citing,

Payne

v.

McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1137-41 (5th
Cir. 1981).
Title VII’s retaliation provision is not limited to actions
and harms that relate to employment or occur at the workplace, or
to ultimate employment decisions.

It covers employer actions

materially adverse to a reasonable employee, that is, actions that
well might have dissuaded a reasonable employee from making or
supporting a charge of discrimination. Burlington Northern & Santa
Fe Railway Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 2415
(2006); Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th
Cir. 2008).
The causal link required by the third prong of the prima facie
case does not have to meet a “but for” standard.

A plaintiff does

not have to prove that his protected activity was the sole factor
motivating the employer’s challenged actions to establish the
causal link element of a prima facie case.
F.3d 342, 345 (5th Cir. 2002).

Gee v. Principi, 289

Close timing between an employee’s

protected activity and an adverse action against the employee may
provide the causal connection needed to make out a prima facie case
of retaliation.

McCoy, 492 F.3d at 562, n. 28; Swanson v. General

Services Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
19

If

the

plaintiff

establishes

a

prima

facie

case

of

retaliation, the defendant must come forward with a legitimate,
non-retaliatory reason for its adverse employment action.

After

the defendant advances its reason, the focus becomes whether the
employer retaliated against the employee because he or she engaged
in protected activity, which is the ultimate issue in a retaliation
case.

Although

not

in

itself

conclusive,

the

timing

of

an

employer’s actions can be a significant factor in the court’s
analysis of a retaliation claim.

Shirley v. Chrysler First, Inc.,

970 F.2d 39, 44 (5th Cir. 1992).
In Title VII retaliation claims the Fifth Circuit decision in
Smith v. Xerox Corp.23 modified the law applicable to a plaintiff’s
burden of proving retaliation.

The court looked to its Title VII

retaliation precedents based on Price Waterhouse v. Hopkins,24 and
the Supreme Court decision in Desert Palace, Inc. v. Costa.25

The

court concluded that a mixed-motive theory may still be used in
Title VII retaliation cases, and a plaintiff is not required to
have direct evidence of retaliation to proceed under this theory.
Prior to Smith, the Fifth Circuit had stated that for a
plaintiff

to

prevail

on

a

Title

VII

retaliation

claim,

the

plaintiff had to prove that the adverse employment action would not

23

602 F.3d 320, 329-30 (5th Cir. 2010).

24

490 U.S. 228, 109 S.Ct. 1775 (1989).

25

539 U.S. 90, 123 S.Ct. 2148 (2003).
20

have occurred but for the protected activity. Strong v. University
Health Care System, L.L.C., 482 F.3d 802, 806 (5th Cir. 2007)
(decision in Septimus leaves no doubt that the but for standard
controls); Septimus v. University of Houston, 399 F.3d 601, 608-09
(5th Cir. 2005).

It is now apparent from the Fifth Circuit’s

analysis in Smith that a plaintiff may also satisfy the burden of
proving retaliation under Title VII by demonstrating that unlawful
retaliation was a motivating factor in the employer’s adverse
employment decision.
the

plaintiff,

Consequently, to withstand summary judgment

using

direct

or

circumstantial

evidence,

must

present sufficient evidence for a reasonable jury to conclude that
retaliation was a motivating factor for the defendant’s employment
action.

See, Roberson, supra, citing, Desert Palace, 539 U.S. at

101, 123 S.Ct. at 2155.
The Louisiana whistleblower statute, LSA-R.S. 23:967 provides
in pertinent part:
A. An employer shall not take reprisal against an
employee who in good faith, and after advising the
employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or
practice that is in violation of state law.
(2) Provides information to or testifies before any
public body conducting an investigation, hearing, or
inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment
act or practice that is in violation of law.
The statute also states: “Reprisal includes firing, layoff,

21

loss of benefits, or any discriminatory action the court finds was
taken as a result of an action by the employee that is protected”
under the statute.

LSA-R.S. 23:967(C)(1).

While the Louisiana

Supreme Court has not interpreted this statute, it is the consensus
thus far of the lower Louisiana courts that the employer must have
committed an actual violation of state law.

Beard v. Seacoast

Elec., Inc., 2006-1244 (La.App. 4 Cir. 2/4/07), 951 So.2d 1168;
Accardo v. Louisiana Services & Indem. Co., 2005-2377 (La.App. 1
Cir. 6/21/06), 943 So.2d 381, 387; Hale v. Touro Infirmary, 20040003 (La.App. 4 Cir. 11/3/04), 886 So.2d 1210, writ denied, 20050103 (La. 3/24/05), 896 So.2d 1036; Puig v. Greater New Orleans
Expressway Comm’n, 2000-924 (La.App. 5 Cir. 10/31/00), 772 So.2d
842, writ denied, 2000-3531 (La. 3/9/01), 786 So.2d 731; Diaz v.
Superior Energy Services LLC, 341 Fed.Appx. 26 (5th Cir. 2009).
Therefore, under LSA-R.S. 23:967 the plaintiff must prove an actual
violation of state law, not just a good faith belief that a law was
broken.26
Other than this difference, the standards governing claims
under Louisiana’s whistleblower statute and Title VII retaliation
claims are materially indistinguishable.

Strong, supra.

Intentional Infliction of Emotional Distress Claim
In order to recover for intentional infliction of emotional
26

Proof of an actual unlawful employment practice is not
required for a Title VII retaliation claim. Long, supra.
22

distress, a plaintiff has the burden of proving that: (1) the
conduct of the defendant was extreme and outrageous; (2) the
emotional

distress suffered

by

her

was

severe; and,

(3)

the

defendant desired to inflict severe emotional distress or knew that
severe emotional distress would be certain or substantially certain
to result from the conduct.

White v. Monsanto Co., 585 So.2d 1205,

1209-10 (La. 1991); Deus v. Allstate Insurance Co., 15 F.3d 506,
514 (5th Cir. 1994).

The conduct complained of must be so

outrageous in character and so extreme in degree that it goes
beyond all possible bounds of decency and is regarded as utterly
intolerable in a civilized community.

Id.

Liability arises only

where the mental suffering or anguish is extreme, and the distress
suffered must be such that no reasonable person could be expected
to endure it.

White, 585 So.2d at 1210.

Louisiana law sets a high threshold for establishing a claim
for intentional infliction of emotional distress in a workplace
environment.27

Liability is usually limited to cases involving a

pattern of deliberate, repeated harassment over a period of time,
and the resulting mental anguish or suffering must be extreme or
unendurable.28

27

See, Smith v. Amedisys, 298 F.3d 434, 449-50 (5th Cir.
2002), citing, White, 585 So.2d at 1209-10.
28

Bustamento, 607 So.2d at 538 (outrageous conduct must cause
serious emotional harm to the plaintiff); White, 585 So.2d at 1210
(distress suffered must be such that no reasonable person could be
(continued...)
23

Analysis
Race and Hostile Work Environment Discrimination Claims
Defendants moved for summary judgment as to the plaintiff’s
claim that she was subjected to discrimination and a hostile work
environment because of her race.

In their motion the defendants

did not dispute that the first two elements of a prima facie case
are met - the plaintiff is a member of a protected class and she
was qualified for the positions she held.
argued that

the

great

majority

of

Defendants, however,

the actions

the plaintiff

contends were motivated by race discrimination are not ultimate
employment decisions under McCoy.29

Defendants asserted that the

evidence of record establishes only two ultimate adverse employment
decisions: (1) the denial of the Executive Staff Officer job in May
2006, and (2) the plaintiff’s termination in December 2006.
Defendants argued that the March 2006 disciplinary action
wherein the plaintiff was given a reduction in pay equal to a one
day suspension, did not constitute an ultimate employment decision,
but

considered

it

as

such

for

the

purposes

of

this

motion.

According to the defendants, the record demonstrates that the

28

(...continued)
expected to endure it; liability arises only where the mental
suffering or anguish is extreme).
29

Adverse employment actions include only ultimate employment
decisions such as hiring, granting/denying leave, discharging,
promoting or compensating. McCoy, supra.
24

plaintiff does not have evidence of a prima facie case, or evidence
to dispute the legitimate, nondiscriminatory reasons for their
adverse employment actions, or any other evidence from which a
reasonable jury could conclude that race was a motivating factor in
the alleged adverse employment actions.

Each of these three

employment actions are addressed below.
Denial of Executive Staff Officer Position in May 2006
The record contains uncontested evidence that the plaintiff
was denied the position, but that the person selected - Vickie
Jones - was qualified for the job and is the same race as the
plaintiff.

Without any evidence that someone outside of the

plaintiff’s protected class was selected, or that others outside of
the protected group and similarly situated to the plaintiff were
treated more favorably, the plaintiff cannot establish a prima
facie case of race discrimination based on the defendants’ denying
her

this

position

in

May

2006.

Moreover,

according

to

the

plaintiff’s own testimony, she did not believe she was better
qualified than Jones, that Jones was unqualified, or that race was
a factor in the selection of Jones.30
Therefore, as to the denial of this position, the plaintiff
has failed to present evidence to establish a prima facie case or
any evidence from which a reasonable trier of fact could infer that
30

Record document number 191-10,
Plaintiff depo., depo. pp. 90-91.
25

Plaintiff

Exhibit

7,

race was a motivating factor in the decision to appoint Jones
rather than the plaintiff.
March 22, 2006 One Day Suspension/Loss of Pay
Defendants essentially argued that the record contains no
evidence that race was a motivating factor in this disciplinary
action.

Defendants pointed out that the supervisors who initiated

and recommended the disciplinary action, Reed and Thompson, were
the same individuals who in August 2002 selected the plaintiff for
a position in the ORM instead of one of the six white applicants.
Defendants also noted the absence of any evidence in the record to
dispute

the

legitimate,

nondiscriminatory

reasons

for

the

suspension, or any facts which show that other similarly situated
white employees were treated more favorably than the plaintiff.
Assuming that the one day suspension and loss of pay is an
ultimate adverse employment decision, the summary judgment record
does not contain any evidence which could support a reasonable
inference that race was a motivating factor in the decision.
The record sets forth the undisputed facts leading up to the
disciplinary

action.

While

the

plaintiff

responded

to

the

Discipline Letter by defending her actions and disputing the
defendants’ interpretation of her actions, she did not dispute that
she made the statements and/or took the actions that formed the

26

basis of the one day suspension.31

Nor did the plaintiff present

any evidence that white employees who were similarly situated to
her took similar actions and were treated more favorably, i.e., not
disciplined at all or disciplined in a lesser manner.
In the context of a race discrimination claim where the
plaintiff alleges that employees who were not members of the
protected

class

received

more

lenient

discipline

for

similar

violations, the plaintiff must come forward with specific evidence
of comparators who were similarly situated.

Lee v. Kansas City

Southern Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009).

The Fifth

Circuit has stated that:
This is because we require that an employee who proffers
a fellow employee as a comparator demonstrate that the
employment actions at issue were taken under nearly
identical circumstances. The employment actions being
compared will be deemed to have been taken under nearly
identical circumstances when the employees being compared
held the same job or responsibilities, shared the same
supervisor or had their employment status determined by
the same person, and have essentially comparable
violation histories. And, critically, the plaintiff’s
conduct that drew the adverse employment decision must
have been nearly identical to that of the proffered
comparator who allegedly drew dissimilar employment
decisions.(internal citations and quotes omitted).
Lee, 574 F.3d at 260.

31

Record document number 196-1, Reed Supplemental Declaration,
Defendants Exhibit A; record document number 192-2, Defendants
Exhibit 1, pp. 7-29.
Plaintiff appealed the suspension to the
Civil Service Commission. The Commission denied the appeal and
affirmed the disciplinary action in a decision issued October 27,
2006. Record document number 196-2, Defendants Exhibit 1, pp. 3035.
27

Although the plaintiff generally alleges and asserted that her
white co-workers, Gianelloni and Glass, were treated more favorably
by the defendants in regard to disciplinary actions,32 the plaintiff
did not come forward with any evidence to support this claim, i.e.,
that Gianelloni or Glass were similarly situated with respect to
their positions, supervision, job duties and disciplinary history,
engaged in similar conduct as the plaintiff, but were not subjected
to similar disciplinary actions.

Without evidence that other

similarly situated persons outside of the protected class were
treated more favorably than the plaintiff, or any evidence to
dispute the legitimate, nondiscriminatory reasons given by the
defendants for the one day suspension, there is no evidence from
which a reasonable jury could infer that race was a motivating
factor in the decision.
Termination
Defendants argued that summary judgment should be granted as
to the claim that race discrimination motivated the decision to
terminate the plaintiff’s employment. Defendants relied in part on
the “same actor” inference, arguing that there can be no inference
of

race

discrimination

on

the

part

of

Reed

and

Thompson

in

recommending termination because in 2002 they made the decision to

32

Record document number 191-2, Plaintiff Memorandum
Opposition to Defendants Motion for Summary Judgment, p. 9.
28

in

hire the plaintiff rather than one of the six white applicants.33
Defendants also argued the plaintiff has no evidence that similarly
situated white employees engaged in similar conduct but were not
terminated,

nor

nondiscriminatory

any

evidence

reason

refute

the

legitimate,

terminating

for

to

the

plaintiff’s

employment.
Plaintiff responded by arguing that she (1) has established a
prima facie case of race discrimination based on evidence that
after her termination the position was filled by someone outside
the protected

class,

and

(2)

presented

evidence that

she

is

similarly situated to her two white co-workers, Gianelloni and
Glass, and they were treated more favorably with regard to leave
usage, compensation, and discipline.
The record contains uncontested facts which establish the
plaintiff’s prima facie case. Plaintiff is a member of a protected
class

and

establishes

was

qualified

that

after

for
the

replaced by a white female.34

her

position.

plaintiff

was

The

record

terminated

she

also
was

Plaintiff’s prima facie case shifts

33

See, Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 321 (5th
Cir. 1997); Stover v. Hattiesburg Public School Dist., 549 F.3d
985, 994-95 (5th Cir. 2008), citing, Brown v. CSC Logic, Inc., 82
F.3d 651, 658 (5th Cir. 1996).
34

Record document number 191-5, Plaintiff Exhibit 2, Thompson
depo., depo. pp. 118-19. Because the plaintiff has evidence that
she was replaced by someone outside the protected class, it is
unnecessary to address the plaintiff’s argument that Glass and
Gianelloni were similarly situated to her but were treated more
(continued...)
29

to

the

defendants

nondiscriminatory

the

burden

reason

for

of

producing

terminating

a

the

legitimate,
plaintiff’s

employment.
Defendants satisfied their burden of production by relying on
the affidavits and deposition testimony of Reed, Thompson, Graham,
Goodson, and Cardona, as well as the documents attached to the
affidavits of Reed, Thompson and Graham.
reason

is

essentially

summarized

in

Defendants’ proffered
the

January

23,

2007

termination letter to the plaintiff from Thompson notifying her
that her employment would be terminated effective February 1,
2007.35

Defendants

terminated

because

presented
she

evidence

provided

her

that

the

plaintiff

subordinates,

Glass

was
and

Christopher, with email correspondence between herself and Thompson
related to their managerial dispute over the use of a tire pump.
This action was the same conduct for which the plaintiff had been
suspended in March of 2006, a suspension upheld by the Civil
Service Commission on October 27, 2006.
also

cited

additional

examples

of

The termination letter
the

plaintiff’s

prior

unsatisfactory behavior: (1) May 2005 emails between the plaintiff
and Reed regarding designating Glass as backup safety manager; (2)

34

(...continued)
favorably with regard to discipline. In any event, as analyzed
herein, the plaintiff’s assertions related to Glass and Gianelloni
are conclusory and unsupported by specific facts.
35

Record document number 196-2, Defendants Exhibit 1, pp. 1-6.
30

inappropriate statements during a September 19, 2006 meeting with
Reed and Thompson to discuss her job performance; and, (3) the
plaintiff’s email response to Thompson’s November 22, 2006 Letter
of Instruction.
Thompson’s termination letter also stated that after the
December 8, 2006 pre-termination letter was delivered to the
plaintiff and the plaintiff was given an opportunity to respond,
her only response was to deny forwarding the November 3, 2006
emails to anyone.

Defendants stated that their investigation

indicated the plaintiff did in fact take the actions which led to
their decision to terminate her employment.
In

opposition,

the

plaintiff

failed

to

offer

sufficient

evidence to dispute the reasons set forth in Thompson’s termination
letter, specifically those reasons related to the tire pump emails.
The record establishes that between the Pre-deprivation Letter and
the termination letter, the plaintiff’s only response was to deny
that she sent the emails to Glass. Plaintiff’s denial was noted in
the

termination

letter,

but

the

defendants

stated

their

investigation supported the conclusion that the plaintiff did in
fact transmit the emails.

Plaintiff cited no evidence to dispute

the results and conclusions of the defendants’ investigation.
Specifically, she pointed to no evidence contradicting the evidence
showing that Glass supplied verbal and written information to Reed
and Graham that the plaintiff sent Glass the emails related to the

31

tire pump.
Plaintiff
defendants’

has

no

facts

investigation

investigation.

to

and

dispute

the

the

conclusions

results
based

of
on

the
that

Her denial and her belief that someone else sent

the email from her computer are insufficient to create a genuine
factual dispute over this basis for the decision to terminate her
employment.
Plaintiff relied on Christopher’s affidavit to oppose the
defendants’ evidence.

However, Christopher stated only that she

told the plaintiff that she, Christopher, never received the emails
or found them on her computer.36

Christopher did not state that

during the investigation she told the defendants she did not
receive the plaintiff’s emails or find them on her computer.
Plaintiff also argued that Graham, Cardona, Reed, Thompson and
Glass gave contradictory testimony in connection with the pretermination investigation, but cited no evidence to support this
assertion other than the differences between the testimony of
Cardona and Graham regarding the forensic examinations of Glass’
computer. This evidence may be conflicting, but it does not create
a material factual dispute regarding the results of the defendants’
investigation,

which

included

a

36

forensic

examination

of

the

Record document number 191-16, Plaintiff Exhibit 12,
Christopher affidavit. Christopher also stated the plaintiff never
provided her with hard copies of any correspondence that was
exchanged between the plaintiff and Thompson.
32

plaintiff’s computer.37

Plaintiff also submitted evidence to show

that she had an excellent record of performance during her first
years at the ORM and other agencies prior to being hired by Reed
and Thompson. Accepting this evidence as true, it does not dispute
the nondiscriminatory reasons and factual basis set forth in the
termination letter.
Finally, the record contains uncontested evidence that Reed
and Thompson, who were the plaintiff’s immediate supervisors, were
two of the primary decisionmakers involved in the decision to
terminate the plaintiff’s employment.

In 2002 these supervisors

hired the plaintiff instead of one of the six white applicants.
Given this fact and the lack of evidence of disparate treatment or
to dispute the defendants’ legitimate, nondiscriminatory reasons,
the

evidence

supporting

the

insufficient

to

create

a

plaintiff’s

claim

that

plaintiff’s

genuine

race

was

a

prima

dispute

facie

for

motivating

trial
factor

case

is

as

to

in

her

termination.
Denial of September 2002 Pay Request, Position Upgrades
Plaintiff’s opposition memorandum recited a long list of
adverse employment actions, some of which involved promotion and/or
compensation and allegations of race discrimination.

For purposes

of this motion, it is assumed that these are ultimate adverse
37

Record document number 191-14, Plaintiff Exhibit 10, Cardona
depo., depo. pp. 206-09, 216, 218-21 and 267-69.
33

employment decisions under McCoy.
Plaintiff claimed race discrimination in the denial of her
September 2002 request for higher pay.38

Plaintiff relied on

evidence that a similar request made by Christopher at the same
time was also denied, and also cited to deposition testimony of
Reed, Thompson and Kling which she claimed supports her allegations
that white employees received more favorable treatment with regard
to awards of higher pay under the optional pay and 6.5g policy.39
Again, to support an inference of disparate treatment, the
plaintiff must come forward with evidence of comparators who are
similarly situated to her.

Although the evidence cited by the

plaintiff shows numerous white employees within the ORM were
recommended and approved for optional pay and/or 6.5g pay,40 the
plaintiff

failed

to

come

forward

with

evidence

that

the

circumstances under which they were awarded higher pay were similar

38

Record document number 191-2, Plaintiff Memorandum in
Opposition to Defendants’ Motion for Summary Judgment, p. 16.
Plaintiff cited to the allegations contained in paragraphs 9-16 of
her second Amended Complaint filed August 22, 2008.
Record
document number 40.
39

It is unclear whether the September 2002 pay request
submitted for the plaintiff was for optional and/or 6.5g pay.
Record document number 191-30, Plaintiff Exhibit V, pp. 1-6. Reed
testified that the plaintiff offered to resign in order to obtain
6.5g pay or salary adjustment, but the evidence did not indicate
when the plaintiff made this offer or if it was made in connection
with the September 2002 pay request. Record document number 191-7,
Plaintiff Exhibit 4, Reed depo., depo. p. 307.
40

See, e.g., Id. depo. pp. 303-310.
34

to her September 2002 pay request.

For example, the plaintiff

presented evidence of white employees who received increases, but
the individuals were either in different units than the plaintiff,
held

and/or

were

moving

into

different

positions

than

the

plaintiff, had different supervisors, or made their requests at
different times than the plaintiff.41

Furthermore, the plaintiff

testified and presented evidence that Reed, Thompson and Kling all
recommended the pay increase she sought in September 2002.42

Given

this undisputed fact and the absence of evidence that similarly
situated white employees were given more favorable treatment by the
defendants, the plaintiff’s claim that the denial of her pay
request in September 2002 was because of her race is unsupported.43
Plaintiff also alleged that the defendants conspired to thwart
two allocation requests for position upgrades submitted to Civil
Service in April 2004 and February 2006.

Plaintiff asserted that

41

See, documents and deposition testimony related to awards
of optional pay and 6.5g pay for white employees of ORM such as
Kling, Thompson, Cardona, Cynthia Roman, Susan Couvillion, Tommy
Arbour, Nancy Daigle, Barbara Rachal and Heather Hussein. Record
document number 191-30, Plaintiffs Exhibits V and W, and 191-31,
Plaintiffs Exhibit Y.
42

Record document number
Plaintiff depo., depo. p. 156.
43

191-10,

Plaintiff

Exhibit

7,

Plaintiff’s employment records in fact show that during the
plaintiff’s employment with the ORM she obtained received awards of
optional pay, a lateral transfer and two position upgrades. From
the beginning of the her employment with ORM in August 2002 to her
termination February 1, 2007, the plaintiff’s biweekly salary
increased from $1344.80 to 1847.20. Record document number 191-24,
Plaintiff Exhibit H, pp. 196-97.
35

the

defendants

never

opposed

any

of

the

position

allocation

requests, details to special duty, and/or job corrections that
resulted in similarly situated white employees, namely Glass and
Gianelloni, receiving salary adjustments.44
The undisputed evidence establishes that Thompson and Reed
recommended and submitted for approval a reallocation for the
plaintiff’s position to be upgraded from Administrative Manager 3
to Administrative Manager 4.

Plaintiff presented no evidence that

Reed or Thompson opposed this promotion.

Although the plaintiff

presented evidence which she claimed shows that Kling did not
support the reallocation, the undisputed evidence establishes that
despite any lack of support by Kling the plaintiff’s appeal of the
decision initially denying the reallocation was successful.

The

plaintiff received the promotion to Administrative Manager 4, and
did not suffer an adverse employment action.45

This uncontested

fact and the plaintiff’s failure to come forward with any evidence
that race was a motivating factor, demonstrates that there is no
genuine dispute for trial as to any claim of race discrimination
involving her promotion from Administrative Manager 3 to 4 in April
2004.
In January 2006, Reed, with Thompson's approval, submitted the

44

Record document number 191-2, Plaintiff Memorandum in
Opposition to Defendants Motion for Summary Judgment, pp. 18-19.
45

Record document number 191-23, Plaintiff Exhibit G, p. 181,
June 16, 2004 letter to the plaintiff from Glenn Balentine.
36

plaintiff's position description for an upgrade to Administrative
Manager 5 after additional duties were added.46

These additional

duties evolved from the Administrative Assistant position occupied
by Gianelloni.47

The request for the upgrade was denied and the

plaintiff appealed this decision to Civil Service on February 17,
2006.

However, after a review of the position description, job

specifications and a desk audit, Civil Service denied the appeal
and affirmed the plaintiff’s position as Administrative Manager 4.48
While the plaintiff asserted that the defendants never opposed
any of the position allocation requests, details to special duty,
and/or job corrections that resulted in her similarly situated
white co-workers, namely Glass and Gianelloni, receiving salary
adjustments, the plaintiff did not cite to any specific evidence to
support these assertions.49 For example, the plaintiff did not cite

46

Kling’s tenure ended in March 2005, so at the time of this
request for job reallocation/upgrade, Kling was no longer the
appointing authority for the DOA.
47

Record document number 205, Uniform Pretrial Order, p. 9,
Established Fact Number 26.
48

Record document number 191-24, Plaintiff Exhibit H, pp. 14142, June 29, 2006 letter to plaintiff from Anne S. Soileau,
Director of Civil Service.
49

Record document number 191-2, Plaintiff Memorandum in
Opposition to Defendants Motion for Summary Judgment, pp. 19-23.
It is undisputed that Glass was not similarly situated to the
plaintiff. Plaintiff supervised Glass and Glass was plaintiff’s
subordinate. See, e.g., record document number 191-14, Plaintiff
Exhibit 10, Cardona depo., depo p. 25; plaintiff depo., depo. pp.
141-43.
37

to any evidence regarding a specific incident involving a detail to
special duty or a job correction for Glass or Gianelloni, showing
their circumstances were similar to the plaintiff’s, but they were
treated more favorably than the plaintiff.

Nor did the plaintiff

cite to any evidence to dispute the Civil Service decision to deny
her position upgrade to Administrative Manager 5.

Therefore, with

regard to the denial of the plaintiff’s attempt to move up to
Administrator Manager 5, there is no evidence to support a prima
facie

case

of

race

discrimination

or

infer

that

race

was

a

motivating factor in the decision.
Plaintiff
memorandum

did

related

cite
to

to

her

evidence
claim

that

in

this

section

Gianelloni,

of

her

during

her

terminal illness, was given more favorable treatment than the
plaintiff

with respect

to

duties and responsibilities.

accommodations

in

positions/salary,

There is no factual dispute that the

plaintiff and Gianelloni were both approved for FMLA leave.

There

is also no dispute that the plaintiff and Gianelloni at various
times held similar positions in the administrative support unit of
the ORM under the same supervisors. However, accepting as true the
plaintiff’s

evidence

regarding

the accommodations

received

by

Gianelloni, the plaintiff did not provide any evidence to support
the claim that her medical conditions warranted the same or similar
accommodations that were given to Gianelloni, i.e. that she and
Gianelloni were similarly situated in terms of their need for

38

accommodations for an FMLA “serious health condition.”

Plaintiff

also did not present any evidence that she was limited in the
number of duties she could be assigned, or that she should not be
required and/or did not have the capacity to perform any of the
duties and responsibilities assigned by her supervisors and about
which she complained or filed grievances.50

Given this lack of

evidence, the plaintiff’s claim that Gianelloni received more
favorable

treatment/accommodations

because

she

was

white,

is

unsupported.
Therefore, as to salary, promotions and accommodation claims,
the plaintiff did not present evidence of a prima facie case of
race discrimination, or evidence from which a reasonable jury could
find

that

race

was

a

motivating

factor

in

these

employment

decisions.
Hostile Work Environment
Plaintiff’s initial memorandum did not cite any specific
evidence in support of her claim that she was subjected to a
racially hostile work environment.

50

In response to the defendants’

The FMLA evidence submitted by the plaintiff showed FMLA
notices dated from March 7, 2003 through April 4, 2006. Record
document number 191-25, Plaintiff Exhibit J, pp. 7-48. While the
2003 and 2004 documents indicated that the plaintiff could not
perform the listed essential job functions, the essential duties
listed after the question “IS EMPLOYEE ABLE TO PERFORM THIS DUTY”
in the March 18, 2005 and April 5, 2006 notices were all checked
“YES”. Id., pp. 39 and 48. Plaintiff did not contend that the
defendants ever denied her right to FMLA leave.
39

assertion that the plaintiff had essentially conceded this claim,
the

plaintiff

repeatedly

argued

harassed

the
and

evidence

shows

subjected

to

that:

(1)

unwarranted

she

was

internal

investigations based solely on the unsubstantiated testimony of
several of her white co-workers; (2) these white co-workers, as
well as Graham, Cardona, Thompson and Reed, accused the plaintiff
of misconduct but engaged in the same or similar conduct; (3) the
defendants relied on the unsubstantiated allegations made by white
co-workers to support their legitimate nondiscriminatory reasons
for her discharge; and, (4) the evidence establishes that the
atmosphere in the ORM was already hostile before she was hired by
the defendants.
Drawing all reasonable inferences in the plaintiff’s favor,
the

arguments

and

evidence

cited

by

the

plaintiff

are

not

sufficient for a reasonable jury to conclude any of the alleged
harassment was because of race. An essential element of a racially
hostile work environment claim is that the alleged harassment must
be based on race.

The above analysis with regard to plaintiff’s

termination, the denial of the Executive Staff Officer job, and the
other

adverse

employments

actions

the

plaintiff

claimed

were

discriminatory, demonstrates that the plaintiff failed to present
sufficient evidence to create a jury question on her claim of race
discrimination.

Plaintiff’s

failure

to

adduce

such

evidence

demonstrates a lack of support for an essential element of her

40

hostile environment claim - that the alleged harassing acts were
taken

because

of

her

race.

Therefore,

summary

judgment

is

appropriate as to the plaintiff’s claim that she was subjected to
a racially hostile work environment.
In summary, the defendants have established that they are
entitled to summary judgment as to the plaintiff claims of race
discrimination under Title VII, § 1981 and the LEDL.
Retaliation Claims
Defendants argued that under the Burlington Northern standard,
only three employment actions would be “materially adverse” to a
reasonable employee: (1) the one day suspension in March 2006; (2)
the selection of Jones rather than the plaintiff for the Executive
Staff Officer position; and, (3) the plaintiff’s termination.
Defendants argued that as to these employment actions the evidence
does not support a prima facie case of retaliation.

Defendants

also maintained that there is no evidence to rebut the legitimate,
nonretaliatiory reasons for these employment decisions.

With

regard to the other employment actions that the plaintiff claimed
were

retaliatory,

the

defendants

argued

that

none

of

them

constitute “materially adverse” employment actions under Burlington
Northern.51
51

Defendants cited: (1) Letter of Counseling, Letter of
Instruction and reprimand; (2) denial of a $200 safety bonus; (3)
denial of change in work hours; (4) denial of reimbursement for
(continued...)
41

A review of the summary judgment record shows that some of
defendants’ arguments have merit.

However, viewing the evidence

and drawing all reasonable inferences in the plaintiff’s favor,
summary judgment is not appropriate as to some of the alleged
retaliatory employment actions taken by the defendants after the
plaintiff amended her EEOC charge in February 2006.
Actions Not Materially Adverse to a Reasonable Employee
Plaintiff identified approximately 17 incidents or categories
of employment actions which she contended were “materially adverse”
employment actions.

A review of the plaintiff’s arguments and

evidence on some of these actions shows that they are not actions
that would dissuade a reasonable employee from making or supporting
a charge of discrimination. Under the Burlington Northern standard
a plaintiff must show that a “reasonable employee” would have found
the challenged action materially adverse. Whether an action is
materially adverse depends on the circumstances and should be
judged

from

the

perspective

of

a

reasonable

person

in

plaintiff’s position, considering all the circumstances.

the
The

purpose of the material adversity requirement is to separate

51

(...continued)
college courses; (5) lower than expected performance evaluation in
March 2005; (6) complaints about assignment of job duties and the
pay of other employees; and (7) refusal to attend out-of-state
conference.
42

significant from trivial harms.52
In

light

of

this standard,

the

evidence

related

to

the

following actions is not sufficient for a reasonable jury to could
conclude they would dissuade a reasonable employee from making or
supporting a charge of discrimination: (1) the denial of a $200
safety bonus; (2) the denial of special leave after Hurricane
Katrina; (3) the denial of reimbursement for college courses; (4)
the denial of job requests for two subordinates, Tracie West and
Kelvin Williams; (5) the denial of a 30 minute change in her work
schedule; (6) the denial of travel requests to attend an out-ofstate conference; (7) the repositioning plaintiff’s computer and
items on her desk; and, (8) the June 2006 investigation of the
plaintiff based on complaints by Reed and Brett Poirrier.
The safety bonus was clearly extra compensation, but there is
no evidence that the plaintiff experienced financial hardship
because she was denied this bonus.

Similarly, the denial of

special leave after Katrina did not prevent the plaintiff from
using her earned leave.

There is no evidence that the plaintiff

lost pay because she was denied the special leave request.
August

2004

the

plaintiff

sought

educational

leave

In
and

reimbursement for college courses she planned to take in the fall

52

Burlington Northern, 126 S.Ct. at 2417.
The Court also
noted that “[a]n employees’s decision to report discriminatory
behavior cannot immunize that employee from those petty slights or
minor annoyances that often take place at work and that all
employees experience.” Id., at 2415.
43

semester.

Plaintiff’s request for the educational leave needed to

take the classes was granted, but the request for reimbursement was
denied.

The evidence shows that the defendants clearly supported

the plaintiff’s request and would allow leave for the plaintiff to
attend classes.

Plaintiff presented no evidence that she was

discouraged or unable to attend classes because she was denied
reimbursement.
The denial of the job requests for West and Williams clearly
was adverse to these employees, but the plaintiff offered no
evidence to show that the actions were financially or otherwise
adverse or harmful to her.

Plaintiff requested a 30 minute shift

in her work schedule “to better accommodate doctor visits, physical
therapy appointments,

etc.”

The

request was

denied

and

the

explanation for the denial was to have the office more fully
staffed during core hours.
increased

workload

after

This need was related to the ORM’s
the

2005

hurricanes.

Although

the

plaintiff’s request was denied at that time, the plaintiff was told
that she could schedule her appointments later in the afternoon so
that she could go home after them instead of returning to work.53
Plaintiff did not present any evidence that the denial of her
request created any hardship in her ability to schedule her medical
appointments or obtain necessary treatment for her chronic health
conditions.

53

Record document number 191-26, Plaintiff Exhibit L, pp. 1-8.
44

Plaintiff’s request for her and Christopher to attend a
conference in Florida was denied, but there is no evidence that
this

denial

performance

adversely
of

her

affected

her

duties.

Plaintiff

job

financially
also

or

in

the

alleged

that

repositioning her computer monitor and moving personal items on her
desk

without

giving

her

prior

notification

was

retaliatory.

However, the plaintiff offered no arguments or evidence that this
conduct interfered with accommodations for her medical conditions,
or

amounted

to

anything

more

than

a

petty

slight

or

minor

annoyance.
Finally, in June 2006 complaints by Reed and Poirrier resulted
in an investigation by the human resources department.

However,

the record does not contain any evidence that any adverse action
was taken as a result of this investigation.
explain

or

cite

any

authority

which

Plaintiff failed to

shows

that

a

workplace

investigation, without any action being taken as a result of it, is
an adverse employment action that would dissuade a reasonable
employee from making or supporting a charge of discrimination.54
Other Employment Actions – No Evidence of Prima Facie Case
or Other Evidence of Retaliation
Plaintiff’s

claim

that

the

54

denial

of

a

pay

increase in

Plaintiff’s assertion that the questioning on June 27, 2006
was hostile is unsupported.
Plaintiff cited to the interview
transcript as a whole, but failed to cite to any specific questions
which she contends support her claim of hostility.
45

September

2002

was

motivated

by

retaliation

is

unsupported.

Plaintiff cited to her deposition testimony and Reed’s to support
her assertion that she had engaged in protected activity at the
time of this request.55

This evidence is simply too vague and

indefinite to support a reasonable inference that the plaintiff
engaged in any protected activity close in time to this request for
a pay raise.56

The evidence is also undisputed that Kling and the

plaintiff’s direct supervisors, Reed and Thompson, recommended and
supported the pay increase.

Thus, there is no evidence from which

a reasonable jury could infer retaliation, or a causal connection
between any protected activity and the denial of the pay increase.57
Plaintiff alleged that at the beginning of 2006, Reed and
Thompson removed a substantial number of duties from Gianelloni’s
job

description

and

added

them

to

the

plaintiff’s

position.

Plaintiff alleged that these actions justified a promotion and/or
additional compensation.

In April 2006 she was denied a request

for the upgrade of her position to Administrative Manager 5 and
denied a request for optional pay in October 2006.

Although the

55

Record document number 191-2, Plaintiff Memorandum in
Opposition to Defendants Motion for Summary Judgment, pp. 14-15;
record document number 201, Plaintiff Sur-reply Memorandum in
Opposition to Defendants Motion for Summary Judgment, p. 2.
56

This request was made approximately one month after the
plaintiff began her employment in the ORM.
57

There is also no evidence that the individual ultimately
responsible for the denial was aware of any protected activity on
the part of the plaintiff.
46

plaintiff asserted in her memorandum that these actions were
retaliatory, the arguments and evidence cited by the plaintiff are
directed to her claims of disparate treatment and hostile work
environment based on race.
these

employment

actions

Assuming the plaintiff is claiming
were

retaliatory,

her

claims

are

unsupported.
As already discussed in the section addressing the plaintiff’s
race discrimination claims, Reed with Thompson’s approval submitted
the

plaintiff’s

position

Administrative Manager 5.58

description

for

an

upgrade

to

Plaintiff did not cite to any specific

evidence which could support a reasonable inference that the Civil
Service denial of her upgrade to Administrative Manager 5 was
causally

connected

to

any

protected

activity.

Nor

did

the

plaintiff cite to any evidence to contradict the legitimate,
nonretaliatory reasons set forth in the June 29, 2006 Civil Service
decision

which

confirmed

the

plaintiff’s

position

as

an

Administrative Manager 4.
As to the plaintiff claims that the defendants did not grant
her

optional

pay

in

retaliation

for

protected

activity,

the

plaintiff also failed to come forward with evidence to support a
prima facie case.

The evidence relied on by the plaintiff shows

that her October request for optional pay was under review at the

58

Record document number 205, Uniform Pretrial Order, p. 9,
Established Fact Number 26.
47

time her termination was recommended.

Without any evidence that

the defendants actually denied this request, there is no basis to
conclude

that

the

employment action.

plaintiff

suffered

a

materially

adverse

Therefore, summary judgment is appropriate as

to the plaintiff’s retaliation claims related to her request to
upgrade her position to Administrative Manager 5 and her October
2006 request for optional pay.
March 22, 2006 One Day Suspension/Loss of Pay, Negative
Performance Reviews in March and September 2006, Denial of
Executive Staff Officer Position, and Termination Claims
All of the evidence related to the plaintiff’s protected
activity and these adverse employment actions has been carefully
reviewed.

Viewing this evidence as a whole and drawing all

reasonable inferences in favor of the plaintiff, summary judgment
is not appropriate as to the plaintiff’s claim that retaliation was
a motivating factor in these employment decisions.

The summary

judgment evidence supports the elements of a prima facie case as to
the

suspension,

negative

performance

reviews,

denial

of

the

Executive Staff Officer position and termination.
With the exception of the negative performance reviews in
March and September 2006, the defendants do not dispute that the
employment actions satisfy the standards of McCoy and/or Burlington
Northern, that is, they are ultimate adverse employment decisions,
or

actions

employee.

that
As

would
to

the

be

materially

negative
48

adverse

performance

to

a

reasonable

reviews,

it

is

uncontested that as a result the plaintiff was denied a merit pay
increase for the first time.
occurring

during

this

time

Given these facts, other events
period,

and

considering

all

the

circumstances a reasonable jury could find that these employment
actions would be materially adverse to a reasonable employee in the
plaintiff’s position.
Defendants do not dispute that the various Civil Service
appeals and grievances filed by the plaintiff throughout 2006, and
the complaints and charges to the EEOC in August 2005 and February
2006, were protected activity.
The third element of a prima facie case is the requirement of
a causal connection between the protected activity and the adverse
employment action.

It is well-established that close timing

between the protected activity and the adverse employment action
may provide the causal connection needed to make a prima facie
case, and that the timing of an employer’s actions can be a
significant factor in the analysis of a retaliation claim.
The summary judgment record in this case contains evidence of
close timing between protected activity and the alleged retaliatory
employment decisions.

For example, on February 17, 2006 the

plaintiff appealed the decision denying the upgrade of her position
to Administrative Manager 5.
complained

about

retaliation

In her appeal letter the plaintiff
and

race

discrimination

herself and other black employees in the agency.

49

against

On February 21,

2006 Graham sent an email to the other defendants notifying them of
the plaintiff’s appeal and that a copy of it would be sent.

The

next day, February 22, 2006, Thompson issued to the plaintiff the
Pre-deprivation Letter for disciplinary action – a reduction in pay
equal to a one day suspension.

The letter included the Letters of

Counseling and reprimand given to the plaintiff in May and December
of 2005, but the most recent event on which the discipline was
based was an email exchange between Reed and the plaintiff January
12-13, 2006.

Neither the Pre-deprivation/deprivation letters nor

any evidence presented by the defendants explains the timing of
their decision to take this disciplinary action.
On

February

28,

2006

the

plaintiff

submitted

a

supplemental/amended charge of discrimination and retaliation to
the EEOC and provided copies to the defendants.

Plaintiff was

informed by letter dated March 22, 2006 that the one day suspension
would be carried out, the plaintiff shortly thereafter filed an
appeal with Civil Service, which also included allegations of race
discrimination.

Two days later, on March 24 the plaintiff was

issued her performance review where she received for the first time
a

rating

of

“needs

improvement”

and

was

denied

a

merit

pay

increase. Plaintiff refused to sign the review, but wrote that the
review was based on discrimination, harassment and retaliation,
rather than her actual job performance.

The evidence shows that

the plaintiff directed an appeal/request for review of this rating

50

to Graham and the human resources department, and also provided the
information to the EEOC.

In September 2006 the plaintiff received

another “needs improvement” rating for her re-rating and again
denied any merit pay.

It was not until then the plaintiff was

informed that human resources did not conduct a review of her March
24, 2006 job rating.
Also during this relevant time period, the defendants began
taking action to create and fill the position of Executive Staff
Officer.

The process began in early January 2006 and the position

description was dated January 24, 2006.

Drawing all reasonable

inferences in plaintiff’s favor, the evidence related to the
filling of this position -- specifically the emails and other
documents

dated

in

February

and

March

2006,

the

deposition

testimony related to this evidence and the directive for plaintiff
to vacate her office in May 200659 –- is sufficient for a reasonable
jury to find that the reasons given by the defendants for selecting
Jones rather than the plaintiff are not credible.

This evidence

along with the evidence of timing is sufficient to create a jury
question regarding retaliation.
With regard to the plaintiff’s termination, the emails related

59

On May 10, 2006 the plaintiff filed a grievance claiming
improper procedures and unfair treatment regarding the filling of
the Executive Staff Officer position and stated that she would be
forwarding her grievance/information to the EEOC. A few days later
the plaintiff was told that she had to move to another office so
that Jones could occupy her office.
51

to the tire pump issue occurred November 2 through November 8,
2006.

Plaintiff filed this action alleging discrimination and

retaliation on November 16, 2006.

It was not until after this suit

was filed, on November 22, 2006, that the plaintiff was issued the
Letter of Instruction related to the tire pump emails.

The

plaintiff’s response to this letter resulted in Thompson sending
the November 27, 2006 letter recommending discipline in the form of
a one hour reduction in pay/suspension. On December 5, one week
after the plaintiff informed the defendants that she would file and
did file a grievance with Deputy Commissioner Jean Vandal, the
defendants decided to meet and discuss the grievance/disciplinary
action.60

As a result of this meeting the defendants further

investigated the tire pump emails.

This investigation led to in

the November 27 recommendation being changed to a recommendation
for termination.

Three weeks after the plaintiff filed this suit

she was issued the December 8 recommendation that her employment be
terminated.

Again,

neither

the

disciplinary

letters

or

declarations of the defendants address the close timing of these
events.
All of the above evidence related to these adverse employment
actions in 2006, when viewed as a whole, would be sufficient for a
reasonable jury to infer that retaliation was a motivating factor

60

See, e.g., record document number 191-6, Plaintiff Exhibit
3, Graham depo., depo. pp. 82-88.
52

in the plaintiff’s suspension, negative performance evaluations,
denial of the Executive Staff Officer position, and termination.
State Law Retaliation Claims
Summary judgment is appropriate as to the plaintiff’s claims
for retaliation under the LEDL, Louisiana’s whistleblower law, LSAR.S. 23:967, and workers’ compensation law, La.R.S. 23:1361(B).
A previously stated, the LEDL does not contain a provision
prohibiting

retaliation

in

discrimination based on race.

the

section

that

proscribes

Smith v. Parish of Washington,

supra. Therefore, under LSA-R.S. 23:332 the plaintiff has no claim
for retaliation.
Plaintiff’s basis for her claim under LSA-R.S. 23:967 is that
her employer retaliated against her for making complaints about
race discrimination, which is conduct that violates state law. But
under

the

state

statute,

unlike

the

federal

anti-retaliation

provisions, the plaintiff must prove that the workplace act or
practice that she complained about was an actual violation of state
law.

Because the plaintiff failed to come forward with sufficient

evidence to support her claim of race discrimination under the
LEDL, she cannot establish this essential element of her claim
under LSA-R.S. 23:967.
Defendants also moved for summary judgment as to any claim for
workers’

compensation

retaliation

under

LSA-R.S.

23:1361(B).

Plaintiff did not oppose the defendants’ motion on this ground.
53

Therefore, summary judgment will granted as to this claim.
Intentional Infliction of Emotional Distress Claim
Defendants moved for summary judgment as to the plaintiff’s
state law claim for intentional infliction of emotional distress.
Defendants

essentially

argued

that

the

discriminatory

and

retaliatory conduct alleged by the plaintiff does not constitute
extreme and outrageous conduct under the applicable law.

In

response the plaintiff argued that the actions of the individual
defendants constituted outrageous behavior.

Plaintiff, however,

did not cite any evidence to support this argument. Plaintiff only
cited evidence to support her claim that the emotional distress she
suffered was severe.
On summary judgment the plaintiff cannot rest on unsupported
assertions.

Plaintiff has the burden of designating the specific

evidence she contends supports her allegations that Kling, Goodson,
Graham, Thompson and Reed engaged in extreme and outrageous conduct
as the law defines it,61 conduct so outrageous in character and so
extreme in degree that it goes beyond all possible bounds of
decency and is regarded as utterly intolerable in a civilized

61

The district court must consider all the competent summary
judgment evidence that the nonmoving party properly cites in her
summary judgment briefing, but it has no duty to comb the entire
record for other evidence to see if somewhere in the record there
is some evidence that might show a dispute of material fact. See,
Rule 56 ©, Fed.R.Civ.P.; Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 124 (5th Cir. 2011).
54

community.62

Plaintiff’s failure to come forward with any evidence

to create a genuine dispute for trial on this essential element
requires that the defendants’ motion for summary judgment be
granted as to her claim for intentional infliction of emotional
distress.
Claims Against Kling
It

is

authority

undisputed
for

involvement

in

the
any

DOA

that

Kling’s

ended

alleged

occurred after that date.

in

tenure

March

unlawful

as

2005,

the
and

employment

appointing
he

had

actions

no

that

Since the only viable aspects of

plaintiff’s retaliation claims occurred after March 2005, summary
judgment must be granted in favor of Kling.
Conclusion
Defendants have shown that there is no genuine dispute for
trial on all the plaintiff’s claims except her Title VII and § 1981

62

As previously stated, Louisiana law sets a high threshold
for establishing a claim for intentional infliction of emotional
distress in a workplace environment.
Disciplinary action and
conflicts “in a pressure-packed workplace environment, although
calculated to cause some degree of mental anguish,” are not
ordinarily actionable. White, 585 So.2d at 1210. Assuming the
factual basis for this state law claim is the evidence supporting
the plaintiff’s discrimination and retaliation claims, the evidence
is not such that a reasonable jury could conclude that the alleged
employment actions taken against the plaintiff removed them from
“the realm of an ordinary employment dispute,” and were so
outrageous in character and so extreme in degree that they went
beyond all possible bounds of decency and regarded as utterly
intolerable in a civilized community. Deus, 15 F.3d at 514-15.
55

retaliation claim based on her March 2006 suspension, the negative
performance reviews in 2006, the May 2006 denial of the Executive
Staff Officer position, and her termination in December 2006.

And

these exceptions do not apply to defendant Kling.
This ruling should not be interpreted as determining the
plaintiff will or should prevail at trial on any of these four
aspects of her retaliation claim.

There is ample evidence from

which the jury could reasonably find that the defendants’ actions
which

form

the

basis

for

these

aspects

of

the

plaintiff’s

retaliation claim were not taken with a retaliatory motive, i.e.
they were taken for non-retaliatory reasons unaffected by her
participation in protected activities. This is so because the jury
will not be required to draw all reasonable inferences in the
plaintiff’s favor, as the court must do when ruling on a motion for
summary judgment; and the jury will be able to weigh the evidence
and make credibility determinations, which the court cannot do when
ruling on a motion for summary judgment.

In other words, just

because the defendants did not succeed in obtaining dismissal of
the entirety of the plaintiff’s retaliation claim by their motion
for summary judgment does not mean they will be unsuccessful in
obtaining dismissal of the rest of it trial.

Depending on how the

jury weighs the evidence and assesses the credibility of the
witness, it could reasonably return a verdict for the plaintiff or
the defendants.

56

Accordingly,
defendants

the

the

State

Motion
of

for

Summary

Louisiana,

Judgment

through

the

filed

by

Division

of

Administration, Office of Risk Management, Whitman Kling, Jr., the
former Appointing Authority for Division of Administration, Barbara
Goodson,

the

former

Appointing

Authority

for

Division

of

Administration, Anne Graham, the Division of Administration Human
Resources Director, Julian S. “Bud” Thompson, Jr., the State Risk
Director, and Patricia H. Reed, the State Risk Assistant Director,
is granted in part and denied in part, as follows:
1. Summary judgment is granted as to the plaintiff’s claims
against

all

defendants

alleging

race

discrimination/hostile

environment under Title VII, 42 U.S.C. § 1981 and LSA-R.S. 23:332.
2. Summary judgment is granted as to the plaintiff’s claims
against all defendants alleging retaliation under LSA-R.S. 23:332,
LSA-R.S. 23:967 and LSA-R.S. 23:1361(B).
3. Summary judgment is granted as to the plaintiff’s claim
against all defendants alleging intentional infliction of emotional
distress under Louisiana Civil Code Article 2315.
4.

Summary

judgment

is

granted

as

to

the

plaintiff’s

retaliation claims under Title VII and § 1981 against defendant
Kling.
5. Except for her claim against defendant Kling, summary
judgment is denied as to the plaintiff’s retaliation claims under
Title VII and § 1981, based on her March 2006 suspension, the

57

negative performance reviews in 2006, the May 2006 denial of the
Executive Staff Officer position, and her termination in December
2006.

Summary judgment is granted to the defendants as to all

other

employment

actions

which

the

plaintiff

alleged

were

retaliatory in violation of Title VII and § 1981.
Baton Rouge, Louisiana, September 12, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

58