McKenna v. Summit Consulting, Inc. of Louisiana et al

Filing 26

RULING granting 22 Defts Motion for Summary Judgment. All of pltfs claims are, therefore, dismissed. Signed by Judge James J. Brady on 6/27/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LEIZA S. MCKENNA
CIVIL ACTION
VERSUS
NO. 10-204-JJB-SCR
SUMMIT CONSULTING, INC., ET AL

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendants’ Motion (doc. 22) for
Summary Judgment.

Plaintiff has filed an opposition (doc. 24) to which

Defendants have filed a reply (doc. 25). This Court’s jurisdiction exists pursuant
to 28 U.S.C. § 1331.

Oral argument is not necessary. For the reasons stated

herein, the Court GRANTS Defendants’ motion.
Background
I. Facts
This case arises out of the allegedly discriminatory and retaliatory
treatment of Plaintiff Leiza S. McKenna (“McKenna”), an African-American
woman, by her employer. The following facts are undisputed.
In April 2007, McKenna began working as a Loss Control Consultant
(“Consultant”) for Defendant Summit Consulting, Inc. (“Summit”) (doc. 22, ex. A).
As a Consultant, McKenna assisted clients in evaluating and minimizing the risks
associated with their businesses. McKenna worked from home and was required
to visit clients at their places of business and to prepare written reports
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memorializing her visits (doc. 22, ex. A).

Summit assigned McKenna to its

Southwest Region where she served clients in and around the New Orleans area
(doc. 22, ex. A).
In 2008, McKenna and other Summit Consultants began to have problems
with Summit’s Loss Control Manager for the Southwest Region, Paul Marks.1 On
November 15, 2008, Summit’s personnel managers and a handful of employees
met to discuss complaints about Marks.

At the meeting, three of Summit’s

Consultants stated that they were generally frustrated with Marks’ management
style and that Marks often made women feel excluded.
In November 2008, McKenna gave birth and went on maternity leave, from
which she returned in February 2009 (doc. 22, ex. C). While McKenna was on
maternity leave, Summit underwent a company-wide territorial reorganization—
that is, it shuffled and reassigned many of its existing accounts among its
Consultants (doc. 22, ex. C).

As a result, Marks reassigned one-third of

McKenna’s accounts to other employees, however, she suffered no change in
title or diminution in salary (doc. 22, ex. C). In addition, because McKenna’s New
Orleans clients were now located in closer proximity to one another, Marks
increased the number of weekly visits McKenna was required to take from ten to
fifteen (doc. 22, ex. E). And as a result of the consolidation, McKenna was

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Specifically, McKenna alleges that Marks asked why she would return to work after having a baby and
suggested that his wife would not return to work once she had a baby (doc. 22, ex. C).

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unable to meet her monthly mileage requirements, and Summit subsequently
confiscated her company vehicle (doc. 22, ex. E).
In early 2009, McKenna met with Marks for her 2008 performance review.
Marks stated that McKenna had failed to meet many of the company’s objectives,
namely, that she failed to visit the minimum number of clients per week and failed
to timely complete new account data surveys (doc. 22, ex. L). As a result, Marks
rated McKenna as barely more than “minimally effective.” In addition, on April 7,
2009, Jonathan Baughman (“Baughman”), Summit’s Loss Control Supervisor,
also notified McKenna that she had continually failed to meet with the minimum
number of clients per week and had not timely completed her data surveys (doc.
22, ex. R). Around that time, Baughman also began to confront McKenna about
allegedly inconsequential entries on her expense reports (doc. 24, ex. F).
McKenna thereafter filed a complaint against Marks and Baughman.
Summit’s Regional Vice President, Hank Chiles (“Chiles”) made clear that Marks
and Baughman could not require McKenna to meet with more clients than set-out
in Summit’s objectives, notwithstanding that her clients were clustered in a small
area (doc. 22, ex. C).

However, Chiles also informed McKenna that simply

meeting Summit’s minimum objectives would be reflected negatively in her
performance reviews (doc. 22, ex. T).
Finally, on October 18, 2009, Summit announced that it would be
terminating employees as part of a company-wide reduction.

Due to financial

concerns, Summit decided to shift its focus away from providing loss control
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services to other services requiring fewer Consultants (doc. 22, ex. A).

On

December 18, 2009, Summit terminated McKenna and another female
Consultant—the two lowest-scoring Consultants in the New Orleans area (doc.
22, ex. C). In all, Summit terminated seventy-two of its Consultants (doc. 22, ex.
C). Since that time her accounts have been transferred to Consultants that were
retained and her position has not been refilled (doc. 22, ex. A).
II. Procedural History
On February 10, 2010, Plaintiff filed suit against Defendants Liberty
Mutual, Inc. (“Liberty Mutual”), Summit, Marks and Baughman (doc. 1). Plaintiff
asserts that (1) Summit and Liberty Mutual discriminated against her on the basis
of her race and gender; (2) Summit and Liberty Mutual retaliated against her for
taking maternity leave; and (3) Marks and Baughman intentionally caused
Plaintiff to suffer emotional distress.
On April 29, 2011, Defendants filed their Motion (doc. 22) for Summary
Judgment. Defendants assert that Plaintiff cannot establish a prima facie case of
gender or race discrimination or that Defendants’ conduct was sufficiently
extreme and outrageous. Defendants also assert that Plaintiff was terminated
because of her poor performance, not because she took maternity leave.
On May 20, 2011, Plaintiff filed her opposition (doc. 24). In her opposition,
Plaintiff addresses only her intentional infliction of emotional distress and
maternity leave retaliation claims.

Plaintiff asserts that she has adequately

demonstrated that she was terminated, at least in part, due to her taking
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maternity leave. However, Plaintiff fails to address Defendants’ assertion that
her claims for race and gender discrimination should be dismissed on summary
judgment.
Standard of Review
A motion for summary judgment should be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).
If the dispositive issue is one on which the nonmovant will bear the burden of
proof at trial, the moving party satisfies its burden by pointing out that there is
insufficient proof concerning an essential element of the nonmovant’s claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the issue is one in which
the movant bears the burden of proof at trial, the movant must demonstrate the
absence of material facts and entitlement to judgment as a matter of law. Id. at
321.

If the movant does so, in order to survive the motion for summary

judgment, the nonmovant must show that a genuine issue of material fact
remains for the factfinder to resolve. Id. at 323. In either case, the court must
construe all facts in the light most favorable to the nonmovant and draw all
reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). A “genuine issue of material fact” exists only when a
reasonable fact-finder could return a verdict in the nonmovant’s favor. Id. at 248.
Discussion
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I. Race Discrimination Claim
Plaintiff asserts that Summit discriminated against her based on her race
(doc. 1). Plaintiff cites the following acts of differing treatment: (1) she had to
attend an irregularly scheduled performance evaluation despite the fact that other
Consultants who received low ratings only had to attend their regularly scheduled
monthly meetings; (2) Summit subjected her expense reports to greater scrutiny
than other employees’; (3) Summit confiscated her company vehicle for falling
short of her mileage requirements while another Caucasian employee was
permitted to visit a customer in Arkansas to meet her requirements; and (4)
terminated her despite that she had met the company’s objectives.
Defendants assert that, other than her termination, the conduct of which
Plaintiff complains cannot support a claim for race discrimination because
complained-of acts were not “adverse employment decisions” (doc. 22).
Defendants also assert that Plaintiff has not put forth facts suggesting that the
decision to terminate her was motivated by her race.
In order to file a discrimination claim under Title VII, the plaintiff must timely
file a charge alleging discrimination with the EEOC. Pacheco v. Mineta, 448 F.
3d 783, 788 n. 6 (5th Cir. 2006). However, in Louisiana, a plaintiff who fails to file
a discrimination charge with the EEOC may still file a discrimination claim under
state law. Moreover, state law discrimination claims are analyzed under the
same framework as discrimination claims arising under federal law, namely, the

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McDonnell Douglas burden-shifting approach.

McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973).
Under the McDonnell Douglas approach, the plaintiff must first set-out a
prima facie case of discrimination. Id. To do so, the plaintiff must establish that
(1) she is a member of protected class; (2) she was qualified for her position; (3)
she suffered adverse employment action; and (4) the employer intentionally
treated others outside the protected class more favorably.

Nichols v. Loral

Vaught Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996). The United States Court of
Appeals for the Fifth Circuit has interpreted “adverse employment action” to
include “only ultimate employment decisions such as hiring, granting leave,
discharging, promoting, or compensating.” McCoy v. City of Shreveport, 492
F.3d 551, 559 (5th Cir. 2007).
To meet this burden, the evidence must be such that a reasonable fact
finder could conclude that the employer consciously took the plaintiff’s race into
account in determining which employees to subject to adverse employment
action. Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir.
1991).

However, a plaintiff cannot merely rely on conclusory allegations of

discrimination.

Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir.

2000).
The Court finds that there are no genuine issues of material fact. As a
threshold matter, only Defendants’ decision to terminate McKenna is “an ultimate
employment decision” which may give rise to a discrimination claim. McCoy, 492
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F.3d at 559. Though McKenna may have been treated differently by having to
attend an additional performance review or by being scrutinized more heavily in
regards to her expense reports, these are plainly not “ultimate employment
decisions” akin to hiring and firing.

Multiple times during 2009, Marks and

Baughman criticized McKenna’s performance—whether for failing to meet with
the preferred number of clients per week or for failing to timely submit data
surveys. In fact, for the 2008 year, Marks rated her performance as barely more
than “minimally effective,” placing her in the bottom two New Orleans area
Consultants (doc. 22, L). Finally, on October 18, 2009, Summit announced that it
would be terminating McKenna and the lowest-rated Consultant as part of a
company-wide reduction (doc. 22, ex. A).
The Court also finds that Defendants are entitled to judgment as a matter
of law. A plaintiff simply cannot rely on conclusory allegations of discrimination in
order to survive a motion to dismiss. Vance, 209 F.3d at 444. Plaintiff has
produced absolutely no evidence suggesting that Summitt’s decision to fire her
was motivated by racial animus. Instead, the evidence suggests that McKenna
was terminated for her failure to meet or just barely meeting the company’s
objectives. Summit simply terminated the two lowest-scoring Consultants in their
New Orleans office, McKenna and another Caucasian, female.
II. Gender Discrimination Claim
Plaintiff asserts that Summit discriminated against her on account of her
gender (doc. 1). Plaintiff alleges that (1) Marks questioned her as to why she
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would return to work after having a baby and suggested that his wife would not
do so; and (2) Summit terminated her on account of her gender. Defendants
assert that Marks’ statements cannot support a claim for gender discrimination,
and that Plaintiff has provided no evidence suggesting that Summit’s decision to
terminate her was motivated by her gender (doc. 22).
Title VII makes it unlawful for an employer to discriminate against an
individual because of his or her gender. 42 U.S.C. § 2000e-2(a). In addition,
Title VII makes it unlawful for an employer to discriminate against an individual
on the basis of conditions related to the individual’s gender, such as pregnancy.
42 U.S.C. 2000e(k). The Fifth Circuit uses the McDonnell Douglas standard for
claims of gender discrimination. Bouvier v. Northrup Grumman Ship Sys. Inc.,
350 F. App’x 917, 921 (5th Cir. 2009). That is, to establish a prima facie case of
gender discrimination, the plaintiff must establish that (1) she is a member of
protected class, (2) she was qualified for her position, (3) she suffered adverse
employment action, and (4) the employer intentionally treated others outside the
protected class more favorably. Id.
The Court finds that there are no genuine issues of material fact. Again,
only Defendants’ decision to terminate McKenna is “an ultimate employment
decision” which may give rise to a discrimination claim. McCoy, 492 F.3d at 559.
McKenna was one of seventy-two employees, including another female
Consultant serving New Orleans, who were terminated in the company-wide
reduction.
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The Court also finds that Defendants are entitled to judgment as a matter
of law.

A plaintiff simply cannot rely on conclusory allegations of gender

discrimination in order to survive a motion for summary judgment. Vance, 209
F.3d at 444.

Plaintiff has produced absolutely no evidence suggesting that

Summitt treated its female employees, or McKenna, less favorably than its male
employees or that the decision to terminate McKenna was motivated by her
gender or her pregnancy.

Again, the evidence suggests that McKenna was

terminated for her failure to meet or just barely meeting the company’s
objectives. Indeed, Summit terminated the two lowest-scoring Consultants in
their New Orleans office.
III. Family Medical Leave Act Claim
Plaintiff asserts that Summit retaliated against her by subjecting her to
greater scrutiny when she returned from maternity leave (doc. 1).

Plaintiff

alleges that Summit did so by holding her to higher standards than the rest of its
Consultants.

Defendant asserts that Plaintiff was scrutinized because of her

failure to meet company objectives and terminated due to her poor performance
in the prior year (doc. 22).
Under the Family Medical Leave Act (“FMLA”), an employee is entitled to
twelve weeks of leave during any twelve-month period if a serious health
condition makes the employee unable to perform the typical functions of her
position.

29 U.S.C. § 2612(a)(1)(D).

To establish a prima facie case of

retaliation under FMLA, the plaintiff must show that (1) she is protected under
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FMLA; (2) she suffered an adverse employment decision; and (3) she was
treated less favorably than employees who had not requested FMLA leave or the
adverse decision was made because of her taking leave. Comeaux-Bisor v.
YMCA of Greater Houston, 290 F. App’x 722, 724-25 (5th Cir. 2008). If the
plaintiff establishes a prima facie case of FMLA retaliation, the burden shifts to
the employer to provide a legitimate nondiscriminatory or non-retaliatory reason
for the termination. Id. If the employer does so, the plaintiff must show by a
preponderance of the evidence that the employer's stated justification is a pretext
for discrimination or retaliation. Id.
The Court finds that there are no genuine issues of material fact. Again,
only Defendants’ decision to terminate McKenna is “an ultimate employment
decision” which may give rise to a retaliation claim. McCoy, 492 F.3d at 559.
Prior to being terminated Marks and Baughman each cited McKenna for failing to
visit the minimum number of clients per week and failing to timely complete new
account data surveys (doc. 22, ex. L). When she complained she was being held
to a different standard, Chiles informed Marks and Baughman that she could not
be compelled to meet with more clients than required by Summit’s company-wide
objections, but that her meeting only the minimum number of clients would be
reflected negatively in her performance reviews. Indeed, Summit terminated its
two lowest-scoring Consultants to the New Orleans area, including McKenna.
McKenna was one of seventy-two employees who were terminated in the
company-wide reduction.
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The Court also finds that Defendants are entitled to judgment as a matter
of law. Plaintiff has, at best, arguably established a prima facie case of FMLA
retaliation. She was entitled to, and took, leave under FMLA because of her
pregnancy, and she was thereafter treated less favorably than at least some of
Summit’s employees who did not take FMLA leave. However, Defendants have
set forth a legitimate and non-discriminatory justification for their decision to
terminate Plaintiff. Due to financial problems, Summit decided to shift away from
services that required a large number of Consultants and underwent a companywide reduction in workforce (doc. 22, ex. E). Summit terminated over seventytwo Consultants in its Southwest Region (doc. 22, ex. E). Plaintiff was among
the worst-performing Consultants at Summit prior to her termination (doc. 22, ex.
E). She was cited numerous times for failing to meet or barely meeting the
company’s objectives (doc. 22, ex. E). In addition, the Court finds that Plaintiff
has not offered evidence upon which a reasonable jury could infer that
Defendants’ stated justification was simply a pretext.
IV. Intentional Infliction of Emotional Distress Claim
Plaintiff asserts that Defendants’ conduct gives rise to a claim for
intentional infliction of emotional distress. Plaintiff asserts that Defendants held
her to a higher level of scrutiny than her co-workers, despite that she had just
given birth, and that this caused her significant emotional distress (doc. 24).
Defendants assert that none of the cited conduct is sufficiently severe to support
a claim for intentional infliction of emotional distress (doc. 22).
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Under Louisiana law, to establish a claim for intentional infliction of
emotional distress, a plaintiff must show that (1) the defendant’s conduct was
extreme and outrageous; (2) she suffered severe emotional distress; (3) the
defendant intended to cause severe emotional distress or the plaintiff’s severe
emotional distress was substantially certain to result from the defendant’s
conduct.

White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).

The

Louisiana Supreme Court has stated that “[t]he conduct must be so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized
society” and does not include mere “indignities,” “annoyances,” or “petty
oppressions.” Id.
The Court finds that there are no genuine issues of material fact. Upon
returning from maternity leave, Defendants required Plaintiff to attend an
irregularly scheduled performance review (doc. 22, ex. C). At the review, and at
times thereafter, Defendants notified Plaintiff that she had not been meeting with
the minimum number of clients or timely filling out her account data surveys
(doc. 22, ex. C). However, Chiles assured her she could not be expected to
surpass Summit’s objectives, but that her failure to do so would be reflected in
her performance reviews (doc. 22, ex. E). In addition, Defendants subjected
Plaintiff’s expense reports to greater scrutiny than other Consultants and
ultimately terminated Plaintiff as part of a company-wide reduction in force.

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The Court also finds that Defendants are entitled to judgment as a matter
of law. The cited conduct is not sufficiently “extreme or outrageous” to support a
claim for intentional infliction of emotional distress.

Aside from terminating

Plaintiff, Defendants’ conduct is more akin to “indignities,” “annoyances,” or “petty
oppressions” which are not sufficiently severe.

Id. at 1209.

And though

termination arguably qualifies as extreme behavior, Plaintiff has offered no
evidence suggesting that Defendants’ terminated her with the intent to cause
distress or with substantial certainty that it was to occur.
CONCLUSION
Accordingly, the Court hereby GRANTS Defendants’ Motion (doc. 22) for
Summary Judgment. All of Plaintiff’s claims are, therefore, dismissed.
Signed in Baton Rouge, Louisiana this 27th day of June, 2011.

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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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