Jordan v. Mitchell et al
Filing
46
RULING granting in part and denying in part Defendant Janet Napolitano's 43 Motion for Summary Judgment. IT IS HEREBY ORDERED that the Plaintiff's hostile work environment and constructive discharge claims are dismissed. Signed by Judge James J. Brady on 2/26/2013. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EDMOND D. JORDAN
CIVIL ACTION
VERSUS
NO. 10-746-JJB
MARY MITCHELL, ET AL
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment (Doc. 43) filed by Defendant
Janet Napolitano. The Motion is unopposed. Jurisdiction is based upon 28 U.S.C. §
1331. Oral argument is not necessary.
I.
Facts
The Plaintiff, Edmond Jordan, graduated from Southern University Law School in
1997 and began a private practice in 1998, which he has maintained since. Doc. 43-2,
at 3, 5–7.
During this time, the Plaintiff worked for various entities, including the
Louisiana Workers’ Compensation Corporation, Capital Area Legal Services, the
Louisiana Public Service Commission, and the Department of Environmental Quality
(“DEQ”). Id. at 4–5, 9–0. In October 2006, the Plaintiff began a two-year appointment
working in the Baton Rouge Office of Chief Counsel (“OCC”) for the Federal Emergency
Management Agency (“FEMA”), with Linda Davis as his supervisor. Id. at 11, 13, 15–
16. The Plaintiff worked fifteen to twenty hours per week in his private practice while
employed by FEMA.
Id. at 11–12. Within a few months of starting at FEMA, the
Plaintiff began receiving assignments from Jill Igert, one of the head attorneys in the
Baton Rouge and New Orleans area. Id. at 16–17. However, George Cotton was the
Baton Rouge office lead and the Plaintiff’s supervisor. Id. at 12, 15, 18. In March
2007, Cotton informed Igert he had issues with the Plaintiff’s attendance at work and his
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attendance to his job duties, specifically, that the Plaintiff was often not in his office and
could not be found within FEMA. Doc. 43-3, ¶ 4. The Plaintiff’s working relationship
with Cotton deteriorated due to the Plaintiff’s absenteeism and its effect on the office.
Id. Igert intervened and met with the Plaintiff and Cotton, counseling the Plaintiff on the
need to work a full forty hour week during normal business hours, the importance of
filing leave slips when going out of the office, and informing office personnel if leaving
his office other than for lunch or scheduled breaks. Id; Doc. 43-2, at 24. Mary Mitchell
served as Deputy Senior Counsel for the FEMA OCC from November 2007 to July
2009. Doc. 43-4, ¶ 5. When she became supervisor, she was aware of an ongoing
issue involving the Plaintiff’s attendance at work, and she observed that the Plaintiff was
often not in his office and could not be found within FEMA. Id.
Sometime in late October or early November 2007, Igert informed the attorneys
in the Baton Rouge office, the Plaintiff, Cotton, and Veronica Howard-Sizer, that they
needed to come to the New Orleans office at least two days a week. Doc. 43-3, ¶ 5. All
of the senior staff with whom the attorneys were working were located in New Orleans.
Id. Mitchell was in the main office in New Orleans frequently during the week. Doc. 434, ¶ 7. The news was not received well by any of the three attorneys working in Baton
Rouge, including the Plaintiff. Doc. 43-3, ¶ 5.
The Plaintiff alleges that Igert made a comment on a November 2007 conference
call suggesting people might want to get rid of anything, including papers and emails,
related to formaldehyde in FEMA trailers. Doc. 43-2, at 29–30. After the conference
call, the Plaintiff contacted Paul Conrad, the lead ethics advisor for the OCC. Id. at 30–
31. The Plaintiff believes Conrad reported his complaint to others, including Bob Parker
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and a supervisor of the field attorneys. Id. at 31. In early December 2007, Igert learned
from her supervisors about the complaint, but not who made the complaint. Doc. 43-3,
¶ 6. She thought the complaint could have come from one of the three attorneys in
Baton Rouge, because she knew they were upset with her. Id. Igert never told the
Plaintiff she knew he made a complaint against her or went to the ethics office, but his
conversations with her indicated to him that she knew.
Doc. 43-2, at 35–37.
Specifically, the Plaintiff told Igert he did not have anything against her, and she
responded by stating that is not what she was told. Id. at 37. The Plaintiff also believes
there was a conflict in Igert serving as chief of staff and senior counsel for the OCC. Id.
at 34, 37–39.
Mitchell could not monitor the comings and goings of personnel in Baton Rouge
from New Orleans and became concerned that she would not be able to correctly certify
time sheets. Doc. 43-4, ¶ 7. Mitchell consulted with Igert and they agreed the best way
for Mitchell to keep track of employees’ comings and goings was to have employees
check in with her or, in her absence, Shirley White, an administrative assistant in the
Baton Rouge office. Id. At no time did Igert prescribe a course of action for Mitchell
regarding the Plaintiff, nor did she tell Mitchell to treat the Plaintiff differently from any
other employee in the office for any reason. Id. at ¶ 9.
On December 10, 2007, Mitchell counseled the Plaintiff regarding the FEMA
absence and leave policy. Id. at ¶ 8. The counseling session arose after Jordan could
not be located for an extended period of time on December 6, 2007. Id. During the
session, Mitchell reminded the Plaintiff to let her or White know of any extended out of
office time and to submit a leave slip when the absence would exceed a normal lunch or
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break period. Id. Mitchell also advised the Plaintiff that all future annual leave requests
or leave without pay requests would have to be approved in advance. Id. At the time of
the counseling session, the Plaintiff had taken over forty hours in leave without pay. Id.
Prior to directing the Baton Rouge attorneys to travel to New Orleans on a
regular basis, Igert asked the Plaintiff to provide counsel for FEMA’s Environmental
Department and Mitigation Section. Doc. 43-3, at 4. She made this decision because
he had come to FEMA from DEQ and his specialized knowledge base and skills set as
a lawyer would best be used in the Environmental Department and Mitigation Section.
Id. The change in the nature of work that the Plaintiff was requested to do did not affect
any of the conditions of his employment. Id. He received the same pay, he was still
being required to provide legal analysis for FEMA projects, and he was still required to
travel to New Orleans two days per week. Id. The Plaintiff never introduced himself to
the head of the Environmental Section, never did any work, and thereby ignored Igert’s
directives. Id. Despite this, no adverse consequence resulted from his failure to devote
himself to the assigned sections. Id. Igert, who rarely went to the Baton Rouge office,
spied on the Plaintiff in his office one day in March 2008, looking over his shoulder
through a glass door as if she was trying to catch him doing something wrong. Doc. 432, at 49–50; Doc. 43-3, ¶ 10. Igert claims she was observing the Plaintiff and HowardSizer in the performance of their work duties, and observed that the Plaintiff was on the
internet through the day and did not appear to be working on FEMA projects. Doc. 433, ¶ 10. Igert confronted the Plaintiff about his usage, and the Plaintiff said he did not
have a project at the time. Id. No adverse action came to the Plaintiff as a result of
Igert’s observations that day. Id.
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In early 2007, Igert became aware that one of the other attorneys had a conflict
between her employment with FEMA and her work with a local school board. Id. at ¶
11. The conflict reached the OCC and created a problem for the agency. Id. Based on
this incident, Igert was specifically instructed to make sure than any employee with
outside employment disclosed all of his or her financial interests to the agency. Id. In
April of 2008, it became apparent that the Plaintiff had an outside private practice, which
he disclosed on his OGE Form 450, which was used by attorneys to report their
financial interests. Id. As a supervisor, Igert was required to review and sign the OGE
Form 450 to ensure that no cases or projects were assigned to the attorney that might
create a conflict or an appearance of a conflict. Id. The Plaintiff brought Igert his form
to sign, and Igert signed it so the form could be forwarded to the OCC. Id. It would not
be improper for a supervisor to access an employee’s OGE Form 450 if the motive is
proper, such as looking for potential conflicts. Doc. 43-2, at 47. The Plaintiff was not
demoted and did not suffer a reduction in pay from Igert inquiring about his OGE Form
450. Id. at 45–48.
The OCC was tasked with providing legal analysis and any proposed comments
to the Memorandum of Understanding (“MOU”) for Charity Hospital by the close of
business on Friday, April 18, 2008. Doc. 43-4, ¶ 11. On April 16, 2008, at 5:25 p.m.,
Mitchell forwarded the MOU to reviewers and asked that they submit their comments in
the draft with their initials by Friday morning. Id. At 8:58 a.m. on that Friday, Mitchell
sent Jordan an email asking if he had reviewed the information and was ready to
provide comments. Id. At 9:47 a.m., the Plaintiff sent Mitchell an email stating he did
not have any comments to provide. Id. Seven minutes later, Mitchell sent a follow-up
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email advising the Plaintiff he needed to provide her with a legal opinion, and gave him
specific points to address. Id. The Plaintiff did not respond to that email. Id. Mitchell
went by the Plaintiff’s office a couple of times after she sent the email and he was not in.
Id. At 1:18 p.m., Mitchell sent the Plaintiff another message asking him to call her on
his BlackBerry to let her know the status of his comments on the MOU. Id. She got no
response. Id. Mitchell emailed the Plaintiff again at 1:55 p.m. and asked him to call her.
Id. At that time, he called her and told her that he did not think he had to respond since
the deadline she gave him had passed. Id. The Plaintiff did not provide the requested
legal opinion or address the points Mitchell asked him to address. Id. at ¶ 12.
The Plaintiff was out of the office from 11:45 a.m. to approximately 2:00 p.m. for
an appointment at the Equal Rights Office (“ERO”). Doc. 43-2, at 63, 67. Mitchell
followed up with the ERO to confirm the Plaintiff was there, but did not inquire into the
nature of his visit, nor did she know at that time that the Plaintiff was preparing his own
Equal Employment Opportunity (“EEO”) claim. Doc. 43-4, ¶ 12. Following this series of
events, Mitchell counseled the Plaintiff on his unaccounted-for time and his absence
from the office in the middle of a deadline prior to completing an assignment.
Id.
Despite the counseling sessions, Mitchell continued to have problems with the Plaintiff’s
failure to inform her when he would be out of the office and his failure to submit leave
slips in a timely fashion, and his reluctance to travel to New Orleans twice a week. Id.
at ¶ 13. The Plaintiff would give Mitchell vague information about his schedule without
submitting a leave slip and then would accuse her of retaliation if she asked more
information about his whereabouts or his absence from the office. Id. At least some of
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this activity occurred in May 2008. Id. at ¶ 13, p. 16–18. The Plaintiff voluntarily left
FEMA in July 2008. Id. at ¶ 15. His last day at work was July 10, 2008. Id.
II.
Procedural History
On March 31, 2008, the Plaintiff initiated a formal complaint with FEMA. Doc. 435, ¶ 4.
On May 15, 2008 the Plaintiff filed a formal EEO complaint, and a letter
acknowledging the complaint was sent to the Plaintiff on June 2, 2008. Id. On June 13,
2008, FEMA sent an acceptance letter to the Plaintiff, identifying the basis for his
complaint as race (African-American), sex (male), and reprisal (no prior EEO activity).
Id. at ¶ 6.
The letter indicated the issues involved a hostile work environment
demonstrated by the following incidents:
January 15, 2008, Management would not allow him to continue
reviewing and approving lease terminations, and told him he had to
find work, which he believes is retaliation for his ethics complaint dated
November 30, 2007;
March 28, 2008, management “spied” on his work and did not spy on
his co-workers;
April 18, 2008, management violated Complainant’s privacy by
contacting the Equal Rights Officer (ERO) asking about his EEO
session with the ERO;
From April 18th through May 29, 2008, management made false
accusations against him about time and attendance issues, which
included extended/excessive lunch breaks and not following proper
leave procedures.
Id. On June 18, 2008, FEMA sent Plaintiff an amended letter adding the following
issues:
On June 18, 2008, you learned that management had been tracking
the time and attendance of the lawyers in the Baton Rouge Office
because they were concerned about a certain employee, whom you
believe is you.
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Between January and April 2007, management contacted the Ethics
Office to consult about the prohibition of employees having a private
practice, which you have.
Id. at ¶ 7. After the investigation and a decision by the Administrative Judge, a final
agency decision in favor of FEMA was issued on July 23, 2010. Id. at ¶ 9.
On July 10, 2009, the Plaintiff filed suit against the Defendants in this Court (“the
First Action”). The Plaintiff initially asserted that (1) Igert, Mitchell, and FEMA created a
hostile work environment and retaliated against him for filing a complaint against Igert in
violation of Title Forty-Two of the United States Code, Sections 1981 and 1983, and the
Whistleblower Protection Act, Title Forty-Two of the United States Code, Section
2302(b)(8) (“WPA”); and (2) Igert and Mitchell engaged in a civil conspiracy to interfere
with the Plaintiff’s civil rights in violation of Title Forty-Two of the United States Code,
Section 1985(3) (“Section 1985 claim”).
On March 4, 2010, this Court granted the Defendants’ Motion to Dismiss each of
Plaintiff’s claims in the First Action. Doc. 10-2. The Court found the Plaintiff’s hostile
work environment and retaliation claims were precluded because they were covered
exclusively by Title VII and, at the time, Plaintiff’s Equal Employment Opportunity
Commission (“EEOC”) charge was still under review. Id. As such, the Court concluded
these claims were premature. Id. The Court also found that the Plaintiff’s Section 1985
claim must be dismissed because it “ar[ose] out of facts that would give rise to a Title
VII employment discrimination claim” and was thus preempted, given that Title VII
represents the exclusive method of recovery in such situations. Id. Finally, the Court
dismissed Plaintiff’s WPA claim because the WPA does not provide for direct relief in
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federal court, and in order for a federal court to hear a WPA claim as an original matter,
it must be combined with a Title VII claim, which Plaintiff had not asserted. Id.
On November 10, 2010, the Plaintiff again filed suit against the Defendants.
Doc. 1.
The Plaintiff’s complaint in the Second Action was completely identical to the
complaint in the First Action except that the Plaintiff noted that the EEOC had dismissed
his charge. On May 25, 2011, the Defendants filed their Motion to Dismiss (Doc. 10),
on June 28, 2011, the Plaintiff filed a First Supplemental and Amended Complaint (Doc.
16) adding, among other things, a Title VII Claim, and on June 29, 2011, the
Defendants filed an Amended Motion to Dismiss (Doc. 17). The Court granted in part
the Motions to Dismiss as they related to the Plaintiffs Section 1985 civil conspiracy
claim, and denied in part the Motions to Dismiss as they related to the Plaintiff’s
remaining claims. Doc. 19.
On May 25, 2012, the Defendants filed another Motion to Dismiss (Doc. 29),
requesting dismissal of the individual defendants and the federal agency as improper
parties to the action. The Court issued an Order (Doc. 35) denying the Motion to
Dismiss as moot, relying on the Court’s recent Order (Doc. 34) granting the Plaintiff’s
Motion to substitute Janet Napolitano as a party defendant (Doc. 33). On July 18, 2012,
the Plaintiff filed a Second Supplemental and Amended Complaint (Doc. 38), adding
William Craig Fugate, head of FEMA, as a Defendant.
Napolitano now brings the
instant Motion for Summary Judgment (Doc. 43).
III.
Summary Judgment Standard
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact.” Fed. Rule Civ. P. 56(a). The party seeking
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summary judgment carries the burden of demonstrating that there is an absence of
evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). When the burden at trial rests on the non-moving party, the moving
party need only demonstrate that the record lacks sufficient evidentiary support for the
non-moving party’s case.
Id.
The moving party may do this by showing that the
evidence is insufficient to prove the existence of one or more essential elements of the
non-moving party’s case. Id. A party must support its summary judgment position by
“citing to particular parts of materials in the record” or “showing that the materials cited
do not establish the absence or presence of a genuine dispute.” Fed. Rule Civ. P.
56(c)(1).
Although the Court considers evidence in a light most favorable to the nonmoving party, the non-moving party must show that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). Conclusory allegations
and unsubstantiated assertions will not satisfy the non-moving party’s burden. Grimes
v. Tex. Dep’t of Mental Health, 102 F.3d 137, 139–40 (5th Cir. 1996).
Similarly,
“[u]nsworn pleadings, memoranda or the like are not, of course, competent summary
judgment evidence.” Larry v. White, 929 F.2d 206, 211 n.12 (5th Cir. 1991). If, once
the non-moving party has been given the opportunity to raise a genuine fact issue, no
reasonable juror could find for the non-moving party, summary judgment will be granted
for the moving party. Celotex, 477 U.S. at 322.
IV.
Analysis
Napolitano’s Motion makes four arguments as to why summary judgment is
appropriate: the Plaintiff cannot prevail on his race and gender hostile work environment
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claim because he cannot show that he was subjected to harassment based on his race
or gender; the Plaintiff cannot establish that his resignation was a constructive
discharge; the Plaintiff cannot establish that he suffered retaliation for engaging in
protected EEO activity; and the Plaintiff cannot prevail on his WPA claim because there
was never an appealable adverse agency action that would bring into play “mixed case”
standard of review.
A. Title VII
Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1) (2012). It is likewise unlawful for an
employer to discriminate against an individual who has “opposed” an unlawful
employment action or practice or who has “made a charge . . . or participated in any
manner in an investigation, proceeding, or hearing” related to unlawful employment
practices. 42 U.S.C. § 2000e-3(a) (2006). “A plaintiff may establish a Title VII violation
based on race discrimination creating a hostile work environment.” Ramsey v.
Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
Where an employment retaliation or discrimination claim is based on
circumstantial evidence, the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), is used. McCoy v. City of Shreveport, 492
F.3d 551, 556 (5th Cir. 2007). Under that framework, a plaintiff must first establish a
prima facie case of discrimination or retaliation to survive summary judgment. Id. at
556–57. Once the plaintiff has established a prima facie case, the burden then shifts to
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the employer to articulate some legitimate, non-discriminatory or non-retaliatory reason
for the decision. Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005).
Once the employer has provided its reasons, the employee can avoid summary
judgment by showing that the employer’s reasons are but a pretext for discrimination or
retaliation. Id. at 609.
B. Hostile Work Environment
In order to establish a Title VII violation based on race and/or gender
discrimination creating a hostile work environment, a plaintiff must show 1) he belongs
to a protected class; 2) he was subjected to unwelcome harassment; 3) the harassment
was based on his race and/or gender; 4) the harassment affected a term, condition, or
privilege of employment; and 5) the employer knew or should have known of the
harassment and failed to take remedial action. Id. at 611. “[W]hether an environment is
‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances,”
including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance.”
Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993). “[C]onduct must be extreme to amount to a
change in the terms and conditions of employment. . . .” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998). Offhand comments and “isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Id.
Napolitano argues the Plaintiff cannot establish a prima facie hostile work
environment claim based on the evidence. She argues, among other things, that the
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complained-of incidents were not harassment, and even if they were, the Plaintiff cannot
show the harassment was based on his race or gender. Without determining whether
the complained-of incidents were harassment, the Court finds the Plaintiff presents
insufficient evidence to prove the alleged harassment occurred due to his race or
gender.1 The only evidence presented is that Mary Mitchell “could have” had some
animus toward men, she “might have made comments about black men,” the actions
taken by Mitchell and Jill Igert were towards the Plaintiff and nobody else, and that
based on this, it was a “logical deduction” that the harassment was due to the Plaintiff’s
race and/or gender.
Doc. 43-2, at 56–58.
As this evidence is just the Plaintiff’s
subjective opinion, it is insufficient, and summary judgment will be granted on this claim.
Mitchell v. Snow, 326 Fed. Appx. 852, 857 (5th Cir. 2009); Smith v. Harvey, 265 Fed.
Appx. 197, 202 (5th Cir. 2008).
C. Constructive Discharge
Napolitano argues the Plaintiff cannot show any action by Napolitano constituted
a constructive discharge. A constructive discharge occurs when working conditions
become so intolerable that a reasonable person in the employee’s position would feel
compelled to resign. Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 480 (5th Cir.
2008).
Courts evaluate six factors to see whether a plaintiff has established a
constructive discharge claim: “(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) badgering,
harassment, or humiliation by the employer calculated to encourage the employee's
1
Napolitano addresses the Plaintiff’s hostile work environment claim as being based on gender and race. However,
the Court cannot find any reference to race in the Complaint (Doc. 1), the First Supplemental and Amended
Complaint (Doc. 16), or the Second Supplemental and Amended Complaint (Doc. 38), so only the gender claim is
before the Court. Even if the Plaintiff had made a claim that the harassment was due to his race, he presents
insufficient evidence to prove this element.
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resignation; or (6) offers of early retirement that would make the employee worse off
whether the offer was accepted or not.” Hunt v. Rapides Healthcare System, LLC, 277
F.3d 757, 771–72 (5th Cir. 2001).
The only factor relating to the evidence presented is the badgering and
harassment factor. The related evidence is: (1) the Plaintiff’s April 18th dispute with his
supervisor, Mary Mitchell, involving his providing a legal opinion on the MOU and failure
to respond to Mitchell; (2) the incidents between the Plaintiff and his supervisors
regarding absence and leave; (3) Mitchell’s inquiry to the ERO regarding Plaintiff’s
claims; (4) the reassignment of his area of legal work from lease reviews to
environmental by his supervisor, Jill Igert; (5) Igert’s spying on him one day in his office;
and (6) Igert’s inquiry into the Plaintiff’s OGE Form 450. No other factors are present.
Although there is evidence of the Plaintiff’s reassignment, the change did not affect any
condition of the Plaintiff’s employment, so it does not constitute a reassignment to
menial or degrading work. Even taken in the light most favorable to the Plaintiff, a
reasonable employee in his position would not have felt compelled to resign.
The
various incidents alleged do not reach the level required to establish a constructive
discharge claim. See Aryain, 534 F.3d 473, 481 (5th Cir. 2008) (finding less customer
interaction, an assignment to do tough work breaking down and moving clothing racks,
that only guys did at night, while the plaintiff’s supervisors watched her on the security
camera, sexually offense conduct by the plaintiff’s superior, denial of the plaintiff’s ability
to take breaks, the knocking of merchandise out of the plaintiff’s arms by a supervisor,
the supervisors’ looking at the plaintiff angrily, laughing at her, and talking negatively
about her, a supervisor making the plaintiff wait long periods of time to talk to her, and
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the plaintiff being left off of a work schedule did not reach the level required to establish
a constructive discharge claim); Brown v. Bunge Corp., 207 F.3d 776, 782–83 (5th Cir.
2000) (holding that a plaintiff who was demoted to a position with fewer job
responsibilities did not work in conditions so intolerable that a reasonable employee
would have felt compelled to resign); Stephens v. C.I.T. Group/Equip. Fin., Inc., 955
F.2d 1023, 1027–28 (5th Cir. 1992) (finding that the plaintiff’s “demotion, the continuing
limitations on his salary and responsibility, and [his boss’s] repeatedly asking him
whether he was going to quit his job, could make working conditions intolerable for a
reasonable person in [the plaintiff’s] position.”).
D. Retaliation
Napolitano argues any reprisal based on the Plaintiff’s reporting Igert to the
Agency’s ethics officer are governed by the WPA and is not subject to review in this
forum. She argues that any events prior to the date of the Plaintiff’s first contact with
the ERO, March 31, 2008, therefore cannot be considered as evidence for his retaliation
claim. Napolitano also argues the Plaintiff cannot show his post-April 18th incident
counseling was done in reprisal for engaging protected activity, since, his supervisor
was unaware at the time that the Plaintiff had engaged in protected activity, and
because the Plaintiff cannot prove a causal link between his protected activity and the
April 18th incident.
“A plaintiff establishes a prima facie case of retaliation by showing (i) he engaged
in a protected activity, (ii) an adverse employment action occurred, and (iii) there was a
causal link between the protected activity and the adverse employment action.”
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012). “If the plaintiff
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successfully presents a prima facie case, the burden shifts to the employer to provide a
legitimate, non-retaliatory reason for the adverse employment action.”
Id.
“If the
defendant presents evidence that supports that it acted properly, the fact-finder must
decide whether retaliation was the but-for cause for the employer’s action.” Id.
Napolitano’s argument that the Plaintiff’s reporting Igert to the Agency’s ethics
officer is governed by the WPA and is not subject to review in this forum is conclusory.
As this conclusion is a foundation for Napolitano’s argument, and as she fails to address
the Plaintiff’s inclusion of a Title VII claim in his First Supplemental and Amended
Complaint (Doc. 16), she fails to carry her burden.
E. WPA Claim
Napolitano argues the Court does not have jurisdiction over the Plaintiff’s WPA
claim. She cites Cruz v. Dept. of Navy, 934 F.2d 1240, 1244–46 (Fed. Cir. 1991), for
this assertion. Cruz is insufficient to support her argument, and Napolitano fails to
address the Plaintiff’s inclusion of a Title VII claim in his First Supplemental and
Amended Complaint (Doc. 16), so she fails to satisfy her burden.
V.
Conclusion
Accordingly, Defendant Janet Napolitano’s Motion for Summary Judgment (Doc.
43) is GRANTED IN PART and DENIED IN PART.
IT IS HEREBY ORDERED that the Plaintiff’s hostile work environment and
constructive discharge claims are dismissed.
Signed in Baton Rouge, Louisiana, on February 26, 2013.
JAMES J. BRADY, DISTRICT JUDGE
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