Gordon v. State of Louisiana, through the Department of Veteran Affairs et al

Filing 24

RULING granting the Defts 7 and 9 Motions for Partial Summary Judgment. Pltfs claims are dismissed with prejudice. Signed by Judge James J. Brady on 4/18/2013. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

STARLETTE GORDON
CIVIL ACTION
VERSUS
NUMBER 11-770-JJB-SCR
THE STATE OF LOUISIANA, THROUGH
THE DEPARTMENT OF VETERANS
AFFAIRS AND JON SALTER

RULING
This matter is before the Court on the motions for partial
summary judgment filed by the Defendants, State of Louisiana
through

Department

(“Defendants”).1

of

Veterans

Plaintiff

Affairs

Starlette

“Plaintiff”) has opposed the motions.2

and

Gordon

Jon

Salter

(“Gordon”

or

For the reasons which

follow, the Court finds that the Defendants’ motions for partial
summary judgment should be granted.
I.

Factual Background
Plaintiff is an African-American female who was employed by

the Department of Veterans Affairs and assigned to the Southeast
Louisiana War Veterans Home (“the Home”) in the classification of
Chief Financial Officer (“CFO”).

1

Rec. Doc. Nos. 7 & 9.

2

Rec. Doc. No. 19.

Doc#48088

She contends that throughout her

employment with Defendants, she was subjected to a hostile work
environment, discrimination, and retaliation based on her race.
Plaintiff filed several EEOC charges and often complained at work
about

the

alleged

unlawful

treatment

she

believed

she

was

receiving.
The Defendants claim Gordon was a problem employee who was
ultimately issued a Notice of Termination letter on September 16,
2009 for the following reasons: failure to comply with HIPAA laws
and LDVA regulations; inattention to detail resulting in the risk
of loss in revenue; failure to effectively manage the Fiscal
Department; and creation of a hostile work environment as fully
detailed in the notice. The Defendants contend Plaintiff was often
disciplined and ultimately terminated for legitimate business
reasons and that the same decision would have been made regardless
of Plaintiff’s race.

Further, Defendants show that they replaced

Plaintiff with an employee of the same race.
Gordon

appealed

her

termination

to

the

Civil

Service

Commission and a settlement was reached on November 17, 2009.
Plaintiff then filed this lawsuit on September 16, 2011, alleging
race discrimination, harassment and retaliation.

The Defendants

removed the suit to federal court on November 14, 2011.
II.

Law and Analysis
A.

Summary Judgment Standard

Summary judgment should be granted if the record, taken as a
Doc#48088

2

whole, "together with the affidavits, if any, 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."3

The Supreme Court has

interpreted the plain language of Rule 56(c) to mandate "the entry
of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial."4

A party moving for summary judgment "must 'demonstrate

the absence of a genuine issue of material fact,' but need not
negate the elements of the nonmovant's case."5

If the moving party

"fails to meet this initial burden, the motion must be denied,
regardless of the nonmovant's response."6
If the moving party meets this burden, Rule 56 (c) requires
the nonmovant to go beyond the pleadings and show by affidavits,
depositions, answers to interrogatories, admissions on file, or
other admissible evidence that specific facts exist over which

3

Fed. R. Civ. P. 56(c); New York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336,
338 (5th Cir. 1996); Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996).
4

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). See also Gunaca v. Texas, 65 F.3d 467, 469 (5th Cir. 1995).
5

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting
Celotex, 477 U.S. at 323-25, 106 S.Ct. at 2552).
6

Id. at 1075.

Doc#48088

3

there is a genuine issue for trial.7
not

be

satisfied

by

conclusory

The nonmovant's burden may

allegations,

unsubstantiated

assertions, metaphysical doubt as to the facts, or a scintilla of
evidence.8

Factual controversies are to be resolved in favor of

the nonmovant, "but only when there is an actual controversy, that
is, when both parties have submitted evidence of contradictory
facts."9

The Court will not, "in the absence of any proof, assume

that the nonmoving party could or would prove the necessary
facts."10

Unless there is sufficient evidence for a jury to return

a verdict in the nonmovant's favor, there is no genuine issue for
trial.11
B.

Motion for Partial Summary Judgment on EEOC Charge No.
461-2008-01797

Defendants

move

for

partial

summary

judgment

on

any

allegations set forth in EEOC Charge No. 461-2008-01797 arguing
these claims are prescribed because Plaintiff failed to file suit
on these claims within ninety days of receiving her Notice of Right
to Sue letter.

It appears Plaintiff does not dispute this fact

7

Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996).

8

Little, 37 F.3d at 1075; Wallace, 80 F.3d at 1047.

9

Wallace, 80 F.3d at 1048 (quoting Little, 37 F.3d at 1075). See also S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996).
10

McCallum Highlands v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir.
1995), as revised on denial of rehearing, 70 F.3d 26 (5th Cir. 1995).
11

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986).
Doc#48088

4

because her opposition states that this suit involves her last two
EEOC Charges.12

To the extent any of these allegations are alleged

in the present lawsuit, summary judgment is granted on these claims
and they are dismissed with prejudice.
C.

Partial Summary Judgment on Remaining EEOC Charges

Plaintiff claims Defendants have violated Title VII of the
Civil Rights Act of 196413 by subjecting her to race discrimination,
harassment based on race, and retaliation.

Plaintiff also asserts

a claim of emotional distress under Louisiana law.
1.
A

claim

Race Discrimination
of

race

discrimination

is

analyzed

using

the

traditional burden-shifting rules of McDonnell Douglas Corp. v.
Green.14 To survive summary judgment in a race discrimination case,
a plaintiff must first establish a prima facie case showing she (1)
is a member of a protected class; (2) was qualified for the
position held; (3) was subject to an adverse employment action, and
(4) was “treated differently from others similarly situated.”15 The
plaintiff has the burden of demonstrating that “the employment
actions at issue were taken under nearly identical circumstances.”16
12

Rec. Doc. No. 19, p. 1.

13

42 U.S.C. § 2000e, et. seq.

14

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

15

Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005).

16

Turner v. Kan. City S. Ry., 675 F.3d 887, 893 (5th Cir. 2012).

Doc#48088

5

Also, “[t]he 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.”17
Plaintiff contends she was treated less favorably than two
white comparators.

First, she argues her supervisor Paul Heistand

is similarly situated and suffered less harsh discipline under
similar circumstances.

Second, she contends her leave slips were

treated less favorably than those of white co-worker Sonya Aucoin.
a.

Paul Heistand

The Defendants argue that Plaintiff cannot make a prima facie
case for race discrimination because Paul Heistand is not a
similarly situated employee and the violations committed are in no
way comparable.

Plaintiff contends that she and Heistand are

similarly situated since they were both management employees and
both ultimately answerable to the same person, Jon Salter.
The Court finds that Heistand is not a valid comparator since
he was Plaintiff’s supervisor.
Heistand’s

supervisor,

and

Simply because Jon Salter was

Salter

ultimately

supervised

and

terminated the Plaintiff, does not equate to Plaintiff and Heistand
sharing the same supervisor.

17

Further, the record is clear that

Id.

Doc#48088

6

Heistand and Plaintiff did not have the same job duties. Plaintiff
was the CFO of the Home responsible for the Fiscal Department only
while Heistand supervised five department heads at the Home.
Salter was only supervising Plaintiff after she filed a grievance
and a criminal complaint against Heistand. Salter removed her from
Heistand’s supervision to avoid further allegations.

In no way

were Plaintiff and Heistand on the same employment level simply
because, in the end, Salter supervised Plaintiff.

Thus, Plaintiff

has failed to present summary judgment evidence that she and
Heistand “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.”
The

record

also

indicates

the

violations

committed

Plaintiff and Heistand were not of a similar nature.

by

While the

Plaintiff was repeatedly counseled for various work performance
deficiencies which included speaking negatively and critically of
her co-workers, Heistand was disciplined only once for one isolated
incident of allegedly using a curse word in his dealings with
Plaintiff.

As the Fifth Circuit has stated, “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.”18

Plaintiff

has failed to present summary judgment evidence that the violations

18

Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 260 (5th Cir. 2001).

Doc#48088

7

at issue with respect to Heistand were “nearly identical.”
b.

Sonya Aucoin

Plaintiff also alleges she was required to provide a doctor’s
excuse for sick leave on one occasion while others similarly
situated did not, and that she was required to have her leave slips
signed by her supervisor while physically present although others
were allowed to submit leave slips to the supervisor’s mailbox.
Plaintiff’s

own

deposition

testimony

belies

her

first

allegation. She testified that she knew of no employees other than
her own subordinates allowed to submit doctor’s excuses by copy or
fax.19

Plaintiff has failed to create a genuine issue of material

fact on this point.
Plaintiff states in her opposition that she is “personally
aware that Ms. Sandra Aucoin, a White department head, left leave
slips

in

Mr.

Plaintiff’s

Heistand’s

deposition

mailbox

testimony

for
and

approval.”20
the

pictures

However,
taken

by

Plaintiff and submitted as evidence reveal that she only saw
approved leave slips placed in Aucoin’s mailbox, not that Aucoin
left unapproved requests in Heistand’s mailbox.

There is no

summary judgment evidence, other than Plaintiff’s assumption, that
this employee or any others were allowed to submit leave slips to
Heistand’s mailbox.

Furthermore, Sonya Aucoin averred in her

19

Rec. Doc. No. 9-28, p. 62.

20

Rec. Doc. No. 19, p. 3, citing Plaintiff’s Affidavit, Exhibit 1, as evidence.

Doc#48088

8

Affidavit that she has never submitted a leave slip to Heistand’s
mailbox.21

This does not create a genuine issue of material fact,

and Plaintiff has failed to present a prima facie case as to this
employee as well.
c.

Legitimate Non-Discriminatory Reasons

The Defendants contend that even if Plaintiff could establish
a prima facie case of race discrimination, Plaintiff cannot rebut
the evidence that Defendants had legitimate, non-discriminatory
reasons for the disciplinary actions taken against her.
Plaintiff

clearly

disputes

the

work

performance

While

deficiencies

alleged by the Defendants, she fails to create a genuine issue of
material

fact.

The

record

is

clear

that

the

Plaintiff

was

counseled repeatedly for numerous work performance and attitude
issues

which

included

untimely

processing

of

payments

and

paperwork, failing to return phone calls, exhibiting poor judgment
when discussing work matters, lack of communication with her staff,
creating a negative work environment, unscheduled and unapproved
absences, and improper internet usage during work hours.
Plaintiff has failed to produce summary judgment evidence such
that a reasonable fact finder could conclude that the Defendants’
proffered reasons are false or a pretext for race discrimination.
Furthermore,

21

“unsupported

disagreements

Rec. Doc. No. 9-4.

Doc#48088

9

with

an

employer’s

performance assessment are insufficient to demonstrate pretext.”22
Also, the Court notes that the Defendants replaced Plaintiff with
another African-American female which, while not dispositive, also
suggests a lack of racial animus in the Defendants’ employment
decisions regarding the Plaintiff.
The Court finds that Plaintiff has failed to present a prima
facie case of race discrimination.
if

Plaintiff

could

set

forth

The Court also finds that even
a

prima

facie

case

of

race

discrimination, she has failed to rebut the Defendants’ proffered
legitimate, non-discriminatory reasons for the decisions or offer
any

evidence

that

discrimination.

these

reasons

are

a

pretext

for

race

Therefore, Defendants are entitled to summary

judgment on this claim.
2.

Harassment Based on Race

Plaintiff also contends she was subjected to a hostile work
environment

because

of

her

race.

A

claim

of

hostile

work

environment requires the plaintiff to show that she: “1) belongs to
a protected group; 2) was subjected to unwelcome harassment; 3) the
harassment complained of was based on race; 4) the harassment
affected a term, condition, or privilege of employment; and 5) the
employer knew or should have known of the harassment in question
and

failed

to

take

prompt

remedial

action.”23

For

a

work

22

Perez v. Region 20 Educ. Service Center, 307 F.3d 318, 325 (5th Cir. 2002).

23

Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005).

Doc#48088

10

environment to be considered sufficiently hostile, a court must
consider all relevant circumstances.24 Such circumstances include:
“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.”25
Plaintiff contends Heistand cursed at her during a verbal
counseling and that he referred to her as a “black bitch” on at
least one occasion.

Plaintiff also claims she heard the term

“black bitch” more than once while at work but could not recall
precisely what was said each time (“black bitch” or “bitch”).
Plaintiff concedes she has no evidence other than her own testimony
to support these allegations.

While all of the Defendants’

submitted evidence reveals no other person at the Home heard
Heistand use these terms, the Court will assume for the sake of
analysis that the allegation is true.
The Defendants contend, and the Court agrees, that even if
Plaintiff heard Heistand use this term five times over the past
three years, it is not sufficiently severe or pervasive such that
it satisfies Plaintiff’s prima facie case.

In Frazier v. Sabine

River Authority State of Louisiana, Frazier alleged that his coworkers plotted to “set him up” and that the words “nigger” and

24

See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).

25

Id.

Doc#48088

11

“Negreet” were used in Frazier’s presence and there was an alleged
noose gesture.26

The Fifth Circuit affirmed the district court’s

“well-reasoned conclusion that these instances were isolated and
not

severe

or

pervasive

environment claim.”27

enough

to

support

a

hostile

work

The court continued that Frazier had failed

to present “concrete examples” to support his allegations that the
actions taken against him were based on race.28
The analysis and reasoning in Frazier applies to the case
before the Court.

Plaintiff’s only evidence to support that she

was subjected to a hostile work environment is her own subjective
belief. Plaintiff’s belief that something is true while a plethora
of evidence to the contrary exists in the record does not create a
genuine

issue

of

material

fact

in

this

case.

Even

taking

Plaintiff’s allegations as true, the allegations set forth do not
rise to the level of severe or pervasive as a matter of law but
constitute at most an occasional offensive utterance.
Plaintiff also fails to establish that her employer knew of
the alleged harassment and failed to take prompt remedial action.
The Fifth Circuit has held that “[t]o constitute ‘prompt remedial
action,’ an employer’s response to a harassment complaint must be

26

2013 WL 363121 (5th Cir. Jan. 30, 2013).

27

Id. at *4.

28

Id.

Doc#48088

12

‘reasonably calculated’ to end the harassment.”29

To be reasonably

calculated to end harassment, “an employer’s actions need not end
the harassment instantly.”30 “Likewise, an employer need not impose
the most severe punishment to comply with Title VII.”31
After Plaintiff filed a grievance against Heistand, Jon Salter
began overseeing Plaintiff’s department while he investigated the
matter.

The Defendants also issued a response to Plaintiff’s

grievance after investigation and consideration of the allegations.
Plaintiff then filed a grievance against Salter, and she was
transferred to headquarters during the investigation of these
claims.

Defendants

again

issued

a

response

to

Plaintiff’s

grievance against Salter after investigation and consideration.
Thus, the evidence does not support a finding that the Defendants
failed to take prompt remedial action.

Each time Plaintiff

complained of harassment by a supervisor, she was removed from that
supervisor’s supervision even though the Defendants found no merit
to Plaintiff’s allegations.

The Court finds that the Defendants

took prompt remedial action to end Plaintiff’s alleged harassment
which was “reasonably calculated” to end such harassment.
Plaintiff has failed to establish a prima facie case of

29

Kreamer v. Henry’s Towing, 150 Fed. Appx. 378, 382, 2005 WL 2705802, *4 (5th
Cir. Oct. 21, 2005), quoting Skidmore v. Precision Printing & Packaging, 188 F.3d 606, 615
(5th Cir. 1999).
30

Id., citing Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 (5th Cir. 1987).

31

Id., citing Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992).

Doc#48088

13

harassment based on race with sufficient summary judgment evidence.
Therefore, the Defendants are entitled to summary judgment on
Plaintiff’s claims of harassment based on race.
3.

Retaliation

Plaintiff claims she was retaliated against in violation of
Title VII for filing EEOC charges while employed at the Home.
EEOC Charge No. 461-2009-01996 alleges that Plaintiff’s reduction
in pay resulting in a two day suspension was in retaliation for
previously filing EEOC Charge No. 461-2008-01797.

Plaintiff’s

second claim of retaliation found in EEOC Charge No. 461-2009-02085
alleges Jon Salter terminated Plaintiff in retaliation for her
protected activity of filing charges with the EEOC.
To survive summary judgment on a Title VII retaliation claim,
the plaintiff must establish that: (1) she participated in a
protected activity; (2) she suffered an adverse employment action,
and (3) there was a causal connection between her protected conduct
and

the

adverse

employment

action.32

Plaintiff

has

clearly

satisfied the first two requirements under this analysis.

The

Court turns to a discussion of the causal requirement on each of
Plaintiff’s retaliation claims.
The Fifth Circuit has noted that, “[w]ithout direct evidence,

32

Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009).

Doc#48088

14

the causation element can be difficult to prove.”33

In analyzing

this prong of the retaliation test, “[t]here are three indicia of
causation: (1) the absence of any reference to the conduct at issue
in the employee’s disciplinary record, (2) deviation from the
employer’s customary ‘policy and procedures in terminating the
employee,’ and (3) temporal proximity between the termination and
protected conduct.”34

“A prima facie case can, in some instances,

be made on temporal proximity alone if the protected act and the
termination are ‘very close in time.’”35 The Fifth Circuit has noted
more specifically that “a time lapse of up to four months between
the protected activity and the employee’s discharge has been
sufficient to establish a prima facie case.”36

However, the Fifth

Circuit has also held “that a five-month time period was not
sufficient.”37
a.

EEOC Charge No. 461-2009-01996

The record is clear that this claim of retaliation occurred
more than five months after EEOC Charge No. 461-2008-01797 was
filed.

As a matter of law, this time period is insufficient to

33

Pryor v. MD Anderson Cancer Center, 495 Fed. Appx. 544, 547, 2012 WL
5360153, *3 (5th Cir. Nov. 1, 2012), citing Nowlin v. Resolution Trust Corp., 33 F.3d 498,
508 (5th Cir. 1994).
34

Id., quoting Nowlin, 33 F.3d at 508.

35

Id., quoting Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007).

36

Id. at 548, citing Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001).

37

Id., citing Raggs v. Miss. Power & Light, 278 F.3d 463, 471-72 (5th Cir. 2002).

Doc#48088

15

establish causation to make a prima facie case of retaliation.

In

her opposition, Plaintiff argues that “the calendar is not the
measure; rather, the conduct of Mr. Heistand is.”38

However,

Plaintiff fails to distinguish the cases cited by the Defendants on
this issue or offer any authority for her position.

The Court

finds that Plaintiff has failed to present a prima facie case of
retaliation on this charge.
b.
Plaintiff

EEOC Charge No. 461-2009-02085

alleges

in

this

charge

that

Salter

retaliated

against her for filing the previous EEOC charge against Heistand by
placing her on leave and then issuing a Notice of Consideration of
Termination letter.

The Defendants do not contest that Plaintiff

can satisfy a prima facie case of retaliation on this charge.
However,

the

judgment

evidence

reasons

for

Defendants

the

of

contend

they

legitimate,

actions

and

have

presented

non-discriminatory

that

Plaintiff

summary
business

cannot

show

a

discriminatory pretext for the actions taken.
The

Defendants

contend

that

Plaintiff

breached

HIPAA

guidelines by taking confidential Veterans’ information out of the
Home despite receiving training in HIPAA compliance.

Plaintiff

also violated HIPAA by forwarding an e-mail to a third party with
an attachment which contained confidential information.

Plaintiff

was verbally counseled on these occurrences and re-trained by the

38

Rec. Doc. No. 19, p. 6.

Doc#48088

16

Defendants in HIPAA compliance.
The

Defendants

also

present

evidence

that

Plaintiff

was

inattentive to detail which caused the risk of loss of revenue on
several occasions.

Defendants submit evidence that Plaintiff was

not an effective manager of the Fiscal Department by failing to
close out patients’ accounts timely.

Defendants contend when

Plaintiff’s staff requested help in completing tasks, Plaintiff
ignored them, delayed responding, or refused to help.

Further,

Defendants show that the Plaintiff sent inaccurate numbers to
headquarters more than once.

The record reflects that this

ineffective management resulted in the Fiscal Department receiving
several problematic reviews.

In fact, Auditor Donna Burn went to

the Home for numerous visits to re-train the Plaintiff on the
department’s deficiencies.
discovered
unresolved.

that

the

When Burn returned months later, she

problems

previously

addressed

were

still

Defendants contend that every time they attempted to

correct or re-train Plaintiff on work performance issues, she
offered excuses or shifted blame to others.
Defendants also present evidence that Plaintiff had a negative
attitude and poor customer service skills.

The record is replete

with testimony of subordinates and co-workers describing Plaintiff
as “abrasive,” “unpleasant to work with,” “critical,” having a
“condescending attitude,”39 “a bully,” and “not a nice person to

39

Rec. Doc. No. 9-5 & 9-6.

Doc#48088

17

work with.”40

The Defendants also contend on several occasions,

contractors were forced to contact Salter or Heistand because
Plaintiff

would

not

return

their

phone

calls

or

e-mails.

Defendants contend invoices were sometimes not paid until months
after submission.

In particular, one patient’s family contacted a

subordinate in the Fiscal Department because they did not want to
speak

to

the

Plaintiff

who

they

claim

had

been

rude

and

unprofessional.41
In her opposition, the Plaintiff clearly disagrees with and
attempts to explain many of the Defendants’ arguments about her
work performance. She contends she never violated HIPAA policy and
that the Defendants have failed to specify what specific provisions
she violated. Plaintiff argues the Defendants did not have a HIPAA
policy in place; however, the record reflects that she received
HIPAA compliance training twice.42

Furthermore, the Defendants did

not need to have a “HIPAA policy” because HIPAA is federal law with
which Plaintiff was bound to comply given her position and for
which she clearly attended training provided by the Defendants.
In response to several of Defendants’ allegations, Plaintiff
claims

other

employees

or

her

subordinates

were

at

fault.

Plaintiff also claims she addressed her staff’s needs to the best

40

Rec. Doc. No.

41

Rec. Doc. No. 9-6.

42

Rec. Doc. No. 9-22.

Doc#48088

18

of

her

ability

procedures.

and

held

meetings

to

discuss

problems

and

Finally, Plaintiff contends she did use her computer

for personal reasons during breaks and lunch periods, but that the
Defendants had no policy or procedure which prevented such conduct.
It is obvious that there are considerable facts in this case
which Plaintiff and the Defendants dispute.

However, the law is

clear that “[t]he mere existence of some alleged factual dispute
between parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact.”43

The Court finds the factual

disputes herein present no genuine issues of material fact relevant
to deciding the summary judgment motions.
The Court also finds that Plaintiff’s attempted explanations
for the Defendants’ allegations do not show a discriminatory
pretext for the employment actions taken against her.

The Court

notes that “Title VII does not protect an employee against unfair
employment decisions; instead, it protects against employment
decisions based upon discriminatory animus.”44

In fact, “[a]n

employer can make an incorrect employment decision; if based on a
good faith belief with no discriminatory influences, then the court

43

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986)(emphasis in original).
44

Nieto v. L & H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997).

Doc#48088

19

will not try the validity of the reason.”45
Defendants

have

discriminatory

presented

reasons

for

suspension, and termination.

a

multitude

In this case, the

of

Plaintiff’s

legitimate,

disciplinary

non-

actions,

The Court will not second-guess the

correctness of each individual decision.

Plaintiff has failed to

present summary judgment evidence that these reasons are a pretext
for discrimination.
4.
Plaintiff
distress.

Emotional Distress
has

asserted

a

state

law

claim

for

emotional

To prove intentional infliction of emotional distress

under Louisiana law, a plaintiff “must establish (1) that the
conduct of the defendant was extreme and outrageous; (2) that the
emotional distress suffered ... was severe; and (3) that the
defendant desired to inflict severe emotional distress or knew that
severe emotional distress would be certain or substantially certain
to result from his conduct.”46 For a defendant’s conduct to satisfy
the first prong, “[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 intolerable in a

45

Jones v. Overnite Transp. Co., 212 Fed. Appx. 268, 275, 2006 WL 3627148, *5 (5th
Cir. Dec. 13, 2006), citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.
1995).
46

White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991); Deus v. Allstate Ins.
Co., 15 F.3d 506, 514 (5th Cir. 1994).
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civilized community.”47

As for the third prong, “the acts must be

intentional in the sense that the person who acts either (1)
consciously desires the physical result of his act, whatever the
likelihood of that result happening from his conduct; or (2) knows
that result is substantially certain to follow from his conduct,
whatever his desire may be as to that result.”48
Plaintiff has alleged that on one occasion, Heistand called
her into an office, yelled at her, put his hand in her face and
spat in her face, and referred to her a few times as “black bitch.”
Plaintiff also claims she was not allowed to discipline her
subordinates but was held responsible for their deficiencies.

She

further claims that “Information Sheets” criticizing her work
performance were prepared during her absence and presented to her
upon return from vacation.

Also, Plaintiff contends her work

schedule was changed after attempting to make a white subordinate
follow procedure.
The

Defendants

cite

two

Louisiana

cases

where

far

more

egregious behavior was held insufficient to constitute extreme and
outrageous behavior.49
47

Plaintiff failed to address or distinguish

Id. at 1209.

48

Givs v. City of Eunice, 512 F.Supp.2d 522, 548 (W.D. La. 2007), citing White, 585
So.2d at 1208.
49

See, Stewart v. Parish of Jefferson, 95-407 (La. App. 5 Cir. 1/30/96), 668 So.2d
1292 (court held two years of harassment by supervisor who questioned employee’s
personal life, increased employee’s workload, and pressured employee into accepting
demotion resulting in employee’s termination did not constitute extreme and outrageous
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21

these

cases

in

her

opposition

and

failed

to

present

any

jurisprudence which would support an emotional distress claim under
the facts of this case.

It is clear that the conduct complained

of does not rise to the level of extreme and outrageous required
under the law.
Plaintiff also claims she requested FMLA leave for “severe
stress with insomnia, anorexia and weight loss; worsening of
hypertension; dyspepsia.”50 However, the family practitioner who
completed this form on Plaintiff’s behalf does not attribute the
causation of these symptoms to her job.

Plaintiff makes the

conclusory statement that she did not suffer these conditions prior
to working at the Home or after leaving the Home; therefore, it
must follow that these conditions were caused by her working at the
Home.

This is insufficient evidence as a matter of law.

Further,

as Defendants point out, Plaintiff has failed to disclose a medical
expert who could possibly testify as to the cause of her medical
condition.

Plaintiff’s own self-serving deposition testimony that

she believes her job caused these conditions cannot prove her claim
of emotional distress.
Plaintiff has failed to present any evidence to satisfy the

behavior); Beaudoin v. Hartford Acc & Indem. Co., 594 So.2d 1049 (La. App. 3 Cir.
1992)(court held employee subjected to eight months verbal abuse by supervisor, including
shouting, cursing, name-calling, anti-women comments, and false accusations of mistakes,
did not rise to the level of extreme and outrageous).
50

Rec. Doc. No. 19-17, p. 4.

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22

elements of the White test.

The record does not reflect that the

Defendants’ alleged conduct was extreme and outrageous, or in any
way intended to inflict severe emotional distress, or made knowing
that

severe

emotional

distress

would

be

likely

to

result.

Plaintiff has not established that she has in fact suffered severe
emotional distress and has no medical expert to prove such a claim.
Plaintiff’s emotional distress claim fails as a matter of law, and
Defendants are entitled to summary judgment on this claim.

III. Conclusion
For the reasons set forth above:
The Defendants’ motions for partial summary judgment51 are
granted.

Plaintiff’s claims are dismissed with prejudice.

Judgment shall be entered accordingly.
IT IS SO ORDERED.
Baton Rouge, Louisiana, April 18, 2013.

JAMES J. BRADY, JUDGE
MIDDLE DISTRICT OF LOUISIANA

51

Rec. Doc. Nos. 7 & 9.

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