Watkins v. Recreation and Park Commission for the City of Baton Rouge, et al

Filing 59

Supplemental RULING on 22 MOTION for Summary Judgment: The Motion filed byRecreation and Park Commission for the Parish of East Baton Rouge is granted on the plaintiffs claims under Title VII, 42 U.S.C. § 2000e-2(a)(1), and the Louisiana Emplo yment Discrimination Law, LSA-R.S. 23:332, for disparate treatment and hostile work environment based on race, and on the plaintiffsretaliation claims under Title VII. Summary judgment is also granted to the defendant on the plaintiffs retaliation claim under the Louisiana Whistleblower Statute, LSA-R.S. 23:967. Signed by Magistrate Judge Stephen C. Riedlinger on 12/26/2013. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

WARREN R. WATKINS
CIVIL ACTION
VERSUS
NUMBER 12-366-SCR
RECREATION AND PARK COMMISSION
FOR THE CITY OF BATON ROUGE
SUPPLEMENTAL RULING ON MOTION FOR SUMMARY JUDGMENT
Before the court is the Motion for Summary Judgment filed by
defendant Recreation and Park Commission for the Parish of East
Baton Rouge, hereafter (“BREC”).

Record document number 22.

The

motion is opposed.1
In the Ruling on Motion for Summary Judgment issued December
13, 2013, the Motion for Summary Judgment filed by defendant BREC
was granted on the plaintiff’s claims under Title VII, 42 U.S.C. §
2000e-2(a)(1), and the Louisiana Employment Discrimination Law,
LSA-R.S.

23:332,

for

disparate

treatment

and

hostile

work

environment based on race, and the plaintiff’s retaliation claim
under Title VII.

This supplemental ruling gives the reasons for

dismissing those claims.
the

plaintiff’s

state

This supplemental ruling also dismisses
law

whistleblower

claim

under

LSA-R.S.

23:967.
1

Record document number 42. BREC filed a reply memorandum.
Record document number 48. Pursuant to the court’s Order Setting
Time to File Supplemental Memoranda, the parties filed additional
memoranda addressing the plaintiff’s whistleblower claim. Record
document numbers 56, order, 57 and 58, memoranda.

Background
Plaintiff Warren R. Watkins, filed a Complaint against BREC
for claims arising out of his employment as a welder from July 2004
to March 28, 2012.

Plaintiff alleged claims under Title VII, 42

U.S.C. § 2000e-2(a)(1), for disparate treatment and hostile work
environment based on race,2 and also alleged a retaliation claim
under Title VII.

Plaintiff’s supplemental state law claims for

discrimination and retaliation were brought under LSA-R.S. 23:332,
Louisiana Employment Discrimination Law (“LEDL”), and La.R.S.
23:967, the Louisiana Whistleblower statute.
The following summary generally consists of the plaintiff’s
employment history with BREC and its purpose is to provide general
background information.

It does not repeat all the relevant and

undisputed facts contained in the summary judgment record.
In July 2004, BREC hired the plaintiff as a welder and
assigned him to park operations.

Plaintiff’s foreman and direct

supervisor was Donnie Broussard, the trades foreman for park
operations.3

Plaintiff’s next level supervisor was Mike Amond,

BREC’s senior trades foreman.4 Broussard and Amond interviewed the
plaintiff for the welder position.

During the tenure of the

2

Plaintiff is black.

3

Record document number 22-5, Exhibit I.

4

Record document number 22-5, Exhibit G.

Record document number 1, Complaint, ¶

3.

2

plaintiff’s employment Mark Lee and Justin Smith held the positions
of assistant director and director of park operations.5

Mike Hano,

who the plaintiff alleges was similarly situated to him and
received more favorable treatment, began working as a welder when
he was transferred into the position in June 2010.6
According to the plaintiff’s verified Complaint, deposition
testimony and his October 21, 2011 charge of discrimination filed
with

the

Equal

Employment

Opportunity

Commission

(“EEOC”),

beginning approximately March 1, 2011 and continuing thereafter the
plaintiff claimed that he was subject to unfair treatment and was
denied training opportunities because of his race.

The substance

of the plaintiff’s first EEOC charge stated as follows:
There are only two Welders in my department. I am the
only Welder that has not been given key holder access to
the new facility.
The white welder, Mike Hayno, was
given keys to the new facility. Also, there has been a
distinction in which employee is given additional
training opportunities. Mike Amond, White Supervisor,
gave Mike Hayno additional training opportunities that
were never afforded to me. When I questioned Mike Amond
about the being excluded from training opportunities and
key holder access, he became angry and stated I would
never have key holder access.7
With the exception of three incidents that began or occurred
prior to March 2011, the plaintiff’s Complaint alleged a series of

5

Record document number 33-2, Exhibits 2 and 3.

6

Broussard, Amond and Hano are white.

7

Record document number 22-3, Exhibit C, Plaintiff’s EEOC
charge number 461-2011-01890, October 21, 2011; record document
number 1-4, Notice of Right to Sue, March 23, 2012.
3

racially discriminatory and retaliatory actions that occurred up
until and including his termination on March 28, 2012.
On March 22, 2012 Broussard and Amond held a meeting with the
plaintiff to counsel and advise him of BREC policies that related
to multiple deficiencies in performance.8

Plaintiff refused to

sign the memorandum of his counseling session and was advised that
his refusal was an act of insubordination. Plaintiff still refused
to sign.

Plaintiff was suspended for three days without pay

pending termination, and was advised to go to human resources on
March 28, 2012.

At a meeting on March 28 the plaintiff again

refused to sign the counseling form and was terminated.9

Plaintiff

appealed his termination to the BREC Ad Hoc Peer Review Committee,
which met on May 3, 2012 to hear the plaintiff’s appeal of his
termination.

The committee recommended that the plaintiff’s March

28 termination be rescinded and the plaintiff reinstated to his
position, with three conditions:
Adhere to and comply with all BREC Rules and Regulations
and follow supervisor’s instruction concerning jobrelated matters. Includes signing counseling sessions
and/or incident reports.
Show a willingness to improve you overall cooperation and
attitude to work with management personnel and the
employees with whom you work and put an end to the

8

Record document number 22-5, Exhibit J, March 22, 2012
memorandum of counseling session.
9

Record document number 22-2, Statement of Uncontested
Material Facts, Numbers 12, 14 and 15, including exhibits and
deposition testimony cited.
4

adversary relationship.
We want to provide you with
every opportunity to be successful in your career her at
BREC.
Schedule a counseling session to meet with a professional
of the Employee Assistance Program (EAP) to help you work
through your personal/work-related problems that may be
affecting your job performance.10
Plaintiff refused to accept the offer of reinstatement and
chose to appeal his termination to the Human Resources Grievance
Committee.

This appeal was documented in a letter signed by the

plaintiff on May 18, 2012.11

The letter also stated that the

committee determined to let stand the three day suspension/leave
without

pay.

At

the

Human

Resources

Complaint

Resolution

Committee, which met to hear the plaintiff’s appeal on June 11,
2012, the plaintiff appeared and notified the committee that he did
not want his job back under the conditions listed, but wanted the
opportunity to confront the BREC employees he listed as witnesses
as to the reasons for his termination and to clear his name.

Based

on the plaintiff’s statements the hearing was adjourned, and the
plaintiff’s status as terminated from his position with BREC
remained unchanged.12

10

Record document number 22-5, Exhibit M, May 9, 2012 letter
to plaintiff signed by Superintendent Carolyn B. McKnight.
11

Record document number 22-2, Statement of Uncontested
Material Facts, Number 16, including exhibits and deposition
testimony cited.
12

Id., Number 17, including exhibits and deposition testimony

cited.
5

On August 2, 2012 the plaintiff filed a second charge of
discrimination with the EEOC alleging that his termination on March
28, 2012 was retaliation for filing his previous EEOC charge.
Plaintiff stated in this charge:
I previously filed a complaint with the EEOC, Charge
number 461-2011-01890. A no cause was issued on March 23,
2012.
On February 3, 2012, I was issued a work
assignment sheet which contained a “booger” on it. I did
not inform Donnie Broussard, Supervisor. I reported it
to Stephanie Trim, Director of Human Resources, but
nothing was done. On March 22, 2012, I was suspended due
to not signing a write up regarding work performance. On
March 28, 2012, I was terminated by Justin Smith, Park
Director for insubordination.13
Plaintiff was issued a Notice of Right to Sue on this charge
on September 12, 2012.
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.

13

Anderson, 477 U.S. at

Record document number 22-3, Exhibit D, EEOC charge 27A2012-00051 dated August 2, 2012.
6

252, 106 S.Ct. at 2512.
metaphysical

doubt

as

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.
S.Ct. at 2513.
the

evidence,

Anderson, 477 U.S. at 255, 106

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.

7

Race

and

Hostile

Work

Environment

Discrimination

Claims

The well-established McDonnell Douglas14 framework is applied
to

consideration

of

race

federal and state law.15

discrimination

claims

brought

under

To establish a prima facie case of race

discrimination, the plaintiff must demonstrate that he is:

(1) a

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

that

prima

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
14

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817 (1973).
15

Race discrimination in employment claims under 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).
8

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

ultimate question of whether the plaintiff has proven intentional
discrimination.

Id.; Reeves, supra.

A plaintiff may attempt to establish that he was the victim of
intentional

discrimination

by

offering

evidence

that

the

employer’s legitimate nondiscriminatory reason is unworthy of
belief.

The

trier

of

fact

may

also

consider

the

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.
sufficient

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

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

to

find

that

the

employer’s

asserted

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

9

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
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
10

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, 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, 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 also establish a violation of Title VII 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
11

Diamond Foods, LLC, 2007-1229 (La.App. 1 Cir. 7/29/08), 993 So.2d
644, 648, writ denied, 2008-2138 (La. 11/10/08), 996 So.2d 1077.
In

order

to

discrimination

hold
has

an

employer

created

liable

an

for

abusive

a
or

claim

that

hostile

race

working

environment, a plaintiff must prove the following four elements in
cases where it is asserted that a supervisor with authority to take
tangible employment actions against an employee perpetrated the
harassment: (1) that he belongs to a protected class; (2) that he
was subjected to unwelcome harassment; (3) that the harassment was
based on a prohibited ground, such as race; and, (4) that the
harassment affected a term, condition, or privilege of employment.
Vance v. Ball State University, ____ U.S. ____, 133 S.Ct. 2434,
Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).16

A

tangible employment action is a “significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with

significantly

different

responsibilities,

causing a significant change in benefits.”
2442, citing,

or

a

decision

Vance, 133 S.Ct. at

Ellerth, 524 U.S at 762, 118 S.Ct. 2257.

If the alleged harassment is committed by a co-worker or a
supervisor who is not empowered by the employer to take tangible
employment actions, the plaintiff must also prove a fifth element that the employer knew or should have known of the harassment and

16

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).
12

failed to take prompt remedial action.

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); Vance, 133 S.Ct.
at 2441.
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.

The mere utterance of an offensive

comment or remark which hurts an employee’s feelings is not
sufficient to affect the conditions of employment. Simple teasing,
offhand comments, and isolated incidents, unless they are extremely

13

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) 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.
McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007);
LeMaire v. State of Louisiana, 480 F.3d 383, 388 (5th Cir. 2007).17
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.

Long v. Eastfield College, 88

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

However, proof of an actual

17

Anti-retaliation provisions are absent from the sections of
the LEDL that prohibit 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); Glover v. Smith,
478 Fed.Appx. 236 (5th Cir. 2012); Corley v. Louisiana ex re. Div.
of Admin., 498 Fed. Appx. 448 (5th Cir. 2012).
14

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

A plaintiff alleging retaliation

may satisfy the causal connection element by showing close timing
between an employee's protected activity and an adverse action
against him.

McCoy, 492 F.3d at 562. Such temporal proximity must

generally be very close.

The

Fifth Circuit has found, for

example, that a time lapse of up to four months may be sufficiently
15

close, while a five month lapse is not close enough without other
evidence of retaliation.

Such evidence may include an employment

record that does not support dismissal, or an employer’s departure
from typical policies and procedures. Feist v. Louisiana, Dept. of
Justice, Office of the Atty. Gen.

730 F.3d 450, 454 -455 (5th Cir.

2013).
If the employee establishes a prima facie case, the burden
shifts to the employer to state a legitimate, non-retaliatory
reason for its decision. After the employer states its reason, the
burden

shifts

back

to

the

employee

to

demonstrate

that

the

employer’s reason is actually a pretext for retaliation, which the
employee accomplishes by showing that the adverse action would not
have occurred “but for” the employer’s retaliatory motive.

Univ.

of Tex. Sw. Med. Ctr. v. Nassar, ____U.S. ____, 133 S.Ct. 2517,
2533 (2013); Feist, 730 F.3d at 454. Therefore, a plaintiff making
a Title VII retaliation claim must establish that his protected
activity was a but-for cause of the alleged adverse action by the
employer, which is a more demanding standard than the motivatingfactor

standard

that

applies

to

status-based

discrimination.

Nassar, 133 S.Ct. at 2532-33.
To avoid summary judgment the plaintiff must show “a conflict
in substantial evidence” on the question of whether the employer
would not have taken the action “but for” the protected activity.
Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir.1996).

16

Evidence is substantial if it is of such quality and weight that
reasonable

and

fair-minded

men

in

the

exercise

judgment might reach different conclusions.
standing alone, is not enough.

of

impartial

Temporal proximity,

Strong v. Univ. Healthcare Sys.,

L.L.C., 482 F.3d 802, 808 (5th Cir. 2007); Hernandez v. Yellow
Transp., Inc.

670 F.3d 644, 658 (5th Cir. 2012).

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,
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

17

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; Dillon v.
Lakeview Regional Medical Center Auxilliary, Inc., 2012 WL 2154346
(La.App. 1 Cir., June 13, 2012); 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.18
Other than this difference, the standards for analyzing a
retaliation claim under the Louisiana Whistleblower statute is the
same as that applied in Title VII retaliation cases.

Strong,

supra; Haire v. Board of Sup’rs of Louisiana State Univ., 719 F.3d
356, 364 (5th Cir. 2013).
Analysis
The following analysis does not recite every argument or bit
of summary judgment evidence contained in the extensive summary
judgment record.

However, all of the arguments and competent

summary

submitted

evidence

by

the

parties,19

even

if

not

18

Proof of an actual unlawful employment practice is not
required for a Title VII retaliation claim. Long, supra.
19

Defendant filed a Motion to Strike Exhibits, seeking to
strike all or part of various exhibits that were filed by the
(continued...)
18

specifically

mentioned

have

been

reviewed

and

carefully

considered.20
Title VII and LEDL Race Discrimination Claim
With regard to the plaintiff’s race discrimination claim under
Title VII and the LEDL, there is no dispute as to the first two
elements of the prima facie case - the plaintiff is in a protected
class and was qualified for his welder position.

However, the

defendant argued that the evidence demonstrates that the plaintiff
did not suffer an ultimate or materially adverse employment action
because he was offered reinstatement, which he refused.

At the

same time the defendant maintained that any adverse employment

19

(...continued)
plaintiff in support of his opposition to the defendant’s Motion
for Summary Judgment.
Record document number 47.
Plaintiff
opposed that motion. Record document number 51. In ruling on the
defendant’s Motion for Summary Judgment, the court did not consider
any inadmissible opinions, speculation or hearsay contained in the
depositions, affidavits, declarations, and other exhibits. All of
the remaining evidence was reviewed in light of the applicable law,
to determine whether there was a genuine dispute for trial as to
the plaintiff’s claims of discrimination and retaliation. A
separate ruling on the defendant’s Motion to Strike will be issued.
20

The court notes that the plaintiff’s opposition memorandum
is 60 pages and lacks subheadings or any other discernable method
of organization. It also contains many lengthy quotations from
cases with little or no explanation of how the cases or quotations
relate to the elements of the plaintiff’s claims and the summary
judgment evidence. This made it very difficult to distinguish what
arguments and evidence the plaintiff is relying on as support for
each of his claims. Furthermore, in many instances the plaintiff
just cited his entire affidavit or deposition in support of an
argument. Rule 56 does not impose on the court a duty to sift
through the record in search of evidence to support the plaintiff’s
opposition to the defendant’s summary judgment motion. See, Adams
v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006).
19

actions against the plaintiff were taken for legitimate, nondiscriminatory reasons, which the plaintiff has no evidence to
dispute or otherwise show were motivated by race.
Since the defendant has presented summary judgment evidence to
establish

the

non-discriminatory

reasons

for

its

employment

decisions, for purpose of this motion the three day suspension
without

pay

materially

and

termination

adverse

will

be

considered

actions.21

employment

ultimate

Therefore,

all

and
the

competent summary judgment evidence will be considered in light of
the plaintiff’s burden of proving that race was a motivating factor
in his suspension without pay and termination.
The

following

summary

of

facts

contained

in

the

record

establishe the defendant’s legitimate non-discriminatory reasons
for

the

plaintiff’s

suspension

and

termination.

Defendant

submitted evidence which showed that, contrary to BREC policy, the
plaintiff was taking his BREC vehicle home during his lunch break
without

permission

from

his

supervisor.22

Plaintiff’s

direct

supervisors Broussard and Amond also began to notice a decline in
the plaintiff’s attitude and performance. They decided to document

21

See, LeMaire v. Louisiana Dept. of Transp. and Dev., 480
F.3d 383, 390 (5th Cir. 2007); Johnson v. Alice Independent School
Dist., 2012 WL 4068678 (S.D. Tex. Sept. 14, 2012);
22

Record document number 22-3, Exhibit B, Trim affidavit;
record document number 22-5, Exhibit G, Amond affidavit; record
document number 22-5, Exhibit I, Broussard affidavit (hereafter,
Trim, Amond or Broussard affidavit).
20

and discuss these issues in a counseling session with the plaintiff
held on March 22, 2012.

The reasons for counseling were set forth

in a document addressed to the plaintiff, which stated that the
plaintiff

was

being

deficiencies:

counseled

and

advised

of

the

following

(1) routinely making excessive trips to supply

houses and unproductive use of work time and resources; (2) lack of
productivity/taking too long to perform job assignments; (3) taking
his BREC vehicle home on March 21, 2012 during his lunch break
without direct permission from his supervisor; (4) failing to
follow proper procedures related to filling out daily assignment
sheets,

logging

purchases

from

vendors,

and

other

essential

information for budget tracking; and, (5) lack of a positive
attitude that was affecting his productivity and crew morale.
The counseling session document was signed by Broussard and
Amond, and the form also had a line for the plaintiff to sign.
After the counseling session the plaintiff refused to sign the
form.

Plaintiff was notified that the refusal was insubordination

and could lead to a three day suspension, but he again refused to
sign the form.

Plaintiff also refused to sign the report of the

insubordination incident written and signed by Amond.

Mark Lee

then came to the meeting and instructed the plaintiff to sign.
When the plaintiff refused he gave the plaintiff a three day
suspension.
Plaintiff attended a meeting at BREC’s human resources office

21

six days later on March 28, where he was again asked to sign the
document.

Plaintiff refused, and as a result he was terminated.

Plaintiff acknowledged that the form did not state that his
signature

would

be

an

admission

of

what

was

stated

in

it.

Plaintiff, however, believed that the items listed were false
allegations and that signing the form would indicate that he was
admitting that his supervisors’ statements had merit and were
true.23
Plaintiff’s appeals of his termination resulted in an offer of
reinstatement, provided the plaintiff agreed to several provisions
outlined in documents dated May 8 and May 18, 2012: (1) follow his
supervisor’s

instructions

in

the

future,

including

signing

counseling and incident reports; (2) improve his attitude with
management and co-workers; and, (3) schedule an appointment for
Employee Assistance counseling.24

Plaintiff refused reinstatement

with these conditions. Plaintiff testified that he refused because
he believed that to do so would be admitting that “they were right
and I was wrong,” and he believed that he would be agreeing to do
the same thing that he refused to do earlier - sign a document
which would indicate or admit that he was guilty of whatever was

23

Record document number 22-4, Plaintiff’s deposition, pp.
141-48, 153 (hereafter, plaintiff depo.)
24

Record document number 22-5, Exhibits M and N.
22

stated in the document.25
In response to this evidence the plaintiff failed to come
forward with evidence sufficient for a reasonable trier of fact to
conclude that BREC’s
terminating

his

employment

motivating factor.
statements

stated reasons for suspending and then

regarding

were

false,

or

that

race

was

a

While the plaintiff generally denied the
his

performance

and

attitude

problems

contained in the March 22 counseling letter, he failed to come
forward with specific evidence to dispute them. Plaintiff also did
not dispute the multiple times that he refused to sign the form,
nor that he refused reinstatement because he maintained his right
to reject his supervisors’ instructions to sign counseling and
incident reports he believed were false.
Plaintiff attempted to dispute BREC’s reasons and create a
genuine dispute for trial by relying on evidence that: (1) his
prior job evaluations were all good or excellent;26 (2) during the
appeals process he was offered reinstatement, which showed that he
did not have deficiencies in his job performance and was not
insubordinate in the first place; (3) when he appealed the denial
of unemployment benefits, the administrative law judge found that

25

Plaintiff depo., pp. 150-54.

26

From his hiring as a welder in July 2004, the plaintiff’s
annual evaluations, signed by Broussard, were either good or
excellent. Plaintiff’s April 19, 2011 evaluation was excellent.
Record document number 42-3, Exhibit 21.
23

his discharge was not for misconduct connected with his employment
and reversed his disqualification for benefits;27 and, (4) white
BREC

employees

under

nearly

identical

circumstances

were

not

disciplined and/or given preferential treatment.28
Review of these arguments and the related evidence does not
create a genuine dispute for trial on the plaintiff’s claim of race
discrimination.
Plaintiff relied on his excellent job performance evaluations
throughout his employment with BREC, the last one of which was
completed by his supervisors Broussard and Amond on April 19, 2011.
However, these evaluations, with the last one done almost a year
before the counseling session, contain nothing to contradict or
support a reasonable inference that any of the specific items
listed in the March 22 counseling letter were false.

Similarly,

the offer of reinstatement was conditioned on the plaintiff’s
agreement to improve his attitude, schedule an appointment for
employee assistance counseling, and follow instructions in the
future, including signing counseling and incident reports.

The

offer of reinstatement is not evidence from which a reasonable
trier of fact could find that the plaintiff was not insubordinate
or did not engage in the conduct cited in the March 22 counseling

27

Record document number 42-4, Exhibit 30.

28

Plaintiff did not argue, and there is no evidence, that the
plaintiff was replaced someone outside his protected class.
24

letter.

Contrary to the plaintiff’s argument, the only reasonable

inference supported by the terms of BREC’s reinstatement offer is
that BREC stood by its reasons for disciplining and terminating the
plaintiff, and that it wanted the plaintiff to agree to correct
these problems in order to be reinstated.
Plaintiff

also

relied

on

evidence

that

the

state

administrative law judge (“ALJ”) reversed his disqualification for
unemployment benefits.

The ALJ determined under the law governing

the payment of state unemployment compensation benefits that the
plaintiff

was

terminated

for

conduct

not

employment and should not be denied benefits.

connected

to

his

Nothing in this

finding disputes or contradicts the legitimate, non-discriminatory
reasons for BREC’s employment decisions.

It is simply a finding

from an administrative hearing, applying different legal standards,
that BREC’s stated reasons did not disqualify the plaintiff from
receiving unemployment benefits.

Furthermore, there is nothing in

the legal or factual basis of the decision which supports a
reasonable inference that race was a motivating factor in the
plaintiff’s suspension and termination.
Finally, the plaintiff argued that the evidence supports his
claim of race discrimination because two similarly situated white
employees - John Wright and Mike Hano - were not disciplined and/or
received more favorable treatment. However, the record contains no
evidence to support a reasonable inference that these individuals

25

were similarly situated to, and engaged in conduct nearly identical
to, the plaintiff but were not subject to any of the adverse
employment actions imposed on the plaintiff.29
With regard to Wright, BREC presented evidence that employees
were advised in a meeting held with all BREC employees that it was
a violation of policy for an employee to go home in a BREC vehicle
during lunch.30

Plaintiff admitted that he sometimes took his BREC

vehicle home on his lunch break and did not have permission.
Plaintiff stated that he did not know this practice was prohibited
prior to his counseling session on March 22, 2012, but he did not
deny the meeting was held, or present any evidence that such a
meeting did not take place.31 Plaintiff attempted to dispute BREC’s
reasons and show disparate treatment by presenting evidence that

29

In the context of a race discrimination claim where the
plaintiff alleged that employees who were not members of the
protected class received no discipline or more lenient discipline
for similar violations, the plaintiff must come forward with
specific evidence of comparators who were similarly situated. The
Fifth Circuit requires an employee who proffers a fellow employee
as a comparator to 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. Lee v. Kansas
City Southern Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
30

Trim affidavit,¶ 11; Amond and Broussard affidavits, ¶ 10.

31

Plaintiff depo., pp. 79-87.
26

Wright took his vehicle home on March 29, 2012 and had been doing
so for over 20 years without being counseled or disciplined.
Defendant, however, presented uncontradicted evidence that based on
Wright’s

personal

circumstances

he

had

permission

from

his

supervisor to take his vehicle home during lunch. Plaintiff cannot
dispute that Wright had permission, whereas he did not.
there

is

no

evidence

to

dispute

BREC’s

Thus,

legitimate,

non-

discriminatory reason for counseling the plaintiff about taking his
BREC

vehicle

home

at

lunch,

and

no

evidence

to

support

the

plaintiff’s claim that he was being singled out and treated less
favorably than a white employee who engaged in the same conduct.
With regard to Hano, the plaintiff relied on his own testimony
that Hano was “less qualified” and various instances where Hano’s
work was deficient, but he was not disciplined in any way for his
conduct.

However, none of the evidence the plaintiff offers about

Hano’s employment supports a reasonable inference that he engaged
in conduct nearly identical to the plaintiff, but was not subject
to

the

disciplinary

actions

that

were

levied

against

the

plaintiff.32 Without such evidence a reasonable trier of fact could
not infer that any difference in the treatment of Hano as compared
to the plaintiff was motivated by the plaintiff’s race.
In summary, without any evidence to dispute the legitimate,

32

For example, the plaintiff did not offer any evidence that
Hano took his BREC vehicle home during lunch without permission, or
that Hano was insubordinate to his supervisors.
27

non-discriminatory

reasons

given

by

the

defendant

for

the

plaintiff’s suspension and termination, or evidence that similarly
situated persons outside the protected class and under nearly
identical circumstances were treated more favorably, there is no
evidence from which a reasonable jury could infer that race was a
motivating factor in the defendant’s employment decisions.

The

above analysis demonstrates that the plaintiff has failed to come
forward with sufficient evidence to create a genuine dispute for
trial on his claim of race discrimination under Title VII and the
LEDL.
Title VII Retaliation Claim
There is no dispute as to the first element of the plaintiff’s
prima

facie

case

of

retaliation

-

the

plaintiff

engaged

in

protected activity when he filed a charge of race discrimination
with the EEOC on October 21, 2011 while he was still employed by
the defendant. However, the defendant argued that summary judgment
should be granted because: (1) the plaintiff cannot establish that
he suffered a materially adverse employment action; and (2) even if
he could establish a materially adverse employment action, the
plaintiff cannot show a causal connection, or that the reasons for
the adverse employment actions were a pretext for retaliation.
It is assumed for purposes of this motion that the counseling,
three day suspension without pay and termination are materially
adverse employment actions.

Defendant has come forward with
28

legitimate, non-retaliatory reasons for these employment decisions,
which are the same as the legitimate, non-discriminatory reasons
set forth in the analysis of the plaintiff’s race discrimination.
Therefore, the competent summary judgment evidence is considered in
light of the plaintiff’s burden of proving that the defendant would
not

have

taken

the

adverse

employment

actions

but

for

the

plaintiff’s protected activity of filing an EEOC charge.
Plaintiff relied on the same evidence as he did in his race
discrimination claim to dispute the defendant’s legitimate, nonretaliatory reasons for the March 2011 adverse employment actions.
For

the

same

reasons

discrimination

claim,

explained
the

in

the

evidence

analysis

the

of

plaintiff

the
cites

race
is

insufficient to dispute the defendant’s legitimate, non-retaliatory
reasons

for

the

actions.

With

regard

to

the

plaintiff’s

retaliation claim, the only other evidence that the plaintiff
points to is the timing of the actions - the counseling session,
followed closely by the plaintiff’s suspension and termination,
occurred approximately five months after the plaintiff filed his
EEOC charge.

This evidence of timing, given the absence of

evidence to dispute the defendant’s legitimate, non-retaliatory
reasons, is insufficient for a reasonable trier of fact to conclude
that the adverse employment actions would not have been taken but

29

for the plaintiff filing the EEOC charge.33

Plaintiff has failed

to demonstrate that there is a conflict in substantial evidence on
this

essential

element

of

his

Title

VII

retaliation

claim.

Therefore, summary judgment will also be granted as to this claim.34
Title VII, LEDL Race-based Hostile Work Environment Claim
Defendant argued that summary judgment should also be granted
as to the plaintiff’s claim that he was subjected to a racially
hostile work environment. Defendant argued for summary judgment on
the following grounds: (1) three incidents of alleged harassment
are time barred, because they occurred before the 300 day period
preceding the date the plaintiff filed his initial EEOC charge; (2)
plaintiff failed to present any evidence that the alleged acts of
racial harassment were sufficiently related to apply the continuing
violation

exception;

(3)

the

alleged

acts

of

harassment

the

plaintiff complained of were not objectively severe or pervasive,
such that they affected the terms and conditions of the plaintiff’s
employment; (4) plaintiff cannot establish that the alleged actions
were taken because of his race; and (5) the plaintiff has no
evidence that BREC knew or should have known of the harassment and

33

See, Roberson, 373 F.3d at 656.

34

Notably, although the plaintiff alleged that his supervisors
took adverse employment actions against him because of his race and
in retaliation, when specifically asked at his deposition why he
thought Broussard, Amond, Lee, Smith and Trim were intimidating/
harassing him and wanted him terminated, the plaintiff answered, “I
have no idea.” Plaintiff depo., pp. 148-49.
30

failed to take prompt remedial action to stop it.
Review of the competent summary judgment evidence demonstrates
that even if the plaintiff had sufficient evidence to show that
because of his race he was subjected to actionable harassment (but
he does not have such evidence), he failed to come forward with
evidence that the defendant knew or should have known of the
alleged harassment and failed to take prompt remedial action.35
Defendant presented uncontradicted evidence that Smith and Lee, the
director and assistant director of park operations, were the
plaintiff’s supervisors who had the authority to hire, fire,
promote, reassign, and make employment decisions resulting in a
significant change in benefits.

Broussard and Amond directed the

plaintiff’s daily work activities, but did not have the authority
to take these tangible employment actions against the plaintiff.
This is evidenced by the affidavits of Smith and Lee, the documents
related to the plaintiff’s suspension and termination, as well as
the

plaintiff’s

deposition

testimony

and

his

EEOC

charge.36

Plaintiff did not claim or present any evidence that the numerous
acts

of

harassment

he

alleged

were

taken

by

Lee

or

Smith.

35

Based on this conclusion, it is unnecessary to address the
defendant’s remaining arguments for dismissal of this claim.
36

Record document number 33-2, Exhibit 2, Lee affidavit, and
Exhibit 3, Smith affidavit (hereafter Lee or Smith affidavit);
record document number 22-5, Exhibits J and L; Plaintiff depo.,
143-47; record document number 22-3, Exhibit D, August 2, 2012 EEOC
charge.
31

Plaintiff set forth in his Complaint, affidavit and deposition
testimony a litany of alleged harassment by Hano and other coworkers, namely Broussard and Amond.

However, as the analysis of

the allegations below demonstrates, the plaintiff failed to present
evidence from which a reasonable trier of fact could conclude that
the defendant knew or should of known of the harassment and failed
to take prompt remedial action.
Plaintiff alleged and testified that throughout his employment
with the defendant, Broussard had a noose hanging in his bookcase.
Plaintiff testified that he mentioned it to Broussard and reported
it to Amond during the time of the Jena Six trial.

Plaintiff

testified further that he never told Amond that he found it
offensive and wanted it taken down, and never brought it to the
attention of their supervisors.

This is consistent with the

statements of Lee and Smith in their affidavits - plaintiff never
complained to them about the presence of the noose.37
Plaintiff alleged and testified that in July 2009 he heard
another BREC employee make a racial comment about President Obama
and his appointment of a woman to the Supreme Court.38

According

to the plaintiff, the incident happened in Broussard’s office, and

37

Plaintiff depo., pp. 32-37. Lee and Smith also stated that
their offices are in a different location, and they never observed
the noose in Broussard’s office. Lee and Smith affidavits, ¶ 7.
38

Plaintiff stated that the comment was made by Gary Cole who
was an electrician, not a supervisor. Plaintiff depo., p. 43-44.
32

Amond, who was in the room at the time, laughed at the comment.
The group disbursed when they discovered the plaintiff overheard
the comment.

Plaintiff testified that he documented the incident

but he never complained to anyone about it.39
Plaintiff alleged and testified that in August 2010 he found
an email entitled “WHITE Pride” in the front seat of his car which
was parked in the BREC parking lot.

One of the email recipients

listed was Broussard, but the plaintiff did not know the person who
sent the email.40

Plaintiff also did not know or attempt to find

out who put the email in his car.

Plaintiff testified that he did

not discuss the email with any of his supervisors or co-workers.
He did not complain about the email until he filed his Complaint.41
Plaintiff alleged numerous instances of harassment related to
his co-worker, Hano. Plaintiff claimed that Hano was provided more

39

Plaintiff depo., pp. 42-44.
Plaintiff stated in his
affidavit that the day it happened he complained to Broussard.
Record document number 39-3, Exhibit 12, Watkins affidavit, ¶ 1.
To the extent a party’s affidavit contradicts his prior deposition
testimony without explanation, he cannot use it to create a genuine
issue of material fact for trial. Doe v. Dallas Ind. School Dist.,
220 F.3d 380 (5th Cir. 2000); Avina v. JP Morgan Chase Bank, N.S.,
413 Fed.Appx. 764 (5th Cir. 20 ).
However, in this case the
contradiction is of no consequence, since even if the plaintiff
complained to Broussard, there is still no evidence of his
complaining to Lee, Smith or any other higher-up BREC official.
40

The person who sent the email was not a BREC employee. Trim
affidavit, ¶ 14.
41

Plaintiff depo. pp. 37-40.
Plaintiff stated in his
Complaint that he complained to Amond, but did not state this in
his deposition testimony. Plaintiff depo., p. 39-40.
33

favorable working conditions in the new shop, whereas he did not
have access to the shop and its more favorable accommodations and
equipment.

Lee and Smith stated in their affidavits that the

plaintiff did not complain to them about this issue prior to the
filing of his October 21, 2011 EEOC charge, or complain to them
about the manner in which he was given a shop key.42

Plaintiff

provided no evidence to dispute these statements.43
Furthermore, the plaintiff presented no evidence to contradict
the information contained in Broussard and Amond’s affidavits - the
new shop as well as the furniture and equipment in the shop were
intended to be used by all employees and not designated solely for
Hano.44

Likewise, the plaintiff testified that he did not know

whether

Hano

was

the

only

one

who

could

use

the

shop

accommodations, and acknowledged that no one ever told him that he
could not use the items and equipment in the shop.

Consequently,

the plaintiff’s affidavit, in which he states that Broussard made
clear

that

plaintiff,

42

the
is

shop

was

Hano’s

inconsistent

with

area
his

and

off

limits

deposition

to

the

testimony.45

Lee and Smith affidavits, ¶¶ 8 and 10.

43

In his deposition the plaintiff acknowledged that he
primarily worked in the field and that Hano primarily worked in the
shop. Plaintiff testified that he preferred to work in the shop.
Plaintiff depo., pp. 68, 75-76.
44

Broussard and Amond affidavits, ¶ 5.

45

Plaintiff depo., pp. 65-66, 118-22; Watkins affidavit, ¶¶
(continued...)
34

Although the plaintiff objected to the manner in which he was
provided a key, he did not dispute that his supervisor provided him
with one.
Plaintiff claimed that Hano was provided training but he was
denied training.

Plaintiff testified in his deposition that Hano

needed training. Moreover, the plaintiff testified that during his
employment with BREC he never asked his supervisors for any
training on new equipment or any other training.

Again, the

plaintiff failed to present any evidence that he complained to any
of his supervisors, including Lee or Smith, that he was subject to
harassment by being denied training that was being provided to a
similarly situated white co-worker.46
Plaintiff claimed racial harassment by being instructed to act
as a helper to Hano.

In his deposition the plaintiff testified

that he was sometimes asked to go out and help Hano complete a job
assignment, but he acknowledged that the circumstances under which
he was instructed to help Hano were unlike those that indicated he
was working as a “helper.”47

Furthermore, the plaintiff came

forward with no evidence to dispute the defendant’s evidence that
the plaintiff never complained about this alleged harassment to

45

(...continued)
17 and 18.
46

Plaintiff depo., pp. 73-76.

47

Plaintiff depo., pp. 90-96.
35

Amond, Lee or Smith.48
Plaintiff alleged an instance of harassment in July 2011
involving Hano and another co-worker, Jeff Needeman.49

Again, the

plaintiff failed to come forward with any evidence to dispute the
defendant’s

evidence

that

if

the

plaintiff

considered

Hano’s

comment to Needeman as racial harassment, he never brought it to
the attention of his supervisors Lee or Smith.50
With regard to plaintiff’s claims based on actions that were
taken after his initial EEOC charge - a ladder and tools he needed
to perform his job were taken from his truck, vandalism of his
truck and defacing his job assignment sheets - it is difficult to
discern whether the plaintiff is claiming that these alleged acts
were racial harassment, retaliation or both. Nevertheless, each of
these allegation is addressed below in the context of examining any
summary judgment evidence supporting the allegations and whether
the defendant had knowledge and failed to take prompt remedial
action.
With regard to the plaintiff’s allegations of vandalism to his

48

Lee and Smith affidavits, ¶ 9; Amond affidavit, ¶ 8.

49

This incident involved a comment made by Needeman directly
to Hano, where Hano made a comment back to Needeman referring to
the “Afro-pic” Needeman had found during a work assignment.
Plaintiff was in the room during the incident, but there is no
evidence that the exchange between Hano and Needeman involved the
plaintiff. Plaintiff depo., pp. 77-79.
50

Lee and Smith affidavits, ¶ 11.
36

truck that resulted in a broken winch, the plaintiff acknowledged
that he was speculating, but nonetheless believed that someone
intentionally

caused

the

damage.

Plaintiff

reported

it

to

Broussard and documented the damage, but there is no evidence that
he ever reported it to Lee or Smith.51
With regard to tools he needed to perform his job and a ladder
allegedly being taken from his truck, the plaintiff presented
evidence that he advised Broussard, Amond, Lee and Smith of this
complaint.

Assuming this was a complaint of racial harassment or

retaliation, the plaintiff presented no evidence that the defendant
failed to take prompt remedial action to address the complaint.
Although he disagreed with the action taken by his supervisors, the
plaintiff acknowledged that when he reported the problem and his
belief that Hano took his tools, he was told to make a list of the
missing tools and authorization would be obtained to purchase
replacements.

Plaintiff testified that he got the new tools he

needed and acknowledged that he never put the ladder on the list.52

51

Plaintiff
affidavits ¶ 8.

depo.,

pp.

110-13,

52

122-26;

Lee

and

Smith

Plaintiff depo., pp. 46-50, 53-61, 117-18.
Plaintiff’s
testimony is consistent with the document the plaintiff submitted
that was authored by Smith and dated November 3, 2011.
Record
document number 42-3, Exhibit 13.
This document recounts the
plaintiff’s meeting with Lee and Smith about the missing tools and
the action taken to address it.
The document shows that the
plaintiff could not say for sure that Hano took the tools.
Nonetheless, his supervisors told him to make a list of the tools
needed and the purchase would be authorized.
37

Finally, the plaintiff’s alleged that his assignment sheet was
defaced, but no action was taken when he reported it on February 3,
2012 to Trim in Human Resources.

Plaintiff testified that he did

not know who did it or if it was a discriminatory act.

Accepting

the plaintiff’s statements that he did report the incident, a
reasonable trier of fact could not infer that from the plaintiff
reporting this one event that the defendant knew or should have
known of alleged racial harassment but failed to stop it.
The uncontradicted summary judgment evidence shows that when
the plaintiff was asked by Trim and Smith about the allegations in
his EEOC charge of race discrimination related to his co-worker
Hano, the plaintiff either refused or declined to discuss his
complaints.53

This is consistent with the plaintiff’s testimony

where he admitted that, other than the incident with his assignment
sheet, he never complained to anyone in human resources about any
other alleged acts of discrimination.54

Notably, this incident was

included in the plaintiff’s EEOC charge filed on August 2, 2012,
which did not include any allegations of race discrimination or

53

Trim affidavit, ¶ 9; record document number 42-3, Exhibit
13.
Plaintiff acknowledged that he received BREC’s employee
handbook that included information about workplace harassment and
how to report it. Watkins affidavit, ¶ 38; record document number
42-4, Exhibit 35.
54

Plaintiff depo., pp. 106-07, 175-77.
38

harassment, only retaliation.55 Considered as a whole, the evidence
related to this alleged incident, fails to create a genuine dispute
for trial on the question of whether the defendant knew or should
have known of the harassment and failed to promptly remedy it.
Because the harassment alleged by the plaintiff was committed
either by co-workers or supervisors who did not have authority to
take tangible employments actions, the plaintiff has the burden of
proving

that

his

employer

knew

or

should

have

known

harassment and failed to take prompt remedial action.

of

the

The above

analysis demonstrates that the evidence is insufficient for a
reasonable trier of fact to infer that the defendant knew or should
have know of alleged racial harassment against the plaintiff and
failed to act promptly to remedy it.
Louisiana Whistleblower Claim Under LSA-R.S. 23:967
An essential element of a plaintiff’s claim under LSA-R.S.
23:967 is that the plaintiff must prove that he disclosed or
threatened to disclose a workplace act or practice that is an
actual violation of state law.
Plaintiff’s
defendant

claim

retaliated

under

against

this
him

state
for

statute

complaining

is

that

about

the
race

discrimination, which is conduct that violates state law. However,
under

LSA-R.S.

55

23:967,

unlike

the

federal

Record document number 22-3, Exhibit D.
39

anti-retaliation

provision under Title VII, the plaintiff must prove that the
workplace act or practice that he complained about and for which he
was subject to retaliation, actually violated state law.

Because

the plaintiff failed to come forward with sufficient evidence to
support his claim of race discrimination under the LEDL, he cannot
establish this essential element of his state law whistleblower
claim.

Therefore, summary judgment will be granted as to this

supplemental state law claim.
Conclusion
Accordingly,

the

Motion

for

Summary

Judgment

filed

by

defendant Recreation and Park Commission for the Parish of East
Baton Rouge is granted on the plaintiff’s claims under Title VII,
42

U.S.C.

§

2000e-2(a)(1),

and

the

Louisiana

Employment

Discrimination Law, LSA-R.S. 23:332, for disparate treatment and
hostile work environment based on race, and on the plaintiff’s
retaliation claims under Title VII.

Summary judgment is also

granted to the defendant on the plaintiff’s retaliation claim under
the Louisiana Whistleblower Statute, LSA-R.S. 23:967.
A separate judgment will be entered in due course.
Baton Rouge, Louisiana, December 26, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

40