McKinney v. State of Louisiana
Filing
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RULING granting in part 12 Motion for Summary Judgment. The Court REMANDS the case to the 19th Judicial District court of East Baton Rouge Parish, Louisiana. Signed by Judge James J. Brady on 06/10/2014. (CGP) Modified on 6/10/2014 to edit text (CGP). (Main Document 22 replaced on 6/10/2014) (CGP).
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHARON MCKINNEY
CIVIL ACTION
VERSUS
NO. 12-789-JJB-RLB
STATE OF LOUISIANA, THROUGH
DEPARTMENT OF TRANSPORTATION
AND DEVELOPMENT
RULING ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the defendant’s Motion (doc. 12) for Summary
Judgment. The plaintiff Sharon McKinney opposes the motion. (Doc. 16). Jurisdiction is based
on 28 U.S.C. § 1331. Oral argument is not necessary. For the reasons provided herein, the Court
GRANTS IN PART the defendant’s Motion (doc. 12) for Summary Judgment.
Background
Defendant Department of Transportation and Development (DOTD) originally hired
plaintiff Sharon McKinney on March 4, 1996 as a clerk, and in 2007, the department promoted
her to the position of Administrative Program Manager II. From her initial hiring, McKinney
worked at DOTD’s District 62 office located in Hammond, Louisiana. During the events that
form the basis of the plaintiff’s complaint, McKinney worked under the supervision of Sheila
Tate, who served as the Assistant District Administrator at the District 62 office. “From July
2010 until July 2012, Connie Standige served as District Administrator of District 62” and
“possessed supervisory authority over all employees working at District 62.” (Doc. 12-1, p. 2–3).
Finally, at all relevant times, Rhett Desselle served as the Assistant Secretary of Operations for
DOTD and retained supervisory authority over District 62.
The plaintiff claims that she “was subjected to retaliation and reprisal by defendant[]
because of . . . providing testimony and evidence in an EEOC/LCHR investigation involving
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disability discrimination and retaliation filed by other employees of [d]efendant DOTD and
involving Tate.”1 (Doc. 1-2, p. 1–2, ¶ 5). Specifically, the plaintiff claims that she “identified
incidents of unlawful discrimination and retaliation which she witnessed as an employee of
defendant DOTD.” (Doc. 1-2, p. 2, ¶ 5). Consequently, the plaintiff alleges that she suffered
retaliation and harassment, particularly at the hands of Sheila Tate. Id.
On May 24, 2011, the plaintiff lodged an official grievance with DOTD regarding Ms.
Tate’s alleged improper conduct and harassment. The plaintiff subsequently requested to be
removed from Ms. Tate’s direct supervision. As part of “Step 2” of the grievance process,
Connie Standige spoke with Ms. Tate regarding the plaintiff’s complaint in order to address the
plaintiff’s grievance. Nevertheless, because Ms. McKinney did not feel satisfied with the
response, she sought to proceed to “Step 3” of the grievance process. After a period of time,
Susan Pellegrin—Human Resources Director with DOTD—informed Ms. McKinney on July 18,
2011 that her request for a “Step 3” grievance hearing was denied and her grievance was
summarily dismissed. (Doc. 12-12, p. 9, 12–13, 31). On July 7, 2011, and prior to the conclusion
of the plaintiff’s DOTD grievance proceedings, the plaintiff provided testimony to the EEOC
regarding the alleged discrimination and retaliation perpetrated against her subordinate
employees.2
The plaintiff claims that the alleged “harassment and hostile work environment” began
when she originally requested reasonable accommodations for these DOTD employees, but
“escalated after the EEOC investigation.” (Doc. 16-13, p. 6). Thereafter, on September 8, 2011,
Rhett Desselle transferred the plaintiff from the District 62 office in Hammond to the DOTD
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These EEOC investigations involved alleged denials of reasonable accommodations for two employees working
under the plaintiff’s supervision. The plaintiff originally requested accommodations for these employees pursuant to
the ADA.
2
On September 20, 2011 and September 22, 2011, the EEOC ruled in favor of both of these employees and against
DOTD. (Doc. 16-11, p. 29–32).
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office located in Baton Rouge, Louisiana.3 (Doc. 12-5). Additionally, Ms. McKinney received a
new position with DOTD as a result of the transfer—Program Specialist III—without a change in
salary. Id. At the meeting regarding the transfer, Mr. Desselle informed the plaintiff that he was
transferring her because she “had [previously] asked to be taken out from under Tate’s
supervision.” (Doc. 12-3, p. 69). The plaintiff maintains this same position in the Baton Rouge
officer to the present day.
On November 15, 2011, the plaintiff filed an intake questionnaire with the EEOC based
on alleged “retaliation” and “harassment.” (Doc. 16-11, p. 38–43). Prior to receiving her right-tosue letter, Ms. McKinney filed the pending action in a Louisiana state court, claiming that the
retaliation and on-going harassment constituted illegal reprisal under Louisiana Revised Statutes
23:967. (Doc. 1-2, p. 3). On November 20, 2012, McKinney received her right-to-sue letter from
the EEOC and amended her complaint to include claims under Title VII, 42 U.S.C. § 2000e, et
seq. (Doc. 1-4, p. 3; doc. 16-11, p. 33). The defendant subsequently removed the case to this
Court and filed the pending motion for summary judgment, seeking judgment in its favor as to
all of the plaintiff’s claims. (Doc. 12).
Analysis
1. Summary Judgment Standard
Summary judgment is proper when “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. Rule Civ. P.
56(a). The movant must demonstrate that there is no genuine issue of material fact for trial.
When the non-moving party has the burden of proof at trial, the movant need only demonstrate
that the record lacks sufficient evidentiary support for the non-moving party’s case. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party can do this by showing that the
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This change necessitated a 110 mile commute for the plaintiff.
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evidence is insufficient to prove the existence of one or more essential elements of the nonmoving party’s case. Id. A party must support its summary judgment position by “citing to
particular parts of materials in the record” or “showing that the materials cited do not establish
the absence or presence of a genuine dispute.” Fed. Rule Civ. P. 56(c)(1).
Although the court considers evidence in a light most favorable to the non-moving party,
the non-moving party must show that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248–49 (1986). Conclusory allegations and unsubstantiated assertions
will not satisfy the non-moving party’s burden. Grimes v. Tex. Dep’t of Mental Health, 102 F.3d
137, 139–40 (5th Cir. 1996). Similarly, “[u]nsworn pleadings, memoranda or the like are not . . .
competent summary judgment evidence.” Larry v. White, 929 F.2d 206, 211 n.12 (5th Cir. 1991).
“In a motion for summary judgment, a federal district court is not called upon to make
credibility assessments of conflicting evidence.” Melancon v. Ascension Parish, 823 F. Supp.
401, 404 n.19 (M.D. La. 1993). “To the contrary, all evidence is considered in the light most
favorable to the non-movant.” Id. “Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000) (quoting Anderson, 477
U.S. at 255).
2. Title VII Harassment Claim
While the defendant argues extensively against any alleged Title VII harassment claim, it
does not appear the plaintiff is attempting to make such a claim, as there does not appear to be
any reference to such a claim in the plaintiff’s opposition. Rather, the plaintiff focuses entirely
on her retaliation and reprisal claims under Title VII and Louisiana state law. It appears the
plaintiff uses the term “harassment” to refer to the treatment she suffered in alleged retaliation
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for her EEOC-investigation participation and/or DOTD grievance, as opposed to raising a
specific harassment claim under Title VII. Furthermore, even if the plaintiff intended to state
such a harassment claim, the Court finds that she failed to sufficiently plead or delineate such a
claim. Moreover, the plaintiff fails to rebut the defendant’s arguments against such a claim or
produce evidence sufficient to raise a genuine issue of material fact. Therefore, the Court grants
summary judgment for the defendant as to any Title VII harassment claim.
3. Title VII Retaliation Claim
Based on this Court’s review, the plaintiff’s primary allegation is that the defendant’s and
its employees’ behavior constituted retaliation, in violation of Title VII. “To establish a prima
facie case of retaliation, the plaintiff must establish that: (1) [she] participated in an activity
protected by Title VII; (2) [her] employer took an adverse employment action against [her]; 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) (citing Banks v. E.
Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003); Gee v. Principi, 289 F.3d 342,
345 (5th Cir. 2002)). “If the plaintiff makes a prima facie showing, the burden then shifts to the
employer to articulate a legitimate, . . . nonretaliatory reason for its employment action.” Id. at
557 (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000); Gee, 289
F.3d at 345). “The employer’s burden is only one of production, not persuasion, and involves no
credibility assessment.” Id. (citing Russell, 235 F.3d at 222). “If the employer meets its burden of
production, the plaintiff then bears the ultimate burden of proving that the employer’s proffered
reason is not true but instead is a pretext for the real . . . retaliatory purpose.” Id. The plaintiff
accomplishes this “by showing that the adverse action would not have occurred ‘but for’ the
employer’s retaliatory motive.” Feist v. Louisiana, Dept. of Justice, Office of the Atty. Gen., 730
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F.3d 450, 454 (5th Cir. 2013) (citing University of Texas Southwestern Medical Center v.
Nassar, 133 S.Ct. 2517, 2533 (2013)). “In order 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.” Id. (citing Long v. Eastfield College, 88 F.3d
300, 308 (5th Cir. 1996)).
a. Prima Facie Case
Turning to the initial question of whether the plaintiff made a prima facie showing, it
appears undisputed that the plaintiff engaged in “protected activities” when she filed the DOTD
grievance on May 24, 2011 and when she participated in the EEOC investigation regarding her
subordinate employees. Nevertheless, the defendant contends that the only adverse employment
action which the plaintiff can establish is her transfer to Baton Rouge and position reassignment,
as opposed to the plethora of ancillary actions she complains about in her pleadings. “A
retaliation claim under Title VII and the ADA, ‘unlike the substantive provision, is not limited to
discriminatory actions that affect the terms and conditions of employment.’” Butler v. Exxon
Mobil Corp., 838 F. Supp. 2d 473, 496–96 (M.D. La. 2012) (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 64 (2006)). “[A] retaliation claim may rest on an action that ‘a
reasonable employee would have found . . . [to be] materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008)
(quoting Burlington, 548 U.S. at 68). As this Court previously provided with regards to “adverse
employment action”:
[C]hastisement by superiors and ostracism by co-workers “do not rise to the level
of material adversity but instead fall into the category of ‘petty slights, minor
annoyances, and simple lack of good manners’ that the Supreme Court has
recognized are not actionable retaliatory conduct.” Thus, as a matter of law,
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Plaintiff’s allegations of workplace criticism and job scrutiny are not adverse
employment actions for the purposes of his retaliation claims.
Butler, 838 F. Supp. 2d at 496 (quoting Stewart v. Mississippi Transp. Com’n, 586 F.3d 321, 332
(5th Cir. 2009)). Similarly, the plaintiff’s present allegations centered on job scrutiny and
chastisement from her superior Sheila Tate do not rise to the level of an adverse employment
action for purposes of a Title VII retaliation claim. Additionally, the plaintiff seemingly claims
that an alleged “lack of control” with her DOTD grievance filing and subsequent internal
investigation was the result of retaliation. (Doc. 16-1, p. 26). However, this assertion is based
entirely on the plaintiff’s subjective belief, as there is no evidence of a “lack of control,” and
instead, ample evidence that the DOTD complied with the requisite process and maintained
control over her grievance process. (Doc. 12-12). But, regardless of the foregoing, the plaintiff
still succeeded in making the necessary, prima facie showing with regards to an adverse
employment action, as there is no dispute that the plaintiff’s transfer to Baton Rouge and position
reassignment constituted an adverse employment action.
Finally, looking at the third element, the Fifth Circuit stated that “[c]lose timing between
an employee’s protected activity and an adverse action against him may provide the ‘causal
connection’ required to make out a prima facie case of retaliation.” Richardson v. Prairie
Opportunity, Inc., 470 Fed. Appx. 282, 286 (5th Cir. 2012) (quoting McCoy v. City of
Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007)) (internal quotation marks omitted). The Fifth
Circuit previously provided that “a time lapse of up to four months has been found sufficient to
satisfy the causal connection for summary judgment purposes.” Evans v. City of Houston, 246
F.3d 344, 354 (5th Cir. 2001) (quoting Weeks v. NationsBank, N.A., 2000 WL 341257, at *3
(N.D. Tex. 2000)) (internal quotation marks omitted). The evidence shows that the plaintiff
submitted a DOTD grievance form on May 24, 2011 regarding alleged improper conduct by
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Sheila Tate and then provided testimony to the EEOC on July 7, 2011 in connection with
complaints filed by two subordinate employees. (Doc. 16-1, p. 16; doc. 16-11, p. 17–19).
Additionally, the evidence indicates that DOTD transferred the plaintiff to the Baton Rouge
office on September 8, 2011. (Doc. 16-1, p. 22). The time lapse between the initial grievance and
the transfer to Baton Rouge—less than four months—provides the requisite causal connection
necessary to make a prima facie showing. Therefore, based on Fifth Circuit precedent, and the
plaintiff’s showing with regards to the three requisite elements, this Court finds that the plaintiff
sufficiently stated a prima facie case of retaliation.
b. Nonretaliatory Reasons
As the Court finds that the plaintiff has made a prima facie showing, “the burden . . .
shifts to the employer to articulate a legitimate, . . . nonretaliatory reason for its employment
action.” McCoy, 492 F.3d at 557 (citing Russell, 235 F.3d at 222; Gee, 289 F.3d at 345). As
aforementioned, “[t]he employer’s burden is only one of production, not persuasion, and
involves no credibility assessment.” Id. (citing Russell, 235 F.3d at 222). In this matter, the
defendant puts forth three reasons for transferring and reassigning the plaintiff: (1) Ms.
McKinney previously sought to be moved from Tate’s supervision, (2) staffing at the District 62
office was higher than necessary, and (3) DOTD was seeking to improve the work environment
at District 62. The evidence, including depositions from the relevant individuals, supports a
finding that the defendant satisfied its minimal burden of producing nonretaliatory reasons for its
actions. (See doc. 12-4, p. 45–49; doc. 12-7, p. 35–38).
c. Proof of Pretext
Accordingly, as the defendant produced non-retaliatory reasons for transferring and
reassigning the plaintiff, the plaintiff now bears the burden of “proving that the employer’s
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proffered reason is not true but instead is a pretext for the real . . . retaliatory purpose.” McCoy,
492 F.3d at 557 (citing Russell, 235 F.3d at 222). As aforementioned, 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.” Feist, 730 F.3d at
454 (citing Long, 88 F.3d at 308). “To carry this burden, the plaintiff must rebut each
nondiscriminatory or nonretaliatory reason articulated by the employer.” McCoy, 492 F.3d at 557
(emphasis added) (citing Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).
In the present matter, even looking at the evidence in the light most favorable to the
plaintiff, the Court finds that the plaintiff failed to produce sufficient evidence showing that the
defendant’s non-retaliatory reasons are pretext. First, with regards to the defendant’s stated
reason that it transferred and reassigned the plaintiff due to her seeking removal from Tate’s
supervision, the plaintiff contends that this reason is pretext because the plaintiff never asked to
be moved from the Hammond office or from her position. Yet, it is undisputed that the plaintiff
did ask to be removed from Sheila Tate’s supervision. The uncontroverted evidence is that the
DOTD reviewed options for how to accommodate Ms. McKinney’s request, and the only viable
option to remove her from Tate’s supervision was to transfer and reassign her to an open position
in the Baton Rouge office. (Doc. 12-4, p. 63; doc. 12-7, p. 35–39; doc. 16-6, p. 21). Testimony
otherwise is based on pure speculation. (See doc. 16-11, p. 13). In fact, the only evidence,
outside of plaintiff’s unfounded allegations, is that the transfer was the only viable option to
remove Ms. McKinney from Sheila Tate’s supervision, as per her prior request.
Next, the plaintiff argues pretext with regards to the defendant’s reasoning that the
transfer occurred because of productivity issues and excessive staffing levels at District 62.
Specifically, the plaintiff points to the testimony of John Rollins, in which he provided that he
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did not believe that productivity was low at the District 62 business office. (Doc. 16-5, p. 9).
Further, she focuses on the lack of any other employees being moved from the group by Rhett
Desselle, despite his claim that they were strategizing to move workers out of the work group.
However, Desselle testified that two other employees were removed from the same work group
through termination and retirement, and not through a transfer like the plaintiff. (Doc. 16-6, p.
19–20). Further, Connie Standige testified that, while they did not “cut” any positions at District
62, they also did not “fill the positions when they became vacated.” (Doc. 16-7, p. 8).
Additionally, Standige testified that DOTD continuously looked into staffing levels at all
districts to make sure that a District “needed to continue with that number of employees.” (Doc.
16-7, p. 7). Moreover, the evidence shows that the position of Administrative Program Manager
II at District 62 was not filled after the plaintiff received her transfer and had not been filled as of
March 21, 2014. (Doc. 16-11, p. 5; doc. 18-2, p. 3–7).
Finally, the plaintiff claims pretext with regards to the defendant’s non-retaliatory
reasoning that it moved the plaintiff to improve District 62’s work environment. There is ample
evidence that the plaintiff and Ms. Tate did not get along throughout their work history together.
Rhett Desselle testified that the intent behind the transfer and reassignment was “a step in the
direction of trying to resolve the issues in the work environment in [the plaintiff’s] work group.”
(Doc. 12-4, p. 56). Further, Desselle, the individual transferring Ms. McKinney, testified that he
was not even aware of Ms. McKinney’s role in the EEOC investigation regarding her
subordinate employees. (Doc. 12-4, p. 58). While the plaintiff rhetorically asks why Tate was not
transferred or terminated, this does not show that the DOTD’s reason was pretext; it only raises
the issue of whether there was a better method to achieve the same goal. However, this is not
germane to the issue of whether the defendant’s reasoning for the move was motivated by
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retaliation. This is because courts are not concerned with whether or not the employer’s decision
was in error; but rather courts must determine if the decision was motivated by discriminatory
intent. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995); see also
Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 958 (5th Cir. 1993) (“The employer need only
articulate a lawful reason, regardless of what its persuasiveness may or may not be.”).
The plaintiff focuses on the reassignment letter’s reference to DOTD Secretary’s Policy
and Procedures Memorandum (PPM) Number 26 as a self-evident example that the defendant’s
reasoning is pretext. However, other than stating that PPM Number 26 is disciplinary in nature,
which appears to be accurate, the plaintiff makes no further argument as to how this document
and reference alone shows pretext. Specifically, the reassignment letter refers to Civil Service
Rules 23.10 and 23.11, in addition to PPM Number 26, as allowing for the plaintiff’s transfer and
reassignment. (Doc. 16-6, p. 27). Civil Service Rules 23:10 and 23:11 allow an appointing
authority to reassign any permanent employee to a different job title, provided it has the same
pay rate, as well as change the duty station of any permanent employee from one geographical
area to another. Id. Similarly, PPM Number 26 allows for corrective action, including
reassignment, when “any employee’s work performance, conduct, or productivity falls below
established standards.” (Doc. 16-11, p. 22). In contrast, Rhett Desselle, the individual that
initiated the transfer and that signed the reassignment letter, testified that he did not consider the
reassignment and duty change to be disciplinary in nature. (Doc. 12-4, p. 61). This Court does
not find that the mere reference to PPM Number 26 rises to the level of “a conflict in substantial
evidence” such as to overcome the defendant’s motion for summary judgment. Feist, 730 F.3d at
454 (citing Long, 88 F.3d at 308).
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Therefore, based on this Court’s review, and looking at the evidence in the light most
favorable to the non-movant, the Court finds that the plaintiff failed to satisfy her ultimate
burden. The plaintiff failed to “show ‘a conflict in substantial evidence’ on the question of
whether the employer would not have taken the action ‘but for’ the protected activity.” Id.
Accordingly, the Court must dismiss the plaintiff’s Title VII retaliation claim.
4. State Law Claim
The only possible remaining claims in this case are state law claims. Under 28 U.S.C. §
1367, [t]he district courts may decline to exercise supplemental jurisdiction over a claim . . . if . .
. the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3). As the Court has dismissed all of the claims over which it has original jurisdiction,
the Court declines to exercise supplemental jurisdiction, as only state law claims remain pending.
Accordingly, the Court will remand the case to the court from which it was originally removed,
the 19th Judicial District Court of East Baton Rouge Parish, Louisiana.
Conclusion
Therefore, the Court GRANTS IN PART the defendant’s Motion (doc. 12) for Summary
Judgment. Furthermore, the Court REMANDS the case to the 19th Judicial District Court of
East Baton Rouge Parish, Louisiana.
Signed in Baton Rouge, Louisiana, on June 10, 2014.
JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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