Enclarde v. LA DOTD et al

Filing 32

RULING granting 26 Defendants' Motion for Summary Judgment. Signed by Magistrate Judge Stephen C. Riedlinger on 2/11/2014. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

GEORGE R. ENCLARDE
CIVIL ACTION
VERSUS
NUMBER 13-56-SCR
LOUISIANA’S (LaDOTD), ET AL
RULING ON MOTION FOR SUMMARY JUDGMENT
Before

the

court

is

the

Defendants’

Motion

for

Summary

Judgment filed by defendants Louisiana Department of Transportation
and Development, Stephanie Ducote and Kathy Horsfall.
document number 26.

Record

The motion is opposed.1
Background

Pro se plaintiff George R. Enclarde filed this action alleging
several federal and state law claims against the defendants arising
out

of

his

employment

Transportation

and

with

the

Development

from

termination

on

October

employment,

his

direct

7,

2011.

supervisor

Louisiana
July

12,

Department
2010

until

Throughout

the

was

Horsfall,

Internal Affirmative Action Manager, and

Kathy

of
his

plaintiff’s
State

Stephanie Ducote was the

Compliance Programs Director and appointing authority. In his
verified complaint the plaintiff alleged that his employer, Ducote
and Horsfall discriminated against him based on his race, black,
and retaliated against him in violation of Title VII and the First
1

Record document number 30.

Amendment.

Plaintiff

also

alleged

the

defendants

violated

Louisiana civil service rules and committed intentional torts in
violation of state law.
Defendants now move for summary judgment as to all of the
claims

alleged

by

the

plaintiff.

Defendants

submitted

the

following evidence in support of their motion: (1) Defendants
Exhibit 1, the declaration of Stephanie Ducote; (2) Exhibit A,
attached to Ducote’s declaration, consisting of various documents
related to the plaintiff’s hiring; (3) Exhibit B, attached to
Ducote’s declaration, consisting of a June 30, 2011 letter advising
the plaintiff that he was not being recommended at that time for
permanent status, and the reasons for the decision; (4) Exhibit C,
attached to Ducote’s declaration, consisting of a copy of the
plaintiff’s performance planning and review (“PPR”) for the rating
period July 1, 2010 through June 30, 2011 wherein the plaintiff
received an overall rating of “Needs Improvement;” (5) Exhibit D,
attached to Ducote’s declaration, consisting of a letter of caution
dated September 23, 2011 issued to the plaintiff and signed by
Ducote, cautioning the plaintiff about

allowing enough time for

all levels of review and the necessity of meeting deadlines; (6)
Exhibit E, attached to Ducote’s declaration, consisting of Ducote’s
October 7, 2011 letter to the plaintiff notifying him that he was
being terminated effective October 7, 2011; (7) Defendants Exhibit
2, declaration of Kathy Horsfall; (8) Exhibits A-C, attached to

2

Horsfall’s declaration, consisting of documents supporting her
assessment in June/July 2011 that the plaintiff’s probationary
status should continue because his work needed improvement due to
untimely submission of projects, data entry errors, and substandard
writing

skills;

(9)

Defendants

Exhibit

3,

excerpts

from

the

plaintiff’s deposition; and, (10) Defendants Exhibit 4, plaintiff’s
answers and responses to defendants’ first set of interrogatories,
request for production of documents, and request for admissions.
Based on the applicable law and the analysis that follows, the
defendants’ Motion for Summary Judgment is granted.
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©), 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©, 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.
252, 106 S.Ct. at 2512.
metaphysical

doubt

as

Anderson, 477 U.S. at

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.
3

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.
Title VII Race Discrimination Claims
The well-established McDonnell Douglas2 framework is applied
to

consideration

of

race

discrimination

claims

brought

under

federal. To establish a prima facie case of race discrimination,
the plaintiff must demonstrate that he is:
2

(1) a member of a

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817 (1973).
4

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
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

5

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.

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

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

sufficient

evidence

to

find

that

the

employer’s

asserted

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

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,

a

reasonable

6

fact

finder

could

infer

discrimination.

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
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
7

a motivating factor for the defendant’s adverse employment action.
Roberson v. Alltell Information Services, 373 F.3d 647, 652 (5th
Cir. 2004).
Plaintiff may also establish a violation of Title VII 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
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.
To

hold

discrimination

an
has

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,

8

Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).3

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 was negligent because it knew or should have
known of the harassment and 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
3

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).
9

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
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).
The test for establishing a wage discrimination claim under
Title VII is substantially similar to that under the Equal Pay Act.
The plaintiff must prove that he is a member of a protected class
and

was

paid

less

than

a

non-member

for

work

requiring

substantially the same responsibility. Plemer v. Parsons-Gilbane,
713

F.2d

1127,

1137

(5th

Cir.1983);

Pittman

v.

Hattiesburg

Municipal Separate School District, 644 F.2d 1071, 1074 (5th
Cir.1981).

10

First Amendment Retaliation Claim
Under

42

U.S.C.

§

1983

a

plaintiff

must

establish

the

deprivation of a right secured by the Constitution or laws of the
United States, committed by a person acting under color of state
law.

Southwestern Bell Telephone, LP v. City of Houston, 529 F.3d

257,

260 (5th Cir. 2008).4

Plaintiff’s § 1983 claim in this case

is grounded on the First and Fourteenth Amendments.5
Amendment

protects

a

public

employee’s

right,

The First
in

certain

circumstances, to speak as a citizen addressing matters of public
concern. A First Amendment retaliation claim requires proof of the
following elements: (1) an adverse employment action; (2) speech
involving a matter of public concern; (3) the interest in speaking
outweighs the employer’s interest in promoting efficiency in the
workplace, and (4) the employee’s speech motivated the employer’s
adverse employment action. Charles v. Grief, 522 F.3d 508, 510, n.
2 (5th Cir. 2008).
include

Adverse employment actions against an employee

discharges,

demotions,

refusals

to

hire,

refusals

to

4

The state of Louisiana is not a person subject to suit under
§ 1983. Will v. Michigan Dept. of State Police, 491 U.S. 581, 109
S.Ct. 2304 (1989).
5

Plaintiff alleged in his verified complaint that he was
retaliated against for exercising his rights to free speech and
expression under the First Amendment.
In their memorandum the
defendants failed to cite the specific law applicable to this
claim, but they did argue that the summary judgment evidence
establishes they are entitled to summary judgment on any alleged
retaliation claim. Therefore, this claim will be addressed in this
motion. Rule 56(e), Fed.R.Civ.P.
11

promote and reprimands.

Harrington v. Harris, 118 F.3d 359, 365

(5th Cir. 1997); Breaux v. City of Garland, 205 F.3d 150, 158 (5th
Cir. 2000); Gibson v. Kilpatrick, 734 F.3d 395, 401 (5th Cir.
2013).
The Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S.
410, 126 S.Ct. 1951 (2006), added a threshold layer to this
analysis.

Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008).

Garcetti holds that “when public employees make statements pursuant
to their official duties, the employees are not speaking as
citizens for First Amendment purposes.” Garcetti, 547 U.S. at 421,
126 S.Ct. at 1960.

Therefore, the court must initially determine

whether the employee’s speech is pursuant to his official duties.
Speech that is required by a plaintiff’s job duties or is part of
his official duties is not protected by the First Amendment.

Id.;

Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693-94 (5th
Cir.

2007).

As

summed

up

by

the

Fifth

Circuit

in

Davis:

“Activities undertaken in the course of performing one’s job are
activities pursuant to official duties and not entitled to First
Amendment protection.”

Davis, 518 F.3d at 313.

State Law Claim - Intentional Infliction of Emotional Distress
To recover for intentional infliction of emotional distress
under Louisiana law, a plaintiff has the burden of proving: (1)
that the conduct of the defendants was extreme and outrageous; (2)

12

that the emotional distress suffered by him was severe; and (3)
that the defendants desired to inflict severe emotional distress or
knew

that

severe

emotional

distress

would

be

substantially certain to result from their conduct.

certain

or

White v.

Monsanto Co., 585 So.2d 1205, 1209-10 (La. 1991); Moresi v. State,
Department of Wildlife and Fisheries, 567 So.2d 1081, 1095 (La.
1990); Deus v. Allstate Insurance Co., 15 F.3d 506, 514 (5th Cir.
1994).

The

conduct

complained

of

must

be

so

outrageous

in

character and so extreme in degree that it goes beyond all possible
bounds of decency and is regarded as utterly intolerable in a
civilized community.

Id.

Liability arises only where the mental

suffering or anguish is extreme, and the distress suffered must be
such that no reasonable person could be expected to endure it.
White, 585 So.2d at 1210.
Louisiana law sets a high threshold for establishing a claim
for intentional infliction of emotional distress in a workplace
environment.

See, Smith v. Amedisys, 298 F.3d 434, 449-50 (5th

Cir. 2002), citing, White, 585 So.2d at 1209-10; Deus, 15 F.3d at
516.

Liability is usually limited to cases involving a pattern of

deliberate, repeated harassment over a period of time, and the
resulting

mental

unendurable.

anguish

or

suffering

Bustamento v. Tucker,

must

be

extreme

or

607 So.2d 532, 538 (La.

1992)(outrageous conduct must cause serious emotional harm to the
plaintiff); White, 585 So.2d at 1210 (distress suffered must be
13

such that no reasonable person could be expected to endure it;
liability arises only where the mental suffering or anguish is
extreme).
Analysis
Title VII Race Discrimination Claims
Defendants argued that summary judgment should be granted
dismissing the plaintiff’s Title VII claims that he was terminated
and harassed because of his race and paid less as compared to other
white employees.

Defendants argued that the plaintiff cannot

establish the second and fourth elements of a prima facie case that he was qualified for his position and that he was treated less
favorably than similarly situated white employees.6 Defendants
argued that even if the plaintiff can establish a prima facie case,
the plaintiff has no evidence to dispute the evidence which
establishes the legitimate, non-discriminatory reasons for their
employment actions.
Defendants

have

presented

summary

judgment

evidence

to

establish the non-discriminatory reasons for their employment
decisions.

Therefore,

for

purposes

of

this

motion

all

the

competent summary judgment evidence will be considered in light of
the plaintiff’s burden of proving that race was a motivating factor
6

Defendants did not dispute that the plaintiff is a member of
a protected class and that he suffered an adverse employment
action. Defendants arguments related to the prima facie element of
qualifications are directed to their legitimate, non-discriminatory
reasons for terminating the plaintiff’s employment.
14

in setting his salary and in terminating his employment.
The following summary of undisputed facts contained in the
record establishes the defendants’ legitimate, non-discriminatory
reasons.

Defendants submitted evidence which showed that the

plaintiff was hired in the position of CPS 3 on the recommendation
of Ducote, and based on Ducote’s recommendation was also paid a
starting annual salary of $40,000. This salary was higher than the
beginning salary for a CPS 3.7 From the plaintiff’s hire on July
12, 2010 until his termination on October 7, 2011, the plaintiff
was a probationary employee within the agency’s Title VII unit.
Plaintiff’s duties included working on the agency’s affirmative
action plan, and writing reports, recommendations and letters
related to his interviews/investigations of employee complaints of
discrimination and harassment.
After

almost

a

year

of

employment

the

plaintiff’s

job

performance was reviewed by his direct supervisor, Horsfall and
Ducote.

Plaintiff’s overall rating was a “2" which on the PPR

scale equated to a assessment that the plaintiff’s job performance
needed improvement. Some of the specific areas where the plaintiff
was rated the lowest and given a “1" or a “2" contained the
following explanations: (1) timeliness of investigations and report
submissions should be improved on by adhering to deadlines mandated

7

Without the adjustment to $40,000, the plaintiff’s beginning
salary would have been $29,604 annually. Record document number
26-3, Exhibit 1, Ducote declaration, attached Exhibit A, pp. 4-6.
15

by federal law; (2) the Affirmative Action Plan completed one week
before required submission date, but had many errors that required
hours of corrections; and (3) written letters and reports were
minimally accurate and required numerous modifications, sometimes
requiring multiple submissions before documents were accepted for
approval/signature.8
In conjunction with this PPR, Horsfall also sent a letter to
the plaintiff that was dated June 30, 2011 and signed by Ducote.
The letter essentially restated the deficiencies in job performance
noted in the PPR, and informed the plaintiff that his permanent
status was not being recommended and his status as a probationary
employee was being extended for 12 months to allow time to continue
to evaluate his work.9

Approximately three months later Ducote

issued the plaintiff a letter of caution on September 23, 2011
related

to

two

of

the

same

deficiencies noted in his PPR.

issues

where

the

plaintiff

had

The letter essentially cautioned

the plaintiff about taking the initiative and appropriate action to

8

In his opposition memorandum the plaintiff appeared to argue
that there is no evidence that the documents are his “actual work
related submissions.” However, Horsfall’s declaration establishes
this fact and the plaintiff offered no competent summary judgment
evidence to dispute it. Horsfall declaration, ¶ 6.
9

Record document number 26-3, Exhibit 1, Ducote declaration,
attached Exhibits B and C; record document number 26-4, Exhibit 2,
Horsfall declaration, attached Exhibits B and C. Also attached to
Horsfall’s declaration were examples of the plaintiff’s reports and
other work that had been corrected and revised. Horsfall
declaration, ¶ 6, attached Exhibit A.
16

allow adequate review time to meet assigned deadlines, and to
correct the errors on written work before submitting it to his
supervisor Horsfall.10

Shortly thereafter, on October 7, 2011 a

letter was issued and signed by Ducote that informed the plaintiff
of his termination effective on that same date.11
In response to the defendants’ motion, the plaintiff has
failed

to

come

with

any

evidence

to

dispute

their

non-

discriminatory reasons or otherwise show that the defendants’
decision was motivated by race.12

Plaintiff stated in his verified

complaint that he received an excellent rating at his midyear
evaluation

in

January

counseling

about

his

2011,

and

writing

that

skills

he

was

before

eligibility for permanent status in June 2011.

not

given

review

of

any
his

Plaintiff also

stated that the defendants violated various state agency policies
and

procedures.

However,

none

of

these

facts

dispute

the

deficiencies stated in the plaintiff’s June 30, 2011 PPR, or
otherwise contradict the defendants’ nondiscriminatory reasons for
terminating the plaintiff in October 2011.
Plaintiff also alleged in his verified complaint that he was

10

Record document number 26-3, Exhibit 1, Ducote declaration,
attached Exhibit D.
11

Id., attached Exhibit E.

12

Although the plaintiff filed an opposition memorandum, he
did not submit any evidence to support his arguments. Thus, the
only evidence for the court to consider in opposition to the motion
is the information contained in the plaintiff’s verified complaint.
17

terminated for alleged abuse of his state credit card, and that
Horsfall, who is white, committed the same or similar offense and
was not disciplined.13

Yet, the plaintiff did not present specific

facts about any incident involving Horsfall from which a reasonable
juror could conclude that, under nearly identical circumstances,
Horsfall

received

more

favorable

treatment.14

Similarly,

the

plaintiff alleged that two white employees hired as compliance
specialists were paid significantly higher salaries, but he did not
come

forward

with

any

evidence

to

support

this

conclusory

allegation.

13

Plaintiff did not allege that after termination, he was
replaced by someone outside the protected class.
14

It is undisputed that Horsfall’s position and job title were
entirely different from the plaintiff. Horsfall was a Compliance
Program Specialist 4, was the plaintiff’s direct supervisor and
held the position of Internal Affirmative Action Manager. Record
document number 26-4, Exhibit 2, Horsfall declaration, ¶¶ 1-4.
For a race discrimination claim where the plaintiff alleges
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, 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).
18

Given this lack of evidence and the undisputed fact that
Ducote sought and approved the plaintiff receiving a salary of more
than $10,000 above the normal starting salary for the CPS 3
position, a reasonable juror could not find that the plaintiff was
paid less than someone outside his protected class for work
requiring substantially the same responsibility.
To the extent the plaintiff claimed that he was subject to an
abusive or hostile work environment based on racial harassment,
this claim is also unsupported. Plaintiff generally alleged in his
verified complaint that various aspects of the PPR conducted by his
supervisors, such as criticism of his reports and his interactions
with

internal/external

customers,

deadlines, constituted “harassment.”

and

his

failure

to

meet

A reasonable trier of fact

could not conclude based on such evidence that the plaintiff’s work
environment was objectively severe or pervasive, i.e., the work
environment was such that a reasonable person would find it hostile
or abusive.

Plaintiff also has the burden of proving that any

alleged harassment was because of his race.

Once again, the

plaintiff failed to present any competent summary judgment evidence
that similarly situated white employees received more favorable
treatment in their evaluations than he did, or any other evidence
from which a reasonable trier of fact could infer that the actions
the plaintiff complains about were motivated by race.
Without

any

evidence

to

dispute

19

the

legitimate,

non-

discriminatory reasons given by the defendants for the plaintiff’s
termination, or evidence that similarly situated persons outside
the protected class and under nearly identical circumstances were
treated more favorably, no reasonable juror could find that race
was a motivating factor in the plaintiff’s termination. Nor is
there any evidence from which a reasonable jury could infer that
because of his race the plaintiff was subject to harassment or paid
less than a non-member of the protected class for substantially the
same work. The above analysis demonstrates that the plaintiff has
failed to come forward with sufficient evidence to create a genuine
dispute for trial on his claims of race discrimination under Title
VII.15
First Amendment Retaliation Claim
With regard to the plaintiff’s claim of First Amendment
retaliation, the plaintiff alleged in his verified complaint that
he had stickers on his personal vehicle, he was told to remove
them, and was verbally counseled about engaging in prohibited
political activity.
One of the essential elements of a First Amendment retaliation
15

It is unclear from the complaint whether the plaintiff is
alleging a Title VII claim against Ducote and Horsfall. However,
to the extent the plaintiff does so these claims would be dismissed
as a matter of law. It is well-established that relief under Title
VII is available only against an employer, and individual
defendants who do not meet the Title VII definition of employer
cannot be held liable under Title VII. Grant v. Lone Star Co., 21
F.3d 649, 651-53 (5th Cir. 1994).
20

claim is the existence of an adverse employment action.

Under the

applicable law, the plaintiff’s statement that he was verbally
counseled for engaging in political activity does not constitute an
adverse employment action.

To the extent the plaintiff alleged he

was terminated in retaliation for exercising his First Amendment
rights,16 this claim also fails.

For the reasons explained above,

the plaintiff has no evidence to dispute the defendants’ legitimate
reasons

for

his

termination,

nor

any

evidence

from

which

a

reasonable juror could find that his alleged First Amendment
protected conduct was a motivating factor in the decision to
terminate his employment.
State Law Claim - Intentional Infliction of Emotional Distress
Under

Louisiana

law,

a

plaintiff

claiming

intentional

infliction of emotional distress has the burden of proving that the
conduct of the defendants was extreme and outrageous, and that the
emotional distress suffered by him was severe. The record is devoid
of any evidence from which a reasonable trier of fact could infer
that the defendants’ alleged conduct toward the plaintiff was
extreme and outrageous,17 or that the plaintiff suffered severe

16

The pleadings of pro se litigants must be liberally
construed. See, Estelle v. Gamble, 492 U.S. 97, 106 97 S.Ct. 285,
292 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594
(1972).
17

Extreme and outrageous conduct must be so outrageous in
character and extreme in degree that it goes beyond all possible
(continued...)
21

emotional

distress

as

a

result

of

the

defendants’

actions.18

Defendants are entitled to summary judgment as to this state law
claim.
Conclusion
Defendants moved for summary judgment on all federal and state
law claims alleged by the plaintiff.

Based on the applicable law

and analysis above, the record establishes that the there is no
genuine dispute for trial on any of the plaintiff’s claims alleged
under Title VII, 42 U.S.C. § 1983 and state law, and the defendants
are entitled to summary judgment.
Accordingly, the Defendants’ Motion for Summary Judgment is
granted.

A separate judgment will be entered in due course.

Baton Rouge, Louisiana, February 11, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

17

(...continued)
bounds of decency and is regarded as utterly intolerable in a
civilized community. The mental suffering and distress must be such
that no reasonable person could be expected to endure it. White,
supra.
18

See, record document number 26-5, Plaintiff depo., pp. 107-

11.
22