Smith v. Womans Hospital et al

Filing 51

AMENDED RULING AND ORDER: Defendant Woman's Hospital's 32 Motion forSummary Judgment is GRANTED. Defendant G4S Secure Solutions' 37 Motion for Summary Judgment is GRANTED. Plaintiff's Title VII discrimination claim,Plaintiff& #039;s Title VII retaliation claim, and Plaintiff's equal protection claim are DISMISSED WITH PREJUDICE pursuant to Rule 56. Woman's Hospital shall, within 21 days of this Court's original 47 Ruling and Order, file with the Court a memorandum documenting all attorney's fees for which it seeks to be reimbursed. Signed by Chief Judge Brian A. Jackson on 5/6/2016. (BLR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

EDWARD SMITH

CIVIL ACTION

VERSUS
WOMANS HOSPITAL, ET AL.

NO.: 14-00500-BAJ-RLB

AMENDED 1 RULING AND ORDER
Befor e the Court are motions for summ ary judgment filed by Defendants
Woman's Hospital (Doc. 32) and G4 Secure Solutions ("G4S") (Docs . 37, 45)
(collectively, "Defendants"). Pro se Plaintiff Edward Smit h ("Plaintiff') has filed
memor a nda in opposition (Docs. 40, 43), to which Defe nda nts have replied, (Docs. 44,
46). Jurisdiction is proper pursua nt to 28 U.S.C. §§ 1331 and 1367. For the reasons
explained herein, both motions are GRANTED.
I.

BACKGROUND

G4S provides security products and services to various companies throughout
Baton Rouge, Louisiana. (Doc. 37-1

at~

1). Woman's Hospital is one of G4S's clients .

(l d. at ,, 2). Plaintiff is one ofG4S's employees. (Doc. 32-1 at ,19).
When, in 2012, Woman's Hospital moved to a new facility, it decided to upgrade
its security force from Traditional Security Office rs ("TSO") to Custom Protection
Officers ("CPO"). (Id. at

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8- 9). Plaintiff was, at t he time, working at what is now

t he old Woman's Hospital as a TSO. (See Doc. 32-1 at ,,,, 9, 17). He therefor e sought

1

See infra p. 8 n.5.

1

to be promoted to CPO, (see Doc. 32-5 at p. 85), so as to continue to working at
Woman's Hospital's new facility. That request, however , was denied. (See Doc. 32-5
at p. 85).
Plaintiff now alleges that the fact that he was not promoted violates Title VII's
discrimination and retaliation provisions, 42 U.S.C. § 2000e-2(a), 2000e-3(a), as well
as the Fourteenth Amendment to the United States Constitution, U.S. CONST.
amend. XIV, § 1. (See Doc. 1). Plaintiff brings all of the aforementioned claims against
Woman's Hospital and his employer, G4S. (Id. ).

II.

LEGAL STANDARD

Pursuant to the Federal Rules of Civil Procedure, "[t]he [C]ourt shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ.
P. 56(a). In determining whether t he movant is e ntitled to summary judgment, the
Court views the facts in the light most favorable to the non-movant and draws all
reasonable inferences in the non-movant's favor. Coleman v. Houston Independent

School Dist. , 113 F.3d 528, 533 (5th Cir. 1997).
After a proper motion for summary judgment is made, the non-movant must
se t forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty

Lobby, Inc. , 477 U.S. 242, 250 (1986). At this stage, the Court does not evaluate the
credibility of witnesses, weigh the evidence, or resolve factual disputes. I nt'l

Shortstop, Inc. v. Rally's, Inc. , 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 502
U.S. 1059 (1992). However, if the evidence in the record is such that a reasonable

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jury, drawing all inferences in favor of t he non-moving party, could arrive at a verdict
in t hat party's favor, the motion for summary judgment must be denied. Int'l

Shortstop, Inc., 939 F.2d at 1263.
On the other hand, the non-movant's burden is not satisfied by some
m etaphysical doubt as to the material facts, or by conclusory a llegations ,
unsubstantiated assertions, or a mere scintilla of evidence. Little v. Liquid Air Corp. ,
37 F.3d 1069, 1075 (5th Cir. 1994). Summary judgme nt is approp riate if the nonmovant "fails to make a showing sufficient to establish the existence of an element
essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In
other words, summary judgment will lie only "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with a ffidavits if any, show that
there is no genuine issue as to a ny material fact, a nd that the moving party is entitled
to judgm ent as a matter of law." Shennan v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir.
1972)

III.

DISCUSSION
A.

Woman's Hospita l

Initia lly, the Court finds that Woman's Hospita l was not Plaintiffs "employer
and therefore cannot be liable under Title VII." Dupre v. Lifecare Hosps. of New

Orleans, 265 F.3d 1058 (5th Cir. 2001). Woma n's Hospita l "did not hire, fire,
supervise, or set [Plaintiffs] schedule D ... ." Fields v. Hallsville Indep. Sch. Dist. , 906
F.2d 1017, 1020 (5th Cir. 1990). Plaintiff was, at all times relevant to this Ruling and
Order, merely an employee of G4S. (See Doc. 32-5 at pp. 20- 21, 34-35, 49- 50).

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Plaintiffs assertion th at "[p]ursuant to t he elementary principles of agency[,]
Woman's was the principal ofG4S, and was therefore, connected thereto, and is liable
just as if it had directly h ired" him finds no basis in law or fact. (See Doc. 43 at p . 3).
Accordingly, Plaintiffs Title VII claims against Woma n's Hospital are

DISMISSED WITH PREJUDICE pursuant to Rule 56.
B.

G4S

Where, as here, Plaintiff seeks to prove both of his Title VII claims by
circumstantial evidence, the Court u tilizes the "well-known McDonnell Douglas
burden-shifting framework." Stone u. Par. of E. Baton Rouge, 329 F. App'x 542, 546
(5th Cir. 2009) (cit ing McDonnell Douglas Corp. u. Green, 411 U.S. 792 (1973)). That
framework requires Plaintiff to first establish his prima facie case. Turner u. Baylor
Richardson Med. Ctr. , 476 F.3d 337, 345 (5th Cir. 2007). G4S must then articulate a

legit imate, nondiscriminatory reason for the adverse employment action. Id. The
burden t hen shifts back to Plaintiff to present "substantial evidence" th at G4S's
proffered reason is pretextual. Id.
1.

Failure to Promote

Pla intiffs first Title VII claim is a failure to promote claim. 2 (See Doc. 1

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4-9). That is, Plaintiff a lleges that G4S refused to promote him from TSO to CPO
because he is Mrican-American. (Id.).

2

Admittedly, Pla intiff has only implicitly cha racterized his first Title VII claim a s one based upon
G4S's failure to promote. But see Doc. 1 a t p. 2 (wherein Pla intiff a sserts that he was "discrimina ted
in job promotion"); Doc. 40 at p. 6 ("In the instant case, this plaintiff believes h e has been wronged by
this defendant's failure to give him a job promotion that could have meant $3-4.00 an hour increase in
pay.").

4

To make out his prima facie case, Plaintiff must produce evidence that: (1) he
is a member of a protected class; (2) he was qualified for the position sought ; (3) he
was not promoted; and (4) the position that he sought was filled by someone outside
of his protected class.3 Burrell v. Crown Cent. Petroleum, Inc., 255 F. Supp. 2d 591,
616 (E. D. Tex. 2003); see also Bryan v. McKinsey & Co. , 375 F.3d 358, 360 (5th Cir.
2004) (noting that Plaintiffs initia l burden is "one of production . . . not . . .
persuasion").
Plaintiff has produced evidence that he: (1) is a member of a protected class
(African-American), (2) was qualified to serve as a CP0,4 and (3) was not promoted.
He has not, however, produced any evidence that the CPO position he sought was
filled by someone outside of his protected class. The fact th at "two white persons"
were allowed to transfer to the new Woman's Hospital as TSOs has nothing to do
with the CPO position th at Plaintiff sought. (See Doc. 40 at p. 5) (emphasis added);

see also Grim,es v. Texas Dep't of Mental Health & Mental Retardation, 102 F.3d 137,

G4S asserts tha t in order "[t]o establish a prima facie case of discrimination, plaintiff must prove
that: (1) he is a me mber of a protected group; (2) he suffered an adverse employment action; (3) his job
performance a t the time of t he adverse action or discharge me t his employer's legitimate expectations;
and (4) the circums tances of the adverse action or discharge r aise a reasonable inference of unlawful
discrimina tion." See Doc. 37-2 at p. 4 (internal quota tions omitted). However , there is no universal test
for discrimina tion. The Court's analysis inevitably depends upon the sta tute under which the claim is
brough t .
3

That is why G4S's proposed discrimination test is of no use: it wrongfully conflates the first two
eleme nts of a discrimination cla im brought under Title Vll. see McCoy u. City of S hreveport, 492 F. 3d
551. 556 (5th Cir. 2007); Hill u. Lockheed Martin Logistics Mgmt., 354 F.3d 277. 285 (4th Cir. 2004),
with the fin a l two e le me nts of a wrongful discharge claim brought under the ADA. see, e.g., Ha ulbrook
u. Michelin . Am. , 252 F.3d 696, 702 (4th Cir. 2001).
4 G4S asserts tha t Plaintiff "did not possess the requisite qua lifications" to become a CPO. S ee Doc.
37-2 a t p. 5. But a form er corrections officer is qualified to serve as a CPO, see Doc. 37-3, and Plaintiff
served as a "Corrections Sergeant" for approximately 7 year s, see Doc. 37-7. Graduating from the police
acad emy, see Doc. 37-2 at p. 6, is merely one of the ways to qualify as a CPO, see Doc. 37-3.

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139 (5th Cir. 1996) (noting that "unsubstantiated assertions are not competent
summary judgment evidence"). The same is true of the affidavit of Ken Kennedy,
which was originally filed in Singh v. Wachenhut Corp. , No. CIV. A. 07-173-C, 2008
vVL 4181138 (M.D. La. Sept. 10, 2008). (See Doc. 40-1 at pp. 1-4). It nearly goes
without saying that Kennedy cannot, in 2008, attest to whether the CPO position
that Plaintiff sought in 2012 was filled by someone outside of his protected class.
Accordingly, Plaintiffs Title VII failure to promote claim is DISMISSED
WITH PREJUDICE pursuant to Rule 56.
2.

Retaliation

In 2006, Plaintiff filed an unrelated EEO charge and lawsuit against G4S. (See
Doc. 1 at ,, 10). Plaintiff now asserts that six years later, in 2012, G4S retaliated
against him by refusing to promote him to CPO. (See id.).
To establish his prima facie case, Plaintiff must produce evidence that: (1) he
participated in an activity protected by Title VII; (2) G4S took an adverse employment
action against him; and (3) a causal connection exists between the protected activity
and the adverse employment action. See McCoy, 492 F.3d at 556- 57. The first
element is satisfied: Plaintiffs EEO charge and lawsuit are protected by Title VII.

See Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5t h Cir. 2000). The second element is
also satisfied: G4S's refusal to promote constitutes an adverse employment action.

See Burger v. Cent. Apartment Mgmt. , Inc., 168 F.3d 875, 878 (5th Cir. 1999). The
third element, however, is not satisfied, as Plaintiff has failed to establish a causal
connection between his 2006 EEO charge and lawsuit and G4S's 2012 refusal to

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promote. See Boutin u. E:ccon Mobil Corp. , 730 F . Supp. 2d 660, 677-78 (S .D. Tex.
2010). Pla int iff has not produced any evidence t hat G4S's 20 12 refusal to promote
"was based in pa r t on [its] knowledge of ' his 2006 EE O cha rge a nd lawsuit, see id. a t
677 (quotin g Medina u. Ramsey Steel Co., Inc. , 238 F.3d 674, 684 (5th Cir. 2001)), a nd
t he Court cannot infer reta liation where, as here, there is a n a pproximately six-yea r
gap be twee n Plaintiff's 2006 EEO charge and lawsuit a nd G4S's 2012 refusal to
promote, see id. at 677- 78 (cit ing cases which , inter alia, hold t hat where there is a
five -mon th gap , the court should not infer retaliation). The Court therefore m ust
conclude t ha t the eve nts of 2006 a nd 2012 a re "wholly uru·ela te d." Medina, 238 F .3d
at 684 (quoting S immons u. Camden County Bd. of Educ. , 757 F.2d 1187, 1189 (11th
Cir . 1985)).
Accordin gly, Plain tiff's Title VII retaliation cla im 1s DISMISSED WITH

PREJUDICE pu rsu a nt to Rule 56.
3.

E qua l Protection

In h is compla int , Plaintiff vaguely references a "violation of right to equal
protect ion." (See Doc. 1 at ,l,l 11- 13). However, "t he principle t ha t private action is
immune fro m t he restrictions of t he Fourteenth Amendme nt is well establish ed . ..."

J achson u. Metro. Edison Co. , 419 U .S. 345, 349 (1974).
Accordingly, Plain tiffs equal protection cla ims a re DISMISSED WITH

PREJUDICE pursua nt to Rule 56.

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4.

Attorney's Fees

Finally, both Woman's Hospital and G4S seek attorney's fees 5 pursuant to 42
U.S.C. § 2000e-5(k). (See Doc. 32-2 at pp. 14-16); (See Doc. 37-2 at pp. 9-10). In
doing so, they allege that Plaintiffs Compla int was "frivolous, um·easonable, or
without foundation" at inception. See Christiansburg Garment Co. v. Equal

Employment Opportunity Comm 'n, 434 U.S. 412, 421 (1978); see also Walker v. City
of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999).
Ultimately, the Court concludes that only Woman's Hospital is entitled to
attorney's fees. Woman's Hospital was not Plaintiffs "employer and therefore could
not be sued ... under Title VII. That fact was obvious from the outset," Provensal v.

Gaspard, 524 F. App'x 974, 977 (5th Cir. 2013), a nd Plaintiff knew as much prior to
filing suit, (see Doc. 32-5 at p. 79).
G4S asserts that P laintiff is litigious. (See Doc. 37-2 at pp. 9- 10). With that,
the Court certainly agrees. See Smith v. Cassidy, No. CIV.A. 14-647-SDD, 2015 WL
803145 (M.D. La. Feb. 25, 2015); Smith v. U.S. Fed. Gov't, No. CIV.A. 09-478-C, 2009
WL 2578908 (M.D. La. Aug. 20, 2009), aff'd, 362 F. App'x 394 (5th Cir. 2010); Smith

v. Wackenhut Corp. , No. CIVA 06-919-JVP-SCR, 2008 WL 3876886 (M.D. La. Aug.
19, 2008); Smith v. Shell Chern. Co. , 333 F. Supp. 2d 579 (M.D. La . 2004), perm. app.

denied, Smith v. Am. Arbitration Ass'n, Inc., 166 F. App'x 109 (5th Cir.) (sanctions

The Court's original Ruling and Order stated that "both Woman's Hospita l a nd G4S seek attorney's
fees and costs pursuant to 42 U.S. C.§ 2000e-5(k)." Doc. 47 at p. 8. A prevailing party's costs, however.
a re governed by Rule 54(d)(l ). 42 U.S.C. § 2000e-5(k) merely allows the Cow·t to awa rd attorney's fee
"as part of the costs" incurred. This Amended Ruling and Order should therefore clarify that G4S's
cw·re nt Notice of Application to Tax Costs, Doc. 50, is not in any way barred by the Cow·t's holding
that only Woman's H ospita l is entitled to attorney's fees purs uant to 42 U.S.C. § 2000e-5(k).
5

8

war ning issued), cert. denied, 549 U.S. 8 14, and petition for reh'g denied, 549 U.S.
1084 (2006). However , t he Cou rt fi nds th at G4S has faile d to establish frivolity. See
Dean u. Riser, 240 F.3d 505, 512 (5th Cir. 2001) (noting the bur de n rests wit h the
pa r ty seeking fees). Moreover , even if one were to construe Pla intiffs claims against
G4S as frivolous, the Court would not, in its discretion, a ward attorney's fees where,
as here, G4S: (1) misstated t he fina l two eleme nts of Plaintiffs failure to promote
cla im, see supra p . 5 n.2, a nd (2) failed to cite a ny Fift h Circuit case law warrantin g
t he dismissal of Pla int iff s retaliation claim, (see Doc. 37-2 at p . 8 n .43-45).

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IV.

CONCLUSION

Accordingly,
IT IS ORDERED that Defendant Woman's Hos pital's Motion for
Summary Judgme nt (Doc. 32) is GRANTED.
IT IS FURTHER ORDERED that Defendant G4S Secure Solutions'
Motion for Summary Judgment (Doc. 37) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Title VII discrimination claim,
Plaintiffs Title VII retaliation claim, and Plaintiff's equal protection claimG are
DISMISSED WITH PREJUDICE pursuant to Rule 56.
IT IS FURTHER ORDERED t hat Woman's Hospital shall, within 21 days
of this Court's original Ruling and Order (Doc. 47), file with the Court a memorandum
documenting all attorney's fees for which it seeks to be reimb ursed. 7
Baton Rouge, Louisiana, this {pt/::.day ofMay, 2016.

{La.
BRIAN A. JAC
, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

G To the exte nt that Plaintiffs Complaint raises a ny state law claims, the Court declines to exercise
jurisdiction over them put·s uant to 28 U.S.C. § 1367(c)(3) . See Doc. 1 at 11 14- 15.

; Billing entries shall be detailed, and affidavits s hall justify each lawyer's proposed rate in light of
those cha rged by lawyers of "reasonably comparable skill, experience and reputation" in the Middle
District of Louisiana. See McClain u. Lufhin Indus., Inc., 649 F.3d 374 , 381 (5th Cir. 2011).

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