Wallace v. The Board of Supervisors for the University of Louisiana System

Filing 52

RULING denying 36 Motion for Summary Judgment. Signed by Judge Shelly D. Dick on 12/6/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DAWN WALLACE

CIVIL ACTION

VERSUS

14-657-SDD-RLB

THE BOARD OF SUPERVISORS FOR
THE UNIVERSITY OF LOUISIANA SYSTEM
(SOUTHEASTERN LOUISIANA UNIVERSITY)

RULING
This matter is before the Court on the Motion for Summary Judgment1 filed by
Defendant Board of Supervisors for the University of Louisiana System (Southeastern
Louisiana University)(“Defendant”).

Plaintiff Dawn Wallace (“Plaintiff”) has filed an

Opposition2 to which the Defendant filed a Reply.3 For the following reasons, the Court
finds that material issues of fact are present in this case, and summary judgment is
improper.
I.

FACTUAL BACKGROUND
Plaintiff is a tenured professor currently teaching at Southeastern Louisiana

University (SLU) in Hammond, Louisiana.4 In August of 2000, Plaintiff was appointed to
a tenure-track position in SLU’s College of Business and assigned to the Department of

1

Rec. Doc. No. 36.
Rec. Doc. No. 47.
3
Rec. Doc. No. 50.
4
Rec. Doc. No. 1, ¶II.1.
2

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General Business.5 Plaintiff alleges that, subsequent to her hiring, Dr. Yu Hsing, head of
Plaintiff’s department, commented to Plaintiff that he believed her starting salary to be
satisfactory for a single woman and that, should Plaintiff marry, her future spouse’s salary
combined with her salary would be a “great improvement.”6
Plaintiff contends that, at the time of her hire, along with the skills, education and
knowledge generally required, all tenure-track faculty in the College of Business were
also required to hold a terminal degree (such as a Ph.D.) or have “All But Dissertation”
completed status.7

Plaintiff alleges that her credentials include:

an undergraduate

degree in Accounting with a minor in Management from SLU; a MBA from SLU; a Ph.D.
in Educational Leadership and Research from Louisiana State University (LSU); private
sector experience five years prior to her appointment; and eighteen additional hours of
graduate-level Management courses.8
In June of 2005, Plaintiff attended a business meeting in Germany with the Dean
of the College of Business, Randy Settoon (“Settoon”), during which Plaintiff contends
Settoon propositioned her. Plaintiff alleges that, when she declined this advance, Settoon
responded: “So you mean that I don’t get to see you naked until after you get tenure?”9
In August of 2005, Plaintiff became the Director of Graduate Business Programs
which was a twelve-month administrative position.

Plaintiff claims that, when she

returned to her faculty position, a nine-month position, she did not receive the same
compensation as male colleagues. She also claims that this was in contravention of

5

Id. at ¶IV.7.
Id. at ¶IV.8.
7
Id. at ¶IV.9.
8
Id. at ¶IV.10.
9
Id. at ¶IV.11.
6

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SLU’s change-in-status policy which requires that “[a]ny employee whose status changes
from a twelve-month to a nine-month salary basis shall be offered a salary consistent with
similar positions at the institution, at similar SREB institutions, or as approved by the
Board.”10

Plaintiff contends this male/female distinction in faculty salary constitutes

gender discrimination.11 Plaintiff further claims that she was subsequently encouraged
by Settoon to take additional business classes to become AACSB12 academically
qualified. Thus, Plaintiff took additional hours of Management classes which she claims
qualified her to teach Management under the AACSB guidelines.13
Plaintiff alleges that the College of Business was in the process of being
reorganized which would result in the Department of General Business being dissolved;
thus, plans were made for her transfer to the Management Department. Plaintiff claims
that Settoon promised her a raise commensurate with her male colleagues upon her
transfer to Management, as she had complied with his request to complete Management
coursework.14

Plaintiff received tenure in 2006 and points out that her tenure

recommendation noted her “professionalism, initiative, and collegiality.”15
After she received tenure, Plaintiff claims that Settoon assigned her additional
duties and committee positions in the College of Business.16 Plaintiff also claims that she

10

Id. at ¶IV.12.
Id. at ¶IV.13.
12
AACSB is the Association to Advance Collegiate Schools of Business, a Southeastern accrediting
organization. Id. at ¶IV.14.
13
Id.
14
Id. at ¶IV.15.
15
Id. at ¶IV.16.
16
These duties and positions included: Chair of Business Week, Co-chair of Ethics, creator of College of
Business brochure, Faculty Advisor for student organization, member of College of Business
Reorganization Committee, Tenure and Promotion Guidelines Committee, Tenure and Promotion of
Colleagues Committee, American Heart Association Chair, Curriculum Committee, and College Events and
Social Committee. Id. at ¶IV.17.
11

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taught an overload course and an additional course with no compensation.17
In October of 2008, Plaintiff alleges Settoon resumed his pursuit of her after
separating from his wife. Settoon allegedly again promised Plaintiff increased pay upon
joining the Management Department and, allegedly, also suggested that she could
eventually become the Assistant Dean. Plaintiff contends she agreed to date Settoon,
and this relationship lasted two months.18 When Plaintiff broke off this relationship with
Settoon in December of 2008, Plaintiff claims that Settoon’s attitude toward her quickly
changed, and she was removed from extra duties and committee positions.19
In August of 2009, the reorganization of the College of Business took place, which
dissolved and split the College of General Business faculty into the fields of Management
and Economics. Plaintiff was transferred to the Management Department as planned,
but she claims her salary was not adjusted to the levels of the male Management
Department professors as had been promised. Further, Plaintiff contends she has not
been allowed to teach upper level Management courses although she is qualified to do
so based on the 18 extra hours of coursework performed under AACSB guidelines.20
In May of 2010, Plaintiff hand-delivered a sexual harassment and discrimination
complaint to Gene Pregeant (“Pregeant”), the EEO Compliance Officer for SLU. Plaintiff
contends she described Settoon’s behavior beginning on the business trip to Germany
and the subsequent actions taken.21 Plaintiff contends that, on June 15, 2010, Pregeant
addressed her complaint and advised that Settoon denied making any sexual advances

17

Id.
Id. at ¶IV.18.
19
Id. at ¶IV.19.
20
Id. at ¶IV.21.
21
Id. at ¶IV.22.
18

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in Germany, which ended the inquiry.

Pregeant allegedly advised Plaintiff that her

complaint was without merit singularly based on Settoon’s denial. Plaintiff claims the
conversation ended there, and Pregeant offered Plaintiff no further assistance or advice
regarding options of raising her concerns to the EEOC.22
During this time frame, Settoon called a meeting of all Department Heads of the
College of Business and allegedly informed all attendees of Plaintiff’s discrimination
complaint.

Plaintiff contends this violated published SLU policies regarding the

confidentiality of harassment complaints and that such action amounted to retaliation
causing Plaintiff embarrassment, humiliation, and isolation. Further, Plaintiff contends
Settoon’s comments also encouraged retaliation against her by others in the
department.23 Plaintiff claims that her Department Head, Dr. Antoinette Phillips (“Phillips),
was in attendance at this meeting.24
Realizing that Settoon never intended to raise her pay, Plaintiff went back to
Pregeant in August of 2010 and raised concerns about possible violations of the Equal
Pay Act (EPA) and wage discrimination. Pregeant again found no merit to Plaintiff’s
concerns and provided her with a legal interpretation of the EPA that Plaintiff alleges was
intended to dissuade her from pursuing her rights.25
Following

Settoon’s

department meeting, Plaintiff contends she began

experiencing retaliatory actions by Phillips along with increased retaliatory actions by
Settoon.26 On December 16, 2010, Plaintiff filed a charge with the EEOC alleging wage

22

Id. at ¶IV.23.
Id. at ¶IV.24.
24
Id. at ¶IV.26.
25
Id. at ¶IV.25.
26
Id. at ¶IV.27.
23

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discrimination on the basis of gender.27 Plaintiff contends that these acts of retaliation by
Phillips, Settoon, and Pregeant continued, and further, her College of Business
colleagues became distant and unfriendly towards her as a result of SLU failing to uphold
its duty to provide confidentiality in Plaintiff’s complaint.28 Plaintiff claims she suffered,
inter alia, the following acts of retaliation as a result of her complaint: (1) she was
humiliated and undermined by Dr. Phillips changing the grade of one of her failing
students without Plaintiff’s knowledge or consent; (2) Dr. Phillips became highly
confrontational with Plaintiff regarding routine student complaints when she had
previously been supported regarding same; (3) Plaintiff received a 62.9% evaluation
score after filing her charge when she had previously received scores of 92.50% and
100%; (4) Plaintiff was suddenly barred from setting her own course schedule when she
had previously been allowed to do so; (5) Plaintiff was assigned to teach during
“undesirable times of the day”; (6) Plaintiff was required to provide reports on short notice
and under extreme pressure; (7) Plaintiff was required to teach in a volunteer program to
prevent her from teaching Continuing Education programs that would enhance her pay;
and (8) Plaintiff was not allowed to list summer courses as 100% online and was refused
the opportunity to teach upper level courses.29 When Plaintiff approached Settoon – in
his role as Dean – regarding some of Phillips’ actions, she claims Settoon told her that
Phillips did not like her.30 In the summer of 2011, Plaintiff again complained to Pregeant
about the actions she deemed retaliatory, and she was again allegedly met with no

27

Id. at ¶IV.28.
Id. at ¶IV.29.
29
Id. at ¶IV.30.
30
Id. at ¶IV.31.
28

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investigation and no assistance.31 Plaintiff filed an additional charge of retaliation with
the EEOC on December 16, 2011.32
While Plaintiff remains employed by SLU, she contends the retaliation is presently
ongoing. Although Plaintiff claims she is qualified to teach upper level Management
courses, she contends she is only allowed to teach lower level courses since filing her
EEOC complaint, which renders her salary amongst the lowest in the College of Business.
Plaintiff also alleges she is not being properly evaluated allegedly due to her pending
EEOC charges.33

Further, Plaintiff contends that, as a result of these actions, her

reputation with students and colleagues has suffered along with her physical and mental
well-being. Plaintiff receives treatment from a therapist to address these issues and
alleges physical symptoms related to her stress that require medical monitoring and
treatment.34
Upon receiving her Right to Sue letter from the EEOC, Plaintiff filed this lawsuit
alleging violations of the Equal Pay Act and the Lilly Ledbetter Fair Pay Act of 2009,
gender discrimination in violation of Title VII of the Civil Rights Act of 1964, and retaliation
under Title VII and the EPA. Plaintiff contends that the Management Department of the
College of Business at SLU consists of an all-male faculty except for full professor Phyllis
King and Plaintiff, who are the lowest paid professors in this department.35 Plaintiff further
contends that other departments at SLU have disparities in pay reflecting a systemic

31

Id. at ¶IV.32. Curiously, Plaintiff alleges that, after SLU was contacted by her EEOC investigator Hoyt
Baugh regarding her low 62.95% score, she received a 95.00% score from Phillips on the next evaluation.
Id. at ¶IV.33.
32
Id. at ¶IV.34.
33
Id. at ¶IV.35 & 36.
34
Id. at ¶IV.37.
35
Id. at ¶V.42.

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pattern of denying female professors equal pay.36
Defendant has moved for summary judgment arguing that Plaintiff fails to make a
prima facie case for any cause of action asserted and fails to present genuine disputes
of material fact that would preclude summary judgment.
II.

LAW AND ANALYSIS
A. Summary Judgment Standard
“The court 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
of law.”37 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”38 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”39 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”40 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”41

36

Id. at ¶V.43.
Fed. R. Civ. P. 56(a).
38
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
39
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
40
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
41
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
37

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Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”42 All reasonable factual
inferences are drawn in favor of the nonmoving party.43 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”44 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”45
B. The Equal Pay Act (“EPA”)46
The Equal Pay Act prohibits discrimination “between employees on the basis of
sex by paying wages to employees in such establishment at a rate less than the rate at
which [the employer] pays wages to employees of the opposite sex in such establishment
for equal work on jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working conditions.”47 “[I]n order to
establish a claim under the Equal Pay Act, the plaintiff must show: (1) that her employer
is subject to the Act; (2) that she performed work in a position requiring equal skill, effort
and responsibility under similar working conditions; and (3) that she was paid less than

42

Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
43
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
44
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
45
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
46
29 U.S.C. §206 (d)(1).
47
Id.

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members of the opposite sex.”48 To establish that her male counterparts engage in “equal
work,” the plaintiff need only prove that the “skill, effort and responsibility” required in the
performance of the jobs is “substantially equal.”49 “The Act necessarily requires a plaintiff
to compare her skill, effort, responsibility and salary with a person who is or was similarly
situated.”50
Once a plaintiff has shown that she is paid less than an employee of the opposite
sex for substantially equal work, the burden of proof shifts to the employer to show that
the differential is justified under one of the Act's four exceptions.51 The Equal Pay Act
provides exceptions for disparate wage payments “made pursuant to (i) a seniority
system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality;
or (iv) a differential based on any other factor other than sex.”52 These exceptions “are
affirmative defenses on which the employer has the burden both of production and of
persuasion.”53 Even a legitimate, non-discriminatory reason for the pay differential will
not justify summary judgment where a plaintiff is able to show that the defendant's
proffered reasons are a pretext for gender discrimination.54

Indeed, “[b]ecause the

exceptions to the Equal Pay Act are to be narrowly construed,55 summary judgment is

48

Jones v. Flagship Int'l, 793 F.2d 714, 722–723 (5th Cir.1986).
Id. (citing Pearce v. Wichita County, City of Witchita Falls, Texas Hospital Bd., 590 F.2d 128, 133 (5th
Cir.1979)).
50
Id.
51
Plemer v. Parsons–Gilbane, 713 F.2d 1127, 1136 (5th Cir.1983).
52
29 U.S.C. § 206(d)(1).
53
Plemer, 713 F.2d at 1136.
54
Id.
55
Perales v. American Retirement Corporation, No. Civ.A.SA-04-CA-0928, 2005 WL 2367772, at *3 (W.D.
Tex. Sept. 26, 2005)(citing Corning Glass Works v. Brennan, 417 U.S. 188, 207 (1974)(“The Act is broadly
remedial and it should be construed and applied so as to fulfill the underlying purposes which Congress
sought to achieve.”); Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1047 (5th Cir.), cert. denied, 414 U.S.
822 (1973)).
49

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proper only if the defense is so clearly established that no rational jury could find to the
contrary.”56
Defendant contends that Plaintiff’s alleged male comparators have different
educational backgrounds and experience which justifies the salary differentials and the
assigned classes to teach.

However, Plaintiff argues that these “manufactured”

distinctions did not exist in the “normal course of operations” at SLU.57 For example, Dr.
Phillips’ suggested that, considering accreditation standards, Plaintiff is qualified to teach
any Management classes, including upper level classes.58 Plaintiff further contends that
the accreditation services treats professors with terminal degrees in Management equally
with professors – like Plaintiff – with an additional 18 hours in post graduate management
classes with regard to teaching responsibilities. Moreover, Plaintiff has attested that she
was advised that her salary would be raised to her male counterparts if she completed
the 18 hours of post-graduate work in Management.59 Plaintiff also claims that she
previously taught upper level Management classes, and Defendant has purposely limited
her teaching to lower level classes in order to bolster this defense to her claim. The Court
finds that there are clearly genuinely disputed material facts as to Plaintiff’s satisfaction
of this requirement.
In the present case, it is undisputed that Defendant is subject to the Equal Pay Act,
and it appears from the record before the Court that Plaintiff was paid less than some (if
not all) male counterparts. Whether Plaintiff performed work requiring equal skill effort

56

Id. (citing Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 800 (6th Cir.1998) (citing EEOC v. State
of Del. Dep't of Health and Soc. Servs., 865 F.2d 1408, 1414 (3d Cir.1989))).
57
Rec. Doc. No. 47, p. 2.
58
Deposition of Dr. Antoinette Phillips, Rec. Doc. No. 47-3, pp. 26-27.
59
Affidavit of Dawn Wallace, Rec. Doc. No. 47-2.

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and responsibility as those male counterparts is highly disputed.

Having carefully

reviewed the record, the Court finds that there are genuine issues of fact regarding this
element of Plaintiff's prima facie case regarding her Equal Pay Act claims. As noted by
a Southern District of Texas Court, “[u]ltimately, whether two jobs require equal skill,
effort, and responsibility, and are performed under similar working conditions is a factual
determination. Given the fact intensive nature of the inquiry, summary judgment will often
be inappropriate.”60 The Court finds that these matters are best presented to a jury for
resolution.
Additionally, the Court finds that there are genuine issues of material fact as to
whether the reasons given for the disparate wage treatment—such as the other
employees' degrees and educational experience—are pretextual are issues of credibility
and fact best reserved for a jury.61 Because the Court finds that Plaintiff has created
genuine issues of material fact regarding whether Defendant's decision to pay her male
counterparts more was not motivated solely by gender-neutral factors, the motion for
summary judgment on her Equal Pay Act claims is denied. The Court simply cannot find
from the present record that the defense is so clearly established that no rational jury
could find to the contrary.

60

Wojciechowski v. National Oilwell Varco, L.P. 763 F.Supp.2d 832, 849 (S.D.Tex. 2011) (internal citations
omitted).
61
Perales., 2005 WL 2367772 at *6 (“[The] credibility and weight to be given to defendant's explanation for
the pay differential in this case is a matter properly left to the consideration of the jury.”); Wojciechowski,
763 F.Supp.2d at 849.

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C. Title VII Claims62
1. Gender Discrimination
Plaintiff has also asserted a Title VII claim of gender discrimination in
compensation. Title VII makes it “an unlawful employment practice for an employer ... to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment because of such individual's race, color... .”63 A claim of
employment discrimination can be proven through direct or circumstantial evidence.64
Direct evidence is evidence that proves the fact of discriminatory animus without
inference or presumption.65

To survive summary judgment in an employment

discrimination case in the absence of direct evidence of discrimination, the plaintiff must
demonstrate, pursuant to the burden-shifting framework found in McDonnell Douglas
Corp. v. Green, that: (1) she was in a protected class; (2) she was qualified for the
position; (3) she suffered adverse employment action; and (4) she was treated less
favorably than similarly situated employees.66 The Supreme Court noted that courts
should apply this framework flexibly, as “the facts necessarily will vary in Title VII cases.”67
Moreover, “to establish a prima facie case, a plaintiff need only make a very minimal

62

42 U.S.C. § 2000e.
42 U.S.C. § 2000e–2(a)(1).
64
Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000).
65
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002).
66
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Okoye v. Univ. of Tex. Houston Health
Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001) (applying the McDonnell Douglas framework to Title VII claims).
67
Id. at 802 n.13; see also Intern. Broth. of Teamsters, 431 U.S. at 358 (recognizing that the importance of
McDonnell Douglas lies “not in its specification of the discrete elements of proof there required, but in its
recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence
adequate to create an inference that an employment decision was based on a discrimination criterion illegal
under the [Civil Rights] Act”); Barnes, 778 F.2d at 1099 (“The McDonnell Douglas rule was intended to be
a flexible one.”).
63

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showing.”68
If the plaintiff can establish these elements, the burden will shift to the defendant
to show a legitimate, non-discriminatory purpose for the adverse employment action.69
The defendant must point to admissible evidence in the record, but the burden is one of
production, not persuasion.70 The defendant is not required to show that the employment
decision was proper, only that it was not discriminatory.71 The employer may succeed at
this stage by proving that it would have taken the same action even had it not considered
the unlawful factor.72 If the defendant satisfies its burden of production, the burden shifts
back to the plaintiff to show that any non-discriminatory purposes offered by the defendant
are merely a pretext for discrimination by presenting evidence of disparate treatment or
demonstrating that the proffered explanation is false.73
In the context of a gender discrimination in compensation case, a plaintiff must
show that she was a member of a protected class and that she was paid less than a nonmember for work requiring substantially the same responsibility.74 If Plaintiff sets forth a
prima facie case, the case is analyzed under the McDonnell Douglas framework outlined
above.75
For the same reasons the Court finds fact issues as to whether Plaintiff performed

68

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996).
Id.
70
Russell, 235 F.3d at 222.
71
LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007); see also Perez v. Region 20
Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091
(5th Cir. 1995) (“The question is not whether an employer made an erroneous decision; it is whether the
decision was made with discriminatory motive.”).
72
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
73
Id.
74
Taylor v. United Parcel Service, Inc., 554 F.3d 510, 522–523 (5th Cir. 2008).
75
Id.
69

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work requiring equal skill, effort, and responsibility as her male counterparts under the
EPA, the Court finds that there is a fact issue under Title VII as to whether Plaintiff was
qualified for the positions held by her male counterparts and whether her work required
substantially similar responsibility. Indeed, the same evidence will probably address both
issues.
The Court finds that Plaintiff has satisfied her burden under this framework of
establishing that she has suffered an adverse employment action as well. In the context
of discrimination claims, “adverse employment reactions” are defined by the Fifth Circuit
as “ultimate employment decisions,” such as “hiring, granting leave, discharging,
promoting and compensating.”76 There is no question that the Defendant’s alleged failure
to give Plaintiff a raise commensurate to her male counterparts constitutes an adverse
employment action in the context of a discrimination in compensation case. This is a
properly raised issue of material fact, and whether the Defendant’s neutral explanations
for the disparate treatment are pretextual is a matter of credibility best reserved for the
jury.
2. Retaliation
As discussed above, Plaintiff has also asserted a retaliation claim under Title VII
and the EPA based on a myriad of actions she alleges to have been in retaliation for her
rejection of Settoon’s alleged sexual advances and for her discrimination complaints to
Pregeant and the EEOC. To establish a prima facie case of retaliation under Title VII, a
plaintiff must show that: (1) she engaged in activity protected by Title VII; (2) her employer

76

Coffman v. Alvin Community College, 642 F. Appx. 472, 477 (5th Cir. 2016) ; see also Pierce v. Texas
Department of Crim. Justice, Inst. Div., 37 F.3d 1146, 1149 (5th Cir.1994) (“Adverse employment actions
are discharges, demotions, refusals to hire, refusals to promote, and reprimands.”).

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took an adverse employment action against her; and (3) a causal connection exists
between the protected activity and the adverse employment action.77 The “adverse
employment action” must be an “ultimate employment decision,” such as hiring, granting
leave, discharging, promoting, or compensating.78
There is no dispute that Plaintiff engaged in protected activity; however, Defendant
contends Plaintiff has failed to establish an adverse employment action and causation. In
the retaliation context, a plaintiff must show that a reasonable employee would have found
the challenged employment action “materially adverse.”79

An employment action is

materially adverse if “it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.”80 An employment action is not materially adverse
if it amounts only to “petty slights or minor annoyances that often take place at work and
that all employees experience.”81
While the Court agrees that not all of the allegations Plaintiff asserts as retaliatory
satisfy this standard, some do, particularly the failure to raise her pay commensurate to
her male colleagues as allegedly promised by the head of her department. Moreover,
while standing alone, some of the alleged actions might not constitute a “materially
adverse” action; however, taken as a whole, the pattern of actions could arguably be
interpreted as actions that would dissuade a reasonable employee from making a claim
of discrimination.

77

Lowery v. Texas A&M University System, 11 F.Supp.2d 895, 910 (S.D. Tex. 1998) (internal citations
omitted).
78
Id. (internal citations omitted).
79
Soublet v. Louisiana Tax Com’n, 766 F.Supp.2d 723, 734 (E.D. La. 2011)(quoting Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
80
Id., quoting Burlington, 548 U.S. at 68 (citations and internal quotation marks omitted).
81
Id., quoting Burlington, 548 U.S. at 68.

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Defendant contends Plaintiff has suffered no adverse employment action for
purposes of a retaliation case. Plaintiff has alleged that she was promised a pay raise
that would raise the level of her pay to that of her male colleagues if she met certain
conditions. The allegation is not that Plaintiff never received any raises; rather, she
alleges she never received the promised raise, to which she was entitled, that would
equalize her pay with her alleged male counterparts. Further, there is evidence in the
record from which a reasonable juror could find that the subsequent employment
actions/inactions Plaintiff allegedly experienced were implemented in retaliation for
Plaintiff’s protected activities. This is not a proper question to be resolved on summary
judgment. The Court finds that there are genuine issues of material facts on the issues
of adverse employment action and causation.

The factual disputes and credibility

determinations required to resolve them are within the province of the trier of fact.
D. Punitive/Liquidated Damages
Defendant maintains that punitive damages under Title VII and liquidated
damages, which are punitive in nature, under the EPA are not available against a political
subdivision. Plaintiff concedes that punitive damages are not available against a political
subdivision under Title VII; however, Plaintiff contends that liquidated damages under the
EPA are available.

Because the Fifth Circuit has affirmed the award of liquidated

damages under the EPA against a state university,82 the Court will deny Defendant’s
motion for summary judgment on liquidated damages.

82

See Siler-Khodr v. University of Texas Health Science Center San Antonio, 261 F.3d 542, 545 (5th Cir.
2001)(Fifth Circuit affirmed award of liquidated damages to plaintiff in the amount of $91,000 against
university-defendant).

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III.

CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment83 is

DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on December 6, 2016.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

83

Rec. Doc. No. 36.

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