George v. Fresenius Medical Care North America et al

Filing 56

RULING denying 29 Motion for Summary Judgment. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 9/9/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TAMMY GEORGE
CIVIL ACTION
VERSUS
NO. 15-14-RLB
FRESENIUS MEDICAL CARE
NORTH AMERICA, ET AL.

CONSENT CASE

RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Plaintiff’s Motion for Summary Judgment. (R. Doc. 29). The motion
is opposed. (R. Doc. 34).
I.

Background
On or about November 21, 2014, Tammy George (“Plaintiff”) filed this proceeding in

Louisiana state court alleging that she was discriminated against by her employer Bio-Medical
Applications of Louisiana, LLC (“BMA”)1 and her direct supervisor Sheryl Wilcutt in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) and the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”) (R. Doc. 1-1, “Petition”).
Plaintiff alleges that she was subjected to a hostile work environment based on her race (AfricanAmerican) and her disabilities (breast cancer and lymphedema). With regard to her Title VII
claims, Plaintiff also alleges that she was retaliated against by her employer. BMA removed the
action on January 12, 2015. (R. Doc. 1).
Plaintiff claims that Wilcutt racially profiled her and created a hostile work environment.
(Petition, ¶¶ 3, 7). Plaintiff alleges that she “was made to endure racial slurs which were spoken
to her by [Wilcutt],” including the use of the term “Monkeys” to categorize African-Americans.

BMA asserts that it was wrongly identified as “Fresenius Medical Care North America” in the Petition.
(R. Doc. 20 at 1).
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(Petition, ¶ 4). Plaintiff further claims that her supervisor compelled her to pick up heavy
containers despite being aware Plaintiff was diagnosed with breast cancer and lymphedema.
(Petition, ¶ 5). Plaintiff claims she requested relief from lifting or handling objects equal to or in
excess of four pounds, which was denied, and had to take FMLA medical leave in September of
2013 as a result of a lifting injury. (Petition, ¶ 6). Plaintiff further claims she “was constantly
blamed for offenses she did not commit, and she was threatened with termination on a daily
basis.” (Petition, ¶ 6). Finally, Plaintiff claims that Wilcutt retaliated against her “[w]hen the
plaintiff attempted to address concerns regarding the disparate treatment which white employees
were not made to endure.” (Petition, ¶ 7).
Plaintiff moves for summary judgment on the issue of liability on all of her claims,
seeking “a determination that the plaintiff’s allegations are evidentiary Prima Facie proof and
therefore there remain no genuine issues of material fact remaining save a monetary
determination as to the damages the plaintiff has suffered.” (R. Doc. 29-1 at 1). Plaintiff argues
that she has provided uncontroverted testimony that establishes BMA’s liability. (R. Doc. 29-1 at
3-8). In support of this contention, Plaintiff submits a Statement of Uncontested Material Facts.
(R. Doc. 29-2), attached to which are 18-pages of typewritten journal entries by Plaintiff (R.
Doc. 29-4, “Exhibit A”).
BMA argues that Plaintiff’s Motion should be denied on the basis that Plaintiff has not
set forth competent evidence in support of her Motion because “Exhibit A” constitutes
inadmissible hearsay and is conclusory, self-serving, and incompetent. (R. Doc. 34 at 3).
Furthermore, BMA argues that Plaintiff’s Statement of Uncontested Facts does not comply with
Rule 56 of the Federal Rules of Civil Procedure or Local Rule 56(a) because it “consists entirely
of factual and/or legal conclusions devoid of evidentiary support, contains statements that are not

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issues of fact or material to this action, and contains statements on which Plaintiff is not
competent to testify.” (R. Doc. 34 at 3). BMA also argues that Plaintiff’s Motion fails on the
merits. (R. Doc. 34 at 5-10).2
BMA submits a “Statement of Material Facts as to which There Exists Genuine Issues to
be Tried” pursuant to Local Rule 56(d). (R. Doc. 34-1). In addition, BMA filed a separate Rule
56(c)(2) Objection to Plaintiff’s Summary Judgment Evidence. (R. Doc. 35). Through this
filing, BMA argues that Plaintiff’s Exhibit A is comprised solely of inadmissible hearsay. (R.
Doc. 35 at 2-4). BMA argues that to the extent the “Statement of Uncontested Material Facts”
(R. Doc. 29-2) is submitted by Plaintiff as a declaration and/or affidavit in support of summary
judgment, it “is in improper form and is conclusory, self-serving, demonstrably inaccurate and
filled with statements about which Plaintiff is incompetent to testify.” (R. Doc. 25 at 4-9).
II.

Law and Analysis
A.

Summary Judgment Standard

Summary judgment shall be granted when there are no genuine issues as to any material
facts and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. When
a motion for summary judgment is properly made and supported under Rule 56(c), the opposing
party may not rest on the mere allegations of their pleadings, but rather must come forward with
“specific facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c)(1). The nonmovant’s evidence is to be believed for purposes of the motion and all justifiable inferences are
to be drawn in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

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BMA suggests that Plaintiff does not seek summary judgment on her race discrimination and retaliation
claims. (R. Doc. 34 at 1 at 2). Considering that Plaintiff ultimately prays for a judgment of liability on all
of her claims, the Court will include these claims in its analysis.

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(1986). However, summary judgment must be entered against the plaintiff, if he or she fails to
make an evidentiary showing sufficient to establish the existence of an element essential to his or
her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Without a showing sufficient
to establish the existence of an element essential to the plaintiff's claim, there can be “no genuine
issue as to any material fact since a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all facts immaterial.” Celotex Corp., 477 U.S. at
323.
Local Rule 56(a) provides that “[e]very motion for summary judgment shall be
accompanied by a separate, short, and concise statement of the material facts as to which the
moving party contends there is no genuine issue to be tried. The Court need only consider “cited
materials” and may ignore other materials in the record. Fed. R. Civ. P. 56(c)(3); see also Skotak
v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992) (“Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a party’s
opposition to summary judgment. . . .”).
Furthermore, only evidence that is competent, or admissible, may be used to support
summary judgment. Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). “‘[U]nsupported
allegations or affidavits setting forth ultimate or conclusory facts and conclusions of law’ are
insufficient to either support or defeat a motion for summary judgment.” Serna v. Law Office of
Joseph Onwuteaka, P.C., 614 F. App’x 146, 153 (5th Cir. 2015) (quoting Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)).
Given the foregoing legal standards, the Court will only consider the statements in
Plaintiff’s Exhibit A to the extent they are directly cited in Plaintiff’s Motion for Summary

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Judgment (R. Doc. 29), Memorandum in Support (R. Doc. 29-1), and Statement of Uncontested
Material Facts (R. Doc. 29-2).3
B.

Title VII Claims

Title VII makes it unlawful 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,” among other things. 42 U.S.C. § 2000e-2(a)(1). Title VII also makes it
unlawful for an employer to retaliate against an individual for opposing discrimination or
otherwise participating in activity protected by the statute. 42 U.S.C. § 2000e-3(a). Disparate
treatment claims and retaliation claims under Title VII typically utilize the McDonnell Douglas
burden-shifting proof structure established by the Supreme Court. See McDonnell Douglas,
Corp. v. Green, 411 U.S. 792, 802-03 (1973).4
1.

Racial Discrimination (Disparate Treatment)

For disparate treatment claims, the McDonnell Douglas framework requires a plaintiff to
first establish a prima facie case of discrimination by demonstrating the plaintiff: (i) belongs to a

Plaintiff’s Statement of Uncontested Material Facts only references Exhibit A for the proposition that all
“allegations and responses” submitted in Exhibit A are “true, valid, and based on [her] own personal
knowledge, information, and belief.” (R. Doc. 29-2 at 3). Plaintiff appears to sign the Statement of
Uncontested Material Facts as her own notary. Because Plaintiff counsel’s signature also appears on the
Statement of Uncontested Material Facts, the Court will construe that document to constitute an affidavit
in support of the submission of Exhibit A as summary judgment evidence. The Court will, however, only
refer to Exhibit A to the extent Plaintiff specifically cites to that document in support of facts asserted in
her Motion, Memorandum, and Statement of Uncontested Material Facts. Plaintiff does not cite any of
her deposition testimony in support of summary judgment.
4
Because the McDonnell Douglas framework is applicable to alleged violations of Title VII and other
related statutes, the Court relies on relevant cases decided under all applicable statutes. See, e.g., Turner v.
Kan. City S. Ry., 675 F.3d 887, 891-92 (5th Cir. 2012) (applying McDonnell Douglas to Title VII);
McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir. 2000) (applying McDonnell Douglas to
an ADA claim); Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010) (“While the
Supreme Court has not definitively resolved whether it is, we are bound by our circuit precedent applying
McDonnell Douglas to age discrimination cases.”) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
175 n.2 (2009) (“[T]he Court has not definitively decided whether the evidentiary framework of
McDonnell Douglas utilized in Title VII cases is appropriate in the ADEA context.”) (internal citations
omitted)).
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protected class; (ii) is qualified for the position at issue; (iii) was subject to an adverse
employment action under circumstances giving rise to an inference of discrimination. See
McDonnell Douglas Corp, 411 U.S. at 802.5 Once established, the burden shifts to the defendant
to “produce admissible evidence that [its] decisions were based on legitimate, nondiscriminatory
reasons.” Turner v. Kansas City. S. Ry. Co., 675 F.3d 887, 900 (5th Cir. 2012); see also
McDonnell Douglas, 411 U.S. at 802-803. If the defendant carries its burden, the plaintiff must
prove by a “preponderance of the evidence that the legitimate reasons offered . . . were a pretext
for discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In the context of establishing a prima facie case of discrimination, an adverse
employment action means an “ultimate employment decision such as hiring, granting leave,
discharging, promoting, or compensating.” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th
Cir. 2007) (quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)).6
Title VII does not cover “every decision made by employers that arguably might have some
tangential effect upon those ultimate decisions.” Banks v. E. Baton Rouge Parish Sch. Bd., 320
F.3d 570, 575 (5th Cir. 2003) (quoting Burger v. Central Apartment Mgmt., 168 F.3d 875, 878
(5th Cir. 1999)). Major changes in compensation, duties, and responsibilities likewise constitute
ultimate employment actions. Pegram v. Honeywell, Inc., 361 F.3d 272, 282 n. 8 (5th Cir. 2004)
(citing Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 770 (5th Cir. 2001)). Allegations of
unpleasant work meetings, verbal reprimands and improper work requests do not constitute
The Supreme Court recognized that the standard is not inflexible, as “[t]he facts necessarily will vary in Title VII
cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in
every respect in differing factual situations.” Id., at 802, n.13. See also Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); Thompson v. City of Waco, Texas, 764 F.3d 500, 507 (5th Cir. 2014) (looking to whether
plaintiff has shown that he was treated less favorably than other similarly situated employees outside of his class).
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The Supreme Court has abrogated the “ultimate employment decision” standard in the retaliation
context. Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 61-65 (2006). The “ultimate
employment decision” standard, however, remains controlling for discrimination claims under the
substantive provisions of Title VII. McCoy, 492 F.3d at 559-60.
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actionable adverse employment actions. King v. Louisiana, 294 F. App’x 77, 85 (5th Cir. 2008)
(citing Burlington Northern, 548 U.S. at 68); see also Liddell v. Northrop Gumman Shipbuilding,
Inc., 836 F. Supp. 2d 443, 457 (5th Cir. 2011) (disciplinary warnings that did not result in any
type of reduced wages, terminations, or layoffs, or any other ultimate employment action are not
actionable under Title VII). “Transfers, denial of paid leave, and suspensions can all be ultimate
employment actions.” Moore v. True Temper Sports, Inc., No. 10-178, 2011 WL 5507401, at *1
(N.D. Miss. Nov. 10, 2011) (citing cases).
With regard to her claim of discrimination, Plaintiff provides a brief one-page section
discussing the legal standards for establishing a claim for harassment, not disparate treatment,
and complains that BMA did not provide a witness list in response to an interrogatory request.
(R. Doc. 29-1 at 4-5). Plaintiff does not cite any evidence in the record establishing a prima
facie case for disparate treatment, including that Plaintiff was subject to an adverse employment
action, i.e., an ultimate employment decision.
Accordingly, Plaintiff has not established that there are no genuine issues as to any
material fact regarding the establishment of Plaintiff’s prima facie claim of discrimination, much
less that Defendant’s liability with regard to discrimination is established.
2.

Retaliation

For retaliation claims, “a plaintiff must first show that (1) she participated in an activity
protected under the statute; (2) her employer took an adverse employment action against her; and
(3) a causal connection exists between the protected activity and the adverse action.” Feist v.
Louisiana, 730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy, 492 F.3d at 556-57 (Title VII) and
Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (ADA)). Once the plaintiff establishes
a prima facie case of retaliation, “the burden shifts to the employer to state a legitimate, non-

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retaliatory reason for its decision.” Feist, 730 F.3d at 454. If the employer presents such a
reason, “the burden shifts back to the employee to demonstrate that the employer’s reason is
actually a pretext for retaliation” Id. “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. (quoting Long v. Eastfield College, 88 F.3d
300, 308 (5th Cir. 1996)).
Plaintiff does not make any effort to establish a prima facie case for her retaliation claim.
In support of summary judgment on this claim, at most Plaintiff asserts that she “voiced [certain]
harassing conduct by calling the employee action line” and on “April 24, 2013, the plaintiff was
contacted for investigation purposes on her call making it known that her supervisor was
engaging in berating conduct by her engaging in racial slurs towards the plaintiff.” (R. Doc. 29-1
at 6 (citing Exhibit A at 7-8)). Even if accepted as uncontroverted, these facts establish
Plaintiff’s participation in a protected activity, but fail to show that there is a causal connection
between that protected activity and any adverse action taken by BMA.
Accordingly, Plaintiff has not established that there are no genuine issues as to any
material fact regarding the establishment of Plaintiff’s prima facie retaliation claim, much less
that Defendant’s liability with regard to retaliation is established.7
3.

Racial Harassment (Hostile Work Environment)

“Where a harassment claim arises out of a supervisor’s conduct, ‘there are four elements
of a hostile working environment claim: (1) that the employee belongs to a protected class; (2)
that the employee was subject to unwelcome sexual harassment; (3) that the harassment was
based on [a protected characteristic]; and (4) that the harassment affected a ‘term, condition, or

7

To the extent the Petition can be construed as raising a retaliation claim pursuant to the ADA, the
foregoing analysis is applicable to such a claim.

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privilege’ of employment.’” E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 453 (5th Cir. 2013)
(en banc) (quoting Lauderdale v. Tex. Dep't of Criminal Justice, 512 F.3d 157, 162-63 (5th Cir.
2007)). To establish a hostile work environment claim, the plaintiff must prove that his or her
work environment “was permeated with discriminatory intimidation, ridicule, and insult so
severe or pervasive as to alter the conditions of employment and create a hostile or abusive
working environment.” Jackson v. Honeywell Int'l, Inc., 601 F. App’x 280, 287 (5th Cir. 2015)
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)); Boh Bros., 731 F.3d at 453.
“Workplace conduct is not measured in isolation; instead, we look to: (1) the frequency of the
discriminatory conduct; (2) the severity; (3) whether it was physically threatening or humiliating
as opposed to mere offensive utterance; (4) whether it unreasonably interferes with an
employee’s work performance; and (5) whether the workplace undermines the plaintiff’s
workplace competence.” Jackson, 601 F. App’x. at 287 (citing Hockman v. Westward
Commc’ns, LLC, 407 F.3d 317, 325-26 (5th Cir. 2004)). “Properly applied, they will filter out
complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing.” Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998) (citation omitted).
In support of summary judgment on her harassment claim, Plaintiff provides the
following factual underpinnings for her claim and references to Exhibit A:
(See page 2, paragraph 8 of Exhibit A;) wherein Sheryl Wilcutt states “Blacks are
known to turn on each other whether whites are involved or not!’ Wilcutt further
engaged in derogatory epithets referring to the black employees as gals, and work
horses, berating and placing them in the class of monkey’s! (See page 7,
paragraph 5, of exhibit A)
...
On page 8 of Exhibit A the plaintiff noted her supervisor referring to black men as
having “big cocks”, which the plaintiff noted as a racial slur and found offensive.
(R. Doc. 29-1 at 4, 6) (emphasis in original).
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Even if uncontroverted, these facts do not establish that Plaintiff was subject to a hostile work
environment as a matter of law. Plaintiff provides no supported factual context for the timing
and frequency of these comments which precludes the court from determining whether the
conduct was so severe or pervasive as to affect the terms and conditions of Plaintiff’s
employment. Without additional context, these facts constitute offensive utterances, offhand
comments, and/or inappropriate teasing that do not rise to the level of severe or pervasive
conduct based on race. See Faragher, 524 U.S. at 778.
For the foregoing reasons, Plaintiff has not established that she is entitled to summary
judgment on her claim of racial harassment.
C.

ADA Claims

The ADA prohibits discrimination against “a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). A plaintiff is “qualified individual” under the ADA if he is
one “who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
“To prevail on a claim of discrimination based on failure to accommodate a disability, the
plaintiff must show that (1) the employer is covered by the statute; (2) she is an individual with a
disability; (3) she can perform the essential functions of the job with or without reasonable
accommodation; and (4) the employer had notice of the disability and failed to provide
accommodation.” Blackard v. Livingston Par. Sewer Dist., No. 12-704, 2014 WL 199629, at *5
(M.D. La. Jan. 15, 2014) (citing Mzyk v. North East lndep. Sch. Dist., 397 F. App’x 13, 16 n.3

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(5th Cir. 2010) (citations omitted)).8 The ADA requires employers to make “[m]odifications or
adjustments to the work environment, or to the manner or circumstances under which the
position held or desired is customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii).
However, “[t]he ADA does not require an employer to relieve an employee of any essential
functions of his or her job, modify those duties, reassign existing employees to perform those
jobs, or hire new employees to do so.” Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th
Cir. 1999) (holding employer was not required to accommodate firefighter who could not fight
fires); see also Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 709 (5th Cir. 1997) (“We
cannot say that [an employee] can perform the essential functions of the job with reasonable
accommodation, if the only successful accommodation is for [the employee] not to perform those
essential functions.”).
Plaintiff has not established that she is entitled to summary judgment on her ADA failureto-accommodate claim. At most, Plaintiff establishes that her lymphedema, which stems from
breast cancer treatment, is a qualified disability. (R. Doc. 29-1 at 5-6); see EEOC v. Womble
Carlyle Sandridge & Rice, LLP, No. 13-46, 2014 WL 2916851 (M.D.N.C. June 26, 2014).
Otherwise, Plaintiff has not pointed to any evidence establishing the remaining elements of her
failure to accommodate claim. As such, summary judgement in favor of Plaintiff is
inappropriate.9

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Plaintiff raises no allegations of an ADA violation based on hostile work environment and/or retaliation.
It also appears that Plaintiff is now attempting to raise, through her memorandum in support of summary
judgment, a new claim that BMA violated the ADA by creating a hostile work environment. (R. Doc. 291 at 5). To the extent Plaintiff is attempting to modify her Petition to allege such a claim, that relief is
denied as untimely and unsupported by the record.
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III.

Conclusion
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment (R. Doc. 29) is

DENIED.
Signed in Baton Rouge, Louisiana, on September 9, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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