Jackson v. Louisiana Department Of Public Safety and Corrections et al

Filing 53

RULING granting 31 Motion for Partial Summary Judgment on Prescription and Prematurity and 32 Motion for Summary Judgment on Plaintiffs Claims of Race Discrimination and Retaliation Under the FMLA and Title VII. Plaintiff Freddie Jacksons claims against the Louisiana Department of Public Safety and Corrections and the Louisiana Correctional Institute for Women are hereby dismissed with prejudice. Signed by Judge James J. Brady on 6/27/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FREDDIE JACKSON

CIVIL ACTION

VERSUS
LOUISIANA DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONS, LOUISIANA
CORRECTIONAL INSTITUTE FOR WOMEN

15-00490-JJB-RLB

RULING
Before the Court are two Partial Motions for Summary Judgment filed by the
Defendants, the Louisiana Department of Public Safety and Corrections and the
Louisiana Correctional Institute for Women (collectively “Defendants”).1 Freddie Jackson
has filed an Opposition to the Motions to which the Defendants have filed a Reply.2 The
Court’s jurisdiction exists pursuant to 28 U.S.C. § 1331. Oral argument is unnecessary.
For the following reasons the Defendants’ Motions shall be granted.
I.

FACTS AND PROCEDURAL HISTORY
In this removal action, Plaintiff Freddie Jackson (“Jackson”) asserts claims against

his employer, the Louisiana Department of Public Safety and Corrections (“DPS&C”) and
the Louisiana Correctional Institute for Women (“LCIW”), for discriminating against him
because of his race, age, and in retaliation for taking medical leave and filing a Charge
with the Equal Employment Opportunity Commission (“EEOC”).3 Jackson began his
tenure as a corrections officer at Elayn Hunt Corrections Center (“EHCC”) in 1993 as a

1
Doc. 31 (Motion for Partial Summary Judgment on Prescription and Prematurity); and Doc. 32 (Motion for
Partial Summary Judgment (on race discrimination and retaliation claims under the FMLA and Title VII).
2
Doc. 43. Jackson also filed a Surreply which the Court considered in preparing this Ruling. Doc. 46.
3
Jackson admitted in his Opposition that none of his claims are premised on any alleged actions taken by
Defendants in 2008. Doc. 40, p. 11.

1

corrections cadet.4 During his tenure at EHCC, Jackson was promoted through the ranks
to Lieutenant.5 Jackson also obtained his Bachelors of General Studies degree in 2012
from Nicholls State University.6
In January of 2013, Warden Jim Rogers hired Jackson to work at LCIW as a
captain.7 Shortly after Jackson began working at LCIW, in May of 2013, he applied for a
corrections major position.8 Jackson, along with six other applicants, including Captain
Shawn Brown-Garrison (“Brown-Garrison”), an African American female, and Captain
Jeremy Avants (“Avants”), a Caucasian male, were interviewed for the open position.9
The interview panel consisted of Assistant Warden Sibil Thibeaux, Assistant
Warden Tenita Harris, Assistant Warden Darlene Carlin, and Deputy Warden Connie
Moore.10 Each interviewer independently ranked her top interviewees for the position.11
All but Deputy Warden Moore listed Brown-Garrison as their top choice.12

Deputy

Warden Moore, a white female, ranked Avants as her top choice.13 Because she believed
that Avants was the better choice for the position, Deputy Warden Moore made the
recommendation to Warden Jim Rogers that Avants be promoted to the position of

4

Doc. 40-2, p. 6.  
Doc. 40-2, p. 6. Jackson testified that he had been promoted to the rank of Lieutenant Colonel, but due
to budget cuts, in December of 2010, he was forced to voluntarily demote to the lieutenant’s position.
6
Doc. 40-2, p. 5.
7
Doc. 32-4, p. 4; Doc. 32-11, p. 1.
8
Doc. 32-4, p. 5. The position for major was posted on May 16, 2013. Doc. 32-7, p. 5.
9
Doc. 32-7, p. 17.
10
Doc. 32-7, p. 7; Doc. 32-10, p. 1.
11
Deputy Warden Moore explained that “[s]ome people just put first person and then their second choice…
some people put first, second, third….” Doc. 32-7, p. 20. It simply depended upon the individual
interviewer. Doc. 32-7, p. 19.
12
Doc. 32-8, p. 2; Doc. 32-9, p. 2; Doc. 32-10; p. 1.
13
Doc. 32-7, pp. 20 and 27.
5

2

major.14

Warden Rogers approved the recommendation and hired Avants for the

position.15 By June 18, 2013, Jackson learned he did not obtain the promotion.16
On August 8, 2013, Jackson filed a Charge with the Equal Employment
Opportunity Commission (“EEOC”), alleging that he had not been promoted because of
his race and age.17 Subsequently, Jackson filed another Charge with the EEOC on
January 14, 2014, alleging that he had been retaliated against for filing the August 2013
Charge.18 In his August 2013 Charge, Jackson claimed that the following retaliatory
actions occurred: he was issued two “Letters of Instruction” by Colonel Melanie Zedlitz;
he was required to shorten his vacation time by one day so that Brown-Garrison could
take her vacation; he was placed on the night shift; and he was instructed to exit his office
whenever a female employee entered.19
On May 26, 2015, Jackson filed a Petition in the 19th Judicial District Court against
Defendants alleging that they had discriminated against him because of his age and race
in violation of Louisiana law, discriminated against him because of his race in violation of
Title VII, and retaliated against him for filing an EEOC Charge in violation of Title VII.20
On July 27, 2015, Defendants removed the suit to federal court.21 On September 13,
2015, Jackson filed a First Amended Complaint wherein he asserted a Family Medical
Leave Act (“FMLA”) retaliation claim.22

14

Doc. 32-7, pp. 20-28; 30-31; Doc. 32-11.
Doc. 32-11, pp. 1-2.
16
Doc. 32-4, p. 6. 
17
Doc. 32-5, p. 3.
18
Doc. 32-6, pp. 3-4.
19
Doc. 32-6, p. 3.
20
Doc. 1-1. The Petition states that a fax copy was received on May 26, 2015, and that the Original Petition
was filed into the record on June 1, 2015. Pursuant to La. R.S. 13:850, it appears to the Court that the May
28, 2015 date serves as the filing date in this case.
21
Doc. 1.
22
Doc. 5.

15

3

Defendants seek dismissal of Jackson’s Title VII and FMLA claims as a matter of
law because Jackson cannot prove his claims against them. Defendants also seek
dismissal of Jackson’s state law claims on the grounds of prescription. Jackson opposes
the Motions.
II.

SUMMARY JUDGMENT LEGAL 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.”23 “An issue is material if its resolution could affect the outcome of the action.”24
“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.”25 “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.’”26 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.’”27 However, the
non-moving party’s “burden is not satisfied with some metaphysical doubt as to the

23

Fed. R. Civ. P. 56(a).
DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005)(quoting Weeks Marine, Inc. v. Fireman’s
Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003)).
25
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)(citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
26
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 (1986))).
27
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)(internal quotations omitted)).
24

4

material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”28
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.’”29 The Court must resolve
all reasonable factual inferences in favor of the nonmoving party.30 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.”31 “Conclusory allegations unsupported
by specific facts, however, will not prevent an 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.’”32
A.

Motion for Partial Summary Judgment: Juridical Entity and Prescription33
In this Motion, Defendants seek the dismissal of LCIW because it is not a juridical

entity capable of being sued under Louisiana law. Under Louisiana law, to possess
capacity to be sued, an entity must qualify as a “juridical person.”34 This term is defined
by the Louisiana Civil Code as “… an entity to which the law attributes personality, such
as a corporation or partnership.”35 It does not appear that Jackson intended to name

28
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)(internal quotations and citations omitted)).
29
Pylant v. Hartford Life and Accident Ins. Co., 497 F.3d 536, 538 (5th Cir. 2007)(quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
30
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
31
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010)(citing Ragas v. Tenn. Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998)).
32
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)(citation omitted)).
33
Doc. 31. In his Opposition, Jackson conceded that he was not asserting any failure to promote claims
from 2008. Due to his concession, Defendants’ argument on this point is moot.
34
Hall v. Louisiana, 974 F.Supp.2d 957, 962 (M.D.La. 2013).
35
La. C.C. art. 24.

5

LCIW as a Defendant, because he argues that “[t]he state is the real entity being sued.”36
LCIW is a correctional center, a division of the Department of Public Safety and
Corrections—Corrections Services. The Court has conducted its own review of the
Louisiana Secretary of State’s commercial database, and has found no corporate listing
for LCIW. Therefore, the Court finds that LCIW is not a juridical entity capable of being
sued. Accordingly, LCIW, only, shall be dismissed as a Defendant in this case. The
Louisiana Department of Public Safety and Corrections shall remain a Defendant in this
case.
Jackson alleged that DPS&C failed to promote him to the open position of major
because of his age and race in violation of Louisiana state law, La. R.S. 23:312(A)(1) and
23:332(A)(1). Defendant DPS&C argues that these claims have prescribed. Jackson
argues without explanation that the continuing violation theory keeps these claims alive.
Initially, the Court finds that the continuing violation theory is inapplicable to failure
to promote claims. Such claims arise from a discrete action, and are not subject to the
continuing violation theory.37 The Court will now turn its attention to DPS&C’s prescription
argument.
In Foreman v. Our Lady of Lourdes Regional Medical Center, Inc.,38 the United
States District Court for the Western District of Louisiana explained the prescriptive
periods for discrete discriminatory actions under the Louisiana Employment
Discrimination Law as follows:
Louisiana discrimination claims under the Louisiana Employment
Discrimination Law [“LEDL”] have a one year prescriptive period. La. R.S.

36

Doc. 40, p. 11.
Heath v. Bd. of Supervisors for S. Univ. and Agric.and Mech. Coll., 850 F.3d 731, 737 (5th Cir. 2017).
38
Foreman v. Our Lady of Lourdes Reg’l Med. Ctr, Inc., Civil Action No. 13-CV-780, 2013 WL 5410135
(W.D.La. Sept. 25, 2013).
37

6

23:303(D). Prescription under the Louisiana statute commences on the day
the act of discrimination occurs. Alleged discriminatory actions by
employers such as termination, demotion, and failures to promote are
discrete acts, which put the employee on notice that he/she may have a
claim. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S.
618, 628, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007)(“termination, failure to
promote, denial of transfer, [and] refusal to hire” are examples of such
discrete employment acts), citing National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002). Under Louisiana law, the prescription period
for such discrete discriminatory acts begins to run on the day the act
occurred. Krull v. Centurytel, Inc., 829 F.Supp.2d 474, 478 (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002)(“A discrete
retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.”).39
Jackson learned that he did not obtain the promotion to the open major position on
June 18, 2013, at the latest.40 Therefore, the prescription period began running on that
date. On August 8, 2013, Jackson filed his EEOC Charge asserting his failure to promote
claims on the basis of race and age.41 Pursuant to La. R.S. 23:303(D), Louisiana law
recognizes a suspension of the one year prescriptive period during the pendency of any
administrative review by the EEOC or the Louisiana Commission on Human Rights.42
However, “[n]o suspension authorized pursuant to this Subsection of this one-year
prescriptive period shall last longer than six months.”43 Applying the suspension period
to Jackson’s case, he had 18 months from June 18, 2013—or December 19, 2014—to
file suit for his claims of race and age discrimination under the LEDL. His lawsuit was not
filed until May 26, 2015. Accordingly, Jackson’s race and age claims brought under the
LEDL are time-barred, and shall be dismissed.

39

Id. at *4. The Foreman Court further noted that “Louisiana’s employment discrimination prohibitions
parallel federal provisions. Therefore, courts frequently use interpretations of federal statutes to guide
interpretation of the state statutes.” (citations omitted). Id. at n. 1.
40
Doc. 32-4, p. 6.
41
Doc. 32-5, p. 3.
42
La. R.S. 23:303(D).
43
La. R.S. 23:303(D).

7

B.

Motion for Partial Summary Judgment: Title VII Failure to Promote and Title VII
and FMLA Retaliation Claims44
1.

Title VII Failure to Promote Claim Based on Race45

In a Title VII failure to promote case such as this, where there is no direct evidence
of DPS&C denying Jackson the promotion because of his race, the McDonnell Douglas
burden-shifting framework applies.46 Under this framework, “a plaintiff challenging a
failure to promote [claim] must first establish a prima facie case, demonstrating that (1)
he was not promoted, (2) he was qualified for the position he sought, (3) he fell within a
protected class at the time of the failure to promote, and (4) the defendant either gave the
promotion to someone outside of that protected class or otherwise failed to promote the
plaintiff because of his race.”47 If the plaintiff makes this showing, then the burden shifts
to the defendant to show a legitimate, nondiscriminatory reason for its decision not to
promote the plaintiff.48 “The defendant’s burden during this second step is satisfied by
producing evidence, which, ‘taken as true, would permit the conclusion that there was a
nondiscriminatory reason’” for the defendant’s adverse hiring decision.49 If the defendant
satisfies its burden, then the plaintiff must then offer sufficient evidence to create a
genuine issue of material fact that the defendant’s reason is a pretext for race-based
discrimination.50 A plaintiff may satisfy this burden by showing that his employer’s stated

44

Doc. 32.
Jackson did not assert a federal age discrimination claim in his Complaints arising under the Age
Discrimination in Employment Act, 29 U.S.C. § 623(a)(1). His age discrimination claim arises under
Louisiana law.
46
McMullen v. Miss. Dept. of Public Safety, 782 F.3d 251, 258 (5th Cir. 2015).
47
Autry v. Fort Bend Independent School Dist., 704 F.3d 344, 346-47 (5th Cir. 2013)(citing Price v. Fed.
Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)).
48
McMullen, 782 F.3d at 258.
49
Price, 283 F.3d at 720 (quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509 (2000)).
50
Id.
45

8

reasons are “false or unworthy of credence, and thus pretextual.”51 In the alternative, a
“fact finder can infer pretext if it finds that the employee was ‘clearly better qualified’ (as
opposed to merely better or as qualified) than the employees who are selected.”52
Strictly for the purpose of this Motion, the DPS&C “assume[s] arguendo that
Plaintiff can meet his prima facie case.”53 Therefore, the Court’s initial focus shall be on
whether the Defendant can satisfy its burden of showing it had a legitimate, nondiscriminatory reason for not promoting Jackson.
a.

DPS&C’s Legitimate, Non-Discriminatory Reason

The Court finds that DPS&C has successfully satisfied its burden of showing it had
a legitimate, non-discriminatory reason for not promoting Jackson.
According to the undisputed evidence in the record, the Department of Corrections’
Human Resources Department (“HR”) followed its normal process for posting the opening
for the major corrections position in May of 2013. In response to the announcement,
several individuals applied for the vacancy and HR determined which individuals met the
minimum qualifications for the position. Along with Jackson, nine other applications were
deemed to meet the minimum qualifications. HR then sent the application packets for
these ten individuals to LCIW to conduct the interviews and make the hiring decision.54
Once the committee received and reviewed the application packets, they selected
seven of the ten applicants for interviews.55

After conducting the interviews, the

51

Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015).
Rowe v. Jewell, 88 F.Supp.3d 647, 663 (E.D.La. 2015)(quoting Churchill v. Tex. Dep’t. of Crim. Justice,
539 Fed. Appx. 315, 318 (5th Cir. 2013)).
53
In a footnote, Defendant concedes to the following: Jackson is an African-American; Avants, the individual
who was promoted, is a Caucasian; and Jackson did not obtain the promotion. Defendant specifically
reserves its right to challenge whether Jackson was qualified for the position at a later date. Doc. 32-1, p.
6, n. 38.
54
Doc. 32-7, p. 17.
55
Doc. 32-7, p. 18.
52

9

interviewers narrowed the field down to the top two people for the position.56 Three of
the interviewers identified Brown-Garrison, an African American female, as their top pick
for the position.57 Whereas Deputy Warden Moore identified Avants, a Caucasian male,
as her first choice.58 Importantly, none of the interviewers selected Jackson as their top
candidate.59
Deputy Warden Moore testified that she did not select Brown-Garrison as her first
choice for several reasons. For instance, Deputy Warden Moore explained that in 2013,
Brown-Garrison had shown that she would not intervene if a fight occurred between
inmates or inmates and staff.60 Because this major corrections position involved providing
security, Brown-Garrison’s unwillingness to intervene when an altercation erupted was a
concern for Deputy Warden Moore.61 Additionally, Deputy Warden Moore explained that
she was trying to change the culture of LCIW, so that long-term LCIW employees were
not automatically promoted over other applicants who were more qualified and possessed
a better work ethic, simply because they had worked at other prisons.62 Deputy Warden
Moore further stated that she picked Avants as her top candidate over both BrownGarrison and Jackson, because she had personal working experience with him and
thought he had a good work ethic.63 Specifically, Deputy Warden Moore had worked with

56

Doc. 32-7, p. 17.
Doc. 32-7, p. 30.
58
Doc. 32-7, p. 20.
59
Deputy Moore testified that she could only recall who her top pick was, and that was Avants. Doc. 32-7,
p. 20. Assistant Warden Thibeaux testified that Jackson was her third pick for the position. Doc. 32-8, p.
2. Assistant Warden Carlin’s Affidavit reflects that she selected Captain Brown-Garrison as her top choice.
Doc. 32-10.
60
Doc. 32-7, pp. 25, 31, and 34. Deputy Warden Moore explained that Brown-Garrison would run from a
fight, and if an altercation were taking place, “she would normally get there after it was handled or pretty
much under control.”
61
Doc. 32-7, pp. 25 and 31.
62
Doc. 32-7, pp. 25-26, 30-32.
63
Doc. 32-7, pp.10, 12, 21, and 23.
57

10

Avants while he was serving as a member of the EHCC chase team searching for an
LCIW inmate escapee; she stated that his performance in this capacity had impressed
her.64 As for Jackson, Deputy Warden Moore did not think that he took constructive
criticism well, particularly with his report writing.65
Although the interview committee interviewed and selected the top applicants, they
did not make the final hiring decision. The final decision belonged to Warden Rogers.66
Of the top two candidates, Deputy Moore recommended that Avants be hired for the
position.67 Assistant Warden Thibeaux had previously informed Deputy Warden Moore
that she would support the decision to promote Avants.68
Warden Rogers ultimately approved of Deputy Moore’s recommendation.69 The
Warden attested to the fact that he was familiar with Avants’ good reputation as a
correctional officer.70 He also thought Avants had proved he was a diligent and hard
worker during the LCIW escape situation.71 As such, Avants was hired and promoted to
the major position in June of 2013.72
Based on the foregoing, the Court finds that DPS&C has successfully articulated
a legitimate, non-discriminatory reason for not promoting Jackson. The burden now shifts
to Jackson to produce sufficient evidence from which a reasonable trier of fact could
conclude that the Defendant’s reason for not promoting him was pretextual.

64

Doc. 32-7, p. 21.
Doc. 32-7, pp. 28 and 32.
66
Doc. 32-8, pp. 3-4.
67
Doc. 32-11, p. 1.
68
Doc. 32-8, pp. 5-6 (Assistant Warden Thibeaux testified that “”Deputy Warden Moore and I had a
discussion after the interviews, and I informed her that although my selection was Shawn Brown, if she
wanted Avants, I would stand by her decision.”).
69
Doc. 32-11, p. 1.
70
Doc. 32-11, p. 1.
71
Doc. 32-11, pp. 1-2.
72
Doc. 32-11, pp. 1-2.
65

11

b.

Was Defendant’s Proffered Reason for not Promoting Jackson Pretextual?

In an attempt to satisfy his burden, Jackson makes two arguments. First, he
argues that he was, in fact, more qualified than Avants.
The Fifth Circuit has recognized that “[a] fact finder can infer pretext if it finds that
the employee was ‘clearly better qualified’ (as opposed to merely better or as qualified)
than the employees who are selected.”73 However, “[s]howing that two candidates are
similarly qualified is insufficient” to make a showing of pretext.74 Instead, a plaintiff “must
present evidence from which a jury could conclude that ‘no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate selected over the plaintiff
for the job in question.’”75 Therefore, “unless the qualifications are so widely disparate
that no reasonable employer would have made the same decision, any differences in
qualifications are generally not probative evidence of discrimination.”76 The Fifth Circuit
has held that “‘better education, work experience, and longer tenure with [a] company
do[es] not establish that he is clearly better qualified.’”77 “Thus, ‘the bar is set high for this
kind of evidence.’”78
Jackson claims that he was more qualified than Avants, because he had a college
degree and 18 years of experience working in corrections, whereas Avants only had 16

73
Campbell v. Zayo Group, LLC, 656 Fed.Appx. 711, 716 (5th Cir. 2016)(quoting EEOC v. La. Office of
Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)). 
74
Toval v. Children’s Hosp., 614 Fed.Appx. 170, 173 (5th Cir. 2015)(citing Price v. Fed. Express Corp., 283
F.3d 715, 723 (5th Cir. 2002)).
75
Irvin v. Ascension Parish School Board, Civil Action No. 15-518, 2017 WL 354854, *15 (M.D.La. Jan. 24,
2017)(quoting Moss v. BMC Software, Inc., 610 F.3d 917, 922-23 (5th Cir. 2010)(quotations omitted); See
also, Toval, 614 Fed. Appx. at 173 (“Instead, ‘the losing candidate’s qualifications must leap from the record
and cry out to all who would listen that he was vastly—or even clearly—more qualified for the subject job.’”
(citation omitted)).
76
Id.
77
Churchill v. Texas Dep’t of Criminal Justice, 539 Fed.Appx. 315, 321 (5th Cir. 2013)(citing Price, 283
F.3d at 723).
78
Irvin, 2017 WL 354854, *15.

12

years of experience. He also argues that because Avants had never worked at LCIW,
Jackson, being an internal applicant with five prior months of experience at LCIW, was
more qualified. Jackson further contends that because he had more supervisory
experience, including his supervision of Avants at some point in time at EHCC, he was
the better candidate. On this point, the Court observes that the evidentiary record shows
that Avants had 16 years of supervisory experience.79 Finally, Jackson points to Avants’
statement that he “honestly thought … [Jackson] would have gotten” the position instead
of him as proof of Jackson being “clearly better qualified” for the position.80
The majority of the evidence upon which Jackson relies is precisely that which the
Fifth Circuit has held does not establish that an employee is clearly better qualified. While
it may be true that Jackson had more working and supervisory experience, and a higher
educational degree than Avants, such factors alone will not satisfy Jackson’s evidentiary
burden.

In fact, when the Court considers both Jackson’s and Avants’ years of

experience, they are more similarly situated, than not.

This, however, should not be

surprising because all of the candidates who were interviewed for the major position met
the minimum requirements for the vacancy. Although subjective criteria was considered
in the promotion decision,81 the Defendant has articulated in some detail a more specific
reason for its decision to promote Avants.82 Warden Rogers promoted Avants because

79

Doc. 40-6, p. 2.
Doc. 40-6, p. 5. 
81
In addition to subjective criteria, the applications, experience levels, violation report histories, leave
usage, and interviews of each applicant were taken under consideration in deciding who to promote. Doc.
32-7, p. 24.
82
The Fifth Circuit has been very clear about the fact that an employer’s use of subjective criteria is
insufficient evidence of pretext. See Manning v. Chevron Chemical Co., LLC, 332 F.3d 874, 882 (5th Cir.
2003)(“[a]bsent evidence that subjective hiring criteria were used as a mask for discrimination, the fact that
an employer based a hiring or promotion on purely subjective criteria will rarely, if ever, prove pretext under
Title VII.”)(quotation omitted)).
80

13

of his work ethic, his reputation as a corrections officer, and his performance in the
recovery of an inmate-escapee from LCIW.83

When asked why she did not select

Jackson as her top choice, Deputy Warden Moore stated that he had issues with
constructive criticism. Ultimately, “[a]n employer must make judgments about individual
qualifications to choose between candidates, and a plaintiff’s argument that such choices
are subjective does not prove pretext.”84 To the extent that Jackson relies on Avant’s
belief that he thought Jackson would have been selected for the promotion, such a
subjective belief, particularly by a non-decision maker in the hiring process, is not
sufficient evidence to support a claim of race discrimination.85
For his second argument, Jackson makes the unsubstantiated argument that
Deputy Warden Moore was the actual decision-maker in determining who was promoted
to the major position. The record shows that it was Warden Rogers, and not Deputy
Warden Moore, who made the hiring decisions. Warden Rogers stated that as the
Warden of LCIW he is “the appointment authority at LCIW meaning that [he] ha[d] the
authority to hire, fire and promote employees.”86 He further explained that generally the
department doing the hiring will recommend an applicant for the position after the
application and interview process is completed. From there the decision to approve or
disapprove the recommendation lies solely with Warden Rogers. Jackson argues that
Deputy Warden Moore “predetermined” that Avants would be promoted and had
“coached” him for the position before his interview; however, he has offered no competent

83

Doc. 32-11, pp. 1-2.
Rowe v. Jewell, 88 F.Supp.3d 647, 664 (E.D.La. 2015).
85
Thomas v. Louisiana Dept. of Social Services, 406 Fed.Appx. 890, 897 (5th Cir. 2010).
86
Doc. 32-11, p. 1.
84

14

summary judgment evidence87 to create a genuine issue of material fact over this issue.
Furthermore, Deputy Warden Moore explained that she encourages all who are
interested in applying for open positions at LCIW to apply, which, in this case, would
include Avants.88 Because Avants had indicated he would like to work at LCIW, Deputy
Warden Moore called him about the job-opening, and told him to apply.89 The fact that
Deputy Warden Moore encouraged Avants to apply for the major position did not strip
Warden Rogers of his role as the final decision-maker. Aside from Jackson’s conclusory
arguments and subjective belief otherwise, he has offered no competent summary
judgment evidence to create a genuine dispute of material fact regarding who was the
ultimate decision-maker.90
Based on the foregoing, the Court finds that Jackson has failed to offer evidence
that would permit a reasonable juror to conclude that DPS&C’s explanation for not

87

Jackson cites to unsworn, and in one instance undated, written statements as support for this contention.
Doc. 40-7 and Doc. 40-8. However, unsworn statements are not proper summary judgment evidence, and
will not be considered by the Court in ruling on either of the Motions. Okoye v. University of Texas Health
Sci. Ctr., 245 F.3d 507, 515 (5th Cir. 2001). Even if the Court were to consider these written statements,
at best they would suggest favoritism by Deputy Warden Moore. Favoritism alone is not evidence of Title
VII discrimination. See Pickens v. CLC of Vaiden, LLC, Civil Action No. 3:06CV147, 2008 WL 480008, *3
(N.D. Miss. Feb. 19, 2008)(“[T]he mere fact that an employee who was allegedly shown favoritism was
white would not support a race discrimination claim, even if such favoritism had been established.”);
Williams v. C.J. Gayfers and Co., 11 F.Supp.2d 854, 858 (S.D. Miss. 1998)(“the fact that an employee of
one race is given more favorable treatment than an employee of a different race is no basis for a lawsuit
under Title VII unless a plaintiff proceeds further and establishes that racial discrimination was a motivating
factor behind the employer’s [decision.]”).
88
Doc. 32-7, p. 9. (Deputy Warden Moore testified that “[a]nyone that has asked me about any positions, I
always tell all – anybody, ‘Apply.’ I still tell people, ‘apply.’”); Doc. 40-6, p. 5.
89
Doc. 32-7, pp. 9-10 (Deputy Warden Moore testified that “[Avants] had indicated that he was interest[ed]
in coming to LCIW, and I did call him and tell him, ‘Look, we have positions opening up. Apply.’”).
90
The Court also finds it worth noting here that Jackson failed to address Defendant’s additional argument
that statistically, he could not prove that he was not promoted because of his race. “A plaintiff may use
statistical evidence in a disparate treatment case ‘to show that an employer’s justification for a
discriminatory act is pretext.’” Hughes v. Dyncorp International, LLC, 2016 WL 4191194, *6 (N.D. Miss.
Aug. 5, 2016)(citation omitted). Going on the offensive, the DPS&C offered undisputed evidence that of
the two available major positions in 2013, one was filled by a Caucasian and the other was filled by an
African-American. DPS&C offered additional evidence showing that of the five available major positions
from 2010 until 2015, one was filled by a Caucasian and the remaining four were filled by AfricanAmericans. As such, the statistical evidence further demonstrates a lack of pretext on the part of Defendant.
Doc. 32-13.

15

promoting him is “false or unworthy of credence and thus pretextual.”91 Accordingly,
Jackson’s Title VII failure to promote claim based upon race shall be dismissed.92
2.

FMLA Retaliation Claim

Jackson claims that DPS&C retaliated against him by denying him 25 days of
vacation time on January 8, 2015 because he took FMLA leave in January and February
of 2014.93 In his Opposition, Jackson argues that he “believe[d]” the letter denying him
leave in January of 2015 is direct evidence of retaliation.94 The January 8, 2015 letter
states as follows:
Your vacation for 2015 has been denied for the following reason(s) in
accordance with LCIW Regulation 1-03-016 Employee Leave.
Leave usage in the previous calendar year will be used to determine
eligibility for vacations.
D. ANNUAL LEAVE (VACATIONS, GENERAL)
5.c.) FMLA can be considered in the determination of granting vacation
time.
Leave already taken by the respective employee during the prior twelve (12)
months.
You have 30 days to respond in writing to this denial letter.95
To constitute “direct evidence” of retaliation at this stage of the analysis, a comment or
action “must be such that, ‘if believed, would prove the existence of a fact (i.e., unlawful
discrimination) without any inferences or presumptions.”96

Actions that require an

inference to demonstrate retaliatory animus do not constitute direct evidence. Although

91

Campbell v. Zayo Group, LLC, 656 Fed.Appx. 711, 714 (5th Cir. 2016).
Considering the findings herein, the Court shall not reach the issue of whether the Defendant is entitled
to the “same actor inference.” Doc. 32-1, p. 9. 
93
Doc. 5, p. 6, ¶10.
94
Doc. 40, p. 10.
95
Doc. 32-16, p. 4.
96
Ray v. United Parcel Service, 587 Fed.Appx. 182, 187 (5th Cir. 2014)(quoting Bodenheimer v. PPG
Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993)).
92

16

the Court addresses the sufficiency of the letter as indirect evidence of pretext below, at
this stage of the analysis, the content of the January 8, 2015 letter would still require that
inferences or presumptions be made in order to demonstrate retaliatory animus.97
Therefore, the Court finds that the January 8, 2015 letter is not direct evidence of
retaliation.
In the absence of direct evidence, as is the case here, “[t]he Fifth Circuit applies
the McDonnell Douglas framework to analyze retaliation claims under the FMLA.”98
Under this framework, an employee must first establish a prima facie case by showing
that: “(1) [he] was protected under the FMLA; (2) [he] suffered an adverse employment
decision; and either (3a) that [he] was treated less favorably than an employee who had
not requested leave under the FMLA; or (3b) the adverse decision was made because
[he] took FMLA leave.”99 If the plaintiff carries his initial burden, then the burden shifts to
the defendant “to articulate a legitimate nondiscriminatory or nonretaliatory reason for the
employment action.”100 If the employer articulates such a reason, then the burden shifts
back to the plaintiff to prove by a preponderance of the evidence that the employer’s
reason “is a pretext for retaliation.”101 Strictly for the purpose of this Motion, Defendant
assumes that Jackson can satisfy the first element. Therefore, the Court’s analysis shall
focus on whether Jackson can satisfy the second and third elements of his prima facia
case.

97

Id. 
Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001).
99
Id.
100
Id. (citing Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, at 319 (5th Cir. 1999)).
101
Id. (citing Chaffin, 179 F.3d at 320).
98

17

To qualify as an “adverse employment action” for purposes of a FMLA retaliation
claim, the action must be “materially adverse,” meaning that it “would dissuade a
reasonable employee from exercising his rights under the FMLA.”102 “The standard is
objective, but the significance of any given act of retaliation will often depend upon the
particular circumstances. Context matters.”103 The Fifth Circuit has explained that in the
context of retaliation, “[a] single denial of leave is not an adverse employment action when
it affects leave on a specific date and time, but not the employee’s amount of or right to
take leave in general, because a reasonable employee would not have found the action
to be materially adverse.”104
In support of his allegation that he was denied leave because he took FMLA leave
in January and February of 2014, Jackson testified that he requested to take 25 days of
vacation in 2015, but was told he would only be allowed to take five vacation days for the
year.105

In spite of what Jackson was told, the evidence shows that he was actually

permitted to take a total of 120.47 hours of annual or vacation leave in 2015.106 Assistant
Warden Wanda Miles, who prepared the letter denying Jackson’s leave request in
January of 2015, attested to the fact that the letter “did not mean that Capt. Jackson was
not permitted to take vacation or not permitted to take annual leave. He could still take
up to three days off in a row, and, with shift work, which is what Capt. Jackson was
working at the time, he would still be able to have a block of time off that was longer than

102

Lushute v. Louisiana, 479 Fed.Appx. 553, 555 (5th Cir. 2012).
Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 945-46 (5th Cir. 2015). 
104
Ogden v. Potter, 397 Fed.Appx. 938, 939 (5th Cir. 2010)(citation omitted).
105
Doc. 32-4, p. 19. He also argues this point in his Opposition. Doc. 40, p. 9.
106
Doc. 32-12, p. 1. Jackson also used a total 24.66 hours of sick leave and a total of 476.38 FMLA leave
in 2015. In sum, Jackson took a total of 621.51 hours of leave in 2015.
103

18

three days in a row.”107 The record reveals that Jackson did, in fact, utilize block times
for vacation in May of 2015, and had seven consecutive days off.108

Given these

undisputed facts, the Court finds that this single denial of Jackson’s leave in January of
2015 does not amount to a materially adverse employment action by Defendants.
Jackson also argues that when he was denied vacation, he lost money that he paid
for is pre-arranged trip. He summarily argues that “[t]his loss of money is categorized as
an adverse employment decision” and cites to the EEOC website.109 The Court finds no
merit in Jackson’s conclusory argument.
Had Jackson been able to show that he experienced an adverse employment
action, the Court finds that his claim would still fail because he cannot satisfy the
causation element. A plaintiff may satisfy the causal connection element by showing
“[c]lose timing between an employee’s protected activity and an adverse action against
him.”110 Therefore, Jackson must provide substantial evidence that “but for” his use of
FMLA leave in January and February of 2014, he would not have been denied vacation
leave in January of 2015. Jackson offers nothing other than the January 8, 2015 letter
denying his request for 25 days of vacation time as support for his claim. DPS&C points
to the fact that this communication denying leave was done in accordance with DOC
policy. Assistant Warden Miles stated that the LCIW Regulation “allowed for FMLA leave

107

Doc. 32-17, p.1. See also Major Miles’ February 5, 2015, memorandum discussing Jackson’s
explanation of his use of FMLA leave for his own personal use. She explains that the letter was being
submitted for review and final disposition of the 2015 vacation approval for Jackson. Doc. 40-10.
108
Doc. 32-12, p. 1. Jackson took leave from May 8-10 and May 13-14. Because Jackson was already
scheduled to be off from May 11-12, he had seven days in a row off of work.
109
Plaintiff cites to the following EEOC website for support: https://www.eeoc.gov/laws/guidance/retaliationqa.cfm. While this web-site does define and provide examples of materially adverse actions, it does not
lend support to Jackson’s conclusory argument.
110
McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007)(quotation omitted).

19

to be considered in determining whether or not vacation time would be granted.”111 There
is no evidence that this was a departure from normal LCIW policy.112 Additionally, at least
ten months of time had lapsed between Jackson’s use of FMLA leave in January and
February of 2014 and the denial of his vacation request in January of 2015. The Court
finds that without other evidence of retaliation, this time lapse of ten months makes it
highly unlikely that retaliation occurred.113
Accordingly, Jackson’s FMLA retaliation claim cannot survive summary judgment
and shall be dismissed.
3.

Title VII Retaliation Claim114

Title VII claims of unlawful retaliation based on circumstantial evidence, as in this
case, are analyzed under the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green.115

As the Fifth Circuit recently explained, “[t]o establish a prima facie

case of retaliation, an aggrieved employee must establish the following elements: ‘(1) [he]
participated in an activity protected by Title VII; (2) [his] employer took an adverse
employment action against [him]; and (3) a causal connection exists between the

111

Doc. 32-17, p. 1.
The Fifth Circuit has explained that other evidence of retaliation, such as “an employment record that
does not support dismissal, or an employer’s departure from typical policies and procedures,” could aide in
satisfying the causal requirement where the temporal proximity is not “sufficiently close.” Feist v. La. Dept.
of Justice, Office of the Atty. Gen., 730 F.3d 450, 455 (5th Cir. 2013). Such evidence is not present in this
case.
113
Gibson v. Verizon Services Organization, Inc., 498 Fed.Appx. 391, 397 (5th Cir. 2012)(“Seven months
is too long to support an inference of a causal link, without additional evidence.”); Harvey v. Stringer, 113
Fed.Appx. 629, 631 (5th Cir. 2004)(“[The Fifth Circuit] has never held that a 10-month time lapse, on its
own, is sufficient to satisfy the causal connection for summary judgment purposes.”); Raggs v. Miss. Power
& Light, 278 F.3d 463, 471-72 (5th Cir. 2002)(5 month lapse insufficient to show retaliation).
114
The Court finds that the “Plaintiff’s Contested Issues of Material Fact” on this particular claim are nothing
more than legal conclusions. As such, these statements are not in and of themselves, facts. Doc. 40-1,
pp. 4-5, nos. 30-41. 
115
Vargas v. McHugh, 630 Fed.Appx. 213, 216 (5th Cir. 2015)(per curium).
112

20

protected activity and the materially adverse action.”116

“If the employee establishes a

prima facie case, the burden shifts to the employer to state a legitimate, non-retaliatory
reason for its decision. After the employer states its reason, the burden shifts back to the
employee to demonstrate that the employer’s reason is actually a pretext for
retaliation.”117 An employee satisfies this burden by showing that the adverse action
would not have occurred “but for” the employer’s retaliatory motive.118
In the University of Texas Southwestern Medical Center v. Nassar,119 the Supreme
Court explained that a plaintiff asserting a Title VII retaliation claim must meet a higher
standard of causation than a plaintiff claiming Title VII discrimination. Unlike a Title VII
discrimination claim where a plaintiff need only show that an employer’s discriminatory
motive “was a motivating factor” for an adverse employment action, a plaintiff asserting a
Title VII retaliation claim “must establish that his or her protected activity was a but for
cause of the alleged adverse action by the employer.”120 Therefore, 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.121
Neither party disputes that Jackson’s filing of an EEOC Charge constitutes a
protected activity necessary to satisfy the first element of his prima facie case.122

116

Dana Taliaferro v. Lone Star Implementation & Electric Corp., no. 16-51152, 2017 WL 2544540, *2 (5th
Cir. June 9, 2017)(quoting Aryain v. Wal-Mart Stores Tex., LP, 534 F.3d 473, 484 (5th Cir. 2008)).
117
Feist, 730 F.3d at 454 (quoting LeMaire v. Louisiana, 480 F.3d 383, 288-89 (5th Cir. 2007)(internal
citation omitted)).
118
Id. (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013)).
119
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013).
120
Id. at 2526 and 2534.
121
Feist, 730 F.3d at 454 (quoting Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996)).
122
“An employee has engaged in a protected activity when she has (1) ‘opposed any practice made an
unlawful employment practice’ by Title VII or (2) ‘made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing’ under Title VII.” Douglas v. DynMcDermott Petroleum
Operations Co., 144 F.3d 364, 372-73 (5th Cir. 1998)(quoting 42 U.S.C. § 2000e-3(a)).

21

Defendants focus their argument on Jackson’s inability to satisfy the second factor to
support his prima facie case.

Additionally, Defendant DPS&C argues that it had a

legitimate, non-retaliatory reason for its actions.
In the context of a Title VII retaliation claim, “an adverse employment action is an
action that is ‘materially adverse’ that ‘might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.’”123 The materiality requirement is
intended to “separate significant from trivial harms.”124 Hence, “this standard does not
encompass the ‘petty slights, minor annoyances, and simple lack of good manners’ that
employees regularly encounter in the workplace.”125 “To determine whether an action is
materially adverse, we look to indicia such as whether an action affected [a] ‘job title,
grade, hours, salary, or benefits’ or caused ‘a job diminution in prestige or change in
standing among … co-workers.’”126
Jackson has alleged that the following instances are retaliatory adverse actions:
(1) Jackson was instructed to exit his office if a female employee entered; (2) he was
denied a uniform in his size; (3) he was threatened with the possibility of losing his job
and cautioned that he should return to the men’s prison; (4) he was accused of calling
women at the prison “bitches and whores”; (5) he was required to return to work with an
essential functions form and doctor’s excuse; (6) he was placed on the night shift; (7) he
received two Letters of Instruction; (8) he was required to shorten his vacation by one

123

Thibodeaux-Woody v. Houston Cmty. Coll., 593 Fed.Appx. 280, 285 (5th Cir. 2014)(quoting Burlington
N. & Santa Fe Ry. V. White, 548 U.S. 53, 68 (2006)).
124
Paul v. Elayn Hunt Correctional Center, 666 Fed.Appx. 342, 346 (5th Cir. 2016)(quoting Aryain, 534
F.3d at 484 (quotation omitted)). 
125
Id. (quoting Aryain, 534 F.3d at 485 (quotation omitted)).
126
Blakney v. Gulfside Casino Partnership, 2016 WL 7392038, *4 (S.D. Miss. Dec. 21, 2016)(quoting Paul,
666 Fed.Appx. at 346 (quotations omitted)).

22

day; (9) he was denied two days of compensatory time; and (10) he was denied funeral
leave.127
The Court finds that incidents (1)-(5) above are not “materially adverse.”128 None
of these incidents affected Jackson’s “job title, grade, hours, salary, or benefits.”129 These
incidents left Jackson’s “duties … unchanged” and they did not cause her to “suffer[ ] a
diminution in prestige or change in standing among her co-workers.”130 At best, these
incidents “fall into the category of ‘petty slights, minor annoyances, and simple lack of
good manners’ … which the Supreme Court has recognized are not actionable retaliatory
conduct.”131 The Court now turns its attention to the remaining four incidents.
Jackson claims that his transfer to the night shift constituted an adverse
employment action. He has presented no other evidence that shows his assignment to
the night shift fundamentally changed the nature of his job with LCIW, or affected his job
title, grade, hours, salary, or benefits. Jackson further testified that this shift change was
only temporary.132 The Fifth Circuit has explained that a shift change, without more, does

127

Doc. 5, p. 5, ¶9.
Jackson testified that he was never written up or disciplined for wearing his Class A uniforms (Doc. 324, p. 12); Jackson testified that on one occasion during the same incident he was accused of calling the
LCIW female employees “bitches and whores” and told “it might be best for [him] to return to Hunt …
because LCIW” is a hard place to work, and he was “going to end up getting terminated if [he] continue[d]
with what [he was] doing (Doc. 40-4, p. 4); Jackson testified that every time he returned from FMLA, if an
Essential Function form had not been faxed by his doctor to Human Resources, he had to submit the form
(Doc. 40-4, pp. 8-9); there is no evidence supporting Jackson’s allegation that he was told he had to leave
his office every time a female entered; rather, the evidence shows that he was instructed not to have the
door closed when a female employee or inmate was in his office alone with him (Doc. 40-3, p. 8; Doc. 3215, pp. 1-2; Doc. 32-16, p. 2).
129
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009). Defendant correctly points out
that Jackson did not allege that these incidents affected his “job title, grade, hours, salary, or benefits” or
caused a “diminution in prestige or change in standing” among his co-workers.
130
Id. 
131
Aryain, 534 F.3d at 485 (quoting White, 548 U.S. at 68).
132
Doc. 40-3, p. 10. Jackson testified he had to cover for Brown-Garrison on the night shift for a tour over
a two week period. After that Jackson stated that he was able to return to his normal shift.
128

23

not constitute an adverse employment action.133

Accordingly, the Court finds that

Jackson’s shift change does not constitute an adverse employment action.
As for the two Letters of Instruction issued to Jackson by Assistant Warden
Melanie Zedlitz on January 10, 2014 and February 6, 2014, it is undisputed that the letters
were not disciplinary in nature.134 On both occasions, Assistant Warden Zedlitz issued
the letters to inform Jackson of something he had done incorrectly and to remedy it in the
future.135 Jackson also admitted in his deposition that such Letters of Instruction “rarely
make it to a Human Resource folder.”136 The undisputed evidence further shows that
Assistant Warden Zedlitz did not know that Jackson had filed an EEOC Charge when she
issued the letters.137 As such, the Court finds that Jackson’s two Letters of Instruction
were not adverse employment actions.
Jackson also contends that he experienced an adverse employment action when
he was required to shorten his vacation by one day. In December of 2013, Jackson was
permitted to take four vacation days (from December 9 to December 14) and scheduled
off for five consecutive days (December 15 to December 19).138 Due to shift coverage
issues, Jackson’s schedule was adjusted and he had to fill in for Brown-Garrison on the
night shift on December 18, 2013.139 He was also scheduled to cover for Brown-Garrison

133
Benningfield v. City of Houston, 157 F.3d 369, 377 (5th Cir. 1998). See also Griffin v. Kennard
Independent School District, 2013 WL 5718873, *5 (E.D. Tex. Oct. 21, 2013)(“the mere moving of Plaintiffs
to the afternoon/night shift would not seem to qualify as an adverse employment action.”).
134
Doc. 32-15, pp. 1-2. Assistant Warden Zedlitz attested to the fact that letters of instruction are not
punitive, and are not considered in assessing whether an employee will receive a raise or promotion. Doc.
32-15, p. 2. Doc. 32-16, pp. 2-3. See Sarwai v. Principi, 226 Fed.Appx. 334, 336 (5th Cir. 2007)(without
any evidence to show that counseling letter had any disciplinary effect, counseling letter not deemed to be
adverse employment action).
135
Doc. 32-15, pp. 1-2.
136
Doc. 40-3, p. 8. 
137
Doc. 32-15, p. 2.
138
Doc. 32-14, p. 1.
139
Doc. 32-9, p. 9. Assistant Warden Harris stated that she needed Jackson to fill in the shift because
there was no one else available at that time. Doc. 32-9, p. 4. Doc. 40-3, p. 8.

24

over a three day weekend from December 20 through December 23.140 Assistant Warden
Harris stated that Jackson was given three additional compensatory days (K-days) off for
any inconvenience this work schedule adjustment may have caused him.141

Because

Jackson had to cover Brown-Garrison on the night-shift, his payroll period was adjusted
for time-keeping purposes.

Due to this adjustment, Jackson’s ability to take five

consecutive days of “vacation” leave from December 9 through December 15 was
affected. When asked about this, LCIW’s Human Resource Analyst, Thrinacia Jenkins
(“Jenkins”), told Jackson that “he could not receive his fifth vacation day [on December
15] because it would give him more than the required hours for [a] two week pay
period.”142 Jenkins explained that he could use his fifth “vacation” day over the next two
week pay period.

Ultimately, this became a moot issue because Jackson was not

scheduled to work on December 15, 2013; therefore, he had still had the day in question
“off”, although it was not coded as a “vacation” day.143 Based on the foregoing, the Court
finds that Jackson’s claim that his vacation was shortened by one day fails to meet the
materiality requirement for an adverse employment action.
The final incidents of alleged adverse employment actions are one and the same.
Jackson testified that his claim of being denied two days of compensatory leave
incorporated his allegation of being denied funeral leave.144 Jackson testified that in the
early part of 2014, he had requested “funeral leave” to attend the funeral of his wife’s
grandmother.145 Jackson’s request to use “funeral leave” was denied, so he used sick

140

Doc. 32-9, p. 9; Doc. 32-14, p. 1.
Doc. 32-9, pp. 8-9; Doc. 32-14, pp. 1-2.
142
Doc. 32-14, p. 1.
143
Doc. 32-9, pp. 6 and 9; Doc. 32-14, p. 1.
144
Doc. 32-4, p. 17.
145
Doc. 32-4, p. 13.
141

25

leave instead.146

He was not disciplined for taking sick leave or for attending the

funeral.147 In the context of this claim, the Court finds that the denial of one type of leave,
while permitting another type of leave, does not amount to an adverse employment action.
Having found that none of the alleged incidents constitute adverse employment
action, the Court could stop its analysis here.148 And yet, the Court finds that even if
Jackson could have satisfied his prima facie burden, the Defendant has satisfactorily met
its burden of showing legitimate, non-retaliatory reasons for its actions.
As for his uniform claim, Jackson was asked what size uniform he needed, issued
two new uniforms in the size he requested, and wore what he was issued.149 Assistant
Warden Thibeaux actually saw Jackson in his uniform and thought that it fit him.150 It was
Thibeaux’s understanding from Jackson’s supervisors that he did not like the BDU/polo
shirt type of uniforms and elected to wear the older Class A uniforms.151 The Defendant
also issued Jackson two Letters of Instruction. It is worth reiterating that Assistant
Warden Zedlitz, who issued the Letters, had no knowledge of Jackson’s EEOC Charge
at the time she issued the Letters.152 The first Letter was issued in response to an
accusation of sexual harassment filed by a cadet against Jackson.153 LCIW wanted to
make sure that Jackson took precautionary measures to protect himself from unfounded
allegations of harassment in the future.154 In her Affidavit, Assistant Warden Zedlitz

146

Doc. 32-4, p. 15.
Doc. 32-4, p. 16.
148
The Court further notes that Jackson made no attempt whatsoever to establish the third element
necessary for his prima facie case of Title VII retaliation.
149
Doc. 32-8, pp. 9-10.
150
Doc. 32-8, pp. 10-11. When asked how she knew the uniforms were in Jackson’s size, Assitant Warden
Thibeaux said when she saw him in his uniform it looked like it fit. Doc. 32-8, pp. 9-11.
151
Doc. 32-8, p. 11.
152
Doc. 32-15, p. 2.
153
Doc. 32-15, p. 1.
154
Doc. 32-15, pp. 1-2.
147

26

explained that all male officers are cautioned against being alone with a female employee
or offender.155 Officers are instructed to keep doors open, and the blinds on any windows
open when speaking to another female employee or offender in their offices.156 As for
the second Letter, Jackson missed a supervisor meeting and was instructed to attend
future meetings or seek prior approval if he was going to be absent.157
The undisputed evidence shows that Jackson was required to come in on the
evening of December 18, when he had originally been scheduled off, for the purpose of
providing shift coverage at LCIW.

Assistant Warden Harris testified that “no one else

was available at that time” and he was given three days of compensatory leave for any
inconvenience this caused him.158 Additionally, Jackson was not granted permission to
take “funeral leave” because the LCIW Employee Handbook delineates those persons for
whom an employee may take funeral leave.159

Grandparents of one’s spouse are not

included in the list of those persons for whom funeral leave is permissible.160
Accordingly, the Court concludes that DPS&C has satisfied its burden of producing
evidence of legitimate, nondiscriminatory reasons for its actions.
Based on the Court’s findings, Jackson’s Title VII retaliation claim shall be
dismissed.
III.

CONCLUSION
For the foregoing reasons, the Motion for Partial Summary Judgment on

Prescription and Prematurity161and the Motion for Partial Summary Judgment on

155

Doc. 32-15, p. 1.
Doc. 32-15, p. 1.
157
Doc. 32-15, p. 2.
158
Doc. 32-9, pp. 4 and 9.
159
Doc. 32-18, p. 24.
160
Doc. 32-18, p. 24.
161
Doc. 31. 
156

27

Plaintiff’s Claims of Race Discrimination and Retaliation Under the FMLA and Title VII162
filed by the Louisiana Department of Public Safety and Corrections and the Louisiana
Correctional Institute for Women are hereby GRANTED. Plaintiff Freddie Jackson’s
claims against the Louisiana Department of Public Safety and Corrections and the
Louisiana Correctional Institute for Women are hereby dismissed with prejudice.
Signed in Baton Rouge, Louisiana, on June 27, 2017.

S

JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

162

Doc. 32. 

28