Bracken v. Welborn, et al

Filing 60

RULING granting 27 Motion for Summary Judgment.The Final Pre-Trial Conference and Jury Trial are CANCELLED. All pending motions are DENIED AS MOOT and shall be terminated by the Clerk of Court's Office. Judgment shall be entered accordingly. Signed by Chief Judge Shelly D. Dick on 7/14/2021. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BARBARA BRACKEN
CIVIL ACTION NO.
VERSUS

20-72-SDD-EWD

DOUG WELBORN, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
CLERK OF COURT FOR EAST BATON
ROUGE PARISH
RULING
This matter is before the Court on the Motion for Summary Judgment1 by
Defendant, Doug Welborn, sued in both his individual and official capacities as Clerk of
Court for East Baton Rouge Parish (“Defendant”). Plaintiff, Barbara Bracken (“Plaintiff”)
has filed an Opposition2 to this motion, to which Defendant filed a Reply.3 For the
following reasons, the Court finds that Defendant’s motion should be granted.
Unless otherwise indicated, set forth below are facts deemed admitted for
purposes of this Motion based on Plaintiff’s failure to comply with Local Rules 56(c) & (f)
of the Middle District of Louisiana. Where Plaintiff failed to cite to record evidence in
denying Defendant’s statements or submitted argument rather than a supported factual
statement, the Defendant’s proffered statements of fact are deemed admitted as not
properly controverted under the Local Rules of Court. Further, the Court will not consider
1

Rec. Doc. No. 27.
Rec. Doc. No. 29.
3
Rec. Doc. No. 35.
2

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1

“statements of fact” offered by Plaintiff that mischaracterize or clearly contradict the record
citation offered in support. Further, hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence at trial do not qualify
as competent opposing evidence.4
I.

FACTUAL BACKGROUND
A. Plaintiff’s Employment with Defendant and Allegations of Sexual
Harassment
Plaintiff was hired in November 2012 as a deputy clerk in the Mortgage Department

of the Clerk of Court for the Parish of East Baton Rouge at the downtown branch.5 Greg
Brown (“Brown”) is currently and has been the Chief Deputy Clerk of Court since October
2009; he is number two in command, working directly under the Clerk of Court, and he
had supervisory authority over Plaintiff for the duration of her employment with
Defendant.6 Brown and Plaintiff knew each other socially prior to Plaintiff’s employment
with Defendant.7 In October 2012, Plaintiff saw Brown at Walmart and advised that she
was looking for a job, and Brown told Plaintiff to apply with the Clerk’s office.8
Soon after, Plaintiff interviewed and became employed as a deputy clerk in the
Mortgage Department where she worked in the City Hall building under the direct
supervision of Howard Burgess (“Burgess”).9

Plaintiff claims that, shortly after her

employment began with Defendant, Brown began sexually harassing her.

Plaintiff

contends that, on her second day of work, Brown called the Mortgage Department and

4

Shields v. Boys Town Louisiana, Inc., 194 F.Supp.3d 512, 523 (E.D. La. 2016)(citing Martin v. John W.
Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987); Fed. R.Civ. P. 56(c)(2)).
5
Rec. Doc. No. 27-2, Bracken Depo. at 22; 491-492.
6
Rec. Doc. No. 27-3, Brown Depo. at 71; Rec. Doc. No. 27-2, Bracken Depo. at 439, 492.
7
Rec. Doc. No. 27-2, Bracken Depo. at 40-47; Rec. Doc. No. 27-3, Brown Depo. at 6, 10.
8
Id. at 63, 139-142; Rec. Doc. No. 27-3, Brown Depo. at 124.
9
Id. at 143-146.
2
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told Plaintiff’s co-worker Imogene Scott (“Scott”) that he wanted “only” Plaintiff to give him
a ride home.10 Plaintiff’s actual testimony does not include the word “only.” Plaintiff
testified that Brown would come to the Mortgage Department and sit in a chair “with his
legs open on that stool knowing that we have to come out for lunch, and he’d sit there
and look at you.
intimidating.12

Never said anything to me.”11

Plaintiff felt this was sexual and

Brown admitted calling Plaintiff into his office on, “at most,” three

occasions,13 but denied that he ever made any comments of a sexual nature to her.14
Plaintiff testified that she believed Brown called her in his office to “look [her] up and
down;”15 “My opinion says he called me in there to look at me, to keep me – to look me
up and down. That’s my opinion on it.”16 Plaintiff also contends Brown discussed his
prior sexual encounters with her and told her “I like looking at you when you walking out.
You know, I like looking at you out my window when you were walking. I like the way you
walk, you know,” which Plaintiff interpreted as sexual advances.17 Plaintiff claims that,
during these meetings, Brown would talk about his family, how he made six figures, and
that he “talked about his sexual encounter(s) with other women, including that he ‘slept’
with a former School Board Member.”18 Plaintiff cites the deposition testimony of Brown
wherein he acknowledges discussing this School Board Member with Plaintiff; however,

10

Rec. Doc. No. 29-1, p. 21 (citing Rec. Doc. No. 29-3, Bracken Depo. at 169-173. Plaintiff cites Ex. 24 to
her deposition, but this Exhibit does not appear in Rec. Doc. No. 29-3; exhibits to Plaintiff’s deposition skip
from 22 to 27.
11
Rec. Doc. No. 29-3, Bracken Depo. at 204:2-5.
12
Id. at 203-204.
13
Rec. Doc. No. 29-3, Brown Depo. at 66-67.
14
Id. at 66.
15
Rec. Doc. No. 29-3, Bracken Depo. at 176.
16
Id.
17
Id. at 441-442.
18
Rec. Doc. No. 29-1, p. 21. Plaintiff offers no record citation for this statement. Plaintiff’s counsel is
cautioned that, on this argument, the brief is an unsupported and overzealous embellishment which invites
Rule 11 inquiry.
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Brown denied discussing any sexual encounters with Plaintiff and expressly denied that
he told Plaintiff that he had ever “slept with” this particular person.19 During one encounter
in 2013, Plaintiff contends Brown made a sexual demand in asking her to give him a
“hug.”20
Plaintiff contends she reported Brown’s alleged sexual harassment to Burgess, her
direct supervisor, in accordance with the Clerk’s policy;21 yet, no action was ever taken to
remedy the situation. Plaintiff contends that all disciplinary action taken against her, as
will be set forth below, was in retaliation for rejecting Brown’s sexual advances and
reporting his alleged behavior to Defendant.
Burgess became ill and retired in 2015.22 Jeff Hickerson (“Hickerson”), who is
employed by Defendant as the Clerk of Court Land Records Administrator, and who
directly oversees the supervisor of the Mortgage Department, oversaw and supervised
the Mortgage Department while Burgess was out sick.23 Plaintiff contends that Scott was
the “acting supervisor” for the Mortgage Department when Burgess was out because she
was the senior employee in the department and assumed some of the responsibilities
that had been Burgess’ job duties.24 Although Hickerson acknowledged that Scott was
“overseeing things” as the “most senior person” in the department at the time,25 he also
testified that “she wasn’t a supervisor,”26 and would not agree that she was an “acting
supervisor,” stating:
19

Rec. Doc. No. 29-3, Brown Depo. at 68.
Rec. Doc. No. 29-3, Bracken Depo. at 185.
21
Id. at 481-483.
22
Rec. Doc. No. 27-5, Wells Depo. Vol. 2 at 47.
23
Rec. Doc. No. 27-4, Hickerson Depo. at 7-8, 16, 18; Rec. Doc. No. 27-5, Wells Depo. at 88.
24
Rec. Doc. No. 29-3, Bracken Depo. at 214-221, 480-481; Rec. Doc. No. 29-2, Hickerson Depo. at 74-80,
85-88.
25
Rec. Doc. No. 29-2, Hickerson Depo. at 76.
26
Id.
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20

Well, I said she was – she wasn’t acting. She didn’t have a title. She was
just kind of assuming some of the responsibility, but she was not a
supervisor nor an acting supervisor. She was just kind of assuming the role
to make sure the department was, you know, flowing as it should.27
Burgess was ultimately replaced by Denise Becnel Jagneaux (“Jagneaux”) in the role of
supervisor of the downtown Mortgage Department.28
Plaintiff was provided a copy of the Clerk’s Handbook containing Defendant’s
employment policies at the beginning of her employment with Defendant and on various
occasions throughout.29 The Handbook sets forth the Clerk’s Equal Opportunity policy
as follows:
3.5 Equal Employment Opportunity
The Clerk’s Office is an Equal Employment Opportunity Employer which
does not discriminate based on race, color, religion, gender, age, sexual
orientation, pregnancy, national origin, disability, military status, marital
status, or any other legally protected status. . . .
If you believe this policy has been violated, you must report the incident to
the Human Resources Department immediately. If you believe that an
employee within the Human Resources Department has violated this policy,
you must report the incident to the Chief Deputy immediately.30
The Clerk’s policy for defining, prohibiting, and reporting discrimination, harassment,
retaliation in the workplace is set forth as follows:
3.8 Discrimination, Harassment and Retaliation
The Clerk of Court is committed to treating all employees equally and to
providing a positive working environment free of any form of discrimination,
harassment or retaliation. . . .

27

Id. at 85:9-14.
Rec. Doc. No. 27-2, Bracken Depo. at 235-236. Plaintiff “denies” this statement of fact although she
testified to it (Rec. Doc. No. 29-1, p. 3); see also Rec. Doc. No. 27-3, Brown Depo. at 76-77; Rec. Doc. No.
27-4, Hickerson Depo. at 41; Rec. Doc. No. 27-5, Wells Depo. at 76; Rec. Doc. No. 27-6, Plunkett Depo.
at 101-102.
29
Rec. Doc. No. 27-2, Bracken Depo. at 153-154; Rec. Doc. No. 27-7.
30
Id. at 154-163, Ex. G (EEO Policy).
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28

Every employee is equally responsible for implementing this policy and the
state and federal laws prohibiting discrimination, harassment and retaliation
based upon race, color, religion, gender, age, national origin, sexual
orientation, marital status, disability, military status, pregnancy status or any
other legally protected status.
Discrimination, harassment and retaliation will not be tolderated by the
Clerk’s office. Any employee who engages in discrimination, harassment or
retaliation in violation of federal and state law or of the Clerk’s policy will be
subject to discipline, including but not limited to reprimand, suspension
without pay or termination.
***
Retaliation is an adverse consequence to an employee including
suspension, demotion, dismissal or disparate treatment. Retaliation against
an individual for reporting or participating in an investigation of a claim of
harassment or discrimination is a violation of state and federal law.
Retaliation, like harassment or discrimination, is a serious violation of this
policy which will result in disciplinary action up to and including termination.
REPORTING INCIDENTS OF DISCRIMINATION, HARASSMENT OR
RETALIATION
Incidents of discrimination, harassment or retaliation, regardless of the
offender’s identity or position must be reported to the reporting employee’s
immediate supervisor, the department administrator or the Human
Resources Department immediately. If the employee, for whatever reason
feels uncomfortable reporting the incident to his or her immediate
supervisor, the department administrator and the Human Resources
Department, the employee must report the incident to the Chief Deputy.31
The Handbook contained a policy outlining the Clerk’s expectations for employee’s
standard of conduct.32 The Handbook contained a progressive discipline policy33 and a
policy on how employees should handle difficult situations.34 Plaintiff testified that, at the
beginning of her employment, Brown informed her that she was expected to have “good
customer service” and “to treat the employees well, and . . . treat the customers well.”35

31

Id., Ex. G (Retaliation policy).
Id., Ex. G (Standards of Conduct Policy, p. P-DISCOVERY-RESPONSES-000220)(Rules of Conduct
policy, p. PDISCOVERY- RESPONSES-000221).
33
Id., Ex. G (Infraction and Violations policy, p. P-DISCOVERY-RESPONSES-000224).
34
Id., Ex. G (Dealing with Difficult Situations policy, p. P-DISCOVERY-RESPONSES-000225).
35
Id. at 155. Plaintiff inexplicably denies this fact. Rec. Doc. No. 29-1, p. 4.
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32

B. Work Disputes and Initial Disciplinary Action – April 2015
In April 2015, Plaintiff had disagreements with Karen Lands (“Lands”), a co-worker
in the Mortgage Department.36 Defendant contends Plaintiff made a comment about
needing help at the front counter, which Lands overheard and believed was directed at
her, and Lands “reacted negatively,” began to cry, and reported the incident.37 Plaintiff
testified that Lands was complaining about Plaintiff’s tone of voice during the incident.38
Hickerson concluded that Plaintiff was mostly in the wrong in causing the disputes with
Lands.39
Plaintiff received her first formal discipline on April 23, 2015, for “voicing
departmental issues/problems out loud instead of talking to the supervisor or
administrator.”40 Hickerson testified that Plaintiff “has a way about how she says
something, and it’s not always pleasant. . . that’s what we dealt with on a pretty regular
basis with Ms. Bracken.”41 Hickerson testified that, although Scott was performing some
supervisory duties in the Mortgage Department, she was the wrong person for Plaintiff to
approach with departmental complaints.42 Plaintiff submitted a written rebuttal to the
counseling report.43

Human Resources Manager Melanie Wells (“Wells”) ultimately

signed and agreed with the counseling report.44
Plaintiff disputes Defendant’s account of what transpired between herself and

36

Rec. Doc. No. 27-4, Hickerson Depo. at 32-33, 48, 63; Rec. Doc. No. 27-5, Wells Depo. at 75. Plaintiff’s
“denial” does not counter this fact.
37
Rec. Doc. No. 27-2, Bracken Depo. at 207, 216.
38
Id. at 207-208; Rec. Doc. No. 27-4, Hickerson Depo. at 75.
39
Rec. Doc. No. 27-4, Hickerson Depo. at 33, 48-49. Plaintiff’s “denial” does not counter this fact.
40
Rec. Doc. No. 27-2, Bracken Depo. at 214-215; Rec. Doc. No. 27-4, Hickerson Depo. at 74, 78-80; Rec.
Doc. No. 27-5, Wells Depo. at 79-81, 92; Rec. Doc. No. 27-9.
41
Rec. Doc. No. 27-4, Hickerson Depo. at 91.
42
Id. at 84-86.
43
Rec. Doc. No. 27-2, Bracken Depo. at 216; Rec. Doc. No. 27-9. Plaintiff inexplicably “denies” this fact.
44
Rec. Doc. No. 27-5, Wells Depo. at 84, 90.
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Lands in April 2015. Plaintiff believes the reprimand was unfounded because she did not
raise her voice or speak directly to Lands.45 Plaintiff acknowledged that Hickerson
advised her to go to him with department complaints rather than Scott.46

Plaintiff

maintains that her 2017 satisfactory performance review undermines Hickerson’s
assertion that she had a bad attitude or problem with her tone of voice in performing her
work duties.47 Plaintiff also claims that there are no documents demonstrating that
Hickerson gave her verbal counseling regarding her attitude although she claims this is
“required by the Clerk’s own policy.”48
Defendant counters that Plaintiff’s 2017 performance review does include a
comment that Plaintiff needs to improve her “communication and cohesiveness with
coworkers and supervisors.”49 As Hickerson explained, this language was “a nice way of
saying that [she] needed to work on [her] attitude.”50 Further, although Plaintiff claims
this comment on her evaluation was not written at the time she was given the performance
review,51 Defendant points to Plaintiff’s testimony that “Hickerson told [Jagneaux] to write
that while I was in the office with her.”52
C. Continuing Work Issues and Disciplinary Actions – 2015-2017
Issues between Plaintiff and Lands continued into late 2015. In November 2015,
Wells met with the employees of the Mortgage Department, including Plaintiff, Lands,

45

Rec. Doc. No. 29-3 at 188-189, Bracken Depo., Ex. 6.
Id. at 189.
47
Id. at 190-191, Bracken Depo., Ex. 9.
48
Rec. Doc. No. 29-1, p. 4 (citing Rec. Doc. No. 29-2, Hickerson Depo. at 49-52).
49
Rec. Doc. No. 27-33 at 4.
50
Rec. Doc. No. 35-1, Hickerson Depo. at 54.
51
Rec. Doc. No. 29-3, Bracken Depo. at 237-239.
52
Rec. Doc. No. 27-2, Bracken Depo. at 239:1-5.
46

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8

Nancy Brummel (“Brummel”), and Pam Areceneaux (“Arceneaux”).53

Employees

reported in these interviews that Plaintiff “talked down” to Lands, murmured under her
voice at Lands, and was “mean.”54 Plaintiff told Wells that Lands “need[ed] to do more.”55
Wells met with Hickerson to discuss the problems between Plaintiff and Lands and
indicated to Wells that the disagreement between them was “ongoing.”56
In 2016 and 2017, Jagneaux, who was Plaintiff’s direct supervisor, had
conferences with Plaintiff “about her attitude,” because she was “argumentative with other
employees and [Ms. Jagneaux] to the point of being very upsetting and disruptive.”57
Jagneaux brought the issues to Hickerson and expressed her frustration in dealing with
Plaintiff.58 Hickerson testified that he had “many conversations” and undocumented
verbal counselings with Plaintiff regarding her attitude, negativity, rudeness, tone and her
conflict with coworkers; in response, Plaintiff would “talk over” him and “always denied
that she was a problem” or that “she did anything.”59
On August 18, 2017, Plaintiff was issued another written corrective action.60 This
incident involved Lands accusing Plaintiff of not wanting to help her and talking to her with
the “wrong tone.” Plaintiff “threw her hands in the air,” to indicate “I can’t do anything
else.”61 Hickerson felt this was “another one of those rude situations where [Plaintiff]

53

Rec. Doc. No. 27-5, Wells Depo. at 125-127, 138-139, 141, 147, 150-154; Rec. Doc. No. 27-10; Rec.
Doc. No. 27-11. Plaintiff’s “denial” does not counter this fact.
54
Id. at 147, 152-153, VOL. 2, pp. 28-36, 37-38, 40-41; Rec. Doc. No. 27-10; Rec. Doc. No. 27-11. Plaintiff’s
“denial” does not counter this fact.
55
Id. at 150-151, 153-154. Plaintiff’s “denial” does not counter this fact.
56
Rec. Doc. No. 27-5, Wells Depo. at 143.
57
Rec. Doc. No. 27-12.
58
Rec. Doc. No. 27-4, Hickerson Depo. at 42, 44-46, 50, 52, 158, 188.
59
Id. at 38-39, 43-44, 46-50, 72, 90, 107-108, 127-128, 187-188, 228.
60
Rec. Doc. No. 27-2, Bracken Depo. at 241-244; Rec. Doc. No. 27-4, Hickerson Depo. at 112-114; Rec.
Doc. No. 27-13.
61
Id. at 226-227, 242; Rec. Doc. No. 27-4, Hickerson Depo. at 105, 108, 119.
9
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voiced out loud after being asked numerous times not to behave in that manner;”
corrective action was warranted because of her “outburst,” “rude manner,” “negativity in
front of everybody,” and “what she said and how she said it.”62 Hickerson issued this
corrective action on his own without consulting Brown.63
Both Plaintiff and Lands were provided corrective actions for the incident and
advised that “this constant behavior” would not be tolerated, and they needed “to find a
way to communicate or risk suspension or termination.”64 Although both employees were
issued corrective actions, Hickerson did not find that Lands was at fault;65 rather, he
determined Plaintiff was at fault after interviewing other employees and considering the
statement submitted by Arceneaux.66 Hickerson then met with Plaintiff, advising her they
were there because of her tone and further stating, “why do we keep coming here
concerning your tone?”67 Plaintiff admitted in her deposition that she had a “loud tone”
that “people get intimidated by.”68 Plaintiff testified that she told Hickerson essentially that
this is the way she is, she could not change, and she “cannot sound like a white girl.”69
Wells testified that Plaintiff told her: ““This is who I am. I can’t change. This is who I am.”70
Plaintiff believed the August 18, 2017 corrective action to be ““unwarranted” and “falsely
written,”71 and she submitted a written rebuttal expressing her beliefs.72

62

Rec. Doc. No. 27-4, Hickerson Depo. at 105-107, 109, 118.
Id. at 136; Rec. Doc. No. 27-3, Brown Depo. at 204-205.
64
Id. at 114, 120-121; Rec. Doc. No. 27-15; Rec. Doc. No. 27-2, Bracken Depo. at 243; Rec. Doc. No. 2713.
65
Id. at 133-135.
66
Id. at 137-143, 169-170, 220-221, 223, 225-227; Rec. Doc. No. 27-5, Wells Depo. at 125.
67
Rec. Doc. No. 27-2, Bracken Depo. at 249.
68
Id. at 227; Rec. Doc. No. 27-14. Plaintiff “denies” her own testimony, arguing she “did not have issues
with her tone of voice.” Rec. Doc. No. 29-1, p. 8.
69
Id. at 265-266.
70
Rec. Doc. No. 27-5, Wells Depo. at 106.
71
Rec. Doc. No. 27-2, Bracken Depo. at 246-247; Rec. Doc. No. 27-4, Hickerson Depo. at 128.
72
Id. at 254, 256; Rec. Doc. No. 27-5, Wells Depo. at 109-110; Rec. Doc. No. 27-16.
10
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63

Plaintiff paints a different picture of the events described above occurring between
November 2015 through August of 2017.

First, Plaintiff contends that Arceneaux

defended Plaintiff in one of the incidents involving Lands; yet, she was still reprimanded.73
In response to every statement offered by Defendant regarding Plaintiff’s poor attitude
and negative tone in dealing with co-workers, Plaintiff counters with her performance
evaluations identifying her as a “hard worker” and “good employee;” her work was
“excellent,” and there were no “problems with her job performance.”74 Further, Plaintiff
cites the declaration of co-worker Shirley Dupre (“Dupre”), who described Plaintiff as
professional, cooperative, a dedicated worker, and someone who performed her job
exceptionally well.75

Plaintiff further contends that the lack of documentation for

Hickerson’s alleged verbal counselings with Plaintiff regarding her tone and her
satisfactory performance evaluations undermine Hickerson’s credibility regarding
Plaintiff’s attitude.76 Plaintiff also claims Hickerson told her that he did not want to write
her up in 2017, but was directed to do so by Brown,77 which Plaintiff believes evidences
retaliatory motive on the part of Brown. Further, Plaintiff contends Lands was not issued
a corrective action for the incident; rather, her report was merely Hickerson’s account of
the incident, and Lands was not disciplined.78
Defendant acknowledges that Arceneaux emailed Hickerson on August 15, 2017
regarding the 2017 dispute between Plaintiff and Lands and communicated that Plaintiff
was not in the wrong in this incident; however, Hickerson testified that, while he took

73

Rec. Doc. No. 29-3 at 203, Ex. 14 to Bracken Depo.
Rec. Doc. No. 29-4, Plunkett Depo. at 33; Rec. Doc. No. 29-2, Hickerson Depo. at 31-32.
75
Rec. Doc. No. 29-2 at 228, Dupre Declaration.
76
Rec. Doc. No. 29-2, Hickerson Depo. at 49-52.
77
Rec. Doc. No. 29-3, Bracken Depo. at 248.
78
Rec. Doc. No. 29-3, Wells Depo. at 113-118; Rec. Doc. No. 29-2, Hickerson Depo., Exs. 69, 70.
74

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11

Arceneaux’s email into account, it was contradicted by other witness accounts, and
Hickerson ultimately decided to issue the corrective action to Plaintiff.79
Regarding Plaintiff’s 2017 satisfactory performance evaluation and insistence that
she did not have a bad work attitude or tone of voice issue, Defendant claims Plaintiff’s
characterizations of Hickerson’s and Pamela Plunkett’s evaluations of her performance
are incorrect. While Hickerson testified that Plaintiff’s “work was good,” “she seemed
dedicated to the work,” and she was a “good worker,” he also testified that she had
“personality issues” because she had a “difficult personality,” an “attitude,” and she was
“confrontational” with Lands.80 Hickerson characterized Plaintiff as “rude” and as having
“outburst[s]” and “negativity in front of everybody,” meaning “it is what she says and how
she says it.”81 Further, Hickerson testified that Plaintiff created an intimidating work
environment in the Mortgage Department because the way she talked to people “[was]
not always pleasant.”82 Plaintiff’s subsequent supervisor Plunkett did, indeed, testify that
Plaintiff was a “very hard worker” and her “work was excellent;”83 however, Plunkett also
testified that, at some point, Plaintiff’s attitude towards her changed, and Plaintiff was
rude, making snide remarks and inappropriate comments.84
Defendant denies the sentiment expressed by Dupre that Plaintif was
“professional, cooperative, [a] dedicated worker, and performed her job exceptionally
well,” noting that Dupre was a Clerk of Court employee who did not work in the same
department as Plaintiff and did not supervise Plaintiff.

To the contrary, Plaintiff’s

79

Rec. Doc. No. 27-4, Hickerson Depo. at 137, 139-141.
Id. at 32, 103.
81
Id. at 47, 105-106.
82
Id. at 187.
83
Rec. Doc. No. 27-6, Plunkett Depo. at 33.
84
Id. at 44-48, 57.
80

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12

supervisors— Hickerson, Jagneaux, Plunkett, Kahne Cupit (“Cupit”) and Brandon Abadie
(“Abadie”) —did not share this opinion of Plaintiff.85
Further, Defendant notes that both Jagneaux and Hickerson testified that
Jagneaux was present for several conferences with Plaintiff regarding her attitude.86
Defendant posits that Plaintiff’s denial of this fact is apparently based on her
misassumption and speculation that Jagneaux had not signed the statement attributable
to her because Plaintiff believed that she would have signed her name as “Denise
Becnel,” her maiden name.87 However, Jagneaux submitted a declaration verifying this
was her statement and it was true and correct.88
Defendant rebuts Plaintiff’s claim that Hickerson was directed by Brown to issue
the August 18 2017 corrective action with Hickerson’s testimony wherein he expressly
denies this assertion.89 Defendant also admits that the correction action issued to Lands
was merely a report of the incident and not discipline.90
D. September 2017 Transfer to Airline Office
On September 15, 2017, the supervisors of the Mortgage Department met with
Brown and Wells to further discuss Plaintiff.91 Wells drafted a summary of the meeting92
wherein the decision was made to transfer Plaintiff to the Mortgage Department located

85
Rec. Doc. No. 27-3, Brown Depo. at 79, 81, 97-98, 106-107, 126-127, 204-205; Rec. Doc. No. 35-1,
Hickerson Depo. at 31-32, 84, 103, 136, 156, 183; Rec. Doc. No. 35-2, Wells Depo. at 163, 173; Rec. Doc.
No. 35-3, Plunkett Depo. at 33, 146-147, 149, 158-159, 162-163, 171, 187; Rec. Doc. No. 27-22, Abadie
Declaration, ¶¶ 5-6; Rec. Doc. Nos. 27-9, 27-12, 27-13, & 27-19.
86
Doc. No. 27-4, Hickerson Depo. at 38-39, 41-47, 50- 52, 94, 122; Rec. Doc. No. 27-12, Jagneaux
Declaration.
87
Rec. Doc. No. 27-2, Bracken Depo. at 236.
88
Rec. Doc. No. 27-12, Jagneaux Declaration.
89
Rec. Doc. No. 35-1, Hickerson Depo. at 83-84, 136, 156.
90
Id. at 133-135.
91
Rec. Doc. No. 27-3, Brown Depo. at 203; Rec. Doc. No. 27-4, Hickerson Depo. at 159-160, 167-168,
188; Rec. Doc. No. 27-5, Wells Depo. at 155-157, 165-167.
92
Rec. Doc. No. 27-5, Wells Depo. at 156; Rec. Doc. No. 27-17.
13
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at the Clerk’s Airline Highway office.93 Brown and Wells felt that a transfer would provide
Plaintiff with another chance and a “fresh start.”94 Hickerson agreed with the transfer and
thought it would be a “good move” because Plaintiff would have a private office, “quiet
space” to concentrate, and she would “not have to deal with coworkers so much.”95 Her
supervisors did not consider Plaintiff’s transfer to the Airline office as discipline.96 Plaintiff
switched job locations with Clerk’s employee Reagan Callendar (“Callendar”).97
Plaintiff was informed of the transfer on September 15th and began working at the
Airline office the same day.98 Plaintiff testified that she understood that she was being
sent to work at the Airline office because she was having problems working downtown.99
At the Clerk’s Airline Branch Office, Plaintiff was supervised by the Administrator of the
Airline office, Brandon Abadie, and two co-supervisors, Pamela Plunkett and Kahne
Cupit.100 Defendant contends that, at the time of her transfer, the supervisors at the
Airline office did not know about Plaintiff’s write ups, issues and/or conflicts at the
Downtown office.101
Plaintiff’s job duties changed at the Airline branch. Sheriff sales are not performed
at the Airline Branch office; thus, instead of performing expropriations or sheriff’s sales as
she had done at the Downtown office, Plaintiff focused on cancellations and liens at the

93

Rec. Doc. No. 27-3, Brown Depo. at 83; Rec. Doc. No. 27-4, Hickerson Depo. at 194; Rec. Doc. No. 275, Wells Depo. at 155, 167, 168.
94
Id. at 83, 92, 135;
95
Rec. Doc. No. 27-4, Hickerson Depo. at 65-66, 68, 70-71, 159-160, 170, 171.
96
Rec. Doc. No. 27-5, Wells Depo. at 94.
97
Rec. Doc. No. 27-4, Hickerson Depo. at 66-68, 159, 166; Rec. Doc. No. 27-5, Wells Depo. at 167.
98
Rec. Doc. No. 27-2, Bracken Depo. at 269; Rec. Doc. No. 27-4, Hickerson Depo. at 173, 178-179.
99
Id. at 281-282; Rec. Doc. No. 27-18.
100
Rec. Doc. No. 27-3, Brown Depo. at 93; Rec. Doc. No. 27-4, Hickerson Depo. at 36-37; Rec. Doc. No.
27-6, Plunkett Depo. at 10-11.
101
Rec. Doc. No. 27-6, Plunkett Depo. at 15-16.
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Document Number: 67937 

Airline office.102 Plaintiff testified that she was “very happy” and came to “love” working
at the Airline office; she liked having her own private office, helping customers, and not
being bothered.103
Plaintiff contends this transfer was involuntary and was in retaliation for reporting
the prior sexual harassment by Brown. Plaintiff claims Hickerson told her that he and
Glen Fortune (“Fortune”), Training Director, had to “fight for [Ms. Bracken] to stay at [her]
job” and that they did not know “why Mr. Brown hated” her.104 Plaintiff also claims that, a
few days before she was involuntarily transferred, Fortune met with her and “prayed for
her.”105 Plaintiff cites the deposition testimony of Wells to support her claim that the
decision to transfer her was made solely by Brown.106 However, while Wells testified that
the first she heard about Plaintiff’s transfer was from Brown, she also testified, in the
portion cited by Plaintiff, that Brown advised her that Fortune recommended the
transfer.107
Plaintiff testified that Brown told her in this meeting that she would not have been
transferred if she had “[done] what [he] said.”108 Plaintiff argues that “doing what he said”
meant comply with his sexual advances,109 but this assertion appears nowhere in her
testimony regarding this incident. Plaintiff also contends that she was stripped of job
duties and her work hours changed.110 Plaintiff contends she was never told that she was

102

Rec. Doc. No. 27-2, Bracken Depo. at 270-271, 456, 458, 463, 495; Rec. Doc. No. 27-3, Brown Depo.
at 81-82, 91-92; Rec. Doc. No. 27-4, Hickerson Depo. at 163-166; Rec. Doc. No. 27-5, Wells Depo. at 176178.
103
Id. at 274-277; Rec. Doc. No. 27-4, Hickerson Depo. at 179, 190.
104
Rec. Doc. No. 29-3, Bracken Depo. at 259-61, 469-470.
105
Id.
106
Rec. Doc. No. 29-3, Wells Depo. at 155-157; 169.
107
Id. at 169.
108
Rec. Doc. No. 29-3, Bracken Depo. at 262.
109
Rec. Doc. No. 29-1, p. 10.
110
Rec. Doc. No. 29-3, Bracken Depo. at 463-465.
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being transferred because of her work performance issues but, rather, because Callendar
was having work performance issues.111 Plaintiff claims that, contrary to Defendant’s
assertion otherwise, Wells disclosed Plaintiff’s disciplinary history to Abadie in October
2017.112 Plaintiff apparently denies that anyone supervised her at the Airline branch other
than Brown.113
In response, Defendant notes that Hickerson and Fortune both deny ever telling
Plaintiff that Brown “hated her” or that they had to “fight for [her] to stay at her job.”114
Brown denied ever making the statement that he hated Plaintiff.115 Defendant denies that
Brown solely made the decision to transfer Plaintiff and cites multiple sources of evidence
that Fortune first raised the transfer as an option.116 Indeed, Plaintiff admitted that Fortune
was “part of the team that put [the transfer] together.”117 Defendant also contends Plaintiff
has mischaracterized her own testimony in stating that Brown told her she would not have
been transferred if she had “‘[done] what [he] said’ [complied with his sexual advances].”
Defendant quotes Plaintiff’s actual testimony on this: “Barbara, if you would have did what
I said, we wouldn’t have to bring Denise from across the street.”118

Defendant argues

that the context of this testimony reveals that Plaintiff took this to mean that she would
have been made the supervisor, a position she never asked or applied for, and

111

Rec. Doc. No. 29-2, Hickerson Depo. at 65-68; Rec. Doc. No. 29-3, Wells Depo. at 167-168; Rec. Doc.
No. 29-3, Bracken Depo. at 283; Rec. Doc. No. 29-4, Plunkett Depo. at 42-44, 111-112.
112
Rec. Doc. No. 35-2, Wells Depo. at 180-185.
113
Rec. Doc. No. 29-1, p. 11 (citing Rec. Doc. No. 29-3, Brown Depo. at 71-72).
114
Rec. Doc. No. 35-1, Hickerson Depo. at 182-183; Rec. Doc. No. 35-2, Wells Depo. at 161; Rec. Doc.
No. 35-5, Fortune Declaration.
115
Rec. Doc. No. 29-3, Brown Depo. at 147.
116
Id. at 135; Rec. Doc. No. 35-1, Hickerson Depo. at 166; Rec. Doc. No. 35-2, Wells Depo. at 169; Rec.
Doc. No. 35-5.
117
Rec. Doc. No. 29-3, Bracken Depo. at 261.
118
Id. at 262-263.
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presumably did not want.119
Defendant also challenges Plaintiff’s contention that there was no mention of her
attitude, antagonistic tone, or unprofessional conduct at the transfer meeting, citing Wells’
notes from the meeting discussion.120 Further, the email sent by Plaintiff regarding this
meeting undermines her claim: “I was scolded by Mr. Brown regarding my alleged
conduct with my coworker, Ms. Lands and then I was told by Mr. Brown that I was being
transferred to the Airline office.”121 Defendant admits that Plaintiff’s work hours and job
duties were changed following the transfer. Finally, Defendant acknowledges that, as the
Chief Deputy Clerk of Court, Brown remained general supervisor over all employees of
the Clerk of Court; however, he was not Plaintiff’s day-to-day supervisor and did not know
about the corrective actions issued by her direct supervisors.122
E. October 2018 Corrective Action and Suspension
In October 2018, Plunkett observed that Plaintiff had begun to treat her differently,
made “snide remarks,” acted “rude,” and “talk[ed] bad . . . or talk[ed] down to” her.”123
Other employees at the Airline branch had also complained to Plunkett about Plaintiff
being rude.124 Plunkett spoke with her co-supervisor Cupit about Plaintiff; Cupit stated,
“If I were you, I would not take that from her.”125 Thus, Plunkett complained to the Airline
Administrator, Brandon Abadie.126 Plunkett was verbally disciplined by Abadie for using

119

Id.
Rec. Doc. No. 27-17.
121
Rec. Doc. No. 27-18.
122
Rec. Doc. No. 27-2, Bracken Depo. at 492; Rec. Doc. No. 27-3, Brown Depo. at 71, 107, 126-127, 135,
152-154, 204-205.
123
Rec. Doc. No. 27-6, Plunkett Depo. at 41-42, 44, 46-49, 154-155.
124
Id. at 55-59.
125
Id. at 55, 61.
126
Id.
17
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120

a curse word when speaking with Plaintiff.127
Plaintiff was issued a disciplinary action on October 24, 2018 for her interaction
with Plunkett.128 Plaintiff felt that Plunkett did not properly greet her, so she approached
Plunkett’s doorway and made a “smart remark” to the effect that the “old women have to
help the young women” learn to say good morning.129 Plunkett complained to Abadie that
she was “tired and couldn’t do it anymore.”130 Plunkett agreed with the disciplinary action
given to Plaintiff.131
Abadie made the decision to write up Plaintiff on his own, without consulting
Brown.132 Abadie told Plaintiff that the reason for the corrective action and her suspension
was because five employees had complained to him about her rudeness, she had a “tone”
when talking to a coworker about a phone call, and she displayed a bad attitude when
asked to train a coworker.133 In accordance with the Clerk’s progressive discipline policy,
and because this was not her first corrective action, Abadie decided to suspend
Plaintiff.134 Plaintiff was suspended for one week without pay,135 from October 24, 2018
through November 1, 2018; thereafter she took a one-week vacation from November 2,
2018 through November 7, 2018. She returned to work on November 8, 2012.136

127

Id. at 89-90.
Rec. Doc. No. 27-19.
129
Id.; Rec. Doc. No. 27-2, Bracken Depo. at 291, 298-299, 445; Rec. Doc. No. 27-5, Wells Depo. at 186187; Rec. Doc. No. 27-6, Plunkett Depo. at 45-46, 151-152.
130
Rec. Doc. No. 27-6, Plunkett Depo. at 54, 158, 169.
131
Id. at 108, 213-214.
132
Rec. Doc. No. 27-22, Abadie Declaration, ¶ 5; Rec. Doc. No. 27-6, Plunkett Depo. at 149, 158-159, 162163, 171.
133
Rec. Doc. No. 27-2, Bracken Depo. at 297-299, 310, 437, 445-447; Rec. Doc. No. 27-5, Wells Depo. at
132-133, Vol. 2 pp. 18-21; Rec. Doc. No. 27-6, Plunkett Depo. at 99-100, 102, 214-216.
134
Rec. Doc. No. 27-22, Abadie Declaration, ¶ 6; Rec. Doc. No. 27-6, Plunkett Depo. at 187.
135
Rec. Doc. No. 27-2, Bracken Depo. at 447, 484; Rec. Doc. No. 27-3, Brown Depo. at 107-108; Rec.
Doc. No. 27-5, Wells Depo. at 180-181.
136
Id. at 313, 450-452; Rec. Doc. No. 27-3, Brown Depo. at 101, 109-111; Rec. Doc. No. 27-5, Wells Depo.
at 216-217, Vol. 2 p. 59; Rec. Doc. No. 27-20.
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128

Plaintiff felt the corrective action and suspension were “unjust,” “unfair,” not truthful
and an attack on her character.137

During her suspension, Plaintiff wrote rebuttal

letters.138 Wells considered Plaintiff’s rebuttal but ultimately stood by the suspension.139
Plaintiff generally denies the veracity of Defendant’s version of the events that led
to the October 2018 corrective action; however, she often fails to cite supporting record
evidence for her assertions of fact, or she cites record evidence that does not support her
assertion.

Plaintiff contends she did not say to Plunkett that “the young ones have to

teach the old people some manners,” rather, Plaintiff claims she said in a joking manner
that “the older women have to help the younger women” after Plunkett slammed a door
while Plaintiff was training another employee.140
Plaintiff also contends Plunkett never complained about Plaintiff’s “rudeness” until
her deposition. Plaintiff points to Plunkett’s testimony that she did not document or report
the instances when her Airline co-workers allegedly complained about her rudeness.141
Plaintiff also claims that she was suspended without any opportunity to defend herself.142
Plaintiff maintains that Brown made the decision to suspend her.143
Plaintiff also claims that her co-workers engaged in the same general behavior of
which she was accused, but they were not disciplined as harshly as she. Specifically,
Plaintiff points to the fact that Plunkett admittedly cursed at Plaintiff during a work

137

Id. at 294, 296, 301.
Id. at 297, 302; Rec. Doc. No. 27-21.
139
Rec. Doc. No. 27-5, Wells Depo. at 203-207, 214-216.
140
Rec. Doc. No. 29-3, Bracken Depo. at 290-291.
141
Rec. Doc. No. 29-4, Plunkett Depo. at 55-58.
142
Rec. Doc. No. 29-3, Bracken Depo. at 296-301, 448, 467-468. Plaintiff also claims Abadie told her he
did not want to write her up, and she cites to her deposition testimony at pp. 496-497. Rec. Doc. No. 29-1,
p. 12. These pages were not submitted by Plaintiff as an exhibit, and the Court cannot verify support for
this claim.
143
Plaintiff cites Exhibit 62 to Brown’s Depo. in support of this assertion; this exhibit does not appear in
Plaintiff’s submitted exhibits.
19
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138

exchange, but Plaintiff contends Plunkett was not disciplined for this or other similar
conduct.144
Plaintiff makes the unsupported claim that she met with Wells and Hickerson on
October 31, 2018 and “conveyed to them that she was being harassed.”145
Defendant counters Plaintiff’s assertions, citing Plunkett’s testimony that she
discussed Plaintiff’s attitude with Cupit and Abadie on two to three occasions.146 Further,
Plunkett testified that employees in the Recording Department, specifically Karen Pope
and Kindra Patin, complained to her about Plaintiff’s rude comments, being rude to
customers, and being rude in general.147 Defendant also contends Plaintiff did have an
opportunity to defend herself as she wrote her version of events on the corrective action
and submitted two rebuttal letters.148 Defendant disputes that Plunkett was not disciplined
for using a curse word in a conversation with Plaintiff; the record demonstrates that
Plunkett was given a verbal counseling by Abadie, and Plunkett immediately apologized
to Plaintiff.149
Defendant acknowledges that Plunkett and Plaintiff dispute the exact wording of
the comment that gave rise to the October 2018 corrective action; however, Defendant
maintains that, in either scenario, Plunkett did not take the comment as joking but as
insubordinate.150

Also, Defendant admits that Brown ultimately approved Plaintiff’s

suspension after the fact,151 but Defendant maintains that Abadie made the decision to
144

Id. at 293-295, 484; Rec. Doc. No. 29-4, Plunkett Depo. at 90-95, 209-211.
Rec. Doc. No. 29-1, p. 14. The citation to Bracken’s Depo., pp. 305-306 does not support this assertion,
and p. 315 was not submitted in Plaintiff’s exhibits.
146
Rec. Doc. No. 27-6, Plunkett Depo. at 49-50, 54-55; 59, 61, 108.
147
Id. at 55-58.
148
Rec. Doc. No. 27-2, Bracken Depo. at 287-290; Rec. Doc. No. 27-19; Rec. Doc. No. 27-21.
149
Rec. Doc. No. 27-6, Plunkett Depo. at 89-90, 93, 96.
150
Id. at 44-47, 213-214; Rec. Doc. No. 27-19.
151
Rec. Doc. No. 27-3, Brown Depo. at 107; Rec. Doc. No. 35-2, Wells Depo. at 190-192.
20
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145

suspend Plaintiff without consulting Brown.152
F. November 13, 2018 Final Written Warning and Separation
On Tuesday, November 13, 2018, Brown, Wells, Abadie, Plunkett, and Cupit met
with Plaintiff153 to provide Plaintiff with a final warning, to “get on the same page,” and to
explain that they were not going to tolerate any more disruptions and the expectations for
moving forward.154 Defendant maintains there was no intent to terminate Plaintiff at this
meeting.155 Brown began the meeting by presenting a final written warning letter to
Plaintiff and asking her to read it.156 Plaintiff stated she “was not going to read the letter”
and was “not going to sign anything.”157 Plaintiff accused Brown of being there to “harass”
and “bother” her, she could “hashtag me too,” Brown had watched her out of his window,
she told Howard Burgess, and Brown sent Lands and Plunkett to have her written up.158
Defendant admits Brown replied that it was not true no one would believe her.159 Plaintiff
then accused Abadie and Plunkett of wrongdoing.160 Plaintiff pointed directly at Plunkett,

152

Rec. Doc. No. 27-22, Abadie Declaration at ¶ 5; Rec. Doc. No. 27-6, Plunkett Depo. at 149, 158-159,
162-163, 171, 187; Rec. Doc. No. 35-2, Wells Depo. at 180-181, Vol. 2 at 59-60.
153
Rec. Doc. No. 27-2, Bracken Depo. at 316, 318; Rec. Doc. No. 27-3, Brown Depo. at 102; Rec. Doc.
No. 27-5, Wells Depo. at 224-225; Rec. Doc. No. 27-6, Plunkett Depo. at 61-62; Rec. Doc. No. 27-22,
Abadie Declaration; Rec. Doc. No. 27-23, Cupit Declaration.
154
Rec. Doc. No. 27-5, Wells Depo. at 220; Rec. Doc. No. 27-3, Brown Depo. at 102-103, 105; Rec. Doc.
No. 27-22, Abadie Declaration.
155
Rec. Doc. No. 27-5, Wells Depo. at 220.
156
Rec. Doc. No. 27-2, Bracken Depo. at 318-319; Rec. Doc. No. 27-3, Brown Depo. at 103; Rec. Doc. No.
27-5, Wells Depo. at 225; Rec. Doc. No. 27-6, Plunkett Depo. at 64.
157
Id. at 319; Rec. Doc. No. 27-3, Brown Depo. at 103, 214; Rec. Doc. No. 27-5, Wells Depo. at 225; Rec.
Doc. No. 27-6, Plunkett Depo. at 64, 68, 76-87, 130; Rec. Doc. No. 27-22, Abadie Declaration; Rec. Doc.
No. 27-23, Cupit Declaration; Rec. Doc. No. 27-24.
158
Rec. Doc. No. 27-2, Bracken Depo. at 319, 442; Rec. Doc. No. 27-3, Brown Depo. at 114; Rec. Doc.
No. 27-5, Wells Depo. at 48, 52-53, 65, 68, 225; Rec. Doc. No. 27-25; Rec. Doc. No. 27-6, Plunkett Depo.
at 69-71, 203-204.
159
Id. at 319; Rec. Doc. No. 27-3, Brown Depo. at 137, 199.
160
Id. at 320, 322; Rec. Doc. No. 27-3, Brown Depo. at 114, 143; Rec. Doc. No. 27-5, Wells Depo. at 53,
227-228; Rec. Doc. No. 27-6, Plunkett Depo. at 68, 105-106; Rec. Doc. No. 27-22, Abadie Declaration;
Rec. Doc. No. 27-24.
21
Document Number: 67937 

stating she had “a problem” with her and said that she was the “culprit.”161 The meeting
became loud.162 The witnesses described Plaintiff’s behavior during his meeting as: “out
of control,” “yelling,” “unprofessional,” “disruptive,” “disrespectful,” “hostile,” and
“inappropriate.”163
According to Plaintiff, Brown told her that she could either sign the letter or she
could leave.164 However, the supervisors present at the meeting reported that Plaintiff
stated she was resigning her employment.165 Wells printed a resignation form (using the
Clerk’s form), but Plaintiff refused to sign the form.166 Plaintiff clocked out, gathered her
belongings and left the office.167 Plaintiff disputes that she resigned on November 13th,
stating instead that she was “pushed out of the door.”168 Defendant contends that, even
if she had not resigned, Wells would have recommended her termination due to her
conduct in the meeting.169
Subsequently, Plaintiff sent the Clerk’s office a letter dated December 3, 2018,
regarding “wrongful termination.”170 Plaintiff testified she was not seeking her job back;

161

Rec. Doc. No. 27-5, Wells Depo. at 53, 225, 230; Rec. Doc. No. 27-6, Plunkett Depo. at 66, 68, 88-89,
97; Rec. Doc. No. 27-24.
162
Rec. Doc. No. 27-5, Wells Depo. at 225-226; Rec. Doc. No. 27-6, Plunkett Depo. at 72, 108-109, 113.
163
Rec. Doc. No. 27-3, Brown Depo. at 114, 214; Rec. Doc. No. 27-5, Wells Depo. at 49, 56, 207, 251;
Rec. Doc. No. 27-23, Cupit Declaration; Rec. Doc. No. 27-6, Plunkett Depo. at 216-217.
164
Rec. Doc. No. 27-2, Bracken Depo. at 321.
165
Rec. Doc. No. 27-3, Brown Depo. at 102, 113-114, 136, 139, 193-195, 214; Rec. Doc. No. 27-5, Wells
Depo. at 57, 228-229, 231-232, 251-252; Rec. Doc. No. 27-6, Plunkett Depo. at 134-135, 137; Rec. Doc.
No. 27-22, Abadie Declaration.
166
Rec. Doc. No. 27-2, Bracken Depo. at 326; Rec. Doc. No. 27-3, Brown Depo. at 138; Rec. Doc. No. 275, Wells Depo. at 231; Rec. Doc. No. 27-6, Plunkett Depo. at 137-141; Rec. Doc. No. 27-22, Abadie
Declaration; Rec. Doc. No. 27-26.
167
Rec. Doc. No. 27-2, Bracken Depo. at 321-322; Rec. Doc. No. 27-3, Brown Depo. at 142; Rec. Doc. No.
27-5, Wells Depo. at 231; Rec. Doc. No. 27-6, Plunkett Depo. at 183; Rec. Doc. No. 27-22, Abadie
Declaration.
168
Rec. Doc. No. 27-2, Bracken Depo. at 327.
169
Rec. Doc. No. 27-5, Wells Depo. at 251-252.
170
Rec. Doc. No. 27-2, Bracken Depo. at 344; Rec. Doc. No. 27-3, Brown Depo. at 123; Rec. Doc. No. 275, Wells Depo. at 40-41; Rec. Doc. No. 27-27.
22
Document Number: 67937 

instead, she wanted payment of wages as a result of her suspension.171 In response to
this letter, the Clerk had the allegations investigated, but Plaintiff opted not to participate
in the investigation.172
Plaintiff acknowledges this meeting took place but contends the final written
warning was based on “false information” because the letter indicated she did not want
to train a co-worker, and Plaintiff claims she had no problem training the co-worker and
had no prior disagreements with other co-workers.173 Plaintiff stated during the meeting
that she “could not take this anymore.”174 Plaintiff denies that she ever stated that she
wanted to resign, states that she did not get loud, and insists that she was terminated
during this meeting.175 Plaintiff further contends that, following her termination, Brown
made a statement to Plunkett: “what took you so long to get rid of [Plaintiff].”176 Defendant
acknowledges that Brown made this statement177 but denies that it demonstrates
retaliatory intent. Brown admitted this was a “very inappropriate” statement and he was
“wrong for making it,”178 however Defendant notes that the statement was made after
Plaintiff was already gone, and was made in jest as Plunkett did not terminate Plaintiff.179
On March 12, 2019, Plaintiff filed a Charge of Discrimination with the EEOC
(“Charge”) alleging discrimination based on race, sex, and retaliation between October

171

Id. at 351-352.
Id. at 361-364; Rec. Doc. No. 27-3, Brown Depo. at 115, 118; Rec. Doc. No. 27-5, Wells Depo. at 41,
43-44, 252-253.
173
Rec. Doc. No. 29-3, Wells Depo. at 19-22, 22-23, 61-63, 71; Exhibit F to Wells Depo. Plaintiff offers
other statements that are unsupported by record citations and will not be considered by the Court.
174
Rec. Doc. No. 29-4, Plunkett Depo. at 138-141; Rec. Doc. No. 29-3, Bracken Depo. at 318-327
175
Id. at 321, 323-324, 461.
176
Id. at 325.
177
Rec. Doc. No. 27-3, Brown Depo. at 205; Rec. Doc. No. 27-6, Plunkett Depo. at 35-36.
178
Id. at 206.
179
Id. at 205, 206, 210, 212; Rec. Doc. No. 27-6, Plunkett Depo. at 38, 40, 41, 218.
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172

24, 2018 and November 13, 2018.180 On November 19, 2019, the EEOC issued a
dismissal and a “Notice of Right to sue.” The EEOC issued a “no cause” determination
stating, “[b]ased upon its investigation, the EEOC is unable to conclude that the
information obtained established violations of the statutes… No finding is made as to any
other issue that might be construed as having been raised by this charge.”181 Plaintiff
subsequently filed this lawsuit, alleging retaliation under Title VII of the Civil Rights Act of
1964.182
Defendant now moves for summary judgment on Plaintiff’s claim, which Plaintiff
has opposed. Although Defendant initially moved for summary judgment on the issue of
EEOC exhaustion, Defendant has abandoned that claim in its Reply,183 thus the only
issue before the Court is Plaintiff’s Title VII retaliation claim.
II.

LAW AND ANALYSIS
A. Summary Judgment
In reviewing a party’s motion for summary judgment, the Court will grant the motion

if (1) there is no genuine issue of material fact, and (2) the mover is entitled to judgment
as a matter of law.184 This determination is made “in the light most favorable to the
opposing party.”185 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

180

Rec. Doc. No. 10-1, p. 2; see Rec. Doc. No. 12-1, p. 21.
Rec. Doc. Nos. 1-1, ¶ 10; 10-1, p. 2.
182
42 U.S.C. § 2000e.
183
Rec. Doc. No. 35 at 6, n. 38.
184
FED. R. CIV. P. 56(a).
185
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (citing United States v. Diebold, Inc., 369 U.S.
654, 655 (1962); 6 V. MOORE, FEDERAL PRACTICE 56.15(3) (2d ed. 1966)).
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181

nonmovant’s case.’”186 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.’”187
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.’”188
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.’”189 All reasonable factual
inferences are drawn in favor of the nonmoving party.190 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.”191 “Conclusory allegations unsupported by specific
facts . . . will not prevent the award of summary judgment; ‘the plaintiffs [can]not rest on
his allegations . . . to get to a jury without any “significant probative evidence tending to
support the complaint.”’”192

186

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)); Celotex Corp. v. Catrett, 477 U.S. 317,
323-25 (1986).
187
Rivera v. Houston Indep. Sch. 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)).
188
Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little, 37 F.3d at 1075).
189
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 (1986)).
190
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
191
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
192
Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994)
(quoting Anderson, 477 U.S. at 249).
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B.

Retaliation

Plaintiff contends her termination was in retaliation for reporting the sexual
harassment she suffered by Brown’s alleged conduct. To establish a prima facie case of
retaliation under the traditional McDonnell Douglas framework, “the plaintiff must
establish that: (1) [s]he participated in an activity protected by Title VII; (2) h[er] employer
took an adverse employment action against h[er]; and (3) a causal connection exists
between the protected activity and the adverse employment action.”193 An employee
engages in activity protected by Title VII when the employee has “opposed any practice
made an unlawful employment practice” by Title VII or “made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing” under Title
VII.194
If the plaintiff establishes a prima facie case, then the employer has the burden of
production to provide “a legitimate, non-discriminatory reason” for the adverse
employment action.195 If the employer meets this burden, then the plaintiff has the burden
to prove that the proffered reason is pretextual.196 “A plaintiff may establish pretext by
showing that a discriminatory motive more likely motivated her employer's decision, such
as through evidence of disparate treatment, or that her employer's explanation is
unworthy of credence.”197 Ultimately, in order to survive a motion for summary judgment,
a plaintiff must show “a ‘conflict in substantial evidence’” on the question of whether the

193

McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
42 U.S.C. § 2000e–3(a); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
195
Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004).
196
Id.
197
Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013).
26
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194

employer would not have taken the adverse employment action but for the protected
activity.198
1. Direct Evidence
Plaintiff contends that the following statements by Brown constitute direct evidence
of retaliation such that summary judgment is not proper, and she is not required to
demonstrate a prima facie case of retaliation under the McDonnell Douglas framework:
(1) Ms. Bracken would not be transferred had she “[done] what [he] said”
(in reference to his sexual advances), (2) Ms. Bracken had “big mouth” (in
reference to her complaints), (3) Ms. Bracken would have been promoted
but for her “mouth”, (3) “what took you so long to get rid of” Ms. Bracken,
(4) Ms. Bracken was “going to do what [Mr. Brown] said she was going to
do”, (5) “nobody would be [sic] believe” Ms. Bracken’s complaints of sexual
harassment, and (6) that Ms. Bracken was going to sign the retaliatory final
written warning or “else”. Hickerson’s statement to Ms. Bracken that he and
Mr. Fortune did not know why Mr. Brown “hated” her also demonstrates
direct evidence of retaliation.199
Plaintiff relies on the decision of the Fifth Circuit in Fabela v. Socorro Indep. Sch.
Dist.,200 wherein the court held that an employer’s statement during a termination meeting
that the plaintiff was a “problem,” and his reference to her filing an EEOC complaint years
prior, constituted direct evidence of retaliation.201
Defendant counters that the statements attributed to Brown do not constitute direct
evidence of retaliation because none of the statements refer to Plaintiff’s engaging in
protected activity opposing sexual harassment. Defendant argues:
Tellingly, the only way Plaintiff can make even a plausible argument that
these statements constitute direct evidence is by adding parenthetical or
198

Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019) (quoting Hernandez v. Yellow Transp.,
Inc., 670 F.3d 644, 658 (5th Cir. 2012)).
199
Rec. Doc. No. 29 at 19.
200
329 F.3d 409 (5th Cir. 2003), overruled on other grounds by Smith v. Xerox Corp., 602 F.3d 320, 330
(5th Cir. 2010)).
201
Id. at 416-417.
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bracketed statements, such as: (1) “Ms. Bracken would not have been
transferred had she “[done] what [he] said” [complied with his sexual
advances]; and, (2) “Ms. Bracken had a big mouth (in reference to her
complaints)”. The fact that Plaintiff added these parenthetical statements
to “fill in” the inference of retaliatory motive demonstrates exactly why they
cannot be deemed direct evidence: standing alone, the quotations do not
refer to any protected activity or retaliatory motive.202
The Court agrees. Plaintiff’s statements are only direct evidence if the bracketed
statements were actually made by Brown rather than supplied as interpreted by Plaintiff’s
counsel. Indeed, without counsel’s additional interpretive phrasing, the comments could
easily reference the purported reason for Plaintiff’s discipline – the manner in which she
spoke to supervisors and co-workers, i.e., her “mouth.” The statements offered, without
Plaintiff’s interpretive brackets, do not constitute direct evidence of retaliation. Further,
the comment that Brown made to Plunkett after Plaintiff’s termination – “what took you so
long to get rid of her” – was made after Plaintiff’s termination and, again, does not relate
to Plaintiff’s engagement in protected activity. The Court finds that Plaintiff has not
presented direct evidence of retaliation; therefore, she must proceed under the traditional
McDonnell Douglas burden-shifting framework.
2. Protected Activity
Defendant contends Plaintiff has not provided evidentiary support for her claim that
she engaged in protected activity under Title VII. Defendant bases this argument on the
fact that, even accepting as true all of Plaintiff’s allegations relating to Brown’s conduct
towards her, such conduct did not rise to actionable harassment under the law.
Defendant further contends that, even if Plaintiff subjectively believed, in good faith, that
Brown had sexually harassed her, such a belief based on the nature of the conduct is

202

Rec. Doc. No. 35 at 8-9 (original emphasis).

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28

objectively unreasonable. Additionally, Defendant claims that stating to Burgess that
Brown “approached her wrongfully” is too vague to constitute protected activity under Title
VII.
Although the Court agrees with Defendant that Brown’s alleged conduct does not
rise to level of actionable harassment under Title VII under an objective reasonableness
standard, the Court will give Plaintiff the benefit of the doubt, as the non-movant, and
assume for the sake of this ruling that Plaintiff’s report to Burgess in 2013 constituted Title
VII protected activity. Indeed, the Fifth Circuit has repeatedly held that the opposition
clause does not actually require the opposed conduct to, in fact, violate Title VII. Rather,
it is “enough that [the plaintiff] reasonably believed the employment practice to be
unlawful.”203
However, the Court concludes that this is the only instance of protected activity
supported by the record. Plaintiff claims she engaged in protected activity on September
19, 2017, in connection with the Airline transfer meeting; however, the record does not
reflect that Plaintiff complained of Brown’s alleged harassment during this meeting;
Plaintiff’s letters submitted October 26, 2018 and November 31, 2018 likewise contain no
such complaints.204 Outside of the 2013 reporting to Burgess, there is no record evidence
of Plaintiff’s alleged opposition to employment practices she perceived as unlawful.
The Court also finds that Plaintiff’s comments directed at Brown during the final

203

EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 240 (5th Cir. 2016)(citing Payne v. McLemore's Wholesale
& Retail Stores, 654 F.2d 1130, 1137–40 (5th Cir. 1981)); see Cuellar v. Southwest General Emergency
Physicians, P.L.L.C., 656 F. App'x 707, 710 (5th Cir. 2016) (per curiam) (“[A] viable Title VII retaliation claim
does not necessarily depend on a viable harassment or discrimination claim.” (emphasis omitted)). While
the reasonable belief standard is “in tension with the plain text” of the statute, Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 401 n.2 (5th Cir. 2013), it “remains good law.” Rite Way, 819 F.3d at 240.
204
Rec. Doc. Nos. 27-21 & 27-27-18, respectively.
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warning meeting of 2018 do not constitute Title VII protected activity under the law and
cannot form the basis of a retaliation claim. Defendant relies on the decision of the district
court for the Southern District of Mississippi in Burns v. Blackhawk Management Corp.,205
which the Court finds instructive here. In Burns, the plaintiff claimed he was terminated
in retaliation for complaining about an alleged violation of the Fair Labor Standards Act.
The defendant employer argued that the plaintiff was not fired for complaining about this
alleged violation but for the “unreasonable manner in which [he] complained.”206 The
court set forth the applicable Fifth Circuit guidance for such an argument:
In the analogous context of Title VII retaliation jurisprudence, the Fifth
Circuit has recognized that while an employee has the right to oppose an
employer's unlawful employment practices, “not all ‘opposition’ activity is
protected,” Jefferies v. Harris County Community Action Ass'n, 615 F.2d
1025, 1036 (5th Cir.1980), and that “some conduct, even if in sincere
opposition to unlawful employment practices ..., may be so disruptive or
inappropriate as to fall outside the protections” of the act, be it Title VII or
the FLSA, see Jones v. Flagship Intern., 793 F.2d 714, 728 (5th Cir.1986).
See also Rosser v. Laborers' International Union, Local 438, 616 F.2d 221,
223 (5th Cir.), cert. denied, 449 U.S. 886, 101 S.Ct. 241, 66 L.Ed.2d 112
(1980) (“There may arise instances where the employee's conduct in
protest of an unlawful employment practice so interferes with the
performance of his job that it renders him ineffective in the position for which
he was employed. In such a case, his conduct, or form of opposition, is not
covered by § 704(a).”). “In determining whether particular conduct
constitutes [protected] activity ..., this circuit has required a balancing test:
‘[T]he courts have required that the employee conduct be reasonable in light
of the circumstances, and have held that “the employer's right to run his
business must be balanced against the rights of the employee to express
his grievances and promote his own welfare”.’” Jones, 793 F.2d at 728
(quoting Jefferies, 615 F.2d at 1036); see also Payne v. McLemore's
Wholesale & Retail Stores, 654 F.2d 1130, 1145 (5th Cir.1981) (“Courts
have required that the employee's conduct be reasonable in light of the
circumstances and that the conduct not be unjustifiably detrimental to the
employer's interests.”). “If, under this balancing test, the manner in
which the employee complains is found to be unreasonable, it falls
outside the protection of the statute; the employee's conduct then may
205
206

494 F.Supp.2d 427
Id. at 433.

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30

be deemed an independent, legitimate basis for [the adverse
employment action].” Rollins v. State of Florida Dept. of Law Enforcement,
868 F.2d 397, 401 (11th Cir.1989); see also Payne, 654 F.2d at 1142 (“If
the defendant took an adverse employment action against the plaintiff
because of opposition conduct by the plaintiff that was outside the
protection of the statute, then the defendant may have had a legitimate,
nondiscriminatory reason to justify its actions.”); Hochstadt v. Worcester
Foundation for Experimental Biology, 545 F.2d 222, 229 (1st Cir.1976)
(“Certain conduct for example, illegal acts of opposition or unreasonably
hostile or aggressive conduct may provide a legitimate, independent, and
nondiscriminatory basis for an employee's discharge.”).207
Applying this balancing test, “in determining whether an employee's conduct went ‘too
far’” courts must apply a rule of reason, taking into consideration both the purpose of the
Act to protect persons reasonably engaging in opposition activity and the employer's
interests and ‘management prerogatives.’”208 Relying on the Fifth Circuit’s decision in
Payne, the Burns court found that the plaintiff offered no evidence to demonstrate that
“his activities were reasonable under the circumstances and were warranted by the
employer's conduct.”209

Citing Hochstadt, the court noted that the plaintiff is only

protected “from discharge for filing complaints in good faith before appropriate federal
and state agencies and ‘for registering grievances through channels appropriate in the
particular employment setting.’”210
Viewing the current record in the light most favorable to Plaintiff, and balancing the
relevant factors set forth above, the Court concludes that Plaintiff’s comments directed at
Brown during the final warning meeting are not protected opposition activity based on the
manner of Plaintiff’s complaint and in light of the context of the professional setting and

207

Id. at 433-434 (emphasis added).
Id. at 434 (quoting Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 232 (1st
Cir.1976)).
209
Id. at 435 (citing Payne, 654 F.2d at 1145).
210
Id. at 436 (quoting Hochstadt, 545 F.2d at 230–31)(emphasis in Burns).
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208

purpose of the meeting. Plaintiff does not even attempt to argue that such statements
made in the context of this meeting complied with the discrimination reporting policy
provided for in the Clerk’s Employee Handbook, or were otherwise made “through
channels appropriate in the particular employment setting.”211 Plaintiff fails to provide the
Court with any jurisprudential authority that would support the reasonableness of claiming
these comments constituted protected activity. Accordingly, the Court concludes that the
only protected opposition activity in this matter occurred in 2013, when Plaintiff
complained to Burgess about Brown’s alleged harassing behavior.
3. Adverse Employment Action/Retaliatory Harassment
Plaintiff must next demonstrate that an adverse employment action occurred.
There is conflicting record evidence regarding whether Plaintiff stated her intent to resign
during the final warning meeting; however, it is undisputed that Plaintiff was suspended
in 2018, and the Court will assume for purposes of this motion that Plaintiff was terminated
by Defendant thereafter. However, Plaintiff contends the continuing violations doctrine
applies to her so-called claim of retaliatory harassment. Under this theory, Plaintiff
maintains that every act of discipline and her transfer - which Defendant contends are
time-barred, discrete acts - also constitute an ostensible pattern of retaliation. The Court
rejects this argument.
Very recently, in Santos v. Baton Rouge Water Works Company, another section
of this Court succinctly explained that “[t]he Fifth Circuit has held that the continuing
violations doctrine does not apply to claims of retaliation because ‘retaliation is, by

211

Id.

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32

definition, a discrete act, not a pattern of behavior.’”212 In Montgomery-Smith v. George,
the Fifth Circuit noted that: “In Morgan, the Supreme Court drew a distinction between
allegation of discrete acts, such as retaliation, and allegations of racial discrimination.
Actions taken over a long period of time may ultimately, in the aggregate, constitute racial
discrimination. That is not the case with a discrete act of retaliation. [The plaintiff] cannot
use a statement made in 2007 to create a fact question as to whether a failure to promote
her years later was retaliatory.”213 Moreover, Title VII does not cover “every decision
made by employers that arguably might have some tangential effect upon those ultimate
decisions.”214 Allegations of unpleasant work meetings and verbal reprimands do not
constitute actionable adverse employment actions.215 Thus, the only adverse
employment actions properly before the Court are Plaintiff’s 2018 suspension and
ostensible termination.
4. Causal Connection
If the protected activity and the adverse employment action are “very close” in time,
that alone may establish a prima facie causal link.216 However, “even at the prima facie
stage, temporal proximity can only establish a causal link when it is connected to the

212

2021 WL 1227878 at *14 (M.D. La. Mar. 31, 2021)(quoting Hamic v. Harris Cnty., W.C. & I.D. No. 36,
184 F. App'x 442, 447 (5th Cir. 2006); Heath v. Bd. of Sup'rs for S. Univ. & Agric. & Mech. Coll., 850 F.3d
731, 741 (5th Cir. 2017), as revised (Mar. 13, 2017)).
213
810 Fed. Appx. 252, 261 (5th Cir. 2020)(citing National Railroad Passenger Corporation v. Morgan, 536
U.S. 101 (2002)).
214
Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003).
215
King v. Louisiana, 294 Fed.Appx. 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 (S.D. Miss. 2011)
(disciplinary slip placed in personnel file 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).
216
See Thompson v. Somervell Cty., 431 F. App'x 338, 342 (5th Cir. 2011) (citing Clark Cty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)) (per curiam).
33
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decision maker's knowledge of the protected activity.”217 Plaintiff fails to demonstrate
close temporal proximity as the record demonstrates that her alleged protected activity
occurred years before she ever received any form of discipline or corrective action.
Nevertheless, “an absence of tight temporal proximity does not doom a retaliation
claim where there is other evidence of a causal link.”218 Even so, Plaintiff is unable to
demonstrate a causal connection between her protected activity in 2013 and her 2018
suspension/termination. There is no summary judgment evidence that, “but for” Plaintiff’s
report of sexual harassment to Burgess back in 2013, she would not have been
suspended and/or terminated in 2018.

Plaintiff has offered no summary judgment

evidence – only her own speculation and conjecture – to support a causal link between
Defendant’s knowledge of her protected activity and her 2018 suspension and
termination. Accordingly, Plaintiff has failed to present a prima facie case of retaliation,
and Defendant is entitled to summary judgment.
5. Pretext
Even if Plaintiff could present a prima facie case of retaliation, Plaintiff fails to
demonstrate a genuinely disputed material fact issue as to whether the Defendant’s
legitimate, non-discriminatory reasons for her termination are a pretext for retaliation. A
plaintiff must “produce substantial evidence indicating that the proffered legitimate
nondiscriminatory reason is a pretext for discrimination.”219 “A plaintiff may show pretext
217

Id. (citing Breeden, 532 U.S. at 273, 121 S.Ct. 1508; Cothran v. Potter, 398 F. App'x 71, 73–74 (5th Cir.
2010) (“The combination of temporal proximity and knowledge of a protected activity may be sufficient to
satisfy a plaintiff's prima facie burden for a retaliation claim[.]”); Ramirez v. Gonzales, 225 F. App'x 203,
210 (5th Cir. 2007) (“Fifth Circuit precedent requires evidence of knowledge of the protected activity on the
part of the decision maker and temporal proximity between the protected activity and the adverse
employment action.”)).
218
Saketkoo v. Tulane University School of Medicine, --- F. Supp.3d ---, 2020 WL 7861308, at *16 (E.D.
La. 2020).
219
Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015).
34
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either through evidence of disparate treatment or by showing that the employer's
proffered explanation is false or unworthy of credence.”220 “An explanation is false or
unworthy of credence if it is not the real reason for the adverse employment action.”221
Critically, “[w]hen conducting a pretext analysis, the court is not to engage in secondguessing an employer's business decisions.222 Anti-discrimination laws do not require an
employer to make proper decisions, only [non-discriminatory] ones.”223
Defendant has easily met his burden of demonstrating a legitimate, nondiscriminatory reason for Plaintiff’s suspension and termination. The record is replete
with uncontroverted evidence that several of Plaintiff’s co-workers and supervisors found
Plaintiff’s tone and attitude in her office interactions unprofessional. Such conduct has
been repeatedly held to constitute a legitimate, non-discriminatory reason for an adverse
employment action.224
Plaintiff also challenges the veracity of Defendant’s legitimate, non-discriminatory
reasons for her 2018 suspension and termination, referring to these reasons repeatedly
220

Jackson v. Cal–W. Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010).
Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017).
222
Culbert v. Cleco Corp., 926 F.Supp.2d 886, 894 (citing LeMaire v. La. Dept. Of Transp. & Dev., 480 F.3d
383, 391 (5th Cir.2007)).
223
Id. (citing LeMaire, 480 F.3d at 391 (citing Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir.1991))).
224
Farmer v. Turn Key Installation, L.L.C., 812 Fed. Appx. 200, 203 (5th Cir. 2020) (dismissing retaliation
claim due to plaintiff’s bad attitude, telling, aggressiveness toward coworkers, and insubordination); Burrell
v. Dr. Pepper/ Seven Up Bottling Group, 482 F.3d 408, 416 (5th Cir. 2007)(dismissing retaliation claim
finding plaintiff made clear his lack of respect for his supervisor’s authority, asserted no responsibility for
their bad relationship, and made no provisions for future changes); Smith v. Baton Rouge Radiology Group,
No. 12-400-SDD-RLB, 2013 WL 4782142, at * 4 (M.D. La. Sept. 5, 2013) (dismissing retaliation claim
finding plaintiff’s disciplinary record showed a history of violations and during the final counseling sessions,
plaintiff was rude, confrontational and insubordinate); Raby v. Westside Transit, 2006 WL 1877000, at * 5
(E.D. La. June 16, 2006) (dismissing retaliation claim as employer had a legitimate reason to discharge
plaintiff who had a “bossy attitude” and was “unpleasant to work around”); Carballo v. Log Cabin
Smokehouse, 399 F.Supp.2d 715, 724 (M.D. La. 2005) (finding that an employee’s history of emotional
outbursts and a poor attitude were legitimate, non-retaliatory reasons for her firing); Montgomery v. CocaCola Enterprises, Inc., No. 3:00-CV-2278, 2003 WL 138087, at *8 (N.D. Tex. Jan. 14, 2003) (“To the extent
Defendant based its decision . . . on Plaintiff’s inability to conduct herself in a professional manner with
respect to co-workers, it is clear that such a rationale constitutes a legitimate, non-discriminatory reason for
terminating her employment.”).
35
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221

as “false,” and “fraudulent.” Plaintiff has offered no summary judgment evidence beyond
mere speculation and unsupported accusations of falsity. Jagneaux, Hickerson, Abadie,
Plunkett, and Cupit all testified or attested that Plaintiff had a history of exhibiting an
unprofessional work attitude. There is no evidence before the Court challenging that each
of these supervisors believed that Plaintiff had violated office policy, and she was
disciplined or issued corrective actions by each of their own accord. Plaintiff’s
disagreement with these opinions does not controvert the fact that multiple co-workers
and supervisors, indeed, held such opinions.
Plaintiff relies heavily on her performance evaluations wherein she received good
reviews for the quality of her work. Plaintiff repeatedly points to the generally good
performance evaluations written by her supervisors and argues that these evaluations
undermine the credence of the testimony that she was a problem employee. However,
as explained by several of her supervisors in sworn testimony, Plaintiff did perform the
functions of her job well; her attitude and tone were the problematic issues. These are
not mutually exclusive facts, and Plaintiff’s attitude problem was, in fact, documented on
one of these performance evaluations.225
Plaintiff claims that Hickerson disregarded Arceneaux’s statement and opinion that
Plaintiff was not at fault in one of the disputes with Lands and disciplined Plaintiff anyway.
However, Hickerson explained that he took Arceneaux’s statement into account but
determined Plaintiff’s fault based on all of the statements given. Importantly, the Fifth
Circuit has stated that “[t]he existence of competing evidence about the objective
correctness of a fact underlying a defendant's proffered explanation does not in itself

225

Rec. Doc. No. 27-33.

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36

make reasonable an inference that the defendant was not truly motivated by its proffered
justification.”226 Similarly, “[m]anagement does not have to make proper decisions, only
non-discriminatory ones.”227
Thus, Plaintiff's general denials that she was ever rude or unprofessional or at fault
in any workplace interaction are insufficient to demonstrate pretext. Plaintiff’s subjective
belief, no matter how sincere, simply cannot support a finding that her protected activity
from 2013 was the but-for cause of her suspension and termination in 2018.228 Plaintiff
has failed to present evidence that Defendant’s reasons for her suspension and
termination were false; after reviewing the record in this case, the Court concludes that
no rational factfinder could concluded that Plaintiff was suspended and terminated
because she reported alleged sexual harassment by Brown.
Finally, Plaintiff makes a fleeting disparate treatment argument, claiming that
Plunkett received lesser discipline for engaging in unprofessional office conduct.
However, as Plaintiff’s supervisor, Plunkett is not Plaintiff’s comparator. To show that a
similarly situated employee was treated differently and that the difference in treatment is
a pretext for discrimination, the conduct at issue must be “nearly identical.”229 Courts
within the Fifth Circuit define “similarly situated” narrowly.230 In evaluating whether an
alleged comparator is similarly situated,
“The employment actions being compared will be deemed to have been
taken under nearly identical circumstances when the employees being
226

Little v. Republic Refining Co., Ltd., 924 F.3d 93, 97 (5th Cir. 1991).
Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005).
228
Smith v. Board of Supervisors of Southern University, 656 Fed. Appx. 30, 34 (5th Cir. 2016)(citing
Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153 (5th Cir. 1995) and Waggoner v. City of Garland,
987 F.2d 1160, 1164 (5th Cir. 1993)).
229
Moore v. Angus Chemical Co., 2008 WL 4491592 at *5 (W.D. La. Oct. 1, 2008)(citations omitted).
230
See Horton v. G4S Secure Solutions (USA), Inc., No. 16-544-SDD-EWD, 2018 WL 1997535 at *5 (M.D.
La Apr. 27, 2018)(citing Brown v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F.Supp.2d 581, 593 (S.D.
Tex. 2012); see also Lopez v. Kempthorne, 684 F. Supp. 2d 827, 856-57 (S.D. Tex. 2010)).
37
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227

compared held the same job or responsibilities, shared the same
supervisor [,] or had their employment status determined by the same
person[.]”231 “Employees with different supervisors, who work for different
divisions of a company ... generally will not be deemed similarly situated.”232
The Fifth Circuit has further explained, that “employees who have different
work responsibilities ... are not similarly situated.”233
Plaintiff has failed to identify a proper comparator to support a disparate treatment
argument.
Defendant is entitled to summary judgment in this case.
III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment234 is

GRANTED. Judgment shall be entered accordingly.
The Final Pre-Trial Conference, set for July 20, 2021, and the Jury Trial, set to
begin August 2, 2021, are hereby cancelled. All pending motions in this matter are
DENIED as MOOT and shall be terminated by the Clerk of Court’s Office.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 14th day of July, 2021.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

231

Horton, 2018 WL 1997535 at *5 (quoting Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 893 (5th Cir.
2012)(quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009))).
232
Id. (quoting Lee, 574 F.3d at 259 (citing Wyvill v. United Cos. Life Ins., 212 F.3d 296, 302 (5th Cir.
2000))(emphasis added).
233
Id. (quoting Lee, 574 F.3d at 259-260 (citing Smith v. Walmart Stores, 891 F.2d 1177, 1180 (5th Cir.
1990)).
234
Rec. Doc. No. 27.
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