Goree v. City of Verona et al

Filing 159

ORDER AND MEMORANDUM OPINION granting in part and denying in part 113 Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 9/28/2021. (sko)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
STEPHANIE GOREE

PLAINTIFF

v.

CIVIL ACTION NO. 1:17-CV-93-SA-DAS

CITY OF VERONA, et al.

DEFENDANTS

ORDER AND MEMORANDUM OPINION
Stephanie Goree initiated this action on June 23, 2017 by filing her Complaint [1] against
the City of Verona and J.B. Long, in his individual capacity.1 Goree alleges that she was subjected
to sexual harassment and gender discrimination over a period of several years while she was
employed with the City of Verona Police Department. The Defendants filed a Joint Motion for
Summary Judgment [113], which has now been fully briefed. Having reviewed the filings and
relevant authorities, the Court is prepared to rule.
Factual and Procedural Background
Goree was initially hired by the Verona Police Department as a part-time patrol officer in
2008. J.B. Long was the Interim Chief of Police at the time of Goree’s hire, and Goree contends
that Long began sexually harassing her shortly after her employment commenced. She avers that
Long made numerous unwelcomed sexual remarks and touched her inappropriately on multiple
occasions. As to the nature of the physical touching, Goree testified that Long touched her buttocks
with his hand and his midsection but then apologized and acted as though it was inadvertent.
According to Goree, she quit her job in 2008 due to Long’s conduct, and she filed a Charge of
Discrimination with the EEOC based upon the purported harassment. Goree testified that, before
she quit, Long inappropriately touched her “maybe 11, 12” times. [113], Ex. A at p. 47.
1

On November 22, 2019, the Court entered an Order [56] dismissing the case without prejudice by reason
of settlement. However, the case was later reopened after the settlement was not completed.

While the Charge was pending with the EEOC, Leo Mask was hired as the new Police
Chief. Shortly after Mask was hired, Goree reached an agreement with him to withdraw her Charge
of Discrimination and return to work with the Verona Police Department. Mask served as Chief
from approximately 2009 through January 2011, and Goree admits that she was not subjected to
any harassment or discrimination during Mask’s tenure as Chief. Mask left the Verona Police
Department in 2011, and Anthony Anderson then assumed the role of Chief of Police.2
Goree contends that, although she helped Anderson get hired by the Police Department,
after being named Chief, Anderson began making sexual remarks towards her, touched her on
numerous occasions, and propositioned her for sex multiple times. Goree contends that this
harassment occurred after Anderson’s appointment to the role of Chief in January 2011. But she
also admits that Anderson did not harass her after June or July of 2011, specifically testifying as
follows:
Q.

So after, let’s say, June or July of 2011, you didn’t
experience any other sexual harassment from Anthony
Anderson, correct?

A.

No, sir, I did not.

[113], Ex. A at p. 70.
Thus, the harassment to which she was allegedly subjected by Anderson occurred during
the time period of January 2011 through June or July 2011. Likewise, when questioned about
whether Long’s conduct during this period of time, Goree testified as follows:
Q.

Okay. Before we talk about Chief Johnson’s short tenure as
Chief, I just would also want to confirm with you that during
Anderson’s employment as Chief of Police, J.B. Long didn’t
do anything to you during that period of time that you
considered to be sexually harassing, discrimination, or
retaliation, correct?

2

Although Long was removed as Interim Chief when Mask was hired, Long remained employed by Verona
Police Department during Mask’s tenure and at all times relevant to this action.

2

A.

Again, he did not.

Q.

And nobody else, other than Anderson, sexually harassed
you during his tenure as Chief, correct?

A.

Right. Correct.

[113], Ex. A. at p. 71.3
Anderson resigned sometime around November 2014, at which time Bill Johnson was
named Chief of Police. Regarding Johnson’s tenure as Chief, Goree asserts that “Chief Johnson
ran the police department professionally and did not tolerate gender discrimination. During Chief
Johnson’s tenure the Defendant Long did not engage in sexual harassment towards [Goree], largely
due to Long working the day shift and [Goree] working the night shift.” [128] at p. 4. However,
Johnson resigned after only about three months.
After Johnson’s resignation, Long re-assumed the role of Interim Chief and later became
Chief in July 2015. Goree asserts that a few months after being named Chief, Long resumed
harassing and discriminating against her. As to Long’s appointment to Chief of Police, Goree
asserts that the “City of Verona appointed the Defendant Long as Chief of Police despite
complaints of sexual harassment and gender discrimination by [Goree].” [1] at p. 4. When
questioned about the harassment to which she was subjected after Long was named Chief in July
2015, Goree stated:
Q.

So just for the record, when he became Chief of Police in
July of 2015, after that point, he never physically touched
you in a sexual way again, correct?

A.

No, sir, he did not.

3

Goree also testified in her deposition that Anderson sent an inappropriate photo and text message to
another employee, Sabrina Cox. However, she did not state when that conduct occurred. And despite a
reference to it in the facts section of her Response Memorandum [128], she does not appear to pursue it as
part of her hostile work environment claim, making no reference to it in the argument section of her
Memorandum [128].

3

Q.

Okay. But you said he did make a number of sexual remarks
to you?

A.

He did.

Q.

Okay. And you told me about the comment that he made.
Tell me – just let – let’s just break them down in order.
What was the first sexual remark that you recall him
making to you after he became Chief in July of 2015?

A.

Again, he told me that, you think that pussy still good since
I lost weight.

Q.

And how many times did he tell you that?

A.

Just that one time.

Q.

Okay. And would that have been shortly after he became
Chief?

A.

Yes, sir, because we was getting along – you know, trying to
get along.

Q.

What was the next sexual remark he made to you?

A.

He told me he could have had that pussy a long time ago.
And I told him, no, he couldn’t.

Q.

And, again, was that in or around July of 2015?

A.

It was, maybe, a couple of months later when we were
getting along trying to make the department work.

Q.

And what – what was the next sexual remark?

A.

Just those two.

Q.

Just those two, okay. So other than those two comments,
Chief – J.B. Long didn’t sexually harass you in any other
way from July of 2015 through the present date, correct?

A.

No, sir, he did not.

[113], Ex. A at p. 98-100.

4

On January 28, 2016, Goree submitted to the City of Verona’s Board of Aldermen a written
grievance against Long, and Long thereafter submitted to the Board a written response. During a
meeting on March 10, 2016, the Board of Aldermen went into executive session to address the
grievance. Despite being given an opportunity to present witnesses or other evidence, Goree, who
was represented by counsel at the meeting, did not do so. Long presented witnesses to testify in
his favor. According to the minutes from the meeting, Goree’s allegations were dismissed “due to
lack of evidence.” [113], Ex. 2.
Goree contends that “[a]fter making her last complaint of sexual harassment and gender
discrimination,” Long cut her hours, refused to allow her to work extra shifts and overtime,
subjected her to a non probable cause and non random retaliatory drug screen, and forced her to
drive and patrol in an unsafe patrol car. [1] at p. 5-6. She also contends that during this time period
Long made discriminatory comments to her regarding her gender, specifically stating that women
should not hold the position that she held within the Department. She does not specify how many
times Long made comments of this nature but testified that he did so “several times.” [113], Ex. A
at p. 116.
Goree thereafter filed a Charge of Discrimination with the EEOC on September 27, 2016.
In the Charge, she sets forth her allegations as to the sexual harassment to which she had been
subjected dating back to 2008. She then filed her Complaint [1] against the City of Verona and
J.B. Long (in his individual capacity) on June 23, 2017. In her Complaint [1], Goree asserts the
following claims: (1) Title VII gender discrimination against the City of Verona;4 (2) Title VII
retaliation against the City of Verona; (3) denial of her Fourteenth Amendment right to Equal
Protection against Long; and (4) retaliation in violation of her First and Fourteenth Amendment
4

This claim includes two different theories: (1) discrimination based on specific, discrete actions; and (2)
hostile work environment.

5

rights against Long. In their Joint Motion for Summary Judgment [113], the Defendants assert that
each of Goree’s claims should be dismissed.5
Summary Judgment Standard
Summary judgment is warranted when the evidence reveals no genuine dispute regarding
any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV.
P. 56(a). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Nabors v. Malone, 2019 WL 2617240, at *1 (N.D. Miss. June 26, 2019) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
“The moving party ‘bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the record which it believes demonstrate the
absence of a genuine issue of material fact.’” Id. (quoting Celotex, 477 U.S. at 323). “The
nonmoving party must then ‘go beyond the pleadings’ and ‘designate specific facts showing that
there is a genuine issue for trial.’” Id. (quoting Celotex, 477 U.S. at 324). Importantly, “the
inferences to be drawn from the underlying facts contained in the affidavits, depositions, and
exhibits of record must be viewed in the light most favorable to the party opposing the motion.”
Waste Management of La., LLC v. River Birch, Inc., 920 F.3d 958, 964 (5th Cir. 2019) (quoting
Reingold v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir. 1997)). However, “[c]onclusory
allegations, speculation, unsubstantiated assertions, and legalist arguments are not an adequate
substitute for specific facts showing a genuine issue for trial.” Nabors, 2019 WL 2617240 at *1

5

Although Goree was still employed with the Verona Police Department at the time she filed her EEOC
Charge, she took workers compensation leave beginning on or about February 28, 2017 following an
unrelated work-related incident.

6

(citing TIG Ins. Co. v. Sedgewick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)) (additional
citations omitted).
Analysis and Discussion
As noted above, the Defendants contend that each of Goree’s claims should be dismissed.
Additionally, Long asserts that he is entitled to qualified immunity on the individual capacity
claims. The Court will address the Defendants’ arguments as to each of Goree’s claims in turn.
I.

Title VII Gender Discrimination6

As a general matter, Title VII “makes it unlawful for employers to require ‘people to work
in a discriminatorily hostile or abusive environment.’” West v. City of Houston, Tex., 960 F.3d
736, 741 (5th Cir. 2020) (quoting Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 325 (5th
Cir. 2019)); see also EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007). “When the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment, Title VII is violated.” WC&M Enters., 496 F.3d at 399 (quoting Harris v.
Forklift Sys., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)) (additional citation
omitted).
The Court notes that Goree has asserted two different theories of liability on this claim.
First, she asserts liability based upon specific, discrete acts of sexual harassment. Second, she
contends that she was subjected to different terms and conditions of employment which created an
objectively hostile work environment. See [1] at p. 6 (“The Defendant City of Verona

6

For the sake of clarity, the Court notes that Goree’s Complaint [1] only alleges liability pursuant to Title
VII against the City of Verona—not Long. Goree’s decision to do so is in accordance with applicable law,
as “[i]ndividuals are not liable under Title VII in either their individual or official capacities.” Ackel v. Nat’l
Comms., Inc., 339 F.3d 376, 381 (5th Cir. 2003) (citing Smith v. Amedisys. Inc., 298 F.3d 434, 448-49 (5th
Cir. 2002)). The Court will therefore only analyze potential liability under Title VII as to the City of Verona.

7

discriminated against Ms. Goree on the basis of her gender by subjecting her to sexual harassment,
and different terms and conditions of employment which created an objectively hostile work
environment.”). The City of Verona asserts that Goree’s Title VII claim should be dismissed for
two different reasons: (1) because she failed to timely exhaust administrative remedies; and (2)
because the claims fail on the merits.
At the outset of its analysis, the Court finds it necessary to clarify the specific purported
conduct it will consider. Goree contends that the discrimination to which she was subjected dates
all the way back to 2008, while the City takes the position that much, if not all, of the alleged
conduct is time-barred. In order to clarify the parameters of the alleged conduct it will consider,
the Court will address those arguments first.
“Ordinarily, an employee may not base a Title VII claim on an action that was not
previously asserted in a formal charge of discrimination to the EEOC, or that could not ‘reasonably
be expected to grow out of the charge of discrimination.’” Filer v. Donley, 690 F.3d 643, 647 (5th
Cir. 2012) (quoting Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006)). “The purpose of this
exhaustion doctrine is to facilitate the administrative agency’s investigation and conciliatory
functions and to recognize its role as primary enforcer of anti-discrimination laws.” Id.
Additionally, “[t]he Fifth Circuit has observed that ‘one of the central purposes of the employment
discrimination charge is to put employers on notice of the existence and nature of the charges
against them.’” Clark v. Auger Servs., Inc., 443 F. Supp. 3d 685, 701 (M.D. La. 2020) (quoting
Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 878 (5th Cir. 2003)) (additional citations
omitted).
Moreover, and particularly important for purposes of the City of Verona’s argument in this
case, “Title VII’s enforcement provisions require that an EEOC charge must be filed within 180

8

days after the alleged unlawful employment practice has occurred.” Clark, 443 F. Supp. 3d at 701
(citing 42 U.S.C. § 2000e-5(e)(1)); see also Clark v. Chickasaw Cnty., Miss., 2010 WL 3724301,
*6 (N.D. Miss. Sept. 16, 2010) (“Any claims based on acts occurring more than 180 days prior to
the date of the EEOC charge of discrimination are statutorily barred.”); Ernst v. Methodist Hosp.
Sys., 1 F.4th 333, 337 (5th Cir. 2021) (“Before suing, a plaintiff must exhaust administrative
remedies by filing a charge with the EEOC within 180 days of the discriminatory action.”)
(citations omitted).
One important caveat to the general 180-day deadline is the continuing violation doctrine.
That doctrine “provides that when a plaintiff alleges a hostile work environment claim, as long as
an employee files her complaint while at least one act which comprises the hostile work
environment claim is still timely, the entire time period of the hostile work environment may be
considered by a court for the purpose of determining liability.” Heath v. Bd. of Supervisors for
Southern Univ. and Agric. and Mech. Coll., 850 F.3d 731, 736 (5th Cir. 2017) (quoting Hartz v.
Adm’rs of Tulane Educ. Fund, 275 F. App’x 281, 289 (5th Cir. 2008); National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 117, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002)) (internal quotation
marks omitted). Thus, a plaintiff pursuing a hostile work environment claim need only file the
EEOC Charge within 180 days of a single act which makes up part of the claim. See Gregg v. City
of Houston, Tex., 2021 WL 413541, at *7 (S.D. Tex. Feb 5, 2021). “The end goal of the continuing
violation theory is to ‘accommodate plaintiffs who can show that there has been a pattern or policy
of discrimination continuing from outside the limitations period into the statutory limitations
period, so that all of the discriminated acts committed as part of this pattern or policy can be
considered timely.” Williams v. E.I. du Pont de Nemours and Co., 154 F. Supp. 3d 407, 422 (M.D.

9

La. Dec. 30, 2015) (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004))
(additional citations omitted).
Goree contends that the Court should utilize the continuing violation doctrine and consider
conduct dating back to 2008 when she was first allegedly subjected to harassment and
discrimination. Although the continuing violation doctrine undoubtedly enables plaintiffs to
pursue claims that occurred more than 180 days prior to the filing of an EEOC Charge, there are
three important limitations to the doctrine. See, e.g., Heath, 850 F.3d at 738. The Fifth Circuit has
explained those limitations as follows:
First, the plaintiff must demonstrate that the “separate acts” are
related, or else there is no single violation that encompasses the
earlier acts. Second, the violation must be continuing; intervening
action by the employer, among other things, will sever the acts that
preceded it from those subsequent to it, precluding liability for
preceding acts outside the filing window. Third, the continuing
violation doctrine is tempered by the court’s equitable powers,
which must be exercised to honor Title VII’s remedial purposes
without negating the particular purpose of the filing requirement.
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009) (citing Morgan, 536 U.S. at
110; Zipes v. Trans Word Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234)) (internal
citations and quotation marks omitted).
In light of these limitations, the Court reiterates the timeline of relevant events in this case.
Goree contends that Long made inappropriate comments toward her and inappropriately touched
her more than ten times in 2008. After she quit her job and filed an EEOC Charge, Leo Mask
assumed the role of Chief. Upon discussing the situation with Mask, Goree agreed to withdraw her
EEOC Charge and return to work with the Department. She admits that she was not subjected to
discrimination or harassment during Mask’s tenure which spanned from 2009 until approximately
January 2011. She contends that, after becoming Chief, Anthony Anderson made inappropriate

10

comments to her and propositioned her for sex beginning in January 2011, but she also admits that
this conduct ceased in June or July of 2011. During the remainder of Anderson’s tenure, which
lasted until November 2014, she does not contend that she was subjected to any harassment or
discrimination.7
Goree contends that she was next subjected to sexual harassment after Long became Chief
of Police, which occurred in July 2015. However, she also admits that she did not begin
experiencing issues with Long immediately after he became Chief but, instead, that the improper
conduct occurred after “give or take, four or five months.” [113], Ex. A at p. 44. In fact, she
specifically stated that she began having issues with Long in November or December of 2015,
which is ultimately what led to her lodging the grievance with the Board. As noted above, Goree
also admitted that during Long’s tenure as Chief, he did not inappropriately touch her but did make
7

At this time, the Court feels compelled to note the difficulty it faces in resolving this issue and other
issues in this case, particularly due to the inconsistencies in Goree’s contentions. For example, as noted
above, in her deposition, Goree testified that Anderson did not harass her after June or July 2011, as well
as testifying that Long did not engage in any harassment, discrimination, or retaliation during Anderson’s
tenure (which spanned from January 2011 through November 2014). See [113], Ex. A at p. 70-71. However,
in her Response Memorandum [128], she makes the conclusory allegation that “Chief Anderson and
Defendant Long engaged in sexual harassment and gender discrimination towards Ms. Goree until Chief
Anderson resigned as Chief of Police in approximately November 2014.” [128] at p. 3. In making this
assertion, she cites to page 70 of her deposition, which is the same page cited above where she specifically
admitted that she did not experience any harassment from Anderson after June or July of 2011. At this stage
in the proceedings, the Court must view the evidence in the light most favorable to Goree, but “it is well
established that arguments of counsel and unsworn allegations in the pleadings fail to preclude summary
judgment.” Gerald v. Univ. of S. Miss., 2014 WL 172113, at *24 (N.D. Miss. Jan. 15, 2014) (citations
omitted). Furthermore, “[a] plaintiff cannot create a genuine issue of material fact sufficient to survive
summary judgment simply by contradicting his or her own previous sworn statement . . . without explaining
the contradiction or attempting to resolve the disparity.” Herrera v. CTS Corp., 183 F. Supp. 2d 921, 926
(S.D. Tex. Jan. 15, 2002) (quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 798, 119 S. Ct.
1597, 143 L. Ed. 2d 966 (1999)). Thus, the Court has looked to the evidence in the record—particularly
Goree’s admissions and her other testimony—in reaching its conclusion. In doing so, the Court remains
mindful that, once the moving party comes forward with a properly supported motion for summary
judgment, “[t]he nonmoving party must then ‘go beyond the pleadings’ and ‘designate specific facts
showing that there is a genuine issue for trial.’” Nabors, 2019 WL 2617240 at *1 (quoting Celotex, 477
U.S. at 324). The Court also notes that it “has no duty to survey the entire record in search of evidence to
support a non-movant’s position.” Head v. Smith, 2021 WL 4168390, at *2 (E.D. La. Sept. 2021) (citing
Jones v. Sheehan, Young, & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)) (additional citations omitted).
The Court has attempted to comply with each of these principles in reaching its conclusions.

11

comments toward her which she considered to be harassing and discriminatory. Specifically, she
asserts that Long made two sexually harassing comments to her, in addition to making other
general comments about how women should not be in her position. She also contends that Long
cut her hours, refused to allow her to work overtime, and took other actions that were
discriminatory.
Recognizing that the continuing violation doctrine may under certain circumstances
warrant consideration of actions that occurred more than 180 days prior to the filing of an EEOC
Charge, the Court, when considering the facts of this case, finds that conduct which occurred prior
to Long becoming Chief of Police in July 2015 should not be considered. In making this
distinction, the Court has considered the above-referenced limitations to the continuing violation
doctrine—particularly the significant lapse in time between the alleged conduct and the
intervening action of hiring new Chiefs. Specifically, the Court notes that Goree alleges that Long
inappropriately touched her and made inappropriate comments toward her in 2008. Thereafter, a
new Chief was named, and matters improved for several years. Then, when Anthony Anderson
was named Chief, he allegedly propositioned her for sex and made inappropriate comments toward
her between January 2011 and June or July 2011, but she admits that she was not subjected to any
further harassment by Anderson after that time period. Anderson remained Chief of Police for
more than three years after that time—leaving that position in November 2014. In other words, it
was a period of several years before Goree was allegedly subjected to further harassment and
discrimination. This Court finds the significant lapse in time important. In fact, as previously noted
by the District Court for the Middle District of Louisiana, “[t]he Fifth Circuit has held ‘that a
“three-year break” will defeat any attempt to establish a continuing violation.’” Adams v. United
Ass’n of Journeymen and Apprentices of Plumbing and Pipefitting Indus. of the United States and

12

Canada, 2019 WL 3240028, at *10 (M.D. La. July 18, 2019) (quoting Butler v. MBNA Tech., Inc.,
111 F. App’x 230, 234 (5th Cir. 2004)) (additional citation omitted).
Additionally, the Court notes that there were multiple intervening personnel changes
during those time periods, including various changes in the role of Chief. See Stewart, 586 F.3d at
328 (noting that intervening actions by the employer is a consideration in the application of the
continuing violation doctrine). In fact, throughout the approximate eight-year time period between
the first alleged conduct (2008) and the filing of her Charge (September 2016), the Chief of Police
changed numerous times. Specifically, Long was Interim Chief at the time Goree was hired in
2008. Mask then served as Chief for multiple years. Anderson then served as Chief from January
2011 through November 2014. Johnson then assumed the role but left after only approximately
three months. Long then re-assumed the role of Interim Chief and was later named Chief in July
2015.
The Court therefore, recognizing the extensive periods of time between the alleged conduct
against Goree, as well as the multiple intervening personnel changes, finds that the conduct which
occurred prior to Long resuming the role of Chief in July 2015 should not be considered.8 In other
words, the Court finds that the continuing violation doctrine should not be utilized to capture this
conduct. Stated simply, the lapses in time and numerous changes in personnel are such that it
cannot be stated that the hostile work environment was continuing dating all the way back to 2008.
The Court believes that this conclusion is in accordance with its duty to honor Title VII’s remedial
purpose without negating the purpose of the exhaustion requirement. See Stewart, 586 F.3d at 328.

8

The Court notes that although Goree has made references to the continuing violation doctrine, she has
made only conclusory allegations that the Court should consider conduct dating back to 2008 and has not
cited any case law wherein any court has applied to continuing violation doctrine in circumstances similar
to the case at bar.

13

Having found that the continuing violation doctrine cannot reach conduct that occurred
prior to Long becoming Chief in July 2015, the Court turns to the conduct that occurred after that
time. As noted above, Goree admits that Long did not physically touch her in any way after that
time. Rather, her allegations after that point consist of comments that Long made, as well as other
conduct which she contends created a hostile work environment.
Because Goree admits that no discrete acts of physical sexual harassment occurred after
July 2015 (in fact, much earlier but certainly not after July 2015) and she did not file her EEOC
Charge until September 27, 2016, her Title VII claim, to the extent that it is based upon discrete
acts of physical sexual harassment, can easily be dismissed as untimely. See, e.g., Ernst, 1 F.4th at
337. Summary judgment is therefore granted on that theory of liability on her Title VII claim.
That leaves the Court with her hostile work environment claim. “A hostile work
environment claim is composed of a series of separate acts that collectively constitute one
‘unlawful employment practice.’” West, 960 F.3d at 741 (citations omitted). The City of Verona
argues that this claim fails for two reasons. First, the City avers that, like the claim based upon
discrete actions, Goree failed to timely exhaust administrative remedies as to the hostile work
environment claim. Second, the City argues that the claim fails on the merits.
A.

Timeliness of Hostile Work Environment Claim

Turning first to the timeliness issue, as noted above, a plaintiff pursuing a hostile work
environment claim need only file the EEOC Charge within 180 days of a single act which makes
up part of the claim. See Gregg, 2021 WL 413541 at *7 (emphasis added). The City contends that
Goree did not file her EEOC Charge within 180 days of the last act making up her hostile work
environment claim, specifically citing her deposition testimony wherein she testified as follows:

14

Q.

So then to get back to my question, you are not claiming that
anybody from the City of Verona sexually harassed you
after January of 2016, correct?

A.

Yes, sir.

[113], Ex. A at p. 120.
Thus, the City contends that, because Goree admitted in her deposition that the last act of
sexual harassment occurred no later than January 2016 and she did not file her EEOC Charge until
September 27, 2016—more than 180 days later—the claim is time-barred. See [113], Ex. C.
Goree attached to her Response [127] a post-deposition affidavit, wherein she makes
further statements regarding the timing of Long’s purported conduct. See [127], Ex. E. In pertinent
part, she testifies as follows:
2.

In my deposition taken on September 25, 2019, I was asked
if Chief J.B. Long had made any sexual remarks or sexually
harassed me after January of 2016. I answered that he did
not. However, I want to make clear that I did not intend to
convey that the sexually hostile work environment to
which I was subjected ceased to exist.

3.

After January 2016, as I explained in my deposition, I was
subjected to inappropriate comments based upon my sex,
having my hours cut, refusing to allow me to work extra
shifts and overtime, subjecting me to a non-probable cause
and non-random retaliatory drug screen, forcing me to drive
and patrol in an unsafe and unroadworthy patrol car, and
otherwise subjecting me to discriminatory terms and
conditions of employment on the basis of my gender which
created an extremely hostile work environment.

Id. at p. 1-2.
“The sham affidavit doctrine prevents a party who has been deposed from introducing an
affidavit that contradicts that person’s deposition testimony without explanation because ‘a
nonmoving party may not manufacture a dispute of fact merely to defeat a motion for summary
judgment.’” Free v. Wal-Mart La., LLC, 815 F. App’x 765, 766 (5th Cir. 2020) (quoting Doe ex
15

rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000)). “A court may . . . strike
an affidavit that, without explanation, conflicts with prior deposition testimony.” Id. However, the
Fifth Circuit has also “noted that not ‘every discrepancy’ between a deposition and affidavit should
result in exclusion of the affidavit and that slightly inconsistent affidavits may ‘explain certain
aspects of a party’s deposition testimony.’” Id. (quoting Kennett-Murray Corp. v. Bone, 622 F.2d
887, 894 (5th Cir. 1980)). Instead, the Fifth Circuit instructed that courts should look to whether
the affidavit supplements, as opposed to contradicts, the prior testimony. Id. (citing Clark v.
Resistoflex Co., A Div. of Unidynamics Corp., 854 F.2d 762, 766 (5th Cir. 1988)).
In considering whether the sham affidavit doctrine is applicable, the Court has reviewed
Goree’s deposition transcript beyond the portion emphasized by the City. The Court finds
particularly pertinent Goree’s testimony when questioned about any other conduct that occurred
after January 2016:
Q.

Okay. But you’re not claiming that your personal
disagreements at that point in time rose to a level of sexual
harassment or discrimination or retaliation, are you?

A.

It was not sexual harassment. Again, it was discrimination.
He told me that a man – you know, “A lady shouldn’t be
over a man.” He told me, uh, that several times that he would
like to have a man as his Assistant Chief instead of a female.

Q.

Okay. Let’s talk about – all right. Before we get into those
remarks, did – did – are you claiming J.B. Long took any
other retaliatory actions against you after January 28th,
2016?

A.

Just my hours and his words.

[113], Ex. A at p. 116.
Although recognizing the City’s emphasis on the deposition excerpt wherein Goree
admitted that no sexual harassment occurred after January 28, 2016, the Court finds that the

16

additional context and explanation given in her deposition makes clear that she does not contend
that the hostile work environment ceased to exist at that point. For example, she claims that Long
made additional comments after that time and that he took other actions, such as cutting her hours,
after January 28, 2016. Thus, while Goree’s post-deposition affidavit does, to some extent,
contradict the specific language of the particular section of her deposition that the City emphasized,
when considering the entire context, including other portions of her deposition testimony, the
Court finds that the post-deposition affidavit should not be excluded under the sham affidavit
doctrine. Goree has alleged, in her deposition as well as in her post-deposition affidavit, that she
was subjected to inappropriate actions which were part of the hostile work environment after
January 28, 2016.
As noted above, the continuing violation doctrine permits a plaintiff to include in a hostile
work environment claim actions that occurred more than 180 days prior to the filing of the EEOC
Charge, so long as at least one action contributing to the hostile work environment claim occurred
within that time period. See, e.g., Hartz, 275 F. App’x at 289 (“Therefore, as long as an employee
files her complaint while at least one act which comprises the hostile work environment claim is
timely, the entire time period of the hostile environment may be considered by a court for the
purpose of determining liability.”) (internal quotation marks omitted). Because at least one act
contributing to Goree’s hostile work environment claim occurred less than 180 days prior to Goree
filing her EEOC Charge, the claim is not time-barred and the Court will consider all conduct that
occurred subsequent to Long becoming Chief in 2015.9

9

The Court again notes that “[t]he end goal of the continuing violation theory is to accommodate plaintiffs
who can show that there has been a pattern or policy of discrimination continuing from outside the
limitations period into the statutory limitations period, so that all of the discriminated acts committed as
part of this pattern or policy can be considered timely.” Williams, 154 F. Supp. 3d at 422 (internal quotations
marks and citations omitted). The Court finds that this conclusion is in accordance with that end goal.

17

B.

Merits of Hostile Work Environment Claim

The Court will therefore turn to the merits of Goree’s hostile work environment claim. A
plaintiff seeking to impose liability on a hostile work environment claim must show that:
(1) she belongs to a protected class; (2) was subject to unwelcome
sexual harassment; (3) the harassment was based on her sex; (4) the
harassment affected a term, condition, or privilege of her
employment; and (5) [the defendant] knew or should have known of
the harassment and failed to take remedial action.
Tucker v. United Parcel Serv. Inc., 734 F. App’x 937, 941 (5th Cir. 2018) (quoting Cain v.
Blackwell, 246 F.3d 758, 760 (5th Cir. 2001)).
The City particularly attacks the fourth element—that the harassment affected a term,
condition, or privilege of Goree’s employment.10 “To affect a term, condition, or privilege of
employment, the harassment must be sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” West, 960 F.3d at 741-42
(quoting Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 479 (5th Cir. 2008)). “The alleged
conduct must be objectively and subjectively hostile or abusive.” Id. (citing Harris, 510 U.S. at
21). “The totality of the employment circumstances determines whether an environment is
objectively hostile.” Id. (citing Harris, 510 U.S. at 21-22). Although no one single factor is
outcome-determinative, the pertinent considerations in this inquiry include: “(1) the frequency of
the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating,

10

The City also makes the contention that the alleged conduct was not based on her gender. To satisfy this
element, the plaintiff “must show a nexus between the alleged conduct and her race or gender.” Shobney v.
Sessions, 2018 WL 1915490, at *5 (W.D. Tex. Apr. 23, 2018) (quoting Gibson v. Verizon Servs. Org., Inc.,
498 F. App’x 391, 394 (5th Cir. 2012)) (internal citations omitted). Here, although some of the other
conduct such as the cutting of hours and refusal to grant overtime requests may not, when considered in
isolation, seem to be gender based, the specific alleged comments were sexually harassing and related to
Goree’s gender, some of them even specifically referencing her gender. The Court therefore rejects the
City’s argument on this point for summary judgment purposes. At a minimum, a question of fact exists on
that issue.

18

or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work
performance.” Id. (quoting Harris, 510 U.S. at 21-22) (internal quotation marks omitted).
At this point, the Court again notes the specific alleged conduct that is relevant—only that
conduct which occurred after Long became Chief in July 2015. The relevant allegations include
two sexually harassing comments that Long made toward her, several other comments Long made
that women should not be in Goree’s position, and Long cutting her hours on two occasions. She
has also alleged that she was subjected to a drug screen that was not based on probable cause and
that she was not permitted to work overtime. The City takes the position that, even taking these
allegations as true, they do not rise to the level necessary to preclude summary judgment.
Turning first to the frequency of the conduct, the Court notes that Long allegedly made two
sexually harassing comments toward Goree in or around November 2015. He then made several
other comments about her gender—specifically that the position which she held should not be
occupied by a female. The other alleged conduct, such as cutting her hours, refusing to allow her
to work overtime, and subjecting her to a drug screen, occurred in the summer of 2016. Notably,
the pertinent conduct did not commence until approximately November or December 2015 and
lasted through the summer of 2016. Thus, the pertinent time period is less than one year. Although
Goree has not provided specific dates for when the subject conduct occurred, she has alleged that
all this conduct occurred during that relatively narrow time period. Considering that multiple
events occurred during this narrow window of time, the Court finds that this factor weighs in
Goree’s favor.
As to the severity of the conduct, the City cites the Fifth Circuit’s relatively recent decision
in West. In West, the Fifth Circuit held that “West seeks to impose Title VII liability on her
employer because her coworkers passed gas at the dinner table; infrequently slept in their

19

underwear at the station; made the occasional racially insensitive joke; and brought adult
magazines to the station. That is not severe or humiliating under the governing standards.” West,
960 F.3d at 742. In reaching that decision, the Fifth Circuit noted the Supreme Court’s decision in
Faragher, wherein the Supreme Court held that “[p]roperly applied, the standards for judging
hostility will filter out complaints attacking the ordinary tribulations of the workplace, such as the
sporadic use of abusive language, gender-related jokes, and occasional teasing.” Id. (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)).
Stated differently, “[t]he law separates significant from trivial harms. . .” Molina v. McHugh, 2013
WL 4012631, at *3 (S.D. Tex. Aug. 5, 2013) (citing Stewart, 586 F.3d at 331).
Recognizing this high standard, the Court notes that the two sexual comments directed
toward Goree were severe. As noted above, the first alleged comment was a sexual comment
related to her loss of weight. In the second alleged comment, Long stated that he could have had
sex with Goree if he wanted to. These comments included extremely graphic language related to
Goree’s anatomy. Although the other comments regarding her gender generally are not as severe,
the Court finds the nature of these two particular comments to be severe. Furthermore, the other
conduct, such as cutting her hours, refusing to allow her to work overtime, and subjecting her to a
drug screen, also are not as severe as the initial comments. Reverting back to the first two
comments, however, the Court notes that these comments, particularly Long’s comment that he
could have had sex with her if he wanted to, exceed the ranks of a typical off-hand insensitive joke.
In other words, the Court finds that these comments constitute more than the ordinary tribulations
of the workplace. See, e.g., West, 960 F.3d at 742 (citations omitted). Furthermore, taking into
account all of the alleged conduct, the Court finds that the subject environment was more severe
than the environment address by the Fifth Circuit in West. Specifically, the Court notes that the

20

alleged conduct was directly targeted at Goree, as opposed to West where much of the conduct was
not specifically aimed at the plaintiff.11 The Court finds that the subject conduct is more significant,
as opposed to trivial. See Molina, 2013 WL 4012631 at *3 (citation omitted).12
As to the third factor, the Court first considers whether there was any physical threat to
Goree. Although she makes a general assertion that she was forced to patrol in an unsafe patrol car
which, in theory, could constitute a physical threat, she has not provided any details regarding that
allegation, instead having made only a conclusory contention on that point. The Court therefore
finds that allegation insufficient for summary judgment purposes. Concerning whether the conduct
was humiliating, the Court finds that the two sexual comments weigh the most in Goree’s favor
on this point. The Court finds, however, that the other comments and actions, in isolation, are much
less humiliating.
Regarding the fourth factor—whether the conduct unreasonably interferes with the
employee’s work performance—in addition to the comments, Goree testified as to the difficulties
she faced during this time period, such as her hours being cut and overtime requests being denied
and instead being given to other personnel. However, the Court also notes that Goree was not

11

The Fifth Circuit has previously taken into account whether the conduct was specifically directed at the
plaintiff in determining whether a cognizable hostile work environment claim exists. See, e.g., Collier v.
Dallas Cnty. Hosp. Dist., 827 F. App’x 373, 378 (5th Cir. 2020).
12
Although not a Fifth Circuit decision, the Court also notes a case from the District Court for the Southern
District of Texas. Matthews v. High Island Indep. Sch. Dist., 991 F. Supp. 840, 844 (S.D. Tex. Jan. 22,
1998). There, the Plaintiffs alleged that a supervisor “made statements to others such as ‘I’m going to hire
more men, and tie those elementary teachers’ pussies in a knot,’ referred to his ‘big Italian hairy ass,’ and
told someone ‘Don’t mess with [female plaintiff], she is [male employee’s] pussy.’” Id. Although at the
motion to dismiss stage, the District Court noted, “[i]f such allegations are true, the Court is dumbfounded
as to how Defendants could possibly suggest that [the plaintiffs] were not subjected to a hostile work
environment.” Id. This Court recognizes that there have been numerous hostile work environment cases
decided since Matthews; however, the Court notes it as the substance of the alleged comments there are
similar to the first two comments at issue in the case sub judice.

21

terminated nor did she voluntarily leave her employment with the City.13 The Court therefore finds
that, while Goree did face some difficulties, this factor weighs slightly in the City’s favor.
The Court is aware that “not all harassment, including simple teasing, offhand comments,
and isolated incidents (unless extremely serious), will affect a term, condition, or privilege of
employment.” Alaniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009). However,
considering all the evidence before it and its role at this stage of the proceedings, the Court finds
that Goree has come forward with sufficient evidence to survive summary judgment on her hostile
work environment claim. Stated differently, the Court finds that Goree has come forward with
sufficient evidence to create a genuine issue of material fact as to whether “the challenged conduct
. . . create[d] an environment that a reasonable person would find hostile or abusive.” FarpellaCrosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (citing Weller v. Citation Oil &
Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)); see also Johnson v. PRIDE Indus., Inc., 7 F.4th 392,
400 (5th Cir. 2021).14 The City’s request for summary judgment on the Title VII hostile work
environment claim is therefore denied, and Goree will be permitted to proceed to trial on that
claim.
II.

Title VII Retaliation

Goree also asserts a claim for Title VII retaliation. Goree’s Complaint [1] specifically avers
that the Defendants cut her hours, refused to allow her to work extra shifts and overtime, subjected

13

Goree does allege that Long attempted to have her terminated in the summer of 2016, but she did not
elaborate on that point in her Response Memorandum [128]. And it is undisputed that she was not
terminated at that time.
14
The Court recognizes that Long denies having made any sexually harassing or discriminatory comments
toward Goree. However, at this stage in the proceedings, the Court’s role is not to make credibility
determinations. In fact, the Court is prohibited from doing so. See, e.g., EMJ Corp. v. Hudson Specialty Ins.
Co., 2014 WL 4244007, at *3 (N.D. Miss. Aug. 26, 2014) (citing Comeaux v. Sutton, 496 F. App’x 368,
369 (5th Cir. 2012) (per curiam)) (additional citation omitted) (“The Fifth Circuit has stated repeatedly:
‘The trial court may not weigh evidence or make credibility determinations when considering a motion for
summary judgment.’”).

22

her to a retaliatory drug screen, and “otherwise subject[ed] her to discriminatory terms and
conditions of employment[.]” [1] at p. 5-6.
Pursuant to Title VII’s antiretaliation provision, protected activity may involve either: “(1)
‘opposing any practice made an unlawful employment practice by this subchapter’ or (2) ‘making
a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or
hearing under this subchapter.’” EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016)
(quoting 42 U.S.C. § 2000e-3(a)) (internal punctuation omitted). “Retaliation claims under Title
VII are governed by the familiar three-step McDonnell Douglas test.” LeMaire v. La. Dep’t of
Transp. And Dev., 480 F.3d 383, 388 (5th Cir. 2007 (citing Septimus v. Univ. of Houston, 399 F.3d
601, 608 (5th Cir. 2005); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973)).
To establish a prima face case of retaliation, a plaintiff must establish that “(1) she
participated in an activity protected under the statute; (2) her employer took an adverse
employment action against her; and (3) a causal connection exists between the protected activity
and the adverse action.” Feist v. La., Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454
(5th Cir. 2013) (citing McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007)). 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.”
LeMaire, 480 F.3d at 388-89 (citing Baker v. Am. Airlines, Inc., 430 F.3d 750, 754-55 (5th Cir.
2005)).
The City argues that summary judgment is appropriate as to this claim on the basis that
Goree “has no evidence that any of these alleged retaliatory acts (which are denied) were caused

23

by her prior complaint against Long. In other words, she has no evidence that any activity protected
by Title VII was ‘the but-for cause of [any] adverse employment action.’ Hockman v. Westward
Commc’ns, LLC, 407 F.3d 317, 330 (5th Cir. 2004).” [114] at p. 13. Goree did not address the
retaliation claim in her Response Memorandum [128]. Therefore, in its Reply [134], Verona takes
the position that Goree has abandoned her retaliation claim.
This Court has recognized that the failure to make arguments or offer proof in opposition
to a properly supported motion for summary judgment on any claim constitutes an abandonment
of that claim. See Tubwell v. Specialized Loan Serv., LLC, 2019 WL 1446362, at *3 (N.D. Miss.
Mar. 29, 2012) (noting that the non-movant’s failure to respond to the moving party’s motion for
summary judgment on certain claims “amounts to an abandonment of [those] claims”); see also
Scott v. Spencer Gifts, LLC, 2015 WL 4205242, at *1 (N.D. Miss. July 10, 2015) (“In their
response, Plaintiffs have made no argument and offered no proof in support of their claims of
intentional infliction of emotional distress and failure to train or supervise, and thus the Court finds
these theories to be abandoned.”); Sanders v. Sailormen, Inc., 2012 WL 663021, at *3 (N.D. Miss.
Feb. 28, 2012) (collecting cases) (“Failure to address a claim results in the abandonment thereof.”).
Recognizing these authorities, the Court agrees that Goree has abandoned this claim.
However, the Court will nevertheless, out of an abundance of caution, consider the merits
of the claim based on the evidence and arguments before it. As to the first element of the prima
facie case, “an employee has engaged in activity protected by Title VII if she has either (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.” Snyder v. L-3 Commc’ns Vertex Aerospace, LLC, 2020 WL 869977, at *9 (N.D. Miss. Feb.
21, 2020) (quoting Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (citing 42 U.S.C. §

24

2000e-3(a)) (internal quotation marks omitted). It is undisputed that Goree lodged a grievance
against Long in January 2016, wherein she alleged that she was subjected to a hostile work
environment. The Court thus finds that the first element is satisfied.
As to the second element—that the employer took adverse action against her, “[t]he
Supreme Court [has] held that ‘a plaintiff must show that a reasonable employee would have found
the challenged action materially adverse, which in this context means it well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.’” Id. (quoting
Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed.
2d 345 (2006)) (additional citation and internal quotation marks omitted). Goree has alleged that
her hours were cut, she was subjected to drug screens which were non-random and not supported
by probable cause, she was forced to drive an unsafe patrol vehicle, and she was not allowed to
work overtime. The Court finds these allegations sufficient to carry Goree’s burden at this stage
in the proceedings.
Although not making any significant arguments as to the first two prima facie elements,
the City takes the position that Goree cannot satisfy the third element—the causal connection
requirement. Specifically, the City contends that Goree “has no evidence that any of these alleged
retaliatory acts (which are denied) were caused by her prior complaint against Long. In other
words, she has no evidence that any activity protected by Title VII was ‘the but-for cause of [any]
adverse employment action.’ Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 330 (5th Cir.
2004).” [114] at p. 13.
The Fifth Circuit has recently explained that “Title VII retaliation claims must be proved
according to traditional principles of but-for causation.” Brown v. Wal-Mart Stores East, L.P., 969
F.3d 571, 577 (5th Cir. 2020) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360,

25

133 S. Ct. 2517, 186 L. Ed. 2d 503 (2013)). “However, the but-for standard does not apply at the
prima facie case stage. Instead, ‘at the prima facie case [stage], a plaintiff can meet his burden of
causation simply by showing close enough timing between his protected activity and his adverse
employment action.’” Id. (quoting Garcia v. Prof’l Contract Servs., Inc., 938 F.3d 236, 242-43
(5th Cir. 2019)) (internal citation omitted).
Although Goree has not come forward with such a temporal proximity argument, even if
she had done so, she still must establish but-for causation to prevail. See id. Her failure to respond
to the City of Verona’s arguments becomes fatal at this point. As noted above, Goree has not come
forward with specific evidence or arguments in support of this temporal proximity theory. See
Brown, 969 F.3d at 577.15 And “[u]ltimately, in order to survive a motion for summary judgment,
a plaintiff must show a conflict in substantial evidence on the question of whether the employer
would not have taken the adverse employment action but for the protected activity.” Id. (quoting
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)) (internal quotation marks omitted). Goree simply
has not done so.
The Court also notes that this is the same conduct which she contends was part of her
hostile work environment claim. In her argument related to that claim, she takes the position above
that this conduct was part of a hostile work environment. It is unclear if she contends that the
conduct was retaliatory and/or whether she has any evidence to support that contention. Again,
this is where her failure to respond to the City’s request for summary judgment on the retaliation
claim becomes fatal. There is not substantial evidence before the Court on the question of whether

Even if Goree had made arguments and provided proof in support of the temporal proximity theory, the
Fifth Circuit has made clear that “temporal proximity . . . is relevant to, but not alone sufficient to
demonstrate, pretext.” Brown, 969 F.3d at 579 (citing Strong v. Univ. Healthcare Sys., LLC, 482 F.3d
802, 808 (5th Cir. 2007)).
15

26

the City would have taken the employment actions at issue if she had not lodged her complaint
regarding Long’s conduct.
Summary judgment is therefore granted on Goree’s Title VII retaliation claim. That claim
is dismissed.
III.

Section 1983 Claims

The Court next turns to Goree’s Section 1983 claims. Specifically, she alleges that her
Fourteenth Amendment Equal Protection rights were violated because she was “intentionally
subject[ed] . . . to sexual harassment, and different terms and conditions of employment on account
of her gender.” [1] at p. 7. She also asserts a First Amendment claim, alleging that she was
retaliated against because she spoke on a matter of public concern.
Before addressing the merits of those claims, the Court first feels compelled to address
against whom Goree asserts the claims. The Court will set forth below the full allegations as to
each of these claims, as alleged in Goree’s Complaint [1]:
Claim 3 Fourteenth Amendment Denial of Equal Protection
36. The Defendant Long violated Ms. Goree’s Fourteenth
Amendment right to equal protection by intentionally subjecting
Ms. Goree to sexual harassment, and different terms and conditions
of employment on account of her gender.
37. The Defendant Long is liable to Ms. Goree for violating her
equal protection right to be free from intentional discrimination
motivated by her gender in public employment.
Claim 4 First & Fourteenth Amendment Retaliation
38. The Defendant Long violated Ms. Goree’s First Amendment
and Fourteenth Amendment rights to freedom of speech and equal
protection by intentionally subjecting Ms. Goree to [retaliation] for
speaking on a matter of public concern.

27

39. The Defendant Long is liable to Ms. Goree for violating her
First and Fourteenth Amendment rights to be free from intentional
retaliation for speaking on a matter of public concern.
[1] at p. 7-8 (emphasis added).
Although Goree, in her Response Memorandum [128], makes general references to liability
against the City under Section 1983, she never alleges claims to that effect in her Complaint [1].
For example, she never references Monell liability or any other theory of municipal liability. In
fact, as emphasized above, the language of her Complaint [1] simply states that Long is liable for
violating her constitutional rights.
The Court notes that Goree had different counsel when her Complaint [1] was initially
filed. Perhaps her failure to include claims against the City was a strategic decision made at that
time. Although the reason for doing so is unclear, the Court finds that the language of the
Complaint [1] clearly does not assert a claim against the City under Section 1983; therefore, the
Court sees no need to address whether the City would be liable under Section 1983.16 Instead, the
Court will turn to Goree’s allegations related to Section 1983 individual liability against Long. In
response to Goree’s constitutional claims, Long has raised the defense of qualified immunity.
“The doctrine of qualified immunity protects governmental officials from civil damages
liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson,
659 F.3d 359, 370 (5th Cir. 2011). “Qualified immunity balances two important interests—the
need to hold public officials accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when they perform their duties

16

The Court is cognizant of the Supreme Court’s instruction that claims should not be dismissed because
of an “imperfect statement of the legal theory.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 11, 135 S.
Ct. 346, 190 L. Ed. 2d 309 (2014) (per curiam). However, this Court finds Goree’s complete failure to
assert a Section 1983 claim against the City to be distinguishable from an imperfect statement of a legal
theory. Consequently, the Court finds that Johnson does not warrant a different result under the particular
facts of this case.

28

reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565
(2009). An officer may successfully invoke the defense of qualified immunity “insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818‐19, 102 S. Ct. 2727, 73 L.
Ed. 2d 396 (1982); see also Cantu v. Rocha, 77 F.3d 795, 805‐06 (5th Cir. 1996).
“Courts generally carry out two steps when determining whether a defendant is protected
by qualified immunity. The court asks whether the official ‘violated a statutory or constitutional
right’ and whether ‘the right was “clearly established” at the time of the challenged conduct.’”
Caldwell v. Medina, 2020 WL 4043501, at *8 (W.D. Tex. July 17, 2020) (citing and quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011); Harlow, 457
U.S. at 818).
“For a right to be clearly established, ‘its contours must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’” Ratliff v. Aransas
Cnty., Tex., 948 F.3d 281, 287 (5th Cir. 2020) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.
Ct. 2508, 153 L. Ed. 2d 666 (2002)). This is an objective standard with the touchstone being
“whether a reasonable person would have believed that his conduct conformed to the constitutional
standard in light of the information available to him and the clearly established law.” Zadeh v.
Robinson, 928 F.3d 457, 468 (5th Cir. 2019) (quoting Goodson v. City of Corpus Christi, 202 F.3d
730, 736 (5th Cir. 2000)).
The Supreme Court has on multiple occasions cautioned that “clearly established law
should not be defined at a high level of generality.” White v. Pauly, --- U.S. ---, 137 S. Ct. 548,
196 L. Ed. 2d 463 (2017) (citing Ashcroft, 563 U.S. at 742); see also Bustillos v. El Paso Cnty.
Hosp. Dist., 891 F.3d 214, 222 (5th Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7, 12, 136 S.

29

Ct. 305, 193 L. Ed. 2d 255 (2015)) (noting that the inquiry “must be undertaken in light of the
specific context of the case, not a broad general proposition.”). “While there need not be a case
directly on point, the unlawfulness of the challenged conduct must be ‘beyond debate.’” Joseph
on behalf of Estate of Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020) (citing District of
Columbia v. Wesby, --- U.S. ---, 138 S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018)).
Cognizant of the qualified immunity standard, the Court will consider Goree’s Equal
Protection and First Amendment retaliation claims in turn.
A.

Fourteenth Amendment Equal Protection Claim

As noted above, Goree alleges that Long “violated [her] Fourteenth Amendment right to
equal protection by intentionally subjecting [her] to sexual harassment, and different terms and
conditions of employment on account of her gender. . . [Long] is liable to [Goree] for violating her
equal protection right to be free from intentional discrimination motivated by her gender in public
employment.” [1] at p. 7. The allegations of Goree’s Complaint [1], as well as the arguments raised
in her Response Memorandum [128], therefore directly implicate the intersection between Title
VII and Section 1983. Relatively recently, the District Court for the Western District of Texas,
analyzing Fifth Circuit case law, set forth an in-depth analysis of that intersection. Crain v. Judson
Indep. Sch. Dist., 2018 WL 1612857, at *4 (W.D. Tex. Apr. 3, 2018). Although it will not repeat
that analysis here, this Court notes that the District Court for the Western District of Texas
ultimately concluded as follows:
It appears settled that a public employee cannot sue his employer
under § 1983 for violating Title VII. And although there remains
some uncertainty, most cases hold that a public employee can bring
parallel causes of action against the government employer under
Title VII (for Title VII violations) and under § 1983 for separate
constitutional violations, even if both claims are premised on the
same facts and conduct, though these cases generally involve Title
VII claims against public employers and § 1983 claims against non30

employer individuals. Robertson v. Bd. of Sup’rs of La. State Univ.,
273 F.3d 1108 (5th Cir. 2011) (unpublished) (holding that Title VII
does not provide the exclusive remedy for race discrimination in
employment even when the § 1983 claims are based on the same
facts)[.]
Id. at *4 (additional citations omitted). Other district courts across the Fifth Circuit have reached
this same conclusion. See, e.g., Kabir v. Singing River Health Sys., 2019 WL 6702433, at *4 (S.D.
Miss. Dec. 9, 2019) (quoting Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 549 (5th Cir.
1997) (“Title VII is the exclusive remedy for a violation of its own terms, but when a public
employer’s conduct violates both Title VII and a separate constitutional or statutory right, the
injured employee may pursue a remedy under § 1983 as well as under Title VII.”); Bowie v. Hodge,
2020 WL 4747662, at *6 (E.D. La. Aug. 17, 2020) (citations omitted) (“A plaintiff may pursue
both section 1983 and Title VII claims when the employer’s conduct violates both Title VII and a
separate constitutional or statutory right. While it is accurate that Title VII provides the exclusive
remedy for a violation of its own terms, a § 1983 claim is still available when a public employer’s
conduct violates both Title VII and a separate constitutional or statutory right.”). Thus, relying on
these authorities, the Court finds that Goree may, pursuant to Section 1983, pursue her claims for
separate constitutional violations against Long.
Turning to the merits of her Fourteenth Amendment claim against Long, “Section 1983
and Title VII sexual-harassment claims are analyzed under the same standard, as the two are
‘parallel causes of action.’” Myles v. Mason, 2020 WL 7265379, at *3 (S.D. Miss. Dec. 10, 2020)
(quoting Laurderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 166 (5th Cir. 2007))
(additional citation omitted); see also Weikel v. Jackson Pub. Sch. Dist., 2020 WL 2027213, at *6
(S.D. Miss. Apr. 27, 2020) (“Indeed, section 1983 and title VII are parallel causes of action.”)
(citations and internal quotation marks omitted).

31

Again, Long has invoked qualified immunity as a defense to this claim, specifically arguing
that “Goree has no evidence to suggest Long committed any acts against her that were objectively
unreasonable under clearly established law.” [114] at p. 17.
Although not cited by either party, the Court finds instructive the Fifth Circuit’s decision
in Lauderdale, 512 F.3d 157. There, the Fifth Circuit analyzed qualified immunity in the context
of hostile work environment in public employment. Id. at 166. In pertinent part, the Fifth Circuit
held:
Answering the first question in the qualified immunity
analysis is easy in this case. The right to be free of sexual harassment
that creates a hostile work environment is clearly established and
has been since the Court decided Meritor in 1986. Answering the
second question in the qualified immunity analysis is only slightly
more complicated. Although no one thinks that sexual harassment is
objectively reasonable, the question is whether a reasonable person
would have thought Arthur’s specific acts constituted sexual
harassment; that brings us back to the original question whether his
behavior amounted to sexual harassment under title VII or § 1983.
Given that actionable sexual harassment under title VII must
be “objectively . . . offensive,” such behavior cannot be “objectively
reasonable” for purposes of the qualified immunity inquiry. Thus,
qualified immunity can never offer protection for sexual harassment
because, if it is actionable at all, the harassment is by definition
objectively offensive and unreasonable, and qualified immunity
protects only the “objectively reasonable[.]” Because we have
already determined that Arthur’s alleged behavior is actionable
under title VII and § 1983, we have necessarily determined that such
behavior was objectively offensive and, therefore, not objectively
reasonable. Thus, he is not entitled to qualified immunity.
Id. at 166-67 (internal citations omitted) (emphasis added).
The District Court for the Southern District of Mississippi has recently addressed qualified
immunity in the context of hostile work environment. See Myles, 2020 WL 7265379. Myles
involved a sexual harassment/hostile work environment claim asserted by a lieutenant of a sheriff’s
department against the sheriff, wherein the lieutenant alleged that her supervisor sent inappropriate
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text messages and propositioned her for sex multiple times on a frequent basis. Id. at *1. After
finding that the lieutenant had come forward with sufficient evidence to preclude summary
judgment on the hostile work environment claim, the district court turned to the sheriff’s request
for qualified immunity. Id. at *6. The district court specifically held:
As to Myles’s sexual-harassment claims against Mason in his
individual capacity, he is not entitled to qualified immunity. The
Fifth Circuit has held that “qualified immunity can never offer
protection for sexual harassment because, if it is actionable at all,
the harassment is by definition objectively offensive and
unreasonable, and qualified immunity protects only the ‘objectively
reasonable.’” Lauderdale, 512 F.3d at 166-67. Because Myles
presents a fact issue on her sexual-harassment claims, Mason is not
entitled to qualified immunity under Rule 56.
Id.
In referencing Myles, this Court is aware that it was decided in December 2020—well after
the conduct at issue in this case. This Court is also cognizant that, when analyzing qualified
immunity, it must “consider whether the defendant’s actions were objectively unreasonable in light
of clearly established law at the time of the conduct in question.” Freeman v. Gore, 483 F.3d 404,
411 (5th Cir. 2007) (emphasis added). In other words, “reasonableness is judged against the
backdrop of the law at the time of the conduct.” Tucker v. City of Shreveport, 998 F.3d 165, 173
(5th Cir. 2021) (emphasis added)
Although aware of this standard, the Court notes that the Fifth Circuit’s opinion in
Lauderdale, upon which the District Court for the Southern Mississippi relied, was issued in
2007—well prior to the subject conduct in this case. The Court simply notes this distinction to
make clear that it is not relying on Myles as the basis for determining whether the law was “clearly
established” but, rather, finds Myles to be an illustration of the appropriate manner to address
qualified immunity in the hostile work environment context, in light of the Fifth Circuit’s decision

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in Lauderdale. Other district court cases have also analyzed Lauderdale in this same manner. See,
e.g., Hale v. Tex. Dep’t of Criminal Justice, 2019 WL 7500593, at *15 (N.D. Tex. Dec. 3, 2019)
(noting—in report and recommendation which was ultimately adopted in full—that the Fifth
Circuit’s opinion in Lauderdale “removed any doubt” as to whether qualified immunity is
available “where a plaintiff has alleged actionable sexual harassment that created a hostile work
environment”); Taylor v. Miller, 2014 WL 2815701, at *3 (S.D. Miss. June 23, 2014) (denying
qualified immunity based on Lauderdale).
Therefore, relying on the above analysis that Goree has presented sufficient evidence to
preclude summary judgment on her hostile work environment claim, along with the Fifth Circuit’s
directive in Lauderdale, the Court finds that Long is not entitled to qualified immunity on the
Fourteenth Amendment Equal Protection claim. Summary judgment is denied as to that claim, and
Goree will be permitted to proceed to trial.
B.

First Amendment and Fourteenth Amendment Retaliation

Finally, Goree contends that “Long violated [her] First Amendment and Fourteenth
Amendment rights to freedom of speech and equal protection by intentionally subjecting [her] to
retaliation for speaking on a matter of public concern.” [1] at p. 7.17
Turning to the first prong of the qualified immunity analysis—whether Long violated a
federal constitutional right—the Court notes that, “[a]s a general matter the First Amendment
prohibits government official from subjecting an individual to retaliatory actions for engaging in
protected speech.” Batyukove v. Doege, 994 F.3d 717, 730-31 (5th Cir. 2021) (quoting Nieves v.

17

Although Goree styled this claim as a First and Fourteenth Amendment claim, First Amendment
retaliation standards are applicable. See, e.g., Montgomery v. Mississippi, 498 F. Supp. 2d 892 (S.D. Miss.
2007) (“While [the plaintiff’s] First Amendment claims are properly considered Fourteenth Amendment
due process claims, the Court shall analyze them separately as First Amendment claims due to the standards
unique to First Amendment retaliation claims.”). The Court will therefore analyze the claim under the First
Amendment only.

34

Bartlett, --- U.S. ---, 139 S. Ct. 1715, 204 L. Ed. 2d 1 (2019) (quoting Hartman v. Moore, 547 U.S.
250, 256, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006)). “To succeed in a First Amendment retaliation
claim under § 1983, a public employee must show: (1) [she] suffered an adverse employment
action; (2) [she] spoke as a citizen on a matter of public concern; (3) [her] interest in the speech
outweighs the government’s interest in the efficient provision of public services; and (4) the speech
precipitated the adverse employment action.” Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015)
(quoting Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007)).
Particularly concerning the second element, “[s]peech is not a matter of public concern if
it is made solely in ‘furtherance of a personal employer-employee dispute.’” Gibson v. Kilpatrick,
838 F.3d 476, 486-87 (5th Cir. 2016) (quoting Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 187
(5th Cir. 2005)). This principle has been reiterated by the Fifth Circuit various times. See, e.g.,
Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir. 1996) (quoting Page v. DaLaune, 837
F.2d 233, 237 (5th Cir. 1988)) (“The courts will not interfere with personnel decisions when a
public employees speaks not as a citizen upon matters of public concern, but instead as an
employee upon matters only of personal interest.”); Teague v. City of Flower Mound, Tex., 179
F.3d 377, 383 (5th Cir. 1999) (finding that speech made in furtherance an employer-employee
dispute was not speech on a matter of public concern). And “the Fifth Circuit has noted that speech
regarding ‘internal personnel disputes and working conditions’ will not ordinarily involve the
public concern.” Moreau v. St. Landry Parish Fire Dist. No. 3, 413 F. Supp. 3d 550, 561 (W.D.
La. Sept. 10, 2019) (quoting Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir. 2001)).
Despite Long’s assertion that Goree’s speech was not protected by the First Amendment
because it constituted an employer/employee dispute outside of the First Amendment’s scope,
Goree did not address that claim in her Response Memorandum [128]. As noted above, her failure

35

to respond is sufficient for this Court to find that she has abandoned that claim. See Tubwell, 2019
WL 1446362 at *3. In addition, the claim also fails on the merits, as there is no evidence before
the Court to create a genuine issue of material fact that Goree engaged in speech on a matter of
public concern.
Summary judgment is therefore granted on Goree’s First Amendment retaliation claim.
That claim is dismissed.
Conclusion
For the reasons set forth above, the Defendants’ Joint Motion for Summary Judgment [113]
is GRANTED IN PART and DENIED IN PART. Goree will be permitted to proceed to trial on
her Title VII hostile work environment claim against the City of Verona, subject to the limitations
outlined above. All other claims against the City of Verona are DISMISSED with prejudice. Goree
will also be permitted to proceed to trial on her Section 1983 Fourteenth Amendment hostile work
environment claim against J.B. Long in his individual capacity. Her Section 1983 First
Amendment retaliation claim against J.B. Long in his individual capacity is DISMISSED with
prejudice.
SO ORDERED, this the 28th day of September, 2021.

/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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