Houston v. Mississippi Department of Human Services
Filing
46
ORDER granting in part and denying in part 38 Motion for Summary Judgment for the reasons set out in the Order. The parties are instructed to contact the Courtroom Deputy to set the case for pretrial conference. Signed by District Judge Daniel P. Jordan III on September 18, 2015. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
NORA HOUSTON
PLAINTIFF
v.
CIVIL ACTION NO. 3:13cv773-DPJ-FKB
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES
DEFENDANT
ORDER
This employment-discrimination case is before the Court on Defendant Mississippi
Department of Human Services’s (“MDHS”) Motion for Summary Judgment [38]. For the
following reasons, MDHS’s motion is granted as to the state-law claims, Americans with
Disability Act claims, Family Medical Leave Act interference claim, and claims related to
alleged constructive discharge. The motion is otherwise denied.
I.
Facts and Procedural History
Plaintiff Nora Houston, a white female, began working as financial coordinator for
MDHS in January 2007. Houston Dep. [38-1] at 2. In 2012, Takesha Darby, an AfricanAmerican female, became Houston’s direct supervisor. Def.’s Resps. [43-6] at 1 2. The two
quickly developed issues, and on March 12, 2012, Darby gave Houston a verbal counseling
concerning various policy breaches at the workplace. Verbal Counseling [38-1] at 55.1
According to Houston, Darby attempted to place Houston on a Performance Improvement
Plan (“PIP”) in April 2012. Darby denies this occurred, Darby Dep. [43-4] at 50, but viewed in a
light most favorable to Houston’s testimony, Darby prepared the PIP but never completed the
1
Many of the relevant exhibits are attached as exhibits to Houston’s deposition and bear
multiple exhibit numbers. Accordingly, this Order provides the ECF page number and a brief
description of the document. Cites to Houston’s deposition testimony also utilize ECF page
numbers.
process, stating instead, “It’s over. Let’s start anew.” Id. Had she given Houston the PIP, it
would have violated MDHS policy because Houston had not yet completed a review period
under Darby’s supervision. Darby Dep. [43-4] at 42.
In August 2012, Houston filed an internal grievance after she lost the right to claim
compressed days that allowed her to spend time with her ailing mother. Jackson Dep. [43-1] at
133. This issue was resolved favorably for Houston, and she did not lose ability to take
compressed days. See Pl.’s Mem. [42] at 32.
On September 30, 2012, Houston filed a Charge of Discrimination with the EEOC, citing
the March 12, 2012 verbal-counseling session and the aborted 2012 PIP as instances of racial
discrimination. See EEOC Charge [38-1] at 60. Less than two weeks later, on October 11, 2012,
Houston took leave under the FMLA to care for her mother. Def.’s Resps. [43-6] at 3. During
this leave, Darby sent Houston an email instructing her not to contact coworkers seeking donated
FMLA leave because it violated agency policy. Email [38-1] at 77. Houston denies that she
solicited such donations though she may have mentioned it to at least one coworker. Houston
Dep. [38-1] at 47 48.
While Houston’s leave continued, her periodic Performance Appraisal Report (“PAR”)
for the April to October 2012 period became due. See PAR [38-1] at 57. Darby completed the
report November 5, and it was also approved by Mary Fuller, a white supervisor. In the PAR,
Darby gave Houston a 1.28 rating for various deficiencies in her job performance. PAR [38-1] at
57. Any score below a two (2) requires a PIP. Darby Dep. [43-4] at 2.
The PAR and PIP were shared with Houston shortly after her return to work. See PAR
[38-1] at 57, 61 62. As a result, Houston filed an internal grievance with MDHS, complaining
2
that she received the PAR and PIP just days after experiencing the anguish of losing her mother
and returning to work. Grievance [38-1] at 65. Houston further claimed that Darby’s
“harassment” and “bullying” caused her to fear for her job. Id. at 63 68.
In the last months of her employment, Darby made Houston attend weekly meetings with
her and provide memoranda reviewing the topics discussed at the meeting. Darby Dep. [43-4] at
49. Houston also alleges that she was the only employee required to sign in and out. Pl.’s Mem.
[42] at 32; see also EEOC Charge [38-1] at 73. It is not clear from the record whether these
measures were part of the PIP, but they do not appear to be directly referenced in it. See PIP [381] at 61 62. Finally, Houston claims verbal abuse and bullying, which can be generally
described as comments questioning her emotional stability, competence, and intelligence
(including calling her “stupid”). See generally Houston Dep. [38-1] at 39. Houston ultimately
filed a Notice of Voluntary Separation on June 28, 2013, and subsequently filed a Second Charge
with the EEOC on July 26, 2013. Id. at 69 75. The EEOC issued Houston a right to sue on
September 16, 2013. Id. at 76.
On December 10, 2013, Houston filed her Complaint [1] in this Court, alleging that
MDHS violated her rights under Title VII of the Civil Rights Act of 1964; Title I of the
Americans with Disabilities Act of 1990 (“ADA”); and the Family and Medical Leave Act of
1993 (“FMLA”). She also asserted a due-process claim and state-law claims for intentional
infliction of emotional distress and violation of provisions governing state service of employees.
MDHS has now filed the instant Motion for Summary Judgment [38], and the briefing is
concluded. The Court has personal and subject-matter jurisdiction and is prepared to rule.
3
II.
Standard of Review
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when evidence reveals no genuine dispute regarding any material fact and that the
moving party is entitled to judgment as a matter of law. The rule “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.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
The party moving for summary judgment “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. 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. at 324. In reviewing the evidence, factual controversies
are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted
evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc) (per curiam). When such contradictory facts exist, the court may “not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic
arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG
Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at 1075;
SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993) (per curiam).
4
Finally, the Court feels compelled to observe that Plaintiff has failed to fully comply with
Rule 56(c)(1), which states that “[a] party asserting that a fact cannot be or is genuinely disputed
must support the assertion by (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
. . . , admissions, interrogatory answers, or other materials.” (emphasis added). Rule 56(c)(3)
adds that “[t]he court need consider only the cited materials, but it may consider other materials
in the record.” And under Rule 56(e), “[i]f a party fails to properly support an assertion of fact . .
. , the court may: . . . (2) consider the fact undisputed for purposes of the motion.”
Here, Plaintiff at times fails to provide any record citation. And when she does offer
cites, she sometimes refers to her complaint rather than the record. As for her record cites,
Houston often directs the Court to the wrong exhibit or page number. Other times, she
generically cites excessive page ranges from the depositions without identifying the particular
parts that support her statements (one cite, for example, references a nearly 100-page range).
Finally, many of the cites reference documents or testimony that are not in the record at all.
The Court understands the pressures attorneys face, and it generally tries to avoid ad
hominem comments. That said, considerable time has been spent trying to sort through all of this
in order to consider the record as a whole. As often stated, there is no “duty to sift through the
record in search of evidence to support a party’s opposition to summary judgment.” Jackson v.
Cal W. Packaging Corp., 602 F.3d 374, 379 80 (5th Cir. 2010) (citation and quotation marks
omitted). So to the extent something has been missed, the fault rests with the Plaintiff.
5
III.
Analysis
Houston’s more specific claims seek relief for: (1) hostile work environment in violation
of Title VII; (2) constructive discharge in violation of Title VII; (3) retaliation in violation of
Title VII; (4) violation of the ADA; (5) retaliation under the FMLA; (6) interference under the
FMLA; (7) intentional infliction of emotional distress; (8) violation of provisions governing state
service of employees; and (9) failure to provide due process as to Houston’s grievances. The
Court will address each.
A.
Eleventh Amendment Immunity as to ADA, Due-Process, and State-Law Claims
MDHS asserts that it is entitled to immunity under the Eleventh Amendment as to
Houston’s ADA, due-process, and state-law claims. “The Eleventh Amendment bars citizens of
a state from suing their own state or another state in federal court, unless the state has waived its
sovereign immunity or Congress has expressly abrogated it.” Raj v. La. State Univ., 714 F.3d
322, 328 (5th Cir. 2013) (citation omitted). “[A] state’s Eleventh Amendment immunity extends
to any state agency or entity deemed an ‘alter ego’ or ‘arm’ of the state.” Perez v. Region 20
Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002). MDHS is an arm of the state of Mississippi,
and MDHS therefore has Eleventh Amendment immunity absent waiver or abrogation. Pollard
v. Hinds Cnty. Dep’t of Human Servs., No. 3:13cv324-DPJ-FKB, 2014 WL 5324384, at *2 (S.D.
Miss. Oct. 17, 2014) (citation omitted).
Houston has not argued waiver or abrogation
nor could she
so these claims are subject
to Eleventh Amendment immunity. See Perez, 307 F.3d at 326 (affirming dismissal of ADA
claim); Lewis v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011)
6
(same as to due-process claim); Hays Cnty. Guardian v. Supple, 969 F.2d 111, 125 (5th Cir.
1992) (same as to pendent state-law claims).
Houston does, however, attempt to invoke Ex Parte Young with respect to her claim for
injunctive relief under Title I of the ADA. 209 U.S. 123 (1908). The argument fails because Ex
Parte Young “created an exception to Eleventh Amendment immunity for claims for prospective
relief against state officials who have been sued in their official capacities.” Nelson v. Univ. of
Tex. at Dallas, 535 F.3d 318, 320 (5th Cir. 2008). Houston brings no such claims and instead
sued an arm of the state. “When a state agency is the named defendant, the Eleventh
Amendment bars suits for both money damages and injunctive relief unless the state has waived
its immunity.” Cozzo v. Tangipahoa Parish Council-President Gov’t, 279 F.3d 273, 280 81 (5th
Cir. 2002) (emphasis added). Accordingly, Houston’s ADA, due-process, and state-law claims
against MDHS are barred, and MDHS’s motion on these claims is granted. The claims are
dismissed without prejudice.
B.
Title VII Hostile-Work-Environment Claim
MDHS next argues that Houston has failed to establish a prima facie case for relief as to
her Title VII hostile-work-environment claim. “To prevail on a hostile work environment claim,
[Houston] must prove that: 1) [she] belong[s] to a protected group; 2) [she was] subjected to
unwelcome harassment; 3) the harassment complained of was based on race; and 4) the
harassment affected a term, condition, or privilege of employment.” Frank v. Xerox Corp., 347
F.3d 130, 138 (5th Cir. 2003).
Harassment affects a term, condition, or privilege of employment if it is
sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment. . . . In order to deem a work
7
environment sufficiently hostile, all of the circumstances must be taken into
consideration[,] . . . includ[ing] the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (citations and internal
quotation marks omitted). “For harassment to be sufficiently severe or pervasive to alter the
conditions of the victim’s employment, the conduct complained of must be both objectively and
subjectively offensive.” EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007).
Significantly, Title VII is not intended to create a “general civility code.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Thus it does not cover the “ordinary tribulations of
the workplace . . . .” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
MDHS’s memorandum faithfully recounts the law, but its substantive argument is limited
to the following:
Houston does not offer proof of conduct that can be characterized as “extreme.”
For example, on June 28, the day of her resignation, Houston had a meeting with
Darby and she was critical of Houston’s progress. Houston deposition, pp. 161163. Houston’s subjective fear of reprimand rather than “extreme” conduct
appears to be the cause of her resignation.
Def.’s Mem. [39] at 7.2
MDHS focuses entirely on the severity of the conduct, and the Court agrees that none of
the alleged acts
standing alone
were sufficiently severe. But that does not end the inquiry.
2
There are several potential problems with Houston’s race-based harassment claim that
were not offered as a basis for MDHS’s motion. While it is tempting to address them, the
moving party must initially “inform[] the district court of the basis for its motion . . . .” Celotex
Corp., 477 U.S. at 323. And while the Court may act sue sponte, it must give the nonmovant
notice and an opportunity to respond. See Arkwright-Boston Mfrs. Mut. Ins. Co. v. Aries Marine
Corp., 932 F.2d 442, 445 (5th Cir. 1991). Accordingly, the Court limits review to the issue
MDHS raised.
8
[T]he test whether the harassment is severe or pervasive is stated in the
disjunctive. . . . Frequent incidents of harassment, though not severe, can reach
the level of “pervasive,” thereby altering the terms, conditions, or privileges of
employment such that a hostile work environment exists. Thus, “the required
showing of severity or seriousness of the harassing conduct varies inversely with
the pervasiveness or frequency of the conduct.”
Lauderdale v. Tex. Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 163 (5th Cir.
2007) (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)).
What Houston describes in this case is a series of less severe acts. In general, she states
that Darby: (1) improperly reprimanded her; (2) falsely accused her of being a liar; (3) falsely
accused her of soliciting co-workers to donate their leave time; (4) violated MDHS policy by
prematurely placing Houston on a PIP in 2012; (5) constantly told Houston she was “stupid” or
had emotional and/or mental issues; (6) singled out Houston by requiring her to sign in and out of
work; (7) threatened Houston with the loss of compressed days before higher management
stepped in and reversed the decision; (8) singled out Houston by requiring her to attend weekly
meetings with Darby during which Darby was verbally abusive and demeaning; (9) forced
Houston to prepare weekly memoranda summarizing the meetings; and (10) generally “bullied”
Houston in the workplace.
MDHS argues that these facts are “most akin to the behavior found in Aryain v. Wal-Mart
Stores Texas, LP, 534 F.3d 473, 478 (5th Cir. 2008).” Def.’s Mem. [39] at 9 (addressing
retaliation claim). Though the facts in Aryain seem distinguishable, the Fifth Circuit reversed
summary judgment on the sexual-harassment claim, finding issues of fact at the prima facie
stage. Id.
9
In this case, the pervasiveness issue has not been addressed, and absent more direct
argument, the Court is reluctant to find that the facts
to the nonmovant
when viewed in the light most favorable
fail as a matter of law. Finally, “[e]ven if the standards of Rule 56 are met, a
court has discretion to deny a motion for summary judgment if it believes that “the better course
would be to proceed to a full trial.” Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th
Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The Court elects
to carry the issue to trial.3
C.
Title VII Retaliation Claim
MDHS further argues that Houston has not established a prima facie case for Title VII
retaliation. “To set out a prima facie case of Title VII retaliation, a plaintiff must show (1) that
she engaged in activity protected by Title VII, (2) that an adverse employment action occurred,
and (3) that a causal link existed between the protected activity and the adverse action.” Davis v.
Fort Bend Cnty., 765 F.3d 480, 489 90 (5th Cir. 2014) (internal quotation marks omitted).
MDHS again focuses on a single issue, arguing that Houston fails to demonstrate an
adverse employment action under Title VII. To establish an adverse employment action,
Houston must show that
3
Because MDHS focuses solely on the severity issue in its opening memorandum, the
Court has not evaluated whether the listed issues reflect proper management or a series of
trumped up accusations. At a minimum, Darby’s supervisor, Michael Gallarno, responded to the
conflict by “[e]ncourag[ing] [Darby] to seek training opportunities to better her supervision
skills,” believing “that she needed more experience as a supervisor.” Gallarno Dep. [43-3] at 16.
Of course that does not establish that the reprimands and corrections were unwarranted or that
they were based on race but again those issues were not raised in MDHS’s opening brief.
Finally, to the extent MDHS touches on causation in its reply, “[i]t is the practice of . . . the
district courts to refuse to consider arguments raised for the first time in reply briefs.” Gillaspy v.
Dallas Indep. Sch. Dist., 278 F. App’x 307, 315 (5th Cir. 2008) (citation omitted).
10
a reasonable employee would have found the challenged action materially
adverse, which in this context means that it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination. . . .
[P]etty slights, minor annoyances, and simple lack of good manners are not
actionable retaliatory conduct; Title VII does not set forth a general civility code
for the American workplace. . . . [T]he significance of any given act of retaliation
will often depend upon the particular circumstances. Context matters.
Id. at 490 (citations and internal quotation marks omitted).
After considerable time and effort, the Court concludes that this claim should also go
forward. There is a large body of law addressing Title VII retaliation, and there are any number
of legal arguments that could be specifically applied to the facts in this case.4 But the Court is
not willing to make those arguments and apply them to a disputed record without better
guidance. As MDHS acknowledges, this is a question of fact that is often decided as a matter of
law. Def.’s Mem. [39] at 9. Here, the facts related to this claim largely overlap the harassment
claim, so even if summary judgment would be otherwise appropriate, the Court will exercise its
discretion and carry the issue forward. See Firman, 684 F.3d at 538.
D.
FMLA Retaliation Claim
Houston makes two FMLA-related claims: “Defendant MDHS interfered with her leave
under the FMLA and retaliated against her for taking approved leave under the FMLA.” Pl.’s
Mem. [42] at 34. The first is deficient; the second will proceed to trial.
4
For example, some of the alleged acts predate the protected activity. See Watkins v. Tex.
Dep’t of Criminal Justice, 269 F. App’x 457, 461 (5th Cir. 2008) (“[M]any of the actions
Watkins complains of cannot be retaliatory because they predate his participation in any
protected activity.”).
11
1.
Interference
Section 2615(a)(1) provides that an employer may not “interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C.
§ 2615(a)(1). “The term ‘interference with’ includes ‘not only refusing to authorize FMLA
leave, but discouraging an employee from using such leave.’” Bell v. Dallas Cnty., 432 F. App’x
330, 334 (5th Cir. 2011) (quoting 29 C.F.R. § 825.220(b) (2010); Stallings v. Hussmann Corp.,
447 F.3d 1041, 1050 51 (8th Cir. 2006)). “With an interference claim, an employee must show
that he was denied his entitlements under the FMLA, or, that an employer did not respect the
employee’s FMLA entitlements.” Id. (citing Kauffman, 426 F.3d at 884).
In this case, Houston seems to premise the interference claim on an email she received
from Darby on January 2, 2013, while Houston was on FMLA leave. See Houston Dep. [38-1] at
46 (addressing email when asked for basis of claim). The email states in full:
The agency has received complaints from DHS personnel in regard to you
contacting them personally asking them to donate leave on your behalf due to your
mother’s condition/hospitalization. This is a violation of agency policy and
donated leave can and will be withdrawn if you continue to contact employees
requesting donated leave. The agency has requested donated leave on your behalf
and those who chose to donate their time have graciously done so, efforts on your
part to personally contact staff requesting additional donated leave must cease
immediately.
While I am praying for your mother’s recovery and know that you are concerned
about her and your available leave, you must comply with agency policy and be
respectful not to offend or infringe upon the rights of other DHS personnel.
See Email [38-1] at 77.
Though Houston denies having contacted co-workers to seek donated leave time, she
does suggest in her deposition that she may have asked at least one co-worker who contacted
12
Houston
to donate time. Houston Dep. [38-1] at 48. Regardless, it is difficult to see how this
email “interfered with her leave” as she now suggests. Pl.’s Mem. [42] at 34. As MDHS
observes, it approved her time and Houston cannot say whether her time was incorrectly
calculated. Def.’s Mem. [39] at 15 (citing Houston Dep. [38-1] at 45). Houston offers no
evidence in her response showing an actual interference, so this portion of the claim is
dismissed.5
2.
Retaliation
“To make a prima facie showing of retaliation under the FMLA, [a plaintiff] must show
that: (1) she was protected under the FMLA; (2) she suffered an adverse employment decision;
and either (3a) that she was treated less favorably than an employee who had not requested leave
under the FMLA; or (3b) the adverse decision was made because she took FMLA leave.” Hunt,
277 F.3d at 768.
Here, Houston mentions the email, the adverse PAR, the April 2013 PIP, and the alleged
constructive discharge, “inter alia,” as constituting retaliation for taking FMLA leave. Pl.’s
Mem. [42] at 34 36. MDHS’s only argument as to this portion of the claim states in full: “She
also testified that while it is her personal belief that she was retaliated against for taking FMLA
leave, she has no facts to support that claim.” Def.’s Mem. [38-1] at 15 (citing Houston Dep.
[38-1] at 39).
5
Even assuming MDHS interfered with donated time which is not established it would
still fail to state an FMLA interference claim. An interference claim requires proof that MDHS
interfered with “entitlements under the FMLA.” Bell, 432 F. App’x at 334. And there is no
entitlement to donated leave. See Rodriguez v. Atria Sr. Living Grp., Inc., 887 F. Supp. 2d 503,
517 (S.D.N.Y. 2012) (dismissing interference claim related to donated time); Kilcrease v. Coffee
Cnty., Ala., 951 F. Supp. 212, 215 (M.D. Ala. 1996) (same).
13
MDHS’s argument is legally correct
a “plaintiff’s subjective belief, without more, that
an adverse employment action was retaliatory is insufficient to survive summary judgment.”
Vicknair v. La. Dep’t of Pub. Safety & Corr., 555 F. App’x 325, 331 (5th Cir. 2014) (citation and
quotation marks omitted). But in her response, Houston makes other arguments, including
arguments based on the timing of the various employment decisions and the propriety of those
decisions. See generally Pl.’s Mem. [42] at 34 37. MDHS offers no rebuttal to any of
Houston’s arguments in this regard, and makes no reference to the FMLA claims in its reply.
It is again tempting to address Houston’s arguments, but that would require a deep dive
into the record evidence and legal issues that neither party has briefed. It would also require
notice to Houston and an opportunity to respond. Arkwright-Boston Mfrs. Mut. Ins. Co., 932
F.2d at 445. Accordingly, the Court concludes that the issue should be carried to trial.
E.
Title VII Constructive-Discharge Claim
To support her constructive-discharge theory, Houston essentially offers the same conduct
forming the basis of her harassment claim. According to MDHS, these facts fail to make a prima
facie case for constructive discharge. As stated in Brown v. Kinney Shoe Corp.:
A resignation is actionable under Title VII . . . only if the resignation qualifies as a
constructive discharge. To prove a constructive discharge, a plaintiff must
establish that working conditions were so intolerable that a reasonable employee
would feel compelled to resign. . . . Constructive discharge requires a greater
degree of harassment than that required by a hostile environment claim.
Discrimination alone, without aggravating factors, is insufficient for a claim of
constructive discharge . . . .
237 F.3d 556, 566 (5th Cir. 2001) (citations and internal quotation marks omitted). Those nonexclusive aggravating factors were listed in Lauderdale:
14
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to work under a
younger supervisor; (6) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (7) offers of early
retirement [or continued employment on terms less favorable than the employee’s
former status].
512 F.3d at 167.
In this case, MDHS argues that the only aggravating factor Houston presents is
harassment and that the harassment alleged is insufficient even if true the Court agrees.
Numerous Fifth Circuit cases have rejected similar claims. For example, in Perret v. Nationwide
Mutual Insurance Co., two employees claimed their employer “did not fairly evaluate their
compliance with the coaching plans and PIPs, and that the result of the coaching plans and PIPs
was intended to be and would inevitably have been termination.” 770 F.3d 336, 339 (5th Cir.
2014). The Fifth Circuit found that this was not sufficient and reversed a jury verdict in the
employees’ favor. Id.
An even tighter fit occurred in Haley v. Alliance Compressor LLC, where the employee
claimed that her employer fabricated deficiencies in her work performance, set an overly strict
performance plan; threatened to fire her, micromanaged her work, excluded her from department
meetings, and ridiculed her in front of coworkers. 391 F.3d 644, 650, 653 (5th Cir. 2004). The
employee also produced evidence “tending to show her superiors’ intent to remove her from her
job while she was on leave,” though that never happened. Id. at 652. After noting that the
employee failed to show an aggravating factor other than “badgering, harassment, or
humiliation,” the Fifth Circuit held that she failed to create a jury question on constructive
15
discharge. Id. at 652 53; see also Brown v. Liberty Mut. Group, Inc., No. 14-10219, 2015 WL
1609141, at *2 (5th Cir. Apr. 10, 2015) (citing Haley, 391 F.3d at 653).
Even with more severe aggravating factors, the Fifth Circuit has previously held that no
constructive discharge occurred as a matter of law. See Hunt v. Rapides Healthcare Sys., LLC,
277 F.3d 757, 772 (5th Cir. 2001) (affirming summary judgment where employee was placed on
different shift and lost compensation); Brown v. Bunge Corp., 207 F.3d 776, 782 83 (5th Cir.
2000) (same where employee was demoted and had fewer job responsibilities); Bozé v.
Branstetter, 912 F.2d 801, 805 06 (5th Cir. 1990) (same where employee suffered poor
performance evaluation and loss of responsibilities similar to demotion).
Viewed in a light most favorable to Houston, the present conduct is no more severe than
that in Haley. The Court therefore concludes that Houston has not met her burden on this aspect
of her claim.
IV.
Conclusion
The Court has considered the parties’ arguments. Those not specifically addressed would
not have changed the outcome. For the foregoing reasons, MDHS’s Motion for Summary
Judgment [38] is granted as to the state-law claims, Americans with Disability Act claims,
Family Medical Leave Act interference claim, and claims related to alleged constructive
discharge. The parties are instructed to contact the Courtroom Deputy to set the case for pretrial
conference.
SO ORDERED AND ADJUDGED this the 18th day of September, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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