Dowdell v. Culpepper & Associates Security Services, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NIGIL DOWDELL, CIVIL ACTON

Plaintiff

VERSUS NO. 19-11410

CULPEPPER & ASSOCIATES

SECURITY SERVICES, INC., SECTION “E” (4)

Defendant

ORDER AND REASONS

Before the Court is a motion for summary judgment filed by Defendant Culpepper

and Associates Security Services, Inc.1 For the reasons that follow, Defendant’s motion for

summary judgment is GRANTED IN PART AND DENIED IN PART.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was hired by Defendant to work as a Security Officer at the New Orleans

Veterans Hospital in New Orleans, Louisiana.2 Plaintiff was employed by Defendant from

March 29, 2018, until July 9, 2018.3

Plaintiff brings claims for sexual harassment in violation of 42 U.S.C.A. § 2000e

(Title VII); hostile work environment in violation of Title VII; retaliation in violation of

Title VII; and violation of the Americans with Disabilities Act (ADA) for failure to provide

reasonable accommodations for a temporarily disability.4 Additionally, Plaintiff brings

claims under Louisiana law.5

1 R. Doc. 52. Plaintiff Nigil Dowdell opposes the motion. R. Doc. 67. Defendant replied to Plaintiff’s

opposition. R. Doc. 69. Plaintiff filed a Sur Reply in response to Defendant’s reply. R. Doc. 77.

2 R. Doc. 52-1 at ¶ 1; R. Doc. 67-1 at ¶ 1.

3 Id.

4 R. Doc. 1-1 at 7-9.

5 Id.

Plaintiff alleges her claims stemmed from an incident of sexual harassment that

took place on June 5, 2018.6,7 On that day, Plaintiff alleges she was at work when shift

supervisor, Ahmad Assad, touched her inappropriately.8 In her state court petition,

Plaintiff alleges she reported the incident to Defendant’s office administrator, Ms. Freda

Herbert.9 After Plaintiff reported the incident, Assad was fired.10 On November 1, 2018,

Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity

Commission (EEOC) on her own behalf.11

LAW AND ANALYSIS

I. Failure to Exhaust Administrative Remedies

Title VII makes it unlawful for an employer to discriminate against any individual

“with respect to compensation, terms, conditions, or privileges of employment, because

of an individual’s race, color, religion, sex, or national origin.”12 A complainant must file

a timely charge with the Equal Employment Opportunity Commission (EEOC), or with a

state or local agency with authority to grant or seek relief from the alleged unlawful

employment practice, prior to commencing a civil action in federal court under Title VII.13

In assessing whether a charge properly exhausts a particular claim, the EEOC charge is to

6 R. Doc. 1-1 at ¶ 15; R. Doc. 52-1 at ¶ 11.

7 In her affidavit attached to her opposition to the motion for summary judgment, Plaintiff states that prior

to this incident, Assad had regularly greeted her with “Morning beautiful” or “Hey gorgeous,” and would

linger around her during breaks at work. R. Doc. 67-2 at 2-3. Defendant has filed a motion to strike the

Plaintiff’s declaration and certain exhibits attached thereto. R. Doc. 63. The Court has not yet ruled on the

motion to strike. The declaration and the objected-to exhibits are not determinative and were not

considered by the Court in connection with this ruling.

8 Id.

9 R. Doc. 1-1 at 4. Plaintiff refers to Ms. Herbert as “Ms. Hebert” in her petition. However, in Plaintiff’s

opposition, her name is spelled “Herbert,” which the Court presumes is accurate and uses throughout this

order. R. Doc. 67 at 2.

10 R. Doc. 1-1 at ¶ 21; R. Doc. 52-1 at ¶ 12.

11 R. Doc. 1-1 at ¶ 11; R. Doc. 52-5; R. Doc. 67-5 at 3.

12 42 U.S.C.A. § 2000e(a)(1).

13 42 U.S.C.A. § 2000e-5.

be construed broadly, as Title VII “was designed to protect the many who are unlettered

and unschooled in the nuances of literary draftsmanship”.14 However, the court will only

find a claim is exhausted when it could “reasonably be expected to grow out of the charge

of discrimination.”15 An employee may file a civil action “not only upon the specific

complaints made by the employee’s initial EEOC charge, but also upon any kind of

discrimination like or related to the charge’s allegations, limited only by the scope of the

EEOC investigation that could reasonably be expected to grow out of the initial charges

of discrimination.”16

A complainant also must comply with the ADA’s administrative requirements prior

to commencing an action in federal court by filing a charge with the EEOC alleging

discrimination based on disability.17 “The ADA incorporates Title VII’s “powers, remedies,

and procedures,” including its administrative exhaustion requirements.”18 As with Title

VII, the scope of the EEOC charge should be limited to those claims which can reasonably

be expected to grow out of the charge.19

The Fifth Circuit explains “because more complaints are initiated pro se, the scope

of an EEOC complaint should be construed liberally.”20 Defendant argues, because

Plaintiff mentioned an attorney in her EEOC charge, Plaintiff was not pro se when she

prepared her EEOC charge, and accordingly the charge should not be interpreted

14 McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008) (citing Sanchez v. Standard Brands,

Inc., 431 F.2d 455, 465 (5th Cir. 1970)).

15 Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970).

16 Fellows v. Universal Rests., Inc., 701 F.2d 447, 451 (5th Cir. 1983).

17 42 U.S.C. § 2000e-5(f)(1); see also Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996).

18 Dye v. IASIS Glenwood Regional Medical Center LP, 2018 WL 5660319 at *6 (W.D. La. Oct. 9, 2018)

(citing 42 U.S.C. § 12117).

19 Franklin v. City of Slidell, 936 F. Supp. 2d 691, 709-10 (E.D. La. 2013) (noting the administrative

exhaustion requirements for ADA claims are the same as Title VII claims).

20 Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006).

broadly.21 Plaintiff’s only mention of an attorney in her EEOC charge references advice

she received from an attorney regarding reporting to a work shift. Plaintiff does not

otherwise indicate, and it does not appear to the Court, she had the assistance of counsel

in drafting her EEOC charge. Defendant has not provided evidence Plaintiff was assisted

by counsel in preparing her EEOC charge. The Court will consider Plaintiff as being pro

se at the time she filed her charge, and the charge will be construed liberally for the

purpose of determining administrative exhaustion.22

Title VII’s EEOC charge requirement is not jurisdictional.23 Rather, Title VII’s

charge-filing instructions speak to the party’s procedural obligations.24 “Title VII’s

charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional

prescription delineating the adjudicatory authority of courts.”25 Accordingly, the

appropriate disposition of Title VII claims that have not been exhausted is dismissal

without prejudice.26 A plaintiff may then return to the court after she has exhausted her

administrative remedies.27 Because the ADA’s requirements for administrative

exhaustion are parallel to those in Title VII, the ADA’s charge-filing requirement is

mandatory, like Title VII’s, although “not a jurisdictional prescription delineating the

adjudicatory authority of courts.”28

21 R. Doc. 69; see McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008) (citing Sanchez v.

Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970)).

22 Even if the EEOC charge was not construed liberally, the Court would reach the same result.

23 Fort Bend County, Texas v. Davis, 139 S. Ct. 1843, 1846 (2019).

24 Schellhaas v. Southwest Airlines Co., 2019 WL 3238565 at *4 (E.D. La. July 18, 2019).

25 Fort Bend County, Texas v. Davis, 139 S. Ct. 1843, 1851 (2019)

26 Johnson v. City of New Orleans, 2020 WL 1285909 at *3 (E.D. La. March 18, 2020). The Court has not

made a finding as to whether any claim filed after exhaustion would be timely.

27 Id.

28 Betts v. Winco Foods, LLC, 2020 WL 512294 at *3 (E.D. Tex. Jan. 31, 2020) (citing Fort Bend County,

Texas v. Davis, 139 S. Ct. 1843, 1851 (2019)).

Defendant filed the instant motion for summary judgment on Plaintiff’s claims for

sexual harassment and hostile work environment in violation of Title VII for failure to

exhaust administrative remedies.29 Defendant also moves to dismiss Plaintiff’s ADA claim

for failure to exhaust administrative remedies.30 Defendant admits Plaintiff exhausted

administrative remedies in regard to her claim of retaliation in violation of Title VII and

does not seek summary judgment on this claim based on failure to exhaust administrative

remedies.31

In this case, Plaintiff filed a charge with the EEOC on November 1, 2018.32 In her

charge, it is undisputed Plaintiff checked only the “retaliation” box on the form.33 In the

“particulars” section of her EEOC charge, Plaintiff wrote as follows:

I. I began my employment with the above Respondent in 2017 most recently

as a Security Guard. Beginning July 5, 2018 I was subjected to sexual

harassment by Assad LNU. Shortly after I reported the sexual harassment I

was informed of my discharge effective July 9, 2018 by Ms. Freida

He[r]bert. The company employs over 100 persons.

II. No reason was given for the actions taken against me. After I reported

Assads sexual harassment he admitted to the allegations and was fired the

same day. After this Ms. Freida He[r]bert tried to switch my work location.

I informed her that I did not feel comfortable working at the new assigned

area due to Assads termination. Ms. He[r]bert became upset after I called

in several hours before my shift. When I went to the job to talk to Ms.

He[r]bert I was informed of my discharge effective July 9, 2018.

III. I believe I have been retaliated against for opposing practices made illegal

in violation of Title VII of the Civil Rights Act of 1964 as amended.34

29 R. Doc. 52.

30 Id.

31 R. Doc. 52-1 at ¶ 29.

32 R. Doc. 52-5; R. Doc. 67-5 at 3.

33 R. Doc. 52-1 at ¶ 29; R. Doc. 67-1 at ¶ 29.

34 R. Doc. 52-5; R. Doc. 67-5 at 3.

“While the court’s scope of inquiry is not limited to the boxes checked, it is limited to that

which can reasonably be expected to grow out of the charge. [T]he crucial element of a

charge of discrimination is the factual statement contained therein. Everything else

entered on the form is, in essence, a mere amplification of the factual allegations.”35 A

claim may reasonably be expected to grow out of a charge when the charge did or should

have put the employer on notice of a potential claim.36

In relation to Plaintiff’s claims involving sexual harassment and hostile work

environment, Plaintiff has exhausted her administrative remedies. Although Plaintiff did

not check the box labeled “sex” on her EEOC charge, she mentioned one instance of sexual

harassment twice in the “particulars” section, and detailed behavior that happened in

relation to the incident of sexual harassment. As the Fifth Circuit made clear in Frazier v.

Sabine River Authority, failing to check the correct box does not preclude Plaintiff from

exhausting administrative remedies.37 The focus on the analysis should be on the written

content of the charge. For example, the court in Gunnell v. Utah Valley State College

found “[t]he allegation in the [EEOC charge], though sparse, identifies the type of

discrimination complained of, the alleged harasser, and an approximate time period, and

thus is minimally sufficient to satisfy the requirements for the contents of a charge of

discrimination and the purposes of the notice requirement.”38 In this case, Plaintiff

identifies the type of discrimination as sexual harassment, names co-worker Assad as the

35 Frazier v. Sabine River Auth. La., 509 F. App’x 370, 373-74 (5th Cir. 2013) (per curium).

36 Manning v. Chevron Chem. Co., 332 F.3d 874, 878-79 (5th Cir. 2003) (“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.” (internal quotation marks omitted)); see also DeBlanc v. St. Tammy Parish School

Bd., 2015 WL 1245781 at *8 (E.D. La. March 18, 2015) (concluding defendant was on notice of plaintiff’s

ADA claim due to facts alleged in plaintiff’s EEOC charge).

37 See Frazier v. Sabine River Auth. La., 509 F. App’x 370, 373-74 (5th Cir. 2013) (per curium).

38 Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir. 1998).

harasser, and reports the time frame of the harassment and resulting actions in her EEOC

charge. Although Plaintiff’s EEOC charge is sparse, it provides enough relevant details

relating to sexual assault and hostile work environment that, when construed broadly,39

Plaintiff’s writing should have put Defendant on notice of the existence and nature of the

charges against it.40

In order to exhaust administrative remedies under the ADA, Plaintiff must file a

charge with the EEOC alleging discrimination based on disability.41 For example, in Ross,

the plaintiff submitted an EEOC charge and checked only the “retaliation” box.42 The

court found because the plaintiff did not check the “disability” box or allege any

particulars about a disability on her EEOC form, the plaintiff had not exhausted

administrative remedies in relation to her ADA claim.43 In this case, by failing to check

the “disability” box or mention anything about disability in the “particulars” section of her

EEOC charge, Plaintiff did not put Defendant on notice of a possible ADA claim. The claim

of disability does not “reasonably grow out of” a claim for retaliation, the box Plaintiff

checked, or the situation described in the “particulars” section because there was no

reference whatsoever to Plaintiff’s alleged temporary disability or Defendant’s failure to

accommodate it.44 Plaintiff did not exhaust her administrative remedies under the ADA.

Accordingly, Defendant’s motion for summary judgment on the claim of violation of the

39 McClain v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir. 2008) (citing Sanchez v. Standard Brands, Inc.,

431 F.2d 455, 465 (5th Cir. 1970)).

40 Manning v. Chevron Chem. Co., 332 F.3d 874, 878-79 (5th Cir. 2003).

41 Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996).

42 Ross v. GTE Wireless of Houston, Inc., 2000 WL 1279618, at *8 (S. D. Tex. Jan 13, 2000).

43 Id.

44 McClain v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir. 2008).

ADA for failure to provide reasonable accommodations for a temporary disability is

granted for failure to exhaust her administrative remedy.45

II. Summary Judgment Standard

Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.”46 “An issue is material if its resolution could affect the outcome of the action.”47

When assessing whether a material factual dispute exists, the Court considers “all of the

evidence in the record but refrain[s] from making credibility determinations or weighing

the evidence.”48 All reasonable inferences are drawn in favor of the non-moving party.49

There is no genuine issue of material fact if, even viewing the evidence in the light most

favorable to the non-moving party, no reasonable trier of fact could find for the non-

moving party, thus entitling the moving party to judgment as a matter of law.50

45 In regard to Defendant’s Motion In Limine to exclude certain evidence at trial, R. Doc. 56, motion is

denied in part and granted in part. To the extent Defendant seeks to exclude evidence of Plaintiff’s claims

of sex discrimination, hostile work environment, and sexual harassment for failure to exhaust

administrative remedies, the Court has determined the scope of Plaintiff’s EEOC charge and has determined

Plaintiff has exhausted her administrative remedies on these claims. Accordingly, Defendant’s Motion In

Limine is denied with respect to Plaintiff’s sex discrimination, hostile work environment, and sexual

harassment claims. The Motion in Limine also is denied with respect to the testimony of Brasuan Thompson

as irrelevant and unduly prejudicial. Ms. Thompson’s testimony may be relevant to the issue of whether

Defendant knew or should have known of the sexual harassment because it was pervasive. Further, the

testimony is not overly prejudicial. Defendant is reminded this case is scheduled for a bench trial and the

need for pre-trial rulings on admissibility of evidence is significantly reduced. See United States v.

Carderas, 9 F.3d 1139, 1154 (5th Cir. 1993); Government of the Canal Zone v. Jimenez G., 580 F.2d 897

(5th Cir. 1978). Defendant’s Motion In Limine is granted with respect to Plaintiff’s ADA claim, as the Court

found Plaintiff did not exhaust her administrative remedies on this claim. The Court will not determine at

this time whether the ADA claim is time barred, as it has already determined administrative remedies were

not exhausted.

46 FED. R. CIV. P. 56; see also Celotex, 477 U.S. at 322–23.

47 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

48 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see

also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).

49 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

50 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell

Energy, Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).

“[A] party seeking summary judgment always 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.”

To satisfy Rule 56’s burden of production, the moving party must do one of two things:

“the moving party may submit affirmative evidence that negates an essential element of

the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the

nonmoving party’s evidence is insufficient to establish an essential element of the

nonmoving party’s claim.” If the moving party fails to carry this burden, the motion must

be denied. If the moving party successfully carries this burden, the burden of production

then shifts to the non-moving party to direct the Court’s attention to something in the

pleadings or other evidence in the record setting forth specific facts sufficient to establish

a genuine issue of material fact does indeed exist.51

If the dispositive issue is one on which the non-moving party will bear the burden

of persuasion at trial, the moving party may satisfy its burden of production by either (1)

submitting affirmative evidence negates an essential element of the non-movant’s claim,

or (2) affirmatively demonstrating there is no evidence in the record to establish an

essential element of the non-movant’s claim.52 If the movant fails to affirmatively show

the absence of evidence in the record, its motion for summary judgment must be denied.53

Thus, the non-moving party may defeat a motion for summary judgment by “calling the

Court’s attention to supporting evidence already in the record that was overlooked or

ignored by the moving party.”54 “[U]nsubstantiated assertions are not competent

51 Celotex, 477 U.S. at 322–24.

52 Id. at 331–32 (Brennan, J., dissenting).

53 See id. at 332.

54 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the

evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving

summary judgment evidence. The party opposing summary judgment is required to

identify specific evidence in the record and to articulate the precise manner in which that

evidence supports his or her claim. ‘Rule 56 does not impose upon the district court a duty

to sift through the record in search of evidence to support a party’s opposition to summary

judgment.’”55

III. Sexual Harassment/Hostile Work Environment

Plaintiff alleges she was sexually harassed on June 5, 2018, by shift manager

Assad.56 Sexual harassment is a form of sex discrimination under Title VII.57 The Supreme

Court recognizes two types of sexual harassment claims under Title VII: (1) claims based

on requests for sexual favors that result in adverse employment actions (“quid pro quo

claims”); and (2) claims in which bothersome attention or sexual remarks create a hostile

work environment.58

Under quid pro quo claims, an “employer may be vicariously liable [under Title

VII] for an employee’s unlawful harassment only when the employer has empowered that

employee to take tangible employment actions against the victim.”59 Although Assad’s

title includes the term “manager,” he was not considered to be Plaintiff’s manager, as he

party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce

additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit

an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.

55 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsyth

v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–

16 & n.7 (5th Cir. 1992)).

56 R. Doc. 1-1; R. Doc. 52-5; R. Doc. 67-5 at 3.

57 Gaudet v. City of Kenner, 2012 WL 1995295 at *2 (E.D. La. June 4, 2012). Defendant moves for summary

judgment on Plaintiff’s sex discrimination claim. However, the sex discrimination alleged by Plaintiff is in

the form of sexual harassment resulting in a hostile work environment. Accordingly, the Court analyzed the

Plaintiff’s claims for sex discrimination, sexual harassment, and hostile work environment jointly under the

appropriate case law.

58 Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998); Burlington Indus. V. Ellerth, 118 S. Ct. 2257

(1998).

59 Vance v. Ball State University, 570 U.S. 421, 430-31 (2013).

did not have power to take tangible employment action against her.60 Plaintiff admits in

her opposition to Defendant’s motion for summary judgment Assad did not have

authority to hire or fire her and is considered a co-worker for the purposes of Title VII.61

In Hague v. University of Texas Health Science Center at San Antonio, the Fifth

Circuit held plaintiff’s sexual harassment claim failed because the aggressor was not her

supervisor.62 The Fifth Circuit goes on to explain that plaintiff’s harassment claim was

properly analyzed under the standards for hostile work environment, because the

harasser was a co-worker rather than a supervisor.63 Similarly, because Plaintiff admits

Assad is considered a co-worker for the purposes of Title VII, Plaintiff’s sexual harassment

claim is properly analyzed under the standards for hostile work environment.64

“To avoid summary judgment at the prima facie stage of a hostile work

environment claims, a plaintiff must present evidence that creates a genuine dispute of

material fact as to whether 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.”65,66 In order to establish a prima facie case for hostile work

60 R. Doc. 52-2 at 15.

61 R. Doc. 67 at 26.

62 Hague v. Univ. of Tex. Health Sci. Ctr. At San Antonio, 560 Fed. Appx. 328, 331 (5th Cir. 2014).

63 Id. at 332 (citing Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001)).

64 Joseph v. Phillips, 2014 WL 5429455 at *2 (E.D. La. Oct. 24, 2014) (citing Hague v. Univ. of Tex. Health

Sci. Ctr. At San Antonio, 560 Fed. Appx. 328, 332 (5th Cir. 2014)).

65 Lounds v. Lincare, Inc., 812 F.3d 1208, 1222 (10th Cir. 2015).

66 The McDonnell Douglas burden-shifting analysis does not apply to this claim. Other circuits have

concluded the McDonnell Douglas burden-shifting does not apply in the context of hostile work

environment claims under Title VII. See Pollard v. E.I. DuPont de Nemours Co., 213 F.3d 933, 943 (6th Cir.

2000) (explaining that the McDonnell Douglas framework cannot apply to a hostile work environment

sexual harassment claim because “there is no legitimate justification for such an environment, and thus

recourse to the McDonnell Douglas test is not warranted”), rev’d on other grounds; see also Martin v.

Nannie & The Newborns, Inc., 3 F.3d 1410, 1417 n.8 (10th Cir. 1993) overruled on other grounds; Johnson

v. Booker T. Washington Broad Serv., Inc., 234 F.3d 501, 510-11 (11th Cir. 2000) (the district courts should

employ normal principles of proof and pleading allocation.). At this time, there is no case on point from the

Fifth Circuit, but the Court finds the opinions from other circuits to be persuasive and their reasoning is

adopted by the Court.

environment sexual harassment claim under Title VII, a plaintiff must show: (1)

membership in a protected group; (2) unwelcome sexual harassment; (3) harassment

complained of is based on sex; (4) harassment complained of affected a term, condition,

or privilege of employment; and (5) the employer knew or should have known of the

harassment and failed to take prompt remedial action.67

In this case, there is no dispute that Plaintiff, as a woman, is a member of a

protected group. Plaintiff alleges she suffered unwelcome sexual harassment on June 5,

2018, by co-worker Assad.68 Defendant admits a complaint of sexual harassment was

conveyed to Ms. Herbert shortly thereafter.69 The harassment complained of was based

on sex, as it involved inappropriate touching by a member of another gender.70 In this

instance, Plaintiff alleges she suffered a single instance of sexual harassment. “For sexual

harassment to be actionable under Title VII, it must be sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive working

environment.”71 Further, “the test—whether the harassment is severe or pervasive—is

stated in the disjunctive. An egregious, yet isolated, incident can alter the terms,

conditions, or privileges of employment and satisfy the fourth element necessary to

constitute a hostile work environment.”72 The Fifth Circuit uses an objective “reasonable

person” standard to evaluate severity and pervasiveness.73 “[A] sexually objectionable

environment must be both objectively and subjectively offensive, one that a reasonable

67 Hague v. Univ. of Tex. Health Sci. Ctr. At San Antonio, 560 Fed. Appx. 328, 332 (5th Cir. 2014).

68 R. Doc. 1-1 at ¶ 14.

69 R. Doc. 52-1 at ¶ 11; R. Doc. 67 at ¶ 11.

70 Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000) (determining that “[h]arassing

conduct constitutes discrimination based on sex when members of one sex are exposed to disadvantageous

terms or conditions of employment to which members of the other sex are not exposed.”

71 Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005) (emphasis added).

72 Lauderdale v. Texas Dept. of Criminal Justice, Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007).

73 Acosta v. Boudreau & Thibodeau’s Cajun Cookin’ Inc., 2017 WL 3521595 at 3 (E.D. La. Aug. 16, 2017).

person would find hostile or abusive, and one that the victim in fact did perceive to be

so.”74 In determining whether a work environment meets this standard, the court

considers the totality of the circumstances, “including 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.”75

In the instant case, Plaintiff alleges one incidence of physical sexual harassment in

her petition—Assad “shoving his hand between her legs and groping her vagina.”76 Under

a reasonable person standard, a reasonable individual could find this action to be severe

enough to alter the conditions of her employment.77 Plaintiff alleges she did, in fact, find

this action to be hostile and abusive.78 In reaction to the described incident of sexual

harassment, Plaintiff alleges in her petition that due to her fears for her safety, she began

to feel overwhelming anxiety and “was left with no other option than to call in sick.”79

Considering the totality of the circumstances in a light favorable to the non-moving party,

Plaintiff has shown there are disputed material facts with respect to the fourth element—

that the sexual harassment she experienced affected a term, condition, or privilege of her

employment—precluding summary judgment for the Defendant.

The fifth element of a prima facie case of hostile work environment is whether the

employer knew or should have known of the harassment and failed to take prompt

remedial action. In order to take prompt remedial action, “[a]n employer should promptly

74 Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2283 (1998).

75 Id.

76 R. Doc. 1-1 at ¶ 14.

77 See Acosta v. Boudreau & Thibodeau’s Cajun Cookin’ Inc., 2017 WL 3521595 at 3 (E.D. La. Aug. 16, 2017);

see also Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2283 (1998).

78 R. Doc. 1-1 at ¶ 21, 24, 25, 32.

79 R. Doc. 1-1 at ¶ 25.

take all necessary steps to investigate and correct any harassment, including warnings

and appropriate discipline directed at the offending party, and should generally develop

other means of preventing harassment within the agency.”80 To constitute “prompt

remedial action,” an employer’s response to a harassment complaint must be “reasonably

calculated” to end harassment.81 “What constitutes prompt remedial action, sufficient to

avoid liability, is a fact-specific inquiry and not every response by an employer will be

sufficient to absolve the employer of liability under Title VII.”82

In the instant case, Plaintiff alleges in her petition that the physical sexual

harassment took place on June 5, 2018, she reported the incident to Ms. Herbert, and

Assad’s employment was terminated on June 12, 2018.83 The Fifth Circuit has found that

an employer took prompt remedial action when it suspended the harasser one month

after the incident of sexual harassment occurred.84 In this case, it is undisputed that, after

interviewing Assad, the Director of Operations promptly terminated Assad’s employment

and Plaintiff has not seen or spoken to Assad following his termination.85 By just looking

at this one incident, it appears that Defendant took prompt remedial action.

However, Plaintiff points out in her petition86 and argues in her opposition that

Defendant knew or should have known of Assad’s harassment and taken action earlier

because Assad previously sexually harassed other female employees and Defendant failed

to investigate the conduct or take any action.87 Employers are liable for a co-worker’s

80 Id. at 479 (quoting Bundy v. Jackson 641 F.2d 934, 947 (D.C. Cir. 1981)).

81 Kreamer v. Henry’s Towing, 150 Fed. Appx. 378, 382 (5th Cir. 2005) (citing Skidmore v. Precision

Printing & Packaging, 188 F.3d 606, 615 (5th Cir. 1999).

82 Williams-Boldware v. Denton County, Texas, 741 F.3d 635, 640 (5th Cir. 2014).

83 R. Doc. 1-1 at ¶ 18.

84 Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262-63 (5th Cir. 1999).

85 Id.

86 R. Doc. 1-1 at ¶ 16.

87 Id.

harassment only “when they have been negligent either in discovering or remedying the

harassment.”88 An employer’s legal duty in co-worker employment harassment cases will

be discharged if the employer takes “reasonable steps to discover and rectify acts of sexual

harassment of its employees.”89 In Abbood v. Texas Health and Human Services

Commission, the Fifth Circuit held the defendant took prompt remedial action when the

employer asked plaintiff to prepare a written statement, confronted the harasser about

the allegations, reported the harasser’s conduct up the chain of command, and reassigned

the plaintiff to a different unit.90

An employer has constructive knowledge of harassment “if through the exercise of

reasonable care it should have known what was going on but failed to address it,” or, “[i]f

the harassment complained of is so open and pervasive that the employer should have

known of it, had it but opened its corporate eyes.”91 In the instant case, there is a factual

dispute as to whether Defendant knew or should have known of Assad’s behavior earlier

and taken action to correct it. In her opposition, Plaintiff points to Ms. Brasuan

Thompson’s declaration, in which she testifies she was sexually harassed by Assad on

more than one occasion and she reported the behavior to supervisors.92 Further, Plaintiff

references Ms. Thompson’s declaration, in which Ms. Thompson states “[n]o one talked

to me about the sexual harassment by Mr. Assad after I made the report,” suggesting that

88 Rosales v. City of San Antonio, Texas, 2001 WL 1168797 at *5 (W.D. Tex. July 12, 2001) (quoting

Williamson v. City of Houston, 148 F.3d 462, 465-66 (5th Cir. 1998)).

89 Id. (quoting Williamson v. City of Houston, 148 F.3d 462, 465-66 (5th Cir. 1998)).

90 Abbood v. Texas Health and Human Services Comm., 783 Fed. Appx. 459, 462 (5th Cir. 2019).

91 Arrieta v. Yellow Transp., Inc., 2008 WL 5220569 (N.D. Tex. Dec. 12, 2008) (quoting Sharp v. City of

Houston, 164 F.3d 923, 930 (5th Cir. 1999)).

92 R. Doc. 67-2 at 41, ¶ 10-11. Ms. Thompson states in her deposition, “I had a meeting with Mr. LaBeaud

and Mrs. Gilmore scheduled the next day regarding an unrelated incident, so I told them at the meeting

about the sexual harassment by Mr. Assad.” Ms. Thompson further states, “Mr. LaBeaud and Ms. Gilmore

called Ms. Herbert who then called Chris Culpepper and told him about all the sexual harassment incidents

by Mr. Assad.” Defendant did not move to strike Ms. Thompson’s declaration. R. Doc. 63.

Defendant failed to investigate the report of sexual harassment.93 Whether Assad’s

conduct was pervasive, whether Ms. Thompson reported Assad’s conduct to her

supervisors, and whether Defendant knew or should have known of the harassment are

material factual disputes precluding summary judgment in Defendant’s favor on

Plaintiff’s claim of hostile work environment.

Defendant argues that it may use the Faragher/Ellerth affirmative defense,94

under which the Supreme Court held an employer has an affirmative defense to a hostile

work environment sexual harassment claims if (1) “the employer exercised reasonable

care to prevent and correct promptly any sexually harassing behavior,” and (2) the

employee “unreasonably failed to take advantage of any preventive or corrective

opportunities provided by the employer or to avoid harm otherwise.”95 Because there are

factual disputes as to whether Defendant took reasonable care to prevent sexual

harassment and whether and when Plaintiff and Ms. Thompson reported the harassment,

Defendant is not entitled to summary judgment based on this defense.

IV. Retaliation

A plaintiff may use either direct or circumstantial evidence to prove a case of

intentional discrimination under Title VII.96 “Direct evidence is evidence which, if

believed, proves the fact [of intentional discrimination] without inference or

presumption.”97 If a plaintiff presents direct evidence, the McDonnell Douglas test does

93 R. Doc. 67-2 at 42, ¶ 15.

94 R. Doc. 52-2 at 17; see Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742 (1998).

95 McDaniel v. Shell Oil Co., 350 Fed. Appx. 924, 926 (5th Cir. 2009) (quoting Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 765 (1998)).

96 U.S. Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711, 714 n. 3 (1983).

97 Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (1993).

not apply.98 More often, a plaintiff relies on circumstantial evidence, which requires the

court to apply the Mcdonnell Douglas burden-shifting analysis.99 Under the McDonnell

Douglas test, the plaintiff must first demonstrate a prima facie case of discrimination.100

If successful, the burden of production shifts to the defendant to show a legitimate and

nondiscriminatory basis for the adverse employment decisions.101 Finally, the plaintiff

must then show the defendant’s proffered reason is pretextual or unworthy of belief.102

In order to determine which analysis to apply, the Court first looks to whether there

is direct evidence of intentional discrimination. In this case, Plaintiff has not produced

any evidence that, on its face, shows Defendant acted in a discriminatory way. “In the

context of Title VII, direct evidence includes any statement or written document showing

a discriminatory motive on its face.”103 In the absence of direct evidence showing

Defendant’s alleged discriminatory motive, Plaintiff relies on circumstantial evidence,

and therefore must first establish a prima facie case of retaliation.104

Plaintiff alleges she was retaliated against for reporting one instance of sexual

harassment.105 Title VII prohibits an employer from taking adverse employment action

against an employee because she engages in a protected activity.106 To establish a prima

facie case of retaliation, a plaintiff must show that: (1) she participated in an activity

protected under the statute; (2) her employer took an adverse employment action against

98 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)

99 Smith v. Touro Infirmary, 2015 WL 5093487 at *2 (E.D. La. Aug. 28, 2015) (applying McDonnell Douglas

analysis to determine motion for summary judgment).

100 Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5t h Cir. 1994) (applying McDonnell Douglas test).

101 Id.

102 Id.

103 Portis v. First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 329 (5th Cir. 1994).

104 See Smith v. Touro Infirmary, 2015 WL 5093487 at *2 (E.D. La. Aug. 28, 2015).

105 R. Doc. 1-1 at ¶ 51.

106 Joseph v. Phillips, 2014 WL 5429455 at *3 (E.D. La. Oct. 24, 2014).

her; and (3) a causal connection exists between the protected activity and the adverse

action.107

If the plaintiff makes a prima facie showing of retaliation, the burden shifts to the

employer to state a legitimate, non-retaliatory reason for its decision.108 If the employer

does so, the burden shifts back to the plaintiff to prove the employer’s given reasons are

a pretext for retaliation.109 The plaintiff establishes pretext by showing the adverse action

would not have occurred “but for” the employer’s retaliatory motive.110 At the pretext

stage, the Supreme Court’s decision in University of Texas Southwestern Medical Center

v. Nassar requires more than mere temporal proximity.111 To avoid summary judgment,

a plaintiff must show “a conflict in substantial evidence” on the question of whether the

employer would not have taken the action “but for” the protected activity.112

In this case, Plaintiff reported one instance of sexual assault and filed an EEOC

charge. An employee engages in a protected activity if she opposes any unlawful

employment practice, or makes a charge, testifies, assists, or participates in any manner

in an investigation, proceeding, or hearing under Title VII.113 Plaintiff engaged in a

protected activity by complaining of sexual harassment and making an EEOC filing.

Plaintiff alleges adverse employment action was taken against her through changes

in her scheduling and her eventual termination.114 “An adverse employment action is one

that ‘a reasonable employee would have found … [to be] materially adverse,’ which in this

107 Feist v. La. Dep’t of Justice, 730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy v. City of Shreveport, 492

F.3d 551, 556-57 (5th Cir. 2007)).

108 Id. (quoting LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007)).

109 Id.

110 Id. (citing Univ. of Tex. Sw. Med. Ctr. V. Nassar, 133 S. Ct. 2517 (2013)).

111 Univ. of Tex. Sw. Med. Ctr. V. Nassar, 133 S. Ct. 2517, 2533 (2013).

112 Hague v. Univ. of Tex. Health Sci. Ctr. At San Antonio, 560 Fed. Appx. 328, 333 (5th Cir. 2014) (citing

Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996) (internal quotation marks omitted))

113 42 U.S.C § 2000e-3(a).

114 R. Doc. 1-1 at ¶ 30-31.

context means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.”115 In this case, Plaintiff’s alleged termination of

employment is materially adverse, because termination would likely dissuade a

reasonable worker from reporting sexual harassment.

A causal link between the adverse employment action and the protected activity

can be satisfied “simply by showing close enough timing between [the] protected activity

and [the] adverse employment action.”116 Nassar’s heightened but-for causation

requirement applies only in the pretext stage of the McDonnell Douglas analysis and is

not a required element of a prima facie case.117 “At the prima facie case, a plaintiff can

meet his burden of causation simply by showing close enough timing between his

protected activity and his adverse employment action.”118 In Garcia v. Professional

Contract Services, Incorporated, the Fifth Circuit held that two and a half months

between the protected activity and adverse employment action was close enough.119 In

this case, Plaintiff alleges she was subject to an incident of sexual harassment on June 5,

2018.120 In her response to the Defendant’s statement of undisputed material facts,

Plaintiff states she reported the incident to Ms. Herbert on June 11, 2018,121 and Assad

was terminated on June 12, 2008.122 Plaintiff alleges her employment was terminated on

July 9, 2018.123 Less than a month passed between Plaintiff reporting the incident of

115 Hernandez v. Yellow Transp. Inc., 670 F.3d 644, 657 (5th Cir. 2012) (quoting Aryain v. Wal-Mart Stores

Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008)).

116 Abbood v. Texas Health and Human Services Comm., 783 Fed. Appx. 459 (5th Cir. 2019) (citing Garcia

v. Professional Contract Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019)).

117 Garcia v. Professional Contract Services, Inc., 938 F.3d 236, 243 (5th Cir. 2019).

118 Id.

119 Id.

120 R. Doc. 1-1 at ¶ 14.

121 R. Doc. 67-1 at ¶ 12.

122 R. Doc. 1-1 at ¶ 20.

123 Id. at ¶ 30.

sexual assault and Plaintiff’s alleged firing. Further, Plaintiff alleges scheduling changes

and harsh behavior from supervisors began shortly after she reported the incidence of

sexual assault.124 The proximity between the Plaintiff’s report of sexual harassment,

changes to her schedule, and her alleged termination establish the causal element of a

prima facie case of retaliation.

Because Plaintiff established a prima facie case, the burden shifts to the employer.

“The employer’s burden is only one of production, not persuasion, and involves no

credibility assessment.”125 The defendant must articulate a legitimate, nondiscriminatory,

or nonretaliatory reason for its employment action.126 In this case, Defendant articulates

Plaintiff’s schedule changes were based on neutral factors, such as lack of manpower, an

effort to meet the client’s needs, and the importance of all guards being familiar with all

posts.127 Defendant represents there was a lack of manpower which necessitated schedule

changes because an officer quit during that week.128 In regard to Plaintiff’s termination,

Defendant represents Plaintiff was not terminated, but instead, she quit.129 Defendant

further notes that, even if Defendant had terminated Plaintiff’s employment, Plaintiff’s

failure to work her shift July 5th, 7th, and 8th, in addition to Plaintiff’s allegedly

aggressive behavior in her July 9th meeting with Ms. Herbert and Mr. Labeaud (shift

supervisor), are legitimate non-retaliatory reasons for its employment action.130

Defendant articulated neutral reasons for employment actions taken against Plaintiff and

accordingly met its burden of production.

124 Id. at ¶ 22.

125 McCoy v. Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).

126 Id.

127 R. Doc. 52-2 at 23.

128 R. Doc. 52-3.

129 Id.

130 R. Doc. 69 at 4-5.

“[O]nce the employer offers a legitimate, nondiscriminatory reason … the plaintiff

must offer some evidence from which the jury may infer that retaliation was the real

motive.”131 To survive summary judgment, Plaintiff “must show a conflict in substantial

evidence” on the question of whether Defendant would not have terminated her

employment “but for” the protected activity.132 In Wallace v. Seton Family Hospitals, the

Fifth Circuit held an employer’s shifting explanations for firing plaintiff, the suspicious

temporal proximity between plaintiff’s protected activity and termination, as well as

evidence plaintiff was disciplined differently from other employees, was sufficient

evidence of pretext.133

In this case, Plaintiff has shown “a conflict in substantial evidence” on multiple

issues that may lead a jury to believe the Defendant’s motive was retaliation. First, in

regard to changes to Plaintiff’s work schedule, Defendant asserts guards are moved

around posts and their schedules at each post vary.134 Plaintiff disputes this, stating that

the schedules at various posts varied slightly from week to week, but the weekly schedules

tended to be similar.135 Second, there is a dispute as to whether the schedule emailed on

June 16 was intended to be the schedule for the rest of the year.136 Defendant states guard

schedules are issued one week in advance but schedules can change at any time.137

Plaintiff argues this is normally true, but offers an email received by all guards on June

16, 2018 stating the schedule attached would be the schedule for the remainder of the

131 McCoy v. Shreveport, 492 F.3d 551, 562 (5th Cir. 2007).

132 Abbood v. Texas Health and Human Services Comm., 783 Fed. Appx. 459, 463 (5th Cir. 2019) (citing

Feist v. La. Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (internal quotations

omitted)).

133 Wallace v. Seton Family of Hosps., 777 F. Appx. 83, 93 (5th Cir. 2019).

134 R. Doc. 52-1 at ¶ 3.

135 R. Doc. 67-1 at ¶ 3.

136 R. Doc. 52-1 at ¶ 6; R. Doc. 67-1 at ¶ 6.

137 R. Doc. 52-1 at ¶ 6.

year.138 Third, it is disputed whether Plaintiff worked three overnight shifts two weeks

after the incident of sexual harassment.139 Defendant states Plaintiff worked three

overnight shifts following the incident, while Plaintiff denied in her deposition working

the overnight shifts Defendant attributed to her.140 Fourth, it is disputed whether Plaintiff

quit or was terminated. Plaintiff argues that her employment was terminated,141 while

Defendant maintains Plaintiff quit.142

Finally, it is disputed whether lack of manpower was the reason for not accepting

Plaintiff’s call-offs. Defendant offers Ms. Herbert’s deposition in which Ms. Herbert

testified that someone quit or was terminated the week of July 4, 2018, causing Defendant

to be short-staffed and resulting in a lack of man power.143 Plaintiff argues that Ms.

Herbert in her deposition testified she believed Defendant was fully staffed. Additionally,

Plaintiff provided a chart of guards employed between March 1, 2018, to July 31, 2018 to

show that a sufficient number of guards were employed during the time Defendant claims

the company was suffering a lack of manpower.144

On all the above issues, Plaintiff has shown a conflict in substantial evidence.

Further, if Plaintiff’s position is proven, it is possible a jury may infer retaliation was the

real motive for Plaintiff’s alleged schedule changes and her termination. Accordingly,

Defendant’s motion for summary judgment is denied on Plaintiff’s claim of retaliation

under Title VII.

138 R. Doc. 67-1 at ¶ 6; R. Doc. 67-7 at 93.

139 R. Doc. 52-1 at ¶ 14; R. Doc. 67-1 at ¶ 14.

140 R. Doc. 52-1 at ¶ 14; R. Doc. 67-1 at ¶ 14.

141 R. Doc. 1-1 at ¶ 30.

142 R. Doc. 52-2 at 6-7.

143 R. Doc. 69 at 3; R. Doc. 52-3 at 23.

144 R. Doc. 67 at 17; R. Doc. 67-5 at 20.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that the motion for summary

judgment filed by Defendant Culpepper and Associates Security Services, Inc, be and

hereby is GRANTED IN PART AND DENIED IN PART.

Summary judgment is DENIED with respect to Plaintiffs Title VII claim based on

retaliation and her Title VII claims based on sexual harassment and hostile work

environment.

Summary judgment is GRANTED in favor of Defendant against Plaintiff with

respect to Plaintiffs ADA claim for failure to exhaust.

New Orleans, Louisiana, this 28th day of August, 2020.

SUSIE song

UNITED STATES DISTRICT JUDGE

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