Wilkerson v. Parish of Jefferson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DOMINIQUE K. WILKERSON CIVIL ACTION

VERSUS No. 20-3031

PARISH OF JEFFERSON, ET AL. SECTION I

ORDER & REASONS

Defendant, Parish of Jefferson (“Jefferson Parish”), has filed a motion1 for

summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff,

Dominique K. Wilkerson (“Wilkerson”), opposes the motion,2 and Jefferson Parish

replied.3 Jefferson Parish has also filed a motion4 in limine to exclude or limit certain

testimony and exhibits at trial. For the following reasons, the Court grants summary

judgment in favor of Jefferson Parish on all of Wilkerson’s remaining claims, i.e. her

Title VII discrimination and retaliation claims, her parallel Louisiana state law

claims, and her race discrimination claim brought pursuant to 28 U.S.C. § 1981. The

Court dismisses Jefferson Parish’s motion in limine as moot.

I. BACKGROUND

Wilkerson worked for the Jefferson Parish Department of Juvenile Services

(“DJS”) from August 31, 2019 through February 19, 2020 as a supervisor at the

1 R. Doc. No. 60.

2 R. Doc. No. 62.

3 R. Doc. No. 68.

4 R. Doc. No. 69.

Rivarde Juvenile Detention Center (“Rivarde”).5 Wilkerson was classified as a

probationary employee throughout her time working at DJS.6

When Wilkerson applied to work at DJS, Assistant Director Christopher

Trosclair (“Trosclair”) conducted her first interview.7 Trosclair recommended

Wilkerson to Director Roy Juncker (“Juncker”), the appointing authority who was

ultimately responsible for making employment decisions.8 Juncker interviewed

Wilkerson and selected her for the position.9

Wilkerson received supervisor training with DJS, which included shadowing

other supervisors and senior staff members.10 Wilkerson was eventually assigned to

work the night shift from midnight to 8:00 A.M.11 On January 11, 2020, Wilkerson

5 R. Doc. No. 60-2, at 1 ¶ 1. The Court confines its analysis to the facts presented by

the parties in the summary judgment statement of material facts, see R. Doc. No. 60-

2, Wilkerson’s objections thereto, see R. Doc. No. 62-23, and the briefing, see R. Doc.

Nos. 60-1, 62, & 64-2. See Local Rule 56.2; see also Smith v. United States, 391 F.3d

621, 625 (5th Cir. 2004) (explaining that parties should include specific citations to

summary judgment evidence); United States v. Del Carpio Frescas, 932 F.3d 324, 331

(5th Cir. 2019) (“Judges are not like pigs, hunting for truffles buried in the record.”)

(quotation marks and citation omitted). Throughout this order, the citations to the

summary judgment record reference the page numbers assigned by the Court’s

CM/ECF filing system, not the underlying page numbers of the deposition or exhibit

documents.

6 Id. at ¶ 2.

7 Id. at 2 ¶ 4.

8 Id.

9 Id. In addition to being Assistant Director, Trosclair was also acting as a manager

at the Rivarde facility when Wilkerson began her employment. Id. ¶ 5.

10 Id. at 3 ¶ 9. However, Wilkerson did not receive the full amount of her training,

and her opportunities to shadow other supervisors on the day shift were limited. R.

Doc. No. 62-23, at 2.

11 R. Doc. No. 60-4, at 108. Wilkerson alleges several other proposed facts in the

background section of her opposition memorandum. See R. Doc. No. 62, at 1–2.

However, these proposed facts cite exclusively to her complaint. Id. (citing R. Doc.

No. 1). This approach is insufficient to oppose a motion for summary judgment.

emailed Trosclair that she had given Detention Officer Daniell Bailey (“Bailey”) two

verbal warnings for sleeping on the job.12 Trosclair responded that “sleeping on the

job will not be tolerated on any level,” and he requested that Wilkerson detail “the

times and dates” of each instance that Wilkerson caught Bailey sleeping.13 In

subsequent emails, Wilkerson conceded that she did not know “the exact days” that

she reprimanded Bailey, and Trosclair reminded Wilkerson of her duty to document

verbal warnings, “especially for something so serious [as sleeping].”14

On January 13, 2020, Trosclair made a surprise visit to Rivarde at 3:00 A.M.,

at which time Wilkerson and Brishawna Silby (“Silby”), were both on duty as

supervisors.15 Trosclair stated that during this surprise visit, he observed Silby

sleeping in the supervisor’s office where Wilkerson was also working.16 In a written

statement, Silby claimed that she “may have dozed off while reading something at

my desk but [she] did not fall asleep.”17

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding that the party

responding to a motion for summary judgment may not rest upon the pleadings but

must identify specific facts that establish a genuine issue). The parties do not dispute

that Wilkerson was assigned to work the night shift.

12 R. Doc. No. 60-2, at 3 ¶ 10. See also R. Doc. No. 62-17, at 8. The deposition

testimony usually refers to Bailey by her last name only. The hand-written statement

that she provided is difficult to read, but it appears that her first name is spelled

“Daniell.” See R. Doc. No. 60-5, at 177. The typed transcript also spells her first

name as “Daniell.” Id. at 146.

13 R. Doc. No. 62-17, at 8.

14 Id. at 6–7.

15 R. Doc. No. 60-2, at 3 ¶ 10.

16 R. Doc. No. 60-2, at 3 ¶ 11.

17 Id.

That same evening, when Wilkerson and Silby were on duty as supervisors,

Trosclair also caught two detention officers sleeping: Bailey and Jacqueline Taylor

(“Taylor”).18 Bailey admitted to sleeping in a written statement, stating that she

appeared “to have fallen asleep.”19 Taylor also admitted to sleeping in a written

statement, stating that she was “dozing off to sleep.”20

On January 21, 2020, Juncker completed a form to extend Wilkerson’s

probationary period to August 2020.21 Juncker, as the appointing authority, was

responsible for ensuring that Wilkerson was aware of her probationary extension, but

he did not discuss the extension directly with her or provide her with a copy of the

extension form.22

On February 11, 2020, Trosclair completed Wilkerson’s probationary employee

performance evaluation.23 Trosclair rated Wilkerson’s performance as “below

expectations,” the lowest rating available.24 Wilkerson received a “zero” rating in the

safety category on her evaluation due to what Trosclair observed during the January

13, 2020 surprise visit, including that Trosclair caught Bailey and Taylor, Wilkerson’s

18 Id. at ¶ 12. Jefferson Parish’s statement of material facts does not specify the first

name of officer Taylor. Id. The cited portion of the deposition transcript indicates

that her full name is “Jacklyn Taylor.” See R. Doc. No. 60-5, at 147. But the Court

presumes her first name is spelled “Jacqueline” based on her handwritten statement.

Id. at 179.

19 Id. at ¶ 13.

20 Id. at 4 ¶ 14.

21 R. Doc. No. 62-22.

22 R. Doc. No. 60-3, at 17–18.

23 R. Doc. No. 60-2, at 4 ¶ 15.

24 Id.

subordinates, asleep.25 The evaluation also noted that the cameras showed that

Wilkerson did not make her first supervisory round until approximately 4:20 A.M.,

though she arrived at 11:56 P.M.26 The evaluation further noted that the other

overnight supervisor, Silby, stated that Wilkerson regularly sleeps on duty during at

least one of three shifts they work together.27

Trosclair indicated on the performance evaluation form that “[a]lert and

vigilant supervision of both staff and residents is needed in order to ensure that all

are kept safe,” and that “due to the lack of proper supervision on the part of this

overnight supervisor [a detention officer] slept for significant periods of time[.]”28

Under Jefferson Parish policy, neither detention officers nor supervisors are allowed

25 Id. at ¶ 16.

26 Id. Wilkerson objects to the accuracy of the evaluation with respect to when she

performed her first round on the night of January 13, 2020. R. Doc. No. 62-23, at 2.

Specifically, Wilkerson states that she performed her first round when she arrived at

work that evening. Id. See also R. Doc. No. 60-4 (Wilkerson deposition transcript),

at 78 (noting that Wilkerson performed her rounds “as soon as [she] got there” around

midnight). On summary judgment, the Court is bound to credit Wilkerson’s

testimony. Anderson, 477 U.S. at 255. However, even though Wilkerson states that

she performed her rounds as soon as she arrived, Trosclair’s commentary in her

evaluation does state that “[t]he cameras that evening showed that the employee did

not make her first supervisory round until approximately 4:20 am, though she arrived

for work at 11:56 pm that night.” R. Doc. No. 60-3, at 149.

As part of her opposition to Jefferson Parish’s motion for summary judgment,

Wilkerson submitted, labeled as Exhibit G, the audio recording of her pre-disciplinary

hearing (“Exhibit G”). See R. Doc. No. 62-1 (notice of manual submission). During

that hearing, when questioned about her rounds, Wilkerson answers, “[w]e might not

have done that many rounds. I’ll take my lick.” See Exhibit G at 15:29 (on file with

the Court). The Court accepts Wilkerson’s later deposition testimony as the truth,

but it discusses her pre-disciplinary hearing statement below.

27 R. Doc. No. 60-2, at 4 ¶ 16.

28 Id. at ¶ 17. See also R. Doc. No. 60-3, at 149.

to sleep on the job.29 Further, Wilkerson conceded that performing rounds is

necessary for the safety of the juveniles and to set an example for employees as a

supervisor.30 The evaluation also notes that Wilkerson “failed to document properly

incidents and decisions related to an employee that [Wilkerson] caught sleeping on

duty multiple times.”31

On February 11, 2020, Wilkerson received correspondence from Juncker

setting a pre-disciplinary hearing for February 13, 2020 as a result of her “below

expectations” evaluation.32 Following her performance evaluation and receipt of the

notice for her pre-disciplinary hearing, on February 12, 2020, Wilkerson completed

an employee grievance form regarding Trosclair.33

On February 13, 2020, Wilkerson attended her pre-disciplinary hearing in

which Juncker discussed Wilkerson’s performance evaluation with her.34 On

February 17, 2020, Wilkerson sent an email to Juncker in which she offered

additional information about the instances discussed in her performance review,

29 R. Doc. No. 60-2, at 5 ¶ 20.

30 Id. at 4 ¶ 18.

31 R. Doc. No. 60-3, at 146. Wilkerson’s performance evaluation also describes

problems with Wilkerson staying organized, documenting incidents properly, making

sound decisions as a supervisor, and being a consistent leader. R. Doc. No. 60-2, at 5

¶ 19.

32 R. Doc. No. 60-2 at 5 ¶ 21.

33 Id. at ¶ 22.

34 Id. ¶ 23. Wilkerson submits that she was repeatedly interrupted and not permitted

to respond during her pre-disciplinary hearing. R. Doc. No. 62-23, at 3. Wilkerson

references the hearing audio “in globo,” without citing to specific instances. Id. After

listening to the entire audio recording, the Court credits Wilkerson that at certain

times, Juncker does talk over Wilkerson as she is providing responses.

including how often she made rounds.35 In this email, Wilkerson stated that Trosclair

is “arrogant, egotistical, and very disrespectful […] especially pertaining to women.”36

Wilkerson further stated that Trosclair treats her and Silby “differently than he

[treats] our supposed to be equal male supervisors.”37 On February 18, 2020, Juncker

made the decision to terminate Wilkerson’s probationary employment effective the

next day, February 19, 2020.38

In her amended complaint,39 Wilkerson files claims for sex and race

discrimination and retaliation against Jefferson Parish pursuant to Title VII of the

Civil Rights Act of 1964 as well as the Louisiana Employment Discrimination Law

(“LEDL”), La. R.S. 23:301, et seq. Wilkerson also asserts a claim for race

discrimination pursuant to 42 U.S.C. § 1981.40

35 R. Doc. No. 60-3, at 161–163.

36 Id. at 163.

37 Id.

38 R. Doc. No. 60-2, at 5 ¶ 24. In a termination letter dated February 19, 2020,

Juncker advised Wilkerson that he concurred with the ratings contained in her

evaluation, which identified several problems in the categories of “safety,”

“communications,” “decision making,” and “supervision and management.” R. Doc.

No. 60-3, at 145–147. Ultimately, Juncker wrote that Wilkerson’s performance was

“below expectations,” and that she “was unable or unwilling to perform [her] duties

satisfactorily,” which warranted termination. Id. at 147.

39 R. Doc. No. 33.

40 All claims against Juncker and Trosclair were previously dismissed by this Court.

See R. Doc. No. 43. See also Bellue v. Gautreaux, 782 F. App’x 350, 351 (5th Cir. 2019)

(“Title VII does not extend even to a public official sued in his official capacity.”); Ackel

v. Nat’l Commc’ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003) (“Individuals are not

liable under Title VII in either their individual or official capacities.”).

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when, after reviewing the pleadings, the

discovery and disclosure materials on file, and any affidavits, a court determines that

there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[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.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not

produce evidence negating the existence of a material fact; it need only point out the

absence of evidence supporting the other party’s case. Id.; see also Fontenot v. Upjohn

Co., 780 F.2d 1190, 1195–96 (5th Cir. 1986) (“There is no sound reason why conclusory

allegations should suffice to require a trial when there is no evidence to support them

even if the movant lacks contrary evidence.”).

Once the party seeking summary judgment carries that burden, the

nonmoving party must come forward with specific facts showing that there is a

genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by

creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence[.]”

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

Rather, a genuine issue of material fact exists when the “evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.

at 248.

“Although the substance or content of the evidence submitted to support or

dispute a fact on summary judgment must be admissible . . . the material may be

presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore

Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).

The party responding to the motion for summary judgment may not rest upon the

pleadings but must identify specific facts that establish a genuine issue. See

Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be

believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]

favor.” Id. at 255.

III. LAW AND ANALYSIS

As stated, Wilkerson argues three claims under Title VII against Jefferson

Parish: discrimination based on her sex41 and race,42 and retaliation.43 Wilkerson

also argues parallel state law claims44 under the LEDL and a claim for race

discrimination pursuant to 42 U.S.C. § 1981.45 The Court addresses each claim in

turn.

41 R. Doc. No. 33, at 15 (“Count 2 […] Disparate Treatment – Gender”).

42 Id. at 16 (“Count 3 […] Disparate Treatment – Race”).

43 Id. at 17 (“Count 4 […] Retaliation”).

44 Id. at 18 (“Count 5 State Law Discrimination based on Race and Gender and

Retaliation”).

45 Id. at 14 (“Count 1 Violation of 42 U.S.C. §1981 and 1983”).

A. Title VII Sex Discrimination Claim46

Wilkerson argues that, by terminating her employment in February 2020,

Jefferson Parish engaged in gender discrimination made unlawful under Title VII.

Jefferson Parish argues, and Wilkerson tacitly concedes,47 that the McDonnell

Douglas burden-shifting analysis applies to Wilkerson’s claims. See McDonnell

Douglas Co. v. Green, 411 U.S. 792 (1973).

When there is no direct evidence of discrimination, as in this case, courts apply

the burden-shifting test established by McDonnell Douglas to determine whether an

employer is liable for employment discrimination under Title VII. See Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (explaining that

McDonnell Douglas and subsequent decisions have “established an allocation of the

burden of production and an order for the presentation of proof in ... discriminatory-

treatment cases.”).

Under this framework, the plaintiff must first establish a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds, the

46 Wilkerson filed two distinct Title VII claims: one for sex discrimination and one for

race discrimination. The Court addresses her race discrimination claim below.

However, because both Wilkerson and Jefferson Parish present concurrent

arguments with respect to Wilkerson’s sex and race discrimination claims, the Court

notes some details here that are relevant to its race discrimination analysis.

47 R. Doc. No. 60-1, at 10. See also R. Doc. No. 62, at 4–22. Although Wilkerson does

not expressly concede that the McDonnell Douglas framework applies, id., nowhere

in her opposition does she argue that direct evidence of discrimination exists in this

case. Her entire argument is patterned on the McDonnell Douglas framework.

Moreover, Wilkerson presents her sex and race discrimination arguments together.

Id. at 4 (“Race and Sex Discrimination Claims”). Wilkerson does not argue that the

analysis differs in any way for these two claims.

burden then shifts to the employer to articulate a legitimate, nondiscriminatory

reason for its actions. Id. Finally, if the employer offers such a justification, the

plaintiff must demonstrate that the defendant’s proffered reason is merely a pretext

for discrimination. Id. at 804. Ultimately, the burden of persuasion that the

defendant intentionally discriminated against the plaintiff remains at all times with

the plaintiff. Black v. Pan Am. Labs., LLC, 646 F.3d 254, 259 (5th Cir. 2011) (“The

employer’s burden is one of production, not persuasion, and does not involve a

credibility assessment.”).

1. Wilkerson fails to show a prima facie case of sex discrimination.

To survive summary judgment on her sex discrimination claim, Wilkerson

must put forth sufficient evidence to make a prima facie case that (1) she is a member

of a protected class; (2) she was qualified for the position at issue; (3) she was

discharged or suffered some adverse employment action by the employer; and (4) she

was treated less favorably than—or was replaced by—other similarly situated

employees outside the protected group. See McCoy v. City of Shreveport, 492 F.3d

551, 556 (5th Cir. 2007).

The parties agree that Wilkerson, a female, is a member of a protected class.48

Jefferson Parish does not dispute that Wilkerson was qualified for her position at

Rivarde.49 Further, Jefferson Parish does not contest that her termination was an

48 R. Doc. No. 60-1, at 11.

49 Id.

adverse employment action.50 However, Jefferson Parish does argue that Wilkerson

cannot demonstrate a prima facie case of discrimination based on the fourth element

noted above.51

(a) Wilkerson’s position was filled by another employee who

shares her protected characteristics.

Jefferson Parish submits that, following Wilkerson’s termination, Juncker

filled her vacant position with another African-American woman, Katina Bills

(“Bills”).52 Juncker, the appointing official responsible for hiring and firing

employees, directly testified in his deposition that he filled Wilkerson’s position with

Bills and that she is excelling in that role.53 Wilkerson responds that Eric Vicks

(“Vicks”) and Kynan Davis (“Davis”), two men, are the supervisors who now work the

night shift to which she was previously assigned.54 Wilkerson argues that the

assignment of Wilkerson’s shift to two men presents a genuine issue of material fact

as to whether Wilkerson was replaced by Bills or Vicks and Davis.55 Jefferson Parish

50 Id. Wilkerson’s opposition focuses exclusively on her termination as the adverse

employment action for this analysis. R. Doc. No. 62, at 5 n.10 (citing to Jefferson

Parish’s concession that Wilkerson “suffered an adverse employment action through

her termination”), 15 (discussing “whether Wilkerson was fired because of her race

and/or sex”).

51 Id.

52 Id. (citing R. Doc. No. 60-3 (Juncker Deposition) at 131).

53 R. Doc. No. 60-3, 130–131.

54 R. Doc. No. 62, at 6.

55 Id. Wilkerson also points to Wilkerson’s co-worker Silby who was demoted from

supervisor to detention officer before Bills was promoted to supervisor. Id. at 5.

Wilkerson emphasizes the testimony of manager Ralph Sacks (“Sacks”) that Bills was

a detention officer in December 2019 and then was promoted “to the same supervisor

position as Wilkerson.” Id. It is not apparent how Sack’s testimony could create a

genuine issue of material fact when it corroborates Juncker’s testimony that Bills was

replies that Wilkerson fails to present affirmative evidence challenging Juncker’s

testimony that Bills filled Wilkerson’s open position after Wilkerson’s departure.56

Based on the summary judgment record, the identity of the person who took

Wilkerson’s vacant position is a simple question of fact. Jefferson Parish offers

testimony from Juncker, the appointing official, directly stating that Bills took

Wilkerson’s vacant position.57 Wilkerson offers no evidence that attempts to

affirmatively contradict Juncker’s statement.58 Wilkerson attempts to demonstrate

a genuine issue of material fact by showing that Silby, who held the same rank as

Wilkerson, was demoted between Wilkerson’s termination and Bills’ promotion, and

that two men now work the shift that Wilkerson supervised.59 But Wilkerson’s

evidence is not inconsistent with Juncker’s explanation that Bills took Wilkerson’s

position; nor has Wilkerson shown that she was hired specifically to work the night

shift, or that employees do not rotate among shifts (as Wilkerson did when she was

transferred from the day shift to the night shift).60

Ultimately, Wilkerson has not adduced any evidence that Bills “was not

[Wilkerson’s] true replacement upon discharge, but instead a temporary replacement

to avoid liability” for discrimination. Mehn v. Professional Const. Svcs., Inc., No. 95-

hired to replace Wilkerson. Further, Sacks testifies that Juncker is the appointing

officer responsible for making hiring and firing decisions.

56 R. Doc. No. 64-2, at 5.

57 R. Doc. No. 60-3, at 131–132.

58 R. Doc. No. 62, at 5–6.

59 Id.

60 Id. at 5–6, 8. In her objections to Jefferson Parish’s statement of material facts, see

R. Doc. No. 62-23, Wilkerson specifically notes that she did work on the day shift at

the start of her employment. Id. at 2 (citing R. Doc. No. 60-4, at 55–56).

3125, 1997 WL 10247, at *4 (E.D. La. Jan. 13, 1997) (Clement, J.). Wilkerson at best

creates “‘some metaphysical doubt as to the material facts,’” with “only a ‘scintilla’ of

evidence[.]” Little, 37 F.3d at 1075 (citations omitted). This speculative showing is

insufficient to withstand summary judgment.

(b) Wilkerson fails to identify any similarly situated

employees outside her protected class who were treated

more favorably.

As an alternative argument, Wilkerson presents several co-workers who she

contends are similarly situated employees outside her protected class who received

more favorable treatment than she did.61 Jefferson Parish counters that Wilkerson’s

proposed comparators are not actually similarly-situated.62

Plaintiffs filing Title VII discrimination claims using circumstantial evidence

under McDonnell Douglas, 411 U.S. 792, must “identify at least one coworker outside

of [their] protected class who was treated more favorably ‘under nearly identical

circumstances.’” Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017)

(quoting Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)). This

coworker is known as a “comparator.” Id. A failure to identify a potential comparator

“alone justifies dismissal of [a plaintiff’s] Title VII claim.” Id. at 427. If no such

comparator exists, the plaintiff cannot establish a prima facie case. See id. (holding

that a plaintiff who acknowledged that he was the only employee with a particular

61 R. Doc. No. 62, at 6–15.

62 R. Doc. No. 64-2, at 1–4.

negative performance evaluation and to have been placed on a performance plan

“cannot prove that he was treated less favorably than others ‘similarly situated’”).

“For a comparator to be deemed similarly situated, the employees being

compared should ‘h[o]ld the same job or responsibilities, share[] the same supervisor

or ha[ve] their employment status determined by the same person and have

essentially comparable violation histories.’” Wallace v. Seton Family of Hospitals,

777 F. App’x 83, 87–88 (5th Cir. 2019) (quoting Lee, 574 F.3d at 260) (footnotes

omitted) (alterations in original). Moreover, “the plaintiff’s conduct that drew the

adverse employment decision must have been ‘nearly identical’ to that of the proffered

comparator who allegedly drew dissimilar employment decisions.” Id. (quoting Lee,

574 F.3d at 260 (citation omitted)); see Perez v. Tex. Dep’t of Crim. Justice, 395 F.3d

206, 213 (5th Cir. 2004) (finding that the district court erred by instructing the jury

that “comparably serious misconduct was by itself enough to make employees

similarly situated”). “However, ‘nearly identical’ should not be interpreted to mean

‘identical.’” Wallace, 777 F. App’x at 87–88 (citing Lee, 574 F.3d at 260).

Wilkerson identifies five employees that she contends are similarly situated,

valid comparators: Christopher Bruno (“Bruno”), Lynn Shields (“Shields”), Stanley

LeBlanc (“LeBlanc”), Terrence Dixon (“Dixon”), and Violet Troulliet (“Troulliet”). The

Court addresses each in turn.

On December 23, 2017, Bruno was demoted from the position of manager to

supervisor for failing to respond to complaints made by Kimberly Weber (“Weber”)

about discrimination related to Weber’s race and sexual orientation.63 As a result of

Bruno’s inaction, Jefferson Parish paid a settlement to Weber, and Juncker

considered Bruno’s failures to be “gross work misconduct.”64 On December 13, 2018,

after working almost a year as a supervisor, Juncker rated Bruno’s performance to

be “below expectations.”65 While Bruno received a score of “two” (“meets

expectations”) in a number of categories, including safety, he received a score of “zero”

(“below expectations,” the lowest available rating) in supervision and management.66

Wilkerson first contends that Bruno is similarly situated because he was a

supervisor when he received a “below expectations” evaluation, which was the same

position and rating that Wilkerson received.67 It appears from the parties’ arguments

that Bruno is a Caucasian male,68 and that he is therefore outside Wilkerson’s

protected class. Jefferson Parish counters that Bruno, an employee with decades of

experience who was demoted due to disciplinary reasons, is not the same as

Wilkerson, a six-month employee.69

63 R. Doc. No. 62-6, at 1.

64 Id.

65 R. Doc. No. 62-9, at 8.

66 Id. at 2–4, 8.

67 R. Doc. No. 62, at 8.

68 Wilkerson cites to “Defendants [sic] Supplemental Responses to Discovery,

attached as Exhibit K, a [sic] p. 19.” See R. Doc. No. 62, at 6 n.17. Among the various

documents that Wilkerson submitted, there is not an item labeled “Exhibit K.” Based

on Wilkerson’s other labels, it appears that exhibit K should be R. Doc. No. 62-5, as

this item follows R. Doc. No. 62-4, which is labeled as “Exhibit J.” The cited page in

R. Doc. No. 62-5 does not establish that Bruno is Caucasian. However, Jefferson

Parish does not dispute that assertion in its reply brief. R. Doc. No. 64-2, at 1–2.

69 R. Doc. No. 64-2 at 1–2.

In general, employee seniority is a valid factor that this Court may consider

when distinguishing among employees. See, e.g., California Brewers Ass’n v. Bryant,

444 U.S. 598, 606 (1980) (explaining that Title VII permits seniority systems which

allot “to employees ever improving employment rights and benefits as their relative

lengths of pertinent employment increase.”); AT&T Corp. v. Hulteen, 556 U.S. 701,

708 (2009) (same); Ballou v. Mabey, 124 F. App’x 236, 240 (5th Cir. 2005) (holding

that an employer’s decision not to offer a vacant position to an African-American

employee on the ground that he had least seniority was not pretext for racial

discrimination); Kendall v. Block, 821 F.2d 1142, 1147 (5th Cir. 1987) (stating that

employees at different levels of seniority and at different pay scales are not similarly

situated).

Wilkerson argues that, following Bruno’s demotion for misconduct,70 Bruno

automatically began his new supervisor position for a probationary period under

Jefferson Parish employment rules, just like Wilkerson.71 However, Bruno’s overall

length of employment—25 years—supports the fact that he was not similarly situated

to Wilkerson.72 Moreover, Bruno received a score of “two” (“meets expectations”) for

70 As discussed above, Bruno was a manager—not a supervisor—when he ignored

Weber’s complaints about discrimination. Wilkerson does not present any evidence

that Bruno’s misconduct as a manager relates to a safety issue or permitting

subordinates to sleep while at work. R. Doc. No. 62, at 6–8.

71 Id.

72 R. Doc. No. 60-3, at 100 (“because of [Bruno’s] tenure and many years with this

agency, [Juncker] took all that into consideration” and “that’s why he was not

terminated); id. at 130–131 (stating that Bruno’s 25 years of employment was a factor

in his discipline).

the safety criteria in his 2018 performance evaluation.73 Wilkerson received a score

of “zero” (“below expectations,” the lowest available) in this category.74 In addition to

these different rankings, Juncker identified other factors that distinguished Bruno

and Wilkerson in Juncker’s assessment, including that Bruno was willing to admit

his faults and attempt to correct them while Wilkerson would not, and that Juncker

did not find many of Wilkerson’s statements at the pre-disciplinary hearing to be

credible.75 Bruno is therefore not a similarly situated employee. Wallace, 777 F.

App’x at 87–88.

Wilkerson next identifies Shields, who appears to be a Caucasian female, as a

comparator.76 Wilkerson submits that Shields’ excessive tardiness (seventy-four

times in a calendar year) establishes that she is similarly situated because Shields’

73 R. Doc. No. 62-5, at 5.

74 R. Doc. No. 60-3, at 155. Overall, Bruno ranked higher than Wilkerson in the

categories of “safety” and “communication,” but lower than her in the categories of

“quality of work,” and “reliability.” Compare R. Doc. No. 62-5, at 11 with R. Doc. No.

60-3, at 155. As to the comments for the safety category, Bruno received no criticism.

R. Doc. No. 62-5, at 5. However, Wilkerson’s evaluation stressed that she must be an

attentive supervisor because at night residents “could use the time in their rooms to

hurt or kill themselves.” R. Doc. No. 60-3, at 149. Although the Court does not

consider these performance rankings to be dispositive on their own, these differences

in ranking do weigh against a finding that Bruno and Wilkerson are similarly

situated employees.

75 R. Doc. No. 60-3, at 25, 34–36, 130–131.

76 Wilkerson identifies Shields as “Lynn Shields (WF).” R. Doc. No. 62, at 6.

Wilkerson does not explain what the notation “WF” means. The Court assumes those

letters mean “White Female.” Wilkerson again cites to Exhibit K, but no such exhibit

is included with her summary judgment materials. Jefferson Parish does not appear

to challenge in its reply brief that Shields is a Caucasian female, and the Court

proceeds with its analysis on that premise.

evaluation admonishes that her lack of punctuality “hinders her ability to supervise

her subordinates.”77

Overall, Shields received a “zero” rating—the lowest available—for

attendance, but Wilkerson received a “two”—the highest possible for attendance.

Wilkerson received a “zero” rating for safety while Shields received a “two.”

Wilkerson scored a “one” in communication while Shields received a “three” (“exceeds

expectations”—the highest available for communication). Wilkerson received a “one”

in decision making while Shields received a “two.” Wilkerson received a “zero” in

supervision and management while Shields received a “two.”78 Further, Shields’

evaluation does not allege that she permitted subordinates to sleep during their

shift.79 This difference in ranking across various categories—coupled with the lack

of any allegation that Shields allowed the staff she supervised to sleep on duty—

precludes Wilkerson’s conduct from being “‘nearly identical’ to that of the proffered

comparator who allegedly drew dissimilar employment decisions.” Wallace, 777 F.

App’x at 88. Shields is therefore not a similarly situated employee.

Wilkerson next advances Dixon, an African-American man, and LeBlanc, a

Caucasian man, who she contends received more favorable treatment because they

77 R. Doc. No. 62, at 12–13.

78 Compare R. Doc. No. 60-3, at 155 (Wilkerson final evaluation) with R. Doc. No. 62-

13, at 9 (Shields final evaluation).

79 R. Doc. No. 62-13, at 2–10.

resigned rather than be disciplined for misconduct.80 Wilkerson contends that “[s]uch

leniency was not provided to [her].”81

First, Wilkerson testified that she could have resigned before any discipline

was rendered, but she chose not to do so.82 Next, as to Dixon, Wilkerson has offered

no record evidence supporting her claim.83 Further, LeBlanc was not a probationary

employee like Wilkerson; Juncker testified that “[LeBlanc] was not a probationary

employee. He was a tenured employee.”84 Under Fifth Circuit precedent,

probationary employees are not similarly-situated to permanent or non-probationary

employees. Thomas v. Johnson, 788 F.3d 177, 180 (5th Cir. 2015) (collecting cases).

Lastly, Wilkerson contends that Troulliet received more favorable treatment

because she, in contrast to Wilkerson, “was not disciplined for splitting rounds or for

not performing required rounds.”85 Jefferson Parish emphasizes that Troulliet

“retired from Jefferson Parish on July 31, 2020 after being employed [there] since

November 1997.”86 For the same reasons as mentioned for Bruno and LeBlanc,

Wilkerson is not similarly situated to Troulliet, a non-probationary employee with

decades of experience. Further, Wilkerson was not terminated solely for her failure

80 R. Doc. No. 62, at 13–15.

81 Id. at 14.

82 R. Doc. No. 60-4, at 191.

83 R. Doc. No. 62, at 15, n.48 (citing to “Exhibit K,” which is not included with

Wilkerson’s opposition materials). The Court has reviewed each of Wilkerson’s

exhibits, and it can find no support for the facts that she presents with respect to

Dixon.

84 R. Doc. No. 60-3, at 116.

85 R. Doc. No. 62, at 15.

86 R. Doc. No. 60-1, at 15. See also R. Doc. No. 60-3, at 164. R. Doc. No. 60-8.

to complete rounds; Jefferson Parish offers other performance problems, like

Wilkerson’s failure to document verbal warnings to her subordinates. These

differences preclude Wilkerson and Troulliet from having essentially comparable

violation histories.

Overall, Wilkerson fails to identify a similarly situated employee outside her

protected class who received more favorable treatment. Coupled with her failure to

demonstrate that she was replaced by someone outside her protected class, Wilkerson

cannot establish a prima facie case of sex discrimination. However, even if Wilkerson

could prevail at the prima facie stage, her claim would still fail, as explained below.

2. Jefferson Parish offers legitimate reasons for Wilkerson’s

termination.

If the plaintiff succeeds at establishing a prima facie case of discrimination,

the burden then shifts to the employer to articulate a legitimate, nondiscriminatory

reason for its actions. McDonnell Douglas, 411 U.S. at 802; Black, 646 F.3d at 259

(5th Cir. 2011) (“The employer’s burden is one of production, not persuasion, and does

not involve a credibility assessment.”).

Jefferson Parish offers Wilkerson’s “well-documented performance issues

during her probationary period.”87 Jefferson Parish specifies that Trosclair observed

detention officers sleeping on the night shift when Wilkerson was on duty, and that

this incident contributed to Wilkerson’s “below expectations” performance rating.88

Juncker ultimately cited this reason, among others, as justification in Wilkerson’s

87 R. Doc. No. 60-1, at 18.

88 Id. at 19.

termination letter.89 This explanation offers legitimate, non-discriminatory reasons

for Wilkerson’s termination.

3. Wilkerson does not present sufficient evidence of pretext.

“Once [Jefferson Parish] produces a legitimate, non-discriminatory reason for

firing [Wilkerson], the presumption of discrimination disappears and [Wilkerson]

‘bears the ultimate burden of persuading the trier of fact by a preponderance of the

evidence that [Jefferson Parish] intentionally discriminated against her because of

her protected status.’” Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011)

(quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001)). “To do

so, [Wilkerson] ‘must put forward evidence rebutting each of the nondiscriminatory

reasons [Jefferson Parish] articulates.’” Id. (quoting Wallace, 271 F.3d at 220).

“[Wilkerson] may use two alternative methods to show that there is a genuine issue

of material fact as to whether she was fired because of her [sex]: pretext and mixed-

motive.” Id. (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).90

“A plaintiff may establish pretext either through evidence of disparate

treatment or by showing that the employer’s proffered explanation is false or

‘unworthy of credence.’” Thomas, 788 F.3d at 179 (quoting Laxton v. Gap Inc., 333

F.3d 572, 578 (5th Cir.2003)). Wilkerson raises both lines of argument.

89 R. Doc. No. 60-3, at 145–147.

90 Wilkerson cites to Vaughn, 655 F.3d at 637, for the proposition that she may

present a pretext or mixed-motive theory. R. Doc. No. 62, at 15. However,

Wilkerson’s entire argument attempts to demonstrate that Jefferson Parish’s

“proffered explanation is false or unworthy of credence.” Id. at 22. Accordingly,

Wilkerson does not present a mixed-motive argument, and the Court need not

analyze that approach here.

(a) Wilkerson has not demonstrated disparate treatment

because Bruno is not a similarly situated employee.

Wilkerson mainly attacks Jefferson Parish’s stated reasons for her

termination, but she also contends that Bruno, an employee with “decades of

experience,” failed to properly complete a report and that he was permitted to retake

additional training when he scored a “one” in the decision-making field on his

performance review.91

In the context of a pretext analysis, “[d]isparate treatment occurs where an

employer treats one employee more harshly than other ‘similarly situated’ employees

for ‘nearly identical’ conduct.” Vaughn, 665 F.3d at 637 (quoting Lee v. Kansas City

S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009)). To succeed under this theory, the

proffered employees must be appropriate comparators. Id.; see also Lee, 574 F.3d at

259–260 (providing that employees with different supervisors, different work

responsibilities, or dissimilar violations are generally inappropriate comparators).

As the Court discussed in connection with Wilkerson’s prima facie case of

discrimination, see Section III(A)(1)(b) above, Bruno is not a similarly situated

employee. Bruno has decades more experience with Jefferson Parish than Wilkerson,

and his conduct did not include an allegation of permitting subordinates to sleep on

the job. For these same reasons, Wilkerson cannot establish pretext by relying on a

theory of disparate treatment via Bruno.

91 R. Doc. No. 62, at 20.

(b) Wilkerson has not demonstrated that Jefferson Parish’s

proffered explanation is false or unworthy of credence.

The crux of Wilkerson’s pretext argument is that Jefferson Parish’s “proffered

explanation is false or unworthy of credence.”92 “If the employer offers more than one

[nondiscriminatory] reason [for the adverse employment action], the plaintiff ‘must

put forward evidence rebutting each of the nondiscriminatory reasons the employer

articulates.’” Jones v. Gulf Coast Restaurant Group, Inc., 8 F.4th 363, 368 (5th Cir.

2021) (quoting Wallace v. Methodist Hops. Sys., 271 F.3d 212, 220 (5th Cir. 2001))

(emphasis added in Jones). “What’s more, the plaintiff must produce ‘substantial

evidence’ of pretext.” Id. at 369. (quoting Wallace, 271 F.3d at 220). “The quality and

weight of the evidence determines whether it is substantial.” Id. “In deciding

whether summary judgment is warranted, a court should consider, among other

things, ‘the probative value of the proof that the employer’s explanation is false’ and

‘any ... evidence that supports the employer’s case.’” Id. (quoting Brown v. Wal-Mart

Stores East, L.P., 969 F.3d 571, 577–78 (5th Cir. 2020), and Harville v. City of

Houston, Mississippi, 945 F.3d 870, 878–879 (5th Cir. 2019)).

Lastly, an employee cannot merely contest the accuracy of an employer’s

perception of poor employee performance to avoid summary judgment. See Thomas,

788 F.3d at 179; see also Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th

Cir. 1995) (“The question is not whether an employer made an erroneous decision; it

is whether the decision was made with discriminatory motive.”); Waggoner v. City of

92 R. Doc. No. 62, at 22.

Garland, Tex., 987 F.2d 1160, 1166 (5th Cir. 1993) (holding that, to the extent a

plaintiff’s summary judgment evidence relates to his innocence of an accusation, such

evidence is “irrelevant. He must, instead, produce evidence demonstrating that [the

employer] did not in good faith believe the allegations, but relied on them in a bad

faith pretext to discriminate”).

Wilkerson enumerates several reasons allegedly supporting her argument that

her performance evaluation is inaccurate, but she does not actually address each

reason that Jefferson Parish includes in her termination letter.93 Wilkerson states

that she performed a round at the Rivard facility as soon as she arrived for her

January 13, 2020 shift; that Silby was not asleep in the office with Wilkerson during

that shift and that Wilkerson “dozes,” but she does not in fact sleep on duty.94

However, Wilkerson has offered no evidence disputing the fact that she failed to

ensure that the employees she supervised were not sleeping on the job.95 The record

evidence demonstrates that two employees, Bailey and Taylor, were sleeping when

Wilkerson was on duty as their supervisor.96 As Juncker restates in Wilkerson’s

termination letter, “[a]s one of two supervisors assigned to the overnight shift,”

Wilkerson needed to ensure “alert and vigilant supervision of both staff and

93 R. Doc. No. 62, at 17–22.

94 Id. at 17–19.

95 Id.

96 R. Doc. No. 60-5 at 177 (hand-written statement of Daniell Bailey, conceding that

“I appear to have fallin [sic] asleep.”), & 178 (hand-written statement of Jacqueline

Taylor, conceding that her medication may have been “a factor in my dozing off to

sleep.”).

residents.”97 Wilkerson fails to offer any evidence, let alone substantial evidence, that

this reason is unworthy of credence. Jones, 8 F.4th at 368.

Further, Wilkerson testified in her deposition that she did actually perform a

supervisory round when she arrived for her shift on the morning of January 13,

2020.98 But during her pre-disciplinary hearing, Wilkerson did not explain that fact

to Juncker. Instead, she conceded that “[w]e might not have done that many rounds.

I’ll take my lick.”99

Next, Wilkerson’s termination letter adopted Trosclair’s criticism that

Wilkerson “failed to document properly incidents and decisions related to an

employee that [Wilkerson] caught sleeping on duty multiple times between November

2019 and January 2020.”100 To rebut this reason, Wilkerson argues that she

“provided several emails to Trosclair concerning the issues she had with Bailey and

97 R. Doc. No. 60-3, at 146 (emphasis added).

98 R. Doc. No. 62-23, at 2.

99 See Exhibit G at 15:29 (on file with the Court). Wilkerson offers no evidence that

Juncker relied on her admission, even if it was incorrect, as a bad faith excuse to

justify discrimination. Thomas, 788 F.3d at 179; Mayberry, 55 F.3d at 1091;

Waggoner, 987 F.2d at 1166.

Similarly, Wilkerson’s termination letter states that, during the pre-disciplinary

hearing, she “admitted that [she] doze[s], but [she] bring[s] [her] personal laptop to

work and [she] do[es] homework to stay awake. [Wilkerson] further affirmed that

dozing and sleeping are not the same.” R. Doc. No. 60-3, at 145. In her deposition

testimony, Wilkerson maintained that she did not sleep on the job, but that “dozing”

is “a long-term glaze […] almost like microsleep.” R. Doc. No. 60-4, at 260. In the

pre-disciplinary hearing, Juncker found Wilkerson to be “deceptive in her responses,”

and Wilkerson’s explanation “just didn’t make any sense.” R. Doc. No. 60-3, at 35–

36. Even if Juncker’s assessment was erroneous, Wilkerson has not provided

evidence that his “decision was made with a discriminatory motive.” Mayberry, 55

F.3d at 1091.

100 R. Doc. No. 60-3, at 146.

seeking guidance on how to proceed.”101 However, the referenced emails only

substantiate, rather than refute, Trosclair’s criticism.102 For instance, in one email,

Wilkerson admits that she did not retain “the exact days that [officer Baily] has been

[advised] that she [was] sleeping,” even though Wilkerson had given her three verbal

warnings.103 Further, even though Wilkerson was “aware of [her] responsibility” to

document when she gives verbal warnings, Wilkerson “misplaced the information.”104

Later in the same email exchange, Wilkerson states that she had “been looking for

the information,” but she knew “it has been misplaced,” and Wilkerson “believe[s]

[she] accidentally threw it away.”105

Even crediting Wilkerson’s argument that she was “seeking guidance on how

to proceed,”106 these emails demonstrate that Wilkerson was aware of her duty to

document verbal warnings and that she failed to do so. Moreover, as these verbal

warnings concern officer Bailey sleeping on the job—and Trosclair later discovered

her sleeping on Wilkerson’s shift—Wilkerson has not presented any evidence that

Jefferson Parish’s reason is false or unworthy of credence.

Because Wilkerson has failed to rebut “‘each of the nondiscriminatory reasons

the employer articulates,’” Jones, 8 F.4th at 368, her discrimination claim also fails

on the pretext showing.

101 R. Doc. No. 62, at 20.

102 See generally R. Doc. No. 62-17.

103 Id. at 7.

104 Id. at 5.

105 Id. at 2.

106 R. Doc. No. 62, at 20.

B. Title VII Race Discrimination Claim

Jefferson Parish and Wilkerson each present a single, concurrent argument for

both Wilkerson’s sex and race discrimination claims despite the fact that these

grounds are distinct.107 Presented with this briefing, the Court has considered

Wilkerson’s race discrimination claim under the same standards set forth above for

her sex discrimination claim. Even though Wilkerson’s claims are distinct, her race

discrimination claim fails for the same reasons as her sex discrimination claim.

Summary judgment is proper for Jefferson Parish because Wilkerson cannot make a

prima facie case of race discrimination. Wilkerson does not establish that her position

was filled by an employee outside of her protected class. Moreover, Wilkerson does

not identify a similarly-situated employee outside her protected class who received

more favorable treatment. Even assuming arguendo that she could do so, Wilkerson

cannot demonstrate that Jefferson Parish’s stated reasons for her termination are

actually a pretext for race discrimination.

Finally, as to both her race and sex discrimination claims, Jefferson Parish

argues that although Juncker ultimately fired Wilkerson, she “was recommended for

hire by Trosclair and hired by Juncker, belying a discriminatory animus.”108

Wilkerson does not respond to this argument in her opposition.

107 See, e.g., R. Doc. No. 60-1, at 9 (“Wilkerson cannot establish claims for sex or race

discrimination against Jefferson Parish.”); R. Doc. No. 62, at 4 (“Race and Sex

Discrimination Claims”).

108 R. Doc. No. 60-1, at 35.

“The same actor inference creates a presumption that animus was not present

where the same actor responsible for the adverse employment action either hired or

promoted the employee at issue.” Spears v. Patterson UTI Drilling Co., 337 F. App’x

416, 421–422 (5th Cir. 2009). In Spears, the Fifth Circuit cautioned that “the

presumption created by the same actor inference is not irrebuttable.” Id. (citing Haun

v. Ideal Industries, Inc., 81 F.3d 541, 546 (5th Cir. 1996)); see also Faruki v. Parsons

S.I.P., Inc., 123 F.3d 315, 320 n.3 (5th Cir. 1997) (holding, on summary judgment,

that when “the same actor hires and fires an employee, an inference that

discrimination was not the employer’s motive in terminating the employee is

created.”).

The Court does not consider the same-actor inference to be irrebuttable or

dispositive in deciding Jefferson Parish’s motion for summary judgment. However,

for reasons previously provided, the same-actor inference does weigh in favor of

granting summary judgment. Overall, this inference supports the conclusion that,

even if Wilkerson could establish a prima facie case of sex or race discrimination,

summary judgment is nevertheless appropriate because Wilkerson fails to

demonstrate a genuine issue of material fact as to pretext.

C. Title VII Retaliation Claim

Wilkerson also has filed a Title VII retaliation claim, asserting that “she was

retaliated against for voicing her opposition by complaining to her supervisors of

discriminatory conduct.”109 Wilkerson offers numerous instances where she

109 R. Doc. No. 62, at 22.

expressed her concerns to Jefferson Parish without plainly explaining which events

support her theory of retaliation, but the Court will address each instance in turn.

To demonstrate a prima facie case for a Title VII retaliation claim using

circumstantial evidence,110 “[a] . . . plaintiff must establish that (1) the employee

engaged in activity protected by Title VII; (2) the employer took adverse employment

action against the employee; and (3) a causal connection exists between that protected

activity and the adverse employment action.” Fisher v. Lufkin Indus., Inc., 847 F.3d

752, 757 (5th Cir. 2017) (citing Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir.

2015)). Such a prima facie case “gives ‘rise to an inference of retaliation.’”

Alkhawaldeh v. Dow Chemical Co., 851 F.3d 422, 427 (quoting Shackleford v. Deloitte

& Touche, 190 F.3d 398, 408 (5th Cir. 1999)).

“The burden then shifts to the employer to articulate a legitimate non-

retaliatory reason for the adverse employment action.” Id. “Once the employer

articulates a legitimate, non-retaliatory reason for the adverse employment action,

the burden shifts back to the employee to ‘demonstrate that the employer’s [stated]

reason is actually a pretext for retaliation.’” Id. (quoting Feist v. La., Dep’t of Justice,

Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013)). To demonstrate sufficient

pretext to defeat a motion for summary judgment, the plaintiff must produce evidence

that could lead a reasonable fact-finder to conclude that “the adverse [employment]

110 Wilkerson does not explicitly identify the standard to apply to her retaliation

claim, but she does cite two Fifth Circuit cases applying the McDonnell Douglas

framework. See R. Doc. No. 62, at 24–25 n.81–82 (citing Fierros v. Texas Dep’t of

Health, 274 F.3d 187 (5th Cir. 2001) and Shackleford v. Deloitte & Touche, 190 F.3d

398, 408 (5th Cir. 1999)).

action would not have occurred ‘but for’” the employee’s decision to engage in an

activity protected by Title VII. Feist, 730 F.3d at 454 (citing Univ. of Texas Sw. Med.

Ctr. v. Nassar, 570 U.S. 338, 360 (2013)).

1. Wilkerson demonstrates a prima facie case of retaliation.

(a) Wilkerson establishes one instance of activity protected

by Title VII.

“Under Title VII’s antiretaliation provision, protected activity can consist of

either: (1) ‘opposing any practice made an unlawful employment practice by [Title

VII]’ or (2) ‘making a charge, testifying, assisting, or participating in any manner in

an investigation, proceeding, or hearing under [Title VII].’” EEOC v. Rite Way Serv.,

Inc., 819 F.3d 235, 239 (5th Cir. 2016) (quoting 42 U.S.C. § 2000e–3(a)) (alterations

omitted and added). The first of these prongs is known as the “opposition clause;” the

second is known as the “participation clause.” See id.111

111 For the participation clause, protected activity includes events like filing a charge

with the Equal Employment Opportunity Commission (“EEOC”). See Rodrigue v.

PTS Mgmt. Grp., LLC, ___ F. Supp. 3d ___, ___, 2021 WL 3183404, at *15 (W.D. La.

July 26, 2021). However, “‘[e]very Court of Appeals to have considered this issue

squarely has held that participation in an internal employer investigation not

connected with a formal EEOC proceeding does not qualify as protected activity

under the participation clause.’” Rite Way, 819 F.3d at 239 n.2 (quoting Townsend v.

Benjamin Enters., Inc., 679 F.3d 41, 49 (2d Cir. 2012)); cf. Byers v. Dallas Morning

News, Inc., 209 F.3d 419, 428 (5th Cir. 2000) (calling the participation clause

“irrelevant” when no formal EEOC charge had been filed at the time of the alleged

retaliatory discharge, even though the employee had complained internally of alleged

race discrimination).

Wilkerson argues that “she was retaliated against for voicing her opposition by

complaining to her supervisors of discriminatory conduct.” R. Doc. No. 62, at 22.

Further, she contends that her negative performance evaluation and subsequent

termination “were taken to retaliate against Wilkerson for complaining about conduct

she believed to be discriminatory and illegal.” Id. at 24. Because Wilkerson does not

The Fifth Circuit has repeatedly held that the opposition clause does not

actually require the opposed conduct to, in fact, violate Title VII. Instead, it is

“enough that [the plaintiff] reasonably believed the employment practice to be

unlawful.” Id. at 240 (citing Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d

1130, 1137–40 (5th Cir. 1981)); see Cuellar v. Southwest General Emergency

Physicians, P.L.L.C., 656 F. App’x 707, 710 (5th Cir. 2016) (per curiam) (“[A] viable

Title VII retaliation claim does not necessarily depend on a viable harassment or

discrimination claim.” (emphasis omitted)). While the reasonable belief standard is

“in tension with the plain text” of the statute, Royal v. CCC & R Tres Arboles, L.L.C.,

736 F.3d 396, 401 n.2 (5th Cir. 2013), it “remains good law.” Rite Way, 819 F.3d at

240.

The Supreme Court has stated that “[t]he term ‘oppose,’ being left undefined

by the statute, carries its ordinary meaning: ‘to resist or antagonize[;] to contend

against; to confront; resist; withstand[.]’” Crawford v. Metropolitan Gov’t of Nashville

and Davidson Cty., 555 U.S. 271, 276 (2009) (quoting Webster’s New Int’l Dictionary

1710 (2d ed. 1957)) (internal citations and alterations omitted). The opposition must

indicate that the plaintiff views the employment practice as discriminatory. Breeding

v. Dep’t of Interior, No. 14-948, 2015 WL 1809977, at *8 (E.D. La. Apr. 21, 2015)

(Africk, J.) (finding that opposition clause was not satisfied where plaintiff did not

explain how her opposition “implicated her protected status or how a ‘reasonable

present any argument based on Title VII’s participation clause, the Court does not

discuss that prong further.

employer would have understood [it] to be an expression of opposition to unlawful

discrimination at work’” (emphasis retained) (quoting Stewart v. RSC Equip. Rental,

Inc., 485 F. App’x 649, 652 (5th Cir. 2012))); see also Stewart, 485 F. App’x at 652

(affirming summary judgment as to allegation of retaliation because plaintiff’s

opposition to discrimination was ‘indistinguishable from non-race-based grumbling

by an employee’ and ‘had no racial element’); Allen v. Envirogreen Landscape

Professionals, Inc., 721 F. App’x 322, 326 (5th Cir. 2017) (“In a claim of protected

opposition, an employee must at least have referred to conduct that could plausibly

be considered discriminatory in intent or effect, thereby alerting the employer of its

discriminatory practices.”). Complaints about a “hostile work environment” or

“unfair treatment” must give the employer some notice of how the conduct is

discriminatory. See Tratree v. BP N. Amer. Pipelines, Inc., 277 F. App’x 390, 395 (5th

Cir. 2008) (per curiam) (stating that, in the ADEA context, where the Fifth Circuit

“uses the same standards of proof . . . as it does for Title VII[,] . . . [c]omplaining about

unfair treatment without specifying why the treatment is unfair . . . is not a protected

activity”); Harris-Childs v. Medco Health Solutions, Inc., 169 F. App’x 913, 916 (5th

Cir. 2006) (per curiam) (upholding grant of summary judgment on retaliation claim

where, “[i]n her appellate brief, Appellant [did] not allege that she specifically

complained of racial or sexual harassment, only harassment”).

Wilkerson points to numerous instances to support her retaliation claim. She

first references conduct that began in October 2019 when she “advised Trosclair of

issues with staffing and safety” in a series of communications.112 Assuming arguendo

that Wilkerson reasonably believed that her communications discussed an unlawful

employment practice, her messages do not implicate her protected status or give any

notice that Jefferson Parish’s conduct was discriminatory. See Tratree, 277 F. App’x

at 395; Harris-Childs, 169 F. App’x at 916. This failure forecloses the possibility that

Wilkerson’s communications about staffing and safety constitute protected activity.

Wilkerson next offers an email that she sent on January 15, 2020, “complaining

of harassment and discrimination to Juncker, Sacks, and Trosclair.”113 In one portion

of this email, Wilkerson protests that an unnamed supervisor “bluntly shows

favoritism towards certain staff and certain people,” including employees that had

previous experience at Rivarde.114 Wilkerson further states that this unnamed

supervisor dislikes Wilkerson because she is an “OUTSIDER” who did not work her

way up within the agency, and that Wilkerson was an external hire.115 Wilkerson

later expresses that she is “tired of being retaliated and harassed” because she

disagreed with her fellow supervisor “about the qualifications, pay and the hiring

process.”116 Wilkerson also “called this individual out for not being equally fair to all

112 R. Doc. No. 62, at 22. In the light most favorable to Wilkerson, she expressed in

the underlying text messages and emails that the security protocols at Rivarde were

lacking and that Jefferson Parish should do more to make all staff feel safe and secure

at work. See, e.g., R. Doc. No. 62-12, at 17.

113 R. Doc. No. 62, at 23. The underlying documents that Wilkerson references (R.

Doc. No. 62-17) are a series of emails, but Wilkerson does not specific any particular

message as protected activity. See Doc. No. 62, at 23.

114 R. Doc. No. 62-17, at 1 (capitalization in original).

115 Id.

116 Id. at 3.

staff.”117 Further, Wilkerson objected to the fact that this supervisor did not think

Wilkerson was “equal to them and allow their clique to treat me as such.”118

Again, assuming arguendo that Wilkerson reasonably believed that her email

discussed an unlawful employment practice, her comments do not implicate her

protected status or give any notice that Jefferson Parish’s conduct is discriminatory

based on her sex or race, even if this unnamed supervisor shows favoritism towards

employees who rise through the ranks internally. See Tratree, 277 F. App’x at 395;

Harris-Childs, 169 F. App’x at 916. This failure again forecloses the possibility that

Wilkerson’s email messages constitute protected activity.

Wilkerson then references a grievance she filed against Trosclair on February

12, 2020.119 Wilkerson’s grievance details that Trosclair “retaliated against [her] for

not being cohesive with him” and refusing to agree that “another supervisor was

sleeping in the office” while Wilkerson was present.120 Her grievance further relates

that Trosclair met with Wilkerson and he posed “several inappropriate questions” to

induce Wilkerson “to verbally agree with his remarks/comments and or

suggestions.”121 Again, assuming arguendo that Wilkerson reasonably believed that

her grievance discussed an unlawful employment practice, her complaint does not

implicate her protected status or give any notice that Trosclair’s conduct—asking

Wilkerson to substantiate an allegation against another employee—is discriminatory

117 Id.

118 Id.

119 R. Doc. No. 62 at 23.

120 R. Doc. No. 60-3, at 158.

121 Id.

based on her sex or race. See Tratree, 277 F. App’x at 395; Harris-Childs, 169 F. App’x

at 916.

Wilkerson’s next instance concerns her pre-disciplinary hearing conducted on

February 13, 2021. Wilkerson contends that “[m]ultiple times” during this hearing

she “voiced further complaints about how [Trosclair] treats others differently.”122

Wilkerson’s argument here is simply too vague.

Wilkerson provided the Court with the audio recording of the hearing.

However, Wilkerson has not identified any particular comments that she made

during the hearing or explained how her remarks might be protected activity. Indeed,

this argument cites absolutely no portion of the summary judgment record other than

a blanket reference to the hearing.123 This tactic of generally referring to exhibits in

the entirety is insufficient. Smith, 391 F.3d at 625 (explaining that parties should

include specific citations to summary judgment evidence); Del Carpio Frescas, 932

F.3d at 331 (“Judges are not like pigs, hunting for truffles buried in the record.”)

(quotation marks and citation omitted). The Court declines to ferret out evidence

that Wilkerson is responsible for presenting.

Finally, Wilkerson discusses an email about “discrimination from Trosclair”

that she sent on February 17, 2020.124 In this email, Wilkerson states to Juncker

that “Trosclair is arrogant, egotistical, and very disrespectful” in the way he interacts

122 R. Doc. No. 62, at 23.

123 Id.

124 Id.

with people “especially pertaining to women.”125 Wilkerson protests that Trosclair

treats her and Silby “differently than he treat[s] our supposed to be equal male

supervisors.”126 Here, Wilkerson links her complaints about Trosclair’s behavior to

her protected status as a woman, see Breeding, 2015 WL 1809977, at *8, and

Trosclair’s conduct—treating male and female supervisors differently—could

plausibly be considered discriminatory against women. Allen, 721 F. App’x at 326.

Thus, as to her February 17, 2020 email, Wilkerson has provided evidence of

protected activity by voicing her opposition to her supervisor about Trosclair’s

treatment of women.

(b) Wilkerson suffered an adverse employment action.

In the context of a retaliation claim, unlike that of a discrimination claim, Title

VII “does not confine the actions and harms it forbid to those that are related to

employment or occur at the workplace.” Burlington N. & Santa Fe Ry. v. White, 548

U.S. 53, 57 (2006). In White, the Supreme Court explicitly rejected the Fifth Circuit’s

“ultimate employment decision” standard, “which limit[ed] actionable retaliatory

conduct to acts such as hiring, granting leave, discharging, promoting, and

compensating.” Id. at 60, 67 (internal quotations and alterations omitted). Instead,

White held, “a plaintiff must show that a reasonable employee would have found the

challenged action materially adverse, which in this context means it might well have

dissuaded a reasonable worker from making or supporting a charge of

125 R. Doc. No. 60-3, at 163.

126 Id.

discrimination.” Id. at 68 (internal quotation omitted); see also id. at 69 (adding that

the standard is phrased “in general terms because the significance of any given act of

retaliation will often depend upon the particular circumstances”). Courts in the Fifth

Circuit have concluded that “a negative reference may constitute an adverse

employment action.” Levitz v. Alicia’s Mexican Grille, Inc., No. 19-3929, 2020 WL

710013, *3 (S.D. Tex. Feb. 11, 2020). Jefferson Parish does not dispute that

Wilkerson’s termination was an adverse employment action.127

(c) Wilkerson offers sufficient evidence of a causal link.

While a plaintiff pursuing a retaliation claim is required to “establish that . . .

her protected activity was a but-for cause of the alleged adverse action” suffered,

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013), “the but-for standard

does not apply at the prima facie case stage.” Brown v. Wal-Mart Stores East, L.P.,

969 F.3d 571, 577 (5th Cir. 2020) (quoting Garcia v. Pro. Cont. Servs., Inc., 938 F.3d

236, 242 (5th Cir. 2019)); see Garcia, 938 F.3d at 242 (describing as “binding circuit

law” the statement that “Nassar did not alter the causation prong of the prima facie

stage of retaliation analysis” (internal quotation and citation omitted)). Instead, to

satisfy the third element of a prima facie retaliation case, a plaintiff need only offer

evidence “demonstrat[ing] that the decision maker had knowledge of the protected

activity.” See Tureaud, 294 F. App’x at 914 (finding that evidence supported jury

verdict on retaliation claim and that a jury could reasonably infer that the decision

maker had knowledge of his assistant’s conversation with plaintiff).

127 R. Doc. No. 60-1, at 30.

If the protected activity and the adverse employment action are “very close” in

time, that alone may establish a prima facie causal link. See Thompson v. Somervell

Cty., 431 F. App’x 338, 342 (5th Cir. 2011) (citing Clark Cty. Sch. Dist. v. Breeden,

532 U.S. 268, 273 (2001) (per curiam). However, “even at the prima facie stage,

temporal proximity can only establish a causal link when it is connected to the

decision maker’s knowledge of the protected activity.” Id. (citing Breeden, 532 U.S.

at 273; Cothran v. Potter, 398 F. App’x 71, 73–74 (5th Cir. 2010) (“The combination of

temporal proximity and knowledge of a protected activity may be sufficient to satisfy

a plaintiff’s prima facie burden for a retaliation claim[.]”); Ramirez v. Gonzales, 225

F. App’x 203, 210 (5th Cir. 2007) (“Fifth Circuit precedent requires evidence of

knowledge of the protected activity on the part of the decision maker and temporal

proximity between the protected activity and the adverse employment action.”)). The

Fifth Circuit has held that two-and-a-half months is close enough to “establish

causation.” Garcia, 938 F.3d at 243.

Wilkerson has identified enough evidence to establish a causal link between

her February 17, 2020 email and her termination. Wilkerson wrote the February 17,

2020 email directly to Juncker, the appointing official who terminated her

employment. Upon receiving this email, Juncker decided to terminate Wilkerson’s

employment the very next day. This close temporal proximity, coupled with the fact

that Juncker was directly aware of Wilkerson’s email, is sufficient to demonstrate a

causal connection under Fifth Circuit precedent. Therefore, Wilkerson has

established a prima facie case of retaliation supported by her email complaining of

Trosclair’s behavior towards women and her subsequent termination.128

2. Jefferson Parish offers legitimate reasons for Wilkerson’s

termination.

If the plaintiff succeeds at establishing a prima facie case of retaliation, the

burden then shifts to the employer to articulate a legitimate, non-retaliatory reason

for the adverse action. Alkhawaldeh, 851 F.3d at 427.

Jefferson Parish again argues that it had legitimate reasons for Juncker’s

decision to terminate Wilkerson.129 As the Court has discussed above, Trosclair

observed detention officers sleeping on the night shift when Wilkerson was on duty,

and this incident contributed in part to Wilkerson’s “below expectations” performance

rating.130 Juncker ultimately cited this reason, among others, as justification in

Wilkerson’s termination letter.131 This explanation offers legitimate, non-retaliatory

reasons for Wilkerson’s termination.

3. Wilkerson fails to offer evidence of pretext for retaliation.

“Once the employer articulates a legitimate, non-retaliatory reason for the

adverse employment action, the burden shifts back to the employee to ‘demonstrate

128 In her retaliation argument, Wilkerson emphasizes that her probationary period

was extended, allegedly in violation of DJS policy. R. Doc. No. 62, at 23. Wilkerson

argues this probation extension followed shortly after her January 15, 2020 email,

which the Court determined above was not Title VII protected activity. Because

Wilkerson does not offer any evidence of a causal link between her probation

extension and her February 17, 2020 email, the Court need not resolve whether her

probation extension is an adverse employment action.

129 R. Doc. No. 60-1, at 33.

130 Id. at 19.

131 R. Doc. No. 60-3, at 145–147.

that the employer’s [stated] reason is actually a pretext for retaliation.’”

Alkhawaldeh, 851 F.3d at 427 (quoting Feist v. La., Dep’t of Justice, Office of the Atty.

Gen., 730 F.3d 450, 454 (5th Cir. 2013)).

As with a discrimination claim, “‘a plaintiff may show pretext either through

evidence of disparate treatment or by showing that the employer’s proffered

explanation is false or unworthy of credence.’” Harville v. City of Houston,

Mississippi, 945 F.3d 870, 879 (5th Cir. 2019) (quoting Moss v. BMC Software, Inc.,

610 F.3d 917, 922 (5th Cir. 2010)). “[I]n 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.” Brown v. Wal-Mart Stores East, L.P., 969 F.3d 571, 577 (5th

Cir. 2020) (quoting Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019)

(internal quotation marks omitted)). “Evidence is substantial if it is of such quality

and weight that reasonable and fair-minded men in the exercise of impartial

judgment might reach different conclusions.” Id. (quoting Musser, 944 F.3d at 561–

562). “In deciding whether summary judgment is warranted, the court should

consider ‘numerous factors, including the strength of the plaintiff's prima facie case,

the probative value of the proof that the employer’s explanation is false, and any other

evidence that supports the employer’s case and that properly may be considered.’” Id.

(quoting Price, 283 F.3d at 720). The ultimate question is whether a reasonable fact-

finder could conclude that the employer would not have fired the employee “but for”

the employee’s decision to engage in an activity protected by Title VII. See

Alkhawaldeh, 851 F.3d at 427 (quoting Feist, 730 F.3d at 454).

Wilkerson fails to demonstrate a conflict in substantial evidence with respect

to whether Jefferson Parish’s stated reasons for her termination were a pretext for

retaliation. Wilkerson does emphasize a comment made by Juncker in his deposition:

“[W]hy would I want to keep somebody in a position where she felt like people were

retaliating against her …”132 However, Wilkerson’s presentation of this testimony

truncates the end of Juncker’s statement, which clarifies: “where there was no proof

that anybody was retaliating against her other than two missing teabags [that

Wilkerson suspected someone stole from her office]?”133 Juncker proceeds to explain

that the important criteria for his decision included the fact that Wilkerson lacked

“basic supervision skills” and that “[d]irect supervision, personal contact, is

important.”134 Read in context, this testimony does not suggest that Juncker would

not have terminated Wilkerson “but for” her email complaining about Trosclair.

Further, as the Court discussed with respect to Wilkerson’s discrimination

claim, Wilkerson failed to present evidence contesting each of Jefferson Parish’s

stated reasons for her termination. Wilkerson simply has not demonstrated that

Jefferson Parish’s stated reasons were “false or unworthy of credence.” Harville, 945

F.3d at 879.

132 R. Doc. No. 62, at 24 (citing R. Doc. No. 60-3, at 72).

133 R. Doc. No. 60-3, at 72–73.

134 Id. at 73.

Lastly, Wilkerson’s February 17, 2020 email came only after Trosclair

conducted his surprise inspection in January 2020 and provided Wilkerson with a

“below expectations” performance review. The Court notes that Wilkerson sent her

February 17, 2020 email to Juncker only after her pre-disciplinary hearing where

Juncker discussed her perceived shortcomings. In light of this evidence, “no

reasonable fact-finder could conclude that [Wilkerson] would not have been fired but

for [her] decision to engage in activity protected by Title VII.” Alkhawaldeh, 851 F.3d

at 430. “The ‘but for’ standard represents a ‘high burden’ that [Wilkerson] cannot

meet and has not met.” Id. Because this claim fails at the pretext stage, summary

judgment is warranted in favor of Jefferson Parish as to Wilkerson’s Title VII

retaliation claim.

D. Louisiana Employment Discrimination Law Claims

Both Title VII and the LEDL prohibit employers from discriminating based on

“race, color, religion, sex or national origin.” 42 U.S.C. § 2000e–2(a)(1); La. Rev. Stat.

Ann. § 23:332. As Title VII and the LEDL share the same scope, claims under the

LEDL are analyzed under the Title VII framework and jurisprudence. See DeCorte v.

Jordan, 497 F.3d 433, 437 (5th Cir. 2007); Harrell v. Orkin, LLC, 876 F. Supp. 2d

695, 701 (E.D. La. 2012) (Africk, J.) (“[f]ederal courts look to Title VII jurisprudence

to interpret the LEDL.”). For all the reasons explained above, Wilkerson’s

comparable LEDL claims fail. Accordingly, Jefferson Parish is entitled to summary

judgment on Wilkerson’s LEDL claims for wrongful termination and retaliation.

E. Section 1981: Intentional Race Discrimination Claim

Wilkerson also claims a § 1981 intentional race discrimination claim, which

she asserts under § 1983, against Jefferson Parish. As this Court has previously

explained in an earlier order, the “analysis of employment discrimination claims

under Title VII and § 1981 is ‘identical,’ because ‘the only substantive differences’

between the two statutes are ‘their respective statutes of limitations and the

requirement under Title VII that the employee exhaust administrative

remedies.’” Chen v. Oschner Clinic Found., 630 F. App’x 218, 227 (5th Cir. 2015); see

also Patrick v. Walmart, Inc., 859 F. App’x 687 n.2 (“Race discrimination claims under

Title VII and under section 1981 are ‘parallel’ and require the ‘same proof to establish

liability.’”). Because the analysis is the same, the Court analyzes this claim under

the Title VII framework. See Woods v. Cantrell, No. 20-482, 2021 WL 981612, at *13

(E.D. La. Mar. 16, 2021) (Africk, J.). For all the reasons explained above, Wilkerson’s

comparable § 1981 claim fails. Accordingly, Jefferson Parish is entitled to summary

judgment on Wilkerson’s § 1981 claim for wrongful termination due to intentional

race discrimination.

IV. CONCLUSION

As discussed above, all of Wilkerson’s remaining claims fail as a matter of law.

Therefore,

IT IS ORDERED that Jefferson Parish’s motion! for summary judgment is

GRANTED and that Wilkerson’s claims against Jefferson Parish are DISMISSED

WITH PREJUDICE.

IT IS FURTHER ORDERED that Jefferson Parish’s motion!*¢ in limine is

DISMISSED AS MOOT.

New Orleans, Louisiana, October 27, 2021.

NCE MW AFRICK

UNITED STATES DISTRICT JUDGE

185 R. Doc. No. 60.

136 R. Doc. No. 69.

45