Turner v. Department of Veterans Affairs

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

AKISHE TURNER CIVIL ACTION

VERSUS NO. 22-1370

UNITED STATES OF AMERICA, ET AL. DIVISION “5”

ORDER AND REASONS

Before the Court is Defendant’s Motion for Summary Judgment. (Rec. doc. 33).

Plaintiff has filed an opposition to the motion (rec. doc. 38) and Defendant has filed a reply.

(I.R ec. doBca. c4k1g)r. oHuanvdin g reviewed the pleadings and the case law, the Court rules as follows.

Plaintiff’s Complaint (rec. doc. 1) and Amended Complaint (rec. doc. 31) are difficult

to follow. The pleadings are peppered with acronyms that are unexplained, the events

described are not in chronological order, and spelling errors and incomplete sentences

abound. Indeed, the name of Plaintiff is even unclear: In some documents, she is referred to

as “Akishe Turner,” in others “Akisha Turner.” And one of the now former Defendants is

often “Kevin Oliver” but sometimes “Keith Oliver.” Notwithstanding all this, what the Court

has been able to glean from the pleadings is as follows.

Plaintiff, an African-American female and disabled veteran, began working for the

United States Department of Veterans Affairs in May 2008. (Rec. doc. 31 at 2). On May 1e6t,

2se0q2.2, Plaintiff sued Defendants under Title VII of the Civil Rights Act, 42 U.S.C. §§ e2t0 s0e0q.e

, and the Americans with Disabilities and Rehabilitation Acts, 29 U.S.C. §§ 791 In

her original Complaint, Plaintiff named as Defendants the United States of America, the

Department of Veterans Affairs, the Veterans Administration Medical Center of New Orleans,

and Kevin Oliver, in his capacity as a Health Systems Specialist. (Rec. doc. 1). On March 28,

2023, this Court dismissed as moot Defendants’ motion to dismiss and granted Plaintiff’s

motion to amend her complaint to add the proper Defendant, Denis McDonough, Secretary

of the Department of Veterans Affairs. (Rec. docs. 30, 31).

Before she filed her lawsuit, Plaintiff had submitted a charge of discrimination to the

Equal Opportunity Commission (“EEOC”), which framed Plaintiff’s claims as follows:

Whether the complainant was subjected to a hostile work environment based

on race (Black), sex (female), and disability as evidenced by the following

events:

1. From March 1 thru April 16, 2021, Kevin Oliver (KO), Health Systems

Specialist charged the complainant approximately 97 hours of absent without

leave (AWOL).

2. On April 7, 2021, KO moved all of the complainant’s belongings and

professional files out of her office on her day off and placed them in front of

his office.

(Rec. doc. 33-5 at 1).

The first claim revolves around Oliver’s marking Plaintiff’s near seven-week absence

without notice from March 1 through April 16, 2021 as AWOL and not as leave without pay

(“LWOP”) under the Family Medical Leave Act (“FMLA”). (Rec. doc. 31 at 3). Plaintiff alleges

that she suffers from chronic migraines that incapacitate her at times, (rec. doc. 33-6 at 1-2),

and she has often requested FMLA leave, to no avail. (Rec. doc. 31 at 3). The second claim

accepted by the EEOC stems from Oliver’s removal from Plaintiff’s office of her personal

belongings on April 7, 2021 and placement of them in front of his own office. (Rec. doc. 33-

5 at 1). These were the only two claims accepted and investigated by the EEOC.

II. Summary Judgment Standard

Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as toC ealnotye mx Caoterrpi.a vl .f aCcatt raentdt that the moving party is entitled to a judgment

as a matter of law.” , 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P.

56(c)). “Rule 56(c) mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element eIsds.e ntial to that party's case, and on which the party

will bear the burden of proof at trial.” A party moving for summary judgment bears the

initial burden of demonstrating the basis for summary judgment and identifying those

portions of the record, discovery, Iadn.d any affidavits supporting the conclusion that there is

no genuine issue of material fact. at 323. If the moving party meets that burden, then the

nonmoving party must marshal evidence coIdg.nizable under Rule 56 to demonstrate the

existence of a genuine issue of material fact. at 324.

A genuine issue oSfe em Aantedreiraslo fna cvt. eLxiibsetrst iyf aL orbebays,o Innacb.le jury could return a verdict for

the nonmoving party. Id. , 477 U.S. 242, 248 (1986). The

substantive law identifies which facts are material. Material facts are not genuinely

disputed when a rational trier ofS feaec Mt caotusuldsh nitoat Efilnedc. fIonrd tuhse. Cnoo. nvm. Zoevniinthg Rpaadrtiyo uCporopn. a review

of the record takenE qausa al wEmhopl'et . O pportunity Comm'n v. Simbaki, Ltd. , 475 U.S.

574, 587 (1986); , 767 F.3d 475, 481 (5th

Cir. 2014). “[U]nsubstantiated assertions,” “conclusory allegations,” andS meee Arenldye crsoolonrable

factual bases are insufficient to defeat a motion for summary judgment. , 477

Hopper v. Frank

U.S. at 249-50; , 16 F.3d 92, 97 (5th Cir. 1994). In ruling on aS eseu Dmemltaar &y

jPuidneg mLeanntd mCoot. iov.n ,N aa ctioounrwt imdea yA ngoritb ruessionlevses cIrnesd. iCboi.lity issues or weigh evidence.

, 530 F.3d 395, 398-99 (5th Cir. 2008).

Further, a court must assess the evidence, review the facts, and draw any appropriate

inferences bSeaes eTdo loann t vh. eC eovttiodnence in the light most favoraDbalen tieol st hve. Cpiatyr toyf oAprplinogsitnogn summary

judgment. , 572 U.S. 650, 656 (2014); , 246 F.3d

500, 502 (5th Cir. 2001). A court only draws reasonable inferences in favor of the

nonmovant “when there is an actLuiatlt lceo vn. tLrioqvueirds Ay,i rt hCaotr pis., when both parties have submitted

evidencLeu ojafn c ovn. Ntraatd'li cWtoilrdyl iffaec Ftse.d” ' n , 37 F.3d 1069, 1075 (5th Cir. 1994)

(citing , 497 U.S. 871, 888 (1990)).

After the movant demonstrates the absence of a genuine dispute, the nonmovant

must articulate specific facts and pointS teoe Lsuynpcpho rPtrinopgs, .,c Ionmc.p ve. tPeontto emvaidc eInncse. Ctoh. aotf mIlla.y be

presented in a form admissible at trial. , 140

F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(M2)a.t s Suushchit afacts must create

more than “some metaphysical doubt as to the material facts.” , 475 U.S. at 586.

When the nonmovant will bear the burden of proof at trial on the dispositive issue, the

moving party may simply point to insufficient admissible evidence to establish an essenStieael

eCleelmoteenxt of the nonmovant's claim in order to satisfy its summary judgment burden.

, 477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(B). Unless there is a genuine issue for trial

that couldSe seu Lpitptolert a judgment in favor of the nonmovant, summary judgment must be

granted. , 37 F.3d at 1075-76.

III. Exhaustion

1

“

Before a plaintiff may file suit in federal court under either Title VII or the ADA, the

plaintiff must firsJte nenxhinaguss vt . hTeorw aedrms Winaisttsroantive remedies by filing a charge of discrimiMnaeltgioanr

wv. iTth.B t.h Beu EtlEeOr CP.u” b l'g Co. , 11 F.4th 335, 342 (5th Cir. 2021) (citing

, 931 F.3d 375, 378-79 (5th Cir. 2019) (per curiam)). “Exhaustion

occurs when the Tpalayilnotri fvf . fBileoso kas t Aim Meliyll icohna, rIgnec .with the EEOC and receives a statutory notice

oDfa roi gvh. tA tuoc hsuane. ”H ypermarket , 296 F.3d 376, 378-79e (e5 athls oC iCr.o 2rm00ie2r) v(.c Witianlg-

Mart Stores, Inc. , 96 F.3d 787, 788-89 (5th Cir. 1996)); s

, 145 F. Supp. 3d 666, 667 (W.D. La. 2015) (“Before instituting a Title VII

action in federal district court, a private plaintiff must file an EEOC complaint against the

discriminating party within 180 days of the alleged discrimination and receive statutory

notice of the right-to-sue the respondent named in the charge.”). WhilSet r“oayd mv. iGniisbtsroant iovne

ebxehhaaulfs otfi oDne pis't noof tV eat jeurrainsds iAcftfiaoinrsal requirement, it is still a requirement.”

, 896 F.3d 693, 698 (5th Cir. 2018) (affirming district court's

dismissal of plaintiff's employment discrimination suit when plaintiff failed to exhaust

administrative remedies and offered no justification for failing to do so besides his “good

faith effort”).

“The scope of a Title VII complaint is limited to the scope of the EEOC invTeshtoigmaatiso vn.

wTehxiacsh Dceapn' tr eoaf sCornimab. lJyu sbteic eexpected to grow out of the charge of discrimination.” Sims v. La.

State , 220 F.3d 389, 395 (5th Cir. 2000) (citation omitted);

, No. CV 22-2609, 2023 WL 405443, at *3 (E.D. La. Jan. 25, 2023). “Any charge not

1

Plaintiff does not address exhaustion in her opposition.

alleged in the EEOC complaint and/or reasOornaambolyu se vx. pMeicl.t eDde pt'ot ogf rLoaw. out of the EEOC

investigation is barred from judicial review.” , No. 05-3677, 2007

WL 2344921, at *1 (E.D. La. Aug. 15, 2007).

Here, Turner only exhausted two discrete claims before the EEOC. First, for both

disparate impact and as a part of Turner’s hostile work environment claims, “[f]rom March

1 thru April 16, 2021, Kevin Oliver (KO), Health Systems Specialist charged the complainant

approximately 97 hours of absent without leave (AWOL).” (Rec. doc. 33-5 at 1). Second,

that on April 7, 2I0d2.1, Oliver removed Turner’s personal belongings and professional files

from her office. ( ).

However, Turner’s Complaint and Amended Complaint appear to allege a host of

claims that occurred from July 2018 through February 2021. (Rec doc. 31). Moreover, the

Amended Complaint seems to allege claims that were not exhausted, including: (i) denial of

leave in July 2018; (ii) being marked AWOL for using the bathroom during July 2018; (iii)

denial of leave in August 2018; (iv) being relocated seven times during the period of

September 2018 through 2021 (to the extent these do not involve the April 7, 2021 event,

which is wholly unclear); (v) theft of $389.00 of personal property; (vi) removing Turner’s

property from her office and throwing it in the trash; (vii) retaliatioInd .by ignoring LWOP

requests due to Hurricane Ida; and (viii) a failure to accommodate. ( ). Plaintiff did not

exhaust any of these claims with the EEOC, and they would not be expected to grow out of

Plaintiff’s charge with the EEOC. As such, any claim that arose before March 1, 2021 has not

2

been exhausted and must be dismissed without prejudice.

Fort Bend Cnty., Tex.

v2. Davis

Because non-exhaustion due to failing to file an EEOC charge is not a jurisdictional defect,

, 139 S. Ct. 1843, 1846 (2019), “the appropriate disposition of Title VII claims that have not been

IV. Discrimination

“Title VII makes it an unlawful employment practice for an employer to discriminate

against any individual with respect to [her] compensation, terms, conditions, or privilegEeEsO oCf

ev.m Bpolho yBmroesn. tC, obnesctaru. sCeo o. f such individual's race, color, religion, sex, or national origin.”

3

McDonn, e7ll3 1D oFu.3gdla 4s 4C4o, r4p5. 2v .( 5Gtrhe eCnir. 2013) (en banc). The burden shifting

framework of , 411 U.S. 792 (1973), and its progeny

establish the respective burdens and standards for plaintiffs and defendants on a motion for

sDuumncmaanr vy. Ujundivg.m oef nTte xf.o Hr ecaaluthse Ssc io. fC tarc. taiot nH ouunsdtoern Title VII based on circumstantial evidence.

Septimus v. Univ. of Houston , 469 F. App’x 364, 368 & n.6 (5th Cir. 2012);

4

, 399 F.3d 601, 608 (5th Cir. 2005). Under this framework,

Dowdell v. Culpepper & Assocs. Sec. Servs., Inc.

exhausted is dismissal without prejudice.” , No. CV 19-11410,

2020 WL 5095274, at *2 n.26 (E.D. La. Aug. 28, 2020) (dismissing the unexhausted Title VII claims without

prejudice, allsoewe ianlsgo t Bhea rpnleatitn vti. fLf ato. D laepte'tr orfe Htueranlt tho court after she exhausted her administrative remedies, but

emphassiuzpinpgle tmhaetn tthede court “ha[d] not [yet] made a finding as to whether any claim filed after exhaustion would

be timely.”); , No. CV 17-1793, 2023 WL 2467877, at *12 (M.D. La. Mar. 10,

2023), , No. CV 17-1793-JWD-SDJ, 2023 WL 2467876 (M.D. La. Mar. 10, 2023) (same).

3See Daigle v. Lib. Life Ins. Co. McDonnell Douglas see also Jackson v.

W Tilhkeie Fifth Circuit applies Title VII jurisprudence for disparate treatment claims under the Rehabilrietpatoirotn Aanctd.

recommendation adopted , 70 F.3d 394, 396 (5th Cir. 1995) (applying );

, No. 419CV00721SDJCAN, 2020 WL 4912916, at *12 (E.D. Tex. July 21, 2020),

, No. 4:19-CV-721, 2020 WL 4884003 (E.D. Tex. ACuogu. 2te0e, 2v.0 W20il)k (i“eThe same ‘remedies,

procedures, and rights’ set forth in Title VII of the Civil Rights Act for other employment-discrimination claims

applies to disability-discrimination claims under the Rehabilitation Act.” , No. CV H-19-2312,

2019 WL 6118901, at *2 (S.D. Tex. Nov. 18, 2019) (quoting 29 U.S.C. § 794(a)).

See Kaswatuka v. United States Dep't of Homeland Sec.

Moreover, it should be noted that any claims asserted by Plaintiff under the ADA are preempted by the

Rehabilitation Act. , No. 4:19-CV-947-A, 2020 WL

3038073, at *2 (N.D. Tex. June 5, 2020) (noting that the ADA does not apply to federal employees because “the

provisions of the ADA are made applicable to federal employees through the Rehabilitation Act.”). Plaintiff

does not elaborate on what specific claims she raises under the ADA or what specific conduct she believes to

have violated the ADA. However, because the Court finds that any such claims raised under the ADA would be

proper only under the Rehabilitation Act, the Court need not consider what ADA claims, if any, Plaintiff seeks

to raise separate and apart from her Rehabilitation Act claims. Accordingly, the Court finds that any of

Plaintiff's claims raised under the ADA should be and will be dismissed.

4

D Iann hieel rv o. Bpdp.o osfi tSiounp,e Prvlaisinortisf ff ocro nLtae. nSdtast teh Uatn sivh. eA hgarisc o. &ffe Mreedc hd. iCreocllt. evidence of discrimination. “‘Direct evidence

is evidence which, if believed, proves the fact of intentional discrimination without inference or presumption.’”

, No. 21-30555, 2022 WL 1055578, at *5 (5th

prima facie

Plaintiff has the initial burden of proMvicnDgo na nell Douglascase of retaliation or discriminpartiimona

bfayc aie preponderance of the evidence. McDonnell Doug, l4a1s1 U.S. at 802. To establish a

case of discrimination under the burden-shifting framework, “an

employee must demonstrate that she ‘(1) is a member of a protected group; (2) was qualified

for the position at issue; (3) was discharged or suffered some adverse employment action by

the employer; and (4) was replaced by someone outside [her] protected group or was

tGraerartiesdon le vs.s Tfarveogrraebly than other similarly situated employees outside the protected group.’”

Morris v. T, oNwon. CoVf In1d9e-1p.3008, 2021 WL 6050179, at *2 (E.D. La. DeWc.i l2lis1 ,v .2 C0l2e1co)

(Cqourpo.ting , 827 F.3d 396, 400 (5th Cir. 2016) (quoting

, 749 Fp.r3idm 3a1 fa4c, i3e1 9-20 (5th Cir. 2014)).

If a case is made, a presumption of discrimination arises, and the burden

then shifts to the employer toB prrooadduwcea ya vle. Ugintiitmeda tSet,a ntoens dDiespc’rti mof iHnaotmoeryla rneda Ssoecn. for the alleged

adverse employment action. , Civ. A. No. 04-

1902, 2006 WL 2460752, *3 (ER.eDe.v eLsa v. . ASuagn.d e2r2s,o n2 0P0lu6m). b in“Dg ePfreonddsa.,n Itn’sc . burden is one of

production, not persuasion. . . .” , 530 U.S. 133, 142

(2000). A defendant must merely set forth, through admissible evidence, reasons for its

actions which, if believed by the trier of fact, would support a finding that unlawful

Portis v. First Nat'l Bank of New Albany, Miss.

Cir. Apr. 8, 2022) (quoting , 34 F.3d 325, 328-29 (5th Cir. 1994))

(alteration omitted)).E “a‘Sgtlaint evm. eTnetxs. oCrh idldorceunm'se Hntoss pw.hich show on their face that an improper criterionJ osenrevse vd.

aRso bai bnsaosnis P–r noopt. nGerpce., sLs.aPr.ily the sole basis, but a basis – for the adverse employment ascetieo na lasore H deirrsetcetr e vv.i dBedn. coef

Souf pdeirsvcirsiomrisn oaft iLoan.. ’S”t a te Univ. , 801 F. App'x 250, 255 (5th Cir. 2020) (quoting

, 427 F.3d 987, 993 (5th Cir. 2005)) (alterations omitted); Portis

Wilkinson v. Pin, n8a8c7le F L.3odd g1i7n7g,, L1.8L5.C (.5th Cir. 2018) (“‘In the context of Title VII, direct evidence

includes any statement or written document showing a discriminatory motive on its face.’”) (quoting , 34

F.3d at 329); , No. CV 20-3427, 2022 WL 3083437, at *5 (E.D. La. Aug. 3,

2022) (same). Plaintiff offers no such direct evidence here.

St. Mary’s Honor Ctr. v. Hicks

discrimination was not the cause of the employment action. Smith,

5v.0 A9a Uro.Sn. ’5s 0In2c, .507 (1993). This causes the presumption of discrimination to dissipate.

, 325 F. Supp. 2d 716, 724 (E.D. La. 2004).

At the third stage of the burden-shifting framework, the plaintiff is given a “full and

fair opportunity to demonsPtrraictee ”v .t hFaetd . tEhxep dreesfsendant’s proffered reason is a pretext for

iHnitceknstional discrimination. , 283 F.3d 715, 721 (5th Cir. 2002) (citing

, 509 U.S. at 507-08). On summary judgment at this third step, the plaintiff must

substantiate her claim of pretext throuPgrhic eevidence demonstrating that discrimination lay at

the heart of the employer’s decision. , 283 F.3d at 721. Even when such a showing is

made, however, it will not always be enough to prevent summIda.ry judgmReenevt eisf no rational

factfinder couRlede cvoesnclude that the action was discriminatory. (citing , 530 U.S. at

148). As the court explained,

The ultimate question is whether the employer intentionally discriminated,

and proof that the employer’s proffered reason is unpersuasive, or even

obviously contrived, does not necessarily establish that the plaintiff’s

proffered reason . . . is correct. In other words, it is not enough . . . to dis believe

[sic] the employer; the factfinder must believe the plaintiff’s explanation of

intentional discrimination.

. . . Certainly there will be instances where, although the plaintiff has

established a prima facie case and set forth sufficient evidence to reject the

defendant's explanation, no rational factfinder could conclude that the action

was discriminatory. For instance, an employer would be entitled to judgment

as a matter of law if the record conclusively revealed some other,

nondiscriminatory reason for the employer's decision, or if the plaintiff

created only a weak issue of fact as to whether the employer's reason was

untrue and there was abundant and uncontroverted independent evidence

that no discrimination had occurred. . . .

530 U.S. 146-48 (internal citations omitted). “Whether summary judgment is appropriate

depends on 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 aIndy. other evidence

that supAp. oDrtiss tphaer eamtep Tloryeeart’ms ceanste and that properly may be considered.”

“Disparate treatment refers to deliberate discrimination iMn tuhneo tze vr.m Osr ror conditions of

employment . . . on account of race, national origin, or gender.” , 200 F.3d 291,

299 (5th Cir. 2000). “Disparate-treatment discrimination addresses employment actions

that treat an employee worse than others based on the employee's race, color, religion, sex,

or national origin. InC iscuaclhes ed ivs.p Uanraivt.e o-tfr Teeaxtm. Meendt . cBarsaens,c hproof and finding of discriminatory

motive iPsa rcehqeucior evd. .”M ineta , 924 F.3d 762, 766 (5th Cir. 2019)

(citing , 448 F.3d 783, 787 (5th Cir. 2006)). A pPlaoirnttiisf fv .c Fainrs tp Nroavte'l

dBiasnckri omf iNneawto Arylb manoyti, vMei sths.rough either direct or circumstantial evidence.

, 34 F.3d 325, 328 (5th Cir. 1994). When a plainMticfDf bouninldelsl aD coauseg loans

circumstantiaSle ee Lvaidxteonnc ev,. Gtahpe Incoc.urt analyzes that claim under the

framework. prima facie , 333 F.3d 572, 578 (5th Cir. 2003).

To establish a case of disparate treatment, a plaintiff must show that (1)

she belongs to a protected group, (2) she was qualified for her position, (3) she suffered an

adverse employment action, and (4) aW saimtkiilnasr lvy. sTitrueagtreed employee outside of her protected

group wNaass tti rve. aCtIeBdA m Spoereci afaltvyo Crahbelmy.s . Corp. , 997 F.3d 275, 282 (5th Cir. 2021)

(citing , 492 F.3d 589, 593 (5th Cir. 2007)). As the Fifth

Circuit has held, there are two ultimate elements that a plaintiff must plead to support a

disparate treatment claim under Title VII: (1) an “aSdevee Rrsaej ve.m Lpal. oSytamtee nUtn aivc.tion” (2) taken

against a plaintiff “because of her protected status.” , 714 F.3d 322,

331 (5th Cir. 2013) (explaining that a plaintiff must allege “facts, [either] direct or

circumstantial, that would suggest [the employer's] actions were based on [the plaintiff's]

race or national origin or that [the employer] treaKteadn isdiam vi.l aGrulylf sCiotuaastt eMde edm. Ppelrosy. LePes of other

races or national origin morPea fcahveocroably”) (quoting , 363 F.3d

568, 576 (5th Cir. 2004)); , 448 F.3d at 787 (a “discriminatory motive is required”

for disparate treatment claims). An “[a]dverse employment action[] include[s] only ultimate

employment decisions such as hiring, granting leave, discharging, promoting, or

compensation. An employment action that doeWs enlosht av.f fFeocrt t joBben ddu Itniedse,p c. oSmchpoeonl sDaitsito.n, or

benefits is not an adverse employment action.” , 941

F.3d 818, 824 (5th Cir. 2019). prima facie

Defendant first argues that Plaintiff cannot establish a case of

discrimination because she cannot identify a comparator. The “similarly situated” prong

requires a Title VII claimant to identify at least one coworker outside of [herL]e pe rvo. tKeactne. dC citlya sSs.

wRyh. oC ow.as treated more favorably “under nearly identical circumstances.”

, 574 F.3d 253, 259 (5th Cir. 2009). This coworker, known as a comparator, must hold

the “same job” or hold the same job responsibilities as the Title VII claimant; must “share[ ]

the same supervisor or” have his “employment status determined by the same person” as

the Title VII claimant; and mustA hlkahvae waa hldisetho rvy. oDfo “wv iCohlaetmio.n Cso” .or “infringements” similar to

that of the Title VII claimant. , 851 F.I3dd. 422, 426 (5th Cir.

2017). The Title VII comAlpkahraawtoarld neheed only be similar – not identical. at 427 n.10.

For example, in , the plaintiff

identifie[d] himself as a Muslim Jordanian Arab FS/FL in Dow's Epoxy

Research and Development Group. Therefore, in order for Ammar to satisfy

the “similarly situated” prong, he must identify at least one non-Muslim

Jordanian Arab FS/FL in Dow's Epoxy Research and Development Group who

received a 1 rating, as he did, and who completed a PIP, as he did, but who was

Id. not fired, as he was.

at 427. Here, Turner identifies as a disabled African-American female who works as a

Program Analyst in the Department of Primary Care Services with a pay grade of G-11 whose

time was marked AWOL and whose property was moved out of her office. Turner must

therefore identify a non-disabled non-African-American female with a similar position and

the same supervisor, who committed the same infractions as Turner, but whose time was

not marked AWOL and whose property was not moved out of her office.

Plaintiff identified Trinette Pichon and Kathy Joseph as comparators. (Rec. doc. 33-7

at 9). Both Pichon and Joseph are African-American females – the same protected class as

Turner – and both were supervised by Oliver. (Rec. doc. 33-6 at 13; rec. doc. 33-7 at 9). No

other facts are provided regarding Pichon or Joseph. While Pichon and Joseph had their leave

requests approved and were not coded as AWOL (rec. doc. 33-7 at 9), Turner was given the

same opportunity as Pichon and Joseph to have her leave coded as LWOP and not AWOL after

her FMLA request had been approved. (Rec. doc.T 3h3e- 7d iaftf e8r)e. nOcleiv iesr tahttaets Mtesd.: Turner

refused to communicate with management (Myself, Dr. Elizabeth Bowles,

Mors .D Tru. rAnnert hwoansy t rMeaatresdh e) xoanct lhye trh ele saavmee a. nd absences. She refused to call,

text, or email her requests for absences as outlined in the HR FMLA Letter

(attached). Ms. Turner’s FMLA memo that was sent to her and

management clearly states:

“Be advised that in emergency or unforeseen situations, you are expected to

notify your Supervisor of your need to take FMLA leave as soon asY opuos msibulset,

baduth neore la tteor tNheawn twOor lheoaunrss aVfAteMr yCo ule aarvee s cphoeldiucileeds taon rdep oprrto fcoerd duurteys. Fwailhuerne

troe qduoe ssot imnga yF MreLs”u.lt in charging of absence without leave (AWOL).

Ms. Turner was afforded the opportunity to request that the medical center

Director change her AWOL to LWOP upon her return to work and that service

submission of the request memorandum. She did not return to duty to my

Id. knowledge.

( ) (emphasis in original). Simply put, Turner was not similarly-situated to Pichon and

Joseph, and even when offered the same opportunity as Pichon and Joseph to have her leave

coded as LWOP, she simply failed to avail herself of it.

Plaintiff has failed to identify a single similarly-situated employee who was treated

more favorably than her. This alone justifies dismissal of her Title VII claim. It is well-

established that a Title VII claimant can ontlhya pn rootvhee rds iospuatsriadtee otfr heaertm perontte cbtye dp crleassesntSinege

Revoigdeerns cve. Ptheaatr lsahned wInadse tpr. eSacthe.d D liests.s favorably .

, 827 F.3d 403, 409 (5th Cir. 2016). “Title VII was enacted

to prohibitA dlkishcarwimailndaehtion on the basis of race, Lgiegnhdtnere,r avn. dC iotyt hoef rW leilgmisinlagttivoenl,y N e.Cn.umerated

grounds.” , 851 F.3d at 427 (citing , 545 F.3d

260, 262 (4th Cir. 2008)). It was not enacted to promote “general fairInde.ss in the workplace,

or . . . to protect against” the indiscriminate treatment of employpereims. a fa cie

Defendants also contend that Plaintiff cannot establish a case of disparate

treatment because she suffered no adverse employment action. “Adverse employment

action” refers to an employment decisionS tehea Pt engergaamti vve. lHy oanfefeycwtse ltl,h Ien cc.ompensation, terms,

conditions, or privileges of employment. , 361 F.3d 272, 281-

82 (5th Cir. 2004) (citations omitted). In the context of a discrimination claim, adverse

employment actions involve “ultimate employment deSceies iAonlvsa”r asduoc hv . Tase x.h Rirainngge, rfsiring,

demoting, promoting, granting Pleeagvrea,m and compensating. , 492

F.3d 605, 612 (5th Cir. 2007); , 361 F.3d at 282. Because an adverse employment

action is an element of a discrimination claim, a plaintiff must put forth Rsuajf fvic. iLean. tS ptartoeo Uf tnhiva.t

she suffered an adverse employment action because of discrimination. ,

714 F.3d 322, 331 (5th Cir. 2013). Conclusory allegations that do not contain sufficient

content to allow the Court to draw the inference that the alleged adverse act was based on

the protected characTtehroimstaics vd. oB unrrootw ssatisfy the facial plausibility requirement for a

discrimination claim. , Civ. A. No. 22-3511, 2023 WL 1783694, at *4 (E.D.

La. Feb. 6, 2P0e2u3le)r. v“.T Jheew Felilfth Circuit has a “strict interpretation of the adverse employment

element.” Pegram v. Ho,n Ceiyvw. eAl.l ,N Inoc. .14-0247, 2016 WL 5930242, at *5 (E.D. La. Oct. 12,

2016) (citing , 361 F.3d 272, 282 (5th Cir. 2004)).

Here, Plaintiff complains that she was coded AWOL when she missed seven weeks of

work without providing notice pursuant to company policy. Even though Plaintiff was coded

AWOL instead of LWOP, she would not have been paid for this time off whether she was

coded AWOL or LWOP. Moreover, while her leave was not granted, Turner was also

provided the opportunity to convert the AWOL time to LWOP but chose not to participate in

the process. (Rec. doc. 33-7 at 8) (“Ms. Turner was afforded the opportunity to request the

medical center Director change her AWOL to LWOP . . .”). Indeed, Plaintiff was not even

disciplined regarding her AWOL time. (Rec. doc. 33-8 at 6) (“AWOL is not a disciplinary

action. It only tells the employee that he/she will not be paid for those hours”).

Turner did not suffer a change in job duties, compensation, or benefits as a result of

being Sceoed, eed. gA.,W POeuLl earnd, thus, did not suffer an adverse employment action as a matter of

law. , 2016 WL 5930242, at *5 (finding the plaintiff “failed to produce

evidence of an adverse employment action” despite claiming she was marked AWOL).

Indeed, Plaintiff acknowledged in an email dated February 5, 2021 that she had “been trusted

with additional duties because of [her] professional performance.” (Rec. doc. 33-6 at 13).

There is no genuine issue of material fact whether Plaintiff suffered an adverse employment

5

action wBi. thHino sthtiel ec oWnofirnke sE onfv Tiritolen mVIeI n– ts he did not.

Title VII also makes it unlawful for empWloyesetr vs . Ctoit yr eoqf Huiorues t“opne,o Tpelxe. to work in a

discriminatorily hostile or aGbaursdivnee re nvv. iCrLoCn mofe Pnat.s”c agoula, L.L.C. , 960 F.3d 736,

741 (5th Cir. 202H0a)r r(cisi tvin. gF orklift Systems, Inc. , 915 F.3d 920, 325 (5th Cir.

2019) (quoting , 510 U.S. 17, 21 (1993)). “A hostile work

environment claim is composed oIfd a. series Nofa tsieopnaarla Rte.R a. Pctass stehnagt ecro Clloercpti.v ve. lMy ocrognasntitute one

‘unlawful employment practice.’” (citing , 536 U.S.

101, 117 (2002) (quoting 42 U.S.C. § 2000e-5(e)(1)). To survive summary judgment on a

hostile work environment claim based on race or sex discrimination, a plaintiff must show

that (1) she is a member of a protected class; (2) that she was subject to unwelcome

harassment; (3) that the harassment was based on her protected class status; (4) the

harassment “affected a term, condition or privilege of employment”; and (5) “that the

employer knew orI ds.h ould haRvaem ksneyo wv.n H” eanbdoeurts otnhe harassment and “failed to take prompt

remedial action.” (citing , 286 F.3d 264, 268 (5th Cir. 2002)). The

last element may not apply when the harassment is committed by a supervisor who is

responsible for the terms and conditions of the plaintiff’s employment, for the plaintiff's

prima facie

5

Because the Court finds that Plaintiff fails to establish a case of discrimination, it need not consider

whether Defendants produced a legitimate, nondiscriminatory reason for any alleged adverse employment

action, which Plaintiff did not suffer in any event.

See Nash v.

wEloercktr oasspsaigcen mSyesn., tI nwc.ithin the company, or for hiring or firing decisions.

, 9 F.3d 401, 404 (5th Cir. 1993).

To affect a term, condition, or privilege of employment, the harassment must be

sufficiently severe or pervasive to aIldte.r the coAnrdyiitaionn vs. oWf athlme avirctt Simto’rse esm Tpexlo. yLmPent and create

an abusive working environment. (citing , 534 F.3d 473,

4Id7.9 (5th CirH. a2r0r0is8)). The conduct must be objectively and subjectively hostile or abusive.

(citing , 510 US at 21-22). The totality of tIhde. emploHymarernist circumstances

determines whether an environment is objectively hostile. (citing , 510 U.S. at 23).

Although no single factor is determinative, pertinent considerations are: (1) “the frequency

of the discriminatory conduct”; (2) “its severity”; (3) “whether it is physically threatening or

humiliating, or a mere offensive utteraIndc.e”; and (4) “whether it unreasonably interferes with

an employee’s work performance.” While courts may consider conduct outside the

Racatmiosneayble period, that conduct “can only be viewed as relevant background conduct.”

, 286 F.3d at 268. In this case, Plaintiff complains of conduct well outside of the

actionable period, March 1, 2021 through April 16, 2021. Even though the Courptr icmana

cfaocniesi der that conduct as relevant background material, the Court finds that Plaintiff’s

case still fails.

Plaintiff produces no evidence that race, sex, or disability motivated any harassment.

Specifically, she does not produce evidence that either race, sex, or disability was the reason

that her time was coded AWOL or that her belongings were moved out of her office during

her absence. The reasons that Oliver coded her time as AWOL are outlined in detail above.

And there is no evidence to support a finding that Oliver moved her belongings out of her

office because of her race, sex, or disability.

Moreover, there is no evidence to support the idea that coding Plaintiff’s time as

AWOL – when she disappeared for seven weeks and failed to notify her employer of her

absence pursuant to company policy – or the moving of her belongings out of her office –

when she was on unapproved leave – were sufficiently severe or pervasive to alter the

conditions of Plaintiff’s employment. When Oliver moved Plaintiff’s belongings out of her

6

office, Plaintiff occupied an office typically assigned to the PCMM, a position that had just

been filled. (Rec. do c. 33-7 at 6). Plaintiff knew she had to vacate the PCMM office by at least

February 5, 2021. (Rec. doc. 33-6 at 13) (acknowledging request to move). Rather than

move offices as directed, Plaintiff stopped attending work – without notice – beginning on

March 1, 2021. (Rec. doc. 33-7 at 6; Rec. doc 33-11 at 14-16).

Oliver only moved Plaintiff’s personal belongings and professional files to

accommodate the new PCMM after Plaintiff had not returned to work for over a month. (Rec.

doc. 33-7 at 6; Rec. doc. 33-11 at 14-16). Although Plaintiff did not return to work for at least

another week or two after Oliver moved her belongings out of her office, Turner came to

work that weekend to take her belongings home. (Rec. doc. 33-7 at 6).

Plaintiff does not claim that her office location was critical for her job. Indeed, she

even admitted that she had no problem with any office to which Oliver moved her. (Rec. doc.

33-6 at 13) (“Though I do no have any issue with space . . . .”). The evidence reveals that from

January 1, 2021 until April 19, 2021, Turner used 408.25 hours of various leave. (Rec. doc.

6

This acronym is undefined.

33-11 at 14-16). Simply put, Turner was often absent from work. No reasonable employee

would view an office change as being sufficiently pervasive or severe to alter the terms,

conditions, orH ipnreirv vil.e MgecsH uogfh Plaintiff’s employment and create an abusive working

environment. , 546 F. App'x 401, 408 (5th Cir. 2013). Because Plaintiff does

not offer a single example of how a “term, condition, or privilege” oIfd h. er employment was

affected by Oliver’s actions, the Court finds that this claim must fail.

To the extent Plaintiff offers her AWOL status as a basis for the hostile work

environment claim, that claim also fails. Again, Plaintiff has offered no evidence that her

AWOL status affected a term, condition, or privilege of her employment. As noted above,

AWOL status is not a disciplinary action but only notifies the employee that she will not be

paid for that time. Indeed, had Plaintiff’s hours been coded LWOP, she would not have been

paid in any event. Moreover, Plaintiff has produced no evidence that she followed Agency

policy for using her FMLA leave by notifying her supervisors. Oliver coded Plaintiff’s hours

as AWOL pursuant to his employer’s policy. (Rec. doc. 33-7 at 5Id).. Plaintiff was afforded the

right to convert her AWOL time to LWOP yet failed to do so. ( at 8). Again, Plaintiff was

not disciplined for her AWOL time and would not have been paid for these absences

regardless. (Rec. doc. 33-8 at 6). No reasonable employee would consider the Agency

following its policy to be sufficiently pervasive or sever to alter the conditions of Plaintiff’s

employment and create an abusive working environment. Accordingly, there is no genuine

issue of material fact as to the existence of a hostile work environment as a matter of law.

C. Prematurity

Plaintiff argues that Defendant’s motion for summary judgment is premature because

she needs more time to conduct discovery. Rule 56(f) governs the need for discovery on a

motion for summary judgment “[s]hould it appear from the affidavits of a party opposing the

motion that the party cannot for reasons stated present by affidavit facts essential to justify

the party's opposition. . . . The Rule is an essential ingredient of the federal summary

judgment scheme, and provides Cae lmoteecxh aCnoirspm. vf.o rC adteraeltitng with the problem of premature

summary judgment motions.” , 477 U.S. 317, 326 (1986). The

discovery authorized by Rule 56(f) is Uan sioanfe C hitayr Bbaorrg beu Liilnt ei,n Itnoc .t vh.e U rnuiolens Csaor bthidaet Csourmp.mary

judgment is not granted prematurely. , 823

F.2d 129, 136 (5th Cir. 1987). To comply with the rule, the party opposing summary

judgment need only file the specified non-evidentiaryId a.ffidavit, explaining why it cannot

oppose the summary judgment motion on the merits. Nevertheless, a claim that further

discovery orW aa tsrhiianlg mtoing hv.t A rremvsetarlo nfagc Wts oorfl dw Inhdicuhs .,t Ihnec .nonmovant is currently unaware is

insufficient. , 839 F.2d 1121, 1123 (5th Cir. 1988).

The party may not relyU noino nv aCgituye assertions that additional discovery will produce needed,

but unspecified, facts, , 823 F.2d at 137, but instead must Sideee nWtiofyo das g ve.n Fueind.e H isosmuee

Loof amna Btearnika lB fda.ct that justifies the need pending further discovery.

, 826 F.2d 1400, 1415 (5th Cir. 1987). A party seeking discovery to respond to

a motion for summary judgment must demonstrate why it needs additioKnrailm d ivs.c BoavnecrTy eaxnads

hGorowu pth, eIn acd.ditional discovery will create a genuine issue of material fact.

, 989 F.2d 1435, 1442 (5th Cir. 1993). It must show a genuine issue of material

see McCarty v. United States

fact that requires postponement for discovery, , 929 F.2d 1085,

1088 (5th Cir. 1991), and must present speciSfiece fSaoctlos Seexrpvlea iCnoinrpg. ivt.s W ineasbtoilwitnye t Ao smsoacks.e the

substantive response required by Rule 56(e). , 929

F.2d 160, 167 n.25 (5th Cir. 1991).

Plaintiff – as the party opposing summary judgment – did not file a specified non-

evidentiary affidavit explaining why she cannot oppose the summary judgment motion on

the merits. She fails to explain why she needs additional discovery and how the additional

discovery will create a genuine issue of material fact. Plaintiff relies solely on vague and

conclusory assertions that additional discovery will produce needed, but unspecified, facts

that may aid her in opposing the motion for summary judgment. These assertion are

iVn.s ufficCieonntc tlou ssaiotinsfy the need for discovery under the case law outlined above

Indest v. Freeman

Decorat“iTnigtl, eI nVcI.I is not a general civility code for the American workplace.”

, 164 F.3d 258, 263 (5th Cir. 1999). Inbsetceaauds,e Title VII and the Rehabilitation

Act prohibit only certain employment actions taken “ of [an] individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a) (emphasis added). A plaintiff’s Title

VII and Rehabilitation Act claims are properly dismissed when her “allegations do not

contain any connection, either eExlplilsic vit. Porr iinmcippliicit, between her membership in a protected

class and the alleged activity.” , 246 F. App'x 867, 871 (5th Cir. 2007) (per

curiam). Stated differently, whatever the morality or lack thereof of the conduct may be,

hostile or uncouth behavior that is unrelated to any protected trait does not create diBsupranrsa tve.

treatment discrimination or a hostile work environment in the eyes of the law.

Brennan on behalf of U.S. Postal Serv.

, 803 F. App'x 776, 777 (5th Cir. 2020). Although Plaintiff

alleges that she was treated poorly by Defendant, she has not alleged any facts bcerceaautisneg a

genuine factual dispute as to whether the discrimination and harassment were of

any proItTe cItSe dO tRraDiEt. R AEcDcordingly, and for the foregoing reasons,

GRANTED that Defendant’s Mio.eti.on for Summary Judgment (rec. doc. 33) is

DISMIS. S PElDai nWtiIffT’sH uOnUeTxh PaRusEtJeUdD cIlaCiEms – , any claim that arose before March 1, 2021 –

7

are .D IPSlMaiInStSifEf’Ds cWlaIiTmHs ePxRhEaJuUsDteIdC Ebefore the EEOC and

8

any potential claims under the ADA 1ar4et h August .

New Orleans, Louisiana, this __________ day of __________________________, 2023.

MICHAEL B. NORTH

UNITED STATES MAGISTRATE JUDGE

7 Dowdell

This Court specifically makes no finding as to whether any of Plaintiff’s unexhausted claims would now be

tiSmeeel syu bperfaore the EEOC or this Court. , 2020 WL 5095274, at *2 n.26.

8

n.3.