Thompson v. East Feliciana School System

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LYTOSHIA 8 THOMPSON CIVIL ACTION

VERSUS

EAST FELICIANA SCHOOL SYSTEM, NO. 19-00840-BAJ-RLB

ET AL,

RULING AND ORDER

Before the Court are Defendants East Feliciana Parish School Board and

Carlos Sam’s Motions for Summary Judgment (Doc. 31; Doc. 35), The Motions are

opposed. (Doc. 43; Doc. 44). Defendants filed Replies. (Doc. 46; 47). For the reasons

stated herein, Defendant East Feliciana Parish School Board’s Motion for Summary

Judgment is GRANTED. Defendant Carlos Sam’s Motion for Summary Judgment is

DENIED as moot.

1. FACTS

Plaintiff sues the Kast Feliciana Parish School Board (hereinafter “Board”) and

Carlos J. Sam (hereinafter “Sam”), Superintendent of Schools, based on alleged

sexual harassment, retaliatory discharge, denial of due process, and battery.

(Doc. 1; Doc. 5; Doc. 31-1, |] 1-2, 5; Doc. 44-1, J] 1-2, 5).

Plaintiff was hired by Board on September 14, 2018. (Doc. 31-1, { 3;

Doc. 44-1, 3). Plaintiffs job title was “Confidential Assistant to the

Superintendent,” Sam. (Ud.). Sam was Plaintiffs supervisor. (Doc. 31-1, { 6;

Doc, 44-1, 4 6).

During her employment, Plaintiff texted Sam multiple times in the evening

hours regarding her personal life. (Doc. 31-1, | 8; Doc. 44-1, € 8). Additionally,

Plaintiff contacted Sam regarding an incident where Plaintiff was accused of calling

another employee a “bitch.” (Doc. 31-1, § 7; Doc. 44-1, | 7). Sam instructed Plaintiff

to contact Human Resources. (/d.). Plaintiff complied. (/d.).

On February 4, 2019, Plaintiff requested to attend an out-of-state training in

Chicago, which cost $3,800.00. (Doc. 31-1, ¥ 9; Doc. 44-1, § 9). Board denied approval

of this training. (/d.). On February 5, 2019, Plaintiff requested to attend a Photoshop

course at LSU. (Doc. 31-1, 10; Doc. 44-1, | 10). Board also denied approval of this

training. (id).

On February 5, 2019, Plaintiff emailed Keisha Netterville, Executive Director

of Human Resources, requesting a discussion regarding courses that she would like

to attend. (Doc. 31-1, § 11; Doc. 44-1, 9 11). Plaintiff did not mention sexual

harassment in this email. (d.).

On February 7, 2019, Sam instructed Plaintiff to report to SSA Consultants on

February 8, 2019, at 8:00 A.M. for a professional development and training session.

(Doc. 31-1, | 12; Doc. 44-1, § 12). Sam instructed Plaintiff to be prompt and prepared

to stay all day. Ud.). Plaintiff reported to SSA Consultants on February 8, 2019, but

objected to part of the training session and left an hour after arriving. (Doc. 31-1, § 13;

Doc. 44-1, | 18). After leaving the training session, Plamtiff did not return to work.

! The Court notes that Plaintiff seeks to strike Board’s statement. The statement is deemed

admitted, however, for failure to comply with the Local Rules. See Local Civil Rule 66.

(Doc. 31-1, | 14; Doc. 44-1, 14). Plaintiff was suspended on February 11, 2019.

(Doe. 31-1, { 15; Doc. 44-1, J 15).

On February 12, 2019, Sam notified Plaintiff that he was contemplating

undertaking disciplinary action against Plaintiff for failing to complete mandated

training.? (Doc. 31-1, 16; Doc. 44-1, | 16). Sam also informed Plaintiff that she had

the opportunity to respond. (Ud.). Plaintiff emailed a response to Sam, Netterville,

and the Board president providing her position on the training and requesting a

“status” on her employment. (/d.). Plaintiff did not mention sexual harassment in her

email. (Ud.).

On March 14, 2019, Sam placed Plaintiff on leave without pay and

recommended her termimation. (Doc. 31-1, { 17; Doc. 44-1, § 17). The stated reason

was insubordination for failure to attend a purported mandated professional

development and training as directed by Sam. (/d.). Sam informed Plaintiff of this

recommendation by letter. Ud.). The letter stated that Plaintiff could attend the

April 2, 2019 Board meeting and elect to have a discussion regarding Sam’s

recommendation in either “open or executive session.” (/d.).

On March 26, 2019, Plaintiff emailed Sam requesting that he reconsider his

decision to place her on leave without pay. (Doc. 31-1, {| 18; Doc. 44-1, J 18). If he

could not or would not reconsider his recommendation, Plaintiff requested a closed

session hearing. (/d.). Later that day, Sam replied to Plaintiffs email stating that he

2'The Court notes that Plaintiff seeks to strike Board’s statements contained in Paragraph 16

of Board’s Statement of Uncontested Material Facts. (Doc. 31-1, { 16; Doc. 44-1, § 16). The

statement is deemed admitted, however, for failure to comply with the Local Rules.

See Local Civil Rule 56,

would inform the Board that Plaintiff wished to have the recommendation considered

in private and invited Plaintiff to send any additional information for consideration.

(Doc. 31-1, | 19; Doc. 44-1, J 19).

Plaintiff had a termination hearing during the April 2, 2019 Board meeting in

executive session in accordance with her request. (Doc. 31-1, € 20; Doc. 44-1, 20).

Plaintiff spoke at the termination hearing. (Doc. 31-1, { 21; Doc. 44-1, 4 21). Plaintiff

did not mention any allegations of sexual harassment during her termination

hearing.’ (Doc. 31-1, 4 24; Doc. 44-1, § 24). Plaintiff was discharged on April 2, 2019

following the hearing. (Doc. 31-1, | 22; Doc. 44-1, { 22). The stated reason for

Plaintiffs discharge was failure to attend a purported mandated professional

development and training session. (Doc. 31-1, {[ 28; Doc. 44-1, { 28).

Il. LEGAL STANDARD

A court may grant summary judgment only “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). A dispute regarding a material fact is “genuine”

if the evidence 1s such that a reasonable jury could return a verdict in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When

ruling on motions for summary judgment, courts are required to view all inferences

drawn from the factual record in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Coleman

v. Hous. Indep. School Dist., 113 F.8d 528, 533 (th Cir. 1997).

Court notes that Plaintiff seeks to strike Board’s statement. The statement is deemed

admitted, however, for failure to comply with the Local Rules. See Local Civil Rule 56.

To survive summary judgment, however, the nonmoving party must do more

than allege an issue of material fact: “Rule 56(e) .. . requires the nonmoving party to

go beyond the pleadings and by her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is

a genuine issue for trial.” Auguster v. Vermilion Par. Sch. Bd., 249 F.8d 400, 402

(5th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). “Rule 56

does not impose upon the district court a duty to sift through the record in search of

evidence to support a party’s opposition to summary judgment.” Ragas v.

Tenn. Gas Pipeline Co., 186 F.3d 455, 458 (5th Cir. 1998) (citations and quotation

marks omitted). A party that fails te present competent evidence opposing a motion

for summary judgment risks dismissal on this basis alone. E.g., Broussard v.

Oryx Energy Co,, 110 F. Supp. 2d 532, 536 (E.D. Tex. 2000) (‘Plaintiff produced no

genuine issue of material fact to prevent the granting of [Defendant’s] Motion, and

therefore, the Court could grant [Defendant’s] Motion for Summary Judgment on this

basis alone.”).

iI. DISCUSSION

Defendants Board and Sam move for summary judgment, arguing that there

are no genuine issues of material fact and Defendants are entitled to judgment as a

matter of law. (Doc. 31; Doc. 35). Board argues that summary judgment is warranted

regarding Counts I, II, and IV in Plaintiffs Amended Complaint—Plaintiffs claims

against Board for sexual harassment, retaliatory discharge, and denial of due process.

(Doc. 31; Doc. 5). Sam seeks summary judgment regarding Count IJ]—Plaintiffs

claim for “batteries” against Sam. The Court will address each Motion in turn,

beginning with Board. (Dec. 35; Doc. 5).

a. Board’s Motion for Summary Judgment (Doe. 31)

i. Count IHK*Sexual Harassment”

First, Title VII of the Civil Rights Act of 1964 makes it “an unlawful

employment practice for an employer . . . to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because

of such individual's race, color, religion, sex, or national origin.” Hooge v.

Union Pae. RR. Co., No. CV 18-1112-SDD-RLB, 2020 WL 38067219, at *7

(M.D. La. June 9, 2020) (citing 42 U.S.C. § 2000e—2(a)(1)). Sexual harassment is a

form of sex discrimination. Jd. The Supreme Court has recognized two types of sexual

harassment claims: (1) “quid pro quo” claims, based on requests for sexual favors that

result in adverse employment actions; and (2) hostile work environment claims, in

which bothersome attentions or sexual remarks create a hostile work environment.

id. (citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998)). Hach type of sexual harassment claim requires a distinct

analysis. See Casiano v. AT&T Corp., 213 F.3d 278, 283 (5th Cir, 2000).

1. Classification of Case as “Quid Pro Quo” or

“Hostile Environment”

The Court must first determine whether this is a “quid pro quo” or “hostile

environment” case. Casiano, 213 F.3d at 283. Plaintiff did not allege either

classification in her Complaint. (Doc. 5). Plaintiff argues in her Opposition, however,

that Board is not entitled to the Ellerth/Faragher affirmative defense, implying that

Plaintiff believes this is a quid pro quo case.* (Doc. 46).

To determine whether this case is a quid pro quo or hostile environment case,

the Court must ascertain whether Plaintiff suffered a “tangible employment action.”

Castano, 213 F.3d at 283 (citing Herth, 524 U.S. at 761-62). Tangible employment

actions “require[ |] an official act of the enterprise, a company act,” such as “hiring,

firing, failing to promote, reassignment with significantly different responsibilities,

or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761-62. If

Plaintiff has suffered a tangible employment action, her suit is classified as a quid

pro quo case.5 Castano, 213 F.3d at 283. If Plaintiff has not suffered a tangible

employment action, her suit is classified as a hostile environment case.® Id.

Here, Board terminated Plaintiff. (Doc. 81-1, § 22; Doc. 44-1, § 22).

Termination is a tangible employment action. Casiano, 213 F.3d at 288: see also

4 The Hllerth/Faragher affirmative defense provides that an employer may avoid vicarious

liability for a supervisor’s sexual harassment if the employer can prove the following:

“[albsent a tangible employment action, (1) the employer exercised reasonable care to prevent

and correct promptly any such sexual harassment, and (2) the employee unreasonably failed

to take advantage of any preventative or corrective opportunities provided by the employer

or to avoid harm otherwise.” Casiano v. AT&T Corp,, 213 F.3d 278, 284 (5th Cir. 2000).

“[T]his is the employer's only affirmative defense in a supervisor sexual harassment case post

illerth/Faragher, and it is available only in a hostile environment (no tangible employment

action) situation; never in a quid pro quo (tangible employment action) case.” Jd.

5 If Plaintiff can establish a “quid pro quo” case by showing that the “tangible employment

action suffered by the employee resulted from his acceptance or rejection of his supervisor's

alleged sexual harassment,” her employer is “vicariously liable per se and is not entitled to

assert the one and only affirmative defense permitted in such cases since Hllerth and

Faragher.” Casiano v. AT&T Corp., 213 F.3d 278, 288-84 (5th Cir. 2000).

Tn a “hostile environment” case, the employer may assert the Ellerth/Faragher affirmative

defense. Castano v. AT&T Corp., 218 F.3d 278, 284 (5th Cir. 2000).

Ellerth, 524U.S. at 761-62 (tangible employment actions include “firing”).

Accordingly, this is a quid pro quo case. See Casiano, 213 F.3d at 288.

2. Quid Pro Quo Analysis

In a quid pro quo case, the Court must determine whether the tangible

employment action Plaintiff suffered resulted from her “acceptance or rejection of

[her] supervisor's alleged sexual harassment.” Casiano, 218 F.3d at 284 (citing

Ellerth, 524 U.S, at 753-54). If Plaintiff cannot show such a nexus, her employer is

not vicariously liable under Title VII for sexual harassment by a supervisor. Casiano,

213 F.3d at 284. If Plaintiff can demonstrate such a nexus, however, her employer is

vicariously liable per se and is not entitled to assert the one and only affirmative

defense permitted in such cases since Ellerth and Faragher. Id. at 283-84 (citing

Ellerth, 524 U.S. at 753, 761, 762, 765) (“[A] tangible employment action taken by the

supervisor becomes for Title VII purposes the act of the employer.”); Faragher,

524 U.S. at 804-05, 808). “In other words, proof that a tangible employment action

did result from the employee's acceptance or rejection of sexual harassment by his

supervisor makes the employer vicariously liable, ipso facto; no affirmative defense

will be heard.” Castano, 213 F.3d at 284.

In the instant case, Plaintiff failed to allege that her termination was a result

of her acceptance or rejection of Sam’s alleged sexual harassment. (See Doc. 5). To

survive summary judgment, Plaintiff must do more than allege an issue of material

fact: “Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by

her own affidavits, or by the depositions, answers to interrogatories, and admissions

on file, designate specific facts showing that there is a genuine issue for trial.”

Auguster v. Vermilion Par. Sch. Bd., 249 F.8d 400, 402 (5th Cir. 2001) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Not only did Plaintiff fail to allege

a key material fact, Plaintiff also failed to point to record evidence establishing that

her termination resulted from her acceptance or rejection of Sam’s alleged sexual

harassment. (See Doc. 46--Doc. 46-1). Plaintiffs omission is fatal to her sexual

harassment claim against Board. See Broussard v. Oryx Energy Co.,

110 F. Supp. 2d 532, 536 (E.D. Tex. 2000) (a party that fails to present competent

evidence opposing a motion for summary judgment risks dismissal on this basis

alone); see also Ragas v. Tenn. Gas Pipeline Co., 186 F.8d 455, 458 (5th Cir. 1998)

(Rule 56 does not impose upon the district court a duty to sift through the record in

search of evidence to support a party’s opposition to summary judgment.”).

Because Plaintiff failed to show that her termination resulted from her

acceptance or rejection of Sam’s alleged sexual harassment, Board is not vicariously

liable under Title VII for Sam’s alleged sexual harassment. Casiano, 213 F.3d at 284.

Summary judgment is granted regarding Count I. Plaintif? s sexual harassment claim

against Board is dismissed.

li. Count II-—-"Retaliatory Discharge”

Second, Title VII makes its unlawful for any employer to retaliate against an

employee for bringing a charge under Title VII. Combs □□□

Exxon Mobile Corp., No. CIV.A. 04-151-C, 2007 WL 3358504, at *A

(M.D. La. Nov. 7, 2007) (citing 42 U.S.C. § 2000e-3(a)). Retaliation claims based on

circumstantial evidence are reviewed under the burden-shifting framework

established in McDonnell Douglas Corporation vu. Green. See Robinson v.

dackson State Univ., 714 F. App’x 354, 359 (th Cir. 2017) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1978)).

Under the McDonnell Douglas framework, Plaintiff must establish a

prima facie case of retaliation, Combs, 2007 WIL 3353504, at *4 (citing Septimus uv.

Univ. of Hous., 399 F.3d 601, 607 (6th Cir. 2005)). To establish a prima facie case,

Plaintiff must show the following: (1) Plaintiff “engaged in protected activity”;

(2) Plaintiff “suffered from an adverse employment action”; and (3) “there was a

causal connection between the activity and the adverse employment decision.”

Robinson, 714 F. App'x at 359.

If Plaintiff establishes a prima facie case, then a presumption of discrimination

arises and the burden shifts to Board to articulate—but not prove—a legitimate

nondiscriminatory reason for the adverse employment action. Combs,

2007 WL 3353504, at *4 (citing Evans v. City of Hous., 246 F.8d 344, 350

(5th Cir. 2001)). If Board meets its burden of production, then the presumption of

intentional discrimination is rebutted and the burden shifts back to Plaintiff to show

that the reason proffered by Board is merely pretext for discrimination. Combs,

2007 WL 8353504, at *4 (citing Huans, 246 F.3d at 350),

1. Prima Facie Case

In the instant case, Board asserts that Plaintiff cannot establish her prima

facie case. (Doc. 31-2, p. 1). Specifically, Board contends that Plaintiff cannot

10

establish that she engaged in a protected activity or that she was fired because she

reported sexual harassment. (Ud. at p. 17). Rather, Board argues that Plaintiff was

fired for insubordination—a legitimate, nondiscriminatory reason for Plaintiffs

termination. Ud.). Board also contends that Plaintiff cannot bear her burden of

showing that Board’s offered reason for termination is a pretext for discrimination.

(id. at p. 18).

To succeed with her retaliation claim, Plaintiff must first establish her

prima facie case. Robinson, 714 F. App'x at 359.

a. Protected Activity

To satisfy the first prong of her prima facie case, Plaintiff must establish that

she engaged in a “protected activity.” See Robinson, 714 F. App'x at 359. Under

Title VII, an employee has engaged in protected activity if she has either: (1) “opposed

any practice made an unlawful employment practice by this subchapter,” or (2) “made

a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.” Byers v. Dall. Morning News, Inc.,

209 F.3d 419, 427-28 (5th Cir. 2000) (citing 42 U.S.C. § 2000e—3(a)). An employee

who files an internal complaint of discrimination engages in a protected activity.

Rodriquez v. Wal-Mart Stores, Inc., 540 F. App'x 322, 328 (5th Cir, 2013). “While

opposition to discrimination need not be in formal written form, internal complaints

must reference discrimination or other unlawful employment activity in order to be

protected.” Willis v. Napolitano, 986 F, Supp. 2d 738, 748 (M.D. La. 20183),

aff'd sub nom. Willis v. ULS., 576 F. App'x 340 (5th Cir. 2014).

1i

Here, relying solely on her own Declaration, Plaintiff argues that she engaged

in a protected activity by reporting Sam’s alleged sexual harassment to Lilian Drake,

a Board member. (Doc. 5, 19; Doc. 44, p. 14-15; Doc. 44-1, J 7). Contrarily, Drake

testified in her deposition that she believed Plaintiff felt harassed by Board’s denial

of Plaintiffs requests to attend certain trainings. (Doe. 32-3, p. 23:9-20), Drake denied

knowledge of “any other source of harassment.” (Ud. at p. 23:17-20). In short, Plaintiff

attests that she reported Sam’s alleged sexual harassment to Drake, a protected

activity; Drake denied knowledge of such a report.

Accordingly, there is a factual dispute regarding whether Plaintiff reported the

alleged sexual harassment to Drake. Assuming Plaintiff did report the alleged sexual

harassment to Drake, the Court is unable to determine from the record whether

Plaintiffs verbal report contained sufficient references to discrimination or other

unlawful employment activity to constitute an “internal complaint,” and therefore, a

protected activity. See Willis, 986 F. Supp. 2d at 748. Assuming arguendo that

Plaintiff engaged in a protected activity, however, Plaintiffs prima facie case fails for

other reasons.

b. Adverse Employment Action

To satisfy the second prong of her prima facie case, Plaintiff must establish

that she suffered an adverse employment action. See Robinson v. Jackson State Univ.,

714 F. App'x 354, 359 (6th Cir. 2017). Here, it is undisputed that Board terminated

Plaintiff. (Doc. 31-1, {| 22; Doc. 44-1, 4 22). Termination is an adverse employment

action. McCoy v. City of Shreveport, 492 F.8d 551, 559 (5th Cir. 2007) (“We have

12

historically held that, for all Title VIJ claims, ‘[a]dverse employment actions include

only ultimate employment decisions such as hiring, granting leave, discharging,

promoting, or compensating.”). Plaintiff has satisfied the second prong of her

prima facie case,

c. Causal Connection

To satisfy the third prong of her prima facie case, Plaintiff must establish that

there was a causal connection between her alleged report of Sam’s sexual harassment

and her termination. See Robinson, 714 F. App'x at 359. For the reasons set forth

below, Plaintiff cannot bear her burden of establishing causation.

The Supreme Court has held that Title VII retaliation claims must be proved

according to traditional principles of but-for causation. Willis v. Napolitano,

986 F.Supp. 2d 738, 748 (M.D. La. 2013), aff'd sub nom. Willis v. U.S,

576 F. App'x 340 (5th Cir. 2014) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 358-360, 188 S. Ct. 2517, 2532-88, 186 L. Ed. 2d 503 (2013)). “In other

words, a plaintiff must show that the unlawful retaliation would not have occurred

in the absence of the alleged wrongful action or actions of the employer.” Willis,

986 F.Supp. 2d at 748 (citing Nassar, 570 U.S. at 360). The Fifth Circuit has

interpreted this but-for standard to apply to Plaintiffs burden of establishing a

prima facie retaliation case. Willis, 986 F.Supp. 2d at 748 (citing Finnie v.

Lee Cty., Miss., 541 F. App'x 368, 371-72 (5th Cir. 2013) (“To meet the third prong [of

a prima facie case], Nassar requires that Finnie provide sufficient evidence to allow

a reasonable juror to conclude that her filing of an EEOC claim was the “but-for”

13

cause of her termination, and that, had she not filed the claim, she would have

remained in her position at the Lee County Detention Center.”).

Here, Plaintiff sets forth two theories to establish a causal connection between

her alleged protected activity and termination: (1) temporal proximity; and

(2) constructive knowledge. The Court will address each in turn.

First, citing cases that are nonbinding on the Court, Plaintiff argues that

temporal proximity establishes causation. (Doc. 44, p. 15). Plaintiff contends that she

reported Sam’s conduct to Drake on February 5, 2019. (Doc. 5, 19). Plaintiff alleges

that she was suspended on February 11, 2019 and discharged on April 2, 2019.

(id. at {| 28, 30). Plaintiff ignores, however, the remainder of the events that

occurred during this timeframe:

e On February 4, 2019, Plaintiff requested to attend an out-of-state

training, which the Board dented. (Doe. 31-1, 9; Doc. 44-1, f 9).

On February 5, 2019, Plaintiff requested to attend a Photoshop course

at LSU, which the Board denied. (Doc. 31-1, 10; Doc. 44-1, § 10).

¢ On February 5, 2019, Plaintiff emailed Netterville, Executive Director

of Human Resources, requesting a discussion regarding courses that she

would like to attend. (Doc. 31-1, { 11; Doc. 44-1, { 11). Plaintiff did not

mention sexual harassment in this email. (/d.).

« On February 7, 2019, Sam instructed Plaintiff to report to SSA

Consultants on February 8, 2019, at 8:00 A.M. for professional

development and training. (Doc. 31-1, 12; Doc. 44-1, § 12). Sam

14

instructed Plaintiff to be prompt and to be prepared to stay all day. (d.).

e On February 8, 2019, Plaintiff reported to SSA Consultants, but

objected to part of the training and left an hour after arriving.

(Doc, 31-1, | 18; Doc. 44-1, J 18). After leaving the training, Plaintiff did

not return to work. (Doc. 31-1, { 14; Doc. 44-1, | 14).

« On February 11, 2019, Plaintiff was suspended. (Doc. 31-1, 15;

Doc. 44-1, 4] 15).

« On February 12, 2019, Sam notified Plaintiff that he was contemplating

undertaking disciplinary action against Plaintiff for failing to complete

mandated training. (Doc. 31-1, | 16; Doc. 44-1, | 16). Sam also informed

Plaintiff that she had the opportunity to respond. (/d.). Plaintiff emailed

a response to Sam, Netterville, and the Board president providing her

position on the training and requesting a “status” on her employment.

(d.). Plaintiff did not mention sexual harassment in her email. (/d.).

¢ On March 14, 2019, Sam placed Plaintiff on leave without pay and

recommended her termination. (Doc. 31-1, § 17; Doc. 44-1, { 17). The

stated reason was insubordination for failure to attend a purported

mandated professional development and training session as directed by

Sam. (d.). Sam informed Plaintiff of this recommendation by letter.

(d.). The letter stated that Plaintiff could attend the April 2, 2019 Board

meeting and elect to have a discussion regarding Sam’s recommendation

in either “open or executive session.” (fd.).

15

« On March 26, 2019, Plaintiff emailed Sam requesting that he reconsider

his decision to place her on leave without pay. (Doc. 31-1, 18;

Doc. 44-1, § 18). Tf be could not or would not reconsider his

recommendation, Plaintiff requested a closed session hearing. (/d.).

Later that day, Sam replied to Plaintiffs email stating that he would

inform the Board that Plaintiff wished to have the recommendation

considered in private and invited Plaintiff to send any additional

information for consideration. (Doc. 31-1, § 19; Doc. 44-1, § 19).

¢ On April 2, 2019, Plaintiff had a termination hearing during the Board

meeting in executive session in accordance with her request.

(Doc. 31-1, J 20; Doc. 44-1, | 20). Plaintiff spoke at the termination

hearing. (Doc. 31-1, J 21; Doc. 44-1, § 21). Plaintiff did not mention any

allegations of sexual harassment during her termination hearing.

(Doc. 31-1, § 24; Doc, 44-1, ¥ 24).

« Also on April 2, 2019, following the hearing, Plaintiff was discharged.

(Doc. 81-1, | 22; Doc. 44-1, | 22). The stated reason for Plaintiffs

discharge was failure to attend a purported mandated professional

development and training session. (Doc. 31-1, § 23; Doc. 44-1, { 23).

Viewmg the facts in context with the other events that occurred during the

timeframe at issue, Plaintiff has failed to establish that “but for” her alleged report

to Drake, she would not have been terminated. The Fifth Circuit has held that

“temporal proximity between protected activity and alleged retaliation is sometimes

16

enough to establish causation at the prima facie stage.” Hernandez ov.

Metro. Transit Auth. of Harris Cty., 673 F. App'x 414, 420 (5th Cir. 2016) (emphasis

added) (citing Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs,

810 F.3d 940, 948 (5th Cir. 2015)). The Fifth Circuit has also held, however, that the

“purden has now shifted to a heightened standard of ‘but-for’ causation, for which

temporal proximity, without more, will not suffice.” Hernandez, 673 F. App'x at 420

(emphasis added) (citing Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808

(5th Cir. 2007)). In the present case, temporal proximity alone is insufficient to

establish “but for” causation.

Second, Plaintiff contends that Sam had constructive knowledge of Plaintiffs

alleged complaint to Drake because of his varied behavior and close relationship with

Drake. (Doc. 44, p. 9-12).

The causation prong of any retaliation claim requires proof that the “employer

knew about the employee's protected activity.” Robinson, 714 F. App'x at 860 (citing

Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003)). The rationale is a

simple one: “Ifan employer is unaware of an employee's protected conduct at the time

of the adverse employment action, the employer plainly could not have retaliated

against the employee based on that conduct.” Robinson, 714 F. App'x at 360 (citing

Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.8d 164, 168 (5th Cir. 1999)).

The Fifth Circuit has declared that “[a] decisionmaker's awareness may be

established by circumstantial evidence.” Robinson, 714 F. App'x at 360 (citing

BLELO.C. v. EmCare, Inc., 857 F.8d 678, 683 (5th Cir. 2017)). “But carrying that

17

burden requires more evidence than mere curious timing coupled with speculative

theories, and isolated evidence of generalized discussions between a decisionmaker

and someone with knowledge of the plaintiff's protected activity creates only a

speculative inference regarding the decisionmaker's awareness.” Robinson,

714 F. App'x at 860 (citing EmCare, Inc., 857 F.8d at 683) (internal quotations

omitted).

The Fifth Circuit has aiso held that “general corporate knowledge” is

insufficient, but rather, “[the Fifth Circuit has] consistently required proof of ‘actual

decisionmaker knowledge.” Robinson, 714 F. App'x at 360 (citing Beattie v.

Madison Cty. Sch. Dist., 254 F.3d 595, 604 (5th Cir. 2001)). “Whatever the law may

be elsewhere, mere ‘constructive notice’ does not suffice in this circuit.” Robinson,

714 F. App'x at 360 (citing Corley v. Jackson Police Dep't, 639 F.2d 1296, 1300 n.6

(5th Cir. 1981)).

Here, Plaintiff argues the following: (1) Sam lingered after a Board meeting

while Plaintiff was talking with Drake instead of leaving directly after a meeting;

(2) Sam denied three training requests by Plaintiff and ordered Plaintiff to attend

training; and (3) Sam switched from praising her work at two Board meetings and

occasionally complimenting her to ordering a surprise personality test.

(Doe. 44, p. 9-12). Plaintiff also urges the Court to infer Sam’s knowledge of Plaintiff's

alleged protected activity because of his “apparent close relationship” with Drake.

Ud. at p. 12).

Plaintiffs arguments, without more, are insufficient to establish “but for”

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causation, but rather, amount to speculative inferences of decisionmaker knowledge.

Courts have repeatedly rejected speculative inferences of decisionmaker knowledge.

See Robinson, 714 F. App'x at 360 (citing Turner v. Jacobs Eng'g Grp., Inc.,

470 F. App’x. 250, 253 (5th Cir. 2012) (per curiam) (rejecting inference of

decisionmaker knowledge from the decisionmaker's single negative comment and

general conversations between the decisionmaker and other knowledgeable

employees); Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168-69

(Sth Cir. 1999) (rejecting inference of decisionmaker knowledge from a supervisor's

single curious comment when the employee never told anyone at his place of

employment about his protected activity and two years elapsed before his

termination); compare EmCare, 857 F.3d at 684 (affirming decisionmaker-knowledge

finding when (1) a supervisor criticized the employee following each complaint; (2) the

supervisor worked in the same division as the decisionmaker; (3) the supervisor and

decisionmaker discussed the employee's performance; and (4) the decisionmaker fired

the three complaining employees on the same day); Ellerbrook v. City of Lubbock,

FP. App’x. 324, 332-33 (th Cir. 2012) (per curiam) (affirming

decisionmaker-knowledge finding when a supervisor with knowledge of the protected

activity discussed with the decisionmaker how to interview the plaintiff).

Because Plaintiff has failed to establish a causal connection between her

alleged protected activity--reporting sexual harassment to Drake—and her

termination, Plaintiff has failed to establish a prima facie case. Accordingly,

summary judgment is granted in Board’s favor regarding Count II, Plaintiffs

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retaliatory discharge claim.

ii. Count IV—'Denial of Due Process”

Finally, the Court turns to Plaintiffs “denial of due process” claim.

1. Procedural Due Process

In her Opposition to Board’s Motion, Plaintiff “concedes” her procedural due

process claim.’ (Doc. 44, p. 5). Accordingly, summary judgment will be granted in

Board's favor regarding Plaintiffs procedural due process claim. (/d.).

2. Substantive Due Process

“To succeed with a claim based on substantive due process in the public

employment context, the plaintiff must show two things: (1) that [s]he had a property

interest/right in his employment, and (2) that the public employer's termination of

that interest was arbitrary or capricious.” Lewis v. Univ. of Tex. Med. Branch at

Galveston, 665 F.8d 625, 630-31 (5th Cir. 2011) (citing Moulton v. Cty. of Beaumont,

99] F.2d 227, 230 (5th Cir. 1993)).

Plaintiff must first establish a property interest in her employment. See

Lewis, 665 F.3d at 630-31. To determine if an individual has a property interest in

her employment, courts look to Louisiana state and local law. Dunn v. Strain,

No. CIV.A. 04-2354, 2005 WL 3543778, at *4 (E.D. La. Oct. 19, 2005) (citing Cabrol

vu. Town of Youngsville, 106 F.3d 101, 106 (5th Cir. 1997). Here, Plaintiff was

employed in Louisiana. (Doc. 46, p. 8).

Louisiana recognizes the doctrine of “employment at will’ and, absent a

7 The Court interprets Plaintiffs statement as an abandonment of her procedural due process

claim,

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contractual relationship, the reasons for termination need not be accurate, fair or

reasonable. Huang v. La. State Bd. of Tr. for the State Coll. and Univ.,

1999-2805 (La. App. Ist Cir. 12/22/00), 781 So. 2d 1, 11. “Absent a contractual

agreement for employment for a specified term or a legislative or regulatory restraint

on a public entity's termination authority, Louisiana law does not establish a right to

continued employment.” Dunn, 2005 WL 3548778, at *4 (citing Cabrol,

106 F.3d at 106). Here, Plaintiff has failed to establish the existence of a written

contractual agreement or legislation vesting her with a property interest in her

continued employment. See Dunn, 2005 WL 3543778, at *4.

Instead, Plaintiff argues that a property interest arose from Sam’s offer to

Plaintiff for an “opportunity for a hearing...” and Plaintiffs acceptance of same.

(Doc. 44, p. 22-23). Because the Board held a hearing prior to terminating Plaintiff,

Plaintiff contends that the Board implicitly recognized Plaintiff's property interest in

her employment and created a “contract for a due process hearing” with Plaintiff.

(id.). Plaintiff notes: “No on point case could be found via WestLaw Nevertheless, this

contention [sic] seems sound.” Ud. at p. 23).

Contrarily, Board asserts that no property interest existed between Plaintiff

and Board for the following reasons: (1) Louisiana is an at-will employment state and

does not establish a right to continued employment; (2) Plaintiff was subject to

dismissal by Board upon the written recommendation of Sam, as stated in the

Employee Handbook; and (8) there was no understanding between Plaintiff and

Board which created a property interest. (Doc. 31-2, p. 18). Specifically, Board argues

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it did not have a “meeting of the minds” with Plaintiff such that that Plaintiff

acquired a property interest; rather, Plaintiffs argument relies on nonbinding

authority. (Doc. 46, p. 8). The Court agrees.

Plaintiff has failed to point to a written contract, law, or case that supports her

argument. Additionally, Plaintiff has failed to establish a particularized mutual

understanding between Plaintiff and Board such as to create an implied contract for

a property interest im employment. See Muncy v. City of Dallas, Tex.,

335 F.3d 394, 398 (Sth Cir. 2003). Again, a party that fails to present competent

evidence opposing a motion for summary judgment risks dismissal on this basis

alone. See Broussard v. Oryx Energy Co., 110 F. Supp. 2d 582, 536 (B.D. Tex. 2000).

Because Plaintiff has failed to establish a property interest in her employment,

the Court need not determine whether Board’s termination of Plaintiffs interest was

arbitrary or capricious. See Lewis v. Univ. of Tex. Med. Branch at Galveston,

665 F.3d 625, 680-31 (6th Cir. 2011). Summary judgment is granted in Board’s favor

regarding Count IV. Plaintiffs substantive due process claim is dismissed. (Doc. 31).

b. Sam’s Motion for Summary Judgment (Doc. 35)

i. Count III—"Batteries by Sam”

Because the Court has dismissed Plaintiffs claims against Board, the only

remaining claims are Plaintiffs state law tort claims against Sam. (See Doc. 5,

“Count 3-Batteries by Sam”). The Court, however, declines to exercise supplemental

jurisdiction over Plaintiffs state law tort claims against Sam because it has dismissed

all claims over which it had original jurisdiction. See 28 U.S.C.A. § 1367(c)(3) (“The

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district courts may decline to exercise supplemental jurisdiction over a claim under

subsection (a) if... the district court has dismissed all claims over which it has

original jurisdiction.”). Accordingly, Plaintiffs claims against Sam are dismissed

without prejudice. Sam’s Motion for Summary Judgment is denied as moot. (Doc. 35).

IV. CONCLUSION

IT IS ORDERED that Defendant East Feliciana School Board’s Motion for

Summary Judgment (Doe. 31) is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs claims against Board are

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs claims against Sam are

DISMISSED WITHOUT PREJUDICE. The Court has dismissed all claims over

which it had original jurisdiction and declines supplemental jurisdiction over

Plaintiffs state law tort claims against Sam.

IT IS FURTHER ORDERED that Defendant Carlos Sam’s Motion for

Summary Judgment (Doc. 35) is DENIED as MOOT.

IT IS FURTHER ORDERED that Plaintiffs Motion For Leave File

Sur-Reply To Board’s Reply (Doc. 48) is DENIED.

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IT IS FURTHER ORDERED that Plaintiffs Motion For Leave File

Sur-Reply To Sam’s Reply (Doc. 49) is DENIED.

_ 29h

Baton Rouge, Louisiana, this day of July, 2021

JUDGE wind Sa

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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