Daniel v. Board of Supervisors of Louisiana State University and A & M College

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ANNIE J. DANIEL CIVIL ACTION

VERSUS NO. 20-81-SDD-SDJ

BOARD OF SUPERVISORS OF

LOUISIANA STATE UNIVERSITY

AND A&M COLLEGE

RULING

Pending before the Court is the Motion for Summary Judgment1 filed by Defendant,

the Board of Supervisors of Louisiana State University and Agricultural & Mechanical

College (“LSU”). Plaintiff, Dr. Annie J. Daniel (“Plaintiff” or “Dr. Daniel”), filed an

Opposition2 to this motion, to which LSU filed a Reply.3 LSU also filed a Supplemental

Motion for Summary Judgment.4 For the reasons that follow, LSU’s Motion shall be

granted.

I. STATEMENT OF UNDISPUTED MATERIAL FACTS

Before setting forth the specific facts at issue in this case, the Court notes that

Local Rule 56(f) provides:

Facts contained in a supporting or opposing statement of material facts, if

supported by record citations as required by this rule, shall be deemed

admitted unless properly controverted. An assertion of fact set forth in a

statement of material facts shall be followed by a citation to the specific

page or paragraph of identified record material supporting the assertion.

1 Rec. Doc. No. 15.

2 Rec. Doc. No. 22.

3 Rec. Doc. No. 37.

4 Rec. Doc. No. 20.

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The court may disregard any statement of fact not supported by a specific

citation to record material properly considered on summary judgment. The

court shall have no independent duty to search or consider any part of the

record not specifically referenced in the parties’ separate statement of facts.

When LSU filed its Statement of Material Facts Not at Issue,5 its assertions of fact were

not accompanied by citations to the record. For that reason, Dr. Daniel argues that LSU’s

alleged undisputed facts should be stricken for failure to comply with the local rule.6 LSU

disagrees, explaining that “Plaintiff overlooks the fact that the precise set of facts are set

forth fully in Defendant’s Memorandum in Support with the record citations duly noted.”7

Considering that the citations to the record were available alongside the identical factual

assertions made in the body of LSU’s Memorandum, and that LSU filed an amended

Statement that included record citations,8 the Court declines to impose the harsh sanction

of striking LSU’s Statement of Material Facts Not at Issue.9 Doing so would deem

admitted the facts set forth in Dr. Daniel’s Statement of Material Facts Genuinely in

Dispute, a result that is not warranted by what amounts to a clerical error, since corrected.

Accordingly, the Court will consider both parties’ Statements.

II. FACTUAL BACKGROUND10

On January 1, 2014, Dr. Annie J. Daniel began working at the Louisiana State

University School of Veterinary Medicine (“LSU SVM”) as a Clinical Track Associate

Professor of Veterinary Medical Education and as the Director of Veterinary Instructional

5 Rec. Doc. No. 15-2.

6 Rec. Doc. No. 22-1, p. 1.

7 Rec. Doc. No. 38, p. 1.

8 Rec. Doc. No. 38.

9 Rec. Doc. No. 15-2.

10 While the Court reviewed all of the briefs and exhibits, as well as Plaintiff’s Statement of Material Facts

Genuinely in Dispute and LSU’s Statement of Material Facts Not at Issue, this factual presentation focuses

primarily on those facts material to the Court’s Ruling.

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Design and Outcome Assessments.11 Though the position was a new one at LSU SVM,

Dr. Daniel was not new to the field, having previously been employed in similar capacities

at Des Moines University and at the Tulane University School of Medicine.12 Among Dr.

Daniel’s responsibilities at LSU SVM was “curriculum mapping,” which she describes as

using “an electronic database to document all of the elements of the curriculum” in order

to ensure that “each course, each lecture, has been aligned with . . . the learning

objectives, the assessment method, method of teaching, as well as the institutional

accreditation standards.”13 Dr. Daniel, a black woman, has a Ph.D in Education,14 but no

background in veterinary science.

When she started at LSU SVM, Dr. Daniel’s supervisor was Dr. Joseph Taboada,

a white man who was at that time the Associate Dean for Student and Academic Affairs.15

During the interview process, Dr. Daniel had spoken with Dr. Taboada on the phone, and

he asked her about her skills and job experience.16 Shortly after Dr. Daniel was hired, Dr.

Taboada visited her at her office. Dr. Daniel alleges that “out of the blue,” Dr. Taboada

said, “You know, I didn’t know you were black because you didn’t sound black on the

phone.”17 Dr. Daniel reports that she “just kind of ignored”18 the comment. Dr. Taboada

denies making the comment, asserting that “that never happened.”19

11 Rec. Doc. No. 22-5, p. 149 (Exhibit 1 to Deposition of Dr. Annie Daniel).

12 Rec. Doc. No. 22-5 (Deposition of Dr. Annie Daniel), p. 2, lines 16-18; Id. at p. 8, lines 12-14.

13 Id. at p. 10, lines 13-19.

14 Id. at p. 12, line 5.

15 Rec. Doc. No. 15-2, ¶ 3 and 5; Rec. Doc. No. 22-1, ¶ 1.

16 Rec. Doc. No. 22-5, p. 3, lines 18-20.

17 Id. at p. 17, lines 17-19.

18 Id. at line 21.

19 Rec. Doc. No. 20-3 (Deposition of Dr. Joseph Taboada), p. 16, lines 11-16.

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Dr. Daniel and Dr. Taboada occasionally discussed diversity at LSU SVM. Dr.

Taboada testified that he “talked a lot about black students” with Dr. Daniel, specifically

about “one of the problems that we have within the profession and within the school is

that we’re not a very diverse profession. So this is a big issue, is to try and increase

diversity within the profession.”20 Dr. Daniel agrees that she on several occasions “tried

to give [Dr. Taboada] recommendations on how to improve diversity, how to recruit, and

things like that.”21 Dr. Daniel alleges that, in one such conversation that took place within

a few months of her hiring, Dr. Taboada made a number of racist statements about black

students and the reasons for the lack of black students at LSU SVM. When she asked

Dr. Taboada why there were so few, he allegedly stated that “they,” meaning black

students, “don’t do well,”22 and told the story of a black student at LSU SVM who took

seven years to complete the program, which normally takes four years.23

On another occasion, in Dr. Daniel’s office in summer 2014, Dr. Daniel alleges that

Dr. Taboada said “Black people don’t expect their kids to go to college. . .[b]ecause they

don’t go to college themselves.”24 At some point, Dr. Taboada allegedly stated that

Southern University, a historically black college, is “academically weak” and that the

students who come to LSU SVM from there “do not do well.”25 In the context of discussing

Dr. Daniel’s planned recruiting trips to historically black colleges, Dr. Taboada allegedly

told her that, on a previous recruiting trip, he was told that “[b]lacks preferred for their

20 Id. at p. 16-17.

21 Rec. Doc. No. 22-5, p. 31, lines 5-8.

22 Id. at p. 21, lines 8-9.

23 Id. at p. 22, lines 12-24.

24 Id. at p. 21, lines 10-15.

25 Id. at p. 32 lines 13-20.

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students to go to med school, not vet school.”*° Similarly, he once allegedly cited his belief

that “African-American applicants would be burdened with student loans”2’ as a factor in

the low number of black students at LSU SVM. Dr. Daniel testified that she found all of

the above remarks to be racially offensive.2® She maintained a list of Dr. Taboada’s

remarks as she recalled them:°

Reasons Why LSU SVM Do Not Have More Black Students:

; We do not want to burden them down with student loans

2. me Blacks do not expect their kids to go to college

3. Black vithout ¢ e degrees ha ectation f

BI people without college degrees have no expectation for their

children to go to college

4. They are just not applying to our school

co thar rat welbar a :

° southern University students are nor academically strong enough

a _ : a o we

». Southern University has a weak animal science program, and their

students are not successful here

7. 1f they g0 to Tuskegee. t on!

Licey 20 lO Luskegee, they don't pay out of state tuition

They do not have any pre vet school veterinary medicine experiences

. 1 was told by reps at Grambling University that they send their students to

med school not vet schoo!

10. Black students just cannot keep up with the pace and content. they just

do not do well here.

11. We want to enroll the best students

12. We want the best students here

2 ££ ot

13. Interns from 7 uskegee don't know as much as our students

A try tne “Lae . □

4, An intern from Tuskegee’s knowledge about veterinary medicine is

limited and they lack clinical experience

26 fd. at p. 40, lines 20-25.

27 Id. at p. 45, lines 23-25.

28 Id. at p. 48, lines 1-5.

29 fd. at p. 173 (Exhibit 13 to Deposition of Dr. Daniel).

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For his part, Dr. Taboada denies making any of the remarks alleged by Dr. Daniel30

but acknowledges that “there’s little nuggets of things in here”31 that they did discuss. For

example, he testified that his predecessor, Dr. John Rhodes, told him that “Southern was

one of the schools . . . that students tended to struggle from,” and that he repeated that

remark to Dr. Daniel.32 Dr. Taboada asserts that he did not know Dr. Daniel was upset by

his comments and that “nobody ever told [him] anything about”33 her allegation that he

was racist. Dr. Lorrie Gaschen, the chair of the LSU SVM Diversity Committee, testified

that she knew “Taboada and Daniel had difficulties working and interacting together.”34

At some point in 2016 or 2017, Dr. Gaschen stated, Dr. Daniel came to her with an iPad

where she had “a long list of things that Dr. Taboada had said,”35 and went with Dr. Daniel

to present the list to the Dean. When asked whether she had heard Dr. Taboada make

the comments about black students on the list, Dr. Gaschen confirmed that she had.36

She also stated that, in her view, the comments were “racist.”37

In her original state court Petition, Dr. Daniel accused LSU of “removing her job

duties and changing her job function, isolating/alienating her, falsely accusing her of

policy/procedure violations and poor work performance . . . preventing her from attending

trainings. . .moving her office to an undesirable location near the animal pasture,

unilaterally transferring her to an undesirable reassignment, issuing her negative

performance evaluations which affected her pay, and engineering through pretense and

30 Rec. Doc. No. 20-3, p. 19; p. 28-31; p. 58 (“[D]id I say those things? No”).

31 Id. at p. 58, line 16.

32 Id. at p. 19-20.

33 Id. at p. 21, lines 11-15.

34 Rec. Doc. No. 22-6 (Deposition of Dr. Lorrie Gaschen), p. 2, lines 24-25.

35 Id. at p. 5, lines 1-5.

36 Id. p. 10 et seq.

37 Id. at p. 39, lines 2-5.

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false statements to the faculty appointment committee in a vote of non-reappointment. .

.”38 In her Opposition to the Motion for Summary Judgment, Dr. Daniel elaborates on the

situations that she contends constituted adverse employment actions against her. For

example, she alleges that when she presented Dr. Taboada with the idea of creating a

competency-based curriculum, “it was ignored” and that Dr. Heidi Banse, a white woman,

is now doing “exactly what [she] proposed.”39 Dr. Daniel also complains that when Dr.

Taboada sent a group of faculty to a clinical skills workshop, she alleges that she “wasn’t

included in that group.”40 Dr. Daniel testified that she “told the dean constantly” that she

should be included and that Dean Joel Baines said he would talk to Dr. Taboada about

it.41 Further, Dr. Daniel alleges that after three years at LSU SVM, she had yet to receive

a performance evaluation. When she asked Dr. Taboada about it, she alleges that he

referred her to Dr. Paccamonti, who was the chair of Veterinary Clinical Services, the

“academic home” to which Dr. Daniel was assigned.42 Dr. Paccamonti demurred,

believing that he should not evaluate her because Dr. Daniel’s work was “in student

affairs.”43 Dr. Daniel was eventually evaluated by Dean Baines in May 2018 and June

2019.44

Dr. Daniel was assigned a graduate assistant to work with her.45 She inquired

about the possibility of moving to a larger office, not only to have space for her student

38 Rec. Doc. No. 1-2, p. 3.

39 Rec. Doc. No. 22-5, p. 79, lines 4-11.

40 Id. at lines 16-19.

41 Id. at p. 80, lines 8-20.

42 Id. at p. 81-82.

43 Id. at p. 81, lines 22-25.

44 Rec. Doc. No. 20-2, p. 102-5.

45 Rec. Doc. No. 22-5, p. 85, lines 13-14.

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worker,46 but also to escape the loud conversations and dogs barking outside of her

current office.47 LSU moved Dr. Daniel to a new office in a laboratory building at the SVM

complex where other LSU SVM faculty also have offices.48 Dr. Daniel asserts that “they

put [her] in the smallest one they could find”49 despite larger ones being available.

Dr. Daniel also cites a May 18, 2017 meeting of the Courses and Curriculum

Committee as evidence of LSU’s adverse actions against her. In that meeting, the

committee chair requested that faculty members copy and paste their lecture schedules

into a document and send them to her so that the committee could tabulate how many

hours the faculty spent lecturing.50 Dr. Daniel alleges that, while the chair was explaining

this, Dr. Taboada “stopped her and turned to [Dr. Daniel] and he said, ‘That looks like

something Annie can do.’”51 To Dr. Daniel, this was offensive because “it seemed like he

thought it was beneath something that a faculty could do, but Annie could do it.”52 Dr.

Daniel concedes that Dr. Taboada “didn’t say it in so many words,” but in her view, he

meant that copy and pasting was “something. . .the only black woman in the room should

be doing and not any of the white people.”53 Dr. Daniel responded “I am not going to do

that,”54 to which Dr. Taboada replied, “If you are not going to do that, then you are not

doing what we hired you to do.”55

46 Id., lines 16-23.

47 Id. at p. 87, lines 1-12.

48 Id. at p. 87-88.

49 Id. at p. 88, lines 9-10.

50 Id. at p. 89-90.

51 Id. at p. 90, lines 10-12.

52 Id. at p. 91, lines 2-5.

53 Id., lines 18-20.

54 Rec. Doc. No. 22-5, p. 171 (Exhibit 12 from Deposition of Dr. Daniel).

55 Id.

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Dr. Daniel also asserts that her duties were “given to [a] white faculty member, Dr.

Heidi Banse,”56 and that Dr. Banse’s position was “specifically created to subsume Dr.

Daniel’s job”57 because Dr. Taboada “didn’t want to have to deal with a black woman.”58

Dr. Taboada denies having any involvement in Dr. Banse’s hiring.59 Per Dr. Taboada, Dr.

Banse was hired “in the department of veterinary clinical science as an equine internist.”60

Although Dr. Taboada stated that Dr. Banse “is performing duties that I would have hoped

that Dr. Daniel would have been able to grow her position into. I don’t believe she’s

performing any duties that – that Dr. Daniel was actually performing.”61

In particular, Dr. Daniel objects to Dr. Banse’s involvement with the creation of a

“Teaching Academy” at LSU SVM, which Dr. Daniel asserts was her idea and was

assigned to her until she was “removed from working”62 on it. At one point in her

deposition, Dr. Daniel attests that she was “in the process of working to develop” the

Academy when “Dr. Taboada and Heidi Banse went ahead.”63 Yet, when asked if she

had taken any steps to develop the Teaching Academy before Dr. Banse began working

on it, Dr. Daniel testified, “I did not take any steps to develop this . . . I had not taken any

steps.”64 The record reflects that Dr. Banse included Dr. Daniel on an email announcing

the inaugural meeting of the Teaching Academy,65 seeking to “identify a core group of

56 Rec. Doc. No. 22, p. 9.

57 Id.

58 Rec. Doc. No. 22-5, p. 84.

59 Rec. Doc. No. 20-3, p. 37, lines 22-24.

60 Id., lines 20-22.

61 Id. at p. 38, lines 14-18 (emphasis added).

62 Rec. Doc. No. 22, p. 10.

63 Rec. Doc. No. 22-5, p. 102, lines 8-10.

64 Rec. Doc. No. 22-5, p. 106, lines 2-9.

65 Rec. Doc. No. 15-3, p. 47.

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teaching-focused faculty to lead this group.”66 Dr. Taboada recalled that he “asked Dr.

Banse to consult with Dr. Daniel in the process” because she had experience with

teaching academies, and that “Dr. Banse said she did talk to Dr. Daniel about that and

that she expressed she wasn’t interested in working with Heidi to do that.”67 Dean Baines

confirmed that he had assigned the creation of a Teaching Academy to Dr. Daniel68 and

that, when Dr. Banse initiated one, he “asked Dr. Daniel to work with them. . .to get the

academy implemented to the best that it could be.”69 That did not happen, he testified,

because “Dr. Daniel stepped away” and was “nowhere to be seen”70 at the meetings.

Asked whether Dr. Banse took over some of Dr. Daniel’s job duties, Dean Baines

testified “[n]o, I don’t view it that way.”71 Although they both have duties related to

curriculum, Baines explains that “Dr. Banse is a content expert, whereas Dr. Daniel is a

pedagogical expert. So Dr. Banse is advising on arranging the content in the curriculum

to get it appropriate for training of a first-year veterinary student,” which is outside of Dr.

Daniel’s expertise in his view because she is “not a veterinarian.”72 For her part, Dr. Banse

testified that she “did not know”73 that Dr. Daniel had already proposed a Teaching

Academy at SVM until Dr. Daniel told her. It was Dr. Banse’s understanding that Dr.

Daniel’s role was “outcomes assessment, and she oversaw the creation of our curriculum

map.”74 The “area of overlap”75 that Dr. Banse perceives between her role and Dr.

66 Id.

67 Rec. doc. No. 20-3, p. 52, lines 17-25.

68 Rec. Doc. No. 20-2, p. 23, lines 11-14.

69 Id. at p. 27, lines 3-8.

70 Id.

71 Id. at p. 34, lines 16-18.

72 Rec. Doc. No. 20-2, p. 34-35.

73 Rec. Doc. No. 20-7, p. 3, line 25.

74 Id. at p. 20, lines 2-4.

75 Id. at p. 26, line 20.

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Daniel’s role is with respect to curriculum, but “there can be different roles within” that

project and she sees herself as a “content expert.”76

In May 2017, Dr. Daniel met with Gaston Reinoso, an LSU Human Resources

official who recalls their conversation as centering around her being “frustrated with the

management at the vet med college, was frustrated with the lack of direction . . . the lack

of attention of the dean on how the relationship between her and Joseph Taboada was

at the time, and her biggest concern was the lack of direction and some comments that

he had made about African-American students not attending college.”77 Reinoso later

asked Dr. Taboada if he made the alleged comments about black students, and Taboada

told Reinoso “that he didn’t say that.”78 Reinoso told Dr. Taboada that “if there was [sic]

any of those comments. . .that needed to stop immediately.”79

Dr. Daniel met with Provost Dr. Jane Cassidy in February 2018 to detail her

concerns about the alleged harassment and discrimination.80 On June 4, 2018, Dr. Daniel

emailed Gaston Reinoso in Human Resources regarding the Teaching Academy.81 On

February 19, 2019, Dr. Daniel had her “normal weekly meeting”82 with Dean Baines,

which they implemented when he began supervising her instead of Dr. Taboada.83 By

that point, Dr. Daniel attests, Dr. Taboada “totally avoided [her] and did not include

76 Id. at p. 37, line 10.

77 Rec. Doc. No. 20-9, p. 5, lines 5-13.

78 Id. at p. 10, line 2.

79 Id. at p. 19, lines 18-20.

80 Rec. Doc. No. 22-5, p. 145 et seq.

81 Rec. Doc. No. 20-9, p. 45.

82 Rec. Doc. No. 22-5, p. 109.

83 The parties agree that Dr. Taboada was reassigned and no longer served as Associate Dean after 2017.

They further agree that Dr. Taboada’s reassignment was not related to Dr. Daniel’s accusations. Rec. Doc.

No. 22-1, p. 11 (Although Dr. Taboada was supposedly removed from his position as Associate Dean in

2017, that was unrelated to Dr. Daniel’s complaints of racism”); Rec. Doc. No. 15-2, p. 4 (“Dr. Taboada's

reassignment was not related to the plaintiffs complaints”).

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[her].”84 She testifies that she “explained to the dean the stress and anxiety that [she] was

suffering from having to work with somebody that had such strong racist feelings about

black people.”85 Dr. Daniel asked Dean Baines about the possibility of being transferred

out of SVM to a different department.86

Dean Baines completed an evaluation of Dr. Daniel in June 2019 that she contends

is discriminatory because it “describes [her] as inflexible when [she’s] not inflexible.”87 To

Daniel, “the way that they describe me as a black woman is almost like, you know, I’m

this angry black woman,”88 though she acknowledges that those words do not appear in

the evaluation. Dr. Daniel also objects to the statement in the evaluation that she has

“perceived contempt of the curriculum committee,”89 which she finds to be unfounded.

In 2018, Dean Baines and the faculty undertook a vote on Dr. Daniel’s

reappointment, and the faculty voted 7 to 1 to recommend against reappointment.90 Dean

Baines attributed that outcome to his perception that Dr. Daniel had “limited contact and

interactions with faculty” and that “[m]any do not understand her role as a result.”91 Dr.

Daniel was nevertheless reappointed. On April 12, 2019, Dr. Daniel filed Charges of

Discrimination with the Equal Opportunity Employment Commission (“EEOC”).92 Dean

Baines’ June 2019 performance evaluation of Dr. Daniel was overall “satisfactory.”93 The

84 Id. at p. 112, lines 13-14.

85 Id. at p. 110, lines 11-14.

86 Id. at lines 18-23.

87 Id. at p. 129, lines 18-19.

88 Id. at lines 22-25.

89 Id. at p. 130 lines 8-14.

90 Rec. Doc. No. 22-5, p. 130, lines 19-25; Rec. Doc. No. 20-2, p. 105.

91 Rec. Doc. No. 20-2, p. 105.

92 Rec. Doc. No. 22-10 (Exhibit I).

93 Rec. Doc. No. 20-2, p. 106.

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following year, he rated her as “needs improvement.”94 Dr. Daniel contends that the

downturn in Baines’ evaluation of her performance is “retaliation.”95

Overall, LSU concedes that, at the summary judgment stage, “Dr. Daniel’s

contention that [Dr. Taboada’s] statements were made must be taken as true.”96

Nevertheless, LSU maintains, “it is significant that Dr. Taboada denies many of the

statements and as to others describes very different versions of what was actually said.”97

LSU contends that it is entitled to summary judgment because, even assuming that Dr.

Taboada made the statements in question, Dr. Daniel’s claims fail because the comments

are mere “stray remarks” that are not actionable, and not, as Dr. Daniel contends, “direct

evidence” of discrimination. Further, LSU argues that Dr. Daniel fails to establish that LSU

took an adverse employment action against her, a failure that is fatal to her Title VII

discrimination and retaliation claims and her Louisiana Employment Discrimination Law

claim. Additionally, LSU contends that much of the conduct described by Dr. Daniel is not

properly before the Court because it is time-barred under the law. After reviewing the

record evidence and the relevant law, the Court agrees with LSU and finds that summary

judgment shall be granted on all of Dr. Daniel’s claims, for the reasons discussed below.

III. LAW AND ANALYSIS

A. Summary Judgment

In reviewing a party’s motion for summary judgment, the Court will grant the motion

if (1) there is no genuine issue of material fact, and (2) the mover is entitled to judgment

94 Rec. Doc. No. 22-5, p. 182.

95 Rec. Doc. No. 22, p. 11.

96 Rec. Doc. No. 15-1, p. 3.

97 Id.

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as a matter of law.98 This determination is made “in the light most favorable to the

opposing party.”99 A party moving for summary judgment “‘must “demonstrate the

absence of a genuine issue of material fact,” but need not negate the elements of the

nonmovant’s case.’”100 If the moving party satisfies its burden, “the non-moving party must

show that summary judgment is inappropriate by setting ‘forth specific facts showing the

existence of a genuine issue concerning every essential component of its case.’”101

However, the non-moving party’s burden “‘is not satisfied with some metaphysical doubt

as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by

only a scintilla of evidence.’”102

Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”103 All reasonable factual

inferences are drawn in favor of the nonmoving party.104 However, “[t]he Court has no

duty to search the record for material fact issues. Rather, the party opposing the summary

judgment is required to identify specific evidence in the record and to articulate precisely

how this evidence supports his claim.”105 “Conclusory allegations unsupported by specific

facts . . . will not prevent the award of summary judgment; ‘the plaintiffs [can]not rest on

his allegations . . . to get to a jury without any “significant probative evidence tending to

98 FED. R. CIV. P. 56(a).

99 Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (citing United States v. Diebold, Inc., 369 U.S.

654, 655 (1962); 6 V. MOORE, FEDERAL PRACTICE 56.15(3) (2d ed. 1966)).

100 Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003) (quoting Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)); Celotex Corp. v. Catrett, 477 U.S. 317,

323-25 (1986).

101 Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (quoting Morris v. Covan World

Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).

102 Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little, 37 F.3d at 1075).

103 Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007) (quoting

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

104 Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

105 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).

68650  14

support the complaint.”’”106

B. Prescription

1. Title VII Discrimination

LSU argues that Dr. Daniel’s Title VII discrimination claims based on actions

occurring more than 300 days prior to her filing of an EEOC Charge on May 30, 2019 are

time barred.107 Thus, LSU contends, Dr. Daniel cannot carry her burden of proving her

discrimination claim using “remarks by Dr. Taboada occurring at the latest in 2016.”108 Dr.

Daniel rejects this argument, stating, “[t]his is not the law.”109 Citing National R. R.

Passenger Corp. v. Morgan, Dr. Daniel argues that “as long as one incident forming the

basis for Dr. Daniel’s claims for race-based harassment and retaliatory harassment

occurred within 300 days from the filing of her EEOC Charge. . .the entirety of her claims

are timely.”110 Dr. Daniel’s argument is, in fact, not the law when it comes to Title VII

discrimination claims. In Morgan, the United States Supreme Court held that Title VII

“precludes recovery for discrete acts of discrimination or retaliation that occur outside the

statutory time period”111 of 300 days. However, the Morgan Court instructs that behavior

occurring outside of the statutory time period may be considered in the context of a hostile

work environment claim, as long as “an act contributing to that hostile environment takes

place within the statutory time period.”112 Thus, Dr. Daniel’s contention that older incidents

may be considered is correct with respect to her harassment claim. However, as to her

106 Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994)

(quoting Anderson, 477 U.S. at 249).

107 Rec. Doc. No. 15-1, p. 10.

108 Id.

109 Rec. Doc. No. 22, p. 13.

110 Id.

111 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).

112 Id.

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Title VII discrimination claim, the law is clear that “[i]n Louisiana, a plaintiff has 300 days

from the date of the alleged discriminatory conduct to file a charge of discrimination with

the EEOC. Any claims not described in the EEOC charge are not properly before the

Court.”113 Accordingly, Dr. Daniel’s Title VII discrimination claims based on events that

occurred 300 days before May 30, 2019, or before August 3, 2018, are time-barred.

2. Title VI Claims

LSU also argues that Dr. Daniel’s claims arising under Title VI are prescribed,

noting that such claims “are subject to state statutes of limitations for personal injury

actions.”114 In Louisiana, that period is one year.115 Therefore, LSU contends, because

Dr. Daniel filed suit in January 2020, any of her claims based on conduct occurring prior

to January 2019 are time barred, including “Dr. Taboada’s alleged statements, the office

re-assignment and the failure to provide support.”116 Dr. Daniel does not disagree with

LSU’s statement of the relevant law, but avers that “her claims is [sic] not prescribed as

she engaged in protected activity in February, March, and April 2019, she suffered

tangible employment action.”117 This vague and conclusory statement is insufficient to

defeat summary judgment. The Court finds that any pre-January 2019 conduct is time-

barred and cannot provide a basis for Dr. Daniel’s Title VI claims.

113 Minnis v. Bd. of Sup'rs of Louisiana State Univ. & Agric. & Mech. Coll., 55 F. Supp. 3d 864, 874 (M.D.

La. 2014), aff'd sub nom. Minnis v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 620 F. App'x

215 (5th Cir. 2015).

114 Sewell v. Monroe City School Board, 974 F.3d 577, 583 (5th Cir. 2020).

115 Louisiana Civil Code Article 3492.

116 Rec. Doc. No. 15-1, p. 16.

117 Rec. Doc. No. 22, p. 24.

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3. State Law Claims

A cause of action based on race discrimination is a delictual action subject to the

one-year prescriptive period found in Louisiana Civil Code art. 3492. The prescriptive

period commences to run the day the injury or damage is sustained – that is, upon the

employee's first notice of an adverse employment action.118 Prescription runs against all

persons unless they are included in some exception established by law. LSA-C.C.

art.3467. The same period applies to La. R.S.23:967 claims. Therefore, the plaintiff’s state

law claims arising more than one year prior to the filing of this lawsuit are time barred.

4. Title VII and LEDL Claims for Race Discrimination

Dr. Daniel asserts that LSU discriminated against her due to her race in violation

of Title VII and the Louisiana Employment Discrimination Law (“LEDL”).119 Both Title VII

and LEDL prohibit employers from discriminating based on race.120 Because Title VII and

LEDL share the same scope, claims under LEDL are analyzed under the Title VII

framework and jurisprudential precedent.121 Above, this Court concluded that Dr. Daniel’s

Title VII discrimination claims based on events that occurred 300 days before May 30,

2019, or before August 3, 2018, are time-barred. Because the timing of some of the

alleged events is not clear and in the interest of completeness, the Court will nevertheless

examine all of Dr. Daniel’s claims, even where they are arguably prescribed.

118 Eastin v. Entergy Corp., 2003-1030 (La. 2/6/04), 865 So. 2d 49, 54.

119 Louisiana Revised Statute §23:301 et seq.

120 42 U.S.C. § 2000e-2(a)(a); La. R. S. § 23:332.

121 See DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007).

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a. Direct Evidence or Stray Remarks?

A preliminary issue in this case is whether the evidence presented by Dr. Daniel

is, as she contends, direct evidence of discrimination. LSU disputes this characterization,

finding that the allegedly discriminatory comments were merely stray remarks, insufficient

to demonstrate the requisite animus. Generally, a Title VII plaintiff may make out a prima

facie case of discrimination using either direct or circumstantial evidence.122 If the plaintiff

presents only circumstantial evidence, then she must prove discrimination inferentially

using “[t]he three-step McDonnell Douglas-Burdine ‘minuet.’”123 If, however, the plaintiff

presents direct evidence of discrimination, “the burden of proof shifts to the employer to

establish by a preponderance of the evidence that the same decision would have been

made regardless of the forbidden factor.”124

To determine whether comments in the workplace constitute “direct evidence” or

only “stray remarks,” courts look to four factors: whether the comments are (1) related to

the plaintiff's protected characteristic; (2) proximate in time to the challenged employment

decision; (3) made by an individual with authority over the challenged employment

decision; and (4) related to the challenged employment decision.125 In applying this test,

the court’s focus is on whether the comments prove, “without inference or presumption,

that race was a basis in employment decisions” in the plaintiff's workplace.126

122 See Portis v. First Nat'l Bank, 34 F.3d 325, 328 (5th Cir.1994).

123 Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 475 (5th Cir. 2015)(quoting Davis

v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir.1994)).

124 Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir.1993).

125 Etienne v. Spanish Lake, 778 F. 3d at 476 (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222

(5th Cir.2001)).

126 Id. (citing Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 993 (5th Cir.2005)).

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Dr. Daniel argues that the comments made by Dr. Taboada and others are direct

evidence of racial discrimination. Although she cites the above-discussed standard for

direct evidence, Dr. Daniel does not engage meaningfully with the standard, offering

instead her own characterizations of Dr. Taboada’s alleged statements. For example, Dr.

Daniel argues that this is a direct evidence case because “LSU made it clear to Dr. Daniel

that black applicants, students, and employees were less than equal to white at LSU

SVM,”127 and that multiple comments “expressed the animus that Dr. Daniel was not

competent enough to do her job because she was black.”128 This approach to establishing

direct evidence has several shortcomings. First, the arguments of counsel in briefs are

unequivocally not evidence and cannot prevent summary judgment. Second, where Dr.

Daniel does cite to actual remarks in evidence, it is apparent to the Court that none of

those remarks constitute direct evidence, and Dr. Daniel does not offer argument to the

contrary, again choosing instead to paraphrase the remarks in a more inflammatory form,

as if that establishes their “directness.” Lastly, Dr. Daniel does not demonstrate that the

remarks were related, either substantively or temporally, to the challenged employment

decisions in this case (in fact, she fails to demonstrate that there were any adverse

employment decisions at all; see infra).

Only one of the remarks cited by Dr. Daniel as direct evidence of discrimination

was directed at her – the alleged comment by Dr. Taboada that Dr. Daniel did not sound

black on the phone. Dr. Taboada denies making this comment. At the summary judgment

stage, the Court construes factual disputes “in the light most favorable to the opposing

127 Rec. Doc. No. 22, p. 15.

128 Id. at p. 16.

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party”129 and will, therefore, as LSU concedes is appropriate, take as true Dr. Daniel’s

contention that the statement was made. The “didn’t sound black on the phone” statement

fails the direct evidence test because it would require an inference or presumption to

conclude that the remark demonstrates that race was a basis for LSU’s alleged adverse

employment actions. In and of itself, Dr. Taboada’s statement did not express

discriminatory animus or indicate that Dr. Daniel’s race was a factor in LSU’s decision to

hire her. In other words, for Dr. Taboada’s alleged remark to be evidence of

discrimination, one must presume that he was disappointed to find that Dr. Daniel was

black because LSU wanted to hire a white person. That meaning is not apparent on the

face of his remark. Because a presumption is required to arrive at that conclusion,

Taboada’s remark is not direct evidence. Although Dr. Daniel offers the conjecture that

Taboada’s remark was direct evidence that he had a “preference for whites,”130 that

conclusion is not supported by the law.

Even assuming arguendo that Dr. Taboada’s comment was discriminatory on its

face, it cannot be called direct evidence, because Dr. Daniel does not demonstrate that

the “black on the phone” remark was related to or close in time to any of LSU’s

employment decisions, beyond her own conclusory insistence that it was. The mere fact

that the statement was allegedly made in the office does not suffice to connect it to LSU’s

alleged discriminatory decision-making. Nor does Dr. Daniel establish that Dr. Taboada

was a person with authority over the employment decision that she challenges.131

129 Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (citing United States v. Diebold, Inc., 369 U.S.

654, 655 (1962); 6 V. MOORE, FEDERAL PRACTICE 56.15(3) (2d ed. 1966)).

130 Rec. Doc. No. 22, p. 2.

131 As discussed further infra, Dr. Daniel does not make a successful showing that she suffered adverse

employment action under the law. To the extent that she argues that her alleged demotion, reassignment,

68650  20

Other courts have likewise rejected plaintiffs’ assertions that comments about their

voice or manner of speaking, without a temporal or substantive nexus to the challenged

employment action, were direct evidence of discrimination. In Yul Chu v. Mississippi State

University, for example, the Fifth Circuit concluded that the plaintiff’s testimony that

"members of his department mocked his accent at different times”132 was not direct

evidence of discrimination because the jokes were not related to the challenged tenure

decision. Similarly, the United States Court of Appeals for the Eleventh Circuit held in

Gonzales v. Fla. Dep’t of Mgmt. Servs. that a maintenance supervisor of Cuban descent

did not have direct evidence of discrimination based on a manager’s statement that the

plaintiff should not have been hired because he “spoke with a heavy Cuban accent” and

“spoke too loud.”133 Because these remarks were not related to the plaintiff’s termination,

substantively or temporally, the court concluded that they were not direct evidence of

discrimination. The holdings in Yul Chu and Gonzales apply a fortiori to the instant case

insofar as Dr. Taboada’s comment about Dr. Daniel’s voice was not critical or mocking; it

was an apparently neutral statement. There is no record evidence to support Dr. Daniel’s

contention that his remark is proof that Dr. Taboada and LSU used race as a basis for

employment decisions.

Furthermore, it is clear that Dr. Taboada’s comment about Dr. Daniel sounding

“black on the phone” falls well short of the type of statement that the Fifth Circuit has

called direct evidence of racial discrimination and instead falls squarely within the

moving of offices, and lack of support were adverse actions, she does not demonstrate for purposes of the

direct evidence issue that Dr. Taboada was the authority figure behind those actions.

132 Yul Chu v. Mississippi State Univ., 592 F. App'x 260, 264 (5th Cir. 2014).

133 Gonzalez v. Fla. Dep't of Mgmt. Servs., 683 F. App'x 738, 739 (11th Cir. 2017).

68650  21

category of “stray remarks.” In Patel v. Midland Memorial Hospital & Medical Center,134

the Fifth Circuit held that, under the “stray remarks” doctrine, a workplace slur does not

provide sufficient evidence of discrimination unless it is related to the plaintiff's protected

class, proximate in time to the adverse employment decision, made by an individual with

authority over the plaintiff, and related to the employment decision at issue.135 The record

evidence before the Court demonstrates that Dr. Daniel cannot rebut the stray remarks

doctrine. There is no evidence that any alleged comments were made proximate in time

to the alleged adverse employment action and no evidence whatsoever that the alleged

remarks were related to the decision to allegedly demote and reassign Dr. Daniel.

In Eaglin v. Texas Childrens’ Hospital, the Fifth Circuit considered whether

comments made to the plaintiffs, who worked at the cardiology reception desk, were direct

evidence of racial discrimination. Those comments took the following form:

[A supervisor] once “flipped” [the plaintiff’s] hair and asked her how much

she paid for it. [A different supervisor] also asked if [the plaintiffs] ate

watermelon and fried chicken on holidays. [A supervisor] once told [the

plaintiff] that she needed to “[e]ither ... change [her] hair [color] or ... go

home for the rest of the day.” [One supervisor] referred to [the plaintiffs] as

“the black girls” and questioned the style and color of [their] hair, asking

[plaintiff] whether she thought “it was professional to wear braids in the

medical field.”136

The Eaglin plaintiffs were also told that they “couldn’t communicate with the patients” and

that management “want to replace you-all with Hispanics.”137 The Fifth Circuit held that

these comments were stray remarks because “the statements—even if offensive—were

either not made by someone with authority to terminate Eaglin’s employment, were not

134 298 F.3d 333 (5th Cir. 2002), cert. denied, 537 U.S. 1108 (2003).

135 Id. at 344.

136 Eaglin v. Texas Children's Hosp., 801 F. App'x 250, 252 (5th Cir. 2020).

137 Id.

68650  22

proximate in time to her firing, or were not related to the termination decision. None of the

statements, even ‘if believed, proves the fact [of intentional discrimination] without

inference or presumption.’”138 The same can be said here of Dr. Taboada’s “black on the

phone” comment, which was a stray remark that, standing alone, is insufficient to survive

summary judgment.

Dr. Daniel’s attempt to prove that this a direct evidence case fares no better where

she discusses the various comments allegedly made by Dr. Taboada regarding black

students at LSU SVM. It appears to be Dr. Daniel’s contention that these remarks are

related to LSU’s employment decisions insofar as Dr. Taboada’s allegedly low opinion of

black people, generally, must have bled over into LSU’s employment relationship with Dr.

Daniel. However, the evidence in the record clearly demonstrates that Dr. Taboada’s

remarks about black students were made not in the context of discussing Dr. Daniel’s

performance or employment but rather, in the context of what LSU describes as “their

mutual interest in recruiting more minority students to the SVM.”139 Indeed, Dr. Daniel

testified that “there’s been several occasions where Dr. Taboada and I would – you know,

I just tried to give him recommendations on how to improve diversity, how to recruit, and

things like that.”140

Clearly, to conclude that the remarks were related to Dr. Daniel’s employment

requires an inference that comments Dr. Taboada made in the context of discussing the

pipeline of black students into veterinary medicine were, in his view, equally applicable to

Dr. Daniel. That is, one must infer that because he allegedly had a low opinion of the

138 Id. at 256.

139 Rec. Doc. No. 15-1, p. 3.

140 Rec. Doc. No. 22-5, p. 31, lines 5-8.

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performance of black students, he also had a low opinion of Dr. Daniel’s performance.

On their face, however, these comments did not relate to Dr. Daniel except insofar as,

like the black students being discussed, Dr. Daniel is black. In fact, Dr. Daniel herself

testified that Dr. Taboada “didn’t know that what he was saying applied to me.”141 Because

it would require a presumption to conclude that Dr. Taboada’s remarks about the

capabilities of black students prove that he impermissibly used race a basis for

employment decisions, the Court concludes that the evidence of discrimination cited by

Dr. Daniel is circumstantial, not direct. In any event, as with the “black on the phone”

remark, Dr. Daniel fails to bring forth record evidence establishing that Dr. Taboada’s

comments were proximate in time or substance to the challenged employment decisions,

or in fact that they were related at all.

Dr. Daniel contends that her evidence “is similar to”142 evidence that the Fifth

Circuit concluded was direct in Jones v. Robinson Prop. Group.143 In Jones, a black

casino employee alleged that he was not hired as a poker dealer due to race

discrimination, citing as evidence the white poker room manager’s statements that “these

good old white boys don't want black people touching their cards” and that “’maybe I've

been told not to hire too many blacks in the poker room.’”144 While the district court called

these remarks circumstantial evidence, the Fifth Circuit reversed, holding that the

statements in evidence “clearly and explicitly indicate[] that decision maker(s) in the poker

room used race as a factor in employment decisions, which is by definition direct evidence

141 Id. at p. 50, lines 6-7.

142 Rec. Doc. No. 22, p. 15.

143 427 F.3d 987 (5th Cir. 2005).

144 Id. at 991.

68650  24

of discrimination.”145 The evidence in Jones is clearly distinguishable from Dr. Daniel’s

evidence. The statements in Jones were explicitly and on their face related to hiring and

race. Dr. Daniel has not pointed to a single statement that was related to LSU’s

employment decisions.

Moreover, the evidence in Jones was more obviously applicable to the plaintiff than

much of the evidence cited by Dr. Daniel herein. In Jones, the remark that black poker

dealers were disfavored because white people didn’t want them touching their cards

clearly applied to the plaintiff, a black poker dealer, and directly stated that the basis for

his non-hiring was his race. By contrast, Dr. Taboada’s alleged comments about the

academic achievement of black students are not directly applicable to Dr. Daniel, who Dr.

Taboada knew was highly educated, nor were Taboada’s remarks made in the context of

a discussion of employment decisions; they were made during conversations about

increasing diversity at LSU SVM. Dr. Daniel testified that LSU discriminated against her

because “[Dr. Taboada] made comments about black people and I’m a black person.”146

Direct evidence this is not. To be clear, if made, the Court does not conclude that Dr.

Taboada’s alleged remarks were wise, appropriate, or true; nor does it suggest that Dr.

Daniel was wrong to be upset by them. The Court merely concludes that the evidence

cited by Dr. Daniel is not, according to the well-worn legal test that applies, direct

evidence.

145 Id. at 993.

146 Rec. Doc. No. 22-5, p, 84, lines 11-12.

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b. The McDonnell Framework

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

the burden-shifting test established by McDonnell Douglas Corp. v. Green147 to determine

whether an employer is liable for employment discrimination under Title VII. First, the

plaintiff must establish a prima facie case of discrimination.148 If the plaintiff succeeds, the

burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its

actions.149 Finally, if the employer offers such a justification, the burden shifts back to the

plaintiff, who can then attempt to demonstrate that the defendant's proffered reason is

merely a pretext for discrimination.150 Ultimately, the burden of persuasion that the

defendant intentionally discriminated against the plaintiff remains at all times with the

plaintiff.151

C. Prima Facie Case

A plaintiff can establish a prima facie case of employment discrimination by proving

the following: (1) she is a member of a protected class; (2) she was qualified for the

position at issue; (3) she was the subject of an adverse employment action; and (4) she

was treated less favorably because of her membership in that protected class than were

other similarly situated employees who were not members of the protected class, under

nearly identical circumstances.152

147 411 U.S. 792, 802–04 (1973).

148 Id. at 802.

149 Id.

150 Id. at 804.

151 Black v. Pan Am. Labs., L.L.C., 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”).

152 Paske v. Fitzgerald, 785 F.3d 977, 984–85 (5th Cir. 2015)(citing McDonnell Douglas, 411 U.S. at 802).

68650  26

LSU disputes Dr. Daniel’s ability to establish the third element, contending that her

prima facie case fails because she suffered no adverse employment action. Dr. Daniel

asserts that LSU “stripped [her] job duties and relegated her to performing more clerical

duties, inputting data, and providing advice,”153 that it “excluded her from training and

conferences on clinical skills,” and “prohibited her from attending clinical skills committee

meetings.”154 Further, Dr. Daniel contends, her “job duties were given to another white

faculty member, Dr. Heidi Banse,” and LSU repeatedly declined her requests for support

staff, moved her office into a “closet,” and then, when she complained, “began retaliating

against her and intensified the harassment.”155 LSU concedes that “some of Dr. Daniel’s

job duties have been changed. She is no longer primarily responsible for Curriculum but

is expected to continue to advise in this area.”156

The Court finds that many of Dr. Daniel’s assertions are not supported by record

evidence and, to the extent that some of them are, Dr. Daniel fails to show that the

circumstances constitute adverse employment action under the doctrine. Though the

following points are not dispositive, it is relevant that Dr. Daniel does not dispute that,

during her employment at LSU SVM, she has maintained her faculty rank, has received

pay increases, and has been reappointed.157

The Fifth Circuit “strictly construes adverse employment actions.”158 For Title VII

discrimination claims, an adverse employment action implicates an “ultimate employment

decision,” such as hiring, firing, demoting, promoting, granting leave, and

153 Rec. Doc. No. 22, p. 6.

154 Id. at p. 7.

155 Id. at p. 9.

156 Rec. Doc. No. 15-1, p. 7.

157 Rec. Doc. No. 22-5, p. 107, lines 15-17; Id. at p. 108.

158 Peterson v. Linear Controls, Inc., 757 F. App'x 370, 373 (5th Cir. 2019).

68650  27

compensating.159 Thus, “where pay, benefits, and level of responsibility remain the same,”

employment actions are typically not considered adverse.160 The mere loss of some job

responsibilities does not constitute an adverse employment action.161 Nevertheless, “[i]n

certain instances, a change in or loss of job responsibilities . . . may be so significant and

material that it rises to the level of an adverse employment action.”162

In short, the record reflects that Dr. Daniel’s supervisors did not “strip” her of her

Teaching Academy duties – they invited and encouraged her to collaborate with Dr.

Banse on the project, which Dr. Daniel had admittedly taken no steps to initiate. The Court

finds that being asked to collaborate on a project which had initially been assigned only

to one employee is not such a “significant and material” change in job duties as to

constitute adverse employment action. Dr. Daniel offers no analogous jurisprudence to

support her claim that it does.

Dr. Banse’s position on the curriculum review committee is another issue cited by

Dr. Daniel as evidence of adverse employment action. She asserts that Dr. Taboada “did

not see . . . a black woman having the ability to inform decisions about the curriculum”163

and so he “hired the white woman and gave her my job responsibilities.”164 It is undisputed

that Dr. Daniel was hired, in part, to work on “Instructional Design,” which entailed working

with the Faculty Courses and Curriculum Committee to advise on best practices for

curriculum implementation. Dr. Daniel complains that she originally had two titles,

159 McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007).

160 Minnis v. Bd. of Sup'rs of Louisiana State Univ. & Agric. & Mech. Coll., 55 F. Supp. 3d 864, 877 (M.D.

La. 2014), aff'd sub nom. Minnis v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 620 F. App'x

215 (5th Cir. 2015).

161 Thompson v. City of Waco, Texas, 764 F.3d 500, 504 (5th Cir. 2014).

162 Id.

163 Rec. Doc. No. 22-5, p. 72, lines 21-24.

164 Id. at p. 72-73.

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“Director of Instructional Design and Outcomes Assessment” and that “they took” one of

them and made Dr. Banse the “Director of Instructional Design.”165 As discussed above,

Dr. Taboada denies that he had any involvement with hiring Dr. Banse and testified that,

although Dr. Banse is “performing duties that I would have hoped that Dr. Daniel would

have been able to grow her position into,” she is not “performing any duties that – that Dr.

Daniel was actually performing.”166

Dean Baines testified that, in his view, Dr. Banse did not take over Dr. Daniel’s

duties.167 Instead, he believed that their positions coexisted insofar as Dr. Banse, a

veterinarian, served as a “content expert” for curriculum design, while Dr. Daniel was a

“pedagogical expert.”168 Dean Baines asserted that he has not taken away Dr. Daniel’s

job, only “asked her to act as part of the team.”169

Nor does the record support Dr. Daniel’s contention that she was “reassigned to

clerical duties.” Clearly, there is a gulf between incidentally copy-and-pasting information

in the course of one’s duties and being completely “reassigned to clerical duties.” Word

processing is a ubiquitous function practiced in jobs and occupations at every level.

Further, although Dr. Taboada admits that he apologized to Dr. Daniel for raising his voice

in the meeting where he asked her to take on the copy-and-paste project,170 the Fifth

Circuit has clearly held that “unpleasant work meetings, verbal reprimands, improper work

requests, and unfair treatment do not constitute actionable adverse employment actions

165 Id. at p. 74, lines 14-15.

166 Rec. Doc. No. 20-3, p. 38.

167 Rec. Doc. No. 20-2, p. 34, lines 13-18.

168 Id.

169 Id. at p. 40, lines 12-13.

170 Rec. Doc. No. 20-3, p. 15; Rec. Doc. No. 20-3, p. 42, lines 23-24.

68650  29

as discrimination or retaliation.”171 Likewise, Dr. Daniel’s assertion that LSU took an

adverse action against her by moving her to a smaller office fails as a matter of law. The

record reflects that Dr. Daniel requested a move172 and a move was arranged to a building

where other faculty worked. Although Dr. Daniel repeatedly refers to her new office as a

“closet” in her briefs, there is no evidence before the Court that the office provided to Dr.

Daniel was actually a closet. A small office is not evidence of discrimination.

There are numerous disputed factual issues surrounding Dr. Daniel’s assertion

that she was stripped of job duties and reassigned. But even accepting her version of

events wholesale, the jurisprudence is clear: unless the changes to her duties were

substantial and material, there is no adverse employment action. LSU’s decision to hire

Dr. Banse, and the fact that Dr. Banse eventually took on some of the responsibilities that

were also within Dr. Daniel’s purview, does not rise to the level of an adverse action. Dr.

Daniel’s allegation that she was excluded from learning opportunities related to clinical

skills is apparently limited to one occasion where she requested to attend a conference

in Florida and her request was denied.173 This single incident is not sufficient to establish

adverse employment action.

The Thompson case upon which Dr. Daniel relies is distinguishable. In Thompson,

the plaintiff was a black detective in the Waco, Texas Police Department. The plaintiff and

two white detectives were accused of falsifying time sheets, after which “the Department

imposed written restrictions on Thompson that it did not impose on the two white

171 King v. Louisiana, 294 F. App'x 77, 85 (5th Cir. 2008).

172 Rec. Doc. No. 22-5, p. 86-87.

173 Rec. Doc. No. 20-1, p. 133.

68650  30

detectives.”174 Under those restrictions, the plaintiff was forbidden to “(1) search for

evidence without supervision; (2) log evidence; (3) work in an undercover capacity; (4) be

an affiant in a criminal case; (5) be the evidence officer at a crime scene; and (6) be a

lead investigator on an investigation.”175 The district court held that the plaintiff failed to

allege an adverse employment action because he alleged only the loss of some job

responsibilities, not a change to title, pay, or benefits. The Fifth Circuit reversed, holding

that the plaintiff’s job duties had changed so significantly that

he no longer occupies the position of a detective; he now functions as an

assistant to other detectives. Although a detective in name, Thompson

alleges that he can no longer “detect”—that is, search for evidence—without

supervision. Nor can he log evidence, be the affiant in a criminal case, work

undercover, be the evidence officer at a crime scene, or be the lead

investigator on an investigation. Thompson therefore alleges that he lost the

essential job functions of a detective, he no longer uses his education and

skills that he had acquired and regularly used as a detective, and his new

position is less interesting, provides fewer opportunities for advancement,

is less prestigious, and involves significantly diminished responsibilities.176

The Court finds these facts distinguishable in a number of respects. In Thompson, the

plaintiff’s job duties were changed to the extent that he was effectively neutered as a

detective. Not the case here. Dr. Daniel has not established that her job duties changed

as a result of some explicit action by LSU; instead, the record reflects that, based on

difficulties in her relationship with Dr. Taboada and other staff members, Dr. Daniel

“pushed herself away.”177 In the case of the Teaching Academy, which she alleges was

“stripped” away from her or “hijacked,” Dr. Daniel’s own testimony establishes that she

174 Thompson v. City of Waco, Texas, 764 F.3d 500, 502 (5th Cir. 2014).

175 Id.

176 Id. at 505.

177 Rec. Doc. No. 20-3, p. 39, lines 17-18.

68650  31

had taken no steps to implement it when Dr. Banse and Dr. Taboada moved forward. In

short, though Dr. Daniel has evinced some evidence of adversity, she has not

demonstrated that LSU took any action against her, at least not significant or material

action.

Thompson is also distinguishable because the changes to the detective’s duties

were so fundamental as to be existential. Here, Dr. Daniel was hired, in part, to work on

curriculum matters at LSU SVM. The record reflects that she is still working in that

capacity, though collaboratively with others. Dr. Daniel complains that she merely

“advises” on curriculum and does not have the same level of power and involvement that

she enjoyed in her previous position at Tulane University. In the Court’s view, based on

the record evidence, it cannot be said, as in Thompson, that Dr. Daniel “no longer uses

[her] education and skills” as a result of some adverse employment action taken by LSU.

The fact that Dr. Daniel’s employment at LSU has gone differently than she expected, or

differently than it did at other universities, is not enough to show adverse employment

action in support of a Title VII discrimination claim, especially when the Fifth Circuit has

held that adverse employment action does not arise out of a plaintiff losing the ability to

work only “on certain projects.”178 Finding that no reasonable jury could conclude that Dr.

Daniel suffered an adverse employment action under the law, the Court concludes that

LSU is entitled to summary judgment on Dr. Daniel’s Title VII discrimination claim and her

LEDL claim.

178 Higbie v. Kerry, 605 F. App'x 304, 309 (5th Cir. 2015).

68650  32

D. Title VI and Title VII Retaliation; Claim Under La. R.S. §23:967

Dr. Daniel also contends that she suffered an adverse employment action in

retaliation for reporting discrimination in the workplace. Courts apply the same legal

standards to retaliation claims under both Title VI and Title VII.179 To establish a prima

facie case of retaliation under the traditional McDonnell Douglas framework, “the plaintiff

must establish that: (1) she participated in an activity protected by Title VII; (2) her

employer took an adverse employment action against her; and (3) a causal connection

exists between the protected activity and the adverse employment action.”180

The Court concluded above that Dr. Daniel has not established that her employer

took an adverse employment action against her. Thus, for reasons stated above with

respect to Dr. Daniel’s Title VII discrimination claim, her Title VII retaliation claim fails.

LSU is entitled to summary judgment on this claim as well. The same can be said for Dr.

Daniel’s related claim under Louisiana Revised Statute §23:967, or the Louisiana

Whistleblower Statute. That statute provides, in pertinent part:

A. An employer shall not take reprisal against an employee who in good

faith, and after advising the employer of the violation of law:

(1) Discloses or threatens to disclose a workplace act or practice that is in

violation of state law.

(2) Provides information to or testifies before any public body conducting

an investigation, hearing, or inquiry into any violation of law.

(3) Objects to or refuses to participate in an employment act or practice that

is in violation of law.

179 Peters v. Jenney, 327 F.3d 307 (4th Cir. 2003).

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

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As LSU points out, Louisiana courts have required the plaintiff to show an actual violation

of state law in order to prove a reprisal claim.181 “This,” LSU argues, “Dr. Daniel cannot

do.”182 The Court agrees. Dr. Daniel argues in her Opposition that she has demonstrated

a genuine issue of material fact as to whether LSU violated La. R.S. §23:301.183 This

Court concluded supra to the contrary, finding that no reasonable jury could find based

on the evidence that Dr. Daniel suffered adverse employment action. Moreover, while

acknowledging that “reprisal,” defined by the statute as “firing, layoff, loss of benefits, or

any discriminatory action the court finds was taken as a result of an action by the

employee that is protected,”184 is not necessarily coextensive with “adverse employment

action” under the doctrine, the Court finds that, based on the record, Dr. Daniel cannot

demonstrate that any reprisal has taken place. Accordingly, LSU is entitled to summary

judgment on Dr. Daniel’s claim under Louisiana Revised Statute §23:967.

E. Harassment

To establish a claim of hostile work environment under Title VII, a plaintiff must

prove that she (1) belongs to a protected group; (2) was subjected to unwelcome

harassment; (3) the harassment complained of was based on [membership in the

protected group]; (4) the harassment complained of affected a term, condition, or privilege

of employment; (5) the employer knew or should have known of the harassment in

question and failed to take prompt remedial action.185

181 Accardo v. Louisiana Health Servs. & Indem. Co., 2005-2377 (La. App. 1 Cir. 6/21/06), 943 So. 2d 381,

386 (“a violation of state law must be established by the plaintiff under the Whistleblower Statute in order

to prevail on the merits of the case”).

182 Rec. Doc. No. 15-1, p. 23.

183 Rec. Doc. No. 22, p. 24, n. 116.

184 La. R.S. §23:967(C)(1).

185 Stingley v. Watson Quality Ford, Jackson, MS, 836 F. App'x 286, 288 (5th Cir. 2020)(citing Hernandez

v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)).

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Harassment affects a term, condition, or privilege of employment when it is

“sufficiently severe or pervasive ‘to alter the conditions of [the victim's] employment and

create an abusive working environment.’”186 The complained-of conduct must be shown

to be “both objectively and subjectively offensive, one that a reasonable person would

find hostile or abusive, and one that the victim in fact did perceive to be so.”187 The

Supreme Court instructs that permissive factors that may be considered by the court

include “the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance.”188 “Simple teasing, offhand comments,

and isolated incidents (unless extremely serious) will not amount to discriminatory

changes in the terms and conditions of employment.”189

Dr. Daniel’s evidence of harassment centers around comments allegedly made by

Dr. Taboada between 2014 and 2016. Above, the Court concluded that the claims arising

out of these comments are prescribed. Even if they were not, the Court agrees with LSU

that the comments “are simply insufficient to meet the test of creating a hostile work

environment.”190 According to LSU, Dr. Daniel has not shown that the comments were

sufficiently severe and pervasive; in fact, it contends, the evidence demonstrates that

“[w]ith the exception of one comment, none were directed to or about Dr. Daniel. All the

comments related to discussions of Black students and their ability to be successful at

186 Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005)(quoting Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 67 (1986)).

187 Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 479 (5th Cir. 2008)(citing Faragher v. City of Boca

Raton, 524 U.S. 775, 786 (1998)).

188 Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

189 Henry v. CorpCar Servs. Houston, Ltd., 625 F. App'x 607, 611 (5th Cir. 2015)(quoting Faragher v. City

of Boca Raton, 524 U.S. 775, 788 (1998).

190 Rec. Doc. No. 15-1, p. 19.

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the SVM. Some had nothing whatsoever to do with and did not mention race at all. . .”191

Dr. Daniel counters that she has successfully demonstrated harassment because Dr.

Taboada’s comments “certainly expresses distain [sic] for Dr. Daniel’s race.”192

Dr. Taboada’s comments are clearly distinguishable from the type of conduct that

the Fifth Circuit has found to constitute harassment. For example, in Henry v. CorpCar

Services Houston, Ltd., the Fifth Circuit held that a reasonable jury could “easily find”

harassment where several black employees complained about having to attend

mandatory safety meetings on Juneteenth after several of them had requested the day

off. The CEO of their company hired a singing telegram – “a white woman in a black gorilla

suit” – to perform at the meetings. The woman in the gorilla suit “sang, danced, touched

employees, and sat in their laps. She did Tarzan yells and repeatedly referred in a

suggestive manner to ‘big black lips,’ ‘big black butt,’ and bananas. This went on for

approximately ten minutes.”193 Afterward, a manager who was present at the meeting told

one of the black employees, ““Did you enjoy it, your Juneteenth?”194 Management

arranged for another encounter between the gorilla and a black employee, calling him to

work on his day off for him to find her waiting, at which point she said, “James, I'm here

for you again. This is your big black woman. You need her. Here's—come scratch on my

little hairy butt for me.”195 Dr. Daniel cites favorably to Henry, but in the Court’s view, it is

disingenuous to suggest that Dr. Taboada’s remarks were comparable in their

offensiveness and severity to the conduct described in Henry.

191 Id.

192 Rec. Doc. No. 22, p. 20.

193 Henry v. CorpCar Servs. Houston, Ltd., 625 F. App'x 607, 608 (5th Cir. 2015).

194 Id. at 609.

195 Id.

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Likewise, the Court finds Rhines v. Salinas Constr. Techs. Ltd, another case cited

by Dr. Daniel as a comparator for severity, to be inapposite. In Rhines, the Fifth Circuit

found sufficient evidence for a jury to conclude that racial harassment was severe and

pervasive where a black employee at a construction company “was called racial epithets

by his supervisors and coworkers and [a supervisor] had made a racial joke about how to

build a ‘ni – – er” trap.’”196 The black employee was required to unload a truck of bricks

by himself and was told by his supervisor that he did not want any black people around

“while he was eating.”197 Rhines is easily distinguishable from the instant case insofar as

only one of the allegedly harassing comments was even directed at the Plaintiff herein.

Moreover, the use of despicable racial slurs is not on the same level of severity as Dr.

Taboada’s remarks, offensive though they may have been to Dr. Daniel.

The Court concludes that the conduct cited by Dr. Daniel in this case is more

analogous to cases where the Fifth Circuit found a lack of severity and pervasiveness to

be fatal to the plaintiff’s claim of harassment. For example, in Watkins v. Recreation and

Park Com’n, the plaintiff, a black male welder, alleged that “other employees used racially

charged language or symbols in his presence on three occasions”198 and that he “was

denied training opportunities and subjected to less favorable work conditions than a

similarly situated white employee.”199 The Court found that this was insufficient evidence

of harassment in part because the plaintiff described only three incidents in the course of

his eight-year career; the same could be said of Dr. Daniel’s claim. “Though we strongly

196 Rhines v. Salinas Const. Techs., Ltd., 574 F. App'x 362, 365 (5th Cir. 2014).

197 Id.

198 Watkins v. Recreation & Park Comm'n for City of Baton Rouge, 594 F. App'x 838, 839 (5th Cir. 2014).

199 Id.

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condemn the type of behavior alleged by Watkins,” the court stated, it also noted that

“Title VII is not a ‘general civility code’ for the workplace.”200 Likewise here. Dr. Taboada’s

remarks were insensitive and ill-advised, but not so extreme as to amount to a change in

the terms and conditions of Dr. Daniel’s employment.

In Peterson v. Linear Controls, Inc., the Fifth Circuit held that the plaintiff did not

allege sufficiently severe or pervasive conduct where he claimed that he was subjected

to “Muslim jokes and comments because of [his] religious beliefs (not eating pork)” and

faced “different terms and conditions of employment,” including his allegation that “he was

on a team of five white employees and five black employees, and the black employees

had to work outside and were not permitted water breaks, while the white employees

worked inside with air conditioning and were given water breaks.”201 The allegations of

harsher job conditions concerned only one ten-day period, the court explained, and the

conditions were not egregious considering that the plaintiff’s job description required him

to work outside, and he was not asked to perform tasks outside of that job description.

Without diminishing the impact of Dr. Taboada’s comments on Dr. Daniel, the Court

concludes that, applying relevant precedent, a reasonable jury could not conclude that

the remark that Dr. Daniel “did not sound black on the phone” and various comments

about black students in the context of discussing diversity at LSU SVM, rise to the level

of severe and pervasive harassment. Accordingly, LSU is entitled to summary judgment

on Dr. Daniel’s harassment claim.

200 Id. at 841.

201 Peterson v. Linear Controls, Inc., 757 F. App'x 370, 372 (5th Cir. 2019).

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IV. CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment202 by LSU is

GRANTED. Plaintiff’s claims are dismissed with prejudice.

Judgment shall be entered accordingly.

IT IS SO ORDERED.

Baton Rouge, Louisiana the 25th day of August, 2021.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

202 Rec. Doc. No. 15.

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