Allen v. Our Lady of the Lake Hospital, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

VANOY ALLEN CIVIL ACTION

VERSUS

OUR LADY OF THE LAKE HOSPITAL, NO. 19-00575-BAJ-SDJ

INC.

RULING AND ORDER

This is an employment discrimination case. Plaintiff alleges that while

working as a nurse for Defendant Our Lady Of The Lake Hospital, Inc. “OLOL”) she

suffered an unbroken pattern of racial slights and discriminations ultimately

resulting in her resignation in October 2018. Plaintiffs Amended Complaint asserts

claims of hostile work environment, constructive discharge, and retaliation due to her

race (African-American), in violation of 42 U.S.C. § 1981 and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seg. (“Title VII’). (Doc. 29).

Now before the Court is OLOL’s Motion For Summary Judgment (Doe.

46), which seeks dismissal of Plaintiffs action, arguing that regardless what Plaintiff

has alleged, the summary judgment evidence does not substantiate her claims.

Plaintiff concedes that her retaliation claim must be dismissed, but nonetheless

insists that her hostile work environment claim and constructive discharge claim

must proceed to trial. (Doc. 49). For reasons to follow, OLOL’s Motion will be granted,

and Plaintiffs action will be dismissed with prejudice.

J, BACKGROUND

A. Summary Judgment Evidence

The facts set forth below are drawn from OLOL’s Statement Of Uncontested

Material Facts In Support Of Motion For Summary Judgment (Doc. 46-2, “OLOL

SOF”), Plaintiffs Response To Defendant's Statement Of Uncontested Material Facts

(Doc. 49-1, “Opposing SOF”), and the competent record evidence submitted in support

of these pleadings.!

i. OLOL segments its nurses according to “status,” and

assigns duties and related rights and privileges

accordingly

Plaintiff is a Registered Nurse (RN). In May 2011, OLOL hired Plaintiff to

work at its hospital campus in Baton Rouge, Louisiana. At first, Plaintiff was

assigned to a “step down unit” caring for post-surgery patients. In August 2012,

however, Plaintiff was re-assigned to the Cardiac Intensive Care Unit (CICU).

Plaintiff continued working in the CICU until her resignation in October 2018.

In December 2014, Plaintiff elected to switch from full-time employment status

' This Court's Local Civil Rules set forth detailed guidance regarding summary judgment

practice. Most relevant here, Local Rule 56(c) requires that a party opposing summary

judgment shall submit “a separate, short, and concise” opposing statement of material facts

citing specifically to record evidence contradicting the moving party’s statement of material

facts, and Local Rule 56(f) warns that 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.”

In contradiction of these Rules, Plaintiffs Opposing SOF includes large swaths of

unsupported and conclusory allegations, and repetitive and immaterial information not

obviously connected to the discrete facts set forth in OLOL’s SOF. Further, Plaintiffs

Opposing SOF omits multiple facts relied on by Plaintiff in her opposition brief. Plaintiffs

scattershot approach renders a muddled (at times, indecipherable) account of the material

events preceding her resignation. Still, while under no obligation to do so, the Court has

endeavored to reconstruct these facts in the light most favorable to Plaintiff.

to “PRN (or as needed) status.” (Doc, 49-1 at 5; OLOL SOF { 1; Opposing SOF 1).

PRN nurses “provide supplemental staffing,” (OLOL SOF § 3; Opposing SOF 3%),

and “fill in the holes’ as needed.” (OLOL SOF 4 5; Opposing SOF § 5). Importantly,

PRN nurses do not have the same duties as “regularly scheduled staff nurses,” and,

in turn, do not have the same “rights and privileges of ... regularly scheduled staff

nurse([s].” (OLOL SOF ¥ 4; Opposing SOF § 48). Most relevant here, with some

exceptions, PRN nurses do “not perform in the charge role and generally would not

admit patients directly from the Operating Room immediately post open heart

surgery.” (OLOL SOF { 6; Opposing SOF § 6%).

Historically, OLOL’s expectations of its PRN nurses were “unwritten.” (Doc.

46-5 at p. 9). This changed, however, in June 2017, when Plaintiffs Supervisor

Kathleen Hussain published written guidelines for PRN nurses, aimed to “clear

expectations for everyone.” (See id.; see also OLOL SOF { 7; Opposing SOF J 7). To

2 Plaintiff “denies” this fact, yet fails to specifically cite evidence controverting that PRN

nurses “provide supplemental staffing.” (Opposing SOF at § 3). Accordingly, under Local

Rules 56(d) and 56(), the Court deems admitted that PRN nurses “provide supplemental

staffing.” See N. Frac Proppants, LLC v. Regions Bank, NA, No. 19-cv-00811, 2022 WL

1297180, at *1n.1 (M.D. La. Apr. 29, 2022) (defendant's proposed facts deemed admitted as

written due to plaintiffs’ failure to properly support their “qualified” admissions).

3 Again, Plaintiff “denies” these facts, yet fails to specifically cite evidence controverting them.

(Opposing SOF at 3-4). In fact, oddly enough, Plaintiff directs the Court’s attention to

evidence that tends to support these alleged facts, including that Plaintiffs Supervisor,

Kathleen Hussain, testified at her deposition that “the expectations were that PRN nurses

would not perform in the charge role and generally would not care for fresh heart patients.”

(id. § 3). Accordingly, the Court deems admitted that that PRN nurses lack the same duties,

rights, and privileges as “regularly scheduled staff nurses.” See supra, n.2.

4 Again, Plaintiff “denies” these facts, yet a fair reading of her evidence tends to support them

(Opposing SOF at {{ 3, 6). Thus, as before, the Court deems admitted that PRN nurses

traditionally did “not perform in the charge role and generally would not admit patients

directly from the Operating Room immediately post open heart surgery.” See supra, 0.2.

the point, these written guidelines state:

1. The nature of PRN is casual employment to provide supplemental

staffing to the home unit. Based on this PRN nurses are not required

to have the same obligations of regularly scheduled staff nurses and

as such should not have the same expectations of rights and

privileges of a regularly scheduled staff nurse.

2. PRNs will work a minimum of 2 shifts (24 hours) each and every 6

week schedule on their home unit HVCU. ...

5. Open shifts will be posted in the breakroom at the start of each

schedule

a. PRNs are to use this list to sign up for their shifts

b. PRNs may schedule shifts on a day to day or week to week basis

that is subject to the staffing needs of HVCU

c. Contact the supervisor(s) or nurse manager to schedule

d. Changes to your schedule once on the books must be made to the

unit supervisor or nurse manager.

8. PRNs will care for both ICU and telemetry level patients as is

consistent with the universal model.

a. PRNs will not admit fresh post-op hearts from the OR

b. PRNs who have demonstrated ongoing competency may care for

op day hearts after the first 4-6 hours

c. PRNs will not act as the charge nurse

d. PRNs will not precept new team members

(Doc. 46-5 at pp. 58-59).

Still, even after Supervisor Hussain published these written guidelines, PRN

nurses would sometimes be required “to assume a charge nurse responsibility or

admit a patient directly from the operating room,” depending on “census in the ICU”

and the “acuity of patients.” (OLOL SOF { 8; Opposing SOF f 8).

ii, Plaintiff complains that she was harassed and denied

incentive pay and certain shifts due to her race

Plaintiff is African American, and contends that during her tenure at OLOL

she suffered multiple insults and discriminations due to her race. Plaintiff now

admits that many of the alleged abuses set forth in her Amended Complaint did not

occur.5 Further, multiple other allegations are now contradicted by Plaintiffs own

testimony,® or not supported by competent record evidence.’ After these unsupported

allegations are removed, only the following alleged unlawful acts remain: (1) Dr. |

Boedefeld, a cardiac surgeon, subjected Plaintiff to harassment and intimidation at

various times throughout 2012 and 20138, and once again “[slometime in 2017,” (Doc.

5 Plaintiff aleged that on September 14, 2016, she attended a meeting at which Supervisor

Hussein “essentially stated that African slaves were inferior to white persons and made

additional overtly racist comments.” (Doc. 29 { 14). Now Plaintiff admits that this never

happened. (OLOL SOF {{ 18-19; Opposing SOF 4 18-19). Further, despite having alleged

that she was denied “an hourly increase in pay while caring for open ‘fresh’ heart patients,”

(Doc. 29 { 9), Plaintiff now concedes that “[claring for fresh heart patients did not result in

an increase in hourly pay” (OLOL SOF 4 15; Opposing SOF 15).

Plaintiff alleged that in September 2016 OLOL modified the education requirements for the

Resource Nurse position, which was formerly held by Rose Pettyjohn (a white nurse), so that

Plaintiff was disqualified from applying. (Doc. 29 §] 12-13). At her deposition, however,

Plaintiffs admitted that the Resource Nurse position was not backfilled after Nurse

Pettyjohn’s retirement. (See Doc. 46-4 at p. 143 (“Q. Okay. Do you know if anyone ever

assumed the position of resource nurse after Rose Pettijohn [sic] retired? A. I don’t think we

had a resource nurse. I don’t think they did after I inquired about it. I don’t believe they ever

hired another resource nurse.”); see also Doc. 46-7 at pp. 69-70).

? Plaintiff alleged that from 2017 to the end of her employment, OLOL permitted white PRN

nurses to receive training on how to perform the “Impella procedure” on cardiac patients, but

denied Plaintiff the same training. (Doc. 29 J 24-26). To support this allegation, Plaintiff

cites exclusively to a document purporting to contain notes of an “Interview of Samantha

Karla Valentine,” a RN at OLOL. (Opposing SOF § 11). Yet, these “interview notes” have not

been authenticated. Thus, they are not competent summary judgment evidence, and will be

disregarded for all purposes. See Frazier v. Cinemark USA Inc., 348 I’. App'x 6, 8 (6th Cir.

2009) (audiotape of employee-plaintiffs hearing before the Oklahoma Employment Security

Commission submitted in opposition to employer’s motion for summary judgment “was not

properly authenticated and therefore did not constitute competent summary judgment

evidence”).

29 {| 5-7, 19); (2) OLOL denied Plaintiff incentive pay compensation from 2013 to

2017, (id. ¥ 8); (8) OLOL denied Plaintiff charge nurse shifts and fresh post open

heart surgery shifts from 2014 onward, (id. If 7, 9, 10, 18); and (4) Supervisor

Hussain refused Plaintiffs request for a meeting following a “poor annual

evaluation,” (id. § 31). The Court sets forth the evidence regarding each of these

allegations below.

a. Plaintiffs interactions with Dr. Boedefeld

At her deposition, Plaintiff recounted that Dr. Boedefeld told multiple

coworkers that she was “hired ... only because [she] was black,” twice refused to

discuss cases (patients) with her, choosing instead to discuss them with white nurses,

and, twice publicly yelled at her, Plaintiff also vaguely recounted an incident

occurring in 2017, when Dr. Boedefeld “questioned” Plaintiffs supervisor after

Plaintiff was assigned to one of his patients. Plaintiff further stated her belief that

Dr. Boedefeld’s “behavior towards me since 2012 always had to do with my race.”

(Doc. 46-4 at p. 63; see generally id. at pp. 45-64).

As additional support for these allegations, Plaintiff cites deposition testimony

of Barbara Hill, her former manager in the CICU, wherein Hill stated her opinion

that Dr. Boedefeld “was racist” based on his “aura of disrespect,” and frequent

“generalized complaints” that Black nurses lacked “experience.” (See Doc. 49-2 at pp.

51-71). More specifically, Manager Hill recounted one instance when Dr. Boedefeld

summoned her to a patient’s room demanding that a Black nurse be fired for failing

to respond to the patient’s requests for pain medicine. Dr. Boedefeld immediately

“changed his tune,” however, when the patient clarified that it was a white nurse that

failed to respond, not a Black nurse. Thereafter, Dr. Boedefeld allegedly said to

Manager Hill: “[D]on't worry about it. Don't worry about firing anybody. She's a

complainer. Don't worry about it. She's probably confused, anyway.” (Doc. 49-2 at p.

45; see id. at pp. 43-47). Based on this interaction (among others), Manager Hill stated

that Dr. Boedefeld treated Black nurses differently than white nurses, and,

consequently, that Black nurses’ “jobs were on the line every day.” (Ud. at p. 52).8

b. Discriminatory incentive pay practices

When the CICU was short-staffed, Supervisor Hussain could (and would) “offer

additional shift incentives to secure a nurse to work a shift.” (OLOL SOF q 232;

Opposing SOF { 22). Plaintiff contends that from 2013 to 2017, she was

systematically denied opportunities for incentive pay. (Doc. 29 4 8). Significantly,

however, Plaintiff's only evidence supporting her claim that she was denied incentive

pay is her own deposition testimony, where she admitted: (1) she had been offered

incentive pay on occasion; (2) she could not identify a specific instance when she was

denied incentive pay; and (3) she was not aware of any other Black nurses that were

denied incentive pay. (Doc. 46-4 at pp. 133-34). Indeed, Plaintiff explained that she

only believed she was wrongfully denied incentive pay opportunities because she

overheard conversations among white nurses wherein they claimed to have “come in

for IP [incentive pay].” (/d.).

8 For its part, OLOL does not dispute that Dr. Boedefeld behaved boorishly. (See Doc. 46-1 at

pp. 18-19). Rather, OLOL insists that Dr. Boedefeld was equally abrasive to Black nurses

and white nurses alike, and that his treatment of Plaintiff was based on “his [professional]

opinion regarding her competency as a nurse,” not her race. (/d.).

ce. Discriminatory shift assignment practices

Additionally, Plaintiff contends that from 2014 onward, OLOL systematically

refused to schedule her for charge nurse shifts or for fresh post open heart surgery

shifts—t.e., precisely the shifts that were not traditionally available to PRNs under

OLOL’s unwritten and written guidance. In support of these allegations, Plaintiff

again cites exclusively to her own deposition testimony, where she recounted that she

was “often” denied such shifts, and specifically recalled one instance in February 2018

when she requested to work a shift in the CICU, and the shift was awarded instead

to two “full-time nurses” from another unit. (Doc. 46-4 at pp. 1386). Again, however,

Plaintiff testified that she was not aware of any other Black nurses suffering the same

treatment. (Doc. 46-4 at pp. 138).

Plaintiff testified that she complained multiple times to her managers

regarding OLOL’s discriminatory shift assignment practices, and was eventually

informed that she was not being assigned charge nurse shifts or fresh post open heart

surgery shifts because she “was PRN.” (Doc. 46-4 at p. 145).9

In her opposition memo (but not in her Opposing SOF) Plaintiff asserts that “Ninety percent

of the time, white nurses were given the charge nurse shift,” citing to deposition testimony

of Clinical Service Representative (CSR) Melissa White. (Doc. 49 at 5). Conceivably, this fact,

if established, could be relevant to Plaintiffs remaining claims of hostile work environment

and constructive discharge. However, CSR White’s testimony on this point was hardly

definitive. Indeed, despite having previously interviewed with Plaintiffs counsel, at her

deposition CSR White initially could not “recall” making the statement that charge shifts

were “given to white nurses ... about 90 percent of the time.” (Doc. 49-5 at p. 6). Only after

counsel “refreshed” her memory with a recording of the prior interview did CSR admit her

“belief that about 90 percent of the time the white nurses would be given charge nurse shifts.”

(id. at p. 7). Immediately thereafter, however, CSR White provided a qualification, stating

“because it may have had seven Caucasian nurses versus three black nurses, but the seven

Caucasian nurses may have had more experience at being a charge nurse.” (Jd.).

d. Plaintiffs performance evaluation

Finally, Plaintiff contends that in June 2018 she received a poor annual

evaluation, requested to discuss it with Supervisor Hussain, and was refused. In

support of these allegations, Plaintiff again cites exclusively to her own deposition

testimony:

@. ... Do you know who completed the poor evaluation referenced in

paragraph 31 of your amended complaint?

A. If it’s an annual review it would have been the manager, Kathleen

[Hussain].

@. Kathleen, okay. And did you ask her to review the evaluation with

you?

A, Several times.

Q. And she refused to de so?

A, Correct.

Q. Did she give you a reason why she was refusing to review it?

A. No, she didn’t.

Q. What about the evaluation made you believe that it was, quote,

another instance of racial discrimination and harassment?

A. I felt like on some of the points and I don’t remember what it was at

the time, but reviewing it 1 was scored lower than I felt like I deserved.

Q. Did you see anyone else’s evaluations that were done around this time

period?

A. No, I didn’t.

Q. Are you aware of any other nurses on the unit who were African-

American who received poor evaluations around this time period?

A. African-American, white, anybody, no.

Unfortunately, Counsel did not press to clarify what CSR White meant by this qualification,

which renders her testimony virtually inserutable,

As a rule, summary judgment evidence “must be particularized, not vague or

conclusory.” Guzman. v. Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021). In sum, the

Court determines that this testimony is too vague and conclusory for purposes of creating an

issue of fact at summary judgment. Accordingly, it is disregarded. See id.

(Doc. 46-4 at pp. 152-153). The parties agree that “[n]o other Black nurses or White

nurses received a ‘poor’ evaluation around the time that [Plaintiff] ... received a poor

review.” (OLOL SOF { 12; Opposing SOF 12).

e. Additional insults

In addition, Plaintiffs Opposing SOF recounts two more incidents:

First, on an unspecified date, during a “general staff meeting” “surrounded by

all white coworkers,” Supervisor Hussain said to Plaintiff, “Vanoy you don’t have a

voice,” which Plaintiff interpreted “to mean that because she was Black, she should

not say anything.” (Doc. 49-1 at p. 2; see Doc. 46-4 at pp. 99-101).

Second, in August 2016, a co-worker publicly referred to Plaintiff as a “bitch.”

(Doc, 49-1 at p. 2; see Doc. 46-7 at pp. 36-48). Plaintiff complained of this interaction

to Supervisor Hussain, who responded that it is “okay” to use the word “bitch”

between friends, while knowing that Plaintiff and this particular co-worker were not

friends. (Doc. 46-4 at p. 74).

iii, Plaintiff resigns in October 2018 citing “racism and

retaliation”

On October 17, 2018, Plaintiff tendered her written resignation to OLOL citing

“constant vicious lies and acts of racism and retaliation.” (Doc. 49-10 at p. 1).

B. Procedural History

On December 15, 2017—~prior to her resignation-—Plaintiff filed a charge of

race discrimination and retaliation with the Equal Employment Opportunity

Commission (EEOC). (Doc. 1 at § 33). On June 7, 2019-—-after her resignation—the

EEOC issued Plaintiff a right-to-sue letter. (fd. at ] 34).

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On September 3, 2019, Plaintiff initiated this action. Plaintiffs original pro se

Complaint alleged race and age discrimination, retaliation, hostile work

environment, and other violations of federal and state law. (Doc. 1).

Thereafter, Plaintiff retained counsel, and on November 8, 2021 submitted her

Amended Complaint, limiting her action to claims of (1) hostile work environment,

(2) constructive discharge, and (3) retaliation. (Doc. 29).

Now OLOL moves for summary judgment, arguing that Plaintiff has failed to

develop any evidence regarding multiple essential elements of her claims, including

an adverse employment action, less favorable treatment, OLOL’s pretextual

motivation, and the type of severe and pervasive harassment necessary to show a

hostile work environment or constructive discharge. (Doc. 46-1; see also Doc. 55).

Plaintiff opposes OLOL’s Motion, in part. Notably, Plaintiff now abandons her

retaliation claim (Doc. 49 at p. 34), but still insists that her hostile work environment

claim and her constructive discharge claim must proceed to trial (id. at pp. 14-34; see

also Doc. 65). Alternatively, Plaintiff argues that summary judgment is premature

because she has filed a motion seeking to compel certain additional discovery from

OLOL, which remains pending. (Doe. 49 at pp. 34-35).

Il. ANALYSIS

A. Standard

Federal Rule of Civil Procedure (“Rule”) 56(a) provides that the 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.”

il

Fed. R. Civ. P. 56(a). If the movant bears its burden, the nonmoving party “must do

more than simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

“Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no ‘genuine issue for trial.” Id. at 587. Stated

differently, “[i]f the party with the burden of proof cannot produce any summary

judgment evidence on an essential element of [her] claim, summary judgment is

required.” Geiserman v. MacDonald, 893 F.2d 787, 798 (5th Cir. 1990).

B. Discussion

i. Hostile work environment

Generally, to establish a race-based hostile working environment claim, a

plaintiffemployee must prove: (1) she belongs to a protected group; (2) she was

subjected to unwelcome harassment; (3) the harassment complained of was based on

her race; (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." Ramsey v. Henderson, 286 F.3d

264, 268 (5th Cir. 2002). The fifth element does not apply, however, where a

10 Plaintiff pursues her hostile work environment claim under 42 U.S.C. § 1981, not Title VIL.

For all practical purposes, however, the distinction is without difference because the Court

“consider[s] racial discrimination and retaliation claims based on Title VIE and 42 U.S.C. §

1981 under the same rubric of analysis.” See Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399

(5th Cir. 2021) (quotation marks and alterations omitted)); cf. Johnson v. Halstead, 916 F.3d

410, 420 (5th Cir. 2019) (“[R]etalation claims under § 1981 and Title VII are parallel causes

of action, which means they require proof of the same elements in order to establish liability.”

(quotation marks and alterations omitted)), Accordingly, the Court addresses Plaintiffs

hostile work environment claim according to the elements generally required to establish

OLOL’s lability, without specific citation to the various sources of law.

12

supervisor committed the harassment. Celestine v. Petroleos de Venezuella SA, 266

F.3d 343, 353 (5th Cir. 2001), abrogated on other grounds by Nat'l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101 (2002).

OLOL challenges the second, third, and fourth elements of Plaintiffs claim,

contending that Plaintiff cannot show that she was harassed; that even if she was

harassed any such harassment was not based on her race; and, in any event, any

harassment Plaintiff endured was not sufficiently severe or pervasive to affect a term

or condition of her employment. (See Doc. 46-1 at pp. 17-22).

For present purposes, Plaintiff has carried her burden as to the second and

third elements of her claim-—that is, she has produced sufficient evidence to show

that she endured some unwelcome race-based harassment. Plaintiffs deposition

testimony, coupled with Manager Hill’s deposition testimony, creates a substantial

dispute regarding whether Dr. Boedefeld harassed and bullied Plaintiff because she

is Black. In particular, the Court notes Manager Hill’s testimony that Dr. Boedefeld

frequently made “generalized complaints” that Black nurses lacked “experience,” as

well as Manager Hills testimony regarding Dr. Boedefeld’s immediate about-face

upon learning that a white nurse (not a Black nurse) failed to respond a patient’s

request for pain medication.

Still, this leaves the issue of whether the harassment Plaintiff endured affected

a term, condition, or privilege of employment. “For harassment to be sufficiently

severe or pervasive to alter the conditions of the victim's employment, the conduct

complained of must be both objectively and subjectively offensive.” E.E.O.C. v.

13

WC&M Enterprises, Inc., 496 F.3d 398, 399 (5th Cir. 2007) (citing Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21-22 (1993)).

Thus, not only must the victim perceive the environment as hostile, the

conduct must also be such that a reasonable person would find it to be

hostile or abusive. To determine whether the victim's work environment

was objectively offensive, courts consider the totality of the

circumstances, including (1) the frequency of the discriminatory

conduct; (2) its severity; (3) whether it is physically threatening or

humiliating, or merely an offensive utterance; and (4) whether it

interferes with an employee's work performance. No single factor is

determinative. In short, a showing that the employee's job performance

suffered is simply a factor to be considered, not a prerequisite. .,. [E]ven

without regard to tangible effects, the very fact that the discriminatory

conduct was so severe or pervasive that it created a work environment

abusive to employees because of their race, gender, religion, or national

origin offends Title VII's broad rule of workplace equality.”

id. at 399-400 (quotation marks, citations, and alterations omitted).

Here, Plaintiffs allegations aside, the sum of Plaintiff's competent summary

judgment evidence shows the following: Dr. Boedefeld publicly complained that

Plaintiff was hired only because she was Black (in 2012/2018); Dr. Boedefeld twice

refused to discuss cases with Plaintiff Gin 2012/2013); Dr. Boedefeld twice publicly

yelled at Plaintiff Gn 2012/2013); Dr. Boedefeld once “questioned” Plaintiffs

supervisor (in 2017); a co-worker once publicly referred to Plaintiff as a “bitch” (Gn

2016); Supervisor Hussain once said at a staff meeting “Vanoy you don’t have a voice”

(unspecified date); Plaintiff once requested to work a shift in the CICU, and the shift

was awarded instead to two “full-time nurses” from another unit (in 2018); and,

finally, Supervisor Hussain once refused Plaintiffs request for a meeting to discuss

14

Plaintiffs annual performance review (in 2018).11

All told, over the course of seven years and five months at OLOL, Plaintiff

suffered 10 insults (minimal frequency). Just one arguably involved an inherently

racist remark, slur, or confrontation (Dr. Boedefeld’s comment that Plaintiff was

“hired ... only because [she] was Black”—minimal severity). None involved a physical

threat, though some were potentially humiliating (e.g., learning of rumors that

Plaintiff was hired only because she was Black, and being publicly yelled at, called a

“pitch,” and told “you don’t have a voice”). Finally, and importantly, there is no

evidence showing whether (or how) these isolated incidents impacted Plaintiff's work

performance. Even assuming that all of the foregoing slights were racially motivated,

the aggregate of these insults falls well-short of what is required to save a hostile

work environment claim from summary judgment. See, e.g., Simmons v. Triton

Elevator, LLC, 557 F. Supp. 3d 767, 775-779 (N.D. Tex. 2021) (Boyle, J.) (granting

summary judgment and dismissing plaintiffs hostile work environment claim due to

plaintiffs failure to establish sufficiently “severe and pervasive” harassment despite

plaintiffs testimony that in just seven months he endured multiple racial epithets,

4 As set forth above, Plaintiff also alleges systemic discrimination in shift assignments and

incentive pay practices at OLOL., Plaintiffs evidence supporting these allegations, however,

was vague, at best, consisting solely of her own deposition testimony. Indeed, Plaintiff

specifically identified only one instance when she was passed over for a shift (when she

requested to work in the CICU in February 2018), and could not recall any occasion when

she was denied opportunities for incentive pay. Likewise, Plaintiff could not identify any

other Black colleagues that faced the same (or even similar) mistreatment.

Again, summary judgment evidence “must be particularized, not vague or conclusory.”

Guzman, 18 F 4th at 161; see supra n.9. Here, Plaintiffs evidence of systemic discrimination

in shift assignments and incentive pay practices lacks sufficient particularity to be credited

at summary judgment, and will also be disregarded.

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slurs, and offensive interactions with coworkers, where plaintiff failed to show that

the remarks were “physically threatening or particularly humiliating,” and further

failed to show “how the alleged harassment interfered with his performance”

(discussing cases)). Plaintiff has not carried her burden as to the fourth element of

her hostile work environment claim, thus requiring dismissal. Geiserman, 893 F.2d

at 793.

li. Constructive discharge

“To prove a constructive discharge, a ‘plaintiff must establish that working

conditions were so intolerable that a reasonable employee would feel compelled to

resign.” Brown v. Kinney Shoe Corp., 287 F.8d 556, 566 (5th Cir. 2001) (quoting

Faruki v. Parsons, 123 F.3d 315, 319 (6th Cir. 1997)). Critically, “[clonstructive

discharge requires a greater degree of harassment than that required by a hostile

environment claim.” fd.

Having determined that the isolated incidents of harassment that Plaintiff

allegedly endured cannot sustain her hostile work environment claim, the Court

further determines that they are likewise insufficient to sustain her constructive

discharge claim. Plaintiff's constructive discharge claim will also be dismissed.

ili, Plaintiff's claims will be dismissed despite Plaintiffs

pending motion to compel

In a last ditch attempt to avoid dismissal, Plaintiff argues that summary □

judgment is premature because her motion to compel additional discovery from OLOL

remains pending. (Doc. 49 at pp. 34-35). The Court is not swayed.

Rule 56(d) sets forth the procedure by which a nonmoving party may oppose a

16

motion for summary judgment on the ground that it is premature, stating that “fifa

nonmovant shows by affidavit or declaration that, for specified reasons, it cannot

present facts essential to justify its opposition, the court may: (1) defer considering

the motion or deny it; (2) allow time to obtain affidavits or declarations or to take

discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d)}. Here,

Plaintiff's counsel has submitted an affidavit explaining that the additional discovery

Plaintiff requires “regards potential comparators and is needed evidence [sic]

relevant to [Plaintiffs] Title VII and § 1981 claims.” (Doc. 49-9 at 9 9. Certainly

additional “comparator” evidence may be relevant to claims of disparate treatment,

Okoye v. Univ. of Texas Houston Health Sci. Cir., 245 F.3d 507, 512-18 (5th Cir.

2001), and retaliation, see Brown v. Wal-Mart Stores F., L.P., 969 F.3d 571, 580 (th

Cir. 2020), as revised (Aug. 14, 2020). The crux, however, is that Plaintiff has now

abandoned all such claims. To the point, comparator evidence will not save Plaintiffs

only remaining claims of hostile work environment and constructive discharge

because such evidence is not relevant to the dispositive issue of whether Plaintiff was

subjected to objectively severe, pervasive, and/or intolerable harassment.!2 Thus,

2 The Court further finds that Plaintiff has waived the right to argue that comparator

evidence is relevant to her remaining claims of hostile work environment and constructive

discharge by failing to even brief the issue. See N. Frac Proppants, 2022 WL 1297180, at *8

n.9 “Generally speaking, a party waives an issue by failing to adequately brief it. Moreover,

the Local Rules require that parties support their arguments with “a concise statement of

reasons ... and citations of authorities,” M.D. La. LR 7(d), and this Court has repeatedly

admonished that it will not speculate on arguments that have not been advanced, or attempt

to develop arguments on a party's behalf.” (citation omitted)).

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Plaintiffs request to delay judgment until after a decision is rendered on her motion

to compel will be denied.

II. CONCLUSION

This Court has repeatedly admonished that summary judgment is about

evidence, and that a party that fails to direct the Court's attention to any evidence

supporting her claims cannot carry her burden of showing a genuine, material

dispute. See, e.g., Loolara v. Nat'l Flood Ins. Program, 551 F. Supp. 3d 626, 630 (M.D.

La. 2021) (Jackson, J.). Here, at significant risk, Plaintiff disregarded the Court’s

Local Rules regarding summary judgment practice, see supra n. 1, and ultimately

failed to present the evidence required to create a genuine dispute necessitating trial.

Accordingly,

IT IS ORDERED that OLOL’s Motion For Summary Judgment (Doc. 46)

be and is hereby GRANTED as set forth herein.

IT IS FURTHER ORDERED that the above-captioned action be and is

hereby DISMISSED WITH PREJUDICE.

Judgment shall issue separately. it

Baton Rouge, Louisiana, this 29 tap of July, 2022

* aS)

bead

JUDGE BRIAN A. 4AGKSON

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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