Barnett v. Louisiana Department of Health

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MICHELLE BARNETT

CIVIL ACTION

VERSUS

NO. 17-1793-JWD-SDJ

LOUISIANA DEPARTMENT

OF HEALTH

RULING AND ORDER

This matter comes before the Court on the Motion for Summary Judgment Pursuant to Fed.

R. Civ. Proc. 56 on Plaintiff’s Remaining Claims (the “Motion”) (Doc. 58) filed by Defendant the

Louisiana Department of Health (“LDH” or “Defendant”). Plaintiff Michelle Barnett (“Barnett”

or “Plaintiff”) opposes the Motion. (Doc. 68.) Defendant has filed a reply. (Doc. 69.) Oral

argument is not necessary. The Court has carefully considered the law, the facts in the record, and

the arguments and submissions of the parties and is prepared to rule. For the following reasons,

Defendant’s Motion is granted.

I. Introduction and Summary

A. Overview

On December 22, 2017, Plaintiff filed suit in this Court asserting a total of seven claims

under federal and state law. (See Doc. 1; see also Doc. 43 at 13.) As of this date, Plaintiff’s only

remaining claims are for: (1) discrimination and retaliation in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); and (2) wage discrimination in

violation of the Equal Pay Act occurring after December 22, 2014.1

1 On March 10, 2020, the Court dismissed with prejudice all claims for violations of the Equal Pay Act that occurred

before December 22, 2014 for being untimely. (Doc. 43 at 25.) As such, the only remaining Equal Pay Act claims

before this Court are those that occurred after that date.

Defendant moves to dismiss all of Plaintiff’s remaining claims. Having carefully

considered the arguments, law, and evidence, the Court will grant the Motion as it relates to

Plaintiff's Title VII discrimination and retaliation claims. More specifically, summary judgment is

granted on Plaintiff’s Title VII discrimination claims because: (1) her discrimination claims for

acts occurring before March 4, 2015 are time-barred; (2) her discrimination claims for acts

occurring after June 20, 2016 have not been properly exhausted; and (3) with respect to her

actionable claims of discrimination, she failed to produce competent summary judgment evidence

to identify appropriate comparators. As for Plaintiff’s Title VII retaliation claims, summary

judgment is granted because: (1) her retaliation claims for acts occurring before March 4, 2015 are

time-barred; and (2) some of her retaliation claims for acts occurring after March 4, 2015 have not

been properly exhausted; and (3) with respect to her actionable claims of retaliation, she failed to

meet her prima facie burden of establishing causation.

Finally, the Court will also grant the Motion as it relates to Plaintiff’s Equal Pay Act claims

because Plaintiff has failed to satisfy her prima facie case.

II. Preliminary Issues

A. There is No Claim for Age Discrimination under Title VII

As a preliminary note, the Court will briefly address Plaintiff’s argument that she was

discriminated against based on her age in violation of Title VII. Defendant, too, lumps Plaintiff’s

claims of age discrimination together with her claims of gender discrimination. However, there is

no claim for age discrimination under Title VII. Instead, an employee claiming age discrimination

under federal law must proceed under the Age Discrimination in Employment Act (“ADEA”). See

McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 461–62 (5th Cir. 2005) (recognizing

that the Texas statute at issue was “substantively identical to its federal equivalent in Title VII with

the exception that federal law makes age discrimination unlawful under the ADEA”) (cleaned up);

see also 42 U.S.C. § 2000e–2(a) (by its terms, Title VII prohibits discrimination based on “race,

color, religion, sex, or national origin”).

Plaintiff originally sought relief under the ADEA, but her ADEA claims were dismissed

by this Court on March 19, 2019. (Doc. 33 at 1, 21.) Thus, there is no age discrimination claim

properly before this Court. As such, the Court will disregard Plaintiff’s arguments concerning age

discrimination and focus only on whether Plaintiff was discriminated against based on gender or

sex under Title VII.

B. Violations of Local Rule 56

1. Plaintiff’s Failure to Properly Controvert Facts Contained in

Defendant’s Statement of Facts

A party opposing a motion for summary judgment is required to “submit with its opposition

a separate, short, and concise statement of material facts” that admits, denies, or qualifies the facts

set forth in the moving party’s statement of material facts. M.D. La. Local Rule 56(c). In denying

or qualifying a fact, the opposing party must support each denial or qualification with a citation to

the specific page or paragraph of identified record material supporting the assertion. M.D. La.

Local Rule 56(c), (f). Facts contained in a supporting or opposing statement of material facts, if

supported by specific record citations, are deemed admitted “unless properly controverted.” M.D.

La. Local Rule 56(f).

Here, Defendant filed with its Motion a statement of material facts it argues are not in

dispute. (Defendant’s Statement of Material Facts Not in Dispute (“Def. SMF”), Doc. 58-1.) In

response, Plaintiff filed an opposing statement of facts. (Plaintiff’s Rule 56.2 [sic] Statement of

Disputed Material Facts in Opposition to Defendant [LDH] (“Pl. OSMF”), Doc. 68-1.)

In sum, Plaintiff failed to properly controvert the facts set forth in Defendant’s SMF (Doc.

58-1), as none of Plaintiff’s denials comply with M.D. La. Local Rules 56(c) and 56(f). A closer

inspection of the portions of the affidavit cited by Plaintiff to support her denials shows that a

majority of her evidence does not actually contradict the facts set forth by Defendant. Thus, the

facts set forth in Defendant’s SMF are deemed admitted. Accordingly, to the extent that the facts

contained in Defendant’s SMF are uncontroverted by Plaintiff and the evidence, and are material,

they are deemed admitted. The Court notes that, while it has considered all of Defendant’s SMF,

only those facts that are material are incorporated into this Ruling.

2. Plaintiff’s “Additional Facts” and Defendant’s Reply Statement of

Material Facts

Defendant additionally argues that Plaintiff’s OSMF sets forth additional facts beyond

mere explanation in support of her denials but fails to “contain in a separately titled section

additional facts, as required by Local Rule 56(c).” (See Defendant’s Local Rule 56(d) Reply

Statement of Material Facts (“Def. Reply SMF”), Doc. 69-1 at 1.) Although Defendant contends

that Plaintiff’s OSMF violates M.D. La. Local Rule 56(c), Defendant nevertheless “treats and

deems the arguments supporting [Plaintiff’s] denials, and the allegations contained in the

affidavits, as ‘additional facts,’ ” and thus filed a reply statement “to object” to those individual

statements of fact in accordance with M.D. La. Local Rule 56(d). (Id.) As explained below, the

Court’s rulings on these objections is contained in a supplement to this ruling that has been

separately filed. (See Doc. 73.)

In the event the opposing party wishes to go beyond simply admitting, denying, or

qualifying the moving party’s facts by presenting additional facts, their “opposing statement may

contain in a separately titled section additional facts,” each of which is supported by specific record

citations. M.D. La. Local Rule 56(c). However, whether Plaintiff’s OSMF violates this Rule is

immaterial here because it essentially repeats the information set forth in Plaintiff’s affidavit, and

“case law recognizes that the Court can still consider record evidence to determine if there is a

factual dispute.” Braud v. Wal-Mart Stores, Inc., No. 17-320, 2019 WL 3364320, at *4 (M.D. La.

July 25, 2019) (deGravelles, J.) (citing Smith v. Brenoettsy, 158 F.3d 908, 910 (5th Cir. 1998)

(holding that, where plaintiff failed to oppose the motion for summary judgment, the facts in the

“Statement of Undisputed Facts” were admitted, “except to the extent that the ‘facts’ in the

‘Statement of Undisputed Facts’ are contradicted by ‘facts’ in other materials attached to his

motion for summary judgment.” (citation omitted)); Porter v. Dauthier, No. 14-41, 2015 WL

5611647, at *8, *13 (M.D. La. Sept. 23, 2015) (deGravelles, J.)). Moreover, the reason for

considering summary judgment evidence—including Plaintiff’s affidavit—is even more justified

here, as most of the facts material to this dispute are not set forth in Defendant’s SMF.

Even if the Court were to consider the additional facts contained in Plaintiff’s OSMF,

Defendant’s Reply SMF does not properly contradict those facts. Local Rule 56(d) directs the party

submitting a reply statement of material facts to admit, deny, or qualify the additional facts

submitted by the opposing party and requires each denial or qualification to be supported by a

specific record citation. M.D. La. Local Rule 56(d). Although the Def. Reply SMF purports to deny

and qualify facts set forth by Plaintiff, it fails to actually dispute the truth of the facts set forth by

Plaintiff. Instead, the Def. Reply SMF is replete with legal arguments. Moreover, Defendant

violated Local Rule 56(f) by failing to provide record citations for any of the replies contained

therein. (See Def. Reply SMF, Doc. 69-1 at 27–43.) Therefore, to the extent the Def. Reply SMF

attempts to deny or qualify the additional facts set forth by Plaintiff, those statements will not be

considered. M.D. La. Local Rule 56(f).

C. Evidentiary Issues

Defendant submitted a large number of specific evidentiary objections. (See Def. Reply

SMF, Doc. 69-1 at 2–26.) Specifically, Defendant objects to certain parts of three affidavits filed

on behalf of Plaintiff. For the sake of judicial efficiency, the Court’s rulings on those objections is

not included herein, but is instead contained in a supplemental ruling separately filed in this case.

(See Doc. 73.)

III. Relevant Background

Plaintiff is a fifty-seven year old woman who worked for Defendant, LDH, in various

positions from 2011 through 2017. 2 (Def. SMF, ¶¶ 1–2, Doc. 58-1.) On April 29, 2011, Plaintiff

was hired by LDH as a Medicaid Program Manager 2 (“PM2”). (Id. ¶ 2.) Thereafter, on March 1,

2012, she moved from LDH’s Medicaid division to its Office of Behavioral Health (“OBH”) and

continued working there as a PM2. (Id.) Subsequently, on August 25, 2014, she was transferred

back to a Medicaid PM2 position, and she remained in that position until she was transferred to a

position with the Louisiana Division of Administration on November 20, 2017. (Id.)

On December 22, 2017, Plaintiff filed suit in this Court against LDH asserting a total of

seven claims under federal and state law. (See Doc. 1.) She specifically alleged that, from 2012

through 2017, LDH discriminated against her on the basis of her age and gender and retaliated

against her for opposing the discrimination perpetuated by LDH. (Id.) On March 19, 2019, this

Court dismissed without prejudice Plaintiff’s state law and ADEA claims. (Doc. 33.)

Subsequently, on March 10, 2020, this Court dismissed with prejudice all claims for violations of

2 Although Plaintiff purportedly denies this statement of fact, she does not properly controvert this fact in accordance

with M.D. La. Local Rule 56, nor does the evidence cited in support of her denial contradict this fact. (See Pl. OSMF,

¶ 2, Doc. 68-1.) Consequently, the fact is deemed admitted. As discussed above, the same is true for most of the facts

set forth in the Def SMF. Therefore, when the Def. SMF is cited by paragraph number to support a particular fact, that

fact is considered undisputed and thus admitted under Local Rule 56. See M.D. La. Local Rule 56(c), (f).

the Equal Pay Act occurring before December 22, 2014. (Doc. 43.) Thus, as explained above, the

only remaining claims before the Court are Plaintiff’s Title VII discrimination and retaliation

claims and her Equal Pay Act claims based on alleged violations that occurred after December 22,

2014.

Plaintiff’s Title VII claims are based, in large part, on Defendant’s failure to promote or

hire her for a substantial number of positions she applied for. Between June of 2012 and December

of 2021, Plaintiff applied to more than 100 positions within LDH. (Pl. OSMF, ¶ 2, Doc. 68-1; Pl.

Aff., ¶ 107, Doc. 68-2.) Of these hundreds of positions, the position discussed most extensively is

the “original OBH” Program Manager 4 position referenced below. (Pl. OSMF, ¶ 16, Doc. 68-1.)

In May of 2012, Plaintiff’s supervisor, Randy Lemoine, announced his retirement. (Pl. Aff.,

¶ 10, Doc. 68-2.) At the time, Lemoine was a Program Manager 4 (“PM4”) and the Section Chief

of Business Intelligence. (Id.) He suggested to Plaintiff that she apply for his job, hereinafter

referred to as “the PM4 Position,” and he began training her on the duties for that position. (Id.)

Thereafter, in the summer of 2012, LDH for the first time posted the opening for the PM4 Position.

(Id. ¶ 11.) Plaintiff applied for the position and was interviewed; during her interview she claims

she was told that she ranked as the top applicant among all of the qualified applicants. (Id. ¶ 14.)

Joshua Hardy, a young male, was also interviewed for this position, despite the fact that he did not

meet the qualifications required for the position. (Id. ¶ 15.) LDH did not hire anyone into the

position that year, but instead left the position unfilled. (Id. ¶ 21.)

In February of 2013, LDH posted a second job announcement for the PM4 Position. (Id. ¶

25.) LDH closed the posting on February 18, 2013; on the next day, Ruby Triggs—the OBH

Human Resources Director at that time—allegedly told Plaintiff that the decision had already been

made the year before and that Hardy would be placed into the position as he had previously been

promised. (Id. ¶ 26.) According to Plaintiff, she told Triggs that the only reason Hardy would being

promoted to the PM4 Position was because he was a young, white male, and that, if LDH ultimately

hired him into that position, she would take legal action. (Id. ¶¶ 27, 29.) Subsequently, LDH again

decided to leave the PM4 Position open for the remainder of 2013. (Id. ¶ 33.) Joshua Hardy was

never promoted to the PM4 Position. Plaintiff claims that, at some point thereafter, the PM4

Position was filled by two other males, both of whom she argues were less qualified than her for

the role. (Id. ¶¶ 40, 44–45.)

To support her Title VII claims, Plaintiff also points to other discrete acts, including: (1)

other positions she applied for that LDH subsequently filled with males, who she argues were less

qualified than her; (2) her move to the Office of the Secretary Program Integrity (“PI”) section3 of

LDH in 2014, where she argues the retaliation against her became significantly worse, (id. ¶¶ 50,

52); (3) being forced by her supervisors in PI to engage in gender discrimination by being forced

to hire an unqualified male, (id. ¶¶ 67–69, 73); and (4) her transfer to a position with the Louisiana

Division of Administration on November 20, 2017, which she argues amounted to a constructive

discharge, (Pl. OSMF, Doc. 68-1 at 2). Additionally, in support of her Equal Pay Act claims,

Plaintiff maintains that several male employees were treated differently than her in terms of

compensation and raises.

When necessary and relevant to the Motion, the Court will elaborate upon these facts in

more detail in its analysis below.

IV. Summary Judgment Standard

3 The parties’ accounts of where Plaintiff worked within LDH in 2014 may be in dispute. Defendant submits that

Plaintiff worked as a Medicaid PM2 effective August 25, 2014. (Def. SMF, ¶ 2, Doc. 58-1.) Plaintiff attempts to deny

this statement of fact, but in her explanation supporting that denial, she does not specifically claim that she was not a

Medicaid PM2 as of August 25, 2014. (See Pl. OSMF, ¶ 2, Doc. 68-1.) However, other portions of Plaintiff’s affidavit

indicate that she was moved to the PI section sometime in 2014. (Pl. Aff., ¶ 50, Doc. 68-2.) The Court need not

elaborate further on this seemingly disputed fact because, as explained below, Plaintiff’s Title VII claims arising out

of her alleged move to the PI section are time-barred.

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “The movant bears the initial burden and must identify ‘those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)). However, “the

movant ‘need not negate the elements of the nonmovant's case.’ ” Id. (quoting Boudreaux v. Swift

Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc))). That is, “[a] movant for summary judgment need not set forth

evidence when the nonmovant bears the burden of persuasion at trial.” Wease v. Ocwen Loan

Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019) (citing Celotex, 477 U.S. at 323 (“we find no

express or implied requirement in Rule 56 that the moving party support its motion with affidavits

or other similar materials negating the opponent's claim.”) (emphasis in original)). “The moving

party may meet its burden to demonstrate the absence of a genuine issue of material fact by

pointing out that the record contains no support for the non-moving party's claim.” Id. (citing Stahl

v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts. . . .

[T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine

issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)

(internal citations omitted). The non-mover's burden is not satisfied by “conclusory allegations, by

unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted).

Ultimately, “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.” Matsushita Elec. Indus. Co., 475

U.S. at 587 (cleaned up). Further:

In resolving the motion, the court may not undertake to evaluate the credibility of

the witnesses, weigh the evidence, or resolve factual disputes; so long as the

evidence in the record is such that a reasonable jury drawing all inferences in favor

of the nonmoving party could arrive at a verdict in that party’s favor, the court must

deny the motion.

Int’l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (internal citations

omitted).

V. Discussion

A. Exhaustion of Administrative Remedies under Title VII

“A plaintiff asserting a claim under Title VII must exhaust administrative remedies before

pursuing the claim in district court.” Bracken v. Welborn, No. 20-72, 2021 WL 237693, at *4

(M.D. La. Jan. 25, 2021) (Dick, C.J.) (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378–

79 (5th Cir. 2002); Davis v. Fort Bend Cty., 893 F.3d 300, 303 (5th Cir. 2018) (citing 42 U.S.C. §

2000e–5(e)(1))). Administrative exhaustion occurs when a plaintiff files a timely charge with the

Equal Employment Opportunity Commission (“EEOC”) and subsequently receives from the

EEOC a statutory notice of the right to sue the employer named in the charge. Id. (citations

omitted); 42 U.S.C. § 2000e–5(e)(1). Thereafter, the plaintiff has ninety days from receipt of the

right-to-sue notice to file an action in court. Taylor, 296 F.3d at 379 (citations omitted).

In this case, Plaintiff properly filed her lawsuit within ninety days of receiving notice of

her right to sue. (See Doc. 1-4.) At issue is whether she exhausted her administrative remedies for

each of her Title VII claims by first filing a timely charge with the EEOC reporting those claims.

1. Prescription

The first issue is whether some of Plaintiff’s Title VII claims are time-barred. As stated

above, under Title VII, a plaintiff must file a timely EEOC charge describing the unlawful

employment action complained about before filing suit. 42 U.S.C. § 2000e–5(e)(1). The time-

period applicable to determining whether the plaintiff filed a “timely” EEOC charge differs

depending on the state in which it is filed. “Generally, Title VII's enforcement provisions require

that an EEOC charge must be filed within 180 days after the alleged unlawful employment practice

has occurred.” Fontenot v. Bd. of Supervisors of Louisiana State Univ., No. 20-8, 2022 WL

2709006, at *7 (M.D. La. July 12, 2022) (Dick, C.J.) (citing 42 U.S.C. § 2000e–5(e)(1)).

“However, in a ‘deferral state,’ such as Louisiana, a claimant has an extended, 300-day period to

file an EEOC charge.” Id. (citing Conner v. Louisiana Dep't of Health & Hosps., 247 F. App'x

480, 481 (5th Cir. 2007)). For purposes of filing a timely charge under Title VII, “[a] discrete

retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’ ” Nat'l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 110 (2002).

This timing requirement is imposed on all Title VII claims regardless of “whether they are

based on allegations of disparate treatment, disparate impact, hostile work environment, or

retaliation[.]” Clark v. City of Alexandria, No. 20-01581, 2022 WL 822912, at *8 (W.D. La. Feb.

23, 2022), report and recommendation adopted, 2022 WL 816793 (W.D. La. Mar. 16, 2022).

“Filing a timely charge is a prerequisite to having an actionable claim.” Santos v. Baton Rouge

Water Works Co., No. 18-1098, 2021 WL 1227875, at *11 (M.D. La. Mar. 31, 2021) (deGravelles,

J.) (quoting Stewart v. Mississippi Transp. Com'n, 586 F.3d 321, 328 (5th Cir. 2009)).

Consequently, “any claims arising more than 300 days prior to the filing of an EEOC charge are

time-barred.” Id. (citing 42 U.S.C. § 2000e–5(e)(1)).

In this case, Plaintiff filed her initial charge of discrimination with the Louisiana

Commission on Human Rights (“LCHR”) and the EEOC on December 29, 2015, (Doc. 1-2), and

subsequently filed an amended charge on June 21, 2016, (Doc. 1-3).4 Defendant correctly points

out that 300 days prior to the initial charge’s filing date is March 4, 2015, and 300 days prior to

the amended charge’s filing date is August 26, 2015; however, Defendant fails to definitively

identify the filing date from which it contends the prescriptive period should date back. (Doc. 58-

2 at 4.) Instead, “using March 4, 2015 as the furthest possible cutoff for prescription purposes,”

Defendant maintains that—at the very least—no alleged discriminatory or retaliatory acts

occurring before that date can serve as the basis for Plaintiff’s Title VII claims because they are

time-barred. (Id.)

Defendant is correct in that any discrimination or retaliation claims that arose more than

300 days before the filing of Plaintiff’s EEOC charge are time-barred. Under Title VII, the

employee must file an EEOC charge describing the actions made unlawful under Title VII within

300 days “after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e–5(e)(1).

Plaintiff’s original EEOC charge, which was filed on December 29, 2015, described actions that

occurred as early as 2012. Because 300 days before that filing is March 4, 2015, the only unlawful

employment practices described therein that are actionable are those that occurred on or after

March 4, 2015.

4 Hereafter, the Court will refer to these charges as the “EEOC charges,” but acknowledges that in Louisiana, such

charges are filed with both the LCHR and the EEOC.

Because the amended EEOC charge was filed on June 21, 2016, its cut-off date for

actionable claims is later: only unlawful employment practices described therein that occurred on

or after August 26, 2015 are actionable. However, this prescriptive period does not apply to

allegations already set forth in Plaintiff’s original EEOC charge, as Plaintiff has already satisfied

administrative exhaustion for those claims. In other words, to the extent the amended charge

mirrors the original charge’s allegations, the amended charge is immaterial to the prescription

issue; only conduct occurring on or after March 4, 2015 is actionable. Here, with the exception of

the two additional allegations discussed below, the amended EEOC charge does not set forth any

new claims under Title VII. Instead, it mostly elaborates on the allegations already contained in

the original charge. (See, e.g., Doc. 1-2 at 4, 10; cf Doc. 1-3 at 4, 10.) Therefore, with respect to

the actions described in the amended EEOC charge that were already reported in Plaintiff’s original

EEOC charge, no detailed analysis is necessary. Only conduct occurring on or after March 4, 2015

is actionable, and claims for conduct occurring before that date are time-barred.

The only additional, substantive allegations set forth in the amended charge concern

conduct that occurred in 2016, after the original charge was filed. (See Doc. 1-3 at 26 (arguing

Defendant discriminated and retaliated against her by filling the “original DHH-OBH PM4

Position . . . in or about February 2016”); see also id. at 27 (arguing same and explaining that she

applied for this position countless times, including for the last time on January 25, 2016).) As

stated above, Plaintiff filed her amended EEOC charge on June 21, 2016. Thus, because the

amended charge describing these instances was filed within 300 days after their occurrence, these

additional allegations of LDH conduct are actionable. As a result, Plaintiff’s Title VII claims

relying on these specific actions are deemed timely.

In sum, any alleged act of discrimination or retaliation occurring before March 4, 2015 is

time-barred under Title VII. Therefore, the Court finds that summary judgment is warranted on

these claims. Additionally, because no further action by Plaintiff could cure this defect, the Court

will dismiss with prejudice all Title VII claims based on actions occurring before that date. See,

e.g., Santos, 2021 WL 1227875, at *14, *22 (finding that the plaintiff’s Title VII and LEDL

discrimination claims were time-barred and thus dismissing them with prejudice).

2. Failure to File a Subsequent EEOC Charge

Next at issue is whether Plaintiff properly exhausted her claims for discrimination and

retaliation under Title VII by filing an EEOC charge on those claims. Defendant argues that LDH

actions occurring after the date Plaintiff’s amended EEOC charge was filed are similarly not

actionable under Title VII because (a) filing an EEOC charge is a prerequisite to having an

actionable claim, and (b) no EEOC charge based on those acts was ever filed. (Doc. 58-2 at 4–5.)

In short, the Court agrees with Defendant’s position as far as it relates to Plaintiff’s Title VII

discrimination claims. However, for reasons discussed in more detail below, some of Plaintiff’s

retaliation claims for which she did not file an EEOC charge are nevertheless actionable. Whether

she properly exhausted her discrimination claims will be taken up first.

For administrative exhaustion, it is not only important that the EEOC charge is filed in a

timely manner; it is equally important that the charge covers the claims now forming the basis of

the plaintiff’s lawsuit, as “a primary purpose of Title VII is to trigger the investigatory and

conciliatory procedures of the EEOC, in attempt to achieve non-judicial resolution of employment

discrimination claims.” Pacheco v. Mineta, 448 F.3d 783, 788–89 (5th Cir. 2006) (citing Sanchez

v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). “Because a plaintiff's Title VII claim

must be administratively exhausted, a subsequent suit must be limited to the claims made in the

employee's initial EEOC charge or any type of discrimination ‘like or related to the charge's

allegations, limited only by the scope of the EEOC investigation that could reasonably be expected

to grow out of the initial charges of discrimination.’ ” Bracken v. Welborn, No. 20-72, 2021 WL

237693, at *4 (M.D. La. Jan. 25, 2021) (Dick, C.J.) (citations omitted). The Fifth Circuit “interprets

what is properly embraced in review of a Title–VII claim somewhat broadly, not solely by the

scope of the administrative charge itself, but by the scope of the EEOC investigation which ‘can

reasonably be expected to grow out of the charge of discrimination.’ ” Pacheco, 448 F.3d at 789

(quoting Sanchez, 431 F.2d at 466); see McClain v. Lufkin Indus., Inc., 519 F.3d 264, 274–75 (5th

Cir. 2008) (explaining that “the ‘scope’ of the judicial complaint is limited to the ‘scope’ of the

EEOC investigation which can reasonably be expected to grow out of the charge of

discrimination.”).

Here, Plaintiff’s amended EEOC charge includes allegations of conduct constituting

discrimination and retaliation that occurred as late as June 20, 2016—the day before she filed her

amended charge. (See Doc. 1-3 at 1.) Even when construing her EEOC complaint liberally, as the

Fifth Circuit requires, the scope of the EEOC investigation on both of her charges could not have

included events occurring after those charges were filed. The Fifth Circuit dealt with this same

issue in Sapp v. Potter, 413 F. App'x 750 (5th Cir. 2011). There, the plaintiff filed a total of four

EEOC charges, but she filed her third and fourth EEOC charges after bringing her lawsuit in the

district court. Id. at 751. The district court dismissed the plaintiff’s claims that were based on the

facts alleged in her third and fourth EEOC complaints on the grounds that she had not exhausted

her administrative remedies at the time of filing her lawsuit. Id. at 751–52. In affirming that

dismissal, the Fifth Circuit explained:

A necessary prerequisite to exhausting administrative remedies is having begun the

administrative process. [Pacheco, 448 F.3d at 788.] Because Sapp had not even

filed the third and fourth EEO complaints at the time that she filed the complaint in

the district court, Sapp's case cannot be permitted to proceed.

. . .

As the district court emphasized, EEO1 and EEO2 relate solely to Sapp's contention

that the Postal Service failed to accommodate the restrictions imposed by her

alleged medical disability. EEO3 and EEO4 relate to her being wrongfully

terminated as a result of her medical disability. Merely because both sets of facts

involve the same alleged motive does not mean that the third and fourth EEO

complaints were within the scope of the first two investigations. The first two

investigations were already concluded at the time Sapp's employment was

terminated. A person cannot reasonably expect a concluded investigation to include

an event that has not yet occurred.

Id. at 752.

On this issue, Sapp v. Potter, 413 F. App'x 750 (5th Cir. 2011) is directly on point.

Plaintiff’s Title VII claims for discriminatory conduct occurring after the filing of the amended

EEOC charge likewise do not satisfy the exhaustion of administrative remedies requirement

because a person cannot reasonably expect that the scope of the EEOC investigation would include

events that had not yet occurred. Here, Plaintiff’s allegations include conduct occurring after June

20, 2016, but no EEOC charge reporting that later conduct was ever filed. Put another way,

Plaintiff’s two EEOC charges did not—and could not—include claims for conduct occurring after

that date, and “[a]ny claims not described in the EEOC charge are not properly before the Court.”

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). Therefore, as to the claims that Defendant violated Title

VII based on conduct occurring after June 20, 2016, Plaintiff has not exhausted her administrative

remedies. Accordingly, the Court cannot consider those alleged instances for purposes of

Plaintiff’s discrimination claims under Title VII.

Additionally, although neither party raised the issue, the Court is cognizant that the

continuing violations doctrine, if applicable here, would save Plaintiff’s untimely discrimination

claims. In sum, no exquisite analysis is necessary on this point; the relevant case law shows that

the continuing violations doctrine is inapplicable here because Plaintiff’s claims are based on

discrete acts only. “The Supreme Court has defined ‘discrete acts’ as easily identifiable incidents,

including termination, failure to promote, denial of transfer, and refusal to hire.” Tillman v. S.

Wood Preserving of Hattiesburg, Inc., 377 F. App'x 346, 349 (5th Cir. 2010) (citations omitted).

Plaintiff’s discrimination claims only concern the “easily identifiable incidents” described above

and, as such, are not part of any continuing violation. Id. Thus, for the reasons stated above, the

Court finds that summary judgment is warranted on Plaintiff’s Title VII discrimination claims

arising after June 20, 2016 for failure to exhaust administrative remedies. As a result, the only

actionable Title VII claims for discrimination in this case are those that arose between March 4,

2015, and June 20, 2016. As a result, the Court will only consider actions occurring during that

time period as a proper basis for those claims; all discrimination claims arising outside of that time

period are barred.5

Again, like Plaintiff’s discrimination claims, her retaliation claims under Title VII based

on acts that occurred before March 4, 2015 are time-barred.6 However, with respect to certain

claims of retaliation arising after an EEOC charge has been filed, an employee need not file a

5 Though by slightly different reasoning, Defendant comes to the same conclusion as the Court: all claims arising

before March 4, 2015 and after June 20, 2016 are time-barred. (Doc. 58-2 at 4.) Plaintiff did not respond to this

argument or address the issue of exhaustion of administrative remedies in any manner. Consequently, in addition to

the above reasons, dismissal of these claims is warranted here because any contrary argument by Plaintiff on this issue

is waived. See JMCB, LLC v. Bd. of Com. & Indus., 336 F. Supp. 3d 620, 634 (M.D. La. 2018) (deGravelles, J.)

(finding that claims could be deemed waived for failure to timely oppose); see also JTB Tools & Oilfield Servs., L.L.C.

v. United States, 831 F.3d 597, 601 (5th Cir. 2016) (stating that, “[t]o avoid waiver, a party must identify relevant

legal standards and ‘any relevant Fifth Circuit cases’ ” and holding that, because appellant “fail[ed] to do either with

regard to its underlying claims, ... those claims [were] inadequately briefed and therefore waived.”) (citations omitted);

United States v. Reagan, 596 F.3d 251, 254–55 (5th Cir. 2010) (defendant's failure to offer any “arguments or

explanation ... is a failure to brief and constitutes waiver.”).

6 The Court need not discuss the continuing violations doctrine here, as “[t]he Fifth Circuit has held that the continuing

violations doctrine does not apply to claims of retaliation because ‘retaliation is, by definition, a discrete act, not a

pattern of behavior.’ ” Santos v. Baton Rouge Water Works Co., No. 18-1098, 2021 WL 1227875, at *14 (M.D. La.

Mar. 31, 2021) (deGravelles, J.) (citing Hamic v. Harris Cnty., W.C. & I.D. No. 36, 184 F. App'x 442, 447 (5th Cir.

2006)).

subsequent EEOC charge reporting that retaliation to have an actionable claim. In Gupta v. East

Texas State Univ., 654 F.2d 411 (5th Cir. 1981), a professor filed an EEOC charge for

discrimination and then filed a second charge claiming his employer retaliated against him for

filing the first charge; thereafter, he filed suit. Id. at 412–413. Subsequently, he was informed that

his teaching contract would not be renewed, so he claimed in his lawsuit an additional instance of

retaliation based on the termination. Id. at 413. He did not, however, file another EEOC charge

reporting the additional instance of retaliation. Id. In addressing his failure to file another EEOC

charge, the Fifth Circuit concluded:

[W]e hold that it is unnecessary for a plaintiff to exhaust administrative remedies

prior to urging a retaliation claim growing out of an earlier charge; the district court

has ancillary jurisdiction to hear such a claim when it grows out of an administrative

charge that is properly before the court.

There are strong practical reasons and policy justifications for this conclusion. It is

the nature of retaliation claims that they arise after the filing of the EEOC charge.

Requiring prior resort to the EEOC would mean that two charges would have to be

filed in a retaliation case[,] a double filing that would serve no purpose except to

create additional procedural technicalities when a single filing would comply with

the intent of Title VII.

Id. at 414 (citations omitted).

The applicability of the Gupta exception, however, is limited in two ways. The first is

obvious from Gupta itself: the retaliation claim at issue must “grow[] out of an earlier charge” that

was previously filed with the EEOC. Id. Hence, it is clear that “Gupta and its rationale are not

applicable when . . . the alleged retaliation occurs before the filing of the EEOC charge.” Eberle

v. Gonzales, 240 F. App’x 622, 628 (5th Cir. 2007).

The second constraint on Gupta’s applicability is that the exception extends to unexhausted

claims for retaliation only, not unexhausted claims involving both retaliation and discrimination.

For example, in Simmons-Myers v. Caesars Ent. Corp., 515 F. App'x 269 (5th Cir. 2013), a female

employee filed a charge with the EEOC claiming her employer discriminated against her based on

her sex in a variety of ways, such as taking male employees to dinner and imposing different sets

of sales goals for them. Id. at 271. After filing this charge, she was terminated, but she never filed

another EEOC charge related to her termination before filing suit. Id. at 272. As for the plaintiff’s

Title VII claims for gender discrimination and retaliation that were based on her termination, the

court found she failed to exhaust those claims because she never filed an EEOC charge on them

and, as such, dismissed them without prejudice. Id. at 273.

Importantly, the Fifth Circuit declined to apply the Gupta exception to save her retaliation

claim even though it ostensibly grew out of the facts alleged in her earlier EEOC charge:

But this court has not applied the Gupta exception to claims in which both

retaliation and discrimination are alleged. See Gupta, 654 F.2d at 414 (creating

exception for a claim involving only retaliation “growing out of an earlier charge,”

not a retaliation and discrimination claim simultaneously alleged); see also Scott v.

Univ. of Miss., 148 F.3d 493, 514 (5th Cir. 1998) (holding that Gupta “is limited to

retaliation claims due to the special nature of such claims”), abrogated on other

grounds by Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d

522 (2000); Sapp v. Potter, 413 [F. App’x] 750, 752–53 (5th Cir. 2011) (“Because

the Gupta exception is premised on avoiding procedural technicalities, it has only

been applied to retaliation claims alone [and not] claims in which both retaliation

and discrimination are alleged.”). Otherwise, [the plaintiff] would be required to

return to the EEOC and exhaust her administrative remedies with respect to her

discrimination claim, while proceeding with litigation on her retaliation claim.

Permitting simultaneous proceedings such as these for the same inciting event

would “thwart the administrative process and peremptorily substitute litigation for

conciliation.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008); see

also Sapp, 413 [F. App’x] at 753.

Id. at 273–74.

The Simmons-Myers court noted that “Gupta may no longer be applicable” following the

Supreme Court's decision in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) and that

“[o]ur sister circuits appear to be split on this issue.” Id. at 273 n.1 (gathering authorities and

discussing various circuits’ treatment of whether Morgan abolished a Gupta-like exception)

(citations omitted). Ultimately, the Fifth Circuit declined to definitively resolve the question of

whether Gupta has survived Morgan, id., but has since continued to recognize it as valid. See

Phillips v. Caris Life Scis., Inc., 715 F. App'x 365, 370–71 (5th Cir. 2017) (finding the Gupta

exception did not apply because “this court has repeatedly held that the Gupta exception only

applies when the new claim is one of retaliation; Gupta does not apply to cases in which both

retaliation and discrimination claims are alleged”) (citations omitted).

As this Court has previously explained, although “Gupta has been called into question, it

remains good law. It has never been overruled and has, as demonstrated above, been applied by

several circuit courts.” Mitchell v. Univ. of Louisiana Sys., 154 F. Supp. 3d 364, 403 (M.D. La.

2015) (deGravelles, J.). Thus, “until the Supreme Court or Fifth Circuit reassess the holding in

Gupta, this Court is bound to follow its holding.” Id. (quoting Finnie v. Lee Cty., Miss., 907 F.

Supp. 2d 750, 786–88 (N.D. Miss. 2012)); see also Williams v. McAleenan, No. 19-12841, 2021

WL 6496851, at *3 (E.D. La. Jan. 12, 2021) (explaining that the Fifth Circuit does “not appl[y]

the Gupta exception to claims in which both retaliation and discrimination are alleged—not even

when such claims are brought in the alternative”) (citing Simmons-Myers, 515 F. App’x at 273–

74; Gupta, 654 F.2d at 414; Sapp, 413 F. App’x at 752–53).

With these principles in mind, the Court will now assess whether Plaintiff’s Title VII

claims for retaliation are actionable. In her opposition, Plaintiff claims that Defendant retaliated

against her by: (1) transferring her to the PI section, where she worked under a male who created

a hostile work environment; (2) denying her over 100 promotions, even though she was often the

most qualified candidate; (3) “ultimately filling the PM4 Position with two other males . . . who

were way less qualified than the female applicants[;]” (4) “trying to make her discriminate against

other women by hiring a young, unqualified male;” and (5) “[u]ltimately, forc[ing] [her] out of

LDH entirely.” (Doc. 68 at 15.) The Court will examine each of these alleged instances of

retaliation in turn.

As for Plaintiff’s transfer to the PI section, her affidavit shows that she was moved to this

section of LDH in 2014. (Pl. Aff., ¶ 50, Doc. 68-2.) Again, she filed her first EEOC charge on

December 29, 2015. As explained above, any claims arising before March 4, 2015—that is, more

than 300 days before the filing of that charge—are time-barred. Thus, Plaintiff has no actionable

retaliation claim as to her transfer to the PI section.

As for Plaintiff’s claim that Defendant retaliated against her by denying her over 100

promotions, the same conclusion is warranted with respect to the denials that occurred before

March 4, 2015. Those claims are time-barred. As for the denials that occurred after June 20, 2016,

no EEOC charge was filed on those claims. Hence, the retaliation claims based on those denials

are unexhausted and thus must meet the Gupta exception to be actionable. Plaintiff claims that

LDH “retaliated against [her] and/or continued to discriminate against [her] by denying [her]

dozens of promotions.” (Pl. Aff., ¶ 104, Doc. 68-2.) The Fifth Circuit “has repeatedly held that the

Gupta exception only applies when the new claim is one of retaliation[.]” Phillips, 715 F. App'x

at 370. That court “has not applied the Gupta exception to claims in which both retaliation and

discrimination are alleged—not even when such claims are brought in the alternative.” Williams,

2021 WL 6496851, at *3 (citing Simmons-Myers, 515 F. App’x at 273–74; Gupta, 654 F.2d at

414; Sapp, 413 F. App’x at 752–53).

Plaintiff uses the denials of promotions as a basis for both her discrimination and retaliation

claims under Title VII. Because Plaintiff’s discrimination claims for denials occurring after June

20, 2016 have not been exhausted, the Gupta exception cannot allow her retaliation claims based

on those same occurrences to survive. To find otherwise would thwart the administrative process

by allowing Plaintiff to proceed with litigation on her retaliation claims while also requiring her to

return to the EEOC and report those same instances for discrimination. Simmons-Myers, 515 F.

App’x at 274. Therefore, the Court finds that Plaintiff’s retaliation claims based on denials

occurring after June 20, 2016 are not actionable for failure to exhaust administrative remedies.

Consequently, of the over 100 promotions for which Plaintiff applied and was denied, only those

occurring between March 4, 2015 and June 20, 2016 can form the basis for her Title VII retaliation

claim. These remaining claims will be analyzed further below.

Plaintiff next claims that LDH retaliated against her by filling the PM4 Position with two

males who were less qualified than her. (Doc. 68 at 15.) She does not specifically pinpoint who

these individuals are, but indicates in other parts of her opposition and evidence that the PM4

Position she originally applied for in 2012 was filled by Michael Carrone, and later, by Bryan

Hardy. (Doc. 68 at 7, 13; Pl. Aff., ¶ 103, Doc. 68-2.) Carrone was hired into the PM4 Position in

March of 2016. (Doc. 68 at 13; Pl. Aff., ¶ 103, Doc. 68-2.) Thereafter, Plaintiff filed her amended

EEOC charge referencing this incident. (Doc. 1-3 at 23.) Thus, Plaintiff has exhausted her

retaliation claim based on LDH filling the PM4 Position with Carrone, and the Court will examine

the substance of that claim further below.

However, while Plaintiff indicates that Bryan Hardy was hired into the PM4 Position at

some point after Carrone, neither her evidence nor briefs show when exactly Bryan Hardy filled

this position. (See Doc. 68 at 7.) Moreover, her amended EEOC charge makes no mention of Bryan

Hardy. (See Doc. 1-3.) Thus, Plaintiff has not met her burden of showing she exhausted her

retaliation claim as to Bryan Hardy. As such, dismissal of this claim is warranted.7

7 The Court notes that if Bryan Hardy was hired into the PM4 Position after June 20, 2016—which is very likely

considering the fact that the position was filled by his predecessor, Carrone, in March of 2016—Plaintiff’s retaliation

claim as to Bryan Hardy would still be dismissed because (a) she failed to file an EEOC charge reporting that

As for Plaintiff’s claim that Defendant retaliated against her by “trying to make her

discriminate against other women by hiring a young, unqualified male,” (Doc. 68 at 15), her

affidavit indicates that this instance occurred in April of 2015, (Pl. Aff., ¶ 66, Doc. 68-2). Because

this alleged retaliation occurred within the 300-day period before Plaintiff filed her initial EEOC

charge, and that charge includes facts pertaining to this allegation, (see Doc. 1-2 at 16), the Court

finds that her retaliation claim relating to this conduct is actionable. Accordingly, this claim is

properly before the Court and will be examined further below.

Finally, in arguing Defendant retaliated against her in violation of Title VII, Plaintiff claims

that Defendant “forced [her] out of LDH entirely.” (Doc. 68 at 15.) More specifically, Plaintiff

alleges that LDH’s treatment of her throughout the years became so unfavorable that she decided

she “had no choice” other than to “leave the area of healthcare” on November 20, 2017. (Id. at 10.)

For this reason, she argues that “LDH constructively discharged [her] on November 20, 2017.”

(Id. (citing Pl. Aff., ¶ 115, Doc. 68-2).) This alleged instance of retaliation occurred after both of

Plaintiff’s EEOC charges were filed, and Plaintiff did not file a subsequent EEOC charge reporting

this claim. Hence, Plaintiff failed to exhaust this claim and, as such, she can only seek relief for it

if the exception to the exhaustion requirement applies.

As explained above, under the Gupta exception, a plaintiff need not “exhaust

administrative remedies prior to urging a retaliation claim growing out of an earlier charge.”

Gupta, 654 F.2d at 414. Here, Plaintiff claims that she felt she had no choice but to leave LDH

because the “years of . . . blackballing, discrimination, and retaliation” became “too much” for her

to handle, (Doc. 68 at 10), and her EEOC charges detail acts she alleges constitute discrimination

and retaliation over a span of several years. For these reasons, the Court finds that Plaintiff’s

retaliation, and (b) the Gupta exception cannot apply, as Plaintiff claims that hiring Bryan Hardy into this position

constituted both retaliation and discrimination. (See Doc. 68 at 7.)

retaliation claim based on the alleged constructive discharge “grow[s] out of” her earlier EEOC

charges. Gupta, 654 F.2d at 414. Additionally, she does not appear to claim the constructive

discharge constitutes both discrimination and retaliation in violation of Title VII. Therefore,

Plaintiff is entitled to the Gupta exception on this claim.

For the foregoing reasons, summary judgment is granted on all of Plaintiff’s Title VII

discrimination claims arising after June 20, 2016 based on failure to exhaust. In addition, summary

judgment is granted on those Title VII retaliation claims arising after June 20, 2016 that the Court

found—as detailed above—were not actionable based on failure to exhaust. Because non-

exhaustion due to failing to file an EEOC charge is not a jurisdictional defect, Fort Bend Cnty.,

Texas v. Davis, 139 S. Ct. 1843, 1846 (2019), “the appropriate disposition of Title VII claims that

have not been exhausted is dismissal without prejudice.” Dowdell v. Culpepper & Assocs. Sec.

Servs., Inc., No. CV 19-11410, 2020 WL 5095274, at *2 n.26 (E.D. La. Aug. 28, 2020) (dismissing

the unexhausted Title VII claims without prejudice, allowing the plaintiff to later return to court

after she exhausted her administrative remedies, but emphasizing that the court “ha[d] not [yet]

made a finding as to whether any claim filed after exhaustion would be timely.”) Accordingly,

with respect to all Title VII claims arising after June 20, 2016 that the Court finds not actionable

for failure to exhaust, those claims will be dismissed without prejudice.

B. Title VII Claims for Discrimination

1. General Law

Title VII prohibits discrimination by employers “against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual's race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a). “Intentional discrimination under

Title VII can be proven by either direct or circumstantial evidence.” Santos v. Baton Rouge Water

Works Co., No. 18-1098, 2021 WL 1227875, at *15 (M.D. La. Mar. 31, 2021) (deGravelles, J.)

(citing Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003); Russell v. McKinney Hosp. Venture,

235 F.3d 219, 222 (5th Cir. 2000)). “For evidence to be ‘direct,’ it must, if credible, prove the fact

in question without inference or presumption.” Santos, 2021 WL 1227875, at *15 (citing Fabela

v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003) (citations omitted)). In situations

like the case at bar, where a plaintiff has not presented any direct evidence of discrimination, “the

Court shall employ the familiar burden-shifting framework established by the United States

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.

Ed. 2d 668 (1973).” Id.; see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1984)

(stating, “the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence

of discrimination”).

The burden-shifting framework requires Plaintiff to first establish, by a preponderance of

the evidence, a prima facie case of discrimination. Santos, 2021 WL 1227875, at *15 (citing

McDonnell Douglas, 411 U.S. at 801–03). “A prima facie case is established once the plaintiff has

proven that [s]he: (1) is a member of a protected class; (2) was qualified for [the] position [she

sought]; (3) was subjected to an adverse employment action; and (4) was replaced by someone

outside the protected class; or in the case of disparate treatment, show that others similarly situated

were treated more favorably.” Id.; see also Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th

Cir. 2005). If established, the prima facie case “raises a presumption of discrimination,” and the

burden then shifts to the defendant to rebut that presumption “by articulating a legitimate,

nondiscriminatory reason for its actions.” Santos, 2021 WL 1227875, at *15 (citing McDonnell

Douglas, 411 U.S. at 802) (citations omitted). “The burden on the employer at this stage is one of

production, not persuasion; it can involve no credibility assessment.” Alvarado v. Tex. Rangers,

492 F.3d 605, 611 (5th Cir. 2007) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 142 (2000) (cleaned up)).

Once the defendant satisfies their burden by proffering a non-discriminatory reason for the

adverse employment action, “the prima facie case is dissolved, and the burden shifts back to the

plaintiff” to create a genuine issue of material fact that either: (1) the defendant’s “proffered reason

is not true[,] but is instead a pretext for discrimination;” or (2) the defendant’s “reason, while true,

is not the only reason for its conduct, and another ‘motivating factor’ is the plaintiff's protected

characteristic.” Id. (citing Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)); see

also Santos, 2021 WL 1227875, at *15 (describing the plaintiff’s options as either proceeding

under the “pretext alternative” or the “mixed-motives alternative”) (citations omitted). Plaintiff

has not specified whether she proceeds under a pretext theory or a mixed-motives theory in this

case. Regardless, however, throughout the shifting back and forth of “intermediate evidentiary

burdens” under this framework, “[t]he ultimate burden of persuading the trier of fact that the

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

Reeves, 530 U.S. at 143 (quoting Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981)).

2. Parties’ Arguments

a. Defendant’s Original Memorandum (Doc. 58-2)

Defendant points out that Plaintiff has the burden of proving a prima facie case and argues

that Plaintiff has not and cannot meet that burden. Then, Defendant relies on the Guttzeit affidavit,

(Ex. D-1, Doc. 58-3), to summarize what positions Plaintiff applied for and what individuals filled

those positions based on gender. (See Doc. 58-2 at 7–8.) According to Defendant, between March

4, 2015 and June 21, 2016, Plaintiff applied to LDH for seventeen Program Manager positions,

only nine of which were subsequently filled. (Id. at 7.) Of the nine people LDH filled those

positions with, five were female and four were male. (Id.) Defendant continues in the same fashion

with respect to the six executive or administrative positions it contends Plaintiff applied to at LDH

during this time period. (Id. at 8.) According to Defendant, it filled five of those positions, and

four of the individuals who filled those positions were female while only one was male. (Id.)

Based on this data, Defendant concludes, “it is clear that Plaintiff will not be able to create

a genuine issue of material fact to show that LDH failed to transfer her to a new position or promote

her on the basis of gender.” (Id.) Defendant does not mention why it failed to hire or promote

Plaintiff to any of the positions, but only provides these statistics from the Guttzeit affidavit.

b. Plaintiff’s Opposition (Doc. 68)

Plaintiff does not cite any law concerning her Title VII claims for discrimination based on

gender. Instead, her opposition repeats the testimony set forth in her affidavit and avers that, based

on those facts, summary judgment is not appropriate. (See Doc. 68 at 12–14.) As discussed further

below, she specifically claims that LDH discriminated against her through its treatment of another

male employee, Joshua Hardy, and later by promoting Michael Carrone and then Bryan Hardy into

the PM4 Position. (Id.)

c. Defendant’s Reply (Doc. 69)

In response, Defendant argues that Plaintiff failed to present admissible evidence showing

LDH failed to transfer her or promote her for gender-related discriminatory purposes. (Doc. 69 at

3.) According to Defendant, the evidence it presented shows the opposite. The evidence Defendant

points to need not be discussed here, as it is largely a repeat of the same data summarized above.

3. Analysis

To overcome a motion for summary judgment on her remaining discrimination claims,

Plaintiff first must establish a prima facie case of discrimination. Santos, 2021 WL 1227875, at

*15 (citing McDonnell Douglas, 411 U.S. at 801–03). To do so, she must prove that: (1) she is a

member of a protected class; (2) she was qualified for the position(s) sought; (3) she was subjected

to an adverse employment action by LDH; and (4) she “was replaced by someone outside the

protected class; or in the case of disparate treatment, . . . that others similarly situated were treated

more favorably.” Id.; see also Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005).

Although Plaintiff claims generally throughout her opposition and affidavit that she was

discriminated against in various ways, only a handful of those instances can constitute “adverse

employment actions” for purposes of her discrimination claims. An adverse employment action is

“a judicially-coined term referring to an employment decision that affects the terms and conditions

of employment.” Thompson v. City of Waco, Texas, 764 F.3d 500, 503 (5th Cir. 2014) (citations

omitted). The Fifth Circuit has “held that adverse employment actions consist of ‘ultimate

employment decisions’ such as hiring, firing, demoting, promoting, granting leave, and

compensating.” Id. (citations omitted). “[A]n employment action that ‘does not affect job duties,

compensation, or benefits’ is not an adverse employment action.” Id. (quoting Pegram v.

Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004)).

The only conduct that is actionable for purposes of Plaintiff’s discrimination claim and

constitutes an “ultimate employment decision” includes her claims that she was discriminated

against by being denied promotions to about thirty job positions within LDH during the actionable

time period. Even then, however, Plaintiff fails to provide essentially any information on any

position she applied for except for the PM4 positions.8 Consequently, only the denial of promotion

to the PM4 positions will be analyzed.

8 Plaintiff distinguishes between “the PM4 Position,” which is the original position she began applying for in 2012,

and other PM4 positions she applied for in other sections. This distinction is irrelevant because, as explained below,

she fails to identify appropriate comparators for any of the referenced positions. Still, for the sake of clarity, the Court

notes the distinction and refers to them collectively as “PM4 positions” when not discussing a particular one.

4. The PM4 Positions and Appropriate Comparators

First, it is clear that Plaintiff, as a female, is a member of a protected class under Title VII.

As for the second requirement, it appears that Plaintiff was highly qualified for the PM4 position

based on the statements in her affidavit. (Pl. Aff., ¶¶ 6, 10, 12, 14, Doc. 68-2).) In addition, she

was subjected to an adverse employment action because she was denied promotion to PM4

positions on multiple occasions. Primarily at issue here is whether Plaintiff has satisfied the fourth

element required to establish her prima facie case. The Court finds she has not.

More specifically, Plaintiff has failed to satisfy the fourth prong because she “has failed to

identify a proper comparator—someone ‘similarly situated’ who was ‘treated more favorably.’ ”

Santos, 2021 WL 1227875, at *17 (quoting Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th

Cir. 2005)). “Courts within the Fifth Circuit define ‘similarly situated’ narrowly.” Id. (citing

Horton v. G4S Secure Solutions (USA), Inc., No. 16-544, 2018 WL 1997535 at *5 (M.D. La Apr.

27, 2018) (citing Brown v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F. Supp. 2d 581, 593 (S.D.

Tex. 2012); Lopez v. Kempthorne, 684 F. Supp. 2d 827, 856–57 (S.D. Tex. 2010))).

In order to show that an employee is similarly situated to another, the Fifth Circuit requires

the employee proffering another as a comparator to “demonstrate that the employment actions at

issue were taken ‘under nearly identical circumstances.’ ” Lee v. Kansas City S. Ry. Co., 574 F.3d

253, 260 (5th Cir. 2009) (citation omitted). The Fifth Circuit has explained the applicable standard

as follows:

The employment actions being compared will be deemed to have been taken under

nearly identical circumstances when the employees being compared held the same

job or responsibilities, shared the same supervisor or had their employment status

determined by the same person, and have essentially comparable violation histories.

And, critically, the plaintiff's conduct that drew the adverse employment decision

must have been “nearly identical” to that of the proffered comparator who allegedly

drew dissimilar employment decisions. If the “difference between the plaintiff's

conduct and that of those alleged to be similarly situated accounts for the difference

in treatment received from the employer,” the employees are not similarly situated

for the purposes of an employment discrimination analysis.

Id. (citations omitted) (emphasis in original).

In sum, the Court finds that Plaintiff has failed to establish her prima facie case because

she has not shown that any similarly situated male employees at LDH were treated more favorably

than her. Plaintiff’s summary judgment evidence mentions four fellow male employees who were

promoted to a PM4 position over her: (1) Michael Carrone, (2) Bryan Hardy, (3) Joseph Foxhood,

and (4) Tyler Carruth.9 However, as explained below, Plaintiff has not provided enough

information about these employees for the Court to decipher whether they are similarly situated

under the Fifth Circuit’s “nearly identical” test.

The adverse employment action Plaintiff claims she was subjected to is that LDH denied

her a promotion to the PM4 Position and other PM4 positions on various occasions. The dissimilar

employment actions being compared are the promotions of the above-mentioned male employees

into those positions. Because neither party has offered any purported reason or explanation for

why Plaintiff was denied the promotions, the Court cannot ascertain what “conduct” by Plaintiff

allegedly “drew the adverse employment decision[.]” Lee, 574 F.3d at 260. Nevertheless, the Court

finds that Plaintiff has still failed to present sufficient evidence for the Court to determine whether

the treatment of the proffered comparators was taken under “nearly identical circumstances.” Id.

As explained above, “[t]he employment actions being compared will be deemed to have

been taken under nearly identical circumstances when the employees being compared held the

same job or responsibilities, shared the same supervisor or had their employment status determined

9 At one point, in her opposition, Plaintiff states that Joshua Hardy was given the PM4 Position over her. (Doc. 68 at

12.) However, her own evidence contradicts this statement, as does another portion of her opposition. (See id. at 13

(arguing “LDH may claim that since Joshua Hardy did not get the PM4 Position, there was no discrimination. This is

laughable because LDH continued to discriminate . . . by eventually filling it . . .” with other males).)

by the same person, and have essentially comparable violation histories.” Id. (citations omitted).

In the case at hand, the only information Plaintiff provides on the individuals she suggests are

comparators is as follows.

In March of 2016, Michael Carrone was promoted to the PM4 Position that was denied to

Plaintiff on ten separate occasions. (Pl. Aff., ¶ 103, Doc. 68-2; see also Doc. 68 at 13.) Plaintiff

claims that she was more highly qualified for the position than Carrone, as he only had a bachelor’s

degree in English and “little health care or technical experience.” (Pl. Aff., ¶ 103, Doc. 68-2.) After

Carrone’s departure, Plaintiff avers that another fellow male employee, Bryan Hardy, was

promoted to the PM4 Position and suggests that he currently holds that position: “To this day . . .

the PM4 Position to which [Plaintiff] was denied promotion . . . is filled by a young male less

qualified than her (Bryan Hardy) . . .” (Doc. 68 at 7 (citing Pl. Aff., ¶ 40, Doc. 68-2); see also Doc.

68 at 13.)

Plaintiff also claims that Joseph Foxhood, a male, was promoted over her to “DHH OPH”

Program Manager 4—another PM4 position—on June 20, 2016. (Pl. Aff., ¶ 107, Doc. 68-2 (listed

as position number 52 in the list of the 100 total positions for which Plaintiff applied).) According

to Plaintiff, Foxhood was chosen for promotion over her even though she was more highly

educated than Foxhood, (id. ¶ 103 (Plaintiff held a master’s degree while Foxhood had no graduate

degree), and had substantially more professional experience than him, (id. (stating that La. Civil

Service defined professional experience as post-baccalaureate). At the time of his promotion,

Foxhood was not an employee of LDH, but rather was a contractor for LDH, and he had

professional level experience of only three years. (Id.) The minimal qualifications for the position

required five years of professional experience; Plaintiff had twenty-five years of this experience,

while Foxhood did not even meet the minimum required as he only had three years of experience.

(Id.)

Lastly, Plaintiff alleges that Tyler Carruth, a young male, was promoted to a PM4 position

“multiple times in multiple sections,” including in the Office of Public Health, Medicaid, Office

of the Secretary, over older and more qualified applicants, including Plaintiff. (Pl. Aff., ¶ 103, Doc.

68-2.) Further, Plaintiff contends that “Carruth received multiple promotions and raises throughout

the previous five years in LDH totaling 18% at a time when state worker salaries were supposedly

frozen due to budget cuts.” (Id.) In this same period of time, Plaintiff claims she received no

promotions and only one department-ordered 4% salary increase. (Id.)

Plaintiff’s Title VII discrimination claim as it relates to Bryan Hardy fails for two reasons.

Aside from Plaintiff’s conclusory allegation that Bryan Hardy was less qualified, Plaintiff provides

no other information about this employee or his promotion to the PM4 Position. Thus, Plaintiff

has not presented enough evidence for the Court to determine whether Bryan Hardy is a similarly

situated comparator. Moreover, assuming arguendo that Plaintiff had provided enough

information for the Court to deem Bryan Hardy an appropriate comparator, Plaintiff does not

indicate when he was placed into the position, but merely claims that “[t]o this day” the position

is filled by Bryan Hardy. (Doc. 68 at 7 (citing Pl. Aff., ¶ 40, Doc. 68-2).) As previously explained,

Plaintiff’s Title VII discrimination claims for conduct occurring after June 20, 2016 have not been

properly exhausted and thus are not actionable. Based on the scant information provided regarding

Bryan Hardy, the Court cannot determine whether Plaintiff’s discrimination claim as to him has

been exhausted.10 Therefore, Plaintiff has not met her burden of establishing a prima facie case on

her Title VII discrimination claim as to Bryan Hardy.

As for the other proffered comparators—Carrone, Foxhood, and Carruth—aside from

Plaintiff’s contentions that she was more qualified for the positions than them, she provides

virtually no facts addressing whether these proffered comparators, at the time of their promotions,

held the same job or responsibilities she held at the time she was denied the promotion. She does

state that Foxhood was a contractor for LDH at the time he was hired into the position, but that

fact weighs against him being deemed similarly situated because Plaintiff never held a similar

position. Likewise, Plaintiff does not present any evidence indicating they shared the same

supervisor, nor does she discuss whether they have “comparable violation histories” because she

does not provide any details about their histories before their promotions aside from her contention

that they were less qualified.

Under the burden-shifting framework, Defendant is not required to provide a legitimate,

non-discriminatory reason for the adverse employment action until after Plaintiff has met her initial

burden of establishing a prima facie case. For the foregoing reasons, Plaintiff failed to offer enough

evidentiary support to create a material fact issue on whether the individuals mentioned above are

similarly situated comparators. Therefore, the Court finds that Plaintiff failed to carry her initial

burden here. Accordingly, with respect to Plaintiff’s Title VII discrimination claim based on

gender, summary judgment is warranted.

C. Title VII Claims for Retaliation

1. General Law

10 As noted above, however, it appears unlikely that Bryan Hardy was hired into the PM4 Position before June 20,

2016, because (a) Bryan Hardy filled the position at some point after Carrone filled the position, and (b) Carrone was

hired into the position in March of 2016. In other words, based on this information, Plaintiff most likely has not

exhausted her discrimination claim as to Bryan Hardy, but the Court does not make that finding today.

“Title VII prohibits employers from retaliating against employees who oppose an

employment practice made unlawful by Title VII.” Allen v. Envirogreen Landscape Pros., Inc.,

721 F. App'x 322, 325 (5th Cir. 2017), as revised (Dec. 7, 2017) (citing EEOC v. Rite Way Serv.,

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

made unlawful “under Title VII include ‘fail[ing] or refus[ing] to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's race, color, religion,

sex, or national origin.’ ” Id. (quoting 42 U.S.C. § 2000e–2(a)(1)). “To establish a prima facie case

of retaliation under Title VII, ‘a plaintiff must show that (1) she participated in an activity protected

under the statute; (2) her employer took an adverse employment action against her; and (3) a causal

connection exists between the protected activity and the adverse action.’ ” Id. (quoting Feist v. La.

Dep't of Justice, Office of the Attorney Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy v.

City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007))).

“An employee has engaged in an activity protected under Title VII if he (1) ‘has made a

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

hearing’ (the ‘participation clause’) under Title VII, or (2) ‘opposed any practice made an unlawful

employment practice by this subchapter’ (the ‘opposition clause’).” Carpenter v. Haaland, No.

19-13208, 2021 WL 1198261, at *4 (E.D. La. Mar. 30, 2021) (quoting 42 U.S.C. § 2000e–3(a))

(emphasis in original). If an employee proceeds under the opposition clause, she is required to

“demonstrate that she had at least a ‘reasonable belief’ that the practices she opposed were

unlawful.” Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (quoting Payne v. McLemore's

Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981)); see also E.E.O.C. v. Rite Way

Serv., Inc., 819 F.3d 235, 237 (5th Cir. 2016) (“It has long been the law in this and other circuits

that a plaintiff contending that she was retaliated against for proactively reporting employment

discrimination need not show that the discrimination rose to the level of a Title VII violation, but

must at least show a reasonable belief that it did.”). Additionally, in claims of protected opposition,

“an employee must at least have referred to conduct that could plausibly be considered

discriminatory in intent or effect, thereby alerting the employer of its discriminatory practices.”

Allen, 721 F. App'x at 326 (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 349 (5th

Cir. 2007)). As such, “[a] vague complaint or general allegation of unfair treatment, without any

reference to an unlawful employment practice under Title VII, does not constitute protected

activity.” Id. (citing Davis v. Dall. Indep. Sch. Dist., 448 F. App’x 485, 493 (5th Cir. 2011)

(unpublished) (per curiam) (finding that a statement complaining about a “hostile work

environment” did not constitute protected activity under Title VII because it “lacked a racial or

gender basis”)) (other citations omitted).

In contrast, no similar showing is required for claims under the participation clause. The

opposition clause essentially protects opposition by self-help, whereas the participation clause

protects activities that occur in conjunction with or after the filing of an EEOC charge. See Byers

v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000) (explaining that the “participation

clause” was “irrelevant [in that case] because [the employee] did not file a charge with the EEOC

until after the alleged retaliatory discharge took place.”); see also 1 B. Lindemann & P. Grossman,

EMPLOYMENT DISCRIMINATION LAW 15–9 (5th ed. 2012) (“Because § 704(a) protects

participation in only ‘an investigation, proceeding or hearing under Title VII,’ an employee's

statements during an employer's internal investigation that is conducted independently of any

EEOC charge generally have been held not protected by the participation clause.”).

Concerning the second element of the employee’s prima facie case, an “adverse

employment action” is one that “a reasonable employee” would find to be “materially adverse,

which in this context means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th

Cir. 2012) (citation omitted); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006) (emphasizing that the “standard for judging harm must be objective[,]” which is why the

employment action is assessed from the perspective of a “reasonable employee”). Lastly, and as

stated above, establishing a prima facie case of retaliation under Title VII requires the employee

to show a “causal connection” between their protected activities and the adverse actions taken by

their employer. Allen, 721 F. App'x at 325 (citations omitted); Garcia v. Pro. Cont. Servs., Inc.,

938 F.3d 236, 241–43 (5th Cir. 2019); see also Hernandez, 670 F.3d at 657 (stating that the third

element of the plaintiff’s prima facie case of retaliation requires the plaintiff to show “there was a

causal link between the protected activity and the adverse employment action.”) (citation omitted).

Once the plaintiff successfully presents a prima facie case of retaliation, “the burden shifts

to the employer to state a legitimate, non-retaliatory reason for its decision.” Allen, 721 F. App'x

at 325 (quoting LeMaire v. Louisiana, 480 F.3d 383, 388–89 (5th Cir. 2007) (citation omitted)). If

the “employer does so, the burden shifts back to the employee to demonstrate that the employer's

reason is pretext for retaliation.” Id. “In order to avoid summary judgment, the plaintiff must show

‘a conflict in substantial evidence’ on the question of whether the employer would not have taken

the action ‘but for’ the protected activity.” Id. (quoting Feist, 730 F.3d at 454 (quoting Long v.

Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996))).

2. Parties’ Arguments

a. Defendant’s Original Memorandum (Doc. 58-2)

Defendant argues that Plaintiff has not and cannot meet her burden of demonstrating by

competent summary judgment evidence that there is an issue of material fact on all three elements

of her Title VII retaliation claims. (Doc. 58-2 at 10.) Defendant’s entire argument for why Plaintiff

has not met that burden is as follows: “LDH points out herein in accordance with Rule 56 the

absence of evidence by Plaintiff that she was engaged in an activity protected by Title VII or, if

she was, that there is any causal connection between that protected activity and LDH’s decision to

not transfer Plaintiff to another position or promote her.” (Id. at 9–10.) Essentially, Defendant

avers that Plaintiff has not established the first and third elements required for her to show a prima

facie case of retaliation. Lastly, Defendant does not provide a reason for any of its decisions or

actions that Plaintiff alleges were retaliatory.

b. Plaintiff’s Opposition (Doc. 68)

In response, Plaintiff argues that her evidence shows LDH retaliated against her based upon

her gender and that this retaliation began after she complained about LDH discriminating against

her “in favor of a way less qualified and unworthy [male] candidate” for the PM4 Position. (Doc.

68 at 14–15.) Specifically, according to Plaintiff, the acts constituting the ensuing harassment and

retaliation include: (1) LDH transferring her to the PI section, where she worked under a male who

created a hostile work environment; (2) LDH denying her over 100 promotions, even though she

was often the most qualified candidate; (3) LDH “trying to make her discriminate against other

women by hiring a young, unqualified male[;]” and (4) LDH “ultimately filling the PM4 Position

with two other males . . . who were way less qualified than the female applicants.” (Id. at 15.) She

also claims that LDH ultimately “forced [her] out of LDH entirely.” (Id.) Finally, Plaintiff points

to the affidavits of two other former LDH employees as supporting these facts, (see Doc. 68-4;

Doc. 68-3), and argues that Defendant has failed to introduce any evidence on her retaliation claim.

c. Defendant’s Reply (Doc. 69)

In its reply brief, Defendant largely repeats the same argument: Plaintiff must establish a

prima facie case for her Title VII retaliation claim by proving the three elements set forth above,

and she has not done so. (Doc. 69 at 4.) However, Defendant additionally argues that, as the

moving party, Defendant can meet its burden under Rule 56 of showing there is no genuine issue

for trial by pointing out “the absence of evidence supporting [Plaintiff’s] case.” (Id. at 2 (quoting

Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995)).) According to Defendant,

once the moving party has met this burden, the evidence the nonmoving party comes forward with

“must be such that if introduced at trial it would suffice.” (Id.) Finally, Defendant contends that

Plaintiff has not satisfied this standard as she failed to present “admissible evidence” with her

opposition that would establish any one of the three elements of her prima facie case. (Id. at 4.)

3. Analysis

Although some of the alleged actions here occurred after Plaintiff filed her initial EEOC

charge, she does not indicate whether she contends that these instances of alleged retaliation were

taken because she opposed discrimination by complaining or because she filed a charge of

discrimination with the EEOC. Additionally, Plaintiff does not meaningfully respond to

Defendant’s argument that she failed to present evidence showing she was engaged in an activity

protected by Title VII. Rather, in her opposition, she merely argues that “[t]his retaliation began

when she complained of being passed over for the PM4 Position in favor of a way less qualified

and unworthy male candidate in his 30s.” (Doc. 68 at 14–15.) Thus, the only protected activity

Plaintiff seems to suggest she engaged in, and which she argues LDH retaliated against her for, is

her complaining about the PM4 Position in 2013. This instance of her complaining about and

opposing alleged discrimination properly falls under the opposition clause. As such, for purposes

of this analysis, the Court will only assess whether Plaintiff’s 2013 complaint constitutes

“protected activity” under the first element.

Based on the evidence presented, the Court finds that Plaintiff engaged in a protected

activity when she complained to the OBH Human Resources Director at that time, Ruby Triggs.

In February of 2013, after LDH closed the second posting for the PM4 Position, Plaintiff claims

that Triggs told her “that the decision had already been made the year before and that Joshua Hardy

would be placed into the PM4 Position as he had been promised[,] even though [Plaintiff] was the

highest scored qualified applicant.” (Pl. Aff., ¶ 26, Doc. 68-2.) According to Plaintiff, she

responded by telling Triggs that (1) she was more qualified for the position than Hardy in various

ways; and (2) “[t]he only reason Joshua Hardy was being promoted to the PM4 Position was

because he was a young, white male and many such employees were being promoted and treated

favorably, especially in technical fields throughout LDH, while older female employees were

being punished and/or denied opportunities for promotion.” (Id. ¶ 27.) According to Plaintiff,

“Triggs was very understanding and agreed that what was happening with Joshua Hardy was

wrong.” (Id. ¶ 28.)

To satisfy the “opposition clause,” Plaintiff need not prove the employment action she

complained about was unlawful under Title VII, but only that she had an objectively reasonable

belief that said action violated Title VII. Byers, 209 F.3d at 428. Additionally, in making this

complaint, she “must at least have referred to conduct that could plausibly be considered

discriminatory in intent or effect, thereby alerting the employer of its discriminatory practices.”

Allen, 721 F. App'x at 326 (citing Turner, 476 F.3d at 349). Based on the evidence above, the

Court finds that, at the time Plaintiff complained to Triggs, it was objectively reasonable for her

to conclude Defendant was violating Title VII by holding the PM4 Position open “as promised”

for only Joshua Hardy, even though Joshua Hardy was less qualified for the position than Plaintiff.

Moreover, in complaining to Triggs about this alleged discrimination, Plaintiff specifically

mentioned gender as the basis for the claimed discrimination. Therefore, the Court finds that

Plaintiff has established the first element of her prima facie case by showing she was engaged in

an activity protected under Title VII.

However, regardless of whether Plaintiff has shown she was subjected to an adverse

employment action, her retaliation claims fail for lack of causation. As previously explained, many

of Plaintiff’s claims for retaliation under Title VII are either time-barred or not actionable for

failure to exhaust her administrative remedies. Thus, of the various LDH actions Plaintiff argues

constituted retaliation, the only ones properly before the Court include: (1) Defendant denying her

promotions between March 4, 2015 and June 20, 2016; (2) Defendant filling the PM4 Position

with Michael Carrone; (3) Defendant “trying to make her discriminate against other women by

hiring a young, unqualified male[;]” and (4) Defendant “[u]ltimately forc[ing] [her] out of LDH

entirely.” (Doc. 68 at 15.)

Plaintiff has failed to establish the requisite casual connection between any of these actions

and her complaint to Triggs in February of 2013 because all of these actions occurred over two

years after Plaintiff complained. Again, to establish a prima facie case of retaliation under Title

VII, the third element requires Plaintiff to show “a casual link between the protected activity and

the adverse employment action.” Hernandez, 670 F.3d at 657 (citation omitted). Concerning the

causation element, the Fifth Circuit has recognized:

“Close timing between an employee's protected activity and an adverse action

against him may provide the ‘causal connection’ required to make out a prima facie

case of retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.

1997). “However, we have made clear that ‘the mere fact that some adverse action

is taken after an employee engages in some protected activity will not always be

enough for a prima facie case.’ ” Roberson v. Alltel Info. Servs., 373 F.3d 647, 655

(5th Cir. 2004) (quoting Swanson, 110 F.3d at 1188 n. 3). Indeed, “[t]he cases that

accept mere temporal proximity between an employer’s knowledge of protected

activity and an adverse employment action as sufficient evidence of causality to

establish a prima facie case uniformly hold that the temporal proximity must be

‘very close.’ ” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct.

1508, 149 L.Ed.2d 509 (2001). This court has observed that “a time lapse of up to

four months has been found sufficient to satisfy the causal connection for summary

judgment purposes,” Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001)

(emphasis added) (internal quotation marks omitted), whereas a time lapse of five

months does not, without additional evidence of retaliation, establish causation. See

Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002).

Robinson v. Our Lady of the Lake Reg'l Med. Ctr., Inc., 535 F. App'x 348, 353 (5th Cir. 2013) (per

curiam) (finding that plaintiff failed to meet prima facie burden of establishing causation when

there were five and six month gaps and no additional evidence of causation).

Here, with respect to the promotions that Plaintiff was denied, the earliest denials the Court

can consider are those that occurred on or after March 4, 2015. As for the other instances of alleged

retaliation, Plaintiff’s evidence shows that: (a) Carrone was hired into the PM4 Position in March

of 2016, (Doc. 68 at 13; Pl. Aff., ¶ 103, Doc. 68-2); (b) Defendant tried to force Plaintiff to

discriminate against other women by hiring an unqualified male in April of 2015, (Pl. Aff., ¶¶ 66–

67, Doc. 68-2); and (c) that Plaintiff left LDH—an occurrence she argues amounted to a

constructive discharge—on November 20, 2017, (Doc. 68 at 10 (citing Pl. Aff., ¶ 115, Doc. 68-

2)). Again, the “protected activity” Plaintiff engaged in—complaining to Triggs—occurred in

February of 2013. Hence, all the adverse employment actions Plaintiff maintains were taken in

retaliation for her 2013 complaint occurred more than two years after she complained.

As this Court has explained, such a large gap in time—without other evidence of

retaliation—is insufficient to establish causation. See Santhuff v. United Parcel Serv., Inc., No. 17-

1404, 2019 WL 4545610, at *24 (M.D. La. Sept. 19, 2019) (deGravelles, J.) (finding that the “two-

year period” between the plaintiff’s complaints and his subsequent discipline was “well beyond

the four-month period usually found to be sufficient to establish causation”); see also Hypolite v.

City of Houston, Tex., 493 F. App'x 597, 607 (5th Cir. 2012) (finding that plaintiffs failed to meet

their prima facie burden of showing retaliation when there was a nine-month gap between

discipline and their discrimination suit and when there was no other evidence of retaliation);

Robinson, 535 F. App'x at 353–54 (reaching the same result with five and six month gaps and no

additional evidence of retaliation). Therefore, the Court finds that Plaintiff has failed to satisfy her

prima facie burden of establishing causation. For this reason, the Motion is granted, and Plaintiff’s

Title VII retaliation claims against Defendant are dismissed.

D. Equal Pay Act Claims

1. General Law

The Equal Pay Act (“EPA”) prohibits employers from discriminating “between employees

on the basis of sex . . . for equal work on jobs the performance of which requires equal skill, effort,

and responsibility, and which are performed under similar working conditions.” 29 U.S.C. §

206(d)(1). To establish a prima facie case of wage discrimination under the EPA, Plaintiff must

show that: (1) her employer is subject to the EPA; (2) she performed work in a position requiring

“equal skill, effort, and responsibility under similar working conditions[;]” and (3) she was paid

less than a male employee in the position “providing the basis of comparison.” Chance v. Rice

Univ., 984 F.2d 151, 153 (5th Cir. 1993) (citation omitted). Plaintiff “need not show that her job

duties were identical to those of higher paid male employees” to make out a prima facie case;

rather, she only needs to demonstrate that the “skill, effort and responsibility” required in the

performance of the compared jobs are “substantially equal.” Horton v. G4S Secure Sols. (USA),

Inc., No. 16-544, 2018 WL 1997535, at *7 (M.D. La. Apr. 27, 2018) (Dick, C.J.) (citing Wallace

v. Bd. of Sup'rs for the Univ. of Louisiana Sys., No. 14-657, 2016 WL 7116107, at *5 (M.D. La.

Dec. 6, 2016) (Dick, C.J.) (quoting Jones v. Flagship Int'l, 793 F.2d 714, 722–23 (5th Cir. 1986))

(citation omitted)).

Once Plaintiff establishes her prima facie case, “the burden shifts to the employer to

demonstrate that the disparity in pay is based on one of the EPA's four exceptions: ‘(i) a seniority

system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of

production; or (iv) a differential based on any other factor other than sex.’ ” Durham v. AMIKids,

Inc., No. 17-343, 2019 WL 12290115, at *5 (M.D. La. Jan. 11, 2019) (deGravelles, J.) (quoting

Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). If the employer satisfies its burden

by establishing one of the EPA’s enumerated exceptions, then “the burden shifts back to the

plaintiff to show that the proffered explanation is a pretext for wage discrimination.” Id. (citing

Strong v. Grambling State Univ., 159 F. Supp. 3d 697, 711 (W.D. La. 2015)).

2. Parties’ Arguments

a. Defendant’s Original Memorandum (Doc. 58-2)

Defendant does not reach the issue of whether any of the EPA’s four exceptions apply

because Defendant asserts that Plaintiff has not and cannot meet her initial burden of establishing

a prima facie case under the EPA. (Doc. 58-2 at 11–12.) First, Defendant cites one of the Ruling

and Orders previously issued in this case, whereby the Court dismissed Plaintiff’s claims for any

EPA violations occurring before December 22, 2014 as being untimely. (Id. at 10 (citing Doc.

43).) Defendant also submits that, beginning on December 22, 2014, Plaintiff held a position at

LDH as a Medicaid PM2, and she remained in that position until she was transferred to a position

with the Louisiana Division of Administration on November 20, 2017. (Def. SMF, ¶ 2, Doc. 58-1

(citing Guttzeit Aff., ¶ 4, Doc. 58-3).)

Defendant then presents statistical evidence showing that the “average gross bi-weekly

salary” that LDH paid its female PM2s was higher than the average gross bi-weekly salary it paid

its male PM2s at the end of 2014, 2015, and 2016. (Doc. 58-2 at 11 (citations omitted).) According

to Defendant’s evidence, the only year LDH’s female PM2s were paid less on average than their

male counterparts was in 2017. (Id. (citing Guttzeit Aff., ¶¶ 19–22, Doc. 58-3).) However,

Defendant contends that throughout this period—from 2014 through the end of 2017—Plaintiff’s

gross bi-weekly salary as a PM2 at all times exceeded the average salaries of both male and female

PM2s. (Id. (citing Guttzeit Aff., ¶¶ 19–22, Doc. 58-3); id. at 10 (citing Guttzeit Aff., ¶ 18, Doc.

58-3).) Based on this evidence, Defendant maintains that Plaintiff is unable to create a genuine

issue of material fact that LDH unfairly compensated her as a PM2 in comparison to other male

PM2s. (Id. at 11–12.)

Additionally, the testimony from Guttzeit’s affidavit indicates that, as classified employees

within the meaning and structure of the Rules of the Louisiana Civil Service Commissions

(“LCSC”), Plaintiff’s and other LDH employees’ salaries are “not at the discretion of LDH but are

instead set in accordance with pay ranges established by the LCSC for the grade to which the

employee’s position is allocated and the permitted adjustments thereto as set forth in the Rules of

[the] LCSC.” (Guttzeit Aff., ¶ 17, Doc. 58-3.) Hence, according to Defendant, gender is not a

factor ever considered by LDH in matters relating to employment compensation. (Id.)

b. Plaintiff’s Opposition (Doc. 68)

In opposition to the Motion, Plaintiff first maintains that Defendant’s argument is fatally

flawed because “it includes males throughout LDH rather than those who were similarly situated

to [Plaintiff] in the technical sections only at LDH.” (Doc. 68 at 15.) In addition, Plaintiff attacks

Defendant’s contention that LDH salaries could never be discriminatory because LDH pays its

employees pursuant to the LCSC Rules by arguing that LDH routinely “went around” the LCSC

Rules. (Id. at 15–16.) Lastly, Plaintiff avers that several male LDH employees were treated

differently from her regarding compensation. (Id. at 15–18.) The male employees Plaintiff claims

were compensated more favorably will be discussed in more detail below.

c. Defendant’s Reply (Doc. 69)

Defendant responds by asserting that Plaintiff failed to present with her opposition

“admissible evidence that LDH paid Plaintiff less than males in the same or similar positions

requiring equal skill, effort, and responsibility under similar working conditions.” (Doc. 69 at 5.)

In contrast, according to Defendant, the evidence and testimony provided by Defendant—that is,

the data demonstrating Plaintiff’s gross bi-weekly salary exceeded the same average salary of male

PM2s in 2014, 2015, 2016, and 2017—shows that LDH did not pay Plaintiff less than similarly

situated males. (Id.)

3. Analysis

Again, to establish a prima facie case of wage discrimination under the EPA, Plaintiff here

must show that: (1) her employer is subject to the EPA; (2) she performed work in a position

requiring “equal skill, effort, and responsibility under similar working conditions;” and (3) she was

paid less than a male employee in the position “providing the basis of comparison.” Chance, 984

F.2d at 153 (citation omitted). To make out a prima facie case, Plaintiff “need not show that her

job duties were identical to those of higher paid male employees[;]” instead, she is only required

to show that the “skill, effort and responsibility” required in the performance of the compared jobs

are “substantially equal.” Horton, 2018 WL 1997535, at *7 (citations omitted).

Here, with respect to most of the male employees Plaintiff asserts LDH treated more

favorably than her in terms of compensation (that is, Joshua Hardy, Jode Burkett, Tyler Carruth,

Ryan Bilbo, Michael Carrone, Timothy White, and Lucas Tramontozzi), the Court found that

Plaintiff’s statement of fact on this issue should be stricken for lack of foundation. (See Doc. 73 at

20–21.) However, even if the Court were to consider that statement of fact for purposes of the

Motion, Plaintiff presents an undeveloped argument. She asserts generally that these individuals

all received “multiple promotions and/or double digit pay raises during a time that [Plaintiff]

received no promotions and only one agency-wide ordered 4% raise available to everyone.” (Doc.

68 at 18; Pl. Aff., ¶ 114, Doc. 68-2.) Yet, Plaintiff never argues, nor does her evidence purport to

show, that any of these male employees were actually paid more than her. Thus, with respect to

these individuals that Plaintiffs seems to offer as comparators, Plaintiff has failed to show that

there are genuine issues of fact regarding the third element of her prima facie case.

However, Plaintiff does argue that she was paid less than two male LDH employees, Jay

Besse and George Bucher. First, Plaintiff contends that Besse, a “direct equal as a PM2[,]” is one

“of many more examples of a direct correlation of how [she] was paid less than men, even though

she was more educated and had more experience than” him. (Id.) According to Plaintiff:

Besse was hired at the same level as [her] when she was hired (PM2) even though

he only had a Bachelor’s degree and only five years of work experience while

[Plaintiff] had a Bachelor’s degree, a Master’s degree and certification as a SAS

Advanced Programmer with 23 years of experience when [she] started working at

LDH. Yet Besse received a 42% increase in pay from his previous job and started

at $85,000 annual salary; [in contrast, Plaintiff] received a 23% increase in pay

from [her] previous job and started at $80,000 annual salary.

(Pl. Aff., ¶ 103, Doc. 68-2 at 26.)

The Court finds this insufficient to establish Plaintiff’s prima facie case for two reasons.

First, Plaintiff seems to compare Besse’s salary with the salary she received when she started as a

PM2. Plaintiff’s evidence shows that, on March 1, 2012, she moved from her position in LDH’s

Medicaid division to become a PM2 in the OBH division. (Id. ¶ 7.) According to the evidence

presented by Defendant, as of December 22, 2014, Plaintiff held a position at LDH as a Medicaid

PM2, and she remained in that position until she was transferred to a position with the Louisiana

Division of Administration on November 20, 2017. (Def. SMF, ¶ 2, Doc. 58-1 (citing Guttzeit Aff.,

¶ 4, Doc. 58-3).) Although Plaintiff attempts to dispute this fact, neither her response nor the

portions of her affidavit cited as supporting that denial actually contradict its truth. (See Pl. OSMF,

¶ 2, Doc. 68-1 (citing Pl. Aff., ¶¶ 7, 106, 108, Doc. 68-2).) Thus, based on this evidence, it appears

Plaintiff was a PM2 in some fashion for more than two years before December 22, 2014.11

For this reason, it is unclear to the Court whether Plaintiff is using as a comparison her

salary from before or after December 22, 2014. And, per this Court’s prior Ruling and Order, (Doc.

43), only compensation occurring before December 22, 2014 can form the basis of Plaintiff’s EPA

claim. Moreover, this confusion is further compounded by the fact that Plaintiff does not specify

when Besse was hired as a PM2, thereby providing no way for the Court to determine whether he

was paid an allegedly higher salary before or after December 22, 2014. In sum, with respect to

Plaintiff’s claim that LDH violated the EPA by paying her less than Besse, Plaintiff has failed to

satisfy her prima facie case.

Finally, Plaintiff claims that George Bucher was paid more than her by LDH in 2014, even

though he was hired to work for her and thus subordinate to her. She submits: “As Bucher's

supervisor, [Plaintiff] was making $17,406.00 less than him in 2014 (by 22%), even though she

had more education and relevant experience than he did.” (Doc. 68 at 18; Pl. Aff., ¶ 114, Doc. 68-

2.) As to Bucher, the testimony from Plaintiff’s affidavit creates a genuine issue of material fact

11 In another portion of her affidavit, however, Plaintiff states that she was required to move to the Office of the

Secretary Program Integrity (“PI”) Section in 2014. (Pl. Aff., ¶ 50, Doc. 68-2.) Assuming arguendo that this means

Plaintiff was not a PM2 from 2014 through 2017, she still fails to make her prima facie case, specifically the second

element, because (1) she provides no argument as to how this position is similar to Besse’s position as a PM2, and (2)

she still has provided no evidence indicating when Besse was allegedly paid more than her.

that (a) Plaintiff’s position required “skill, effort, and responsibility” that was at least similar to

her subordinate, Bucher, under similar working conditions, and (b) that Plaintiff was paid less than

Bucher in that position. However, again, the Court cannot glean from the evidence presented

whether this alleged disparity in compensation occurred before or after December 22, 2014. Put

another way, Plaintiff has failed to present enough summary judgment evidence to show that her

EPA claim as to Bucher is timely. Resultantly, the Court finds that Plaintiff has failed to meet her

prima facie burden on this claim.

In conclusion, because Plaintiff is unable to satisfy her prima facie case under the EPA,

Defendant is entitled to summary judgment and Plaintiff’s EPA claims will be dismissed.

VI. Conclusion

Accordingly,

IT IS ORDERED that the Motion for Summary Judgment Pursuant to Fed. R. Civ. Proc.

56 on Plaintiff’s Remaining Claims (Doc. 58) filed by Defendant the Louisiana Department of

Health is GRANTED.

(a) Plaintiff’s Title VII discrimination claims based on acts occurring before March 4, 2015

are DISMISSED WITH PREJUDICE for being time-barred; her discrimination claims based on

acts occurring after June 20, 2016 are DISMISSED WITHOUT PREJUDICE for failure to

exhaust; and her discrimination claims based on acts occurring between March 4, 2015 and June

20, 2016 are DISMISSED WITH PREJUDICE.

(b) Plaintiff’s Title VII retaliation claims based on acts occurring before March 4, 2015 are

DISMISSED WITH PREJUDICE for being time-barred; her retaliation claims on which

summary judgment is granted for failure to exhaust, as identified above, are DISMISSED

WITHOUT PREJUDICE; and all of her remaining retaliation claims are DISMISSED WITH

PREJUDICE.

(c) Plaintiff’s Equal Pay Act claims are DISMISSED WITH PREJUDICE.

Signed in Baton Rouge, Louisiana, on March 10, 2023.

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA