Lewis v. Louisiana State University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SHARON LEWIS, CIVIL ACTION

Plaintiff

VERSUS NO. 21-198-SM-RLB

BOARD OF SUPERVISORS OF LOUISIANA

STATE UNIVERSITY AND AGRICULTURAL

AND MECHANICAL COLLEGE,

Defendant

ORDER AND REASONS

Before the Court is a Motion for Summary Judgment 1 filed by Defendant, Board

of Supervisors of Louisiana State University and Agricultural and Mechanical College (the

“Board”). The Board’s motion for summary judgment seeks judgment in its favor on “each

and every remaining claim of Plaintiff.”2

In its memorandum in support of the motion for summary judgment, the Board

asserts that the “only claims that remain” are claims for “Title IX retaliation after April 8,

2020,”3 “Title VII retaliation,”4 and Title VII “sex and race discrimination.”5 Plaintiff has

brought a Title VII hostile work environment claim.6 Because a hostile work environment

is discriminatory conduct against a protected class, the Court assumes the Board included

this claim in its reference to Plaintiff’s “sex and race discrimination” claim.7 In any event,

the Board’s main argument is that the Fifth Circuit does not recognize a claim for

1 R. Doc. 424.

2 R. Doc. 424 at p. 1.

3 R. Doc. 424-14 at p. 1. This time period is prescribed by a prior Order and Reasons. See R. Doc. 107 at pp.

12–18.

4 Id.

5 Id.

6 See R. Doc. 219 at pp. 67–68.

7 R. Doc. 424-14 at p. 1.

retaliatory hostile work environment,8 rather than any argument with respect to

Plaintiff’s actual hostile work environment claim. The Court will assume the Board also is

seeking summary judgment on Plaintiff’s hostile work environment claim.

The motion for summary judgment was filed October 11, 2023.9 Plaintiff filed an

opposition10 on October 18, 2023 and filed a supplemental response11 to the Board’s

Statement of Undisputed Material Facts12 on October 24, 2023. The Board filed its reply

on November 7, 2023.13 For the reasons that follow, the motion is GRANTED IN PART

and DENIED IN PART.

LEGAL STANDARD

Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.”14

“An issue is material if its resolution could affect the outcome of the action.”15

When assessing whether a material factual dispute exists, the Court considers “all of the

evidence in the record but refrain[s] from making credibility determinations or weighing

the evidence.”16 All reasonable inferences are drawn in favor of the nonmoving party.17

There is no genuine issue of material fact if, even viewing the evidence in the light most

8 See Heath v. Bd. of Sup. for South. Univ. & Agri. and Mech. Coll., 850 F.3d 731, 741 n.5 (5th Cir. 2017)

(“We have not recognized a retaliatory hostile work environment cause of action.”)

9 Id.

10 R. Doc. 432.

11 R. Doc. 436.

12 R. Doc. 424-15.

13 R. Doc. 444.

14 Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

15 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

16 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).

17 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving

party, thus entitling the moving party to judgment as a matter of law.18

If the dispositive issue is one for which the moving party will bear the burden of

persuasion at trial, the moving party “must come forward with evidence which would

‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”19 If the

moving party fails to carry this burden, the motion must be denied. If the moving party

successfully carries this burden, the burden of production then shifts to the nonmoving

party to direct the Court’s attention to something in the pleadings or other evidence in the

record setting forth specific facts sufficient to establish that a genuine issue of material

fact does indeed exist.20

On the other hand, if the dispositive issue is one on which the nonmoving party

will bear the burden of persuasion at trial, the moving party may satisfy its burden of

production by either (1) submitting affirmative evidence that negates an essential element

of the nonmovant’s claim, or (2) demonstrating there is no evidence in the record to

establish an essential element of the nonmovant’s claim.21 When proceeding under the

first option, if the nonmoving party cannot muster sufficient evidence to dispute the

movant’s contention that there are no disputed facts, a trial would be useless, and the

18 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).

19 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.

v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).

20 Celotex, 477 U.S. at 322–24.

21 Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)

(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at 322–24, and

requiring the Movers to submit affirmative evidence to negate an essential element of the nonmovant’s

claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential

element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in Celotex, and requiring

the movant to make an affirmative presentation to negate the nonmovant’s claims on summary judgment);

10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. and Pro. §2727.1 (2016) (“Although

the Court issued a five-to-four decision, the majority and dissent both agreed as to how the summary-

judgment burden of proof operates; they disagreed as to how the standard was applied to the facts of the

case.” (internal citations omitted)).

moving party is entitled to summary judgment as a matter of law.22 When, however, the

movant is proceeding under the second option and is seeking summary judgment on the

ground that the nonmovant has no evidence to establish an essential element of the claim,

the nonmoving party may defeat a motion for summary judgment by “calling the Court’s

attention to supporting evidence already in the record that was overlooked or ignored by

the moving party.”23 Under either scenario, the burden then shifts back to the movant to

demonstrate the inadequacy of the evidence relied upon by the nonmovant.24 If the

movant meets this burden, “the burden of production shifts [back again] to the

nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving

party’s papers, (2) produce additional evidence showing the existence of a genuine issue

for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further

discovery is necessary as provided in Rule 56(f).”25 “Summary judgment should be

granted if the nonmoving party fails to respond in one or more of these ways, or if, after

the nonmoving party responds, the court determines that the moving party has met its

ultimate burden of persuading the court that there is no genuine issue of material fact for

trial.”26

Still, “unsubstantiated assertions are not competent summary judgment evidence.

The party opposing summary judgment is required to identify specific evidence in the

record and to articulate the precise manner in which that evidence supports the claim.

22 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1980); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249–50 (1986).

23 Celotex, 477 U.S. at 332–33.

24 Id.

25 Celotex, 477 U.S. at 332–33, 333 n.3.

26 Id.; see also First Nat’l Bank of Ariz., 391 U.S. at 289.

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

of evidence to support a party’s opposition to summary judgment.’”27

LAW AND ANALYSIS

I. The court has jurisdiction over Plaintiff’s Title VII retaliatory

discharge claim because Plaintiff exhausted her administrative

remedies.

Plaintiff’s Second Amended Complaint includes a claim for retaliation under Title

VII.28 The claim adopts the previously plead factual allegations, which included

allegations of retaliatory discharge.29 The Board argues the Court lacks jurisdiction as

Plaintiff’s retaliatory discharge claim is barred because Plaintiff’s failed to exhaust her

administrative remedies related to this claim.30

While it is true Plaintiff’s EEOC charge was filed prior to her termination,31

Plaintiff’s claim of retaliatory discharge “grows out of” the allegations of sexual and racial

discrimination and retaliation detailed in the EEOC charge.32 Plaintiff’s EEOC charge

includes descriptions of incidents of discrimination and retaliation from 2009-2021.33 It

states, “I engaged in protected activity by reporting sexist and racist behavior among

athletic officials and, from 2009 to present, I have been subjected to retaliation and a

hostile work environment.”34 Plaintiff argues her eventual termination in 2022 was based

on similar retaliatory motives.35

27 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d

909, 915–16 & n.7 (5th Cir. 1992)).

28 R. Doc. 219 at pp. 68-69.

29 Id. at p. 68.

30 R. Doc. 424-14 at p. 15.

31 Plaintiff filed her EEOC charge on April 15, 2021 (R. Doc. 219-8). She was terminated on January 5, 2022

(R. Doc. 219 at p. 18).

32 R. Doc. 219-8 at p. 2 (Plaintiff alleging a “continuing pattern of hostile work environment, gender

discrimination and race discrimination”).

33 R. Doc. 219-8 at p. 3.

34 Id.

35 R. Doc. 432 at 21.

Because Plaintiff’s allegation of retaliatory discharge under Title VII grows out of

the same kind of retaliation against the protected activity described in the EEOC charge,

additional exhaustion of administrative remedies is not required.36 “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.”37

II. There Are undisputed facts.

The Board accepts as true the Plaintiff’s facts and allegations for the purposes of

this motion.38 In addition, the undisputed facts are those facts set out in the Board’s

Statement of Undisputed Material Facts that Plaintiff admits are true in her response to

that statement.39

III. There are genuine issues of material fact with respect to Plaintiff’s Title

IX retaliation claim.

To prove her Title IX retaliation claim, Plaintiff must show (1) she engaged in

activity protected by Title IX, (2) suffered an adverse employment action, and (3) a causal

connection exists between the protected activity and the adverse employment action.40

“[A] a Title IX retaliation claim only covers conduct protected by Title IX.”41 The parties

do not dispute that the first element is satisfied: Plaintiff engaged in activity protected by

Title IX.42

The parties disagree as to whether there are disputed facts with respect to the

second and third elements of a Title IX retaliation claim. First, the Court addresses the

36 Gupta v. E. Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981).

37 Id.

38 R. Doc. 424-14 at p. 1 n.1.

39 Compare R. Doc. 424-15 with R. Doc. 436.

40 Normore v. Dallas Indep. Sch. Dist., 3:18-CV-02506-E, 2023 WL 3937785, at *23 (N.D. Tex. June 9,

2023) (citing Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014)).

41 Taylor-Travis v. Jackson State Univ., 984 F.3d 1107, 1119 (5th Cir.2021).

42 See R. Doc. 424-14 at p. 6 (“[Plaintiff] cannot satisfy elements two or three [of the Title IX retaliation

framework.”); R. Doc. 432 at pp. 11–12 (Plaintiff acknowledging the Board’s concession as to element one

and describing her Title IX protected activity).

Board’s arguments that there are no genuine disputes of material fact as to whether an

adverse action took place, and second the Court addresses the Board’s argument that

there are no genuine disputes of material fact as to causal connections between the alleged

adverse actions and Plaintiff’s Title IX protected activity.

A. There is no dispute that Plaintiff suffered an adverse

employment action when she was terminated; there are genuine

disputes of material fact as to whether Plaintiff also suffered an

adverse employment action when she received a promotion with

no pay raise.43

At least one adverse employment action is undisputed: Plaintiff was terminated in

January 2022.44 This is sufficient for Plaintiff to meet the first element of a Title IX

retaliation claim by showing she suffered an adverse employment action.45 The Court will

examine whether the Plaintiff also suffered an additional adverse employment action.

The Board contests whether Plaintiff has suffered an additional adverse action in

what it represents as her allegation that she failed to receive a promotion in 2020.46 The

Board argues that it is an undisputed material fact that Plaintiff was promoted in August

2020, to Associate Athletic Director, saying, it is undisputed that Plaintiff does not argue

she was “denied any promotion.”47 For support, the Board cites to Lewis’s testimony that,

in August 2020, she received a “promotion [that] came with no [additional

compensation]”48 and argues that this shows she received a promotion.49 The Board

acknowledges Lewis’s alleged adverse action is “her issue . . . with her pay.”50

43 Though there are genuine disputes of material fact as to whether Plaintiff suffered an adverse

employment action, at least one adverse employment action is undisputed: she was terminated in January

2022. R. Doc. 424-15 at ¶ 48; R. Doc. 436 at ¶ 48. The Court will later address the parties’ causation

arguments as to this adverse employment action. See Part III.B, infra.

44 R. Doc. 424-15 at ¶ 48; R. Doc. 436 at ¶ 48.

45 The Court will later address the parties’ causation arguments as to this adverse employment action.

46 R. Doc. 424-14 at pp. 7–8.

47 R. Doc. 424-15 at ¶ 15.

48 R. Doc. 424-1 at pp. 38–39.

49 R. Doc. 424-15 at ¶ 36; R. Doc. 424-14 at p. 8.

50 R. Doc. 424-14 at p. 8.

In response, Plaintiff denies that her claim is based on her failure to be promoted.

Instead, Plaintiff argues that the August 2020 promotion “was a promotion in name

only.”51 For support, Plaintiff cites the same deposition testimony offered by the Board:

that she received an “increase in duties” that she believes “should have come with [a] pay

increase.”52

It is undisputed that Plaintiff was terminated,53 and further, there is a genuine

dispute as to whether Plaintiff’s lack of pay increase upon her 2020 promotion was an

adverse employment action.54 The Board argues that her promotion without a pay

increase was not an adverse employment action.55 Plaintiff has introduced a dispute of

material fact as to whether her being named an Associate Athletic Director in August 2020

without a pay increase was itself an adverse action under Title IX.56

B. There are genuine disputes of material fact as to the causal

connections between the adverse actions and Plaintiff’s Title IX

protected activity.

Though it is uncontested that Plaintiff was terminated in January 2022,57 there is

a genuine dispute of material fact with respect to the cause of that termination.

Specifically, the parties dispute who terminated Plaintiff and why.

The Board argues that Plaintiff’s termination from LSU was part of a broader

remaking of the football department after Brian Kelly was hired as head football coach,

and accordingly, Kelly was ultimately responsible for Plaintiff’s termination.58 For

51 R. Doc. 436 at ¶ 36.

52 R. Doc. 424-1 at pp. 38–39.

53 R. Doc. 424-15 at ¶ 48; R. Doc. 436 at ¶ 48.

54 R. Doc. 424-15 at ¶ 36, 37; R. Doc. 436 at ¶¶ 36, 37.

55 R. Doc. 424-14 at p. 8.

56 R. Doc. 424-15 at ¶ 36, 37; R. Doc. 436 at ¶¶ 36, 37. Plaintiff does not dispute the Board’s contention that

a salary comparison was done, R. Doc. 424-15 ¶ 37, but does dispute the Board’s contention that Wendy

Nall performed that comparison. R. Doc. 436 at ¶ 37. Plaintiff points to Scott Woodward’s deposition

testimony, R. Doc. 405-4 at pp. 70-71, in which he stated that Stephanie Rempe performed the comparison.

57 R. Doc. 424-15 ¶ 48; R. Doc. 426 at p. 14.

58 E.g., R. Doc. 424-15 at ¶ 26; R. Doc. 424 at pp. 4–5.

support, they point to Kelly’s sworn declaration that he made

“global changes” to the football department,59 that he “did not have any discussions about

terminating her specifically,”60 and thus and that Plaintiff’s termination was simply “a

result of [his] taking over as head coach.”61 The Board’s argument is that Plaintiff’s

termination was not retaliation for her Title IX protected activity—specifically, reporting

allegations of sexual harassment by members of the LSU football department.62

Plaintiff denies that Kelly was responsible for her termination or that it was part of

his larger remaking of the football department, pointing to his seemingly contradictory

deposition testimony in which he states he did not terminate Plaintiff: asked whether he

recommended Plaintiff “be relieved of her employment,” Kelly responded that he

“[n]ever” did so because he “clearly understood [her] situation was one to leave alone”

and “not within [his] purview.”63 At a minimum, there is a genuine dispute as to whether

Brian Kelly had the authority to terminate Plaintiff and whether he gave the order to do

so. This dispute in turn reveals a larger dispute of fact as to who did terminate Plaintiff

and why.

With respect to another alleged adverse action, Plaintiff’s lack of a pay raise when

she was promoted in 2020, there is a genuine dispute as to what measure of control, if

any, Verge Ausberry possessed over Plaintiff’s pay or promotions. The Board contends it

is undisputed that “Ausberry was not involved in setting Plaintiff’s pay (or in her

promotion),” pointing to Plaintiff’s deposition testimony in which she said she did not

59 R. Doc. 424-12 at ¶ 2.

60 Id. at ¶ 6.

61 Id.

62 See R. Doc. 424-14 at pp. 10–13.

63 R. Doc. 405-5 at p. 36.

have a “sense” 64 nor “direct evidence”65 that Ausberry “played a role” in her pay or

promotion.

Plaintiff denies that this is an undisputed fact, pointing to allegations that Ausberry

held some influence over the decisions of athletic director Scott Woodard,66 whom

Plaintiff believes was “someone who had [something] to do with [her] promotion.”67

Specifically, Plaintiff testified in her deposition that Ausberry said “she had to go through

[Ausberry]” to discuss her promotion with Woodward,68 that Woodard was Ausberry’s

“boy,”69 and that Ausberry told Plaintiff she would “never get promoted [at LSU] because

[she] turned [Ausberry] in” for harassing conduct and the “hostile work environment”

Plaintiff believes Ausberry created for her.70

Plaintiff’s evidence creates a genuine dispute of material fact as to whether

Ausberry, who had knowledge of Plaintiff’s protected activity, held control over her

promotion or pay, and this in turn creates a dispute of material fact as to whether her

protected activity caused her Title IX adverse employment action: her promotion without

a pay increase.

IV. There are genuine disputes of material facts with respect to Plaintiff’s

Title VII claims.

A. There are genuine disputes of material fact as to Plaintiff’s claim

for Title VII retaliation.

Title VII prohibits an employer from taking adverse employment action against an

employee because she engages in a protected activity.71 As a result, to establish a prima

64 Lewis Depo., R. Doc. 424-1 at p. 39.

65 Lewis Depo., R. Doc. 424-3 at p. 39; see also R. Doc. 424-4 at p. 28.

66 R. Doc. 219 at ¶ 84.

67 Lewis Depo., R. Doc. 424-1 at p. 39.

68 Lewis Depo., R. Doc. 432-4 at p. 130.

69 Id.

70 Id. at p. 131.

71 Joseph v. Phillips, 2014 WL 5429455 at *3 (E.D. La. Oct. 24, 2014).

facie case of retaliation 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.72

1. There is no dispute that Plaintiff engaged in protected

activity.

“Protected activity is defined as opposition to any practice rendered unlawful by

Title VII, including making a charge, testifying, assisting, or participating in any

investigation, proceeding, or hearing under Title VII.”73 The filing of an EEOC charge is a

protected activity.74

The Board claims Plaintiff’s complaint makes no mention of Title VII protected

activity, and instead states “the ‘protected activity’ she engaged in was reporting Title IX

violations.”75 However, it is undisputed that Plaintiff filed an EEOC charge on April 15,

2021.76 Moreover, Plaintiff complained to Stephanie Rempe about racial discrimination

in Scott Woodward’s hiring and promoting practices in July 2020.77 Accordingly, the

Court finds Plaintiff engaged in protected activity.

2. The Board took adverse employment action against Plaintiff.

The Board accepts as true that Plaintiff suffered an adverse employment action

when she was terminated on January 5, 2022.78

72 Feist v. La. Dep’t of Justice, 730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy v. City of Shreveport, 492

F.3d 551, 556-57 (5th Cir. 2007)).

73 Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (quoting Green v. Administrators of

Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002), as amended on denial of reh'g and reh'g en banc

(Apr. 26, 2002)).

74 Rainey v. Fannie Mae, 46 F. App'x 732 (5th Cir. 2002) (citing Green v. Administrators of Tulane Educ.

Fund, 284 F.3d 642, 657 (5th Cir. 2002), as amended on denial of reh'g and reh'g en banc (Apr. 26, 2002)).

75 R. Doc. 424-14 at p. 14.

76 R. Doc. 424-15 at ¶¶ 23, 62.

77 Lewis Depo. at pp. 108-109.

78 R. Doc. 424-15 at ¶ 33. Termination is considered an “adverse employment action” under Title VII (see

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)).

Plaintiff further claims she was promoted without an increase in compensation in

August 2020.79 The Board does not contest this allegation.80 The Fifth Circuit has

recognized denials of pay increases can be adverse employment actions under Title VII.81

3. There exist genuine issues of material fact as to whether a

causal connection exists between Plaintiff’s protected

activities and the adverse employment actions.

Regarding the causal connection between Plaintiff’s termination and her filing of

an EEOC charge, the Board argues Plaintiff provided no evidence to support a finding of

retaliatory motive.82 In response, Plaintiff provides evidence that she was issued a Right

to Sue Letter from the EEOC on January 3, 202283 and was terminated on January 5,

2022.84 Plaintiff argues “a three-day time lapse is sufficient to show a causal

connection,”85 citing the Fifth Circuit’s decision in Evans v. City of Houston, which held

that a five day time lapse between protected activity and adverse employment action was

sufficient to provide a causal connection.86 However, Plaintiff’s receipt of her Right to Sue

Letter was not a protected activity. Rather, her filing of the EEOC charge on April 15, 2021

was the protected activity at issue in this claim. Approximately nine months elapsed

between Plaintiff’s filing of the EEOC charge and her termination. This time period,

standing alone, is unlikely to be within the very close proximity that is necessary to

establish causation.87

79 Lewis Depo. at pp. 129-130.

80 R. Doc. 424-14 at 22. (“The Board adopts the evidence in Section II.A.2.a showing its legitimate non-

retaliatory/non-discriminatory reason that Plaintiff’s lack of pay increase [sic].”).

81 Fierros v. Texas Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001).

82 R. Doc. 444 at p. 8.

83 R. Doc. 219-9.

84 R. Doc. 421-4.

85 R. Doc. 432 at p. 20.

86 246 F.3d 344, 354 (5th Cir. 2001).

87 See, e.g., Hill v. Brown, 2022 WL 3094329, at *12 (W.D. La. 7/19/2022) (citing Besser v. Texas Gen.

Land Office, 834 Fed. App’x. 876, 885 (5th Cir. 2020) (finding two and one-half months, standing alone, is

not within the very close proximity that is necessary to establish causation)).

Plaintiff correctly notes she may “show causal connection despite a significant time

gap if there is other evidence of retaliation.”88 As other evidence of causal connection

between her EEOC complaint and her termination, Plaintiff provides evidence that Scott

Woodward was aware she had filed an EEOC charge89 and Woodward subsequently

signed Plaintiff’s termination letter.90 Moreover, Plaintiff was on a leave of absence from

the time she filed her EEOC charge until her termination.91 Absence from the office during

the period between a protected activity and an adverse employment action may support

a finding of causal connection.92 The Board maintains Brian Kelly, not Woodward, made

the decision to terminate Plaintiff,93 and Plaintiff offered no evidence Kelly was aware of

her EEOC charge.94 Accordingly, there are genuine issues of material fact as to who made

the decision to terminate Plaintiff and whether the decision was caused by Plaintiff’s filing

of an EEOC charge.

The Board does not directly challenge Plaintiff’s claim of a causal connection

between Plaintiff’s complaint to Stephanie Rempe about racial discrimination in Scott

Woodward’s hiring and promoting practices in July 2020 and Plaintiff’s denial of a pay

increase with her promotion in August 2020.95 It is uncontested that Woodward approved

Plaintiff’s promotion in August 2020.96 In his deposition testimony, Woodward

confirmed he approved Plaintiff’s promotion without a pay increase at that time.97

88 R. Doc. 432 at p. 13 (citing Vargas v. McHugh, 630 F. App'x 213, 217 (5th Cir. 2015)).

89 Woodward Depo. at p. 66.

90 R. Doc. 421-4.

91 R. Doc. 424-15 at ¶ 7.

92 See Fugarino v. Milling, Benson, Woodward LLP, No. CV 21-594, 2022 WL 11082725 *6 (E.D. La. Oct.

19, 2022) (finding a reasonable jury could infer causal connection between a protected activity and

termination where Plaintiff was on a four-month maternity leave between the events).

93 R. Doc. 424-14 at ¶ 8.

94 R. Doc. 444 at p. 8 n.15.

95 See generally, R. Doc. 424-14; R. Doc. 444.

96 R. Doc. 424-15 at ¶ 20.

97 Woodward Depo. at pp. 70-71.

Woodward further testified that Rempe made the analysis to determine the proper

amount of Plaintiff’s salary and Woodward accepted her recommendation.98 Woodward

confirmed he did not meet with Plaintiff in the fall of 2020 to discuss her salary, despite

Plaintiff’s attempts to do so.99 Plaintiff argues this circumstantial evidence creates a

genuine issue of material fact as to the causal connection between Plaintiff’s complaint to

Rempe and Plaintiff’s denial of a pay increase.100 The Court agrees.

B. Plaintiff’s claims of Title VII hostile work environment based on

sex and race discrimination.

The Board includes Plaintiff’s hostile work environment claims in its request for

summary judgment on the race and sex discrimination claims.101 The McDonnell Douglas

burden-shifting analysis does not apply to Plaintiff’s claims of hostile work environment

under Title VII.102

To establish a claim of hostile work environment on the basis of race or sex, “a

plaintiff must show that (1) she is a member of a protected class; (2) she suffered

unwelcomed harassment; (3) the harassment was based on her membership in a

protected class; (4) the harassment ‘affected a term, condition, or privilege of

employment’; and (5) ‘the employer knew or should have known; about the harassment

and ‘failed to take prompt remedial action.’”103

98 Id.

99 Id. at pp. 62-63.

100 R. Doc. 432 at p. 19.

101 R. Doc. 424-14 at p. 19.

102 Other circuits have concluded the McDonnell Douglas burden-shifting does not apply in the context of

hostile work environment claims under Title VII. See Pollard v. E.I. DuPont de Nemours Co., 213 F.3d 933,

943 (6th Cir. 2000) (explaining that the McDonnell Douglas framework cannot apply to a hostile work

environment sexual harassment claim because “there is no legitimate justification for such an environment,

and thus recourse to the McDonnell Douglas test is not warranted”), rev’d on other grounds; see also Martin

v. Nannie & The Newborns, Inc., 3 F.3d 1410, 1417 n.8 (10th Cir. 1993) overruled on other grounds; Johnson

v. Booker T. Washington Broad Serv., Inc., 234 F.3d 501, 510-11 (11th Cir. 2000) (the district courts should

employ normal principles of proof and pleading allocation.). This Court adopted this reasoning in Dowdell

v. Culpepper & Assocs. Sec. Servs., Inc., No. CV 19-11410, 2020 WL 5095274 *7 (E.D. La. Aug. 28, 2020).

103 West v. City of Houston, 960 F.3d 736, 741–42 (5th Cir. 2020) (quoting Ramsey v. Henderson, 286

F.3d 264, 268 (5th Cir. 2002)).

As to the first element, it is undisputed that as an African American woman,

Plaintiff is a member of a protected class on the basis of both her race and her sex.104

Plaintiff claims she suffered unwelcomed harassment because of both her race105 and her

sex.106

1. Racially hostile work environment.

As to the second and third elements, regarding unwelcomed harassment because

of her race, Plaintiff’s deposition testimony reflects that 1) Ausberry referred to her as “an

angry Black woman” in 2020;107 2) in August 2015, Ausberry said that Austin Thomas (a

white male) “looked like a General manager” and that’s why he was promoted over

Plaintiff (a Black woman);108 and 3) Les Miles made comments in Plaintiff’s presence that

he wanted to hire “blondes with big boobs” and thought Black girls were “ugly”

throughout his tenure before 2016.109 Plaintiff also reported Frank Wilson pressured her

to hire more “light skinned black girls” on behalf of Miles before 2016.110 The Board does

not dispute these claims for purposes of summary judgment,111 so the Court finds the

second and third elements of Plaintiff’s hostile work environment claim on the basis of

race are established.

To establish the fourth element, a plaintiff must show that the environment was

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

hostile or abusive, and one that the victim in fact did perceive to be so.”112 “Harassment

104 R. Doc. 424-15 at ¶ 1.

105 R. Doc. 219 at ¶ 309; R. Doc. 432 at 23-26.

106 R. Doc. 432 at pp. 23-26.

107 Lewis Depo. at p. 618.

108 Lewis Depo. at pp. 366, 653-656.

109 Id. at pp. 366, 567-568, 653-54.

110 R. Doc. 405-9 at p. 1.

111 R. Doc. 424-14 at pp. 19-20.

112 La Day, 302 F.3d at 482 (quoting Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998))

(internal quotation marks omitted).

affects a term, condition, or privilege of employment when it is ‘severe or pervasive.’”113

Courts must look at “all the circumstances, including the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work

performance” in determining whether conduct is hostile or abusive.114 In this case, it is

clear from Plaintiff’s deposition testimony and report to HR that she found the Board’s

conduct to be subjectively offensive.115 Therefore, the question before the Court is whether

the complained-of conduct was also objectively offensive.

It is an undisputed fact that only one of these alleged incidents of race-based

harassment occurred within the Title VII statutory time period, namely, Ausberry’s

reference to Plaintiff as an “angry Black woman” in 2020. The Board argues the

“continuing violation” doctrine should not apply to allow consideration of the other, prior

acts of race-based harassment in determining whether harassment was sufficiently

pervasive to constitute a hostile work environment. Unless the continuing violation

theory applies, the statutory time period for EEOC claims is within 300 days of the EEOC

charge.116 In this case, that would mean any conduct occurring after June 19, 2020 should

not be considered in determining whether the harassment was sufficiently pervasive,

since Plaintiff filed her EEOC charge on April 21, 2021.117

To apply the continuing violation doctrine, (1) the plaintiff must demonstrate that

the separate acts are related; and (2) the violation must be continuing; intervening action

113 Russel v. Univ. of Tex. of Permian Basinl, 234 F. App’x 195, 205 (5th Cir. 2007) (quoting La Day v.

Catalyst Tech., Inc., 302 F.3d 474, 482 (5th Cir. 2002)) (emphasis added).

114 Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); see also Calmes v. JPMorgan Chase Bank,

943 F. Supp. 2d 666, 680 (E.D. La. 2013).

115 Lewis Depo. at pp. 366, 567-568, 618 653-54; R. Doc. 405-9; R. Doc. 219-8.

116 Kirkland v. Big Lots Store, Inc., 547 F. App’x 570, 572 (5th Cir. 2013).

117 R. Doc. 219-8.

by the employer, among other things, will sever the acts that preceded it from those

subsequent to it.118 Two considerations are particularly relevant for a continuing violation

claim:

The first is subject matter: Do the alleged acts involve the same type of

discrimination, tending to connect them in a continuing violation? The second is

frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the

nature of an isolated work assignment or employment decision?119

To show recurrence, frequency and identity of the wrongdoer are relevant.120 Moreover,

“the Fifth Circuit has found that a ‘three-year break’ between incidents will defeat any

attempt to establish a continuing violation.”121

In this case, more than three years elapsed between Ausberry’s comment that

Plaintiff was an “angry black woman” in 2020, and any of the incidents of race-based

harassment that occurred during the tenure of Wilson or Miles. It is uncontested that

Miles left LSU in September 2016122 and Wilson left in January 2016.123 Plaintiff offers no

evidence of acts of race-based harassment that occurred between December 31, 2016 and

January 1, 2020.124 Because of the more than three-year gap between alleged incidents of

harassment, the Court finds the continuing violation doctrine does not apply to Plaintiff’s

claim of a racially hostile work environment.125 As such, the Court considers only

Ausberry’s 2020 comment when determining whether the harassment was sufficiently

pervasive to affect a term, condition, or privilege of employment.

118 Heath, 850 F.3d at 738 (quoting Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 328 (5th Cir. 2009).

119 Berry v. Board of Supervisors of La. St. Univ., 715 F.2d 971, 981 (5th Cir.1983); See Heath, 850 F.3d at

736.

120 Butler v. MBNA Tech., Inc., 111 F. App'x 230, 233 (5th Cir. 2004).

121 R. Doc. 424-14 at p. 24 (citing Butler, 111 F. App’x at 234).

122 R. Doc. 424-15 at p. 2.

123 Id.

124 Plaintiff suggests Ausberry subjected her to a “pervasive hostile working environment … because of her

gender” between 2012 and 2021. (R. Doc. 432). However, she does not indicate that any harassment by

Ausberry during this period was on the basis of race.

125 See Butler, 111 F. App’x at 234.

“Simple teasing, offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms and conditions of

employment.”126 The Board argues the “isolated reference to Plaintiff as an angry black

woman (though unprofessional) does not amount to severe and pervasive harassment.”127

The Court agrees. While Ausberry’s 2020 comment was discriminatory, it did not, on its

own, constitute a hostile work environment based on race.128 Since the Board has

established there is no evidence on the record to support a claim of “severe and pervasive

harassment” on the basis of race, the Court grants summary judgment in favor of the

Board as to Plaintiff’s claim of Title VII hostile work environment on the basis of race.129

The Court notes that application of the “three-year rule” to Plaintiff’s hostile work

environment claim on the basis of race does not preclude introduction of evidence about

incidents that occurred outside the statutory time period in support of Plaintiff’s Title VII

discrimination or retaliation claims, including her sexually hostile work environment

claim discussed below.130 “[A]n atmosphere of condoned sexual harassment in a

workplace increases the likelihood of retaliation for complaints in individual cases.…

“[B]ecause an employer's past discriminatory policy and practice may well illustrate that

126 Faragher, 524 U.S. at 788 (internal quotation marks omitted).

127 R. Doc. 424-14 at pp. 19-21.

128 See Cuthbertson v. First Star Logistics, LLC, 638 F. Supp. 3d 581, 592 (W.D.N.C. 2022) (referring to

plaintiff as an “angry black woman,” among other conduct, was insufficient to constitute a hostile work

environment); Robinson v. City of Atlanta, 2010 WL 11440788, at *5 (N.D. Ga. Dec. 21, 2010), report and

recommendation adopted, 2011 WL 13096497 (N.D. Ga. Mar. 14, 2011) (collecting cases) (use of the term

“angry black woman” on two occasions did not constitute a hostile work environment); Peeler v. Premier

Ambulatory Surgical Ctr., LLC, 2019 WL 13290394, at *31 (N.D. Ga. Feb. 6, 2019), report and

recommendation adopted, 2019 WL 13292758 (N.D. Ga. Mar. 29, 2019) (where only evidence of race based

epithet directed at plaintiff was single use of “angry black woman” comment, such was insufficient to

constitute a hostile work environment).

129 Since the Board has establish there is no genuine dispute of material fact as to the fourth element of

Plaintiff’s Title VII claim for a hostile work environment on the basis of race, it is entitled to summary

judgment as a matter of law as to this claim without the Court’s consideration of the fifth element.

130 See, e.g. Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 359 (5th Cir. 1995) (quoting Hawkins v.

Hennepin Tech. Ctr., 900 F.2d 153, 156 (8th Cir. 1990)

the employer's asserted reasons for disparate treatment are a pretext for intentional

discrimination, this evidence should normally be freely admitted at trial.”131

2. Sexually hostile work environment.

As to the second and third elements of her sexually hostile work environment

claim, that is unwelcomed harassment because of her sex, Plaintiff’s deposition testimony

reflects that 1) Ausberry called her a “stupid incompetent bitch” at some point before

Wilson left LSU in 2016;132 2) Ausberry referred to her as “an angry Black woman” in

2020;133 3) Wilson made numerous sexual advances on her including grabbing her breasts

and butt and propositioning her for sex before his original departure in 2016;134 4) Miles

made numerous sexist comments about students in Plaintiff’s presence during his tenure

before 2016 including instructing Plaintiff to hire prettier blonde girls;135 5) Ya’el Loften

testified that Plaintiff reported to her that Wilson exposed his penis to Plaintiff in 2013;136

6) other employees witnessed Ausberry “hollering” and “screaming” at Plaintiff between

2012 and 2021;137 and 7) Wilson was rehired by LSU in December 2021.138 The Board does

not dispute the truth of these allegations for purposes of summary judgment.139 Whether

an environment is sufficiently hostile or abusive depends on a totality of circumstances.140

The Court finds Plaintiff has presented sufficient evidence for a reasonable jury to infer

the second and third elements of Plaintiff’s hostile work environment claim on the basis

of sex are established.

131 Id.

132 Lewis Depo. at p. 278.

133 Id. at p. 618.

134 Id. at pp. 344-350.

135 Id. at p. 568.

136 Lofton Depo. at p. 51.

137 R. Doc. 432 at p. 24 (citing Lofton Depo. at pp. 59-63).

138 R. Doc. 424-15 at ¶ 28.

139 R. Doc. 424-14 at pp. 19-20.

140 Saketoo v. Administrators of Tulane Educational Fund, 31 F.4th 990 (5th Cir. April 21, 2022).

As to the fifth element, Plaintiff has presented evidence that she reported instances

of harassment based on sex to HR. In 2012, Plaintiff reported Les Miles’s sexual

harassment of her and others to Miriam Segar.141 She reported Frank Wilson’s sexual

harassment of her to Yael Lofton.142 In 2014, Plaintiff reported Ausberry’s harassment of

her to Segar.143 In 2019, Plaintiff submitted detailed accounts of sexual harassment by

Miles, Wilson, and Ausberry to HR.144 Wilson was rehired by the Board in December

2021.145 Plaintiff claims the rehiring of Wilson following her complaints, and the Board’s

ongoing “protection” of “Wilson from a Title IX investigation,” indicate the Board failed

to take prompt remedial action following their knowledge of the harassment. Accordingly,

the Court finds Plaintiff has introduced sufficient evidence for a reasonable jury to find

she established the fifth element of her hostile work environment claim on the basis of

sex.

Thus, the question before the Court with regard to Plaintiff’s claim of a hostile work

environment based on sex discrimination is whether Plaintiff can establish the fourth

element of her claim. In other words, was the alleged conduct was objectively offensive,

or sufficiently severe and pervasive to constitute a harassment? As with Plaintiff’s claim

of a racially hostile work environment, it is an undisputed fact that Plaintiff’s allegations

of sexual harassment by Miles and Wilson prior to 2016 fall outside the Title VII statutory

time period.146 As discussed above, the Fifth Circuit has found that a “three-year break”

141 R. Doc. 302-6 at p. 1.

142 R. Doc. 405-14 at p. 2.

143 R. Doc. 295-10.

144 R. Doc. 405-9.

145 R. Doc. 424-15 at ¶ 28.

146 Unless the continuing violation theory applies, the statutory time period for EEOC claims is within 300

days of the EEOC charge. (Kirkland v. Big Lots Store, Inc., 547 F. App’x 570, 572 (5th Cir. 2013)). In this

case, that would be any conduct occurring after June 19, 2020 since Plaintiff filed her EEOC charge on April

21, 2021. (R. Doc. 219-8).

between incidents will defeat any attempt to establish a continuing violation.”147 Because

of the more than three-year gap between the incidents of harassment, the Court finds the

continuing violation doctrine does not apply to incidents of harassment that occurred in

2016 or before.148 As such, when determining whether Plaintiff was subject to a hostile

work environment based on her sex, the Court considers only 1) the claim that Ausberry

repeatedly screamed at Plaintiff from 2012-2021; 2) Ausberry’s 2020 comment that

Plaintiff was an “angry black woman”; and 3) the rehiring of Frank Wilson.

Regarding the claim that Ausberry subjected Plaintiff to a hostile work

environment by repeatedly “hollering” and “screaming” at Plaintiff, the Board argues

“Plaintiff failed to offer any evidence that he did so based on a protected trait and, instead,

admitted Ausberry got along well with other black females.”149 Plaintiff alleged Ausberry

subjected her to “pervasive hostile working environment … because of her gender”

between 2012 and 2021.150 While Plaintiff has not offered evidence of the specific content

of Ausberry’s yelling, the totality of the evidence shows there exists a genuine issue of

material fact as to whether Ausberry’s conduct was based on Plaintiff’s gender.

Moreover, Ausberry referred to Plaintiff as an “angry Black woman” in 2020, which

supports Plaintiff’s claim that Ausberry subjected her to a hostile work environment

based on her sex. Accordingly, Plaintiff has carried her burden of demonstrating the

existence of genuine disputes of material fact precluding the entry of summary judgment

on her Title VII hostile work environment claim on the basis of sex.

147 R. Doc. 424-14 at p. 24 (citing Butler, 111 F. App’x at 234).

148 See Butler, 111 F. App’x at 234.

149 R. Doc. 444 at p. 10.

150 R. Doc. 432 at p. 25.

C. Plaintiff’s claims for race and sex discrimination.

A plaintiff may use either direct or circumstantial evidence to prove a case of

intentional discrimination on the basis of race or sex under Title VII.151 “Direct evidence

is evidence which, if believed, proves the fact [of intentional discrimination] without

inference or presumption.”152 If a plaintiff presents direct evidence, the McDonnell

Douglas test does not apply.153 More often, a plaintiff relies on circumstantial evidence,

which requires the court to apply the McDonnell Douglas burden-shifting analysis.154

Under the McDonnell Douglas test, the plaintiff must first demonstrate a prima facie case

of discrimination.155 If successful, the burden of production shifts to the defendant to

show a legitimate and nondiscriminatory basis for the adverse employment decisions.156

Finally, the plaintiff must then show the defendant’s proffered reason is pretextual or

unworthy of belief.157

Where a plaintiff presents “direct evidence that the employer placed substantial,

though unquantifiable, reliance on a forbidden factor in making the employment decision

… it is appropriate to require the defendant … to show that its decision would have been

justified by wholly legitimate concerns.”158 In other words, in such a case, the burden

shifts to the defendant to show legitimate reasons for the employment action once direct

evidence of discrimination is produced. In the Civil Rights Act of 1991, Congress modified

the Price Waterhouse rule by creating liability where direct evidence of discrimination

exists, even if the employer can prove other factors motivated the adverse employment

151 U.S. Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711, 714 n. 3 (1983).

152 Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (1993).

153 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)

154 Smith v. Touro Infirmary, 2015 WL 5093487 at *2 (E.D. La. Aug. 28, 2015) (applying McDonnell

Douglas analysis to determine motion for summary judgment).

155 Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5t h Cir. 1994) (applying McDonnell Douglas test).

156 Id.

157 Id.

158 Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989).

action.159 That is to say, the other motivating factors now mitigate damages, but do not

preclude liability.

In this case, Plaintiff presented evidence that Ausberry called her an “angry Black

woman” in 2020.160 While this comment implicates both Plaintiff’s race and sex, it does

not, by itself, indicate that Plaintiff’s employer placed substantial reliance on a forbidden

factor in making an employment decision. Therefore, it cannot be considered direct

evidence of discrimination and the McDonnell Douglas burden-shifting analysis

applies.161

The McDonnell Douglas framework applicable to Title VII claims of

discrimination requires Plaintiff to produce evidence to establish a prima facie case of

discrimination by showing that she (1) was in a protected class, (2) was qualified for the

position, (3) suffered an adverse employment action, and (4) was treated less favorably

than similarly situated employees outside of her protected class.162

It is undisputed that, as an African American woman, Plaintiff is a member of a

protected class on the basis of both her race and her sex.163 Plaintiff has identified two

adverse employment actions: 1) Plaintiff was terminated on January 5, 2022;164 and 2)

Plaintiff was promoted without an increase in compensation in August 2020.165 The Fifth

Circuit has recognized denials of pay increases can be adverse employment actions under

Title VII.166

159 Garcia v. City of Houston, 201 F.3d 672, 676 (5th Cir. 2000); see also 42 U.S.C. § 2000e–2(m);

Buchanan v. City of San Antonio, 85 F.3d 196, 200 (5th Cir.1990).

160 Lewis Depo. at p. 618.

161 Smith v. Touro Infirmary, 2015 WL 5093487 at *2 (E.D. La. Aug. 28, 2015) (applying McDonnell

Douglas analysis to determine motion for summary judgment).

162 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

163 R. Doc. 424-15 at ¶ 1.

164 R. Doc. 424-15 at ¶ 33. Termination is considered an “adverse employment action” under Title VII (see

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)).

165 Lewis Depo. at pp. 129-130.

166 Fierros v. Texas Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001).

1. There are genuine issues of material fact as to Plaintiff’s

claim of sex and race discrimination in relation to her

termination.

As to the fourth element of the prima facie case for discrimination related to

Plaintiff’s termination, the Board claims nearly 40 employees were terminated at the

same time as Plaintiff, when Brian Kelly arrived at LSU.167 “Of those terminated, many

were men, and many were White, negating that [Plaintiff’s] race or sex played a role in

the termination.”168 Plaintiff, meanwhile, maintains that her termination would not have

occurred but for her protected class identities.169 Moreover, Plaintiff’s claim that she has

“few peers if any in the SEC” introduces a genuine issue of material fact as to whether any

of the nearly 40 persons terminated at the same time were “similarly situated” with

Plaintiff.170

The Board argues, even if Plaintiff could demonstrate a prima facie case of

discrimination based on her termination, the Board could show a nondiscriminatory and

legitimate basis for the action, since “[s]taff turnover as a result of a coaching change is a

legitimate reason for Plaintiff’s termination.”171

Once Defendant produces a “legitimate, nondiscriminatory and nonretaliatory

reason, the burden shifts to Plaintiff to show that [Defendant’s] reasons were

pretextual.”172 Plaintiff offers several arguments for why the Board’s reason was

pretextual. First, Plaintiff provides evidence that it was not Kelly, but Scott Woodward,

who signed her termination letter.173 Woodward was aware of Plaintiff’s reports of sexual

167 R. Doc. 424-14 at p. 11.

168 Id. at p. 21 (citing Nall Decl. ¶6).

169 R. Doc. 432 at pp. 11-12.

170 Id. at p. 16 (citing R. Doc. 405-4 at pp. 70-71).

171 Id.

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

173 R. Doc. 421-4.

harassment and her EEOC charge.174 Next, Plaintiff argues she was terminated at the time

her reported sexual harasser, Frank Wilson was rehired, and the Board “continue[s] to

protect Wilson from a Title IX investigation.”175 Plaintiff further claims Ausberry referred

to her as an “angry black woman,”176 and was otherwise hostile to her on the basis of her

race and sex in the months leading up to termination.177 Ausberry and Woodward were

close personal friends.178 Moreover, even if the Board can prove other, legitimate factors

motivated the adverse employment action, if Plaintiff can establish that the decision was

in-part motivated by prohibited discrimination, the Board still will be liable.179

The jury must weigh the credibility of the evidence presented by Plaintiff and the

Board to resolve the factual disputes relating to whether the reason given for her

termination was pretextual. If Plaintiff’s position is proven, a reasonably jury could infer

discrimination was at least a partial motive for Plaintiff’s termination. Accordingly, there

are genuine issues of material fact as to the reasons for Plaintiff’s termination and whether

the decision was based in full or in part on Plaintiff’s membership in a protected class.

2. There are genuine issues of material fact as to Plaintiff’s

claim of sex and race discrimination in relation to her

promotion without salary increase.

As discussed above, Plaintiff has established she is a member of a protected class

and suffered an adverse employment action by being promoted without an increase in

pay, thereby establishing the first and third elements of the prima facie case for

174 Woodward Depo. pp. 66-67, 82-84.

175 R. Doc. 432 at p. 25.

176 Id. at p. 19.

177 Id. at p. 24.

178 R. Doc. 432 at p. 18. Woodward described the two as close personal friends (Woodward Depo. at p. 14);

Ausberry referred to Woodward as “my boy.”

179 Garcia v. City of Houston, 201 F.3d 672, 676 (5th Cir. 2000); see also 42 U.S.C. § 2000e–2(m);

Buchanan v. City of San Antonio, 85 F.3d 196, 200 (5th Cir.1990).

discrimination related to Plaintiff’s promotion without an increase in salary.180 As to the

second and fourth elements, the Board argues:

Plaintiff cannot establish that she was treated worse than any similarly situated

employees based on her race or gender. … At the time of her leave, the comparative

data shows Plaintiff was one of the highest-paid persons in her job title. Of the nine

employees occupying the position of Associate Athletic Director, Plaintiff was the

fourth highest-paid. The third highest-paid person was also a Black female,

negating her suggestion of race and gender discrimination.181

In response, Plaintiff claims that Dr. LaKeitha Poole and Andrea Tape, who were

also promoted in in August 2020, received salary increases with their promotions.182

Plaintiff further argues Ausberry’s salary was doubled when he was promoted in 2019.183

Moreover, Plaintiff asserts she “has few peers if any in the SEC,” making it difficult to

draw comparisons between similarly situated employees.184 Plaintiff claims she

approached Ausberry in November and December 2020 about her lack of salary increase

and Ausberry told Plaintiff “she would never be promoted because she used Title IX too

much and had reported him.”185

Plaintiff’s claim that she has “few peers if any in the SEC” introduces a genuine

issue of material fact as to whether others with her job title were truly similarly situated.

Ausberry’s response to Plaintiff’s inquiry about the lack of salary increase also raises a

genuine issue of material fact regarding her treatment in comparison to others who were

similarly situated. The jury must weigh the credibility of the evidence presented by

Plaintiff and the Board to resolve the factual disputes relating to whether Plaintiff can

establish a claim of discrimination related to her promotion without salary increase.

180 See Section C, supra, pp. 22-23.

181 R. Doc. 424-14 at p. 22.

182 R. Doc. 432 at 7 (citing Lewis Affidavit at ¶ 3).

183 Id. at p. 17.

184 Id. at pp. 16-17.

185 R. Doc. 432 at p. 18.

Accordingly, the Board’s motion for summary judgment must be denied on

Plaintiffs claims of sex and race discrimination under Title VII.

CONCLUSION

The Board’s Motion for Summary Judgment on Plaintiffs Title [Xx and Title VII

claims is GRANTED IN PART and DENIED IN PART.

IT IS ORDERED that judgment be entered in favor of the Board as to Plaintiff's

Title VII hostile work environment claim on the basis of race.

IT IS FURTHER ORDERED that the Board’s motion for summary judgment is

DENIED as to all other claims.

New Orleans, Louisiana, this 1st day of December, 2023.

Sega Mond _

SUSIE MOR:

UNITED STATES DISTRICT JUDGE

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