Lewis v. Eye Care Surgery Center, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JOHNNIE LEWIS CIVIL ACTION

VERSUS 21-475-SDD-RLB

EYE CARE SURGERY CENTER, INC.

RULING

This matter is before the Court on the Motion for Summary Judgment1 by

Defendant, Eye Care Surgery Center, Inc. (“Defendant”). Plaintiff, Johnnie Lewis

(“Plaintiff”), has filed an Opposition2 to this motion, to which Defendant filed a Reply.3 For

the following reasons, the Court finds that Defendant’s motion should be granted.

I. LOCAL RULES AND EVIDENTIARY OBJECTIONS

A. Local Rules – Statements of Fact

Parties are required to comply with the following Local Rules of the Middle District

of Louisiana in filing and opposing motions for summary judgment. Local Rule 56(f)

provides:

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

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

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

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

specific page or paragraph of identified record material supporting the

assertion. The court may disregard any statement of fact not supported by

a specific citation to record material properly considered on summary

judgment. The court shall have no independent duty to search or

consider any part of the record not specifically referenced in the

1 Rec. Doc. 30.

2 Rec. Doc. 46.

3 Rec. Doc. 47.

parties’ separate statement of facts. (emphasis added).

Local Rule 56 (c) requires an opposing party to:

submit with its opposition a separate, short, and concise statement of

material facts. The opposing statement shall admit, deny or qualify the

facts by reference to each numbered paragraph of the moving party’s

statement of material facts and unless a fact is admitted, shall support

each denial or qualification by a record citation as required by this

rule. Each such statement shall begin with the designation “Admitted,”

“Denied,” or “Qualified” and, in the case of an admission, shall end with such

designation. The opposing statement may contain in a separately titled

section additional facts, each set forth in a separately numbered paragraph

and supported by a record citation as required by subsection (f) of this rule.

(emphasis added).

Unless otherwise indicated, the Factual Background below is comprised almost

entirely of facts admitted or deemed admitted for purposes of this Motion based on

Plaintiff's failure to comply with Local Rules 56(c) & (f) of the Middle District of Louisiana.

Where Plaintiff failed to cite to record evidence in denying Defendant's statements,

submitted legal argument rather than a supported, contradictory factual statement, or

cited evidence that does not support Plaintiff's counterstatement, the Defendant's

proffered statements of fact are deemed admitted under Rule 56 of the Federal Rules of

Civil Procedure and the Local Rules of this Court.

In Plaintiff’s Opposing Statement of Material Facts, she admits Defendant’s

statement Nos. 6, 7, 19, and 20.4 However, for Defendant’s statement Nos. 1, 2, 10, 11,

16, 17, 18, and 22, Plaintiff simply states “disputed” or “denied,” without reference to any

evidence. Plaintiff’s Opposition brief contains a scant two citations to evidence, both

generally citing to Plaintiff’s entire Affidavit.5 The Fifth Circuit has instructed:

4 Rec. Doc. 46-4.

5 See id. at pp. 6, 10.

When evidence exists in the summary judgment record but the nonmovant

fails even to refer to it in the response to the motion for summary judgment,

that evidence is not properly before the district court. See Ragas v.

Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v.

Tenneco Resins, Inc., 953 F.2d 909, 916 (5th Cir. 1992), cert. denied, 506

U.S. 832, 113 S. Ct. 98, 121 L. Ed. 2d 59 (1992). “Rule 56 does not impose

upon the district court a duty to sift through the record in search of evidence

to support a party's opposition to summary judgment.” Ragas, 136 F.3d at

458; [Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996)]; Forsyth v.

Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871, 115 S.

Ct. 195, 130 L. Ed. 2d 127 (1994); Skotak, 953 F.2d at 916 n. 7; see also

Nissho–Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)

(it is not necessary “that the entire record in the case ... be searched and

found bereft of a genuine issue of material fact before summary judgment

may be properly entered”); cf. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991) (“Judges are not like pigs, hunting for truffles buried in briefs”).

Because [Plaintiff] did not identify any evidence of damages in his summary

judgment response, the evidence was not properly before the district court

and will not be considered here.6

Thus, these statements are deemed admitted unless they are otherwise inadmissible

based on Plaintiff’s evidentiary challenges.

For several remaining statements, Plaintiff responds with “Denied” and a general

reference to Plaintiff’s entire 47-paragraph Affidavit. This also fails to comply with the

Local Rules and Rule 56 of the Federal Rules of Civil Procedure. A “non-movant must

‘identify specific evidence in the record, and [ ] articulate the “precise manner” in which

that evidence support[s] [her] claim.’”7 In the absence of proof, the Court will not assume

the nonmovant could or would prove the necessary facts, and the mere argued existence

of a fact dispute will not defeat a properly supported motion.8

6 Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003).

7 Watkins v. Experian Info. Sols., Inc., No. 13-239, 2014 WL 12879669, at *4 (W.D. Tex. Sept. 8, 2014),

report and recommendation adopted, 2014 WL 12879668 (W.D. Tex. Oct. 3, 2014)(quoting Forsyth v. Barr,

19 F.3d 1527, 1537 (5th Cir. 1994))(emphasis added).

8 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little, 37 F.3d at 1075); Simmons

v. Berglin, 401 F. App'x 903, 905, 908 (5th Cir. 2010) (citing Anderson, 477 U.S. at 248); Boudreaux v.

Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005) (citations omitted).

B. Plaintiff’s Affidavit/Purported Evidence

Plaintiff’s Affidavit presents evidentiary problems. First, it does not state that it is

based on her personal knowledge, and it is rife with hearsay and speculation lacking

underlying factual support. As this Court has held:

For testimony from an affidavit to be admissible for summary judgment

purposes, the affidavit must: 1) be based on personal knowledge, 2) set out

facts that would be admissible in evidence, and 3) show that the affiant or

declarant is competent to testify on the matters stated. Fed. R. Civ. P.

56(c)(4).

Further, it is not enough to merely state that the affidavit is based on

personal knowledge, it must be clear that it is also based on facts alleged

in the affidavit. See Bright v. Ashcraft, 259 F. Supp. 2d 494, 498 (E.D. La.

2003)(“A declarant must provide evidence to establish that he has personal

knowledge of the facts stated.”). Personal knowledge means that the affiant

“must have had an opportunity to observe, and must have actually observed

the fact.” Ripple v. Marble Falls Indep. Sch. Dist., 99 F. Supp. 3d 662, 673

(W.D. Tex. 2015). Finally, “[u]nsubstantiated assertions, improbable

inferences, and unsupported speculation are not competent summary

judgment evidence.” Walker v. SBC Servs., Inc., 375 F. Supp. 2d 524, 535

(N.D. Tex. 2005). Any statements that violate the rule[s] may “not [be]

considered for summary judgment purposes; any portions of the

declarations that are not struck remain part of the summary judgment

record.” Ripple v. Marble Falls Indep. Sch. Dist., 99 F. Supp. 3d 662, 673

(W.D. Tex. 2015).9

Plaintiff makes several attestations for which there is no foundation of her personal

knowledge for the offered facts. For example, Plaintiff attests she was passed over for

promotions, for which she was qualified, in favor of co-workers “less qualified than

[Plaintiff]” or “less trained in skill and effort”;10 she attests that other unidentified

employees “were offended and witnessed instances of harassment, retaliation, or

discrimination”;11 she attests that another African-American employee “indicated to

9 Floyd v. Chilly’s L.L.C. of Alabama, No. 15-00544-BAJ-RLB, 2017 WL 1455024 at *3 (M.D. La. Apr. 21,

2017).

10 Rec. Doc. 46-1, ¶¶ 4-5, 14.

11 Id. at ¶ 9.

[Plaintiff]” that she signed an affidavit in support of Defendant “to keep her job,” and this

employee “expressed concerns about harassment”;12 she attests that Defendant

employed more than 50 employees during her employment period;13 and she attests she

was paid less than men employed by Defendant for “substantially the same

responsibility.”14 Plaintiff offers no context for these statements, no underlying foundation

to demonstrate how she obtained personal knowledge to make the statements, and she

is not competent to attest to what others experienced, witnessed, or stated.

While summary judgment affidavits need not contain any magic language, the

affiant's personal knowledge and competence must be reasonably inferred from their

positions and the nature of their participation in the matters to which they swore.15 In

Russell v. Parkview Baptist School, Inc.,16 another Section of this Court noted that,

[T]he Fifth Circuit quoted with approval a Ninth Circuit opinion which “found

it proper in the summary judgment context for district courts to rely on

affidavits where the affiants' ‘personal knowledge and competence to testify

are reasonably inferred from their positions and the nature of their

participation in the matters to which they swore.’” Id. (quoting Barthelemy v.

Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990)). Thus, in

DIRECTV, the Fifth Circuit declined to strike an affidavit for lack of personal

knowledge because it was within the affiant's position—or his “sphere of

responsibility”—to be familiar with the investigation discussed in the

affidavit, so his knowledge could be “reasonably inferred.” Id. (quoting

Hodges v. Exxon Corp., 563 F. Supp. 667, 669–70 (M.D. La. 1983)).

There is nothing before the Court to demonstrate Plaintiff’s competence and/or personal

knowledge to testify that Defendant’s payroll practices result in disparate pay for men and

12 Id. at ¶¶ 29-30.

13 Id. at ¶ 12.

14 Id. at ¶¶ 10, 13.

15 In re Green, 968 F.3d 516, 523-24 (5th Cir. 2020) (citations omitted).

16 2021 WL 1147162, *3 (M.D. La. Mar. 25, 2021).

women performing the same jobs. Plaintiff does not describe her job duties in the position

of Accounts Payable Manager; thus, the Court cannot infer that access to information

such as Defendant’s general pay tables, promotion practices, job

descriptions/qualifications, or any side-by-side comparison of specific candidates and

specific positions is within Plaintiff’s “sphere of responsibility.”

Third, Plaintiff’s Affidavit contains numerous legal conclusions offered as “facts.”

Conclusory statements without proper support do not meet the requirements of Rule

56(e).17 Further, the generalized testimony of a party's subjective belief is insufficient to

create an issue for trial when the beliefs are not substantiated.18 While Plaintiff is indeed

capable of attesting to her personal experiences and feelings, Plaintiff cannot create

genuine issues of material fact based on her feelings and by reciting boilerplate legalese.

For example, Plaintiff attests that: (1) she “suffered an adverse employment action” and

was “constructively terminated”;19 (2) she “was subjected to a hostile work environment”

that was “pervasive” and “affected a term, condition, or privilege of [her] employment”;20

(3) the harassment she experienced was “objectionably and substantially offensive not

only to [her], but also to any reasonable person” and was “so severe or pervasive as to

alter the conditions of [her] employment”;21 the harassment was “threatening and more

17 See Goodman v. Life Ins. Co. of North America, 244 F.3d 138 (5th Cir. 2000)(citing Boyd v. State Farm

Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998); Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th

Cir. 1995)(“Although we consider the evidence in the light most favorable to the nonmoving party, ...

conclusory allegations unsupported by concrete and particular facts will not prevent an award of summary

judgment.”)(internal citations omitted); and Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th

Cir. 1985)); see also Miller Exploration Co. v. Energy Drilling Co., 130 F.Supp.2d 781, 785 (W.D. La. 2001).

18 Bickerstaff v. Whitney Natl. Bank, No. 96-30231, 1996 WL 595654, at *3 (5th Cir. Sept. 20, 1996);

Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004); Armendariz v. Pinkerton Tobacco Co.,

58 F.3d 144, 152-53 (5th Cir. 1995).

19 Id. at ¶ 16.

20 Id. at ¶¶ 17, 19.

21 Id. at ¶ 21.

than mere offensive utterances”;22 and the harassment was “extreme and outrageous,”

“beyond all possible bounds of decency and to be regarded as atrocious and utterly

intolerable in a civilized community.”23 Plaintiff’s recitation of the jurisprudential

requirements or elements of her causes of action does not constitute competent summary

judgment evidence where such statements are not supported by independent facts based

on Plaintiff’s personal knowledge and experience.

Accordingly, the Court will consider only properly supported attestations based on

Plaintiff’s personal knowledge in deciding this motion.

The Court must also note that Plaintiff’s Opposition contains an abundance of

statements for which absolutely no evidence has been provided to this Court. It is

axiomatic that unsupported arguments and representations of counsel in a brief are not

competent summary judgment evidence,24 and Plaintiff cannot survive summary

judgment based on the impassioned statements of counsel and evidence referenced or

promised but not presented in opposition to Defendant’s summary judgment motion.

Plaintiff contends she has provided “documented experiences” of a pattern of

being overlooked for promotions”; “biased negative performance reviews”;25 “answers to

interrogatories and affidavits”;26 “accounts” of coworkers who witnessed or suffered

harassment;27 “various pieces of evidence and testimonies that validate [Plaintiff’s]

experience”; “internal communications, including emails and memos”; “medical and

psychological records;” and corroborating “colleague testimonies.”28 Yet, none of this

22 Id. at ¶ 22.

23 Id. at ¶¶ 41, 43.

24 Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007).

25 Rec. Doc. 46, p. 1.

26 Id. at p. 4.

27 Id. at p. 8.

28 Id. at p. 9-10

purported evidence has been submitted to the Court. Plaintiff ostensibly acknowledges

this deficiency, imploring the Court to “recognize[] the gravity of these allegations and

permit[] Ms. Lewis the opportunity to present her case in its entirety.”29 Plaintiff maintains

that her allegations, “if substantiated through the legal process, have the potential to

uncover discriminatory practices that are in direct violation of both federal and state laws,

thereby necessitating a thorough and fair evaluation of the facts at hand.”30 These

arguments show that Plaintiff misapprehends her burden under Rule 56 as the opposing

party, an error further demonstrated by her reliance on the Rule 12(b)(6) pleading

standard in her Opposition.31 Plaintiff was required to submit this evidence in opposing

Defendant’s motion; Plaintiff cannot survive summary judgment on the promise of

substantial evidence that might later be submitted at trial.

C. Plaintiff’s Hearsay and Evidentiary Objections

Plaintiff objects generally to Defendant’s Statement of Uncontested Material Facts

Nos. 10, 11, and 12 as hearsay. Plaintiff lodges the following objection to Defendant’s

Statement of Uncontested Material Facts Nos. 16, 17, 18, 21, and 22: “‘Under Federal

Rule of Civil Procedure 56(c)(2), a "party may object that the material cited to support or

dispute a fact cannot be presented in a form that would be admissible in evidence." Fed.

R. Civ. P. 56(c)(2).’ Musket Corp. v. Suncor Energy (U.S.A.) Mktg., Inc., CIVIL ACTION

H-15-100, at *2 (S.D. Tex. Nov. 15, 2016).”32 Plaintiff’s Opposition is devoid of any

argument in support of these evidentiary objections.

29 Id. at p. 7.

30 Id.

31 Id. at p. 6.

32 Rec. Doc. 46-4.

Plaintiff claims that the following attestations made by Defendant’s Human

Resources Payroll Manager Racheal Hayward-Cash (“Hayward-Cash”) are hearsay: (1)

the standard annual pay increase for staff at Eye Care Surgeons is 3%;33 (2) annual pay

increases above 3% are typically reserved for those situations when an employee

changes job position or receives a promotion;34 and (3) Plaintiff received annual pay

increases exceeding the standard 3% annual pay increase for staff in both 2019 and 2020

despite neither changing her job position nor receiving a promotion.35 There is no basis

for Plaintiff’s hearsay objections, and she does not argue any.

Hayward-Cash provided a sworn Declaration wherein she attests that the facts

provided were based on her personal knowledge as Defendant’s current Human

Resources Payroll Manager, a position that she has held for nearly thirty years.36 She

further attests that, in this role, she is “familiar with the business and operations of Eye

Care Surgeons including the Human Resources department and the Payroll department

functions.”37 The Fifth Circuit has held that an official title alone is sufficient to indicate a

basis of personal knowledge when that title clearly identifies the official's sphere of

responsibility and the facts stated in the affidavit are within that sphere.38 The facts

denounced by Plaintiff as hearsay easily fall within the sphere of responsibility in

Hayward-Cash’s role in Defendant’s company. Plaintiff’s hearsay objections to

Defendant’s Statement of Uncontested Material Facts Nos. 10, 11, and 12 are DENIED.

33 Id. at ¶ 14.

34 Id. at ¶ 15.

35 Id. at ¶ 16.

36 Id. at ¶¶ 1-2.

37 Id. at ¶ 3.

38 Cutting Underwater Technologies USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 516 (5th Cir.

2012) (quoting Rutledge v. Liab. Ins. Indus., 487 F.Supp. 5, 7 (W.D. La. 1979)).

As to Plaintiff’s claim that Defendant’s Statement of Uncontested Material Facts

Nos. 16, 17, 18, 21, and 22 “cannot be presented in a form that would be admissible in

evidence,” the Court denies these objections. Although Plaintiff has provided no basis

for her challenge to these attestations made by Hayward-Cash and her former co-worker

Destinee Porche (“Porche”), the Court assumes that the objection is based on hearsay.

The attestations made by Porche are based on her own personal knowledge, recounting

a conversation of which she was a participant, and explaining her understanding of a

reference to a popular song.39 Plaintiff has not shown that Porche is incompetent to make

these statements; alternatively, Plaintiff has not shown that this evidence could not be

reduced to admissible evidence at trial. The same is true for the information provided by

Hayward-Cash regarding the company’s investigation of a racially motivated incident.

Whether statements made by a declarant are hearsay is not relevant in the summary

judgment context because at this stage, “materials cited to support or dispute a fact need

only be capable of being ‘presented in a form that would be admissible in evidence.’”40

Plaintiff’s admissibility objections are denied.

II. FACTUAL BACKGROUND

Defendant is a physician-owned eye care and surgery center that has served

Baton Rouge and the surrounding area for over thirty years. Dr. Scott Nelson, M.D. (“Dr.

Nelson”) is an ophthalmologist who works for and owns the company.41 Defendant

provides comprehensive eye care and vision services, including but not limited to,

comprehensive eye exams, vision correction services through glasses and contact

39 See Rec. Doc. 30-9, ¶ 7.

40 LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed. R.

Civ. P. 56(c)(2)).

41 Rec. Doc. 30-6, Declaration of Scott Nelson, M.D. (“Nelson Decl.”), ¶ 3.

lenses, LASIK surgery, cataract surgery and the most current surgical techniques

available.42 Until recently, Defendant employed less than fifty people.43

All employees, including Plaintiff, receive and review a copy of the employee

handbook and must provide a signed acknowledgment stating that they have completed

a review of the handbook and have a familiarity and understanding of its policies.44

Plaintiff acknowledged in writing that she received and reviewed the employee handbooks

provided to her in 2018 and 2019.45

Plaintiff began working for Defendant in July 2017 through a temporary account

staffing agency.46 Thereafter, Plaintiff applied for and was hired to a full-time position in

Defendant’s Accounts Payable department on January 1, 2018, at a pay rate of

$20.00/hour.47 Plaintiff received a favorable annual review on January 28, 2019, resulting

in a base pay increase to $22.00/hour retroactive to January 13, 2019.48 Plaintiff received

a favorable annual review on March 9, 2020, resulting in a base pay increase to

$23.00/hour retroactive to February 23, 2020.49

42 Rec. Doc. 30-3, Declaration of Racheal Hayward-Cash (“Hayward-Cash Decl.”), ¶ 5. Plaintiff disputes

this fact but cites no evidence to refute it.

43 Id. at ¶ 6. Plaintiff disputes this fact but cites no evidence to refute it. Plaintiff attests that while she was

employed by Defendant, it employed more than fifty people, Rec. Doc. 46-1, ¶ 12, but she offers no

foundation for her knowledge of this fact.

44 Id. at ¶ 8; Rec. Doc. 30-4, Tiger Vison LLC Eye Care Surgery Center Employee Handbook (Rev.

1/1/2020). Plaintiff attests that this handbook is not the same handbook she received and signed when she

began her employment with Defendant. Rec. Doc. 46-1, ¶ 45. Indeed, the handbook reflects that it was

revised on January 1, 2020, and Plaintiff’s Acknowledgments of Receipt of Defendant’s handbook were

signed on January 12, 2018 and February 19, 2019. See Rec. Doc. 30-5. Nevertheless, Plaintiff fails to

offer a copy of the handbook(s) she received, identify any distinctions between the handbooks, or argue

why any distinctions are relevant to her claims.

45 Rec. Doc. 30-5.

46 Hayward-Cash Decl., ¶ 10.

47 Id. at ¶ 11.

48 Id. at ¶ 12. Plaintiff denies this fact and cites generally to her entire Affidavit; however, nothing in Plaintiff’s

affidavit disputes this fact.

49 Id. at ¶ 13. Plaintiff denies this fact and cites generally to her entire Affidavit; however, nothing in Plaintiff’s

affidavit disputes this fact.

The standard annual pay increase for staff at Eye Care Surgeons is 3%,50 and

annual pay increases above 3% are typically reserved for those situations when an

employee changes job position or receives a promotion.51 Plaintiff received annual pay

increases exceeding the standard 3% annual pay increase for staff in both 2019 and 2020

despite neither changing her job position nor receiving a promotion.52 Plaintiff’s favorable

annual reviews in 2019 and 2020 were conducted by Robert Johnson, and he approved

the accompanying above-average pay increases.53

Plaintiff claims she was subjected to race and sex discrimination and a racially

hostile work environment during her employment with Defendant.54 Specifically, Plaintiff

attests that she “experience[ed]” a comment from a White co-worker that the co-worker’s

daughter went to school and told her teacher she was a “real n***** rockstar.”55

Defendant’s employee Destinee Porche, an African-American female working in the

Insurance Precertification Department since October 1, 2015,56 witnessed and

participated in the conversation wherein this comment was made.57

Porche attests that she shares an office at Eye Care Surgeons with Aryel

Herrington and Lashonda Cash, and their conversations frequently concern their

children’s activities.58 Porche attests she did not hear Aryel Herrington use the actual

50 Id. at ¶ 14. Plaintiff disputes this fact but cites no evidence to refute it.

51 Id. at ¶ 15. Plaintiff disputes this fact but cites no evidence to refute it.

52 Id. at ¶ 16. Plaintiff denies this fact and cites generally to her entire Affidavit; however, nothing in Plaintiff’s

affidavit disputes this fact.

53 Id. at ¶¶ 17, 18. Plaintiff denies this fact and cites generally to her entire Affidavit; however, nothing in

Plaintiff’s affidavit disputes this fact.

54 Rec. Doc. 46-1, ¶¶ 15, 17.

55 Id. at ¶ 18(b).

56 Rec. Doc. 30-11, Affidavit of Destinee Porche (“Porche Affidavit”), ¶¶ 3, 5. Plaintiff inexplicably denies

this statement; however, nothing in Plaintiff’s affidavit disputes this fact.

57 Id. at ¶ 6. Plaintiff responds that this statement is “disputed in part,” but she fails to identify what portion

of the statement is disputed and to cite to any evidence. See Rec. Doc. 46-4, p. 3.

58 Id. at ¶ 7. Plaintiff denies this fact; however, nothing in Plaintiff’s affidavit disputes this fact.

racially derogatory term when recounting her toddler-age daughter’s comments.59

Further, Porche attests she was not offended by this story.60

Plaintiff also describes as racial harassment an incident when she discovered a

chair upon which the words “KKK N*****” were written in the break room next to her

office.61 Hayward-Cash attests that this chair, with the inscription “KKK” carved into its

arm, was discovered and reported by an employee other than Plaintiff on July 6, 2020.62

The break room at Eye Care Surgeons is accessible to all employees and their children

and to numerous non-employee service contractors.63 Defendant immediately removed

the chair from the break room, contacted legal counsel, contracted for cultural sensitivity,

bullying, and harassment training, and followed up with the reporting employee.64

However, an investigation into the source of the inscription failed to yield actionable

information.65

Hayward-Cash attests that, during Plaintiff’s employment, Plaintiff discussed

employment-related concerns with her but never made a “single race-based allegation of

mistreatment or discrimination to me [Hayward-Cash] during her employment, nor did she

claim that she was experiencing a hostile work environment.”66 Likewise, Dr. Newton

59 Id. Plaintiff responds that this statement is “disputed in part,” but she fails to identify what portion of the

statement is disputed and to cite to any evidence. See Rec. Doc. 46-4, p. 3.

60 Id. at ¶ 8.

61 Rec. Doc. 46-1, ¶ 18(c).

62 Hayward-Cash Decl., ¶¶ 19, 20. Plaintiff denies this fact but cites no evidence to refute it.

63 Id. at ¶ 23. Plaintiff denies this fact and cites generally to her entire Affidavit; however, nothing in Plaintiff’s

Affidavit disputes this fact.

64 Id. at ¶ 21. Plaintiff denies this fact but cites no evidence to refute it.

65 Id. at ¶ 22. Plaintiff denies this fact and cites generally to her entire Affidavit; however, nothing in Plaintiff’s

Affidavit specifically disputes this fact. Plaintiff does attest that her reports of racial harassment “went

unanswered” and that management “failed to do anything about” her complaints, Rec. Doc. 46-1 at ¶¶ 33,

36, but nothing in her Affidavit specifically refutes the offered fact – that an investigation into the chair

incident was conducted but unfruitful.

66 Id. at ¶¶ 24, 25. Plaintiff denies this fact and cites generally to her entire Affidavit; however, nothing in

Plaintiff’s Affidavit specifically disputes this fact. Plaintiff attests that she reported these claims to Dr. Scott

attests that Plaintiff often met with him to discuss “perceived issues in office operations,”

most of which were about the “management style of Robert Johnson;” however, Plaintiff

“never made a racial allegation or allegation of a hostile work environment in any

conversation with me.”67 Plaintiff counters Dr. Nelson’s testimony and attests that she

did report allegations of race discrimination and harassment to Dr. Nelson.68

Dr. Nelson recounts that he always enjoyed talking to Plaintiff, and he believed

that her employment concerns were always resolved after they discussed them.69

Further, Defendant states that Plaintiff was the only employee trusted to work from home

during the early stages of the COVID pandemic.70

Plaintiff also claims she was not given the opportunity to apply for promotions with

Defendant and that a less qualified, White employee was promoted over her.71 Defendant

maintains that Plaintiff was neither prohibited nor dissuaded from applying for either the

Billing Manager or Precertification Specialist Supervisor positions at Eye Care

Surgeons.72 However, Defendant explains that these positions require medical billing

coding experience and proficiency in the use of Current Procedural Terminology (CPT)

and Internal Classification of Diseases-10 (ICD-10), qualifications Plaintiff lacked.73

Nelson, owner of Eye Care Surgeons, and to “upper management;” Rec. Doc. 46-1 at ¶¶ 33, 36however,

she does not attest that she reported her discrimination claims directly to Hayward-Cash.

67 Rec. Doc. 30-6, Affidavit of Scott Nelson, M.D. (“Nelson Affidavit”), ¶¶ 5, 7.

68 Plaintiff’s Affidavit at ¶¶ 7, 20, 26, 27, 37. Plaintiff attached as an exhibit to her Opposition a purported

email sent to Dr. Nelson detailing general office complaints and personal/racial issues with the company.

Rec. Doc. 46-3. First, Plaintiff never cites the Court to this exhibit. Second, the details found in the exhibit

do not change the Court’s reasoning and analysis in this Ruling.

69 Nelson Affidavit, ¶ 6.

70 Hayward-Cash Decl., ¶ 31. Plaintiff denies this fact and cites generally to her entire Affidavit; however,

nothing in Plaintiff’s Affidavit specifically disputes this fact.

71 Plaintiff’s Affidavit at ¶¶ 4, 5.

72 Hayward-Cash Decl., ¶¶ 26, 27. Plaintiff denies this fact and cites generally to her entire Affidavit;

however, nothing in Plaintiff’s Affidavit specifically disputes this fact.

73 Id. at ¶¶ 28-30. Plaintiff denies these facts and cites generally to her entire Affidavit; however, nothing in

Plaintiff’s Affidavit specifically disputes this fact.

According to Defendant, Plaintiff voluntarily resigned on July 24, 2020;74 Plaintiff

maintains she was forced to quit because her working conditions were so intolerable.75

Plaintiff filed a Charge of Discrimination with the EEOC76 and received a Right to Sue

Letter.77 Plaintiff filed this lawsuit on August 17, 2021, asserting the following claims

against Defendant: (1) Title VII race discrimination; (2) Title VII hostile work environment;

(3) constructive discharge; (4) violation of the Equal Pay Act; (5) intentional and/or

negligent infliction of emotional distress under Louisiana state law; and (6) negligent

hiring, training and retention under Louisiana state law. Defendant moves for summary

judgment on all claims.

III. LAW & ANALYSIS

A. Summary Judgment

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

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

as a matter of law.78 This determination is made “in the light most favorable to the

opposing party.”79 A party moving for summary judgment “‘must “demonstrate the

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

nonmovant’s case.’”80 If the moving party satisfies its burden, “the non-moving party must

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

74 Id. at ¶ 32.

75 Plaintiff’s Affidavit at ¶¶ 16, 24, 34, 38, 40,

76 Rec. Doc. 30-12.

77 Rec. Doc. 30-8.

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

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

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

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

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

323-25 (1986).

existence of a genuine issue concerning every essential component of its case.’”81

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

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

only a scintilla of evidence.’”82

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

reasonable jury could return a verdict for the nonmoving party.’”83 All reasonable factual

inferences are drawn in favor of the nonmoving party.84 However, “[t]he Court has no duty

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

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

how this evidence supports his claim.”85 “Conclusory allegations unsupported by specific

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

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

support the complaint.”’”86

In the present case, Plaintiff argues that “it is pivotal to underscore the fundamental

legal principle that the defendants bear the burden of proof.”87 In Title VII discrimination

cases, while the Defendant must demonstrate the absence of a genuine issue of material

fact, “[i]n response to a motion for summary judgment, it is therefore incumbent upon the

non-moving party to present evidence – not just conjecture and speculation – that the

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

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

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

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

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

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

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

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

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

87 Rec. Doc. 46, p. 4.

defendant discriminated against the plaintiff on the basis of the protected characteristic in

question.”88 Additionally, citing to no supporting authority, Plaintiff baldly claims that

Defendant cannot carry its summary judgment burden because it failed to depose the

Plaintiff.89 However, there is no requirement that a movant depose the opposing party to

succeed under Rule 56, and it is well settled that sworn testimony in the form of an

affidavit or declaration is competent summary judgment evidence.

B. Title VII Hostile Work Environment

A race-based or sex-based harassment/hostile-work environment claim requires

that Plaintiff establish a prima facie case that (1) she is a member of a protected class;

(2) she was subject to unwelcome harassment; (3) the harassment was based upon her

race and/or sex; (4) the harassment affected a term or condition of her employment; and

(4) Defendant knew or should have known about the harassment and failed to take prompt

remedial action.90 For harassment to affect a term, condition, or privilege of employment,

it must be “sufficiently severe or pervasive to alter the conditions of [the victim's]

employment and create an abusive working environment.”91 To meet this standard, the

conduct complained of must be “both objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that the victim in fact did

perceive to be so.”92

88 Hardison v. Skinner, 489 F.Supp.3d 536, 543 (W.D. La. 2020)(citing Grimes v. Texas Dept. Of Mental

Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996)).

89 Rec. Doc. 46, p. 4.

90 West v. City of Houston, 960 F.3d 736, 741 (5th Cir. 2020) (per curiam) (citation omitted).

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

v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).

92 Aryain v. Wal–Mart Stores of Tex. LP, 534 F.3d 473, 479 (5th Cir.2008); see also Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21–22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

“Critically, Title VII is not a ‘general civility code.’”93 Under federal law, the mere

utterance of ethnic or racial epithets that engender offensive feelings in an employee,

offhand comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the terms, conditions, and privileges of employment.94 The

Court looks to the totality of the circumstances, considering “(1) the frequency of the

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

humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with

an employee's work performance.”95 Generally, poor performance evaluations, “write-

ups,” and work criticism, even if unjust and unfair and in front of peers, do not rise to the

level of a hostile work environment.96

Plaintiff attests that she was subjected to a racially and sexually hostile work

environment based on the following:

a. Being subjected to a stricter level of scrutiny than my similarly situated

white coworkers;

b. Experiencing racially charged statements made by other employees in

addition to the managers and owners of Eye Care Surgery Center, including

comments that “blacks should go back to Africa” and a comment from a

white coworker that her daughter went to school and told her teacher she

was a “real nigger rockstar;”

c. Finding a chair with “KKK NIGGER” written upon it in the break room next

to my office;

93 Heath v. Southern University System Foundation, 2017 WL 2972909 at *5 (quoting Faragher, 524 U.S.

at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)) (explaining that the

elements of a hostile work environment claim “are sufficiently demanding to ensure that Title VII does not

become a ‘general civility code.’”); Clark v. S. Broward Hosp. Dist., 601 Fed.Appx. 886, 900 (11th Cir. 2015)

(quoting Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1234 (11th Cir. 2006)) (“Title VII

is not a ‘general civility code’ and does not make ‘ordinary [workplace] tribulations’ actionable, so not all

objectionable language and conduct will support a Title VII harassment claim.”) (alteration in original );

Reine v. Honeywell Int'l Inc., 362 Fed.Appx. 395, 397–98 (5th Cir. 2010) (“This high standard for judging

hostility is specifically intended to prevent Title VII from becoming a ‘general civility code’ for the

workplace.”)).

94 See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lauderdale v. Tex. Dep't of Criminal

Justice, Inst. Div., 512 F.3d 157, 163 (5th Cir. 2007).

95 Rodrigue v. PTS Management Group, LLC, 550 F.Supp.3d 376, 397 (W.D. La. 2021)(quoting West v.

City of Houston, Texas, 960 F.3d 736, 742 (5th Cir. 2020); Harvill, 433 F.3d at 435).

96 See Kang v. Bd. of Supervisors, 75 Fed.Appx. 974, 975–76, 977 (5th Cir.2003).

d. Discovering that KKK had been written on my printer’s toner;

e. Enduring racially and sexually explicit jokes by my direct supervisor

Robert Johnson.97

Defendant contends Plaintiff has failed to offer summary judgment evidence to

substantiate several of these claims, and in any event, taken as true, Plaintiff’s allegations

do not rise to the level of severity or pervasiveness required to establish a Title VII hostile

work environment claim.

Considering all evidence presented in the light most favorable to the Plaintiff, the

Court finds that Plaintiff has failed to establish a prima facie case of hostile work

environment based on race or sex because she has failed to present competent summary

judgment evidence to substantiate her claims, and she has similarly failed to demonstrate

that the alleged conduct was so severe or pervasive that it affected a term, condition, or

privilege of her employment.

Plaintiff attests she was subjected to a stricter level of scrutiny than her similarly

situated white coworkers;98 however, she does not identify these white co-workers or

present evidence to establish that they are similarly situated under the law. She likewise

fails to articulate specifically how she was treated differently than others.

Plaintiff attests she “experienced” racially charged statements by other employees

and the managers and owners of Eye Care Surgery Center, including comments that

“blacks should go back to Africa” and a comment by a White coworker that her daughter

told her schoolteacher that she was a “real [n*****] rockstar.” With the exception of the

two specified statements, Plaintiff’s attestation is broad and vague. Plaintiff fails to

97 Rec. Doc. 46-1, Plaintiff’s Affidavit, ¶ 18.

98 The Court will address the law regarding similarly situated comparators more thoroughly when it

considers Plaintiff’s Title VII race/sex discrimination claim.

specifically identify each purported harasser, and she fails to set forth the specific nature

of the other comments, the frequency of the comments, and whether these comments

were directed at, or witnessed by, Plaintiff herself. There is no evidence before the Court

to suggest that these comments were more than offhand utterances or that they were

personally threatening or humiliating to Plaintiff.

Regarding the “rockstar” comment, Defendant has presented competent summary

judgment evidence that Plaintiff was not a direct participant in this conversation.99 As

discussed above, Porche explained that the conversation was friendly, the “n” word was

not actually stated by the White co-worker, and the three participants in the conversation

laughed about the story. Porche attested she thought the story was funny and was not

offended by it. Plaintiff “disputes” Porche’s attestations in her Affidavit, but Plaintiff is not

competent to testify as to Porche’s state of mind or what Porche did or did not directly

witness, feel, or experience. While Plaintiff was clearly subjectively offended, the

summary judgment evidence belies Plaintiff’s argument that such a comment is

objectively offensive. A plaintiff's subjective beliefs are not sufficient to create an issue of

fact.100

Defendant presented competent summary judgment evidence that the break room

chair was discovered and reported by another employee and not the Plaintiff; that the

chair was immediately removed and the incident was investigated; that the investigation

yielded no actionable information; and that access to the break room extended beyond

employees to family members and outside contractors such that Defendant could not be

99 Even if Plaintiff was directly involved in this conversation, such a comment does not rise to the level of

threatening or humiliating as a matter of law.

100 See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153 (5th Cir. 1995).

certain that the inscription was made by an employee.101 Plaintiff “denied” these facts but

failed to direct the Court to any countervailing evidence to demonstrate a genuine dispute

of these facts. Where Plaintiff generally cited her Affidavit, Plaintiff did not attest that she

reported the chair incident, and she provided no substantiated information whatsoever

regarding Defendant’s investigation into the incident or who had access to the break

room. Simply attesting “I dispute this statement” does not create a genuine issue of

material fact that survives summary judgment.

Finally, Plaintiff attests that she was subjected to racially and sexually explicit jokes

by her direct supervisor Robert Johnson. Again, Plaintiff does not describe these jokes

or provide the Court with any context or rate of frequency to determine whether this

conduct would rise to the level of severe or pervasive such that it affected a term,

condition, or privilege of employment. Vague allegations do not constitute specific

evidence required to overcome summary judgment.

Plaintiff attests that this workplace harassment affected her “psychological

wellbeing, so much so that [she] had to get a mental health counselor.”102 However, as

noted by other courts within the Fifth Circuit, that a plaintiff “felt compelled to take leave

and consult a doctor due to work-related stress … is not evidence of the objective

offensiveness of the work environment.”103

Not only is there a dearth of evidence to support Plaintiff’s hostile work

environment claim, Plaintiff fails to offer any jurisprudence that would support her

101 Hayward-Cash Decl., ¶ 20.

102 Rec. Doc. 46-1, ¶ 23.

103 Lister v. National Oilwell Varco, L.P., 2013 WL 5515196, *28 (citing Wilkinson v. Potter, 236 F. App'x

892, 893 (5th Cir.2007) (“The harassment must also be both objectively offensive, meaning that a

reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim

perceived it to be so.” (internal quotation marks and citation omitted)).

arguments on this claim, likely because a wealth of jurisprudence undermines Plaintiff’s

argument. As cited by the Eastern District of Louisiana in Hardy v. Federal Express Corp.,

numerous courts have examined similar conduct as alleged here and found it insufficient

to establish a hostile work environment:

[I]n Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir. 1982), the Fifth

Circuit did not find a hostile work environment where plaintiff was directly

called racial epithets by coworkers. Similarly, in Grant v. UOP, Inc., 972 F.

Supp. 1042 (W.D. La. 1996), aff'd, 122 F.3d 1066 (5th Cir. 1997), the court

held that five separate utterances of the word ‘nigger’ directly to the plaintiff

were insufficient to establish a hostile work environment claim. See also,

Smith v. Beverly Health and Rehabilitation Serv., Inc., 978 F. Supp. 1116

(N.D. Ga. 1997) (holding that a several utterances of racial epithets by a

supervisor were insufficient to support hostile work environment claim);

McCray v. DPC Indus., Inc., 942 F. Supp. 288 (E.D. Tex. 1996) (holding that

five uses of the terms “black Yankee” and “son,” two racial jokes, and the

use of the word “nigger” were insufficient to establish a hostile work

environment claim).104

Similarly, in Johnson v. TCB Constr. Co., the Fifth Circuit found there was

insufficient evidence to establish a racially hostile work environment where a supervisor's

comment that the plaintiff was just “like a damn n****r” was isolated; there was no

evidence of the objective effect of that comment on the plaintiffs work performance; and

although there was evidence that the supervisor frequently used the term “n****r,” those

other comments were not uttered in the plaintiffs presence, and there was no evidence

that they affected the plaintiff's job.105

Plaintiff attests that “all of the other African American employees” of Defendant

“were offended and witnessed instances of harassment, retaliation, or discrimination”

during Plaintiff’s employment.106 The Fifth Circuit, however, has foreclosed this type of

104 No. 97-1620, 1998 WL 419716 at * 9 (E.D. La. July 21, 1998).

105 334 Fed. Appx. 666, 671 (5th Cir. 2009).

106 Rec. Doc. 46-1, ¶ 9.

evidence as competent summary judgment evidence. In Celestine v. Petroloeos de

Venezuela SA.,107 the plaintiff relied upon the racial harassment claims heard by others

to support his hostile work environment claim.108 The Fifth Circuit classified the racial

harassment heard by other employees as “hearsay; things that other employees told

him[.]”109 The Fifth Circuit upheld the district court’s dismissal of the plaintiff’s hostile work

environment claims in Celestine because, as the “[plaintiff] established no act adverse to

him [], he could not establish a hostile work environment claim.”110 Applying the standard

articulated in Celestine, it is clear that, to the extent Plaintiff relies on the on the allegedly

racist comments experienced by other African American employees, such reliance fails

to meet her hostile work environment prima facie burden.

Accordingly, Defendant is entitled to summary judgment on Plaintiff’s hostile work

environment claim.

C. Title VII Race Discrimination – Constructive Discharge

To prove race discrimination under Title VII, a plaintiff must establish that she is

(1) “a member of a protected class” (2) “was qualified for the position” (3) “was subjected

to an adverse employment action”; and (4) “other similarly situated persons were treated

more favorably.”111 If a plaintiff establishes a prima facie case of discrimination, the

burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the

adverse actions taken. 112 If the defendant satisfies this burden of production, the burden

shifts back to the plaintiff, who must “offer sufficient evidence to create a genuine issue

107 108 Fed. Appx. 180 (5th Cir. 2004).

108 Id. at 187-88.

109 Id. at 187.

110 Id. at 188.

111 Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005).

112 Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)

of material fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext

for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is

only one of the reasons for its conduct, and another motivating factor is the plaintiff’s

protected characteristic (mixed-motive[s] alternative).’”113 Prongs one and two are clearly

satisfied here; however, Plaintiff fails to demonstrate a genuine dispute of fact as to

whether she suffered an adverse employment action, and she fails to identify a similarly

situated comparator treated more favorably under nearly identical circumstances.

1. Adverse Employment Action – Constructive Discharge

An adverse employment action is one that affects a “term, condition, or privilege

of employment.”114 Until recently, Fifth Circuit precedent limited the scope of adverse

employment actions to “ultimate employment decisions such as hiring, granting leave,

discharging, promoting, or compensating.”115 In Hamilton v. Dallas County, the Fifth

Circuit, sitting en banc, rejected its “ultimate-employment-decision test” in favor of a less

restrictive standard.116 Under the Hamilton standard, “a Title VII plaintiff may recover

damages even for ‘discrimination in the terms, conditions, or privileges of employment’

that ‘did not involve a discharge,’ ‘loss of pay,’ or other ‘concrete effect on [his or her]

employment status.’”117

Under this framework, the Fifth Circuit has clarified that to satisfy the “adverse

employment action” requirement, “a plaintiff need only allege facts plausibly showing

113 Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); see also Vaughn v. Woodforest Bank,

665 F.3d 632, 637 (5th Cir. 2011) (citing same in the context of a Title VII race discrimination case).

114 Hamilton v. Dallas Cnty., No. 21-10133, 2023 WL 5316716, at *56 (5th Cir. Aug. 18, 2023)(en

banc)(quoting Hishon v. King & Spalding, 467 U.S. 69, 77 (1984) (internal quotation marks omitted)).

115 Id. at *3 (quoting Welsh v. Fort Bend Ind. Sch. Dist., 941 F.3d 818, 824 (5th Cir. 2019) (internal quotation

marks omitted)).

116 Id. at *4.

117 Id. (alteration in original) (quoting Landgraf v. USI Film Prod., 511 U.S. 244, 254 (1994)).

discrimination in hiring, firing, compensation, or in the ‘terms, conditions, or privileges’ of

his or her employment.”118 Although the criteria for an adverse employment action are

broad, the Fifth Circuit stated that Title VII “does not permit liability for de minimis

workplace trifles.”119

Plaintiff argues that she has demonstrated an adverse employment action because

she was constructively discharged when her working conditions became so intolerable,

she was compelled to resign. The Court notes that, despite Plaintiff pleading constructive

discharge as a separate cause of action, “under federal law, the constructive discharge

doctrine is an alternative way of proving an adverse employment action in Title VII and

other cases, but constructive discharge is not itself a cause of action. It is a means of

proving the element of an adverse employment action where the employee quits instead

of being fired.”120

Title VII proscribes an employer from discharging an employee “because of” his or

her “race, color, religion, sex, or national origin.”121 “In determining whether an employer's

actions constitute a constructive discharge,” courts consider “whether ‘working conditions

became so intolerable that a reasonable person in the employee's position would have

felt compelled to resign.’”122 An employee may be constructively discharged in several

ways, including by:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)

reassignment to menial or degrading work; (5) badgering, harassment, or

humiliation by the employer calculated to encourage the employee's

118 Id. at *6 (quoting 42 U.S.C. § 2000e-2(a)(1)) (citing Hishon, 467 U.S. at 77)).

119 Id. at *7 (citations omitted).

120 Wells v. City of Alexandria, No. 03-30750, 2004 WL 909735, at *3 (5th Cir. Apr. 29, 2004) (unpubl.).

121 42 U.S.C. § 2000e-2(a)(1).

122 Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 480 (5th Cir. 2008) (alterations omitted) (quoting Penn.

State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004)).

resignation; or (6) offers of early retirement that would make the employee

worse off whether the offer were accepted or not.123

Further, a constructive discharge claim “requires a greater degree of harassment than

that required by a hostile environment claim.”124 Discrimination or “[m]ere harassment,

alone, is insufficient; rather, the plaintiff must show ‘aggravating factors’ to justify

departure.”125

Plaintiff has only offered evidence regarding alleged harassment. The Court held

above that Plaintiff has failed to demonstrate a hostile work environment; therefore, her

claim that she was constructively discharged likewise fails as it carries an even higher

evidentiary burden. Because Plaintiff has not shown that she suffered an adverse

employment action, she has failed to carry her summary judgment burden on the race/sex

discrimination claim.

2. Similarly Situated Comparators

Plaintiff has also failed to identify a similarly situated comparator to satisfy the

fourth prong of a prima facie case of discrimination. The law is clear that, “[i]n the context

of a race discrimination claim, where the plaintiff alleges that employees who were not

members of the protected class received more [favorable treatment], the plaintiff must

come forward with specific evidence of comparators who were similarly situated.”126

Courts within the Fifth Circuit define “similarly situated” narrowly.127 In evaluating whether

123 Aryain, 534 F.3d at 481.

124 Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001).

125 Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 331 (5th Cir. 2004); see also Brown, 237 F.3d at

566 (“Discrimination, alone, without aggravating factors, is insufficient for a claim of constructive

discharge.”).

126 Corley v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt, 816 F.Supp.2d 297, 316 (M.D. La.

2011)(citing Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009))(emphasis added).

127 See Horton v. G4S Secure Solutions (USA), Inc., No. 16-544-SDD-EWD, 2018 WL 1997535 at *5 (M.D.

La Apr. 27, 2018)(citing

an alleged comparator is similarly situated,

“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[.]”128

“Employees with different supervisors, who work for different divisions of a

company ... generally will not be deemed similarly situated.” The Fifth Circuit

has further explained, that “employees who have different work

responsibilities ... are not similarly situated.”129

Plaintiff’s vague reference to “similarly situated white coworkers”130 cannot satisfy the

necessary showing. Defendant is entitled to summary judgment on Plaintiff’s Title VII

race/sex discrimination claim.

D. Title VII Race Discrimination – Failure to Promote

Plaintiff also appears to make a Title VII race/sex discrimination claim of failure to

promote. “To make a prima facie case of race or gender discrimination in the failure to

promote context, Plaintiff must show: ‘(1) that [she] is a member of the protected class;

(2) that [she] sought and was qualified for the position; (3) that [she] was rejected for the

position; and (4) that the employer continued to seek or promoted applicants with the

plaintiff's qualifications.’”131 Under controlling Fifth Circuit jurisprudence, Plaintiff must

show “that the application for the promotion was deterred by a known and consistently

enforced policy of discrimination.”132 Plaintiff fails to submit summary judgment evidence

for prongs two, three, and four.

Brown v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F.Supp.2d 581, 593 (S.D. Tex. 2012); see also Lopez

v. Kempthorne, 684 F. Supp. 2d 827, 856-57 (S.D. Tex. 2010)).

128 Id. (quoting Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012)(quoting Lee v. Kan. City

S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009))).

129 Id. (quoting Lee, 574 F.3d at 259 (citing Wyvill v. United Cos. Life Ins., 212 F.3d 296, 302 (5th Cir.

2000)).

130 Rec. Doc. 46-1, ¶ 18(a).

131 Smith v. Home Depot U.S.A., Inc., 102 F.Supp.3d 867, 876 (E.D. La. 2015)(quoting Davis v. Dallas Area

Rapid Transit, 383 F.3d 309, 317 (5th Cir.2004)).

132 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999).

Defendant contends Plaintiff cannot make a prima facie case for failure to promote

because she never applied for any open positions,133 and she has not presented any

evidence whatsoever that she was deterred from applying for a position by a “known and

consistently enforced policy.” Defendant has also presented unrefuted evidence that

Plaintiff lacked the skills necessary for the Billing Manager position she desired. Plaintiff

ostensibly attempts to dispute this fact by offering her resumé; however, Plaintiff’s resumé

does not show that she has medical billing coding experience and is proficient in the use

of (CPT) and (ICD-10), skills required for the position.134

Notwithstanding these failures, Plaintiff has likewise failed to demonstrate that

Defendant promoted applicants with Plaintiff’s qualifications. Plaintiff attests that a White

co-worker, Amanda Dukes (“Dukes”), was given a Billing Manager position although

Dukes was less qualified than Plaintiff.135 Plaintiff offers her own subjective belief that

Dukes was less qualified, but Plaintiff submits no evidence for the Court to compare and

contrast the qualifications of Dukes and Plaintiff. The only other employee identified in

this regard is Marcus Montgomery (“Montgomery”),136 who Plaintiff describes as a “white

male, who is not of a protected class,” that “was given a position in the Nursing

Department over all of the women who had been there for years.”137 But again, Plaintiff

fails to identify the actual position involved, whether she applied for this position, whether

she was qualified for this position, or any qualifications for the job that she held but

Montgomery was lacking. Indeed, from the context of the statement, it is unclear if Plaintiff

133 Hayward-Cash Decl., ¶¶ 26-27.

134 Id. at ¶¶ 28-30. Although Plaintiff never directly cites her resumé, it is attached as an exhibit to her

Opposition, Rec. Doc. 46-2, and the Court reviewed it in deciding this motion.

135 Rec. Doc. 46-1, ¶ 4.

136 Defendant contends Montgomery is a licensed and board registered nurse; however, it provides no

evidence in support of this fact. Rec. Doc. 30-1, p. 10.

137 Rec. Doc. 46-1, ¶ 11.

is even referencing herself as someone passed over for this position or if she rerefences

other women in general.

Plaintiff has failed to present summary judgment evidence to support a prima facie

case of disparate pay under the EPA; therefore, Defendant is entitled to summary

judgment on Plaintiff’s Title VII failure to promote claim.

E. Equal Pay Act (“EPA”)138

Plaintiff has asserted a claim for disparate pay under the EPA. The EPA prohibits

employers from discriminating “between employees on the basis of sex by paying wages

to employees in such establishment at a rate less than the rate at which he pays wages

to employees of the opposite sex in such establishment for equal work on jobs the

performance of which requires equal skill, effort, and responsibility, and which are

performed under similar working conditions.”139 To establish a prima facie case under the

EPA, Plaintiff must show: “(1) that her employer is subject to the Act; (2) that she

performed work in a position requiring equal skill, effort [,] and responsibility under similar

working conditions; and (3) that she was paid less than members of the opposite sex.”140

Plaintiff need not show that her job duties were identical to those of higher paid male

employees, only that the “skill, effort and responsibility” required in the performance of

the compared jobs are “substantially equal.”141 If Plaintiff makes out a prima facie case,

then the burden shifts to Defendant to demonstrate that the differential is justified under

one of the EPA's four enumerated exceptions: (1) a seniority system; (2) a merit system;

138 29 U.S.C. §§206, et seq.

139 29 U.S.C. § 206(d)(1).

140 Jones v. Flagship Int'l, 793 F.2d 714, 722-23 (5th Cir. 1986); see also Chance v. Rice Univ., 984 F.2d

151, 153 (5th Cir. 1993).

141 Wallace v. Bd. of Sup'rs for the Univ. of Louisiana Sys., Civil Action No. 14-657, 2016 WL 7116107,

(M.D. La. Dec. 6, 2016)(quoting Jones, 793 F.2d at 722-23 (citation omitted)).

(3) a system which measures earnings by quantity or quality of production; or (4) a

differential based upon any factors other than sex.142

There is absolutely no evidence before the Court to establish any of the

requirements of a prima facie case under the EPA. In her opposition, Plaintiff essentially

ignores these requirements, harkening back to her claims of harassment: “In spite of her

qualifications and performance, she suffered adverse employment decisions. These

actions were taken under circumstances that give rise to an inference of discrimination,

especially considering similarly situated individuals outside her protected class were

treated differently.”143 Plaintiff inexplicably references “experiences narrated by several

of its past and present employees” in support of her EPA claim;144 however, Plaintiff has

not presented a single statement from any witness other than herself. Because there is

no summary judgment evidence before the Court to support Plaintiff’s EPA claim,

Defendant is entitled to summary judgment on this claim.

F. Intentional/Negligent Infliction of Emotional Distress (“IIED/NIED”)

Plaintiff also asserts claims of intentional and/or negligent infliction of emotional

distress under Louisiana tort law. To maintain an action for IIED in Louisiana, Plaintiff

must establish that (1) Defendants’ conduct was extreme and outrageous; (2) Plaintiff

suffered severe emotional distress; and (3) Defendant desired to inflict severe emotional

distress or knew that severe emotional distress would be certain or substantially certain

to result from its conduct.145 The conduct requirement for IIED is difficult to meet; the

standard does not reach “mere insults, indignities, threats, annoyances, petty

142 King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 723 (5th Cir. 2011); 29 U.S.C. § 206(d).

143 Rec. Doc. 46, p. 7.

144 Id.

145 White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).

oppressions, or other trivialities;” rather, the behavior must “go beyond all possible

bounds of decency, [and must] be regarded as atrocious and utterly intolerable in a

civilized community.”146 “Unlike an action grounded in negligence, an action sounding in

intentional tort causes us to focus on whether the employer desired or knew that the harm

facing the plaintiff as a result of the complained-of conduct was substantially certain to

result from the conduct.”147

Louisiana law does not recognize the independent tort of negligent infliction of

emotional distress.148 Nonetheless, a plaintiff may recover for emotional distress inflicted

by the defendant's negligence unaccompanied by physical injury where the defendant's

negligent conduct is deemed to be outrageous.149 In order to recover, a plaintiff must

show the existence of the “especial likelihood of genuine and serious mental distress,

arising from the special circumstances, which serves as a guarantee that the claim is not

spurious.”150 “The most common thread of the special circumstances ... is that each of

those cases present facts proving that the defendant's act created a very strong and

obvious likelihood that the plaintiff would suffer genuine and severe mental distress.”151

Unless an employer knows of the employee's particular susceptibility to emotional

distress, the employer's conduct should be judged in the light of the effect such conduct

would ordinarily have on a person of ordinary sensibilities.152

146 Id.; see also Iturralde v. Shaw Grp., Inc., 512 Fed.Appx. 430, 435 (5th Cir.2013) (“Under Louisiana Civil

Code Article 2315, plaintiffs must meet a high burden of proof to prevail on an IIED claim.”).

147 Bourgeois v. Curry, 921 So.2d 1001, 1010 (La.App. 4 Cir. 12/14/05).

148 See Doe v. Smith, 913 So.2d 140, 142 (La. App. 4 Cir. 2005) (citing Moresi v. State through Dept. of

Wildlife and Fisheries, 567 So.2d 1081, 1096 (La. 1990)).

149 Lester v. Secretary of Veterans Affairs, 514 F.Supp.2d 866, 881 (W.D. La. 2007); see also Boquet v.

Belanger, No. CIV.A. 14-2228, 2015 WL 1650255, at *6 (E.D. La. Apr. 14, 2015).

150 Lester, 514 F.Supp.2d at 881.

151 Boquet, 2015 WL 1650255 at *6.

152 Covington v. Howard, 146 So.3d 933, 940 (La. App. 2 Cir. 8/13/14), writ denied, 160 So.3d 973 (La.

11/21/14).

Plaintiff has failed to demonstrate extreme and outrageous conduct for the same

reasons set forth by the Court in analyzing her hostile work environment claims. Focusing

almost entirely on the purported severity of her emotional distress, Plaintiff ignores the

requirement that she present evidence of Defendant’s intent to bring about her emotional

distress or its knowledge to a substantial certainty that its conduct would cause genuine

and severe emotional distress due to the Plaintiff’s particular susceptibility. The Court

cannot find in the allegations or the record any claim or evidence that Defendant desired

to inflict severe emotional distress or knew that severe emotional distress would be

certain or substantially certain to result from its conduct. Even assuming an issue of

material fact as to the other factors, summary judgment on Plaintiff’s IIED and NIED

claims is warranted based on this lack of evidence.

G. Vicarious Liability/Negligent Hiring, Training & Supervision

In her Complaint, Plaintiff alleges that Defendant is “vicariously liable” for the

acts and/or omissions of its employees who were within the course and

scope of their employment and that said are liable unto Plaintiff due to its

negligence attributed to but not limited to the following non-exclusive

particulars: failure to keep due and proper lookout over their employee’s

activities, negligent hiring of employees, negligent supervision of

employees, hiring reckless and careless individuals, negligent training of

employees, and any and all acts of negligence which may be proven at trial

in this matter.153

The Louisiana Supreme Court has recognized claims of negligent hiring, training,

and supervision as stand-alone causes of action distinct from the theory of vicarious

liability.154 However, Plaintiff does not mention a claim for negligent hiring, training, and

supervision in her Opposition; rather she addresses her vicarious liability claim only in the

153 Rec. Doc. 1, ¶ 39.

154 Roe v. Safety National Casualty Corp., No. , 2020 WL 3477071, *4 (W.D. La. June 25, 2020)(citing

e.g., Harris v. Pizza Hut of La., 455 So.2d 1364 (La. 1984); Roberts v. Benoit, 605 So.2d 1032 (La. 1991).

context of “the discriminatory behaviors, derogatory remarks, and harassment” committed

by employees of Defendant for which Defendant should be held liable.155 Accordingly,

any claim for negligent hiring, training, and supervision is dismissed with prejudice as

abandoned. Further, because the only other state law torts alleged, IIED and NIED, have

been dismissed, Plaintiff’s vicarious liability claim also fails.

IV. CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment156 by Defendant,

Eye Care Surgery Center, Inc. is GRANTED. Judgment shall be entered accordingly.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this 2_2_n_d day of _D_e_c_e_m__b_e_r______, 2023.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

155 Rec. Doc. 46, p. 11.

156 Rec. Doc. 30.