Gurst v. Dove

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

MITCHELL L GURST CASE NO. 1:18-CV-00282

VERSUS JUDGE DRELL

DEAN DOVE ET AL MAGISTRATE JUDGE PEREZ-MONTES

RULING

Before the court is Defendants’ motion for summary judgment (Doc. 42) and Plaintiffs

opposition (Doc. 44) thereto. For the reasons expressed herein, the motion will be GRANTED.

I. Relevant Facts

Plaintiff Mitchel L. Gurst (““Gurst”) was hired as a corrections officer for the Natchitoches

Parish Detention Center (““NPDC”) on August 1, 2001. Gurst continued in that capacity until

September 15, 2016 when he and three other NPDC employees were terminated! for their roles in

failing to thwart the escape of three NPDC inmates.

According to the NPDC Policy and Procedure Manual (Doc. 42-10): “The NPDC has a

system for physically counting Offenders. At least six (6) formal counts are conducted each

twenty-four (24) hour period.” (Id. at p.2). A memorandum from Captain Glenn Sers dated On

December 10, 2015, expands upon how the physical counts were to be conducted: Five general

“count times” occurred throughout the day and three “meal time” counts were to be conducted at

5:15 a.m., 11:00 a.m., and 5:15 p.m. (Doc. 42-11).

On August 27, 2016, three inmates escaped from the NPDC at approximately 10:00 a.m.,

but the escape was not noticed until 4:00 p.m. the following day. While Gurst was not on duty the

| Four other employees were suspended and/or demoted for their role in the inmates’ escape.

night of the escape, he was present the next day and worked a 12-hour shift. “During his 12-hour

August 28, 2016 shift, Gurst and another Corrections Officer, Cassius Shepherd (who was also

terminated) were in charge of feeding inmates housed in the NPDC’s B Dorm, from which the

three inmates had escaped the previous night.” (Doc. 42-3, p. 3). As explained in the affidavit of

Sheriff Victor E. Jones, “Gurst was charged with the responsibility of (1) visually observing each

inmate who received his own individual tray, and (2) checking that inmate off the ‘Offender roster’

printed from the Jail Information Management System. If, for any reason, an inmate did not appear

to receive his meal tray, Gurst was required to personally ascertain the reason for the inmate’s non-

appearance.” (Id.).

An internal investigation by NPDC supervisors under the command of then Assistant Chief

Henson (“Henson”) determined that Gurst and Shepherd allowed inmates to obtain trays for the

escaped inmates at both the 5:30 a.m. and 11:00 a.m. Gurst and Shepherd then prepared a Daily

Meal Report showing the escaped inmates received their meal and were physically present.

Accordingly, an additional five hours passed before the inmates were determined to be missing.

Because of their failure to conduct a proper meal time count, Gurst and Shepherd were terminated.

On or about November 23, 2016, Gurst filed an administrative charge of discrimination

with the Louisiana Commission on Human Rights (“EEOC”) alleging he was discriminated against

on the bases of race and age. (Doc. 42-7). Gurst received his Right to Sue notice on or about

December 4, 2017 and then filed suit against Dean Dove, Henson, Victor Jones, NPDC and

Natchitoches Parish Sheriff's Office (“NPSO”)* alleging wrongful termination, harassment,

discrimination based on age, race, gender and sex, failure to train, failure to pay leave and fringe

benefits, bad faith, intentional tort, continuing tort, and disparate treatment.

2 On March 6, 2019, both the NPDC and NPSO were dismissed as improperly named parties. (Docs. 26 and 27).

IL. Summary Judgment Standard

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

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

Fed.R.Civ.P, 56(a). A dispute of material fact is genuine if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. See Anders on v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). We consider “all evidence in the light most favorable to the party resisting

the motion.” Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 680 (5™ Cir.2011)

(internal citations omitted). It is important to note that the standard for summary judgment is two-

fold: (1) there is no genuine dispute as to any material fact, and (2) the movant is entitled to

judgment as a matter of law.

The movant has the burden of pointing to evidence proving there is no genuine dispute as

to any material fact, or the absence of evidence supporting the nonmoving party’s case. The burden

shifts to the nonmoving party to come forward with evidence which demonstrates the essential

elements of his claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The nonmoving

party must establish the existence of a genuine issue of material fact for trial by showing the

evidence, when viewed in the light most favorable to him, is sufficient to enable a reasonable jury

to render a verdict in his favor. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Duffy v.

Leading Edge Products, Inc., 44 F.3d 308, 312 (5 Cir.1995). A party whose claims are challenged

by a motion for summary judgment may not rest on the allegations of the complaint and must

articulate specific factual allegations which meet his burden of proof. Id. “Conclusory allegations

unsupported by concrete and particular facts will not prevent an award of summary judgment.”

Duffy, 44 F.2d at 312, citing Anderson v Liberty Lobby, 477 U.S. at 247.

Documents filed by pro se litigants must be construed liberally and held to a less stringent

standard than those filed by represented parties. See Haines v. Kerner, 404 U.S. 519, 520-21

(1972). However, “pro se parties must still comply with the rules of procedure and make

arguments capable of withstanding summary judgment.” Ogbodiegwu v. Wackenhut Corr. Corp.,

202 F.3d 265 □□ Cir. 1999) (per curiam) (unpublished table decision).

Il. Analysis

Title VII, §1981 and §1983

Gurst asserts claims for wrongful termination based on race, age, gender and sex

discrimination and harassment. Gurst states he brings his claim pursuant to 28 U.S.C. §1648 but

that statute provides for time limitations on commencing civil actions arising under Acts of

Congress. Accordingly, we will review these claims under Title VII, §1981, and §1983. The

summary judgment test for discrimination claims under §1981 and §1983 is the same as the test

for discrimination claims under Title VII. Pratt v. City of Houston, 247 F.3d 601, 605 n.1 (5%

Cir.2001).

A review of his administrative charge with the EEOC shows Gurst asserted only two

claims, one for discrimination based on race and one for discrimination based on age. (Doc. 42-

7). The Fifth Circuit “has long required plaintiffs to exhaust their administrative remedies before

bringing suit under Title VII.” Price v. Choctaw Glove & Safety Co, Inc., See also Dao v. Auchan

Hypermarket, 96 F.3d 787, 789 (5" Cir.1996); Taylor v. Books A Million, Inc, 296 F.3d 376, 378-

79 (5"" Cir.2002). While courts are to consider what “can reasonably be expected to grow out of

the charge of discrimination,” neither Gurst’s harassment claim nor his discrimination claims

based on gender or sex grow out of the administrative charge filed here. Pacheco v. Mineta, 448

F.3d 783, 789 (5" Cir.2006) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5"

Cir.1970).

Even if Gurst had exhausted his administrative remedies as to his claims for gender and

sex discrimination and harassment, his filings are devoid of any assertions which would

substantiate such claims. Accordingly, these claims lack merit and will be dismissed.

Gurst did exhaust administrative remedies regarding his claims for wrongful termination

based on race and age discrimination. Defendants assert Gurst cannot establish a prima facie case

of either race or age discrimination and, even if he could, he cannot establish by a preponderance

of the evidence that the reason for his termination was pretextual. Under the McDonnell Douglas

v. Green, 411 U.S. 792 (1973) burden shifting framework, the plaintiff must first establish a prima

facie case that creates the inference of discrimination. Id. at 802. To establish a race discrimination

claim, a plaintiff must show he: (1) was a member of a protected class; (2) was qualified for the

position; (3) was subject to an adverse employment action; and (4) was replaced by someone

outside the protected class, or in the case of disparate treatment, was treated less favorably than

other similarly situated employees. Bryan v. McKinsey& Co., 375 F.3d 358, 360 (5 Cir.2004).

If that proof is established, the burden shifts to the defendant to produce evidence establishing the

adverse employment action was taken for a legitimate, non-discriminatory reason. Id. Assuming

such a showing is made, the burden returns to the plaintiff to establish, by a preponderance of the

evidence either: (1) the defendant’s reason is not its true reason, but is a pretext for intentional —

discrimination, or (2) while the reason may be true it is but one of the reasons for his/her conduct,

another of which is discrimination. Id. at 804-05; Reeves v. Anderson, 530 U.S. 133 (2000);

Machinchick v. PB Power, Inc., 398 F.3d 345, 352 (5 Cir.2005), Keelan v. Majesco Software,

Inc., 407 F.3d 332, 341 (5™ Cir.2005). This second showing, known as the “mixed-motive

framework”, is not part of the traditional McDonnell-Douglas framework but is employed by the

courts in this circuit in an identical manner.

It is undisputed that Gurst was a member of a protected class, was qualified for the job, and

suffered an adverse employment action by his employer. What is disputed is whether Gurst was

either replaced by someone outside of his protected class or treated less favorably than similarly

situated employees outside of the protected group under nearly identical circumstances. See

Grimes v. Texas Dept. of Mental Health, 102 F.3d 137, 140 (5 Cir.1996); Okoye v. University of

Texas Houston Health Science Center, 245 F.3d 507, 512-13 (5 Cir.2001). Defendants argue

Gurst was not replaced by someone outside his protected class nor was he treated less favorably

than other similarly situated employees. In support, they note that following the termination of

Gurst and the other three employees who failed to thwart the inmate escape, Sheriff Jones hired

three (3) African American male employees and four (4) Caucasian male employees. (Doc. 42-3).

Additionally, the three other employees who were terminated along with Gurst, were two black

males and one white male. (Id.). Gurst provides nothing to contradict Defendants’ account. Thus,

he fails to establish a prima facie case of race discrimination.

Even if he had established a prima facie case, Gurst cannot establish the articulated reason

for his termination was a pretext for race discrimination. The record clearly establishes Gurst was

terminated for a serious failure to follow NPDC’s policies and procedures regarding physical

inmate counts. Defendants do not contend Gurst was responsible for the inmates’ escape, but they

do hold him responsible for failing to determine at both 5:30 a.m. and 11:00 a.m. that the escaped

inmates were not present. Gurst fails to establish via argument or evidence anything to the

contrary. We cannot imagine a more legitimate reason for his termination than failure to an inmate

count in such circumstances. Accordingly, his race discrimination claim will be dismissed.

Gurst also fails to establish a prima facie case for age discrimination. The Age

Discrimination in Employment Act (“ADEA”) requires a plaintiff to show that his age was the

“but-for” cause of his termination. In this context, “but-for” means that “age was the ‘reason’ that

the employer decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (citing

Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (“Whatever the employer’s decision making

process, a disparate treatment claim cannot succeed unless the employee’s protected trait actually

played a role in that process and had a determinative influence on the outcome.”)).

Proving age was a “motivating factor” is not enough. Gross, 507 U.S. at 180; McMichael

yv. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447 (5" Cir.2019); Moss v. BMC

Software, Inc., 610 F.3d 917, 928 (5 Cir.2010). A plaintiff can establish age was the “but-for”

cause with direct or indirect evidence. Where, as here, there is not direct evidence of age

discrimination, the courts use the burden shifting framework from McDonnell Douglas as

explained supra.

Gurst must establish his prima facie case by establishing “(1) he was discharged; 2) he was

qualified for the position; (3) he was within the protected class at the time of discharge, and (4)

‘evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the

employer intended to discriminate in reaching the decision at issue.’” Nichols v. Loral Vought

Sys. Corp., 81 F.3d 38, 41 Cir.1996) (quoting Amburgey v. Cohart Refactories Corp., Inc.,

936 F.2d 805, 812 (5 Cir.1991)). Again, it is the last factor that Gurst cannot establish. He has

presented only conclusory statements he was discriminated against because of his age. Such is

insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 □□□

Cir.1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5" Cir.1994).

Even if Gurst could have established the final element of a prima facie case for age

discrimination, he could not establish pretext for the same reasons mentioned above. There is

simply no statements nor evidence in opposition to this motion that undermines the Defendants’

assertions that he was terminated for cause - because he failed to follow policies and procedures

for conducting the physical inmate count at the breakfast and lunch mealtimes.

Reinstatement pursuant to the Americans with Disabilities Act

Gurst additionally requests this court to mandate reinstatement pursuant to the Americans

with Disabilities Act (“‘ADA”). 42 U.S.C. §12101, et seg. “A plaintiff asserting a claim against

his employer under the ADA must exhaust his administrative remedies before filing suit against

his employer in federal court. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5 Cir.1996).

“The ADA incorporates by reference the procedures for exhaustion applicable to claims under

Title VII.” Williamson v. American Nat. Ins. Co., 695 F.Supp2d 431, 444 (S.D. Tex.2010)

(citation omitted). In the Title VII context, this court has recognized that the liberal standards for

construing EEOC charges and pro se complaints must be balanced against the fact that Title VII

contemplates no issue will be the subject of a civil action until the EEOC has first had the

opportunity to attempt to obtain voluntary compliance. Pacheco, 448 F.3d at 789.

Gurst did not complain of disability discrimination in his EEOC complaint either

specifically or in a way that would cause this court to believe a claim under the ADA could

“reasonably be expected to grow out of the charge of discrimination.” Sanchez, 431 F.2d at 465.

In fact, there are no statements by Gurst in either his complaint, his EEOC charge, or the opposition

to the motion for summary judgment that identify any disability. Accordingly, the court cannot

even assess whether he is a qualified individual within the meaning of the ADA, much less whether

he was discriminated against because of that supposed disability. See Melton v. Dallas Area Rapid □

Transit, 391 F.3d 669, 971-72 (5" Cir.2004). Accordingly, the claim lacks merit and will be

dismissed.

Disparate Impact .

Gurst sets forth a claim for “disparate treatment” based on race and age. The Defendants

have interpreted the claim as one for disparate impact despite the fact that no employment policy

has been cited by Gurst as having been violated.

In Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), the United States Supreme Court

explained,

This Court has consistently recognized a distinction between claims of

discrimination based on disparate treatment and claims of discrimination based on

disparate impact. The Court has said that “‘[d]isparate treatment’ ...is the most

easily understood type of discrimination. The employer simply treats some people

less favorably than others because of their race, color, religion, sex, or [other

protected characteristic].” Liability in a disparate treatment case “depends on

whether the protected trait...actually motivated the employer’s decision.” By

contrast, disparate-impact claims “involve employment practices that are facially

neutral in their treatment of different groups but that in fact fall more harshly on

one group than another and cannot be justified by business necessity.” Under a

disparate-impact theory of discrimination, “a facially neutral employment practice

may be deemed [illegally discriminatory] without evidence of the employer’s

subjective intent to discriminate that is required in a ‘disparate-treatment’ case.”

Id. at 52-53 (internal citations omitted).

We have already discussed how neither age nor gender actually motivated the Defendants’

decision to terminate Gurst. Accordingly, a claim for disparate treatment (if that is what this is)

fails. The same is true as to any alleged claim for disparate impact as Gurst fails to assert any

allegations that a NPDC or NPSO employment practice or policy was aimed at impacting either

African Americans or those over people over the age of forty (40).

14 Amendment Due Process Violations

In his continuing shotgun approach, Gurst asserts the Defendants engaged in conduct that

constitutes “due process violations under [the] Amendment” with respect to his wrongful

termination. Gurst cannot establish a claim for substantive nor procedural due process as he has

no property interest or right to employment. See Moulton v. City of Beaumont, 991 F.2d 227, 230

Cir.1993); Gives v. City of Eunice, 612 F.Supp2d 522, 545 (W.D. La. 2007). Whether one

has a property interest in his job is determined by state law. Bishop v. Wood, 426 U.S. 341, 347

(1976). Under Louisiana law, which is applicable in this case, a person employed for an indefinite

period is an employee at will. Gilbert v. Tulane University, 909 F.2d 124, 125 (5 Cir.1990).

Gurst has not shown that he was employed under a contract and Defendants assert his employment

was at will. Accordingly, we find that Gurst was an at will employee and as such, he did not enjoy

a property interest or right in his employment. See Cabrol v. Town of Youngsville, 106 F.3d 101,

106 (5" Cir.1996) (“Absent a contractual agreement for employment for a specified term or a

legislative regulatory restraint on a public entity’s termination authority, Louisiana law does not

establish a right to continued employment”). There is no Due Process violation here.

Equal Pay Act of 1963

Gurst’s complaint mentioned “violations of the equal pay act of 1963” without any further

explanation. “To state a prima facie case for wage discrimination under the [Equal Pay Act], a

plaintiff must show that the employer pays different wages to men and women, the employees

perform ‘equal work on jobs the performance of which requires equal skill, effort, and

responsibility,’ and the employees perform their jobs ‘under similar working conditions.””. Strong

v. rambling State University, 159 F.Supp3d. 697, 710 (W.D. La. 2015) (quoting Thibodeaux-

Woody v. Houston Comm. Coll., 593 Fed.Appx. 280, 283 (5 Cir.2014) (citing 29 U.S.C.

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§206(d)(1)); Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). As stated, no such

allegations in the complaint and none are asserted in an opposition to summary judgment. Thus,

no prima facie showing has been made and the claim will be dismissed.

Failure to Train

Gurst alleges liability also because he says NPDC failed to provide him proper training for

“inmate escape prevention;” “monitoring detention of inmates in tier housing populations of more

than 35 inmates;” and “basic electronic door locking testing for malfunction of equipment.” There

is no cognizable claim here for failure to train under §1983 as there is no deprivation, alleged or

real, of Gurst’s “rights, privileges or immunities secured by the Constitution and laws.” 42 U.S.C.

§1983. We also fail to find any other legally cognizable claim for failure to train as there is no

correlation between the allegations and the real basis for Gurst’s termination- his own gross

negligence.

Punitive Damages

Punitive damages are claimed but are not available in this case. First, Gurst has not and

cannot establish a prima facie case of discrimination. Second, he has not alleged, much less shown.

that the Defendants acted “with malice or with reckless indifference to the federally protected

rights of an aggrieved individual.” 42 U.S.C. §1981a(b)(1).

State Law Claims

“The district courts may decline to exercise supplemental jurisdiction over a claim ...if the

district court has dismissed all claims over which it has original jurisdiction.” 28 U.S. §1367(c)(3).

As we have found a basis under which to dismiss all of Gurst’s federal claims, we decline to

exercise jurisdiction over any state law claims remaining including his claims for unpaid wages,

wrongful termination, violation of the Police Officer’s Bill of Rights pursuant to La. R.S. 40:253,

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bad faith, intentional tort, and continuing tort. The state law claims will be dismissed without

prejudice so Gurst may pursue any such claims in state court should he decide to do so.

IV. Conclusion

The essence of this ruling is that these unsubstantiated claims border on the frivolous at

every turn. He failed to do his job and was fired. That is all this case is about. Accordingly,

Defendants’ motion to dismiss Gurst’s claims will be granted. We will issue a judgment in

conformity with these findings.

_ gre M\

SIGNED this % day of 020, at Alexandria, Louisiana.

DEE D. DRELL, JUDGE

UNITED STATES DISTRICT COURT

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