Paulin

EASTERN DISTRICT OF LOUISIANA

DIRK PAULIN, CIVIL ACTION

Plaintiff

VERSUS NO. 22-4585

KRISTI NOEM, SECTION: “E” (1)

SECRETARY OF STATE OF

THE DEPARTMENT OF HOMELAND

SECURITY,

Defendant

ORDER AND REASONS

Before the Court is a motion for summary judgment filed by Defendant

Department of Homeland Security (“Defendant”).1 Plaintiff Dirk Paulin (“Plaintiff”) filed

an opposition to the motion.2 Defendant filed a reply.3 Defendant’s motion for summary

judgment is GRANTED.

FACTUAL BACKGROUND

This case arises out of an employment relationship between Plaintiff and

Department of Homeland Security, Federal Emergency Management Agency (“FEMA” or

“Defendant”).4 In 2021, Plaintiff applied, but was not selected, for ten positions at

FEMA.5 Plaintiff alleges Defendant did not promote him in retaliation for four instances

of Equal Employment Opportunity (“EEO”) activity.6 Defendant responds it did not

promote Plaintiff due to his lack of qualifications for the positions.7 Plaintiff initiated this

1 R. Doc. 87.

2 R. Doc. 94.

3 R. Doc. 98.

4 R. Doc. 1 at p. 3. ¶ 9.

5 R. Doc. 94 at pp. 6-7.

environment under Title VII of the Civil Rights Act of 1964.8

The following facts are undisputed. Plaintiff was hired by FEMA in 2006.9 From

2009 to 2017, while employed with FEMA, Plaintiff filed four EEO complaints. On

November 30, 2009 Plaintiff filed an EEO complaint in case HS-10-FEMA-008.10 On May

5, 2012, Plaintiff filed an EEO complaint in case HS-FEMA-21886-2012.11 On February

23, 2013, Plaintiff filed a complaint in case HS- FEMA-00781-2013.12 On November 29,

2017, Plaintiff filed an EEO complaint in case HS-FEMA-00308-2018.13

From 2019 to 2021, Plaintiff applied for:

 two positions in the FEMA Chicago office:

1. Supervisory Emergency Management Specialist (Recovery);14

2. Emergency Management Specialist (Recovery);15

 two positions in the Denton, Texas office:

3. Supervisory Emergency Management Specialist (Recovery);16

4. Emergency Management Specialist (Recovery);17

 two positions in the New York City office:

5. Supervisory Emergency Management Specialist (Recovery);18

6. Emergency Management Specialist (Recovery);19

 two positions in the Atlanta office:

8 R. Doc. 1.

9 R. Doc. 87-2 ¶ 1; R. Doc. 109 ¶ 1.

10 R. Doc. 67-2 at p. 3.

11 Id.

12 Id

13 Id.

14 R. Doc. 87-2 ¶ 11; R. Doc. 109 ¶ 11.

15 R. Doc. 87-2 ¶ 12; R. Doc. 109 ¶ 12.

16 R. Doc. 87-2 ¶ 11; R. Doc. 109 ¶ 11.

17 R. Doc. 87-2 ¶ 12; R. Doc. 109 ¶ 12.

8. Emergency Management Specialist (Recovery);21

 and two positions with unspecified locations:

9. EMS (PA Group Supervisor) position in the Public Assistance

Division (PAD), Field Support Branch, Cadre Management

Support;22

10. VA-FEMA-19-CLM-2939333-CORE, EMS (RECOVERY).23

Plaintiff was interviewed for only one of these positions, Supervisory Emergency

Management Specialist (Recovery) in Denton, Texas.24 Plaintiff was not selected for any

of the ten positions.

On July 9, 2021, Plaintiff filed an EEO complaint, claiming Defendant did not

select him for any of these ten positions in retaliation for his four instances of prior EEO

activity from 2009 to 2017.25 Plaintiff further claims that Defendant created a hostile work

environment through “denial of promotions and constant retaliation.”26

LEGAL STANDARD

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

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

of law.”27 “An issue is material if its resolution could affect the outcome of the action.”28

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

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

20 R. Doc. 87-2 ¶ 11; R. Doc. 109 ¶ 11.

21 R. Doc. 87-2 ¶ 12; R. Doc. 109 ¶ 12.

22 R. Doc. 87-2 ¶ 13; R. Doc. 109 ¶ 13.

23 R. Doc. 87-2 ¶ 48.

24 R. Doc. 87-2 ¶ 15; R. Doc. 109 ¶ 15.

25 R. Doc. 1 at ¶ 21.

26 Id. at ¶ 25.

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

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

party, thus entitling the moving party to judgment as a matter of law.31

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

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

‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”32 If the

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

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

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

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

fact does indeed exist.33

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

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

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

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

establish an essential element of the nonmovant’s claim.34 When proceeding under the

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

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

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

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

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

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

33 Celotex, 477 U.S. at 322-24.

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

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

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

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

element); Fano v. O’Neill, 806 F.2d 1262, 1266 (5th Cir. 1987) (citing Justice Brennan’s dissent in Celotex,

and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims on

summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE

AND PROCEDURE § 2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority and

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

moving party is entitled to summary judgment as a matter of law.35 When, however, the

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

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

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

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

the moving party.”36 Under either scenario, the burden then shifts back to the movant to

demonstrate the inadequacy of the evidence relied upon by the nonmovant.37 If the

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

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

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

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

discovery is necessary as provided in Rule 56(f).”38 “Summary judgment should be

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

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

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

trial.”39

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

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

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

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

Inc., 477 U.S. 242, 249-50 (1986).

36 Celotex, 477 U.S. at 332-33.

37 Id.

of evidence to support a party’s opposition to summary judgment.’”40

LAW AND ANALYSIS

Defendant moves for summary judgment on both Plaintiff’s retaliation claim

under Title VII and his hostile work environment claim under Title VII. The Court will

first analyze Plaintiff’s claims of retaliation for each of the positions for which Plaintiff

was not selected. Next, the Court will address Plaintiff’s hostile work environment claim.

I. Defendant is Entitled to Summary Judgment on Plaintiff’s Retaliation

Claim Under Title VII.

At the summary judgment stage, courts apply the McDonnell Douglas burden

shifting framework when analyzing claims of retaliation based on circumstantial

evidence.41 A plaintiff may use either direct or circumstantial evidence to prove a case of

retaliation under Title VII. If a plaintiff relies on circumstantial evidence, the McDonnell

Douglass burden shifting framework applies.42 “Direct evidence is evidence which, if

believed, proves the fact [of retaliation] without inference or presumption.”43 If a plaintiff

presents direct evidence, the McDonnell Douglas test does not apply.44 More often, a

plaintiff relies on circumstantial evidence, which requires the court to apply the

McDonnell Douglas burden-shifting analysis.45 As Plaintiff in this case relies on

circumstantial evidence, the court will analyze these claims under McDonnell Douglass.

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

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

F.2d 909, 915-16 & n.7 (5th Cir. 1992)).

41 See Cardiel v. Apache Corp., 559 Fed.Appx. 284, 288 (5th Cir. 2014) (applying McDonnell Douglas

analysis to determine motion for summary judgment).

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

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

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

facie case of retaliation.46 “To establish a prima facie case of retaliation, a plaintiff must

show that (1) [he] participated in an activity protected under the statute; (2) [his]

employer took an adverse employment action against [him]; and (3) a causal connection

exists between the protected activity and the adverse action.”47 To demonstrate a causal

connection at the summary judgment stage, the Fifth Circuit has held that although the

burden is not onerous, “the plaintiff must produce at least some evidence that the

decisionmakers had knowledge of the protected activity.”48 “The proffered evidence must

be sufficient to permit a reasonable factfinder to conclude that the decisionmaker had

knowledge of the protected activity.”49

If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the

defendant to produce a legitimate, non-retaliatory reason for its employment decision.

The employer must merely articulate a legitimate, non-retaliatory reason for its

employment action.50 “The employer’s burden is only one of production, not persuasion,

and involves no credibility assessment.”51 Once the defendant offers non-retaliatory

reasons for its adverse employment action, the burden shifts back to the plaintiff, who

must produce evidence demonstrating that defendant’s proffered non-retaliatory reasons

amount to pretext.52 At summary judgment, to demonstrate pretext on a Title VII

retaliation claim, the plaintiff “must show a conflict in substantial evidence” on the

46 Lemaire v. Louisiana, 480 F.3d 383, 388 (5th Cir. 2007). (applying McDonnell Douglas test).

47 Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013).

48 Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 & n.6 (5th Cir. 2003); see also Chaney v. New

Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999); Davis v. Dallas Area Rapid Transit,

383 F.3d 309, 320 (5th Cir. 2004).

49 Amie v. El Paso Indep. Sch. Dist., 253 Fed.App’x 447, 454-55 (5th Cir. 2007).

50 Id.

activity.53

A. Defendant is Entitled to Summary Judgment on Plaintiff’s

Retaliation Claim Under Title VII for the Texas, Atlanta, New

York, and PA Group Supervisor Positions.

1. Plaintiff has Failed to Make a Prima Facie Showing of Title

VII Retaliation for Non-Selection for the Texas, Atlanta,

New York, and PA Group Supervisor Positions.

Plaintiff argues Defendant retaliated against him by not selecting him for two

positions in the Denton, Texas office:

- Supervisory Emergency Management Specialist (Recovery);54

- Emergency Management Specialist (Recovery).55

two positions in the New York City office:

- Supervisory Emergency Management Specialist (Recovery);56

- Emergency Management Specialist (Recovery);57

two positions in the Atlanta office:

- Supervisory Emergency Management Specialist (Recovery);58

- Emergency Management Specialist (Recovery);59

and one position with an unspecified location:

53 Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013)).

54 R. Doc. 87-2 ¶ 11; R. Doc. 109 ¶ 11.

55 R. Doc. 87-2 ¶ 12; R. Doc. 109 ¶ 12.

56 R. Doc. 87-2 ¶ 11; R. Doc. 109 ¶ 11.

57 R. Doc. 87-2 ¶ 12; R. Doc. 109 ¶ 12.

(PAD), Field Support Branch, Cadre Management Support.60

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

employee because he engages in protected activity.61 “To establish a prima facie case of

retaliation, a plaintiff must show that (1) [he] participated in an activity protected under

the statute; (2) [his] employer took an adverse employment action against [him]; and (3)

a causal connection exists between the protected activity and the adverse action.”62

Defendant concedes that Plaintiff participated in protected activity by filing EEO

complaints and that an adverse employment action occurred.63 Defendant argues it is an

undisputed fact that Plaintiff has not satisfied element three of a prima facie case of

retaliation, as Plaintiff produces no evidence to demonstrate a causal connection between

the protected activity and the adverse action.64 In demonstrating a causal connection at

the summary judgment stage, the Fifth Circuit has held that although the burden is not

onerous, “the plaintiff must produce at least some evidence that the decisionmakers had

knowledge of the protected activity.”65 “The proffered evidence must be sufficient to

permit a reasonable factfinder to conclude that the decisionmaker had knowledge of the

protected activity.”66 Defendant argues Plaintiff has not produced evidence sufficient to

permit a reasonable finder of fact to conclude that any of the individuals involved in hiring

60 R. Doc. 87-2 ¶ 13; R. Doc. 109 ¶ 13.

61 Joseph v. Phillips 66, No. 13-5254, 2014 WL 5429455 at *3 (E.D. La. Oct. 24, 2014).

62 Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013).

63 R. Doc. 87-1 at p. 12.

64 Id.

65 Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 & n.6 (5th Cir. 2003); see also Chaney v. New

Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999); Davis v. Dallas Area Rapid Transit,

knowledge of his EEO activity.67

Defendant claims Traci Brasher was the selecting official for the positions in

Texas.68 Defendant also claims that Angella Costella, Kristin Buda, and William Melara

conducted Plaintiff’s interview for the Texas position, and that Donald Simko tallied

Plaintiff’s interview score.69 Defendant provides evidence that none of these individuals

had knowledge of Plaintiff’s EEO activity.70 Defendant cites to an affidavit from Brasher

stating she was the selecting official for the Texas positions and she had no knowledge of

Plaintiff’s EEO activity.71 Defendant also cites to affidavits from each of the interview

panel members and Donald Simko wherein they each explain their role in the process and

attest that they had no knowledge of Plaintiff’s EEO activity.72 In response, Plaintiff

argues only that Brasher was not the selecting official for the Texas positions.73 To support

this proposition, Plaintiff cites the same affidavit from Brasher that Defendant relies on.

However, Brasher states in that affidavit that she was the selecting official for the Texas

positions.74 Plaintiff has provided no summary judgment evidence to refute these

affidavits.

67 R. Doc. 87-1 at p. 15. Even if Plaintiff had demonstrated that hiring decisionmakers had knowledge of his

protected activity, Plaintiff would still fail to show a causal connection as Plaintiff has not show a close

enough temporal proximity between the protected activity and the adverse employment action for any of

the positions at issue.

68 Id. Though she served as selecting official for the Texas positions, Brasher was not a member of the panel

that interviewed Plaintiff. R. Doc. 87-6 at ¶ 11.

69 R. Doc. 87-11 at ¶ ¶ 3 and 4 (Affidavit of Angela Costella); R. Doc. 87-12 at ¶ ¶ 3 and 4 (Affidavit of Kristin

Buda); R. Doc. 87-13 at ¶ ¶ 3 and 4 (Affidavit of William Melara); R. Doc. 87-14 at ¶ 22 (Affidavit of Donald

Simko).

70 R. Doc. 87-1 at p. 18.

71 R. Doc. 87-6 at ¶¶ 3, 11, 26 (Affidavit of Traci Lea Brasher);

72 R. Doc. 87-11 at ¶ ¶ 3 and 4 (Affidavit of Angela Costella); R. Doc. 87-12 at ¶ ¶ 3 and 4 (Affidavit of Kristin

Buda); R. Doc. 87-13 at ¶ ¶ 3 and 4 (Affidavit of William Melara); R. Doc. 87-14 at ¶ 22 (Affidavit of Donald

Simko).

positions and relies on Thomas’s affidavit in which Thomas states he was the hiring

official for the Atlanta positions and he had no knowledge of Plaintiff’s protected

activity.75 Plaintiff argues that Thomas was not the selecting official for the positions at

issue. However, Defendant states Thomas was the hiring official.76 Plaintiff has provided

no summary judgment evidence refuting Thomas’ affidavit.

Defendant claims that Claude Hyacinthe was the selecting official for the New York

positions, citing to Hyacinthe’s affidavit in which he states he was the selecting official

and had no knowledge of Plaintiff’s protected activity.77 Plaintiff argues that Hyacinthe

was not the selecting official for the positions at issue, but points to the same affidavit in

which Hyacinthe specifically states that he was the selecting official for the positions.78

Plaintiff has provided no summary judgment evidence refuting Hyacinthe’s affidavit.

Plaintiff has not offered any evidence showing these named hiring/selecting

officials and interview panel members had knowledge of his EEO activity. Alternatively,

Plaintiff argues that other various unnamed FEMA employees had general knowledge of

his EEO activity and that this knowledge had filtered throughout the agency.

Plaintiff argues that for the PA Group Supervisor position, Daniel Halle reviewed

the resumes to determine who would be put on a list to be sent to the selecting officials.79

Plaintiff states that he filed an EEO complaint against Halle, and as a result, Halle, an

individual in the hiring process, knew of his protected activity.80 In support, Plaintiff

relies on his own affidavit in which he merely states that Halle was involved in the hiring

75 R. Doc. 87-7 at ¶ 26 (Affidavit of Saidat Thomas).

76 R. Doc 87-1 at p. 21.

77 R. Doc. 87-8 at ¶ ¶ 12, 21 (Affidavit of Claude Hyacinthe)

78 Id. at ¶ 12.

79

identifies Halle as one of five members on the interview panel for the PA Group

Supervisor Position.82 However, Plaintiff was not granted an interview for this position.83

As a result, while Halle may have been aware of Plaintiff’s EEO activity, Halle would not

have interacted with Plaintiff or reviewed his application, as Halle only participated on

the interview panel.84 Furthermore, Plaintiff offers no evidence suggesting that interview

panel members provided input to selecting officials on which candidates to select for

interviews. Accordingly, Plaintiff offers no evidence showing Halle participated in the

review of Plaintiff’s candidacy. Plaintiff also claims that Danielle Hutchins, who reviewed

Plaintiff’s resume for the PA Group Supervisor position, acknowledged in an affidavit that

she was aware of Plaintiff’s EEO activity.85 However, Hutchins’s affidavit does not permit

a reasonable factfinder to conclude she was aware of Plaintiff’s EEO activity when she

reviewed his application, as Hutchins stated that she became aware of Plaintiff’s EEO

activity on August 23, 2021, months after Plaintiff was notified he was not selected for

this job.86 Accordingly, Plaintiff has failed to produce evidence sufficient for a reasonable

factfinder to conclude that the decisionmakers responsible for not-selecting Plaintiff for

the PA Group Supervisor position had knowledge of Plaintiff’s protected activity.

Plaintiff argues a September 29, 2017 email from Plaintiff to Brock Long, in which

Plaintiff complains of discriminatory activity in FEMA, “traversed through FEMA’s chain-

of-command.”87 The email was between Plaintiff and Long, and Plaintiff provides no

evidence that anyone else received, or knew of, this email.88 Plaintiff does not claim that

81 R. Doc. 94-38 (Exh. 31) at ¶ 9.

82 R. Doc. 94-7 (Exh. 7) at ¶ 23.

83 Id. at ¶ 21.

84 Id.

85 R. Doc. 94-33 (Exh. 26) at ¶ 8.

86 R. Doc. 87-2 ¶ 13; R. Doc. 109 ¶ 13.

communicated the existence of Plaintiff’s EEO complaints to anyone involved in

Plaintiff’s hiring decisions.

Plaintiff also claims that Kim Jordan “hear[d] stories” of discriminatory behavior

occurring in the New Orleans office.89 In support of this claim, Plaintiff cites only to the

screenshot of Edward Wright’s email profile and Plaintiff’s own affidavit in which Plaintiff

claims Jordan told him “she had heard of some discriminatory things out of the Louisiana

office.”90 However, this evidence would not allow a reasonable factfinder to conclude

Jordan was involved in the hiring process or that she communicated her knowledge of

Plaintiff’s EEO activity to individuals responsible for Plaintiff’s non-selection. In fact,

Plaintiff does not offer evidence showing Jordan had any knowledge of his EEO activity;

he only claims that she acknowledged general discriminatory behavior in FEMA’s New

Orleans office.91

Plaintiff argues that Kara Brunson and Edward Wright “addressed Plaintiff’s

discrimination concerns with Plaintiff” and that “both parties work in Washington

D[.]C.”92 However, the exhibit Plaintiff cites to support this claim is merely a screenshot

of Edward Wright’s Microsoft Outlook profile and contains no information concerning

Plaintiff.93

Finally, Plaintiff argues that his “EEO activities are well known throughout the

agency.”94 To support this claim, Plaintiff cites to the screenshot of Edward Wright’s email

profile,95 his email to Long,96 and a screenshot of his Microsoft Teams chat with Jordan

89 R. Doc. 94 at p. 12.

90 R. Doc. 94-28 (Exh. 21); R. Doc. 94-38 (Exh. 31) at ¶ 7.

91 Id.

92 R. Doc. 94 at p. 11.

93 R. Doc. 94-28 (Exh. 21).

94 R. Doc. 94 at p. 12.

EEO activities were public knowledge, as one of his EEO complaints he appealed to this

Court would appear when searching his name on the internet.98

The Court finds Plaintiff does not offer evidence sufficient to permit a reasonable

fact finder to conclude that any of the individuals involved in Plaintiff’s hiring process had

knowledge of Plaintiff’s EEO activity when making their hiring decisions. While Plaintiff

claims that various other FEMA employees involved in the hiring process had knowledge

of his EEO activity, Plaintiff does not cite evidence showing that (1) people involved in

Plaintiff’s non-selection had knowledge of his EEO activity or (2) people with knowledge

of his EEO activity communicated their knowledge to people involved in Plaintiff’s hiring

process.

Even if Plaintiff had demonstrated one of the involved individuals had actual

knowledge of the protected activity, Plaintiff would still have to offer evidence showing a

causal connection between their knowledge of the protected activity and the adverse

employment action.99 If Plaintiff had established actual knowledge, one way for Plaintiff

to satisfy this burden would be by showing a “very close” temporal proximity between the

protected activity and the adverse employment action.100

Plaintiff argues there was a very close temporal proximity between his protected

activity and the adverse employment actions in this case. Plaintiff argues he appealed one

of his EEO complaints to this Court in 2019 and litigated this claim through 2022.101

Plaintiff argues that throughout the entirety of this litigation, he was engaging in

97 R. Doc. 94-34 (Exh. 27).

98 R. Doc. 109 ¶ 39.

99 See Lyons v. Katy Independent School District., 964 F.3d 298, 305 (5th Cir. 2020) (“a plaintiff must

demonstrate that the employer’s decision ‘was based in part on knowledge of the employee’s protected

activity’”).

his non-selections in 2019 and 2021 to establish causation.102

For causation purposes, the Fifth Circuit considers the date an EEO complaint is

filed as the date the protected activity occurred.103 In fact, Judge Vance examined this

very issue in Plaintiff’s prior litigation. In that case, Plaintiff argued that he participated

in protected activity by actively litigating a case concerning his EEO activity.104 However,

Judge Vance held, and the Fifth Circuit affirmed, that for purposes of analyzing temporal

proximity, a protected activity occurs when an EEO charge is filed or when the employer

learns about the protected activity, not when a Plaintiff merely participates in litigation

that results from a protected action.105

In this case, Plaintiff filed his last EEO complaint on November 29, 2017.106 The

earliest date that Plaintiff received notice of non-selection for any of the positions at issue

in this matter is August 19, 2019.107 As a result, the period between Plaintiff’s last instance

of protected activity and the earliest adverse employment action is nearly two years. In

Clark County School District v. Breeden, the Supreme Court favorably cited a case

holding that a three-month period without additional evidence of retaliation was

insufficient to establish a causal connection.108 Two years is too long, on its own, to show

a causal connection. As a result, Plaintiff cannot demonstrate causation through temporal

proximity for any of the positions at issue.

102 Id.

103 Devere v. Forfeiture Support Assocs., L.L.C., 613 F. App'x 297, 301 (5th Cir. 2015) (per curiam) (noting

that when plaintiff filed her EEOC complaint in December 2009, and reached a settlement with ICE in

December 2010, plaintiff had failed to establish temporal proximity between her “filing of the EEOC

complaint in December 2009 and her termination in May 2011”).

104 Paulin v. United States Department of Homeland Security, 2022 WL 952262 at *8 (E.D. La. Mar. 30,

2022).

105 Id.

106 R. Doc. 67-2 at p. 3.

infer that any individual involved in Plaintiff’s hiring process for the Texas, Atlanta, New

York, and PA Group Supervisor positions had knowledge of his EEO activity. In addition,

even if knowledge had been established, Plaintiff has not demonstrated causation through

temporal proximity for any of the positions at issue. As a result, he has failed to establish

a causal connection between his protected activity and the adverse employment actions.

Accordingly, he has failed to establish a prima facie case of retaliation under Title VII for

non-selection for the Texas, Atlanta, New York, and PA Group Supervisor positions.

2. If a Prima Facie Case is Established, the Burden Shifts to

Defendant to Demonstrate a Non-Retaliatory Reason for

Not Selecting Plaintiff.

The Court has found Plaintiff failed to establish a prima facie case of retaliation

under Title VII for the Texas, New York, Atlanta, and PA Group Supervisor positions. If

Plaintiff had established a prima facie case of retaliation, the burden would have shifted

to Defendant to offer a non-discriminatory reason for terminating Plaintiff.109 “The

employer’s burden is only one of production, not persuasion, and involves no credibility

assessment.”110 For the sake of completeness, the Court will analyze whether Defendant

has offered a non-retaliatory reason for not selecting Plaintiff for these positions.

For each of the positions, Defendant offers a non-retaliatory reason for not

selecting Plaintiff. For the Texas positions, Defendant points to affidavits from Brasher

and the three members of the Texas interview panel, in which each person states that

Plaintiff lacked the necessary knowledge or experience for the positions.111 For the Atlanta

positions, Defendant points to Thomas’s affidavit in which he states had no knowledge of

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

110 Id.

111 R. Doc. 87-1 at pp. 18-20.

and experiences.112 For the New York and PA Group Supervisor positions, Defendant

points to Hyacinthe’s affidavit in which Hyacinthe states Plaintiff lacked the most

important criteria for the positions, work experience with R2 applicants.113

Defendant has met its burden of production. The burden would shift to Plaintiff to

demonstrate that the articulated reason is pretextual by showing that Defendant would

not have retaliated against him “but for” his protected activity.114

3. If the Defendant Provides a Non-Retaliatory Reason for

Not Selecting Plaintiff, the Plaintiff Must Provide Evidence

Showing the Reason is Pretext.

As Defendant offered non-retaliatory reasons for its adverse employment actions,

the burden shifts back to Plaintiff who must produce evidence showing Defendant’s

proffered reasons amount to pretext.115 For a Title VII retaliation claim, at summary

judgment a plaintiff demonstrates pretext by “show[ing] a conflict in substantial

evidence” on the question of whether Defendant would have selected Plaintiff “but for”

Plaintiff’s protected activity.116 In non-selection cases, a plaintiff may demonstrate pretext

by offering evidence “from which a jury could conclude that ‘no reasonable person, in the

exercise of impartial judgment could have chosen the candidate selected over the plaintiff

for the job in question.’”117 Such evidence must be more than “merely subjective and

speculative.”118 The Fifth Circuit has held that “greater experience alone will not suffice to

raise a fact question as to whether one person is clearly more qualified than another.”119

112 R. Doc 87-10 at US6-7.

113 R. Doc. 87-8 at ¶ 19.

114 Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013)).

115 Lemaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007).

116 Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013)).

117 Moss v. BMC Software, Inc., 610 F.3d 917, 923 (5th Cir. 2010) (quoting Deines v. Texas Dep’t of Protective

& Regulatory Servs., 164 F.3d 277, 280- 81 (5th Cir. 1999)).

for not promoting him amount to pretext. Plaintiff offers the type of subjective and

speculative opinions the Fifth Circuit has held are insufficient to demonstrate pretext.120

For example, Plaintiff argues his public assistant project experience, construction

experience, and engineering background qualified him for the positions.121 Plaintiff cites

to his resume and his own affidavit as evidence that he was more qualified for the

positions than those who Defendant selected.122 In addition, Plaintiff argues he had

greater public assistance experience than several candidates.123 While these arguments

show that Plaintiff believes he was the most qualified candidate for these positions,

Plaintiff fails to demonstrate that “no reasonable person” could have chosen the other

candidates over Plaintiff. Defendant cites to affidavits from the hiring/selecting officials

as well as the Texas interview panel members who detail the weaknesses they perceived

in Plaintiff’s resume, while also describing the specific qualifications they found relevant

in the candidates they hired.124 These statements do not demonstrate a bias against

Plaintiff, but rather a preference for the other candidates’ qualifications and experience.

The fact that Plaintiff disagrees with this preference does not demonstrate that

Defendant’s stated reasons for hiring other candidates amount to pretext.125 In addition,

while Plaintiff claims to have greater public assistance and construction experience than

some of the other candidates, a candidate’s greater experience alone does not

demonstrate pretext.126 Because Plaintiff’s argument that his resume was superior to

other candidates does not show that “but for” Plaintiff’s protected activity, Defendant

120 See id.

121 R. Doc. 94 at p. 17.

122 R. Docs. 94-38 (Exh. 31) (Plaintiff’s Declaration); 94-2 (Exh. 2)(Plaintiff’s Job Application and Resume).

123 R. Doc. 94 at pp. 11-16.

124 See R. Doc. 87-1 at pp. 17-25.

discriminatory reason is pretextual. As a result, his retaliation claim regarding the Texas,

Atlanta, New York, and PA Group Supervisor positions fails as a matter of law.127

B. Defendant is Entitled to Summary Judgment on Plaintiff’s

Retaliation Claim Under Title VII for Non-Selection for the

Chicago Positions.

1. Defendant Demonstrates a Non-Retaliatory Reason for Not

Selecting Plaintiff.

Plaintiff argues Defendant retaliated against him by not selecting him for two

positions in the Chicago office:

- Supervisory Emergency Management Specialist (Recovery);128

- Emergency Management Specialist (Recovery).129

For purposes of this analysis, Defendant does not contest whether Plaintiff

established a prima facie case of retaliation. Rather, Defendant advances to the second

step in the McDonnell Douglas analysis and provides its non-retaliatory reason for not

selecting Plaintiff for these positions.130 Defendant represents that the Chicago region did

not hire anyone for either of these positions, so they could not have retaliated against

Plaintiff by not hiring him.131 Defendant has articulated a non-retaliatory reason for not

selecting Plaintiff, as it did not select anyone for the Chicago openings. The burden now

shifts to Plaintiff to demonstrate that the articulated reason is pretextual by showing that

Defendant would not have retaliated against him “but for” his protected activity.132

127 Although Defendant argues Plaintiff did not exhaust his administrative remedies regarding the PA Group

Supervisor position, the Court need not address this issue as it has already found that Plaintiff’s retaliation

claim for non-selection for these positions fails as a matter of law.

128 R. Doc. 87-2 ¶ 11; R. Doc. 109 ¶ 11.

129 R. Doc. 87-2 ¶ 12; R. Doc. 109 ¶ 12.

130 R. Doc. 87-1 at pp. 17, 22-23.

Plaintiff does not attempt to offer evidence rebutting Defendant’s stated reason for

not selecting him for the Chicago positions. Accordingly, Defendant has failed to

demonstrate that Defendant’s stated reason amounts to pretext, and his claim of

retaliatory non-selection for the Chicago positions fails as a matter of law.

C. Defendant is Entitled to Summary Judgment on Plaintiff’s

Retaliation Claim Under Title VII for Non-Selection for the EMS

(Recovery)Position.

1. Plaintiff has Failed to Make a Prima Facie Showing of Title

VII Retaliation for Non-Selection for the EMS

(Recovery)Position.

Plaintiff argues Defendant retaliated against him by not selecting him for the

position entitled VA-FEMA-19-CLM-2939333-CORE, EMS (RECOVERY).133 Defendant

argues Plaintiff cannot make a prima facie case of retaliation for this position because

Plaintiff cannot establish the third element of a prima facie case, a causal connection

between his protected activity and the adverse employment action. Defendant argues

Plaintiff cannot show that any of the individuals involved in the hiring process for this

position had actual knowledge of Plaintiff’s EEO activity.134

Neither Defendant nor Plaintiff has identified who the selecting/hiring officials

were for this position. Instead, Plaintiff argues, but offers insufficient evidence, that

employees throughout FEMA had general knowledge of his EEO activity. As discussed

above, Plaintiff has failed to show that any of the individuals he claims had knowledge of

his EEO activity participated in the hiring process for this job. As a result, Plaintiff has

failed to offer evidence sufficient to permit the finder of fact to conclude that any

individual involved in Plaintiff’s hiring process had knowledge of his EEO activity.

of fact to conclude that those involved in the hiring process had knowledge of Plaintiff’s

EEO activity, Plaintiff still would have still failed to establish causation through temporal

proximity because the period between his most recent protected activity and the adverse

employment action is two years.135 As a result, Plaintiff has failed to establish knowledge

or temporal proximity between the protected activity and the adverse employment action.

Accordingly, Plaintiff has failed to establish a causal connection between his protected

activity and the adverse employment action and has failed to establish a prima facie case

of retaliation under Title VII based on his failure to be selected for the EMS Recovery

position.136

2. Plaintiff Failed to Timely File his EEO Complaint

Regarding the EMS Recovery Position.

Even if Plaintiff had established a prima facie case of retaliation for the EMS

Recovery position, Plaintiff’s claim still would fail because it is time-barred. Federal

employees must seek informal counseling before they file an EEOC complaint.137 The

employee must initiate contact with an EEOC counselor within 45 days of the date of the

matter alleged to be discriminatory.138 Following this initial contact, “[i]f the matter has

not been resolved, the aggrieved person shall be informed in writing by the Counselor,

not later than the thirtieth day after contacting the Counselor, of the right to file a

discrimination complaint.”139 This 30-day deadline may be extended by an agreement

between the employee and the agency, but may not be extended by more than 60 days.140

Accordingly, the counseling period can last, at most, 90 days from the initial contact

135 See supra section I. A. a.

136 Defendant does not offer a non-retaliatory reason for not selecting Plaintiff for this position. As such, the

Court cannot conduct the McDonnell Douglas burden shifting analysis for this position.

137 29 C.F.R. § 1614.105(a).

138 29 C.F.R. § 1614.105(a)(1).

complaint. Importantly, “a complaint must be filed within 15 days of receipt” of this notice

of the right to file a complaint.141

Defendant argues Plaintiff did not timely initiate contact with an EEOC counselor

regarding the EMS Recovery position. Plaintiff testified in his deposition that he received

notice he was not selected for this position on August 19, 2019.142 From that point,

Plaintiff had 45 days to initiate contact with an EEO counselor. Plaintiff alleges in his

complaint that he initiated contact with a counselor on July 9, 2021, well outside the 45-

day limit.143 However, Plaintiff contradicts the allegations in his complaint in his affidavit,

in which he states he contacted a counselor regarding non-selection for this position on

or about August 28, 2019, which would fall within the 45-day limit.144

If Plaintiff’s complaint is correct, and he initiated contact with an EEO counselor

on July 9, 2021, he initiated contact nearly two years after he received notice of the alleged

retaliatory non-selection that led to his complaint. This delay in initiating contact with a

counselor violates § 1614.105(a)(1), and Plaintiff’s claim is barred.

If Plaintiff’s affidavit is correct, and he initiated contact with an EEO counselor on

August 28, 2019, he complied with the 45-day time limit. However, the EEO counseling

period can last, at most, 90 days from the time the employee initiated contact with the

EEO counselor. At the end of the counseling period, the EEO counselor must provide

notice to the employee of their right to file a formal complaint. The employee must then

file a formal complaint within 15 days of this notice. Accordingly, the EEOC office must

have provided Plaintiff with notice of his right to file suit within at most, 90 days from

141 29 C.F.R. § 1614.106(b).

142 R. Doc. 87-5 (Plaintiff’s Deposition), 84:19-85:7 and 172:2-8.

had 15 days to file a formal EEO complaint. As a result, the latest Plaintiff could have filed

an EEO complaint without his claim being time-barred would have been 105 days from

August 28, 2019. However, if Plaintiff’s affidavit is correct, Plaintiff did not file an EEO

complaint until September 19, 2021,145 over two years later, and his claim is barred under

29 C.F.R. § 1614.106(b).146

As a result, if Plaintiff’s complaint is correct, he has run afoul of 29 C.F.R. §

1614.105(a). If Plaintiff’s affidavit is correct, he has run afoul of 29 C.F.R. § 1614.106(b).

Either way, his claim for retaliatory non-selection for VA-FEMA-19-CLM-2939333-

CORE, EMS (RECOVERY) is time-barred.

II. Defendant is Entitled to Summary Judgment on Plaintiff’s Hostile

Work Environment Claim.

Plaintiff argues that Defendant created a hostile work environment through “years

of denial of promotions and constant retaliation.”147 Under Title VII, to prevail on a hostile

work environment claim, Plaintiff must establish that: (1) he belongs to a protected group;

(2) he was subject to unwelcome harassment; (3) the harassment complained of was

based on a protected characteristic; (4) the harassment affected a term, condition, or

privilege of employment; and (5) the employer knew or should have known of the

harassment in question and failed to take prompt remedial action.148 The Supreme Court

has reasoned that “[h]ostile environment claims are different in kind from discrete

acts.”149 “The ‘unlawful employment practice’ therefore cannot be said to occur on any

145 Id.

146 An issue may exist as to whether Defendant waived this defense by not asserting it in its answer. See Fort

Bend Cnty., Texas v. Davis, 587 U.S. 541, 552 (2019). However, the parties did not raise it.

147 R. Doc. 1. at ¶ 25.

discrete acts, a single act of harassment may not be actionable on its own.”150

In terms of the fourth element of a hostile work environment claim—that the

harassment affected a term, condition, or privilege of her employment—it is said that

harassment affects a term, condition, or privilege of employment when it is “severe or

pervasive.”151 To be considered hostile, the work environment 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.”152 To determine whether an environment

is sufficiently hostile or abusive, the fact-finder must look at the totality of the

circumstances, “including the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.”153 When

genuine disputes of material fact exist as to the totality of the circumstances, the issue is

“best left for the triers of fact to determine after all testimony has been heard and all

evidence presented.”154 The Supreme Court instructs that a “reasonable person” standard

should be employed to determine whether conduct is severe or pervasive, considering “all

the circumstances.”155

Plaintiff has failed to offer evidence creating a disputed issue of fact as to whether

Defendant’s conduct in denying him promotion amounted to severe or pervasive conduct.

In this case, Plaintiff alleges that Defendant created a hostile-work environment by failing

to promote him in retaliation for his EEO complaints.156 Plaintiff does not offer evidence

150 Id.

151 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (emphasis added).

152 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988).

153 Id.

154 Wilson v. Laitram Corp., 131 F.Supp.2d 826, 835 (E.D. La. 2001).

that Defendant subjected him to repeated humiliating, discriminatory conduct that

impacted his day-to-day work life. The only discriminatory conduct that Plaintiff alleges

occurred was his non-selection for positions for which he applied.‘57 The Fifth Circuit has

held that to be considered hostile, the work environment must be “both objectively and

subjectively offensive.”'58 Moreover, the environment must be one that a reasonable

person would find hostile or abusive.159 The fact that Defendant did not select Plaintiff for

these positions would not create an objectively offensive environment for a reasonable

person.1©° In addition, Plaintiff was privately notified that he was not selected for these

positions; he was not publicly humiliated at his place of work.‘*! These private e-mail

communications that occurred over a brief three-month span did not create a work

environment that a reasonable person would consider hostile or abusive. Considering the

totality of the circumstances, Plaintiff has failed to show there is a genuine issue of

material fact with respect to whether alleged harassment altered a condition of his

employment. As a result, his hostile work environment claim under Title VII fails as a

matter of law.

CONCLUSION

IT IS ORDERED that Defendant’s motion for summary judgment is GRANTED.

New Orleans, Louisiana, this 27th day of January, 2026.

Suse M

SUSIE sionga

UNITED STATES DISTRICT JUDGE

158 Ramsey, 286 F.3d at 268.

159 Faragher, 524 U.S. at 788.

160 See id.

Doc. 87-2 J 11-13.

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