Haire v. Board of Supervisors of Louisiana State University Agricultural & Mechanical College

Case: 12-30290 Document: 00512248636 Page: 1 Date Filed: 05/21/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 21, 2013

No. 12-30290 Lyle W. Cayce

Clerk

MARTHA HELEN HAIRE,

Plaintiff - Appellant

v.

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY

AGRICULTURAL AND MECHANICAL COLLEGE,

Defendant - Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

Before JOLLY, GARZA, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Plaintiff – Appellant Martha Helen Haire (“Haire”) brought this gender

discrimination suit against Louisiana State University (“LSU”), alleging the

LSU Police Department violated Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq., as well as Louisiana state employment law, LA. REV.

STAT. ANN. §§ 23:332(A)(1), 23:967, by failing to promote her to the position of

Chief of Police and retaliating against her for filing complaints with the Equal

Employment Opportunity Commission (“EEOC”) and Louisiana Commission for

Human Rights (“LCHR”). The district court granted summary judgment in favor

of LSU. Because Haire has established a prima facie case of discrimination and

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there is a genuine disputed issue of fact of whether LSU’s alleged non-

discriminatory reason for not promoting Haire is pretextual, we hold that

summary judgment on the gender discrimination claim was improper.

Furthermore, because Haire has shown a conflict in substantial evidence

regarding retaliation, we hold summary judgment was also improper on that

second claim. We thus REVERSE, VACATE the district court’s judgment, and

REMAND the case for further proceedings not inconsistent with this opinion.

I.

Haire has been a member of the LSU Police Department (“LSUPD”) since

1988. She began as an on-the-beat police officer but was promoted to roles with

increased administrative responsibilities, including sergeant, lieutenant,

captain, and, finally in 2005, major, a position she still holds. In 2007, Mr. Ricky

Adams retired as Chief of Police at LSU, and Haire, believing herself to be a

qualified candidate to replace him,1 decided to apply for the new opening. LSU

recruitment policy states that “[i]nternal promotions are strongly encouraged”

and that “[e]fforts should be made to identify women and minority candidates

for [interim] appointments.” Although Haire learned of the Chief opening and

applied, she never heard from LSU regarding her application, and Mr. Gary

Durham (“Durham”), Public Safety Director of LSU, was soon appointed

temporary, “interim” Chief of Police. The position, however, remained open for

another two years while LSU’s new Chancellor looked for a permanent

replacement. While he was interim Chief, Durham performed a variety of

actions which, according to Haire, demonstrated his bias against women.2

1

The position required that all applicants possess, at minimum, a college degree. Haire

has a Bachelor’s Degree from the University of Mississippi and a Master’s Degree from

Faulkner University. Additionally, Ms. Haire completed training at the FBI National

Academy.

2

As the discussion infra will show, Durham’s alleged actions, while troublesome, are

not as crucial to Haire’s gender discrimination claim as the comments of another officer,

2

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After Durham was appointed and while the search for a permanent

replacement continued, Haire allegedly was excluded from decision-making at

LSUPD in which her job had previously allowed her to take part. More

significantly, Haire claims she began to face hostility from a co-worker,

Lawrence Rabalais (“Rabalais”), who was also a LSUPD major and who was

competing with Haire for the promotion to Chief of Police. Rabalais allegedly

slandered Haire in conjunction with a newspaper article written about Haire’s

husband,3 and, of considerable relevance to this case, told a LSUPD co-worker

that he wanted to “to get rid of” Haire and that, if a woman was appointed to the

position of Chief, Rabalais would quit. In this suit, Haire alleges that Rabalais

and Durham’s alleged misogynism was the reason LSU failed to promote her to

the position of Chief. As the impending discussion will show, however,

Rabalais’s alleged gender bias – rather than Durham’s – is more significant in

this appeal, because Rabalais was involved in an investigation into Haire’s

conduct which cost her the promotion, and Rabalais exercised some significant

leverage over LSU’s decisionmaker.

In May 2009, an incident involving both Haire and Rabalais occurred,

which Haire claims provided LSU with a convenient pretext not to promote her.

Lawrence Rabalais. Nonetheless, four of Durham’s actions, as alleged by Haire, warrant

particular mention: (1) One co-worker of Haire’s testified that Durham told him in 2009 that

he “d[id] not want a woman in th[e] position” of Chief; (2) On an office door, Durham hung a

poster, the imagery on which suggested “getting more efficiency out of women employees;”

Durham laughed about the poster and showed it to female co-workers; (3) Durham sent

“dumb-blonde” jokes to LSUPD employee Sharon Gonzalez; and (4) In 2009, when an article

concerning problems the Louisiana Department of Revenue was having was published in the

local newspaper, Durham responded by saying, “[T]hat’s what happens when you have a bunch

of women in charge.”

3

In 2008, shortly after her husband had been arrested for acts irrelevant to this case,

Rabalais allegedly notified LSUPD officers of a newspaper article about Haire’s husband,

laughed openly about the husband’s arrest, and instructed that Haire’s name be mentioned

in conjunction with the story about her husband. Rabalais’s alleged intent was to embarrass

Haire.

3

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Haire entered information into the police reporting system that made public an

arrest of former LSU Dean Carolyn Collins, a high-profile figure on campus.

Haire alleges she entered the information after being given a directive from

Durham, her superior at the time. Although she believed the request to be

somewhat irregular, she believed it to be lawful and carried out the order,

resulting in the disclosure of Collins’s identity in conjunction with a crime. The

incident seems to have developed into an internal scandal because Haire’s

actions arguably violated police procedure, compromised the integrity of the

LSUPD, and embarrassed the University. A series of three disciplinary

procedures then followed.

First, the LSUPD held an investigative “244 hearing” to look into the

Collins incident. As part of the investigation, Haire was interviewed by

Rabalais, her competitor for the position of Chief, who allegedly had said he

would quit if a woman were appointed to that role. Second, when the

investigation into the Collins incident concluded, Haire received a “Coaching

Letter,” in which the Chancellor of LSU found Haire’s actions “grossly

inappropriate” and “most disturbing.” The letter acknowledged that Haire had

received a directive to enter information into the reporting system from her

superior but nonetheless found her acts to be a “violation of proper procedure,”

which caused the Chancellor to “question [Haire’s] trustworthiness” and resulted

in her future performance being “closely monitored.” Haire disagreed with

allegations made in the Coaching Letter and sent a rebuttal to LSU authorities.

Third, Rabalais gave Haire the lowest performance evaluation she has received

in her twenty-two years with LSUPD, rating her below satisfactory for “job

knowledge and technical skills.” As a result, Haire allegedly lost her supervisory

responsibilities, certain subordinate personnel, her position as commander of

Football Gameday Operations, and the ability to earn overtime pay. In her brief,

4

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she contends this “decimating reduction of her duties” essentially stripped her

of “her rank, her command, and her job.”

Roughly three months after the Collins incident, Michael Martin, LSU’s

Chancellor, allegedly under the influence of Durham, named Rabalais interim

Chief of Police. But Rabalais lacked an undergraduate degree which the position

required. This lack of qualification prompted Martin to announce that Rabalais

would not assume “full Chief” status until after the completion of his degree

requirements, whenever that might occur.4 Shortly thereafter in September

2009, and in the midst of disciplinary actions described above, Haire filed a

Charge of Discrimination with the EEOC and LCHR, alleging illegal

discrimination and retaliation. Finally, in January 2010, while Haire’s EEOC

charge was presumably still pending, Rabalais was appointed permanent Chief

of Police. To clarify the specific nature of Haire’s claims before the district court,

the same that are before us on appeal: she contends her failure to receive the

promotion (that was given to Rabalais) was motivated by gender-based

discriminatory animus and was retaliation for her EEOC and LCHR complaints.

Haire filed suit against LSUPD, alleging in her amended petition that

LSU is liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,

et seq., as well as Louisiana employment law, for gender discrimination,

retaliation, and reprisal. LSU filed a motion for summary judgment, arguing

that Haire could not show that her gender was a motivating factor in not

promoting her to Chief of Police, and that she could not prevail on her retaliation

or reprisal claims because there is no causal connection between her protected

activity and any adverse employment action. The district court granted

summary judgment on behalf of LSU on all claims. Haire timely appealed.

4

Haire alleges that Rabalais “did not even complete the requirements of the online

degree himself” and rather asked subordinate employees to do his online coursework in his

stead.

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II.

We review the district court’s grant of summary judgment de novo. Young

v. Equifax Credit Information Servs., Inc., 294 F.3d 631, 635 (5th Cir. 2002).

Summary judgment is proper if, after adequate opportunity for discovery, the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with any affidavits filed in support of the motion, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986). When assessing whether a dispute as to any

material fact exists, we consider all the evidence in the record but refrain from

making credibility determinations or weighing the evidence; instead, we draw

all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

In employment discrimination cases, if the plaintiff establishes a prima

facie case of discrimination, the burden of production shifts to the employer to

provide a legitimate, non-discriminatory reason for the action. Manning v.

Chevron Chem. Co., LLC, 332 F.3d 874, 881 (5th Cir. 2003). This approach is

referred to by courts as the McDonnell Douglas analysis or framework. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If the defendant offers

such a justification, the burden shifts back to the plaintiff, who can attempt to

show that the defendant’s proffered reason is simply a pretext for discrimination.

Manning, 332 F.3d at 881. To carry this burden in a discrimination case, the

plaintiff must put forward evidence rebutting each of the nondiscriminatory

reasons the employer articulates. Wallace v. Methodist Hosp. System, 271 F.2d

212, 220 (5th Cir. 2001). A plaintiff may establish pretext by showing that a

discriminatory motive more likely motivated her employer’s decision, such as

through evidence of disparate treatment, or that her employer’s explanation is

unworthy of credence. Id. (inset quotations omitted).

6

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III.

We begin by addressing Haire’s first claim: that LSU violated Title VII by

discriminating against her on the basis of her gender when it failed to promote

her to the position of Chief of Police.5 For the purposes of reviewing this

summary judgment motion, we will assume arguendo that the comments by

Durham and Rabalais do not constitute direct evidence of discrimination and,

consequently, that the usual McDonnell Douglas framework applies.6 See

McDonnell Douglas, 411 U.S. at 802-05.

Under the McDonnell Douglas test, a Title VII plaintiff alleging gender

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

she was qualified for the position sought; (3) she was subject to an adverse

employment action; and (4) she was replaced by someone outside her protected

class or was treated less favorably than other similarly situated employees

outside her class. Fahim v. Marriott Hotel Servs., 551 F.3d 344, 350 (5th Cir.

2008) (citations omitted). Haire has made a prima facie case: she is (1) a female,

who (2) was – based on her college degree and relevant years of experience on

5

This claim is not time-barred. Under Title VII, a plaintiff alleging gender

discrimination must file a complaint with the EEOC within 180 days of the alleged

discriminatory act or within 300 days if the plaintiff has initially instituted proceedings with

a state or local agency with authority to grant relief. 42 U.S.C. § 2000e-5(e)(1).

Discrimination claims brought under Louisiana law are subject to a one-year prescriptive

period. LA. REV. STAT. ANN. § 23:303(D). Citing these provisions and considering the relevant

dates in Haire’s suit, the district court held that any alleged discrimination claims based on

LSU’s acts prior to December 3, 2008 are time-barred and any claims arising under Louisiana

law based on LSU’s acts prior to March 25, 2009 have prescribed. Thus, to the extent that

Haire argues that Durham’s promotion amounted to gender discrimination, that claim is time-

barred because Durham’s appointment happened in 2007. The rest of her claims, however,

are not time-barred. The alleged statements that Rabalais did not want a woman in the

position of Chief, for example, began in 2007 and continued into 2008 and 2009, and,

furthermore, the Collins incident happened in 2009.

6

Although Haire argues that she has offered direct evidence and that McDonnell

Douglas, therefore, does not apply, our discussion infra herein will indicate that we need not

decide that question because, even under the indirect, circumstantial evidence analysis

employed by the district court, summary judgment was premature.

7

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LSUPD – qualified for the position of Chief. On two separate occasions, when

Rabalais was named interim Chief and again when he was named permanent

Chief, she was (3) passed over for a promotion. Failure to promote is clearly an

adverse employment action. Breaux v. City of Garland, 205 F.3d 150, 157 (5th

Cir. 2000) (“Adverse employment actions are discharges, demotions, refusals to

hire, refusals to promote, and reprimands.”) (internal quotation marks omitted)

(emphasis added). Finally, (4) a similarly situated male employee, Rabalais

(who began work for the LSUPD at roughly the same time as Haire and, at the

relevant time, had the same rank as Major), was treated differently. Rabalais

was hired instead of Haire, even though he lacked a college degree. Thus, Haire

has set forth a prima facie case of gender-based discrimination under Title VII.7

The next step, therefore, is to assess whether LSU has provided a

legitimate non-discriminatory justification for issuing the Coaching Letter and

not promoting Haire. See Manning, 332 F.3d at 881. LSU has done so. It

produced testimony that Haire was passed over for the promotion because

Chancellor Martin decided she had violated police procedure during the Collins

incident and thus could not be trusted with a significant increase in

responsibility. Chancellor Martin, for example, testified that, in the context of

reviewing some 1,500 police reports, he saw no report of a LSUPD official

7

In addition to her federal discrimination claim under Title VII, Haire brings a state

law claim under LA. REV. STAT. ANN. § 23:332(A)(1), which states that it is “an unlawful

employment practice for an employer to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual, with respect to [her] compensation, or

[her] terms, conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” Louisiana courts have looked to federal anti-discrimination

jurisprudence in interpreting Louisiana’s anti-discrimination statutes, see, e.g., Plummer v.

Marriott Corp., 654 So. 2d 843, 848 (La. App. 4 Cir. 1995), and we have held that the

appropriate framework for analyzing a retaliation claim under the Louisiana Whistleblower

Statute is the same as that applied in Title VII retaliation cases, see Smith v. A&T Solutions,

Inc., 90 F. App’x. 718, 723 (5th Cir. 2004); cf. Smith v. Amedisys, Inc., 298 F.3d 434, 448 (5th

Cir. 2002). Thus, when we evaluate the Title VII discrimination claim infra herein, we dispose

of the state law claims as well.

8

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performing the same actions that got Haire in trouble, that is, entering the same

information into the “police report posting” system twice.8 He further testified

that, in the wake of the Collins incident, he wanted Haire terminated because

“if Major Haire knew how [the police report posting system] worked, and Major

Haire knew what the policy was, that it struck [him] that Major Haire ought not

to have two file numbers posted on that website”. Another employee, Marian

Callier, also testified that Haire’s actions were “not proper procedure” and that,

in her opinion, Haire should have been terminated for her actions in connection

with the Collins incident. Taken together, these statements satisfy the

employer’s burden: according to LSU, it did not promote Haire because of her

misconduct during the Collins incident.

Because LSU has offered a legitimate non-discriminatory reason for its

decision, the third step in the McDonnell Douglas analysis is for Haire to show,

by rebutting the nondiscriminatory reason articulated by the employer, that

LSU’s stated reason for the failure to promote was a pretext for gender

discrimination. See Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).

Pretext is the crux of Haire’s case; she provides evidence that she was following

a lawful order from her supervisor and LSUPD had no formal written procedure

that clearly prohibited her from obeying her supervisor’s command to file a

second report.9 For her, what followed from the Collins incident was all a

8

Although neither party is very clear about this reporting system, it appears to work

as follows: when a police report is first written, it is immediately posted on LSUPD’s “blotter”

and website. In this case, after the initial police report involving former LSU Dean Carolyn

Collins was posted, the report did not include any information of Collins’s actual arrest

because, at the time, the arrest had not yet been made. When, however, Durham instructed

Haire to enter the information regarding Collins into the system a second time, with a new file

number, Haire included information of Collins’s arrest (which, by that later point, had

occurred). When this information went public, an on-campus scandal involving Collins, a high-

profile figure, resulted.

9

LSU has not introduced any evidence suggesting the existence of such a formalized

procedure.

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charade that LSU undertook to cover its tracks in the sex discrimination suit it

anticipated. By papering Haire’s files with disciplinary write-ups, it could

protect itself with a sham justification for not promoting a female applicant who

was more qualified. Haire’s theory, then, is that she was punished, based on

wholly arbitrary and subjective criteria; for an act she had an obligation to

perform; and the subsequent formal reprimand cost her the promotion. Haire

points to the close timing between the selection of Rabalais as interim Chief and

the issuance of the Coaching Letter, and argues the items of circumstantial

evidence create genuine issues of material fact on the legitimacy and truth of

LSU’s proffered justification for failing to select Haire for the promotion. We

agree that Haire has produced evidence sufficient for a jury to rule in her favor

on these underlying predicate points.

Regarding the Collins incident, for instance, the record shows that

Durham, Haire’s supervisor at the time, gave her a command with which she

was bound to comply. In his deposition, Durham testified that he gave Haire a

lawful order. He acknowledged that, if she had not obeyed it, she could have

been disciplined by the department. Rabalais, in his deposition, added that,

assuming Haire had obeyed a lawful order from Durham, she would not have

done anything wrong. And Marian Callier, finally, stated that Haire initially

questioned Durham’s order as improper procedure but that he instructed her to

enter the information into the police blotter anyway. This evidence is sufficient

to raise a genuine issue of material fact. There is a bona fide question whether

LSU’s purported justification for not promoting Haire, whose credentials were

superior to those of Rabalais, was pretextual; and there is the further question

whether Haire could have committed any official wrongdoing when she complied

with her superior’s directives.10

10

Haire need not introduce further evidence that the disciplinary measures that

followed from the Collins incident were motivated by gender bias. Evidence demonstrating

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IV.

However, this determination does not end the inquiry into LSU’s motive

for not promoting Haire. As the district court and LSU point out, the ultimate

decision to hire someone other than Haire was made by Chancellor Martin, not

Rabalais, and the record does not indicate that Martin directly engaged in any

discrimination or made any remarks regarding Haire’s gender. Under the “cat’s

paw” theory of liability,11 however, it is possible that Rabalais’s remarks that he

wanted “to get rid of” Haire and that he would resign if a female were appointed

Chief may be imputed to Martin, the formal decisionmaker, if Rabalais played

a role in the ultimate selection.

Under the four-factor test set forth in Brown v. CSC Logic, Inc., 82 F.3d

651 (5th Cir. 1996), a workplace remark constitutes sufficient evidence of

discrimination if it is (a) related to the protected class of persons of which the

plaintiff is a member, (b) proximate in time to the employment decision at issue,

(c) made by an individual with authority over the employment decision at issue,

and (d) related to the employment decision at issue. Auguster v. Vermillion

Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2011) (internal quotation marks

omitted) (emphasis added). The district court held that Haire failed to satisfy

that the employer’s explanation is false or unworthy of credence, taken together with the

plaintiff’s prima facie case, is likely to support an inference of discrimination even without

further evidence of defendant’s true motive. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,

897 (5th Cir. 2002). No further evidence of discriminatory animus is required because “once

the employer’s justification has been eliminated, discrimination may well be the most likely

alternative explanation . . . .” Reeves, 530 U.S. at 147.

11

Under the cat’s paw theory, a subordinate employee’s discriminatory remarks

regarding a co-worker can be attributed to the workplace superior, ultimately the one in

charge of making employment decisions, when it is shown that the subordinate influenced the

superior’s decision or thought process. See, e.g., Staub v. Proctor Hospital, 131 S. Ct. 1186,

1193 (2011) (stating that an “employer is at fault [when] one of its agents committed an action

based on discriminatory animus that was intended to cause, and did in fact cause, an adverse

employment action.”); see also Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004);

Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990).

11

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the Brown test because, under the third element, “neither Durham nor Rabalais

had authority over the decision on the hiring of the Chief of Police.” The record,

however, indicates Rabalais played a role in the investigation of Haire, was

responsible for parts of the Coaching Letter, and reported to the formal

decisionmaker, Chancellor Martin, about the “normal procedure” within the

LSUPD with respect to entering information into the police report posting

system. For example, in Martin’s deposition, the following exchange occurred:

Q: Did you[, Chancellor Martin] ever have any conversations with

Rabalais about what happened in the Collins’ situation?

A: I asked – I asked Rabalais . . . about normal procedure within the

Department.

Q: And what did he say?

A: He explained to me [that double numbering] . . . was not the way

you do business.

Consequently, Chancellor Martin’s understanding was that:

A: . . . [I]f Major Haire knew how it worked, and Major Haire knew

what the policy was, that it struck me that Major Haire ought not to

have two file numbers posted on that website.

(Emphasis added.) Thus, the Chancellor, who was new to LSU at the time12 and

unfamiliar with LSUPD policy, obtained from Rabalais what the “normal

procedure” was and then attributed wrongdoing to Haire for violating what he

understood, from Rabalais’s description, that procedure to be. This evidence

sufficiently establishes, for the purposes of avoiding summary judgment, that

Rabalais, a party demonstrating discriminatory animus, “had influence . . . over

the official decisionmaker . . . .” Russell v. McKinney Hosp. Venture, 235 F.3d

219, 226 (5th Cir. 2000) (emphasis added). In such a situation, our

12

Martin began his position as Chancellor roughly eight months prior to the Collins

incident.

12

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jurisprudence holds that “it is proper to impute [the] discriminatory attitude[]

to [that] formal decisionmaker.” Id. Consequently, the district court erred by

holding that Rabalais’s discriminatory animus cannot be imputed to Martin for

the purpose of creating an issue of disputed fact.

V.

Haire also brings a retaliation claim under Title VII and a reprisal claim

under the Louisiana Whistleblower Statute, LA. REV. STAT. ANN. § 23:967(A),13

alleging that LSU retaliated against her by issuing the Coaching Letter and low

performance evaluation, not promoting her, and changing her job duties. When

we evaluate the Title VII retaliation claim infra herein, we dispose of the state

law retaliation claim as well.14

In order to establish a prima facie case of retaliation under Title VII, a

plaintiff must show that (1) she engaged in activity protected by the statute, (2)

an adverse employment action occurred, and (3) a causal link exists between the

protected activity and the adverse employment action. Evans v. City of Houston,

246 F.3d 344, 352 (5th Cir. 2001). If a plaintiff succeeds in establishing a prima

facie case, the McDonnell Douglas burden shifting framework then applies. Id.

at 354. Here, Haire’s protected activity consists of filing discrimination

complaints with the EEOC and LCHR and sending a rebuttal letter to

13

That statute states, in relevant part, “An employer shall not take reprisal against an

employee who in good faith, and after advising the employer of the violation of the law: (1)

Discloses or threatens to disclose a workplace act or practice that is in violation of the

law . . . .” LA. REV. STAT. ANN.§ 23:967(A).

14

See supra n.7.

13

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Chancellor Martin, so she has clearly met the first prong of the test.15 See 42

U.S.C. § 2000e-3(a).

Viewing the evidence in the light most favorable to Haire, we hold that the

second prong also has been satisfied. Ever since a male officer, Bart Thompson,

was hired by LSUPD, Rabalais admits that he has ceased referring officers to

Major Haire and now instead refers them to Major Thompson when they have

questions regarding their duties. Sharon Gonzalez, who worked in LSU Risk

Management alongside Haire and Durham, testified that Haire is “alienated

from administration at the police department,” that “Rabalais doesn’t talk to

her,” and that the situation has “gotten worse since this lawsuit.” Gonzales

further said that Rabalais “demeans” Haire and “keeps her out of meetings.” In

sum, Gonzalez felt that LSU is “taking things away from [Haire].” Haire has

also become ineligible for overtime pay,16 which has an effect on her income.

Thus, although it is probably hyperbole to say as Haire does in her brief, that

“virtually all of her job duties have been removed,” it is nonetheless true that

Haire has put forth modest evidence that her job has changed, that she has been

excluded from meetings, and that her pay may have been affected. Collectively,

these occurrences rise to the level of a Title VII “adverse employment action.”

See McCoy v. City of Shreveport, 492 F.3d 551, 559-60 (5th Cir. 2007) (stating

15

However, Haire’s allegation that the Coaching Letter constitutes retaliation or

reprisal fails, since she did not engage in any protected activity prior to receiving the letter.

The letter was issued on August 26, 2009, the EEOC and LCHR complaints were filed on

September 29, 2009, and her rebuttal was sent on October 21, 2009. The letter, thus, could

not be “retaliation” for an EEOC charge that had yet to be filed.

16

The record contains some evidence substantiating this allegation: Haire produced an

email in which Rabalais issued a directive to Haire stating “I do not want . . . you working

event overtime.” As this decision may have affected Haire’s income, it arguably constitutes

an adverse employment action. See Gomez v. Orleans Parish Sch. Bd., 2005 U.S. Dist. LEXIS

17810, at 41 (“[P]laintiff’s claims of Title VII retaliation based on her . . . having been denied

the opportunity to perform overtime work . . . might conceivably be classified as [an] adverse

employment action[].”)

14

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that “The anti-retaliation provision [of Title VII], unlike the substantive

[discrimination] provision is not limited to discriminatory actions that affect the

terms and conditions of employment . . . Even though our precedent recognizing

only ‘ultimate employment decisions’ as actionable adverse employment actions

remains controlling for Title VII discrimination claims . . . retaliation claims

require[] a closer look . . .”).17 Drawing all inferences in favor of Haire, the

occurrences are more than “petty slights, minor annoyances, and simple lack of

good manners” that employees regularly encounter in the workplace, and which

the Supreme Court has recognized are not actionable retaliatory conduct. See

Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008) (internal

quotation marks omitted).

The third prong of the Title VII prima facie retaliation case is the “causal

connection” between the protected activity, in this case the filing of the EEOC

charge, and the adverse employment action. As proof that she has satisfied this

prong, Haire points to circumstantial evidence – the close timing (roughly three

months) between the EEOC charge and the naming of Rabalais as permanent

Chief. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)

(noting that “very close” temporal proximity between the protected activity and

retaliatory conduct is enough to make a prima facie showing of causation but

holding that a twenty-month period was not close enough). Here, Rabalais was

named interim Chief in August 2009, Haire filed her EEOC charge on

September 29, 2009, and Rabalais was named permanent Chief in January

17

The district court brushed by the adverse employment action prong of the retaliation

analysis, focusing only on the performance evaluation Haire received and ultimately

concluding that the evaluation did not satisfy the prong because it “did not result in demotion,

decrease in pay, decrease in benefits, termination, nor has LSU relied on the evaluation.” But,

as outlined above, the performance evaluation is not the only action at issue in the retaliation

analysis. Also at issue are the alleged changes in Haire’s job duties and income that followed

from the Collins incident but which were not directly tied to the performance evaluation.

15

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No. 12-30290

2010.18 This timing, coupled with the gradual changes in Haire’s duties noted

by Sharon Gonzalez, is enough to satisfy the third prong. See O’Neal v. Ferguson

Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (stating “[A] jury could have

inferred . . . that the reallocation of [an employee’s] responsibilities soon after

the filing of the EEOC claim . . . provid[ed] the causal connection between the

EEOC filing and the adverse employment action.”).

Even if Haire established a prima facie case of retaliation under Title VII,

she must respond to LSU’s alleged non-retaliatory reason for her failure to

receive a promotion and show that the retaliation was a “but for” cause of the

adverse employment decision. Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th

Cir. 1996) (internal quotation marks omitted). To defeat a motion for summary

judgment, a Title VII plaintiff, like Haire, must show there is a conflict in

substantial evidence on this ultimate issue. Long, 88 F.3d at 308 (inset

quotation marks omitted). “Evidence is substantial if it is of such quality and

weight that reasonable and fair-minded men in the exercise of impartial

judgment might reach different conclusions.” Id. (inset quotation marks

omitted). For the same reasons outlined supra herein with regard to

discrimination, we hold that Haire has met her burden of showing a conflict in

substantial and relevant evidence, as LSU and Haire make competing

allegations, and credibility determinations are best left for trial. Thus, the

district court erred in granting LSU summary judgment on the retaliation

claims.

VI.

We conclude that the district court erred in granting summary judgment

to LSU because Haire has produced evidence sufficient to raise a genuine issue

18

Having found the second prong not to be satisfied, the district court did not reach the

third, “causal link” prong.

16

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No. 12-30290

of material fact of whether LSUPD’s gender discrimination motivated the

University’s decision to promote Rabalais instead of Haire. We further conclude

there exists a genuine issue of material fact of whether the University retaliated

against Haire for sending a rebuttal letter to the Chancellor and filing EEOC

and LCHR complaints. The judgment of the district court dismissing Haire’s

complaint is therefore REVERSED and VACATED, and the case is REMANDED

for proceedings not inconsistent with this opinion.

REVERSED, VACATED

and REMANDED.

17