Johnson v. Board of Suprs of LSU

Case: 22-30699 Document: 00517025399 Page: 1 Date Filed: 01/08/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

January 8, 2024

No. 22-30699

Lyle W. Cayce

____________ Clerk

Carolyn Johnson,

Plaintiff—Appellant,

versus

Board of Supervisors of Louisiana State University and

Agricultural and Mechanical College,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:19-CV-12823

______________________________

Before Smith, Southwick, and Higginson, Circuit Judges.

Stephen A Higginson, Circuit Judge:

Plaintiff-Appellant Carolyn Johnson (“Johnson”) appeals summary

judgment on her claims of Title VII harassment and retaliation against former

employer Defendant-Appellee LSU Health Sciences Center (“LSUHSC”).

For the reasons that follow, we AFFIRM.

I.

Johnson is an African-American female who worked at LSUHSC as

an Administrative Coordinator in the Division of Animal Care. Her

Case: 22-30699 Document: 00517025399 Page: 2 Date Filed: 01/08/2024

No. 22-30699

responsibilities included performing administrative duties for the veterinari-

ans at LSUHSC. To facilitate this, Johnson’s desk was located in an open

area which connected to the offices of certain veterinarians, including Dr.

Jeffrey Schumacher (“Schumacher”).

On Friday, August 10, 2018, Schumacher slapped Johnson on her but-

tocks (“the Incident”). According to Johnson, this was predated by many

acts of sexual and racial harassment in the preceding months (together, “pre-

Incident conduct”), during which Schumacher: (i) referred to her as “Boo”;

(ii) looked down her blouse three or four times; (iii) talked about sex with

African-American women with a coworker in Johnson’s presence, including

making a remark that “black women have big asses”; (iv) made daily com-

ments about Johnson’s appearance and perfume; and (v) suggested “getting

together about five times.”

On Tuesday, August 14, Johnson emailed her direct supervisor, Shan-

tell Curtis,1 to express that she needed to talk. Curtis called and Johnson told

her what happened, and Curtis sent an e-mail to human resources (“HR”)

about the Incident. Two days later, on August 16, Johnson called Curtis to

see if there was any response. After Curtis told her that no one from HR had

responded to the email, the two went and spoke with Jason Johnson (“Ja-

son”), an employee in HR. Jason explained that because Schumacher was

faculty and Johnson was staff, he had to wait for Vice-Chancellor Moerch-

bacher to return from vacation to handle the complaint.

Following the conversation with Jason, Johnson was temporarily relo-

cated. First, she was moved to a space near Curtis, which was located in

_____________________

1

The record inconsistently identifies Curtis’ first name (sometimes spelling it

“Shantell,” and sometimes spelling it “Chantell”), but this opinion adopts “Shantell,”

the spelling taken from Curtis’ deposition.

2

Case: 22-30699 Document: 00517025399 Page: 3 Date Filed: 01/08/2024

No. 22-30699

another building, separate from the faculty for whom Johnson worked, from

August 20 through August 24. Then on August 27, she was moved back to a

storage room in Animal Care, which was located around the corner from

Johnson’s original workstation. Johnson testified that the storage room to

which she was relocated was full of gnats, emitted an odor, and had windows

that were covered with black paper. Johnson complained about the bug prob-

lem, and Curtis responded by buying “at least six or seven different kinds of

bug sprays,” but Johnson was not relocated.

Upon Moerchbacher’s return on August 27, LSUHSC initiated an in-

vestigation, which concluded on September 18 and ultimately substantiated

Johnson’s complaint. Johnson was informed that she could return to her orig-

inal workspace and Schumacher would be moved.

On September 25, 2019, Johnson sued LSUHSC. After some of her

claims were dismissed, she filed an amended complaint alleging sexual har-

assment, racial discrimination, and retaliatory harassment in violation of Ti-

tle VII based on pre-Incident conduct, the Incident, and Johnson’s relocation

to the storage room. The district court granted LSUHSC’s motion for sum-

mary judgment as to all three claims, and Johnson appealed.

II.

A summary judgment is reviewed de novo, applying the same standards

as the district court. EEOC v. Agro Distr., LLC, 555 F.3d 462, 469 (5th Cir.

2009). Summary judgment is proper when the moving party can demonstrate

that, viewing the evidence in the light most favorable to the non-moving

party, there is no genuine dispute of material fact and that they are entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also LifeCare Mgmt.

Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 703 F.3d 835, 840-41 (5th Cir. 2013).

“A genuine dispute as to a material fact exists ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Rogers v.

3

Case: 22-30699 Document: 00517025399 Page: 4 Date Filed: 01/08/2024

No. 22-30699

Bromac Title Servs., LLC, 755 F.3d 347, 350 (5th Cir. 2014) (quoting Anderson

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

In opposing summary judgment, a party “may not rest on mere con-

clusory allegations or denials in its pleadings.” Smith v. Regional Transit

Auth., 827 F.3d 412, 417 (5th Cir. 2016) (quoting Hightower v. Tex. Hosp.

Ass’n, 65 F.3d 443, 447 (5th Cir. 1995)). A panel “may ‘affirm summary judg-

ment on any ground supported by the record, even if it is different from that

relied on by the district court.’” Reed v. Neopost USA, Inc., 701 F.3d 434, 438

(5th Cir. 2012) (quoting Moss v. BMC Software, Inc., 610 F.3d 917, 928 (5th

Cir. 2010)).

III.

Johnson brings claims for racial and sexual harassment, as well as re-

taliation, pursuant to Title VII.

Title VII makes it “an unlawful employment practice for an em-

ployer . . . to discriminate against any individual with respect to his compen-

sation, terms, conditions, or privileges of employment, because of such indi-

vidual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). Title VII’s prohibition against discrimination extends to protect

against either “a tangible employment action, such as a demotion or denial

of promotion, or . . . a hostile or abusive working environment.” Lauderdale

v. Tex. Dep’t of Crim. Just., 512 F.3d 157, 162 (5th Cir. 2007); see also Dediol

v. Best Chevrolet, Inc., 655 F.3d 435, 440 (5th Cir. 2011) (noting that “[t]he

phrase ‘terms, conditions, or privileges of employment’ includes requiring

people to work in a discriminatorily hostile or abusive environment” (citing

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))). Johnson does not allege

that any of the conduct constituted or resulted in a tangible employment ac-

tion, such as a firing or a demotion. Thus, to establish that she was sexually

or racially harassed in violation of Title VII, Johnson must show “that the

4

Case: 22-30699 Document: 00517025399 Page: 5 Date Filed: 01/08/2024

No. 22-30699

harassment created a hostile or abusive working environment.” Harvill v.

Westward Commc’ns, LLC, 433 F.3d 428, 434 (5th Cir. 2005). To make this

showing, Johnson must demonstrate that:

(1) she is a member of a protected group; (2) she was the victim

of uninvited sexual [or racial] harassment; (3) the harassment

was based on sex [or race] (4) the harassment affected a “term,

condition, or privilege” of [her] employment; and (5) her em-

ployer knew or should have known of the harassment and failed

to take prompt remedial action.

Id.; see also Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir.

2012).

Title VII also prevents retaliation by “forbid[ding] employer actions

that discriminate against an employee . . . because he has opposed a practice

that Title VII forbids or has made a charge, testified, assisted, or participated

in a Title VII investigation, proceeding, or hearing.” Saketkoo v. Administra-

tors of Tulane Educ. Fund, 31 F.4th 990, 999 (5th Cir. 2022) (internal quota-

tion marks omitted) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 59 (2006)).

We first consider Johnson’s harassment claims related to the Incident,

before turning to her harassment claims related to the pre-Incident conduct,

and then to her retaliation claim related to her temporary relocation to the

storage room.

A.

With respect to her Title VII harassment claims regarding the Inci-

dent, Johnson has failed to make the requisite showing on the fifth element:

that LSUHSC “knew or should have known of the harassment and failed to

take prompt remedial action.” Harvill, 433 F.3d at 434.

5

Case: 22-30699 Document: 00517025399 Page: 6 Date Filed: 01/08/2024

No. 22-30699

To constitute “prompt remedial action” by an employer, the remedial

action “must be reasonably calculated to end the harassment.” Stewart v.

Miss. Transp. Comm’n., 586 F.3d 321, 329 (5th Cir. 2009). This is “a fact-

specific inquiry,” as “not every response by an employer will be sufficient to

absolve the employer of liability under Title VII.” Williams-Boldware v. Den-

ton County, 741 F.3d 635, 640 (5th Cir. 2014) (internal quotation marks and

citation omitted). Nonetheless, “[i]n certain circumstances, we have held

that an employer took prompt remedial action as a matter of law.” Id. (inter-

nal quotation marks and citation omitted). We have so held, for instance,

where immediately after the reported harassment, the manager separated the

plaintiff and harasser and instructed the harasser to stay away. See Skidmore

v. Precision Printing & Packaging, Inc., 188 F.3d 606, 617 (5th Cir. 1999); see

also Kreamer v. Henry’s Towing, 150 F. App’x 378, 382-83 (5th Cir. 2005) (per

curiam) (finding a prompt response where the employer issued a series of

warnings and, after those warnings proved ineffective and the harassment

sporadically continued and escalated over the course of six days, transferred

offender away from the plaintiff).

Here, after Johnson lodged her complaint with HR (on a Thursday),

LSUHSC promptly took steps so that Johnson did not have to interact with

Schumacher, including relocating her workspace that following Monday.2

_____________________

2

Johnson alleges that she would run into Schumacher and was told that she would

have to work with him during the pendency of the investigation. But there is no evidence

of this in the record other than the allegations in her pleadings, which cannot be credited to

defeat summary judgment. See Smith, 827 F.3d at 417; see also Fed. R. Civ. P. 56(c)(1)

(requiring factual positions in summary judgment to be supported by citations to “materials

in the record,” including “depositions, documents, electronically stored information,

affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other

materials”).

6

Case: 22-30699 Document: 00517025399 Page: 7 Date Filed: 01/08/2024

No. 22-30699

LSUHSC also opened an investigation, which eventually substantiated John-

son’s claims and led to permanently moving Schumacher.

Though it is true that the official investigation was not commenced

until August 27,3 eleven days after Johnson’s report to HR on August 16, this

does not demonstrate that LSUHSC’s response was unreasonably calculated

to end the harassment. Unlike Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298

(6th Cir. 2016), which Johnson invokes in support of her argument, it cannot

be said that LSUHSC exhibited “total inaction for ten days,” id. at 312. In-

deed, unlike in Smith, LSUHSC did not have a history of complaints and dis-

ciplinary action against Schumacher, compare id. at 305; did immediately sep-

arate Johnson and Schumacher, compare id. at 304, 312, and did conduct an

investigation that was not alleged to be deficient, compare id. at 311.

Here, LSUHSC quickly took action to separate Johnson and Schu-

macher in order to prevent potential further harassment.4 LSUHSC’s ac-

tions were very similar to those undertaken in other cases where this court

has found prompt remedial action as a matter of law: Johnson and Schu-

macher were physically separated, and Schumacher was instructed not to

have contact with or be around Johnson. See Skidmore, 188 F.3d at 616. Be-

cause Johnson has failed to demonstrate the fifth element, her harassment

claims relating to the Incident fail.

B.

_____________________

3

To the extent the district court suggested that the investigation began on August

16, it erred.

4

Johnson also alleges that because she ran into Schumacher, she became so afraid

that, rather than leave the storage room to go to the bathroom, she urinated on herself two

to three times. This is, however, only alleged in the complaint and not supported by

evidence that might properly defeat summary judgment.

7

Case: 22-30699 Document: 00517025399 Page: 8 Date Filed: 01/08/2024

No. 22-30699

Johnson’s pre-Incident conduct claims also fail at the fifth element, as

she fails to identify a genuine issue of fact showing that LSUHSC either

“knew or should have known of the harassment.” Harvill, 433 F.3d at 434.

For this analysis, “it matters whether a harasser is a ‘supervisor’ or simply a

coworker.” Matherne v. Ruba Mgmt., 624 F. App’x 835, 839 (5th Cir. 2015)

(quoting Vance v. Ball State Univ., 570 U.S. 421, 424 (2013)).5 That is because

“[a]n employer can be put on notice of harassment, and therefore be required

to take remedial action, [only] if a person within the organization who has the

‘authority to address the harassment problem’ or an ‘affirmative duty’ to re-

port harassment learns of the harassment in question.” Abbt v. City of Hou-

ston, 28 F.4th 601, 607 (5th Cir. 2022) (quoting Williamson v. City of Houston,

148 F.3d 462, 466 (5th Cir. 1998)). “[T]he key to whose knowledge may be

imputed to the employer is remedial power: There is no actual knowledge

until someone ‘with authority to address the problem’ is notified.” Sharp v.

City of Houston, 164 F.3d 923, 929–30 (5th Cir. 1999) (citation omitted).

When the harasser is a co-worker, “the negligence standard governs

employer liability,” and employers are only negligent if they “knew or should

have known about the conduct and failed to stop it.” Hudson v. Lincare, Inc.,

58 F.4th 222, 229–30 (5th Cir. 2023) (citations omitted). “It weighs against

finding negligence if the affected employee ‘unreasonably fail[s] to take ad-

vantage of corrective opportunities provided by’ the employer.” Id. (citation

omitted).

(i)

_____________________

5

A supervisor is defined as an employee “empowered . . . to take tangible

employment actions against the victim.” Matherne, 624 F. App'x at 839 (quoting Vance,

570 U.S. at 424).

8

Case: 22-30699 Document: 00517025399 Page: 9 Date Filed: 01/08/2024

No. 22-30699

As a threshold issue, Johnson alleged various facts in an affidavit sub-

mitted in support of her opposition to the motion for summary judgment,

which LSUHSC moved to strike on the grounds that it failed to meet the re-

quirements of Federal Rule of Civil Procedure 56(c)(4) and contained inad-

missible evidence, including statements for which Johnson lacked personal

knowledge. Assuming without deciding that the affidavit statements were ad-

missible, the district court nonetheless granted summary judgment because

it found that none of the testimony in the affidavit created a genuine issue for

trial. In particular, the district court found that Johnson’s statements as to

“what other individuals saw, heard, thought, and did in relation to Dr. Schu-

macher’s alleged conduct before the Incident” were conclusory and failed to

present a genuine issue “‘in the face of conflicting and probative evidence’

in the record,” including Johnson’s own prior deposition testimony and the

absence of any witness deposition testimony recalling the conduct Johnson

alleged.

While we disagree that Johnson’s affidavit testimony was conclusory,

we do agree that certain conflicting statements contained therein may be

properly disregarded under the sham-affidavit exception. Under that doc-

trine, a party cannot “defeat a motion for summary judgment using an affi-

davit that impeaches, without explanation, sworn testimony.” Seigler v. Wal-

Mart Stores Tex., L.L.C., 30 F.4th 472, 477 (5th Cir. 2022) (internal quotation

marks and citation omitted). The “bar for applying the doctrine,” however,

“is a high one,” and “typically require[s] affidavit testimony that is inher-

ently inconsistent with prior testimony.” Id. (internal quotation marks and

citation omitted); see also Winzer v. Kaufman County, 916 F.3d 464, 472 (5th

Cir. 2019) (noting that a district court may refuse to consider statements in

an affidavit only where they are “so markedly inconsistent with a prior state-

ment as to constitute an obvious sham” (internal quotation marks and cita-

tion omitted)). Importantly, this inconsistency must be with the affiant’s own

9

Case: 22-30699 Document: 00517025399 Page: 10 Date Filed: 01/08/2024

No. 22-30699

prior testimony, not the testimony of others. See Seigler, 30 F.4th at 477 (“If

a party who has been examined at length on deposition could raise an issue of

fact simply by submitting an affidavit contradicting his own prior testimony,

this would greatly diminish the utility of summary judgment as a procedure

for screening out sham issues of fact.”) (emphasis added).6

(ii)

In light of the above, we evaluate testimony as to each individual to

whom Johnson claims she reported Schumacher’s pre-Incident conduct—

Curtis, Johnson, and Birke—to determine whether it supports a genuine is-

sue of fact that LSUHSC either “knew or should have known of the harass-

ment.”

First, Johnson’s affidavit states that she had had conversations with

Curtis, her direct supervisor, on multiple occasions regarding Schumacher’s

pre-Incident conduct. This is, however, contradicted by Johnson’s own un-

ambiguous deposition testimony that she never reported Schumacher’s pre-

Incident conduct to Curtis or HR, which Johnson herself concedes on appeal.

As a result, Johnson’s affidavit testimony does appear to be “so markedly

inconsistent with [her] prior deposition as to constitute an obvious sham,”

Clark v. Resistoflex Co., 854 F.2d 762, 766 (5th Cir. 1988), and the district

court did not abuse its discretion in refusing to consider it as evidence.

_____________________

6

To the extent that the district court disregarded Johnson’s affidavit on the ground

that it was contradicted by other witness testimony, such as because “[t]he record shows

that no witness deposed in this case recalled the conduct Plaintiff now alleges,” this was

likely an abuse of discretion. Such contradictions may negatively impact Johnson’s

credibility, but credibility is a determination for the jury, not the court. Guzman v. Allstate

Assurance Co., 18 F.4th 157, 162 (“How much weight to credit self-interested evidence is a

question of credibility, which judges may not evaluate at the summary judgment stage.”).

10

Case: 22-30699 Document: 00517025399 Page: 11 Date Filed: 01/08/2024

No. 22-30699

Next, Johnson argues there is a triable issue due to the allegation in

her affidavit that Jason from HR had seen a photo—where Johnson’s face

and torso were put on top of a photo of a football player who was wearing

“skin-tight football pants”—posted near Schumacher’s office, and merely

laughed it off rather than addressing it. But as discussed above, Johnson

agreed when asked at her deposition whether it was accurate that she did not

report “any of . . . [the] inappropriate [pre-Incident] behavior” to HR, which

would have necessarily included Jason. The breadth of Johnson’s deposition

testimony therefore tends to contradict the allegation contained in the affida-

vit.

Johnson also argues that LSUHSC should have known about Schu-

macher’s pre-Incident conduct, as there were “warning signals” from a pre-

vious episode in which Schumacher was reported by an intern for initiating a

conversation in which he, among other things, “asked whether she was in a

relationship” and “described the sexual preferences of his family members.”

The intern testified that she immediately reported the conversation and was

promptly moved to the library (away from Schumacher), where she remained

for the rest of her internship. While this evidence suggests that LSUHSC had

general knowledge of one instance in which Schumacher had behaved inap-

propriately prior to the Incident, it does not suggest that LSUHSC was on

notice that Schumacher might engage in the type of behavior that Johnson

alleges, nor does it imply that LSUHSC knew of Schumacher’s pre-Incident

conduct towards Johnson. Based on the available deposition testimony from

the intern, moreover, it appears that LSUHSC took quick action to remedy

the situation—by moving the intern away from Schumacher, as it did with

Johnson—and Johnson makes no allegation that any problems persisted.

This evidence, then, is insufficient to impute knowledge to LSUHSC.

Finally, Johnson argues that another veterinarian, Dr. Leslie Birke,

was aware of, and was even attempting to address, Schumacher’s

11

Case: 22-30699 Document: 00517025399 Page: 12 Date Filed: 01/08/2024

No. 22-30699

harassment. Johnson stated that she had had multiple conversations with

Birke about Schumacher’s inappropriate conversations, which Birke person-

ally witnessed and even attempted to stop. Because Johnson identifies Birke

as the “Acting Director of Animal Care,” she argues that those allegations

are sufficient to demonstrate that LSUHSC knew about Schumacher’s pre-

Incident harassment.

It is a close question as to whether Johnson has presented sufficient

evidence to create a factual dispute as to whether Birke was a supervisor with

either “‘authority to address the harassment problem’ or an ‘affirmative

duty’ to report harassment learns of the harassment in question.” Abbt, 28

F.4th at 607. It is true that Birke had the title of Acting Director of Animal

Care; and at oral argument, Johnson pressed this title. Reliance on that mere

title alone, however, is insufficient to carry Johnson’s burden of establishing

the elements of her claim at the summary judgment stage. Johnson provides

no evidence, organization chart or otherwise, to support her allegations about

Birke’s position relative to hers. Evidence in the record actually indicates that

Johnson had a different employee classification than the veterinarians with

whom she worked, and had different supervisory structures (as noted earlier,

Jason had explained to Johnson “that because she was staff and Dr. Schu-

macher was faculty he could not open up an investigation until he consulted

with Vice-Chancellor Moerchbacher”). Indeed Birke, like Schumacher, was

a veterinarian in the Animal Care division—and Johnson concedes that Schu-

macher was not her supervisor.

There is deposition testimony in which Birke is asked “did you ever

instruct Dr. Schumacher to avoid and stay away from Ms. Johnson?”, to

which Birke says “yes.” Inferring from this exchange that Birke had discipli-

nary authority over Schumacher, however, would be an inference predicated

on multiple assumptions, and seemingly contradicted by Johnson’s own sug-

gestion that Schumacher would speak to Birke in a derogatory manner and

12

Case: 22-30699 Document: 00517025399 Page: 13 Date Filed: 01/08/2024

No. 22-30699

that Birke’s alleged attempts to stop Schumacher’s behavior were ineffec-

tive. Moreover, such an inference is an argument that Johnson herself does

not make. On balance, therefore, it has not been shown either that Birke, as

faculty, would have had supervisory authority over Johnson, who was staff;

or that Birke had disciplinary authority over Schumacher. We thus agree with

the district court that there is insufficient evidence in the record upon which

to impute knowledge of Schumacher’s pre-Incident events to LSUHSC.

C.

Johnson’s third claim is that LSUHSC retaliated against her for re-

porting Schumacher’s harassment by moving her to the storage room while

the investigation was ongoing.

Although in her brief and at oral argument Johnson argues she has di-

rect evidence of retaliatory intent from Curtis’ alleged statements, these are

only found in Johnson’s complaint, and a party opposing a properly-sup-

ported summary judgment motion “may not rest upon mere allegations con-

tained in the pleadings, but must set forth and support by summary judgment

evidence specific facts showing the existence of a genuine issue for trial.”

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

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57 (1986)). “Where, as

here, the plaintiff seeks to prove causation by circumstantial evidence, she

carries the initial burden of establishing a prima facie case of retaliation, and

the retaliation claim is analyzed under a McDonnell Douglas burden-shifting

framework.” Saketkoo, 31 F.4th at 1000 (citations and internal punctuation

omitted).

Under that framework, the employee must show that “(1) she en-

gaged in a protected activity; (2) she suffered an adverse employment action;

and (3) a causal connection exists between the protected activity and the ad-

verse employment action.” Id. (internal quotation marks and citation

13

Case: 22-30699 Document: 00517025399 Page: 14 Date Filed: 01/08/2024

No. 22-30699

omitted). Upon that successful showing, the burden shifts to the employer to

“provide ‘a legitimate, non-discriminatory reason’ for the adverse employ-

ment action.” Id. (quoting Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571,

577 (5th Cir. 2020). The employee can then attack any proffered reason as

pretextual. Id.

As the Supreme Court has expressed, an adverse action for the pur-

poses of Title VII retaliation need only be one that a reasonable employee

would have found “materially adverse,” meaning “it . . . might have dis-

suaded a reasonable worker from making or supporting [protected activity].”

Burlington, 548 U.S. at 68. As such, the district court erred when it required

Johnson to show that she suffered an “adverse employment action” “con-

sist[ing] of ‘ultimate employment decisions’ such as hiring, firing, demoting,

promoting, granting leave, and compensating.”7 Johnson was not, therefore,

required to show a specific adverse employment action to establish her retal-

iation claim.

Under the proper standard for Title VII retaliation—whether reason-

able employees would have been dissuaded from protected activity—the par-

ties dispute whether Johnson has established a prima facie case. We need not

decide this issue. Even if we assume Johnson meets her burden in establishing

that prima facie case, it is clear that Johnson fails under the third step of the

McDonnell Douglas burden-shifting framework: LSUHSC provided a

_____________________

7

This is, moreover, a standard that our court has recently summarily repudiated.

Hamilton v. Dallas Cnty., 79 F.4th 494, 497 (5th Cir. 2023) (en banc) (“Despite [Title

VII’s] broad language, we have long limited the universe of actionable adverse employment

actions to so-called ‘ultimate employment decisions.’ We end that interpretive incongruity

today. . . . [W]e hold that a plaintiff plausibly alleges a disparate-treatment claim under Title

VII if she pleads discrimination in hiring, firing, compensation, or the ‘terms, conditions,

or privileges’ of her employment. She need not also show an ‘ultimate employment

decision,’ a phrase that appears nowhere in the statute and that thwarts legitimate claims

of workplace bias.”).

14

Case: 22-30699 Document: 00517025399 Page: 15 Date Filed: 01/08/2024

No. 22-30699

legitimate, non-retaliatory reason for Johnson’s relocation to the storage

room, and Johnson advances no evidence of pretext to create a genuine dis-

pute on the issue.

Deposition testimony indicates the intention behind the relocation

was to separate Johnson from Schumacher during the investigation. LSU-

HSC believed it would be a “safe place” where she would not run into Schu-

macher, and there was limited space. Johnson responds that LSUHSC should

have found her another room, and that “[i]f LSU[HSC] could transfer her

remotely once, LSU[HSC] could have done it again.” Speculation that she

could have been assigned another room, however, does not demonstrate that

LSUHSC’s reasons for assigning Johnson to the storage room were pre-

textual. It is unclear what other rooms existed—Johnson does not provide

any evidence to suggest those did exist—and Birke testified that there was

limited space. Indeed, Johnson herself acknowledges that Curtis and HR

thought she needed to be close to the faculty in Animal Services, as the stor-

age room was. Therefore, Johnson has failed to marshal evidence to demon-

strate that LSUHSC did not relocate her to the storage room for legitimate,

non-retaliatory ends, and her claim for retaliation fails.

IV.

Because the record does not contain evidence to demonstrate a genu-

ine factual dispute as to whether LSUHSC took prompt remedial action to

address Johnson’s complaint about the Incident or LSUHSC’s knowledge of

Schumacher’s pre-Incident behavior, we AFFIRM summary judgment on

Johnson’s harassment claims. Similarly, because Johnson fails to create a

genuine dispute of fact that LSUHSC’s reasons for relocating her to the stor-

age room were pretextual, we also AFFIRM summary judgment on John-

son’s retaliation claim.

15