Knudsen v. Bd. of Supervisors of the Univ. of La. Sys.

• Decision Date: 16 April 2015
• Docket Number: CIVIL ACTION NO. 14-382
• Parties: KEVIN KNUDSEN v. BOARD OF SUPERVISORS OF THE UNIVERSITY OF LOUISIANA SYSTEM
• Court: U.S. District Court — Eastern District of Louisiana

KEVIN KNUDSEN v. BOARD OF SUPERVISORS OF THE UNIVERSITY OF LOUISIANA SYSTEM

CIVIL ACTION NO. 14-382

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

April 16, 2015

MAGISTRATE JUDGE JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTION

Plaintiff, Kevin Knudsen, alleges that his employer, the Board of Supervisors of the University of Louisiana System ("the Board"), discriminated against him based on his race by allowing his subordinate to foster a racially hostile work environment and that the Board retaliated against him for having complained about the actions of his subordinate by transferring him to a less desirable position, all in violation of Title VII, 42 U.S.C. § 2000e(k), "and corresponding [but unspecified] state law." Complaint, Record Doc. No. 1 at p. 7. This matter was referred to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 10.

The Board filed a motion for summary judgment addressing plaintiff's claims under Title VII and alleging in a footnote that it enjoys Eleventh Amendment immunity from any state law claims. Record Doc. No. 22, at p.1 n.1. Knudsen filed a timely memorandum in opposition, in which he fails to respond to defendant's Eleventh Amendment immunity argument or to argue that any "corresponding state law" appliesto his claims. Record Doc. No. 25. A party's failure to brief an argument in response to a summary judgment motion waives that argument. Accordingly, Knudsen is deemed to have abandoned any contention either that he has state law claims or that defendant is not immune under the Eleventh Amendment from being sued in this court for such claims. McDaniel v. Shell Oil Co., 350 F. App'x 924, 927 (5th Cir. 2009); Blackwell v. Laque, 275 F. App'x 363, 366 n.3 (5th Cir. 2008); Ledet v. Fleetwood Enters., Inc., 245 F.3d 791, 2000 WL 1910173, at *3 (5th Cir. 2000).

The Board filed a timely reply memorandum in support of its summary judgment motion. Record Doc. No. 26. The memorandum contained two new exhibits, Defendant's Exhibits J and K, which the court did not consider because plaintiff had no opportunity to respond to those exhibits. Even if the court had considered the exhibits, they would not have changed the outcome of this decision.

Having considered the complaint, the record, the arguments of the parties and the applicable law, IT IS ORDERED that the motion is GRANTED IN PART as to plaintiff's retaliation claim and DENIED IN PART as to his hostile work environment claim, for the following reasons.

ANALYSIS

A. Standards of Review

"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56, as revised effective December 1, 2010, establishes new procedures for supporting factual positions:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c).

Thus, the moving party bears the initial burden of identifying those materials in the record that it believes demonstrate the absence of a genuinely disputed material fact, but it is not required to negate elements of the nonmoving party's case. Capitol Indem. Corp. v. United States, 452 F.3d 428, 430 (5th Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "[A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to [a particular material] fact." Advisory Committee Notes, at 261.

A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). No genuine dispute of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).

To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must cite to particular evidence in the record to support the essential elements of its claim. Id. (citing Celotex, 477 U.S. at 321-23); accord U.S. ex rel. Patton v. Shaw Servs., L.L.C., 418 F. App'x 366, 371 (5th Cir. 2011). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323; accord U.S. ex rel. Patton, 418 F. App'x at 371.

"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998); accord Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Badon v. R J R Nabisco Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quotation omitted) (emphasis in original). "Conclusory allegations unsupported by specific facts . . . will not prevent the award of summary judgment; 'the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint."'" Nat'l Ass'n of Gov't Employees, 40 F.3d at 713 (quoting Anderson, 477 U.S. at 249).

"Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotation omitted) (emphasis in original); accord Duron v. Albertson's LLC, 560 F.3d 288, 291 (5th Cir. 2009).

B. Material Fact Issues Are in Dispute Regarding Plaintiff's Hostile Work Environment Claim

"The creation of a hostile work environment through harassment . . . is a form of proscribed discrimination" under Title VII. Vance v. Ball State Univ., 133 S. Ct. 2434, 2455 (2013) (Thomas, J., concurring) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998); Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 64-65 (1986)). The Board argues that Knudsen cannot establish a prima facie case of a racially hostile work environment because he cannot prove either that the alleged harassment was based on his race or that it was severe or pervasive enough to affect a term, condition or privilege of his employment. I find that Knudsen's evidence is sufficient to create a genuine issue of material fact that requires trial of his hostile work environment claim.

This case does not fit the usual pattern of allegations by an employee that either his supervisor or a co-worker created a hostile work environment. The legal standards for those usual fact patterns are well established. To establish a prima facie case of hostile work environment under Title VII, a plaintiff must prove that

(1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on [a prohibited ground]; (4) the harassment complained of 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.

Mitchell v. Snow, 326 F. App'x 852, 856-57 (5th Cir. 2009) (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). For purposes of the pending motion forsummary judgment only, defendant does not contest that Knudsen could establish the first two prongs of the test.

"'[W]here the harassment is allegedly committed by a supervisor with immediate or successively higher authority, the plaintiff employee needs to satisfy only the first four of the elements listed above.'" Parker v. La. Dep't of Special Educ., 323 F. App'x 321, 325 (5th Cir. 2009) (quoting Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001)); accord Equal Emp'mt Opportunity Comm'n v. Boh Bros. Constr. Co., 731 F.3d 444, 452-53 (5th Cir. 2013) (en banc) (citing Vance, 133 S. Ct. at 2439). "If the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable." Id. at 452. However, if no tangible employment action is taken, the employer will have the opportunity to prove its affirmative Ellerth/Faragher defense. Id. (citing Vance, 133 S. Ct. at 2439).

"An employee is a supervisor if 'he or she is empowered by the employer to take tangible employment actions against the victim.'" Id. (quoting Vance, 133 S. Ct. at 2439). If the employer...