Montgomery-Smith v. La. Dep't of Health & Hosps., CIVIL ACTION NO. 17-5564 SECTION: "E"(3)

• Decision Date: 06 August 2018
• Docket Number: CIVIL ACTION NO. 17-5564 SECTION: "E"(3)
• Parties: DENEEN L. MONTGOMERY-SMITH, Plaintiff v. LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, ET AL., Defendants
• Court: U.S. District Court — Eastern District of Louisiana

DENEEN L. MONTGOMERY-SMITH, Plaintiff v. LOUISIANA DEPARTMENT OFHEALTH AND HOSPITALS, ET AL., Defendants

CIVIL ACTION NO. 17-5564 SECTION: "E"(3)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

August 6, 2018

ORDER AND REASONS

Before the Court is a motion for summary judgment filed by Defendant Louisiana Department of Health and Hospitals ("DHH").¹ Plaintiff Deneen Montgomery-Smith opposes the motion.² For the reasons that follow, the Court grants the motion in full and grants judgment in favor of DHH and against Plaintiff.

BACKGROUND³

The Court assumes familiarity with the facts of this case, which have been aptly summarized in this Court's prior orders.⁴ On March 2, 2018, the Court granted in part and denied in part DHH's motion to dismiss.⁵ Following the Court's ruling on DHH's motion to dismiss, Plaintiff's remaining claims arise under Title VII of the Civil Rights Act,⁶ and are based on: (1) a retaliatory hostile work environment, (2) retaliation, and (3) race discrimination.⁷ DHH now seeks summary judgment on those claims.⁸

In its motion, DHH submits it is entitled to judgment as a matter of law on Plaintiff's retaliatory hostile work environment claim, arguing Plaintiff cannot make aprima facie case of a hostile work environment.⁹ DHH further contends it is entitled to judgment on Plaintiff's retaliation claim, as Plaintiff's claims of retaliation are not causally connected to Plaintiff's protected conduct.¹⁰ Finally, DHH seeks judgment on Plaintiff's race discrimination claim, contending that, even assuming Plaintiff has stated a prima facie case of race discrimination, DHH has articulated a non-retaliatory reason for its conduct, and Plaintiff cannot meet her burden of showing pretext.¹¹

I. 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."¹² "An issue is material if its resolution could affect the outcome of the action."¹³ 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 the evidence."¹⁴ All reasonable inferences are drawn in favor of the non-moving party.¹⁵ There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party, thus entitling the moving party to judgment as a matter of law.¹⁶

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact."To satisfy Rule 56's burden of production, the moving party must do one of two things: "the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim" or "the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." 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 non-moving 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.¹⁷

If the dispositive issue is one on which the non-moving 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 non-movant's claim, or (2) affirmatively demonstrating that there is no evidence in the record to establish an essential element of the non-movant's claim.¹⁸ If the movant fails to affirmatively show the absence of evidence in the record, its motion for summary judgment must be denied.¹⁹ Thus, the non-moving 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."²⁰ "[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate theprecise manner in which that evidence supports his or her claim. 'Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'"²¹

II. ANALYSIS

In her amended complaint, Plaintiff alleges she was subjected to a retaliatory hostile work environment, retaliation, and race-based discrimination, all based on conduct that allegedly occurred between March 27, 2015 and December 5, 2016.²² DHH moves for summary judgment on these claims.²³ The Court discusses each claim separately.

A. DHH is entitled to summary judgment on Plaintiff's retaliatory hostile work environment claim

Plaintiff alleges she was subjected to a retaliatory hostile work environment. A hostile work environment results from discrimination that does not culminate in a tangible employment action.²⁴ A hostile work environment:

Involves repeated conduct ... [that] occur over a series of days or perhaps years and ... [where] a single act of harassment may not be actionable on its own, [while] a discrete-acts claim involves a single act of discrimination such as termination, failure to promote, denial of transfer, or refusal to hire. [A] plaintiff may not combine discrete acts to form a hostile work environment claim without meeting the required hostile work environment standard.²⁵

"A workplace environment is hostile when it is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment."²⁶

Plaintiff's hostile work environment claim differs from the typical hostile work environment claim in that Plaintiff claims DHH created and permitted a hostile work environment in retaliation for her protected activities, as opposed to a hostile work environment based on discrimination against a protected group under Title VII.²⁷ "The Fifth Circuit has neither recognized nor foreclosed retaliatory hostile work environment claims."²⁸ "At least five other circuits recognize such a cause of action."²⁹ "Given the absence of binding authority, courts in the Fifth Circuit have assumed that a retaliatory hostile work environment claim can be brought."³⁰

The Court need not decide whether a retaliatory hostile work environment is an actionable claim under Title VII, however, as Plaintiff's proffered evidence of a hostile work environment is neither severe nor pervasive enough to overcome DHH's summary judgment motion.

Courts in this circuit have found conduct demonstrably more severe and more pervasive than Plaintiff's allegations in the instant matter did not alter the terms and conditions of the plaintiffs' employment. For example, in EEOC v. WC & M Enterprises, the Fifth Circuit concluded the plaintiff's allegation that (1) she was placed on administrative leave for three weeks; (2) upon returning, she was reassigned to a newsupervisor and given a heavier workload; (3) personal items were taken from her desk; (4) the locks on her office had been changed and she was not allowed to close her office door; and (5) she was chastised by superiors and ostracized by co-workers, did not "rise to the level of material adversity but instead fall into the category of 'petty slights, minor annoyances, and simple lack of good manners.'"³¹ Similarly, in Escalante v. Holder, the Western District of Texas determined the plaintiff was subjected to twenty-six discrete events falling into four categories: "(1) unwarranted comments and rude behavior . . .; (2) temporary change of schedule, the three and one half week-period in which Plaintiff worked weekends and some evenings and added duty assignments when Plaintiff was asked to help with the official count; (3) Plaintiff's not attending a training conference; and (4) an investigation into Plaintiff's alleged breach of policy by releasing confidential information and her temporary transfer to the religious services unit." The court concluded that these allegations, even when considered collectively, did not alter the terms and conditions of the plaintiff's employment, and therefore did not create a hostile work environment.³²

In this case, Plaintiff bases her hostile work environment claim on: (1) the conduct of Darlene Smith, Plaintiff's co-worker who allegedly laughed and glared at Plaintiff each time Plaintiff was denied a promotion;³³ (2) Plaintiff's office being moved from the sixth floor to the fourth floor;³⁴ (3) Plaintiff's not being invited to the 2017 Thanksgivingluncheon;³⁵ (4) Plaintiff's not being asked to participate in the office's breast cancer awareness promotion, "Pink Day";³⁶ (5) Plaintiff's being isolated from her co-workers; and (6) other employees being instructed not to talk to Plaintiff.³⁷ Like the plaintiffs' claims in WC & M Enterprises and Escalante, these allegations amount to the kinds of "petty slights" and "minor annoyances," the Fifth Circuit has cautioned do not alter the terms and conditions of employment,³⁸ and, as a result, do not create a hostile work environment. DHH is entitled summary judgment on Plaintiff's retaliatory hostile work environment claim.

B. DHH is entitled to summary judgment on Plaintiff's retaliation claim

Plaintiff alleges that, between March 27, 2015 and December 5, 2016, she was denied promotional opportunities in retaliation for having filed grievances, filed Equal Employment Opportunity Commission ("EEOC") charges, and initiated lawsuits against DHH.³⁹

To establish a prima facie case...