Opinion
CIVIL ACTION NO: 01-3118, SECTION: "C" (4)
November 14, 2002
ORDER AND REASONS
On October 16, 2002, the defendants, the City of New Orleans and Mayor Marc H. Morial, filed a Motion for Summary Judgment (doc. # 35) seeking a dismissal of the plaintiff's claims for her failure to present a genuine issue of material fact for trial. On October 24, 2002, the defendant, Great Expectations Foundation, Inc., also filed a Motion for Summary Judgement Pursuant to FRCP Rule 56(b) and Alternatively Pursuant to FRCP Rule 50 (doc. # 42) seeking a dismissal of the plaintiff's claims for her failure to present a genuine issue of material fact for trial. The plaintiff opposes both motions.
This matter was referred to the undersigned United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon the written consent of the parties. I. Background
Rec. Doc. No. 13.
The plaintiff, Karen Chustz, filed the instant complaint against the defendants, City of New Orleans, Mayor Marc Morial, and Great Expectations, Inc. ("GEF") alleging discrimination based on gender in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000(e) and her rights to Equal Protection.
A. City of New Orleans and GEF
The City of New Orleans is the grantee of federal funds for the Healthy Start Project which is a nationwide initiative to reduce the infant mortality rate in specific target areas within the City. The Healthy Start Project is a federal program funded through the United States Department of Health and Human Services Healthy Start Initiative. The Healthy Start Project began as a demonstration project for the Department of Health and Human Services and targeted cities with the highest infant mortality rates. The City of New Orleans was initially funded in 1991 as one of fifteen cities selected to demonstrate that the Healthy Start Project could reduce the infant mortality rate by fifty percent over a five year period, reduce low birth rate in infants, and improve the health status of mothers and children in the City of New Orleans.
Rec. Doc. No. 35, City of New Orleans and Marc Morial's Motion for Summary Judgment, Exhibit. A.
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit C, Deposition of Thelma Harris French, p. 7.
Each city that was part of the Healthy Start Project formed a foundation aimed at sustaining the Healthy Start initiative. As its demonstration period came to an end, the City of New Orleans and the Great Expectations Advisory Council sought to create a foundation that would sustain the Healthy Start initiative in New Orleans. In 1996, the City of New Orleans and the Great Expectations Advisory Council formed GEF. GEF was formed as a private, non-profit organization in the City of New Orleans focused on managing New Orleans' Healthy Start Project. GEF and the City of New Orleans, thereafter entered into a Cooperative Endeavor Agreement to administer the Healthy Start Initiative in collaboration with the Medical Center of Louisiana at New Orleans ("MCLNO").
Id. at p. 11.
Rec. Doc. No. 35, City of New Orleans and Marc Morial's Motion for Summary Judgment, Exhibit. A.
According to its Articles of Incorporation, GEF was formed for charitable and educational purposes, including: improving birth outcomes and reducing infant mortality rates, improving health care delivery, improving social and personal conditions contributing to infant mortality, empowering the community to change the circumstances that contribute to infant deaths and related problems, giving all infants a healthy start, promoting community development contributing to the sustainability of GEF, developing community solutions and services which address adolescent pregnancy, providing programs that cultivate male responsibility, and providing services which contribute to developing strong family units. The Articles further indicate that the management of GEF shall be vested in a Board of Directors consisting of between five and fifteen members designated by the Bylaws of GEF.
Rec. Doc. No. 42, GEF's Motion for Summary Judgment, Exhibit A.
According to GEF's Bylaws, the Mayor of New Orleans appointed eight members and MCLNO appointed three members to the initial Board of GEF. Successors to the initial board members were elected by a majority vote of the Board of Directors. The Board of Directors constitute the entire voting membership of GEF and each Board member serves a term of three years. The directors were required to perform their duties in good faith, in the best interest of GEF and with the care of a reasonably prudent person. Further, the Bylaws provided that the Board shall appoint an Executive Director who, at a minimum, has a masters level degree and significant experience in health care delivery services. B. Karen Chustz
These initial votes were required to have been made prior to September 30, 1997.
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit J.
Id.
This claim arises out of the board's decision to hire Stephen Glaude to the position of Executive Director rather than the plaintiff, Karen Chustz. Chustz received a bachelor's degree from Loyola University in 1991. Thereafter, she attended Southern University of New Orleans and received a Masters Degree in Social Work in 1994. Upon graduating from Southern University, the plaintiff was employed as a case manager with the No AIDS Task Force where she coordinated the care of one hundred AIDS patients. During her employment with the No AIDS Task Force, she was offered a position, which she accepted, with Planned Parenthood, Inc., a company with which she had worked while attending Southern University. While working at Planned Parenthood, she helped to establish a HIV Services program.
Id. at Exhibit A, p. 7.
Id. at Exhibit A, p. 7-8.
In 1996, after working with Planned Parenthood for two years, Chustz was hired by Dialysis Clinic, Inc. as a medical social worker. Shortly thereafter, Dialysis Clinic promoted her to the position of Director of Social Services where she served as a supervisor of three employees. Two years later, she saw an Executive Director position at GEF advertised in the local newspaper. After applying for the position by submitting a cover letter and resume, the plaintiff was interviewed by several members of the GEF Board. The plaintiff, however, was not selected for the position. Instead, the Board selected another female applicant, Deborah Frazier.
Id. at Exhibit A, p. 12-14.
The plaintiff is not certain of the number of Board members that interviewed her, however she was sure that there were at least four, including Henry Dillion, Sheila Webb, Marlin Gusman, Thelma French and Cynthia Matherne Id. at Exhibit A, p. 15-16.
Id. at Exhibit A, p. 21.
Frazier served as Executive Director between 1999 and 2000.
Subsequently, the Board offered the plaintiff a position as Director of the Teen Pregnancy Prevention Initiative at GEF. The plaintiff accepted the position and worked under the direction of Deborah Frazier. As Director of the Teen Pregnancy Prevention Initiative, the plaintiff supervised four employees and administered GEF's teen pregnancy prevention program.
In September, 1999, Deborah Frazier created the position of Chief Program Officer and promoted the plaintiff to fill that position. As Chief Program Officer, the plaintiff was responsible for overseeing all programs of the foundation, implementing day-to-day programs under the Healthy Start model, writing grants, seeking and applying for funding, training and developing GEF staff, and supervising GEF site administrators.
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit A, p. 25.
During her tenure, Frazier was often away from her office. On such occasions, the plaintiff took on Frazier's duties of Executive Director and was referred to as "Interim or Acting Executive Director." In January, 2000, Deborah Frazier notified the Board of GEF that she was planning to resign from her position as Executive Director of GEF. On August 11, 2000, Frazier officially resigned as Executive Director.
Id. at Exhibit D, p. 17-18.
Several months prior to Frazier's resignation, GEF posted several advertisements for the position of Executive Director. The advertisements indicated that the position required a degree in Public Health Administration, Health Systems Administration, or Business Administration. It also required five to ten years experience working with government programs in an executive management position, experience in grant writing and preparation, and experience working with the public. It further required proven leadership skills in maternal and child health issues, administration and supervision of staff, and knowledge of fiscal administration and fund development. It also indicated that a Master's degree was preferred and requested that resumes be submitted by March 24, 2000.
Rec. Doc. No. 42, GEF's Motion for Summary Judgment, Exhibit F.
The plaintiff did not apply for the Executive Director position upon learning that GEF was seeking applications. However, the position was held open due to a lack of qualified candidates and GEF again advertised for the position. Upon the suggestion of Frazier, the plaintiff applied for the position in June, 2000.
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit A, p. 32.
Thereafter, the plaintiff was interviewed by Joy Slocum, Dan Williams, Wilbert Thomas and Gail Gibson, all members of the selection committee of the Board of Directors of GEF. Four other applicants, for the Executive Director Position, Stephen Glaude, Fran Lawless, Dianne Mandeville and Angelique White, were also interviewed by the selection committee. Sometime during the interview process, Dan Williams Chairman of the Board of GEF and a member of the selection committee, referred to the applicants, which included four women, as "scrumptious and delicious."
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit O.
Wilbert Thomas did not participate in the interview of Lawless, Mandeville and White. See id.
Rec. Doc. No. 42, GEF's Motion for Summary Judgment, Exhibit K, Deposition of Dan Williams, p. 33-34.
The selection committee assessed and scored the applicants in five categories including: basic requirements, leadership/management, collaboration/partnership, public health and communication skills. Each selection committee member scored the applicants on a scale of one to five, with five being the highest rating and one being the lowest rating. Each applicant could receive a total of seventy points.
The selection committee members participating in an interview would total up each applicants score then divide the total points received by the number of possible points (70) in order to come up with an average score. Following the interviews, the selection committee averaged the scores and Stephen Glaude ranked first having received 65 total points or 93% of the total points. Fran Lawless ranked second receiving 53 total points or 77% of the total points and Angelique White finished third having received 48 points or 69% of the total points. The plaintiff ranked fourth having received 47 total points or 67% of the total points and Dianne Mandeville ranked last receiving 42 points or 62% of the total points.
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit O.
Id.
In August, 2000, the Board of GEF sent a letter to the City of New Orleans submitting the names of the top three applicants and recommending Stephen Glaude to fill the position of Executive Director. On August 21, 2000, Dan Williams, Chairman of the Board of GEF, informed the plaintiff by letter that she had not been selected for the position. On September 7,2000, after being passed over for the Executive Director position, the plaintiff wrote the Board of GEF requesting that she be compensated for the duties she performed as the "Interim or Acting Director." Her request was granted and she received $7,500 from the GEF Board. C. Stephen Glaude
Id. at Exhibit N.
Id. at Exhibit M.
Id. at Exhibit A, p. 89.
On August 21, 2000, Dan Williams, who had worked with Glaude in several other capacities, selected Stephen Glaude for the position of Executive Director of GEF. Glaude was the first male to serve as Executive Director of GEF. Prior to Glaude, Deborah Frazier and Marsha Broussard served as Executive Director of GEF.
Id. at Exhibit B, p. 4-9.
Id. at Exhibit A, p. 87.
Glaude's resume indicates that he did not obtain a post-graduate degree but did obtain a Bachelor's of Science in Community Mental Health from Morgan State University in 1977. Prior to being selected as Executive Director of GEF, Glaude served as a Deputy Assistant Secretary of the United States Department of Housing and Urban Development between 1989 and 1990. There he managed federal funds and national community development and housing programs. He also served as the Deputy Under Secretary for Intergovernmental Relations in the United States Department of Housing and Urban Development between 1990 and 1992. While in that position he served as liaison to state and city officials.
Rec. Doc. No. 42, GEF's Motion for Summary Judgment, Exhibit G.
Thereafter, between 1992 and 1993, Glaude worked with the Office of National Drug Policy where he worked with the nationwide demand reduction efforts. Glaude served as President and Chief Executive Officer of the National Congress for Community Economic Development ("NCCED") between 1993 and 1997. There he engaged in fundraising, public education, legislative affairs, financial management and staff development. He was terminated from his position with NCCED on January 10, 1997 as a result of violating a "last chance agreement" entered with NCCED for allegedly violating a substance abuse policy.
Id.
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit W.
Between 1997 and 2000, Glaude was the President and Founder of SG and Associates, a marketing lobbying, government relations and cooperative development firm serving non-profit and for-profit companies. While with SG and Associates in 1999, Glaude worked with Deborah Frazier and GEF as a consultant and conducted strategic planning for several GEF community projects.
Id. at Exhibit D, p. 29-30.
Glaude began working with GEF on October 4, 2000. Soon thereafter, the plaintiff, still serving as Chief Program Officer of GEF, took a vacation that she had planned several months prior. Prior to leaving for her vacation, the plaintiff provided Glaude with a detailed memorandum of pending projects and promised to meet with him upon her return. The plaintiff returned from her vacation on October 8, 2000, and scheduled to meet with Glaude. Glaude, however, cancelled the meeting. Several days later, Glaude terminated Humberto Suazo, the accountant and Chief Financial Officer of GEF.
Id. at Exhibit A, p. 96.
Id. at Exhibit A, p. 97.
The plaintiff and Glaude met several days later. During their meeting, Glaude asked the plaintiff to assume Suazo's duties. The plaintiff informed Glaude that she did not have an accounting background and thus could not perform those duties. On October 19, 2000, without warning, Glaude terminated the plaintiff from her position as Chief Program Officer. However, Glaude did not provide any reasons for the plaintiff's termination.
Id. at Exhibit A, p. 102-03.
Id. at Exhibit A, p. 95.
Two months after beginning work with GEF, Glaude requested a leave of absence "to receive treatment from a doctor." Once Glaude's attendance became erratic, GEF conducted an internal investigation. As a result of being placed on notice by several people and talking to Glaude himself, the Board learned that Glaude had a substance abuse problem. Although he was never disciplined for his actions, the Board requested that Glaude resign.
Id. at Exhibit B, p. 26.
Glaude was allegedly addicted to crack-cocaine. Id. at Exhibit B, p. 29-30.
Six months after assuming the Executive Director position at GEF, Glaude resigned on March 29, 2001. In his letter of resignation, Glaude stated that he was resigning because the position at GEF and his life in New Orleans had not been what he expected. As a result, he thought it was in his best interests to end his employment. However, at the bottom of the typed letter of resignation, Glaude stated that if there was a way to work out a probation period, he would like to continue to serve. Joyce Scardino, Acting Human Resources Director of GEF, issued a termination report indicating that GEF would not rehire Glaude due to his "personal problems." D. The Plaintiff's Claims
Id. at Exhibit S.
Id.
Id.
The plaintiff, Karen Chustz, filed the instant complaint against the defendants, City of New Orleans, Mayor Marc Morial, and Great Expectations, Inc. ("GEF") on October 16, 2001 alleging discrimination based on gender in violation of Title VII, of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, and her rights to Equal Protection. She contends that Glaude was unqualified for the Executive Director position and terminated her because of her gender. She also claims that GEF's Executive Director search process was inconsistent in that six board members served on the interviewing committee but the number of board members attending the interviews of each applicant varied.
The defendants, the City of New Orleans and Mayor Marc Morial, filed a motion seeking a dismissal of the plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. They contend that the plaintiff has failed to present any evidence of sex discrimination in the selection of the Executive Director of GEF sufficient to create a triable issue of material fact. They also contend that the plaintiff has failed to establish that Mayor Morial or the City of New Orleans participated personally in the selection process or took any action to discriminate against her. They further contend that Mayor Morial is entitled to qualified immunity against civil suit for actions taken in the course and scope of his duties as a public official.
The defendant, GEF, filed a motion seeking a dismissal of the plaintiffs claims pursuant to Rules 50 and 56 of the Federal Rules of Civil Procedure. GEF contends that the plaintiff has failed to establish that GEF's decision to hire Glaude was motivated by gender bias and has failed to provide any direct evidence of discrimination. GEF also contends that because each of the Executive Directors prior to Stephen Glaude were female and because the plaintiff was outranked by other female applicants for the Executive Director position, the plaintiff has failed to provide any indirect evidence of gender discrimination as required to establish a prima facie case of discrimination.
The plaintiff opposes both motions contending that she has presented sufficient evidence to establish a genuine issue of material fact. She contends that she has established a prima facie case of gender discrimination by establishing that although she was qualified for the Executive Director position, GEF selected Glaude, a less qualified applicant. The plaintiff also contends that GEF was an agent of the City of New Orleans and, as such, is responsible for the actions of GEE.
II. Legal Standard A. Rule 56(c)
Summary Judgment is proper if the evidence shows the existence of no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party 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. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A party is entitled to Summary Judgment only if the pleadings, depositions, answers to interrogatories, admissions and affidavits before the court at the time of Summary Judgment show that there is no genuine issue of material fact. See Fields v. City of Southern Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Once the moving party carries its burden of proving that there is no material factual dispute, the burden shifts to the nonmovant "to show that Summary Judgment should not lie." Hopper v. Frank, 16 F.3d 92, 96 (5th Cir. 1994). While the Court must consider the evidence with all reasonable inferences in the light most favorable to the nonmovant, the nomnoving party must come forward with specific facts showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." See id.
The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions, on file,' designate `specific facts showing that there is a genuine issue of fact for trial.'" Celotex Corp., 477 U.S. at 324. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. See Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir. 1995); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994).
B. Rule 50
Under Rule 50(a)(1) of the Federal Rules of Civil Procedure "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient basis for a reasonable jury to find for that party on an issue," then a court may "determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue." Fed.R.Civ.P. 50(a)(1). Further, "motions for judgment as a matter of law may be made at any time before submission of the case to the jury," and are to "specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Fed.R.Civ.P. 50(a)(2).
In order to create a jury question on an issue, "there must be a dispute in the substantial evidence, that is, evidence which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions." Chaney v. New Orleans Pub. Facility Management, 179 F.3d 164, 167 (5th Cir. 1999). "[A] mere scintilla of evidence is insufficient to present a question for the jury" and even if the "evidence is more than a scintilla . . . some evidence may exist to support a position which is yet so overwhelmed by contrary proof as to yield a directed verdict." Id. (citations omitted).
In evaluating the defendants' motion for judgment as a matter of law, this Court must "view the . . . record in the light most favorable to [a plaintiff], drawing all factual inferences in favor of . . . [a plaintiff], and leaving credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts to the jury." Conkling v. Turner, 18 F.3d 1285 (5th Cir. 1994), appeal after remand, 138 F.3d 577 (1998) (citations omitted).
III. Gender Discrimination Claim
The plaintiff claims that she was not hired as Executive Director of GEF because of her gender. She also claims that she was terminated from her position as Chief Program Officer because of gender. She claims that these actions violated Title VII and the Equal Protection Clause.
Regardless of the existence of a Title VII remedy, the plaintiff may seek redress for gender discrimination through an independent source such as the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Mentor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986); Davis v. Passman, 442 U.S. 228, 234-35 (1979); Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 550 (5th Cir. 1997). The substantive elements of a claim of gender discrimination under the Equal Protection Clause are virtually identical to that of a Title VII claim of gender discrimination. See, e.g., Southard, 114 F.3d 539, 550 (5th Cir. 1997); Cervantez v. Bexar County Civil Serv. Comm'n, 99 F.3d 730, 734 (5th Cir. 1996) ("[W]e have on numerous occasions recognized that § 1983 and Title VII are parallel causes of action"); Wallace v. Texas Tech. University, 80 F.3d 1042, 1047 (5th Cir. 1996) (applying same prima facie test to discrimination claims under Title VII and § 1983).
To survive summary judgment on these claims, the plaintiff must make a showing sufficient "to establish the putative existence of every element that is essential to her case." Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1084-85 (5th Cir. 1994) (citation omitted). To do this, she must establish a prima facie case of discrimination. Id. at 1085. If she does not, "there can be no genuine issue as to any material fact, [because] a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. (citation omitted). A plaintiff can establish a prima facie case under Title VII by either direct or indirect evidence of discrimination. Id.
A. Direct Evidence
A plaintiff can establish a prima facie case of employment discrimination if "there is direct evidence that an employer placed substantial negative reliance on an illegitimate criterion in reaching an employment decision . . . ." Id. 1085. Direct evidence is that which if believed, "proves the fact of discriminatory animus without inference or presumption." Id., see also Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir. 1995). The Court finds that the plaintiff has produced no direct evidence of gender discrimination by the defendants.
The Fifth Circuit has found that a supervisor's open and routine use of racial slurs "constitutes direct evidence that racial animus was a motivating factor . . . ." Davis, 14 F.3d at 1085 (citing Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993)). Further, the Supreme Court has held that statements describing a partner as "macho", "overcompensated for being a woman", needing to "take a course at charm school", and advising her to "walk more femininely, talk more femininely, dress more femininely . . . and wear jewelry", directly suggest the existence of bias, and no inference is necessary. Davis, 14 F.3d at 1085 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989)). The Fifth Circuit went on to state that the above offending comments "cannot not reasonably be interpreted as anything other than a reflection of bias — either racial or gender-based." Davis, 14 F.3d at 1085.
The evidence adduced by Chustz in the instant case shows that during her interview for the Executive Director position, one of the members of the selection committee, Wilbert Thomas, answered a cell phone call and carried on a conversation for approximately five minutes. She contends that these actions show that Thomas, who scored her much lower than the other members of the selection committee, had very little respect for her as a woman. The plaintiff further contends that she was more qualified for the position of Executive Director than Glaude and was later terminated by Glaude without justification.
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit A, p. 66-67.
The plaintiff also provides evidence that Dan Williams, Chairman of the Board of GEF, referred to the applicants as "scrumptious and delicious." In fact, Williams admits that he may have referred to two of the applicants as "scrumptious and delicious." Williams further states that he used such terms as adjectives to describe the applicants as "a good selection of fruit, fruity people." There was, however, only one male applicant, Glaude.
Rec. Doc. No. 42, GEF's Motion for Summary Judgment, Exhibit K, Deposition of Dan Williams, p. 33-34.
Id.
In Davis, the Fifth Circuit found that notes made by an interviewer in the margin of an evaluation form describing the applicant and the plaintiff's accusations that he surveyed her "from the neck down", was not compelling. Davis, 14 F.3d at 1086. The court went on to address the interviewer's question concerning the applicant's ability to supervise and handle disputes with and among men. Id. While the Fifth Circuit conceded that it raised some specter of gender consciousness, it concluded that it certainly did not, standing alone, indicate gender animus. Id.
Here, the Court finds that whether Williams' statement, coupled with the information considered in GEF's selection process, suggests gender animus is a question of material fact. Thus, the Court finds that there are genuine issues of material fact as to whether there is direct evidence of the plaintiff's claims of gender discrimination.
B. Indirect Evidence
There is a three step burden-shifting process for establishing a prima facie case by using indirect evidence. McDonnell Douglas v. Green, 411 U.S. 792 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). Those steps are: 1) the plaintiff must prove by a preponderance of the evidence a prima facie case of disparate treatment; 2) if the plaintiff is successful, the burden shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its decision; and 3) if the defendant carries this burden, the plaintiff may attempt to demonstrate that the defendant's proffered explanation is pretextual. Burdine, 450 U.S. at 253 (citing McDonnell Douglas, 411 U.S. at 802).
To establish a prima facie case of gender discrimination, the plaintiff must show that 1) she is a member of a protected group; 2) she applied for the position of Executive Director; 3) she was qualified for that position when she applied; 4) she was not selected for that position; and 5) after she was not hired, the position either remained open or a male was hired to fill the position. Davis, 14 F.3d at 1087 (citing McDonnell Douglas, 411 U.S. at 802).
Although the previous Executive Directors of GEF were female, the Court finds that the plaintiff has submitted sufficient evidence to establish a prima facie case. Chustz is a member of a protected group, she applied for the position, she met the minimum qualifications, she was not selected, and the person hired by GEF was a man.
Once a prima facie case is constructed, a presumption of discrimination arises which the defendant must refute by articulating a legitimate, nondiscriminatory reason for the adverse employment decision. McDonnell Douglas Corp., 411 U.S. at 802. If such a reason is articulated that would support a finding that the action was nondiscriminatory, the inference of discrimination raised by the prima facie case disappears. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993). The defendants have refuted the presumption of discrimination by articulating nondiscriminatory reasons for their actions, specifically that Glaude was also qualified for the position and scored higher during the interview process.
The selection of a better qualified applicant is a legitimate, nondiscriminatory reason for selecting one applicant over another. Price v. Fed. Express Corp., 283 F.3d 715 721 n. 2 (5th Cir. 2002) (quotation omitted). However, the plaintiff contends that Glaude was not better qualified, that in fact, she was the best qualified applicant. In order to prove that the defendants' claim was pretextual, the plaintiff must present evidence demonstrating that discrimination lay at the heart of the employer's decision." Id. at 720. If the plaintiff can prove that the defendants' articulated reason is false, then coupled with the fact that she has established a prima facie case, the trier of fact could conclude that the employer discriminated against her. Id.
Chustz makes two primary arguments to support her contention that the defendants' articulated reason for its employment decision was pretextual. First, she claims that she was better qualified than Glaude, thereby demonstrating pretext. Second, she points to several of the statements made by the selection committee members and the actions of Glaude to show that the real reason for the decision was because of her gender.
The Fifth Circuit has held that "a plaintiff can take her case to a jury with evidence that she was clearly better qualified" than the applicant selected for the position at issue. Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992); see also EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1444 (5th Cir. 1995) ("A factfinder can infer pretext if it finds that the employee was `clearly better qualified' (as opposed to merely better or as qualified) than the employees selected."). "However, this evidence must be more than merely subjective and speculative." Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996).
The disparity between the two candidates must be great because the Fifth Circuit has stated that the evidentiary standard for this issue requires the "disparities in qualifications [to] be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question." Deines v. Texas Dept. of Prot. Reg. Servs., 164 F.3d 277, 280-81 (5th Cir. 1999). Moreover, in pursuing this inquiry, the Fifth Circuit noted that "the judicial system is not as well suited by training and experience to evaluate qualifications . . . in other disciplines as are those persons who have trained and worked for years in that field of endeavor for which the applications under consideration are being evaluated." Louisiana Office of Community Servs., 47 F.3d at 1445.
Applying this standard to the instant case, the Court finds that there are genuine issues of material fact as to the plaintiff's Title VII claims for gender based discrimination. The GEF Bylaws provide that the Board shall appoint an Executive Director who, at a minimum, has a masters level degree and significant experience in health care delivery services. Upon Deborah Frazier's resignation in 2000, GEF advertised for the Executive Director position.
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit J.
The advertisements, which were not in full compliance with the Bylaws, indicated that a Master's degree was preferred. It stated that the position required a degree in Public Health Administration, Health Systems Administration, or Business Administration. It also required five to ten years experience working with government programs in an executive management position, experience in grant writing and preparation, and experience working with the public. It further required proven leadership skills in maternal and child health issues, administration and supervision of staff, and knowledge of fiscal administration and fund development.
Rec. Doc. No. 42, GEF's Motion for Summary Judgment, Exhibit F.
A comparison of the resumes of Chustz and Glaude reveals that both Chustz and Glaude possessed the required work experience. However, Glaude did not posses the leadership skills in maternal and child health issues as required. This is evidenced not only by Glaude's resume, but also by a letter written by Glaude to Dan Williams prior to his being selected as Executive Director of GEF. In that letter, Glaude stated that he was interested in the Executive Director position and that he has "much to learn about the specifics of infant mortality."
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit Q.
The comparison further reveals that Glaude possessed a Bachelor's of Science in Community Mental Health but did not possess a Masters Degree. It is unclear whether the Bachelor of Science degree held by Glaude met the minimum requirements of the position. Although Chustz had the required, or at least preferred, Masters Degree, she was not selected for the position, and was in fact, rated much lower than Glaude, despite the fact the he did not meet all the requirements of the position. The Court further notes that the record evidence suggests that Glaude was hired for the Executive Director position although several of the GEF Board members were aware of the fact that he suffered with an addiction to crack cocaine and lost his position with the National Congress of Community Economic Development as a result of that addiction.
Id. at Exhibit G.
Rec. Doc. No. 38, Pl's Opposition to Motion for Summary Judgment, Exhibit D, p. 34-36; Exhibit H p. 17-18.
These facts, along with Wilbert Thomas' treatment of the plaintiff during her interview and Dan Williams' comments that the applicants were "scrumptious and delicious", present sufficient evidence for a reasonable trier of fact to determine that GEF's actions were based on gender. Therefore, viewing the facts in a light most favorable to the plaintiff, the Court finds that there are genuine issues of material fact as to the plaintiff's claims for gender based discrimination, including, but not limited to whether the plaintiff was not hired and/or terminated because of her gender.
Having determined that a genuine issue exists as to whether GEF discriminated against the plaintiff, the Court will assess whether a genuine issue exists as to the liability of Mayor Morial and the City of New Orleans.
IV. Claims against Mayor Morial
The defendants, the City of New Orleans and Mayor Marc Morial, seek dismissal of the plaintiffs claim against Mayor Morial contending that the plaintiff has failed to allege any facts that show that Mayor Morial acted personally to deny her the position sought, discriminated against her or caused any injury of which she complained.
The plaintiff, however, alleges that Mayor Morial appoints eight of the fifteen Board members that oversee the operations of Great Expectations Foundation, Inc." She also states that Marc Morial has final consideration and approval in the selection of the Executive Director of Great Expectations Foundation, Inc.
A. Title VII
The Court finds that even if the Court finds that the City of New Orleans qualifies as an "employer" for Title VII purposes, Chustz's argument that Mayor Morial is liable for violating Title VII is precluded by Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998). It is well settled that liability under Title VII is directed solely at the employer as opposed to the employees whose acts violate its mandates. Albright v. City of New Orleans, 2001 WL 725354, *8 (E.D.La. 2001). In Huxkabay, William Huckabay, a white employee of a Texas county government, sued the county's commissioner, Edward Moore, in his individual and official capacities under Title VII for instituting racist employment practices in general and for discriminating against him in particular. In affirming the district court's grant of summary judgment in favor of Moore on the Title VII claim against him as an individual, the Fifth Circuit wrote:
A supervisor is considered an "employer" under title VII if he wields the employer's traditional rights, such as hiring and firing. And a county commissioner such as Moore, who possesses almost total executive authority within his precinct as well as legislative authority as a member of the commissioners court, certainly wields sufficient authority to be considered an employer. This power is necessarily exercised, however, by a person who acts as an agent of the corporate or municipal body he represents. Because the wrongful acts are performed in his official capacity, any recovery against that person must be against him in that capacity, not individually. Further, if Moore acted only in his individual capacity, he did not act as an "employer" and would not be liable under title VII to the extent that he acted individually. Thus, a public official cannot be held liable in his individual capacity under title VII.Id. at 241 (citations omitted),
Where a public employer is involved, the plaintiff can state no claim against the official who committed the discriminatory act in his individual capacity, and therefore, the doctrine of qualified immunity is inapplicable. Oden v. Oktibbeha County, Mississippi, 246 F.3d 458, 464-65 (5th Cir. 2001).
In addition, in Indest v. Freeman Decorating, Inc., 164 F.3d 258 (1999), the Fifth Circuit affirmed this Court's dismissal of the plaintiff's Title VII claims against her supervisor in both his individual and official capacities. As the Fifth Circuit noted, this Court "reasoned that it would be redundant for [a plaintiff] to sue both [her supervisor] in his official capacity and [her employer], because [the employer] would bear responsibility for the liability of either party through Title VII's incorporation of the principal of vicarious liability." Id. at 262. Thus, a party may not maintain a suit against both an employer and its agent under Title VII. See Harbin v. CII Carbon, L.L.C., 1999 WL 350161, *2-3 (E.D.La. 1999).
Therefore, because the plaintiff has filed the instant suit against Mayor Morial and the City of New Orleans, the Court dismisses the plaintiffs Title VII claims against Mayor Morial in his individual and official capacities.
B. Equal Protection and § 1983
Unlike Title VII which envisions no individual liability, section 1983 provides for a suit against "persons" and therefore a public official can be liable in his personal capacity for a constitutional violation unless shielded by qualified immunity. Harvey v. Blake, 913 F.2d 226, 228 (5th Cir. 1990) (citing Clanton v. Orleans Parish. Sch. Bd., 649 F.2d 1084 (5th Cir. 1981)). However, only the direct acts or omissions of government officials will give rise to individual liability under section 1983. See Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 534 (5th Cir. 1997) (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994) (en banc).
Here, the plaintiff has failed to present any evidence, direct or otherwise, that Mayor Morial took part in GEF's decisions as to her employment. As the plaintiff has failed to present any evidence that Mayor Morial participated in the decisions of GEF, the claims against him are dismissed.
V. Claims Against the City of New Orleans
The defendants, the City of New Orleans and Mayor Marc Morial, seek dismissal of the plaintiff's claim against the City of New Orleans contending that the plaintiff has failed to allege any facts that show that the City of New Orleans acted to deny her the position sought, discriminated against her or caused any injury of which she complained.
The plaintiff, however, contends that GEF was an agent of the City as evidenced by the Cooperative Agreement between the two cities. She contends that the City was the grantee of the Healthy Start Program grant and as such, was responsible for the administration and programming under the Healthy Start Program. The plaintiff contends that these facts are sufficient to present to a jury the question of whether an agency relationship existed between the two and if the City is equally responsible for the acts of GEF.
A. Title VII
Title VII prohibits discrimination by an "employer" and allows employees to sue their employers for discriminatory employment decisions. See 42 U.S.C. § 2000e-2 (a), 2000e-5. An "employer" under Title VII is a "person in an industry affecting commerce who has fifteen or more employees . . . ." 42 U.S.C. § 2000e(b). A person "includes one or more individuals, governments, governmental agencies, [or] political subdivisions . . . ." 42 U.S.C. § 2000e(a).
Here, it is clear that the Board of GEF was responsible for hiring, promoting, and establishing its employees' wages. Thus, GEF was Chustz's employer for Title VII purposes. See Oden v. Oktibbeha County, Mississippi, 246 F.3d 458, 465 (5th Cir. 2001). The City of New Orleans' only responsibility was to approve GEF's budget and to provide the necessary funding. As such, it does not qualify as an "employer" and may not be held liable for purposes of Title VII. Oden v. Oktibbeha County, Mississippi, 246 F.3d 458, 465 (5th Cir. 2001) (holding that County could not be liable under Title VII claim brought by deputy against Sheriff where County's only responsibility was to approve the Sheriff's budget and allocate the necessary funds); Hall v. Delaware Council on Crime and Justice, 780 F. Supp. 241 (D.Del. 1992) (holding that because the nonprofit organization from which employee was discharged received substantial funding from umbrella charitable organization did not mean that the two organizations were single employer for purposes of Title VII).
Further, the plaintiff has not provided any evidence to suggest that the City of New Orleans participated in GEF's decisions regarding her employment. Courts may not indiscriminately assess damage awards against "persons" and entities that are not responsible for an employer's unlawful discriminatory conduct. See Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998) (holding that only employers are liable for unlawful conduct under Title VII).
The relationship between the City of New Orleans and GEF is primarily a monetary one. The City is the funding source of GEF but it does not supervise the hiring and firing of GEF personnel. As such, GEF is not an agent of the City of New Orleans. See United States v. Orleans, 425 U.S. 807 (1976) (holding that no agency relationship existed where Office of Economic Opportunity provided funds and imposed regulations of the recipients of its funds but did not supervise the recipients' daily operations); Gibson v. United States, 567 F.2d 1237 (3d Cir. 1977), cert. denied, 436 U.S. 925 (1978) (same). Therefore, the plaintiff's Title VII claims against the City of New Orleans are dismissed.
B. Equal Protection and § 1983
A municipality is liable "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999). (quoting Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978)). In other words, a municipality can only be held liable when the conduct violative of constitutional rights is directly attributable to the municipality through some sort of "official policy." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
Isolated unconstitutional actions by municipal employees will almost never trigger liability. Id. However, a single decision can constitute official policy when a final policymaker makes the relevant decision, and when that decision is within the sphere of the policymaker's final authority. See Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996).
The plaintiff bases her Equal Protection claim on the actions of GEF. However, as discussed supra, GEF does not qualify as an agent of the City of New Orleans. Further, the plaintiff has failed to present any evidence that suggests that the decisions of GEF qualify as an "official policy" or "custom" for purposes of section 1983. Therefore, the Court grants the City of New Orleans' Motion for Summary Judgment.
Accordingly,
IT IS ORDERED that the City of New Orleans and Mayor Marc Morial's Motion for Summary Judgment (doc. # 35) is GRANTED. IT IS FURTHER ORDERED that Great Expectations Foundation's Motion for Summary Judgement Pursuant to FRCP Rule 56(b) and Alternatively Pursuant to FRCP Rule 50 (doc. # 42) is DENIED. IT IS FURTHER ORDERED that the plaintiff's claims of gender discrimination brought pursuant to Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000(e), against Great Expectation Foundation, Inc. may proceed forward.