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holding that receipt of EEOC charge that described alleged discrimination was sufficient to satisfy statute's pre-suit notice requirements
Summary of this case from Notariano v. Tangipahoa Par. Sch. Bd.Opinion
CIVIL ACTION NO. 02-1085, SECTION "K"(5).
May 29, 2003.
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Doc. 30) filed by Jefferson Parish Hospital Service District No. 2, d/b/a East Jefferson General Hospital ("East Jefferson") seeking to dismiss all of plaintiff Joseph Legania's ("Legania") claims. The Court has reviewed the pleadings, memoranda, exhibits and the relevant law, and finds some merit in the motion.
Background
Joseph Legania was hired by East Jefferson on May 1, 2000, after interviewing with Leyton Braud, Vice-President of East Jefferson, with whom Legania had previously worked at LSU. Apparently, Braud found Legania's work to be exceptional and exceeding standards when he was placed on regular status at East Jefferson on September 20, 2000. Braud left East Jefferson in January of 2001 and Kim Radetich took over his position as Vice-President. On January 25, 2001, Radetich sent an e-mail to her employees, including Legania, to "make sure that 'before' you offer anyone a position or salary for an open position that it is approved by myself prior to the offer. I am currently discussing open positions with Dr. Peters and I want to make sure I am in the loop." (Defendant's Exhibit "Q" attached to Legania Dep. Exh. 2).
Legania apparently had some difficulties with a clerical employee who was under his supervision — Mary Lynn Joly. From approximately December 28, 2000 through February 22, 2001, plaintiff contends that there were four instances where he attempted to discipline this person over whom he had direct supervision. However, he contends that Joly went over his head to his supervisor to complain about his actions. Indeed, on at least one instance, February 22, 2001, the write-up of Joly executed by Legania was rescinded.
Apparently, the situation was so heated that Legania filed a complaint with the EEOC on February 28, 2001. In that document, he explained:
I am the immediate supervisor of a white, female employee who refuses to take a directive from me. No support is given from the HR Mgr., V.P., nor the Operations Mgr. Documentation is in my possession that shows communication between these four employees. As a result of this, I am under a lot of stress which has caused my pressure to rise. I am also unable to perform my duties at 100 percent, and am very cautious as to how to handle white employees.
(Defendant's Exhibit Y attached to Legania Dep., Exh. 2). However, apparently, no action on this complaint was ever taken by the EEOC. It is interesting to note, however, that plaintiff at that time expressed fear for his job.
Apparently in the midst of this imbroglio, as of January 30, 2001, allegedly two positions for an Operations Manager position became available. On February 6, 2001, Legania applied for this position. In a job description supplied by East Jefferson at Legania's deposition, the posting notes that a "[g]raduate of an accredited School of Nursing with five years experience preferred." However, at the end of the notice it further states "team members who have successfully completed six months in their current positions may submit a request to interview form to the personnel department." Legania submitted such a request and was interviewed; he was not given the position. Cynthia Dehghanpir was hired; she is a white female with a nursing degree.
See Part II of EEOC claim attached to plaintiffs Memorandum in Opposition.
Attached as Defendant's Exhibit B is a job description of this position. Legania maintained in his deposition that he had not seen this exact description.
Three months after Radetich's e-mail concerning hires, on April 17, 2001, Legania hired Kim Torbert as a patient account representative without following Radetich's instructions. The e-mail discussion of this occurrence begins with an e-mail by Legania to Radetich telling her of the hire. Radetich responded that she was "very happy to hear about this" but she reminded him that he needed "to run through" her what Legania was offering as pay. Radetich then penned, "If you have and I have forgotten PLEASE forgive me. But I do not recall. What is her starting pay and what will her duties be?" Legania replied "Sorry, starting pay will be 10.50 and duties research." (Defendant's Exh. R to Plaintiffs Dep. Exh. 2).
On May 1, 2001, Legania filed the formal charge of race and sex discrimination against East Jefferson under Title VII of the Civil Rights Act of 1964. In that charge he described the same course of conduct concerning employees under his supervision to bypass him. He also noted that he was denied selection as operations manager in January 2001. On May 2, 2001, a Notice of Charge of Discrimination was sent to East Jefferson.
Allegedly, the second position for operations manager remained upon for a period of time and was allegedly not filled as of April 29, 2001. It is not clear from the record whether it was filled after Legania's filing of the EEOC complaint; however, plaintiff does allege that he learned of it being awarded at 4:40 p.m. on May 8, 2001. The second operations manager's position was awarded to Joey Grub (white, female); however, she subsequently relinquished the position for a better one, allegedly opening this position on May 23, 2001. It was then filled by a male.
At that May 8th meeting, Legania was informed by Radetich that the second position was given to the another applicant. She also allegedly informed Legania that she was "disappointed" that he had filed the complaint and that subsequently "every thing would be strictly by the book." Legania interviewed Melissa Thompson for the position of Claims Analyst on June 2, 2001.
Legania maintains that he told her of the position and its duties; that she was not sure if she could be transferred to the position because of an outstanding disciplinary problem; and that she was to get back to Legania. On June 5, 2001, Thompson e-mailed Radetich advising that she had interviewed with Legania and accepted the position. On June 6, 2001, Legania was fired for refusal to obey a direct order of a superior (3rd occurrence). (Defendant's Exhibit "T" attached to Legania Dep. Exh. 2). It is highly contested by Legania that he actually offered Thompson the position.
On January 10, 2002, a right to sue letter issued. The subject suit was filed on April 11, 2002, in which he alleges:
(1) gender and race discrimination in two non-promotions for the position of Operations Manager;
(2) an Equal Pay Act Claim;
(3) disparate treatment in the undermining of his supervisory authority and intentionally keeping him uninformed in ways that affected his ability to work and other acts;
(4) retaliatory non-promotion for the second Operations Manager's position awarded May 4, 2001; and
(5) retaliatory discharge.
The subject Motion for Summary Judgment was filed on May 14, 2003. Defendant contends that because plaintiff failed to allege retaliation in his EEOC complaint, his retaliation claim fails based on this procedural default. East Jefferson contends that because Legania failed to provide written notice to it of his retaliation claim as required by La.R.S. 23:303, his state law claims are procedurally barred as well. Alternatively, East Jefferson contends that on the merits, the retaliation claim fails because plaintiff cannot rebut East Jefferson's nondiscriminatory reason for his discharge — that is disobeying Ms. Radetich's direct order not to hire an employee without obtaining her prior approval.
Defendant also contends that plaintiff fails as to the Equal Pay Act claim because he cannot show that he was paid less than one of his peers who is either of different race or gender.
With respect to the failure to promote claims, East Jefferson contends that because Legania can not prove that he had superior qualifications, these claims allegedly fail as well. Defendant alternatively claims that "the after acquired evidence doctrine" should apply to this case, McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 886-87 (1995). East Jefferson argues that because there is no genuine issue of fact (1) that Melissa Thompson sent to Kim Radetich an e-mail stating that plaintiff offered her a position, (2) that Ms. Radetich believed Ms. Thompson's e-mail plaintiff was in direct violation of her order, and (3) that disobeying a direct order of a supervisor is an action severe enough to warrant discharge, this Court should apply McKennon and limit plaintiffs recovery to the amount entitled to up to the point of his lawful discharge — June 5, 2001. It also argues in a single sentence that the court should hold that plaintiff is not entitled to an award of front pay as he has now obtained a job making more money.
Standard for Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment 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." Stults v. Conoco, 76 F.3d 651, 656, (5th Cir. 1996), (citing Skotak v. Tenneco Resins. Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial."Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied); Tubacex, Inc. v. MN Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where 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." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Finally, the court notes that the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
The court now turns to the merits of the defendant's motion with these standards in mind.
Retaliation Claims
Defendant seeks to dismiss the retaliation claims based on plaintiffs alleged failure to include retaliation as a claim in the EEOC filings. This argument is misplaced under the facts of this case. It is clear that the retaliation claims of Legania with respect to (1) his termination and (2) his being passed over for the second open position grew out of his earlier charges. The United States Court of Appeals for the Fifth Circuit made it clear in Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981), that "it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court." Id. at 414. See Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473 (5th Cir. 1991); Perez v. MCI World Corn Communications, 154 F. Supp. 932, 937-38 (N.D. Tex. 2001). Thus, there is no procedural bar to these retaliation claims as they arise out of an administrative charge that is properly before the court.
Likewise, as to the state law procedural bar argument, the Court finds no merit therein. Civil suits for discrimination are provided for by La.Rev.Stat. 23: 303(A), which states in relevant part:
A plaintiff who has a cause of action against an employer, employment agency, or labor organization for a violation of this Chapter may file a civil suit in a district court seeking compensatory damages, back, pay, benefits, reinstatement, or if appropriate, front pay, reasonable attorney fees, and court costs.
Subsection (C), upon which East Jefferson relies for the alleged procedural bar states:
A plaintiff who believes he or she has been discriminated against, and who intends to pursue court action shall give the person who has allegedly discriminated written notice of this fact at least thirty days before initiating court action, shall detail the alleged discrimination, and both parties shall make a good faith effort to resolve the dispute prior to initiating court action.
La.Rev.Stat. 23:303(C). The penalty for non-compliance is not set forth precisely in this statute. Magistrate Judge Jay Wilkinson of this court set forth a concise explication of the case law involving this statute in Trahan v. Lowe's Inc., 2002 WL 1560272 (E.D.La. July 12, 2002):
No Louisiana court has addressed the meaning of either Section 23:303(C) or its virtually identical counterpart in the Louisiana Civil Rights for Handicapped Persons Act, La.Rev.Stat. § 46:2256(B), [footnote omitted] which also does not by its express terms provide any penalty for noncompliance. However, decisions by various federal district courts in Louisiana that have interpreted these two notice provisions of Louisiana law have consistently held that a claim under either statute must be dismissed if the plaintiff failed to comply with the notice provision, unless the plaintiff had filed a charge of discrimination with the EEOC within the appropriate time period, which effectively accomplished the same goals as the statutory notice under state law. See Dunn v. Nextel So. Corp., No. 01-691-A, 2002 WL 1401673, at *1 (M.D.La. Jan. 8, 2002) (Parker, J.) (dismissing plaintiffs employment discrimination complaint without prejudice for failure to allege compliance with Section 23:303(C)); Brown v. Menszer, No. 99-0790, 2000 WL 1228769, at *2 (E.D.La. Aug. 23,2000) (Duval, J.) (rejecting plaintiffs argument that "vague verbal warning" could substitute for written notice under Section 46:2256(B) and dismissing plaintiffs handicap discrimination claim for failure) to comply with notice provision); Malakoff v. Alton Ochsner Med. Fd., No. 99-3603, 2000 WL 805232, at *2 (E.D. La. June 20, 2000) (Mentz, J.) (plaintiffs state law discrimination claim was "procedurally barred" by her failure to comply with Section 23:303(C)[and having not filed an EEOC claim]); McIntire v. Kimberly Clark Corp., No. 93-375, 1994 WL 321004, at * (E.D. La. June 28, 1994) (Beer, J.) (EEOC complaint that alleged only discrimination based on age failed to satisfy notice requirement of Louisiana Civil Rights for Handicapped Persons Act); cf. Pugh v. J.C. Penney, No. 95-3846, 1996 WL 263219, at *5 (E.D. La. May 15, 1996) (Wilkinson, M.J.) (plaintiffs pre-suit EEOC charge accomplished purposes of Section 46:2256(B) and precluded dismissal of state law handicap discrimination claim); Snear v. Turnbull Cone Baking Co., No. 93-2761, 1994 WL 34031, at *3-4 (E.D. La. Jan. 23, 1994) (Livaudais, J.) (compliance with EEOC procedures satisfied Section 46:2256(B) because defendant had notice of plaintiff's intent to sue and had sufficient time to make good faith effort to resolve the problem).Id at *6.
Considering that East Jefferson was sent notice of the EEOC claims on May 2, 2001, which set forth with sufficient particularity Legania's contentions, defendant had notice under La.Rev.Stat. 23:303(C). To require the dismissal of these claims without prejudice at this time would be counter-intuitive. If the notice was sufficient to support the claims under federal law, then the notice was sufficient to trigger notice as to the parallel state law claims. To hold otherwise would cause unneeded delay and not serve the ends of judicial economy. Thus, finding no procedural bar, the Court will now turn to the issue of whether summary judgment is appropriate with respect to the retaliation claims.
Title VII prohibits employers from discriminating against employees on the bases of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). As recently stated by the Fifth Circuit in Fabela v. Socorro Indep. School Dist., 2003 WL 1924624 (5th Cir. 2003):
A plaintiff alleging Title VII retaliation may establish her case for causation in one of two ways: she may either present direct evidence of retaliation, which is also know as the "mixed-motive" method of proving retaliatory motivation; or she may provide circumstantial evidence creating a rebuttable presumption of retaliation. Fierros v. Texas Department of Health, 274 F.3d 187, 192 (5th Cir. 2001); see Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1988). Usually, in the context of a retaliation claim, the employer refrains from expressly stating that an impermissible criterion influenced his decision to expose the plaintiff to an adverse employment action, and so direct evidence of an employer's allegedly retaliatory intent is rarely available. As a result, we have long recognized the well-trod path by which a plaintiff may demonstrate retaliatory intent through the use of circumstantial evidence and the famed McDonnell Douglas burden-shifting framework. Montemayor v. City of San Antonio, 276 F.3d 687 (5th Cir. 2001); Portis v. First Nat'l Bank, 34 F.3d 325, 328 (5th Cir. 1994); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Because of the general lack of availability of direct evidence of retaliatory intent, plaintiffs alleging retaliation most often must travel the less advantageous circumstantial evidentiary path. [FN6] Portis, 34 F.3d at 328.Id. at *4.
To establish a claim for retaliation under Title VII with circumstantial evidence the plaintiff must show:
(1) that he engaged in a statutorily protected activity;
(2) that he suffered adverse employment action; and
(3) that a causal connection existed between the protected activity and the adverse action.Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). Once the plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to present a non-discriminatory reason for the adverse employment action. Sherrod v. American Airlines. Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998). If the defendant can do so, the burden of production then shifts back to the plaintiff to demonstrate that the proffered reason is a pretext. Id. at 1122. At all times, however, the plaintiff has the ultimate burden of proof. Id. The plaintiff must produce evidence of a conflict that is substantial enough on the issue of retaliation to withstand a motion for summary judgment. Id. Evidence is substantial enough if it is of "such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions." Id.
In the case at bar, the Court finds that plaintiff has met his burden with respect to his prima facie case; an employee has engaged in activity protected by Title VII if he has made a charge or participated in an investigation, proceeding or hearing under Title VII. Grimes, 102 F.3d at 140. Legania was not promoted to the second Operations Manager position, and he was eventually fired — certainly meeting the second criteria. Finally, from the temporal nature of the firing, there is a prima facie case of linkage demonstrated. Likewise, defendant has set forth a reason which, if believed would support a finding that the challenged action was nondiscriminatory — that plaintiff had disobeyed a direct order by hiring Melissa Thompson without speaking to his superior.
However, plaintiff has certainly presented evidence of "such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions." It is far from clear that Legania actually offered Thompson the job. The "proof is Thompson's e-mail to Radetich. Legania denies that he offered Thompson the job If he did not, the reason for his firing could certainly be considered to be pretextual. As such, summary judgment on the retaliation claims must be denied.
Equal Pay Act Claim
In Count I of plaintiff s Complaint, he contends that East Jefferson has violated the Equal Pay Act of 1963, 29 U.S.C. § 206(d) by refusing to pay petitioner the same as female employees. Legania must demonstrate that the act has been violated, he must show that (1) that his employer is subject to the Act; (2) that he performed work in a position requiring equal skill, effort and responsibility under similar working conditions; and (3) he was paid less than the employee of the opposite sex providing the basis for comparison." George-Saad v. Texas Mut. Ins. C 195 F. Supp.2d 853, 857 (W.D. Tex. 2002)citing Chance v. Rice University, 984 F.2d 151, 153 (5th Cir. 1993). Plaintiff has not met this burden of proof. No documentary proof of unequal pay has been presented to the Court. Indeed, in his opposition to the Motion for Summary Judgment, plaintiff does not address this claim. As such, the Court finds this portion of the motion unopposed and will dismiss the equal pay claim.
Disparate Treatment
With respect to Legania's claim of disparate treatment based on the undermining of his supervisory authority and intentionally keeping him uninformed in ways that affected his ability to work and other acts, this claim must be dismissed. To establish a prima facie case of disparate treatment, the plaintiff must show that:
(1) he is a member of a protected class;
(2) he was qualified for the position;
(3) he suffered an adverse employment action; and
(4) others outside the class who were similarly situated were treated more favorably than he.Eugene v. Rumsfeld, 168 F. Supp.2d 655, 670 (S.D. Tex. 2001). Legania's claims of "undermining" his authority and lack of communication do not constitute an ultimate employment decision such as is required. "It is generally recognized that the employment discrimination statutes were designed to address ultimate employment decisions, not to scrutinize every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Id. citing Dollis v. Rubin, 77 F.3d 777, 780-81. Hiring, discharging promoting, compensating and granting leave are considered ultimate employment decisions. To allow a cause of action based on an action of less import would allow "every trivial personnel action" become the basis for a discrimination suit. Id. As such, the disparate treatment claim must be dismissed.
Gender and Race Discrimination Based on Non-Promotion
Plaintiff apparently alleges two theories of discrimination as regards the failure to promote him to the Operations Manager positions. First, East Jefferson failed to promote him based on his race and gender and secondly, it would appear that he claims that East Jefferson practices hiring techniques that create a "disparate impact." As to the first theory, race or gender discrimination, to make out a prima facie case, Legania must establish that:
The Court views these claims separately from the failure to promote as to the second operations manager position in retaliation for the EEOC claim.
(1) he belongs to a protected group;
(2) he was qualified for the position sought;
(3) he suffered an adverse employment action; and
(4) he was replaced by someone outside the protected class.Price v. Federal Express Corp., 283 F.3d 715 (5th Cir. 2002). A prima facie case has been made out by plaintiff, and East Jefferson has presented its legitimate nondiscriminatory reason for hiring Cynthia Dehghanpir, that is that she is a graduate of an accredited nursing school (which was a preferred qualification for the job) and was more qualified because of her experience in the Practice Management area (which is also mentioned as a requirement in the job description) and which Leyton Braud avers is an area in which she has more experience than Legania. As to the hiring of Joey Grub, East Jefferson contends that Grub was so qualified that before she took that position she was again promoted.
In order to defeat the motion for summary judgment with respect to this issue, Legania must prove that these reasons are pretextual; however, he may not simply demonstrate that he is similarly qualified. Rather, he must show that he is "clearly better qualified" for the position in question. Odom v. Frank, 3 F.3d 839, 845 (5th Cir. 1993). Indeed the Price court citing Odom stated "the losing candidate's qualifications must 'leap from the record and cry out to all who would listen that he was vastly — or even clearly — more qualified for the subject job.'" Price 283 F.3d at 723. Legania's qualifications do not meet that standard as to Dehganpir considering her nursing qualifications and her practice management. As to Grub, plaintiff contends simply that he is as qualified as Grub and presents no evidence that demonstrates that he is clearly more qualified than Grub. Thus, these claims must be dismissed as well.
Finally, the Court finds that plaintiffs "disparate impact" claim — to the extent that plaintiff seeks to recover based on that theory-fails. While disparate impact claims do not require proof of intent to discriminate, they focus on facially neutral employment practices that create such statistical disparities disadvantaging members of a protected group that they are "functionally equivalent, to intentional discrimination." Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000) citing Watson v. Fort Worth Bank and Trust, 108 S.Ct. 2777 (1988). "Plaintiffs must identify specific practices as being responsible for any observed disparities, and must conduct a systemic analysis of these employment practices in order to establish their case."Munoz, 200 F.3d at 299. Plaintiff has not presented any such evidence to the Court and as such, any disparate impact claim that may be urged by plaintiff shall be dismissed as well.
The After Acquired Evidence Defense
As noted above, East Jefferson seeks to preclude reinstatement and limit any recovery up to the point of Legania's discharge because Legania's "wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of discharge.McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 856-87 (1995). East Jefferson argues that because there is no genuine issue of fact (1) that Melissa Thompson sent to Kim Radetich an e-mail stating that plaintiff offered her a position, (2) that Ms. Radetich believed Ms. Thompson's e-mail plaintiff was in direct violation of her order, and (3) that disobeying a direct order of a supervisor is an action severe enough to warrant discharge, this Court should apply McKennon. As noted, these facts are at issue, precluding summary judgment in this regard. Likewise, as to defendant's single sentence arguing that plaintiff is not entitled to an award of front pay as he has now obtained a job making more money, the Court will defer ruling on this issue for proper proof to be adduced. Accordingly,
IT IS ORDERED that East Jefferson's Motion for Summary Judgment is GRANTED with respect to Legania's (1) Equal Pay Act claims, (2) disparate treatment claims, (3) render and race discrimination based on non-promotion and DENIED with respect to all retaliation claims (federal and state law).
IT IS FURTHER ORDERED that the motion for summary judgment with respect to the after acquired evidence defense and limit on front pay are DENIED.