Opinion
No: 02-0055
June 24, 2002
ORDER AND REASONS
Before the Court are (1) motions for summary judgment of Defendants, St. Tammany Parish Fire Protection District No. 1 ("District No. 1") and American Alternative Insurance Corp. (American Alternative") pursuant to Federal Rule of Civil Procedure 56(c). see Rec. Docs. 7. 18;(2) a Motion to Dismiss or Continue Defendant [District No. 1]'S Motion for Summary Judgment due to Prematurity pursuant to Rule 56(f) by Plaintiff. Debra Rice Safford ("Safford"), see Rec. Doc. 8; (3) Safford's Motion for Leave of Court to File Supplemental Exhibits to Memorandum in Opposition to Defendant [District No. I]'s Motion for Summary Judgment, Memorandum in Opposition to Defendant American Alternative Insurance Corporation's Motion for Summary Judgment, and Memorandum in Opposition to Defendant American Alternative Insurance Corporation's Motion to Strike Affidavit to the extent Safford contends in these submission that it is necessary to conduct further discovery. pursuant to Rule 56(f), to oppse the motions for summary judement. see Rec. Docs. 19, 20,26;(4) American Alternative's Motion to Strike Affidavit in Opposition to Motion for Summary Judgment, see Rec. Doc. 23; and (5) Safford's Motion to Strike Defendants' Affidavits, see Rec. Doc. 27. After reviewing the record, the arguments of counsel, and the applicable law. IT IS ORDERED that (1) the motions for summary judgment are hereby DENIED; (2) the Motion to Dismiss or Continue Defendant District No. 1]'s Motion for Summary Judgment due to Prematurity is hereby partially GRANTED and partially DISMISSED as MOOT; (3) Safford's Motion for Leave of Court to File Supplemental Exhibits to Memorandum in Opposition to Defendant [District No. l]'s Motion for Summary judgment and the requests in her Memorandum in Opposition to Defendant American Alternative Insurance Corporation's Motion for Summary Judgment and Memorandum in Opposition to Defendant American Alternative Insurance Corporation's Motion to Strike Affidavit are hereby GRANTED, DISMISSED as MOOT, and GRANTED, respectively, to the extent Safford contends it is necessary to conduct further discovery, pursuant to Rule 56(f) to oppose the motions for summary judgment; (4) American Alternative's Motion to Strike Affidavit in Opposition to Motion for Summary Judgment is hereby DISMISSED as MOOT: and (5) Safford's Motion to Strike Defendants' Affidavits is hereby DISMISSED as MOOT.
"In her Memorandum in Opposition to Defendant American Alternative Insurance Corporation's Motion for Summary Judgment, Safford adopts all materials used to oppose District No. l's motion for summary judgment. See Rec. Doc. 20 at 1.
BACKGROUND
This is an employment discrimination case. Safford alleges that as a woman older than forty, she was discriminated against by District No. 1 on the basis of gender and age in violation of Title VII. 42 U.S.C. § 2000e. et seq.; the Age Discrimination in Employment Act ("ADEA"). 29 U.S.C. § 621, et seq.; the Louisiana Discrimination in Employment Act ("LDEA"), La. R.S. § 23:332: the Louisiana Age Discrimination in Employment Act ("LDEA"). La. R.S. § 23:312; La. R.S. § 51:2231 et seq., and 42 U.S.C. § 1983. See Rec. Doc. 1; Rec. Doc. 8. Mem. in Opp'n to Def's Mot., for Summ. J. in Supp. of Mot. to Dismiss or Continue Def.'s Mot. for Summ. J. due to Prematurity at 1. Specifically, Safford claims that District No. 1 acted discriminatorily in failing to hire her as a full-time Firefighter when she applied for the positionin May 2000 and August 2001. See Rec. Doc. 1. Alternatively Safford alleges that District No. 1 discriminatorily failed to promote her from her status of Volunteer Firefighter to paid, full-time Firefighter and requests leave to amend her complaints to allege her failure-to-promote claims. See Rec. Doc. 8. Mem. in Opp'n to Def's Mot. for Summ J. in Supp. of Mot. to Dismiss or Continue Def.'s Mot., for Summ. J. due to Prematurity at 12-14. District No. 1 contends — and Safford has provided no evidence to the contrary — that she filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on September 22, 2001. See Rec. Doc. 11. Mem. in Supp. of Mot. for Summ. J. at 11
§ 51:2231, et seq., "provides for the execution of federal anti-discrimination laws in the State of Louisiana and creates the Louisiana Commission on Human Rights ("Commission')." King v. Phelps Dunbar, LLP, 98-1805 (La. 06/04/99), 743 So.2d 181, 187. The Commission is empowered to adjudicate employment discrimination claims pursuant to §§ 51:2231(C) and 51:2257. See id. An individual alleging employment discrimination under § 23:331 "may file a written complaint with the Commission and have the allegations investigated and resolved by the Commission." Id. The record does not indicate that Safford filed any such complaint in this matter. Accordingly, the Court will not apply the provisions of § 51:2231, et seq., to Safford's claims.
Safford claims that despite being selected as District No. l's 2000 Volunteer Firefighter of the Year, she was passed over in her May 2000 bid for a Firefighter Position in favor of four younger, less qualified men. See Rec. Doe. 1 at ¶ VI. District No. l's Hiring Committee members state in affidavits that Safford did not perform as well in the interview for the position as the other candidates. See Rec. Doc. 11, Mem. in Supp. of Mot. for Summ. J., Ex. B at ¶ 16; id., Ex. C at ¶ 3:id., Ex. D at ¶ 3.; id., Ex. E. at ¶ 3: id., Ex. F at ¶ 3. Additionally, Hiring Committee member Diana Aucoin states by affidavit Safford was the only applicant to receive a negative reference from a prior employer. See id., Ex. B at~¶ 17.
Safford's former employer Nancy' Frederick ("Frederick") acknowledges in her affidavit that she told District No. 1. "during the last three or four weeks of her employ . . . Ms. Safford [had] some personality problems. but that same were understandably related to her marital difficulties at the time. [I] stated she would not have kept an employee with on-going personality problems as long as Ms. Safford was in [my] employ." Rec. Doc. 8, Ex. B. at ¶ 3. Frederick also states in her affidavit that she "further informed [District No. 1] that Ms. Safford would make a wonderful fire fighter . . . " Id. at ¶ 2. Frederick's affidavit concludes that she "denied giving a negative employment reference concerning Ms. Safford to [District No. 1]. and in fact, highly recommended her for employment . . . . [T]he comments attributed to [me] were obviously taken out of context, as [I] intended to and believed [I] gave an extremely favorable recommendation for Debra Safford." Id. at ¶¶ 7-8.
In her motion to dismiss or continue Defendants' motion for summary judgment due to prematurity, Safford claims she needs additional time to discover information relevant to District No. l's decision not to hire her in connection with her May 2000 application, including (1) employment references of Safford and the other applicants with respect to this application; (2) the qualifications of the other applicants; (3) whether Safford knew or should have known she was discriminated against; and (4) the existence or non-existence of documents evidencing the alleged "poor performance" of Safford in her May 2000 interview. See Rec. Doc. S. Mem. in Opp'n to Def's Mot. for Summ. J. in Supp. of Mot. to Dismiss or Continue Def.'s Mot. for Summ. J. due to Prematurity at 4-6. In her Motion for Leave of Court to File Supplemental Exhibits to Memorandum in Opposition to Defendant's Motion for Summary Judgment. Safford also complains that she requires additional time to discover information related to a fifth issue. the interview performances of those hired in 2000 See Rec. Doc. 19 at 3. Additionally. in her Memorandum in Opposition to Defendant American Alternative Insurance Corporations Motion for Summary Judgment. Safford reurges her contention as to the need for discovery on several of the above-mentioned matters as well as other related issues. See Rec. Doc. 20 at 1-4.
Safford contends that she applied for a Firefighter position again in August 2001 and again was discriminated against, passed over this time in favor of three younger. less qualified men. See Rec. Doc. 1 at ¶ IX. Defendants claim that Safford did not timely submit a current civil service exam score to District No. 1's Civil Service Board, thus precluding District No. 1 from considering her application pursuant to the guidelines in the State of Louisiana Municipal Fire and Police Civil Service Office of State Examiner's Operation of a Municipal Fire and Police Civil Service System manual. See Rec. Doc. 7 at Mem. in Supp. of Mot. for Summ. J. Safford counters that she passed a civil service exam for the position of Firefighter in St. Tammany Parish Fire District No. 4 ("District No. 4") and timely submitted the score to District No. 1. See Rec. Doc. 8, Statement of Genuine Issues of Material Fact at ¶ 4. She farther contends. by way of an affidavit of District No. l's Civil Service Representative, David Pellerin, that she was told her score would be submitted to District No. l's Civil Service Board. See Rec. Doc. 19, Aff. at ¶ 4. Pellerine also states that the score either should have been delivered to the Civil Service Board or that Safford should have been told that either she or District No. 4's Civil Service Board should forward the score to District No. l's Civil Service Board. See id., Aff. at ¶ 5. Moreover. Safford contends that she needs additional time to discover whether men were given interviews for the position at issue in the event their scores were not delivered to District No. l's Civil Service Board in a manner Defendants assert was proper. See Rec. Doc 26 at 7-8.
STANDARDS OF REVIEW
Summary judgment
A district court can grant a motion for summary' judgment only when 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."' Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106S. Ct. 2548. 2552. 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawingsaall inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. his. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute... [to be] 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmovingparty . . . [and a] fact . . . [to be] 'material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510. 91 L.Ed.2d 202 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party' to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1461 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53, 91 L.Ed.2d 265 and Fed.R.Civ.P. 56 (e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. 106 S.Ct. at 2510, 91 L.Ed.2d 202. "If the evidence is merely colorable, or is not significantly probative." summary judement is appropriate. Id. at 249-50 106 S.Ct. at 2511. 9 1 L.Ed.2d 202 (citations omitted).
Rule 56(f)
When moving for a continuance under Federal Rule of Civil Procedure 56(f). the nonmovant must present "specific facts explaining its inability to make a substantive response as required by' Rule 56(e) and . . . specifically demonstrat[e] how postponement of a ruling on the motion will enable him. by discovery or other means, to rebut the movant's showing 0f the absence of a genuine issue of fact." Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285~ (5th Cir. 1990) (internal quotations omitted). "The nonmovant may not simply rely on vague assertions that discovery will produce needed, but unspecified, facts . . ." SEC v. Recile, 10 F.3d 1093, 1098 (5th Cir. 1993) (internal quotations and citations omitted).
Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Rule 56(e) provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively' that the affiant is competent to testify' to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response. by" affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment. if appropriate, shall be entered against the adverse party.
ANALYSIS
2002 claims
Defendants contend that Safford's claims based on the rejection of her May 2000 application should be dismissed (I) because they were not timely filed and (2)on the merits. See Rec. Doc. 7.
Defendants first argue that Safford timely filed neither her Title VII and ADEA discrimination charges arising from the 2000 rejection with the EEOC, nor her § 1983 and state claims here. See id.
As an initial matter, the Court considers Defendants' assertion that Safford did not comply with the administrative requirements for filing her Title VII and ADEA claims. Before instituing a Title VII or ADEA action in this Court, a plaintiff must timely file an administrative complaint with the EEOC. See Barnes v. Leavitt 118 F.3d 404, 408 (5th Cir. 1997); Clark v. Resistoflex Co., 854 F.2d 762, 765 (citing Love v. Pullman. 404 U.S. 522, 523, 92 S.Ct. 616, 617. 30 L.Ed.2d 679 (1972)). Generally, a plaintiff must filed a discrimination charge with the EEOC within 180 days following the alleged unlawful practice. See 42 U.S.C. § 2000e-5(e)( 1); Clark, 854 F.2d at 765. In so-called "deferral states" such as Louisiana. however, the 180-day window is extended to 300 days. See Celestine v. Petroleos de Venez, SA, 266 F.3d 343. 351 (5th Cir. 2001): Clark. 8~54 F.2d at 765.
Defendants claim, and Safford provides no evidence to the contrary, that she did not file her Title VII and ADEA discrimination charges for the rejection of her May 2000 application with the EEOC until 22, 2001, well after the 300-day' period had elapsed. See Rec. Doc 11, Mem. in Supp. of Mot. for Summ. J. at 11. Nevertheless. Safford argues that District No. I has a history' of discrimination against women and racial minorities and that the limitation period was thus tolled pursuant to the "continuing violation doctrine." See Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir. 1997), cert. denied, Texas Educ. Agency v. Messer 525 U.S. 1067, 119 S.Ct. 794; 142 L.Ed.2d 657 (1999). "The continuing violation theory relieves a [Title VII] plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitation period.... The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights." Id. at 134-35 (internal quotations and citations omitted). See also Thomas v. E.I. Du Pont de Nemours Co., 574 F.2d 1324, 1331 (5th Cir. 1978) (confirming Fifth Circuit's application of continuing violation doctrine to ADEA).
The continuing violation doctrine does not apply, however, to failure to hire claims. See Celestine 266 F.3d at 352 "[A] one-time employment event including the failure to hire . . . is 'the sort of discrete and salient event that should put the employee on notice that a cause of action has accrued." Id. (quoting Huckaby "a. Moore 142 F.3d 233, 240 (5th Cir. 1998)). Accordingly, the untimely filing of the complaint with the EEOC "cannot be saved by the continuing violation doctrine." Id. (citing Huckaby, 142 F.3d at 240).
Safford appears to suggest. however. that as she was a Volunteer Fire fighter with District No. 1 and subsequently turned down for paid employment, she should be permitted to restyle her claims based on District No. l's failure to promote her. For this proposition that Safford cites Trevino v. Celanese Corp., 701 F.2d 397. 402-05 (5th Cir. 1983). Accordingly. Safford argues, she may avail herself of the continuing violation doctrine with respect to her Title VII and ADEA claims.
As to the issue of whether a volunteer may sue an entity for failure to promote her from volunteer to paid status, the Court agrees that summary judgment is inappropriate. Trevino concerned a different fact scenario, whether an employer may be liable for failure to promote an employee of another entity. See id. Nevertheless, the following language in the case suggests that its analysis is applicable here:
Ordinarily, promotion is perceived as occurring within a single company or organization. It is clear, however, that an employee may also be promoted, or denied promotion, from one to another nominally independent entity, provided these two entities' activities, operations, ownership or management are sufficiently interrelated. Whether transfer from one workforce to another constitutes a "promotion" or a "hiring" depends on the facts of each particular case; however, the degree of interrelatedness between companies required before an employee will be considered to have been "promoted" as he transfers front one to the next cannot reasonably be said to exceed that degree of connexity which the courts require for a finding of joint employer or integrated enterprise status.
Id. at 403.
In the instant case. Safford has submitted evidence suggesting that it may' be appropriate to consider her 2000 rejection by District No. 1 as a failure to promote. She performed many' of the same tasks for District No. 1 as a Volunteer Firefighter that she would as a paid Firefighter. See Rec. Doc. 8 at Ex. C. Additionally, the same entity had authority over her volunteer work and the decision to hire her. Thus. summary judgment is denied to the extent District No. I contends that Safford may not refashion the basis of her 2000 claims as a failure to promote.
The Court hereby grants Safford's request to amend her complaints to properly allege her failure to promote claims. Safford shall file any such amendment within ten days of the date of this Order.
The other issue here is whether. given the refashioning of the allegedly' offending conduct as a failure to promotion. Safford may revive her 2000 claims by availing herself of the continuing violation doctrine. The Trevino court noted that the Fifth Circuit "has consistently' recognized... discrimination in promotion and transfer as a continuing violation of Title VII." Id. at 402. Defendants counter by' arguing that the continuing violation doctrine does not apply to failure to promote claims under Celestine, 266 F.3d at 352 ("a one-time employment event, including the failure to hire, promote. or train and dismals or demotions. is "the sort of discrete and salient event that should put the employee on notice that a cause of action has accrued... "") (quoting Huckabay, 142 F.3d at 240).
The case law on the continuing violation doctrine has been "aptly described as 'inconsistent and confusing'. . . . "Berry v. Bd. of Supervisors of L.S.U. 715 F.2d 971, 979 n. 11 (5th Cir. 1983) (quoting Dumas v. Town of Mount Vernon, 612 F.2d 974, 977 (5th Cir. 1980); Scarlett v. Seaboard Coast Line R.R. Co., 676 F.2d 1043, 1049 (Former 5th Cir. 1982)). Celestine and Trevino appear flatly contradictory.
Helpful is Messer, 130 F.3d 130. In that case, the plaintiff alleged she was denied two promotions because of race and gender, the first of which occurred more than 300 days before she filed a complaint with the EEOC. See id. The lower court granted summary judgment, and the Fifth Circuit reversed. See id. The higher court found a sufficient allegation of a continuing violation based on the plaintiffs theory of the case, which was that the defendant "systematically promoted employees based on racial and gender criteria. . . . " Id. at 135. In this litigation, the plaintiffs theory likewise accuses the defendant employer of systematically discriminating against female firefighters. See Rec. Doc. 1 at ¶ XXI. In light of Messer, the continuings violation doctrine is available to defeat Defendants' assertion that the 2000 Title VII and ADEA claims are time-barred.
For the reasons identified above, the Court also rejects Defendants' arguments that Safford § 1983 and state law claims arising from the 2000 failure-to-hire incident must be dismissed as untimely. See Hess v. Multnomah County, No. CV-00-1483-ST, 2001 U.S. Dist. LEXIS 22745, at *32-33 (D. Or. Dec. 7, 2001) (citing Degrassi v. City of Glendora, 207 F.3d 636, 644 (9th Cir. 2000)) (§ 1983); Spears v. Rountree Oldsmobile-Cadillac Co., 26, 810 (La.App. 2 Cir.. 4/5/95), 653 So.2d 182 (LDEA substantively similar to Title VII, making it appropriate to consider interpretations of the federal statute in construing the former); O'Boyle v. Louisiana Tech Univ., 32, 212 (La.App. 2 Cir., 10/1/99), 741 So.2d 1289, 1290 (citing Taylor v. Oakbourne Country Club, 95-388 (La.App. 3d Cir. 10/4/95), 663 So.2d 379 (predecessor to current LADEA "mirrors the federal ADEA and should be construed in light of federal precedent").
"Because the Court has determined that Safford's claims are not untimely, the Court dismisses as moot the motion to dismiss or continue Defendants' motions for summary judgment due to prematurity to the extent Safford seeks additional time to discover information relevant to the issue of whether she knew or should have known she was discriminated against.
The Court now turns to a consideration of whether summary judgment is appropriate as to the merits of the 2000 claims. Title VII prohibits an employer from "failing or refusing to hire or . . . [from] discharging or otherwise discriminating against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
A Title VII plaintiff bears the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence. See McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). A prima facie case of discrimination consists of a plaintiff showing that (1) she was a member of a protected group; (2) she applied for the position in question; (3) she was qualified for the position; (4) she was not selected for the position; and (5) after the employer declined to hire her, the position either remained open or a male was selected to fill it. See Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994).
If established, the plaintiff's prima facie case raises an inference of intentional discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d 668. The defendant then must rebut that presumption by articulating a legitimate, nondiscriminatory reason for the challenged employment action. See Texas Dep't of Cnty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If the defendant articulates such a reason, the focus then shifts to the ultimate question: whether the plaintiff can prove that the defendant intentionally discriminated against the plaintiff. See id.
The plaintiff may attempt to overcome the employer's proffered nondiscriminatory reason by providing evidence that the employer's legitimate, nondiscriminatory reason is merely pretextual. See St. Mary Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S. Ct 2742, 2749, 125 L.Ed.2d 407. The plaintiff, therefore. "retains the ultimate burden of persuasion throughout the case." Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997) (citing Burdine, 450 U.S. at 253, 101 S.Ct. at 1093, 67 L.Ed.2d 207). A plaintiff can meet her or his burden of demonstrating pretext and thereby establish a jury issue to avoid summary judgment or judgment as a matter of law "if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and 2) creates a reasonable inference that [the plaintiffs protected status] was a determinative factor in the actions of which plaintiff complains." Vadie v. Mississippi State Univ., 218 F.3d 365, 374, n. 23 5th Cir. 2000) (explaining that this analysis first formulated in Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996), survives the Supreme Court's abrogation of Rhodes in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). A prima facie case and sufficient evidence of pretext would permit a court or jury to find unlawful discrimination, without additional independent evidence of discrimination, though such a showing will not always be adequate to sustain a jury's finding of liability. See Reeves, 530 U.S. at 142-49, 120 S.Ct. at 2106-2109, 147 L.Ed.2d 105. See also Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993) (applying McDonnell Douglas-St. Mary's burden-shifting analysis to ADEA claims).
Here, Safford has alleged a prima facie case as to both her Title VII and ADEA claims. She alleges that (1) she is a woman older than forty, see Rec. Doc. 8. Mem. in Opp'n to Def.'s Mot. for Summ. J. in Supp. of Mot. to Dismiss or Continue Def.'s Mot. for Summ. J. due to Prematurity at 1; (2) she applied for the Firefighter position in question. see id; (3) she was qualified for the position, having completed the necessary training and exams, see Rec. Doc. l at VI;(4) she was not selected for the position. see Rec. Doc. 8, Mem. in Opp'n to Def's Mot. for Summ. J in Supp. of Mot. to Dismiss or Continue Def.'s Mot.. for Summ. J. due to Prematurity at 1; and (5) after District No. 1 declined to hire her, four Firefighter openings were filled by younger men. see Rec. Doc. 1 at ¶ VI.
Defendants have rebutted the presumption of discrimination with evidence of legitimate, nondiscriminatory reasons, as noted above, that Safford (1) was the only' applicant to receive a negative employment reference and (2) did not perform as well as the other applicants in her interview for the position.
Safford, however, either has provided evidence that District No. l's reasons for its failure to hire her severe pretextual or has sufficiently stated in her Rule 56(f) motions that she needs additional time to discover whether information exists to demonstrate such pretext. First, although one of Safford's former employers, Frederick, did state in an affidavit that she made a negative comment about her ex-employee to District No. 1, Frederick's representation of the reference charges District No. I with taking the negative comment badly out of context and directly contradicts District No. l's portrayal of the reference in several key respects. Overall, Frederick's reference as she describes it could well be construed as glowing. Second, Safford requests additional time to conduct discovery with regard to the other applicants' interview performances. See Mot. for Leave of Court to File Supplemental Exs. to Mem. in Opp'n to Def.'s Mot., for Summ. J. at 3. The Court hereby grants this request. Thus, the evidence, both existing and potential, supports denial of the motion for summary judgment.
"To the extent Safford argues in her motions that she requires information beyond that specified here to defend against the motions for summary judgment, the motions are dismissed as moot.
For the foregoing reasons, summary' judgment also is denied as to Safford's claims based on the 2000 incident pursuant to LADEA, La. R.S. § 23:312 and 42 U.S.C. § 1983. See Sreeram v. Louisiana State Univ. Med Center-Shreveport, 188 F.3d 314, 321 (5th Cir. 1999) (citing Wallace v. Texas Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996)) (§ 1983); Spears. 653 So.2d 182 (LDEA); O'Boyle, 741 So.2d at 1290 (citing Taylor, 663 So.2d 379) (LADEA).
August 2001 claims
Defendants claim, and Safford does not argue otherwise. that District No. l's civil service board did not receive her civil service examination score. Thus. Defendants contend. District No. I was precluded from considering her application when it hired others in August 2001. Toward this end. Defendants point to a publication compiled by the State of Louisiana Municipal Fire and Police Civil Service's Office of State Examiner titled Operation of a Municipal fire and Police Civil Service System (2001) ("Operation Guidelines"). The Operation Guidelines state that in order for a particular district's civil service board to consider an applicant for employment, that civil service board must receive a copy of the applicant's passing test score from the applicant or from the civil service board that administered the civil service examination. See 165. The Operation Guidelines further state. "This process must be accomplished by' the individual not by the chief of the department." Id. Safford states in an affidavit that she brought a timely' civil service test score to District No. 1 in connection with application for the August 2001 hiring. See Rec. Doc. 8. Defendants contend. however, that Safford was required to submit a timely civil service exam score not to District No. 1 itself, but to District No. l's civil service board. See Rec. Docs. 7, 18. As she failed to do so. Defendants argue, Safford was validly precluded from consideration for the August 2001 hiring decision. See Rec. Docs. 7, 18.
The Operation Guidelines, however, do not comprise rules binding on local civil service boards. La. R.S. § 33:2479G(1) provides that the "state examiner shall . . . [a]ssist the various boards in an advisory capacity in the discharge of their duties" (emphasis added). Ultimately, it is the province of each local board to "[m]ake, alter, amend, and promulgate rules necessary to carry out effectively the provisions" of the part of the Louisiana Revised Statutes pertaining to the Fire and Police Civil Service Law at issue here. § 33:2477(7). See also § 33:2478. As such, the Court rejects Defendants' claim that they are relieved from liability' solely because Safford failed to comply' with the procedures set forth in the Operation Guidelines for submitting her civil service score.
The issue with respect to Safford's August 2001 claims, thus, is whether those in classes not protected under Title VII and/or the ADEA and similarly situated to Safford received favored treatment with respect to the District's application process at the time Safford was passed over for employment. It may' be that this inquiry will be governed by (1) District No. l's civil service board rules, if any'. established pursuant to § 33:253S and or (2) notwithstanding any' such rules. District No. 1's actual treatment to Safford compared with those class members not protected by e VII and similarly situated to Safford. With respect to the second inquirythe Court finds it appropriate to grant Safford's request for additional time to discover whether, for instance, those Class members not protected by' Title VII and similarly situated to Safford were given interviews despite not following what Defendants represent as the "proper" civil service procedures. Accordingely, the Court cannot say Defendants have established that there is no genuine issue of material fact as to the application process issue under either inquiry. Thus, Defendants' motions for summary judgment are denied as to the August 2001 failure-to-hire claims made under Title
As mentioned above, Safford appears to suggest that the Court should alternatively view the District's actions as a wrongful failure to promote and deny' the instant motion on this basis.
The Court expressly does not decide here whether Defendants would be relieved from liability by any failure by Safford to adhere to District No. l's civil service board application rules, if any, established pursuant to § 33:2538. If, for instance, District No. 1 discriminatorily either (1) overlooked the failure of those not protected by Title VII and/or the ADEA to comply with District No. l's civil service board application rules and/or (2) assisted men or those not protected by the ADEA in complying with those rules, it may be that such action is sufficient to subject Defendants to liability under those statutes. Cf. Smith v. Wal-Mart Stores ("No. 471), 891 F.2d 1177, 1180 (5th Cir. 1990) (per curiam) (to succeed on Title VII disparate treatment claim, plaintiff must show "that the misconduct for which she was discharged was nearly identical to that engaged in by a male employee whom [the company] retained... ") (quoting Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. Unit B 1982)) (alteration in original). Again, however, the Court expresses no opinion that such actions are necessary or sufficient to establish or even relevant to the issue of — liability under Title VII or the ADEA.
The Court notes that District No. 1 has not addressed the August 2001 failure to hire claims pursuant to § 1983 and state law. Accordingly, District No. 1 has not carried its initial burden of showing that there is no genuine issue of material fact as to these claims, thus precluding a finding of summary judgment in District No. l's favor as to these claims.
As the Court has denied District No. l's summary judgment motion as to the August 2001 Title VII and ADEA failure to hire claims, the Rule 56(f) motion is dismissed as moot to the extent it seeks additional time for discovery related to the August 2001 incident.
For purposes of her ADEA claim, Safford does not specifically request additional time to discover whether younger applicants were afforded preferential treatment despite not following the purported "correct" procedures. Rather, Safford requests additional time to discover information regarding whether preferential treatment was accorded to "white" men. Rec. Doc. 26 at 8 (emphasis in original). The Court assumes that this is a misprint and that Safford intended to request additional time to discover information as to whether preferential treatment was accorded to younger men. Accordingly, the Court finds that summary judgment is inappropriate as to Safford's August 2001 ADEA claim.
American Alternative, however, raises two alternative arguments in support of its summary' judgment motion: (1) that it cannot be liable absent a finding of liability of its insured, District No. I and (2) to the extent Safford's opposition to its motion for summary judgment depends on the affidavit of David M. Pellerin ("Pellerin"). the affidavit should be stricken, see Rec. Doc. 23.
First. as the Court has not concluded that District No. 1 is not liable here, the Court dismisses as moot American Alternative's argument that it cannot be liable if District No. 1 is not liable to Safford. Second, as the Court's denial of the motions for summary judgment does not depend on the sufficiency of Pellerin's affidavit, the Court dismisses as moot American
Alternative's contention that summary judgment should be granted in its favor to the extent Safford's opposition to American Alternative's motion for summary judgment depends on the contents of Pellerin's affidavit. Accordingly', the Court dismisses as moot American Alternative's Motion to strike Affidavit in Opposition to Motion for summary Judgment,
As the Court has partially' denied and partially' dismissed as moot the motions for summary judgment without reference to the affidavits Safford seeks to strike in her Motion to strike Defendants' Affidavits, this motion is dismissed as moot.
"As noted above, the Court has granted Safford's motion for leave of court to file supplemental exhibits to her memorandum in opposition to Defendants' motions for summary judgment to the e tent Safford contends it is necessary to conduct further discovery, pursuant to Rule 56(f), to oppose the motions for summary judgment. Also as noted above, the Court has determined that the allegations in the former motion — along with other evidence presented — are sufficient to withstand the motions for summary judgment. Accordingly, it is not necessary to address Safford's Memorandum in Opposition to Defendant American Alternative Insurance Corporation's Motion for Summary Judgment to the extent Safford contends it is necessary to conduct further. discovery, pursuant to Rule 56(f), to oppose American Alternative's motion for summary judgment. Thus, the Court dismisses as moot Safford's Memorandum in Opposition to Defendant American Alternative Insurance Corporation's Motion for Summary Judgment to the extent Safford contends it is necessary to conduct further discovery, pursuant to Rule 56(f), to oppose American Alternative's motion for summary judgment. for Summary Judgement. and Memorandum in Opposition to Defendant American Alternative Insurance corporations Motion to Strike affidavit are hereby GRANTED, dismissed as MOOT. and GRANTED. respectively, to the extent Safford contends it is necessary to condtuct further discovery, pursuant to Rule 56(f), to oppose the motions for summary judgment;
CONCLUSION
For the foregoing reasons.
IT IS ORDERED that:
(1) the motions for summary judgment are partially' DENIED and partially-' DISMISSED as MOOT:
(2) the Motion to Dismiss or Continue Defendant [District No. l]'s Motion for Summary Judgment due to Prematurity is hereby' partially GRANTED and partially DISMISSED as MOOT;
(3) Safford's Motion for Leave of Court to File Supplemental Exhibits to Memorandum in Opposition to Defendant [District No. l]'s Motion for Summary Judgment and the requests in her Memorandum in Opposition to Defendant American Alternative Insurance Corporation's Motion for Summary Judgment, and Memorandum in Opposition to Defendant American Alternative Insurance Corporation's Motion to Strike Affidavit are hereby GRANTED, DISMISSED as MOOT, and GRANTED, respectively, to the extent Safford contends it is necessary to conduct further discovery, pursuant to Rule 56(f), to oppose the motions for summary judgment;
(4) American Alternative's Motion to Strike Affidavit in Opposition to Motion for Summary Judgment is hereby' DISMISSED as MOOT; and
(5) Safford's Motion to Strike Defendants' Affidavits is hereby' DISMISSED as MOOT.