Case: 12-30290 Document: 00512248636 Page: 1 Date Filed: 05/21/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 21, 2013
No. 12-30290 Lyle W. Cayce
Clerk
MARTHA HELEN HAIRE,
Plaintiff - Appellant
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY
AGRICULTURAL AND MECHANICAL COLLEGE,
Defendant - Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
Before JOLLY, GARZA, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Plaintiff – Appellant Martha Helen Haire (“Haire”) brought this gender
discrimination suit against Louisiana State University (“LSU”), alleging the
LSU Police Department violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., as well as Louisiana state employment law, LA. REV.
STAT. ANN. §§ 23:332(A)(1), 23:967, by failing to promote her to the position of
Chief of Police and retaliating against her for filing complaints with the Equal
Employment Opportunity Commission (“EEOC”) and Louisiana Commission for
Human Rights (“LCHR”). The district court granted summary judgment in favor
of LSU. Because Haire has established a prima facie case of discrimination and
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there is a genuine disputed issue of fact of whether LSU’s alleged non-
discriminatory reason for not promoting Haire is pretextual, we hold that
summary judgment on the gender discrimination claim was improper.
Furthermore, because Haire has shown a conflict in substantial evidence
regarding retaliation, we hold summary judgment was also improper on that
second claim. We thus REVERSE, VACATE the district court’s judgment, and
REMAND the case for further proceedings not inconsistent with this opinion.
I.
Haire has been a member of the LSU Police Department (“LSUPD”) since
1988. She began as an on-the-beat police officer but was promoted to roles with
increased administrative responsibilities, including sergeant, lieutenant,
captain, and, finally in 2005, major, a position she still holds. In 2007, Mr. Ricky
Adams retired as Chief of Police at LSU, and Haire, believing herself to be a
qualified candidate to replace him,1 decided to apply for the new opening. LSU
recruitment policy states that “[i]nternal promotions are strongly encouraged”
and that “[e]fforts should be made to identify women and minority candidates
for [interim] appointments.” Although Haire learned of the Chief opening and
applied, she never heard from LSU regarding her application, and Mr. Gary
Durham (“Durham”), Public Safety Director of LSU, was soon appointed
temporary, “interim” Chief of Police. The position, however, remained open for
another two years while LSU’s new Chancellor looked for a permanent
replacement. While he was interim Chief, Durham performed a variety of
actions which, according to Haire, demonstrated his bias against women.2
1
The position required that all applicants possess, at minimum, a college degree. Haire
has a Bachelor’s Degree from the University of Mississippi and a Master’s Degree from
Faulkner University. Additionally, Ms. Haire completed training at the FBI National
Academy.
2
As the discussion infra will show, Durham’s alleged actions, while troublesome, are
not as crucial to Haire’s gender discrimination claim as the comments of another officer,
2
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After Durham was appointed and while the search for a permanent
replacement continued, Haire allegedly was excluded from decision-making at
LSUPD in which her job had previously allowed her to take part. More
significantly, Haire claims she began to face hostility from a co-worker,
Lawrence Rabalais (“Rabalais”), who was also a LSUPD major and who was
competing with Haire for the promotion to Chief of Police. Rabalais allegedly
slandered Haire in conjunction with a newspaper article written about Haire’s
husband,3 and, of considerable relevance to this case, told a LSUPD co-worker
that he wanted to “to get rid of” Haire and that, if a woman was appointed to the
position of Chief, Rabalais would quit. In this suit, Haire alleges that Rabalais
and Durham’s alleged misogynism was the reason LSU failed to promote her to
the position of Chief. As the impending discussion will show, however,
Rabalais’s alleged gender bias – rather than Durham’s – is more significant in
this appeal, because Rabalais was involved in an investigation into Haire’s
conduct which cost her the promotion, and Rabalais exercised some significant
leverage over LSU’s decisionmaker.
In May 2009, an incident involving both Haire and Rabalais occurred,
which Haire claims provided LSU with a convenient pretext not to promote her.
Lawrence Rabalais. Nonetheless, four of Durham’s actions, as alleged by Haire, warrant
particular mention: (1) One co-worker of Haire’s testified that Durham told him in 2009 that
he “d[id] not want a woman in th[e] position” of Chief; (2) On an office door, Durham hung a
poster, the imagery on which suggested “getting more efficiency out of women employees;”
Durham laughed about the poster and showed it to female co-workers; (3) Durham sent
“dumb-blonde” jokes to LSUPD employee Sharon Gonzalez; and (4) In 2009, when an article
concerning problems the Louisiana Department of Revenue was having was published in the
local newspaper, Durham responded by saying, “[T]hat’s what happens when you have a bunch
of women in charge.”
3
In 2008, shortly after her husband had been arrested for acts irrelevant to this case,
Rabalais allegedly notified LSUPD officers of a newspaper article about Haire’s husband,
laughed openly about the husband’s arrest, and instructed that Haire’s name be mentioned
in conjunction with the story about her husband. Rabalais’s alleged intent was to embarrass
Haire.
3
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Haire entered information into the police reporting system that made public an
arrest of former LSU Dean Carolyn Collins, a high-profile figure on campus.
Haire alleges she entered the information after being given a directive from
Durham, her superior at the time. Although she believed the request to be
somewhat irregular, she believed it to be lawful and carried out the order,
resulting in the disclosure of Collins’s identity in conjunction with a crime. The
incident seems to have developed into an internal scandal because Haire’s
actions arguably violated police procedure, compromised the integrity of the
LSUPD, and embarrassed the University. A series of three disciplinary
procedures then followed.
First, the LSUPD held an investigative “244 hearing” to look into the
Collins incident. As part of the investigation, Haire was interviewed by
Rabalais, her competitor for the position of Chief, who allegedly had said he
would quit if a woman were appointed to that role. Second, when the
investigation into the Collins incident concluded, Haire received a “Coaching
Letter,” in which the Chancellor of LSU found Haire’s actions “grossly
inappropriate” and “most disturbing.” The letter acknowledged that Haire had
received a directive to enter information into the reporting system from her
superior but nonetheless found her acts to be a “violation of proper procedure,”
which caused the Chancellor to “question [Haire’s] trustworthiness” and resulted
in her future performance being “closely monitored.” Haire disagreed with
allegations made in the Coaching Letter and sent a rebuttal to LSU authorities.
Third, Rabalais gave Haire the lowest performance evaluation she has received
in her twenty-two years with LSUPD, rating her below satisfactory for “job
knowledge and technical skills.” As a result, Haire allegedly lost her supervisory
responsibilities, certain subordinate personnel, her position as commander of
Football Gameday Operations, and the ability to earn overtime pay. In her brief,
4
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she contends this “decimating reduction of her duties” essentially stripped her
of “her rank, her command, and her job.”
Roughly three months after the Collins incident, Michael Martin, LSU’s
Chancellor, allegedly under the influence of Durham, named Rabalais interim
Chief of Police. But Rabalais lacked an undergraduate degree which the position
required. This lack of qualification prompted Martin to announce that Rabalais
would not assume “full Chief” status until after the completion of his degree
requirements, whenever that might occur.4 Shortly thereafter in September
2009, and in the midst of disciplinary actions described above, Haire filed a
Charge of Discrimination with the EEOC and LCHR, alleging illegal
discrimination and retaliation. Finally, in January 2010, while Haire’s EEOC
charge was presumably still pending, Rabalais was appointed permanent Chief
of Police. To clarify the specific nature of Haire’s claims before the district court,
the same that are before us on appeal: she contends her failure to receive the
promotion (that was given to Rabalais) was motivated by gender-based
discriminatory animus and was retaliation for her EEOC and LCHR complaints.
Haire filed suit against LSUPD, alleging in her amended petition that
LSU is liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq., as well as Louisiana employment law, for gender discrimination,
retaliation, and reprisal. LSU filed a motion for summary judgment, arguing
that Haire could not show that her gender was a motivating factor in not
promoting her to Chief of Police, and that she could not prevail on her retaliation
or reprisal claims because there is no causal connection between her protected
activity and any adverse employment action. The district court granted
summary judgment on behalf of LSU on all claims. Haire timely appealed.
4
Haire alleges that Rabalais “did not even complete the requirements of the online
degree himself” and rather asked subordinate employees to do his online coursework in his
stead.
5
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II.
We review the district court’s grant of summary judgment de novo. Young
v. Equifax Credit Information Servs., Inc., 294 F.3d 631, 635 (5th Cir. 2002).
Summary judgment is proper if, after adequate opportunity for discovery, the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with any affidavits filed in support of the motion, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). When assessing whether a dispute as to any
material fact exists, we consider all the evidence in the record but refrain from
making credibility determinations or weighing the evidence; instead, we draw
all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
In employment discrimination cases, if the plaintiff establishes a prima
facie case of discrimination, the burden of production shifts to the employer to
provide a legitimate, non-discriminatory reason for the action. Manning v.
Chevron Chem. Co., LLC, 332 F.3d 874, 881 (5th Cir. 2003). This approach is
referred to by courts as the McDonnell Douglas analysis or framework. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If the defendant offers
such a justification, the burden shifts back to the plaintiff, who can attempt to
show that the defendant’s proffered reason is simply a pretext for discrimination.
Manning, 332 F.3d at 881. To carry this burden in a discrimination case, the
plaintiff must put forward evidence rebutting each of the nondiscriminatory
reasons the employer articulates. Wallace v. Methodist Hosp. System, 271 F.2d
212, 220 (5th Cir. 2001). A plaintiff may establish pretext by showing that a
discriminatory motive more likely motivated her employer’s decision, such as
through evidence of disparate treatment, or that her employer’s explanation is
unworthy of credence. Id. (inset quotations omitted).
6
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III.
We begin by addressing Haire’s first claim: that LSU violated Title VII by
discriminating against her on the basis of her gender when it failed to promote
her to the position of Chief of Police.5 For the purposes of reviewing this
summary judgment motion, we will assume arguendo that the comments by
Durham and Rabalais do not constitute direct evidence of discrimination and,
consequently, that the usual McDonnell Douglas framework applies.6 See
McDonnell Douglas, 411 U.S. at 802-05.
Under the McDonnell Douglas test, a Title VII plaintiff alleging gender
discrimination must show (1) that she is a member of a protected class; (2) that
she was qualified for the position sought; (3) she was subject to an adverse
employment action; and (4) she was replaced by someone outside her protected
class or was treated less favorably than other similarly situated employees
outside her class. Fahim v. Marriott Hotel Servs., 551 F.3d 344, 350 (5th Cir.
2008) (citations omitted). Haire has made a prima facie case: she is (1) a female,
who (2) was – based on her college degree and relevant years of experience on
5
This claim is not time-barred. Under Title VII, a plaintiff alleging gender
discrimination must file a complaint with the EEOC within 180 days of the alleged
discriminatory act or within 300 days if the plaintiff has initially instituted proceedings with
a state or local agency with authority to grant relief. 42 U.S.C. § 2000e-5(e)(1).
Discrimination claims brought under Louisiana law are subject to a one-year prescriptive
period. LA. REV. STAT. ANN. § 23:303(D). Citing these provisions and considering the relevant
dates in Haire’s suit, the district court held that any alleged discrimination claims based on
LSU’s acts prior to December 3, 2008 are time-barred and any claims arising under Louisiana
law based on LSU’s acts prior to March 25, 2009 have prescribed. Thus, to the extent that
Haire argues that Durham’s promotion amounted to gender discrimination, that claim is time-
barred because Durham’s appointment happened in 2007. The rest of her claims, however,
are not time-barred. The alleged statements that Rabalais did not want a woman in the
position of Chief, for example, began in 2007 and continued into 2008 and 2009, and,
furthermore, the Collins incident happened in 2009.
6
Although Haire argues that she has offered direct evidence and that McDonnell
Douglas, therefore, does not apply, our discussion infra herein will indicate that we need not
decide that question because, even under the indirect, circumstantial evidence analysis
employed by the district court, summary judgment was premature.
7
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LSUPD – qualified for the position of Chief. On two separate occasions, when
Rabalais was named interim Chief and again when he was named permanent
Chief, she was (3) passed over for a promotion. Failure to promote is clearly an
adverse employment action. Breaux v. City of Garland, 205 F.3d 150, 157 (5th
Cir. 2000) (“Adverse employment actions are discharges, demotions, refusals to
hire, refusals to promote, and reprimands.”) (internal quotation marks omitted)
(emphasis added). Finally, (4) a similarly situated male employee, Rabalais
(who began work for the LSUPD at roughly the same time as Haire and, at the
relevant time, had the same rank as Major), was treated differently. Rabalais
was hired instead of Haire, even though he lacked a college degree. Thus, Haire
has set forth a prima facie case of gender-based discrimination under Title VII.7
The next step, therefore, is to assess whether LSU has provided a
legitimate non-discriminatory justification for issuing the Coaching Letter and
not promoting Haire. See Manning, 332 F.3d at 881. LSU has done so. It
produced testimony that Haire was passed over for the promotion because
Chancellor Martin decided she had violated police procedure during the Collins
incident and thus could not be trusted with a significant increase in
responsibility. Chancellor Martin, for example, testified that, in the context of
reviewing some 1,500 police reports, he saw no report of a LSUPD official
7
In addition to her federal discrimination claim under Title VII, Haire brings a state
law claim under LA. REV. STAT. ANN. § 23:332(A)(1), which states that it is “an unlawful
employment practice for an employer to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual, with respect to [her] compensation, or
[her] terms, conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” Louisiana courts have looked to federal anti-discrimination
jurisprudence in interpreting Louisiana’s anti-discrimination statutes, see, e.g., Plummer v.
Marriott Corp., 654 So. 2d 843, 848 (La. App. 4 Cir. 1995), and we have held that the
appropriate framework for analyzing a retaliation claim under the Louisiana Whistleblower
Statute is the same as that applied in Title VII retaliation cases, see Smith v. A&T Solutions,
Inc., 90 F. App’x. 718, 723 (5th Cir. 2004); cf. Smith v. Amedisys, Inc., 298 F.3d 434, 448 (5th
Cir. 2002). Thus, when we evaluate the Title VII discrimination claim infra herein, we dispose
of the state law claims as well.
8
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performing the same actions that got Haire in trouble, that is, entering the same
information into the “police report posting” system twice.8 He further testified
that, in the wake of the Collins incident, he wanted Haire terminated because
“if Major Haire knew how [the police report posting system] worked, and Major
Haire knew what the policy was, that it struck [him] that Major Haire ought not
to have two file numbers posted on that website”. Another employee, Marian
Callier, also testified that Haire’s actions were “not proper procedure” and that,
in her opinion, Haire should have been terminated for her actions in connection
with the Collins incident. Taken together, these statements satisfy the
employer’s burden: according to LSU, it did not promote Haire because of her
misconduct during the Collins incident.
Because LSU has offered a legitimate non-discriminatory reason for its
decision, the third step in the McDonnell Douglas analysis is for Haire to show,
by rebutting the nondiscriminatory reason articulated by the employer, that
LSU’s stated reason for the failure to promote was a pretext for gender
discrimination. See Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).
Pretext is the crux of Haire’s case; she provides evidence that she was following
a lawful order from her supervisor and LSUPD had no formal written procedure
that clearly prohibited her from obeying her supervisor’s command to file a
second report.9 For her, what followed from the Collins incident was all a
8
Although neither party is very clear about this reporting system, it appears to work
as follows: when a police report is first written, it is immediately posted on LSUPD’s “blotter”
and website. In this case, after the initial police report involving former LSU Dean Carolyn
Collins was posted, the report did not include any information of Collins’s actual arrest
because, at the time, the arrest had not yet been made. When, however, Durham instructed
Haire to enter the information regarding Collins into the system a second time, with a new file
number, Haire included information of Collins’s arrest (which, by that later point, had
occurred). When this information went public, an on-campus scandal involving Collins, a high-
profile figure, resulted.
9
LSU has not introduced any evidence suggesting the existence of such a formalized
procedure.
9
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charade that LSU undertook to cover its tracks in the sex discrimination suit it
anticipated. By papering Haire’s files with disciplinary write-ups, it could
protect itself with a sham justification for not promoting a female applicant who
was more qualified. Haire’s theory, then, is that she was punished, based on
wholly arbitrary and subjective criteria; for an act she had an obligation to
perform; and the subsequent formal reprimand cost her the promotion. Haire
points to the close timing between the selection of Rabalais as interim Chief and
the issuance of the Coaching Letter, and argues the items of circumstantial
evidence create genuine issues of material fact on the legitimacy and truth of
LSU’s proffered justification for failing to select Haire for the promotion. We
agree that Haire has produced evidence sufficient for a jury to rule in her favor
on these underlying predicate points.
Regarding the Collins incident, for instance, the record shows that
Durham, Haire’s supervisor at the time, gave her a command with which she
was bound to comply. In his deposition, Durham testified that he gave Haire a
lawful order. He acknowledged that, if she had not obeyed it, she could have
been disciplined by the department. Rabalais, in his deposition, added that,
assuming Haire had obeyed a lawful order from Durham, she would not have
done anything wrong. And Marian Callier, finally, stated that Haire initially
questioned Durham’s order as improper procedure but that he instructed her to
enter the information into the police blotter anyway. This evidence is sufficient
to raise a genuine issue of material fact. There is a bona fide question whether
LSU’s purported justification for not promoting Haire, whose credentials were
superior to those of Rabalais, was pretextual; and there is the further question
whether Haire could have committed any official wrongdoing when she complied
with her superior’s directives.10
10
Haire need not introduce further evidence that the disciplinary measures that
followed from the Collins incident were motivated by gender bias. Evidence demonstrating
10
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IV.
However, this determination does not end the inquiry into LSU’s motive
for not promoting Haire. As the district court and LSU point out, the ultimate
decision to hire someone other than Haire was made by Chancellor Martin, not
Rabalais, and the record does not indicate that Martin directly engaged in any
discrimination or made any remarks regarding Haire’s gender. Under the “cat’s
paw” theory of liability,11 however, it is possible that Rabalais’s remarks that he
wanted “to get rid of” Haire and that he would resign if a female were appointed
Chief may be imputed to Martin, the formal decisionmaker, if Rabalais played
a role in the ultimate selection.
Under the four-factor test set forth in Brown v. CSC Logic, Inc., 82 F.3d
651 (5th Cir. 1996), a workplace remark constitutes sufficient evidence of
discrimination if it is (a) related to the protected class of persons of which the
plaintiff is a member, (b) proximate in time to the employment decision at issue,
(c) made by an individual with authority over the employment decision at issue,
and (d) related to the employment decision at issue. Auguster v. Vermillion
Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2011) (internal quotation marks
omitted) (emphasis added). The district court held that Haire failed to satisfy
that the employer’s explanation is false or unworthy of credence, taken together with the
plaintiff’s prima facie case, is likely to support an inference of discrimination even without
further evidence of defendant’s true motive. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
897 (5th Cir. 2002). No further evidence of discriminatory animus is required because “once
the employer’s justification has been eliminated, discrimination may well be the most likely
alternative explanation . . . .” Reeves, 530 U.S. at 147.
11
Under the cat’s paw theory, a subordinate employee’s discriminatory remarks
regarding a co-worker can be attributed to the workplace superior, ultimately the one in
charge of making employment decisions, when it is shown that the subordinate influenced the
superior’s decision or thought process. See, e.g., Staub v. Proctor Hospital, 131 S. Ct. 1186,
1193 (2011) (stating that an “employer is at fault [when] one of its agents committed an action
based on discriminatory animus that was intended to cause, and did in fact cause, an adverse
employment action.”); see also Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004);
Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990).
11
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the Brown test because, under the third element, “neither Durham nor Rabalais
had authority over the decision on the hiring of the Chief of Police.” The record,
however, indicates Rabalais played a role in the investigation of Haire, was
responsible for parts of the Coaching Letter, and reported to the formal
decisionmaker, Chancellor Martin, about the “normal procedure” within the
LSUPD with respect to entering information into the police report posting
system. For example, in Martin’s deposition, the following exchange occurred:
Q: Did you[, Chancellor Martin] ever have any conversations with
Rabalais about what happened in the Collins’ situation?
A: I asked – I asked Rabalais . . . about normal procedure within the
Department.
Q: And what did he say?
A: He explained to me [that double numbering] . . . was not the way
you do business.
Consequently, Chancellor Martin’s understanding was that:
A: . . . [I]f Major Haire knew how it worked, and Major Haire knew
what the policy was, that it struck me that Major Haire ought not to
have two file numbers posted on that website.
(Emphasis added.) Thus, the Chancellor, who was new to LSU at the time12 and
unfamiliar with LSUPD policy, obtained from Rabalais what the “normal
procedure” was and then attributed wrongdoing to Haire for violating what he
understood, from Rabalais’s description, that procedure to be. This evidence
sufficiently establishes, for the purposes of avoiding summary judgment, that
Rabalais, a party demonstrating discriminatory animus, “had influence . . . over
the official decisionmaker . . . .” Russell v. McKinney Hosp. Venture, 235 F.3d
219, 226 (5th Cir. 2000) (emphasis added). In such a situation, our
12
Martin began his position as Chancellor roughly eight months prior to the Collins
incident.
12
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jurisprudence holds that “it is proper to impute [the] discriminatory attitude[]
to [that] formal decisionmaker.” Id. Consequently, the district court erred by
holding that Rabalais’s discriminatory animus cannot be imputed to Martin for
the purpose of creating an issue of disputed fact.
V.
Haire also brings a retaliation claim under Title VII and a reprisal claim
under the Louisiana Whistleblower Statute, LA. REV. STAT. ANN. § 23:967(A),13
alleging that LSU retaliated against her by issuing the Coaching Letter and low
performance evaluation, not promoting her, and changing her job duties. When
we evaluate the Title VII retaliation claim infra herein, we dispose of the state
law retaliation claim as well.14
In order to establish a prima facie case of retaliation under Title VII, a
plaintiff must show that (1) she engaged in activity protected by the statute, (2)
an adverse employment action occurred, and (3) a causal link exists between the
protected activity and the adverse employment action. Evans v. City of Houston,
246 F.3d 344, 352 (5th Cir. 2001). If a plaintiff succeeds in establishing a prima
facie case, the McDonnell Douglas burden shifting framework then applies. Id.
at 354. Here, Haire’s protected activity consists of filing discrimination
complaints with the EEOC and LCHR and sending a rebuttal letter to
13
That statute states, in relevant part, “An employer shall not take reprisal against an
employee who in good faith, and after advising the employer of the violation of the law: (1)
Discloses or threatens to disclose a workplace act or practice that is in violation of the
law . . . .” LA. REV. STAT. ANN.§ 23:967(A).
14
See supra n.7.
13
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Chancellor Martin, so she has clearly met the first prong of the test.15 See 42
U.S.C. § 2000e-3(a).
Viewing the evidence in the light most favorable to Haire, we hold that the
second prong also has been satisfied. Ever since a male officer, Bart Thompson,
was hired by LSUPD, Rabalais admits that he has ceased referring officers to
Major Haire and now instead refers them to Major Thompson when they have
questions regarding their duties. Sharon Gonzalez, who worked in LSU Risk
Management alongside Haire and Durham, testified that Haire is “alienated
from administration at the police department,” that “Rabalais doesn’t talk to
her,” and that the situation has “gotten worse since this lawsuit.” Gonzales
further said that Rabalais “demeans” Haire and “keeps her out of meetings.” In
sum, Gonzalez felt that LSU is “taking things away from [Haire].” Haire has
also become ineligible for overtime pay,16 which has an effect on her income.
Thus, although it is probably hyperbole to say as Haire does in her brief, that
“virtually all of her job duties have been removed,” it is nonetheless true that
Haire has put forth modest evidence that her job has changed, that she has been
excluded from meetings, and that her pay may have been affected. Collectively,
these occurrences rise to the level of a Title VII “adverse employment action.”
See McCoy v. City of Shreveport, 492 F.3d 551, 559-60 (5th Cir. 2007) (stating
15
However, Haire’s allegation that the Coaching Letter constitutes retaliation or
reprisal fails, since she did not engage in any protected activity prior to receiving the letter.
The letter was issued on August 26, 2009, the EEOC and LCHR complaints were filed on
September 29, 2009, and her rebuttal was sent on October 21, 2009. The letter, thus, could
not be “retaliation” for an EEOC charge that had yet to be filed.
16
The record contains some evidence substantiating this allegation: Haire produced an
email in which Rabalais issued a directive to Haire stating “I do not want . . . you working
event overtime.” As this decision may have affected Haire’s income, it arguably constitutes
an adverse employment action. See Gomez v. Orleans Parish Sch. Bd., 2005 U.S. Dist. LEXIS
17810, at 41 (“[P]laintiff’s claims of Title VII retaliation based on her . . . having been denied
the opportunity to perform overtime work . . . might conceivably be classified as [an] adverse
employment action[].”)
14
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that “The anti-retaliation provision [of Title VII], unlike the substantive
[discrimination] provision is not limited to discriminatory actions that affect the
terms and conditions of employment . . . Even though our precedent recognizing
only ‘ultimate employment decisions’ as actionable adverse employment actions
remains controlling for Title VII discrimination claims . . . retaliation claims
require[] a closer look . . .”).17 Drawing all inferences in favor of Haire, the
occurrences are more than “petty slights, minor annoyances, and simple lack of
good manners” that employees regularly encounter in the workplace, and which
the Supreme Court has recognized are not actionable retaliatory conduct. See
Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008) (internal
quotation marks omitted).
The third prong of the Title VII prima facie retaliation case is the “causal
connection” between the protected activity, in this case the filing of the EEOC
charge, and the adverse employment action. As proof that she has satisfied this
prong, Haire points to circumstantial evidence – the close timing (roughly three
months) between the EEOC charge and the naming of Rabalais as permanent
Chief. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)
(noting that “very close” temporal proximity between the protected activity and
retaliatory conduct is enough to make a prima facie showing of causation but
holding that a twenty-month period was not close enough). Here, Rabalais was
named interim Chief in August 2009, Haire filed her EEOC charge on
September 29, 2009, and Rabalais was named permanent Chief in January
17
The district court brushed by the adverse employment action prong of the retaliation
analysis, focusing only on the performance evaluation Haire received and ultimately
concluding that the evaluation did not satisfy the prong because it “did not result in demotion,
decrease in pay, decrease in benefits, termination, nor has LSU relied on the evaluation.” But,
as outlined above, the performance evaluation is not the only action at issue in the retaliation
analysis. Also at issue are the alleged changes in Haire’s job duties and income that followed
from the Collins incident but which were not directly tied to the performance evaluation.
15
Case: 12-30290 Document: 00512248636 Page: 16 Date Filed: 05/21/2013
No. 12-30290
2010.18 This timing, coupled with the gradual changes in Haire’s duties noted
by Sharon Gonzalez, is enough to satisfy the third prong. See O’Neal v. Ferguson
Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (stating “[A] jury could have
inferred . . . that the reallocation of [an employee’s] responsibilities soon after
the filing of the EEOC claim . . . provid[ed] the causal connection between the
EEOC filing and the adverse employment action.”).
Even if Haire established a prima facie case of retaliation under Title VII,
she must respond to LSU’s alleged non-retaliatory reason for her failure to
receive a promotion and show that the retaliation was a “but for” cause of the
adverse employment decision. Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th
Cir. 1996) (internal quotation marks omitted). To defeat a motion for summary
judgment, a Title VII plaintiff, like Haire, must show there is a conflict in
substantial evidence on this ultimate issue. Long, 88 F.3d at 308 (inset
quotation marks omitted). “Evidence is substantial if it is of such quality and
weight that reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions.” Id. (inset quotation marks
omitted). For the same reasons outlined supra herein with regard to
discrimination, we hold that Haire has met her burden of showing a conflict in
substantial and relevant evidence, as LSU and Haire make competing
allegations, and credibility determinations are best left for trial. Thus, the
district court erred in granting LSU summary judgment on the retaliation
claims.
VI.
We conclude that the district court erred in granting summary judgment
to LSU because Haire has produced evidence sufficient to raise a genuine issue
18
Having found the second prong not to be satisfied, the district court did not reach the
third, “causal link” prong.
16
Case: 12-30290 Document: 00512248636 Page: 17 Date Filed: 05/21/2013
No. 12-30290
of material fact of whether LSUPD’s gender discrimination motivated the
University’s decision to promote Rabalais instead of Haire. We further conclude
there exists a genuine issue of material fact of whether the University retaliated
against Haire for sending a rebuttal letter to the Chancellor and filing EEOC
and LCHR complaints. The judgment of the district court dismissing Haire’s
complaint is therefore REVERSED and VACATED, and the case is REMANDED
for proceedings not inconsistent with this opinion.
REVERSED, VACATED
and REMANDED.
17