UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA AMB Plaintiff vs TLG Defendant * * * * * * * CIVIL ACTION NUMBER: SECTION:

: MAG. DIV. 3 - JURY TRIAL

DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT MAY IT PLEASE THE COURT: This matter comes before the Court on a charge of discrimination from the Equal Employment Opportunity Commission. (EEOC) The suit was filed within ninety days of the Dismissal and Notice of Rights mailed October 29th, 2008,1 which found no violation of any employment laws, specifically Title VII of the Civil Rights Act of 1964, 42 USCA 2000e, pursuant to which Plaintiff alleged gender discrimination.

Defendants Exhibit E originally submitted with Plaintiffs Deposition

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FACTS AND PROCEDURAL HISTORY Plaintiff worked at the NOFA (NOFA), owned and operated by LL(L) from September 11th, 2006 until her employment was terminated, on or about November 12th , 2007. Her position was office manager. She reported her office duties as follows: Basically overall office management as far as handling ordering, payroll, attendance for students, attendance for employees, right hand to the school leader, typing up all documents and working hand in hand with human resources in Michigan, making sure everything was sent correctly, making sure everything was -all paperworkbasically I was like a human resources as well. Had to do drug testing, schedule interviews. 2 The principal at the time was Ms. CM, Plaintiffs supervisor. Plaintiff signed an employment letter on September 22nd, 2006. 3 Plaintiff signed a copy of the L Employee Handbook on December 15th, 2006. 4 The letter and the handbook each contain express provisions that Plaintiff was hired as an at-will employee. On November 1st, 2007, Ms. B and a male teacher, Mr. DB, were assisting Ms. CM in resolving an altercation between two female students, and their conduct resulted in both of them being suspended. In accord with the facts as described by Plaintiff in the Complaint in the present matter, shortly after 11:30 am, Mr. DB asked Plaintiff to call Mr. PP, a police officer who was a resource for the school. Plaintiff phoned Ms. CM at that time in the presence of Mr. DB to

Deposition of Antrelle Banks (AB), p. 9-10. Exhibit D-2 Exhibit F

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inquire the reason for calling Mr. PP, but Ms. CM did not answer. The telephone line remained open, and Plaintiff and Mr. DB continued their conversation. Plaintiff and Mr. DB escorted the girls who had been fighting to Ms. CMs office per her instructions. Then, Mr. DB went back to teach his class.5 Plaintiff continued to work with Ms. CM to resolve the situation, calling the police and the parents of the children who were fighting. Plaintiff went to her car during her lunch break, and on the way was speaking to NOPD officers who wanted to know personal information about Ms. CM.6 Plaintiff contacted Ms. CM to inform her of this. Plaintiff then did not return to her desk until after 2 p.m., according to a letter from Ms. CM. Apparently the girls began fighting again and needed to be returned to the principals office.7 After assisting the security guard to return the fighting girls to the principals office, Mr. DB returned to his class.8 Ms. B again called the police. This time the police arrived as well as the girls parents. The girls were released to the custody of their parents after spending some time sitting in the police car. At the end of the day, both Plaintiff and Mr. DB received a letter indicating that Ms. CM had heard a recording of a phone call during the day, and she would meet with each of them the following day to discuss any disciplinary action Ms. CM deemed
5

See Deposition of Darren Bickam (DB), p. and Deposition AB, p. See Deposition AB, p. ? See Deposition DB, p. See Deposition DB, p.

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appropriate the next day. The next day, Ms. CM met with each of them and explained that they would be suspended pending a review of the events that occurred that day, including statements that were made and recorded on Ms. CMs voice mail. After reviewing the matter, Ms. CM, with the evident concurrence of the district manager of L, Dr. E, and Human Resources Manager, DG, decided to terminate Plaintiffs employment. First, Plaintiff was informed by a letter from Ms. CM dated November 16th, 2007, that the voice recording was not the basis of the decision to terminate her employment.9 Next, on November 29th, 2007, Plaintiff received a letter from DG stating that Ms. CM decided to terminate Plaintiff because Plaintiff ...interfered with, and acted contrary to, her directives. 10 Mr. DB, meanwhile, was informed that he was going to be allowed to return to work as a teacher, with the punitive measure that he would not be paid for the period where he was suspended along with Plaintiff while L decided how it wanted to proceed. The new office manager hired by Defendant was a female, Ms. HF. Plaintiff filed a grievance with the EEOC. The EEOC found no violation of any employment law by their Notice of Dismissal, also known as a right to sue letter, dated October 29th, 2008. Plaintiff filed the Complaint in the present action within ninety days of the Notice of

See Exhibit B Exhibit A

10

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Dismissal. In the Complaint, Plaintiff alleges that she and Mr. DB engaged in the same conduct.11 Further, she alleges that the fact that Mr. DB was only suspended where she was fired indicates that she was terminated because of her gender, female.12 The Complaint also alleges retaliation, but counsel for Plaintiff stipulated at Plaintiffs deposition on the record that they were not pursuing any retaliation claim.13 LAW AND ARGUMENT The undisputed facts do not support a claim for discriminatory employment practices based on gender under Title VII of the Civil Rights Act of 1964, 42 USCA 2000e as a matter of law for the following reasons. First, Plaintiff and Mr. DB are not similarly situated employees, an essential element of a Title VII claim. Second, Plaintiff and Mr. DB did not engage in the same conduct which resulted in Plaintiff being terminated and Mr. DB being suspended. Third, summary judgment is appropriate since Defendant asserts and Plaintiff fails to provide evidence on this essential element that Plaintiff and Mr. DB are similarly situated employees, as defined by the caselaw. Finally, even if Plaintiff is able to make a prima facie case that Defendant discriminated based on her gender, then Defendant asserts that there are sufficient non-

11

See Complaint, ? See Complaint, ? See Deposition AB, p. ?

12

13

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discriminatory bases for her termination, namely her supervisor Ms. CMs perception that Plaintiff interfered with and acted contrary to her directives. 14 I. Elements of a Title VII gender discrimination claim. Plaintiff must show that Defendant favored males in their employment practices. A concise statement of the elements of a Title VII gender discrimination claim is as follows: To establish a prima facie case, the plaintiff must show that (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) that the position was filled by someone outside of the protected class or that others outside the protected class who were similarly situated were more favorably treated. Ross v. University of Texas at San Antonio, 139 F.3d 521, 526 (5th Cir. 1998). Once a plaintiff establishes a prima facie case of discrimination, a presumption of discrimination arises and the burden shifts to the defendant employer to produce a legitimate, non-discriminatory reason for the challenged action. After the defendant employer satisfies its burden of producing a legitimate, non-discriminatory reason for the challenged actions, the burden returns to the plaintiff to raise a genuine issue of material fact that the non-discriminatory reason offered by the defendant is merely pretextual. Willis v. Coca Cola Enterprises, Inc., 445 F.3d at 420. Admire v. Strain, 566 F. Supp. 2d 492, 498 (E.D. La. 2008). In the first part of the above analysis, Elements 1-3 are not in question, as is often the case. However, the facts in the present matter clearly show that neither prong of element 4 is satisfied. First, the office manager position vacated at Ms. B termination was filled by a woman. Second, Plaintiff has to show that she is similarly situated to another employee outside of the class that was treated more favorably. II. Plaintiff and Mr. DB are not similarly situated employees.

14

See Exhibit A

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Mr. DB, the comparator submitted by Plaintiff, was not a similarly situated employee according to the federal caselaw on gender discrimination claims. It should first be noted that the Courts analysis requires both that the employees status and the misconduct resulting in the adverse employment action be similar, to wit: The Fifth Circuit holds that in disparate treatment cases involving separate incidents of misconduct, employees are similarly situated only if the circumstances and misconduct of the comparator employee are "nearly identical" to that of the plaintiff. Berquist v. Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007). Thus similarly situated applies both to the circumstances of the employee, such as their job duties, as well as the misconduct at issue. For the reasons described below, Plaintiff is not similarly situated because neither the circumstances nor the misconduct was nearly identical to the proffered comparator, Mr. DB. A. Plaintiffs employment circumstances are not nearly identical to those of Mr. DB

The Courts look to the employment circumstances of the Plaintiff and proffered comparator(s) to determine if their status is similar as a first stage in determining if the employees are similarly situated as comprehended by element 4 of the caselaw governing discrimination claims. In the present case, Plaintiff and Mr. DB are not similarly situated because their employment circumstances are not nearly identical. The Fifth Circuit considers the following factors determinative: We have considered the requirement for one employee to be similarly situated to another on any number of occasions. Employees with different supervisors, who work for different divisions of a company or who were the subject Page 7 of 11

of adverse employment actions too remote in time from that taken against the plaintiff generally will not be deemed similarly situated. Likewise, employees who have different [*260] work responsibilities or who are subjected to adverse employment action for dissimilar violations are not similarly situated. This is because we require that an employee who proffers a fellow employee as a comparator demonstrate that the employment actions at issue were taken "under nearly identical circumstances." The employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories. Lee v. Kan. City S. Ry. Co, 574 F.3d 253, 260 (5th Cir. La. 2009) Examination of the Lee factors yields the conclusion that the circumstances of the Plaintiff and Mr. DB are not nearly identical. The first and foremost reason that the employment circumstances of Plaintiff and Mr. DB are not nearly identical is that they have substantially different work responsibilities. Plaintiff, as an administrative office manager had the following job duties: Basically overall office management as far as handling ordering, payroll, attendance for students, attendance for employees, right hand to the school leader, typing up all documents and working hand in hand with human resources in Michigan, making sure everything was sent correctly, making sure everything was -all paperworkbasically I was like a human resources as well. Had to do drug testing, schedule interviews. 15 These job duties are noticeably different from that of a teacher. A teacher does not handle ordering, payroll, or being a right hand to the school leader. A teacher teaches the students. Mr. DB was a certified teacher with specialized training

15

See Deposition AB p. 9-10

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in teaching students.16 He reported his job duties as follows: Well, my job duty was to teach my class, and like every teacher have cafeteria duty and morning duty.17 To emphasize their differing duties, Mr. DB stated in his deposition that he did not share her duties nor his, to wit: 1...because she had the payroll, she had 2 to run the school, order supplies that -3 Q. Did you have to do payroll, run 4 the school or order supplies? 5 A. Oh, no, never, never, huh-uh. 6 Never. 7 Q. And did she have to teach her 8 kids? 9 A. No.18 So Defendants have provided affirmative evidence that Plaintiff performed the duties of an office manager, and Mr. DB performed the very different duties of a teacher. Thus, not only is it intuitively clear, but there is also affirmative evidence that Plaintiffs and Mr. DBs job responsibilities were different. The Lee Court held that ...employees who have different work responsibilities...are not similarly situated.Id. No further facts or legal precedence is necessary to conclude that the Parties are not similarly situated and no discrimination lies.

16

See Deposition DB p. 12 Deposition DB p. 13 Deposition DB p. 33

17

18

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However, Defendants establish below that the conduct resulting in Plaintiffs adverse employment decision was also substantially different from that of Mr. DB. B. Plaintiffs and Mr. DBs misconduct was not nearly identical.

The facts clearly demonstrate that Plaintiff was terminated for different conduct than the conduct for which Mr. DB suffered a suspension. The caselaw requires that misconduct resulting in Plaintiffs termination be nearly identical to that of the comparator, Mr. DB, to wit: And, critically, the plaintiff's conduct that drew the adverse employment decision must have been "nearly identical" to that of the proffered comparator who allegedly drew dissimilar employment decisions. If the "difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer," the employees are not similarly situated for the purposes of an employment discrimination analysis. Id. It is true that at least some of the events that led to the adverse employment decision of both Plaintiff and Mr. DB occurred on the same day and that the decision was made by the same person who had supervisory authority over each of them. However, each of them was disciplined for different misconduct. Thus, they should be deemed not similarly situated and no discrimination found and summary judgment granted, as follows. First, Plaintiff was terminated for her role in communicating with parents and students at a time when Mr. DB was teaching his class. In her letter to Ms. B dated November 16th, 2007, Ms.CM wrote as follows: Your decision to leave your desk at approximately 11:45 a.m. and return at approximately 2:10 p.m. to handle or interfere with a decision that the school leader had made is unprofessional conduct and insubordinate...This decision was not Page 10 of 11

directly based on the recording but your actions. 19 Thus, Ms. CM expresses clearly that she considered Ms. B conduct unprofessional and insubordinate, not directly based on the recording. During the time mentioned by Ms. CM as being the period when the when the unprofessional and insubordinate conduct occurred, Mr. DB was teaching his class. On the other hand, the only misconduct engaged in by Mr. DB were the remarks on the phone to the girl to tell Ms. CM that she was with Mr. DB. Evidently, Ms. CM did not consider this a sufficient reason to terminate Mr. DB.

19

Exhibit B

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