Allen v. Our Lady of the Lake

Case: 22-30546 Document: 00516739994 Page: 1 Date Filed: 05/05/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
May 5, 2023
No. 22-30546 Lyle W. Cayce
____________ Clerk
Vanoy Allen,
Plaintiff—Appellant,
versus
Our Lady of the Lake Hospital, Incorporated,
Defendant—Appellee,
Our Lady of the Lake Hospital Physicians Group, L.L.C.,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-575
______________________________
Before Richman, Chief Judge, and Stewart and Dennis, Circuit
Judges.
Per Curiam:*
Vanoy Allen alleges she was subjected to a hostile work environment
due to her race while employed at Our Lady of the Lake Hospital, Inc.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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(Hospital) and brings a claim under 42 U.S.C. § 1981. She further alleges
that this treatment constituted constructive discharge in violation of Title VII
and 42 U.S.C. § 1981. The district court granted summary judgment in favor
of the Hospital on both claims. Because Allen failed to raise a genuine dispute
of material fact as to whether her treatment rose to the level of a hostile work
environment or constructive discharge and the evidence is insufficient as a
matter of law to support her claims, we affirm.
I
Allen began working as a registered nurse (RN) at the Hospital in
2011, then in 2012 was in the Cardiac Intensive Care Unit (CICU), and
transferred to the Heart and Vascular Universal Cardiac Unit (HVCU) in
2013. In December 2014, Allen changed her employment status from RN to
PRN, which indicated that she worked on an “as needed” basis to provide
supplemental staffing. Evidence in the record indicates PRNs did not receive
the same benefits as fulltime nurses. She continued to work as a PRN until
she resigned in October 2018.
When Allen was categorized as an RN, she performed some shifts as
a charge nurse, a position with higher pay. However, she stopped receiving
charge nurse shifts when she voluntarily changed her employment status to
PRN. Kathy Hussain, a supervisor, testified that generally, the expectations
were that PRN nurses would not perform in the charge role and generally
would not admit patients directly from the Operating Room immediately post
open heart surgery.
Allen alleges she faced discrimination while working at the Hospital.
She filed a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC) on December 15, 2017, alleging discrimination based
on race, age, and retaliation. The EEOC found no cause and issued a right to
sue letter in 2019. Allen then filed this lawsuit pro se.
2
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In her complaint, Allen alleged racial discrimination, racial
harassment, and retaliation in violation of Title VII of the Civil Rights Act1
and Louisiana state law; racial discrimination in violation of 42 U.S.C.
§ 1981; and intentional infliction of emotional distress and age discrimination
under Louisiana state law. The Hospital filed a motion for partial dismissal,
and the district court dismissed: Allen’s race discrimination, harassment, age
discrimination, and intentional infliction of emotional distress claims brought
under state law; hostile work environment and harassment claims to the
extent they went beyond the scope of the EEOC charge; and allegations
relating to discrete acts of discrimination more than three hundred days
before the EEOC charge.
Allen then retained counsel and filed an amended complaint, which
asserted a race-based hostile work environment claim under 42 U.S.C. § 1981and constructive discharge and retaliation claims under Title VII and 42
U.S.C. § 1981. The Hospital filed a motion for summary judgment, which
Allen opposed as to her hostile work environment and constructive discharge
claims. She did not oppose the motion for summary judgment regarding her
retaliation claim.
The district court granted the Hospital’s motion for summary
judgment. The district court entered final judgment, and Allen timely
appealed the dismissal of her hostile work environment and constructive
discharge claims. This court has jurisdiction over this appeal pursuant to 28
U.S.C. § 1291.
The district court summarized Allen’s evidence as:
[T]he sum of Plaintiffs[’] competent summary judgment
evidence shows the following: Dr. Boedefeld publicly
_____________________
1
42 U.S.C. § 2000e, et seq.
3
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complained that Plaintiff was hired only because she was Black
(in 2012/2013); Dr. Boedefeld twice refused to discuss cases
with Plaintiff (in 2012/2013); Dr. Boedefeld twice publicly
yelled at Plaintiff (in 2012/2013); Dr. Boedefeld once
“questioned” Plaintiff’s supervisor (in 2017); a co-worker
once publicly referred to Plaintiff as a “bitch” (in 2016);
Supervisor Hussain once said at a staff meeting “Vanoy you
don’t have a voice” (unspecified date); Plaintiff once
requested to work a shift in the CICU, and the shift was
awarded instead to two “full-time nurses” from another unit
(in 2018); and, finally, Supervisor Hussain once refused
Plaintiffs[’] request for a meeting to discuss Plaintiff’s annual
performance review (in 2018).
The district court concluded that “[e]ven assuming that all of the foregoing
slights were racially motivated, the aggregate of these insults falls well-short
of what is required to save a hostile work environment claim from summary
judgment” and that the burden for a constructive discharge claim was even
higher.
Allen argues that the district court also should have credited
(1) evidence that white nurses Paulette Savoy and Dani Coss were given
charge nurse duties while under PRN status, which resulted in higher pay,
even though Allen was not; (2) testimony from Melissa White, a secretary,
indicating “that white nurses were given charge nurse shifts 90% of the
time;” (3) testimony from Barbara Hill that Dr. Boedefeld made generalized
complaints about black nurses when Allen was not present and “reneged on
a directive to fire a nurse upon learning she was white, and not black;”
(4) unauthenticated interview notes from Samantha Valentine showing that
white nurses were permitted to attend a training that black nurses were not;
and (5) evidence a co-worker once referred to Allen as “hostile” when
talking to a supervisor.
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II
We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court.2 “We will affirm the district
court’s decision if we ‘find that no genuine issue of material fact remained
for trial and that judgment was proper as a matter of law.’”3 “An issue of
material fact is genuine if a reasonable jury could return a verdict for the
nonmovant,”4 and the “facts must be particularized, not vague or
conclusory.”5 “While we review the evidence in the light most favorable to
the nonmoving party, ‘conclusional allegations and unsubstantiated
assertions may not be relied on as evidence by the nonmoving party.’”6 We
will first address Allen’s hostile work environment claim and then address
her constructive discharge claim.
A
Allen argues that the district court erred in dismissing her hostile work
environment claim. As the district court explained, courts apply the same
rubric to analyze racial discrimination claims under Title VII and under 42
_____________________
2
See West v. City of Hous., 960 F.3d 736, 740 (5th Cir. 2020) (per curiam) (citing
Petzold v. Rostollan, 946 F.3d 242, 247 (5th Cir. 2019)).
3
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 327 (5th Cir. 2009) (quoting
Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir. 1990)); see also Fed. R. Civ.
P. 56(a).
4
Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
5
Guzman v. Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021) (citing Kariuki
v. Tarango, 709 F.3d 495, 505 (5th Cir. 2013)).
6
West, 960 F.3d at 740 (citing Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir.
2011)).
5
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U.S.C. § 1981.7 “To survive summary judgment on a hostile work
environment claim based on race . . . discrimination, a plaintiff must show
that (1) she is a member of a protected class; (2) she suffered unwelcomed
harassment; (3) the harassment was based on her membership in a protected
class; (4) the harassment ‘affected a term, condition, or privilege of
employment’; and (5) ‘the employer knew or should have known’ about the
harassment and ‘failed to take prompt remedial action.’”8 “To be
actionable, the work environment must be ‘both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one
that the victim in fact did perceive to be so.’”9
The district court’s analysis primarily assessed the fourth factor,
whether the harassment complained of affected a term, condition, or
privilege of employment. “To affect a term, condition, or privilege of
employment, the harassment must be sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment.”10 “The alleged conduct must be objectively and subjectively
hostile or abusive,” and “[t]he totality of the employment circumstances
determines whether an environment is objectively hostile.”11 “Although no
single factor is determinative, pertinent considerations are (1) ‘the frequency
of the discriminatory conduct’; (2) ‘its severity’; (3) ‘whether it is physically
_____________________
7
See Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399 (5th Cir. 2021); Lauderdale v.
Tex. Dep’t of Crim. Just., Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007).
8
West, 960 F.3d at 741 (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.
2002)).
9
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
10
West, 960 F.3d at 741-42 (quoting Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d
473, 479 (5th Cir. 2008)).
11
Id. at 742 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23 (1993)).
6
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threatening or humiliating, or a mere offensive utterance’; and (4) ‘whether
it unreasonably interferes with an employee’s work performance.’”12 In
determining whether summary judgment is appropriate, we consider
whether a reasonable jury could find the conduct so severe or pervasive as to
alter a term or condition of employment.13 We agree with the district court
that Allen failed to provide evidence that would defeat summary judgment.
1
We begin by analyzing whether the evidence credited by the district
court is sufficient for Allen’s claim to survive summary judgment. First,
although we do not require a plaintiff to show a certain number of instances
of harassment,14 Allen has failed to show that the harassment she faced was
frequent.15 The evidence credited by the district court consists of ten
_____________________
12
Id. (quoting Harris, 510 U.S. at 23).
13
See Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 436 (5th Cir. 2005).
14
See E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007) (“Under
the totality of the circumstances test, a single incident of harassment, if sufficiently severe,
could give rise to a viable Title VII claim as well as a continuous pattern of much less severe
incidents of harassment.” (citations omitted)).
15
Compare West, 960 F.3d at 742 (concluding plaintiff failed to show her
harassment was frequent or pervasive when some conduct occurred “once,” “twice,” or
“occasionally” and plaintiff failed to provide evidence of frequency of “other complained-
of conduct”), Mendoza v. Helicopter, 548 F. App’x 127, 129 (5th Cir. 2013) (per curiam)
(unpublished) (“[T]he complained of conduct occurred sporadically over a several year
period and cannot accurately be described as pervasive.”), and Hockman v. Westward
Commc’ns, LLC, 407 F.3d 317, 328-29 (5th Cir. 2004) (concluding conduct was not
pervasive when the plaintiff “did not even estimate how many times [the] conduct
occurred”), with Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 439, 443 (5th Cir. 2011)
(holding a genuine dispute existed when the plaintiff “endured a pattern of name-calling of
a half-dozen times daily” that “may have interfered with his pecuniary interests” and
when, “[o]n many occasions, there were incidents of physical intimidation and/or
violence” involving the plaintiff’s supervisor), Lauderdale v. Tex. Dept. of Crim. Just., 512
F.3d 157, 164 (5th Cir. 2007) (finding harassment pervasive when plaintiff received
unwanted phone calls “ten to fifteen times a night for almost four months”), and Farpella-
7
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incidents over seven years. Allen argues that the district court erred by
requiring her to show she suffered from severe and pervasive conduct
amounting to a certain number of harassing incidents. Allen is correct that
the standard is severe or pervasive and that, by requiring conduct to be both
severe and pervasive, the district court “impose[d] a more stringent burden
on [her] than required by law.”16 Even so, none of her allegations
substantiated by evidence are sufficiently egregious that they are actionable
without being pervasive.17
Additionally, Allen has failed to show that the alleged actions were
severe, physically threatening, or humiliating. Hostile work environment
claims are not intended to function as a “general civility code.”18 Sporadic
use of abusive language, one shift denial, and one refused meeting are not
severe or humiliating under the governing standard,19 and Allen has not
alleged any physical threats.
_____________________
Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (concluding harassing
conduct was pervasive when it was described as occurring “two or three times a week”).
16
See Harvill, 433 F.3d at 435.
17
See id. at 435-36; Dailey v. Shintech, Inc., 629 F. App’x 638, 640, 644 (5th Cir.
2015) (per curiam) (unpublished) (affirming grant of summary judgment for employer on
hostile work environment claim even though plaintiff’s supervisor called him “a ‘black
little motherf—r’ on at least two occasions,” the supervisor said “he would ‘kick his black
a—s,’” and a coworker called plaintiff “a ‘ni—er’”).
18
See Lauderdale, 512 F.3d at 163 (“Title VII . . . is not a ‘general civility code,’ and
‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the ‘terms and conditions of employment.’”
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998))).
19
See Faragher, 524 U.S. at 788 (“Properly applied, [the standards for judging
hostility] will filter out complaints attacking ‘the ordinary tribulations of the workplace,
such as the sporadic use of abusive language, gender-related jokes, and occasional
teasing.’”) (quoting B. Lindemann & D. Kadue, Sexual Harassment in
Employment Law 175 (1992)); Vallecillo v. U.S. Dep’t of Hous. & Urb. Dev., 155 F.
App’x 764, 767 (5th Cir. 2005) (per curiam) (unpublished) (concluding that supervisors
8
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Finally, Allen has not alleged that these actions prevented her from
succeeding in the workplace. On the contrary, she argues that “[t]he fact
that Allen continued to perform her job well, and that [the Hospital] did not
discipline her, or terminate her employment in the traditional sense, should
not detract from [Allen]’s showing of pervasive or severe conduct sufficient
to alter the terms and conditions of her employment.”
Therefore, even assuming, as the district court did, that all the actions
were based on Allen’s race, the evidence is insufficient to survive summary
judgment.20 Objectively, a reasonable person would not find the actions
Allen experienced to be offensive enough to constitute a hostile work
environment.21 We now turn to the evidence that Allen argues was
improperly credited or not credited by the district court.
_____________________
calling the plaintiff “Che Guevara” and an “aggressive Hispanic” were “not sufficiently
severe or pervasive to constitute a hostile work environment” “even if these statements
can be classified as racially offensive”).
20
See, e.g., Friend v. McAdams, 861 F. App’x 825, 830 (5th Cir. 2021) (per curiam)
(unpublished) (concluding evidence African American employee was assigned to work
under captain who (1) did not like black people; (2) screamed at her; (3) did not name her
to her preferred position’ (4) refused to meet with her; (5) stated she would not be around
much longer; (6) directed a supervisor to write up things she did wrong; (7) became upset
when her name was mentioned; and (8) required her in her role as a police officer to dismiss
tickets issued to white people did not rise to the level of severe or pervasive); Harris v. Drax
Biomass Inc., 813 F. App’x 945, 948 (5th Cir. 2020) (per curiam) (unpublished) (holding
evidence that plaintiff (1) was yelled at for not doing job correctly; (2) requested but did not
receive training on certain equipment; (3) heard racist comments made by supervisor to a
different African American employee; and (4) would not be allowed by supervisor to wait
in a group of African American employees for work to begin to be insufficiently severe or
pervasive).
21
See Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009).
9
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2
Allen argues that the district court erred by crediting testimony from
Hussain that PRN nurses would generally not perform the charge nurse role.
Allen argues that (1) her testimony and the testimony of Coss and Savoy
discredit the testimony of Hussain; (2) the written guidelines were not
created until after she was denied charge nurse shifts; and (3) Hussain is an
interested witness. Allen’s testimony included “that she believed she was
denied charge nurse shifts because of her race” and that she asked Hussain
and her supervisors why she was not given charge nurse shifts and they
responded with no reason until eventually informing her that it was because
she was a PRN. Coss and Savoy’s testimony included that they were white
and received charge nurse shifts despite being PRN nurses.
The district court explained that Allen “fail[ed] to specifically cite
evidence controverting that PRN nurses ‘provide supplemental staffing’”
and “traditionally did ‘not perform in the charge role and generally would
not admit patients directly from the Operating Room immediately post open
heart surgery.” The district court, citing Allen’s opposition to summary
judgment, concluded that “a fair reading of her evidence tends to support”
certain shifts not generally being available to nurses with PRN status. In
explaining why it did not credit Allen’s evidence of discriminatory shift
denials, the district court stated that “Plaintiff contends that from 2014
onward, [the Hospital] systematically refused to schedule her for charge
nurse shifts or for fresh post open heart surgery shifts—i.e., precisely the
shifts that were not traditionally available to PRNs under [the Hospital’s]
unwritten and written guidance.”
Evidence that two white PRN nurses received charge nurse shifts,
Allen’s supervisors did not immediately provide her with an explanation for
her shift assignments, and a policy not initially in writing does not create a
10
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genuine dispute of material fact regarding a hostile work environment. Allen
admits that she acted as a charge nurse while she worked as an RN but
stopped receiving charge nurse shifts when she voluntarily changed to PRN
status. Additionally, Allen admitted in her opposition to summary judgment
that the Hospital had a policy regarding tasks for PRN nurses, though she
disputed that it was consistently applied. Allen has failed to show a genuine
dispute of material fact as to why she was denied charge nurse shifts after
changing to PRN status.
3
Allen argues that the district court “erroneously raised or altered
Allen’s burden of proof and erroneously declined to consider CSR White’s
deposition testimony.” In her deposition, White testified that she could not
remember how often white nurses would be assigned charge nurse shifts and
could not remember having previously told Allen’s counsel that ninety
percent of the time charge shift nurses were white. However, Allen’s counsel
played back a recording of a prior conversation to refresh White’s memory.
After her recollection was refreshed, White was asked: “Is that correct, then,
your belief that about 90 percent of the time the white nurses would be given
charge nurse shifts?” and responded: “Yes, because it may have had seven
Caucasian nurses versus three black nurses, but the seven Caucasian nurses
may have had more experience at being a charge nurse.”
The district court stated that if it was established that ninety percent
of the time white nurses were assigned to be charge nurses, “conceivably”
that “could be relevant to Plaintiff’s remaining claims of hostile work
environment and constructive discharge.” However, it stated “that this
testimony is too vague and conclusory for purposes of creating an issue of fact
at summary judgment. Accordingly, it is disregarded.”
11
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Allen argues the district court placed a higher burden on her than is
appropriate at summary judgement because it required her to “‘definitively’
establish or prove that white nurses were given charge nurse shifts 90% of the
time” whereas she only needed to raise a genuine issue of fact. Further, she
argues that the testimony was not vague or conclusory. However, we agree
with the district court that, especially in light of the conflicting evidence that
Allen was denied the shifts due to her status as a PRN, White’s testimony
was too vague to raise a genuine issue of fact. It was proper for the district
court to disregard the evidence on this ground.22
4
Finally, we need not decide whether the district court erred by not
crediting (1) testimony from Barbara Hill that Dr. Boedefeld made
generalized complaints about black nurses when Allen was not present and
“reneged on a directive to fire a nurse upon learning she was white, and not
black;” (2) unauthenticated interview notes from Samantha Valentine
showing white nurses were permitted to attend training that black nurses
were not; and (3) evidence that a co-worker once referred to Allen as
“hostile” when talking to a supervisor. Assuming arguendo that this evidence
is credible, it shows that complaints were made about black nurses outside of
_____________________
22
See Guzman v. Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021) (“[W]hen
we have held self-serving affidavits or depositions insufficient to create a fact issue, it is
because their contents were either conclusory, vague, or not based on personal
knowledge.” (citations omitted)); Kariuki v. Tarango, 709 F.3d 495, 505 (5th Cir. 2013)
(“[W]ithout more, a vague or conclusory affidavit is insufficient to create a genuine issue
of material fact in the face of conflicting probative evidence.” (citation omitted)); TIG Ins.
Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002) (stating a non-movant
cannot defeat summary judgment by presenting “conclus[ory] allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation” (citation omitted)).
12
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Allen’s presence,23 Allen may have missed one training event,24 and a
coworker once insulted Allen. Even were we to consider this additional
evidence, the totality of the evidence is insufficient to support a hostile work
environment claim.
Allen argues for the first time in her reply brief that other evidence
also created genuine issues of material fact. However, issues raised for the
first time in a reply brief are forfeited.25
We agree with the district court that Allen has failed to raise a genuine
dispute of material fact regarding whether the harassment was severe or
pervasive. We therefore do not address the remaining factors. Because the
district court did not err in determining that there was no genuine dispute of
material fact as to Allen’s hostile work environment claim and that the
Hospital was entitled to summary judgment as a matter of law, we affirm the
dismissal of Allen’s hostile work environment claim.
B
Allen argues that the evidence above creates genuine issues of material
fact which preclude the Hospital’s motion for summary judgment as to
Allen’s constructive discharge claim under 42 U.S.C. § 1981 and Title VII.
As the district court ably explained, “[t]o prove a constructive discharge, a
‘plaintiff must establish that working conditions were so intolerable that a
_____________________
23
See Septimus v. Univ. of Hous., 399 F.3d 601, 612 (5th Cir. 2005) (examining sex-
based hostile work environment and stating “[a]ll of [plaintiff]’s other summary judgment
evidence on this claim pertained to other women in the [company], not [plaintiff], and
therefore is not relevant”).
24
See Harris v. Drax Biomass Inc., 813 F. App’x 945, 948 (5th Cir. 2020) (per
curiam) (unpublished) (holding evidence not severe or pervasive even though plaintiff
requested but did not receive training on certain equipment).
25
See United States v. Ponce, 896 F.3d 726, 727 (5th Cir. 2018).
13
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reasonable employee would feel compelled to resign.’”26 This “requires a
greater degree of harassment than that required by a hostile environment
claim.”27 The district court correctly reasoned that because Allen did not
show a sufficiently hostile environment to support a hostile work
environment claim, she cannot succeed on her constructive discharge
claim.28 We therefore affirm the district court’s dismissal of this claim.
C
Finally, Allen argues that the district court erred by failing to rule on
her motion to compel discovery prior to ruling on summary judgment.
According to Allen, the motion to compel discovery requested information
regarding “potential comparators.” The district court reasoned that
comparator evidence could not save Allen’s hostile work environment or
constructive discharge claims “because such evidence is not relevant to the
dispositive issue of whether [Allen] was subjected to objectively severe,
pervasive, and/or intolerable harassment” and Allen had “waived the right
to argue that comparator evidence is relevant . . . by failing to even brief the
issue.” An argument is forfeited if the party with the burden of proof or
persuasion fails to brief it in the district court.29 We therefore do not address
it here.
_____________________
26
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) (quoting Faruki v.
Parsons, 123 F.3d 315, 319 (5th Cir. 1997)).
27
Id. (citing Benningfield v. City of Hous., 157 F.3d 369, 378 (5th Cir.1998)); see also
Lauderdale v. Tex. Dep’t of Crim. Just., 512 F.3d 157, 167 (5th Cir. 2007).
28
See Vallecillo v. U.S. Dep’t of Hous. & Urb. Dev., 155 F. App’x 764, 768 (5th Cir.
2005) (per curiam) (unpublished) (citation omitted).
29
See Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017).
14
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* * *
The judgment of the district court is AFFIRMED.
15