OTIS v. LSU MEDICAL CENTER, (E.D.La. 2001)

PORTEOUS, Judge.

Before this Court is a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure filed by the Defendants, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU"), Mervin Trail, Ronald Gardner, Albert Laville, and Leslye Anne Bass, asserting that Plaintiff Otis's claims present no genuine issues of material fact such that the Defendants are entitled to judgment as a matter of law. The Plaintiff opposed said motion in the form of a Cross-Motion for Summary Judgment. These causes came for hearing on January 31, 2001, and the parties waived oral argument. The Court, having studied the legal memoranda and exhibits submitted by the parties, the record, and the applicable law, is fully advised on the premises and ready to rule.

I. BACKGROUND

Plaintiff Otis, an African-American, was employed as a police office with the LSU campus police at the Medical Center in New Orleans from 1982 until 1999. At all times during Otis's employment, Defendant Bass was the Chief of the Campus Police Department. From 1992 until June 1998, Otis was stationed at a police post inside the Lion's Eye Clinic building along with Carl Robertson, another African-American officer. Otis and Robertson eventually became friends.

In March 1998, Robertson wrote a series of letters to Defendants Laville and Gardner in which he accused Chief Bass of harassment. In addition, Robertson filed a grievance against Chief Bass. Otis claims that after Robertson filed his grievance against Chief Bass, Bass began to retaliate against him because of his friendship with Robertson. Otis bases his claim of retaliation on four separate incidents: (1) Chief Bass assumed responsibility for scheduling weekend police coverage at the eye clinic, thereby precluding Otis and the other officers from coordinating the schedule themselves and swapping overtime hours without the Chiefs permission; (2) Chief Bass ordered that Otis and Robertson remove a microwave and a refrigerator from their post at the eye clinic; (3) Chief Bass sent Otis a memo inquiring into why it took Otis a long time to write his police report of an attempted theft at the clinic; and (4) Chief Bass assigned Otis to a new shift. None of these events resulted in an actual reprimand or official disciplinary action against Otis.

Prior to the shift change mentioned above, Otis took sick leave from the eye clinic. He remained out on sick leave for approximately 14 months prior to his resignation in August 1999. Therefore, Otis never actually worked at his newly assigned post. After resigning his position with LSU, Otis filed the above-captioned lawsuit claiming that he was constructively discharged in retaliation for his association with Robertson in violation of Title VII and 42 U.S.C. § 1983. The Defendants filed the instant motion for Summary Judgment claiming that there are no genuine issues of material fact with regard to Otis's claims of retaliation, such that they are entitled to judgment as a matter of law.

A. The Law on Summary Judgment

The Federal Rules of Civil Procedure provide that a court should grant a motion for summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citingSkotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quotingCelotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RILSAN, 45 F.3d 951, 954 (5th Cir. 1995).

Thus, when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts, and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).

In the present case, Otis claims that he was retaliated against by the Defendants in violation of Title VII of the Civil Rights Act of 1964 for having associated with Carl Robertson. In order to establish a prima facie case of retaliation, a plaintiff must prove: (1) that he engaged in an activity protected by Title VII; (2) that he suffered an adverse employment action; and (3) that there was a causal connection between the activity and the adverse action. See Mattem v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997); Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).

First, the Defendants argue that Otis cannot prove a prima facie case of retaliation under Title VII because Otis did not engage in a protected activity. Assuming the Plaintiff's version of the facts as true for purposes of this motion, it was Robertson who engaged in the allegedly protected activity, not Otis. There is no evidence that Otis actually engaged in such activity himself. Accordingly, Otis has failed to prove a prima facie case of retaliation because he cannot show that he engaged in a protected activity.

Second, the Defendants argue that Otis cannot prove a prima facie case of retaliation under Title VII because he did not suffer an adverse employment action. The law in the Fifth Circuit is clear that Title VII was designed to address only ultimate employment decisions, such as hiring, granting leave, discharging, promoting, and compensating. See Mattern, 104 F.3d at 707 (citing Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)). Absent such an ultimate employment decision prior to the plaintiff's resignation, there can be no adverse employment action.See id. at 709.

In the present case, Otis complained of four specific incidents that he claims were retaliatory in nature. However, none of those incidents qualify as an adverse employment decision because none of those actions constitutes an ultimate employment decision. For example, Otis was not discharged, demoted, denied a promotion, or subjected to a reduction in pay. Accordingly, this Court finds that Otis fails to prove a prima facie case of retaliation under Title VII because he did not suffer an adverse employment decision.

Alternatively, Otis argues that the four events described above amounted to a constructive discharge, and therefore he suffered an adverse employment action. In order to prove that he was constructively discharged, Otis must show that a reasonable person in his position would feel compelled to resign. See Benningfleld v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998) (quoting Landgraf v. USI Film Products, 968 F.2d 427, 429 (5th Cir. 1992)). Furthermore, a constructive discharge claim requires "severity or pervasiveness of harassment than the minimum required to prove a hostile work environment.'" Id. (citingLandgraf, 968 F.2d at 430). In the present case, this Court finds that Otis was not constructively discharged because his allegations do not rise to anywhere near the level of harassment required for a reasonable person to feel compelled to resign. Accordingly, Otis has failed to prove that he was constructively discharged.

Third, LSU argues that Otis cannot prove a prima facie case of retaliation because Otis cannot show a causal connection between a protected activity and the adverse employment action. While this Court already has established that Otis was not engaged in a protected activity and Otis did not suffer an adverse employment action, even if that were not the case, Otis could still not show a causal connection between the two because the only evidence offered to support such a notion are his own allegations. Additionally, Otis was out for 13 months on sick leave between the time of the last alleged act of retaliation and his retirement. Such a lengthy passage of time between the allegedly protected activity and the adverse employment action is much too attenuated to form the basis of a causal connection.

To survive summary judgment, Otis must come forward with specific facts showing that there is a genuine issue for trial. The mere existence of a scintilla of evidence in support of Otis's position is insufficient; instead, there must be evidence upon which a jury could reasonably find in his favor. In the instant case, this Court finds that Otis has presented insufficient evidence to support the notion that there is a causal connection between the filing of Robertson's grievance and the alleged retaliation against Otis. Therefore, Otis has failed to prove a prima facie case of retaliation under Title VII. Accordingly, this Court finds that there are no genuine issues of material fact with respect to Otis's Title VII claim, such that LSU is entitled to a judgment as a matter of law.

Aside from arguing that Otis cannot prove a prima facie case of retaliation under Title VII, LSU argues that it is entitled to sovereign immunity with respect to Otis's Section 1983 claim. Specifically, LSU argues that the Eleventh Amendment bars the Plaintiff's constitutional claim against it because the State of Louisiana is the real party in interest. The Eleventh Amendment to the United States Constitution "`bars suits in federal court by citizens of a state against their own state or a state agency or department.'" Richardson v. Southern Univ., 118 F.3d 450, 452 (5th Cir. 1997) (quoting Delahoussaye v. City of New Iberia, 937 F.2d 144, 146 (5th Cir. 1991) (quoting Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 185-86 (5th Cir. 1986)). Even if the Plaintiff does not name the State of Louisiana as a defendant in the case, the suit may still be barred by the Eleventh Amendment if the state is determined to be the real party in interest. See id.

In Richardson, the Plaintiff brought the action against Southern University alleging federal civil rights violations, as well as state law violations. With respect to Richardson's federal constitutional claims, the Fifth Circuit stated that "it is well established that only upon a showing that Congress expressly intended to abrogate sovereign immunity may we bypass the sovereign immunity inquiry in suits against States or their agencies." Id. at 453 (citing Quern v. Jordan, 440 U.S. 332, 340-45 (1979)). The court determined that Southern University and its Board of Supervisors were arms of the State of Louisiana such that the State of Louisiana was the real party of interest in the case. See id. at 453-56. Accordingly, the Fifth Circuit ruled that Richardson's Section 1983 claim against Southern University was barred by the Eleventh Amendment. See Richardson, 118 F.3d at 453.

In the present action, the Plaintiff brought his Section 1983 claim against the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College. Just as Southern University and its Board of Supervisors were found to be arms of the state in Richardson, this Court finds that LSU's Board of Supervisors is also an arm of the state. Furthermore, in a prior suit brought against LSU's Board, this court ruled that "[a] suit against the Board is effectively a suit against the State of Louisiana." Marino v. Louisiana State Univ. Board of Supervisors, No. CIV.A. 96-1689, 1997 WL 358141 at *3 (E.D.L.A. June 25, 1997). Therefore, this Court finds that the Eleventh Amendment bars Otis's Section 1983 claim against LSU. Accordingly, there is no genuine issue of material fact such that LSU is entitled to a judgment as a matter of law with respect to Otis's Section 1983 claim.

Defendant Bass argues that she is entitled to summary judgment with respect to Otis's federal constitutional claims because she is entitled to qualified immunity in this case. Qualified immunity is designed to "shield from civil liability `all but the plainly incompetent or those who knowingly violate the law.'" Brady v. Fort Bend County, 58 F.3d 173, 173 (5th Cir. 1995) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986). Therefore, as long as the public official's conduct did not violate clearly established constitutional rights, then the official is entitled to qualified immunity. See Jones v. Collins, 132 F.3d 1048, 1052 (5th Cir. 1998). However, even if the official's conduct violates a clearly established constitutional right, the official may be entitled to qualified immunity if his conduct is said to be objectively reasonable.See id. (citing Nerren v. Livingston Police Dep't, 86 F.3d 469, 473 (5th Cir. 1996)).

In the present case, this Court finds that Chief Bass did not violate any clearly established constitutional rights. While Otis has a clearly established constitutional right to associate with whomever he chooses, there is no evidence in the record to indicate that Bass's actions mentioned above constitute a violation of that right. Furthermore, even if Bass's actions could be seen as in violation of a clearly established constitutional right, Bass's actions were objectively reasonable. The actions that Otis complains of in his petition all involve Bass exercising the basic functions of her position as Chief of Campus Police. Inherent in such a position is the desire to administer the department efficiently and professionally. In light of her position and the expectations of such a position, it was reasonable for her to assume control over weekend scheduling and overtime swapping, it was reasonable for her to require Otis and Robertson to remove their personal items from their post at the eye clinic, it was reasonable for her to seek the timely completion of a police report, and it was reasonable for her to change the shift assignments of her officers as she saw fit. Therefore, this Court finds that Chief Bass is entitled to qualified immunity with respect to Otis's constitutional claims. Accordingly, there are no genuine issues of material fact with respect to Otis's constitutional claims against Chief Bass, such that she is entitled to a judgment as a matter of law.

Even if this Court were to find that the Defendants were not entitled to immunity in the present case, the Defendants argue that they are nevertheless entitled to summary judgment with respect to Otis's Section 1983 claims because he cannot prove a case of retaliation under that section. Otis alleges that he was retaliated against for exercising his First Amendment right of association in violation of 42 U.S.C. § 1983. Otis claims that he was constructively discharged as a result of being friends with Robertson, a fellow officer who filed a grievance against Chief Bass accusing her of harassment. In order to prove a claim of retaliation in violation of the First Amendment, a plaintiff must prove: (1) that he suffered an adverse employment decision; (2) that his association with others involved a matter of public concern; (3) that his interest in associating with others outweighs the defendant's interest in promoting efficiency; and (4) that his association with others motivated the employer's action. See Bradshaw v. Pittsburgh Indep. School Dist., 207 F.3d 814, 815-16 (5th Cir. 2000).

In support of their Motion for Summary Judgment, the Defendants argue that they are entitled to a judgement as a matter of law because Otis cannot prove all of the elements of a Section 1983 claim. Specifically, the Defendants argue that Otis did not suffer an adverse employment action. As discussed above in the context of Title VII actions, for an action to be considered an adverse employment action, it must be an ultimate employment decision. See Mattern, 104 F.3d at 707. This Court determined in the context of Otis's Title VII claims that the Plaintiff did not suffer an adverse employment action. The same standard as applied above with respect to Otis's Title VII claims applies in the context of Otis's constitutional claims. As stated by the Fifth Circuit in a previous case, "[t]he reason for not expanding the list of adverse employment actions is to ensure that section 1983 does not enmesh federal courts in `relatively trivial matters.'" Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000), cert. denied, 121 S.Ct. 52 (2000). Therefore, for the reasons articulated above with respect to Otis's Title VII claims, this Court finds that Otis cannot prove all of the elements of a Section 1983 claim because he has not suffered an adverse employment decision. Accordingly, even if the Defendants were not entitled to immunity in this case, they would still be entitled to summary judgment with respect to Otis's Section 1983 claims because there is no genuine issue of material with respect to those claims.

For the foregoing reasons, this Court finds that Otis cannot prove a prima facie case of retaliation under Title VII. Otis has failed to show that he was engaged in a protected activity, he has failed to demonstrate that he suffered an adverse employment action, and he failed to prove a causal connection between the protected activity and the adverse employment action. Therefore, this Court finds that there are no genuine issues of material fact with respect to Otis's Title VII claim of retaliation, such that LSU is entitle to judgment as a matter of law.

With respect to Otis's Section 1983 claims, this Court finds that LSU is entitled to sovereign immunity with respect to Otis's constitutional claim. Furthermore, this Court finds that Defendant Bass is entitled to qualified immunity with respect to Otis's Section 1983 claim. Accordingly, there are no genuine issues of material fact with regard to those claims, such that LSU and Chief Bass are entitled to judgments as a matter of law. Finally, this Court finds that even if the Defendants were not entitled to immunity with respect to Otis's Section 1983 claims, they are still entitled to judgment as a matter of law with respect to those claims because Otis has failed to prove a case of retaliation in violation of Section 1983.

Accordingly,

IT IS ORDERED that the Defendants' Motion for Summary Judgment (Doc. 39) be, and the same is hereby, GRANTED.

IT IS FURTHER ORDERED that Otis's Title VII claim against LSU be, and the same is hereby, DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Otis's 42 U.S.C. § 1983 claims against LSU and Leslye Ann Bass be, and the same are hereby, DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Otis's Cross-Motion for Summary Judgment be, and the same is hereby, DENIED.