Hardison v. Skinner ( 2022 )

Case: 20-30643 Document: 00516389097 Page: 1 Date Filed: 07/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 11, 2022
No. 20-30643 Lyle W. Cayce
Clerk
Gwendolyn Antee Hardison,
Plaintiff—Appellant,
versus
Dale Skinner, individually and in his capacity as Superintendent;
School Board of Natchitoches Parish,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana,
USDC No. 1:18-CV-119
ON PETITION FOR REHEARING EN BANC
Before Dennis, Southwick, and Wilson, Circuit Judges.
Per Curiam:*
Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for panel rehearing is DENIED. See 5th Cir. R.
35 I.O.P. Because no member of the panel or judge in regular active service
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30643
requested that the court be polled on rehearing en banc, the petition for
rehearing en banc is DENIED. See Fed. R. App. P. 35; 5th Cir. R.
35. Our prior panel opinion, Hardison v. Skinner, No. 20-30643, 2022 WL
1136038 (5th Cir. Apr. 18, 2022) (unpublished), is WITHDRAWN and the
following opinion is SUBSTITUTED therefor:
Plaintiff Gwendolyn Hardison appeals the district court’s dismissal of
her employment discrimination, defamation, and Louisiana state law claims
against the Natchitoches Parish School Board and Dale Skinner, the school
board’s superintendent. Hardison brought this action after she voluntarily
retired six months after defendants placed her on paid administrative leave.
The district court granted summary judgment for the defendants on
Hardison’s claims. Reviewing the court’s opinion and considering the
parties’ briefing, oral argument, and pertinent portions of the record, we find
no reversible error in the district court’s judgment and affirm.
I.
Hardison was employed by the school board from November 13, 2003,
until January 27, 2016. She supervised a program called the Migrant
Education Program, which disbursed financial aid to eligible families. During
an audit in 2015, the Louisiana Department of Education found that 60% of
the families receiving financial aid through the program were ineligible,
forcing NPSB to refund the Louisiana Department of Education a total of
$79,842.41. Skinner placed Hardison on administrative leave, with full pay
and benefits, pending completion of an investigation by the school board.
After six months on paid administrative leave, Hardison retired and
submitted a formal letter of resignation through her attorney.
On January 31, 2018, Hardison, an African American woman, filed
suit for racial and gender discrimination under Title VII of the Civil Rights
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Act of 1964 and Louisiana’s Employment Discrimination Law. See 42 U.S.C.
§ 2000e; La. Stat. Ann. § 23:301. She also sought recovery under 42
U.S.C. § 1983 and Louisiana’s Teacher Tenure Law on the ground that
defendants constructively discharged her without due process of law. La.
Stat. Ann. § 17:442. In addition, Hardison asserted claims under
Louisiana state law for intentional infliction of emotional distress and
defamation. After the parties engaged in discovery, the school board moved
for summary judgment while Hardison moved to strike the school board’s
summary judgment evidence.
The district court denied Hardison’s motion to strike and then
granted the motion for summary judgment. The court found that Hardison
had failed to make a prima facie case for Title VII discrimination; that,
alternatively, the school board had a legitimate, non-discriminatory reason
for its actions; that Hardison had failed to demonstrate that she had suffered
disciplinary action in violation of Louisiana’s Teacher Tenure law; and that
she had failed to demonstrate that the school board acted with malice in any
of its allegedly defamatory statements. Hardison now appeals.
II.
We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. SCA Promotions, Inc. v.
Yahoo!, Inc., 868 F.3d 378, 381 (5th Cir. 2017). Summary judgment is
appropriate when, viewing the evidence in the light most favorable to the
non-movant, the court determines “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). A fact is “material” if proof of its existence or
nonexistence would affect the outcome of the lawsuit under applicable law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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Hardison’s Title VII discrimination claim relies on circumstantial
evidence, and “is therefore subject to the burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817(1973).” Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017).
Under this framework, the plaintiff must first establish her prima facie case,
which requires a showing that the plaintiff (1) is a member of a
protected group; (2) was qualified for the position at issue; (3)
was discharged or suffered some adverse employment action
by the employer; and (4) was replaced by someone outside
[her] protected group or was treated less favorably than other
similarly situated employees outside the protected group.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citing Wheeler
v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005)). “If the plaintiff makes
a prima facie showing, the burden then shifts to the employer to articulate a
legitimate, nondiscriminatory or nonretaliatory reason for its employment
action.” Id. at 557 (citations omitted). This “burden is only one of
production, not persuasion, and involves no credibility assessment.” Id.
(citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)).
If the employer meets its burden, “the plaintiff then bears the ultimate
burden of proving that the employer’s proffered reason is not true but is
instead a pretext for the real discriminatory or retaliatory purpose. To carry
this burden, the plaintiff must rebut each nondiscriminatory or nonretaliatory
reason articulated by the employer.” Id. (citations omitted).
Hardison contends that when Skinner placed her on administrative
leave pending the school board’s investigation into the Migrant Education
Program disbursements, she suffered a discriminatory adverse employment
action cognizable under Title VII. In essence, she takes issue with the way
she was treated by the defendants during the six months she remained on
leave. Hardison asserts that neither Skinner nor anyone else with the district
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apprised her of the status of the investigation or asked for her explanation
regarding the misspent funds. In fact, she asserts that the defendants did not
communicate with her at all, leaving her simply in limbo and effectively
forcing her to resign—that her administrative leave was really a constructive
discharge.
In this circuit, “‘[a]dverse employment actions include only ultimate
employment decisions such as hiring, granting leave, discharging, promoting,
or compensating.’ Under this standard . . . placing [the plaintiff] on paid
leave—whether administrative or sick—was not an adverse employment
action.” Id. at 559 (quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d
642, 657 (5th Cir. 2002), overruled on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006)). While placement on paid
administrative leave by itself thus does not constitute an adverse employment
action under our precedent, the alleged circumstances surrounding the
extended leave at issue here, which Hardison contends amounted to a
constructive discharge, arguably might. Cf. id. at 557-59 (quoting Haley v.
Alliance Compressor LLC, 391 F.3d 644, 650 (5th Cir. 2004) (discussing
constructive discharge factors and characterizing inquiry as “an objective,
‘reasonable employee,’ test under which we ask ‘whether a reasonable
person in the plaintiff’s shoes would have felt compelled to resign’”)).
But that question is not dispositive here, so we need not resolve it.
Hardison cannot make out a prima facie case of gender or race
discrimination—even assuming she proved an adverse employment action—
because her case falters on the fourth element necessary for such a claim in
any event. To substantiate a discrimination claim, Hardison was required to
produce evidence establishing that she was treated less favorably than “other
similarly situated employees who were not members of the protected class,
under nearly identical circumstances.” Lee v. Kansas City S. Ry. Co., 574
F.3d 253, 259 (5th Cir. 2009) (citing Abarca v. Metro. Transit Auth., 404 F.3d
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938, 941 (5th Cir. 2005)). “Nearly identical circumstances” exist “when the
employees being compared held the same job responsibilities, shared the
same supervisor or had their employment status determined by the same
person, and have essentially comparable violation histories.” Id. at 260
(citations omitted). “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.”
Id. (emphasis added) (citing Perez v. Tex. Dep’t of Crim. Just., 395 F.3d 206,
213 (5th Cir. 2004).
Hardison fails to make the required showing. Her brief on appeal
makes passing reference to Steven Solomon, whom she asserts was a
“similarly situated white, male co-worker[.]” But the only mentions of
Solomon in the record are three statements in Hardison’s complaint and
summary judgment affidavit: She avers that Solomon was able to hire the
individuals he wanted to work in his department while Hardison was not; that
Skinner interrupted one of Hardison’s routine meetings but never
interrupted Solomon’s meetings; and that in his capacity as Director of
Business Affairs for the school board, Solomon was responsible for financial
losses suffered by the district but was never placed on administrative leave.
At summary judgment, beyond Hardison’s affidavit, Solomon is mentioned
in passing in a footnote to Hardison’s brief.
Hardison’s barebones statements, with nothing more to support
them, are insufficient to establish that she was “similarly situated” to
Solomon, or that her “conduct that drew the adverse employment decision”
was “‘nearly identical’ to that of [Solomon’s].” Lee, 574 F.3d at 259–60; but
see Guzman v. Allstate Assurance Co., 18 F.4th 157, 160–61 (5th Cir. 2021)
(noting that “‘self-serving’ affidavits and depositions may create fact issues
even if not supported by the rest of the record”). While Hardison’s affidavit
may tend to substantiate that “the employees being compared held the same
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job responsibilities” and “shared the same supervisor,” Lee, 574 F.3d at 260,
she fails to show, through her affidavit or otherwise, that her “conduct that
drew the adverse employment decision” was “‘nearly identical’ to that of
the proffered comparator,” id. In short, she offers no details as to Solomon’s
alleged misconduct, so that nothing in the record indicates that his alleged
violations were “nearly identical” in scope to the government investigation
into significant alleged misspending that precipitated Hardison’s paid
administrative leave. Thus lacking a similarly situated comparator, her
discrimination claim fails.
And even if Hardison could establish a prima facie case of race or
gender discrimination, her claim nonetheless fails because she has not
produced evidence to rebut the school board’s legitimate non-discriminatory
reason for placing her on administrative leave: The district was investigating
a program that Hardison had supervised that had gone seriously awry, costing
the district nearly $80,000 in funds that had to be refunded to the State. In
response, Hardison presents no evidence of pretext suggesting that she was
actually placed on leave for discriminatory reasons. Simply put, on the record
before us, Hardison fails to show that her race or gender had anything to do
with why she was placed on paid leave. Without such evidence, her Title VII
claim fails.
As for her remaining claims, there is likewise no evidence the school
board violated the Louisiana Teacher Tenure law (which requires providing
an employee with notice and an opportunity to respond if the employee is
subject to discipline) because administrative leave does not fall under the
Louisiana statute’s definition of discipline. La. Stat. Ann. § 17:441(2)
(“‘Discipline’ and ‘disciplinary action’ shall include only suspension
without pay, reduction in pay, or involuntary demotion or dismissal.”).
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And Hardison’s defamation claims fail because there is no evidence
that defendants lacked a reasonable belief in the truth of any statements
related to Hardison’s role in the problems with the financial aid disbursement
program. Therefore, any statements made about Hardison’s performance
are conditionally privileged. See Costello v. Hardy, 3003-1146 (La. 1/21/04);
864 So. 2d 129, 139-143 (stating that the elements of a defamation claim
include proving fault which is held to be “malice, actual or implied[,]” and
defining malice as “lack of reasonable belief in the truth of the statement
giving rise to the defamation.”).
* * *
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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James L. Dennis, Circuit Judge, specially concurring:
Though I concur in the majority’s judgment affirming the district
court, I respectfully disagree with its conclusion that Hardison failed to show
disparate treatment for the purpose of establishing a prima facie case of
discrimination. Hardison submitted evidence that a similarly situated white
male administrator had caused monetary losses to the school district in the
past more costly than the losses she was accused of, yet no discipline was ever
pursued against him. Additionally, she presented evidence of
Superintendent Skinner’s history of differential treatment of this white male
colleague. The defendants do not dispute this evidence, nor have they ever
challenged this element of Hardison’s prima facie case, either in the district
court or in this court. Rather, “the only dispute,” according to the
defendants, is whether Hardison has presented evidence of an adverse
employment action. But the majority declines to resolve this question,
instead turning to an aspect of Hardison’s claim that is not in contention and
applying a novel evidentiary standard to dispose of her case. This innovation
is not warranted by our precedent, or by this case.
The prima facie case requirement plays an important, but limited role
in the McDonnell Douglas analysis. Texas Dep’t of Cmty. Affs. v. Burdine, 450
U.S. 248, 253 (1981). Because employers rarely declare their discriminatory
intent outright, plaintiffs are allowed to rely on circumstantial evidence to
prove discrimination claims. U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 716 (1983). But circumstantial evidence is by its very nature
indirect, and therefore may support multiple different propositions—some
innocent, some discriminatory. See Sylvester v. SOS Children’s Villages
Illinois, Inc., 453 F.3d 900, 903 (7th Cir. 2006) (discussing the categories of
direct and indirect evidence) (Posner, J.). The prima facie step is an initial
pass through the plaintiff’s circumstantial evidence that “eliminates the
most common nondiscriminatory reasons for the plaintiff’s [adverse
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treatment].” Burdine, 450 U.S. at 254. So long as the plaintiff adduces facts
that “if otherwise unexplained, are more likely than not based on the
consideration of impermissible factors,” she has shown a prima facie case of
discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978).
Thus, “to establish a prima facie case, a plaintiff need only make a very
minimal showing.” Thornbrough v. Columbus & Greenville R. Co., 760 F.2d
633, 639 (5th Cir. 1985), abrogated on other grounds by St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502 (1993). If her allegations “exude that faint aroma of
impropriety that is sufficient to justify requiring the [defendant] to give
reasons for its decision.” Id. at 644.
The majority improperly raises the bar for Hardison, requiring her to
prove at the outset that there was a white male “nearly identical” in job
responsibilities, supervisor, and disciplinary history, and whose “nearly
identical” conduct did not draw unfavorable treatment from the defendant.
Supra at 5–6. The majority derives this “nearly identical” requirement from
Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). To
the extent the majority understands Lee to require that all comparator
evidence be comparable along the dimensions of job responsibilities,
supervisor, disciplinary history, and conduct, it misreads Lee and applies a
standard at odds with the Supreme Court’s Title VII jurisprudence. Lee only
said that comparator evidence with these points of comparison “will be
deemed” to contain identical circumstances needed for a meaningful
comparison. Id. at 260. It did not require that all comparator evidence in
Title VII cases be comparable in these specific ways. Indeed, Lee expressly
noted that comparators with different supervisors, disciplinary histories, and
violative conduct could be sufficient to state a prima facie case. See id. at 260–
61. This is in line with the Supreme Court’s repeated characterization of the
prima facie showing as a “flexible evidentiary standard” resistant to “precise
formulation” outside of the particular facts of a given case, Swierkiewicz v.
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Sorema N. A., 534 U.S. 506, 512 (2002), as well as the Court’s recent
advisement that the standard does not “require the plaintiff to show that
those whom the employer favored and those whom the employer disfavored
were similar in all but the protected ways.” Young v. United Parcel Serv., Inc.,
575 U.S. 206, 228 (2015). All that is required for a comparator to be similarly
situated is that he share “enough common features” with the plaintiff to
allow a meaningful comparison. Humphries v. CBOCS West, Inc., 474 F.3d
387, 405 (7th Cir.2007), aff'd, 553 U.S. 442 (2008).
In my view, Hardison’s evidence easily meets this flexible standard.
She submitted unrebutted testimony that Steve Solomon, a white male
employed as the Director of Business Affairs for the defendant school board,
“has in fact been responsible for losses to the Defendant . . . but . . . was never
placed on administrative leave or constructively discharged for his actions.”
Solomon’s losses “were more egregious than any conduct alleged against
Ms. Hardison.” Additionally, Hardison provided evidence that
Superintendent Skinner had long treated her and Solomon differently.
Skinner “often” denied Hardison’s requests for additional staff for the
Migrant Education Program but granted Solomon’s staffing requests.
Skinner also interrupted and abruptly ended a professional development
meeting that Hardison was leading, implying that such meetings were
inappropriate, but never did so to Solomon’s meetings.
Yet this undisputed evidence is not enough for the majority.
Characterizing Hardison’s testimony as “barebones statements,” the
majority holds that her evidence is insufficient to state a prima facie case.
Supra at 6. Respectfully, I do not see how this specific and detailed testimony
can fairly be called “barebones,” especially when evaluated in light of the
prima facie case’s minimal standard. Hardison identified a specific
comparator, his position within the school district, conduct of his that was
similar to hers, and supplied additional evidence of a history of differential
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treatment of the comparator by the defendant. These facts, “if otherwise
unexplained,” easily give rise to an inference of improper motives on the
defendants’ part. Furnco, 438 U.S. at 577. Even applying the majority’s
requirement that a comparator have the same supervisor, same job
responsibilities, same work violation history, and same alleged misconduct,
Hardison’s evidence suffices. The summary judgment record shows that
Solomon was also under the ultimate supervision of Superintendent Skinner
(same supervisor), that Solomon also held a director-level position in the
school district (same job responsibilities), that Hardison never had a history
of disciplinary infractions, therefore making any disciplinary history of
Solomon’s comparable in her favor (same work violation history), and that
Solomon had caused worse financial losses to the school district but was
never disciplined (same alleged misconduct).
The majority finds this last element in particular lacking. It complains
that Hardison offered “no details as to Solomon’s alleged misconduct” and
therefore it cannot tell if he is actually similarly situated enough to
permissibly infer discriminatory intent. Supra at 6–7. With respect, what
additional details does the majority need at this stage? Hardison submitted
evidence that Solomon caused larger financial losses to the school district
through “budget discrepancies” as the Director of Business Affairs.
Interpreting this evidence in the light most favorable to Hardison, as we are
bound to at this procedural posture, one can easily infer that Solomon’s
improper budgeting is similar enough to Hardison’s alleged misspending,
such that the defendants’ decision to discipline Hardison but not Solomon
“exude[s] that faint aroma of impropriety[.]” Thornbrough, 760 F.2d at 644.
Requiring a plaintiff to establish anything more than a mere inference of
discrimination at the prima facie stage sets a bar that is “essentially
insurmountable” and contrary to our caselaw. Lee, 574 F.3d at 260.
***
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The real issue with Hardison’s case is the one the parties actually
dispute: the “ultimate employment decision” requirement that our circuit,
and only our circuit, has engrafted onto the plain text of Title VII. It is only
because Hardison’s evidence does not meet this special Fifth Circuit
requirement that I concur in affirming the district court’s judgment.
Title VII makes it unlawful “to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1).
As one might expect from the statute’s expansive language, “Title VII’s
prohibition of discriminatory employment practices was intended to be
broadly inclusive, proscribing ‘not only overt discrimination but also
practices that are fair in form, but discriminatory in operation.’” Washington
Cty. v. Gunther, 452 U.S. 161, 170 (1981) (quoting Griggs v. Duke Power Co.,
401 U.S. 424, 431 (1971)). Nonetheless, our court has limited Title VII to
apply only to “ultimate employment decisions, such as hiring, granting leave,
discharging, promoting, or compensating an employee.” McCoy v. City of
Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (citation omitted). As is
apparent from the statute itself, this judge-crafted limitation has no basis in
the plain text or legislative history of Title VII. Our court first discovered it
twenty-six years ago in Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995),
adopting dictum from an en banc Fourth Circuit case that involved a different
provision of Title VII, Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981).
Neither Dollis nor Page based the notion of “ultimate employment
decision” in an analysis of the Title VII’s text or history, and I question
whether the doctrine should continue in our circuit. The Fourth Circuit itself
has declined to adopt Page’s dictum, see Von Gunten v. Maryland, 243 F.3d
858, 866 n.3 (4th Cir. 2001), and the Supreme Court abrogated our insertion
of the limitation into Title VII retaliation claims years ago, Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). No other court of appeals
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applies so narrow a concept of an adverse employment action as we do
through our “ultimate employment decision” rule. It is hard to square
Dollis’s restriction of Title VII to “ultimate employment decisions” with the
statute’s broad prohibition of discrimination in “compensation, terms,
conditions, or privileges of employment[.]” 42 U.S.C. § 2000e-2(a)(1)
(emphasis added). Clearly, “conditions [of employment]” encompass more
than simply an employer’s ultimate decisions about employment. Though I
recognize that Hardison’s claim is foreclosed in this circuit by Dollis—more
specifically by McCoy’s extension of Dollis to exclude being placed on paid
administrative leave indefinitely from Title VII’s ambit—I urge our court to
reconsider the wisdom of our “ultimate employment decision” rule, and to
firmly root our adverse employment action jurisprudence in the text and
history of Title VII.
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