Fifth Circuit Reverses Summary Judgment in Gender Discrimination and Retaliation Case Involving LSU
The Fifth Circuit considered an appeal from a summary judgment in a case involving claims of gender discrimination and retaliation. The case is Haire v. Board of Supervisors of Louisiana State University (5th Cir. May 21, 2013).
The plaintiff was an LSU police officer. She applied for the vacant position as chief of police. LSU installed an "interim" chief of police (Durham), but did not contact the plaintiff about her application. A male co-worker (Rabalais) also sought the position. Rabalais told another co-worker that, if a woman was appointed as chief, he would quit.
In 2009, Durham instructed the plaintiff to enter information into the police reporting system regarding the arrest of a former LSU dean (Collins). This led to the public disclosure of the arrest, which generated negative publicity. LSU conducted three disciplinary procedures:
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, she contends this “decimating reduction of her duties” essentially stripped her of “her rank, her command, and her job.”
A short time later, Rabalais became the interim police chief, even though he did not have a college degree as was required for the job. The plaintiff filed a charge of discrimination based on the denial of her request for a promotion. Rabalais was later made the permanent police chief.
The district court granted summary judgment for LSU, and the plaintiff appealed. The Fifth Circuit found that the plaintiff had established a prima facie case. The case thus came down to pretext. The plaintiff argued that "For her, what followed from the Collins incident was all a 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."
The Fifth Circuit agreed that the plaintiff had established a fact question with respect to pretext:
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.
LSU sought to avoid that result by claiming that the actual decisionmaker was the school's chancellor, and not Rabalais or Durham. The court concluded that the issue came down to whether the "cat's paw" rule applied. In other words, did Rabalais' actions influence the chancellor's decision? The court found that Rabalais was involved in the decision and that his actions influenced the decision:
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.
The court therefore applied the "cat's paw" rule and reversed the summary judgment with respect to the discrimination claim.
With respect to the retaliation claim, the court found that Rabalais' subsequent conduct was sufficient to meet the standard for retaliation:
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,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.”
The court therefore reversed the summary judgment in its entirety.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes