Houston v. Miss. Dep't of Human Servs.

131 F.Supp.3d 598

Nora HOUSTON, Plaintiff

v.MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Defendant.

Civil Action No. 3:13cv773–DPJ–FKB.

United States District Court, S.D. Mississippi, Northern Division.

Signed Sept. 18, 2015.

John M. Mooney, Jr., Law Offices of John M. Mooney, Jr., PLLC, Madison, MS, for Plaintiff.

Peter W. Cleveland, Office of the Attorney General, Jackson, MS, for Defendant.

ORDER

DANIEL P. JORDAN III, District Judge.

This employment-discrimination case is before the Court on Defendant Mississippi Department of Human Services's ("MDHS") Motion for Summary Judgment [38]. For the following reasons, MDHS's motion is granted as to the state-law claims, Americans with Disability Act claims, Family Medical Leave Act interference claim, and claims related to alleged constructive discharge. The motion is otherwise denied.

I. Facts and Procedural History

Plaintiff Nora Houston, a white female, began working as financial coordinator for MDHS in January 2007. Houston Dep. [38–1] at 2. In 2012, Takesha Darby, an African–American female, became Houston's direct supervisor. Def.'s Resps. [43–6] at 1 2. The two quickly developed issues, and on March 12, 2012, Darby gave Houston a verbal counseling concerning various policy breaches at the workplace. Verbal Counseling [38–1] at 55.¹

According to Houston, Darby attempted to place Houston on a Performance Improvement Plan ("PIP") in April 2012. Darby denies this occurred, Darby Dep. [43–4] at 50, but viewed in a light most favorable to Houston's testimony, Darby prepared the PIP but never completed the process, stating instead, "It's over. Let's start anew." Id. Had she given Houston the PIP, it would have violated MDHS policy because Houston had not yet completed a review period under Darby's supervision. Darby Dep. [43–4] at 42.

In August 2012, Houston filed an internal grievance after she lost the right to claim compressed days that allowed her to spend time with her ailing mother. Jackson Dep. [43–1] at 133. This issue was resolved favorably for Houston, and she did not lose ability to take compressed days. See Pl.'s Mem. [42] at 32.

On September 30, 2012, Houston filed a Charge of Discrimination with the EEOC, citing the March 12, 2012 verbal-counseling session and the aborted 2012 PIP as instances of racial discrimination. See EEOC Charge [38–1] at 60. Less than two weeks later, on October 11, 2012, Houston took leave under the FMLA to care for her mother. Def.'s Resps. [43–6] at 3. During this leave, Darby sent Houston an email instructing her not to contact coworkers seeking donated FMLA leave because it violated agency policy. Email [38–1] at 77. Houston denies that she solicited such donations though she may have mentioned it to at least one coworker. Houston Dep. [38–1] at 47 48.

While Houston's leave continued, her periodic Performance Appraisal Report ("PAR") for the April to October 2012 period became due. See PAR [38–1] at 57. Darby completed the report November 5, and it was also approved by Mary Fuller, a white supervisor. In the PAR, Darby gave Houston a 1.28 rating for various deficiencies in her job performance. PAR [38–1] at 57. Any score below a two (2) requires a PIP. Darby Dep. [43–4] at 2.

The PAR and PIP were shared with Houston shortly after her return to work. See PAR [38–1] at 57, 61 62. As a result, Houston filed an internal grievance with MDHS, complaining that she received the PAR and PIP just days after experiencing the anguish of losing her mother and returning to work. Grievance [38–1] at 65. Houston further claimed that Darby's "harassment" and "bullying" caused her to fear for her job. Id. at 63 68.

In the last months of her employment, Darby made Houston attend weekly meetings with her and provide memoranda reviewing the topics discussed at the meeting. Darby Dep. [43–4] at 49. Houston also alleges that she was the only employee required to sign in and out. Pl.'s Mem. [42] at 32; see also EEOC Charge [38–1] at 73. It is not clear from the record whether these measures were part of the PIP, but they do not appear to be directly referenced in it. See PIP [381] at 61 62. Finally, Houston claims verbal abuse and bullying, which can be generally described as comments questioning her emotional stability, competence, and intelligence (including calling her "stupid"). See generally Houston Dep. [38–1] at 39. Houston ultimately filed a Notice of Voluntary Separation on June 28, 2013, and subsequently filed a Second Charge with the EEOC on July 26, 2013. Id. at 69 75. The EEOC issued Houston a right to sue on September 16, 2013. Id. at 76.

On December 10, 2013, Houston filed her Complaint [1] in this Court, alleging that MDHS violated her rights under Title VII of the Civil Rights Act of 1964; Title I of the Americans with Disabilities Act of 1990 ("ADA"); and the Family and Medical Leave Act of 1993 ("FMLA"). She also asserted a due-process claim and state-law claims for intentional infliction of emotional distress and violation of provisions governing state service of employees. MDHS has now filed the instant Motion for Summary Judgment [38], and the briefing is concluded. The Court has personal and subject-matter jurisdiction and is prepared to rule.

II. Standard of Review

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

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] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The nonmoving party must then "go beyond the pleadings" and "designate ‘specific facts showing that there is a genuine issue for trial.’ " Id. at 324, 106 S.Ct. 2548. In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when ... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (per curiam). When such contradictory facts exist, the court may "not make credibility determinations or weigh the evidence."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002) ; Little, 37 F.3d at 1075 ; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993) (per curiam).

Finally, the Court feels compelled to observe that Plaintiff has failed to fully comply with Rule 56(c)(1), which states that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials." (emphasis added). Rule 56(c)(3) adds that "[t]he court need consider only the cited materials, but it may consider other materials in the record." And under Rule 56(e), "[i]f a party fails to properly support an assertion of fact ..., the court may: ... (2) consider the fact undisputed for purposes of the motion."

Here, Plaintiff at times fails to provide any record citation. And when she does offer cites, she sometimes refers to her complaint rather than the record. As for her record cites, Houston often directs the Court to the wrong exhibit or page number. Other times, she generically cites excessive page ranges from the depositions without identifying the particular parts that support her statements (one cite, for example, references a nearly 100–page range). Finally, many of the cites reference documents or testimony that are not in the record at all.

The Court understands the pressures attorneys face, and it generally tries to avoid ad hominem comments. That said, considerable time has been spent trying to sort through all of this in order to consider the record as a whole. As often stated, there is no "duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Jackson v. Cal–W. Packaging Corp., 602 F.3d 374, 379–80 (5th Cir.2010) (citation and quotation marks omitted). So to the extent something has been missed, the fault rests with the Plaintiff.

III. Analysis

Houston's more specific claims seek relief for: (1) hostile work environment in violation of Title VII; (2) constructive discharge in violation of Title VII; (3) retaliation in violation of Title VII; (4) violation of the ADA; (5) retaliation under the FMLA; (6) interference under the FMLA; (7) intentional infliction of emotional distress; (8) violation of provisions governing state service of employees; and (9) failure to provide due process as to Houston's grievances. The Court will address each.

A. Eleventh Amendment Immunity as to ADA, Due–Process, and State–Law Claims

MDHS asserts that it is entitled to immunity under the Eleventh Amendment as to Houston's ADA, due-process, and state-law claims. "The Eleventh Amendment bars citizens of a state from suing their own state or another state in federal court, unless the state has waived its sovereign immunity or Congress has expressly abrogated it." Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir.2013) (citation omitted). "[A] state's...