United States Court of Appeals Fifth Circuit F I L E D REVISED September 5, 2007 July 11, 2007
IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk
No. 06-30453
ERMA MCCOY,
Plaintiff-Appellant,
versus
CITY OF SHREVEPORT,
Defendant-Appellee.
-------------------- Appeal from the United States District Court for the Eastern District of Louisiana --------------------
Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Erma McCoy, a former lieutenant with the
Shreveport Police Department (SPD), appeals from the district
court’s summary-judgment dismissal of her employment discrimination
suit against the City of Shreveport (the City). We affirm.
I. FACTS & PROCEEDINGS
Erma McCoy, a black female, worked for the SPD as a permanent
police officer from December 1981 until her retirement in December
2003. McCoy attained the rank of lieutenant in February 2002. In
July 2003, McCoy filed a grievance with SPD’s Internal Affairs
Bureau (IAB) alleging that a subordinate officer, Sergeant Ed Jackson, who is white, harassed her by twice throwing wadded-up
paper in her face and by repeatedly entering her office only to
stare at her and laugh in mocking derision. As McCoy’s grievance
involved allegations of workplace harassment, SPD also forwarded it
to the personnel department of the City for its separate review.
Both the City and SPD concluded that Sergeant Jackson’s conduct did
not constitute harassment, and City personnel recommended that both
Sergeant Jackson and McCoy be counseled about workplace
“horseplay.”
The following month, Captain Rick Walker, McCoy’s supervisor,
informed her that her harassment complaint had not been
substantiated and cautioned her against future workplace horseplay.
When she received this news and caution, McCoy became extremely
upset and questioned the thoroughness with which the SPD and the
City had investigated her complaint. Captain Walker told McCoy
that she could speak to the Chief of Police if she was dissatisfied
with the way the investigation had been conducted. She declined,
however, then began crying uncontrollably, reportedly telling
Captain Walker that she “knew it would come back this direction,
this way and that’s the reason why we have violence in the
workplace and that if they’re not going to take care of it, then
I’ll take care of it.” McCoy denies making this statement but
admits that she was in an emotional state and acknowledges telling
Captain Walker that she would “not take this lying down.” McCoy
also remembers Captain Walker being present later when she told a
2 fellow black lieutenant, who had inquired why McCoy was so upset,
that “we are not officers, we are not sergeants . . . or
lieutenants,” but rather “we are black officers . . . black
sergeants, and black lieutenants, and . . . each time we move up,
we become less.” McCoy eventually asked to be relieved of duty so
that she could see her doctor about the emotional distress she was
experiencing.
Captain Walker consulted with two SPD lieutenants who had
witnessed McCoy’s reaction, and decided that, out of concern for
McCoy’s safety (and possibly that of others), he should retrieve
her gun before she left the police station. McCoy surrendered her
gun before leaving work. Captain Walker then informed SPD
Assistant Chief Charlie Owens of the events surrounding McCoy’s
departure. Owens indicated his belief that, because Captain Walker
had taken McCoy’s gun, he effectively had placed her on
administrative (or “departmental”) leave. Owens instructed Captain
Walker to have McCoy sign the paperwork necessary to process an
administrative leave. The next morning, Captain Walker went to
McCoy’s home, had her fill out the necessary forms, and retrieved
her badge.
At some time during the next month, IAB reclassified McCoy’s
leave as extended sick leave. Captain Walker was informed that his
(and Assistant Chief Owens’s) designation of McCoy’s leave as
administrative leave was a mistake. McCoy was paid her full salary
throughout her leave.
3 In December 2003, McCoy informed the SPD that she had decided
to retire at the end of the month. She stated that, despite her
admiration for the SPD leadership and her general desire to
continue serving as a police officer, her health considerations
would not allow her to “go on under the circumstances.”
Specifically, she mentioned concerns about “constantly having to
face Ed Jackson, constantly having to look behind my back,
constantly having to come in and explain why I did certain things
as a lieutenant doing my job.”1 At the time that McCoy submitted
her retirement letter, her doctor had not yet released her to
return to work, and she still had several months of paid sick leave
accumulated.
McCoy filed suit in Louisiana state court in August 2004,
alleging that the City had (1) discriminated against her on grounds
of race and sex and had retaliated against her, both acts allegedly
taken in violation of Title VII, the First Amendment, and Louisiana
law, and (2) intentionally caused her emotional distress, in
violation of Louisiana Civil Code article 2315. The City removed
the case to the district court on federal question jurisdiction.
The federal court eventually granted summary judgment in favor of
the City on (1) McCoy’s discrimination and retaliation claims,
because, inter alia, she had suffered no adverse employment action
1 Ironically, at the time McCoy informed SPD of her decision to retire, Sergeant Jackson had retired.
4 and the conduct of which she complained was not sufficiently severe
or pervasive to constitute a hostile work environment; and (2) her
Louisiana tort claim, because she could not show conduct by the SPD
that met the legal standard for intentional infliction of emotional
distress. McCoy timely filed her notice of appeal.
II. ANALYSIS
A. Standard of Review
We review a grant of summary judgment de novo.2 Summary
judgment is proper only when the movant can demonstrate that there
is no genuine issue of material fact and that she is entitled to
judgment as a matter of law.3
B. Merits
1. McCoy’s Title VII Claims
a. Applicable Title VII Law4
2 Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 416 (5th Cir. 2006). 3 Id. 4 Louisiana’s anti-discrimination statute, LA. REV. STAT. ANN.§ 23:301 et seq., is “substantively similar” to Title VII, and Louisiana courts routinely look to the federal jurisprudence for guidance. Trahan v. Rally's Hamburgers Inc., 696 So. 2d 637, 641 (La. App. 1st Cir. 1997). Consequently, the outcome of McCoy’s statutory discrimination and retaliation claims will be the same under the federal and state statutes. We therefore analyze the issues only under the applicable federal precedents.
5 Assuming a plaintiff has exhausted his administrative
remedies,5 he may prove a claim of intentional discrimination or
retaliation either by direct or circumstantial evidence. We
analyze cases built on the latter, like this one, under the
framework set forth in McDonnell Douglas Corp. v. Green.6 Under
that framework, the plaintiff must first establish a prima facie
case of discrimination, 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 his protected group or was treated less favorably than
other similarly situated employees outside the protected group.7
To establish a prima facie case of retaliation, the plaintiff must
establish that: (1) he participated in an activity protected by
Title VII; (2) his employer took an adverse employment action
5 The district court ruled that, because McCoy signed her EEOC Charge Questionnaires on June 14, 2004, any of her claims that arose before August 15, 2003 (300 days earlier) were time- barred. The court therefore dismissed McCoy’s claims based on Sergeant Jackson’s reported paper-throwing harassment, which allegedly occurred on June 12 and June 26, 2003. Accordingly, the district court considered those incidents only as part of the totality of the circumstances relevant to McCoy’s hostile work environment claim. McCoy does not challenge this ruling on appeal. 6 411 U.S. 792, 802 (1973). 7 See Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005).
6 against him; and (3) a causal connection exists between the
protected activity and the adverse employment action.8
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.9 The employer's burden is only one of production, not
persuasion, and involves no credibility assessment.10 If the
employer meets its burden of production, the plaintiff then bears
the ultimate burden of proving that the employer's proffered reason
is not true but instead is a pretext for the real discriminatory or
retaliatory purpose.11 To carry this burden, the plaintiff must
rebut each nondiscriminatory or nonretaliatory reason articulated
by the employer.12
b. Adverse Employment Action
The district court based its summary judgment dismissal of
McCoy’s race and sex discrimination and retaliation claims on her
inability to demonstrate that she suffered a legally actionable
8 Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003); Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). 9 See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000) (discrimination); Gee, 289 F.3d at 345 (retaliation). 10 Russell, 235 F.3d at 222. 11 See id. 12 Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
7 “adverse employment action.” Without proving such an action, McCoy
cannot make the necessary prima facie cases of discrimination or
retaliation.13 McCoy argues on appeal that the court erroneously
failed to recognize that the City took adverse employment actions
both by (1) creating a hostile work environment that caused her
“constructive discharge” and (2) taking her gun and badge and
placing her on administrative leave.
i. Constructive Discharge
“A constructive discharge occurs when the employer makes
working conditions so intolerable that a reasonable employee would
feel compelled to resign.”14 In determining whether an employer's
actions constitute a constructive discharge, we examine the
following relevant factors:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (6) offers of early retirement that would make the employee worse off whether the offer were accepted or not.15
13 See Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003)(Title VII discrimination); Fierros v. Tex. Dep’t of Health, 274 F.3d 187) (5th Cir. 2001) (Title VII retaliation). 14 Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771 (5th Cir. 2001). 15 Id. at 771-72; see also Haley v. Alliance Compressor LLC, 391 F.3d 644, 650 (5th Cir. 2004).
8 This inquiry is an objective, “reasonable employee,” test under
which we ask “whether a reasonable person in the plaintiff's shoes
would have felt compelled to resign.”16
Even considering the summary judgment evidence here in the
light most favorable to McCoy, we are satisfied that a reasonable
employee in her position would not have felt compelled to resign.
McCoy was not demoted, suffered no reduction in salary, and was
paid in full for the entirety of her leave. She was relieved of
her job responsibilities, but only at her own request, and SPD
never indicated that she would not be reinstated to her previous
position when cleared medically to return to work. She was not
reassigned to menial or degrading work, and she never received an
offer of early retirement. The only actions taken by the SPD in
connection with this matter were (1) counseling McCoy against
workplace horseplay and (2) retrieving her badge and gun and
placing her on administrative leave. These actions, when viewed in
the context of the circumstances surrounding them, were not
“calculated [by SPD] to encourage [McCoy’s] resignation”17 and do
not meet the established standard for a constructive discharge.18
16 Haley, 391 F.3d at 650. 17 See id. 18 See Hunt, 277 F.3d at 772 (affirming the district court's grant of summary judgment on constructive discharge when the employee felt demeaned by her reassignment to the night shift upon her return from medical leave); Brown v. Bunge Corp., 207 F.3d 776, 782-83 (5th Cir. 2000) (affirming a grant of summary judgment for the employer even when employee had been demoted and
9 McCoy does allege that she suffered badgering and harassment
by Sergeant Jackson and that SPD and the City permitted it to go
unchecked. Such unremediated harassment may create a hostile work
environment and cause a constructive discharge, but only if it is
“severe or pervasive” and “create[s] an environment that a
reasonable person would find hostile or abusive.”19 “Whether an
environment is hostile or abusive depends on the totality of the
circumstances, including factors such as the frequency of the
conduct, its severity, the degree to which the conduct is
physically threatening or humiliating, and the degree to which the
conduct unreasonably interferes with an employee's work
performance.”20
Sergeant Jackson’s conduct, even though undoubtedly offensive
to McCoy, consisted of little more than occasional boorish remarks
and childish horseplay. The district court correctly held that
such conduct was not sufficiently severe or pervasive to create an
objectively hostile or abusive work environment.21 Moreover, at the
received a reduction in job responsibilities upon his return to work); McKethan v. Tex. Farm Bureau, 996 F.2d 734, 741 (5th Cir. 1993) (affirming summary judgment for the employer when the employee claimed he had been publicly ridiculed and admonished but failed to allege any of the other constructive discharge factors). 19 Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005). 20 Id. 21 See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“[S]imple teasing, offhand comments, and isolated
10 time McCoy chose to retire, Sergeant Jackson had already left the
SPD and posed no continuing threat to McCoy’s mental well-being or
work-place level of comfort. McCoy also acknowledged in her
retirement letter that she respected and admired the Chief of
Police and that, but for her health concerns, she would look
favorably on the prospect of returning to work for the SPD. Based
on the summary judgment record before us, we are convinced that
McCoy retired voluntarily, not as the result of a constructive
discharge. As no reasonable employee in McCoy’s position would
have felt compelled to resign, she was not constructively
discharged.
ii. Administrative Leave
McCoy also contends that the SPD took an adverse employment
action against her when Captain Walker retrieved her gun and badge
and placed her on administrative leave. We have historically held
that, for all Title VII claims, “[a]dverse employment actions
include only ultimate employment decisions such as hiring, granting
leave, discharging, promoting, or compensating.”22 Under this
standard, the district court properly held that placing McCoy on
paid leave —— whether administrative or sick —— was not an adverse
incidents, (unless extremely serious) will not amount to discriminatory charges.”) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)); see also Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 328 (5th Cir. 2004). 22 Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002).
11 employment action.23 In the recent case of Burlington Northern &
Santa Fe Railway Co. v. White,24 however, the Supreme Court
abrogated our approach in the retaliation context in favor of the
standard used in the Seventh and D.C. Circuits, which defines an
adverse employment action as any action that “might well have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” We must therefore analyze the effect of
Burlington Northern on this case.
(1) McCoy’s Discrimination Claims
In Burlington Northern, the Court expressly limited its
holding to Title VII retaliation claims:
The underscored words in the substantive [anti- discrimination] provision —— “hire,” “discharge,” “compensation, terms, conditions, or privileges of employment,” “employment opportunities,” and “status as an employee” —— explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision. Given these linguistic differences, the question here is not whether identical or similar words should be read in pari materia to mean the same thing. Rather, the question is whether Congress intended its different words to make a legal difference. We normally presume that, where words differ as they differ here, “‘Congress acts intentionally and purposely in the disparate inclusion or exclusion.’”
There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well. The anti-discrimination provision seeks
23 Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000) (holding that police officer placed on paid administrative leave did not suffer an adverse employment action). 24 126 S. Ct. 2405 (2006).
12 a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct. . . . . Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.25
Even though our precedent recognizing only “ultimate employment
decisions” as actionable adverse employment actions remains
controlling for Title VII discrimination claims and therefore
continues to justify summary judgment dismissal of McCoy’s
discrimination claims,26 her retaliation claims requires a closer
look post-Burlington Northern.
(2) McCoy’s Retaliation Claims
McCoy contends that, by retrieving her gun and badge and
placing her on administrative leave, SPD took actions that might
well dissuade a reasonable officer from filing a charge of
discrimination. McCoy characterizes those actions as the
25 Id. at 2411-13 (emphasis added) (internal citations omitted). 26 Accord Dendinger v. Ohio, 207 F. App’x 521, 527 n.6 (6th Cir. 2006) (unpublished opinion) (noting that Burlington Northern’s broadening of the definition of “adverse employment action” affects only retaliation claims).
13 functional equivalent of a discharge, because they remove “the
essence of being a Police Officer.” The City, on the other hand,
contends that SPD’s actions, when viewed in context, do not meet
the standard set forth in Burlington Northern. Specifically, the
City points out that McCoy (1) voluntarily requested leave, (2)
made troubling statements that raised legitimate safety concerns,
and (3) was paid throughout her leave. As such, insists the City,
actions like SPD’s should not dissuade a reasonable police officer
in McCoy’s situation from making a discrimination complaint.
In Burlington Northern, the Court recognized that arguably
adverse employment actions must be viewed in context.27 In this
case, the record makes clear that McCoy did ask to leave work to
see her doctor and —— presumably acting on her doctor’s advice ——
never attempted to return to work. There is no evidence that SPD
would have placed her on administrative leave had she been able to
continue working, or that SPD would have refused to reinstate her
had she sought to return to work after her leave. The record also
makes clear, however, that McCoy did not volunteer to surrender her
gun and badge and did not designate her own leave as
administrative: SPD made those decisions and took those actions on
its own. As McCoy contends that those actions (and not her leave
generally) constitute the adverse employment action in this case,
27 Id. at 2415 (“[T]he significance of any given act of retaliation will often depend on the particular circumstances.”).
14 we do not regard her initial voluntary request for leave as
foreclosing her retaliation claim.
We are satisfied that McCoy’s troubling statements have no
bearing on whether SPD’s actions constitute an adverse employment
action. In the next step of the McDonnell Douglass burden-shifting
framework, such statements could affect our assessment of SPD’s
motive for its actions, but they are irrelevant to our
consideration whether McCoy’s being placed on administrative leave
meets the Burlington Northern standard for an adverse employment
action.
Similarly, the mere fact that McCoy was placed on paid
administrative leave does not necessarily mean that she did not
suffer an adverse employment action. Police officers are typically
placed on administrative leave, frequently with pay, when they are
under investigation or as discipline for wrongdoing. In such
cases, the officers are indefinitely relieved of all duties and
have little, if any, control over their reinstatement.
Consequently, placement on administrative leave may carry with it
both the stigma of the suspicion of wrongdoing and possibly
significant emotional distress. Instances of administrative leave
can also negatively affect an officer’s chances for future
advancement.
Accordingly, we recognize that it is at least a close question
whether SPD’s placing McCoy on paid administrative leave
constituted an adverse employment action under the Burlington
15 Northern standard. We need not answer this question today,
however, because even if McCoy could make the necessary prima facie
case of discriminatory retaliation under Title VII, she cannot
prove that the City’s proffered legitimate, non-retaliatory reasons
for collecting her gun and badge and placing her on administrative
leave are pretextual.28
c. Pretext
28 The City also challenges whether McCoy has established the other two elements of her prima facie case of retaliation. First, the City contends that McCoy’s complaint against Sergeant Jackson did not allege race or sex as a motive for his harassing conduct, and therefore does not constitute “protected activity” under Title VII. Next, the City conclusionally asserts that McCoy failed to establish a causal link between her protected activity and her adverse employment action. Although we need not address these issues to resolve her appeal, we note that McCoy asserts that she was placed on administrative leave not only in retaliation for her official complaint against Sergeant Jackson, but also because she orally complained about the SPD’s general mistreatment of black officers after learning that her official complaint had been denied. McCoy’s complaints likely amount to protected activity. See Grimes v. Tex. Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996) (“An employee has engaged in activity protected by Title VII if she has either (1) ‘opposed any practice made an unlawful employment practice’ by Title VII or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’ under Title VII.”)(citations omitted)). Regarding any causal connection between McCoy’s complaints and her placement on administrative leave, she has at least demonstrated that the employment decisionmakers (Captain Walker and Assistant Chief Owens) knew of her complaints and took the alleged adverse employment action against her in close temporal proximity to her making those complaints. See Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (holding that close timing between protected activity and adverse employment action may be sufficient to establish a “causal connection”).
16 The adverse employment action allegedly taken against McCoy
involved three separate acts. First, Captain Walker retrieved
McCoy’s gun before allowing her to leave work. Next, Assistant
Chief Owens instructed Captain Walker to designate McCoy’s leave as
administrative, and Walker did so. Finally, Captain Walker took
McCoy’s badge. The City contends that Captain Walker took McCoy’s
gun because her comments about “workplace violence” and “taking
care of the problem herself” raised legitimate concerns about her
safety and that of others. The City further maintains that,
because McCoy presented no evidence of any racially insensitive
conduct by Captain Walker or Assistant Chief Owens, she has not
raised a material fact issue whether the decision to classify her
leave as administrative had a retaliatory motive vis a vis her
allegations of racism in the SPD. The City does not proffer a
motive for confiscating McCoy’s badge other than that such action
was necessary to satisfy SPD rules regarding administrative leave.
McCoy contends that she has offered sufficient evidence that
the reasons given by the City for SPD’s actions are mere pretext
for racially retaliatory animus against her railings about the
treatments of blacks in the SPD. She primarily points to her
testimony that Captain Walker was standing nearby when she
complained to another officer about the SPD’s mistreatment of its
black officers. She also notes that Captain Walker informed
Assistant Chief Owens of McCoy’s comments when the two men spoke
later that day. And, insists McCoy, even if Captain Walker
17 legitimately confiscated her gun for safety reasons, such reasons
do not justify his taking her badge.
Essentially, McCoy contends that, because Captain Walker and
Assistant Chief Owens (1) were aware of her complaints about SPD’s
treatment of black officers, and (2) took her gun and badge and
placed her on administrative leave shortly after she made those
complaints, a material fact issue exists as to whether the City’s
proffered legitimate reasons for SPD’s actions are pretextual. We
disagree.
“Close timing between an employee's protected activity and an
adverse action against him may provide the ‘causal connection’
required to make out a prima facie case of retaliation.”29
“However, once the employer offers a legitimate, nondiscriminatory
reason that explains both the adverse action and the timing, the
plaintiff must offer some evidence from which the jury may infer
that retaliation was the real motive.”30 McCoy has offered no such
evidence. She had not alleged that either Captain Walker or
Assistant Chief Owens ever engaged in any racially discriminatory
conduct towards McCoy or any other black employee; neither does she
present any evidence indicating that, under similar circumstances,
white officers were treated differently than was she.
29 Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). 30 Id.
18 McCoy’s attempt to prove pretext simply by showing that the
SPD decisionmakers knew of her complaints and took an adverse
employment action shortly thereafter fails. She offers no evidence
from which a reasonable juror could infer that the legitimate
reasons proffered by the City for confiscating her badge and gun
and placing her on administrative leave were pretextual.
Consequently, summary judgment dismissal of her Title VII
retaliation claims was proper.
2. First Amendment Retaliation
It is well settled that a plaintiff asserting a First
Amendment retaliation claim in employment must show that (1) an
adverse employment action was taken, (2) speech involving a matter
of public concern was uttered, (3) the employee’s interest in
speaking outweighs the employer’s interest in efficiency, and (4)
the protected speech precipitated the adverse employment action.31
The City insists that McCoy cannot show that (1) she suffered an
adverse employment action, or (2) her speech involved a matter of
public concern. McCoy insists that both her official complaint
against Sergeant Jackson and her oral complaint about the plight of
black officers in the SPD involve matters of public concern, and
that the SPD’s actions constitute an adverse employment action
under Burlington Northern. As with McCoy’s Title VII retaliation
claim, however, we need not resolve these questions: McCoy has not
31 Teague v. City of Flower Mound, Tex., 179 F.3d 377, 380 (5th Cir. 1999) (First Amendment retaliation).
19 presented sufficient evidence to allow a reasonable juror to
conclude that her speech precipitated any adverse employment action
against her.
The City’s proffered legitimate reasons for the employment
action taken by the SPD are discussed in detail above, as is
McCoy’s failure to provide any evidence that those reasons were
pretext for discriminatory retaliation for her statements about
SPD’s mistreatment of black officers. This evidentiary shortcoming
does not produce a different result simply because this claim is
grounded in the First Amendment’s, and not Title VII’s, protection
of her speech. Other than her own self-serving conclusions and the
temporal proximity of the SPD’s actions to her speech, McCoy has
failed to produce any evidence that would support a conclusion of
retaliatory animus. Given the legitimate reasons for SPD’s actions
proffered by the City, McCoy’s evidentiary failure is fatal to her
First Amendment retaliation claim.
3. Intentional Infliction of Emotional Distress
A Louisiana claim for intentional infliction of emotional
distress is actionable only if the plaintiff can show “(1) that the
conduct of the defendant was extreme and outrageous; (2) that the
emotional distress suffered by the plaintiff was severe; and (3)
that the defendant desired to inflict severe emotional distress or
knew that severe emotional distress would be certain or
20 substantially certain to result from his conduct.”32 The conduct
complained of must be “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious and utterly intolerable in a civilized
community.”33 None of the conduct McCoy complains of —— whether by
Sergeant Jackson or others in the SPD —— rises to that level. The
district court properly granted summary judgment for the City on
McCoy’s Louisiana-law tort claim for intentional infliction of
emotional distress.34
III. CONCLUSION
For the foregoing reasons, the district court’s summary
judgment dismissing each of McCoy’s claims is, in all respects
AFFIRMED.
32 White v. Monsanto, 585 So. 2d 1205, 1209 (La. 1991). 33 Id. 34 To the extent that McCoy argues that her tort claim was not limited to intentional infliction of emotional distress, Louisiana Civil Code article 2315 does not protect against employment discrimination, which is the basis of McCoy’s complaint. See Baynard v. Guardian Life Ins. Co., 399 So. 2d 1200, 1202 (La. App. 1st Cir. 1981).