Lacour v. Capital One Financial

MOTION for Summary Judgment

W.D. La.December 22, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION JACKIE LACOUR, Plaintiff, versus CAPITAL ONE FINANCIAL, Defendant. ) ) ) ) ) ) ) ) ) ) Civil Action File No. 15-CV-02615 Judge: S. Maurice Hicks Magistrate Judge: Mark L. Hornsby DEFENDANT CAPITAL ONE’S MOTION FOR SUMMARY JUDGMENT Pursuant to Fed. R. Civ. P. 56, Defendant Capital One, N.A. hereby moves this Court to enter summary judgment in favor of Defendants on the claims of Plaintiff Jackie Lacour. As more fully discussed in the attached Memorandum in Support, Exhibits and Statement of Uncontested Material Facts, Plaintiff did not exhaust her administrative remedies as to a majority of her claims, including her claims of retaliation, discriminatory assignment of duties and failure to train, constructive discharge, and harassment based on race and/or sex such that this Court does not have jurisdiction over these claims. Further, Plaintiff cannot carry her burden to prove that her non-promotion to the branch manager position at Capital One’s Airline Branch was based on her age, race, or sex. Finally, Plaintiff cannot establish any severe or pervasive harassment based on age, a claim that is nevertheless barred by the Faragher-Ellerth affirmative defense. Thus, Capital One is entitled to summary judgment on all of Plaintiff’s claims, which should be dismissed with prejudice and at her sole cost. Case 5:15-cv-02615-SMH-MLH Document 13 Filed 12/22/16 Page 1 of 2 PageID #: 41 2 /s/ Jennifer L. Englander Monique R. Gougisha, LA #28057 Jennifer L. Englander, LA #29572 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: 504.648.3840 Facsimile: 504.648.3859 Electronic Mail: monique.gougisha@ogletreedeakins.com jenny.englander@ogletreedeakins.com Attorneys for Defendant Capital One, N.A. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion for Summary Judgment has been served on all counsel of record via the Court’s Electronic Filing System. This 22nd day of December 2016. /s/Jennifer L. Englander 27948785.1 Case 5:15-cv-02615-SMH-MLH Document 13 Filed 12/22/16 Page 2 of 2 PageID #: 42 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION JACKIE LACOUR, Plaintiff, versus CAPITAL ONE FINANCIAL, Defendant. ) ) ) ) ) ) ) ) ) ) Civil Action File No. 15-CV-02615 Judge: S. Maurice Hicks Magistrate Judge: Mark L. Hornsby MEMORANDUM IN SUPPORT OF CAPITAL ONE’S MOTION FOR SUMMARY JUDGMENT Monique R. Gougisha, LA #28057 Jennifer L. Englander, LA #29572 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: 504.648.3840 Facsimile: 504.648.3859 Electronic Mail: monique.gougisha@ogletreedeakins.com jenny.englander@ogletreedeakins.com Attorneys for Defendant Capital One, N.A. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 1 of 31 PageID #: 43 ii TABLE OF CONTENTS I. Statement of Uncontested Material Facts ..............................................................................1 II. Law and Argument ................................................................................................................1 A. Summary Judgment Standard ....................................................................................1 B. Plaintiff Failed to Exhaust Her Administrative Remedies For Her Claims of Retaliation, Assignment of Duties, Denial of Training, Constructive Discharge, and Harassment Based on Race or Sex as Required by Title VII and the ADEA............................................................................................................2 1. Plaintiff did not exhaust her retaliation claims. .............................................4 2. To the extent Plaintiff has stated a claim for race or sex harassment she has failed to exhaust those claims..................................................................5 3. Plaintiff failed to exhaust her claims of alleged discriminatory assignment of duties and/or denial of training. .................................................................5 4. Plaintiff failed to exhaust her constructive discharge claim. .........................7 C. Plaintiff’s Failure to Promote Claim Fails as a Matter of Law..................................8 1. Plaintiff Cannot Establish a Prima Facie Case of Discriminatory Failure to Promote......................................................................................................8 2. Capital One Has Articulated a Legitimate, Non-Discriminatory Reason for Not Promoting Plaintiff to Branch Manager. ...........................................11 3. Plaintiff Has No Evidence of Pretext for Discrimination. .............................12 a. Plaintiff Cannot Rebut the Same-Actor Presumption........................14 b. Plaintiff Has No Evidence of Disparate Treatment. ..........................14 c. Plaintiff Cannot Establish Capital One’s Legitimate Non- Discriminatory Reason was False or Unworthy of Credence............15 D. Plaintiff’s Harassment Claims under the ADEA Fail as a Matter of Law.................15 1. Plaintiff Cannot Establish a Prima Facie Case of Harassment. ....................17 a. Only Age-Based Comments/Conduct Are Actionable Under the ADEA. ...............................................................................................18 Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 2 of 31 PageID #: 44 iii 2. Plaintiff’s Harassment Claims Are Barred by the Faragher-Ellerth Affirmative Defense.......................................................................................20 III. Conclusion .............................................................................................................................23 Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 3 of 31 PageID #: 45 iv TABLE OF AUTHORITIES Page(s) Cases Abram v. Fulton Cty. Gov't, 598 Fed. Appx. 672 (11th Cir. 2015), cert. denied sub nom. Abram v. Fulton Cty., Ga., 136 S.Ct. 149, 193 L.Ed.2d 43 (2015), reh'g denied, 136 S.Ct. 572, 193 L.Ed.2d 453 (2015) .............................................................................................................7 Admire v. Strain, 566 F. Supp. 2d 492 (E.D. La. 2008).........................................................................................9 Badon v. R J R Nabisco, Inc., 224 F.3d 382 (5th Cir. 2000) .....................................................................................................2 Barrera v. Tri-Cty. Juvenile Prob., 2008 WL 416239 (S.D. Tex. Feb. 8, 2008) ...............................................................................5 Bauer v. Albemarle, 169 F.3d 962 (5th Cir. 1999) .....................................................................................................8 Bellard v. Gautreaux, 675 F.3d 454 (5th Cir. 2012) .....................................................................................................2 Blasingame v. Eli Lilly & Co., 2013 WL 5707324 (S.D. Tex. Oct. 18, 2013)............................................................................9 Boudreaux v. Bantec, Inc., 366 F. Supp. 2d 425 (E.D. La. 2005).........................................................................................2 Brown v. Bunge Corp., 207 F.3d 776 (5th Cir. 2000) .....................................................................................................7 Carpenter v. Mississippi Valley State Univ., 807 F. Supp. 2d 570 (N.D. Miss. 2011).............................................................................12, 15 Casiano v. AT&T Corp., 213 F.3d 278 (5th Cir. 2000) ...................................................................................................17 Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th Cir. 2010) .....................................................................................................2 Chhim v. Univ. of Texas at Austin, 836 F.3d 467 (5th Cir. 2016) .....................................................................................................5 Clemmer v. Enron Corp., 882 F. Supp. 606 (S.D. Tex. 1995) ............................................................................................5 Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 4 of 31 PageID #: 46 v Dube v. Texas Health and Human Services Com’n, 2012 WL 2397566 (S.D. Tex. June 25, 2012) .........................................................................13 Eberle v. Gonzales, 240 Fed. Appx. 622 (5th Cir. 2007)...........................................................................................5 Ford v. Amethyst Constr., Inc., 2016 WL 1312627 (W.D. La. Apr. 4, 2016)........................................................................8, 14 Frazier v. Sabine River Auth. Louisiana, 509 Fed. Appx. 370 (5th Cir. 2013)...........................................................................................3 Gobert v. Saitech, Inc., 439 Fed. Appx. 304 (5th Cir. 2011).........................................................................................18 Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d 470 (5th Cir. 2015) ...................................................................................................12 Harper v. City of Jackson Mun. Sch. Dist., 149 Fed. Appx. 295 (5th Cir. 2005).........................................................................................22 Harris v. Forklift Sys., 510 U.S. 17 (1993)...................................................................................................................16 Hervey v. Mississippi Dept. of Educ., 404 Fed. Appx. 865 (5th Cir. 2010).........................................................................................13 Hoffman-Dombrowski v. Arlington Int'l Racecourse, Inc., 254 F.3d 644 (7th Cir. 2001) .....................................................................................................9 Hornsby v. Conoco, Inc., 777 F.2d 243 (5th Cir. 1985) ...................................................................................................13 Huda v. Lockheed Martin, 07-9090, 2008 U.S. Dist. LEXIS 4305 (E.D. La. Jan. 18, 2008)...............................................3 Jackson v. Honeywell Int'l, Inc., 601 Fed. Appx. 280 (5th Cir. 2015)...................................................................................16, 19 Kovacic v. Villareal, 628 F. 3d 209 (5th Cir. 2010) ....................................................................................................2 Lambus v. City of Jackson Fire Dep't, 54 Fed. Appx. 414 (5th Cir. 2002).............................................................................................8 LeMaire v. Louisiana Dep’t of Transp. & Dev., 480 F.3d 383 (5th Cir. 2007) ...................................................................................................13 Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 5 of 31 PageID #: 47 vi Lewis v. Integrated Med. Sys. Int'l, Inc., 2015 WL 7449562 (E.D. La. June 2, 2015).............................................................................18 Manzella v. United Parcel Serv., Inc., 2002 WL 31040170 (E.D. La. Sept. 10, 2002) ..........................................................................3 Mayes v. Office Depot, Inc., 292 F. Supp. 2d 878 (W.D. La. 2003)........................................................................................3 Nasti v. Ciba Specialty Chemicals, 492 F.3d 589 (5th Cir. 2007) ...................................................................................................13 National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)............................................................6 Neal v. Wolf Camera & Video, 1999 WL 172319 (N.D. Tex. Mar. 22, 1999) ..........................................................................10 Otwell v. Aaron Rents, Inc., 2007 WL 433078 (W.D. La. Feb. 5, 2007)..............................................................................21 Perry v. Lockheed Missiles & Space Co., Inc., 76 Fed. Appx. 821 (9th Cir. 2003).............................................................................................7 Pullen v. Caddo Par. Sch. Bd., 830 F.3d 205 (5th Cir. 2016) ...................................................................................................21 Reed v. Neopost USA, Inc., 701 F.3d 434 (5th Cir. 2012) .............................................................................................19, 20 Sanchez v. Gen. Growth Mgmt. Co., 136 F.3d 1328 (5th Cir. 1998) ...................................................................................................7 Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970) .....................................................................................................4 Shakir v. Prairie View A & M Univ., 178 Fed. Appx. 361 (5th Cir. 2006).........................................................................................13 Tolbert v. U.S. 916 F.2d 245 (5th Cir. 1990) .....................................................................................................3 Walton-Lentz v. Innophos, Inc., 476 Fed. Appx. 566 (5th Cir. 2012).......................................................................................3, 4 Wesley v. Yellow Transp., Inc., 2008 WL 294526 (N.D. Tex. Feb. 4, 2008)...............................................................................6 Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 6 of 31 PageID #: 48 vii White v. Gov't Employees Ins. Co., 457 Fed. Appx. 374 (5th Cir. 2012).........................................................................................16 Williams v. Admin. Review Bd., 376 F.3d 471 (5th Cir. 2004) ...................................................................................................17 Statutes 29 U.S.C. § 621, et seq........................................................................................................... passim 42 U.S.C. §§ 2000e, et seq..................................................................................................... passim Louisiana Employment Discrimination Law.............................................................................3, 21 Other Authorities Fed. R. Civ. P. 56.........................................................................................................................1, 2 Local Rule 56.1................................................................................................................................1 Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 7 of 31 PageID #: 49 1 NOW COMES Defendant Capital One, N.A. (incorrectly named in Plaintiff’s Complaint as “Capital One Financial”) (“Capital One” or “Defendant”) and submits the following Memorandum in Support of its Motion for Summary Judgment. As set forth herein, Plaintiff Jackie LaCour’s discrimination, harassment, and retaliation claims under the Age Discrimination in Employment Act (“ADEA”)(29 U.S.C. § 621, et seq.) and Title VII of the Civil Rights Act of 1964 (“Title VII”)(42 U.S.C. §§ 2000e, et seq) all fail as a matter of law. Plaintiff did not exhaust her administrative remedies as to a majority of her claims, including her claims of retaliation, discriminatory assignment of duties and failure to train, constructive discharge, and harassment based on race and/or sex. Further, Plaintiff cannot carry her burden to prove that her non-promotion to the branch manager position at Capital One’s Airline Branch was based on her age, race, or sex. Finally, Plaintiff cannot establish any severe or pervasive harassment based on age, a claim that is nevertheless barred by the Faragher- Ellerth affirmative defense. Thus, Capital One is entitled to summary judgment on all of Plaintiff’s claims, which should be dismissed with prejudice and at her sole cost. I. STATEMENT OF UNCONTESTED MATERIAL FACTS1 Capital One refers the Court to Defendant’s Statement of Uncontested Material Facts (“SMF”), filed concurrently with this Motion for Summary Judgment. II. LAW AND ARGUMENT A. Summary Judgment Standard The standard is well-known: summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, 1 Capital One submits this Statement in accordance with the Federal Rules of Civil Procedure and Local Rule 56.1. These facts are presented in a light most favorable to Plaintiff in order to assist the Court in its decision-making process under Fed. R. Civ. P. 56. For the purposes of trial, however, Capital One reserves the right to present its defenses in a light most favorable to Defendant. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 8 of 31 PageID #: 50 2 show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”2 Capital One may satisfy its burden on summary judgment by pointing to an absence of evidence regarding Plaintiff’s claims.3 Once Capital One identifies a lack of evidence to support Plaintiff’s claims, summary judgment should be granted unless Plaintiff can produce summary- judgment evidence sufficient to sustain a finding in her favor.4 A plaintiff’s own self-serving, conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the non-movant’s burden of proving discrimination, harassment, or retaliation.5 Instead, Plaintiff must present evidence – not just conjecture and speculation – that she was subjected to harassment, retaliation, and/or discrimination because of her race, gender, age, or protected activity in order to demonstrate a genuine issue of material fact for trial.6 B. Plaintiff Failed to Exhaust Her Administrative Remedies For Her Claims of Retaliation, Assignment of Duties, Denial of Training, Constructive Discharge, and Harassment Based on Race or Sex as Required by Title VII and the ADEA. Plaintiff’s Complaint asserts the following claims: (1) discriminatory failure to promote and retaliation under Title VII; (2) discriminatory failure to promote and harassment based on age under the ADEA; (3) discriminatory assignment of duties and denial of training under the ADEA, and (4) constructive discharge.7 Nonetheless, Plaintiff’s Charge of Discrimination, which was filed with the Equal Employment Opportunity Commission (“EEOC”) on or about May 16, 2014, only contains the following: (1) her failure to promote claim based on her age, 2 Fed. R. Civ. P. 56. 3 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000); Boudreaux v. Bantec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005). 4 Kovacic v. Villareal, 628 F. 3d 209, 212 (5th Cir. 2010). 5 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). 6 See, e.g., Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 397 (5th Cir. 2010) (citing Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir. 2006); Fed. R. Civ. P. 56(c)). 7 Rec. Doc. 1 at ¶¶21, 23, 25 and 27. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 9 of 31 PageID #: 51 3 race, and/or sex, and (2) her age-based harassment claim.8 Moreover, Plaintiff’s EEOC Charge did not include any factual allegations regarding retaliation, discriminatory assignment of duties or denial of training, constructive discharge, or harassment based on race or sex.9 Since Plaintiff failed to exhaust her administrative remedies on these claims, they should be dismissed with prejudice. It is well-established that a complainant must first exhaust her administrative remedies by filing a complete Charge of Discrimination with the EEOC before she may bring a Title VII or ADEA action in federal court.10 A party’s failure to exhaust her administrative remedies bars these claims by depriving the court of subject matter jurisdiction over such claims.11 While the court's scope of inquiry is not limited to the boxes checked on the EEOC Charge, it is limited to that “which can reasonably be expected to grow out of the charge.”12 The courts have consistently held that the crucial element of a charge of discrimination is the factual statement contained therein -- everything else entered on the form is, in essence, a mere amplification of the factual allegations.13 “[T]he only procedural requirement which should confront a Title VII [and ADEA] complainant is the requirement that [s]he state, within the ninety-day period, facts 8 See Exhibit A, Plaintiff’s Deposition, taken on October 24, 2016, at pp. 233-234, and Plaintiff’s EEOC Charge of Discrimination attached as Exhibit 10 thereto. Although Plaintiff’s EEOC Charge alleges unlawful sex, age and race discrimination under the Louisiana Employment Discrimination Law (“LEDL”), her Complaint does not assert any Louisiana state law claims. To the extent Plaintiff claims to be asserting a LEDL claim, she is strictly limited to alleged discrimination detailed in the EEOC Charge based on the pre-suit notice requirements under Louisiana law. Mayes v. Office Depot, Inc., 292 F. Supp. 2d 878, 889 (W.D. La. 2003) (Hicks, J.) (citing La. R.S. 23:303(C); Manzella v. United Parcel Serv., Inc., 2002 WL 31040170, at *4 (E.D. La. Sept. 10, 2002) (citing Pugh v. J.C. Penney, 1996 WL 263219, at *5 (E.D. La. May 15, 1996) and Snear v. Turnbull Cone Baking Co., 1994 WL 34031, at *3–4 (E.D. La. Jan. 31, 1994); Parquet v. Universal Health Servs., Inc., 2003 WL 145429 (E.D. La. Jan. 17, 2003)). 9 Id., Plaintiff’s EEOC Charge. 10 Tolbert v. U.S. 916 F.2d 245, 249 (5th Cir. 1990) (Title VII); Walton-Lentz v. Innophos, Inc., 476 Fed. Appx. 566, 569 (5th Cir. 2012) (ADEA). 11 Huda v. Lockheed Martin, 07-9090, 2008 U.S. Dist. LEXIS 4305 (E.D. La. Jan. 18, 2008) (the court dismissed the plaintiff’s retaliation claim because he never asserted a retaliation claim in his EEOC Charge and failed to select “retaliation” on the Charge of Discrimination, thereby depriving the court of subject matter jurisdiction). 12 Id. 13 Frazier v. Sabine River Auth. Louisiana, 509 Fed. Appx. 370, 374 (5th Cir. 2013) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970)). Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 10 of 31 PageID #: 52 4 sufficient to trigger a Commission investigation.”14 Thus, the administrative exhaustion requirement is considered met for any claims within “‘the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’”15 This rule serves “to trigger the investigatory and conciliatory procedures of the EEOC” without keeping unsophisticated complainants out of court on technicalities.16 Plaintiff should be held accountable for the glaring omissions in her EEOC Charge. She testified that she reviewed the Charge before signing it, and she confirmed that its contents were true and correct.17 Accordingly, since Plaintiff failed to exhaust her administrative remedies regarding these claims as required under the ADEA and Title VII, these claims should be dismissed with prejudice. 1. Plaintiff did not exhaust her retaliation claims. Plaintiff’s Complaint alleges that she experienced “both discrimination and retaliation” under Title VII.18 However, Plaintiff only checked the box for “age,” “sex” and “race” on her EEOC Charge; she did not check the box for “retaliation”.19 Further, the particulars of her Charge do not include any facts that would reasonably lead to an investigation of a retaliation claim. Instead, Plaintiff alleged in her EEOC Charge that in October 2013 she was denied a promotion to the branch manager position at Capital One’s Airline Branch because of her age, race, and/or sex, and that her supervisor allegedly made two age-based comments, one on June 18, 2013, and another on August 22, 2013.20 Plaintiff further alleged in her Charge that she 14 Sanchez, 431 F. 2d at 462. 15 Walton-Lentz, 476 Fed. Appx. at 569 (quoting Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006) (internal quotation marks omitted). 16 Id. (quoting Pacheco, 448 F.3d at pp. 788–89). 17 Plaintiff’s Deposition at pp. 233-234. 18 Rec. Doc. 1 at ¶¶14, 23, 27. 19 Plaintiff’s EEOC Charge, Exhibit 10 to Plaintiff’s Deposition. 20 Plaintiff’s EEOC Charge, Exhibit 10 to Plaintiff’s Deposition. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 11 of 31 PageID #: 53 5 resigned from Capital One on February 24, 2014.21 Plaintiff filed her EEOC Charge on May 16, 2014, more than two months after she resigned from her employment with Capital One. However, the Charge does not contain any factual allegations that she engaged in protected activity or experienced any adverse employment actions because of said protected activity. Thus, she failed to exhaust her retaliation claim(s) under Title VII and the ADEA.22 2. To the extent Plaintiff has stated a claim for race or sex harassment she has failed to exhaust those claims. Plaintiff’s EEOC Charge also does not allege any race- or sex-based harassment under Title VII. Instead, the Charge only identified alleged statements based on her age and did not include any allegations of statements or other conduct that was based on her sex or race. Plaintiff’s factual allegations of age-based comments are not sufficient to exhaust any claim she may have regarding harassment based on race or sex.23 Thus, to the extent Plaintiff is asserting any Title VII claims for race or sex harassment, such claims should be dismissed with prejudice. 3. Plaintiff failed to exhaust her claims of alleged discriminatory assignment of duties and/or denial of training. Plaintiff’s Complaint alleges that her job duties were discriminatorily reduced and/or reassigned in violation of Title VII and the ADEA.24 Yet, Plaintiff also failed to allege facts in her EEOC Charge regarding this claim. Facts regarding Plaintiff’s alleged failure to promote are insufficient to exhaust her remedies or provide notice as to her claims based on alleged re- 21 Plaintiff’s EEOC Charge, Exhibit 10 to Plaintiff’s Deposition. 22 Eberle v. Gonzales, 240 Fed. Appx. 622, 628 (5th Cir. 2007) (plaintiff was required to exhaust administrative remedies as to claim of retaliation that occurred prior to the filing of his EEOC complaint); Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 472 (5th Cir. 2016) (plaintiff’s failure to mention any protected activity in his charge that pre-dated the employer’s decision not to hire him resulted in a failure to exhaust administrative remedies as to his retaliation claim based on said protected activity). 23 Clemmer v. Enron Corp., 882 F. Supp. 606, 611 (S.D. Tex. 1995) (The facts considered in an investigation for age discrimination and retaliation as alleged in the EEOC Charge would be entirely different from those considered in a claim for sex or race discrimination, such that plaintiff failed to exhaust her administrative remedies as to her sex and/or race discrimination claims); Barrera v. Tri-Cty. Juvenile Prob., 2008 WL 416239, at *2 (S.D. Tex. Feb. 8, 2008) (EEOC Charge allegations of age discrimination and retaliation were insufficient to exhaust administrative remedies as to race discrimination). 24 Rec. Doc 1 at ¶¶18, 20. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 12 of 31 PageID #: 54 6 assignment/reduction of job duties, as these claims involve an entirely separate and distinct set of facts.25 Thus, Plaintiff failed to exhaust her administrative remedies as to alleged discriminatory reassignment/reduction of job duties under Title VII and the ADEA. Finally, Plaintiff’s Complaint alleges that Gary Rainwater, a “white male in his thirties”, was selected to participate in Capital One’s INvest Program instead of her for discriminatory reasons in violation of Title VII and the ADEA.26 However, to the extent Plaintiff asserts a claim of discriminatory denial of training related to her non-participation in Capital One’s INvest Program, she failed to exhaust or provide notice as to that claim as well. A claim of discriminatory denial of training (assuming for purposes of this Motion only that it constitutes an adverse employment action) constitutes a discrete employment action that must be timely exhausted at the EEOC stage.27 In this case, Plaintiff’s EEOC Charge contains no allegations regarding any denial of training or denial of participation in the INvest Program.28 Indeed, the EEOC Charge does not reference the INvest Program at all.29 Thus, Plaintiff failed to exhaust and/or provide notice of this clam. Even if the EEOC Charge had included allegations regarding Plaintiff’s alleged denial of participation in the INvest Program, such claim would be untimely. Plaintiff’s Charge was filed on May 16, 2014, more than 300 days after she learned of the alleged denial of training/participation in the INvest Program in June 2013.30 Thus, Plaintiff’s 25 Wesley v. Yellow Transp., Inc., 2008 WL 294526, at *6 (N.D. Tex. Feb. 4, 2008), on reconsideration, 2008 WL 5220562 (N.D. Tex. Dec. 12, 2008) (citing Page v. Howard Indus., Inc., 2006 WL 3511454, at *3 (S.D. Miss. Dec. 5, 2006) (holding where EEOC Charge contained no failure-to-promote allegations, but only allegations related to discriminatory discharge, even giving EEOC charge liberal construction, court could not say that EEOC investigation of failure to promote could reasonably be expected to grow out of charge of unlawful termination, which was entirely different allegation based on entirely different set of facts). 26 See Rec. Doc. 1 at ¶¶8, 9, 10 and 11. 27 National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (“discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges.”). 28 Plaintiff’s EEOC Charge, Exhibit 10 to Plaintiff’s Deposition. 29 Plaintiff’s EEOC Charge, Exhibit 10 to Plaintiff’s Deposition. 30 Plaintiff’s Deposition at pp. 126-128; See National Railroad Passenger Corporation, 536 U.S. at 113. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 13 of 31 PageID #: 55 7 alleged discriminatory failure to train/participate in the INvest Program under Title VII and the ADEA should be dismissed for failure to exhaust. 4. Plaintiff failed to exhaust her constructive discharge claim. Although Plaintiff states in her Charge that she resigned her employment on February 24, 2014, and that her last day of work was March 4, 2014, she does not include any factual allegations which would trigger an EEOC investigation of the constructive discharge claim alleged in her Complaint.31 Plaintiff does not allege in her Charge that she resigned because of any perceived harassment or discrimination or that she felt forced to resign because working conditions so intolerable that a reasonable person would feel compelled to resign.32 The Fifth Circuit has held that an EEOC Charge referencing the plaintiff’s resignation, without more, did not give rise to a constructive discharge claim and dismissed the plaintiff’s constructive discharge claim for failure to exhaust administrative remedies.33 Here, the allegations in Plaintiff’s EEOC Charge establish that she resigned at the end of February 2014, more than two months after the latest alleged harassing conduct.34 Plaintiff’s EEOC Charge does not articulate any reason for her resignation and merely states that she waited for a branch manager position to open up, and then resigned.35 Such benign allegations are wholly insufficient to exhaust a claim of constructive discharge under either the ADEA or Title VII. Accordingly, Plaintiff’s constructive discharge claims should be dismissed. 31 Rec. Doc. 1 at ¶21. 32 Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000). 33 Sanchez v. Gen. Growth Mgmt. Co., 136 F.3d 1328 (5th Cir. 1998); see also Abram v. Fulton Cty. Gov't, 598 Fed. Appx. 672, 678 (11th Cir. 2015), cert. denied sub nom. Abram v. Fulton Cty., Ga., 136 S.Ct. 149, 193 L.Ed.2d 43 (2015), reh'g denied, 136 S.Ct. 572, 193 L.Ed.2d 453 (2015) (plaintiff did not exhaust administrative remedies as to her constructive discharge claim because while her charge mentioned her resignation, the charge alleged only that she “had to resign due to health reasons”; not that she had been forced to resign); Perry v. Lockheed Missiles & Space Co., Inc., 76 Fed. Appx. 821, 823 (9th Cir. 2003) (plaintiff’s administrative complaint did not allege that intolerable working conditions had forced her to resign; thus, her constructive termination claim was barred for failure to exhaust administrative remedies). 34 Plaintiff’s Deposition at p. 223 and Exhibit 10 thereto (Plaintiff’s EEOC Charge). Plaintiff testified that she could not recall any alleged age-based harassment or comments in 2014. 35 Plaintiff’s EEOC Charge, Exhibit 10 to Plaintiff’s Deposition. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 14 of 31 PageID #: 56 8 C. Plaintiff’s Failure to Promote Claim Fails as a Matter of Law. In her Complaint, Plaintiff alleges she was unlawfully denied a promotion to branch manager of the Airline Branch in October 2013, based on her age, race and sex.36 However, her failure to promote claim should be dismissed because she has no evidence that a similarly situated individual outside of her protected class was treated more favorably than she and, thus, she cannot establish a prima facie case of discriminatory failure to promote under Title VII or the ADEA.37 Furthermore, Plaintiff cannot establish that Capital One’s legitimate, non- discriminatory reasons for not promoting her to the branch manager position at its Airline Branch were pretext for age, race, or sex discrimination. Accordingly, Capital One is entitled to summary judgment on Plaintiff’s failure to promote claims under Title VII and the ADEA. 1. Plaintiff Cannot Establish a Prima Facie Case of Discriminatory Failure to Promote. A prima facie failure to promote claim requires Plaintiff to prove that (1) she is a member of a protected class; (2) she was qualified for the promotion she sought; (3) she was denied the promotion; and (4) similarly situated employees outside the protected class were treated more favorably.38 Here, Plaintiff cannot establish a prima facie case of discriminatory failure to promote because she cannot establish that a similarly-situated individual outside of her protected classes was treated more favorably than she.39 36 Rec. Doc. 1 at ¶¶10, 11, 12 and 13. 37 Claims for age, race, and sex discrimination under the ADEA and Title VII are analyzed under the same standards as set forth in McDonnel Douglas v. Green, and will be addressed jointly herein. Lambus v. City of Jackson Fire Dep't, 54 Fed. Appx. 414 (5th Cir. 2002) (addressing discrimination claims under the ADEA and Title VII jointly) (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000) (holding that the McDonnell Douglas analysis is applicable to the ADEA); Bauer v. Albemarle, 169 F.3d 962, 966 (5th Cir. 1999) (“The same evidentiary procedure for allocating burdens of production and proof applies to discrimination claims under both [Title VII and the ADEA]”). 38 Ford v. Amethyst Constr., Inc., 2016 WL 1312627, at *7 (W.D. La. Apr. 4, 2016). 39 For the purposes of this Motion only, Capital One assumes for the sake of argument that Plaintiff has established the remaining elements for a prima facie case of discriminatory failure to promote. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 15 of 31 PageID #: 57 9 Plaintiff’s coworker Gary Rainwater, a multi-branch banker, was promoted into the branch manager position at Capital One’s Airline Branch in 2013.40 Plaintiff alleges that she was unlawfully denied the promotion to this branch manager position because of her age, race and sex, and Mr. Rainwater (a younger white male) was promoted instead of her in violation of Title VII and the ADEA.41 However, because Mr. Rainwater was not similarly situated to Plaintiff, he is not a proper comparator and, thus, her discriminatory failure to promote claim fails. To establish that others similarly situated were treated more favorably, plaintiff and her alleged comparator (Mr. Rainwater) must be similarly situated with respect to their job titles, job duties, responsibilities, qualifications, and experience.”42 In this case, it is not sufficient that Mr. Rainwater received the position that Plaintiff desired. Although both Mr. Rainwater and Plaintiff worked in the same district, Mr. Rainwater was not similarly situated to Plaintiff because they did not hold the same or equivalent positions at the time that he was promoted. Furthermore, Plaintiff and Mr. Rainwater did not have the same supervisors, and they did not have the same qualifications and job experience.43 Specifically, Plaintiff was the Assistant branch manager at Capital One’s Benton Road Branch in Shreveport, whereas Mr. Rainwater was a Multi Branch Banker who worked at the Benton Road Branch as well as other branches in the Shreveport area.44 As Assistant branch manager, Plaintiff was primarily responsible for operations at the Benton Road branch, including management of 40 See Exhibit B, Declaration of Brad Daniel, at ¶7. 41 Rec. Doc. 1 at ¶10. 42 Admire v. Strain, 566 F. Supp. 2d 492, 504 (E.D. La. 2008) (lack of similarly-situated comparators supported summary judgment on plaintiff’s failure to promote claim); Blasingame v. Eli Lilly & Co., 2013 WL 5707324, at *12 (S.D. Tex. Oct. 18, 2013) (applying similarly-situated analysis to plaintiff’s claims of unequal promotional opportunities) (citing Berguist v. Washington Mutual Bank, 500 F.3d 344, 353 (5th Cir. 2007), cert. denied, 552 U.S. 1166, 128 S.Ct. 1124, 169 L.Ed.2d 950 (2008)). 43 Hoffman-Dombrowski v. Arlington Int'l Racecourse, Inc., 254 F.3d 644, 651 (7th Cir. 2001) (in failure to promote case, plaintiff was not similarly situated to alleged comparator because they did not hold the same position at the time of comparator’s promotion to position the plaintiff sought). 44 Plaintiff’s Deposition at p. 30; Declaration of Brad Daniel at ¶5. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 16 of 31 PageID #: 58 10 tellers, as well as ensuring the branch met its performance and sales goals through teller referrals to the bankers.45 She reported directly to Tomika Tolliver, branch manager at the Benton Road Branch.46 Conversely, as a Multi-Branch Banker, Mr. Rainwater was responsible for sales and customer service duties relative to banking products, such as checking, savings, and loan accounts.47 Although, Mr. Rainwater reported to Ms. Tolliver, he also reported to numerous other branch managers because his duties extended to multiple branches, in addition to the Benton Road branch.48 Thus, Plaintiff and Mr. Rainwater had different titles, job duties, and supervisors and were not similarly situated. Additionally, Mr. Rainwater’s qualifications and work experience were distinguishable from Plaintiff’s because, unlike Plaintiff, he participated in and successfully completed the INvest Program, a leadership program implemented by Capitol One to prepare associates to become branch managers.49 Mr. Rainwater was a top multi-branch banker in his district and he was the only participant in the INvest program from his district in 2013.50 Individuals, such as Mr. Rainwater, who successfully completed the INvest Program were then assigned to available branch manager positions.51 In the fall of 2013, Mr. Rainwater completed the INvest Program and, shortly thereafter, he was placed into the branch manager position at Capital One’s Airline Branch.52 In light of the foregoing, Mr. Rainwater was not similarly situated to Plaintiff based on their different qualifications and work experience.53 45 Plaintiff’s Deposition at pp. 32-40. 46 Plaintiff’s Deposition at pp. 31. 47 Declaration of Brad Daniel at ¶5. 48 Id. 49 See Exhibit C, Deposition of J. Bradley (“Brad”) Daniel, taken on November 18, 2016, at pp. 10, 12-13. 50 Declaration of Brad Daniel at ¶6. 51 Brad Daniel’s Deposition at pp. 10-11. 52 Declaration of Brad Daniel at ¶7. 53 See Neal v. Wolf Camera & Video, 1999 WL 172319, at *5 (N.D. Tex. Mar. 22, 1999) (plaintiff and employee who was promoted to the position of receiving clerk instead of plaintiff were not similarly situated employees and plaintiff could not establish a prima facie case of failure to promote because only the promoted employee had taken Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 17 of 31 PageID #: 59 11 Since Plaintiff and Mr. Rainwater held different titles with different supervisors, had different job duties, and had different work experience, they are not similarly situated. As such, Plaintiff cannot establish the fourth element of her prima facie case and her discriminatory failure to promote claim under the ADEA and Title VII should be dismissed with prejudice. 2. Capital One Has Articulated a Legitimate, Non-Discriminatory Reason for Not Promoting Plaintiff to Branch Manager. Alternatively, and only in the event the Court finds that Plaintiff can establish a prima facie case of discriminatory failure to promote (which she cannot), Capital One did not promote Plaintiff to the position of branch manager at the Airline Branch for a legitimate, non- discriminatory reason -- namely, Mr. Rainwater had successfully completed the INvest Program and the Company wanted to place an INvest program graduate in the Airline branch manager position. In 2012, Capital One implemented the INvest Program, a leadership and training program to prepare branch associates for a future branch manager position.54 At the end of 2012, Capital One selected twenty-four (24) associates throughout the Company (a maximum of three (3) per region) to participate in the Program starting in January 2013.55 Associates who successfully completed the INvest Program were assigned to a branch manager position as it became available.56 To participate in the Program, an associate must have been willing to move anywhere in the Company, since there was no guarantee a position would be available in any particular geographic location.57 Unlike Plaintiff, who testified that she only wanted a position the initiative to volunteer in the receiving department and get on-the-job training during her lunch hours and days off, even if she was encouraged to do so by the employer). 54 Brad Daniel’s Deposition at p. 10; Declaration of Brad Daniel, ¶3. 55 Declaration of Brad Daniel at ¶3. 56 Brad Daniel’s Deposition at p. 10-11. 57 Declaration of Brad Daniel at ¶4. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 18 of 31 PageID #: 60 12 in the Shreveport/Bossier, Louisiana area, Mr. Rainwater was willing to relocate to another geographic location.58 When the Airline branch manager position became available, Capital One’s 2013 INvest Program class had just recently graduated.59 Since the participants in the INvest program had been specifically trained for branch manager positions, the Company decided to place an INvest program graduate in the Airline branch manager position.60 The facts of this case show that Mr. Rainwater was assigned to the branch manager position at the Airline Branch because, unlike Plaintiff, he successfully completed the INvest Program.61 The reasons for Mr. Rainwater’s promotion were not related to his or Plaintiff’s age. Mr. Rainwater’s participation in the INvest Program constitutes a legitimate, nondiscriminatory reason for Capital One’s decision to promote him as a branch manager instead of Plaintiff. 3. Plaintiff Has No Evidence of Pretext for Discrimination. Plaintiff cannot establish that Capital One’s stated reason for its decision to promote Mr. Rainwater instead of her was pretext for discrimination, that age was the “but for” cause of her non-promotion, or that Capital One was motivated by discriminatory animus. Under the ADEA, an employee must “prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” The ADEA thus requires a showing of ‘but-for’ causation.62 Likewise, under 58 Plaintiff’s Deposition at pp. 232-233; Declaration of Brad Daniel at ¶6. 59 Brad Daniel’s Deposition at pp. 20-21, 26. 60 Brad Daniel’s Deposition at pp. 20, 26. 61 Brad Daniel’s Deposition at p. 21-22, 26. During his deposition, Mr. Daniel clarified that Plaintiff was not required to participate in the INvest Program to be considered for all branch manager positions at Capital One. The Company, however, decided that a graduate from the INvest Program would be assigned to the Airline branch manager position, as that role became available shortly after the 2013 INvest Program class graduated. 62 Carpenter v. Mississippi Valley State Univ., 807 F. Supp. 2d 570, 590 (N.D. Miss. 2011) (quoting Davis v. Farmers Ins. Exch., 372 Fed. Appx. 517, 519 (5th Cir. 2010)); Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d 470, 474–75 (5th Cir. 2015) (quoting Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 231 (5th Cir. 2015) (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097))). Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 19 of 31 PageID #: 61 13 Title VII, the plaintiff bears the burden of proving either “(1) the defendant's reason is not true, but is instead a pretext for discrimination. The pretext inquiry does not place the Court in a position of second guessing the employer’s business decisions.63 An employer may base an employment decision on a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.64 A plaintiff can establish pretext either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.65 However, generalized testimony by an employee regarding his subjective believe that her discharge was the result of discrimination is insufficient to make an issue for the jury in the face of proof showing an adequate non-discriminatory reason for the discharge.66 Furthermore, while “[p]roof that an employer's justification is pretextual is enough to support survival of summary judgment on a discrimination claim . . . when ‘the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there [i]s abundant and uncontroverted independent evidence that no discrimination ha[s] occurred,’ no rational factfinder can conclude the action is discriminatory.”67 In this case, Plaintiff cannot establish that Capital One’s legitimate, non-discriminatory reasons for their decision to promote Gary Rainwater instead of her are false or otherwise unworthy of credence. Nor does she have any evidence of disparate treatment. Ultimately, 63 LeMaire v. Louisiana Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007) (citing Bryant v. Compass Group USA, Inc., 413 F.3d 471, 478 (5th Cir. 2005)). 64 Id. (citing Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). 65 Nasti v. Ciba Specialty Chemicals, 492 F.3d 589, 593 (5th Cir. 2007) (quoting Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003)). 66 Hervey v. Mississippi Dept. of Educ., 404 Fed. Appx. 865, 868 (5th Cir. 2010) (“subjective beliefs of discrimination cannot be the basis for judicial relief.”); Dube v. Texas Health and Human Services Com’n, 2012 WL 2397566, *4 (S.D. Tex. June 25, 2012); Stevenson w. Williamson, 547 F. Supp. 2d 544, 553 (M.D. La. 2008).; Hornsby v. Conoco, Inc., 777 F.2d 243 (5th Cir. 1985). 67 Shakir v. Prairie View A & M Univ., 178 Fed. Appx. 361, 363 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 20 of 31 PageID #: 62 14 Plaintiff cannot prove that but for her age she would have been promoted to branch manager of the Airline Branch or that Capital One’s legitimate, non-discriminatory reason for not promoting her was pretextual. Moreover, Plaintiff cannot show that Capital One was otherwise motivated by her race or sex in not promoting her to the Airline branch manager position. Thus, Plaintiff’s discriminatory failure to promote claims under the ADEA and Title VII should be dismissed with prejudice. a. Plaintiff Cannot Rebut the Same-Actor Presumption. Capital One District Manager Brad Daniel made the decision to promote Gary Rainwater to the Airline branch manager position in 2013.68 With that said, Mr. Daniel also gave final approval to hire Plaintiff as an Assistant branch manager of the Benton Road branch in 2012.69 Fifth Circuit jurisprudence holds that when the same actor that hired or promoted the employee at issue is also responsible for the adverse employment action, there is a presumption that discriminatory animus did not affect the adverse decision.70 Thus, there is a presumption that Mr. Daniel, who hired Plaintiff, was not motivated by Plaintiff’s race, sex or age in not promoting her to the branch manager position at the Airline Branch, and Plaintiff has not introduced any evidence to rebut this presumption. b. Plaintiff Has No Evidence of Disparate Treatment. Furthermore, Plaintiff cannot establish pretext through any evidence of disparate treatment, as it relates to Mr. Daniel’s promotion decision. Indeed, the facts of this case show that since Mr. Daniel became a district manager for Capital One in 2009, he has filled twenty- two (22) branch manager positions with fifteen (15) women, six (6) African Americans, and two 68 Declaration of Brad Daniel at ¶7. 69 Brad Daniel’s Deposition at p. 8. 70 Ford v. Amethyst Constr., Inc., 2016 WL 1312627, at *4 (W.D. La. Apr. 4, 2016) (citing Spears v. Patterson UTI Drilling Co., 337 Fed. Appx. 416, 421-22 (5th Cir. 2009)). Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 21 of 31 PageID #: 63 15 (2) individuals who were 64 and 54 years old, respectively.71 Notably, since Plaintiff resigned in February 2014, Mr. Daniel has hired or promoted nine (9) individuals to branch manager positions in his district, including five (5) females and four (4) African Americans.72 Thus, the record clearly shows that Mr. Daniel does not discriminate based on age, race, or sex when making promotion decisions at Capital One. As such, Plaintiff cannot prove pretext through disparate treatment. c. Plaintiff Cannot Establish Capital One’s Legitimate Non- Discriminatory Reason was False or Unworthy of Credence. Finally, Plaintiff cannot establish that Capital One’s legitimate non-discriminatory reason for not promoting her to branch manager (namely, that Mr. Rainwater was promoted to the position because of his participation in the INvest Program) is false or unworthy of credence. Specifically, Plaintiff has no evidence to suggest, much less prove, that the stated reason for her non-promotion was not the real reason.73 In light of the foregoing, Plaintiff cannot carry her burden to prove that her age was the “but for” reason of her non-promotion, or that Defendant was motivated by her race or sex in its decision not to promote her. Overall, she cannot prove pretext for discrimination under Title VII and/or the ADEA. Thus, her discriminatory failure to promote claim should be dismissed with prejudice. D. Plaintiff’s Harassment Claims under the ADEA Fail as a Matter of Law. The only harassment claim over which this Court has jurisdiction is Plaintiff’s claim of age-based harassment by her supervisor, Tomika Tolliver, under the ADEA. However, because 71 Declaration of Brad Daniel at ¶8. It should be noted that Plaintiff was fifty-eight (58) years old in 2013. 72 Declaration of Brad Daniel at ¶9. 73 Carpenter v. Mississippi Valley State Univ., 807 F. Supp. 2d 570, 589 (N.D. Miss. 2011) (quoting Laxton, 333 F.3d at 578). Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 22 of 31 PageID #: 64 16 Plaintiff has no evidence of severe or pervasive conduct based on her age, this harassment claim fails as a matter of law. A plaintiff advances a claim for hostile work environment based on age discrimination by establishing that: (1) [s]he was over the age of 40; (2) [s]he was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer.74 The “‘mere utterance of an . . . epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment.”75 Ultimately, a hostile work environment exists when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”76 To determine whether harassment is so severe or pervasive that it alters the conditions of the plaintiff's employment, [the Fifth Circuit] considers a number of factors: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating (or whether it is a mere offensive utterance); and (4) whether it unreasonably interferes with the victim's work performance.77 Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.78 74 Jackson v. Honeywell Int'l, Inc., 601 Fed. Appx. 280, 288 (5th Cir. 2015) (citing Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir. 2011)). 75 Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). 76 Id., at p. 21; see also, Faragher, 524 U.S. at 788 (“Conduct must be extreme to amount to a change in the terms and conditions of employment.”). 77 White v. Gov't Employees Ins. Co., 457 Fed. Appx. 374, 380 (5th Cir. 2012) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); Jackson, 601 Fed. Appx. at 288. 78 Id. (quoting Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)); Jackson, 601 Fed. Appx. at 288. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 23 of 31 PageID #: 65 17 Finally, where, as here, the alleged supervisor harassment does not result in a tangible employment action,79 Capital One may avail itself of the affirmative defense and avoid liability entirely by showing that: (1) it exercised reasonable care to prevent and correct promptly any harassment, and (2) Plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.80 An employer may satisfy the first prong by demonstrating it had an anti-harassment policy in place that was provided to employees and pursuant to which any complaints of harassment were promptly investigated by the employer.81 1. Plaintiff Cannot Establish a Prima Facie Case of Harassment. Plaintiff alleges that her supervisor, Tomika Tolliver, “subjected [her] to frequent and repeated harassment and intimidation which created a hostile work environment.”82 However, the only alleged “harassing” conduct identified by Plaintiff in her Complaint is as follows: (1) Plaintiff alleges that she was “constantly treated less favorably than white, younger male employees in…lower level positions” and was repeatedly undermined by Tolliver; (2) on one occasion, Ms. Tolliver allegedly referred to Plaintiff as “old lady” in front of co-workers; (3) on one occasion, Plaintiff allegedly overheard Ms. Tolliver make a derogatory remark about “[Plaintiff’s] old ass” to another coworker; (4) Ms. Tolliver allegedly delegated Plaintiff’s job duties to other lower level employees and excluded her from meeting and (5) on one occasion, Ms. Tolliver allegedly told everyone to “slap” Plaintiff on their way out of a meeting.83 Of the foregoing allegations, only Ms. Tolliver’s “old lady” and “old ass” comments are based on Plaintiff’s age. The remaining allegations do not pertain to age-based conduct or 79 See Casiano v. AT&T Corp., 213 F.3d 278, 287 (5th Cir. 2000) (tangible employment actions include “official act[s] of the enterprise,” such as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”). 80 See Faragher, 524 U.S. 775; Ellerth, 524 U.S. 742. 81 See Williams v. Admin. Review Bd., 376 F.3d 471, 478–79 (5th Cir. 2004). 82 Rec. Doc. 1, ¶14. 83 Rec. Doc. 1, ¶¶15-20. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 24 of 31 PageID #: 66 18 comments.84 Furthermore, the age-related comments at issue are not severe or pervasive and ultimately Plaintiff cannot establish that the comments altered the terms and conditions of her employment. Thus, her harassment claim fails as a matter of law. a. Only Age-Based Comments/Conduct Are Actionable Under the ADEA. To the extent Plaintiff bases her age harassment claim upon the allegations that her job duties were delegated to younger employees, that Ms. Tolliver told her co-workers to “slap” her on their way out of a meeting, and that she was excluded from meetings, this conduct is not “based on” her age and her harassment claim fails since none of the foregoing conduct was conduct based on age. Absent any evidence that this conduct was based on Plaintiff’s age, it does not meet the definition of unlawful harassment under the ADEA. An essential element of a[n age] harassment claim is that the alleged conduct at issue was based on Plaintiff's age.85 In Gobert v. Saitech, Inc., the Fifth Circuit affirmed summary judgment dismissing the plaintiff’s age harassment claim because he failed to provide any evidence that the allegations that his supervisor “embarrassed him a couple of times at meetings (without referencing his race or age) and assigned him a lousy office” were based on age.86 In this case, Plaintiff testified she did not know why Ms. Tolliver told employees to “slap” her (Plaintiff) on their way out of a meeting: Q: Why do you think she said that? A: I have no idea. Q: Was that based on your age? 84 As argued in Section II. B, Plaintiff’s claims regarding Ms. Tolliver’s alleged reassignment of her job duties or any alleged harassment based on race or sex have not been exhausted and, therefore, are barred. Nonetheless, Capital One maintains that even if these claims were not administratively barred, they are not based on Plaintiff’s age. 85 Lewis v. Integrated Med. Sys. Int'l, Inc., 2015 WL 7449562, at *2 (E.D. La. June 2, 2015) (Morgan, J.). 86 Gobert v. Saitech, Inc., 439 Fed. Appx. 304, 307 (5th Cir. 2011) (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 25 of 31 PageID #: 67 19 A: It could have been based on any number of things. I don’t know if it was just based on my age. I know that it was inappropriate.87 Plaintiff also testified that her duties were allegedly taken away from her because she spoke with Ms. Tolliver about her concerns that Ms. Tolliver had behaved “unprofessionally” with a coworker – not because of Plaintiff’s age88: Q: Is it your belief that all of these job duties were taken away because of your conversation with Tomika about the [coworker] issue? A: Well, I can't say emphatically, but that was my suspicion.89 Here, the only age-based comments alleged in Plaintiff’s EEOC Charge and Complaint are (1) Ms. Tolliver’s allegedly referring to Plaintiff as an “old lady” on June 18, 2013, and (2) Ms. Tolliver’s alleged remark about “[Plaintiff’s] old ass” to another coworker on August 22, 2013.90 These two comments simply do not arise to the level of severe or pervasive conduct. In Jackson v. Honeywell Int'l, Inc., the Fifth Circuit held that a co-worker’s comments “three to four times that [the plaintiff] ‘should retire’ so that [the employer] would not have to lay off younger employees,” and that “during a discussion regarding the unlikelihood of successfully completing his PIP, [plaintiff’s manager] suggested [he] should voluntarily retire and accept a severance package,” were isolated statements that did not constitute severe or pervasive harassment based on age.91 Plaintiff’s harassment claim should similarly fail here. Despite the very limited allegations of age-based comments in her EEOC Charge and Complaint, Plaintiff testified for the first time at her deposition that Ms. Tolliver and Mr. Daniel 87 Plaintiff’s Deposition at p. 252. 88 Plaintiff’s Deposition, pp. 43-45, 47-49. 89 Plaintiff’s Deposition, p. 49. 90Exhibit A, Plaintiff’s EEOC Charge; Rec. Doc. at ¶¶16, 17. 91 Jackson v. Honeywell Int'l, Inc., 601 Fed. Appx. 280, 288 (5th Cir. 2015); see also Reed v. Neopost USA, Inc., 701 F.3d 434, 443 (5th Cir. 2012) (holding that incidental or occasional age-based comments, including references to an employee like “old man” and “old fart” were insufficient to support an age-based hostile work environment claim). Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 26 of 31 PageID #: 68 20 made age-based statements during one phone call, and that Ms. Tolliver referred to her as “old lady” in front of her co-workers more than twice.92 Plaintiff could not provide the dates of these alleged comments, the time frame in which they occurred, the date of the first comment or the last comment, or how frequently the comments occurred: Q: And when did she call you an old lady? A: I don't remember. It happened more than once. I don't remember the first time, and I can't tell you the last time. Q: How –- how many times did it happen? A: Honestly, I don't know. When you hear something, –- because it bothered me, I can't tell you how many times I heard her say it. I heard her say it enough to –- to the point where it really upset me. Q: How often did you hear her say it? A: If you want a number, I would have to guess at it, and I don't want to do that.93 Accordingly, Plaintiff has not introduced any evidence that the frequency of the alleged age- based comments is such that would rise to the level of severe or pervasive harassment.94 Her age harassment claim should, therefore, be dismissed with prejudice. 2. Plaintiff’s Harassment Claims Are Barred by the Faragher-Ellerth Affirmative Defense. Even if the Plaintiff could establish a prima facie case of age-based harassment (which she cannot), her age harassment claims under the ADEA is barred by the Faragher/Ellerth affirmative defense because Plaintiff has no evidence that the perceived age harassment resulted 92Plaintiff’s Deposition at p. 198. 93 Plaintiff’s Deposition, pp.198-99. 94 Reed v. Neopost USA, Inc., 701 F.3d 434, 443 (5th Cir. 2012) (holding no age harassment in part based on plaintiff’s inability to “‘always remember who said what and when,’ [o]ther than the general statement that the comments occurred at various times between 2004 and 2009.”). Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 27 of 31 PageID #: 69 21 in a tangible employment action and she admittedly failed to reasonably avail herself of the preventative and corrective measures offered by Capital One.95 Here, the alleged age-based comments did not result in a tangible employment action. A tangible employment action is a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”96 Plaintiff has no evidence that the alleged age-based comments resulted in a tangible employment action. Specifically, Plaintiff has no evidence that the age-based comments were related to, much less resulted in, her non-promotion to the branch manager position, and Plaintiff was not reassigned with significantly different responsibilities, nor were her compensation and benefits altered. As such, Capital One can assert the Faragher- Ellerth defense to Plaintiff’s age harassment claim.97 The Faragher-Ellerth defense bars Plaintiff’s age harassment claim. The record shows that Capital One has an anti-harassment policy, which prohibits harassment based on age and instructs employees to report perceived harassment to their manager, to Associate Relations, or to the Ethics Hotline.98 Plaintiff testified that she was aware of Capital One’s policies prohibiting harassment based on age, and she understood that she could report perceived harassment to Associate Relations or the Ethics Hotline.99 However, Plaintiff admitted that she never reported any perceived age-based harassing conduct to her manager, Associate Relations, or the Ethics Hotline during her employment with the Company.100 Although Plaintiff claims 95 Otwell v. Aaron Rents, Inc., 2007 WL 433078, at *3 (W.D. La. Feb. 5, 2007) (“the Faragher/Ellerth defense is routinely applied to claims arising under the LEDL.”). 96 Pullen v. Caddo Par. Sch. Bd., 830 F.3d 205, 214 (5th Cir. 2016) (quoting Vance v. Ball State Univ., -- U.S. --, 133 S.Ct. 2434, 2439, 2443-44, 186 L.Ed.2d 565 (2013)). 97 Pullen, 830 F.3d at 209. 98 Plaintiff’s Deposition at p. 211. 99 Plaintiff’s Deposition at pp. 211-212, 216 100 Plaintiff’s Deposition at pp. 212, 216, 222-223. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 28 of 31 PageID #: 70 22 she did not report the perceived harassment out of “fear for [her] job”, she has no substantial evidence to support this subjective fear.101 The Fifth Circuit has explained that: [a]ll harassment victims risk retaliation when they complain. For [the ADEA] to be properly facilitated, the reasons for not complaining about harassment should be substantial and based upon objective evidence that some significant retaliation will take place. For example, a plaintiff may bring forward evidence of prior unresponsive action by the company or management to actual complaints. Here, there was no evidence that [the harasser] had ever taken any adverse tangible employment action against complaining employees....102 Plaintiff testified she did not complain about harassment to Associate Relations or to the hotline, as required by Capital One policy, because she feared for her job.103 Plaintiff testified that her “fear” was based on an incident involving another coworker, in which Ms. Tolliver allegedly instructed Plaintiff not to give accounts to a banker that complained about Ms. Tolliver.104 This testimony does not constitute objective evidence that some significant retaliation would take place if Plaintiff reported the perceived harassment. Notably, Plaintiff has no evidence that Ms. Tolliver took any tangible employment action against the banker who complained about her. Thus, Plaintiff’s alleged “fear” of losing her job is wholly unsupported by any competent evidence and does not excuse her from reporting perceived harassing conduct to the appropriate channel as set forth in Capital One’s policies. Accordingly, Plaintiff unreasonably failed to take advantage of the opportunities Capital One provided to prevent and correct harassing conduct. Her harassment claims under the ADEA are therefore barred by the Faragher-Ellerth affirmative defense. 101 Plaintiff’s Deposition at pp. 212. 102 Harper v. City of Jackson Mun. Sch. Dist., 149 Fed. Appx. 295, 302 (5th Cir. 2005) (emphasis added) (quoting Young v. R.R. Morrison and Son, Inc., 159 F. Supp. 2d 921, 927 (N.D. Miss. 2000)). 103 Plaintiff’s Deposition at pp. 212, 216, 222-223. 104 Plaintiff’s Deposition at pp. 212-216. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 29 of 31 PageID #: 71 23 III. CONCLUSION Capital One is entitled to summary judgment on all of Plaintiff Jackie LaCour’s claims because (1) she failed to exhaust her claims of retaliation, discriminatory assignment of duties and denial of training, constructive discharge, and harassment based on race and/or sex, as required by Title VII and the ADEA; (2) Plaintiff’s discriminatory failure to promote claim fails under Title VII and the ADEA; and (3) Plaintiff has no evidence of severe or pervasive harassment based on her age and this claim is nevertheless barred by the Faragher-Ellerth affirmative defense. For all these reasons Plaintiff’s claims should be dismissed in their entirety and at Plaintiff’s sole cost. /s/ Jennifer L. Englander Monique R. Gougisha, LA #28057 Jennifer L. Englander, LA #29572 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: 504.648.3840 Facsimile: 504.648.3859 Electronic Mail: monique.gougisha@ogletreedeakins.com jenny.englander@ogletreedeakins.com Attorneys for Defendant Capital One, N.A. Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 30 of 31 PageID #: 72 24 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum in Support of Capital One’s Motion for Summary Judgment has been served on all counsel of record via the Court’s Electronic Filing System. This 22nd day of December 2016. /s/Jennifer L. Englander 27754967.1 Case 5:15-cv-02615-SMH-MLH Document 13-1 Filed 12/22/16 Page 31 of 31 PageID #: 73 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION JACKIE LACOUR, Plaintiff, versus CAPITAL ONE FINANCIAL, Defendant. ) ) ) ) ) ) ) ) ) ) Civil Action File No. 15-CV-02615 Judge: S. Maurice Hicks Magistrate Judge: Mark L. Hornsby CAPITAL ONE’S STATEMENT OF UNCONTESTED MATERIAL FACTS Pursuant to Local Rule 56.1, Defendant Capital One, N.A. (incorrectly named in Plaintiff’s Complaint as “Capital One Financial”) submits the following statement of material facts for which there is no genuine issue to be tried:1 1. During the pertinent time period, Plaintiff was employed as the assistant branch manager at Capital One’s Benton Road branch in Shreveport, Louisiana. Plaintiff became the assistant branch manager of the Benton Road branch in May 2012.2 2. Capital One District Manager Brad Daniel gave the final approval to hire Plaintiff as an assistant branch manager of the Benton Road branch in May 2012.3 3. Plaintiff’s immediate supervisor was Tomika Tolliver (a black female), who was the Benton Road branch manager.4 1 These facts are presented in a light most favorable to Plaintiff in order to assist the Court in its decision-making process under Fed. R. Civ. P. 56. For purposes of trial, however, Capital One reserves the right to present its defenses in a light most favorable to the Defendant. 2 See Exhibit A, Plaintiff’s Deposition, taken on October 24, 2016, at p. 30. 3 See Exhibit C, Deposition of J. Bradley (“Brad”) Daniel, taken on November 18, 2016, at p. 8. 4 Plaintiff’s Deposition at p. 31. Case 5:15-cv-02615-SMH-MLH Document 13-2 Filed 12/22/16 Page 1 of 6 PageID #: 74 2 4. As assistant branch manager, Plaintiff was responsible for branch operations, including management of tellers, as well as ensuring the branch met its performance and sales goals through teller referrals to the bankers.5 5. In 2012, Capital One implemented the INvest Program, a leadership and training program to prepare branch associates for a future branch manager position.6 6. At the end of 2012, Capital One selected twenty-four (24) associates throughout the Company (a maximum of three (3) per region) to participate in the INvest Program, starting in January 2013.7 7. Associates who successfully graduated from the INvest Program were then assigned to a branch manager position as it became available.8 8. Participants in the INvest program had to be willing to relocate to fill a branch manager opening anywhere in the Company, since there was no guarantee a position would be available in any particular geographic location.9 9. Gary Rainwater was employed by Capital One as a Multi Branch Banker who worked at the Benton Road Branch and several other branches in the Shreveport area.10 10. As a Multi-Branch Banker, Mr. Rainwater was responsible for sales and customer service duties relative to banking products, such as checking, savings, and loan accounts.11 5 Plaintiff’s Deposition at pp. 32-40. 6 Brad Daniel’s Deposition at p. 10. 7 See Exhibit B, Declaration of J. Bradley (“Brad”) Daniel, at ¶3. 8 Brad Daniel’s Deposition at pp. 10-11. 9 Declaration of Brad Daniel at ¶4. 10 Declaration of Brad Daniel at ¶5. 11 Declaration of Brad Daniel at ¶5. Case 5:15-cv-02615-SMH-MLH Document 13-2 Filed 12/22/16 Page 2 of 6 PageID #: 75 3 11. Mr. Rainwater reported to Tomika Tolliver and numerous other branch managers because his duties extended to multiple branches, in addition to the Benton Road branch.12 12. Mr. Rainwater was a top performer in Mr. Daniel’s district and the only participant in the INvest Program from that district in 2013.13 13. In the fall of 2013, Mr. Rainwater successfully graduated from the INvest Program and, shortly thereafter, Mr. Daniel made the decision to promote Mr. Rainwater to the Airline branch manager position.14 14. When the Airline branch manager position became available, Capital One’s 2013 INvest Program class had just recently graduated. Since the participants in the INvest Program had been specifically trained for branch manager positions, the Company decided to place an INvest program graduate in the Airline branch manager position.15 15. Plaintiff testified that she only wanted a branch manager position based in the Shreveport/Bossier, Louisiana, area.16 16. Mr. Rainwater was willing to relocate to another geographic location.17 17. Plaintiff testified that she learned about Mr. Rainwater’s participation in the INvest Program in or about June 2013.18 12 Declaration of Brad Daniel at ¶5. 13 Declaration of Brad Daniel at ¶6. 14 Declaration of Brad Daniel at ¶7. 15 Brad Daniel’s Deposition at pp. 20-21, 26. 16 Plaintiff’s Deposition at p. 232-233. 17 Declaration of Brad Daniel at ¶6. 18 Plaintiff’s Deposition at pp. 126-128. Case 5:15-cv-02615-SMH-MLH Document 13-2 Filed 12/22/16 Page 3 of 6 PageID #: 76 4 18. Since becoming a district manager in 2009, Mr. Daniel has filled twenty-two (22) branch manager positions with fifteen (15) women, six (6) African Americans, and two (2) individuals who were 64 and 54 years old, respectively.19 19. Capital One has a comprehensive anti-harassment policy, which prohibits harassment based on age and instructs employees to report perceived harassment to their manager, to Associate Relations, or to the Ethics Hotline.20 20. Plaintiff testified that she was aware of Capital One’s policies prohibiting harassment based on age, and she understood that she could report perceived harassment to her manager, Associate Relations or the Ethics Hotline.21 21. Plaintiff never reported any perceived age-based harassing conduct to her manager, Associate Relations or the Ethics Hotline during her employment with the Company.22 22. Plaintiff resigned from her employment with Capital One in February 2014.23 23. Since Plaintiff’s resignation from Capital One, Mr. Daniel has hired or promoted nine (9) individuals to branch manager in his district, including five (5) females and four (4) African Americans.24 24. Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on or about May 16, 2014.25 19 Declaration of Brad Daniel at ¶8. 20 Plaintiff’s Deposition at p. 211. 21 Plaintiff’s Deposition at pp. 211-212, 216, 222. 22 Plaintiff’s Deposition at pp. 212, 216, 222-223. 23 Plaintiff’s Deposition at p. 223. 24 Declaration of Brad Daniel at ¶9. 25 Plaintiff’s Deposition at pp. 233-234 (attaching her EEOC Charge of Discrimination). Case 5:15-cv-02615-SMH-MLH Document 13-2 Filed 12/22/16 Page 4 of 6 PageID #: 77 5 25. Plaintiff’s EEOC Charge only alleges: (1) her failure to promote claim based on her age, race, and/or sex, and (2) her age-based harassment claim.26 26. The “particulars” of Plaintiff’s EEOC Charge do not include any factual allegations regarding retaliation, discriminatory assignment duties or denial of training, constructive discharge, or harassment based on race or sex.27 27. Although Plaintiff checked the boxes for “age,” “sex” and “race” discrimination on her EEOC Charge, she did not check the box for “retaliation”.28 28. Plaintiff’s EEOC Charge specifically alleges that (1) in October 2013 she was denied a promotion to the branch manager position at Capital One’s Airline Branch because of her age, race, and/or sex, and (2) that her supervisor allegedly made two age-based comments, one on June 18, 2013, and another on August 22, 2013.29 29. Plaintiff states in her Charge that she resigned from her employment on February 24, 2014, and that her last of work was March 4, 2014. The Charge does not provide any reasons for Plaintiff’s resignation.30 30. Plaintiff reviewed her EEOC Charge before signing it and confirmed that its contents were true and correct.31 26 Exhibit A, Plaintiff’s EEOC Charge. 27 Exhibit A, Plaintiff’s EEOC Charge. 28 Exhibit A, Plaintiff’s EEOC Charge. 29 Exhibit A, Plaintiff’s EEOC Charge. 30 Exhibit A, Plaintiff’s EEOC Charge. 31 Plaintiff’s Deposition at pp. 233-234. Case 5:15-cv-02615-SMH-MLH Document 13-2 Filed 12/22/16 Page 5 of 6 PageID #: 78 6 Respectfully submitted, /s/ Jennifer L. Englander Monique R. Gougisha, LA #28057 Jennifer L. Englander, LA #29572 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: 504.648.3840 Facsimile: 504.648.3859 Electronic Mail: monique.gougisha@ogletreedeakins.com jenny.englander@ogletreedeakins.com Attorneys for Defendant CAPITAL ONE, N.A. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Statement of Uncontested Material Facts has been served on all counsel of record via the Court’s Electronic Filing System. This 22nd day of December 2016. /s/Jennifer L. Englander 27829646.1 Case 5:15-cv-02615-SMH-MLH Document 13-2 Filed 12/22/16 Page 6 of 6 PageID #: 79 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 1 of 38 PageID #: 80 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 2 of 38 PageID #: 81 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 3 of 38 PageID #: 82 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 4 of 38 PageID #: 83 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 5 of 38 PageID #: 84 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 6 of 38 PageID #: 85 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 7 of 38 PageID #: 86 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 8 of 38 PageID #: 87 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 9 of 38 PageID #: 88 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 10 of 38 PageID #: 89 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 11 of 38 PageID #: 90 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 12 of 38 PageID #: 91 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 13 of 38 PageID #: 92 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 14 of 38 PageID #: 93 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 15 of 38 PageID #: 94 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 16 of 38 PageID #: 95 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 17 of 38 PageID #: 96 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 18 of 38 PageID #: 97 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 19 of 38 PageID #: 98 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 20 of 38 PageID #: 99 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 21 of 38 PageID #: 100 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 22 of 38 PageID #: 101 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 23 of 38 PageID #: 102 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 24 of 38 PageID #: 103 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 25 of 38 PageID #: 104 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 26 of 38 PageID #: 105 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 27 of 38 PageID #: 106 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 28 of 38 PageID #: 107 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 29 of 38 PageID #: 108 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 30 of 38 PageID #: 109 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 31 of 38 PageID #: 110 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 32 of 38 PageID #: 111 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 33 of 38 PageID #: 112 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 34 of 38 PageID #: 113 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 35 of 38 PageID #: 114 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 36 of 38 PageID #: 115 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 37 of 38 PageID #: 116 Case 5:15-cv-02615-SMH-MLH Document 13-3 Filed 12/22/16 Page 38 of 38 PageID #: 117 Case 5:15-cv-02615-SMH-MLH Document 13-4 Filed 12/22/16 Page 1 of 2 PageID #: 118 Case 5:15-cv-02615-SMH-MLH Document 13-4 Filed 12/22/16 Page 2 of 2 PageID #: 119 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 1 of 11 PageID #: 120 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 2 of 11 PageID #: 121 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 3 of 11 PageID #: 122 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 4 of 11 PageID #: 123 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 5 of 11 PageID #: 124 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 6 of 11 PageID #: 125 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 7 of 11 PageID #: 126 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 8 of 11 PageID #: 127 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 9 of 11 PageID #: 128 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 10 of 11 PageID #: 129 Case 5:15-cv-02615-SMH-MLH Document 13-5 Filed 12/22/16 Page 11 of 11 PageID #: 130