The Fifth Circuit grapples with how, under Title VII, a court may impute the discriminatory behavior of a co-worker to the ultimate decision-maker, in light of Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). The court reverses summary judgment, holding that a co-worker's campaign to damage a female officer's reputation and prevent her promotion could be attributed to his superiors.
Haire v. Louisiana State Univ., No. 12-30290 (5th Cir. May 21, 2013): The plaintiff, a major in the LSU police department and a veteran of the force for over 20 years, applied for a promotion to the Chief of Police vacancy. While she sought this promotion, her candidacy was allegedly opposed by a male colleague:
"Haire claims she began to face hostility from a co-worker, Lawarence Rabalais ('Rabalais'), who was also a LSUPD major and who was competing with Haire for the promotion to Chief of Police. Rabalais allegedly slandered Haire in conjunction with a newspaper article written about Haire's husband, and, of considerable relevance to this case, told a LSUPD co-worker that he wanted to 'to get rid of' Haire and that, if a woman was appointed to the position of Chief, Rabalais would quit." [Emphasis in original.]
Haire claimed that she was lured by her interim chief, Gary Durham, into entering data into the police reporting system about the arrest of a prominent campus figure (named Collins) in possible violation of police procedure. The resulting investigation placed Rabalais in the position of investigator, and the ultimate Coaching Letter (issued by LSU Chancellor Martin) was highly critical of Haire's behavior.
Rabalais also was permitted to evaluate Haire's performance, leading to her lowest performance ratings in her career; the review led both to removal of privileges and the effective sidetracking of her promotion ambitions.
Rabalais was eventually promoted to the position Haire sought, despite lacking the posted educational credentials for the job. In her lawsuit, Haire contended that her failure to receive the promotion (that was given to Rabalais) was motivated by gender-based discriminatory animus, as well as retaliation for her filing EEOC and Louisiana Commission for Human Rights ("LCHR") complaints. The district court granted summary judgment, holding "that her gender was a motivating factor in not promoting her to Chief of Police, and that she could not prevail on her retaliation or reprisal claims because there is no causal connection between her protected activity and any adverse employment action."
The Fifth Circuit reverses on both claims. After determining that Haire made out a prima facie claim of discrimination (she was denied a promotion in favor of a male candidate who did not even meet the posted job requirements), it evaluates whether there was sufficient evidence to rebut the university's explanation that Haire was passed over due to her violation of police procedure in the Collins case.
"Pretext is the crux of Haire's case; she provides evidence that she was following a lawful order from her supervisor and LSUPD had no formal written procedure that clearly prohibited her from obeying her supervisor's command to file a second report. For her, what followed from the Collins incident was all a charade that LSU undertook to cover its tracks in the sex discrimination suit anticipated. By papering Haire's files with disciplinary write-ups, it could protect itself with a sham justification for not promoting a female applicant who was more qualified."
The record established, first, that there was a genuine dispute of material fact whether Haire was following a lawful order during the Collins incident:
"In his deposition, Durham testified that he gave Haire a lawful order. He acknowledged that, if she had not obeyed it, she could have been disciplined by the department. Rabalais, in his deposition, added that, assuming Haire had obeyed a lawful order from Durham, she would not have done anything wrong. And [co-worker] Marian Callier, finally, stated that Haire initially questioned Durham's order as improper procedure but that he instructed her to enter the information into the police blotter anyway."
The panel also holds that Rabalais's own biased motives infected the decision-making process, making his superior - the Chancellor who made the promotion decision - a "cat's paw" under the rubric of Staub:
"Rabalais played a role in the investigation of Haire, was responsible for parts of the Coaching Letter, and reported to the formal decision maker, Chancellor Martin, about the 'normal procedure' within the LSUPD with respect to entering information into the police report posting system . . . . Thus, the Chancellor, who was new to LSU at the time and unfamiliar with LSUPD policy, obtained from Rabalais what the 'normal procedure' was and then attributed wrongdoing to Haire for violating what he understood, from Rabalais's description, that procedure to be."
The panel also holds that the record supports the retaliation claim:
"Sharon Gonzalez, who worked in LSU Risk Management alongside Haire and Durham, testified that Haire is 'alienated from administration at the police department,' that 'Rabalais doesn't talk to her,' and that the situation has 'gotten worse since this lawsuit.' Gonzales further said that Rabalais 'demeans' Haire and 'keeps her out of meetings.' In sum, Gonzalez felt that LSU is 'taking things away from [Haire].' Haire has also become ineligible for overtime pay, which has an effect on her income."
Finally, there was evidence that the denial of promotion coincided with Haire's discrimination charges: "Rabalais was named interim Chief in August 2009, Haire filed her EEOC charge on September 29, 2009, and Rabalais was named permanent Chief in January 2010. This timing, coupled with the gradual changes in Haire's duties noted by Sharon Gonzalez, is enough to satisfy the [causation] prong."