IN THE UNITED STATES DISTRICT COURT

f1tVn.!S)ft:D,r~J'~.L'~E,,'.PDOnrU:RI TA
9911AR .. 5 ." , - .

FOR THE MIDDLE DISTRICT OF LOUISIAN:§;/GN

PH 3: 5/

UNITED STATES OF AMERICA,

-.R'/ ~CL~ IR~ARrrir--

Plaintiff, v.

CIVIL ACTION NO. 97-264-A-3

EAST BATON ROUGE PARISH SCHOOL BOARD,

Defendant.

.. [i'u(!h sad]

ORDER APPROVING INDIVIDUAL RELIEF AWARDS

Upon consideration of the plaintiff United States' request

at the conclusion of the February 26, 1999 hearing at which the

Court considered objections by individuals to final approval by

the Court of the United States' recommendation concerning

individual relief awards, the Court enters the following orders.

1. ORDERED that the written objections filed by the following

ten individuals are overruled: Matissie Bland; Rose Marie

Butler; Rigina Gail Whitmore Green; Yolanda Lovely; Ruby C.

Marshall; Marjorie Payton; Euradean Stewart; LaDona Stewart;

Ollie Taplin; and Bertha Twine. The Court notes that Ms. Bland,

Ms. Butler, Ms. Lovely, and Ms. Twine attended the hearing on

February 26, 1999 and were allowed to testify. The remaining six

individuals who filed written objections did not attend the

hearing or did not want to testify.

2. It is further ORDERED that the objections that were

presented at the hearing by the following four individuals are

~ OKT. & ENTEREIJ

f'H

DATE,____- - P./CM~
NOTICE MAILED T.O:
nAT~ o~s1~: -o-ur-

11111111111111111 3: 97-cv-00264 35 - 1

DATE: 03/05/99

DEPUTY CLERK: BW

overruled: Sarah McKinnis (on behalf of her mother, Pearl McKinnis); Carol M.. Jones; Diane Lindsey; and Mosella Wright. 3. It is further ORDERED that the United States' recommendation concerning individual relief awards as set forth in exhibits A and B of its Amended Report Regarding Individual Relief ("Amended Report") is approved. The East Baton Rouge Parish School Board ("School Board") shall provide job opportunity relief to eight individuals among the 28 claimants enumerated in exhibit B of the Amended Report for the Janitor II position by offering such relief to these individuals in rank-order according to their remedial seniority date beginning with the eligible individual with the earliest seniority date. Every claimant listed in exhibit B of the Amended report who is offered and accepts a position of employment with the School Board, or if such a claimant is an incumbent employee in a covered position is offered and accepts a remedial seniority date, will be given the remedial seniority date listed next to each such claimant in exhibit B of the Amended Report.
,
4. It is further ORDERED that the School Board shall make employer pension fund contributions retroactive to the claimant's remedial seniority date--subject to the claimant making her retroactive employee contribution--on behalf of each claimant who is offered and accepts job opportunity relief and/or remedial seniority relief. 5. It is further ORDERED that the interest that has accrued on the settlement fund shall be allocated on a pro-rata basis among the eligible claimants (exhibit A to the Amended Report) and
2

shall be distributed with the checks for monetary relief as provided in paragraphs 41 and 46 of the Consent Decree. 6. It is further ORDERED that the School Board shall within 20 days from the date of entry of this Order, notify all eligible claimants of their relief awards and provide them with releases as provided in paragraphs 55 and 56 of the Consent Decree. 7. It is further ORDERED that if, after notification by the School Board, an eligible claimant does not return a notarized release to the School Board within 45 days, no individual relief shall, unless good cause can be shown, be awarded to the claimant and her award of monetary relief will be redistributed among the remaining eligible claimants.

Entered this

daYOf~~ , 1999 .

•

States

Judge

3

CERTIFICATE OF SERVICE
I hereby certify that on March~, 1999 I caused to be
served, via first-class mail, postage prepaid, a copy of the
[proposed] Order Approving Individual Relief Awards, upon:
Kenneth F: Sills
Hammonds & Sills
Quad One, Suite C 1111 South Foster Drive P.O. Box 65236 Baton Rouge, Louisiana 70896
Nancy Picard Robein, Urann & Lurye P.O. Box 6768 2540 Severn Avenue Suite 400 Metairie, Louisiana 70009-6768
James P. Thompson Assistant United States Attorney 777 Florida Street, Suite 208 Baton Rouge, Louisiana 70801
LUIS A. LAVIN Trial Attorney U. S. Department of Justice Civil Rights Division Employment Litigation Section P. O. Box 65968 Washington, D. C. 20035-5968 (202) 514-7013

 
 M~'( 27 1999
u.s. D\S"~~rOeFoLOUURIT
MIDDLE OIS,RI DEPUTY CLERK

u,s~ DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
f FILED MAY 281999 I " RICHARD T. MARTIN CLERK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

DOROTHY BANKS, TINA BROOKS, SHIRLEY BROWN,

*

ANNETTE GRAY, MARY L. HOLMES, ANNIE JOHNSON,

AMY LANE, ROSA MALVEAU, DOROTHY MCPIPE,

*

ALMA NEWMAN, MAGGIE TUCKER, BERTHA TWINE,

BERTHELLA WALLACE, EDNA wELCH,

*

MARY WILLIAMS, and NELLIE WILLIAMS

*

VERSUS

*
EAST BATON ROUGE PARISH SCHOOL BOARD, .

INGRID KELLEY, WARREN L. PRATT, JR"

*

DR. PRESS L. ROBINSON, SR., JACQUELINE MIMS,

PATRICE NIQUILLE, PATRICIA HAYNE-SMITH,

*

NOEL HAMMATT, ROGER MOSER, DANIEL R.

HENDERSON, ELDON R. LEDOUX, DALTON DEVALL,

*

WILLIAM P, BLACK, and JAMES MANLEY

*

* * ******* **** *

FIRST AMENDED COMPLAINT

CIVIL ACTION NO. 98-974 SECTION "A" MAG. 2
JURY REQUESTED

Plaintiffs, Dorothy Banks, Tina Brooks, Shirley Brown, Annette Gray, Mary L. Holmes,

Annie Johnson, Amy Lane, Rosa Malveau, Dorothy McPipe, Alma Newman, Maggie Tucker, Bertha

Twine, Berthella Wallace, Edna Welch, Mary Williams, and Nellie Williams reurge all of the

allegations in their original Complaint except to eliminate as a party defendant, Patrice Niquille.

II
DATE: 05/28/99

I1111111111111
3: 98-cv-00974 35 - 1 DEPUTY CLERK: 8P

Therefore, the introduction, Paragraph 4, Paragraph 28 and Count III oftheir original Complaint are amended as follows:
Plaintiffs, Dorothy Banks, Tina Brooks, Shirley Brown, Annette Gray, Mary L. Holmes, Annie Johnson, Amy Lane, Rosa Malveau, Dorothy McPipe, Alma Newman, Maggie Tucker, Bertha Twine, Berthella Wallace, Edna Welch, Mary Williams, and Nellie Williams, complain against defendants, East Baton Rouge Parish School Board ("EBRPSB" or "School Board"), Ingrid Kelley, Warren L. Pratt, Jr., Dr. Press L. Robinson, Sr., Jacqueline Mims, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall, William P. Black, and James Manley alleging:
4.
Defendants, Ingrid Kelley, Warren L. Pratt, Jr., Dr. Press L. Robinson, Sr., Jacqueline Mims, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall and William P. Black are persons offull age ofmajority who are residents of Baton Rouge, Louisiana and who are members of the EBRPSB.
28. Upon information and belief, defendants Manley and School Board members, Ingrid Kelley, Warren L. Pratt, Jr., Dr. Press L. Robinson, Sr., Jacqueline Mims,
-2-

Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall, and William P. Black established the conditions, qualifications and job description for a full-time janitorial position with the intent to retaliate against female employees who had filed a lawsuit with the School Board; alternatively, the conditions that they placed on this new position had a discriminatory impact on the plaintiffs.
COUNT III
Defendants, East Baton Rouge Parish School Board, Ingrid Kelley, Warren L. Pratt, Jr., Dr. Press L. Robinson, Sr., Jacqueline Mims, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall, William P. Black, and James Manley have discriminated against plaintiffs under color of state law in violation ofthe Civil Rights Act of 1871,42 U.S.C. §1983.
-3-

WHEREFORE, plaintiffs specifically reurge and reallege all allegations, averments and prayers as stated in their original Complaint. Plaintiffs further pray for all general and equitable relief.
Respectfully submitted, ROBEIN, URANN & LURYE, P.L.C.

Louis L. Rotein, Jr. (Bar No. 11307) Nancy Picard (Bar No. 19449) P.O. Box 6768 2540 Severn Avenue, Suite 400 (70002) Metairie, Louisiana 70009-6768 (504) 885-9994
CERTIFICATE OF SERVICE
I certify that a copy of the above and foregoing has been served on all counsel of record by depositing same in the United States Mail, postage prepaid, this 25th day of May 1999.

F:\WP51 \ANNETfE\BRASE\MDLA\PLEADING\compJainl.l 51.wpd

Nancy Pi~ard

-4-

 
 UNITED STATES DISTRICT COURT

FILED
"" f'1lUo.rSH. .~'O.' I. ;S'1T' ~. ..,"C,Or)jU::"R1T)\ ....
99 JUN -7 PH 4: 05

MIDDLE DISTRICT OF LOUISIANA

SIGRNJ r.;CH7;A~R~D";;T."7N-:-:-A""':""R-Tl-N-
CLERK

DOROTHY BANKS, TINA BROOKS,

SIDRLEY BROWN, ANNETTE GRAY,

MARY L. HOLMES, ANNIE JOHNSON,

AMY LANE, ROSA MALVEAU, DOROTHY

MCPIPE, ALMA NEWMAN, MAGGIE

TUCKER, BERTHA TWINE, BERTHELLA

WALLACE, EDNA WELCH, MARY WILLIAMS

AND NELLIE WILLIAMS

CIVIL ACTION

VERSUS

NO. 98-974-A-M2

EAST BATON ROUGE PARISH SCHOOL

BOARD, INGRID KELLY, WARREN L.

PRATT, JR., DR. PRESS ROBINSON, SR.,

JACQUELINE MIMS, PATRICE NIQUlLLE,

PATRICIA HAYNE-SMITH, NOEL HAMMATT,

ROGER MOSER, DANIEL R. HENDERSON,

ELDON R. LEDOUX, DALTON DEVALL,

WILLIAM P. BLACK AND JAMES MANLEY

ORDER

IT IS ORDERED THAT:

1.

Any party in this litigation having in their possession, receiving, or otherwise making

use of the Test of Adult Basic Education published by CTBlMcGraw-Hill shall treat the

documents as confidential for which a protective order is legally justified under Rule 26(c).

2.

DKT. & ENTEIt't!~THER, the attorneys for the parties in this litigation shall handle and may

~~~CE~~~~D TO~ , ·;.'i.kH~'I:~L':i·I';~'

4 I _
V

l

'DATE~ ttl,~/~BY

p~·C~
~~ CI cJ.... tr::.:..

IIII~IIIUI ~IU~llllnl~ II11I

3: 99-cv-00974 36 - 1

DATE: 06/07/99

DEPUTY CLERK' BW

disclose the test only in conformity with the Joint Stipulation of Facts entered into by the attorneys for the parties and filed herein.
IT IS SO ORDERED: Signed in chambers in Baton Rouge, Louisiana, this 7th day of June, 1999.
r;;{JJ;iz/ GISTRATEJUDGE CHRISTINE NOLAND

 
 FILED
UNITED STATES DISTRICT COURT;;~'!~:' niST. ~9H~R~A.

MIDDLE DISTRICT OF LOUISIANA 99 JUL 30 Pt-1 4: 49

UNITED STATES OF AMERICA
VERSUS
EAST BATON ROUGE PARISH SCHOOL BOARD
Consolidated With: DOROTHY BANKS, ET AL
VERSUS
EAST BATON ROUGE PARISH SCHOOL BOARD, ET AL

SIGN__....... - __ RICIi.6.RO T. MARTIN
CLERK
CIVIL ACTION NO. 97-264-A
CIVIL ACTION NO. 98-974-A

RULING ON MOTIONS This matter is before the court on a motion by defendants1 for summary judgment in Civil Action No. 98-974-A. Also pending is a motion by defendants to dismiss Count III of the complaint. Both motions are opposed. There is no need for
oral argument. Jurisdiction is based upon 28 U.S.C. § 1331.
This employment discrimination case challenges certain employment practices of defendant East Baton Rouge Parish School Board connected with the implementation of a consent decree between the School Board and the Department

1 Defendants are the East Baton Rouge Parish School Board, school board

members, Ingrid Kelley, Warren L. Pratt, Jr., Dr. Press L. Robinson, Sr., Jacqueline

Mims, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon

OKT. & ENJREBi~oux, Dalton Devall, William P. Black, and Human Resources Supervisor, James

i:

Manley:

G.'CJ).,A..L

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of Justice. Plaintiffs2 are sixteen women who have all been employed by the School Board in "Janitor I" positions. Plaintiffs essentially claim that they sought employment in the new "Janitor" positions created pursuant to the consent decree and that defendants discriminated against them on the basis of their gender and in retaliation for their having filed a prior state lawsuit alleging employment discrimination in janitor positions. More specifically, plaintiffs claim that defendants retaliated against them and discriminated against them by imposing a reading test and providing less hourly pay in the new "Janitor" positions.
The following facts (as taken from defendants' statement of uncontested facts) are undisputed: 1. "Plaintiffs herein are among those plaintiffs who filed lawsuit in June, 1993 against the East Baton Rouge Parish School Board in state court alleging a violation of state law for the reduction of their hours in violation of L.R.S. 17: 422.5, as well as employment discrimination on the basis of sex in violation of L.R.S. 23: 1006 and
. L.R.S. 51: 2231, et seq., Louisiana's anti-discrimination statutes." 2. "In April, 1997, a lawsuit was filed [by the United States Department of Justice in
this court] against the East Baton Rouge Parish School Board alleging discrimination in the hiring and promotion for Janitor II and Janitor III positions on the basis of sex
2 Plaintiffs are Dorothy Banks, Tina Brooks, Shirley Brown, Annette Gray, Mary
L. Holmes, Annie Johnson, Amy Lane, Rosa Malveau, Dorothy McPipe, Alma Newman,
Maggie Tucker, Bertha Twine, Berthella Wallace, Edna Welch, Mary Williams and Nellie Williams.
2

in violation of Title VII, 42 U.S.C. § 2000e, et seq." United States of America v. East
Baton Rouge Parish School Board, Civil Action No. 97-264-A. 3. "A settlement between the School Board and the Department of Justice was negotiated in the form of a consent decree." 4. "The consent decree was provisionally approved by [this court] on April 8, 1997, subject to a Fairness Hearing to consider any objections to the proposed decree." 5. "Pursuantto.Order of this Court, a copy of the Notice of Fairness Hearing, as well as the Court's Order scheduling the hearing for June 20, 1997, was mailed to all female janitors employed by the School Board or who had applied for employment in a janitorial position on or after January 1, 1986 until March 31,1997." 6. "The Notice of Fairness Hearing was also advertised in the local newspaper called the 'Advocate'." 7. "Plaintiffs herein were among the 2,336 people to whom the Notice of Fairness Hearing and Order were mailed as was required by this Court's order of April 8, 1997, and as was specifically provided in the injunctive provisions of the consent decree." 8. "Specifically, the consent decree stated that Janitor I 4-hour and Janitor I (12 month) positions were included within the coverage of the consent decree." 9. "The consent decree also provided that Janitor I employees were to be given an opportunity, by seniority, with a first right of refusal, to be employed in the new fulltime janitor position created pursuant to the consent decree."
3

10. "All of the named plaintiffs herein were among the list of 2,336 people to whom the Notice of Fairness Hearing and Order were mailed." 11. "Of the 2,336 notices mailed to persons potentially affected by the consent decree, 575 were returned to the post office, which number represented 490 actual persons as there were duplicate mailings to some persons on the list." 12. "None of the notices mailed to the plaintiffs herein were returned by the post office." 13. "Counsel for plaintiffs herein, Nancy Picard appeared at the June 20, 1997 Fairness Hearing on behalf ofthe named plaintiffs she represents in the state lawsuit against the School Board, which plaintiffs are among those named as parties to the instant lawsuit." 14. "Prior to appearing atthe hearing, Ms. Picard also filed objections to the consent decree on or about April 29, 1997." 15. "Following the Fairness Hearing, this Court approved the consent decree on June 20,1997." 16. "In the fall of 1997, plaintiffs herein were among those persons contacted by the Human Resources Department for the Maintenance Department ofthe School Board and directed to report to the School Board office, if they were interested in applying for the new Janitor position, to participate in testing designed to evaluate the applicant's qualifications for the new full-time Janitor position."
4

17. "Those persons who reported, including plaintiffs herein, except for Dorothy Banks, Amy Lane and Bertha Twine, were given a practical test to evaluate their skills in operating equipment and in performing certain required tasks of the job." 18. "Applicants were also tested on their ability to read at an eighth grade leveL" 19. "The consent decree approved by this Court in June, 1997, also provided that those applicants selected for possible employment in the new Janitor or Lead Janitor positions might be required by the School Board 'to pass additional lawful and jobrelated selection devices or requirements.'" 20. "On November 18, 1998, plaintiffs herein filed the instant lawsuit in the United States District Court for the Middle District of Louisiana, after having filed charges with the Equal Employment Opportunity Commission on behalf of themselves and others similarly situated, charging the School Board with discrimination against them on the basis of their sex, as well as retaliation for their being parties to the state lawsuit." I. Motion for Summary Judgment
Defendants move for summary judgment on the grounds that this lawsuit is an impermissible collateral attack upon employment practices implemented pursuant to the consent decree entered in Civil Action No. 97-264-A. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine
5

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law."3

The salient issue is whether the claims asserted by plaintiffs are barred by the

collateral attack prohibition of Title VII, 42 U.S.C. §2000e-2(n), which provides in

pertinent part:

(n) Resolution of challenges to employment practices

implementing litigated or consent judgments or orders

(1 )(A) Notwithstanding any other provision of law, and except as

provided in paragraph (2), an employment practice that implements and

is within the scope of a litigated or consent judgment or order that

resolves a claim of employment discrimination under the Constitution

or Federal civil rights laws may not be challenged under the

circumstances described in subparagraph (8).

(8) A practice described in subparagraph (A) may not be challenged

in a claim under the Constitution or Federal civil rights laws--

(i) by a person who, prior to the entry of the judgment or order

described in subparagraph (A), had--

(I) actual notice of the proposed judgment or order sufficient to

apprise such person that such judgment or order might adversely affect

the interests and legal rights of such person and that an opportunity

was available to present objections to such judgment or order by a

future date certain; and

(II) a reasonable opportunity to present objections to such judgment

or order...

*

*

*

(2) Nothing in this subsection shall be construed to--

*

*

*

(8) apply to the rights of parties to the action in which a litigated or

consent judgment or order was entered, or of members of a class

represented or sought to be represented in such action, or of members

of a group on whose behalf relief was sought in such action by the

Federal Government;

*

*

*

3 Fed. R. Civ. P. 56(c) 6

(D) authorize or permit the denial to any person of the due process of law required by the Constitution. Defendants contend that the claims made by plaintiffs are barred by subparagraph (n)(1). According to defendants, plaintiffs are challenging employment practices that "implement" and come "within the scope of ... a consent judgment... that resolves a claim of employment discrimination under. .. Federal civil rights laws". Defendants further contend that dismissal of the claims on this basis would comport with due process. Defendants argue that plaintiffs had notice of the consent decree sufficient to alert them that their interests might adversely be affected and that objections were actually filed on their behalf. In opposition, plaintiffs make a three-fold argument. First, plaintiffs contend that they do not contest an employment practice that implements a consent decree because the consent decree does not specifically call for a reading test or set the level of pay for the "Janitor" positions. Second, plaintiffs contend that the exception set forth in paragraph(n)(2)(8) applies because they were "members of a group on whose behalf relief was sought in such action by the Federal Government". Third, plaintiffs contend that, even if this action would be otherwise barred, the statute must be applied consistent with due process requirements as set forth in paragraph (n)(2)(D). Plaintiffs contend that they must be afforded an opportunity to be heard regarding practices that were established subsequent to the consent decree. In response to a notice to counsel, the United States (plaintiff in the consolidated action) has filed a brief expressing the view that this action is not
7

precluded by § 2000e-2(n) for two reasons. First, the government argues that plaintiffs are not challenging an employment practice that "implements" and is "within the scope of' the consent judgment. While the decree calls for the creation of the Janitor position, the government notes that it does not specifically provide the qualifications or level of pay. Moreover, the government argues that the challenged employment practices cannot be said to implement the consent decree if those actions violate Title VII. To the contrary, the consent decree expressly required the selection process to be conducted "in a lawful nondiscriminatory manner pursuant
to the requirements of Title VII. Exh. E, p. 8, ,-r 22. Secondly, the government
argues that plaintiffs did not receive sufficient notice that the consent decree might adversely affect them because the salary and job qualifications were not specified therein.
In its latest response, the School Board concedes that the specific qualifications and salary schedules were not set forth in the four corners of the consent decree. The School Board argues, however, that the qualifications and salary schedules were "an integral part of arriving at the terms of the consent decree and what was subsequently implemented."
Having carefully considered this matter, the court finds that § 2000e-2(n) does not bar this action for the reasons advanced by plaintiffs and the government. While the Janitor positions were created pursuant to the consent decree, there are no provisions setting forth the specific qualifications or salary for that position. The
8

parties to the consent decree generally agreed that the School Board would
establish the salary schedules for the Janitor and Lead Janitor positions. Exh. E, 1f
12. They further agreed that the School Board would conduct the selection process (which might include "additional lawful and job-related selection devices or
requirements) in a nondiscriminatory manner. Exh. E, 1f1f 6,22. Because there are
no provisions in the consent decree establishing a reading test or the level of pay, the challenged actions are not within the scope of the decree. See, Boston Police Superior Officers Federation v. City of Boston, 147 F.3d 13 (1st Cir. 1998).
The court further agrees that plaintiffs had insufficient notice for this action to be precluded under §2000e-2(n). Paragraph (n)(1 )(B)(i)(I) requires that prior to the entry of the consent judgment the plaintiff receive notice "sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order. .." Plaintiffs were not given notice of the specific manner by which the School Board would address the pay scale and qualifications for the Janitor positions. Consequently, they had no opportunity to make objections regarding the salary and the reading test.
Moreover, the legislative analysis of the bill that resulted in the amendment of Title VII to include §2000e-2(n) provides:
Under specified conditions, Section 11 of the bill would preclude certain challenges to employment practices specifically required by court orders orjudgments entered in Title VII cases. This Section would
9

bar such challenges by any person who was an employee, former employee, or applicant for employment during the notice period and who, prior to the entry of the judgment or order, received notice of the judgment in sufficient detail to apprise that person that the judgment or order would likely affect that person's interests and legal rights; of the . relief in the proposed judgment; that a reasonable opportunity was available to that person to challenge the judgment or order by future date certain; and that the person would likely be barred from challenging the proposed judgment after that date. The intent of this section is to protect valid decrees from subsequent attack by individuals who were fully apprised of their interest in litigation and given an opportunity to participate, but who declined that opportunity.
In particular, the phrase 'actual notice ... apprising such person that such judgment or order might adversely affect the interests and legal rights of such person,' means of course that the notice itself must make clear that potential adverse effect And this, in turn, means also that the discriminatory practice at issue must be clearly a part of the judgment or order. Otherwise, it cannot credibly be asserted that the potential plaintiff was given adequate notice. Thus, where it is only by later judicial gloss or by the earlier parties' implementation of the judgment or order that the allegedly discriminatory practice becomes clear, 8ection 11 would not bar a subsequent challenge. Moreover, the adverse effect on the person barred must be a likely or probable one, not a mere possibility. Otherwise, people would be encouraged to rush into court to defend against any remote risk to their rights, thus unnecessarily complicating litigation. Finally, the notice must include notice of the fact that the person must assert his or her rights or lose them. Oth.erwise, it will be insufficient to apprise the individual 'that such judgment or order might adversely affect' his or her interests. (Emphasis added.) 137 Congo Rec. 815472-01, 815477.
The court additionally agrees with plaintiffs that the proviso contained in
(n)(2)(B) would appear to be applicable on its face. The consent decree provided
injunctive relief in favor of Janitor I employees (which included the plaintiffs) by
giving them an opportunity, by seniority with a first right of refusal, to be employed
in the new full-time Janitor positions created pursuant to the consent decree.
. 10

Defendants offer no reason why plaintiffs should not be considered as "members of
a group on whose behalf relief was sought in such action by the Federal
Government."
Instead, defendants vaguely respond that if plaintiffs are members of such a
group then they are in "privity" with the federal government; and they are accordingly
precluded from collaterally attacking the consent decree. While defendants
apparently contend that either "claim preclusion" or "issue preclusion" applies,
defendants fail to show that the requisite elements for either have been met. As
previously noted, the consent decree did not establish the qualifications or the salary
for the Janitor positions.4 The claims asserted here had not even accrued at the
time the consent decree was entered. Consequently, the issues to be decided in
this case were neither litigated nor resolved by the consent decree. Neither claim
4 Res judicata or claim preclusion bars the litigation of claims that either have been litigated or should have been raised in an earlier suit. The four elements of claim preclusion are: (1) The parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded to a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions. In re Southmark Corp., 163 F.3d 925 (5th Cir.1999).
Collateral estoppel (or issue preclusion) has three elements: (1) the issue at stake must be identical to the one involved in the prior action; (2) the issue must have been actually litigated in the prior action; and (3) the determination of the issue in the prior action must have been a necessary part of the judgment in that earlier action. However, issue preclusion differs from claim preclusion because issue preclusion does not always require complete identity of the parties. Next Level Communications LP v. DSC Communications Corp., --- F.3d ----, 1999 WL 409645 (5th Cir. Jun 21,1999) (NO. 98-40682).
11

preclusion nor issue preclusion has any application under the circumstances. See, Barfus v. City of Miami, 936 F.2d 1182 (11th Gir. 1991). II. Motion to Dismiss
Defendants move to dismiss the § 1983 claims on the grounds that plaintiffs fail to allege a separate constitutional or statutory basis apart from Title VII. This argument clearly lacks merit. Plaintiffs have alleged sexual discrimination, which is a violation of the Fourteenth Amendment. Plaintiffs may bring claims under both §1983 and Title VII. See, Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539 (5th Gir. 1997).
The School Board and the individual defendants in their official capacities further contend that they are entitled to qualified immunity because plaintiffs have failed to allege that their constitutional rights were violated through the execution of an official policy or custom of the School Board. In this instance, "official policy" would include a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the School Board ... or by an official to whom the School Board has delegated policy-making authority. See, Eugene v. Alief Independent School Dist., 65 F.3d 1299 (5th Gir. 1995), cert. denied, 517 U.S. 1191, 116 S.Gt. 1680, 134 L.Ed.2d 782 (1996).
In their complaint, plaintiffs allege that the members of the school board: "... established the conditions, qualifications and job description for a full-time janitorial position with the intent to retaliate against female employees who had filed a lawsuit with the School Board; alternatively,
12

the conditions that they placed on this new position had a discriminatory impact on the plaintiffs." The court concludes that this is sufficient (albeit barely) to allege that the constitutional violations were the result of an official policy of the school board. While the individual defendants, including James Manley, contend that they have been sued in their official capacities, plaintiffs fail to specify whether the defendants are sued in their individual or official capacities. Since the School Board has been made a defendant, the court will assume that the individual defendants are sued only in their individual capacities. Finally, the individual defendants (including James Manley) argue that they are immune from individual liability because plaintiffs have not actually asserted any violation of their constitutional rights. However, as noted previously, plaintiffs have alleged sexual discrimination, which is a violation of the Fourteenth Amendment. The court finds that this argument lacks merit. Accordingly, the motion by defendants (doc. no. 15) for summary judgment is hereby DENIED and the motion by defendants to dismiss count III (doc. no 5) is
13

hereby DENIED. In view of the government's response that it is monitoring the proceedings in Civil Action No. 98-974-A, the court will vacate the prior order consolidating these two matters.
Baton Rouge, Louisiana, July 30,1999.
14

 
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o-,'"·'",,~I:Jtr:J.iT~',':1€;:"(~J~":'l!;~J<;';'~~~rl"i,CIVIL ~: -_ ~i~:"1~~'~14:.· -:=-;l:,~t':~t~,:~~: ~ ~ "~~ ~~~: ~;~: :~' ~,.I'

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VERSUS

, "',,' ; "',;,\', ",.~:' NO. 98-~74-A

EAST BATON R(jUGE'PA~rSH '

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SCHOOL BOARD:"ET"AL,,,,c"""',,-,,,'~,,,,,,,,:e, >"".""..,.....,"." "!'"~.,., '_~'r',

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RbLlN~aj;M~~b~d~r~; JO~~~Nt

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This matter ,is before the court on molIOnbf aefendant East Baton Rouge

Boardf9~'$S~n;~;~;5~G,a~~t~~i'(B~~~:~~ib·.c~~~r" Parish School

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'There is no need for

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oral argument.

P.lain~t>If"f.;s--

have
~-;-'fJ

filed a memorandum

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In

oppositIon.

This court has

jurisdictionpursu~nr~o 28\1.S~C. §~1~~31~~'~""''"' ,; "" cC..

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Plaintiff~ 'Si~t~~r1 'lfo-rJle~'lq~~~)f~':~~'~Z;~~i&~rTI~f~Y~da~ •

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are

janitors by the

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East Baton Rougep~rish-§~hooi Bci~~H(((~:~h~~fB6~~cf1~"P~r6r\~ 1992, the School

, ':!••~,_, ':;:,; '~;,: "~~i~J!;:~~j';~i1~~;,~~t:~~~i~~~:r\~ ,~~::.:":' : ,

Board employed janitors In three dIfferent designations. These jobs were titled

,

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janitor I, janitor II, and:janHo"r' HI. 'ffie)ariitorl "posltiorl"fnvolved employment for six

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hours a day dUrIng mne fllonths of the year. Most of the jamtor I positions were filled

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DKT. & E~,tYl'r8Ie employees. Thp~1 position involved work essentially 'dentical< o.

(dsio ~~~A-nA . DATE NOTICE MAILED

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W~; -&-- o./J

INITIALS
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DOCKET#
qr

DATE ' BvhL ~ ~lJfl'\P<loY\

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that performed by janitors I, with the addition of traditionally "male" duties, such as

ou~~sid~"ch6r~s.'~~'~Jkr~ft6:/11;~~~'it'6n ~as ~~ ,

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lawn care and other

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'T"'ifl!:~l1i1lWj"",~,:,::,:~~~:"""

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eight hour a day,

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year round position. Most of the ja'nitor 11 pOsitio'ns were filTed by males. The janitor
" :': ' "~t~ '",c"i"" ",',,",' .

III designatian was a full time pasltion entaning wark identical to' the ather twa
>< : : ' " , ,'" ~,' : :, ,,"';n:£ll:f,~1ti~j;~f~~!,' :;~:'~, .:~,

positions, with the addition of some supervisory functions, such as locking up the

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buildings, and supervising late c1eamng crews.

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Plaintiffs were employed in the jamtor I position. In June of 1992, the School

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Board

decided

to'

cutth~

i
:h6urs

oft6~11~~\f~lJ~f6:*;~~~ix~haurs

a

week,

to'

faur.

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Some benefits were also' eliminated: -" 'In c·June 0("1993'," 46 female janitorial

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employees, including the '~~I~i~fiffs" *r~~t suirag~in~f'the ~ School Board in the

Nineteenth JUdicial'Distri'ct'toG<rt,:p~;t~lbV-~~ii~Jib~~~ug:e. ~the suit alleged that

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the reduction in hours. and~~ri~fits l]~~!~r~r~~~1&p~6~;~'te'm~le employees in

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-= .• l~""'~"""r-"~~'~'''''t _, ,..a..;:G'''t,~kr:~•.:,~~, - _._.. , • ,. ,

violation of La. R.$. 51 :223( ~fseq.:'atJ;~fi~~c-'i~te~hfi~nardisc~l~ination in violation

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of La. R.S. 23:1006. ThiS I?wsuitis stm,pendlng.
, ,. ," ,. ',: ' .,',' ",t'~1u'":;,,: ~;~/~"" :" :~; , "

Shortly after the filing 'of fhe state 'call i"f'lawsU'f( "the United States Department

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of Justice began an in~uiry'f;;io clhe'~fFt~§~~~~~6¥i2~~~rth~'S6hoor Board with regard

,

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to the placement of w,omen in the jan'"itror" II and,,I:II "p, . ositions.

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In 1996, the School ~9ard b~Qan evaluati~gall posltlons,within the district with

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an eye toward eliminating jineffldemt use orresou'rces. Pursu'ant to this effort, it was

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lq"'~~';:~_':f:~o~"'<;" .' ~::: .',

decided that the three-tiered jamtor po~itlon would be eliminated, and replaced with

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two new positions, janitor, and 'lead"j'a

Cthe';j~nf(o}' po'sition wauld correspond

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, lead Jariitor position would be the

equivalent of the old j~nlfor'~~i;' ~ias~· on. g~i;P;iitib~s ~~~e to b'e full time jobs,

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with medical benefits. The' School Bo5r~rdedd;d 'th~cifp'resent janitorial employees

'appl~~fgrtll'~ri~~~~l~f{)g~"~~6btfd;ke~p fh~l~ who did not wish to

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old jobs.

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The School Board 'a:!so stales lhafit'haa"'defermined that its janitors were

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Ti~;:-ii:~;:~:.:~':~t~i\~.~~;'?:;:~-:--

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overpaid, through referencEtto;[our~tana Depa'rtm~nroft~bbr statistics for average

salaries in the region. AccordinglY, thJ~c~~6/~6aVd'~~ange~'the pay scale system

~

Oft "_ .~"/~: -.:; :··"!/~~_< ~~~t"~tr:1' ,,;~~: :f,~~~t::~t{':t,;-:,{;~.~:-t":L :~~":_~<: ::T-" ':

for janitors, which resulted In lower''floUrly~pai 'A'testing' procedure was put into

'~~V/j~'~it~~1r~d;:fff~ns,:iA~~li2~~t~\~~re , •

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place for applicants to"the

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required to take

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a "practical" test, in~olvi~g\he::~s~ 'gfffi~-t~t~~~~6~ieqHj~~fu~ht, 'and a reading test.

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Applicants for the new leaa Janitor position were nof required to fake these tests.

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The reading require~ent was"i~;'pl~mente'af~llowing an incident in which at

' : .:~~., ,< ':, ~~ ~"""H~1~r',!.::~~1».;,~"~~~;:~:~.~',, -.~ - :':"'~--~--: .
least one School Board Em~'ployee wa'{s'fck~hed~cM~:t6a!~u~todi;ari's failure to follow
" ": ':' .;,:~ -,:' ,~/d(Hi{:0'c't~~(;:":~-':'~"~'.~' ,
printed instructions on the use of a pesticide. The School Board states that it

conducted an'inve~tigati~~~ {ri~~\he re~~in~;'a6~~:~:~rft~'j~'ii'ito';i~1 employees, which

-

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revealed that many of themwere'i"ft~~~te,.c')~h'e' School Board felt that safety

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concerns demanded th~tii~i'n~w ja~rtg;~:f~~karl~~~f~tth~Ceigh~h grade level. The

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ofth:eg6;~p~~i;~h~(~~t~f~aha~~'~rth~Adrninistration th~tifiis i~acJin~;:r~t~rwas'~:et~rrilf~~d bas~a School Board states ,- ::' \f·~t'o.

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upon the fact that

the safety guidelines

(OSHA)

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<" were written on th,e ei9.hth:':gra~le'ieJe:t~s were 'm~~{MateriaISafety Data Sheets.

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'<:'7>~~' ~f:l

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to Applicants for the new le~d j~_nit~r~~~,~~16n ~~r~~not~Lbj~cied the reading test.

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The School Board's plan for the new jamtor positions was incorporated into

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," , a consent decree between the School Board and the U.S. Department of Justice in
, " ,, L.;::' ,-; ::;"~<,;~:~

June, 1997. The reading requirement' was nofs'peclfi'callymade a part of the

,

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, ,': " "F".> consent decree, although the decree did stafetharTa]ppl1cants selected for possible
" ' :,"'~:):\t,~~:-:,

employment as Janitors or Lead Janitors maV be required by the School Board to

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pass additional lawful and job-related selection devices or requirement." Consent

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Decree (defendants' Exhibit H), p. 8.

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In

the

fall

of

1997,,

the

plain"tif"fs'i~wI:e1r'e;

contacted
~.~~" ~f~",,' • '. ~ -- ~

by
,- -

the
"

office

of

Mr.

James

Manley, Personnel Supervisorforthe M~int~nan8~ 6ep~'rtment ofthe School Board,

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regarding their interest in applying for the new janitor position. While all of the

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plaintiffs passed the practical test, ali but orie falled the reading test. The plaintiffs
h. ':.'. j l~ ~, ~-~~3:~~j7: .~, ,r.,;.
of who failed the reading 'test weregive~' theto"pt'ib'n remaining in their old janitor I

, ',; ".>Hr;;:,:<:'::)'" _.

jobs, or taking the new janitor position on a probationary basis. Attendance at adult

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reading classes at night was a condition of this probation. Those accepting the

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probationary position woulcfbe' paid at'the rowest step In the new pay scheme until

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such

time

as

they"

~ere abr~to
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satisf/111eJlr~~arngCreq~iremerit.

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At that point, they

would be moved up the salary scale to 'i~fl~~tfhe p~sitr6n on the scale that they had

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occupied in their ol?, janitor I jobs.

The plaintiffs state that Mr: Manlley' ga~~ c6nfllcting information regarding the

.

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consequences of failing the reading test, and accepting the probationary janitor
' . , , ,I ~~.:: ': <~ :, ~," ".:, '.: . .

position. According to the plaintiffs, some were told that if they failed the reading test

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a

second

time,

that

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they would

De

termi; ~:a:'{ed' :'-" ,b":tfi;e' ,r' ~"

~ere

-
told

by

Manley

that

he

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did not know what would happen to them if they failed to pass the reading test. The

_ , , , " , '. '1 ;: ; \c· ... ,L,'L, , ' "
plaintiffs state that all were told that if they decided to take the new janitor position

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not on a probationary basis, tnat they could returrl"to their old janitor I positions. The

.

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plaintiffs also state that they were told that remaitiing in their'current positions while

an preparing to 'retake the reading test w~'~ n:6f option': .'

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The plaintiffs filed suit in this court In November, '1998, claiming unlawful

-

,

retaliation and disparate impact und~'rTitle vlI.F>r~intiffs aUege that the School

,

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I

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Board established the conditions, quaTIrtcatlons, ancfJoh description for the new full

~ ,

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time janitor posi~ion with theintenf to"1ef~ltaie"ag;ai~~t'them :fo~ their participation in

,

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the earlier state court discrimination suit.' Alternatively, the" plaintiffs claim that the

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condition placed on the new janitor p'osifion, speCIfically "the reading requirement,

emip16t~es. had a disparate impact on'female

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.$urriniary'-'judgmentFacts' ,

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Defendants have submitted a ~taferrtent' ofunconf~sted facts in support of

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their motion for summary judgment, in accordance with Local Rule 56.1. The

" ",-' . ~ -
of plaintiffs have responded, admitting some the~~ f~cts,' and denying others. For

>~ ,.~.,

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the purpose of this court's decision on the Instant motion, the following material facts

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are admitted:

,

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5. Plaintiffs herein are among thosk ptafntiffs who' filed a lawsuit in June, 1993

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.

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against the East Baton Rouge Parish School Board in state court alleging a violation

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. . ' . : . -,.' - . . ' . . , of state law for the reduction of their hours in violation of L.R.S. 17:422.5, as well as J~i,~ :J~,'·L,:~· '/"~:,:.',

employment discrimination on the basis of sex in violation of L.R.S. 23:1006 and
" " _ 1',3i i<·~·, ,_' :~,. " . '

L.R.S. 51 :2231, et. seq., Louisiana's anti-discrimination statutes.

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14. In April, 1997, a laWSUit was filed against the East Baton Rouge Parish School

,

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Board alleging discrimination in thehiring and promotion for Janitor II and Janitor III

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positions on the basis of sex in violation of Title VII, 42 U.S.C. §2000e, et. seq., by

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the United States Department of Justibe.

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15. A settlement between the School Board and the Department of Justice was

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negotiated in the form of a consent decree..

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16. The consent decree also required that the part-time Janitor I's would be given

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,

the opportunity to apply for the new J~nitd~ position if they met the qualifications.

. , - I' . ., " " ~,- ': - . .

,

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19.

Beginning

in

approximately

1996,

.t,,-he

Schoor

Board,

through .

its then Associate

"

i " '.

,.,. c-"

.

Superintendent for Human Resources and'instrudion, Christine (Chris) Arab, began

,

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,

evaluating all school system poslti~~:~,,: i~c1uding' job descriptions and salary

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schedules, in an attempt to pinpoint t1ho:s:e .depaffm- ents within the school system

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which were operating inefficiently. ..

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20. The goal of this study was to illuminate areas in which the school system could

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save money and then use the funds for its instructional services.

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. -.'.r,· 21. All janitor and custodian classifications were'induded in this study.

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29. An incident occurred where a custjdi~h\mpro"p~rIY used a chemicar to eliminate

.

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. ", ..... ": ':" . . ants from an office complex, causing at least one of its employees to require medical

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attention.

30. Upon questioning the 'custodian i~J~IV~cj, ~~r: James Br~ussard, fo'~mer Risk

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Managerforthe School Board, concluded thaffhe employee involved could not read.

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31.

Mr.

Broussard

cond~ uc~ te"d

an .in'formL' a7l.:s<u~rv:e~jy

among • ~.

the'custodian

~

",

supervisors

and principals of schools ~egarding th~ perceived literacy"problem among custodial

~
and janitorial staff.

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. i' ',!:; " :',

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33. Mr. Broussard believed that the safety guidelinesof OSHA were written at an

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eighth grade reading level. ~

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c.

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,

34. Following this investigation, Mr. Broussard recommended to Mrs. Arab, his

. / : ; : '. , ~ . ~ ~

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'

supervisor, that a reading requirementbe placed into the job descriptions of the

,

; ',' -, 5 . ' ." . fr ~;~ ~-1 ~ ~~.: ;~_

~~~,: ~ ~-.~ .! _,,: _ ,., _ -

",

.' .' ' !: :., . . : ' .. janitorial and custodial staff to avoidffutu're 'h,ddents"whereby persons could be

~.

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injured due to an employee's inability to read and follow the directions provided on

,

. . ~~, ~ ., ..:,+~':~ i' .> .~'"., _~': '. '

the chemicals used in everyday cleaning of the schools in the system.

" . 1 ". ; ''';~',,':'. '" ~
37. In the fall of 1997, plai~tlffs herein'were among tho'5e persons contacted by the

.

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Human Resources Department for the Physical Plant SerVices department of the

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School Board and directed'to 'report tb hl'e Mainten~nceoffice compfex to participate

. '.

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in testing designed to evaluate the applicant's qualificatioris for the new full-time

.

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Janitor position.

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38. The Janitor I's were given the loption of 'choosing to go forward with the

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application process or to remain in fheir position as Janitor I.

i, "

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39. Those persons who reported, inI~lud' fng piaIrififfs herein; except for Dorothy

1 - j-

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Banks, Amy Lane, and Bertha Twine, :we~e 'give'n a practical test to evaluate their

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skills in operating equipment and in performing certain required tasks of the job.

T'

,

40. The practical test evaluated an individual's ability to operate a lawn mower, a

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, r' weed-eater, a floor buffing/cleaning machine, to climb ladders safely, to change light

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bulbs in the flourescent lighting fixtures'in the schools, fo change air conditioning

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filters, etc.

, ,

1.

41. Plaintiffs were also subjected to a' writte'n Test of Adult Basic Education.

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44. The requirement of an ability to r~ad at an eig'hth grade level was included on

1

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the job description for the new Janitor 'po~ition.

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45. It was also provided in t~e ConsenfDecree approved by the court in June, 1997

that those applicants selected for pos~il)le emp'loyment in the new Janitor or Lead

1,

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Janitor pOSitions might be required by'the School Board "to' pass additional lawful

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and job-related selection devices or requirements."

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56. Some plaintiffs who participated in the testing were contacted by Mr. James

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....

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Manley to discuss their performance ~n the tests. "

I .I

57. All plaintiffs passed the practical tkst, but only' one plaintiff scored at an eighth

? "

'

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.

grade reading equivalency on the Test of Adult Basic Education.

i ..

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;

58. Even though most of the plaintiffs ~iQ not' meet the reading requirement for the
. ' " .::i;~ilftL ,,':~, .
job, they were given the option of remaining in their Janitor I positions or taking the
. :.: l j -~.' :,~\;fr :

new position on a probationary basls, even if their reading level was at the

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-

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•

-'.

•

kindergarten level. At suchfime'as they reached an eighth grade reading level, each

, , : " , t,2~)~>~~ .;~;"~<":,',,:':-

plaintiff would be eligible for permanent status in that position.

199ri~ Ik~j:iiri ;fil~d~th~ _ - 69. On November 18,

p'laintiffs

instanf lawsuit in the United

r:~~i J1:~\'~~::-<~;~"-' ':'J:.1" <",-,~~.~

States District Court for'the Middle Di~trict'ofLgtji~i~~~, after having filed charges

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J~-~~,!-c~'

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<', with the Equal Employment Opportunity Commission on behalf of themselves and

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'''',~ ,;~>';'~: <~ "'~ .'~ ',.r

-:' 'r-:; , others similarly situated, charging the School Board with discrimination against them
i " ,'". ': :~_", ~';.f: '<, , ,l,~,

on the basis of their sex, as well as retaliation for their being parties to the state

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lawsuit.

, '

establish1~~~t 70. Plaintiffs alleged that the

of the' conditions, qualifications and job

,

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description for the new full-time jani~or position, including the requirement that

applicants pass both the practical and reading t~sts' before 'becoming eligible for

,

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employment in the position, was doneby the defendants "with the intent to retaliate

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against female employees who had filed a lawsuit with the School Board [or]

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alternatively, the conditions that [the defendants] placed on this new position had a

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discriminatory impact on the plaintiffs.;'

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.I?

A. Retaliation under Title VII

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DI~cu~sion

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The plaintiffs claim that the Scho:ol Board e'stablished the new janitor position,

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with its attendant requirements, with ihtent to' retaIiate~against them for their state - ~ t; - ' ,

court discrimination suit, in violation of Title VII '§764(a), as amended, 42 U.S.C.A.

I,'

..

§ 2000e-3(a).

_ '_

1 ~<;: ;" ~ _ " '. ~_ ~

_

Title VII provides that "[i]t shall be an unlawful employment practice for an

-.

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employer to discriminate against any 6f his e_mployees... becau~e he has opposed

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any practice made an unlawful employrnentpractice bythis subchapter, or because
,

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he has made a charge, testified, assisted, or participated in any manner in an

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investigation, proceeding, or hearing under this subchapter. 42 U.S.C.A. § 2000e-

3(a).

In

order

to

state

a

prima

facie

r~taliation

,

.

c1ai'm'.

under

Title

VII,

a

plaintiff

must

show three elements. First, that he qr sh~ engaged in an activity protected from

, , I "",: ,..';, , "

,

retaliation under Title VII. Second, that he or she was subjected to an adverse

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employment action. Third, the plaintiff must show a causal connection between the

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protected activity, and the alleged retafiatory action. Shirl'ey v. Chrysler First, Inc.,

l'

.".,,; ..

970 F.2d 39, 42 (5th Cir.1992); Maybe~ryv.\f~ughtAircraft Co., 55 F.3d 1086 (5th
, ' " J '; , ' ' "

Cir. 1995).

t ••-

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_

The defendants do not dispute the fact that participation in a lawsuit alleging

discrimination is a protected activity Jnder Title VI'I. 'The'School Board, however,
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disputes the remaining two element~,' arguing that' there was no adverse

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employment action taken against the~ plaintiffs, and even if there was, no causal

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connection can be established betw, eeLn' ':,s":pc,'h, ac'tjq,n,," a'nd the' pr,otected activity.

.

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The plaintiffs characterize the a~verse employment action in this case as "a
.,

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bogus reading prerequisite establish~d 'to hlock (the plaintiffs') promotion to a full

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time position." Plaintiffs' Memorandum in Opposition to Defendants' Motion for

,

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Summary Judgment, p. 15. The plaintiffs argue that the School Board's actions left

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them

confronted

with
.

the

choice

- ,,- of ,,ac~ c,, e,p-'t~in. g ~ ,~ l:~

a the ' .

new janitor
., ,

position

on

a

probationary basis, with the attendant burdens of adult reading classes and ongoing

.,

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uncertainty about their emplo"yment fut!u' r,es if the'y:.failed .to'pa"s"s the reading test, or

,

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remaining in their janitor I positions with no benefits, and no hope of promotion.

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The meaning of "adverse empJoyme-nt action" has been clarified by Fifth

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Circuit case law. In Dollis v. Rubin, 7~,~:~d 711' (~~n Cir.19~5), the court stated that

•

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"Title VII was designed to address ultimate employment decisions, not to address

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every decision made by employe.rs that 'arguably might have some tangential effect

,f-"

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-

upon those ultimate decisions."
,

Id a't781-82.

. :... ' - '

'

Ultim~te

- "-

-,::-

employment

decisions

; ' J . ,'.

-

include

actions

such

as. "hiring,

g~ ra!n- tin!g'--

-

leave, -

,

discharging,

--

•

promoting,

and

compensating." Id. at 782. (Citing Page v. aolg~r, 64-5 F.2d 227, 233 (4th Cir.)(en

. i

: -

banc), cer!. denied, 454 U.S. 892, 102S.Ct. 388, 70 LEd.2d 206 (1981 )); Mattern

,

~

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-'-_

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v.

Eastman

Kodak Company,

~

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104 F:jd't02

;

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(5th

Ci~: -

"
1i:9:r--97).

Thus,

actions taken

by

~' ,,:'

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an employer that fail to rise to the lever of "ultimate employment decisions" are not

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"adverse employment actions" within the meaning of Title VII.

i

.

The defendants argue that this standard precludes a finding that their decision

! -

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to implement the new janitor position, with its attendant reading requirement,

constituted an adverse employment d~·cision within the meaning of Title VII. The

, ,~
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-

School Board points to the fact that th.,e plaintiffs ..J.vere allowed the choice to keep '

..

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their janitor I jobs, or to apply for the n~w janitor position, and argues that whether

i

or not the plaintiffs passed the reading'test did not affect their status as employees

"

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fo the School Board.

The only category of actions chect in Dailis to which the School Board's

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decision to implement the new janitor' position with its reading requirement might

I :. ,
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correspond is "promotion." Thus, it cou~d be argued that the School Board's decision

'. ,

•

I

effectively denied the plaintiffs a promotion, which could constitute an ultimate

employment decision. The move fromjanitor I to the new janitor position, however,

was not a part of any internal ordered'scheme of promotion to which the plaintiffs
!:
were entitled, either from years of se~ice; or job performance. Instead, the janitor

position was a new job, for which the pl~intiffs were given a right of first refusal

i'

before the position was offered to the public. Given this fact, and given the j-

I

additional fact that the plaintiffs had th'e choice of staying where they were with no

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,

adverse consequences, this court finds that implementation of the new janitor

: "i

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position was not an ultimate employment decisi6n.

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., . ' . , ,,--, -: ,,'.' -. ': . Accordingly, the plaintiffs have failed to state'a prima facie case of retaliation

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under Title VII. The defendants are ert~tl~dtQ?,~mlT!,~ry judgment on this issue.

, j" '"

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B. Disparate Impact

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In the alternative, the plaintiffs argue that the reading requirement had a

_

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disparate

impact

o-n

female,"

emp-loyees"t:w:i.,t;,h:,>in';:'.t. he",~m, "e"'a~ ni'-n, -g.'

of Title '~,

VII.

The plaintiffs

i. contend that they were the only Scho~I' aoard e'n,'pioyees impacted by the reading

"

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'

requirement, as they were the only current employees interested in moving into the

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ne

w

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position,

1
whose',a,d'di.tiona-l,',hf,o'f..u:r;s

,:, :,', ' ) ""',. '.,~' ,
and benefits

con~tituted

r": 'i'~:,'"

"

a

promotion

for

them. Current janitors II, by contrast, c9,yl~ siJl)plychoose to remain in their full time

-, ;,

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. _' " '> ><:', > janitor II positions, or apply for lead'-j~~itor positions, thereby circumventing the

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reading requirement.

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, . - -'- ",:', In order to establish a claim of cUsparate impact employment discrimination, .'~, F~~~-~- '>~' ',~\ ~ ~, ~~, '0 >'~ ~ - ,> ,~.

a class of plaintiffs ,must s"h,ow' thata,''fa~'1d~ "a:;f:ly ,n"eu.t;r.,a:l e"mp"lo,ym"e' nt:pr'actice results in

I '" ",." .

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a significantly adverse impact on a protected class. Griggs v. Duke Power

."

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-

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Company, 401 U.S. 424, 91 S.Ct. 84~".28 L.,~q.29 158 (19Z1).

" . " ': '" " ~. ':~:':;L,~,', ",: ''",i': .' ,

The

facts

of this

case,

howeverl -

do not
l ' -,'

reagily

-

,r

lend

themselves -"

to

analysis

1

under a disparate impact theory. The disparate impact theory is usually applied to

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show

that

an

employment
-

p ~

ract

ic" e~r' es,-u,lt':s'

in a sexual

- - ."~:

-

"

or racial

: ..., ,

, ',

disparity

in

the

1 ~ :'

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workforce. The plaintiffs complain of the fact th.at the reading test was applied to
. , 1-'-;:."'i,- . ·/:r::'J' ..

them, while mostly male janitor II e,mployees could avoid the test, either by

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oLby ..

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remaining in their janitor If positions,

applying for lead janitor positions, for

, ~ '.lt~jJl·'

which no reading test was mandated. ~ ,~ ._
_ ", ,I' 'Ui!}tJ',

"' ' . ~

In Pouncy v. Prudential Insurance Company of America, 688 F.2d 795 (5th

i

-

, ":

Cir. 1982), the court stated that "[t]he disparate i'mpact model applies only when an

!. ~

a employer has instituted
, ";;. .(" ~

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,

specific procedure, '~, usually a selection criterion for

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employment, that can be shown to have a causal connection to a class based

-_

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imbalance in the workforce." Id. at 800. Later In the opinion, the court again

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stressed that "the disparate impact model requires proof of a causal connection

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.

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between a challenged employment practice and the composition of the workforce."

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Id. at 801.

The plaintiffs have failed to show that the reading requirement resulted in a

, 1i

sex based imbalance in the School Board's workforce. the fact that the institution

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of this requirement fell totally on part timI e fe. mal.e,janitorial employees may reflect a

pre-existing imbalance resulting from other factors, but the disparate impact theory
j
properly focuses on results.

Accordingly, the defendants' M6ti~n for Summary Judgment (Doc. No. 73) is

-

1', '

"

L, .
hereby GRANTED and this action sh~il be dismissed.

Baton Rouge, Loui~iana, June 5,2001.

-" !
H V. PARKER, - NIj ED STATES DISTRICT JUDGE
ODLE DISTRICT OF LOUISIANA

.. 14
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

'FILED U.S. DIST COURT MIDDLE 015T. OF LA
a 2001 DEC I 2 P ij: 5

DOROTHY BANKS, ET AL
VERSUS
EAST BATON ROUGE PARISH SCHOOL BOARD, ET AL

SiG~~
.BY DEPUTY CLERK
CIVIL ACTION
NO. 98-974-A

RULING

Subsequent to granting a motion for summary judgment upon all of the

claims of plaintiffs under Title VII, 42 U.S.C. §2000e, et seq. (doc. 97), the court

informed the parties that it was considering the propriety of granting summary

judgment sua sponte on the remaining claims of plaintiffs under 42 U.S.C. §1983

(doc. 99) and invited both sides to submit briefs on that issue. Both sides have

responded and the court has carefully reviewed the matter.

The court is now convinced that the same undisputed material facts that

mandated dismissal of the Title VII claim also mandate dismissal of the §1983

claims.

There is no need for oral argument.

Facts and Procedure History

Plaintiffs are sixteen women formerly or currently employed as janitors by the

DK! i~~Rouge Parish School Board ("School Board"). Prior to 1992, the S_cho.ol~ # \1

P a(0\ DATE' .-~' ·.·-~;-i·: " \

JV R'~

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INITIALS DOCKET ='

PH- \fJ \Le5 lVLowq:1&~)v ~ ~ olx. NOTICE AIL DTO:

1\

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DAtE .. BY~ .~---

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IL=I=dk=====

Board employed janitors in three different designations. These jobs were titled janitor I, janitor II, and janitor III. The janitor I position involved employment for six hours a day during nine months of the year. Most of the janitor I positions were filled by female employees. The janitor II position involved work essentially identical to that performed by janitors I, with the addition of traditionally "male" duties, such as law care and other outside chores. The janitor II position was an eight hour a date, year round position. Most of the janitor II positions were filled by males. The janitor II designation was a full time position entailing work identical to the other two positions, with the addition of some supervisory functions, such as locking up the buildings, and supervising late cleaning crews.
Plaintiffs were employed in the janitor I position. In June of 1992, the School Board decided to cut the hours of the janitor I job from six hours a week, to four. Some benefits were also eliminated. In June of 1993. 46 female janitorial employees, including the plaintiffs, filed suit against the School Board in the 19th Judicial District Court, Parish of East Baton Rouge. The suit alleged that the reduction in hours and benefits had a disparate impact on female employees in violation of La. R.S. 51 :2231, et seq., as well as intentional discrimination in violation of La. R.S. 23:1006. The lawsuit is still pending.
For purposes of this issue before the court, the following material facts (which are the same undisputed facts in the court's prior ruling [doc. 97]) are admitted.
2

5. Plaintiffs herein are among those plaintiffs who filed a lawsuit in June, 1993 against the East Baton Rouge Parish School Board in state court alleging a violation of state law for the reduction of their hours in violation of L.R.S. 17:422.5, as well as employment discrimination on the basis of sex in violation of L.R.S. 23:1006 and L.R.S. 51 :2231, et. seq., Louisiana's anti-discrimination statutes. 14. In April, 1997, a lawsuit was filed against the East Baton Rouge Parish School Board alleging discrimination in the hiring and promotion for Janitor II and Janitor III positions on the basis of sex in violation of Title VII, 42 U.S.C. §2000e, et. seq., by the United States Department of Justice. 15. A settlement between the School Board and the Department of Justice was negotiated in the form of a consent decree. 16. The consent decree also required that the part-time Janitor I's would be given the opportunity to apply for the new Janitor position if they met the qualifications. 19. Beginning in approximately 1996, the School Board, through its then Associate Superintendent for Human Resources and Instruction, Christine (Chris) Arab, began evaluating all school system positions, including job descriptions and salary schedules, in an attempt to pinpoint those departments within the school system which were operating inefficiently. 20. The goal of this study was to illuminate areas in which the school system could save money and then use the funds for its instructional services. 21. All janitor and custodian classifications were included in this study.
3

29. An incident occurred where a custodian improperly used a chemical to eliminate ants from an office complex, causing at least one of its employees to require medical attention. 30. Upon questioning the custodian involved, Mr. James Broussard, former Risk Manager for the School Board, concluded that the employee involved could not read. 31. Mr. Broussard condu~ted an informal survey among the custodian supervisors and principals of schools regarding the perceived literacy problem among custodial and janitorial staff. 33. Mr. Broussard believed that the safety guidelines of OSHA were written at an eighth grade reading level. 34. Following this investigation, Mr. Broussard recommended to Mrs. Arab, his supervisor, that a reading requirement be placed into the job descriptions of the janitorial and custodial staff to avoid future incidents whereby persons could be injured due to an employee's inability to read and follow the directions provided on the chemicals used in everyday cleaning of the schools in the system. 37. In the fall of 1997, plaintiffs herein were among those persons contacted by the Human Resources Department for the Physical Plant Services department of the School Board and directed to report to the Maintenance office complex to participate in testing designed to evaluate the applicant's qualifications for the new full-time Janitor position.
4

------------

~---~

38. The Janitor I's were given the option of choosing to go forward with the application process or to remain in their position as a Janitor I. 39. Those persons who reported, including plaintiffs herein, except for Dorothy Banks, Amy Lane, and Bertha Twine, were given a practical test to evaluate their skills in operating equipment and in performing certain required tasks of the job. 40. The practical test evaluated an individual's ability to operate a lawn mower, a
weed-eater, a floor buffing/cleaning machine, to climb ladders safely, tq change
light bulbs in the flourescent lighting fixtures in the schools, to change air conditioning filters, etc. 41. Plaintiffs were also subjected to a written Test of Adult Basic Education. 44. The requirement of an ability to read at an eighth grade level was included on the job description for the new Janitor position. 45. It was also provided in the Consent Decree approved by the court in June, 1997 that those applicants selected for possible employment in the new Janitor or Lead Janitor positions might be required by the School Board "to pass additional lawful and job-related selection devices or requirements." 56. Some plaintiffs who participated in the testing were contacted by Mr. James Manley to discuss their performance on the tests. 57. All plaintiffs passed the practical test, but only one plaintiff scored at an eighth grade reading equivalency on the Test of Adult Basic Education.
5

58. Even though most of the plaintiffs did not meet the reading requirement for the job, they were given the option of remaining in their Janitor I positions or taking the new position on a probationary basis, even if their reading level was at the kindergarten level. At such time as they reached an eighth grade reading level, each plaintiff would be eligible for permanent status in that position. 69. On November 18, 1998, plaintiffs herein filed the instant lawsuit in the United States District Court for the Middle District of Louisiana, after having filed charges with the Equal Employment Opportunity Commission on behalf of themselves and others similarly situated, charging the School Board with discrimination against them on the basis of their sex, as well as retaliation for their being parties to the state lawsuit. 70. Plaintiffs alleged thatthe establishment ofthe conditions, qualifications and job description for the new full-time janitor position, including the requirement that applicants pass both the practical and reading tests before becoming eligible for employment in the position, was done by the defendants "with the intent to retaliate against female employees who had filed a lawsuit with the School Board [or] alternatively, the conditions that [the defendants] placed on this new position had a discriminatory impact on the plaintiffs."
On September 15, 2000, the defendants filed a motion for summary judgment as to the plaintiffs' claims under Title VII (doc. 73). The individual defendants also moved for summary judgment on the basis of their claim of qualified immunity (doc.
6

65), and for summary judgment as to the claims of plaintiffs Dorothy Banks, Bertha Twine, and Amy Lane (doc. 69).
On June 5, 2001, the court granted the defendants' Motion for Summary Judgment as to the Plaintiffs' claims under Title VII (doc. 97). In that ruling, the court held that the plaintiffs' allegations failed to satisfy the requisite elements of a Title VII retaliation claim. Specifically, the court held that the actions complained of by the plaintiffs were not "adverse employment actions" in light of Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995), which held that only "ultimate employment decisions," such as "hiring, granting leave, discharging, promoting, and compensating," could qualify as "adverse employment actions." Id. at 782. On July 18, 2001, the court informed the parties that it was considering granting summary judgment, on its own motion, as to the plaintiffs' remaining sex discrimination claim under 42 U.S.C. §1983 (doc. 99). The parties have responded to the court's notice with memoranda.
DISCUSSION As setforth in Southard v. Texas Board of Criminal Justice, 114 F.3d 539 (5th Cir. 1997): "To assert a cause of action for retaliation for the exercise of a federally protected right, a plaintiff must show that she:
1) engaged in a protected activity; 2) an adverse employment action followed; and
7

3) there was a causal connection between the activity and the adverse action." 114 F.3d at 554.
In Southland, plaintiff claimed thatthe retaliatory action against herwas less
favorable work assignments. The Court stated:
"Not every negative employment decision or event is an adverse employment action that can give rise to a discrimination or retaliation cause of action under section 1983. ... Adverse employment actions include discharges, demotions, refusals to hire, refusals to promote, and reprimands .... Undesirable work assignments are not adverse employment actions.... 114 F.3d at 555 (citations omitted).
Although the actions alleged by the plaintiffs might reasonably be construed
to pertain to promotion, and thus to constitute an ultimate employment action, the
undisputed material facts establish that the circumstances involved are significantly
distinguishable from an ordinary promotion situation. As noted in the Title VII ruling:
The move from janitor I to the new janitor position ...was not a part of any...ordered scheme of promotion to which the plaintiffs were entitled, .either from years of service, or job performance. Instead, the janitor position was a new job, for which the plaintiffs were given a right of first refusal before the position was offered to the public. Given this fact, and given the additional fact that the plaintiffs had the choice of staying where they were with no adverse consequences, this court finds that implementation of the new janitor position was not an ultimate employment decision. Ruling on Motion for Summary Judgment (doc. 97), p. 12.
Following a similar rationale, the court now finds that under the undisputed
facts, the plaintiffs cannot establish an essential element of their claim of sex
8

discrimination under 42 U.S.C. §1983, i.e., that they were subjected to an adverse
employment action.
The plaintiffs argue that the definition of "adverse employment action" may
be different under §1983 than under title VII, citing Sharp v. City of Houston, 164
F.3d 923 (5th Cir. 1999).1 The court recognizes that possibility. Nevertheless,
promotion is the only category of potential adverse employment actions relevant to
the facts alleged by the plaintiffs. Accordingly, the court concludes that the actions
of the School Board do not constitute an adverse employment action despite their
superficial similarity to "promotion."
A district court may grant summary judgment sua sponte, provided that the
losing party is given adequate notice in order to allow it to marshal its arguments
in opposition. Scott v. Mississippi Depart-:nent of Corrections, 961 F.2d 77 (5th
Cir. 1992); Berkovitz v. Home Box Office, Inc., 89 F.3d 24 (1 st Cir. 1996). Fair
notice has been given here, and the plaintiffs have not come forward with evidence
1The city urges that Mattern v. Eastman Kodak Co.... , a title VII case, precludes a finding of "adverse employment action" by limiting that phrase to "ultimate employment decisions," which would include, for example, reprimands. The definition of "adverse employment action," however, may be different under title VII from its definition under §1983. See Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997) (stating that under title VII, ultimate employment decisions include hiring, discharging, promoting, compensating, or granting leaves, but not reprimands) Mattern, 104 F.3d at 707-08 (excluding disciplinary filings and reprimands from ultimate employment decisions). But this case does not implicate the potential differences between title VII's and 1983's definitions of "adverse employment action," because under both statutes demotions can be adverse employment actions. Sharp, 164 F.3d at 933, n. 21.
9

or authority sufficient to support their remaining claim. While summary judgment on the court's own motion is an extraordinary action which should be used sparingly, the resolution of the issue of the plaintiffs' claims under title VII leads inevitably to the conclusion that their action under 42 U.S.C. §1983 must also fail.
Accordingly, judgment is hereby entered, dismissing the plaintiffs' remaining claim of sex discrimination under 42 U.S.C. §1983and this action shall be dismissed.
Baton Rouge, Louisiana, December 12, 2001.
10

 
 Us FILED
HlOoc{lffiUZWVA
IN THE UNITED STATES DISTRICT COURT980EC 14 AHW: 19 .
SIGN
FOR THE MIDDLE DISTRICT OF LOUISI~~
CL£k~ARTIN

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

EAST BATON ROUGE PARISH

)

SCHOOL BOARD,

)

)

Defendant.

)

---------------)

CIVIL ACTION NO. 97-264 SECTION: A-3

[Proposed]

ORDER SCHEDULING HEARING TO CONSIDER OBJECTIONS TO PROPOSED AWARDS FOR INDIVIDUAL RELIEF

Upon consideration of the United States' motion that the

Court schedule a hearing for the purpose of considering

objections regarding the United States' proposed individual

relief determinations, it is hereby ORDERED:

1. A hearing for the purpose of considering objections

regarding the United States' proposed individual relief

:J~ determinations will be held on

rJ..lp , 1999 at

10 tl.~.in Courtroom ~ of the United States District Court

for the Middle District of Louisiana, in Baton Rouge Louisiana;

2. Any objections to the United States' determinations

concerning the eligibility and/or the type of relief proposed to

be awarded must be made in writing by filing such objections with

the Court and mailing such objections to counsel for the United

OKT. & ENTERED
DATE,_~~~=-­
NOTICE MAl"~EDg T~O:
DATE 1&-/14 y_'_

II, I 11111I11I1 11111111I11 111111II III 11111 ImlII

3: 97-cv-00264 25 - 1

DATE: 12.114/98

DEPUTY CLERK: BW

....

States and the Defendant at the following addresses no later than

thirty (30) calendar days prior to the hearing:

Luis A. Lavin, Esq. U.S. Department of Justice Civil Rights Division Employment Litigation Section P.O. Box 65968 Washington, D.C. 20035-5968

Kenneth F. Sills, Esq. Hammonds & Sills Quad One, Suite C 1111 South Foster Drive P.O. Box 65236 Baton Rouge, Louisiana 70896

3. Not later than 14 calendar days following the date of

entry of this Order, the United States shall provide notice of

the date, time, place and purpose of this hearing to all

individuals who filed claims for relief;

4. Not later than 14 calendar days following the date of

entry of this Order, Defendant shall provide the written notice

required by ~ 53 of the Consent Decree to all current employees

and any non-claimants who have informed Defendant in writing that

they object to the relief proposed;

5. No later than seven (7) calendar days before the date

of the hearing, Defendant shall publish notice of the hearing

pursuant to , 53 of the Consent Decree~___~_

'I~ Entered this

~ day of

, 1998.

JOHN V. PARKER United States District Judge

2

 
 U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:97-cv-00264-JVP

USA v. EBR Parish School Assigned to: Judge John V. Parker Demand: $0 Cause: 42:2000 Job Discrimination (Sex)

Date Filed: 04/01/1997 Date Terminated: 06/20/1997 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff United States of America

represented by James Patrick Thompson United States Attorney's Office BR Middle District of Louisiana 777 Florida Street, Suite 208 Baton Rouge, LA 70801 225-389-0443 Fax: 225-389-0561 Email: USALAM.ECF@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luis A. Lavin United States Department of Justice Civil Rights Division Employment Litigation Section P. O. Box 65968 Washington, DC 20035-5968 202-514-7013

Stephen J. Curran U.S. Department of Justice Civil Rights Division Employment Litig P.O. Box 65968 Washington, DC 20035-5968 202-514-4762

V.

Defendant
East Baton Rouge Parish School Board

represented by Kenneth F. Sills Hammonds & Sills P. O. Box 65236 1111 S. Foster Drive, Suite C Baton Rouge, LA 70896 225-923-3462 Fax: 225-923-0315 FAX Email: ksills@hamsil.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector
Baton Rouge Association of School Employees

represented by Nancy Picard Robein, Urann & Lurye P.O. Box 6768 2540 Severn Avenue, Suite 400 Metairie, LA 70009-6768 504-885-9994 Fax: 504-885-9969 Email: npicard@rul-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis L. Robein, Jr. Robein, Urann & Lurye P.O. Box 6768 2540 Severn Avenue, Suite 400 Metairie, LA 70009-6768 504-885-9994 Fax: 504-885-9969 Email: lrobein@rul-law.com ATTORNEY TO BE NOTICED

Date Filed 04/01/1997 04/01/1997
04/01/1997

#

Docket Text

1 COMPLAINT (rgm) (Entered: 04/02/1997)

2 JOINT MOTION by USA, EBR Parish School For Conditional Entry of The Consent Decree and to Set a Fairness Hearing (Holding consent decree) (rgm) (Entered: 04/02/1997)

3 MEMORANDUM by USA in support of [2-1] joint motion For

04/01/1997 04/01/1997 04/08/1997
04/08/1997 04/21/1997 04/30/1997 04/30/1997 05/02/1997 05/16/1997 05/30/1997 06/05/1997

Conditional Entry of The Consent Decree and to Set a Fairness Hearing by EBR Parish School, USA (rgm) (Entered: 04/02/1997)
4 MEMORANDUM by EBR Parish School in support of [2-1] joint motion For Conditional Entry of The Consent Decree and to Set a Fairness Hearing by EBR Parish School, USA (rgm) (Entered: 04/02/1997)
5 MOTION by USA for Luis A. Lavin to Appear Pro Hac Vice (rgm) (Entered: 04/02/1997)
6 ORDER granting [2-1] joint motion For Conditional Entry of The Consent Decree and to Set a Fairness Hearig for 10:00 6/20/97 Any objections to this courts final approval and entry of the Consent Decree must be made in writing w/in 20 days prior to the Fairness Hearing. A written response to any such objections with the court, no later than three days prior to the scheduled date of the Fairness Hearing. set Notice of Compliance deadline to 6/17/97 ( signed by Chief Judge John V. Parker ), issued notices. (hcj) Modified on 04/08/1997 (Entered: 04/08/1997)
7 ORDER granting [5-1] motion by USA for Luis A. Lavin to Appear Pro Hac Vice ( signed by Chief Judge John V. Parker ), issued notices. (hcj) (Entered: 04/08/1997)
8 NOTICE of setting Scheduling Conference for 9:00 7/10/97 before a US Magistrate Judge in room 265 and directing attorneys to file a Status Report deadline set for 7/8/97 ( Joan Sheets, CRD ), issued notices. (hcj) (Entered: 04/21/1997)
9 MEMORANDUM by B.R. Assoc of School in opposition to Proposed Consent Decree (kdc) (Entered: 06/16/1997)
10 Objections by B.R. Assoc of School to Proposed Consent Decree (kdc) (Entered: 06/16/1997)
11 NOTICE of Hearing: reset Scheduling Conference for 9:00 7/17/97 in Room 265 , signed by CN issued notices. (kdc) (Entered: 05/02/1997)
Set magistrate assignment. (pah) (Entered: 05/16/1997)
12 LETTER To: Clerk of Court From: DeJuana Banks Ref: Fairness Hearing (kdc) (Entered: 06/02/1997)
13 NOTICE by Paul B. McKinnis of wanting to be apart of this case. (kdc) (Entered: 06/05/1997)

06/05/1997 06/10/1997 06/17/1997 06/17/1997 06/20/1997 06/20/1997 06/20/1997 06/20/1997
07/15/1997
12/10/1998 12/10/1998 12/10/1998 12/11/1998 12/14/1998

14 NOTICE by Nedra Wrights of wanting to be a part of this case. (kdc) (Entered: 06/05/1997)
15 NOTICE of Change of Adress & Name: From: Catherine Brown to Catherine Jones 1718 Blvd DeProvince Apt # 67 B. R. LA 70816 (kdc) (Entered: 06/10/1997)
16 RESPONSE by EBR Parish School in opposition to [9-1] opposition memorandum by B.R. Assoc of School (kdc) (Entered: 06/17/1997)
17 RESPONSE by USA in opposition to [10-1] opposition memorandum by B.R. Assoc of School (kdc) (Entered: 06/17/1997)
18 CONSENT DECREE ( signed by Chief Judge John V. Parker ), issued notices. (kdc) (Entered: 06/20/1997)
Case closed (kdc) (Entered: 06/20/1997)
Evidentiary Hearing held (kdc) (Entered: 06/20/1997)
19 Minute entry: 05/20/97--fairness hearing held on proposed consent decree...THE COURT APPROVED THE CONSENT DECREE. ( signed by Chief Judge John V. Parker ) ,issued notices (kdc) (Entered: 06/20/1997)
20 ORDER denying as moot [14-1] notice by Nedra Douglas Wright as wanting to become a party , denying as moot[13-1] notice by Pearl b. McKinnis to become a party to this case. ( signed by Mag. Judge Docia L. Dalby ), issued notices. (kdc) (Entered: 07/15/1997)
21 MOTION by USA for Hearing to consider objections to proposed awards of individual relief (kdc) (Entered: 12/10/1998)
22 MEMORANDUM by USA in support of [21-1] motion for Hearing to consider objections to proposed awards of individual relief by USA (kdc) (Entered: 12/10/1998)
23 MOTION by USA for Stephen J Curran to Appear Pro Hac Vice (kdc) (Entered: 12/10/1998)
24 ORDER granting [23-1] motion for Stephen J Curran to Appear Pro Hac Vice by USA ( signed by Mag. Judge Docia L. Dalby ), issued notices. (bw) (Entered: 12/11/1998)
25 ORDER granting [21-1] motion for Hearing to consider objections to proposed awards of individual relief by USA;

12/29/1998 01/20/1999 01/25/1999 01/27/1999 01/28/1999 01/29/1999 02/02/1999 02/23/1999
03/02/1999
03/05/1999

Hearing set for 2/26/99 at 10:00 in Courtroom 1...Any objections to the US' determinations concerning the eligibility and/or the type of relief proposed to be awarded must be made in writing by filing such objections with the court and mailing such objections to counsel for the US and the dft no later than 30 calendar days prior to the hearing...Not later than 14 calendar days following the date of entry of this Order, the US shall provide notice of the date, time, place and purpose of this hearing to all individuals who filed claims for relief; Not later than 14 calendar days following the date of entry of this Order, Dft shall provide the written notice required by para. 53 of the Consent Decree to all current employees and any non-claimants who have informed Dft in writing that they object to the relief proposed; No later than 7 calendar days before the date of the hearing, dft shall publish notice of the hearing... (signed by Judge John V. Parker ), issued notices. (bw) (Entered: 12/14/1998)
26 NOTICE of Objection by Ollie Taplin to the Determination of Claim (bw) (Entered: 12/30/1998)
27 NOTICE of objection by Yolanda Lovely (bw) (Entered: 01/22/1999)
28 NOTICE of objection by Bertha S. Twine (bw) (Entered: 01/26/1999)
29 NOTICE of objection by LaDonna Stewart (bw) (Entered: 01/28/1999)
30 NOTICE of objection by Euradean Stewart (bw) (Entered: 01/28/1999)
31 NOTICE of objection by Rigina Gail Whitmore Green (bw) (Entered: 02/01/1999)
32 NOTICE of objection by Matissie Bland (bw) (Entered: 02/03/1999)
33 RESPONSE by USA in opposition to [32-1] notice, [31-1] notice, [30-1] notice, [29-1] notice, [28-1] notice, [27-1] notice, [26-1] notice (bw) (Entered: 02/25/1999)
34 Minute entry: Hearing on 2/26/99 to consider objections to proposed awards of individual relief...Court denies objections ( signed by Judge John V. Parker ) ,issued notices (elp) (Entered: 03/03/1999)
35 ORDER APPROVING INDIVIDUAL RELIEF

05/26/1999

AWARDS...further ordered that the School Board shall within 20 days drom the date of entry of this Order, notify all eligible claimants of their relief awards and provide them with releases... ( signed by Judge John V. Parker ), issued notices. (bw) (Entered: 03/05/1999)
36 NOTICE TO COUNSEL...this matter is hereby consolidated... (with 98-974-A)...the govt shall file its initial response to the allegations of plas in CA 98-974 within 30 days of the date of this notice ( signed by Judge John V. Parker ), issued notices. (bnw) (Entered: 05/27/1999)

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

DOROTHY BANKS, TINA BROOKS, SHIRLEY BROWN,

*

ANNETTE GRAY, MARY L. HOLMES~ ANNIE JOHNSON,

AMY LANE, ROSA MALVEAU, DOROTHY MCPIPE,

*

ALMA NEWMAN, MAGGIE TUCKER, BERTHA TWINE,

BERTHELLA WALLACE, EDNA WELCH,

*

MARY WILLIAMS, and NELLIE WILLIAMS

*

VERSUS

*
EAST BATON ROUGE PARISH SCHOOL BOARD,

INGRID KELLEY, WARREN L. PRATT, JR.,

*

DR. PRESS L. ROBINSON, SR., JACQUELINE MIMS,

PATRICE NIQUILLE, PATRICIA HAYNE-SMITH,

*

NOEL HAMMATT, ROGER MOSER, DANIEL R.

HENDERSON, ELDON R. LEDOUX, DALTON DEVALL,

*

WILLIAM P. BLACK, and JAMES MANLEY

*

* * ******* **** *

COMPLAINT

S~H!oV 18 PH I: 04

:~;:'"::~,o,

NL

!dCHf~i~U 1. H;"RTIN·
CLERK

CIVIL ACTION
NG\ NO. gg~q1L~ -A~

SECTION

MAG. _ _

JURY REQUESTED

Plaintiffs, Dorothy Banks, Tina Brooks, Shirley Brown, Annette Gray, Mary L. Holmes,

Annie Johnson, Amy Lane, Rosa Malveau, Dorothy McPipe, Alma Newman, Maggie Tucker, Bertha

Twine, Berthella Wallace, Edna Welch, Mary Williams, and Nellie Williams, complain against

defendants, East Baton Rouge Parish School Board ("EBRPSB" or "School Board"), Ingrid Kelley,

Warren L. Pratt, Jr., Dr. Press L. Robinson, Sr., Jacqueline Mims, Patrice Niquille, Patricia Hayne-

Smith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall,

William P. Black, and James Manley alleging:

~ 1111 I 1111 IIII I II I

3:98-cv-00974 1 - 1

DATE: 11118/98

DEPUTY CLERK: BW

JURISDICTION 1.
This Court has jurisdiction pursuant to §706(t)(3) ofTitle VII ofthe Civil Rights Act of 1964 and 1991, as amended, 42 U.S.C. §2000e-5(t)(3), §1983 of the Civil Rights Act of 1871,42 U.S.C. §1983 and 28 U.S.c. §1331.
PARTIES
2.
The plaintiffs, Dorothy Banks, Tina Brooks, Shirley Brown, Annette Gray, Mary L. Holmes, Annie Johnson, Amy Lane, Rosa Malveau, Dorothy McPipe, Alma Newman, Maggie Tucker, Bertha Twine, Berthella Wallace, Edna Welch, Mary Williams, and Nellie Williams are women of full age of majority who are residents of Baton Rouge, Louisiana, and who at all relevant times were employed by defendant, East Baton Rouge Parish School Board"in janitorial positions.
3.
Defendant, East Baton Rouge Parish School Board ("EBRPSB" or "School Board"), is a political subdivision of the State of Louisiana and an employer of plaintiffs, within the meaning of §70 1(b) of Title VII, 42 U.S.C. §2000e-(b).
4. Defendants, Ingrid Kelley, Warren L. Pratt, Jr., Dr. Press L. Robinson, Sr., Jacqueline Mims, Patrice Niquille, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall and William P. Black are persons of full age ofmajority who are residents of Baton Rouge, Louisiana and who are members of the EBRPSB.
-2-

5.
Defendant, James Manley, is a person of full age of majority, upon information and belief a resident of Baton Rouge, Louisiana, and employed by the EBRPSB in the position of supervisor of human resources for its maintenance division. At all relevant times, Mr. Manley has been a supervisor of the plaintiffs.
ADMINISTRATIVE PREREQUISITES 6.
On May 6, 1998, plaintiffs, Dorothy Banks, Tina Brooks, Annette Gray, Mary L. Holmes, Annie Johnson, Amy Lane, Rosa Malveau, Dorothy McPipe, Alma Newman, Maggie Tucker, Bertha Twine, Berthella Wallace, Edna Welch, Mary Williams, and Nellie Williams filed charges with the Equal Employment Opportunity Commission ("EEOC"), on behalfofthemselves and those similarly situated, charging the EBRPSB with discriminating against them on the basis of their gender and with retaliating against them for being parties to a state lawsuit alleging employment discrimination.
7. The EEOC charges were filed within three hundred (300) days of the discriminatory and retaliatory employment practices described in this Complaint. On November 9, 1998, the plaintiffs received notification of right to sue from the EEOC.
FACTS 8.
On June 29, 1993, and in amending petitions filed on October 6, 1993 and April 12, 1994, plaintiffs along with other female Janitor I employees became parties to a state lawsuit filed against the School Board alleging employment discrimination. The state lawsuit alleged in part that the
-3-

School Board had reduced their hours of employment from 6 hours to 4 hours and had eliminated their medical benefits and, in some cases, their retirement benefits, on the basis oftheir sex -- female. In the summer of 1997, plaintiffs entered into settlement negotiations with the School Board in an attempt to resolve the state lawsuit. One element of settlement demanded by the plaintiffs herein was reinstatement to full-time janitorial positions with resumption of their retirement and medical benefits.
9. The School Board responded in part to the state law plaintiffs' settlement proposal by informing plaintiffs that it was creating a new, full-time janitorial position and that it wanted to find out how many of the plaintiffs were interested in and how many were eligible for employment in the new, full-time janitorial position.
10. In September or October 1997, plaintiffs were contacted by the human resources department for the maintenance division and directed to come to a School Board office to take a test for the new full-time janitorial position. Plaintiffs were then given a "practical" test in the morning, evaluating their skills in operating a lawnmower, an edger, a weeder, a buffer and other equipment as well as performing tasks such as changing air-conditioning filters and climbing ladders to change light bulbs. Then after a lunch break, plaintiffs were all directed to take a timed, written reading test. Upon information and belief, the reading test did not pertain to janitorial duties, but was a general reading test. Many of the plaintiffs did not finish the reading test in the time allotted.
-4-

11. Thereafter, plaintiffs were notified that they had all "passed" the practical section of the test, but that they, with the exception of Shirley Brown, had "failed" the reading portion of the janitor test. Shirley Brown was notified that she had passed both sections of the test, indeed, that she had made the highest score.
12. Plaintiffs were contacted individually and orally by defendant, Manley, who told them that unless they passed the reading test with an eighth grade level reading score, they could not qualify for the new full-time janitorial position.
13. Mr. Manley informed plaintiffs that they could remain in their current job position of Janitor
I, working four hours per day, without medical benefits. Alternatively, Mr. Manley offered plaintiffs, except Shirley Brown, employment in the new full-time janitorial position on a "probationary" basis.
Mr. Manley informed the plaintiffs that if they accepted the "probationary" janitorial position, they
would have to go to adult education classes in reading and be re-tested in reading. Mr. Manley told plaintiffs that if they passed the reading test at the end of nine months, their pay would be increased to their current step to reflect their years as a School Board employee but not to their current hourly rate. Mr. Manley showed plaintiffs the salary scale for the new janitorial position, which provided a lower hourly rate for each corresponding step than did the salary scale for the Janitor I positions which they currently held.
-5-

14. Mr. Manley did not give all of the plaintiffs the same information about the conditions of
employment, nor were the conditions written down. Mr. Manley informed some of the plaintiffs that
ifthey did not receive a passing score on the reading test after re-taking it, they would be terminated.
Mr. Manley informed other plaintiffs that he did not know what would happen to them if they did
not pass the reading test after re-taking it. 15.
Mr. Manley informed the plaintiffs that if they accepted the probationary janitorial position,
they would be placed at the "zero" step in the wage scale for that position. At the "zero" step they would be paid $5.82 per hour. Mr. Manley informed plaintiffs that only if they passed the reading test could they be raised to their current salary step, and even then they would not be raised to their current hourly rate.
16.
Mr. Manley told plaintiffs that ifthey took the new janitor job on a probationary basis, they
could not return to their former janitor positions, because the positions would no longer be available. When Mr. Manley was asked if they could stay in their current janitorial positions, work on their reading and then take the test again, he told them no; Mr. Manley said that once the new janitor positions were filled, janitorial substitutes would be hired, who would then be the only ones promoted into the new janitor positions.
17. Plaintiffs are all long term employees of the EBRPSB (all had more than 6 years of service), who through step increases over the years had earned pay increases and had reached at least the sixth
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step in the janitorial pay scale (0-12). For example, Shirley Brown, Dorothy Banks, Mary Holmes, Amy Lane, Rosa Malveau and Dorothy McPipe had 7, 9, 10, 17, 26 and 22 years of service, respectively, in 1997 with the School Board. Rosa Malveau, Dorothy McPipe, Berthella Wallace and Edna Welch who were earning $10 per hour at Step 15 as Janitor 1's, would have seen their wage rates cut almost in half at Step 0 in the new janitor position.
18. Mr. Manley offered Shirley Brown a "promotion" to the new janitorial position, at her current salary Step 7. However, Step 7 in the new janitorial salary scale paid $7.36 per hour whereas Ms. Brown was earning $8.08 per hour in her Janitor I position at Step 7. Shirley Brown protested that since she made the highest score and was being promoted to a new position, she should be earning more, not less. Nevertheless, Ms. Brown accepted the job as offered.
19. Upon information and belief, the past policy of the School Board has always been when promoting employees, to assign the employees to the pay grade called for by the new position at the step equal to or above their previous salary, plus 5%. This new policy or practice put into effect for the new janitor position only affects Janitor I employees -- all female.
20. Plaintiff, Rosa Malveau, asked Mr. Manley why they had to take a reading test for the new position, and he told her "that's what happens when you file a lawsuit."
21. Upon information and belief, the new full-time janitor position requires the same skills and performance of the same duties as the old Janitor I and Janitor II job positions. Upon information
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and belief, no janitors, prior to this time, have been required to take a reading test for the performance of those duties.
22. Upon information and belief, the reading test does not evaluate a necessary skill for the new janitorial position; upon information and belief the reading test was established as a prerequisite to the new janitorial position in retaliation for plaintiffs' filing a state discrimination lawsuit.
23. Upon information and belief, some of the plaintiffs who accepted the new janitorial position on a probationary basis are performing the job duties of that position satisfactorily but are being paid a reduced rate of pay in comparison to their seniority with the School Board.
24. When Mr. Manley told plaintiff, Tina Brooks, about her options regarding the full-time janitor position, he told her that she might have to work nights because "it would be discrimination to put all men in the night jobs." Upon information and belief, Mr. Manley told Ms. Brooks this to discourage her from taking the new janitorial position, knowing that she could not work at night because she had a 5-year old daughter.
25. Plaintiff, Dorothy McPipe, had worked for the EBRPSB for 22 years prior to being given this reading test; Ms. McPipe was also a high school graduate of the East Baton Rouge Parish public schools. Nevertheless, Ms. McPipe has been told that she is not qualified to hold the lowest paid School Board position, even though she has performed that position for 22 years.
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26. Plaintiff, Nellie Williams, had been employed by the School Board for 8 years when she took the practical and reading tests for the new janitor position. Ms. Williams graduated from Baker High School, an East Baton Rouge Parish public school in 1977, but has now been told that she cannot read well enough to qualify for the lowest paying janitorial job in the school system, which she has performed for 8 years.
27. The plaintiffs were required to risk the seniority oftheir part-time Janitor I positions and their many years of service to take a "probationary" full-time position at a greatly reduced hourly pay rate. Upon information and belief, the conditions placed on this probationary employment were retaliatory in intent and discriminatory in effect. The only people affected by these conditions were persons in the Janitor I position, all female.
28. Upon information and belief, defendants Manley and School Board members, Ingrid Kelley, Warren L. Pratt, Jr., Dr. Press L. Robinson, Sr., Jacqueline Mims, Patrice Niquille, Patricia HayneSmith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall, and William P. Black established the conditions, qualifications and job description for a full-time janitorial position with the intent to retaliate against female employees who had filed a lawsuit with the School Board; alternatively, the conditions that they placed on this new position had a discriminatory impact on the plaintiffs.
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I>

•

I

..

COUNT I The defendant, East Baton Rouge Parish School Board, has discriminated against plaintiffs in the terms and conditions of their employment on the basis of their gender and in violation of Title VII.
COUNT II The defendant, East Baton Rouge Parish School Board has retaliated against plaintiffs because of their state law discrimination lawsuit in violation of Title VII.
COUNT III Defendants, East Baton Rouge Parish School Board, Ingrid Kelley, Warren L. Pratt, Jr., Dr. Press L. Robinson, Sr., Jacqueline Mims, Patrice Niquille, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall, William P. Black, and James Manley have discriminated against plaintiffs under color of state law in violation of the Civil Rights Act of 1871, 42 U.S.C. §1983. WHEREFORE, plaintiffs pray for a trial by jury, and respectfully request that this Court enter a judgment against the defendants as follows: a. Declaring the acts and practices complained of are in violation of Title VII and §1983
of the Civil Rights Act of 1871; b. Enjoining and permanently restraining those violations; c. Directing the defendants to take such affirmative action as is necessary to ensure that
the effects of these unlawful employment practices are eliminated and do not continue to affect plaintiffs' employment opportunities;
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. ~
d. Directing defendants to place plaintiffs in the positions they would have occupied but for the defendants' discriminatory treatment and making them whole for all earnings they would have received but for the defendants' discriminatory treatment including but not limited to wages, pensions and lost medical benefits;
e. Awarding plaintiffs compensatory and punitive damages; f. Awarding plaintiffs the costs involved in bringing this action, including reasonable
attorney's fees; g. Awarding plaintiffs prejudgment interest; and h. Granting such other relief as this Court deems equitable and proper.
ROBEIN, URANN & LURYE, P.L.C.
Nancy Pic d (Bar No. 19449) Mark A. Sweet (Bar No. 25267) P.O. Box 6768 2540 Severn Avenue, Suite 400 (70002) Metairie, Louisiana 70009-6768 (504) 885-9994 Counsel for Plaintiffs
F:\WP51\ANNETTE\BRASE\MDLA\PLEADING\COMPLAIN.MD
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 CHARLES R. FULBRUGE III CLERK

United

States

Court

01' 'J

Ar".'Peais

filED

FIFTH CIRCUIT OFFICE OF THE CLERK

U.S. D!ST. COURT MD=t\::: 'T OF LA.

TEL. 504-310-7700
03 ~jAR I 4 J~0~~~~~!130

March 13, 2003

SI GN ---::-o=-:::-,-::-=-:--
by DEPUTY CLERK

Mr Lawrence Talamo, Clerk
Middle District of Louisiana, United States District Court 777 Florida Avenue Room 139 Baton Rouge, LA 70801

Baton Rouge

No. 02-30090 Banks v. E Baton Rouge Prsh S USDC No. 98-CV-974-A

Enclosed, for the district court only, is a certified copy of the judgment issued as the mandate.
Enclosed, for the district court only, is a copy of the court's opinion.
Record/original papers/exhibits to be returned.

cc: (letter only) Honorable John V Parker Ms Nancy Picard Ms vw.ilt~~ Murphy
j\Ji) MDT-1 nATE ",', \~. ;'.' " ,
DATE~BV~ ~ i~OTlCE AIl:E TO:
2-.~~ <Sf
~
~
~~~v-

Sincerely, CHARLES R. FULBRUGE III, Clerk
BY'~' crLfiJ Whi'Shelka D. Chlssell, Deputy Clerk 504-310-7687
7 INITIALS l~~KET~
~~~lO~==iJ1

.. •

" • .!#

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

U. S. COURT. OF APPEALS
F I L Eb

No. 02-30090

fEB 192003

D.C. Docket No. 98-CV-974

CHARLES R. FULBRUGE "' CLERK

DOROTHY BANKS; ET AL
Plaintiffs
TINA BROOKS; SHIRLEY BROWN; ANNETTE J GRAY; MARY HOLMES; ANNIE JOHNSON; AMY LANE; ROSA MALVEAU; DOROTHY MCPIPE; ALMA NEWMAN; MAGGIE TUCKER; BERTHA TWINE; BERTHELLA WALLACE; EDNA WELCH; MARY WILLIAMS; NELLIE WILLIAMS
Plaintiffs - Appellants

v.
EAST BATON ROUGE PARISH SCHOOL BOA-RD; INGRID KELLEY; WARREN
L PRATT, JR; PRESS L ROBINSON, SR, DR; JACQUELINE MIMS; PATRICIA HAYNE-SMITH; NOEL HAMMATT; ROGER MOSER; DANIEL R HENDERSONj ELDON R LEDOUXj DALTON DEVALLj WILLIAM P BLACKj JAMES MANLEY
Defendants - Appellees

Appeal from the United States District Court for the Middle District of Louisiana, Baton Rouge.
Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and DAVIS*, District Judge.
JUDGMENT
This cause was considered on the record on appeal and was argued by counsel.
It is ordered and adjudged that the judgment of the District Court is affirmed.
IT IS FURTHER ORDERED that plaintiffs-appellants pay to defendants-appellees the costs on appeal to be taxed by the Clerk of this Court.

I SSUED AS MANDATE: HAR.-1 3 zaOl
*District Judge of the Eastern District of Texas, sitting by designation.
Atrueoopy Teat
a""B~l:trw2D
Deputy
New Orlaans, Louisiana MAR 13 2003

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
No. 02-30090

U. S. COURT OF APPEALS
F I LED
FEB 19 2003~
CHARLES R. fULBRUGE Iff
CLERK

DOROTHY BANKS; ET AL, Plaintiffs,

TINA BROOKS; SHIRLEY BROWN; ANNETTEJ GRAY; MARY HOLMES; ANNIE JOHNSON; AMY LANE; ROSA MALVEAU; DOROTHY MCPIPE; ALMA NEWMAN; MAGGIE TUCKER; BERTHA TWINE; BERTHELLA WALLACE; EDNA WELCH; MARY WILLIAMS; NELLIE WILLIAMS,

versus

Plaintiffs - Appellants,

EAST BATON ROUGE PARISH SCHOOL BOARD; INGRID KELLEY; WARREN L PRATT, JR; PRESS L ROBINSON, SR, DR; JACQUELINE MIMS; PATRICIA HAYNE-SMITH; NOEL HAMMATT; ROGER MOSER; DANIEL R HENDERSON; ELDON R LEDOUX; DALTON DEVALL; WILLIAM P BLACK; JAMES MANLEY,
Defendants - Appellees.

Appeal from United States District Court for the Middle District of Louisiana

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and DAVIS·, District Judge.

• District Judge ofthe Eastern District of Texas, sitting by designation.

EMILIO M. GARZA, Circuit Judge: Fifteen female plaintiffs (collectively, "Employees") formerly or currently employed as
janitors by the East Baton Rouge Parish School Board appeal the district court's decisions granting summaryjudgment in favor ofthe Board, its individuals members, and James Manley, the Personnel Supervisor for the Board's Maintenance Department (collectively, the "Board"). In granting
summaryjudgment, the district court dismissed Employees' Title vn retaliation and disparate impact
discrimination claims, as well as their § 1983 retaliation claim, against the Board. Employees argue that the district court erred in concluding that Employees failed to make a prima facie showing of
an adverse employment action under either Title vn or § 1983. According to Employees, the
Board's implementation ofa reading requirement and new salary structure for a new Janitor position, which was created pursuant to a consent decree entered into with the U.S. Department ofJustice (the "DOJ"), thwarted Employees' immediate "promotion." This action, according to Employees, kept them from reaching their appropriate pay level and step and was, therefore, an adverse employment
action under both Title vn and § 1983. Employees also argue that the district court erred in
concluding that Employees failed to make a prima facie showing under Title VIT that the reading requirement, implemented by the Board, selected applicants for the new Janitor position in a discriminatory pattern resulting in a sex-based imbalance in the Board's workforce.
I We begin with a briefsummary ofthe unique facts ofthis case. The Board employedjanitors in three capacities: "Janitor I," "Janitor IT," and "Janitor ill." Janitor I employees, all ofwhom were female, worked part-time for six hours a day, nine months of the year. They were responsible for
performing the most basic janitorial tasks. The Janitor n employees, most of whom were male,
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worked eight hours a day for the entire year. They were responsible for performing tasks essentially the same as those performed by Janitor I employees, with the addition of some duties, such as lawn care. Janitor ill employees, all of whom were male, worked full-time and were responsible for performing tasks essentially the same as those performed by Janitor I and Janitor II employees, with the addition ofsome supervisory tasks, such as locking up buildings and supervising cleaning crews.
The Employees, all ofwhom are female, were Janitor I employees. After the Board decided to eliminate the medical benefits received by Janitor I employees and to reduce their working hours (from six hours per day to four hours per day), a number of Janitor I employees, including Employees, sued the Board in state court, alleging that the Board's action had a disparate impact on female employees in violation of Louisiana state law, since all Janitor I employees were female. Their suit also alleged intentional sex discrimination in violation of Louisiana state law.
While the state court lawsuit was still pending,' the DOJ began an inquiry into the Board's procedures for placing women into the Janitor IT and Janitor ill positions. The impetus for the DOJ investigation was the allegation that the Board discriminated against women on the basis of their
gender in violation of Title vn by reserving the Janitor IT and Janitor ill positions for males only.
Subsequently, the Board began to evaluate all school system positions, including job descriptions and salary schedules, for the stated purpose of eliminating the inefficient use of resources. All janitor and custodian classifications were included in this study. The Board decided to phase out the three-tiered janitor position and replace it with two new positions: "Janitor" and "Lead Janitor." The Janitor position (the "new Janitor position") combined the duties ofthe Janitor
, The state court ultimately dismissed the plaintiffs' lawsuit with prejudice. The plaintiffs chose not to appeal the state court judgment.
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I and Janitor IT positions. The "Lead Janitor" position was intended to be the equivalent of the Janitor ill position. Both the new Janitor position and the Lead Janitor position were full-time positions, with medical benefits. However, the Board created a new pay scale, which resulted in lower hourly pay for any Janitor I employee who accepted the new Janitor position. Additionally, the Board implemented a testing procedure to select applicants for the new Janitor position. Applicants were required to take and pass a "practical" test involving the use of maintenance equipment, as well as a reading test, which tested an applicant's ability to read at an eighth-grade level. Applicants for the Lead Janitor position were not required to take either ofthese two tests.
The Board's implementation ofthe reading test for the new Janitor position was, according to the Board, its response to an incident in which at least one Board employee was sickened as a result of a custodian's failure to follow printed instructions on the use of a pesticide. The Board maintains that safety concerns demanded its new Janitors be able to read at an eighth-grade level, since the safety guidelines of the Occupational Safety and Health Administration were written on an eighth-grade level, as were most Material Safety Data Sheets, which are required for all chemicals used in the workplace.
The Board subsequently entered into a consent decree (the "Consent Decree") with the DOJ, which incorporated the Board's plan for the new Janitor position and Lead Janitor position, as well as its plan for a new salary structure. The purpose of the Consent Decree was to resolve all issues raised by the DOJ in a separate lawsuit that the DOJ, after its lengthy investigation of the Board, brought against the Board under Title VIT, alleging discrimination against females in the hiring and promotion ofjanitors. See United States v. East Baton Rouge Parish Sch. Bd., No. 97-264-A-3. The Consent Decree provided that "interested and qualified incumbent employees in the Janitor I
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· .. positions [would] be provided ... an opportunity to be promoted to the new Janitor position."
It made no mention of the reading requirement, though it did state that "[a]pplicants selected for
possible employment as Janitors or Lead Janitors may be required by the School Board to pass
additional lawful and job-related selection devices or requirements."
Thereafter, when Employees (except those who chose not to do so) applied for the new Janitor position, they took the "practical" test and the reading test.2 Though all passed the "practical" test, only one passed the reading test.3 Unlike the day-by-day substitutes and applicants offthe street
who were later given an opportunity to apply for the new Janitor position, Janitor I employees who
failed the reading test were given the option of either remaining in their old Janitor Ijobs or taking
the new Janitor position on a probationary basis, regardless of their current reading ability.4
Attendance at adult reading classes was a condition of this probation. Those who accepted the
probationary Janitor position would be paid at the lowest step in the new pay scheme until
demonstrating an eighth-grade reading level on the retest, at which time the person would be moved
up the salary schedule to a step corresponding to the step she had occupied on the old Janitor I salary
2 Plaintiffs Dorothy Banks, Amy Lane, and Bertha Twine, who elected not to proceed with the application process for the new Janitor position, did not take the practical test or the reading test.
3 PlaintiffShirley Brown was the only one to pass both the practical test and the reading test.
Brown was offered employment in the new Janitor position, which she accepted. She was placed on the step in the new salary schedule that corresponded to the step she had occupied in the Janitor I salary schedule.
4The day-by-day substitutes working for the Board were later offered an opportunity to apply for the new Janitor position. They, unlike the part-time Janitor I employees, were required to exhibit, at a minimum, a fifth grade reading level before being offered the job on a probationary basis. When the Board, after advertising the position to the public, began to fill vacancies in the Janitor position, it held those applicants to the eighth grade reading requirement; if they failed to exhibit an eight grade reading level, they were not offered the position.
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schedule. According to Employees, some were informed that, ifthey failed the reading test a second time, they would lose their jobs; and all were informed that, ifthey decided to accept the new Janitor position on a probationary basis, they could not return to their old Janitor I positions. Employees also claim that they were informed that any Janitor I employee who failed the first reading test for the new Janitor position would not be allowed to remain in her current Janitor I position while preparing to retake the test. Also, according to Employees, when Plaintiff Rosa Malveau asked James Manley why the Janitor I employees had to take a reading test for the new Janitor position, Manley responded, "That's what you get for filing a lawsuit."
After filing a charge with the Equal Employment Opportunity Commission, in which Employees claimed that the Board discriminated against them on the basis of their gender and retaliated against them for participating in the state court lawsuit, Employees filed the instant suit against the Board in the federal district court. Their federal suit claimed unlawful retaliation and disparate impact employment discrimination under Title VIT, as well as unlawful retaliation under 42 U.S.C. § 1983. Concluding that Employees failed to state a prima facie case of retaliation or disparate impact discrimination under Title VIT, or of retaliation under § 1983, the district court granted the Board's motion for summary judgment and dismissed all of Employees' claims.
We review the district court's grant of summary judgment de novo. Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998). Summary judgment is proper when there "is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter oflaw." Conoco, Inc. v. Medic Sys., Inc., 259 F.3d 369, 371 (5th Cir. 2001) (citation omitted). A court considering a motion for summaryjudgment must draw all reasonable inferences in favor ofthe nonmoving party. Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 189 (5th Cir. 1991).
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II
Employees contend that the Board implemented the new salary structure and reading
requirement for the new Janitor position in retaliation for Employees' participation in a previous
state lawsuit against the Board. According to Employees, the district court erred in concluding that
Employees failed to make a prima facie case of retaliation under Title VII.s
To survive summaryjudgment in a Title VII retaliation case, the plaintiffmust make a prima
facie showing: "(1) that the plaintiff engaged in activity protected by Title VII, (2) that an adverse
employment action occurred, and (3) that a causal link existed between the protected activity and the
adverse action." Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002). An
employment action that "does not affect job duties, compensation, or benefits" is not an adverse
employment action under Title VII. Hunt v. Rapides Health Care Sys., LLC, 277 F.3d 757, 769 (5th
Cir. 2001). Only "ultimate employment decisions such as hiring, granting leave, discharging,
promoting, and compensating" satisfy the adverse employment action element. Dollis v. Rubin, 77
F.3d 777, 781-82 (5th Cir. 1995) (citation omitted). A demotion also qualifies as an adverse
employment action under Title VII. Sharp v. City ofHouston, 164 F.3d 923, 933 n.21 (5th Cir.
S Under Title VII,
it is an unlawful practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000(e)-3(a). The meaning of"discriminate" in § 2000(e)-3(a) is informed by § 2000(e)2(a)(I), which provides: "It should be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges ofemployment." Fierros v. Texas Dept. ofHealth, 274 F.3d 187, 191 (5th Cir. 2001).
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1999). Title VIT does not, however, address "every decision made by employers that arguably might
have some tangential effect upon those ultimate decisions." Burger v. Cent. Apartment Mgmt., 168
F.3d 875, 878 (5th Cir. 1999). For example, a decision made by an employer that only limits an
employee's opportunities for promotion or lateral transfer does not qualify as an adverse employment
action under Title VIT. See Burger, 168 F.3d at 878-80 (holding that an employer's refusal of an
employee's request for a "purely lateral transfer" does not qualify as an adverse employment action under Title Vll); Dallis, 77 F.3d at 782 (affirming the decision that an employer's denial ofa "desk
audit" to a female employee is not an adverse personnel action under Title VIT, even though the
employee claimed it was an ultimate employment decision that restricted her "promotional
opportuni ti es").
Here, the district court reasoned that Employees failed to demonstrate that the Board's
implementation ofthe reading requirement and new salary structure for the new Janitor position was an ultimate employment decision, since the creation ofthe new Janitor Position was not an "ordinary promotion situation," and since Employees had the choice of staying in their current Janitor I
positions with no adverse consequences. However, according to Employees, the Board's
implementation of a reading requirement and a new salary structure for the new Janitor position
thwarted Employees' immediate "promotion" to their appropriate pay level and step,6 and was,
6Employees argue that the Board's new policy for "promoting" Janitor I employees into the new Janitor position was out of sync with its established policy for promoting employees, and therefore thwarted their "promotion" to the appropriate pay level and step in the new Janitorposition. The established policy ofthe Board for promoting an employee was to assign that employee to a pay
grade called for by the new position at a step equal to or above his or her previous salary, plus 5 %.
In contrast, a Janitor I employee who accepted the new Janitor position was placed either at step zero (if she did not pass the reading test) or in the same step of the new scale (if she passed the test), which was a lower hourly rate. Thus, Employees complain that, even though the Consent Decree characterized the move from the Janitor I position to the new Janitor position as an opportunity to
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therefore, an ultimate employment decision. The Board's placement of"onerous" conditions on the
new Janitorposition, Employees contend, denied Employees the greater hours, greater compensation,
and medical benefits which they sought.
Regardless of whether the conditions placed on the new Janitor position were unfavorable
to Employees seeking to be "promoted" to it, the Board's implementation ofthis new position, with
its new salary structure and reading requirement, did not amount to an ultimate employment decision
under Title VII. As the district court correctly reasoned, the move from Janitor I to the new Janitor
position was not a part of "any internal ordered scheme of promotion to which the plaintiffs were
entitled, either from years of service or job performance." Pursuant to the Consent Decree, which
provided that "interested and qualified incumbent employees in the Janitor I ... positions [would]
be provided ... an opportunity to be promoted to the new Janitor position," the Board gave
Employees a right of first refusal for the new Janitor position.7 Yet, Employees have not provided
any authority showing that an employer's act of giving an employee a right of first refusal for a new
be "promoted," those Janitor I employees would have to accept a lower pay rate in order to move into the new position, regardless oftheir experience. For example, PlaintiffRosa Malveau, who was at step 15 of the Janitor I pay scale (G-12), $10.90 per hour, argues that the Board should have offered to place her in step 19 ofthe new Janitor scale (G-14), $11.03 per hour, instead of step zero, $5.82 per hour.
7 Following the district court's approval of the Consent Decree, all Janitor I employees, including Employees, were contacted either by James Manley, or his secretary, regarding the new Janitor position. Janitor I employees were given the option of either going forward with the application process or remaining in their Janitor I positions. Those Janitor I employees interested in applying were directed to report to the Maintenance office complex to participate in testing designed to evaluate whether they possessed the qualifications required for the new Janitor position. Persons employed as Janitor I employees (including Employees herein, except those who chose not to participate) were the only ones tested at the first testing sessions for the new Janitor position. After completing the testing process, those who participated were contacted by Manley to discuss their test results and options, including the option oftaking the new Janitor position on a probationary basis.
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job can constitute an ultimate employment decision under Title VII. Neither have Employees demonstrated that, by giving Employees a right offirst refusal for the new Janitor position, the Board in any way coerced Employees into accepting that position and its lower hourly wages.8 On the contrary, the summary judgment evidence established that, consistent with the Consent Decree, Janitor I employees who either did not apply for the new Janitor position or did not accept the position on a probationary basis were allowed to stay in their Janitor I positions at their current wage rate and seniority status, free from adverse consequences.9 Thus, the Board's implementation ofthe new Janitor position, for which Employees had a right offirst refusal, did not constitute an ultimate employment decision because it did not affect Employees' job duties, compensation, or level of benefits as Janitor I employees. See Hunt, 277 F.3d at 769.
As for the reading requirement, Employees argue that its implementation was an ultimate employment decision by the Board because it ''was represented to [Employees] as the requirement for an immediate promotion to a full-time position which they sought," and because it was a "stumbling block" to their "immediate promotion" to the full-time position, for which, Employees claim, they were qualified. to We do not agree that the Board's implementation of the reading
8 Employees state that "[a]Imost all plaintiffs-appellants, like Ms. Malveau, rejected the new Janitor job because it meant too many more work hours for too little pay with too many risks. Only Maggie Tucker ... accepted the new Janitor position, regardless of the cut in hourly pay."
9 The Consent Decree directs that "an incumbent employee who declines the newly established Janitor or Lead Janitor position shall retain his or her current wage rate, seniority status, and other attendant benefits, if any."
\0 Employees offered summary judgment evidence suggesting that the reading test was not an appropriate measure ofthe janitorial skills necessary to perform the work required ofthose in the new Janitor position, and that they were qualified for the new position because its duties were essentially the same as their duties as Janitor I employees.
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requirement constituted an ultimate employment decision. Although the reading test prevented all but one ofthe Employees from making an immediate change to the new Janitor position, any of the Employees who failed the reading test still had the option of exercising her right of first refusal and occupying the new Janitor position on a probationary basis until the retest. Because Employees do not allege that the reading test was unfairly rigged to prevent them from passing, we may assume that the test was a fair assessment of reading skills. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 709 (5th Cir. 1997) (reasoning that, because theplaintiffwho failed two "Major Skills Tests" did not maintain that the tests were unfairly rigged, the tests were, presumably, a "correct assessment" ofher ability to perform those skills). Even assuming that the Board told Employees they would lose their jobs if they accepted the probationary position but failed the retest, the Board's decision to implement the reading requirement was, at most, a mediate decision that could lead to an adverse employment decision for an applicant who failed that retest. Thus, the Board's decision to implement the reading requirement for the new Janitor position does not qualify as an ultimate employment decision under Title VII. See Dollis, 77 F.3d at 780 ("Title VII's anti-retaliation provision [does notJ refer[J to ... 'interlocutory or mediate' decision[sJ which can lead to an ultimate decision." (internal quotations omitted)).
For these reasons, we conclude that Employees failed to show that the Board's implementation of the reading requirement and new salary structure for the new Janitor constituted an adverse employment decision.I I We therefore hold that the district court correctly decided that Employees failed to make a prima facie showing of Title VII retaliation.
II Since Employees failed to make a prima facie showing ofan adverse employment decision, we need not consider whether Employees established a causal link between the protected activity and the alleged adverse employment decision.
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III Employees argue that the Board's actions had a disparate impact on female janitorial employees, since the only persons impacted by the reading test were Janitor I employees, all of whom were female. Thus, according to Employees, the district court erred in ruling that Employees failed to state a prima facie case ofdisparate impact employment discrimination under Title VIT. The district court reasoned that Employees failed to show that the reading requirement resulted in a sexbased imbalance in the Board's workforce, regardless of any pre-existing imbalance in the workforce. To establish a prima facie case of Title VIT disparate impact employment discrimination, a plaintiff must show that the employer's facially neutral hiring standards select applicants in a significantly discriminatory pattern. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977) (citing Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849,28 L.Ed.2d 158 (1971)). Here, neither party disputes that the reading requirement was a facially neutral employment practice. 12 However, Employees contend that the Board's implementation of the reading requirement had a disparate impact on female employees. According to Employees, female Janitor I employees were the only incumbent employees adversely impacted by the reading requirement, since the mostly-male Janitor IT employees could place into Lead Janitor positions without having to take a reading test. Employees contend that the Board "could not permissibly or lawfully create a new standard that impacted only female employees." Initially, we must decide how to measure the alleged disparate impact. Employees propose
12 Employees do not dispute that all persons, male and female, seeking full-time employment in the new Janitor position, whether a Janitor I, a day-by-day substitute, or off the street, were required to meet the reading requirement by demonstrating an ability to read at an eight grade level.
-12-

that, as a group, incumbent employees who were required to take a reading test to place into any new janitorial or custodial position should be compared with all incumbent employees who placed into any new janitorial or custodial positions. The Board, however, correctly argues that the we should compare the group of applicants who placed into the new Janitor position with the entire pool of applicants for that new position. See Bunch v. Bullard, 795 F.2d 384, 395 (5th Cir. 1986) ("The threshold inquiry ... is whether the plaintiffs have shown that the tests in question select applicants for hire or promotion in a [sex] pattern significantly different from the pool of applicants."); Page v. U.S. Indus., Inc., 726 F.2d 1038, 1053-54 (5th Cir. 1984) ("[W]e have held that a showing of 'marked disproportion' between the representation of the allegedly disfavored group in the employer's workforce and its representation in the labor pool from which employees are selected suffices to establish a prima facie case of disparate impact.").
Using persons who placed into the new Janitor position and the entire pool of applicants for that position as groups for comparison, we must decide whether Employees presented either statistical or non-statistical evidence establishing a prima facie case of disparate impact. See Page v. U.s. Industries Inc., 726 F.2d 1038, 1053 (5th Cir. 1984) ("A plaintiff may use statistical as well as non-statistical evidence in establishing a prima facie case of disparate impact."). Although the female Janitor I employees were given a right of first refusal for the new Janitor position, the position was otherwise open to both male and female applicants. Employees have not produced any statistical evidence tending to show that the reading requirement operated in a way which selected applicants from the protected group - females - in a sex pattern "markedly disproportionate" from the entire pool of applicants for the new Janitor position, of which Employees were a part. See Bunch, 795 F.2d at 395 ("The tests must be 'significantly discriminatory' or at least create
-13-

percentages which are 'markedly disproportionate."') (quoting Rivera v. City ofWichita Falls, 665
F.2d 531, 534-35 (5th Cir. 1982».13 Neither have Employees produced non-statistical evidence
demonstrating that the reading requirement selected females in a sex pattern significantly different
from the entire pool of applicants for the new Janitor position. Employees simply argue that
"Plaintiffs, all female, were the only ones impacted by the added reading test." Thus, Employees
have failed to raise a genuine issue as to whether the facially neutral reading tests selected applicants
in a significantly discriminatory sex pattern. We therefore hold that the district court correctly
concluded that Employees failed to establish a prima facie case of Title VII disparate impact
discrimination.
IV
Employees also contend that the district court erred in reasoning that Employees failed to
make a prima facie showing ofan adverse employment action under § 1983. Employees argue that,
because of their participation in a state lawsuit against the Board, an activity protected by the First
Amendment, the Board retaliated against them through its "failure to promote and pay [Employees]
at the appropriate rate" and its "use of [an] inappropriate test to block [Employees'] rightful
13 Employees claim "[t]here is no need to resort to a statistical analysis." The Board, however, provided statistical evidence showing that the selection of the protected group, females, actually exceeded the selection ofthe non-protected group, males. The Board explains that, since this position was created and these reading tests have been used, a total of 548 females and 471 males have applied for employment in this position. Ofthose applicants, 87 females (or 15.9% ofthe total female applicants) and 56 males (or 11.9 % of the total male applicants) were selected for employment in the position. Compare Bunch v. Bullard, 795 F.2d 384, 395 (5th Cir. 1986) (determining that the observed disparity between the pass rate for blacks (23%), the protected group, compared with the pass rates for whites (80%), the non-protected group, for the IPMA promotional test was "great enough to permit the conclusion that a prima facie case of disparate impact [had] been established."). The Board also maintains that "the figures show that, in reality, more women have been selected for employment for the new janitor position than men despite the testing requirements."
-14-

positions." To state a claim of retaliation for exercise of First Amendment rights under § 1983,
Employees must show that 1) they engaged in a protected activity, 2) they suffered an adverse employment action, 3) there was a causal connection between the two, and 4) the execution of a policy, custom, or practice of the Board caused the adverse action. Sharp v. City ofHouston, 164 F.3d 923, 932 (5th Cir. 1999). Section 1983's definition of adverse employment action, like Title VII's definition, includes ultimate employment decisions, such as hiring, granting leave, discharging, promoting, demoting, and compensating. Id. at 933 n.21.
Employees' § 1983 claim concerns the Board's alleged "failure to promote and pay at the appropriate rate" and "use of[an] inappropriate testto block [Employees'] rightful positions." Thus, Employees' § 1983 claim purportedly concerns promoting and compensating, activities which are characterized as ultimate employment actions under § 1983 and Title VII. Id. However, in light of the analysis supporting our determination that Employees have failed to make a prima facie showing that the Board's implementation of a new salary structure and reading requirement for the new Janitor position constituted an ultimate employment action under Title VII, see infra Part II, we conclude that Employees have failed to make a prima facie showing that the Board's alleged "failure to promote and pay [Employees] at the appropriate rate" and "use of [an] inappropriate test to block [Employees'] rightful positions" constitutes an ultimate employment action under § 1983.
We recognize that § 1983's definition of adverse employment action may be broader than Title VII's definition, which limits the meaning of adverse employment action to ultimate employment decisions. Sharp v. City ofHouston, 164 F.3d at 933 n.21. (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997), certdenied, 522 U.S. 932,118 S.Ct. 336,139 L.Ed.2d
-15-

260 (1997». For example, the definition of adverse employment action under § 1983 may include
reprimands and disciplinary filings, which do not qualify as ultimate employment decisions under
Title VIT. See id. Also, for purposes of a § 1983 claim, a transfer that is "equivalent to a demotion" can be an adverse employment action. Id. at 933. However, we need not consider whether the
Board's alleged "failure to promote and pay [Employees] at the appropriate rate" or its "use of [an]
inappropriate test to block [Employees'] rightful positions" meets § 1983's broadened definition of
adverse employment action, since Employees do not characterize such actions as a reprimand,
disciplinary action, or transfer "equivalent to a demotion."14
For these reasons, we conclude that Employees failed to demonstrate an adverse employment
action under § 1983. We therefore hold that the district court correctly decided that Employees failed to make a prima facie showing of retaliation under § 1983.
v
In sum, the district court did not err in deciding that the Board's implementation ofthe new
Janitor position, with its reading requirement and new salary structure, did not qualify as an "adverse
employment action" under Title Vll, or under § 1983. Nor did the district court err in concluding
that Employees failed to show that the Board's implementation ofa reading requirement for the new
14 Even though Employees argue that they had to accept lower hourly pay in order to move from Janitor I position to the new Janitor position, and that this was contrary to the Board's established policy for promoting employees to a step equal to or above their previous salary, plus 5 %, Employees do not characterize the move from Janitor I to the new Janitor position as a transfer "equivalent to a demotion." Even if Employees had argued that the move qualifies as a transfer "equivalent to a demotion," it is unlikely that we would agree to characterize it as such, since Employees presented no evidence suggesting that they felt compelled to request a transfer to the new Janitor position. See Sharp, 164 F.3d at 934 (reasoning that the jury reasonably could equate the employee's requested transfer with a demotion because the employer waited until the employee felt "compelled to request a transfer").
-16-

Janitor position selected applicants in a significantly discriminatory sex pattern. Because Employees failed to state a prima facie case ofretaliation or disparate impact employment discrimination under Title VII, and because Employees failed to state a prima facie case of retaliation under § 1983, we affirm the district court's grant of summary judgment in favor ofthe Board.
AFFIRMED.
-17-

 
 U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:98-cv-00974-JVP

Banks, et al v. EBR Parish School, et al Assigned to: Judge John V. Parker Demand: $0 Case in other court: 02-30090 Cause: 42:2000 Job Discrimination (Sex)

Date Filed: 11/18/1998 Date Terminated: 12/14/2001 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff Dorothy Banks

represented by Nancy Picard Robein, Urann & Lurye P.O. Box 6768 2540 Severn Avenue, Suite 400 Metairie, LA 70009-6768 504-885-9994 Fax: 504-885-9969 Email: npicard@rul-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Tina Brooks

represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Shirley Brown

represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Annette J Gray

represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Mary L Holmes
Plaintiff Annie Johnson
Plaintiff Amy Lane
Plaintiff Rosa Malveau
Plaintiff Dorothy McPipe
Plaintiff Alma Newman
Plaintiff Maggie Tucker

represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address)

Plaintiff Bertha Twine
Plaintiff Berthella Wallace
Plaintiff Edna Welch
Plaintiff Mary Williams
Plaintiff Nellie Williams
Plaintiff All Plaintiffs

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy Picard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea J. Wilkes 2604 Coliseum Street New Orleans, LA 70130-5762 504-891-5668 ATTORNEY TO BE NOTICED
Louis L. Robein, Jr. Robein, Urann & Lurye P.O. Box 6768 2540 Severn Avenue, Suite 400 Metairie, LA 70009-6768 504-885-9994 Fax: 504-885-9969 Email: lrobein@rul-law.com ATTORNEY TO BE NOTICED
Michael A. Piacsek Robein, Urann & Lurye P.O. Box 6768 2540 Severn Ave, #400 Metairie, LA 70009-6768 504-885-9994 TERMINATED: 08/29/2000

V.
Defendant East Baton Rouge Parish School Board

represented by Kenneth F. Sills Hammonds & Sills P. O. Box 65236 1111 S. Foster Drive, Suite C Baton Rouge, LA 70896 225-923-3462 Fax: 225-923-0315 FAX Email: ksills@hamsil.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy Hammonds & Sills P. O. Box 65236 1111 S. Foster Drive, Suite C Baton Rouge, LA 70896 225-923-3462 Fax: 225-923-0315 FAX

Defendant Ingrid Kelley
Defendant Warren L Pratt, Jr
Defendant Dr Press L Robinson, Sr
Defendant Jacqueline Mims

Email: kmurphy@hamsil.com ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED

Defendant Patrice Niquille TERMINATED: 05/28/1999
Defendant Patricia Hayne-Smith
Defendant Noel Hammatt
Defendant Roger Moser

represented by Kenneth F. Sills (See above for address) TERMINATED: 05/28/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) TERMINATED: 05/28/1999 ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED

Defendant Daniel R Henderson
Defendant Eldon R Ledoux
Defendant Dalton Devall
Defendant William P Black

represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED

Defendant James Manley
Defendant All Defendants
Interested Party United States of America

represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth F. Sills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen D. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by James Patrick Thompson United States Attorney's Office BR Middle District of Louisiana 777 Florida Street, Suite 208 Baton Rouge, LA 70801 225-389-0443 Fax: 225-389-0561 Email: USALAM.ECF@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/18/1998
11/19/1998

# Docket Text
1 COMPLAINT Filing Fee $ 150.00 Receipt # 65566 (bw) (Entered: 11/18/1998)
2 ORDER, set Scheduling Conference for 9:15 2/26/99 before CN , set Status Report deadline to 2/21/99 ( signed by Mag. Judge Christine Noland ), issued notices. (bw) (Entered: 11/19/1998)

11/25/1998 12/01/1998 12/18/1998 02/04/1999
02/10/1999
02/10/1999 02/16/1999 02/17/1999

SUMMONS(ES) issued for Jacqueline Mims, Patrice Niquille, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R Henderson, Eldon R Ledoux, Dalton Devall, William P Black, James Manley . Service deadline set for 12/9/98 (kdc) (Entered: 11/25/1998)
SUMMONS(ES) issued for EBR Parish School . Service deadline set for 12/15/98 (bw) (Entered: 12/02/1998)
3 SUMMONS Returned Executed as to EBR Parish School, Ingrid Kelley, Warren L Pratt Jr, Press L Robinson Sr, Jacqueline Mims, Patrice Niquille, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R Henderson, Eldon R Ledoux, Dalton Devall, William P Black, James Manley 12/7/98 (bw) (Entered: 12/21/1998)
4 12(B)6 OBJECTIONS/DEFENSES AND ANSWER to Complaint by EBR Parish School, Ingrid Kelley, Warren L Pratt Jr, Press L Robinson Sr, Jacqueline Mims, Patrice Niquille, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R Henderson, Eldon R Ledoux, Dalton Devall, William P Black, James Manley (Attorney Karen D. Murphy, Kenneth F. Sills); jury demand (bw) (Entered: 02/05/1999)
5 MOTION by EBR Parish School, Ingrid Kelley, Warren L Pratt Jr, Press L Robinson Sr, Jacqueline Mims, Patrice Niquille, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R Henderson, Eldon R Ledoux, Dalton Devall, William P Black, James Manley (Attorney ) to Dismiss ( Motion Hearing set for 10:00 3/19/99 ) (elp) Modified on 04/27/1999 (Entered: 02/11/1999)
6 MEMORANDUM by EBR Parish School, Ingrid Kelley, Warren L Pratt Jr, Press L Robinson Sr, Jacqueline Mims, Patrice Niquille, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R Henderson, Eldon R Ledoux, Dalton Devall, William P Black, James Manley in support of [5-1] motion to Dismiss by defendantsssssssssssss (elp) (Entered: 02/11/1999)
7 MOTION by All Plaintiffs to Extend Time to File Opposition to Dft's Motion to Dismiss Count III of Complaint (bw) (Entered: 02/17/1999)
8 ORDER granting [7-1] motion to Extend Time to File Opposition to Dft's Motion to Dismiss Count III of Complaint by All Plaintiffs, Response to Motion reset to 3/10/99 for [5-1] motion to Dismiss ( signed by Judge John V. Parker ), issued notices. (bw) (Entered: 02/17/1999)

02/19/1999 02/26/1999 02/26/1999 03/10/1999 03/18/1999
03/18/1999
03/18/1999
03/18/1999 03/31/1999 03/31/1999 03/31/1999 03/31/1999

9 STATUS REPORT by All Plaintiffs (elp) (Entered: 02/22/1999)
Status Conference held (nlor) (Entered: 02/26/1999)
10 ORDER ... status conf held on 2/26/99 ... cnsl for the dft shall file his motion to dismiss by 3/31/99 set Motion Filing deadline to 3/31/99 ( signed by Mag. Judge Christine Noland ), issued notices. (nlor) (Entered: 02/26/1999)
11 MEMORANDUM by All Plaintiffs in opposition to [5-1] motion to Dismiss by defendants (elp) (Entered: 03/11/1999)
12 MOTION by EBR Parish School, Ingrid Kelley, Warren L Pratt Jr, Press L Robinson Sr, Jacqueline Mims, Patrice Niquille, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R Henderson, Eldon R Ledoux, Dalton Devall, William P Black, James Manley to Continue Hearing Date on dft's motion to dismiss count 3 of complaint (bw) (Entered: 03/18/1999)
13 MEMORANDUM by EBR Parish School, Ingrid Kelley, Warren L Pratt Jr, Press L Robinson Sr, Jacqueline Mims, Patrice Niquille, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R Henderson, Eldon R Ledoux, Dalton Devall, William P Black, James Manley in support of [12-1] motion to Continue Hearing Date by defendants (bw) (Entered: 03/18/1999)
14 ORDER granting [12-1] motion to Continue Hearing Date by defendants...until such date as is set for the hearing of additional motion(s) to dismiss to be filed by 3/31/99 set Motion Filing deadline to 3/31/99 ( signed by Judge John V. Parker ), issued notices. (bw) (Entered: 03/18/1999)
Motion hearing re: [5-1] motion to Dismiss by defendants set at 10:00 5/7/99 (dcap) (Entered: 04/27/1999)
15 MOTION by All Defendants for Summary Judgment (re: no genuine issues of material fact) ( Motion Hearing set for 10:00 5/7/99 ) (bw) (Entered: 04/01/1999)
16 Statement of Facts by All Defendants . (bw) (Entered: 04/01/1999)
17 MEMORANDUM by All Defendants in support of [15-1] motion for Summary Judgment (re: no genuine issues of material fact) by All Defendants, [16-1] facts by All Defendants (bw) (Entered: 04/01/1999)
18 EXHIBIT(S) to [17-1] support memorandum by All Defendants

04/09/1999 04/09/1999
05/03/1999 05/03/1999 05/05/1999 05/05/1999
05/05/1999 05/06/1999 05/06/1999 05/07/1999
05/07/1999 05/18/1999

(bw) (Entered: 04/01/1999)
19 MOTION by All Plaintiffs to Extend Time to File Opposition to dfts' Motion for SJ (elp) (Entered: 04/09/1999)
20 ORDER granting [19-1] motion to Extend Time to File Opposition to dfts' Motion for SJ by All Plaintiffs, Response to Motion reset to 5/3/99 for [15-1] motion for Summary Judgment (re: no genuine issues of material fact) ( signed by Judge John V. Parker ), issued notices. (bw) (Entered: 04/09/1999)
21 RESPONSE by All Plaintiffs in opposition to [15-1] motion for Summary Judgment (re: no genuine issues of material fact) by All Defendants (bw) (Entered: 05/03/1999)
22 Statement of Facts by All Plaintiffs in Opposition to Dft's Motion for SJ (bw) (Entered: 05/03/1999)
23 MOTION by All Defendants for Leave to File Memorandum in Reply to Pla's Opposition to Dft's Motion for SJ (bw) (Entered: 05/06/1999)
24 MEMORANDUM by All Defendants in support of [23-1] motion for Leave to File Memorandum in Reply to Pla's Opposition to Dft's Motion for SJ by All Defendants (bw) (Entered: 05/06/1999)
Clerk holding Reply to Pla's Opposition to Dft's Motion for SJ (bw) (Entered: 05/06/1999)
25 MOTION by All Defendants for Protective Order (bw) (Entered: 05/06/1999)
26 ORDER [25-1] motion for Protective Order by All Defendants referred to Mag. Judge Christine Noland ( signed by Judge John V. Parker ), issued notices. (bw) (Entered: 05/06/1999)
27 ORDER granting [23-1] motion for Leave to File Memorandum in Reply to Pla's Opposition to Dft's Motion for SJ by All Defendants ( signed by Judge John V. Parker ), issued notices. (bw) (Entered: 05/07/1999)
28 REPLY by All Defendants to response to [15-1] motion for Summary Judgment (re: no genuine issues of material fact) by All Defendants (bw) (Entered: 05/07/1999)
29 MOTION by All Plaintiffs (Attorney ) for Leave to File Supplemental Opposition to Motion for SJ (elp) (Entered: 05/18/1999)

05/18/1999 05/19/1999 05/19/1999 05/26/1999
05/26/1999 05/27/1999 05/27/1999 05/27/1999 05/28/1999 05/28/1999
06/07/1999

Holding Supplemental Opposition (elp) (Entered: 05/18/1999)
30 ORDER granting [29-1] motion for Leave to File Supplemental Opposition to Motion for SJ by All Plaintiffs ( signed by Judge John V. Parker ), issued notices. (nlt) (Entered: 05/19/1999)
31 SUPPLEMENTAL MEMORANDUM by All Plaintiffs in opposition to [15-1] motion for Summary Judgment by All Defendants (nlt) (Entered: 05/19/1999)
32 NOTICE TO COUNSEL...This matter is hereby consolidated with CA 97-264-A and the motion by dfts (doc.# 15) for SJ and the motion by dfts to dismiss count III (doc.# 5) are hereby DEFERRED without date. The govt shall file its initial response to the allegations of plas in CA 98-974 within 30 days... set Notice of Compliance deadline to 6/26/99 ( signed by Judge John V. Parker ), issued notices. (bnw) (Entered: 05/27/1999)
Consolidated Lead Case (See Order, doc.# 32) ... consolidated with 97-264-A (bnw) Modified on 05/27/1999 (Entered: 05/27/1999)
33 MOTION by All Plaintiffs for Leave to File First Amended Complaint to Delete Party Dft Patrice Niquille (bnw) (Entered: 05/27/1999)
Motion(s) referred to Mag. Judge Christine Noland : [33-1] motion for Leave to File First Amended Complaint to Delete Party Dft Patrice Niquille (bnw) (Entered: 05/27/1999)
Clerk holding First Amended Complaint (bnw) (Entered: 05/27/1999)
34 ORDER granting [33-1] motion for Leave to File First Amended Complaint to Delete Party Dft Patrice Niquille by All Plaintiffs ( signed by Judge John V. Parker ), issued notices. (elp) (Entered: 06/01/1999)
35 AMENDED COMPLAINT (Answer due 6/7/99 for James Manley, for William P Black, for Dalton Devall, for Eldon R Ledoux, for Daniel R Henderson, for Roger Moser, for Noel Hammatt, for Patricia Hayne-Smith, for Jacqueline Mims, for Press L Robinson Sr, for Warren L Pratt Jr, for Ingrid Kelley, for EBR Parish School ) by All Plaintiffs amending [1-1] complaint...to eliminate dft Patrice Niquille (elp) (Entered: 06/01/1999)
36 ORDER granting [25-1] motion for Protective Order by All Defendants ( signed by Mag. Judge Christine Noland ), issued

06/25/1999 07/08/1999 07/08/1999 07/08/1999 07/12/1999 07/12/1999 07/30/1999
10/06/1999 10/06/1999
10/29/1999 11/12/1999 11/12/1999

notices. (bnw) (Entered: 06/08/1999)
37 RESPONSE by USA in support of [32-1] order (bnw) (Entered: 06/29/1999)
38 MOTION by All Defendants for Leave to File Dft's Comments to US' Response to 5/26/99 Notice to Counsel (bnw) (Entered: 07/08/1999)
39 MEMORANDUM by All Defendants in support of [38-1] motion for Leave to File Dft's Comments to US' Response to 5/26/99 Notice to Counsel by All Defendants (bnw) (Entered: 07/08/1999)
Clerk holding Dft's Comments to US' Response to 5/26/99 Notice to Counsel (bnw) (Entered: 07/08/1999)
40 ORDER granting [38-1] motion for Leave to File Dft's Comments to US' Response to 5/26/99 Notice to Counsel by All Defendants ( signed by Judge John V. Parker ), issued notices. (bnw) (Entered: 07/12/1999)
41 RESPONSE by All Defendants to [37-1] support response by USA (bnw) (Entered: 07/12/1999)
42 RULING denying [15-1] motion for Summary Judgment (re: no genuine issues of material fact) by All Defendants, denying [51] motion to Dismiss by defendants...In view of the govt's response that it is monitoring the proceedings in CV 98-974-A, the court will vacate the prior order consolidating these two matters ( signed by Judge John V. Parker ), issued notices. (bnw) (Entered: 07/30/1999)
Tele-conference held (bnw) (Entered: 10/06/1999)
43 ORDER...an unscheduled telephone conf held 10/6/99... the Court requested that cnsl for the parties submit a proposed discovery schedule no later than 10/29/99... set Notice of Compliance deadline to 10/29/99 ( signed by Mag. Judge Christine Noland ), issued notices. (bnw) (Entered: 10/06/1999)
44 SCHEDULING ORDER as RESPONSE by All Plaintiffs, All Defendants in support of [43-1] order (bnw) (Entered: 10/29/1999)
45 MOTION by All Plaintiffs (Attorney Louis L. Robein Jr.) to Substitute Michael A. Piacsek as Attorney (nlt) (Entered: 11/12/1999)
Motion(s) referred to Mag. Judge Christine Noland : [45-1]

11/15/1999 11/17/1999
02/03/2000 02/03/2000 02/04/2000 02/07/2000 02/11/2000 02/18/2000 03/17/2000 03/17/2000 04/05/2000

motion to Substitute Michael A. Piacsek as Attorney (nlt) (Entered: 11/12/1999)
46 ORDER granting [45-1] motion to Substitute Michael A. Piacsek as Attorney by All Plaintiffs in place of Mark A. Sweet; Added Michael A. Piacsek ( signed by Mag. Judge Christine Noland ), issued notices. (bnw) (Entered: 11/16/1999)
47 ORDER... set Amended Pleadings deadline to 1/31/00 , set Discovery deadline, except experts, to 4/1/00 and all discovery motions shall be filed by this date also , set Expert Witness List deadline to 2/1/00 for plas and 3/1/00 for dfts ...Expert reports must be submitted to opposing parties as follows: Plas 3/1/00 and Dfts 4/30/00 set Experts deposed deadline for 6/1/00 , set Dispositive Motion Filing deadline to 7/1/00 , set Telephone Conference for 10:00 3/3/00 before CN ...Plas' cnsl shall initiate the call to chambers... ( signed by Mag. Judge Christine Noland ), issued notices. (bnw) (Entered: 11/18/1999)
48 MOTION by All Plaintiffs to Continue Pretrial Deadlines (elp) (Entered: 02/03/2000)
Motion(s) referred to Mag. Judge Christine Noland : [48-1] motion to Continue Pretrial Deadlines (elp) (Entered: 02/03/2000)
49 ORDER granting [48-1] motion to Continue Pretrial Deadlines for 2 months except for amending pleadings & adding new claims by All Plaintiffs ( signed by Mag. Judge Christine Noland ), issued notices. (kdc) (Entered: 02/04/2000)
50 NOTICE by All Plaintiffs to take deposition of James Manley, et.al. (bnw) (Entered: 02/08/2000)
51 ORDER, reset Telephone Conference for 11:00 3/17/00 before CN Pla's cnsl shall initiate the call to chambers ( signed by Mag. Judge Christine Noland ), issued notices. (bnw) (Entered: 02/11/2000)
52 NOTICE by All Plaintiffs to take deposition of James Broussard, et.al. (bnw) (Entered: 02/22/2000)
Tele-conference held (dcap) (Entered: 03/17/2000)
53 ORDER..the record in this matter will be reviewed 9/7/00 to determine if a pretrial conf needs to be set ( signed by Mag. Judge Christine Noland ), issued notices. (dcap) (Entered: 03/17/2000)
54 NOTICE by All Plaintiffs to take deposition of Christine Arab,

04/05/2000 05/03/2000 05/31/2000 06/02/2000
06/14/2000 07/14/2000 08/04/2000 08/25/2000 08/25/2000 08/29/2000
09/05/2000 09/15/2000 09/15/2000

Dalton Devall, Robert Cooper, James Broussard, Roger Moser, Patricia Hayne-Smith (elp) (Entered: 04/05/2000)
55 RETURN on Subpoena as to James Broussard (elp) (Entered: 04/05/2000)
56 NOTICE by All Plaintiffs to take deposition of Christine Arab and Roger Moser (bnw) (Entered: 05/04/2000)
57 MOTION by All Defendants to Continue pretrial deadlines (nlt) (Entered: 06/01/2000)
58 ORDER granting [57-1] motion to Continue pretrial deadlines by All Defendants, reset Discovery deadline to 9/1/00 , reset Dispositive Motion Filing deadline to 9/15/00 No other extensions will be allowed ( signed by Mag. Judge Christine Noland ), issued notices. (bnw) (Entered: 06/02/2000)
59 NOTICE by All Plaintiffs to take deposition of Jacqueline Mims (elp) (Entered: 06/14/2000)
60 NOTICE by All Plaintiffs to take deposition of Christine Arab (elp) (Entered: 07/14/2000)
61 NOTICE by All Plaintiffs to take deposition of Jacqueline Mims (dcap) (Entered: 08/07/2000)
62 MOTION by All Plaintiffs to Substitute Attorney Andrea Goetze in place of Michael A. Piacsek (bnw) (Entered: 08/28/2000)
Motion(s) referred to Mag. Judge Christine Noland : [62-1] motion to Substitute Attorney Andrea Goetze in place of Michael A. Piacsek (bnw) (Entered: 08/28/2000)
63 ORDER granting [62-1] motion to Substitute Attorney Andrea Goetze in place of Michael A. Piacsek by All Plaintiffs terminated attorney Michael A. Piacsek for All Plaintiffs Added Andrea J. Goetze ( signed by Mag. Judge Christine Noland ), issued notices. (bnw) (Entered: 08/29/2000)
64 NOTICE by All Plaintiffs to take deposition of Maxine McCormick (bnw) (Entered: 09/06/2000)
65 MOTION by All Defendants for Summary Judgment of Dfts' Right to Qualified Immunity ( Motion Hearing set for 10:00 10/20/00 ) (bnw) (Entered: 09/19/2000)
66 Statement of Uncontested Facts by All Defendants . (bnw) (Entered: 09/19/2000)

09/15/2000
09/15/2000 09/15/2000
09/15/2000 09/15/2000
09/15/2000 09/15/2000
09/15/2000 09/15/2000 09/15/2000 09/15/2000
09/25/2000 09/26/2000

67 MEMORANDUM by All Defendants in support of [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity by All Defendants, [66-1] facts by All Defendants (bnw) (Entered: 09/19/2000)
68 EXHIBIT(S) to [67-1] support memorandum by All Defendants (bnw) (Entered: 09/19/2000)
69 MOTION by All Defendants for Summary Judgment as to Claims of Dorothy Banks, Bertha Twine and Amy Lane ( Motion Hearing set for 10:00 10/20/00 ) (bnw) (Entered: 09/19/2000)
70 Statement of Uncontested Facts by All Defendants . (bnw) (Entered: 09/19/2000)
71 MEMORANDUM by All Defendants in support of [69-1] motion for Summary Judgment as to Claims of Dorothy Banks, Bertha Twine and Amy Lane by All Defendants, [70-1] facts by All Defendants (bnw) (Entered: 09/19/2000)
72 EXHIBIT(S) to [71-1] support memorandum by All Defendants (bnw) (Entered: 09/19/2000)
73 MOTION by All Defendants for Summary Judgment re: plas' claims against the School Board regarding its liability under Title VII, 42 USC 2000e... ( Motion Hearing set for 10:00 10/20/00 ) (bnw) (Entered: 09/19/2000)
74 Statement of Uncontested Facts by All Defendants . (bnw) (Entered: 09/19/2000)
75 MEMORANDUM by All Defendants in support of [73-1] motion for Summary Judgment by All Defendants, [74-1] facts by All Defendants (bnw) (Entered: 09/19/2000)
76 EXHIBIT(S) to [75-1] support memorandum by All Defendants (bnw) (Entered: 09/19/2000)
77 NOTICE of Hearing: Motion Hearing set for 10:00 10/20/00 for [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity, set for 10:00 10/20/00 for [69-1] motion for Summary Judgment as to Claims of Dorothy Banks, Bertha Twine and Amy Lane, set for 10:00 10/20/00 for [73-1] motion for Summary Judgment (bnw) (Entered: 09/19/2000)
78 MOTION by All Plaintiffs to Extend Time to File Opposition to Dfts' Three Motions for SJ (bnw) (Entered: 09/25/2000)
79 ORDER granting [78-1] motion to Extend Time to File

10/03/2000
11/15/2000
11/15/2000 11/15/2000 11/15/2000 11/15/2000 11/15/2000 11/15/2000 11/15/2000 11/15/2000

Opposition to Dfts' Three Motions for SJ by All Plaintiffs, Response to Motion reset to 11/15/00 for [73-1] motion for Summary Judgment, reset to 11/15/00 for [69-1] motion for Summary Judgment as to Claims of Dorothy Banks, Bertha Twine and Amy Lane, reset to 11/15/00 for [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity ( signed by Judge John V. Parker ), issued notices. (bnw) (Entered: 09/26/2000)
80 ORDER...dfts motions for SJ presently noticed for 10/20/00 are reassigned for 12/1/00 at 10:00... Motion Hearing set for 10:00 12/1/00 for [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity, set for 10:00 12/1/00 for [69-1] motion for Summary Judgment as to Claims of Dorothy Banks, Bertha and Amy Lane, set for 10:00 12/1/00 for [73-1] motion for Summary Judgment ( signed by Judge John V. Parker ), issued notices. (bnw) (Entered: 10/03/2000)
81 RESPONSE by All Plaintiffs in opposition to [69-1] motion for Summary Judgment as to Claims of Dorothy Banks, Bertha Twine and Amy Lane by All Defendants (bnw) (Entered: 11/15/2000)
82 MEMORANDUM by All Plaintiffs in opposition to [73-1] motion for Summary Judgment by All Defendants (bnw) (Entered: 11/15/2000)
83 EXHIBIT(S) to [82-1] opposition memorandum by All Plaintiffs (bnw) (Entered: 11/15/2000)
84 RESPONSE by All Plaintiffs in opposition to [74-1] facts by All Defendants (bnw) (Entered: 11/15/2000)
85 RESPONSE by All Plaintiffs in opposition to [70-1] facts by All Defendants (bnw) (Entered: 11/15/2000)
86 RESPONSE by All Plaintiffs in opposition to [66-1] facts by All Defendants (bnw) (Entered: 11/15/2000)
87 RESPONSE by All Plaintiffs in opposition to [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity by All Defendants (bnw) (Entered: 11/15/2000)
88 EXHIBIT(S) to [87-1] opposition response by All Plaintiffs (bnw) (Entered: 11/15/2000)
89 ORDER [73-1] motion for Summary Judgment by All Defendants referred to Mag. Judge Christine Noland, [69-1] motion for Summary Judgment as to Claims of Dorothy Banks,

11/22/2000 11/22/2000 11/22/2000
11/28/2000 11/28/2000 11/28/2000 11/28/2000 03/09/2001 03/09/2001

Bertha Twine and Amy Lane by All Defendants referred to Mag. Judge Christine Noland, [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity by All Defendants referred to Mag. Judge Christine Noland ( signed by Judge John V. Parker ), issued notices. (bnw) (Entered: 11/16/2000)
90 MOTION by All Defendants for Leave to File Reply Memo to Plas' Oppositions to Dfts' Motions for SJ (bnw) Modified on 11/27/2000 (Entered: 11/27/2000)
91 MEMORANDUM by All Defendants in support of [90-1] motion for Leave to File Reply Memo to Plas' Oppositions to Dfts' Motions for SJ by All Defendants (bnw) Modified on 11/27/2000 (Entered: 11/27/2000)
Clerk holding Reply Memos to Plas' Opposition to Dfts' Motion for SJ...1) Dismissing Claims Under Title VII; 2) ...on Dfts' Right to Qualified Immunity; 3) ...as to the Claims of Dorothy Banks, Bertha Twine and Amy Lane (bnw) (Entered: 11/27/2000)
92 ORDER granting [90-1] motion for Leave to File Reply Memo to Plas' Oppositions to Dfts' Motions for SJ by All Defendants ( signed by Mag. Judge Christine Noland ), issued notices. (bnw) (Entered: 11/28/2000)
93 REPLY by All Defendants to response to [73-1] motion for Summary Judgment Dismissing Claims Under Title VII by All Defendants (bnw) (Entered: 11/29/2000)
94 REPLY by All Defendants to response to [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity by All Defendants (bnw) (Entered: 11/29/2000)
95 REPLY by All Defendants to response to [69-1] motion for Summary Judgment as to Claims of Dorothy Banks, Bertha Twine and Amy Lane by All Defendants (bnw) (Entered: 11/29/2000)
96 ORDER vacating [89-1] order referring motions for a report and recommendation ... ( signed by Judge John V. Parker ), issued notices. (elp) (Entered: 03/09/2001)
Motion(s) no longer referred: [73-1] motion for Summary Judgment, [69-1] motion for Summary Judgment as to Claims of Dorothy Banks, Bertha Twine and Amy Lane, [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity (elp) (Entered: 03/09/2001)

06/05/2001 06/25/2001 07/18/2001
07/27/2001 07/30/2001
07/30/2001 08/06/2001 12/12/2001 12/14/2001

97 RULING granting [73-1] motion for Summary Judgment by All Defendants...and this action shall be dismissed... ( signed by Judge John V. Parker ), issued notices. (elp) (Entered: 06/05/2001)
98 AMENDMENT TO RULING...this court's ruling of 6/5/01 (doc.97) is hereby amended so as to strike that portion stating that the case is dismissed ( signed by Judge John V. Parker ), issued notices. (bnw) (Entered: 06/25/2001)
99 ORDER...this court hereby informs the parties that it is considering the propriety of granting summary judgment on the pla's remaining claim under 42:1983 in favor of all dfts, including EBRP School Board...plas shall respond by submitting a memo on the above issue by 7/30/01...dfts may also submit briefs by that date... ( signed by Judge John V. Parker ), issued notices. (kmk) (Entered: 07/18/2001)
100 MOTION by All Plaintiffs (Attorney ) to Extend Time to Submit a Memo Pertaining to the Propriety of Granting SJ on Pla's Remaining Claim in favor of All Dfts (kmk) (Entered: 07/27/2001)
101 ORDER granting [100-1] motion to Extend Time to Submit a Memo Pertaining to the Propriety of Granting SJ on Pla's Remaining Claim in favor of All Dfts by All Plaintiffs...Plas are granted an additional 10 days or until 8/9/01 to submit a memo pertaining to the propriety of granting SJ on Pla's remaining claim...( signed by Judge John V. Parker ), issued notices. (kmk) (Entered: 07/30/2001)
102 MEMORANDUM by All Defendants in support of [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity by All Defendants (kmk) (Entered: 08/08/2001)
103 MEMORANDUM by All Plaintiffs in opposition to [65-1] motion for Summary Judgment of Dfts' Right to Qualified Immunity by All Defendants (kmk) (Entered: 08/08/2001)
104 RULING...judgment is hereby entered, dismissing the plas' remaining claim of sex discrimination under 42 USC:1983 and this action shall be dismissed...( signed by Judge John V. Parker ), issued notices. (kmk) (Entered: 12/12/2001)
105 JUDGMENT...for written reasons assigned and filed herein on 6/5/01 and on 12/12/01...It is ordered that judgment be entered herein dismissing this action...( signed by Judge John V. Parker ) (kmk) (Entered: 12/14/2001)

12/14/2001 01/14/2002
01/15/2002
01/31/2002 02/15/2002 04/04/2002
03/14/2003 03/24/2003

Case closed (kmk) (Entered: 12/14/2001)
106 NOTICE OF APPEAL by Dorothy Banks, Tina Brooks, Shirley Brown, Annette J Gray, Mary L Holmes, Annie Johnson, Amy Lane, Rosa Malveau, Dorothy McPipe, Alma Newman, Maggie Tucker, Bertha Twine, Berthella Wallace, Edna Welch, Mary Williams, Nellie Williams ... from the judgment entered on 12/14/01. FILING FEE $ 105.00 RECEIPT 74927 Appeal record due on 2/13/02. Copies of NOA mailed to USCA, N. Picard, A. Wilkes, K. Sills, J. Thompson (hcj) (Entered: 01/14/2002)
Certified and transmitted Record on Appeal to U.S. Court of Appeals: [106-1] appeal by Nellie Williams, Mary Williams, Edna Welch, Berthella Wallace, Bertha Twine, Maggie Tucker, Alma Newman, Dorothy McPipe, Rosa Malveau, Amy Lane, Annie Johnson, Mary L Holmes, Annette J Gray, Shirley Brown, Tina Brooks, Dorothy Banks (hcj) (Entered: 01/15/2002)
USCA Case Number Re: [106-1] appeal by Nellie Williams, Mary Williams, Edna Welch, Berthella Wallace, Bertha Twine, Maggie Tucker, Alma Newman, Dorothy McPipe, Rosa Malveau, Amy Lane, Annie Johnson, Mary L Holmes, Annette J Gray, Shirley Brown, Tina Brooks, Dorothy Banks USCA NUMBER: 02-30090 (hcj) (Entered: 02/01/2002)
Transcript requested [106-1] appeal by Nellie Williams, Mary Williams, Edna Welch, Berthella Wallace, Bertha Twine, Maggie Tucker, Alma Newman, Dorothy McPipe, Rosa Malveau, Amy Lane, Annie Johnson, Mary L Holmes, Annette J Gray, Shirley Brown, Tina Brooks, Dorothy Banks (No hearings) (hcj) (Entered: 02/15/2002)
107 MANDATE OF USCA (certified copy) Re: [106-1] appeal by Nellie Williams, Mary Williams, Edna Welch, Berthella Wallace, Bertha Twine, Maggie Tucker, Alma Newman, Dorothy McPipe, Rosa Malveau, Amy Lane, Annie Johnson, Mary L Holmes, Annette J Gray, Shirley Brown, Tina Brooks, Dorothy Banks Decision of COA: Dismissed as of 4/2/02 (hcj) (Entered: 04/05/2002)
108 MANDATE OF USCA (certified copy) Re: [106-1] appeal by plaintiffs Decision of COA: Affirmed (hcj) (Entered: 03/14/2003)
Record on Appeal returned from U.S. Court of Appeals: [106-1] appeal (hcj) (Entered: 03/25/2003)