United States Court of Appeals

Fifth Circuit

FILED

July 11, 2007

Charles R. Fulbruge III

Clerk

REVISED September 5, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30453

ERMA MCCOY,

Plaintiff-Appellant,

versus

CITY OF SHREVEPORT,

Defendant-Appellee.

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

Appeal from the United States District Court

for the Eastern District of Louisiana

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

Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Erma McCoy, a former lieutenant with the

Shreveport Police Department (SPD), appeals from the district

court’s summary-judgment dismissal of her employment discrimination

suit against the City of Shreveport (the City). We affirm.

I. FACTS & PROCEEDINGS

Erma McCoy, a black female, worked for the SPD as a permanent

police officer from December 1981 until her retirement in December

2003. McCoy attained the rank of lieutenant in February 2002. In

July 2003, McCoy filed a grievance with SPD’s Internal Affairs

Bureau (IAB) alleging that a subordinate officer, Sergeant Ed
2

Jackson, who is white, harassed her by twice throwing wadded-up

paper in her face and by repeatedly entering her office only to

stare at her and laugh in mocking derision. As McCoy’s grievance

involved allegations of workplace harassment, SPD also forwarded it

to the personnel department of the City for its separate review.

Both the City and SPD concluded that Sergeant Jackson’s conduct did

not constitute harassment, and City personnel recommended that both

Sergeant Jackson and McCoy be counseled about workplace

“horseplay.”

The following month, Captain Rick Walker, McCoy’s supervisor,

informed her that her harassment complaint had not been

substantiated and cautioned her against future workplace horseplay.

When she received this news and caution, McCoy became extremely

upset and questioned the thoroughness with which the SPD and the

City had investigated her complaint. Captain Walker told McCoy

that she could speak to the Chief of Police if she was dissatisfied

with the way the investigation had been conducted. She declined,

however, then began crying uncontrollably, reportedly telling

Captain Walker that she “knew it would come back this direction,

this way and that’s the reason why we have violence in the

workplace and that if they’re not going to take care of it, then

I’ll take care of it.” McCoy denies making this statement but

admits that she was in an emotional state and acknowledges telling

Captain Walker that she would “not take this lying down.” McCoy

also remembers Captain Walker being present later when she told a
3

fellow black lieutenant, who had inquired why McCoy was so upset,

that “we are not officers, we are not sergeants . . . or

lieutenants,” but rather “we are black officers . . . black

sergeants, and black lieutenants, and . . . each time we move up,

we become less.” McCoy eventually asked to be relieved of duty so

that she could see her doctor about the emotional distress she was

experiencing.

Captain Walker consulted with two SPD lieutenants who had

witnessed McCoy’s reaction, and decided that, out of concern for

McCoy’s safety (and possibly that of others), he should retrieve

her gun before she left the police station. McCoy surrendered her

gun before leaving work. Captain Walker then informed SPD

Assistant Chief Charlie Owens of the events surrounding McCoy’s

departure. Owens indicated his belief that, because Captain Walker

had taken McCoy’s gun, he effectively had placed her on

administrative (or “departmental”) leave. Owens instructed Captain

Walker to have McCoy sign the paperwork necessary to process an

administrative leave. The next morning, Captain Walker went to

McCoy’s home, had her fill out the necessary forms, and retrieved

her badge. 

At some time during the next month, IAB reclassified McCoy’s

leave as extended sick leave. Captain Walker was informed that his

(and Assistant Chief Owens’s) designation of McCoy’s leave as

administrative leave was a mistake. McCoy was paid her full salary

throughout her leave. 
1 Ironically, at the time McCoy informed SPD of her decision

to retire, Sergeant Jackson had retired.

4

In December 2003, McCoy informed the SPD that she had decided

to retire at the end of the month. She stated that, despite her

admiration for the SPD leadership and her general desire to

continue serving as a police officer, her health considerations

would not allow her to “go on under the circumstances.”

Specifically, she mentioned concerns about “constantly having to

face Ed Jackson, constantly having to look behind my back,

constantly having to come in and explain why I did certain things

as a lieutenant doing my job.”1 At the time that McCoy submitted

her retirement letter, her doctor had not yet released her to

return to work, and she still had several months of paid sick leave

accumulated.

McCoy filed suit in Louisiana state court in August 2004,

alleging that the City had (1) discriminated against her on grounds

of race and sex and had retaliated against her, both acts allegedly

taken in violation of Title VII, the First Amendment, and Louisiana

law, and (2) intentionally caused her emotional distress, in

violation of Louisiana Civil Code article 2315. The City removed

the case to the district court on federal question jurisdiction.

The federal court eventually granted summary judgment in favor of

the City on (1) McCoy’s discrimination and retaliation claims,

because, inter alia, she had suffered no adverse employment action
2 Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 416 (5th

Cir. 2006).

3 Id.

4 Louisiana’s anti-discrimination statute, LA. REV. STAT.

ANN.§ 23:301 et seq., is “substantively similar” to Title VII,

and Louisiana courts routinely look to the federal jurisprudence

for guidance. Trahan v. Rally's Hamburgers Inc., 696 So. 2d 637,

641 (La. App. 1st Cir. 1997). Consequently, the outcome of

McCoy’s statutory discrimination and retaliation claims will be

the same under the federal and state statutes. We therefore

analyze the issues only under the applicable federal precedents.

5

and the conduct of which she complained was not sufficiently severe

or pervasive to constitute a hostile work environment; and (2) her

Louisiana tort claim, because she could not show conduct by the SPD

that met the legal standard for intentional infliction of emotional

distress. McCoy timely filed her notice of appeal.

II. ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo.

2 Summary

judgment is proper only when the movant can demonstrate that there

is no genuine issue of material fact and that she is entitled to

judgment as a matter of law.3

B. Merits

1. McCoy’s Title VII Claims

a. Applicable Title VII Law4
5 The district court ruled that, because McCoy signed her

EEOC Charge Questionnaires on June 14, 2004, any of her claims

that arose before August 15, 2003 (300 days earlier) were timebarred. The court therefore dismissed McCoy’s claims based on

Sergeant Jackson’s reported paper-throwing harassment, which

allegedly occurred on June 12 and June 26, 2003. Accordingly,

the district court considered those incidents only as part of the

totality of the circumstances relevant to McCoy’s hostile work

environment claim. McCoy does not challenge this ruling on

appeal.

6 411 U.S. 792, 802 (1973).

7 See Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir.

2005).

6

Assuming a plaintiff has exhausted his administrative

remedies,5 he may prove a claim of intentional discrimination or

retaliation either by direct or circumstantial evidence. We

analyze cases built on the latter, like this one, under the

framework set forth in McDonnell Douglas Corp. v. Green.

6 Under

that framework, the plaintiff must first establish a prima facie

case of discrimination, which requires a showing that the plaintiff

(1) is a member of a protected group; (2) was qualified for the

position at issue; (3) was discharged or suffered some adverse

employment action by the employer; and (4) was replaced by someone

outside his protected group or was treated less favorably than

other similarly situated employees outside the protected group.7

To establish a prima facie case of retaliation, the plaintiff must

establish that: (1) he participated in an activity protected by

Title VII; (2) his employer took an adverse employment action
8 Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575

(5th Cir. 2003); Gee v. Principi, 289 F.3d 342, 345 (5th Cir.

2002). 

9 See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222

(5th Cir. 2000) (discrimination); Gee, 289 F.3d at 345

(retaliation).

10 Russell, 235 F.3d at 222.

11 See id.

12 Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

7

against him; and (3) a causal connection exists between the

protected activity and the adverse employment action.8

If the plaintiff makes a prima facie showing, the burden then

shifts to the employer to articulate a legitimate,

nondiscriminatory or nonretaliatory reason for its employment

action.9 The employer's burden is only one of production, not

persuasion, and involves no credibility assessment.10 If the

employer meets its burden of production, the plaintiff then bears

the ultimate burden of proving that the employer's proffered reason

is not true but instead is a pretext for the real discriminatory or

retaliatory purpose.11 To carry this burden, the plaintiff must

rebut each nondiscriminatory or nonretaliatory reason articulated

by the employer.12

b. Adverse Employment Action

The district court based its summary judgment dismissal of

McCoy’s race and sex discrimination and retaliation claims on her

inability to demonstrate that she suffered a legally actionable
13 See Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir.

2003)(Title VII discrimination); Fierros v. Tex. Dep’t of Health,

274 F.3d 187) (5th Cir. 2001) (Title VII retaliation).

14 Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771

(5th Cir. 2001).

15 Id. at 771-72; see also Haley v. Alliance Compressor LLC,

391 F.3d 644, 650 (5th Cir. 2004).

8

“adverse employment action.” Without proving such an action, McCoy

cannot make the necessary prima facie cases of discrimination or

retaliation.13 McCoy argues on appeal that the court erroneously

failed to recognize that the City took adverse employment actions

both by (1) creating a hostile work environment that caused her

“constructive discharge” and (2) taking her gun and badge and

placing her on administrative leave.

i. Constructive Discharge

“A constructive discharge occurs when the employer makes

working conditions so intolerable that a reasonable employee would

feel compelled to resign.”14 In determining whether an employer's

actions constitute a constructive discharge, we examine the

following relevant factors: 

(1) demotion; (2) reduction in salary; (3) reduction in

job responsibilities; (4) reassignment to menial or

degrading work; (5) badgering, harassment, or humiliation

by the employer calculated to encourage the employee's

resignation; or (6) offers of early retirement that would

make the employee worse off whether the offer were

accepted or not.15
16 Haley, 391 F.3d at 650.

17 See id.

18 See Hunt, 277 F.3d at 772 (affirming the district court's

grant of summary judgment on constructive discharge when the

employee felt demeaned by her reassignment to the night shift

upon her return from medical leave); Brown v. Bunge Corp., 207

F.3d 776, 782-83 (5th Cir. 2000) (affirming a grant of summary

judgment for the employer even when employee had been demoted and

9

This inquiry is an objective, “reasonable employee,” test under

which we ask “whether a reasonable person in the plaintiff's shoes

would have felt compelled to resign.”16

Even considering the summary judgment evidence here in the

light most favorable to McCoy, we are satisfied that a reasonable

employee in her position would not have felt compelled to resign.

McCoy was not demoted, suffered no reduction in salary, and was

paid in full for the entirety of her leave. She was relieved of

her job responsibilities, but only at her own request, and SPD

never indicated that she would not be reinstated to her previous

position when cleared medically to return to work. She was not

reassigned to menial or degrading work, and she never received an

offer of early retirement. The only actions taken by the SPD in

connection with this matter were (1) counseling McCoy against

workplace horseplay and (2) retrieving her badge and gun and

placing her on administrative leave. These actions, when viewed in

the context of the circumstances surrounding them, were not

“calculated [by SPD] to encourage [McCoy’s] resignation”17 and do

not meet the established standard for a constructive discharge.18
received a reduction in job responsibilities upon his return to

work); McKethan v. Tex. Farm Bureau, 996 F.2d 734, 741 (5th Cir.

1993) (affirming summary judgment for the employer when the

employee claimed he had been publicly ridiculed and admonished

but failed to allege any of the other constructive discharge

factors). 

19 Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir.

2005).

20 Id.

21 See Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (“[S]imple teasing, offhand comments, and isolated

10

McCoy does allege that she suffered badgering and harassment

by Sergeant Jackson and that SPD and the City permitted it to go

unchecked. Such unremediated harassment may create a hostile work

environment and cause a constructive discharge, but only if it is

“severe or pervasive” and “create[s] an environment that a

reasonable person would find hostile or abusive.”19 “Whether an

environment is hostile or abusive depends on the totality of the

circumstances, including factors such as the frequency of the

conduct, its severity, the degree to which the conduct is

physically threatening or humiliating, and the degree to which the

conduct unreasonably interferes with an employee's work

performance.”20

Sergeant Jackson’s conduct, even though undoubtedly offensive

to McCoy, consisted of little more than occasional boorish remarks

and childish horseplay. The district court correctly held that

such conduct was not sufficiently severe or pervasive to create an

objectively hostile or abusive work environment.21 Moreover, at the
incidents, (unless extremely serious) will not amount to

discriminatory charges.”) (citing Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 82 (1998)); see also Hockman v.

Westward Commc’ns, LLC, 407 F.3d 317, 328 (5th Cir. 2004).

22 Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657

(5th Cir. 2002).

11

time McCoy chose to retire, Sergeant Jackson had already left the

SPD and posed no continuing threat to McCoy’s mental well-being or

work-place level of comfort. McCoy also acknowledged in her

retirement letter that she respected and admired the Chief of

Police and that, but for her health concerns, she would look

favorably on the prospect of returning to work for the SPD. Based

on the summary judgment record before us, we are convinced that

McCoy retired voluntarily, not as the result of a constructive

discharge. As no reasonable employee in McCoy’s position would

have felt compelled to resign, she was not constructively

discharged. 

ii. Administrative Leave

McCoy also contends that the SPD took an adverse employment

action against her when Captain Walker retrieved her gun and badge

and placed her on administrative leave. We have historically held

that, for all Title VII claims, “[a]dverse employment actions

include only ultimate employment decisions such as hiring, granting

leave, discharging, promoting, or compensating.”22 Under this

standard, the district court properly held that placing McCoy on

paid leave —— whether administrative or sick —— was not an adverse
23 Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000)

(holding that police officer placed on paid administrative leave

did not suffer an adverse employment action). 

24 126 S. Ct. 2405 (2006).

12

employment action.23 In the recent case of Burlington Northern &

Santa Fe Railway Co. v. White,

24 however, the Supreme Court

abrogated our approach in the retaliation context in favor of the

standard used in the Seventh and D.C. Circuits, which defines an

adverse employment action as any action that “might well have

dissuaded a reasonable worker from making or supporting a charge of

discrimination.” We must therefore analyze the effect of

Burlington Northern on this case.

(1) McCoy’s Discrimination Claims

In Burlington Northern, the Court expressly limited its

holding to Title VII retaliation claims:

The underscored words in the substantive [antidiscrimination] provision —— “hire,” “discharge,”

“compensation, terms, conditions, or privileges of

employment,” “employment opportunities,” and “status as

an employee” —— explicitly limit the scope of that

provision to actions that affect employment or alter the

conditions of the workplace. No such limiting words

appear in the anti-retaliation provision. Given these

linguistic differences, the question here is not whether

identical or similar words should be read in pari materia

to mean the same thing. Rather, the question is whether

Congress intended its different words to make a legal

difference. We normally presume that, where words differ

as they differ here, “‘Congress acts intentionally and

purposely in the disparate inclusion or exclusion.’”

There is strong reason to believe that Congress

intended the differences that its language suggests, for

the two provisions differ not only in language but in

purpose as well. The anti-discrimination provision seeks
25 Id. at 2411-13 (emphasis added) (internal citations

omitted).

26 Accord Dendinger v. Ohio, 207 F. App’x 521, 527 n.6

(6th Cir. 2006) (unpublished opinion) (noting that Burlington

Northern’s broadening of the definition of “adverse employment

action” affects only retaliation claims).

13

a workplace where individuals are not discriminated

against because of their racial, ethnic, religious, or

gender-based status. The anti-retaliation provision

seeks to secure that primary objective by preventing an

employer from interfering (through retaliation) with an

employee's efforts to secure or advance enforcement of

the Act's basic guarantees. The substantive provision

seeks to prevent injury to individuals based on who they

are, i.e., their status. The anti-retaliation provision

seeks to prevent harm to individuals based on what they

do, i.e., their conduct.

. . . . 

Thus, purpose reinforces what language already

indicates, namely, that the anti-retaliation provision,

unlike the substantive provision, is not limited to

discriminatory actions that affect the terms and

conditions of employment.25

Even though our precedent recognizing only “ultimate employment

decisions” as actionable adverse employment actions remains

controlling for Title VII discrimination claims and therefore

continues to justify summary judgment dismissal of McCoy’s

discrimination claims,26 her retaliation claims requires a closer

look post-Burlington Northern.

(2) McCoy’s Retaliation Claims

McCoy contends that, by retrieving her gun and badge and

placing her on administrative leave, SPD took actions that might

well dissuade a reasonable officer from filing a charge of

discrimination. McCoy characterizes those actions as the
27 Id. at 2415 (“[T]he significance of any given act of

retaliation will often depend on the particular circumstances.”).

14

functional equivalent of a discharge, because they remove “the

essence of being a Police Officer.” The City, on the other hand,

contends that SPD’s actions, when viewed in context, do not meet

the standard set forth in Burlington Northern. Specifically, the

City points out that McCoy (1) voluntarily requested leave, (2)

made troubling statements that raised legitimate safety concerns,

and (3) was paid throughout her leave. As such, insists the City,

actions like SPD’s should not dissuade a reasonable police officer

in McCoy’s situation from making a discrimination complaint.

In Burlington Northern, the Court recognized that arguably

adverse employment actions must be viewed in context.27 In this

case, the record makes clear that McCoy did ask to leave work to

see her doctor and —— presumably acting on her doctor’s advice ——

never attempted to return to work. There is no evidence that SPD

would have placed her on administrative leave had she been able to

continue working, or that SPD would have refused to reinstate her

had she sought to return to work after her leave. The record also

makes clear, however, that McCoy did not volunteer to surrender her

gun and badge and did not designate her own leave as

administrative: SPD made those decisions and took those actions on

its own. As McCoy contends that those actions (and not her leave

generally) constitute the adverse employment action in this case,
15

we do not regard her initial voluntary request for leave as

foreclosing her retaliation claim.

We are satisfied that McCoy’s troubling statements have no

bearing on whether SPD’s actions constitute an adverse employment

action. In the next step of the McDonnell Douglass burden-shifting

framework, such statements could affect our assessment of SPD’s

motive for its actions, but they are irrelevant to our

consideration whether McCoy’s being placed on administrative leave

meets the Burlington Northern standard for an adverse employment

action. 

Similarly, the mere fact that McCoy was placed on paid

administrative leave does not necessarily mean that she did not

suffer an adverse employment action. Police officers are typically

placed on administrative leave, frequently with pay, when they are

under investigation or as discipline for wrongdoing. In such

cases, the officers are indefinitely relieved of all duties and

have little, if any, control over their reinstatement.

Consequently, placement on administrative leave may carry with it

both the stigma of the suspicion of wrongdoing and possibly

significant emotional distress. Instances of administrative leave

can also negatively affect an officer’s chances for future

advancement. 

Accordingly, we recognize that it is at least a close question

whether SPD’s placing McCoy on paid administrative leave

constituted an adverse employment action under the Burlington
28 The City also challenges whether McCoy has established

the other two elements of her prima facie case of retaliation. 

First, the City contends that McCoy’s complaint against Sergeant

Jackson did not allege race or sex as a motive for his harassing

conduct, and therefore does not constitute “protected activity”

under Title VII. Next, the City conclusionally asserts that

McCoy failed to establish a causal link between her protected

activity and her adverse employment action.

Although we need not address these issues to resolve her

appeal, we note that McCoy asserts that she was placed on

administrative leave not only in retaliation for her official

complaint against Sergeant Jackson, but also because she orally

complained about the SPD’s general mistreatment of black officers

after learning that her official complaint had been denied. 

McCoy’s complaints likely amount to protected activity. See

Grimes v. Tex. Dept. of Mental Health and Mental Retardation, 102

F.3d 137, 140 (5th Cir. 1996) (“An employee has engaged in

activity protected by Title VII if she has either (1) ‘opposed

any practice made an unlawful employment practice’ by Title VII

or (2) made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing’ under Title

VII.”)(citations omitted)). 

Regarding any causal connection between McCoy’s complaints

and her placement on administrative leave, she has at least

demonstrated that the employment decisionmakers (Captain Walker

and Assistant Chief Owens) knew of her complaints and took the

alleged adverse employment action against her in close temporal

proximity to her making those complaints. See Swanson v. Gen.

Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (holding that

close timing between protected activity and adverse employment

action may be sufficient to establish a “causal connection”).

16

Northern standard. We need not answer this question today,

however, because even if McCoy could make the necessary prima facie

case of discriminatory retaliation under Title VII, she cannot

prove that the City’s proffered legitimate, non-retaliatory reasons

for collecting her gun and badge and placing her on administrative

leave are pretextual.28

c. Pretext
17

The adverse employment action allegedly taken against McCoy

involved three separate acts. First, Captain Walker retrieved

McCoy’s gun before allowing her to leave work. Next, Assistant

Chief Owens instructed Captain Walker to designate McCoy’s leave as

administrative, and Walker did so. Finally, Captain Walker took

McCoy’s badge. The City contends that Captain Walker took McCoy’s

gun because her comments about “workplace violence” and “taking

care of the problem herself” raised legitimate concerns about her

safety and that of others. The City further maintains that,

because McCoy presented no evidence of any racially insensitive

conduct by Captain Walker or Assistant Chief Owens, she has not

raised a material fact issue whether the decision to classify her

leave as administrative had a retaliatory motive vis a vis her

allegations of racism in the SPD. The City does not proffer a

motive for confiscating McCoy’s badge other than that such action

was necessary to satisfy SPD rules regarding administrative leave.

McCoy contends that she has offered sufficient evidence that

the reasons given by the City for SPD’s actions are mere pretext

for racially retaliatory animus against her railings about the

treatments of blacks in the SPD. She primarily points to her

testimony that Captain Walker was standing nearby when she

complained to another officer about the SPD’s mistreatment of its

black officers. She also notes that Captain Walker informed

Assistant Chief Owens of McCoy’s comments when the two men spoke

later that day. And, insists McCoy, even if Captain Walker
29 Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th

Cir. 1997).

30 Id.

18

legitimately confiscated her gun for safety reasons, such reasons

do not justify his taking her badge.

Essentially, McCoy contends that, because Captain Walker and

Assistant Chief Owens (1) were aware of her complaints about SPD’s

treatment of black officers, and (2) took her gun and badge and

placed her on administrative leave shortly after she made those

complaints, a material fact issue exists as to whether the City’s

proffered legitimate reasons for SPD’s actions are pretextual. We

disagree.

“Close timing between an employee's protected activity and an

adverse action against him may provide the ‘causal connection’

required to make out a prima facie case of retaliation.”29

“However, once the employer offers a legitimate, nondiscriminatory

reason that explains both the adverse action and the timing, the

plaintiff must offer some evidence from which the jury may infer

that retaliation was the real motive.”30 McCoy has offered no such

evidence. She had not alleged that either Captain Walker or

Assistant Chief Owens ever engaged in any racially discriminatory

conduct towards McCoy or any other black employee; neither does she

present any evidence indicating that, under similar circumstances,

white officers were treated differently than was she.
31 Teague v. City of Flower Mound, Tex., 179 F.3d 377, 380

(5th Cir. 1999) (First Amendment retaliation). 

19

McCoy’s attempt to prove pretext simply by showing that the

SPD decisionmakers knew of her complaints and took an adverse

employment action shortly thereafter fails. She offers no evidence

from which a reasonable juror could infer that the legitimate

reasons proffered by the City for confiscating her badge and gun

and placing her on administrative leave were pretextual.

Consequently, summary judgment dismissal of her Title VII

retaliation claims was proper.

2. First Amendment Retaliation

It is well settled that a plaintiff asserting a First

Amendment retaliation claim in employment must show that (1) an

adverse employment action was taken, (2) speech involving a matter

of public concern was uttered, (3) the employee’s interest in

speaking outweighs the employer’s interest in efficiency, and (4)

the protected speech precipitated the adverse employment action.31

The City insists that McCoy cannot show that (1) she suffered an

adverse employment action, or (2) her speech involved a matter of

public concern. McCoy insists that both her official complaint

against Sergeant Jackson and her oral complaint about the plight of

black officers in the SPD involve matters of public concern, and

that the SPD’s actions constitute an adverse employment action

under Burlington Northern. As with McCoy’s Title VII retaliation

claim, however, we need not resolve these questions: McCoy has not
20

presented sufficient evidence to allow a reasonable juror to

conclude that her speech precipitated any adverse employment action

against her. 

The City’s proffered legitimate reasons for the employment

action taken by the SPD are discussed in detail above, as is

McCoy’s failure to provide any evidence that those reasons were

pretext for discriminatory retaliation for her statements about

SPD’s mistreatment of black officers. This evidentiary shortcoming

does not produce a different result simply because this claim is

grounded in the First Amendment’s, and not Title VII’s, protection

of her speech. Other than her own self-serving conclusions and the

temporal proximity of the SPD’s actions to her speech, McCoy has

failed to produce any evidence that would support a conclusion of

retaliatory animus. Given the legitimate reasons for SPD’s actions

proffered by the City, McCoy’s evidentiary failure is fatal to her

First Amendment retaliation claim.

3. Intentional Infliction of Emotional Distress

A Louisiana claim for intentional infliction of emotional

distress is actionable only if the plaintiff can show “(1) that the

conduct of the defendant was extreme and outrageous; (2) that the

emotional distress suffered by the plaintiff was severe; and (3)

that the defendant desired to inflict severe emotional distress or

knew that severe emotional distress would be certain or
32 White v. Monsanto, 585 So. 2d 1205, 1209 (La. 1991).

33 Id.

34 To the extent that McCoy argues that her tort claim was

not limited to intentional infliction of emotional distress,

Louisiana Civil Code article 2315 does not protect against

employment discrimination, which is the basis of McCoy’s

complaint. See Baynard v. Guardian Life Ins. Co., 399 So. 2d

1200, 1202 (La. App. 1st Cir. 1981).

21

substantially certain to result from his conduct.”32 The conduct

complained of must be “so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of decency, and to

be regarded as atrocious and utterly intolerable in a civilized

community.”33 None of the conduct McCoy complains of —— whether by

Sergeant Jackson or others in the SPD —— rises to that level. The

district court properly granted summary judgment for the City on

McCoy’s Louisiana-law tort claim for intentional infliction of

emotional distress.34

III. CONCLUSION

For the foregoing reasons, the district court’s summary

judgment dismissing each of McCoy’s claims is, in all respects

AFFIRMED.