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Berry v. City of Bossier City9/8/2005
osition -- provided a basis for his opposition to the motion for summary judgment. While the trial court granted summary judgment against McGee on the issues of hiring, training, discipline and hostile work environment, it denied it as to promotion, retaliation and certification.
Judgment in conformity with these rulings was signed on November 5, 2004.
ARGUMENT
As the only remaining defendant, the City appeals. It argues that its motions for summary judgment were supported by deposition testimony and that McGee and Lacoure opposed the motions based upon only affidavits and unsworn and unverified answers to interrogatories. The City maintains that the plaintiffs' response to the motions was untimely. Additionally, some of the information in the affidavits was speculative, i.e., had he known the importance of the agility test, Lacoure would have performed better. It also argues that the trial court erred in applying a "scintilla of evidence" standard in denying a motion for summary judgment.
The City further asserts that the plaintiffs failed to make a prima facie case on each of the legal claims. As to the claim of retaliation, McGee did not show that the BCFD took an "adverse employment action"; to the contrary, he stated in his deposition that he had not been retaliated against personally. On the claim of failure to promote, the City states that McGee's "drive out of class" allegation does not involve a promotion, but a temporary substitution for an absent driver. As to certification, McGee testified in his deposition that he thought he got certified when he should have. In his affidavit, he asserted that white training officers essentially sabotaged him by telling him to slow down. As to Lacoure's claims, the City argues that he failed to show that the alleged racial statements were frequent or severe enough to rise to the level of a hostile work environment as established by the jurisprudence or that they interfered with his job performance. The City also contends that Lacoure's certification complaints are based purely on the assumption that, had he known of the promotion criteria, he -- but not others being tested -- would have performed better and received a higher score.
In their brief, the plaintiffs argue that they made a prima facie case in showing that the BCFD certification process was discriminatory because it has a disparate impact on African-American candidates and the BCFD did not have a nondiscriminatory reason for parts of its certification process. They argue that a genuine issue of material fact existed as to whether the agility test is valid and thus summary judgment is precluded. On the matter of hostile work environment and retaliation, appellate counsel deferred to the arguments made at the hearing by the plaintiffs' trial counsel. However, appellate counsel asserted that the determination of the existence of and pervasiveness of the alleged hostile work environment was a question of fact not suitable for summary judgment.
SUMMARY JUDGMENT
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La. App. 2d Cir. 8/21/96), 679 So. 2d 477.
Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on
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