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Click here for the full text of this decision FACTS:Erma McCoy, a black female, worked for the Shreveport Police Department 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, Sgt. Ed 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 Jackson’s conduct did not constitute harassment, and city personnel recommended that both Jackson and McCoy be counseled about workplace “horseplay.” The following month, Capt. 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. Walker told McCoy that she could speak to the chief of police if she was dissatisfied with the way the investigation had been conducted. McCoy declined, however, and then began crying uncontrollably, reportedly telling 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 denied making this statement. But McCoy admitted that she was in an emotional state and acknowledged telling Walker that she would “not take this lying down.” McCoy also remembered Walker being present later when she told a 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. 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. Walker then informed SPD Assistant Chief Charlie Owens of the events surrounding McCoy’s departure. Owens indicated his belief that, because Walker had taken McCoy’s gun, he had effectively placed her on administrative leave. Owens instructed Walker to have McCoy sign the paperwork necessary to process an administrative leave. The next morning, 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. McCoy was paid her full salary throughout her leave. 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.” 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 Art. 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 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 appealed. HOLDING:Affirmed. 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 “adverse employment action.” Without proving such an action, the court stated that McCoy could not make the necessary prima facie cases of discrimination or retaliation. McCoy argued 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. A constructive discharge, the court stated, occurs when the employer makes working conditions “so intolerable that a reasonable employee would feel compelled to resign.” In determining whether an employer’s actions constitute a constructive discharge, the court examined several factors, including: 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. This inquiry, the court stated, is an objective “reasonable employee” test that asks “whether a reasonable person in the plaintiff’s shoes would have felt compelled to resign.” Considering the summary judgment evidence here in the light most favorable to McCoy, the court stated that a reasonable employee in McCoy’s 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. McCoy 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” and did not meet the established standard for a constructive discharge, the court stated. McCoy also contended that the SPD took an adverse employment action against her when Walker retrieved her gun and badge and placed her on administrative leave. The court stated that for all Title VII claims, “[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.” Under this standard, the court held that the district court properly held that placing McCoy on paid leave whether administrative or sick was not an adverse employment action. Nonetheless, the court recognized that it was at least a close question whether SPD’s placing McCoy on paid administrative leave constituted an adverse employment action under the Burlington Northern standard. But the court did not resolve that question, “because even if McCoy could make the necessary prima facie case of discriminatory retaliation under Title VII, she [could] not prove that the City’s proffered legitimate, non-retaliatory reasons for collecting her gun and badge and placing her on administrative leave are pretextual.” OPINION:Per curiam; Higginbotham, Wiener and Prado, JJ.

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