Elwakin v. Target Media Partners Operating Co. LLC.

Citations: 901 F. Supp. 2d 730; 2012 U.S. Dist. LEXIS 145137; 116 Fair Empl. Prac. Cas. (BNA) 493; 2012 WL 4794354Docket: Civil Action No. 11-2648

Court: District Court, E.D. Louisiana; October 9, 2012; Federal District Court

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Defendant Target Media Partners Operating Company, LLC filed a Motion for Summary Judgment seeking to dismiss all claims brought by Plaintiff Wakaa Elwakil. The hearing for this motion, initially scheduled for August 29, 2012, was postponed to September 5, 2012. Elwakil opposed the motion and submitted a reply memorandum. Additional motions arose, including Elwakil's request to strike certain exhibits and an affidavit from Target, which included documents from the Kenner Police Department and a judicial charge related to Domineck; this motion was set for hearing on September 12, 2012. Target also filed a motion to strike portions of affidavits submitted by Elwakil and Anthony Giusti in support of her opposition, which went unopposed and was scheduled for September 26, 2012. Elwakil's motion to strike newly submitted exhibits in Target's reply memorandum, or alternatively to file a sur-reply, was noted for submission on October 3, 2012, and was also opposed. The court indicated that it would address all four motions in the accompanying order.

The case involves Elwakil's claims that Target violated Title VII of the Civil Rights Act of 1964, alleging discrimination based on her ethnicity, religion, and national origin. Elwakil, an Arab, Egyptian, Muslim woman, claims she faced unlawful discrimination after the replacement of her previous white male manager with an African American female manager, Toya Domineck, who allegedly made derogatory comments regarding her identity. Additionally, Elwakil asserts that Domineck physically threatened her shortly before her termination and that she was subjected to unfair work standards compared to her peers.

On November 14, 2011, Target filed a motion to dismiss the case. On February 29, 2012, the Court granted the motion concerning Elwakil’s state law claims of negligence, discrimination, harassment, retaliation, and other torts, while denying it regarding Elwakil’s Title VII claims, allowing his discrimination and retaliation claims to proceed. The Court interpreted Elwakil’s discrimination claims as alleging disparate treatment and a hostile work environment. Subsequently, on January 30, 2012, Target moved for summary judgment on the remaining claims, but this motion was dismissed without prejudice after Target withdrew it, citing Elwakil's compliance with discovery requests. 

Elwakil filed motions to strike affidavits and exhibits submitted in support of Target's summary judgment motion. He specifically challenged the Coffman Affidavit and documents in Exhibit E, claiming they were inadmissible. Elwakil contended that the Coffman Affidavit was not notarized, lacking the necessary language to qualify as a sworn affidavit under 28 U.S.C. § 1746. Target acknowledged the oversight and requested permission to re-file the affidavit, referencing Fifth Circuit precedent. Both parties concurred on the affidavit's lack of notarization, which rendered it incompetent as evidence for the summary judgment motion, as established in Nissho-Iwai American Corp. v. Kline, which ruled that unsworn affidavits could be properly struck from consideration.

The Coffman Affidavit fails to satisfy the requirements for "unsworn affidavits" under 28 U.S.C. § 1746 because it lacks a statement indicating it is made "under penalty of perjury," rendering it inadmissible. The court examines whether Target’s subsequent remedial actions can rectify this defect. Previous Fifth Circuit cases have allowed the re-filing of affidavits to correct such deficiencies, as seen in United States v. Filson and Johnson v. New South Federal Savings Bank, and other federal courts have permitted amendments to address notarization issues. In this instance, Target was informed of Elwakil’s objection on August 24, 2012, and promptly responded on September 4, 2012, contrasting with cases where parties delayed their responses significantly. The court concludes that Target has successfully cured the initial defect in the Coffman Affidavit, which is now deemed competent summary judgment evidence.

The court also considers whether specific statements in the Coffman Affidavit, particularly Paragraph 44, should be struck due to hearsay challenges raised by Elwakil. Paragraph 44 details a telephone call where Elwakil resigned and later retracted that resignation. Elwakil argues this constitutes double hearsay, while Target contends it is not hearsay since it reflects the understanding between Elwakil and Domineck about the call, rather than the truth of Elwakil's resignation. According to Federal Rule of Civil Procedure Rule 56, only admissible evidence can be considered in summary judgment motions. Under the Federal Rules of Evidence, hearsay is defined as a statement offered to prove the truth of the matter asserted and is generally inadmissible, except for statements reflecting the declarant’s present state of mind. The relevance of the state of mind to the case at hand is also a factor in determining admissibility.

Paragraph 44 is deemed hearsay as it is presented to establish the truth of its content, irrespective of its intent to reflect Domineck's or Coffman's understanding of a call. The call's information is already detailed in Domineck's affidavit, who was a participant, stating she emailed Coffman about Elwakil’s resignation. Coffman's affidavit confirms this notification and the related email is included in Target’s Summary Judgment Motion. Consequently, Elwakil’s motion to strike is granted. 

Elwakil also challenges Paragraphs 23, 24, 26, and 27 of Coffman’s affidavit, arguing that their phrasing, "to the best of my knowledge," lacks sufficient basis to substantiate her claims. In defense, Target asserts that Coffman, as a Vice President who attended the pertinent staff meeting, would likely be aware of any complaints to Human Resources. Coffman’s affidavit indicates her presence at the meeting where Domineck allegedly threatened Elwakil and her approval of Elwakil's termination. The contested paragraphs assert that no complaints were made to Human Resources regarding Domineck's comments and that no one followed the Harassment policy.

The admissibility of these statements hinges on Rule 56, which requires affidavits to be based on personal knowledge. The affidavit must provide sufficient evidence indicating the witness's personal knowledge. The precedent set in Randolph v. Terrebonne Parish suggests that even if a manager has potential knowledge of an event, lacking specific facts about their knowledge of an employment action undermines the affidavit's reliability. In this case, Coffman's affidavit does not clarify that her Vice President responsibilities involve reviewing employee complaints or ensuring adherence to harassment policies, thus failing to demonstrate adequate personal knowledge regarding the Human Resources files and any related complaints.

Coffman’s statements in Paragraphs 23, 24, 26, and 27 lack sufficient personal knowledge, rendering them inadmissible; thus, Elwakil’s Motion to Strike these paragraphs is granted. The second issue involves Exhibit E from Target’s Motion for Summary Judgment, which includes four documents related to Domineck’s alleged assault on Elwakil. Elwakil argues that these documents are unauthenticated, lacking an affidavit or sworn declaration, and therefore should be stricken, regardless of their potential relevance or the possibility of later admission at trial. In contrast, Target contends that the documents were part of the discovery process initiated by Elwakil and asserts that an affidavit from its attorney confirms the documents' origin from the Kenner Police Department. According to Rule 56(c), documents must be authenticated by an affidavit to be admissible for summary judgment. Mere production during discovery does not suffice for authentication unless supported by additional evidence. Previous Fifth Circuit rulings indicate that a document can be authenticated if the producing party did not dispute its authenticity or affirm the truth of the facts in their opposition to summary judgment.

The Mora Affidavit indicates that documents were obtained through a "records request" and "discovery," but lacks clarity on Mora’s personal knowledge regarding the specific source of these documents, leaving ambiguity as to whether Elwakil was responsible for both the records request and discovery responses. Target’s Motion for Summary Judgment asserts that Elwakil contacted the Kenner Police Department multiple times, a claim Elwakil does not contest. Additionally, Domineck states in her Affidavit that police officers visited her workplace on February 23, 2009, following a report made by Elwakil, and that she later received a summons from the police. Elwakil has not contested this summons, which includes Domineck's signature, but documents provided do not bear Elwakil's or Domineck's signatures, raising questions about their validity. The Court cannot currently ascertain if the documents adequately support the claims made under Federal Rule of Evidence 901(a), leading to the denial of Elwakil’s Motion to Strike Exhibit E.

In a separate matter, Target seeks to strike portions of the Elwakil and Giusti Affidavits, which support Elwakil’s opposition to Target’s Motion for Summary Judgment. This motion is unopposed, set for September 26, 2012, and argues that both Affidavits contain identical, unsupported conclusory statements regarding disparaging comments made by Domineck about Arabs, which Target contends lack sufficient substantiation. Thus, Target requests these portions be struck from the record.

Elwakil's deposition reveals that Toya Domineck made several derogatory remarks about Arabs and Muslims, stating they should leave the U.S. and suggesting they are "crazy." Despite being unable to recall the exact wording due to language barriers, Elwakil asserts these comments were made multiple times, often in the context of discussions about news related to figures like Saddam Hussein and Osama Bin Laden. The context of these remarks is crucial in determining the admissibility of Elwakil and Giusti's affidavits in light of legal standards that deem unsupported or conclusory statements insufficient for summary judgment motions. Previous Fifth Circuit cases illustrate that statements lacking contextual support can be considered vague, while those with adequate context remain admissible. Elwakil's testimony provides sufficient specificity to support his claims, thus Target's Motion to Strike these affidavits is denied.

Elwakil seeks to strike exhibits submitted with Target’s Reply Memorandum, claiming they were filed late and introduce new evidence, including the Heinze Affidavit and new deposition excerpts, which support a novel argument regarding the termination of non-minority employees. Elwakil argues this introduction bypasses standard summary judgment procedures and requests either to disregard the new evidence or to allow a sur-reply. Target opposes the motion, asserting that Elwakil's own opposition raised new arguments necessitating their response with additional evidence. The court's discretion regarding the consideration of new evidence in reply briefs is noted, highlighting that timing and litigation context are crucial. In this case, the timing of Target's submission, which occurred just after the summary judgment motion was noticed, along with Elwakil’s motion to strike, support the argument for excluding the new evidence. Additionally, Target's rationale for introducing new evidence is questioned, suggesting it may not qualify as excusable oversight.

Elwakil's Petition alleges that Target engaged in unlawful discrimination, harassment, and retaliation, specifically citing a Charge of Discrimination filed with the EEOC that includes claims of "Race, Religion, National Origin, and Retaliation." The Court recognized both retaliation and discrimination aspects of her claims in its prior rulings. Target's own summary judgment motion acknowledges that Elwakil claims to have faced unlawful discrimination and retaliation under federal law and outlines arguments against her discrimination claims, including a legal standard for employment discrimination cases. Target contends that it had a legitimate reason for her termination, citing that Elwakil’s resignation was accepted. However, the Court found that Target's later introduction of additional evidence related to "new" claims was unsupported by earlier arguments or submitted evidence. Consequently, the Court granted Elwakil's motion to strike this new evidence, including the Heinze Affidavit and certain deposition excerpts, while denying her request to strike the Coffman Affidavit, deeming it a corrected document rather than new evidence. The Court ruled that granting Elwakil leave to file a sur-reply regarding the stricken evidence was unnecessary and inappropriate. Following the resolution of these motions, the Court is set to consider Target's Motion for Summary Judgment, Elwakil's opposition, and Target's reply.

Summary:

Rule 56(a) establishes that a court can grant summary judgment if the movant demonstrates the absence of a genuine dispute regarding any material fact, and is entitled to judgment as a matter of law. A "material" fact is one whose resolution could influence the suit's outcome. Once the movant presents a supported motion for summary judgment, the burden shifts to the nonmoving party to produce significant probative evidence indicating a genuine issue of material fact. The nonmoving party must go beyond mere allegations or inconclusive evidence and present specific facts to warrant a trial. The court must favorably resolve factual controversies for the nonmoving party, but cannot accept mere metaphysical doubts or minimal evidence. Relevant materials for consideration in a summary judgment motion include pleadings, depositions, interrogatories, admissions, and affidavits.

In employment discrimination cases, the summary judgment standard follows a burden-shifting analysis as outlined in McDonnell Douglas Corp. v. Green. Regarding the case at hand, it is established that Elwakil was employed by News on Wheels since 1995 and became an Account Executive. After Target acquired the company in June 2007, Elwakil acknowledged Target's anti-harassment policy, which prohibits discrimination and harassment based on race, religion, or national origin, and mandates immediate reporting of any incidents to Human Resources. Up until February 1, 2009, Elwakil did not report any discrimination issues to Target, and no such incidents were recorded before or after that date. On February 2, 2009, Elwakil's manager was replaced by Toya Domineck.

On February 16, 2009, during a staff meeting, Domineck threatened Elwakil by stating she would physically strike her if she continued speaking about declining sales. Coffman, a Vice President present at the meeting, did not intervene or reprimand Domineck. Elwakil did not report the threat to Target's Human Resources but instead contacted the Kenner Police Department, leading to a citation issued to Domineck on March 17, 2009, for disturbing the peace and making threats. Coffman later characterized the threat as a joke when notified by the police. Elwakil’s employment ended on February 23, 2009.

In the context of a Title VII discrimination case, a plaintiff must establish a prima facie case by demonstrating: (1) membership in a protected class, (2) qualification for the position, (3) suffering an adverse employment action, and (4) less favorable treatment compared to similarly situated employees outside the protected class. Elwakil alleges discrimination based on a hostile work environment and disparate treatment due to her race (Arab), nationality (Egyptian), and religion (Muslim). While there is no dispute regarding her classification as a member of a protected class, the focus of the case is on whether Elwakil can satisfy the other three elements of the McDonnell Douglas framework.

Elwakil has been continuously employed since 1995 and was previously qualified for her position, having won sales competitions. Target contends that she was "resistant" to changes following its acquisition of News on Wheels, but does not detail the specific objections. Elwakil acknowledges a decrease in her client base from approximately 60 to 23 post-Hurricane Katrina, yet Target has not defined what an acceptable client count would be. The court interprets this in Elwakil's favor for summary judgment purposes, finding sufficient evidence to support her prima facie case.

Regarding her Title VII discrimination claim, the court addresses whether Elwakil's separation constitutes a "discharge." The parties disagree on whether she resigned voluntarily, under duress, or was terminated. Affidavits and emails presented by both sides create ambiguity about her resignation. Target's emails suggest she resigned voluntarily, but the details are unclear due to cropped documents and the timing of communications. For instance, an email conversation indicates confusion regarding a vacation request following her alleged resignation. Overall, the evidence surrounding her resignation lacks clarity, complicating the determination of her employment status at the time of separation.

Elwakil's employment termination status remains ambiguous, as it is unclear whether she submitted a resignation prior to her discharge from Target, allowing her discharge claim to proceed. To establish a prima facie case of disparate treatment, Elwakil must demonstrate that similarly situated employees were treated more favorably. She asserts that she was treated less favorably than her peers, specifically lacking remote computer access, which supports her claim that she was held to different performance standards. Additionally, evidence suggests that discriminatory remarks were made about Arabs and Muslims, while similar non-Arab employees were not subjected to such treatment. Elwakil has met the low threshold for proving a prima facie case of discrimination, shifting the burden to Target to provide a legitimate non-discriminatory reason for her termination. Target's argument hinges on the assertion that Elwakil resigned, but the existence of factual disputes regarding her termination status prevents her from losing the presumption of discrimination. Consequently, Target's motion for summary judgment is denied. Furthermore, Elwakil's testimony regarding derogatory comments made by Domineck about Arabs raises questions about her hostile work environment claims based on race, religion, or national origin.

Elwakil reported a hostile work environment, detailing a confrontation with her supervisor, Domineck, during a staff meeting on February 16, 2009. Following a discussion about low sales attributed to Hurricane Katrina, Domineck responded aggressively, stating, “I don’t want to hear these shit excuses about Katrina anymore. You need to shut up... if you open your mouth one more time I’m going to beat the shit out of you.” Domineck then slammed a roll of paper towels in front of Elwakil. Despite the presence of Domineck's supervisor, Linda Coffman, no intervention occurred. 

Elwakil's affidavit supports her claim of disparate treatment related to wrongful discharge, but the criteria for establishing a hostile work environment are stricter. A plaintiff must demonstrate: (1) discriminatory intimidation or ridicule; (2) the conduct must be severe or pervasive; (3) it alters employment conditions; and (4) creates an abusive environment. Additionally, the employer must have knowledge or reason to know about the discrimination. 

Case law underscores that a hostile environment is evaluated based on the frequency and severity of incidents, whether they are threatening or humiliating, and their impact on work performance. The conduct must be either severe or pervasive, but not necessarily both. Courts emphasize that isolated incidents, unless extremely serious, do not constitute a hostile work environment and that Title VII standards are designed to prevent the law from becoming a general civility code.

Proper application of legal standards filters out complaints regarding typical workplace issues, including sporadic abusive language and occasional teasing, which do not constitute a hostile work environment. Courts in the Fifth Circuit require that hostile work environment claims be constant and pervasive, with isolated incidents deemed insufficient. For instance, in Hernandez v. Yellow Transportation, Inc., a single instance of racial slur and derogatory material over a decade was not enough to establish a hostile environment. Similarly, Jones v. Continental Cuisine, Inc. found that one derogatory term did not create a hostile work environment. While a severe isolated incident can potentially give rise to a claim, this is rare and typically involves physical violence. A series of derogatory statements alone is unlikely to qualify as hostile. Courts have recognized claims where conduct is continuous or accompanied by clear evidence of discrimination, such as in Jackson v. Wilson Welding Service, Inc., where repeated racial slurs and derogatory behaviors created a hostile atmosphere.

In the case of Elwakil, her allegations, which include derogatory remarks made by Domineck and her own comments about Arabs and Muslims, fall between the extremes of what constitutes hostile behavior. Elwakil testified that Domineck made four to five derogatory statements towards her, and she herself acknowledged making remarks about Arabs and Muslims being "crazy." Despite these allegations, she admitted to having no issues of discrimination prior to February 1, 2009, and could not precisely recall the context or exact words of the comments made. The alleged remarks would be offensive if proven true, but the overall context is critical in determining whether they rise to a hostile work environment.

A hostile work environment inquiry is highly context-specific, raising questions about whether five statements, as claimed by Elwakil, could constitute discriminatory intimidation that altered her employment conditions. A critical issue is whether Target was aware of the discriminatory conduct and failed to act, with notification typically requiring a complaint to Human Resources or another director. Case law indicates that employers cannot be held liable for unreported conduct (Woods v. Delta Beverage Group, Inc.; Moore v. United Parcel Service, Inc.). If the harasser has supervisory authority, the employee may not need to follow company complaint procedures (Watts v. Kroger Co.; Celestine v. Petroleos de Venezuela SA). Elwakil acknowledged receipt of Target’s discrimination policy but claimed she could not report Domineck's conduct due to a perceived conspiracy against her. No evidence was presented that she had another manager to approach. Since Domineck was Elwakil’s direct supervisor, Coffman’s actions at the staff meeting do not affect Target's notice of Domineck's conduct. Elwakil has established a prima facie case, shifting the burden to Target to provide a non-discriminatory explanation for its actions. Target contends that the behavior in question does not constitute a hostile work environment under Title VII, arguing that Elwakil did not demonstrate objectively offensive conduct, particularly focusing on the occasional nature of Domineck's comments regarding Arabs and Muslims.

Domineck's comments during a February 16, 2009, staff meeting, characterized by Elwakil as heated and profane, did not reference her status as a member of a protected group and focused solely on her sales performance. Elwakil admitted her sales had been low for some time, allowing Target to present sufficient facts to counter the presumption of discrimination. The burden shifted to Elwakil to provide evidence of a genuine issue of material fact for her claim. She contended that Domineck's comments, combined with a physical threat, established a hostile work environment claim. Citing recent Fifth Circuit cases, it was noted that an employee's history of bigoted statements could contribute to a hostile work environment determination, especially in cases involving threats or violence. Despite the aggressive nature of Domineck's comments, summary judgment for Target was denied on the hostile work environment claim, contingent on Elwakil proving the statements were pervasive.

Regarding Elwakil's retaliation claim, she alleged that Target retaliated against her for reporting discrimination and harassment. She noted that the police had visited Target on February 20, 2009, looking for Domineck. Target's motion for summary judgment contended Elwakil's claims should be dismissed due to ambiguity surrounding her protected activity, lack of clear adverse employment action, and inability to establish a causal link between her actions and her termination, which occurred on February 23, 2009. Elwakil asserted that contacting the police about unlawful conduct constituted protected activity and that her termination was the adverse action in question.

The document presents several arguments related to a claim of retaliation under Title VII. First, it asserts that the police do not typically track an individual's employment status unless it is relevant, suggesting a potential link between police interest and the individual's employment situation. Second, the timing of the police's visit to Target's office on February 20, 2009, and the individual's termination on February 23, 2009, is argued to imply causation. Title VII prohibits employment discrimination against employees who oppose unlawful practices, requiring that a plaintiff establish (1) engagement in protected activity, (2) suffering an adverse employment action, and (3) a causal connection between the two.

Protected activities include opposing unlawful employment practices or participating in investigations related to Title VII. The Fifth Circuit requires that opposition activities be reasonable and balanced against the employer's interests, distinguishing general misconduct reporting from Title VII-related complaints. Some courts have found that filing criminal charges can qualify for Title VII protection if the charges stem from discriminatory acts perceived by the victim. Other courts maintain that a reasonable belief in the discriminatory nature of the actions reported is necessary for the filing to be deemed opposition under Title VII.

In Worth v. Tyer, the court examined a case where Elwakil alleged retaliation following her termination from Target. The evidence indicated that while police reports related to an incident of alleged discrimination were filed, certain documents labeled as police reports were not properly considered by the court. Regardless, the court acknowledged that Domineck’s comments could demonstrate a pattern of discrimination, particularly after the February 2009 sales meeting incident, which was pivotal to Elwakil’s claims.

Elwakil established her prima facie case of retaliation by demonstrating that her termination constituted an "adverse employment action" under Title VII. The court noted the existence of a genuine dispute regarding whether Elwakil was terminated or resigned. Furthermore, the court identified a causal connection based on the close timing between her protected activities (including an email exchange disputing her resignation and the sales meeting incident) and her termination.

Target’s motion for summary judgment was denied, as the core issue of whether Elwakil was terminated remained disputed. Additionally, Target contended that Elwakil could not pursue retaliation claims related to her EEOC complaint since it was filed after her termination. Elwakil countered that the timeline was ambiguous, citing that police involvement occurred before her termination. While she indicated retaliation in her EEOC filing, she did not elaborate on how it influenced her claims.

Elwakil's Title VII retaliation claims related to her EEOC Charge of Discrimination filed on October 20, 2009, fail to satisfy the prima facie standard, as the charge was submitted after her termination from Target. Despite her EEOC Charge citing discrimination occurring between February 1, 2009, and February 23, 2009, there is no evidence she threatened to file a charge during her employment, and her deposition confirms she did not voice any complaints. As established in Castlino v. Thomas, Target could not have retaliated against Elwakil for actions not taken prior to her termination. Consequently, Target's Motion for Summary Judgment on this claim is granted.

Regarding punitive damages, Elwakil must demonstrate that Target's agent acted in a managerial capacity, within the scope of employment, and with malice or reckless indifference toward her federally protected rights. Although Elwakil did not explicitly seek punitive damages in her opposition, her original petition included a request for unspecified damages. She claims Target failed to act in good faith, citing the presence of Coffman at a sales meeting and a lack of intervention in a situation leading to criminal liability for another employee. Under 42 U.S.C. § 1981a(a)(1), punitive damages are permissible for Title VII plaintiffs. Liability for punitive damages requires an employer to discriminate despite knowing it could violate federal law. Intentional discrimination may not meet this standard if the employer is unaware of the law or believes their actions are lawful. While proof of pretext and discrimination does not automatically indicate malice or reckless indifference, the statutory nature of punitive damages means that a lack of non-nominal compensatory damages does not eliminate the potential for punitive damages.

The Fifth Circuit has not definitively determined if a company's knowledge of a Title VII violation alone makes it liable for punitive damages. In Farpella-Crosby v. Horizon Health Care, the court found no grounds for punitive damages despite an employee's complaints of sexual harassment and a six-month inaction by HR. In Cherry v. Shaw Coastal, the court overturned a lower court's ruling on punitive damages linked to a hostile work environment, emphasizing notice of misconduct without prompt action. Conversely, other courts have allowed punitive damages in various scenarios, such as in retaliation cases involving coercive threats (Stocks, Inc.) and instances where the defendant was aware of federal law violations despite dismissals of related criminal charges (Arbaugh v. Y. H. Corp.). The court in Lincoln v. Case recognized punitive damages for landlords who misrepresented housing availability.

In the present case, the court initially expressed reluctance to award punitive damages but later concluded that the unresolved factual issues and the permissive interpretation of disputed facts do not preclude such an award as a matter of law. Thus, Target’s motion for summary judgment to deny Elwakil’s punitive damage claims is denied.

In the conclusion, the court has partially granted and denied Elwakil's motion to strike certain exhibits and affidavits submitted by Target. Specifically, it denies the complete striking of Linda Coffman's affidavit but grants the removal of specific paragraphs within it, as well as an exhibit attached to Target’s motion for summary judgment. Target’s motion to strike parts of Elwakil’s and Anthony Giusti's affidavits is denied. Additionally, Elwakil's motion regarding exhibits submitted with the reply memorandum is partially granted, denied, and deemed moot in parts.

The court granted the motion to strike the Affidavit of Karen Heinze and the excerpts from Wafaa Elwakil's deposition, both attached to Target's reply to Elwakil's opposition to Target's motion for summary judgment. Elwakil's request to file a sur-reply was denied. The motion to strike Linda Coffman's Affidavit was denied as moot. Target's Motion for Summary Judgment was partially granted and partially denied: it was denied concerning Elwakil’s discrimination, hostile work environment, and retaliation claims, though the latter was granted to the extent it was based on her filing a Charge of Discrimination with the EEOC. The court also denied Elwakil’s potential entitlement to punitive damages. 

Elwakil was misnamed as "Wafaa Elwakin" in her original petition. The document notes that prior to December 1, 2010, a motion to strike was the method to challenge affidavits, but under the current Federal Rule of Civil Procedure, a party may now simply object. The court will still consider motions to strike for convenience. Elwakil filed a Charge of Discrimination with the EEOC on October 20, 2009, alleging discrimination based on race, national origin, and religion, as well as retaliation. The EEOC issued her a Notice of Right to Sue on March 29, 2011. Elwakil filed her complaint in state court on June 27, 2011, which was removed to federal court on October 21, 2011. Her allegations were previously deemed sufficient to establish a plausible claim of relief under the standards set by Bell Atlantic Corp. v. Twombly. The court will consistently refer to a party named Domineck throughout the proceedings, noting inconsistencies in the spelling of her name in the pleadings. Target's prior motion for summary judgment was dismissed without prejudice.

Target's argument fails to establish that Coffman's statement is non-hearsay, as it does not directly assert knowledge of Elwakil's firing in Paragraph 44, instead providing a general assessment. Coffman's prior awareness of discussions with Domineck regarding Elwakil does not negate hearsay implications. Additionally, Target contends that Elwakil's complaints are moot since she admitted that reporting to Human Resources would have been futile. A specific comment from Domineck, which threatened physical action against Elwakil, is noted without additional context. The authentication of records submitted remains ambiguous, particularly regarding whether certain police reports qualify as public records under Rule 901(b). The court finds it unnecessary to resolve the classification of these documents for the case at hand, as there are other means to address authentication. Target's Motion to Strike has inconsistencies regarding the referenced affidavits, leading the court to interpret it as applying to all three affidavits filed. The clerk's office terminated R. Doc. 48 as defective, and Target submitted R. Doc. 51 as a replacement. Elwakil’s latest arguments introduce new deposition excerpts, which Target does not address in its response.

Elwakil contends that the signature on Coffman’s notarized affidavit, dated January 24, 2012, resembles the signature on a previous non-notarized affidavit. Target asserts they are indeed the same signature, referencing an earlier statement by Target's attorney who noted her presence as notary during Coffman's signing, despite not initially signing the notary line. Target further claims Elwakil's allegations are complicated by her contradictory statements. They argue that even though Elwakil has not raised the issue of punitive damages, such claims should be dismissed.

The Court granted Target permission to file a reply without specifying reasons, indicating that the Court has discretion to allow such motions in civil litigation. The parties dispute the nature of communications between Elwakil and Domineck, with Target asserting Domineck threatened Elwakil, while Elwakil provides a more severe account of Domineck's remarks. Despite these disagreements, it is acknowledged that Domineck indicated a willingness to physically harm Elwakil.

The excerpt notes that the Fifth Circuit has not limited the Swierkiewicz holding despite distinctions made by other circuits following key Supreme Court rulings. The Court previously found that Elwakil met the burden for her claims during Target’s motion to dismiss but will reevaluate the evidence under a different standard for summary judgment. The Court had previously interpreted Elwakil’s claims as involving disparate treatment and a hostile work environment. Furthermore, federal courts have classified "Arab" as a race and "Egyptian" as a nationality in discrimination claims under 42 U.S.C. § 1981. Additionally, constructive discharge can be proven even without an actual discharge if working conditions are deemed intolerable.

A constructive discharge claim necessitates a higher degree of harassment than what is required to establish a hostile work environment, as noted in *Benningfield v. City of Houston*. In this case, a genuine dispute exists regarding whether Elwakil was actually discharged, thus making the constructive discharge argument irrelevant. The Heinze Affidavit, which identifies Heinze as Target’s Human Resources Director, has been stricken from the record and cannot influence the current motion. Elwakil's claims of harassment are based on her identification as an Egyptian, Arab, and Muslim, claiming that no other non-minority salespersons faced similar derogatory comments or threats. She described an incident where she felt coerced into giving a hug and kiss to a colleague, Linda Coffman, but did not formally complain to Human Resources, claiming it would be futile since Coffman held a higher managerial position. Furthermore, Domineck's affidavit states she was unaware of any criminal complaint at the time of Elwakil's termination, and that a misdemeanor summons was issued nearly a month after the termination. Evidence suggests Elwakil contacted the police about the incident just three days before her last day at work. However, the court cannot consider the contents of certain excluded documents regarding allegations of discrimination.