Stewart v. Smitty's Supply, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PRISCILLA STEWART CIVIL ACTION

VERSUS NO. 18-10058

SMITTY’S SUPPLY, INC. SECTION “R” (5)

ORDER AND REASONS

Before the Court is defendant Smitty’s Supply, Inc.’s motion for

summary judgment.1 Because plaintiff cannot establish an issue of material

fact, and because many of her claims are time-barred, the Court grants

defendant’s motion.

I. BACKGROUND

This case arises out of Priscilla Stewart’s termination from her job at

Smitty’s Supply. While employed for defendant’s sister company, Stewart

suffered an injury to her knee, was reassigned to light work, and was

transferred to Smitty’s Supply.2 Four months later, Smitty’s Supply

terminated Stewart.3 The purported reason for the termination was “re-

1 R. Doc. 35.

2 R. Doc. 1 at 2 ¶¶ 4-6.

3 Id. at 2 ¶ 7.

organization and consolidation.”4 Stewart avers that this reason was only

pretextual, and that she was replaced by a younger, non-disabled employee.5

After receiving a right to sue letter from the EEOC, Stewart filed a complaint

against Smitty’s Supply alleging wrongful termination.6 Stewart’s complaint

alleges a host of causes of action, including claims under the American with

Disabilities Act, the Age Discrimination in Employment Act, and the

Louisiana Employment Discrimination Act.7 This Court previously

dismissed Stewart’s claims for intentional infliction of emotion distress and

Louisiana Article 2315.8 Smitty’s Supply filed a motion for summary

judgment, arguing the Court should dismiss Stewart’s remaining claims.9

II. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

4 Id.

5 Id. at 2 ¶¶ 8-9.

6 Id. at 3 ¶ 10.

7 Id. at 3 ¶ 11.

8 R. Doc. 26.

9 R. Doc. 35.

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party “must come forward with evidence

which would ‘entitle it to a directed verdict if the evidence went

uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp.

948, 951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a

genuine dispute of material fact,” or by “showing that the moving party’s

evidence is so sheer that it may not persuade the reasonable fact-finder to

return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322

(emphasis added))).

III. DISCUSSION

Defendant moves to dismiss plaintiff’s remaining claims in this

litigation including: (1) a claim of age discrimination under the Age

Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; (2) a claim of

disability discrimination under the Americans With Disabilities Act, 42

U.S.C. § 12101, et seq.; and (3) a claim under the Louisiana Employment

Discrimination Act, La. R.S. 23:301, et seq. The Court addresses each claim

in turn.

A. Time-Barred Federal Claims

Defendant asserts that plaintiff’s federal claims are time-barred

because she filed her suit later than ninety days after receipt of her right-to-

sue letter from the EEOC. Under the ADEA and ADA, a plaintiff has ninety

days to file a civil action after receipt of such a right-to-sue letter from the

EEOC. See 29 U.S.C. §626(e) (requiring suit within ninety days for ADEA

claims); Dade v. Sw. Bell Tel. Co., 942 F. Supp. 312, 317 (S.D. Tex. 1996)

(holding that the ninety-day statute of limitations after receipt of the right to

sue letter in Title VII also applies to ADA claims). “This requirement to file

a lawsuit within the ninety-day limitation period is strictly construed.”

Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). The Fifth

Circuit has held that when the date on which a right-to-sue letter was actually

received is either unknown or disputed, presumption of receipt within three

to seven days of mailing is appropriate. Id. at 379-80.

Stewart’s right-to-sue letter explicitly informs her of the limitations

period. It states: “Your lawsuit must be filed WITHIN 90 DAYS of your

receipt of this notice; or your right to sue based on this charge will be

lost.”10 The letter also indicates that it was mailed on June 7, 2018, or 172

days before plaintiff filed suit.11 Plaintiff does not brief this issue, but she

asserts in her affidavit that she “received my ‘Right to Sue’ letter on July 28,

2018.”12 July 28, 2018, is exactly ninety days before plaintiff filed suit.13

Plaintiff also attaches two documents to support this assertion. First, she

attaches an electronic calendar entry from July 28, 2018, which states:

“Received EEOC right to sue [sic] letter today, after asking them to send Me

[sic] the letter that I never received.”14 Second, she attaches an email she

purportedly sent the EEOC on July 4, 2018, that states: “When will you issue

my right to sue letter? MY [sic] case was closed 06/07/2018.”15

10 R. Doc. 35-14 at 1 (emphasis in original).

11 Id.

12 R. Doc. 45-3 at 3.

13 See R. Doc. 1 (complaint filed on October 26, 2018).

14 R. Doc. 45-3 at 6. Defendant has moved to exclude this exhibit at trial

as it was not produced in discovery, despite being responsive to defendant’s

requests for production. See R. Doc. 56.

15 Id. at 5.

This evidence fails to create an issue of material fact as to whether

plaintiff’s suit was filed timely. Significantly, the plaintiff provides no

evidence that she received any type of communication from the EEOC on

July 28, 2018, or any date near there, sending a right-to-sue letter. Nor does

she attach any indication that the EEOC received or responded to her July 4,

2018, email. Indeed, the only evidence that the EEOC received an email from

plaintiff is an email plaintiff sent on October 25, 2018. In that email, Plaintiff

requested her “entire file” from the EEOC on the day before she filed suit.16

The EEOC responded the same day, resending, inter alia, the right-to-sue

letter and stating: “The Right to Sue was mailed to your and your attorney’s

attention on June 7, 2018.”17

And Stewart’s assertions in her affidavit, and the calendar entry she

attaches to support those assertions, contradict her deposition testimony. At

her deposition, plaintiff was asked point blank whether she remembered

when she received her right-to-sue letter. Despite the unqualified affidavit

asserting that she received the letter on July 28, 2018, she responded: “I

don’t know the date.”18 Plaintiff was also asked whether she knew the “date

16 See R. Doc. 35-3 at 53.

17 Id. at 54.

18 R. Doc. 35-3 at 37.

of the letter that was originally sent” to her.19 Plaintiff stated she did not

know the date of the letter, even though the right-to-sue letter that she says

she received in her affidavit states on its face that it was sent on June 7,

2018.20 When a plaintiff’s deposition testimony contradicts her sworn

affidavit, it may be disregarded under the sham-affidavit rule. That rule

states that “a nonmoving party may not manufacture a dispute of fact merely

to defeat a motion for summary judgment.” Doe ex rel Doe v. Dallas Indep.

Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000). Thus, where an affidavit

diverges from deposition testimony, courts may disregard the affidavit at the

summary judgment stage. See, e.g., Powell v. Dallas Morning News, L.P.,

776 F. Supp. 2d 240, 247 (N.D. Tex. 2011) (“Courts have consistently

disregarded such sham affidavits as nothing more than an attempt to

‘manufacture a disputed material fact where none exists.’” (citing Alberton

v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir. 1984))). Here, there

is a contradiction between plaintiff’s deposition testimony and her sworn

affidavit which merits application of the sham-affidavit rule.

Having disregarded the portion of plaintiff’s affidavit regarding the

date she received her right-to-sue letter, the only remaining evidence is

19 Id. at 36.

20 Id.; see also R. Doc. 35-14 at 1.

plaintiff’s July 4, 2018, email to the EEOC requesting the letter. But this

email does not support the proposition that plaintiff received the letter on

July 28. Rather it provides only some evidence that she may have received

it after July 4, 2018.

The letter is therefore entitled a presumption of receipt within seven

days of the date on which it states it was sent. See Taylor v. Books A Million,

Inc., 296 F.3d at 379-80. Here, that presumptive date would be June 14,

2018. Because plaintiff’s suit was not filed until October 26, 2018, more than

ninety days after June 14, 2018, plaintiff’s federal claims are barred as

untimely.

B. Age Discrimination in Employment Act

Notwithstanding the Court’s holding that plaintiff’s federal claims are

time-barred, the Court further considers defendant’s arguments that

plaintiff’s age discrimination claim should be dismissed on the merits.

In the Fifth Circuit, age discrimination claims are analyzed under the

burden-shifting framework outlined in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Jackson v. Cal-W. Packaging Corp., 602 F.3d 374,

378 (5th Cir. 2010). Under this framework, plaintiff must first establish a

prima facie case. To establish a prima facie case of age discrimination, a

plaintiff must show that “(1) he was discharged; (2) he was qualified for the

position; (3) he was within the protected class at the time of discharge; and

(4) he was either i) replaced by someone outside of the protected class,

ii) replaced by someone younger, or iii) otherwise discharged because of his

age.” Jackson, F.3d at 378. Once a plaintiff has established a prima facie

case of discrimination, the “burden shifts to the employer to produce a

legitimate, nondiscriminatory reason for her termination.” Laxton v. Gap,

Inc., 333 F.3d 572, 578 (5th Cir. 2003). And should an employer produce a

legitimate, non-discriminatory reason for termination, the burden then

shifts back to plaintiff, who must produce “substantial evidence that the

proffered legitimate nondiscriminatory reason is a pretext for

discrimination.” Id. Even if pretext is shown, it may be insufficient to

establish discrimination “when the record conclusively reveals some other,

nondiscriminatory reason for the employer’s decision” or “when the plaintiff

creates only a weak issue of fact as to whether the employer’s reason was

untrue, and there was abundant and uncontroverted evidence that no

discrimination occurred.” Id. “A decision as to whether judgment as a

matter of law is appropriate ultimately turns on ‘the strength of the plaintiff’s

prima facie case, the probative value of the proof that the employer’s

explanation is false, and any other evidence that supports the employer’s

case and that properly may be considered on a motion for judgment as a

matter of law.’” Id. at 579 (citing Wallace v. Methodist Hosp. Sys., 271 F.3d

212, 220 (5th Cir. 2001)).

It is undisputed that (1) Stewart was discharged, (2) Stewart was

qualified for the position, and (3) Stewart was within the protected class at

the time of discharge. It is therefore only the fourth element—whether

Stewart was replaced by someone younger or otherwise discriminated

against because of her age—that is disputed.

Stewart claims that she was replaced by a younger employee named

Veronica Berton.21 Defendant counters that plaintiff has no evidence to

support this assertion because she has no personal knowledge that Berton

took over her role.22 But Stewart attaches to her opposition a declaration

from another witness, Michael Wheat, in which he declares: “I can state,

from personal knowledge and personal observation at the time, that

Veronica Berton took over the position formerly held by Plaintiff, Priscilla

Stewart, after Priscilla was fired.” Plaintiff therefore does have evidence on

which she can rely to establish that Veronica took over her duties. Although

21 See R. Doc. 1 at 2 ¶ 8; R. Doc 45 at 1-2; R. Doc. 45-3 at 2 ¶ 14.

22 See R. Doc. 35-2.

defendant disputes this element,23 Wheat’s affidavit is sufficient to create a

genuine dispute of fact as to whether Stewart can establish a prima facie case.

Once a plaintiff has established a prima facie case, the burden shifts to

defendant to provide a legitimate, nondiscriminatory reasons for the

plaintiff’s termination. Here, defendant asserts that plaintiff was

underperforming as a label clerk and had committed errors that harmed the

company financially and reputationally. To support this argument,

defendant points to a personnel action form, which notes that “Priscilla’s job

performance has not been up to par” and cites to a particular instance where

incorrect labeling resulted in the shipment of the wrong product abroad.24

Defendant also cites to the affidavits of Christy Corne, Smitty’s human

resources manager, and Steve Bennett, plaintiff’s supervisor, noting

Stewart’s poor job performance.25 Poor performance is a legitimate reason

23 See R. Doc. 35-2 at 9-10 (arguing that plaintiff cannot establish this

case because “Plaintiff was not replaced at Smitty’s by anyone, much less an

individual within the protected class or younger” and that “Plaintiff lacks

any competent summary judgment evidence that Plaintiff was otherwise

fired because of Plaintiff’s age.”). In disputing this element, defendant

identifies as evidence various affidavits that state that plaintiff’s position

was eliminated rather than filled by a younger employee. See, e.g., R. Docs.

35-8, 35-9, 35-10. Defendant also points to plaintiff’s notice of termination,

stating that the position will be allocated across cell leads. See R. Doc. 35-8

at 9.

24 R. Doc. 35-3 at 41.

25 See R. Doc. 35-9 at 1 ¶ 5 (Corne affidavit stating: “Stewart continuously

performed below standards and made a number of errors that were

for termination. See Ajao v. Bed Bath & Beyond, Inc., 265 Fed. App’x 258,

263 (5th Cir. 2008).

Defendant further asserts that the limited tasks associated with

Stewart’s role as a label clerk made her position a prime candidate for

consolidation. Plaintiff’s supervisor, Bennett, reached out to other

employees to see if any additional positions at the company were available

for plaintiff, but was told none were.26 Defendant states that because

plaintiff was not a candidate for absorbing additional tasks, she was

terminated when her position was eliminated and consolidated for business

purposes. To support this assertion, defendant points to the affidavits of

Bennett, Corne, and Tiffany Cessionnie, Smitty’s EVP Finance and

Compliance.27 It also points to the personnel action form terminating

Stewart. That form states:

problematic for Smitty’s”); R. Doc. 35-8 at 2 ¶¶ 10, 15 (Bennett affidavit

stating that “[f]rom the outset of her employment as a labeling clerk, Stewart

made numerous errors by printing the wrong product labels and/or printing

labels on the wrong color paper” and that Bennett “did not see any

improvement in Stewart’s performance”).

26 R. Doc. 35-8 at 3 ¶ 18 (Bennett affidavit stating that “he contacted other

individuals within Smitty’s in an attempt to locate another job to which

Stewart could be assigned”).

27 R. Doc. 35-8 at 3 ¶¶ 17, 20 (Bennett affidavit stating that “Stewart’s job

performance was not satisfactory and her role did not require a full time

employee to perform the labeling asks. Therefore he spoke with supervisors

regarding the termination of Stewart’s position and consolidation of her

tasks across cell leads” and that “[a]fter her termination, Stewart’s labeling

This termination comes due to re-organization and

consolidation. The position duties and

responsibilities will be allocated across the cell leads

and office manager position for which is [sic] already

filled. Our efforts to assist Mrs. Stewart to find

employment will extend past this termination with

letter(s) of recommendations [sic] and contact

information to praise her time and efforts here at

Smitty’s Supply.28

The act of eliminating a position and reassigning those roles to other

employees for cost-saving reasons is a legitimate business purpose. See, e.g.,

Kean v. Jack Henry & Assocs., Inc., 577 F. App’x 342, 352 (5th Cir. 2014).

Defendant has therefore established a legitimate, non-discriminatory

reason for plaintiff’s discharge. The burden then shifts back to plaintiff to

establish that this reason was pretextual, and that age discrimination was in

fact the true reason for her termination. Plaintiff has not created a genuine

issue of fact.

tasks were performed by various cell leads”); R. Doc. 35-9 at 2 ¶¶ 10, 12

(Corne affidavit stating that “[b]ased on the limited role of a labeling clerk,

Smitty’s determined that the role should be eliminated and the role’s tasks

assigned to other employees” and that “the decision was made to terminate

the labeling clerk position and spread the tasks across cell leads and other

employees”); R. Doc. 35-10 at 1 ¶ 6 (Cessionnie affidavit stating that

“[c]oupling the inefficiency of one employee solely performing the task of a

labeling clerk with Stewart’s substandard job performance, Smitty’s decided

to reorganize and consolidate the labeling clerk tasks across cell leads and

executive production coordinator.”).

28 R. Doc. 35-3 at 46.

Plaintiff looks only to three pieces of evidence to support her argument

that defendant’s explanation is pretextual. First, she relies upon the same

statement from Wheat’s declaration that she used to establish her prima facie

case.29 Second, she alleges the numerous errors she made on the job were

the fault of Smitty’s Supply, as she was never properly trained.30 Third, she

relies upon a statement in her own affidavit that Steve Bennett told her he

did not know why she was being terminated.31

None of this evidence establishes that a material disputed fact exists

with respect to defendant’s purported legitimate business explanation.

Wheat’s declaration states that he witnessed Berton take over Stewart’s

position doing labeling, but this fact is compatible with defendant’s

explanation that various other employees, potentially including Berton, took

over Stewart’s role of labeling clerk. Indeed, defendant points to deposition

testimony of plaintiff, in which she states that Berton was doing labeling

work even before plaintiff was terminated.32

29 R. Doc. 45-1 at ¶ 4.

30 Id. (“They subsequently required me perform [the task of labeling]

without training or direction.”).

31 R. Doc. 45-3 at 3 ¶ 22 (“Contrary to Steve Bennett’s statement in his

affidavit, he told me he did not know why I was being fired.”).

32 R. Doc. 51-1 at 5.

Plaintiff’s assertions that she was not adequately trained are

unsupported, and contradictory to many facts in the record, including the

fact that Smitty’s Supply asked Stewart to train Berton, as well as Bennett’s

affidavit stating that a subordinate coached plaintiff.33 Moreover, Stewart

does not debate the errors she made while working on the job that led her to

become a candidate for termination. Indeed, contrary to plaintiff’s assertion

that she should not have been fired after only one written warning, Smitty

Supply’s employee handbook states a single incident may be grounds for

termination.34

Finally, Stewart’s assertion that Bennett stated he did not know why

she was being terminated at one point does not create an issue of material

fact. Her assertion is contradicted by the fact that on the date of her

discharge she was presented with a personnel action form notifying Stewart

of her termination that set forth the same legitimate reason defendant now

asserts for having terminated Stewart.35 Bennett is listed as the contact

33 R. Doc. 35-8 at 2 ¶ 11.

34 See R. Doc. 45-3 at 9 (“Progressive discipline is discretionary and

Smitty’s Supply Inc. retains the right to discharge employees for a single

incident if, in the exclusive opinion of Smitty’s management, the offense is

sufficiently serious to warrant such action.”).

35 See R. Doc. 35-3 at 47 (“Mrs. Priscilla Stewart’s services are no longer

needed at SSI. This termination comes due to re-organization and

consolidation. The position duties and responsibilities will be allocated

across cell leads and office manger position for which is already filled.”).

person at the bottom of this form and it bears his initials.36 And Christy

Corne, Smitty Supply’s human resource manager, stated that she was part of

the decision to eliminate the role of label clerk as the position did not

encompass enough work for a full-time employee.37 Indeed, plaintiff does

nothing to controvert the support for Smitty’s explanation offered in Corne

or Cessionnie’s affidavits, or in her notice of termination bearing Bennett’s

name. At best, any inconsistency in Bennett’s statement “raise[s] only a weak

issue of fact and therefore cannot survive summary judgment.” Churchill v.

Texas Dep’t. of Criminal Justice, 539 F. App’x 315, 320-21 (5th Cir. 2013);

see also Smith v. Hewlett-Packard Co., 512 F. Supp. 2d 587, 602 (N.D. Tex.

2007) (holding that evidence of stray remarks could at best create a weak

issue of fact that racial discrimination occurred in light of abundant and

uncontroverted evidence to the contrary, and therefore the claim of

discrimination could not survive summary judgment).

36 Id.

37 See R. Doc. 35-2 at 2 ¶¶ 7, 10 (Corne affidavit stating that “[d]uring

Stewart’s employment as label clerk, it became clear the position of labeling

clerk does not encompass enough work to justify the tenure of a full time

employee without additional tasks being assigned to that employee” and that

“[b]ased on the limited role of a labeling clerk, Smitty’s determined that the

role should be eliminated and the role’s tasks be assigned to other employees

in the company. [Corne] was part of the discussion and determined that the

role of labeling clerk should be eliminated.”).

Nor does plaintiff explain how any of this evidence shows that

defendant’s explanation is pretextual or otherwise unworthy of credence.

And disregarding plaintiff’s conclusory assertions to the contrary, there is no

evidence in the record that allows for an inference of age discrimination.

Indeed, Stewart was hired at the age of 55,38 only three years before her

termination. And Bennett, who took part in the decision to terminate

plaintiff, is approximately plaintiff’s age.39 Courts have held that when an

employer hires an older employee, there is a presumption against age

discrimination, particularly when they are terminated by an employee of the

same age. See, e.g., Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.

1996); see also Fitzgerald v. Action, Inc., 521 F.3d 867, 877 (8th Cir. 2008)

(“We have noted it is unlikely a supervisor would hire an older employee and

then discriminate on the basis of age, and such evidence creates a

presumption against discrimination.”).

Because the evidence Stewart points to does not create an issue of

material fact as to the legitimacy of defendant’s proffered explanation for her

termination, she is left with only her belief that she was terminated due to

38 See R. Doc. 35-3 at 16 (Plaintiff’s deposition testimony stating she was

hired on March 14, 2014).

39 See R. Doc. 35-8 at 1 ¶ 3 (Bennett affidavit stating that “he is currently

59 years old”).

her age. And subjective belief of discrimination, however genuine, cannot be

the basis of judicial relief. See Little v. Republic Ref. Co., Ltd., 924 F.2d 93,

96 (5th Cir. 1991). Plaintiff’s age discrimination claim is therefore also

dismissed on the merits.

B. Americans with Disabilities Act

Plaintiff also alleges a claim under the Americans with Disabilities

Act.40 It is unclear from either from the complaint or the parties’ briefing

under which theory of ADA liability plaintiff brings her claim. Plaintiff

asserts in her complaint that she “believes and therefore avers that she was

terminated due to . . . an actual or perceived disability and/or retaliation for

having sough a reasonable accommodation and/or all of the foregoing.”41

The Court reads this paragraph broadly as asserting three claims under the

ADA: (1) a claim for failure to reasonably accommodate a disability, (2) a

claim for disability discrimination, and (3) a retaliation claim. The Court

addresses each in turn.

1. Failure to Exhaust Administrative Remedies

The Court first considers defendant’s arguments that plaintiff’s claims

under the ADA should be dismissed for failure to exhaust administrative

40 R. Doc. 1 at 3 ¶ 11(A).

41 R. Doc. 1 at 2 ¶ 9.

remedies. In her Charge of Discrimination with the EEOC, plaintiff checked

only a box noting that discrimination was based on “age” and left “disability”

and “retaliation” blank.42 Indeed, plaintiff acknowledged at her deposition

that she did not properly fill out the form.43 Nor does the right to sue letter

from the EEOC refer to either an age discrimination or a retaliation claim.44

In her Charge of Discrimination with the EEOC, plaintiff mentions her on-

the-job injuries in explaining her role as a label clerk, but does not allege any

discrimination based on disability.45

Although plaintiff acknowledges she failed to properly check the

appropriate box for any claim other than age discrimination on her Charge

of Discrimination with the EEOC, she argues that this failure is not fatal to

her claim. Rather, she asserts that because the text of the charge detailed her

injuries, she maintained this claim when she filed her charge of

discrimination. Plaintiff also points to an EEOC questionnaire, in which she

42 See R. Doc. 35-11 at 1.

43 See R. Doc. 35-3 at 31 (“So this form was probably not filled out the

way it should have been. Because I should have probably marked ‘retaliation’

and ‘disability,’ as well as any other thing I could put on there. But I didn’t

do that.”).

44 See R. Doc. 35-14 at 1.

45 See R. Doc. 35-11 at 1.

simply filled out: “Reason for Complaint: I am 40 years of age or older, A

[sic] disability.”46

Plaintiff is correct that failure to check a certain box on the Charge of

Discrimination form does not necessarily merit dismissal of a claim for

failure to exhaust administrative remedies. See Pacheco v. Mineta, 448 F.3d

783, 792 (5th Cir. 2006) (“[W]e do not require that a Title VII plaintiff check

a certain box or recite a certain incantation to exhaust his or her

administrative remedies before the proper agency.”). Courts instead focus

on the text of the Charge of Discrimination. Id. But here, plaintiff fails to

allege in her Charge of Discrimination facts that would reasonably trigger an

investigation by the EEOC for any claims under the ADA. Rather, the only

mention of her injuries in the Charge of Discrimination details how

defendant accommodated plaintiff’s injuries. The lack of any reasonable

accusation of disability discrimination, failure to accommodate, or

retaliation in the Charge of Discrimination—even when read broadly—

coupled with plaintiff’s failure to check the box for discrimination

demonstrates a failure to properly exhaust administrative remedies.

The cases plaintiff cites to resist this conclusion are inapposite. For

example in Rivera v. State of Louisiana, No. 04-3327, 2006 WL 901826

46 R. Doc. 45-3 at 4.

(E.D. La. Mar. 31, 2006), a court found that a plaintiff had not failed to

exhaust her administrative remedies for a racial discrimination claim where

she failed to check “race” on the Charge of Discrimination but “specifically

alleged in the text of the charge that she had been called various racially

derogatory names.” Id. at *4. Here, there were no specific allegations of

disability discrimination. Nor does Harris v. Honda, 213 F. App’x 258 (5th

Cir. 2006) support plaintiff’s position. Indeed, that case stands for the

proposition that an intake questionnaire—the only document on which

plaintiff seems to mention a disability—is not sufficient to exhaust

administrative remedies. Id. at 261-62. Plaintiff’s claim for disability

discrimination is therefore barred for failure to exhaust administrative

remedies.

2. Reasonable Accommodation Claim

Although the Court holds that plaintiff’s claims under the ADA are both

time-barred and barred for failure to exhaust administrative remedies, the

Court also considers defendant’s arguments that plaintiff cannot state a

prima facie case under the ADA. In order to maintain a claim for failure to

reasonably accommodate a disability under the ADA, a plaintiff must prove

that: “(1) the plaintiff is a qualified individual with a disability; (2) the

disability and its consequential limitations were known by the covered

employer; and (3) the employer failed to make reasonable accommodations

for such known limitations.” Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d

437, 442 (5th Cir. 2017) (citing Feist v. La., Dept. of Justice, Office of the

Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013)).

A “qualified individual” is one who “with or without reasonable

accommodation, can perform the essential functions of the employment

position that such individual holds or desires.” 42 U.S.C. § 12111(8). To be

considered “disabled” under the ADA, a plaintiff must suffer from “a physical

or mental disability that substantially limits one or more major life activities

of such individual; . . . [have] a record of such an impairment; or . . . be[]

regarded as having such an impairment.” Id. § 12102(1). Major life activities

include standing, lifting, and bending. Id. § 12102(2)(A). An employee may

be temporarily disabled in that they are at one point disabled, but later

recover and no longer suffer from the disability. An adverse employment

event after recovery from a disability provides no grounds for a failure to

accommodate claim under the ADA, as there remains no disability to

accommodate. See, e.g., E.E.O.C. v. Chevron Phillips Chem. Co., L.P., 570

F.3d 606, 618-19 (5th Cir. 2009) (noting that some disabilities are temporary

and nonpermanent).

Plaintiff alleges she suffered an on-the-job injury at her previous job at

Big 4 Trucking that resulted in partial loss of use and a disability related to

that injury.47 Plaintiff also alleges in her affidavit a second disability which

took place after she began working for defendant.48 Defendant, for its part,

does not dispute that plaintiff was at one point disabled by her injuries. But

defendant does dispute that plaintiff was disabled at the time of her

termination. It points to a work report noting that plaintiff had been

“released to full duty by her doctor.”49 It also points to portions of plaintiff’s

deposition testimony in which she states that she got better and was able to

go back to work, was able to work without any issues, and could come back

to a full-time office job.50

Plaintiff counters this evidence only by making the conclusory

statement that she was still disabled at the time that she was terminated.

Plaintiff points to no documents in the record—either in her deposition

testimony, medical records, or any other employment record—to support

this argument. Her only support is one sentence in her affidavit, which

states: “I continue to suffer limitations due to my knee injury.”51 This is a

47 R. Doc. 1 at 2 ¶ 5.

48 See R. Doc. 45-3 at 2 ¶ 10.

49 R. Doc. 35-3 at 40.

50 See R. Doc. 35-3 at 18, 19, 25.

51 R. Doc. 45-3.

conclusory statement of fact that cannot defeat a motion for summary

judgment, especially when defendant has pointed to plaintiff’s own

testimony and employment records stating she was cleared for duty. See

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)). Therefore, the Court cannot find plaintiff was disabled

at the time of her termination, and this claim cannot survive summary

judgment.

3. Disability Discrimination Claim

The Court next considers plaintiff’s ADA claim for disability

discrimination. In order establish a prima facie discrimination claim under

the ADA, Stewart must prove (1) that she has a disability; (2) that she was

qualified for the job; and (3) that she was subject to an adverse employment

decision on account of her disability. Zenor v. El Paso Healthcare Sys., Ltd.,

176 F.3d 847, 852-53 (5th Cir. 1999). In her opposition, plaintiff does not

seem to contest the dismissal of her disability discrimination claim. She

instead focuses her arguments solely on the reasonable accommodation

claim. And as discussed above, plaintiff cannot establish the first element

required for this claim—that she was disabled at the time of her termination.

This failure alone merits dismissal of this claim.

Moreover, plaintiff cannot establish the third element of a disability

discrimination claim—that she was subject to an adverse employment

decision on account of her disability. The sole piece of evidence that plaintiff

puts forth to establish a connection between her purported disability and her

termination is one paragraph in her affidavit, in which she conclusorily

states: “I believe I was fired due to an actual or perceived disability . . . .”52

But plaintiff points to no evidence to support this belief. And the plaintiff’s

subjective belief of discrimination is not sufficient to survive summary

judgment. See Little, 924 F.2d at 96. And more generally, this unsupported

allegation sets forth a conclusory fact, which also is not sufficient to defeat a

motion for summary judgment. See Galindo, 754 F.2d at 1216.

4. Retaliation Claim

Defendant also argues that plaintiff fails to state a prima facie case

under the ADA for retaliation. Plaintiff’s opposition contains no response to

defendant’s arguments regarding dismissal of the retaliation claim, thereby

tacitly consenting to its dismissal.

In any event, defendant is correct that plaintiff cannot maintain a claim

for retaliation under the ADA. “To establish a prima facie case of retaliation

under the ADA or Title VII, a plaintiff must show that (1) she participated in

52 R. Doc. 45-3 at ¶ 17.

an activity protected under statute; (2) her employer took an adverse

employment action against her; and (3) a causal connection exists between

the protected activity and the adverse action.” Feist v. La., Dept. of Justice,

Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013).

As with plaintiff’s disability discrimination claim, plaintiff’s retaliation

claim fails because she cannot establish a causal connection between the

protected activity and her termination. In her opposition, plaintiff cites to

no evidence in the record supporting a retaliation claim. Indeed, in the entire

record before the Court, the only support for any sort of a retaliation claim is

one conclusory assertion in plaintiff’s affidavit.53 This is insufficient to

survive summary judgment for the same reason plaintiff’s subjective belief

and assertion of a conclusory fact were insufficient to support her disability

discrimination claim.

C. Louisiana Employment Discrimination Law

Defendant moves to dismiss plaintiff’s claim under the Louisiana

Employment Discrimination Law. The LEDL prohibits both age and

disability discrimination. See La. R.S. 23:312 (prohibiting age

discrimination); La. R.S. 23:323 (prohibiting disability discrimination).

53 R. Doc. 45-3 at 2 ¶ 17 (“I believe I was fired due to an actual or perceived

disability, due to my age and in retaliation for making a workers

compensation claim.”).

With respect to claims of age discrimination, the LEDL is modeled after

federal law and should be construed in light of federal precedent. See, e.g.,

O’Boyle v. La. Tech Uni., 741 So. 2d 1289, 1290 (La. App. 2 Cir. 1999)

(holding that the Louisiana Act “mirrors the federal ADEA and should be

construed in light of federal precedent.”). Indeed, Louisiana courts apply the

same McConnell Douglas burden-shifting framework when analyzing claims

of age discrimination under the Louisiana law. See Taylor v. Oakbourne

Country Club, 663 So.2d 397, 383-84 (La. App. 3 Cir. 1995). For the reasons

explained above, plaintiff’s claim for age discrimination under the ADEA

cannot pass muster at the summary judgment stage. And for the same

reasons, plaintiff’s LEDL claim for age discrimination cannot survive

summary judgment and must be dismissed. The same is true for plaintiff’s

claims of disability discrimination under the LEDL. See, e.g., Barton v.

Checkers Drive-In Rests., Inc., No. 11-186, 2011 WL 1193061, at *3 (E.D. La.

March 28, 2011) (“Because Louisiana’s statute is based on the ADA, the result

of the court’s analysis under either statute must, necessarily, be the same.”).

Defendant also moves to dismiss plaintiff’s LEDL claim for disability

discrimination on the grounds that it is prescribed. The LEDL contains a

one-year prescriptive period, but allows for tolling if a federal action is

pending before the EEOC. It states:

Any cause of action provided in this Chapter shall be

subject to a prescriptive period of one year. However,

this one-year period shall be suspended during the

pendency of any administrative review or

investigation of the claim conducted by the federal

Equal Employment Opportunity Commission or the

Louisiana Commission on Human Rights.

La. R.S. 23:303(D).

Plaintiff was terminated in May 2017,54 but did not bring suit until

October 2018.55 Therefore, she filed her claim seventeen months after her

termination, and it is prescribed unless her claim was tolled. Plaintiff asserts

that her claim was tolled by her filing a Charge of Discrimination with the

EEOC. However, as explained above, the Court has found that plaintiff’s

Charge of Discrimination covered only age discrimination, not disability

discrimination. And because disability discrimination was not within the

scope of her Charge of Discrimination with the EEOC, she is unable to take

advantage of the statute’s tolling exception with respect to that claim. See

Walton-Lentz v. Innophos, Inc., 476 F. App’x 566, 572 (5th Cir. 2012)

(holding that a plaintiff’s hostile-work-environment charge was not subject

to tolling where it was not within the scope of the plaintiff’s EEOC charge

54 See R. Doc. 1 at 2 ¶ 7.

55 See generally id.

alleging age discrimination). Therefore, Stewart’s claim for disability

discrimination under the LEDL is prescribed and is dismissed.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS defendant’s motion for

summary judgment, and dismisses plaintiff's claims WITH PREJUDICE. As

the Court has granted defendant’s motion for summary judgment,

defendant’s motions in limine are DISMISSED WITHOUT PREJUDICE.

New Orleans, Louisiana, this _28th__ day of January, 2020.

_Lerak Vareee

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

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