# Stewart v. Smitty's Supply, Inc.

> District Court, E.D. Louisiana · January 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10185186

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** January 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185186

## How later opinions describe it (automated extraction)

- holding that the Louisiana Act “mirrors the federal ADEA and should be construed in light of federal precedent.”
- 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
- holding that the ninety-day statute of limitations after receipt of the right to sue letter in Title VII also applies to ADA claims

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185186. Public record. Not legal advice.