Schellhaas v. Southwest Airlines Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KURT SCHELLHAAS CIVIL ACTION

VERSUS NO. 18-7979

SOUTHWEST AIRLINES CO. SECTION: “B”(4)

ORDER AND REASONS

Before the Court are: (1) defendant Southwest Airlines

Company’s (“Southwest”) motion for summary judgment (Rec. Doc.

31); (2) plaintiff Kurt Schellhaas’ response in opposition (Rec.

Doc. 54); and (3) Southwest’s reply in support of their motion for

summary judgment (Rec. Doc. 47). For the reasons discussed below,

IT IS ORDERED that Southwest’s motion for summary judgment

(Rec. Doc. 31) is GRANTED;

IT IS FURTHER ORDERED that defendant’s motions in limine (Rec.

Docs. 32, 51) are DISMISSED AS MOOT.

FACTUAL BASIS AND PROCEDURAL HISTORY

Plaintiff Kurt Schellhaas is a resident of Jefferson Parish,

Louisiana. Rec. Doc. 1 at 1. Defendant Southwest is a Texas

corporation with a registered agent in Baton Rouge, Louisiana. Id.

Plaintiff seeks monetary damages from Southwest for employment

practices in violation of both federal and state statutes. Id. at

1-3.1

1 In a prior Order and Reasons, plaintiff’s claim pursuant to the Wendell H.

In February 1979, plaintiff began working with Southwest as

a ramp agent. Id. at 4. He worked with Southwest for approximately

38 years. Id. at 3. His most recent position was that of Cargo

Customer Service Supervisor. Id. at 4. As Cargo Customer Service

Supervisor, plaintiff was responsible for scheduling, training,

and supervising a team of Freight Agents who assisted in shipping

and receiving cargo. Rec. Doc. 31-5 at 1, Affidavit of Bridget

Butler.

On December 21, 2017, at the age of 59, he was discharged by

Southwest’s Supervisor of Ramp Operations, Adrian Cummins, and the

New Orleans Station Manager, Cindy Perrino. Rec. Doc. 1 at 3, 4.

Cindy Perrino supervised plaintiff from the time she became Station

Manager in 2006 until his termination. Southwest’s stated reason

for plaintiff’s discharge was that he shipped a generator in

violation of the company’s safety policy. Id. at 4.2 Southwest has

had a long-standing prohibition against shipping internal

combustion engines. Southwest’s Safe Transportation of Regulated

Materials Manual states in pertinent part:

Internal Combustion engines are considered Class 9

Miscellaneous HAZMAT if they have a trace of fuel

present. Even engines that have been drained contain

enough vapors to be considered a regulated material

aboard an aircraft. Examples of internal combustion

engines include weed trimmer, generators, chainsaws,

et. seq. (AIR 21) was dismissed for lack of federal subject matter jurisdiction.

(Rec. Doc. 21 at 7).

2 Plaintiff also notes in his complaint that “[he] sought and received

specific approval for this particular generator shipment from other employees

who also facilitated the shipment . . .” Rec. Doc. 1 at 6. However, this

contention is never referenced again in response to the instant motion for

lawnmowers, tillers, and engine-powered

skateboards/scooters.

Southwest airlines prohibits and does not transport

internal combustion engines whether they are used or

new.

Rec. Doc. 31-5 at 2, Affidavit of Bridget Butler.

Although Southwest’s policy states generators are not

permitted to be shipped, at one point, following Hurricane Maria,

Southwest temporarily altered their shipping policy to allow

employees to ship generators to Puerto Rico to assist with relief

efforts for a ten (10) day period. Rec. Doc. 31-5 at 2, Affidavit

of Bridget Butler. This stated change in policy was temporary, and

only allowed for the shipment of generators by Southwest employees,

not Southwest Customers. Id. Plaintiff admits he conducted the

shipment on behalf of Southwest customer Sal’s Seafood, using their

account. Rec. Doc. 31-2 at 59-60, Deposition of Plaintiff.

Plaintiff also claims that he believed the alteration to

Southwest’s longstanding prohibition was permanent, rather than

temporary, and that the shipment of internal combustion engines no

longer presented a safety risk. Rec. Doc. 54 at 4. Plaintiff

alleges he was denied employment opportunities, promotions, and

ultimately terminated because of his age. Rec. Doc. 1 at 6-7.

Plaintiff alleges Southwest wanted to replace him with a younger

and less-expensive employee. See id. at 4.

On February 18, 2018, plaintiff filed a charge with the Equal

Employment Opportunity Commission (“EEOC”) alleging age

discrimination and retaliation. See id. 8. On May 23, 2018,

plaintiff received a right to sue letter from the EEOC. Thereafter,

on August 21, 2018, plaintiff filed the instant suit alleging age

discrimination under federal and state law as well as unlawful

retaliation under the AIR 21 Act.3 Id. at 8-9. Plaintiff alleges

that he has suffered, inter alia, mental anguish, emotional

distress, and loss of wages and benefits. Id. at 9.

On November 27, 2018, Southwest filed a motion to dismiss for

lack of jurisdiction and failure to state a claim. See Rec. Doc.

8. The motion was granted in part with respect to plaintiff’s

claims pursuant to AIR 21 and denied in part with respect to

plaintiff’s claims under the ADEA and the LEDL. Rec. Doc. 21.

Defendants have filed the instant motion for summary judgment,

contending, among other things, that they are entitled to judgment

as a matter of law because in discovery “plaintiff admitted that

he could not identify any employment opportunities or promotions

that Southwest denied him because of his age.” Rec. Doc. 31-1 at

1.

LAW AND FINDINGS

a. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment is

appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

3 See Supra note 1.

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v.

Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). “As to

materiality, the substantive law will identify which facts are

material. Only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the

entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A genuine issue of material fact exists if

the evidence would allow a reasonable jury to return a verdict for

the non-moving party. Anderson, 477 U.S. at 248. The court should

view all facts and evidence in the light most favorable to the

non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453

F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are

insufficient to defeat summary judgment. Eason v. Thaler, 73 F.3d

1322, 1325 (5th Cir. 1996).

The movant must point to “portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex, 477 U.S. at 323. If and when the movant carries this

burden, the non-movant must then go beyond the pleadings and

present other evidence to establish a genuine issue. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). However, “where the non-movant bears the burden of proof

at trial, the movant may merely point to an absence of evidence,

thus shifting to the non-movant the burden of demonstrating by

competent summary judgment proof that there is an issue of material

fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d

616, 618 (5th Cir. 1994). “This court will not assume in the

absence of any proof that the nonmoving party could or would prove

the necessary facts, and will grant summary judgment in any case

where critical evidence is so weak or tenuous on an essential fact

that it could not support a judgment in favor of the [non-movant].”

McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).

b. ADEA Claim

A plaintiff bringing a discrimination claim pursuant to the

ADEA must prove, by a preponderance of the evidence that age was

the “but-for” cause of the challenged adverse employment action.

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). Claims

brought pursuant to the ADEA are to be analyzed under the three-

step, burden-shifting framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell framework:

First, the employee must raise a genuine issue of

material fact as to each element of his prima facie case.

Then, the employer must articulate a legitimate,

nondiscriminatory reason for its employment decision.

Finally, the employee must raise a genuine issue of

material fact as to whether the employer's proffered

reason was merely a pretext for age discrimination.

Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir.

2001)(internal citations omitted).

i. Exhaustion of Administrative Remedies

Defendant contends this Court should dismiss plaintiff’s ADEA

claim relating to the denial of employment opportunities and

promotions, as he has not exhausted his administrative remedies

with respect to those claims. Rec. Doc. 31-1 at 12.

To bring a claim under the ADEA, a plaintiff must first

exhaust his administrative remedies. See Patterson v. Houston

Indep. Sch. Dist., 2012 U.S. Dist. LEXIS 192253, at *20 (S.D. Tex.

2012) citing to Jefferson v. Christus St. Joseph Hosp., 374 F.

App’x 485, 489-90 (5th Cir. 2010); Julian v. City of Houston, Tex.,

314 F.3d 721, 725 (5th Cir. 2002). To properly exhaust his

administrative remedies, the employee must file a charge with the

EEOC and receive a notice of right to sue. See Pacheco v. Mineta,

448 F.3d 783, 788 (5th Cir. 2006); Taylor v. Books A Million, Inc.,

296 F.3d 376, 379 (5th Cir. 2002). The primary purpose of this

exhaustion requirement is to trigger both the investigatory and

conciliatory procedures of the EEOC, in attempt to reach a non-

judicial resolution of the alleged discrimination. See Pacheco,

448 F.3d at 789.

The scope of inquiry stemming from an EEOC charge “in a Title

VII action ‘is limited to the scope of the EEOC investigation which

can reasonably be expected to grow out of the charge of

discrimination.’” Young v. City of Houston, Tex., 906 F.2d 177,

179 (5th Cir. 1990)(internal citation omitted); see also Kojin v.

Barton Protective Servs., 339 F. Supp. 2d 923, 926 (S.D. Tex.

2004)(“Under both Title VII and the ADEA, a lawsuit stemming from

EEOC charges is limited in scope to the EEOC investigation that

could reasonably be expected to grow out of the charge of

discrimination.”). Only those claims that are “like or related to”

the charge’s allegations are deemed to be exhausted by the charge

filing. See Cargo v. Kansas City S., 2009 WL 1808458, at *1 (W.D.

La. June 22, 2009).

Further, “[a] discriminatory act alleged in a lawsuit but not

included in an EEOC charge is not ‘like or related to’ acts that

are alleged in an EEOC charge simply because both are based on the

same type of discrimination.” Id. at *2 (quoting Turner v. St.

Luke’s Episcopal Health Sys., 2008 WL 706709, *8 (S.D. Tex. Mar.14,

2008). Instead, “[i]n order for a particular ‘alleged

discriminatory act to fall within the scope of an EEOC charge,

there must be some factual relationship between the act and the

acts described in the charge, beyond the fact that both involve

the same employer and the same general type of discrimination.’”

George v. Diversified Foods & Seasonings, Inc., 13-5388, 2014 WL

379381, at *3 (E.D. La. Feb. 3, 2014)(quoting Turner, 2008 WL

706709, at *8. Claims asserted in a lawsuit that do not fall within

the purview of the EEOC charge and subsequent investigation, and

therefore do not satisfy the administrative exhaustion

requirement, should be dismissed. Id. at *5.

This exact issue was ruled upon in our prior Order and Reasons

regarding defendant’s motion to dismiss for failure to state a

claim. See Rec. Doc. 21. In that decision, we noted that plaintiff

had exhausted his administrative remedies with respect to his

claims under the ADEA. Id. Specifically, we noted that that

plaintiff alleged: (1) that he was discharged due to his age; (2)

facts to support that he exhausted his administrative remedies;

and (3) that he filed a charge with the EEOC on February 18, 2018

and received a right to sue letter on May 23, 2019. Id. Defendant’s

argument is substantially similar to their assertions set forth in

their original motion to dismiss, including with respect to whether

plaintiff has shown that the claim is properly related to the EEOC

filing. See Rec. Doc. 15-1; see also Rec. Doc. 31-1. Accordingly,

this court finds, as it has done before, that plaintiff’s claim

should not be dismissed on that ground.

In discovery, plaintiff was specifically asked to “identify

each and every employment opportunity at Southwest that you were

denied because of your age as alleged in paragraphs IV(B) 9 and 10

of your complaint,” he answered “none.” Rec. Doc. 31-6 at page 11.

In our previous Order and Reasons, we held that defendant’s

contention that plaintiff failed to state a prima facie case of

discrimination under the ADEA was unpersuasive, as “plaintiff

explicitly names Sean Reynold, who is allegedly more than 15 years

plaintiff’s junior, in his complaint.” Rec. Doc. 21 at 9. Further,

we noted that plaintiff and defendant both failed to include the

EEOC charge, notwithstanding each parties’ citations to the

charge. Id. Here, although defendant has cited a purported

admission by plaintiff that he can cite no employment opportunity

or promotion which he was denied, and has cited his EEOC complaint,

our prior holding still stands.

Although defendant contends that plaintiff has admitted to an

inability to identify an employment opportunity or promotion that

plaintiff was denied due to his age, the fact remains that

plaintiff explicitly referred to Sean Reynolds, an employee who

was given plaintiff’s job after his termination, and who at the

time was 15 years plaintiff’s junior. See Rec. Doc. 1 at 4. This

is evidence that a younger employee was treated differently with

respect to the same alleged employment opportunity. Plaintiff’s

newly propounded answer to defendant’s interrogatory, which

seemingly conflicts with their prior arguments, does not sway our

opinion. Plaintiff previously showed that a younger employee was

treated differently from plaintiff, in his complaint. Rec. Doc. 21

at 9.

ii. Plaintiff Cannot Show that He Would Not Have Been

Terminated, But for His Age, Under McDonnell

Douglas

Plaintiff is not able to show in this summary judgment context

that his termination would not have occurred but for his age as

articulated in McDonnell.4

A plaintiff bringing a discrimination claim pursuant to the

ADEA must prove, by a preponderance of the evidence that age was

the “but-for” cause of the challenged adverse employment action.

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). Claims

brought pursuant to the ADEA are to be analyzed under the three-

step, burden-shifting framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). As previously noted, under

the McDonnell framework:

First, the employee must raise a genuine issue of

material fact as to each element of his prima facie case.

Then, the employer must articulate a legitimate,

nondiscriminatory reason for its employment decision.

Finally, the employee must raise a genuine issue of

material fact as to whether the employer's proffered

reason was merely a pretext for age discrimination.

4 The framework for analyzing plaintiff’s ADEA claim is the same as the standard

for analyzing LEDL claims under Louisiana Law. The Supreme Court of Louisiana

noted in Labove v. Raferty, 802 So. 2d 566, 573 (La. 2001), “[b]ecause

Louisiana's prohibition against age discrimination is identical to the federal

statute prohibiting age discrimination, Louisiana courts have traditionally

looked to federal case law for guidance.” (citing King v. Phelps Dunbar, L.L.P.,

98-1805 (La. 6/4/99); 743 So. 2d 181, 187; Barbe v. A.A. Harmon & Co., 94-2423

(La. App. 4 Cir. 1/7/98); 705 So. 2d 1210, writ denied, 98-0526 (La. 5/15/98);

719 So. 2d 462)). The Louisiana Supreme Court in Labove further stated:

Disparate treatment cases are analyzed under the test developed for

Title VII plaintiffs in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668, 678 (1973). A prima facie case

of employment discrimination based on age requires a showing that

(1) the plaintiff is between forty and seventy years of age; (2)

the plaintiff was qualified for the job at issue; and (3) an

employee outside the protected class was treated more favorably.

The theory of the McDonnell Douglas prima facie case is that the

plaintiff must provide sufficient evidence to create an inference

of unlawful intent, and the defendant, at the close of the

plaintiff's evidence, generally challenges the prima facie case by

a motion for directed verdict.

Id

Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir.

2001)(internal citations omitted).

Plaintiff’s initial burden to satisfy his prima facie case is

satisfied by a showing that 1) he belongs to the protected class,

2) he was qualified for a position for which applicants were being

sought, 3) he suffered an adverse employment action, and 4) he was

replaced by a younger employee, or treated less favorably than a

similarly situated younger employee. Sandstad v. CB Richard Ellis,

Inc., 309 F.3d 893, 897 (5th Cir.2002).

Here, it is uncontested that plaintiff, being 58 years old at

the time of his dismissal, is a member of the protected class, and

was qualified for the position that he had. Plaintiff worked for

Southwest for nearly 40 years. Rec. Doc. 1 at 4. Further, he was

subjected to an adverse employment action, namely that he was

terminated from his position.5 Pegram v. Honeywell, Inc., 361 F.3d

272, 282 (5th Cir.2004)(“[A]n adverse employment action consists

of ‘ultimate employment decisions such as hiring, granting leave,

discharging, promoting, and compensating.’”)(emphasis added).

Plaintiff also explicitly references in his complaint that he was

replaced by Sean Reynolds, an employee 15 years his junior at the

time of plaintiff’s termination and replacement. Rec. Doc. 1 at 4.

Clearly, plaintiff has satisfied his initial burden under

5 Plaintiff was given the choice to resign or be terminated and chose the latter.

McDonnell to show that he has made out a prima facie case of

discrimination.

The next step in the McDonnell analysis shifts the burden of

production to the defendant to articulate a legitimate,

nondiscriminatory reason for its decision to terminate plaintiff.

Morris v. Town of Independence, 827 F.3d 396, 400 (5th Cir. 2016).

Defendant contends that the record undisputedly provides plaintiff

violated Southwest’s safety policy regarding shipping generators.

Southwest’s Safe Transportation of Regulated Materials Manual

states in pertinent part:

Internal Combustion engines are considered Class 9

Miscellaneous HAZMAT if they have a trace of fuel

present. Even engines that have been drained contain

enough vapors to be considered a regulated material

aboard aircraft. Examples of internal combustion engines

include weed trimmer, generators, chainsaws, lawnmowers,

tillers, and engine-powered skateboards/scooters.

Southwest airlines prohibits and does not transport

internal combustion engines whether they are new or

used.

Rec. Doc. 31-5 at 2, Affidavit of Bridget Butler.

Plaintiff was familiar with this policy, and aware that

historically, Southwest did not ship internal combustion

generators. Rec. Doc 31-2 at 50, Deposition of Plaintiff. Although

Southwest’s policy states that they do not permit generators to be

shipped, at one point, following Hurricane Maria, Southwest

temporarily altered their shipping policy to allow employees to

ship generators to Puerto Rico to assist with relief efforts for

a ten (10) day period. Rec. Doc. 31-5 at 2, Affidavit of Bridget

Butler. Plaintiff contends that while he was aware of the change

in policy, he believed, without material support, that the policy

was permanent, and there was no longer a safety issue with shipping

generators via plane. Rec. Doc. 54 at 4.

Southwest had a long-standing policy that shipping internal

combustion engines was prohibited, for the entirety of plaintiff’s

working relationship with defendant. 31-5 at 2, Affidavit of

Bridget Butler. Further, the stated change in policy was temporary,

and only allowed for the shipment of generators by Southwest

employees, not Southwest Customers. Id. Plaintiff conducted the

shipment on behalf of Southwest customer Sal’s Seafood. Rec. Doc.

31-2 at 59, Plaintiff’s Deposition. As such, plaintiff

undisputedly violated a long-standing, yet temporarily altered for

a period of just ten days, policy that had been in place for the

entirety of plaintiff’s career, notwithstanding his incorrect and

unfounded assumption to the contrary. As a result, defendant has

met its burden of articulating a legitimate non-discriminatory

reason for not promoting plaintiff.

Thus, the burden shifts to plaintiff to raise genuine issue

of material fact(s) as to whether the Defendant’s proffered reasons

are merely a pretext for age discrimination. Plaintiff has offered

no material facts to meet this burden. However, plaintiff does

note in his recently produced affidavit that his New Orleans

Station Manager, Cindy Perrino, made comments about plaintiff’ age

and stated, “the need for new blood in cargo.” Rec. Doc. 50-3 at

2, Plaintiff’s Affidavit. This was not mentioned in the record at

any point before the filing of the instant motion for summary

judgment. Further, the statement conflicts with plaintiff’s

deposition testimony. In Southwest’s reply brief, it points to a

section of plaintiff’s deposition that reads as follows: “Q. Did

Ms. Perrino or Mr. Cummins ever make any comments to you that

related to your age at all? A. Other than asking me when I was

going to retire, no.” Rec. Doc. 47-1 at 1. This Court therefore

disregards the statement in plaintiff’s new affidavit, as it

contradicts his deposition testimony. See Doe ex rel. Doe v. Dallas

Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000) (“a nonmoving

party may not manufacture a dispute of fact merely to defeat a

motion for summary judgment.”).

Plaintiff also contends that another, younger, Southwest

Employee, Beth Fielding, was terminated and subsequently

reinstated for shipping a generator is evidence that plaintiff’s

termination was age-based discrimination. This contention is

unpersuasive. Plaintiff failed to show that Fielding was similarly

situated to plaintiff, as such she cannot fairly be considered a

comparator. “To show disparate treatment, a plaintiff must

demonstrate that her employer treated another employee differently

‘under nearly identical circumstances,’ i.e., ‘when the employees

being compared held the same job or responsibilities, shared the

same supervisor or had their employment status determined by the

same person, and have essentially comparable violation histories.

Katseanes v. Time Warner Cable, Inc., 511 F. App'x 340, 345 (5th

Cir. 2013)(quoting Lee v. K.C. S. Ry. Co., 574 F.3d 253, 260 (5th

Cir.2009) (footnotes omitted)).

As an initial matter, both plaintiff and Fielding were

terminated as a result of their conduct. Rec. Doc. 54-5 at 11,

Beth Fielding’s Deposition. Plaintiff and Fielding also did not

share the same position, as Fielding was a Cargo Agent, whereas

plaintiff was a “Cargo Customer Service Supervisor.” Rec. Doc. 1

at 4; see also Rec. Doc. 54-5 at 11, Fielding Deposition. Plaintiff

also failed to establish that Fielding worked in New Orleans, or

under the supervision of Cindy Perrino, or that he and Fielding

had comparable violation histories, as addressed below. Further,

Fielding was a Union Member, whereas plaintiff was not. Therefore,

plaintiff’s attempt to establish that a similarly situated, and

younger employee was treated differently fails.

Plaintiff offers no other facts to suggest that plaintiff’s

termination was pretext for discrimination. Southwest notes that

plaintiff had already been terminated once for theft and dishonesty

in 2006 and was subsequently reinstated to his position after an

investigation. Rec. Doc. 31-1 at 3. This was in reference to his

instructions to a Customer Service Agent to provide airline tickets

for him, his daughter, and friend at a discounted price. Id. Again,

plaintiff stated that he was unaware that’s Southwest’s policies

prevented him from receiving discounted tickets. Id. After a

determination that plaintiff had participated in conduct that

Southwest could not “condone or overlook” it agreed to reinstate

him only if he reimbursed the company for its lost revenue, which

he subsequently did. Id.

After plaintiff’s reinstatement, with back pay and without

any loss of seniority or benefits, he engaged in a good working

relationship with his supervisor for approximately ten years. Id.

at 3–4. Rec. Doc. 31-2 at 29, Plaintiff’s Deposition (“the

relationship started out good in 2017.”); see also 31-3 at 1-2,

Declaration of Perrino (“From the time that Southwest reinstated

him in until June 2017, I felt that [plaintiff] and I had a good

working relationship. He received favorable performance

evaluations and I never took any disciplinary action against

him.”). Further, in his deposition testimony, plaintiff stated

that he was satisfied with his performance reviews and deemed them

to be fair. Rec. Doc. 31-2 at 28, Plaintiff’s Deposition. Plaintiff

was also issued a written warning in 2017 to address several

performance related issues. Rec. Doc. 31-2 at 32. Specifically,

the document referred to plaintiff disseminating incorrect

information to another employee and making an unapproved

scheduling decision. Id. at 81, Disciplinary Warning.

With respect to the issue over which plaintiff was ultimately

terminated, the decision was not taken lightly by Perrino, and not

based on plaintiff’s age. The record reflects that Perrino was

fifty-six at the time that plaintiff was terminated, placing her

and plaintiff in the same class. Rec. Doc. 31-3 at 3. Further,

although Perrino replaced plaintiff with a younger employee, Sean

Reynolds, the stated reasons for his lateral replacement were that

he had worked for Southwest for 23 years, had extensive experience

with cargo, had previously worked as an operations supervisor, and

his position had recently been eliminated. Id.

Defendant has shown that it is entitled to judgment as a

matter of law, as plaintiff cannot present evidence to meet his

burden pursuant to McDonnell that defendant’s stated reason for

terminating him amounted to pretext for discrimination based on

age. Plaintiff: (1) undisputedly violated a long-standing

Southwest policy, which was temporarily altered and resumed

effectiveness after the stipulated ten-day period; (2) had already

been terminated once for dishonesty and theft, after which he was

reinstated; and (3) had recently received a written warning

regarding performance related issues. When these facts are taken

together, it is evident that plaintiff will not be able to meet

his burden under McDonnel. Accordingly, summary judgment is

granted in favor of defendant Southwest regarding plaintiff’s

claims under the ADEA and LEDL.

New Orleans, Louisiana this 14th day of July, 2020.

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE