# Schellhaas v. Southwest Airlines Company

> District Court, E.D. Louisiana · July 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10185696

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** July 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185696. Public record. Not legal advice.