Sutherland v. Edison Chouest Offshore, Inc

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ROGER SUTHERLAND CIVIL ACTION

VERSUS NO. 19-414

EDISON CHOUEST OFFSHORE, SECTION “R” (1)

INC., ET AL.

ORDER AND REASONS

Before the Court is defendants Edison Chouest Offshore., Inc.,

Offshore Service Vessels, L.L.C., and Galliano Marine Service, L.L.C.’s

motion for summary judgment.1 Because there is no genuine dispute as to

any material fact, and because defendants are entitled to a judgment as a

matter of law, the Court grants defendants’ motion.

I. BACKGROUND

Plaintiff, Roger Sutherland, brings claims of discrimination under the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 631, et seq.; and

the Louisiana Employment Discrimination Law (“LEDL”), La. R.S. § 23:301,

1 R. Doc. 60.

et seq. Sutherland brought this suit against Edison Chouest Offshore, Inc.

(“Edison Chouest”), Offshore Service Vessels, L.L.C. (“Offshore Service”),

and Galliano Marine Service, L.L.C. (“Galliano”) under the theory that they

were his “joint employer.”2

Sutherland was 69 years old when the events at issue occurred3 and 70

when he filed the complaint in this case.4 He began working for defendants

as a deckhand on February 17, 1998.5 By April 25, 2012, Sutherland had been

promoted to the position of master captain.6

On November 14, 2017, pursuant to defendants’ Drug and Alcohol

Procedure, plaintiff reported7 taking clonidine, a “sedating blood pressure

medication,” which is, according to the procedure, “incompatible with safety-

sensitive duties.”8 This triggered defendants’ reporting protocols and

Sutherland was referred to Family Medical Services (“FMS”) for further

evaluation.9

2 R. Doc. 1 at 2, ¶ 9.

3 R. Doc. 70-5 at 1 (Cardiology Clinic Note).

4 Id. at 6, ¶ 34.

5 R. Doc. 60-2 at 2.

6 Id.

7 R. Doc. 70-4 at 87 (Medication Reporting Form).

8 R. Do. 70-4 at 86 (Drug and Alcohol Procedure).

9 Id. at 85.

On January 10, 2018, Sutherland underwent an evaluation at FMS.10

Medical records from the evaluation list several medications Sutherland was

taking for high blood pressure11 and six blood pressure readings.12 Dr.

Darren Duet, who performed the evaluation, noted an “abnormal EKG” and

“irregular [heart] rhythm.”13 According to Dr. Duet, these diagnoses and

high blood pressure are among several risk factors for coronary artery

disease.14 In addition, Sutherland smokes about a “pack a day,”15 and “is

absolutely against stopping smoking.”16 After the evaluation on January 10,

Dr. Duet restricted Sutherland from maritime duty pending further

10 R. Doc. 70-4 at 88 (FMS Medical Evaluation).

11 Id. The evaluation shows that Sutherland’s medications included

Dystolic, Amlodipine, which replaced Clonidine, and Losartan. Id. The

patient notes reflect that Sutherland last took Clonidine in December 2017.

R. Doc. 60-4 at 30 (Communication Log/Progress Notes); R. Doc. 70-4 at

90 (Letter from Dr. Miley).

12 R. Doc. 70-4 at 88 (FMS Medical Evaluation). The six blood pressure

readings are 160/82, 157/71, 180/94, 198/112, 150/64, and 162/71.

13 R. Doc. 70-4 at 91 (Pending Medical Records Form). A different form,

also dated January 10, 2018, described Sutherland’s diagnoses as

“hypertension” and “abnormal EKG.” R. Doc. 70-4 at 92 (FMS Post

Incident/Tracking Record).

14 R. Doc. 70-3 at 57 (Duet Deposition at 28:13-18) (listing abnormal

EKG, elevated blood pressure, heart rate, changes in vital signs, symptoms,

being a man, and abnormal vital signs as “risk factors” for coronary artery

disease); R. Doc. 60-3 at 49 (Duet Deposition at 34:17-20) (also listing age

and smoking).

15 R. Doc. 60-3 at 52 (Sutherland Deposition at 13:12-13).

16 R. Doc. 70-5 at 3 (Cardiology Clinic Note). This note was made by Dr.

Steven Eilen on March 8, 2018, after the January 10 evaluation.

evaluation. Galliano effectuated Dr. Duet’s restriction by scheduling

Sutherland in a position involving non-maritime duty.17

Dr. Duet referred Sutherland to a cardiologist, Dr. Steven Eilen. Dr.

Duet “required [Sutherland] to undergo a cardiac exercise stress test using

the Standard Bruce Protocol and quantification of maximum exercise

tolerance to ensure he was medically fit for duty and could comply with”

applicable U.S. Coast Guard guidelines.18 According to Dr. Duet, “an exercise

stress test or equivalent” is the only way to diagnose a patient with coronary

artery disease.19 The U.S. Coast Guard’s Merchant Mariner Medical Manual

(“Manual”) sets out the appropriate standards: to evaluate an individual for

coronary artery disease, the person should complete a treadmill stress test

“to at least 7.5 minutes of exercise, 8 metabolic equivalents (METS) of work,

and 85% of maximum predicted heart rate.”20

Sutherland took a treadmill stress test on February 21, 2018, but did

not achieve the levels set out in the Manual.21 After four minutes and

twenty-two seconds, Sutherland “reported fatigue and leg pain which

17 R. Doc. 70-5 at 48, ¶ 3 (Declaration of Dionne Chouest Austin).

18 R. Doc. 70-4 at 67, ¶ 5 (Declaration of Dr. Darren Duet)

19 R. Doc. 60-3 at 50 (Duet Deposition at 43:17-44:6).

20 R. Doc. 70-4 at 29.

21 R. Doc. 70-4 at 62 (Stress Test Results).

resulted in termination of the [stress test].”22 He reached 80% of his age-

predicted maximum heart rate and 7 METS.23 The test was ruled “non-

diagnostic” because Sutherland did not reach 85% of his age-predicted

maximum heart rate.24

On March 8, 2018, Dr. Eilen examined Sutherland and released him to

return to work with no restrictions, even though Sutherland did not complete

a diagnostic stress test. 25 Dr. Eilen explained in his deposition that a non-

diagnostic result means that Sutherland “didn’t have a problem” at the

achieved workload, but if Sutherland had lasted longer, “maybe something

else would have shown up.”26

The next day, March 9, 2018, Dr. Duet reviewed the results of the stress

test and Dr. Eilen’s release.27 Dr. Duet stated that because he could not rule

out that Sutherland had obstructive coronary artery disease, which would

preclude his being fit for duty, and because he could not meet the minimum

fitness standards for a mariner’s position, he maintained Sutherland’s

22 Id.

23 Id.

24 R. Doc. 70-4 at 5 (Eilen Deposition at 26:14-24).

25 R. Doc. 70-5 at 7 (Cardiology Clinic Note); R. Doc. 70-4 at 74 (Return

to Work Form).

26 R. Doc. 70-4 at 5 (Eilen Deposition at 26:14-24).

27 R. Doc. 70-4 at 67 (Declaration of Dr. Darren Duet).

restriction from maritime service and limited him to light duty.28 In light of

Dr. Duet’s limitation, Galliano told Sutherland that he would remain on light

duty until he “was able to demonstrate his fitness for duty and ability to meet

the U.S. Coast Guard’s minimum fitness requirements.”29 There is no

evidence that Sutherland ever attempted to demonstrate his fitness by

completing a diagnostic stress test.

Following Dr. Duet’s determination, Sutherland received light-duty

work assignments as a mate at the Topship shipyard starting on March 28,

2018.30 According to Sutherland, his new assignments came with a

reduction in pay from a day rate of $675 to $400 per day.31 Sutherland stated

that his last day at Topship was September 4, 2018 and alleges that Brett

Borne, the corporate director of human resources for Galliano,32

“terminated” him by informing him that light-duty positions were no longer

available.33 Defendants submitted evidence that worsening economic

conditions made it impracticable to continue to pay day rates to their

28 Id.

29 Id.; R. Doc. 70-5 at 48, ¶ 3 (Declaration of Dionne Chouest Austin).

30 See R. Doc. 70-3 at 26 (Employment Logs).

31 R. Doc. 70 at 5 n. 34; R. Doc. 70-3 at 30-31 (Sutherland Deposition at

129:25-130:14).

32 R. Doc. 70-2 at 41-42 (Borne Deposition at 8:21-9:3).

33 R. Doc. 70-3 at 35 (Sutherland Deposition at 158:1-6); R. Doc. 70-5 at

14 (EEOC Charge Against Edison Chouest).

shipyard workers, like Sutherland, who were restricted from maritime

service.34

Defendants state that they told Sutherland that he could continue

working but would receive an hourly rate and would no longer receive

housing or meals.35 According to Dionne Chouest Austin, who serves as

general counsel for “Edison Chouest Offshore [c]ompanies (“ECO”) and, as

such, serve[s] as general counsel for Galliano,”36 Sutherland refused this

arrangement.37

Sutherland admits that he was later offered a light-duty position at

Topship at an hourly rate.38 He considered the offer unreasonable because

the job required a commute of 116 miles and did not include housing.39

Nevertheless, plaintiff stated that he never refused the offer and would have

accepted it at a higher pay-rate than had been offered.

34 R. Doc. 60-2 at 8; R. Doc. 70-5 at 49, ¶ 10 (Dionne Chouest Austin

Declaration).

35 R. Doc. 60-2 at 8-9.

36 R. Doc. 70-5 at 48, ¶ 2 (Dionne Chouest Austin Declaration)

37 Id. at 49, ¶ 10.

38 R. Doc. 70-3 at 38 (Sutherland Deposition at 181:2-182:11).

39 Id. at 39 (Sutherland Deposition at 182:1-4). Sutherland describes

the mileage as both 116 and 119 miles at different times in his deposition.

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,

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., 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. 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 for summary judgment on plaintiff’s claims for

disability discrimination under the ADA, age discrimination under the

ADEA, and parallel disability and age discrimination claims under the LEDL.

A. Jurisdictional Prerequisites

The defendants first contend that the Court should not reach the merits

of plaintiff’s federal claims for two reasons: first, of the three named

defendants, only Galliano was plaintiff’s actual employer; and second,

plaintiff failed to exhaust his administrative remedies by timely bringing

EEOC charges against Galliano and Offshore Service.

1. Employer-Employee Relationship

As previously noted, plaintiff brought this suit against Edison Chouest

Offshore., Inc., Offshore Service Vessels, L.L.C., and Galliano Marine

Service, L.L.C. In 1996, Edison Chouest, Inc. merged with Edison Chouest,

L.L.C., with the L.L.C. as the surviving entity.40 In 2006, Edison Chouest,

L.L.C. changed its name to Offshore Service Vessels, L.L.C.41 “Edison

Chouest Offshore” continues to exist as a “tradename” for Edison Chouest

Offshore companies.42 The Court refers to the group of companies that goes

under the tradename, Edison Chouest Offshore, as “ECO” and the now-

dissolved defendant entity, Edison Chouest Offshore, Inc. as “Edison

Chouest.” Offshore Service, the entity that survived the merger and

underwent a name change, owns vessels. Galliano is a payroll company for

Offshore Service and other ECO companies, including FMS.43

Plaintiff argues that even if Galliano is formally his employer listed on

his paycheck,44 Offshore Service and Galliano are an “integrated employer”

for the purposes of his claims.45 “[T]he rule has emerged that superficially

distinct entities may be exposed to liability upon a finding that they represent

a single, integrated enterprise: a single employer.” Trevino v. Celanese

Corp., 701 F.2d 397, 404 (5th Cir. 1983). The four-part Trevino test to

establish whether firms are single employers considers (1) interrelation of

40 R. Doc. 70-5 at 49, ¶ 12 (Declaration of Dionne Chouest Austin).

41 Id.

42 See R. Doc. 70-2 at 80 (22:7-8).

43 See Id. at 9 (9:7-9).

44 R. Doc. 70-3 at 28 (Sutherland Deposition at 127:16-20).

45 R. Doc. 70-1 at 1, 8, ¶¶ 1, 26 (Plaintiff’s Statement of Contested Material

Facts Presenting a Genuine Issue).

operations; (2) centralized control of labor relations; (3) common

management; and (4) common ownership or financial control. Schweitzer

v. Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir. 1997) (citing

Trevino, 701 F.2d at 404). The second factor is the most important, and

courts “refin[e] their analysis to the single question[:] ‘What entity made the

final decisions regarding employment matters related to the person claiming

discrimination?’” Id.

Regarding that second factor, plaintiff introduced several facts that

point towards centralized control of labor relations between Galliano and

Offshore. Brett Borne, “corporate director of HR” for all ECO companies,46

indicated that members of the Chouest family made decisions on employee

pay for ECO employees.47 Dionne Chouest Austin expressly acknowledged

participating in the decision to stop employing mariners at the Topship

shipyard and to pay only hourly rates without housing and meals.48 This

evidence demonstrates that “final decisions regarding employment matters”

for Galliano and other ECO companies, including decisions related to

plaintiff, were made by the same decisionmakers. Id. Austin serves as

46 R. Doc. 70-2 at 41-42 (Borne Deposition at 8:21-9:15).

47 Id. at 43-44 (Borne Deposition at 44:23-45:2).

48 R. Doc. 70-2 at 81 (Austin Deposition at 50:2-16).

general counsel to all ECO entities, including Galliano.49 Additionally,

plaintiff showed that the ECO companies share human resources and

benefits departments. As noted, Brett Borne oversaw “the human resource

functions for [all] [ECO] companies.”50 Borne also stated that he is “in

charge” of the ECO benefits department.51 Further, Borne testified that Gina

Cheramie/Pitre52 is both the benefits director of Galliano and “help[s]

oversee some of the other sites” in her role as benefits director of ECO in

general.53 These facts are sufficient to establish the essential second factor

of the Trevino test.

Plaintiff also presented evidence satisfying the remaining Trevino

factors. He established interrelation of operations among the ECO

companies. Galliano is the payroll company for Offshore Service, which

provides vessels. Human resource functions are centrally managed across

ECO companies. Further, plaintiff’s employment paperwork contains

49 R. Doc. 70-5 at 48, ¶ 2 (Declaration of Dionne Chouest Austin).

50 R. Doc. 70-2 at 43 (Borne Deposition at 8:13-9:24).

51 Id. at 45 (Borne Deposition at 54:11-13).

52 Plaintiff refers to Gina Cheramie and Gina Pitre as the same individual

and defendant never contests the depiction.

53 Id. at 51 (Borne Deposition at 76:13-21). Cheramie/Pitre’s email

signature describes her title as “Benefits Director, Edison Chouest Offshore.”

R. Doc. 70-2 at 56 (FMLA Email and Attachments). An attachment sent

through her email describes her as “Benefits Director/ Galliano Marine

Services.” Id. at 62.

references to Galliano, ECO, Edison Chouest Offshore, Edison Chouest

Offshore, L.L.C., and Chouest Health Group. 54 Many of these documents

contain references to more than one ECO company within the same

document.55 Austin serves as an officer, along with Dino Chouest, of both

Galliano and Offshore.56 Both firms are domiciled at 16201 East Main Street,

Cut Off, Louisiana 70345.57 Furthermore, Austin stated that she serves as

general counsel for all ECO companies, including Galliano and Offshore

Service.58 For all of the foregoing reasons, plaintiff satisfies the Trevino test.

Galliano and Offshore Service are a single employer for the purposes of his

claims.

2. Exhaustion of Administrative Remedies and Timeliness

The Court next considers whether plaintiff timely exhausted his

administrative remedies against defendants. Defendants argue that plaintiff

failed to bring EEOC charges against the appropriate parties within the

applicable deadline.

Before filing suit against an employer for a violation of the ADA, an

employee must comply with the ADA’s administrative prerequisites. See

54 R. Doc. 70-2 at 1-38 (Employment Paperwork).

55 See id. at 1.

56 Id.

57 Id.

58 R. Doc. 70-5 at 48, ¶ 2 (Declaration of Dionne Chouest Austin).

Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996). The ADA

incorporates the enforcement procedures of Title VII of the Civil Rights Act

of 1964, set forth in 42 U.S.C. § 2000e-5. See 42 U.S.C. § 12117. Accordingly,

a plaintiff must file a timely charge of discrimination with the EEOC and

receive a statutory right-to-sue letter before filing suit in federal court. Dao,

96 F.3d at 788-89. The amount of time that a plaintiff has to file a charge

with the EEOC depends on whether the unlawful practice occurred in a

“nondeferral” state or a “deferral” state. Clark v. Resistoflex Co., 854 F.2d

762, 765 (5th Cir. 1988). Louisiana is a deferral state for purposes of

the ADA and the ADEA, which means that plaintiff was required to file his

charge within 300 days of the alleged unlawful employment act. See Talas

Patton v. Jacobs Eng'g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017); Walton-

Lentz v. Innophos, Inc., 476 F. App'x 566, 570 (5th Cir. 2012); Conner v. La.

Dep’t of Health and Hosps., 247 F. App'x 480, 481 (5th Cir. 2007) (citing La.

R.S. 51:2231 et seq.).

Further, the “unnamed party rule,” a general rule followed by the Fifth

Circuit, is that “a party not named in an EEOC charge may not be sued under

Title VII.” Simbaki, Ltd., 767 F.3d at 481. Defendants point out that

Plaintiff’s initial charges named only Edison Chouest, the now-dissolved

predecessor of Offshore Service, and FMS.

The Fifth Circuit has recognized two exceptions to the unnamed party

rule: “identity-of-interests” and “actual notice.” Id. at 484. The identity-of-

interest test is as follows:

1) whether the role of the unnamed party could through

reasonable effort by the complainant be ascertained at the time

of the filing of the EEOC complaint;

2) whether, under the circumstances, the interests of a named

[party] are so similar [to] the unnamed party’s that for the

purpose of obtaining voluntary conciliation and compliance it

would be unnecessary to include the unnamed party in the EEOC

proceedings;

3) whether its absence from the EEOC proceedings resulted in

actual prejudice to the interests of the unnamed party;

4) whether the unnamed party has in some way represented to

the complainant that its relationship with the complainant is to

be through the named party.

Id. at 482-83 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977)).

Under the actual notice test, if the “‘unnamed party has been provided with

adequate notice of the charge, under circumstances where the party has been

given the opportunity to participate in conciliation proceedings aimed at

voluntary compliance,’ . . . ‘the charge is sufficient to confer jurisdiction over

that party.’” Id. at 483 (quoting Eggleston v. Chicago Journeymen

Plumbers' Local Union, 657 F.2d 890, 905 (7th Cir. 1981)).

The undisputed facts show that Offshore Service had actual notice of

the EEOC charge. Indeed, Brett Borne is the joint human resources director

for all ECO companies, including Offshore Service, and acknowledged in his

deposition that he received the charge against Edison Chouest.59 Moreover,

the EEOC never attempted conciliation in this case. Thus, Offshore Service

was not deprived of the opportunity to participate in EEOC proceedings. See,

e.g., Brodie v. New York City Transit Auth., No. 96-6813, 1998 WL 599710,

at *7 (S.D.N.Y. Sept. 10, 1998) (“In general, where the EEOC makes no [effort

at investigation or conciliation], courts will find that the unnamed party has

experienced no prejudice.”). Accordingly, the Court finds that Offshore

Service received actual notice of the EEOC charge and cannot rely on the

unnamed party rule.

Furthermore, because Offshore Service and Galliano are a single

employer, “notice to one [is] notice to the other.” Sedlacek v. Hach, 752 F.2d

333, 336 (8th Cir. 1985). Thus, Galliano also cannot rely on the unnamed

party rule.

The Court’s ruling as to notice is consistent with the Supreme Court’s

admonition that “a technical reading [of Title VII’s and the ADA’s procedural

provisions] would be particularly inappropriate in a statutory scheme in

which laymen, unassisted by trained lawyers, initiate the process.” Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 397 (1982) (internal quotations

59 R. Doc. 70-2 at 48-49 (Borne Deposition at 66:23-69:13).

marks and citation omitted); see Banda v. Owens Corning Corp., No. 17-

1787, 2018 WL 6726542, at *13 (N.D. Tex. Dec. 21, 2018), appeal dismissed,

No. 19-10075, 2019 WL 3297257 (5th Cir. Mar. 12, 2019).

Plaintiff brought EEOC charges against Edison Chouest60 on

November 1, 2018—within the 300-day deadline for all alleged

“discriminatory acts” that occurred on January 10, March 8, March 28, and

September 4.61 Because this charge was sufficient to notify Offshore Service

and Galliano, plaintiff exhausted his administrative remedies by timely

bringing the EEOC charge against Edison Chouest.

B. Americans with Disabilities Act

The Fifth Circuit applies the McDonnell Douglas burden-shifting

framework to ADA claims. Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir.

2019). Under this formula, plaintiff carries the initial burden of establishing

a prima facie claim of discrimination. Id. at 341. If he succeeds, the burden

shifts to the defendants to articulate a “legitimate, non-discriminatory

reason” for the action. Id. Finally, if defendants satisfy their burden, the

burden shifts back to plaintiff to show pretext. Id.

60 R. Doc. 70-5 at 14 (EEOC Charge Against Edison Chouest).

61 R. Doc. 70 at 14.

To carry his initial burden of proving a prima facie

discrimination claim under the ADA, plaintiff must establish “(1) he has

a disability or was regarded as disabled; (2) he was qualified for the job; and

(3) he was subject to an adverse employment decision because of

his disability.” Id. (citing Williams v. J.B. Hunt Transp., 826 F.3d 806, 811

(5th Cir. 2016)).

1. Direct Threat

The primary question raised by the parties’ briefing is whether plaintiff

was a “direct threat” and thus not qualified to serve as a master.62 The ADA

provides that “[employment] qualification standards may include a

requirement that an individual shall not pose a direct threat to the health or

safety of other individuals in the workplace.” 42 U.S.C. § 12113(3) (internal

quotation marks omitted). The EEOC defines a “direct threat” as “a

significant risk of substantial harm to the health or safety of the individual

or others that cannot be eliminated or reduced by reasonable

accommodation.” 29 C.F.R. § 1630.2(r).

When an employer relies on a medical evaluation to conclude that

employee poses a direct threat, the Fifth Circuit has held that “the question

is whether [the employer] reasonably concluded that [the employee] posed a

62 R. Doc. 60-2 at 17.

direct threat via an individualized assessment that relied on the best

available objective evidence.” Nall, 917 F.3d at 344; see 29 C.F.R.

§ 1630.2(r). The Fifth Circuit in Nall prescribed the following framework for

evaluating a direct threat defense: “[T]he question is whether there is any

evidence in the record that creates a genuine issue of material fact as to

whether [defendant] meaningfully assessed [plaintiff’s] ability to perform his

job safely and reasonably concluded that he posed a direct threat.” Nall, 917

F.3d at 344. Whether an employer appropriately makes a direct threat

determination depends on first, whether defendant conducted a “meaningful

assessment” that is individualized and based on the essential functions of the

job, and second, whether that assessment led the employer to reasonably

conclude that the employee posed a threat to the safety of himself or others

“based on a reasonable medical judgment that relies on the most current

medical knowledge and/or the best available objective evidence.” Id. at 342

(quoting Echazabal v. Chevron U.S.A., Inc., 536 U.S. 73, 86 (2002) (internal

quotation marks omitted)). The U.S. Supreme Court and the Fifth Circuit

have “made clear” that an employer’s direct threat determination must not

result from a “categorical conclusion that an employee with a particular

disability cannot safely perform a job.” Id. at 344 (citing Echazabal, 536 U.S.

at 86).

Plaintiff admits that Dr. Duet, the FMS physician who examined

Sutherland, “never cleared Mr. Sutherland for maritime service, and based

on Dr. Duet’s medical opinion, Galliano could not safely schedule Mr.

Sutherland for a job that required him to work offshore.”63 In other words,

plaintiff admits that Dr. Duet’s opinion goes to Sutherland’s ability to

“perform his job safely.” He apparently argues that the assessment was not

“meaningful” or that defendant did not “reasonably conclude[]” that

Sutherland posed a direct threat. Id.

i. Meaningful assessment

The Court’s determination of whether defendants meaningfully

assessed plaintiff’s ability to perform his job safely turns on whether

defendants made an “individualized assessment” based on the “essential

functions” of Sutherland’s job as a master. See id. at 342, 344.

To establish essential job functions, “written job descriptions warrant

deference,” but the question is “‘whether the employer actually requires

employees in the position to perform the functions that the employer asserts

are essential.’” EEOC v. Vicksburg Healthcare, L.L.C., 663 F. App’x 331, 335

(5th Cir. 2o16) (quoting EEOC v. LHC Grp., 773 F.3d 668, 697-98 (5th Cir.

63 R. Doc. 70-1 at 7, ¶ 17 (Plaintiff’s Statement of Contested Material Facts

Presenting a Genuine Issue).

2014)). Thus, “a written job description is not given dispositive weight in the

face of contrary evidence.” Id. Here, Galliano’s master job description is the

only evidence provided by either party on the essential functions of

Sutherland’s job.64

Among the numerous responsibilities and functions contained in the

job description, a master is responsible for “[t]he safety of life on board” and

the “safe and efficient running of the vessel.”65 A master performs several

safety-related “marine functions,” “emergency response functions,” and

“supervisory functions.”66 The job description also mentions “physical

demands” and the frequency with which a master must perform various

tasks.67 A master is “[r]equired to have sufficient cardio-respiratory fitness

to perform medium-heavy physical labor involving the ability to sit and/or

stand for extended time frames, walk for prolonged periods, handle various

64 R. Doc. 60-3 at 19-23 (Master Job Description) (provided by

defendant); R. Doc. 70-4 at 69-73 (Master Job Description) (provided by

plaintiff).

65 R. Doc. 70-4 at 69-70 (Master Job Description).

66 Id. at 70-72. For instance, among other marine functions of the

master’s job, a master must “[p]erform any duty that may be required as part

[of] training” and must work a “rotation watch involving 12 hours in a 24

hours period with occasional hours not to exceed 14 consecutive hours.” Id.

at 70. One of the master’s emergency response functions is “controlling and

operating firefighting equipment.” Id. at 70-71.

67 Id. at 72-73.

tools, climb ladders, and climb stairwells.”68 The description indicates that

a master’s general physical activities includes walking “constantly,” meaning

between 67% and 100% of work time.69 Moreover, “the ability to perform a

job without risk to one’s health or safety” is an essential function on its own.

See Echazabal, 536 U.S. at 77-78 (reversing the Ninth Circuit’s holding that

the ability to perform a job without risking one’s own health and safety is not

an essential function).

Plaintiff argues that Dr. Duet did not evaluate him under the relevant

essential functions. First, plaintiff argues that Dr. Duet erred by applying the

U.S. Coast Guard medical guidelines when compliance with those standards

was “not an essential job function.”70 These guidelines include the Merchant

Mariner Medical Manual (the “Manual”) and Guidelines on the Medical

Examinations of Seafarers (the “Guidelines”). The Guidelines describe

“seafarer medical fitness examinations,” which are designed to ensure a

seafarer is “medically fit to perform his or her routine and emergency duties

at sea,” and that the seafarer does not suffer from a “medical condition” that

is “likely to be aggravated by service at sea, to render him or her unfit for

68 Id. at 72.

69 Id.

70 R. Doc. 70 at 21.

service, or to endanger the health of other persons on board.”71 The Manual

specifically states that “the conditions of coronary artery disease . . . may be

deemed too high risk for medical certification.”72 It also provides that

“mariner applicants who do not have the exercise/functional capacity and/or

physical ability necessary to perform routine and/or emergency duties may

be found unqualified.”73

Neither defendants nor Dr. Duet ever contended that these guidelines

set out essential functions of the master job. Dr. Duet used the standards as

an objective way to measure Sutherland’s ability to perform the essential

functions required of a master. The Court finds plaintiff’s argument, that Dr.

Duet incorrectly took the guidelines for the essential functions themselves,

unpersuasive.

Second, plaintiff argues that Dr. Duet improperly relied on the “general

job description provided to him,” rather than asking Sutherland about his

day-to-day essential duties.74 Plaintiff failed to provide any evidence that

Sutherland’s job duties as a master were any different from those stated in

the job description. Absent such evidence, the only evidence before the Court

71 R. Doc. 70-4 at 36 (Guidelines).

72 R. Doc. 70-4 at 27 (Manual).

73 Id. at 32.

74 R. Doc. 70 at 24.

of Sutherland’s essential duties is his job description. Dr. Duet acted

appropriately by using the job description as his basis for evaluating plaintiff.

Furthermore, the evidence shows Dr. Duet took these essential

functions into account when he evaluated Sutherland. Dr. Duet explained

that it is his practice to review the physical demands listed in an employee’s

job description when he evaluates an employee for fitness for duty.75 He

specifically stated that Sutherland would have had to perform all physical

demands of the master job.76 In its list of physical demands, the job

description requires “sufficient cardio-respiratory fitness to perform

medium-heavy physical labor involving the ability to . . . walk for prolonged

periods . . . .”77 Dr. Duet concluded that, because plaintiff could complete

only four minutes and twenty-two seconds of the stress test, Sutherland had

“insufficient exercise capacity to safely work in a medium-heavy to heavy

duty job, especially given that, as a Master Captain, Mr. Sutherland would be

working in remote areas to which emergency medical personnel would be

able to timely respond.”78 Further, it is an uncontested fact that, in making

the decision to maintain Sutherland’s restriction on March 9, 2018, “Dr. Duet

75 R. Doc. 70-3 at 70 (Duet Deposition at 63:2-4).

76 Id. at 71 (Duet Deposition at 64:9-12).

77 R. Doc. 70-4 at 72 (Master Job Description).

78 R. Doc. 70-4 at 67, ¶ 7 (Declaration of Dr. Darren Duet).

was not satisfied with Sutherland’s ability to safely perform the essential

duties of his job . . . .”79 Therefore, there is no genuine dispute that Dr. Duet’s

assessment took into account the essential functions of the master’s job.

Next, there is no dispute that Dr. Duet’s evaluation of Sutherland was

“individualized.” The jurisprudence on individualized assessments cautions

employers against relying on “perceptions of a disability based on myth, fear

or stereotype” and requires them to evaluate employees in their “actual

state.” Rodriguez v. ConAgra Grocery Prod., 436 F.3d 468, 481 (5th Cir.

2006) (internal quotation marks and alterations omitted). One of the

primary goals of the ADA is “to prohibit employers from making adverse

employment decisions based on stereotypes and generalizations associated

with the individual’s disability rather than on the individual’s actual

characteristics.” Id. at 481-82 (quoting Gillen v. Fallon Ambulance Serv.,

283 F.3d 11, 29 (1st Cir 2002)).

Dr. Duet’s assessment was based on Sutherland’s actual state. The

initial medical review, prompted by the disclosure that Sutherland took

clonidine, a sedating blood pressure medication, revealed diagnoses of

“abnormal EKG” and “irregular rhythm,”80 which, along with high blood

79 R. Doc. 70-1 at 6, ¶ 14 (Plaintiff’s Statement of Contested Material

Facts Presenting a Genuine Issue).

80 R. Doc. 70-4 at 91 (Pending Medical Records Form).

pressure, are risk factors for coronary artery disease.81 Based on these

concerns, Dr. Duet restricted Sutherland from maritime service and

conditioned his return on the completion of the specific stress test identified

in the Manual. Plaintiff argues that the Manual sets standards, including a

stress test, for evaluating mariners with a “previous” diagnosis of coronary

artery disease, and he had not received such a diagnosis.82 But plaintiff has

not contested that “a treadmill stress test, or its equivalent, is how physicians

determine whether a patient has obstructive coronary artery disease.”83

Plaintiff has failed to present evidence showing that Dr. Duet’s initial

concerns were unjustified or that he failed to take into account plaintiff’s

actual risk factors for coronary artery disease.

Sutherland could not complete the stress test, lasting only four minutes

and twenty-two seconds of the prescribed 7.5 minutes.84 Dr. Duet stated that

the failure to complete the stress test was significant not only because he

could not rule out that Sutherland had coronary artery disease. As noted

earlier, Dr. Duet also found that Sutherland’s ability to exercise for only four

81 R. Doc. 70-3 at 57 (Duet Deposition at 28:13-18); R. Doc. 60-3 at 49

(Duet Deposition at 34:17-20).

82 R. Doc. 70 at 21-22.

83 R. Doc. 70-1 at 4, ¶ 9 (Plaintiff’s Statement of Contested Material

Facts Presenting a Genuine Issue).

84 R. Doc. 70-1 at 5, ¶ 12 (Plaintiff’s Statement of Contested Material

Facts Presenting a Genuine Issue).

minutes and twenty-two seconds “is insufficient exercise capacity” to safely

work in the medium-heavy to heavy duty master’s job, which required

Sutherland to work “in remote areas” where emergency medical personnel

could not “timely respond.”85 Sufficient exercise capacity is an express

requirement of the master’s job description.86 The employment decisions

here were not based on stereotypes, but on Dr. Duet’s individualized medical

assessment of plaintiff’s actual risks and capabilities.

ii. Reasonableness

Dr. Duet’s assessment provided defendants with a reasonable basis to

conclude that Sutherland posed a direct threat to himself or others. Again, a

direct threat determination “must be based on a reasonable medical

judgment that relies on the most current medical knowledge and/or the best

available objective evidence.” Nall, 917 F.3d at 342 (quoting Echazabal, 536

U.S. at 86) (internal quotation marks omitted). But, the employer’s

conclusion does not have to be correct to satisfy the objective reasonableness

standard. Id. at 346 n.8 (“[A] correct conclusion is not required to satisfy the

objective reasonableness standard.”). “[T]he question is not whether the

85 R. Doc. 60-4 at 4. Plaintiff does not contest that Dr. Duet reached these

conclusions.”

86 R. Doc. 70-4 at 69-73 (listing various physical demands, physical

activities, and other functions that require physical fitness).

employer was correct about the risk the employee posed, but instead

concerns whether the employer’s decision was objectively reasonable based

upon the information before it.” Goode v. BNSF Ry., Inc., No. 18-319, 2020

WL 1527864, at *6 (N.D. Tex. Mar. 20, 2020) (citing Nall, 917 F.3d at 346

n.8).

The defendants made the initial determination to restrict Sutherland

from maritime service on January 10, 2018, because of Dr. Duet’s

assessment. During that first evaluation, Dr. Duet was presented with an

individual who had been prescribed a sedating medication to control his high

blood pressure. He considered objective evidence that plaintiff presented

risk factors for coronary artery disease besides elevated blood pressure,

including an “abnormal EKG” and “irregular rhythm.”87 Based on this

evidence, Dr. Duet concluded that Sutherland could not safely perform his

duties as master captain without further evaluation via a standard stress test.

Sutherland argues that Dr. Duet acted unreasonably by requiring a

stress test because he had not been diagnosed with coronary artery disease,

and the Manual discusses a stress test in the context of mariners who had

87 R. Doc. 70-4 at 91 (Pending Medical Records Form); R. Doc. 70-3 at

57 (Duet Deposition at 28:13-18); R. Doc. 60-3 at 49 (Duet Deposition at

34:17-20).

actually received such a diagnosis.88 But plaintiff failed to rebut Dr. Duet’s

determination that Sutherland’s risk factors presented a risk for for coronary

artery disease, and it is uncontested that “[a] treadmill stress test, or its

equivalent, is how physicians determine whether a patient has obstructive

coronary artery disease.”89 Plaintiff’s argument does not undermine the

reasonableness of Dr. Duet’s decision to restrict Sutherland from maritime

duty pending completion of the stress test.

Sutherland also failed to create an issue of fact as to whether

defendants lacked an objectively reasonable medical basis to continue to

restrict him from the master’s job once he failed to complete the stress test.

He completed only four minutes and twenty-two seconds of the test, reached

80% of his expected heart rate, and achieved 7 METS. This was another piece

of objective evidence which, beyond failing to alleviate concerns over

whether Sutherland had obstructive coronary artery disease, stood out to Dr.

Duet as demonstrating “insufficient exercise capacity” to perform the

essential physical functions of the master job.90 Here, plaintiff urges that Dr.

Eilen’s assessment of Sutherland’s condition and release to work renders Dr.

88 R. Doc. 70 at 22.

89 R. Doc. 70-1 at 4, ¶ 9 (Plaintiff’s Statement of Contested Material

Facts Presenting a Genuine Issue).

90 R. Doc. 70-4 at 67.

Duet’s evaluation on March 9 unreasonable. But the Court notes that Dr.

Eilen lacked awareness of most of the duties required in Sutherland’s job.91

Additionally, Dr. Eilen’s testimony, which plaintiff relies on to argue that Dr.

Duet’s evaluation of the non-diagnostic stress test was unreasonable,

suggests only that defendants would need another stress test to rule out

coronary artery disease.92 This is precisely what Dr. Duet asked Sutherland

to undergo, and he even “advised Mr. Sutherland ways in which he could

better his stress test results.”93 There is no evidence Sutherland sought

another test. Plaintiff did not present evidence showing that Dr. Duet’s

conclusion that Sutherland posed a direct threat to himself or others in the

master’s job was objectively unreasonable. See Michael v. City of Troy Police

Dep't, 808 F.3d 304, 309 (6th Cir. 2015) (“Reasonable doctors of course can

disagree—as they disagree here—as to whether a particular employee can

safely perform the functions of his job. That is why the law requires only that

the employee rely on an ‘objectively reasonable’ opinion, rather than an

opinion that is correct.”). Once defendants properly made a direct threat

determination, they were entitled to take adverse employment action,

91 R. Doc. 70-4 at 4 (Eilen Deposition at 11:4-6).

92 R. Doc. 70-1 at 7-8, ¶ 15 (Plaintiff’s Statement of Contested Material

Facts Presenting a Genuine Issue) (citing Eilen Deposition at 42:9-44:18)

93 R. Doc. 70-4 at 67, ¶ 8 (Declaration of Dr. Darren Duet).

including termination, against Sutherland. See Hickman v. Exxon Mobil,

540 F. App’x 277 (5th Cir. 2013) (Mem.) (unpublished) (affirming summary

judgment where employer terminated employee based on a direct threat

determination that the employee was unqualified for her job); Gonzales, 176

F.3d at 838 (finding that an employee is not qualified for his job when a

doctor “perform[s] an individualized assessment of [the employee’s] medical

condition and, based on that assessment, conclude[s] that his [condition]

prevents” the employee from performing the essential functions of the job.”).

Accordingly, defendants are entitled to summary judgment on their direct

threat defense to plaintiff’s ADA claim.

2. Legitimate, Nondiscriminatory Reason

In the alternative, the Court finds that even if the absence of a diagnosis

of coronary artery disease created an issue of fact as to the applicability of

the direct threat defense, defendants’ documented concerns over plaintiff’s

ability to perform his job safely are a legitimate, nondiscriminatory reason

for the allegedly adverse employment action. See Nall, 917 F.3d at 348

(differentiating between safety concerns, which may be a legitimate,

nondiscriminatory reason, and concerns about a physical impairment, which

is not a legitimate, nondiscriminatory reason); Ericson v. Magic Steel Corp.,

No. 93-809, 1994 WL 775442, at *3 (W.D. Mich. Nov. 3, 1994) (granting

summary judgment where defendant “proffered non-pretextual, legitimate,

non-discriminatory reasons for its challenged employment conduct”

including that “he could not perform [his] duties because he could not be on

his feet for more than four hours during an eight-hour shift”).

3. Pretext

Because defendants showed a legitimate, nondiscriminatory reason for

restricting Sutherland from the master’s position, plaintiff must “produce

evidence from which a jury could conclude that [defendants’] articulated

reason is pretextual.” Nall, 917 F.3d at 342. To show pretext, plaintiff must

offer sufficient evidence to show that either “(1) the defendant[s’] reason is

not true,” or “(2) that the defendant[s’] reason, while true, is only one of the

reasons for its conduct, and another motivating factor is the plaintiff’s

protected characteristic.” EEOC. v. LHC Group, Inc., 773 F.3d 688, 702 (5th

Cir. 2014) (quoting Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th

Cir. 2004)). The gravamen of plaintiff’s ADA claim is that he was demoted

and removed from the position of master.94 Defendants proffered reason, as

set forth above, was that they were unable to conclude that plaintiff could

safely perform the essential functions of the master’s position. Plaintiff fails

to show that defendants’ reason was pretextual.

94 R. Doc. 1 at 3-5, 7, ¶¶ 13-20, 30, 35.

To show pretext, plaintiff “must put forward evidence rebutting each

of the nondiscriminatory reasons the employer articulates.” Wallace v.

Methodist Hosp. Sys., 271 F.3d 212 (5th Cir. 2001) (Title VII case); see Kent

v. Roman Catholic Church of Archdiocese of New Orleans, No. 96-1505,

1997 WL 30201, at *3 (E.D. La. Jan. 23, 1997) (granting summary judgment

where “plaintiff has submitted no evidence that defendant’s reasons were

pretexts for discrimination”). Plaintiff states, without support, that he can

“prove pretext by showing that [d]efendants’ concerns were tied to

Sutherland’s physical impairments.”95 Plaintiff is apparently relying on Nall,

where the Fifth Circuit found that an employer’s expressed reason for

terminating the employee, safety concerns, “were not tied to [the employee’s]

ability to perform the tasks required of his job” and were instead “tied to his

physical impairment.” 917 F.3d at 348. But plaintiff’s bare assertion is

contradicted by his admission that “Dr. Duet maintained Sutherland’s

restriction from maritime service and further limited him to ‘light duty,’

given that Dr. Duet was not satisfied with Sutherland’s ability to safely

perform the essential duties of his job.”96 Further, plaintiff does not dispute

that he could complete only half of a 7.5 minute stress test and that he had a

95 R. Doc. 70 at 27.

96 R. Doc. 70-1 at 6, ¶ 14 (Plaintiff’s Statement of Contested Material

Facts Presenting a Genuine Issue).

job that required constant walking and medium to heavy labor. Nor does he

dispute that he presented multiple risk factors for coronary artery disease,

which defendants were unable to rule out because he did not complete a

stress test. Plaintiff provided no evidence that defendants falsely or

incredibly asserted that their actions were based on concerns that plaintiff

could not safely perform the essential functions of his job. Id. at 348.

Defendants’ reason for removing Sutherland as a master was because of Dr.

Duet’s determination and because of the safety risks he presented. There is

no evidence that these reasons were untrue or unworthy of credence.

Plaintiff has not produced evidence that defendants’ actions were motivated

by untested stereotypes.

Plaintiff’s other efforts to show pretext are based on what he claims are

inconsistent statements by the defendant on matters that are unrelated to

the medical evaluation process. For example, he makes an argument that he

was offered a job at Topship in October 2018, showing that “the defendants

were still employing individuals at Topship after September of 2018.”97 But

defendants never argued they were not employing workers at Topship, only

that it was not financially reasonable for them to do so at the day rate

Sutherland was receiving. If anything, these facts support defendants’

97 R. Doc. 70 at 27

argument that they stopped employing Sutherland as a mate for economic

reasons, not discriminatory ones.

Plaintiff also relies on a letter informing him that he could be

terminated once his FMLA benefits are exhausted if he is unable to return to

work.98 The Court fails to see how this raises an inference of pretext.

The Court finds that Plaintiff failed to create an issue of fact that

defendants proffered reason for his removal from the master’s job was

pretextual. For this alternative reason, defendants are entitled to summary

judgment on plaintiff’s ADA claim.

C. Age Discrimination in Employment Act

Like the disability discrimination claim outlined above, the Fifth

Circuit also employs the burden-shifting framework outlined in McDonnell

Douglas for age discrimination claims. 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 by showing “(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

98 Id.

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.

Defendants argue that Sutherland cannot satisfy the second element

because he posed a “direct threat” and therefore was not qualified to serve in

the master position. Additionally, defendants argue that plaintiff failed to

carry its burden on the fourth element, that the adverse employment action

occurred because of his age. The first and third prongs—that Sutherland

faced adverse employment action and was within the protected class—are

not disputed.99

99 See R. Doc. 60-2 at 21.

1. Qualified

As discussed above, defendants appropriately determined that

Sutherland was not qualified for the master position.

In his response to defendants’ motion for summary judgment,

Sutherland makes an argument for the first time that he was qualified for the

light-duty position of mate.100 Plaintiff failed to raise this claim in his EEOC

charges101 and in the complaint102 filed in this Court. The Court may not hear

plaintiff’s discrimination claim unless it is first brought in an EEOC charge.

See Filer v. Donley, 690 F.3d 643, 647 (5th Cir. 2012) (“Ordinarily, an

employee may not base a Title VII claim on an action that was not previously

asserted in a formal charge of discrimination to the EEOC, or that could not

‘reasonably be expected to grow out of the charge of discrimination.’”

(quoting Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006)).

Additionally, “[a] claim which is not raised in the complaint but, rather, is

raised only in response to a motion for summary judgment is not properly

before the court.” Cutrera v. Bd. of Sup'rs of Louisiana State Univ., 429 F.3d

100 R. Doc. 70 at 28

101 R. Doc. 70-5 at 14 (EEOC Charge Against Edison Chouest); R. Doc.

70-5 at 13 (EEOC Charge Against FMS); R. Doc. 70-3 at 50 (EEOC Charge

Against Galliano).

102 R. Doc. 1 at 3-5, 7, ¶¶ 13-20, 30, 35.

108, 113 (5th Cir. 2005). This claim is not properly before the Court, and the

Court will not entertain it.

2. Because of Age

To establish the fourth element—that he was discharged because of his

age—Sutherland points the Court to two “remarks.”103 First, Dr. Duet

allegedly called Sutherland a “ticking time bomb.”104 Second, a statement

provided by Metlife to Sutherland states “old age.”105 Both statements fail to

establish the fourth element of the age discrimination claim.

Remarks may be the basis for age discrimination claims either as

“direct evidence of discrimination” or as “circumstantial” evidence.

Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d 470, 475 (5th Cir. 2015).

When a plaintiff seeks to use comments to “prove the entire case of

discrimination” the Fifth Circuit employs the CSC Logic test. Id. (citing

Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996)). Under this test,

comments may constitute direct evidence of age discrimination if they are

“1) related [to the protected class of persons of which the plaintiff is a

member]; 2) proximate in time to the [complained-of adverse employment

decision]; 3) made by an individual with authority over the employment

103 R. Doc. 70 at 29-31.

104 R. Doc. 70 at 30; R. Doc. 70-3 at 82 (Dr. Duet Deposition at 118:5-18).

105 R. Doc. 70 at 30; R. Doc. 70-5 at 53 (Metlife Explanation of Benefits).

decision at issue; and 4) related to the employment decision at issue.” Ray

v. United Parcel Serv., 587 F. App’x 182 (5th Cir. 2014) (quoting Rubinstein

v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000)). In a

circumstantial case, where “discriminatory remarks are just one ingredient

in the overall evidentiary mix” the Court applies a “more flexible” two-part

standard. Goudeau, 793 F.3d at 475 (quoting Reed v. Neopost USA, Inc., 701

F.3d 434, 441 (5th Cir. 2012)). A plaintiff must show “(1) discriminatory

animus (2) on the part of a person that is either primarily responsible for the

challenged employment action or by a person with influence or leverage over

the relevant decisionmaker.”

Even with the more flexible circumstantial evidence test, plaintiff has

not satisfied his burden of proof. On its face, the “ticking time bomb”

statement does not relate to age. Further, the evidence in the record reflects

that Dr. Duet was referring to plaintiff’s heart.106 Because plaintiff failed to

point to any evidence showing that Dr. Duet was referring to Sutherland’s

age, plaintiff failed to show discriminatory animus.

Even more obviously, the “old age” statement on the Metlife form fails

as a basis for an age discrimination claim. The form is an “explanation of

106 R. Doc 70-3 at 82 (Duet Deposition at 118:5-18).

benefits” for plaintiff’s short-term disability plan.107 The section for tax

deductions lists several line-items, including “FICA – Old Age” and “FICA –

Medicare.” Plaintiff points to the reference to “Old Age” and asks the Court

to draw an inference that “[d]efendants provided information to Metlife, and

Metlife used that information to reference Sutherland’s age.”108

FICA refers to taxes under the Federal Insurance Contributions Act,

which applies to (1) social security and (2) Medicaid. As plaintiff himself

explains, “[t]he Social Security portion [of FICA] refers to Old-Age,

Survivors, and Disability Insurance (OASDI).”109 Defendants point out that

the likely reason that the form contains the “Old Age” statement is because it

is referring to OASDI.110 Even absent this obvious explanation, plaintiff

points to no evidence showing discriminatory animus behind the statement

or that Metlife had influence over employment decisions at defendants’

companies.

Because plaintiff has failed to establish a prima facie claim of age

discrimination, the Court grants defendants’ motion for summary judgment

on the ADEA claim.

107 R. Doc. 70-5 at 53 (Metlife Explanation of Benefits).

108 R. Doc. 70 at 30.

109 Id. (emphasis added).

110 R. Doc. 74 at 12.

D. Louisiana Employment Discrimination Law

Defendant also moves for summary judgment on plaintiff’s LEDL

claims. 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).

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 McDonnell 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

does not survive summary judgment. For the same reasons, defendants are

entitled to summary judgment on plaintiff’s LEDL claim for age

discrimination.

The same result obtains for plaintiff’s claim of disability discrimination

under the LEDL. Louisiana’s disability discrimination protections are based

on the ADA, and the Court’s analyses under the LEDL and the ADA are the

same. 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.”). For the reasons the Court granted summary

judgment on plaintiffs ADA claim, it grants summary judgment against

plaintiff on his LEDL claim for disability discrimination.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS defendants’ motion for

summary judgment, and dismisses plaintiffs claims WITH PREJUDICE. As

the Court has granted defendants’ motion for summary judgment, plaintiffs

motion in limine is DISMISSED WITHOUT PREJUDICE.

New Orleans, Louisiana, this 10th day of September, 2020.

”~ SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

43