The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KATINA B. HEBERT CIVIL ACTION
VERSUS 17-641-SDD-RLB
ASCENSION PARISH
SCHOOL BOARD
RULING
Before the Court is the Plaintiff, Katina Hebert’s, Motion in Limine to Exclude
Testimony and Evidence Regarding the Plaintiff’s Job Performance.1 Defendant, the
Ascension Parish School Board (“APSB”), has filed an Opposition2. The Court has
considered the Motion and Opposition, the evidence submitted, and the applicable law
and, for the reasons which follow, the Motion shall be DENIED.
The Court discussed the facts and the procedural posture in a prior Ruling3 and it
will not be reiterated herein. As it relates to the subject Motion, Plaintiff moves the Court
to prevent the Defendant from offering testimonial or other evidence pertaining to Mrs.
Hebert’s alleged poor performance as a teacher and from making reference to this alleged
poor performance at trial and in papers before this Court; or alternatively, prevent the
Defendant from relying on, introducing, or making any reference to evidence that it has
allegedly failed to produce; or alternatively, ordering the Defendant to fully comply with
Magistrate Judge Bourgeois’ order and permit the Plaintiff’s expert, Michael Deshotels,
1 Rec. Doc. 60.
2 Rec. Doc. 67.
3 Rec. Doc. 114.
to submit a supplemental report upon receipt of the documents that he was hired to
analyze.4
Plaintiff argues that the APSB must be precluded from offering evidence of
Plaintiff’s job performance as a teacher because it failed to produce documents which
would allow Plaintiff to challenge this defense.
“In a discriminatory-termination action under the ADA, the employee may either
present direct evidence that she was discriminated against because of her disability or
alternatively proceed under the burden-shifting analysis first articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII
case.”5 Under McDonnell Douglas, Hebert must first carry the burden of making a prima
facie case of disability discrimination. If Plaintiff makes a prima facie showing of disability
discrimination, then the burden shifts to the employer to demonstrate that it had a
“legitimate, nondiscriminatory reason” for the termination. Then, the burden shifts back to
the plaintiff to demonstrate that the employer’s purported legitimate, nondiscriminatory
reason is pretextual.6 The Plaintiff argues that the Defendant’s failure to fully comply with
the Magistrate Judge’s Discovery Orders will also impair the Plaintiff’s ability to make her
prima facie showing of disability discrimination and impair Plaintiff from demonstrating
pretext. The gravamen of the Plaintiff’s argument is that APSB failed to produce evidence
of the comparative performance of other teachers. Plaintiff argues that, “If there were
other teachers whose students performed the same as, or worse than, Mrs. Hebert’s
students on any of these measures, during Mrs. Hebert’s employment, this would cast
4 Rec. Doc. 60-1.
5 E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014).
6 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
doubt on the Defendant’s purported legitimate, nondiscriminatory reason for her
termination.”7 The Plaintiff further argues that “there were other teachers at Sorrento
Primary, during her employment, who performed at the same level or worse than she did,
but were not terminated. Thus, the performance of other teachers during Mrs. Hebert’s
employment at Sorrento Primary is highly material to her prima facie case.”8
Defendant APSB responds that the subject Motion in Limine “is a thinly veiled
attempt to file an untimely discovery motion or to give Hebert’s purported education expert
another opportunity to render a revised report.” 9
Plaintiff’s motion to preclude APSB form “offering testimonial or other evidence
pertaining to Mrs. Hebert’s alleged poor performance as a teacher, and from making
reference to this alleged poor performance at trial” is DENIED. However, APSB will not
be permitted to offer evidence of comparative teacher performance. The Court will not
permit APSB to present evidence or argue the alleged deficiencies in Ms. Hebert’s job
performance as related to the performance of other teachers. Under McDonnell Douglas10
if Hebert carries her prima facie burden of showing disability discrimination, then the
burden shifts to APSB to demonstrate that it had a “legitimate, nondiscriminatory reason”
for the termination. Plaintiff’s job performance is relevant to this inquiry and APSB
produced documentation regarding same in discovery. The Plaintiff’s principal complaint
is that the APSB failed to produce records regarding the Plaintiff’s comparative
performance relative to other teachers. The Plaintiff argues that “the performance of other
teachers bears directly on the Defendant’s purported legitimate, nondiscriminatory
7 Rec. Doc. 60-1, p. 9.
8 Id. at 17.
9 Rec. Doc. 67, p. 4.
10 411 U.S. 792, 802 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
reason.”11 The APSB counters that Hebert was terminated “based upon her individual
performance ratings and scores.”12 Plaintiff argues that “if the evidence shows that other
teachers performed at the same level as Mrs. Hebert or worse . . . then it would support
the Plaintiff’s argument that APSB’s purported reason was pretextual.”13
As a matter of state law, “[A] final performance rating of "ineffective" pursuant to
the performance evaluation program as provided in R.S. 17:3881 through 3905… shall
constitute sufficient grounds for disciplinary action….”. Hence, it is not necessary that
Hebert’s performance be compared to any other teachers. The Court will not permit APSB
to present evidence or argue the alleged deficiencies in Mrs. Hebert’s job performance
as related to the performance of other teachers.
While Hebert’s job performance relative to other teachers may be probative on the
pretext issue,14 the Plaintiff failed to challenge the Defendant’s supplemental responses
to discovery.15 Plaintiff asks the Court to order APSB “to fully comply with Magistrate
Judge Bourgeois’ order, and permit[] the Plaintiff’s expert, Michael Deshotels, to submit
a supplemental report upon receipt of the documents that he was hired to analyze.”16 The
Court has previously excluded opinion testimony by Mr. Deshotels. Furthermore, the
Court declines to fashion a discovery sanction through the mechanism of the Plaintiff’s
Motion in Limine.
11 Rec. Doc. 60-1, p. 17.
12 Rec. Doc. 67, p. 6.
13 Rec. Doc. 60-1, p. 18.
14 Plaintiff argues that “[i]f there were other teachers whose students performed the same as, or worse than,
Mrs. Hebert’s students on [student performance] measures, during Mrs. Hebert’s employment, this would
cast doubt on the Defendant’s purported legitimate, nondiscriminatory reason for her termination.” Id.
15 On December 3 and 5, 2018, APSB supplemented discovery responses following the Magistrate Judge’s
ruling on Plaintiff’s Motion to Compel.
16 Rec. Doc. 60-1, p. 2.
For the reasons stated, the relief prayed for in the Plaintiff’s Motion in Limine to
Exclude Testimony and Evidence Regarding the Plaintiff’s Job Performance (Rec. Doc.
60) is DENIED. However, APSB shall not be permitted to offer evidence or make
argument that compares Hebert’s job performance to other teachers.
Signed in Baton Rouge, Louisiana on July 8, 2019.
S
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA