Russell v. Parkview Baptist School, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BEVERLY RUSSELL

CIVIL ACTION

VERSUS

NO. 19-760-JWD-EWD

PARKVIEW BAPTIST SCHOOL, INC.

RULING AND ORDER

This matter comes before the Court on Defendant’s Motion for Summary Judgment (Doc.

9) filed by Parkview Baptist School, Inc. (“Defendant” or “PBS”). Plaintiff Beverly Russell

(“Plaintiff” or “Russell) opposes the motion. (Doc. 11.) Defendant has filed a reply. (Doc. 14.)

Plaintiff filed a surreply. (Doc. 17.) Oral argument is not necessary. The Court has carefully

considered the law, the facts in the record, and the arguments and submissions of the parties and

is prepared to rule. For the following reasons, Defendant’s motion is granted.

I. Introduction

Russell was first hired by PBS in August 2012 as an assistant volleyball coach.

(McCaughey Aff. ¶ 6, Doc. 9-4; see also Russell Decl., Doc. 11-2 at 1; Russell Dep. 58, Doc. 11-

11 at 6.)1 In August 2013, Plaintiff was hired in a full-time position as a PE teacher and assistant

volleyball coach. (McCaughey Aff. ¶ 6, Doc. 9-4; see also Russell Decl., Doc. 11-2 at 1–2; Russell

Dep. 58–60, Doc. 11-11 at 8.)

On April 9, 2019, Russell tendered her resignation to PBS. (Def.’s Statement of

Uncontested Material Facts in Support of MSJ (“DSUMF”) ¶ 1, Doc. 9-2; Pl.’s Response to

1 Both parties object to the affidavits and declarations submitted by the other for failure to comply with Federal Rule

of Civil Procedure 56(c). As will be discussed below, the Court will not strike any of these documents in toto.

[DSUMF] (“PRSUMF”) ¶ 1, Doc. 11-1)2 Plaintiff claims that she did so “under circumstances

constituting a constructive discharge, i.e., a reasonable person in her position would have felt

compelled to resign due to the imposition by PBS of objectively intolerable working conditions,

and Ms. Russell felt so compelled.” (PRSUMF ¶ 1, Doc. 11-1.) Russell’s complaints largely center

on her treatment at the hands of Christina Anderson, an African-American woman who was named

Principal of PBS in August of 2017. (See Russell Decl., Doc. 11-2; McCaughey Aff. ¶ 7, Doc. 9-

4.) The details of Plaintiff’s complaints about Anderson will be discussed below.

Plaintiff is a white woman over the age of 60. (Russell Decl., Doc. 11-2 at 1.) She brings

claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seq. (“Title VII”); discrimination and retaliation under the Age

Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621–634 (the “ADEA”); and

interference and retaliation under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et

seq. (the “FMLA”). (Compl., Doc. 1.)

In the instant motion, Defendant seeks dismissal of all claims. With respect to the Title

VII and ADEA discrimination claims, the Court agrees with Plaintiff that Defendant focuses

almost exclusively on the question of whether Plaintiff proved a prima facie case and that

Defendant argues the other issues in only a vague or perfunctory way. Consequently, Defendant

has waived those issues. With respect to the other claims—the retaliation claims under Title VII

and the ADEA, and those under the FMLA—the Court agrees with Defendant that Plaintiff has

failed to properly oppose the motion and that these claims must be dismissed. Thus, the central

issue before the Court is whether Plaintiff brought forward sufficient evidence to make a prima

facie showing of discrimination.

2 As a general matter, when both the DSUMF and PRSUMF is cited in support of a fact, the parties agree to that fact.

Having carefully considered the matter, the Court finds that Plaintiff has not done so.

Though a prima facie burden is minimal, Plaintiff still had to meet the high standard of proving a

constructive discharge, which requires something more than a hostile work environment claim.

She has not. Even accepting her admissible evidence as true and construing reasonable inferences

in her favor, no reasonable jury would conclude that Plaintiff was constructively discharged from

PBS. Consequently, Defendant’s motion will be granted, and all of Plaintiff’s claims will be

dismissed.

II. Relevant Factual Background

A. Preliminary Evidentiary Issues

As noted above, both parties attack all affidavits or declarations submitted by the other on

a variety of grounds. First, Plaintiff urges that Defendant’s affidavits should be struck in full

because each one says, “All statements made in this Affidavit are based on my personal knowledge

and are true and accurate to the best of my information and belief.” (Doc. 11 at 1 (citing Doc. 9-4,

9-8, 9-9, 9-11, 9-12, and 9-13).) Plaintiff asserts that the “on my information and belief” language

fails the personal knowledge requirement of Federal Rule of Civil Procedure 56(c). (Id.) Plaintiff

then contends that, “[b]esides the wholesale shortcomings discussed above, the majority of the

individual affidavits are objectional on the basis of being too vague and conclusory and because

some contain hearsay and double hearsay information, opinion, characterizations, and outright

speculation.” (Doc. 11 at 3.) On the whole, Plaintiff spends over seven pages highlighting alleged

deficiencies in Defendant’s affidavits.

Defendant replies by going affidavit by affidavit to explain why the objected-to

information is in fact admissible. (Doc. 14 at 2–4.) Defendant then devotes four pages to making

objections to Plaintiff’s declaration, arguing that it contains inadmissible hearsay and multiple

statements that are subjective opinions or legal conclusions; that are not based on personal

knowledge; that contradict deposition testimony; and that contradict Plaintiff’s own opposition or

the evidence. (Doc. 14 at 4–8.)

Though the Court has reviewed all of the evidence, the Court will not detail a ruling on

every evidentiary objection the parties made, as doing so would not be a wise use of judicial

resources. Rather, the Court will provide an overview of the principles it employed in deciding

what evidence to consider and then rule on Plaintiff’s general objection to all of Defendant’s

affidavits. The Court will then address specific objections where relevant in the facts and analysis

section below, providing the explanation appropriate under the circumstances.

As to general principles, under Rule 56, “[a]n affidavit or declaration used to support or

oppose a motion must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.

R. Civ. P. 56(c)(4). Thus, one requirement of Rule 56(c) is “that the information they contain (as

opposed to the affidavits themselves) would be admissible at trial.” 10B Mary Kay Kane, Federal

Practice & Procedure (Wright & Miller) § 2738 (4th ed. 2020). “Because the policy of Rule

56(c)(4) is that the judge should consider any material that would be admissible at trial, the rules

of evidence and their exceptions determine what allegations the affidavit may contain.” Id.

“Questions regarding admissibility at trial are [generally] determined in the federal courts by the

Federal Rules of Evidence[.]” Id.

“[I]t is [also] true that Rule 56 requires that summary judgment affidavits be based on

personal knowledge[.]” DIRECTV, Inc. v. Budden, 420 F.3d 521, 529 (5th Cir. 2005) (citing Fed.

R. Civ. P. 56(e)). For example, “ultimate or conclusory facts and conclusions of law, as well as

statements made on belief or ‘on information and belief,’ cannot be utilized on a summary-

judgment motion.” Wright & Miller, supra, § 2738; see also Richardson v. Oldham, 12 F.3d 1373,

1378–79 (5th Cir. 1994) (finding no abuse of discretion in district court striking portions of

affidavit that were based on information and belief because they were “not based on personal

knowledge and therefore fail[ed] the requirements of Fed. R. Civ. P. 56(e)”); Bolen v. Dengel, 340

F.3d 300, 313 (5th Cir. 2003) (striking affidavit as inappropriate summary judgment evidence

because the affidavit “specifically noted that ‘on information and belief, and to the best of affiant’s

recollection’ ” and thus was “not based on personal knowledge”).

“Nonetheless, while an affidavit certainly can explicitly state that it is based on ‘personal

knowledge,’ ” DIRECTV, 420 F.3d at 529–30, and while “an affidavit cannot affirmatively state

that it is only based on ‘information and belief,’ ” id. at 530 n. 40 (emphasis added) (citing Bolen,

340 F.3d at 313), there is no requirement for a set of magic words,” id. at 530. “As to competency,

for example, [the Fifth Circuit has] held that in the summary judgment context, even when a party's

response is a verified pleading that ‘does not affirmatively state in the document itself that the

[persons] are competent to testify as to the facts to which they swore,’ it ‘does not necessarily

doom their testimony.’ ” Id. at 530 (quoting Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc.,

831 F.2d 77, 80 (5th Cir. 1987)). The Fifth Circuit has also quoted with approval a Ninth Circuit

opinion which “found it proper in the summary judgment context for district courts to rely on

affidavits where the affiants’ ‘personal knowledge and competence to testify are reasonably

inferred from their positions and the nature of their participation in the matters to which they

swore.’ ” Id. (quoting Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990)).

Thus, in DIRECTV, the Fifth Circuit declined to strike an affidavit for lack of personal knowledge

because it was within the affiant’s position—or his “sphere of responsibility”—to be familiar with

the investigation discussed in the affidavit, so his knowledge could be “reasonably inferred.” Id.

(quoting Hodges v. Exxon Corp., 563 F. Supp. 667, 669–70 (M.D. La. 1983)).

The Sixth Circuit also took such a moderate approach with respect to affidavits based in

part on knowledge and in part on belief in Ondo v. City of Cleveland, 795 F.3d 597 (6th Cir. 2015).

There, the district court granted defendants’ motion to strike plaintiffs’ affidavits. Id. at 604.

Plaintiffs had sworn that their statements were based on “personal knowledge and belief.” Id. In

affirming the lower court, the Sixth Circuit explained:

We hold that when affidavits based on knowledge and belief are

submitted to support or oppose a motion for summary judgment, the

district court has discretion to determine whether it can differentiate

between knowledge and belief for each averment in the affidavit. If

the court can distinguish between the two, then . . . the court should

excuse the affiant's stylistic error, and must admit the parts based

solely upon personal knowledge, while striking the parts based upon

belief. If the court cannot differentiate between the two, then

consistent with the rationale in Wright & Miller, the court must

strike the affidavit in its entirety[.]

Id. at 605; see also Wright & Miller, supra, § 2738 (“Where the affidavit includes both competent

and incompetent evidence, the Court should disregard the incompetent evidence but give full

consideration to that which is competent. . . . This is nothing more than the procedure which would

be followed at trial. The Court would not strike the entire testimony of a witness merely because

a portion of his testimony is incompetent. The same rule is to be applied to supporting affidavits.”

(quoting Dickheiser v. Penn. R.R. Co., 5 F.R.D. 5 (E.D. Pa. 1945), aff'd 155 F.2d 266 (3d Cir.

1946)).

This Court will take the same approach detailed in Ondo, DIRECTV, and Wright & Miller.

The Court declines to strike each of Defendant’s affidavits solely because they state they are made

based on personal knowledge and are true and accurate to the best of the affiant’s information and

belief. Doing so would be tantamount to requiring the “magic words” which the Fifth Circuit

rejected in DIRECTV. Rather, the Court will attempt to determine from context, including the

witnesses’ “sphere of responsibility,” whether the witness is competent to testify about the matters

asserted.

For example, Gina McCaughey attested that she is the Director of Human Resources at

BPS and has been employed there for thirteen years. (McCaughey Aff. ¶ 3, Doc. 9-4.) McCaughey

further stated that, as Director of Human Resources, she is familiar with Russell (who was an

employee of PBS) and had access to custodian records. (Id. ¶ 4–5.) As reflected above, she

testified about when Plaintiff was hired and in what positions. (Id. ¶ 6.) Surely all of this

information is within her “sphere of responsibility,” and the Court can reasonably infer that she is

competent to testify as to these matters from her position.

Ultimately, this is a minor issue; since the motion turns on whether Plaintiff met her prima

facie burden on the constructive discharge claim, the relevant evidence that is material to the

Court’s decision comes from Plaintiff’s own declaration and deposition and the evidence she

submitted.

B. Facts Related to Constructive Discharge Claim

1. Summary

Plaintiff testified that, at the time she resigned on April 9, 2019, she had not been demoted,

had not received any type of salary reduction, had not had her job responsibilities reduced, had not

been assigned menial or degrading work, and had not been assigned to work under a younger

supervisor. (Russell Dep. 78–79, Doc. 9-5 at 9–10.)

Rather, Russell said she believed she was badgered, harassed, or humiliated by Anderson

in such a way as to encourage her resignation. (Id. 79, Doc. 9-5 at 10.) In sum, Plaintiff claims

that Anderson did so in the following ways: (1) Plaintiff received more evaluations than other

teachers and received anonymous student evaluations; (2) male students were assigned to her class;

(3) Plaintiff was accused of bullying a student; (4) Anderson escalated a situation involving

sensitive teaching materials which students posted on social media; (5) Plaintiff was constantly

emailed about her lesson plans being in the incorrect format; and (6) she was shorted $677.03 in

one of her pay checks. (See id., Doc. 9-5 at 4–24.) The Court will examine each of these claims

in turn.

2. Evaluations

Plaintiff first complains about the number of evaluations that she received at PBS and the

fact that she received anonymous student evaluations. Specifically, Plaintiff declares that she

received six evaluations in the 2017–18 year, including “two formal observations, on consecutive

days, September 25th and 26th, 2017, an informal observation in November 2017, a formal

observation dated March 14, 2018 (with lower scores than the previous evaluations), an end of

year evaluation dated April 20, 2018, plus in late May 2018 Anderson gave me anonymous student

evaluations.” (Russell Decl., Doc. 11-2 at 2.) Plaintiff claims all of this was not in accordance

with the policy in the handbook, as (1) teachers with her experience only need to be evaluated once

every other year, and (2) the handbook does not include anything about anonymous student

evaluations. (Id.; see also Anderson Dep. 36–37, Doc. 11-6 at 8–9 (admitting that anonymous

evaluations were not in the handbook but noting it was “continued from the previous

administration.”).)

Similarly, Plaintiff testifies at her deposition that Becky Madden, the head volleyball

coach, saw what Anderson did to Plaintiff that was discriminatory. (Russell Dep. 118, Doc. 11-11

at 10; Madden Dep. 5, Doc. 11-10 at 5.) What Madden saw included the “formal evaluations,

how many student evaluations [she] got[.]” (Russell Dep. 118, Doc. 11-11 at 10.)

The evaluations themselves are also in evidence, and they warrant discussion. In her

formal observation on September 25, 2017, by A. McCallister, Plaintiff was given rating with

almost all 4 out of 4s (“Highly Effective”), with only one 3 out of 4 (“Effective: Proficient”).

(Evaluations, Doc. 11-7 at 9–15.) For her September 26, 2017, formal evaluation by Anderson,

Plaintiff was given a rating of 3 out of 4 (“Effective: Proficient”) in almost all categories except

one involving adapting instructional opportunities to diverse learners, in which she received a 2

out of 4 (“Effective: Emerging”). (Evaluations, Doc. 11-8 at 1–6.) Her November 2017 evaluation

had seven “Highly Effectives” and three “Effective: Proficients” (id. at 7–10), and her March 2018

evaluation by Anderson had two “Highly Effectives,” six “Effective: Proficients,” and two

“Effective: Emergings” (id. at 11–13).

Perhaps most importantly, her 2017–2018 end of the year evaluation gave her an overall

performance of 3 out of 4 (“Effective: Proficient”). (Evaluations, Doc. 11-8 at 17.) This evaluation

provides at the end a box checked that “Teacher has a satisfactory evaluation” rather than the one

which said, “Needs Improvement: Teacher will be placed on improvement plan for the 2018-2019

School Year.” (Id.)

Similarly, Plaintiff’s April 1, 2019 evaluation includes six “Highly Effectives” and six

“Effective: Proficient.” (Evaluations, Doc. 11-9 at 1–6.) This evaluation came a little over a week

before her resignation. (See Russell’s Resignation Letter, Doc. 11-9 at 9; see also Russell Dep.

187, Doc. 9-5 at 24.)

Finally, Plaintiff admitted that, as a result of the evaluations she received, her pay was

never docked, she was never refused a raise, and she never received a pay cut that she was aware

of. (Russell Dep. 187, Doc. 9-5 at 24.) She did say she was threatened with not being hired, and

she based that off Anderson’s April 9, 2019 letter calling Plaintiff insubordinate and

recommending that Plaintiff not be renewed, with grounds for termination. (Id.; see also Anderson

Letter, Doc. 11-9 at 11–12.) Plaintiff said, “This is eight days after she gives me the best

observation, formal, with the best scores in two years.” (Russell Dep. 187, Doc. 9-5 at 24.) But

Plaintiff also testified at her deposition that, at the time she resigned, a new contract was imminent

in being offered to her for the following year and that, had she not resigned, she would have been

offered a new contract for the following year. (Russell Dep. 76, Doc. 14-1 at 4.)

3. Male Students

Plaintiff also stated that she was assigned two male students in her first period all-girls PE

class and that she complained that she was unable to supervise them in the locker room. (Russell

Decl., Doc. 11-2 at 2.) Plaintiff referenced conversations with Jermaine Williams and Reggie

Watts, who are other PBS employees who were supposed to watch the male students but allegedly

did not, but such conversations are hearsay.3 (See id. at 2–3.) However, Plaintiff attested that she

complained to Anderson about this assignment. (Id. at 3.) Later, PBS assigned her 17 senior male

football players in her First Period girls’ PE class, and Plaintiff said she had to complain repeatedly

to correct the situation. (Id.)

Plaintiff similarly testified in her deposition about receiving emails from Anderson “on the

class rolls” and about Anderson not “telling the truth to [Plaintiff]” about Watts and Williams

supervising the male students assigned to her. (Russell Dep. 118–19, Doc. 11-11 at 10–11.)

Plaintiff asked how she could be with 11 girls in the girls’ locker room and also supervise the boys

in their locker room. (Id. 119, Doc. 11-11 at 11.) According to Plaintiff, Watts did not arrive “until

he wants” and Coach Williams was essentially busy coaching and could not supervise her students.

(Id. 120, Doc. 11-11 at 12.)

3 As will be clear below, Williams and Watts are also Plaintiff’s alleged comparators.

Plaintiff testified, “In my opinion, I’m being set up. I’ve got boys in my first hour. I’ve

got 11 girls. That’s never been done before.” (Id.) Plaintiff then stated that Anderson emailed her

back to say that “we do that in Granger’s boot camp,” but Plaintiff then said “that’s where the job

description got skewed. And besides, I can’t go in the male locker room.” (Id.)

When asked if anything negative happened to her as a result of the assignment of boys to

her class, she said, “Well, A, the rolls. And Judy Turner, rest her soul – she’s passed. She could

have testified. The rolls were completely wrong, the class rolls. And this is where I knew

something was going on.” (Id.) Plaintiff later said she was being “set up” for something “illegal,”

such as a boy accusing her of “eyeing” him. (Russell Dep. 122, Doc. 9-5 at 13.) But, she also

testified that (1) nothing like that happened because she did not go in the boys’ locker room, and

(2) she was never punished or disciplined for not handling the situation correctly. (Id.)

4. Bullying the Student

Plaintiff next attested that Anderson summoned Plaintiff to her office and accused her of

bullying a student. (Russell Decl., Doc. 11-2 at 3.) Plaintiff said that the student spoke well of

Plaintiff and wrote a letter on her behalf, but statements to this effect in Plaintiff’s declaration are

hearsay.

5. The Sensitive Material Incident

In her declaration, Plaintiff asserts:

In January 2019, two volleyball students found some sensitive

materials on my desk (pamphlets for health class, which I had

determined would not be used), and posted them on social media. I

became aware of this incident quicky and shared it with Madden,

the high school Dean of Students in accordance with the PBS chart

of responsibilities that Anderson gave out at a faculty meeting.

Madden and I promptly investigated and found out which students

were responsible, talked with the students about it, and the students

removed the materials and apologized to me in person and on social

media. Anderson unnecessarily escalated this situation and harassed

me about it.

(Russell Decl., Doc. 11-2 at 3–4.)

Russell’s deposition adds little to the account given in her declaration on this issue. (See

Russell Dep. 127, 131, Doc. 11-11 at 13–14.) She acknowledged that the pamphlets were not

approved lesson plans. (Russell Dep. 130, Doc. 9-5 at 16.) But Plaintiff also provides few

additional details as to how Anderson “escalated it”:

I feel that she let it escalate. Why, Murphy? Why didn’t she come

talk to me Monday morning in person? And she waits till Friday.

And I had asked for a third party to sit in. . . . But, anyway, she let’s

[sic] it escalate and – you know. . . . I guess my credibility, my

integrity, my self – who I’m about – and I ask her, “Why didn’t you

come talk to me in person?” on several occasions. That’s why I have

so many email responses from her.

(Russell Dep. 133–34, Doc. 9-5 at 18–19.) Finally, Plaintiff admits that she was not disciplined

over this incident. (Id.)

6. Incorrect Lesson Plans

In her declaration, Plaintiff stated that she was “disciplined because [she] allegedly

submitted incorrect lesson plans.” (Russell Decl., Doc. 11-2 at 4.) Plaintiff said that she

“constantly received emails from [Becky Polk (PBS’s Curriculum and Instruction Coordinator)]

stating, ‘Your lesson plans are not in, boys four PE,’ and [Russell] kept sending back, ‘I have no

students in that class.’” (Id.; Polks Aff. ¶ 3, Doc. 9-13.) ) Plaintiff also declared that, “As chairman

of high school PE, I have access to all PE teachers’ lesson plans; Jermaine Williams’ lesson plans

were incomplete and in incorrect format for the entire year.” (Russell Decl., Doc. 11-2 at 4; see

also Russell Dep. 151, Doc. 11-11 at 17.)

Plaintiff said that Williams and Watts were “not harassed about lesson plans and class

rolls,” (Russell Decl., Doc. 11-2 at 1), but Plaintiff fails to provide a foundation for knowing that

Williams and Watts did not receive such “harassment.” Indeed, in her deposition, Plaintiff admits

that she did not know whether Williams or any other faculty members received emails from

Anderson telling them that their lesson plans were incorrect. (Russell Dep. 168, Doc. 11-11 at 21.)

Plaintiff was also asked how she was disciplined in her deposition, and she replied:

The rolls were incorrect from August – I’m still getting “Your lesson

plans are not in, boys four PE.” I keep sending back, “I have no

students in that class.” I’ve given Becky Polk all the – I rectified the

situation because I kept getting Saturday-night forms from

[Anderson]. . . . To me, that’s discipline against my character and

my integrity.

(Russell Dep. 168–69, Doc. 11-11 at 21–22.) However, Plaintiff admitted that she was never

suspended, received a pay cut, or threatened with termination for the lesson plans. (Id. 169, Doc.

11-11 at 22.)

7. The Paycheck Shorting

Plaintiff testified, “[i]n mid-February 2019, PBS shorted [her] paycheck by $677.03.”

(Russell Decl., Doc. 11-2 at 4.) Plaintiff said the “mistake” happened because of a “payroll

discrepancy dating back to the previous school year, and was apparently caused by Anderson

shuffling the time-keeping responsibilities.” (Id.) According to Plaintiff, Superintendent Mayes

sent an email on February 22, 2019 saying he would “speak with Anderson regarding the issues

involving time management, making sure Jamie Bozeman is consistent and accurate with

accounting, who will then inform Stacy Palumbo.” (Id.) Palumbo was the sub coordinator who

gets the notification if an employee is going to be out so she can arrange a sub. (Anderson Dep.

70, Doc. 11-6 at 14.) Anderson testified that she followed up with Bozeman “just to make sure

she was getting things in the book and then they always pull these statements and compare those

when they have to submit time.” (Id.) Plaintiff counted the shorted paycheck as another instance

of harassment. (Russell Decl., Doc. 11-2 at 4.)

But, Plaintiff testified at her deposition that she complained of the discrepancy on February

21, 2019, and the discrepancy was resolved on February 22, 2019, the next day, though “after 17

hours of [her] figuring it out.” (Russell Dep. 157, Doc. 9-5 at 22.) Parkview agreed with Plaintiff

and reimbursed the $677. (Id.)

8. Other Purported Evidence

In part summarizing the above allegations, Plaintiff declared:

[PBS] treated my comparators, Williams and Watts, younger black

male employees, more favorably than it treated me. Williams and

Watts were observed/evaluated less frequently, not required to sign

in or out when away from campus, allowed to teach board games

and water pong in PE, allowed to let their students use cell phones

and dress out inappropriately in class, not required to have teaching

certificates or to obtain professional development credits, not

harassed about lesson plans and class rolls, not harassed by having

inappropriate gender students assigned to their classes repeatedly,

not confronted with anonymous student evaluations, not given

paychecks that were for less than the correct amount, were told of

upcoming evaluations in advance, were not harassed about

accusations of bullying students, and Anderson did not recommend

termination or non-renewal of their contracts, as she did me.

(Russell Decl., Doc. 11-2 at 1.)

Additionally, Madden testified that she told the Superintendent “basically that [Plaintiff]

felt that she was being targeted and, . . . harassed and she didn’t understand why those things were

going on.” (Madden Dep. 14–15 Doc. 11-10 at 7–8.) Madden also said that she worked very closely

with Plaintiff for the past seven years, and she could just tell that Plaintiff was losing her patience

and she couldn’t continue in that environment. (Id. 20–21, Doc. 11-10 at 10–11.)

Plaintiff also points to Gina McCaughey’s testimony. McCaughey stated that, during the

2017–18 school year, nine faculty left. (McCaughey Dep. 27–28, Doc. 11-13 at 6–7.) During the

2018–19 school year, fourteen left. (Id.) But no details are provided as to the circumstances of

these departures, except that two teacher positions were removed because of budget cuts. (Id. 28,

Doc. 11-13 at 7.)

C. Plaintiff’s Resignation

In January and February 2019, Superintendent Don Mayes (Anderson’s supervisor) and

Plaintiff exchanged emails about Anderson’s alleged harassment and Plaintiff’s desire to work

under a different supervisor. (Russell Decl., Doc. 11-2 at 4; see also Anderson Dep. 7, Doc. 11-6

at 5; Russell Dep. 135, Doc. 11-11 at 15.) Russell declared that “[a]ttempts were made to have a

meeting among Mayes, Anderson, and [Plaintiff], . . . no such meeting ever occurred,” (Russell

Decl., Doc. 11-2 at 4), but Plaintiff also acknowledged saying in an email, “Let Don know that I’ll

send him a text . . . after practice to tell him that I do not see any positives to come out of this

meeting. I do not line up with Christina’s leadership style, as I’ve told him in person, after two

‘Credibility and Integrity Accusations,’ ” (Russell Dep. 138, Doc. 11-11 at 16.)

Mayes testified that Anderson, Plaintiff, and he never met. (Mayes Dep. 26, Doc. 11-12 at

15.) Mayes also stated that, from February through April in 2019, he was away from campus for

mission trips, speaking engagements, or working remotely. (Id. 36, Doc. 11-12 at 17.)

On April 9, 2019, Plaintiff sent to Anderson her letter of resignation, effective at the end

of the day on April 10, 2019. (Russell’s Resignation Letter, Doc. 11-9 at 9.) Plaintiff stated that

she had hoped that she could be re-assigned to a different division with a new supervisor, but she

learned from McCaughey during the previous week that this was not an option. (Id.) Plaintiff said

that she agreed to Maye and McCaughey’s offer to be paid in full for the remaining of her 2018-

2019 employment contract, that she be allowed to do her PBS summer camps, and that she have

the opportunity to remain Madden’s CECP volleyball coach for the 2019-2020 season. (Id.)

Plaintiff testified by declaration:

On April 9, 2019, Anderson penned a letter to McCaughey, with a

copy to Mayes, claiming that I was “insubordinate” and not a

Christian role model in my speech, actions, and attitude. Anderson

claimed that my responses, actions, and comments had led her to

believe that part of the issue could be with Anderson being African-

American, and she felt that my behavior was discriminatory against

her, and that I was creating a hostile work environment in the

highschool [sic]. Anderson stated that my behaviors and actions

would support non-renewal of my contract and would be grounds

for termination.

(Russell Decl., Doc. 11-2 at 5.) Anderson’s letter is in evidence. (Anderson Letter, Doc. 11-9 at

11–12.) Mayes recalled seeing the letter; he did not believe he had a discussion with Anderson

about it, but he said he could not be sure. (Mayes Dep. 44, Doc. 11-12 at 20.)

Plaintiff was paid through the end of July. (DSUMF ¶ 1, Doc. 9-2; PRSUMF ¶ 1, Doc. 11-

1.) This was the full amount for the remainder of her 2018-2019 employment contract. (DSUMF

¶ 1; PRSUMF ¶ 1.)

Mayes said that, as of May 26, 2020 (the date of his deposition), Plaintiff was “not banned

from [PBS’s] campus, [they] intended to have her on [its] campus.” (Mayes Dep. 40, Doc. 11-12

at 19.) However, defense counsel said by email on November 7, 2019, that she was not allowed

on Parkview grounds or campus until further notice. (Doc. 11-4; Doc. 11-5.)

III. Summary Judgement Standard

“The court shall grant summary judgment if 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). If the mover bears his burden of showing that there is no genuine issue of fact, “its

opponent must do more than simply show that there is some metaphysical doubt as to the material

facts. . . . [T]he nonmoving party must come forward with ‘specific facts showing that there is a

genuine issue for trial.’ ” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586–87 (1986) (emphasis omitted) (internal citations omitted) (quoting Fed. R. Civ. P. 56(a)). The

non-mover's burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or

by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(citations and internal quotations omitted). “Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ”

Matsushita Elec. Indus. Co., 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288–89 (1968)). Further:

In resolving the motion, the court may not undertake to evaluate the credibility of

the witnesses, weigh the evidence, or resolve factual disputes; so long as the

evidence in the record is such that a reasonable jury drawing all inferences in favor

of the nonmoving party could arrive at a verdict in that party’s favor, the court must

deny the motion.

Int’l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

IV. Discussion

A. Title VII and ADEA Discrimination Claims

1. Title VII and ADEA Discrimination Claims Generally

“The ADEA prohibits age-based employment discrimination against persons, like

[Plaintiff], who are at least forty years old.” Wright v. United Parcel Serv., Inc. (Ohio), No. 20-

30249, 2021 WL 235632, at *1 (5th Cir. Jan. 22, 2021) (citing 29 U.S.C. §§ 623, 631). “Title VII

prohibits employment discrimination based on a person’s ‘race, color, religion, sex, or national

origin.’ ” Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). “Under both statutes, plaintiffs may prove their

case either through direct or circumstantial evidence.” Id. (citing Desert Palace, Inc. v. Costa, 539

U.S. 90, 99–100 (2003) (Title VII); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121

(1985) (ADEA); see also Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010)

(“In employment discrimination cases, a plaintiff may rely on direct or circumstantial evidence, or

both.”).

“When a plaintiff relies on circumstantial evidence, [the Court] assess[es] her claim under

the McDonnell Douglas burden-shifting framework.” Wright, 2021 WL 235632, at *1 (citing

Roberson-King v. La. Workforce Comm'n, Off. of Workforce Dev., 904 F.3d 377, 380 (5th Cir.

2018) (Title VII); Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (ADEA)).

“Under that framework, the plaintiff must first make out a prima facie case of discrimination.” Id.

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “If she does, the employer

must then proffer a legitimate, non-discriminatory reason for the adverse employment action.” Id.

(citing McDonnell Douglas, 411 U.S. at 802). “If one is presented, the burden shifts back to the

employee, who may then rebut the proffered reason by showing it was pretextual.” Id. (citing

McDonnell Douglas, 411 U.S. at 804).

The final stage of the McDonnell Douglas framework differs for Title VII and the ADEA.

Under Title VII, Plaintiff “must . . . ‘offer sufficient evidence to create a genuine issue of material

fact either (1) that [Defendant’s] reason is not true, but is instead a pretext for discrimination

(pretext alternative); or (2) that [Defendant’s] reason, while true, is only one of the reasons for its

conduct, and another “motivating factor” is [Plaintiff’s] protected characteristic (mixed-motives

alternative).’ ” Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011) (quoting Rachid v.

Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)). Conversely, “[t]o prevail for

discriminatory discharge under the ADEA, plaintiff must prove ‘that age was the “but-for” cause

of the challenged employer decision[.]’ ” Williams v. Waste Mgmt., Inc., 818 F. App'x 315, 318–

19 (5th Cir. 2020) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009)).

“Although the prima facie case, combined with sufficient evidence to find that the employer's

asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully

discriminated, the issue at the pretext stage is whether [the employer's] reason, even if incorrect,

was the real reason for [plaintiff's] termination.” Id. at 319 (cleaned up, citations omitted).

“Restated, once the employer satisfies its burden, the presumption of discrimination ‘simply drops

out of the picture,’ and plaintiff must ‘pro[ve] that the defendant intentionally discriminated

against [her] because of [her]’ age.” Id. (cleaned up) (quoting St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 511 (1993)).

Again, the Court finds that the motion turns on the prima facie requirement, which is the

same for present purposes under Title VII and the ADEA. See Wright, 2021 WL 235632, at *1–2.

“A plaintiff makes a prima facie case of discrimination by showing she ‘(1) is a member of a

protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some

adverse employment action by the employer; and (4) was replaced by someone outside her

protected group or was treated less favorably than other similarly situated employees outside the

protected group.” Id. at *1 (quoting Morris v. Town of Independence, 827 F.3d 396, 400 (5th Cir.

2016)). “To establish a prima facie case, a plaintiff need only make a very minimal showing.”

Jackson v. Fla. Pars. Juvenile Justice Comm'n, No. CV 16-14864, 2018 WL 3869495, at *6 (E.D.

La. Aug. 15, 2018). Nevertheless, courts have still granted summary judgment on the question of

constructive discharge despite recognizing this minimal burden. See, e.g., id.; Morrow v. Kroger

Ltd. P'ship I, No. 13-276, 2015 WL 1383960, at *5 (N.D. Miss. Mar. 25, 2015).

2. Adverse Employment Action

a. Parties’ Arguments

i. Defendant’s Original Memorandum (Doc. 9-1)

Defendant asserts that Plaintiff was not constructively discharged. (Doc. 9-1 at 9.) She was

not demoted, received no reduction in pay, did not experience a decrease in job responsibilities,

was not assigned menial or degrading work, was not reassigned to a younger supervisor, and was

not offered early retirement. (Id.) Plaintiff can only claim that she experienced badgering,

harassment, and humiliation, but none of Ms. Anderson’s conduct rises to this level. (Id. at 9–10.)

First, with respect to evaluations, Plaintiff was consistently rated “Effective” to “Highly

Effective” and received an overall rating of “Effective.” (Id. at 10.) In any event, negative work

reviews and even disciplinary actions are insufficient to support a constructive termination claim.

(Id.) Further, she was evaluated in accordance with school policy, and she was never disciplined,

threatened, denied a pay increase, or slighted with respect to pay. (Id. at 10–11.)

Second, Plaintiff brought inappropriate sexual education material to school that was

discovered by a student and posted on social media. (Id. at 11.) But Plaintiff was not disciplined

about this incident and suffered no adverse consequence. (Id. at 12.)

Third, Plaintiff complains that, on two occasions, she was assigned male students. (Id.)

However, (1) she was never disciplined or punished in connection with this, and (2) in one

instance, the male students were reassigned to another class. (Id. at 12–13.)

And fourth, Plaintiff received emails that her lesson plans were in the incorrect format. (Id.

at 13.) But, she “was not suspended, threatened with termination, or otherwise disciplined in any

way for incorrect lesson plans” (Id.)

ii. Plaintiff’s Opposition (Doc. 11)

In response, Plaintiff argues that Defendant “admits that after the first year of Anderson’s

leadership, nine of its extant teachers left the school, and after the second year, another fourteen

left.” (Doc. 11 at 20.) Further, “[a]fter the first two years of Anderson’s leadership, 23 of the 42

teachers that started out in the fall of 2017 at PBS when Anderson became division head were gone

from PBS—more than half.” (Id.) Plaintiff states that she tried to work through the harassment,

discussed the matter with Human Resources and the Superintendent, and asked to be transferred

to another supervisor, but she was ultimately forced to resign. (Id. at 20–21.)

Plaintiff next urges that Defendant misrepresents the law. Plaintiff need not prove that the

employer’s conduct was designed to encourage her resignation. (Id. at 21.) That is, Plaintiff need

not have the specific intent to force the employee to resign, though the Plaintiff did so with

Anderson’s letter recommending that Plaintiff’s contract be terminated or not renewed.

According to Plaintiff, Defendant “states that [she] cannot establish ‘adverse employment

action[s],’ but it devotes three and a half pages of its memorandum (pp. 10-13) to attempting

unconvincingly to explain why what appears to be a clear pattern of harassment really is not one.”

(Doc. 11 at 22.) Plaintiff continues: “Circumstantial evidence that facially neutral incidents were

part of a pattern of discrimination on the basis of membership in a protected class may consist of

evidence that ‘the same individual’ engaged in ‘multiple acts of harassment, some overtly sexual

[or otherwise discriminatory] and some not.’ ”(Id.)

iii. Defendant’s Reply (Doc. 14)

In reply, Defendant emphasizes the Fifth Circuit cases which have found constructive

discharge versus those that have not. Such a claim has been found “where the employee was

placed on a different shift accompanied by a loss in compensation and benefits and where the

employee was demoted and had fewer job responsibilities.” (Doc. 14 at 9 (citations omitted).)

Conversely, the Fifth Circuit has found no constructive discharge “where the employee was

embarrassed after being singled out and admonished at an awards banquet or where the employee

suffered a poor performance evaluation and loss of responsibilities similar to a demotion.” (Id.

(citations omitted).) Defendant particularly relies on Woods v. Sheldon Independent School

District, 232 F. App’x 388 (5th Cir. 2007), where the Fifth Circuit allegedly upheld the lower

court’s finding of no constructive discharge.

Defendant urges that Plaintiff relies only on subjective belief. (Doc. 14 at 10.) She points

to no evidence that she was disciplined, and she was evaluated only four times, in accordance with

school policy. (Id.) She suffered no discipline or any other adverse consequences from the four

issues highlighted above. (Id.)

Russell maintains that other teachers left the school and that this proves intolerable

conditions, but Plaintiff “does not present any evidence at all as to why these teachers are no longer

employed at PBS, only that they are no longer employed at PBS.” (Doc. 14 at 10.) Indeed, one

witness testified that two teachers were terminated for budget cuts. (Id.)

Lastly, concerning the April 9, 2019 letter from Anderson to McCaughey, Anderson

testified that she wrote this letter after being notified of Plaintiff’s resignation. (Id. at 11.) Further,

Plaintiff stated that, even after the letter, Plaintiff was “offered to hold her summer camps at PBS

and was offered a position to remain as assistant volleyball coach.” (Id.)

iv. Plaintiff’s Surreply (Doc. 17)

Plaintiff begins by disputing the number of evaluations. Plaintiff says she was evaluated

six total times in the 2017-18 school year—four times throughout the year; once on April 20, 2018

(which Defendant counts as an “End-of-the-Year Evaluation”); and once with the anonymous

student evaluations. (Doc. 17 at 2.) “The point of the number of evaluations is to demonstrate that

PBS scrutinized and evaluated Ms. Russell’s performance more often than it did that of Williams

and Watts, the younger, black, male comparators.” (Id. at 2.)

As to the day the letter was sent, (1) Anderson says only that she did not know whether she

mailed the letter before or after, and (2) in any event, “[i]t is clear from a reading of Anderson’s

letter that she had been gathering information and formulating reasons to support her proposed

course of action to get rid of Ms. Russell for more than just a few minutes” (Id. at 3.) “The

sentiment is there, and it is clear to any readers of the letter and was clear to Ms. Russell even

before Anderson wrote her letter that she was unwelcome and not wanted at PBS. This case

presents a classic, textbook case of constructive discharge.” (Id.)

As to anonymous teaching evaluations, McCaughey testified that there is nothing in the

handbook providing for such evaluations. (Doc. 17 at 4.) Further, Plaintiff testified that she never

saw Mr. Williams’ evaluations, which supports the conclusion that he did not do one. (Id.)

Additionally, Woods is distinguishable. In that case, the Fifth Circuit expressly stated that

the plaintiff had 23 years of experience in public schools and would thus know he could not be

unilaterally terminated. Conversely, here, Plaintiff worked in a private school without that level

of job security; indeed, the principal wrote a letter to Human Resources and the superintendent

advising that Plaintiff’s job not be renewed. (Id.) Plaintiff instead relies on two Second Circuit

cases, Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003), and Chertkova v. Conn. Gen. Life Ins. Co.,

92 F.3d 81, 90 (2d Cir. 1996). (Id. at 5.)

Plaintiff concludes:

Numerous genuine disputes of material fact exist which require that

this case go to the jury, not the least of which are PBS’ motivations

for its actions and whether a reasonable person would have felt

compelled to resign under the circumstances presented– facts which

are inappropriate for resolution on summary judgment.

(Doc. 17 at 5.)

b. Applicable Law

“To establish a discrimination claim under Title VII or [the ADEA], a plaintiff must prove

that he or she was subject to an ‘adverse employment action’—a judicially-coined term referring

to an employment decision that affects the terms and conditions of employment.” Thompson v.

City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (citations omitted). The Fifth Circuit has “held

that adverse employment actions consist of ‘ultimate employment decisions’ such as hiring, firing,

demoting, promoting, granting leave, and compensating.” Id. (citations omitted). “[A]n

employment action that ‘does not affect job duties, compensation, or benefits’ is not an adverse

employment action.” Id. (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004)).

A resignation is actionable under Title VII or the ADEA as an adverse employment action

if the resignation qualifies as a constructive discharge. See Brown v. Kinney Shoe Corp., 237 F.3d

556, 566 (5th Cir. 2001) (Title VII); Woods v. Sheldon Indep. Sch. Dist., 232 F. App'x 385, 388

(5th Cir. 2007) (ADEA). “In determining whether an employer's actions constitute a constructive

discharge we ask whether working conditions [became] so intolerable that a reasonable person in

the employee's position would have felt compelled to resign. ” Perret v. Nationwide Mut. Ins. Co.,

770 F.3d 336, 338 (5th Cir. 2014) (cleaned up) (quoting Aryain v. Wal-Mart Stores Tex. LP, 534

F.3d 473, 480 (5th Cir. 2008)). “In the constructive discharge inquiry, the court examines the

working environment as a whole, and, to find for the plaintiff, must conclude that the resignation

was reasonable under all the circumstances.” Robinson v. Waste Mgmt. of Tex., 122 F. App'x 756,

758 (5th Cir. 2004). “This holistic review of the workplace takes into account only the specific

conditions imposed by the employer; the subjective state of mind of the employee is irrelevant.”

Id. The Fifth Circuit has “previously identified several factors relevant to constructive discharge,

including:

(1) demotion; (2) reduction in salary; (3) reduction in job

responsibilities; (4) reassignment to menial or degrading work; (5)

badgering, harassment, or humiliation by the employer calculated to

encourage the employee's resignation; or (6) offers of early

retirement that would make the employee worse off whether the

offer were accepted or not.

Perret, 770 F.3d at 339 (quoting Aryain, 534 F.3d at 481); see also Brown, 237 F.3d at 566 (citing

as additional factor “reassignment to work under a younger supervisor”). “Discrimination alone,

without aggravating factors, is insufficient for a claim of constructive discharge, as is a

discriminatory failure to promote.” Brown, 237 F.3d at 566.

A constructive discharge plaintiff need not show that an employer specifically intended to

force resignation, see Green v. Brennan, 136 S. Ct. 1769, 1779 (2016), but “a constructive

discharge claim requires ‘a greater severity or pervasiveness of harassment than the minimum

required to prove a hostile work environment,’ ” Benningfield v. City of Houston, 157 F.3d 369,

378 (5th Cir. 1998). “To establish a claim of hostile work environment under Title VII, a plaintiff

must prove he”

(1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3)

the harassment complained of was based on race [or sex]; (4) the harassment

complained of affected a term, condition, or privilege of employment; (5) the

employer knew or should have known of the harassment in question and failed to

take prompt remedial action.

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting Ramsey v.

Henderson. 286 F.3d 264, 268 (5th Cir. 2002)). “Harassment affects a ‘term, condition, or

privilege of employment’ if it is ‘sufficiently severe or pervasive to alter the conditions of the

victim's employment and create an abusive working environment.’ ” Id. (quoting Ramsey, 286

F.3d at 268). “Workplace conduct ‘is not measured in isolation,’ ” and, in order to deem a work

environment sufficiently hostile, “all of the circumstances must be taken into consideration[,]”

including “the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee's work performance.” Id. (quoting Ramsey, 286 F.3d at 268). “[H]ostile work

environment cases have traditionally set a high bar for the amount and type of proof necessary to

proceed on the claim.” Dortch v. Mem'l Herman Healthcare Sys.-Sw., 525 F. Supp. 2d 849, 874

(S.D. Tex. 2007) (quoting Ballard v. Healthsouth Corp. 147 F. Supp. 2d 529, 537 n.5 (N.D. Tex.

2001)). Thus, for constructive discharge claims, “[t]he environment must be ‘something more’

than that present in a harassment or hostile work environment claim; a plaintiff must show a ‘worse

case’ harassment scenario, harassment ratcheted up to the breaking point.” Easterling v. Sch. Bd.

of Concordia Par., 196 F. App'x 251, 253 (5th Cir. 2006) (quoting Pa. State Police v. Suders, 542

U.S. 129, 147–48 (2004)).

c. Analysis

Preliminarily, Plaintiff admitted that, at the time she tendered her resignation on April 9,

2019, she had not been demoted, had not received any type of salary reduction, had not had her

job responsibilities reduced, had not been assigned menial or degrading work, and had not been

assigned to work under a younger supervisor. (Russell Dep. 78–79, Doc. 9-5 at 9–10.) Thus, to

prevail, Plaintiff must demonstrate the final factor for a constructive discharge claim—that she

suffered “badgering, harassment, or humiliation” by PBS such that the “working conditions

[became] so intolerable that a reasonable person in the employee's position would have felt

compelled to resign.” See Perret, 770 F.3d at 338.

Having carefully considered the matter, the Court finds that no reasonable juror could

conclude that the six matters about which Plaintiff complain—individually or in combination—

satisfy the high burden of a constructive discharge claim. The Court will examine each of these

issues in turn.

As to the evaluations, Plaintiff complains that her reviews from Anderson were lower than

her other reviews. (Russell Dep. 86, Doc. 9-5 at 12.) But, as detailed above, a reasonable juror

could not find that any of her reviews (including the ones from Anderson) were negative. (See

Evaluations, Doc. 11-7, 11-8, 11-9.)

Moreover, even if a reasonable juror could conclude that the reviews were negative and

that Plaintiff experienced more evaluations than was customary, Plaintiff admitted that, as a result

of her evaluations, her pay was never docked, she was never refused a raise, and she never received

a pay cut that she was aware of. (Russell Dep. 187, Doc. 9-5 at 24.) Though Plaintiff testified that,

based on Anderson’s April 9 letter, she was threatened with not being hired, (id.), this contradicts

her own testimony that she knew at the time of her resignation that she would be offered a new

contract for the following year, (Russell Dep. 76, Doc. 14-1 at 4.) Under these circumstances,

Russell’s evaluations cannot qualify as badgering, harassment, or humiliation sufficient for a

constructive discharge. See Junior v. Texaco, Inc., 688 F.2d 377, 379–80 (5th Cir. 1982) (finding

no constructive discharge when plaintiff received negative work review in part because the review

should not have been “taken as a harbinger of his dismissal” and because “[n]o one suggested to

[the employee] that he would be fired”), abrogated on other grounds by Carroll v. Gen. Accident

Ins. Co. of Am., 891 F.2d 1174 (5th Cir. 1990); Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.

1990) (finding no constructive discharge of corporate counsel who resigned after critical

performance evaluation and alleged loss of responsibilities because a reasonable employee would

have either pursued the internal grievance process or filed EEOC complaint while remaining

employed); Woods, 232 F. App’x at 388–89 (finding no constructive discharge despite claims of

“increased scrutiny” of teacher’s “teaching and methods” and despite principal mistakenly

presenting teacher with option of resignation or retirement and termination because principal was

merely carrying out her job responsibilities dutifully and because teacher had alternative to

resignation, such as seeking clarification of his employment status).4

4 Plaintiff’s attempt to distinguish Woods also fails. Plaintiff bases this attempt on the “note” from the Fifth Circuit

that the plaintiff “had to know” as a long-time public-school teacher that he could not be unilaterally fired and that

Plaintiff in the instant case was a private school teacher with no such protection. But this statement, made in dicta, is

not controlling, as “the subjective state of mind of the employee is irrelevant.” Robinson, 122 F. App'x at 758; again,

Lastly, even assuming there is a question of fact as to whether Williams received

anonymous student evaluations (compare Russell Dep. 14, Doc. 9-5 at 5 (stating that Williams was

not confronted with student evaluations because she asked him as department chair to produce

them and he did not), with McCaughey Decl. ¶ 13, Doc. 9-4 (stating that Williams did receive

student evaluations); Williams Aff. ¶ 9, Doc. 9-11 (stating that he received student evaluations for

the 2018-2019 school year, that Plaintiff asked him for his evaluation, and that he did not provide

it); Babin Aff. ¶¶ 3–5, Doc. 9-12 (stating that she is an art teacher at PBS and that she received

student evaluations that contained negative comments); Polk Aff. ¶¶ 3, 10, Doc. 9-13 at 1–2 (stating

that she is a high school biology teacher and that she received anonymous student evaluations as

part of her End-of-the-Year Review)), it is not material because all reasonable jurors would still

find that Plaintiff did not endure harassment sufficient merely because she received anonymous

student evaluations.

The same result is warranted with respect to Plaintiff being assigned male students. As to

the 17 senior male football players, though Plaintiff says she had to “complain repeatedly,” she

acknowledges that the situation was corrected. (Russell Decl., Doc. 11-2 at 3.) Even putting this

aside, the Court finds that Plaintiff was unable to articulate any adverse actions that arose from

this situation. Claims that she was “set up” are speculative and subjective. More importantly,

Plaintiff admitted that she was never punished or disciplined for not handling the situation

the key question is “whether working conditions [became] so intolerable that a reasonable person in the employee's

position would have felt compelled to resign. ” Perret, 770 F.3d at 338 (emphasis added) (cleaned up, citations

omitted). Indeed, Woods had even more severe harassment than the instant case, as, again, in that case, there was

evidence that the principal put the teacher in a position of seeking clarification on his employment status because of a

mistaken remark that he had to either resign, retire, or be terminated, which is not present here. To the contrary, again,

Plaintiff testified that she knew, at the time she resigned, a new contract was imminent in being offered to her for the

following year and that, had she not resigned, she would have been offered a new contract for the following year.

(Russell Dep. 76, Doc. 14-1 at 4.)

correctly. (Russell Dep. 122, Doc. 9-5 at 13.) Ultimately, even considering the minimal burden

for a prima facie case, no reasonable juror could conclude that merely being assigned male students

constituted “badgering, harassment, or humiliation” to such a degree as to satisfy the high bar of

a constructive discharge claim.

The Court reaches the same conclusion about Plaintiff’s alleged bullying of the student.

Plaintiff declares that Anderson summoned Plaintiff to her office and accused her of bullying a

student and that the student spoke well of Plaintiff and wrote a letter on her behalf. (Russell Decl.,

Doc. 11-2 at 3.) But statements about what the student said (in Anderson’s office or in a letter)

are hearsay. Without any further details about this incident, the Court cannot conclude that this

rises to the level of badgering, harassment, or humiliation. See Chapa v. Wells Fargo, N.A., No.11-

834, 2014 WL 670816, at *17 (W.D. Tex. Feb. 20, 2014) (granting motion for summary judgment

on constructive discharge issue despite plaintiff’s claim that she was badgered, harassed and

humiliated by (1) her supervisor’s internal reference form indicating he would not re-hire her; (2)

“an anonymous call to the Ethics Line alleging that Plaintiff called [her manager] a racial slur”;

and (3) “an incident in which a co-worker ‘became concerned’ with Plaintiff's employment status

in response to a comment made by [her manager]”).

The incident with sensitive materials also fails as a matter of law. (Russell Decl., Doc. 11-

2 at 3–4.) Plaintiff declares that “Anderson unnecessarily escalated this situation and harassed me

about it,” but this statement is vague and conclusory. Plaintiff’s deposition is also wholly

inadequate to support such a claim, as she merely makes vague complaints about Anderson not

coming to her sooner or in person. (Russell Dep. 133–34, Doc. 9-5 at 18–19.) Russell also admits

that she was not disciplined over this incident. (Id.) Without more, Plaintiff’s claim fails. See

Robinson, 122 F. App'x at 758 (“[T]he subjective state of mind of the employee is irrelevant.”).

The lesson plan emails also fall short. First, Plaintiff’s declaration that she was “harassed”

and “disciplined” are vague and conclusory. Second, Plaintiff fails to provide any foundation in

her affidavit for saying that Williams and Watts were not “harassed” for such conduct. (See Russell

Decl., Doc. 11-2 at 1.) Worse still, Plaintiff specifically admits in her deposition that she did not

know whether Williams or other faculty members received emails that their lesson plans were

incorrect. (Russell Dep. 168, Doc. 11-11 at 21.) Other evidence confirms that Plaintiff was not

alone in receiving emails about her lesson plan formatting, 5 though the Court need not and does

not consider it. And third, Plaintiff could not articulate how she was disciplined in her deposition

beyond a vague reference to “discipline against [her] character.” (Russell Dep. 168–69, Doc. 11-

11 at 21–22.) To the contrary, she admitted that she was never suspended, received a pay cut, or

threatened with termination for the lesson plans. (Id.) Since there was no “harbinger of dismissal,”

see Junior, 688 F.2d at 380, and since Plaintiff could have filed an EEOC claim in lieu of resigning,

see Boze, 912 F.2d at 805, this claim fails.

The incident involving the “shorted paycheck” also fails to meet the burden of a

constructive discharge claim. By Plaintiff’s own admission, PBS corrected the problem the day

after Plaintiff brought it to their attention and reimbursed her the full amount of disputed money.

(Russell Dep. 156–57, Doc. 9-5 at 21–22.) Thus, all reasonable jurors conclude that this minor,

short-term incident did not satisfy Russell’s burden.

5 Polk testified by affidavit that she was “responsible for making sure the teachers have submitted their lesson plans

and that their lesson plans are in the correct format.” (Polks Aff. ¶ 5, Doc. 9-13.) She said, “If lesson plans are in the

incorrect format, I will email the teacher to correct them. I have emailed many teachers, including [Plaintiff] and

Jermaine Williams, regarding incorrect lesson plans.” (Id. ¶ 6.) Similarly, Williams himself testified that he did

receive e-mails from Polk regarding his lesson plans being in the incorrect format and that he met with her regarding

the format of his lesson plans. (Williams Aff. ¶¶ 11–12, Doc. 9-11.) Defendant also submitted the affidavit of Emily

Babin, a high school art teacher at PBS for sixteen years. (Babin Aff. ¶ 3, Doc. 9-12.) Babin said that Anderson was

her supervisor between 2017-2018, and that, Babin received emails that her lesson plans were in the incorrect format.

(Id. ¶¶ 4, 7.) Personal knowledge can certainly be inferred from all of these statements.

Lastly, Plaintiff’s other evidence of badgering, harassment, and humiliation fail. Plaintiff’s

complaints that she was treated differently than Williams and Watts (Russell Decl., Doc. 11-2 at

1) contain numerous evidentiary issues, such as a lack of foundation for some (e.g., that Williams

and Watts were not required to sign in or out when away from campus and were not “harassed”

about lesson plans and class rolls) and the use of vague and conclusory terms (such as “confronted”

and “harassed). Even assuming all of these matters were true, “[d]iscrimination alone, without

aggravating factors, is insufficient for a claim of constructive discharge, as is a discriminatory

failure to promote.” Brown, 237 F.3d at 566. Thus, the key question is whether the “badgering,

harassment, or humiliation” passed the high bar of constructive discharge, and it did not.

The other evidence is also insufficient. Madden’s testimony of what she told the

Superintendent merely reflected what Plaintiff’s subjective views of the situation were and not

how a reasonable person would view the situation. See Robinson, 122 F. App'x at 758 (“This

holistic review of the workplace takes into account only the specific conditions imposed by the

employer; the subjective state of mind of the employee is irrelevant.”). Ultimately, Madden’s

testimony does not provide details as to why Plaintiff’s decision to quit was objectively reasonable.

Further, Plaintiff points to the 23 faculty departures between 2017 and 2019, but, again, no details

are provided about the circumstances of these departures. (See McCaughey Dep. 27–28, Doc. 11-

13 at 6–7.) Concluding that these departures were a result of harassment by Anderson based on

protected characteristics is speculative, particularly since two departures were due to budget cuts.

(Id. at 28, Doc. 11-13 at 7.)

Thus, each of Plaintiff’s complaints fail to satisfy the burden of a constructive discharge

claim. Moreover, while the Court agrees with Russell that it must examine “the working

environment as a whole” to determine if “the resignation was reasonable under all the

circumstances,” Robinson, 122 F. App'x at 758, the Court finds that all of the factors, taken

together, still fail to rise to the level of a constructive discharge claim.

Caselaw confirms the Court’s conclusion. In addition to the decisions highlighted above,

Lofton v. City of W. Point, No. 10-282, 2012 WL 1135862 (N.D. Miss. Apr. 4, 2012), serves as a

prime example. There, the district court found no constructive discharge when plaintiff claimed

that:

(i) she was reprimanded one time for not wearying pantyhose, (ii)

[the office manager], on a couple of occasions, made comments that

were supposedly directed at the way [plaintiff] dressed, (iii) she was

once asked to cashier and was told to go home when she informed

[the office manager] that she had no cashier drawer, and (iv) [the

office manager][ asked her where she was going during her break

and how long she would be[,] [and (v) the office manager] allegedly

moved [plaintiff[ to a different office on one occasion.

Id. at *17. In rejecting plaintiff’s argument, the district court collected cases on this issue and

stated:

To establish constructive discharge, the plaintiff “must demonstrate a greater

severity or pervasiveness of harassment than the minimum required to prove a

hostile working environment.” Landgraf v. USI Film Products, 968 F.2d 427, 430

(5th Cir. 1992). Lofton has failed to meet such a burden here. Indeed, the Fifth

Circuit has found conduct far more egregious than the conduct complained of in

this matter was insufficient to establish constructive discharge. See, e.g., Stover v.

Hattiesburg Public School Dist., 549 F.3d 985 (5th Cir. 2008) (employee's

assertions that she was not provided the same career development opportunities,

her complaints of discrimination were not investigated, her supervisor exhibited

anger and violence, and that she was excluded from prestigious retreats were not

sufficient to support a claim of constructive discharge); Harvill v. Westward

Communications, L.L.C ., 433 F.3d 428, 440 (5th Cir. 2005) (employee's assertions

that she was treated “rudely and with general hatefulness,” that a man she did not

know began taking pictures of her, that a meritless racial harassment charge was

brought against her, and that a new supervisor was overheard to state that he would

receive a bonus if he ran her off were not sufficient to demonstrate harassment so

intolerable that a reasonable employee would feel compelled to resign); Brown v.

Bunge Corp., 207 F.3d 776, 782–83 (5th Cir. 2000) (affirming summary judgment

to employer on constructive discharge where the resigning employee showed he

was demoted and had fewer job responsibilities); McCann v. Litton Sys., Inc., 986

F.2d 946, 952 (5th Cir. 1993) (finding no constructive discharge when the plaintiff

was given the option—in the midst of a company-wide reduction in force—of either

retiring or transferring to a new and “not well defined” position at a 12% pay cut,

under the supervision of a man half his age); Jurgens v. EEOC, 903 F.2d 386, 393

(5th Cir. 1990) (“However, without continuing harassment or repeated

discriminatory impediment to any advance ..., dimmed future job prospects based

upon the employer's past discrimination in promotions are not alone enough to

support a finding of constructive discharge.”) (citation omitted); Jett v. Dallas

Indep. Sch. Dist., 798 F.2d 748, 752, 755 (5th Cir.1986) (finding no constructive

discharge after the plaintiff was demoted “with much sorrow and humiliation” from

his job as high school football coach and transferred to another school), aff'd in part

and remanded in part on other grounds by 491 U.S. 701, 109 S.Ct. 2702, 105

L.Ed.2d 598 (1989); Vaughan v. Pool Offshore Co., 683 F.2d 922, 926 (5th Cir.

1982) (African–American employee was not constructively discharged on the basis

of pranks, tricks, heavy-handed humor and crude racial language). Accordingly,

Lofton has failed to establish she was constructively discharged and, for this reason,

Defendant's summary judgment motion as to this claim is granted.

Id.

The same reasons apply here. Loften and the Fifth Circuit authority Lofton highlights all

involve situations as bad as or worse than that faced by Plaintiff. Based on these cases, Russell’s

complaints against PBS simply fail as a matter of law.

Again, “a constructive discharge claim requires ‘a greater severity or pervasiveness of

harassment than the minimum required to prove a hostile work environment.’ ” Benningfield, 157

F.3d at 378 (quoting Landgraf, 968 F.2d at 430). “[H]ostile work environment cases have

traditionally set a high bar for the amount and type of proof necessary to proceed on the claim.”

Dortch, 525 F. Supp. 2d at 874 (quoting Ballard, 147 F. Supp. 2d at 537 n.5). And for constructive

discharge claims, “[t]he environment must be ‘something more’ than that present in a harassment

or hostile work environment claim; a plaintiff must show a ‘worse case’ harassment scenario,

harassment ratcheted up to the breaking point.” Easterling, 196 F. App'x at 253 (quoting Suders,

542 U.S. at 147–48). The Court has considered all of the above issues, individually and in

combination, and finds that no reasonable juror could conclude that Plaintiff endured the

badgering, harassment, and humiliation necessary to sustain a constructive discharge claim.

Consequently, Defendant’s motion is granted, and Plaintiff’s claims of discrimination under Title

VII and the ADEA will be dismissed.

B. Retaliation and FMLA Claims

Plaintiff fails to make any substantive argument in her opposition or surreply about the

retaliation and FMLA claims. (See Doc. 11; Doc. 17.) “The Fifth Circuit makes it clear that when

a party does not address an issue in his brief to the district court, that failure constitutes a waiver

on appeal.” JMCB, LLC v. Bd. of Commerce & Indus., 336 F. Supp. 3d 620, 634 (M.D. La. 2018)

(deGravelles, J.) (quoting Magee v. Life Ins. Co. of N. Am., 261 F. Supp. 2d 738, 748 n. 10 (S.D.

Tex. 2003)); see also United States ex rel. Wuestenhoefer v. Jefferson, 105 F. Supp. 3d 641, 672

(N.D. Miss. 2015) (“This failure to develop the relevant argument effectively represents a waiver

of the point.” (citing United States v. Dominguez–Chavez, 300 F. App’x 312, 313 (5th Cir. 2008)

(“Dominguez has failed to adequately raise or develop his due process and equal protection

arguments in his appellate brief, and, thus, they are waived.”); El–Moussa v. Holder, 569 F.3d 250,

257 (6th Cir. 2009) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived. It is not sufficient for a party to mention a

possible argument in [a] skeletal way, leaving the court to put flesh on its bones.”)); United States

v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010) (defendant's failure to offer any “arguments or

explanation . . . is a failure to brief and constitutes waiver.”).

“By analogy, failure to brief an argument in the district court waives that argument in that

court.” JMCB, 336 F. Supp. 3d at 634 (quoting Magee, 261 F. Supp. 2d at 748 n.10); Kellam v.

Servs., No. 12-352, 2013 WL 12093753, at *3 (N.D. Tex. May 31, 2013), aff'd sub nom. Kellam

v. Metrocare Servs., 560 F. App'x 360 (5th Cir. 2014) (“Generally, the failure to respond to

arguments constitutes abandonment or waiver of the issue.” (citations omitted)); Mayo v.

Halliburton Co., No. 10-1951, 2010 WL 4366908, at *5 (S.D. Tex. Oct. 26, 2010) (granting motion

to dismiss breach of contract claim because plaintiff failed to respond to defendants' motion to

dismiss on this issue and thus waived the argument).

Consequently, because Plaintiff failed to meaningfully oppose Defendant’s motion on

these claims, the Court will grant PBS’s motion on those issues on the grounds of waiver. See

JMCB, 336 F. Supp. 3d at 634 (finding that operative complaint could be dismissed because

plaintiff failed to respond to the substance of defendant's arguments); Apollo Energy, LLC v.

Certain Underwriters at Lloyd's, London, 387 F. Supp. 3d 663, 672 (M.D. La. 2019) (deGravelles,

J.) (finding that policy exclusion could apply because plaintiff failed to oppose insurer’s argument

on the issue); see also Wuestenhoefer, 105 F. Supp. 3d at 672 (finding that relator waived argument

as to how certain write-offs fell within a particular provision of the False Claims Act).

Consequently, Plaintiff’s claims of retaliation under the ADEA and Title VII and under the FMLA

will be dismissed.

V. Conclusion

Accordingly,

IT IS ORDERED that the Defendant’s Motion for Summary Judgment (Doc. 9) filed by

Parkview Baptist School, Inc. is GRANTED, and all claims by Plaintiff Beverly Russell against

Defendant are DISMISSED WITH PREJUDICE.

Signed in Baton Rouge, Louisiana, on March 25, 2021.

S

JUD GE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA