Fontenot v. Board of Supervisors of Louisiana State University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TELLIN FONTENOT CIVIL ACTION NO.

VERSUS 20-8-SDD-EWD

THE BOARD OF SUPERVISORS OF

LOUISIANA STATE UNIVERSITY

RULING

This matter is before the Court on the Motion for Summary Judgment1 by

Defendant, State of Louisiana through the Board of Supervisors of Louisiana State

University Agricultural and Mechanical College (“LSU”). Plaintiff, Tellin Fontenot

(“Plaintiff” or “Fontenot”) filed an Opposition2 to this motion, to which LSU filed a Reply,3

and Plaintiff filed a Sur-reply.4 For the following reasons, the Court finds that LSU’s motion

should be granted.

I. LOCAL RULE 56

In LSU’s Reply to Plaintiff’s Opposition to the Motion for Summary Judgment, LSU

correctly points out that, because Plaintiff failed to comply with the requirement of Local

Rules 56(c) & (f) to file an opposing statement of disputed facts, LSU’s properly supported

statement of undisputed facts should be deemed admitted. The Court granted Plaintiff

leave to file a Sur-Reply, to which Plaintiff attached a Statement of Disputed Facts in

1 Rec. Doc. No. 25.

2 Rec. Doc. No. 31.

3 Rec. Doc. No. 32.

4 Rec. Doc. No. 35.

Opposition to [LSU’s] List of Undisputed Material Facts,5 arguing that she “inadvertently

failed to file” this document and “prays this Honorable Court gives leave to file” it with her

Sur-Reply.6 By granting leave to file the Sur-Reply, the Court also granted leave to file

the opposing statements late, and the Court has considered these statements. However,

Plaintiff still failed to comply with Local Rules 56(c) & (f), and LSU’s proposed statements

of undisputed facts shall be deemed admitted subject to the caveat explained below.

Local Rule 56(f) provides:

Facts contained in a supporting or opposing statement of material facts, if

supported by record citations as required by this rule, shall be deemed

admitted unless properly controverted. An assertion of fact set forth in a

statement of material facts shall be followed by a citation to the

specific page or paragraph of identified record material supporting the

assertion. The court may disregard any statement of fact not supported by

a specific citation to record material properly considered on summary

judgment. The court shall have no independent duty to search or

consider any part of the record not specifically referenced in the

parties’ separate statement of facts. (emphasis added).

While Plaintiff erroneously complains that LSU violated these Local Rules,7 it is

Plaintiff that violated these rules, both procedurally and substantively. Plaintiff failed to

follow Local Rule 56 (c) and (f) and failed to properly respond to LSU’s Statement of

Uncontested Facts, which requires an opposing party to:

submit with its opposition a separate, short, and concise statement of

material facts. The opposing statement shall admit, deny or qualify the

facts by reference to each numbered paragraph of the moving party’s

statement of material facts and unless a fact is admitted, shall support

each denial or qualification by a record citation as required by this

5 See Rec. Doc. No. 35-1.

6 Rec. Doc. No. 35, p. 1.

7 Plaintiff notes: “Significantly, instead of listing only material facts that are allegedly not in dispute,

Defendant, in violation of Local Rules, has listed nearly every fact, material or otherwise, in its Statement

of Undisputed Material Facts.” Rec. Doc. No. 35-1, p. 1 n. 1. Not only is Plaintiff incorrect – a movant is not

required to anticipate or guess as to what statements of fact it may believe a non-movant may admit – but

Plaintiff’s suggestion is disingenuous, particularly where Plaintiff has violated the rules both in untimeliness,

which was forgiven, and in substance by responding in a manner that completely disregards the specific

requirements of the Rules.

rule. Each such statement shall begin with the designation “Admitted,”

“Denied,” or “Qualified” and, in the case of an admission, shall end with such

designation. The opposing statement may contain in a separately titled

section additional facts, each set forth in a separately numbered paragraph

and supported by a record citation as required by subsection (f) of this rule.8

Plaintiff has admitted the majority of LSU’s statements. Where Plaintiff sought to

qualify a statement, Plaintiff states: “Qualified. Plaintiff does not have sufficient

information to admit or deny this allegation.”9 Plaintiff does not provide how any of LSU’s

statements should be qualified; rather, by failing to cite to record evidence to support any

qualification, Plaintiff admits she cannot carry her summary judgment burden to controvert

LSU’s statements with evidence by lacking “sufficient information to admit or deny”

them.10 Plaintiff denies six of LSU’s statements - numbers 38, 39, 48, 61, 62, and part of

66. As to the first five, Plaintiff states: “Denied as written. See Plaintiff’s Lawsuit,” or

“Denied as written: Plaintiff filed a lawsuit alleging otherwise.”11 As to number 66, Plaintiff

states: “Admitted in part and denied in part. Plaintiff’s retaliation claim was reasonably

discernable via an investigation into her allegation.”12 This is not compliant with the Local

Rules, and a court is not required to search the record where a party has failed to specify

the record evidence supporting the party’s position.13

8 Emphasis added.

9 Rec. Doc. No. 35-1.

10 An opposing statement of disputed facts is not akin to answering a complaint; Plaintiff’s burden at the

summary judgment stage is to present countervailing summary judgment evidence that demonstrates how

the fact offered as undisputed by LSU is actually genuinely disputed. Plaintiff’s “lack of sufficient information

to admit or deny this allegation” is a concession that she cannot carry her burden as to that fact.

11 Rec. Doc. No. 35-1, pp. 3-4.

12 Id. at p. 4.

13 See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003)(“When evidence exists in the summary

judgment record but the nonmovant fails even to refer to it in the response to the motion for summary

judgment, that evidence is not properly before the district court. See Ragas v. Tennessee Gas Pipeline Co.,

136 F.3d 455, 458 (5th Cir.1998); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916 (5th Cir.1992), cert.

denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). ‘Rule 56 does not impose upon the district

court a duty to sift through the record in search of evidence to support a party's opposition to summary

judgment.’ Ragas, 136 F.3d at 458; Stults, 76 F.3d at 657; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th

Thus, because Plaintiff failed to controvert the properly supported Statement of

Undisputed Facts offered by LSU, most of these facts are deemed admitted for purposes

of this motion. Nevertheless, another section of this Court explained in Braud v. Wal-Mart

Stores, Inc. that “case law recognizes that the Court can still consider record evidence to

determine if there is a factual dispute.”14 To the extent Plaintiff directed the Court in her

opposition memorandum to specific, countervailing summary judgment evidence

demonstrating genuine disputes of material fact as to claims that are properly before the

Court, the Court will consider same.

II. FACTUAL BACKGROUND15

LSU is the flagship public university for the State of Louisiana with several campus

locations, including locations in Alexandria, Louisiana (“LSU-A”) and Eunice, Louisiana

(“LSU-E”).16 Plaintiff was hired by the LSU-A Division of Admissions and Recruiting on

March 21, 2016 as an Enrollment Specialist.17 Plaintiff was forty-nine (49) years old on

March 21, 2016, when she began her employment with LSU-A.18 Plaintiff was hired at an

annual salary of $31,000.19

Cir.1994), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994); Skotak, 953 F.2d at 916 n.

7; see also Nissho–Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.1988)(it is not necessary

‘that the entire record in the case ... be searched and found bereft of a genuine issue of material fact before

summary judgment may be properly entered’); cf. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)(“Judges

are not like pigs, hunting for truffles buried in briefs.”)).

14 No. 3:17-CV-320-JWD-EWD, 2019 WL 3364320 at *4 (M.D. La. July 25, 2019)(citing Smith v. Brenoettsy,

158 F.3d 908, 910 (5th Cir. 1998)(holding, where plaintiff failed to oppose the motion for summary judgment,

that facts in “Statement of Undisputed Facts” were admitted, “except to the extent that the ‘facts’ in the

‘Statement of Undisputed Facts’ are contradicted by ‘facts’ in other materials attached to his motion for

summary judgment.” (citation omitted)); Porter v. Dauthier, No. 14-41, 2015 WL 5611647 at *8, *13 (M.D.

La. Sept. 23, 2015) (deGravelles, J.)(relying on Smith and holding, when Plaintiff's opposition left “no doubt

about his disagreement with either the basis or import of each of Plaintiff's undisputed facts,” that Plaintiff

would have forty-eight hours from the issuance of the ruling to comply with the Local Rule, and ultimately

denying the motion for summary judgment)).

15 The following facts are admitted or deemed admitted in this case, unless otherwise indicated.

16 See www.lsua.edu; www.lsue.edu.

17 Rec. Doc. 1-2, ¶3; Rec. Doc. No. 25-5 (Declaration of Shelly Gill), ¶6.

18 Rec. Doc. No. 25-3 (EEOC Charge), p. 3; Rec. Doc. No. 25-4 (Fontenot Deposition), pp. 9:7-8.

19 Rec. Doc. No. 25-11 (Personnel File), pp. 1, 34.

At that time, the Chancellor of LSU-A prioritized the recruitment and assistance of

students at LSU-E, a two-year institution, with transfers to LSU-A, a four-year institution.20

Plaintiff’s position was part of that program.21 That program, which became known as

“LSUA@LSUE”, included an LSU-A Admissions and Recruitment office on the campus

of LSU-E. Although hired by LSU-A, Plaintiff’s position was located at the LSU-E

campus.22

The job duties of the LSU-A at LSU-E Enrollment Specialist are detailed in the job

description for that Position.23 As an employee of LSU-A, Plaintiff was expected to travel

to Alexandria to attend staff meetings once a quarter, for Summer Retreats, and as

needed.24 Plaintiff was the only enrollment specialist employed by LSU-A who worked at

LSU-E.25 Further, Plaintiff was the only person with the “enrollment specialist” title and

duties employed by LSU-A at any location.26

In November 2016, the position of Assistant Director of Admissions and Recruiting

became available within the LSU-A Division of Admissions and Recruiting.27 Plaintiff

applied for the position,28 and she met the minimum qualifications for the position.29

Plaintiff was among those interviewed for the position by the selection committee,30 but

the selection committee unanimously decided to hire Lauren Morgan, a 24 year-old

20 Rec. Doc. No. 25-5, ¶7.

21 Id. at ¶8.

22 Id. at ¶9.

23 Id. at ¶10; Rec. Doc. No. 25-6 (LSUA at LSUE Job Duties).

24 Rec. Doc. No. 25-5, ¶10.

25 Id. at ¶12; see also Rec. Doc. No. 25-4, pp. 21:1-3.

26 Rec. Doc. No. 25-5, ¶13; see also Rec. Doc. No. 25-4, pp. 21:4-9.

27 Rec. Doc. No. 25-5, ¶14.

28 Id. at ¶15; see also Rec. Doc. No. 1-2, ¶9.

29 Rec. Doc. No. 25-5, ¶16; Rec. Doc. No. 25-7 (Job Description – Assistant Director of Admissions and

Recruiting).

30 Rec. Doc. No. 25-5, ¶18; see also Rec. Doc. No. 1-2, ¶9.

woman, because of her specialized experience in secondary education in Rapides Parish

and connections within the Rapides Parish School Board.31 Although Plaintiff was not

selected for this position, Plaintiff received a raise to $32,000 effective on December 1,

2016.32

Guiyou Huang, Ph.D., became chancellor of LSU-A in January, 2017.33 The

transfer program between LSU-E and LSU-A was not a priority for Chancellor Huang, and

he questioned why there was a full time Admissions employee at LSU-E.34 Because LSU-

A was not establishing the programs upon which Plaintiff was working, it quickly became

hard to justify having a full time employee in the LSUA @ LSUE Office.35 Within Dr.

Huang’s first two months in the Chancellorship, it became necessary to modify the

LSUA@LSUE program and, correspondingly, to modify Plaintiff’s job duties.36

During this same time period, in February and March 2017, the Registrar’s office

needed help.37 Plaintiff’s supervisor, Shelly Gill (“Gill”) spoke with Plaintiff by phone about

the need for her position in the LSUA@LSUE office, that the Registrar’s Office needed

help, and about changing her position and job duties to add a half-time position in the

Registrar’s office in Alexandria. At that time, Plaintiff accepted the modifications to her job

duties.38 On March 3, 2017, Gill requested Plaintiff’s position be modified to be half-time

for the duties she held in Admissions and Recruiting and half-time for assistance with

transcript evaluations through the Registrar’s Office.39 This request was approved, and

31 Rec. Doc. No. 25-5, ¶19.

32 Rec. Doc. No. 25-11 (Personnel File), pp. 1, 30-31.

33 Rec. Doc. No. 25-5, ¶20.

34 Id. at ¶22

35 Id. at ¶23.

36 Id. at ¶24.

37 Id. at ¶25.

38 Id. at ¶26.

39 Id. at ¶27; Rec. Doc. No. 25-8.

Plaintiff’s duties were modified effective April 1, 2017.40

The Registrar’s Office is located on the campus of LSU Alexandria and, therefore,

Plaintiff was required to commute to Alexandria to perform that half of her new job

duties.41 At the time Plaintiff was hired, it was anticipated that LSU-A would offer several

programs on the campus of LSU-E for which Plaintiff was going to provide services in

recruiting, admissions, financial aid, and related advising to the students; however, as of

March 3, 2017, LSU-A was only offering one such program and, therefore, these

modifications were sought because Plaintiff was not needed full time.42

In July 2017, Plaintiff applied for the open position of Senior Associate Director of

Admissions and Recruiting.43 After inquiring about the open position, Plaintiff was

encouraged to apply for the position by Gill, who was also the hiring official.44 The open

position was advertised, and a search committee was established to review and interview

the candidates.45 Out of all applicants, six were selected for telephone interviews. Of

those six, three were employed at LSU-A.46 Plaintiff was one of three applicants who was

employed at LSU-A in the Admissions Office.47 The first round of interviews were all

conducted by telephone.48 The three applicants employed in the LSU-A admissions office

were evaluated by the selection committee based on their experience, their telephone

interviews, their work performance, and any leadership skills demonstrated in the

40 Rec. Doc. No. 25-5, ¶29; Rec. Doc. No. 25-8.

41 Rec. Doc. No. 25-5, ¶¶26-29.

42 Id. at ¶30.

43Id. at ¶31; see also Rec. Doc. No. 1-2, ¶13.

44 Rec. Doc. No. 25-5, ¶34.

45 Id. at ¶33.

46 Id. at ¶35.

47 Id. at ¶37.

48 Id. at ¶36.

admissions office.49 Excluding follow-up questions, all six applicants were asked the same

questions during their telephone interviews.50

After the committee conducted all six telephone interviews, it decided that Plaintiff

would not be one of the three candidates extended an in-person interview.51 That decision

was based on Plaintiff’s performance during the telephone interview and other

employment-related interactions between members of the search committee and

Plaintiff.52 During Plaintiff’s interview, when she was asked “What do you think will be the

best part of this job”, LSU claims she replied with the one word answer, “communication.”

Plaintiff was asked to elaborate, but she provided the same one-word answer,

“communication.”53

The search committee’s decision to eliminate Plaintiff from contention was

unanimous.54 Of the three candidates proceeding to in-person interviews, there was one

black female and one white female employed with LSU-A in the admissions office. The

other candidate proceeding to an in-person interview was a white female over 40 years

of age, who was a former employee of the LSU System at a different campus than LSU-

A.55 After the in-person interviews, the committee selected the white female candidate

who had previously been employed by LSU. When her references were vetted, however,

additional information was discovered, and she was removed from consideration. This

left the two remaining candidates, both of whom worked in the LSU-A admissions office.56

49 Id. at ¶38.

50 Id. at ¶39; see also Rec. Doc. No. 25-10 (List of questions asked).

51 Rec. Doc. No. 25-5, ¶41.

52 Id. at ¶42.

53 Id. at ¶43.

54 Id. at ¶44.

55 Id. at ¶45.

56 Id. at ¶46.

The committee determined that Kaitlyn Nichols (“Nichols”) would be offered the

position.57 Nichols was younger than forty when she was offered the position.58 Nichols

was qualified for the position.59 Plaintiff and Nichols both met the minimum threshold for

the Senior Associate Director of Admissions and Recruiting position, which called for a

bachelor’s degree from a regionally accredited institution and a preference of three to five

years of experience in higher education.60 At the time she was considered for the Senior

Associate Director of Admissions and Recruiting position, Nichols had worked in the LSU-

A admissions office as a recruiter since she graduated from LSU-A in May 2016. Prior to

that, she worked as a student worker in various positions for her entire college career.61

Prior to her work at LSU-A, Plaintiff’s work in higher education was not focused on

admissions or recruiting.62 Plaintiff’s last job before being hired at LSU-A in 2016 was as

a substitute teacher for the St. Landry Parish School Board.63

On August 4, 2017, Plaintiff lodged a complaint with the LSU-A Title IX / EEO

officer focusing on age discrimination; however, he Title IX/EEO officer for LSU-A was

unable to substantiate the allegation of age discrimination.64 During the pendency of the

investigation, on September 1, 2017, Plaintiff’s salary was increased to $32,240.65 The

Title IX/EEO investigation concluded on October 24, 2017.66 On October 1, 2018, Plaintiff

was awarded a merit raise and salary increase to $34,013.67

57 Id. at ¶47.

58 Id. at ¶48.

59 Id. at ¶49.

60 Id. at ¶50.

61 Id. at ¶51.

62 Id. at ¶52; see also Rec. Doc. No. 25-11, pp. 57-59 (Plaintiff’s curriculum vitae).

63 Rec. Doc. No. 25-4, (Fontenot Depo), p. 16:15-24.

64 See Rec. Doc. No. 25-11, pp. 92-93.

65 Id. at pp. 1, 27.

66 Id. at pp. 92-93.

67 Id. at pp. 1, 7.

In early 2018, as part of a refocusing of efforts by the Chancellor, Dr. Huang

decided to end the 2+2 program at LSU-E and close the LSU-A office at LSU-E.68

Plaintiff’s position as the Enrollment Specialist assigned to the LSUA@LSUE Office was

eliminated when the program ended, and the LSU-A office at LSU-E was closed.69 On

Monday, March 12, 2018, Dr. Eamon Halpin and Gill met with Plaintiff in her office at LSU-

E.70 During this meeting, Plaintiff was informed that the LSU-A office on the campus of

LSU-E was no longer needed, and the office would close no later than April 1, 2018.71

Rather than end Plaintiff’s employment, LSU-A offered her a position in the Division of

Student Engagement, maintaining the title of Enrollment Specialist with a focus on student

retention.72 Although the position offered was in a different division, the title, pay, and

benefits were not affected by the transfer.73

LSU contends no employment decision related to Tellin Fontenot’s employment in

the LSU-A Division of Admissions and Recruiting was made because of her age.74 LSU

states that many decisions, including the decision to modify Plaintiff’s job duties in March,

2017, and the decision to transfer her to the Division of Student Engagement in March,

2018, were made for the express purpose of keeping her employed by LSU-A in some

capacity, rather than a lay-off or termination of her position altogether. Although the

position offered was in a different division, the title, pay, and benefits were not affected

by the transfer.75

68 Rec. Doc. No. 25-5, ¶53.

69 Id. at ¶54.

70 Id. at ¶55.

71 Id. at ¶56.

72 Id. at ¶57.

73 Id. at ¶58; see also Rec. Doc. No. 25-11, p. 9 (Offer and acceptance of position in Division of Student

Engagement).

74 Rec. Doc. No. 25-5, ¶59.

75 Id. at ¶60.

Plaintiff filed a Charge of Discrimination with the EEOC on April 5, 2018.76 Plaintiff

digitally signed and dated the bottom of both pages of the EEOC Charge and, in doing

so, “declare[d] under penalty of perjury that the above is true and correct.”77 Per the

Plaintiff’s EEOC Charge, the earliest date discrimination allegedly took place was July 21,

2017.78 Also per the Plaintiff’s EEOC Charge, Plaintiff claims age discrimination but not

retaliation.79 Plaintiff turned in her letter of resignation on November 15, 2018.80 The

EEOC issued a Notice of Right to Sue on July 24, 2019.81

On October 23, 2019, Plaintiff filed this lawsuit in state court, claiming LSU

discriminated against her based on her age. This claim was filed within one year of

Plaintiff’s resignation and 90 days from the Notice of Right to Sue. Plaintiff’s suit was

brought under both the federal Age Discrimination in Employment Act (ADEA)82 and the

Louisiana Age Discrimination in Employment Act (LADEA)83 pursuant to the Louisiana

Employment Discrimination Law (LEDL).84 LSU removed this action to this Court based

on federal question jurisdiction and now moves for summary judgment on all claims.

Generally, LSU argues that: (1) the State cannot be sued under the ADEA; (2)

Plaintiff’s LADEA claim is prescribed; (3) Plaintiff’s retaliation claim is likewise prescribed;

(4) Plaintiff’s constructive discharge claim is also prescribed; (5) Substantively, Plaintiff

has failed to demonstrate the existence of genuine issues of material fact for trial and has

failed to present a prima facie case for any of her claims.

76 Rec. Doc. No. 25-3, p. 3.

77 Id. at pp. 3-4.

78 Id. at p. 3.

79 Id.

80 Rec. Doc. No. 25-11, p. 6. Rec. Doc. No. 1-2, ¶19.

81 Rec. Doc. No. 25-3, p. 1.

82 29 U.S.C. § 623(a)(1).

83 La. R.S. 23:311.

84 La. R.S. 23:301, et seq.

In her Opposition, Plaintiff fails to respond to LSU’s argument regarding the federal

ADEA; thus, any claims brought under the ADEA are abandoned. Plaintiff concedes she

is no longer asserting an age discrimination claim for failure to promote,85 and in her Sur-

Reply, Plaintiff states that LSU has failed to show it is entitled to summary judgment on

her “retaliation claim or for workplace harassment,” but then she also states that she is

“only asserting LADEA claims of retaliation and constructive discharge.”86

With these concessions in mind, the Court will address only the LADEA claims of

retaliation and constructive discharge/workplace harassment.

III. LAW AND ANALYSIS

A. Summary Judgment Standard

A court should grant a motion for summary judgment 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.”87 The party moving for summary judgment is initially responsible for

identifying portions of pleadings and discovery that show the lack of a genuine issue of

material fact.88 A court must deny the motion for summary judgment if the movant fails

to meet this burden.89

If the movant makes this showing, however, the burden then shifts to the non-

moving party to “set forth specific facts showing that there is a genuine issue for trial.”90

This requires more than mere allegations or denials of the adverse party's pleadings.

Instead, the nonmovant must submit “significant probative evidence” in support of his

85 Rec. Doc. No. 31, p. 1 n. 2.

86 Id. at pp. 1-2.

87 Fed. R. Civ. P. 56.

88 Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).

89 Id.

90 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted).

claim.91 “If the evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.”92

A court may not make credibility determinations or weigh the evidence in ruling on

a motion for summary judgment.93 The court is also required to view all evidence in the

light most favorable to the non-moving party and draw all reasonable inferences in that

party's favor.94 Under this standard, a genuine issue of material fact exists if a reasonable

trier of fact could render a verdict for the nonmoving party.95

B. Exhaustion/Notice

Discrimination claims brought under the LEDL are subject to a one-year

prescriptive period.96 “This one-year prescriptive period commences to run from the day

injury or damage is sustained.”97 This period is suspended during the pendency of any

administrative review or investigation of the claim conducted by the federal Equal

Employment Opportunity Commission, but no suspension “shall last longer than six

months.”98

Under federal law, a private plaintiff must exhaust administrative remedies by

timely filing a charge with the EEOC and receiving a right-to-sue notice before seeking

relief from the Court.99 Generally, Title VII's enforcement provisions require that an EEOC

charge must be filed within 180 days after the alleged unlawful employment practice has

91 State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990).

92 Anderson, 477 U.S. at 249 (citations omitted).

93 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

94 Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).

95 Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

96 La. R.S. 23:303(D).

97 King v. Phelps Dunbar, L.L.P., 98-1805 (La. 6/4/99), 743 So.2d 181, 187.

98 La. R.S. 23:303(D).

99 Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002); 42 U.S.C. § 2000e-5(f)(1).

occurred.100 However, in a “deferral state,” such as Louisiana, a claimant has an

extended, 300-day period to file an EEOC charge.101

Similarly, Louisiana Revised Statute 23:303(C) provides in relevant part:

A plaintiff who believes he or she has been discriminated against,

and who intends to pursue court action shall give the person who

has allegedly discriminated written notice of the fact at least thirty

days before initiating court action, shall detail the discrimination, and

both parties shall make a good faith effort to resolve the dispute prior

to initiating court action.102

Moreover, in Dyess v. Damann, the Louisiana Fourth Circuit Court of Appeal

affirmed a district court’s ruling from the bench that:

The statute is very clear. [Louisiana Revised Statutes] 23:303(C) says, a

plaintiff who believes he or she has been discriminated against or intends

to pursue court action shall give the person who has allegedly discriminated

written notice of this fact at least thirty days before initiating court action and

shall detail the alleged discrimination... The letter that purports to be that

notice does not comply with the statute.... The failure to comply with the

statute is fatal.103

This Court has held that, “[b]efore filing suit under the LEDL, a plaintiff must give

the proposed defendants written notice of the alleged discrimination and his intent to sue

at least thirty days before filing suit.”104 The filing of an EEOC charge of discrimination

satisfies the notice requirement.105 In Bowie v. Hodge,106 the Eastern District Court of

Louisiana held: “‘Prior to filing a lawsuit under the Louisiana anti-discrimination statute,

a plaintiff must give the proposed defendant written notice that she believes she has been

100 42 U.S.C. § 2000e-5(e)(1).

101 Conner v. La. Dep't of Health & Hosps., 247 F. App'x 480, 481 (5th Cir. 2007).

102 Emphasis added.

103 No. 12-1799 (La. App. 1 Cir. 4/26/13) 2013 WL 1791036, *1 (emphasis added).

104 Vidrine v. East Baton Rouge Parish Communications District, No. 18-00538-BAJ-EWD, 2019 WL

1303193, *3 (M.D. La. Mar. 21, 2019)(citing Martin v. Winn-Dixie Louisiana, Inc., No. 13-CV-00682-JWD-

SCR, 2015 WL 1281943 (M.D. La. Mar. 20, 2015)).

105 Id. (citing Martin, 2015 WL 1281943).

106 No. 20-2441, 2021 WL 53312, *8 (E.D. La. Jan. 6, 2021).

discriminated against at least 30 days before initiating court action.107 [T]he filing of an

EEOC charge of discrimination satisfies this notice requirement,’ but only as to the

discrimination alleged in the EEOC charge.”108 The Western District Court of

Louisiana has also held that the “[f]ailure to comply with Section 303(c) renders the un-

noticed claims subject to dismissal without prejudice.”109

Because “Louisiana courts have looked to federal jurisprudence to interpret

Louisiana discrimination laws[,]”110 the following jurisprudence and analysis applies to

Plaintiff’s LEDL claims in determining whether Plaintiff complied with the LEDL’s written

notice requirement.

“The Fifth Circuit has observed that ‘[o]ne of the central purposes of the

employment discrimination charge is to put employers on notice of “the existence and

nature of the charges against them.”’” 111 An EEOC charge must be “‘in writing under oath

or affirmation,’ must sufficiently identify the parties, and must generally describe the action

or practices that are the basis of the complaint.”112 “Federal district courts within

Louisiana, including this Court, have found that administrative remedies were not

exhausted only when the plaintiff failed to ‘check the box’ and allege any facts supporting

107 Id. (quoting Johnson v. Hosp. Corp. of Am., 767 F. Supp. 2d 678, 700 (W.D. La. 2011); see La. Rev.

Stat. § 23:303(C)).

108 Id. (quoting Johnson, 767 F. Supp. 2d at 700)(emphasis added).

109 Kern v. Ingevity Corp., No. 15-cv-2694, 2017 WL 4679460, *3 (W.D. La. Oct. 16, 2017)(citing e.g., Dunn

v. Nextel So. Corp., 207 F.Supp.2d 523, 524 (M.D. La. 2002); Stubberfield v. Offshore, No. 15-2339, 2016

WL 2855480, *2 (E.D. La. May 16, 2016)).

110 King v. Phelps Dunbar, L.L.P., 98–1805 (La. 6/4/99), 743 So.2d 181, 187.

111 Clark v. Auger Services, Inc. 443 F.Supp.3d 685, 701 (M.D. La. 2020)(quoting Manning v. Chevron

Chem. Co., LLC, 332 F.3d 874, 878 (5th Cir. 2003)(quoting EEOC v. Shell Oil Co., 466 U.S. 54, 77, 104

S.Ct. 1621, 80 L.Ed.2d 41 (1984))).

112 Id. (quoting 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.12(b)).

the retaliation claim.”113 Further, in Galarza v. Ochsner Health System, Inc.,114 this Court

noted that “[s]everal courts have recognized that constructive discharge and retaliation

claims are distinct from discrimination claims.”115

LSU argues that all remaining LADEA claims are unexhausted, prescribed, and/or

not pled. Plaintiff’s response to LSU’s arguments on exhaustion and prescription is that

she is the master of her Complaint,116 and, although

Plaintiff may have indicated that the latest act of discrimination occurred on

April 4, 2018 and/or failed to check the “retaliation box” on her EEOC

charge, the scope of Plaintiff’s complaint was not limited by what she

alleged or failed to allege on her EEOC charge, but rather by the scope of

the investigation which can reasonably be expected to grow out of the

charge - similar to how the parties gathered information during the discovery

phase of this litigation, when various material witnesses were deposed.

Third, because Plaintiff’s charge alleged discriminatory treatment of a

continuing nature, the post-charge events were simply new manifestations

of the same complaint.117

Turning to the contents of Plaintiff’s EEOC Charge, and applying relevant law to

Plaintiff’s allegations, the Court finds that Plaintiff’s claims of retaliation, hostile work

113 Id. (See, e.g., Oramous v. Military Dep't of Louisiana, No. 05-3677, 2007 WL 2344921, *2 (E.D. La. Aug.

15, 2007)(where the plaintiff did not check the retaliation box and did not mention any retaliatory conduct

in the charge; therefore, the plaintiff failed to exhaust her administrative remedies); May v. FedEx Freight

Se., Inc., 649 F.Supp.2d 451, 456 (M.D. La. 2009)(that the plaintiff did not check the retaliation box and did

not make any allegations of retaliation “confirmed” that she failed to exhaust her administrative remedies,

citing to a “plethora of Fifth Circuit jurisprudence”); and Givs v. City of Eunice, 512 F.Supp.2d 522, 536-37

(W.D. La. May 21, 2007)(where the plaintiff checked the retaliation box but did not allege “any facts

concerning retaliation” that would have put the EEOC on notice of a possible claim)(italics in

original))(emphasis added).

114 No. 12–722–JJB–RLB, 2014 WL 1431708 (M.D. La. Apr. 14, 2014).

115 Id. at *7 (citing Frazier v. Sabine River Authority Louisiana, 509 F. App'x 370, 374 (5th Cir. 2013); Bouvier

v. Northrup Grumman Ship Systems, Inc., 350 F. App'x 917, 921 (5th Cir. 2009)(“We have previously

recognized that discrimination and retaliation claims are distinct, and the allegation of one in an EEO [sic]

charge does not exhaust a plaintiff's remedies as to the other.”); Randel v. U.S. Dep't of Navy, 157 F.3d

392, 395 (5th Cir. 1998)(holding that a “discrimination claim is separate and distinct from [a] reprisal claim,

and accordingly [must be exhausted] before seeking review in federal court.”); Harvill v. Westward

Communications, LLC, 311 F.Supp.2d 573, 585 (E.D.Tex. 2004)(holding that the plaintiff's failure to assert

facts regarding constructive discharge precluded her from bringing the claim in federal court)).

116 Rec. Doc. No. 31, p. 1.

117 Id. at p. 6.

environment, and constructive discharge are not exhausted under federal law; thus,

Plaintiff has likewise failed to comply with the LEDL’s written notice requirement.

Although an allegation of retaliation was clearly an option on her EEOC Charge,

Plaintiff selected only the boxes for race and age discrimination.118 Likewise the Plaintiff’s

explanations for the allegations in her EEOC Charge do not claim retaliation or

constructive discharge. Plaintiff stated:

I began my employment with Louisiana State University of Alexandria on

March 21, 2016, most recently as an Enrollment Specialist, earning $32,000

per year. On July 21, 2017 I applied for a promotion as Senior Associate

Director of Admissions and Recruiting. On July 25, 2017, I was called for a

phone interview. I was not selected for promotion and I feel the questions

asked of me were geared to me not getting the job. Ms. Kateline Nichols,

WF, was hired. She has less qualifications that I do. Previously I had

applied for several promotions and I had not been selected either. The

person hired are younger, white employees who have less qualifications

than I do. On March 12, 2018, I was told that my job would be eliminated

and that I would need to move into another Department. I was told this by

my Supervisor, Shelley Gill, WF, and Amond Hammond, Interim Vice

Chancellor of Academic Affairs. If I did not accept the transfer I would not

have a job. I was to be the Student Engagement Retention Specialist. On

March 13, 2018, I met with Mr. Moore, BM, who was the Vice Chancellor of

Student Engagement. Mr. Moore told me if he had to advertise the job, he

would not select me. Ms. Abbey Baine, WF, 30’s, and Mr. Moore would

write out my new job description. Ms. Baine, was on my initial hiring

committee. They scheduled me to meet with them again on March 28,

2018. On March 27, 2018, Ms. Gill informed me that they would be taking

my computer and I was to report to my new job on April 2, 2018. On April

5, 2018, Mr. Moore informed me that my start date would reflect March 28,

2018. According to the company, I did not get my promotions because the

committee said they had initially hired someone in my similarly protected as

me. I believe that I have been discriminated against because of my race

(B) in violation of Title VII of the Civil Rights Act of 1964, as amended; and

because of my age (50) in violation of The Age Discrimination in

Employment Act of 19676, as amended.119

118 Rec. Doc. No. 25-3, p. 3.

119 Id. at pp. 3-4. The Court made no changes or grammatical corrections to Plaintiff’s statement in the

charge; it is typed as it appears in the charge.

No other EEOC documents, such as an intake questionnaire or investigation notes, have

been filed into the record as summary judgment evidence, and Plaintiff has presented no

evidence that the EEOC took this charge and investigated claims for retaliation, hostile

work environment, and/or constructive discharge. Plaintiff never amended her EEOC

Charge and never sought leave to amend her Complaint.

The Court finds that the factual allegations recited above demonstrate that Plaintiff

did not assert a retaliation claim, and the allegations do not support a claim for hostile

work environment or constructive discharge. The allegations only concern claims for race

discrimination (not alleged in this lawsuit) and age discrimination in the failure to promote

Plaintiff. There are no facts stating that she complained informally and/or formally about

the discriminatory treatment from which she allegedly suffered. There are no allegations

that she was teased about her age or that she was subjected to age-based discriminatory

conduct that was so severe or pervasive that it affected a term or condition of her

employment or made her feel compelled to resign. Moreover, these claims are not

reasonably expected to grow out of the allegations set forth above. The Court finds

guidance in the decisions discussed below and the jurisprudence relied upon therein.

In Slocum v. Guardsmark, L.L.C., the plaintiff, a security guard, asserted a host of

employment-related claims against her employer after she was allegedly constructively

discharged.120 The plaintiff filed an EEOC charge wherein she claimed that she was

discriminated against on the basis of her race and was subjected to a hostile work

environment; no claims of retaliation were mentioned in the charge.121 She also claimed

that black employees were repeatedly subjected to “racially motivated ‘verbal

120 No. 08-685, 2009 WL 3448126, *1 (E.D. La. Oct. 22, 2009).

121 Id.

assaults.’”122 The plaintiff subsequently filed suit and asserted claims of race

discrimination, hostile work environment, and retaliation under Title VII.123 The defendant

employer moved for summary judgment twice, arguing inter alia, that the plaintiff’s

retaliation and hostile work environment claims were not exhausted based on the

allegations in the plaintiff’s EEOC charge.124

The court dismissed the plaintiff’s retaliation claim on the defendant’s first motion

for summary judgment for lack of subject matter jurisdiction and addressed the hostile

work environment claim on defendant’s second motion.125 The plaintiff offered the

following to support her hostile work environment claim: she was effectively fired because

of her race; a white co-worker used a racial epithet twice, once referencing the plaintiff,

once referencing a black co-worker; she experienced communication problems with her

manager; a black co-worker was subjected to further racial epithets which forced her to

resign; and the defendant did not allow the plaintiff to perform site checks during her

medical leave.126

After reviewing the plaintiff’s EEOC charge, the court held that it could not

“consider Slocum's departure from Guardsmark in evaluating her claim as it was neither

mentioned in her EEOC charge, nor could one reasonably expect an EEOC investigation

to examine the circumstances of her departure based on her EEOC charge.”127 Noting

122 Id.

123 Id.

124 Id.

125 Id.

126 Id. at *2.

127 Id. at *3 (citing McClain v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir. 2008)(citing Sanchez v. Standard

Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)(employment discrimination claims cannot go forward unless

they are included in an EEOC charge or if an EEOC investigation based on the relevant charge would

encompass such claims)).

the distinction between allegations that support a hostile work environment claim and

those that would support a constructive discharge claim, the court continued:

The use of two racial epithets in the workplace, the sort of occurrences that

would give rise to a hostile work environment claim, are not “like or related

to” circumstances that would attend termination of employment, which is the

sort of factual scenario that would typically give rise to a retaliation claim.

See Gates v. Lyondell Petrochemical Co., 227 Fed. Appx. 409, 409 (5th

Cir.2007)(unpublished)(“Plaintiff's hostile environment and unequal pay

claims could not be expected to grow out of her EEOC discrimination charge

when she charged only her employer's discrete acts in terminating

and failing to promote her, and made no mention of a hostile work

environment or unequal pay.”); Dorsey v. Pinnacle Automation Co., 278

F.3d 830, 838–39 (8th Cir.2002) (hostile work environment claim did not

arise out of charges of discrete act of failure to promote based on age

discrimination); Green v. LSU Health Science Ctr., No. 07–1819, 2008 WL

4861995, at *3 (W.D.La. Nov.10, 2008)(unpublished)(barring plaintiff's

claims for racial harassment when a “fair reading” of her EEOC charge was

that she “claim[ed] she was suspended without pay because of her race.”);

Martin v. Kroger Co., 65 F.Supp.2d 516, 537–38 (S.D.Tex.1999), aff'd at

224 F.3d 765 (5th Cir.2000)(unequal pay claim did not arise out of charges

of racial and sexual discrimination). It is therefore unreasonable to expect

an EEOC investigation, sparked by a charge complaining about the use of

racial epithets in the workplace, to encompass an inquiry into the

circumstances surrounding the complainant's departure from the allegedly

offending firm. It is even more unreasonable to expect such an all-

encompassing EEOC investigation based on a charge detailing unrelated

events involving third parties. This Court therefore cannot consider the

circumstances attendant on Slocum's departure from Guardsmark in

evaluating her hostile work environment claim. McClain, 519 F.3d at 274,

quoting Sanchez, 431 F.2d at 466 (“Since 1970, the caselaw has explained

that ‘the “scope” of the judicial complaint is limited to the “scope” of the

EEOC investigation which can reasonably be expected to grow out of the

charge of discrimination.’”); see also Pacheco v. Mineta, 448 F.3d 783, 792

(5th Cir.2006).128

In Cargo v. Kansas City Southern,129 the district court for the Western District of

Louisiana addressed similar claims regarding exhaustion as raised in the present matter.

The plaintiff filed a lawsuit against her employer alleging a Title VII claim of hostile work

128 Id. at *4 (emphasis added).

129 No. 05-2010, 2009 WL 3010842 (W.D. La. Sep. 16, 2009).

environment, an Americans with Disabilities Act (“ADA”) claim, and an ADEA claim.130

The defendant moved for summary judgment on the plaintiff’s hostile work environment

claim, arguing that this claim had not been exhausted because it was not included in the

plaintiff’s EEOC charge. The plaintiff countered that “she ha[d] exhausted administrative

remedies as to her Title VII claims because her charges of class wide discrimination and

‘broad disparity in terms and conditions of employment and retaliatory discipline’ are like

or reasonably related to a claim of hostile work environment.”131

The court noted that:

“A discriminatory act alleged in a lawsuit but not included in an EEOC charge

is not ‘like or related to’ acts that are alleged in an EEOC charge simply

because both are based on the same type of discrimination.” Turner, 2008

WL at *8. In order for a particular “alleged discriminatory act to fall within the

scope of an EEOC charge, there must be some factual relationship between

the act and the acts described in the charge, beyond the fact that both

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

Id.132

The court then reviewed the claims made by the plaintiff in the lawsuit versus the

claims made in her EEOC charge.

[Plaintiff] claims in this suit that she “was subjected to a hostile work

environment on the basis of race including but not limited to” the following

incidents: (i) she was denied a promotion in September 2002 and May 2003,

(ii) she was called “too bitchy” by Jim Canada, a white male, in an incident

on October 15, 2003, where she was asking for information during a tense

situation involving the release of toxins into the air of her workplace, (iii) she

was given a ten day suspension for “rude and discourteous behavior” while

Jim Canada was given a written reprimand and referred to anger

management counseling, and (iv) she was fired on February 9, 2004 for

pretextual reasons surrounding her use of company email. [Third Supp.

Compl., Doc. 48, ¶ 72]. Kennedy argues her claim of hostile work

environment is not exhausted because it is “like or reasonably related to”

the allegations contained within her Charge of Discrimination. However,

130 Id. at *1.

131 Id.

132 Id. at *2 (quoting Turner v. St. Luke's Episcopal Health Sys., 2008 WL 706709 at *8 (S.D. Tex. Mar.14,

2008).

“THE PARTICULARS” section of Plaintiff's first Charge of Discrimination

states simply and in its entirety:

I was hired in May 1994. I was denied promotions to management in

September 2002 and May 2003; MCS project, manager of customer

service and claim agent and train dispatcher. I work as a customer

service representative.

None of these vacancies were advertised.

I believe that I have been discriminated against in violation of Title

VII of the Civil Rights Act of 1964, as amended because of my race,

Black. Blacks as a class have been discriminated against in hiring,

promotions, transfers, job assignments, training, compensation, and

other terms and conditions of employment.133

The court found that the language in the plaintiff’s charge was “simply devoid of

any indication that she believed she ‘was subjected to unwelcome harassment’ on the

basis of her race.”134 Further, “Plaintiff's general reference to ‘other terms and conditions

of employment’ is insufficient to apprise either the EEOC or KCS that she had been

subjected to the specific actions and statements alleged in the Third Supplemental

Complaint or that she was otherwise harassed in the workplace.”135 Finding that a hostile

work environment claim would not ordinarily be expected to grow out of a reasonable

investigation of the plaintiff's charge, the court granted the defendant’s motion for

summary judgment as to exhaustion of the hostile work environment claim.136

Based on the above, Plaintiff’s argument that claims of retaliation and hostile work

environment/constructive discharge are “simply new manifestations of the same

133 Id. at *3.

134 Id.

135 Id. (citing Cassey v. Coca–Cola Enterprises, No. Civ. A. 05-0152, 2006 WL 3862005, *5 (W.D. La. Dec.

29, 2006)(plaintiff's reference to his employer's discrimination against blacks in “promotions, pay, demotions

and other terms and conditions of employment” was not enough to notify the employer that he was also

subjected to unwelcome harassment in the workplace); see also, Otokunrin v. MBNA Technology, Inc., No.

Civ. A. 3:03-CV-1509-G, 2004 WL 833599, *4–5 (N.D. Tex. Apr. 16, 2004)).

136 Id.

complaint” is simply not the law. Additionally, marking the box “Continuing Violation” on

her EEOC charge does not suggest that a claim for retaliatory harassment would grow

out of the allegations.'*’ Because Plaintiffs EEOC charge contains only allegations that

would support an age discrimination failure to promote claim, which Plaintiff has

abandoned, the EEOC charge does not satisfy the written notice requirement of La. R.S.

23:303(c), and the Court must dismiss these claims without prejudice as premature.'°8

IV. CONCLUSION

For the reasons set forth above, the Motion for Summary Judgment’? by LSU is

GRANTED. Plaintiff's federal claims are dismissed with prejudice. Plaintiff's state law

claims are dismissed without prejudice. Considering the dismissal of all federal claims in

this matter, unless Plaintiff presents some other basis for federal jurisdiction, any re-filing

of these claims should be in state court.

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana on July 12, 2022.

CHIEF □□□ SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

137 See Costin v. GOTECH, Inc., No. 16-873-SDD-RLB, 2018 WL 3451513 (M.D. La. July 18, 2018)(“

Further, courts have repeatedly distinguished retaliatory termination from a harassment/hostile work

environment claim. The Fifth Circuit has expressly held that the continuing violations doctrine does not

apply to claims of retaliation because “retaliation is, by definition, a discrete act, not a pattern of behavior.”).

Id. at *8 (quoting Hamic v. Harris Cnty., W.C. & 1.D. NO. 36, 184 Fed.Appx. 442, 447 (5th Cir. 2006)).

138 The Court acknowledges that some or all of Plaintiff's LEDL claims may be prescribed; however, making

that determination would require the Court to delve into the merits of Plaintiffs claims and determine what

date(s) certain claims accrued. Such a determination would be inappropriate as, procedurally, these claims

are not properly before the Court.

139 Rec. Doc. No. 25.

23