Washington v. East Baton Rouge Parish School Board

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TERRY WASHINGTON CIVIL ACTION

VERSUS

EAST BATON ROUGE NO. 21-00192-BAJ-RLB

PARISH SCHOOL BOARD

RULING AND ORDER

This is an employment discrimination case. Plaintiffs Supplemental,

Amending, and Restated Petition alleges that Defendant East Baton Rouge Parish

School Board (“the School Board”) by and through its agents and employees, Principal

Karen Triche and Assistant Principal (“AP”) Robert Wells, harassed him based on his

age, retaliated against him for opposing unlawful age-based discrimination, and

ultimately constructively discharged him due to his age (over 40 years old). (See Doc.

6 at p. 4). Now before the Court is the School Board’s Motion for Summary

Judgment (Doce. 22), which argues that Plaintiffs action must be dismissed because

he has not shown that age motivated any adverse actions; rather, Plaintiff voluntarily

resigned. (See Doc. 22-1 at pp. 11, 14, 17). Plaintiff opposes the School Board’s Motion

in its entirety. (Doc. 27). For the reasons stated herein, the School Board’s Motion

will be granted in part and denied in part.

I. BACKGROUND

A. Summary Judgment Evidence

The parties agree to virtually nothing. However, “for purposes of this motion

only, the School Board accepts Plaintiffs version of the facts where a dispute exists.”

(See Doc. 22-1 at p. 1 n.1). Accordingly, the following facts are drawn from Plaintiffs

Statement Of Material Facts Genuinely in Dispute (Doc. 27-9, “Washington SOF”),

and the record evidence submitted in support of these pleadings.

i, Plaintiff's experience at Tara High School

Plaintiff is over the age of 40. (See Washington SOF at { I. 1). Principal Triche

and AP Wells are also over the age of 40. (See Doc. 27-8). Prior to applying to work at

Tara High School, Plaintiff worked as a tenured teacher and coach for the School

Board at other area schools. (See Doc. 39-3 at p. 5). The School Board does not hire

employees to serve solely as athletic coaches; rather, coaching is an ancillary duty.

(See Doc. 27-1 at p. 20). team comprised of Principal Triche, Athletic Director (“AD”)

Barry Jackson, and others interviewed Plaintiff and decided to hire him at Tara High

(Doc. 27-6 at p. 2-3). When Plaintiff applied for the teaching position at Tara High,

it was clear that he also applied for, and ultimately received, the head football coach

position. (See Doc, 27-1 at p. 25; Doc. 27-6 at p. 2). In January 2016, the School Board

hired Plaintiff as a teacher for Tara High School. (See Doc. 39-3 at p. 41). The School

Board paid the Plaintiff an additional 10% of his base salary for serving as the head

football coach. (See Doc. 27-1 at p. 109). Notably, AP Wells began working at Tara

after Plaintiff was hired and was not involved in Plaintiffs hiring. (See Doe. 27-1 at

p. 28).

Only the School Board possesses the authority to pursue disciplinary action

against teachers. (See Doc. 27-2 at p. 19). As Principal, Triche possessed the authority

to recommend to the School Board, when appropriate, the imposition of disciplinary

action against teachers and coaches. (See Doc. 27-2 at p. 19). Principal Triche also

possessed the authority to remove Plaintiff as head football coach at Tara High. (See

Washington SOF at { I. 10). There is no evidence in the record that Principal Triche

ever recommended to the School Board that Plaintiff be disciplined, or that Plaintiff

receive any formal disciplinary action while at Tara High. In his duel roles as teacher

and head coach of the football team, Plaintiff was supervised by Principal Triche, AP

Wells, and AD Jackson. (See Doc. 27-1 at p. 119-20; Doc. 27-3 at p. 8).

As teacher and head football coach, Plaintiffs primary duties included

teaching classes, recruiting athletes to the football program, securing fields for

games, preparing the field for games, hiring other coaches, and sometimes working

as a part-time Dean of Students.) (See Doc. 27-1 at p. 25, 29, 58, 183), During

Plaintiffs tenure as head coach, Tara High’s football team achieved a total win-loss

1 Neither party provided a complete overview of Plaintiffs duties as Dean of Students, but they seem

to include assisting with student discipline. (See Doc. 27-1 at p. 127; Doc. 49-1 at p. 18).

record of 9-31.2 (See Doc. 27-1 at p. 33). The team had a negative win-loss record prior

to Plaintiffs tenure, and Plaintiff described the program as being “in shambles” when

he started as head coach. (See Doc. 27-1 at p. 26). Principal Triche understood that

Tara High was not “a championship team,” and she was more concerned about the

conduct and academic performance of the athletes. (See Doc. 27-6 at p. 4-5). Plaintiff

was aware that Principal Triche was not concerned about his win-loss record. (See

Doc. 27-1 at p. 116). While Plaintiff was head football coach, three to four students a

year received football scholarships from colleges. (See Doc. 27-3 at p. 19). However,

several disciplinary issues involving football students occurred during Plaintiffs

tenure, and he frequently disagreed with AP Wells and Principal Triche about how

such matters should be handled. (See Doc. 27-1 at p. 120-22).

For example, in 2017, two football players were caught stealing chicken wings

from a nearby grocery store while in their Tara High football jerseys. (See Doc. 22-4

at p. 18). In 2018, two Tara High players quit the team in the middle of a game and

entered the stands to cheer for the other team. (See Doc. 22-4 at p. 23-24). In 2019, a

player was arrested and missed several practices, but still attempted to play in a

game the night he was released from custody. (See Doc. 22-4 at p. 20-23). Several

other football players were also arrested during Plaintiffs tenure as Tara High head

2 As a result of an error by AD Jackson, Tara High forfeited three wins. However, those wings are

included in Plaintiffs 9-31 win-loss record. (See Doc. 27-3 at p. 13-14). The error was related to a Tara

High football player’s ineligibility to play in games due to his failure to abide by rules mandated by

the Louisiana High School Athletic Association, (See Doc, 49-3 at pp. 61-64).

football coach. (See Doc. 27-1 at p. 36). According to Principal Triche, players were

also cutting classes, not wearing their uniforms in the manner required by school

rules, and were frequently involved in altercations with other students. (See Doc. 22-

3 at p. 31-32). Ultimately, Principal Triche and AP Wells themselves directly handled

the disciplinary action imposed against such students, but Plaintiff believed that he

should have been allowed to impose discipline against the football student-athletes

in a manner he deemed appropriate, and that “administration should never get

involved” in how he disciplined his players. (See Doc, 27-1 at p. 120-21).

Plaintiff and Principal Triche also disagreed on how Plaintiff managed the

assistant coaches. Although Plaintiff had the authority to hire assistant coaches,

Principal Triche “placed” Assistant Coach (“AC”) John Robinson on Plaintiffs

coaching staff. (See Doc. 27-1 at p. 31-32). Plaintiff objected to this assignment. See

id. Principal Triche also thought Plaintiff did not appropriately delegate duties. (See

Doe. 22-3 at p. 11-12). Even when Plaintiff became demonstrably ill during a 2019

football game, he refused to leave the field rather than turning over the coaching

duties to his assistant coaches, (See Doe. 22-3 at p. 15-16).

Relatedly, Principal Triche disapproved of Plaintiffs refusal to allow others to

help him set up the football field for games because she believed Plaintiff could not

do everything himself. (See Doc. 22-3 at p. 20), Principal Triche also allegedly received

complaints about Plaintiff from several assistant coaches, some of whom were

younger than Plaintiff. (See Doc. 27-6 at p. 12). To Principal Triche, all of this created

the impression that the football team, the coaching staff, and Plaintiff were not “on

the same page.” (See Doc. 22-3 at p. 20). Principal Triche admits, however, that she

did not pursue formal disciplinary action with Plaintiff. Rather, she claims to have

had informal discussions with him about leadership and “how to better involve his

coaches.” (See Doc. 22-8 at p. 11). Plaintiff, however, denies ever receiving negative

feedback about his football players or his alleged bad rapport with his assistant

coaches from Principal Triche. (See Doc. 27-1 at p. 128).

un. Alleged discrimination and harassment

According to Plaintiff, almost immediately after starting work at Tara High,

AP Wells and Principal Triche subjected him to “unwelcome, unabated age-based

discrimination and harassment.” (See Doc. 27 at p. 2).

Plaintiff avers that on a weekly basis AP Wells made comments about his age

and inability to do his job because of his age. (See Doc. 27-1 at p. 89, 184-85). He

points to four specific events as examples: In 2017, at the Tara High School Hall of

Fame Induction ceremony, Plaintiff claims AP Wells said to him “Coach, I ain’t know

you can run like that, bet you can’t run like that now.” (See Doc. 27-1 at p. 85). Also

in 2017, AP Wells made a comment about Plaintiff needing to slow down or risk

having a heart attack that was overheard by Assistant Coach (“AC”) Marqus Mitchell.

(See Doc. 27-4 at p. 6). According to AC Mitchell, the comment was not meant

maliciously. fd. In 2019, AP Wells, upon viewing an old photograph of Plaintiff,

remarked, “Coach, where you get this picture from? ... Coach, this an old picture. You

don't look like this here. You look old. This not you.” (See Doc. 27-1 at p. 49). Plaintiff

claims that Principal Triche was present when this comment was made and that she

laughed it off and said that AP Wells didn’t mean anything by it. (See Doc. 27-1 at p.

50—51; Doc. 27-1 at p. 126). On May 24, 2020, during a Zoom call with Plaintiff and

other teachers, AP Wells commented to Plaintiff, “Coach, man, look at you, man.

Coach, you look bad. You look old. You need to do something about yourself.” (See

Doc. 27-1 at 47). Plaintiff admits he hadn’t shaved that day and “was looking rough.”

Id.

Plaintiff also complains that many of AP Wells’ actions towards him were

calculated to secure his termination/retirement and replace him with someone

younger. (See Doc. 27 at p. 2). For example, Plaintiff alleges that in July 2019, AP

Wells initially denied Plaintiffs two-percent stipend of base pay for summer football

work. (See Doc. 27-1 at p. 64). To get paid, Plaintiff contacted Human Resources and

the matter was resolved. (See Doc. 27-1 at p. 64). In December 2019, AP Wells

allegedly dented Plaintiffs request for lodging reimbursement at a coach’s conference,

although the School Board paid for other head coaches to attend. (See Doc. 27-1 at p.

71). On another occasion, AP Wells appointed a younger coach as the boys’ head track

coach, although Plaintiff wanted the job, substituted frequently as the interim boys’

head track coach, and served as the girls’ head track coach. (See Doc. 27-1 at p. 95).

When Plaintiff substituted as the boys’ head coach, he did not get paid. (See Doc. 27-

lat p. 91-92).

Plaintiff confronted AP Wells about his comments and conduct and said on one

occasion, “I know what youre doing.” AP Wells allegedly replied, “What are you

talking about, Coach? I’m in your corner.” Plaintiff then said, “No, you're not in my

corner. I know what you're trying to do.” (See Doc. 27-1 at p. 59). Plaintiff also

reported some of AP Wells’ comments and conduct to Principal Triche, who claims

she spoke to AP Wells about Plaintiffs complaints. (See Doc. 27-6 at p. 8).

Regarding Principal Triche, Plaintiff points to one specific example of an

age-based comment. In 2019, after a football game where Plaintiff fell 111, AC Mitchell

heard her say that Plaintiff was “too old to do the job.” (See Doc. 27-4 at p. 2-3).

Additionally, Principal Triche took various actions that, in Plaintiffs view, were

intended to force his retirement. In Fall 2018, Princtpal Triche assigned Plaintiff to

teach the “Journeys to Careers” class, which Plaintiff avers has a reputation as the

class taught by teachers who were preparing to retire. (See Doc. 27-1 at p. 52-58). In

Spring 2019, Principal Triche removed Plaintiff from performing duties as a Dean of

Students, allegedly signaling AP Wells’ desire to replace Plaintiff with a younger

head football coach. (See Doc. 27-1 at p. 114). In January 2020, Principal Triche and

AP Wells allegedly notified Plaintiff of a head coach position available at a private

school in the city of New Iberia and suggested to Plaintiff that he should apply for the

position. (See Doc. 27-1 at p. 103). To take a job in the private sector, Plaintiff would

have been required to retire from the East Baton Rouge Parish School System. See

id. In February 2020, Principal Triche allegedly told Plaintiff that he should “move

on” from grieving for his recently deceased wife, then suggested that they have a

discussion about the direction of the football program. (See Doc. 27-1 at p. 86-87).

According to Plaintiff, the situation came to a head on May 18, 2020, during a

phone call with Principal Triche. (See Doc. 27-1 at p. 44-45). Plaintiff told Principal

Triche that he was having suicidal thoughts because the birthdays of his deceased

wife and mother were approaching. Jd. Principal Triche expressed sympathy but told

him that after speaking with AP Wells, she decided to move the football program in

another direction. fd. When Plaintiff asked why, Principal Triche allegedly replied

that the other coaches couldn’t relate to him and that the school needed to “go

younger.” She then asked Plaintiff to retire. Jd. Plaintiff insisted that he wanted to

coach until January 2023, to which Principal Triche replied, “Well that’s not going to

happen...] need for you to retire, either you do it or I’m going to do it for you.” Jd,

Plaintiff perceived this comment as a threat. (See Doc. 27-1 at p. 80). However,

Plaintiff also knew that Principal Triche was only referring to the head coach

position, and that he could have remained at Tara High as a teacher. (See Doc. 27-1

at p. 56-57).

Two days later during a May 20, 2020 faculty Zoom meeting, Principal Triche

was asked if any teachers were planning to retire. (See Doc. 27-1 at 46). She answered

that two teachers had notified her of their retirement plans, and that she was waiting

on one other person to do so. Although Plaintiff believed that he was the teacher

referenced in her statement, he admits that Principal Triche did not mention him or

any other teacher by name. Id.

On May 26, 2020, during a meeting with the assistant coaches, Principal

Triche removed Plaintiff as head football coach and named a younger coach as interim

head coach. (See Doc. 27-1 at p. 59-60). Plaintiff was not in the meeting. He learned

about it from the assistant coaches. Id.

In early June, Plaintiff sent an email to the School Superintendent and the

Director of Human Resources informing them that Principal Triche told him he

“needed to either resign or retire ASAP as to not put her in a position to make the

decision for him.” (See Doc. 27-1 at p. 142). After explaining the difficulties he

experienced working with AP Wells and describing the February 2020 and May 2020

conversations with Principal Triche, Plaintiff wrote that he was resigning from the

School Board effective June 8, 2020. fd. Notably, Plaintiff admits that this letter was

the first and only time he reported the remarks and behavior of Principal Triche and

AP Wells to the School Board. (See Doc. 27-1 at p. 50, 80). On June 24, 2020, the

School Board approved his retirement. (See Doc. 22-10). On July 8, 2020, the School

Board hired Hansoni Holland, who is under 40 years old, as Tara High’s head football

coach. (See Doc. 27-1 at p. 107). Thereafter, Plaintiff submitted Intake Questionnaires

to the Equal Employment Opportunity Commission (EEOC) and the Louisiana

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Commission on Human Rights (LCHR) on July 23, 2020 and filed a charge of

discrimination on September 24, 2020. (See Doc. 27-8 at p. 1, 32).

B. Procedural History

Plaintiff initiated this action on February 24, 2021 1n the 19th Judicial District

Court for the State of Louisiana, alleging that the School Board, through Principal

Triche and AP Wells, discriminated against, harassed, retaliated against, and

ultimately constructively discharged him due to his age, violating the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, the Louisiana

Employment Discrimination Law (LEDL), La. R. 8. 23:301, et. seg., and the Louisiana

Whistleblower Statute (LWS), La. R.S. 23:967. (See Doc. 1-3 at pp. 2-4). Thereafter,

the School Board timely removed the case to this Court and now moves for summary

judgment. (Doc. 1-2; Doc. 22). The School Board argues that Plaintiff cannot show

that age was a motivating factor in any adverse employment decision suffered by

Plaintiff, that many of Plaintiffs harassment and retaliation allegations are

time-barred, and that Plaintiff voluntarily resigned. (See Doc. 22-1 at pp. 9-18).

Plaintiff opposes the School Board’s motion in its entirety. (Doc. 27).

Il. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that, “[t]he court shall grant

summary judgment if the movant shows 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). When determining whether the movant is entitled to judgment as a matter

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of law, the Court views facts in the light most favorable to the non-movant and draws

all reasonable inferences in their favor. See Coleman v. Houston Indep. Sch. Dist., 118

F.3d 528, 533 (5th Cir. 1997). After a party moves for summary judgment, the

non-movant must set forth specific facts showing there is genuine issue for trial. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “At this stage, the Court

does not evaluate the credibility of witnesses, weigh the evidence, or resolve factual

disputes.” Minnis v. Bd. Of Sup’rs of Louisiana State Univ. & Agric. & Mech. Coil.,

55 F. Supp. 3d 864, 873 (M.D. La. 2014). Rather, the Court simply asks whether the

evidence in the record is sufficient for a reasonable jury, “drawing all inferences in

favor of the non-moving party, could arrive at a verdict in that party’s favor.” Int'l

Shoristop, Inc. v. Rally’s, Inc., 989 F.2d 1257, 1268 (5th Cir. 1991). If the answer is

yes, the motion for summary judgment must be denied. See id.

On the other hand, the non-movant cannot satisfy their evidentiary burden by

some metaphysical doubt as to the material facts, conclusory allegations,

unsubstantiated assertions, or a mere scintilla of evidence. See Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (6th Cir. 1994). If the non-movant “fails to make a showing

sufficient to establish the existence of an element essential to that party's case,”

summary judgment is appropriate. Celotex Corp. vu. Catrett, 477 U.S. 317, 324 (1986).

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TH. DISCUSSION

A. Issue in Plaintiff's Petition

Before addressing the merits of Plaintiffs claims, the Court must address a

significant issue in Plaintiffs Petition.

In Plaintiffs Opposition (Doc. 27), Plaintiff writes, “[t]he LEDL, La. R.S.

23:312(D), contains its own retaliatory provision. Defendant is silent as to whether it

challenges summary judgment as to plaintiffs claim in this regard. Any argument

otherwise is waived.” (See Doc. 27 at p. 24 n.102). However, upon careful review of

Plaintiffs original and amended Petition, Plaintiff did not plead a claim of retaliation

under LEDL, La. R.S. 23:312(D). Rather, each Petition alleges, “[t]he actions and

deliberate inactions of defendant constituted illegal discrimination and harassment

in violation of the Louisiana’s Employment Discrimination Law, La. R.S. 28:301, et

seq., ADEA, 29 U.S.C. §623(a), age-based retaliation under the ADEA, 29 U.S.C.

§623(d), and reprisal under La. R.S. 23:967, including retaliatory harassment and

constructive discharge.” (See Doc. 6 at □ 12).

La. R. S. 23:312(D) is separate and distinct from the ADEA, 29 U.S.C. § 6238),

its federal counterpart. Having already afforded Plaintiff an opportunity to amend

his original petition, and recognizing that at this stage of the litigation prejudice will

result to the School Board if the Court permits Plaintiff yet another opportunity to

amend his petition, the Court must hold the Plaintiff to what is described in his

Supplemental, Amending, and Restated Petition. Having failed to properly plead an

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age-based retaliation claim under LEDL, the Court must disregard Plaintiffs

arguments as to that claim.

B. When Was Plaintiffs Charge of Discrimination “Filed” ?

As an initial matter, the Court must address the issue of the timing of

Plaintiffs charge of discrimination with the EEOC and, in turn, which claims are

‘properly before the Court.

For ADEA claims, the filing date is significant because “[i[n Louisiana, a

Plaintiff has 300 days from the date of the alleged discriminatory conduct to file a

charge of discrimination with the HEOC.” See Minnis, 55 F. Supp. 3d at 874 (citing

Janmeja v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. College, 96 Fed.

Appx. 212, 214 (5th Cir. 2004)). Thus, under the ADEA, any alleged discriminatory

conduct occurring or claims arising prior to 300 days of filing are time-barred.

The parties agree that Plaintiffs EEOC charge of discrimination form was

signed on September 24, 2020.8 (See Doc. 22-11; Doc. 27-8 at p. 32). Measured against

this date, any actions occurring prior to November 29, 2019, are barred from the

Court’s review.

3 A discrimination charge is considered “filed” for purposes of the ADEA on the date the EEOC receives

the charge, not the date the charge is signed or mailed. See Taylor v. Gen, Telephone Co, of the

Southwest, 759 F. 2d 487, 441-42 (6th Cir. 1985). However, neither party has raised this issue. Thus,

for purposes of the motion sub judice, the Court assumes the EEOC filing date is the date Plaintiff

signed or submitted his EEOC documentation.

14

Plaintiff, however, argues that the submission of his Intake Questionnaire

forms to the EEOC and LCHR on July 23, 2020 constitutes the actual filing date of

his charge of discrimination. (See Doc. 27 at p. 21 n.97; Doc. 27-8 at p. 1).

In support of his argument, Plaintiff cites Equal Emp. Opportunity Comm'n v.

Vantage Energy Servs., Inc., where the U.S. Court of Appeals for the Fifth Circuit

held that an employee’s Intake Questionnaire qualified as a charge, based on the

Supreme Court’s Holowecki test. 954 F.3d 749, 754 (5th Cir. 2020) (citing Fed.

Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)). The Fifth Circuit instructed

that an employee’s Intake Questionnaire may act as an EEOC Charge if it: (1)

precisely identifies the parties; (2) generally describes the action or practices

complained of; and (8) and indicates that the employee intends to file a charge of

discrimination and/or authorizes the EEOC to investigate the alleged discrimination.

See Vantage, 954 F.3d at 754.

Here, Plaintiffs July 23, 2020 Intake Questionnaires identified the School

Board and Principal Triche as the sources of the alleged age-based discrimination

and generally described Plaintiff's claim of “forced retirement.” (See Doc. 27-8 at pp.

3, 7). But unlike the employee in Vantage, and unlike what Plaintiff asserts in his

Memorandum in Opposition to the Motion,* Plaintiff did not check Box 2 on his Intake

relevant part, Plaintiffs Memorandum in Opposition to Motion for Summary Judgment asserts:

Like in Vantage, Mr. Washington checked Box 2 to his Intake Questionnaire stating

that he wanted to file a Charge of Discrimination which was later verified by executing

a notarized “Summary Document” drafted by the EEOC Investigator.

(See Doc. 27 at p. 21n.97).

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Questionnaire, indicating that he wanted to file a charge of discrimination. (See Doc.

27-8 at p. 5). However, under EEOC regulations, “[a] charge may be amended to cure

technical defects or omissions, including [the] failure to verify the charge, or to clarify

and amplify allegations made therein. Such amendments ... will relate back to the

date the charge was first received.” See 29 C.F.R. § 1601. 12(a). See also Edelman. v.

Lynchburg College, 535 U.S. 106, 118 (2002) (upholding the EEOC’s relation-back

regulation). According to Plaintiffs EEOC charge records, Plaintiffs Box 2 technical

defect was cured on September 14, 2020 during an interview with EEOC

investigators where Plaintiff verified he intended to file a charge of discrimination

against the School Board. (See Doc. 87-8 at pp. 3, 5). Thus, Plaintiff's failure to check

Box 2 on his Intake Questionnaire is not fatal to his claims. In sum, Plaintiff's EEOC

Intake Questionnaire was sufficient as a charge of discrimination, and ADEA claims

arising 800 days prior to July 23, 2020 are timely by virtue of the EEOC’s

relation-back regulation. See 29 C.F.R. § 1601. 12(a). However, any ADEA claims filed

prior to September 27, 2019 are time-barred.

Under the LEDL, claims are subject to a prescriptive period of 12 to 18 months,

depending on whether an investigatory suspension period applies. See La. R. 8.

23:303(D). To compute the tolling of prescription of Plaintiffs claims under the LEDL,

the Court begins its analysis by considering the date Plaintiff's cause of action

accrued, which is when Plaintiff filed his charge of discrimination, and then

determines how much time expired before the EEOC issued the right to sue letter.

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See Clark v. Auger Servs., Inc., 443 F. Supp. 3d 685, 711 (M.D. La. 2020). As noted,

Plaintiffs July 23, 2020 Intake Questionnaire constitutes the filing of his charge of

discrimination, and the HREOC issued the right to sue letter on May 5, 2021, which is

nine months later. (See Doc. 6 at p. 4). Thus, pursuant to La. R. S. 23:303¢D), Plaintiff

is only entitled to a maximum six-month suspension. The prescriptive period began

to run on June 30, 2020, the date of discharge identified on Plaintiffs EEOC form and

the last possible date of an alleged discriminatory act. The 18-month prescriptive

period ended on or about December 30, 2021, so the LEDL claims asserted in

Plaintiffs February 23, 2021 Complaint are timely.

However, Plaintiff's reprisal claim under LWS is not subject to the same filing

date rule or prescription period standard as his claims under ADEA and LEDL.

Instead, because La. R.S. 23:967 does not specifically impose a prescriptive period

standard, Plaintiffs reprisal claim “is subject to the general one-year prescriptive

period for delictual actions provided in La. Civ. Code art: 3492.” Nolan v. Jefferson

Par. Hosp. Serv. Dist. No. 2, 01-175 (La. App. 5 Cir. 6/27/01), 790 So. 2d 725, 733.

Prescription begins to run from the day the injury was sustained, which is June 30,

2020, the date of discharge listed on Plaintiffs EEOC form. Because Plaintiff filed

suit on February 23, 2021, which is within the one-year prescriptive period, his LWS

reprisal claim is timely.

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C. Whether the ADEA and LWS Claims Were Administratively

Exhausted

The School Board argues that Plaintiffs ADEA claim of age-based retaliation

and LWS claim of reprisal were not administratively exhausted and thus are not

properly before the Court. (See Doc. 22-1 at p. 17). In support, the School Board cites

to Plaintiffs September 24, 2020 EEOC charge of discrimination form and points out

that Plaintiff failed to include an allegation of retaliation or reprisal. (See Doc. 22-1

at p. 17 (citing Doc. 22-11)). Plaintiff also failed to include retahation or reprisal

claims in his July 23, 2020 Intake Questionnaires to the HEOC and LCHR. (See Doc.

27-8). In his Memorandum in Opposition to Summary Judgment, Plaintiff does not

assert a defense to the School Board’s exhaustion argument, other than to offer the

conclusory statement, “[Plaintiff] exhausted all of his administrative remedies and

none of his claims are prescribed.” (See Doc. 27-8 at p. 25). Nevertheless, the Court

will examine the record to determine whether Plaintiff administratively exhausted

his retaliation and reprisal claims under the ADEA and the LWS, respectively.

Under the ADEA, the exhaustion of administrative remedies by filing a charge

of discrimination with the EEOC 1s a precondition to seeking judicial relief. See 29

U.S.C. § 626(d). In Walton-Lentz v. Innophos, Inc., the Fifth Circuit held that

administrative-exhaustion requirement is also considered met for any other

claims within ‘the scope of the EEOC investigation which can reasonably be expected

to grow out of the charge of discrimination.” 476 F. App'x 566, 569 (5th Cir. 2012)

(citing Pacheco v. Mineta, 448 F. 3d 783, 789 (5th Cir. 2006)). “Federal district courts

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within Louisiana, including this Court, have found that administrative remedies

were not exhausted [] when the Plaintiff failed to ‘check the box’ and allege any facts

supporting the retaliation claim.” Clark, 443 F. Supp. 3d at 708.

Here, Plaintiff did not check the retaliation box on his July 23, 2020 EEOC

Intake Questionnaire, he did not circle “retaliation” on his July 23, 2020 LCHR Intake

Questionnaire, and he answered “No” when asked if he engaged in activity protected

by ADEA. (See Doc. 27-8 at pp. 3, 6, 30). Furthermore, in his charge of “forced

retirement,” Plaintiff did not allege any facts that would have put the EEOC or the

School Board on notice of a retaliation claim. Instead, Plaintiff claimed he was forced

to retire because Principal Triche wanted a younger head football coach, not because

Principal Triche or the School Board retaliated against him for engaging in protected

conduct. (See Doc. 27-8 at p. 18). Thus, the Court concludes that Plaintiffs retaliation

claim under ADEA cannot reasonably be expected to grow out of his discrimination

charge and therefore was not administratively exhausted. Accordingly, the Court

lacks jurisdiction over Plaintiffs ADEA retaliation claim and it must be dismissed.

However, on its face, the LWS does not feature an exhaustion requirement. See

La. R.S. 23:967. This is also supported by case law. See, e.g., Crowe v. Se. Cmty. Health

Sys., No. CIV.A. 10-2838, 2014 WL 1456352 (E.D. La. Apr. 15, 2014) (discussing the

elements of the LWS with no mention of exhaustion as a requirement). Thus,

Plaintiffs reprisal claim under the LWS is properly before the Court.

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D. Age Discrimination under AEDA and LEDL

Under the ADEA, it is unlawful for an employer to “discharge any individual

or otherwise discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's age.” 29

U.S.C. § 623(a)(1). To prove an ADEA violation, an employee must show by a

preponderance of the evidence “that age was the ‘but-for’ cause of the challenged

employer decision.” Tagliabue v. Orkin, L.£.C., 794 F. App'x 389, 393 (5th Cir. 2019).

An employee can offer direct or indirect evidence as proof of discrimination. See id.

Here, Plaintiff offers sufficient direct evidence. (See Doc. 48, p. 16).

Direct evidence is evidence that proves the fact in question without inference

or presumption. See McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934

F.3d 447, 457 (5th Cir. 2019). Plaintiff argues that the workplace comments by

Principal Triche and AP Wells are direct evidence of age discrimination. (See Doc. 27,

p. 13—14.) In Etrenne v. Spanish Lake Truck & Casino Plaza, E.L.C., the Fifth Circuit

identified a four-factor test to determine whether comments in the workplace

constitute direct evidence or only “stray remarks.” 778 F. 3d 478, 476 (6th Cir. 2015).

To be considered direct evidence, comments must be: (1) related to the plaintiffs

protected characteristic; (2) proximate in time to the challenged employment decision;

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

and (4) related to the challenged employment decision. See td.

20

Here, the Court concludes that Principal Triche’s comment to Plaintiff on the

May 18, 2020 phone call may be accepted as direct evidence of age discrimination.

According to Plaintiff, when Plaintiff asked why she wanted to remove him as head

football coach, Principal Triche replied: “Well, the coaches can’t relate to you... Coach,

we just need to go younger.” (See Doc. 27-1 at p. 45). As alleged, Principal Triche’s

comment requires no inference or presumption that age played a role in Plaintiffs

alleged constructive discharge. It also satisfies the Etienne test for workplace

comments offered as direct evidence of discrimination. Factors one, two, and four are

easily met: Principal Triche’s comment was related to Plaintiffs age; she said it

proximate in time to Plaintiffs alleged constructive discharge; and the comment is

related to the Plaintiffs alleged constructive discharge.

The School Board argues that factor three is not met here because Principal

Triche “lacked the authority to compel Plaintiff to retire or take any adverse

employment action against him.” (See Doc. 29). While it is undisputed that, per School

Board policy, Principal Triche lacked the formal authority to fire Plaintiff, Plaintiffs

central claim is that Principal Triche constructively fired him. Here, at the summary

judgment stage, such evidence tending to show that Plaintiff may have been

constructively discharged is sufficient to allow his age discrimination ADEA claim to

proceed. See Reed v. Neopost USA, Inc., 701 F.3d 4384, 441 (5th Cir. 2012). See also

Hawkins v. Frank Gillman Pontiac, 102 F. App'x 394, 397 (6th Cir. 2004).

21

To prove constructive discharge, “an employee must offer evidence that the

employer made the employee’s working conditions so intolerable that a reasonable

employee would feel compelled to resign.” Barrow v. New Orleans SS. Ass'n, 10 F.3d

292, 297 (5th Cir. 1994). In determining whether a reasonable employee would feel

compelled to resign, courts typically consider whether the employee has been

subjected to: (1) a demotion; (2) a salary reduction; (8) a reduction in job

responsibilities; (4) reassignment to menial work; (5) reassignment to work under a

younger supervisor; (6) badgering, harassment, or to humiliation by the employer,

that is calculated to encourage an employee's resignation; or (7) has been offered early

retirement or continued employment on less favorable terms. See id. These factors

may be considered separately or in combination. See id.

Because Plaintiff filed his EEOC charge on July 23, 2020, any alleged

discriminatory acts occurring prior to September 27, 2019 are time-barred and cannot

form the basis for Plaintiffs constructive discharge claim. However, viewing the

remaining evidence in a light most favorable to Plaintiff, the Court finds that Plaintiff

has proven constructive discharge sufficient to survive summary judgment. Five of

the seven elements are present.

Principal Triche’s removal of Plaintiff as head football coach satisfies factors

one, two, and three. It resulted in a reduction in Plaintiffs status and rank at Tara

High because it reduced his salary by 10% and eliminated certain job responsibilities.

Furthermore, taken in combination, Principal Triche’s and AP Wells’ successive

22

comments on May 18, 20, and 24 of 2020 satisfy factors six and seven. Principal

Triche’s comment, “I need for you to retire, either you do it or I’m going to do it for

you,” is more than merely an offer of retirement, it suggests termination. This

statement, combined with AP Wells’ comments about Plaintiffs appearance and age

in front of other teachers during the Zoom meeting and Principal Triche’s comment

that she was waiting for one other person to retire, is enough to create a material

dispute regarding whether Plaintiff was subjected to badgering, harassment, and

humiliation calculated to encourage his resignation.

In sum, because Plaintiff has proven direct evidence that age was a “but-for”

cause of his alleged constructive discharge, his age discrimination claim under ADEA

survives summary Judgment. And, because Louisiana courts routinely analyze state

law discrimination claims under the same framework and jurisprudence as federal

claims, Plaintiffs LED age-based discrimination claim also survives summary

judgment. See generally Wyerick v. Bayou Steel Corp., 887 F.2d 1271 (6th Cir. 1989).

E. Age-Based Harassment under AEDA and LEDL

To maintain an age-based hostile work environment claim under the ADEA,

Plaintiff must establish that (1) he was over the age of 40; (2) he was subjected

to harassment, either through words or actions, based on age; (3) the nature of

the harassment was such that it created an objectively intimidating, hostile, or

offensive work environment; and (4) there exists some basis for liability on the part

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of the employer. See Dediol v. Best Chevrolet, Inc., 655 F.8d 485, 441 (5th Cir. 2011)

(citing Crawford v. Medina Gen. Hosp., 96 F.3d 830 (6th Cir. 1996)).

In support of his hostile work environment claim, Plaintiff cites to the

age-based, discriminatory comments and actions of AP Wells and Principal Triche.

(See Doc. 27 at p. 23). Plaintiff avers that this behavior was continuous over his

four-year tenure at Tara High. In response, the School Board argues that many of the

alleged age-based comments, including the specific comments by AP Wells in 2017,

are time-barred. Without reaching the merits of this issue, and even assuming,

arguendo, that Plaintiff can prove elements one, two, and four, the Court concludes

that Plaintiffs age-based harassment claim must be dismissed because Plaintiff

cannot prove element three.

To “satisfy the third element of a prima facie case, a plaintiff must demonstrate

that the harassment was objectively unreasonable.” Dediol, 655 F.3d at 441. And to

determine whether conduct is objectively offensive, courts consider the totality of the

circumstances, including: “(1) the frequency of the discriminatory conduct; (2) its

severity; (8) whether it is physically threatening or humiliating, or merely an

offensive utterance; and (4) whether tt interferes with an employee's work

performance.” /d. (citing E.E.0.C. v. WC&M Enterprises, Inc., 496 F.3d 393 (5th Cir.

2007)).

Here, Plaintiff alleges that the evidence amounts to “weekly ageist

commentary,” deprivation of his job duties by Principal Triche and AP Wells because

24

of his age, and “active attempts to force him into retirement.” (See Doc 27 at p. 24).

Even taking these allegations as true and viewing them in the light most favorable

to Plaintiff, they do not rise to the level of objective offensiveness contemplated by the

standard,

“Frequent incidents of harassment, though not severe, can reach the level of

‘pervasive,’ thereby altering the terms, conditions, or privileges of employment such

that a hostile work environment exists.” Lauderdale v. Texas Dep't of Crim. Just.,

Institutional Div., 512 F.8d 157, 163 (6th Cir. 2007). “Put differently, the required

level of severity or seriousness varies inversely with the pervasiveness or frequency

of the conduct.” See Dediol, 655 F.3d at 442. Here, the alleged weekly discriminatory

actions and age-based comments of Principal Triche and AP Wells were not as

frequent as the conduct in other cases where the Fifth Circuit has found evidence

supporting a hostile work environment claim. See Dediol, 655 F.3d at 442 (finding

that a “half-dozen daily times of remarks [ ] support an actionable claim for age

harassment”). Nor did their conduct amount to the level of severe conduct the Fifth

Circuit considers to be examples of objectively unreasonable harassment. See id. at

441—42 (concluding that profane comments such as “Get your old {*****g a** over

here” and “old mother******” are sufficiently severe to create a hostile working

environment).

Furthermore, Plaintiff has not offered evidence that AP Wells’ and Principal

Triche’s comments and actions were physically threatening, humiliating, or that they

25

impacted his work performance. In fact, regarding his work performance during the

relevant time period, it must be noted that Plaintiff points out that Tara High won

more football games in the period leading up to his alleged constructive discharge

than any other year of his tenure as head football coach. (See Doc. 27 at p. 2). Thus,

the totality of the circumstances weighs against a finding that Principal Triche’s and

AP Wells’ alleged harassment was objectively unreasonable such that it impacted his

performance. As a result, Plaintiff cannot prove that he was subjected to a hostile

work environment while working for the School Board. His age-based harassment

claims under ADEA and LEDL must be dismissed.

F, Reprisal Claim under LWS

The parties dispute whether the School Board adequately addressed or waived

its opposition to Plaintiffs state law reprisal claim in its summary judgment motion.

In its Memorandum, the School Board argues that “[rJeprisal under La. R.S. 23:937

is analyzed under the same framework as federal retaliation,” signaling that it

asserts the same arguments against both claims. (See Doc. 22-1 at p. 17 n.6). But

according to Plaintiff, his “reprisal claim under La. R. 8S. 23:967 is textually different

than the ADA [sic] and does not employ the same framework.” (See Doc. 27 at p. 24

n.103). He then argues, “Defendant’s failure to separately address the elements of

plaintiffs La. R. 8. 23:967 claim is fatal.” See id.

Upon review of the caselaw, the Court cannot find any federal or state law

precedent that directly addresses the analytical similarities or differences between

26

retaliation under the ADEA and reprisal under the LWS. However, contravening

Plaintiffs assertions, these courts have held that retaliation standards under other

federal anti-discrimination statutes, such as Title VI and the ADA, are “materially

indistinguishable” from the standard governing reprisal under the LWS. Strong v.

Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 805 n.1 (5th Cir, 2007). See also Dobyns

v. Univ. of Loutstana Sys., 2018-0811 (ua. App. 1 Cir. 4/12/19), 275 So. 3d 911, 927

(“For the same reasons we find that Dr. Dobyns prevailed on her retaliation claim

under the ADA, we find that Dr. Dobyns experienced a reprisal as a result of

disclosing a prohibited practice in accordance with La. R.S. 23:967.”).

Plaintiff also argues that reprisal under LWS “seems to offer broader

protections than its federal counterpart,” but here, the LWS is not broad enough for

Plaintiffs reprisal claam to survive summary judgment. Schroeder v. Greater New

Orleans Fed. Credit Union, 664 F.3d 1016, 1026 (5th Cir. 2011). The language of the

statute is clear that “an employee is required to advise the employer of the alleged

violation before having a cause of action.” Porto v. TBC Grand Bayou, LLC, 2019-

1376 (La. App. 1 Cir. 5/11/20), 303 So. 8d 1060, 1064. Here, it wasn’t enough for

Plaintiff to silently oppose the conduct of Principal Triche and AP Wells. Something

more affirmative is required. Plaintiff failed to inform the School Board of the alleged

age discrimination, so his reprisal claim under the LWS must be dismissed. See id.

(affirming trial court’s dismissal of plaintiffs reprisal claim at the summary judgment

stage where plaintiff failed to inform employer of the alleged discrimination).

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IV. CONCLUSION

Summary judgment, particularly in the context of discrimination cases, is

about evidence. After reviewing the record carefully, the Court finds that Plaintiff

has submitted enough evidence to create a material dispute regarding his age

discrimination claims under the ADEA and the LEDL. However, for the reasons

offered, no other claims survive.

Accordingly,

IT IS ORDERED that the School Board’s Motion for Summary Judgment

(Doc. 22) is GRANTED in part.

IT IS FURTHER ORDERED that Plaintiffs age-based retaliation claim

under ADEA, 29 U.S.C. § 628(d), is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs age-based harassment claim

under ADEA, 29 U.S.C. § 623(a), is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs age-based harassment claim

under LEDL, La R. S. 301, et. seq. is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs reprisal claim under LWS, La.

R. 23:367 is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that in all other respects the School Board’s

Motion is DENIED.

Baton Rouge, Louisiana, this day of December, 2022

JUDGE BRIAN ; 1

UNITED STAT ISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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