# Hudson v. Louisiana State Board of Elementary and Secondary Education (BESE)

> District Court, M.D. Louisiana · March 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10192619

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** March 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MARY HUDSON CIVIL ACTION
VERSUS
LOUISIANA STATE BOARD OF NO. 20-00551-BAJ-RLB
ELEMENTARY AND SECONDARY
EDUCATION, ET AL.
RULING AND ORDER
This is an employment discrimination case. Plaintiff alleges that Defendants
Louisiana Department of Education (LDOE),! Louisiana State Board of Elementary
and Secondary Education (BESE), and Principal Melanie Brenckle terminated her
employment based on her age (over 40 years old), retaliated against her for filing a
charge of discrimination with the Equal Employment Opportunity Commission
(EEOC), and retaliated against her for whistleblowing.? (See Doc. 1-1 at pp. 6—10;
Doc. 26 at p. 4).

1 At the time of filing, Plaintiffs claims against the LDOE were directed at the Louisiana
School for the Visually Impaired (LSVI) and the Louisiana Special School District (SSD). In
Defendants’ Memorandum supporting this Motion, Defendants argue that the LSVI and the
SSD are not juridical entities and cannot be sued. (See Doc. 20 at pp. 8-10). Recognizing her
mistake, Plaintiff filed a Motion asking the Court to substitute the LDOE as the proper
Defendant for her claims against the LSVI and the SSD. The Magistrate Judge granted her
motion on October 25, 2022.
2 Initially, Plaintiffs claims were more wide-ranging. Now, however, Plaintiff concedes that
“the Parties have narrowed the issues in her case to three main claims: 1) she was
discriminated against based on her age when she was terminated; 2) she was retaliated
against because she complained to the EEOC of her age discrimination; and 3) she was
retaliated against because she blew the whistle on the ethical and criminal culture

Now before the Court is a Motion for Summary Judgment (Doc. 17) by all
Defendants, which argues that Plaintiffs action must be dismissed because her
claims are barred by sovereign immunity, qualified immunity, and fail as a matter of
law. (See Doc. 20 at pp. 4, 5, 11, 12). Plaintiff opposes Defendants’ Motion.’ (Doc. 26).
For the reasons stated herein, the Defendants’ Motion will be granted.
I. BACKGROUND
A. Summary Judgment Evidence
The following facts are drawn from the Defendants’ Statement Of Material
Facts In Support Of Motion For Summary Judgment (Doc. 17-9, “DEF SOF’),
Plaintiffs Statement Of Material Facts Precluding Summary Judgment (Doc. 22-3,
“Hudson SOF”), and the record evidence submitted in support of these pleadings.
i. The Parties
Plaintiff is over the age of 40. (DEF SOF § 17). Principal Brenckle is under the
age of 40. (See Doc. 31 at p. 5). The Louisiana School for the Visually Impaired (LSVI)
is one of three schools operated by the Louisiana Special School District (SSD). (DEF
SOF § 1). SSD provides Human Resources services to LSVI and oversees LSVI’s
hiring. (DEF SOF {{f 1, 12, 21). BESE is the administrative body for all Louisiana
public and elementary schools and provides administrative oversight for LSVI. (DEF

predominating Louisiana’s Special School District. Plaintiff withdraws her retaliation claim
under Title 42 (Ethics Whistleblower).” (See Doc. 26 at p. 4).
3 As set forth in the Defendant’s Reply, Plaintiff filed her Opposition one hour past the filing
deadline. (See Doc. 29 at p. 1-2). Nonetheless, the Court will exercise its discretion to consider
her arguments.

SOF § 5). The Louisiana Department of Education (LDOE) operates LSVI and SSD
and provides their funding. (DEF SOF 9f 3, 4).
ii. Plaintiff's experiences at LSVI
In 2018, LSVI posted a job opening for the Assistant Principal position, but it
received few applications from qualified applicants. (DEF SOF 11). To assist with
the search, SSD compiled a list of possible candidates that included Plaintiffs name.
(DEF SOF §{ 12, 18). Principal Brenckle and Instructional Coach (“IC”) Susan
Covington interviewed Plaintiff and recommended to SSD’s_ Assistant
Superintendent (“AS”), Meredith Jordan, that Plaintiff be hired as Assistant
Principal. (DEF SOF §{ 16, 23). In December 2018, SSD sent Plaintiff a conditional
employment offer, and in January 2019, formally hired her. (DEF SOF ff 21, 23).
In February 2019, one month after she was hired, Plaintiff began complaining
to Principal Brenckle that “she was given busy work while [Principal Brenckle and
IC Covington] ran the school.” (DEF SOF 33). For example, Plaintiff claimed that
Principal Brenckle tasked her with inventory orders while IC Covington helped with
disciplinary, instructional, and curriculum decisions. (DEF SOF 128).
For Principal Brenckle’s part, she believed Plaintiff did not value the work she
was given or the importance of the work to LSVI. (DEF SOF § 87). She also disliked
that Plaintiff disagreed with her in front of LSVI staff members, because she wanted
LSVI’s administration to show a “unified front.” (DEF SOF § 44).
In May 2019, Plaintiff and Principal Brenckle initiated talks to determine if

Plaintiff was a good fit at LSVI. (DEF SOF { 55). During one conversation, Principal
Brenckle expressed that if Plaintiff disliked her as a leader and if Plaintiff was
unhappy working at LSVI, then LSVI might not be a good fit. See id. Plaintiff
reassured Principal Brenckle that she intended to continue working at LSVI.
However, the difficulties persisted. See id.
iii. Incident between Plaintiff and IC Covington
On May 29, 2019, Plaintiff, Principal Brenckle, and IC Covington interviewed
a candidate for a teaching position. During the interview, Plaintiff remarked to the
applicant that they should not be nervous because “we have even hired people who
have less training than you—T[people with] alternative certifications or something.”
(DEF SOF J 58). After the interview, IC Covington admonished Plaintiff because she
did not think her comment was professional in an interview, and Principal Brenckle
agreed. (DEF SOF 60, 61). As the conversation continued, Plaintiff perceived it as
a “lecture...on trust, respect, and being a team member.” (DEF SOF 63). Plaintiff
complained to Principal Brenckle that she did not feel like part of a team and felt
disrespected. (DEF SOF { 64). She also explained that she wanted to be a team
member, but “drew the line on lying, covering things up, and keeping secrets.” (DEF
SOF § 65). Principal Brenckle requested specific examples of this behavior, but
Plaintiff refused to provide any such details. (DEF SOF 66).4
Also during the meeting, Plaintiff questioned why IC Covington was still

4 Later, Plaintiff provided such examples to SSD leaders, as set forth below.

present for the discussion. (DEF SOF § 67). IC Covington answered that she was
giving Plaintiff feedback, and Plaintiff retorted, “keep it to yourself.” (DEF SOF 68).
The situation escalated between Plaintiff and IC Covington, resulting in IC
Covington alleging that she felt threatened by Plaintiff. (DEF SOF { 69). Plaintiff
denies acting in a threatening way. (DEF SOF { 70). Principal Brenckle ended the
meeting, and shortly thereafter, she informed Assistant Superintendent (“AS”)
Jordan about what transpired. (DEF SOF { 73, 74). AS Jordan instructed Principal
Brenckle to write a summary of the incident and any other previous incidents with
Plaintiff. (DEF SOF { 75). IC Covington also wrote a statement about the incident
and submitted her complaint to SSD’s Human Resources Director (“HRD”) Julie
Alcorn. (DEF SOF 4 79-83).
On May 30, 2019, Plaintiff contacted AS Jordan to request a meeting, and AS
Jordan scheduled the meeting with Plaintiff and invited HRD Alcorn and SSD’s
Director of Operations (“DOO”) Audrey Gaultier to attend. (DEF SOF § 87). During
this meeting, Plaintiff informed the group of the “lies and cover-ups” she alluded to
in her conversation with Principal Brenckle and IC Covington. (DEF SOF { 89).
However, she did not mention concerns about age discrimination or retaliation during
the meeting. (DEF SOF 91, 92). The group instructed Plaintiff to write a report
about the May 29 incident and the criminal and unethical activity she allegedly
observed at LSVI. (DEF SOF 4 90). They also instructed her to cease interaction with
IC Covington. (See Doc. 17-2 at p. 48).

iv. Alleged criminal and unethical activity at LSVI
In her report, Plaintiff identified several activities and examples of behavior at
LSVI that she considered to be forms of “lying,” “covering things up,” and “keeping
secrets.” (DEF SOF { 65). The Court will only mention the behavior relevant to
Plaintiffs claims.
First, Plaintiff accused Principal Brenckle of instructing her to tell a teacher
to change a student’s grade. (See Doc. 17-2 at p. 181). Second, Plaintiff alleged that
Principal Brenckle reprimanded her when she reported a student’s suicide threat to
a SSD official. (DEF SOF { 120). Third, Plaintiff described “payroll inconsistencies”
that she and another LSVI employee had observed. (DEF SOF § 121). Finally,
Plaintiff claimed that her “authority to act as an administrator was undermined and
thwarted.” (DEF SOF { 126). She also wrote that she felt disrespected and
undermined when Principal Brenckle tasked her with ordering office supplies but
tasked IC Covington with making disciplinary, instructional, and curricular
decisions. (DEF SOF ¥ 128).
v. Plaintiffs initial inquiry to the EEOC
On June 8, 2019, Plaintiff submitted her report to AS Jordan, HRD Alcorn, and
DOO Gaultier. (DEF SOF { 94). She also submitted an online inquiry to the EEOC
alleging retaliation. (See Doc. 26-2 at pp. 12, 21-25). In her inquiry, Plaintiff alleged
that she had “uncovered various illegal and dysfunctional activities at work and [was]
being targeted for dismissal.” (See Doc. 26-2 at p. 23). She further alleged, “a false

charge of threat was made against me as a way to target me for termination.”
Immediately after submitting her inquiry, Plaintiff emailed AS Jordan, HRD Alcorn,
and DOO Gaultier and wrote:
This morning I initiated a complaint with the EEOC. They will be
contacting Mrs. Alcorn for verification of employment. I did this because
I became aware that (false) statements were being solicited from
subordinates who had not initiated complaints on their own. While I
appreciate your trust in me to provide truthful statements and our open
and friendly meeting, I do not trust that my rights are being protected
at the school building level, so I contacted EEOC to protect my job, my
professional reputation and myself from the apparent retaliation that is
underway.
(DEF SOF 4142). Later that same day, AS Jordan replied and wrote, “Ms. Hudson,
Thank you for informing me of your decision.” (See Doc. 17-2 at p. 215). At this point,
Principal Brenckle was not informed that Plaintiff had contacted the EEOC. (DEF
SOF § 146-47).
vi. Incident between Plaintiff and a LSVI teacher
On June 4, 2019, Vicki McCarroll, a LSVI teacher, submitted a statement
accusing Plaintiff of bullying her over the course of the semester. (See Doc. 17-2 at p.
218). The statement also described an incident between Plaintiff and McCaroll that
had occurred prior to the May 29th incident between Plaintiff and IC Covington.5 (See
Doc. 17-1 at p. 27).
When asked about the incident during her deposition, Plaintiff accused IC
Covington and Principal Brenckle of “soliciting” the written statement from

5 The Parties did not provide the specific date of this incident.

McCaroll. (See Doc. 17-2 at p. 41). Plaintiff alleges that on the morning of June 3, she
saw IC Covington “going in and out” of McCaroll’s classroom. See id. When Plaintiff
went to the printer to pick up copies of documents, McCaroll’s statement was also
there. See id. This sequence of events was the impetus for Plaintiffs June 3rd inquiry
to the EEOC and the source of her allegation that false charges were being solicited
against her with the purpose of targeting her for termination. (See Doc. 17-2 at pp.
42—43). Plaintiff believed that after IC Covington made her complaint about the May
29th incident, she and Principal Brenckle were trying to “pull other stuff up.” See id.
vii. Plaintiffs termination
From approximately the end of June 2019 to mid-July 2019, Plaintiff went on
summer break. While she was away, Principal Brenckle, AS Jordan, and Jamie
Wong, LDOE’s Special Education Director, met to discuss anticipated budget cuts for
the upcoming year and the possible need to eliminate positions at LSVI. (DEF SOF
153). At this time, Principal Brenckle expressed she “did not feel like the assistant
principal position was currently being served to [the] best benefit [of] the school, and
[she] felt like it would be a better use of maintaining teacher positions to work directly
with the students.” See id. Principal Brenckle, AS Jordan, and Director Wong
collectively decided to eliminate Plaintiffs position and a then-vacant teacher
position. (See Doc. 39-1 at pp. 122, 126). When the group made their decision, they
did not have specific information that LSVI’s budget was in fact being cut. (See Doc.

39-1 at p. 124). Rather, the decision was made in anticipation of budget cuts and a
reduction in force. See id.
On July 15, 2019, Plaintiff returned to LSVI and “thought that things were
going to get better.” (See Doc. 17-2 at p. 43). However, Plaintiff claims that while other
leaders of LSVI were meeting to prepare for the fall semester, she was tasked with
preparing door signs. See id. On July 16, 2019, Plaintiff complained to HRD Alcorn
about her treatment. Shortly thereafter, HRD Alcorn emailed Director Wong, and the
two had the following exchange:
JULIE ALCORN: Good morning. Will you be at LSDVI today, if so I
have a few things that need your signature.
JAMIE WONG: Possibly this afternoon. Is it time sensitive?
JULIE ALCORN: Mary Hudson (LSVI Assistant Principal)
[termination] letter. | was preparing an email to you and [AS Jordan]
informing you that Dr. Hudson just came to my office stating that
Melanie is mistreating her the same way as she did before she left from
summer break, not including her in any decision making, etc. I can
change the [termination] letter date to tomorrow if you want.
JAMIE WONG: Can this wait until Thursday?
JULIE ALCORN: Yes, of course. I [will] talk with [AS Jordan] so she
can inform [Principal Brenckle].
(See Doc. 17-2 at pp. 223-24).
On July 18, 2019, Plaintiff was terminated. (DEF SOF § 157). Principal
Brenckle, HRD Alcorn, and a LSVI security officer came into Plaintiffs office and
read the termination letter to her:
Dear Ms. Hudson,

This is to inform you that you are being separated from your position as
Assistant Principal at the Special School District/Louisiana School for
the Deaf and Visually Impaired (LSDVI) effective July 18, 2019.

(See Doc. 17-2 at p. 43). When Plaintiff questioned why she was being terminated,
Principal Brenckle and HRD Alcorn did not give her a specific answer. According to
Plaintiff, they did not inform her she was being terminated due to anticipated budget
cuts. (See Doc. 17-2 at p. 44). However, they assured Plaintiff it was not for a
performance-related reason. (DEF SOF § 159). To date, Plaintiffs former position at
LSVI has not been reinstated. (DEF SOF 9 155).
viii. Plaintiff's EEOC Charge of Discrimination
On August 23, 2019, Plaintiff filed her first Charge of Discrimination with the
EEOC alleging age discrimination. (See Doc. 26-2 at p. 38). She did not make a
retaliation claim in this first filing. See id. In her Charge, Plaintiff wrote:
I began my employment with Louisiana School for the Visually Impaired
on January 24, 2019 as Assistant Principal, earning approximately
$69,000.00 per year. Around February 18, 2019, the principal, Ms.
Melanie Brenckle (age 32) started excluding me from assignments and
duties that should [sic] I should have been included on. These
assignments included grading policy meetings as well as developing the
school improvement plan. Instead, I was assigned to make door signs.
On July 30, 2019, I was discharged. The company employees between 15
to 100 employees. No reason was given for the action taken against me.
I have been discriminated against because of my age (57 years) in
violation of the Age Discrimination on [sic] Employment Act of 1967.
(See Doc. 26-2 at p. 38). On February 4, 2020, Plaintiff amended her Charge of
Discrimination and added:

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On Monday, June 3, 2019, I sent a complaint email to the attention of
Meredith Jordan (not in PAG), Asst. Supt; Audrey Gauthier (not in
PAG); and Julie Alcorn (late 60’s), Director of Human Resources. In the
email I informed them that I had “initiated a complaint with the
HEOC...to protect myself from retaliation” that I believed was already
underway.
(See Doc. 26-2 at p. 49). The EEOC investigated Plaintiffs allegations of age
discrimination and retaliation and ultimately was “unable to conclude that the
information obtained establishe[d] violations of the statutes.” (See Doc. 26-2 at p. 44).
On October 7, 2020, the EEOC dismissed Plaintiffs Charge and issued a Right to Sue
letter. See id.
B. Procedural History
Plaintiff initiated this action on July 16, 2020 in the 19th Judicial District
Court of the State of Louisiana, alleging, inter alia, that Defendants terminated her
based on her age, retaliated against her for filing a charge of discrimination with the
EEOC, and retaliated against her for whistleblowing, in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, the Louisiana
Employment Discrimination Law (LEDL), La. R. S. 23:301, et. seq., and the Louisiana
Whistleblower Statute (LWS), La. R.S. 23:967. (See Doc. 1-1 at pp. 6-10; Doc. 26 at p.
4). Defendants removed the case to this Court on August 26, 2020, and now move for
summary judgment. (Doc. 1; Doc. 17). Defendants argue that Plaintiffs action must
be dismissed because her claims are barred by sovereign immunity and fail as a
matter of law. (See Doc. 20 at pp. 4-5, 12, 31). Plaintiff opposes Defendants’ Motion.
(Doc. 27).

11

II. STANDARD OF REVIEW
Federal Rule of Civil Procedure (“Rule”) 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
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., 113
F.3d 528, 533 (5 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. Coll.,
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?
Shortstop, Inc. v. Rally’s, Inc., 939 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 (5 Cir. 1994). If the non-movant “fails to make a showing

12

sufficient to establish the existence of an element essential to that party’s case,”
summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Il. DISCUSSION
A. ADEA Claims
As their first defense to Plaintiffs ADEA claims, Defendants assert sovereign
immunity. (See Doc. 20 at p. 4). The Eleventh Amendment to the United States
Constitution bars a State from being sued in federal court by its own citizens, citizens
of other States, or foreign nations. See U.S. CONST. amend. XI. “Although by its terms
the Amendment applies only to suits against a State by citizens of another State, ...
the Amendment's applicability [has been extended] to suits by citizens against their
own States.” Cox v. City of Dallas, Tex., 256 F.3d 281, 307 (5th Cir. 2001) (citing Bd.
of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001)). As state
agencies, BESE and LDOE also “enjoy sovereign immunity” against exercises of
federal jurisdiction. Moore v. Louisiana Bd. of Elementary & Secondary Educ., 748
F.3d 959, 963-64 (5th Cir. 2014). The Eleventh Amendment bar to suits by private
citizens against a state in federal court is also extended to Principal Brenckle because
she is sued in her official capacity.6 See K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir.
2010).

6 Plaintiff also sued Principal Brenckle in her individual capacity pursuant to 42 U.S.C. §
1983 and Defendant moved for summary judgment as to that claim as well. (See Doc. 20 at
pp. 40-49). However, Plaintiff failed to brief, or even address, her § 1983 claim against
Principal Brenckle in her Opposition Memorandum. “[T]his Court has repeatedly

18

However, in Myers ex rel. Benzing v. Texas, the Fifth Circuit held that when
the State removes a case to federal court, it “voluntarily invoke[s] the jurisdiction of
the federal courts and waive[s] its immunity from suit in federal court.” 410 F.3d 236,
255 (5th Cir. 2005) (citing Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S.
613 (2002)). Accordingly, when Defendants removed Plaintiffs suit to this Court, they
voluntarily waived their immunity from suit in federal court. Whether Defendants
retain a separate immunity from liability is determined by Louisiana law. See Myers,
410 F.3d at 255.
“Under Louisiana law, two provisions of the Louisiana constitution govern
whether the [S]tate has waived sovereign immunity.” Pegues v. Bd. of Supervisors of
Louisiana State Univ. & Agric. & Mech. Coll., LSU Sch. of Dentistry & Fac. Dental
Prac., No. CV 18-2407, 2019 WL 15443866 *4 (E.D. La. Apr. 9, 2019) (citing Reed-
Salsberry v. State Through the Dep't of Pub. Safety & Corr., Youth Serus., Off. of Juv.
Just., 51,104 (La. App. 2 Cir. 2/15/17), 216 So. 3d 226, 229. Article 12, § 10(A) provides
that neither the State nor a state agency is immune from suit and liability in contract
or for injury to person or property. LA. CONST. art. 12, § 10(A) (emphasis added). But
article 1, § 26 of the Louisiana Constitution states that the people of Louisiana “have

admonished that it will not speculate on arguments that have not been advanced, or attempt
to develop arguments on a party's behalf.” Doe v. Bd. of Supervisors of Univ. of Louisiana
Sys., --- F.Supp.3d ----, 2023 WL 143171, at *17, n.1 (M.D. La. Jan. 10, 2023) (Jackson, J.).
Having failed to meaningfully respond to Defendants’ summary judgment arguments, the
Court determines that Plaintiff has voluntarily abandoned her § 1983 claim against Principal
Brenckle.

14

the sole and exclusive right of governing themselves as a free and sovereign state,”
and that this right cannot be delegated to Congress. LA. CONST. art. 1, § 26.
In Holliday v. Board of Supervisors of LSU Agricultural and Mechanical
College, the Louisiana Supreme Court analyzed these sections of the Louisiana
Constitution and held that the State had not waived its immunity from liability under
the Family and Medical Leave Act. 2014-0585 (La. 10/15/14), 149 So. 3d 227, 228-29.
The Holliday court reasoned that article 12, § 10(A) did not “waive or cede Louisiana's
sovereign immunity in the federal system to unlimited Congressional power over
State contracts.” Id.
Relying on Holliday, the Second Circuit Court of Appeal of Louisiana has held
that the State does not waive its sovereign immunity for purposes of the Americans
with Disabilities Act merely because it adopts provisions of the federal statute. See
generally Reed-Salsberry, 216 So. 3d 226, 230. Louisiana state courts have yet to
consider whether the State has waived its sovereign immunity for purposes of the
ADEA. Nevertheless, persuasive authority from the U.S. Court of Appeals for the
Fifth Circuit suggests that, if put to the test, Louisiana state courts would hold that
the State has not waived its sovereign immunity as to the ADEA:
The Louisiana Supreme Court has not answered the ADA question
specifically, but it has ruled that the state has not waived its immunity
for FMLA or unjust enrichment claims. The pattern of the court,
therefore, ts to limit the scope of the waiver [of sovereign immunity] to
traditional contract and tort suits.

15

fletcher v. Louisiana Dep't of Transportation & Dev., 19 F.4* 815, 818 (5th Cir. 2021)
(emphasis added). Heeding this authority, the Court determines that Plaintiffs
ADEA claims are also barred by the Eleventh Amendment.
Plaintiff, however, argues that by receiving “federal funds under Title XI [sic]
and under the Individuals with Disabilities Education Act [IDEA]...Defendants have
waived their Eleventh Amendment immunity, and they cannot now avoid the
consequences of their actions for their violations of the ADEA or § 1983.” (See Doc. 26
at p. 18). While it is true that a State may waive its immunity by voluntarily
participating in federal spending programs, merely receiving federal funds does not
establish a valid waiver. See Fields v. Dep't of Pub. Safety, 911 F. Supp. 2d 373, 379
(M.D. La. 2012). “Rather, such a waiver must be expressed in the language of the
statute.” Id.
Here, Plaintiff seeks to extend the waivers of sovereign immunity embedded
in Title [IX and IDEA to the ADEA and § 1983. (See Doc. 26 at p. 18) (citing 42 U.S.C.
§ 2000d-7; 20 U.S.C. § 1403). But this is inconsistent with the requirement that a
waiver be expressed in the language of the statute. Absent a statutory basis for doing
so, Title [IX and IDEA’s waivers of sovereign immunity cannot be extended to ADEA
and § 1988 claims. Consequently, the Court concludes that while Defendants have
waived their immunity from suit in this matter, pursuant to Louisiana law, they have
not waived their immunity from liability. In other words, by waiving their immunity
to suit, Defendants have waived any jurisdictional attacks on Plaintiffs claims. But

16

Defendants have not waived their immunity from liability for the harms they’ve
allegedly inflicted on Plaintiff.
Defendants’ immunity “serves as a bar to recovery of damages and injunctive
relief’ from claims asserted under ADEA. Fletcher v. Louisiana Dep't of
Transporation & Dev., No. CV 19-005938-BAJ-RLB, 2020 WL 6588593 *4 (M.D. La.
Nov. 10, 2020), aff'd sub nom Fletcher, 19 F.4th at 815. Accordingly, Plaintiffs ADEA
claims for age-based discrimination and retaliation must be dismissed with prejudice.
See Harris v. Louisiana Off. of Juv. Just., No. CV 18-18356, 2019 WL 2617175 *4
La. June 26, 2019) (“The Court's dismissal of plaintiffs federal claims on the
basis of defendant's immunity from liability is not jurisdictional and instead
constitutes an adjudication on the merits.”).
B. State law claims
Plaintiffs ADEA claims were her only federal claims. Having now dismissed
these claims, there is no basis to exercise federal question jurisdiction here, and the
Court must decide whether to retain jurisdiction over Plaintiffs’ pendant state law
claims. In making this determination, the Court “look[s] to the statutory factors set
forth by 28 U.S.C. § 1367(c), and to the common law factors of judicial economy,
convenience, fairness, and comity.” Enochs v. Lampasas Cty., 641 F.3d 155, 159 (5th
Cir. 2011). “When a court dismisses all federal claims before trial, the general rule is
to dismiss any pendent claims.” Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir.
1999).

17

Here, the relevant factors favor dismissing Plaintiffs state law claims. These
remaining claims raise issues best left to Louisiana state courts—specifically, the
scope of protection afforded by the Louisiana employment and whistleblower
statutes—and obviously predominate over the nonexistent federal claims. See
Enochs, 641 F.3d at 159. Moreover, fairness, and comity are each served by allowing
Louisiana’s courts to address Plaintiffs’ state law claims in the first instance. There
is no indication that either party will be prejudiced by a return to state court.
Furthermore, “comity demands that the important interests of federalism and comity
be respected by federal courts, which are courts of limited jurisdiction.” Enochs, 641
F.3d at 160. Thus, taken together, the statutory and common law factors weigh in
favor of dismissing Plaintiffs pendant claims. Accordingly, the Court will follow the
“general rule” and dismiss all of Plaintiffs’ state law claims, without prejudice. Bass,
180 F.8d at 246.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant's Motion for Summary Judgment (Doc.
20) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs age-based discrimination claim
under ADEA is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs retaliation claim under ADEA
is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that, because all federal claims have been
dismissed, the Court will decline to exercise supplemental jurisdiction over the
Plaintiffs remaining state law claims, which are hereby DISMISSED WITHOUT
PREJUDICE.
Judgment shall issue separately.
Baton Rouge, Louisiana, this 315, of March, 2023
JUDGE BRIAN A. Bas KSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192619. Public record. Not legal advice.