Prince v. Coca Cola Bottling Co United Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

DWIGHT S. PRINCE CIVIL ACTION NO. 2:18-CV-1076

VERSUS JUDGE TERRY A. DOUGHTY

COCA-COLA BOTTLING COMPANY MAGISTRATE JUDGE KATHLEEN KAY

UNITED, INC.

RULING

Plaintiff Dwight S. Prince (“Prince”) brought this employment discrimination lawsuit

against Coca-Cola Bottling Company United, Inc. (“United”). Prince alleges that United

retaliated against him for making claims of discrimination under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §2000e-2, as amended (“Title VII”); discriminated against him on the basis of

an alleged disability, i.e., anxiety and social phobia, in violation of the Americans with

Disabilities Act, 42 U.S.C. §12101, et seq. (“ADA”); and discriminated against him on the basis

of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq.

(“ADEA”). Prince also makes a claim of invasion of privacy under Louisiana law.

Pending before the Court is United’s Motion for Summary Judgment on Prince’s

retaliation, age discrimination, disability discrimination, and invasion of privacy claims. [Doc.

No. 24]. United moves for dismissal of all Prince’s claims.

On January 23, 2020, Prince filed a Memorandum in Opposition to the Motion for

Summary Judgment [Doc. No. 26].

On January 28, 2020, Union filed a Reply Memorandum in support of its Motion for

Summary Judgment [Doc. No. 32].

For the following reasons, United’s Motion for Summary Judgment is GRANTED, and

Prince’s claims are DISMISSED WITH PREJUDICE.

I. FACTS

United is a bottler of Coca-Cola products with operations throughout the Southeastern

United States, and it is headquartered in Birmingham, Alabama. Prince became employed with

United in its Lake Charles facility on May 27, 1995, and his position in the last years of

employment was as a bulk merchandiser. [Doc. No. 24-6]. Merchandiser positions are in the

collective bargaining unit, so Prince was subject to the rules of the collective bargaining

agreement and the employee handbook. [Doc. No. 24-5, Prince Depo., pp. 26-27]. Prince

acknowledged that he had to abide by the rules in the handbook, but considered them “bullshit.”

Id. at pp. 27, 30.

In 2012, Prince was selected for a random drug screen, which came back positive for

prescription drugs, but he had a prescription, so he passed. [Doc. No. 24-6, Declaration of

Jennifer Gullo (“Gullo Dec.”), ¶ 5]. He received no adverse action because of the test. Id. Prince

acknowledges that he had several random drug screens during his employment, and other

employees were subjected to them as well. [Doc. No. 24-5]. However, Prince felt that the 2012

drug screen was not random because he had complained about another employee sleeping on the

job. Id.

After the 2012 drug screen, Prince began to regularly question United management as to

why he was selected for the random drug screen. [Doc. No. 24-6, Gullo Depo., ¶¶ 7-9]. In

September 2012, Prince contacted Jennifer Gullo (“Gullo”), then-West Region Human

Resources Director,1 about the drug test. Id. at ¶ 7. He advised Gullo that he was getting strange

1Gullo is now Talent Acquisition Director for United. [Doc. No. 24-6, Gullo Dec., ¶ 2].

looks from employees and others in the marketplace. Id. Prince also complained that his

medical information had been disclosed to others, including Human Resources. Gullo agreed to

investigate the matter. Gullo obtained information from the third-party company that administers

the random testing program and confirmed the selection was, in fact, random. She also

interviewed Human Resources personnel in Lake Charles to see if anyone had obtained any

information about Prince’s medical situation from the drug testing company or the medical

review officer. Based on her investigation, Gullo found no information corroborating Prince’s

claims. Id. She spoke with Prince and provided him the documents showing that the drug screen

was, in fact, random. [Doc. No. 24-5]. Prince disagreed. Gullo also told him that no one from

Human Resources obtained or disclosed any medical information as a result of the drug test.

[Doc. No. 24-6, Gullo Depo., ¶ 7].

Prince continued to complain to Human Resources about the drug test and alleged

disclosure of medical information. Gullo spoke with Prince on several occasions and advised him

that there was no information to support his beliefs. Prince also called Debbie Myles (“Myles”),

Vice President of Human Resources, and Claude Nielsen, Chief Executive Officer, both of

whom are based in Birmingham, to register complaints. He also met with Paul Favaron, Division

Vice President; Gullo; and the Union steward to discuss his complaints. During this meeting, a

representative from the drug testing company was present via conference call to explain the

random process and answer any of Prince’s questions. Id. at ¶ 10.

In May of 2014, Prince confronted Eric Couvillion (“Couvillion”), a co-worker,

complaining that Couvillion’s girlfriend had disclosed his medical information, and told

Couvillion that it would be in the girlfriend’s best interest “to keep her fucking mouth shut.” Id.

at ¶ 11. Couvillion was troubled by this exchange and no longer felt comfortable around Prince.

Statements were taken, but there was no corroboration of Prince’s claims that people were

talking about him behind his back. As a result of this incident, Prince was given a warning on

June 5, 2014, and he was told that there was no information supporting his claims. He was told at

this meeting that continued accusatory, erratic behavior would lead to discipline. Due to concern

over Prince’s actions, Gullo contacted United’s employee assistance program (“EAP”) to discuss

Prince’s behavior. United management agreed that Prince would undergo a mandatory referral to

the EAP. Prince attended the EAP sessions and had favorable evaluations. He continued working

while in the EAP sessions. Id.

On September 14, 2016, Prince filed a charge with the Equal Employment Opportunity

Commission (“EEOC”), wherein he alleged race discrimination and retaliation: “[o]n June 1,

2016, Claude Nielsen, Chairman of Board of Directors, stole my audio recorder and I believe he

told the company employees that I was recording them, creating a hostile work environment. I

was recording company employees because of the previous retaliation I’ve experienced from the

company…” [Doc. No. 24-6, Exh. 7].

Prior to filing the EEOC charge, Prince had not made any complaints of this nature to

United. [Doc. No. 24-6, Gullo Dec., ¶ 14]. Prince then made the same claim to Pamela

Harrington (“Harrington”), Employee Relations Manager; Harrington reported it to Gullo. Gullo

called Prince and asked him about it. Prince told her that Nielsen had taken his recorder. Gullo

spoke with Myles, who, in turn, spoke with Nielsen, about the allegedly stolen recorder. Gullo

was told that there was no truth to the allegations. Prince believed that Nielsen told people that

Prince was recording him, and he asserted from this point until his termination that he was

harassed as a result. Prince even reported his stolen recorder to police, whom he believed were

“full of junk.” [Doc. No. 24-5, Prince Depo., pp. 104-105].

On June 12, 2017, Prince filed another EEOC charge alleging race discrimination and

retaliation. He alleged: “[o]n April 15, 2017, Claude Nielsen, Chairman of Board of Directors,

and Pamela Harrington, Human Resource Representative, are the ones responsible for releasing

information stating that I had said that Ken Francois (sic) issued a death threat. It basically

makes me a person no one wants to be associated with. They are upset that I filed a previous

charge and they want me to quit.” [Doc. No. 24-6, Exh. 11].

On or about October 11, 2017, Derek Bellard (“Bellard”) (Prince’s immediate

supervisor), Harrington, and Prince met to discuss Prince’s performance. [Doc. No. 24-6, Exh.

8]. Bellard spoke to Prince about some issues with merchandising and rotation of company

product, and he told Prince that he was not meeting his workload expectations. Prince responded

to the issues by saying, “[f]ind a merchandiser that can work a store correctly under the same

circumstances that I have to work under, and if you don’t like what I’m doing then fire me, and I

will see you in court.” Id. at p. 18. Prince walked out of the meeting, and Harrington followed

him to inquire about the comment he made to Bellard. Prince stated that United was releasing his

personal information to others, but United was trying to cover it up. He also said, “other

employees would resort to violence but because I am a strong person physically and mentally I

don’t.” Id. He went on to say that other vendors were making comments to him because United

told these vendors that Prince had been recording them. Prince refused to give specifics about

these comments, but he advised that he wanted to speak to Susanne Hall, the West Region Vice

President. Prince also asked Harrington if the company was in possession of his personal

belongings, i.e., his tape recorder. Harrington advised Prince that she was not aware that the

company had any of his personal belongings.

On December 1, 2017, Prince sent an email to The Coca-Cola Company in Atlanta,

Georgia. There is no ownership or corporate relationship between United and The Coca-Cola

Company. In the email, Prince stated:

I have worked for coco cola for twenty two years but the last five years I have

been harassed and threaten. Coca cola united has released medical information

about me to company employees such as miller lite, pepsi employees. Coca cola

has stolen an auto recorder which was being used to record the harassment. there

are many other incident of racial harassment. I have spoken to claude nelsen

chairman of the board of directors about this but the harassment has continued. I

would like an investigation from coca cola usa.

Id.

Hall and others met with Prince in Lake Charles on December 20, 2017. In attendance

were Prince, Gullo, Hall, John Miller (Division Director), Joseph Lenini (Security Manager), and

Doug Smith (Union Representative). [Doc. No. 24-6, Gullo Dec., ¶ 15]. Hall asked Prince to

explain the reason for requesting the meeting. He stated that five years before, he was

inappropriately asked to take a drug test. Prince said that he had been targeted and harassed.

Prince was asked specific questions about the targeting and harassment but refused to disclose

any information regarding witnesses, dates, or details of the alleged incidents. Prince also

asserted at this meeting that he wanted United personnel as well as personnel from the drug

testing company to take a polygraph examination in order to prove his allegations. He was told

that United does not engage in polygraph testing of its employees. Prince insisted that an

independent investigator should be called in to investigate his allegations and for the witnesses to

be polygraphed. Prince also advised that he had contacted the authorities to request a criminal

investigation into the theft of his tape recorder. Throughout this meeting, Prince presented no

new information or allegations or provided any information regarding inappropriate or unlawful

behavior that could be investigated. Prince also brought up the fact that he was referred to the

EAP, to which Gullo responded that the company had been and was concerned about him. Id.

Prince was told that he continuously refused to accept any answers previously provided

him, and he could not accept that no one had been sharing his personal medical information. He

was further advised that the company did not access his medical information. Prince was told

that these ongoing suspicions and unfounded complaints were detracting from the company’s

business, and there was no need to discuss these matters any further. Hall asked Prince if he was

clear about her message and direction, to which he replied that he was. He then asked about the

possibility of taking a sabbatical. He was told that he would be free to do so if that were what he

wanted. Gullo walked Prince out of the meeting and told him that he was still eligible for free

sessions with the EAP if he so chose. Id.

Between the months of December 2017 to January 2018, Prince sent a number of

accusatory emails to The Coca-Cola Company. One of the emails discussed the specifics of the

meeting Prince had with United personnel on December 20, 2017.2 The emails also included

accusations of harassment and theft on United’s part.3 The final email enclosed more accusations

2 I endured a meeting with these clowns, and there was a discussion about extortion.

coca-cola company should be interested in what was said. I now know Coca-Cola

company is siding with theses racist criminals in the hr department of coca-cola

united and that is disappointing. the coca-cola company will be forever changed, for

you see I have become a soldier for civil rights. If I bow down to these racist

criminals what will be said about me. The Coca-Cola company has sided with

criminals, what will be said about you.

Id. at p. 20.

3 There was a recorder stolen from me. Coca-Cola united is responsible for this crime.

This recorder contains information related to the harassment. Lake charles police has

been notified of this crime. If coke united sent this recorder to the Coca-Cola

company, I want this recorder returned to me immediately.

Id. at p. 21

as well as threatening language.4 For example, Prince stated, “let me say this I have had enough.

If you keep pushing me I will push back. I Dwight Price have absorbed all of the bullets of

harassment, I have not shot back once. I will no longer be a punching bag. There is something

you people don’t understand, if I receive no justice, well then I Will give no quarter, before my

heart stops beating I will have vengeance and the world will know what you the coca-cola

company has done.” Id. at p. 22. Finally, Prince again demanded the return of his allegedly

stolen tape recorder.5 Id.

After reviewing these emails, Hall, Gullo, Miller, Lentini, and Myles conferred and

decided to discharge Prince on the basis that his unfounded allegations of disclosure of medical

information, theft of his tape recorder, and his continually raising these issues after being advised

that the matter had been closed constituted insubordination. [Doc. No. 24-6]. Further, they also

4 I had a meeting with violent criminals at united. These scumbags were trying to find

out what I know about there criminal activity. the interesting thing is they lied when I

asked them questions and refused to take a lie detector. there were some things I said

during this meeting, which was repeated to another company. that is collusion

between two separate companies. there was one incident where if I wasn’t the man I

am, there could have been a fight in a store. So do me a favor, don’t give information

to other companies about me, the legal responsibility is now on the Coca-Cola

company and i mean the civil and the criminal responsibility. Thank you…coca-cola

company is taking the side of racist criminals.

Id. at p. 21.

5I have one thing my recorder needs to be returned no later than 1-15-18. United told

me on 12-20-17 everything was sent to coca-cola company. if coca-cola company

doesn’t return my recorder I will pay a visit to the thief that gave this stolen recorder

to the hr department of united. However, I can get him to make a confession but I fear

when I confront this thief he may become violent. So to keep everyone safe return my

recorder. Like I said the civil and the criminal responsibility is on the coca-cola

company. I have had enough.

Id. at p. 22.

determined that he had engaged in threatening, false, offensive, malicious, and intimidating

conduct, in violation of United’s personal conduct policy. Id.

On April 26, 2018, Prince filed another EEOC charge, this time alleging retaliation, age

discrimination, and disability discrimination. [Doc. No. 24-6, Exh. 12]. He alleged:

On January 20, 2018[,] I was discharged by [Derek] Bellard would call me and

tell me that I did not build a display correctly. In October 2017, I was brought

into the office and told this was my last chance. On December 22, 2017, I

requested that Suzanne Hall and John Miller take a lie detector test after my

recorder went missing. I previously forwarded the email to the parent company

re: harassment but Suzanne and John denied everything. On January 10, 2018, I

was called into the office by John Miller and Doug Smith. Miller read some

things and told me I was terminated for violation of company rules. I was

replaced by a guy in his twenties. The company did not accommodate me re: my

disability [sic] specifically they should have held more private meetings. . . I

believe I have been discriminated against based on my age (42), my disability and

retaliated against in violation of the [ADEA] and the [ADA].

Id.

On May 21, 2018, Prince filed a charge with the National Labor Relations Board, this

time claiming he was terminated because he engaged in protected, concerted, union activities.

[Doc. No. 24-6, Exh. 13].

On May 23, 2018, the EEOC issued a Notice of Right to Sue to Prince on Charge No.

461-2018-00864. He timely filed suit on August 20, 2018. Prince asserts that his termination

constituted retaliation in violation of Title VII, age discrimination in violation of the ADEA, and

disability discrimination in violation of the ADA. Prince further asserts that United’s disclosure

of his medical condition to non-medical personnel constituted an invasion of privacy in violation

of the Louisiana Constitution, Art. I, § 5.

On December 30, 2018, United filed the instant Motion for Summary Judgment. The

motion is fully briefed, and the Court is prepared to rule.

II. LAW AND ANALYSIS

A. Standard of Review

Summary judgment “should be rendered if the pleadings, the discovery and disclosure of

materials on file, and any affidavits show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c)(2). The

moving party bears the initial burden of informing the court of the basis for its motion by

identifying portions of the record, which highlight the absence of genuine issues of material fact.

ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012)

(citing Celotex Crop. v. Catrett, 477 U.S. 317, 323 (1986)). A fact is “material” if proof of its

existence or nonexistence would affect the outcome of the lawsuit under applicable law in the

case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact

is “genuine” if the evidence is such that a reasonable fact finder could render a verdict for the

nonmoving party. Id.

If the moving party can meet the initial burden, the burden then shifts to the nonmoving

party to establish the existence of a genuine issue of material fact for trial. ACE Am. Ins. Co, 699

F.3d at 839. The nonmoving party must show more than “some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). In evaluating the evidence tendered by the parties, the Court must accept the evidence of

the nonmovant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at

255.

B. Title VII

United moves for summary judgment on Prince’s Title VII claims.

Title VII prohibits both discrimination and retaliation. With regard to discrimination, the

statute provides:

It shall be unlawful employment practice for an employer—to fail or refuse to

hire or to discharge any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color,

sex, or national origin.

42 U.S.C. §2000e (a)(1). With regard to retaliation, the statute provides:

It shall be unlawful employment practice for an employer to discriminate against

any of his employees…because he has opposed any practice made unlawful

employment practice by this subchapter, or because he has made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding,

or hearing under this subchapter.

42 U.S.C. §2000e-3(a).

1. Discrimination

In its initial Motion for Summary Judgment, United did not move for summary judgment

on a claim of race discrimination because, as it points out, no such claim was asserted in Prince’s

Complaint (nor did he raise a claim of discrimination on the basis of color, sex, national origin,

or any other protected category under Title VII). Inexplicably, however, in his opposition

memorandum, Prince asserts that he has raised a genuine issue of material fact for trial on his

race claim under Title VII.

“A claim which is not raised in the complaint but, rather, is raised only in response to a

motion for summary judgment is not properly before the court.” Cutrera v. Bd. of Sup'rs of

Louisiana State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (citing Fisher v. Metropolitan Life Ins.

Co., 895 F.2d 1073, 1078 (5th Cir.1990).

Even assuming arguendo that Prince’s Complaint can somehow be read to include such a

claim or that his opposition constitutes a motion to amend his Complaint to add such a claim,

Prince cannot succeed. District Courts must dismiss Title VII claims when a plaintiff has not

exhausted his administrative remedies. Fobbs v. Potter, 338 Fed. App’x. 359 (5th Cir. 2009);

Garrett v. Judson Ind. School Dist., 299 Fed. App’x. 337 (5th Cir. 2008). In Title VII cases,

exhaustion occurs when a plaintiff files a timely charge with the EEOC and receives a statutory

notice of right to sue. 42 U.S.C. §2000e-5(c). Generally, “[a] charge under [Title VII] shall be

filed within one hundred and eighty days after the alleged unlawful employment practice

occurred[.]” 42 U.S.C. § 2000e–5(e)(1). However, in a deferral state,6 such as Louisiana, the

“time period is extended to 300 days.” See Conner v. Louisiana Dep't of Health & Hospitals,

247 Fed. App’x. 480, 481 (5th Cir.2007). Title VII further provides that claimants have ninety

days to file a civil action after their receipt of the right to sue. Taylor v. Books A Million, Inc.,

296 F.3d 376, 379 (5th Cir. 2002) (citing Nilsen v. City of Moss Point, Miss., 674 F.2d 379, 381

(5th Cir. 1982) (citing 42 U.S.C. § 2000e–5(f)(1) (1994)). The “requirement to file a lawsuit

within the ninety-day limitation period is strictly construed.” Id. (citing Ringgold v. National

Maintenance Corp., 796 F.2d 769, 770 (5th Cir.1986); Espinoza v. Missouri Pacific R.R. Co.,

754 F.2d 1247, 1251 (5th Cir. 1985)).

In this case, Prince’s April 26, 2018 EEOC charge is the only charge filed within 300

days after his termination, the employment action about which he complains. Prince claims that

his termination was in violation of Title VII’s retaliation provision “because he makes claims of

discrimination.” [Doc. No. 24-4 at p. 10]. Nowhere in that charge does he assert a claim of race

discrimination. Therefore, he has failed to exhaust his administrative remedies, and any claim of

race discrimination must be dismissed. Alternatively, if Prince sought to amend his Complaint to

add such a claim, such a motion would be denied as futile in light of his failure to exhaust his

6“A deferral state is one in which state law prohibits discrimination in employment and a state agency has

been established to grant or seek relief for such discriminatory practice. Clark v. Resistoflex Co., 854 F.2d 762, 765

n. 1 (5th Cir. 1988). The Louisiana Commission on Human Rights is such an agency.

administrative remedies. Finally, to the extent that Prince filed two earlier EEOC charges in

which he asserted claims of race discrimination, those charges did not address his termination,

the employment action about which he now complains. Further, he has offered no evidence that

he filed suit within ninety (90) days of the date he received notices of right to sue on the earlier

charges. Therefore, United’s Motion for Summary Judgment is GRANTED as to any race

discrimination claim under Title VII.

2. Retaliation

United also moves for summary judgment on Prince’s Title VII retaliation claim,

contending that he failed to exhaust his administrative remedies. Alternatively, United argues

that Prince failed to make out a prima facie case of retaliation and that, even if he could, United

has offered legitimate, non-retaliatory reasons for his termination.

While Prince filed three EEOC charges, only the last was filed after the termination

about which he complains. Thus, to the extent he contends that such termination was retaliation

under Title VII, he must have exhausted his administrative remedies with regard to that claim.

Defendant asserts that any retaliation claims under Title VII must be dismissed because Prince’s

April 26, 2018 EEOC charge makes no reference to Title VII or any retaliation claims under it;

therefore, Prince would not have exhausted the administrative remedies necessary for a Title VII

claim. Rather, Prince claims he was retaliated against in violation of ADEA and the ADA.

The Court agrees. A fair reading of his Charge shows that a claim of Title VII retaliation

cannot have reasonably been expected “to grow out of the charge of discrimination.” Sanchez v.

Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970); see also Fellows v. Universal

Restaurants, Inc., 701 F.2d 447, 450–51 (5th Cir. 1983) (Reading Sanchez and Gamble v.

Birmingham So. R.R. Co., 514 F.2d 678 (5th Cir. 1975), to hold “that a cause of action for Title

VII employment discrimination [or retaliation] may be based, not only upon the specific

complaints made by the employee's initial EEOC charge, but also upon any kind of

discrimination like or related to the charge's allegations, limited only by the scope of the EEOC

investigation that could reasonably be expected to grow out of the initial charges of

discrimination.”). Prince never mentions Title VII or any facts to support a claim that he was

retaliated against for engaging in Title VII-protected activity. On this basis alone, United is

entitled to summary judgment on his Title VII retaliation claim.

Alternatively, even if his earlier EEOC charges can somehow be read with his last, timely

charge, he has failed to raise a genuine issue of material fact for trial on his Title VII retaliation

claim. In this case, Prince has presented no direct evidence that retaliation motivated

Defendant’s decision to terminate him. To the extent that he relies on circumstantial evidence of

retaliation, he must first establish a prima facie by showing that: (1) he participated in an activity

protected under the statute; (2) the employer took an adverse employment action; and (3) a

causal connection exists between the protected activity and the adverse action. Feist v. La. Dept.

of Justice, 739 F.3d 450, 454 (5th Cir. 2013).

It is clear that Prince previously filed two EEOC charges, at least ostensibly raising race

discrimination. Even if his activity was protected, however, Prince also had to show a causal

connection between his EEOC charges and his termination.

A plaintiff may sometime rely on timing to establish the causal connection for a prima

facie case. In order to do so, the Supreme Court has recognized that there must be a “very close

temporal proximity between knowledge of a protected activity and an adverse employment

action,” explaining that even a three-month period between protected activity and adverse action

was too attenuated to support a retaliation claim. Clark County School District v. Breeden, 552

U.S. 268, 273 (2001). The Fifth Circuit has held that a five-month lapse is not close enough to

establish a retaliation claim. Raggs v. Mississippi Power and Light Co., 278 F.3d 463, 472 (5th

Cir. 2002).

In this case, Prince filed his first EEOC charge claiming race discrimination and

retaliation on September 14, 2016, approximately sixteen months before he was discharged. His

second charge, also claiming race discrimination and retaliation, was filed on June 12, 2017,

approximately seven months before his discharge. Even if as Prince alleges, the 2017 EEOC

Charge was not closed until four months before his termination, this temporal proximity alone is

insufficient to establish the necessary causal connection.

Prince having failed to exhaust his administrative remedies with regard to this Title VII

retaliation claim7 and, alternatively, having failed to establish a prima facie case, United’s

Motion for Summary Judgment on Prince’s Title VII retaliation claim is GRANTED, and this

claim is also DISMISSED WITH PREJUDICE.

C. Age Discrimination

United also moves for summary judgment on Prince’s claim that his termination was

discrimination based on age in violation of the ADEA.

Under the ADEA, employers cannot “discharge any individual… because of such

individual’s age.” 29 U.S.C. § 621.

29 U.S.C. § 621 addresses age discrimination in employment and states in pertinent part:

The Congress hereby declares that—in the face of rising productivity and

affluence, older workers find themselves disadvantaged in their efforts to retain

employment, and especially to regain employment when displaced from jobs; the

setting of arbitrary age limits regardless of potential for job performance has

become a common practice, and certain otherwise desirable practices may work to

7United moves for summary judgment on Prince’s retaliation claims under the ADA and ADEA as well.

However, there are no such claims asserted in Prince’s Complaint. Therefore, the Court need not address these

arguments.

the disadvantage of older persons; the incident of unemployment… is… high

among older workers… It is therefore the purpose of this chapter to promote

employment of older persons based on their ability rather than age; to prohibit

arbitrary age discrimination in employment; to help employers and workers find

ways of meeting problems arising from the impact of age on employment.

29 U.S.C § 621.

In order to establish an ADEA claim, Prince must show that his age was the “but-for”

cause for his employer terminating him; “proving that age was the ‘motivating factor’ for the

decision is not enough.” McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d

447, 455 (5th Cir. 2019); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180, 129 (2009); see also

Moss v. BMC Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010). A plaintiff may prove this with

direct or indirect evidence. Id. Direct evidence proves the fact without inferences or presumption

and often presents itself in the form of a discriminatory statement that directly coincides with the

plaintiff’s termination. Id. If the plaintiff cannot produce direct evidence, then he may rely on

indirect evidence, which must be proven by the burden-shifting framework from McDonnell

Douglas Corp. v. Green, 409 U.S. 792 (1972).

The burden-shifting framework, or the allocation of proof test, is applied as such. First, a

plaintiff must establish a prima facie case of discrimination. To establish a prima facie case, a

plaintiff must establish that he: (1) is a member of a protected class, (2) is qualified for the

position in question, (3) suffered an adverse employment action, and (4) has been replaced by a

person not a member of the protected class or otherwise treated differently on account of his

class. See Okoye v. Univ. or Texas Health Sciences Center, 245 F.3d 507, 510 (5th Cir. 2001);

Myers v. Dallas Independent School District, 2006 WL 3407828 (5th Cir. 2006). The employer

may rebut the prima facie case by articulating a legitimate, non-discriminatory reason for its

actions. Id. Thus, if a prima facie case is made, and the employer provides a legitimate

explanation, then the plaintiff must prove by a preponderance of the evidence that the legitimate

reasons offered by the employer were not the true reasons but were a pretext for discrimination.

“On summary judgment [in the context of employment discrimination], the plaintiff must

substantiate his claim of pretext through evidence demonstrating that discrimination lay at the

heart of the employer’s decision.” Price v. Federal Express Corp., 283 F.3d 715, 719-20 (5th

Cir. 2002). In other words, “it is not enough… to disbelieve the employer; the fact finder must

believe the plaintiff’s explanation of intentional discrimination.” Reeves, 530 U.S. 146 (quoting

St. Mary’s Honor Center, 509 U.S. at 519). To withstand summary judgment, “the plaintiff must

produce substantial evidence of pretext.” Auguster v. Vermilion Parish School Board, 249 F.3d

400, 402-03 (5th Cir. 2001); see also Price, 283 F.3d at 723-25.

In this case, United moves for summary judgment on the bases that Prince has failed to

meet his burden of proof on an age discrimination claim because Prince has no direct evidence

that he was terminated on the basis of his age, and he cannot establish a prima facie case in order

to present indirect evidence. Specifically, as to the fourth prong of the prima facie case, United

contends that Prince cannot establish that he was replaced by someone younger or that he was

treated differently from similarly situated individuals under nearly identical circumstances.

United has presented undisputed evidence that Prince was replaced by Joseph Frazier,

who was forty-three years old when he was hired on February 26, 2018. [Doc. No. 24-6, Gullo

Dec., ¶24]. His date of birth is August 24, 1974, and Prince’s date of birth is September 14,

1975, making Frazier more than a year older than Prince. Id.

Additionally, Prince failed to adduce any evidence that he was treated differently from

someone younger in nearly identical circumstances. Prince instead dedicates his memorandum

to disputing the veracity and integrity of United’s investigation into his complaints. Such alleged

evidence fails to establish his prima facie burden. When asked in his deposition if he was aware

of any age discrimination, Prince responded, “I don’t know. I don’t know. I have no idea.”

[Doc. No. 24-5 Prince Depo., p. 31].

Under these circumstances, Prince has failed to raise a genuine issue of material fact for

trial, and United’s Motion for Summary Judgment on his age discrimination claim is also

GRANTED.

D. Disability Discrimination

United also moves for summary judgment on Prince’s claim that he was unlawfully

terminated in violation of the ADA.

Under the ADA, “No covered entity shall discriminate against a qualified individual on

the basis of disability in regard to… discharge of employees.” 42 U.S.C. § 12112.

42 U.S.C § 12102 defines disability as:

…a physical or mental impairment that substantially limits one or more

major life activities of such individual’s record of such impairment; or being

regarded as having such an impairment… an individual meets the requirements of

being “regarded as having such an impairment” if the individual establishes that

he or she has been subjected to an action prohibited under this chapter because of

an actual or perceived physical or mental impairment whether or not the

impairment limits or is perceived to limit a major life activity.

42 U.S.C. § 12102.

In his Complaint, Prince alleges that he was terminated “because of his disability.” [Doc.

No. 1, ¶ 19]. However, in his Opposition, Prince clarifies that he believes United “perceived” or

regarded him as disabled because “he had a medical condition that which was disclosed after his

drug testing.” [Doc. No. 26, p. 2].

A plaintiff fails to exhaust his administrative remedies with respect to a regarded as claim

if he makes no reference to such a claim in his EEOC charge. See Silva v. Cherthoff, 512

F.Supp.2d 792, 819-20 (W.D. Tex. 2007) (granting summary judgment when nothing in charge

indicated that employer misperceived nature of plaintiff’s condition or ability to engage in major life

activities); Cadely v. New York City Dept of Transp., 2008 WL 465199, *10 (S.D.N.Y. 2008) (where

nothing in the EEOC charge provided the agency with notice to investigate discrimination on the

basis of the employer’s inaccurate perception of the plaintiff’s condition, the court lacked jurisdiction

to hear the plaintiff’s “regarded as” or “record of” claims); Kear v. Bd. of Cnty. Comm’rs of

Sedgwick Cnty., Kan., 491 F.Supp.2d 1052, 1055 (D. Kan. 2007) (holding that the plaintiff had not

exhausted administrative remedies with respect to her “regarded as” claim where her EEOC charge

stated only “I am disabled”).

In this case, Prince’s EEOC Charge alleges only that United “did not accommodate me re:

my disability” because “they should have held more private meetings.” [Doc. No. 24-6, Exh. 12].

Prince has produced no evidence that a claim that he was regarded as disabled was presented to the

EEOC or arose out of the scope of its investigation, so that United was on actual notice of such a

claim. Thus, Prince failed to exhaust his administrative remedies as to any claim that he was

terminated because he was regarded as disabled.

Moreover, even if, given his multiple filings with the EEOC, United had actual notice of the

claim that he was regarded as disabled, he has failed to make out a prima facie case. A plaintiff must

demonstrate that: (1) he was actually or regarded as disabled; (2) he was qualified for the job; (3) an

adverse employment action was taken against him; and (4) that he was replaced by or treated less

favorably than non-disabled employees. Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001); EEOC

v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014); see also McInnis v. Alamo Cnty, Coll. Dist.,

207 F.3d 276, 279080 (5th Cir. 2000).

Other than unsubstantiated speculation, Prince has produced no evidence to connect his

termination to a disability or regarded as disability. In Prince’s opposition to the motion for

summary judgment, he alleges discrimination “…for disability as the company apparently

perceived that he had a medical condition which was disclosed after his drug testing.” [Doc. No.

26, p. 2]. However, this is the only mention Prince makes of any alleged disability discrimination

in the entire memorandum. Prince has not produced any affidavits, pointed to deposition

testimony, or provided any other proof establishing that he was disabled or regarded as disabled

under the ADA. Prince has failed to produce any evidence establishing that his employer had any

knowledge of a disability, aside from the fact that Prince failed a drug test because of prescribed

medication that he was taking. Prince did state in his deposition that he had anxiety and/or social

phobia, but he did not elaborate on how or whether United was aware of this alleged condition

and regarded him as disabled as a result. Nor did he offer evidence to show that this condition

constituted an actual disability for which he was terminated.

Prince has not met his burden of proof. He has not established a prima facie case tending

to show that he was disabled or that his employer had knowledge of his disability. Prince has

established no evidence that his termination had any causal link to his alleged disability. Prince

never disclosed to Defendant that he suffered from anxiety or social phobia. There is no proof

that any action by Prince would have allowed Defendant to establish the knowledge necessary

for a claim such as this one. Without any knowledge of Prince’s disability, Defendant could not

have formed the necessary basis for any discharge decision under an ADA claim. Even if Prince

could prove that Defendant had knowledge of the disability, Prince has no proof indicating any

alleged disability motivated Defendant’s decision to discharge him. Accordingly, United’s

Motion for Summary Judgment on Prince’s disability discrimination claim under the ADA is

also GRANTED.8

8Prince spends most of his time arguing that United’s investigation was incorrect or incomplete, or that its

decisions or findings were wrong. However, it is not the role of the Court to sit as a super-personnel agency to

review United’s employment decisions. It is the role of the Court to determine if Prince raised a genuine issue of

material fact for trial as to whether United’s termination of him was based on improper considerations.

E. Invasion of Privacy under Louisiana Constitution, Art. I, § 5

Finally, United moves for summary judgment on Prince’s state law claim of invasion of

privacy.

Under the Louisiana Constitution of 1974, Art. I, § 5, Louisiana law recognizes an

individual’s right to privacy. Violation of such is actionable in tort and is subject to a one-year

prescriptive period. LA. CIV. CODE. ART. 3492; Harvill v. Arnold, 777 So.2d 1271 (La App. 2nd

Cir. 2001). Louisiana Law recognizes four viable privacy interests: (1) unreasonable

appropriation of an individual’s name or likeness for a defendant’s benefit; (2) a defendant’s

unreasonable intrusion upon a plaintiff’s physical solitude or seclusion; (3) publicity which

unreasonably places plaintiff in a false light before the public; and (4) unreasonable public

disclosure of embarrassing private facts. Juabert v. Crowley Post Signal, 375 So.2d 1386, 1388

(La. 1979).

United moves for summary judgment on this claim because Prince’s invasion of privacy

claim is based on the knowledge the company allegedly gained in 2012 because of his random

drug test. Additionally, Prince testified that United found out about his medications during his

treatment with EAP in 2014. Viewing these events in the light most favorable to Prince,

however, any potential invasion of privacy occurred more than a year before he filed suit on

August 20, 2018.

Further, Prince has provided no evidence that this or any other private information was

disclosed within one year of the filing of the lawsuit. In fact, Prince cannot even establish that

anyone at United disclosed any private information about his medical condition. Aside from

inadmissible hearsay, Prince has provided no evidence identifying who at United received any of

his medical information from a physician in 2012 or who disclosed it. Prince also admitted that

he has no information that United disclosed any information from the EAP to anyone.

Defendant’s Motion for Summary Judgment on Prince’s invasion of privacy claim is also

GRANTED, and this claim is DISMISSED WITH PREJUDICE.

Wl. CONCLUSION

For the foregoing reasons, United’s Motion for Summary Judgment is GRANTED, and

Prince’s claims are DISMISSED WITH PREJUDICE.

MONROE, LOUISIANA, the 18" day of March, 2020.

l. A TA

UNITED STATES DISTRICT JUDGE

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