Opinion

Whitfield v. Pere Antoine, Inc.

Court
District Court, E.D. Louisiana
Filed
Jul 21, 2025
Cited by
0 cases
Authority
More cited than 38.1%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JACQUELINE WHITFIELD CIVIL ACTION

VERSUS CASE NO. 24-806

PERE ANTOINE, LLC SECTION: “G”

ORDER AND REASONS

This litigation involves an employment discrimination dispute.1 Before the Court is

Defendant Pere Antoine, LLC’s (“Defendant”) Motion for Summary Judgment.2 Defendant moves

for summary judgment on all claims raised by Plaintiff herein, arguing that (1) Plaintiff’s claims

under Title VII of the Civil Rights Act of 1964 (“Title VII”), Americans with Disabilities Act

(“ADA”), and denial of advancement are time barred; (2) Plaintiff’s claims under Title VII should

fail because Plaintiff did not exhaust her administrative remedies; and (3) Plaintiff cannot produce

competent summary judgment evidence to substantially support the claims raised in the

Complaint.3 For the reasons stated herein, the Court finds that Plaintiff’s claims under Title VII

and the ADA are untimely and must be dismissed. The Court further finds that Plaintiff has failed

to establish a prima facie case under the Equal Pay Act. Considering the motion, the opposition,

the reply memorandum, the record, and the applicable law, the Court grants the motion.

1 See Rec. Doc. 1.

2 Rec. Doc. 66.

3 Id.

I. Background

Defendant operates a restaurant located at 741 Royal Street, New Orleans, Louisiana

70116.4 In December 2021, Plaintiff applied for employment with Defendant as a server.5 The

complaint states that in Plaintiff’s cover letter she indicated that she was only available for night

shifts due to a medical diagnosis.6 Plaintiff states that was she diagnosed with Delayed Sleep Phase

Disorder.7 Plaintiff was hired and began working for Defendant on December 15, 2021.8

The complaint states that shortly after Plaintiff commenced her employment with

Defendant, a new night manager was hired, Michael Hughes (“Hughes”).9 In January 2022,

Plaintiff alleges that she witnessed Hughes discriminate against a transgender co-employee, which

Plaintiff reported to another manager.10 Plaintiff alleges that she began suffering a hostile work

environment in retaliation for reporting Hughes.11 Plaintiff alleges that she began averaging only

one table at a time while other co-employees were allowed to work multiple tables at a time.12

4 Rec. Doc. 1 at 3.

5 Id.

6 Id.

7 Id. at 4.

8 Id. at 3.

9 Id.

10 Id. at 4.

11 Id.

12 Id.

On or about February 4, 2022, Plaintiff alleges that Hughes asked her if he could stay at

her apartment for two weeks during Mardi Gras, which Plaintiff refused.13 Thereafter, Plaintiff

states that Hughes referred to her as “difficult” to another manager.14

On February 11, 2022, Plaintiff alleges that she injured her ankle by accidently stepping

into a hole in the kitchen floor.15 Plaintiff states that she reported this incident to Hughes.16 Plaintiff

contends that Hughes falsely stated that the injury occurred at home and refused to file an accident

report.17

After returning to work on March 15, 2022, Plaintiff alleges that she was scheduled for

daytime shifts, despite her medical condition, and she was assigned tables furthest away from the

kitchen, despite the injury to her ankle.18

On March 20, 2022, Plaintiff states that she received a call from April Hartman, the Human

Resource Manager, to discuss a negative online review regarding Hughes.19 Thereafter, Plaintiff

alleges that Hughes accused Plaintiff of actions and arguments that never occurred.20

On or about March 30, 2022, Plaintiff was terminated based upon accusations of racial

harassment towards an African American co-employee, which Plaintiff denies.21

13 Id.

14 Id.

15 Id. at 5.

16 Id.

17 Id.

18 Id. at 6.

19 Id.

20 Id. at 7.

21 Id. at 8.

On or about December 28, 2022, Plaintiff submitted a charge against Defendant with the

EEOC alleging discrimination.22 On December 7, 2023, the EEOC issued a Notice of Right to

Sue.23

On March 29, 2024, Plaintiff filed a complaint against Defendant in this Court.24 Plaintiff,

a Caucasian woman, brings causes of action for: (1) Hostile Work Environment pursuant to Title

VII of the Civil Rights Act (“Title VII”); (2) reverse racial discrimination pursuant to Title VII;

(3) disability discrimination pursuant to the Americans with Disabilities Act of 1990 (42 U.S.C. §

120101, et seq.) (“ADA”); (4) discrimination in pay pursuant to the Equal Pay Act (29 U.S.C. §

2016(d), et seq.); and (5) retaliation pursuant to Title VII.25

On June 24, 2025, Defendant filed the instant Motion for Summary Judgment.26 On July

1, 2025, Plaintiff filed an opposition to the motion.27 On July 3, 2025, Defendant filed a reply

memorandum in further support of the motion.28

II. Parties’ Arguments

A. Defendant’s Arguments in Support of the Motion

Defendant moves for summary judgment, first arguing that Plaintiff’s Title VII and ADA

claims in Counts 1,2,3, and 5 are untimely because Plaintiff failed to file suit within 90 days of

receipt of the EEOC’s Notice of the Right to Sue.29 Defendants explain on December 28, 2022,

22 Id. at 26–27.

23 Rec. Doc. 1-3.

24 Rec. Doc. 1.

25 Id. at 10–11.

26 Rec. Doc. 66.

27 Rec. Doc. 71.

28 Rec. Doc. 79.

29 Rec. Doc. 66-1 at 5.

Plaintiff filed a charge with the EEOC alleging discrimination on the basis of race, color, age, and

disability, and retaliation.30 On December 7, 2023, Defendant contends Plaintiff’s attorney

requested a Notice of the Right to Sue via email to the EEOC investigator, and on the same day,

all parties and their counsel received an email notification indicating that a document was uploaded

to the portal.31 Defendant states the EEOC issued a Notice of the Right to Sue which instructed

Plaintiff that she had 90 days to file suit, which expired on March 6, 2024.32 Defendant provides

Plaintiff admitted she received the December 7, 2023 email, but Plaintiff and her attorney allege

they had difficulty accessing the portal.33 Defendant contends neither Plaintiff nor her attorney

attempted to access the portal or contact the EEOC between December 9, 2023 and March 27,

2024.34 Defendant avers Plaintiff filed suit on March 29, 2024, 113 days after receiving the Notice

of the Right to Sue, which was issued upon Plaintiff’s request.35

While the Court denied Defendant’s prior Motion for Partial Summary Judgment as

premature based on Plaintiff’s claims that she needed additional discovery to evidence that she

could not access the portal to view the Notice of the Right to Sue, Defendant contends that Plaintiff

has conducted no discovery with the EEOC to support this contention.36 Defendant provides that

Plaintiff and her attorney admitted under oath that they did not exercise due diligence for more

than three months to determine the contents of the December 7, 2023 email from the EEOC.37

30 Id. at 6.

31 Id.

32 Id.

33 Id.

34 Id.

35 Id. at 7.

36 Id.

37 Id.

Defendant asserts, as a matter of law, the receipt of the notification email constituted the date upon

which Plaintiff received Notice of the Right to Sue.38 Defendant asserts Plaintiff’s Title VII and

ADA claims must be dismissed as untimely.39

Defendant argues Plaintiff’s claim for “denial for advancements” in Count 1 is time-barred

under Section 1981.40 Defendant explains that claims for denial for advancement are subject to a

one-year statute of limitations because it is considered a discrete act.41 Defendant contends

Plaintiff was terminated on March 30, 2022, and Plaintiff filed suit on March 29, 2024, which is

untimely.42 Defendant asserts this claim must be dismissed with prejudice.43

Defendant argues Plaintiff failed to exhaust her administrative remedies with respect to her

Title VII claims for sex discrimination, harassment, and retaliation in Counts 1 and 5.44 Defendant

states federal courts lack jurisdiction to consider Title VII claims unless there is administrative

exhaustion.45 Defendant explains that Plaintiff checked the boxes for discrimination based on race,

color, retaliation, age, and disability on her EEOC complaint, but her narrative failed to include

allegations of harassment, discrimination, or retaliation based on sex, and thus, Defendant

contends she failed to put the EEOC on notice to investigate those allegations.46 Defendant points

out that the EEOC’s Recommendation for Closure confirms that it did not investigate any claims

38 Id.

39 Id.

40 Id. at 8.

41 Id.

42 Id.

43 Id.

44 Id.

45 Id.

46 Id.

related to sex discrimination, sexual harassment, or retaliation based on sex.47 Defendant asserts

these claims should be dismissed for failure to exhaust.48

Alternately, Defendant argues Plaintiff’s claims also fail on the merits.49 Defendant avers

Plaintiff’s race-based hostile work environment claim fails.50 Defendant contends Plaintiff cannot

sustain a prima facie case for race discrimination.51 While Plaintiff represents that Hughes, who is

also Caucasian, harassed her, Defendant avers none of these comments were physically

threatening, humiliating, severe, or related to race.52 Defendant states that Plaintiff testified no one

raised her race while employed for Defendant or in connection with her termination.53 Defendant

points out that Rodriguez, the sole decisionmaker, is the same race as Plaintiff.54 While Plaintiff

states she suffered from a hostile work environment in retaliation for reporting Hughes, Defendant

contends the Fifth Circuit has never recognized a cause of action under Title VII for a retaliatory

hostile work environment.55

While Plaintiff alleges Defendant harassed her by accusing her of racially harassing Perry

and terminating her employment, Defendant contends Plaintiff’s racial harassment of Perry led to

her termination.56 Defendant argues Plaintiff has no evidence other than speculation that race

47 Id. at 8 – 9.

48 Id. at 9.

49 Id.

50 Id.

51 Id.

52 Id. at 10.

53 Id. at 10 – 11.

54 Id. at 11.

55 Id.

56 Id.

played a factor in her termination.57 Defendant asserts the reasons underlying Plaintiff’s

termination do not rise to a level of a hostile work environment based on race.58

Defendant argues Plaintiff cannot sustain a sex-based hostile work environment claim

under Title VII.59 Defendant contends Plaintiff cannot establish the alleged conduct was

sufficiently severe or pervasive to constitute actionable sex-based harassment.60 Defendant

provides that Plaintiff testified “Michael Hughes wanted to get rid of me because he did not like

me because I told management he tried to stay at my apartment, that he harassed a trans person,

that he didn’t report an injury that happened on his shift.”61 Defendant further provides that

Plaintiff claimed Hughes created a sex-based hostile work environment by giving more tables to

male servers.62 In regard to Hughes’ request to stay at Plaintiff’s apartment, Defendant argues this

does not qualify as sexual harassment.63 Defendant states that Hughes testified that Plaintiff had

offered him her spare room during Mardi Gras.64 Defendant argues that Hughes is gay, and

Plaintiff has not identified any requests for sexual favors or sexual activity in connection with the

request.65 Further, Defendant avers Plaintiff cannot show that Defendant failed to take prompt

remedial action following Hughes’ request to stay at Plaintiff’s apartment.66

57 Id.

58 Id.

59 Id. at 12.

60 Id.

61 Id.

62 Id.

63 Id. at 13.

64 Id.

65 Id.

66 Id. at 14.

Defendant argues Plaintiff has no evidence that Hughes intentionally discriminated against

her after she complained about Hughes calling a transgender employee the wrong pronoun.67

While Plaintiff alleges the transgender employee was terminated as a result of Plaintiff’s

complaints about Hughes, Defendant argues Plaintiff has no evidence to support this allegation

and Hughes did not have authority to terminate the transgender employee.68 Defendant asserts

Plaintiff has no support for her claim that Hughes intentionally discriminated against her after she

complained about him.69

Defendant argues Hughes’ alleged failure to report her on-the-job injury is not based on a

protected characteristic.70 Defendant contends Plaintiff fails to articulate how Hughes’ purported

failure to report her alleged injury constituted a sex-based hostile work environment.71 Defendant

avers complaints about the “ordinary tribulations of the workplace” are not actionable unless based

on a protected trait.72 Defendant argues Plaintiff’s self-serving testimony cannot support her claim

that Hughes gave more tables to male servers.73 Defendant contends Plaintiff offers no evidence

to support this allegation.74

Defendant argues Plaintiff cannot sustain a claim for race discrimination.75 Defendant

contends Plaintiff provided no evidence of direct discrimination.76 Defendant provides that

67 Id.

68 Id.

69 Id. at 15.

70 Id.

71 Id.

72 Id.

73 Id.

74 Id. at 15 – 16.

75 Id. at 16.

76 Id. at 17.

Plaintiff was replaced by another Caucasian woman after her termination, and Plaintiff cannot

prove she was treated less favorably than her comparators outside of her protected class under

nearly identical circumstances.77 Defendant contends Plaintiff was terminated for insubordination

after she continued to gossip and complain about her manager to customers.78 Defendant states

Plaintiff’s conduct was not nearly identical to her comparators for purposes of her race

discrimination claim.79

Defendant argues Plaintiff cannot establish pretext for race discrimination.80 Defendant

contends that Plaintiff admitted to committing the actions which Defendant states led to her

termination.81 Even if Plaintiff’s allegations were true, Defendant avers Plaintiff offers no

evidence that she was treated differently than other similarly situated employees under nearly

identical circumstances.82 Defendant explains employers are entitled to be unreasonable as long

as they do not act with discriminatory animus.83 Defendant avers the decisionmaker, Rodriguez,

is the same race as Plaintiff.84

Defendant argues Plaintiff’s claim for disability discrimination in violation of the ADA

fails on the merits.85 While Plaintiff’s claim is based on a sleep disorder, Defendant contends

Plaintiff testified that she can no longer work as a server due to mobility issues which renders her

77 Id.

78 Id. at 18.

79 Id.

80 Id. at 19.

81 Id.

82 Id. at 20.

83 Id.

84 Id. at 21.

85 Id.

unqualified under the ADA.86 Defendant avers Plaintiff cannot show that Defendant failed to

accommodate her, that her termination was related to her sleep disorder, nor can she establish

pretext.87 Defendant argues Plaintiff is not a qualified individual under the ADA because Plaintiff

testified she can no longer work as a server.88 Defendant explains Plaintiff’s doctor’s note stated

she could not work mornings, and Plaintiff testified that she was scheduled for a single shift that

began at noon while all other shifts began at 3:00-4:00 PM.89 Defendant contends the

aforementioned noon shift was scheduled by a newly hired manager with whom Plaintiff had never

discussed her sleep disorder.90 Defendant provides that when Plaintiff learned that she was

scheduled for the noon shift, she emailed her manager stating that she would be “glad” to work

that shift and she was a “team player”.91 Defendant avers there is no evidence that Plaintiff was

denied a request for a reasonable accommodation, nor can she identify a comparator whom

Defendant treated more favorably.92 Defendant contends Plaintiff fails to rebut the legitimate,

nondiscriminatory reason for her termination.93

Defendant argues Plaintiff cannot sustain a claim under the EPA because all servers were

paid the same rate.94 Defendant contends there is no pay difference to support an EPA violation

because all servers were paid minimum wage under the Fair Labor Standards Act.95 Defendant

86 Id.

87 Id.

88 Id. at 22.

89 Id. at 23.

90 Id.

91 Id.

92 Id. at 23 – 24.

93 Id. at 24 – 25.

94 Id. at 25.

95 Id. at 26.

avers the EPA looks to equal wages for work, not equal gratuities.96 Defendant explains tips are

discretionary in nature, and there is no way to ascertain the amount of tips Plaintiff earned

compared to her male coworkers.97 Defendant asserts, considering the uncertain factors involved

with tips, it is impossible to cast tips as “wages” for the purposes of an EPA claim.98 Defendant

avers Plaintiff cannot prove her burden of showing that Defendant willfully violated the EPA in

order to apply the three-year limitation period.99

Defendant argues Plaintiff has no viable claim for retaliation.100 Defendant contends the

only instances that could qualify as protected activity to support a claim of retaliation under Title

VII are when Plaintiff declined to allow Hughes to stay at her apartment and when she reported

Hughes for using the wrong pronoun in reference to a transgender coworker.101 Defendant avers

Plaintiff has no competent summary judgment evidence to show these transgressions adversely

impacted her employment.102 Defendant asserts Plaintiff cannot overcome her own admitted

misconduct which led to termination more than two months after Hughes asked to stay at her

apartment and his misuse of pronouns.103 Defendant maintains there is no evidence the sole

decisionmaker, Rodriguez, terminated Plaintiff’s employment because she complained about

Hughes.104 Defendant asserts Plaintiff’s claims should be dismissed.105

96 Id.

97 Id. at 27.

98 Id.

99 Id.

100 Id. at 28.

101 Id.

102 Id.

103 Id.

104 Id. at 28 – 29.

105 Id. at 29.

B. Plaintiff’s Arguments in Opposition to the Motion

In opposition, Plaintiff argues the evidence demonstrates genuine issues of material fact

regarding Plaintiff’s reverse race discrimination claims.106 Plaintiff contends she was replaced by

employees outside of her protected class, including African American coworkers such as Lena

Perry.107 Plaintiff contends she received fewer table assignments while other non-white employees

were treated more favorably.108 Plaintiff contends she was terminated without any progressive

discipline or formal written warning, contrary to Defendant’s practices.109 Plaintiff avers other

coworkers were not subjected to the same harsh penalties for similar or lesser conduct.110 Plaintiff

states that Hartman admitted that Plaintiff’s termination was largely based on Lena Perry’s reaction

not the content of the comment itself.111 Plaintiff contends Rodriguez declared that any comment

about Perry’s hair was racial based on Perry being African American.112 Plaintiff avers this blanket

presumption of racial animus absent investigation or an opportunity to respond reflects unlawful

stereotyping and differential treatment based on Plaintiff’s race.113

Plaintiff argues any non-discriminatory reason for Plaintiff’s discharge is pretextual.114

Plaintiff contends she had a documented history of minimal interaction with Perry and Human

Resources admitted its race-based interpretation was based solely on Perry’s reaction.115 While it

106 Rec. Doc. 79 at 6.

107 Id. at 9.

108 Id.

109 Id.

110 Id.

111 Id.

112 Id.

113 Id.

114 Id.

115 Id. at 10.

was reported to the Louisiana Workforce Commission that Plaintiff was terminated for using racial

slurs, Plaintiff states Hartman later admitted that this was a mistake which Plaintiff contends

undermines the credibility of Defendant’s purported justification.116 Plaintiff argues she can

prevail under the mixed-motive theory because Plaintiff contends her race was a motivating factor

in termination.117 Plaintiff contends Rodriguez’s presumption that any comment to an African

American coworker was racial regardless of intent reveals race-based bias.118

Plaintiff contends Defendant’s reason for termination is a pretext because the evidence

shows Plaintiff merely complimented Perry’s hair and expressed interest in wigs after Perry

voluntarily disclosed that she wore one on March 21, 2022.119 Plaintiff avers the employer’s shift

their justification for Plaintiff’s termination from racial slurs to emotional impact to

insubordination which demonstrates a lack of consistency and credibility.120 Plaintiff provides that

a jury could reasonably conclude that Defendant exaggerated its concerns and that the true reason

for Plaintiff’s termination was her race.121

Plaintiff argues Defendant’s failure to investigate undermines the credibility of the decision

to terminate her.122 Plaintiff contends the incident involving Perry was not investigated, Hartman

admitted she did not speak with Rodriguez about Plaintiff’s disability accommodation letter, nor

did Hartman verify whether Plaintiff’s accommodations were being respected.123

116 Id.

117 Id.

118 Id.

119 Id.

120 Id. at 11.

121 Id.

122 Id. at 12.

123 Id.

While Perry’s sworn declaration asserts that Plaintiff made daily offense comments about

her hair and wigs, Plaintiff contends this is contradicted by the audio recording dated March 21,

2022 in which Perry disclosed for the first time that she wore a wig.124 Plaintiff provides the next

and final mention of Perry’s hair occurred on March 29, 2022, prompting Perry’s sudden

reaction.125 Plaintiff disputes claims that she made daily comments to Perry and states that she

apologized to Perry.126 Based on this, Plaintiff avers a jury may determine her termination was not

based on any legitimate, nondiscriminatory reason.127

Regarding timeliness, Plaintiff argues the evidence demonstrates genuine issues of material

fact regarding equitable tolling of the 90-day limitations period.128 Plaintiff contends her counsel

vigorously pursued her claims, but agency miscommunication and technical problems interfered

with timely access to the Notice of the Right to Sue letter.129 Plaintiff provides the EEOC

transferred her charge to LCHR on April 10, 2023, and the EEOC issued a Right to Sue letter on

December 7, 2023 while the LCHR continued to actively investigate the matter.130 Plaintiff avers

this overlap created the reasonable impression that the matter was still pending and that a decision

had not been finalized.131 Plaintiff provides a September 28, 2023 email to the EEOC investigator

Kory Fascio shows technical issues with accessing the portal.132 Plaintiff contends the EEOC’s

124 Id. at 14.

125 Id.

126 Id.

127 Id.

128 Id. at 15.

129 Id. at 16.

130 Id.

131 Id.

132 Id.

notification was ambiguous, and Plaintiff’s attorney continued to follow up with emails and phone

calls which were not returned.133

Plaintiff argues the evidence demonstrates genuine issues of material fact regarding

Plaintiff’s ADA claims.134 Plaintiff contends her sleep disorder is a qualified disability under the

ADA.135 Plaintiff states she was scheduled for a 10-hour shift which began at noon in disregard of

Plaintiff’s request for accommodation, and she was later fired on March 30, 2022.136 Plaintiff

asserts there is a question of fact as to whether the proximity between the shift and her termination

establishes pretext.137

Plaintiff argues the evidence demonstrates genuine issues of material fact regarding her

EPA claim.138 Plaintiff claims she was given fewer tables and less customers to wait on in her

position as a server, and thus, her income was significantly less than her peers.139 While Defendant

argues Plaintiff was paid the same base hourly wage as her male comparators, Plaintiff contends

this assertion fails to address that her earnings encompass the cash tips.140 Plaintiff asserts the

distribution of table assignments is directly linked to Plaintiff’s claim that Defendant violated the

EPA.141 Plaintiff avers Defendant’s contention that tips do not constitute wages is unsupported.142

133 Id. at 17.

134 Id. at 18.

135 Id. at 19.

136 Id. at 20.

137 Id.

138 Id. at 21.

139 Id. at 22.

140 Id. at 22 – 23.

141 Id. at 23.

142 Id. at 23 – 24.

Plaintiff states Defendant has not produced point-of-sale (“POS”) or tip data for the

relevant periods at issue which Plaintiff contends would provide evidence regarding section

assignments, table turnover, and earnings.143 Plaintiff argues the failure to preserve or produce this

evidence warrants an adverse inference of discriminatory intent and unequal pay.144

C. Defendant’s Arguments in Further Support of the Motion

In reply, Defendant points out that Plaintiff failed to address several undisputed issues of

material fact.145 Defendant argues Plaintiff fails to establish grounds for equitable tolling.146 While

the Court previously denied Defendant’s motion to dismiss, stating that additional discovery was

needed on the steps Plaintiff and her counsel took the view the document and the alleged technical

difficulties within the EEOC portal, Defendant contends Plaintiff conducted no discovery with the

EEOC or the LCHR.147 Defendant states Plaintiff and her counsel stated they did nothing to access

the document between December 7, 2023 and March 28, 2024.148 Defendant contends Plaintiff

admitted she requested a Notice of Right to Sue on December 7, 2023 and the EEOC issued the

letter on the same date.149 Defendant avers Plaintiff’s assertion that she believed the investigation

was ongoing is contradictory because the EEOC issues a Notice of the Right to Sue when the

agency concludes the investigation.150 Defendant asserts the Court must reject Plaintiff’s

contention that her counsel, a ten-year employment attorney, was confused after requesting a

143 Id. at 24.

144 Id.

145 Rec. Doc. 83 at 1.

146 Id. at 3.

147 Id. at 3 – 4.

148 Id. at 4.

149 Id.

150 Id.

Notice of the Right to Sue.151 Defendant argues Plaintiff has failed to provide evidence that the

EEOC acted in a misleading manner or what steps Plaintiff or her counsel took to access the

document uploaded on December 7, 2023.152

Defendant reiterates that Plaintiff cannot withstand summary judgment on Count 1 (race

discrimination claim).153 While Plaintiff states she was replaced by employees outside of her

protected class including Perry, Defendant contends Perry was an existing server and could not

have replaced Plaintiff.154 Defendant avers Plaintiff fails to identify any African American workers

who purportedly replaced her.155

Defendant argues Plaintiff fails to identify a comparator outside of her protected class who

was treated more favorably.156 While Plaintiff asserts other severs received preferable tables and

shifts, Defendant contends Plaintiff fails to identify a comparator who received more favorable

tables and shift assignments.157

While Plaintiff states she was terminated without progressive discipline or formal warning,

Defendant avers none of Plaintiff’s cited testimony supports this contention.158 Defendant explains

employers are not required to follow progressive discipline or issue written warning prior to

terminating an at-will employee.159 Defendant contends Plaintiff fails to show any bad faith of

151 Id.

152 Id. at 5.

153 Id.

154 Id.

155 Id. at 6.

156 Id.

157 Id.

158 Id. at 7.

159 Id.

Rodriguez, the sole decisionmaker, who is the same race as Plaintiff.160 Defendant asserts Plaintiff

provides no evidence to support her allegations that she was replaced by someone outside of her

protected class or that she was subjected to disparate treatment based on her race.161

Defendant argues Plaintiff fails to show that Defendant’s legitimate, nondiscriminatory

reasons for Plaintiff’s termination were pretext for race discrimination.162 While Plaintiff contends

Defendant failed to investigate Perry’s complaints regarding racial remarks made by Plaintiff,

Defendant explains Hughes reported the incident to Hartman who instructed him to write a

statement of the incident and Plaintiff’s other transgressions.163 Defendant states Hartman gave

the statement to Rodriguez who spoke to Perry and another employee which ultimately led to

Plaintiff’s termination.164

Defendant argues Plaintiff only offers self-serving testimony to support her contentions.165

Defendant contends Plaintiff simply disagrees that should have been fired, but Plaintiff fails to

produce evidence to contradict the legitimate reasons offered for her termination.166 Defendant

acknowledges a mistake was make when “racial slurs” were provided as the reason for Plaintiff’s

termination, but Defendant contends this mistake does not mean pretext.167 Defendant avers

Plaintiff fails to address the other reasons for her termination such as gossiping and speaking

negatively about her manager to customers.168

160 Id. at 8.

161 Id.

162 Id.

163 Id. at 8 – 9.

164 Id. at 9.

165 Id.

166 Id.

167 Id. at 10.

168 Id. at 11.

Defendant reiterates Plaintiff fails to establish that but for her race, she would not have

been terminated.169 Defendant contends no reasonable jury could find that Rodriguez, who is

Caucasian, terminated Plaintiff, who is also Caucasian, based on her race.170

Defendant argues Plaintiff fails to show that she was a qualified individual after she worked

at Landry’s.171 Defendant explains it does not dispute that Plaintiff’s sleep disorder is a disability,

but Defendant does dispute whether Plaintiff is a qualified individual due to her mobility issues

and whether Plaintiff can recover back pay and front pay.172 Defendant contends there is no

genuine issue of material fact that Defendant accommodated Plaintiff’s disability and the

restrictions in her doctor’s note.173 Defendant avers Plaintiff’s doctor’s note did not restrict shifts

that began in the afternoon.174

III. Legal Standard

Summary judgment is appropriate when the pleadings, discovery, and affidavits

demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.”175 To decide whether a genuine dispute as to any material fact exists, the court

considers “all of the evidence in the record but refrain[s] from making credibility determinations

or weighing the evidence.”176 All reasonable inferences are drawn in favor of the nonmoving

169 Id.

170 Id.

171 Id. at 12

172 Id.

173 Id.

174 Id.

175 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

176 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008) (citing

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

party.177 Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”178

If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then

no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a

matter of law.179 The nonmoving party may not rest upon the pleadings.180 Instead, the nonmoving

party must identify specific facts in the record and articulate the precise manner in which that

evidence establishes a genuine issue for trial.181

The party seeking summary judgment always bears the initial responsibility of showing the

basis for its motion and identifying record evidence that demonstrates the absence of a genuine

issue of material fact.182 “To satisfy this burden, the movant may either (1) submit evidentiary

documents that negate the existence of some material element of the opponent’s claim or defense,

or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at

trial, demonstrate that the evidence in the record insufficiently supports an essential element of the

opponent’s claim or defense.”183 If the moving party satisfies its initial burden, the burden shifts

to the nonmoving party to “identify specific evidence in the record, and to articulate” precisely

how that evidence supports the nonmoving party’s claims.184 The nonmoving party must set forth

177 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves, 530 U.S. at

150).

178 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

179 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of

Ariz. v. Cites Serv. Co., 391 U.S. 253, 289 (1968)).

180 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

181 See id.; Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

182 Celotex Corp., 477 U.S. at 323.

183 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (internal citation omitted).

184 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris

“specific facts showing the existence of a ‘genuine’ issue concerning every essential component

of its case.”185

The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied

merely by creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,

by unsubstantiated assertions, or by only a scintilla of evidence.”186 Moreover, the nonmoving

party may not rest upon mere allegations or denials in its pleadings.187

VI. Analysis

Defendant seeks summary judgment arguing that (1) Plaintiff’s Title VII and the ADA

claims are untimely because the complaint was filed more than 90 days after receipt of Notice of

the Right to Sue; (2) Plaintiff failed to exhaust her administrative remedies with respect to her Title

VII claims for sex discrimination, harassment, and retaliation; and (3) Plaintiff cannot maintain

claims for race discrimination, hostile work environment, retaliation, violations of the EPA,

violations of the ADA, or sex discrimination. In opposition, Plaintiff argues the doctrine of

equitable tolling applies here, and thus her claims were timely. Plaintiff also argues that genuine

issues of material fact remain regarding the underlying discrimination claims. The Court will first

address the issues raised regarding timeliness.

A. Timeliness

Under both Title VII and the ADA, a plaintiff must file suit within 90 days of receiving the

v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

185 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).

186 Little, 37 F.3d at 1075 (internal citations and quotation marks omitted).

187 Morris, 144 F.3d at 380.

Notice of Right to Sue from the EEOC.188 “[C]ommencement of the ninety-day period begins to

run on the day that notice is received at the address supplied to the EEOC by the claimant.”189 The

Fifth Circuit has recognized that “when the date that the letter is actually received is unknown or

is in dispute, we will, like other courts, presume that the letter was received within three to seven

days after it was mailed[.]”190

The deadline for filing is not a jurisdictional requirement, and the limitation statute is

subject to estoppel and equitable tolling.191 “A defendant is equitably estopped from asserting that

a claim is time-barred where its conduct induced a plaintiff to refrain from exercising its rights.

‘Equitable tolling focuses on the plaintiff’s excusable ignorance of the employer's discriminatory

act.’”192 However, these equitable doctrines “are to be applied sparingly.”193 The plaintiff bears

the burden of demonstrating entitlement to tolling or estoppel.194

The Fifth Circuit has articulated three potential bases for equitable tolling in employment

discrimination cases: “(1) the pendency of a suit between the same parties in the wrong forum; (2)

plaintiff’s unawareness of the facts giving rise to the claim because of the defendant’s intentional

concealment of them; and (3) the EEOC’s misleading the plaintiff about the nature of her

188 See 42 U.S.C. § 2000e-5(f)(1) (Title VII); 42 U.S.C. § 12117(a) (applying Title VII’s limitations period

to ADA claims).

189 Bowers v. Potter, 113 F. App’x 610, 612 (5th Cir. 2004).

190 Id. at 612–13.

191 Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992) (citing Zipes v. TransWorld Airlines,

Inc., 455 U.S. 385, 393 (1982)).

192 Id. (quoting Amburgey v. Cohart Refractories Corp., 936 F.2d 805, 810 n. 14 (5th Cir. 1991)).

193 Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101,113 (2002).

194 Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th Cir. 2002) (internal citations omitted).

rights.”195 However, this list is not exhaustive, and the Fifth Circuit has opined that there may be

other bases that warrant equitable tolling.196

It is undisputed that Plaintiff’s attorney requested a Notice of the Right to Sue from the

EEOC on December 7, 2023, the EEOC issued the Notice of the Right to Sue on the same day,

and Plaintiff filed suit in this Court on March 29, 2024, 113 days later. Plaintiff contends agency

miscommunication and technical problems interfered with timely access to the Right to Sue letter.

Plaintiff’s counsel also states he was under the impression that the matter was still pending and

that a decision had not been finalized because the EEOC and LCHR were operating jointly. The

Court is not persuaded by Plaintiff’s assertions. Plaintiff has failed to show (1) the pendency of a

suit between the same parties in the wrong forum; (2) that she was unaware of facts giving rise to

this claim because of Penske's intentional concealment; or (3) that the EEOC misled her about the

nature of her rights.197 Further, courts are reluctant to apply equitable tolling to situations of

attorney error or neglect, or where a plaintiff has failed to show that she pursued her rights

diligently.198 Plaintiff bears the burden of demonstrating the basis for tolling the limitations

period.199 The evidence presented is insufficient to meet Plaintiff’s burden, and equitable tolling

does not apply. As such, Plaintiff’s claims under Title VII for hostile work environment, reverse

195 Melgar v. T.B. Butler Publ'g Co., Inc., 931 F.3d 375, 380 (5th Cir. 2019) (quoting Teemac v. Henderson,

298 F.3d 452, 457 (5th Cir. 2002). See also Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 880 (5th Cir. 2003)

(citing Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir. 1988)).

196 Melgar., 931 F.3d at 381 (citing Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999)).

197 See Granger v. Aaron's, Inc., 636 F.3d 708, 712 (5th Cir.2011); see also Hood v. Sears Roebuck & Co.,

168 F.3d 231, 233–34 (5th Cir.1999).

198 See Granger, 636 F.3d at 712 (citing Wilson v. Sec'y Dep't of Veterans Affairs, 65 F.3d 402, 404–05 (5th

Cir.1995)).

199 Ramirez v. City of San Antonio, 312 F.3d 178, 184 (5th Cir.2002).

racial discrimination, retaliation, and disability discrimination under the ADA must be dismissed

as untimely.

B. The Equal Pay Act

The Court now turns to Plaintiff’s remaining claim under the Equal Pay Act. Plaintiff

alleges she was not paid equally to her male coworkers because she was given fewer tables and

less customers to wait on in her position as a server. “In short, [the Equal Pay Act] demands that

equal wages reward equal work.”200 “Unlike Title VII, the burden of persuasion may shift from

the plaintiff to the defendant in a suit under the Equal Pay Act.”201 The plaintiff bears the initial

burden of making out a prima facie case of discrimination under the Equal Pay Act by “showing

that an employer compensates employees differently for equal work.”202 To make out a prima facie

case under the Equal Pay Act, a plaintiff must show that “1. her employer is subject to the Act; 2.

she performed work in a position requiring equal skill, effort, and responsibility under similar

working conditions; and 3. she was paid less than the employee of the opposite sex providing the

basis of comparison.”203 If the plaintiff makes out a prima facie case, the burden of proof “shifts

to the employer to show that the differential is justified under one of the Act's four exceptions.”

The four enumerated exceptions to the Equal Pay Act “are affirmative defenses on which the

employer has the burden both of production and of persuasion.”204

200 Siler–Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 546 (5th Cir. 2001) (citing

Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974)).

201 Jones v. Flagship Intl., 793 F.2d 714 (5th Cir.1986).

202 King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 723 (5th Cir.2011) (citing Siler–Khodr, 261 F.3d at

546).

203 Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir.1993).

204 Jones, 793 F.2d at 722 (quoting Corning Glass Works, 417 U.S. at 197, 94 S.Ct. 2223).

It is undisputed that Plaintiff and her male coworkers were all employed as servers and

compensated according to the same pay structure: a uniform hourly base wage supplemented by

tips received from customers. Plaintiff has not introduced evidence that Defendant’s male

employees received a higher hourly wage, or that Defendant engaged in any discriminatory

practices in setting pay rates. Plaintiff contends Defendant has not produced POS data or tip data

for the relevant period which would have provided evidence regarding section assignments, table

turnover, and earnings. However, said evidence would be inconsequential.

“Under the EPA, the term ‘wages’ generally includes all payments made to [or on behalf

of] an employee as remuneration for employment. The term includes all forms of compensation

irrespective of the time of payment, whether paid periodically or deferred until a later date, and

whether called wages, salary, profit sharing, expense account, monthly minimum, bonus, uniform

cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other

name.”205 “A tip is a sum presented by a customer as a gift or gratuity in recognition of some

service performed for the customer. It is to be distinguished from payment of a charge, if any,

made for the service. Whether a tip is to be given, and its amount, are matters determined solely

by the customer.”206 Plaintiff has not alleged that tips were pooled by the employer and later

unequally distributed to employees based on sex or race.207 The plain language of the above-

referenced statutes reflects an intention to separate tips and wages. Even assuming the POS data

would show a differentiation in tip amounts, as stated above “[w]hether a tip is to be given, and its

205 29 C.F.R. § 1620.10.

206 29 C.F.R. § 531.52.

207 See e.g., Morgan v. SpeakEasy, LLC, 625 F. Supp. 2d 632 (N.D. Ill. 2007).

amount, are matters determined solely by the customer.””°* Further, differentiations in table

assignments is not determinative of tips received because one server may receive a large tip from

one table, while another server may recetve much less from several tables. The Court, drawing

reasonable inferences in favor of Plaintiff, concludes that the entire record could not lead a rational

trier of fact to find for Plaintiff. As such, Plaintiff has failed to establish a prima facie case under

the Equal Pay Act, and summary judgment is appropriate.

V. Conclusion

For the reasons stated herein, the Court finds that Plaintiffs claims under Title VII and the

ADA are untimely and must be dismissed. The Court further finds that Plaintiff has failed

to establish a prima facie case under the Equal Pay Act, and thus, summary judgment is

appropriate. Accordingly,

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment

is GRANTED.

NEW ORLEANS, LOUISIANA, this 21st gay of July, 2025.

DV \errette oburtte B,

NANNETTE JOLIVETTE BROWN

UNITED STATES DISTRICT JUDGE

208 99 CLE.LR. § 531.52.

27

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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