The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACQUELINE WHITFIELD CIVIL ACTION
VERSUS CASE NO. 24-806
PERE ANTOINE, LLC SECTION: “G”
AMENDED ORDER AND REASONS1
This litigation involves an employment discrimination dispute.2 Before the Court are
Defendant Pere Antoine, LLC’s (“Defendant”) Motion for Summary Judgment3 and Plaintiff
Jacqueline Whitfield’s (“Plaintiff”) Motion for Sanctions.4 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”), the Americans with Disabilities Act (“ADA”), and
for 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.5 Plaintiff
also seeks sanctions for alleged spoilation of evidence.6 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.
1 The Court amends the July 21, 2025 Order to include Plaintiff’s Motion for Sanctions.
2 See Rec. Doc. 1.
3 Rec. Doc. 66.
4 Rec. Doc. 67.
5 Id.
6 Rec. Doc. 66.
Therefore, considering the motions, the oppositions, the reply memoranda, the record, and the
applicable law, the Court grants the motion for summary judgment and denies the motion for
sanctions.
I. Background
Defendant operates a restaurant located at 741 Royal Street, New Orleans, Louisiana
70116.7 In December 2021, Plaintiff applied for employment with Defendant as a server.8 The
complaint states that in Plaintiff’s cover letter she indicated that she was only available for night
shifts due to a medical diagnosis.9 Plaintiff states that she was diagnosed with Delayed Sleep Phase
Disorder.10 Plaintiff was hired and began working for Defendant on December 15, 2021.11
The complaint states that shortly after Plaintiff commenced her employment with
Defendant, a new night manager was hired, Michael Hughes (“Hughes”).12 In January 2022,
Plaintiff alleges that she witnessed Hughes discriminate against a transgender co-employee, which
Plaintiff reported to another manager.13 Plaintiff alleges that she began suffering a hostile work
environment in retaliation for reporting Hughes.14 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.15
7 Rec. Doc. 1 at 3.
8 Id.
9 Id.
10 Id. at 4.
11 Id. at 3.
12 Id.
13 Id. at 4.
14 Id.
15 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.16 Thereafter, Plaintiff
states that Hughes referred to her as “difficult” to another manager.17
On February 11, 2022, Plaintiff alleges that she injured her ankle by accidently stepping
into a hole in the kitchen floor.18 Plaintiff states that she reported this incident to Hughes.19 Plaintiff
contends that Hughes falsely stated that the injury occurred at home and refused to file an accident
report.20
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.21
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.22 Thereafter, Plaintiff
alleges that Hughes accused Plaintiff of actions and arguments that never occurred.23
16 Id.
17 Id.
18 Id. at 5.
19 Id.
20 Id.
21 Id. at 6.
22 Id.
23 Id. at 7.
On or about March 30, 2022, Plaintiff was terminated based upon accusations of racial
harassment towards an African American co-employee, Lena Perry (“Perry”), which Plaintiff
denies.24
On or about December 28, 2022, Plaintiff submitted a charge against Defendant with the
EEOC alleging discrimination.25 On December 7, 2023, the EEOC issued a Notice of Right to
Sue.26
On March 29, 2024, Plaintiff filed a complaint against Defendant in this Court.27 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.28
On May 30, 2024, Defendant filed a motion for partial summary judgment, arguing that
Plaintiff’s Title VIII and ADA claims were not timely filed.29 The Court denied the motion as
premature and afforded Plaintiff additional time to conduct discovery into alleged technical
difficulties with accessing the EEOC portal.30
24 Id. at 8.
25 Id. at 26–27.
26 Rec. Doc. 1-3.
27 Rec. Doc. 1.
28 Id. at 10–11.
29 Rec. Doc. 6.
30 Rec. Doc. 17.
On June 24, 2025, Defendant filed the instant Motion for Summary Judgment.31 On July
1, 2025, Plaintiff filed an opposition to the motion.32 On July 3, 2025, Defendant filed a reply
memorandum in further support of the motion.33
On June 24, 2025, Plaintiff filed the instant Motion for Sanctions.34 On July 1, 2025,
Defendant filed an opposition to the motion.35 On July 7, 2025, Plaintiff filed a reply memorandum
in further support of the motion.36
II. Parties’ Arguments
A. Defendant’s Arguments in Support of the Motion for Summary Judgment
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.37 Defendants explain that on December 28,
2022, Plaintiff filed a charge with the EEOC alleging discrimination on the basis of race, color,
age, and disability, and retaliation.38 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.39 Defendant states the EEOC issued a Notice of the Right to Sue which
31 Rec. Doc. 66.
32 Rec. Doc. 71.
33 Rec. Doc. 79.
34 Rec. Doc. 67.
35 Rec. Doc. 71.
36 Rec. Doc. 81.
37 Rec. Doc. 66-1 at 5.
38 Id. at 6.
39 Id.
instructed Plaintiff that she had 90 days to file suit, which expired on March 6, 2024.40 According
to Defendant, Plaintiff admitted she received the December 7, 2023 email, but Plaintiff and her
attorney allege they had difficulty accessing the portal.41 Defendant contends neither Plaintiff nor
her attorney attempted to access the portal or contact the EEOC between December 9, 2023 and
March 27, 2024.42 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.43
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.44 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.45
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.46 Defendant asserts Plaintiff’s Title VII and
ADA claims must be dismissed as untimely.47
40 Id.
41 Id.
42 Id.
43 Id. at 7.
44 Id.
45 Id.
46 Id.
47 Id.
Second, Defendant argues Plaintiff’s claim for “denial for advancements” in Count 1 is
time-barred under Section 1981.48 Defendant explains that claims for denial for advancement are
subject to a one-year statute of limitations because it is considered a discrete act.49 Defendant
contends Plaintiff was terminated on March 30, 2022, and Plaintiff filed suit on March 29, 2024,
which is untimely.50 Defendant asserts this claim must be dismissed with prejudice.51
Third, 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 5.52
Defendant states federal courts lack jurisdiction to consider Title VII claims unless there is
administrative exhaustion.53 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.54
Defendant points out that the EEOC’s Recommendation for Closure confirms that it did not
investigate any claims related to sex discrimination, sexual harassment, or retaliation based on
sex.55 Defendant asserts these claims should be dismissed for failure to exhaust.56
48 Id. at 8.
49 Id.
50 Id.
51 Id.
52 Id.
53 Id.
54 Id.
55 Id. at 8–9.
56 Id. at 9.
Alternately, Defendant argues Plaintiff’s claims also fail on the merits.57 Defendant avers
Plaintiff’s race-based hostile work environment claim fails.58 Defendant contends Plaintiff cannot
sustain a prima facie case for race discrimination.59 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.60 Defendant states that Plaintiff testified no one
raised her race while employed for Defendant or in connection with her termination.61 Defendant
points out that Rodriguez, the sole decisionmaker, is the same race as Plaintiff.62 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.63
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.64 Defendant argues Plaintiff has no evidence other than speculation that race
played a factor in her termination.65 Defendant asserts the reasons underlying Plaintiff’s
termination do not rise to a level of a hostile work environment based on race.66
57 Id.
58 Id.
59 Id.
60 Id. at 10.
61 Id. at 10–11.
62 Id. at 11.
63 Id.
64 Id.
65 Id.
66 Id.
Next, Defendant argues Plaintiff cannot sustain a sex-based hostile work environment
claim under Title VII.67 Defendant contends Plaintiff cannot establish the alleged conduct was
sufficiently severe or pervasive to constitute actionable sex-based harassment.68 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.”69 Defendant further provides that
Plaintiff claimed Hughes created a sex-based hostile work environment by giving more tables to
male servers.70 In regard to Hughes’ request to stay at Plaintiff’s apartment, Defendant argues this
does not qualify as sexual harassment.71 Defendant states that Hughes testified Plaintiff had offered
him her spare room during Mardi Gras.72 Defendant argues that Hughes is gay, and Plaintiff has
not identified any requests for sexual favors or sexual activity in connection with the request.73
Further, Defendant avers Plaintiff cannot show that Defendant failed to take prompt remedial
action following Hughes’ request to stay at Plaintiff’s apartment.74
Defendant argues Plaintiff has no evidence that Hughes intentionally discriminated against
her after she complained about Hughes calling a transgender employee the wrong pronoun.75
67 Id. at 12.
68 Id.
69 Id.
70 Id.
71 Id. at 13.
72 Id.
73 Id.
74 Id. at 14.
75 Id.
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.76 Defendant asserts
Plaintiff has no support for her claim that Hughes intentionally discriminated against her after she
complained about him.77
Defendant argues Hughes’ alleged failure to report her on-the-job injury is not based on a
protected characteristic.78 Defendant contends Plaintiff fails to articulate how Hughes’ purported
failure to report her alleged injury constituted a sex-based hostile work environment.79 Defendant
avers complaints about the “ordinary tribulations of the workplace” are not actionable unless based
on a protected trait.80 Defendant argues Plaintiff’s self-serving testimony cannot support her claim
that Hughes gave more tables to male servers.81 Defendant contends Plaintiff offers no evidence
to support this allegation.82
Defendant argues Plaintiff cannot sustain a claim for race discrimination.83 Defendant
contends Plaintiff provided no evidence of direct discrimination.84 Defendant provides that
Plaintiff was replaced by another Caucasian woman after her termination, and Plaintiff cannot
76 Id.
77 Id. at 15.
78 Id.
79 Id.
80 Id.
81 Id.
82 Id. at 15–16.
83 Id. at 16.
84 Id. at 17.
prove she was treated less favorably than her comparators outside of her protected class under
nearly identical circumstances.85 Defendant contends Plaintiff was terminated for insubordination
after she continued to gossip and complain about her manager to customers.86 Defendant states
Plaintiff’s conduct was not nearly identical to her comparators for purposes of her race
discrimination claim.87
Defendant argues Plaintiff cannot establish pretext for race discrimination.88 Defendant
contends that Plaintiff admitted to committing the actions, which Defendant states led to her
termination.89 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.90 Defendant explains employers are entitled to be unreasonable as long
as they do not act with discriminatory animus.91 Defendant avers the decisionmaker, Rodriguez,
is the same race as Plaintiff.92
Defendant argues Plaintiff’s claim for disability discrimination in violation of the ADA
fails on the merits.93 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
85 Id.
86 Id. at 18.
87 Id.
88 Id. at 19.
89 Id.
90 Id. at 20.
91 Id.
92 Id. at 21.
93 Id.
unqualified under the ADA.94 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.95 Defendant argues Plaintiff is not a qualified individual under the ADA because Plaintiff
testified she can no longer work as a server.96 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.97 Defendant contends the
aforementioned noon shift was scheduled by a newly hired manager with whom Plaintiff had never
discussed her sleep disorder.98 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”.99 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.100 Defendant contends Plaintiff fails to rebut the legitimate,
nondiscriminatory reason for her termination.101
Defendant argues Plaintiff cannot sustain a claim under the EPA because all servers were
paid the same rate.102 Defendant contends there is no pay difference to support an EPA violation
94 Id.
95 Id.
96 Id. at 22.
97 Id. at 23.
98 Id.
99 Id.
100 Id. at 23–24.
101 Id. at 24–25.
102 Id. at 25.
because all servers were paid minimum wage under the Fair Labor Standards Act.103 Defendant
avers the EPA looks to equal wages for work, not equal gratuities.104 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.105 Defendant asserts, considering the uncertain factors involved
with tips, it is impossible to cast tips as “wages” for the purposes of an EPA claim.106 Defendant
avers Plaintiff cannot prove her burden of showing that Defendant willfully violated the EPA in
order to apply the three-year limitation period.107
Defendant argues Plaintiff has no viable claim for retaliation.108 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.109 Defendant avers
Plaintiff has no competent summary judgment evidence to show these transgressions adversely
impacted her employment.110 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.111 Defendant maintains there is no evidence the sole
103 Id. at 26.
104 Id.
105 Id. at 27.
106 Id.
107 Id.
108 Id. at 28.
109 Id.
110 Id.
111 Id.
decisionmaker, Rodriguez, terminated Plaintiff’s employment because she complained about
Hughes.112 Defendant asserts Plaintiff’s claims should be dismissed.113
B. Plaintiff’s Arguments in Opposition to the Motion for Summary Judgment
In opposition, Plaintiff argues the evidence demonstrates genuine issues of material fact
regarding Plaintiff’s reverse race discrimination claims.114 Plaintiff contends she was replaced by
employees outside of her protected class, including African American coworkers such as Lena
Perry.115 Plaintiff contends she received fewer table assignments while other non-white employees
were treated more favorably.116 Plaintiff contends she was terminated without any progressive
discipline or formal written warning, contrary to Defendant’s practices.117 Plaintiff avers other
coworkers were not subjected to the same harsh penalties for similar or lesser conduct.118 Plaintiff
states that Hartman admitted Plaintiff’s termination was largely based on Lena Perry’s reaction
not the content of the comment itself.119 Plaintiff contends Rodriguez declared that any comment
about Perry’s hair was racial based on Perry being African American.120 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.121
112 Id. at 28–29.
113 Id. at 29.
114 Rec. Doc. 79 at 6.
115 Id. at 9.
116 Id.
117 Id.
118 Id.
119 Id.
120 Id.
121 Id.
Plaintiff argues any non-discriminatory reason for Plaintiff’s discharge is pretextual.122
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.123 While it
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.124 Plaintiff argues she can
prevail under the mixed-motive theory because Plaintiff contends her race was a motivating factor
in termination.125 Plaintiff contends Rodriguez’s presumption that any comment to an African
American coworker was racial regardless of intent reveals race-based bias.126
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, 2022.127 Plaintiff avers Defendant shifted its
justification for Plaintiff’s termination from racial slurs, to emotional impact, to insubordination,
which Plaintiff argues demonstrates a lack of consistency and credibility.128 Plaintiff provides that
a jury could reasonably conclude Defendant exaggerated its concerns and the true reason for
Plaintiff’s termination was her race.129
122 Id.
123 Id. at 10.
124 Id.
125 Id.
126 Id.
127 Id.
128 Id. at 11.
129 Id.
Plaintiff argues Defendant’s failure to investigate undermines the credibility of the decision
to terminate her.130 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.131
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.132 Plaintiff provides the next
and final mention of Perry’s hair occurred on March 29, 2022, prompting Perry’s sudden
reaction.133 Plaintiff disputes claims that she made daily comments to Perry and states that she
apologized to Perry.134 Based on this, Plaintiff avers a jury may determine her termination was not
based on any legitimate, nondiscriminatory reason.135
Regarding timeliness, Plaintiff argues the evidence demonstrates genuine issues of material
fact regarding equitable tolling of the 90-day limitations period.136 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.137 Plaintiff provides the EEOC
transferred her charge to the Louisiana Commission on Human Rights (“LCHR”) on April 10,
130 Id. at 12.
131 Id.
132 Id. at 14.
133 Id.
134 Id.
135 Id.
136 Id. at 15.
137 Id. at 16.
2023, and the EEOC issued a Right to Sue letter on December 7, 2023, while the LCHR continued
to actively investigate the matter.138 Plaintiff avers this overlap created the reasonable impression
that the matter was still pending and that a decision had not been finalized.139 Plaintiff argues that
a September 28, 2023 email to the EEOC investigator, Kory Fascio, shows technical issues with
accessing the portal.140 Plaintiff contends the EEOC’s notification was ambiguous, and Plaintiff’s
attorney continued to follow up with emails and phone calls, which were not returned.141
Plaintiff argues the evidence demonstrates disputes of material fact regarding Plaintiff’s
ADA claims.142 Plaintiff contends her sleep disorder is a qualified disability under the ADA.143
Plaintiff states she was scheduled for a 10-hour shift on March 16, 2022, which began at noon in
disregard of Plaintiff’s request for accommodation, and she was later fired on March 30, 2022.144
Plaintiff asserts there is a question of fact in dispute as to whether the proximity between the shift
and her termination establishes pretext.145
Plaintiff argues the evidence demonstrates genuine issues of material fact in dispute
regarding her EPA claim.146 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.147 While
138 Id.
139 Id.
140 Id.
141 Id. at 17.
142 Id. at 18.
143 Id. at 19.
144 Id. at 20.
145 Id.
146 Id. at 21.
147 Id. at 22.
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.148 Plaintiff asserts
the distribution of table assignments is directly linked to Plaintiff’s claim that Defendant violated
the EPA.149 Plaintiff avers Defendant’s contention that tips do not constitute wages is
unsupported.150
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.151 Plaintiff argues the failure to preserve or produce this
evidence warrants an adverse inference of discriminatory intent and unequal pay.152
C. Defendant’s Arguments in Further Support of the Motion for Summary Judgment
In reply, Defendant points out that Plaintiff failed to address several undisputed issues of
material fact.153 Defendant argues Plaintiff fails to establish grounds for equitable tolling.154 While
the Court previously denied Defendant’s first motion for partial summary judgment, 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.155 According to Defendant, Plaintiff and her
148 Id. at 22–23.
149 Id. at 23.
150 Id. at 23–24.
151 Id. at 24.
152 Id.
153 Rec. Doc. 83 at 1.
154 Id. at 3.
155 Id. at 3–4.
counsel stated they did nothing to access the document between December 7, 2023 and March 28,
2024.156 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.157 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.158 Defendant asserts the
Court must reject Plaintiff’s contention that her counsel, a ten-year employment attorney, was
confused after requesting a Notice of the Right to Sue.159 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, 2023.160
Defendant reiterates that Plaintiff cannot withstand summary judgment on Count 1 (race
discrimination claim).161 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.162 Defendant avers Plaintiff fails to identify any African American workers
who purportedly replaced her.163
156 Id. at 4.
157 Id.
158 Id.
159 Id.
160 Id. at 5.
161 Id.
162 Id.
163 Id. at 6.
Defendant argues Plaintiff fails to identify a comparator outside of her protected class who
was treated more favorably.164 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.165
While Plaintiff states she was terminated without progressive discipline or formal warning,
Defendant avers none of Plaintiff’s cited testimony supports this contention.166 Defendant explains
employers are not required to follow progressive discipline or issue written warning prior to
terminating an at-will employee.167 Defendant contends Plaintiff fails to show any bad faith of
Rodriguez, the sole decisionmaker, who is the same race as Plaintiff.168 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.169
Defendant argues Plaintiff fails to show that Defendant’s legitimate, nondiscriminatory
reasons for Plaintiff’s termination were pretext for race discrimination.170 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.171 Defendant states Hartman gave
164 Id.
165 Id.
166 Id. at 7.
167 Id.
168 Id. at 8.
169 Id.
170 Id.
171 Id. at 8–9.
the statement to Rodriguez, who spoke to Perry and another employee, which ultimately led to
Plaintiff’s termination.172
Defendant argues Plaintiff only offers self-serving testimony to support her contentions.173
Defendant contends Plaintiff simply disagrees that she should have been fired, but Plaintiff fails
to produce evidence to contradict the legitimate reasons offered for her termination.174 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.175 Defendant avers
Plaintiff fails to address the other reasons for her termination such as gossiping and speaking
negatively about her manager to customers.176
Defendant reiterates Plaintiff fails to establish that but for her race, she would not have
been terminated.177 Defendant contends no reasonable jury could find that Rodriguez, who is
Caucasian, terminated Plaintiff, who is also Caucasian, based on her race.178
Defendant argues Plaintiff fails to show that she was a qualified individual after she worked
at Landry’s.179 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
172 Id. at 9.
173 Id.
174 Id.
175 Id. at 10.
176 Id. at 11.
177 Id.
178 Id.
179 Id. at 12.
and whether Plaintiff can recover back pay and front pay.180 Defendant contends there is no
genuine issue of material fact in dispute, because Defendant accommodated Plaintiff’s disability
and the restrictions in her doctor’s note.181 Defendant avers Plaintiff’s doctor’s note did not restrict
shifts that began in the afternoon.182
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.”183 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.”184 All reasonable inferences are drawn in favor of the nonmoving
party.185 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.”186
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
180 Id.
181 Id.
182 Id.
183 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
184 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)).
185 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves, 530 U.S. at
150).
186 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
matter of law.187 The nonmoving party may not rest upon the pleadings.188 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.189
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.190 “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.”191 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.192 The nonmoving party must set forth
“specific facts showing the existence of a ‘genuine’ issue concerning every essential component
of its case.”193
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,
187 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)).
188 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
189 See id.; Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
190 Celotex Corp., 477 U.S. at 323.
191 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (internal citation omitted).
192 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
193 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
by unsubstantiated assertions, or by only a scintilla of evidence.”194 Moreover, the nonmoving
party may not rest upon mere allegations or denials in its pleadings.195
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 in dispute 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
Notice of Right to Sue from the EEOC.196 “[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.”197 The
Fifth Circuit has recognized that “when the date that the letter is actually received is unknown or
194 Little, 37 F.3d at 1075 (internal citations and quotation marks omitted).
195 Morris, 144 F.3d at 380.
196 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).
197 Bowers v. Potter, 113 F. App’x 610, 612 (5th Cir. 2004).
is in dispute, we will, like other courts, presume that the letter was received within three to seven
days after it was mailed[.]”198
The deadline for filing is not a jurisdictional requirement, and the limitation statute is
subject to estoppel and equitable tolling.199 “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.’”200 However, these equitable doctrines “are to be applied sparingly.”201 The plaintiff bears
the burden of demonstrating entitlement to tolling or estoppel.202
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
rights.”203 However, this list is not exhaustive, and the Fifth Circuit has opined that there may be
other bases that warrant equitable tolling.204
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,
198 Id. at 612–13.
199 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)).
200 Id. (quoting Amburgey v. Cohart Refractories Corp., 936 F.2d 805, 810 n. 14 (5th Cir. 1991)).
201 Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
202 Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th Cir. 2002) (internal citations omitted).
203 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)).
204 Melgar., 931 F.3d at 381 (citing Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999)).
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 Defendant’s intentional concealment; or (3) that the EEOC misled her about
the nature of her rights.205 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.206 Plaintiff bears the burden of demonstrating the basis for tolling the limitations
period.207
The Court gave Plaintiff additional time to conduct discovery on alleged technical
difficulties with accessing the EEOC portal.208 Despite this opportunity, Plaintiff has failed to
present any additional evidence that would support her argument for equitable tolling. The
evidence presented is insufficient to meet Plaintiff’s burden, and Plaintiff has not demonstrated
that equitable tolling applies. As such, Plaintiff’s claims under Title VII for hostile work
environment, reverse racial discrimination, retaliation, and disability discrimination under the
ADA must be dismissed as untimely.
205 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).
206 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)).
207 Ramirez v. City of San Antonio, 312 F.3d 178, 184 (5th Cir.2002).
208 Rec. Doc. 17.
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.”209 “Unlike Title VII, the burden of persuasion may shift from
the plaintiff to the defendant in a suit under the Equal Pay Act.”210 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.”211 To make out a prima facie
case under the Equal Pay Act, a plaintiff must show: (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.”212 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.”213
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
209 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)).
210 Jones v. Flagship Intl., 793 F.2d 714 (5th Cir. 1986).
211 King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 723 (5th Cir. 2011) (citing Siler–Khodr, 261 F.3d at
546).
212 Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993).
213 Jones, 793 F.2d at 722 (quoting Corning Glass Works, 417 U.S. at 197, 94 S.Ct. at 2223).
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.”214 “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.”215 Plaintiff has not alleged that tips were pooled by the employer and later
unequally distributed to employees based on sex or race.216 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
amount, are matters determined solely by the customer.”217 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 receive much less from several tables. The Court, drawing
214 29 C.F.R. § 1620.10.
215 29 C.F.R. § 531.52.
216 See e.g., Morgan v. SpeakEasy, LLC, 625 F. Supp. 2d 632 (N.D. Ill. 2007).
217 29 C.F.R. § 531.52.
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.
C. Motion for Sanctions
Plaintiff filed a Motion for Sanctions, arguing sanctions should be imposed against
Defendant for failing to preserve the above-referenced POS data. A federal court has the inherent
power to sanction a party who has abused the judicial process.218 The spoliation of evidence is one
such abuse.219 Spoliation is the “destruction or material alteration of evidence or the failure to
preserve property for another's use as evidence in pending or reasonably foreseeable litigation.”220
Destroying or altering evidence, however, does not necessarily mean that the party has engaged in
sanction-worthy spoliation. Instead, the Court must first find the existence of a duty to preserve
the information, a culpable breach of that duty, and resulting prejudice to the innocent party.221
The party seeking the spoliation sanction bears the burden of proof.222 In order to satisfy the
prejudice requirement, the party seeking sanctions must demonstrate that the missing or altered
evidence would have been relevant to her case.223 “[L]ost or destroyed evidence is ‘relevant’ if a
‘reasonable trier of fact could conclude that the lost evidence would have supported the claims or
defenses of the party that sought it.’224 For the reasons stated herein, production of the POS data
218 Chambers v. NASCO, 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).
219 Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 611 (S.D.Tex.2010).
220 Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.2001) (citing West v. Goodyear Tire & Rubber
Co., 167 F.3d 776, 779 (2d Cir.1999)); Black's Law Dictionary 1531 (9th ed. 2009).
221 Rimkus, 688 F.Supp.2d at 612, 615–16; Victor Stanley v. Creative Pipe, Inc., 269 F.R.D. 497, 520–21
(D.Md.2010).
222 Rimkus, 688 F.Supp.2d at 615–16.
223 Rimkus, 688 F.Supp.2d at 616.
224 Victor Stanley v. Creative Pipe, Inc., 269 F.R.D. 497, 531 (D.Md.2010)(quoting Thompson v. U.S. Dep't
of Housing & Urban Dev., 219 F.R.D. 93, 101 (D.Md.2003)).
would not have supported Plaintiff's EPA claim. As such, the Court denies the Motion for
Sanctions.
V. Conclusion
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, and thus, summary judgment is appropriate.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment”? is
GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Motion for Sanctions””° is DENIED.
NEW ORLEANS, LOUISIANA, this _22Cday of July, 2025.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
225 Rec. Doc. 66.
26 Rec. Doc. 67. The Court also denies Defendant’s request for attorney’s fees.
30