Trest

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TRACY TREST CIVIL ACTION

VERSUS

AIDS HEALTHCARE FOUNDATION NO. 23-01280-BAJ-SDJ

RULING AND ORDER

Before the Court is Defendant AIDS Healthcare Foundation’s (“AHF”) Motion

for Summary Judgment (Doc. 88). Plaintiff opposes the Motion. (Doc. 86; Doc. 97).

Defendant filed a Reply Brief. (Doc. 95). For the reasons stated below, Defendant’s

Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This is an employment discrimination case. (Doc. 50). Plaintiff alleges that her

former employer, Defendant AHF, discriminated and retaliated against her based on

her sex and gender, disability, and age under Title VII of the Civil Rights Act

(“Title VII’), the Americans with Disabilities Act (“ADA”), and_ the

Age Discrimination in Employment Act (“ADEA”). (Ud. at § 17). Plaintiff also alleges

that Defendant engaged in reprisal against her in _ violation of the

Louisiana Whistleblower Statute (““LWS’).

A. The Business of Defendant.

AHF is a global nonprofit organization providing HIV care and services to those

in need. (Doc. 838-1 § 1; Doc. 86-1 4 1; Doc. 88-4 | 4). AHF generates new, innovative

of treating and addressing barriers to care for its clients through a network of

pharmacies, thrift stores, health and wellness centers, affordable housing locations,

and food-service programs. (Doc. 88-1 § 2; Doc. 86-1 § 2; Doc. 83-4 § 4). Founded in

1987, AHF began as a network of hospices committed to fighting for the living and

caring for the dying. (Doc. 83-1 3; Doc. 86-1 § 3; Doc. 83-4 { 4). Since then, AHF has

expanded, turning hospices into healthcare centers, and “building a new paradigm

for HIV care both in the United States and around the world.” (Doc. 83-1 4;

Doc. 86-1 § 4; Doc. 83-4 { 4).

AHF operates a facility off of Bluebonnet Road in Baton Rouge, which includes

a pharmacy and medical office. (Doc. 83-1 ¢ 5; Doc. 86-1 § 5). AHF’s Bluebonnet

pharmacy (the “Pharmacy”) is managed by the Pharmacy Manager, also known as a

Pharmacist-In-Charge or “PIC,” the role in which Plaintiff worked for Defendant.

(Doc. 838-1 § 6; Doc. 86-1 § 6).

B. Plaintiff's Prior Work Experience.

After honorable service in the United States Department of the Navy, Plaintiff

worked in pharmacies in Texas, Alabama, and Louisiana for approximately thirty

years. (Doc. 86-1 { 1; Doc. 95-1 § 1). After moving from Alabama to Louisiana,

Plaintiff applied for job with Defendant. (Id.).

C. Plaintiffs Application and Interview Process with Defendant.

Plaintiff submitted an application to Defendant. (Doc. 86-1 § 2; Doc. 95-1 { 2).

Thereafter, District Pharmacy Director Andrew Killeen and Medical Director

Dr. Waref Azmeh interviewed, and ultimately hired, Plaintiff. (/d.).

D. Plaintiff's Employment with Defendant.

On June 1, 2021, Plaintiff began employment with Defendant as a Pharmacy

Manager or “PIC” in the Pharmacy. (Doc. 86-1 § 3; Doc. 95-1 3). Simone Mack

worked with Trest as the second pharmacist at the Pharmacy. (Doc. 88-1 § 7;

Doc. 86-1 7). Later, Mack replaced Plaintiff as the PIC. (/d.).

Plaintiff held the PIC position from her hiring in June 2021 through

November 22, 2022. (Doc. 83-1 4 6; Doc. 86-1 § 6). Plaintiff excelled as a pharmacist

with Defendant, including receiving a salary raise and bonus. (Doc. 86-1 4 22;

Doc. 95-1 {| 22).

The parties agree that Killeen supervised Plaintiff, but dispute whether

Dr. Azmeh also supervised Plaintiff. (Doc. 86-1 4 6; Doc. 95-1 § 6). The parties also

dispute whether Dr. Azmeh had control over the Pharmacy. (Doc. 86-1 {[ 8; Doc. 95-1

{ 8).

E. Ages of Relevant Parties.

Plaintiff was 58 years old when she began working for Defendant. (Doc. 86-1

4; Doc. 95-1 § 4). Killeen is 40 years old. (Doc. 86-1 4 2; Doc. 95-1 § 2). Dr. Azmeh

is 85 years old. (d.).

F. Plaintiffs Disability.

Plaintiff was diagnosed with Giant Cell Arteritis (“GCA”) by her

rheumatologist, Dr. Ronald Ceruti. (Doc. 86-1 § 10; Doc. 95-1 § 10). Plaintiff describes

GCA as an “inflammatory condition affecting the blood vessels in [Plaintiffs] neck,

head, and eyes.” (Doc. 86-1 § 11). Plaintiff explains that GCA causes “flares,” meaning

instances where the blood vessels in her neck, head, and eyes enlarge. (Doc. 86-1

{ 12). During a flare, Plaintiff faces headaches, vision impairment, and potential

death. (/d.). Plaintiff contends that GCA affects her major life activities of seeing,

working, standing, moving, and living. (Doc. 86-1 § 18).

Defendant disputes whether Plaintiff actually has GCA, relying on Dr. Ceruti’s

deposition testimony. (Doc. 37-26 at 21:18—22:10).

G. Alleged Workplace Issues,

The parties’ briefing focuses on alleged discriminatory conduct in August,

September, October, and November 2022. The Court will address the events of each

month in turn.

i. August 2022 Complaint.

On August 22, 2022, Plaintiff emailed Killeen to describe, in detail, an issue

regarding a patient’s prescription and co-pay. (Doc. 83-10). Also in that email,

Plaintiff described the “adversarial and divisive work environment” that Dr. Azmeh

and Jessica Gros, AHF Practice Manager, created for the Pharmacy team (the

“August 2022 Complaint”).! (Doc. 83-10; see also Doc. 83-33). Plaintiff stated:

I am writing this email to inform you about the most recent events that

involve the office manager , Jessica Gros , and the Medical Director , Dr.

Azmeh. The incidents that I will include go to a larger pattern of

bullying by Jessica Gros and has created a very hostile work

environment for me and all of my staff. Jessica Gros leverages a close

relationship with Dr Azmeh , which has allowed her behavior to go

unchecked and has created an adversarial and divisive work

environment for the pharmacy team. I can not remain silent any longer

and must ask that measures be taken to remedy the situation .

1 Beth Sincere, Plaintiff's co-worker, heard the phrase at the Pharmacy, “Dr. Azmeh is God

and Jessica is the voice of God.” (Doc. 86-1 4 9; Doc. 95-1 {| 9).

(Doc. 838-10 at 2).?

After explaining the prescription and co-pay issue, Plaintiff indicated:

The above 2 examples are my direct experience but go to a larger pattern

of behavior that involves everyone in the pharmacy. and creates a hostile

and divisive environment. Simone has had Jessica say that there is no

accountability in the pharmacy when she sought clarification regarding

a patient’s medication. Both Dr. Azmeh and Jessica have directed

operational complaints regarding the pharmacy in an aggressive and

insulting way that has created stress and distress for Simone.

Ud. at 3).

Plaintiff also described her concern regarding a phone call that Dr. Azmeh

allegedly made to Killeen on August 18, 2022, in which Dr. Azmeh allegedly stated

that he did not like the way that Plaintiff talked to his staff. Ud.). Thus, Plaintiff

stated:

I am a decorated veteran of Desert Storm and have been a pharmacist

for over 20 years. I have never , in this time frame, had my professional

reputation and/or performance questioned . Per our conversation, I

understand that Dr. Azmeh stated to you that he did not like the way I

talked to his staff. I am going to ask for proof of that accusation. I have

a right to ask documentation of who, when and discussions with me that

Dr Azmeh has had or observed directly. That will not be forthcoming as

it does not exist. If Dr. Azmeh is referring to the incident with Jessica,

he was not present at either interaction I had with her on Wednesday.

He has not spoken to me at all to hear my side things. He has gone to

my supervisor with untruths and one sided representation. This falls

squarely in category of defamation of character and libel/slander. This

is detrimental to my professional reputation that is unfounded. I will

not let that stand! have retained legal council regarding these issues in

the hope that it is overkill and not needed.I am more than happy to

communicate with both them regarding patient care as long as the

communication is bilatterally respectful and professional. However , I

do want a sustained change in the way the pharmacy staff is treated by

these two individuals, I want the accusation against me either proven

or retracted both verbally and in any written communication it has

2 The text included in each of the communications throughout this Ruling are copied verbatim

from the documents in the record.

appeared in and do not want any perceived retaliation against myself or

my team because I am voicing these concerns. If this cannot be

accomplished , I will escalate to an official HR complaint and/or pursue

this legally outside of AHF.

(Id. at 3-4).

After Plaintiffs August 2022 complaint, Dr. Azmeh did not speak to Plaintiff

regarding patient care or Pharmacy operations. (Doc. 83-1 { 19; Doc. 86-1 4 19).

Instead of speaking with Plaintiff, Dr. Azmeh spoke to Mack regarding patient care

and Pharmacy operations. (Doc. 83-1 4 20; Doc. 86-1 § 20).

ii. September 2022 Incident.

On the morning of September 2, 2022, Trest emailed Killeen, stating that she

submitted a request for vacation time from September 30 to October 7, 2022.

(Doc. 83-1 § 27; Doc. 86-1 | 27). Killeen responded: “Is there any flexibility with your

dates? This is the exact same time everyone will be in Los Angeles training for

ScriptMed so we don’t have anyone to fill in.” (Doc. 83-8 at 4). Throughout the day,

Plaintiff and Killeen exchanged several emails and text messages regarding

Plaintiffs request for vacation time. (Doc. 88-8; Doc. 83-9 at 111-117). Over text

message, Killeen explained that he understood Plaintiffs frustration regarding the

vacation request, but stated, “I just don’t have a lot of options or wiggle room.”

(Doc. 83-9 at 112).

Later, on September 15, 2022, Killeen emailed Trest:

Roshy and I have tried all options to find you covered but all of our

resources are unavailable with [] training. We could offer [Mack] remote

help (Bobbi [Crouch] will be busy all week too for [the training]) or we

can move it 1 week further and have coverage. What would you both like

to do?

(Doc. 83-8 at 7). Plaintiff responded:

I appreciate that! I am going to withdraw my request. I cancelled my

plans when you said there was no coverage previously. Looking at my

timeline of things we need to do for the rollout [], I think it will be in

everyone’s best interest to just cancel the request. I really appreciate

both you and Roshy trying to cover it. That means a lot!

(Id. at 6—7). In her briefing, Plaintiff contends that she was forced to rescind her

vacation request due to allegedly insufficient coverage for the days she would be on

vacation leave, but argues that she had worked alone in the Pharmacy while Mack

was on vacation on a previous occasion. (Doc. 86-1 § 30).

Defendant submitted an Excel report showing each of Plaintiffs time off

requests and the resolution of same. (Doc. 83-29; Doc. 91). It is undisputed that apart

from one other request in July 2022 that is not an issue in this case, Killeen approved

every single one of Plaintiffs requests for time off, including those after her

September 2, 2022 request. (Doc. 83-1 { 34; Doc. 86-1 ¢ 34). Plaintiff qualifies that

she sent two follow-up inquiries regarding a June 2022 vacation request that went

unanswered but otherwise admits this fact. (/d.).

Also on September 2, 2022, in the same email thread titled “Vacation 09.30-

10.07,” Plaintiff requested time off to attend doctors appointments on

September 6, 7, and 30, 2022. (Doc. 88-1 § 35; Doc. 86-1 { 35). Responding to an email

in which Killeen explained the distinction between sick time and paid time off,

Plaintiff stated:

I will take a look at my sick time... I have been working with a major

flare of my Giant Cell Arteritis and one of my eyes is completely shut. I

am having a pet scan on Tuesday and may take a few days. I have no

vision in my right eye and chest pain. Being evaluated for GCA necrosis

in my AAA and military disability. Will keep you updated.

(Doc. 83-8 at 2). In the next hour and a half, Plaintiff sent another email to Killeen

stating that she needed to go to the “retinologist” in New Orleans, and as a result,

Plaintiff requested to take off work the following Monday through Wednesday,

September 5 through 7, 2022. (/d.).

Killeen responded, “Since this is outside of our PTO policy, I will not be able to

provide coverage.” (Id. at 1). Plaintiff responded that she was “taking sick time” and

would let Mack know. (/d.). Killeen responded, “I understand you are upset about

your vacation request but I feel this is not appropriate behavior. PTO requests are

just that, requests. I will try to find [Mack] remote help while you are out but it will

be unscheduled sick time in ADP.” (Id.). While Killeen initially stated in his email to

Plaintiff that her request would be identified as “unscheduled sick time,” those days

were in fact coded as “Scheduled Sick” days, meaning that Plaintiff was fully paid for

those days. (Doc. 83-6 at 4, 7).

Also on the same day, September 2, 2022, Plaintiff texted Killeen: “I am having

surgery tomorrow. About to have an aneurysm. Not going to wait, so will keep [you]

posted[.]” (Doc. 83-9 at 113). In response to a series of text messages from Plaintiff

raising concern about how to handle the process of properly recording her sick time,

Killeen texted Plaintiff: “Things come up and that’s why we have sick pay. This was

just brought up right after we were talking about your vacation time so I didn’t

understand the urgency but please take care of yourself[.]” dd. at 116). Killeen also

told Plaintiff: (1) “[P]lease take the time you need and I'll check in on you in a couple

days for a game plan. Don’t worry about work”; (2) “[F]ocus on your health. We can

figure it [whether Plaintiff needed to complete an official form for sick time] out later”;

and (3) when Plaintiff continued to ask, “I will send you the attendance policy but I

don’t think this is a priority right now.” Ud. at 113-17).

Then, on September 7, 2022, Plaintiff sent a text message to Killeen stating, “I

will be back at work tomorrow. I have my doctor release form.” ([d. at 117).

Later on September 7, 2022, Killeen asked Plaintiff if she was at work on

August 29, 2022. (Id.). Plaintiff stated that she was at work, but left early. (/d.). The

two exchanged the following messages, with Killeen’s texts in dark gray and

Plaintiffs in light gray:

| did leave early

UT EE □□□□□□□□□□□□□□□□□□□□□□□□ |

| thought | did put it in. | left

around 12:15

| came in at 7:50

lam sorry i was not well and had

pounding headache for a week.

My right eye was swollen and

obviously had other health issues

at play. My apologies

AOU eI [eke fel cele eianl=) sel) feliaye)’

Ws ss

| understand and apologize for the

inconvenience

(0) =).d ofezel ccle] ce) Wie) a.<\V,e\0)

Uviae □□□ Vecsey colin) dares

aAlutss ofey efe)accve] lave) <[e]e)cel"(-10|

Okay

(Doc. 838-9 at 118).

In this litigation, Plaintiff argues that Killeen disciplined Plaintiff for leaving

work early on August 29, 2022, threatened future discipline for “further incidents” if

she did not “check with him” before leaving work, and threatened that her conduct

could be considered abandonment of her job. (Doc. 83-6 { 44). Plaintiff contends that

Defendant barred her from leaving work early, including on occasions when she was

undergoing a flare and needed treatment, unless Killeen was aware of the “schedule

change.” (Id.). Defendant, contrarily, contends that Killeen’s counseling of Plaintiff

regarding the August 29, 2022 incident did not constitute a reprimand or formal

discipline of any kind. (Doc. 83-1 52).

For ease of reference, the Court will summarily refer to the above facts as the

“September 2022 incident.”

iii, Alleged October 2022 Verbal Complaint.

The parties dispute whether Plaintiff made an October 2022 Complaint.

Plaintiff relies on her own deposition testimony to assert that she verbally reported

Dr. Azmeh’s alleged age-based comments to Killeen and Sandyann Munroe of

Defendant's Human Resources Department sometime during October 2022.

(Doc. 86-1 §] 85-86).

Defendant filed a Declaration from Munroe attesting that each of her

communications with Plaintiff were via email rather than phone call. (Doc. 95-10 {| 3).

Munroe further attested that whenever an employee calls to make a complaint, it is

her process to follow up with the employee via email to confirm the details of the call

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so that the content of the call is in writing. (Id. J 4). Thus, if Plaintiff had called

Munroe, Munroe attests that she would have followed up with Plaintiff via email to

confirm the details of the phone call. Ud. § 5). Munroe has no record of an

October 2022 call or complaint from Plaintiff. (Id. { 6). Defendant acknowledges that

Munroe received an October 2022 email from Killeen about Plaintiffs complaints.

(Doc. 95 at 5).

For ease of reference, the Court will summarily refer to the above as the

“Alleged October 2022 Verbal Complaint.”

iv. November 2022 Complaint.

On November 8, 2022, Plaintiff emailed Killeen and described an incident with

Dr. Azmeh as follows:

Dr Azmeh just came into the pharmacy and aggressively told me that | was not to send emails about this issue.

| started to state that due to the massive miscommunication about this patient last time | was going to email

everything to be clear with everyone. He cut me off rudely and told me that he was giving him a month, which

still does not fix the problem. and | was not to email anything else | object to being spoken to in this way in □

front of my staff . It is unprofessional and bullyish. There is absolutely nothing wrong with emailing that

information as | suspect anything | said and did last time was misrepresented by him to others including

yourself . When this issue occurred last time you said that | needed to come to you and | am . Do the medical

directors honestly have no standards of behavior? | do not ask that he like me. | do not like him. However, |

am not allowed, nor would | speak to him that disrespectfully. He is out of line and | am officially complaining

about his behavior.

(Doc. 83-11 at 5).

In response, Killeen recommended that Plaintiff seek advice from Human

Resources. (Id. at 4). Plaintiff responded to Killeen: “I am seeking the advice of my

attorney. HR did nothing last time so I will go elsewhere.” (Id.).

Two days later, on November 10, 2022, Defendant opened an investigation into

Plaintiffs Complaint. (Doc. 83-12 at 1). Defendant filed its Human Resources

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“Investigation Record” into the record of this case. (Doc. 83-12). The Investigation

Record indicates that Theresa Waters-Dunston, Defendant’s Associate Director of

Human Resources, conducted the investigation. (/d. at 1). Waters-Dunston

interviewed Plaintiff and Pharmacy staff. (Id.). The Investigation Record included

the following Summary and Findings:

Summary and Findings:

The investigation did not support allegations of unlawful discrimination based on age/hostile

work environment as reported by Tracy Trest. However, based on the investigative interviews

the investigation does support that there is a culture of hostility (not associated with unlawful

discrimination or age), aggression, lack of respect, lack of trust, blame, unprofessionalism and

inappropriate conduct and behavior demonstrated by Dr. Azmeh and Jessica directed towards

the pharmacist. This behavior is witnessed by the pharmacy technicians and is a pattern of

behavior that is ongoing and has created an environment where pharmacy staff remain on edge

waiting and anticipating the next outburst by Dr. Azmeh (primarily) or Jessica. This has created

a barrier for a mutually beneficial working relationship between the HCC and the pharmacy, as

required by AHF on behalf of our patients. Below is a summary of the evidence gathered during

the investigation.

(Id. at 2).

As a result of the investigation, Waters-Dunston recommended that Defendant

take the following actions:

(1) Have documented conversations with Dr. Azmeh and Gros, including:

(a) making them aware of how their behavior and conduct has created a

negative work environment for the Pharmacy,

(b) reminding them of the Code of Conduct and Employee Conduct and

Workplace policies regarding treating others with dignity and respect,

(c) informing them to immediately stop communicating with Pharmacy

staff by yelling and chastising, and

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(d) completing one or more of Defendant’s trainings regarding effective

communication for employees and _ effective communication for

supervisors;

(2) Remind leadership that Pharmacy has standard operating procedures that

must be adhered to, which may clash with Dr. Azmeh’s expected outcome; and

(3) Encourage Pharmacy and medical department to have routine meetings to

discuss challenges with patient billing, insurance, and medication issues.

(Id. at 1).

Plaintiff argues that although Waters-Dunston interviewed Plaintiff, she

never offered Plaintiff any remedial options to remedy her working environment.

(Doc. 86-1 § 23). Instead, Plaintiff contends that Defendant merely accepted

Plaintiffs resignation. (/d.).

H. Plaintiff's Job Search.

By October 2022, Plaintiff was looking for a new job. (Doc. 83-1 { 53;

Doc. 86-1 § 53). On October 8, 2022, Plaintiff applied for a pharmacist position with

the Ochsner Health System. ([d.). On November 10, 2022, just two days after the

alleged November 8, 2022 interaction between Plaintiff and Dr. Azmeh, Ochsner

offered Plaintiff a pharmacist position. (Doc. 83-1 § 54; Doc. 86-1 4 54). Plaintiff

accepted the position at Ochsner on the same day she received it. (/d.). Also that same

day, Plaintiff notified Defendant of her intent to resign. (/d.).

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II. PROCEDURAL HISTORY

Plaintiff filed suit in the 19th Judicial District Court, East Baton Rouge Parish,

Louisiana. (Doc. 1-1). Thereafter, Defendant removed this matter to the Court,

asserting federal question jurisdiction, 28 U.S.C. § 1331, and diversity jurisdiction,

28 U.S.C. § 1332. Plaintiff then amended her Complaint. (Doc. 50).

Plaintiff asserts the following claims against Defendant AHF:

(1) gender or sex-based discrimination, harassment, and retaliation under

Title VII, 42 U.S.C. § 2000e, et seq.;

(2) disability discrimination, harassment, and retaliation under the ADA,

42. U.S.C. § 12112, et seq.;

(3) age-based discrimination, harassment, and retaliation in violation of the

ADEA, 29 U.S.C. § 623, et seq.; and

(4) Reprisal under Louisiana Revised Statutes § 23:967.

(Doc. 50). Plaintiff seeks liquidated damages under the ADEA, punitive damages

under 42 U.S.C. § 1981a, attorney’s fees, costs, and interest. (/d.).

Defendant filed a motion for partial dismissal, seeking to dismiss Plaintiffs

whistleblower claim. (Doc. 65). The Court granted the Motion in part and denied it in

part, dismissing Plaintiffs claims arising under the Louisiana Whistleblower Statute

based on violations of federal law. (Doc. 114). Plaintiffs claim arising under the

Louisiana Whistleblower Statute based on alleged violations of state law remains.

(Id.).

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III. LEGAL STANDARD

A district court should “grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Funches v. Progressive Tractor

& Implement Co., L.L.C., 905 F.3d 846, 849 (5th Cir. 2018) (“This occurs when a party

fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.”).

For issues on which the movant bears the burden of proof at trial, they “must

come forward with evidence which would entitle [them] to a directed verdict if the

evidence went uncontroverted at trial.” Intl Shortstop, Inc. v. Rally’s, Inc.,

939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the

motion by either countering with evidence establishing a genuine dispute of material

fact, or “showing that the moving party’s evidence is so sheer that it may not persuade

the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at

1265.

Where the nonmovant bears the burden of proof at trial, the moving party must

offer evidence that undermines the nonmovant’s claim or point out the absence of

evidence supporting essential elements of the claim. See Lujan v.

Nat'l Wildlife Federation, 497 U.S. 871, 885 (1990). Once the movant shows

entitlement to judgment as a matter of law, the nonmovant must bring forward

evidence to create a genuine issue of material fact. Giles v. Gen. Elec. Co.,

245 F.3d 474, 493 (5th Cir. 2001). “The evidence of the non-movant is to be believed,

15

and all justifiable inferences are to be drawn in [its] favor.” Darden uv.

City of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018).

IV. DISCUSSION

Defendant moves for summary judgment on each of Plaintiffs claims:

(1) failure to accommodate under the ADA; (2) hostile work environment under

Title VII, the ADA, and the ADEA; (8) disparate treatment under the ADA;

(4) retaliation under Title VII, the ADA, and the ADEA; and (4) reprisal under the

Louisiana Whistleblower Statute.

As a threshold matter, Defendant argues that Plaintiffs claims are time barred

for failure to timely file an EEOC Charge. The Court will first consider the timeliness

of Plaintiffs claims, and then turn to the merits of same.

For the reasons below, the Court finds that a genuine issue of material fact

precludes summary judgment on Plaintiffs hostile work environment claims under

the ADA and the ADEA. The Court finds that summary judgment is warranted in

Defendant’s favor on the following claims: (1) failure to accommodate under the ADA;

(2) hostile work environment under Title VII; (8) disparate treatment under the ADA;

(4) retaliation under Title VII, the ADA, and the ADEA; and (5) reprisal under the

Louisiana Whistleblower Statute.

A. Whether Plaintiff's Claims Are Barred for Failure to Timely File an

EEOC Charge.

Defendant argues that timeliness is a threshold issue in this case. Defendant

asserts that to file under suit under Title VII, the ADA, or the ADEA, Plaintiff must

first file a charge of employment discrimination with the EEOC within 300 days of

16

the occurrence of the alleged discriminatory conduct. (Doc. 90 at 27). Because Plaintiff

filed her EEOC Charge on August 9, 2023, Defendant argues that this 300-day period

extends to October 18, 2022. Ud. at 28). Because Plaintiff bases several of her claims

on events occurring before October 13, 2022, including the August Complaint,

September 2022 Incident, and possibly the Alleged October 2022 Verbal Complaint,

Defendant argues that Plaintiffs claims based on those events are untimely and must

be dismissed.’ Ud. at 27-28).

Plaintiff disagrees, arguing that her claims are not prescribed under the

continuing violation doctrine so long as one harassing act occurs within the 300 days

prior to the filing of an EEOC Charge. (Doc. 97 at 36 (citing Heath v. Bd. of

Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 736 (5th Cir. 2017), as

revised (Mar. 18, 2017)). Plaintiff urges that she need only show one incident of

harassment that occurred on or after October 12, 2022, to “reach back” and include

all acts of harassment. (Doc. 97 at 37).

Before asserting a claim under Title VII, the ADA, or the ADEA, Plaintiff must

exhaust her administrative remedies. 42 U.S.C. § 12117; 42 U.S.C. § 2000e—5(e)(1);

29 U.S.C. § 626(d). Thus, Plaintiff cannot pursue her claims without first having

presented an administrative claim to the EEOC. Butler v. Exxon Mobil Corp.,

3 The parties do not indicate on which day in October Plaintiff made the alleged verbal

complaint, such that it is unclear whether Plaintiffs Alleged October 2022 Verbal Complaint

is time barred. Defendant denies that the verbal complaint happened at all. (Doc. 95-10).

4 The parties appear to dispute whether Plaintiff filed her EEOC Charge on

August 8 or 9, 2023, resulting in the 300-day period extending until either October 12 or

18, 2022. Based on the facts before the Court, however, this appears to be a distinction

without a difference at this time.

17

838 F. Supp. 2d 473, 484 (M.D. La. 2012) (citing McClain v. Lufkin Indus., Inc.,

519 F.8d 264, 273 (5th Cir. 2008)).

The United States Court of Appeals for the Fifth Circuit has emphasized that,

in Louisiana, a plaintiff may only recover for acts occurring within the 300 days

preceding the date she filed her EEOC charge, unless the continuing violation

doctrine applies. Heath, 850 F.3d at 736 (“In states like Louisiana that have ‘an entity

with the authority to grant or seek relief with respect to the alleged unlawful practice,

an employee who initially files a grievance with that agency must file the charge with

the EEOC within 300 days of the employment practice[.]”) (applying

42, U.S.C. § 2000e-5(e)(1)) (additional citations omitted); Tucker □□

United Parcel Serv., Inc., 734 F. App’x 937, 940 (5th Cir. 2018) (describing the

continuing violation doctrine).

The continuing violation doctrine distinguishes between “discrete acts that

form the basis of traditional discrimination claims” and “continuing conduct that

forms the basis of hostile work environment claims.” Heath, 850 F.3d at 737.

Here, it is undisputed that the November 2022 Complaint occurred within the

300 days preceding Plaintiffs EEOC Charge. Defendant argues that the August 2022

Complaint, September 2022 Incident, Alleged October 2022 Verbal Complaint, and

November 2022 Complaint each constitute a “discrete act,” while Plaintiff argues that

the alleged conduct forms a continuing violation, forming the basis for her hostile

work environment claims under Title VII, the ADA, and the ADEA.

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The Fifth Circuit has emphasized:

Claims alleging discrete acts are not subject to the continuing violation

doctrine; hostile workplace claims are. Hostile environment claims are

“continuing” because they involve repeated conduct, so the “unlawful

employment practice” cannot be said to occur on any particular day.

Morgan, 5386 U.S. at 115-17, 122 S.Ct. 2061. As long as “an act

contributing to the claim occurs within the filing period, the entire time

period of the hostile environment may be considered by a court for the

purposes of determining liability.” Id. As one circuit has helpfully

described Morgan’s reasoning, a plaintiff's hostile environment claim “is

based on the cumulative effect of a thousand cuts, rather than on any

particular action taken by the defendant,” so “the filing clock cannot

begin running with the first act, because at that point the plaintiff has

no claim; nor can a claim expire as to that first act, because the full

course of conduct is the actionable infringement.” O’Connor uv.

City of Newark, 440 F.3d 125, 128 (3d Cir. 2006).

Heath, 850 F.3d at 737.

Thus, the conduct at issue may constitute a continuing violation to support

Plaintiffs hostile work environment claims if the conduct at issue survives the

Circuit’s three limitations on the doctrine:

(1) the plaintiff must demonstrate that the separate acts are related;

(2) the violation must be continuing; intervening action by the employer,

among other things, will sever the acts that preceded it from those

subsequent to it; and

(3) the doctrine may be tempered by the court’s equitable powers, which

must be exercised to honor Title VII’s remedial purpose without

negating the particular purpose of the filing requirement.

Tucker, 734 F. App’x at 940 (citing Heath, 850 F.3d at 738; quoting Stewart v.

Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009)).

Turning to the first limitation, Plaintiff must demonstrate that the separate

acts at issue are related. Plaintiff does not specifically describe why she believes the

19

alleged acts are related in her briefing. (See generally Doc. 97). Thus, the Court must

determine whether the November 2022 Complaint was “related” to the August 2022

Complaint, September 2022 Incident, and Alleged October 2022 Verbal Complaint,

as described in Sections (I)(G)(G)—Gii) above, such that the continuing violation

doctrine applies.

After reviewing the facts in detail, the Court finds that Plaintiffs

November 2022 Complaint, which focused on Dr. Azmeh’s alleged wrongful behavior,

is unrelated to the September 2022 Incident regarding Plaintiff's requests for

vacation and sick leave and Killeen’s response to same. (See supra Section (I)(G)(ii)).

Thus, any claims based on the September 2022 Incident, as described in Section

(1)(G)(@ii), are untimely and must be dismissed.

The August 2022 Complaint, Alleged October 2022 Verbal Complaint, and

November 2022 Complaint each concern Dr. Azmeh’s alleged wrongful behavior.

(See supra Sections (1)(G)(i), (iii), and (iv)). Thus, the Court finds that these events

“relate” to one another, as required under the continuing violation doctrine. See

Stewart, 586 F.3d at 329 (finding that pre-and post-limitations period incidents

“related” to one another when they involved the same type of harassment and were

perpetrated by the same manager).

Second, the violations must be continuing, meaning that intervening action by

Defendant, among other things, will sever the acts “that preceded it from those

subsequent to it.” See Tucker, 734 F. App’x at 940. The parties do not sufficiently

5 The Court will address the effect of this Ruling on Plaintiffs individual claims within the

discussions regarding each claim below.

20

address this issue. Accordingly, the Court will permit Plaintiffs claims based on the

August 2022 Complaint, Alleged October 2022 Verbal Complaint, and

November 2022 Complaint to proceed at this time, without prejudice to Defendant’s

right to offer evidence on this issue at trial.

The Court will now analyze each of Plaintiff's claims in turn.

B. Failure to Accommodate Under the ADA.

First, Plaintiff alleges that Defendant failed to accommodate her disability

under the ADA. “Under the ADA, it is unlawful for an employer to fail to

accommodate the known limitations of an employee’s disability.” Clark □□□

Champion Nat'l Sec., Inc., 952 F.3d 570, 587 (5th Cir.), cert. denied sub nom. Clark v.

Inco Champion Nat'l Sec., Inc., 141 S. Ct. 662, 208 L. Ed. 2d 272 (2020) (Gnternal

citations omitted). Plaintiff “must prove the following statutory elements to prevail

in [her] failure-to-accommodate claim: (1) [she] is a qualified individual with a

disability; (2) the disability and its consequential limitations were known by the

covered employer; and (3) the employer failed to make reasonable accommodations

for such known _ limitations.” Id. (citing Feist v. □□□ Deptof Just. Off. of

the Att’y Gen., 780 F.3d 450, 452 (5th Cir. 2018)).

Defendant argues that Plaintiffs failure to accommodate claim is time-barred

because it is based on the September 2022 Incident. (Doc. 90 at 27). The Court has

already found that the September 2022 Incident is not subject to the continuing

violation doctrine, such that Plaintiffs claims arising out of the September 2022

Incident are time barred. (See supra Section (IV)(A)).

21

Plaintiff admits that the events underlying her failure to accommodate claim

occurred in September 2022, more than 300 days before Plaintiff filed her EEOC

Charge. (Doc. 97 at 48). Plaintiff attempts to save her failure to accommodate claim,

however, by arguing that Defendant failed to engage in the interactive process from

September to November 2022 by prohibiting Plaintiff from leaving work early unless

Killeen, her supervisor, was aware of the schedule change.® (Doc. 97 at 48).

The law is clear that “[fliling a timely charge is a prerequisite to having an

actionable claim.” Pullen v. St. Gabriel Health Clinic Inc., No. CV 25-52-JWD-EWD,

2026 WL 499596, at *10 (M.D. La. Feb. 23, 2026) (citing Santos v.

Baton Rouge Water Works Co., No. 18-1098, 2021 WL 1227875, at *11

(M.D. La. Mar. 31, 2021) (deGravelles, J.) (quoting Stewart, 586 F.3d at 328). The

Fifth Circuit has held that “[flailure to exhaust is not a procedural ‘gotcha’ issue. It

is a mainstay of proper enforcement of [federal] remedies.” McClain, 519 F.3d at 272.

Consequently, the Circuit has instructed that courts must dismiss any claims where

a plaintiff fails to show administrative exhaustion. See id. at 273 (“Courts should not

condone lawsuits that exceed the scope of EEOC exhaustion, because doing so would

thwart the administrative process and peremptorily substitute litigation for

conciliation.”). Because Defendant allegedly failed to accommodate Plaintiff in

6 Plaintiff argues that, “Defendant’s failure to engage in the interactive process continued

through her constructive discharge, namely evidenced by [D]efendant’s unilateral prohibition

on [Plaintiff] from leaving work early, including for instances where she was undergoing a

flare and needed treatment unless Killeen was aware of the ‘schedule change.” (Doc. 97 at 43

(emphasis added)).

22

September 2022, outside of the 300-day window, Plaintiffs failure to accommodate

claim must fail.

Plaintiffs argument that Defendant failed to engage in the interactive process

by requiring Plaintiff to notify Defendant when she planned to leave the Pharmacy

early due to a flare does not persuade otherwise. The undisputed evidence shows that

apart from one other request in July 2022 that is not an issue in this case, Killeen

approved every single one of Plaintiffs requests for time off, including those after her

September 2, 2022 request.” (Doc. 83-1 4 34; Doc. 86-1 | 34). The record reflects that

when Plaintiff took time off from work, Killeen coordinated coverage for the

Pharmacy. Thus, Plaintiffs seeming desired accommodation—that she, the

Pharmacist in Charge, be permitted to come and go from the Pharmacy without

notifying her supervisor—is unreasonable, especially because Plaintiff alleges that

Defendant has legal obligations regarding the availability of a pharmacist in the

Pharmacy. The law only requires Defendant to make reasonable accommodations.

See E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 613-14 (5th Cir. 2009)

(citing 42 U.S.C. § 12112(b)(5)(a)) “The ADA provides that the term ‘discriminate’

includes ‘not making reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability .. . unless such

covered entity can demonstrate that the accommodation would impose an undue

hardship on the operation of the business of such covered entity.”’).

7 Plaintiff qualifies this fact by emphasizing that she sent two follow-up inquiries regarding

a June 2022 vacation request that went unanswered. (Doc. 83-1 4 34; Doc. 86-1 § 34).

23

Accordingly, Defendant’s Motion is GRANTED in this respect. Plaintiffs

failure to accommodate claim is DISMISSED WITH PREJUDICE as untimely.

C. Hostile Work Environment Under Title VII, the ADA, and the ADEA.

Second, Plaintiff alleges that Defendant created a hostile work environment

under Title VII, the ADA, and the ADEA. (Doc. 97 at 24). “Claims of hostile

environment based on sex, age, [|] and disability are all recognized forms of

discrimination.” Cavanaugh v. Wormuth, No. CV 22-3333, 2024 WL 894791, at *7

(E.D. La. Mar. 1, 2024) (internal citations omitted); Dediol v. Best Chevrolet, Inc.,

655 F.8d 4385, 440 (5th Cir. 2011) (“Title VII has long been a vehicle by which

employees may remedy discrimination they believe creates a

hostile work environment.”); Jd. at 441 (“[A] plaintiffs hostile work environment

claim based on age discrimination under the ADEA may be advanced in this court.”);

Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 234-35 (5th Cir. 2001)

(“[Blecause Title VII has been extended to hostile work environment claims, we follow

the growing consensus that our harassment jurisprudence be extended to claims of

disability-based harassment.”).

To establish a prima facie case of harassment based on a protected basis, the

plaintiff must show: (1) she belongs to a protected class; (2) she was subject to

unwelcome harassment; (8)the harassment was based on the _ protected

characteristic; (4) the harassment affected a “term, condition, or privilege” of

employment; and (5) the employer knew or should have known of the harassment and

failed to take prompt remedial action. Id. (citing Woods v. Delta Beverage Group, Inc.,

24

274 F.3d 295, 298 (5th Cir. 2001) (additional citations omitted)). Here, Defendant

does not appear to dispute that Plaintiff can establish a prima facie case, but focuses

its argument on whether Plaintiffs evidence supports a finding of severity or

pervasiveness sufficient to establish a hostile work environment. (Doc. 90 at 36-38).

To succeed on a hostile work environment claim, Plaintiff must demonstrate

that she was subjected to harassment that was so “severe or pervasive” that it altered

the conditions of her employment and created an abusive working environment.

Gardner v. CLC of Pascagoula, L.L.C., 915 F.8d 320, 325 (5th Cir. 2019); see also

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998).

Factors courts consider to determine whether a hostile environment exists

include the frequency of the discriminatory conduct, its severity, whether it is

physically threatening or humiliating, and whether it unreasonably interferes with

an employee’s work performance. Faragher v. City of Boca Raton, 524 U.S. 775,

788-89 (1998); West v. City of Hou., Tex., 960 F.3d 736, 742 (5th Cir. 2020); see also

Vidrine v. Broom, No. CV 18-00538-BAJ-EWD, 2021 WL 1232885, at *2

(M.D. La. Mar. 31, 2021), affd sub nom. Vidrine v. Guillot, No. 21-30208,

2022 WL 3544396 (5th Cir. Aug. 18, 2022).

Federal discrimination laws, however, are not a general civility code

prohibiting all types of harassment in the workplace. Faragher, 524 U.S. at 788.

Therefore, “simple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the terms and

conditions of employment.” Jd. Likewise, a hostile work environment claim does not

25

protect employees from difficult or demanding managers, harsh language by a

supervisor, denial of request for special duty or temporary change to schedule and

duty assignments, increased scrutiny, or other routine employment matters that,

while upsetting, are not offensive or harassing as in the way necessary to support a

hostile environment claim. Cavanaugh, 2024 WL 894791, at *8 Gnternal citations

omitted).

Defendant argues that Plaintiffs allegations amount to a few isolated

interactions of harassment that lack corroboration, and even if corroborated, are not

objectively offensive, pervasive, or severe.’ (Doc. 90 at 38). Defendant points to the

following comments that Plaintiff testified Dr. Azmeh made to her as insufficient to

sustain a hostile work environment claim:

(1) Plaintiff “needed to retire;”

(2) Plaintiff would be fired “because [she] was sick too much;”

(3) Plaintiffs eye was “ugly” and Plaintiff “might not want to be at work

because the patients might think [she] had an infection;”

(4) It would be better if Plaintiff went on a corporate training trip “because

[she] was older and didn’t have any kids at home,” and that “Simone Mack

should not have to do it because she has a baby at home;” and

(5) Giant Cell Arteritis “is a disease old people get.”

8 Defendant also argues that Plaintiffs hostile work environment claims are time-barred

because they are based on events outside of the 300-day window preceding her EEOC Charge.

(Doc. 90 at 35). For the reasons described in Section IV(A), the Court finds that Plaintiffs

claims based on Dr. Azmeh’s alleged wrongful behavior survive under the continuing

violation doctrine.

26

(Ud. at 36 Gnternal citations omitted)).

Plaintiff responds that Dr. Azmeh made continuous discriminatory comments

to her two to three times per day for at least three months. (Doc. 97 at 34). Plaintiff

contends that these comments include the following:

(1) Being accused of not being well;

(2) Threatened that she was not going to be able to perform her job if she kept

having to miss work;

(3) Told that GCA is a disease that old people get and she may want to consider

retiring because she was older;

(4) Threatened that her disability was going to get worse as she got older and

was already old;

(5) Mocked when her eye was noticeably swollen as a result of her disability

and told that her eye was ugly and that she might not want to be at work

because patients might think she had an infection;

(6) Told that she needed to retire;

(7) Threatened that she was going to be fired due to absenteeism; and

(8) Accused of being sick too much.

(Ud. at 34-35). Turning to the alleged frequency of the comments, Plaintiff testified:

I was getting so frustrated because I felt like every time I had a flare,

Dr. Azmeh would tell me, like, “You need to retire. You’re too old, you’re”

-- I felt like my job was in jeopardy.

(Doc. 86-2 at 210:21—25 (emphasis added)).

I feel like the repeated subtle threats and pushes of -- of being made to

retire because I’m old and because I’m sick, and all of this that I received

27

on, at least a weekly basis from Dr. Azmeh, put me in a position at this

stage of the game where I felt like my job was in jeopardy.

(Id. at 211:18-25 (emphasis added)).

However, what I did receive was repeated harassment from Dr. Azmeh,

telling me that I was -- I needed to retire, that I -- I was gonna get fired

due to absenteeism, that I was gonna get fired because I was sick too

much. So certainly, there was that added stress to it. I did not feel secure

in my job. Not based -- my -- my performance, I was 100 percent fine

with. But the comments and harassment from Azmeh’s part certainly

made me feel less secure about my job.

Ud. at 221:22-222:8 (emphasis added)).

And it was repeated, repeated, repeated, that I needed to just think about

retiring, and I wasn’t well, and repeated -- he said, “If you keep having

to miss work, you know, you're just not gonna be able to perform this

job.” Usually yelling and screaming. It was definitely not statements

that made me feel secure in my position at AHF.

(Id. at 242:16-243:13 (emphasis added)).

Dr. Azmeh, for his part, denies making comments about Plaintiffs age.

(Doc. 86-6 at 60:1-18).

Noticeably missing from Dr. Azmeh’s alleged comments highlighted by the

parties are any comments based on Plaintiffs sex or gender. To establish a hostile

work environment claim under Title VII, Plaintiff must show that the alleged

harassment she suffered was based on sex or gender, and was so “severe or pervasive”

that it altered the conditions of her employment and created an abusive working

environment. Gardner v. CLC of Pascagoula, L.L.C., 915 F.8d 320, 3825

(5th Cir. 2019); see also Ellerth, 524 U.S. at 752. Plaintiff has failed to make such a

showing. Although Plaintiff argues that Dr. Azmeh allegedly commented that she

was too old to have children at home, and that she had to attend a training because

28

she did not have children at home like her younger co-worker, these alleged comments

relate to age rather than gender or sex. Accordingly, Defendant’s Motion is

GRANTED in this respect. Plaintiffs hostile work environment claim under

Title VII will be DISMISSED WITH PREJUDICE.

Turning to whether Dr. Azmeh’s alleged comments rose to the level of creating

a hostile work environment based on disability or age, the Court finds that this is an

issue for the factfinder. Alzwraqi v. Grp. 1 Auto., Inc., 921 F. Supp. 2d 648, 659

(N.D. Tex. 2018) (finding that a reasonable jury may decide that a hostile work

environment existed when plaintiff was called “Taliban” by coworkers multiple times

per day, even after repeated requests for his coworkers to stop).

Plaintiff argues that she testified in great detail regarding which comments

were made, when they were made, and how often they were made. (Doc. 97 at 26).

Defendant, however, takes issue with the fact that Plaintiffs testimony is

uncorroborated. (Doc. 90 at 37). Defendant also relies on Dr. Azmeh’s testimony, in

which he denies making age or disability-based comments to Plaintiff. (Ud.).

Defendant further points to the deposition testimony of other Pharmacy employees,

which Defendant argues establishes that while Dr. Azmeh acted abrasively at times,

he did not make disparaging remarks about Plaintiffs age or health condition. (/d.).

Finally, Defendant highlights its Human Resources Investigation Record, which

found that Plaintiffs November 2022 Complaint “did not support allegations of

unlawful discrimination based on age/hostile work environment as reported by

[Plaintiff].” Ud. (citing Doc. 88-12)).

29

Because the Court cannot weigh credibility on summary judgment, and

because a reasonable factfinder may credit either Plaintiffs testimony, or that of

Dr. Azmeh and other Pharmacy employees, the Court finds that it is appropriate to

submit this dispute to the factfinder.

Accordingly, Defendants’ Motion is DENIED in this respect. Plaintiffs hostile

work environment claims based on disability and age under the ADA and the ADEA

remain.

D. Constructive Discharge.

Third, Plaintiff alleges that Defendant constructively discharged her. “Under

the constructive discharge doctrine, an employee’s reasonable decision to resign

because of unendurable working conditions is assimilated to a formal discharge for

remedial purposes.” Pa. State Police v. Suders, 542 U.S. 129, 141 (2004). In other

words, constructive discharge is an adverse employment action. Vidrine,

2021 WL 1232835, at *4 (internal citations omitted). A constructive discharge claim

“entails something more” than mere harassment. Suders, 542 U.S. at 147. To

establish constructive discharge, a plaintiff must not only “prove [ ] that he was

discriminated against by his employer to the point where a reasonable person in his

position would have felt compelled to resign... . But he must also show that he

actually resigned.” Green v. Brennan, 578 U.S. 547, 555 (2016) (citing Suders,

542 U.S. at 148); see also Vidrine, 2021 WL 1232835, at *4.

“In the constructive discharge inquiry, the court examines the working

environment as a whole, and, to find for the plaintiff, must conclude that the

30

resignation was reasonable under all the circumstances.” Robinson v. Waste Mgmt.

of Tex., 122 F. App’x 756, 758 (5th Cir. 2004). “This holistic review of the workplace

takes into account only the specific conditions imposed by the employer; the subjective

state of mind of the employee is irrelevant.” Jd. The Fifth Circuit has “previously

identified several factors relevant to constructive discharge, including:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities;

(4) reassignment to menial or degrading work; (5) badgering,

harassment, or humiliation by the employer calculated to encourage the

employee’s resignation; or (6) offers of early retirement that would make

the employee worse off whether the offer were accepted or not.

Perret v. Nationwide Mut. Ins. Co., 770 F.8d 386, 339 (5th Cir. 2014) (Gnternal

citations omitted). “Discrimination alone, without aggravating factors, is insufficient

for a claim of constructive discharge, as is a discriminatory failure to promote.” Brown

v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001).

For constructive discharge claims, “[t]he environment must be ‘something

more’ than that present in a harassment or hostile work environment claim; a

plaintiff must show a ‘worse case’ harassment scenario, harassment ratcheted up to

the breaking point.” Easterling v. Sch. Bd. of Concordia Par., 196 F. App’x 251, 253

(5th Cir. 2006) (quoting Suders, 542U.S. at 147-48); see also Russell v.

Parkview Baptist Sch., Inc., No. CV 19-760-JWD-EWD, 2021 WL 1147162, at *13—14

(M.D. La. Mar. 25, 2021).

Here, Plaintiff does not argue that she: (1) was demoted; (2) received any type

of salary reduction; (3) had her job responsibilities reduced; (4) was assigned menial

or degrading work; or (5) was assigned to work for a younger supervisor. See Russell,

31

2021 WL 1147162, at *14. Thus, Plaintiff must demonstrate the final factor for a

constructive discharge claim—that she suffered “badgering, harassment, or

humiliation” by Defendant such that the “working conditions [became] so intolerable

that a reasonable person in the employee’s position would have felt compelled to

resign.” Id. (citing Perret, 770 F.3d at 338). Defendant argues that Plaintiff cannot

make such a showing, particularly because the undisputed facts show that Plaintiff

submitted her resignation on the same day she accepted a job offer with Ochsner,

underscoring the voluntariness of her decision. (Doc. 90 at 20; Doc. 83-1 { 53;

Doc. 86-1 { 53).

Plaintiff responds that Defendant badgered, harassed, and humiliated her

beginning approximately six months into her employment until she resigned effective

November 22, 2022. (Doc. 97 at 34). In support of her constructive discharge claim,

Plaintiff argues that: (1) Dr. Azmeh allegedly made derogatory comments to her about

her disability; (2) Defendant systematically targeted Plaintiff to get her to resign

through Dr. Azmeh’s continuous yelling, screaming, berating, and standing over her;

(3) Dr. Azmeh refused to communicate with Plaintiff regarding patient care and

Pharmacy operations; (8) Dr. Azmeh circumvented Plaintiff and communicated only

with Mack; and (4) Dr. Azmeh falsely accused Plaintiff of misconduct.® Ud.).

9 Plaintiff also argues that Killeen denied Plaintiffs request for vacation, Killeen failed to

accommodate Plaintiff, and Killeen disciplined Plaintiff for requesting a reasonable

accommodation. The Court has already found that claims arising out of the September 2022

Incident are untimely, so the Court will not consider these facts at this juncture. See supra

Section I'V(A).

oe

The law is clear that “[d]iscrimination alone, without aggravating factors, is

insufficient for a claim of constructive discharge[.]”’ Brown, 237 F.3d at 566. Thus, the

key question is whether the “badgering, harassment, or humiliation” passed the high

bar of constructive discharge. Having carefully considered the matter, the Court finds

that a reasonable juror could not conclude that Dr. Azmeh’s alleged behavior—

individually or in combination—satisfies the high burden of a constructive discharge

claim. Plaintiffs subjective belief that Plaintiffs job was at risk does not persuade

otherwise. (Doc. 86-2 at 210:21~25 (“I felt like my job was in jeopardy.”)); see

Robinson, 122 F. App’x at 758 (“This holistic review of the workplace takes into

account only the specific conditions imposed by the employer; the subjective state of

mind of the employee is irrelevant.”). Accordingly, the Court finds that Plaintiff was

not constructively discharged. See Russell, 2021 WL 1147162, at *14 (granting

summary judgment for failure to show constructive discharge); see also Webb □□□

Sw. Bell Tel., L.P., No. 03-ca-1271, 2004 WL 2905255, at *5 (W.D. Tex. Dec. 16, 2004)

(“Plaintiffs evidence of hostility, threats, and yelling by [supervisor], as well as

evidence that [supervisor] resorted to confronting her outside a restaurant about a

coffee break, changed the designation of certain illness days, blocked her path into

his office and apparently bumped her chest with his chest, and visited her home to

check whether Plaintiff was actually sick is not sufficient to establish that a

reasonable person would have felt compelled to resign in Plaintiffs situation.”);

Garrett v. City of Tupelo, Miss., No. 1:16-CV-197-DMB-DAS, 2018 WL 3341198, at

*12 (N.D. Miss. July 6, 2018) (““Additionally, while it appears Miller would yell at

33

Garrett, there is no evidence this occurred so frequently as to rise to the level of a

hostile work environment, much less a constructive discharge.”); Landgraf v.

USI Film Products, 968 F.2d 427, 4830-31 (5th Cir.1992) (finding that “substantial

harassment” involving “continuous and repeated inappropriate verbal comments and

physical contact,” did not rise to the level necessary to establish a constructive

discharge claim); Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 4738, 481 (5th Cir. 2008)

(‘The poor treatment alleged by [plaintiff] does not reach the level required to

establish a constructive discharge claim.”); Brown v. Bunge Corp., 207 F.3d 776,

782-83 (5th Cir. 2000) (affirming grant of summary judgment even where employee

was demoted and given fewer job responsibilities); Stephens v. CLT.

Group/ Equip. Fin., Inc., 955 F.2d 1023, 1027-28 (5th Cir. 1992) (affirming jury

verdict on constructive discharge where plaintiff had been demoted, faced significant

reductions in salary and responsibilities, and was repeatedly asked when he planned

to quit); Harvill v. Westward Comme’n, L.L.C., 483 F.3d 428, 440 (5th Cir. 2005)

(employee’s assertions that she was treated “rudely and with general hatefulness,”

that a man she did not know began taking pictures of her, that a meritless racial

harassment charge was brought against her, and that a new supervisor was

overheard to state that he would receive a bonus if he ran her off were not sufficient

to demonstrate harassment so intolerable that a reasonable employee would feel

compelled to resign); Jett v. Dall. Indep. Sch. Dist., 798 F.2d 748, 752, 755

(5th Cir. 1986) (finding no constructive discharge after the plaintiff was demoted

“with much sorrow and humiliation” from his job as high school football coach and

34

transferred to another school), aff'd in part and remanded in part on other grounds

by 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); Chapa v. Wells Fargo, N.A.,

No.11-834, 2014 WL 670816, at *17 (W.D. Tex. Feb. 20, 2014) (granting motion for

summary judgment on constructive discharge despite plaintiffs claim that she was

badgered, harassed and humiliated by (1) her supervisor’s internal reference form

indicating he would not re-hire her; (2) “an anonymous call to the Ethics Line alleging

that Plaintiff called [her manager] a racial slur”; and (8) “an incident in which a co-

worker ‘became concerned’ with Plaintiffs employment status in response to a

comment made by [her manager]”); Stover v. Hattiesburg Public Sch. Dist.,

549 F.3d 985 (5th Cir. 2008) (employee’s assertions that she was not provided the

same career development opportunities, her complaints of discrimination were not

investigated, her supervisor exhibited anger and violence, and that she was excluded

from prestigious retreats were not sufficient to support a claim of constructive

discharge).

Because the Court finds that Plaintiff fails to meet the high burden of

constructive discharge, her remaining claims must also fail because she cannot

establish an adverse employment action.

E. Disparate Treatment Under the ADA.

Fourth, Plaintiff asserts a disparate treatment claim based on disability under

the ADA.!° (Doc. 97 at 43). To establish a prima facie case of disparate treatment

under the ADA, the plaintiff must show that: (1) she had a disability within the

10 Plaintiff states that she does not assert a disparate treatment claim based on sex, gender,

or age based on Title VII or the ADEA. (Doc. 97 at 48).

35

meaning of the ADA; (2) she was qualified and able to perform the essential functions

of the job; and (8) she suffered an adverse employment action because of her

disability. Bernard v. EDS Noland Episcopal Day Sch., 62 F. Supp. 3d 585, 541

(W.D. La. 2014) (citing Neely v. PSEG Tex., Lid. P’ship, 7385 F.8d 242, 245

(5th Cir. 2013)). Because Plaintiff cannot establish an adverse employment action,

she cannot sustain a prima facie case of disparate treatment under the ADA.

Accordingly, Defendant’s Motion is GRANTED in this respect. Plaintiffs disparate

treatment claim under the ADA will be DISMISSED WITH PREJUDICE.

F. Retaliation Under Title VII, the ADA, and the ADEA.

Fifth, Plaintiff asserts a retaliation claim under Title VII, the ADA, and the

ADEA. (Doc. 97 at 44). “To show an unlawful retaliation, a plaintiff must establish a

prima facie case of (1) engagement in an activity protected by the ADAJ[, Title VII, or

the ADEA], (2) an adverse employment action, and (8) a causal connection between

the protected act and the adverse action.” Butler, 838 F. Supp. 2d at 495 (citing

Seaman v. CSPH, Inc., 179 F.8d 297, 301 (5th Cir. 1999); Hernandez □□□

Yellow Transp., Inc., 641 F.3d 118, 130 (5th Cir. 2011) (describing similar elements

of Title VII retaliation claim)); Heggemeier v. Caldwell Cnty., Tex., 826 F.3d 861, 869

(5th Cir. 2016) (describing prima facie retaliation claim under the ADEA) (internal

citations omitted).

Because Plaintiff cannot establish an adverse employment action, she cannot

sustain a prima facie case of retaliation under Title VII, the ADA, or the ADEA.

Accordingly, Defendant’s Motion is GRANTED in this respect. Plaintiffs retaliation

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claims under Title VII, the ADA, and the ADEA will be DISMISSED WITH

PREJUDICE.

G. Reprisal Under the Louisiana Whistleblower Statute.

Finally, Plaintiff argues that the Defendant engaged in reprisal against her in

violation of the Louisiana Whistleblower Statute, which provides that:

A. An employer shall not take reprisal against an employee who in good

faith, and after advising the employer of the violation of law:

(1) Discloses or threatens to disclose a workplace act or practice that is

in violation of state law.

(2) Provides information to or testifies before any public body conducting

an investigation, hearing, or inquiry into any violation of law.

(3) Objects to or refuses to participate in an employment act or practice

that is in violation of law.

La. Rev. Stat. § 23:967(A).

Louisiana Courts look to federal Title VII jurisprudence to interpret Louisiana

discrimination laws. Stevenson v. Williamson, 547 F. Supp. 2d 544, 551

(M.D. La. 2008), affd, 324 F. App’x 422 (5th Cir. 2009) (citing King v.

Phelps Dunbar, LLP., 743 So.2d 181, 187 (La. 1999); Bustamento v. Tucker,

607 So. 2d 532, 588, n. 6 (La. 1992); Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274

(5th Cir. 1989)). Therefore, the federal analysis applicable to Plaintiffs Title VII claim

also governs Plaintiffs state law claims under Louisiana Revised Statutes § 23:967.

Stevenson, 547 F. Supp. 2d at 551.

Applying federal Title VII standards, Plaintiffs claim under the Louisiana

Whistleblower Statute fails. An employee “establishes a prima facie case for unlawful

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retaliation by proving (1) that she engaged in activity protected by Title VII, (2) that

an adverse employment action occurred, and (8) that a causal link existed between

the protected activity and the adverse employment action.” Rayborn v. Bossier Par.

Sch. Bd., 881 F.3d 409, 415-16 (5th Cir. 2018) (citing Long v. Eastfield Coll., 88 F.3d

300, 304 (5th Cir. 1996); McMillan v. Rust Coll., Inc., 710 F.2d 1112, 1116

(5th Cir. 1983)). For the purposes of the Louisiana Whistleblower Statute, an adverse

employment action “is defined as ‘a significant change in employment status, such as

hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.” Rayborn, 881

F.3d at 415-16 (quoting Ellerth, 524 U.S. at 761) (additional citations omitted).

Because Plaintiff cannot establish an adverse employment action, she cannot

sustain a prima facie case of reprisal under the Louisiana Whistleblower Statute.

Accordingly, Defendant’s Motion is GRANTED in this respect. Plaintiffs reprisal

claim under the Louisiana Whistleblower Statute will be DISMISSED WITH

PREJUDICE.

V. CONCLUSION

Accordingly,

IT IS ORDERED that Defendant AIDS Healthcare Foundation’s (“AHF”)

Motion for Summary Judgment (Doc. 83) is GRANTED IN PART and DENIED

IN PART.

IT IS FURTHER ORDERED that Plaintiffs failure to accommodate claim is

DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that Plaintiff's hostile work environment claim

based on sex or gender under Title VII is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs disparate treatment claim

under the ADA is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs retaliation claims under

Title VII, the ADA, and the ADEA are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs reprisal claim under the

Louisiana Whistleblower Statute is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs hostile work environment

claims under the ADA and the ADEA remain.

Baton Rouge, Louisiana, this 5, of March, 2026

( ’ Q

fea f

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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