Chen v. Ochsner Clinic Foundation et al

Filing 43

ORDER granting 24 Motion for Summary Judgment as to plaintiff's claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; Louisiana Revised Statutes § 23:301, et seq.; the Ame ricans with Disabilities Act, 42 U.S.C. § 12101, et seq.; and, La. Rev. Stat. § 23:322, et seq., and those claims are DISMISSED WITH PREJUDICE.IT IS FURTHER ORDERED that plaintiff's claim brought under La. Rev. Stat. § 13:1361and his claim for intentional infliction of emotional distress are DISMISSED WITHOUT PREJUDICE. Signed by Judge Mary Ann Vial Lemmon on 12/2/14. (cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HUI G. CHEN

CIVIL ACTION

VERSUS

NO: 13-5808

OCHSNER CLINIC FOUNDATION
AND OCHSNER CLINIC, A
PROFESSIONAL CORPORATION

SECTION: "S" (3)

ORDER AND REASONS
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Doc. #24)
is GRANTED as to plaintiff's claims brought under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; Louisiana Revised Statutes § 23:301, et seq.; the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; and, La. Rev. Stat. § 23:322, et seq.,
and those claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that plaintiff's claim brought under La. Rev. Stat. § 23:1361
and his claim for intentional infliction of emotional distress are DISMISSED WITHOUT
PREJUDICE.
BACKGROUND
This matter is before the court on a motion for summary judgment filed by defendants,
Ochsner Clinic Foundation and Ochsner Clinic, a Professional Corporation (collectively "Ochsner").
Plaintiff, Hui G. Chen, alleges that he began working for Ochsner as an electrician at
Ochsner's Brent House Hotel. In April 1994, he was transferred to one of Ochsner's hospitals and
worked on the TeleLift system, which carried documents and other items behind walls and above
the ceilings throughout the hospital. In late 2005, the hospital became "paperless" and began
eliminating the TeleLift System. Thereafter, Chen was reassigned to work on the tube system,

which carries medicine, patient test specimens, blood and other items to various places in the hospital.
Chen alleges that in July 2011, he received five incident reports from Mike Lawson that
stated he had low evaluation scores from 2010. Chen claims that this was "in an attempt to
intimidate and terminate [him] because Gary (white) and Eric (white) wanted to get rid of the
foreigner and replace him with a white guy after 17 years of service."
Chen also alleges that he sprained his ankle at work on September 14, 2011, "while repairing
a pipe in the ceiling," after asking for a helper and having the request denied by his supervisors.
Chen claims that he was treated in the hospital's emergency room, and then participated in physical
therapy. Chen alleges that he used two weeks of general purpose time, and then was on short-term
disability until November 16, 2011. Chen made a workers' compensation claim regarding the
incident, and claims that thereafter, he was retaliated against, harassed and eventually terminated
on April 19, 2012.
On September 11, 2013, Chen filed this lawsuit in which he alleges that after his September
14, 2011, injury and subsequent workers' compensation claim, his co-workers and supervisors
discriminated against him, and that he was ultimately terminated. Specifically, he alleges that
"[a]fter his return, Plaintiff was subjected to systematic and intentional discrimination in direct
retaliation and reprisal for having brought a claim of workers' compensation." Chen also alleges that
he "was subjected to intentional race and national origin discrimination and suffered a severe and
pervasive hostile work environment," and that when he complained of the alleged retaliation and
harassment Ochsner did not take any action "to prevent and correct promptly the harassment and
retaliation." Further, Chen alleges that he was "terminated in retaliation for his disability, race and
2

his complaints of discrimination engaging in protected activity[, and] [t]he retaliatory and
discriminatory retaliation is tangible employment action against [him.]"
Chen brought claims for race and national origin discrimination, hostile work environment
and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C.
§ 1981, and the corresponding Louisiana law, La. Rev. Stat. § 23:301, et seq.; under the Americans
with Disabilities Act, 42 U.S.C. § 12101, et seq., and the corresponding Louisiana law, La. Rev.
Stat. § 23:322, et seq.; for discrimination with respect to his workers' compensation claim under La.
Rev. Stat. § 23:1361; under the Louisiana Whistleblower Statute, La. Rev. Stat. 23:967; under the
Louisiana's Final Paycheck Statute, La. Rev. Stat. § 23:632; and for intentional infliction of
emotional distress and negligence under Louisiana tort law. On Ochsner's motion, this court
dismissed Chen's claim for negligence, and his claims under Louisiana's Final Paycheck Statute and
Whistleblower Statute, La. Rev. Stat. §§ 23:632 and 23:967, respectively. Ochsner now moves for
summary judgment on Chen's remaining claims.
ANALYSIS
A.

Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall 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." Granting a motion for summary judgment is proper if
the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits filed in
support of the motion demonstrate that there is no genuine issue as to any material fact that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 106 S.Ct. 2505, 2509-10 (1986). In determining whether there is a dispute as to a

3

material fact, the court considers all of the evidence in the record and draws all reasonable
inferences in favor of the nonmoving party, but does not make credibility determinations or weigh
the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110 (2000).
B.

Title VII and La. Rev. Stat. § 23:301, et seq.
Ochsner argues that it is entitled to summary judgment on Chen's national origin and race

discrimination, hostile work environment and retaliation claims brought under Title VII and
Louisiana's Employment Discrimination Law.1
Title VII provides that it is “an unlawful employment practice for an employer to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). La. Rev. Stat.
§ 23:332, similarly provides that it is unlawful employment discrimination for an employer to
“[i]ntentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally
discriminate against any individual with respect to his compensation, or his terms, conditions, or
privileges of employment, because of the individual’s race, color, religion, sex or national origin.
LA. REV. STAT. § 23:332(A)(1). Because the laws are substantively similar, jurisprudence

1

Ochsner does not specifically address Chen's similar claims brought under 42 U.S.C. § 1981.
Pursuant to § 1981, all persons within the jurisdiction of the United States have the same rights, regardless
of race, to enter into and enforce contracts, including the “making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.” 42 U.S.C. § 1981(a)-(b). Section 1981 claims and Title VII claims are analyzed under the
same methodology. Jenkins v. Methodist Hosp. of Dall., Inc., 478 F.3d 255, 260 (5th Cir. 2007); see also
Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) ([T]he only substantive differences
between the two statutes [is] their respective statute of limitations and the requirement under Title VII that
the employee exhaust administrative remedies.”). Thus, this court's analysis of Chen's Title VII claims also
applies to his § 1981 claims.

4

interpreting Title VII can be applied in interpreting the Louisiana employment discrimination laws,
La. Rev. Stat. § 23:301, et seq.. Brittain v. Family Servs., Inc., 801 So.2d 457 (La. Ct. App. 2001).
A plaintiff bringing claims under Title VII can use either direct or circumstantial evidence
to prove his case of intentional discrimination. Portis v. First Nat’l Bank of New Albany, Miss., 34
F.3d 325, 328 (5th Cir. 1994). Direct evidence is “evidence which, if believed proves the fact of
discriminatory animus without inference or presumption.” Sandstad v. CB Richard Ellis, Inc., 309
F.3d 893, 897 (5th Cir. 2002). “Because direct evidence is rare, a plaintiff ordinarily uses
circumstantial evidence to meet the test set out in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817
(1973).” Id.
In McDonnell Douglas, the Supreme Court of the United States "established an allocation
of the burden of production and an order for the presentation of proof in Title VII discriminatorytreatment cases." St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2746 (1993). First, the plaintiff
must establish a prima facie case of discrimination, which creates a presumption that the employer
unlawfully discriminated against the employee. Tex. Dep't of Cmty. Affirs v. Burdine, 101 S.Ct.
1089, 1094 (1981). If the plaintiff establishes a prima facie case of discrimination, the burden shifts
to the employer to produce evidence of a legitimate, non-discriminatory reason for the adverse
employment action. Buisson v. Bd. of Supervisors of the La. Cmty. and Technical Coll. Sys., - - Fed. Appx. - - - , 2014 WL 5804127, at *4 (5th Cir. 11/10/2014) (citing McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007)). "If the employer articulates a legitimate reason for
the adverse employment action, 'the plaintiff then bears the ultimate burden of proving that the
employer's proffered reason is not true but instead is a pretext for the real discriminatory . . .
purpose.'" Id. (quoting McCoy, 492 F.3d at 556).

5

1. National Origin or Race Discrimination
To establish a prima facie case of discrimination the plaintiff must demonstrate that he: (1)
is a member of a protected group; (2) was qualified for the position at issue; (3) suffered an adverse
employment action, such as termination of his employment; and, (4) was replaced with someone
outside his protected group or was treated less favorably than other similarly situated employees
outside the protected group. Id. (citing McCoy, 492 F.3d at 556).
Chen satisfies the first three prongs. As an Asian-American originally from China, Chen has
demonstrated that he was a member of a protected group. There is no dispute that he was qualified
for his position at Ochsner, and he has alleged an adverse employment action in that he was
terminated from his employment.2
Chen has not satisfied the fourth prong, because he has not shown that he was replaced with
someone outside his protected group or that he was treated less favorably than other similarly
situated employees outside the protected group. Chen alleges that July 2011, he received five
incident reports from Mike Lawson that stated he had low evaluation scores from 2010, and that this
was "in an attempt to intimidate and terminate [him] because Gary (white) and Eric (white) wanted
to get rid of the foreigner and replace him with a white guy after 17 years of service." However,
Chen does not identify any evidence in his opposition to Ocshner's motion for summary judgment,
either by affidavit or argument in his memorandum, that he was actually replaced by someone
outside of his protected group when he was terminated in April 2012. See Forsyth v. Barr, 19 F.3d

2

Chen mentions poor performance evaluations. However, poor performance evaluations are not
adverse employment actions. Buisson, 2014 WL 5804127, at *5 (citing Pegram v. Honeywell, Inc., 361 F.3d
272, 282 (5th Cir. 2004) (noting that an adverse employment actions "consists of ultimate employment
decisions such as hiring, granting leave, discharging, promoting, [demoting,] and compensating" and must
"affect job duties, compensation, or benefits")).

6

1527, 1537 (5th Cir. 1994) (To satisfy his burden on a motion for summary judgment, the
nonmovant is "required to identify specific evidence in the record, and to articulate the 'precise
manner' in which that evidence support[s] his claim."); Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915 n. 7 (5th Cir. 1992) ("Rule 56 does not impose upon the district court a duty to sift through
the record in search of evidence to support a party's opposition to summary judgment[.]").
Further, Chen has not proved that he was treated less favorably than other similarly situated
employees outside the protected group. Ochsner presented the following evidence regarding Chen's
performance evaluation and discipline record to demonstrate that Chen was terminated for cause,
not due to discrimination:
•

In 2003, Chen received a "meets expectations/good" score on his annual performance
evaluation, but initially refused to sign it because he thought he should have received a
higher score. The evaluation also noted that "Chen occasionally fails to listen without
interrupting and maintaining a professional tone with Management and his peers."

•

In 2008 and 2009, Chen's supervisor, Nicholas Sciambra, stated in Chen's performance
evaluations that Chen needed to continue to develop his skills in working with the tube
system.

•

In 2010, Sciambra rated Chen as "Exceeds Expectations" in his performance evaluation
but noted that:
In the last 12 months Chen has had some problems with trouble
shooting different types of break downs on the tube system. When
Chen has a problem that he cannot resolve, he seems to lose his
confidence and wants to rely on other co-workers for help . . .
Chen needs to continue to develop his skills on the tube system . . .
Chen continues to do a good job on the tube system. He displays job
ownership. Chen does demonstrate some trouble shooting problems
....
Chen does not understand the flow of trouble shooting the tube
system. He spends too much time documenting on the computer
instead of trouble shooting issues in the field.
7

•

Chen initially refused to sign this evaluation because he was "unhappy with some
comments that were listed." When Chen met with Sciambra to discuss the evaluation,
he told Sciambra that he would "hate him" if Sciambra did not change the evaluation.

•

In 2011, Gary Jallans, Chen's new supervisor, gave Chen an "Achieves Expectations"
score on his 2011 evaluation, but noted that:
Chen has made a good effort in keeping the tube system running and
has been consistent in working on the daily maintenance of it. He has
stayed late and been here on weekends to try to keep the system up
and running. On the other hand, there have been some times over the
past year that Chen has had some problems trouble shooting the tube
system. This has led to bringing in addition[al] help to resolve the
problems.

•

That evaluation also stated that Chen was required to take an additional training course
from the tube system manufacturer, and that Chen "[o]ccassionally fails to be effective
and remain professional in stressful situations."

•

On July 15, 2011, Jallans and Sciambra met with Chen to discuss the evaluation. Chen
was upset by the evaluation, and had to report to employee health due to his anger. The
meeting was rescheduled for July 18, 2011, and Allison Atkinson from human resources
attended.

•

At the July 18, 2011, meeting, Chen was upset by the "Achieves Expectations" score,
and refused to sign the evaluation. Michael Lawson, the Facilities Director, stated in an
email to Atkinson that Chen's "Achieves Expectations" score could have been lowered
because of his behavior, but instead added requirements of training for accepting
feedback, communication, stress management, and monthly meetings regarding those
items.

•

On July 20, 2011, Chen met with Atkinson to draft a rebuttal to his evaluation, and he
stated that he was "proud of doing a perfect job." Chen also submitted suggested scores
of "Exceeded Expectations" or "Outstanding."

•

On July 25, 2011, Chen, Jallans, Atkinson, Lawson, and Sciambra attended another
meeting to review Chen's 2011 evaluation and his response. Chen's evaluation scores
were not changed, and he complained to Lawson about the scores again on August 17,
2011.

•

When Chen injured his ankle on September 14, 2011, he was the only employee
responsible for the tube system at that time, so Eric Danos took over the tube
maintenance in Chen's absence. Danos discovered that Ochsner was short 89 tubes and
that another 42 were cracked, and he inspected every tube station daily.
8

•

Lawson, along with human resources personnel, devised a plan to discuss the tube
system issues with Chen upon his return, and developed a "Monthly Tube System
Report." Lawson discussed these items with Chen when he returned to work on
November 16, 2011. Chen denied that the problems existed, continued to refuse to sign
his 2011 evaluation learning map, and refused to attend the advanced tube system
training.

•

Ochsner's Vice President of Facilities, James Britsch, explained to Chen that the training
was required, and Chen agreed to go in March 2012.

•

On December 1, 2011, Jallans explained to Atkinson that Chen consistently took too
long to diagnose problems with the tube system, and on December 5, 2011, Chen
received a corrective action form that outlined the deficiencies with his performance
since November 21, 2011, such as excessive down time of the tube system and Chen's
failure to close a tube system doorway in a common hallway. Chen refused to sign the
document, and appealed the corrective action.

•

Thereafter, Chen received another corrective action form for allegedly refusing to follow
Jallan's instructions regarding a computer issue. On December 14, 2011, Chen attended
a meeting with Lawson, Jallans and Atkison to discuss that issue. He told Jallans "[y]ou
want to fire me, catch me," and asked Jallans if he went to church. Chen appealed this
corrective action.

•

In a December 15, 2011, email to Atkinson and Britsch, Lawson stated that his "five
month review of Chen's job performance notes he is consistently defiant to facilities
management supervision. He is not receptive to constructive instruction for
improvement. He has demonstrated poor troubleshooting skills related to working on
the tube system, which has resulted in extensive downtime of the system."

•

On January 9, 2011, Britsch drafted a memorandum denying Chen's appeal requesting
that the December 5, 2011, corrective action be withdrawn. It stated that Chen's
"willingness to be open and listen appropriately to feedback and direction from your
supervisor is an area that continues to need improvement." Atkinson gave this document
to Chen on January 11, 2012.

•

On February 13, 2013, William Ward, Senior Vice President of Facilities, issued a denial
of Chen's appeal of the December 15, 2011, corrective action. In that document, Ward
noted that the "investigation found that [Chen's] manager provided [him] with clear
direction of the steps needed to be taken to resolve the shutdown and that your failure
to follow said instructions resulted in unnecessary downtime."

•

On April 12, 2012, Lawson submitted Chen's 2012 performance evaluation to Atkinson
for review. The document indicated that Chen would receive an "Improvement
Expected" score because he demonstrated disruptive behavior "boarding on
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insubordination," and did not "have the willingness to accept constructive feedback from
leadership regarding his performance." It also mentioned the December 2011 corrective
actions, and noted that he showed some improvement on the technical side but was not
receptive to performing daily tube station checks. It required Chen to review his
communication skills and learn to accept and trust leadership decisions.
•

Chen submitted a self-evaluation to Lawson on April 18, 2012, before Lawson and
Jallans reviewed the 2012 evaluation with Chen. Chen rated himself as "Exceeds
Expectations." As a result, Lawson decided that Chen was not improving and did not
comprehend how Ochsner was trying to help him improve. Thus, Lawson, along with
Britsch, human resources personnel, and other senior leadership at Ochsner decided to
terminate Chen.

Chen argues that all of the poor evaluations and corrective actions were motivated by a racial
or national origin animus. He also claims that the affidavit of Quang Nguyen, a former Ocshner
employee of Asian decent who was fired, and arguments regarding a white employee named Bill
who allegedly hurt his foot and was given light duty, demonstrates that Asians were treated less
favorably. Although Nguyen was terminated and believed that he was discriminated against, Chen
does not identify any evidence that proves that a non-Asian, non-Chinese person with a similar
performance evaluation and discipline record as his was retained whereas he was terminated. Thus,
he has not demonstrated that he was treated less favorably than a similarly situated employee outside
the protected group, and does not satisfy the fourth prong of the prima facie case of race or national
origin discrimination, and Ochsner's motion for summary judgment is GRANTED as to Chen's race
and national origin discrimination claims brought under Title VII, § 1981, and La. Rev. Stat. §
23:301, et seq., which are DISMISSED WITH PREJUDICE.
2. Hostile Work Environment
Chen claims that he was subjected to a hostile work environment due to his race and national
origin. He claims that the following events demonstrate a hostile work environment:
•

In 2005, someone urinated in his work room.
10

•

Sciambra put a note on his door that stated, "If door is locked, do not knock on my door,"
which was meant only for Chen.

•

In 2008, when he went to China to visit his mother, Scaimbra told Chen that he would
be fired if Sciambra saw him on television at the Olympic Games.

•

Sciambra and other employees would say profane words in their offices, but stop when
Chen entered.

•

Sciambra called Chen a rat.

•

Jallans passed gas in Chen's work area before he became Chen's supervisor.

•

In July 2011, someone put some type of grease substance on Chen's telephone.

•

A light in the tube room fell to the ground.

•

Someone moved the telephone in Chen's work station to the middle of the tube system
room.

•

Someone placed some type of substance on Chen's chair.

•

Someone placed pieces of scrambled egg in Chen's desk drawer.

•

The sign labeling the tube office was removed and replaced with a sign that said "Keith
and Steve's Office."

To establish a hostile work environment claim based on race or national origin under Title
VII, a plaintiff must prove: (1) membership in a protected group; (2) unwelcome harassment; (3) the
harassment complained of was based on his membership in the protected group; (4) the harassment
complained of 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. Buisson, 2014
WL 5804127, at *6 (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).
Chen satisfies the first two prongs of the test. As an Asian-American of Chinese national
origin, plaintiff was part of a protected group, and he has pointed to instances of harassment that
were unwelcome. However, Chen does not establish that the harassment was based on his race or
11

national origin. Chen admitted that he never heard any supervisor or manager make any negative
or discriminatory comments about Chinese or Asian people. Further, there is nothing overtly racist
about the cited instances.
Moreover, Chen cannot satisfy the fourth element. To satisfy the fourth requirement, that
the harassment affected a term, condition or privilege of employment, it must be both objectively
and subjectively offensive, "one that a reasonable person would find hostile or abusive, and one that
the victim in fact did perceive to be so." Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2283
(1998) (citations omitted). The Supreme Court of the United States has stated that "'simple teasing,'
offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the 'terms and conditions of employment.'" Id. (citations omitted). "To
determine whether conduct is objectively abusive, we look to the totality of the circumstances: the
frequency of the discriminatory conduct, its severity, whether it involves physical threats or
humiliation as opposed to mere offensive utterances, whether it unreasonably interferes with an
employee's work performance, and whether the complained-of conduct undermines the plaintiff's
workplace competence." Hague v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 560 Fed. Appx.
328, 332 (5th Cir. 2014). The instances Chen cites do not rise to the level of severity or
pervasiveness necessary to support a hostile work environment claim. None of the instances
involved physically threatening conduct, nor did they unreasonably interfere with Chen's
performance. Sciambra's comment about not seeing Chen at the 2008 Olympic Games while he was
in China and the egg yoke, which Chen claims were race related, were one-time occurrences that
are insufficient to establish a hostile work environment based on race or national origin. See
Buisson, 2014 WL 5804127, at *7 (A supervisor's use of a derogatory term to refer to an Asian-

12

American subordinate was insufficient to establish a hostile work environment even when combined
with the supervisor's other offensive and annoying behavior). Moreover, after the July 2011 incident
when someone allegedly put a grease substance on Chen's phone, Lawson called a meeting with the
facilities department to review the harassment policy, explaining that practical jokes would not be
tolerated and giving copies of the policy to the employees at the meeting. Thus, Ocshner's motion
for summary judgment is GRANTED as to Chen's hostile work environment claims brought under
Title VII, § 1981, and La. Rev. Stat. § 23:301, et seq., which are DISMISSED WITH PREJUDICE.
3. Retaliation
Chen alleges that he was retaliated against under Title VII for complaining about
discrimination.
Under Title VII, it is unlawful for an employer to discriminate against an employee "because
he has opposed any practice made an unlawful employment practice by [Title VII], or because he
has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding,
or hearing under [Title VII]." To establish a prima facie case of retaliation under Title VII, a
plaintiff must show that: (1) he participated in a protected activity; (2) he suffered an adverse
employment action; and, (3) there is a causal connection between the protected activity and the
adverse action. Buisson, 2014 WL 5804127, at *7 (citing Stewart v. Miss. Trans. Comm'n, 586 F.3d
321, 331 (5th Cir. 2009).
Chen claims that he was fired for complaining about racial and national origin
discrimination, however, he cannot establish a casual connection between the complaints and the
adverse employment action. In the January 9, 2012, denial of Chen's appeal of the December 5,
2011, corrective action, Britsch notes that Chen alleged that he was being discriminated against due

13

to his skin color. Chen also made this allegation at a January 11, 2012, meeting with Atkinson.
Atkinson testified at her deposition that Chen could not provide any evidence to support the
allegations. Atkinson asked another human resources employee, Karen Judlin, to investigate the
matter. Judlin interviewed Chen, Lawson and Jallans, and was unable to substantiate Chen's claims.
Moreover, as explained above, Ochsner has demonstrated that Chen's employment record is replete
with instances of Chen's poor performance and insubordination. Chen has pointed to nothing more
than his unsupported allegations that his termination was based on his complaints of discrimination.
Therefore, Ochsner's motion for summary judgment is GRANTED as to Chen's retaliation claims
brought under Title VII, § 1981, and La. Rev. Stat. § 23:301, et seq., which are DISMISSED WITH
PREJUDICE.
B.

Americans with Disabilities Act and La. Rev. Stat. § 23:322, et seq.
Chen alleges that he was discriminated against due to a disability in violation of the

Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the corresponding
Louisiana law, La. Rev. Stat. § 23:322, et seq..
The ADA prohibits an employer from discriminating "against a qualified individual on the
bases of disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a). A "qualified individual" is someone "who, with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires. Id. at § 12111(8).
Under the ADA, as amended by the ADA Amendments Act of 2008 ("ADAAA"), Pub.L.No.
110-325, 122 Stat. 3553, the "term 'disability' means, with respect to an individual - - (A) a physical

14

or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such impairment; or (C) being regarded as having such an impairment. . ." Id. at §
12102(1). "[M]ajor life activities include, but are not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working." Id. at §
12102(2)(A). "An individual meets the requirement of 'being regarding as having such an
impairment' if the individual establishes that he or she has been subjected to an action prhibited
under this chapter because of an actual or perceived physical or mental impairment whether or not
the impairment limits or is perceived to limit a major life activity." Id. at § 12102(3)(A). However,
a "regarded as claim" under § 12102(1)(C) cannot be based on "impairments that are transitory and
minor. A transitory impairment is an impairment with an actual or expected duration of 6 months
or less." Id. at § 12102(3)(B).
Although the ADAAA "makes it easier to prove a disability, it does not absolve a party from
proving one." Neely v. PSEG Tex., Ltd. P'ship, 735 F.3d 242, 245 (5th Cir. 2013). When the
plaintiff seeks to prove his ADA claim with circumstantial evidence, the McDonnell Douglas, Title
VII burden-shifting analysis applies. McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th
Cir. 2000). Thus, the plaintiff must first establish a prima facie case of disability discrimination by
demonstrating that: (1) he is disabled or regard as being disabled; (2) he is qualified for the job; (3)
he was subjected to an adverse employment action on account of his disability; and, (4) he was
replaced by or treated less favorably than non-disabled employees. Id. at 279-80. If the plaintiff
satisfies the prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. Thereafter, the burden shifts back to

15

"the plaintiff to establish by a preponderance of the evidence that the articulated reason was merely
a pretext for unlawful discrimination." Id.
La. Rev. Stat. § 23:323, which prohibits employers from discriminating against "qualified
disabled persons, on the basis of a disability," is substantially similar to the ADA. It defines a
"[d]isabled person" as "any person who has a physical or mental impairment which substantially
limits one or more of the major life activities, or has a record of such impairment, or is regarded as
having such an impairment." LA. REV. STAT. § 23:322(3). Although some courts have applied the
McDonnell Douglas burden-shifting analysis to claims made under the Louisiana law, in Bell v.
Hercules Liftboat Co., L.L.C., 524 Fed. Appx. 64, 67 n. 10 (5th Cir. 2013), the United States Court
of Appeals for the Fifth Circuit stated that it is not clear that Louisiana courts apply the McDonnel
Douglas analysis to state-law disability discrimination claims. However, the court stated that a
plaintiff bringing a claim for disability discrimination under Louisiana law must demonstrate that
he was: (1) "disabled" as defined by the Louisiana statute; and, (2) "otherwise qualified" at the time
of the complained-of employment action. Id. at 67.
Chen has not established that he was disabled. Chen alleged in his complaint that he
sprained his ankle on September 14, 2011, and that he returned to work on November 16, 2011, after
recuperating from the injury. Chen does not allege in his complaint that he had any disability that
limited a major life function when he returned to work. He testified at his deposition that his ankle
was "unstable," but that when he returned to work, he could walk and do his job. Further, Chen's
medical record dated November 14, 2011, states that "he has minimal discomfort. There is no
swelling. There is no discoloration. He has full active range of motion. There is no instability
about the joint." The medical provider recommended that Chen "[r]eturn to work without restrictions

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on 11/16/2011." Chen's December 6, 2011, medical record states that he complained of "a little
discomfort with lateral movement and also sometimes when climbing a ladder," and that he asked
to go back to physical therapy. That note also states that, although there was some tenderness over
the anterior talofibular ligament, there was "no gross instability about the joint," and his "range of
motion is excellent." The medical provider noted that he would request additional physical therapy
sessions from the workers' compensation provider, but "continue to allow [Chen] to work without
restriction." Similarly, Chen's medical record dated February 22, 2012, states that Chen complained
that he was having trouble with his ankle if he tried to work for more than 30 or 40 minutes, but
upon examination, Chen has a full range of motion, no instability about the joint, and no excessive
tenderness. The provider recommended a work status summary, but Chen felt "that he [was] able
to return to work without restriction at this time."
Chen claims that the approval of his October 3, 2012, application to the Louisiana Office of
Motor Vehicles for a temporary mobility impaired hang-tag evidences his disability while he worked
at Ocshner from November 2011 to April 2012. However, this application was made a year after
the initial injury and almost a year after Chen returned to work without restrictions. Thus, it is not
evidence that he was disabled when he returned to worked at Ochsner. Therefore, Ochsner's motion
for summary judgment is GRANTED as to Chen's claims under the ADA and La. Rev. Stat. §
23:322, et seq., which are DISMISSED WITH PREJUDICE.
C.

Retaliatory Discharge Due to Workers' Compensation Claim under La. Rev. Stat. §
23:1361 and Intentional Infliction of Emotional Distress
Ochsner argues that Chen's claim under La. Rev. Stat. § 23:1361 for retaliatory discharge

due to his making workers' compensation claim and his intentional infliction of emotional distress
claim are prescribed because they were filed more than one year after his termination. Chen argues
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that these claims are not prescribed because they were included in his state-court lawsuit against
Ocshner filed in the Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana
on April 10, 2013, which was within one year of his April 19, 2012, termination. Because the
federal question claims over which this court had original subject matter jurisdiction under 28 U.S.C.
§ 1331 have been dismissed, the court declines to exercise supplemental jurisdiciton over these
specific state law claims that Chen has informed the court are pending in a first-filed state court
action. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has
original jurisdiction").3 Thus, Chen's claim under La. Rev. Stat. § 23:1361 and his claim for
intentional infliction of emotional distress are DISMISSED WITHOUT PREJUDICE.
CONCLUSION
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Doc. #24)
is GRANTED as to plaintiff's claims brought under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; La. Rev. Stat. § 23:301, et seq.; the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq.; and, La. Rev. Stat. § 23:322, et seq., and those claims
are DISMISSED WITH PREJUDICE..
IT IS FURTHER ORDERED that plaintiff's claim brought under La. Rev. Stat. § 23:1361
and his claim for intentional infliction of emotional distress are DISMISSED WITHOUT
PREJUDICE.

3

The court exercised its supplemental jurisdiction over Chen's claims under La. Rev. Stat. § 23:301,
et seq. for national origin and race discrimination, hostile work environment and retaliation; and, La. Rev.
Stat. § 23:322, et seq., because those claims were substantially related to the claims arising under federal law.

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2nd
New Orleans, Louisiana, this _____ day of December, 2014.

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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