Richard v. St Tammany Parish Sheriff Department

Filing 35

ORDER AND REASONS granting in part and denying in part 27 Motion to Dismiss for Failure to State a Claim. The motion to dismiss is GRANTED as to Count III, pertaining to the ADA, and DENIED as to Counts I and II, pertaining to sexual harassment under Title VII, and Counts IV and V, pertaining to the ADEA. Signed by Judge Martin L.C. Feldman on 5/2/2018. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARK RICHARD

CIVIL ACTION

V.

NO. 17-9703

ST. TAMMANY PARISH SHERIFF’S
DEPARTMENT

SECTION "F"

ORDER AND REASONS
Before the Court is the defendant’s motion to dismiss for
failure to state a claim. For the following reasons, the motion to
dismiss is GRANTED as to Count III, pertaining to the ADA, and
DENIED as to Counts I and II, pertaining to sexual harassment under
Title VII, and Counts IV and V, pertaining to the ADEA.
Background
Mark Richard graduated from the St. Tammany Parish Sheriff’s
Office Police Academy on August 21, 2013 and shortly thereafter
began working at the Sheriff’s Office as a deputy. Beginning in
fall 2015, his coworker, Deputy Patrick Penton, repeatedly made
derogatory comments concerning Richard’s age. 1

Richard was forty-

nine years old. Richard claims that Penton would call him an “old
man,” ask if he could “still get it up,” and made other similar
comments in front of their colleagues and in public. Richard asked
Penton to stop making the comments, and then informed his superior,

1

This background section is not intended to be findings of fact.
It is simply an attempt to summarize the factual information
presented to the Court.
1

Corporal Tony Holloway, but Penton did not let up. On February 3,
2016,

shortly

after

making

the

complaint,

two

of

Richard’s

superiors, Lieutenant Wayne Wicker and Corporal Tony Holloway
notified

Richard

that

they

would

suspend

his

ticket

writing

privileges until March 1, 2016. They informed Richard that they
disagreed with the decision—Richard was the best field deputy on
their staff—but that they were under orders from Chief Fred Oswald.
Richard had the highest number of warrant arrests in his district,
and had received the St. Tammany Parish Sheriff Officer’s Fitness
Award twice.
On March 15, 2016, Richard asked Penton to join him for
dinner. There, Richard expressed that he found the derogatory agebased comments embarrassing and unprofessional and asked Penton to
stop making them, especially when they were on calls in front of
civilians. Penton continued to taunt Richard at dinner, asking
“What are you going to do? Report me?” When Richard answered in
the affirmative, Penton dismissed the threat, stating that he was
close friends with their superior, Corporal Holloway.
Three hours later, Richard was patrolling on Million Dollar
Road and observed a young man walking alone in the street. He
pulled over, turned on his lights, and spoke with the young man.
As he was obtaining his personal information, he heard a vehicle
screech and turn onto the road. The vehicle was speeding towards
Richard and the young man, despite the 15 mph speed limit. The
2

vehicle momentarily slowed, and when it was about 20-30 yards, it
accelerated towards Richard, and skidded right past him. Richard
alleges that the vehicle was clearly attempting to run him over.
He immediately contacted dispatch and notified them of what had
occurred.
The driver braked and exited from the vehicle, and stated
that she did not see him. Richard then recognized her as Michaela
Rodasta. He had several contacts with her over the past few years,
including enforcing a court order to take her three-year-old
daughter from her custody after her involvement in drug activity.
Within minutes, Deputy Penton and Corporal Holloway arrived. They
spoke with Rodasta, who claimed that Richard’s lights were not
illuminated, and dismissed her from the scene.
Three

days

later,

Lieutenant

Wayne

Wicker,

Richard’s

immediate rank, called him into his office to speak about the
incident

at

Million

Dollar

Road.

Although

Richard

vehemently

claimed at the scene that he had his lights on, Deputy Penton and
Corporal Holloway reported that they believed Rodasta’s account
that his lights were off. Richard gave Lieutenant Wicker a written
statement of the incident and of the disagreement he had with
Deputy Penton earlier that evening. He also stated that he wanted
to make a complaint about the age harassment. Lieutenant Wicker
assured him that he would make a report and that it would be
considered. To Richard’s knowledge, no report was ever made.
3

Two weeks later, on March 31, 2016, Richard slammed his hand
in a car door while on a call for duty, causing an open break of
his right pinky finger. He was treated at the St. Tammany Hospital
emergency room and sent home on Workman’s Compensation leave.
Richard was out of work for eleven weeks; his injury caused nerve
damage and required physical therapy. While on leave, he was
contacted by Human Resources on April 5, 2016. They informed him
that due to the lights incident on Million Dollar Road on March
15th, he was demoted from road patrol and assigned to the Radio
Room as a dispatcher. His annual pay would be reduced by $10,000.
He returned to work on June 22, 2016 with a doctor’s release
that read “light duty, but no typing at all.” He reported to the
Radio Room for his 12-hour shifts where he typed continuously,
which aggravated his injury and caused shooting pain and headaches.
Furthermore, he reported sexual harassment from his Radio Room coworkers. He worked with eight females and one young male. According
to the complaint, the female dispatchers used vulgar language on
every shift, including Richard’s immediate rank, Sergeant Amy
Popper and Corporal Brittany Harbin. They discussed the “penis
sizes they preferred, oral sex techniques, and positions in which
they liked to have sex.” They also “sen[t] a ruler around the room
and each female dispatcher held the ruler and indicated the length
of the penis size they preferred.” On at least four occasions,
Sergeant Poppler performed "what she called her 'sexy dance' . .
4

. where she squeezed her breast up and wiggled her butt across the
office.”
Richard complained of this behavior, calling it offensive and
unprofessional. After about three weeks in the Radio Room, Richard
was called into Lieutenant Toups’ office with Sergeant Popper.
They stated that it was apparent Richard was struggling in the
Radio

Room,

and

wondered

why

he

did

not

participate

in

conversations. Richard explained that his hand still hurt from the
injury and that he was experiencing shooting pain from constantly
typing.

Further,

he

stated

that

he

carefully

avoided

the

conversations because his participation could easily be construed
as sexually offensive, and that he wanted to make a complaint of
the harassment. Sergeant Popper replied that they were not used to
having men in the Radio Room, and that she would talk with the
others about his complaint.
When Richard returned to his desk, he was immediately assigned
to Corporal Harbin as a new unscheduled trainer. Corporal Harbin
instructed him to take a typing test, which he failed. He typed 22
words per minute, and a passing score is 25 words. Harbin continued
to administer unannounced written exams about three times a week.
For the three weeks following his meeting with Lieutenant Toups
and Sergeant Popper nobody would speak to him, and the workplace
environment turned increasingly hostile. On August 9, 2016 he was
called to human resources. He was informed that he would be
5

terminated “due to [his] struggling in the Radio Room” and his
slow typing pace. Richard reminded the Human Resources Sergeant
that he was still recovering from his hand injury, 2 but was told
that Chief Oswald had made the decision with input from Lieutenant
Toups, Sergeant Popper, and Corporal Harbin. His last day of
employment at St. Tammany Parish Sheriff’s Office was August 9,
2016.
Richard submitted an intake questionnaire with the Equal
Employment Opportunity Commission on August 24, 2016 and a formal
charge of discrimination on June 20, 2017. The EEOC issued a
Dismissal and Notice of Right to Sue letter on July 5, 2017. He
sued St. Tammany Parish Sheriff’s Department on September 27, 2017
in this Court. St. Tammany Parish Sheriff Randy Smith moved to
dismiss the complaint on December 4, 2017. Sheriff Smith moved to
dismiss the complaint because the sheriff department is not an
entity capable of being sued. Richard ultimately submitted an
amended complaint on February 6, 2018, and named Sheriff Smith as
the sole defendant. In light of the amended complaint, the Court

2

Later that day, Richard saw his doctor for his scheduled
appointment. His doctor concluded that Richard was experiencing
complications, evidenced by the significant swelling in his
forearm and elbow, as a result of repetitive typing. Richard is
still being treated for nerve damage from the injury.
6

dismissed Smith’s motion without prejudice, and Sheriff Smith
moved to dismiss the amended complaint on February 26, 2018. 3

I.
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir.

2012)(en

banc)).

But

in

deciding

whether

dismissal

is

warranted, the Court will not accept conclusory allegations in the
complaint as true. Id. at 502-03 (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

3

Sheriff Smith moved to dismiss the complaint and the amended
complaint. The amended complaint replaces the original complaint,
so the amended complaint is the only complaint that may be
dismissed.
7

555 (2007) (citations and footnote omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (“The
plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted

unlawfully.”).

This

is

a

“context-specific

task

that

requires the reviewing court to draw on its judicial experience
and common sense.” Id. at 679. “Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops
short

of

the

line

between

possibility

and

plausibility

of

entitlement to relief.” Id. at 678 (internal quotations omitted)
(citing Twombly, 550 U.S. at 557). “[A] plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’”, thus,
“requires

more

than

labels

and

conclusions,

and

a

formulaic

recitation of the elements of a cause of action will not do.”
Twombly,

550

U.S.

at

555

(alteration

in

original)

(citation

omitted).

II.
In his complaint, the plaintiff alleges that the defendant
violated the law through five counts: (1) subjected the plaintiff
to a hostile work environment, in violation of Title VII of the
Civil Rights Act; (2) terminated the plaintiff’s employment as
8

retaliation

for

his

complaints

of

a

sexually

hostile

work

environment, in violation of Title VII of the Civil Rights Act;
(4) discriminated against the plaintiff by failing to attempt to
find

a

reasonable

accommodation

for

his

finger

injury

and

disregarding his injury when assigning him to the Radio Room, in
violation of the Americans with Disabilities Act; (4) subjected
the plaintiff to harassment and a hostile work environment based
on his age, in violation of the Age Discrimination in Employment
Act; and (5) retaliated against the plaintiff for his complaints
of an ageist hostile work environment, in violation of the Age
Discrimination in Employment Act.
Each count of the complaint will be addressed in turn below.
But as a preliminary matter, the Court must determine whether the
plaintiff

exhausted

his

administrative

remedies.

“Employment

discrimination plaintiffs must exhaust administrative remedies
before

pursuing

claims

in

federal

court.”

Taylor

v.

Books

A

Million, Inc., 296 F.3d 376, 378-79. “Exhaustion occurs when the
plaintiff files a timely charge with the EEOC and receives a
statutory notice of right to sue.” Id. at 379. Although a “charge”
is not defined, the filing of one obligates EEOC “to initiate
informal dispute resolution processes.” Federal Exp. Corp. v.
Holowecki, 552 U.S. 389, 395-96, 400. The plaintiff must file the
charge within 180 days after the alleged unlawful employment
practice, but in “deferral states” like Louisiana, the filing
9

deadline is extended to 300 days. 42 U.S.C. § 2000e-5(e)(1); Conner
v. Louisiana Dept. of Health & Hosps., 247 Fed. Appx. 480, 481
(5th Cir. 2007)(unpublished). The last day Richard experienced any
alleged discrimination is the day he was terminated, August 9,
2016, so he must have submitted a discrimination charge by June 5,
2017. Richard submitted an intake questionnaire on August 24, 2016,
and filed his charge of discrimination on June 20, 2017.
The defendant contends that because Richard did not file his
charge of discrimination until fifteen days after the deadline, he
did not exhaust his administrative remedies, and his suit is
barred. The plaintiff argues that his intake questionnaire should
be considered part of the EEOC charge because he identified the
parties, alleged the grounds for the charge, checked a box giving
consent for the agency to look into his discrimination claims and
disclose his identity to the employer, 4 and confirmed that he
intended to file a charge of discrimination. The questionnaire was
accompanied by a three-page statement. Because the questionnaire
was detailed, Richard asserts, the charge of discrimination filed
on June 20, 2017 simply finalized the allegations he already
submitted and should relate back to the questionnaire.

4

Richard checked Box 2, which stated, “I want to file a charge of
discrimination, and I authorize the EEOC to look into the
discrimination I described above. I understand that the EEOC must
give the employer, union, or employment agency that I accuse of
discrimination information about the charge, including my name. .
. .”
10

The

survivability

of

Richard’s

claims

turns

on

whether

Richard’s questionnaire constitutes a charge. The U.S. Supreme
Court has held that an intake questionnaire may be a charge. For
a filing to be deemed a charge, it must comply with the relevant
EEOC regulations 5 and “must be reasonably construed as a request
for the agency to take remedial action to protect the employee’s
rights or otherwise settle and dispute between the employer and
the employee.” Federal Exp. Corp. v. Holowecki, 552 U.S. 389, 402.
The request-to-act requirement provides the agency a “mechanism to
separate

information

requests

from

enforcement

requests.”

The

Court noted that “under this permissive standard a wide range of
document might be classified as charges,” but that result was
acceptable because the reporting “system must be accessible to
individuals
statutory

who

have

mechanisms

no
and

detailed
agency

knowledge
processes.”

of

the

Id.

at

relevant
402-03.

Accordingly, the charge need not be a formal or lengthy document,
but instead “can be a form, easy to complete, or an informal
document,

easy

to

draft.”

Id.

at

403.

When

reviewing

the

questionnaire at issue in Holowecki, the Court noted that while
the intake questionnaire form alone may have not requested action,

5

The Court in Federal Express Corp. v. Holowecki defined charge
under the Age Discrimination in Employment Act. 552 U.S. 389, 402.
It held that the EEOC’s regulations for the ADEA only required
that the filing include “the allegation and the name of the charged
party.” Id.
11

the questionnaire was supplemented with a six-page affidavit. Id.
at 405. In the affidavit, the plaintiff asked the agency to “please
force [the employer] to end their age discrimination plan so we
can finish out our careers absent the unfairness and hostile work
environment . . . .” Id. The plaintiff also checked a box on the
questionnaire, like Richard, that gave consent to the agency to
disclose her identity to the employer. Id. at 406. The Court held
that the request for the agency to act combined with the waiver
elevated the questionnaire into a charge. 6 Id.
Richard’s questionnaire is sufficient to constitute a charge.
The three-page statement details the facts that are the basis for
all of Richard’s claims, and is nearly verbatim to the complaint.
The right to sue letter states that “THE EEOC IS CLOSING ITS FILE
ON THIS CHARGE FOR THE FOLLOWING REASON:” and then lists several
boxes. One reason is “Your charge was not timely filed with EEOC;
in other words, you waited too long after the date(s) of the
alleged discrimination to file your charge.” That box is unchecked.
The EEOC checked the box attached to the following reason:
The EEOC issues the follow determination: Based upon its
investigation, the EEOC is unable to conclude that the
information obtained established violations of the statutes.
This does not certify that the respondent is in compliance
with the statutes. No finding is made to any other issues
that might be construed as having been raised by this charge.”

6

The plaintiff in Holowecki did not file a formal discrimination
charge until after she filed her complaint in District Court.
12

(Emphasis added). The letter goes on to instruct Richard that he
“may file a lawsuit against the respondent(s) under federal law
based on this charge in federal or state court.” The formal charge
of discrimination was untimely, but the EEOC didn’t conclude that
Richard

failed

to

file

a

timely

charge,

indicating

that

the

questionnaire was sufficient to put the EEOC on notice that an
investigation was needed. The purpose of the demand requirement is
to notify the EEOC that investigation is needed. Thus, the Court
will

not

authorized

bar

the

the

plaintiff’s

EEOC

to

claim,

look

into

especially
his

when

claims

and

Richard
waived

confidentiality. See Holowecki, 552 U.S. at 406 (“Documents filed
by an employee with the EEOC should be construed, to the extent
consistent with permissible rules of interpretation, to protect
the employee's rights and statutory remedies.”); see also Becerra
v. Ms. Ellie’s Kitchen, No. 11-1833, 2012 WL 5363793, *4 (E.D. La.
Oct. 31, 2012)(holding that a questionnaire constituted a charge,
even though it had no demand statement, because the claimant
selected box 2 authorizing the EEOC to investigate his claims and
the

EEOC

began

investigating

the

claims

after

receiving

the

questionnaire).
A.
In Count I and II of the complaint, the plaintiff alleges
violations of Title VII of the Civil Rights Act. Specifically,
Richard contends that he was subjected to sexual harassment when
13

he worked in the radio room, that management was aware and condoned
the harassment, that he was subjected to a hostile work environment
and retaliation once he reported the harassment, and that his
complaint led to his termination.
Title VII of the Civil Rights Act of 1964 provides that “[i]t
shall be unlawful employment practice for an employer . . . to
fail or refuse to hire or to discharge any individual, or otherwise
to

discriminate

compensation,
because

of

against

terms,

such

any

individual with

conditions,

individual's

or

race,

privileges
color,

respect
of

to

his

employment,

religion,

sex,

or

national origin.” 42 U.S.C. § 2000e-2(a)(1). Sexual harassment
claims are actionable under this provision in two circumstances:
(1) “[w]hen . . . a tangible employment action resulted from a
refusal to submit to a supervisor's sexual demands” (often referred
to as quid pro quo claims); and (2) if there is “severe or
pervasive” sexual harassment creating a hostile work environment.” 7
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753-54
(1998). As to the first circumstance, “[a] tangible employment
action constitutes a significant change in employment status, such
as

hiring,

firing,

failing

to

promote,

reassignment

with

significantly different responsibilities, or a decision causing a

7

See Casiana v. AT&T Corp., 213, F.3d 278, 283-84 (5th Cir. 2000)
for a thorough road map of actionable Title VII sexual harassment
claims and the defenses available based on the factual
circumstances. If there is no
14

significant change in benefits.” Id. at 761. But quid pro quo cases
are typically “based on threats which are carried out,” 8 which is
“distinct from bothersome attentions or sexual remarks that are
sufficiently

severe

or

pervasive

to

create

a

hostile

work

environment,” the second type of actionable claim.” Id. at 751.
A hostile work environment claim is only actionable if the
harassment is “so ‘severe or pervasive’ as to ‘alter the conditions
of

the

victim’s

employment

and

create

an

abusive

work

environment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 786
(1998) (quoting Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986)). For Richard’s claim to be actionable under the statute,
he must allege “a sexually objectionable environment” that is “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.” Id. at 787. When evaluating whether
the workplace was hostile, courts consider the frequency and
severity of the conduct, “whether it is physically threatening or
humiliating,” and “whether it unreasonably interferes with the
employee’s work performance.” Id. at 787-88 (quoting Harris v.
Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). “[S]imple teasing”
and occasional remarks are not actionable; Title VII is not a

8

See Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir. 1982)
(“[In] [t]he typical case of quid pro quo sexual harassment . . .
the supervisor relies upon his apparent and actual authority to
extort sexual consideration from the employee.”).
15

“general civility code.” Id. (quoting Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 81 (1998)). But a claim is actionable
despite a lack of physical contact. Royal v. CCC&R Tres Arboles,
L.L.C., 736 F.3d 396, 403 (5th Cir. 2013). Unlike quid pro quo
claims,

there

is

no

requirement

that

the

plaintiff

suffer

a

tangible employment action. Jones v. Flagship Int’l, 793 F.2d 714,
720 (5th Cir. 1986). However, “the absence of such detriment
requires

a

commensurately

higher

showing

that

the

sexually

harassing conduct was pervasive and destructive of the working
environment.” Id.
Richard faced a tangible employment action shortly after he
complained of sexual harassment; he was fired. He illustrated an
extremely uncomfortable environment where several co-workers and
superiors explicitly discussed sex in an inappropriate manner in
the workplace. Accordingly, his claim is only actionable if he
suffered severe or pervasive sexual harassment that both he and a
reasonable person would find hostile and abusive. He meets his
burden at this stage of the case.
Richard alleges that his co-workers and superiors used vulgar
and sexually explicit language during ever shift. They discussed
oral sex techniques, debated sexual positions, and passed a ruler
to

every

operator

to

inquire

their

preferred

penis

size.

Additionally, on four occasions, the plaintiff’s immediate rank,
Sergeant Amy Poppler, allegedly performed a “sexy dance” where
16

“she squeezed her breasts and wiggled her butt across the office.”
The defendant contends that Richard fails to allege that these
conversations

interfered

with

his

work.

The

Court

disagrees.

Richard pleads he did not participate in the conversations out of
fear that his comments could be construed as sexual harassment,
and complained to his co-workers and superiors that he found the
activity offensive. He was also called into a meeting with his
superiors

where

they

asked

why

he

did

not

participate

in

conversations in the office. After he complained to them, he was
given

a

series

of

tests

and

eventually

fired.

The

complaint

sufficiently alleges that he found the behavior and conversations
subjectively offensive.
Taking the allegations as true, a reasonable jury might
conclude

that

occasional

his

co-workers

remarks.

Further,

went

beyond

following

simple
his

teasing

complaint,

and
the

plaintiff faced workplace consequences and was fired within a few
weeks. 9

The

plaintiff

did

not,

however,

experience

physical

threats, nor was the conduct especially severe. But the Fifth
Circuit has found that a hostile work environment could exist even
if the offensive conduct was verbal, non-threatening, or only

9

The plaintiff began work in the radio room on June 22, 2016 and
was terminated six weeks later on August 9, 2016. It is not clear
from the complaint when he spoke to Lieutenant Toups and Sergeant
Popper about the sexual harassment, but it was no later than midJuly.
17

lasted a few days, as long as it was pervasive. See FarpellaCrosby v. Horizon Health Care, 97 F.3d 803, 805 (5th Cir. 1996)
(upholding a district court’s denial of the plaintiff’s employer’s
motions for judgment as a matter of law after a jury found the
employer liable for a hostile work environment when the plaintiff’s
supervisor frequently commented and inquired about the plaintiff’s
sexual life); Royal, 736 F.3d at 398 (holding that there was a
genuine

dispute

of

material

fact

of

whether

the

plaintiff

experienced workplace sexual harassment when she was fired for
unspecific reasons after complaining that two coworkers visited
her small office several times in the four-day period she worked
there, hovered over her, and sniffed her in a sexually suggestive
manner). Accordingly, the complaint makes sufficient allegations
to state a Title VII sexual harassment claim that survives the
pleading stage.
Additionally, Richard claims that the defendant retaliated
against

him

when

he

complained

of

the

sexual

harassment,

in

violation of Title VII. The defendant contends that to establish
a prima facie case of retaliation under Title VII, the plaintiff
must show “(1) that [he] engaged in activity protected by Title
VII; (2) that an adverse employment action occurred; and (3) that
there was a causal connection between the participation in the
protected activity and the adverse employment decision.” Flagship
Int’l, 793 F.2d at 724. Although the defendant properly identified
18

the “framework that governs the standard of proof at trial, ‘a
plaintiff need not make out a prima facie case of discrimination
in order to survive a Rule 12(b)(6) motion to dismiss for failure
to state a claim.’” Stone v. Louisiana Dept. of Revenue, 590
Fed.Appx. 332, 339 (5th Cir. 2014) (quoting Raj v. Louisiana State
University, 714 F.3d 322, 331 (5th Cir. 2013). Instead Richard is
only required to “plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged,” id. (quoting Iqbal, 556 U.S. at 678), which
includes “alleg[ing] facts sufficient to state all the elements of
h[is] claim.” Id. (quoting Mitchell v. Crescent River Port Pilots
Ass'n, 265 Fed.Appx. 363, 370 (5th Cir. 2008)). The plaintiff has
done so.
“To state a claim for retaliation in violation of Title VII,
the

plaintiff

must

allege

that

her

employer

took

an

adverse

employment action against her in retaliation for engaging in
protected conduct.” Stone, 590 Fed.Appx. at 339. An employee has
engaged in a protected conduct if he opposed any practice that
Title VII makes unlawful. Royal, 736 F.3d at 401. The plaintiff
must only have a “reasonable belief” that the practice is unlawful.
Id. at 401 n.2 (quoting Payne v. McLemore's Wholesale & Retail
Stores, 654

F.2d

1130,

1140

(5th

Cir.

1981)).

Taking

the

allegations in the complaint as true, Richard has sufficiently
alleged retaliation under Title VII to survive a motion to dismiss.
19

He alleged sufficient facts to show that he engaged in a protected
activity by alerting his superior of the frequent sexual harassment
he experienced in the radio room and stating that he would like to
make a complaint. Additionally, when he reported the harassment,
one of the alleged perpetrators, Sergeant Amy Poppler, was present
and informed Richard that she would inform his co-workers in the
radio room of Richard’s complaint. Immediately, he was assigned to
a new trainer, Corporal Brittany Harbin, another of his alleged
harassers, who immediately required him to take frequent and
unannounced

typing

and

writing

quizzes.

Over

the

subsequent

several weeks, his co-workers ceased speaking to him. About six
weeks after his transfer into the Radio Room and three weeks after
he complained of the harassment to Lieutenant Toups and Sergeant
Popper, he was terminated from the Sherriff’s Department “due to
[Richard’s] struggling in the Radio Room.” The response of his coworkers and superiors, the immediate administration of tests, and
the justification for termination—that he was struggling even
though

he

had

reported

harassment—pleads

a

plausible

causal

connection.
B.
In

Count

discriminated

III,

the

against

plaintiff

him

because

alleges
of

his

that

the

finger

defendant

injury,

in

violation of the American with Disabilities Act. The ADA prohibits
employers from discriminating against an employee on the basis of
20

disability if the employee could perform the essential functions
of the job, or reasonable accommodations would allow him to perform
the essential functions. 42 U.S.C. §§ 12111-12; Cannon v. Jacobs
Field Services North America, Inc., 813 F.3d 586, 591, 592 (5th
Cir. 2016). A plaintiff states a claim for relief if he alleges
that: “(1) he has a disability . . . (2) that he was qualified for
the job; and (3) he was subject to an adverse employment decision
on account of his disability.”

Cannon, 813 F.3d at 590.

The ADA defines “disability” as: (1) “a physical or mental
impairment

that

activities

of

substantially

such

limits

individual;” 10

(2)

one
“a

or

more

record

major
of

life

such

an

impairment; or” (3) “being regarded as having such an impairment.”
41 U.S.C. § 12102. First, to determine whether a plaintiff’s
impairment substantially limited a major life activity, courts
consider “(1) the nature and severity of the impairment, (2) its
duration or expected duration, and (3) its permanent or expected
permanent or long-term impact.” Pryor v. Trane Co., 138 F.3d 1024,
1026 (5th Cir. 1998). The Fifth Circuit has held that impairments
like carpel tunnel syndrome that may prevent an employee from
performing a particular job does not constitute a substantial

10

The ADA provides that “major 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.”
21

limitation

of

a

major

life

activity.

Moreno

v.

Brownlee,

85

Fed.Appx. 23, 27 (5th Cir. 2004)(unpublished). Following this
Circuit’s

precedent,

Richard’s

broken

pinky

finger

does

not

substantially limit any major life activities. His injury is not
permanent. Richard did not work for eleven weeks following the
break and experienced nerve damage, but his doctor subsequently
released him to return to work and he regained use of his hand,
including his pinky. His injury precludes him from typing quickly
for long periods of time, but that limitation is not sufficient to
establish

a

disability

under

the

ADA,

according

to

the

case

literature. Richard has alleged no facts that elevate his injury
from mere temporary inconvenience to a life-disrupting disability.
C.
In

Counts

IV

and

V,

Richard

alleges

that

the

defendant

violated the Age Discrimination in Employment Act by creating a
hostile work environment and retaliating against the plaintiff for
making age-based complaints. Richard contends that Deputy Penton
frequently made offensive ageist comments towards Richard, with
the full knowledge of Corporal Holloway and Chief Oswald. He
contends that his complaints of the ageist work environmental was
the sole reason Chief Oswald took away Richard’s ticket-writing
privileges and demoted him to the Radio Room.
The ADEA prohibits an employer from taking adverse action
against its employee because of the employee’s age. Gross v. FBL
22

Fin. Servs., Inc., 557 U.S. 167, 170 (2009); 29 U.S.C. § 623(a).
It also creates a cause of action for hostile work environments
based on age discrimination. Dediol v. Best Chevrolet, Inc., 655
F.3d 435, 441 (5th Cir. 2011).

To establish a prima facie case of

discriminatory treatment based on age, the claimant must prove
“that (1) he was over the age of 40; (2) the employee was subjected
to harassment, either through words or actions, based on age; (3)
the

nature

of

the

harassment

was

such

that

it

created

an

objectively intimidating, hostile, or offensive work environment;
and (4) there exists some basis for liability on the part of the
employer.” Id. A work environment is hostile if is it “permeated
with discriminatory intimidation, ridicule, and insult, that is
sufficiently pervasive to alter the conditions of the victim's
employment” and both objectively and subjectively offense. Id.
(quoting Alaniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th Cir.
2009)). To evaluate whether conduct is objectively offensive,
courts consider: “(1) the frequency of the discriminatory conduct;
(2) its severity; (3) whether it is physically threatening or
humiliating, or merely an offensive utterance; and (4) whether it
interferes with an employee's work performance.” Id. (quoting EEOC
v. WC&M Enters., 496 F.3d 393, 399 (5th Cir. 2007)). The Fifth
Circuit has held that repeated profane references to the claimant’s
age

within

the

work

setting

could

amount

to

a

hostile

work

environment claim. Id. at 443-444. However, a plaintiff need not
23

allege a prima facie case to state a plausible age discrimination
claim. Haskett v. Continental Land Resources, L.L.C., 668 Fed.
Appx. 133, 134 (5th Cir. 2016)(unpublished). Nonetheless, the
consideration of the elements is helpful in determining whether
the plaintiff met the plausibility standard. Id.
Richard is over forty years old. He alleges that Deputy Penton
“constantly” made age-based derogatory comments, such as calling
him an “old man” and asking if he “can still get it up.” The
comments were made privately and also in front of co-workers and
members of the public. He alleges that he reported the comments to
his superior, but Penton did not relent, and mocked him for
threatening to report him again. Richard alleges that the vulgar
comments

occurred

physically

with

threatened,

regularity,
he

was

and

although

humiliated.

The

he

was

not

plaintiff

has

alleged sufficient facts for the Court to reasonably infer that he
could have experienced a hostile work environment because of the
age-based comments.
Richard also contends that the defendant retaliated against
him for complaining of the ageist comments. To establish a prima
facie retaliation claim under the ADEA, the claimant must show
“(1) that he engaged in a protected activity, (2) that there was
an adverse employment action, . . . (3) that a causal link existed
between the protected activity and the adverse employment action”
and (4) that he was qualified to hold the position. Wooten v.
24

McDonald Transit Ass’n. Inc., 788 F.3d 490, 496-497 (5th Cir.
2015).

Again,

consideration

of

the

prima

facie

framework

is

helpful, but not determinative, in assessing whether Richard pled
a plausible cause of action.
Richard alleges that he reported Penton’s ageist comments to
Corporal Holloway. Holloway and Penton are close personal friends,
and instead of correcting Penton’s conduct, he informed Chief
Deputy Oswald that Penton was making baseless claims. Shortly
thereafter, Oswald ordered Lieutenant Wicker to suspend Richard’s
ticket writing privileges, but gave no reason. Wicker told the
plaintiff that he was the best field deputy on the staff, that he
believed Oswald’s actions were “wrong and illegal,” and that Oswald
appeared to be “hunting” the plaintiff. Richard also alleges that
his demotion from patrol to the radio room after the incident on
Million Dollar Road was solely because he complained of the hostile
work environment. The plaintiff claims that his complaint, a
protected activity, was the sole reason he experienced adverse
employment actions, specifically the loss of his ticket writing
privileges and his demotion, which resulted in a salary reduction
of $10,000. His allegations that he was immediately punished
shortly after he made his complaint is sufficient to support a
pleading that a causal connection is plausible. Richard’s claims
survive the pleading stage.

25

Accordingly, IT IS ORDERED: that the defendant’s motion to
dismiss is GRANTED as to Count III, pertaining to the ADA, and
DENIED as to Counts I and II, pertaining to sexual harassment under
Title VII, and Counts IV and V, pertaining to the ADEA.

New Orleans, Louisiana, May 2, 2018

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

26