Ducharme v. Crescent City Deja Vu, L.L.C. et al
ORDER AND REASONS: For the reasons set forth in document, Crescent City Deja Vu, LLC's 62 Motion for Judgment on the Pleadings is DENIED in part and DENIED as moot in part and Defendant's 61 MOTION for Summary Judgment is GRANTED as to Ms. Ducharme's discrimination claims under Title VII and the Louisiana Employment Discrimination Law, and remains under submission as to Ms. Ducharme's FLSA claims. Signed by Magistrate Judge Janis van Meerveld on 5/13/2019.(ajn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 18-4484
CRESCENT CITY DÉJÀ VU, L.L.C., ET AL.,
JANIS VAN MEERVELD
ORDER AND REASONS
Before the Court are:
(1) Crescent City Déjà Vu, L.L.C.’s Motion for Judgment on the Pleadings regarding Nicole
Ducharme’s claims under the federal Pregnancy Discrimination Act and the Louisiana
Pregnancy Discrimination Act (Rec. Doc. 62); and
(2) the Motion for Summary Judgment seeking dismissal of all of Nicole Ducharme’s present
claims filed by defendants Crescent City Deja Vu, L.L.C. (“CCDV”) and Mary Salzer
(Rec. Doc. 61).
For the following reasons, CCDV’s Motion for Judgment on the Pleadings is DENIED in
part and DENIED as moot in part; and Defendants’ Motion for Summary Judgment is GRANTED
as to Ms. Ducharme’s discrimination claims under Title VII and the Louisiana Employment
Discrimination Law, and as to Ms. Ducharme’s Fair Labor Standards Act claims, the Motion
remains under submission.
Plaintiff Nicole Ducharme alleges that defendants violated Title VII of the Civil Rights Act
and the Louisiana Pregnancy Discrimination Act (“LPDA”) when she was unlawfully fired from
her employment at the Déjà Vu Bar & Grill1 where she worked as a bartender and server after
terminating her pregnancy. She also alleges that the defendants violated her rights under the Fair
Labor Standards Act (“FLSA”) by failing to make required disclosures about the tip credit they
were taking, by requiring her to “tip out” employees who worked in the kitchen, and by requiring
her to perform tasks she could not get tipped for (like cleaning, stocking, and ordering products)
without paying minimum wages for those tasks. Ducharme filed this lawsuit against her employer
CCDV and her manager Ms. Salzer on April 30, 2018. The parties consented to proceed before
the undersigned magistrate judge, and trial is set to begin on June 10, 2019.
Facts Relevant to Discrimination Claims
In September 2017, Ms. Ducharme told Ms. Salzer that she had become pregnant and that
she was planning on having an abortion. Salzer Decl., Rec. Doc. 61-3, at 3. She requested two days
off to have the procedure, and Ms. Salzer said she could and arranged the schedule accordingly.
Id. Ms. Salzer declared that she “was not upset at Nicole for having an abortion,” and she has no
opinion about abortion. Id. at 28-30; Salzer Depo., Rec. Doc. 61-7, at 106-108. In her brief, she
asserts that she did not have any reaction to the news of Ms. Ducharme’s plan to abort. Ms.
Ducharme disputes this characterization of Ms. Salzer’s reaction. Ms. Ducharme testified that Ms.
Salzer began treating her “crappily” and “indifferently,” and changed her mind about giving Ms.
Ducharme a ride. Ducharme Depo., Rec. Doc. 61-9, at 77. Ms. Salzer asserts that while Ms.
Ducharme was off work to have the procedure, server John Robarge came to her and told her that
he had seen Ms. Ducharme drinking many times while she was still on the clock, but after Ms.
Salzer had left for the day. Salzer Decl., Rec. Doc. 61-3, at 3. In his declaration, Mr. Robarge
confirmed that he informed Ms. Salzer that he had seen Ms. Ducharme drinking. Robarge Decl.,
Plaintiff alleges, and CCDV admits, that CCDV does business as Deja Vu Bar & Grill.
Rec. Doc. 61-6, at 2. Ms. Salzer asserts that she went to the security tapes to see if she could
confirm that Ms. Ducharme was drinking while on the clock. Salzer Decl., Rec. Doc. 61-3, at 3.
She observed Ms. Ducharme making an alcoholic drink and drinking it while still behind the bar.
Id. The video also shows Ms. Ducharme giving a drink to another person without charging him
for it. Id. CCDV decided to terminate Ms. Ducharme for drinking on the job. Ducharme Separation
Notice, Rec. Doc. 61-14. The CCDV handbook provides that AN EMPLOYEE INVOLVED IN
ANY OF THE FOLLOWING CONDUCT MAY RESULT IN DISCIPLINARY ACTION UP TO
AND INCLUDING IMMEDIATE TERMINATION WITHOUT A WRITTEN WARNING.
CCDV Handbook, Rec. Doc. 61-10, at 10-11. The referenced list of infractions includes “[u]se of
or being under the influence of alcohol during scheduled shift.” Id. And Ms. Ducharme admitted
that she knew there was a rule against drinking alcohol on the job, although she contends that
everyone did so anyways. Ducharme Depo., Rec. Doc. 61-9, at 16. Ms. Salzer testified that she
had previously given Ms. Ducharme a verbal warning that she was not allowed to drink on the job.
Salzer Depo., Rec. Doc. 61-7, at 3-4. Ms. Ducharme disputes this and has declared that she never
received a verbal warning. Ducharme Decl., Rec. Doc. 68-2, at 1.
Ms. Salzer says she also looked at the tapes to see if Ms. Ducharme’s boyfriend, Marshall
Rudd, was drinking on the job. Salzer Decl., Rec. Doc. 61-3, at 3. She had heard rumors that he
had been drinking, but because he works the graveyard shift, Ms. Salzer had never confirmed it.
Id. After watching the video for a brief time, she saw Mr. Rudd pouring a drink and drinking it
while on the clock. Id. She decided to terminate him as well. Id.
Motions before the Court
CCDV has filed a Motion for Judgment on the Pleadings regarding Ms. Ducharme’s claims
under the federal Pregnancy Discrimination Act and the LPDA for failing to plead the requisite
number of employees for the PDA or LPDA to apply and arguing further that neither the PDA nor
the LPDA recognize an abortion as a protected characteristic. CCDV and Ms. Salzer have filed a
Motion for Summary Judgment, arguing that Ms. Ducharme’s FLSA minimum wage claim fails
because she earned more than the minimum wage, that her tip pool claim fails because there was
no tip pool, and that her unlawful termination claim fails because she admits to drinking on the job
in violation of CCDV rules. They urge that Ms. Ducharme’s lawsuit should be dismissed in its
entirety. At this time, the Court addresses CCDV’s motion for summary judgment on Ms.
Ducharme’s unlawful termination claim. The court will address the remainder of defendants’
motion for summary judgment at the same time as it addresses Ms. Ducharme’s pending Motion
for Partial Summary Judgment arguing that CCDV failed to provide Ms. Ducharme with the FLSA
required notifications before an employer can take a tip credit.
Law and Analysis
1. Standard for Judgment on the Pleadings
“A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard
as a motion to dismiss under Rule 12(b)(6).” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.
2008). “[T]he central issue is whether, in the light most favorable to the plaintiff, the complaint
states a valid claim for relief.” Id. (quoting Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th
Cir. 2001) (alteration in original). “The court's review is limited to the complaint, any documents
attached to the complaint, and any documents attached to the motion to dismiss that are central to
the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010).
To survive a motion for judgment on the pleadings or a Rule 12(b)(6) motion to dismiss,
“the plaintiff must plead enough facts to state a claim to relief that is plausible on its face. Factual
allegations must be enough to raise a right to relief above the speculative level.” In re Katrina
Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). On that point, the United States
Supreme Court has explained:
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. 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. 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.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted).
a. Number of Employees
CCDV argues that judgment on the pleadings is appropriate as to Ducharme’s pregnancy
discrimination claims because she has failed to plead any facts that would satisfy her burden of
proving that CCDV has the requisite number of employees for Title VII or the LPDA to apply.
Title VII applies to employers who have “fifteen or more employees for each working day in each
of twenty or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 2000e(b).
The LPDA applies to employers who employ “more than twenty-five employees within this state
for each working day in each of twenty or more calendar weeks in the current or preceding calendar
year.” La. Rev. Stat. § 23:341(A). CCDV points out that neither Ducharme’s First Amended
Complaint nor her proposed Second Amended Complaint contain any allegations regarding the
number of individuals employed by CCDV.
Ms. Ducharme admits that her complaint does not explicitly allege that CCDV had more
than 15 or 25 employees. (Rec. Doc. 70, at 3). But, she points out that the complaint references
Ms. Ducharme’s work schedule. In opposition to CCDV’s motion, she attaches a schedule dated
August 28, 2017 that lists 26 employees. She argues that this document should be incorporated by
reference into her pleadings. Alternatively, she requests leave to amend to explicitly allege that
CCDV has more than 25 employees.
In reply, CCDV argues that the work schedule cannot be incorporated by reference because
the August 28, 2017, schedule is not referred to specifically, nor is it central to Ms. Ducharme’s
claims as required for documents to be considered part of the pleadings. Even if the document was
considered by the court, CCDV submits that Ms. Ducharme still has not met the pleading
requirements because the one-week schedule does not show 26 employees (according to CCDV,
one of the individuals listed was an IT consultant according to a declaration submitted with
CCDV’s reply memorandum), nor does it show that CCDV had more than 25 employees for more
than twenty calendar weeks. Finally, CCDV argues that Ducharme should not be allowed to amend
her complaint because she has already done so once and has sought to do so a second time without
alleging a number of employees.
The court finds that Ms. Ducharme’s pleading fails to sufficiently allege the minimum
number of employees under Title VII or LPDA. References to being off the schedule or checking
her schedule are insufficient to incorporate the August 28, 2017, schedule into the complaint.
Moreover, even if it had been incorporated, as CCDV argues, that schedule is insufficient to
amount to an allegation of the minimum number of employees for the minimum number of weeks.
This leaves the issue of whether Ms. Ducharme should be allowed to amend her complaint to
correct this deficiency.
The court finds it appropriate to allow Ms. Ducharme to amend her pleading to allege the
number of employees. As discussed below, the parties have briefed the merits of the issue, and it
is clear that Ms. Ducharme has sufficient evidence as to whether CCDV has the requisite number
of employees to survive summary judgment. Her amendment is, thus, important so that she can
maintain her claim. Further, the court finds that CCDV would not suffer any prejudice by the
amendment being allowed. It has defended this lawsuit for over a year without asserting that it is
not covered by Title VII or the LDPA.
Nonetheless, because the court has determined it most efficient to address the merits of Ms.
Ducharme’s discrimination claims and has concluded that Ms. Ducharme cannot survive summary
judgment, it will not be necessary for Ms. Ducharme to file an amended pleading at this time. In
assessing defendants’ motion for summary judgment, the court has assumed that Ms. Ducharme
had already properly plead the number of employees. Accordingly, as to number of employees
alleged, the motion for judgment on the pleadings is DENIED as moot.
b. Abortion as a Protected Characteristic Under Title VII
CCDV argues that Ducharme’s pregnancy discrimination claims should be dismissed
because Title VII does not recognize abortion as a protected characteristic. Title VII as amended
by the Pregnancy Discrimination Act prohibits employers from taking adverse employment actions
“because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C.
§2000e(k). It also provides that:
women affected by pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment-related purposes, including receipt of benefits
under fringe benefit programs, as other persons not so affected but similar in their
ability or inability to work, and nothing in section 2000e-2(h) of this title shall be
interpreted to permit otherwise. This subsection shall not require an employer to
pay for health insurance benefits for abortion, except where the life of the mother
would be endangered if the fetus were carried to term, or except where medical
complications have arisen from an abortion: Provided, That nothing herein shall
preclude an employer from providing abortion benefits or otherwise affect
bargaining agreements in regard to abortion.
Id. CCDV argues that abortion is not pregnancy, childbirth, or a medical condition related to
pregnancy and that Congress could have included abortion as a protected characteristic but did not
do so. It insists that when interpreting statutory text, the court’s “task is to give effect to the
language Congress has enacted, not to read additional meaning into the statute that its terms do not
convey.” Yates v. Collier, 868 F.3d 354, 369 (5th Cir. 2017). CCDV notes that although other
circuits have found abortion to be a protected characteristic, the Fifth Circuit has not done so.
In opposition, Ducharme points out that the only appellate courts to have addressed the
issue of whether abortion is covered by Title VII have found that it is. Doe v. C.A.R.S. Prot. Plus,
Inc., 527 F.3d 358, 364 (3d Cir.), order clarified on other grounds, 543 F.3d 178 (3d Cir. 2008)
(“Clearly, the plain language of the statute, together with the legislative history and the EEOC
guidelines, support a conclusion that an employer may not discriminate against a woman employee
because she has exercised her right to have an abortion. We now hold that the term ‘related medical
conditions’ includes an abortion.”); Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir.
1996) (“Thus, the plain language of the statute, the legislative history and the EEOC guidelines
clearly indicate that an employer may not discriminate against a woman employee because ‘she
has exercised her right to have an abortion.’). Ducharme cites to legislative history indicating that
abortion is covered by the pregnancy language. H.R. Rep. No. 95-948, at 7 (1978), as reprinted in
1978 U.S.C.C.A.N. 4749, 4755 (“Because the bill applies to all situations in which women are
‘affected by pregnancy, childbirth, and related medical conditions,’ its basic language covers
decisions by women who chose to terminate their pregnancies. Thus, no employer may, for
example, fire or refuse to hire a woman simply because she has exercised her right to have an
abortion.”). She also points out that the Equal Employment Opportunity Commission guidelines
The basic principle of the Act is that women affected by pregnancy and related
conditions must be treated the same as other applicants and employees on the basis
of their ability or inability to work. A woman is therefore protected against such
practices as being fired, or refused a job or promotion, merely because she is
pregnant or has had an abortion.
29 C.F.R. § 1604, App. She adds that although the Fifth Circuit has not addressed abortion, it has
found other pregnancy related medical conditions are covered. E.g., E.E.O.C. v. Houston Funding
II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013) (“[W]e hold that lactation is a related medical condition
of pregnancy for purposes of the PDA.”) Harper v. Thiokol Chem. Corp., 619 F.2d 489, 491–92
(5th Cir. 1980) (“[P]olicy of requiring women who have been on pregnancy leave to have sustained
a normal menstrual cycle before they can return to work clearly deprives female employees of
employment opportunities and imposes on them a burden which male employees need not
In reply, CCDV insists the scope of Title VII is an undecided issue in the Fifth Circuit. It
argues that reference to the legislative history is inappropriate where the statutory text is clear. It
adds that Ms. Ducharme has cited the deliberations of the House Committee on Education and
Labor and that these notes do not amount to legislative history. CCDV seeks to distinguish the
Fifth Circuit cases regarding pregnancy related medical conditions like lactation and menstruation
by arguing that Ms. Ducharme has not alleged that CCDV discriminated against her because of
any medical condition that led to her decision to undergo an abortion. Instead, CCDV insists, she
alleges the abortion itself led to her termination.
The court notes that in paragraph 26 of Ms. Ducharme’s complaint, she states that she got
very sick and anemic during her pregnancy, that she had health problems including gestational
diabetes and hypertension during a previous pregnancy, and that she was forty years old and had
concerns with being pregnant for that reason. (Rec. Doc. 25, at 3-4). She asserts that she decided
to get a “medical abortion.” Id. at 4. She alleges that when she informed her supervisor, Ms.
Salzer, that she needed two days off to get an abortion, Ms. Salzer gave her a serious and
disapproving look. Id. She alleges that she then told Ms. Salzer her health reasons for needing to
terminate the pregnancy. Id. She alleges that CCDV terminated her employment on the basis of a
medical condition related to her pregnancy. Id. at 7.
The court finds that abortion is encompassed within the statutory text prohibiting adverse
employment actions “because of or on the basis of pregnancy, childbirth, or related medical
conditions.” While an abortion is not a medical condition related to pregnancy in the same way as
gestational diabetes and lactation, it is a medical procedure that may be used to treat a pregnancy
related medical condition. If a person has to take breaks to pump milk because she is lactating as
a result of a pregnancy, she is protected from termination by Title VII. Houston Funding, 717 F.3d
at 430. If a person has to have an abortion because she is suffering from anemia as a result of a
pregnancy, she, too, is protected from termination. Moreover, an abortion is only something that
can be undergone during a pregnancy. Title VII requires that “women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same for all employment-related
purposes.” 42 U.S.C.A. § 2000e(k). A woman terminated from employment because she had an
abortion was terminated because she was affected by pregnancy. The conclusion that an abortion
is protected by the pregnancy language of Title VII is consistent with the only two courts of appeals
to have ruled on the issue. C.A.R.S. Prot. Plus, Inc., 527 F.3d at 364; Turic, 85 F.3d at 1214. It is
consistent with the EEOC’s own interpretation. 29 C.F.R. § 1604, App. As the Third Circuit noted
in C.A.R.S., the interpretation of “the enforcing agency is entitled to great deference. Griggs, 401
U.S. 424, 433–34 (1971). Accordingly, the court holds that Title VII as amended by the Pregnancy
Discrimination Act extends to abortions.
There is no dispute that Ms. Ducharme alleges that she was terminated for having an
abortion. She also alleges that she underwent the abortion because she was suffering from anemia,
because she had previously suffered from gestational diabetes and hypertension during pregnancy,
and because she was at an advanced age for pregnancy. Just as the need for breaks to pump breast
milk or requiring an employee to have a normal menstrual cycle before they can return to work
“imposes on [women] a burden which male employees need not suffer,” so too does the
termination of a pregnancy, whether medically necessary or not. See Harper, 619 F.2d at 491-922.
CCDV is not entitled to judgment on the pleadings dismissing Ms. Ducharme’s Title VII
pregnancy discrimination claim for failing to plead a protected characteristic.
c. Abortion as a protected characteristic under the LPDA.
CCDV also argues that abortion is not a protected characteristic under the LPDA. It submits
that the Louisiana legislature has expressly stated that abortion is contrary to the “longstanding
policy of this state.” La. Rev. Stat. § 40:1061.8 (“The Legislature finds and declares that the
longstanding policy of this State is to protect the right to life of the unborn child from conception
by prohibiting abortion impermissible only because of the decisions of the United States Supreme
Court and that, therefore, if those decisions of the United States Supreme Court are ever reversed
or modified or the United States Constitution is amended to allow protection of the unborn then
the former policy of this State to prohibit abortions shall be enforced.”). It points out that Louisiana
law prohibits employers from taking adverse actions against employees “for refusal to take part
in, recommend or counsel an abortion for any woman.” La. Rev. Stat. § 40:1061.2(B). Yet there
is no such language protecting abortion under the LPDA. CCDV argues that federal courts should
not recognize a cause of action for abortion discrimination when no Louisiana court has done so.
Johnson v. Sawyer, 47 F.3d 716, 729 (5th Cir. 1995) (“We have long followed the principle that
we will not create ‘innovative theories of recovery or defense’ under local law, but will rather
merely apply it ‘as it currently exists.’”) (quoting Galindo v. Precision Am. Corp., 754 F.2d 1212,
1217 (5th Cir. 1985)).
Ms. Ducharme argues that abortion is protected under the LPDA, which, like Title VII,
prohibits an employer from discriminating on the basis of “pregnancy, childbirth, or related
medical condition.” She insists that the plain language of the LPDA supports the conclusion that
an employer cannot discriminate against an employee for having an abortion by including the
language “related medical conditions.” She notes this language was incorporated into the LPDA
one year after the United States Court of Appeals for the Sixth Circuit had ruled that this language
included abortion. She submits that if the Louisiana legislature had intended a different result, it
could have explicitly said so. Ms. Ducharme argues that the court must look only to the language
of the statute itself and where the language is clear, as Ms. Ducharme insists it is here, the court
should not conduct a further investigation into the statute’s meaning. See La. Rev. Stat. § 1:4
(“When the wording of a Section is clear and free of ambiguity, the letter of it shall not be
disregarded under the pretext of pursuing its spirit.”). Finally, Ms. Ducharme adds that Ms. Salzer
admitted under oath that it is illegal to fire someone because they are going to have an abortion.2
The court finds that because the LPDA includes the exact same language as Title VII, it is
subject to the same interpretation. As analyzed above, an abortion is included in the language
“pregnancy, childbirth, or related medical condition.” CCDV is not entitled to judgment on the
pleadings on the LPDA claim for failure to plead a protected characteristic.
2. Summary Judgment Standard
Summary Judgment under Federal Rule of Civil Procedure 56 must be granted where
“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. Proc. 56. The movant has the initial burden of “showing the absence
of a genuine issue as to any material fact.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).
CCDV points out that Ms. Salzer is not a legal expert
The respondent must then “produce evidence or designate specific facts showing the existence of
a genuine issue for trial.” Engstrom v. First Nat. Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.
1995). Evidence that is “merely colorable” or “is not significantly probative” is not sufficient to
defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
“An issue is material if its resolution could affect the outcome of the action.” Daniels v.
City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001). Thus, “there is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Anderson, 477 U.S. at 249. Although this Court must “resolve factual controversies in
favor of the nonmoving party,” it must only do “where there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.” Antoine v. First Student, Inc., 713
F.3d 824, 830 (5th Cir. 2013) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th
Cir. 2005). The Court must not, “in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). Summary judgment is also proper if the party opposing the motion fails to establish an
essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
a. Statutory minimum number of employees.
In its motion for summary judgment,3 CCDV argues that Ms. Ducharme’s pregnancy
discrimination claim should be dismissed because she has no evidence to show that CCDV meets
the statutory minimum number of employees set forth in Title VII or the LEDL. As noted above,
Title VII applies to employers who have “fifteen or more employees for each working day in each
of twenty or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 2000e(b).
The LPDA applies to employers who employ “more than twenty-five employees within this state
As discussed in Section 1.a. above, the court assumes that Ms. Ducharme’s complaint has properly alleged the
requisite number of employees.
for each working day in each of twenty or more calendar weeks in the current or preceding calendar
year.” La. Rev. Stat. § 23:341(A).
CCDV submits that Ms. Ducharme cannot adduce any admissible evidence to show that it
employed 15 or 26 employees for each working day in 20 or more weeks in the current or preceding
calendar year. In opposition, Ms. Ducharme insists she does have such evidence. She points to her
own declaration that CCDV had more than 25 employees for each working day in each of 20 or
more calendar weeks. (Rec. Doc. 68-2). She asserts this is based on her observation. Id. She also
points to an employee schedule listing 26 employees for the week of August 28, 2017. (Rec. Doc.
68-3). In reply, CCDV argues that Ms. Ducharme’s declaration regarding the number of employees
is not based on her first-hand knowledge because she was not responsible for human resources or
payroll functions and did not review CCDV’s books or perform accounting work. It insists that
Ms. Ducharme has no knowledge of how many employees CCDV employed at any time, let alone
over the requisite number of weeks. CCDV also submits that the work schedule does not prove
that it had 26 employees because one of the listed individuals was an outside IT consultant, not an
employee. Further, CCDV argues that at best, the schedule shows who was employed during the
week of August 28, 2017, and does not show that CCDV employed the requisite number of
employees for 20 or more calendar weeks. For example, in Brooks v. Popeye's, Inc., a court of
appeals in Louisiana held that the plaintiff had failed to prove that the defendant employed more
than the required 25 employees for the Louisiana Employment Discrimination Law to apply where
plaintiff relied only on the defendant’s interrogatory response listing 176 employees who had been
employed over a nine-month period. 2011-1086 (La. App. 3 Cir. 3/14/12), 101 So. 3d 59, 63, on
reh'g (June 27, 2012), writ denied, 2012-1755 (La. 11/2/12), 99 So. 3d 676.
The court has already determined that as a matter of law, a single week’s schedule is
insufficient to show that CCDV had the requisite number of employees for twenty or more calendar
weeks. However, Ms. Ducharme has also submitted a declaration. The court rejects CCDV’s
argument that the declaration cannot be considered because it is based only on her observations
and she did not have any human resources or payroll duties. As an employee, it is entirely possible
that she would have observed the number of other employees by viewing the schedule or otherwise.
Ms. Ducharme declares that she observed more than 25 employees within Louisiana for each
working day in each of twenty or more calendar weeks. She cites the August 28, 2017 schedule as
an example. Although CCDV says this schedule does not show 26 employees because one of them
was an IT consultant, at best, this creates a fact issue that would preclude summary judgment in
her favor on the LPDA claims. CCDV essentially admits that this one schedule shows well over
the 15 employees required for Title VII to apply. The court finds that Ms. Ducharme has met her
burden to present evidence that CCDV has the requisite number of employees under Title VII and
the LPDA to survive summary judgment on this basis. The court further finds it conspicuous that
CCDV provides no contrary evidence or even an assertion that it does not meet the applicable
15/25 employee threshold, maintaining only that it does not have the burden to do so. The court
will therefore address the merits of this claim.
b. Basis for termination from employment.
CCDV argues that Ducharme’s pregnancy discrimination claims should be dismissed
because she has no evidence that CCDV terminated her because of her pregnancy. “In employment
discrimination cases, a plaintiff may present his case by direct or circumstantial evidence, or both.”
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002). “Direct evidence is evidence
that, if believed, proves the fact of discriminatory animus without inference or presumption.” Id.
at 897. “If the plaintiff produces direct evidence that discriminatory animus played a role in the
decision at issue, the burden of persuasion shifts to the defendant, who must prove that it would
have taken the same action regardless of discriminatory animus.” Id. at 896. If the plaintiff relies
on circumstantial evidence of discrimination, then the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), applies. Id. Under that framework, the plaintiff
must first establish a prima facie case of discrimination. Russell v. McKinney Hosp. Venture, 235
F.3d 219, 222 (5th Cir. 2000). In Title VII cases, the prima facie case will vary depending on the
circumstances. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n. 6 (1981). For
example, the Fifth Circuit has held that “[i]n work-rule violation cases, a Title VII plaintiff may
establish a prima facie case by showing ‘either that he did not violate the rule or that, if he did,
[non-protected class member] employees who engaged in similar acts were not punished
similarly”. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). If the plaintiff
establishes a prima facie case of discrimination, “the employer must respond with a legitimate,
nondiscriminatory reason for its decision.” Russell, 235 F.4d at 222. “This burden on the employer
is only one of production, not persuasion, involving no credibility assessments.” Id. “If the
defendant meets its burden, the presumption of discrimination created by the prima facie case
disappears, and the plaintiff is left with the ultimate burden of proving discrimination.” Sandstad,
309 F.3d at 897. “The plaintiff, who always has the ultimate burden, must then ‘produce substantial
evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for
discrimination.’” Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016) (quoting
Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015)).
Prima facie case of discrimination
CCDV submits that Ms. Ducharme has failed to establish a prima facie case of
discrimination because abortion is not a protected class or protected characteristic. 4 Even if
abortion is a protected class, CCDV insists Ms. Ducharme cannot make a prima facie case of
discrimination because she cannot establish that she was replaced by an individual who was not a
member of the protected class.5
Ms. Ducharme responds that she can establish a prima facie case of discrimination. She
submits that showing replacement is only one way of establishing a prima facie case and points
out that “[i]n work-rule violation cases, a Title VII plaintiff may establish a prima facie case by
showing ‘either that he did not violate the rule or that, if he did, [non-protected class member]
employees who engaged in similar acts were not punished similarly”. Mayberry, 55 F.3d at 1090.
She insists this test is met here. She cites her own declaration that “other employees who did not
have abortions would drink on the job but did not get fired.” Ducharme Decl., Rec. Doc. 68-2, at
1, ¶4). She also cites her own deposition testimony that other employees were doing heroin in the
employee bathroom during working hours and that she reported this to Ms. Salzer. Ducharme
Depo., Rec. Doc. 68-6, at 4. She also testified that she observed other employees smoking
marijuana on the property, but she did not report this conduct. Id. at 5. She further testified that
other employees drank alcohol on the job, including the cooks and an individual named Derrick.
Id. at 5-6. She testified that Ms. Salzer knew about Derrick drinking on the job because she and
Ms. Salzer would talk about it when he was intoxicated at work. Id. at 6. She testified that Derrick
As discussed above, that is not a basis for dismissal because Title VII and LPDA include protection for abortion.
For this purported defect, defendants cite Bauer v. Albemarle Corp., where the Fifth Circuit held that “[t]o establish
this prima facie case under Title VII, the plaintiff must prove that she is a member of a protected class, she was
qualified for the position that she held, she was discharged, and after her discharge was replaced with a person who is
not a member of the protected class.” 169 F.3d 962, 966 (5th Cir. 1999). As discussed above, however, the facts
sufficient to establish a prima facie case will vary.
was fired while he was on vacation. Id. Ms. Ducharme further cites the declaration of Kelsey
O’Morrow, a former CCDV employee, who observed “other employees in the front of the house
who were obviously on substances.” O’Morrow Decl., Rec. Doc. 68-5, at 1, ¶6).
Ms. Ducharme also argues that CCDV’s own records show that Ms. Ducharme was not
punished similarly to other employees. Ms. Salzer testified that she gave Ms. Ducharme “one
verbal warning”6 about drinking on the job before firing her, Salzer Depo., Rec. Doc. 68-4, at 9,
while other employees were given many warnings before being terminated. See Sealed Ex. D to
Ducharme’s Opposition, Rec. Doc. 68-7 (separation notice pertaining to an employee who
“[c]ontinued drinking alcohol on the job after many warnings”).
The court finds that Ms. Ducharme has failed to establish a prima facie case of
discrimination. She argues that non-protected class members who engaged in similar conduct were
not punished similarly. Her primary evidence to support this conclusion is her own declaration,
which generically states that other employees who did not have abortions were not fired for
drinking on the job, without listing any specific examples of employees who did so. Even if she
had listed employees, she does not declare that CCDV was on notice of these employees drinking
on the job so she cannot show that such employees were similarly situated. Further, without
specific examples,7 CCDV cannot address whether it had notice of alcohol consumption during
work hours by such employees and what discipline, if any, may have resulted. Ms. Ducharme’s
testimony that employees used heroin or marijuana during work hours is similarly insufficient
because there is no evidence that CCDV had knowledge of these employee’s activities.
Unmentioned in her memorandum in opposition to the motion for summary judgment, but
Ms. Ducharme refutes that, claiming she was never warned. Ducharme Decl., Rec. Doc. 68-2, at 1.
Given her assertions that “everybody” was drinking on the job, one would expect that she had known the names of
those who were doing so at the time she filed suit. She might also have discovered the names of other employees
during the course of discovery.
contained in the testimony she cites in support of her assertion that others drank on the job, is Ms.
Ducharme’s testimony she and Ms. Salzer would talk about an employee named Derrick when he
was intoxicated on the job. This is perhaps the only evidence that could possibly be construed as
showing disparate treatment, but this theory is undercut by Ms. Ducharme’s own testimony that
Derrick was fired. Moreover, the court takes note that Ms. Ducharme failed to reference Derrick
explicitly in her declaration or in her opposition memorandum, suggesting that she does not
consider him a comparator. Ms. Ducharme also cites to the separation notice of her boyfriend, Mr.
Rudd, who was fired for drinking on the job after “multiple warnings.” She says she suffered
disparate treatment because she was only given one warning, according to Ms. Salzer herself; Ms.
Ducharme denies being given any warnings. But Ms. Salzer explained in her testimony and
declaration that although she had previously heard rumors that Mr. Rudd had been drinking on the
job, she did not have evidence of his drinking on the job until she saw the video whereupon, just
like with Ms. Ducharme, she terminated him from employment. Ms. Ducharme does not dispute
this explanation. Ms. Ducharme says she also experienced disparate treatment because the only
other people besides Ms. Ducharme and her boyfriend who were fired for drinking had been
drinking so much that they were seriously impaired. In contrast, the video that allegedly caused
Ms. Salzer to decide to terminate Ms. Ducharme showed Ms. Ducharme taking just one sip of an
alcoholic drink. This is a distinction without a difference. Both drinking on the job and being
intoxicated on the job are terminable offenses. Ms. Ducharme does not contest that other
employees were terminated for being intoxicated on the job. Ms. Ducharme does not deny that Mr.
Rudd and employee M.B.D. were terminated for drinking on the job. Separation Notices, Rec.
Doc. 61-15. The court finds that the evidence, even viewed most favorably to Ms. Ducharme,
cannot support a finding that others who engaged in similar conduct were treated differently than
Moreover, even if the court found that Ms. Ducharme had established a prima facie case
of discrimination, as will be seen below, Ms. Ducharme’s discrimination claims cannot survive
Legitimate reason for termination
CCDV submits that if the court finds Ms. Ducharme has established a prima facie case of
discrimination, it can show a legitimate, non-discriminatory reason for termination. It says it fired
Ms. Ducharme because she drank on the job. It cites Ms. Ducharme’s separation notice, which
provides as the reason for termination that Ms. Ducharme was drinking on the job and was rude to
customers. It also cites Ms. Ducharme’s testimony that she drank on the job “sometimes” and
knew this was against the rules (although she stated that other employees drank on the job also).
It cites Ms. Salzer’s declaration that server Mr. Robarge told her that he had seen Ms. Ducharme
drinking on the clock and that she thereafter reviewed security camera footage and saw Ms.
Ducharme making an alcoholic drink and drinking it while still behind the bar. It cites the
declaration of Mr. Robarge that he saw Ms. Ducharme taking shots before the end of her shift and
that he told Ms. Salzer he had seen her drinking. CCDV has also submitted the security camera
video footage. It notes that the video also shows Ms. Ducharme giving away a drink for free. It is
undisputed that the CCDV handbook provides that use of alcohol while on shift and rude or
improper behavior with customers is grounds for discipline, including termination.
Ms. Ducharme does not dispute that CCDV has shown a legitimate, non-discriminatory
reason for terminating Ms. Ducharme. And this court agrees. It is undisputed that Ms. Ducharme
was drinking alcohol on the job: she admitted to doing so at least monthly and the security camera
footage shows her doing so. It is undisputed that this conduct violates the rules as stated in the
CCDV handbook. Ms. Ducharme admits she knew drinking alcohol on the job was against the
rules. As for the timing, it is undisputed that while Ms. Ducharme was off of work to have the
procedure, Mr. Robarge told Ms. Salzer that he had seen Ms. Ducharme drinking while she was
on the clock and that thereafter, Ms. Salzer reviewed the security camera footage and found an
example of Ms. Ducharme drinking alcohol while behind the bar. Defendants say this is why Ms.
Ducharme was fired. The court finds the defendants have established a legitimate, nondiscriminatory reason for Ms. Ducharme’s termination. Thus, the court turns to whether Ms.
Ducharme can show that this reason is mere pretext.
Pretext for discrimination
CCDV argues that Ms. Ducharme cannot survive summary judgment because she has no
evidence of pretext. It points out that Ms. Ducharme does not dispute that she was drinking on the
job in violation of CCDV’s rules. Thus, Ms. Ducharme cannot argue that the asserted justification
was false. CCDV points out that other employees were also terminated for drinking on the job.
CCDV has submitted separation notices for four employees who were terminated for being
intoxicated on the job and two employees who were terminated for drinking alcohol on the job
(including Mr. Rudd, discussed above). Separation Notices, Rec. Doc. 61-15.
CCDV characterizes Ms. Ducharme’s position as an attempt to argue that she was less
drunk than other employees who were fired. CCDV submits that this does not show pretext. CCDV
argues that the issue is whether Ms. Ducharme can show that Ms. Salzer or CCDV were motivated
by anti-abortion sentiment. It submits that there is no evidence that Ms. Salzer was motivated by
anti-abortion sentiment: she has testified that she has no strong opinion on abortion and does not
disapprove of it, and Ms. Ducharme admitted she has no reason to believe that Ms. Salzer is
religiously or politically minded.
In opposition, Ducharme argues that the drinking explanation is a pretext for unlawful sex
discrimination. She submits that she has seven categories of evidence to support the finding of
pretext. First, she cites temporal proximity. Ms. Salzer fired Ms. Ducharme on the day of her
abortion procedure. Ms. Ducharme also contends that less than a week later, Ms. Salzer fired
another female employee within a day of her abortion procedure.
Second, she argues that “[a] plaintiff may establish pretext ‘by showing that . . . [her
employer's] explanation is unworthy of credence.’” Wallace v. Methodist Hosp. Sys., 271 F.3d
212, 220 (5th Cir. 2001) (quoting Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581,
589 (5th Cir. 1998), reh'g en banc granted, opinion vacated sub nom. Williams v. Wal-Mart Stores,
Inc., 169 F.3d 215 (5th Cir. 1999), and opinion reinstated on reh'g sub nom. Williams v. Wal-Mart
Stores, Inc., 182 F.3d 333 (5th Cir. 1999)) (third alteration in original). She submits that Ms. Salzer
lied twice in about the video of Ms. Ducharme drinking. According to Ms. Ducharme, Ms. Salzer
testified that on September 7, 2017, she went back less than a week in the security footage to find
an example of Ducharme drinking. But she later conceded that she had to go back more than a
month to August 6, 2017, to find an example. Ms. Ducharme also says that Ms. Salzer testified
that the security camera footage was deleted after two weeks at one point, and after a month at
Third, Ms. Ducharme submits that pretext can be shown by disparate treatment. Wallace,
271 F.3d at 220. She says she suffered disparate treatment because other employees who were
caught drinking were given multiple warnings before being terminated, while she was only given
one warning according to Ms. Salzer herself. Ms. Ducharme says she also experienced disparate
treatment because the only other people besides Ms. Ducharme and her boyfriend who were fired
for drinking had been drinking so much that they were seriously impaired. In contrast, the video
that allegedly caused Ms. Salzer to decide to terminate Ms. Ducharme showed Ms. Ducharme
taking just one sip of an alcoholic drink.
Ms. Ducharme next argues that pretext can be shown when other employees, who are not
members of the protected class, were “treated differently under circumstances ‘nearly identical’”
to the plaintiff’s circumstances. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.
1995) (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). She submits that other
drinking and drug-using employees were not fired. She cites to her own declaration and the
declaration of Ms. O’Morrow.
Ms. Ducharme also contends that pretext is shown by Ms. Salzer’s reaction when she found
out that Ms. Ducharme was having an abortion. According to Ms. Ducharme’s testimony, Ms.
Salzer changed her mind about giving Ms. Ducharme a ride, changed her attitude, and started
treating Ms. Ducharme “crappily,” and “indifferently.” Finally, Ms. Ducharme contends that Ms.
O’Morrow will testify directly as to pretext. Ms. Ducharme points out that Ms. O’Morrow’s
declaration states that she “knew” that Ms. Ducharme was “not fired for drinking on the job.”
O’Morrow Decl., Rec. Doc. 68-5, at 2). Ms. Ducharme argues that this evidence is enough to
survive summary judgment.
In reply, CCDV responds to Ms. Ducharme’s purported examples of pretext, arguing that
they amount to no more than a subjective belief that CCDV acted wrongfully, or an assertion that
the termination could not have been a coincidence. CCDV points out that the Fifth Circuit has
held that “[a]lthough the temporal proximity between the employer learning of the plaintiff's
pregnancy and her termination may support a plaintiff's claim of pretext, such evidence—without
more—is insufficient.” Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 968 (5th Cir.
2016). It says that although Ms. Ducharme was terminated on the day she underwent an abortion,
this is not enough to show pretext. Further, it submits that the purported temporal proximity of Ms.
Salzer terminating another employee who underwent an abortion at the time of that employee’s
abortion cannot show pretext because Ms. Salzer had no knowledge of the employee’s pregnancy
at the time of her termination. Ms. Salzer testified that she did not know the other employee was
pregnant, the other employee testified that she had not told Ms. Salzer that she was pregnant and
admitted that her pregnancy was not showing, and Ms. Ducharme admitted that she had not told
Ms. Salzer that the other employee was pregnant.
CCDV submits that Ms. Salzer’s uncertainty about the date of the video showing Ms.
Ducharme drinking on the job does not show pretext. It insists that Ms. Ducharme has
mischaracterized Ms. Salzer’s testimony. Ms. Salzer testified as follows:
Q. You didn't go like weeks or a month back, did you?
A. I didn't have to.
Q. So it was within a couple of days in the past that you found this video?
MR. STIEGLER: Object to form.
BY MR. MOST:
Q. Okay. It wasn't weeks or a month, right?
A. I really don't remember.
Q. You just testified you didn't have to go back weeks or a month.
A. No. I just went back a chunk. It wasn't months. It could have been a week.
(Rec. Doc. 68-4, at 3). Ms. Salzer explained that by “chunk” she meant that she simply selected
the timeline bar at the bottom of the video and clicked on one. (Rec. Doc. 86-1, at 4). CCDV argues
that the date of the video is irrelevant and that all that matters is that the drinking occurred, was
captured on the surveillance footage, and—according to CCDV—resulted in Ms. Salzer firing Ms.
CCDV argues that Ms. Ducharme cannot show she was treated differently because she
received fewer warnings than the other employee terminated for drinking. CCDV explains that the
other employee (who was Ms. Ducharme’s boyfriend Marshall Rudd) was warned when Ms.
Salzer suspected him of drinking although she had not yet seen him do so. Once she saw proof of
his drinking on video, she terminated him.
Next CCDV submits that whether other fired employees were more impaired than Ms.
Ducharme when they were terminated does not show that she was treated differently. It points out
that Ms. Salzer never testified that Ms. Ducharme was terminated for having “one sip” of alcohol.
The “one sip” language was that of Ms. Ducharme’s counsel. Ms. Salzer’s testimony seems to be
that after she saw that “sip” she had seen enough. CCDV argues that although other terminated
employees were more impaired than Ms. Ducharme, any amount of alcohol consumed on the job
was a terminable offense. It insists that Ms. Ducharme cannot use this litigation to second guess
employment decisions. Kimble v. Georgia Pac. Corp., 245 F. Supp. 2d 862, 874–75 (M.D. La.
2002) (“Employment discrimination laws were not intended to be vehicles for judicial second
guessing of employment decisions, nor were they intended to transform the courts into personnel
CCDV next addresses Ms. Ducharme’s contention that other employees were drinking and
using drugs but were not fired. It submits that Ms. Ducharme has failed to identify any other
employees, when they were drinking on the job, or whether Ms. Salzer knew about it. It points
out that one of the alleged heroin users was in fact fired for being “not in condition to work”
months before Ms. Ducharme’s termination. CCDV submits that the other employees referred to
by Ms. Ducharme and her witness Ms. O’Morrow were not under the same circumstances as Ms.
Ducharme. The other employees are alleged to have been using heroin in the bathrooms or smoking
marijuana outside of the premises, while Ms. Ducharme was drinking alcohol in the bar, in plain
view of customers, other employees, and video surveillance cameras.
CCDV argues that Ms. Ducharme’s assertion that Ms. Salzer began treating her “crappily”
is not supported by any specific examples.
CCDV submits that the declaration of Ms. O’Morrow that she does not believe Ms.
Ducharme was fired for drinking on the job cannot prevent summary judgment. It points out that
Ms. O’Morrow does not explain why she believes this or what evidence she has to support it. It
argues that Ms. O’Morrow’s statement amounts to her subjective belief. It insists that it cannot be
considered direct evidence of pretext.
CCDV concludes by arguing that there is no evidence in this case that Ms. Salzer ever
made any statements about her opinions on abortion or any religious or political opinions on the
issue. CCDV argues that there is no evidence here of any discriminatory motive and urges that its
motion for summary judgment be granted.
Viewing all the evidence in the light most favorable to Ms. Ducharme, the court finds that
she cannot show that CCDV’s stated reason for terminating her was a pretext and that the real
reason was an anti-abortion animus. Almost all of Ms. Ducharme’s evidence of pretext falls away
for the reasons cited by CCDV. The other employee purportedly terminated due to an abortion
actually does not support Ms. Ducharme’s claim because it is undisputed that Ms. Salzer did not
know the employee was pregnant or having an abortion. When viewed in its entirety, Ms. Salzer’s
uncertainty regarding how far back on the surveillance tape she had to look to find evidence of
Ms. Ducharme drinking does not raise any questions as to the veracity of her testimony or
explanation. It is obvious that any discrepancies in her testimony result from counsel’s questioning
and not from affirmative misstatements. The “more impaired” disparate treatment argument fails
because the fact that others engaged in more egregious behavior and were fired does not negate
that Ms. Ducharme’s behavior violated CCDV’s rules. As discussed above, most of Ms.
Ducharme’s “examples” of other employees drinking and using drugs fail to offer a similar
comparison because most of the examples are non-specific and without any indication that Ms.
Salzer had evidence of the illicit activity. Unlike drinking alcohol in view of a security camera,
employees doing heroin in the bathroom could not be viewed doing so on security footage. In
contrast, while insisting in her Declaration that other employees who had not had abortions drank
on the job, used marijuana and heroin at CCDV, but did not get fired, plaintiff did not name a
single such employee. Ducharme Decl., Rec. Doc. 68-2. As such, Ms. Ducharme’s allegations
that other employees who did not have abortions were allowed to drink or abuse drugs on the job
and not get terminated fails because she has no proof that this happened, no proof that management
knew about it but did not react, and no proof that the reason for ignoring it, to the extent drinking
or being impaired on the job was ever ignored or not reacted to, was their status as not having had
abortions.8 At best, Ms. Ducharme has the example of Derrick, an example she does not even
mention or cite in the section of her opposition memorandum attempting to establish pretext.
Although Ms. Ducharme testified that she and Ms. Salzer discussed Derrick when he was
intoxicated at work, Ms. Ducharme also testified that Derrick was fired. Her failure to do more
with Derrick as a possible comparator than to include a page of transcript concerning Derrick
indicates that Ms. Ducharme does not consider him a comparator.
Perhaps most fatal to plaintiff’s pregnancy discrimination claim, however, is the complete
absence of any support for any alleged anti-abortion animus by Ms. Salzer. When analyzing
Nor does plaintiff make the case for Ms. Salzer knowing of Ms. Ducharme drinking on the job before this but turning
a blind eye to it. When asked if Ms. Salzer knew plaintiff was drinking on the job, she responded “probably” because
“there’s cameras everywhere.” She simply believed that Ms. Salzer watched the cameras 24/7. Ducharme Depo.,
Rec. Doc. 61-9, at 16.
whether inconsistencies have been shown in defendant’s proferred reasons for the adverse job
action, it should not be forgotten that it is incumbent upon plaintiff not just to show false reasons
were given for her termination to defeat defendant’s evidence regarding legitimate nondiscriminatory business reasons, but that defendant’s stated reasons were pretextual for
discrimination. See Outley, 840 F.3d at 216 (quoting Burton, 798 F.3d 233) (“The plaintiff, who
always has the ultimate burden, must then ‘produce substantial evidence indicating that the
proffered legitimate nondiscriminatory reason is a pretext for discrimination’”). She “must do
more than merely dispute [defendant’s] reasoning and methods.” Vess v. MTD Consumer Grp.,
Inc., 755 F. App'x 404, 409 (5th Cir. 2019). She must also show that the determination “was
reached in bad faith.” Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir. 2015).
Here, it is uncontroverted that Ms. Salzer had never said anything about abortion or religion
to Ms. Ducharme at any time during their 18-month relationship. And apparently, that relationship
was a very good one. According to plaintiff, she shared the fact of her pregnancy and her intention
to abort with Ms. Salzer because “We were close, and I told her everything, because I loved her….
I thought she loved me, too.”
Ducharme Depo., Rec. Doc. 61-9, at 22. Ms. Ducharme does not
dispute that when she informed Ms. Salzer that she was planning on undergoing an abortion, Ms.
Salzer did not attempt to talk her out of it, and did not say that she disapproved of the decision. Pl.
Statement of Materials Facts, Rec. Doc. 68-1, at 6. There is no evidence that prior to that, Ms.
Salzer had ever said anything to suggest to Ms. Ducharme that she would disapprove of the
Ms. Salzer had never said anything political about abortion. Ducharme Depo., Rec.
Doc. 61-9, at 23.Ms. Ducharme did not think of Ms. Salzer as religious. Id. In her declaration,
Ms. Salzer confirmed her neutral position on the issue:
I do not have a strong opinion about abortion, and I do not consider myself “prolife.” I have no opinion on whether anyone should, or should not, have an abortion.
I believe that abortion is personal business and it is not something I would expect
to discuss with CCDV employees. I was not upset at Nicole for having an abortion.
Her decision to have an abortion did not enter into my mind when I decided to fire
Decl. of Salzer, Rec. Doc. 61-3, at 4, ¶28-30. This is consistent with the statements she made on
the topic of abortion in her deposition. Depo. of Salzer, Rec. Doc. 61-7, at 9-11.
In her statement of material facts, Ms. Ducharme contests defendants’ assertion that Ms.
Salzer does not disapprove of abortion by citing three purported facts: 1) Ms. Salzer fired two
people, within a week of each other, on the day of their abortion procedure. 2) Ms. Salzer’s entire
affect changed upon learning Ms. Ducharme was to have an abortion. 3) Ms. Salzer told Ms.
Ducharme on the day of the abortion that she was fired. Pl.’s Statement of Material Facts, Rec.
Doc. 68-1, at 5-6. The court addresses each in turn:
1. Ms. Salzer fired two people, within a week of each other, on the day of their abortion
As discussed above, the allegation that there was a second employee similarly situated is
erroneous because it is undisputed that Ms. Salzer did not know that this second person was
pregnant at the time of her termination. The other person is Ms. Ducharme, plaintiff in this case.
However, while such temporal proximity might be evidence supporting a claim of pretext, it is
insufficient on its own to establish pretext. Fairchild, 815 F.3d at 968. In Fairchild, the Fifth Circuit
held that, just like in other Title VII cases, “suspicious timing may be evidence of pretext,” but
“‘[t]iming standing alone is not sufficient absent other evidence.’” Id. (quoting Boyd v. State Farm
Ins. Companies, 158 F.3d 326, 330 (5th Cir. 1998) (alteration in original)). Thus, “once the
employer offers a legitimate, nondiscriminatory reason that explains both the adverse action and
the timing, the plaintiff must offer some evidence from which the jury may infer that [pregnancy
discrimination] was the real motive.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th
Cir. 1997). In Fairchild, the Fifth Circuit reasoned that allowing “a plaintiff to prove pretext based
solely on temporal proximity ‘would unnecessarily tie the hands of employers’ after . . . the
protected status is disclosed.” 815 F.3d at 968 (quoting Strong v. Univ. Healthcare Sys., L.L.C.,
482 F.3d 802, 808 (5th Cir. 2007)). Thus, the Fifth Circuit in Fairchild held the employer was
entitled to judgment as a matter of law because the employer had established a legitimate, nondiscriminatory reason for termination and the only circumstantial evidence of pretext was temporal
proximity. Id. Similarly here, while the fact that Ms. Ducharme was told she was being terminated
from employment on the same day she underwent an abortion could support a finding of pretext,
that fact alone cannot show that Ms. Salzer or CCDV were motivated by abortion discrimination.
2. Ms. Salzer’s entire affect changed upon learning Ms. Ducharme was to have an abortion.
As support for this, Ms. Ducharme claims Ms. Salzer changed her mind about giving Ms.
Ducharme a ride; changed her attitude, by starting to treat Ms. Ducharme crappily and
indifferently, avoiding Ms. Ducharme, and talking to her not very nicely. Pl.’s Statement of
Material Facts, Rec. Doc. 68-1, at 5-6.
First, Ms. Ducharme cites her own testimony that Ms. Salzer changed her mind about
giving Ms. Ducharme a ride to the procedure. Ducharme Depo., Rec. Doc. 61-9, at 77. But, Ms.
Salzer explains she was unable to drive Ms. Ducharme to the procedure itself because Ms.
Ducharme wanted a ride during Ms. Salzer’s work hours, and Ms. Salzer only gives employees
rides on her own way home from work. Ms. Ducharme does not refute that Ms. Salzer was working
at the time. Furthermore, it appears from Ms. Salzer’s Declaration that she drove Ms. Ducharme
to her initial consultation for the procedure.
Nicole asked me for a ride to the abortion clinic for her initial appointment. It was
at the end of the day, and I agreed to give her a ride. When I leave for the day, I
sometimes give employees rides home, if they ask, when it is not far out of my way.
I do not give rides to everyone who asks. Nicole later asked me for a ride to the
clinic for the actual procedure. I could not give her a ride because it was during my
regular work hours. My decision not to give her a ride on this second trip had
nothing to do with abortion.
Salzer Decl., Rec. Doc. 61-3, at 4, ¶25-27 (emphasis added). Particularly if Ms. Salzer had driven
Ms. Ducharme to the abortion clinic for the initial appointment, it is hard to imagine why she
would renege on the second appointment, for the procedure itself, because she now had some antiabortion animus. The court also notes it is uncontested that when Ms. Ducharme presented her
issue and asked for time off to have the abortion, Ms. Salzer adjusted the schedule to give her the
time off to have the procedure. Id. at ¶19. Ms. Salzer did not attempt to talk her out of the decision
or say that she disapproved of it. Pl. Statement of Materials Facts, Rec. Doc. 68-1, at 6.
Next, Ms. Ducharme cites her own deposition testimony that Ms. Salzer began treating her
“crappily” and “indifferently” and started avoiding Ms. Ducharme. Ducharme Depo., Rec. Doc.
61-9, at 77. Ms. Ducharme’s testimony that Ms. Salzer began treating her “crappily” is not
supported by any examples of a change in how she was treated, other than changing her mind
about giving Ms. Ducharme a ride, already discussed above.
3. Ms. Salzer told Ms. Ducharme on the day of the abortion that Ms. Ducharme was fired.
This is the same temporal proximity claim made in Ms. Ducharme’s point 1.
The three purported facts cited by Ms. Ducharme are insufficient to create a disputed fact.
There is no evidence to show that Ms. Salzer disapproves of abortion. To the contrary, the only
evidence on this issue is Ms. Salzer’s statement that she has no opinion on abortion.
Finally, the court addresses Ms. O’Morrow’s declaration, which Ms. Ducharme also cites
in support of her pretext argument. Ms. O’Morrow’s declaration that she “knew” Ms. Ducharme
was not fired for drinking on the job is not competent evidence. Ms. O’Morrow was another
employee that does not appear to have any human resources or other managerial authority, and she
does not indicate in her declaration what basis she has for her belief other than her own suspicions.
Thus, there is no proof to support any of plaintiff’s claims that Ms. Salzer had an antiabortion animus. Even viewed in the light most favorable to Ms. Ducharme, she has not offered
sufficient evidence to create a genuine issue of fact that CCDV’s proffered reason for terminating
her was a pretext for pregnancy discrimination. She supports her claim that Ms. Salzer was
motivated by an anti-abortion animus with nothing more than a subjective belief. A plaintiff's
subjective beliefs are not sufficient to create an issue of fact. See Armendariz v. Pinkerton Tobacco
Co., 58 F.3d 144,153 (5th Cir. 1995).
In the end, plaintiff has nothing but temporal proximity,
and as a matter of law, while temporal proximity between the employer learning of the plaintiff's
pregnancy and her termination may support a plaintiff's claim of pretext, such evidence—without
more—is insufficient. Fairchild, 815 F.3d at 968. Accordingly, CCDV is entitled to summary
judgment on Ms. Ducharme’s pregnancy discrimination claims under Title VII and the LPDA9 for
both failing to state a prima facie case and failing to show CCDV’s legitimate, nondiscriminatory
business reasons were a pretext for pregnancy/abortion discrimination.
For the foregoing reasons, CCDV’s Motion for Judgment on the Pleadings (Rec. Doc. 62)
is DENIED in part and DENIED as moot in part; and defendants’ Motion for Summary Judgment
The same McDonnell Douglas framework applies to claims under the LPDA, “and a plaintiff who fails to meet his
or her burden under Title VII—or who succeeds in doing so—will simultaneously fail to satisfy—or concurrently
demonstrate—the prerequisites set forth in Louisiana law.” Martin v. Winn-Dixie Louisiana, Inc., 132 F. Supp. 3d
794, 811 (M.D. La. 2015).
(Rec. Doc. 61) is GRANTED as to Ms. Ducharme’s discrimination claims under Title VII and the
LPDA and remains under submission as to Ms. Ducharme’s FLSA claims.
New Orleans, Louisiana, this 13th day of May, 2019.
Janis van Meerveld
United States Magistrate Judge
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