Dantin v. Ochsner Clinic Foundation

Filing 59

ORDER AND REASONS: IT IS HEREBY ORDERED that Defendant Ochsner Clinic Foundation's 29 Motion for Summary Judgment is DENIED as set forth in document. Signed by Chief Judge Nannette Jolivette Brown on 5/13/2019. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ADELE B. DANTIN

CIVIL ACTION

VERSUS

CASE NO. 18-5575

OCHSNER CLINIC FOUNDATION

SECTION: “G”(3)

ORDER AND REASONS
Before the Court is Defendant Ochsner Clinic Foundation’s (“Defendant”) “Motion for
Summary Judgment.”1 In this litigation, Plaintiff Adele Dantin (“Plaintiff”) alleges that Defendant
engaged in employment discrimination and retaliation when Defendant unlawfully terminated
Plaintiff based on her age.2 Defendant filed the instant motion for summary judgment, arguing that
Plaintiff was terminated based on job performance and not her age.3 In opposition, Plaintiff asserts
that issues of material fact remain on whether the termination was based on age or job
performance.4 Having considered the motion, the memoranda in support and opposition, the
record, and the applicable law, the Court will deny the motion.
I. Background
A.

Factual Background
In the Petition, Plaintiff asserts that Defendant engaged in unlawful age discrimination and

retaliation when it terminated her employment.5 Plaintiff alleges that she worked for Defendant as

1

Rec. Doc. 29.

2

Rec. Doc. 1-1.

3

Rec. Doc. 29.

4

Rec. Doc. 36.

5

Rec. Doc. 1-1.

1

the Director of the Emergency Room and Critical Care Unit at the Ochsner St. Anne General
facility.6 Plaintiff states that throughout her career, she “received only positive performance
evaluations and consistently qualified for all available annual bonuses.”7 Despite this performance,
however, Plaintiff alleges that in June 2015, Defendant criticized Plaintiff’s performance and
placed Plaintiff on a performance improvement plan (“PIP”).8 Plaintiff asserts that prior to being
placed on this PIP, Plaintiff’s supervisor had made several statements during staff meetings that
seemed to target Plaintiff and another 63-year-old employee.9 Plaintiff contends that she met with
the hospital CEO and a human resource director to challenge being placed on the PIP, but the CEO
was “rude and dismissive” and continued to enforce the PIP.10
Plaintiff asserts that under the PIP, she performed her duties at the highest level, but in
February 2016, Defendant placed Plaintiff on a second PIP.11 Plaintiff alleges that she asked for
suggestions on how she could improve under the second PIP, but her supervisor was
unresponsive.12 Plaintiff then states that when she asked to be placed on medical leave in March
2016, Defendant used the time as an opportunity to exclude Plaintiff from meetings, limit her
access to employee accounts, and produce at least two paychecks that were incorrect. 13 Plaintiff
asserts that she was terminated on July 15, 2016 while on medical leave, and she was replaced by
a nurse “believed to be in her mid-twenties or early thirties.”14 Plaintiff contends that Defendant’s

6

Id. at 2.

7

Id. at 3.

8

Id.

9

Id. at 3–4.

10

Id. at 4.

11

Id. at 5.

12

Id.

13

Id. at 6.

14

Id. at 6–7.

2

actions constitute unlawful employment discrimination and retaliation in violation of the federal
Age Discrimination in Employment Act (“ADEA”) and the corresponding Louisiana statute.15
B.

Procedural Background
On March 9, 2018, Plaintiff filed a Petition for Damages in the 17th Judicial District for

the Parish of Lafourche, State of Louisiana against Defendant, asserting state and federal claims
of age discrimination.16 On June 1, 2018, Defendant removed the action to this Court.17
On July 5, 2018, Defendant filed a motion to dismiss Plaintiff’s state law claims as
prescribed.18 On July 26, 2018, Plaintiff filed a motion to voluntarily dismiss her state law claims.19
On August 16, 2018, the Court granted Plaintiff’s motion to dismiss the state law claims.20
On March 26, 2019, Defendant filed the instant motion for summary judgment on
Plaintiff’s remaining federal claims.21 On April 16, 2019, Plaintiff filed an opposition.22 With leave
of Court, Defendant filed a reply on April 23, 2019.23 Also with leave of Court, Plaintiff filed a
sur-reply on April 25, 2019.24 On May 1, 2019, with leave of Court, Defendant filed another surreply.25

15

Id, at 7–8.

16

Rec. Doc. 1-1.

17

Rec. Doc. 1.

18

Rec. Doc. 15.

19

Rec. Doc. 19.

20

Rec. Doc. 21.

21

Rec. Doc. 29.

22

Rec. Doc. 36.

23

Rec. Doc. 40.

24

Rec. Doc. 46.

25

Rec. Doc. 49.

3

II. Parties’ Arguments
A.

Defendant’s Arguments in Support of the Motion
In the motion, Defendant urges the Court to grant summary judgment because Plaintiff

cannot establish a prima facie case of age discrimination or retaliation.26 Further, Defendant
argues, Plaintiff cannot prove that Defendant’s proffered reason for Plaintiff’s termination—
Plaintiff’s poor job performance—was a pretext for either age discrimination or retaliation.27
1.

Age Discrimination Claim

Defendant argues that because Plaintiff lacks direct evidence of age discrimination, she
must present a prima facie case under the McDonnell-Douglas burden-shifting framework.28
Defendant contends that Plaintiff cannot establish a prima facie case because she cannot prove the
fourth element of the McDonnell-Douglas framework: that Plaintiff was treated less favorably than
similarly-situated employees who were younger.29 Defendant presents Plaintiff’s deposition
answer to the question of whether younger people in similar positions were treated better than
her.30 Defendant alleges that in reply, Plaintiff stated, “I can’t answer that.” and “I don’t know how
they were treated.”31 Defendant contends that because Plaintiff does not know how younger
employees were treated, Plaintiff has “no evidence that Unit Directors younger than [Plaintiff] or
outside of her protected class engaged in the same type of conduct which she was terminated for

26

Rec. Doc. 29-2 at 20–24.

27

Id. at 21–23.

28

Id. at 19.

29

Id.

30

Id.

31

Id.

4

but were not terminated.”32 Therefore, Defendant avers that Plaintiff cannot establish a prima facie
case of age discrimination and her claim should be dismissed.33
If the Court finds that Plaintiff has presented a prima facie case of age discrimination,
Defendant then argues that Plaintiff cannot establish that Defendant’s proffered reason for
termination was a pretext.34 Defendant insists that it has offered sufficient evidence to show that
poor work performance was a legitimate reason for terminating Plaintiff’s employment.35
Defendant details Plaintiff’s work history since Defendant’s acquisition of the hospital in 2005.36
Defendant points to several performance evaluations by Plaintiff’s first supervisor, Marsha Arabie,
to support the assertion that Plaintiff was “resistant toward change” and “there were consistent
performance issues with the nurses” in Plaintiff’s unit.37
Defendant alleges that Allyson Vedros, Plaintiff’s second supervisor, issued a PIP for
Plaintiff on June 11, 2015.38 Defendant states that the PIP was based on Plaintiff’s failure to utilize
a “nonnegotiable document,” poor communication to subordinates, understaffed shifts, lack of
proper documentation by Plaintiff’s staff, missing medication under Plaintiff’s watch, and failure
to modify overtime schedules as directed by management.39 Defendant alleges that when Vedros
placed Plaintiff on the PIP, Plaintiff did not complain of age discrimination to Vedros.40 Defendant

32

Id. at 21.

33

Id.

34

Id. at 21–22.

35

Id. at 22.

36

Id. at 2–18.

37

Id. at 3.

38

Id. at 6–7.

39

Id. at 5–8.

40

Id. at 8.

5

states that Plaintiff submitted a written rebuttal in which Plaintiff alleged that Vedros had made
comments during weekly meetings that seemed to target Plaintiff and another 63-year-old
employee named Adams.41 Defendant asserts, however, that in describing Vedros’ comments at
these meetings, “Plaintiff did not remember any specific examples when Ms. Vedros made a
reference to her age. Plaintiff testified that ‘[i]t was in general—that she spoke of us.’”42 Defendant
maintains that Plaintiff’s statements in her rebuttal are the first time Plaintiff ever mentioned age
discrimination to anyone at the facility.43
Defendant insists that when Plaintiff met with Bayou Region CEO Tim Allen and human
resources specialist Sherri McKenna about the PIP, Plaintiff did not mention age discrimination
and neither executive made comments related to Plaintiff’s age.44 Defendant alleges that despite
regular meetings regarding her progress on the PIP, Plaintiff’s performance continued to
struggle.45 Defendant asserts that Plaintiff’s third supervisor, Jane Semere, continued to note
Plaintiff’s failure to ensure that her department properly completed documentation, adequately
updated patient families, and accurately logged employee hours.46 Defendant contends that an
outside contractor, the Studer Group, noted many of the deficiencies with Plaintiff’s performance
in several evaluations.47 Defendant avers that based on the Studer Group’s evaluations, Semere
placed Plaintiff on a second PIP, with a warning that failure to improve could result in “‘further

41

Id. at 8–9.

42

Id. at 9.

43

Id. at 9–10.

44

Id. at 10.

45

Id. at 10–11.

46

Id. at 11–12.

47

Id. at 12–13.

6

disciplinary action up to and including termination.’”48 Defendant alleges that when Plaintiff
continued to lack improvement under the second PIP, Semere recommended that Plaintiff apply
for other positions within the Ochsner system.49
Defendant alleges that Plaintiff requested medical leave in March 2016, and while on leave,
Plaintiff was given the option to apply for other positions, but Plaintiff chose not to.50 Defendant
states that it then terminated Plaintiff’s employment for the “myriad of issues outlined above.”51
Defendant alleges that Plaintiff continued to insist that she was terminated because of age, but
Plaintiff admitted that Semere was in her same age range and had never made any age-related
comments about Plaintiff.52 Defendant also contends that Plaintiff attempted to support her
discrimination allegations with the names of other employees who were allegedly forced to retire
because of their age.53 Defendant argues, however, that these were solely speculations by Plaintiff
because she did not know the employees’ work histories, had not spoken to them about their
termination, and was not involved in their termination.54 Defendant insists that Plaintiff’s
“conclusory allegations, without more, are insufficient to show pretext,”55 and for these reasons,
her age discrimination claim fails.56

48

Id. at 14 (quoting Rec. Doc. 29-3).

49

Id. at 16.

50

Id.

51

Id. at 17.

52

Id.

53

Id.

54

Id.

55

Id. at 22.

56

Id.

7

2.

Retaliation Claim

Defendant asserts that Plaintiff cannot present a prima facie case of retaliation because she
cannot prove a causal link between her age discrimination complaint and her termination.57
Defendant states that the PIP issued by Semere was supported by ample evidence of Plaintiff’s
poor performance, mostly generated by an independent consulting firm.58 Additionally, Defendant
highlights, Plaintiff admitted in her deposition that she never spoke with either Allen, the hospital’s
CEO, or Semere about her age discrimination claim.59 Defendant contends that Semere was not
Plaintiff’s supervisor at the time Plaintiff made her discrimination accusations, and Semere never
became aware of these allegations.60 Defendant further avers that during Plaintiff’s deposition,
Plaintiff admitted that it was merely her assumption that Semere was retaliating against her. 61
Defendant argues that if neither Allen nor Semere had knowledge of Plaintiff’s age discrimination
claim, neither could retaliate against Plaintiff.62
Accordingly, Defendant maintains, Plaintiff cannot prove the necessary elements of a
retaliation claim, but if the Court somehow finds that Plaintiff establishes a prima facie case,
Plaintiff cannot prove pretext for the reasons outlined supra.63 Because Defendant believes that
Plaintiff cannot prove an age discrimination or retaliation claim, Defendant urges the Court to
grant the motion for summary judgment.64

57

Id. at 23.

58

Id. at 24.

59

Id. at 18.

60

Id.

61

Id.

62

Id.

63

Id. at 24–25.

64

Id.

8

B.

Plaintiff’s Arguments in Opposition to the Motion
In opposition, Plaintiff argues that the Court should deny Defendant’s motion because she

presents direct evidence of age discrimination.65 Plaintiff also contends that she presents adequate
evidence to support a prima facie case for age discrimination and retaliation, and she provides
evidence of pretext on the part of Defendant.66
1.

Age Discrimination Claim

First, Plaintiff asserts that she presents direct evidence of age discrimination through the
declaration of her former supervisor, Allyson Vedros.67 Plaintiff alleges that in Vedros’
declaration, Vedros states that CEO Allen wanted Plaintiff to be placed on an PIP, and then, despite
Plaintiff’s success on the PIP, Allen gave Vedros explicit instructions to terminate Plaintiff and
other older employees.68 Plaintiff contends that Vedros told Allen that it was wrong to terminate
these employees, but Allen continued to force the task on Vedros because he wanted to target
“long-term employees.”69 Plaintiff insists that Vedros was terminated shortly after she refused to
terminate Plaintiff.70 According to Plaintiff, Vedros’ statements constitute direct evidence of age
discrimination.71

65

Rec. Doc. 36 at 1–2.

66

Id.

67

Id. at 14–15. Plaintiff notes that Allyson Vedros got married in 2015 and changed her surname to Vedros.
Plaintiff utilizes the last name Vedros throughout her opposition, but for consistency across the other
documents in the record, the Court will utilize the surname Vedros.
68

Id. at 15 (citing Rec. Doc. 36-4).

69

Id.

70

Id.

71

Id. at 14–15.

9

Next, Plaintiff contends that she presents a prima facie case of age discrimination because
she was over the age of forty, qualified for the position, unfairly terminated, and replaced by a
younger employee.72 Plaintiff alleges that she was replaced by Krystal Reisinger, “a nurse in her
late twenties, who was significantly less experienced and less qualified [than Plaintiff].”73 Plaintiff
states that Reisinger had no emergency room, critical care unit, or supervisory experience when
she assumed the position.74 Additionally, Plaintiff highlights several other individuals, such as
Annette Adams, Mary Katherine, and John Flannery who were forced to move to a different
position or terminated and replaced by younger employees.75 Plaintiff argues that collectively, this
evidence supports the assertion that older employees were treated disparately. 76
Finally, Plaintiff contends that she clearly shows that Defendant’s proffered reason for
terminating her employment is pretextual because all of Plaintiff’s evidence evinces that “Plaintiff
had done an excellent job fulfilling the duties of [her] position for the previous five years.”77
Plaintiff asserts that from 2005 to 2014, Defendant had no complaints regarding Plaintiff’s work
performance, and Plaintiff received bonuses and pay increases whenever available.78 Plaintiff also
alleges that her emergency department was the best performing department in the Ochsner
network, and Plaintiff was named Employee of the Quarter in 2014.79 Plaintiff insists that in 2015
and through the first quarter of 2016, the St. Anne’s Emergency Department was “consistently the

72

Id. at 16–17.

73

Id. at 12.

74

Id.

75

Id. at 17.

76

Id.

77

Id. at 18.

78

Id. at 2–3.

79

Id. at 3.

10

best performing” department in the Ochsner network.80 Plaintiff claims that during Allen’s
testimony, Allen stated that he utilized the dashboard data to assess the performance of the hospital,
so Allen was aware of Plaintiff’s high performance.81
Plaintiff states that despite the strong performance of herself and her department, she was
placed on the first PIP.82 Plaintiff alleges that in her rebuttal to the first PIP, she addressed each of
the itemized issues, explained how each of the tasks were already being completed, and detailed
how she had complied with all requests.83 Plaintiff contends that she met all of the requirements
of the PIP, and though Vedros acknowledged this improvement, Allen was determined to terminate
Plaintiff because he wanted to target older employees.84 Plaintiff avers that when she met with
Allen and a human resources specialist, McKenna, “Allen’s disdain was palpable and he made
[Plaintiff] feel extremely intimidated.”85 Plaintiff claims that despite indicating that she just wanted
to do her job, Allen continued to implement the PIP.86
Plaintiff then contests Defendant’s assertion that Semere placed Plaintiff on the second PIP
based on the Studer Group’s independent evaluations.87 Plaintiff highlights the discrepancy
between the dashboard data that shows excellent performance by Plaintiff’s department and the
“subjective amorphous criticism” of the Studer Group.88 Plaintiff asserts that the contrast between

80

Id. at 4.

81

Id.

82

Id.

83

Id. at 5.

84

Id. at 6.

85

Id.

86

Id.

87

Id. at 19.

88

Id. at 9.

11

her objective performance over the course of her 30-year career and the sudden, subjective
accusations by Studer and Semere reveal that allegations of poor work performance were
concocted as pretext for the discrimination.89 Plaintiff insists that the Studer Group’s records were
only used to mask Defendant’s ulterior motive to push Plaintiff out of her position.90
As further evidence of this ulterior motive, Plaintiff presents the deposition testimony of
Semere, wherein Semere “conceded that after issuance of the February 2016 PIP, aside from a few
perfunctory regular meetings, she made absolutely no effort to meet with [Plaintiff] to coach
her…or otherwise display any real concern for [Plaintiff]’s efforts to satisfy her employer’s stated
needs.”91 Plaintiff insists that if poor performance was really the issue, Semere would have
invested in her improvement and made some attempt to help her meet the PIP goals.92 Because
Semere did not show concern, Plaintiff argues, this evinces that poor performance was a pretext
for the discrimination and Semere’s only motive was to get rid of Plaintiff on unfair terms.93 Thus,
Plaintiff avers that she adequately proves that Defendant’s proffered reason for her termination
was pretextual.94
2.

Retaliation Claim

Plaintiff also asserts that she presents a prima facie case for retaliation.95 First, Plaintiff
alleges that she engaged in protected activity by asserting in her rebuttal that the first PIP was

89

Id. at 19.

90

Id.

91

Id.

92

Id.

93

Id. at 20.

94

Id.

95

Id. at 21.

12

issued based on age discrimination.96 Second, Plaintiff argues that Defendant’s “nit-picking
criticism of her work and issuance of a second PIP just a few months later” constitute adverse
employment actions.97 Third, Plaintiff contends that the causation element is established by: (1)
the proximity in time between her age discrimination allegations and the implementation of the
second PIP, and (2) the fact that the second PIP was not a genuine attempt to help Plaintiff
improve.98 Plaintiff alleges that the falsity of the second PIP is revealed by Semere’s “dismissive
and dispassionate testimony” regarding Plaintiff’s work performance.99 Therefore, Plaintiff
argues, Defendant only implemented the second PIP so close to the time of Plaintiff’s age
discrimination complaints because the second PIP was really retaliatory.100
Next, Plaintiff responds to Defendant’s assertion that Semere could not have retaliated
against Plaintiff because Semere was unaware of Plaintiff’s age discrimination allegations.101
Plaintiff insists that Allen received a copy of her rebuttal that contained the discrimination
allegations, and Allen, not Semere is the person who directed that Plaintiff be placed on the second
PIP and ultimately terminated. Therefore, Plaintiff contends, Defendant can be held liable for
retaliation because Allen knew that Plaintiff had engaged in protected activity and Allen used
Semere to retaliate against Plaintiff for this activity. 102 For these reasons, Plaintiff insists that she

96

Id.

97

Id.

98

Id.

99

Id.

100

Id.

101

Id. at 22.

102

Id.

13

established both a retaliation and an age discrimination claim, and the Court should deny the
motion for summary judgment.103
C.

Defendant’s Arguments in Further Support of the Motion
In reply, Defendant argues that Plaintiff does not present direct evidence of discrimination

and fails to establish both a prima facie case and pretext for either of her claims.104
1.

Age Discrimination Claim

First, Defendant asserts that Plaintiff does not present direct evidence of discrimination
because Plaintiff “misstates two salient facts.”105 One misstatement, according to Defendant, is
that Allen was not the ultimate decisionmaker in deciding to terminate Plaintiff.106 Defendant
alleges that in Semere’s declaration, Semere states that it was her decision to terminate Plaintiff,
and in Allen’s deposition, he clarified that he usually has “no role” in terminating staff.107
Defendant also contends that Plaintiff misconstrued Vedros’ declaration because no where in the
declaration does Vedros say that Allen told her to terminate employees over the age of forty.108
Defendant insists that Vedros only states that Allen told her to terminate “long-term” employees,
and “long-term” is a vague statement that does not equate with older employees.109 Therefore,
Defendant argues that Plaintiff does not provide any direct evidence of age discrimination.110

103

Id.

104

Rec. Doc. 40.

105

Id. at 1.

106

Id. at 2.

107

Id.

108

Id. at 2–3.

109

Id. at 2.

110

Id.

14

Defendant then contends that Plaintiff fails to present a prima facie case of age
discrimination because Plaintiff does not provide evidence that a similarly situated employee
outside of her protected class was treated more favorably.111 Defendant avers that as evidence for
this fourth element of the prima facie case, Plaintiff states that she was replaced by an individual
in her late twenties or early thirties, but Defendant asserts that Plaintiff misrepresents who actually
replaced her.112 Defendant states that after Plaintiff was terminated, an individual named Kelly
Dufrene, who was 58-years old at the time and only six years younger than Plaintiff, assumed
Plaintiff’s position.113 Defendant avers that Reisenger only filled the position after Dufrene
decided that she did not want to continue in the director role.114 Thus, Defendant argues, Plaintiff
was not initially replaced by someone significantly younger, as Plaintiff attempts to represent.115
Further, Defendant asserts that Plaintiff relies on the declaration of Vedros to establish the identity
and age of Plaintiff’s replacement, but Defendants argues that Vedros has no personal knowledge
of these facts because she had been terminated six months prior.116 Thus, Defendant argues,
Vedros’ declarations regarding Plaintiff’s replacement should not be considered.117
Defendant also alleges that as further evidence for the fourth element of a prima facie case,
Plaintiff presents “extremely vague allegations that other employees over the age of forty were
terminated or demoted.”118 Yet, Defendant asserts, Plaintiff provides “no details or record evidence

111

Id.

112

Id. at 4.

113

Id.

114

Id.

115

Id.

116

Id.

117

Id. at 4–5.

118

Id. at 3.

15

related to any of these employees,” and Plaintiff admits that she “‘lacked full details as to the
circumstances of each.’”119 Defendant insists that Plaintiff’s lack of evidence is insufficient to
establish a prima facie case.120
Next, Defendant contends that Plaintiff has not established pretext because she ignores the
fact that multiple supervisors, and not just Semere, noted deficiencies in Plaintiff’s performance.121
Defendant cites statements from Arabie and Vedros who noted Plaintiff’s resistance to change,
difficulty with employee engagement, and failure to follow certain requested processes.122 Further,
Defendant highlights, several of these criticisms were noted before Semere and Allen had arrived
at St. Anne Hospital.123 Defendant also points out that though Plaintiff labeled the Studer Group’s
evaluations as subjective and amorphous, Plaintiff “did not deny any of the critiques levied by the
Studer Group,” and Plaintiff has actually “admitted to agreeing with most of the recommendation
and observations made by the independent Studer coach.”124 Finally, Defendant asserts that though
Plaintiff relies on the dashboard data to support the argument that her department was performing
well, the dashboard data addresses the performance of the entire department but does not reference
Plaintiff’s specific performance.125
Defendant ends its arguments related to the age discrimination claim by asserting that
Plaintiff has misstated the record on multiple occasions, including when Plaintiff stated the
following: that Allen directed Vedros to terminate employees over forty, that Allen “ordered”

119

Id. (citing Rec. Doc. 36 at 27).

120

Id. at 4–5.

121

Id. at 5–8.

122

Id.

123

Id.

124

Id. at 7–8.

125

Id. at 8.

16

Vedros to terminate Plaintiff, and that Vedros disagreed with Allen’s directive to place Plaintiff
on the PIP.126 Defendant contends that none of these assertions are present in Vedros’ declaration
or anywhere in the record, and Plaintiff purposefully misstates the record.127
2.

Retaliation Claim

Regarding Plaintiff’s retaliation claim, Defendant argues that Plaintiff fails to prove that
there is any dispute regarding the fact that Semere was the only person that decided to terminate
Plaintiff, and Semere was unaware of Plaintiff’s age discrimination allegations.128 Defendant
contends that this represents a lack of causation, and because Plaintiff does not show any dispute
regarding the lack of causation, Plaintiff cannot present a prima facie case for retaliation.129 For
these reasons, Defendant argues that Plaintiff does not present a claim for either age discrimination
or retaliation, and the Court should grant the motion for summary judgment.130
D.

Plaintiff’s Arguments in Further Opposition to the Motion
In the sur-reply, Plaintiff asserts that she has established her claims for discrimination and

retaliation, but even if she falls short of completely proving her case, there are disputes of material
fact that warrant denial of the motion for summary judgment.131

126

Id. at 8–9.

127

Id. at 10.

128

Id. at 10.

129

Id.

130

Id.

131

Rec. Doc. 46 at 1–2.

17

1.

Age Discrimination Claim

First, Plaintiff asserts that Vedros’ testimony serves as sufficient direct evidence of
discrimination.132 Plaintiff notes that Defendant challenged the meaning of Vedros’ statements
regarding Allen’s desire to target older employees.133 To clarify Vedros’ testimony, Plaintiff
attaches a second declaration by Vedros to the sur-reply.134 Plaintiff alleges that in the second
declaration, Vedros states: (1) that she believes Allen terminated Vedros’ employment because he
was upset that Vedros refused to terminate Plaintiff and other employees over 40, and (2) after
Vedros’ termination, Vedros kept track of all terminated employees over age 40 who were initially
on Allen’s over 40 years of age termination list.135 Plaintiff insists that these declarations by Vedros
are direct evidence of age discrimination, and this warrants denial of the motion.136
Next, Plaintiff argues that she does present evidence in support of the fourth element of a
prima facie case because, despite Defendant’s attempt to distort the facts, Plaintiff was actually
replaced by a significantly younger employee.137 Plaintiff acknowledges that Kelly Dufrene
immediately replaced her in the director position, but Plaintiff insists that Dufrene was merely an
interim leader.138 Plaintiff contends that ultimately, Reisinger, who is in her late twenties or early
thirties, replaced Plaintiff as the permanent director of the unit.139

132

Id. at 3–4.

133

Id.

134

Rec. Doc. 46-1.

135

Rec. Doc. 46 at 3.

136

Id. at 3–4.

137

Id. at 7.

138

Id.

139

Id.

18

Then, Plaintiff asserts that she presents sufficient evidence of pretext because the
dashboard data and other evidence of her department’s performance clearly convey that poor
performance was not a genuine issue.140 Plaintiff contests Defendant’s assertion that supervisor
reviews and the Studer Group findings were the primary tools utilized to make decisions.141
Plaintiff insists that during Allen’s deposition, he specifically stated that he relied on dashboard
data to assess the status of hospital operations.142 Plaintiff contends that if Allen were relying on
dashboard data that showed high performance by her department, he had no possible reason to take
adverse action based on Plaintiff’s performance, and thus “poor performance” was a pretext for
discrimination.143
Plaintiff also disputes Defendant’s assertion that Arabie noted poor performance by
Plaintiff.144 Plaintiff alleges that she was in contact with Arabie and had typed up Arabie’s
declaration, but Arabie may have been unduly influenced into a “change of heart” that made her
not want to sign the declaration.145 Plaintiff attaches to the sur-reply a declaration from Plaintiff’s
counsel, G. Karl Bernard, wherein Bernard attests to his attempts to obtain Arabie’s declaration
and he attaches the proposed declaration.146 Plaintiff contends that she would subpoena Arabie to
testify at trial, and Arabie’s testimony would include statements that “as [Plaintiff]’s supervisor
for more than twenty years, she never saw reason to place Plaintiff on a Performance Improvement
Plan; she never recommended that [Plaintiff] be terminated or removed from her position; and

140

Id. at 5–7.

141

Id. at 5.

142

Id.

143

Id. at 5–6.

144

Id. at 6.

145

Id.

146

Rec. Doc. 46-2.

19

despite any criticisms that she may have stated in her reviews over the years, [Plaintiff] consistently
exceeded Ms. Arabie’s expectations of her position.”147
Next, Plaintiff contends that even if her evidence is not enough to fully establish pretext,
the evidence reveals a genuine dispute of fact on Plaintiff’s history of performance prior to her
termination.148 Also, Plaintiff asserts, Defendant’s arguments in the motion are heavily reliant on
attacks on Vedros’ credibility.149 According to Plaintiff, the continued issues of fact and credibility
determinations are matters that are both inappropriate for summary judgment and should be
decided by a trier of fact.150 Thus, Plaintiff argues, the Court should deny summary judgment.
2.

Retaliation Claim

Finally, Plaintiff notes that Defendant asserts that Allen was not involved in terminating
Plaintiff, but Plaintiff argues that based on Allen and Semere’s statements in their depositions,
Allen was either required to approve of Semere’s decision or Allen implicitly sanctioned the
decision because he was the final authority over all of Semere’s actions.151 Thus, proffers Plaintiff,
Allen was involved at some level in terminating Plaintiff, and this supports the assertion that he
acted against Plaintiff in retaliation.152 Therefore, Plaintiff contends that she presents a retaliation
claim and the Court should deny the motion for summary judgment.153

147

Id.

148

Id.

149

Id. at 2–3.

150

Id.

151

Id. at 4.

152

Id.

153

Id.

20

E.

Defendant’s Sur-Reply in Further Support of the Motion and Defendant’s Request to
Strike
1.

Arguments in Support of the Motion

In its sur-reply, Defendant first argues that “Plaintiff should not be allowed to submit a
subsequent declaration with new ‘evidence’ with her Surreply,” but if the Court decides to consider
the new evidence, Defendant should be allowed to address the associated arguments.154 Defendant
contends that even with Vedros’ updated declaration, Plaintiff still does not present evidence of
direct discrimination.155 Defendant alleges that in the declaration, Vedros does not assert that Allen
instructed or suggested that Vedros terminate Plaintiff and other employees because of their age.156
Defendant asserts that Vedros only states that Allen “‘wanted [her] to terminate [Plaintiff’s]
employment along with several employees over the age of forty.’”157 Defendant contends that this
statement requires a person to draw inferences or presumptions about Allen’s intentions, and
inferences cannot serve as direct evidence.158
Defendant then asserts that Plaintiff does not present a prima facie case of age
discrimination because, despite Plaintiff’s attempt to label Reisinger as her ultimate replacement,
the fact remains that Plaintiff was immediately replaced by Dufrene, who was only six years
younger than Plaintiff.159 Defendant also argues that Plaintiff fails to prove pretext because the
dashboard data that she continuously relies on does not refer to Plaintiff’s specific performance

154

Rec. Doc. 49 at 1–2.

155

Id.

156

Id. at 2.

157

Id. (quoting Rec. Doc. 46-1).

158

Id.

159

Id. at 5.

21

and the data does not nullify the fact that all of Plaintiff’s supervisors, including Arabie, noted
issues with Plaintiff’s performance.160
Finally, Defendant contends that Plaintiff fails to state a claim for retaliation because she
still cannot prove that Allen was the decisionmaker who terminated Plaintiff’s employment.161
Defendant argues that Plaintiff tries to equate Semere’s “simply checking in with a supervisor”
regarding termination as evidence that the supervisor was influential in the termination.162
Defendant insists that this is not accurate; Defendant avers that Semere was still the “ultimate
decision maker on the termination.”163 For these reasons, Defendant asserts that Plaintiff cannot
present an age discrimination or retaliation claim, and the Court should grant the motion for
summary judgment.164
Objections to Plaintiff’s Exhibits

2.

Also in its sur-reply, Defendant submits objections to several statements in the two
declarations that Plaintiff attaches to her sur-reply.165 Defendant requests that the Court strike
paragraphs 31–36 of Exhibit 1, Vedros’ second declaration and the entirety of Exhibit 2, Plaintiff’s
counsel’s entire declaration.166 Regarding Vedros’ declaration, Defendant avers that in paragraphs
31–33, Vedros describes how she stayed in touch with former co-workers via phone, text, and
emails and used these communications to keep track of employees terminated by Defendant.167

160

Id. at 3–4.

161

Id. at 2–3.

162

Id.

163

Id. at 3.

164

Id. at 8.

165

Id. at 6–8.

166

Id. at 6.

167

Id. at 6–7.

22

Defendant contends that these statements by Vedros constitute inadmissible hearsay under Federal
Rule of Evidence 801 and they should be struck from the record.168 Defendant also alleges that
Vedros’ statements in paragraphs 34-36 regarding Plaintiff’s replacement were not based on
personal knowledge because Vedros had been terminated seven months prior to the time that
Plaintiff’s replacement was named.169 Defendant asserts that this lack of personal knowledge
violates Rule 56 and these statements should be stricken.170
Next, Defendant objects to the entirety of Exhibit 2, the declaration of Plaintiff’s counsel,
G. Karl Bernard.171 Defendant contends that “Mr. Bernard’s declaration is not related to attorney’s
fees, discovery or any other topic an attorney representing a party would normally submit.”172
Defendant alleges that Bernard’s declaration mainly refers to the merits of the case by referencing
Arabie, her supposed declaration that was never executed, and what Arabie would testify to at
trial.173 Defendant avers that “it is completely improper for an attorney representing a party in a
case to submit a declaration regarding what a witness will allegedly testify to.”174 Defendant asserts
that this is inadmissible hearsay and an improper attempt by Plaintiff’s counsel to sneak in
testimony that he was not able to obtain via acceptable methods.175 For these reasons, Defendant
requests that Bernard’s entire declaration be stricken from the record.176

168

Id. at 7.

169

Id.

170

Id.

171

Id. at 7–8.

172

Id.

173

Id.

174

Id. at 8 (citing In re DirecTech Southwest, Inc., 2009 U.S. Dist. LEXIS 139461 (E.D. La. Nov. 19, 2009)).

175

Id.

176

Id. at 8.

23

III. Legal Standard
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits
show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”177 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”178 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”179
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of
law.180 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.181
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.182 “To satisfy this burden, the movant
may either (1) submit evidentiary documents that negate the existence of some material element
of the opponent’s claim or defense, or (2) if the crucial issue is one on which the opponent will

177

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
178

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

179

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

180

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

181

See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

182

Celotex, 477 U.S. at 323.

24

bear the ultimate burden of proof at trial, demonstrate that the evidence in the record insufficiently
supports an essential element of the opponent’s claim or defense.”183 If the moving party satisfies
its initial burden, the burden shifts to the nonmoving party to “identify specific evidence in the
record, and articulate” precisely how that evidence supports his claims.184 In doing so, the
nonmoving party may not rest upon mere allegations or denials in its pleadings, but rather must
set forth “specific facts showing the existence of a ‘genuine’ issue concerning every essential
component of its case.”185
The nonmovant=s burden of demonstrating a genuine issue of material fact is not satisfied
merely by creating “some metaphysical doubt as to the material facts,” “by conclusory
allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.” 186 Rather, a
factual dispute precludes a grant of summary judgment only if the evidence is sufficient to permit
a reasonable trier of fact to find for the nonmoving party. Hearsay evidence and unsworn
documents that cannot be presented in a form that would be admissible in evidence at trial do not
qualify as competent opposing evidence.187

183

Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (citing Little v. Liquid Air Corp., 939
F.2d 1293, 1299 (5th Cir. 1991)).
184

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
185

Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992); see also Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
186
187

Little, 37 F.3d at 1075.
Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

25

IV. Analysis
A.

Objections to Plaintiff’s Evidence
Pursuant to Federal Rule of Civil Procedure 56(c)(2), on a motion for summary judgment,

a party “may object that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.”188 According to the comments following the revised
rule:
Subdivision (c)(2) provides that a party may object that material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence.
The objection functions much as an objection at trial, adjusted to the pretrial setting.
The burden is on the proponent to show that the material is admissible as presented
or to explain the admissible form that is anticipated…189
Here, Defendant presents objections to the two declarations that Plaintiff attached to her
sur-reply.190 First, Defendant contends that in Exhibit 1, Vedros’ declaration, paragraphs 31–33
and 36 constitute inadmissible hearsay under Federal Rule of Evidence 801 because the statements
refer to information that Vedros obtained from others.191 Specifically, Defendant alleges that the
following statements by Vedros are hearsay: (1) that she stayed in touch with former co-workers
via phone, text, and emails; (2) that she used these communications to keep track of employees
terminated by Defendant; and (3) that after Plaintiff was terminated, many employees at St. Anne’s
talked about Plaintiff’s replacement.192

188

Fed. R. Civ. P. 56(c)(2).

189

Id.

190

Rec. Doc. 47-2 at 6–8.

191

Id. at 7.

192

Id. at 6–7.

26

Federal Rule of Evidence 801(c) defines hearsay as “a statement that the declarant does
not make while testifying at the current trial or hearing; and a party offers in evidence to prove the
truth of the matter asserted in the statement.” In paragraphs 31–33 and 36, Vedros does not repeat
statements made or information conveyed to her by other individuals. Vedros merely describes her
actions in communicating with former colleagues and keeping track of these communications.
Vedros does not offer any out of court statements in the declaration. Vedros’ statements simply
describe her experiences and actions. Thus, the Court will overrule Defendant’s hearsay objections
to paragraphs 31–33 and 36 of Vedros’ declaration.
Defendant also contends that paragraphs 34–36 should be stricken because they are not
based on personal knowledge, in violation of Federal Rule of Civil Procedure 56.193 In arguing
lack of knowledge, Defendant asserts that Vedros had been terminated seven months prior to the
time that Plaintiff’s replacement was named, and Vedros “does not lay any foundation for how she
is aware of Plaintiff’s replacement or the process used to name Plaintiff’s replacement.”194
Under Federal Rule of Civil Procedure 56(c)(4), a “declaration used to support or oppose
a motion [for summary judgment] must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the…declarant is competent to testify on the matters
stated.” Personal knowledge may be proven by a witness’ own testimony or reasonably inferred
from her position or the nature of her participation in the matters to which she swears.195 Here,
Vedros previously worked at St. Anne’s with several staff members. It can be reasonably inferred

193

Id. at 7.

194

Rec. Doc. 47-2 at 7.

See DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005) (“The Ninth Circuit has also found it
proper in the summary judgment context for district courts to rely on affidavits where the affiants' “personal
knowledge and competence to testify are reasonably inferred from their positions and the nature of their
participation in the matters to which they swore.”).
195

27

that Vedros spoke with these individuals personally to obtain details regarding how and when
Plaintiff was replaced. Therefore, the Court overrules Defendant’s objections to paragraphs 34–36
for lack of knowledge because Vedros’ knowledge can be reasonably inferred.
Defendant also objects to the submission of Exhibit 2, a declaration of Plaintiff’s counsel,
G. Karl Bernard.196 Defendant contends that “Mr. Bernard’s declaration is not related to attorney’s
fees, discovery or any other topic an attorney representing a party would normally submit.”197
Defendant alleges that Bernard’s declaration mainly refers to the merits of the case by referencing
Arabie, her supposed declaration that was never executed, and what Arabie would testify to at
trial.198 Defendant avers that “it is completely improper for an attorney representing a party in a
case to submit a declaration regarding what a witness will allegedly testify to.”199 Defendant asserts
that this statement is inadmissible hearsay and an improper attempt by Plaintiff’s counsel to sneak
in testimony that he was not able to obtain via acceptable methods.200 For these reasons, Defendant
requests that Bernard’s entire declaration be stricken from the record.201
As stated above, a “declaration used to support or oppose a motion [for summary judgment]
must be made on personal knowledge, set out facts that would be admissible in evidence, and show
that the…declarant is competent to testify on the matters stated.”202 In Bernard’s declaration, he
states that he is competent to testify to the matters in the document, and it can be inferred that
many of the facts are based on Bernard’s personal knowledge from working on the case. Further,

196

Id. at 7–8.

197

Id.

198

Id.

199

Id. at 8 (citing In re DirecTech Southwest, Inc., 2009 U.S. Dist. LEXIS 139461 (E.D. La. Nov. 19, 2009)).

200

Id.

201

Id. at 8.

202

Fed. R. Civ. P. 56(c)(4).

28

Defendant does not identify why many of the statements in the declaration would be inadmissible
in evidence. Thus, the Court will not strike Bernard’s entire declaration.
The Court notes, however, that in paragraph 13 of the declaration, Bernard describes a
statement by Arabie regarding why Arabie did not want to execute her own declaration. This
statement is hearsay, and Plaintiff does not proffer any reason why this statement would be
admissible at trial under an exception to the hearsay rule. Similarly, the unexecuted affidavit of
Arabie that Bernard attaches to this declaration is also hearsay and must be stricken from the
record. Accordingly, the Court overrules Defendant’s objection to the entirety of Bernard’s
declaration, while sustaining the objection to paragraph 13 of the declaration and the exhibits
attached to the declaration.
In conclusion, the Court overrules Defendant’s objections to Vedros’ declaration. The
Court sustains Defendant’s objections to paragraph 13 of Bernard’s declaration and the exhibits
attached to Bernard’s declaration, while overruling objections to the remainder of Bernard’s
declaration.
B.

Summary Judgment on Plaintiff’s Claims
Defendant argues that the Court should dismiss Plaintiff’s claims for age discrimination

and retaliation under the ADEA because Plaintiff does not provide direct evidence of age
discrimination, Plaintiff cannot establish a prima facie case for either claim, and Plaintiff cannot
establish that Defendant’s proffered reason for termination—poor work performance—was pretext
for either age discrimination or retaliation.203 In opposition, Plaintiff asserts that she presents direct
evidence of discrimination, establishes a prima facie case and pretext for both claims, and genuine

203

Rec. Doc. 29-2.

29

issues of material fact remain on several key issues.204 The Court will address each argument in
turn.
1.

Age Discrimination Claim

Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 205 When a
plaintiff alleges disparate treatment, “liability depends on whether the protected trait (under the
ADEA, age) actually motivated the employer’s decision.”206 In order to state a valid claim under
the ADEA, the plaintiff “has the burden of persuasion to show ‘that age was the ‘but-for’ cause of
[her] employer’s adverse action.’”207
Allegations of intentional employment discrimination can be established by either
circumstantial or direct evidence.208 If a 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.”209 If,
however, a “plaintiff produces only circumstantial evidence of discrimination, the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green,210 guides [a court’s] inquiry.”211

204

Rec. Doc. 36.

205

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141 (2000) (citing 29 U.S.C. § 623(a)(1)).

206

Id. (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).

207

Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010) (citing Gross v. FBL Financial
Services, Inc., 557 U.S. 167 (2009)).
208

Id. (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002)).

209

Sandstad, 309 F.3d at 896 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 252–53 (1989)).

210

411 U.S. 792, 802 (1973).

211

Sandstad, 309 F.3d at 896.

30

In the opposition, Plaintiff contends that she proves her age discrimination claim with both
direct evidence and circumstantial evidence. The Court will first analyze Plaintiff’s direct evidence
of age discrimination.
a.

Direct Evidence of Age Discrimination

“Direct evidence of discrimination is evidence which, if believed, would prove the
existence of a fact (i.e., unlawful discrimination) without any inferences or presumptions.”212 “‘In
order for an age-based comment to be probative of an employer's discriminatory intent, it must be
direct and unambiguous, allowing a reasonable jury to conclude without any inferences or
presumptions that age was an impermissible factor in the decision to terminate the employee.’”213
Workplace comments that are alleged to be direct evidence of discrimination are only considered
as such if the comments are: “1) age related, 2) proximate in time to the employment decision, 3)
made by an individual with authority over the employment decision at issue, and 4) related to the
employment decision at issue.” 214 If the alleged workplace comment does not meet these four
requirements, the comment cannot be considered direct evidence of discrimination, and is treated
as a “stray remark.”215
Here, Plaintiff alleges that while Vedros was Plaintiff’s supervisor, Allen, the hospital
CEO, instructed Vedros to terminate long-term employees such as Plaintiff.216 In her sur-reply,
Plaintiff presents a revised declaration of Vedros, wherein Vedros states the following: “Annette

212

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993).

213

Moss v. BMC Software, Inc., 610 F.3d 917, 929 (5th Cir. 2010) (quoting EEOC v. Texas Instruments,
Inc., 100 F.3d 1173, 1181 (5th Cir. 1996)).
214

Moss, 610 F.3d at 929 (quoting Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 683 (5th Cir.2001).

215

Id.

216

Rec. Doc. 36 at 14–15.

31

Adams, like [Plaintiff], was a senior management level employee, over the age of 40, at St. Anne
that Tim Allen wanted me to terminate.”217 “Notwithstanding [Plaintiff's] performance, Tim Allen
wanted me to terminate [Plaintiff’s] employment along with several other employees over the age
of forty, without any consideration for their actual job performance.”218 “When pressed to
terminate these older employees, I expressed to Mr. Allen that I thought what he was attempting
to force me to do was wrong.”219 “It is my belief that one of the reasons why I was terminated was
because I refused to terminate [Plaintiff] and other senior employees over the age of 40 at St. Anne
General Hospital.”220
In analyzing whether these allegations constitute direct evidence of discrimination, the
Court first notes that Plaintiff does not present any evidence of a comment made by Allen. Plaintiff
does not proffer a statement by Allen that used the term “long-term” or allege that Allen made a
direct comment about employees over 40. Rather, Vedros summarizes what she believed Allen
wanted her to do. This is not a comment as typically analyzed in the Fifth Circuit as direct
evidence.221 Further, even if Allen made such comments, they are not direct and unambiguous.222
A reasonable jury would have to draw inferences or make presumptions about what Allen may
have intended. Therefore, Vedros’ interpretations of her discussion with Allen do not meet the

217

Rec. Doc. 46-1 at 3.

218

Id. at 3–4.

219

Id. at 4.

220

Id. at 2.

See Jackson, 602 F.3d at 380–81 (manager told plaintiff’s coworker that “he was going to be in charge of
all the plants when that old, gray-haired fart retired”); Moss, 610 F.3d at 929 (supervisor told plaintiff that
she wanted to hire someone at a “more junior” level); E.E.O.C. v. Texas Instruments Inc., 100 F.3d 1173,
1181 (5th Cir. 1996) (personnel director told plaintiff, “it's just that you've reached that age and years of
service that we can bridge you to retirement.”); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir.
1993) (terminating manager told employee, “Cliff, I hope when I get to your age, somebody does the same
thing for me.”).
221

222

Moss, 610 F.3d at 929.

32

criteria for direct evidence and are thus insufficient to defeat summary judgment. Accordingly, the
Court moves to Plaintiff’s circumstantial evidence of age discrimination.
b.

Age Discrimination under the Burden-Shifting Framework

Courts in the Fifth Circuit analyze circumstantial evidence of age discrimination through
the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green.223 Under the McDonnell Douglas analysis, a plaintiff must first establish a prima facie case
of discrimination based on age.224 “If the plaintiff successfully makes out a prima facie case, the
burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the
termination.”225 After the employer meets this burden, the plaintiff must prove that the employer’s
proffered reason for the termination was not its true reason, but was a pretext for discrimination.226
i.

Prima Facie Case

To establish a prima facie case of age discrimination under McDonnell Douglas, a plaintiff
must show that: “(1) [s]he was discharged; (2) [s]he was qualified for the position; (3) [s]he was
within the protected class at the time of discharge; and (4) [s]he was either i) replaced by someone
outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because
of h[er] age.”227

Jackson, 602 F.3d at 378 (“[W]e are bound by our circuit precedent applying McDonnell
Douglas to age discrimination cases.”) (citing Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir.
2005); Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005); Patrick v. Ridge, 394 F.3d 311,
315 (5th Cir. 2004); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896–97 (5th Cir. 2002); Bodenheimer
v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)); Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d 470,
474 (5th Cir. 2015); Squyres v. Heico Companies, L.L.C., 782 F.3d 224, 231 (5th Cir. 2015).
223

224

Goudeau, 793 F.3d at 474 (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)).

225

Id.

226

Id. (quoting Squyres, 782 F.3d at 231 (quoting Reeves, 530 U.S. at 143)).

227

Goudeau, 793 F.3d at 474 (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)).

33

Here, Plaintiff asserts that she presents a prima facie case of discrimination because she
shows that: (1) at the time of termination, she was over the age of forty, (2) she was qualified for
the position, as evidenced by her thirty-year record of successful performance, and (3) she suffered
an adverse employment action when Defendant terminated her from her position.228 Plaintiff
contends that the parties agree that the first three prongs are established, and the only element in
contention is whether Plaintiff has proven the fourth element: that Plaintiff was replaced by
someone outside her protected group or was treated less favorably than other similarly situated
employees outside the protected group 229 Plaintiff avers that she has established the fourth element
by showing that she was replaced by Krystal Reisinger, a nurse in her late twenties or early thirties,
and other individuals over the age of forty were terminated or demoted in an “adverse manner.”230
Defendant does not contest that Plaintiff has established the first three elements of a prima
facie case.231 Defendant’s motion rests on the argument that Plaintiff has offered no evidence that
she was treated differently than similarly situated individuals outside her protected class.232
Specifically, Defendant contends that Plaintiff cannot present evidence of younger employees who
were similarly situated, yet treated more favorably than Plaintiff.233 The Court need not contend
with Defendant’s argument, however, because evidence of a similarly situated person being treated
more favorably is not the only means of proving the fourth element of a prima facie case. Per Fifth
Circuit precedent, a Plaintiff can show that “‘[s]he was either i) replaced by someone outside the

228

Rec. Doc. 36 at 15–17.

229

Id. at 16.

230

Id. at 17.

231

Rec. Doc. 29-2 at 20–21.

232

Id.

233

Id.

34

protected class, ii) replaced by someone younger, or iii) otherwise discharged because of h[er]
age.’”234 Here, Plaintiff has chosen to argue that she was replaced by someone younger. 235 Thus,
the Court will analyze whether Plaintiff provides sufficient evidence to support this element.
Plaintiff asserts that after her termination, she was replaced by Krystal Reisinger, a nurse
“half her age” who was believed to be in her “early thirties or late twenties.”236 Defendant alleges,
however, that Plaintiff was not replaced by a younger person because Reisinger was Plaintiff’s
second replacement.237 According to Defendant, Plaintiff was initially replaced by Kelly Dufrene,
a 58-year-old nurse.238 Both parties rely on the deposition transcript of Plaintiff’s former
supervisor, Jane Semere, to support their factual assertions regarding the age of Plaintiff’s
replacement. Thus, the Court looks to the deposition of Semere for clarification on the nature of
Plaintiff’s replacement.
When asked during her deposition whether Plaintiff was replaced, Semere stated that
Plaintiff was initially replaced by an interim leader named Kelly Dufrene.239 Semere testified that
she “had asked [Dufrene] to step in and be an interim leader, but she was in there for a few months.
And she didn’t want to stay in that position, and so then we put the position up for applicants.”240
Semere then testified that Reisinger permanently took over the position after Dufrene left, and
Reisinger was “probably early 30s or late 20s.”241

234

Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004) (quoting Palasota v. Haggar Clothing
Co., 342 F.3d 569, 576 (5th Cir. 2003)).
235

Rec. Doc. 36 at 17.

236

Id.

237

Rec. Doc. 40 at 4.

238

Id.

239

Rec. Doc. 36-6 at 50.

240

Id.

241

Id. at 51.

35

This testimony by Semere creates a question of whether an interim replacement, who was
six years younger than Plaintiff, and a permanent replacement, who was at least thirty years
younger than Plaintiff, are sufficient evidence of Plaintiff being replaced by someone younger.
The Fifth Circuit has not addressed the question of whether the Court should look to the interim
replacement or the permanent replacement in determining whether a plaintiff has established a
prima facie case of discrimination. Therefore, this Court will consider both replacements.
The Court begins by examining Plaintiff’s permanent replacement, Krystal Reisinger.242 In
Semere’s deposition, Semere testifies that Reisinger was “probably [in her] early 30s or late
20s.”243 It is well-settled among courts that a substantial age difference between a terminated
employee and her replacement is sufficient to create a presumption of age discrimination.244 As
Plaintiff was 64-years-old at the time of her termination, and Reisinger was at least 30 years
younger, the significant age difference between Plaintiff and Reisinger would establish a prima
facie claim for age discrimination.
Turning to Kelly Dufrene, Plaintiff’s interim replacement, Defendant states in its briefing
that Dufrene was only six years younger than Plaintiff and that this is important to the analysis of
whether Plaintiff establishes a prima facie case, yet, Defendant does not cite any authority or
provide any support for why a six-year age difference does not support a prima facie case. When
addressing an age differential of five or six years between a plaintiff and a replacement, the Fifth

242

Rec. Doc. 36 at 17.

243

Rec. Doc. 36-6 at 51.

O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) (“[T[he fact that a replacement is
substantially younger than the plaintiff is a far more reliable indicator of age discrimination..”); Rachid v.
Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004) (noting that inference of age discrimination is created
when person is replaced by someone significantly younger); Flanner v. Chase Inv. Servs. Corp., 600 F. App'x
914, 919 (5th Cir. 2015) (finding that plaintiff, who was 59, had presented a prima facie case because one of
his replacements was the substantially younger age of 32).
244

36

Circuit has explicitly noted that it “has not settled on a standard for what age difference qualifies
as ‘substantially younger’ such that an inference of age discrimination may be made to establish a
prime facie case.”245
In Bienkowski v. American Airlines, the Fifth Circuit found that a plaintiff can establish a
prima facie case of age discrimination where the plaintiff is replaced by a younger worker, even if
the younger worker is also within the protected class.246 However, in Bienkowski, the court also
found that such a showing is not necessarily sufficient to prove a prima facie case, and the general
requirement is that a plaintiff must show that he was replaced by a worker “sufficiently younger
in the context of his employment to permit an inference of age discrimination.”247 The Fifth Circuit
in Bienkowski found that the five year age difference between the plaintiff and the new employee,
along with the fact that the replacement worker was the same age, fifty-four, as the average worker
in the plaintiff’s position, created a close question of whether the plaintiff had established a prima
facie case.248 Rather than decide this “close question,” the Fifth Circuit “prefer[red] to factor in the
relative ages of [the plaintiff] and his colleagues as evidence on [the ultimate issue of intentional
age discrimination].”249
Following the Fifth Circuit’s decision in Bienkowski, the Supreme Court decided
O’Connor v. Consolidated Coin Caterers Corp.250 In O’Connor, the Supreme Court held that
merely being replaced by someone outside the protected class is not sufficient to establish a prima

245

Flanner, 600 F. App'x at 919 (citing Rachid, 376 F.3d at 313; Bienkowski v. American Airlines,
Inc., 851 F.2d 1503 (5th Cir. 1988)).
246

Bienkowski, 851 F.2d at1506.

247

Id.

248

Id.

249

Id.

250

517 U.S. 308 (1996).

37

facie case; rather, an employee demonstrates an inference of age discrimination when he is
replaced by an employee “significantly younger.”251 Since O’Connor, the Fifth Circuit has not
clearly defined what constitutes “significantly younger,” but the court first confronted the issue in
Rachid v. Jack in the Box, Inc.252 In Rachid, the parties contested whether a five-year age difference
was “significant” or “substantial” under O’Connor.253 The Fifth Circuit acknowledged that a fiveyear difference continued to be a “close question,” but the court declined to reach the issue because
the plaintiff’s other evidence of intentional discrimination easily established a prima facie case.254
The Fifth Circuit again faced a “close question” in Flanner v. Chase Investment Services
Corp.255 In Flanner, the 59-year-old plaintiff had been replaced by two individuals, one who was
53 and one who was 32.256 In determining whether the 53-year-old replacement created an
inference of discrimination, the Fifth Circuit noted that the six-year age difference, without more,
was again a “close question.”257 The Fifth Circuit noted that there is no bright-line rule of what
age differential is sufficient proof,258 and the court determined that the age differential regarding
the 53-year-old replacement was better utilized as evidence when determining the ultimate issue
of intentional discrimination.259Additionally, the Fifth Circuit noted that the plaintiff’s other
replacement, who was 32, was “substantially younger” and was sufficient to raise an inference of

251

Id.

252

376 F.3d 305 (5th Cir. 2004).

253

Id.

Id. at 313. The Fifth Circuit found the plaintiff’s other evidence compelling where the plaintiff presented
multiple ageist comments by his supervisor. Id.
254

255

600 F. App'x 914, 919 (5th Cir. 2015).

256

Id. at 916.

257

Id.

258

See Bienkowski, 851 F.2d at 1506 (citing McCorstin v. United States Steel Corp., 621 F.2d 749, 754 (5th
Cir. 1980)).
259

Flanner, 600 F. App'x at 919.

38

discrimination.260 Thus, the Fifth Circuit found that the Plaintiff had established a prima facie case
of discrimination.261
Here, Dufrene, who was the interim replacement for Plaintiff, was six years younger than
Plaintiff at the time Dufrene assumed the position.262 Under Fifth Circuit precedent, this is a “close
question” that may or may not raise an inference of discrimination. Therefore, this Court follows
the lead of the Fifth Circuit and declines to find that Dufrene’s age difference is insufficient to
create a prima facie case. Rather, the Court will consider Dufrene’s age as part of its analysis on
whether Plaintiff has shown that Defendant was ultimately motivated by intentional
discrimination. Further, as the Fifth Circuit noted in Flanner, Plaintiff’s permanent replacement,
Reisinger, was substantially younger than Plaintiff and easily raises an inference of discrimination.
The Fifth Circuit has stated that in ADEA cases, the burden on a plaintiff to present a prima facie
case is not an onerous one,263 and a plaintiff need only make a “minimal showing.”264 Taking the
evidence of Plaintiff’s two replacements as a whole, the Court finds that Plaintiff presents a prima
facie case of age discrimination.265

260

Id.

261

Id.

262

Rec. Doc. 36-6 at 50–51.

263

Sanders v. Anadarko Petroleum Corp., 108 F. App'x 139, 142 (5th Cir. 2004).

Young v. Harris Health Care, Inc., 226 F.3d 643 (5th Cir. 2000); Sanders, 108 F. App’x at 142 (quoting
Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996)); McCreless v. Moore Bus. Forms Inc.,
111 F.3d 893 (5th Cir. 1997).
264

265

Because the Court finds that Plaintiff presents a prima facie case based on evidence of a younger
replacement, it need not address Plaintiff’s evidence that other individuals in her protected were similarly
terminated or demoted. See Rec. Doc. 36 at 17.

39

ii.

Legitimate, Non-Discriminatory Reason

Once the Court finds that Plaintiff has made a prima facie showing, a presumption of
discrimination is created, and the burden shifts to Defendant to articulate a legitimate,
nondiscriminatory reason for its employment action.266 Defendant only bears the burden of
production, not persuasion, and this “involve[s] no credibility assessment.”267
Here, Defendant asserts that Plaintiff was terminated from her position because she had
exhibited poor performance in her role, and despite two PIPs that were implemented to help
Plaintiff meet Defendant’s standards, Plaintiff failed to adequately perform.268 In support of this
assertion, Defendant presents text from evaluations completed by three of Plaintiff’s supervisors
and findings by the Studer Group, an independent consultant, wherein various individuals detail
Plaintiff’s failure to comply with hospital directives, lack of willingness to change, and inability
to adequately supervise employees.269
In the Studer Group’s January 20, 2016 site visit summary, the consultant states the
following regarding Plaintiff:
Does not access and use data…Could not explain or even postulate a cause for the
downturn in patient experience data in Q4. When questioned she admits she is
unsure about the competency and consistency of staff in execution of nonnegotiable behaviors. Also reports that accountability conversations with staff
members have not produced change in behavior. Recommend objective evaluation
of this leaders [sic] skills and mitigation to ensure success.270
In Plaintiff’s second PIP, issued on February 11, 2016, Semere informs Plaintiff that:

266

Squyres, 782 F.3d at 231 (quoting Reeves, 530 U.S. at 143).

267

Id.

268

Rec. Doc. 29-2 at 21.

269

Id.

270

Rec. Doc. 29-7 at 5.

40

[T]here is no accountability or apparent tracking of tardiness and or attendance
[among your staff]…Additionally, you have had recent difficulties with narcotic
discrepancy resolution and 63 unaccounted for Benadryl vials in your department.
It was not communicate to me that you had taken any actions regarding these issues
and there seemed to be no sense of urgency in resolving these issues…These
behaviors are a clear indication of a lack of professionalism among the staff.”271
The

Fifth

Circuit

has

recognized

inadequate

performance

as

a

legitimate,

nondiscriminatory reason for an employment decision,272 and the Court finds that Defendant has
presented sufficient evidence that Plaintiff’s performance drove its employment decision. Further,
Plaintiff does not contest that Defendant has met its burden of production. Thus, the Court finds
that Defendant has satisfied its burden of producing evidence of a legitimate, nondiscriminatory
reason for its decision to terminate Plaintiff.
iii.

Pretext

Once a court finds that a defendant has met its burden of producing a legitimate, nondiscriminatory reason for its employment decision, “the presumption of discrimination created by
the plaintiff's prima facie case disappears and the plaintiff must meet its ultimate burden of
persuasion on the issue of intentional discrimination.”273 Plaintiff must “prove by a preponderance
of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.”274 A plaintiff can show pretext “‘either through evidence of

271

Rec. Doc. 29-3 at 179.

272

See Machinchick v. PB Power, Inc., 398 F.3d 345, 354 (5th Cir. 2005); Kelly v. Costco Wholesale Corp.,
632 F. App'x 779, 782 (5th Cir. 2015); Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d 470, 476 (5th Cir.
2015).
273

Machinchick, 398 F.3d at 350.

274

Squyres, 782 F.3d at 231 (quoting Reeves, 530 U.S. at 143).

41

disparate treatment or by showing that the employer's proffered explanation is false or ‘unworthy
of credence.’”275
Here, Defendant asserts that there is uncontested evidence that Plaintiff’s performance was
unsatisfactory.276 Defendant avers that there is long-standing evidence of this history of poor
performance.277 In a 2011 Mid-Year Assessment, Arabie found that Plaintiff needed help with
increasing employee engagement and patient satisfaction and Plaintiff needed to become less
defensive.278 In the June 11, 2015 PIP, Vedros stated that Plaintiff was not creating staff schedules
in a manner that met staffing requirements, was not complying with a directive to reduce her staff’s
overtime hours, was not holding her staff accountable on hospital procedures, and was
uncooperative and unwilling to receive feedback from her superiors on certain issues.279
During its January 20, 2016 visit, the Studer Group observed that Plaintiff did not conduct
Nurse Leader Rounding effectively, did not respond appropriately to patient feedback and
environmental cues, and could not account for downturns in patient ratings.280 In the February 11,
2016 PIP, Semere stated that Plaintiff had a lack of accountability among her staff, failure to
address missing narcotics, and failure to utilize required forms.281 The Court finds that this
evidence presents a history of performance issues by Plaintiff, but the Court also finds that Plaintiff
offers evidence to contest whether, despite these performance issues, Defendant’s reason for
termination was still false.

275

Jackson, 602 F.3d at 378–79 (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).

276

Rec. Doc. 29-2 at 22–23.

277

Id.

278

Rec. Doc. 29-3 at 124.

279

Id. at 146–48.

280

Rec. Doc. 29-7 at 5.

281

Rec. Doc. 29-3 at 179–80.

42

Plaintiff offers a revised declaration of Vedros, wherein Vedros states the following: “Tim
Allen strongly encouraged me to place [Plaintiff] on a performance improvement plan in June,
2015.”282 “During the PIP period, [Plaintiff] maintained her standard of excellence as a nurse while
improving in all areas of concern.”283 “[Plaintiff] satisfied all the terms of the performance
improvement plan.”284 “Notwithstanding [Plaintiff]'s performance, Tim Allen wanted me to
terminate [Plaintiff’s] employment along with several other employees over the age of forty,
without any consideration for their actual job performance.”285 “When pressed to terminate these
older employees, I expressed to Mr. Allen that I thought what he was attempting to force me to do
was wrong.”286
At the summary judgment stage, “[t]he question is whether [the plaintiff] has shown that
there is a genuine issue of material fact as to whether [the employer’s] reason was pretextual.”287
Here, Plaintiff has shown that there are genuine issues of material fact in dispute. Defendant avers
that Plaintiff’s poor performance was the reason for terminating Plaintiff, but Vedros’ testimony
reveals that even when Plaintiff showed improvement in her performance and had satisfied the
PIP, Allen still wanted to terminate Plaintiff. As Plaintiff’s supervisor, Vedros believed that
Plaintiff had improved enough that termination was not warranted, but, according to Vedros, Allen
insisted that Plaintiff and other older employees be terminated despite their performance. This is

282

Rec. Doc. 46-1 at 3.

283

Id.

284

Id.

285

Id. at 3–4.

286

Id. at 4.

287

Moss, 610 F.3d at 922 (quoting Jackson, 602 F.3d at 378–79).

43

an issue of fact on whether Allen targeted employees based on their age and disregarded
performance.
Issues of material fact also exist on whether Allen was part of the decision to terminate
Plaintiff. During Semere’s deposition, she was asked whether she talked with Allen about the
decision to terminate Plaintiff.288 In response, Semere stated: “Yes, I'm sure I had conversations. I
don't recall exactly, but I don't ever terminate somebody without letting him [Allen] know that
that’s going to happen.”289 When next asked what Allen said in response and whether he showed
any concern, Semere responded, “No. He usually follows the lead of the HR business partner, let
them kind of direct what we do in our decisions.”290 In Allen’s deposition, when asked what role
he played in Plaintiff’s termination, he stated that “[he] was involved from the perspective of
hearing what was going on, because my people routinely report out to me what they're doing.”291
Defendant asserts that this testimony by Semere proves that Semere was the “undisputed
decisionmaker” who decided to terminate Plaintiff based solely on performance and without any
influence from Allen.292 Plaintiff, however, argues that as Semere’s supervisor who approved all
of Semere’s decisions, Allen was the final authority on termination decisions.293 Plaintiff insists
that when Semere decided to terminate Plaintiff, Allen may have influenced this decision.294 The
Court finds some support for Plaintiff’s argument in the record.

288

Rec. Doc. 36-6 at 50.

289

Id.

290

Id.

291

Rec. Doc. 36-5 at 40.

292

Rec. Doc. 40 at 10.

293

Rec. Doc. 46 at 4.

294

Id.

44

Semere acknowledges that before she terminated a staff member, she would discuss it with
Allen, and both Semere and Allen admit that Semere spoke with Allen about Plaintiff’s
termination. Though Semere testifies that Allen “usually follows the lead of the HR business
partner,” Semere does not clarify whether Allen simply followed HR regarding Plaintiff’s
termination. Neither does Semere clearly detail whether Allen was more involved in the decision.
In fact, Semere’s recollections of Allen’s involvement is equivocal in and of itself. Semere states
that Allen did not have concerns about the termination decision and usually followed the lead of
the HR partner, but immediately before this, Semere had stated that she did not recall the
conversations that she had with Allen regarding Plaintiff’s termination. It is unclear how Semere
recalled that Allen had no concerns about Plaintiff’s termination if Semere did not remember her
conversations with Allen. Further, Semere’s amorphous testimony of her discussions with Allen
does not clarify whether and to what extent Allen was involved in the decision to terminate
Plaintiff. Allen also does not make this fact clear in his deposition.
Ultimately, Plaintiff alleges that Allen gave Vedros the directive to terminate older
employees. There is an issue of fact on whether this occurred and its significance. Plaintiff also
alleges that Allen participated in the decision to terminate Plaintiff. There are issues of fact
surrounding Allen and Semere’s discussion and the process the parties engaged in to arrive at the
decision to terminate Plaintiff.295 Drawing all reasonable inferences in favor of Plaintiff,296 these
issues are material disputes because they are probative of Defendant’s true motivation for
terminating Plaintiff. If Allen did in fact direct Vedros to terminate Plaintiff and other older
employees without regard to their performance, and Allen was part of the decision to terminate

295

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

296

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

45

Plaintiff, then Defendant’s proffered reason for termination may have been pretextual. Such
genuine disputes are issues that must be resolved by a trier of fact. Thus, judgment as a matter of
law is inappropriate, and the Court will deny summary judgment on the age discrimination claim.
2.

Retaliation Claim

Defendant asserts that Plaintiff fails to present a prima facie case of retaliation because
Plaintiff cannot prove a causal link between her report of age discrimination and her termination.297
Defendant also contends that Plaintiff cannot prove that terminating her for alleged poor
performance was a pretext for retaliation.298 In opposition, Plaintiff directly asserts that she
establishes a prima facie case of retaliation based on her placement on the second PIP.299 It is
unclear whether Plaintiff also bases her retaliation claim on her actual termination, but in reviewing
the briefing, it appears that Plaintiff’s arguments in support of her retaliation claim focus on both
the second PIP and the termination as retaliatory actions.300 Therefore, the Court will analysis
whether Plaintiff presents a retaliation claim based on both the second PIP and her termination.
“The ADEA’s antiretaliation provision prohibits an employer from discriminating against
an employee for opposing an unlawful practice or asserting a charge, testifying, assisting, or
participating in an ADEA proceeding or investigation.”301 The burden-shifting analysis presented
in McDonnell Douglas applies to ADEA retaliation claims that are based on circumstantial
evidence.302 If an employee makes a prima facie showing that the employer engaged in retaliation,

297

Rec. Doc. 29-2 at 23–24.

298

Id.

299

Rec. Doc. 36.

300

See, e.g., Rec. Doc. 26 at 21–22; Rec. Doc. 46 at 4.

301

Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d 470, 478 (5th Cir. 2015) (citing 29 U.S.C. § 623(d)).

302

Fanning v. Metro. Transit Auth. of Harris Cty., Tex., 141 F. App'x 311, 313 (5th Cir. 2005) (citing Patrick
v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004)).

46

the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the
employee’s termination.303 If the employer meets this burden, the employee must then prove that
the employer intentionally discriminated; this can be proven by showing that the employer’s
proffered reason was pretext.304
To establish a prima facie retaliation case, a plaintiff must show that “1) [s]he engaged in
protected activity; (2) [s]he suffered an adverse employment decision; and (3) a causal link exists
between the protected activity and the adverse employment decision.”305 Here, Plaintiff asserts
that she presents a prima facie case because (1) she engaged in protected activity by stating in her
rebuttal that the first PIP was issued based on age discrimination, (2) Defendant’s “nit-picking
criticism of her work and issuance of a second PIP just a few months later” constitute adverse
employment actions, and (3) causation is established by proximity in time and Semere’s disinterest
in helping Plaintiff improve.306 Defendant concedes, for the purposes of summary judgment, that
Plaintiff has established the first two elements of her prima facie case, but Defendant argues that
Plaintiff cannot establish a causal link between her activity and the adverse employment action.307
Considering the first element of Plaintiff’s prima facie retaliation case, “[a] plaintiff
engages in ‘protected activity’ by ‘oppos[ing] any practice forbidden by the ADEA.’”308 Filing an
internal complaint of discrimination qualifies as protected activity.309 Here, Plaintiff stated in her

303

Id.

304

Id.

305

Goudeau, 793 F.3d at 478 (5th Cir. 2015) (quoting Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th
Cir. 2001)).
306

Rec. Doc. 36 at 21.

307

Rec. Doc. 29-2 at 24.

308

Gonzales v. Wells Fargo Bank, Nat'l Ass'n, 733 F. App'x 795, 798 (5th Cir. 2018) (quoting Heggemeier
v. Caldwell Cty., 826 F.3d 861, 869 (5th Cir. 2016) (per curiam)).
309

Fierros v. Tex. Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001).

47

rebuttal that being placed on the PIP “seems like a type of age discrimination against me.”310
Further, Plaintiff met with Allen and McKenna regarding her rebuttal and stated during the meeting
that she believed the PIP was issued based on age discrimination.311 Because Plaintiff directly told
her supervisors that she suspects age discrimination, the Court finds that this qualifies as protected
activity.
Regarding the second element of Plaintiff’s prima facie case, an adverse employment
action is any action that “‘might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination.’”312 Plaintiff asserts that “the issuance of the second PIP by
Ms. Semere is the basis for Plaintiff’s retaliation claim.”313According to Semere, a PIP is a
disciplinary action that is one step away from termination,314 and the PIP itself states that failure
to meet its terms can result in “disciplinary action up to an including termination.”315 It is likely
that threat of being issued an PIP would dissuade a worker from reporting discrimination. Further,
Plaintiff’s actual termination is a clear adverse employment action. Therefore, the Court finds that
Plaintiff suffered an adverse employment action when Semere placed Plaintiff on the second PIP
and subsequently terminated her employment.
Next, Plaintiff contends that causation is established by the proximity in time between her
discrimination allegations and the implementation of the second PIP.316 The Fifth Circuit has

310

Rec. Doc. 36-3 at 12.

311

Rec. Doc. 36-2 at 30.

312

McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (quoting Burlington Northern & Santa
Fe Railway Co. v. White, 548 U.S. 53 (2006)).
313

Rec. Doc. 36 at 9.

314

Rec. Doc. 36-6 at 48.

315

Rec. Doc. 29-3 at 180.

316

Rec. Doc. 36 at 21.

48

declared that “[t]emporal proximity between protected activity and an adverse employment action,
by itself, does not constitute sufficient evidence to satisfy the prima facie burden unless that
proximity is ‘very close.’”317 Here, Plaintiff submitted her discrimination allegations on June 18,
2015.318 Semere placed Plaintiff on the second PIP on February 11, 2016.319 An eight month lapse
is not a “very close” proximity that creates a causal link for Plaintiff’s prima facie case.
In most retaliation cases, “[the] ‘causal link’ is established when the evidence demonstrates
that ‘the employer's decision to terminate was based in part on knowledge of the employee's
protected activity.’”320 The Fifth Circuit has emphasized that “the focus must be on the final
decisionmaker; that is, the plaintiff must present evidence that the final decisionmaker with respect
to the adverse employment action was aware of the plaintiff's protected conduct.”321 Here, Plaintiff
asserts that Allen, not Semere, is the person who directed that Plaintiff be placed on the second
PIP and ultimately terminated.322 In contrast, Defendant alleges that Semere, and not Allen, was
the decisionmaker.323 Before the Court can analyze what the ultimate decisionmaker had
knowledge of, it must first determine who was the decisionmaker.
Defendant asserts that Semere was the decisionmaker who placed Plaintiff on the second
PIP and terminated Plaintiff.324 Defendant insists that Allen was not a key player in these

317

Everett v. Cent. Mississippi, Inc. Head Start Program, 444 F. App'x 38, 46 (5th Cir. 2011) (citing
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (noting 3 and 4 year period insufficient).
318

Rec. Doc. 36-3 at 12.

319

Rec. Doc. 36 at 7.

320

Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (quoting Sherrod v. American Airlines,
Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)).
321

Everett v. Cent. Mississippi, Inc. Head Start Program, 444 F. App'x 38, 46 (5th Cir. 2011) (citing
Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003)).
322

Rec. Doc. 36 at 22.

323

Rec. Doc. 40 at 10.

324

Rec. Doc. 29-2 at 24.

49

decisions.325 As discussed above, the evidence on this is unclear. Semere and Allen both admit that
Semere spoke with Allen regarding the termination. There are few details on the extent of the
parties’ exchange or Allen’s participation in the decision to terminate Semere, but drawing all
reasonable inferences in favor of Plaintiff,326 it is likely that as Semere’s boss, Allen had the final
authority over whether Semere terminated Plaintiff or chose to keep Plaintiff on staff. In presenting
a prima facie case, a Plaintiff need only make a “minimal showing.”327 It is not an onerous
burden.328 Accordingly, the evidence of Allen’s involvement in the termination decision is
sufficient to establish, for the prima facie case, that Allen was a “final decisionmaker” on
Plaintiff’s termination. The record does not, however, reveal that Allen spoke with Semere about
placing on the second PIP. Thus, the Court can only consider Allen as a decisionmaker on the
termination claim. Semere remains the sole decisionmaker regarding the implementation of the
second PIP.
Considering first whether Semere retaliated against Plaintiff by placing her on the second
PIP, the Court looks to whether Semere had knowledge of Plaintiff’s protected activity. 329
According to Defendant, Semere did not work at St. Anne’s at the time Plaintiff made her
discrimination allegations and Semere was never informed of these allegations.330 In Semere’s
declaration, Semere states that she “was not aware that [Plaintiff] had complained of age

325

Id.

326

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

Young v. Harris Health Care, Inc., 226 F.3d 643 (5th Cir. 2000); Sanders, 108 F. App’x at 142 (quoting
Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996)); McCreless v. Moore Bus. Forms Inc.,
111 F.3d 893 (5th Cir. 1997).
327

328

Id.

329

Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (quoting Sherrod v. American Airlines,
Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)).
330

Rec. Doc. 29-2 at 24.

50

discrimination against [] Vedros at the time [Semere] issued a Performance Improvement Plan to
[Plaintiff] and at the time I decided to terminate [Plaintiff’s] employment.”331 Plaintiff does not
provide any evidence to refute this assertion. Neither does Plaintiff allege that Semere learned
about Plaintiff’s discrimination allegations through another channel. Additionally, the Court does
not find any evidence in the record that proves otherwise. “If an employer is unaware of an
employee’s protected conduct at the time of the adverse employment action, the employer plainly
could not have retaliated against the employee based on that conduct.”332 Thus, Plaintiff cannot
establish a causal link between her discrimination complaint and Semere placing her on the second
Plan. Accordingly, Plaintiff cannot support a prima face case for retaliation based on the second
PIP.
Turning to Allen as a decisionmaker on Plaintiff’s termination, the Court examines whether
Allen had knowledge of Plaintiff’s protected activity. Plaintiff asserts that after she was placed on
the first PIP, she wrote a rebuttal to management, including in the document an accusation that the
first PIP was issued because of age discrimination.333 Plaintiff also provides evidence from her
meeting with Allen and McKenna regarding her rebuttal.334 In her deposition, Plaintiff states that
when she met with Allen and McKenna to discuss the first PIP, Allen had a “very discouraging
look on his face.”335 Plaintiff testified that Allen kept asking, “What do you want?” and Plaintiff
responded, “I want my job.”336 Plaintiff contends that during this meeting, she told Allen and

331

Rec. Doc. 29-7 at 1.

332

Gollas v. Univ. Of Texas Health Sci. Ctr. At Houston, 425 F. App'x 318, 325 (5th Cir. 2011).

333

Rec. Doc. 36 at 5; Rec. Doc. 36-2 at 30.

334

Rec. Doc. 36 at 6.

335

Rec. Doc. 36-2 at 30.

336

Id.

51

McKenna that she believed the PIP was age discrimination.337 This testimony proves that Allen,
who had the authority over Plaintiff’s termination, knew of Plaintiff’s age discrimination
allegations. Because a decisionmaker involved in the termination process was aware of Plaintiff’s
protected activity, this establishes the causal link for Plaintiff’s prima facie retaliation case based
on the termination.
After Plaintiff establishes her prima facie case of retaliation, Defendant must articulate a
legitimate, non-discriminatory reason for terminating Plaintiff.338 As discussed above, Defendant
insists that Plaintiff was terminated solely based on her poor work performance.339 Plaintiff asserts
that this reason is pretextual because Allen, who was a decisionmaker, sought to terminate older
employees without regard to their performance.340 The Court has already found a genuine dispute
of material fact on the issue of whether Defendant’s proffered reason was pretext. Because this
same issue of fact exists for Plaintiff’s retaliation claim, summary judgment is also inappropriate
on this claim.
V. Conclusion
There remains a genuine issue of material fact on whether Plaintiff’s work performance
was a pretextual reason for Defendant to terminate Plaintiff’s employment. Because a genuine
issue of fact remains on this issue, Defendant is not entitled to judgment as a matter of law on
either the age discrimination or the retaliation claim.
Accordingly,

337

Id.

338

See Fanning v. Metro. Transit Auth. of Harris Cty., Tex., 141 F. App'x 311, 313 (5th Cir. 2005) (citing
Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004)).
339

Rec. Doc. 29-2 at 21–22.

340

Rec. Doc. 36 at 18–20.

52

IT IS HEREBY ORDERED that Defendant Ochsner Clinic Foundation’s “Motion for
Summary Judgment”341 is DENIED.
NEW ORLEANS, LOUISIANA, this _____ day of May, 2019.
13th

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

341

Rec. Doc. 29.

53