Kennedy v. Parkview Baptist School

Filing 75

REASONS FOR RULING granting the 36 MOTION for Summary Judgment filed by Parkview Baptist School, Inc. Signed by Magistrate Judge Stephen C. Riedlinger on 12/24/2014. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MELISSA KENNEDY
CIVIL ACTION
VERSUS
NUMBER 13-478-SCR
PARKVIEW BAPTIST SCHOOL, INC.
REASONS FOR RULING ON MOTION FOR SUMMARY JUDGMENT
Before the court is a Motion for Summary Judgment filed by the
defendant Parkview Baptist School, Inc. Record document number 36.
The motion is opposed.1
Based on a careful review of the competent summary judgment
evidence, the applicable law and the analysis that follows,2 the
defendant has demonstrated that it is entitled to summary judgment

1

Record document number 45. Defendant also filed a reply
memorandum. Record document number 51. Plaintiff filed a surreply memorandum. Record document number 64.
2

The analysis does not recite every argument or bit of
summary judgment evidence contained in the extensive summary
judgment record.
However, all of the arguments and competent
summary evidence submitted by the parties, even if not specifically
mentioned in the analysis, have been reviewed and carefully
considered.
The court also notes that in some instances the plaintiff
simply cited her entire affidavit or deposition, or all of her
exhibits in support of an assertion that she presented sufficient
evidence to preclude summary judgment. The party opposing summary
judgment is required to identify specific evidence in the record
and to articulate the manner in which that evidence supports a
claim. Rule 56 does not impose on the court a duty to sift through
the record in search of evidence to support the plaintiff’s
opposition to the defendant’s summary judgment motion. See, Adams
v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006); Stults
v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996).

as

to

all

claims

Discrimination

in

brought

by

the

Employment

Act

plaintiff

under

and

Americans

the

the

Age
with

Disabilities Act.
Background
Plaintiff Melissa Kennedy was hired by the defendant in 2007
as a second grade teacher, and was a third grade teacher at the
time of her discharge on April 5, 2012.3

During the 2011-2012

school year, the plaintiff reported to Jill Cowart, who held the
position of assistant headmaster of the elementary division.4 From
2007 until the plaintiff’s termination, Dr. Melanie Ezell was
headmaster of the school.

Ezell, rather than Cowart, had the

authority to make decisions regarding the plaintiff’s employment
that would cause any significant change in benefits, such as
promotion, reassignment or termination.

Cowart reported to and

made recommendations to Ezell.
Certain events beginning in the summer of 2011 through the
2011-2012

school

year

are

relevant

to

the

summary

judgment

analysis.

In June 2011 the plaintiff attended a meeting, held off

the school’s campus, at which two school board members, other

3

This background is not a complete summary of all the events
and facts relevant to the plaintiff’s claims.
The background
included in this section is to provide a general overview of the
case.
4

The previous school year Cowart held the position
academic dean and the plaintiff did not report to her.
2

of

teachers and church members were present.5

At the meeting, the

plaintiff answered questions and shared her concerns and complaints
about Ezell and the school’s current academics, policies and
procedures. Ezell later questioned the plaintiff about the meeting
several times, and each time the plaintiff refused to discuss the
meeting with Ezell.
When the plaintiff signed her contract for the 2011-2012
school year on April 25, 2011, Cowart expressed her concerns about
renewing the plaintiff’s contract.

Cowart stated her reasons were

because of the plaintiff not being a team player, and her conflicts
and inability to get along with her co-workers.6

At the beginning

5

The record contains inconsistent evidence as to the timing
of this meeting. Defendant’s Statement of Uncontested Facts and
Ezell’s affidavit state it was held in the summer of 2010.
Statement Number 8; Ezell affidavit, ¶ 5. However, the plaintiff’s
deposition testimony, the statements of former school board members
Mike Fowler and Bridget Denicola, and an email sent by board member
Leroy J. Laiche, Jr., on June 29, 2011 indicate the meeting was
held in June 2011.
Record document number 36-4, Exhibit 1,
Plaintiff depo., pp. 163-64, 172; record document number 36-16,
Exhibit 13; record document number 36-17, Exhibit 14, Fowler
affidavit, ¶5; record document number 45-32, Exhibit 52, Denicola
depo., p. 36. For purposes of this ruling the court accepts the
evidence that the meeting occurred in June of 2011.
Plaintiff stated in her deposition that she was called and
invited to the meeting by non-board member Lori Smith. According
to Leigh Anne Rhodes testimony, Smith was a former school employee.
Record document number 45-28, Exhibit 48, Rhodes depo., p. 68.
Plaintiff stated that she was never told it was not an official
board meeting. Plaintiff depo., pp. 168-71, 176-77. However, the
plaintiff acknowledged and did not dispute that she refused to
discuss the meeting when Ezell asked her questions about it.
Plaintiff depo., pp. 199-201, 203.
6

There is evidence that the plaintiff disagreed with Cowart’s
(continued...)
3

of the 2011-2012 school year Cowart also met with the plaintiff and
Dona Robertson to express to them her concern about the third grade
teachers’ lack of collaboration and problem solving.7

Throughout

the 2011-2012 school year, conflicts continued among the third
grade teachers. According to the plaintiff, every time Cowart met
with her, including at a meeting on March 16, 2012, Cowart told the
plaintiff that she had concerns about giving the plaintiff a
teaching contract for the following year.8
In November 2011 a student was moved from the plaintiff’s
classroom to another third grade teacher’s classroom.

The student

was moved based on information provided to Cowart from the guidance
counselor and a letter addressed to Cowart from the grandmother of
the student. In March 2012 Cowart also decided to move another

6

(...continued)
definition of “team player,” but there is no dispute that Cowart’s
assessment was the plaintiff was not a team player.
Plaintiff
depo., pp. 54-55.
7

During the 2011-2012 school year Dona Robertson was the
third grade level chairman. Record document number 36-10, Exhibit
7, Robertson affidavit, ¶ 5.
When the plaintiff taught second
grade the plaintiff was a second grade level chairman.
8

Record document number 36-4, Exhibit 1, Plaintiff depo., pp.
196-97. On this point, the plaintiff’s affidavit is inconsistent
with her deposition testimony.
In her affidavit the plaintiff
stated that Cowart did not continually express that she was not
sure she would renew her contract. Record document number 45-10,
Exhibit 30, Plaintiff affidavit, ¶ 3.
To the extent a party’s affidavit contradicts her prior
deposition testimony without explanation, she cannot use it to
create a genuine issue of material fact for trial. Doe v. Dallas
Ind. School Dist., 220 F.3d 380, 386 (5th Cir. 2000); Avina v. JP
Morgan chase Bank, N.S., 413 Fed.Appx. 764 (5th Cir. 2011).
4

student out of the plaintiff’s classroom. Cowart made the decision
based on recent reports from the student’s parents and the student,
including some comments the plaintiff made to the student.9

In the

meeting Cowart had with the plaintiff on March 16, Cowart discussed
the comment and circumstances which led to this student’s transfer
out of her class.

After the meeting, Cowart decided that absent

drastic changes in the plaintiff’s school relationships, she would
not recommend renewing the plaintiff’s contract for the following
school year.
On March 24, 2012 the plaintiff submitted a grievance letter
to Fowler, who was the president of the school board.

Some of the

contentions and requests the plaintiff made in her grievance letter
are summarized as follows: (1) Cowart and Ezell had failed to
provide her with a safe place of work, and the combination of
excessive

workload,

evaluations

and

workplace

harassment

exacerbated her asthma, which at times adversely affected her daily
activities, impeding her “mobility and concentration within the
working environment;” (2) Cowart used intimidation and bullying

9

Through her verified complaint and affidavit, the plaintiff
disputed whether the parents requested that the students be removed
from her class. Plaintiff contends that Cowart stated it was her
decision, without a request from parents, to move the students to
a different teacher’s class. Nevertheless, the plaintiff did not
present any evidence to dispute the information regarding the
students that was received by Cowart, or to dispute that as a
result of receiving that information Cowart moved the students out
of the plaintiff’s class. Therefore, any dispute over whether the
parents requested the move is not a material factual dispute.
5

tactics,

questioned

her

educational

philosophy

and

classroom

decisions without factual support and discussed her in a negative
light with peers and co-workers; (3) Cowart’s harassment led to
mobbing behavior by at least two of her fellow teachers; (4) Ezell
continued to harass, intimidate and bully her into answering
questions about the meeting in the summer held at the library; (5)
Cowart and Ezell’s harassing and intimidating actions posed a
substantial risk of harm to her mental and physical health;10 and,
(6) despite being informed by the plaintiff and others of an
incident that happened between two kindergarten students on the
school playground in March 2012,11 Cowart and Ezell failed to act
promptly and adequately to address the incident to insure the
health and safety of students. Plaintiff also stated in the letter
her belief that she was the target of discrimination due to age,
education

and

work

experience.

In

the

letter,

the

plaintiff

requested that the school board suspend Cowart and Ezell, and
asked that in any future meeting she had with Cowart or Ezell two
or three school board members of her choosing also be present.
On April 3, 2012, Gina McCaughey, the defendant’s director of
human resources, met with the plaintiff about her grievance and

10

Describing the stress caused as a result, the plaintiff
stated in her letter, “I often go about my duties in a state of
autonomy or zombielike state; this is hardly conducive to a safe
working environment.” Record document number 36-8, Exhibit 5.
11

This event is referred to hereafter as the “playground
incident.”
6

told

the

plaintiff

investigated.

how

her

complaints

would

be

handled

and

At that time, based on the health issues stated in

her grievance, McCaughey offered the plaintiff paid medical leave
with full salary for the remainder of the year. Plaintiff rejected
the offer of paid medical leave and told McCaughey she was able to
perform her job duties.

During the meeting the plaintiff told

McCaughey that she refused to meet with Ezell or Cowart for any
reason.12

In an April 5, 2012, meeting with McCaughey and Ezell,

Ezell, who had the

unanimous approval of the school board,

terminated the plaintiff from her employment and tendered her
remaining

contract

salary

for

the

2011-2012

school

year.13

Plaintiff was 43 years of age when she was hired by the defendant,
and was 47 when her teaching contract was terminated.
After her termination, the plaintiff filed this action against
the defendant alleging discrimination, harassment and retaliation
under the Age Discrimination in Employment Act (“ADEA”) and the
Americans With Disabilities Act (“ADA”). 29 U.S.C. § 623(a)(1); 42
U.S.C. § 12112.

Plaintiff alleged that despite her outstanding

employment evaluations, Ezell terminated her contract without cause
on April 5, 2012. Plaintiff claimed that she was terminated because

12

Record document number 36-7, Exhibit 4, McGaughey affidavit,

¶ 5.
13

Record document number 1, Complaint, ¶ 5. Plaintiff had an
approved absence from work on April 4, 2012 because of an earlier
scheduled doctor appointment.
Record document number 36-25,
Exhibit 22; record document number 45-7, Exhibit 17.
7

of her age and on the basis of her disability, as well as in
retaliation for complaining of age and/or disability discrimination
and harassment.

Plaintiff also alleged that she was subjected to

a hostile work environment based on age and disability.

Some of

the harassment alleged in the complaint was as follows:

(1)

plaintiff claimed she was treated differently than her co-workers,
ignored, bullied, isolated and told not to talk during meetings or
given

additional

information

and

responsibilities;
materials

(2)

necessary

plaintiff

to

do

her

was

job;

denied
and

(3)

plaintiff was subjected to excessive evaluation of her classroom
performance.
Defendant moved for summary judgment on all claims alleged by
the plaintiff.

With regard to the age discrimination claim, the

defendant asserted that there is no evidence to support a prima
facie case, or a reasonable inference that but for her age the
plaintiff would not have been terminated.

Defendant argued the

plaintiff cannot show that she was replaced by someone younger or
that

similarly-situated

younger

employees

were

treated

more

favorably, nor can she refute its legitimate, non-discriminatory
reasons for terminating her employment.

Similarly, the defendant

contended

be

that

summary

judgment

must

granted

plaintiff’s claim of disability discrimination.

as

to

the

According to the

defendant, the plaintiff: (1) has no evidence to support the first
essential element of her ADA claim - that she is disabled, has a

8

record of disability or is regarded as disabled; (2) has no
evidence that any non-disabled employee similarly situated to her
received more favorable treatment; and, (3) has no evidence to
dispute

the

legitimate,

non-discriminatory

reasons

for

her

termination.
Defendant argued that the plaintiff’s retaliation claim fails
because

the

plaintiff

cannot

establish

protected activity under the ADA or ADEA.

that

she

engaged

in

Defendant asserted the

plaintiff merely complained generally of harassment, intimidation
and

bullying

in

the

workplace

that

was

unrelated

to

age

or

disability. Defendant argued that even if the plaintiff engaged in
protected activity, the plaintiff has no evidence to dispute the
legitimate reasons and timing of the decision to terminate her
employment.

Therefore, the plaintiff cannot carry her burden of

establishing that she would not have been terminated but for
engaging in protected activity.
Finally, the defendant maintained that summary judgment is
warranted as to any claim the plaintiff alleged based on age or
disability harassment.

Defendant argued the plaintiff cannot show

that any of the harassment she alleges was based on age or
disability, nor can the plaintiff show that the alleged harassment
was severe or pervasive.
In support of its motion the defendant submitted 25 exhibits
consisting of deposition excerpts of the plaintiff and Leigh Ann

9

Rhodes, the affidavits of Cowart, Ezell, McCaughey, Robertson,
Fowler, Laiche, Melissa Samson, Madison Gourney, Carol Garon, and
Joana Dietrich, the plaintiff’s March 24, 2012 grievance letter and
the defendant’s response to the grievance, emails related to the
June 2011 library meeting and moving a student from the plaintiff’s
classroom, school counselor notes of November 16, 2011, March 13,
2012 parent concern form, April 16, 2012 letter from parents, March
16, 2012 meeting notes, a news report, age analysis, record of
plaintiff’s absences for the 2011-2012 school year, and a teacher
observation

schedule.14

Defendant

also

filed

a

Statement

of

Uncontested Material Facts.15
Plaintiff asserted that all aspects of the defendant’s motion
should be denied.

Plaintiff essentially argued that the record

evidence shows that there are genuine, disputed issues of material
fact that can only be resolved by the trier of fact.

Plaintiff

submitted 56 exhibits in opposition to the defendant’s motion.16
Plaintiff also filed a Statement of Contested Material Facts.17
Applicable Law
Summary judgment is only proper when the moving party, in a

14

Record document number 36-3, defendant’s exhibit list.

15

Record document number 36-2.

16

Record document number 45-2, Plaintiff’s Index of Exhibits.

17

Record document number 45-1.
10

properly supported motion, demonstrates that there is no genuine
issue of material fact and that the party is entitled to judgment
as a matter of law.

Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986).

If

the moving party carries its burden under Rule 56(c), the opposing
party must direct the court’s attention to specific evidence in the
record which demonstrates that it can satisfy a reasonable jury
that it is entitled to verdict in its favor.
252, 106 S.Ct. at 2512.
metaphysical

doubt

as

Anderson, 477 U.S. at

This burden is not satisfied by some
to

the

material

facts,

conclusory

allegations, unsubstantiated assertions or only a scintilla of
evidence.
1994).

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

In resolving the motion the court must review all the

evidence and the record taken as a whole in the light most
favorable to the party opposing the motion, and draw all reasonable
inferences in that party’s favor.
S.Ct. at 2513.
the

evidence,

Anderson, 477 U.S. at 255, 106

The court may not make credibility findings, weigh
or

resolve

factual

Sanderson Plumbing Prods., Inc.,
2097, 2110 (2000).

disputes.

Id.;

Reeves

v.

530 U.S. 133, 150, 120 S.Ct.

A genuine issue of material fact exists when

the evidence is such that a reasonable trier of fact could return
a

verdict

for

the

non-moving

party.

Amerisure

Ins.

Co.

v.

Navigators Ins.Co., 611 F.3d 299, 304 (5th Cir. 2010).
On summary judgment, evidence may only be considered to the

11

extent not based on hearsay or other information excludable at
trial.

Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995); Martin

v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987).
The substantive law dictates which facts are material. Canady
v. Bossier Parish School Bd., 240 F.3d 437, 439 (5th Cir. 2001).
In

this

case

the

court

must

apply

the

law

applicable

to

discrimination, retaliation and harassment under the ADA and ADEA.
ADEA Discrimination Claim
Under the ADEA it is unlawful for an employer to fail or
refuse to hire, discharge, or otherwise discriminate against any
individual

because

of

such

individual’s

age.

29

U.S.C.

§

623(a)(1). In employment discrimination cases a plaintiff may rely
on direct or circumstantial evidence or both.

Sandstad v. CB

Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002). The wellestablished McDonnell Douglas18 framework is applied by the Fifth
Circuit to consideration of claims based on circumstantial evidence
brought under the ADEA.19

To establish a prima facie case of age

discrimination, a plaintiff must demonstrate that he or she was:

18

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817 (1973).
19

See, Reeves, 530 U.S. at 141-42, 120 S.Ct. at 2105-06;
Smith v. City of Jackson, Mississippi, 351 F.3d 183, 196 (5th Cir.
2003); Jackson v. CalWestern Packaging Corp., 602 F.3d 374, 378
(5th Cir. 2010).
12

(1) within the protected age group under the ADEA - age 40 and
above; (2) qualified for the position, (3) suffered an adverse
employment decision, and (4) replaced by someone outside the
protected group or someone younger, or treated less favorably than
similarly situated younger employees, or was otherwise discharged
because of his or her age.

West v. Nabors Drilling USA, Inc., 330

F.3d 379, 384 (5th Cir. 2003); Leal v. McHugh, 731 F.3d 405, 410-11
(5th Cir. 2013); Maestas v. Apple, Inc., 546 Fed.Appx. 422 (Cir.
2013).

There must be nearly identical circumstances for employees

to be considered similarly situated.

Berquist v. Washington Mut.

Bank, 500 F.3d 344, 353 (5th Cir. 2007).
A

plaintiff’s

discrimination

prima

that

facie

shifts

case

the

creates

burden

of

an

inference

production

to

of
the

defendant to come forward with evidence that the adverse employment
action was taken for a legitimate, nondiscriminatory reason.

The

burden is one of production, not persuasion, and “can involve no
credibility assessment.”

Reeves, 530 U.S. at 142, 120 S. Ct. at

2106, citing, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509,
113 S.Ct. 2742, 2748 (1993); Crawford v. Formosa Plastics Corp.,
La., 234 F.3d 899, 902 (5th Cir. 2000).
Once the employer articulates a legitimate nondiscriminatory
reason and produces competent summary judgment evidence in support
of it, the inference created by the prima facie case drops out of
the picture.

Russell v. McKinney Hospital Venture, 235 F.3d 219,
13

222

(5th Cir. 2000).

The McDonnell Douglas framework with its

presumptions and burdens disappears, and the only remaining issue
is discrimination vel non. The fact finder must decide the ultimate
question

of

whether

discrimination.
individual

the

plaintiff

has

Id.; Reeves, supra.

disparate

treatment

claim

proven

intentional

A plaintiff bringing an
under

the

ADEA

has

the

ultimate burden of proving that age was the but-for cause of the
challenged adverse employment action.

Gross v. FBL Financial

Services, Inc., 557 U.s. 167, 129 S.Ct. 2343, 2352 (2009).
ADA Discrimination Claim
The ADA prohibits employers from discriminating “against a
qualified individual on the basis of [a] disability in regard to
... [the] discharge of employees, ... and other terms, conditions,
and privileges of employment.” 42 U.S.C. § 12112(a); Neely v. PSEG
Texas,

LTD.

Partnership,

735

F.3d

242

(5th

Cir.

2012).

To

establish a prima facie case of discrimination under the ADA, a
plaintiff must prove that she: (1) has a disability; 2) was
qualified

for

the

job;

and,

(3)

was

subject

to

an

adverse

employment decision on account of her disability. EEOC v. LHC
Group, Inc., ____F.3d____, 2014 WL 7003776 (5th Cir. Dec. 11,
2014), citing, Zenor v. El Paso Cola Co., 176 F.3d 847, 853 (5th
Cir. 1999).20
20

Prior Fifth Circuit cases had stated the elements of a prima
(continued...)
14

The threshold issue in a plaintiff's ADA case is a showing
that she suffers from a disability. Neely, supra; Lanier v. Univ.
of Texas Sw. Med. Ctr., 527 F. App'x 312, 318 (5th Cir.2013)
(citing Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th
Cir.1999) (per curiam)).

Merely having or being diagnosed with an

impairment does not make one disabled for purposes of the ADA, one
must also demonstrate that the impairment limits a major life
activity, and not every impairment will constitute a disability
within the meaning of the ADA.

Mann v. Louisiana High School

Athletic Ass’n, 535 Fed.Appx. 405 (5th Cir. 2013); 29 C.F.R. §
1630.2(j)(ii).
The term disability means, with respect to an individual: (1)
a physical or mental impairment that substantially limits one or
more major life activities of such individual; (2) a record of such
impairment; or (3) being regarded as having such an impairment

42

U.S.C. § 12102(1). Major life activities include, but are not
limited to, caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A).
20

Major life

(...continued)
facie case under the ADA were: (1) plaintiff has a disability; (2)
plaintiff is qualified for the job; (3) plaintiff was subject of an
adverse employment action; and, (4) plaintiff was replaced by a
non-disabled person or treated less favorably than non-disabled
employees. See, Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396
(5th Cir. 1995); EEOC v. LHC Group, supra.
15

activities also include major bodily functions, such as functions
of

the

immune

system,

normal

cell

growth,

digestive,

bowel,

bladder, neurological, brain, respiratory, circulatory, endocrine
and reproduction functions. 42 U.S.C. § 12102(2)(B).
As amended by Congress in 2008, the ADA requires the Court to
construe “[t]he definition of disability ... in favor of broad
coverage of individuals ... to the maximum extent permitted by the
terms of this chapter.” 42 U.S.C. § 12102(4)(A).
most

recent

ADA

regulations

state

that

an

Therefore, the

impairment

is

a

disability within the meaning of the ADA if it substantially limits
the ability of an individual to perform a major life activity as
compared to most people in the general population. However, an
impairment need not prevent, or significantly or severely restrict,
the individual from performing a major life activity in order to be
considered

substantially

individual's

performance

limiting.
of

a

The

major

comparison

of

an

activity

to

the

life

performance of the same life activity by most people in the general
population

usually

will

not

require

scientific,

medical,

or

statistical analysis, and should not demand an extensive analysis.
29 C.F.R. § 1630.2(j)(ii)-(v).

The determination of whether an

impairment substantially limits a major life activity must consider
the

impairment

ameliorative

in

its

1630.2(j)(vi).

effects
In

of

active

state,

mitigating

addition,

after

16

without

measures.
the

2008

regard
29

to

the

C.F.R.

amendments,

§

the

duration or permanence of an impairment is no longer taken into
consideration.

29 C.F.R. § 1630.2(j)(l)(ix); Suggs v. Central Oil

of Baton Rouge, L.L.C., 2014 WL 3037213 (M.D. La. July 3, 2014).
Mitchell v. City of Tupelo, Miss., 2014 WL 4540924, 6-7

(N.D.

Miss., September 11, 2014); Blackard v. Livingston Parish Sewer
Dist., 2014 WL 199629 (M.D. La. January 15, 2014).
Under the ADA as amended, an individual is regarded as
disabled if he or she was subjected to an action prohibited under
the ADA, because of “an actual or perceived” impairment regardless
of whether the impairment is, or is perceived to be, substantially
limiting. 42 U.S.C. § 12102(3)(A); 29 C.F.R. § 1630.2(l)(1)-(3).
Thus, the ADA no longer requires the employer to perceive the
impairment as substantially limiting.

Suggs, supra.

However,

employers may defend against a claim of “regarded as” coverage by
proving the perceived impairment actually is “both transitory and
minor.” 29 C.F.R. § 1630.15(f). Whether the perceived impairment is
transitory and minor is to be determined objectively.

An employer

may not defeat regarded as coverage “simply by demonstrating that
it subjectively believed the impairment was transitory and minor.”
29 C.F.R. § 1630.15(f).
The term “qualified,” with respect to an individual with a
disability, means that the individual satisfies the requisite
skill, experience, education and other job-related requirements of
the employment position the individual holds or desires and, with

17

or without reasonable accommodation, can perform the essential
functions of the position. 42 U.S.C. § 12111(8); 29 C.F.R. §
1630.2(m); Shirley v. Precision Castparts Corp., 726 F.3d 675, 678
(5th Cir. 2013).
If a party establishes a prima facie case of discrimination
under

the

ADA,

courts

then

engage

in

the

McDonnell

Douglas

burden-shifting analysis. McInnis v. Alamo Cmty. Coll. Dist., 207
F.3d

276,

279

(5th

Cir.2000).

That

is,

after

the

plaintiff

establishes a prima facie case of discrimination, the burden shifts
to the employer to articulate a “legitimate, non-discriminatory
reason for the adverse employment action.” McInnis, 207 F.3d at
280. If the employer meets its burden, then the burden returns to
the plaintiff to show that the legitimate nondiscriminatory reason
is simply pretext. Id. (citation omitted). “A prima facie case
coupled with a showing that the proffered reason was pretextual
will usually be sufficient to survive summary judgment.” Hammond v.
Jacobs Field Servs., 499 Fed.Appx. 377, 380–81 (5th Cir.2012) (per
curiam) (unpublished) (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 146–48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)
and EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th
Cir.2009); Owens v. Calhoun County School Dist., 546 Fed.Appx. 445,
448 (5th Cir. 2013).
Under

the

ADA

the

Fifth

Circuit

18

held

in

Pinkerton

v.

Spellings,21

that

the

causation

motivating factor test.
discrimination

need

not

standard

under

the

ADA

is

a

The court explained that under the ADA
be

the

sole

reason

for

the

adverse

employment decision, but must actually play a role in the decision
making process and have a determinative influence on the outcome.
Pinkerton, 529 F.3d at 519, citing, Soledad v. United States
Department of Treasury, 304 F.3d 500, 503-04 (5th Cir. 2002).22
Under the ADA, discrimination also includes failure to make
“reasonable

accommodations

to

the

known

physical

or

mental

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

unless

such

accommodation

covered

would

impose

entity
an

can

undue

demonstrate
hardship.”

42

that

the

U.S.C.

§

12112(b)(5)(A); Feist, supra; Neely, supra. A plaintiff must prove
the

following

statutory

elements

to

prevail

in

a

failure-to-accommodate claim: (1) the plaintiff is a qualified
individual

with

a

disability;

(2)

the

disability

and

its

consequential limitations were known by the covered employer; and

21

529 F.3d 513, 519 (5th Cir. 2008).

22

Based on the Supreme Court decision in Gross, and the change
in language in the ADA from “because of” disability to “on the
basis of disability,” a district court decision from Mississippi,
citing some recent federal appellate court decisions, has stated
that the “but for” causation standard should now be applied in ADA
cases. See, Johnson v. Benton County School Dist., 926 F.Supp.2d
899, 901-04 (N.D. Miss. 2013).
However, the Fifth Circuit has
recently stated that an individual can establish an employer is
liable under the ADA by showing that their disability was a
motivating factor in the employment decision. EEOC v. LHC Group,
Inc., supra.
19

(3) the employer failed to make reasonable accommodations for such
known limitations. Reasonable accommodations are not restricted to
modifications that enable performance of essential job functions.
Id.; 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(1).
ADEA and ADA Retaliation Claims
To establish a prima facie case of retaliation under the ADEA
or ADA, a plaintiff must show: (1) that she engaged in activity
protected by the ADEA or ADA, (2) that an adverse employment action
occurred, and (3) that a causal link existed between the protected
activity and the adverse action. Sherrod v. American Airlines,
Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).

To establish a

retaliation claim under the ADA or ADEA, a plaintiff need not
actually be disabled or a member of a protected class, but rather
must have a reasonable good faith belief that the ADA or ADEA have
been violated.

Id.; Tabatchnik v. Continental Airlines, 262

Fed.Appx. 674 (5th Cir. 2008); Butler v. Exxon Mobil Corp., 838
F.Supp.2d 473, 495 (M.D. La. 2012).

Complaining about unfair

treatment without specifying why the treatment is unfair is not a
protected activity. See, Harris-Childs v. Medco Health Solutions,
169 Fed.Appx. 913 (5th Cir.2006); Tratree v. BP North American
Pipelines, Inc.,

277 Fed.Appx. 390, 395 (5th Cir. 2008).

The causal link required by the third prong of the prima facie
case does not have to meet a “but for” standard.

A plaintiff does

not have to prove that his protected activity was the sole factor
20

motivating the employer’s challenged actions to establish the
causal link element of a prima facie case.
F.3d 342, 345 (5th Cir. 2002).

Gee v. Principi, 289

A plaintiff alleging retaliation

may satisfy the causal connection element by showing close timing
between an employee's protected activity and an adverse action
against him.

McCoy, 492 F.3d at 562. Such temporal proximity must

generally be very close. Feist v. Louisiana, Dept. of Justice,
Office of the Atty. Gen.

730 F.3d 450, 454 -455 (5th Cir. 2013).

If the employee establishes a prima facie case, the burden
shifts to the employer to state a legitimate, non-retaliatory
reason for its decision. After the employer states its reason, the
burden

shifts

back

to

the

employee

to

demonstrate

that

the

employer’s reason is actually a pretext for retaliation, which the
employee accomplishes by showing that the adverse action would not
have occurred “but for” the employer’s retaliatory motive.

Univ.

of Tex. Sw. Med. Ctr. v. Nassar, ____U.S. ____, 133 S.Ct. 2517,
2533 (2013); Feist, 730 F.3d at 454; Sherrod, 132 F.3d at 1122.
Therefore, a plaintiff making an ADEA or ADA retaliation claim must
establish that her protected activity was a but-for cause of the
alleged adverse action by the employer.

This is a more demanding

standard than the motivating-factor standard. Nassar, 133 S.Ct. at
2532-33.
To avoid summary judgment the plaintiff must show “a conflict
in substantial evidence” on the question of whether the employer
21

would not have taken the action “but for” the protected activity.
Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir.1996).
Evidence is substantial if it is of such quality and weight that
reasonable and fair-minded persons in the exercise of impartial
judgment might reach different conclusions.
standing alone, is not enough.

Temporal proximity,

Strong v. Univ. Healthcare Sys.,

L.L.C., 482 F.3d 802, 808 (5th Cir. 2007); Hernandez v. Yellow
Transp., Inc.

670 F.3d 644, 658 (5th Cir. 2012).

ADEA and ADA Harassment Claims
A hostile-work environment, sufficient to give rise to an
action under the ADEA or ADA, exists when the harassment is
sufficiently

pervasive

or

severe

to

alter

the

conditions

employment and create an abusive working environment.

of

Flowers v.

S. Reg'l Physician Servs. Inc., 247 F.3d 229, 235-36 (5th Cir.
2001) (quoting McConathy v. Dr. Pepper/Seven Up Corp., 131 F .3d
558, 563 (5th Cir. 1998)); Dediol v. Best Chevrolet, Inc., 655 F.3d
435, 440 (5th Cir. 2011).

A claim for age-based or disability-

based harassment is modeled after similar claims under Title VII.
Id.; Ballard v. Healthsouth Corp., 147 F.Supp.2d 529, 536 (N.D.
Tex.

2001).

To

succeed

on

this

claim,

a

plaintiff

must

demonstrate: (1) that she belongs to a protected group under the
ADEA and/or ADA - over the age of 40 and/or has a disability ; (2)
that she was subjected to unwelcome harassment; (3) that the

22

harassment complained of was based on her age and/or disability;
(4) that the harassment complained of affected a term, condition,
or privilege of employment; and (5) defendant knew or should have
known of the harassment and failed to take prompt remedial action.
Gowesky v. Singing River Hosp. Systems, 321 F.3d 503, 509 (5th Cir.
2003); Dediol, 655 F.3d at 441.
For harassment to affect a term, condition or privilege of
employment it must be both objectively and subjectively abusive “one that a reasonable person would find hostile or abusive, and
one that the victim in fact did perceive to be so.”

Aryain v. Wal-

Mart Stores Texas LP, 534 F.3d 473, 479 (5th Cir. 2008), citing,
Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275
(1998).

Whether a working environment is objectively hostile or

abusive

is

determined

circumstances.

Courts

discriminatory

conduct;

by

physically

threatening

considering

look
(2)
or

to:
its

(1)

the
the

severity;

humiliating

as

totality

of

the

frequency

of

the

(3)

whether

opposed

to

it
a

is

mere

offensive utterance; (4) whether it unreasonably interferes with an
employee’s work performance, and (5) whether the conduct undermines
the plaintiff’s workplace competence. Hockman, 407 F.3d at 325-26;
Walker v. Thompson, 214 F.3d 615, 625-26 (5th Cir. 2000); Harris v.
Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371 (1993).
Not all harassment will affect the terms, conditions, or
privileges of employment.

The mere utterance of an offensive

23

comment or remark which hurts an employee’s feelings is not
sufficient to affect the conditions of employment. Simple teasing,
offhand comments, and isolated incidents, unless they are extremely
serious, are not sufficient to affect the terms, conditions or
privileges of employment.

Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986).
Analysis
ADEA Discrimination Claim
The defendant does not dispute the first three elements of the
plaintiff’s prima facie case of age discrimination.

Plaintiff was

qualified for her position, and at the age of 47 was in the
protected class of the ADEA when she was discharged on April 5,
2012. However, the defendant argued the plaintiff cannot establish
that she was replaced by someone outside the protected group or
someone younger, or that similarly situated individuals outside the
protected group received more favorable treatment.

Defendant

argued further that the plaintiff cannot refute its legitimate,
non-discriminatory reason for terminating her employment.

With

regard to the “old school” and “old way” comments the plaintiff
claimed were made by Cowart, the defendant asserted that even if
they occurred, the statements were stray remarks not made in
connection with the plaintiff’s termination or by the supervisor
with the authority to make the employment decision.

24

Therefore,

defendant argued, the comments are not direct evidence of age
discrimination, nor are they sufficient to establish that age was
the but-for cause for the plaintff’s termination.
Analysis
demonstrates

of
that

the
the

competent
plaintiff

summary
failed

to

judgment
come

evidence

forward

with

sufficient evidence to create a genuine dispute of material fact
for trial on her claim of age discrimination.23
Contrary to the plaintiff’s arguments, the competent summary
judgment evidence does not support a reasonable inference that the
plaintiff was replaced the following school year by a much younger
teacher.24

McCaughey stated in her affidavit that in the 2011-2012

school year there were five sections of third grade and the
following school year the number of sections was reduced to four.25
Plaintiff did not dispute this evidence, but contended that she was
replaced by a younger teacher because the teacher was hired when

23

In ruling on the defendant’s summary judgment motion and
determining whether there is a genuine dispute for trail, the court
did not consider unauthenticated exhibits, or inadmissible
opinions, speculation and hearsay contained in the depositions,
affidavits, declarations and other exhibits. Even if considered
and credited, the excludable evidence is in large part either
irrelevant, or consists of hearsay, speculation or opinions of nondecisionmakers, and would not change the conclusion that the
plaintiff failed to come forward with sufficient evidence to create
a genuine dispute for trial.
24

Plaintiff stated that the teacher hired was much younger,
but did not state the teacher’s age. Record document number 43-11,
Exhibit 30, Plaintiff affidavit, ¶ 11.
25

Record document number 36-7, Exhibit 4, McCaughey affidavit,

¶ 7.
25

Rhodes, who had taught third grade, was moved to the fourth grade.
Contrary to the plaintiff’s argument, the only reasonable
inference which can be drawn from this evidence is that the younger
teacher hired the next year to teach the third grade replaced
Rhodes after she was moved to the fourth grade. A reasonable trier
of fact could not infer that this teacher replaced the plaintiff,
who was terminated well before the end of the school year when
there were still five sections of third grade.26
Plaintiff

also

relied

on

statements

in

her

Complaint,

affidavit and deposition testimony, as well as the statements of
some parents, teachers and others, that the defendant engaged in a
pattern of replacing older, more experienced teachers with younger,
less experienced teachers.

Such vague and conclusory statements

are not substantiated by any supporting facts, and are insufficient
to

support a reasonable inference that defendant’s motivation for

discharging the plaintiff was because of her age.
In addition, the plaintiff included in her Complaint the names
of numerous individuals over the age of 40 who were terminated and

26

Plaintiff’s statement that Rhodes was moved to the fourth
grade because the number of third grade sections dropped from five
to four is confusing.
Obviously, at the end of the 2011-2012
school year after the plaintiff’s termination there were only four
third grade teachers. At the beginning of the 2012-2013 school
year there were four sections of third grade. Why would Rhodes,
who taught third grade, have to be moved to the fourth grade
because the number of third grade sections dropped? In addition,
if the younger teacher was hired when Rhodes moved to fourth grade,
how can it be that this new teacher was hired to replace the
plaintiff?
26

replaced by younger individuals.

Plaintiff also listed employees

over the age of 40, who worked in different areas of the school elementary, middle and high school, administrative/other - who were
employed during the period from 2007 to 2012.

Plaintiff stated

either their contracts were not renewed or they were otherwise
forced to leave.

Without any facts as to the identity of the

decisionmakers, when the employment decisions occurred, who applied
for

the

job,

or

the

specific

circumstances

that

led

to

the

particular employment decision, there is no basis to find that any
of these employment decisions are relevant or somehow support a
reasonable inference that the defendant decided to terminate the
plaintiff because of her age.

Furthermore, none of this evidence

shows, nor did the plaintiff cite to any specific evidence which
shows, that someone substantially younger or outside the protected
ADEA class was similarly situated to her - engaged in similar
conduct under similar circumstances - and was not discharged or
otherwise received more favorable treatment.
Assuming the plaintiff presented sufficient evidence to support
the elements of her prima facie case, the plaintiff failed to come
forward with sufficient competent summary judgment evidence to
dispute

the

defendant’s

nondiscriminatory

reasons

evidence
for

of

discharging

its
the

legitimate,
plaintiff.

Essentially this evidence is found in the affidavits of Ezell,
Cowart, and McCaughey and several exhibits attached to McCaughey’s

27

affidavit.27

As set forth in these affidavits and exhibits, the

plaintiff was terminated because: (1) throughout the school year
the plaintiff did not work cooperatively and had conflicts with the
other third-grade teachers; (2) at several meetings during the
school year Cowart expressed to the plaintiff her concerns about
renewing her contract because of her lack of ability to get along
with co-workers and not being a team player; (3) during the 20112012 school year issues arose with regard to two of the plaintiff’s
students that resulted in Cowart making a decision to move these
students to another teacher’s classroom; (4) after a meeting with
the plaintiff on March 16, 2012, Cowart decided that absent drastic
changes in the plaintiff’s relationships she would not recommend
renewal of the plaintiff’s contract for the following school year;
(5) the plaintiff submitted a workplace grievance letter on March
24, 2012, which was investigated by McGaughey, and after the
investigation it was determined that the plaintiff’s allegations
were

unsupported

and

that

the

plaintiff

had

engaged

in

unprofessional and insubordinate conduct with regard to her coworkers, the school, and its administrators; and (6), after the
conclusion

of

the

investigation

Ezell

made

the

decision

to

terminate the plaintiff’s employment effective April 5, 2012.

27

Record document number 36-7, Exhibit 4, McCaughey affidavit;
record document number 36-8, Exhibit 6, documents referenced in
McCaughey affidavit related to investigation; record document
number 36-5, Exhibit 2, Cowart affidavit; record document number
36-6, Exhibit 3, Ezell affidavit.
28

Defendant also

submitted uncontradicted evidence that at the

time of the plaintiff was terminated: (1) three of the five third
grade teachers were over the age of 40;28 and (2) in the years 2012
and 2013 there was no change in the number of elementary teachers
over and above the age of 40 - there were 17 teachers below the age
of 40 and 14 teachers above the age of 40.29
Plaintiff submitted a large volume of evidence which she
contends refutes these legitimate, non-discriminatory reasons. For
example, the plaintiff submitted her own affidavit and deposition
testimony, declarations and deposition testimony from some parents,
other

teachers,

member.30

an

administrator,

and

a

former

school

board

The substance of this evidence generally consisted of:

28

Record document number 36-7, McGaughey affidavit, ¶ 7.
Third grade level chairman Robertson stated in her September 2014
affidavit that she was 58 years old.
Therefore, in April 2012
Robertson was either 55 or 56 years old. Record document number
36-10, Exhibit 7, Robertson affidavit, ¶ 4.
29

Record document number 36-7, Exhibit 4, McGaughey affidavit,
¶ 4; record document number 36-24, Exhibit 21.
30

Record document numbers 45-10 and 45-16, Exhibit 30
(including 30a and 36), Plaintiff affidavit; record document number
45-6, Exhibit 12, Plaintiff deposition excerpts; record document
number 45-14, Exhibit 34, Denicola declaration; record document
number 45-21, Exhibit 41, Shan Russel declaration; record document
number 45-26, Exhibit 46, Danna Sabolik deposition; record document
number 45-27, Exhibit 47, Donald Green deposition excerpts; record
document number 45-28, Exhibit 48, Leigh Anne Rhodes deposition
excerpts; record document number 45-29, Exhibit 49, Lori Abshire
deposition excerpts; record document number 45-30, Exhibit 50,
Harold Salles, III deposition excerpts; record document number 4531, Exhibit 51, Tom Walton deposition excerpts; record document
number 45-32, Exhibit 52, Denicola deposition excerpts; record
(continued...)
29

(1) opinions regarding the nature of the conflicts between the
third grade teachers and who was to blame for the conflicts; (2)
opinions of others regarding the plaintiff’s excellent classroom
planning/teaching, and good character; (3) plaintiff’s statements
that Cowart told her on March 16, 2012 the moving of a student out
of the plaintiff’s class was without the parents asking for the
student to be moved; (4) opinions that Cowart and Ezell were
intimidating

and

making

poor

school

policy

and

curriculum

decisions; (5) opinions that Ezell and Cowart failed to properly
investigate and address the playground incident as well as the
plaintiff’s grievances; (6) opinions of some parents, students and
an administrator, who disagreed with the decision to terminate the
plaintiff and the manner in which it was done.
All of the competent summary judgment evidence contained in
these exhibits has been carefully reviewed, and none of it refutes
the legitimate, non-discriminatory reasons the defendant gives for
its adverse employment action against the plaintiff.

Both the

plaintiff and other witnesses acknowledged the ongoing conflicts
and lack of collaboration among the third grade teachers. The fact
that the plaintiff and others have different opinions about how to
characterize the conflict, and who is to blame for the conflict,

30

(...continued)
document number 45-33, Exhibit 53, Tuesdai Johnson declaration;
record document number 45-34, Exhibit 54, Lelia Johnson
declaration; record document number 45-35, Exhibit 55, Ashley
McReynolds declaration.
30

does not dispute the fact that the conflict existed, or that the
plaintiff was counseled and informed by Cowart it was a concern
that might lead to the plaintiff’s termination.

Nor does the fact

that the plaintiff’s was a capable, competent classroom teacher of
good character raise a material factual dispute regarding the
defendant’s legitimate, non-discriminatory reasons. Defendant did
not

contend

or

offer

evidence

that

poor

teaching

skills

or

questionable character were reasons for its decision to discharge
the plaintiff.
In her verified Complaint and affidavit the plaintiff also
disputed Cowart’s statements that the parents had requested the
change when the student was moved out of her class in March 2012.31
Assuming the plaintiff’s statements are true, they do not create a
material factual dispute with regard to the defendant’s legitimate,
non-discriminatory reasons.

Even if there is a factual dispute

over whether the parents made the request, the essential underlying
facts on which Cowart based her decisions remain uncontested.
Moreover,

a

defendant’s

single
multiple

factual
reasons

dispute
does

related

not

amount

to
to

one

of

the

substantial

evidence that the legitimate, nondiscriminatory reasons proffered

31

Record document number 36-5, Exhibit 2, Cowart affidavit,
¶ 13; record document number 45-10, Exhibit 30a, plaintiff’s
response to Cowart affidavit, ¶ 13; record document number 1,
Complaint, ¶ 20.
31

by the defendant were false and a pretext for age discrimination.32
Finally, the personal views of the plaintiff and others, such
as parents, teachers, other school administrators, or school board
members, that Ezell and Cowart were poor administrators who did not
communicate well with teachers, or made poor school policy and
academic decisions that hurt the school, or failed to adequately
handle the playground incident to insure the safety of students, or
should not have fired the plaintiff, or should not have carried it
out in the manner they did, are simply not relevant facts that
dispute the defendant’s legitimate, non-discriminatory reasons for
terminating the plaintiff.
The only other evidence the plaintiff cited was statements she
claimed that Cowart made about her age in early 2012.

Plaintiff

stated in her verified Complaint that in January 2012 Cowart went
into her classroom and “inferred that in plaintiff’s old age, she
needed to take it easy and told plaintiff to stop grading so
much.”33

According to the plaintiff, sometime in 2012 during a

discussion with parents regarding one of her students, Cowart told
the parents:

32

Showing pretext requires a plaintiff to produce substantial
evidence indicating that the proffered legitimate nondiscriminatory
reason is a pretext for discrimination. Laxton v. Gap Inc., 333
F.3d 572, 578 (5th Cir. 2003). A plaintiff must present facts to
rebut each of the nondiscriminatory reasons articulated by the
employer. Id.; Wallace v. Methodist Hosp. System, 271 F.3d 212,
220 (5th Cir. 2001).
33

Record document number 1, Complaint, ¶ 22.
32

[T]hat plaintiff was “old school” and did grades the “old
way,” at which time Cowart dismissed plaintiff’s
authority to grade spelling.
And was told to stop
34
grading so much.
Cowart denied she made the comments, but for purposes of this
motion the court assumes that she did.

Nevertheless, in the

context of the entire summary judgment record, considering these
comments in the light most favorable to the plaintiff, they fail to
create a genuine dispute for trial on the plaintiff’s claim she was
discharged because of her age.35
First, it is not clear from the Complaint that Cowart even
made the statement that “in plaintiff’s old age, she needed to take
it easy.”
statement.

Plaintiff did not allege that Cowart actually made this
Rather, the plaintiff alleged that Cowart “inferred”

it, meaning that the allegation is the plaintiff’s interpretation
of what Cowart said.

Plaintiff’s assertion that Cowart “inferred”

the plaintiff needed to take it easy in her old age is clearly not
the same thing as alleging that Cowart actually said it.

Second,

Ezell terminated the plaintiff and was the final decisionmaker.
Although is it undisputed that Cowart made recommendations to

34

Record document number 1, Complaint, ¶ 20. It is not clear
when this comment was made. It appears from the plaintiff’s EEOC
charge that it was the end of January or the first week of February
2012. Record document number 45-4, Exhibit 5, EEOC charge No. 4612012-01389.
35

Age-related comments that do not constitute direct evidence
of discrimination may be circumstantial evidence used to
demonstrate pretext, or as additional evidence of discrimination.
See, Maestas, supra; Suggs, supra.
33

Ezell, the plaintiff presented no evidence that Ezell merely acted
as a rubber stamp for Cowart’s decisions, or that when Ezell
decided to discharge the plaintiff in April 2012 Cowart was
exerting influence or leverage over Ezell’s decision.36
plaintiff’s

failure

to

present

any

evidence

to

Given the

dispute

the

defendant’s legitimate, nondiscriminatory reasons, or any evidence
that younger, similarly situated individuals not protected under
the ADEA were treated more favorably than her, Cowart’s isolated,
vague and remote comments made two months before Ezell’s decision
are not sufficient for a reasonable trier of fact to infer pretext
and that but for the plaintiff’s age the defendant would not have
terminated the plaintiff’s employment.
ADA Discrimination Claim
Defendant argued that the plaintiff cannot establish the
threshold element of her prima facie case under the ADA - that she
is disabled or was regarded as disabled.

Review of the competent

summary judgment evidence shows that the defendant’s argument has
merit insofar as the plaintiff alleged that the defendant regarded
her as disabled.

However, the record contains sufficient evidence

from which a reasonable trier of fact could find the plaintiff’s
36

Discriminatory animus of a manager can be imputed to the
ultimate decisionmaker if there is evidence the decisionmaker acted
as the rubber stamp or cat’s paw for the manager’s prejudice. The
relevant inquiry is whether the subordinate employee had influence
or leverage over the decisionmaker. See, Laxton, 333 F.3d at 58384; Russell, 235 F.3d at 225-28.
34

asthma is a disability under the current ADA standards.
The parties did not cite the correct law applicable to the
plaintiff’s ADA claim.37
law

section,

the

ADA

As set forth in detail in the applicable
was

amended

in

2008,

resulting

in

a

significant change in the definitions applied to the threshold
issue of whether an individual is disabled under the ADA.

The

purpose of the amendment was to define disability in favor of broad
coverage of individuals.

Among other changes, in determining

whether an impairment substantially limits a major life activity
the impairment in its active state must be considered, without
regard to mitigating measures that reduce the effects of the
impairment or the duration or permanence of an impairment.

An

individual who claims an employer “regarded” her as disabled no
longer is required to prove the employer perceived the impairment
as substantially limiting.38
On the issue of whether the plaintiff was “regarded as”
disabled,

the

defendant

cited

and

relied

on

the

plaintiff’s

deposition testimony, and evidence contained in the affidavits of

37

Record document number 36-1, Memorandum in Support of Motion
for Summary Judgment, pp. 20-22; record document number 45,
Plaintiff’s Memorandum in Opposition to Defendant’s Motion for
Summary Judgment, p. 45.
38

The amended ADA primarily focuses on broadening the
definition of disability by singling out and superseding Sutton v.
United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139 (1999); Toyota
Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.s. 184, 122
S.Ct. 681 (2002). Neely, 735 F.3d at 244.
35

Cowart, Ezell and McCaughey. Plaintiff testified that she believed
she was perceived as disabled because she had to take so much sick
leave.39

Yet, the uncontested evidence shows that in 2010-2011

school year the plaintiff had 28 days of sick leave available and
used 7 days, and in 2011-2012 school year had 29 days available and
by April 5, 2012 had used 12 days.

McGaughey explained that in the

meeting on April 3, 2012 the plaintiff was offered paid leave due
to the health issues the plaintiff included in her March 24
grievance letter, but the plaintiff rejected the offer and stated
she was not disabled and was capable of performing her job duties.40
Cowart and Ezell both attested they did not have any knowledge the
plaintiff used more than her accrued sick leave or had an excessive
number of absences, nor did the plaintiff ever request from them
any accommodation or relief due to an illness or infirmity.41
Plaintiff did not come forward with any evidence to dispute
these facts. Plaintiff merely relies on her subjective belief that
she was perceived as disabled and some deposition testimony from
another third grade teacher who said that she heard a rumor at

39

Record document number 36-4, Exhibit 1, Plaintiff depo., pp.
72-75.
Plaintiff was asked if in 2011 and 2012 she ever told
anyone that she was disabled.
Plaintiff answered: “I don’t go
around talking about that, no.” Id. at 75.
40

Record document number 36-7, Exhibit 4, McGaughey affidavit,
¶¶ 4, 5 and 8; record document number 36-25, Exhibit 22.
41

Record document number 36-5, Exhibit 2, Cowart affidavit,
¶ 22; record document number 36-6, Exhibit 3, Ezell affidavit, ¶ 8.
36

school the plaintiff was on “painkillers or something like that.”42
Plaintiff’s

subjective

belief

is

supported

only

by

hearsay

testimony; her belief clearly does not refute the defendants’s
evidence or create a genuine factual dispute for trial on the
question of whether the defendant regarded her as disabled.
Under

the

amended

ADA

definition

of

disability,

the

ameliorative effects of medication that allow an individual to
perform her job duties and the duration of an impairment are no
longer relevant. Furthermore, to prove an impairment substantially
limits a major life activity, an individual is not required to
demonstrate the impairment prevents or significantly or severely
restricts the performance of a major life activity.43

The record

contains evidence consisting of the plaintiff’s testimony and
statements about her asthma and treatment for asthma and the
effects of the condition and treatment on her ability to breathe.44
Credited and viewed in the light most favorable to the plaintiff,
this evidence would be sufficient for a reasonable trier of fact to

42

Record document number 45-28, Exhibit 48, Rhodes depo., p.

38.
43

Under the amended ADA determining whether an individual is
substantially limited in a major life activity as compared to most
people in the general population, usually will not require an
extensive analysis or scientific, medical or statistical analysis.
29 C.F.R. § 1630.2(j)(ii)-(v).
44

Record document number 36-4, Exhibit 1, Plaintiff depo., pp.
72-75; record document number 36-8, Exhibit 5; record document
number 45-10, Exhibit 30a.
37

find that the asthma impairment, in its active state, substantially
limited the plaintiff’s breathing and respiratory functions as
compared to most people in the general population.
Defendant did not argue that the plaintiff cannot prove the
next two elements of her ADA prima facie case - plaintiff was
qualified for her job and was subject to an adverse employment
action.

Defendant argued, however, that the plaintiff has no

evidence she was replaced by a non-disabled person or treated less
favorably than non-disabled employees.
The summary judgment record supports the defendant’s argument.
As explained in the ADEA analysis, the plaintiff stated in her
affidavit that she was replaced the following school year by a much
younger, non-disabled teacher, but failed to provide facts that
supported this assertion.

Nor did the plaintiff present any

evidence that non-disabled employees who were similarly situated to
her received more favorable treatment from the defendant.
Since the parties filed their memoranda, the Fifth Circuit in
EEOC v. LHC Group has clarified the law governing a prima facie
case when the plaintiff alleges a discriminatory termination in
violation of the ADA.

The court stated that in such cases a

plaintiff is not required to present proof she was replaced by or
treated less favorably than a non-disabled employee.

The court

stated that the third element of the prima facie case is evidence
of a causal nexus - she was subject to an adverse employment action

38

on account of her disability.
Assuming the plaintiff could establish this element of her
prima facie case based on the timing of her termination, the
defendant has produced evidence that the plaintiff was terminated
for

a

legitimate,

disability.

non-discriminatory

reason

unrelated

to

her

This evidence is set forth above in the analysis of

the plaintiff’s ADEA claim.

For the same reasons explained in the

analysis of the ADEA claim, the evidence on which the plaintiff
relies

does

not

dispute

discriminatory reasons.

the

defendant’s

legitimate,

non-

Evidence of a prima facie case, without

evidence to dispute the defendant’s legitimate, nondiscriminatory
reasons, is insufficient for a reasonable trier of fact to find the
defendant’s explanation for terminating the plaintiff is a pretext
for discrimination based on her disability.

Nor is the evidence

sufficient for a reasonable factfinder to conclude that disability
was a motivating factor in the defendant’s adverse employment
decision. It is undisputed, that after the plaintiff submitted her
grievance letter, the plaintiff unequivocally told the defendant
that she was fully capable of performing all of her job duties, and
she did not request any accommodations for her asthma or any other
condition.
dispute

Given these facts and the absence of any evidence to

the

defendant’s

investigation,
approximately

the
two

fact
weeks

legitimate
that

the

after

39

she

reasons

or

plaintiff
filed

her

its

underlying

was

terminated

grievance

is

insufficient evidence from which a reasonable trier of fact could
find that disability was a motivating factor in the plaintiff’s
termination.
To the extent the plaintiff asserted a claim for failure to
accommodate under the ADA, the plaintiff presented no competent
summary judgment to support it.

Plaintiff appeared to argue that

there is a genuine dispute for trial on a failure to accommodate
claim

based

on

whether

the

defendant

provided

reasonable

accommodations and engaged in an interactive process regarding her
request for proper classroom air conditioning.

There is summary

judgment evidence that the plaintiff had to take sick leave in
August 2011 when the air conditioning was not functioning properly
in her classroom.45

However, there is no evidence that when this

incident occurred the plaintiff initiated some interactive process
that the defendant failed to engage in, or that the defendant
denied

the

plaintiff’s

request

for

sick

leave

or

any

other

accommodation.46
ADEA and ADA Retaliation Claims
Defendant argued that the plaintiff cannot establish a prima

45

Record document number 45-10, Exhibit 30a.

46

Plaintiff’s record of absences for 2011-2012 shows the
plaintiff had excused absences for sick leave on August 19 and
August 23, 2011.
Record document number 36-25, Exhibit 22.
Plaintiff did not argue or present any evidence that problems with
the air conditioning in her classroom reoccurred or continued after
August 2011.
40

facie case of retaliation under the ADEA or ADA because her
complaints expressed at the library meeting, in her grievance
letter and in a news report were not protected activity. According
to

the

defendant,

the

plaintiff’s

complaints

can

only

be

characterized as complaints the school was not being properly run
by the administrators and that she was subjected to generalized
bullying, harassment and intimidation.

Defendant argued further

that even if the plaintiff has evidence of a prima facie case, it
is still entitled to summary judgment because the plaintiff has no
evidence to dispute its legitimate, non-retaliatory reasons for
terminating her employment.
Defendant’s

argument

on

this

issue

is

not

persuasive.

Plaintiff’s complaints in her March 24, 2012 grievance letter,
viewed in the light most favorable to the plaintiff,47 are facts
from which a reasonable trier of fact could find that the plaintiff
was complaining that she was being subjected to discrimination or
harassment based on her age and/or disability.48

Nevertheless, the

record demonstrates that the defendant is entitled to summary

47

Plaintiff’s statements in the news report occurred after her
termination, and there is no evidence the plaintiff complained
about age or disability discrimination at the library meeting.
Record document number 35-23, Exhibit 20; record document number
36-17, Exhibit 14, Mike Fowler affidavit, ¶ 5; record document
number 36-4, Plaintiff depo., pp. 166, 170-181.
48

For a retaliation claim under the ADA or ADEA, the plaintiff
is only required to show that she had a reasonable good faith
belief that the employer was engaged in employment practices that
violated the statutes. Tabatchnik, supra; Butler, supra.
41

judgment on the retaliation claims under the ADEA and ADA.
Defendant has come forward with a legitimate, non-retaliatory
reason for terminating the plaintiff, which is the same as the
legitimate, non-discriminatory reasons set forth in the analysis of
the plaintiff’s age and disability discrimination claims. Again,
for the same reasons explained in the analysis of these claims, the
evidence on which the plaintiff relies does not dispute the
defendant’s

legitimate

reasons.

The

only

competent,

relevant

summary judgment evidence the plaintiff presented to support her
retaliation claim is the timing of her termination in relation to
her complaints. Plaintiff’s grievance letter is dated March 24 and
plaintiff was discharged twelve days later on April 5.

However,

this close timing, without sufficient evidence to dispute the
defendant’s legitimate, non-retaliatory reason for the adverse
employment action and show pretext, is not enough evidence for a
reasonable trier of fact to conclude that but for the plaintiff’s
complaints about age and disability discrimination, the plaintiff
would not have been terminated.49
ADEA and ADA Harassment Claim
Defendant argued that summary judgment should be granted as to
49

Sole evidence of close timing, when legitimate, nonretaliatory reasons for employment action are undisputed, is
insufficient evidence to support a finding of retaliation. See,
Roberson v. Alltel Information Services, 373 F.3d 647, 656 (5th
Cir. 2004); Feist, 730 F.3d at 453; Strong v. University Healthcare
System, L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
42

the plaintiff’s age and disability-based harassment claims because
the plaintiff cannot establish that the harassment she complains of
was based on her age or disability, or that it was severe or
pervasive.

Based on a careful review of the competent summary

judgment evidence, the defendant’s arguments are persuasive - no
reasonable trier of fact could find in favor of the plaintiff on
these essential elements of her harassment claims.
Plaintiff testified to her personal belief that the defendant
came

after

her

because

of

her

age

and

disability.

But

no

competent summary judgment evidence contains specific facts which
support a reasonable inference that the plaintiff’s complaints of
harassment, or what the plaintiff also referred to as “bullying,”
was motivated by age or disability discrimination.50

Even if there

were

forward

such

sufficient

facts,

the

evidence

plaintiff

from

which

failed
a

to

come

reasonable

factfinder

with
could

conclude that the harassment was severe or pervasive.
For the purpose of this motion the court accepts that the
plaintiff believed she was harassed through excessive evaluations,
lack of teaching resources, being ignored and isolated in meetings,
not given extra responsibility or committee assignments, being
asked about the library meeting, and being discussed in a negative
light with parents and other teachers. The law requires that work-

50

Record document number 1, Complaint, ¶¶ 19, 33-35; record
document number 36-8, Exhibit 5.
43

place harassment be extreme and affect a term, condition or
privilege of employment.51 To do so it must go beyond behavior that
is rude or offensive; it must be sufficiently pervasive or severe
both objectively and subjectively.

Under the applicable standard,

a reasonable trier of fact could not find that the conduct the
plaintiff complained about was objectively severe or pervasive such
that it altered the terms and conditions of her employment.
The

incidents

alleged

by

the

plaintiff

occurred

over

approximately a two year period.52 Plaintiff testified that she was
excessively evaluated in 2010-2011, but not the following school
year.

Plaintiff did not dispute that some additional evaluations

were required because of the implementation of a new curriculum.
Moreover, the plaintiff acknowledged that all of the evaluations
she received were positive.

Plaintiff also did not dispute that

during the relevant school years other third grade and elementary
teachers had issues regarding lack of resources/books needed for
teaching the curriculum, and that Cowart did not like anyone asking
questions in meetings with her.

None of this conduct, nor any of

the other conduct alleged by the plaintiff, involved actions that

51

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th
Cir. 2012). The Supreme Court has made it clear that conduct must
be extreme to amount to a change in the terms and conditions of
employment. Faragher, 524 U.S. at 788, 118 S.Ct. at 2284.
52

Plaintiff stated in her grievance letter that in 2010-2011
she was evaluated 15 times by administration. Plaintiff stated in
the letter that every one was an “exceptional evaluation.”
44

were physically threatening/humiliating; it was all verbal.53
The evidence as a whole also does not support a reasonable
inference that the alleged conduct prevented the plaintiff from
successfully performing her job as a classroom teacher.

Plaintiff

asserted in her grievance letter various affects on her daily
activities caused by harassment, and she provided evidence of an
incident where she was taken from school to the emergency room in
September 2010.

However, the plaintiff always maintained and

advised the defendant that she was fully capable of performing her
job duties.
number

of

Plaintiff’s record of absences was well below the
days

she

was

allowed

and

her

absences

considered excessive by the school administration.

were

never

Given these

facts and the consistently positive evaluations received by the
plaintiff, a reasonable trier of fact could not find that the
harassment the plaintiff described in any way undermined her
competence or interfered with her job performance.
Conclusion
If the disputed issues to be resolved in this case were who
should be found at fault for the conflicts among the third grade

53

See, record document number 36-4, Exhibit 1, Plaintiff
depo., pp. 53-55, 64, 72-74, 83-86, 201; record document number 3612, Exhibit 9, Rhodes depo., 82, 84-86; record document number 4510, Plaintiff affidavit, ¶¶ 3 and 5; record document number 1,
Complaint, ¶¶ 9, 33-35; record document number 36-26, Exhibit 23,
Deitrich affidavit, ¶¶ 3-5; record document number 36-10, Exhibit
7, Robertson affidavit, ¶¶ 5, 8 and 9; record document number 36-5,
Exhibit 2, Cowart affidavit, ¶¶ 16-20.
45

teachers, or whether Ezell and Cowart’s academic, faculty and other
policy decisions were correct or in the best interest of the
school, then the plaintiff’s evidence would arguably be sufficient
to create a genuine dispute for trial.

However, it is well

established that in discrimination and retaliation cases, the issue
is not whether the employer’s decision was incorrect or unfair.
Instead, the issue is whether the decision was motivated by
unlawful discrimination and retaliation - in this case a decision
based on age or disability in violation of the ADEA and ADA.
the

essential

elements

of

these

claims,

the

analysis

On

above

demonstrates that no reasonable trier of fact could find in favor
of the plaintiff on her claims of discrimination, retaliation and
harassment under the ADEA and ADA.
Accordingly, for these reasons the Motion for Summary Judgment
filed by the defendant Parkview Baptist School is granted.
Baton Rouge, Louisiana, December 24, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

46