Mascarella v. CPlace University SNF, LLC et al

Filing 33

RULING: The 19 Motion for Summary Judgment by Defendant's CPlace University SNF, LLC, d/b/a Affinity Nursing & Rehab Center, CPlace Colonial RC, LLC, d/b/a Colonial Care Retirement Center, and Traditions Senior Management, Inc. is GRANTED, in part and DENIED in part. The 20 Motion for Summary Judgment by Traditions Senior Management, Inc. is DENIED. Signed by Judge Shelly D. Dick on 5/20/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KRISTIE A. MASCARELLA

CIVIL ACTION NO.

VERSUS

13-CV-642-SDD-RLB

CPLACE UNIVERSITY SNF, LLC
d/b/a AFFINITY NURSING & REHAB
CENTER; CPLACE COLONIAL RC, LLC
d/b/a COLONIAL CARE RETIREMENT
CENTER; and TRADITIONS SENIOR
MANAGEMENT, INC.

RULING
This matter is before the Court on the Motions for Summary Judgment1 by
Defendants, CPlace University SNF, LLC, d/b/a Affinity Nursing & Rehab Center
(“Affinity”), CPlace Colonial RC, LLC, d/b/a Colonial Care Retirement Center (“Colonial
Care”), and Traditions Senior Management, Inc. (“Traditions”), collectively the
“Defendants”. Plaintiff Kristie A. Mascarella (“Plaintiff”) has filed Oppositions2 to which
Defendants filed Reply briefs.3

For the following reasons, the Court finds that the

motion by Traditions should be denied, and the motion by all Defendants should be
granted in part and denied in part.
I.

FACTUAL BACKGROUND
Plaintiff in this case suffers from spina bifida and is confined to a wheelchair. It is

undisputed that Plaintiff has a “disability” as defined by the Americans with Disabilities
1

Rec. Doc. Nos. 19 & 20. Traditions Senior Management, Inc. joined in the first motion and filed a
separate motion on the grounds that it claims it was not Plaintiff’s employer and did not hold the
management contract over the co-Defendants during the time of Plaintiff’s employment.
2
Rec. Doc. Nos. 24 & 25.
3
Rec. Doc. Nos. 28 & 29.
1

Act4 (“ADA”) and the Louisiana Employment Discrimination Law5 (“LEDL”).

Plaintiff

began working at Colonial Care in Baton Rouge in August of 2008. On October 31,
2011, CPlace Colonial RC, LLC acquired Colonial Care and became Plaintiff’s
employer, and Plaintiff contends Traditions Senior Management, Inc. (“Traditions”) was
hired to manage the operations.6 During this time, Plaintiff was the Executive Director
of Assisted Living and the head manager of the Assisted Living Facility at Colo9nial
Care.7 Plaintiff’s duties consisted of supervising several employees, making personnel
decisions, interacting with residents, hiring and training PCAs, handling admissions,
maintaining charts for State surveys, handling disciplinary issues with PCAs, and
managing issues with residents and their families.8
Plaintiff boasts an extensive background in healthcare administration. Plaintiff
received her Bachelor’s Degree in healthcare administration in 2006 and completed an
internship at St. Clare Manor nursing home that same year which required the
completion of 170 hours of work.9 Between 2006 and 2008, Plaintiff volunteered at St.
Joseph Hospice for experience.10

In 2012, Plaintiff completed her Administrator in

Training (AIT) study and became a licensed Nursing Home Administrator. She also
obtained her Master’s degree in healthcare administration.11
Plaintiff contends that, without warning, she was demoted to Admissions
Coordinator and transferred to Affinity in March of 2012. At the time of this transfer,

4

42 U.S.C. § 12101 et seq.
La. R.S. 23:301 et seq.
6
Rec. Doc. No. 25-1, pp.6-7 (Deposition of Sheryl Albin, p. 23, lines 24-25 through p. 24, lines 1-2).
7
Rec. Doc. No. 24-2, pp. 24-25 (Deposition of Kristie Mascarella, pp. 32-33).
8
Id.
9
Id. at pp. 26-28 (Deposition of Kristie Mascarella, pp. 34-36).
10
Id.
11
Id. at pp. 28-30 (Deposition of Kristie Mascarella, pp. 36-38).
5

2

Plaintiff contends Affinity was being managed by Traditions.12 Plaintiff contends that
Affinity was a much less desirable facility, that as Admissions Coordinator at Affinity, her
job duties drastically changed in that she no longer had any management or supervisory
responsibility, had little interaction with residents, and had duties limited to
administrative paperwork.13

Plaintiff claims that she was told the company was

“restructuring” and that she was being replaced by a nurse.14

However, Plaintiff

contends that she was not replaced by a nurse; rather, she contends she was replaced
by Kim Vicknair, an employee who lacked any experience managing an assisted living
facility and who was an Admissions employee, not a nurse.15 Vicknair was allegedly
later replaced by Andrea Ford who is also not a nurse.16
Plaintiff maintains that her performance as the Executive Director at Colonial
Care was excellent and that she never received complaints from residents or her
superiors.

Plaintiff claims that, as Colonial Care’s Director of Assisted Living, she

significantly reduced the facility’s number of deficiencies; however, following her
transfer/demotion, she claims that she received numerous complaints from Colonial
Care residents and their families that the facility was being poorly managed since her
departure.17
When Plaintiff began working at Affinity in March 2012, she contends there was
no handicap accessible parking. Although there was a handicap parking space in the
12

Colonial Care and Affinity are owned by to separate LLC’s. CPlace University SNF, LLC does business
as Affinity, whereas CPlace Colonial RC, LLC does business as Colonial Care. The record is not fully
developed regarding the relationship between the LLC’s or the care facilities. However, the summary
judgment evidence reveals that Traditions managed both facilities at relevant time periods.
13
Id. at pp. 41 & 44 (Deposition of Kristie Mascarella, pp. 66 & 72).
14
Id. at p. 36 (Deposition of Kristie Mascarella, p. 61).
15
Id. at p.11 (Deposition of Kristie Mascarella, p. 19). See also Rec. Doc. No. 24-4, p. 12 (Deposition of
Sheryl Albin, p. 35).
16
Id. at p. 13 (Deposition of Sheryl Albin, p. 36).
17
Rec. Doc. No. 24-6 (Declaration of Kristie A. Mascarella).
3

back of the lot painted blue, Plaintiff claims it was not truly handicap accessible because
it was not wide enough to get her wheelchair out of her car.18 Plaintiff contends that she
made repeated requests to her supervisors and managers to provide a handicap
accessible parking space.19 Plaintiff further claims that, eventually, the maintenance
director painted a traditional parking space located in front of the parking lot with blue
lines; however, this did not solve Plaintiff’s problem as the space remained too narrow
to remove her wheelchair from her vehicle and allow her room to maneuver.20 Plaintiff
claims that, on June 1, 2012, several months after her transfer to Affinity and after
several requests for a handicap accessible parking space, there was still no proper
handicap accessible space provided to her. On that date, Plaintiff again requested a
space wide enough to remove her wheelchair from her vehicle. Plaintiff does not know
the exact date but claims that sometime after this June 1, 2012 request, she was finally
accommodated with a handicap accessible parking space.21
Plaintiff further claims that, while at Affinity, she did not have access to a
handicap accessible restroom.

Plaintiff acknowledges that the facility did have a

handicap accessible restroom, but she contends this restroom was for residents rather
than employees, and Plaintiff was not able to use it.22 Plaintiff also contends that, on
her tour of Affinity on her first day at the facility, Vermonica, the Director of Nursing,
advised Plaintiff against using that restroom because of concerns regarding the
resident’s hygiene.23 Some witnesses testified that the resident’s handicap restroom

18

Rec. Doc. No. 24-2, pp. 16-18 (Deposition of Kristie Mascarella, pp. 24-26).
Id. at pp. 7-8 (Deposition of Kristie Mascarella, pp. 14-15).
20
Id. at 17-18 (Deposition of Kristie Mascarella, pp. 25-26).
21
Id. at 17-21 (Deposition of Kristie Mascarella, pp. 25-29).
22
Id. at pp. 49-50 (Deposition of Kristie Mascarella, pp. 80-81).
23
Id.
19

4

was not always clean and was used by residents with communicable diseases.24
Because of the limitations due to her disability, Plaintiff contends she could not stand
and hover over the toilet and would, therefore, have to touch several unclean surfaces
in the residents’ restroom.25 Plaintiff also notes that Directors, nurses, and PCAs had
access to two employee bathrooms not used by residents; however, it is Plaintiff’s belief
that neither of these restrooms were handicap accessible.26
Plaintiff claims that she made requests for a handicap accessible restroom for
her use to several supervisors and managers at Affinity, including RB Bridges, Sheryl
Albin, Wade Canty, and Donna Duplantis.27 With respect to this request, Wade Canty,
one of Plaintiff’s superiors, testified that they “looked into what could be done, but I don’t
recall what other steps were taken.”28

Canty testified that he did not recall if the

situation was ever resolved, and he could not recall ever doing anything in response to
this request.29 Thus, Plaintiff contends that her only real restroom option was to use the
bathroom in her office. Counsel for Plaintiff vividly describes the hardship this placed on
her:
Her wheelchair did not fit through the doorway. [Mascarella declaration].
So every time Mascarella used the bathroom, she had to close her office
door, get undressed in her office, park her wheelchair as close to the toilet
in the doorway as she could, and try to slide down to the toilet from her
wheelchair. [Mascarella declaration]. The toilet was much lower than her
wheelchair, which made it extremely difficult for Mascarella to get back up
to the seat of her wheelchair. [Mascarella declaration]. Mascarella cannot
stand at all, so she had to try and pull herself up with her arms to get back
to the wheelchair. [Mascarella declaration].30
24

Id. at pp. 51-52 (Deposition of Kristie Mascarella, pp. 82-83); Rec. Doc. No. 24-3, pp. 7-8 (Deposition of
Wade Canty, pp. 22-23); Rec. Doc. No. 24-5, p. 12 (Deposition of RB Bridges, p. 53).
25
Id.; Rec. Doc. No. 24-6 (Declaration of Kristie A. Mascarella).
26
Id. at p. 48 (Deposition of Kristie Mascarella, p. 77).
27
Id. at p. 8 & 49 (Deposition of Kristie Mascarella, pp. 15 & 80).
28
Rec. Doc. No. 24-3, p. 9 (Deposition of Wade Canty, p. 24).
29
Id. at pp. 9-10 (Deposition of Wade Canty, pp. 24-25).
30
Rec. Doc. No. 24, p. 6.
5

Plaintiff contends that, when nothing was done to accommodate her restroom
request for a handicap bathroom, she suggested to Canty that she could manage better
with a handicapped toilet, available at Home Depot, which would be taller than a regular
toilet and closer to the level of her wheelchair.31 Plaintiff claims she was told that the
toilet was ordered, but when she asked about it, she was always told “I don’t know” or “I
have to get back with you.”32 Plaintiff contends her restroom accommodation requests
remained unresolved at the time of her termination.
Without warning, Plaintiff was “laid off” on August 8, 2012.33 Plaintiff claims she
was told that the facility was not getting enough admissions to justify a full-time
admissions person.34 Plaintiff further claims that she was never warned that she was
not admitting enough residents, never reprimanded or disciplined for same, and never
warned that her job was in jeopardy for this reason. Subsequently, Plaintiff filed this
lawsuit.
Defendants have moved for summary judgment on all of Plaintiff’s claims arguing
that: (1) Plaintiff’s Louisiana claim regarding her transfer is untimely; (2) Plaintiff cannot
show that her transfer to Affinity was an adverse employment action because she did
not suffer any loss in pay, benefits, or hours, and because her duties were “roughly” the
same;35 (3) Plaintiff cannot establish the prima facie element that she was replaced; (4)
Plaintiff has offered no evidence of pretext for the legitimate nondiscriminatory reasons
for her transfer and layoff; (5) Plaintiff’s accommodation claims are moot because she
was provided a handicap parking space and she had access to a readily accessible
31

Rec. Doc. No. 24-2, pp. 47-48 (Deposition of Kristie Mascarella, pp. 78-79).
Id. at p. 49 (Deposition of Kristie Mascarella, p. 80).
33
Id. at p. 52 (Deposition of Kristie Mascarella, p. 83).
34
Id. at p. 54 (Deposition of Kristie Mascarella, p. 85).
35
Rec. Doc. No. 19-2, p. 5.
32

6

handicap restroom which she chose not to use; (6) Plaintiff fails to show that she was
retaliated against because of her accommodations requests; and (7) Plaintiff fails to
present evidence to support her claim of intentional infliction of emotional distress.
Traditions joined in this motion but also filed a separate motion for summary
judgment arguing that it was never Plaintiff’s employer during the relevant time period
involved in this lawsuit. The Court will address Traditions’ motion first.
II.

LAW AND ANLYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”36 In assessing whether a dispute to any material fact exists, the Court
considers all of the evidence in the record but must refrain from making credibility
determinations or weighing the evidence.37

A party moving for summary judgment

“must ‘demonstrate the absence of a genuine issue of material fact,’ but need not
negate the elements of the nonmovant’s case.”38

If the moving party satisfies its

burden, “the non-moving party must show that summary judgment is inappropriate by
setting ‘forth specific facts showing the existence of a genuine issue concerning every
essential component of its case.’”39 However, the non-moving party’s burden “is not

36

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
38
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (5th Cir. 2003)(quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
39
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
37

7

satisfied with some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”40
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”41 All reasonable factual
inferences are drawn in favor of the nonmoving party.42 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the
summary judgment is required to identify specific evidence in the record and to
articulate precisely how this evidence supports his claim.”43 “Conclusory allegations
unsupported by specific facts … will not prevent the award of summary judgment; ‘the
plaintiff [can]not rest on his allegations … to get to a jury without any “significant
probative evidence tending to support the complaint.”’”44
B. Traditions’ Motion for Summary Judgment
Traditions contends that it was not Plaintiff’s “employer” for purposes of the ADA
during any of the relevant time period in this case. Traditions claims that Louisiana
Management Holdings was the management company engaged by CPlace Colonial
RC, LLC and CPlace University SNF, LLC, not Traditions.45 Traditions further claims
that supervisors and managers RB Bridges, Wade Canty, and Sheryl Albin all worked
for Louisiana Management Holdings during the relevant time frame.46

40

Traditions

Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
41
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
42
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
43
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
44
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
45
Rec. Doc. No. 20-2, p. 3, citing to Statement of Material Facts Not Genuinely In Dispute, Rec. Doc. No.
20-1, ¶¶ 2 & 6.
46
Id., citing to Statement of Material Facts Not Genuinely In Dispute, Rec. Doc. No. 20-1, ¶3.
8

acknowledges that RB Bridges is now the Chief Operating Officer of Traditions but, prior
to this position, Bridges was the regional director of operations and the regional vice
president of Louisiana Management Holdings.47

Traditions contends Plaintiff never

worked for Traditions during the time it held management contracts for CPlace Colonial
or CPlace University;48 thus, it cannot be liable to Plaintiff for the claims asserted.
Plaintiff opposed this motion arguing that Traditions has failed to produce any
evidence setting forth the specific dates that Louisiana Management Holdings was in
control versus the time that Traditions was in control.

Plaintiff also points to the

documents presented by the Defendants in this case which show relevant employment
documents pertaining to Plaintiff on Traditions letterhead.

Specifically, Plaintiff was

issued a Status Change Notice on February 19, 2012, indicating Plaintiff’s change in
pay, and this form shows Traditions’ logo on top of the page.49 Another Status Change
Notice dated March 26, 2012 was issued to Plaintiff with the same Traditions logo at the
top of the page.50 Plaintiff’s final Status Change Notice issued to Plaintiff on August 8,
2012, indicating her layoff, is identical to the previous two notices in every way except
that the logo does not appear on this notice; curiously, no company logo of any kind
appears on this document.51
Plaintiff cited to a number of other exhibits; however, Traditions objected to
several of these exhibits (several of which are screenshots of websites) for lack of

47

Id., citing to Statement of Material Facts Not Genuinely In Dispute, Rec. Doc. No. 20-1, ¶ 5.
Id. at p. 4, citing to Statement of Material Facts Not Genuinely In Dispute, Rec. Doc. No. 20-1, ¶¶ 1, 2,
6, & 7.
49
Rec. Doc. No. 25-2.
50
Rec. Doc. No. 25-4.
51
Rec. Doc. No. 25-5.
48

9

authentication and hearsay. The Court has not considered any of the exhibits to which
Traditions made an objection in deciding this motion.
The law in the Fifth Circuit is clear that, even if a company is not a plaintiff’s
formal employer, it may still be covered under the ADA if it acted as a “joint employer.”52

A company becomes “a joint employer when it, ‘while contracting in good
faith with an otherwise independent company, has retained for itself
sufficient control of the terms and conditions of employment of the
employees who are employed by the other employer.’” Boutin, 730
F.Supp.2d at 680 (quoting Virgo, 30 F.2d at 1360). Because the Fifth
Circuit has not formally defined the control factors to consider, this Court
will follow the approach of at least two district courts in this Circuit and use
the factors set forth by the Second Circuit. See Boutin, 730 F.Supp.2d at
680 (citing AT & T, 67 F.3d at 451); Jones v. TV Minority Co., No. 3:07–
cv–513–WHB–LRA, 2008 WL 4279581, at *4 (S.D.Miss. Sept.11, 2008)
(citing AT & T, 67 F.3d at 451), aff'd sub nom. Jones v. Norfolk S. Co.,
348 F.App'x 970 (5th Cir. 2009) (per curiam). Those five factors are
“whether the alleged joint employer (1) did the hiring and firing; (2) directly
administered any disciplinary procedures; (3) maintained records of hours,
handled the payroll, or provided insurance; (4) directly supervised the
employees; or (5) participated in the collective bargaining process.” AT &
T, 67 F.3d at 451 (citing Clinton's Ditch Coop. Co. v. NLRB, 778 F.2d 132,
138–39 (2d Cir.1985)).53
There is a lack of evidence with respect to some of the factors to be considered;
however, because the Court must view the facts and evidence presented in the light
most favorable to the Plaintiff on this motion, the Court finds that Traditions is not
entitled to summary judgment on this issue. There is ample evidence which reveals
genuine issues of disputed fact regarding the nature and extent of control Traditions
may have had over Plaintiff’s employment.

In its Reply brief, Traditions attempts to

make light of the Status Change Notices issued to Plaintiff under the Traditions logo

52

EEOC v. Valero Refining-Texas, L.P., No. 10-CV-398, 2013 WL 1168620 at *3 (S.D. Tex. Mar. 13,
2013).
53
Id. at *4. This Court will apply the joint employer test for the same reason set forth by the Valero court.
10

calling them “tangential actions … insufficient to establish either a joint employer
relationship or single business enterprise.”54 The Court disagrees.
First, the Court must ask why the Traditions logo appears on earlier Status
Change Notices and not Plaintiff’s final notice if, in fact, Traditions had no connection to
Plaintiff’s employment at any time?

Second, the Traditions logo on documentation

affecting Plaintiff’s employment status, at the very least, suggests possible control and
an overlap in time, both of which are denied by Traditions. Additionally, Traditions
made no attempt to respond to Plaintiff and provide documentation of the actual dates
that Traditions became the management contractor in place of Louisiana Management
Holdings.

Traditions appears to rely completely on the testimony of its employees

Bridges, Albin, and Canty in support of its unequivocal assertion that these employees
“worked for Louisiana Management Holdings during the relevant time frame.”55
However, the actual deposition testimony cited in support of this statement is not so
unequivocal.
RB Bridges testified that he had previously worked for Louisiana Management
Holdings and currently works for Traditions; however, he could not recall how long he
had been with Traditions.56 When specifically asked if Louisiana Management Holdings
and Traditions were related in any way, he responded: “I don’t know the ownership
structure.”57 He likewise did not know who owns Traditions.58 Later in the deposition,
the following exchange took place:

54

Rec. Doc. No. 29, p. 3.
Rec. Doc. No. 20-1, ¶ 1.
56
Rec. Doc. No. 20-3, p. 7 (Deposition of RB Bridges, p. 6).
57
Id.
58
Id.
55

11

Q:
A:
Q:
A:
Q:
A:

Okay. How many employees did Louisiana Management Holdings
have?
I don’t know. I don’t work for them.
Is there any relationship between Louisiana Management Holdings and
Traditions Senior Management?
I don’t know.
Who would know that?
I really don’t know.59

As the Chief Operating Officer of Traditions, Bridges’ answers strain credulity.
The Court cannot make credibility determinations and find facts at the summary
judgment stage; however, Bridges’ testimony along with the employment records
submitted by the parties, show that fact issues exist as to whether Traditions exercised
control of Plaintiff’s employment. The testimony of Canty and Albin likewise supports
this finding.

Canty was asked who employed Plaintiff while at Affinity, and he

responded that he “would have to think Louisiana Management Holdings.”60 When
asked if Traditions ever employed the Plaintiff, Canty responded, “I do not know.”61
Albin testified that Louisiana Management Holdings and Traditions were “the same
people” and clarified this to mean “you know, the same management company. It was
just, I guess, a different way that they structured.”62 When Albin was asked if she knew
whether Plaintiff was ever employed by Traditions, she answered: “I mean, I – I’m
assuming. I can’t speak factual to that.”63
Based on the evidence considered by the Court, it appears that Louisiana
Management Holdings and Traditions may have been sufficiently interrelated to satisfy
the “joint employer” test. The record evidence fails to conclusively establish that the two

59

Id. at p. 17 (Deposition of RB Bridges, p. 36).
Rec. Doc. No. 20-5, p. 7 (Deposition of Wade Canty, p. 16).
61
Id. at p. 8.
62
Rec. Doc. No. 24-4 (Deposition of Sheryl Albin, p. 11).
63
Id. (Deposition of Sheryl Albin, p. 27).
60

12

entities were Plaintiff’s “joint employer”; however, the evidence is collectively adequate
to create a dispute of fact on this issue.

Accordingly, the Motion for Summary

Judgment64 by Traditions is DENIED.
C. Motion for Summary Judgment by All Defendants
1. ADA and LEDL Claims
Plaintiff alleges that her transfer/demotion and ultimate termination violate the
ADA and LEDL. “The ADA is a federal anti-discrimination statute designed to remove
barriers which prevent qualified individuals with disabilities from enjoying the same
employment opportunities that are available to persons without disabilities.”65 Pursuant
to the ADA, “[n]o covered entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation,

job

training,

and

other

terms,

conditions,

and

privileges

of

employment.”66 Louisiana's version of the ADA, the LEDL, provides that an employer
cannot “[d]ischarge or otherwise discriminate against an otherwise qualified disabled
person with respect to compensation or the terms, conditions, or privileges of
employment on the basis of a disability when it is unrelated to the individual's ability to
perform the duties of a particular job or position.”67 Both the ADA and LEDL employ
similar language, and the United States Court of Appeals for the Fifth Circuit has stated
that, when interpreting Louisiana's anti-discrimination laws, it looks to federal

64

Rec. Doc. No. 20.
Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 161 (5th Cir. 1996).
66
42 U.S.C. § 12112(a).
67
La.Rev.Stat. § 23:323(B)(2).
65

13

employment discrimination jurisprudence.68

Plaintiff claims that her demotion/transfer

and termination were discriminatory under the ADA and LEDL, that Defendants failed to
make the reasonable accommodations requested in violation of the ADA and LEDL, and
that her termination was in retaliation for repeated accommodation requests.

The

following claims will be addressed under federal law and jurisprudence interpreting the
ADA. The analysis applies with equal force to Plaintiff’s claims under the LEDL.
a. Discrimination
Plaintiff contends that both her transfer, which she argues was a demotion, and
her ultimate termination were because of her disability. To establish a prima facie case
of disability discrimination, a plaintiff must demonstrate: “(1) that [s]he has a disability;
(2) that [s]he was qualified for the job; [and] (3) that [s]he was subject to an adverse
employment decision on account of h[er] disability.”69
It is undisputed that Plaintiff is disabled within the meaning of the ADA and that
she was qualified for the position. However, Defendants contend Plaintiff has failed to
carry her burden because the transfer did not constitute an adverse employment action,
she was not replaced by anyone, and there is no evidence of pretext for her termination.
1. Plaintiff’s Transfer to Affinity
The parties dispute whether Plaintiff’s transfer to Affinity and change in job title
constituted an adverse employment action.

68

To determine whether an action by an

Baker v. Fedex Ground Package Sys., 278 F. App’x 322, 328 (5th Cir. 2008).
E.E.O.C. v. LHC Group, Inc. 773 F.3d 688, 697 (5th Cir. 2014)(citing Zenor v. El Paso Healthcare
System, Ltd., 176 F.3d 847, 853 (5th Cir. 1999)). Defendants argue the replacement prong in their brief;
however, the Fifth Circuit has removed that prong from a prima facie case of disability discrimination
according to LHC Group.
69

14

employer constitutes an adverse employment action,70 this Court will use “the ‘ultimate
employment decision’ test that [Fifth Circuit] precedents require: ‘[A]dverse employment
actions include only ultimate employment decisions such as hiring, granting leave,
discharging, promoting, or compensating.’”71

The Fifth Circuit has held that “[a]n

employment action that does not affect job duties, compensation, or benefits is not an
adverse employment action under Title VII.”72 An employer's action may constitute an
adverse employment action if it “makes the job objectively worse.”73 Additionally, “[a]
job transfer that includes a shift change that involves changes in duties or compensation
or can be objectively characterized as a demotion may be an adverse employment
action ... .”74 A transfer can be characterized as a demotion when it involves a transfer
from a more prestigious position to a less prestigious one, particularly if the employer
has traditionally used such transfers as a form of discipline or where the new position
involves “significantly different duties.”75 A purely lateral transfer is one that “does not
involve a demotion in form or substance” or that is “[a] transfer involving no reduction in
pay and no more than a minor change in working conditions... .”76
Defendants contend Plaintiff’s transfer from director of assisted living at the
Colonial Care to director of admissions at Affinity was not an adverse employment
action because Plaintiff suffered no loss in pay, benefits, or hours, and they claim her

70

The Fifth Circuit has held that it applies the McDonnell Douglas framework to cases brought under the
ADA; therefore, Title VII precedent interpreting an “adverse employment action” applies to cases brought
under the ADA. McInnis v. Alamo Community College Dist., 207 F.3d 276, 279 (5th Cir. 2000).
71
Watkins v. Paulsen, 332 F. App'x 958, 959–60 (5th Cir. 2009).
72
Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) (internal citations omitted).
73
Hunt, 277 F.3d at 770 (internal citations omitted).
74
Id. (internal citations omitted).
75
Id. (citing Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir.1999); Forsyth v. City of Dallas, 91 F.3d
769, 774 (5th Cir.1996; Click v. Copeland, 970 F.2d 106, 109 (5th Cir.1992)) (emphasis added).
76
Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir.1999) (citing Williams v. Bristol–
Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996)).
15

job responsibilities were “roughly the same.”77 Plaintiff acknowledges that she did not
suffer a loss in pay, but she claims she suffered various substantive losses in all other
aspects of her job. Not only did Plaintiff suffer the parking and restroom problems
described above, she also claims that her job title changed, she was no longer a
supervisor, she was in a less desirable facility, and she was given mostly administrative
paperwork. Plaintiff contends this transfer was more than a minor change in working
conditions.
Based on the record, the Court finds that there is a genuine issue of material fact
in dispute regarding whether Plaintiff’s transfer constituted an adverse employment
action under the law.

Because a reasonable trier-of-fact could find that Plaintiff’s

transfer was a demotion, the Court cannot find that Plaintiff failed to carry her burden on
this element of her prima facie case.

The Court does find, however, that Plaintiff has

failed to present evidence that her transfer to admissions director at Affinity was
“because of” her disability.
Defendants contend that, with respect to the transfer, they made a legitimate
business decision to have a nurse in the position of Director of Assisted Living.
Defendants further contend that this was a non-discriminatory business decision, and it
had nothing to do with Plaintiff’s disability. Further, Defendants argue that the Plaintiff
has failed to rebut the evidence of a legitimate business decision with evidence of
pretext.
Plaintiff counters that the transfer decision was pretextual because Defendants
did not replace her with a nurse as claimed. Plaintiff contends she was replaced as

77

Rec. Doc. No. 19-2, p. 5.
16

Executive Director of Assisted Living by Kim Vicknair, who was not a nurse. Plaintiff
further contends Vicknair was succeeded as Director by another employee who was
also not a nurse. Considering her job qualifications and the excellent job she claims
she was performing, Plaintiff argues there is sufficient evidence of pretext that this
transfer was because of her disability.
At issue here is whether Plaintiff’s transfer was motivated by discriminatory
intent, not whether it was correct from a business, ethical, or personal perspective,78
and there is no evidence that it was. Plaintiff has offered no evidence that her transfer
was related to her disability. All of Plaintiff’s disability accommodation requests and
complaints came after her transfer to Affinity.
A business decision to employ a nurse in the position of Executive Director of
Assisted Living is a legitimate non-discriminatory reason for the Plaintiff’s transfer.
However, whether a nurse actually succeeded the Plaintiff as the Executive Director of
Assisted Living at Colonial Care upon her transfer to Affinity is disputed. If the Plaintiff
was not in fact replaced, as Executive Director of Assisted Living, with a nurse, as the
Defendant’s claim, a reasonable jury could conclude that the Defendants stated reason
for the transfer was pretextual.
2. Plaintiff’s Termination
There is no dispute that Plaintiff’s ultimate termination is an adverse employment
action; however, Defendants contend they have offered a legitimate, non-discriminatory
reason for Plaintiff’s termination. The Defendants contend that Plaintiff’s position was
eliminated due to low admissions. Plaintiff offers as pretext evidence her numerous,
78

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)(“[An employer] is entitled to be
unreasonable so long as it does not act with discriminatory animus”); see also Mayberry v. Vought Aircraft
Co., 55 F.3d 1086, 1091 (5th Cir. 1995).
17

and allegedly ignored, requests for accommodations, the different treatment she
received as compared to other employees, and the fact that she was never warned
about low admissions or given the opportunity to increase admissions to save her job.
The Court finds the Plaintiff has offered sufficient evidence of pretext for her
termination. It is for the trier of fact to determine whether Plaintiff’s accommodation
requests were adequately addressed by the Defendants, and whether their decision to
terminate Plaintiff was related to her disability. The Court also finds that Plaintiff has
shown evidence of pretext because there is no evidence before the Court that Plaintiff
had been performing negatively in her position or was ever warned or otherwise
counseled that if admissions continued to decline, her position was in jeopardy.
Particularly troubling is the testimony of Canty, when asked if he believed Plaintiff was
discriminated against because of her disability, he responded: “That, I don’t know.”79
Canty was asked if it was his opinion that Plaintiff was subjected to disability
discrimination, and he responded: “I mean, honestly, I really – I don’t – I don’t have an
opinion one way or the other on that.”80

This question should be resolved by a jury.

The Court finds that Plaintiff has presented a genuine issue of material fact as to the
Defendants’ motivation in terminating her employment, and this matter is inappropriate
for resolution on summary judgment.
b. Accommodation Claim
Plaintiff also claims that the Defendants failed to accommodate her disability as
required by the ADA. Defendants have moved for summary judgment on this claim
arguing that Plaintiff’s accommodation claim is moot because it is undisputed that

79
80

Rec. Doc. No. 24-3, pp. 11-12 (Deposition of Wade Canty, pp. 26-27).
Id. at p. 13 (Deposition of Wade Canty, pp. 28).
18

Plaintiff was provided a handicap parking spot at Affinity, and it is undisputed that
Plaintiff had access to a wheelchair accessible bathroom at Affinity but chose not to use
it. Because material factual disputes abound on this issue, summary judgment is not
proper on the accommodation claim.
The ADA provides that “[n]o covered entity shall discriminate against a qualified
individual with a disability because of the disability....”81

The term “discriminate”

includes “not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability ... unless such covered
entity can demonstrate that the accommodation would impose an undue hardship on
the operation of the business of such covered entity.”82 The ADA defines “qualified
individual with a disability” as “an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.”83 “Reasonable accommodation” may
include “job restructuring, part-time or modified work schedules....”84

The “undue

hardship” analysis requires courts to consider factors including “the nature and cost of
the accommodation;” the size of the facility and the business entity involved in terms of
financial resources, personnel, and geography; and the type of operations including
composition, structure, and function.85
“Once an employee makes a request for reasonable accommodations, the
employer is obligated by law to engage in an ‘interactive process' or ‘a meaningful

81

42 U.S.C. § 12112(a).
Id. at § 12112(b)(5)(A).
83
Id. at § 12111(8).
84
Id. at § 12111(9)(B).
85
Id. at § 12111(10)(B).
82

19

dialogue with the employee to find the best means of accommodating that disability.”86
In order to prove a claim of discrimination under the ADA, a plaintiff must satisfy the
elements of 42 U.S.C. § 12112(b)(5): (1) she had a disability; (2) she was qualified for
the job; (3) her employer knew of the disability; (4) she requested an accommodation;
(5) a reasonable accommodation existed that would have allowed her to perform the
essential functions of the job; and (6) her employer failed to provide a reasonable
accommodation.87
There is no dispute that (1) through (5) set forth above have been satisfied. The
parties dispute whether Defendants failed to provide Plaintiff a reasonable
accommodation. Also disputed is whether Defendants properly engaged in the required
interactive process to determine the appropriate accommodations.
A “reasonable accommodation” is not necessarily “the employee's preferred
accommodation.”88 Instead, the accommodation need only “meet the job-related needs
of the individual being accommodated.”89 The employer has the final say and is free to
“choose the less expensive accommodation or the accommodation that is easier for it to
provide.”90

Employees and employers “should engage in flexible, interactive

discussions to determine the appropriate accommodation.”91 The “responsibility for the
interactive process is shared.”92 “When an employer's unwillingness to engage in a

86

Tribble v. Ouachita Parish Police Jury, 939 F.Supp.2d 626, 632, 2013 WL 1411810, at *5 (W.D. La.
2013)(citing E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009)).
87
42 U.S.C. § 12112(b)(5)(A); Heard v. United Parcel Service, Inc., No. 09–1950, 2012 WL 399213, at *8
(W.D.LA. Feb. 7, 2012); Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996); Burch v. Coca–
Cola Co., 199 F.3d 305, 315 (5th Cir. 1997).
88
E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009) (citing Hendrick v. Western
Reserve Care System, 355 F.3d 555, 457 (6th Cir. 2004)).
89
Id. (quoting 29 C.F.R. pt. 1630, App., § 1630.9).
90
Id.
91
E.E.O.C., supra., at 471.
92
Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999).
20

good faith interactive process leads to a failure to reasonably accommodate an
employee, the employer violates the ADA.”93 By the same token, if the process breaks
down because of an employee's action, “an employer cannot be found to have violated
the ADA.”94
Defendants maintain that Plaintiff has no accommodation claim because she was
provided with a handicap parking spot at Affinity which was widened to accommodate
her vehicle. Plaintiff concedes that she was eventually provided a handicap space, but
she claims that it was after several months of repeated requests. This Court has held
that a delay in providing a reasonable accommodation under the ADA can constitute a
failure to accommodate: “[O]nce an employee makes a request for an accommodation,
the employer is required to engage in the interactive process, and ‘[a] party that
obstructs or delays the interactive process is not acting in good faith.’”95 Although a two
month delay is not unreasonable as a matter of law, the Court finds that, based on the
circumstances surrounding the requests, Plaintiff has demonstrated a genuine issue of
material fact as to whether Defendants engaged in the interactive process in good faith.
The issues of timeliness and good faith are questions for the jury to decide.
The Court also finds that disputed material facts exist regarding Plaintiff’s access
to a handicap restroom.

Defendants contend that Plaintiff is procedurally barred from

93

Id.
Id.
95
Schilling v. Louisiana DOTD, No. 12-661, 2014 WL 3721959 at * 9 (M.D. La. July 28, 2014)(quoting
Manthos v. Jefferson Parish, 2008 WL 3914988, at *6 (E.D.La. Aug. 21, 2008)(quoting Beck v. Univ. of
Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996)). See also, Loulseged v. Akzo Nobel Inc., 178
F.3d 731, n. 6 (5th Cir.1999) (“The panel in Beck noted that a party ‘that obstructs or delays the
interactive process' may be charged with its breakdown. In Beck and many employment cases, the
employee continues working in a capacity arguably needing accommodation while the interactive process
is ongoing. An employer that dragged its feet in that situation could force the employee to work under
suboptimal conditions, ‘simply document the employee's failures,’ and use the employee's difficulties as
an excuse to terminate her.”(internal citations omitted)).
94

21

making this argument because they claim that her Declaration, which states that she
could not use the public bathroom, “directly contradicts, without explanation”96 Plaintiff’s
deposition testimony that the handicapped public restroom was available to her, but she
chose not to use it. This statement is a disingenuous overgeneralization of Plaintiff’s
testimony and declaration. Moreover, Plaintiff’s contention that she could not use the
public restroom was not “without explanation,” as she clearly detailed why she believed
that it was unsafe for her to do so.

Plaintiff’s belief that she “could not use” this

restroom is buttressed by her testimony that she was told on her first day at Affinity by
Affinity’s Director of Nursing that she did not recommend Plaintiff using this restroom
because of the potential cleanliness/disease issues.97 Furthermore, Defendants cite the
following law in their Opposition: “A reasonable accommodation is defined as ‘making
existing facilities used by employees readily accessible to and usable by individuals
with disabilities.’”98 The handicap accessible restroom Defendants expected Plaintiff to
use was not “used by employees” but rather was used by the residents. It is undisputed
that employees at Affinity had separate restroom facilities. Additionally, the evidence in
the record shows that Plaintiff made requests for a portable toilet, available at Home
Depot, which was arguably a lesser burden and expense than reconstructing an existing
restroom; however, this request appears to have been ignored.

For a myriad of

reasons, the Court finds that a rational trier of fact could find that the accommodation
provided to Plaintiff was not reasonable under the law and facts of this case.
Defendants are not entitled to summary judgment on Plaintiff’s failure to accommodate
claim.
96

Rec. Doc. No. 28, p. 2.
Rec. Doc. No. 24-2, p. 51 (Deposition of Kristie Mascarella, p. 82).
98
Rec. Doc. No. 19-2, p. 7, quoting 42 U.S.C. § 1211(9)(A) (emphasis added).
97

22

2. Retaliation Under the ADA
Defendants also move for summary dismissal of Plaintiff’s ADA retaliation claim.
To establish a prima facie case of retaliation under the ADA or Title VII, a plaintiff must
show that:

(1) she participated in an activity protected under the statute; (2) her

employer took an adverse employment action against her; and (3) a causal connection
exists between the protected activity and the adverse action.99

“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,”100 which the employee accomplishes by showing that the
adverse action would not have occurred “but for” the employer's retaliatory motive.101 In
order to avoid summary judgment, the plaintiff must show “a conflict in substantial
evidence” on the question of whether the employer would not have taken the action “but
for” the protected activity.102
A plaintiff alleging retaliation may satisfy the causal connection element by
showing “[c]lose timing between an employee's protected activity and an adverse action
against him.”103 Such temporal proximity must generally be “very close.”104 While there
is no bright line rule, this Court has found, for example, that “a time lapse of up to four

99

Feist v. Louisiana, Dept. of Justice, Office of the Attorney General, 730 F.3d 450, 454 (5th Cir.
2013)(citing McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007) (Title VII); Seaman v.
CSPH, Inc., 179 F.3d 297, 301 (5th Cir.1999)). (ADA).
100
Id., quoting LeMaire v. Louisiana, 480 F.3d 383, 388–89 (5th Cir. 2007) (internal citation omitted).
101
Id., quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, –––U.S. ––––, 133 S.Ct. 2517, 2533, 186 L.Ed.2d
503 (2013) (Title VII); Seaman, 179 F.3d at 301 (ADA).
102
Id., quoting Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996) (internal quotation marks
omitted).
103
Id., quoting McCoy, 492 F.3d at 562.
104
Id., quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74, 121 S.Ct. 1508, 149 L.Ed.2d 509
(2001).
23

months” may be sufficiently close,105 while a five month lapse is not close enough
without other evidence of retaliation.106 Such evidence may include an employment
record that does not support dismissal, or an employer's departure from typical policies
and procedures.107
There is no dispute that Plaintiff has established the first two elements of her
prima facie case. Defendants contend, however, that Plaintiff cannot establish a causal
connection between her termination and her requests for accommodation because they
met Plaintiff’s requests with reasonable accommodations.

Defendants offer the

reduction in force as the legitimate, non-discriminatory reason for her termination and
argue that Plaintiff has no evidence of pretext for this decision.
For the same reasons discussed above regarding Plaintiff’s discrimination and
failure to accommodate claims, the Court finds that there are disputed fact issues which
preclude summary judgment in favor of the Defendant on the retaliation claim. Plaintiff’s
termination did come in close proximity to her protected activity, i.e., continued requests
for an appropriate handicap restroom which arguably remained unresolved at the time
of her termination. Plaintiff has offered uncontested evidence that she was a good, if
not excellent, employee and that she was never warned or counseled that she needed
to increase admissions to avoid a possible layoff. There is sufficient evidence in the
record from which a reasonable trier of fact could find that Plaintiff’s termination was in
retaliation for her accommodation requests/complaints. Summary judgment is denied
on this issue.

105

Id., quoting Evans v. Houston, 246 F.3d 344, 354 (5th Cir. 2001).
Id., citing Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002).
107
Id. at 454-455, citing Schroeder v. Greater New Orleans Fed. Credit Union, 664 F.3d 1016, 1024 (5th
Cir. 2011).
106

24

3. Transfer Claim under the LEDL & IIED
Defendants also moved for summary judgment on Plaintiff’s transfer/demotion
claim under the LEDL and Plaintiff’s alleged intentional infliction of emotional distress
(“IIED”) claim.108 Defendants contend that Plaintiff’s transfer claim under the LEDL is
prescribed and that she has failed to carry her burden on the IIED claim. Plaintiff failed
entirely to address or respond to these issues in her Opposition. Plaintiff’s failure to
offer any argument or jurisprudence to dispute the Defendants' arguments on these
issues is fatal to these particular claims. In the Fifth Circuit, arguments not raised in
opposition to a motion are waived.109 Summary judgment in favor of the Defendants is
granted as to these specific claims.

108

Plaintiff’s Complaint does not set forth a claim for intentional infliction of emotional distress under
Louisiana law; she does claim that the Defendants acted with “malice and reckless indifference” to her
rights (¶ 19), and she does seek compensatory damages for “severe emotional and mental anguish,
anxiety, depression, humiliation…” (¶ 20). The Court does not read this request for compensatory
damages as an IIED claim but addressed it as set forth above out of an abundance of caution. However,
Plaintiff is not required to plead an IIED claim to recover compensatory damages for emotional distress or
mental anguish. “To recover emotional distress damages, a plaintiff must show specific evidence of
emotional distress.” Cherry v. Shaw Costal, Inc., 2012 WL 5364228, at *5 (M.D. La. Oct. 31,
2012)(quoting Giles v. General Elec. Co., 245 F.3d 474, 488 (5th Cir. 2001)). While a plaintiff must have
“more than vague allegations to establish existence of the injury,” Id., a plaintiff is not required to have
corroborating testimony, and plaintiff’s own testimony “may be sufficient to prove mental damage but only
if the testimony is ‘particularized and extensive’ enough to meet the specificity requirement.” Hitt v.
Connell, 301 F.3d 240, 250-51 (5th Cir. 2002)(citation omitted).
109
See Texas Commercial Energy v. TXU Energy, Inc., 413 F.3d 503, 510 (5th Cir. 2005)(citing Norton v.
Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004).
25

III.

CONCLUSION
For the reasons set forth above, the Motion for Summary Judgment110 by

Defendants, CPlace University SNF, LLC, d/b/a Affinity Nursing & Rehab Center,
CPlace Colonial RC, LLC, d/b/a Colonial Care Retirement Center, and Traditions Senior
Management, Inc. is GRANTED, in part and DENIED in part. The Motion for Summary
Judgment111 by Traditions Senior Management, Inc. is DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on May 20, 2015.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

110
111

Rec. Doc. No. 19.
Rec. Doc. No. 20.
26