Smith v. Board of Supervisors Southern University and A&M College
Filing
20
RULING granting 12 Motion for Summary Judgment. Signed by Judge James J. Brady on 01/12/2016. (ELW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FRANCES R. SMITH
CIVIL ACTION
VERSUS
NO. 14-572-JJB-RLB
BOARD OF SUPERVISORS FOR
SOUTHERN UNIVERSITY, ET AL.
RULING ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment (Doc. 12) brought by
Defendants, Board of Supervisors for Southern University (“Board”) and A&M College System
(collectively referred to as “defendants”). Plaintiff, Frances Smith (“Smith”), filed an opposition
(Doc. 17) and the defendants filed a reply brief (Doc. 18). Oral argument is unnecessary. The
Court’s jurisdiction exists pursuant to 28 U.S.C. § 1331. For the reasons stated herein, the
defendants’ Motion for Summary Judgment (Doc. 12) is GRANTED.
I.
BACKGROUND
The summary judgment evidence establishes that at all relevant times Smith was
employed by the Southern University System (“SUS”), Office of the President, as the Special
Assistant and Counselor to the President. In this position, Smith performed several tasks
including providing legal counsel to the President of the University System. From 2005 to 2009,
Ralph Slaughter (“Slaughter”) served as the SUS President.
In 2007, Slaughter requested advice from Smith regarding alleged sexual harassment of
an SUS employee by a Board member. Specifically, Slaughter wanted to know whether
Southern’s sexual harassment policy required him to report the allegations and, if so, to whom.
According to Smith, she informed Slaughter that he should report the allegations to “a level
where somebody can do something about it . . . .” Smith Dep. 76:7–13, Doc. 17-2.
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In 2007, Slaughter was involved in Title VII litigation (“2007 Slaughter litigation”)
against the Board relating to Slaughter reporting the alleged sexual harassment. After being
subpoenaed, Smith testified at the preliminary injunction hearing about the conversation with
Slaughter advising him on Southern’s policies for reporting sexual harassment allegations. Two
years later, in 2009, the Board elected not to renew Slaughter’s contract as the SUS President,
and appointed Kassie Freeman (“Freeman”) as SUS’s interim President. After beginning her
term, Freeman learned of budget cuts affecting SUS and began formulating a Reorganization
Plan to help deal with the budget reductions. The Reorganization Plan called for several
personnel cuts and changes.
After testifying in the 2007 Slaughter litigation, Smith retained her position at Southern
for two years. During this time period Smith received two pay raises. On August 22, 2009, the
Board approved the Reorganization Plan which included, among other things, the elimination of
Smith’s position as Special Assistant and Counsel to the President. The Reorganization Plan also
changed the title and duties of Smith’s position to the newly created position of Executive
Counsel. Hired in the new position was 47 year old Tracie Woods (“Woods”). Smith was 64
years old when she was terminated.
Smith filed this case alleging retaliation under Title VII of the Civil Rights Act of 1964
for testifying in the 2007 Slaughter litigation, and alternatively, age discrimination under the Age
Discrimination in Employment Act (“ADEA”). Defendants now bring the present motion
arguing that they are entitled to summary judgment on all of Smith’s claims.
II.
SUMMARY JUDGMENT STANDARD
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Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact.” Fed. R. Civ. P. 56(a). The party seeking summary judgment
carries the burden of demonstrating that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the burden at
trial rests on the non-moving party, the moving party need only demonstrate that the record lacks
sufficient evidentiary support for the non-moving party’s case. Id. The moving party may do
this by showing that the evidence is insufficient to prove the existence of one or more essential
elements of the non-moving party’s case. Id. A party must support its summary judgment
position by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).
Although the Court considers evidence in a light most favorable to the non-moving party,
the non-moving party must show that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248–49 (1986). Conclusory allegations and unsubstantiated
assertions will not satisfy the non-moving party’s burden. Grimes v. Tex. Dep’t of Mental
Health, 102 F.3d 137, 139–40 (5th Cir. 1996). Similarly, “[u]nsworn pleadings, memoranda or
the like are not, of course, competent summary judgment evidence.” Larry v. White, 929 F.2d
206, 211 n.12 (5th Cir. 1991). If, once the non-moving party has been given the opportunity to
raise a genuine fact issue, no reasonable juror could find for the non-moving party, summary
judgment will be granted for the moving party. Celotex, 477 U.S. at 322–23.
III.
DISCUSSION
In regards to Smith’s Title VII retaliation claim, the defendants argue two bases for
granting summary judgment: (1) Smith’s testimony in the 2007 Slaughter litigation does not
constitute a Title VII protected activity; and (2) there is no causal connection between Smith’s
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2007 testimony and her 2009 termination. Defs.’ Supp. Mem., Doc. 12-9. Smith responds by
asserting that her 2007 testimony is a Title VII protected activity and the causal element can be
established by direct evidence of retaliatory animus. Pl.’s Opp’n, Doc. 17.
On Smith’s age discrimination claim, the defendants argue that summary judgment
should be granted because Smith’s subjective belief of discrimination is insufficient to establish
a prima facie case under the ADEA. Defs.’ Supp. Mem. 18–19, Doc. 12-9. Smith argues that a
prima facie case has been demonstrated, but the defendants have failed to meet their burden of
providing a legitimate, non-discriminatory reason for her termination. Pl.’s Opp’n 11–14, Doc.
17. Alternatively, Smith argues that the defendants’ proffered reasons for termination are pretext.
Id.
a. Title VII Retaliation
A prima facie case for retaliation requires the plaintiff to show that (1) she participated in
a protected activity, (2) she suffered an adverse employment action by her employer, and (3)
there is a causal connection between the protected activity and the adverse action. Stewart v.
Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009). If the plaintiff cannot support all three
elements, then summary judgment for the defendant is appropriate. Id. Here, it is undisputed that
Smith’s termination constitutes an adverse employment action. The parties dispute whether
Smith’s testimony in the 2007 Slaughter litigation is a Title VII protected activity and, if so,
whether Smith can establish the required causation between that activity and her termination.
i. Protected Activity
Concerning a “protected activity,” Title VII states:
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It shall be an unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has opposed any practice made an
unlawful employment practice by [Title VII], or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under [Title VII].
42 U.S.C. § 3000(3)-3 (emphasis added). Accordingly, there are two clauses under which an
activity can be deemed “protected” for purposes of Title VII—the opposition clause and the
participation clause. See Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304 (6th
Cir. 1989). At issue in this case is the participation clause.
The participation clause itself has been interpreted as providing two separate avenues for
coverage: (1) making a charge; and (2) testifying, assisting, or participating in any manner in an
investigation, proceeding, or hearing. USEEOC v. Bojangles Restaurant, Inc., 284 F. Supp. 2d
320, 327–28 (M.D.N.C. 2003) (citing Booker, 879 F.2d at 1312)). The second prong in the
participation clause provides coverage for a broad array of activities, including “persons who
assist other persons who directly engage in protected activity.” Id. at 327–29. “Assist,” in this
context, “means providing voluntary or involuntary support in any manner to a person the
employer believes to have engaged, or fears will be engaging, in protected activity.” Id. at 329.
Moreover, “[t]he assistance may, but need not, be actual assistance so long as it is proven that the
employer perceives that assistance was or will be given . . . .” Id.; see, e.g., Johnston v. Harris
Cty. Flood Control Dist., 869 F.2d 1565 (5th Cir. 1989) (affirming the district court’s finding of
liability under Title VII when the plaintiff was retaliated against for testifying in a co-worker’s
EEO hearing); Shoaf v. Kimberly-Clark Corp., 294 F. Supp. 746, 756 (M.D.N.C. 2003) (holding,
for purposes of summary judgment, that “Plaintiff has established that he engaged in a protected
activity under Title VII by testifying on behalf of [co-worker] prior to Plaintiff’s discharge from
employment”).
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The fact surrounding Smith’s testimony in the 2007 Slaughter litigation are undisputed
and it is therefore appropriate for the Court to determine, as a matter of law, whether such
testimony constitutes a Title VII protected activity. The defendants spent considerable time
arguing that Smith’s 2007 testimony does not constitute a protected activity because she did not
“oppose” any illegal practices, as that term has been defined. Defs.’ Supp. Mem. 9–13, Doc. 129. However, due to the dual nature of the statute, the plaintiff’s actions need not have opposed an
unlawful action of the defendant if such actions demonstrate that the plaintiff participated in any
manner in a proceeding under Title VII. Therefore, despite the defendants’ contentions, this case
involves a claim for retaliation under the participation clause, not the opposition clause.
Therefore, the relevant inquiry is whether Smith “testif[ied], assist[ed], or participat[ed] in any
manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 3000(3)-3
(emphasis added). It is undisputed that Smith testified in Slaughter’s Title VII litigation. Such
testimony falls under the expansive purview of the participation clause. Therefore, as a matter of
law, the Court finds that Smith’s testimony in the 2007 Slaughter litigation constitutes a Title VII
protected activity. 1
The defendants argue that Smith’s testimony in the 2007 Slaughter litigation was solely a function of her duties as
legal counsel to the President (i.e. Slaughter) and therefore does not constitute a protected activity under the Fifth
Circuit’s “Manager Rule.” Defs.’ Supp. Mem. 10, Doc. 12-9. The Fifth Circuit has recognized, in the context of the
Fair Labor Standards Act (“FLSA”), “that an employee’s communication does not constitute a complaint unless the
employee ‘somehow steps outside of his normal job role’ so as to make clear to the employee that the employee is
‘taking a position adverse to the employer.’” Lasater v. Texas A&M University-Commerce, 495 Fed. Appx. 458,
461–62 (5th Cir. 2012) (citations omitted) (emphasis added). This rule is especially important in the context of
managers “because a managerial position ‘necessarily involves being mindful of the needs and concerns of both
sides and appropriately expressing them.’ Thus, voicing ‘concerns is not only not adverse to the company’s
interests, it is exactly what the company expects of a manager.’” Id. The Manager Rule, however, is inapplicable in
this case for several reasons. First, the Court agrees with Smith that the FLSA has a separate and distinct antiretaliation provision from Title VII, as highlighted by the FLSA’s requirement for a “complaint” rather than Title
VII’s less formal “opposition” or “participation” requirements. Second, the policy rationale behind the rule is
inapplicable to Smith’s position at SUS because there is no indication that Smith actually voiced or reported
concerns of SUS employees. Instead, Smith merely advised Slaughter on SUS’s sexual harassment reporting
requirements and testified as to that advice during the 2007 Slaughter litigation.
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ii. Causation
A Title VII retaliation claim applies the traditional but-for causation standard: “This
requires proof that the unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2533 (2013). Causation, for purposes of proving a prima facie case of retaliation, may be
established by close temporal proximity between the protected activity and the adverse
employment action. McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007); see Amsel
v. Tex. Water Dev. Bd., 464 Fed. Appx. 395, 401–02 (5th Cir. 2012) (stating that two months
between the protected activity and the adverse employee action is insufficient alone to establish
causation). Absent temporal proximity, the plaintiff can establish a prima facie case with other
direct evidence of causation.
In this case, it is undisputed that Smith’s protected activity—testifying in the 2007
Slaughter litigation—occurred two years prior to her termination. The exact temporal proximity
necessary to establish a causal link in a Title VII retaliation case is somewhat unclear; however,
the Court agrees with the defendants that two years is too attenuated to do so. After determining
that causation cannot be established in this case based on temporal proximity, the Court next
analyzes whether the other direct evidence presented creates a genuine issue of material fact
regarding causation.
The Court spent considerable time reviewing the record evidence cited by the parties and
comparing that evidence with the assertions being made in the parties’ briefs. In doing so, it
quickly became apparent that the plaintiff played fast and loose with the facts of this case. The
plaintiff’s brief is blanketed by arguments drawn from either intentional or negligent
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mischaracterizations of the facts.2 At the very least, the plaintiff continually miscited the record
evidence necessary to substantiate the claims being made. However, it is not the role of this
Court to search beyond the cited materials to find evidence that may create a genuine issue of
material fact. The plaintiff must come forth with the necessary evidence to support their position.
Fed. R. Civ. P. 56(c).
Furthermore, the arguments raised in the plaintiff’s brief are not, themselves, competent
summary judgment evidence—these arguments must be supported by concrete and specific facts
in the record. Here, the conclusions reached by the plaintiff, in support for her claim that
summary judgment is inappropriate, are unsubstantiated by the evidence the plaintiff cited to for
those assertions. The plaintiff’s speculative, vague, and generalized evidence is insufficient to
create a genuine issue of material fact as to causation. Therefore, summary judgment is
GRANTED as to the plaintiff’s claim for Title VII retaliation.
The following examples are illustrative of the above-mentioned deficiencies:3
(1) Plaintiff’s assertion: The “defendant admitted to the EEOC on July 27, 2012, that both
Board Chair Clayton and Board member McGee specifically told Smith that Freeman
wanted her gone because she ‘wanted to have people around her that she could trust to be
loyal to her.’” Pl.’s Opp’n 2, Doc. 17 (citing Defs.’ EEOC Response, Doc. 17-3)
(emphasis added).
“By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or
late advocating it—an attorney . . . certifies that to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances: the factual contentions have evidentiary support . . . .”
Fed. R. Civ. P. 11(b)(3).
3
The assertions being quoted herein are only a sample of the problems discussed above. To explain every
discrepancy would take far too much time and further waste judicial resources. As such, only some of the most
blatant examples are provided. The Court notes that these assertions are being pulled from the “Facts” section of the
plaintiff’s brief, rather than the “Causation/Retaliation” discussion. The Court has done so for several reasons. First,
the record citations for each assertion are only provided in the “Facts” section and therefore the similar assertions
being made in the “Causation” discussion cannot be substantiated without a reference to these citations. Second, the
plaintiff states that “this case presents direct evidence of retaliatory animus” and then goes on to list assertions in
support for that conclusion, such assertions are consistent with those presented in the “Facts” section. Finally, the
Court looked beyond the “Causation” discussion because it only provided a short explanation of the claim for
retaliatory animus. Therefore, the Court looked to other portions of the brief that may contain relevant arguments.
2
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In reviewing the EEOC Response it is clear that the defendants did not make the alleged
admission. Instead, in response to the above claim, the defendants answered: “Since September
5, 2005 Smith’s position title as Assistance to the President (System Level) she served at the
pleasure of President and the Board of Supervisors. Her employment is predicated o[n] the
wishes of the President with the approval of the Board. It was Freeman’s propagative [sic] to hire
her staff as she sees fit.” Defs.’ EEOC Response 2, Doc. 17-3. Although this statement can be
viewed as evasive, it is a mischaracterization of the evidence to state that the defendants
“admitted” that Freeman said she wanted to fire Smith in order to have loyal people around her.
(2) Plaintiff’s assertion: “Freeman made it very clear that she wanted to hire young people
and that Freeman ‘thought she would be able to train them to do what she wanted them to
do.’” Pl.’s Opp’n 4, Doc. 17 (citing Smith Dep. 47–50, Doc. 17-2).
The support for the above assertion appears to be this statement in Smith’s own
deposition: “[Freeman] tended to surround herself with young, inexperienced people. And she
seemingly, to me, sought to just be surrounded by younger people. I thought it was primarily
because of the inexperience that they would do what she kind of told them to do.” Smith Dep.
47:19–24, Doc. 17-2 (emphasis added). Although Smith testified that Freeman replaced
experienced older employees with inexperienced younger employees, the plaintiff’s subjective
belief as to why Freeman hired younger employees is insufficient to create a genuine issue of
material fact.
(3) Plaintiff’s assertion: Smith stated that “shortly after Slaughter’s departure in early July
. . . she walked into Freeman’s office and found Freeman, Dumas, and Tillman discussing
terminating her.” Pl.’s Opp’n 4, Doc. 17 (citing Smith Dep. 134–35, Doc. 17-2).
The cited portion of Smith’s deposition does not support this assertion. Instead, in her
deposition Smith stated that she walked into Freeman’s office some time shortly after Freeman
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became President and saw Freeman, Dumas, and Tillman “working on what [Smith] later
realized was the [reorganization] plan.” Smith Dep. 134–35, Doc. 17-2 (emphasis added). Smith
later stated that although she heard the three of them talking about the Reorganization Plan, she
“couldn’t tell you what they were saying[.]” Id. at 135:13–21. The claim that Smith overheard
these three discussing terminating her is unsubstantiated by Smith’s testimony.
(4) Plaintiff’s assertion: “Freeman confirmed, regarding termination, that she/Freeman had
done what the Board told her to do.” Pl.’s Opp’n 4, Doc. 17 (citing Smith Dep. 165–68,
Doc. 17-2).
The testimony cited to is too vague and attenuated to support the conclusion being drawn
from it. Smith testified that she believes that “Attorney Dumas is one of the persons who gave
directives to Dr. Freeman about what should transpire in the reorganization plan.” Smith Dep.
165:15–18, Doc. 17-2. Smith went on to say that she based this conclusion “upon a comment . . .
that Dr. Freeman made at the July board meeting following a statement that Mr. Dumas made.”
Id. at 165:20–24. Without explanation of what comment Dumas made, Smith stated that she
overheard Freeman talking to an unknown person “about [how] she didn’t know anything about
this, I’m doing what they told me to do.” Id. at 165–66. Smith concluded that “I believe that Dr.
Freeman’s statement that she did what they told her to means she interacted with board members
and came up with a plan to carry out the directives that they gave her.” Id. at 168:16–19
(emphasis added). Again, this conclusion represents Smith’s subjective belief concerning a
vague comment she overheard and is insufficient to create a genuine issue of material fact.
b. Age Discrimination
To establish a prima facie case of age discrimination under the ADEA, a plaintiff must
demonstrate that she was (1) discharged; (2) qualified for the position; (3) within the protected
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class (i.e. over the age of 40) at the time of the discharge; and (4) either (i) replaced by someone
outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged
because of her age. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). The
McDonnell Douglas burden-shifting framework applies to ADEA cases that rely on
circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
this framework, once the plaintiff establishes a prima facie case of age discrimination, the burden
shifts to the employer to “articulat[e] a legitimate, nondiscriminatory reason for the discharge.”
Bodenheimer, 5 F.3d at 957 (citations omitted). At this stage, there is no credibility assessment—
an employer meets its burden by providing admissible evidence of a legally sufficient
explanation for its actions. Id. at 957–58; see Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 256–57 (stating that it is inappropriate to “place[] on the defendant the burden of persuading
the court that it had convincing, objective reasons for [its actions]”).
If the employer meets its burden, then the burden shifts back to the plaintiff to show that
the employer’s reasons are merely pretext. McDonnell Douglas, 411 U.S. at 804. To meet this
burden under the ADEA, the plaintiff “must prove that the proffered reasons are not just pretexts
but pretexts for age discrimination. . . . To prevail ultimately, the plaintiff must prove, through a
preponderance of the evidence, that the employer’s reasons were not the true reasons for
employment decision and that unlawful discrimination was.” Bodenheimer, 5 F.3d at 957.
Pretext cannot be established by conclusory statements and subjective speculation—the plaintiff
“must offer specific evidence refuting the factual allegations underlying [the employer’s]
reasons[.]” Turner, 476 F.3d at 345–46.
Here, it is undisputed that: (1) Smith was discharged; (2) Smith was qualified for the
position; (3) Smith was within the protected class; and (4) Smith was replaced by someone
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younger. Defs.’ EEOC Response, Doc. 17-3. Therefore, for purposes of summary judgment,
Smith has established a prima facie case of age discrimination under the ADEA and the burden
shifts to the defendants to articulate a legitimate, non-discriminatory bases for termination.
The defendants have stated that Smith was terminated due to budget reductions and
because Woods was more qualified for the new position created under the Reorganization Plan.
Id. at 3 (“The move to replace Smith was not strictly on the bases of economics, she was
replaced with an individual with considerably more experience and ability to perform [the]
multiple functions [of the new position].”). The Court makes no assessment as to the credibility
of the defendants’ proffered reason; all that is required is a legally valid reason. Thus, the
defendants have met their burden of providing a legitimate, non-discriminatory reason for
Smith’s termination.
Next, the Court considers whether Smith has provided sufficient evidence that the
defendants’ proffered reasons are pretext for age discrimination. As previously mentioned, many
allegations relied on by Smith are speculative, vague, or unsubstantiated by the record. Similarly,
Smith’s claim that the defendants’ proffered reasons for Smith’s termination shifted over time is
a mischaracterization of the cited record evidence. See Pl.’s Opp’n 9–10, Doc. 17 (citing Defs.’
EEOC Response, Doc. 17-3 and Freeman Aff., Doc. 12-4). On July 27, 2012, the defendants
stated that the decision to terminate Smith was based on both qualifications and economic
concerns. Defs.’ EEOC Response 3, Doc. 17-3. On August 31, 2015, Freeman executed an
affidavit discussing the Reorganization Plan and stating that terminating Smith and hiring Woods
in the new position “affected a net savings of over $70,000 to the SUS operating budget.”
Freeman Aff. 3, Doc. 21-4. Smith contends that this evidence demonstrates a shift in the
defendants’ reasons from both economics and qualifications to solely economics. However,
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Freeman’s affidavit refers to both Woods qualifications for the new position and the money
saved by hiring Woods. Id. at 3 (stating that Freeman knew Woods had “experience in higher
education and corporate law” and that “[p]lacing Tracie Woods in the position of Executive
Counsel and eliminating Frances Smith’s position” saved $70,000). Thus, despite the plaintiff’s
contention, the evidence cited does not support the conclusion that the defendants have provided
inconsistent or shifting reasons for Smith’s termination.
As a basis for pretext, Smith further alleges that Woods was significantly less qualified
than Smith. For example, Woods was only licensed to practice law in 2008 while Smith had been
licensed for decades. Additionally, Smith had over 35 years of experience in higher education
while Woods only briefly worked as a student worker and employee of an insurance company
that insured schools. Pl.’s Opp’n 10, Doc. 17. In support for the claim of Woods’ superior
qualifications, the defendants state that Smith primarily served as an administrator while
employed with Southern, not as an attorney for a business entity, whereas Woods has an MBA,
served as General Counsel and provided legal advice to companies and government units, has
practiced as an independent attorney, and has experience in a university setting as legal counsel.
Defs.’ EEOC Response 3, Doc. 17-3. According to the defendants, these qualifications were
more appropriate for the new position for which they hired Woods. Id. The Court notes that all of
the underlying facts concerning Smith and Wood’s respective qualifications are undisputed. At
issue is whether those facts create a genuine issue as to pretext. Even when viewed in the light
most favorable to Smith as the non-moving party, the evidence presented does not create a
genuine issue of material fact as no reasonable jury could conclude that the defendants’ proffered
reasons for Smith’s termination were a pretext for age discrimination. Therefore, summary
judgment is GRANTED on Smith’s age discrimination claim.
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IV.
CONCLUSION
For the reasons stated herein, the defendants’ Motion (Doc. 12) for Summary Judgment is
GRANTED.
Signed in Baton Rouge, Louisiana, on January 12, 2016.
JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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