Dantes v American Electric Power

Filing 52

MEMORANDUM RULING re 49 MOTION for Summary Judgment filed by American Electric Power Service Corp, Southwestern Electric Power Co. Signed by Chief Judge S Maurice Hicks, Jr on 5/1/2018. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
NICOLE C. DANTES

CIVIL ACTION NO. 15-0528

VERSUS

JUDGE S. MAURICE HICKS, JR.

SOUTHWESTERN ELECTRIC
POWER COMPANY, ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court is Defendants Southwestern Electric Power Company
(“SWEPCO”) and American Electric Power Service Corporation’s (“AEP”) (collectively the
“Defendants”) unopposed “Motion for Summary Judgment” (Record Document 49)
seeking to dismiss all of Plaintiff Nicole C. Dantes’ (“Dantes”) claims of discrimination
under Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.,
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. For the reasons
contained herein, Defendants’ unopposed “Motion for Summary Judgment” is
GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND 1
Dantes began her employment search with Defendants on February 13, 2007,
seeking employment as a Customer Service Associate. See Record Document 49-5 at
68. Based upon her application, and following the completion of the employment
application process, including an interview, she was employed on March 19, 2007 by the

1

Local Rule 56.1 requires the moving party to file a statement of material facts as to which it contends there
is no genuine issue to be tried. All material facts set forth in the statement required to be served by the
moving party “will be deemed admitted, for purposes of the motion, unless controverted as required by this
rule.” Local Rule 56.2. In the present matter, Dantes has not filed an opposition to Defendants’ Motion for
Summary Judgment. On April 3, 2018, this Court issued a “Notice of Motion Setting” (Record Document
51) giving Dantes fourteen (14) calendar days to file an opposition. To date, no opposition has been filed.
Therefore, the material facts which follow, as submitted by Defendants, have not been controverted and
are hereby deemed admitted. See Record Document 49–2.

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Defendants as a Customer Solutions Associate in Shreveport, Louisiana. See id. at 4. In
her role with the Defendants, Plaintiff was responsible for processing customer requests,
answering customer inquiries and resolving complaints within the Customer Solutions
Center (“CSC”). See id. at 3. Customer Solutions Associates work at a desk in a call
center environment which can be a high stress environment due to customers using the
CSC to voice concerns, complaints and issues that are affecting not only electric service,
but also emergencies, such as outages, downed power lines, and other hazards. See id.
On November 1, 2007, Dantes left work early due to an alleged health-related issue. See
id. at 4. From the following day until her termination, Dantes failed to report to work due
to alleged health-related reasons, although she did not provide Defendants with
necessary and requested information to substantiate her alleged health issue. See
Record Document 49-3 at 3. Specifically, the AEP Recovery Center, which is responsible
for administrating the Company’s Sick Pay Plan, and Dantes’ supervisors made
numerous calls to her in November 2007 requesting more information to substantiate her
absences in order to continue her sick pay. See id.
AEP’s Sick Pay Policy specifically requires “written documentation from a health
care provider certifying the reason for the absence, expected date of return, and written
proof of continuing inability to work.” Id. The Policy further requires that “you must notify
your supervisor each day of your absence, unless other arrangements have been made.”
Record Document 49-5 at 36. The Sick Pay Policy clearly provides that benefits under
the Policy terminate when “you fail to submit, when requested, sufficient written objective
medical information relating to your illness or injury which supports a functional
impairment preventing you from performing your occupation or a reasonable employment

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option.” Id. at 40. Further, the AEP Recovery Center, sent correspondence to Dantes
enclosing a blank Certificate of Disability / Attending Physician Statement advising that
the form “must be completed and returned to the Recovery Center no later than
[November 28, 2007].” Id. at 46.
On November 14, 2007, two weeks after Dantes left early during her shift due to
medical issues, Defendants began receiving doctors’ slips providing that Dantes was
“under the care of” a doctor or to “please excuse her from work.” See id. at 5. Specifically,
the excuses Dantes provided to Defendants on November 14, 2007 are as follows:
•

Return to Work or School Excuse dated November 5, 2007 by Dr.
Cassiere stating that Nicole Dantes has been under his care on
November 6, 2007 and is able to return to work on November 7,
2007.

•

Excuse from Work / School dated November 8, 2007 by Willis
Knighton Imaging Center stating “please excuse Nicole Dantes from
work. This patient had a procedure/x-ray done at Willis Knighton
Health Systems at the Portico location, in the Imaging Department.”

•

A notation from Overton Brooks VA Medical Center dated 11/11/07
with a handwritten note which states “*may return to work on
11/14/07,” and another handwritten note – which appears to be that
of Ms. Dantes – states “VA emergency room seen on 11/11/07,” but
with no notation of what plaintiff was seen for at Overton Brooks on
11/11/07.

•

A note from Ark-La-Tex Cardiology dated November 13, 2007 and
signed by Dr. Laura K. Murphy stating “please excuse Nicole Dantes
from work/school this date as he/she had an appointment in our
office.”

•

A note from John M. Gilmer, Jr., DDS, dated November 14, 2007,
stating “This is to certify that Nicole Dantes had an appointment at
this office for endodontic therapy on: November 14, 2007 at 9:15
o’clock. Please excuse from Work until 11/16/07.

•

A second note from John M. Gilmer, Jr., DDS dated November 14,
2007, stating “This is to certify that Nicole Dantes has an
appointment at this office for endodontic therapy on: November 28,
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2007 at 8:00 o’clock. Please excuse from Work until 11/28/07.” An
additional handwritten note – which appears to be that of Ms. Dantes
– indicates that this is an “Extended Absence Excuse 11/14/07 –
11/28/07.”
Id. at 5-6. These work excuses do not comply with Defendants’ Sick Pay requirements as
they do not provide sufficient written objective medical information relating to Dantes’
illness supporting a functional impairment preventing her from performing her job. See id.
at 5.
On November 14, 2007, Defendants also received a Certificate of Disability /
Attending Physician Statement from Dr. Cassiere providing that Dantes had been treated
for a “UTI” from November 2, 2007 through November 9, 2007, with a release to full duty
on November 12, 2007. See id. at 5. On November 20, 2007, Defendants received
another Certificate of Disability / Attending Physician Statement from Dr. Cassiere
providing that Ms. Dantes had been treated for a “UTI / Dyspnea with speaking” from
November 2, 2007 through November 9, 2007, with a release to full duty on November
12, 2007, which are the same dates previously set forth in Dr. Cassiere’s November 12,
2007 Certificate. See id. at 6. Later, on November 27, 2007, AEP received a Certificate
of Disability / Attending Physician Statement from Dr. Gilmer which provided that Dantes
was being treated for a Root Canal on November 14, 2007. See id. 2
As a result of Dantes’ continued absences and her failure to provide the necessary
documentation, Ms. Pamela Dukes issued a termination letter to Dantes on November
27, 2007. See id. at 7. The next day, Ms. Vivian Andrews spoke with Dantes and

2 This Certificate of Disability / Attending Physician Statement provided that Dantes was being treated for
a root canal from November 14, 2007 to December 13, 2007, with a release to full duty date of December
14, 2007. See Record Document 49-5 at 62. However, this was not covered under Defendants’ sick-pay
policy because (1) there was insufficient written medical documentation and (2) no root canal was
performed per Dr. Gilmer’s office on November 14, 2007. See id. at 6.

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confirmed the termination. See id. On November 29, 2007, after the expiration of the
company’s deadline for Dantes to submit documentation, Dantes alleges that she sent a
two-page fax, inclusive of the coversheet, to SWEPCO. 3 See Record Document 49-7.
The document allegedly contained either a Certificate of Disability / Attending Physician
Statement from Dr. Kamm or a Return to Work Certificate signed by Dr. Kamm November
27, 2007, providing documentation. See id. Neither the Return to Work Certificate nor the
Certificate of Disability provided that Dantes had been diagnosed with active tuberculosis
(“TB”), nor did either document indicate that she had a positive TB skin prick. 4 See id.
The document simply provided that Dantes was first treated on November 27, 2007 and
“cannot carry-on conversation.” See id. Dantes never provided any documentation to
Defendants indicating that she had active TB or even that she had tested positive for TB
on a preliminary skin test at any time. See Record Document 49-5 at 7. In fact, there is
no evidence in the record which establishes she was ever diagnosed with active TB.
On July 14, 2008, Dantes filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) alleging she had been discriminated against based on “being
regarded as having a disability.” Record Document 49-4 at 2. On December 17, 2014, the
EEOC issued a Notice of Right to Sue in connection with the complaint filed by Dantes.
See Record Document 1-1. On March 9, 2015, Dantes filed the instant lawsuit alleging
she was discharged by the Defendants because she was disabled due to her TB
diagnosis. See Record Document 1 at 2-3. Defendants filed the instant Motion for

3

Defendants have no record of either of these documents ever being provided to them. See Record
Document 49-5 at 7.
4 In a separate document, it is provided that on November 30, 2007, after her termination from employment,
Dantes received a positive test on a TB skin prick test. See Record Document 49-6. A positive skin prick
does not equate to a diagnosis of active tuberculosis; rather, it indicates that additional testing is necessary.
See id.

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Summary Judgment on April 2, 2018, arguing summary judgment is proper regarding her
ADA claims because there is no genuine issues of material fact showing Dantes was (1)
not disabled, (2) not qualified for the position in which she was employed, and (3) not
discriminated against because of her alleged disability. See Record Document 49-1 at
13-28. Defendants also seek dismissal of Dantes’ Title VII claims because she failed to
exhaust her administrative remedies. See id. at 29-30. As previously mentioned, Dantes
did not oppose Defendants’ Motion.
LAW AND ANALYSIS
I.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure governs summary judgment. This

rule provides that 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.” F.R.C.P. 56(a). Also, “a party asserting that a fact cannot be or is genuinely
disputed must support the motion by citing to particular parts of materials in the record.”
F.R.C.P. 56(c)(1)(A). “If a party fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as required by Rule 56(c), the court
may ... grant summary judgment.” F.R.C.P. 56(e)(3).
In a summary judgment motion, “a party seeking summary judgment always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings ... [and] affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (internal quotations and citations
omitted). If the movant meets this initial burden, then the non-movant has the burden of

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going beyond the pleadings and designating specific facts that prove that a genuine issue
of material fact exists. See id. at 324, 106 S.Ct. at 2553; see Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994). A non-movant, however, cannot meet the burden of
proving that a genuine issue of material fact exists by providing only “some metaphysical
doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions,
or by only a scintilla of evidence.” Little, 37 F.3d at 1075.
In reviewing a motion for summary judgment, the court is to view “the facts and
inferences to be drawn therefrom in the light most favorable to the non-moving party.”
Tubos de Acero de Mexico, S.A. v. Am. Int'l Inv. Corp., Inc., 292 F.3d 471, 478 (5th Cir.
2002); see also Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014). However, when there
is video evidence available in the record, the court is not bound to adopt the nonmoving
party's version of the facts if it is contradicted by the record, but rather should “review[ ]
the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381, 127
S.Ct. 1769, 1776 (2007); see also Carnaby v. City of Houston, 636 F.3d 183, 187 (5th
Cir. 2011) (“Although we review evidence in the light most favorable to the nonmoving
party, we assign greater weight, even at the summary judgment stage, to the facts evident
from video recordings taken at the scene.”). Further, the court should not, in the absence
of any proof, presume that the nonmoving party could or would prove the necessary facts.
See Little, 37 F.3d at 1075.
II.

DISABILITY DISCRIMINATION CLAIM
To meet her initial burden of disability discrimination under the ADA, Dantes must

show that: (1) she has a disability, (2) she is a qualified individual for the job in question,
and (3) an adverse employment decision was made because of her disability. See Talk

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v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999). The plaintiff bears the burden
of proving each of these elements. See Moody v. M.W. Kellogg Co., 176 F.3d 479 (5th
Cir. 1999), citing Rizzo v. Children's World Learning Ctrs., 84 F.3d 758, 763 (5th Cir.
1996).
A.

Disability
Whether someone is disabled is a “threshold issue” of coverage under the ADA.

See Lomastro v. Caddo Par. Sheriff, 2006 WL 1805875, *2 (W.D. La. 2006). A disability
under the ADA is defined as “(1) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual (actual standard); (2) record of
such impairment; or (3) being regarded as having such an impairment.” Cargo v. Kansas
City S. Ry. Co., 2011 WL 3879523, *3 (W.D. La. 2011). Although not discussed in any
detail by Dantes in her Complaint, she alleges that at the time of her discharge, she “had
a condition that substantially limited her in one or more major life activities (actual
standard), [] had a record of such a condition, and the [Defendants] regarded her as
having such a condition.” Record Document 1 at 3. Accordingly, the Court will analyze all
three standards of disability.
1.

Actual Standard

A plaintiff satisfies the actual standard by showing she has “a physical or mental
impairment that substantially limits one or more major life activities.” 42 U.S.C. §
12102(1)(A). “Merely having an impairment, however, does not make one disabled for
purposes of the ADA. Plaintiff[] also need[s] to demonstrate that the impairment
substantially limits a major life activity.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570
F.3d 606, 614 (5th Cir. 2009) (citations omitted). The term “substantially limits” means:

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(i)

Unable to perform a major life activity that the average person in the
general population can perform; or

(ii)

Significantly restricted as to the condition, manner or duration under
which an individual can perform a particular major life activity as
compared to the condition, manner or duration under which the
average person in the general population can perform that same
major life activity.

29 C.F.R. § 1630.2(j)(1).
The EEOC defines “major life activities” as “functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and
working.” 29 C.F.R. § 1630.2(i). In order to be substantially limited in the major life activity
of “working,” a plaintiff must allege that she is “unable to work in a broad class of jobs or
a broad range of jobs in various classes.” Savoy v. Borden’s Milk Products, LP, 2006 WL
2914647, *2 (W.D. La. 2006). An employee’s “inability to perform one aspect of the job
while retaining the ability to perform the work in general does not amount to a substantial
limitation of the activity of working.” Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th
Cir. 1995). Dantes presents no evidence that her “disability” prevents her from performing
an entire class of jobs, or even a broad range of jobs.
In the instant matter, Dantes’ Complaint asserts, without medical support or proof,
she was disabled due to her TB diagnosis. See Record Document 1. However, Dantes
was never diagnosed with active TB. Rather, on November 30, 2007, after her termination
from employment and thirty (30) days after first reporting absent from work due to alleged
health-issues, Dantes only received a positive test on a TB skin prick test. See Record
Document 49-6. A positive skin prick does not equate to a diagnosis of active TB; rather,
it simply indicates that additional testing is necessary. See id. Importantly, there was
never any diagnosis produced to Defendants or in any discovery subsequent to that date.

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See Record Document 49-5 at 7. Even to this day, some ten plus years after her
termination from Defendants, Dantes has not provided any medical documentation to
establish that she was diagnosed with active TB. See id.
Dantes’ case is very similar to that of Lester v. Trans World Airlines, Inc., 1997 WL
417814 (N.D. Ill. 1997). In Lester, the plaintiff had a track record of absenteeism. See id.
at *1. She was then diagnosed with active TB, causing her to be hospitalized and miss
additional work. See id. at *2. Lester initially took a medical leave of absence when she
was diagnosed with the active condition. See id. Upon being cleared for work by her
physician with no restrictions, Lester returned to her employment with the company. See
id. However, her excessive absenteeism also continued – which she blamed on the side
effects of the medication she was taking for her TB. See id. Following warnings from
supervisors, the company terminated Lester due to excessive absenteeism. See id. at *3.
Lester filed suit under the ADA contending that her TB infection was a substantially
limiting impairment that qualified her for protections under the ADA. See id. at *1.
The Lester court reviewed the EEOC Compliance Manual regarding TB, which
provides that TB is only viewed as a disability “when it is: 1) active; 2) has a high likelihood
of recurrence in substantially limiting forms; or 3) requires substantial limitation of major
life activity to prevent or lessen the severity of recurrence.” Id. at *7, citing EEOC
Compliance Manual § 902.4(d). The Lester court went on to state that the plaintiff
“presented no evidence that her tuberculosis is still active, that there is a high likelihood
of it recurring in a substantially limiting form, or that a substantial limitation on her major
life activities is required to prevent or lessen the severity of its recurrence.” Id. Accordingly,

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the Lester court held that “the EEOC guidelines [ ] confirm that her condition does not
constitute a disability.” Id.
Here, Dantes has similarly provided no evidence to support her claim that her
potential diagnosis of TB constitutes a disability. Unlike Lester, where the plaintiff was
actually diagnosed and treated for active TB, including several weeks in the hospital and
drug treatment for multiple months, Dantes presented no evidence that she ever had
active TB, and in fact, during this litigation it has been determined that following her
positive skin test she failed to take her medication as prescribed by her physician, and
she was never found to have active TB. See Record Document 49-6. Further, Dantes has
provided no evidence that her condition had a “high likelihood of reoccurring” or that she
was required to substantially limit major life activities in order to prevent or less the
severity of the reoccurrence. Additionally, and significantly, Dantes never provided any
documentation to Defendants indicating that she had active TB or even that she had
tested positive for the TB on a preliminary skin test at any time. See Record Document
49-5 at 7. Accordingly, the Court finds insufficient evidence to conclude Dantes’ condition
constitutes a disability.
2.

“Regarded as” Disabled

A plaintiff satisfies the regarded-as standard by establishing she has been
“subjected to a prohibited action [e.g., termination] because of an actual or perceived
physical or mental impairment, whether or not that impairment substantially limits, or is
perceived to substantially limit, a major life activity.” Williams v. Tarrant Cty. Coll. Dist.,
2018 WL 480487, *4 (5th Cir. 2018), quoting 29 C.F.R. § 1630.2(l)(1). Under the amended
regarded-as standard, a plaintiff “needs to plead and prove only that she was regarded

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as having a physical or mental impairment [and not] that the actual or perceived
impairment substantially limited one or more major life activities.” Id., quoting Adair v. City
of Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016) (quotation and citation omitted); see
also Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 230 (5th Cir. 2015).
Therefore, to be “regarded as impaired,” Dantes “need only show that her employer
perceived her as having an impairment and that it discriminated against her on that basis.”
Burton, 798 F.3d at 230 (cleaned up).
Dantes has submitted no evidence pertaining to her ADA claim. Consequently,
there is no evidence in the record to support her claim that Defendants perceived her as
having TB, or potentially having TB, and that Defendants discriminated against her on
that basis. Without such evidence, Dantes cannot prove she was regarded as having a
disability under the ADA.
3.

“Record of” Disability

A plaintiff has a record of a disability only after having had (or when being
perceived as having had) a “disability” as the ADA uses that term. See Jordan v. Kellwood
Co., 189 F.3d 469 (5th Cir. 1999), citing Hamilton v. Southwestern Bell Telephone Co.,
136 F.3d 1047, 1051 (5th Cir.1998); 29 C.F.R. § 1630.2(k). As discussed supra, the Court
has determined that Dantes did not have a “disability” as described by the ADA, nor was
she perceived as having a “disability;” therefore, Dantes has failed to provide summary
judgment evidence that she has a record of such an impairment that substantially limits
a major life role. Accordingly, Dantes is unable to prove that she qualified as “disabled”
under the ADA.

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B.

Non-Discriminatory Cause
Furthermore, even if Dantes were disabled, the ADA requires that Defendants’

adverse employment action be taken because of her disability. See Talk, 165 F.3d at
1024. Dantes was not terminated because of her disability but rather because of her
unexcused absences.
On November 1, 2007, Dantes left work early due to an alleged health related
issue. See Record Document 49-5 at 4. From the following day until her termination,
Dantes stayed off work for alleged health-related reasons, although she failed to provide
Defendants with necessary and requested information to substantiate her alleged health
issue. See Record Document 49-3 at 3. AEP’s Sick Pay Policy specifically requires written
documentation from a health care provider certifying the reason for the absence,
expected date of return, and written proof of continuing inability to work. See id. The Policy
further requires that “you must notify your supervisor each day of your absence, unless
other arrangements have been made.” Record Document 49-5 at 36. The Sick Pay Policy
clearly provides that benefits under the Policy terminate when “you fail to submit, when
requested, sufficient written objective medical information relating to your illness or injury
which supports a functional impairment preventing you from performing your occupation
or a reasonable employment option.” Id. at 40. Further, the AEP Recovery Center sent
correspondence to Dantes enclosing a blank Certificate of Disability / Attending Physician
Statement advising that the form “must be completed and returned to the Recovery
Center no later than [November 28, 2007].” Id. at 46.
On November 14, 2007, Defendants received multiple doctors’ slips providing that
Dantes was “under the care of” a doctor or to “please excuse her from work.” See Record

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Document 49-5 at 5-6. However, none of the slips indicated any medical condition or any
disabling medical condition. See id. Also on November 14, 2007, Defendants received a
Certificate of Disability / Attending Physician Statement from Dr. Cassiere providing that
Dantes had been treated for a “UTI” from November 2, 2007 through November 9, 2007,
with a release to full duty on November 12, 2007. See id. at 5. Later, on November 20,
2007, Defendants received another Certificate of Disability / Attending Physician
Statement from Dr. Cassiere providing that Dantes had been treated for a “UTI / Dyspnea
with speaking” from November 2, 2007 through November 9, 2007, with a release to full
duty on November 12, 2007, which are the same dates previously set forth in Dr.
Cassiere’s November 12, 2007 Certificate. See id. at 6. In other words, Dantes should
have returned to work no later than November 13, 2007, but failed to do so.
After reviewing the documents that were received regarding Dantes, the
Defendants determined that there was medical documentation substantiating her
absence from November 1-11, 2007, and she received sick pay benefits for those days.
See Record Document 49-5 at 7. However, Dantes received a release to return to work
at full-duty effective November 12, 2007, but failed to return to work until she was
terminated, and there was no objective medical documentation to support her continued
absences. See id. Accordingly, Dantes’ employment was terminated for her multiple
unexcused absences in accordance with the Defendants’ policy and procedures. See id.
The termination was not due to any discrimination based on Dantes’ alleged disability.
Since Dantes cannot prove either elements one or three of her prima facie case of
discrimination under the ADA, the Court need not analyze whether she is a qualified
individual for the job in question. See Moody v. M.W. Kellogg Co., 176 F.3d 479.

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Accordingly, Defendants’ Motion for Summary Judgment pertaining to Dantes’ ADA claim
is GRANTED.
III.

TITLE VII CLAIMS
Title VII provides that an employer may not “fail or refuse to hire or to discharge

any individual, or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (2012).
However, “[t]he scope of a Title VII complaint is limited to the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination.” Thomas v. Tex. Dep’t of Criminal Justice, 220 F.3d 389, 395 (5th Cir.
2000) (citations omitted) (finding that the plaintiff failed to exhaust her administrative
remedies with regard to her race claim because she only alleged gender discrimination
in her charge of discrimination). Courts have consistently required that claimant present
claims and exhaust administrative remedies, which is as easy as checking a designated
box(es) on the EEOC charge form. See Randel v. U.S. Dep’t of Navy, 157 F.3d 392, 395
(5th Cir. 1998) (holding that a plaintiff could not bring a race discrimination claim because
his charge of discrimination was confined to retaliation and disability discrimination); Price
v. Harrah’s Md. Heights Operating Co., 117 F.Supp.2d 919, 921-22 (E.D. Mo. 2000)
(granting summary judgment on failure to exhaust administrative remedies grounds for
employer because plaintiff did not check the box for retaliation and did not specifically
allege retaliation in the text of the charge); McCray v. DPC Indus., Inc., 942 F.Supp. 288,
294 (E.D. Tex. 1996) (informing that when asserting a claim for discrimination under Title
VII, it is necessary for the appropriate box be checked in the EEOC claim). By simply

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checking the box corresponding to the alleged basis for unlawful employment action, a
plaintiff can raise and exercise her/his administrative remedies prior to a Title VII lawsuit.
In determining whether an allegation in a complaint falls within the scope of an EEOC
charge, a court must “engage in fact-intensive analysis of the statement given by the
plaintiff in the administrative charge, and look slightly beyond its four corners, to its
substance rather than its label.” Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006);
see also Turner v. St. Luke’s Episcopal Health Sys., 2008 WL 706709, *7 (S.D. Tex.
2008).
Further, “a discriminatory act alleged in a lawsuit but not included in an EEOC
charge is not ‘like or related to’ acts that are alleged in an EEOC charge simply because
both are based on the same type of discrimination.” Turner at *7. For an alleged
discriminatory act to fall within the scope of an EEOC charge, a factual relationship must
exist between that act and the acts described in the charge. See id.
Here, Dantes has failed to exhaust her administrative remedies with regard to any
Title VII claim as no Title VII violation was alleged in her EEOC charge, though it is
provided as a basis for jurisdiction in paragraph 1 of her Complaint. See Randel, 157 F.3d
at 395. Accordingly, any Title VII claim must be denied due to Dantes’ failure to exhaust
administrative remedies. Therefore, Defendants’ Motion for Summary Judgment
dismissing Dantes’ Title VII claim is GRANTED.
CONCLUSION
The Court finds insufficient evidence to conclude that a genuine issue of fact exists
as to Dantes’ alleged disability with tuberculosis, nor that a genuine issue of fact exists
as to the cause of her termination. Thus, Dantes is not entitled to relief under the ADA

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based upon her claim of disability discrimination. Additionally, Dantes has failed to
exhaust her administrative remedies with regard to any Title VII claim as no Title VII
violation was alleged in her EEOC charge; therefore, any Title VII claim must be denied.
Accordingly, Defendants’ unopposed “Motion for Summary Judgment” (Record
Document 49) is GRANTED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 1st day of May, 2018.

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