United States District Court, M.D. Louisiana
REASONS FOR RULING ON MOTION FOR SUMMARY JUDGMENT
STEPHEN C. RIEDLINGER, Magistrate Judge.
Before the court is a Motion for Summary Judgment filed by the defendant Parkview Baptist School, Inc. Record document number 36. The motion is opposed.
Based on a careful review of the competent summary judgment evidence, the applicable law and the analysis that follows,  the defendant has demonstrated that it is entitled to summary judgment as to all claims brought by the plaintiff under the Age Discrimination in Employment Act and the Americans with Disabilities Act.
Plaintiff Melissa Kennedy was hired by the defendant in 2007 as a second grade teacher, and was a third grade teacher at the time of her discharge on April 5, 2012. During the 2011-2012 school year, the plaintiff reported to Jill Cowart, who held the position of assistant headmaster of the elementary division. From 2007 until the plaintiff's termination, Dr. Melanie Ezell was headmaster of the school. Ezell, rather than Cowart, had the authority to make decisions regarding the plaintiff's employment that would cause any significant change in benefits, such as promotion, reassignment or termination. Cowart reported to and made recommendations to Ezell.
Certain events beginning in the summer of 2011 through the 2011-2012 school year are relevant to the summary judgment analysis. In June 2011 the plaintiff attended a meeting, held off the school's campus, at which two school board members, other teachers and church members were present. At the meeting, the plaintiff answered questions and shared her concerns and complaints about Ezell and the school's current academics, policies and procedures. Ezell later questioned the plaintiff about the meeting several times, and each time the plaintiff refused to discuss the meeting with Ezell.
When the plaintiff signed her contract for the 2011-2012 school year on April 25, 2011, Cowart expressed her concerns about renewing the plaintiff's contract. Cowart stated her reasons were because of the plaintiff not being a team player, and her conflicts and inability to get along with her co-workers. At the beginning of the 2011-2012 school year Cowart also met with the plaintiff and Dona Robertson to express to them her concern about the third grade teachers' lack of collaboration and problem solving. Throughout the 2011-2012 school year, conflicts continued among the third grade teachers. According to the plaintiff, every time Cowart met with her, including at a meeting on March 16, 2012, Cowart told the plaintiff that she had concerns about giving the plaintiff a teaching contract for the following year.
In November 2011 a student was moved from the plaintiff's classroom to another third grade teacher's classroom. The student was moved based on information provided to Cowart from the guidance counselor and a letter addressed to Cowart from the grandmother of the student. In March 2012 Cowart also decided to move another student out of the plaintiff's classroom. Cowart made the decision based on recent reports from the student's parents and the student, including some comments the plaintiff made to the student. In the meeting Cowart had with the plaintiff on March 16, Cowart discussed the comment and circumstances which led to this student's transfer out of her class. After the meeting, Cowart decided that absent drastic changes in the plaintiff's school relationships, she would not recommend renewing the plaintiff's contract for the following school year.
On March 24, 2012 the plaintiff submitted a grievance letter to Fowler, who was the president of the school board. Some of the contentions and requests the plaintiff made in her grievance letter are summarized as follows: (1) Cowart and Ezell had failed to provide her with a safe place of work, and the combination of excessive workload, evaluations and workplace harassment exacerbated her asthma, which at times adversely affected her daily activities, impeding her "mobility and concentration within the working environment;" (2) Cowart used intimidation and bullying tactics, questioned her educational philosophy and classroom decisions without factual support and discussed her in a negative light with peers and co-workers; (3) Cowart's harassment led to mobbing behavior by at least two of her fellow teachers; (4) Ezell continued to harass, intimidate and bully her into answering questions about the meeting in the summer held at the library; (5) Cowart and Ezell's harassing and intimidating actions posed a substantial risk of harm to her mental and physical health; and, (6) despite being informed by the plaintiff and others of an incident that happened between two kindergarten students on the school playground in March 2012,  Cowart and Ezell failed to act promptly and adequately to address the incident to insure the health and safety of students. Plaintiff also stated in the letter her belief that she was the target of discrimination due to age, education and work experience. In the letter, the plaintiff requested that the school board suspend Cowart and Ezell, and asked that in any future meeting she had with Cowart or Ezell two or three school board members of her choosing also be present. On April 3, 2012, Gina McCaughey, the defendant's director of human resources, met with the plaintiff about her grievance and told the plaintiff how her complaints would be handled and investigated. At that time, based on the health issues stated in her grievance, McCaughey offered the plaintiff paid medical leave with full salary for the remainder of the year. Plaintiff rejected the offer of paid medical leave and told McCaughey she was able to perform her job duties. During the meeting the plaintiff told McCaughey that she refused to meet with Ezell or Cowart for any reason. In an April 5, 2012, meeting with McCaughey and Ezell, Ezell, who had the unanimous approval of the school board, terminated the plaintiff from her employment and tendered her remaining contract salary for the 2011-2012 school year. Plaintiff was 43 years of age when she was hired by the defendant, and was 47 when her teaching contract was terminated.
After her termination, the plaintiff filed this action against the defendant alleging discrimination, harassment and retaliation under the Age Discrimination in Employment Act ("ADEA") and the Americans With Disabilities Act ("ADA"). 29 U.S.C. § 623(a)(1); 42 U.S.C. § 12112. Plaintiff alleged that despite her outstanding employment evaluations, Ezell terminated her contract without cause on April 5, 2012. Plaintiff claimed that she was terminated because of her age and on the basis of her disability, as well as in retaliation for complaining of age and/or disability discrimination and harassment. Plaintiff also alleged that she was subjected to a hostile work environment based on age and disability. Some of the harassment alleged in the complaint was as follows: (1) plaintiff claimed she was treated differently than her co-workers, ignored, bullied, isolated and told not to talk during meetings or given additional responsibilities; (2) plaintiff was denied information and materials necessary to do her job; and (3) plaintiff was subjected to excessive evaluation of her classroom performance.
Defendant moved for summary judgment on all claims alleged by the plaintiff. With regard to the age discrimination claim, the defendant asserted that there is no evidence to support a prima facie case, or a reasonable inference that but for her age the plaintiff would not have been terminated. Defendant argued the plaintiff cannot show that she was replaced by someone younger or that similarly-situated younger employees were treated more favorably, nor can she refute its legitimate, non-discriminatory reasons for terminating her employment. Similarly, the defendant contended that summary judgment must be granted as to the plaintiff's claim of disability discrimination. According to the defendant, the plaintiff: (1) has no evidence to support the first essential element of her ADA claim - that she is disabled, has a record of disability or is regarded as disabled; (2) has no evidence that any non-disabled employee similarly situated to her received more favorable treatment; and, (3) has no evidence to dispute the legitimate, non-discriminatory reasons for her termination.
Defendant argued that the plaintiff's retaliation claim fails because the plaintiff cannot establish that she engaged in protected activity under the ADA or ADEA. Defendant asserted the plaintiff merely complained generally of harassment, intimidation and bullying in the workplace that was unrelated to age or disability. Defendant argued that even if the plaintiff engaged in protected activity, the plaintiff has no evidence to dispute the legitimate reasons and timing of the decision to terminate her employment. Therefore, the plaintiff cannot carry her burden of establishing that she would not have been terminated but for engaging in protected activity.
Finally, the defendant maintained that summary judgment is warranted as to any claim the plaintiff alleged based on age or disability harassment. Defendant argued the plaintiff cannot show that any of the harassment she alleges was based on age or disability, nor can the plaintiff show that the alleged harassment was severe or pervasive.
In support of its motion the defendant submitted 25 exhibits consisting of deposition excerpts of the plaintiff and Leigh Ann Rhodes, the affidavits of Cowart, Ezell, McCaughey, Robertson, Fowler, Laiche, Melissa Samson, Madison Gourney, Carol Garon, and Joana Dietrich, the plaintiff's March 24, 2012 grievance letter and the defendant's response to the grievance, emails related to the June 2011 library meeting and moving a student from the plaintiff's classroom, school counselor notes of November 16, 2011, March 13, 2012 parent concern form, April 16, 2012 letter from parents, March 16, 2012 meeting notes, a news report, age analysis, record of plaintiff's absences for the 2011-2012 school year, and a teacher observation schedule. Defendant also filed a Statement of Uncontested Material Facts.
Plaintiff asserted that all aspects of the defendant's motion should be denied. Plaintiff essentially argued that the record evidence shows that there are genuine, disputed issues of material fact that can only be resolved by the trier of fact. Plaintiff submitted 56 exhibits in opposition to the defendant's motion. Plaintiff also filed a Statement of Contested Material Facts.
Summary judgment is only proper when the moving party, in a properly supported motion, demonstrates that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986). If the moving party carries its burden under Rule 56(c), the opposing party must direct the court's attention to specific evidence in the record which demonstrates that it can satisfy a reasonable jury that it is entitled to verdict in its favor. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. This burden is not satisfied by some metaphysical doubt as to the material facts, conclusory allegations, unsubstantiated assertions or only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). In resolving the motion the court must review all the evidence and the record taken as a whole in the light most favorable to the party opposing the motion, and draw all reasonable inferences in that party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. The court may not make credibility findings, weigh the evidence, or resolve factual disputes. Id .; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110 (2000). A genuine issue of material fact exists when the evidence is such that a reasonable trier of fact could return a verdict for the non-moving party. Amerisure Ins. Co. v. Navigators Ins.Co., 611 F.3d 299, 304 (5th Cir. 2010).
On summary judgment, evidence may only be considered to the extent not based on hearsay or other information excludable at trial. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).
The substantive law dictates which facts are material. Canady v. Bossier Parish School Bd., 240 F.3d 437, 439 (5th Cir. 2001). In this case the court must apply the law applicable to discrimination, retaliation and harassment under the ADA and ADEA.
ADEA Discrimination Claim
Under the ADEA it is unlawful for an employer to fail or refuse to hire, discharge, or otherwise discriminate against any individual because of such individual's age. 29 U.S.C. § 623(a)(1). In employment discrimination cases a plaintiff may rely on direct or circumstantial evidence or both. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002). The well-established McDonnell Douglas  framework is applied by the Fifth Circuit to consideration of claims based on circumstantial evidence brought under the ADEA. To establish a prima facie case of age discrimination, a plaintiff must demonstrate that he or she was: (1) within the protected age group under the ADEA - age 40 and above; (2) qualified for the position, (3) suffered an adverse employment decision, and (4) replaced by someone outside the protected group or someone younger, or treated less favorably than similarly situated younger employees, or was otherwise discharged because of his or her age. West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384 (5th Cir. 2003); Leal v. McHugh, 731 F.3d 405, 410-11 (5th Cir. 2013); Maestas v. Apple, Inc., 546 Fed.Appx. 422 (Cir. 2013). There must be nearly identical circumstances for employees to be considered similarly situated. Berquist v. Washington Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007).
A plaintiff's prima facie case creates an inference of discrimination that shifts the burden of production to the defendant to come forward with evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. The burden is one of production, not persuasion, and "can involve no credibility assessment." Reeves, 530 U.S. at 142, 120 S.Ct. at 2106, citing, St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 2748 (1993); Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000).
Once the employer articulates a legitimate nondiscriminatory reason and produces competent summary judgment evidence in support of it, the inference created by the prima facie case drops out of the picture. Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000). The McDonnell Douglas framework with its presumptions and burdens disappears, and the only remaining issue is discrimination vel non. The fact finder must decide the ultimate question of whether the plaintiff has proven intentional discrimination. Id .; Reeves, supra . A plaintiff bringing an individual disparate treatment claim under the ADEA has the ultimate burden of proving that age was the but-for cause of the challenged adverse employment action. Gross v. FBL Financial Services, Inc., 557 U.s. 167, 129 S.Ct. 2343, 2352 (2009).
ADA Discrimination Claim
The ADA prohibits employers from discriminating "against a qualified individual on the basis of [a] disability in regard to... [the] discharge of employees, ... and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a); Neely v. PSEG Texas, LTD. Partnership, 735 F.3d 242 (5th Cir. 2012). To establish a prima facie case of discrimination under the ADA, a plaintiff must prove that she: (1) has a disability; 2) was qualified for the job; and, (3) was subject to an adverse employment decision on account of her disability. EEOC v. LHC ...