United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABETH E. FOOTE UNITED STAGES DISTRICT JUDGE
before the Court is a Motion for Summary Judgment [Record
Document 14] submitted by Defendant, Red River Entertainment
of Shreveport, LLC, d/b/a Sam's Town Hotel and Casino
("Sam's Town"), which prays for this Court to
dismiss all claims brought against it by Plaintiff, Rozena
Miller ("Miller"). Also pending are two Motions to
Strike [Record Documents 18 & 22]. Upon consideration of
the briefs filed by the parties and for the reasons stated
below, Defendant's Motion for Summary Judgement is
GRANTED IN PART and DENIED IN
PART. Plaintiff's Motion to Strike [Record
Document 18] is also GRANTED IN PART and
DENIED IN PART, and Defendant's Motion
to Strike [Record Document 22] is DENIED.
began working as a housekeeper for Harrah's Casino in
1997, and when Sam's Town acquired the property in 2004,
she worked for Sam's Town as a custodian, Record
Documents 14-3 & 17-6. She continued her employment with
Sam's Town until her termination on March 14, 2015.
See Record Document 17-4, p. 8. As a custodian for
Sam's Town, Plaintiff worked the graveyard shift starting
at 11:00 p.m. and ending at 7:00 a.m. on Friday and Saturday,
and from 11:00 p.m. to 6:00 a.m. on Monday through Thursday.
Record Documents 14-3 & 17-6.
2013, Plaintiff sought and was approved to take intermittent
FMLA leave. Record Document 14-2, pp. 11-12. She claims that,
at first, she was using her leave approximately one day each
month, but by the time she was terminated, she was using 4-6
days per month. Record Document 17-1, p. 1.
February 2015, Sam's Town began an investigation into its
graveyard shift employees as a result of two anonymous
written complaints that detailed employee misconduct, Record
Documents 14-3 & 17-6. At least nine employees were
terminated as a result of this investigation, including
Plaintiff. At the time of her termination, Plaintiff was 53
years old. Record Document 17-4, p. 8.
on the foregoing facts, Plaintiff filed this suit against
Sam's Town alleging discrimination because of her age and
disability, in violation of the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S, C. §
621 et seq., Title VII of the Civil Rights Act of
("Title VII"), 42 U.S.C. § 2OOOe et
seq., and the Family and Medical Leave Act of 1993
("FMLA"), 29 U.S.C. § 2601 et seq. In
light of her claims, Defendant filed this Motion for Summary
judgment under Federal Rule of Civil Procedure 56 is
appropriate when the pleadings, answers to interrogatories,
admissions, depositions, and affidavits on file indicate that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law,
See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). When the burden at trial will rest on the
non-moving party, the moving party need not produce evidence
to negate the elements of the non-moving party's case;
rather, it need only point out the absence of supporting
evidence. See Id. at 322-323.
movant satisfies its initial burden of showing that there is
no genuine dispute of material fact with the motion for
summary judgment, the nonmovant must demonstrate that there
is, in fact, a genuine issue for dispute at trial by going
"beyond the pleadings" and designating specific
facts for support. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994). "This burden is not
satisfied with 'some metaphysical doubt as to the
material facts/" by conclusory or unsubstantiated
allegations, or by a mere scintilla of evidence. Id.
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). However, "[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1985) (internal citations omitted); Reid v. State Farm
Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986)
(the court must "review the facts drawing all inferences
most favorable to the party opposing the motion"). While
not weighing the evidence or evaluating the credibility of
witnesses, courts should grant summary judgment where the
critical evidence in support of the nonmovant is so weak and
tenuous that it could not support a judgment in the
nonmovant's favor. Little, 37 F.3d at 1075.
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. Pursuant to Local Rule 56.2, the party
opposing the motion for summary judgment must set forth a
"short and concise statement of the material facts as to
which there exists a 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.
argues that Plaintiff cannot establish a prima facie case for
any of her claims.
ADEA makes it unlawful for an employer "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
age." 29 U.S.C. § 623(a)(1). The parties have
argued their respective positions under the McDonnell
Douglas burden-shifting framework. See Jackson v.
Cal-W. Packaging Corp., 602 F.3d 374, 378 (5th Cir.
2010) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)). Under this framework, Plaintiff must first
establish a prima facie case of discrimination. Then, the
burden shifts to Defendant to produce evidence that Plaintiff
was terminated for a nondiscriminatory reason. If this burden
is met, Plaintiff must then show the legitimate reason
offered by the Defendant was not its true reason, but was
pretext for discrimination. Id. at 378 n.12 (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142-43 (2000)). "It is at this third stage that the
plaintiff must demonstrate that age was the 'but-for'
cause of the defendant's employment decision,
notwithstanding the defendant's putative
non-discriminatory reason for the decision." Dubea
v. Sch. Bd. of Avoyelles Par., 546 Fed.Appx. 357, 360
(5th Or. 2013) (citing Reed v. Neopost USA, Inc.,
701 F.3d 434, 439-40 (5th Cir. 2012)).
prove a prima facie case of age discrimination, Plaintiff
must show that she was: (1) discharged; (2) qualified for the
position; (3) within the protected age group at the time of
the discharge; and (4) either replaced by someone younger or
outside the protected class, or otherwise discharged because
of her age. Phillips v. Leggett & Piatt, Inc.,
658 F.3d 452, 455 (5th Cir. 2011) (citing Rachid v. Jack
In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004)).
The only element disputed by Defendant is the last. Defendant
argues that Plaintiff does not know whether she was replaced
by someone younger and has no evidence that she was otherwise
discharged because of her age.
Plaintiff's replacement, Defendant represents that
several custodians were hired, but none specifically to
replace Plaintiff. Record Document 5, p. 3. Plaintiff claims
that her replacement is unknown because Defendant fired and
hired multiple employees over the six-month period after her
termination. Record Document 17, p. 4. Plaintiff then states
that three of the individuals hired "were close to [her]
age, and two of them were terminated within 2 hours of
hire." Id. Without further explanation,
Plaintiff claims she has alleged a prima facie case of age
cites Defendant's discovery responses as her source of
information regarding employees hired after her termination.
These responses show that between March 2015 and December
2015, Defendant hired five custodians: Mary Taylor, age 54;
Michelle Edden, age 61; Angela Cooper, age 46; Naudius
Bolden, age 31; and Rosemary Miller, age 51. Record Document
17-3, pp. 3-4. Plaintiff was 53 years old at the time of her
termination; thus, two of the five individuals hired were
older than Plaintiff at the time she was terminated. While
Defendant's discovery responses indicate that Michelle
Edden was terminated the same day she was hired, they also
indicate that Mary Taylor, the other individual hired in 2015
who was older than Plaintiff, remains an active
employee. Id. Furthermore, Defendant cites
Plaintiffs deposition testimony wherein she admits that she
does not know who replaced her, but "just believe[s] it
was someone younger than [her]." Record Document 14-2,
p. 24. Additionally, Plaintiff has not stated any facts
demonstrating that age was even a factor in the decision to
terminate her and therefore cannot show that she was
"otherwise discharged because of her age."
Defendant cites the following exchange taken from
Q: ... Why do you think you were discriminated against
because of your age?
A: Because they fired me.
Q: So but why do you think that your age played a role in the
A: Well, at that time, when I said that I really didn't
know for wrongful termination. I said my age because I guess
I was getting older, I don't know.
Q: Did anyone [at] work ever make any comments to you about
Q: Do you know who replaced you?
Q; Is - as you sit here today is there anything else that you
think lead [sic] you to believe that your age was part ...