United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
the Court is a Motion for Summary Judgment (Rec. Doc.
31) filed by defendant, The Administrators of the
Tulane Educational Fund (“Tulane”). Plaintiff Sally
Main opposes the motion. The motion, noticed for submission
on April 18, 2018, is before the Court on the briefs without
oral argument. For the reasons that follow, the motion is
an action brought under federal law by plaintiff Sally Main
for age (60) and disability discrimination (post-traumatic
stress disorder or PTSD) against her former employer,
Tulane. Plaintiff began working for Tulane in 1982
as a Senior Curator for the Newcomb Art Gallery on its New
Orleans campus. (Rec. Doc. 1, Complaint ¶ 5). Tulane
eliminated Plaintiff's position effective July 30, 2015.
(Rec. Doc. 31-6, Termination letter 6/24/15). Plaintiff was
advised that the decision to eliminate her position was the
result of the restructuring of the Newcomb Art Gallery given
an assessment received from the American Alliance of Museums.
to Plaintiff, her difficulties at Tulane began in August 2014
when Tulane hired Dr. Monica Ramirez-Montagut to be the new
Director of the Newcomb Art Gallery.Plaintiff noted at the outset
that although pleasant enough, Ramirez-Montagut had a
totalitarian, authoritative, and uncompromising attitude.
(Rec. Doc. 31-2, Main deposition at 88). Plaintiff reported
directly to Ramirez-Montagut. But in light of the holiday
break in December 2014, and given that Plaintiff was on leave
(FMLA and then non-FMLA) from January-June 2015,
Ramirez-Montagut only supervised Plaintiff for four months.
(Rec. Doc. 31-6, Ramirez-Montagut affidavit ¶ 15).
support of her claims Plaintiff has identified certain
“discriminatory” incidents that occurred during
the time that she reported to Ramirez-Montagut. First, Anne
Banos had contacted Plaintiff about putting some art work in
the university's president's office. In the past
Plaintiff had handled this type of request herself. Plaintiff
began to solicit loaner pieces from museums not affiliated
with Tulane. (Rec. Doc. 31-2, Main deposition at 119).
Ramirez-Montagut found out about this project and demanded
that Plaintiff send her Banos's email so that she could
handle the request herself. In Plaintiff's opinion
Ramirez-Montagut used art pieces that were
non-functional. (Id. at 119-20).
there was an incident involving Sally Kenney and some artwork
at the Newcomb dean's house. Kenney, who was Executive
Director of the Newcomb College Institute, had contacted
Plaintiff to remove the artwork in light of a pending
demolition. When the demolition plans changed Kenney demanded
to have the artwork replaced. When Plaintiff explained that
Kenney would have to pay for additional help to do that,
Kenny “lit into [Plaintiff], screaming that she
wasn't paying for anything.” (Rec. Doc. 31-2, Main
deposition at 123). At this point Ramirez-Montagut got
involved and decided to curate the art work herself. Kenney
then complained that Plaintiff was rude to her. (Id. at
asked what part of Ramirez-Montagut's behavior with
respect to the Kenney incident was discriminatory, Plaintiff
explained that Ramirez-Montagut did not understand people
with PTSD. (Rec. Doc. 31-2, Main deposition at 125). “I
think she thinks that you can speak to someone any way you
want.” (Id.). Plaintiff did not feel that
treating others with respect was a priority for
Ramirez-Montagut, and Plaintiff perceived that the
aggressive, hostile, and nasty behavior just kept
in late October 2014, Ramirez-Montagut instructed Plaintiff
via email to place a Gene Koss sculpture in an outdoor
breezeway. (Rec. Doc. 48-1, Main deposition Exh. 11). On
November 10, 2014, Ramirez-Montagut sent another email to
Plaintiff in which she reprimanded her for not following
instructions and directions regarding the location of the
Koss sculpture and other matters. (Id.). Plaintiff
responded to Ramirez-Montagut with a blistering email in
which she defended herself regarding several incidents that
she characterized as either not having happened or outside of
her control.(Id.). Plaintiff closed with,
“I am concerned with your repeated use of hostile and
disrespectful language in communicating with me.
Because of my PTSD diagnosis,
I'm asking that you desist from future written and verbal
attacks and let's find a way of communicating where
questions are asked instead of accusations thrown.”
(Id.) (emphasis added).
asked what part of Ramirez-Montagut's behavior with
respect to this incident was discriminatory, Plaintiff
explained that “it's the hostility and the way you
speak to people.” (Rec. Doc. 31-2, Main deposition at
testified that prior to this email she was not aware that
Plaintiff had been diagnosed with PTSD and nothing in the
record disputes this assertion.(Rec. Doc. 48-2,
Ramirez-Montagut deposition at 216). Ramirez-Montagut replied
to the email: “[I]n regard to your PTSD diagnosis, if
you feel you are in need of a reasonable accommodation
related to a potential disability, please contact the Office
of Disability Services to file a request for a reasonable
accommodation.” (Rec. Doc. 48-1, Main deposition
receiving this email, Plaintiff did speak with two
individuals (Patrick and Shawna) in Disability Services about
her difficulties with Ramirez-Montagut but she did not
request any particular accommodation. (Rec. Doc. 31-2, Main
deposition at 167; 189). Plaintiff recognized that “you
can't tell someone how to behave or how to write to you,
but [she] just wanted some sort of acknowledgement that [the
status quo] wasn't working.” (Id. at
167-68). Plaintiff's preferred outcome or desired
“accommodation” was for “things to be less
hostile.” (Id. at 168).
Plaintiff contends that Ramirez-Montagut made unreasonable
demands on her concerning a database of digitized inventory
for the gallery. Ramirez-Montagut told Plaintiff that she was
not doing enough to complete the project. (Rec. Doc. 31-2,
Main deposition at 142). Ramirez-Montagut never attributed
this to age or disability, however. (Id.).
has no direct evidence of discrimination based on age or
disability. (Rec. Doc. 31-2, Main deposition at 87, 133,
142). When asked why she believed that Ramirez-Montagut's
treatment of her was based on age or disability as opposed to
mere personal animosity, Plaintiff explained that
Ramirez-Montagut simply does not like old people.
(Id. at 132). When asked to explain why she came to
that conclusion, Plaintiff elaborated that Ramirez-Montagut
is disrespectful, rude, hostile, and angry. (Id. at
her termination Plaintiff filed a charge of discrimination
with the EEOC claiming age discrimination, disability
discrimination, and retaliation. (Rec. Doc. 48-1, Exhibit 2).
The instant complaint followed.
trial is scheduled to commence on July 16, 2018.
now moves for summary judgment on all claims.
judgment is appropriate only if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, " when
viewed in the light most favorable to the non-movant,
"show that there is no genuine issue as to any material
fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d
754, 759 (5th Cir. 2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute
about a material fact is "genuine" if the evidence
is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477
U.S. at 248). The court must draw all justifiable inferences
in favor of the non-moving party. Id. (citing
Anderson, 477 U.S. at 255). Once the moving party has
initially shown "that there is an absence of evidence to
support the non-moving party's cause, " Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986), the
non-movant must come forward with "specific facts"
showing a genuine factual issue for trial. Id.
(citing Fed. R. Civ. P. 56(e); Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing
SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
faced with a well-supported motion for summary judgment, Rule
56 places the burden on the non-movant to designate the
specific facts in the record that create genuine issues
precluding summary judgment. Jones .v Sheehan, Young,
& Culp, P.C., 82 F.3d 1334, 1338 (5th
Cir. 1996). The district court has no duty to survey the
entire record in search of evidence to support a
non-movant's position. Id. (citing Forsyth
v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1992);
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307
(5th Cir. 1988)).