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Terry v. Acadiana Concern for Aids Relief Education and Support Inc.

United States District Court, W.D. Louisiana, Lafayette Division

April 26, 2019

Terry
v.
Acadiana Concern For Aids Relief Education And Support Inc DBA Acadiana CARES

          Michael J. Juneau Judge.

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.

         Before the Court, on referral from the district judge, is a Motion To Dismiss Acadiana Concern For Aids Relief Education and Support, Inc. D/B/A Acadiana C.A.R.E.S. (“Acadiana C.A.R.E.S.”) [Rec. Doc. 12] and a Memorandum in Opposition filed by Plaintiff, Gale E. Terry (“Terry”) [Rec. Doc. 14]. Acadiana C.A.R.E.S. previously filed a motion to dismiss on January 18, 2019. R. 4. On February 8, 2019, Plaintiff filed a Consent Motion to File a Supplemental Amending and Restated Complaint (“amended complaint”). R. 11. In granting the Consent Motion to file the amended complaint, the Court denied the motion to dismiss without prejudice allowing Defendant to re-urge a motion to dismiss if appropriate. R. 10. The Court will consider Defendant's second Motion To Dismiss as follows.

         I. FACTUAL BACKGROUND

         Louisiana, through its Department of Health, established a STD/HIV Program (“SHP”) to assist in STD/HIV prevention and to monitor disease trends. Louisiana, through the SHP, contracts with regional facilities to accomplish its mission. Acadiana C.A.R.E.S. is a non-profit corporation that holds a long-time contract with Louisiana through the SHP. R. 11, ¶¶2, 4. Acadiana C.A.R.E.S. employs Field Surveillance Epidemiologists to collect and report on HIV/AIDS cases in Louisiana. On January 2, 1991, Plaintiff became employed with Acadiana C.A.R.E.S. as a Field Surveillance Epidemiologist. Plaintiff was assigned to Baton Rouge originally and subsequently New Orleans and the North Shore. She is currently assigned to Regions II, IX.

         On or about July 31, 2017, Susan Brodie was assigned to supervise the Field Surveillance Epidemiologists. Id. at ¶7. Brodie had “immediate and successively higher authority” over Plaintiff. Id. Plaintiff was 72 years old at the time. Id. at ¶8. Plaintiff alleges that on August 10, 2017, Brodie inquired about her age and when she was going to retire. Id. At that time Brodie told Plaintiff how much her mother enjoyed her retirement. Id. On April 12, 2018, her second visit to Plaintiffs office in Slidell, Brodie again talked about her mother's contentment with retirement. Id. Plaintiff further alleges that Brodie continued to make inquiries regarding Plaintiffs retirement. Id.

         Plaintiff also alleges that shortly after she became her supervisor, Brodie began requesting that she collect and report protected health information, including reasons for testing and diagnosis of all persons that were administered an HIV test, even those that were found to be HIV negative. Plaintiff told Brodie that she could not provide the information because it would violate HIPAA, Louisiana's Sanitary Code, and other privacy laws/rights. R. 11, at ¶11. She alleges that Brodie threatened her with the loss of her job if she did not provide the information. Id. at ¶12.

         Plaintiff alleges she continued to refuse to comply with the aforementioned requests and also continued to complain about Defendant's “unlawful treatment because of her age.” Id. at ¶13. In particular, on November 1, 2017, she sent an email to the CEO, Claude Martin, stating her intention to file a grievance related to her claims of age-based discrimination. Id. at ¶15. She further alleges another similarly situated co-employee, Gayle Norris, had an in-person meeting with various officials with the Louisiana Office of Public Health. Id. On November 2, 2017, the Louisiana Office of Public Health Regional Medical Director/Regional Administrator, Region VII, OPH, Dr. Martha Whyte, responded by email to Plaintiff, Brodie, and Brodie's supervisor, Jessica Fridge, regarding Brodie's orders. Id. On November 3, 2017, Brodie sent an email to Plaintiff and Norris stating that, after review of Dr. Whyte's email, “the management” of the HIV/STD Program, Dr. DeAnn Gruber, Director of the HIV/STD Program, Chaquetta Johnson, NP, and Jessica Fridge, Surveillance Manager, “need to discuss what you truly understand and what is expected in proper documentation and investigation .... on November 6, 2017. Id. at ¶16.

         Plaintiff alleges that thereafter Brodie ordered her to obtain HIPAA protected information on individuals who were not HIV positive and then enter that person's information into the database. Id. at ¶17. Plaintiff alleges such an order was in violation of Federal and Louisiana law, including La. Const. Article 1, § 5, “Right to Privacy”, La. Civ. C. Article 2315, invasion of privacy, La. R.S. 40:4 et seq., Sanitary Code, La. R. S. 40:1165.1, “Health Care Information Records”, and La. R.S. 40:1171.1 et seq., “Confidentiality of HIV Test Results.” Id.

         On November 15, 2017, Defendant issued a Bulletin to Plaintiff and her coworkers giving examples of the information it wanted gathered and logged into the database. Id. at ¶18. Plaintiff alleges the order was for employees to use their “State credentials to essentially force medical personnel to identify the specific non-HIV condition of their patients” in order for Defendant to collect and report information on HIV negative individuals and children on Prep (a pre-exposure prophylaxis medication for HIV negative persons), including the PrEP start date, if available, the sexual orientation of the individual, and other risk information regarding the individual. Id. at ¶27. Plaintiff states she ceased entering such information on PrEP based on HIPAA and Louisiana's privacy law. Id. at ¶18.

         On December 4, 2017, Plaintiff filed a formal grievance based on age discrimination and whistle-blower reprisal retaliation. Also on that date, Acadiana C.A.R.E.S. placed Plaintiff on a supervisory plan/probation through June 2, 2018, pending her termination. Id. at ¶¶19, 20. Plaintiff alleges that as a result of her grievance, she was required to attend a meeting with Gruber and Johnson on December 18, 2017. Id. ¶22. During the meeting, Gruber and Johnson refused to discuss Brodie's requests for the allegedly unlawful information. Id. By letter dated December 22, 2017, they held that the supervisory plan would be upheld. Id.

         Thereafter, Defendant continued to require Plaintiff to perform the aforesaid investigations. Id. at ¶24. Following her refusals to perform the investigations, Plaintiff alleges she was further harassed by Defendant. Id. at ¶25. Plaintiff alleges she was ordered to drive from her residence in Mississippi each morning, clock in at the Slidell office, and then service her territory at a far different location than the Slidell office. Id. at ¶¶ 26, 29. Plaintiff characterizes her retaliatory and age-based harassment resulting from Defendant's repeated requests to force the investigations as “grave.” Id. at ¶29. As a result she requested a reduced, thirty (30) work schedule, which under Defendant's policy, allowed her to remain a full-time employee and receive full-time benefits. Brodie refused her request even though she alleges others similarly situated (except they did not complain about the “unlawful” conduct) had been granted the same. Id. She alleges Defendant's refusal was out of retaliation and done in reprisal for refusing, protesting and reporting the unlawful actions at issue to her employer and the State of Louisiana. Id. at ¶30.

         On July 26, 2018, Plaintiff filed Charges of Discrimination with the EEOC and LCHR. Id. at ¶¶9, 10; 12-2. She was issued a Right To Sue letter from the EEOC on September 5, 2018. Thereafter, she filed the instant action on November 19, 2018. R. 1. Plaintiff alleged a claim for age-based harassment and retaliation under the ADEA as well as a State based claim under 23:967, the Louisiana Whistleblower Statute, as she was “placed on a supervisory plan pending termination, threatened, punished, and denied a reduced work schedule because of her age and protected activities.” R. 14, p. 7.

         II. LEGAL STANDARD

         To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

         A legally sufficient complaint need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555.

         III. DISCUSSION

         A. AGE DISCRIMINATION (ADEA)

         Plaintiff sets forth claims of discrimination/harassment and retaliation under the ADEA. She alleges that she was the target of age-based discrimination, harassment, hostile work environment and retaliation by her direct supervisor, Brodie, and other supervisors at Acadiana C.A.R.E.S.. Acadiana C.A.R.E.S. contends that Plaintiff's allegations as to her ADEA claims are “purely conclusory and fail to nudge her ADEA claims across the line from conceivable to plausible.” R. 12-1, p. 9.

         1. Failure to Exhaust

         In its motion Acadiana C.A.R.E.S. initially contends that Plaintiff failed to exhaust her administrative remedies in that she did not describe each discrete act of discrimination in the charge. Specifically, it argues that she did not discuss having to “clock in” for work or the denial of her request to work a reduced schedule. In support of its argument, Defendant points to the Charge of Discrimination that Plaintiff filed with the EEOC, which is attached to Defendant's Motion as Exhibit 1. R. 12-2. The Court considers this exhibit part of the pleadings because it directly relates to the charges made in the amended complaint and the right to sue letter attached. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (documents “attache[d] to a motion to dismiss are considered part of the pleadings, if they are referred to in the plaintiff's complaint and are central to her claim[s]”).

         To bring a claim under the ADEA, a plaintiff must first exhaust her administrative remedies. Julian v. City of Houston, Tex., 314 F.3d 721, 725 (5th Cir. 2002). To properly exhaust their administrative remedies, the employee must file a charge with the EEOC. See Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006). The primary purpose of this exhaustion requirement is to trigger both the investigatory and conciliatory procedures of the EEOC, in attempt to reach a non-judicial resolution of the alleged discrimination. See id. at 789.

         While the Fifth Circuit does not require a plaintiff to check a certain box, recite specific language, or allege a [prima face] case before the EEOC, it does expect that after a “somewhat [broad]” reading of the charge, it can reasonably identify claims expected to grow from the charge. See id. at 792. The claims expected to reasonably grow from the charge set the scope of the plaintiff's complaint. See Clayton v. Rumsfeld, 106 Fed.Appx. 268, 271 (5th Cir. 2004). In other words, the scope of a plaintiff's complaint is limited by the scope of their EEOC charge. See id. If plaintiffs were allowed to go beyond the scope of their charges, the primary purpose of the exhaustion requirement would be circumvented, and the charged party would be deprived of notice. See id.

         The crucial element of a charge of discrimination is the factual statement contained therein. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir.1970). Next, the administrative charge must be viewed in its broadest reasonable sense in order effectively to attempt to eliminate, by the administrative process, possible discriminatory practices and policies. Id. at 467. One of the central purposes of the charge is to put the employer on notice of the existence and nature of the charges. Manning v. Chevron Chem. Co., 332 F.3d 874, 878-89 (5th Cir.2003).

         In the Charge of Discrimination, Plaintiff checked the boxes for discrimination based on race, retaliation, and age. Defendant contends that Plaintiff failed to exhaust her age and retaliation claims. In that regard, Plaintiff alleged that after she filed a grievance regarding her supervisor's actions, including those of age discrimination, she suffered harassment and retaliation by being placed on a 6-month supervisory plan without explanation. After the probation period ended, she never received documentation indicating she was removed from probation. As to her allegations that she was required to “clock in” for work at the office and denied a request to work a reduced schedule in retaliation for her repeated protests, Id. at ¶¶20, 28, 29, the Court finds that these claims are reasonably within the scope of Plaintiffs EEOC charge of age discrimination/harassment and retaliation.[1] See Sanchez, 431 F.2d at 466-67 (“the Commission will seek relief from those unlawful employment practices which are like or related to the charge filed with the Commission and which grow out of proceedings before the Commission”).

         Therefore, Defendant's claim for failure to exhaust administrative remedies will be denied.

         2. ...


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