United States District Court, W.D. Louisiana, Lafayette Division
Michael J. Juneau Judge.
REPORT AND RECOMMENDATION
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
AGE DISCRIMINATION (ADEA)
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.
Failure to Exhaust
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
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.
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
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).
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. 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”).
Defendant's claim for failure to exhaust administrative
remedies will be denied.