Ross v. Loyola Univ. New Orleans

• Decision Date: 09 September 2022
• Docket Number: Civil Action 22-1731 DIV. (2)
• Parties: SYLVAN ROSS v. LOYOLA UNIVERSITY NEW ORLEANS
• Court: U.S. District Court — Eastern District of Louisiana

SYLVAN ROSS
v.
LOYOLA UNIVERSITY NEW ORLEANS

Civil Action No. 22-1731 DIV. (2)

United States District Court, E.D. Louisiana

September 9, 2022

ORDER AND REASONS

DONNA PHILLIPS CURRAULT UNITED STATES MAGISTRATE JUDGE

Before me is a Partial Motion to Dismiss filed by Defendant Loyola University New Orleans (“Loyola”). ECF No. 5. This matter was referred for all proceedings including entry of judgment in accordance with 28 U.S.C. § 636(c) upon the written consent of all parties. ECF No. 8. Plaintiff Sylvan Ross (“Ross”) timely filed an Opposition Memorandum. ECF No. 11. No party requested oral argument, and the Court agrees that oral argument is unnecessary.

Considering the record, the submissions and arguments of counsel, and the applicable law, Loyola's motion is GRANTED IN PART AND DENIED IN PART for the reasons stated herein.

I. BACKGROUND

Ross filed this employment discrimination suit against Loyola alleging disability, age and race discrimination under the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII and 42 U.S.C. § 1981, and related state law. ECF No. 1, ¶ 1. The Complaint indicates Ross contacted the EEOC on December 3, 2021, filed an Amended Charge on March 15, 2022, and received a determination letter dated March 18, 2022. Id. ¶¶ 8-9; ECF No. 1-3. The earliest date of discrimination is identified as May 20, 2021. ECF No. 1-3, at 1.

A. Plaintiff's Complaint

According to the allegations in Plaintiff's complaint, all of which must be accepted as true for purposes of this motion, Ross is a 67-year-old African American who sustained an injury to

1

his right foot and ankle during his prior military service. ECF No. 1 ¶ 10, 13. He began working at Loyola on April 3, 2006, as a plant engineer on its main campus. Id. ¶¶ 11-12. Although Ross experienced no pain when hired, with the addition of job duties to his position over time, he began to experience pain from his pre-existing injury. Id. ¶¶ 14-17. Ross notified his supervisor of his worsening injury in 2014, after which he was scheduled to meet with the supervisor and Loyola's HR Director and asked to bring medical documentation evidencing his injury. Id. ¶¶ 18-20. Ross brought medical documentation indicating that he should refrain from excessive standing, walking or running, after which he was provided an accommodation, specifically, he was assigned to the law school campus (except for rare instances of main campus assignment to cover for absent coworkers during which he was allowed to remain in the plant) and he was allowed to take breaks when needed in the event of discomfort from his injury). Id. ¶¶ 21-23.

Following a personnel change, Plaintiff's new supervisor began to schedule his shifts on the main campus, and Plaintiff was asked to provide updated medical documentation to support his disability. Id. ¶¶ 24-27. Plaintiff provided updated medical documentation on or before May 8, 2019, again indicating that he should refrain from excessive standing, walking and running and adding a requirement that he wear an ankle brace. Id. ¶ 28. Plaintiff's May 20, 2021 medical documentation indicated the same restrictions. Id. ¶ 36-37. During an April 2021 meeting, his immediate supervisor asked him about his disability and whether he had considered retirement. Id. ¶¶ 30-33. Later, during a June 2, 2021 meeting, Loyola's HR Director notified Plaintiff that it was partially rescinding the prior accommodation and informed Plaintiff that he would be assigned to the main campus and required to walk the campus grounds. Id. ¶ 40. During this meeting, the HR Director told him that at his age, he should consider retiring and that she had heard he would retire if he were given a severance package, but Loyola was not providing severance packages. Id. ¶¶ 43-44.

2

Between June and November 2021, Plaintiff was assigned to work at both the main campus and law school campus, and when assigned to the main campus, he was expected to perform his job duties without any accommodation, but he had difficulty doing so. Id. ¶¶ 45-46. Plaintiff was notified that he was being assigned full-time to the main campus and that his accommodation was fully rescinded. Id. ¶¶ 47-52. Plaintiff resigned, which he characterizes as constructive discharged, after which he was replaced by a younger Caucasian employee. Id. ¶¶ 52-56, 61. He states that he was one of the oldest and the only African American employee in the department at the time of his resignation. Id. ¶¶ 55, 58.

Plaintiff contends that he was subjected to discriminatory and/or disparate treatment when he was not given a severance package and a white employee was and when he endured racially offensive comments on June 25, 2007, September 2008, and 2015-16. Id. ¶¶56-57. Plaintiff identifies seven causes of action: (1) disability discrimination in violation of the ADA; (2) disability discrimination in violation of state law; (3) age discrimination in violation of the ADEA; (4) age discrimination in violation of state law; (5) race discrimination in violation of Title VII; (6) race discrimination under state law; and (7) race discrimination under § 1981. Id. ¶¶ 63-94.

B. The Parties' Contentions on Motion to Dismiss

Defendant moves to dismiss Plaintiff's state law claims (counts 2, 4, and 6) because Louisiana's Employment Discrimination Laws do not apply to Loyola, the Title VII and § 1981 claims (counts 5 and 7 respectively) based on events that render the claims time-barred, and the claim for compensatory and punitive damages under the ADEA. ECF No. 5, 5-2, at 1. Specifically, as a private, religious, non-profit educational institution, Loyola is exempt from Louisiana's Employment Discrimination Law's coverage. ECF No. 5-2, at 4-6. With regard to

3

counts 5 and 7, Defendants allege that Plaintiff's Title VII claims and § 1981 claims are time barred to the extent any Title VII claim is based on events occurring before 2021, as Plaintiff's EEOC charge fails to identify any alleged acts of discrimination occurring before 2021, as are any § 1981 claims. Id. at 6-9. Finally, Defendants contend that the ADEA does not provide a basis for punitive damages or general compensatory damages for pain and suffering. Id. at 9-10.

In response to Defendant's Motion to Dismiss, in accordance with Fed.R.Civ.P. 15(a)(1)(B), Plaintiff filed an Amended Complaint asserting only four causes of action: (1) claims of disability discrimination (e.g., failure to accommodate) under the ADA, (2) age discrimination under the ADEA, (3) race discrimination (intentional discrimination, disparate and adverse treatment) under Title VII, and (4) race discrimination under § 1981 (intentional discrimination). ECF No. 9, ¶¶ 63-85. The Amended Complaint omits the state law claims previously asserted and does not seek compensatory or punitive damages under the ADEA, mooting two of the four...