Payne v. Hammond City et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JENNIFER PAYNE,
Plaintiff
CIVIL ACTION
VERSUS 	NO. 24-1857
HAMMOND CITY,
Defendant
SECTION: “E” (3)
ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Defendant City of
Hammond (“Defendant”). 1 Plaintiff Jennifer Payne (“Plaintiff”) filed an opposition 2 and
Defendant filed a reply. 3 For the following reasons, the motion is GRANTED.
BACKGROUND
Based 	on 	the 	Defendant’s 	summary 	judgment 	motion 	and 	the 	Plaintiff’s
opposition, as well as the Joint Pretrial Order, 4 it is clear the parties agree on these basic
facts. Plaintiff was hired by the Hammond Police Department on July 3, 2000 as a
Communications Officer. 5 She was reclassified as a Police Officer on November 20, 2002
and was promoted to Sergeant in 2017, and probationary Lieutenant on February 18,
2022.6
Plaintiff received a cervical injection on September 1, 20227 and she was placed on
sick leave.8 From September 5-10, 2022, Plaintiff was on a cruise to Mexico. 9 On
1 R. Doc. 66.
2 R. Doc. 68.
3 R. Doc. 70.
4 R. Doc. 81.
5 Id. at ¶ 10.
6 Id. at ¶ ¶ 15, 16, 17.
7 Id. at ¶ 22; Plaintiff’s summary of material facts states this occurred on September 2, 2022. R. Doc. 81 at
p. 2.
8 R. Doc. 81, uncontested material facts, at ¶ 24.
9 Id. at ¶ 37.
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September 19, 2022, Plaintiff underwent a second cervical injection procedure.10 On
December 27, 2022, Payne underwent spinal fusion surgery performed by Dr. Eric
Oberlander.11
On May 3, 2023, Plaintiff initiated an EEOC Complaint alleging discrimination on
the basis of her disability and gender. 12 On May 9, 2023, the City was notified of this
charge.13 On May 25, 2023, Plaintiff was demoted two ranks from probationary lieutenant
patrol officer for two years, ostensibly for a sick leave violation.14 Plaintiff was terminated
on December 18, 2023,15 but continued to receive paid sick leave and benefits through
December 31, 2023.16
Plaintiff makes several claims against Defendant. 17 In count one, Plaintiff brings a
sex discrimination claim under Title VII of the Civil Rights Act (“Title VII”). 18 In count
two, Plaintiff brings a disability discrimination claim under Title I of the Americans with
Disabilities Act (“ADA”). 19 In count three, Plaintiff brings a disability discrimination claim
under the Louisiana Employment Discrimination Law (“LEDL”).20 In count four, Plaintiff
brings retaliatory demotion under Title VII and retaliatory discharge and wrongful
termination claims under Title VII and the LEDL.21 Defendants seek summary judgment
10 Id. at p. 7.
11 Id. at p. 3; ¶ 1. The parties later state at ¶ 57 that this surgery occurred on December 28, 2022.
12 Id. at ¶ 80; Plaintiff’s summary of material facts states this occurred on May 2, 2023. R. Doc. 81 at p. 2.
13 R. Doc. 81, uncontested material fats, at ¶ 88.
14 Id. at ¶ 91.
15 Id. at ¶ 123.
16 Id. at p. 13.
17 The Court granted Defendant’s partial Motion to Dismiss some of Plaintiff’s claims, dismissing (1)
Plaintiff’s claims for punitive damages under all counts; (2) Plaintiff’s claim for compensatory damages
under the ADA; (3) Plaintiff’s claim under the Rehabilitation Act; (4) Plaintiff’s state law retaliatory
demotion claim; and (5) Plaintiff’s LEDL retaliation claims based on sex-discrimination and disability-
discrimination. The Court also dismissed Plaintiff’s hostile work environment claims under Title VII, the
ADA, and the LEDL. R. Doc. 36 at p. 23.
18 R. Doc. 22 at ¶ 29.
19 Id. at ¶ 38.
20 Id. at ¶ ¶ 42-43.
21 Id. at p. 11.
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on all claims federal and state. 22
In response to these claims, Defendant argues that Plaintiff failed to comply with
HPD’s policies regarding returning to work after sick leave and, as a result, the Defendant
could not assign her to light duty. 23 Defendant further argues that it applies a gender-
neutral sick leave policy that did not confine Plaintiff to her home, but rather only
required her to notify HPD when leaving her home. 24 Furthermore, Defendant states that
any adverse employment actions taken against the Plaintiff were not instances of sex
discrimination nor were they taken in retaliation for her EEOC charge. Rather, Defendant
claims to have demoted her due to her violation of HPD’s sick leave policy, and to have
dismissed her because of her inability to carry out essential job functions due to her
medical condition.25
LEGAL STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 26 “An issue is material if its resolution could affect the outcome of the action.”27
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.” 28 All reasonable inferences are drawn in favor of the nonmoving party. 29
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
22 R. Doc. 66. at p. 1.
23 R. Doc. 66-1 at p. 32.
24 Id. at 5.
25 R. Doc. 66-2 at p. 22-23.
26 F ED . R. CIV . P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
27 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
28 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).
29 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
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party, thus entitling the moving party to judgment as a matter of law. 30
If the dispositive issue is one for which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 31 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 32
On the other hand, if the dispositive issue is one on which the nonmoving party
will bear the burden of persuasion at trial, the moving party may satisfy its burden of
production by either (1) submitting affirmative evidence that negates an essential element
of the nonmovant’s claim, or (2) demonstrating there is no evidence in the record to
establish an essential element of the nonmovant’s claim. 33 When proceeding under the
first option, if the nonmoving party cannot muster sufficient evidence to dispute the
movant’s contention that there are no disputed facts, a trial would be useless, and the
moving party is entitled to summary judgment as a matter of law. 34 When, however, the
30 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
31 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
32 Celotex, 477 U.S. at 322-24.
33 Id. at 331-32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at 322-24, and
requiring the Movers to submit affirmative evidence to negate an essential element of the nonmovant’s
claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential
element); Fano v. O’Neill, 806 F.2d 1262, 1266 (5th Cir. 1987) (citing Justice Brennan’s dissent in Celotex,
and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims on
summary judgment); 10A CHARLES A LAN W RIGHT, ARTHUR R. M ILLER & M ARY K AY K ANE , FEDERAL P RACTICE
AND P ROCEDURE § 2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority and
dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how
the standard was applied to the facts of the case.” (internal citations omitted)).
34 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1980); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986).
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movant is proceeding under the second option and is seeking summary judgment on the
ground that the nonmovant has no evidence to establish an essential element of the claim,
the nonmoving party may defeat a motion for summary judgment by “calling the Court’s
attention to supporting evidence already in the record that was overlooked or ignored by
the moving party.”35 Under either scenario, the burden then shifts back to the movant to
demonstrate the inadequacy of the evidence relied upon by the nonmovant. 36 If the
movant meets this burden, “the burden of production shifts [back again] to the
nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving
party’s papers, (2) produce additional evidence showing the existence of a genuine issue
for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f).” 37 “Summary judgment should be
granted if the nonmoving party fails to respond in one or more of these ways, or if, after
the nonmoving party responds, the court determines that the moving party has met its
ultimate burden of persuading the court that there is no genuine issue of material fact for
trial.”38
Still, “unsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’” 39
35 Celotex, 477 U.S. at 332-33.
36 Id.
37 Id. at 332-33 & n.3.
38 Id.; see also First Nat’l Bank of Ariz., 391 U.S. at 289.
39 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (first citing Celotex, 477 U.S. at 324;
then Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994); then quoting Skotak v. Tenneco Resins, Inc., 953
F.2d 909, 915-16 & n.7 (5th Cir. 1992)).
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LAW AND ANALYSIS
I. 	Count I: Defendant is entitled to summary judgment on Plaintiff’s Title
VII sex discrimination claim.
A. 	Factual Background
Plaintiff alleges Defendant discriminated against her based-on her sex, in violation
of Title VII. Plaintiff claims this discrimination materialized in three forms: Defendant’s
refusal to assign her to light duty but allowing male officers to work light duty,
Defendant’s holding her to different sick leave policy requirements than other male
officers, and Defendant’s disciplining her for sick leave violations while not disciplining
male officers who violated sick leave. 40
First, Plaintiff claims Defendant discriminated against her based on her sex by
denying her request for light duty on September 2, 202241 while assigning other male
officers to light duty around the same time.42 Second, Plaintiff claims Defendant
discriminated against her based on her sex by forcing her to adhere to HPD General Order
No. 140’s sick leave requirements while she was on extended sick leave in 2023, while not
requiring this of male officers. 43 Finally, Plaintiff states Defendant disciplined her with
demotion for her September 2022 sick leave violation while not punishing male officers
for the same sick leave policy violations.
The following facts are undisputed. On April 29, 2022, Plaintiff submitted a
vacation request to take a cruise on September 5-10, 2022. Plaintiff was unable to work
on September 2, 2022 due to receiving an epidural steroid injection; her absence was
designated 	as 	sick 	leave.44 	Payne 	submitted 	an 	attending 	physician 	report 	dated
40 R. Doc. 68-1 at ¶ 239; R. Doc. 68 at pp. 1, 13.
41 R. Doc. 68-3, Exh. 2.
42 R. Doc. 68 at p. 1.
43 R. Doc. 66-9 at Exh. 69, Payne at 238:18-14, 271:22-277:7; R. Doc. 66-10 at Exh. 72, Nos. 16-17.
44 R. Docs. 66-1 at ¶ ¶ 12, 14 (citing R. Doc. 66-4 at Exh. 5 at 10:22-11;17, 12:8-19); 68-1 at ¶ ¶ 12, 14.
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September 1, which approved her for limited duty on September 3-10 with physical
restrictions. 45 As this was Payne’s 32nd instance of sick leave and her 7th non-consecutive
sick leave period, she was required to see the city doctor before returning to work. 46
Captain Wayne Scivicque, one of Plaintiff’s supervisors during the relevant period of this
case, advised Plaintiff on September 2, 2022 that she was required to see the city doctor
before she could return to work.47 HPD General Order states: “Sick leave shall begin upon
notification…and continue until the employee returns to work.” 48 Plaintiff did not see the
city doctor prior to September 5, 2022.49 Plaintiff took a cruise on September 5-10, 2022. 50
Police Chief Edwin Bergeron did not authorize Payne to take a personal cruise while on
sick leave status.51 After this trip, Lieutenant David Mauro conducted an Internal Affairs
investigation into whether Plaintiff’s cruise violated sick leave policy; the investigation
found Plaintiff did violate the policy. 52 Plaintiff was demoted two ranks on May 25, 2023
for this violation.53
Plaintiff did not see the city doctor until October 5, 2022, when the city doctor
determined Plaintiff could not return to work pending MRI results. 54 On December 27,
2022 Defendant underwent a lumbar fusion surgery. 55 From September 21, 2022 to June
28, 2023, multiple physicians examined Plaintiff and subsequently submitted a series of
Attending Physician Reports (“APR”) stating that Plaintiff could not return to work until
45 R. Doc. 66-1 at ¶ 17; R. Doc. 68-1 at ¶ 17.
46 R. Docs. 66-1 at ¶ 24 (citing R. Doc. 66-4 at Exh. 7 at ¶¶25-28); 68-1 at ¶ 24.
47 R. Doc. 66-1 at ¶ 26; R. Doc 68-1 at ¶ 26.
48 R. Docs. 66-1 at ¶ 36 (citing R. Doc. 66-4 at Exh. 10); 68-1 at ¶ 36.
49 R. Docs. 66-1 at ¶ 30 (citing R. Doc. 66-4 at Exh 11 at COH_JP-000707-000708); 68-1 at ¶ 70.
50 R. Docs. 66-1 at ¶ 37 (citing R. Doc. 66-4 at Exh. 8, Exh. 11 at COH_JP-00708; R. Doc. 66-9 at Exh. 69,
Payne at 68:23-69:2); 68-1 at ¶ 37.
51 R. Doc. 81, uncontested material fats, at ¶ 37.
52 R. Docs. 66-1 at ¶¶ 53, 54, 59 (citing 66-4 Exh. 13, Exh. 14A at COH_JP-000279; R. Doc. 66 at 66-9 at
Exh. 69, Mauro at 7:4-16); 68-1 at ¶ ¶ 53, 54, 59.
53 R. Doc. 81, uncontested material fats, at ¶ 91.
54 R. Docs. 66-1 at ¶ 70 (citing R. Doc. 66-4 at Exh 11 at COH_JP-000707-000708); 68-1 at ¶ 70.
55 R. Doc. 81, uncontested material facts, at ¶ 1.
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further notice.56
On July 31, 2023, an attending physician report authored by Daniel Long P.A.
authorized Plaintiff to return to work on limited duty. 57 HPD General Order No. 140
further states: “Upon release from physician to return to duty from extended sick leave a
Fit for Duty [test] will be required ‘prior’ to one’s return to work and will be directed to a
facility by the City at the City’s expense.” 58 Although fit for duty testing was scheduled for
Plaintiff on August 24, 2023, this appointment was later cancelled due to a lack of medical
clearance from Plaintiff’s personal physician; 59 Plaintiff never completed fit for duty
testing. 60
Plaintiff claims Defendant discriminated against her by denying her September 2,
2022 light duty request while assigning male officers Ryan Ray, Patrick Tomberlin, and
Terry Sanchez to light duty work.61 She offers an affidavit from Ryan Ray, in which he
states that he worked light duty around the time Plaintiff requested such an assignment. 62
It is undisputed that Section B of HPD General Order No. 140 states that employees
shall not leave their residence except for stated reasons, including when the employee
receives written approval to leave her home after notifying Human Resources, the Chief,
or his designee.63 Plaintiff claims Defendant required her to abide by this policy while she
was on extended sick leave from September 2, 2022 until her termination on December
18, 2023, while allowing HPD officers Tom Mushinksy, Vince Jones, and David Mauro to
56 R. Docs. 66-1 at ¶ ¶ 69-80 (citing R. Doc. 66-5 at Exhs. 20, 23A, 23B, 24 (at COH_JP-001742-43), 23C,
25-30); 68-1 at ¶ ¶ 69-80.
57 R. Docs. 66-1 at ¶ 142 (citing R. Doc. 66-7 at Exh. 51); 68-1 at ¶ 142.
58 R. Docs. 66-1 a ¶ 145 (citing R. Doc. 66-4 at Exh. 10); 68-1 at ¶ 145.
59 R. Doc. 81, uncontested material facts, at ¶ 106.
60 R. Docs. 66-1 at ¶ 160 (citing R. Doc. 66-7 at Exh. 57B, at p. 1); 68-1 at ¶ 160.
61 R. Doc. 68-1 at p. 13; 66-9 at Exh. 69, Payne at 227:22-228:10; 236:16-238:17.
62 R. Doc. 68-10, Exh. 8.
63 R. Doc. 81 at ¶ 39.
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leave their homes without approval while on sick leave.64 She also points to Tom
Mushinsky and Vince Jones as male officers who violated sick leave policy but received
no discipline. 65
B. 	Legal Analysis
Under Title VII, it is unlawful to discriminate against an employee on the basis of
sex. 66 “In a disparate treatment case, an employee must establish that her employer had a
discriminatory intent or motive for taking a job-related action.”67 A plaintiff may use
either direct or circumstantial evidence to prove a case of intentional discrimination
under Title VII. 68 “Direct evidence is evidence which, if believed, proves the fact [of
intentional discrimination] without inference or presumption.” 69 If a plaintiff presents
direct evidence, the McDonnell Douglas test does not apply. 70 More often, a plaintiff relies
on circumstantial evidence, which requires the court to apply the McDonnell Douglas
burden-shifting analysis. 71 Under the McDonnell Douglas test, the plaintiff must first
demonstrate a prima facie case of discrimination.72 If successful, the burden of production
shifts to the defendant to show a legitimate and nondiscriminatory basis for the adverse
employment decision. 73 Finally, the plaintiff must then show the defendant’s proffered
reason is pretextual or unworthy of belief. 74
64 R. Doc. 66-9 at Exh. 69, Payne at 238:18-14, 271:22-277:7; R. Doc. 66-10 at Exh. 72, Nos. 16-17.
65 R. Doc. 66-10, at Exh. 72, at Interrog. Nos. 16-17.
66 42 U.S.C. 2000e-2(a).
67 Saketoo v. Administrators of Tulane Educational Fund, 31 F.4th 990, 997 (5th Cir. 2022) (citing Ricci v.
Destefano, 557 U.S. 557, 577 (2009)).
68 U.S. Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711, 714 n. 3 (1983).
69 Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (1993).
70 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)
71 Smith v. Touro Infirmary, 2015 WL 5093487 at *2 (E.D. La. Aug. 28, 2015) (applying McDonnell Douglas
analysis to determine motion for summary judgment).
72 Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994) (applying McDonnell Douglas test).
73 Id.
74 Id.
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To determine whether to apply the McDonnell Douglas analysis, the Court first
looks to whether the plaintiff has offered direct evidence of intentional discrimination.
“In the context of Title VII, direct evidence includes any statement or written document
showing a discriminatory motive on its face.” 75 	In this case, Plaintiff has not produced
any evidence that, on its face, shows Defendant acted in a discriminatory way. In the
absence of direct evidence showing Defendant’s alleged discriminatory motive, Plaintiff
relies on circumstantial evidence, and therefore the McDonnell Douglas framework
applies. 76
To make a prima facie case of sex discrimination under Title VII, Plaintiff must
show she (1) is in a protected class; (2) qualified for her job; (3) suffered an adverse
employment act; and (4) was treated less favorably than similarly situated employees
outside the protected class. 77 Defendant bases its Motion for Summary Judgment
regarding Plaintiff’s sex discrimination claims on the argument that Plaintiff has not
made a prima facie case on prong (4), that Plaintiff was treated less favorably than
similarly situated male employees. 78
As a result, the question of whether Plaintiff has made a prima facie case of sex
discrimination hinges on the fourth prong, whether Defendant treated her less favorably
than similarly situated male employees. Courts in this circuit require employees to have
suffered adverse employment actions under “nearly identical circumstances” for them to
be considered similarly situated. 79 However, courts should not interpret “nearly identical”
to mean “identical.”80 “The employment actions being compared will be deemed to have
75 Portis v. First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 329 (5th Cir. 1994).
76 See Smith v. Touro Infirmary, 2015 WL 5093487 at *2 (E.D. La. Aug. 28, 2015).
77 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
78 See R. Doc. 66-2 at pp. 14-20.
79 Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
80 Id.
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been taken under nearly identical circumstances when the employees being compared
held the same job or responsibilities, shared the same supervisor or had their employment
status determined by the same person, and have essentially comparable violation
histories.” 81 The plaintiff’s conduct that led to the adverse employment action must also
be “nearly identical” to that of the similarly situated employee who did not suffer an
adverse employment action. 82 Furthermore, the difference in conduct between the
employees cannot account for their difference in treatment. 83
Even if a plaintiff alleges a comparator employee is similarly situated to the
plaintiff, at the summary judgment stage the plaintiff must offer evidence to demonstrate
their 	circumstances 	are 	“nearly 	identical” 	to 	make 	a 	prima 	facie 	case 	of 	sex
discrimination. For example, in Saketoo v. Administrators of Tulane Educational Fund,
an associate medical professor sued the administrators of her university employer,
alleging they discriminated against her based-on gender. 84 In support, she claimed she
was denied work opportunities that were offered to male professors. However, the district
court granted summary judgment in favor of the administrators.85 On appeal, the Fifth
Circuit upheld the district court’s judgment, reasoning that, although the professor
claimed her male colleagues received favorable treatment, she did not state sufficient facts
to show how she and these male employees were similarly situated. 86 In fact, in Saketoo,
the plaintiff ignored key differences between her situation and those she claimed were her
comparators, such as their different job titles and responsibilities. 87
81 Id.
82 Id.
83 Id.
84 31 F.4 th 990, 996 (5th Cir. 2022).
85 Id.
86 Id. at 998-999.
87 Id.
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1. 	Light Duty Request
Plaintiff has failed to demonstrate a prima facie case of sex discrimination as she
has not put forth any evidence showing Defendant treated similarly situated male
employees more favorably than it treated her with respect to assignment to light duty. 88
Plaintiff claims Defendant discriminated against her based on her sex by denying her light
duty work in September of 2022 while assigning similarly situated male officers to light
duty around that time. 89
Even when making a prima facie case of sex discrimination, a plaintiff must supply
evidence that male comparators were similarly situated to her. 90 Plaintiff argues HPD
offered light duty work to male officers Ryan Ray, Patrick Tomberlin, and Terry Sanchez,
but refused that work to her. 91 She offers an affidavit from Ryan Ray, in which he states
that Defendant assigned him to light duty work around the time Plaintiff requested such
an assignment. 92
Plaintiff’s problem is that she was never eligible to return to work, even on light
duty. 93 The fact that other employees were granted light duty alone does not demonstrate
that Defendant treated similarly situated male colleagues more favorably than Plaintiff.
Plaintiff presents no facts showing Defendant assigned the male comparator officers light
duty despite their being ineligible to work while denying light duty to Plaintiff. She
presents no evidence demonstrating that the male comparator officers and she had
comparable job titles, responsibilities, or most importantly, conduct histories. 94
88 R. Doc. 66-2 at p. 9.
89 R. Doc. 68- at p. 8.
90 See Saketoo, 31 F.4th at 998-999.
91 R. Doc. 68-1 at p. 58; 66-9 at Exh. 69, Payne at 227:22-228:10; 236:16-238:17.
92 R. Doc. 68-10.
93 R. Doc. 70 at pp. 2-3.
94 See Lee, 574 F.3d at 260; Saketoo v. Administrators of Tulane Educational Fund, 31 F.4th 990, 998-99
(5th Cir. 2022).
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Plaintiff has not shown that these male employees failed to comply with HPD
policy, in a manner similar to how she failed to comply. While it remains unclear whether
or not HPD assigned officers to light duty at this time, 95 it is undisputed that on September
2, 2022, Plaintiff could not return to work under any circumstances until she visited a city
doctor, which she did not do. 96 When she did see the city doctor on October 5, 2022, the
city doctor refused to clear her for duty, and subsequent doctors’ reports similarly
declined to allow Plaintiff to return to work under any circumtsnaces. 97 Furthermore,
Plaintiff never completed fit for duty testing following her extended sick leave, as required
by HPD policy. 98
Plaintiff has not ruled out that the difference in Plaintiff’s and her male colleagues’
conduct accounts for their difference in treatment. 99 Accordingly, Defendant has not
demonstrated that she was treated less favorably than similarly situated males. As a
result, she has not made a prima facie case of sex discrimination based on the Defendant’s
failure to assign her to light duty.
Even if Plaintiff had made a prima facie case, her claim would fail because she did
not rebut Defendant’s non-discriminatory reasons for denying her light duty. After an
employee makes a prima facie case under the McDonnell Douglas framework, the burden
shifts to the defendant to demonstrate it had non-retaliatory reasons for demoting the
95 Contradicting evidence exists as to whether HPD assigned officers to light duty. While Plaintiff alleges
certain male officers worked light duty (R. Doc. 68-10), Defendant claims light duty was not available to
officers after the State Examiner’s Office advised HPD that light duty is not recognized under civil service
law. Defendant does not provide a date for the policy’s discontinuance. R. Doc. 70 at p. 4. However, such a
discussion of light duty availability is immaterial because Plaintiff never satisfied HPD requirements to
return to work in any capacity.
96 R. Doc. 66-4 at Exh. 8, Exh. 11 at COH_JP-00708; R. Doc. 66-9 at Exh. 69, Payne at 68:23-69:2.
97 R. Docs. 66-1 at ¶ 30 (citing R. Doc. 66-4 at Exh 11 at COH_JP-000707-000708); R. Docs. 66-1 at ¶ ¶ 69-
80 (citing R. Doc. 66-5 at Exhs. 20, 23A, 23B, 24 (at COH_JP-001742-43), 23C, 25-30); 68-1 at ¶ ¶ 69-80.
98 R. Doc. 66-7 at Exh. 57B at p. 1.
99 Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
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plaintiff. 100 “The employer’s burden is only one of production, not persuasion, and
involves no credibility assessment.” 101 The defendant must rebut a prima facie case with
evidence of a legitimate, nondiscriminatory reason for its employment decision. 102
In this case, Defendant proffers evidence demonstrating non-discriminatory
reasons for denying Plaintiff light duty. Defendant cites to HPD General Order No. 140,
which states: “on fifth (5+) absence personnel will be required to report to the city
physician and provide required documentation.”103 As Plaintiff’s September 2, 2022
absence was her 32nd instance of sick leave and 7th non-consecutive sick leave period,
she was required to see the city physician before returning to work. 104 In other words,
Defendant’s sick leave policy prohibited it from granting Plaintiff light-duty status or
returning her to work in any capacity, as she had not seen the city doctor prior to her
request. Defendant has set forth non-discriminatory reasons for denying Plaintiff light-
duty work. “The employee must [now] present evidence that the articulated reason is
pretextual.” 105
“In response to a motion for summary judgment, an employee must present
‘substantial evidence’ that the employer’s legitimate, nondiscriminatory reason…is
pretextual.” 106 “Pretext is established ‘either through evidence of disparate treatment or
by showing that the employer’s proffered explanation is false or ‘unworthy of credence.’” 107
Plaintiff points to the affidavit from Ryan Ray, in which he states only that he
worked light duty around the time Plaintiff requested it, to demonstrate that Defendant’s
100 Id. at 259.
101 McCoy v. Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
102 Turner v. Kansas City Southern Ry. Co., 675 F.3d 887, 904 (5th Cir. 2012).
103 R. Docs. 66-1 at ¶ 25 (citing R. Doc. 66-4 at Exh. 10 at § F(3)); 68-1 at ¶ 25.
104 R. Docs. 66-1 at ¶ 24 (citing R. Doc. 66-4 at Exh. 7 at ¶¶25-28).
105 Delaval v. PTech Drilling Tubulars, LLC, 824 F.3d 476, 479 (5th Cir. 2016).
106 Id. at 480.
107 Id. (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (quoting Wallace v. Methodist Hosp.
Sys., 271 F.3d 212, 220 (5th Cir. 2001))).
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non-discriminatory explanation amounts to pretext.108 However, the Ray affidavit does
not change the fact that Plaintiff was not eligible to return to work in any capacity until a
city doctor cleared her to return to work. Plaintiff offers no evidence showing Officer Ray
was similarly situated to her, i.e., that he was on his 32nd instance of sick leave and
seventh non-consecutive sick leave period. Nor does she provide evidence showing Ray
was required to but failed to see a city doctor and nevertheless was assigned to light duty
work. Furthermore, Plaintiff offers no HPD sick leave policy that contradicts HPD
General Order No. 140 requiring her to see a city doctor before returning to work, nor
does she offer evidence showing HPD inconsistently enforces this requirement. There is
no genuine dispute of material fact as to whether Defendant’s proffered explanation is
worthy of credence. Even viewing the evidence in a light most favorable to the Plaintiff,
no documents or testimony show Defendant’s stated reasons for denying Plaintiff light
duty are pretextual. As a result, even if Plaintiff had made a prima facie case of
discrimination, her claim would still fail.
2. 	Disparate Sick Leave Policy Requirements
Plaintiff has failed to demonstrate a prima facie case of sex discrimination as she
has not put forth any evidence showing Defendant treated similarly situated male
employees more favorably than her with respect to sick leave treatment. Plaintiff claims
Defendant discriminated against her based on her sex by requiring her to seek
authorization from human resources or her superiors before leaving her home while on
sick leave, while allowing male officers on sick leave to leave their homes as they
pleased. 109 Plaintiff claims HPD General Order No. 140, which requires employees on sick
108 R. Doc. 68-10, Exh. 8.
109 R. Doc. 66-9 at Exh. 69, Payne at 238:18-14, 271:22-277:7; R. Doc. 66-10 at Exh. 72, Nos. 16-17.
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leave to receive authorization before leaving their residences, resulted in her being
“confined in her home” while on extended sick leave from September 2, 2022 to her
termination on December 18, 2023.110 In addition, Plaintiff claims HPD officers Tom
Mushinksy, Vince Jones, and David Mauro were allowed to leave their homes as they
pleased while on sick leave.111
Plaintiff does not provide adequate evidence demonstrating similarly situated
male officers received more favorable sick leave treatment. While Plaintiff does not need
to offer identical male comparators with the exact same employment profiles as her, she
must demonstrate that Defendant treated “nearly identical” male employees better than
her.112 However, Plaintiff does not show these male employees received favorable
treatment, or even if they did, that they received it under nearly identical scenarios. She
admits she does not know the specifics of the male comparators’ situations, such as why
they were out on sick leave or whether HPD formally authorized them to leave their
homes. 113 She even acknowledges she did not know for a fact that Jones lacked
authorization to leave his home. 114
Furthermore, Plaintiff does not offer any facts showing these male comparators
had similar job titles, supervisors, or conduct histories. 115 For comparator employees to be
similarly situated, their conduct must have been “nearly identical.” 116 Plaintiff has failed
to allege sufficient facts to demonstrate she and her male comparators had similar sick
leave situations or that Defendant allowed these male officers to violate sick leave policy
110 R. Doc. 68-1 at ¶ 99.
111 R. Doc. 66-9 at Exh. 69, Payne at 238:18-14, 271:22-277:7; R. Doc. 66-10 at Exh. 72, Nos. 16-17.. Doc. 66-
10 at Exh. 72, at Interrog. No. 16.
112 Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
113 R. Doc. 66-9 at Exh. 69, Payne at 239:11-240:5; 240:6-14; 272:18-274:20; 276:14-277:7.
114 Id.
115 R. Doc. 66-2 at p. 16.
116 See Lee, 574 F.3d at 260.
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while requiring her to adhere to it. As a result, Plaintiff has failed to make a prima facie
case of sex discrimination based on Defendant requiring her to abide by HPD sick leave
policy.
Again, even assuming Plaintiff made a prima facie case of discrimination based on
Defendant denying Plaintiff the ability to leave her home without authorization, Plaintiff’s
claim would still fail. If Plaintiff had made a prima facie case of sex discrimination, the
burden would shift to Defendant to offer non-discriminatory reasons for its actions.
Defendant denies it discriminated against Plaintiff based on her sex and identifies a non-
discriminatory reason for requiring Plaintiff to seek authorization before leaving her
home—HPD General Order No. 140. 117
Accordingly, the burden returns to Plaintiff to demonstrate Defendant’s stated
reasons for its employment action amount to pretext. 118 Plaintiff fails to put forth any
evidence showing that Defendant’s explanation amounts to pretext. Although she points
to other male officers who she alleges received favorable sick leave treatment, she offers
no evidence to support this; “[u]nsubstantiated assertions are not competent summary
judgment evidence.”119 There is no genuine dispute of material fact as to whether
Defendant’s proffered explanation is worthy of credence. Even viewing the evidence in a
light most favorable to the Plaintiff, no documents or testimony show Defendant’s stated
reasons for holding Plaintiff to HPD sick leave requirements are pretextual. As a result,
Plaintiff’s claims for sex discrimination under Title VII fail, and Defendant is entitled to
judgment as a matter of law on the claims.
117 R. Doc. 66-2 at p. 16.
118 Lemaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007).
119 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (first citing Celotex, 477 U.S. at 324;
then Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994); then quoting Skotak v. Tenneco Resins, Inc., 953
F.2d 909, 915-16 & n.7 (5th Cir. 1992)).
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3. 	Disparate Disciplinary Action
Plaintiff has failed to demonstrate a prima facie case of sex discrimination as she
has not put forth any evidence showing Defendant treated similarly situated male
employees more favorably than it treated her with respect to disparate punishment for
sick leave violations. Plaintiff claims that male officers Tom Mushinsky and Vince Jones
violated sick leave policy but received no discipline, while she was demoted two-ranks on
May 25, 2023 for her violation of sick leave policy. 120 Plaintiff claims Mushinsky and Jones
were allowed to leave their homes as they pleased while on sick leave; 121 she stated in her
deposition that Mushinsky informed her that Captain Scivicque told him he “couldn’t [be]
expect[ed] to stay at home like [Plaintiff] had to.” 122 She also stated that Captain Scivicque
told Vince Jones and her husband, Thad Gautier, that Jones did not need to seek
authorization to go to Florida while on sick leave; Gautier relayed this statement to
Plaintiff.123
A Plaintiff’s deposition testimony can serve as competent summary judgment
evidence so long as its proponent can show that the statement can be presented in an
admissible form at trial.124 The Plaintiff is unable to do this because Mushinsky and
Gautier’s statements constitute inadmissible hearsay, as they are out of court statements
offered for the truth of the matter asserted, 125 that Mushinsky and Jones were allowed to
120 R. Doc. 81, uncontested material facts, at ¶ 91.
121 R. Doc. 66-9 at Exh. 69, Payne at 238:18-14, 271:22-277:7; R. Doc. 66-10 at Exh. 72, Nos. 16-17.. Doc. 66-
10 at Exh. 72, at Interrog. No. 16.
122 R. Doc. 66-9, Exh. 69, at 239:12-20.
123 Id. at 273:6-274:10.
124 See Sharper v. Right Away Maintenance Company, No.22-560-SDJ, 2024 WL 2064061, at *4 (M.D.
La. May 8, 2024) (citing Miller v. Michaels Stores, Inc., 98 F.4 th 211, 218 (5th Cir. 2024)).
125 Fed. R. Evid. 801(c)(1)-(2). Hearsay exception Fed. R. Evid. 801(d)(2)(D) allows testimony that would
otherwise be inadmissible hearsay if the party making the statement was the party’s agent or employee and
the statement offered concerned a matter within the scope of that employer/employee relationship. In a
case concerning an employment action, the Fifth Circuit stated this exception only applies when the party
making the statement is involved in the decision-making process affecting the employment action in
question. Lay v. Singing River Health System, 694 Fed.Appx. 248, 257 (5th Cir. 2017). In the present case,
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19
leave their homes without authorization while on sick leave. These statements do not fall
under any hearsay exception and, as a result, this Court cannot consider them in ruling
on this motion.
Plaintiff has provided no other evidence showing that Mushinsky or Jones violated
sick leave policy. In fact, Plaintiff admits she does not know whether Jones had actually
been approved to leave his home. 126 As Plaintiff has failed to offer any evidence creating a
genuine issue of material fact as to whether any male officers were treated more favorably
than she was, let alone similarly situated male officers, she has failed to make a prima
facie case of sex discrimination based on disparate sick leave disciplinary actions.
Accordingly, Defendant is entitled to judgment as a matter of law on this claim.
Assuming Plaintiff had made a prima facie case of sex discrimination based on
disparate disciplinary action, her claim would still fail. Defendant denies that it failed to
discipline male officers who violated sick leave and offers a non-discriminatory reason for
disciplining Plaintiff, pointing to the fact that Plaintiff not only violated sick leave policy
by leaving her house without authorization, but left the entire country. 127
As 	Defendant 	has 	articulated 	a 	non-discriminatory 	reason 	for 	disciplining
Plaintiff, the burden returns to Plaintiff to demonstrate that Defendant’s stated reason
amounts to pretext. However, Plaintiff does not achieve this. She does not offer any
evidence showing that Defendant did not discipline male officers for violating sick leave
but demoted her. As stated above, she even acknowledges she did not know whether Jones
was authorized to leave his house on sick leave 128 and offers no competent summary
neither Mushinsky, Jones, nor Gauttier were involved in sick leave disciplinary decisions. Accordingly,
these statements about what Scivicque told them were not made within the scope of their employment and
801(d)(2)(D) does not apply.
126 R. Doc. 66-9, Exh. 69 at 272:18-274:20.
127 R. Doc. 66-1 at ¶ 40.
128 R. Doc. 66-9, Exh. 69 at 272:18-274:20.
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judgment evidence showing Mushinsky violated sick leave policy. Furthermore, she
presents no facts demonstrating that she did not violate HPD policy by going on a cruise
while on sick leave. There is no genuine dispute of material fact as to whether Defendant’s
proffered explanation is worthy of credence. Even viewing the evidence in a light most
favorable to the Plaintiff, no documents or testimony show Defendant’s stated reasons for
disciplining Plaintiff, but not other male officers, are pretextual. 	As a result, even if
Plaintiff had made a prima facie case of sex discrimination, her claim would still fail.
II. 	Counts Two and Three: Defendant is entitled to summary judgment on
Plaintiff’s ADA and LEDL claims.
A. 	Factual Background
Plaintiff claims Defendant violated the ADA and LEDL by failing to accommodate
her disability by: (1) failing to allow her a reasonable time to recover from her December
27, 2022 spinal surgery before terminating her on December 18, 2023;129 (2) not assigning
her to light duty between September 2, 2022 and December 18, 2023;130 (3) refusing to
lift restrictions set forth in HPD’s sick leave policy while Plaintiff was on extended sick
leave from September 2, 2022 to her termination; 131 (4) refusing to reassign her to a
different position in the communications department where she could more easily
perform the essential functions of her job; and (5) not engaging in a good faith interactive
process with Plaintiff by failing to offer her a reasonable accommodation and not
following up with her personal physician after he submitted a job analysis report on
September 25, 2023.132
129 R. Doc. 68-7, Exh. 7.
130 R. Doc. 68-10, Exh. 8.
131 R. Docs. 68-7, Exh. 7; 68-6, Exh. 6.
132 R. Docs 68-6 Exh. 6; 68-13, pp. 53-54.
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The following facts are undisputed. From September 21, 2022 to June 28, 2023,
multiple physicians examined Plaintiff and subsequently submitted a series of Attending
Physician Reports (“APR”) stating that Plaintiff could not return to work until further
notice.133 On July 31, 2023, an attending physician report authored by Daniel Long P.A.
authorized Plaintiff to return to work on limited duty. 134 HPD General Order No. 140
states: “Upon release from physician to return to duty from extended sick leave a Fit for
Duty will be required ‘prior’ to one’s return to work and will be directed to a facility by the
City at the City’s expense.” 135 Although fit for duty testing was scheduled for Plaintiff, this
appointment was later cancelled due to a lack of medical clearance from Plaintiff’s
personal physician. 136 In a letter dated Aug. 30, 2023, Diana McMahon of HPD human
resources requested Dr. Eric Oberlander, Plaintiff’s personal physician, to assist in
determining whether Plaintiff could safely perform essential functions of her job with or
without a reasonable accommodation.137 Dr. Oberlander completed a job analysis report
dated Sept. 25, 2023, in which he stated Plaintiff would likely have permanent restrictions
due to her lumbar surgeries, that she should not lift more than 35-40 pounds, that she
should experience minimal bending and twisting, walk minimally, and stand for no more
than 2 hours at a time without a break. 138 In response to a question asking if Plaintiff’s
condition precluded her from safely performing any of the essential functions of her job,
and if so, for how long, Dr. Oberlander responded “yes, likely permanent.”139 A job analysis
report performed by city doctor Michael Christner, dated November 2, 2023, agreed with
133 R. Docs. 66-1 at ¶ ¶ 69-80 (citing R. Doc. 66-5 at Exhs. 20, 23A, 23B, 24 (at COH_JP-001742-43), 23C,
25-30); 68-1 at ¶ ¶ 69-80.
134 R. Docs. 66-1 at ¶ 142 (citing R. Doc. 66-7 at Exh. 51); 68-1 at ¶ 142.
135 R. Docs. 66-1 a ¶ 145 (citing R. Doc. 66-4 at Exh. 10); 68-1 at ¶ 145.
136 R. Docs. 66-1 at ¶ 160 (citing R. Doc. 66-7 at Exh. 57B, at p. 1); 68-1 at ¶ 160.
137 R. Docs. 66-1 at ¶ 165 (citing R. Doc. 66-7 at Exh. 58 at p.1); 68-1 at ¶ 165.
138 R. Docs. 66-1 at ¶ 167 (citing R. Doc. 66-7 at Exh. 60); 68-1 at ¶ 167.
139 R. Docs. 66-1 at ¶ 172 (citing R. Doc. 66-7 at Exh. 60); 68-1 at ¶ 172.
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Dr. Oberlander’s evaluation.140 On November 20, a hearing was held regarding Plaintiff’s
disability and extended sick leave. 141 On November 27, Plaintiff submitted a written
request to the city, requesting the ability to leave her home without city approval. 142 The
city responded that Plaintiff was allowed to leave her house with proper notification per
city policy. 143
Plaintiff cites an affidavit from her personal physician, Dr. Eric Oberlander, dated
September 25, 2023, stating that “[i]n my medical opinion, following appropriate
recovery from surgery, Jennifer Payne could have recovered and performed the essential
duties and responsibilities of a police officer.”144 Furthermore, Plaintiff claims Defendant
improperly refused to lift HPD General Order No. 140’s notification requirement and to
allow her to leave her home without authorization. 145 She supplies doctors’ notes
addressed to Defendant and alleges that these letters state that lifting such restrictions
would aid in her recovery. 146 She further supplies doctor’s notes stating that by preventing
her from leaving her “place of confinement,” Plaintiff’s recovery may have been
prolonged.147
Defendant states that according to HPD’s description of the duties of a police
officer, Plaintiff’s job requires her to carry between 10 and 150 pounds 6-33% of the day,
walk 34-66% of the day, and stand 67% of the day.148 It also claims that as a police officer,
Plaintiff’s duties included conducting traffic stops, securing crime scenes, engaging and
subduing 	perpetrators, 	utilizing 	a 	firearm, 	accessing 	structures, 	and 	assisting
140 R. Docs. 66-1 at ¶ 180 (citing R. Doc. 66-7 at Exh. 63 at COH_JP-000285); 68-1 at ¶ 180.
141 R. Doc 81, undisputed facts, at ¶ 119.
142 Id. at¶ 121.
143 Id. at ¶ 122.
144 R. Doc. 68-1 at ¶ 172 (citing R. Doc. 68-7).
145 R. Doc. 68 at pp. 9-10.
146 Id.
147 R. Docs. 68-7, Exh. 7; 68-6, Exh. 6.
148 R. Doc. 66-5 at Exh. 18B at COH_JP-000654.
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officers/civilians to safety. 149 Furthermore, Defendant states that multiple doctors agreed
between September 2022 and November 2023 that Plaintiff could not perform the
essential functions of her job and points to Plaintiff’s deposition testimony, where she
agreed with the doctor’s findings and acknowledged she could not perform essential
duties of her job. 150
Defendant also points out that Dr. Oberlander’s September 25, 2023 affidavit
stated that “following appropriate recovery from surgery” Plaintiff could have recovered
and performed her duties, but provided no date by which this would occur. Defendant
argues it was not required to allow Plaintiff an indefinite period to recover before
terminating her.151 Furthermore, the Defendant argues it was incapable of reassigning
Plaintiff to the communications department. Defendant relies on deposition testimony
from Captain Bergeron, Captain Scivicque, and Diana McMahon of HPD Human
Resources, who state that a police officer and a communications officer are different job
classifications. 152 Defendant argues that HPD employees are categorized as “civil service,”
and, as such, cannot transfer between different job classifications. 153 Defendant also
represents that, even if light duty were available, it could not assign Plaintiff to light duty
due to her ineligibility to return to work. 154 Finally, Defendant argues it did engage in an
interactive process with Plaintiff concerning reasonable accommodations, and that
Plaintiff’s doctors notes never requested that she be allowed to leave her house without
restriction.155
149 R. Doc. 66-5, at 21-23.
150 R. Doc. 66-8, Exh. 64, at 43:4-11, 48:4- 17, 58:17-24.
151 R. Doc. 70 at p. 9.
152 Id.
153 R. Doc. 66-1 at ¶ ¶ 230, 231, 234.
154 R. Doc. 70 at p. 6.
155 R. Doc. 66-2 at pp. 6-7, 16.
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B. 	Legal Analysis
Because the analysis of a claim under the ADA mirrors that of a claim under the
LEDL, the Court will analyze them both at the same time. 156 Discrimination under the
ADA includes “not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability . . . unless such covered
entity can demonstrate that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.” 157 This type of ADA discrimination claim
is referred to as a “failure to accommodate” claim. The elements of an ADA failure to
accommodate claim are that (1) the plaintiff is a qualified individual with a disability; (2)
the disability and its consequential limitations were known by the employer; and (3) the
employer 	failed 	to 	make 	(denied) 	reasonable 	accommodations 	for 	such 	known
limitations.158
Notably, the enumerated elements above do not include proof of an adverse
employment action, such as a demotion or a termination—an adverse employment action
of this nature is not a required element of an ADA failure to accommodate claim. Rather,
a 	failure 	to 	accommodate 	claim 	provides 	a 	mechanism 	to 	combat 	workplace
discrimination even when the employee in question has not suffered an adverse
employment action. 159 The “adverse” conduct by the employer that triggers an ADA failure
156 See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007) (applying the ADA's standard for
disability discrimination to a claim asserted under the LEDL and ADA); Leaumont v. City of Alexandria,
582 F. App'x 407, 410–11 (5th Cir. 2014) (applying the same standard to a claim for disability discrimination
under the LEDL and ADA); Sutherland v. Edison Chouest Offshore, Inc., 2020 WL 5436654, at *14
(E.D. La. Sept. 10, 2020) (citing Barton v. Checkers Drive-In Restaurants, Inc., 2011 WL 1193061, at *3
(E.D. La. Mar. 28, 2011)) (“Louisiana's disability discrimination protections are based on the ADA, and the
Court's analyses under the LEDL and the ADA are the same.”).
157 Amedee v. Shell Chem., L.P., 953 F.3d 831, 837 (5th Cir. 2020) (citing § 12112(b)(5)(A) (emphasis
added)).
158 Thompson v. Microsoft Corp., 2 F.4th 460, 467 (5th Cir. 2021).
159 EEOC v. LHC Group, Inc., 773 F.3d 688, 703 n.6 (5th Cir. 2014).
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to 	accommodate 	claim 	is 	the 	employer's 	denial 	of 	the 	employee's 	reasonable
accommodation request. 160
The “reasonableness” of the requested accommodation is a crucial part of the
plaintiff's prima facie case and therefore she bears the burden of proof at trial as to
reasonableness. 161 To make reasonable accommodation the ADA requires employers to
make “[m]odifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed, that
enable a qualified individual with a disability to perform the essential functions of that
position . . . .” 162 Under the ADA, a reasonable accommodation may include:
(A) making existing facilities used by employees readily accessible to and usable
by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a
vacant 	position, 	acquisition 	or 	modification 	of 	equipment 	or 	devices,
appropriate adjustment or modifications of examinations, training materials or
policies, the provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities. 163
Furthermore, the ADA’s implementing regulations define a reasonable accommodation
as
(i) Modifications or adjustments to a job application process that enable a qualified
applicant with a disability to be considered for the position such qualified applicant
desires; or
(ii) Modifications or adjustments to the work environment…that enable an
individual with a disability who is qualified to perform the essential functions of
that position; or
(iii) Modifications or adjustments that enable a covered entity's employee with a
disability to enjoy equal benefits and privileges of employment as are enjoyed by
its other similarly situated employees without disabilities. 164
160 See Windhauser v. Board of Supv. for La. State Univ., 360 Fed. Appx. 562, 566 (5th Cir. 2010).
161 Riel v. Electronic Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996).
162 LHC Grp., 773 F.3d at 698 (citing 29 C.F.R. § 1630.2(o) (1)(ii)).
163 42 U.S.C. § 12111(9).
164 Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citing 29
C.F.R. § 1630.2(o)(1)).
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“The ADA does not require an employer to relieve an employee of any essential functions
of his or her job, modify those duties, reassign existing employees to perform those jobs,
or hire new employees to do so.” 165
An implicit requirement of the plaintiff's prima facie case for a failure to
accommodate claim is that she demonstrates she actually requested the accommodation
that she claims to have been denied. Thus, at trial, the plaintiff must demonstrate not only
that the accommodation at issue is reasonable but also that she requested it. 166 After all, if
the employee fails to request an accommodation the employer cannot be held liable for
failing to provide it.167 “[O]nce the employee presents a request for an accommodation,
the employer is required to engage in [an] interactive process so that together they can
determine what reasonable accommodations might be available.” 168
Assuming the plaintiff has satisfied all of the elements of her prima facie case for
the failure to accommodate, the burden then shifts to the employer to demonstrate that
the requested reasonable accommodation would impose an undue hardship on the
operation of the employer's business. 169 The term “undue hardship” means an action
requiring significant difficulty or expense, when considered in light of factors such as the
type of operation or operations of the covered entity, including the composition,
structure, and functions of the workforce of such entity; the geographic separateness,
administrative, or fiscal relationship of the facility or facilities in question to the covered
entity. 170
With these precepts in mind, the Court now turns to the three required elements
165 LHC Grp., 773 F.3d at 698 (citing Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999)).
166 Clark, 952 F.3d at 587 (citing Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007)).
167 Id. at 587 n.71 (citing Taylor, 93 F.3d at 165).
168 E.E.O.C. v. Chevron Philips, 570 F.3d 606, 622 (5th Cir. 2009).
169 Chevron Phillips Chem., 570 F.3d at 614 (citing 42 U.S.C. § 12112(b)(5)(A)).
170 42 U.S.C. § 12111(10)(A)-(B)(iv).
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of an ADA failure to accommodate claim: (1) the plaintiff is a qualified individual with a
disability; (2) the disability and its consequential limitations were known by the
employer; and (3) the employer failed to make (denied) reasonable accommodations for
such known limitations. 171
1. 	Plaintiff’s 	failure 	to 	accommodate 	claims 	regarding
indefinite 	leave 	fails 	because 	indefinite 	leave 	is 	not 	a
reasonable accommodation.
Plaintiff has failed to demonstrate a prima facie case of failure to accommodate as
she has not put forth any evidence showing Defendant failed to provide a reasonable
accommodation by not offering her indefinite leave to recover from her surgery. Plaintiff
claims Defendant should have accommodated her disability by allowing her a “reasonable
time” to recover from surgery, which would allow her to perform the essential functions
of her job. 172 An employer may offer a reasonable accommodation to a disabled employee
in several ways. Courts in this circuit have consistently held that “[t]ime off, whether paid
or unpaid, can be a reasonable accommodation, but an employer is not required to
provide a disabled employee with indefinite leave.” 173
Plaintiff claims Defendant could have reasonably accommodated her disability in
several ways. First, Plaintiff asserts Defendants could have accommodated her by
allowing her “a reasonable time to recover” from her surgery. 174 To support this assertion,
she points to an affidavit from Dr. Oberlander, executed on September 15, 2025, in which
he states “[i]n my medical opinion, following appropriate recovery from surgery, Jennifer
171 Thompson v. Microsoft Corp., 2 F.4th 460, 467 (5th Cir. 2021).
172 R. Doc. 68-1 at ¶ 172 (citing R. Doc. 68-7).
173 Moss, 851 F.3d at 418 (quoting Deleaval v. PTech Drilling Tubulars, LLC, 824 F.3d 476, 481 (5th Cir.
2016)); see also Amsel v. Texas Water Development Bd., 464 Fed.Appx 395, 400 (5th Cir. 2012) (“indefinite
leave is not a reasonable accommodation.”); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759-60
(5th Cir. 1996) (“[n]othing in the text of the reasonable accommodation provision requires an employer to
wait an indefinite period for an accommodation to achieve its intended effect.”).
174 R. Doc. 68 at p. 5.
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Payne could have recovered and performed the essential duties and responsibilities of a
police officer.” 175 However, neither Plaintiff nor her doctor provide even an estimated
timeline for how long this recovery might take. Such an extended period of leave with no
specified return date is not a reasonable accommodation, and Plaintiff has failed to show
she could perform the essential functions of her job without this indefinite absence. 176 Dr.
Oberlander’s September 25, 2023 Job Analysis stated that Plaintiff would likely have
permanent restrictions that would prevent her from performing the essential functions of
her job, 177 and Plaintiff agreed with this analysis. 178 There is no genuine dispute of material
fact as to whether Plaintiff or her doctor provided a date for her to return to work, or
whether Defendant could perform the essential functions of her job at the time of her
dismissal. As a result, this requested accommodation is not reasonable, and her claim for
failure to accommodate for refusing to grant her indefinite leave fails.
2. 	Plaintiff’s failure to accommodate claims regarding light
duty 	fails 	because 	light 	duty 	assignment 	was 	not 	a
reasonable accommodation.
Similarly, Plaintiff has failed to demonstrate a prima facie case of failure to
accommodate her by not assigning her to light duty as she has not put forth evidence
showing such an accommodation was reasonable. Plaintiff argues Defendant could have
reasonably accommodated her by assigning her to a light duty position between
September 2, 2022 and December 18, 2023.179 However, the ADA does not require an
employer to eliminate the essential functions of a job as a reasonable accommodation. 180
175 R. Doc. 68-1 at ¶ 172 (citing R. Doc. 68-7).
176 See Amsel., 464 Fed.Appx at 400 (5th Cir. 2012) (“indefinite leave is not a reasonable accommodation.”).
177 R. Doc. 66-7 at Exh. 60.
178 R. Doc. 66-8, Exh. 64, at 43:4-11, 48:4- 17, 58:17-24.
179 R. Doc. 68 at p. 8.
180 Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999).
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Plaintiff’s requested light duty assignment would be unreasonable as it would
eliminate essential functions of her job as a police officer. As a police officer, Plaintiff’s
duties included conducting traffic stops, securing crime scenes, engaging and subduing
perpetrators, utilizing a firearm, accessing structures, and assisting officers/civilians to
safety. 181 Furthermore, HPD’s description of the duties of a police officer demonstrate that
Plaintiff’s job requires her to carry between 10 and 150 pounds 6-33% of the day and
requires employees to spend a significant amount of time walking and standing. 182
Plaintiff was incapable of performing these functions. Dr. Oberlander’s job analysis form
dated September 25, 2023, stated that Plaintiff should not lift more than 35-40 pounds,
and that she should experience minimal bending and twisting, walk minimally, and stand
for no more than 2 hours at a time without a break.183 Dr. Christner, a city doctor, agreed
with 	Dr. 	Oberlander’s 	analysis. 184 	Plaintiff 	agreed 	with 	the 	doctor’s 	findings 	and
acknowledged she could not perform essential duties. 185 As a result, any potential light
duty assignment would have had to eliminate these essential functions of her job.
However, courts in this circuit have repeatedly stated that eliminating the essential
functions of a job is not a reasonable accommodation.186 Accordingly, such a request for
light 	duty 	assignment 	is 	not 	a 	reasonable 	accommodation 	and 	Plaintiff 	has 	not
demonstrated a prima facie case of failure to accommodate under the ADA.
181 R. Doc. 66-5, at 21-23.
182 R. Doc. 66-5 at Exh. 18B at COH_JP-000654).
183 R. Doc. 66-7 at Exh. 60.
184 R. Doc. 66-8 at Exh. 63.
185 R. Doc. 66-8, Exh. 64, at 43:4-11, 48:4- 17, 58:17-24.
186 See Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999)).
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3. 	Plaintiff’s failure to accommodate claim regarding lifting
sick 	leave 	restrictions 	fails 	because 	such 	an
accommodation was not reasonable.
Plaintiff has failed to demonstrate a prima facie case of failure to accommodate as
she has not put forth any evidence showing Defendant failed to reasonably accommodate
her by denying her requests to leave her home. She asserts that Defendant should have
allowed her to leave her house without notifying human resources or her superiors while
on sick leave, and that by preventing her from leaving her home, Defendant may have
delayed her healing.187 Of course, to make a prima facie case of failure to accommodate,
the Plaintiff must show that Defendant refused to grant a requested accommodation. A
reasonable accommodation is defined as “[m]odifications or adjustments to the work
environment, or to the manner or circumstances under which the position held or desired
is customarily performed, that enable a qualified individual with a disability to perform
the essential functions of that position . . . .” 188 The burden is on the Plaintiff to request
such an accommodation. 189
Plaintiff has not produced evidence showing Defendants denied her requests to
leave her house. While Payne claims that the doctors notes she submitted to Defendant
requested that she be allowed to leave her house as she pleased without notifying the city,
these letters do not make such a request. 190 Rather, these letters merely request that
Defendant allow Plaintiff to leave her house. 191 Plaintiff fails to recognize that HPD’s
General Order regarding sick leave allows employees to leave their homes for a myriad of
reasons, including “when the employee receives written notification from Human
187 R. Doc. 68 at pp. 6, 8, 10; R. Doc. 68-6; and R. Doc. 68-7, at p. 2 ¶ 20.
188 LHC Grp., 773 F.3d at 698 (citing 29 C.F.R. § 1630.2(o) (1)(ii)).
189 Clark v. Champion National Security, Inc., 952 F.3d 570, 587 (5th Cir. 2020).
190 R. Doc. 66-2 at pp. 6-7, 16.
191 Id.
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Resources, the Chief or his designee.”192 Furthermore, both the city attorney and HPD
human resources reminded Plaintiff that she could seek approval for activities that may
aid her recovery. 193 Payne does not offer any evidence demonstrating that she was not
allowed to leave her “place of confinement,” as she claims. Plaintiff did not request that
she be allowed to leave her house without notifying HPD until November 27, 2023; the
City responded to this request by saying that Plaintiff could leave her house so long as she
followed proper procedure. Simply put, the facts do not demonstrate that HPD policy
prevented Plaintiff from leaving her home. Rather, they show a policy that requires all
officers on sick leave to notify the city before engaging in activities not pre-approved.
Accordingly, she has not shown that Defendant failed to grant her a reasonable
accommodation, and Defendant is entitled to judgment as a matter of law.
Furthermore, she claims that lifting the notification requirement on November 27,
2023, would aid in her recovery, 194 but does not explain how. City policy allowed Plaintiff
to leave her house so long as she notified human resources, the chief, or the chief’s
designee before doing so. 195 It is unclear how an adjustment in this policy qualifies as a
reasonable accommodation of Plaintiff’s disability. Lifting the notification requirement
would not help her perform the essential functions of her job, make her life at work easier,
or allow her to enjoy equal benefits and privileges of employment. 196 While it may be
inconvenient for Plaintiff to notify her supervisors when she wishes to leave her home,
Plaintiff has failed to show that this requirement inhibited her from performing her job
or would benefit her potential return to work in any way. Accordingly, she has failed to
192 R. Doc. 66-4 at Exh. 10 § E.
193 R. Doc. R. Doc 66-2 at p. 16.
194 R. Doc. 68 at p. 10.
195 R. Doc. 66-4 at Exh. 10 § E.
196 See. 29 C.F.R. § 1630.2(o)(1).
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show that such an accommodation was reasonable and has failed to establish a prima
facie case of discrimination by failure to accommodate.
4. 	Plaintiff’s request for reassignment
Plaintiff has failed to demonstrate a prima facie case of failure to accommodate as
she has not put forth any evidence showing Defendant could have accommodated her by
reassigning her to another position. Plaintiff asserts also that Defendant could have
accommodated her disability by reassigning her to the communications department.
Reassigning an employee to a different job can be a reasonable accommodation, but “the
plaintiff bears the burden of proving that an available position exists that he was qualified
for and could with reasonable accommodations perform.” 197 For example, in Moss v.
Harris County, the Fifth Circuit affirmed a district court’s granting of summary judgment
on an ADA discrimination claim because the complainant failed to identify a vacant
position that his employer could assign him to in order to accommodate his disability. 198
Likewise, Plaintiff has failed to carry this burden. While she makes a conclusory
assertion 	that 	Defendant 	could 	have 	assigned 	her 	to 	a 	position 	within 	HPD’s
communications department to accommodate her disability, 199 she offers no evidence
demonstrating an available position in the communications department existed or that a
transfer was possible. On the other hand, Defendant provides evidence demonstrating
that such a reassignment was not possible. 200 Defendant relies on deposition testimony
from Captain Bergeron, Captain Scivicque, and Diana McMahon of HPD Human
Resources, which clarifies that a police officer and a communications officer are different
197 Moss, 851 F.3d at 418 (quoting Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007)); see also
Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (“For the accommodation of a reassignment to be
reasonable, it is clear that a position must first exist and be vacant.”).
198 Id. at 419.
199 R. Doc. 68-1 at ¶ 232.
200 R. Doc. 66-1 at ¶ ¶ 228-238.
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job classifications. 201 As HPD employees are categorized as “civil service,” they cannot
transfer between different job classifications. 202 Furthermore, even if Defendant could
transfer Plaintiff to the communications department, Plaintiff would still have to
demonstrate an ability to carry out physical arrests, as this is an essential function of a
communications officer. 203 Plaintiff has put forth no evidence showing she could carry out
this function. No genuine dispute of material fact exists as to whether Defendant could
assign Plaintiff to the communications department. As a result, reassignment is not a
reasonable accommodation, and the Court will grant summary judgment for Defendant
on Plaintiff’s ADA and LEDL claim based on Defendant’s failure to reassign her.
5. 	Failure to engage in interactive process
Finally, Plaintiff has not shown Defendant failed to engage in a good-faith,
interactive process because it failed to find a reasonable accommodation for Plaintiff and
did not follow up with her personal physician, Dr. Oberlander, after he submitted his job
analysis report on September 25, 2023. “[O]nce the employee presents a request for an
accommodation, the employer is required to engage in [an] interactive process so
that together they 	can 	determine 	what 	reasonable 	accommodations 	might 	be
available.”204 In Chevron v. Phillips, the Fifth Circuit reversed summary judgment on a
failure to accommodate claim, holding that the employer’s refusal to discuss the
accommodation with Plaintiff could lead a reasonable jury to find that the employer
violated the ADA. 205
201 Id.
202 R. Doc. 66-1 at ¶ ¶ 230, 231, 234.
203 R. Doc. 66-1 at ¶ 237.
204 E.E.O.C. v. Chevron Philips, 570 F.3d 606, 622 (5th Cir. 2009).
205 Id.
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However, Plaintiff does not offer any evidence showing that Defendant refused to
engage with her regarding her reasonable accommodation. On the other hand, Defendant
provides evidence showing that it reached out to multiple doctors, including Plaintiff’s
personal physician, in an attempt to determine whether Plaintiff could perform the
essential functions of her job. 206 Furthermore, Defendant held a hearing on November 20,
2023 concerning her disability and whether she could return to work. 207 Such facts do not
show bad-faith or a refusal to engage in an interactive process. Accordingly, there is no
genuine dispute of material fact as to whether Defendant engaged in a good faith,
interactive process to find a reasonable accommodation for Plaintiff, and Defendant is
entitled to judgment as a matter of law.
III. 	Count Four: Defendant is entitled to summary judgment on Plaintiff’s
retaliatory demotion claim under Title VII and her wrongful and
retaliatory termination claims under Title VII and LEDL.208
A. 	Factual Background
Plaintiff alleges that Defendant violated Title VII by demoting her on May 25,
2023, and later terminating her on December 18, 2023 in retaliation for her filing a charge
of discrimination against HPD with the EEOC on May 3, 2023.209 She further claims she
was wrongfully terminated on December 18, 2023 because of her disability in violation of
Title VII.210
The following facts are undisputed. Plaintiff was unable to work on September 2,
2022 and her absence was designated as sick leave. 211 HPD General Order No. 140 states:
“on fifth (5+) absence personnel will be required to report to the city physician and
206 R. Docs. 66-7 at Exh. 58; 66-8 at Exhs. 61-63.
207 R. Doc. 66-8 at Exh. 64.
208 The Court previously dismissed Plaintiff’s LEDL retaliatory demotion claim. R. Doc. 36 at p. 23.
209 R. Doc. 68 at pp. 11, 13.
210 R. Doc. 81 at ¶ 123.
211 R. Docs. 66-1 at ¶¶ 12, 14 (citing R. Doc. 66-4 at Exh. 5 at 10:22-11;17, 12:8-19); 68-1 at ¶ ¶ 12, 14.
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provide required documentation.” 212 As Plaintiff’s absence was her 32nd instance of sick
leave and 7th non-consecutive sick leave period, she was required to see the city physician
before returning to work in any capacity.213 Plaintiff did not see the city doctor prior to
September 5, 2022.214 HPD General Order 140 further states: “Sick leave shall begin upon
notification…and continue until the employee returns to work.” 215 Plaintiff took a cruise
on September 5-10, 2022.216 After this trip, Lieutenant David Mauro conducted an
Internal Affairs investigation into whether Plaintiff violated sick leave policy; the
investigation found Plaintiff did violate the policy. 217
On March 18, 2023, while on sick leave, Plaintiff attended a fundraiser without
authorization. 218 Once again, Lieutenant Mauro conducted an investigation finding
Plaintiff violated the sick leave policy. 219
Plaintiff filed a charge of discrimination with the EEOC on May 3, 2023, and the
City received notice of the charge on May 9. 220 On May 4, Police Chief Bergeron, Captain
Scivicque, and Captain Avery Roshner attended a meeting with the Office of State
Examiners to discuss investigation findings 	regarding Plaintiff’s sick leave policy
violations.221 On May 25, 2023, Plaintiff was demoted from the rank of Probationary
Lieutenant to Police Officer for two years. 222 On December 18, 2023, Plaintiff was removed
212 R. Docs. 66-1 at ¶ 25 (citing R. Doc. 66-4 at Exh. 10 at § F(3)); 68-1 at ¶ 25.
213 R. Docs. 66-1 at ¶ 24 (citing R. Doc. 66-4 at Exh. 7 at ¶¶25-28); 68-1 at ¶ 24.
214 R. Docs. 66-1 at ¶ 30 (citing R. Doc. 66-4 at Exh 11 at COH_JP-000707-000708); 68-1 at ¶ 30.
215 R. Docs. 66-1 at ¶ 36 (citing R. Doc. 66-4 at Exh. 10 at § (B)); 68-1 at ¶ 36.
216 R. Docs. 66-1 at ¶ 37 (citing R. Doc. 66-4 at Exh. 8, Exh. 11 at COH_JP-00708; R. Doc. 66-9 at Exh. 69,
Payne at 68:23-69:2); 68-1 at ¶ 37.
217 R. Docs. 66-1 at ¶¶ 53, 54, 59 (citing 66-4 Exh. 13, Exh. 14A at COH_JP-000279; R. Doc. 66 at 66-9 at
Exh. 69, Mauro at 7:4-16); 68-1 at ¶ ¶ 53, 54, 59.
218 R. Docs. 66-1 at ¶ 99 (citing R. Doc. 66-6 at Exh. 40, at 6:19-25); 68-1 at ¶ 99.
219 R. Docs. 66-1 at ¶ ¶ 102, 106 (citing R. Doc. 66-6 at Exhs. 37, 38; R. Doc. 66-8 at Exh. 68, Mauro at 7:4-
16); 68-1 at ¶¶ 102, 106.
220 R. Docs. 66-1 at ¶¶ 127, 128 (citing R. Doc. 66-7 at Exhs. 46, 47); 68-1 at ¶ ¶ 127, 128.
221 R. Docs. 66-1 at ¶ 120 (citing R. Doc. 66-4 at Exh. 6, ¶ ¶ 15-16); 68-1 at ¶ 120.
222 R. Docs. 66-1 at ¶ 129 (citing R. Doc. 66-7 at Exh. 48A-B); 68-1 at ¶ 129.
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from service.223 The Notice of Removal from Service stated that, in accordance with
Louisiana Revised Statute 33:2560, Section A.13, an employee may be removed due to
“the development of any defect or physical condition which precludes the employee from
properly performing the duties of his position.” 224
Plaintiff claims that while she was demoted for her violation of sick leave policy,
officers Tom Mushinsky and Vince Jones violated sick leave policy but received no
discipline.225
Again, a plaintiff may use either direct or circumstantial evidence to prove a case
of discrimination under Title VII. If a plaintiff relies on circumstantial evidence, the
McDonnell 	Douglass 	burden 	shifting 	framework 	applies. 	As 	Plaintiff 	relies 	on
circumstantial evidence, the court will analyze these claims under McDonnell Douglass.
If Plaintiff establishes a prima facie case, the burden then shifts to the defendant to state
legitimate, non-retaliatory reasons for its decision; following this response, the burden
shifts back to the Plaintiff to show Defendant’s stated reason is pretext for retaliation. 226
B. 	Legal Analysis
1. 	Retaliatory Demotion under Title VII
a. 	Prima Facie Case
Title VII prohibits an employer from taking adverse employment action against an
employee because she engages in protected activity. 227 “To establish a prima facie case of
retaliation, a plaintiff must show that (1) she participated in an activity protected under
223 R. Doc. 81, uncontested material facts, at ¶ 123.
224 Id. at ¶ 124.
225 R. Doc. 66-10, at Exh. 72, at Interrog. Nos. 16-17.
226 Lemaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007).
227 Joseph v. Phillips, No. 13-5254, 2014 WL 5429455 at *3 (E.D. La. Oct. 24, 2014).
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the statute; (2) her employer took an adverse employment action against her; and (3) a
causal connection exists between the protected activity and the adverse action.” 228
Defendant disputes only the third prong, claiming there is no causal connection
between the activity and the adverse action. 229 A causal link between the adverse
employment action and the protected activity can be satisfied “simply by showing close
enough timing between [the] protected activity and [the] adverse employment action.” 230
“At the prima facie stage, a Plaintiff can meet his burden of causation simply by showing
close enough timing between his protected activity and his adverse employment action.”231
Courts have held that a time lapse of up to four months between employee’s protected
activity and employer’s adverse action may be sufficiently close to establish a causal
connection, 232 while a five month lapse without other evidence of retaliation does not. 233
Defendant received notice of Plaintiff’s EEOC complaint on May 9, 2023 and
officially demoted Plaintiff on May 25, 2023. 234 As courts in this circuit have found a four
month period between protected activity and adverse action sufficient to find a causal
connection, the two week period between Plaintiff’s complaint and her demotion likewise
establishes this connection.235 Accordingly, Plaintiff has made a prima facie case of
retaliatory demotion.
228 Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy
v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
229 Id.
230 Abbood v. Texas Health and Human services Comm., 783 Fed. Appx. 459 (5th Cir. 2019) (citing Garcia
v. Professional Contract Servs., Inc., 983 F.3d 236, 243 (5th Cir. 2019)).
231 Garcia v. Professional Contract services, Inc., 983 F.3d 236, 243 (5th Cir. 2019).
232 Evans v. Houston, 246 F.3d 344, 354 (5th Cir. 2001).
233 Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002).
234 R. Doc. 66-1 at ¶ ¶ 127, 128 (citing R. Doc. 66-7 at Exhs. 46, 47); R. Doc. 66-1 at ¶ 129 (citing R. Doc. 66-
7 at Exh. 48A-B).
235 Evans, 246 F.3d at 354.
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b. 	Burden Shifts to Defendant to provide reasons for
the adverse employment action.
When a plaintiff makes a prima facie claim of retaliation, the burden shifts to the
defendant to demonstrate it had non-retaliatory reasons for demoting Plaintiff. 236 “The
employer’s burden is only one of production, not persuasion, and involves no credibility
assessment.” 237 The defendant must articulate a legitimate, nondiscriminatory purpose or
nonretaliatory reason for its employment action. 238 Defendant has provided non-
discriminatory reasons for demoting Plaintiff, claiming HPD demoted her due to her
violation of sick leave policy. 239 Furthermore, Defendant held a meeting with the Office of
State Examiners on May 4, 2023, concerning discipline for her sick leave violations, which
it claims demonstrates that it had formed a decision to discipline Plaintiff before receiving
notice of her EEOC charge. 240 Defendant has articulated neutral reasons for employment
actions taken against Plaintiff and, accordingly, has met its burden of production.
c. 	Burden shifts to Plaintiff to demonstrate defendant’s
reasons 	for 	the 	adverse 	employment 	action 	are
pretext for retaliation.
As Defendant offered non-retaliatory reasons for its adverse employment action,
the burden shifts back to Plaintiff, who must produce evidence showing Defendant’s
proffered reasons are pretext.241 At summary judgment, Plaintiff must point to additional
evidence that creates a genuine issue of material fact that either (1) defendant’s reason is
not true, but is instead a pretext for discrimination or (2) that the defendant’s reason,
while true, is only one of the reasons for its conduct, and another motivating factor is the
236 Lemaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007).
237 McCoy v. Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
238 Id.
239 R. Doc. 66-2 at p. 13.
240 R. Doc. 66-12 at Exh. 75, Bergeron at 144:11-12, 144:23-145:19, 158:4-13, 159:9-19, and 220:10-221:8.
241 Lemaire, 480 F.3d at 388-89.
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plaintiff’s protected activity or characteristic. 242 In other words, Plaintiff “must show a
conflict in substantial evidence” on the question of whether Defendant would not have
demoted Plaintiff “but for” the protected activity. 243 A “‘very close’” temporal proximity is
sufficient to establish the ‘causal connection’ elements of a prima facie case, but it is
insufficient to demonstrate pretext.” 244
Plaintiff offers no evidence in response showing that Defendant’s stated reasons
for demoting Plaintiff amounted to pretext. While she claims officers Jones and
Mushinsky violated sick leave policy with no repercussions, she offers no competent
summary judgment evidence supporting this argument. 245 Plaintiff acknowledges that she
did not know for a fact whether Jones was authorized to leave his home on sick leave 246
and offers no evidence showing that Mushinsky violated sick leave policy. Plaintiff’s only
other response to Defendant’s non-discriminatory reasons for demoting her is to point to
the temporal proximity between her EEOC complaint and her discipline. 247 While this
short time period creates a prima facie case of retaliation, it alone does not show
Defendant’s stated reasons for demoting Plaintiff were pretextual or demonstrate that
“but for” Defendant’s retaliatory intent, it would not have demoted Plaintiff.248 Because
Plaintiff failed to create a genuine issue of material fact that Defendant’s stated reasons
for taking adverse employment action were pretextual or that a retaliatory motive played
any role in Defendant’s decision to discipline her, her retaliatory demotion claim fails as
a matter of law.
242 Hebert v. Ascension Parish School Board, 396 F.Supp.3d 686, 706 (M.D. La. May 2, 2020).
243 Avvood v. Texas Health and Human Services Comm., 783 Fed. Appx. 459, 463 (5th Cir. 2019) (citing
Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013)).
244 Lyons v. Katy Independent School District., 964 F.3d 298, 306-7 (5th Cir. 2020).
245 See supra Section I.B.3.
246 R. Doc. 66-2 at p. 16.
247 R. Doc. 68-1 at ¶ 129.
248 See Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004).; Lyons, 964 F.3d at 306-7.
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2. 	Retaliatory Discharge under Title VII and the LEDL
In addition, Plaintiff has failed to demonstrate a prima facie case of retaliatory
termination under Title VII or the LEDL as she has not shown a causal connection
between her protected activity and the adverse employment action. Plaintiff claims she
was fired on December 18, 2023 in retaliation for filing her EEOC complaint on May 3,
2023. Claims under the LEDL are subject to the same analysis as claims under Title VII. 249
In Evans v. Houston, the Fifth Circuit found that a five-month lapse between protected
activity and adverse employment action was not sufficient without other evidence to
demonstrate the required causal connection. 250 In this case, Defendant terminated
Plaintiff over seven months after her EEOC complaint; the period between Plaintiff’s
EEOC charge and the adverse employment action is too long to show a causal connection
on its own. 251
Moreover, even if this temporal proximity alone could create a prima facie case,
Defendant offers a non-discriminatory reason for terminating Plaintiff—her inability to
perform 	the 	essential 	functions 	of 	her 	job. 252 	Plaintiff’s 	personal 	physician, 	Dr.
Oberlander, concluded that Plaintiff would have permanent limitations and could not
perform the essential duties of a police officer. 253 In response, Plaintiff points to no
evidence demonstrating such action was retaliatory except the conclusory allegation that
Defendant terminated her for her disability. 254 This assertion alone does not create a
disputed issue of material fact.255 Accordingly, Plaintiff has failed to show a causal
249 Decorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007).
250 246 F.3d 463, 472 (5th Cir. 2001).
251 R. Doc. 66-1 at ¶ 214.
252 R. Doc. 66-2 at p. 21.
253 R. Docs. 66-1 at ¶ 167 (citing R. Doc. 66-7 at Exh. 60).
254 R. Doc. 68-1 at ¶ 214.
255 See Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004).
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connection between her protected activity and her termination, and her claim fails as a
matter of law.
3. 	Wrongful Termination under Title VII and the LEDL
To establish a prima facie wrongful termination claim under Title VII, a plaintiff
must prove she: “(1) is a member of a protected class, (2) was qualified for the position
that she held, (3) was subject to an adverse employment action, and (4) was replaced by
someone outside of her protected class or treated less favorably than other similarity-
situated employees who were not in her protected class.” 256
Plaintiff has failed to establish that she was qualified for the job of police officer,
as she does not put forth any evidence showing she could perform the essential functions
of the job at the time of her termination. Dr. Oberlander’s job analysis form dated
September 25, 2023, stated that Plaintiff would face permanent limitations due to her
disability and that she would not be able to perform essential job duties for a “likely
permanent” duration.257 He further stated Plaintiff should not lift more than 35-40
pounds, and that she should experience minimal bending and twisting, walk minimally,
and stand for no more than 2 hours at a time without a break.258 Dr. Christner, a city
doctor, agreed with Dr. Oberlander’s analysis. 259 Furthermore, HPD’s description of the
duties of a police officer demonstrate that Plaintiff’s job requires her to carry between 10
and 150 pounds 6-33% of the day and requires employees to spend a significant amount
of 	time 	walking 	and 	standing. 260 	Plaintiff 	agreed 	with 	the 	doctor’s 	findings 	and
acknowledged she could not perform essential duties of the job. 261 There is no dispute of
256 Willis v. Cleco Corp., 749 F.3d 314, 320 (5th Cir. 2014).
257 R. Doc. 66-7 at Exh. 60.
258 R. Doc. 66-7 at Exh. 60.
259 R. Doc. 66-8 at Exh. 63.
260 R. Doc. 66-5 at Exh. 18B at COH_JP-000654).
261 R. Doc. 66-8, Exh. 64, at 43:4-11, 48:4- 17, 58:17-24.
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material fact as to whether Plaintiff could perform the essential functions of her job at the
time of her dismissal. Accordingly, she has failed to make a prima facie case of wrongful
termination under Title VII.
Assuming Plaintiff had established a prima facie case of wrongful termination, the
burden 	would 	then 	shift 	to 	Defendant 	to 	offer 	a 	non-discriminatory 	reason 	for
terminating Plaintiff.262 Defendant offers such a reason, stating that Plaintiff could not
perform the essential duties of a police officer.
After 	Defendant 	offers 	a 	non-discriminatory 	reason 	for 	taking 	adverse
employment action, the burden would then return to the Plaintiff to show that
Defendant’s stated reason amounts to pretext. 263 However, Plaintiff fails to offer any
evidence showing that Defendant’s stated reason for terminating Plaintiff, that she could
not perform the essential functions of her job, is false, or that an improper motive was a
consideration in terminating her. Once again, Plaintiff merely points to the temporal
proximity between her EEOC complaint and her eventual termination. 264 This proximity
does not call into doubt Defendant’s stated reason for terminating Plaintiff. As a result,
Plaintiff’s wrongful termination claim fails, and defendant is entitled to judgment as a
matter of law.
CONCLUSION
IT IS ORDERED that Defendant’s motion for summary judgment is GRANTED.
New Orleans, Louisiana, this 6th day of November, 2025.
_______ 	_____________ 	__________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
262 Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994) (applying McDonnell Douglas test).
263 Id.
264 R. Doc. 68-1 at ¶ 214.
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