Russell v. Parkview Baptist Sch., Inc.

BEVERLY RUSSELL v. PARKVIEW BAPTIST SCHOOL, INC.

CIVIL ACTION NO. 19-760-JWD-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

March 25, 2021

RULING AND ORDER

This matter comes before the Court on Defendant's Motion for Summary Judgment (Doc. 9) filed by Parkview Baptist School, Inc. ("Defendant" or "PBS"). Plaintiff Beverly Russell ("Plaintiff" or "Russell) opposes the motion. (Doc. 11.) Defendant has filed a reply. (Doc. 14.) Plaintiff filed a surreply. (Doc. 17.) Oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, Defendant's motion is granted.

I. Introduction

Russell was first hired by PBS in August 2012 as an assistant volleyball coach. (McCaughey Aff. ¶ 6, Doc. 9-4; see also Russell Decl., Doc. 11-2 at 1; Russell Dep. 58, Doc. 11-11 at 6.)¹ In August 2013, Plaintiff was hired in a full-time position as a PE teacher and assistant volleyball coach. (McCaughey Aff. ¶ 6, Doc. 9-4; see also Russell Decl., Doc. 11-2 at 1-2; Russell Dep. 58-60, Doc. 11-11 at 8.)

On April 9, 2019, Russell tendered her resignation to PBS. (Def.'s Statement of Uncontested Material Facts in Support of MSJ ("DSUMF") ¶ 1, Doc. 9-2; Pl.'s Response to[DSUMF] ("PRSUMF") ¶ 1, Doc. 11-1)² Plaintiff claims that she did so "under circumstances constituting a constructive discharge, i.e., a reasonable person in her position would have felt compelled to resign due to the imposition by PBS of objectively intolerable working conditions, and Ms. Russell felt so compelled." (PRSUMF ¶ 1, Doc. 11-1.) Russell's complaints largely center on her treatment at the hands of Christina Anderson, an African-American woman who was named Principal of PBS in August of 2017. (See Russell Decl., Doc. 11-2; McCaughey Aff. ¶ 7, Doc. 9-4.) The details of Plaintiff's complaints about Anderson will be discussed below.

Plaintiff is a white woman over the age of 60. (Russell Decl., Doc. 11-2 at 1.) She brings claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); discrimination and retaliation under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (the "ADEA"); and interference and retaliation under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (the "FMLA"). (Compl., Doc. 1.)

In the instant motion, Defendant seeks dismissal of all claims. With respect to the Title VII and ADEA discrimination claims, the Court agrees with Plaintiff that Defendant focuses almost exclusively on the question of whether Plaintiff proved a prima facie case and that Defendant argues the other issues in only a vague or perfunctory way. Consequently, Defendant has waived those issues. With respect to the other claims—the retaliation claims under Title VII and the ADEA, and those under the FMLA—the Court agrees with Defendant that Plaintiff has failed to properly oppose the motion and that these claims must be dismissed. Thus, the central issue before the Court is whether Plaintiff brought forward sufficient evidence to make a prima facie showing of discrimination.

Having carefully considered the matter, the Court finds that Plaintiff has not done so. Though a prima facie burden is minimal, Plaintiff still had to meet the high standard of proving a constructive discharge, which requires something more than a hostile work environment claim. She has not. Even accepting her admissible evidence as true and construing reasonable inferences in her favor, no reasonable jury would conclude that Plaintiff was constructively discharged from PBS. Consequently, Defendant's motion will be granted, and all of Plaintiff's claims will be dismissed.

II. Relevant Factual Background

A. Preliminary Evidentiary Issues

As noted above, both parties attack all affidavits or declarations submitted by the other on a variety of grounds. First, Plaintiff urges that Defendant's affidavits should be struck in full because each one says, "All statements made in this Affidavit are based on my personal knowledge and are true and accurate to the best of my information and belief." (Doc. 11 at 1 (citing Doc. 9-4, 9-8, 9-9, 9-11, 9-12, and 9-13).) Plaintiff asserts that the "on my information and belief" language fails the personal knowledge requirement of Federal Rule of Civil Procedure 56(c). (Id.) Plaintiff then contends that, "[b]esides the wholesale shortcomings discussed above, the majority of the individual affidavits are objectional on the basis of being too vague and conclusory and because some contain hearsay and double hearsay information, opinion, characterizations, and outright speculation." (Doc. 11 at 3.) On the whole, Plaintiff spends over seven pages highlighting alleged deficiencies in Defendant's affidavits.

Defendant replies by going affidavit by affidavit to explain why the objected-to information is in fact admissible. (Doc. 14 at 2-4.) Defendant then devotes four pages to making objections to Plaintiff's declaration, arguing that it contains inadmissible hearsay and multiplestatements that are subjective opinions or legal conclusions; that are not based on personal knowledge; that contradict deposition testimony; and that contradict Plaintiff's own opposition or the evidence. (Doc. 14 at 4-8.)

Though the Court has reviewed all of the evidence, the Court will not detail a ruling on every evidentiary objection the parties made, as doing so would not be a wise use of judicial resources. Rather, the Court will provide an overview of the principles it employed in deciding what evidence to consider and then rule on Plaintiff's general objection to all of Defendant's affidavits. The Court will then address specific objections where relevant in the facts and analysis section below, providing the explanation appropriate under the circumstances.

As to general principles, under Rule 56, "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Thus, one requirement of Rule 56(c) is "that the information they contain (as opposed to the affidavits themselves) would be admissible at trial." 10B Mary Kay Kane, Federal Practice & Procedure (Wright & Miller) § 2738 (4th ed. 2020). "Because the policy of Rule 56(c)(4) is that the judge should consider any material that would be admissible at trial, the rules of evidence and their exceptions determine what allegations the affidavit may contain." Id. "Questions regarding admissibility at trial are [generally] determined in the federal courts by the Federal Rules of Evidence[.]" Id.

"[I]t is [also] true that Rule 56 requires that summary judgment affidavits be based on personal knowledge[.]" DIRECTV, Inc. v. Budden, 420 F.3d 521, 529 (5th Cir. 2005) (citing Fed. R. Civ. P. 56(e)). For example, "ultimate or conclusory facts and conclusions of law, as well as statements made on belief or 'on information and belief,' cannot be utilized on a summary-judgment motion." Wright & Miller, supra, § 2738; see also Richardson v. Oldham, 12 F.3d 1373, 1378-79 (5th Cir. 1994) (finding no abuse of discretion in district court striking portions of affidavit that were based on information and belief because they were "not based on personal knowledge and therefore fail[ed] the requirements of Fed. R. Civ. P. 56(e)"); Bolen v. Dengel, 340 F.3d 300, 313 (5th Cir. 2003) (striking affidavit as inappropriate summary judgment evidence because the affidavit "specifically noted that 'on information and belief, and to the best of affiant's recollection' " and thus was "not based on personal knowledge").

"Nonetheless, while an affidavit certainly can explicitly state that it is based on 'personal knowledge,' " DIRECTV, 420 F.3d at 529-30, and while "an affidavit cannot affirmatively state that it is only based on 'information and belief,' " id. at 530 n. 40 (emphasis added) (citing Bolen, 340 F.3d at 313), there is no requirement for a set of magic words," id. at 530. "As to competency, for example, [the Fifth Circuit has] held that in the summary judgment context, even when a party's response is a verified pleading that 'does not affirmatively state in the document itself that the [persons] are competent to testify as to the facts to which they swore,' it 'does not necessarily doom their testimony.' " Id. at 530 (quoting Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987)). The Fifth Circuit has also quoted with approval a Ninth Circuit opinion which "found it proper in the summary judgment context for district courts to rely on affidavits where the affiants' 'personal knowledge and competence to testify are reasonably inferred from their positions and the nature of their participation in the matters to which they swore.' " Id. (quoting Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990)). Thus, in DIRECTV, the Fifth Circuit declined to strike an affidavit for lack of personal knowledge because it was within the affiant's position—or his "sphere of responsibility"—to be familiar with the investigation discussed in the affidavit, so his knowledge could be "reasonably inferred." Id.(quoting Hodges v. Exxon Corp., 563 F. Supp. 667, 669-70 (M.D. La. 1983)).

The Sixth Circuit also took such a moderate approach with respect to affidavits based in part on knowledge and in part on belief in Ondo v. City of Cleveland, 795 F.3d 597 (6th Cir. 2015). There, the district court granted defendants' motion to strike plaintiffs' affidavits. Id. at 604. Plaintiffs had sworn that their statements were based on "personal knowledge and belief." Id. In affirming the lower court, the Sixth Circuit explained:

We hold that when affidavits based on knowledge and belief are submitted

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