DIAL v. EAST BATON ROUGE PARISH COUNCIL ON AGING INC (2025)

A terminated employee appeals a summary judgment, whereby the trial court dismissed the employee's claims against his former employer for reinstatement of his job, unpaid wages, and damages. After review, we affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On January 2, 2018, the East Baton Rouge Council on Aging (EBRCOA)¹ hired Gregory Dial, a then fifty-eight-year-old White male, as a Governmental Accountant to work in the EBRCOA Finance Department. Approximately three years later, on January 4, 2021, EBRCOA informed Mr. Dial that his position had been eliminated and his employment was terminated. On July 2, 2021, Mr. Dial filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC), alleging EBRCOA had discriminated against him based on “race, color, sex, retaliation, age, and disability.” After EBRCOA responded, the EEOC ultimately issued a Dismissal and Notice of Rights, notifying the parties that it was closing its file on Mr. Dial's Charge of Discrimination, would not proceed further with its investigation, and was making no determination as to whether further investigation would establish violations of statutory law.

On January 14, 2022, Mr. Dial filed a petition for damages in the 19th Judicial District Court, alleging EBRCOA treated him in a “disparate, discriminatory, hostile, and retaliatory manner throughout his employment ․ due to his race, color, age, sex, health, and disabilities, and in retaliation for complaints about his treatment based on these protected statuses.” He also alleged EBRCOA isolated him and subjected him to unique and dangerous work conditions that Black employees, female employees, other older employees, and other medically-compromised employees were not subjected. In his petition, Mr. Dial alleged that only three of EBRCOA's thirty full-time employees were White and that the EBRCOA workforce was overwhelmingly comprised of thirty-to-forty-year-old Black females. Within the EBRCOA Finance Department, Mr. Dial alleged his supervisor, Eva Pratt, was a seventy-year-old Black female, and among his co-workers were two Black males (approximately thirty and forty-six-years old), two Black females (approximately forty-two and sixty-three-years old), and one White female (approximately sixty-six-years old). Further, he alleged EBRCOA violated the overtime pay and anti-retaliation provisions of federal and/or state law and that he was entitled to unpaid and penalty wages as well as reinstatement of his job.

EBRCOA filed an answer and affirmative defenses on February 14, 2022. Over two years later, on March 15, 2024, EBRCOA filed a motion for summary judgment, contending it terminated Mr. Dial for legitimate, non-discriminatory, non-retaliatory reasons and that he was not subjected to unlawful treatment during his EBRCOA employment. EBRCOA also claimed Mr. Dial was not entitled to unpaid wages. In support of its motion, EBRCOA filed EBRCOA Chief Executive Officer Tasha Clark-Amar's affidavit; EBRCOA Chief Financial Officer Eva Pratt's affidavit; EBRCOA Human Resources Manager Lauren Byrd's affidavit; and, Mr. Dial's deposition. Mr. Dial opposed EBRCOA's motion and, in support thereof, filed his own affidavit wherein he adopted his petition, his EEOC Charge of Discrimination, and his Supplemental Reply as his sworn affidavit testimony.² After a hearing, the trial court signed a judgment on June 17, 2024, granting EBRCOA's motion and dismissing Mr. Dial's claims against EBRCOA with prejudice. Mr. Dial appeals the adverse judgment.

ASSIGNMENTS OF ERROR

In four assignments of error, he contends: (1) the trial court erred in applying the “same actor inference” to EBRCOA's employment decisions; (2) EBRCOA's summary judgment evidence was insufficient and his evidence created a genuine issue of material fact; (3) EBRCOA was not entitled to summary judgment as a matter of law because many of his claims required the weighing of conflicting testimony and witness credibility; and (4) EBRCOA's affidavits contained unsupported “naked assertions” without support and should have been stricken.³

SUMMARY JUDGMENT

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The burden then shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See Id. When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. See La. C.C.P. art. 967(B). If he does not so respond, summary judgment, if appropriate, shall be rendered against him. Id. An appellate court reviews the grant or denial of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Shelton v. Landstar Ranger, Inc., 2024-1237 (La. App. 1 Cir. 6/20/25), 418 So.3d 1, 3.

Affidavits Filed in Support of Summary Judgment

Before reaching the applicable substantive law, we first address Mr. Dial's assignment of error whereby he argues the trial court should have stricken the affidavits EBRCOA filed in support of its motion, because they contain unsupported “naked assertions” for why EBRCOA eliminated his position, what the positions and performance levels of the other terminated employees were, and why EBRCOA deemed these particular employees terminable due to Covid-19.⁴

Under La. C.C.P. art. 967(A), supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A). Personal knowledge encompasses only those facts the affiant saw, heard, or perceived with his own senses. Successions of Millet, 2021-0355 (La. App. 1 Cir. 12/22/21), 340 So.3d 252, 258.

As mentioned, in support of its motion for summary judgment, EBRCOA filed the affidavits of CEO Tasha Clark-Amar, CFO Eva Pratt, and HR Manager Lauren Byrd. Ms. Clark-Amar attested that, as CEO, she had personal knowledge of EBRCOA's history, policies, and procedures, as well as facts regarding Mr. Dial's employment and termination. Ms. Clark-Amar also attested that EBRCOA underwent a restructuring process due to the Covid-19 Pandemic to more effectively serve the senior citizen community of East Baton Rouge Parish, and this restructuring process involved the elimination of several EBRCOA positions. Ms. Pratt attested that she was Mr. Dial's supervisor during his EBRCOA employment and was involved in the EBRCOA discussions regarding the restructuring process that resulted in the elimination of his position. Ms. Byrd attested that, as HR Manager, she had personal knowledge of Mr. Dial's employment and termination. She also attested that the restructuring process involved the elimination of eleven positions across several EBRCOA departments, including Mr. Dial's position. According to Ms. Byrd, of the eleven terminated employees, nine were African American and two were White; seven were women and four were men; and eight were over forty years old.

Based on their positions of employment as CEO, CFO, and HR Manager, Ms. Clark-Amar, Ms. Pratt, and Ms. Byrd, respectively, each occupied a role within EBRCOA whereby they had firsthand knowledge regarding personnel decisions allegedly necessitated by the Covid-19 Pandemic; they were clearly competent to testify that the EBRCOA restructuring due to the Covid-19 Pandemic resulted in the elimination of positions. See Himes v. State through Department of Transportation and Office of Engineering, 2021-0138 (La. App. 1 Cir. 6/4/21), 327 So.3d 536, 540 (Based on his occupation and position within DOTD and his inspection of DOTD records, a DOTD engineer's affidavit met the personal knowledge requirement). Mr. Dial has pointed to no authority that would require these affiants to provide additional facts or documentation regarding the elimination of EBRCOA positions. We find the affidavits meet La. C.C.P. art. 967(A)’s personal knowledge requirement; accordingly, this assignment of error is meritless.

We now turn to a de novo review to determine if the trial court correctly granted summary judgment to EBRCOA under the applicable substantive and procedural law.

DISCUSSION

Discrimination Claims Based on Race, Sex, Age, and Disability

Federal and state law prohibit an employer from discriminating against an individual because of his race, color, or sex. See 42 U.S.C. § 2000e-2; La. R.S. 23:332(A)(1).⁵ Similarly, federal and state law prohibit an employer from discriminating against an individual because of his age (applicable to those at least forty years of age) or because of a disability. See 29 U.S.C. § 623(a), 29 U.S.C. § 631(a) and La. R.S. 23:312(A)(1) (age); 42 U.S.C. § 12112(a) and La. R.S. 23:323 (disability).

To establish a prima facie case of discrimination based on race, sex, or age, a plaintiff must show: (1) he was a member of a protected class, (2) he was qualified for the position,⁶ (3) he suffered an adverse employment action, and (4) others outside the protected class who were similarly situated were more favorably treated. See Rogalski v. Education Management, Inc., 2016-0334 (La. App. 1 Cir. 1/3/17), 2017 WL 6614579, *4, writ denied, 2017-0249 (La. 3/31/17), 217 So.3d 363 (race discrimination); Pidgeon v. East Baton Rouge Sheriff's Office, 2021-0740 (La. App. 1 Cir. 3/16/22), 2022 WL 795592, *3 (sex discrimination); Robinson v. Board of Supervisor for University of Louisiana System, 2016-2145 (La. 6/29/17), 225 So.3d 424, 431 (age discrimination).⁷ To establish a prima facie case of discrimination based on disability, a plaintiff must show: (1) he has a disability, as statutorily defined; (2) he was qualified for the position; and, (3) an adverse employment decision was made solely because of the disability. Lindsey v. Foti, 2011-0426 (La. App. 1 Cir. 11/9/11), 81 So.3d 41, 44, writ denied, 2012-0133 (La. 3/23/12), 85 So.3d 92.

Regarding claims of discrimination based on race, sex, age, or disability, if an employer produces summary judgment evidence of a legitimate, non-discriminatory reason for the adverse employment action, the burden shifts to the employee to produce evidence that creates a genuine issue of material fact that the non-discriminatory reason offered by the employer is pretextual. See Pidgeon, 2022 WL 795592 at *4; Burnett v. East Baton Rouge Parish School Board, 2011-1851 (La. App. 1 Cir. 5/3/12), 99 So.3d 54, 60, writ denied, 2012-1217 (La. 9/21/12), 98 So.3d 342.

Discrimination Claims Based on Hostile Work Environment and Retaliation

To establish a prima facie case of harassment based on a hostile work environment,⁸ a plaintiff must show: (1) he belonged to a protected class; (2) he was subjected to harassment; (3) the harassment was motivated by discriminatory animus; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. Burnett, 99 So.3d at 62. Where the harassment is allegedly committed by the plaintiff's immediate supervisor, or successively higher authority, the plaintiff need only show the first four elements. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001); see Levisee v. Excel Scaffolding and Leasing Corporation, 2020-1013 (La. App. 1 Cir. 4/26/21), 2021 WL 1609810, *4. Harassment affects a term, condition, or privilege of employment when it is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and creates an abusive, hostile working environment. Levisee, 2021 WL 1609810 at *4.

To establish a prima facie case of retaliation, a plaintiff must show: (1) he engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Burnett, 99 So.3d at 60.

Summary Judgment Evidence

On appeal, EBRCOA contends its evidence shows a legitimate reason for Mr. Dial's termination and he has not shown that reason to be pretextual. It also contends that, other than his termination, there is an absence of factual support for Mr. Dial's claims that other adverse employment action by EBRCOA constituted unlawful discrimination against him. According to EBRCOA, other than his termination, Mr. Dial cannot show that he suffered more than de minimis adverse employment action and that such is not actionable.

Aside from his termination, Mr. Dial alleged in his petition that EBRCOA engaged in the following adverse employment action against him: other new employees in the Finance Department received framed name/job title certificates by their door, but he did not; in March 2019, Dorphelia Guillory-Patterson, a Black female co-worker, harassed him in front of other EBRCOA employees by making fun of his appearance, age, clothes, and hairstyle; when EBRCOA hired Andrea Shepard, a Black female about forty years old, as a senior accountant, EBRCOA gave Mr. Dial's office to her and moved him to an isolated smaller office with poor lighting and no air conditioning, resulting in ambient temperature in his office between 85 to 90 degrees; he left his office door open for ventilation but the area outside his office was noisy; on multiple occasions, he notified his supervisor, Ms. Pratt, about the horrible work conditions but, other than giving him a fan, EBRCOA did nothing to improve the conditions; a few months later, when Ms. Shepard left EBRCOA employment, Ms. Pratt moved into the vacated office and he remained in the “storage closet”; in June 2019, after having nearly passed out because of the conditions, he provided a physician's letter documenting his diabetes to Ms. Pratt and to Ms. Byrd, but his work conditions did not change; in the fall of 2019, during a Finance Department meeting, Ms. Pratt stated that persons who lived in the City of St. George area of East Baton Rouge Parish were horrible and asked him (but no one else present) if he lived in St George; in January 2020, Ms. Pratt gave him a job assignment with a same-day deadline that precluded him from attending a deceased Black co-worker's memorial service attended by all other EBRCOA home-office employees; in April/May 2020, Ms. Byrd's office was renovated with new air conditioning ducts, but his very nearby office was not; in July 2020, he returned to work in a weakened state after having the Covid-19 virus, and provided EBRCOA with documentation of his illness, but EBRCOA made no accommodations to his work conditions; in October 2020, he told Ms. Pratt and other co-workers that he had been diagnosed and would require treatment for prostate cancer, but EBRCOA made no accommodations to his work conditions; Ms. Pratt gave him “shockingly low” scores in certain categories on his annual performance evaluations, which showed he was treated differently than others and did not fit in; and, Ms. Pratt altered his weekly timesheets to keep him from earning overtime or compensatory pay.

With its summary judgment evidence, the affidavits of Ms. Clark-Amar, Ms. Pratt, and Ms. Byrd, EBRCOA produced evidence showing that Mr. Dial's termination was due to a legitimate, non-discriminatory reason – that is, EBRCOA underwent a restructuring process due to the Covid-19 Pandemic; the goal of the process was to more effectively serve the senior citizen community of East Baton Rouge Parish; the process involved the elimination of eleven positions within EBRCOA, including Mr. Dial's position; and, the eleven employees who were terminated were comprised of varied races, genders, and ages.

With regard to other adverse employment action, EBRCOA produced the following evidence. Ms. Clark-Amar attested that EBRCOA does not give framed certificates to newly-hired employees. However, in his deposition, Mr. Dial testified that a female co-worker, Karen Mahomes, as well as another unnamed male employee, received framed certificates displaying their names outside of their office doors. Regarding the alleged March 2019 harassment incident by co-worker Dorphelia Guillory-Patterson, Mr. Dial testified that, at an EBRCOA employee outing to assist an elderly client, Ms. Guillory-Patterson elicited laughter from co-workers when she told him that he had not done enough work, said “look at your old ragged clothes and your stupid haircut,” told him he was “old and worn out,” and made fun of his older model car. Mr. Dial admitted in his deposition that EBRCOA Chief Operational Officer Shontel LeBouef addressed the incident with him shortly after it occurred, but he filed no written complaint and chose not to pursue the incident further.

Regarding Mr. Dial's office location and conditions, EBRCOA's evidence showed that he was assigned to his office based on “operational efficiencies,” that Finance Department employees were assigned to offices based on their levels and number of interactions with other employees related to work duties and responsibilities, and Mr. Dial's position required far less interaction with others in the Finance Department. Ms. Clark-Amar admitted the EBRCOA building was “old, [dilapidated], and in need of serious renovations” but stated that Mr. Dial's office was average-sized for EBRCOA. She admitted that the building lacked sufficient air conditioning and had lighting issues. She stated Mr. Dial's office was not the only office with lighting issues and that many employees used lamps or natural light to supplement the overhead light. She attested that EBRCOA was aware that the building lacked sufficient air conditioning, but during summer months, EBRCOA frequently sent employees home when the heat became unbearable. And, according to Ms. Pratt, the noise level near Mr. Dial's office was “typical” for a standard office setting.

In his deposition, Mr. Dial testified that the office to which Ms. Pratt moved him when Ms. Shepard was hired (in April/May 2019) was small (a former storage closet), “extremely hot,” without direct air conditioning, had very poor lighting, and that he complained about these conditions to Ms. Pratt, Ms. Byrd, and his co-workers. He stated that, although he requested air conditioning, EBRCOA gave him a fan for his office, while Ms. Byrd's nearby office was painted and new air conditioning vents were put in. According to Mr. Dial, the elevated temperature in his office caused him to perspire; Connie Nelson, an EBRCOA consultant, and Ms. Byrd both told Mr. Dial that he had hygiene issues and body odor. Mr. Dial also testified that, even though EBRCOA knew he wanted to move, two other offices in the vicinity of the Finance Department, which were air conditioned, well-lit, and spacious, were instead given to other, newly-hired, employees in 2020. Regarding the poor lighting, Mr. Dial admitted he brought a lamp from home so he could read, and, that, after about a year, a new “light socket” was installed in his office ceiling that slightly improved the lighting conditions.

Regarding Mr. Dial's alleged disability, Ms. Byrd attested that EBRCOA had no knowledge that Mr. Dial had a disability before June 20, 2019. In her affidavit, Ms. Byrd explained that, on that date, Mr. Dial was observed “sleeping on the job” and was given a warning for the behavior. In his deposition, Mr. Dial explained that he had diabetes, and, after the June 20th incident, he provided EBRCOA a letter from his endocrinologist. In that June 28, 2019 letter, attached as an exhibit to Mr. Dial's deposition, Dr. Ivan Gamboa explained that Mr. Dial's diabetes medication could cause drowsiness. Mr. Dial testified that the poor working conditions worsened his diabetes and caused issues with one of his feet. Mr. Dial also testified that he had skin cancer, prostate cancer, and Covid-19 illness while employed at EBRCOA. He admitted that EBRCOA gave him a walker when he returned to work in a weakened condition after having Covid-19 and never denied him medical leave necessitated by his medical conditions. He also admitted he did not request accommodations based on his cancer diagnoses.

Regarding Ms. Pratt's question to Mr. Dial as to whether he lived in the St. George area of East Baton Rouge Parish, EBRCOA filed no evidence explaining a legitimate reason for the inquiry. In his deposition, Mr. Dial testified that, at the subject Finance Department meeting, Ms. Pratt stated that the St. George community did not want “certain people in certain parts of town to be in their school district” and then asked him, but no one else in the meeting (including a White female employee), if he lived in the St. George area.

Regarding a January 2020 memorial service for a deceased EBRCOA employee, which Mr. Dial alleged he was not told about, but which was allegedly attended by almost all other EBRCOA home office employees who had been told to wear black attire, Ms. Pratt attested in her affidavit that EBRCOA did not organize the event and did not mandate/request that EBRCOA employees wear black attire. According to Ms. Pratt, the denial of Mr. Dial's request to attend the service was based solely on staffing needs and monthly deadlines Mr. Dial was obligated to meet. In his deposition, Mr. Dial testified that he had frequently worked with the deceased employee, Christopher Huddleston, another Finance Department employee. When he arrived at work on the morning of the memorial service, Ms. Byrd and another EBRCOA employee told him the service was that day and asked him why he was not wearing his black shirt. Mr. Dial responded that he did not know about the service, or about wearing a black shirt, but would like to attend. He further testified that, shortly thereafter, his supervisor (Ms. Pratt) gave him a work assignment that had to be done that day. Mr. Dial admitted that he had completed this particular work assignment before and further admitted that he could not really say if he was the only EBRCOA employee who did not attend the memorial service.

Regarding Mr. Dial's allegation that Ms. Pratt's “shockingly low” evaluations of his work performance were evidence that he was treated differently because he did not fit in, EBRCOA filed Ms. Pratt's 2018 and 2019 evaluations of Mr. Dial's employment performance as attachments to her affidavit. The 2018 evaluation showed a score of 2.17 out of 4.00, with a “Needs Improvement” rating and the 2019 evaluation showed a score of 2.5 out of 4.0, with a “Meets Requirement” rating. Ms. Pratt attested that the scores were based on Mr. Dial's work product, customer service, dependability, job knowledge, communication, and teamwork, and were in no way based on his race, color, sex, age, or disability. In his deposition, Mr. Dial admitted that he had no definite names of any co-workers who received “good” performance reviews.

After a de novo review, we conclude the trial court erred in granting summary judgment dismissing Mr. Dial's discrimination claims alleging a hostile work environment and retaliation. EBRCOA's summary judgment evidence points to an absence of factual support that Mr. Dial suffered adverse employment action based solely on his race, or sex, or age, or disability. However, the totality of the summary judgment evidence shows there is a genuine issue of material fact as to whether EBRCOA's termination of Mr. Dial's employment, and other adverse action taken against him during his employment, resulted from a hostile work environment and in retaliation for his complaints regarding unfavorable treatment based on the protected classes of race, sex, age, and disability.

The evidence shows Mr. Dial belonged to several protected classes - he was a sixty-year-old ⁹ White male with health issues in a majority Black female-dominated work environment. The evidence shows there are factually disputed issues regarding whether he was subjected to harassment and retaliation by his co-workers and his supervisor based on these protected classes and whether other EBRCOA employees who were younger than him and/or a different race than him and/or a different sex than him and/or more abled than him were more favorably treated. See Rogalski, 2017 WL 6614579 at *4 (race); Pidgeon, 2022 WL 795592 at *3 (gender); Robinson, 225 So.3d at 431 (age); Lindsey, 81 So.3d at 44 (disability). Further, there are disputed factual issues regarding whether the harassment was sufficiently pervasive to affect a term, condition, or privilege of Mr. Dial's employment - this inquiry is, by its nature, fact-intensive. See Burnett, 99 So.3d at 62; Levisee, 2021 WL 1609810 at *4. Such is shown by, among other evidence, his office location and condition; comments made to him by co-workers and his supervisor; his exclusion from a co-worker's memorial service due to a work assignment; his poor work performance evaluations; and, ultimately, his termination. Lastly, regarding his retaliation claim, this same evidence shows there are also genuine issues of material fact as to whether there is a causal link between EBRCOA's treatment and termination of Mr. Dial and his objections to being disfavorably treated. See Burnett, 99 So.3d at 60.

In sum, because the record shows genuine issues of material fact, we find merit to Mr. Dial's assignments of error numbers two and three. We reverse the summary judgment insofar as it dismissed Mr. Dial's discrimination claims for harassment based on hostile work environment and retaliation based on his membership in the identified protected classes.¹⁰

Wage Claim

In addition to discrimination claims, Mr. Dial also alleged in his petition that EBRCOA violated the overtime pay and anti-retaliation provisions of federal and/or state law and that he was entitled to unpaid and penalty wages. He alleged that, numerous times, he accurately filled out his timesheets but they were changed without his consent or knowledge.

The Louisiana Wage Payment Act, La. R.S. 23:631 et seq., is designed to compel prompt payment of earned wages upon an employee's discharge or resignation. Haber v. Ocean Canyon Properties, Inc., 2017-1472 (La. App. 1 Cir. 5/31/18), 251 So.3d 454, 458. An employer's failure to promptly pay earned wages may subject him to penalty wages. See La. R.S. 23:632. To prove entitlement to such penalty wages, the employee must prove that: (1) wages were due and owing, (2) the employee made demand for payment at the usual place of payment, and (3) the employer failed to pay upon demand. See La. R.S. 23:632(A); Haber, 251 So.3d at 458.

The federal Fair Labor Standards Act (FLSA), requires an employer to pay an employee at least one and one-half times his regular pay compensation for a workweek longer than forty hours. 29 U.S.C. § 207(a)(1). An employee asserting an action for unpaid overtime compensation must prove: (1) an employer-employee relationship existed during the overtime periods claimed; (2) the employee engaged in activities within FLSA's coverage; (3) the employer violated FLSA's overtime wage requirements; and (4) the amount of overtime compensation due. Johnson v. Heckmann Water Resources (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014).

In support of its motion for summary judgment, EBRCOA filed Ms. Byrd's affidavit, wherein she attested that EBRCOA employees were responsible for tracking their working time each day. Ms. Byrd attached Mr. Dial's timesheets and paystubs as exhibits to her affidavit; these exhibits do not show overtime work. In opposition to the summary judgment, Mr. Dial claimed his timesheets were altered. However, in his deposition, he admitted he had no records to support this assertion. He stated that his time was “docked” about fifteen minutes per day on “a regular basis,” and he was automatically charged with a thirty-minute lunch break, but he did not have evidence establishing the days on which the alterations were made. Rather, he testified that EBRCOA had the necessary evidence to show when his timesheets were altered and when his pay was docked.

Upon de novo review, we find the trial court properly granted summary judgment to EBRCOA on Mr. Dial's wage claim. With its summary judgment evidence, EBRCOA has pointed to an absence of fact for Mr. Dial's allegation that EBRCOA violated the overtime pay and anti-retaliation provisions of federal and/or state law. After filing his petition in January 2022, Mr. Dial had over two years to conduct discovery before EBRCOA filed its motion for summary judgment in March 2024. With discovery, Mr. Dial could have obtained the documents he now claims support his wage claims and could have authenticated these documents via affidavit or deposition. He did not. Mr. Dial offered nothing to create a genuine issue of material fact, in spite of having access to evidence that purportedly supports his position. Accord Elledge v. Becnel, 2022-0491 (La. App. 1 Cir. 11/4/22), 354 So.3d 688, 693. Thus, we find summary judgment is warranted as to this claim.

CONCLUSION

For the above reasons, we affirm in part and reverse in part the June 17, 2024 judgment. We affirm the judgment insofar as it granted summary judgment in favor of the East Baton Rouge Council on Aging and dismissed Gregory Dial's claims for discrimination based solely on race, age, sex, and disability and his claims for unpaid and penalty wages, with prejudice. We reverse the judgment insofar as it granted summary judgment in favor of the East Baton Rouge Council on Aging and dismissed Gregory Dial's claims for harassment based on a hostile work environment and for retaliation on the basis of race, age, sex, and disability. We remand this matter to the trial court for further proceedings. We assess costs of the appeal in the amount of $2,527 to the East Baton Rouge Council on Aging.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

I agree with the trial court's grant of summary judgment in favor of the East Baton Rouge Parish Council on Aging. I disagree with the majority's decision to reverse that part of the trial court's summary judgment in favor of the East Baton Rouge Parish Council on Aging and dismissing Gregory Dial's claims for harassment based on a hostile work environment and for retaliation on the basis of race, age, sex, and disability.

Every act of harassment, although reprehensible, does not necessarily give rise to a hostile work-environment claim. To be actionable, the harassment must be sufficiently severe or pervasive as to alter the conditions of the victim's employment and create an abusive, hostile environment. In general, hostile work-environment harassment is characterized by multiple and varied incidents of offensive conduct which have the cumulative effect of creating a hostile working environment for the employee thus victimized. Gautreau v. EnLink Midstream Operating GP, LLC, 2021-0796 (La.App. 1 Cir. 5/25/22), 342 So.3d 939, 952, writ denied, 2022-01010 (La. 10/12/22), 348 So.3d 68; Assamad v. Percy Square & Diamond Foods, L.L.C., 2007-1229 (La.App. 1 Cir. 7/29/08), 993 So.2d 644, 648, writ denied, 2008-2138 (La. 11/10/08), 996 So.2d 1077. Here, Mr. Dial did not offer evidence that the alleged harassment was sufficiently severe or pervasive as to alter the conditions of his employment and create an abusive, hostile environment.

To establish a prima facie case of retaliation, a plaintiff must show that: (1) she participated in an activity protected under 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. If the employee establishes a prima facie case, the burden shifts to the employer to state a legitimate, non-retaliatory reason for its decision. After the employer states its reason, the burden shifts back to the employee to demonstrate that the employer's reason is actually a pretext for retaliation, which the employee accomplishes by showing that the adverse action would not have occurred “but for” the employer's retaliatory motive. Dobyns v. University of Louisiana System, 2018-0811 (La.App. 1 Cir. 4/12/19), 275 So.3d 911, 925, writ denied, 2019-00950 (La. 9/24/19), 278 So.3d 977. In this matter, the Council provided summary judgment evidence establishing that it had a legitimate, non-retaliatory reason for the alleged adverse actions. This evidence shifted the burden to Mr. Dial to demonstrate that the Council's reason was pretextual. Mr. Dial did not offer summary judgment evidence showing that the alleged adverse actions would not have occurred “but for” the Council's retaliatory motive.

Accordingly, I respectfully dissent in part.

On Application for Rehearing filed on 01/13/2026 by East Baton Rouge Parish Council on the Aging, Inc.

Rehearing denied.

FOOTNOTES

1.   Although the caption of the petition names the defendant as “East Baton Rouge Parish Council on the Aging, Inc.,” the defendant's proper name is “East Baton Rouge Council on Aging.”

2.   Mr. Dial's affidavit in support of his summary judgment opposition was unsigned when filed. At the summary judgment hearing, the trial court allowed Mr. Dial's attorney to introduce a signed copy of the affidavit over EBRCOA's objection. See La. C.C.P. art. 967(A) (The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.) We do not address the propriety of Mr. Dial's purported adoption of the referenced documents as his sworn affidavit testimony. His deposition was properly filed as summary judgment evidence by EBRCOA, and his petition was attached as an exhibit to his deposition. And, reference to his EEOC Charge of Discrimination and Supplemental Reply is not necessary to decide this appeal.

3.   In a fifth assignment of error, Mr. Dial contends he was entitled to “further discovery and development of evidence and testimony, both prior to trial of this matter ․ and at trial.” Because Mr. Dial failed to brief this assignment of error, we consider it abandoned and will not address it. See Uniform Rules – Courts of Appeal, Rule 2-12.4(B)(4); Robinson v. Pelican Waste & Debris, LLC, 2023-0943 (La. App. 1 Cir. 9/3/24), 394 So.3d 893, 897, n.3, writ denied, 2024-01208 (La. 12/11/24), 396 So.3d 961.

4.   In accordance with La. C.C.P. art. 966(D)(2), Mr. Dial objected to Ms. Clark-Amar and Ms. Pratt's affidavits in his opposition to EBRCOA's motion for summary judgment. (He did not object to Ms. Byrd's affidavit in his opposition.) Apparently, the trial court did not specifically rule on Mr. Dial's objection before ruling on EBRCOA's motion. Nevertheless, we deem the trial court's silence as a denial of the objection. See Lucas v. Maison Insurance Company, 2021-1401 (La. App. 1 Cir. 12/22/22), 358 So.3d 76, 89.

5.   Louisiana Revised Statutes 23:332 was recently amended, but the amended version of the statute is not applicable herein. 2025 La. Acts No. 100, § 1.

6.   Mr. Dial's qualification for his EBRCOA position is not at issue in this appeal.

7.   Robinson, 225 So.3d at 431, words the statutory requirements for an age discrimination claim as:Under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973), in order to establish a prima facie case of employment discrimination based on age, a plaintiff must prove that: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge or demotion; and (4) he was either (i) replaced by someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged because of his age.

8.   Louisiana is a fact pleading state that values substance over form and does not require the use of magic titles or terminology as a threshold requirement for validly pleading an action. Robins v. Coles, 2023-1343 (La. App. 1 Cir. 8/26/24), 395 So.3d 345, 352, writ denied, 2024-01179 (La. 12/11/24), 396 So.3d 965. Although Mr. Dial does not specifically allege a “hostile work environment claim,” his allegations essentially assert such a claim.

9.   When hired in January 2018, Mr. Dial was fifty-eight-years old. When terminated in January 2021, he was sixty years old.

10.   Based on our resolution of these assignments of error, we pretermit discussion of Mr. Dial's separate assignment of error whereby he argues the trial court erred in applying the “same actor inference” to EBRCOA's employment decisions.

GREENE, J.

McClendon, C.J., dissents in part for reasons assigned. Penzato, J., dissents in part for the reasons assigned by Judge McClendon.