IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30445

JOSETTE M. RIPOLL,

Plaintiff - Appellant

v.

PATRICK DOBARD; LOUISIANA STATE DEPARTMENT OF EDUCATION, 

on behalf of Recovery School District; RECOVERY SCHOOL DISTRICT, 

through the Louisiana State Department of Education,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CV-6143

Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Plaintiff Josette M. Ripoll appeals the summary judgment in favor of 

Defendants Patrick Dobard, Louisiana State Department of Education, and 

Recovery School District (collectively, “Defendants”) on Ripoll’s claim of agebased employment discrimination in violation of the Age Discrimination in 

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. We AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 15, 2015

Lyle W. Cayce

Clerk

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I. Background

Ripoll served as principal of Schaumberg Elementary School within 

Louisiana’s Recovery School District (“RSD”) from July 2007 until her 

termination in July 2012. She was 61 years of age at the time of her 

termination. Prior to that position, she worked one year as a principal, five 

years as an assistant principal, one year as a coordinator of instruction, and 

nineteen years as a teacher. Ripoll holds bachelor’s and master’s degrees in 

elementary education and took an additional thirty graduate hours in school 

administration.

RSD evaluated and tracked the progress of its schools using School 

Performance Scores (“performance scores”), which were primarily based on 

student achievement on state-mandated LEAP examinations. RSD sought to 

have each school’s performance score increase by ten points per year. It

assigned letter grades (i.e. A, B, C, D, and F) to the scores according to 

standards set by the Louisiana Board of Elementary and Secondary Education 

(“the Board”). Originally, a score of 60 (out of 200) was the threshold for a D,

with anything lower being an F. Over time, the Board gradually increased the 

levels so that by 2011 the threshold for a D was a 65, and by 2012 the threshold 

for a D was a 75. With Ripoll as Principal, Schaumburg had the following 

performance scores: 61.7 in 2009, 70.6 in 2010, 69.9 in 2011, and 71.8 in 2012. 

Given these scores and the Board’s escalating metrics, Schaumburg was a Drated school from 2009 through 2011 and an F-rated school in 2012. 

Schaumberg’s performance score was the second highest of the RSD schools in 

2009, but by 2012 it dropped to fifth. In 2012, Schaumburg had the secondlowest student LEAP examination scores out of all RSD elementary schools, 

with the lowest performing school being administratively phased out after 

primarily serving students who had failed the examination in prior years.

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In January 2012, Monica Boudouin, RSD’s Director of Student 

Achievement, conducted mid-year evaluations of school leaders, including 

Ripoll. Boudouin rated Ripoll on twenty-three performance items as follows: 

six “Developing,” fourteen “Proficient,” and three “Exemplary.” The evaluation 

listed the goals for Schaumburg as including a performance score of 80 and

10% increases in all areas of LEAP testing. Boudouin evaluated Ripoll as 

performing well in the area of effective planning and as needing improvement 

in the areas of teaching and learning. Boudouin noted that rigorous 

instruction was not displayed consistently across all classrooms and that there 

needed to be “[m]ore focus on closing achievement gaps between subgroups of 

students and using data to quickly determine appropriate interventions for 

students or subgroups not making progress.”

Following the 2011–2012 school year, Boudouin discussed with RSD’s 

Chief of Staff, Nash Crews, that she believed Ripoll had not made sufficient 

progress to justify retaining her as Schaumberg’s principal. Crews attested 

that she and Boudouin determined that Ripoll should be terminated as 

principal for the following reasons: (1) student progress, as represented by 

performance scores, had effectively stagnated under Ripoll’s supervision while 

almost all other schools improved and surpassed Schaumburg; (2) 

Schaumburg went from a D-rated school to an F-rated school; (3) the goals for 

Schaumberg of reaching a target performance score of 80 and improving 

student performance in all LEAP areas by 10% were not met, indeed

performance went down in some LEAP areas; and (4) Ripoll struggled to 

properly manage and evaluate her faculty. Before a formal decision was made, 

Ripoll requested and received a pre-termination hearing before Crews. After

the hearing, Crews recommended to Superintendent Patrick Dobard—who had 

the final decision-making authority—that Ripoll be removed from the principal 

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position. Dobard notified Ripoll that he concurred in Crews’s recommendation, 

removing her from the principal position. Dobard also notified Ripoll that she 

could continue at RSD as a teacher, but Ripoll did not accept the teaching 

position.

Ripoll was replaced by Taylor Alston, a 33-year-old teacher from Atlanta, 

Georgia. Alston held a bachelor’s degree in English literature and a master’s 

degree in education, and had eight years’ experience as a teacher.

Ripoll filed an Equal Employment Opportunity Commission (“EEOC”) 

age discrimination charge with the Louisiana Commission on Human Rights. 

In the charge, she swore under the penalty of perjury that she was told by 

Sametta Brown, RSD’s Executive Director of Human Resources, that she “was 

being discharged because of [her] age.” 

After she received a notice of right to sue letter from the EEOC, Ripoll 

filed suit against Dobard and RSD in Louisiana state court, alleging an age 

discrimination claim under the ADEA and a state law breach of contract claim. 

The Defendants removed the case to federal court and later filed a motion for 

summary judgment. The district court granted the Defendants’ motion for 

summary judgment on Ripoll’s age discrimination claim and declined pendent 

jurisdiction over Ripoll’s state law contract claim pursuant to 28 U.S.C. 

§ 1367(c)(3). Ripoll timely appealed the grant of summary judgment on her 

age discrimination claim.

II. Standard of Review

We review the district court’s grant of summary judgment de novo, 

construing all facts and inferences in the light most favorable to Ripoll, the 

nonmoving party. See EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 

(5th Cir. 2009). Summary judgment is appropriate when “there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

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matter of law.” FED. R. CIV. P. 56(a). We may affirm the district court’s grant 

of summary judgment on any ground supported by the record and presented to 

the district court. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).

III. Discussion

“Where a defendant has moved for summary judgment on an 

employment discrimination claim based on circumstantial evidence, as in this 

case, we apply the burden-shifting framework established in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973).” Turner v. Kan. City S. Ry., 675 

F.3d 887, 892 (5th Cir. 2012). Under this framework, which was employed by 

the parties and district court in this case,1 Ripoll must first establish a prima 

facie case of age discrimination by showing that: (1) she was discharged from 

her position; (2) she was qualified for the position; (3) she was at least forty 

years of age; and (4) she was either (i) replaced by someone substantially 

younger or (ii) otherwise discharged because of her age. See Jackson v. Cal-W. 

Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010); see also O’Connor v. Consol. 

Coin Caterers Corp., 517 U.S. 308, 311–13 (1996) (addressing the fourth 

element of the prima facie case under the ADEA). As did the district court, we 

assume, without deciding, that Ripoll established a prima facie case. Thus, 

under the McDonnell Douglas framework, the Defendants bear the burden of 

coming forward with a legitimate, non-discriminatory reason for terminating 

 

1 Ripoll stated in the district court and on appeal that Brown’s statement that she 

was terminated because of her age constituted direct evidence of discrimination. While “the 

McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of 

discrimination,” by urging only this framework in the district court and on appeal and by 

failing to argue that it does not apply, Ripoll waived any argument that the evidence should 

be considered outside the McDonnell Douglas framework and under a direct evidence 

standard. Turner, 675 F.3d at 892 n.3 (citation and internal quotation marks omitted); see,

e.g., Knatt v. Hosp. Serv. Dist. No. 1, 327 F. App’x 472, 484 (5th Cir. 2009) (unpublished)

(applying the McDonnell Douglas framework where the plaintiff “nowhere acknowledge[d] 

direct evidence as an alternative to the McDonnell Douglas analysis,” nor did he argue that 

“his claim satisfie[d] a direct evidence standard as set forth in relevant precedent”).

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Ripoll. See Jackson, 602 F.3d at 378 & n.12. The Defendants met their burden

by pointing to the following reasons, which are supported by evidence in the 

record: Schaumburg’s performance scores were stagnant between 2010 and 

2012, while other schools improved; Schaumburg’s stagnation resulted in its 

downgrade from a D-rated school to an F-rated school; Schaumburg did not 

meet the RSD goals of a performance score of 80 or a 10% increase in the 

passage rate on the annual LEAP examinations; and Ripoll did not properly 

evaluate her staff. 

Accordingly, the final burden rests with Ripoll to point to evidence

showing “that the legitimate reasons offered by the defendant[s] were not 

[their] true reasons, but were a pretext for discrimination.” Id. at 378 n.12

(quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000)). 

Moreover, the evidence must be sufficient to create a fact issue “that age was 

the ‘but-for’ cause of the challenged adverse employment action.” Moss v. BMC 

Software, Inc., 610 F.3d 917, 927 (5th Cir. 2010) (quoting Gross v. FBL Fin. 

Servs., 557 U.S. 167, 180 (2009)). Ripoll “may show pretext either through 

evidence of disparate treatment or by showing that the employer’s proffered 

explanation is false or unworthy of credence.” Jackson, 602 F.3d at 378–79

(citation and internal quotation marks omitted). Ripoll does not point to 

evidence of disparate treatment, but argues that pretext is shown by the 

following: (1) Schaumberg’s performance scores were above the RSD average; 

(2) Ripoll received a positive evaluation in January 2012; (3) a principal of a 

lower-performing school was transferred to a newly created administrative 

position; and (4) Brown told her she was being dismissed because of her age. 

The evidence shows that Schaumberg’s performance scores were above 

the RSD average for the 2008–2009, 2009–2010, and 2010–2011 school years. 

Also, Ripoll’s January 2012 evaluation could be considered overall positive 

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since a majority of her ratings were “Proficient” or “Exemplary,” with only six 

out of twenty-three categories being rated “Developing.” However, neither of 

these facts contradicts or draws into question RSD’s explanation that it 

terminated Ripoll for the following reasons: Schaumberg’s performance scores

stagnated and resulted in an F-rating; Schaumburg did not meet RSD’s stated 

goals; and Ripoll did not properly evaluate her staff. Each of these remains a 

logical and legitimate reason for dismissing Ripoll as a principal even if

Schaumberg maintained above-average performance scores in earlier years 

and Ripoll received what might be considered an overall positive evaluation in 

January of 2012. Cf. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899

(5th Cir. 2002) (“Merely disputing Appellee’s assessment of his performance 

will not create an issue of fact.”).2

Ripoll additionally points to the fact that Al Jones, the 54-year-old 

principal of another school that had a lower performance score than 

Schaumberg, was transferred to a newly established position focusing on 

discipline. This also does not draw into question the reasons given for Ripoll’s 

termination. The difference in age between Jones and Ripoll is not significant, 

and both were terminated from their principal positions due to performance 

issues. Both were also offered positions below the principal or assistant 

principal level. While Ripoll was offered a teaching position, Jones was offered 

an administrative position focusing on discipline. The Defendants explained 

that Jones was offered this particular position because he had a proven record 

with respect to student discipline. Ripoll does not explain why Jones’s

placement in this position, as opposed to a teaching position, might 

 

2 The fact that Schaumberg had above average scores in prior years does not rebut 

the Defendants’ stated reasons, especially since the average is skewed downward by a school 

with a very low performance score (such as the score of 28.8 received by the lowest-performing 

RSD elementary school).

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demonstrate that the Defendants’ reasons for her termination are false or 

unworthy of credence.

Finally, Ripoll points to the recounting in her EEOC charge that Brown 

told her that she was being discharged because of her age.3 This statement 

does not demonstrate pretext or discrimination because Ripoll has produced no 

evidence about Brown’s basis of knowledge for the statement that would allow 

an inference that age was the reason for Ripoll’s dismissal.4 There is no 

evidence in the record that Brown was responsible for the employment 

decision, had influence over the employment decision, or was privy to the 

decision-making process. Instead, the undisputed evidence shows that it was 

Boudouin, Crews, and Dobard who participated in the decision to terminate 

Ripoll. It may be Brown’s sheer speculation or uninformed opinion that age 

was the reason for Ripoll’s termination. Ripoll simply has not produced 

evidence on this issue.

Accordingly, we hold that Ripoll failed to adduce evidence that would 

raise a fact issue “that the legitimate reasons offered by the defendant[s] were 

not [their] true reasons, but were a pretext for discrimination.” Jackson, 602 

F.3d at 378 n.12 (citation and internal quotation marks omitted). Ripoll 

likewise did not put forth sufficient evidence to raise a fact issue “that age was 

the ‘but-for’ cause of the challenged adverse employment action.” Moss, 610 

F.3d at 927 (quoting Gross, 557 U.S. at 180). Notably, Ripoll repeatedly stated

in the district court that the Defendants replaced her for political reasons with 

 

3 The Defendants argue that this statement in Ripoll’s EEOC charge is not competent 

summary judgment evidence because it is double hearsay and Brown denies saying it. 

However, we need not resolve whether the statement at issue is admissible because even

assuming the admissibility and truth of Ripoll’s assertion about the statement, she has failed 

to show pretext.

4 Ripoll did not take any depositions or otherwise diligently pursue discovery that 

might have revealed Brown’s role in, or knowledge of, the termination process.

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someone from outside of New Orleans, in addition to arguing that the decision 

was based on her age. An additional factor contributing to her termination is 

not automatically fatal to her claim. See Leal v. McHugh, 731 F.3d 405, 415 

(5th Cir. 2013) (explaining that but-for cause does not mean “sole cause”). Yet, 

this factor combines with the dearth of evidence of pretext to demonstrate that 

Ripoll failed to present sufficient evidence that age was the but-for cause of her 

termination. Summary judgment was properly granted for the Defendants.

AFFIRMED.

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