Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—W.D. La.: Caucasian hospital CEO raises fact issues regarding purported race-based removal, (Feb 10, 2025)

By Kathleen Kapusta, J.D.

The CEO was removed, ostensibly for job abandonment, after missing only one board meeting.

Allowing a white hospital CEO, who had been removed from his position purportedly due to insubordination and job abandonment after missing one board meeting, to proceed to trial on his race-based discrimination claims, a federal court in Louisiana cited evidence an African-American hospital board member told the CEO of his intent to have an Africa-American board majority, an African-American CEO, and African-American management of the hospital. There was also evidence African-American board members were elected after the expiration of the Caucasian board members’ terms, which shifted the racial make-up of the board (Topolewski v. Police Jury, No. 3:23-CV-00258 (W.D. La. Feb. 4, 2025)).

The employee entered into an employment agreement in 2014 to serve as the CEO of the hospital. At the time of his termination in October 2022, the agreement was set to expire in February 2023.

LNP’s termination. In August 2022, the hospital’s CFO informed the CEO that a licensed nurse practitioner (LNP) was falsifying medical records to obtain a contractual bonus. Although the CEO initially responded “let it go,” when he learned the next day that the LNP had falsified over 120 records, he contacted outside counsel who investigated and recommended her termination. When the LNP admitted to 66 incomplete medical records, she was fired.

The CEO then sent a copy of the investigative report to the hospital board, which was made up of three Caucasian and two African-American members. One of the African-American board members told the CEO he believed the report was false and the LNP seemed to be a great person. According to the CEO, the board member also accused outside counsel of making a false report, used the word “racial,” and stated his intention of gaining an African-American board majority. The CEO memorialized this conversation in an email to one of the Caucasian board members.

Board members dismissed. When the CEO learned that the board agenda for the upcoming September meeting listed a hearing for the LNP’s termination, he allegedly canceled the meeting. In October, the police jury, which created the hospital service district to operate the hospital, voted to dismiss two of the Caucasian board members because their terms had allegedly expired. According to the two board members, they did not have any warning or notice that they had to submit written requests to the police jury to remain on the hospital board. The two African-American board members, however, were given notice their terms were set to expire, both wrote letters asking to be re-appointed, and both were reappointed.

Special board meeting. Also in October, the board issued a notice of a special meeting. Believing the board was illegally constituted, the CEO refused to attend. On the day of the meeting, the CEO was removed effective immediately and the LNP was reinstated. An African-American doctor was appointed as interim CEO, where he remained for two years when a Caucasian male was hired as the permanent CEO.

Replacement. Claiming race discrimination in violation of Title VII and state law, the CEO sued the hospital service district and the parish service district board. The defendants, moving for summary judgment, argued that the CEO could not show he was replaced by someone outside his protected class. Although the CEO pointed to the doctor who replaced him for two years as interim CEO, the court noted that when analyzing the fourth element of a prima facie case, “the Court must compare plaintiff to his permanent replacement employee, as opposed to a temporary fill-in.” And while the Fifth Circuit had not expressly addressed the issue, the court here explained that “it is proper to consider any replacement that is not ‘called, deemed or viewed’ as a temporary replacement.’”

Thus, said the court, the question was whether the doctor was intended to be a permanent or temporary replacement. Here, the court pointed to evidence, including sworn affidavits of those directly involved in the hiring process, meeting minutes, and employment agreements, showing the defendants’ intent when hiring the doctor was that he would serve as interim CEO and nothing more. Nor, observed the court, was a prolonged job search of this type in the rural parish unprecedented. Thus, the court found the doctor was the CEO’s interim replacement.

Expansive view. Using an expansive view of the fourth element, however, to determine if race was a motivating factor in the termination decision, the court found the CEO established a material fact issue concerning an inference of unlawful discrimination. Specifically, the CEO testified that the African-American board member told him of his intent to have an African-American majority board, an African-American CEO, and African-American management of the hospital. While the CEO memorialized this conversation by email to another individual, the board member did not recall the conversation.

The CEO also testified that after his termination, the remaining Caucasian board members were not given notice of board member renewal, which caused their terms to expire. There was also evidence African-American members were elected after the Caucasian members’ expiration, which shifted the statistics of the board. The CEO further asserted that he was not given sufficient notice regarding the reasoning of his removal. Moreover, he was allegedly removed for abandoning his position after missing only one board meeting.

Pretext. The court also found, for many of these same reasons, sufficient evidence of pretext to preclude summary judgment including evidence the CEO was aware of the African-American board member’s agenda in creating an African-American majority board and evidence suggesting the racial agenda was achieved after three Caucasian members were removed from office. Thus, the court denied summary judgment against this claim.

The case is No. 3:23-CV-00258.

Judge: Doughty, T.

Attorneys: Randall A. Smith (Smith & Fawer) for Theodore Topolewski. Steven M. Oxenhandler (Gold Weems Bruser Sues & Rundell) for Madison Parish Police Jury.

Companies: Madison Parish Police Jury

Cases: RaceDiscrimination Discrimination Discharge LouisianaNews