           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 6, 2009

                                       No. 08-30980                    Charles R. Fulbruge III
                                                                               Clerk

SHARON M CRARY

                                                   Plaintiff - Appellant
v.

EAST BATON ROUGE PARISH SCHOOL BOARD

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                 No. 3:04-CV-588


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       In 2003, Sharon Crary, a 63-year-old white female, was demoted from her
position as Director of Special Education Services in the East Baton Rouge
Parish School Board and subsequently retired. She alleged in federal district
court that she was constructively discharged from her position and that the
school board discriminated against her on the basis of race and sex in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., and on the
basis of age in violation of the Age Discrimination in Employment Act of 1967,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
29 U.S.C. §621, et seq. She also asserted a state law claim under Louisiana
Revised Statutes Annotated § 17:444(B). The district court granted summary
judgment in favor of the school board. Although it gave reasons in remarks from
the bench, those remarks never explicitly addressed her state law claim.
      We assume, without deciding, that Crary was constructively discharged,
and that she was replaced by a younger, black male. We conclude, however,
that there is insufficient evidence in the summary judgment record that the
school board’s stated reason for the discharge (that she mishandled the reporting
of special education students to Louisiana’s Department of Education, with
disastrous consequences) was a pretext for discrimination on the basis of race,
sex or age. The only evidence of age discrimination to which Crary could point
was testimony by Annette Mire, head of the school board’s Human Resources
department.    Mire stated that it was important to Clayton Wilcox, the
Superintendent, that the school board project the image of youth and vitality
when recruiting new teachers “so that there would be more of an identity with
the younger graduates.” That evidence does not support Crary’s claim of age
discrimination in connection with her position and responsibilities as Director
of Special Education. Accordingly, the district court’s judgment on Crary’s race,
sex and age discrimination claims is affirmed.
      Crary’s state law claim is based on §17:444(B)(4)(c)(iii) of the Louisiana
Revised Statutes, which states:
      The employee shall be retained during the term of a contract unless
      the employee is found incompetent or inefficient or is found to have
      failed to fulfill the terms and performance objectives of his contract.
      However, before an employee can be removed during the contract
      period, he shall have the right to written charges and a fair hearing
      before the board after reasonable written notice.
Crary asserts, inter alia, that the school board did not follow this procedure as
there was no notice provided (let alone in a reasonable amount of time), no
hearing was held, and no hearing could have been held in such a short period of

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time. We are unsure of the district court’s basis for dismissing this claim. We
thus vacate that portion of the judgment and remand for further consideration.
Additionally, since this state law claim is the only remaining claim, we urge the
district court to consider declining to address the state law claim as permitted
by 28 U.S.C. § 1367(c). The decision of the district court on this point, however,
is entirely within its discretion. The attention of all parties is specifically
directed to § 1367(d).
      For the foregoing reasons, we AFFIRM the district court’s judgment on
the discrimination claims and VACATE and REMAND the judgment on the
state law claim. Costs shall be borne by Crary.




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