Tedesco v. Pearson Education, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TIFFANIE TEDESCO CIVIL ACTION

VERSUS No. 21-199

PEARSON EDUCATION, INC., ET AL. SECTION I

ORDER & REASONS

Plaintiff Tiffanie Tedesco (“Tedesco”) alleges that her former employer,

defendant Pearson Education, Inc. (“Pearson”), discriminated against her based on

her genetic information and mental disability. Now before the Court is Pearson’s

motion1 to dismiss Tedesco’s complaint, under Federal Rule of Civil Procedure

12(b)(6), for failure to state a claim. Tedesco opposes2 the motion, to which Pearson

replied.3 The motion is granted in part and denied in part for the reasons below.

I.4

Tedesco was a high-performing sales representative for Pearson’s Higher

Education Division.5 In 2017 and 2018, Pearson awarded her with membership in

the President’s Club, an honor reserved for the top 1% of Pearson’s sales personnel.6

In 2018, she won the Pearson Award for having the highest cumulative sales over the

1 R. Doc. No. 12.

2 R. Doc. No. 15.

3 R. Doc. No. 20.

4 The following facts were taken exclusively from Tedesco’s complaint, and the Court

accepts them as true for purposes of deciding this Rule 12(b)(6) motion.

5 R. Doc. No. 1, at 4 ¶¶ 12, 16, 19.

6 Id. at 5 ¶ 21.

previous three years.7 She was also selected by Pearson’s executive board to join the

firm’s Developing Leaders program, a “highly coveted” opportunity in a program that

“exists to transition employees into upper-management level roles.”8 In short,

Pearson “considered [her] a leader,” “placed her in a training path for leadership and

management roles,” and “highly regarded” her “opinions.”9

After her father’s tragic suicide on December 31, 2018, however, Tedesco

struggled to maintain that success.10 She sought psychiatric treatment in January

2019 and was “[u]ltimately” diagnosed with “Major Depressive Disorder, Post-

Traumatic Stress Disorder, and Passive Suicidal Ideation.”11

Tedesco’s Early Interactions with Supervisors & Co-Workers

The fallout after her father’s death bled into Tedesco’s work. In mid-January

2019, her direct supervisor, Ty Olden (“Olden”), asked her to take a “certification test,

which was an intensive internal test covering a wide range of higher education

subjects and disciplines relevant to Pearson’s product catalog.”12 But because “Olden

expected Ms. Tedesco to perform at her usual high-achieving level, Ms. Tedesco felt

pressured to specify to Mr. Olden that her father died from a violent suicide and she,

therefore, feared she could not perform on the test as expected.”13

7 Id. at 5 ¶ 23.

8 Id. at 5 ¶¶ 21–22.

9 Id. at 4 ¶¶ 17–18.

10 Id. at 5 ¶¶ 24–26.

11 Id. at 6 ¶ 33. She also “learned,” in “mid-March of 2019,” that “her great-

grandmother also died by suicide.” Id. at 6 ¶ 34. The complaint does not allege,

however, that Pearson ever learned of or elicited this information from Tedesco.

12 Id. at 5 ¶ 27.

13 Id. at 6 ¶ 28.

Olden explained that, to relieve Tedesco of her obligation to take the

certification test, “he would need to tell” Jeanne Bronson (“Bronson”), Pearson’s Vice-

President of Sales and his direct supervisor.14 Tedesco responded that she

“underst[oo]d” if Olden needed to tell Bronson, but she “clarified that the details were

‘my story to tell.’”15 That is, Olden could share that information with Bronson only

“to the extent necessary to exempt Ms. Tedesco from the certification test.”16

However, Tedesco alleges that Olden “gratuitously shared [her] private genetic

information regarding [her] family history of suicide and [her] genetic predisposition

to mental health issues with” Bronson.17 And Bronson, in turn, shared that news

with Pearson’s managing director, “R.B.”18

In March 2019, allegedly per Bronson’s instructions, R.B. then called Tedesco

to “obtain more information from Ms. Tedesco.”19 “R.B. began the conversation by

saying ‘my condolences about your father.’”20 R.B. then “shared intimate details of

her own life involving a suicide and thereby prompted” Tedesco to “open up,”

prompting Tedesco to share “details” regarding her “private genetic information and

mental health.”21 Tedesco claims that these actions—requesting, then sharing

internally, information concerning her father’s suicide—among other retaliatory

14 Id. at 6 ¶ 29.

15 Id. at 6 ¶ 30.

16 Id. at 6 ¶ 31.

17 Id. at 6 ¶ 32.

18 Id. at 7 ¶ 36. R.B.’s full name is not provided in the complaint.

19 Id. at 7 ¶ 38.

20 Id. at 7 ¶ 39.

21 Id. at 7 ¶ 39.

actions described below, violated her rights under the Genetic Information

Nondiscrimination Act.

On April 3, 2019, Bronson suggested that Tedesco “update her resume because

layoffs were coming.”22 The next day, after Tedesco had a meal with a client, Bronson

arrived at the restaurant and “became agitated with Ms. Tedesco.”23 Tedesco claims

that Bronson “raised her voice” at Tedesco and “said ‘You’re acting manic! You need

to get some help. I’ve never dealt with suicide before.’”24 Bronson later admitted that

she shared “the details of” Tedesco’s father’s suicide with R.B. and asked her to

“question [Tedesco] regarding her mental health status.”25 On April 7, 2019, Tedesco

filed for FMLA leave, to begin immediately, because Pearson management was

“treating her with severe hostility and harassing her due to her mental condition.”26

On July 1, 2019, Tedesco’s tenure as Pearson’s “Evidence Field Champion”—a

“Pearson Peer Leadership Role” that is “reserved for high-achieving sales

representatives”—was renewed for another eighteen months, to begin in August 2019

and end January 2021.27

Tedesco returned from her first FMLA leave on July 15, 2019.28 However,

Tedesco complained that “her superiors . . . treated her as if she were untrustworthy

22 Id. at 7 ¶ 40.

23 Id. at 7 ¶ 42

24 Id. at 7 ¶ 43.

25 Id. at 8 ¶ 45.

26 Id. at 8 ¶ 51.

27 Id. at 10 ¶ 64–66.

28 Id. at 10 ¶ 67.

and incompetent to perform her job.”29 For example, when Tedesco attempted to

relay to Olden a problem that a client was having, Olden responded by screaming and

cursing at her.30 Tedesco describes this as a “pattern of behavior from Pearson

management.”31 That “discriminatory and harassing treatment . . . exacerbated”

Tedesco’s depression, PTSD, and suicidal ideation.32

Tedesco’s Accommodation Requests & Pearson’s Response

On September 14, 2019, Tedesco filed an internal complaint with Pearson

“regarding Ms. Bronson’s hostility towards her.”33 Between then and November

2019, Tedesco “reported several incidents of harassment, retaliation, [and] hostile

work environment” to human resources, in which she “attempted to receive

reasonable accommodation.”34 The accommodations she requested “were (1) to not be

forced to take leave; and (2) to be placed in a line of reporting wherein she could work

free from the ongoing hostility, harassment, and questioning regarding her mental

condition and competency.”35 Such requests would allegedly not have been difficult

for Pearson to accommodate, since Pearson “will typically have some position

available within their global company to offer an employee.”36

29 Id. at 10 ¶ 68.

30 Id. at 10 ¶ 69. Olden “screamed at her[,] ‘Are you calling about [redacted]

University? I don’t want to fucking hear it!’” Id.

31 Id. at 10 ¶ 70.

32 Id. at 10 ¶ 71.

33 Id. at 11 ¶ 73.

34 Id. at 11 ¶ 76.

35 Id. at 11 ¶ 77.

36 Id. at 16 ¶ 113.

On September 25, 2019, a Pearson human resources representative told

Tedesco that R.B. thought she should go back on leave.37 Tedesco responded that she

did not want to take leave again.38 On September 28, the same representative called

Tedesco again and asked if she “was suicidal.”39 Tedesco responded in the negative

and reiterated that she did not want to go back on leave.40 Instead, Tedesco asked

that “she be placed in a different position with Pearson due to the hostility she was

experiencing in her current placement under [her direct supervisor,] Olden.”41 The

representative rejected Tedesco’s request and did not suggest any alternatives other

than that Tedesco take leave or vacation; instead, the representative “interrogat[ed]”

Tedesco about whether she “would self-harm.”42 Immediately after the phone call,

Tedesco requested vacation, as directed by the representative.43

On September 30, 2019, Tedesco and R.B. (Pearson’s managing director) spoke

via phone; R.B. told Tedesco that she “had R.B.’s full support to quit her job with

Pearson.”44 R.B. knew that Tedesco wished to continue working for Pearson,45 but

provided no option other than resignation.46 The next day, Tedesco took vacation “to

avoid being forced to take leave again.”47 The complaint does not state how long this

37 Id. at 12 ¶ 78.

38 Id. at 12 ¶ 81.

39 Id. at 12 ¶ 82.

40 Id.

41 Id. at 12 ¶ 83.

42 Id. at 12 ¶¶ 85–86.

43 Id. at 13 ¶ 87.

44 Id. at 13 ¶ 88.

45 Id.

46 Id. at 13 ¶ 89.

47 Id. at 13 ¶ 90.

vacation lasted, or whether it was in addition to the one requested on September 28.

However, on October 18, Tedesco “had no choice but to file a claim for Short-Term

Disability as she could no longer work without an accommodation.”48 Those disability

benefits began on November 4.49

On November 20, 2019, Tedesco emailed human resources “regarding the

status of her complaint against” Bronson; the representative responded that Tedesco

should not be working while on leave and, as Tedesco puts it, “suggest[ed] her mental

condition was questionable.”50

On January 18, 2020, a Pearson manager emailed Pearson employees to state

that Tedesco’s tenure as Evidence Field Champion ended on December 31, 2019, “a

year earlier than promised,” and named Ms. Tedesco’s replacement in that role.51

Tedesco was later approved, on May 5, 2020, for long-term disability leave through

April 27, 2022.52

Tedesco Files EEOC Charges & is Terminated

On April 23, 2020, Tedesco filed a charge of discrimination with the EEOC,

alleging that Pearson discriminated and retaliated against her based on genetic

information and disability.53 After an unsuccessful EEOC mediation, the case was

transferred to the EEOC’s investigative division.54 On July 23, Pearson’s H.R.

48 Id. at 13 ¶ 91.

49 Id. at 13 ¶ 92.

50 Id. at 13 ¶ 93.

51 Id. at 13 ¶ 95.

52 Id. at 14 ¶ 98.

53 Id. at 14 ¶ 96.

54 Id. at 14 ¶¶ 99–100.

representative emailed Tedesco “requesting additional medical information

regarding [her] ability to perform essential work functions and [her] return date.”55

On July 31, Tedesco’s psychologist responded with a letter, reporting that Tedesco

was disabled and that returning to work would negatively affect her recovery.56

On August 5, 2020, Pearson terminated Tedesco’s employment.57 The

termination letter explained that Pearson “has no choice but to terminate Ms.

Tedesco’s employment as it cannot hold her position open indefinitely.”58 On August

28, Tedesco filed a second charge of discrimination with the EEOC, alleging that

Tedesco’s termination constituted retaliation against Tedesco for her disclosing

genetic information, requesting accommodation, and filing the original EEOC

charge.59 The EEOC issued Tedesco notices of a right to sue on November 3, and she

timely filed this lawsuit within ninety days.60

Tedesco brings five claims: (1) “violations of rights” under the Genetic

Information Nondiscrimination Act (“GINA”);61 (2) “violations of rights” under the

Americans with Disabilities Act (“ADA”),62 which Pearson treats as both

discrimination and failure-to-accommodate claims;63 (3) unlawful retaliation under

55 Id. at 14 ¶ 101.

56 Id. at 15 ¶ 109.

57 Id. at 15 ¶ 110.

58 Id. at 15 ¶¶ 110–12.

59 Id. at 16–17 ¶ 118.

60 Id. at 17 ¶ 120.

61 Id. at 17–19 ¶¶ 121–32.

62 Id. at 19–21 ¶¶ 133–48.

63 R. Doc. No. 12-1, at 19 n.4.

the ADA;64 (4) comparable genetic-information-based and disability-based claims

under the Louisiana Employment Discrimination Law (“LEDL”);65 and (5) a state-

law claim for breach of the implied covenant of good faith and fair dealing.66

II.

Pursuant to Rule 12(b)(6), a district court may dismiss a complaint or part of

a complaint when a plaintiff fails to set forth well-pleaded factual allegations that

“raise a right to relief above the speculative level.” See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 570).

A claim is facially plausible “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the

court to infer more than the mere possibility of misconduct,” then “the complaint has

alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679

(quoting Fed. R. Civ. Proc. 8(a)(2)) (alteration in original).

In assessing the complaint, a court must accept all well-pleaded facts as true

and liberally construe all factual allegations in the light most favorable to the

plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Gentilello v.

64 R. Doc. No. 1, at 21–22 ¶¶ 149–54.

65 Id. at 22–23 ¶¶ 155–63.

66 Id. at 23–24 ¶¶ 164–68.

Rege, 627 F.3d 540, 543–44 (5th Cir. 2010). However, courts “do not accept as true

conclusory allegations, unwarranted factual inferences, or legal conclusions.” Plotkin

v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). Furthermore, “the Court must

typically limit itself to the contents of the pleadings, including attachments

thereto.” Admins. of the Tulane Educ. Fund v. Biomeasure, Inc., No. 08-5096, 2011

WL 4352299, at *3 (E.D. La. Sept. 16, 2011) (Vance, J.) (citing Collins v. Morgan

Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)). “Dismissal is appropriate

when the complaint ‘on its face show[s] a bar to relief.’” Cutrer v. McMillan, 308 F.

App’x 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970

(5th Cir. 1986) (alteration in original)).

III.

Before the Court analyzes the merits of Pearson’s motion, it pauses to clarify

what it is and is not considering. Attached to Pearson’s Rule 12(b)(6) motion and

referenced throughout it are a number of documents that, it says, are clearly

referenced in Tedesco’s complaint and central to her claims.67

Under Federal Rule of Civil Procedure 12(d), “[w]hen a party bases a motion to

dismiss on matters outside the pleadings, the court has discretion either to accept the

extraneous material and convert the motion to dismiss into a motion for summary

judgment, or to decide the motion, as defendant styled it, under the principles of Rule

12(b)(6).” Rubio v. Hyatt Corp., No. 17-7833, 2017 WL 5177943, at *2 (E.D. La. Nov.

8, 2017) (Barbier, J.) (quoting McDonald v. Kansas City S. Ry. Co., No. 16-15975,

67 R. Doc. No. 12-1, at 7.

2017 WL 1709353, at *2 (E.D. La. May 3, 2017) (Vance, J.)); see also 5C Wright &

Miller, Fed. Prac. & Proc. § 1366 (3d ed.) (“[F]ederal courts have complete discretion

to determine whether or not to accept the submission of any material beyond the

pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it,

thereby converting the motion, or to reject it or simply not consider.”).

Pearson argues that the Court may consider the exhibits attached to its motion

to dismiss without converting it to a summary-judgment motion “because they are

‘(1) attached to the motion; (2) referenced in the complaint; and (3) central to the

plaintiff’s claims.’”68 The first point is true, the second is generally true,69 but the

third is overstated. Even assuming every attached exhibit is sufficiently referenced

in the complaint, it is difficult to discern how all are categorically “central to

[Tedesco’s] claims”—as is required to be considered without converting Pearson’s

motion into a motion for summary judgment. Brand Coupon Network, L.L.C. v.

Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014); cf. SMH Enters., L.L.C. v.

Krispy Krunchy Foods, L.L.C., No. 20-2970, 2021 WL 1226411, at *6 n.35 (E.D. La.

Apr. 1, 2021) (Vance, J.) (finding terms and conditions document, which purported to

be part of the “agreement between the parties,” was central to the plaintiff’s breach

of contract claim).

68 R. Doc. No. 12-1, at 7 (quoting Maloney Gaming Mgmt., L.L.C. v. St. Tammany

Par., 456 F. App’x 336, 340–41 (5th Cir. 2011)).

69 Some of the exhibits are indirectly referenced in the complaint. See, e.g., R. Doc.

No. 1, at 13 ¶ 93 (“On November 20, 2019, Ms. Tedesco emailed Mr. Grunwald

regarding the status of her complaint against Ms. Bronson for violation of Pearson’s

code of conduct.”); R. Doc. No. 12-6 (the referenced email).

Moreover, Pearson makes no argument as to how each of these exhibits are so

central to Tedesco’s claims—other than by a single, blanket assertion.70 These

documents and the factual arguments they support are better considered in a timely

motion for summary judgment. See Express Lien, Inc. v. Handle, Inc., No. 19-10156,

2020 WL 1030847, at *10 (E.D. La. Mar. 3, 2020) (Vance, J.) (concluding the same

and noting the court’s “complete discretion to determine whether or not to accept any

material beyond the pleadings” when deciding a Rule 12(b)(6) motion (quoting Isquith

ex rel. Isquith v. Middle S. Utilities, Inc., 847 F.2d 186, 194 n.3 (5th Cir. 1988))).

Accordingly, for purposes of Rule 12(d), the Court notes that it will not consider

any of the exhibits attached to Pearson’s motion to dismiss; it will assume the truth

of all well-pleaded facts in Tedesco’s complaint.

IV.

A. Tedesco’s GINA Claims Must be Dismissed

The Genetic Information Nondiscrimination Act (“GINA”) prohibits employers

from taking adverse actions against an employee “because of genetic information with

respect to the employee.” 42 U.S.C. §§ 2000ff-1(a)(1), (2). GINA also makes it

unlawful, with some exceptions,71 for employers to “request, require, or purchase

70 See R. Doc. No. 12-1, at 7 (arguing that “the Court may consider them . . . because

they are . . . ‘central to the plaintiff’s claims’” (quoting Maloney Gaming Mgmt., 456

F. App’x at 340–41)).

71 Two exceptions potentially relevant here are (1) “where an employer inadvertently

requests or requires family medical history of the employee or family member of the

employee,” 42 U.S.C. § 2000ff-1(b)(1) (emphasis added), and (2) “where an employer

requests or requires family medical history from the employee to comply with the

certification provisions of” the Family and Medical Leave Act or its state-law

genetic information with respect to an employee or a family member of the employee.”

Id. § 2000ff-1(b). At issue here is whether GINA is even implicated by this case—

that is, whether Pearson obtained “genetic information” as GINA defines it.

“For purposes of GINA, ‘genetic information’ means information about the

‘genetic tests’ of an individual or her family members, and information about ‘the

manifestation of a disease or disorder in family members of such individual.’” Ortiz

v. City of San Antonio Fire Dep’t, 806 F.3d 822, 826 (5th Cir. 2015) (quoting 42 U.S.C.

§ 2000ff(4)(A)). But a mere diagnosis of a disease or disorder in a family member “is

not considered ‘genetic information’ if ‘such information is taken into account only

with respect to the individual in which such disease or disorder occurs and not as

genetic information with respect to any other individual.’” Poore v. Peterbilt of

Bristol, L.L.C., 852 F. Supp. 2d 727, 731 (W.D. Va. 2012) (quoting H.R. Rep. No. 110-

28, pt. 2, at 27 (2007), 2008 U.S.C.C.A.N. 101, 105–06). In other words, “evidence of

a family member’s disease diagnosis is only considered ‘genetic information’ if used

to determine the likelihood of disease in another individual.” Allen v. Verizon

Wireless, No. 12-482, 2013 WL 2467923, at *23 (D. Conn. June 6, 2013) (citing

Poore, 852 F. Supp. 2d at 731).

Tedesco argues that GINA “defines [‘genetic information’] more broadly than

the As, Ts, Cs, and Gs of a DNA test.”72 She asserts that “[s]uicide and suicidal

behavior are highly familial” and cites a study and a WebMD article that, she says,

equivalent, id. § 2000ff-1(b)(3). Since the Court concludes that Pearson never

obtained genetic information, it need not reach these exceptions.

72 R. Doc. No. 15, at 5.

“support the view that . . . the transmission of suicidal behavior is at least in part

genetic.”73 She concludes that “[i]nformation about the manifestation of mental

health issues and suicide in Tiffanie Tedesco’s family members is protected genetic

information under GINA.”74 Employing that definition, she alleges that the

“deliberate[] request[s]” from multiple Pearson employees about “the manifestation

of mental health issues and suicide in Ms. Tedesco’s family,” along with their sharing

of that information, without Tedesco’s prior written authorization, violated GINA.

See 42 U.S.C. § 2000ff-1(b)(2)(B).75 Similarly, Pearson “discriminated” against

Tedesco “by forcing her to take FMLA leave, which interfered with the terms or

privileges of her employment as a salesperson.”76

Pearson argues that its knowledge of the suicide alone—even alongside

knowledge that suicide may generally have a genetic basis—is not enough to

transform that knowledge into genetic information. Instead, “Pearson must also

possess knowledge that [Tedesco’s] father’s suicide was related to his genetic makeup,

and not, for example, prompted by outside stressors, neurological disease, or

environmental factors. [Tedesco] has made no allegations that she supplied any such

73 R. Doc. No. 1, at 17–18 ¶ 125. Pearson argues that the principal study cited by

Tedesco is more equivocal, quoting the study: “‘at best only 50% of the variance is

explained by genes,’ and manifestation of suicide is also caused by ‘neuroticism and

neurocognitive deficits,’ ‘environmental factors,’ and ‘interaction with a stressful

environment.’” R. Doc. No. 20, at 3 (quoting David A. Brent & Nadine Melhem, 31:2

Familial Transmission of Suicidal Behavior, Psych. Clinics of N. Am., at 157–77

(2008)).

74 R. Doc. No. 1, at 18 ¶ 126.

75 Id. at 18 ¶¶ 128–29.

76 Id. at 18–19 ¶¶ 130–32.

information to Pearson.”77 Pearson concludes that “it is neither Pearson’s nor this

Court’s responsibility to determine if Plaintiff’s father’s suicide was related to a

genetic condition or not. To state a claim, Plaintiff must simply allege that she

specifically told Pearson that her father’s suicidal tendency was specifically linked to

a genetic condition.”78 The Court agrees with Pearson for two reasons.

First, GINA’s definition of genetic information is not as broad as Tedesco

makes it out to be. Although it is true that GINA defines “genetic information” to

include family medical history, that was done to prevent employers from using such

information “as a surrogate for genetic traits.” Poore, 852 F. Supp. 2d at 730 (quoting

H.R. Rep. No. 110-28, pt. 1, at 36 (2007), 2008 U.S.C.C.A.N. 66, 80). It therefore

follows that, to state a claim under GINA, the plaintiff must allege at least that the

employer, when requesting family medical history, believed it was dealing with

genetic information. Holding otherwise could impose liability on employers merely

for inquiring about the health or safety of an employee’s family member, a scenario

to which the relevant regulations expressly counsel against applying GINA. See 29

C.F.R. § 1635.8(b)(1)(ii)(B) (providing that the “inadvertent acquisition of genetic

information” exception applies if the employer collected genetic information, inter

alia, “in response to an ordinary expression of concern” for the employee or a family

member and providing examples).79

77 R. Doc. No. 20, at 3.

78 Id. at 3–4.

79 These examples include:

For example, the exception applies when the covered entity, acting

through a supervisor or other official, receives family medical history

The Fifth Circuit has not determined when family medical history crosses the

line to become genetic information, and this Court has not found a single case

applying GINA to claims involving a family history of suicide. There have been

several cases, however, that have accepted the premise that genetic information

includes the manifestation of cancer in family members. See Punt v. Kelly Services,

862 F.3d 1040, 1052 (10th Cir. 2017) (accepting premise as to family history of breast

cancer, but concluding employer did not discriminate against employee “because of”

this genetic information); Jackson v. Regal Beloit America, Inc., No. 16-134, 2018 WL

3078760, at *15 (E.D. Ky. June 21, 2018) (concluding history of colon cancer was

genetic information). In those cases, unlike here, there was no question that the

employer knew the disease at issue had a genetic cause.

Here, however, Tedesco does not allege that Pearson knew her father’s suicide

was caused by a genetic condition—or even that Pearson knew that it could have been

so caused. Without such an allegation, Tedesco fails to state a claim that Pearson

collected what it believed to be genetic information—information that could predict

Tedesco’s mental condition. Based on the complaint’s allegations, Pearson was

directly from an individual following a general health inquiry (e.g., “How

are you?” or “Did they catch it early?” asked of an employee who was just

diagnosed with cancer) or a question as to whether the individual has a

manifested condition. Similarly, a casual question between colleagues,

or between a supervisor and subordinate, concerning the general well-

being of a parent or child would not violate GINA (e.g., “How’s your son

feeling today?”, “Did they catch it early?” asked of an employee whose

family member was just diagnosed with cancer, or “Will your daughter

be OK?”).

29 C.F.R. § 1635.8(b)(1)(ii)(B).

asking only about an employee’s tragic loss of a family member. It would be one thing

if the only cause of suicide is genetic; then, perhaps, Pearson may be held liable for

requesting information about it—since it is information concerning a solely genetic

disorder. But Tedesco does not even allege that, instead claiming only that

“transmission of suicidal behavior is at least in part genetic.”80 That is insufficient

under GINA, absent allegations that Pearson knew otherwise.

Second, Tedesco “ignores the statutory distinction between ‘medical

information’ and ‘genetic information.’” Ortiz, 806 F.3d at 826. GINA specifically

exempts “the use, acquisition, or disclosure of medical information that is not genetic

information about a manifested disease, disorder, or pathological condition of an

employee or member, including a manifested disease, disorder, or pathological

condition that has or may have a genetic basis.” 42 U.S.C. § 2000ff-9 (emphasis

added). “A disease, disorder, or pathological condition is considered ‘manifested’ if

the individual ‘has been or could reasonably be diagnosed with the disease, disorder,

or pathological condition by a healthcare professional[.]’ A disease, disorder, or

pathological condition is not considered manifested ‘if the diagnosis is based

principally on genetic information.’” Equal Emp. Opportunity Comm’n v. Grisham

Farm Prod., Inc., 191 F. Supp. 3d 994, 997–98 (W.D. Mo. 2016) (quoting 29 C.F.R. §

1635.3(g)). Accordingly, if the information relates to a condition that has manifested

in the employee, the information is medical, not genetic—notwithstanding whether

the condition has a genetic basis.

80 R. Doc. No. 1, at 17–18 ¶ 125 (emphasis added).

Here, the complaint states that Tedesco began medical treatment in “January

of 2019” following her father’s suicide, which occurred on December 31, 2018. She

was “ultimately” diagnosed with a variety of psychological disorders. Accordingly, to

the extent her father’s suicide was caused by a genetic mental disorder, as Tedesco

alleges, that condition had already manifested in Tedesco—sometime in or shortly

after January 2019—taking it out of the scope of the “genetic information” definition

and into the “medical information” exclusion.

For these two reasons, the Court dismisses Tedesco’s GINA claims, as ordered

below.

B. Tedesco’s ADA-Based Discrimination, Failure-to-Accommodate,

and Retaliation Claims Survive

A plaintiff alleging disability discrimination need not produce evidence of a

prima facie case to survive a Rule 12(b)(6) motion to dismiss. Stone v. La. Dept. of

Revenue, 590 F. App’x 332, 339 (5th Cir. 2014). But she must still “plead sufficient

facts on all of the ultimate elements . . . to make her case plausible.” Chhim v. Univ.

of Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016). “[I]t can be helpful to reference

the McDonnell Douglas framework” to answer that question—even in cases arising

under the ADA. Id.; E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th

Cir. 2009) (applying McDonnell Douglas to a disability discrimination claim). And

when the plaintiff has only circumstantial evidence of discrimination, McDonnell

Douglas governs the ultimate analysis. See Clark v. Champion Nat’l Sec., Inc., 952

F.3d 570, 582 (5th Cir. 2020) (explaining that a plaintiff “may either present direct

evidence that [he] was discriminated against . . . or alternatively proceed under”

McDonnell Douglas), cert. denied sub nom. Clark v. Inco Champion Nat’l Sec., Inc.,

141 S. Ct. 662.

“To establish a prima facie discrimination claim under the ADA, a plaintiff

must prove: (1) that he has a disability; (2) that he was qualified for the job; and (3)

that he was subject to an adverse employment decision on account of his disability.”

Clark, 952 F.3d at 582 (quoting Moss v. Harris Cty. Constable Precinct One, 851 F.3d

413, 417 (5th Cir. 2017)). As for a failure-to-accommodate claim, the plaintiff must

allege and ultimately prove that “(1) the plaintiff is a ‘qualified individual with a

disability;’ (2) the disability and its consequential limitations were ‘known’ by the

covered employer; and (3) the employer failed to make ‘reasonable accommodations’

for such known limitations.” Feist v. Louisiana, 730 F.3d 450, 452 (5th Cir. 2013)

(quoting Mzyk v. N.E. Indep. Sch. Dist., 397 F. App’x 13, 16 (5th Cir. 2010)).

And as for a prima facie retaliation claim, a plaintiff must allege and

ultimately prove that “(1) he engaged in a protected activity; (2) he suffered an

adverse employment action; and (3) there is a causal link between the first two

elements.” Jenkins v. Cleco Power, LLC, 487 F.3d 309, 317 n.3 (5th Cir. 2007)

(citing Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 n.8 (5th Cir. 1998)).

Pearson appears to assume that Tedesco has sufficiently alleged the first two

elements.81 The Court will do the same.82

81 See R. Doc. No. 12-1, at 22–23 (citing the three-part retaliation test and arguing

only that causation was not sufficiently alleged).

82 These appear to be safe assumptions: the Fifth Circuit has noted that “[e]very

appeals court to consider this issue has concluded that [a request for accommodation]

is protected as long as the employee had the reasonable belief that he was covered by

Tedesco’s complaint alleges three claims under the ADA: discrimination,

failure-to-accommodate, and retaliation.83 Pearson makes four arguments for

dismissal: (1) Tedesco could not perform the essential functions of her job and

therefore was not a “qualified individual” for ADA purposes, which defeats her

disability-discrimination and failure-to-accommodate claims; (2) she did not engage

in the “interactive process,” so her failure-to-accommodate claim must fail; (3) her

termination was based on her indefinite multi-year leave, which Pearson was not

required to accommodate; and (4) even if Tedesco could establish a prima facie case

of discrimination or retaliation, Pearson terminated her employment because of non-

discriminatory reasons—her multi-year leave—so her retaliation claim must fail.84

The Court rejects all four arguments.

1. Tedesco was a Qualified Individual

As to the first argument: to claim the ADA’s protection, Tedesco must allege

facts showing that she was a “qualified individual”—“an individual who, with or

without reasonable accommodation, can perform the essential functions of the

employment position.” 42 U.S.C. § 12111(8). “Fact-finders must determine whether

a function is ‘essential’ on a case-by-case basis.” Credeur v. La. ex rel. Office of

the ADA.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 620 n.9 (5th

Cir. 2009). Termination, likewise, is an adverse employment action. Grubic v. City

of Waco, 262 F. App’x 665, 667 (5th Cir. 2008).

83 Tedesco’s second cause of action alleges “violation of rights” under the ADA, which

Pearson treats as “potential claims for both discrimination and failure-to-

accommodate.” R. Doc. No. 12-1, at 19 n.4 (quoting R. Doc. No. 1, at 19 ¶¶ 133–48)

(internal quotation marks omitted). The Court treats them the same.

84 R. Doc. No. 12-1, at 19–24.

Attorney General, 860 F.3d 785, 792 (5th Cir. 2017) (quoting E.E.O.C. v. LHC Grp.,

Inc., 773 F.3d 688, 698 (5th Cir. 2014)) (internal quotations omitted).

To argue that Tedesco was not a qualified individual, Pearson relies solely on

the FMLA and disability leave that Tedesco took prior to her termination. It argues

that “[a]ttendance at work, the most basic element of an employee’s duties, is an

essential element of all jobs,”85 and “[i]ndefinite leave is not a reasonable

accommodation.”86 It points to the fact that Tedesco has been on long term disability

leave since October 201987—implying that she insisted on never returning to work.

But that argument ignores Tedesco’s core factual allegation: that she was able,

and wanted, to work for Pearson—but in a different line of reporting.88 Tedesco has

very clearly alleged that “[t]he accommodations she requested were (1) to not be

forced to take leave; and (2) to be placed in a [different] line of reporting.”89 She

alleged that it was Pearson officials who “suggested” that she go on leave90—Tedesco

“request[ed] that she not be forced to take leave.”91 Pearson insisted on such leave

85 R. Doc. No. 12-1, at 21 (citing Hypes v. First Commerce Corp., 134 F.3d 721, 727

(5th Cir. 1998)).

86 Id. (quoting Amsel v. Tex. Water Dev. Bd., 464 F. App’x 395, 400 (5th Cir. 2012))

(internal quotations omitted).

87 Id.

88 Pearson does not argue that such an accommodation would have amounted to an

undue hardship. See 42 U.S.C. §§ 12111(10)(A)–(B) (defining undue hardship); id. §

12112(b)(5)(A) (providing that an accommodation need not be provided where the

employer “can demonstrate that the accommodation would impose an undue

hardship on the operation of the business”).

89 R. Doc. No. 1, at 11 ¶ 77; see also id. at 12 ¶ 83 (requesting a different position).

90 Id. at 8 ¶ 50 (“Ms. Morel suggested Ms. Tedesco take FMLA leave.”).

91 See id. at 12 ¶ 79 (emphasis added); id. at 12 ¶ 81 (“But Ms. Tedesco did not want

to take leave.”).

even after Tedesco requested the accommodation, a request that Pearson

acknowledged but did not act upon.92 Pearson may be correct that attendance at

work is an essential element of all jobs, but Tedesco never asked to be exempt from

attendance; she asked to be accommodated through placement in a separate line of

reporting.

Further, although Pearson is correct that “‘[i]indefinite leave is not a

reasonable accommodation,’ [Tedesco’s] complaint does not allege that she requested

additional leave from work without an end date.” Oncale v. CASA of Terrebonne

Parish, Inc., No. 19-14760, 2020 WL 3469838, at *8 (E.D. La. June 25, 2020) (Africk,

J.) (quoting Amsel, 464 F. App’x at 400). As just explained, Tedesco requested to be

accommodated through placement in a separate line of reporting. And the complaint

alleges a more definite return date than Pearson suggests: Tedesco was approved for

long-term disability leave only through April 27, 2022.93 Further, Tedesco alleges it

was against Pearson policy to terminate employees who are on long-term disability,94

which suggests Pearson treated Tedesco differently than other employees on

92 Id. at 12 ¶ 78 (“Mr. Grunwald[] told Ms. Tedesco that he spoke with R.B. regarding

Ms. Tedesco’s requested accommodations and options, and that R.B. thought Ms.

Tedesco should go back on leave.” (emphasis added)); id. at 12 ¶¶ 83–84 (“Ms. Tedesco

requested a reasonable accommodation, namely that she be placed in a different

position with Pearson due to the hostility she was experiencing in her current

placement under Ty Olden. . . . Ms. Rippolone rejected Ms. Tedesco’s request and did

not suggest any alternatives.”); id. at 14 ¶ 104 (“Ms. Tedesco responded to Pearson

management explaining how her requests for accommodation from September

through November 2019 were ignored and there was no ‘interactive process.’”).

93 Id. at 14 ¶ 98. To the extent the letter sent by Tedesco’s psychologist, see R. Doc.

No. 12-1, at 21 (discussing the letter), suggests a less definite end-date, it is not

conclusive proof of such.

94 R. Doc. No. 1, at 16 ¶ 113.

disability leave. While Pearson criticizes Tedesco for not “presenting that policy or

its contents,”95 it is not her burden to do so to avoid dismissal. Tellingly, Pearson

stops short of claiming that it does not have such a policy.96

All told, Tedesco has plausibly alleged that she was a qualified individual.

2. Interactive Process

Next, Pearson insists—contrary to Tedesco’s well-pleaded facts—that she

“refused to engage in the interactive process.”97 The “interactive process” is ADA

jargon for the procedure that identifies workable accommodations for disabled

employees. It obligates employers, once an employee requests and suggests an

accommodation for a disability, to engage in “‘a meaningful dialogue with the

employee to find the best means of accommodating that disability.’ The process thus

requires ‘communication and good-faith exploration.’” Chevron Phillips, 570 F.3d at

621 (quoting Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005), and

Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 871 (6th Cir. 2007)) (cleaned up).

Based on Tedesco’s well-pleaded facts, it was Pearson that refused to engage

in the interactive process. Tedesco’s requests for accommodation were made between

September and November 2019.98 Instead of coordinating with Tedesco to develop a

95 R. Doc. No. 20, at 5.

96 See id. This is telling because, as noted, Pearson attached several documents to

rebut some of Tedesco’s other allegations—or at least noted when such documentary

evidence does not exist. See R. Doc. No. 12-1, at 25–26 (“Pearson cannot attach the

referenced employment contract because none exists, as Plaintiff was an at-will

employee.”). Pearson fails to note here that the referenced policy does not exist.

97 R. Doc. No. 12-1, at 22.

98 R. Doc. No. 1, at ¶ 104.

mutually agreeable accommodation, Pearson responded by telling her to take leave,

use her vacation time, or quit.99 By April 23, 2020, Tedesco’s requests remained

unanswered, and she retained counsel.100 Pearson did not attempt to engage Tedesco

in its “interactive process” until July 23, 2020.101

Pearson does not challenge any part of that timeline. Its only argument is that

Tedesco failed to engage in the interactive process following the July 2020 email,102

which Pearson (implicitly) argues is enough to have absolved it of any obligation to

respond to Tedesco’s earlier requests. The Court is not so convinced—the interactive

process is a two-way street. See, e.g., Chevron Phillips, 570 F.3d at 621 (“When an

employer does not engage in a good faith interactive process, that employer violates

the ADA—including when the employer discharges the employee instead of

considering the requested accommodations.”).

Although it may be possible that Tedesco’s conduct and manner of requesting

accommodations contributed to a breakdown in the interactive process, that is a

factual question unfit for resolution on a motion to dismiss. See Stokes v. Nielsen,

751 F. App’x 451, 455 (5th Cir. 2018) (vacating grant of summary judgment for the

employer because a factual dispute existed as to whether the employee caused the

breakdown). Instead, accepting as true the facts in Tedesco’s complaint, she

99 Id. at 12–13 ¶¶ 86–88.

100 Id. at 14 ¶ 96.

101 Id. at 14 ¶ 102.

102 R. Doc. No. 12-1, at 22.

sufficiently engaged in the interactive process. Accordingly, this is not a basis for

dismissing Tedesco’s ADA claims either.

3. Tedesco’s Retaliation Claim Survives

Pearson makes two arguments as to Tedesco’s ADA retaliation claim. First,

Pearson argues that Tedesco insufficiently alleged that her engaging in protected

activity caused the adverse employment action (her termination), because the

temporal proximity between the two events was not sufficiently close.103 It argues

that, “[w]hile a four-month gap may be sufficient evidence of causation, a five-month

gap is too long absent other evidence.”104 And it points to the gaps in time between

Tedesco’s various leaves of absence and her termination on August 5, 2020: 16 months

from her first FMLA leave (April 7, 2019), and 10 months from her second (October

18, 2019).105

Tedesco responds that the adverse employment action was not only her final

termination in August 2020, but also Pearson’s termination of “her tenure as

Evidence Field Champion, a year earlier than agreed upon,”106 on January 18,

2020.107 That narrows the gap to just a couple months—from October 2019, when

Tedesco first took disability leave, to January 2020, when she lost her title.

Pearson does not address this point in its reply—either as to whether this

qualified as an adverse employment action or whether its temporal proximity to her

103 Id. at 22–23.

104 Id. at 23 (Aguillard v. La. College, 824 F. App’x 248, 251 (5th Cir. 2020)).

105 Id.

106 R. Doc. No. 15, at 10 (citing R. Doc. No. 1, at 13 ¶ 95) (emphasis in original).

107 Id.

taking leave is close enough to suggest causation. For purposes of retaliation claims,

a materially adverse employment action is one that “might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Cabral v.

Brennan, 853 F.3d 763, 767 (5th Cir. 2017) (quoting Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 68 (2006)).108

Given the prestige of the Evidence Field Champion title—and, more

importantly, the $5,000 bonus and advancement opportunities that it came with109—

its being taken away from Tedesco plausibly could have dissuaded her from filing a

charge of discrimination. Pearson’s rescinding the title may therefore qualify as an

adverse employment action. Cf. Pegram v. Honeywell, Inc., 361 F.3d 272, 283–84 (5th

Cir. 2004) (holding that “the mere loss of subjective prestige” that came with a job

transfer, without more, failed to qualify as an adverse employment action, but that

where the new position had a “lower earning potential,” a jury could find that the

transfer was an adverse employment action). In short, the loss of such a title with

such opportunities may not be a mere “non-actionable ‘trivial’ harm.” Davis v. Ft.

Bend Cty., 765 F.3d 480, 490–91 (5th Cir. 2014) (quoting Burlington, 548 U.S. at 69).

108 The Fifth Circuit also includes “demoti[ons]” among adverse employment actions.

McElroy v. PHM Corp., 622 F. App’x 388, 390 (5th Cir. 2015) (quoting Thompson v.

City of Waco, 764 F.3d 500, 503 (5th Cir. 2014)).

109 R. Doc. No. 1, at 10 ¶ 66 (“Evidence Field Champion is a Pearson Peer Leadership

Role is a [sic] prestigious and highly competitive title reserved for high-achieving

sales representatives, whom Pearson is training for leadership roles within the

company. Pearson provides Evidence Field Champions with leadership training and

those selected are considered on the path for promotion to upper-management

roles.”). Pearson itself recognizes that the program is “an award that honors top-

performing salespersons with [a $5,000] bonus . . . and training.” R. Doc. No. 20, at

9.

And that action plausibly was caused by Tedesco’s requests for accommodation,

which occurred a couple months before the action. As Pearson acknowledges, “a four-

month gap may be sufficient evidence of causation.” Aguillard, 824 F. App’x at 251.

Accordingly, Tedesco has plausibly alleged that her being removed as Evidence Field

Champion constituted retaliation under the ADA.110

Second, Pearson argues that, even if Tedesco can state a prima facie retaliation

claim, Pearson had “legitimate, non-discriminatory reasons for its decision to

terminate her employment”—namely, that Tedesco was on “indefinite leave.”111 But

to claim that Tedesco’s leave was indefinite contradicts her well-pleaded factual

allegations that (1) her long-term disability leave was approved through only April

2022,112 which is not indefinite, and (2) her treating physician reported, in July 2020,

only that Tedesco was “disabled at that time.”113 And even if her leave was indefinite,

this argument—that Pearson had non-discriminatory reasons for terminating

Tedesco—goes to the McDonnell Douglas burden-shifting framework more properly

analyzed on summary judgment. See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 317

(5th Cir. 2007) (“First [the plaintiff] must establish a prima facie case. Next, [the

110 Moreover, even if Tedesco’s final termination (rather than her loss of the Evidence

Field Champion title) is the only relevant adverse employment action, Tedesco has

plausibly alleged two independent protected activities for which her termination may

have been retaliatory—both of which were closer temporally to her termination than

were her requests for accommodation: (1) her taking long-term disability leave, which

was approved on May 5, 2020 (three months before her termination), and (2) her

EEOC charge of disability discrimination, which was filed on April 23, 2020. R. Doc.

No. 1, at 14 ¶¶ 96, 98.

111 R. Doc. No. 12-1, at 23–24.

112 R. Doc. No. 1, at 14 ¶ 98.

113 Id. at 15 ¶ 109 (emphasis added).

defendant] must put forth a legitimate, nondiscriminatory reason for the employment

action. Finally, [the plaintiff] must prove that the proffered reason is pretextual.”)

(internal citations omitted).

Accordingly, the Court will not dismiss Tedesco’s ADA retaliation claim.

C. Tedesco’s LEDL Claims are Analyzed Identically to her Federal

Claims

Tedesco also brings state-law claims under the LEDL that are parallel to her

ADA claims. See La. Rev. Stat. §§ 23:323(B)(1)–(2) (proscribing disability

discrimination and failure-to-accommodate). Both Pearson114 and Tedesco115 agree

that Louisiana courts apply the same legal analysis under the ADA to analogous

provisions in the LEDL. See Credeur v. Louisiana, 860 F.3d 785, 791 n.3 (5th Cir.

2017); Sutherland v. Edison Chouest Offshore, Inc., No. 19-414, 2020 WL 5436654, at

*1 (E.D. La. Sept. 10, 2020) (Vance, J.) (“[T]he Court’s analyses under the LEDL and

the ADA are the same.”). Accordingly, Tedesco’s LEDL claims that are parallel to her

ADA claims are not dismissed.

The same goes for Tedesco’s LEDL claims that are parallel to her GINA claims.

See La. Rev. Stat. §§ 23:368(B)(1) & (B)(3) (proscribing genetic information

discrimination). Although the parties have not cited, and the Court has not found,

any case holding as much, both Tedesco116 and Pearson117 agree that genetic-

114 R. Doc. No. 12-1, at 24 n.5.

115 R. Doc. No. 15, at 11.

116 Id. at 7 (“For the same reasons as above, Defendant also violated” the LEDL’s

provisions governing genetic information.).

117 R. Doc. No. 20, at 8 (“Plaintiff’s LEDL claims fail on the same grounds as her GINA

and ADA claims.”).

information-based claims under the LEDL are analyzed identically to GINA claims.

The Court therefore dismisses Tedesco’s genetic-information-based LEDL claims for

the same reasons it dismisses her GINA claims.

D. Tedesco’s Claim for Breach of the Implied Covenant of Good

Faith and Fair Dealing Fails

Tedesco’s final cause of action alleges that “Pearson failed to engage in good

faith and fair dealing in regard to Ms. Tedesco’s employment contract by forcing her

to take leave and stop working, and then terminating her while she was [sic]

disability leave.”118 Pearson argues this claim must be dismissed because Tedesco

“cannot show that anything other than Louisiana’s default at-will status applied to

her employment with Pearson,”119 and “[t]he nature of at-will employment is such

that the employer or the employee may end the employment relationship at any time

for any reason not contrary to the law.”120

Tedesco accepts that she was an at-will employee,121 but she argues that even

such “contracts must be performed in good faith.”122 And she acknowledges that this

duty is violated when an employment contract is breached “with a dishonest or

118 R. Doc. No. 1, at 23 ¶ 166.

119 R. Doc. No. 20, at 9.

120 Id. at 10 (citing Clark v. Acco Sys., Inc., 899 So. 2d 783, 786 (La. Ct. App. 2d 2005)).

121 R. Doc. No. 15, at 12 (“Absent a specific contract or agreement establishing a fixed

term of employment, an ‘at-will’ employee is free to quit at any time without liability

to his or her employer and, likewise, may be terminated by the employer at any time,

provided the termination does not violate any statutory or constitutional provision.”

(citing Clark, 899 So. 2d at 783)).

122 Id. (citing La. Civ. C. art. 1983).

morally questionable motive.”123 Alternatively, Tedesco appears to argue that her

being named as Pearson’s “Evidence Field Champion,” and the early termination of

that title, constituted a separate contract and separate breach.124 To that, Pearson

rejoins, “[a]t most, the program is an award that honors top-performing salespersons

with bonus compensation and training”125—a description that comports with

Tedesco’s own account in the complaint.126 Because the program is merely an award,

Pearson argues, “[i]t is not a contract that alters the participating employee’s at-will

status.”127 And although that at-will status “may be altered by contract,” it is not

altered by an employer’s “internal policies, procedures, and manuals,” as was the case

here.128

Pearson is correct, for two reasons. First, Tedesco’s at-will employment

status—again, a premise that Tedesco does not challenge—meant that she could be

fired by Pearson without cause. “If the employment contract is an at-will agreement,

an employee’s termination need not be accurate, fair, or reasonable, and there does

not have to be any reason at all for termination.” Filson v. Tulane Univ., No. 09-7451,

123 Id. (quoting Barbe v. A.A. Harmon & Co., 705 So. 2d 1210, 1220 (La. Ct. App. 4th

Cir. 1998)).

124 Id. at 13.

125 R. Doc. No. 20, at 9.

126 R. Doc. No. 1, at 10 ¶ 66 (“Evidence Field Champion is a Pearson Peer Leadership

Role is a [sic] prestigious and highly competitive title reserved for high-achieving

sales representatives, whom Pearson is training for leadership roles within the

company. Pearson provides Evidence Field Champions with leadership training and

those selected are considered on the path for promotion to upper-management

roles.”).

127 R. Doc. No. 20, at 9–10.

128 Id. at 10 (quoting Mix v. Univ. of New Orleans, 609 So. 2d 958, 963 (La. Ct. App.

4th Cir. 1992)) (internal quotations omitted).

2010 WL 5477189, at *3 (E.D. La. Dec. 29, 2010) (Engelhardt, J.) (citing Clark, 899

So. 2d 783). And “[t]he duty to perform the at-will compensation agreement in good

faith cannot be used to significantly alter the contract by requiring more than the

terms of the agreement.” Nicholas v. Allstate Ins. Co., 739 So. 2d 830, 837 (La. Ct.

App. 2d Cir. 1999), rev’d on other grounds, 765 So. 2d 1017 (La. 2000) (citing Frichter

v. National Life & Accident Ins. Co., 620 F. Supp. 922 (E.D. La. 1985) (Collins,

J.), summarily affirmed, 790 F.2d 891 (5th Cir. 1986)). Accordingly, Pearson could

fire Tedesco for any reason, good or bad, and not breach the at-will employment

contract.

Moreover, “[a] breach of the duty of good faith and fair dealing requires a

breach of contract.” Schaumburg v. State Farm Mut. Auto. Ins., 421 F. App’x 434,

439 (5th Cir. 2011); see also id. (“Bad faith is not the mere breach of faith in not

complying with a contract, but a designed breach of it from some motive of interest or

ill will.” (quoting Fertel v. Brooks, 832 So. 2d 297, 306 n.12 (La. Ct. App. 4th Cir. 2002)

(emphasis added, internal quotations omitted))). Absent a breach of contract, there

is no independent claim for acting in bad faith. Accordingly, where an employment

contract allows for at-will termination, and termination for no (or even an

impermissible) cause does not constitute breach, there is no claim for breach of the

implied covenant of good faith. Id. at 438–39 (finding no breach of an at-will agency

agreement, which precluded a claim for breach of good faith).

Because Tedesco accepts that this was an at-will employment agreement, she

cannot state a claim for breach of that agreement—it may be terminated for any cause

without rendering such termination a breach. And since there can be no contractual

breach, she cannot state a claim for breach of the implied covenant of good faith.129

Second, Tedesco’s being named as “Evidence Field Champion” does not change

the analysis. “Louisiana recognizes a presumption favoring at will employment.”

Stanton v. Tulane Univ. of La., 777 So. 2d 1242, 1250 (La. Ct. App. 4th Cir. 2001).

And Louisiana courts have consistently held that “employee manuals as well as

company policies and procedures do not confer contractual rights upon employees nor

create any exceptions to the ‘employment at will’ doctrine.” Id.; see also id. at 1250–

51 (citing, inter alia, Mix, 609 So. 2d at 963, and holding that an employee handbook

did not constitute an independent employment contract); Aldahir v. Mobil

Exploration & Producing Southeast, Inc., 420 So. 2d 714, 715 (La. Ct. App. 4th Cir.

1982) (concluding that a job performance notice sent to the employee from the

employer, which delineated certain goals that were to be achieved by a fixed date, did

not constitute a promise of employment through that date).

Tedesco alleges only that the Evidence Field Champion role “was renewed for

another 18 months beginning in August 2019 and ending January 2021,” was

reserved for “high-achieving sales representatives,” and entitled her to a stipend and

additional professional development opportunities.130 Crucially, she does not allege

that such Champions were entitled to additional protections against termination—

129 Even if Tedesco could state a breach of contract claim, she fails to sufficiently

allege the facts from which it could be reasonably inferred that Pearson acted with

the requisite “dishonest or morally questionable motive.” See Barbe, 705 So. 2d at

1220.

130 R. Doc. No. 1, at 10 ¶¶ 64–66.

e.g., that they may be terminated only for cause or that their employment is

guaranteed for a fixed term. Accordingly, she has failed to plead sufficient facts to

rebut Louisiana’s presumption favoring at-will employment. At most, the role is a

highly competitive title that comes with a fast-track to upper-management. That

does not render it a contract. It is more akin to a company’s internal policies

governing and incentivizing advancement, which, for the reasons stated above, does

not constitute an independent employment contract. See Aldahir, 420 So. 2d at 715.

Absent an independent employment contract, the at-will standard described above

applies and precludes her claim.

Nor does Tedesco, assuming arguendo that Pearson violated the ADA, have an

independent claim for breach of the implied covenant of good faith and fair dealing by

virtue of the ADA violation. See, e.g., Brouillette v. Transamerican Ref. Corp., No. 95-

0584, 1995 WL 683869, at *5 (E.D. La. Nov. 11, 1995) (McNamara, J.) (“Terminating

an employee in violation of a statute . . . does not give rise to a breach of contract

claim or a breach of implied covenant of good faith and fair dealing in the employment

at-will context; rather, termination in violation of a statute is actionable only under

the dictates of the statute.”); Pate v. Pontchartrain Partners, LLC, No. 13-6366, 2014

WL 5810521, at *3 (E.D. La. Nov. 7, 2014) (Wilkinson, M.J.) (dismissing breach of

good faith and fair dealing claim but not dismissing Title VII pregnancy

discrimination claim); Ivory v. M.L. Smith, Jr. L.L.C., No. 15-2022, 2015 WL 9074730,

at *4 (W.D. La. Oct. 14, 2015) (“[W]hile those allegations [of racial animus and ill will]

support [the plaintiff’s] claims for relief under state and federal discrimination laws,

he does not allege a viable claim for breach of any contractual obligation.”), report and

recommendation adopted, 2015 WL 9009050 (Dec. 15, 2015).131 Consequently, this

claim must be dismissed.

V.

Accordingly,

IT IS ORDERED that Pearson’s motion to dismiss is GRANTED IN PART

and DENIED IN PART. The motion is GRANTED insofar as the claims raised in

Tedesco’s first and fifth causes of action—her claims under GINA and her claim for

breach of the implied covenant of good faith and fair dealing—are DISMISSED

WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the motion is GRANTED insofar as

Tedesco’s fourth cause of action is DISMISSED WITHOUT PREJUDICE IN

PART. It is dismissed as to the state-law, genetic-information-based claims raised

therein, for the same reasons that her first cause of action was dismissed. The fourth

cause of action is not dismissed in all remaining respects.

131 To be sure, the Louisiana Supreme Court has stated that an employer’s right to

terminate an at-will employee without reason is “tempered by numerous federal and

state laws which proscribe certain reasons for dismissal of an at-will employee.”

Quebedeaux v. Dow Chem. Co., 820 So. 2d 542, 545–46 (La. 2002). This Court does

not read that, however, to provide a separate cause of action for breach of contract or

the duty of good faith and fair dealing whenever a statutory violation occurs. See

Sanchez v. Georgia Gulf Corp., 869 So. 2d 277, 282–83 (La. Ct. App. 1st Cir. 2003)

(concluding that Louisiana’s drug-testing statute, which provides certain rules and

procedures to follow when conducting drug tests in the workplace, “does not provide

for an exception to the employment at-will doctrine”).

IT IS FURTHER ORDERED that the motion is DENIED as it relates to

Tedesco’s second, third, and (in part) fourth causes of action; her ADA disability-

discrimination and retaliation claims, as well as any parallel state-law claims, are

not dismissed.

New Orleans, Louisiana, June 4, 2021.

LANCE M. AFRICK

UNITED SIrATES DISTRICT JUDGE

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