Turner v. Board of Supervisors of the University of Louisiana System

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KERI TURNER CIVIL ACTION

v. NO. 21-664

BOARD OF SUPERVISORS OF THE SECTION "F"

UNIVERSITY OF LOUISIANA SYSTEM, ET AL.

ORDER AND REASONS

Before the Court is Keri Turner’s motion to strike the

defendants’ first and second affirmative defenses invoking

qualified immunity and sovereign immunity. For the reasons that

follow, the motion is DENIED as moot.

Background

This litigation arises from a former tenured associate

professor’s claims that Nicholls State University Vice President

and the Board of Supervisors of the University of Louisiana System

forced her to retire and failed to accommodate her disability in

retaliation for taking leave and filing a complaint for disability

discrimination.

For 20 years, Dr. Turner was a tenured Associate Professor of

English Languages and Literature and a grant writer for Nicholls

1

State University in Thibodaux, Louisiana.1 In 2010, she was

diagnosed with Irritable Bowel Syndrome, which interfered with her

ability to concentrate, leave her house, and be in public places.2

Early in the Fall semester of 2017, Dr. Turner’s IBS symptoms

increased in frequency, but she was nevertheless able to fulfill

her instructional and administrative tasks in a satisfactory

manner. By Spring 2018, her symptoms progressed, and Dr. Turner

to sick leave. Her occasional absence from the classroom and from

her administrative duties placed additional responsibilities on

Dr. Ellen Barker, the Chair of the English Department. Dr. Barker

denied Dr. Turner’s request to teach remotely and removed Dr.

Turner from her on-campus courses. Nicholls State Vice President

and Direct of Human Resources, Steven H. Kenny, Jr., then informed

Dr. Turner that she would lose her job if she did not take FMLA

leave.

In August 2018, Dr. Barker recommended that Dr. Turner be

terminated, in part because of her inability to attend and conduct

in-person classes. The true reason Dr. Barker wished to terminate

Dr. Turner, it is alleged, was because Dr. Turner’s occasional

1 The Court takes as true the allegations of the amended complaint

for the purposes of the pending motion.

2 IBS symptoms include, among others, sudden onset of diarrhea,

unexplained and unexpected vomiting, difficulty swallowing, and

anemia.

2

absences from the classroom and her request to teach online classes

created administrative burdens for Dr. Barker. Dr. Turner appealed

to the University Tenure Revocation Committee, and a hearing was

held in February 2019. The Committee voted 4-2 to reject Dr.

Barker’s dismissal recommendation and the Committee recommended

that Dr. Turner teach only online courses.

The next month, with the requisite ADA paperwork from her

treating physician in hand, Dr. Turner requested accommodation for

her IBS disability to Mr. Kenny; specifically, her doctor supported

her request to teach only online courses for Fall 2019 and Spring

2020. Mr. Kenny denied Dr. Turner’s request. Allowing her to

teach from home would work an “undue hardship” on the University,

he said in May 2019. Mr. Kenny also refused to permit Dr. Turner

to take intermittent leave under the FMLA; instead, he required

that each medical absence must be separately excused and separately

accompanied by an excuse signed by a healthcare professional. Mr.

Kenny offered that assigned classrooms would be located in close

proximity to a restroom.

On June 21, 2019, Dr. Turner filed an EEOC complaint against

Nicholls State, charging disability discrimination. Meanwhile,

Dr. Turner returned to the classroom to teach the Fall 2019

semester, but she increasingly suffered IBS flareups, causing her

3

to take sick leave. On September 14, 2019, Dr. Turner’s EEOC

Charge was sent to Nicholls State University for their response.

Two weeks later, Dr. Turner was in class preparing to take roll

when she was called into the hallway by an assistant dean. The

assistant dean ordered her to leave the classroom immediately and

dismissed Dr. Turner’s class. Dr. Turner was ordered to meet with

the University President that morning at 9:00 a.m., at which time

President Jay Clune forbade Dr. Turner from teaching and reassigned

her to 25 hours of tutoring in the writing center and 15 hours or

research in her office. Clune demanded that Dr. Turner either

resign or be terminated on the spot. Dr. Turner opted to resign;

she wrote the resignation letter, informing the University of her

intention to retire at the end of the 2019-20 academic year. The

University acknowledged the letter and acknowledged her right to

rescind her retirement at any time.

Dr. Turner alleges that the meeting and ultimatum was

retaliatory. She alleges that her physicians have determined that

the University’s refusal to accommodate her medical needs put her

health at risk. Just 58 years old, Dr. Turner was not willing to

retire. She had not yet saved enough or contributed sufficient

funds to her Teachers Retirement System of Louisiana account to do

so comfortably.

4

For the remainder of the 2019-20 academic year, Dr. Turner

attempted to appeal this outcome as she continued to seek

accommodation for her IBS and be returned to teaching. But her

continued efforts were thwarted by the University administration.

On May 15, 2020, convinced that the University would not

accommodate her disability, Dr. Turner retired.

Dr. Turner sued the Board of Supervisors of the University of

Louisiana System and Steven H. Kenny, Jr. in state court, alleging

that the defendants violated her rights under the Family and

Medical Leave Act, 29 U.S.C. 2601, et seq. and that they violated

her rights under the Louisiana Handicap Discrimination law,

La.R.S. 23:301, et seq. for failure to accommodate and for

retaliation.3 Invoking the Court’s federal question jurisdiction,

the defendants removed the lawsuit to this Court. The defendants

promptly answered the complaint and the Court issued a scheduling

order. On July 23, 2021, the defendants filed an unopposed request

for leave to file an amended answer and affirmative defenses (among

the defenses advanced, the defendants invoked sovereign immunity

and qualified immunity) with a jury demand; the motion was granted.

On August 16, 2021, the plaintiff filed a motion requesting leave

to file an amended complaint; the unopposed motion was granted.

3 Her whistleblower claim was later withdrawn when she filed an

amended complaint.

5

The plaintiff now moves to strike the defendants’ first and second

affirmative defenses invoking qualified and sovereign immunity.

I.

Rule 12(f) allows the Court to strike “from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or

scandalous matter.” A motion to strike is disfavored, “a drastic

remedy to be resorted to only when required for the purposes of

justice.” Augustus v. Bd. Of Pub. Instruction of Escambia Cnty,

Fla., 306 F.2d 862, 868 (5th Cir. 1962)(quoting Brown v. Williamson

Tobacco Corp v. United States, 201 F.2d 819, 822 (6th Cir. 1953)).

“Even when technically appropriate and well-founded, motions to

strike are not [to] be granted in the absence of a showing of

prejudice to the moving party.” Abene v. Jaybar, LLC, 802 F. Supp.

2d 716, 723 (E.D. La. 2011)(Fallon, J.)(quoting 5C Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1381

(3d ed. 2004)).

Given the “insufficient defense” language of the Rule, “a

plaintiff desiring early resolution of an affirmative defense may

[invoke Rule 12(f)] to strike it[.]” C&C Inv. Properties, L.L.C.

v. Trustmark Nat’l Bank, 838 F.3d 655, 660 (5th Cir. 2016)(noting

that, instead of Rule 12(f), “the parties can agree to file an

early summary judgment motion without the need for full

6

discovery.”). To prevail on a motion to strike an affirmative

defense, a party must show that the affirmative defense is

“insufficient as a matter of law.” Kaiser Aluminum & Chem. Sales,

Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057-58 (5th Cir.

1982).

II.

The plaintiff moves to strike the defendants’ fist and second

affirmative defenses invoking qualified immunity and sovereign

immunity. The plaintiff contends that the defendant Board

voluntarily subjected itself to the jurisdiction of this Court,

thus waiving the defense of sovereign immunity, and further

contends that Mr. Kenny cannot raise the defense of qualified

immunity as to the plaintiff’s FMLA claims because he is considered

the “employer” for FMLA purposes. The defendants counter that the

plaintiff’s recently-filed amended complaint renders their

original Answer an inoperable pleading, thereby mooting the

plaintiff’s motion to strike it. If the defendants reassert these

challenged defenses in their amended answer, then that is the

appropriate time for the plaintiff to challenge them.

Additionally, the defendants submit that motions to strike are

highly disfavored such that where, as here, questions of law and

fact are presented, striking a pleading is premature and improper;

7

resolution of the sufficiency of such defenses would be more

reasonably addressed on the merits. The Court agrees.

The plaintiff has amended her complaint and the defendants

are now entitled and required to answer or otherwise respond to

the operative complaint.* For this reason alone, the plaintiff’s

request is moot. If the defendants advance the same affirmative

defenses in their amended answer, and the plaintiff seeks to

challenge those defenses again, the plaintiff should be mindful

that motions to strike are disfavored and any renewed challenge

should include supported reasons for why the defenses are

insufficient as a matter of law.

Accordingly, the motion to strike is DENIED as moot.

New Orleans, Louisiana, September 13, 2021

Mes ie ( Lua

MARTIN . C. FELDMAN

UNITED STATES DISTRICT JUDGE

4 In light of Hurricane Ida and its aftermath, the Court’s General

Order 21-12 automatically has extended the defendants’ responsive

pleading deadline.