Lefkowitz v. Administrators of the Tulane Educational Fund

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JANE ANNE LEFKOWITZ CIVIL ACTION

VERSUS NO. 21-1578

ADMINISTRATORS OF THE TULANE SECTION “B”(5)

EDUCATIONAL FUND, ET AL.

ORDER AND REASONS

Before the court are defendants’ motion to dismiss (Rec. Doc.

10), and plaintiff’s memorandum in opposition (Rec. Doc. 28),

For the following reasons, and subject to below noted conditions,

IT IS ORDERED that the motion to dismiss is GRANTED.

I. FACTS AND PROCEDURAL HISTORY

This action arises from civil torts claims, as well as a claim

for federal disability discrimination. Pro se plaintiff Jane Anne

Lefkowitz names as defendants Administrators of Tulane Educational

Fund (“Tulane”), Troy Smith, Nicole Smith, and Grinasha Dillon

(“Individual Tulane Defendants”) (collective “defendants”). Rec.

Doc. 1-2 (Entire State Court Record).

Plaintiff is a former Tulane employee who worked as a Peer

Support Specialist1 at the Early Psychosis Intervention Clinic –

New Orleans (“EPIC-NOLA”). Rec. Docs. 9-10. As a Peer Support

Specialist, she was required to perform support services for

1 The Louisiana Department of Health defines a Peer Support Specialist as “a

person in recovery from a behavioral health condition (mental health, substance

use, or co-occurring) who provides mentoring, guidance, and support services

and offers their skills to others who are experiencing behavioral health

challenges and receiving behavioral health services.” Rec. Doc. 10.

patients receiving treatment for behavioral health conditions.

From the outset of plaintiff’s employ at Tulane’s facility, she

contends that Tulane was fully aware that she had a pre-existing

mental health disability requiring workplace sensitivity and

training. Rec. Doc. 9.

She alleges being subjected to a mirage of violent episodes,

insults, and harassment by her co-workers and supervisors during

the 2019 calendar year.2 Id. Specifically, she asserts defendants

Grinasha Dillon and Nicole Smith were harassing her repeatedly

when they referred to Tulane patients as “crazy.” Id. According to

plaintiff, both Dillon and Smith knew that such patient name-

calling would agitate and upset her. Id. She alleges harassment

also occurred when co-workers and supervisors placed a sign on the

workplace breakroom refrigerator depicting “crazy” people and

ridiculing the patients. Rec. Doc. 9. Additionally, plaintiff

asserts emotional injury when Tulane denied her credit for work

performed and denied her an opportunity to present a “long-prepared

for presentation.” Id. She also claims to have suffered severe

emotional distress resulting from exclusion in workplace events

and team-building outings. Id.

2 Plaintiff states that she endured several incidents of harassment throughout

the 2019 year; however, plaintiff failed to expand on what specific days she

was harassed. The only incidents plaintiff discusses in detail are those

occurring on September 30, 2019.

On or about September 16, 2019, plaintiff met with Tulane

supervisors Michael Dyer and Ashley Weiss to discuss the

abovementioned allegations of harassment. Id. In an alleged

hostile tone, Weiss informed plaintiff that she needed to address

her concerns to Philip Wattle in Human Resources. Id. On or about

September 18, 2019, plaintiff met with Mr. Wattle and requested

transfer to a less hostile and more accommodating position within

Tulane. Rec. Doc. 9. However, Mr. Wattle denied her request and

told plaintiff she would have to “work it out” in her current

employment position. Id. Thereafter, plaintiff prepared a list of

requested disability accommodations along with her allegations of

harassment, and delivered it to Tulane’s Clinic Manager, Bess Hart,

and Program Manager, Michael Dyer. Upon receiving plaintiff’s

accommodation request, Tulane responded the same day with specific

accommodation suggestions, which plaintiff accepted. Id.

On or about September 30, 2019, plaintiff alleges Tulane IT

Manager, Troy Smith loudly criticized her for not being

sufficiently able to use or repair her work computer. Rec. Doc. 9.

Soon thereafter, defendants Dillon and Smith allegedly entered

plaintiff’s workspace and inappropriately invaded her body space,

“clicking ink pens behind her and close to her,” causing the

plaintiff to become more upset. Id. Plaintiff asserts Dillon and

Smith told her that “she was only imagining their harassment of

her” and that plaintiff was “a psychotic.” Id. Consequently,

plaintiff alleges she suffered a mental breakdown at Tulane,

resulting in Tulane immediately telling her to leave the workplace.

Id. Plaintiff asserts the removal from the workplace and refusal

to allow her to resume work constitute constructive termination of

her employment. Id.

On or about September 29, 2020, plaintiff filed a petition

for damages in the Civil District Court for the Parish of Orleans.

Rec. Doc. 1-2. That Court dismissed all claims against the

individual Tulane defendants and all state law employment

discrimination claims against Tulane. Id.; see also Rec. Doc. 10-

2 (state court Judgment). The state court then ordered plaintiff

to file an amended petition in accordance with Louisiana Code of

Civil Procedure articles 863 and 891 relative to remaining claims

against Defendant Tulane. Rec. Doc. 10.

On or about July 28, 2021, plaintiff filed a supplemental and

amending petition for damages in Civil District Court, re-pleading

her claims against all the individual defendants and asserting

federal employment discrimination claims against Tulane. Rec. Doc.

1-2. On or about August 19, 2021, defendants removed the matter to

this Court based on federal question jurisdiction. Rec. Doc. 1

(Notice of Removal). Subsequently, on September 8, 2021, plaintiff

sought leave to file a second supplemental and amending complaint,

re-alleging all claims against the individual Tulane defendants

and Tulane. Rec. Doc. 7.

Specifically, plaintiff alleges claims against Tulane for

wrongful termination, vicarious liability for employees’ tortious

conduct, employment discrimination, failure to accommodate under

Section 504 of the Rehabilitation Act, disability discrimination,

negligence, false arrest, defamation, and intentional infliction

of emotional distress. Rec. Doc. 9. (Second Supplemental and

Amending Petition). Against the individual Tulane defendants,

plaintiff alleges claims for intentional infliction of emotional

distress, unspecified “Louisiana tort law violations,” and failure

to accommodate under Section 504 of the Rehabilitation Act. Rec.

Doc. 9, p. 6.

On or about October 4, 2021, defendants filed a motion to

dismiss, seeking to dismiss all claims against the individual

Tulane defendants and Tulane sounding in tort and wrongful

termination. Rec. Doc. 10. However, defendants’ motion did not

address plaintiff’s claims against defendants under Section 504 of

the Rehabilitation Act for failure to accommodate. See id. On or

about December 6, 2021, plaintiff filed a memorandum in opposition

to defendants’ motion to dismiss. Rec. Doc. 28. Plaintiff did not

address the arguments defendants posed; but instead, merely stated

there is corroborating evidence of what she alleged in her

petition. Id.

II. LAW AND ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides that an

action may be dismissed “for failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). However, such a

motion is “viewed with disfavor and is rarely granted.” Kaiser

Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d

1045, 1050 (5th Cir. 1982). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim for relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2008)). “Factual allegations

must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 556. A claim is facially plausible

when the plaintiff has pleaded facts that allow the court to “draw

a reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 570.

On a motion to dismiss, asserted claims are liberally

construed in favor of the claimant, and all facts pleaded are taken

as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 164 (1993); see also Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).

Although a court required to accept all “well-pleaded facts” as

true, it is not required to accept legal conclusions as true.

Iqbal, 556 U.S. at 677–78. “While legal conclusions can provide

the framework of a complaint, they must be supported by factual

allegations.” Id. at 679. Similarly, “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements” will not suffice. Id. at 678. If factual allegations

are insufficient to raise a right to relief above the speculative

level, or if it is apparent from the face of the complaint that

there is an “insuperable” bar to relief, the claim must be

dismissed. Moore v. Metro. Human Serv. Dep't, No. 09-6470, 2010

WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, C.J.) (citing

Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492

F.3d 325, 328 n. 9 (5th Cir. 2007).

When a party is proceeding pro se, their filings are to be

“liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

“[A] pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by

lawyers.” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

The Court should “examine all of [the] complaint, including

attachments.” Clark v. Huntleigh Corp., 119 F. App'x 666, 667 (5th

Cir. 2005). Nevertheless, a pro se complaint must still “set forth

facts giving rise to a claim on which relief may be granted.”

Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993).

B. Plaintiff’s Failure to Address Tulane’s Opposition Arguments

The Fifth Circuit has noted that a plaintiff's failure to

defend her claims beyond her complaint constitutes abandonment of

those claims. Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1

(5th Cir. 2006); Heisler v. Kean Miller, LLP, No. CV 21-724, 2021

WL 3852261 (E.D. La. Aug. 27, 2021). District courts within the

Fifth Circuit have expressly applied this abandonment rationale in

dismissing a plaintiff’s claims. See, e.g., Heisler, 2021 WL

3852261 at *2; Arkansas v. Wilmington Tr. Nat'l Ass'n, No. 3:18-

CV-1481-L, 2020 WL 1249570, at *1 (N.D. Tex. Mar. 16, 2020);

Trieger v. Ocwen Loan Servicing, LLC, No. 3:19-CV-00100-L, 2019 WL

3860689 (N.D. Tex. Aug. 15, 2019).

In Trieger v. Ocwen Loan Servicing, LLC, the Northern District

of Texas court concluded that the plaintiffs abandoned their RESPA

claim against defendant Ocwen Loan Servicing, LLC because the

plaintiffs did not file a response to Ocwen's motion to dismiss.

No. 3:19-CV-00100-L, 2019 WL 3860689, at *9 (N.D. Tex. Aug. 15,

2019). In granting defendant's motion, the court noted that when

“a plaintiff fails to defend a claim in response to a motion to

dismiss ... the claim is deemed abandoned.” Id. See, e.g., Heisler,

2021 WL 3852261 at *3; Mocsary v. Ard, No. CV 17-1713-SDD-EWD,

2018 WL 4608485, at *13 (M.D. La. Sept. 25, 2018); U.S. ex rel.

Woods v. SouthernCare, Inc., 2013 WL 1339375 at *7 (S.D. Miss.

Mar. 30, 2013); Dean v. One Life Am., Inc., No. 4:11–CV–203–CWR–

LRA, 2013 WL 870352, at *2 (S.D. Miss. Mar. 7, 2013); Kellam v.

Servs., No. 12-352, 2013 WL 12093753, at *3 (N.D. Tex. May 31,

2013), aff'd sub nom., Kellam v. Metrocare Servs., 560 F. App'x

360 (5th Cir. 2014); Alexander v. Brookhaven Sch. Dist., No. 3:07–

CV–640–DPJ–JCS, 2009 WL 224902, at *4 (S.D. Miss. Jan. 28, 2009),

aff'd, 428 F. App'x 303 (5th Cir. 2011).

Review of plaintiff's opposition shows that plaintiff wholly

failed to defend her claims against defendants’ arguments.

Plaintiff's opposition makes no mention whatsoever as to any of

defendants’ arguments. As a result, plaintiff has waived her right

to respond to those arguments. Nevertheless, the Court will not

dismiss plaintiff's complaint with prejudice merely because she

failed to properly respond. See Webb v. Morella, 457 F. App'x 448

(5th Cir. 2012); Ramsey v. Signal Delivery Service, Inc., 631 F.2d

1210, 1214 (5th Cir. 1980) (overturning district court's decision

granting defendants’ motion to dismiss because the motion was

unopposed because dismissal with prejudice is a severe sanction).

The Fifth Circuit has held it is improper for a district court,

without considering the merits of the arguments before it, to grant

a motion to dismiss solely because it is unopposed. See Heisler,

2021 WL 3852261 at *3. Accordingly, the Court will only grant

defendants’ motion to dismiss if it has merit.

C. Plaintiff’s claims

i. State Law Tort Claims Against Individual Party Defendants

Troy Smith, Nicole Smith, and Grinasha Dillon

The principle of vicarious liability or respondeat superior

is codified in Louisiana Civil Code article 2320. This article

provides that an employer is liable for the tortious acts of its

employees that are performed “in the exercise of the functions in

which they are employed.” La. Civ. Code Ann. art. 2320. Thus, the

two issues for the Court to address is whether: (1) plaintiff

properly alleged tortious conduct against the individual

defendants; and (2) whether these alleged actions were

sufficiently employment-related that vicarious liability should

attach. See Olmeda v. Cameron Int'l Corp., 139 F. Supp. 3d 816

(E.D. La. 2015)

The Louisiana Supreme Court has outlined the parameters of

the test for vicarious liability as follows:

While the course of employment test refers to time and

place, the scope of employment test examines the

employment-related risk of injury. The inquiry requires

the trier of fact to determine whether the employee's

tortious conduct was “so closely connected in time,

place and causation to his employment-duties as to be

regarded a risk of harm fairly attributable to the

employer's business, as compared with conduct motivated

by purely personal considerations entirely extraneous to

the employer's interests.”

Russell v. Noullet, 721 So.2d 868, 871 (La.1998) (quoting LeBrane

v. Lewis, 292 So.2d 216, 218 (La.1974)). In LeBrane, the Louisiana

Supreme Court identified four factors to be considered in

determining vicarious liability: (1) whether the tortious act was

primarily employment rooted; (2) whether the tortious act was

reasonably incidental to the performance of the employee's duties;

(3) whether the act occurred on the employer's premises; and (4)

whether it occurred during the hours of employment. LeBrane, 292

So.2d at 218; see also Olmeda v. Cameron Int'l Corp., 139 F. Supp.

3d 816 (E.D. La. 2015); Baumeister v. Plunkett, 673 So.2d 994, 996

(La.1996). It is not necessary that all four LeBrane factors be

met to find vicarious liability. See Bates v. Caruso, 881 So.2d

758, 762 (La.Ct.App.2004).

In Baumeister v. Plunkett, the Louisiana Supreme Court held

that the court of appeals erred in finding a hospital liable for

the sexual battery committed by one of its nursing supervisors on

a co-employee during working hours on the hospital's premises. 673

So. 2d at 999. In so holding, the state Supreme Court embraced

the four-part test for vicarious liability, mentioned supra. Id.

at 996–97. The Court found that factors (3) and (4) were met, but

not (1) and (2). The Court concluded that the “sexual assault was

entirely extraneous to [the] employer's interests.” Id. at 1000.

Moreover, the court found that the attack was motivated by personal

interests and the assault was not connected to the employee's job

in any way. Id.

Here, defendants argue that plaintiff’s state law tort claims

against the individually named Tulane defendants should be

dismissed under the doctrine of vicarious liability. Rec. Doc.

10. Defendants’ argument rests on their contentions that all the

individual defendants were acting within the course and scope of

their employment at the time of the alleged torts. Id. Although

plaintiff did not address this argument in her opposition, she

admitted in her petition that Tulane is vicariously liable for the

actions of the individual defendants. See Rec. Doc. 28; Rec. Doc.

9 at 35. Upon review, plaintiff’s tortious conduct claims against

Troy Smith, Nicole Smith, and Grinasha Dillon must be dismissed

under the doctrine of vicarious liability.3

First and foremost, the alleged tortious actions plaintiff

describes in her complaint do not rise to the level of tort

violations. Plaintiff asserts the defendants intentional inflicted

emotional distress by “clicking ink pens” close to her workspace,

using a raised voice to talk to her, and calling the Tulane

3 Under the right circumstances, plaintiff’s claim could have been dismissed

under the full faith and credit clause, codified at 28 U.S.C. § 1738.

Essentially, this Clause states: “Full Faith and Credit shall be given in each

State to the public Acts, Records, and judicial Proceedings of every other

State. And the Congress may by general Laws prescribe the Manner in which such

Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S.

Const. art. IV, § 1. The Full Faith and Credit Act expands the Clause and

requires federal courts to give full faith and credit to state court

proceedings:

The records and judicial proceedings of any court of any ... State,

Territory or Possession ... shall have the same full faith and

credit in every court within the United States and its Territories

and Possessions as they have by law or usage in the courts of such

State, Territory or Possession from which they are taken.

28 U.S.C. § 1738. Thus, a federal court is required to give a state-court

judgment the same preclusive effect that it would have under the law of the

state in which it was rendered. Migra v. Warren City Sch. Dist. Bd. of Educ.,

465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Given the Civil District

Court for the Parish of Orleans rendered judgement dismissing all plaintiff’s

claims against the individual Tulane defendants, this Court could find

plaintiff’s re-alleged tort claims against these defendants to be precluded.

However, because Defendants failed to assert res judicata as an affirmative

defense, this Court is barred from precluding plaintiff’s claims under this

doctrine sua sponte. Mowbray v. Cameron Cty., Tex., 274 F.3d 269 (5th Cir. 2001)

(“Generally, res judicata is an affirmative defense that must be pleaded, not

raised sua sponte.)

patients “crazy.” Rec. Doc. 9. None of these actions allegedly

done by the defendants rise to level of “extreme and outrageous”

conduct required for plaintiff’s claim. See Brackens v.

Stericycle, Inc., 829 F. App’x 17, 21(5th Cir. 2020) (stating a

plaintiff must “demonstrate that the conduct he experienced went

far beyond insulting, threatening, annoying, or oppressive; it had

to be so outrageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized community.”)

Even assuming arguendo that the first element had been

satisfied, defendants’ alleged tortious conduct was done during

the course and scope of their employment. This case can be

distinguished from Baumeister because each of the Tulane

employees’ actions were connected to their respective job

positions. Troy Smith’s alleged act of criticizing plaintiff for

not being sufficiently able to use or repair her work computer,

was done within the course and scope of his employment. Mr. Smith

is Tulane’s IT manager, therefore it’s his job to enter employees’

workspaces, tend to their computers and other IT devices, and

discuss IT related matters with co-workers. Additionally, per

plaintiff’s complaint, this act occurred on Tulane’s premises and

during business hours as she was “on duty and working in her Tulane

clinic workspace” when Mr. Smith approached her. Rec. Doc. 9.

Likewise, defendants Dillon and Smith’s actions also occurred

during the course and scope of their employment. Plaintiff contends

Dillon and Smith entered her workspace during work hours and

inappropriately invaded her body space, “clicking ink pens behind

her and close to her.” These actions occurred on Tulane’s premises

as all parties were in plaintiff’s “workspace” and plaintiff stated

in her complaint that she was at work during this incident.

Further, the act of “clicking ink pens” was incidental to both

Dillon and Smith’s employment duties as both defendants would

likely need to have ink pens handy to perform certain functions of

their jobs and “click” them in order to use them. Accordingly,

plaintiff’s claims against these individual defendants are

dismissed.

ii. State Law Employment Discrimination Claims Against Tulane

a. Plaintiff’s claims under Civil Code article 23154

Under Louisiana law, when two statutes conflict, the “statute

specifically directed to the matter at issue must prevail as an

exception to the statute more general in character.” Kennedy v.

Kennedy, 699 So.2d 351, 358 (La. 1996). The Louisiana legislature

has developed a specific statutory scheme to address employment

discrimination, Louisiana Employment Discrimination Laws (LEDL).

4 The Orleans Parish Civil District Court previously ruled in Tulane’s favor,

holding plaintiff had no cause of action for employment discrimination under

La. Civil Code article 2315. Rec. Doc. 10-2 (state court judgment). However,

plaintiff reasserted this claim against Tulane in her Second Supplemental and

Amending Complaint. Because the Court cannot apply the doctrine of res judicata

sua sponte, the Court must evaluate plaintiff’s claims once more for the

purposes of defendants’ motion.

See Jackson v. Country Club of Louisiana, Inc., No. CV 20-452-SDD-

EWD, 2021 WL 261538, *7 (M.D. La. Jan. 26, 2021). The LEDL provides

employees with a state cause of action against employers,

employment agencies, and labor organizations, and specifies the

remedies available in civil discrimination suits. La. Rev. Stat.

§ 23:303(A).

In Roberson-King v. Louisiana Workforce Commission, the Fifth

Circuit affirmed a district court's dismissal of a plaintiff's

employment discrimination claims brought generally under Article

2315, finding that “[t]he Louisiana legislature has developed a

specific statutory scheme to address employment discrimination.”

904 F.3d 377 (5th Cir. 2018). The Court went on to note that the

plaintiff “identifie[d] no Louisiana state court decisions

permitting recovery for employment discrimination under Article

2315,” and “[b]ecause such a cause of action is inconsistent with

the LEDL,” the district court properly dismissed this claim. Id.

at 380.

Like the plaintiff in Roberson-King, this plaintiff also

alleged state law employment discrimination claims but failed to

cite the appropriate provisions under Louisiana Employment

Discrimination Law (“LEDL”). Instead, plaintiff argues that Tulane

is liable for employment discrimination under Civil Code article

2315. Defendants respond by asserting plaintiff does not have a

cause of action under that general provision; rather, plaintiff

should have argued a claim under the LEDL.

Numerous Louisiana and federal cases have found that

employment discrimination claims cannot be maintained under

general Louisiana Civil Code articles. See Jackson v. Country Club

of Louisiana, Inc., No. CV 20-452-SDD-EWD, 2021 WL 261538, *6 (M.D.

La. Jan. 26, 2021) (dismissing plaintiffs’ employment

discrimination claims brought under La. Civil Code article 2315);

Roberson-King v. Louisiana Workforce Comm'n, Off. of Workforce

Dev., 904 F.3d 377 (5th Cir. 2018); McCoy v. City of Shreveport,

492 F.3d 551, 563 (5th Cir. 2007) (holding La. Civil Code article

2315 cannot serve as the basis for a cause of action that is

derived from employment discrimination). Because the instant cause

of action sounding in employment discrimination cannot be

maintained under general Louisiana codal article 2315, the former

cause of action is dismissed as a matter of law.

b. Plaintiff’s claims under the LEDL5

Although plaintiff alleged employment discrimination claims

against Tulane, she failed to assert the proper statute, e.g. the

LEDL. Nevertheless, even assuming plaintiff had articulated the

proper statute, the Court must still dismiss the claim.

The LEDL defines “employer” as follows:

5 Orleans Parish Civil District Court also ruled in Tulane’s favor on this

issue, holding plaintiff had no cause of action against Tulane under the LEDL.

See Rec. Doc. 10-2 (state court judgment).

“Employer” means a person, association, legal or

commercial entity, the state, or any state agency,

board, commission, or political subdivision of the state

receiving services from an employee and, in return,

giving compensation of any kind to an employee. The

provisions of this Chapter shall apply only to an

employer who employs twenty or more employees within

this state for each working day in each of twenty or

more calendar weeks in the current or preceding calendar

year. “Employer” shall also include an insurer, as

defined in R.S. 22:46, with respect to appointment of

agents, regardless of the character of the agent's

employment. This Chapter shall not apply to the

following:

…

(b)Employment of an individual by a private educational

or religious institution or any nonprofit corporation,

or the employment by a school, college, university, or

other educational institution or institution of learning

of persons having a particular religion if the school,

college, university, or other educational institution or

institution of learning is, in whole or in substantial

part, owned, supported, controlled, or managed by a

particular religion or by a particular religious

corporation, association, or society, or if the

curriculum of the school, college, university, other

educational institution, or institution of learning is

directed toward the propagation of a particular

religion.

La. Stat. Ann. § 23:302.

In the instant case, there is no disputing that defendant is

not included in the statute’s definition of an employer.6 Tulane

is both a private educational institution and a non-profit

corporation, both of which are explicitly excluded under the LEDL.

This decision is also consistent with the Court’s previously issued

6 In her complaint, plaintiff stated that Tulane was “a Louisiana non-profit

corporation conducting business as a non-profit institution of higher learning

….” Rec. Doc. 9 at 7.

rulings on this issue concerning the defendant, Administrators of

the Tulane Educational Fund. See Hartz v. Adm'rs of the Tulane

Educ. Fund, 275 F. App'x 281, 286 (5th Cir. 2008) (“Tulane is a

non-profit educational institution.”); Rubinstein v. Admin. of the

Tulane Educ. Fund, No. 08-cv4780, slip op.10 at 1-2 (E.D. La. Feb.

9, 2009) (Zainey, J.) (dismissing LEDL claims because Tulane is

exempt from coverage); Howard v. Lemmier, No. CIV.A. 10-1814, 2011

WL 5508995 (E.D. La. Oct. 20, 2011), report and recommendation

adopted, No. CIV.A. 10-1814, 2011 WL 5508978 (E.D. La. Nov. 10,

2011) (Roby, J.) (“Tulane University, as a private entity, is not

a state actor.”); Berenson v. Administrators of Tulane Univ. Educ.

Fund, No. CV 17-329, 2017 WL 2955728 (E.D. La. July 11, 2017)

(Vance, J.) (noting that Tulane is not an employer under the LEDL

and dismissing the LEDL claim). Accordingly, even if plaintiff

asserted an LEDL claim against defendants, plaintiff’s claim would

still be dismissed.

iii. Wrongful Termination and Constructive Discharge Against

Tulane

It is well known that Louisiana follows the doctrine of

employment-at-will. This principle is codified in Article 2747 of

the Louisiana Civil Code. La. Civ. Code art. 2747 (“A man is at

liberty to dismiss a hired servant attached to his person or

family, without assigning any reason for so doing. The servant is

also free to depart without assigning any cause.”) Under this

doctrine, both employers and employees are free to end the

employment relationship at any time, and for any reason, without

liability “provided that the termination violates no statutory or

constitutional provision ...” See Johnson v. Acosta, 2010 WL

4025883, at *6 (E.D.La. 2010); see also Stewart v. Courtyard Mgmt.

Corp., 155 F. App'x 756, 758 (5th Cir. 2005); Fletcher v. Wendelta,

Inc., 43,866–CA (La.App. 2 Cir. 1/14/09) 999 So.2d 1223, 1229–30.

In other words, an employer is free to terminate the services of

an employee without reason, unless specifically prohibited by the

U.S. Constitution, the Constitution of Louisiana, or statute.

Stewart v. Courtyard Mgmt. Corp., 155 F. App'x 756, 758 (5th

Cir.2005) (citing Gilbert v. Tulane Univ., 909 F.2d 124, 125 (5th

Cir.1990); Thorns v. Monroe City Sch. Bd., 542 So.2d 490, 492

(La.1989); Robinson v. Healthworks Int'l, L.L.C., 837 So.2d 714,

721 (La.App.2d Cir.2003).

For plaintiff’s claim of wrongful termination to be valid,

there must either be a finding that she was hired for a fixed term

or that her termination violated an existing law. See Stewart v.

Courtyard Mgmt. Corp., 155 F. App’x 756, 758 (5th Cir. 2005).

Plaintiff has not alleged that she was employed by Tulane for a

fixed term and therefore her termination was wrongful because it

was premature. Thus, the Court must only consider one question:

Whether plaintiff’s alleged disability discrimination was

constitutionally or statutorily protected from the exercise of

arbitrary discretion of Tulane’s right to terminate her? The answer

to this question is no.

Plaintiff stated claims for disability discrimination under

both Louisiana article 2315 and Section 504 of the Rehabilitation

Act. As shown supra, plaintiff’s claim for disability

discrimination under the general catchall tort article 2315 fails

because such a claim can only be asserted under the LEDL.

Additionally, as shown supra, even if plaintiff had alleged Tulane

violated the LEDL, that claim would still be dismissed as a matter

of law given Tulane’s status as a private, non-profit educational

institution.

Turning to the Section 504 claim, plaintiff correctly asserts

that Section 504 prohibits disability discrimination by recipients

of federal funding. However, plaintiff did not take into account

that the Americans with Disabilities Act (“ADA”) and the

Rehabilitation Act are interpreted in pari materia. Frame v. City

of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (citing Kemp v.

Holder, 610 F.3d 231, 234–35 (5th Cir. 2010); Pace v. Bogalusa

City Sch. Bd., 403 F.3d 272, 287–88, 289 n. 76 (5th Cir. 2005) (en

banc)). The standard used to determine whether Tulane violated

Section 504 is the exact same standard applied under Title I of

the ADA.7 See Bailey v. Bd. of Commissioners of Louisiana Stadium

7 Although the standard for determining whether a violation occurred is the same

between the two statutes, unlike the ADA, a plaintiff is not required to exhaust

her administrative remedies prior to filing suit against a federal grantee under

& Exposition Dist., 441 F. Supp. 3d 321 (E.D. La. 2020) (stating

that to show a violation of either the ADA or Section 504, a

plaintiff must prove the same three elements); see also Flynn v.

Distinctive Home Care, Inc., 812 F.3d 422, 426 (5th Cir. 2016).

Essentially, plaintiff must prove: (1) that she has a

qualifying disability; (2) that she is being denied the benefits

of services, programs, or activities for which the entity is

responsible, or is otherwise discriminated against by the entity;

and (3) that such discrimination is by reason of her disability.

Miraglia v. Bd. of Supervisors of Louisiana State Museum, 901 F.3d

565, 574 (5th Cir. 2018); Hale v. King, 642 F.3d 492, 499 (5th

Cir. 2011) (per curiam).

Plaintiff’s claim under Section 504 cannot stand for the basis

of her wrongful termination claim given she has not properly pled

all required elements. First, plaintiff failed to allege what

qualified disability she suffers from. She merely states that she

has “preexisting, serious mental health disabilities requiring

workplace sensitivity.” Such conclusory assertions are not enough

to satisfy pleading requirements. Further, plaintiff did not

present any factual support for the notion that Tulane committed

the alleged discriminatory act because of her disability. Because

plaintiff has failed to properly plead all the elements required,

the Rehabilitation Act. Webster v. Bd. of Supervisors of Univ. of Louisiana

Sys., No. CIV.A. 13-6613, 2015 WL 4197589 (E.D. La. July 10, 2015).

her claim for wrongful termination based on disability

discrimination in violation of Section 504 must be dismissed.

iv. State Law Negligence Claim Against Tulane

Claims for negligent infliction of emotional distress and

negligent failure to supervise are barred as a matter of law by

the Louisiana Worker's Compensation Act, which provides the

exclusive remedy for any claim of negligence against an employer.

La. Rev. Stat. § 23:1032; Jackson v. Country Club of Louisiana,

Inc., No. CV 20-452-SDD-EWD, 2021 WL 261538 (M.D. La. Jan. 26,

2021; Bertaut v. Folger Coffee Co., No. CIVA 06-2437 GTP, 2006 WL

2513175, *3 (E.D. La. Aug. 29, 2006) (Zainey, J.) (dismissing

plaintiff’s claims against her employer for negligent infliction

of emotional distress, failure to train and failure to supervise

as they are barred by the Louisiana Workers' Compensation Statute);

Oramous v. Mil. Dep't, No. CIV.A. 05-3677, 2007 WL 1796194, *9

(E.D. La. June 18, 2007) (Wilkinson, J.) (“Plaintiff’s claims of

negligent infliction of emotional distress and negligent failure

to supervise are barred as a matter of law by the LWCA”).

In their opposition, defendants argue that plaintiff's

negligence claims fail because Louisiana's Workers Compensation

Act (“LWCA”) provides an exclusive remedy. After review, the Court

finds that to the extent plaintiff asserts any negligence claims

against Tulane, such claims fall within the exclusive remedy of

the LWCA.

Plaintiff presented several negligence-based claims against

Tulane for lack of proper oversight, poor policy implementation,

and lack of supervision. However, because plaintiff was an employee

of Tulane during the time of these alleged negligent actions,

plaintiff’s claims are barred under the LWCA. Hilliard v. Parish,

991 F. Supp. 2d 769 (E.D. La. 2014) (Milazzo, J.) (“Louisiana

courts routinely dismiss negligence claims against employers

arising in the course and scope of employment.”) plaintiff further

asserts that she suffered emotional distress from Tulane’s

negligent actions, contending that her emotional damages are not

barred by the LWCA scheme. However, the LWCA’s exclusive remedy is

not rendered inapplicable just because plaintiff seeks damages for

emotional injuries. See Garcia v. Algiers Charter Sch. Ass'n, Inc.,

No. CV 17-8126, 2018 WL 1234961 (E.D. La. Mar. 9, 2018) (LWCA’s

“exclusive remedy extends to damages for emotional distress.”)

Because plaintiff’s alleged injuries arise out of and in the course

of her employment, plaintiff’s negligence claims are barred by the

LWCA and must be dismissed.

v. False Imprisonment and False Arrest Claims Against Tulane

In Louisiana, false arrest and false imprisonment are not

recognized as separate torts. Parker v. Town of Woodworth, No. CA

11–1275,2012 La.App. LEXIS 256, at *7–8, 2012 WL 717355 86 So.3d

141 (La.App. 3 Cir.2012) (internal citations omitted). A claim for

false arrest or false imprisonment under Louisiana law requires a

plaintiff to establish both: (1) proof of restraint; and (2) lack

of legal authority. Grant v. Gusman, No. CV 17-2797, 2021 WL

1216528 (E.D. La. Mar. 31, 2021); Vinas v. Serpas, No. CIV.A. 10-

3211, 2012 WL 2135286 (E.D. La. June 12, 2012); Richard v. Richard,

74 So.3d 1156, 1159 (La.2011). As such, false imprisonment “may

not be predicated on a person’s unfounded belief that [she] was

restrained” when she was not. Hernandez v. Theriot, 709 F. App'x

755, 758 (5th Cir. 2017).

Plaintiff has failed to properly assert a cause of action for

false imprisonment or false arrest. Instead of providing factual

support of a restraint, plaintiff repeatedly stated in her

complaint that Tulane instructed her to “immediately leave and

vacate the Tulane clinic workplace.” Rec. Doc. 9. Plaintiff’s

assertion is the exact opposite of what is required for her cause

of action. Furthermore, plaintiff has not alleged any facts that

she was ever confined or retrained on Tulane’s premises to support

a claim of false imprisonment. Accordingly, this claim is

dismissed.

vi. Defamation Claims Against Tulane

Defamation is a tort involving the invasion of a person's

interest in his or her reputation and good name. Sassone v. Elder,

626 So.2d 345, 350 (La. 1993). To maintain a defamation action,

the plaintiff must prove the following elements: “(1) a false and

defamatory statement concerning another; (2) an unprivileged

publication to a third party; (3) fault (negligence or greater) on

the part of the publisher; and (4) resulting injury.” Kennedy v.

Sheriff of E. Baton Rouge, 935 So.2d 669, 674 (La. 2006); Henry v.

Lake Charles American Press, L.L.C., 566 F.3d 164, 181 (5th Cir.

2009). If any of these elements is lacking, the cause of action

fails. Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So. 2d 129,

139.

Here, plaintiff alleges three potential instances of

defamation: (1) Tulane allowance of “details of the petitioner’s

separation from employment to become part of her employment

record;” (2) Tulane’s “negative references or comments;” and (3)

Tulane’s “ejection” of plaintiff from the workplace in front of

spectators. Rec. Doc. 9. Upon review, none of these instances rise

to the level of defamation.

a. Plaintiff’s claim for defamation resulting from her

employment record

Plaintiff’s defamation claim resulting from Tulane including

details of her termination in her employment record must be

dismissed given plaintiff failed to properly plead all required

elements. First, plaintiff did not allege the existence of a false

and defamatory statement regarding her termination that was

subsequently included in her employment record. Instead, she puts

forth only “conclusory allegations” that Tulane “defamed and

slandered [the] petitioner’s reputation.” We need not accept these

unsupported allegations as true. See Plotkin v. IP Axess Inc., 407

F.3d 690, 696 (5th Cir. 2005). Secondly, plaintiff did not allege

that the statements allegedly made by Tulane in her employment

record were published to a third-party. This is a fatal defect

because, “[i]n Louisiana, statements between employees, made

within the course and scope of their employment, are not statements

communicated or publicized to third persons for the purposes of a

defamation claim.” Williams v. United Parcel Serv., Inc., 757 F.

App'x 342, 345 (5th Cir. 2018) (citing Commercial Union Ins. Co.

v. Melikyan, 424 So.2d 1114, 1115 (La. Ct. App. 1982)).

Accordingly, this claim must be dismissed.

b. Tulane’s alleged negative references

Like the defamation claim supra, this claim must also be

dismissed as plaintiff failed to properly plead all required

elements. Once again, plaintiff points to no statements made by

Tulane to constitute defamation. Rather, plaintiff merely states

that she “reasonably believes” that Tulane’s negative references

contributed to her not being hired by another employer. Rec. Doc.

9. Not only has plaintiff not supplied the alleged negative

references, but she has also failed to assert to whom these

statements were published, i.e. the potential employers. Such

unsupported allegations are not enough to defeat a motion to

dismiss. See Jacob v. Kopfler, No. CV 04-1323, 2005 WL 8174246

(E.D. La. June 14, 2005) (stating a plaintiff must, “at a minimum,

identify the alleged defamatory statements, the maker of the

statements, the date the statements were made or published, and

the third parties to whom the statements were made or published.”)

Accordingly, plaintiff’s defamation claim based on Tulane’s

alleged negative references must be dismissed.

c. Plaintiff’s claim resulting from Tulane “ejecting” her from

the premise.

This claim must likewise be dismissed given Tulane’s alleged

ejection of plaintiff from its premises is not a statement at all

but an action. Plaintiff needed to allege factual allegations that

Tulane made a false and defamatory statement; but instead, the

only thing plaintiff asserted was that Tulane defamed her “due to

the exposure and spectacle” created by defendants allowing others

to witness plaintiff getting ejected from the property. Rec. Doc.

9. Because plaintiff failed to assert that Tulane published any

false words or statements, this defamation claim is also dismissed.

See Jackson v. Patterson, No. 17-6361, 2018 U.S. Dist. LEXIS

103895, at *7 (E.D. La. June 21, 2018) (Lemmon, J.) (plaintiff

must prove publication of “words which tend to harm the reputation

of another so as to lower the person in the estimation of the

community …”) (emphasis added).

vii. Claim for Intentional Infliction of Emotional Distress

Against Tulane

To state a claim for intentional infliction of emotional

distress, a plaintiff must allege that: (1) the defendant's conduct

was extreme and outrageous; (2) the emotional distress suffered by

the plaintiff was severe; and (3) the defendant intended to inflict

severe emotional distress, or knew that such distress would be

certain or substantially certain to result from his conduct.

Brackens v. Stericycle, Inc., 829 F. App'x 17, 21 (5th Cir. 2020);

Martin v. Am. Midstream Partners, LP, 386 F. Supp. 3d 733 (E.D.

La. 2019); White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).

To satisfy the first element, the defendant's conduct must “go

beyond all possible bounds of decency, and ... be regarded as

atrocious and utterly intolerable in a civilized community.”

White, 585 So.2d at 1209. Such conduct “does not extend to mere

insults, indignities, threats, annoyances, petty oppressions, or

other trivialities. Id. Persons must necessarily be expected to

be hardened to a certain amount of rough language, and to

occasional acts that are definitely inconsiderate and unkind.” Id.

Recognition of a cause of action in a workplace setting is

“usually limited to cases involving a pattern of deliberate,

repeated harassment over a period of time.” See id.; see also

Bustamento v. Tucker, 607 So.2d 532, 538 (La.1992) (explaining

that “this has been characterized as a sliding scale approach under

which even relatively ‘mild’ harassment may become tortious if

continued over a substantial period of time”). Moreover, cases

arising in the workplace are limited to situations where the

distress is “more than a reasonable person could be expected to

endure” and the offending conduct is “intended or calculated to

cause severe emotional distress.” See Nicholas v. Allstate Ins.

Co., 765 So.2d 1017, 1027 (La.2000).

Plaintiff claims that she was denied a private workspace and

access to workplace accounts, excluded from work events, and denied

the opportunity to present a “long-prepared for presentation.”

Rec. Doc. 9. Although plaintiff may have suffered from the above

actions, none of these alleged acts rise to the level of “extreme

and outrageous” conduct. Deville v. Robinson, 2013-832 (La. App.

3 Cir. 2/26/14), 132 So. 3d 1277 (stating a defendant cannot be

held liable for “mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities.”) Additionally, being

excluded from work events and not being able to present a prepared

presentation are situations reasonable people are expected to

endure on the job, and in fact do endure daily. Plaintiff also

failed to properly allege that Tulane intended or calculated to

cause her severe emotional distress. Therefore, plaintiff has not

properly asserted a claim for intentional infliction of emotional

distress against Tulane and this claim is dismissed.

viii. Federal Discrimination Claim Against Individual Tulane

Defendants

Section 504 of the Rehabilitation Act provides:

No otherwise qualified individual with a disability in

the United States ... shall, solely by reason of her or

his disability, be excluded from the participation in,

be denied the benefits of, or be subjected to

discrimination under any program or activity receiving

Federal financial assistance or under any program or

activity conducted by any Executive agency or by the

United States Postal Service.

Duhon v. Bd. of Supervisors of Louisiana State Univ. & Agric. &

Mech. Coll., No. CV 20-2022, 2021 WL 5562156 (E.D. La. Aug. 23,

2021). To state a claim under § 504, a plaintiff must allege: “(1)

that he has a qualifying disability; (2) that he is being denied

the benefits of services, programs, or activities for which the

public entity is responsible, or is otherwise discriminated

against by the public entity; and (3) that such discrimination is

by reason of his disability.” Hale v. King, 642 F.3d 492, 499 (5th

Cir. 2011). Additionally, under § 504, the plaintiff must also

“allege that the specific program or activity with which he or she

was involved receives or directly benefits from federal financial

assistance.” Block v. Texas Bd. of L. Examiners, 952 F.3d 613, 619

(5th Cir. 2020) (quoting Miller v. Tex. Tech Univ. Health Scis.

Ctr., 421 F.3d 342, 345 (5th Cir. 2005) (en banc)).

A plaintiff cannot sue her supervisors individually for

employment discrimination under Section 504 if those supervisors

did not receive federal funding. See Duhon v. Bd. of Supervisors

of Louisiana State Univ. & Agric. & Mech. Coll., No. CV 20-2022,

2021 WL 5562156 (E.D. La. Aug. 23, 2021); Flynn v. Distinctive

Home Care, Inc., 812 F.3d 422, 430 (5th Cir. 2016); Lollar v.

Baker, 196 F.3d 603 (5th Cir.1999). In Lollar, the Fifth Circuit

held that the plaintiff could not sue her supervisor individually

for employment discrimination under Section 504 of the

Rehabilitation Act, not because the supervisor was not the

plaintiff's employer, but rather because the individual supervisor

did not herself receive federal financial assistance. 196 F.3d 196

F.3d 603, 609 (5th Cir.1999) (“Here it is clear that [the state

agency]—not [the plaintiff's supervisor]—is the program recipient

of the federal financial assistance. Consequently, Lollar cannot

sue [her supervisor], individually, under the [Rehabilitation]

Act.”); see also Cole v. Velasquez, 67 F. App'x 252 n.11 (5th Cir.

2003).

In this case, plaintiff alleges several claims against the

individual Tulane defendants for violations of Section 504 of the

Rehabilitation Act. Rec. Doc. 9. In response, defendants assert

plaintiff cannot sue her supervisors individually for employment

discrimination under Section 504 because that statute does not

provide for individual liability. Rec. Doc. 10. The defendants are

correct. Like the plaintiff in Lollar who could not sue her

supervisors, this plaintiff also cannot sue the individual Tulane

defendants under Section 504. Troy Smith, Nicole Smith, and

Grinasha Dillon did not receive federal assistance; rather, their

employer, Tulane, was the entity that received federal funds. Thus,

the proper defendant for plaintiff’s claim under Section 504 is

Tulane and Tulane alone. See Flynn v. Distinctive Home Care, Inc.,

812 F.3d 422 (5th Cir. 2016). Accordingly, plaintiff's Section 504

claims against the individual defendants cannot stand, and thus

are dismissed.8

ix. Plaintiff’s Claims Against “Tulane Clinic” as an Individual

Entity

First and foremost, Rule 12(b) does not specifically

authorize a motion to dismiss based on a lack of capacity to be

sued. However, “[f]ederal courts...traditionally have entertained

certain pre-answer motions that are not expressly provided for by

the rules or by statutes” including motions raising a lack of

capacity to sue or be sued. Clark v. Lafayette Police Dep't, No.

6:18-CV-00058, 2018 WL 3357899 (W.D. La. June 22, 2018), report

and recommendation adopted, No. 6:18-CV-00058, 2018 WL 3357257

(W.D. La. July 9, 2018)(quoting 5C Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1360 (3d ed. 2004)). “The

Fifth Circuit has implicitly approved 12(b) motions arguing the

lack of capacity to be sued.” Darby v. Pasadena Police Dep't, 939

F.2d 311, 3114 (5th Cir. 1991) (affirming that Pasadena Police

Department had no jural existence and therefore was properly

dismissed from suit); Angers ex rel. Angers v. Lafayette Consol.

Gov't, 2007 WL 2908805, at *1 (W.D. La. Oct. 3, 2007). Therefore,

the Court will consider Defendants’ Rule 12(b)(6) motion to dismiss

8 Defendant’s motion to dismiss did not address plaintiff’s claims against

Tulane under Section 504 of the Rehabilitation Act. Therefore, Plaintiff’s claim

against defendant Tulane remains and is not subject to dismissal.

claims against “Tulane Clinic” based on a lack of capacity to be

sued.

Federal Rule of Civil Procedure 17(b)(3) provides, in

pertinent part, the “capacity to sue or be sued shall be determined

by the law of the state in which the district court is held.” Under

the Louisiana Civil Code, there are two kinds of persons that are

capable of being sued: natural persons and juridical persons. See

La. Civ. Code art. 24. Article 24 defines a natural person as “a

human being” and a juridical person as “an entity to which the law

attributes personality, such as a corporation or partnership.” Id.

Juridical persons are “creature[s] of the law and by definition,

[have] no more legal capacity than the law allows.” Angers ex rel.

Angers v. Lafayette Consol. Gov't., 2007 WL 2908805, at *2. If a

person is neither natural nor juridical, then it does not have

procedural capacity to sue or be sued. See Roy v. Alexandria City

Council, 984 So. 2d 191, 194 (La. App. 3 Cir. 5/7/08). “[I]n the

absence of law providing that an entity may sue or be sued, the

entity lacks such capacity.” Dantzler v. Pope, No. CIV.A. 08-3777,

2009 WL 959508 (E.D. La. Apr. 3, 2009).

Although plaintiff did not name “Tulane Clinic” as a defendant

in this matter, plaintiff continuously states that she is

attempting to bring an individual cause of action against “Tulane

Clinic.” Rec. Doc. 9. In their motion to dismiss, defendants assert

these claims against “Tulane Clinic” must be dismissed as the

entity cannot be sued. Rec. Doc. 10. Defendants present that

“Tulane Doctors Specialty Psychiatry Clinic” or “Tulane Clinic” is

not an independent corporation or juridical entity but rather a

part of Tulane University, and thus it lacks capacity to be sued.

Rec. Doc. 10. Given that “Tulane Clinic” is not an independent

corporation or juridical entity, it indeed lacks the capacity to

be sued.

x. Plaintiff’s Section 504 claim against Tulane for failure

to Accommodate

In their motion to dismiss, defendants expressly stated that

it “does not address plaintiff’s claims against Tulane under

federal law, specifically Section 504 of the Rehabilitation Act.”

Rec. Doc. 10 at pg. 2. Defendants also went on to note that the

only Section 504 claim the motion addresses is the claim plaintiff

asserts against the individual Tulane defendants. Although

defendants clearly did not address plaintiff’s Section 504 claim

against Tulane, such an analysis was required to evaluate whether

plaintiff’s wrongful termination claim could stand. See subsection

three (3) discussion. As shown supra, plaintiff’s claim under

Section 504 could not stand for the basis of her wrongful

termination claim given she did not properly plead all required

elements. Applying the same reasoning, plaintiff’s claim for

failure to accommodate likewise fails because she has not pled

that she suffers from a qualified disability, or that Tulane denied

her accommodations because of her disability. Rec. Doc. 9 at pg.

26-27. Moreover, by plaintiff’s own admissions, it would seem

Tulane had in fact proposed reasonable accommodations to

plaintiff, which she in turn accepted. Rec. Doc. 9 at pg. 27.

Given the similarity and overlap in the analysis between

plaintiff’s wrongful termination claim based on Section 504 and

her claim against Tulane under the same subsection, there is no

apparent reason to delay action on that claim. However and

unless good cause for reconsideration is filed by Friday February

18, 2022, explaining why the foregoing analysis of the Section

504 claim should not lead to its dismissal, the instant dismissal

order will be effective on the latter date.

Lastly, it would be fruitless to entertain further amendments

to the complaint. Despite opportunities to address noted

deficiencies at the state and federal levels, plaintiff merely

restates the same allegations and general legal conclusions.

As found by the state court and now here, with additional

findings relative to claims sounding in federal law, the instant

action is dismissed subject to reconsideration as noted above.

New Orleans, Louisiana this 7th day of February, 2022

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE