Alonso v. Administrators of the Tulane Educational Fund

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ALBERTO R. ALONSO * CIVIL ACTION NO. 22-4661

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VERSUS * DIVISION: 1

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THE ADMINISTRATORS OF THE * MAGISTRATE JUDGE

TULANE EDUCATIONAL FUND AS * JANIS VAN MEERVELD

PRINCIPAL OF THE NON-JUDICIAL *

AGENCY AND EMPLOYEES OF *

TULANE UNIVERSITY POLICE *

DEPARTMENT *

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ORDER AND REASONS

Before the Court is the Motion to Dismiss filed by defendant the Administrators of the

Tulane Education Fund (“Tulane”). (Rec. Doc. 7). Tulane seeks dismissal of some, but not all of

plaintiff’s claims. Because plaintiff has failed to state a claim under the Louisiana Constitution,

Article I, §3; Louisiana Civil Code articles 2315, 2316, 2371, and 2320; and Louisiana’s

Whistleblower Statute, La. Rev. Stat. § 23:967, Tulane’s motion is GRANTED and the

aforementioned claims are dismissed with prejudice.

Background

Plaintiff Alberto Alonso is a Hispanic male who worked as a full time police officer for the

Tulane University Police Department (“TUPD”) since 1991. On September 23, 2021, he observed

and heard Mason Spong—a white male—state that was going to “get his whip” and “crack his

whip” during a TUPD meeting. Alonso believed the body language and demeaning comments

were made to intimidate minorities, including himself, because of Spong’s friendship and

influence with Chief Kirk Bouyelas. Alonso reported Spong’s comments to Deputy Chief Jarrod

Sullivan. On October 4, 2021, Damon Bell reported to Alonso that Captain Gerald Young

exhibited favoritism and may have violated policy by transferring a trainee “from one Field

Training Officer to another” even though the trainee was not POST certified as required.1 Alonso

alleges that he notified Sullivan of “the possible violation of state law on the same date.” (Rec.

Doc. 1-1, at 3). On or about October 6, 2021, Alonso spoke to Dawn Broussard at Tulane’s Office

of Institutional Equity about Bouyelas’ pattern and practice of hiring and protecting from

accountability his personal friends and quickly promoting them over more qualified senior officers,

along with acts of disparate treatment, violations of best practices and TUPD policies, and

unethical business practices.

Meanwhile, TUPD initiated three investigations into Alonso. The first arose out of alleged

misconduct on September 30, 2021, as reported by an anonymous complaint regarding alleged

aggression by a TUPD officer in civilian clothes towards Tulane students in line to enter a football

game. The second investigation was initiated on October 6, 2021, when TUPD received an undated

complaint via mail that a male driving a TUPD marked pickup truck was speeding on the West

Bank expressway with a female and a dog as passengers. A separate investigation related to the

September 30, 2021, incident was then initiated because the complaint alleged that Alonso was

not wearing a TUPD uniform while executing police duties. According to Tulane, the

investigations resulted in findings that Alonso be held responsible for violating certain TUPD

General Orders and Rules.

Alonso maintains that in the investigations and review of his performance, he was held to

a higher standard than his white counterparts. He alleges that Sullivan told him as much during the

investigation.

On November 4, 2021, Alonso suffered an injury while on the job. He alleges that Bouyelas

refused to allow him to continue working light duty and ordered him to use his vacation and sick

1 POST is an acronym that stands for Peace Officer Standards and Training Council.

benefits by applying for leave under the Family Medical Leave Act. Alonso requested that the

hearing date related to the investigations be postponed until he made a full recovery so he would

be able to defend the charges. He alleges that Bouyelas ordered him to provide a medical certificate

to establish why he could not participate in a Zoom hearing on or before November 24, 2021. But

Alonso appealed this order to the Office of Human Resources as an act of discrimination and

harassment and reports that the order was overruled. Alonso alleges that because he feared

Bouyelas’ actions would continue with the goal of precluding him from continuing his law

enforcement career, he accepted long term disability benefits and transitioned off Tulane’s payroll,

effectively ending his employment on February 3, 2022.

Alonso filed this lawsuit in state court alleging defendants have violated the Louisiana

Constitution, Article I, §3; federal employment discrimination laws, 42 U.S.C. § 2000e et seq.; the

Americans with Disabilities Act, 42 U.S.C. § 12112, et seq.; Louisiana’s Whistleblower Statute,

La. Rev. Stat. § 23:967; and that defendants are liable for negligence and respondeat superior under

La. Civ. Code art. 2315 and 2320. Defendants removed to this Court on November 28, 2022. The

parties have consented to proceed before the magistrate judge pursuant to 28 U.S.C. § 636(c).

In the present Motion to Dismiss, Tulane argues that Alonso’s constitutional claim must

be dismissed because such a claim cannot be stated against a private entity. It argues that Alonso’s

tort claims under Louisiana Civil Code article 2315 and 2320 must be dismissed because these

laws do not apply to employment discrimination claims. Finally, it argues that Alonso’s

whistleblower claims must be dismissed because the statute should not apply to a private

educational non-profit entity or, in the alternative, because Alonso has not sufficiently alleged a

violation of state law by Tulane.

Alonso opposes the motion. He argues that Tulane’s proposed interpretation of the

whistleblower statute to exclude private educational non-profit entities from the definition of

“employer” has been rejected by the Fifth Circuit. He further argues that his complaint describes

the felony crime of Injuring Public Records, La. Rev. Stat. § 14:132, because Tulane must certify

that its police officers are POST certified on an annual basis. Thus, he appears to argue that he

triggered the Whistleblower statute when he notified Sullivan that Bell had reported Young had

transferred a trainee who was not POST certified. Alonso does not address Tulane’s argument that

employment discrimination cannot form the basis of a negligence claim, but instead he insists that

he has stated a claim for negligence because he has alleged that Tulane intentionally ignored his

plea for protection and relief. He seems to argue that Tulane is not entitled to immunity under

Louisiana’s Workers’ Compensation statute. Alonso does not address Tulane’s argument on his

constitutional claim.

Law and Analysis

1. Rule 12(b)(6) Standard

“[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement

to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and

money by the parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007) (quotation marks and ellipsis omitted). Accordingly, Rule 12(b)(6) allows a defendant to

move for expeditious dismissal when a plaintiff fails to state a claim upon which relief can be

granted. In ruling on a 12(b)(6) motion, “[t]he court accepts all well-pleaded facts as true, viewing

them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litigation, 495 F.3d

191, 205 (5th Cir. 2007) (internal quotation marks omitted). Further, “[t]o survive a Rule

12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is

plausible on its face. Factual allegations must be enough to raise a right to relief above the

speculative level.” Id. (citation, footnote, and quotation marks omitted). On that point, the United

States Supreme Court has explained:

A claim has facial plausibility when the plaintiff pleads factual content that allows

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

misconduct alleged. The plausibility standard is not akin to a “probability

requirement,” but it asks for more than a sheer possibility that a defendant has acted

unlawfully. Where a complaint pleads facts that are merely consistent with a

defendant's liability, it stops short of the line between possibility and plausibility of

entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted).

2. Article I, Section 3 of the Louisiana Constitution

Article I, Section 3 of the Louisiana Constitution provides that:

No person shall be denied the equal protection of the laws. No law shall

discriminate against a person because of race or religious ideas, beliefs, or

affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate

against a person because of birth, age, sex, culture, physical condition, or political

ideas or affiliations.

La. Const. Ann. art. I, § 3. This provision concerns discriminatory laws and “does not create a

cause of action against a private individual or a company.” Smolensky v. Gen. Elec. Co., No. CIV.

A. 99-1849, 2000 WL 341031, at *9 (E.D. La. Mar. 30, 2000); Hornsby v. Enter. Transp. Co., 987

F. Supp. 512, 514–15 (M.D. La. 1997). Alonso does not dispute that he cannot state a claim against

a private entity like Tulane under Article I, Section 3 of the Louisiana Constitution. Accordingly

his claim under Article I, Section 3 of the Louisiana Constitution shall be dismissed with prejudice.

3. Louisiana Civil Code Article 2315

Louisiana Civil Code article 2315 provides that “[e]very act whatever of man that causes

damage to another obliges him by whose fault it happened to repair it.” La. Civ. Code art. 2315.

But this code article “does not protect against employment discrimination.” McCoy v. City of

Shreveport, 492 F.3d 551, 563 n. 34 (5th Cir. 2007). This is because the Louisiana Employment

Discrimination Law (“LEDL”) specifically addresses employment discrimination and when two

statutes conflict, the more specific must prevail. See Roberson-King v. Louisiana Workforce

Comm'n, Off. of Workforce Dev., 904 F.3d 377, 380 (5th Cir. 2018) (holding that the district court

properly dismissed plaintiff’s employment discrimination claims under article 2315 because such

a cause of action was inconsistent with the LEDL); see also Gluck v. Casino Am., Inc., 20 F. Supp.

2d 991, 994–95 (W.D. La. 1998). Courts have applied this rule even where a plaintiff cannot state

a claim under the LEDL. See Jackson v. Country Club of Louisiana, Inc., No. CV 20-452-SDD-

EWD, 2021 WL 261538, at *7 (M.D. La. Jan. 26, 2021).

Here, Alonso’s claims are for employment discrimination and are subject to the LEDL.

The fact that Alonso has decided not to file a claim under the LEDL and that he could not state a

claim against LEDL because non-profit entities are excluded from the LEDL definition of

employer2 does not change the conclusion that the legislature’s specific framework for

employment discrimination must prevail over the more general negligence cause of action in

article 2315.3 Just as the court in Jackson found that the plaintiff could not state a claim under

LEDL because the defendant was a nonprofit corporation that was not an “employer” for purposes

of the LEDL and found further that the plaintiff could not state a claim for employment

discrimination under 2315 because the LEDL supersedes article 2315 for such claims, the court

here finds that Alonso cannot state a claim under article 2315 even though he is also unable to state

2 See La. Rev. Stat. § 23:302(2)(b) (providing that the LEDL does not apply to “[e]mployment of an individual by a

private educational or religious institution or any nonprofit corporation . . . .”).

3 Alonso argues that an employer’s immunity from tort claims under the Workers’ Compensation statute does not

extend to intentional torts. Workers’ Compensation immunity is not at issue in this lawsuit and this argument is

inapposite.

a claim under the LEDL. Alonso has cited no case with a contrary conclusion.4 Accordingly his

article 2315 claims shall be dismissed with prejudice.

4. Louisiana Civil Code Article 2320

Louisiana Civil Code article 2320 provides that an employer is “answerable for the damage

occasioned” by its employees “in the exercise of the functions in which they are employed.”

La. Civ. Code art. 2320. This rule “ is applicable to claims based on general tort law.” Levisee

v. Excel Scaffolding & Leasing Corp., 2020-1013 (La. App. 1 Cir. 4/26/21), 2021 WL

1609810, *16 n. 7 (unpublished). Just as the more specific provisions of the LEDL supersede

a claim for negligence under article 2315, the LEDL must supersede any claim for an

employer’s liability for employment discrimination under article 2320. Accordingly, the Court

finds that Alonso cannot state a claim under article 2320 and these claims shall be dismissed

with prejudice.5

5. Whistleblower Claims

To state a claim under Louisiana’s whistleblower statute, a plaintiff must show that

(1) [Defendant] violated the law through a prohibited workplace act or practice; (2)

she advised [Defendant] of the violation; (3) she threatened to disclose [or

disclosed] the practice; and (4) she was fired as a result of her refusal to participate

in the unlawful practice or threat to disclose the practice.

Kell v. Iberville Bank, 352 F. Supp. 3d 650, 661–62 (E.D. La. 2018) (quoting Hale v. Touro

Infirmary, 2004-0003 (La. App. 4 Cir. 11/3/04), 886 So. 2d 1210, 1216) (alteration in original).

4 Alonso cites Martin v. Thomas, where the Louisiana Supreme Court addressed the issue of whether fault for a tort

committed by an employee must be assessed as to both the employer and employee under Louisiana’s comparative

fault regime even where the employer admits that the employee was acting in the course and scope of employment

such that the employer will be liable for the employee’s fault. 2021-01490 (La. 6/1/22), 346 So. 3d 238, 242. That

issue and the court’s reasoning does not bear on the issues before this Court.

5 This reasoning applies equally to any purported tort claim under Louisiana Civil Code articles 2316 and 2317, which

Alonso cites in his opposition memorandum but does not reference in his Petition.

Plaintiff must establish that the defendant “committed an actual violation of [Louisiana] law.”

Herster v. Bd. of Supervisors of Louisiana State Univ., 887 F.3d 177, 187 (5th Cir. 2018) (quoting

Wilson v. Tregre, 787 F.3d 322, 326 (5th Cir. 2015)) (emphasis and alteration in original); Ware

v. CLECO Power LLC, 90 F. App'x 705, 709 (5th Cir. 2004) (“Nowhere in his amended complaint

does [plaintiff] indicate which state law, if any, was violated by [defendant] and therefore he fails

to state a claim under La. Rev. Stat. § 23:967”). For example, in Genella v. Renaissance Media,

the plaintiff alleged that “petitioner, as supervisor of company vehicles, reported one of his

supervisors for using a company credit card to repair his private vehicle, which use violated

company policy as well as state law.” 115 F. App'x 650, 652 (5th Cir. 2004) (unpublished). But

the plaintiff did not indicate which state law was violated and the district court dismissed the claim

because plaintiff did not “not contend that [defendant] broke the law, rather that [defendant] was

a victim of its employee's actions.” Id. The Fifth Circuit affirmed. Id.

Here, Alonso alleges merely that he notified Sullivan of a “possible violation of state law”

arising out of Young exhibiting favoritism and transferring a trainee from one Field Training

Officer to another even though the trainee was not POST certified. His petition does not identify

any law that TUPD violated. It therefore fails to satisfy the requirement that an actual violation of

Louisiana law be alleged.

In his opposition memorandum, Alonso attempts to explain that TUPD may have violated

the felony crime of Injuring Public Records under La. Rev. Stat § 14:132. This statute

criminalizes—among other things—the falsification of any record or document “filed or deposited,

by authority of law, in any public office or with any public officer.” La. Rev. Stat § 14:132. Alonso

further explains that TUPD must certify the required training of officers who will patrol Tulane

campuses in compliance with the Louisiana POST.

Importantly, Alonso’s argument in opposition does not remedy the deficiency in the

Petition. Moreover, even if the Court allowed Alonso to amend his complaint to reference this

statute, the Petition still would not allege a violation of state law by TUPD. Assuming that the

trainee was required to be POST certified at the time of the alleged transfer, Alonso has alleged no

facts to support finding that TUPD falsified any required certifications by, for example, reporting

that the trainee was indeed certified. Moreover, there are no factual allegations in either the Petition

or Alonso’s opposition to support concluding that Alonso threatened to or did disclose TUPD’s

purported violation of the Injuring Public Records law. Accordingly, the Court finds that Alonso

has failed to state a claim under Louisiana’s Whistleblower statute and this claim shall be

dismissed with prejudice.

The Court notes that TUPD raises the alternative argument that the Whistleblower statute

is inapplicable because Tulane is a non-profit educational institution that is exempt under the

LEDL and courts have held that the definition of “employer”6 in the LEDL applies to the

Whistleblower statute. E.g., Heintz v. Lawson, No. CV 18-366, 2019 WL 127057, at *10 (E.D.

La. Jan. 7, 2019) (“Although the statute itself does not define ‘employer,’ courts have consistently

applied the definition of ‘employer’ as set forth in La. Rev. Stat. § 23:302, Louisiana's general

employment discrimination statute.”). This argument seems to be precluded by the Fifth Circuit’s

decision in Sanders v. Christwood, where the court of appeals observed that even if the LEDL

definition of employer applies to the Whistleblower statute, “nonprofits are employers; the statute

6 Under the LEDL, “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.” La. Rev. Stat. § 23:302(2). The definition then provides that “[t]he

provisions of this Chapter shall only apply to an employer who employs twenty or more employees” and further that

“[t]his Chapter shall not apply to” the employment of an individual by a parent, spouse, or child, employment in the

domestic service of the employer, employment of an individual by a private educational or religious institution or

nonprofit corporation, or employment by a religious school. Id.

only says that they are not subject to the LEDL.” 970 F.3d 558, 566 (Sth Cir. 2020). The court of

appeals also found that although “anti-discrimination statutes and whistleblower statutes concern

similar subject matter,” they “do not concern the same subject matter, and similarity alone is not

enough to justify incorporating all of the LEDL's exceptions and their underlying policy

judgments.” Id. This reasoning would seem to apply to Tulane—which is excluded from liability

under the LEDL but nonetheless satisfies the definition of “employer” under that statute.

Nonetheless, because the Court has found that Alonso has failed to state a Whistleblower claim,

the Court does not resolve this issue.

Conclusion

For the foregoing reasons, the Court finds that Alonso has failed to state a claim under the

Louisiana Constitution, Article I, §3; Louisiana Civil Code articles 2315, 2316, 2371, and 2320;

and Louisiana’s Whistleblower Statute, La. Rev. Stat. § 23:967. Accordingly, TUPD’s partial

Motion to Dismiss is GRANTED and Alonso’s claims under the Louisiana Constitution, Article

I, §3; Louisiana Civil Code articles 2315, 2316, 2371, and 2320; and Louisiana’s Whistleblower

Statute, La. Rev. Stat. § 23:967, are dismissed with prejudice.

New Orleans, Louisiana, this 9th day of January, 2023.

C \aatis Vaw loo, wolf

Janis van Meerveld

United States Magistrate Judge

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