Burchfield v. South Louisiana Medical Associates, A Professional Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SYDNEY BURCHFIELD CIVIL ACTION

VERSUS NO. 23-1501

SOUTH LOUISIANA MEDICAL SECTION “R”

ASSOCIATES, A PROFESSIONAL

CORPORATION

ORDER AND REASONS

Before the Court is defendant’s motion to dismiss plaintiff’s Title VII

and Louisiana Employment Discrimination Law claims.1 Plaintiff opposes

the motion.2 For the following reasons, the Court grants in part and denies

in part the motion.

I. BACKGROUND

Plaintiff Sydney Burchfield brought this action against her former

employer, South Louisiana Medical Associates, a Professional Corporation

(“SLMA”).3 Burchfield worked as a nurse practitioner for SLMA from

December 2014 until May 6, 2021.4 SLMA provides medical staffing for the

1 R. Doc. 10.

2 R. Doc. 11.

3 R. Doc. 1.

4 Id. ¶ 7.

Leonard J. Chabert Medical Center (“Chabert”), an Ochsner Health facility

in Houma, Louisiana.5 Burchfield alleges that on the night of January 18,

2021, she evaluated and treated a patient in Chabert’s Emergency

Department (“ED”).6 Burchfield maintains that her care and treatment of

the patient were not only proper and legal, but also complied with all SLMA

and Chabert policies.7 The patient was also treated by three male physicians

during the January shift, including Dr. Eric Brooks, Burchfield’s husband.8

The patient passed away seven days later while in the Intensive Care Unit.9

Burchfield alleges that three male physicians—including Dr.

Falterman, Burchfield’s immediate supervisor—made false and defamatory

statements about her, her care of the patient, and the patient’s subsequent

death.10 These statements were allegedly made: to a Department of Health

and Human Services interviewer; in the medical record; to each other; and

to the patient’s mother.11

5 Id. ¶ 8.

6 Id. ¶¶ 9, 14.

7 Id. ¶ 17.

8 Id. ¶ 10-12 & footnote 1.

9 Id. ¶ 13.

10 Id. ¶ 15.

11 Id.

A medical review panel was eventually formed after the patient’s death,

in which Burchfield, Dr. Brooks, and Chabert were listed as named parties.12

Effective as of March 1, 2021, Burchfield was placed on paid administrative

leave, allegedly without explanation.13 Burchfield asserts that the three male

physicians involved in the treatment of the patient during the January shift

were not placed on leave.14 While on leave, Burchfield contends that the

Chabert Medical Executive Committee notified her that, upon her return to

work, she would retain the same work privileges but would be subject to a

Focused Professional Practice Evaluation.15 Thereafter, Burchfield allegedly

spoke with Dr. Falterman who informed her that, contrary to that

notification, the Medical Executive Committee recommended that her

privileges be significantly and permanently restricted.16 This included

restrictions on her ability to see Level 1 or 2 patients on the Emergency

Severity Index or Level 3 patients deemed “sick,” to perform critical care on

patients, and to perform critical care procedures.17 Burchfield contends that

12 Id. ¶ 16.

13 Id. ¶ 22.

14 Id. ¶ 21.

15 Id. ¶ 26.

16 Id. ¶ 27.

17 Id.

she later communicated with the Medical Executive Committee and was told

that her privileges had not been restricted.18

Burchfield further alleges that, upon returning to work, she was

assigned to less desirable shifts that resulted in reduced compensation.

According to Burchfield, she historically requested and was assigned to work

overnight shifts Monday through Friday, which paid $4.00 more per hour

than day shifts.19 Burchfield contends that she made clear to SLMA that she

wished to continue working the weeknight shifts when she returned from

administrative leave, but SLMA ultimately assigned her “objectively less-

desirable” day shifts, “inconsistent with her historic known preference of

working weeknight shifts.”20 Burchfield states that the weeknight shifts were

instead filled by a male physician assistant with less experience and less

seniority.21

Additionally, Burchfield alleges that Dr. Falterman prevented her on

one occasion from changing shifts with another employee.22 Burchfield

contends that the regular practice of Chabert ED employees is to swap shifts

with one another without advance notice, as long as they confirm the changes

18 Id. ¶ 30.

19 Id. ¶¶ 31-33.

20 Id. ¶ 34-35.

21 Id. ¶ 37.

22 Id. ¶¶ 41-42.

on a master calendar.23 Burchfield also states that this practice was

confirmed in an email memorandum issued by Dr. Falterman, in which he

allegedly stated that shift swapping is permitted if the employees let him

know “in real time” of the change and note the change on the calendar.24

Burchfield allegedly notified Dr. Falterman on May 1, 2021, via text message

that she planned to swap shifts with a coworker, and that she had made the

appropriate changes to the master calendar.25 Dr. Falterman allegedly

refused the request, which Burchfield contends contradicted SLMA’s historic

policy allowing for shift swapping.26

Finally, Burchfield alleges that Dr. Falterman told an attending

physician scheduled to work with Burchfield to watch her work closely and

to take patients from her or send her home if needed.27 Based upon this

interaction, as well as Dr. Falterman’s false statement that her privileges had

been restricted, SLMA’s assignment of Burchfield to day shifts with reduced

pay, and Dr. Falterman’s refusal to allow her to swap shifts with another

employee, Burchfield alleges that she believed that her job was in jeopardy

and that SLMA was looking for reasons to terminate her. Thereafter, on May

23 Id. ¶¶ 38-40.

24 Id. ¶¶ 39-40.

25 Id. ¶ 41.

26 Id. ¶ 42.

27 Id. ¶ 43.

6, 2021, Burchfield tendered her resignation to SLMA.28 Burchfield contends

that her resignation constituted a constructive discharge.29 She further

alleges that the resignation was a necessary precaution to avoid the

anticipated termination and revocation of her privileges, which would have

affected her professional reputation and record and potentially her state

licensure.30

Following her resignation, Burchfield filed a charge of discrimination

against SLMA with the United States Equal Employment Opportunity

Commission (“EEOC”) on October 26, 2021.31 The charge proceeded to

mediation, which was ultimately unsuccessful.32 On February 9, 2023, the

EEOC terminated the processing of her charge and issued a notice of right to

sue.33

On May 4, 2023, Burchfield filed this action against SLMA alleging

claims under Title VII and the Louisiana Employment Discrimination Law

(“LEDL”) for gender-based discrimination, harassment and hostile work

environment, and retaliation. SLMA now moves to dismiss Burchfield’s

28 Id. ¶ 46.

29 Id.

30 Id. ¶¶ 47-48.

31 Id. ¶ 49.

32 Id. ¶¶ 50-51.

33 Id. ¶ 52.

complaint.34 SLMA contends that the complaint fails to state a claim under

Title VII and LEDL, and that the LEDL claims are time-barred under

Louisiana’s one-year prescription period.35 Burchfield contends that her

complaint sufficiently states claims to survive the motion to dismiss stage or,

in the alternative, that she should be granted leave to amend her pleading.36

The Court considers the parties’ arguments below.

II. LEGAL ANALYSIS

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts to “state a claim to 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, 547 (2007)), and “that, if true, ‘raise a right to relief above the

speculative level.’” Franklin v. Regions Bank, 976 F.3d 443, 447 (5th Cir.

2020) (quoting Twombly, 550 U.S. at 555). 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.”

Iqbal, 556 U.S. at 678. The Court must accept all well-pleaded facts as true

and must draw all reasonable inferences in favor of the plaintiff. Lormand

34 R. Doc. 10.

35 R. Docs. 10-1 & 17.

36 R. Doc. 11.

v. U.S. Unwired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But the Court

is not bound to accept as true legal conclusions couched as factual

allegations. Iqbal, 556 U.S. at 678.

A. Title VII of the Civil Rights Act of 1964

1. Sex Discrimination

Section 703(a) of Title VII makes it unlawful for employers to

discriminate “against any individual with respect to [her] compensation,

terms, conditions, or privileges of employment because of such individual’s

. . . sex.” 42 U.S.C. § 2000e-2(a)(1). Burchfield asserts a disparate-treatment

claim under Title VII, i.e., that she was subject to disparate treatment

because of her sex.37 To plead a disparate-treatment claim under Title VII,

Burchfield “must allege facts plausibly showing ‘(1) an adverse employment

action, (2) taken against [her] because of her protected status.’”38 Hamilton

37 R. Doc. 1 ¶¶ 55, 61.

38 The Court notes that there are four prima facie elements of a disparate-

treatment claim under Title VII: (1) that plaintiff is a member of a

protected class; (2) that she was qualified for the position at issue;

(3) that she suffered an adverse employment action by the defendant;

and (4) that she was replaced by someone outside her protected class

or was treated less favorably than other similarly situated employees

outside her protected class because of her protected status. Paske v.

Fitzgerald, 785 F.3d 977, 985 (5th Cir. 2015) (quoting Lee v. Kan. City

S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)); Haire v. Bd. of Sup’rs of

La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013)

v. Dallas Cnty., No. 21-10133, 2023 WL 5316716, at *6 (5th Cir. Aug. 18,

2023) (en banc) (quoting Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d

762, 767 (5th Cir. 2019)).

An adverse employment action is one that affects a “term, condition,

or privilege of employment.” Id. at *5 (quoting Hishon v. King & Spalding,

467 U.S. 69, 77 (1984) (internal quotation marks omitted)). Until recently,

Fifth Circuit precedent limited the scope of adverse employment actions to

“ultimate employment decisions such as hiring, granting leave, discharging,

promoting, or compensating.” Id. at *3 (quoting Welsh v. Fort Bend Ind.

(citing Fahim v. Marriott Hotel Servs., 551 F.3d 344, 350 (5th Cir.

2008)). These elements form the McDonnell Douglas framework

established by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). A plaintiff who builds her discrimination

claims on circumstantial evidence must create a presumption of

discrimination by establishing these four prima facie elements under

the McDonnell Douglas framework. Cicalese v. Univ. of Tex. Med.

Branch, 924 F.3d 762, 766 (5th Cir. 2019). But on a motion to dismiss,

a plaintiff need only “plead sufficient facts on all of the ultimate

elements of a disparate treatment claim to make [her] case plausible.”

Id. (emphasis in original) (quoting Chhim v. Univ. of Tex. at Austin,

836 F.3d 467, 470 (5th Cir. 2016) (internal quotation marks omitted)).

Thus, to survive the motion to dismiss, Burchfield need only plausibly

allege (1) an adverse employment action by SLMA (2) taken against her

because of her sex. Nevertheless, the Fifth Circuit has recognized that

it “can be ‘helpful to reference’ [the McDonnell Douglas] framework

when the court is determining whether a plaintiff has plausibly alleged

the ultimate elements of the disparate treatment claim.” Id. at 767

(citing Chhim, 836 F.3d at 470-71).

Sch. Dist., 941 F.3d 818, 824 (5th Cir. 2019) (internal quotation marks

omitted)). Under this standard, employment actions that did not affect “job

duties, compensation, or benefits” were not considered adverse employment

actions. Welsh, 941 F.3d at 824 (quoting Pegram v. Honeywell, Inc., 361

F.3d 272, 282 (5th Cir. 2004) (internal quotation marks omitted)).

But in Hamilton v. Dallas County, the Fifth Circuit sitting en banc

recently rejected its “ultimate-employment-decision test” in favor of a less

restrictive standard. 2023 WL 5316716, at *4. Under the Hamilton

standard, “a Title VII plaintiff may recover damages even for ‘discrimination

in the terms, conditions, or privileges of employment’ that ‘did not involve a

discharge,’ ‘loss of pay,’ or other ‘concrete effect on [his or her] employment

status.’” Id. (alteration in original) (quoting Landgraf v. USI Film Prod., 511

U.S. 244, 254 (1994)). The court reached this conclusion based upon the

language of Section 703(a)(1), stating:

To be sure, the statute prohibits discrimination in ultimate

employment decisions—“hir[ing],” “refus[ing] to hire,”

“discharg[ing],” and “compensation”—but it also makes it

unlawful for an employer “otherwise to discriminate against” an

employee “with respect to [her] terms, conditions, or privileges

of employment.”

Our ultimate-employment-decision test ignores this key

language. . . . Restricting liability under the statute to “ultimate

employment decisions such as hiring, granting leave,

discharging, promoting, or compensating” renders the statute’s

catchall provision all but superfluous. This we cannot do.

Id. at *4-5 (alterations and emphasis in original) (footnotes omitted).

With this framework in mind, the Fifth Circuit has made clear that to

satisfy the “adverse employment action” requirement, “a plaintiff need only

allege facts plausibly showing discrimination in hiring, firing, compensation,

or in the ‘terms, conditions, or privileges’ of his or her employment.” Id. at

*6 (quoting 42 U.S.C. § 2000e-2(a)(1)) (citing Hishon, 467 U.S. at 77).

Although the criteria for an adverse employment action are broad, the Fifth

Circuit stated that Title VII “does not permit liability for de minimis

workplace trifles.” Id. at *7 (citations omitted).

Next, Burchfield must plausibly allege facts suggesting “any adverse

actions taken because of” her sex. Cicalese, 924 F.3d at 767 (emphasis in

original). While Burchfield need not “provide a detailed statistical analysis

at the pleading stage,” her allegations “must demonstrate some causal

relationship — some ‘because’ — between [her sex] and the adverse

employment action.” Williams v. La. ex rel. Dep’t of Pub. Safety & Corr., No.

22-30385, 2023 WL 2366980, at *2 (5th Cir. Mar. 6, 2023). To do so,

Burchfield’s complaint must contain facts, either direct or circumstantial,

suggesting that SMLA’s actions were based on her sex or that SMLA treated

“similarly situated employees” of a different sex more favorably. See Raj v.

La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (holding that district court

properly dismissed discrimination claims when plaintiff’s “complaint and

speculation did not allege any facts, direct or circumstantial, that would

suggest [defendant’s] actions were based on [plaintiff’s] race or national

origin or that [defendant] treated similarly situated employees of other races

or national origin more favorably”).

Burchfield’s complaint alleges several employment actions that she

contends amount to sex discrimination based on disparate treatment,

including: (1) SMLA’s placing her on paid administrative leave without

explanation, (2) Dr. Falterman advising her that her privileges and job

responsibilities would be drastically reduced, (3) SMLA’s assigning her to

less desirable shifts resulting in reduced pay, and (4) SMLA’s constructively

discharging her.39 The Court will evaluate each disparate treatment claim in

turn.

i. Paid administrative leave

Burchfield contends that SLMA’s decision to place her, and none of the

male physicians, on paid administrative leave following the January shift

constitutes a discriminatory adverse employment action. But Burchfield

fails to plead facts plausibly showing that this adversely affected the

39 R. Doc. 1 ¶¶ 55, 60.

“compensation, terms, conditions, or privileges of [her] employment.” 42

U.S.C. § 2000e-2(a)(1). Nowhere in the complaint does Burchfield allege

that she lost pay or benefits while on leave. Nor does she allege that her

placement on temporary paid leave affected a term or condition of her

employment.

The Fifth Circuit has held that an employer’s decision to place an

employee on paid leave, whether administrative or sick, by itself does not

constitute an adverse employment action. See Hardison v. Skinner, No. 20-

30643, 2022 WL 2668514, at *2 (5th Cir. July 11, 2022) (per curiam)

(“[P]lacement on paid administrative leave by itself [ ] does not constitute an

adverse employment action.”); Stewart v. Miss. Transp. Comm’n, 586 F.3d

321, 332 (5th Cir. 2009) (holding that placement on paid administrative

leave for three weeks, without other adverse consequences, was not an

adverse employment action); McCoy v. City of Shreveport, 492 F.3d 551, 559

(5th Cir. 2007) (“[T]he district court properly held that placing [plaintiff] on

paid leave—whether administrative or sick—was not an adverse employment

action.”); Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000) (holding

that police officer placed on paid administrative leave did not suffer an

adverse employment action)). This is consistent with precedent in other

circuits. See, e.g., Brown v. Austin, 13 F.4th 1079, 1091-92 (10th Cir. 2021)

(finding no adverse employment action based on paid administrative leave

and reprimand letter where plaintiff “lost no pay or benefits from these

events”); Lincoln v. Maketa, 880 F.3d 533, 542 (10th Cir. 2018) (“[W]e do

not regard placement on paid administrative leave as a clearly established

adverse employment action.”); Jones v. Se. Pa. Transp. Auth., 796 F.3d 323,

326 (3d Cir. 2015) (“A paid suspension pending an investigation of an

employee’s alleged wrongdoing does not fall under any of the forms of

adverse action mentioned by Title VII’s substantive provision.”); Joseph v.

Leavitt, 465 F.3d 87, 91 (2d Cir. 2006) (“[A]dministrative leave with pay

during the pendency of an investigation does not, without more, constitute

an adverse employment action.”); Nichols v. S. Ill. Univ.-Edwardsville, 510

F.3d 772, 787 (7th Cir. 2007) (holding placement on paid administrative

leave for three months was not an adverse employment action); Peltier v.

United States, 388 F.3d 984, 988 (6th Cir. 2004) (finding no adverse

employment action when placed on paid administrative leave pending the

outcome of an investigation, without a change in position or benefits).

Without more, Burchfield has not made a sufficient allegation of an

adverse employment action based on her paid administrative leave.

Additionally, Burchfield has failed to sufficiently plead facts

supporting the second element of her disparate-treatment claim: that she

was placed on administrative leave because of her sex. See Hamilton, 2023

WL 5316716, at *6. Burchfield’s sole sex-based allegation supporting this

claim is that, unlike the male physicians she worked with during the January

shift, she alone was placed on paid administrative leave. But she does not

allege any direct facts of a discriminatory motive. Cf. Cicalese, 924 F.3d at

767-68 (finding plaintiffs’ direct factual allegations of derogatory remarks

about race sufficient to plead discriminatory motive). Nor does she plead

circumstantial facts supporting the inference that she was “similarly

situated” to these male physicians. See Coleman v. Kijakazi, No. 21-10399,

2023 WL 2660167, at *2 (5th Cir. Mar. 28, 2023) (“For a comparator to be

similarly situated, . . . they must be ‘under nearly identical circumstances.’”

(citation omitted)); Herster v. Bd. of Supervisors of La. State Univ., 887

F.3d 117, 185 (5th Cir. 2018) (“A variety of factors are considered when

determining whether a comparator is similarly situated, including job

responsibility, experience, and qualifications.”); Lee v. Kan. City S. Ry. Co.,

574 F.3d 253, 259-60 (5th Cir. 2009) (“[E]mployees who have different work

responsibilities . . . are not similarly situated.” (citation omitted)). It is true

that when a plaintiff plausibly alleges similarly situated comparators, the

Court must not scrutinize whether the comparators are “really ‘similarly

situated’” on a motion to dismiss. See Cicalese, 924 F.3d at 768 (involving

allegations that two professors of surgery and medicine at a university

medical center were similarly situated to other medical professors with

allegedly less experience). Nevertheless, the lack of any factual basis for this

element means that Burchfield’s claim does not survive a Rule 12(b)(6)

motion. See Raj, 714 F.3d at 331 (affirming district court’s dismissal of Title

VII disparate-treatment claim when plaintiff “did not allege any facts, direct

or circumstantial,” suggesting that his employer treated similarly situated

employees outside of his protected class more favorably).

Because Burchfield has failed to raise her “right to relief above the

speculative level,” this claim must be dismissed as a matter of law. Twombly,

550 U.S. at 555.

ii. Dr. Falterman’s statement

Dr. Falterman’s allegedly false statement informing Burchfield of

restrictions on her privileges and responsibilities likewise does not constitute

an adverse employment action. Burchfield fails to plausibly allege how

restrictions never imposed adversely affected the terms, conditions, and

privileges of her employment. Indeed, Burchfield herself states that Dr.

Falterman’s inaccurate representations were refuted by the Medical

Executive Committee before she returned to work.40 She specifically asserts

that, after speaking with Dr. Falterman, she “subsequently communicated

with the [Medical Executive Committee] and was told that her privileges had

not been restricted.”41 Dr. Falterman’s statement thus had no impact on a

term, condition, or privilege of Burchfield’s employment, and does not

constitute an adverse employment action. See Mattern v. Eastman Kodak

Co., 104 F.3d 702, 708 (5th Cir. 1997), abrogated on other grounds by

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (holding that

statements made to an employee did not constitute adverse employment

actions “because of their lack of consequence”).

Burchfield argues that she would have been effectively demoted had

her privileges been restricted as Dr. Falterman represented, and that this

demotion constitutes an ultimate employment decision.42 But this argument

fails because the alleged demotion did not come to fruition. Similar

allegations were rejected by the Seventh Circuit in Ajayi v. Aramark

Business Services, Inc., 336 F.3d 520 (7th Cir. 2003). In that case, the

plaintiff received a memorandum from her employer stating that her

position was being eliminated and that she would be demoted. Id. at 531.

40 Id. ¶ 30.

41 Id.

42 Id. ¶¶ 29, 57.

But the plaintiff admitted that the threatened demotion never actually

transpired. Id. The Seventh Circuit stated that “[a]n unfulfilled threat,

which results in no material harm, is not materially adverse.” Id. (citations

omitted). Thus, because the threatened demotion never happened, the court

held that this unfulfilled threat did not constitute an adverse employment

action. Id.

Burchfield also alleges that Dr. Falterman’s discussion with an

attending physician, telling him to watch Burchfield’s work closely and to

take patients from her or send her home if needed, demonstrates that he

“followed through on his conversation . . . by actually restricting her work

privileges.”43 This allegation likewise fails because Burchfield alleges that the

attending physician was upset by Dr. Falterman’s suggested supervision and

told Dr. Falterman that “he should take up any issues he had with

[Burchfield] directly with her.”44 Burchfield alleges no action taken by the

attending in response to Dr. Falterman’s remarks. Thus, Burchfield has not

plausibly alleged that Dr. Falterman’s suggestions resulted in actions

affecting the terms, conditions, or privileges of Burchfield’s employment.

See, e.g., Magiera v. City of Dallas, 389 F. App’x 433, 437-38 (5th Cir. 2010)

43 R. Doc. 11 at 6-7.

44 R. Doc. 1 ¶ 44.

(holding that an employer’s investigation of complaints with heightened

scrutiny was not an adverse employment decision); Muse v. Jazz Casino Co.,

LLC, No. 09-0066, 2010 WL 2545278, at *3 (E.D. La. June 16, 2010) (finding

no adverse employment decision when a supervisor’s close scrutiny of

plaintiff’s work did not “rise any higher than” a petty slight or

inconvenience).

Burchfield’s complaint is also devoid of any facts plausibly suggesting

that Dr. Falterman’s statements were made because of her sex, or that

“similarly situated employees” of a different sex were treated more favorably.

Without sufficient facts supporting either element of her Title VII disparate

treatment claim, this claim must be dismissed as a matter of law.

iii. Day shifts and loss of wages

Burchfield alleges that a discriminatory adverse employment action

occurred when SLMA assigned her to less desirable day shifts resulting in

reduced pay.45 Here, Burchfield plausibly alleges that this conduct amounts

to an adverse employment action. The Fifth Circuit has indicated that a shift

change may constitute an adverse employment decision under Title VII if it

also affects the employee’s “job duties, compensation, or benefits.” Cf.

45 Id. ¶¶ 31-37, 60.

Hernandez v. Sikorsky Support Servs., Inc., 495 F. App’x 435, 438 (5th Cir.

2021) (finding no adverse employment decision when plaintiff did not

demonstrate an objective loss in compensation, duties, or benefits when

denied her first choice on her shift-request documents). Burchfield alleges

that she was assigned to less desirable day shifts resulting a $4.00 per hour

reduction in compensation. Accepted as true, these allegations suffice to

plausibly allege an adverse employment action with respect to Burchfield’s

compensation.

This result is also supported by the Fifth Circuit’s recent decision in

Hamilton. 2023 WL 5316716, at *1-8. There, the court considered

allegations that the Dallas County Sheriff’s Department gave its detention

service officers two days off each week and permitted only men to select full

weekends off, while female officers could pick only two weekdays off or one

weekend day and one weekday off. Id. at *1. The court held that the plaintiffs

plausibly alleged an adverse employment action with respect to the terms,

conditions, and privileges of their employment. Id. In so concluding, the

Fifth Circuit expressed agreement with the Sixth Circuit’s decision in Threat

v. City of Cleveland, which held that a “shift schedule is a term of

employment” for Title VII purposes and that allegations of a sex-based

system to assign day and night shifts alleged discrimination in the terms,

conditions, and privileges of employment. Id. at *6 (citing and quoting

Threat v. City of Cleveland, 6 F.4th 672, 676-77 (6th Cir. 2021)). As the Fifth

Circuit reasoned, “[t]he days and hours that one works are quintessential

‘terms or conditions’ of one’s employment.” Id. Here, Burchfield’s complaint

clearly states that her shifts and pay were affected by SLMA’s scheduling

decisions. She has thus sufficiently pleaded facts supporting the first

element of this disparate-treatment claim.

Next, Burchfield must satisfy the second element: “whether [SLMA]

took the adverse employment action against [her] because of her protected

status.” Raj, 714 F.3d at 331 (emphasis in original) (quoting Kanida v. Gulf

Coast Med. Pers. LP, 363 F.3d 568, 576 (5th Cir. 2004) (internal quotation

marks omitted)). The discriminatory basis for Burchfield’s claim is that she

was assigned to the less desirable and less compensated day shifts, while a

male physician assistant with less experience and seniority was assigned to

work the night shifts.46 The Court finds that this allegation meets the

pleading standard. Burchfield has sufficiently alleged that SLMA treated her

less favorably with regard to shift scheduling than a similarly situated male

employee with allegedly fewer qualifications. See Cicalese, 924 F.3d at 768

(holding that plaintiffs plausibly alleged discriminatory motive by

46 Id. ¶ 37.

circumstantial factual allegations that similarly situated employees with

allegedly less experience were treated more favorably). Accepted as true,

these allegations are sufficient to state a disparate treatment claim under

Title VII at the pleading stage. SLMA’s motion is therefore denied as to this

claim.

iv. Constructive discharge

“A constructive discharge claim is based on a plaintiff’s actual

resignation, without which no discharge—constructive or otherwise—has

occurred.” Raj, 714 F.3d at 330. An employee may be constructively

discharged in several ways, including by:

(1) demotion; (2) reduction in salary; (3) reduction in job

responsibilities; (4) reassignment to menial or degrading work;

(5) badgering, harassment, or humiliation by the employer

calculated to encourage the employee’s resignation; or (6) offers

of early retirement that would make the employee worse off

whether the offer were accepted or not.

Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 481 (5th Cir. 2008).

“When the employee resigns in the face of such circumstances, Title VII

treats that resignation as tantamount to an actual discharge.” Green v.

Brennan, 578 U.S. 547, 555 (2016) (citing Pa. State Police v. Suders, 542 U.S.

129, 142-43 (2004)). Consideration of whether the plaintiff was

constructively discharged is to be viewed in the totality of the circumstances.

See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

To state a claim of constructive discharge, a plaintiff’s complaint must

include “two basic allegations: discriminatory conduct by the employer that

leads to resignation of the employee.” Green, 578 U.S. at 555. To satisfy the

first pleading requirement, Burchfield must plausibly “allege that working

conditions became ‘so intolerable that a reasonable person would have felt

compelled to resign.’” Mandujano v. City of Parr, 786 F. App’x 434, 437 (5th

Cir. 2019) (quoting Pa. State Police, 542 U.S. at 147); see also Green, 578

U.S. at 555 (“The constructive-discharge doctrine contemplates a situation

in which an employer discriminates against an employee to the point such

that his ‘working conditions become so intolerable that a reasonable person

in the employee’s position would have felt compelled to resign.’” (quoting Pa.

State Police, 542 U.S. at 141)). A constructive discharge claim “requires a

greater degree of harassment than that required by a hostile environment

claim.” Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001).

Discrimination or “[m]ere harassment, alone, is insufficient; rather, the

plaintiff must show ‘aggravating factors’ to justify departure.” Hockman v.

Westward Commc’ns, LLC, 407 F.3d 317, 331 (5th Cir. 2004); see also

Brown, 237 F.3d at 566 (“Discrimination, alone, without aggravating factors,

is insufficient for a claim of constructive discharge.”). Next, Burchfield must

allege that, as a result of the discriminatory conduct, she actually resigned.

See Green, 578 U.S. at 555.

Burchfield’s complaint states that she resigned on May 6, 2021, thus

satisfying the second pleading requirement. As for the first requirement, she

contends that her constructive discharge stemmed from: (1) Dr. Falterman’s

threatened demotion with restricted privileges; (2) the reduction in her pay

from the shift changes; (3) Dr. Falterman’s refusal to approve a shift swap

request despite the historic company policy permitting such changes; and

(4) the defamatory statements made by male SLMA employees, including

supervisors, about her and her work.47 Accepted as true, these allegations

are insufficient to support her constructive discharge claim.

As discussed,48 Dr. Falterman’s threatened “demotion” was just that—

an unfulfilled threat that had no genuine impact on Burchfield’s employment

or privileges. This conversation with Dr. Falterman does not rise to such an

extreme level that it may be classified as “harassment” intended to encourage

her resignation. See McElroy v. PHM Corp., 622 F. App’x 388, 390-92 (5th

Cir. 2015) (holding that a supervisor’s verbal threat to fire black employee

47 Id.

48 See supra Section III.A.1.ii.

did not constitute constructive discharge under Title VII because it did not

make working conditions so intolerable that a reasonable employee would

feel forced into involuntary resignation). Further, Burchfield makes no

allegation suggesting that Dr. Falterman’s statement was made on the basis

of her sex. See Green, 578 U.S. at 556 (holding that a constructive discharge

claim requires plaintiff to allege discriminatory conduct by the employer);

see also English v. Perdue, 777 F. App’x 94, 100 (5th Cir. 2019) (“That

another employee was treated better and given more opportunities does not

become actionable under federal law just because she was female. . . . More

is needed to raise [plaintiff’s] claims above a speculative level.”).

The complaint further alleges only one instance in which Burchfield

was denied the ability to change shifts with another employee. Again,

Burchfield makes no allegation that the shift-swap decision was based on her

sex. Moreover, this de minimis incident, together with Dr. Falterman’s

statement, do not create conditions so intolerable that a reasonable person

would have felt compelled to resign. See Judeh v. T-Mobile Cent. L.L.C., No.

22-1130, 2023 WL 246843, at *5 (E.D. La. Jan. 18, 2023) (dismissing

constructive discharge claims based on a “few, isolated instances of

harassment” that are not so intolerable that a reasonable person would feel

compelled to resign).

Burchfield’s allegations of defamatory statements by male doctors

likewise fail to plausibly allege conduct based on her sex. Burchfield alleges

that male supervisors and physicians “made false and defamatory statements

to third parties” about her, her care of the patient, and the patient’s death.49

Burchfield fails to allege what content of these statements or other facts

suggest that the statements were made based on her sex. Her only sex-based

allegation is that the speakers were men, and she was a woman. Statements

made by men about a woman, without more, are not enough to give rise to a

Title VII claim. See Green, 578 U.S. at 556. These allegations fail to meet

the constructive discharge standard.

This leaves Burchfield’s allegations of reduced pay associated with her

assignment to day shifts. Burchfield does not allege that she was

permanently assigned to day shifts, and it is apparent from the complaint

that she endured the shift change for less than one month because she

resigned on May 6 and was on leave until at least April 7. As such, the denial

of her preferred shifts and receipt of $4.00 less per hour for an unspecified

number of shifts over less than a month is not so severe and intolerable that

an objective, reasonable employee would be compelled to resign.

49 R. Doc. 1 ¶ 15.

Considering the totality of Burchfield’s allegations, and accepting those

allegations as true, the Court is unpersuaded that she sufficiently alleged

such extreme, discriminatory harassment that a reasonable employee would

have felt compelled to resign. See Plustache v. Harrison, No. 22-30110, 2023

WL 3197043, at *2 (5th Cir. May 2, 2023) (holding that district court did not

err in dismissing meritless constructive discharge claim when there was no

authority suggesting that plaintiff’s “allegations are of harassment so

extreme that a reasonable employee would have felt compelled to resign”).

Additionally, the Fifth Circuit has recognized that, “[i]n the constructive

discharge context, . . . ‘part of an employee’s obligation to be reasonable is

an obligation not to assume the worst, and not to jump to conclusions too

fast.’” Aryain, 534 F.3d at 481-82 (quoting Dornhecker v. Malibu Grand

Prix Corp., 828 F.2d 307, 310 (5th Cir. 1987)) (dismissing plaintiff’s

constructive discharge claim when plaintiff resigned “just a day or two” after

alleged negative treatment, which did not give the employer an adequate

opportunity to improve her situation). Here, Burchfield resigned on May 6,

2021—less than one month after she returned to work and nine days after

Dr. Falterman denied her shift-swap request. This further supports a finding

that the alleged conduct was not so “severe” to cause a reasonable employee

to resign. See Haley, 391 F.3d at 652 (noting that a reasonable employee

often should pursue less drastic options before choosing to leave her job).

The Court thus finds Burchfield’s constructive discharge claim is not facially

plausible, and the claim is dismissed.

2. Retaliation

Title VII makes it unlawful to discriminate against an employee who

has opposed an employment practice made unlawful by Title VII. 42 U.S.C.

§ 2000e-3(a). To state a retaliation claim, plaintiff must allege: “(1) that

[she] engaged in activity protected by Title VII, (2) that an adverse

employment action occurred, and (3) that a causal link existed between the

protected activity and the adverse action.” Raggs v. Miss. Power & Light

Co., 278 F.3d 463, 471 (5th Cir. 2002). “Although a plaintiff need not make

out a prima facie case of [retaliation] in order to survive a Rule 12(b)(6)

motion to dismiss for failure to state a claim,” the three prima-facie elements

have “some relevance at the motion-to-dismiss stage, because in order to

sufficiently state at Title VII-retaliation claim, a plaintiff must plead

sufficient facts on all of the ultimate elements to make her case plausible.”

Goings v. Lopinto, No. 22-2549, 2023 WL 2709826, at *9 (E.D. La. Mar. 30,

2023) (quoting Jenkins v. La. Workforce Comm’n, 713 F. App’x 242, 244 (5th

Cir. 2017) (internal quotation marks omitted)).

As to the first element, “[a]n employee has engaged in protected

activity when she has (1) ‘opposed any practice made an unlawful

employment practice’ by Title VII or (2) ‘made a charge, testified, assisted,

or participated in any manner in an investigation, proceeding, or hearing’

under Title VII.” Douglas v. DynMcDermott Petrol. Operations Co., 144

F.3d 364, 372 (5th Cir. 1998) (quoting 42 U.S.C. § 2000e-3(a)). “The first of

these is known as the ‘opposition clause;’ the second as the ‘participation

clause.’” EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016).

Under the opposition clause, a plaintiff need not allege that the complained-

of employment practice is actually unlawful; rather, she need only show that

she had “a reasonable belief that defendant had engaged in the unlawful

employment practices.” Payne v. McLemore’s Wholesale & Retail Stores,

654 F.2d 1130, 1137 (5th Cir. 1981); see also Rite Way Serv., 819 F.3d at 240

(affirming Payne’s “reasonable belief” standard). Thus, internally

complaining about an employment practice may constitute protected

activity, so long as the complainant “reasonably believed the employment

practice to be unlawful.” Rite Way Serv., 819 F.3d at 240; see also Rodriquez

v. Wal-Mart Stores, Inc., 540 F. App’x. 322, 328 (5th Cir. 2013) (“An

employee that files an internal complaint of discrimination engages in a

protected activity.” (citing Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 194

(5th Cir. 2001))).

Here, Burchfield alleges that she engaged in a protected activity

because she “raised concerns” with SLMA about her reduced work privileges

following her conversation with Dr. Falterman.50 The only specific

communication about Dr. Falterman’s statement alleged anywhere in the

complaint is that after her conversation with Dr. Falterman, Burchfield

“communicated with the [Chabert Medical Executive Committee] and was

told that her privileges had not been restricted.”51 Accepting as true that

Burchfield “raised concerns” about Dr. Falterman’s statement and

considering the alleged content of his statement, the Court finds that

Burchfield plausibly alleged that she opposed Dr. Falterman’s statement

about threatened reductions in her privileges.

Nevertheless, Burchfield’s opposition to Dr. Falterman’s statement

does not constitute a protected activity because she does not contend, and

the complaint does not allege, that she alerted the Committee or SLMA to

any belief that unlawful sex discrimination was at issue. See Brown v.

United Parcel Serv., Inc., 406 F. App’x 837, 840 (5th Cir. 2010) (per curiam)

50 Id. ¶ 65.

51 Id. ¶ 30.

(holding that, to satisfy the opposition clause requirement, “[m]agic words

are not required, but protected opposition must at least alert an employer to

the employee’s reasonable belief that unlawful discrimination is at issue”).

Only complaints about discrimination prohibited by Title VII, including

discrimination on the basis of sex, constitute protected activity for purposes

of a retaliation claim. See Brackens v. Stericycle, Inc., 829 F. App’x 17, 21

(5th Cir. 2020) (“Importantly, ‘Title VII protects an employee only from

retaliation for complaining about the types of discrimination it prohibits.’”

(quoting O’Daniel v. Indus. Serv. Sols., 922 F.3d 299, 307 (5th Cir. 2019)));

Davis v. Dallas Indep. Sch. Dist., 448 F. App’x 485, 493 (5th Cir. 2011) (“We

have consistently held that a vague complaint, without any reference to an

unlawful employment practice under Title VII, does not constitute protected

activity.”); see also Emerson v. Dart, 900 F.3d 469, 472 (7th Cir. 2018)

(holding that plaintiff’s formal personnel grievance, which alleged that

defendant improperly changed her shift assignments, was not protected

activity under Title VII’s antiretaliation provision because the grievance did

not claim that what happened to her was due to race, color, national origin,

sex, or religion). Burchfield states in her complaint that she raised concerns

with SLMA “regarding [the] restricted privileges” threatened by Dr.

Falterman.52 This factual allegation, without more, does not support the

inference that Burchfield opposed any form of sex discrimination.

Further, even if Burchfield subjectively believed that SLMA was

engaged in unlawful sex discrimination practices at the time she allegedly

raised her concerns, her belief “cannot be reasonable if it is settled law that

the conduct in question does not amount to an unlawful employment

practice.” Evans-Rhodes v. Nw. Diagnostic Clinic, P.A., No. 4:13-CV-01626,

2013 WL 5603003, at *4 (S.D. Tex. Oct. 11, 2013) (citing Wilson v. Delta

State Univ., 143 F. App’x 611, 613-14 (5th Cir. 2005)). As discussed,53 Dr.

Falterman’s statement had no consequential impact on Burchfield’s job

duties, compensation, or terms, conditions, or privileges of her employment;

thus, his conduct is not actionable under Title VII. See Mattern, 104 F.3d at

708 (holding that statements made to an employee did not constitute adverse

employment actions “because of their lack of consequence”).

Burchfield also fails to allege sufficient facts supporting the third

element of her retaliation claim. “To establish a causal link between the

protected activity and the adverse employment decision, the evidence must

demonstrate that the decision maker had knowledge of the protected

52 Id. ¶ 65.

53 See supra Section III.A.1.ii.

activity.” Tureaud v. Grambling State Univ., 294 F. App’x 909, 914-15 (5th

Cir. 2008) (citing Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999)).

Burchfield contends that SLMA took two adverse employment actions

against her when it assigned her to less-desirable day shifts with reduced

compensation and prohibited her from swapping shifts.54 But nowhere in

her complaint does she allege that these retaliatory actions were taken by

SLMA employees who had knowledge of any concerns she allegedly raised.

Because Burchfield failed to plead sufficient facts on all of the ultimate

elements of her Title VII retaliation claim, this claim is dismissed.

3. Hostile Workplace Environment

The Supreme Court has held that Title VII proscribes the creation of “a

discriminatorily hostile or abusive environment.” Harris, 510 U.S. at 21. To

state a claim for hostile work environment, a plaintiff must allege that she:

(1) belongs to a protected group; (2) was subjected to unwelcome

harassment; (3) the harassment complained of was based on

[sex]; (4) the harassment complained of affected a term,

condition, or privilege of employment; [and] (5) the employer

knew or should have known of the harassment in question and

failed to take prompt remedial action.

54 R. Doc. 1 ¶¶ 65, 67.

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)

(quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).

An employee has a cause of action under Title VII when the workplace

is “permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Harris, 510 U.S.

at 21 (citations and internal quotation marks omitted). But “not all

harassment, including ‘simple teasing, offhand comments, and isolated

incidents (unless extremely serious),’ will affect a ‘term, condition, or

privilege of employment.’” Alaniz v. Zamora-Quezada, 591 F.3d 761, 771

(5th Cir. 2009) (quoting Shepherd v. Comptroller of Pub. Accts., 168 F.3d

871, 874 (5th Cir. 1999)). “Whether an environment is hostile or abusive

depends on the totality of the circumstances, including factors such as the

frequency of the conduct, its severity, the degree to which the conduct is

physically threatening or humiliating, and the degree to which the conduct

unreasonably interferes with an employee’s work performance.” Id. (quoting

Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005) (internal

quotation marks omitted)). A plaintiff must subjectively perceive the

environment to be abusive, and the work environment must be objectively

hostile or abusive. See Harris, 510 U.S. at 21-22.

In Burchfield’s complaint, she alleges that SLMA fostered a hostile

work environment based on her sex. She specifically alleges that SLMA and

its employees engaged in harassment by:

1. Making false statements about her and her job performance;

2. Placing her, and none of the male physicians from the January shift,

on paid administrative leave;

3. Giving her false information about restrictions to her privileges and job

responsibilities;

4. Scheduling her for less-favorable day shifts that would result in a

reduction in pay, while giving a less experienced male coworker her

usual night shifts; and

5. Denying her the ability to swap a shift with a coworker.

Burchfield contends that these acts caused her to feel humiliated and

ostracized, affecting her privileges and working conditions and resulting in a

constructive discharge.55

Taking these allegations as true, Burchfield fails to allege “extreme

conduct” that “amounts to discriminatory changes in the terms and

conditions of employment.” Martin v. Am. Midstream Partners, LP, 386 F.

Supp. 3d 733, 739 (E.D. La. 2019). As an initial matter, Burchfield’s first,

55 Id. ¶ 76.

third, and fifth allegations fail because she does not allege facts plausibly

suggesting that these acts or statements were “based on her [sex].”

Hernandez, 670 F.3d at 651. As explained by the Supreme Court, “Title VII

does not prohibit all verbal or physical harassment in the workplace; it is

directed only at ‘discriminat[ion] . . . because of . . . sex.’” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (emphasis in

original). Thus, the “critical issue . . . is whether members of one sex are

exposed to disadvantageous terms or conditions of employment to which

members of the other sex are not exposed.” Id. (citation and internal

quotation marks omitted). Burchfield has failed to offer any facts supporting

the inference that these allegations of harassment were based on her sex or

had a discriminatory character or purpose. See Harris-Childs v. Medco

Health Sols., Inc., 169 F. App’x 913, 917 (5th Cir. 2006) (finding no error

when district court held that there was no evidence that “alleged harassing

events were based on plaintiff’s race or had a racial character or purpose” to

support hostile work environment claim). Additionally, as previously

discussed in relation to her discrimination claims, the second and third

allegations of harassment fail because they did not affect a term, condition,

or privilege of Burchfield’s employment.56 As pled, these allegations cannot

form the basis of her hostile work environment claim.

Burchfield’s fourth allegation of harassment also fails. Although

Burchfield contends that she subjectively experienced harassment when she

was scheduled for day shifts, this alone is insufficient to support her claim.

She must also allege “that the discriminatory conduct was severe or pervasive

enough to create an objectively hostile or abusive work environment.”

Harris-Childs, 169 F. App’x at 917 (citing Harris, 510 U.S. at 370). Here,

Burchfield offers no allegations that SLMA’s decision to schedule her for day

shifts was so severe or humiliating to constitute harassment. See Harris-

Childs, 169 F. App’x at 917 (finding plaintiff’s allegations that employer

treated her worse than non-African American employees in terms of

scheduling, work performance expectations, and disciplinary incident were

insufficient to establish a hostile work environment claim).

Accordingly, Burchfield’s hostile workplace environment claim is

dismissed.

56 See supra Sections III.A.1.i & III.A.1.ii.

B. The State Law Claims

SLMA also moves to dismiss Burchfield’s state law claims on the

grounds of prescription. The Louisiana Employment Discrimination Law

(“LEDL”), La. Stat. Ann. §§ 23:301, et seq., provides a one-year prescriptive

period. The prescriptive period runs from the date of an allegedly unlawful

employment act, but it is suspended during the pendency of an EEOC

investigation for a period not to exceed six months. La. Stat. Ann.

§ 23:303(D). Thus, there is “a maximum prescriptive period of eighteen

months for claims based on violations of [Louisiana Revised Statute section

23:301].” Riggs v. DXP Enters., Inc., No. 18-729, 2019 WL 310053, at *5

(W.D. La. Jan. 8, 2019); see also Snow v. Cracker Barrel Old Country Store,

Inc., No. 15-2375, 2015 WL 5276772, at *2 (E.D. La. Sept. 8, 2015) (“In

application, [Louisiana Revised Statute section 23:303(D)] requires a

plaintiff to bring his LEDL claim within a maximum of eighteen months from

the day he learns of the conduct creating his grievance.”). Generally, the

party asserting prescription has the burden of proof at trial. But if

prescription is revealed to have run on the face of plaintiff’s complaint, the

burden shifts to plaintiff to show that her claim is not prescribed. Wimberly

v. Gatch, 635 So. 2d 206, 211 (La. 1994); Winstead v. Ga. Gulf Corp., 77 Fed.

App’x 267, 272 (5th Cir. 2003); see also Netherland v. Ethicon, Inc., 813

So. 2d 1254, 1261 (La. App. 2 Cir. 2002) (“When the plaintiff’s claim is

prescribed on its face and the plaintiff asserts the doctrine of contra non

valentem, the plaintiff is required to prove the facts establishing contra non

valentem.”).

Because Burchfield resigned on May 6, 2021, the last possible date on

which she could have filed suit was November 6, 2022. She did not do so

until May 4, 2023, nearly twenty-four months after her resignation. Thus,

on the face of Burchfield’s complaint, her LEDL claims are prescribed. The

burden now shifts to Burchfield to show that her claims are not prescribed.

Burchfield contends that her LEDL claims are not prescribed because

prescription was interrupted by the filing of a defamation suit in Louisiana

state court.57 According to Burchfield, she filed the state court action on

January 18, 2022, against three male SLMA employees and SLMA for false

and defamatory statements made by these individuals during the course and

scope of their employment.58 But Burchfield does not cite to any legal

standard supporting this argument. She thus fails to negate the presumption

of prescription on this ground.

57 R. Doc. 11 at 20-21.

58 R. Doc. 1 at 3 n.2 (noting that the action is currently pending as Sydney

Burchfield, N.P. v. South Louisiana Medical Associates, et al. in the

32nd Judicial District Court for the Parish of Terrebonne, State of

Louisiana, Case No. 192750, Division “D”).

Burchfield further contends that because she did not receive the right

to sue notice from the EEOC until February 9, 2023, she was unable to

commence this action until after that date.59 This argument is without merit.

The Fifth Circuit has made clear that the filing of an EEOC charge “does not

toll, interrupt, or suspend prescription with regard to a plaintiff’s state law

claims.” Fussell v. Bellsouth Commc’ns, Inc., No. 96-1660, 1998 WL 12229,

at *2 (E.D. La. Jan. 8, 1998) (citing Taylor v. Bunge Corp., 775 F.2d 617 (5th

Cir. 1985)); see also Rivera v. Louisiana, No. 04–3327, 2006 WL 901826, at

*6 (E.D. La. Mar. 31, 2006) (collecting cases). To bring suit under

Louisiana’s anti-discrimination statute, a plaintiff need only provide the

defendant with thirty days’ notice of the allegations, whether through an

EEOC charge or otherwise. See Mayes v. Office Depot, Inc., 292 F. Supp. 2d

878, 889 (W.D. La. 2003) (citing La. Stat. Ann. § 23:303(C)). Burchfield

could have filed her action in state court and obtained a stay while pursuing

her Title VII remedies. See Rivera, 2006 WL 901826, at *6 (citing

Brouillette v. Transamerican Ref. Corp., No. 95-0584, 1995 WL 683869, at

*5 (E.D. La. Nov. 11, 1995)). Because this was an available course of action,

Burchfield was not prevented from acting, and the doctrine of contra non

59 R. Doc. 11 at 20-21.

valentem does not apply. Accordingly, the Court dismisses Burchfield’s

claims under LEDL as prescribed.

C. Leave to Amend

Burchfield requests leave to amend her complaint. The Court will

“freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a).

The Supreme Court has held that “[i]f the underlying facts or circumstances

relied upon by a plaintiff may be a proper subject of relief, [she] ought to be

afforded an opportunity to test [her] claim on the merits.” Foman v. Davis,

371 U.S. 178, 182 (1962). Nevertheless, leave to amend “is by no means

automatic.” Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir. 1994).

The Court considers multiple factors, including “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, [and] futility of

amendment.” Foman, 371 U.S. at 182. Amendment is deemed futile if, for

instance, “it would fail to survive a Rule 12(b)(6) motion.” Marucci Sports,

L.L.C. v. Nat’l Coll. Athl. Ass’n, 751 F.3d 368, 378 (5th Cir. 2014); Vlasek v.

Wal-Mart Stores, Inc., No. H-07-0386, 2007 WL 2402183, at *3 (S.D. Tex.

Aug. 20, 2007) (leave to amend should be denied if “allegations of other facts

consistent with the challenged pleading could not possibly cure the

deficiency”).

The Court finds that amendment of Burchfield’s Title VII

discrimination claims based on her paid administrative leave and Dr.

Falterman’s statement, as well as her LEDL claims would be futile. These

claims are dismissed as a matter of law. The Court grants Burchfield’s

request for leave to amend her Title VII constructive discharge, retaliation,

and hostile work environment claims. The Court notes that any amended

pleading must not create allegations outside the scope of the EEOC charge.

See Pacheco, 448 F.3d at 789 (“Title VII clearly contemplates that no issue

will be the subject of a civil action until the EEOC has first had the

opportunity to attempt to obtain voluntary compliance.” (internal citation

and quotation marks omitted)); Stingley v. Watson Quality Ford, 836 F.

App’x 286, 291 (5th Cir. 2020) (“The universe of claims a plaintiff can

properly advance in a Title VII suit is set by the contours of the

administrative process.”); see also Aucoin v. Kennedy, 355 F. Supp. 2d 830,

840 (E.D. La. 2004) (holding that a plaintiff “may not circumvent the EEOC

filing requirements by raising only a few claims in her EEOC filings, and later

suing over every claim arising out of her employment”).

Ill. CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss is GRANTED

IN PART and DENIED IN PART. The Court denies defendant’s motion on

plaintiffs Title VII discrimination claim based on the night-to-day shift

changes and reduced compensation. The Court grants defendant’s motion

on plaintiffs Title VII discrimination claims based on her paid

administrative leave and Dr. Falterman’s statement, as well as her LEDL

claims. These claims are DISMISSED WITH PREJUDICE. The Court grants

defendant’s motion on plaintiffs Title VII constructive discharge, retaliation,

and hostile work environment claims. These claims are DISMISSED

WITHOUT PREJUDICE, and plaintiff is granted twenty-one days to amend

the complaint with respect to these claims.

New Orleans, Louisiana, this _13th day of September, 2023.

Aorwk Vave1r.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

43