Jones v. Southern University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SHANTRICE L. JONES CIVIL ACTION

VERSUS 18-1034-SDD-EWD

SOUTHERN UNIVERSITY, SAGE

REHABILITATION OUTPATIENT,

LEIGH ANN BAKER, AMELIA MAJOR,

DONNA FITZGERALD-DEJEAN,

TERRILYN GILLIS, AND ELAINE

LEWNAU

RULING

This matter is before the Court on the Motion to Dismiss1 filed by Defendant, Dr.

Janet Rami (“Dr. Rami”). Plaintiff, Shantrice L. Jones (“Plaintiff”), representing herself

pro se, has filed an Opposition2 to the motion, to which Dr. Rami filed a Reply.3 For the

following reasons, Dr. Rami’s motion shall be granted.

I. FACTUAL BACKGROUND

Plaintiff, an African-American female and a former student of Southern University

A & M College (“Southern”), who filed this lawsuit against Southern, several Southern

employees, and other defendants, alleging they have violated a number of federal and

state laws. Plaintiff enrolled in Southern in 2015 as a speech pathology graduate

1 Rec. Doc. No. 27.

2 Rec. Doc. No. 61.

3 Rec. Doc. No. 72.

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student.4 At the time of enrollment, Plaintiff requested unspecified accommodations

from Southern based on parenting a special-needs daughter. Southern’s response was

that it was unaware that Plaintiff was entitled to any such accommodations.5

Nevertheless, Plaintiff acknowledges that Southern later provided Plaintiff with

accommodations in relation to her education.6

During the relevant time period, Defendant and Movant herein, Dr. Rami, served

as the Dean of the College of Nursing & Allied Health for Southern University.7

Defendant Leigh Ann Baker (“Baker”) was the Director of Clinical Education for

Southern,8 and Plaintiff claims that, in the fall of 2016 and the spring of 2017, Baker

acted as though she was superior to Plaintiff, allegedly based on Plaintiff’s race.9

Plaintiff alleges that Baker demonstrated “racially motivated micro aggressive behavior”

by correcting a term the Plaintiff used in a conversation and also interrupting the Plaintiff

in a conversation.10 Additionally, Plaintiff claims Baker asked Plaintiff if she had any

experience performing hearing screenings but did not ask this same question of a

Caucasian student.11 Baker also allegedly sent Plaintiff emails that Plaintiff describes

as “badgering” and “harassing” and wherein Baker “threatened dismissal out of the

program.”12

In Plaintiff’s field of study, Southern requires students to earn a certain number of

4 Rec. Doc. No. 16, ¶¶ 14-15.

5 Id., ¶¶ 16-17.

6 Id., ¶¶ 20, 144

7 Id., ¶ 165.

8 Id., ¶ 4.

9 Id., ¶ 21.

10 Id., ¶ 22.

11 Id., ¶ 19.

12 Id., ¶¶ 26-27.

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clinic hours to graduate.13 In May 2017, Baker assigned Plaintiff three clinical

placements, two of which were on campus and which Plaintiff opposed. Plaintiff believes

this was done to interfere with her graduation14 and demonstrates Baker’s bias against

African-American students.15 Because Plaintiff refused to participate in these clinics due

to her daughter’s care needs, Plaintiff alleges Baker indicated Plaintiff would receive a

failing grade and be dropped from the clinic.16

The Plaintiff complained about Baker to Southern’s student affairs department,17

and she was advised that Southern was already investigating other student complaints

against Baker.18 Plaintiff was directed to a university committee led by Tavares Walker

(“Walker”) that was responsible for investigating complaints brought within the speech

and language graduate department.19

In the fall of 2017, Plaintiff began a clinical placement at Defendant, Sage

Rehabilitation Outpatient facility (“Sage”) under the supervision of Defendant, Amelia

Major (“Major”).20 Plaintiff claims that Baker placing her at Sage was a purposeful effort

to sabotage Plaintiff’s career goals because Baker knew that Sage maintains a strict

attendance policy to which Plaintiff would be unlikely to adhere based on the needs of

her daughter.21 Plaintiff alleges that Major discriminated against her by providing Plaintiff

the wrong address for the clinic, inviting white students (but not Plaintiff) to therapist

13 Rec. Doc. No. 24-1 at 2.

14 Id., ¶ 29.

15 Id., ¶ 30.

16 Id., ¶ 31.

17 Id., ¶¶ 33-35.

18 Id., ¶ 36.

19 Id., ¶¶ 52-53.

20 Id., ¶¶ 40-42, 65.

21 Id., ¶ 65.

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meetings, and critiquing the Plaintiff more strictly than white students.22

Plaintiff’s attendance at Sage was sparse, allegedly due to the care needs of her

daughter. In early November 2017, Major advised that Plaintiff’s numerous absences –

9 out of 15 half or missed days – would affect her grade and possibly lead to her

dismissal from the clinic.23 Plaintiff allegedly responded to Major that Major’s behavior

was similar to that of Baker’s, against whom Plaintiff had filed a complaint.24 Plaintiff

then provided Major with Walker’s contact information, ostensibly suggesting that Major

would also be subject to this investigation.25

Later in November 2017, Plaintiff claims she was “lure[d]” to Southern’s campus

to meet with Southern professors, also named Defendants herein, Dr. Terrilyn Gillis (“Dr.

Gillis”), Dr. Elaine Lewnau (“Dr. Lewnau”), and Dr. Donna Fitzgerald-Dejean (“Dr.

Fitzgerald”).26 Plaintiff alleges that these professors accused her of being a liar, a forger,

and of trying to intimidate Major by giving her Walker’s information.27 Plaintiff further

alleges these professors then advised her that she was being discharged from the clinic

program at Sage.28

Plaintiff subsequently attended another meeting with Dr. Fitzgerald and Dr.

Lewnau29 wherein Dr. Fitzgerald allegedly defamed Plaintiff by stating that Plaintiff had

previously threatened to choke Dr. Fitzgerald.30 Plaintiff further alleges that Dr.

22 Id.

23 Id., ¶¶ 66-67.

24 Id., ¶ 71.

25 Id.

26 Id., ¶¶ 78-79. The Court will refer to Dr. Fitzgerald-Dejean as “Dr. Fitzgerald” as Plaintiff refers to this

Defendant in this manner throughout her pleadings.

27 Id., ¶¶ 80-82.

28 Id., ¶ 83.

29 Id., ¶¶ 95-96.

30 Id., ¶ 103.

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Fitzgerald and Dr. Lewnau defamed Plaintiff by calling her a liar and by claiming that

Plaintiff had given false information to Major.31

After filing a retaliation complaint with Southern, Plaintiff then attended another

meeting with Dr. Fitzgerald and Lewnau.32 At this meeting, Plaintiff alleges she was

told she would receive a failing grade for her Sage internship, would not receive credit

for the hours worked, and would be cited for academic dishonesty.33 The Plaintiff

advised Walker of these events, Walker informed Plaintiff that the investigation was

ongoing, and he assured Plaintiff that the Defendants “would not be allowed to take such

actions against the plaintiff.”34

In December 2017, Plaintiff filed an academic grievance against her professors

for their alleged treatment of her. Although lacking in specifics, Plaintiff alleges in a

wholesale manner that “[t]he defendants” retaliated against her by writing a letter to the

registrar’s office requesting that it: (1) dismiss Plaintiff from the clinic program; (2) honor

the “F” grade she was assigned; (3) suspend her from the Master’s Degree program for

one year; (4) not allow Plaintiff to enroll in any SECD courses; and administratively

remove Plaintiff if she attempts to register for SECD courses.35 Plaintiff alleges that she

was subsequently de-registered from classes and suspended by Dr. Fitzgerald, Dr.

Lewnau, Dr. Gillis, and another professor.36 Plaintiff also alleges that, in later meetings

which included Dr. Rami, certain defendants stated they would not abide by the ADA

31 Id., ¶ 106.

32 Id., ¶¶ 113-18.

33 Id., ¶ 120.

34 Id., ¶¶ 121-24 (emphasis in original).

35 Id., ¶ 133.

36 Id., ¶ 140.

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accommodations being provided to Plaintiff by Southern.37

Plaintiff’s academic grievance was initially denied, and she appealed to Dr. Rami

as Dean of the Department.38 Plaintiff alleges that Dr. Rami presented the case to the

appeal committee,39 and on February 27, 2018, Dr. Rami informed Plaintiff, in writing,

that her appeal had been denied.40 Plaintiff then appealed her grievance to the Dean of

Graduate Studies, Dr. Mohamadian, which was again denied.41 Plaintiff subsequently

appealed to Southern’s Vice Chancellor James Ammons (“Ammons”), and on July 5,

2018, Ammons overturned the academic actions of the faculty and granted all of

Plaintiff’s relief.42

Pending the appeal, Plaintiff acknowledges that Southern protected her rights,

and she continued to enroll in classes and pursue her degree.43 Plaintiff claims she

received the support of Ammons during the appeal process, who ensured that Plaintiff

remained in all of her classes,44 and Plaintiff continued to receive ADA

accommodations.45 Ultimately, Plaintiff won her appeal; she was awarded all relief

requested by Southern; her “F” grade was expunged; and her Sage clinical hours were

credited.46

Despite this outcome, Plaintiff alleges that Dr. Lewnau responded to the Vice

Chancellor’s decision by letter dated July 6, 2018, wherein she advised that she and the

37 Id., ¶¶ 144, 148.

38 Id., ¶ 165.

39 Id., ¶ 167.

40 Id., ¶¶ 166-67.

41 Id., ¶ 174.

42 Id., ¶ 178.

43 Id., ¶ 169.

44 Id., ¶¶ 139-42, 171-73.

45 Id., ¶ 144.

46 Id., ¶¶ 176-78.

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faculty department were in total disagreement with the grievance response.47 Plaintiff

claims that the defendants continued to question her about missed appointments for

clinical hours and required her to prepare a different presentation than she was originally

instructed.48 Nevertheless, Plaintiff acknowledges she was allowed to graduate, and

she earned her degree.49

Notwithstanding her successful appeal and ultimate graduation, Plaintiff filed this

lawsuit against Southern, Sage, and related employees, including Dr. Rami, movant

herein.50 Dr. Rami maintains that her sole role in this litigation is simply that she

adjudicated Plaintiff’s initial appeal from the denial of her grievance. Further, Dr. Rami

notes that Plaintiff does not allege that Dr. Rami denied the appeal based on Plaintiff’s

race or the fact that Plaintiff is the mother of a disabled child; likewise, Plaintiff does not

allege that Dr. Rami denied her appeal to retaliate against her for filing a Title IX

complaint. Moreover, even if Plaintiff made such allegations, which Dr. Rami denies,

Dr. Rami contends Plaintiff has failed to articulate a viable legal theory upon which she

can hold Dr. Rami liable as a matter of law. Plaintiff purportedly asserts a plethora of

claims under federal statutes as well as state law, and she seeks compensatory

damages, punitive damages, and injunctive relief.51 Dr. Rami contends that, in the 202

factual paragraphs of Plaintiff’s Amended Complaint, Dr. Rami is mentioned in eight, and

she claims that none of these eight paragraphs contain allegations that Dr. Rami

engaged in conduct with a racial or disability-based bias, much less a retaliatory intent.

47 Id., ¶ 181.

48 Id., ¶¶ 187-89.

49 Id., ¶ 190.

50 Rec. Doc. No. 1.

51 Id.

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Further, Dr. Rami contends several of the broadly pled claims do not provide for liability

against an individual capacity defendant, such as Plaintiff’s Title VI, Title VII, ADA, RA,

and Title IX claims. Further, Plaintiff has failed to plead facts to support a state law

defamation claim against Dr. Rami. Thus, Dr. Rami moves to dismiss all claims brought

against her in both her individual and official capacities. Plaintiff has opposed this

motion.

II. LAW AND ANALYSIS

A. Motion to Dismiss Under Rule 12(b)(6)

When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”52 The

Court may consider “the complaint, its proper attachments, documents incorporated into

the complaint by reference, and matters of which a court may take judicial notice.”53 “To

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.’”54 In Twombly, the United States Supreme

Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)

motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.”55 A complaint is also insufficient if it

52 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin v. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

53 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).

54 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area

Rapid Transit, 369 F.3d at 467).

55 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets

omitted)(hereinafter Twombly).

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merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”56 However,

“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the

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

alleged.”57 In order to satisfy the plausibility standard, the plaintiff must show “more than

a sheer possibility that the defendant has acted unlawfully.”58 “Furthermore, while the

court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable

to the plaintiff.’”59 On a motion to dismiss, courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.”60

Additionally, “[a] liberal reading of plaintiff’s pleadings is the only special treatment

afforded pro se plaintiffs by the courts.”61 A “court is not required to search for or try to

create causes of actions or find material issues of fact for pro se plaintiffs.”62 Indeed, “a

pro se litigant is not ‘exempt ... from compliance with the relevant rules of procedural

and substantive law.’63 A pro se litigant is not entitled to greater rights than would be a

litigant represented by a lawyer.”64

C. Plaintiff’s Abandoned Claims

First, the Court acknowledges that “pro se pleadings are held to less stringent

56 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations

omitted)(hereinafter “Iqbal”).

57 Twombly, 550 U.S. at 570.

58 Iqbal, 556 U.S. at 678.

59 Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire

Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).

60 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d

209 (1986)).

61 Kiper v. Ascension Parish Sch. Bd., 2015 WL 2451998, *1 (M.D. La. May 21, 2015)(citing Callahan v.

C.I.R., Civ. A. 99-0295-C-M1, 2000 WL 1141607, at *1 (M.D. La. Apr. 10, 2000)).

62 Id.

63 NCO Financial Systems, Inc. v. Harper–Horsley, No.07–4247, 2008 WL 2277843 at *3 (E.D.La. May 29,

2008), quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981).

64 Id., citing Birl, 660 F.2d at 593.

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standards than pleadings drafted by lawyers,”65 and “pro se pleadings must be treated

liberally.”66 Nevertheless, “a pro se litigant is not ‘exempt ... from compliance with the

relevant rules of procedural and substantive law.’67 A pro se litigant is not entitled to

greater rights than would be a litigant represented by a lawyer.”68 Plaintiff has already

amended her Complaint once in this matter, yet Plaintiff still fails to state a claim upon

which relief may be granted.

Although Plaintiff’s Amended Complaint alleges facts that purportedly trigger a

variety of federal statutes, in her Opposition, Plaintiff focuses her arguments primarily

on defamation and civil conspiracy under 42 U.S.C. §1985, a claim Plaintiff has not pled.

The Court notes that “stating a claim” does not simply require the mere recitation of facts

Plaintiff alleges to have happened; rather, she must state a claim “upon which relief may

be granted,” meaning Plaintiff must demonstrate in her Complaint and in her Opposition

to the Motion to Dismiss how the facts alleged meet the elements of the federal and

state laws under which she claims she is entitled to relief.

Plaintiff does not address the elements of her claims brought under Title VI, Title

VII, the ADA, the RA, and Title IX, nor does she argue or demonstrate how the facts pled

satisfy her pleading burden. Notwithstanding the fact that Plaintiff lacks any substantive

legal entitlement to relief under several of these statutes, Plaintiff’s failure to address or

oppose asserted claims in her Opposition results in the abandonment of those claims.69

65 Haines v. Kerner, 404 U.S. 519, 520–21 (1972).

66 U.S. v. Robinson, 78 F.3d 172, 174 (5th Cir.1996); Priester v. Lowndes County, 354 F.3d 414, 418 (5th

Cir. 2004).

67 NCO Financial Systems, Inc. v. Harper–Horsley, No.07–4247, 2008 WL 2277843 at *3 (E.D.La. May 29,

2008), quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981).

68 Id., citing Birl, 660 F.2d at 593.

69 The Court notes in the alternative that the abandoned claims are also substantively without merit based

on the allegations of Plaintiff’s Amended Complaint for the reasons and jurisprudence set forth by Dr. Rami

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Accordingly, Plaintiff’s purported Title VI claims, Title VII claims, Rehabilitation Act

claims, ADA claims, and Title IX claim against Dr. Rami in any capacity are deemed

abandoned,70 and these claims are dismissed with prejudice.

D. Defamation Claim

In her Opposition, Plaintiff cites to the definition of defamation found in 28 U.S.C.

§4101;71 as Dr. Rami notes, this statute applies to foreign judgments and is wholly

inapplicable to this case. Plaintiff has purportedly asserted a state law defamation claim

against Dr. Rami, which could only arise under Louisiana law. To the extent Plaintiff

relies on jurisprudence outside of Louisiana, such cases are inapposite to whether

Plaintiff has stated a claim under Louisiana law against Dr. Rami for defamation.

While Plaintiff makes numerous allegations against “the defendants” in wholesale

fashion, the allegations made specifically against Dr. Rami contained in Plaintiff’s

Amended Complaint are set forth below:

Going through the grievance process, the grievance along with the

defamation remarks, made by Dr. Fitzgerald and the other defendants were

submitted and communicated with other agents, of the Board of

Supervisors, Southern University, along with outside contacts, this is

in her Memorandum in Support of Motion to Dismiss, Rec. Doc. No. 27-1.

70 See U.S. ex rel. Woods v. SouthernCare, Inc., 2013 WL 1339375 at *7 (S.D. Miss. Mar. 30, 2013)(“The

Relators did not adequately brief their opposition to the Defendant's Motion to Dismiss Count Three on

state law claims of fraud, suppression, and deceit. As such, they have abandoned Count Three. See Black

v. N. Panola Sch. Dist., 461 F.3d 584, 588 n. 1 (5th Cir. 2006) (concluding that plaintiff's failure to defend

her “retaliatory abandonment” claim in response to the defendant's motion to dismiss constituted

abandonment of the claim); Dean v. One Life Am., Inc., No. 4:11–CV–203–CWR–LRA, 2013 WL 870352,

at *2 (S.D.Miss. Mar. 7, 2013) (holding that by failing to address the defendant's argument in her response,

the plaintiff abandoned her claim); Alexander v. Brookhaven Sch. Dist., No. 3:07–CV–640–DPJ–JCS, 2009

WL 224902, at *4 (S.D.Miss. Jan. 28, 2009) (stating that the plaintiff “appears to have abandoned [her

Equal Pay Act] claim having not defended it” in her response to the defendant's motion to dismiss), aff'd,

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

71 This statute provides that, “[t]he term ‘defamation’ means any action or other proceeding for defamation,

libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or

emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or

condemnation of any person.”

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documented by the defendant, Mrs. Rami, (See Exhibit M).72

. . . The other defendants, Dr. Gillis, and Dr. Rami have been demoted in

their position with the board of supervisors, [S]outhern university.73

The academic grievance at that time, was sided with the defendants, so the

plaintiff appealed the decision and the process went on to the next level

which was to the dean, Janet Rami.74

Janet Rami states that she presented the issue to outside contacts.75

Any references to Dr. Rami contained in wholesale, generalized references to “the

defendants” fails to meet the Rule 12(b) pleading standard as a matter of law. Courts

within the Fifth Circuit have routinely held that such generalized references to actions by

all defendants are insufficient to state a claim.76 Accordingly, the Court will evaluate only

the specific defamation allegations made against Dr. Rami.

The Louisiana Supreme Court has held that defamation is a tort involving “the

invasion of a person's interest in his [or her] reputation and good name.”77 Both federal

and state courts in Louisiana have held that, “[t]o maintain a defamation action under

Louisiana law, a plaintiff must prove the following elements: ‘(1) a false and defamatory

statement concerning another; (2) an unprivileged publication to a third party; (3) fault

72 Rec. Doc. No. 16, ¶ 145.

73 Id., ¶ 163.

74 Id., ¶ 165.

75 Id., ¶ 166.

76 See, e.g., Petri v. Kestrel Oil & Gas Properties, L.P., Civil Action Nos. 09-3994, 10-122, 10-497, 2011

WL 2181316, at * 6 (S.D. Tex. June 3, 2011) (“Plaintiffs have improperly lumped all Defendants together in

the amended complaint, which is too vague and ambiguous to state a claim and is devoid of particularized

and specific allegations against WGMS as to all allegations of negligence, gross negligence and/or

malice.”); Howard v. ABN AMRO Mortg. Group, Inc., No. 1:13CV543, 2014 WL 1237317, at * 3 (S.D. Miss.

March 26, 2014) (explaining that “the Fifth Circuit has provided that ‘[w]here the complaint is devoid of facts

that would put the defendant on notice as to what conduct supports the claims, the complaint fails to satisfy

the requirement of notice pleading.’ It necessarily follows that the Plaintiff's conclusory allegations against

all ‘defendants’ fail to state a claim upon which relief can be granted as to FHLB and Wells Fargo.”) (quoting

Anderson v. U.S. Dep't of Hous. & Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008) (citing Beanal v. Freeport–

McMoran, Inc., 197 F.3d 161, 165–66 (5th Cir. 1999)).

77 Sassone v. Elder, 626 So.2d 345, 350 (La. 1993).

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(negligence or greater) on the part of the publisher; and (4) resulting injury.’”78 If any

single element of the tort is lacking, the cause of action fails.79 Further, “’[t]he fault

requirement is generally referred to in the jurisprudence as malice, actual or implied.’”80

In English v. Wood Group PSN, Inc.81 the district court for the Eastern District of

Louisiana comprehensively explained what is necessary to state a claim of defamation

under Louisiana law:

To plead facts sufficient to state a cause of action for defamation under

Louisiana law, Louisiana courts do not require a quoted statement but do

require the plaintiff provide “with reasonable specificity the defamatory

statements allegedly published by the defendant.” Badeaux v. Sw.

Computer Bureau, Inc., 2005–0612 (La.3/17/06), 929 So.2d 1211, 1218

(citing Fitzgerald, 737 So.2d at 713); see Haygood v. Begue, No. 13–CV–

0335, 2014 WL 1316200, at *6 (W.D.La. Mar.31, 2014). In other words, “[i]t

is not necessary for a plaintiff to state verbatim the words on which [the

plaintiff] bases his cause of action, but he must allege a state of facts or

condition of things which would show fault under article 2315.” Badeaux,

929 So.2d at 1218 The Louisiana courts also require that the plaintiff

“name the individual offenders and allege separate acts of defamation

as to each, including specific defamatory statements.” Id. at 1218 (citing

Juneau v. Avoyelles Par. Police Jury, 482 So.2d 1022, 1027 (La.App. 3d

Cir.1986)). A Louisiana appellate court has noted that, under the Louisiana

law of defamation, “[c]ommunications between a previous employer and a

prospective employer ... enjoy a qualified or conditional privilege. Such a

communication is not actionable when made in good faith.” Butler v. Folger

Coffee Co., 524 So.2d 206, 207 n. 1 (La.Ct.App.1988)(citing Alford v.

Georgia–Pacific Corp., 331 So.2d 558, 561 (La.App. 1st Cir.1976), writ

denied 334 So.2d 427).82

Dr. Rami contends that, reading the allegations in Plaintiff’s Amended Complaint,

Plaintiff does not allege whether Dr. Rami made any defamatory statements, what those

78 Schmidt v. Cal-Drive International, Inc., 240 F.Supp.3d 532, 542 (W.D. La. 2017)(quoting 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)).

79 Id. at 542 (citing Costello v. Hardy, 864 So.2d at 139.

80 Id. (quoting Kennedy at 674).

81 No. 15-568, 2015 WL 5061164 (E.D. La. Aug. 25, 2015).

82 Id. at *16 (emphasis added).

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defamatory statements allegedly were, or to whom such statements were published.

Further, Plaintiff fails to plead any actual malice on the part of Dr. Rami. Thus, under

Louisiana law, Plaintiff’s defamation claim, as pled against Dr. Rami, fails.

Plaintiff argues in her Opposition, as follows:

The defendant, Janet Rami, agent of the Board of Supervisor, by her own

admission published the defamation remarks by discussing with outside

parties (other than members of the Board of Supervisors Agency), her

admission is in a form that she signs and states that (See Exhibit M of

Complaint).

The defendant, Janet Rami along with the other members of the Board of

Supervisors that are listed as Defendant conspired together to try and make

the defamation remarks seem as a joke in an official meeting with other

Superior Agents of the Board of Supervisors of Southern. (See Audio of the

Meeting - Exhibit I A) ~ This is mentioned in the complaint as evidence to

the Malicious intent, by total disregard to the remarks and to try and cover

it up to make it seem as a joke.83

Plaintiff further argues that Dr. Rami “[h]as use [sic] her authority that was given

her to retaliate against the plaintiff Maliciously and neglectanly [sic], by conspiring with

others to continue the defamation by publishing it to a third party and then trying to cover

the defamation up by stating that it was a joke and she wasn’t there when the remark was

spoken.”84 Plaintiff essentially argues that Dr. Rami is liable because Dr. Fitzgerald made

defamatory statements accusing Plaintiff of forgery, a criminal act, and Dr. Rami repeated

Dr. Fitzgerald’s allegedly false statements to third parties while having knowledge that

such statements were false. The Court notes that the facts argued in Plaintiff’s Opposition

are not found in her Amended Complaint, and a party cannot amend pleadings through

opposition memoranda. The law is well-settled that arguments in a brief are not a

83 Rec. Doc. No. 63 at 8.

84 Id. at 11.

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substitute for properly pleaded allegations: “it is axiomatic that a complaint cannot be

amended by briefs in opposition to a motion to dismiss.”85

Further, the Court finds that the statements complained of constitute intra-

corporate communications that fail to satisfy the publication element as set forth by a

wealth of Louisiana jurisprudence. The allegedly defamatory statements, not originally

made by Dr. Rami but allegedly only repeated by her, were made in the context of an

internal grievance investigation at Southern University. In Source Production &

Equipment Co., Inc. v. Schehr, the district court for the Eastern District of Louisiana

explained and evaluated this type of communication where a defamation claim was

brought under Louisiana law:

Louisiana appellate courts have held that “an intra-corporate

communication among officers or agents of the same corporation, in

connection with their duties for the corporation, are a communication of the

corporation,” not a publication to a third party. Wisner v. Harvey, 694 So. 2d

348, 350 (La. App. 1 Cir. 1996) (citing Commercial Union Ins. Co. v.

Melikyan, 424 So. 2d 1114, 1115 (La. App. 1 Cir. 1982)); accord Doe v.

Grant, 839 So. 2d 408, 416 (La. App. 4 Cir. 2003); Bell v. Rogers, 698 So.

2d 749, 756 (La. App. 2 Cir. 1997). This intra-corporate communication rule

is based on Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.

2d 196 (La. 1980). The plaintiff in Cangelosi, who was a cashier, alleged

that her supervisors falsely accused her of altering a check. Id. at 197. This

accusation took place during a meeting with the plaintiff’s supervisors. Id.

Because the only people present were the plaintiff and “supervisory

personnel essential to the investigation,” the Louisiana Supreme Court held

that statements made by these supervisors during the meeting were not

published to a third party. Id. at 198.86

85 Becnel v. St. Charles Par. Sheriff's Office, No. 15-1011, 2015 WL 5665060, at *1 n.3 (E.D. La. Sept. 24,

2015) (quoting In re Enron Corp. Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex.

2011)(collecting cases)). Because a Rule 12(b)(6) motion tasks the Court with “assess[ing] the legal

sufficiency of the complaint,” the Court does not consider allegations that appear for the first time in plaintiffs'

briefing. Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th

Cir. 2012).

86 Id. at *2.

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The Court finds the allegedly defamatory statements made by Dr. Fitzgerald, and

allegedly “repeated” by Dr. Rami, are precisely the same kind of statements that were at

issue in Cangelosi. Plaintiff has failed to allege that these defamatory statements were

made by Dr. Rami outside of the context of the grievance investigation. Accordingly,

Plaintiff has failed to plead publication to a third party.

Notwithstanding the other defamation elements, the Court also finds that Plaintiff

has failed to allege any actual injury as a result of the alleged defamatory statements.

“Although it is true that ‘[t]he injury resulting from a defamatory statement may include

nonpecuniary or general damages such as injury to reputation, personal humiliation, [or]

embarrassment and mental anguish,’ a plaintiff still ‘must present competent evidence of

the injuries suffered.’”87 Plaintiff has failed to allege any injury resulting from the alleged

statement “beyond a multitude of conclusory remarks.”88 Indeed, Plaintiff’s allegations

demonstrate that, despite the alleged defamatory statements, all actions taken against

her were eventually reversed, and she was allowed to graduate and earn her degree in

her chosen field. Plaintiff has not pled any facts to suggest harm to her general reputation

or that the alleged defamation has limited her job opportunities. Accordingly, the Court

finds that Plaintiff has failed to state a claim for defamation against Dr. Rami.

E. Retaliation Claims

Plaintiff makes several references to retaliation and retaliatory discrimination in

her Opposition. To the extent Plaintiff has any viable claims for retaliation under the

relevant statutes, Dr. Rami cannot be held liable in her individual capacity as the ADA

87 Sanders v. Dillard University, No. 14-845, 2014 WL 7342440 at *8 (E.D. La. Dec. 23, 2014)(quoting

Costello, 2003–1146 at 14; 864 So.2d at 141).

88 Id.

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and the RA prohibit discrimination and retaliation by “a public entity.”89 The public entity

subject to liability under these statutes is Southern University, which Plaintiff has sued

in this lawsuit for the same relief, and the Court has previously dismissed. Any suit

against Dr. Rami in her official capacity as an employee or representative of Southern

University is a suit against Southern University itself.90 The Court previously dismissed

Plaintiff’s retaliation claims against Southern under the same theories asserted herein.

Therefore, any retaliation claims against Dr. Rami in any capacity are dismissed with

prejudice for the reasons set forth herein and previously in the Court’s Ruling granting

Southern’s Motion to Dismiss.91

III. CONCLUSION

Accordingly, Defendant Dr. Rami’s Motion to Dismiss92 is GRANTED. Plaintiff’s

claims against Dr. Rami are dismissed with prejudice.93

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana on August 15, 2019.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

89 42 U.S.C. § 12132.

90 Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105 (1985)(citing Monell v. New York City

Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55 (1978)).

91 Rec. Doc. No. 83.

92 Rec. Doc. No. 27.

93 Plaintiff has already once amended her Complaint and does not seek leave to amend in her Opposition.

The Court finds that further attempts to amend would be futile as a matter of fact and law.

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