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 Superseding Motion to Dismiss Under

Rules 12(b)(1) and (6)1 filed by Defendant, Board of Supervisors of Southern University

A & M College (“Southern”). Plaintiff, Shantrice L. Jones (“Plaintiff”), representing herself

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

following reasons, Southern’s motion shall be granted.

I. FACTUAL BACKGROUND

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

lawsuit against Southern, several Southern employees, and other defendants, alleging

they have violated several federal and state laws. Plaintiff enrolled in Southern in 2015

1 Rec. Doc. No. 24.

2 Rec. Doc. No. 61.

3 Rec. Doc. No. 72.

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as a speech pathology graduate 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 Leigh Ann Baker (“Baker”) was the

Director of Clinical Education for Southern,7 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.8 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.9 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.10 Baker also allegedly sent Plaintiff emails that

Plaintiff describes as “badgering” and “harassing” and wherein Baker “threatened

dismissal out of the program.”11

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

clinic hours to graduate.12 In May 2017, Baker assigned Plaintiff three clinical

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

4 Rec. Doc. No. 16, ¶¶ 14-15.

5 Id., ¶¶ 16-17.

6 Id., ¶¶ 20, 144

7 Id., ¶ 4.

8 Id., ¶ 21.

9 Id., ¶ 22.

10 Id., ¶ 19.

11 Id., ¶¶ 26-27.

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

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this was done to interfere with her graduation13 and demonstrates Baker’s bias against

African-American students.14 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.15

The Plaintiff complained about Baker to Southern’s student affairs department,16

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

against Baker.17 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.18

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”).19 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.20 Plaintiff alleges that Major discriminated against her by providing Plaintiff

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

meetings, and critiquing the Plaintiff more strictly than white students.21

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

13 Id., ¶ 29.

14 Id., ¶ 30.

15 Id., ¶ 31.

16 Id., ¶¶ 33-35.

17 Id., ¶ 36.

18 Id., ¶¶ 52-53.

19 Id., ¶¶ 40-42, 65.

20 Id., ¶ 65.

21 Id.

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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.22 Plaintiff allegedly responded to Major that Major’s behavior

was similar to that of Baker’s, against whom Plaintiff had filed a complaint.23 Plaintiff

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

would also be subject to this investigation.24

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”).25 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.26 Plaintiff further

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

program at Sage.27

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

Lewnau28 wherein Dr. Fitzgerald allegedly defamed Plaintiff by stating that Plaintiff had

previously threatened to choke Dr. Fitzgerald.29 Plaintiff further alleges that Dr.

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

Plaintiff had given false information to Major.30

22 Id., ¶¶ 66-67.

23 Id., ¶ 71.

24 Id.

25 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.

26 Id., ¶¶ 80-82.

27 Id., ¶ 83.

28 Id., ¶¶ 95-96.

29 Id., ¶ 103.

30 Id., ¶ 106.

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

meeting with Dr. Fitzgerald and Lewnau.31 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.32 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.”33

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.34 Plaintiff alleges that she

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

Lewnau, Dr. Gillis, and another professor.35 Plaintiff also alleges that, in later meetings,

certain defendants stated they would not abide by the ADA accommodations being

provided to Plaintiff by Southern.36

Plaintiff’s academic grievance was initially denied, and she appealed.37 Pending

31 Id., ¶¶ 113-18.

32 Id., ¶ 120.

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

34 Id., ¶ 133.

35 Id., ¶ 140.

36 Id., ¶¶ 144, 148.

37 Id., ¶ 165.

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the appeal, Plaintiff acknowledges that Southern protected her rights, and she continued

to enroll in classes and pursue her degree.38 Plaintiff claims she received the support

of Southern’s Vice Chancellor James Ammons (“Ammons”) during the appeal process,

who ensured that Plaintiff remained in all of her classes,39 and Plaintiff continued to

receive ADA accommodations.40 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.41

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

faculty department were in total disagreement with the grievance response.42 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.43 Nevertheless, Plaintiff acknowledges she was allowed to graduate and

earned her degree.44

Notwithstanding her successful appeal and ultimate graduation, Plaintiff filed this

lawsuit against Southern, Sage, and related employees.45 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.46 Southern previously

38 Id., ¶ 169.

39 Id., ¶¶ 139-42, 171-73.

40 Id., ¶ 144.

41 Id., ¶¶ 176-78.

42 Id., ¶ 181.

43 Id., ¶¶ 187-89.

44 Id., ¶ 190.

45 Rec. Doc. No. 1.

46 Id.

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moved to dismiss Plaintiff’s Complaint on its own behalf and on behalf of its former and

current employees named as Defendants.47 Thereafter, Plaintiff filed an Amended

Complaint48 ostensibly asserting claims under Titles VI and VII of the Civil Rights Act of

1964;49 Section 504 of the Rehabilitation Act (“RA”), and Title II of the Americans with

Disabilities Act (“ADA”).50 Separate counsel was engaged to represent the individual

Southern Defendants, and Southern now brings this renewed and superseding motion

to dismiss Plaintiff’s claims against it.

II. LAW AND ANALYSIS

A. Rule 12(b)(1) Motion to Dismiss

“When a motion to dismiss for lack of jurisdiction ‘is filed in conjunction with other

Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before

addressing any attack on the merits.’”51 If a complaint could be dismissed for both lack

of jurisdiction and for failure to state a claim, “‘the court should dismiss only on the

jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state

a claim under [Rule] 12(b)(6).’”52 The reason for this rule is to preclude courts from issuing

advisory opinions and barring courts without jurisdiction “‘from prematurely dismissing a

case with prejudice.’”53

47 Rec. Doc. No. 17.

48 Rec. Doc. No. 16.

49 42 U.S.C. § 2000e et seq.

50 42 U.S.C.A. § 12101 et seq.

51 Crenshaw–Logal v. City of Abilene, Texas, 436 Fed. Appx. 306, 308 (5th Cir. 2011)(quoting Ramming

v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635

F.3d 757, 762 (5th Cir. 2011); Fed.R.Civ.P. 12(h)(3)).

52 Crenshaw–Logal, 436 Fed.Appx. at 308 (quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th

Cir.1977)).

53 Id. (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998), and Ramming, 281 F.3d at

161).

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“Article III standing is a jurisdictional prerequisite.”54 If a plaintiff lacks standing to

bring a claim, the Court lacks subject matter jurisdiction over the claim, and dismissal

under Rule 12(b)(1) is appropriate.55 The party seeking to invoke federal jurisdiction

bears the burden of showing that standing existed at the time the lawsuit was filed.56 In

reviewing a motion under 12(b)(1) for lack of subject matter jurisdiction, a court may

consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the

court's resolution of disputed facts.57

Because Plaintiff has abandoned her state law claim against Southern as set forth

below, the Court need not address Southern’s Rule 12(b)(1) motion based on the defense

of sovereign immunity. Nevertheless, the Court notes that dismissal of this claim would

be proper as it well-settled that sovereign immunity “bar[s] federal courts from hearing

state law claims brought in federal court against state entities.”58

B. 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.’”59 The

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

54 Crenshaw–Logal, 436 Fed.Appx. at 308 (citing Steel Co., 523 U.S. at 101, 118 S.Ct. 1003, and Xerox

Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir.1989)).

55 Whitmore v. Arkansas, 495 U.S. 149, 154–55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Chair King, Inc.

v. Houston Cellular Corp., 131 F.3d 507, 509 (5th Cir.1997).

56 M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001); Howery v. Allstate Ins. Co., 243

F.3d 912, 916 (5th Cir. 2001); Ramming, 281 F.3d at 161.

57 Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981).

58 Raj v. La. State Univ., 714 F.3d 322, 329 (5th Cir. 2013).

59 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)).

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the complaint by reference, and matters of which a court may take judicial notice.”60 “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.’”61 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.”62 A complaint is also insufficient if it

merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”63 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.”64 In order to satisfy the plausibility standard, the plaintiff must show “more than

a sheer possibility that the defendant has acted unlawfully.”65 “Furthermore, while the

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

to the plaintiff.’”66 On a motion to dismiss, courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.”67

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

61 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).

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

omitted)(hereinafter Twombly).

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

omitted)(hereinafter “Iqbal”).

64 Twombly, 550 U.S. at 570.

65 Iqbal, 556 U.S. at 678.

66 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)).

67 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)).

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

afforded pro se plaintiffs by the courts.”68 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.”69 Indeed, “a

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

and substantive law.’70 A pro se litigant is not entitled to greater rights than would be a

litigant represented by a lawyer.”71

C. Plaintiff’s Abandoned Claims

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

standards than pleadings drafted by lawyers,”72 and “pro se pleadings must be treated

liberally.”73 Nevertheless, “a pro se litigant is not ‘exempt ... from compliance with the

relevant rules of procedural and substantive law.’74 A pro se litigant is not entitled to

greater rights than would be a litigant represented by a lawyer.”75 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 addresses only claims for retaliation

68 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)).

69 Id.

70 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).

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

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

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

Cir. 2004).

74 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).

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

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under Title VI and the ADA.76 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’s failure to address or oppose asserted claims in her Opposition results

in the abandonment of those claims.77 Accordingly, Plaintiff’s purported non-retaliation-

based Title VI claims, Title VII claims, Rehabilitation Act claims, non-retaliation ADA

claims, Title IX claim, and state law defamation claim are deemed abandoned,78 and

these claims are dismissed with prejudice.

D. Title VI Retaliation Claim

Plaintiff argues that she has asserted a retaliation claim under Title VI. Title VI's

implementing regulations prohibit the recipient of federal funds from retaliating against

any individual who makes a complaint or participates in an investigation under Title VI.79

76 Rec. Doc. No. 61 at 18 (objecting that Southern has distorted her claims and affirming that the “main

concept” is retaliation); id. at 12-16 (arguing in favor of a retaliation claim under Title VI); id. at 17–18

(arguing in favor of a retaliation claim under the ADA).

77 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 Southern

in its Memorandum in Support of Southern’s Renewed and Superseding Motion to Dismiss Under Rules

12(b)(1) and (6), Rec. Doc. No. 24-1.

78 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)).

79 Bisong v. University of Houston, 493 F.Supp.2d 896, 911 (citing 34 C.F.R. § 100.7(e). See also Peters

v. Jenney, 327 F.3d 307 (4th Cir. 2003)).

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To establish a prima facie case of unlawful retaliation, Plaintiff must show: “(1) that she

engaged in protected activity, (2) that she suffered a material adverse action, and (3)

that a causal link exists between the protected activity and the adverse action.”80 A

“causal link” is established when the evidence demonstrates that the employer's adverse

employment decision was based in part on knowledge of the employee's protected

activity.81 To demonstrate a causal link, Plaintiff “must show that the defendant knew

about the plaintiff's protected activity.”82

Southern accurately argues that Plaintiff must bring her Title VI action against

Southern, not the individual defendants, because “Title VI sets forth a remedy against

an entity not an individual.”83 With this in mind, Southern argues that Plaintiff must allege

that an “appropriate person” at Southern with authority to remedy a Title VI violation had

actual knowledge of the retaliatory conduct and responded to it with deliberate

indifference.84 Southern maintains that Plaintiff’s own allegations belie her claim under

Title VI. First, the employees of Southern are not the “appropriate persons” subject to

Title VI liability as a matter of law. Second, the law requires that someone other than

the alleged wrongdoer(s) knew of the retaliation and refused to act.85 Plaintiff has failed,

80 Id. (citing Peters, 327 F.3d at 320; see also Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th

Cir. 2001) (retaliation under Age Discrimination in Employment Act)).

81 Id. (citations omitted).

82 Id. (citing Manning v. Chevron Chemical Co., 332 F.3d 874, 883 (5th Cir. 2003), cert. denied, 540 U.S.

1107, 124 S.Ct. 1060, 157 L.Ed.2d 892 (2004)).

83 Price v. Housing Authority of New Orleans, No. 01-3016, 2003 WL 22038409 at *2 (citing Jackson v. Katy

Independent School Dist., 951 F.Supp. 1293, 1298 (S.D.Tex.1999)).

84 Rec. Doc. No. 72 at 2 (quoting e.g., Doan v. Bd. of Sup’rs of La. State Univ., No. 17-3471, 2017 WL

4960266, at *2 (E.D. La. Nov. 1, 2017); Kirk v. Monroe City Sch. Bd., No. 17-1466, 2018 WL 4292355, at

*9 (W.D. La. Aug. 24, 2018) (applying the same test to retaliation claims under Title VI), report and

recommendation adopted, No. 17-1466, 2018 WL 4291750 (W.D. La. Sept. 7, 2018), appeal filed, Oct. 9,

2018.)(internal quotation marks omitted).

85 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998).

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twice, to identify such an actor who refused to act on her behalf.

Rather, Plaintiff’s allegations demonstrate that Southern formed a committee to

investigate her complaints;86 Southern provided Plaintiff with a human resources

representative for every meeting with allegedly hostile professors;87 the committee chair

assured Plaintiff that the actions taken against her by the professor-defendants would

not be upheld;88 Vice Chancellor Ammons ensures that Plaintiff remained enrolled in

classes pending her grievance appeal;89 and Ammons sided with Plaintiff and

overturned the actions taken by professors, allowing her to graduate and earn her

degree.90 Furthermore, Plaintiff alleges that those faculty members who retaliated

against her were demoted, have resigned, or are otherwise no longer employed by

Southern.91

Accordingly, Plaintiff’s allegations, which the Court accepts as true at this stage

of litigation, undermine any suggestion that Southern responded to her complaints with

“deliberate indifference.” Indeed, Plaintiff alleges the contrary as she successfully

appealed the actions taken against her, and Southern protected her rights throughout

the process. Plaintiff’s Title VI retaliation claim against Southern is dismissed with

prejudice.

86 Rec. Doc. 16, p. 19, ¶¶ 52–53.

87 Id., ¶¶ 116–17.

88 Id., ¶¶ 123–25.

89 Id., ¶¶ 139–42, 169, 171–73.

90 Id., ¶¶ 177–78, 190.

91 Id., ¶¶ 163, 192.

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E. ADA Retaliation Claim

Plaintiff also asserts a retaliation claim under the ADA. The ADA provides, in

relevant part, that “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such

entity.”92 The ADA also protects individuals from retaliation for opposing any act that is

illegal under the ADA or for participating in any investigation, proceeding or hearing

under the ADA.93 The elements of a retaliation prima facie case are: 1) a protected

activity; 2) an adverse action; and 3) a causal connection between the two.94

Not only has Plaintiff wholly ignored these elements, her allegations demonstrate

that any alleged retaliatory conduct was later reversed by Southern. As set forth above,

Plaintiff’s rights were protected by Southern as she appealed her grievance, every action

of which she complained was reversed, and Plaintiff ultimately graduated from Southern

with a degree in her field of study. The Court agrees with Southern that Plaintiff suffered

no adverse action for purposes of this claim where all initial adverse actions were

reversed or unimplemented.95 Accordingly, Plaintiff’s ADA retaliation claim is dismissed.

92 42 U.S.C. § 12132.

93 42 U.S.C. § 12203.

94 Ariel B. et rel. Deborah B. v. Fort Bend Independent School Dist., 428 F.Supp.2d 640, 665 (S.D. Tex.

2006)(citation omitted).

95 See e.g., Cole v. City of Port Arthur, No. 13-176, 2014 WL 3513366, *10 (E.D. Tex. July 16, 2014);

Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009); Ariel B., 428 F.Supp.2d at 666.

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III. CONCLUSION

Accordingly, Southern’s Superseding Motion to Dismiss Under Rules 12(b)(1)

and (6)96 is GRANTED. Plaintiff’s claims against Southern are dismissed with prejudice.

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

96 Rec. Doc. No. 24.

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