Hardison v. Skinner

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

GWENDOLYN ANTEE HARDISON CIVIL ACTION NO. 1:18-CV-00119

VERSUS JUDGE DAVID C. JOSEPH

DALE SKINNER, ET AL MAGISTRATE JUDGE JOSEPH

PEREZ-MONTES

MEMORANDUM RULING

Pending before the Court are a Motion for Summary Judgment [Doc. 41] filed

by Defendants, the Natchitoches Parish School Board (“NPSB”) and Dale Skinner

(“Skinner”), and a Motion to Strike Declaration of Linda Page (the “Motion to Strike”)

[Doc. 46] filed by Plaintiff, Gwendolyn Antee Hardison (“Hardison”). For reasons

which follow, Defendants’ Motion for Summary Judgment is GRANTED. The Motion

to Strike is DENIED.

BACKGROUND

Hardison, an African American female, was employed by the NPSB as the

Director of Federal Programs from November 13, 2003 until January 27, 2016 [Doc.

47-2 ¶ 2]. In this position, Hardison supervised the administration of various federal

programs in Natchitoches Parish, including the Migrant Education Program (“MEP”)

[Doc. 1 ¶ 5].

Every three years, the Louisiana Department of Education (“LDOE”) engages

independent third-party consultants to interview families receiving financial aid

through the MEP in order to ensure that the recipients satisfy the program’s

eligibility requirements [Doc. 41-1 ¶ 6]. In April of 2015, the LDOE’s review of MEP

recipient families in Natchitoches Parish revealed a high number of ineligible

families receiving migrant assistance “due to the use of tactics and interview

practices intended to qualify otherwise ineligible families, such as falsifying qualified

work activities, using dates for ineligible moves and forging parent/guardian

signatures” [Doc. 41-1 ¶¶ 7-8]. Consequently, the LDOE informed the School Board

that it would conduct an audit of the NPSB’s MEP records for the 2013-2014 and

2014-2015 school years [Doc. 41-4]. The audit revealed that over 60 percent of the

families receiving financial aid were ineligible [Doc. 41-6 p.4], ultimately requiring

the NPSB to reimburse the LDOE a total of $79,842.41 [Doc 41-1 ¶ 21].

On August 10, 2015, Skinner, the superintendent of the NPSB, placed

Hardison on administrative leave with full pay and benefits pending completion of

the investigation into mismanagement of the MEP [Doc. 47-2 ¶ 24]. Defendants

allege that Skinner thereafter requested that the LDOE perform a complete audit of

all federal programs under Hardison’s administration in light of the apparent

mismanagement of the MEP program [Doc. 60 ¶ 37]. Following the completion of this

audit, the LDOE informed the NPSB of problems in other federal programs under

Hardison’s supervision [Doc. 41-1 ¶ 31]. On February 8, 2016, after consulting with

legal counsel, Hardison decided to retire and submitted a formal letter of resignation

through her attorney to the NPSB’s Director of Personnel, Linda Page (“Page”) [Doc.

41-3 ¶ 14]. The record does not indicate that Hardison made any allegations of

discrimination at this time.

Prior to her placement on administrative leave, Hardison alleges that Skinner

unfavorably treated her in the following manners: (1) he asked her if she was going

to resign or be terminated from employment on at least five occasions; (2) he denied

her the right to participate in internal audits; (3) he prevented her from attending

staff meetings to discuss concerns with federal programs; (4) he failed to grant her

request for additional staff; (5) he yelled at and humiliated her in front of other NPSB

employees; and (6) he prevented her from accessing her work computer and

communicating with other NPSB employees [Doc. 47-1 p.6-7]. Hardison alleges that

other similarly situated non-minority employees did not experience such unfavorable

treatment [Id.].

Hardison initiated this action on January 31, 2018, to recover for racial and

gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”)1

and Louisiana’s Employment Discrimination Law (“LEDL”)2 [Doc. 1]. She further

seeks recovery under 42 U.S.C. § 1983 (“§ 1983”) and Louisiana’s Teacher Tenure

Law3 on the ground that Defendants constructively discharged her without due

process of law [Id.]. In addition, Hardison asserts claims under Louisiana state law

for intentional infliction of emotional distress and defamation [Id.].

Defendants filed this Motion for Summary Judgment, contending that

Hardison’s claims should be dismissed with prejudice. In support of their Motion,

Defendants submitted the declarations of Linda Page [Doc. 41-3] and

1 42 U.S.C. § 2000e, et seq.

2 Louisiana Revised Statutes 23:301, et seq.

3 Louisiana Revised Statutes 17:441, et seq.

Superintendent Dale Skinner [Doc. 60]. In response, Hardison filed an Opposition

[Doc. 47] supported by her own declaration [Doc. 47-3]. Additionally, Hardison filed

the Motion to Strike, asserting that Page lacks personal knowledge with respect to

many statements made in her declaration.

PLAINTIFF’S MOTION TO STRIKE

The Court will first address Hardison’s Motion to Strike. Hardison moves the

Court to strike substantial portions of Page’s declaration based primarily on her

perception that Page lacks personal knowledge regarding the subject matter asserted.

Rule 56(c)(2) of the Federal Rules of Civil Procedure permits a party to object to

summary judgment evidence when the material cited to support or dispute a fact

cannot be presented in a form that would be admissible in evidence.4 See Lee v.

Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017). (“[T]he new

rule allows a party to object ‘that the material cited to support or dispute a fact cannot

be presented in a form that would be admissible as evidence.’”); Cutting Underwater

Technologies USA, Inc. v. Eerie U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012)

(“Prior to December 1, 2010, the proper method by which to attack an affidavit was

by filing a motion to strike.”). Accordingly, the Court treats the pending Motion to

Strike as an objection to the relevant portions of the affidavit.

Rule 56 allows a party to use an affidavit to support or oppose a motion for

summary judgment. See Fed.R.Civ.P. 56(c)(1)(A). Such affidavits, however, “must

4 See also Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendments (“There is no

need to make a separate motion to strike. If the case goes to trial, failure to challenge

admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility

at trial.”).

be made on personal knowledge, set out facts that would be admissible in evidence,

and show that the affiant ... is competent to testify on the matters stated.” Id. 56(c)(4).

The Fifth Circuit has held that an official title alone is sufficient to indicate a basis

of personal knowledge when that title clearly identifies the official’s sphere of

responsibility and the facts stated in the affidavit are within that sphere. Cutting

Underwater Technologies, 671 F.3d at 516 (quoting Rutledge v. Liab. Ins. Indus., 487

F.Supp. 5, 7 (W.D. La. 1979)).

In her declaration, Page articulates her job duties as Director of Personnel and

demonstrates a direct involvement in the contested matters. Hardison has not

provided any compelling reasons or evidence for the Court to disregard Page’s

testimony. Therefore, the Court overrules Hardison’s objections and gives the

statements made in Page’s declaration the weight they are due.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

A. Summary Judgment Standard

Summary judgment is appropriate when, viewing the evidence in the light

most favorable to the non-movant, the court determines “that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). A fact is “material” if proof of its existence or nonexistence

would affect the outcome of the lawsuit under applicable law in the case. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A

dispute of material fact is ‘‘genuine’’ if the evidence would allow a reasonable jury to

find in favor of the non-movant. Id. “[A] party seeking summary judgment always

bears the initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,’ which it

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The motion for

summary judgment should be granted if the non-moving party cannot produce

sufficient competent evidence to support an essential element of its claim. Condrey

v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005).

“In an employment discrimination case, [the Fifth Circuit] focus[es] on whether

a genuine issue exists as to whether the defendant intentionally discriminated

against the plaintiff.” LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 447 (5th Cir.

1996). Unsubstantiated assertions, conclusory allegations, and speculation are

insufficient to satisfy the plaintiff’s burden. Grimes v. Texas Dept. Of Mental Health

and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). In response to a motion

for summary judgment, it is therefore incumbent upon the non-moving party to

present evidence – not just conjecture and speculation – that the defendant

discriminated against the plaintiff on the basis of the protected characteristic in

question. Id.

B. Title VII and LEDL Claims for Race and Gender Discrimination

Based on the alleged manners in which Skinner unfavorably treated her prior

to her resignation, Hardison asserts that Defendants discriminated against her due

to her race and gender in violation of Title VII and LEDL. Both Title VII and LEDL

prohibit employers from discriminating based on “race, color, religion, sex or national

origin.” 42 U.S.C. § 2000e–2(a)(1); La. Rev. Stat. Ann. § 23:332. As Title VII and

LEDL share the same scope, claims under LEDL are analyzed under the Title VII

framework and jurisprudential precedent. See DeCorte v. Jordan, 497 F.3d 433, 437

(5th Cir. 2007).

When there is no direct evidence of discrimination, as in this case, courts apply

the burden-shifting test established by McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802–04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to determine whether an employer

is liable for employment discrimination under Title VII. See Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 142; 120 S.Ct. 2097, 2106; 147 L.Ed.2d 105

(2000) (McDonnell Douglas and subsequent decisions have “established an allocation

of the burden of production and an order for the presentation of proof in ...

discriminatory-treatment cases.”). First, the plaintiff must establish a prima facie

case of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds,

the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason

for its actions. Id. Finally, if the employer offers such a justification, the burden

shifts back to the plaintiff, who can then attempt to demonstrate that the defendant’s

proffered reason is merely a pretext for discrimination. Id. at 804. Ultimately, the

burden of persuasion that the defendant intentionally discriminated against the

plaintiff remains at all times with the plaintiff. Black v. Pan Am. Labs., L.L.C., 646

F.3d 254, 259 (5th Cir. 2011) (“The employer’s burden is one of production, not

persuasion, and does not involve a credibility assessment.”).

i. Prima Facie Case

A plaintiff can establish a prima facie case of employment discrimination by

proving the following: (1) he is a member of a protected class; (2) he was qualified for

the position at issue; (3) he was the subject of an adverse employment action; and (4)

he was treated less favorably because of his membership in that protected class than

were other similarly situated employees who were not members of the protected class,

under nearly identical circumstances. Paske v. Fitzgerald, 785 F.3d 977, 984–85 (5th

Cir. 2015) (citing McDonnell Douglas, 411 U.S. at 802).

Defendants only dispute Hardison’s ability to establish the third element,

contending that Hardison’s prima facie case fails because she suffered no adverse

employment action. Hardison maintains that she suffered an adverse employment

action by virtue of (1) material changes in job duties and (2) a constructive discharge

from employment.

a. Material Changes in Job Duties

With respect to her first argument, Hardison claims that the denial of her

ability to participate in internal audits, attend staff meetings regarding federal

programs, and hire additional staff, as well as her placement on administrative leave,

materially changed her job duties so as to constitute an adverse employment action.

The Court disagrees.

For Title VII discrimination claims, an adverse employment action implicates

an “ultimate employment decision,” such as hiring, firing, demoting, promoting,

granting leave, and compensating. McCoy v. City of Shreveport, 492 F.3d 551, 560

(5th Cir. 2007); Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir. 2007); Pegram

v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). The mere loss of some job

responsibilities does not constitute an adverse employment action. Thompson v. City

of Waco, Texas, 764 F.3d 500, 504 (5th Cir. 2014).

Defendants argue that the scope of an “ultimate employment decision” as

contemplated by the Fifth Circuit does not encompass trivial decisions pertaining to

participation in internal audits, attendance at staff meetings, and additional staff

requests. Hardison attempts to rebut this argument by relying upon several cases

wherein the Fifth Circuit held an adverse employment action occurred when the

plaintiff lost some job responsibilities after being transferred or demoted.5 The Court

finds these cases distinguishable from the present action. Although Hardison may

have experienced a change in some job responsibilities, this change did not occur in

the context of a transfer, demotion, or reassignment. Rather, Hardison retained her

position as Director of Personnel until her resignation and has not presented any

evidence of a material change that rises to the level of an ultimate employment

decision.

Regarding Hardison’s administrative leave, Defendants cite to two cases for

the proposition that administrative leave is not an adverse employment action:

McCoy v. City of Shreveport and Breaux v. City of Garland. In McCoy, the Fifth

Circuit affirmed the district court’s holding that “placing [the plaintiff] on paid leave

5 See Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir. 2014); Alvaredo v. Tex.

Rangers, 492 F.3d 605 (5th Cir. 2007); Pegram v. Honeywell, Inc., 361 F.3d 272 (5th Cir. 2004);

Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757 (5th Cir. 2001); Forsyth v. City of Dall., 91

F.3d 769 (5th Cir. 1996).

– whether administrative or sick – was not an adverse employment action.” 492 F.3d

at 559. Likewise, the Fifth Circuit held in Breaux that the placement of a police

officer on paid administrative leave was not adverse employment action. 205 F.3d

150, 158 (5th Cir. 2000). Pursuant to Fifth Circuit precedent, the Court concludes

that Hardison’s placement on paid administrative leave does not constitute an

adverse employment action.

b. Constructive Discharge

In addition, Hardison argues that her voluntary retirement masked a

constructive discharge, which courts recognize as an adverse employment action

under certain circumstances. Hardison bases this argument on the alleged multiple

occasions that Skinner asked her if she was going to retire or be terminated and on

Skinner’s alleged harassment of her. Specifically, Hardison claims that she

experienced severe harassment and humiliation when Skinner disrupted one of her

meetings and, on another occasion, kicked her out of a federal programs meeting [Doc

47-1 p. 2-4].

A constructive discharge occurs when the employer renders working conditions

“so intolerable that a reasonable employee would feel compelled to resign.” Stover v.

Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008) (quoting Brown v.

Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)). In determining whether a

reasonable employee would feel compelled to resign, the court considers the following

factors:

(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.

Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 338 (5th Cir. 2014).

Defendants argue that Hardison’s unsubstantiated allegations of harassment

and threats of termination do not meet the standard for constructive discharge. The

Court agrees. Even construing these six factors in a light most favorable to Hardison,

she has failed to demonstrate that her employment conditions were so objectively

intolerable that a reasonable employee would have felt compelled to resign. During

her leave, Hardison was not demoted, and her salary and benefits remained

unchanged. She received a writing from the NPSB indicating that her administrative

leave would only last until resolution of the investigation into MEP mismanagement.

However, Hardison resigned before the resolution of Defendants’ investigation.

Notably, Hardison states in her Complaint that she sought counsel before

deciding to resign [Doc. 1 ¶ 26]. After consultation regarding her circumstances and

options, her attorney advised her to “go back to work for two weeks and then retire.”

[Id.]. The record does not indicate that the letter of resignation drafted by Hardison’s

attorney contained any allegations of discrimination, harassment, or humiliation—

undermining Hardison’s subsequent claim that she resigned because of this type of

conduct.6

6 As would be expected, Plaintiffs alleging constructive discharge often express allegations

of discrimination, harassment, and humiliation to their employers prior to or in their letters of

resignation. See, e.g., Walker v. Thompson, 214 F.3d 615, 622 (5th Cir. 2000) (“[Plaintiff]

contacted an attorney…regarding the racial discrimination and harassment she perceived…[Her

attorney] sent [Plaintiff’s employer] a letter that summarized [Plaintiff’s] complaints…and made

it clear that [Plaintiff] did not want to resign or take legal action but instead wanted the illegal

Additionally, other than Skinner allegedly disrupting one of her meetings and

asking her to leave a federal programs meeting, Hardison has otherwise failed to set

forth specific instances of harassment that rendered her work environment

objectively intolerable. Accordingly, the Court concludes that there is no genuine

issue concerning Hardison’s voluntary resignation. Due to Hardison’s inability to

establish a prima facie case of race and gender discrimination, the Court dismisses

Hardison’s Title VII and LEDL claims with prejudice.

ii. Employer’s Legitimate, Non-discriminatory Reason

Even assuming arguendo that Hardison could establish a prima facie case of

race and gender discrimination, summary judgment is nonetheless appropriate

because Hardison failed to create a genuine issue of pretext.

Defendants submit the declarations of Linda Page [Doc. 41-3] and Defendant

Dale Skinner [Doc. 60] along with multiple exhibits evidencing their communications

with the LDOE to demonstrate that any alleged adverse employment action was

made in connection with the LDOE’s investigation into MEP discrepancies. This

evidence indicates that Hardison was placed on administrative leave only after the

LDOE’s independent audit revealed discrepancies in the management, oversight, and

operations of the MEP and a need for the NPSB to reimburse the LDOE almost

$80,000. Considering this, the Court finds that investigation into misconduct that

conduct to cease.”); Rayborn v. Bossier Par. Sch. Sys., 198 F.Supp.3d 747, 756 (W.D. La. 2016),

aff’d sub nom., Rayborn v. Bossier Par. Sch. Sys., 881 F.3d 409 (5th Cir. 2018) (Plaintiff’s letter of

resignation “contained allegations of…retaliation, harassment, and humiliation”); Dhillon v.

Lincare Inc. of Delaware, CIV.A. 06-1822, 2008 WL 2920259, at *3 (W.D. La. June 19, 2008)

(“[Plaintiff] typed a letter of resignation…to the Human Resources Department, which set forth

her complaints of harassment”).

had taken place in a federal program under Hardison’s supervision is a legitimate,

non-discriminatory reason for placing her on administrative leave.

The burden then shifts to Hardison to present evidence that the Defendants’

non-discriminatory reason is a pretext for race and gender discrimination. To

establish pretext, the plaintiff must present evidence rebutting each of the

nondiscriminatory reasons the employer produces. Haire v. Bd. of Sup’rs of Louisiana

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

establish pretext by showing that her employer’s justification is false or that a

discriminatory motive more likely motivated her employer’s decision, such as through

evidence of disparate treatment. Id. In order to survive a motion for summary

judgment, a plaintiff must produce substantial evidence of pretext. Auguster v.

Vermilion Parish School Board, 249 F.3d 400, 402–403 (5th Cir. 2001) (emphasis

added).

Hardison asserts that Defendants’ justification is false because she was not

responsible for the discrepancies revealed in the MEP independent audit and any

mismanagement did not fall within the scope of her job duties. Rather, she maintains

that the LDOE is responsible for training interviewers of prospective MEP families

with respect to techniques and eligibility requirements. However, Hardison does not

present any evidence regarding Defendants’ knowledge of the extent of her

involvement. Other than her own unsubstantiated testimony denying responsibility

for the revealed mismanagement, Hardison has not offered any evidence from which

a jury could infer that Defendants’ decision to place her on administrative leave was

for a reason other than to investigate problems with her supervision of the NPSB’s

federal programs department.

Significantly, even if the Plaintiff was blameless in the performance of her job

duties, this Court “cannot protect [employees] … from erroneous or even arbitrary

personnel decisions, but only from decisions which are unlawfully motivated.”

Braymiller v. Lowe’s Home Centers Inc., 325 Fed.Appx. 311, 315 (5th Cir. 2009);

Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988); Johnson v.

Acosta, CIV.A. 10-1756, 2011 WL 4381706, at *13 (E.D. La. Sept. 20, 2011). Because

Hardison failed to present substantial evidence of pretext,7 there is not a genuine

issue as to whether Skinner’s decision to place Hardison on administrative leave was

a pretext for racial and gender discrimination. Summary judgment, therefore, is

appropriate.

C. Violations of § 1983 and Louisiana’s Teacher Tenure Law

In order to prevail in a civil rights action under § 1983, the plaintiff must prove

by a preponderance of the evidence that the defendant, acting under color of state

law, deprived the plaintiff of a right secured by the United States Constitution, or a

federal statute, or both. Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003). Hardison

contends that Defendants violated her due process rights under the Fourteenth

Amendment8 of the United States Constitution because she was not afforded the

7 Hardison does not argue that her race or gender was a motivating factor in Defendants’

decision to place her on administrative leave pursuant to the modified McDonnell Douglas

analysis. She only presents arguments as to pretext.

8 The Fourteenth Amendment guarantees that no state shall “deprive any person of life,

liberty or property, without due process of the law.” U.S. Const. Amend. XIV, § 1.

protections for tenured teachers provided in La. R.S. 17:442, the “Louisiana’s Teacher

Tenure Law,” prior to her alleged constructive discharge. Defendants, on the other

hand, move for summary judgment on the ground that Hardison’s voluntary

retirement renders her due process claims moot.

To establish a due process claim, the plaintiff must show that she was deprived

of a constitutionally protected liberty or property interest. Giles v. Shaw Sch. Dist.,

655 Fed.Appx. 998, 1003 (5th Cir. 2016) (citing Wells v. Hico Indep. Sch. Dist., 736

F.2d 243, 251 (5th Cir. 1984)). “State law controls the analysis of whether [the

plaintiff] has a property interest in his employment sufficient to entitle him to due

process protection.” McDonald v. City of Corinth, Tex., 102 F.3d 152, 155 (5th Cir.

1996).

The Fifth Circuit has held that tenured teachers under Louisiana’s Teacher

Tenure Law have a constitutionally protected property interest in continued

employment. See Franceski v. Plaquemines Par. Sch. Bd., 772 F.2d 197, 199 (5th Cir.

1985) (“It is true that [the plaintiff], as a tenured teacher, had a constitutionally

protected property interest in continued employment.”). Defendants do not dispute

that Hardison is a tenured teacher under Louisiana’s Teacher Tenure Law. Thus,

she enjoyed a constitutionally protected property interest in continued employment

and was entitled to the following protections prior to her resignation.

Louisiana’s Teacher Tenure Law provides, in relevant part, the following

protections to certain tenured employees:

A teacher with tenure shall not be disciplined except upon written and

signed charges by the superintendent or his designee of poor

performance, willful neglect of duty, incompetency, dishonesty,

immorality, or of being a member of or contributing to any group,

organization, movement, or corporation that is by law or injunction

prohibited from operating in the state of Louisiana, and then only if

furnished with a copy of such written charges and given the opportunity

to respond. The teacher shall have ten calendar days from written notice

of the charges to respond, in person or in writing.

La. Rev. Stat. Ann. § 17:443. “Discipline” is defined as “suspension without pay,

reduction in pay, or involuntary demotion or dismissal.” La. Rev. Stat. Ann. §

17:441(2).

Because “discipline” as defined in the statute does not include administrative

leave, Defendants were not obligated to provide notice and an opportunity to respond

prior to placing Hardison on leave. However, Hardison maintains that her alleged

constructive discharge constitutes an “involuntary dismissal” and that she was

deprived of these statutory protections when Defendants failed to provide written

notice of the charges against her and an opportunity to respond. The Court finds

that, for the reasons articulated in Part B, supra, Hardison did not suffer a

constructive discharge. Accordingly, the Court dismisses with prejudice Hardison’s

claims for due process violations under § 1983 and Louisiana’s Teacher Tenure Law.

D. Intentional Infliction of Emotional Distress

Defendants further seek dismissal of Hardison’s claims for intentional

infliction of emotional distress (“IIED”). Under Louisiana law, a plaintiff must

establish three elements to recover for IIED: “(1) that the conduct of the defendant

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

was severe; and (3) that the defendant desired to inflict severe emotional distress or

knew that severe emotional distress would be certain or substantially certain to

result from his conduct.” Rayborn v. Bossier Par. Sch. Bd., 881 F.3d 409, 419 (5th

Cir. 2018) (quoting White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991)).

In a workplace setting, the distress suffered by the employee must be “more

than a reasonable person could be expected to endure” due to conduct of a nature “so

outrageous in character, and so extreme in degree, as to go beyond all bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” Id. (citing Nicholas v. Allstate Ins. Co., 756 20.2d 1017, 1028, 1999-2522

(La. 8/31/00)). Recovery for IIED in an employment context is generally limited to

“cases involving a pattern of deliberate, repeated harassment over a period of time.”

Smith v. Amedisys Inc., 298 F.3d 434, 449 (5th Cir. 2002) (citing White, 585 So.2d at

1209).

Plaintiff bases her IIED claim on the following conduct: “[Hardison] was under

close, intense, and constant scrutiny, subjected to disciplinary action and

continuously harassed and told, at least on five occasions that she must resign or be

terminated” [Doc 47-1]. This conduct does not rise to the level of severity

contemplated by Louisiana jurisprudence. Accordingly, the Court finds that

Hardison has failed to show conduct that was extreme, outrageous, or more than a

reasonable person could be expected to endure. Hardison’s claim for Intentional

Infliction of Emotional Distress is dismissed with prejudice.

E. Defamation

Finally, Defendants seek dismissal of Hardison’s defamation claim. To prevail

on a defamation action in Louisiana, a plaintiff must prove the following four

elements: “(1) a false and defamatory statement concerning another; (2) an

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

of the publisher; and (4) resulting injury.” Costello v. Hardy, 03-1146, p. 11 (La.

1/21/04), 864 So. 2d 129, 139. These elements necessarily require a plaintiff to prove

that the defendant acted with actual “malice or other fault” in publishing “a false

statement with defamatory words which caused plaintiff damages.” Sassone v. Elder,

626 So .2d 345, 350 (La.10/18/93).

Defendants contend that Hardison cannot establish a defamation claim

because any alleged statements made are conditionally privileged. In support,

Defendants claim that their allegations in the pleadings were made in good faith

under a reasonable belief that they were true, as Hardison served as the director of a

program under investigation by the LDOE. Hardison, to the contrary, argues that

Defendants lacked good faith because she was not responsible for the MEP

discrepancies.

The key question is whether Defendants lacked a reasonable belief in the truth

of any statements related to Hardison’s role in problems associated with the MEP

and her supervision of the NPSB’s federal programs. Hardison’s actual involvement

in the mismanagement is immaterial.9

9 Additionally, there is precedent under Louisiana law that, “[a]n employer's

communication regarding a subject in which it has an interest or a duty is not considered

The evidence in the record, consisting of communications from the LDOE to

the NPSB, gave Defendants more than a reasonable belief that mismanagement

occurred under Hardison’s supervision. The Court finds that Defendants have

demonstrated that any allegedly defamatory statements against the Plaintiff are

privileged. Accordingly, Plaintiff's claims of defamation are dismissed with prejudice.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

1) Plaintiffs Motion to Strike is DENIED; and

2) Defendants’ Motion for Summary Judgment is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs claims asserted in the Complaint

[Doc. 1] are DISMISSED WITH PREJUDICE.

THUS DONE AND SIGNED in Chambers on this 25* day of September, 2020.

Chord aeaps

DAVID C. JOSEP

UNITED STATES DISTRICT JUDGE

published when made in good faith.” Heflin v. Sabine Ass'n of Retarded Citizens, 96-782 (La. App.

3 Cir. 12/26/96), 685 So. 2d 665, 667.

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