# Miller v. Upper Iowa University

> District Court, W.D. Louisiana · November 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10194562

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** November 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10194562

## How later opinions describe it (automated extraction)

- noting that the anti-retaliation provisions of Title VII are broader than the anti-discrimination provisions

## Opinion text

b
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

JANICE MILLER, ET AL , CIVIL DOCKET NO. 1:19-CV-00039
Plaintiffs

VERSUS

UPPER IOWA UNIVERSITY, MAGISTRATE JUDGE PEREZ-MONTES
ET AL ,
Defendants

MEMORANDUM RULING

Before the Court is a Motion for Summary Judgment filed by Defendant Upper
Iowa University (“UIU”), seeking dismissal of the remaining claims of Plaintiff Laura
Picard (“Picard”). ECF No. 82. Defendant UIU also filed a Motion to Strike portions
of Picard’s Statement of Material Facts. ECF No. 102.
UIU’s Motion for Summary Judgment (ECF No. 82) is GRANTED IN PART as
to Picard’s: (1) gender discrimination claim due to lack of exhaustion; (2) ADEA claim
due to lack of evidence; (3) punitive damages claim; and (4) constructive discharge
claim. Because there are genuine issues of material fact, UIU’s Motion for Summary
Judgment (ECF No. 82) is DENIED IN PART as to Picard’s racial discrimination
claim and retaliation claim. UIU’s Motion to Strike Picard’s Statement of Material
Facts (ECF No. 102) is DENIED.
I. Background
Plaintiff Picard and a co-plaintiff (now dismissed1) filed a complaint against
UIU and individual Defendants, in state court, for violations of Title VII of the Civil
Rights Act of 1964 (P.L. 88-352, 78 Stat. 241 (1964), 42 U.S.C. § 2000e-2); the Age
Discrimination in Employment Act of 1967 (P.L. 90-202, 81 Stat. 602 (1967), 29

U.S.C. § 623); the Louisiana Whistleblower Statute (La. R.S. 23:967); and other
supplemental state law claims. ECF Nos. 1-1, 9. Picard was an adjunct professor
working at the Alexandria, Louisiana campus of UIU. Defendants removed and
alleged federal question jurisdiction under Title VII and supplemental jurisdiction.
UIU is a private university. The named individual Defendants, Bentley,
Adams, Franken, and Duffy, are all employees or contract agents of UIU. Bentley is
the South Central Regional Director of UIU (ECF No. 1-4); Adams was the Director

of Human Resources for UIU (ECF Nos. 1-3); Duffy is the President of UIU (ECF No.
1-5); and Franken is the Vice-President of Enrollment for Enrollment Management
for UIU (ECF No. 1-6).
Picard alleges that, from 2016 through 2018, students, faculty, and staff at the
UIU Alexandria campus were “bullied and intimidated by other students with a
pervasive atmosphere of racial discrimination, intimidation, harassment, and

violence in the workplace.” (ECF No. 9-1). Picard contends the bullies were a group

1 Co-plaintiff Miller and UIU reached a settlement, and Miller’s case was dismissed. ECF
Nos. 82-3 at 1; 98-4 at 1; 112; 113. .
2
of African-American students who were hostile and threatening toward both African-
American and Caucasian faculty. (ECF No. 9-1). Picard further alleges that, when
they brought the problem to the attention of UIU and the individual Defendants, they
were ignored, retaliated against, then constructively terminated. (ECF No. 1-1).
Defendants answered (ECF No. 17). Defendants filed a Motion to Partially

Dismiss (ECF No. 18), which was granted in part, and a Motion to Dismiss
Whistleblower Claims (ECF No. 27), which was denied. All of Picard’s claims against
Bentley, Adams, Franken, and Duffy were dismissed. ECF Nos. 59, 60. Some of
Picard’s claims against UIU were also dismissed–unjust enrichment, defamation,
unsafe work environment/hostile work environment, negligent infliction of emotional
distress, intentional infliction of emotional distress, and invasion of privacy. ECF
Nos. 59, 60.

Picard’s remaining claims against UIU are for: discrimination; retaliation;
failure to maintain whistle-blowing policies; whistle-blowing retaliation; and breach
of contract. ECF No. 1 at 9; No. 9-1. Picard seeks: injunctive relief; back pay; special,
punitive and general damages; attorney’s fees; and costs. (ECF No. 1-1).
UIU filed a Motion for Summary Judgment to dismiss Picard’s remaining
claims. ECF No. 82. UIU also filed a Motion to Strike. ECF No. 102. Picard opposes

those motions.

3
II. Law and Analysis
A. The individual defendants should be terminated on the docket.
All of Picard’s claims against the individual Defendants–Bentley, Adams,
Franken, and Duffy–have been dismissed. Accordingly, Bentley, Adams, Franken,
and Duffy are no longer parties to this action. ECF No. 60.

The Clerk of Court is directed to terminate Bentley, Adams, Franken, and
Duffy on the docket.
B. UIU’s Motion to Strike is denied.
UIU filed a Motion to Strike parts of Picard’s Statement of Material Facts.2
ECF No. 102. UIU contends portion of Picard’s Statement of Material Fact are law
or argument rather than fact, and should be stricken.
A Motion to Strike is governed by Rule 12(f), to strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter. UIU has not identified any part of Picard’s Statement of Material Facts that
fits within one of those categories. UIU contends only that portions of her Statement
of Material Facts are “non-factual.”
Under Rule 56(c)(2), it is not necessary for a party to file a motion to strike in
a motion for summary judgment. Instead, the party may simply object to the

2 Local Rule 56.2, Opposition to Summary Judgment:
Each copy of the papers opposing a motion for summary judgment shall include a
separate, short and concise statement of the material facts as to which there exists a
genuine issue to be tried. All material facts set forth in the statement required to be
served by the moving party will be deemed admitted, for purposes of the motion,
unless controverted as required by this rule.
4
material. Fed. R. Civ. P. 56 advisory committee's note to 2010 amendments
(“There is no need to make a separate motion to strike.”).3
UIU’s Motion to Strike (ECF No. 102) is treated as an objection, and is
DENIED AS MOOT.
C. UIU’s Motion for Summary Judgment is granted in part and denied in
part.

UIU argues that Picard: (1) did not exhaust her administrative remedies for
her age and gender discrimination claims; (2) cannot show but-for causation on her
age discrimination claim; (3) lacks direct evidence to support her claims of age, race,
and gender discrimination and of retaliation; (4) cannot prove discrimination based
on disparate treatment, pretext, or incredibility; (5) cannot establish retaliation by
the individual Defendants; (6) is precluded from claiming punitive damages; (7) has

3 671 F.3d
512, 515 (5th Cir. 2012); 2021 WL
935431, at 209, n. 3 (5th Cir. 2021); , 2020 WL 5121362,
at *3, n. 1 (M.D. La. 2020), aff’d, 2021 WL 1537452 (5th Cir. 2021) (“longstanding federal
practice” “disfavors motions to strike submitted at summary judgment,” recommending
instead “objections to evidence offered in support of or in opposition to motions for summary
judgment in conjunction with the actual motion for summary judgment”);
489 F. Supp. 3d 536, 542 (W.D. La. 2020), , Doc. No. 20-30643 (5th Cir.
10/16/20); , 2019 WL 1965855, at *1 (W.D. La. 2019) (under Rule 56(c)(2),
“there is no need . . . to file a separate motion to strike;” “[n]evertheless, a court may . . . treat
the motion to strike as an objection”);
, 2020 WL 97162 at *1 (M.D. La. 2020) (denying Defendant’s Motion to Strike
Plaintiff’s Statement of Material Facts, noting its objections and stating, “In ruling on
summary judgment, the Court does not consider arguments and legal conclusions couched as
facts.”); 2019 WL 2213915, at *3 (W.D. La. 2019);
2016 WL 660119, at *2 (W.D. La. 2016), , 751
Fed. Appx. 404 (5th Cir. 2018).
5
a baseless constructive discharge claims; and (8) lacks sufficient evidence to support
her whistle-blower claim.
1. Standards governing the Motion for Summary Judgment
generally.

Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Paragraph
(e) of Rule 56 also provides the following:
If a party fails to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by Rule 56(c), the
court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials--
including the facts considered undisputed--show that the movant is
entitled to it; or
(4) issue any other appropriate order.4

“A genuine dispute of material fact exists ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”
, 820 F.3d 767, 771 (5th Cir. 2016) (quoting
, 477 U.S. 242, 248 (1986)). In deciding a motion for summary judgment,
a court must construe all facts and draw all inferences in the light most favorable to

4 Local Rule 56.2W (formerly 2.10W) also provides that all material facts set forth in a
statement of undisputed facts submitted by the moving party will be deemed admitted unless
the opposing party controverts those facts.
6
the non-movant. , 596 F.3d 260, 266 (5th Cir. 2010). However, a
mere scintilla of evidence is insufficient to defeat a motion for summary judgment.
, 174 F.3d 530, 533 (5th Cir. 1999).
Title VII makes it unlawful “for an employer ... to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
2(a)(1). , 509 U.S. 502, 513 (1993). In a Title
VII claim, the plaintiff must establish a prima facie case that the defendant made an
employment decision motivated by a protected factor.
, 55 F.3d 1086, 1089 (5th Cir. 1995). The defendant bears the burden of
producing evidence that its employment decision was based on a legitimate

nondiscriminatory reason. , 55 F.3d at 1089. The burden then shifts
back to the plaintiff to prove that the defendant's proffered reasons were a pretext for
discrimination. , 55 F.3d at 1089.
The district court must decide which party's explanation of the employer's
motivation it believes. , 509 U.S. at 511. It is not enough
to disbelieve the employer; the factfinder must believe the plaintiff's explanation of

intentional discrimination.

7
2. Picard failed to exhaust her gender discrimination claim, but
exhausted her race and age discrimination claims.

UIU argues that Picard failed to exhaust her administrative remedies as to her
claims of gender and age discrimination. ECF No. 82 at 11. Picard contends that her
claims of gender and age discrimination are related to and “grow out of” her EEOC
complaint of discrimination for race and retaliation. ECF No 98 at 2.
Employment discrimination plaintiffs must exhaust administrative remedies
before pursuing claims in federal court. Exhaustion occurs when the plaintiff files a
timely charge with the EEOC and receives a statutory “notice of right-to-sue.”
, 296 F.3d 376, 378-79 (5th Cir. 2002), cert. den., 537
U.S. 1200 (2003). “Failure to exhaust administrative remedies is not a procedural
‘gotcha’ issue,” but a “mainstay of proper enforcement of Title VII remedies.”
, 519 F.3d 264, 272 (5th Cir. 2008), cert. den., 555
U.S. 881 (2008). “The charge enables the EEOC to investigate and, if appropriate,
negotiate a resolution with an employer.” Only after administrative
remedies are exhausted may an employee file suit against his employer. ; 42

U.S.C. § 2000e–5(b). “A Title VII plaintiff's failure to exhaust her administrative
remedies is not a jurisdictional bar but rather a prudential prerequisite to suit.”
, 893 F.3d 300, 305 (5th Cir. 2018), aff’d, 139 S. Ct. 1843
(U.S. 2019) (citing , 906 F.2d 177, 180 (5th Cir. 1990);
, 864 F.2d 1212, 1213 (5th Cir. 1989)).

8
The scope of an EEOC charge should be liberally construed for litigation
purposes because Title VII “was designed to protect the many who are unlettered and
unschooled in the nuances of literary draftsmanship.” , 519 F.3d at 273
(quoting 431 F.2d 455, 465 (5th Cir. 1970)). The
“primary purpose of Title VII is to trigger the investigatory and conciliatory

procedures of the EEOC, in [an] attempt to achieve non-judicial resolution of
employment discrimination claims.” , 519 F.3d at 273 (quoting
448 F.3d 783, 788–89 (5th Cir. 2006), cert. den., 549 U.S. 888 (2006)).
To reconcile these policies, the United States Fifth Circuit Court of Appeals
construes an EEOC complaint broadly, but in terms of the administrative EEOC
investigation that “can reasonably be expected to grow out of the charge of
discrimination.” , 519 F.3d at 273 (quoting 431 F.2d at 466).

The Fifth Circuit uses a “fact-intensive analysis” of the administrative charge that
looks beyond the four corners of the document to its substance. In sum, a
Title VII lawsuit may include allegations “like or related to allegation[s] contained in
the [EEOC] charge and growing out of such allegations during the pendency of the
case before the Commission.”
Picard filed an EEOC discrimination charge on April 1, 2018. ECF No. 1-2 at

7; No. 82-4; No. 98-1; No. 98-9 at 1. In her complaint, she checked the boxes for

9
discrimination based on race and retaliation.5 ECF No. 82-4; No. 98-1. In the
“Particulars” section, Picard stated that she was discriminated against due to her
race (Caucasian) and retaliated against after reporting to supervisor Cynthia Bentley
that she was being harassed by students. Picard also stated that her classes were
taken from her and given to Black teachers. ECF No. 82-4; No. 98-1; No. 98-9 at 1.

More specifically, a January 2, 2018 letter to the EEOC from Picard, Miller, and
Ashley Nelson (attached to the complaint form)6 states they “are hereby lodging
EEOC complaints” against UIU. ECF No. 82-4; No. 98-9 at 11. In that letter, Picard
notified the EEOC that she was removed from the schedule in retaliation for failing
a few students for plagiarism, and due to her age and race. ECF No. 82-4; No. 98-9
at 11.7
The EEOC did not consider Picard’s complaint, instead issuing a “Notice of

Right to Sue” on September 27, 2018 because it determined that it was “unlikely that
the EEOC [would] be able to complete its administrative processing within 180 days
from the filing” of the complaint. ECF No. 1-2 at 6.

5 Picard testified in her deposition that the EEOC investigator actually filled in the EEOC
charge and Picard digitally signed it. ECF No. 94 at 60.

6 Nelson filed a separate suit against UIU.

7 Picard also stated that she is of Hispanicancestrybut looks Caucasian. ECF No. 82-4; No.
98-9 at 11. In her statement of material facts, Picard states that she is Caucasian. ECF No.
98-13 at VII. Picard’s EEOC complaint form indicates that she is Caucasian. ECF No. 1-2
at 7.

10
UIU argues that Picard failed to allege age and gender discrimination in either
her EEOC complaint form or in the letter to the EEOC attached to the complaint
form.
Picard did not allege gender discrimination on her EEOC complaint form or in
the attached letter to the EEOC. Nor did Picard allege any facts, in her EEOC

complaint and letter, to support a claim of gender discrimination. Because a gender
discrimination claim could not reasonably have been expected to grow out of Picard’s
EEOC charge, Picard did not exhaust the gender discrimination claim.8
Picard also did not allege age discrimination in the EEOC complaint, but
clearly contends Defendants discriminated against her on the basis of her age in her
letter to the EEOC. Because age discrimination is a claim that could reasonably have
been expected to grow out of Picard’s EEOC charge, it is exhausted.

Accordingly, UIU’s Motion for Summary Judgment (ECF No. 82) for lack of
exhaustion is GRANTED IN PART as to Picard’s gender discrimination claim and
DENIED IN PART as to Picard’s age discrimination claim.
3. There are no genuine issues of material fact as to whether Picard
was discriminated against due to age.

Next, UIU contends Picard cannot show but-for causation on her age
discrimination claim, citing , 557 U.S. 167, 165
(2009).

8 It is noted that Picard contends she was replaced by two male and three female adjunct
professors. ECF. No. 99.
11
Picard alleges UIU failed to re-employ her to teach the classes she customarily
taught because of her age. Picard contends she is an “older” Caucasian female.
“The discrimination prohibited by the ADEA is discrimination ‘because of [an]
individual's age,’ 29 U.S.C. § 623(a)(1),9 though the prohibition is ‘limited to
individuals who are at least 40 years of age,’ § 631(a).”

, 517 U.S. 308, 312 (1996). This language does not ban
discrimination against employees because they are aged 40 or older. It bans
discrimination against employees because of their age, but limits the protected class
to those who are 40 or older. , 517 U.S. at 312. The fact that one person
in the protected class has lost out to another person in the protected class is thus
irrelevant, so long as he has lost out , 517 U.S. at
312.

The ordinary meaning of the ADEA's requirement that an employer took
adverse action “because of” age is that age was the “reason” that the employer decided

9 29 U.S.C. § 623(a):
(a) Employer practices
It shall be unlawful for an employer--
(1) to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's age;
(2) to limit, segregate, or classify his employees in any way which would
deprive or tend to deprive any individual of employment opportunities
or otherwise adversely affect his status as an employee, because of such
individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this
chapter.

12
to act. 557 U.S. at 176 (citing 507 U.S. 604,
610 (1993)); 570
U.S. 338, 350 (U.S. 2013). Thus, “[t]o establish a disparate-treatment claim under
the plain language of the ADEA ... a plaintiff must prove that age was the ‘but-for’
cause of the employer's adverse decision.”

, 755 F.3d 347, 351 (5th Cir. 2014) (quoting 557 U.S. at 176). “[T]he
prima facie case requires ‘
. . .’”10
, 517 U.S. at 312 (
, 431 U.S. 324, 358 (1977)).
In her statement of material facts, Picard alleges only that her classes and her
senior projects were given to “younger African Americans.” UIU has shown Picard’s

age was 51 in 2017-2018, so she is in the protected class. UIU also provided the ages
of all but one of the teachers who she alleges replaced her: Ms. Calbert was 51 years
old in 2017-18; Ms. Graham was 56 years old in 2017-18, Mr. Ivory was 47 years old
in 2017-18, and Ms. Manuel was 47 years old in 2017-18. Mr. Hebert’s age is not
provided.
Calbert, Graham, Ivory, and Manuel are all in the protected “over 40” class

with Picard. However, because the ADEA prohibits discrimination on the basis of

10 In the age-discrimination context, such an inference cannot be drawn from the replacement
of one worker with another worker insignificantly younger. , 517 U.S. at 313.
13
age and not class membership, the fact that a replacement is substantially younger
than the plaintiff is a far more reliable indicator of age discrimination than is the fact
that the plaintiff was replaced by someone outside the protected class. ,
517 U.S. at 313.
Two of the replacement teachers were younger than Picard by 4 years. One

was the same age, and one was 5 years older than Picard. The age differences are too
slight to create an inference that Picard was not re-employed because she is “older.”
“Summary judgment is proper when, viewed in the light most favorable to the
non-moving party, the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact.” , 916 F.2d
977, 978 (5th Cir. 1990) (citing S 866 F.2d 135, 137 (5th

Cir.1989); 770 F.2d 556, 576 (5th Cir.1985); Fed. R. Civ. P.
56(c)). If the movant meets its burden by demonstrating the absence of a genuine
issue of material fact, then the burden shifts to the opposing “party to demonstrate
through affidavits or other competent evidence that a genuine issue of material fact
exists for trial.” , 916 F.2d at 978 (citing , 866 F.2d
at 137). “Mere allegations or affidavits setting forth ultimate or conclusory facts and

conclusions of law are not enough.” (quoting 770 F.2d at 576). Picard
alleges, but has not shown, that “but for” her age she would have been re-employed
to teach her customary law and business classes at UIU.
14
Because Picard has not established causation for her ADEA claim, UIU’s
Motion for Summary Judgment is granted as to Picard’s ADEA claim. Picard’s ADEA
claim is dismissed with prejudice.
4. There are genuine issues of material fact as to whether Picard was
discriminated against due to her race.

UIU contends that Picard’s claim that UIU did not re-employ her due to her
race (Caucasian-Hispanic) should be dismissed.
Title VII makes it unlawful “for an employer ... to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
2(a)(1). , 509 U.S. 502, 513 (1993). In a Title
VII claim, the plaintiff must establish a prima facie case that the defendant made an
employment decision motivated by a protected factor.
, 55 F.3d 1086, 1089 (5th Cir. 1995).
If the plaintiff lacks direct evidence of discrimination, a court must apply the

burden-shifting framework of , 411 U.S. 792
(1973). , 997 F.3d 275, (5th Cir. 2021) (citing
, 970 F.3d 558, 561 (5th Cir. 2020)). Under that framework, the plaintiff
must first make a case of race discrimination. Then the burden of
production shifts to the defendant to proffer a legitimate, nondiscriminatory reason
for its actions. 2021 WL 1826269, at 281 (citing
15
, 840 F.3d 212, 216 (5th Cir. 2016)). If the defendant does that, “the
presumption of discrimination disappears,” and the plaintiff “must . . . produce
substantial evidence indicating that the proffered legitimate[,] nondiscriminatory
reason is a pretext for discrimination.”
To make a case of race discrimination, Picard must show that: (1)

she belongs to a protected group; (2) she was qualified for her position as adjunct
professor; (3) she suffered an adverse employment action; and (4) a similarly situated
employee outside of her protected group was treated more favorably.
2021 WL 1826269, at *3 (citing , 492 F.3d
589, 593 (5th Cir. 2007)).
If the plaintiff makes a case of racial discrimination, the defendant
bears the burden of producing evidence that its employment decision was based on a

legitimate nondiscriminatory reason. , 55 F.3d at 1089. The burden
then shifts back to the plaintiff to prove that the defendant's proffered reasons were
a pretext for discrimination. , 55 F.3d at 1089. If the defendant offers
a legitimate nondiscriminatory reason for its action the presumption of
discrimination derived from the plaintiff’s case “simply drops out of the
picture,” and “the ultimate question is discrimination .” , 55

F.3d at 1090.
The district court must decide which party's explanation of the employer's
motivation it believes. , 509 U.S. at 511. It is not enough
16
to disbelieve the employer; the factfinder must believe the plaintiff's explanation of
intentional discrimination.
a. Picard is a member of a protected group and was qualified
for a teaching position.

Picard contends she is Caucasian (Hispanic). Picard has shown she was
qualified for her position as adjunct professor: she has a B.S. in business, an MBA,
and a law degree. ECF No. 94 at 2. Moreover, Picard had regularly taught as an
adjunct professor at UIU since 2008, customarily teaching law or business classes.
ECF No. 99, No. I. UIU does not dispute that Picard was not qualified for a teaching
position.
b. Picard alleges an adverse employment action due to racial
discrimination.

Next, Picard must allege that she suffered an adverse employment action
because of racial discrimination. , 590 Fed. Appx. at 339 (citing
714 F.3d 322, 331 (5th Cir. 2013)). An adverse
employment action is one that affects employment or alters the conditions or the
workplace, and typically involves discrete changes in the terms of employment, such
as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant changes in benefits.
524 U.S. 742, 761 (1998) (hostile work environment claim).
Title VII is designed to address ultimate employment decisions that include acts such
as hiring, granting leave, discharging, promoting, and compensating.
17
, 168 F.3d 875, 878 (5th Cir. 1999);
, 601 Fed. Appx. 280, 289 (5th Cir. 2015);
, 590 Fed. Appx. at 339 (citing 492 F.3d 605, 612
(5th Cir. 2007)); 361 F.3d at 282). A contract employee is required to
establish “some causal nexus” between her membership in a protected class and the

decision not to offer her another contract. ,
523 Fed. Appx. 886, 889 (3d Cir. 2013) (the plaintiff, a visiting assistant professor
who was African, and who had very poor student evaluations and had a personality
conflict with the Department Chair), failed to show a causal nexus between her race
and Defendant’s failure to renew her contract, ).
Picard alleges she was discriminated against by Bentley in Session 2 of 2017-
2018, when Bentley, an African-American woman, forced her to teach a senior project

to an aggressive, militant student whom Picard had already failed once. ECF No. 98
at 3. Picard contends she told Bentley she was afraid to teach the student, especially
at night, but Bentley insisted she do so. ECF No. 98 at 3. Picard contends Bentley’s
action, forcing her to teach a threatening student, was a direct act of racial
discrimination against her. ECF No. 98 at 4.
Picard’s allegation that she was forced to teach an unpleasant student at night

does not allege an adverse ultimate employment decision. Nor is it an apparent act
based on race.

18
Picard further alleges (and Ashley Nelson confirms in her affidavit, ECF No.
98-2 at 1-2) that, prior to Session 3 of 2017-2018, Center Director Clark had told
Picard she was going to teach Business Law, but Bentley refused to confirm the
assignment, and instead gave the class to Mr. Ivory, an African American male with
no education in or experience teaching law. ECF No. 98 at 4. Picard contends that,

in the third session, two African American males were assigned to teach the classes
she formerly taught–Mr. Ivory and Mr. Hebert. ECF No. 94 at 43. Picard points out
that neither of them hold a law degree. Picard further contends she was not given
any senior projects to teach in Session 3, although she had taught them “regularly”
for “many years.” ECF No. 98 at 4. Picard contends she was not given senior projects
because she was an older, Caucasian female. ECF No. 98 at 4. Picard contends her
senior projects were reassigned to Ms. Calbert, Ms. Manuel, and Ms. Graham, all

African-American women. ECF No. 94 at 43.
Picard alleges that she “voiced her concerns to UIU upper-level employees in
early December 2017” regarding her lack of classes and senior projects for the third
session. ECF No. 98 at 4-5. On December 13, 2017, Bentley “facilitated” a political
science class for Picard to teach, which Nelson had suggested in November 2017. ECF
No. 98 at 5; No. 82-7 at 5.

Picard showed that she initially contacted the EEOC and made a written
“complaint” on January 2, 2018. ECF No. 82-4 at 19-20; No. 82-4 at 71-78; No. 98-9
at 11-18. Picard was then offered an employment contract at UIU for the third
19
session on January 15, 2018, ten days after the third session had begun. ECF No. 1-
2 at 10-11; No. 98 at 5. Because the class was offered late, after classes had begun,
very few students enrolled. ECF No. 98 at 5. Because of the low enrollment, the class
became a self-study course. Picard considered it to be the first act of retaliation by
Bentley. ECF No. 98 at 5.

On February 27, 2018, Picard wrote a detailed letter to an unidentified person
(apparently to the Higher Learning Commission11), again complaining about the
conditions of, and her loss of, employment at UIU. ECF No. 94 at 95-104; No. 82-7 at
7. Picard contends that, on February 19, 2018, she told Defendant Adams that she
had file an EEOC charge against UIU for discrimination. ECF No. 98 at 6.
Bentley noted in her deposition that she was aware that on, March 13, 2018,
Picard had mailed a letter to the Higher Learning Commission, complaining about

UIU. ECF No. 82-7 at 7.
Picard signed an EEOC discrimination charge on April 1, 2018. ECF No. 1-2
at 7; No. 82-4 at 18.
Picard contends she was not offered any teaching positions for the fourth, fifth,
and sixth sessions of 2017-18. ECF No. 94 at 43, 58-59.
Thus, Picard has alleged an adverse employment decision in UIU’s failure to

renew her teaching contract.

11 The Higher Learning Commission in an independent corporation, founded in 1895, that accredits
degree-granting post-secondary education institutions in the United States.
20
2015 WL 3651546, at *4 (W.D. Tex. 2015) (“District Courts throughout the
Fifth Circuit routinely find that a district’s decision not to renew a teacher’s contract
is an adverse employment action sufficient to establish the third element of the
case of employment discrimination.”) (citing
, 2013 WL 319286, at *3 (S.D. Miss. 2013);

, 2001 WL 1631522, at *3 (N.D. Tex. 2001)).
c. There are genuine issues of material fact as to whether
UIU’s non-discriminatory reason for the adverse
employment action against Picard is pretextual.

Thus UIU “must articulate a nondiscriminatory reason with sufficient clarity
to afford [Picard] a realistic opportunity to show that the reason is pretextual.”
2021 WL 1826269, at *3 (citing ,
798 F.3d 222, 231 (5th Cir. 2015). UIU contends that adjunct professors are employed
on a contract basis, are not guaranteed employment each session, and are not
guaranteed the same classes to teach each session. ECF No. 82-3 at 2-3. UIU
contends that classes are often given to new teachers in order to widen their pool of
teachers. ECF No. 82-7 at 4.
UIU contends Picard did not have a protected interest in employment at UIU.
UIU contends all adjunct professor’s contracts state they may not be employed for
every session. UIU further contends it did not offer Picard teaching contracts because
it was trying to increase its pool of teachers by offering contracts to new teachers.
Defendants show that at least 16 of the 41 adjunct professors in UIU’s Alexandria
21
teaching pool in 2017/2018 were Caucasian, while 9 are listed as African American,
15 are “race and ethnicity unknown,” and one is a Pacific Islander. The teaching pool
does not indicate who was actually employed during each session. Nor has UIU
alleged or shown that Picard’s classes and senior projects were actually given to new
teachers.

To show that UIU’s reason is pretextual, Picard responds this was not a case
in which she simply was not employed in the next sessions (fourth, fifth, and sixth).
Picard contends she had been told by Ashley Nelson that she would teach a business
law class and a constitutional law class shortly before the third session began, as well
as handle several senior projects. However, when Ashley Nelson quit working at UIU
before the beginning of the third session, Cynthia Bentley instead assigned the
classes to Mr. Ivory and Mr. Hebert, and assigned the senior projects other Ms.

Calbert, Ms. Manuel and Ms. Graham.12 Hence, Picard alleges she was removed
from the third session after she had been told she would be teaching.

12 Ms. Calbert has a B.A. in Speech Communications/Public Relations, an M.S. in
Social Work, and work experience as a counselor since 2006. ECF No. 82-9 at 59-61.
M. Manuel has a B.S. in psychology with a minor in chemistry, and an M.S. in
Educational Psychology, and work experience as a counselor since 1998. ECF No.
8209 at 63-64. Ms. Graham has a B.S. in social science and a B.S. in psychology, and
an M.S. in social work, and extensive work experience in social work (1993 to current)
and about two years as a special education teacher. ECF No. 82-9 at 65-68.

22
Picard further contends the five adjuncts who were given her classes and senior
projects were all African-American, and that there was only one Caucasian scheduled
to teach during Session 3. ECF No. 98 at 4.
There are genuine issues of material fact as to whether UIU’s reason for the
adverse employment decisions against Picard is pretextual and whether UIU

discriminated against Picard due to her race. Because there are genuine issues of
material fact, UIU’s Motion for Summary Judgment (ECF No. 82) is DENIED on the
issue of racial discrimination.
5. There are genuine issues of material fact on the issue of retaliation
under Title VII that preclude a summary judgment.

Picard filed an EEOC discrimination charge on April 1, 2018. ECF No. 1-2 at
7; No. 82-4; No. 98-1; No. 98-9 at 1. The EEOC did not consider Picard’s complaint,
instead issuing a “Notice of Right to Sue” on September 27, 2018 because it
determined that it was “unlikely that the EEOC [would] be able to complete its
administrative processing within 180 days from the filing” of the complaint. ECF No.
1-2 at 6.
Title VII prohibits retaliation against employees who engage in protected
conduct,” such as filing a charge of harassment or discrimination.
, 590 Fed. Appx. 332, 341 (5th Cir. 2014), cert. den.,
576 U.S. 1005 (2015) (citing 307 F.3d
318, 325 (5th Cir. 2002)). To state a claim for retaliation in violation of Title VII, the

plaintiff must allege that her employer took an adverse employment action against
23
her in retaliation for engaging in protected conduct. The standard for establishing
an adverse employment action in the retaliation context differs from the standard in
the discrimination context. , 590 Fed. Appx. at 341 (citing
548 U.S. 53, 66–68 (2006) (noting that
the anti-retaliation provisions of Title VII are broader than the anti-discrimination

provisions)). For purposes of a retaliation claim, an adverse employment action is
one that “a reasonable employee would have found . . . materially adverse, which in
this context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” , 548 U.S. at 68. “[T]he significance of
any given act of retaliation will often depend upon the particular circumstances.
Context matters.” , 548 U.S. at 69.
The case for retaliation under Title VII has three elements. The

plaintiff must show that: (1) she engaged in a protected activity; (2) she suffered an
adverse employment action; and (3) a causal connection exists between the protected
activity and the adverse employment action. , 834 Fed.
Appx. 893, 896 (5th Cir. 2020) (citing , 969 F.3d at 577).
d. Protected activity and adverse employment action.
Picard contends she was engaged in a protected activity when she complained

to the UIU upper management, filed an EEOC charge, and complained to the Higher
Learning Commission.

24
Picard alleges she was discriminated against by Bentley in Session 2 of 2017-
2018, when Bentley, an African-American woman, forced her to teach a senior project
to an aggressive, militant student whom Picard had already failed once. ECF No. 98
at 3. Picard contends she told Bentley she was afraid to teach the student, especially
at night, but Bentley insisted she do so. ECF No. 98 at 3. Picard has not alleged an

adverse employment action as to an ultimate employment decision. Instead, she
alleges that she was “forced” to teach an unpleasant student, and was required to do
so at night.
Picard further alleges that, prior to Session 3 of 2017-2018, Ashley Nelson had
“promised” Picard she was going to teach Business Law, but Bentley refused to
confirm the assignment, and instead gave the class to Mr. Ivory, an African American
male. ECF No. 98 at 4. Picard contends that, in the third session, two African

American males were assigned to teach the classes she formerly taught–Mr. Ivory
and Mr. Hebert. ECF No. 94 at 43. Picard points out that neither of them hold a law
degree.
Picard also contends she was not given any senior projects to teach in Session
3, although she had taught them “regularly” for “many years.” ECF No. 98 at 4.
Picard contends her senior projects were given to Ms. Calbert, Ms. Manuel, and Ms.

Graham, all African-American women. ECF No. 94 at 43. Picard contends she had
“taught” senior projects “regularly” for “many years.” ECF No. 98 at 4.

25
Picard contends she “voiced her concerns to UIU upper-level employees in early
December 2017,” regarding her lack of classes and senior projects for the third
session. ECF No. 98 at 4-5. On December 13, 2017, Bentley “facilitated” a class for
Picard to teach, which Nelson had suggested in November 2017. ECF No. 98 at 5.
Picard was offered an employment contract for the third session on January 15, 2018,

ten days after the third session had begun. ECF No. 1-2 at 10-11; No. 98 at 5. This
class became the self-study course. Also, all of the senior projects were also taken
away from Picard in the third session. ECF No. 94 at 43.
On January 12, 2018, Picard filed an EEOC charge. ECF No. 1-2 at 7. On
February 27, 2018, Picard wrote a long and detailed letter to an unidentified person
or organization, again complaining about the conditions of, and loss of, employment
at UIU. ECF No. 94 at 95-104.

Picard contends she was not offered any teaching positions for the fourth, fifth,
and sixth sessions of 2017-18. ECF No. 94 at 43, 58-59.
Thus, Picard has alleged that she engaged in protected activities under the
First Amendment and, as a result, suffered adverse employment actions.
e. Causal connection.
To complete her burden of proof, Picard must also show a causal connection

exists between the protected activity and the adverse employment action.
Title VII retaliation claims must be proved according to traditional principles
of but-for causation.
26
570 U.S. 338, 360 (2013);
, 673 Fed. Appx. 414, 419–20 (5th Cir. 2016). This requires proof that
the unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer. 570 U.S. at 360; ,
673 Fed. Appx. at 419–20. The standard is tied to the challenged retaliatory act, not

the underlying conduct that forms the basis of the Title VII complaint.
, 548 U.S. at 69-70. The focus is on the
materiality of the challenged action and the perspective of a reasonable person in the
plaintiff's position. ., 548 U.S. at 69-
70.
A plaintiff must show “a ‘conflict in substantial evidence’” on the question of
whether the employer would not have taken the adverse employment action but for

the protected activity. , 944 F.3d 557, 561 (5th Cir.
2019) (quoting , 670 F.3d 644, 658 (5th Cir.
2012), ., 568 U.S. 817 (2012)). “Evidence is substantial if it is of
such quality and weight that reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions.” at 561–62.
“At the prima facie case [stage], a plaintiff can meet his burden of causation

simply by showing close enough timing between his protected activity and his adverse
employment action.” , 969 F.3d at 577 (quoting
, 938 F.3d 236, 243 (5th Cir. 2019)). However, “[t]he protected
27
act and the adverse employment action must be very close in time to establish
causation by timing alone.” , 969 F.3d at 577 (quoting
, 810 F.3d 940, 948 (5th Cir.
2015)). In , the United States Fifth Circuit Court of Appeals noted that a
period of two-and-a-half months, , 938 F.3d at 243, a period of two months,

, 427 F.3d 987, 995 (5th Cir. 2005), and a
period of six-and-a-half weeks, , 810 F.3d at 949, are close enough to establish
a causal connection. , 969 F.3d at 578.
The standard is tied to the challenged retaliatory act, not the underlying
conduct that forms the basis of the Title VII complaint. The focus is on the materiality
of the challenged action and the perspective of a reasonable person in the plaintiff's
position. , 548 U.S. at 69-70.

Picard alleges that, in the second session of 2017-2018, Bentley forced her to
teach a senior project to an aggressive, militant student whom Picard had already
failed once. ECF No. 98 at 3. Picard contends she told Bentley she was afraid to
teach the student, especially at night, but Bentley insisted she do so. ECF No. 98 at
3. Picard contends she was “promised” classes in the third session by Ashley Nelson,
but when Nelson left her job, Bentley did not offer Picard the “promised” employment

contracts and did not give Picard any senior projects. ECF No. 94 at 43.13

13 Although UIU contends Picard was removed from the senior projects because it was
discontinuing senior projects, Picard alleges the six senior projects she had been assigned to,
or was to be assigned to, were assigned to other faculty members.
28
Picard contends she “voiced her concerns to UIU upper-level employees” about
possible discrimination in early December 2017. ECF No. 98 at 4-5. On December
13, 2017, Bentley “facilitated” a class for Picard to teach–a class that Nelson had
suggested for Picard in November 2017. ECF No. 98 at 5. Bentley states in her
affidavit that she was told (by either Kathy Franken or Tiffany Adams) that Picard

had complained Bentley had discriminated against her by not selecting her to teach
a course in Session 3. ECF No. 82-7 at 5. Bentley further states in her affidavit that,
in order to show she had not discriminated or retaliated against Picard, she offered
her a political science course in Session 3. ECF No. 82-7 at 5.
However, Picard was not offered an employment contract for the third session
until January 15, 2018, ten days after the third session had begun. ECF No. 1-2 at
10-11; No. 98 at 5. Because the class was offered so late, enrollment was low and it

became a self-study course. ECF No. 98 at 5. Also, all of the senior projects were
taken away from Picard in the third session. ECF No. 94 at 43.
On January 12, 2018, Picard filed an EEOC charge. ECF No. 1-2 at 7. On
February 27, 2018, Picard wrote a detailed letter (according to Bentley’s affidavit, it
appears the letter was to the Higher Learning Commission) complaining about the
conditions of, and loss of, employment at UIU. ECF No. 94 at 95-104; No. 82-7 at 7.

29
Picard was not offered any teaching positions for the fourth, fifth, and sixth sessions
of 2017-18.14 ECF No. 94 at 43, 58-59.
Bentley’s self-proclaimed attempt to show she was not discriminating or
retaliating against Picard, by offering her a class, then putting that class on the
schedule too late for enrollment, appears to have been an empty gesture. ECF No.

82-7 at 5. Although Bentley contends in her affidavit that courses are sometimes
added soon before they are scheduled to start (ECF No. 82-7 at 3), she does not
address the addition of a course after classes start. Moreover, Bentley’s gesture,
offering Picard a class, belies Bentley’s affidavit (EVF No. 8207 at 3-4) and UIU’s
repeated assertion in its brief that Bentley did not select the teaching professors each
session.15 Taking Picard’s senior projects and giving them to other teachers in 2018,
pretending to give Picard a class to teach in 2018 but failing to place it on the schedule

before classes began, and failing to offer Picard a teaching contract ever again, after
her regular employment for ten to eleven years, is all indicative of retaliation against
her for her complaints about Bentley and about UIU in 2018. It appears that, but for

14 Session 4 started on March 9, 2018 and Session 5 started May 14, 2018. ECF No. 82-3 at
9.
15 In her affidavit, Bentley states that she became South Central Regional Director of UIU in
May 2017. Bentley states that the Center Director of each UIU campus is responsible for
recommending adjunct instructors, then the Deans review the recommendations to ensure
they are academically qualified. ECF No. 82-7 at 6. The Center Directors and Regional
Managers collaborate on who will teach courses after they are approved. ECF No. 82-7 at 6.
However, before Session 3 of 2017, the Center Director in Alexandria resigned. ECF No. 82-
7 at 6. Ashley Nelson, the office manager in Alexandria, states in her affidavit that, after the
Center Director resigned, Bentley took over the duties of Center Director in Alexandria at
that time, including employment of adjunct instructors. ECF No. 98-2 at 1-2.
30
Picard’s complaints of discriminatory hiring practices at UIU, Picard would have
been offered further employment contracts at UIU.
Therefore, it appears that Picard taught in most sessions since 2008. Picard
complained in early December 2017, January 12, 2018, and February 27, 2018.
Picard’s session 3 class was not placed on the schedule until January 15, 2018–10

days after classes began and too late to enroll sufficient students for her to teach the
class. Picard was not offered any classes to teach or senior projects after that.
According to Ashley Nelson, Picard was not given any reason for no longer being
offered classes. ECF No. 98-2 at 2.
f. Pretext
In the Fifth Circuit found that the temporal proximity between Brown's
protected activity and her termination was relevant to, but not alone sufficient to

demonstrate, pretext. , 969 F.3d at 579;
, 834 Fed. Appx. 843, 847 (5th Cir. 2020). The court considered
whether other evidence in combination with the temporal proximity was sufficient
for a reasonable juror to find but-for causation. , 969 F.3d at 579.
Picard engaged in protected conduct in complaining about UIU. Picard
contends Defendants retaliated against her by offering her a spurious employment

contract in Session 3, and by not offering her any employment contracts in Sessions
4, 5 and 6. ECF No. 98 at 6.

31
UIU contends Bentley offered Picard a contract to teach a class on January 15,
2018 (ten days after classes had started),16 but that not enough students signed up
for the class. Since the contract to teach was offered, and the class was added to the
schedule, 10 days after classes had already begun, the offer to teach was spurious.
Bentley stated in her deposition that she offered the contract because she did

not want to “retaliate” against Picard for having complained to the UIU upper
management. However, Bentley admitted in her deposition that Picard was not
offered any classes in the fourth, fifth, and sixth sessions of 2017/2018. ECF No. .
The timeline supports a plausible inference of retaliation.
966 F.3d 446, 462 (6th Cir. 2020). Picard’s promised
teaching contracts were not offered and she was removed from senior projects after
she began complaining to UIU upper management. Then she was proffered a

teaching position in the third session to avoid the appearance of retaliation, but that
position never materialized. Picard was not offered any teaching contracts in the
fourth, fifth, and sixth sessions after she filed her EEOC charge and complained to
the Higher Learning Commission.
Therefore, temporal proximity indicates that “but for” Picard’s complaints of
discrimination in December 2017, January 2018 and February 2018, Defendant

would not have retaliated by taking away the work she had been told by Nelson that

16 Picard was offered an employment contract on January 15, 2018 (ECF No. 1-2 at 10-11), to
teach American Constitutional Law I as an adjunct faculty member.

32
she would have in the third session (in January 2018), and by not employing her
again in the following sessions (March and May 2018).
The other evidence of pretext is Bentley’s argument that, as the South Central
Regional Director, she did not recommend or select adjunct instructors because that
was the job of the Center Directors. ECF No. 82-7 at 3-4. However, Nelson contends

in her affidavit that, after the previous Center Director left and before a new one was
hired, Bentley took over the duties of the Center Director. ECF No. 98-2 at 1. Nelson
contends Bentley did not offer Picard any classes and instead gave Picard’s usual
classes to less qualified teachers. ECF No. 98-2 at 2.
Because there are genuine issues of material fact as to whether Picard was
retaliated against for complaining to upper UIU management, filing an EEOC
charge, and complaining to the Higher Learning Commission, UIU’s Motion for

Summary Judgment is DENIED on the issue of retaliation.
6. There are no genuine issues of material fact on the issue of
constructive discharge.
Picard states that she is claiming constructive discharge. ECF No. 94 at 24.
Picard contends she was “constructively let go” because she was not forced to quit and
was not fired, but was “terminated constructively.” ECF No. 94 at 26. Before Session
4, Ms. Miles and Ms. Bentley told Picard there were no positions available for her.
ECF No. 94 at 33.
To prove constructive discharge, a plaintiff must establish that working
conditions were so intolerable that a reasonable employee would feel compelled to
33
resign. , 376 F.3d 386, 397 (5th Cir. 2004),
op. clarified, 2004 WL 2107672 (5th Cir. 2004). A constructive discharge claim is
based on a plaintiff's actual resignation, without which no discharge—constructive or
otherwise—has occurred. , 714 F.3d at 330–31 (citing
237 F.3d 556, 566 (5th Cir.2001), cert. den., 534 U.S. 817 (2001);

10 F.3d 292, 297 (5th Cir. 1994);
903 F.2d 386, 390 (5th Cir. 1990)).
Picard did not resign. And because her employment contracts were each of
limited duration, Picard was not actually discharged. She simply was not offered any
further employment contracts. Therefore, Picard was not constructively discharged.
Because there are no genuine issues of material fact as to whether a
constructive discharge took place, UIU’s Motion for Summary Judgment (ECF No.

82) is GRANTED as to Picard’s constructive discharge claim.
7. There are no genuine issues of material fact that preclude a
summary judgment as to Picard’s whistleblower claim.

Picard alleged in the complaint that Defendants violated UIU’s whistleblower
procedures when they failed to notify her “directly” of their findings after she filed
complaints. ECF No. 1-1 at 7. Although Plaintiffs did not cite the Louisiana
Whistleblower Statute, La. R.S. 23:967, in their petition, they argued in their briefs
in opposition to UIU’s Motion to Dismiss that it is applicable to their case (ECF Nos.
36, 38).
34
The Louisiana Whistleblower Statute provides protection to employees against
reprisal from employers for reporting or refusing to participate in illegal work
practices. 2004–0003 (La. App. 4th Cir.11/3/04), 886
So.2d 1210, 1214, writ den. 2005–0103 (La.3/24/05), 896 So.2d 1036;
, 2005-2377 (La. App. 1 Cir. 6/21/06), 943

So.2d 381, 383. The statute states:
An employer shall not take reprisal against an employee who in good
faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice
that is in violation of state law.
(2) Provides information to or testifies before any public body
conducting an investigation, hearing, or inquiry into any violation
of law.
(3) Objects to or refuses to participate in an employment act or
practice that is in violation of law.

La. R.S. § 23:967(A); , 787 F.3d 322, 326 (5th Cir. 2015).
A violation of La. R.S. 23:967 occurs if (1) the employer violated Louisiana law
through a prohibited workplace practice; (2) the plaintiff advised the employer of the
violation; (3) the plaintiff threatened to disclose or disclosed the prohibited practice;
and (4) the plaintiff experienced a reprisal as a result of the threat to disclose or
because of the disclosure of the prohibited practice.
, 2019-145 (La. App. 1 Cir. 10/14/20), 314 So.3d 861, 870, 2020-
01323 (La. 2/17/21), 310 So.3d 1152 (citing D
2018-0811 (La. App. 1 Cir. 4/12/19), 275 So.3d 911, 926, 2019-00950 (La.
9/24/19), 278 So.3d 977).
35
In order to bring an action under La. R.S. 23:967, the employee must establish
the employer engaged in workplace conduct constituting an actual violation of state
law. See 943 So.2d at 386; , 886 So.2d at 1214;
, 2014-2430 (La. 2/13/15), 158 So.3d 826,
827. A claim under La. R.S. 23:967 requires a violation of state law, not federal law.

2020 WL 5876703, at *5 (W.D. La. 2020)
(citing 115 Fed. Appx. 650, 652 (5th Cir. 2004)).
Picard alleges only violations of federal law, except for her whistleblower claim,
and has not cited or otherwise indicate any violations of Louisiana state law by UIU.
Therefore, there are no genuine issues of material fact that preclude a summary
judgment on this issue. UIU’s Motion for Summary Judgment is GRANTED as to
Picard’s claim under the Louisiana Whistleblower Statute.

8. UIU’s Motion for Summary Judgment as to Picard’s claim for
punitive damages is granted.

UIU contends Picard’s claim for punitive damages under Title VII should be
dismissed, citing , 527 U.S. 526 (U.S. 1999).
In , 527 U.S. at 535-36, the Supreme Court explained that a court may
assess punitive damages in an action under § 1983 or Title VII when the defendant's
conduct is shown to be motivated by evil motive or intent, or when it involves reckless
or callous indifference to the federally protected rights of others. , 527
U.S. at 535-36 (citing v. 461 U.S. 30, 56 (1983)). Although it is
unnecessary to show actual malice to qualify for a punitive award, at 45–48, 103
36
S. Ct. 1625, at a minimum a plaintiff must prove subjective recklessness.
, 527 U.S. at 536 (citing , 461 at 37.) The Supreme Court in
held that an employer must at least discriminate in the fact of a perceived risk that
its actions will violate federal law. , 527 U.S. at 536. Intentional
discrimination will not give rise to punitive damages where the employer is unaware

of the federal prohibition, or believes that its discrimination is lawful. ,
527 U.S. at 536-37.
Also, the plaintiff must impute liability for punitive damages to the employer.
, 527 U.S. at 539-40. Even if particular agents acted with malice or
reckless indifference, an employer may avoid vicarious punitive damages liability if
it can show that it made good-faith efforts to comply with Title VII.
, 731 F.3d 444, 467 (5th Cir. 2013) (citing

527 U.S. at 545–46) (recognizing that implementing programs or policies to
prevent discrimination in the workplace constitutes a good faith effort to comply with
Title VII)).
UIU relies on the fact that it has a written discrimination and retaliation
policies to show that it made a good faith effort to prevent discrimination and
retaliation at UIU. UIU submitted a copy of its “Discrimination and Equal

Employment Opportunity (EEO)” policy, in effect from 2017 to mid-2018, which
includes complaint procedures and a prohibition against retaliation. ECF No. 82-9
at 5-10; ECF No. 82-9 at 2 (affidavit of Abigail Bynum, Compliance Coordinator).
37
UIU also submitted: (1) a copy of its “University Policy: Human Resources Policies:
No. 305–Discrimination, Harassment, and Retaliation Policy” (August 31, 2020
revision) (ECF No. 82-9 at 11-18); (2) excerpts from its Staff and Administration
Handbook as to equal employment opportunity, retaliation, and harassment policies
and complaint procedures, in effect since before 2017 (ECF No. 82-9 at 19-22; 82-9 at

2-affidavit of Abigail Bynum); and (3) the training histories for various employees
(including Cynthia Bentley, Tiffany Adams, Kathy Franken, Karen Jackson, and
Lydia Miles), showing that UIU required its supervisory employees to undergo yearly
video-training as to its policies, including discrimination, harassment, and
retaliation, from 2017 through 2020 (ECF No. 82-9 at 23-58). According to the
affidavit of Abigail Bynum, the current Compliance Coordinator at UIU, training was
also given at UIU before 2017, but those records are no longer available. ECF No.

82-9 at 1-2.
UIU was clearly aware of the federal laws prohibiting discrimination,
harassment and retaliation, adopted policies to incorporate those laws, provided
procedures to address employee complaints for policy violations, and took active steps
to ensure its supervisory and other employees were knowledgeable of those laws and
policies.

Because UIU made good faith efforts to comply with Title VII, it cannot be held
liable for punitive damages for any violations of those policies by its employees with
respect to Picard.
38
Accordingly, Picard’s claim for punitive damages is DENIED and UIU’s Motion
for Summary Judgment (ECF No. 82) is GRANTED IN PART as to Picard’s claim for
punitive damages.
III. Conclusion
Based on the foregoing,

The Clerk of Court is DIRECTED TO TERMINATE Defendants Bentley,
Adams, Franken, and Duffy ON THE DOCKET.

IT IS ORDERED that UIU’s Motion to Strike (ECF No. 102) is DENIED.
IT IS ORDERED that UIU’s Motion for Summary Judgment (ECF No. 82) is
GRANTED IN PART AND DENIED IN PART as follows:

1. UIU’s Motion for Summary Judgment (ECF No. 82) is GRANTED as
to Picard’s gender discrimination claim due to lack of exhaustion.
Picard’s gender discrimination claim is DENIED AND DISMISSED
WITH PREJUDICE.

2. UIU’s Motion for Summary Judgment is GRANTED as to Picard’s
ADEA claim. Picard’s ADEA claim is DENIED AND DISMISSED
WITH PREJUDICE.

3. UIU’s Motion for Summary Judgment (ECF No. 82) is DENIED as to
Picard’s claim of racial discrimination.

4. UIU’s Motion for Summary Judgment (ECF No. 82) is DENIED as to
Picard’s Title VII retaliation claim.

5. UIU’s Motion for Summary Judgment (ECF No. 82) is GRANTED as
to Picard’s claim of constructive discharge. Picard’s constructive
discharge claim is DENIED AND DISMISSED WITH PREJUDICE.

6. UIU’s Motion for Summary Judgment (ECF No. 82) is GRANTED as
to Picard’s claim under the Louisiana Whistleblower Statute.
Picard’s Louisiana Whistleblower Statute claim is DENIED AND
DISMISSED WITH PREJUDICE.
39
7. UIU’s Motion for Summary Judgment (ECF No. 82) is GRANTED as
to Picard’s claim for punitive damages and that claim is DENIED
AND DISMISSED WITH PREJUDICE.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, fis
9th day of November 2021.
sf “ om
Joseph H.L. Perez-Montes
United States Magistrate Judge

40

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10194562. Public record. Not legal advice.