The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RACHEL A. BISHOP CIVIL ACTION NO. 22-1607
VERSUS JUDGE ELIZABETH E. FOOTE
BOARD OF SUPERVISORS OF LOUISIANA MAGISTRATE JUDGE HORNSBY
STATE UNIVERSITY, ET AL.
MEMORANDUM RULING
Before the Court is a motion to dismiss, filed by Defendant Ochsner LSU Health Shreveport,
d/b/a St. Mary Medical Center, L.L.C. (“SMMC”) [Record Document 19]. The motion has been
fully briefed. For the reasons below, Defendant’s motion to dismiss is GRANTED IN PART and
DENIED IN PART.
I. Background
This case arises out of claims of employment discrimination and retaliation. On July 1, 2020,
Plaintiff Rachel Bishop, M.D., (“Dr. Bishop’) enrolled in a Cleft & Craniofacial Surgery fellowship
program at Louisiana State University Medical Center-Shreveport (““LSUHSC-S”). See Record
Document 15 at {J 4, 9. When her fellowship commenced, Dr. Jennifer Woerner (“Dr. Woerner’’),
the Cleft & Craniofacial Surgery Fellowship Program Director, supervised most of Dr. Bishop’s
surgeries. Jd. at § 9-10. Dr. Bishop also worked under the supervision of Dr. G.E. Ghali (“Dr.
Ghali”). Id. At the time, Dr. Ghali was the Chancellor of the LSUHSC-S Medical School and the
Program Chair of the Oral and Maxillofacial Surgery Department. /d. at J 10.
Dr. Bishop alleges during their first meeting, Dr. Ghali “manifested hostile sexism” when
he described her as “‘too pushy’ and ‘loud’ in the presence of other male physicians and told her,
is going to be a long year training you.’” Jd. at J 11. Other “sex-based hostilit[ies]” that Dr.
Bishop avers to have experienced include: 1) the belittling of her and her voice in front of a patient;
2) “physical micro-aggressions such as sternly staring at her, tapping her shoulder, poking in the
stomach, and placing a hand on each of her shoulders and squeezing [them]];]” 3) comments about
women who do not submit to men; and 4) sexually-charged language, especially when describing
interactions with patients.' Jd. at § 12. Dr. Bishop avers that this resulted in upper-level male
residents bullying her and other female residents by “taunt[ing] them, forc[ing] them to work
unreasonable schedules, and with[holding] assistance.” Jd. at § 13.
Plaintiff avers that she and another female resident complained to Dr. Woerner about Dr.
Ghali’s actions; Dr. Woerner reported their claims—and her own—to the Title IX Office of the
Board of Supervisors of Louisiana State University Agricultural and Mechanical College (“the
Board”) in Baton Rouge. Jd. at § 14. Plaintiff maintains that an investigation of these claims
commenced, during which time she provided “oral statements to investigators” regarding her own
experiences and other incidents she had witnessed. Jd. at § 15. Plaintiff represents that Dr. Ghali
continued to make inappropriate comments and spoke poorly about those who complained against
him. Jd. at {J 16-18.
Dr. Bishop alleges that after an executive session before the Board, Dr. Ghali “released a
statement saying that he “received written notice’ that the Title [X investigation was complete and
that it ‘did not find sufficient evidence to support any Title IX concern.’” Jd. at J 21. Plaintiff avers
that she was never provided a status update or written notice of the findings of that investigation.
Id. Plaintiff claims that soon thereafter, Dr. Ghali was “temporarily removed” from his position as
Chancellor after four female employees filed sex discrimination and retaliation complaints about
him with the Equal Employment Opportunity Commission (“EEOC”) and the Louisiana
' For example, Plaintiff claims that Dr. Ghali once described a patient evaluation as being “like
sport fucking. I want to go in, do what I have to do, and not think about it.” Record Document 15
at 12(d).
Commission on Human Rights.’ Jd. at § 22. Dr. Bishop alleges that Dr. Ghali’s supporters began to
exclude her from “student meetings, surgical cases, cleft & craniofacial consults, and discussions.”
Id. at § 24.
Plaintiff represents that Dr. Woerner was placed on administrative leave following the Title
IX investigation. Jd. at § 25. Plaintiff alleges that Dr. David Kim (“Dr. Kim”), Dr. Ghali’s temporary
replacement, informed her that she was to complete the fellowship program under Dr. Ghali’s direct
supervision. /d. at {§ 28-29. Dr. Bishop claims that Dr. Ghali—who knew that she had participated
in the Title [X investigation—did not provide her with a yearly evaluation, continued to make
disparaging comments towards her, and threatened to retaliate against her. /d. at { 30. On June 30,
2021, Plaintiff maintains that she terminated her studies and employment at LSUHSC-S because
she had become “apprehensive, tense[,] and anxious” and was not provided any alternative options
for her education. Jd. at { 31.
On August 10, 2021, Dr. Bishop alleges that she participated in a hearing in federal court
regarding Dr. Woerner’s application for injunctive relief in connection with her EEOC complaint.
Id. at § 32. Approximately three months later, Plaintiff entered private practice, working primarily
at Shriners Hospitals for Children in Shreveport, Louisiana (“Shriners”). Jd. at § 33. Around that
same time, Dr. Bishop filed a complaint with the EEOC alleging sex discrimination and retaliation
against the Board. Jd. at § 34.
At some point, Plaintiff learned that Shriners would no longer be providing inpatient or
outpatient surgeries. Jd. at { 35. However, to continue providing these services and care to its
patients, Shiners developed a partnership with SMMC wherein Shriners’s doctors would be able to
2 It is unclear whether Dr. Bishop is including her own complaint when referencing these four
EEOC complaints against Dr. Ghali.
use the SMMC operating rooms for cleft and craniofacial services. Jd. Dr. Bishop alleges that she
applied for privileges to perform oral and maxillofacial surgery at SMMC. Id. at § 36.
Plaintiff maintains that members of the SMMC Medical Executive Committee review
requests for privileges and make recommendations to the SMMC medical board. /d at § 38.
Plaintiff represents that “most of the members of the SMMC medical staff] are also physicians and
surgeons employed by LSUHSC-S.” Jd. at P 39. Dr. Bishop alleges that Dr. Ghali used his
connections at LSUHSC-S to ensure that her request for privileges was delayed, limited, and then
denied. Jd. at Jf 41-42. Plaintiff further alleges that SMMC took a series of prejudicial and adverse
actions against her, including: 1) requiring a “higher level of skill, experience, and training” than
others who had been granted full privileges; 2) treating her differently than her male counterparts;
3) discussing her sex discrimination complaints during meetings; 4) not considering the
recommendations that were made in her favor; 5) imposing requirements for privileges that were
not listed in SMMC’s bylaws or in its Delineation of Privileges; 6) manipulating the privilege
process to prevent her from appealing the Committee’s decision; 7) denying her the right to a status
update on her pending application; 8) denying her the right to review “all documents, reports,
minutes, and other information relied upon” by the Committee in making its recommendation to
the Board; and 9) refusing to accept any on-call physicians submitted by her. Jd. at J] 42.
Dr. Bishop asserts a series of state and federal claims against the Board and SMMC. Jd. at
14-27. Plaintiff brings five claims against SMMC, which include: 1) conspiracy to discriminate and
retaliate under Louisiana Revised Statute § 51:2256; 2) abuse of rights under Article 2315 of the
Louisiana Civil Code; 3) public accommodation discrimination under Louisiana Revised Statutes
§§ 51:2247 and 51:2264; 4) violation of Section 1557 of the Patient Protection and Affordable Care
Act; and 5) civil conspiracy under Article 2324 of the Louisiana Civil Code. /d. at 22-27. Plaintiff
seeks damages and other equitable relief. Jd. at 27-28.
SMMC seeks dismissal of all claims brought against it pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. See Record
Document 19 at 1. The Court will address each of Plaintiff's claims below.
I. Rule 12(b)(6) Standard
To survive a motion to dismiss brought under Rule 12(b)(6), a plaintiff must “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Federal Rule of Civil Procedure 8(a)(2) requires
only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order
to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Twombly, 550 U.S. at 555 (internal citations omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Jgbal, 556 U.S. at 678. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Jd. (quoting
Twombly, 550 U.S. at 555). A court must accept as true all of the factual allegations in the complaint
in determining whether plaintiff has stated a plausible claim. See id.; Inre Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (Sth Cir. 2007). However, a court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). If a
complaint cannot meet this standard, it may be dismissed for failure to state a claim upon which
relief can be granted. Iqbal, 556 U.S. at 678-79. A court may dismiss an otherwise well-pleaded
claim if it is premised upon an invalid legal theory. Neitzke v. Williams, 490 U.S. 319, 327 (1989).
342 U.S.C. § 18116(A).
A court does not evaluate a plaintiffs likelihood for success, but instead determines whether a
plaintiff has pleaded a legally cognizable claim. U.S. ex rel. Riley v. St. Luke’s Episcopal Hosp.,
355 F.3d 370, 376 (Sth Cir. 2004).
I. Analysis
a. Conspiracy Claim Under Section 51:2256
Defendant seeks dismissal of Plaintiff's conspiracy claim brought under Section 51:2256.
Under this provision, it is unlawful for an “employer” to conspire “[t]o retaliate or discriminate in
any manner against a person because he has opposed a practice declared unlawful . . . or because
he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any
investigation, proceeding, or hearing.” La. R.S. § 51:2256. According to the statute, an “employer”
is defined as a “person, association, legal or commercial entity, the state, or any state agency, board,
commission, or political subdivision of the state receiving services from an employee and, in return,
giving compensation of any kind to an employee.” La. R.S. § 23:302(2). The statute only applies
to those employers who employ “twenty or more employees within this state for each working day
in each of twenty or more calendar weeks.” Jd.
In its motion to dismiss, Defendant contends that Plaintiff “has not alleged, and cannot
allege, that SMMC was ever her employer,” and thus cannot allege facts to establish a legally
cognizable conspiracy claim. Record Document 19-1 at 7. Defendant argues that in 2014, the
Louisiana Legislature amended Section 51:2256 from providing a cause of action for retaliation
against “a person or person” to providing a cause of action against one’s “employer.” /d. at 6 (citing
Employment Discrimination—Louisiana Commission on Human Rights, 2014 La. Sess. Law Serv.
Act 756 (S.B. 412)). SMMC represents that other district courts have construed this amendment as
limiting the statute to only those causes of action brought by an employee against her employer.
Record Document 19-1 at 6 (citing Martin v. Winn-Dixie La., Inc., No. 13-CV-682, 2015 WL
1281943, at *7 (M.D. La. Mar. 20, 2015)) (“The amendment of La. R.S. 51:2256 creates a cause of
action for retaliation in the case of employees alleging discrimination based on a disability, race,
color, religion, sex, national origin, or pregnancy, childbirth, and related medical conditions.”);
Sebble v. NAMI New Orleans, Inc., No. 17-CV-10387, 2018 WL 929604, at *2 (E.D. La. Feb. 16,
2018) (“to establish a retaliation claim, [p]laintiff must first show that [defendant] was her
employer.”). In short, Defendant asserts that the Court must dismiss Plaintiff's conspiracy claim
because Dr. Bishop is unable to establish an employer/employee relationship between herself and
SMMC. Id. at 7.
In her opposition brief, Plaintiff argues that the Louisiana Legislature did not intend to
restrict the scope of Section 51:2256 to only those causes of action brought by an employee against
her employer, but rather to prohibit any employer from discriminating or retaliating against any
individual. Record Document 21 at 2. She further avers that the statute does not require the “victim
of conspiracy to have had a past relationship with the offending employer or to be seeking an
employment relationship.” Jd. Moreover, Dr. Bishop argues that the Louisiana Legislature would
have used the term “employee” had it intended to limit the causes of action brought under the statute
to those arising out of an employer/employee relationship. /d. In short, Dr. Bishop contends that
she can bring a Section 51:2256 claim against SMMC because SMMC—an employer that provides
compensation to its employees to provide its patients with medical services—conspired with
LSUHSC-S to discriminate and retaliate against her. /d. Plaintiff does not cite to any precedent in
which a court has interpreted the statute to cover those causes of action she alleges.
The issue is one of statutory construction. That is, the Court must attempt to discern which
group of individuals the Louisiana Legislature intended to protect in enacting Section 51:2256. The
Louisiana Civil Code provides that “[w]hen a law is clear and unambiguous and its application does
not lead to absurd consequences, the law shall be applied as written and no further interpretation
may be made in search of the intent of the legislature.” La. Civ. Code art. 9.
Section 51:2256 incorporates the definition of “employer” as outlined by Louisiana Revised
Statute § 23:302(2), which defines an “employer” as an entity that “is receiving services from an
employee and, in return, giving compensation of any kind to an employee.” La. R.S. § 51:2256
(citing La. R.S. § 23:302(2)). The term employer has a specific, clear, and unambiguous meaning:
an employer is one who gives some type of compensation in return for services rendered. In
amending the statute, the Louisiana Legislature limited the causes of action that can be brought to
only those brought against an employer, signaling its intent to provide coverage only to those
individuals who provide services and receive compensation. In other words, to read this statute as
providing coverage outside of the employer/employee relationship would be to disregard the
Louisiana Legislature’s intent in amending the statute and incorporating this specific statutory
definition. The Court cannot read in a broader claim in the face of a narrow statute.
Plaintiff failed to plead a legally cognizable claim under Section 51:2256. The statute has
defined the term “employer.” Dr. Bishop has not alleged that her relationship with SMMC satisfies
this definition. Indeed, Dr. Bishop did not allege that she received compensation, or any other form
of benefit in return for the surgical services offered in SMMC’s hospital. In the absence of these
hallmark signs of an employer relationship, Dr. Bishop is required to plausibly allege some other
manner in which her relationship with SMMC satisfies the statute. She has not done so. Because
she has been unable to satisfy this burden, her claim must fail.
Accordingly, Defendant’s motion to dismiss is GRANTED, and Plaintiff's conspiracy
claim under Section 51:2256 is DISMISSED WITH PREJUDICE.
b. Abuse of Rights
Defendant seeks dismissal of Dr. Bishop’s abuse of rights claim. In her complaint, Plaintiff
alleges that SMMC “abused its right to grant or deny privileges to physicians seeking to practice at
SMMC by conspiring with the Board . . . to manipulate the SMMC privileging procedure to
Plaintiff's detriment.” Record Document 15 at { 96.
Under the abuse of rights doctrine, fault can be imposed “upon a party who attempts to
exercise a right that he or she legally possesses, with the intention of harming or imposing a
detriment upon another.” Walther v. Nat’l Tea Co., 848 F.2d 518, 519 (Sth Cir. 1988) (citing
Lambert v. Md. Cas. Co., 403 So. 2d 739, 755 (La. App. 4 Cir. 1981), aff'd 418 So. 2d 553 (La.
1982)). “The doctrine of abuse of rights has been invoked sparingly in Louisiana.” Mass, Mut. Life
Ins. Co. v. Nails, 549 So. 2d 826, 828 (La. 1989) (citing II. Cent. Gulf R. Co. v. Int’l Harvester Co.,
368 So. 2d 1009, 1014 (La. 1979)). A plaintiff can establish an abuse of rights claim only if one of
the following conditions is met:
(1) if the predominant motive for it was to cause harm;
(2) if there was no serious or legitimate motive for refusing;
(3) if the exercise of the right to refuse is against moral rules, good faith, or
elementary fairness;
(4) if the right to refuse is exercised for a purpose other than that for which it is
granted.
Id. at 828-29 (citing Truschinger v. Pak, 513 So. 2d 1151, 1154 (La. 1987)).
In its motion to dismiss, Defendant contends that Dr. Bishop has failed to allege “conduct
sufficient to state a claim” because it is “entitled to enforce its academic prerequisites for
credentialing a provider to perform highly specialized surgeries on children to ensure public safety.”
Record Document 19-1 at 9. Conversely, in her opposition brief, Plaintiff alleges that SMMC’s
purported reason for denying her privileges—that she did not have certification of a completed
fellowship—was pretext for retaliation, and further, that SMMC does not enforce this standard
uniformly across the board.
The Court finds that Plaintiff has alleged sufficient facts to establish an abuse of rights
claim. First, she alleges that SMMC’s predominant motive for denying her privileges was to
retaliate against her for making a sex discrimination claim against Dr. Ghali. Second, Plaintiff
alleges that there was no serious or legitimate motive for denying her privileges—and further—that
the motive was pretext for retaliation. Third, Plaintiff alleges that SMMC was not acting fairly or
in good faith because it subjected her to a higher educational standard than others who had
previously been granted surgical privileges. Taken as true, the Court finds that Dr. Bishop has
alleged enough facts to state a legally cognizable abuse of rights claim against SMMC. Thus,
Defendant’s motion to dismiss is DENIED.
c. Public Accommodation Discrimination Claim
Defendant seeks dismissal of Plaintiff's public accommodation discrimination claim under
Sections 51:2247 and 51:2264. In her complaint, Dr. Bishop contends that SMMC retaliated against
her by denying her “full and equal enjoyment of the privilege to practice medicine at SMMC and
to use SMMC’s operating rooms and surgical facilities to treat her patients” because she made a
sex discrimination complaint against Dr. Ghali while enrolled in the fellowship program at
LSUHSC-S. Record Document 15 at ¢ 105.
In its motion to dismiss, Defendant argues that Dr. Bishop’s public accommodation claim
should be dismissed because the statute is intended to protect individuals “occupying places of
public accommodation” and not “service providers attempting to provide services in those places.”
Record Document 19-1 at 15. Conversely, in her opposition brief, Plaintiff contends that
Louisiana’s public accommodation discrimination statute should not be read to “exclude coverage
10
for a non-employee physician seeking clinical privileges to use the facilities of a government-
supported hospital to provide professional healthcare services or perform surgical procedures on
patients.” Record Document 21 at 10.
Section 51:2264 provides a civil cause of action for any violations of Section 51:2247. See
La. R.S. § 51:2264. According to Section 51:2247, “it is a discriminatory practice for a person to
deny an individual the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of a place of public accommodation, resort, or amusement... on
the grounds of race, creed, color, religion, sex, age, disability . . . or national origin.” La. R.S. §
51:2247. A “place of public accommodation, resort, or amusement” has been defined to include
“any place, store, or other establishment . .. which supplies goods or services to the general public.”
La. R.S. § 51:2232. This includes hospitals. See Albright v. S. Trace Country Club of Shreveport,
Inc., No. 2003-C-3413 (La. 7/6/04); 879 So. 2d 121, 127.
To be clear, the issue before the Court is not whether Dr. Bishop has alleged that she falls
into one of the statutorily protected categories—race, creed, color, religion, sex, age, disability, or
national origin—but rather whether the type of accommodation that she seeks—surgical privileges
at a hospital—is covered by the statute. In other words, the Court must determine whether the denial
of a doctor’s surgical privileges constitutes the denial of her access to public accommodations under
Section 51:2247. The Court could not locate any Fifth Circuit or Louisiana Supreme Court
precedent directly addressing this issue. Nor has either party cited to any such authority. As such,
the Court must turn to additional sources of authority for guidance.
In her opposition to Defendant’s motion to dismiss, Plaintiff argues that the Court must
analyze her public accommodation discrimination claim under Title IT of the Civil Rights Act of
11
1964 (“Title II”).4 Under Title I, “[a]ll persons shall be entitled to the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination or segregation on the ground of
race, color, religion, or national origin.” 42 U.S.C. § 2000a(a). In Semien v. Pizza Hut of America,
Inc., 204 F.3d 1115, 1115 (5th Cir. 2021), the Fifth Circuit turned to Title II for guidance in
analyzing a race discrimination claim brought under Section 51:2247 because it is “substantively
similar to Title II.”
The Fifth Circuit has also relied upon Title III of the Americans with Disabilities Act of
1990 (“Title III’) for guidance in analyzing a Section 51:2247 claim for disability discrimination.
See Smith v. France, 850 F. App’x 243, 248-49 (Sth Cir. 2021). Title II states that “[nJo individual
shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a place of public
accommodation.” 42 U.S.C. § 12182(a). Title III and Section 51:2247 are also substantively similar
in their protections of individuals with disabilities.
The Court was unable to locate any federal statutes substantively similar to Section 51:2247
in the context of sex discrimination from which the Court could find guidance in ruling on Dr.
Bishop’s public accommodations claim under Section 51:2247. However, the issue before the Court
is not whether Dr. Bishop has alleged that she is a member of a protected class; instead, the inquiry
centers on whether SMMC’s denial of her surgical privileges constitutes the denial of access to a
public accommodation. That is, it is not essential that a substantively similar federal statute address
442 U.S.C. § 2000a(a).
U.S.C. § 12182(a).
12
sex discrimination, but rather that it provides guidance as to the types of public accommodations
that the statute aims to protect. Considering that the Fifth Circuit has previously relied upon Titles
II and III in analyzing Section 51:2247 public accommodation claims, the Court must determine
whether there is any precedent or jurisprudence wherein a doctor brought a claim under these
federal statutes against a hospital for denying her surgical privileges for a discriminatory reason.
The Court was not able to locate any jurisprudence in which a doctor brought a Title I] claim
against a hospital for denying her surgical privileges. However, the Third Circuit in Menkowitz v.
Pottstown Memorial Medical Center, 154 F.3d 113 (rd Cir. 1998), directly addressed this issue in
the Title III context. In Menkowitz, an orthopedic surgeon was denied surgical privileges after he
was diagnosed with attention deficit disorder. Jd. at 115. The doctor brought a Title IT claim against
the hospital, arguing that he was discriminated against when he was denied the opportunity to use
the privileges and benefits of the hospital—a public accommodation—to perform surgeries because
he had attention deficit disorder. Id.
In that case, the Third Circuit looked at the plain language and legislative history of the
statute, along with other precedent, to determine whether the doctor could bring a Title III claim
against the hospital. Jd. at 116-121. After examining the issue, the Third Circuit found that:
[A] medical doctor with staff privileges—one who is not an employee for purposes
of Title I—may assert a cause of action under Title III of the ADA as an individual
who is denied the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation.
Our conclusion is reinforced by several observations. First, we may effectively find
no recourse under the ADA for the appellant if we were to hold that [] he has no
cause of action under Title III. . .. Second, nothing in the Rehabilitation Act would
prevent a physician with staff privileges from asserting a cause of action based on
disability discrimination. . . . Finally, the administrative guidance issued by the
Justice Department interprets Title ITI to allow a cause of action for physicians with
staff privileges.
13
Id. at 122-123 (internal citations and quotation marks omitted). Thus, the Third Circuit held that a
doctor could bring a Title III disability discrimination claim against a hospital for the denial of
surgical privileges.
In summary, the Court was unable to locate any Fifth Circuit or Louisiana Supreme Court
precedent addressing the issue of whether a doctor can bring a sex discrimination claim under
Section 51:2247 against a hospital that denied her surgical privileges. However, the Fifth Circuit
has indicated that Titles IJ and III should be used as guidance in interpreting Section 51:2247 cases
because they are substantively similar to Section 51:2247. Therefore, the Court has looked to Titles
II and IL for guidance in interpreting Dr. Bishop’s Section 51:2247 claim and has found the Third
Circuit has addressed the denial of hospital privileges in the Title III context.
The Court is persuaded by the Third Circuit’s detailed and well-reasoned holding in
Menkowitz and finds a similar result should be reached for based discrimination claims. Just as the
doctor in Menkowitz, Dr. Bishop does not bring her public accommodation discrimination claim in
the employment discrimination context, but rather as an individual seeking to utilize the privileges
of a federally funded medical facility. Also similar to Menkowitz, Dr. Bishop has alleged that
SMMC’s bylaws discuss staff privileges and do not classify surgical privileges as being an
employment benefit, but rather a benefit to community doctors as a “community provider.” Jd. at
10-11. Considering the Third Circuit’s holding in Menkowitz, the Court finds that Section 51:2247
covers discrimination claims in the context of a doctor who is seeking surgical privileges. As such,
Dr. Bishop has brought a legally cognizable claim against SMMC under Sections 51:2247 and
51:2264. Thus, Defendant’s motion to dismiss is DENIED.
14
d. Section 1557 Claim
Defendant seeks dismissal of Plaintiff's claim brought under Section 1557 of the Patient
Protection and Affordable Care Act (“ACA”). In her complaint, Plaintiff claims that Defendant
discriminated and conspired to retaliate against her, and as such, she is entitled to relief under
Section 1557. Section 1557 states that:
[A]n individual shall not, on the ground prohibited under [T]itle VI of the Civil
Rights Act of 1964 [.. . ], [T]itle [IX of the Education Amendments of 1972 [. . . ],
the Age Discrimination Act of 1975 [. .. ], or [S]ection 794 of Title 29, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination
under, any health program or activity, any part of which is receiving Federal
financial assistance, including credits, subsidies, or contracts of insurance, or under
any program or activity that is administered by an Executive Agency or any entity
established under this title (or amendments). .. .
42 U.S.C. § 18116(a). The issue before the Court is a matter of statutory interpretation. In other
words, the Court is tasked with determining whether the denial of surgical privileges by a hospital
constitutes exclusion from participation in a health program or activity under Section 1557. For the
reasons enumerated below, the Court finds that neither party has adequately addressed this issue in
their briefs.
The Court will turn first to Defendant’s motion to dismiss. In its motion, Defendant does
not attempt to interpret the statute, nor does it engage in any of the typical canons of construction
in support of its claims. Instead, Defendant argues that Dr. Bishop is “not within the class of
plaintiffs protected by the nondiscrimination provisions of the ACA.” Jd. Record Document 19-1
at 12. Specifically, Defendant contends that “[c]laims for recovery under the nondiscrimination
provisions of the ACA are brought by or on behalf of patients alleging they have been discriminated
against by a healthcare provider on the basis of race, age, sex, and/or disability.” Jd. Along the same
vein, SMMC argues that Fifth Circuit precedent provides that Section 1557 only protects
individuals from discrimination during the “provision of health care,” and Dr. Bishop was not
15
seeking the provision of health care, but rather to be the provider of health care. Jd. (quoting
Francois v. Our Lady of the Lake Hosp., Inc., 8 F.4th 370, 378 (Sth Cir. 2021); Kim v. HCA
Healthcare, Inc., No. 20-CV-154, 2021 WL 5281599, at *2 (N.D. Tex. Nov. 12, 2021)).
Defendant was not able to identify a factually similar case brought under Section 1557—
and further, could only locate cases where the plaintiff was a patient/patient’s representative
bringing a discrimination claim against a healthcare provider. However, just because Defendant
could not locate a case on point does not necessarily mean that a doctor could not sue a hospital
under the statute.®
Turning now to Plaintiff's opposition to Defendant’s motion to dismiss, Plaintiff argues
that the plain language of the ACA supports her assertion that Section 1557 extends its protections
against discrimination to “non-employee physicians.” Record Document 21 at 10. Plaintiff
contends that the term “individual” should be interpreted as “of the species homo sapiens,” and that
the term “health care program or activity” should be interpreted to “encompass[] all of the
operations of entities principally engaged in the business of providing healthcare... .” Jd. at 10-11
(citations omitted) (emphasis in original). She then cites to provisions of the Louisiana
Administrative Code to further clarify how the term “operations” should be interpreted. However,
Plaintiff does not cite to any authority or provide any substantive analysis in support of these
assertions. In other words, Dr. Bishop fails to enunciate why this Court should rely upon the
6 Defendant also advances an argument that:
Section 1557 of the ACA is not limited to students at universities, but the student in
the Title [X context is directly akin to the patient receiving healthcare services in the
ACA context, while a provider of medical services (or individual seeking to provide
medical services) is akin to a non-student employee, for whom Title IX recognizes
no right of action.
Record Document 21 at 13. However, SMMC advances no authority or additional legal analysis in
support of this assertion.
16
definitions that she sets forth in her opposition brief. Additionally, she fails to articulate the
relevance of the Louisiana Administrative Code to the construction of Section 1557. Ultimately,
Plaintiff fails to engage in any meaningful interpretation of Section 1557 or utilize any of the typical
canons of construction required for statutory interpretation.
In summary, neither party has adequately briefed this issue. As such, Defendant’s motion
to dismiss must be DENIED.
e. Civil Conspiracy Under Article 2324
In her complaint, Plaintiff brings a civil conspiracy claim against SMMC, arguing that □□□□□
the event it is determined by a judge or jury that the Board is liable to Plaintiff for damages caused
by or arising from any act of discrimination or retaliation alleged against the Board” in violation of
Titles VII and [X or for conspiracy under Section 51:2256, then “SMMC is also liable in solido
with the Board for all damages caused by those acts.” Record Document 15 at § 122. Defendant
seeks dismissal of this claim.
Article 2324 provides that “[h]e who conspires with another person to commit an intentional
or willful act is answerable, in solido, with that person, for the damage caused by such act.” La.
Civ. Code art. 2324(A). In order to prove a conspiracy, a plaintiff must establish that: (1) there was
an agreement to commit an illegal or tortious act; (2) the act was actually committed; (3) the act
resulted in the plaintiff's injury; and (4) there was an agreement as to the intended outcome or
result. Jeff Mercer, LLC v. State through Dep’t of Transp. & Dev., 51,371 (La. App. 2 Cir. 6/7/17);
222 So. 3d 1017, 1024. “The actionable element of a conspiracy claim is not the conspiracy itself
but rather the tort that the conspirators agree to perpetrate and actually commit in whole or in part.”
Prime Ins. Co. v. Imperial Fire & Cas. Ins. Co., 2014-0323 (La. App. 4 Cir. 10/1/14); 151 So. 3d
670, 676.
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In fact, civil conspiracy “by itself it not an actionable claim under Louisiana law.” Crutcher-
Tufts Res., Inc. v. Tufts, 2007-1556 (La. App. 4 Cir. 9/17/08); 992 So. 2d 1091, 1094. “Civil
conspiracy is not a substantive tort in Louisiana; the concept is relevant only to the distribution of
quantum after liability is determined.” New Orleans Jazz & Heritage Found., Inc. v. Kirksey, 2009-
1433 (La. App. 4 Cir. 5/26/10); 40 So. 3d 394, 408. “The actionable element of a claim of
conspiracy pursuant to Article 2324 pertains to loss distribution and not substantive liability.”
Wooley v. Lucksinger, 2006-1140 (La. App. 1 Cir. 12/30/08); 14 So. 3d 311, 403, rev’d in part on
other grounds, 2009-0571 (La. 4/1/11); 61 So. 3d 507.
Within a conspiracy, each actor is not required to commit the underlying illegal or tortious
act. Rather, it is the agreement to commit those acts that makes one liable in a conspiracy, even if
he did not perform the violative act(s) himself. That is, each actor need not be independently
responsible for the commission of the underlying tort. See Currier v. Entergy Servs., Inc., No. 11-
2208, 2014 WL 4450360, *2 (E.D. La. Sept. 10, 2014) (‘[N]othing in Article 2324 or the case
literature requires that each co-conspirator equally participate in, let alone wholly commit, each
element of the underlying intentional tort.”); see also Chrysler Credit Corp. v. Whitney Nat’l Bank,
51 F.3d 553, 557-58 (Sth Cir. 1995) (explaining that because there was a stipulation that one party
was liable for conversion of proceeds, the court did not need to determine whether the co-
conspirator defendant was also liable for conversion; rather, it need only decide whether that
defendant conspired with the guilty party to convert the funds).
In its motion to dismiss, Defendant contends that “it would be inappropriate to apply a civil
conspiracy theory of damages” against SMMC because Dr. Bishop did not allege that both the
Board and SMMC violated her rights under Titles VII and [X. But Dr. Bishop did not need to bring
mirror Title VII and IX claims against both Defendants in order to bring a civil conspiracy claim
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under Article 2324. Instead, as the jurisprudence makes clear, Dr. Bishop may sue one party for the
substantive tort, yet lodge a conspiracy claim against both parties based on a conspiracy to carry
out the underlying tortious act. Here, despite bringing Title VII and IX claims solely against the
Board, Dr. Bishop nonetheless argues that the Board and SMMC conspired to retaliate against her.
See Record Document 15 at J 66, 79, 73. At this stage of litigation, this is all that is required. In
short, Defendant has alleged a legally cognizable claim against SMMC under Article 2324.
Accordingly, Defendant’s motion to dismiss is DENIED.
IV. Conclusion
Based on the foregoing reasons, Defendant’s motion to dismiss [Record Document 19] is
GRANTED IN PART and DENIED IN PART. Defendant’s motion is GRANTED with respect
to Plaintiffs conspiracy claim under Section 51:2256. That claim is DISMISSED WITH
PREJUDICE. Defendant’s motion to dismiss is DENIED regarding Plaintiff's abuse of rights
claim under Article 2315; her public accommodation discrimination claim under Sections 51:2247
and 51:2264; her Section 1557 claim; and her civil conspiracy claim under Article 2324.
THUS DONE AND SIGNED this 30th day of September, 2023.
CA
\
ELIZABETH ERNY FQQTE~
UNITED STATES DIST RIGT JUDGE
__)\
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