# Topolewski v. Police Jury

> District Court, W.D. Louisiana · February 4, 2025

URL: https://www.frixlaw.com/law-library/cases/10793741

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** February 4, 2025
- **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/10793741

## How later opinions describe it (automated extraction)

- holding that members of the school board’s statement were admissible because the board members were agents of the school district
- holding where plaintiff failed to prove that she was replaced, she must establish that the misconduct for which she was discharged was nearly identical to that engaged in by another employee outside the protected class who was retained
- explaining that the burden to present a non-discriminatory reason “is one of production, not persuasion; it ‘can involve no credibility assessment.’” (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

THEODORE TOPOLEWSKI CASE NO. 3:23-CV-00258

VERSUS JUDGE TERRY A. DOUGHTY

POLICE JURY ET AL MAG. JUDGE KAYLA D. MCCLUSKY

MEMORANDUM RULING
Pending before the Court are two Motions for Summary Judgment [Doc. Nos. 55, 64]. The
first Motion for Summary Judgment [Doc. No. 55] is filed by Madison Parish Service District
Hospital Board of Commissioners (“Defendant Hospital Board”) and Madison Parish Service
District Hospital (“Defendant Hospital”) (collectively “Defendants”). The second Motion for
Summary Judgment [Doc. No. 64] is filed by RSUI Indemnity Company (“RSUI”)1, who adopts
Defendant Hospital Board and Defendant Hospital’s Motion for Summary Judgment [Doc. No.
55]. Defendant Hospital Board, Defendant Hospital, and RSUI are collectively referred to as “all
Defendants” throughout the ruling. Plaintiff, Theodore Topolewski (“Topolewski” or “Plaintiff”),
filed an omnibus Opposition [Doc. No. 78], and Defendants have filed two Replies [Doc. Nos. 81,
86].
For the reasons set forth herein, Defendants’ Motions are GRANTED IN PART and
DENIED IN PART.
I. BACKGROUND AND PROCEDURAL HISTORY
Topolewski, a Caucasian male, filed the instant employment suit against all Defendants on
February 27, 2023.2 Topolewski filed a first amended and supplemental complaint and a second

1 Defendant Hospital is a named insured under an insurance policy issued by RSUI.
2 [Doc. No. 1]
amended and supplement complaint.3 Throughout the complaints, Topolewski asserts several
causes of action sounding in race-based discrimination, retaliation, breach of contract, and civil
conspiracy.
The Madison Parish Service District Hospital was created by the Madison Parish Police
Jury, per the authority granted by La. R.S. § 46:1051, to operate the Madison Parish Hospital in

Tallulah, Louisiana. The Hospital Service District, a political subdivision of the State of Louisiana
is governed by a board of five commissioners (Hospital Board), each appointed by the Police Jury.
On April 7, 2014, Plaintiff and the Hospital entered into an employment agreement.4 The
employment agreement was extended several years. Plaintiff served as Director/Chief Executive
Officer (“CEO”) of the Hospital until his discharge on October 14, 2022.5 The employment
agreement in effect at the time of Plaintiff’s termination was set to expire on February 28, 2023.6
Plaintiff’s employment agreement with the Hospital contained the following provisions regarding
termination:
4.4. Termination by Either Party for Cause. Either party may terminate this
Agreement, for cause, if the other party breaches a material term of
this Agreement and such breach is not cured within seven (7) days of
receipt of written notice of such breach by the other party. "Cause" is
defined to include, but not be limited to, the following:

4.4.1. Refusal by the CEO to regularly report and/or diligently perform
the duties required by this Agreement;

4.4.2. CEO's violation of a patient's confidentiality rights set forth in this
Agreement or Louisiana or federal law.

4.4.3. CEO's violation of the Nondisclosure of Hospital Information as set
forth in this Agreement; or

4.4.4. Hospital's failure to pay compensation as set forth herein.

3 [Doc. No. 10, 19].
4 [Doc. No. 78-2].
5 [Doc. No. 78-3, p. 3].
6 [Doc. No. 55-12, p. 24].
4.5. Removal of CEO by Board Vote. Hospital may remove CEO by a
majority vote of the Board at any regular meeting for which the removal
appears on the agenda or any special meeting after due notice if, at
the Board's discretion, CEO is found incompetent, inefficient, or
unworthy during the term of a written employment agreement,
provided that the Board shall provide CEO with written warning that
his conduct is unacceptable and a reasonable opportunity to correct
the indicated deficiencies prior to the Board's termination of the
Agreement. In the event of termination under this provision, CEO
will receive a severance payment equal to two (2) months' salary.
4.6. Immediate Termination by Board. The Board may terminate this
Agreement immediately upon notice to CEO upon occurrence of any
of the following, which shall form the basis for termination of this
Agreement:
4.6.1 CEO is convicted of a felony;

4.6.2 CEO dies or becomes disabled and incapable of
performing the services contemplated by this
Agreement; or
4.6.3 CEO engages in any act of omission that is harmful to
the safe operation of the Hospital or is a threat to the
health, safety, or welfare of the patients, staff and/or
employees of the Hospital.
4.7 O bligations Prior to Termination. Any such termination shall not effect
either party's obligations arising prior to the effective date of termination.

On August 3, 2022, the Hospital’s Chief Financial Officer (“CFO”), Robert Laurents
(“Laurents”), informed Plaintiff that Latayatcha Ross (“Nurse Ross”), a licensed nurse practitioner
employed by the Hospital, was falsifying medical records to obtain a contractual bonus.7 Plaintiff’s
initial response to Laurents was to “let it go.”8 One day later, on August 4, 2022, Laurents and the
business office manager informed Plaintiff that Nurse Ross falsified over one hundred and twenty
(120) records.9 Plaintiff requested samples of the records which allegedly showed their
incompleteness.10 Plaintiff contacted the Hospital’s outside counsel, Sullivan Stolier Schulze, LLC

7 [Doc. No. 55-5, p. 12].
8 [Doc. No. 78-6, p. 3].
9 [Id.].
10 [Doc. No. 78-6, p. 4].
(“Sullivan Stolier”), to request an internal investigation.11 After conducting the internal
investigation, Sullivan Stolier informed Plaintiff to terminate Nurse Ross immediately.12 On
August 9, 2022, Plaintiff called a meeting with Defendant Hospital Chief Medical Officer – Dr.
Lawrence Chenier, Nurse Ross’ collaborating physician – Dr. Donald Perry, and Nurse Ross’
administrative boss – Stacey Sandidge, to brief them of the situation.13

Nurse Ross admitted to submitting nearly sixty-six (66) incomplete medical records and
was terminated.14 The report was given to the Hospital on August 25, 2022, and corroborates
Plaintiff’s testimony.15 The report also notes that immediate termination was warranted under her
contract.16
On August 25, 2022, Plaintiff emailed a copy of the Sullivan Stolier report to Defendant
Hospital Board.17 At that time, the Defendant Hospital Board was made up of five members: Mary
Trichell (“Trichell”) – Chair, Thomas Leoty (“Leoty”) – Vice Chair, Cole Norris (“Norris”),
Calvin Washington (“Washington”), and Thomas Mitchell (“Mitchell”). 18 Trichell, Leoty, and
Norris are Caucasian, and Washington and Thomas are African American. Plaintiff asked
Washington his thoughts on the report, and Washington said that the attorney report was “false.”19

Nurse Ross reportedly “had a very nice personality,” “her demeanor was very, very nice,” and “she
seemed to be a great person.”20 Plaintiff declared in his deposition that in addition to accusing
Sullivan Stolier of making a false report, Washington used the word “racial” and clearly stated his

11 [Doc. No. 55-5, p. 37].
12 [Doc. No. 78-6, p. 4].
13 [Doc. No. 55-5, p. 14].
14 [Id. at 15].
15 [Doc. No. 78-7, p. 1].
16 [Id.].
17 [Doc. No. 78-8].
18 [Doc. No. 78-8, p. 1].
19 [Doc. No. 78-12, p. 10]
20 [Id. at p. 32]
intentions of gaining an African American majority board.21 Plaintiff memorialized the
conversation in an email to Trichell, despite Washington testifying that he does not recall saying
such.22
A. Board Meetings
On or around September 21, 2022, Mitchell emailed board agenda items for a meeting set for

September 27, 2022.23 The agenda listed a hearing for Nurse Ross’ termination and removal of
officers for cause.24 Despite Mitchell’s proposed agenda, Plaintiff emailed Chasity Whitaker
(“Whitaker”), the Hospital’s Board secretary, and stated that Nurse Ross’ termination was not to
be discussed.25 Plaintiff forwarded Mitchell’s email to Sullivan Stolier and wrote: “A silly
document. I will not respond.”26 Plaintiff allegedly canceled the September 27, 2022, meeting.
Mitchell confronted Trichell at work where he allegedly raised his voice and demanded an
explanation as to why Nurse Ross’ termination discussion was taken off the agenda.27 Trichell
replied that the discussion was taken off after advice from the Hospital and the Board’s legal
counsel.28 On or about September 27, 2022, two attorneys from the Fisher & Phillips firm –

Andrew Baer and Michelle Anderson – traveled to the Hospital to “commence an investigation
and speak to the Board in special session to provide legal guidance.”29
On October 10, 2022, the police jury convened its regular meeting and voted to dismiss board
members Trichell and Leoty as their terms had allegedly expired.30

21 [Doc. No. 78-9].
22 [Doc. Nos. 78-9; 78-12, p. 17-19].
23 [Doc. No. 78-20, p. 4].
24 [Id.].
25 [Doc. No. 55-22, p. 1].
26 [Doc. No. 55-24].
27 [Doc. No. 78-21].
28 [Doc. No. 78-10, p. 8-10].
29 [Doc. No. 78-15, p. 2].
30 [Doc. No. 55-29].
Plaintiff submitted evidence that before the dismissal of Trichell and Leoty, Mitchell requested
a schedule of the board members’ term dates from the police jury secretary, Margaret Drew
(“Drew”), as opposed to the Defendant Hospital Board secretary, Whitaker.31 Further, the police
jury agenda for the October 10, 2022, meeting failed to adhere to the specific notice requirements
regarding dismissal and appointee of members. Both Trichell and Leoty state in their deposition

that they did not have any warning or notice that they had to submit written requests to the police
jury to remain on the hospital board.32 However, Mitchell and Washington were put on notice of
the upcoming expiration of their term and wrote letters asking to be re-appointed.33 The police jury
unanimously voted to re-appoint both Mitchell and Washington, changing the hospital board from
a Caucasian majority to an African American majority.34
On October 12, 2022, the amended board issued a notice of a special meeting to take place on
October 14, 2022.35 The special meeting’s agenda included the following matters: “Board hearing
for licensed contractor employee; Removal of Officers for cause; Salary reviews; Investigations
into all personnel-related matters.”36

B. Removal of Plaintiff
On October 12, 2022, Plaintiff forwarded the email regarding the board’s agenda notice to an
attorney from Sullivan Stolier and claimed that he would not attend and “hopefully they will do
me a favor and terminate my contract.”37 Plaintiff testified that he did not attend the meeting
because the board was illegally constituted and called by no officers. Further, Plaintiff declared

31 [Doc. No. 78-23].
32 [Doc. Nos. 78-10, p. 9; 78-26, p. 2].
33 [Doc. No. 57-2, p. 9].
34 [Doc. No. 55-30].
35 [Doc. No. 78-22].
36 [Doc. No. 55-31].
37 [Doc. No. 55-32].
that he feared for his safety due to the community's reactions regarding Nurse Ross’ termination.38
Jeanette Phillips, who was a housekeeper of the Hospital, testified in an affidavit that she observed
Plaintiff on the day of his termination, “making trips back and forth, moving his things out of his
office. He made trips out of the hospital, moving boxes and his things.”39 This allegedly led the
Hospital Board to believe that Plaintiff abandoned his position.40 Plaintiff presents deposition

testimony that he removed his belongings because he was suspicious of the Hospital Board’s
intentions to terminate him.41
Finally, on October 14, 2022, the Hospital Board voted to remove Plaintiff as Hospital’s
CEO, effective immediately.42 Plaintiff received the termination notice on October 17, 2022, with
no reasoning provided.43 Additionally, the Hospital Board reinstated Nurse Ross due to the absence
of proof regarding the reason for her termination and hired Williams, Nurse Ross’ attorney, to a
newly created position at the Hospital.44 Further, Doctor Donald Perry (“Dr. Perry”), an African
American, was appointed as interim CEO and remained as such for two (2) years.45 On February
1, 2024, the Hospital hired permanent CEO, William Ermann (“Ermann”), a Caucasian male.

On July 12, 2024, Defendants filed the pending Motion asserting that the Court dismiss
“all causes of actions collectively sounding in race based, retaliatory discrimination, unlawful
conspiracy, breach of contract and the intentional infliction of emotional distress, pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C §1981, 42 U.S.C §1983, 42 U.S.C

38 [Doc. No. 55-6, p. 16-18].
39 [Doc. No. 55-15].
40 [Doc. No. 55-2, p. 18].
41 [Doc. No. 55-6, p. 22].
42 [Doc. No. 55-35].
43 [Doc. No. 78-31].
44 [Id.].
45 [Id.].
§1985, La. R.S. 23:301, et seq, La. R.S. 23:967, La. Civil Code article 1997, and Louisiana’s code
laws regarding the Intentional Infliction of Emotional Distress.”46 Plaintiff opposes.47
The issues have been briefed, and the Court is prepared to rule.
II. LAW AND ANALYSIS
A. Standard of Review

Under FED. R. CIV. P. 56(a), the court will 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.” If the movant meets their initial burden of showing no genuine issue of material
fact, “the burden shifts to the nonmoving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” Distribuidora Mari Jose, S.A. de C.V. v.
Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013) (cleaned up). A fact is “material” when
proof of its existence or nonexistence would affect the lawsuit’s outcome under applicable law in
the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, “the mere
existence of some alleged factual dispute will not defeat an otherwise properly supported motion

for summary judgment.” Id. at 247-48. And a dispute about a material fact is “genuine” only if the
evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.
While courts will “resolve factual controversies in favor of the nonmoving party,” an actual
controversy exists only “when both parties have submitted evidence of contradictory facts.” Little
v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). But summary judgment is appropriate
when the evidence is “merely colorable or is not significantly probative.” Cutting Underwater
Tech. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (cleaned up).

46 [Doc. No. 55].
47 [Doc. No. 78].
Moreover, “a party cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence.” Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (cleaned up). Courts “may not make credibility
determinations or weigh the evidence” and “must resolve all ambiguities and draw all permissible
inferences in favor of the non-moving party.” Total E & P USA Inc. v. Kerr¬McGee Oil and Gas

Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted).
Finally—and importantly—there can be no genuine dispute as to a material fact when a party
“fails to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof of trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
B. Analysis
1. Exhibits 16, 17, 34, 28, 7, 15

A. Exhibits 16, 17, and 34

In the Reply to Plaintiff’s Opposition, Defendants argue that Exhibits 16, 17, and 34
(collectively the “newspaper articles”) should not be considered as evidence because newspaper
articles are inadmissible hearsay.48 Plaintiff asserts that the newspaper articles are admissible
pursuant to Federal Rule of Evidence 802(1). Under Federal Rule of Evidence 802(1), a present
sense impression is a “statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it.” Alternatively, Plaintiff argues that Federal Rule of
Evidence 801(d)(1) exclusion applies because Blakely Bell (“Bell”), the author of the newspaper
articles, was subject to cross-examination and is listed as a potential trial witness. Generally,
newspaper articles are not proper summary judgment evidence to prove the truth of the facts that

48 [Doc. No. 81, p. 2].
they report because they are inadmissible hearsay. Roberts v. City of Shreveport, 397 F.3d 287,
295 (5th Cir.2005).
In McCowan v. City of Philadelphia, 603 F.Supp.3d 171 (E.D. Pa. 2022), the plaintiff
argued that the city controller’s op-ed was definitionally not hearsay because it was her prior
statement and otherwise was admissible because she would testify at trial. The McCowan court

held that “[I]t is not enough for the proponent to show that the speaker is currently available for
cross examination at trial. Federal Rule of Evidence 801 defines ‘hearsay’ as ‘a statement that ...
the declarant does not make while testifying at the current trial or hearing.’” Green v. United
Parcel Service, Inc., 2020 WL 20337176 (citing FED. R. EVID. 801(c)) (emphasis added). The
court thus denied the newspaper admission because the statement was made before the current
trial, which is like the facts here. See id. As for the exclusion under 802(1), Plaintiff fails to provide
the Court of precedent where a newspaper can fall under the present sense impression and the
Court cannot find one either.
Thus, Exhibits 16 and 17 in their entirety are not admissible summary judgment evidence

and will not be considered for this ruling.
Exhibit 34 constitutes an article regarding the reinstatement of Williams and an interview
between Bell and Mitchell. Plaintiff argues that the statements made by Mitchell comprise
statements made by an opposing party under Federal Rule of Evidence 801(d)(2). The Court agrees
and finds that Federal Rule of Evidence 801(d)(2)(D) applies.
Mitchell’s statements can be considered against the Defendant Hospital because Mitchell
is an agent of the Hospital. See Wilkerson v. Columbus Separate School Dist., 985 F.2d 815, 818
(5th Cir. 1993) (holding that members of the school board’s statement were admissible because
the board members were agents of the school district). However, only the direct statements are
admissible. Bell’s written synopsis and own words are struck for the reasons set out above.
In Jacobs v. LeBlanc, 2015 WL 364170 at *4 (M.D. La. Jan. 26, 2015), aff'd, 639 F. App'x
252 (5th Cir. 2016), the court sustained the defendant’s objection to a newspaper article where the
then-defendant (LeBlanc) was quoted discussing prison conditions. At the time of the challenge,

LeBlanc was not a current defendant in the case because he had been dismissed. Id. The court ruled
that because there were no opposing party’s statements quoted in the article, it was inadmissible
hearsay. Id. Contrary to LeBlanc, here, Mitchell is considered an opposing party as he is an agent
acting within the scope of his employment as a board member and the statements are offered
against him. Federal Rule of Evidence 801(d)(2)(D) requires that the statement be made during the
existence of the employment relationship. As to current employees, if the statement concerned a
matter within the scope of employment, it would be deemed admissible. Corley v. Burger King
Corp., 56 F.3d 709, 710 (5th Cir.1995); Davis v. Mobil Oil Exploration & Producing Se., Inc., 864
F.2d 1171, 1174 (5th Cir. 1989). Mitchell’s quotes regarding Plaintiff’s termination and pay would

be admissible under the hearsay exclusion 801(d)(2)(d), because he was acting within his scope as
chairman for the Board and Hospital.
Thus, the Court will consider Mitchell’s quoted statements in Exhibit 34 as admissible
summary judgment evidence.
B. Exhibit 28
Defendants argue that paragraphs 20, 21, and 22 of Whitaker’s affidavit are inadmissible
hearsay since Williams’ statements “cannot pertain to the factual basis underlying the actual claims

asserted” because the statements occurred after Plaintiff was terminated.49 The Court disagrees.

49 [Doc. No. 81, p. 2].
As relevance is the ultimate evidence standard, the fact that Williams was soliciting information
on Plaintiff after his termination is relevant in evidence to support Plaintiff’s underlying claims.
Thus, the Court will consider Whitaker’s affidavit in Exhibit 28 as admissible summary
judgment evidence.
C. Exhibits 7 and 15

Defendants argue that the Sullivan Stolier and Fisher Phillips reports (“attorney reports”)
constitute attorney-client privilege documents that have already been ruled inadmissible by the
Court, and alternatively, constitute hearsay.50 Plaintiff correctly argues that this Court did not rule
the attorney reports inadmissible but denied Plaintiff’s motion to compel the depositions of the
authors of the reports.51 Further, Plaintiff states that to the extent the reports are attorney-client
privileged, such has been waived because Defendants disclosed them voluntarily to Plaintiff, and
the reports have been used extensively throughout the litigation without any objection as to
privilege. Plaintiff further asserts that the reports are admissible for purposes other than to prove
the truth of the matter asserted, such as the effect on the listeners.

Patently, a voluntary disclosure of information that is inconsistent with the confidential
nature of the attorney-client relationship waives the privilege. Ward v. Succession of Freeman, 854
F.2d 780 (5th Cir. 1988). Both reports were voluntarily given to Plaintiff during his employment
and after termination.
Therefore, the Court will consider Exhibits 7 and 15 as admissible summary judgment
evidence.
2. Title VII, 42 U.S.C § 1981, and Louisiana Employment Discrimination Claims
Against All Defendants

50 [Doc. No. 81, p. 2].
51 [Doc. Nos. 66; 86, p. 7].
Plaintiff alleges three claims of race-based discrimination: Title VII of the Civil Rights Act
of 1964 as amended, 42 U.S.C §1981, and Louisiana Employment Discrimination Act, La. R. S.
23:301, et seq. The same evidentiary framework—the Title VII framework—applies to each of
Plaintiff’s discrimination claims, so the Court begins there. Lawrence v. Univ. of Texas Med.
Branch at Galveston, 163 F.3d 309, 311 (5th Cir. 1999). The only substantive difference is that §

1981 does not require exhaustion of administrative remedies, which is not at issue here. Id. at 227.
Title VII prohibits employers from discriminating against employees on a number of
grounds, including race. 42 U.S.C.§ 2000. To establish a prima facie case of discrimination, the
plaintiff must either present direct evidence of discrimination or circumstantial evidence. Harris
v. Drax Biomass Inc., 813 F. App’x. 945, 947 (5th Cir. 2020). Where, as here, the Plaintiff offers
no direct evidence of intentional race discrimination, we analyze the claim under the burden-
shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
McDonnell Douglas Corp., the plaintiff carries the burden to prove that (1) he belongs to a
protected class; (2) he was qualified for the position at issue; (3) he was the subject of an adverse

employment action; and (4) he was replaced by someone outside his protected class or was treated
less favorably than other similarly situated employees outside his class. 411 U.S. at 802; see also
Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). If the plaintiff establishes a prima
facie case, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the
adverse-employment action. McDonnell Douglas Corp., 411 U.S. at 802.
If the employer can show a legitimate, nondiscriminatory reason for the adverse-
employment action, the presumption of discrimination disappears, and the burden shifts back to
the plaintiff to show either that the proffered reason was a pretext for discrimination, or that the
plaintiff’s protected status was another motivating factor for the decision. Alvarado v. Tex.
Rangers, 492 F.3d 605, 611 (5th Cir. 2007).
A. Prima Facie Case of Discrimination
Defendants assert that Plaintiff cannot establish the fourth element of his prima facie
case—that he was replaced by someone outside his protected class. Defendants lack briefing on

the second portion of element four which is whether Plaintiff was treated less favorably than other
similarly situated employees outside his class because his permanent replacement was a Caucasian
male. McDonnell Douglas Corp., 411 U.S. at 802.
Plaintiff argues that Dr. Perry, who replaced Plaintiff as interim CEO for two years and is
an African American, proves the fourth prong of his prima facie case. When analyzing the fourth
element, the Court must compare plaintiff to his permanent replacement employee, as opposed to
a temporary fill-in. Ross v. Judson Indep. Sch. Dist., 993 F.3d 315, 322 (5th Cir. 2021). Though
the Fifth Circuit has not expressly addressed the issue, it is proper to consider any replacement that
is not ‘called, deemed or viewed’ as a temporary replacement’.” Douglas v. St. John Baptist Par.

Libr. Bd. Of Control, 2022 WL 898746 at *18 (E.D. La. Mar. 28, 2022).
In Pizzolato v. French Mkt. Corp, 2015 WL 5254698 at *1 (E.D. La. Sept. 9, 2015), the
plaintiff, a Caucasian male, argued that he was constructively discharged and replaced with
someone outside of his protected class. Plaintiff’s initial replacement was an African American
woman who was hired as the interim director. Id. at 4. However, the defendant hired a Caucasian
male as plaintiff’s permanent replacement. Id. The court held that underlying facts prove plaintiff
was not replaced by someone outside his protected group because his permanent replacement was
a Caucasian male. Id.
The question, then, is whether Dr. Perry was intended to be an interim or permanent
replacement. Although Dr. Perry served as interim CEO for nearly two years, Defendants point to
sworn affidavits of those directly involved in the hiring process, meeting minutes, and employment
agreements, which indicate Defendants’ intent when hiring Dr. Perry was that he would serve as
interim CEO and nothing more.52 Further, a prolonged job search of this type in rural Madison

Parish is not unprecedented. Consequently, demonstrating that a temporary replacement was
outside the protected class is insufficient to establish a prima facie case of discrimination when
the permanent replacement is in the plaintiff's class. Mercer v. Capitol Mgmt. & Realty, Inc., 242
Fed. App’x 162, 163 (5th Cir. 2007). Thus, much like Pizzolato, Dr. Perry was Plaintiff’s interim
replacement. Plaintiff cannot defeat summary judgment on this portion of element four.
However, Plaintiff can still defeat summary judgment by showing he was treated less
favorably than other similarly situated individuals outside his class. To establish the fourth element
of the prima facie case, a plaintiff must show the employer gave preferential treatment to another
employee outside the protected class under nearly identical circumstances. Lee, 574 F.3d at 260.

As stated by the Fifth Circuit, “nearly identical” is not the same as “identical” because “total
identity would be essentially insurmountable.” Willis v. Napolitano, 986 F.Supp.2d 738, 745 (M.D.
La. 2013), aff'd sub nom. Willis v. United States, 576 F.App'x 340 (5th Cir. 2014). Several
circumstances exist which show preferential treatment, such as when the employees being
compared hold the same position or responsibilities, share the same supervisor, or had employment
action decided by the same person, and have comparable history violations. Id.
Both parties fail to brief their argument on this point. Defendants seemingly reiterate their
previous argument that Dr. Perry was not a permanent replacement and therefore, not similarly

52 [Doc. Nos. 55-13,14, 35].
situated. Plaintiff reasserts that evidence shows he was treated less favorably because Dr. Perry
was African American and underqualified to lead as CEO. Once more, the Court finds that Dr.
Perry is not a comparator to Plaintiff. Plaintiff and Dr. Perry do not have comparable history
violations, nor does Plaintiff offer evidence of other similarly situated individuals facing less harsh
disciplinary actions. See Davin v. Delta Air Lines, Inc., 678 F.2d 567 (5th Cir. 1982) (holding

where plaintiff failed to prove that she was replaced, she must establish that the misconduct for
which she was discharged was nearly identical to that engaged in by another employee outside the
protected class who was retained). Thus, Plaintiff's discrimination claims appear to falter on the
fourth element.
While the Court believes that Plaintiff has failed to satisfy element four under McDonnell
Douglas Corp., “the Fifth Circuit has acknowledged precedent for the establishment of a prima
facie case without the traditional fourth element being completely satisfied.” Glover v. Lafayette
Consol. Gov’t., 2024 WL 3498777 at *8 (W.D. La. July 22, 2024).53 Regardless, the Fifth Circuit
has noted that the fourth element is still “certainly material to the question of discriminatory

intent.” Nieto v. L & H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997). Essentially, the Court may
examine the fourth prong with “an expansive understanding” and determine if Plaintiff's race was
a motivating factor in his employer's decision to terminate him. Id. The burden of establishing a
prima facie case is not “onerous” ... a plaintiff need only “prove by a preponderance the evidence
that he was discharged from the position from which he was qualified ‘under circumstances which
give rise to an inference of unlawful discrimination.’” Jones v. W. Geophysical Co. of Am., 669
F.2d 280, 284 (5th Cir. 1982) (citing Texas Dep’t. of Cmty. Aff v. Burdine, 450 U.S. 248 (1981)).

53 Citing Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000), Nieto v. L & H Packing Co., 108
F.3d 621, 624 n. 7 (5th Cir. 1997)), Hornsby v. Conoco, Inc., 777 F.2d 243, 246–47 (5th Cir. 1985), Carson v.
Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).
Using an expansive view, the Court finds that Plaintiff has submitted sufficient evidence
to establish genuine issues of material fact concerning an inference of unlawful discrimination.
First, Plaintiff testified that Washington told Plaintiff of his intention to have an African American
majority board, an African American president CEO, and African American management of the
hospital. Plaintiff memorialized this conversation by email to another board member. However,

Washington does not recall the conversation, creating a genuine issue of material fact. To
corroborate Washington’s alleged wishes of having an African American board, Plaintiff testifies
that after his termination, the remaining Caucasian board members were not given notice of board
member renewal, which caused their terms to expire and essentially terminated their board
memberships. Further evidence shows that African American members were elected after the
Caucasian members’ expiration, which shifted the statistics of the board. Moreover, an inference
can be made as to unlawful discrimination regarding the manner of Plaintiff’s removal. Plaintiff
was not given sufficient notice regarding the reasoning of his removal. As evinced by the record,
Plaintiff was allegedly removed for abandoning his position, yet he only missed one board

meeting.
Accordingly, the Courts finds that a genuine issue of material fact can be made as to an
inference of unlawful discrimination.
B. Legitimate, Nonretaliatory Reason for Termination and Pretext
As indicated above, because Plaintiff established a prima facie case for unlawful
discrimination, the burden shifts to Defendants to produce a legitimate, nonretaliatory reason for
the adverse employment action. Davis v. Fort Bend Cnty., 765 F.3d 480, 490 (5th Cir. 2014).
Defendants “need only produce admissible evidence which would allow the trier of fact rationally
to conclude that the employment decision had not been motivated by racial animus.” Texas Dept.
of Comm. Affairs, 450 U.S. at 257. Defendants assert the reason for Plaintiff’s discharge was his
“intentional, insubordinate, and purposeful refusal to perform the duties of his position by failing
to attend the October 14, 2022, board meeting, under circumstances reasonably deemed to be an
abandonment of his position as Hospital CEO.”54 “Title VII does not protect an employee against
unfair employment decisions; instead, it protects against employment decisions based upon

discriminatory animus.” Jones v. Overnite Transp. Co., 212 Fed.App’x 268, 275 (5th Cir. 2006);
see also Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (“Management does
not have to make proper decisions, only non-discriminatory ones.”).
The decision to terminate Plaintiff based on the belief that he abandoned his position as
CEO and did not attend a board meeting satisfies Defendants’ burden to provide a legitimate, non-
discriminatory basis for its decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (explaining that the burden to present a non-discriminatory reason “is one of
production, not persuasion; it ‘can involve no credibility assessment.’” (quoting St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). The burden therefore shifts back to Plaintiff to show that

Defendants’ asserted justification is pretextual for racial animus.
Because Defendants met their burden of providing a legitimate, nonretaliatory reason of
termination, the presumption of discrimination disappears, and the plaintiff must then either: (1)
offer sufficient evidence to create a genuine issue of material fact that the employer's proffered
reason is not true, but instead is a pretext for a discriminatory purpose (the pretext alternative), or
(2) demonstrate defendant's reason, while true, is only one of the reasons for its conduct, and
another “motivating factor” is the plaintiff's protected characteristic (the mixed-motive
alternative).” Rachid v. Jack In the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). “[I]n conducting

54 [Doc. No. 55-2, p. 32].
a pretext analysis, we do not engage in second-guessing of an employer's business decisions. Title
VII does not require employers to make correct decisions, only nondiscriminatory decisions.”
Burton v. Texas Dep’t of Crim. Just., 584 Fed.App’x 256, 257 (5th Cir. 2014).
Defendant Hospital argues that Plaintiff’s termination was due to abandonment. Defendant
Hospital Board argues that Plaintiff was terminated because of his decision to terminate Nurse

Ross.
The Court finds Plaintiff has provided evidence of pretext for the reasons set out above.55
To briefly summarize, Plaintiff was aware of Washington’s agenda in creating an African
American majority board. And he furnishes evidence for the Court suggesting that the racial
agenda was achieved after three Caucasian members were removed from office. Although the
Court is not to judge the wisdom of business decisions, it is dubious that Plaintiff was removed for
abandoning his position having only missed one board meeting, and Defendants provide no
evidence of the manner and decision of removal happening in the past. While it is undisputed
Plaintiff did miss the board meeting, the evidence given establishes a genuine issue of material

fact as to whether Plaintiff’s absence was, in fact, the reason for his termination.
Accordingly, Defendants’ Motions for Summary Judgment are DENIED to the extent they
seek to dismiss Plaintiff’s claims under Title VII, 42 U.S.C § 1981, and LEDL.
3. 42 U.S.C § 1983 Against All Defendants
Plaintiff alleges that his rights to equal protection, and substantive and procedural due
process were violated because of his discharge. Defendants argue that Plaintiff has not proven
individual causation under § 1983. Plaintiff states in his Complaint that “Defendants violated
Petitioner’s constitutional right to equal protection by discriminating against him on account of his

55 See supra, II(B)(2)(a).
race, and by publicly smearing him as a racist as a means to provide cover for the rehabilitation of
an African American hospital employee who was justifiably fired for cause.”
Section 1983 provides:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress ...

42 U.S.C. § 1983.

To state a viable claim under § 1983, “a plaintiff must (1) allege a violation of rights
secured by the Constitution or laws of the United States and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of state law.” Lauderdale v. Texas
Dep’t. of Crim. Just., Institutional Div., 512 F.3d 157, 165 (5th Cir. 2007) (quoting Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994). Section 1983 and Title VII are “parallel causes
of action.” Cervantez v. Bexar Cnty. Civ. Serv. Comm'n, 99 F.3d 730, 734 (5th Cir. 1996).
Accordingly, the “inquiry into intentional discrimination is essentially the same for individual
actions brought under sections 1981 and 1983, and Title VII.” Lauderdale, 512 F.3d at 166 (citing
Briggs v. Anderson, 796 F.2d 1009, 1019–21 (8th Cir.1986)). But Title VII and § 1983 are different
in at least one important way. See, e.g., Sims v. City of Madisonville, 894 F.3d 632, 640-41 (5th
Cir. 2018) (per curiam). “Unlike Title VII, section 1983 applies to individuals.” Sims, 894 F.3d at
at 632.
“Thus, while the prima facie elements of a Title VII claim may establish an employer’s
liability for intentional discrimination, a § 1983 plaintiff must additionally plead and prove which
actions of the individual defendant caused the harm.” Id. at 641 (quoting Jones v. Hoseman, 812
Fed.App’x 235, 239 (5th Cir. 2020). Section 1983 “is not an available remedy for deprivation of a
statutory right when the right itself”—in this case, the right to be free from discrimination in the
workplace under Title VII— “provides an exclusive remedy for violations of its own terms.”
Johnston v. Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989).
A. Equal Protection

Plaintiff alleges Defendants terminated him because of his race. Defendants provide no
evidence and little argument as to why Plaintiff’s equal protection claim should be dismissed.
Defendants merely lump the §1983 argument as a whole and restate that “for all reasons explained
above as to why Plaintiff’s claims of race-based discrimination under Title VII, [], fail, so too,
does Plaintiff’s claims under §1983.”
Therefore, Defendants’ Motions for Summary Judgment as to Plaintiff’s Equal Protection
claim are DENIED WITHOUT PREJUDICE. Defendants may file another Motion for Summary
Judgment pointing to specific facts and law of why Plaintiff’s equal protection claim should not
proceed. Thus, IT IS ORDERED, that the dispositive motion deadline regarding this particular

claim be extended until March 10, 2025.
B. Substantive Due Process
“To succeed with a claim based on substantive due process in the public employment
context, the plaintiff must show two things: (1) that she had a property interest/right in her
employment, and (2) that the public employer's termination of that interest was arbitrary or
capricious.” Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993)). “A public employee
has a property interest in her job if she has a legitimate claim of entitlement to it, a claim which
would limit the employer’s ability to terminate the employment.” Johnson v. Sw. Miss. Reg’l Med.
Ctr., 878 F.2d 856, 858 (5th Cir. 1989). The property interest in his job depends on state law, i.e.,
Louisiana law in this case. Wallace v. Shreve Mem'l Libr., 79 F.3d 427, 429–30 (5th Cir. 1996).
To demonstrate a property interest in his job under Louisiana law, plaintiff must show either 1)
that she had a contract for a definite term, or 2) that her employer agreed to fire her only for cause.
Id.; see also Cobb v. City of Harahan, 516 Fed.App’x 337, 341 (5th Cir.2013).
Louisiana law recognizes a presumption that an individual's employment is “at will” unless

there is a specific statutory requirement, or the relationship has been altered by either express
contract limiting the conditions of termination. La. Civ. Code Ann. art. 2747; Jackson v. E. Baton
Rouge Par. Indigent Def.'s Bd., 353 So.2d 344, 345 (La. App. 1 Cir. 1977). Unclassified public
employees may be discharged without cause. Guillory v. St. Landry Par. Police Jury, 802 F.2d
822, 825 (5th Cir.1986). Furthermore, a terminated at-will employee cannot claim any due process
protection under the Fourteenth Amendment. Griffith v. Louisiana, 808 F.Supp.2d 926, 940–41
(E.D. La. 2011).
In the instant case, a clear and specific agreement exists for a continued duration and
provides for termination only for cause. Plaintiff had an employment contract with Defendant

Hospital that was renewed on February 28, 2021, and expired on February 28, 2023. Subsequently,
though, Plaintiff was terminated on October 14, 2022. Language throughout the contract suggests
that Plaintiff would only be terminated for cause, confirming that this agreement was not at-will.
Further evidence suggests that the termination of Plaintiff’s property interest could have been
arbitrary or capricious as he was allegedly terminated for missing a singular board meeting.
Additionally, the employment agreement was only between Defendant Hospital and Plaintiff. The
evidence shows that Defendant Hospital Board had no contractual agreement with Plaintiff.
Accordingly, the Motions for Summary Judgment as to Plaintiff’s claim for Substantive
Due Process violations under § 1983 are DENIED as to Defendant Hospital and Defendant RSUI.
Further, the Motion for Summary Judgment as to Plaintiff’s claim for Substantive Due
Process violations under § 1983 is GRANTED as to Defendant Hospital Board as Defendant
Hospital Board was not contractually obligated to Plaintiff under the Employment Agreement.
C. Procedural Due Process
Plaintiff’s allegation56 is that he was terminated without requisite cause and prior notice

provided for in his employment agreement with Defendant Hospital and without a hearing and/or
appeal before Defendant Hospital Board. “[A] public employee who has a property interest in her
job cannot be fired without due process of law.” Wallace, 79 F.3d at 429–30. The fundamental
requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful
manner. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Crowe v. Smith, 151 F.3d 217,
230–31 (5th Cir. 1998).
In addition to Plaintiff’s abrupt removal, he testified that he was not given proper notice
that he would be removed from his position. Plaintiff was removed “immediately,” but he was not
provided with any given reason or opportunity to be heard. Plaintiff was blindly terminated and

replaced on the same day at the same meeting. The minutes reflect no proper hearing or opportunity
to be heard.57 Further, Plaintiff received his termination letter in the mail, however, it, too, failed
to provide Plaintiff with a reason for his termination.
Accordingly, Defendants’ Motions for Summary Judgment as to Plaintiff’s claim for
Procedural Due Process violations under § 1983 are DENIED.
3. Bad Faith Breach of Contract Under Louisiana Civil Code Article 1997
Against Defendant Hospital and Defendant Hospital Board

56 Plaintiff does not allege he was deprived of a liberty interest.
57 [Doc. No. 78-30, p. 2].
Defendants argue that Plaintiff’s own substantial breach of the employment agreement
serves as an affirmative defense to the breach of contract claim.58 However, Defendants only assert
that Plaintiff’s bad faith breach of contract claim should be dismissed and does not discuss any
basic breach of contract claim. Pursuant to La. Civil Code Article 1997, “[a]n obligor in bad faith
is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to

perform.” Official Revision Comment (B) to Article 1997 clarifies that “bad faith” is when “an
obligor intentionally and maliciously fails to perform his obligation.” Courts should not “examine
a party's good faith or bad faith unless and until it finds that the party has failed to perform an
obligation, from which the obligee has sustained damages.” Hairston v. Sun Belt Conf. Inc., 640
F.Supp.3d 580, 589 (E.D. La. 2022) (relying on Lamar Contractors, Inc. v. Kacco, Inc., 189 So.
3d 394 (La. 2016)) (cleaned up).
Because Defendants’ Motions do not request the Court to first find that an obligation was
breached, the Court cannot, at this juncture, make a determination as to the bad faith breach of
contract claim unless and until it has found that a party has breached the contract. Thus, the

Motions for Summary Judgment as to bad faith breach of contract are DENIED.
4. Intentional Infliction of Emotional Distress (“IIED”) Against Defendant
Hospital and Defendant Hospital Board

Plaintiff asserts that the Defendants’ race-based tactics to terminate his employment
constitute extreme and outrageous acts under intentional infliction of emotional distress
(“IIED”).59 Defendants argue that Plaintiff has no evidence to support this claim because he has
not sought any counseling or treatment in connection with the employment action taken and there
is “no evidence of any pattern of deliberate, repeated harassment for a period of time, and the

58 [Doc. No. 55-2, p. 12].
59 [Doc. No. 78-, p. 37].
alleged branding of the plaintiff as a racist emanated from non-employer, non-party individuals,
unrelated to the hospital, to which there is no evidence of any conspiracy or coordinated actions
with defendants.”60
A plaintiff seeking to recover for IIED must establish: (1) that the conduct of the defendant
was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe;

and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional
distress would be certain or substantially certain to result from his conduct. King v. Phelps Dunbar,
L.L.P, 743 So. 2d 181, 185–86 (La. 1999) (internal citations omitted). The defendant’s “conduct
must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id.
However, “[l]iability does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Id.
Here, Plaintiff has failed to create a genuine issue of material fact as to the merits of his
IIED claims. He has presented no evidence demonstrating extreme or outrageous conduct nor has

he provided any evidence that he suffered severe emotional distress. This case lacks behavior “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.”
Ulmer v. Frisard, 694 So.2d 1046, 1049 (La. App. 5 Cir. 4/29/97).
Accordingly, Defendants’ Motions for Summary Judgment as to Plaintiff’s claim for IIED
are GRANTED and Plaintiff’s claim is hereby DISMISSED WITH PREJUDICE.
5. Whistleblower/Retaliation under La. R.S. 23:967 Against Defendant Hospital
and Defendant Hospital Board

60 [Doc. No.55-2, p. 43].
The protection extended by Louisiana’s Whistleblower Statue, § 23:967 covers reprisal for
actions not specifically addressed by Title VII. The triggering events of a claim under § 23:967
are outlined in subsection A of the statute. Section 23:967 provides in pertinent part:
A. An employer shall not reprisal against an employee who
in good faith, and after advising the employer of the
violation of the law:
(1) Discloses or threatens to disclose a workplace act or
practice that is violation of state law.
(2) provides information to or terrifies before any public
body conducting an investigation, hearing, or inquiry into
any violations of law.
(3) Objects to or refuses to participate in an employment act
or practice that is in violation of law.
B. An employee may commence a civil action in a district
court where the violation occurred against any employer
who engages in a practice prohibited by Subsection A of this
Section. If the court finds the provisions of Subsection A of
this Section have been violated, the plaintiff may recover
from the employer damages, reasonable attorney fees, and
court costs.
C. For the purposes of this Section, the following terms shall
have the definitions ascribed below:
(1) Reprisal” includes firing, layoff, loss of benefits, or any
discriminatory action the court finds was taken as a result of
an action by the employee that is protected under Subsection
A of this Section; however, nothing in this Section shall
prohibit an employer from enforcing an established
employment policy, procedure, or practice or exempt an
employee from compliance with such.

For an employee to establish a claim under La. R.S. 23:967, he must prove that his
employer committed an actual violation of state law. Accardo v. Louisiana Health Servs. & Indem.
Co., 943 So.2d 381 (La. App. 1 Cir. 2006).61
Defendants argue that Plaintiff’s claim cannot survive summary judgment because Nurse
Ross was not Plaintiff’s employer. Plaintiff alleges that Defendants terminated him for reporting

61 See Hale v. Touro Infirmary, 886 So.2d 1210 (La. App. 4 Cir. 11/30/04) writ denied, 896 So.2d 1036 (La. 2005);
Puig v. Greater New Orleans Expressway Commission, 772 So.2d 842 (La. App. 5 Cir. 3/9/01), writ denied, 786
So.2d 731 (La. 2001).
the illegal activity of his co-worker, Nurse Ross. Plaintiff fails to include arguments as to why
summary judgment should not be granted on this claim. In any event, even if Plaintiff had briefed
his argument on this point, it would likely not have passed the summary judgment threshold
because the identity of the alleged wrongdoer (Nurse Ross) falls outside the protection of the
statute as Nurse Ross was not Plaintiff’s employer.

Accordingly, Defendants’ Motions seeking summary judgment on Plaintiff’s
Whistleblower/Retaliation claim under La. R.S. 23:967 are hereby GRANTED, and the claim is
DISMISSED WITH PREJUDICE.
6. 42 U.S.C § 1985(3) Conspiracy Against All Defendants

Defendants assert Plaintiff lacks evidence of an agreement between Defendants and any
other party to conspire against Plaintiff on the basis of his race. Plaintiff asserts that he has
produced evidence to support his conspiracy claims against Defendants.
42 U.S.C § 1985(3) provides:
If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, for the
purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State or
Territory the equal protection of the laws; or if two or more persons
conspire to prevent by force, intimidation, or threat, any citizen who
is lawfully entitled to vote, from giving his support or advocacy in a
legal manner, toward or in favor of the election of any lawfully
qualified person as an elector for President or Vice President, or as
a Member of Congress of the United States; or to injure any citizen
in person or property on account of such support or advocacy; in any
case of conspiracy set forth in this section, if one or more persons
engaged therein do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is injured in his
person or property, or deprived of having and exercising any right
or privilege of a citizen of the United States, the party so injured or
deprived may have an action for the recovery of damages
occasioned by such injury or deprivation, against any one or more
of the conspirators.

To state a cognizable claim under § 1985(3), Plaintiff must allege that (1) a racial or class-
based discriminatory animus lay behind the conspiracy and (2) the conspiracy aimed to violate
rights protected against private infringement. Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d
261, 270 (5th Cir. 2001) (citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)); United Bhd. of
Carpenters v. Scott, 463 U.S. 825, 833 (1983); Bray v. Alexandria Women's Health Clinic, 506
U.S. 263, 267–68 (1993).
Here, Plaintiff provides evidence to defeat Defendants’ Motion as to a possible conspiracy
between and among Defendant Hospital Board. Specifically, it is up to the factfinder as to whether
Mitchell and Washington, two board members, conspired against Plaintiff to terminate him and
other White board members in an effort to gain an African American majority board. Plaintiff
testified that he was threatened by Washington when he told Plaintiff, “we intend to have a black
majority board; we intend to have a black president CEO; and we intend to have black management
of this hospital.”62 Washington recalled having a conversation with Plaintiff but does not recall
saying his intentions, which creates a genuine issue of material fact. Moreover, Mitchell attempted
to remove Plaintiff as CEO when he sent an email regarding removal on September 21, 2022. This
fact is significant because Plaintiff was allegedly removed from his position due to missing an
October meeting and abandoning his position. In deposition, however, Mitchell admitted that the
September attempted termination was because of Plaintiff’s actions with Nurse Ross.

Further, after Plaintiff’s termination, two Caucasian board members were not reappointed
because they did not receive notice about submitting a written request for reappointment. What is
doubtful is that Mitchell and Washington were quietly advanced notice of resubmission. This fact

62 [Doc. No. 78-6, p. 13].
bolsters a genuine issue as to Mitchell and Washington’s conspiracy of gaining an African
American majority of the board.
While a jury could find that a conspiracy existed among Defendant Hospital Board63
members, the Motions for Summary Judgment as to this issue are DENIED. However, the Court
finds no genuine issue of material fact as to a conspiracy between Defendant Hospital, by itself, or

with Defendant Board; thus, to the extent Defendant Hospital asserts a Motion for Summary
Judgment as to Plaintiff’s Conspiracy claim, the Motion is GRANTED.
7. Civil Conspiracy Claim against All Defendants
Defendants assert Plaintiff cannot prove that an agreement existed with Defendants and
any other party to violate the Plaintiff’s civil rights in the form of discharge on the basis of his
race. In Opposition, Plaintiff reiterates that all Defendants conspired to deprive him of his civil
rights and that evidence shows a conspiracy existed.
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., 222 So. 3d 1017,
1024 (La. App. 2 Cir. 6/7/17). “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., 151 So. 3d 670, 676 (La. App. 4 Cir.
10/1/14).

63 Because Defendant Hospital Board is a part of Defendant Hospital, the Motion is also DENIED as to RSUI.
The Court sees no need to flesh out this claim element by element for the reasons stated in
the Title VII, LEDL, 42 U.S.C § 1983, and 42 U.S.C § 1985 sections above. Because the Motions
for Summary Judgment were denied on those claims, so too is this claim denied.
8. Attorney Fees and Cost Under 42 U.S.C. § 1988 Against All Defendants
Because the Court has denied the Motion for Summary Judgment regarding § 1981, § 1983,

and § 1985 claims, the Court denies Defendants’ Motions on this claim as well.
III. CONCLUSION

For the reasons set forth herein,

IT IS ORDERED, ADJUDGED, AND DECREED that Defendants’ Motions for
Summary Judgment [Doc. Nos. 55, 64] are GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Motions are
GRANTED to the extent they seek to dismiss Plaintiff’s IIED and whistleblower/retaliation
claims as to all Defendants.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Motion [Doc.
No. 55] is GRANTED as to substantive due process claims against Defendant Hospital Board.
IT IS FURTHER ORDERED that the Motions are DENIED to the extent they seek to
dismiss Title VII, LEDL, § 1981, § 1983 equal protection, procedural due process, bad faith, §
1985 conspiracy, civil conspiracy, and § 1988 claims against all Defendants.
IT IS FURTHER ORDERED that the Motions are DENIED to the extent they seek to
dismiss substantive due process claims against Defendant Hospital and RSUI.
IT IS FURTHER ORDERED that the dispositive motion deadline regarding the equal
protection claim is hereby extended until March 10, 2025.
MONROE, LOUISIANA, this 4th day of February, 2025.

~ (\ NE Nel be
Terry A. Doug Hy)
ited States DistriétJudg

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10793741. Public record. Not legal advice.