Rushing v. Yeargain

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

STEPHEN J. RUSHING

CIVIL ACTION

VERSUS

NO. 19-653-JWD-SDJ

JOHN YEARGAIN, ET AL.

RULING AND ORDER

This matter comes before the Court on the Motion for Summary Judgment and Rule 12(c)

Motion to Dismiss on Behalf of Defendant, Dr. John Yeargain, (Doc. 90) (“Yeargain MSJ MTD”),

filed by Defendant John Yeargain, and the Defendants’ Rule 12 (c) Motion to Dismiss and Motion

for Summary Judgment (Doc. 91) (“Defs.’ MTD MSJ”), filed by Defendants John Crain, Tara

Dupre, Erin Watson Horzelski, and John Yeargain (collectively, “Defendants”). Defendants,

including Yeargain, argue first that Plaintiff’s claims are barred by sovereign immunity and should

therefore be dismissed for lack of jurisdiction, and second that there is no issue of fact that would

entitle Plaintiff to a trial. (Doc. 90 at 1; Doc. 91 at 1.) The Court will grant the Yeargain MSJ MTD

and the Defs.’ MTD MSJ, but Plaintiff will be granted leave to amend on his breach of contract and

defamation claims.

I. BACKGROUND

A. Factual Background

This Court has recounted the alleged facts of this case before. (See Doc. 182.) At the time

of the facts alleged in the Complaint, Plaintiff was a tenured professor at Southeastern Louisiana

University (SLU). (Doc. 1, ¶ 8.) On September 26, 2019, he filed suit against the following

Defendants: Dr. John L. Crain, President and Chief Executive of SLU; Dr. John Yeargain,

Accounting and Financing Professor at SLU; Dr. Erin Horzelski, Biological Sciences Professor at

SLU; and Tara Dupre, the Director of Human Resources at SLU. (Id. at ¶¶ 2–5.) All Defendants

are members of the faculty and/or administration of SLU. (Id.) Plaintiff alleges that prior to April

16, 2018, SLU policies allowed fulltime faculty and staff to receive supplemental compensation

for additional work activities outside of their responsibilities at the university. (Id. at ¶¶ 17, 19.)

On April 16, 2018, SLU repealed this policy. (Id. at ¶ 19.) Plaintiff claims that in the months

following this change, he made various representations to SLU and University of Louisiana

System (ULS) administrators that events related to the repeal violated the SLU fraud policy. (Id.

at ¶¶ 19–42.)

Plaintiff alleges that at SLU Faculty Senate meetings on September 26, 2018, and October

3, 2018, he was prevented from speaking on certain topics and was defamed. (Id. at ¶¶ 43–49.) He

further alleges that his proposed discussion topics were removed from the October 3, 2018,

meeting agenda, and that he was ejected from the meeting. (Id. at ¶¶ 48–49.)

Plaintiff states that he received a notice on January 3, 2019, that the University of Louisiana

System Board would conduct a hearing to consider terminating his employment. (Id. at ¶ 50.)

Plaintiff lists five charges for termination stated by SLU:

a. Insubordination for allegedly refusing to complete a workplace

fitness evaluation, refusing to provide the names of two students

who attended the October 3, 2018 Faculty Senate Meeting, and

refusing to complete an outside employment form;

b. Exploiting students in violation of professional standards of

ethics as he allegedly asked students enrolled in one or more of

his classes to assist him at the October Faculty Senate Meeting,

and asked the students at this meeting to stay behind on his

behalf, allegedly inappropriately exposing them to a faculty

dispute;

c. Uncollegial behavior because of alleged uncollegial and/or

threatening behavior, such as an email wherein Dr. Rushing

stated to Mr. Azuoru “I am afraid for you to meet with me;”

d. Dereliction of duties for allegedly being behind schedule for

Music 438; and

e. Violations of law, board rules, and university policy for

allegedly refusing to complete an outside employment form.

(Id. at ¶ 52.) A hearing was conducted on February 15, 2019, at which Plaintiff alleges

multiple witnesses presented false testimony. (Id. at ¶ 53.) Plaintiff was removed from his full

professor position following this hearing, on February 28, 2019. (Id. at ¶ 9.) He appealed this

decision, which the Board upheld on June 27, 2019. (Id. at ¶ 10.)

B. Procedural Background

Plaintiff filed this suit on September 26, 2019. (Doc. 1.) In this suit, Plaintiff claims that

“denying him the right to present all of his proposals and/or issues in the October 3, 2018 Faculty

Senate meeting violated his free speech rights under La. Const. Art. I, § 7 and the First

Amendment.” (Id. at ¶ 58.) He claims that Defendants unlawfully restricted his speech at the

September 26, 2018, and October 3, 2018, Faculty Senate meetings, which he argues is a further

violation of his First Amendment rights. (Id. at ¶¶ 61–62.)

Next, Plaintiff claims that “Defendants retaliated against him for exercising his free speech

rights by ejecting him from the October 3, 2018, Faculty Senate meeting, and causing his

employment with SLU to be terminated in violation of La. Const. Art. I, § 7 and the First

Amendment.” (Id. at ¶ 66.)

Third, Plaintiff claims that Defendants breached his employment contract by terminating

his “employment for reasons not provided for in the University of Louisiana System Board

Rules[,]” which Plaintiff argues “constitutes a breach of contract[]” in violation of Louisiana state

law. (Id. at ¶¶ 71–73.)

Finally, Plaintiff claims that Defendant Yeargain’s statements at the September 26, 2018,

and October 3, 2018, Faculty Senate meetings constituted defamation in violation of Louisiana

state law. (Id. at ¶¶ 76–78.)

The parties litigated disputes about discovery and expert testimony throughout much of

2021. (See Docs. 35–37, 39, 45–55, 57–60, 62–64, 66–68, 76, 77, 80–85, 94–97.) Defendants filed

the pending Yeargain MSJ MTD and Defs.’ MTD MSJ in October of 2021. (Docs. 90, 91.) However,

the case was administratively stayed and closed on August 8, 2022, due to Plaintiff’s health. (Doc.

136.) The case was reopened on October 13, 2022. (Doc. 140.) The pending Yeargain MSJ MTD

and Defs.’ MTD MSJ were reopened on July 25, 2024. (Doc. 183.)

In addition to this lawsuit, Plaintiff filed a state court petition in the Twenty-First Judicial

District Court for the Parish of Tangipahoa on November 26, 2018. (See Doc. 182 at 3.) This Court

has previously addressed the state suit: the state district court entered judgment on July 1, 2019,

dismissing Plaintiff’s state tort claims of violations of Louisiana’s Open Meetings Law without

prejudice. (Id. at 4.) However, prior to the entry of judgment, Plaintiff had filed an amended and

restated petition, which included additional allegations of Open Meetings Law violations. (Id.) The

district court held a hearing on September 23, 2019, to determine whether the SLU Faculty Senate

met the definition of a “public body” under Louisiana’s Open Meetings Law and entered judgment

in favor of Plaintiff, finding that the SLU Faculty Senate did indeed meet the definition. (Id.) It

held another hearing on November 4, 2019, to determine whether the SLU Faculty Senate violated

Louisiana’s Open Meetings Law, after which it issued written reasons for the judgment and

declined to order any relief for Plaintiff on November 26, 2019, and then dismissed Plaintiff’s

claims with prejudice on January 20, 2020. (Id. at 4–5.)

Plaintiff appealed the district court’s written reasons and the January 20, 2020, judgment.

(Id. at 5; Doc. 177 at 6.) The Louisiana First Circuit Court of Appeal “determined that . . . Rushing

failed to show that the written reasons constituted a valid final judgment and that the January 20,

2020, judgment was not final and appealable where it failed to identify defendants.” (Doc. 177 at

6.) The First Circuit dismissed Plaintiff’s appeal and remanded the case back to the district court.

(Id.) On remand, the district court properly named all defendants and entered judgment against

Plaintiff on August 18, 2021, dismissing his claims with prejudice. (Id.) Plaintiff again appealed

to the First Circuit. (Id. at 7.) The First Circuit affirmed the district court’s August 18, 2021,

judgment on September 16, 2022. (Id. at 15–16.) Plaintiff filed a writ to the Louisiana Supreme

Court, but his writ application was denied. (See Doc. 156-6.)

On September 11, 2023, Defendants filed a motion in this Court titled Defendants’ Rule

12(c) Motion to Dismiss, or in the Alternative, Motion for Summary Judgment Based on Res

Judicata, accompanied by a supporting memorandum. (Doc. 156; Doc. 15-1.) Given that res

judicata is an affirmative defense that may not generally be raised in a 12(b)(6) motion, the Court

considered this a motion for summary judgment. (Doc. 182 at 5–6.) In their motion, Defendants

argued that pursuant to the doctrine of res judicata, Plaintiff’s federal claims were barred by the

final ruling in his state case. (Doc. 156-1 at 1.) Ordinarily, Louisiana state law provides an

exception to res judicata that “applies ‘[w]hen the judgment reserved the right of the plaintiff to

bring another action.’” (Id. at 12 (quoting La. R.S. § 13:4232(3).) Although “[n]either the July 1,

2019 judgment nor the January 20, 2020 judgment reserves Plaintiff’s right to bring another

action[,]” the Court found “an exceptional circumstance that bars res judicata in this case.” (Doc.

182 at 12.) Plaintiff attempted to enforce Louisiana’s Open Meetings Law in the same suit where

he sought tort damages, which “utilize different forms of procedure[,]” leading “the defendants

[to] file[] an exception of improper cumulation and/or joinder.” (Id. at 13.) The state court granted

the state defendants’ exception, but it also “instructed Plaintiff to file a separate suit as to his claim

for tort damages.” (Id.) As such, this Court found that since “(1) the state court directed Plaintiff to

bring his ordinary proceeding claim in a separate suit than that of his summary proceeding claim; and

(2) all Plaintiff’s claims in the present suit would have required an ordinary proceeding had they been

brought in Plaintiff’s state court suit, the Court finds that these ‘complex procedural situations’

constitute exceptional circumstances that bar res judicata in this matter pursuant to La. R.S. §

13:4232(A)(1).” (Id. at 14 (quoting McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC,

2009-1357 (La. App. 1 Cir. 2/12/10), 36 So.3d 272, 279).)

II. Parties’ Arguments

First, with respect to their motion to dismiss, Defendants argue the Court should dismiss

Plaintiff’s claims because “there is no jurisdiction because the claims are barred by sovereign

immunity, and there is no issue of fact for trial as to [] any of the claims asserted in [Plaintiff’s]

Complaint.” (Doc. 91 at 1.) They argue that a) Plaintiff’s employment was terminated by the SLU

Board of Supervisors, b) Plaintiff makes no allegations as to any rules violated by the Board, and

c) the Board is not a named defendant. (Doc. 93 at 2.) They further argue that Plaintiff does not tie

the allegations he makes against the individual defendants to the Board. (Id. at 2–3.)

Defendants argue that although Plaintiff claims to sue Defendant Crain in his personal and

official capacities, Defendant Dupre in her personal capacity, and Defendant Horzelski in her

personal capacity, the allegations involve only their official duties. (Id. at 3–4.) Likewise, although

Plaintiff claims to sue Defendant Yeargain in his individual capacity, Defendant Yeargain argues

that the allegations involve only his official duties. (Doc. 90-1 at 3–4.) Defendants argue that

Plaintiff has not alleged any acts connecting the named defendants to any alleged violations by the

ULS Board of its own rules leading to Plaintiff’s termination. (Doc. 93 at 6.) They argue that

Plaintiff has not alleged any contractual terms or obligations imposed upon any named Defendants

to justify his suit for breach of contract, and he has failed to show that Defendant Crane is able to

give the relief Plaintiff seeks from him of reinstating Plaintiff’s employment. (Id.) Defendants

further argue that all named defendants are entitled to qualified immunity, and that Plaintiff has

not alleged a deprivation of a constitutional right sufficient to overcome this bar. (Id. at 7.) They

assert that Plaintiff received full Due Process with respect to his termination of tenure and

employment. (Id. at 8.)

Next, Defendants argue that because the ULS Board is an arm of the state, it is entitled to

sovereign immunity for its officials and employees unless it waives immunity, which it has not

done. (Id. at 9.) Defendants argue that all SLU defendants were state employees at the time of the

alleged events and are therefore entitled to sovereign immunity. (Id.) It reiterates that there is no

waiver of qualified immunity in this case, regardless of the capacity assigned to Defendants by

Plaintiff, because Defendants assert that all Defendants were acting in their official capacity. (Id.

at 9–10.) Defendants reiterate their assertion that there was no violation of a clearly established

constitutional right to overcome qualified immunity. (Id. at 10.)

With respect to their motion for summary judgment, Defendants argue that there is no

genuine issue as to any material fact, entitling them to judgment as a matter of law. (Id.) They

contend that with respect to Plaintiff’s retaliatory-discharge claim, Plaintiff has not alleged that

Defendants were his employers. Instead, Defendants state that Plaintiff “admits that he was

employed and terminated by the ULS Board,” that Defendant Crain “only made the final

recommendation[,]” “that the ULS Board approved the termination,” and that the ULS Board then

“upheld its decision to terminate Rushing after his appeal.” (Id. at 11–12.) Defendants also argue

that Plaintiff’s speech does not fall under the First Amendment’s protections “if it was made in his

employment capacity rather than as a private citizen[]” and that Plaintiff here was speaking “only

in his employment capacity relative to his personal issues with employment related subjects, and

within the context of performing his job-related duties.” (Id. at 12.) As a result, they argue that

Plaintiff cannot show that his speech qualifies as protected speech, one of the necessary

components for a retaliatory-discharge claim. (Id.) Defendants assert that Plaintiff’s termination

and suspension without pay, the alleged adverse actions, were “a result of his insubordination and

refusal to comply with a directive from SLU that he obtain a fitness-for-duty evaluation[,]” (id. at

12–13), as well as “violating ethical standards, uncollegial behavior, dereliction of duties, and

violation of law or Board policies[,]” (id. at 15), rather than retaliation for his speech. Defendants

argue that Plaintiff cannot show a causal connection between his alleged speech, the September

2018 Faculty Senate Executive Council meeting or October 2018 Faculty Senate meeting, and his

termination; they also argue that the university’s “interest in promoting workplace efficiency”

outweighed Plaintiff’s “interest in speaking on his personal employment related issues[.]” (Id. at

15.)

Defendants point to the two-day-long hearing held by the Tenure Committee, at which they

considered “extensive testimony, cross-examination, . . . the recorded October FS meeting, and . .

. documentary evidence regarding all of the charges[]” as well as the “testimony by Rushing’s

consulting psychiatrist” and at least one other witness called by the Plaintiff. (Id. at 16–17.)

Following this hearing, a majority of the committee voted to recommend Plaintiff’s termination

on all grounds. (Id. at 17.) Defendants argue that Plaintiff’s “willful refusal to disclose two outside

employment jobs for which he received substantial wages was insubordinate and in violation of

the law and ULS/SLU Disclosure of Outside Employment policy,” which “was alone sufficient

grounds for ULS to confirm the recommendations for termination.” (Id. at 18.)

Defendants also point to Plaintiff’s state court case, claiming that the district court found

that the actions taken by ULS and the Defendants at the September 2018 Faculty Senate Executive

Council meeting and the October 3, 2018, Faculty Senate meeting, were the result of Plaintiff’s

own actions and affirmed by state law. (Id. at 18–19.) Defendants argue that the proceedings before

the Workplace Task Force, the Tenure Committee, the ULS Board of Supervisors’ Grievance

Committee, and the Twenty-First Judicial District Court have all resulted in determinations that

Plaintiff’s behavior, rather than his exercise of free speech, was the reason for his suspension and

ultimate termination. (Id. at 19.) As a result, they claim, Plaintiff is unable to prove that his

termination was a form of retaliatory discharge. (Id.)

Defendants argue that Plaintiff is unable to show (1) that he was speaking as a private

citizen rather than a public employee; (2) that he was speaking on matters of public concern rather

than personal employment issues; (3) that his speech rather than other independent employment

concerns led to the adverse employment actions; (4) that any interest he had in speaking on these

matters outweighed ULS’s interest “in the efficient provision of public service, in requesting a

FFDE [fitness for duty evaluation] for safety concerns, or by requiring disclosure of outside

employment to comply with law, not his speech.” (Id. at 19.)

Defendants contend that their request that Plaintiff undergo a fitness for duty evaluation in

line with university policies and procedures, that it “was reasonable and based upon a credible

threat to the safety and well-being of Rushing, his colleagues, students, and staff[,]” and that

Plaintiff’s “own treating psychiatrist testifying on his behalf agreed that the University was

‘reasonable’” in their response. (Id. at 19–20.) Defendants further assert that the fitness for duty

evaluation request was in no way connected to Plaintiff’s speech: “Each and every witness in each

of the previous forums has stated that they either had no idea what ‘issue’ was being presented

and/or that they were only concerned with conduct or particular behavior[.]” (Id. at 20–21.) They

argue that even if Plaintiff could show that his speech played a substantial role in his termination,

the evidence shows that the same decision would have been reached absent his speech in order “to

ensure the safety and well-being of SLU’s employees and students, and to enforce compliance by

all its employees with statutory laws and ethical professional standards[.]” (Id. at 21.) Defendants

additionally argue that the First Amendment’s protections do “not extend to speech that is

materially disruptive or involves substantial disorder or invasion of the rights of others.” (Id.

(citing Chiu v. Plano Independent School District, 339 F.2d 273, 281 (5th Cir. 2003).)

With respect to Plaintiff’s arguments that he was deprived of his First Amendment rights

as a result of not being able to present all of his issues at the September 26, 2018, Faculty Senate

Executive Council meeting and the October 3, 2018, Faculty Senate meeting, Defendants first

argue that these claims must be dismissed as to Defendants Crain and Dupre because they were

not present, were not senators, and had no involvement with these meetings or the preparation for

these meetings. (Id. at 22.) They likewise argue that Plaintiff cannot show a causal link as to

Defendants Horzelski and Yeargain. (Id.). Defendants assert that although Defendants Horzelski

and Yeargain were present at the meetings as members of the Faculty Senate, Plaintiff has not

alleged any facts showing that these Defendants denied his rights to speak; instead, Defendants

claim, Plaintiff was ejected from the Faculty Senate meeting on a nearly-unanimous vote due to

disruptive conduct. (Id.). Furthermore, Defendants claim, Faculty Senate Executive Council

Minutes drafted by Plaintiff show that he did in fact have the opportunity to speak extensively

before the Faculty Senate Executive Council meeting. (Id.) Defendants argue that since Plaintiff

has not shown a genuine dispute of fact as to these issues, the Court should grant summary

judgment. (Id. at 23.)

Defendants then contend that even if Plaintiff could prove that Defendants violated any

clearly established rights, Defendants are still entitled to qualified immunity if their actions were

objectively reasonable. (Id. at 23.) According to Defendants, Plaintiff cannot carry the initial

qualified immunity burden of showing an alleged First Amendment violation; instead, they argue,

his termination was for valid cause following a hearing. (Id. at 24.) Defendants maintain that

Plaintiff has failed to show any specific conduct by the Defendant government officials that

violated Plaintiff’s constitutional rights or that were objectively unreasonable in light of clearly

established law at the time, and that qualified immunity therefore applies. (Id. at 24–25.)

Next, Defendants argue that Plaintiff has not carried his § 1983 pleading burden against

Defendant Crain because a) he has only asserted claims against Defendant Crain in his official

capacity, and b) he has failed to show that Defendant Crain in his official capacity took any actions

under state law that deprived Plaintiff of free speech. (Id. at 26.) As to all Defendants, not just

Defendant Crain, Defendants reiterate their previous arguments that Plaintiff’s statements were

not protected speech because they were made pursuant to his official duties rather than as a private

citizen on a matter of public concern. (Id.) They argue that the First Amendment does not restrict

government employers’ ability to exert managerial discipline based on employee behavior

pursuant to official responsibilities and that Plaintiff’s expressions fall under such an umbrella.

(Id. at 26–27.)

Defendants further contend that Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), does

not apply because Plaintiff does not allege that any official policy leading to an alleged violation

of his constitutional rights. (Id. at 27.) They argue that since vicarious liability does not apply,

Plaintiff must allege that each Defendant has violated the Constitution, and that Plaintiff has not

done so with respect to any of the named Defendants. (Id.) Instead, they argue, Plaintiff only

alleges that each Defendant acted in accordance with University policy and the law, in ways that

did not violate Plaintiff’s First Amendment rights but instead responded to what Defendants argue

was Plaintiff’s disruptive behavior. (Id. at 27–30.) Defendants argue that Plaintiff cannot show a

violation of a constitutional right by any Defendant.

In addition, Defendants argue that Plaintiff’s suit was filed outside of Louisiana’s one-year

prescription statute that applies to suits in federal court under § 1983. (Id. at 31.) They assert that

the wrongful acts or omissions Plaintiff occurred on August 24, 2017; April 16, 2018; May 8, 2018;

June 2, 2018; and July 3, 2018, are barred because the suit was not commenced until September

26, 2019. (Id.).

Finally, with respect to Plaintiff’s state law claims, Defendants again contend that the Court

lacks jurisdiction pursuant to the Eleventh Amendment’s sovereign immunity provision. (Id. at 31–

32.) In addition, Defendants argue that the breach of contract claim must be dismissed under the

summary judgment standard because there is no contract between Plaintiff and any of the named

Defendants. (Id. at 32.) Only the ULS Board had the authority to fire Plaintiff, rather than any of

the named Defendants acting on their own, Defendants assert, and each of the named Defendants—

as well as the Board—acted pursuant to ULS Board Bylaws, Rules, and Policies. (Id. at 32–33.)

Defendants further argue that Plaintiff’s claims for attorney’s fees are not permitted unless

expressly provided for by a written contract, and that his claims for punitive damages in contract

or tort law are expressly precluded by Louisiana law. (Id. at 33–34.) In closing, they again assert

the defense of qualified immunity. (Id. at 34.)

Defendant Yeargain, in his separately filed Yeargain MSJ MTD, focuses on Plaintiff’s

defamation claim against him. (Doc. 90-1.) Defendant Yeargain argues that the Court should

dismiss Plaintiff’s claims because he is entitled to sovereign immunity. (Id. at 3–4.) He also argues

that these claims do not warrant the exercise of supplemental jurisdiction. (Id. at 4.) Defendant

Yeargain further contends that summary judgment should be granted because Plaintiff cannot

establish the required elements of a defamation claim, specifically the falsity of any statements by

Defendant Yeargain, any knowledge of falsity on behalf of Defendant Yeargain, nor any fault or

malice on the part of Defendant Yeargain. (Id. at 5.)

Defendant Yeargain disputes that he made the exact statements that Plaintiff alleges were

defamatory, but admits that he may have said some of the alleged statements. (Id. at 14–15.) With

respect to Defendant Yeargain’s statements that Plaintiff needed medical help and his comments

on Plaintiff’s medical history, Defendant Yeargain points to the testimony of Plaintiff’s treating

psychiatrist at his tenure hearing in February 2019, at which the psychiatrist testified as to

Plaintiff’s history and ongoing diagnosis of Bipolar Type 2. (Id. at 5–6.) According to Defendant

Yeargain, the testimony of Plaintiff’s own expert shows that Plaintiff cannot establish a defamation

claim. (Id. at 6.)

Likewise, Defendant Yeargain points to prior state court findings that Plaintiff’s behavior

was disruptive to argue that Plaintiff cannot establish a defamation claim based on the statement

that Plaintiff was “a disruptor.” (Id. at 6–7.) Defendant Yeargain also notes the statements and

opinions of other witnesses, all of which he argues show that his statements that Plaintiff needed

medical help or counseling were true or founded on a reasonable belief as to their truth. (Id. at 8.)

Defendant Yeargain argues that the Workplace Task Force Committee confirmed his statements in

their recommendation of a psychiatric evaluation. (Id. at 9.) In sum, Defendant Yeargain argues

that Plaintiff is unable to show the falsity of the statements, let alone their defamatory meaning.

(Id. at 9–10.)

Yeargain further argues that he was speaking at a public meeting, “concerning the

questionable conduct of a public figure . . . disrupting a public meeting of the governing body”

and that his statements are therefore constitutionally protected. (Id. at 10.) At the same time,

Defendant Yeargain argues that Plaintiff cannot prove publication because “statements between

employees, made within the course and scope of their employment, are not considered publicized

for purposes of a defamation claim.” (Id. at 17.) Defendant Yeargain also argues that Plaintiff is

unable to show any damages caused by the alleged defamation. (Id. at 18.) He argues that Plaintiff

has not shown that the alleged defamatory statements were made at all, made by Defendant

Yeargain, were false, were made without a reasonable belief in their truth, were published, or

resulted in any damages to Plaintiff. (Id. at 20.) As such, Defendant Yeargain urges the Court to

grant him summary judgment with respect to Plaintiff’s claims for defamation.

In response, Plaintiff reasserts many of the allegations in his Complaint: that he was under

contract with SLU, (Doc. 98 at 1–2); that SLU had a policy in place allowing for outside

compensation from 2014 to April 2018, at which point the head of the Department of Music, Mr.

Newkirk, informed Plaintiff and other faculty and staff that such external compensation would no

longer be allowed due to budgetary issues, (id. at 2); that Plaintiff believed this to be fraud and

alleged as much to Defendant Crain and SLU’s internal Auditor, Mr. Azurou, (id. at 3); that

Plaintiff was not permitted to speak about his reports at Faculty Senate Executive Council and

Faculty Senate meetings on September 26, 2018, and October 3, 2018, (id. at 4); that Defendant

Yeargain defamed Plaintiff at the September 26, 2018, meeting, (id.); that Plaintiff’s proposed

agenda items were removed from the draft agenda for the October 3, 2018, Faculty Senate meeting,

(id. at 4–5); that some individuals reported concerns about Plaintiff to the SLU Police, (id. at 6);

that Plaintiff’s points of order at the October 3, 2018, Faculty Senate meeting were ignored, and

that he was ejected from the meeting despite attempting to speak on matters of public concern,

(id.); that Plaintiff was banned from SLU and required to undergo a fitness for duty evaluation,

(id.); and that he faced accusations of uncollegial behavior, dereliction of duties, exploiting

students in violation of professional ethics, insubordination, and violations of law, Board rules,

and university policy, (id.). Plaintiff disputes each of these charges, arguing that “the Violence in

the Workplace Committee determined that he was not a credible threat[,]” that he was not behind

in Music 438 and had not been given an opportunity to remediate any deficiency, that he did not

exploit students, that he was not required to submit additional outside employment forms, and that

it was not insubordination to refuse to undergo the fitness for duty examination as required by the

university. (Id. at 6–8.)

Plaintiff argues that sovereign immunity does not apply here because each Defendant has

been sued individually rather than in their official capacity, with the exception of Defendant Crain,

who has been sued in both his individual and official capacity. (Id. at 14–15.) Likewise, Plaintiff

argues that Defendants are “persons” under § 1983 because he has sued them in their individual

capacities. (Id. at 15.) Plaintiff further contends that his contract claims are valid under the

Louisiana Constitution, as are his free speech deprivation and retaliation claims. (Id. at 16.) In

addition, Plaintiff maintains that qualified immunity does not apply here because “Defendants

retaliated against him for exercising his free speech rights by preventing him from speaking, by

ejecting him from the October 3, 2018 Faculty Senate meeting, and causing his employment with

SLU to be terminated in violation of La. Const. Art. I, § 7, the First Amendment, and 42 U.S.C. §

1983.” (Id. at 17.) Plaintiff insists that he spoke on matters of public concern. (Id. at 19–20.)

Plaintiff argues that the “right to be free from deprivation of First Amendment speech” is

clearly established. (Id. at 20.) He characterizes his speech as the disclosure of misbehavior by

public officials and argues that he was deprived of the right to speak freely about this matter. (Id.

at 20–21.) Likewise, Plaintiff asserts that the “right to be free from retaliation for exercising his

right to free speech” is clearly established and again characterizes his speech as on matters of

public importance. (Id. at 21.)

Plaintiff further argues that there are genuine issues of material fact on the reasonableness

of Defendants’ actions with respect to the cause for his termination. (Id. at 22–23.)

In addition, Plaintiff contends that Defendants have waived qualified immunity as to the

state law claims by “argu[ing] only the federal law of qualified immunity.” (Id. at 25.)

Plaintiff argues that there are genuine issues of fact with respect to his retaliation claims,

claiming that there is no dispute that he suffered an adverse employment action, (id. at 25 n.126);

arguing once again that he spoke on a matter of public concern, (id. at 25–29); asserting that his

interest in speaking on his concerns outweighed the university’s interest in maintaining safety in

the workplace and ensuring compliance with the law, (id. at 29–30); and arguing that his

suspension and termination was motivated by his speech rather than the causes alleged by

Defendants, (id. at 30–31). Plaintiff again claims that the reasons given by Defendants for his

suspension and termination are pretextual rather than legitimate. (Id. at 31.)

Plaintiff argues that Defendant Dupre was responsible for Plaintiff’s suspension, ban from

SLU’s campus, and fitness for duty evaluation requirement. (Id. at 32.) He likewise reiterates his

arguments that Defendants Crain and Horzelski denied him the right to speak. (Id.)

Plaintiff disputes Defendants’ assertion that some of his claims fall outside of the one year

statute of limitations on § 1983 claims, arguing that he only alleges injuries falling within the one

year timeframe; all other dates are included as background. (Id. at 33.)

Plaintiff argues that his state law claims are viable because Defendants caused SLU to

breach the contract that existed between Plaintiff and SLU; he asserts that Defendant “Crain

terminated Plaintiff and ULS only upheld the termination decision.” (Id. at 34–35.)

In response to the Yeargain MSJ MTD, Plaintiff argues that he was not in fact an employee

of the University of Louisiana System. (Doc. 99 at 2.) Instead, he argues, he was employed by

Southeastern Louisiana University and terminated by Defendant Crain, a decision which was

upheld by the University of Louisiana System Board of Supervisors. (Id. at 2–3.) Plaintiff argues

that his defamation claim against Defendant Yeargain is connected to his § 1983 claims against

Defendants Horzelski and Yeargain for deprivation of his free speech rights, which he contends

the Court should not dismiss. (Id. at 6–8.)

Plaintiff argues that Defendant Yeargain may not assert the defense of sovereign immunity

because he has been sued in his individual capacity. (Id. at 9–10.) Plaintiff disputes that Defendant

Yeargain was employed by ULS, arguing that he was instead employed by SLU. (Id. at 11.)

Plaintiff argues that Defendant Yeargain is not immune under the Eleventh Amendment because

he has been sued in his individual capacity and because he was not employed by ULS. (Id. at 11–

12.)

Plaintiff argues that Defendant Yeargain’s motion for summary judgment on the defamation

claim incorrectly uses the standard for a Rule 12(b)(6) motion. (Id. at 12.) Plaintiff argues that he

has raised genuine issues of material fact as to each of the elements of his defamation claim. (Id.)

He argues that Defendant Yeargain defamed him “by innuendo.” (Id. at 14.) Plaintiff maintains

that Defendant Yeargain lacked basis for his statements, (id. at 13–17), that actual malice is not

required because Plaintiff is not a public official (id. at 17–19), that comments made at the Faculty

Senate and Faculty Senate Executive Council meetings were publications (id. at 19–20), that

Defendant Yeargain acted with reckless disregard as to the truth of his statements (id. at 20–21),

and that Plaintiff has suffered non-pecuniary harms as a result of the alleged defamation, (id. at

21–22).

III. LEGAL STANDARDS

A. 12(b)(6) Motion to Dismiss Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Hamilton v. Dall. Cnty.,

79 F.4th 494, 499 (5th Cir. 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). “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.” Id. (quoting Iqbal, 556 U.S. at 678).

“To be plausible, the complaint’s ‘[f]actual allegations must be enough to raise a right to

relief above the speculative level.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210

(5th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “In deciding whether the complaint states a

valid claim for relief, we accept all well-pleaded facts as true and construe the complaint in the

light most favorable to the plaintiff.” Id. (citing Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.

2008)). The Court does “not accept as true ‘conclusory allegations, unwarranted factual inferences,

or legal conclusions.’” Id. (quoting Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)).

“A claim for relief is implausible on its face when ‘the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct.’” Harold H. Huggins Realty, Inc. v. FNC,

Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).

The Court’s “task, then, is ‘to determine whether the plaintiff has stated a legally cognizable

claim that is plausible, not to evaluate the plaintiff’s likelihood of success.’” Doe ex rel. Magee v.

Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (quoting Lone Star Fund

V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010) (citing Iqbal, 556 U.S. at

678)). “[A] claim is plausible if it is supported by ‘enough fact[s] to raise a reasonable expectation

that discovery will reveal evidence of [the alleged misconduct].’” Calhoun v. City of Houston

Police Dep’t, 855 F. App’x 917, 919–20 (5th Cir. 2021) (per curiam) (quoting Twombly, 550 U.S.

at 556).

Additionally, “[i]n determining whether a plaintiff’s claims survive a Rule 12(b)(6) motion

to dismiss, the factual information to which the court addresses its inquiry is limited to (1) the facts

set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which

judicial notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc.

v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019) (citations omitted). “Although a ‘court

may also consider documents attached to either a motion to dismiss or an opposition to that motion

when the documents are referred to in the pleadings and are central to a plaintiff’s claims,’ . . . the

court need not do so.” Brackens v. Stericycle, Inc., 829 F. App’x 17, 23 (5th Cir. 2020) (per curiam)

(quoting Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir.

2014)). See also Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (using

permissive language regarding a court’s ability “to rely on ‘documents incorporated into the

complaint by reference’” (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007))).

B. Motion for Summary Judgment

Generally, motions for summary judgment are governed by Rule 56 of the Federal Rules

of Civil Procedure, which states that a “court shall 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.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed

must support the assertion by citing to particular parts of materials in the record,” or by “showing

that the materials cited do not establish the absence or presence of a genuine dispute, or that an

adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

However, “the movant ‘need not negate the elements of the nonmovant’s case.’” Pioneer

Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Boudreaux v. Swift

Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc))). That is, “[a] movant for summary judgment need not set forth

evidence when the nonmovant bears the burden of persuasion at trial.” Wease v. Ocwen Loan

Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986) (“[W]e find no express or implied requirement in Rule 56 that the moving party support

its motion with affidavits or other similar materials negating the opponent's claim.”) (emphasis in

original)). “The moving party may meet its burden to demonstrate the absence of a genuine issue

of material fact by pointing out that the record contains no support for the non-moving party’s

claim.” Id. (citing Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 263 (5th Cir. 2002)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts. . . .

The nonmoving party must come forward with specific facts showing that there is a genuine issue

for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (cleaned

up). The non-mover’s “burden is not satisfied with some metaphysical doubt as to the material

facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (cleaned up).

Additionally, “[w]hen evidence exists in the summary judgment record but the nonmovant

fails even to refer to it in the response to the motion for summary judgment, that evidence is not

properly before the district court.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (citing

Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins,

Inc., 953 F.2d 909, 916 (5th Cir. 1992)). “Rule 56 does not impose upon the district court a duty

to sift through the record in search of evidence to support a party’s opposition to summary

judgment.” Id. (citing, inter alia, Ragas, 136 F.3d at 458). See also Nissho—Iwai American Corp.

v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary “that the entire record in the case

. . . be searched and found bereft of a genuine issue of material fact before summary judgment may

be properly entered); cf. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like

pigs, hunting for truffles buried in briefs.”).

Ultimately, “[where] the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co.,

475 U.S. at 587 (citation omitted).

In resolving the motion, the court may not undertake to evaluate the credibility of

the witnesses, weigh the evidence, or resolve factual disputes; so long as the

evidence in the record is such that a reasonable jury drawing all inferences in favor

of the nonmoving party could arrive at a verdict in that party’s favor, the court must

deny the motion. Indeed, even if the moving party comes forward with an

abundance of evidence supporting its theory of the case, the nonmoving party may

nevertheless defeat the motion by countering with evidence of its own, which, if

credited by the fact-finder, would entitle the nonmoving party to a verdict in its

favor. Or, the non-moving party can defeat the motion by demonstrating that the

evidence tendered by the moving party is itself laced with contradictions of

[material] fact.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (cleaned up).

IV. ANALYSIS

A. Statute of Limitations

“Courts considering claims under § 1983 must borrow the relevant state’s statute of

limitations for personal injury actions. Louisiana’s relevant limitations period is one year.” Stringer

v. Town of Jonesboro, 986 F.3d 502, 509 (5th Cir. 2021) (internal quotations and citations

omitted).1 The parties agree that the appropriate statute of limitations for Plaintiff’s § 1983 claims

is one year. (Doc. 93 at 31; Doc. 98 at 33.) This one-year statute of limitations likewise applies to

Plaintiff’s defamation claims. See Merida v. Bd. of Comm’rs of the Se. La. Flood Prot. Auth.-E.,

No. 23-1992, 2024 U.S. Dist. LEXIS 169927 at *23–24, 2024 WL 4252748 at *9–10 (E.D. La.

Sep. 20, 2024). Plaintiff filed suit in this Court on September 26, 2019. (Doc. 1.) Plaintiff argues

that all events that occurred before September 26, 2018, are not alleged injuries; instead, he claims,

they are background information “relevant to his subsequently alleged discriminatory acts.” (Doc.

98 at 33.) The Court dismisses all claims predating September 26, 2018, as barred by the statute

of limitations.

B. Sovereign Immunity

Next, the Court will address Defendants’ arguments that as employees of Southeastern

Louisiana University, they are state officials acting in their official capacity and are therefore

immunized from suit under § 1983. As a preliminary matter, Southeastern Louisiana University is

an institution “under the supervision and management of the Board of Supervisors for the

University of Louisiana System[.]” La. R.S. § 17:3217(A). Plaintiff’s argument that neither he nor

any of the Defendants were ever employees of the University of Louisiana System, but were

instead only employees of Southeastern, fails to comprehend the university system structure.

Defendants simultaneously argue (a) that “the Court lacks jurisdiction pursuant to the

Eleventh Amendment of the U.S. Constitution, which bars suit in Federal courts by citizens of the

state against their own state or a state agency[,]” (Doc. 93 at 5), preventing any suits against

Defendants in their official capacities, and (b) that Plaintiff has failed to show any deprivation of

1 Louisiana’s statute of limitations for personal injury actions is now two years, effective on July 1, 2024. La. Civ.

Code Ann. Art. 3493.1 (2024). However, this is not retroactive. Stanley v. Morgan, 120 F.4th 467, 470 n.1 (5th Cir.

2024) (citing Tort Actions, 2024 La. Acts 423).

a right “by any defendant acting under color of law” in their individual capacities, (id. at 7). The

Supreme Court has stated that “courts may not simply rely on the characterization of the parties in

the complaint” in determining “the real party in interest” in a case. Lewis v. Clarke, 581 U.S. 155,

162 (2017). Given Defendants’ arguments as to their capacities in this suit, the Court will assess

both the capacity in which each Defendant is sued and, based on that determination, whether they

are entitled to sovereign immunity.

Plaintiff repeatedly asserts that he sues all Defendants individually, and Defendant Crain

in his official capacity for declaratory and injunctive relief. (Doc. 98 at 9–10, 14.) Plaintiff seeks

declaratory judgment under § 1983, monetary damages under § 1983, attorney’s fees and costs,

reinstatement or renumeration, and back pay. (Doc. 1 at 16–17.) Specifically, he seeks monetary

damages against Defendant Crain in his individual capacity under § 1983 and declaratory and

injunctive relief in his official capacity under § 1983 (Doc. 98 at 10–11); seeks both monetary and

declaratory relief against Defendant Dupre in her individual capacity under § 1983 (id. at 11); is

unclear what relief is sought against Defendant Horzelski in her individual capacity under § 1983

(id.); and seeks monetary damages against Defendant Yeargain in his individual capacity only for

defamation, (id. at 10; Doc. 99 at 1–2).

The Supreme Court has distinguished between suits brought against defendants in their

personal and official capacities. Hafer v. Melo, 502 U.S. 21, 25 (1991). “[A]n official-capacity suit

is just another way of pleading an action against an entity of which an officer is an agent” and is

therefore “treated as [a] suit[] against the State.” Latiolais v. Cravins, 484 F. App’x 983, 989 (5th

Cir. 2012) (citing Hafer, 502 U.S. at 25). “Personal-capacity suits, on the other hand, seek to

impose individual liability upon a government officer for actions taken under color of state law.

Thus, ‘on the merits, to establish personal liability in a § 1983 action, it is enough to show that the

official, acting under color of state law, caused the deprivation of a federal right.’” Hafer, 502 U.S.

at 25.

While “officials who act for purely personal reasons do not ‘necessarily fail to act “under

color of law[,]”’” Tyson v. Cnty. of Sabine, 42 F.4th 508, 523 (5th Cir. 2022) (quoting United States

v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991)), “[i]t is only ‘[i]f an officer pursues personal

objectives without using his official power as a means to achieve his private aim that he has not

acted under color of state law[,]’” id. (quoting Bustos v. Martini Club Inc., 599 F.3d 458, 464 (5th

Cir. 2010) (cleaned up, emphasis in Tyson)).

Allegations brought against state officials acting in their official capacity are barred by the

Eleventh Amendment’s sovereign immunity provision. “The Supreme Court has ‘held that a State

is not a “person” against whom a § 1983 claim for money damages might be asserted.’” Med.

RX/Sys., P.L.L.C. v. Texas Dep't of State Health Servs., 633 F. App’x 607, 610 (5th Cir. 2016)

(quoting Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 617 (2002)). “This rule

extends to ‘arms of the state,’ and to a state’s ‘officials acting in their official capacities.’” Id.

(quoting Howlett v. Rose, 496 U.S. 356, 365 (1990); Will v. Michigan Dep't of State Police, 491

U.S. 58, 71 (1989)). It is well-established that “an official-capacity suit is, in all respects other than

name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985).

“A person’s capacity need not be pled except to the extent required to show the jurisdiction of the

court.” Robinson v. Hunt Cty., 921 F.3d 440, 446 (5th Cir. 2019) (quoting Parker v. Graves, 470

F.2d 335, 336 (5th Cir. 1973) (per curiam)).

Plaintiff alleges that Defendant Dupre restricted his speech by “suspend[ing] Plaintiff on

[or] about October 31, 2018, bann[ing] him from SLU’s campus, its facilities, off campus activities

and direct[ing] Plaintiff to a ‘workplace psychiatrist’ for a fitness for duty evaluation.” (Doc. 1 at

¶ 37.) He also alleges that she “caused SLU to breach its contract with Plaintiff.” (Doc. 98 at 35.)

Plaintiff presents evidence to show that Defendant Dupre, as Southeastern Louisiana University’s

Director of Human Resources, informed Plaintiff that, pursuant to recommendation from the

University Task Force [], he was required to “receive a psychiatric evaluation.” (Doc. 98-10 at 5.)

Plaintiff then presents evidence that Defendant Dupre, again acting in her official role, informed

him that he was receiving a suspension from the Southeastern Campus, which banned him from

the campus facilities and activities and mandated no contact with anyone associated with the

University except Defendant Dupre or his department head, as a result of his failure “to schedule

and complete a psychiatric evaluation following the recommendation of the workplace violence

committee.” (Doc. 98-12 at 7.) Plaintiff has therefore sufficiently alleged that Defendant Dupre

was acting under color of state law to plead a personal capacity suit. The Court therefore accepts

Plaintiff’s allegation that this suit is brought against Defendant Dupre in her personal capacity only

rather than in her official capacity as Director of Human Resources and declines to grant sovereign

immunity.

Likewise, Plaintiff alleges that Defendant Horzelski, in her role as President of the SLU

Faculty Senate, did not follow proper SLU Faculty Senate procedures in denying him the right to

speak on the topics of his choice at the Faculty Senate Executive Meeting held on September 26,

2018, and at the Faculty Senate Meeting held on October 3, 2018. (Doc. 1 at ¶¶ 16, 44; Doc. 98 at

4–6.) He also alleges that she “caused SLU to breach its contract with Plaintiff.” (Doc. 98 at 35.)

Plaintiff alleges that Defendant Horzelski requested that Plaintiff not send emails to the Faculty

Senate group that had not been previously approved by the Executive council, which he claims

was a prior restraint on his speech. (Doc. 98 at 3–4.) Again, Plaintiff has sufficiently alleged that

Defendant Horzelski was acting under color of state law to plead a personal capacity suit. The

Court will again accept Plaintiff’s claim that he sues Defendant Horzelski only her in personal

capacity and deny sovereign immunity.

Defendant Yeargain is sued both under § 1983 and for state law defamation. With respect

to the § 1983 claim, Plaintiff alleges that Defendant Yeargain restricted his freedom of speech in

violation of the First Amendment and retaliated against him in violation of the First Amendment.

(Doc. 1 at ¶¶ 42–49; Doc. 98 at 17–19, 22.) Specifically, Plaintiff claims that Defendant Yeargain,

in his role as SLU Faculty Senate parliamentarian, prevented Plaintiff from speaking at the Faculty

Senate Executive Council meeting on September 26, 2018, (Doc. 1 at ¶¶ 42–44); prevented him

from speaking at and ejected him from the Faculty Senate Executive meeting on October 3, 2018

(id. at ¶¶ 45–49); and “caused SLU to breach its contract with Plaintiff.” (Doc. 98 at 35.) Plaintiff

has sufficiently alleged that Defendant Yeargain acted under color of state law to plead a personal

capacity suit. The Court will again accept Plaintiff’s claim that he sues Defendant Yeargain only

in his personal capacity and deny sovereign immunity.

Finally, Plaintiff alleges that Defendant Crain terminated his employment with

Southeastern Louisiana University. (Doc. 98 at 9, 18; Doc. 1 at ¶ 14.) Plaintiff argues that this

constitutes retaliation in violation of the First Amendment. (Doc. 98 at 22.) He also alleges that

Defendant Crain worked with members of the Faculty Senate Executive Council to restrict

Plaintiff’s speech. (Doc. 1 at ¶ 47.) Plaintiff provides the letter from Defendant Crain terminating

Plaintiff’s employment at Southeastern Louisiana University. (Doc. 98-14 at 4–5.) The letter is

sent from Defendant Crain in his capacity as university president, (see id.), as provided for by the

SLU Termination/Severe Sanction of Tenured Faculty for Cause policy (Doc. 91-5). The letter

states that the decision was based on the recommendations of the Faculty Hearing Panel and the

Southeastern Louisiana University provost. (Doc. 98-14 at 4.) It also states that Plaintiff

maintained the right to petition the University of Louisiana System Board for a review of the

termination decision within thirty days, and that the termination would not become final until a

determination was made by the Board or until the thirty days elapsed. (Id.) These actions plainly

involve Defendant Crain’s official powers as SLU president, and he was therefore a state official

acting under color of state law in this alleged instance, allowing Plaintiff to plead a personal

capacity suit. Unlike the other Defendants, Defendant Crain is sued both in his individual capacity

and in his official capacity. (Doc. 1 at ¶ 3.)

Plaintiff claims that he seeks declaratory and injunctive relief against Defendant Crain in

his official capacity, as well as monetary damages in his individual capacity for his § 1983 claims.

(Doc. 98 at 15–16.) Again, the Court accepts Plaintiff’s argument that he sues Defendant Crain for

monetary damages in his personal capacity and denies sovereign immunity on these claims. To the

extent that Plaintiff sues Defendant Crain in his official capacity, Defendant Crain is protected by

the Eleventh Amendment’s sovereign immunity provision. However, this provision is not without

exceptions.

Plaintiff argues that “[w]hile the state enjoys Eleventh Amendment immunity, its

officials—when sued for prospective relief in their official capacity—do not.” (Doc. 98 at 13

(citing Ex Parte Young, 209 U.S. 123, 155–56 (1908)).) This is a misstatement of the Ex Parte

Young exception to sovereign immunity. The Ex Parte Young “exception permits a plaintiff to seek

an injunction ‘in federal court [to] prevent[] state executive officials from enforcing state laws that

are contrary to federal law.’” Tawakkol v. Vasquez, 87 F.4th 715, 718 (5th Cir. 2023) (quoting

Whole Women’s Health v. Jackson, 595 U.S. 30, 39 (2021)). The Fifth Circuit has “made clear that

‘[f]or Young to apply, three criteria must be satisfied: (1) A plaintiff must name individual state

officials as defendants in their official capacities; (2) the plaintiff must allege an ongoing violation

of federal law; and (3) the relief sought must be properly characterized as prospective.’” Id. (citing

Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 471 (5th Cir. 2020)).

Plaintiff does not here allege that there is any state law that violates a federal law or

provision of the United States Constitution. Plaintiff does not, for example, challenge the

provisions of the Louisiana State Constitution or Revised Statutes that provide for the structure of

Southeastern Louisiana University. The declaratory relief he seeks is an order “[d]eclaring the

rights of the parties and finding that the aforementioned conduct of the Defendants was and is

violative of 42 U.S.C. § 1983, the First Amendment of the United States Constitution, and La.

Const. Art. I § 2 and in breach of Plaintiff’s contract with Defendant2 SLU[.]” (Doc. 1 at ¶ 79.)

With respect to Defendant Crain, Plaintiff asks the Court to order him “to reinstate the Plaintiff to

the position he held at the time of termination with no loss of seniority or benefits, unless

reinstatement is not feasible, in which case,” Plaintiff seeks an order “requiring the Defendant to

pay Plaintiff front pay for a period of time until he is made whole.” (Id.) A declaration that

Defendants violated Plaintiff’s rights “is fundamentally retrospective because it does not relate to

an ongoing violation of [his] federal rights” and “instead, it pertains to Plaintiff[’s] [] termination.”

Corn v. Miss. Dep’t of Pub. Safety, 954 F.3d 268, 276 (5th Cir. 2020). As such, this claim does not

overcome Defendant Crain’s Eleventh Amendment sovereign immunity. Id. (citing Green v.

Mansour, 474 U.S. 64, 74 (1985) (Brennan, J., dissenting)). On the other hand, the Fifth Circuit

has held that “the Ex Parte Young doctrine [is] an appropriate vehicle for pursuing reinstatement

to a previous job position[.]” Id. (citing Warnock v. Pecos Cty., 88 F.3d 341, 343 (5th Cir. 1996)).

Consequently, Plaintiff’s claims against Defendant Crain for reinstatement survive the Eleventh

Amendment sovereign immunity jurisdictional bar.

2 SLU is not a party in this action.

C. Standing

Plaintiff must demonstrate that he has standing with respect to each of his claims. To do

so, he “must show that [he or] she has suffered, or will suffer, an injury that is ‘concrete,

particularized, and actual or imminent; fairly traceable to the challenged action; and redressable

by a favorable ruling.’” Murthy v. Missouri, 603 U.S. 43, 57 (2024) (quoting Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 409 (2013)). “These requirements help ensure that the plaintiff has ‘such

a personal stake in the outcome of the controversy as to warrant [his or her] invocation of federal-

court jurisdiction.’” Id. (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). “The

plaintiff ‘bears the burden of establishing standing as of the time [he or she] brought th[e] lawsuit

and maintaining it thereafter.’” Id. at 58 (first alterations by this Court; second by Murthy) (quoting

Carney v. Adams, 592 U.S. 53, 59 (2020)). A plaintiff “must support each element of standing

‘with the manner and degree of evidence required at the successive stages of the litigation.’” Id.

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “At the pleading stage, general

factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion

to dismiss we presume that general allegations embrace those specific facts that are necessary to

support the claim.” Hancock Cnty. Bd. of Supervisors v. Ruhr, 487 F. App’x 189, 195 (5th Cir.

2012) (quoting Lujan, 504 U.S. at 561 (internal quotation marks and alterations omitted)). “In

response to a summary judgment motion, however, the plaintiff can no longer rest on such ‘mere

allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ Fed. Rule Civ. Proc.

56(e), which for purposes of the summary judgment motion will be taken to be true.” Lujan, 504

U.S. at 561.

An “injury in fact” must be actual or imminent, concrete, and particularized. Texas v.

United States, No. 23-40653, 2025 U.S. App. LEXIS 1132 at *17 (5th Cir. Jan. 17, 2025) (internal

citations omitted). “The injury can be physical or monetary, an injury to one’s property or to one’s

constitutional rights.” Id. (citing FDA v. Alliance for Hippocratic Med., 602 U.S. 367, 381 (2024)).

Plaintiff alleges that he was injured by having his speech unconstitutionally restrained at the

September 2018 Faculty Senate Executive Council meeting and at the October 2018 Faculty

Senate meeting. (Doc. 1 at ¶¶ 58–64.) He further alleges that he was injured by being terminated

from his job in retaliation for exercising his freedom of speech. (Id. at ¶¶ 66–68.)

With respect to traceability, Plaintiff must show “that there is ‘a causal connection between

the injury and the conduct complained of—the injury must be fairly traceable to the challenged

action of the defendant, and not the result of the independent action of some third party not before

the court.’” Reule v. Jackson, 114 F.4th 360, 367 (2024) (quoting Bennett v. Spear, 520 U.S. 154,

167 (1997)). While “[t]he defendant’s conduct does not need to be ‘the very last step in the chain

of causation,’” id. (quoting Bennett, 520 U.S. at 169), and the plaintiff does not need to show

proximate cause, id. (citing Inclusive Cmtys. Project, Inc. v. Dep’t of Treas., 946 F.3d 649, 655 (5th

Cir. 2019)), the injury cannot rest solely on the actions of a third party. Id. “[S]tanding cannot exist

where the injury ‘depends on the unfettered choices made by independent actors not before the

court and whose exercise of broad and legitimate discretion the courts cannot presume either to

control or to predict[,]’” id. (quoting Lujan, 504 U.S. at 562), but “the causation element can be

satisfied where ‘the defendant’s actions produce a “determinative or coercive effect upon the action

of someone else,” resulting in injury[,]’” id. (quoting Inclusive Cmtys., 946 F.3d at 655). “In such

circumstances, the plaintiff must show ‘that third parties will likely react in predictable ways.’”

Daves v. Dallas Cnty., 22 F.4th 522, 543 (5th Cir. 2022) (citing California v. Texas, 593 U.S. 659,

675 (2021)).

The Supreme Court has said that “[t]he second and third standing requirements—causation

and redressability—are often ‘flip sides of the same coin.’” Alliance, 602 U.S. at 380 (quoting

Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U. S. 269, 288 (2008)). In consequence, “[i]f a

defendant’s action causes an injury, enjoining the action or awarding damages for the action will

typically redress that injury. So the two key questions in most standing disputes are injury in fact

and causation.” Id. at 381.

“Because ‘standing is not dispensed in gross,’ [] ‘plaintiffs must demonstrate standing for

each claim they press’ against each defendant, ‘and for each form of relief they seek[.]’” Murthy

v. Missouri, 603 U.S. 43, 44 (2024) (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 431

(2021)).

At the motion to dismiss stage, the Court accepts Plaintiff’s well-pled allegations as true,

and his allegation of the injury is sufficient to support standing. See Ruhr, 487 F. App’x at 195; see

also Ass'n of Am. Physicians & Surgeons Educ. Found. v. Am. Bd. of Internal Med., 103 F.4th 383,

391 (5th Cir. 2024). However, the parties have conducted discovery, and the motions before the

Court are both to dismiss and for summary judgment. Plaintiff, then, must support his allegations

with specific facts.

Plaintiff’s causes of action, as presented in his Complaint, are as follows:

First, that Defendants deprived him of his free speech rights under the First Amendment

and under the Louisiana State Constitution by denying him the right to speak on all of the issues

of his choice at the Faculty Senate Executive Council meeting on September 26, 2018, and at the

Faculty Senate meeting on October 3, 2018, (Doc. 1 at ¶¶ 58–62);

Second, that Defendants retaliated against him for exercising his free speech rights by

ejecting him from the October 3, 2018, Faculty Senate meeting and causing his employment at

Southeastern Louisiana University to be terminated, in violation of the First Amendment and

Louisiana State Constitution, (Id. at ¶¶ 66–67);

Third, that Defendants caused the University of Louisiana System Board of Supervisors to

terminate Plaintiff’s contract for reasons not provided for in the Board Rules, which Plaintiff

alleges constituted a breach of contract under Louisiana state law, (Id. at ¶¶ 70–74);

And fourth, that Defendant Yeargain defamed Plaintiff at the September 26, 2018, Faculty

Senate Executive Council meeting and the October 3, 2018, Faculty Senate meeting, (Id. at ¶¶ 76–

78).

While Plaintiff makes other allegations in his Complaint and in his other briefings, these

are the only causes of action presented in the Complaint. (Id. at ¶¶ 57–78.) The Court will first

address whether Plaintiff has standing for his two federal causes of action.

i. Plaintiff’s Injuries

Plaintiff’s first alleged injury is the restriction of his freedom of speech at the Faculty

Senate Executive Council meeting on September 26, 2018, and at the Faculty Senate Meeting on

October 3, 2018. (Id. at ¶¶ 58–62.) Given that Plaintiff is a public employee claiming that his right

to speak freely was restricted, the Court looks to the public employee speech doctrine. “To

determine whether the public employee’s speech is entitled to protection, courts must engage in a

two-step inquiry.” Graziosi v. City of Greenville, 775 F.3d 731, 736 (5th Cir. 2015) (citing Lane v.

Franks, 573 U.S. 228, 237 (2014)); see also Gibson v. Kilpatrick, 773 F.3d 661, 666–67 (5th Cir.

2014) (citing Lane, 573 U.S. 228); Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 307 (5th

Cir. 2020) (citing Gibson, 773 F.3d at 667). First, the Court asks whether Plaintiff “spoke as a

citizen on a matter of public concern.” Gibson, 773 F.3d at 666. If he did, the Court will then look

to the “balance[e] [of] the interest in allowing the speech against the interest in penalizing it.” Id.,

773 F.3d at 666–67.

When looking at speech by a public employee, such as a professor at a public university,

see Trudeau v. Univ. of N. Tex., 861 F. App’x 604, 609 (5th Cir. 2021), the Court looks to “whether

the employee spoke as a citizen on a matter of public concern or pursuant to his or her official

duties.” Corn, 954 F.3d at 276 (citing Garcetti v. Ceballos, 547 U.S. 410 (2006)). “[A] public

employee's speech is made pursuant to his or her official duties when it is ‘made in the course of

performing his employment.’” Id. (quoting Anderson v. Valdez, 845 F.3d 580, 595 (5th Cir. 2016)).

“Speech raises a matter of public concern ‘when it can “be fairly considered as relating to any

matter of political, social, or other concern to the community,” or when it “is a subject of legitimate

news interest; that is, a subject of general interest and of value and concern to the public.”’” Bevill

v. Wheeler, 103 F.4th 363, 375 (5th Cir. 2024) (quoting Lane, 573 U.S. at 241 (quoting Snyder v.

Phelps, 562 U.S. 443, 453 (2011)).

As “a citizen who works for the government[,]” a public employee does not give up all off

their free speech rights. Garcetti, 547 U.S. at 419. “Many citizens do much of their talking inside

their respective workplaces, and it would not serve the goal of treating public employees like ‘any

member of the general public[]’ to hold that all speech within the office is automatically exposed

to restriction.” Garcetti, 547 U.S. at 420–421 (quoting Pickering v. Bd. of Educ., 391 U.S. 563,

573 (1968)).

On the other hand, the Supreme Court has stated that “[t]o presume that all matters which

transpire within a government office are of public concern would mean that virtually every

remark—and certainly every criticism directed at a public official—would plant the seed of a

constitutional case.” Connick v. Myers, 461 U.S. 138, 149 (1983). The Supreme Court has held

that “when public employees make statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes[.]” Garcetti, 547 U.S. at 421. Put another

way, “while the First Amendment invests public employees with certain rights, it does not

empower them to ‘constitutionalize the employee grievance.’” Id. at 420 (quoting Connick, 461

U.S. at 154). The Supreme Court has clarified that “the fact the speech touched on matters related

to public employment [is] not enough to render it government speech.” Kennedy v. Bremerton Sch.

Dist., 597 U.S. 507, 529 (2022) (citing Lane, 573 U.S. at 240).

Not surprisingly, the parties here characterize the topic of Plaintiff’s speech differently:

Plaintiff claims that he was speaking out about fraud and misconduct within the university, (Doc.

98 at 28), while Defendants argue that Plaintiff was raising concerns about his terms of

employment. (Doc. 93 at 15.) “It is well established that speech exposing or otherwise addressing

malfeasance, corruption or breach of the public trust, . . . touches upon matters of public concern.”

Graziosi, 775 F.3d at 738 (citing Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001);

Brawner v. City of Richardson, Tex., 855 F.2d 187, 191–92 (5th Cir. 1988)). See Lane, 573 U.S. at

241; Garcetti, 547 U.S. at 425. Accord Bevill, 103 F.4th at 376.

Plaintiff’s exhibits show that on Saturday, September 1, 2018, he emailed the Faculty

Senate with his “initial draft/thoughts” on a proposal to discuss “Professional Ethics” at the next

Faculty Senate meeting. (Doc. 98-6 at 16.) He later replied to himself on September 17, 2018, with

an attachment about “Ethical Standards regarding the hiring of tenured faculty[.]” (Id.) Plaintiff

also includes emails showing his concerns that a proposal “regarding Executive Council

responsibilities” was removed from the agenda for the October 3, 2018, Executive Council

meeting. (Id. at 18.) His other proposals, which were not removed, were to discuss “Academic

freedom and faculty governance” and “Tenure/Promotion and Annual Evaluation guidelines[.]”

(Id.)

Plaintiff’s self-transcribed minutes from the September 26, 2018, meeting show him

speaking extensively about the parliamentary procedures followed at the meeting—specifically,

whether the meeting was correctly following Robert’s Rules of Order and University bylaws with

respect to keeping minutes and approving agendas. (Doc. 98-7.) At no point in these minutes do

topics of malfeasance, corruption, or breach of the public trust come up. (Id.) At no point does

Plaintiff attempt to raise them. (Id.)

Likewise, at the October 3, 2018, Faculty Senate meeting, Plaintiff’s own self-transcribed

minutes show him raising concerns about the agenda and the parliamentary procedures followed

at the meeting. (Doc. 98-13.) Although another member mentions Plaintiff’s allegations of fraud,

Plaintiff at no point attempts to speak on this topic. (Id. at 2.) Instead, his focus remains on

parliamentary procedure, the content of the agenda, the process for creating the agenda, and

whether all of his proposals, listed above, were included on the agenda. (Id. at 3–7.) Once again,

none of the proposals Plaintiff alleges were excluded from discussion were on the topic of

corruption, malfeasance, or breach of the public trust. (Doc. 98-6 at 18.)

While Plaintiff’s disputes with the University may have originated with his concerns that

the change in policy regarding supplemental pay constituted fraud, that was not the topic of

discussion at either of meetings at which Plaintiff alleges his freedom of speech was restrained.

Plaintiff has failed to show that he spoke as a citizen on a matter of public concern at either the

September 26, 2018, or the October 3, 2018, meetings. As such, he has failed to show that his

speech was entitled to protection at either of these meetings. Plaintiff has therefore failed to show

an injury related to the alleged restriction of his speech at these meetings.

Plaintiff’s second alleged injury is his termination, which he alleges was retaliation for

exercising his right to free speech. Plaintiff has shown that he was terminated from his position

(98-14 at 4–5), sufficiently alleging an actual, concrete, particularized injury.

ii. Traceability

Although Plaintiff has alleged an injury with respect to his termination, he must also show

that this injury is traceable to each Defendant. See Murthy, 603 U.S. at 44.

1. Defendant Dupre

Plaintiff fails to establish standing with respect to Defendant Dupre. Once again, Plaintiff

has not established a cognizable injury with respect to the September 2018 and October 2018

meetings; even if he had done so, however, Plaintiff has not alleged that Defendant Dupre was

present at either of those meetings. Plaintiff alleges only two actions taken by Defendant Dupre

that are not prescribed under the statute of limitations: that she “suspended Plaintiff on about

October 31, 2018, banned him from SLU’s campus, its facilities, off campus activities and directed

Plaintiff to a ‘workplace psychiatrist’ for a fitness for duty evaluation,” (Doc. 1 at ¶ 37,) and that

she made allegedly false statements at Plaintiff’s tenure hearing on February 15, 2019, (id. at ¶

53.)

Plaintiff does not show that his termination is traceable to Defendant Dupre. Plaintiff was

given due process for his termination in the form of a tenure hearing on February 15, 2019, at

which an Administrative Law Judge presided and thirteen panel members heard evidence. (Doc.

90-5.) Plaintiff was represented by counsel at this hearing, where the University had the burden of

proof and the panel acted as jury. (Id. at 3, 11, 18.) The panel considered the following five charges:

insubordination, exploiting students in violation of professional standards of ethics, uncollegial

behavior, dereliction of duties, and violations of law, board rules, and university policy. (Doc. 90-

11 at 1–2.) The panel unanimously found that Plaintiff had committed multiple acts of

insubordination, exploited students in violation of professional standards of ethics, and committed

uncollegial and threatening behavior; a majority of the members found that Plaintiff was derelict

in his duties and had violated law, board rules, and university policy. (Id.) A majority of the

members voted in favor of termination. (Id. at 2.)

As required by the SLU Termination/Severe Sanction of Tenured Faculty for Cause policy,

(Doc. 91-5), the panel provided its report to Defendant Crain, cc’ing the provost, who is not a

defendant in this action. The provost, after reviewing the panel’s report, recommended termination

to Defendant Crain. (Doc. 91-6.) The Termination Policy provides that “[t]he President will make

a final recommendation regarding termination or severe sanction of the faculty member to the

Board within fifteen working days of receiving the Provost’s recommendation.” (Doc. 91-25 at 3.)

The University bylaws provide that “[e]ach institution shall have a written policy for due

process concerning academic dismissal for tenured faculty. This policy shall provide for hearings

before a committee that includes faculty members. Its findings and recommendations shall be

forwarded to the chief executive officer of the university who shall make a final determination.”

(Doc. 91-3 at 10.) The bylaws also require exhaustion of “all administrative procedures at the

institutional level before an appeal can be made to the Board.” (Id. at 8.) A “member of the

academic staff who has exhausted due process procedures at the institutional level may petition

the Board within 30 days when the institution is in session for a review and no official action shall

be taken by the institution until a final determination is made by the Board.” (Id. at 10.)

Here, Plaintiff received a letter from Defendant Crain informing him of Defendant Crain’s

decision, based on the recommendations of the faculty panel and the provost, to terminate his

employment. (Doc. 98-14.) This letter informed Plaintiff of his right to petition the Board for

review within 30 days, as well as the fact that the termination was not final until the Board

reviewed it, or after 30 days if Plaintiff chose not to appeal it. (Id. at 4.) Plaintiff did choose to

appeal his termination, which the Grievance Committee for the Board reviewed on June 27, 2019.

(Doc. 91-3 at 13.) After giving Plaintiff and a UL System attorney an opportunity to speak, the

Grievance Committee deliberated and voted unanimously to recommend that Plaintiff’s appeal be

denied. (Doc. 91-3 at 14–15.) At the full meeting of the Board of Supervisors that same day, the

Grievance Committee presented its recommendation; Plaintiff was given the opportunity to speak.

(Id. at 17.) In response to a question from the Board, a UL System attorney affirmed that all

procedures had been followed with respect to Plaintiff’s grievance. (Id.) The Board then voted to

deny Plaintiff’s appeal of his termination, at which point Plaintiff’s termination became final. (Id.)

Defendant Dupre was not a member of the panel that recommended Plaintiff’s termination,

(Doc. 91-5); she was not the provost who likewise recommended Plaintiff’s termination, (Doc. 91-

6); she was not the University President who approved those recommendations to terminate

Plaintiff’s employment, (Doc. 98-14); she was not a member of the University of Louisiana System

Board of Supervisors Grievance Committee that voted to recommend denying Plaintiff’s appeal,

(Doc. 91-3 at 14); and she was not a member of the University of Louisiana System Board of

Supervisors that voted to deny Plaintiff’s appeal and make his termination final, (Doc. 91-3 at 17.)

As such, Plaintiff cannot show that his termination is in any way traceable to Defendant Dupre.

Plaintiff has failed to establish standing with respect to Defendant Dupre with respect to

his free speech or retaliation claims.

2. Defendant Horzelski

While Plaintiff alleges that Defendant Horzelski was present at the September 2018 and

October 2018 meetings, he has not established that the alleged restriction of his speech at these

meetings was a cognizable injury. Even if it were, Plaintiff cannot show that any of his alleged

injuries are traceable to Defendant Horzelski. With respect to the meeting on September 26, 2018,

Plaintiff has not alleged any specific acts on the part of Defendant Horzelski that prevented him

from speaking. (See Doc. 98-12 at 2.) Plaintiff has not shown that any alleged restriction on his

speech at the September meeting was traceable to Defendant Horzelski.

Likewise, Plaintiff has not shown that any alleged deprivation of his speech at the meeting

on October 3, 2018, was traceable to Defendant Horzelski. Plaintiff’s own minutes from the

meeting, which he presents, show that Defendant Horzelski repeatedly deviated from the agenda

to give Plaintiff the opportunity to speak. (Doc. 98-13.) Ultimately, Plaintiff alleges that Defendant

Yeargain moved for Plaintiff’s removal from the meeting, a motion which was seconded by another

faculty senator not named in this suit. (Id. at 7.) Defendant Horzelski then called for a vote on

Defendant Yeargain’s motion. (Id. at 8.) As per Plaintiff’s minutes, there were no nays and only

one abstention; all other votes were in favor of Plaintiff’s removal from the meeting. (Id.) Plaintiff

does not allege that each of senators who voted in favor of his removal could be predicted to vote

in such a way in response to Defendant Horzelski calling for a vote. See Daves, 22 F.4th at 543.

He does not allege that Defendant Horzelski calling for a vote produced a determinative or coercive

effect on any of those senators. Reule, 114 F.4th at 367. Plaintiff cannot, in fact, show that his

removal from the meeting is traceable to Defendant Horzelski.

For the same reasons that the Court analyzed with respect to Defendant Dupre, Plaintiff

cannot show traceability to Defendant Horzelski for his retaliation claim.

Plaintiff has failed to establish standing against Defendant Horzelski with respect to his

free speech or retaliation claims.

3. Defendant Yeargain

Once again, the Court notes that Plaintiff has not established an injury with respect to his

alleged deprivation of speech at the September 2018 and October 2018 meetings; however, even

if he had done so, Plaintiff has not established traceability to Defendant Yeargain. As with

Defendant Horzelski, the parties agree that Defendant Yeargain was present at both the September

and October 2018 meetings. (Doc. 1 at ¶¶ 43, 45; Doc. 93 at 22.) Plaintiff presents evidence

demonstrating that he was allowed to speak extensively at each of these meeting. Plaintiff’s own

exhibits show a) that he spoke extensively and “without interruption” on his areas of concern at

the September 26, 2018, Faculty Senate meeting, (Doc. 98-7 at 5–11); b) that agenda items were

typically agreed upon in advance, (Doc. 98-11 at 2); c) that Plaintiff did not communicate his

planned topics of discussions for the October 3, 2018, meeting in advance, (id.); and d) that he was

given time on the agenda for October 3, 2018, to present at multiple points, (id. at 2–3). Similarly,

Plaintiff’s own minutes show him talking extensively at the October 3, 2018, meeting, before being

ejected from the meeting for failing to respect the meeting agenda or time limits set on individual

contributions. (Doc. 98-13.)

Plaintiff has not, in fact, established any deprivation of his speech at either the September

2018 meeting or October 2018 meeting, let alone a constitutional deprivation, that can be traced

to Defendant Yeargain. For the same reasons that the Court analyzed above with respect to

Defendant Horzelski, Plaintiff cannot show traceability to Defendant Yeargain for his claim

regarding his removal from the October 3, 2018, meeting.

For the same reasons that the Court analyzed with respect to Defendants Dupre and

Horzelski, Plaintiff cannot show traceability to Defendant Yeargain for his retaliation claim.

4. Defendant Crain

With respect to Defendant Crain, Plaintiff alleges that his injury is his termination, which

he argues is retaliation for exercising his right to free speech. The Court has analyzed these

allegations in the sovereign immunity context above. The Fifth Circuit has “noted that the Article

III standing analysis and Ex parte Young analysis significantly overlap, such that a finding of

standing tends toward a finding that a plaintiff may sue the official under the Ex parte Young

exception.” Book People, Inc. v. Wong, 91 F.4th 318, 335 (cleaned up). Here, the Court has found

that the Ex Parte Young exception applies to Defendant Crain.

Defendants argue that Defendant Crain “only made the final recommendation” to terminate

Plaintiff, “that the ULS Board approved the termination,” and that the ULS Board then “upheld its

decision to terminate Rushing after his appeal.” (Doc. 93 at 11–12.) Plaintiff points to the letter he

received informing him of Defendant Crain’s decision, based on the recommendations of the

faculty panel and the provost, to terminate Plaintiff’s employment at Southeastern Louisiana

University. (Doc. 98-14 at 4–5.) The letter also informed Plaintiff of his right to petition the

University of Louisiana Board of Supervisors for review of his termination within thirty days, as

well as the fact that the termination was not final until the Board reviewed it or until the time for

appeal elapsed without Plaintiff exercising his right to appeal. (Id. at 4.)

Plaintiff did choose to appeal his termination, which the Grievance Committee for the

Board reviewed on June 27, 2019. (Doc. 91-3 at 12.) After giving Plaintiff and a UL System

attorney an opportunity to speak, the Grievance Committee deliberated and voted unanimously to

recommend that Plaintiff’s appeal be denied. (Id. at 14–15.) At the full meeting of the Board of

Supervisors that same day, the Grievance Committee presented its recommendation; Plaintiff was

given the opportunity was speak. (Id. at 17.) In response to a question from the Board, a UL System

attorney affirmed that all procedures had been followed with respect to Plaintiff’s grievance. (Id.)

The Board then voted to deny Plaintiff’s appeal of his termination, at which point Plaintiff’s

termination became final. (Id.)

Here, Plaintiff argues that regardless of the recommendations of the panel and provost, and

regardless of the later decision of the Board on appeal, it was Defendant Crain who made the

decision to terminate his employment. (Doc. 98 at 9.) In the letter notifying Plaintiff of his

termination, Defendant Crain describes the termination as “my decision.” (Doc. 98-14 at 4.)

Defendants argue that Defendant Crain merely recommended that Plaintiff’s employment be

terminated, and it was the Board that made the final decision. (Doc. 93 at 11–12.) Defendants argue

that the appeals process took the ultimate termination decision out of Defendant Crain’s hands.

(Id. at 33.) However, the Board simply upheld the termination on appeal, (Doc. 91-3 at 12–17);

had Plaintiff chosen not to appeal the decision, the termination would still have occurred.

Furthermore, University System Bylaws provide that “[t]he Board grants authority to the

presidents of the colleges and universities within the University of Louisiana System, or their

designees, to hire or dismiss any classified employee in compliance with state law and appropriate

Civil Service Commission regulations. All such action shall be deemed approved by the System

Head and Board and no further action by either shall be required.” (Id. at 7.)

Plaintiff has adequately alleged traceability to Defendant Crain with respect to his

termination claim. Likewise, looking to the University Bylaws and Plaintiff’s past appointment

letters, Plaintiff has adequately alleged that Defendant Crain could reinstate him to his position,

establishing redressability. (Doc. 91-28; Doc. 98-8 at 32, 33.) Plaintiff has established standing for

his claim that Defendant Crain terminated his employment as retaliation for Plaintiff exercising

his right to free speech.

However, Plaintiff has not established standing for his federal causes of action as to any

other Defendants. His federal claims against Defendants Dupre, Horzelski, and Yeargain are

dismissed for lack of standing.

D. Plaintiff’s § 1983 Claim

The Court now examines Plaintiff’s § 1983 claim. Plaintiff claims that he was unlawfully

terminated in retaliation for exercising his right to free speech, in violation of 42 U.S.C. § 1983.

(Doc. 1 at ¶¶ 65–68, 79.) “Section 1983 provides a private right of action for damages to

individuals who are deprived of ‘any rights, privileges, or immunities’ protected by the

Constitution or federal law by any ‘person’ acting under the color of state law.” Stotter v. Univ. of

Texas at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007) (quoting 42 U.S.C. § 1983). A § 1983

claim requires that a plaintiff “(1) allege a violation of a right 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.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting

James v. Tex. Collin Cty., 535 F.3d 365, 373 (5th Cir. 2008)).

Even where a plaintiff sufficiently alleges a § 1983 claim, the defendants may be protected

by qualified immunity. Allen v. Hays, 65 F.4th 736, 743 (5th Cir. 2023). Qualified immunity serves

to “protect[] government officials ‘from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). It provides “immunity from suit rather than a mere defense to liability.”

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). In determining whether qualified immunity is

appropriate, courts apply a two-prong test asking whether the plaintiff has demonstrated “a

violation of a constitutional right” and whether “the right at issue was ‘clearly established’ at the

time of the defendant’s alleged misconduct.” Pearson, 555 U.S. at 232. This two-prong test need

not be applied in any particular order. Id. at 236.

In a § 1983 claim implicating qualified immunity, “the complaint ‘must plead specific facts

that both allow the court to draw the reasonable inference that the defendant is liable for the harm

[] alleged and that defeat a qualified immunity defense with equal specificity.’” Allen, 65 F.4th at

743 (quoting Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020)). The factual standard is still

“the minimal specificity that would satisfy Twombly and Iqbal.” Id. (quoting Arnold, 979 F.3d at

267). For each claim, then, a plaintiff must plead specific facts to (1) allege a violation of a

constitutional right by a person acting under the color of state law and (2) demonstrate that the

right was clearly established at the time of the defendant’s misconduct. At the summary judgment

stage, rather than merely pleading with factual specificity, “the plaintiff must show that (1) the

official violated a statutory or constitutional right, and (2) the right was clearly established at the

time.” Bevill, 103 F.4th at 379 (emphasis added) (internal quotes and citations omitted). Finally,

within the Fifth Circuit, courts must “examine each officer’s actions independently to determine

whether [they are] entitled to qualified immunity.” Solis v. Serrett, 31 F.4th 975, 981 (5th Cir. 2022)

(citing Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007)).

While Defendants argue that Plaintiff has not stated a claim for which relief may be granted

pursuant to Rule 12(b)(6), both Plaintiff and Defendants have introduced extensive facts into the

record. Defendants’ Rule 12(b)(6) motion and motion for summary judgment are presented

together, as is the opposition. Because both parties rely upon factual materials outside of the

pleadings, the Court evaluates whether Plaintiff has met his summary judgment burden with

respect to his surviving § 1983 claim.

Here, Plaintiff alleges retaliation by Defendant Crain, who was acting as President of

Southeastern Louisiana University at the time of Plaintiff’s termination. (Doc. 1 at ¶ 3, 14, 66–68;

Doc. 98 at 27.) In the Fifth Circuit, there are four elements to an employment-based First

Amendment retaliation claim: “(1) the plaintiff suffered an adverse employment decision, (2) the

plaintiff's speech involved a matter of public concern, (3) the plaintiff's interest in speaking

outweighed the governmental defendant's interest in promoting efficiency, and (4) the protected

speech motivated the defendant's conduct.” Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004)

(citing Lukan v. N. Forest Indep. Sch. Dist., 183 F.3d 342, 346 (5th Cir. 1999)).

Neither party contests that termination is an adverse employment decision. However, as

the Court has already analyzed, Plaintiff has not adequately alleged that he spoke or attempted to

speak on matters of public concern at either the September 2018 or October 2018 meetings. Supra,

Part IV(C)(i). Plaintiff does not allege or present any facts to show the Court that he discussed

matters of public concern at these meetings. Instead, he discussed parliamentary procedure, the

process for creating the agendas for faculty senate meetings, and his proposals on professional

ethics in hiring faculty, the Executive Council’s responsibilities, academic freedom, faculty

governance, and tenure were included on the agenda. (Doc. 98-6 at 16, 18; Doc. 98-7; Doc. 98-

13.) None of these were allegations of misfeasance, corruption, or breach of the public trust, nor

did Plaintiff ever attempt to raise those topics at these meetings. See Graziosi, 775 F.3d at 738.

Granted, Plaintiff claims that he made allegations prior to the September 2018 meeting that

his supervisors had committed fraud by changing his department’s policy permitting for

compensation for outside employment. (Doc. 1 at ¶¶ 18–21, 24–34, 42.) As the Court has

previously addressed, see supra, Part IV(A), these allegations fall outside of the statute of

limitations, but Plaintiff argues that they provide background for his retaliation claim. (Doc. 98 at

33.) Plaintiff alleges that when Interim Head of the Department of Music and Performing Arts

Dale Newkirk stated that it was “not financially sustainable” for full-time faculty to continue to

receive supplemental compensation for outside employment, he committed fraud by

misrepresenting facts. (Doc. 1 at ¶¶ 18–21.) Plaintiff extends this allegation to various other SLU

officials, including Defendant Crain. (Id. at ¶¶ 21, 30.) Plaintiff further claims that “the

administration’s attempts to conceal who was responsible for the changes was in violation of the

SLU Fraud policy.” (Id. at ¶ 24.) Plaintiff does not explain how this would have been in violation

of the fraud policy, other than arguing that there were “misrepresentations of fact.” (Id. at ¶ 30.)

Plaintiff claims that “Dr. Crain’s August 24, 2017 appointment letter to all tenured faculty was

intended to induce them to part with something of value which they owned[,]” i.e., outside

employment. (Id. at ¶ 31.) Plaintiff presents communications that he sent to various SLU

administration and faculty members, including all members of the Music and Performance Faculty,

alleging fraud. (Docs. 98-3, 98-5 at 1, 98-6 at 1–14.) He also presents a column he published in a

local newspaper claiming he was censored by the university. (Doc. 98-5 at 2.) In this column,

Plaintiff makes no allegations of fraud, corruption, or any misconduct other than a failure to follow

parliamentary procedures. (Id.) Plaintiff argues that he was suspended from the university and

ordered to undergo a fitness for duty evaluation “[i]n response to” these communications and to

emails he made to administrators and to the Faculty Senate regarding the alleged fraud. (Doc. 1 at

¶ 37.)

Accepting Plaintiff’s argument that the speech predating the statute of limitations provides

background later events, Plaintiff has failed to show either the third or fourth factor for a

retaliatory-discharge claim: he has not shown that his interest in speaking outweighed Defendants’

interest in promoting efficiency or that the protected speech motivated the Defendants’ conduct.

With respect to the third prong of the retaliatory-discharge claim, “[t]he Pickering

balancing test undertaken by courts to address this element of a First Amendment retaliatory-

discharge claim seeks to ‘promote the individual and societal interests that are served when

employees speak as citizens on matters of public concern and to respect the needs of government

employers attempting to perform their important public functions.’” Bevill, 103 F.4th at 378

(quoting Garcetti, 547 U.S. at 420 (emphasis added in Garcetti) (discussing Pickering, 391 U.S.

at 568-69)). Provided that the first two prongs are met, an employee “must face only those speech

restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti,

547 U.S. at 419. “The Supreme Court has previously recognized as pertinent considerations

‘whether the statement impairs discipline by superiors or harmony among co-workers, has a

detrimental impact on close working relationships for which personal loyalty and confidence are

necessary, or impedes the performance of the speaker’s duties or interferes with the regular

operation of the enterprise.’” Bevill, 103 F.4th at 378 (quoting Rankin v. McPherson, 483 U.S. 378,

388 (1987)).

Here, Plaintiff alleges that nearly every member of the SLU administration with whom he

interacted—the Interim Head of the Department of Music and Dramatic Arts, the Dean of College

of Arts and Humanities, the Provost, the Internal Auditor, and the President—committed fraud by

requiring compliance with the new policy prohibiting compensation for outside employment,

(Doc. 1 at ¶¶ 18–34), and this led to his refusal to comply with the new policy and his refusal to

submit to a fitness for duty evaluation. (Doc. 93 at 15–16; Doc. 98-14 at 1–2.) The Tenure Hearing

panel concluded that these refusals constituted insubordination and violations of law, board rules,

and university policy. (Doc. 98-14 at 1–2.) Plaintiff disputes that these conclusions were justified,

but he does not dispute that he refused to comply with the new policy by submitting updated

outside employment forms or undergo a fitness for duty evaluation with a university psychiatrist.

(See Doc. 98 at 8.)

Plaintiff sent repeated emails to the entire music department, (Doc. 98-3), and to the

Faculty Senate, (Doc. 1 at ¶¶ 35, 36, 40, 41), and behaved in ways that deviated from professional

norms in the Faculty Senate meetings, (see Doc. 98-10 at 1–4). This interfered with co-worker

harmony, had a detrimental effect on relationships between Plaintiff and others in the SLU Faculty,

and interfered with the regular operation of university faculty and administration, as evidenced by

complaints to the SLU Police Department and the Violence in the Workplace Task Force regarding

Plaintiff’s behavior. (Doc. 98-10 at 1–5.) Plaintiff does not dispute this.

Plaintiff had multiple options to address the alleged fraud he believed was occurring at

SLU. (See Doc. 1 at ¶¶ 23, 29, 32.) In addition to internal SLU processes, Plaintiff published a

letter in a local paper. (Id. at ¶ 46.) At no point does Plaintiff allege, much less show, that any

member of the SLU faculty or administration objected to this publication. (See Doc. 98 at 5 (stating

merely that Defendant Horzelski saw the article and informed the provost of its existence).)

Plaintiff argues only that Defendants objected to his forms of communication that interfered with

regular university administration. Plaintiff does not dispute the underlying facts here—that he

refused to comply with University policies and requests, that he sent repeated emails to faculty

email lists, or that his behavior disturbed Faculty Senate meetings. Pursuant to Fifth Circuit

precedent and upon the undisputed facts, the Court holds that Plaintiff has not shown that his

interests in speaking in the manner he preferred outweighed the public university employer’s

interests in promoting efficiency. See Graziosi, 775 F.3d at 741; Lumpkin v. Aransas Cty, 712 F.

App’x 350, 359–360 (5th Cir. 2017).

Finally, Plaintiff has not shown that his protected speech—allegations of fraud on the part

of public officials—in any way motivated Defendant Crain’s actions in terminating his

employment. Indeed, Plaintiff alleges that he was terminated “because of complaints filed by

members of the Faculty Senate Executive Council.” (Doc. 1 at ¶ 50.) Plaintiff presents the

conclusions of the Tenure Hearing panel, which found after a hearing at which Plaintiff was

represented by counsel and had the opportunity to present evidence, bring witnesses, and testify,

that “all five charges alleged by the university administration were supported[.]” (Doc. 98-14 at

1–2.) Although Plaintiff attempts to dispute the Tenure Hearing’s findings on each of these charges,

at no point in his Complaint does Plaintiff make any factual allegations that his termination was

caused by his allegedly protected speech. (Doc. 1 at ¶¶ 50–56.) Plaintiff makes only conclusory

allegations that because he does not believe his termination was warranted on the grounds charged,

it must have been “pretextual and a mask for retaliation for exercising and attempting to exercise

his free speech rights under La. Const. Art. I, § 7 and the First Amendment.” (Id. at ¶ 55.) This is

insufficient to allege causation for his termination.

Likewise, Plaintiff repeatedly asserts that his employment was terminated “because he sent

‘numerous emails.’” (Doc. 98 at 7, 19, 31.) However, the Hearing Panel’s recommendation to

Defendant Crain cites to “numerous emails” not in reference to Plaintiff’s statements or speech,

but in reference to “[t]he numerous emails and in-person testimony explaining Dr. Rushing’s

behavior at two separate Faculty Senate Executive Council Meetings and the October Faculty

Senate Meeting[, which] gave the panel serious concern.” (Doc. 98-14 at 1.) The Panel

unanimously agreed that these emails and witness accounts “revealed a pattern of hostile behavior

to faculty and staff.” (Id.) Plaintiff at no point ties his termination to his allegations of fraud. He

attempts to argue that “[a]fter complaining about the conduct of Defendants Horzelski and

Yeargain, Dr. Rushing was ejected from this October 3rd FS meeting. Dr. Rushing was retaliated

against for accusing Defendants Crain and other colleagues of fraud as he was suspended and then

terminated for not acting ‘collegially’ by making ‘verbal and written attacks against colleagues

and the university,’ which were in reality Plaintiff’s allegations of fraud.” (Doc. 98 at 22.)

As the Court has already found, Plaintiff at no point discussed or attempted to discuss his

allegations of fraud at the October 3, 2018, meeting—he discussed matters of parliamentary

procedure and university hiring. Plaintiff’s leap from the October 2018 meeting to his allegations

of fraud is not rooted in any facts before the Court. Likewise, Plaintiff’s argument that

“Defendants’ purported legitimate, non-discriminatory reason for Dr. Rushing’s suspension and

termination . . . were actually pretexts for free speech retaliation[]” relies on his attempts to cast

doubt on Defendants’ cause for termination rather than showing any causation between his

allegations of fraud and his ultimate termination. (Doc. 98 at 31.)

Defendants have argued that Plaintiff fails to state a claim for relief, that he fails to show a

violation of a clearly established constitutional right necessary to overcome Defendant Crain’s

qualified immunity defense, and that summary judgment should be granted because Plaintiff has

failed to show the elements of a retaliatory-discharge claim. (Doc. 93 at 5–11.) The Court agrees

that Plaintiff has failed to show that he spoke on matters of public concern within the statute of

limitations; he has failed to show that his interest in speaking on matters of public concern prior to

the statute of limitations outweighed the government employer’s interest in promoting efficiency;

and he has failed to show anything beyond legal conclusions that his speech was the cause for his

termination. Plaintiff has therefore not shown a violation of his First Amendment right with respect

to his retaliatory discharge claim. Plaintiff has not carried his summary judgment burden, and

because he does not show a violation of a clearly established constitutional right, Defendant Crain

is entitled to qualified immunity.

E. Plaintiff’s State Law Claims

All of Plaintiff’s federal law claims have now been dismissed. Plaintiff’s remaining claims,

for defamation and breach of contract, are state tort claims between residents of the same state.

The Court “may decline to exercise supplemental jurisdiction over a claim” if it “has dismissed all

claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c). Indeed, the Fifth Circuit has

recognized that “[t]he general rule is that a court should decline to exercise jurisdiction over

remaining state-law claims when all federal-law claims are eliminated before trial[.]” Brookshire

Bros. Holding v. Dayco Prods., 554 F.3d 595, 602 (5th Cir. 2009); see Miller v. Dunn, No. 24-

10668, 2025 U.S. App. LEXIS 210 at *5, 2025 WL 32818 at *2 (5th Cir. Jan. 6, 2025). While the

investment of extensive judicial resources may provide for an exception from the general rule, the

inquiry is fact-specific. Brookshire Bros., 554 F.3d at 602. “[W]hen a district court declines to

exercise jurisdiction over remaining state law claims following the dismissal of all federal-law

claims and remands a suit after investing a significant amount of judicial resources in the litigation

. . . , that court has abused its discretion under 28 U.S.C. § 1367.” Id. at 602 (collecting cases).

This case was filed in 2019; extensive discovery has been conducted and multiple

discovery disputes have been resolved by this Court; the docket contains over 150 filings; the

Court has now rendered jurisdictional and substantive rulings after an extensive review of the

record; and the trial is less than a month away. The Court declines to remand to state court after

investing such extensive judicial resources. See id. at 602–03.

i. Breach of Contract

Plaintiff alleges that the University of Louisiana System breached his employment

contract. (Doc. 1 at ¶¶ 69–75.) He later argues instead that “the contract existed between him and

SLU” and that “Defendants caused SLU to breach this contract by causing his termination and

resulting damages.” (Doc. 98 at 34.) Neither the University of Louisiana System nor SLU is a party

to this action; both would be entitled to sovereign immunity if they were.

Under Louisiana law,

“The action for intentional interference with contractual rights is a very

narrow one, with five elements a plaintiff must prove to recover: (1) the existence

of a contract or legally protected interest between the plaintiff and the corporation;

(2) the corporate officer's knowledge of the contract; (3) the officer's intentional

inducement or cause of the corporation to breach the contract or his intentional

rendition of its performance impossible or more burdensome; (4) absence of

justification on the part of the officer; and (5) causation of damages to the plaintiff

by the breach of contract or difficulty of its performance brought about by the

officer.”

Benoist v. Jackson Nat’l Life Ins. Co., 364 So. 3d 1162, 1167 (La. Ct. App. 2023). Setting

aside the parties’ disputes with respect to the contract, the Court has already analyzed causation on

the part of each of the Defendants with respect to Plaintiff’s termination. Plaintiff presents no

additional causation arguments or facts in support of his breach of contract claim. As analyzed

above, Plaintiff has failed to show that Defendants Dupre, Horzelski, or Yeargain were in any way

involved in his termination.

Plaintiff alleges that he brings suit against Defendant Crain in both his individual and

official capacities. (Doc. 1 at ¶ 3.) Plaintiff is unclear in his Complaint which of his claims are

against Defendant Crain in his personal capacity versus his official capacity; however, he is clear

that when Defendant Crain terminated his employment, he was acting “as the President of SLU.”

(Id. at ¶ 14.) Likewise, in his prayer for relief, Plaintiff requests that the Court order Defendant

“Crain in his official capacity, to reinstate the Plaintiff to the position he held at the time of

termination.” (Id. at ¶ 79.) In his opposition to Defs.’ MTD MSJ, Plaintiff states that he “has

asserted only a claim against Dr. Crain in his official capacity as President of SLU for declaratory

and injunctive relief.” (Doc. 98 at 15–16 (emphasis in original).) He specifies that he “has sued

Defendants Crain, Dupre and Horzelski in their individual capacities (not in their official

capacities) for money damages under 42 U.S.C. § 1983.” (Id. at 15.) Given that Plaintiff states

only that he sues Defendant Crain in his individual capacity under § 1983, the Court finds that

Plaintiff’s non-§ 1983 claims against Defendant Crain are in his official capacity.

As the Court analyzed above, the Eleventh Amendment generally bars suits against the

state, its agencies, and state officials. While the Ex Parte Young exception applied with respect to

the alleged violation of federal law, it does not apply to violations of state law. Williams v. Reeves,

954 F.3d 729, 736 (5th Cir. 2020) (citing NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 (5th

Cir. 2015)). Plaintiff’s breach of contract suit against Defendant Crain is barred by the Eleventh

Amendment’s sovereign immunity provision.

ii. Defamation

Plaintiff brings a defamation claim against Defendant Yeargain. A claim for defamation

under Louisiana law requires the following four elements: (1) a false and defamatory statement

concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or

greater) on the part of the publisher; and (4) resulting injury. Fitzgerald v. Tucker, 98-2313 (La.

6/29/99), 737 So. 2d 706, 715; Porter v. Dauthier, No. 14-41, 2014 U.S. Dist. LEXIS 164819,

2014 WL 6674468, at *5 (M.D. La. Nov. 25, 2014) (citing Trentecosta v. Beck; 96-2388 (La.

10/21/97), 703 So. 2d 552, 559).

Under Louisiana law, there are three key questions “in the determination of whether a given

communication is defamatory.” Johnson v. Purpera, 320 So. 3d 374, 388 (La. 5/13/2021). “The

first is whether the communication was reasonably capable of conveying the particular meaning

or innuendo ascribed to it by the plaintiff. The second is whether that meaning is defamatory in

character. And, finally, the third question is whether the meaning in question was in fact conveyed

to and understood by the recipient of the communication. The first two questions are reserved for

resolution by the court. The third is for the jury or the trier of fact to decide.” Id. (citing Sassone v.

Elder, 626 So. 2d 345, 352 (La. 10/18/1993); Restatement (Second) of Torts § 614 (1977)).

On the other hand, defamation by innuendo “occurs when one publishes truthful statements

of fact and those truthful facts carry a false defamatory implication about another ... In other words,

defamatory meaning can be insinuated from an otherwise true communication.” In re Baxter, No.

01-26, 2001 U.S. Dist. LEXIS 26001, 2001 WL 34806203, at *16 (W.D. La. Dec. 20, 2001)

(quoting Fitzgerald, 737 So. 2d at 717 (internal quotation marks and citations omitted)).

The publication element “does not require that the defamatory comment be published to

the general public, but is satisfied by communication to a person other than the one defamed.”

Weber v. Lockheed Martin Corp., No. 00-2876, 2001 U.S. Dist. LEXIS 3488, 2001 WL 274518,

at *5 (E.D. La. Mar. 20, 2001) (quoting Com. Union Ins. Co. v. Melikyan, 424 So. 2d 1114 (La.

App. 1st Cir. 1982)). Under Louisiana law, communication between officers and agents of the same

corporation, and in relation to their duties for the corporation cannot be construed as

communication to a third party for purposes of establishing the “publication” element of a

defamation action. Id. Notably, failure to prove any element invalidates a defamation claim. Weber,

2001 U.S. Dist. LEXIS 3488, 2001 WL 274518, at *5 (citing Estiverne v. Louisiana State Bar

Assoc., 863 F.2d 371, 374 (5th Cir. 1989)).

Defendant Yeargain argues that the Court should grant summary judgment because Plaintiff

has failed to establish the elements necessary to show defamation. (Doc. 90-1 at 4.) Defendant

Yeargain’s defamatory statements, as alleged by Plaintiff, were “that Plaintiff needed ‘medical

help,’ that he should be expelled from the Faculty Senate for being disruptive, and that everything

was Plaintiff’s ‘imagination.’” (Doc. 1 at ¶ 76.) Plaintiff further alleges that Defendant Yeargain

defamed him “by recommending that Plaintiff obtain counseling, because he was ‘out of touch

with reality.’” (Id. at ¶ 77.)

First, with respect to falsity, Defendant Yeargain argues that Plaintiff “makes only

conclusory assertions that Yeargain made these statements ‘with knowledge of their falsity . . .and

without having reasonable grounds for believing in their truth.’” (Doc. 90-1 at 5 (citing Doc. 1 at

¶ 78.) Defendant Yeargain argues that he merely “expressed opinions regarding Rushing’s

behavior” and that “he had reasonable grounds for believing his opinions were grounded in truth

based on prior dealings with Rushing and his personal interactions with him[.]” (Id.) In response,

Plaintiff argues that the statements in question were defamation by innuendo, which “‘occurs when

one publishes truthful statements of fact, and those truthful facts carry a false, defamatory

implication.’” (Doc. 99 at 13 (quoting Johnson v. Purpera, 2020-01175 (La. 05/13/21); 320 So. 3d

374, 389).) Plaintiff does not specifically allege either that Defendant Yeargain’s statements were

false, and therefore potentially defamatory, or that they were truthful, and therefore potentially

defamation by innuendo.

As Plaintiff asserts, defamation by innuendo “occurs when one publishes truthful

statements of fact, and those truthful facts carry a false, defamatory implication about another.”

Fitzgerald v. Tucker, 737 So. 2d 706, 717 (La. 6/29/1999) (citing Schaefer v. Lynch, 406 So. 2d

185, 188 (La. 1981); Sassone, 626 So. 2d at 353–54). At minimum, however, this requires some

allegation from Plaintiff that the statements from Defendant Yeargain were both factual and did

carry a false and defamatory implication. Plaintiff argues merely that “[a] reasonable jury could

find that these published statements . . . implied that Rushing was unfit and/or not competent to

perform his duties as Vice-President of the FS[]” and “that such comments lowered Rushing ‘in

the estimation of the community,’ or deter[ed] others from associating or dealing with [him], or

otherwise expose[d] [him] to contempt or ridicule.’” (Doc. 99 at 14 (citing Fitzgerald, 737 So. 2d

at 716).)

Defamation, including defamation by innuendo, does not apply to expressions of opinion.

Fitzgerald, 737 So. 2d at 716–719. “If a statement expresses an opinion, unless the opinion implies

a false and libelous fact, a defamation action will not succeed.” Johnson, 320 So. 3d at 394.

However, “if a statement of opinion is accompanied by an express statement of fact, that express

statement of fact may be actionable if it is defamatory, false, and concerns another.” Fitzgerald,

737 So.2d at 717. “Moreover, if a statement of opinion implies that certain facts exist, then such a

statement, even though couched in terms of an opinion, could certainly give rise to a defamation

action if the implied factual assertions are defamatory and false.” Id. (citing Freeman v. Cooper,

414 So. 2d 355 (La. 1982.)). That said, “‘the factual inference created by the statement of opinion

must be ascertainable by a reasonable person with some degree of certainty. Otherwise, juries

would be asked to engage in guessing-games about possible uncomplimentary inferences that can

be drawn from statements of opinion, and the First Amendment protections afforded in this area

would become worthless.’” Id. (quoting Bussie v. Lowenthal, 535 So. 2d 378, 378 (La.

12/12/1988)) (cleaned up). “In sum, an expression of opinion is actionable only if it implies the

existence of underlying facts ascertainable by a reasonable person with some degree of certainty,

and the implied factual assertions are false, defamatory, made with actual malice, and concern

another.” Id. “As a practical matter, [] ‘the crucial difference between statement of fact and opinion

depends on whether ordinary persons hearing or reading the matter complained of would be likely

to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing

fact.’” Johnson, 320 So. 3d at 394 (quoting Mashburn v. Collin, 355 So. 2d 879, 885 (12/13/1977)).

Here, Plaintiff alleges that Defendant Yeargain stated at the September 26, 2018 meeting:

“Steven, either you get medical help . . . or I am going to recommend you

be expelled from this body. You are a disrupter. You need medical help. You think

you’re God’s gift to everyone. Everyone who questions you is dumb and insane.

You are the one who needs medical help just like you did 20 years ago. You

obviously got that help because you straightened up for about 10 years. Now you

are right back into your concept that you are the only person in the world and

everything else is just your imagination and you can control us. I am not going to

be bored by your bullshit anymore. So either go to the place, go with the program,

or get out now.”

(Doc. 1 at ¶ 43.) In addition, Plaintiff alleges that at the October 3, 2018, meeting, Defendant

Yeargain “recommend[ed] that Plaintiff obtain counseling, because he was ‘out of touch with

reality.’” (Doc. 1 at ¶ 45.) Plaintiff points specifically to the statements “that Plaintiff needed

‘medical help,’ that he should be expelled from the Faculty Senate for being disruptive, and that

everything was Plaintiff’s imagination[,]” as well as the “recommend[ation] that Plaintiff obtain

counseling, because he was ‘out of touch with reality’” as defamatory. (Id. at ¶¶ 76–78.)

Defendant Yeargain’s alleged recommendation that Plaintiff obtain counseling and medical

help was an expression of opinion—that he believed Plaintiff needed and should get counseling or

medical help. While it implies the existence of facts (i.e., that Plaintiff had a medical condition

requiring counseling or medical help, referring to past medical help), Plaintiff has not disputed the

truthfulness of these facts or alleged them to be false.

Likewise, Defendant Yeargain’s alleged statement that he was going to recommend

Plaintiff be expelled from the Faculty Senate for being disruptive was a statement of opinion on

Defendant Yeargain’s part, which again implied the existence of a fact—here, Plaintiff’s

disruptiveness. Again, Plaintiff has not disputed that he was disruptive.

Defendant Yeargain’s alleged statement that “everything else is just your imagination” is

again, a statement of opinion rather than fact, without any reference to what “everything else”

might be. (Doc. 1 at ¶ 43.) While Defendant Yeargain’s alleged statements that Plaintiff formerly

required medical help approximately 20 years previously and that he “straightened up for about 10

years” were not opinions, Plaintiff has not alleged that they were defamatory—not as false

defamatory statements of fact, nor as statements of opinion implying false defamatory statements

of fact, nor as truthful statements carrying defamatory implications. See Johnson, 320 So. 3d at

389 (citing Fitzgerald, 737 So. 2d at 716–17). Plaintiff has not alleged that any other statements

in the quoted paragraph are defamatory or false.

In sum, Plaintiff attempts to argue that several statements that “may or may not be true”

are defamation by innuendo merely by virtue of being about a private individual’s private affairs,

simply because of the conclusions others might draw based upon those statements. (Doc. 99 at 14.)

This ignores Louisiana precedent on defamation. Plaintiff could have alleged that these statements

are false, and therefore defamatory but he has not alleged falsity. He could have alleged that these

statements, although expressions of opinion, imply facts that are false; he has not alleged that they

imply any false facts. Finally, he could have alleged that these statements are truthful statements

of fact that lead to defamatory implications. Plaintiff has also not alleged that the statements he

points to as defamatory by innuendo are truthful statements of fact. Instead, the Court finds that

each statement Plaintiff points to as defamatory by innuendo is an expression of opinion; he does

not make any allegations as to the falsity of the facts they might imply. In addition, Plaintiff does

not make any allegations about the statement that he previously obtained medical help, which was

not an expression of opinion.

Because each of the statements Plaintiff alleges is defamatory is instead an expression of

opinion, the Court dismisses the defamation claims against Defendant Yeargain.

V. LEAVE TO AMEND

“[A] court ordinarily should not dismiss the complaint except after affording every

opportunity to the plaintiff to state a claim upon which relief might be granted.” Byrd v. Bates, 220

F.2d 480, 482 (5th Cir. 1955). Likewise, “‘[o]rdinarily, when a complaint is dismissed for lack of

jurisdiction, including lack of standing, it should be without prejudice.’” Green Valley, 969 F.3d at

468 (quoting Williams v. Morris, 614 F. App’x 773, 774 (5th Cir. 2015) (per curiam)).

Federal Rule of Civil Procedure 15(a) “requires a trial court to grant leave to amend freely,

and the language of this rule evinces a bias in favor of granting leave to amend.” Jones v. Robinson

Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (cleaned up). See Fed. R. Civ. P. 15(a). While

“[l]eave to amend is in no way automatic . . . , the district court must possess a ‘substantial reason’

to deny a party’s request for leave to amend.” Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic

Ass'n, 751 F.3d 368, 378 (5th Cir. 2014) (quoting Jones, 427 F.3d at 994 (citation and internal

quotation marks omitted)). “[L]eave to amend the complaint should be refused only if it appears

to a certainty that the plaintiff cannot state a claim.” 5B Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1357 (3d ed. 2016). “The court may deny leave to amend,

however, if the defects are incurable or the plaintiffs have already alleged their best case.” Pierce

v. Hearne Indep. Sch. Dist., 600 F. App’x 194, 200 (5th Cir. 2015) (citing Great Plains Trust Co.

v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002); Bazrowx v. Scott, 136

F.3d 1053, 1054 (5th Cir. 1998)).

Here, Plaintiff has failed to show standing with respect to his § 1983 claims against

Defendants Dupre, Horzelski, and Yeargain. See supra, Part IV(C). This dismissal will therefore

be without prejudice. Despite years of discovery and opportunities to amend his pleadings,

however, Plaintiff did not show an injury or traceability to these Defendants with respect to his

alleged deprivation of free speech, and he did not show traceability to these Defendants with

respect to his alleged retaliation. Instead, concedes facts that make it impossible to show standing

as to these Defendants. The defects here are therefore incurable, and leave to amend would be

futile.

Defendant Crain’s Motion for Summary Judgment with respect to Plaintiff’s § 1983 claim

for retaliation will be granted, since Plaintiff has failed to establish the violation of a constitutional

right. Because this is a summary judgment determination, these claims will be dismissed with

prejudice, and Plaintiff will not be given leave to amend.

Plaintiff has failed to allege jurisdiction with respect to his breach of contract claims against

Defendant Crain, which are barred by the Eleventh Amendment’s sovereign immunity provision.

He has failed to show standing as to Defendants Dupre, Horzelski, and Yeargain. These claims will

therefore be dismissed without prejudice, and Plaintiff will be given leave to amend.

Plaintiff has failed to state a claim with respect to his defamation claims against Defendant

Yeargain; these claims will be dismissed without prejudice, and Plaintiff will be given leave to

amend.

Plaintiff is reminded of his obligation to have a good faith basis in law and fact before

amending his petition. See Fed. R. Civ. P. 11.

VI. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion for Summary Judgment and Rule 12(c) Motion to

Dismiss on Behalf of Defendant, Dr. John Yeargain (Doc. 90) and the Defendants’ Rule 12 (c)

Motion to Dismiss and Motion for Summary Judgment (Doc. 91) are GRANTED. Defendant

Dupre, Defendant Horzelski, and Defendant Yeargain’s Motion to Dismiss is GRANTED with

respect to Plaintiff’s § 1983 claims for deprivation of free speech and retaliation; Plaintiff has

failed to establish standing as to these Defendants. Plaintiff’s § 1983 claims are DISMISSED

WITHOUT PREJUDICE. Defendant Crain’s Motion for Summary Judgment with respect to

Plaintiff’s § 1983 claim for retaliation is GRANTED; Plaintiff has failed to show a violation of a

constitutional right.

IT IS FURTHER ORDERED that Defendant Dupre, Defendant Horzelski, and

Defendant Yeargain’s Motion to Dismiss is granted with respect to Plaintiff’s breach of contract

claim; Plaintiff has shown no causation with respect to these Defendants. Plaintiff’s breach of

contract claims against Defendants Dupre, Horzelski, and Yeargain are DISMISSED WITHOUT

PREJUDICE. Defendant Crain’s Motion to Dismiss is granted with respect to Plaintiff’s breach

of contract claim; the Eleventh Amendment bars this suit against him. Plaintiff’s breach of contract

claim against Defendant Crain is DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Defendant Yeargain’s Motion to Dismiss is granted

with respect to Plaintiff’s defamation claim; Plaintiff has failed to allege facts sufficient to state a

claim for relief. Plaintiff’s defamation claims are DISMISSED WITHOUT PREJUDICE.

Plaintiff is given leave to amend his Complaint as to his breach of contract claims against

Defendants Dupre, Horzelski, and Yeargain and as to his defamation claims against Defendant

Yeargain. Plaintiff is reminded of his obligation to have a good faith basis in law and fact before

amending his petition. See Fed. R. Civ. P. 11. Any amendments are due 28 days from this order.

Failure to amend will result in dismissal of claims with prejudice. Defendants are instructed to

contact the Court if the 28-day period passes and Plaintiff has failed to file any amended complaint.

Given that the Court has allowed Plaintiff the opportunity to amend, IT IS FURTHER

ORDERED that the February 24, 2025, trial date is CONTINUED.

Signed in Baton Rouge, Louisiana, on February 7, 2025.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA