Pemella Williams v. the Board of Supervisors, of the Louisiana Community & Technical College Systems

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

18-554

PEMELLA WILLIAMS

VERSUS

THE BOARD OF SUPERVISORS, LOUISIANA

COMMUNITY & TECHNICAL COLLEGE SYSTEMS, ET AL.

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APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT

PARISH OF LAFAYETTE, NO. 20123844

HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

RE BR

VAN H. KYZAR

JUDGE

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Court composed of Billy H. Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.

AFFRIMED IN PART, REVERSED

IN PART, AND REMANDED.

Amanda G. Clark

Mason C. Johnson

Erica Schirling Aguillard

FORRESTER & CLARK, L.L.C.

4981 Bluebonnet Blvd.

Baton Rouge, LA 70809

(225) 928-5400

COUNSEL FOR DEFENDANTS/APPELLANTS:

The Board of Supervisors of the Louisiana Community

and Technical College Systems

Phyllis Dupuis

J. Arthur Smith, III

830 North Street

Baton Rouge, LA 70802

(225) 383-7716

COUNSEL FOR PLAINTIFF/APPELLEE:

Alicia Williams, legal successor to Pemella Williams

KYZAR, Judge.

Defendants, the Board of Supervisors of the Louisiana Community and

Technical College Systems (the Board) and Phyllis Dupuis, appeal the trial court

judgment granting partial summary judgment to Plaintiff, Pemella Williams, '

finding that Defendants violated Ms. Williams’ constitutional right to procedural due

process. Defendants further appeal the trial court’s denial of their motion for

summary judgment, seeking to dismiss all of Plaintiff's claims against them with

prejudice, as well as the trial court’s denial of qualified immunity as to Phyllis

Dupuis. For the following reasons, we affirm the judgment of the trial court in part,

reverse in part, and remand for proceedings consistent herewith.

FACTS AND PROCEDURAL HISTORY

This matter arose as a teacher/tenure claim after Plaintiff, Ms. Williams, was

presented with a termination letter on July 11,2011. Plaintiff began her employment

with Acadiana Technical College (ATC) in 1979. ATC came under the jurisdiction

of the Board on July 1, 1999, with a policy that all employees who were transferred

to the employment of the Board on July 1, 1999 would retain all property interests

and due process interests acquired prior to the transfer of jurisdiction. Phyllis Dupuis

was the Regional Director of ATC at all times relevant herein.

Prior to receiving the July 11, 2011 letter, Plaintiff was the Department Head

of Health Occupations at the Lafayette campus of ATC, as well as acting as a

classroom/clinical nursing instructor. In this role, Plaintiff's job duties included

providing career counseling to students, maintaining program credentials and

licensing requirements, and providing academic advice to program students. In the

' Alicia Williams, the daughter of Pemella Williams, was substituted as party plaintiff after

Pemella Williams passed away on September 27, 2016. All references herein to “Plaintiff” are

meant to refer to Pemella Williams.

fall of 2010, Plaintiff was made aware that the Louisiana State Board of Practical

Nurse Examiners, which is responsible for establishing the minimum requirements

prospective nurses must meet before sitting for the national nursing exam, instituted

a new requirement that graduating students must obtain FBI background clearance

before sitting for the exam. Plaintiff was also made aware that students would be

required to request the FBI clearance at least six months before attempting to sit for

their nursing exam to ensure all background check results would be timely. Despite

this, Plaintiff failed to inform nursing students set to graduate in May 2011 of the

new FBI background check requirements, as required by her duties as Department

Head.

ATC and the Board became aware of Plaintiff's oversight in May 2011, when

Ms. Dupuis began receiving complaints from students who had not been authorized

to sit for the nursing board exams based upon their lack of FBI background clearance.

This caused repercussions for both the graduating nursing students and the

reputation of ATC’s nursing program, as passing nursing boards is a pre-requisite to

employment in the field. Ms. Dupuis and Plaintiff met several times regarding the

incident, the significance of the incident, and any potential legal ramifications, as

many students had threatened legal action. Ms. Dupuis also consulted with the

Board’s legal counsel, Leo Hamilton, the Board’s assistant manager of Human

Resources, Francis Killen, and ATC’s manager of Human Resources, Trevor

Menard.

Following discussions about the incident over the course of May and June of

2011, Plaintiff received a letter on July 11, 2011, referencing her termination, though

advising her that she would be paid wages and benefits through July 29, 2011.

Plaintiff requested instead that she be allowed to retire, which request was granted

less than a week later. At that point, Plaintiff retained an attorney who asserted that

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she had suffered a due process violation. ATC determined that the formal

procedures required for termination of employment did apply and had not been

completed. Thereafter, ATC effectively revoked the July 11, 2011 letter and

prepared to conduct the formal process for termination.

Instead, Plaintiff executed Teacher Retirement System of Louisiana (TRSL)

paperwork on July 20, 2011 certifying that she planned to retire from ATC. She was

continued on administrative leave with pay and full benefits and retained her title as

Department Head until she retired effective August 31, 2011. Before this chosen

retirement date, Plaintiff's attorney sent a letter to ATC demanding reinstatement,

claiming that Plaintiff was not still employed. On August 25, 2011, Plaintiff notified

ATC by letter from her attorney that she would retire on September 1, though she

reserved her right to pursue any civil remedies. Plaintiff then filed the instant suit

after her retirement date, claiming unlawful discharge without due process.

Plaintiff filed a motion for partial summary judgment, requesting a finding

that the actions of Defendants violated her federal and state constitutional rights to

Due Process. Defendants filed a cross motion for summary judgment, seeking the

dismissal of Plaintiffs claims with prejudice. Following arguments on the motions,

the trial court granted Plaintiff's motion for partial summary judgment and denied

Defendants’ cross motion. It is from this judgment that Defendants appeal, asserting

five alleged errors.

ASSIGNMENTS OF ERROR

(1)The trial court committed legal error in finding that plaintiff

suffered a deprivation of Procedural Due Process Rights when she

was never terminated.

(2)The trial [court] committed legal error in failing to recognize

plaintiff's retirement as a knowing and voluntary waiver of her

Procedural Due Process Rights.

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(3) In failing to consider whether plaintiff was afforded constitutionally

sufficient pre-termination process based on the undisputed fact that

the willful neglect forming cause for her termination was discussed

with her informally and was set forth in her termination letter, the

trial court committed legal error.

(4)Denying Defendants’ Summary Judgment seeking dismissal of the

official capacity claim against Phyllis Dupuis was legal error.

(5)The trial court was manifestly erroneous in failing to find Phyllis

Dupuis is entitled to Qualified Immunity.

OPINION

Standard of Review

An appellate court reviews a judgment granting or denying a motion for

summary judgment de novo, using the same criteria which govern a trial court’s

consideration regarding the appropriateness of summary judgment. Menard v. City

of Lafayette, 01-4 (La.App. 3 Cir. 5/23/01), 786 So.2d 354. Summary judgment may

be granted only if the mover has proved, through the pleadings, depositions, answers

to interrogatories, admissions on file, and affidavits, that there remain no genuine

issues of material fact and that the mover is entitled to judgment as a matter of law.

La.Code Civ.P. art. 966. A genuine issue of material fact, for summary judgment

purposes, is one as to which reasonable persons could disagree; if reasonable persons

could reach only one conclusion, there is no need for trial on that issue and summary

judgment is appropriate. Hines v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764.

“Despite the legislative mandate now favoring summary judgments, ‘factual

inferences reasonably drawn from the evidence must be construed in favor of the

party opposing the motion, and all doubt must be resolved in the opponent’s favor.’”

Menard, 786 So.2d at 356 (quoting Willis v. Medders, 00-2507, p. 2 (La. 12/8/00),

775 So.2d 1049, 1050).

Deprivation of Procedural Due Process Rights

Defendants’ first three assignments of error all relate to the trial court’s

finding that Plaintiff's right to procedural due process was violated, and as such, we

will address them together. Plaintiff asserts she was a tenured employee with ATC

during all relevant times. Louisiana law is well settled that teacher tenure law vests

a property right interest in the teacher employee. LaPointe v. Vermilion Par. Sch.

Bd., 15-432 (La. 6/30/15), 173 So.3d 1152. Once these property right interests have

been created, said employees cannot be terminated without due process of law. /d.;

U.S. Const. amend. XIV; La.Const. art. 1, § 2. The Due Process Clause provides

that the substantive rights of life, liberty, and property cannot be deprived except

pursuant to constitutionally adequate procedures. U.S. Const. amend. XIV. “Once

property interests are created, they may not be deprived without adequate legal

process.” LaPointe, 173 So.3d at 1158.

In addition to showing the deprivation of her due process rights, Plaintiff must

also show that the same rights were not waived when she chose to retire. Russell v.

Mosquito Control Bd., 06-346 (La.App. 4 Cir. 9/27/06), 941 So.2d 634. The main

issues at hand are whether Plaintiff's due process rights were violated when she was

allowed to retire but was not given a full termination hearing and whether that

retirement was voluntary.

The requirements of due process vary according to circumstance, as it is, by

nature, an imprecise ideal. Lange v. Orleans Levee Dist., 10-140 (La. 11/30/10), 56

So.3d 925. “The essential requirements of due process ... are notice and an

opportunity to respond. The opportunity to present reasons, either in person or in

writing, why proposed action should not be taken is a fundamental due process

requirement.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct.

1487, 1495 (1985). Therefore, the central questions in this case are whether Plaintiff

was aware of the charges against her, whether she was afforded an adequate

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opportunity to respond to the charges against her, and whether her retirement was

voluntary.

Ms. Dupuis claims to have met and communicated with Plaintiff many times

through May and June 2011 regarding the incident that led to the eventual end of

Plaintiff's employment with ATC. Plaintiff asserts that she discovered her error in

failing to notify her students of the FBI background requirement immediately after

graduation in May. The letter informing Plaintiff of ATC’s decision to terminate

her is signed July 11, 2011. Therefore, Plaintiff had at least thirty days’ notice

regarding the incident and potential repercussions, as is mandatory per ATC’s

removal policy. However, the question remains as to whether Plaintiff had an

opportunity to respond before being deprived of her continued employment.

A pre-termination hearing need not be elaborate. Loudermill, 470 U.S. 532.

“In general, ‘something less’ than a full evidentiary hearing is sufficient prior to

adverse administrative action.” /d. at 545. It has already been noted that the

opportunity to present reasons against why a proposed action should not be taken

can be in writing or verbal. /d.

Plaintiff contends that not only was her termination not warranted, which we

do not address, she further asserts that she was never given an opportunity to give

reasons why she should not be terminated before being presented with her

termination letter on July 11, 2011, which referenced immediate termination.” This

is in direct contradiction to Ms. Dupuis’s claims that she and Plaintiff discussed the

error and potential consequences many times over the preceding two months. As

there are no specific requirements to a pre-termination hearing outside of being

? It is important to note that though the July 11 letter does state that Plaintiff's termination

is effective immediately, it also states that Plaintiff was to continue receiving pay and benefits until

July 29, 2011, thus, effectively continuing her employment through that date.

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provided notice and an opportunity to respond, these requirements were potentially

met in Plaintiff's meetings and discussions with her supervisor, Ms. Dupuis.

Further, Defendants essentially argue that any error regarding the procedures

necessary to satisfy Plaintiff's due process rights when she was originally given her

termination letter on July 11, 2011 was cured by subsequent events. Defendants

assert that while it is possible the July 11, 2011 termination letter did not comport

with due process requirements, this letter was rescinded after ATC was alerted to

this possibility by Plaintiffs attorney. ATC determined that procedures of

termination did apply and was prepared to conduct the formal process for

termination. Plaintiff admits that she was continued on administrative leave with

pay and full benefits as the Department Head for this period and continuing as such

until her selected retirement date. It is well established that “[p]lacement on paid

administrative leave does not constitute deprivation of a property interest,” and as

such, does not implicate due process concerns. Deval! v. Hammond Mun. Fire &

Police Civil Serv. Bd., 14-1381, p. 13 (E.D.La. 12/2/14), 2014 WL 6774249.

Therefore, a question remains as to whether sufficient formal procedures for

termination would have been implemented by ATC before adverse employment

action was taken if Plaintiff had not requested to retire.

Based upon this, Defendants contend that Plaintiff could not have suffered a

Due Process violation as she was never actually terminated. Alternatively, since

Plaintiff requested to be allowed to retire and was granted said request, her

retirement was voluntary, and thus, due process concerns are not implicated.

“Because an employee’s Loudermill rights are designed to protect his property right

in continued employment, the employee relinquishes those rights when he

voluntarily resigns or retires.” Russell, 941 So.2d at 640; see also Abel v. Auglaize

County Highway Dep’t, 276 F.Supp.2d 724, 738 (N.D.Ohio 2003) (finding

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employee’s resignation rendered Loudermill inapplicable). As such, “an employee

has no right to appeal when the employee voluntary [sic] resigns or retires.” Russell,

941 So.2d at 640. It is undisputed that Plaintiff completed the retirement process

and paperwork and received retirement benefits.

Plaintiff argues that if it is found that she did retire, such retirement was not

voluntary. Much like in Russell, 941 So.2d 634, Plaintiff argues that the only options

available to her were either to be terminated or to retire. Defendants claim that

Plaintiff's retirement choice was a voluntary one made for various reasons; the main

one being that by choosing retirement rather than potential termination, Plaintiff

would be allowed to stay on as an employee on administrative leave until the

completion of her Deferred Retirement Option Plan (DROP). Plaintiff had enrolled

in DROP some three years earlier and was scheduled to be fully vested by the Fall

of 2011, which Defendants claim establishes that Plaintiff was already preparing for

retirement before the subject incident. Plaintiff could have chosen to fight her

termination and could have potentially been terminated before being fully vested in

her DROP benefits. As the fourth circuit noted in Russell, 941 So.2d at 641:

In determining whether an employee’s retirement choice was

voluntary, the federal jurisprudence has enumerated the following four

factors for courts to consider: “{1) whether the employee was given

some alternative to resignation; (2) whether the employee understood

the nature of the choice he was given; (3) whether the employee was

given a reasonable time in which to choose; and (4) whether he was

permitted to select the effective date of resignation.”

Although Plaintiff was not initially offered the option of retirement, less than

a week after being presented with her notice of termination, and before any actual

termination or adverse employment action had been effectuated, Plaintiff was indeed

offered the option of being allowed to retire. Plaintiff argues that the choice between

retirement and termination did not offer viable alternatives to retirement, making it

forced; however, the federal jurisprudence has repeatedly rejected this argument and

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upheld resignations that were made in order to avoid threatened termination. /d.;

Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584 (1975). In Christie, the court

rejected the employee’s argument that she was essentially forced to resign, reasoning

“Ts]he could stand pat and fight. She chose not to. Merely because plaintiff was

faced with an inherently unpleasant situation in that her choice was arguably limited

to two unpleasant alternatives does not obviate the voluntariness of her resignation.”

Christie, 518 F.2d at 587. Similarly, Plaintiff here could have chosen to fight her

termination for cause.

The second prong of this test is whether Plaintiff understood the nature of the

choice she was given. After Plaintiff was given notice that her request to retire

would be granted, she retained counsel who asserted that she had suffered a due

process violation. Defendants claim that it was after receiving this notice from

Plaintiff's counsel that ATC revoked the July 11 termination letter and began

preparing for the formal termination process. After this occurred, Plaintiff executed

the necessary paperwork certifying that she planned to retire from ATC effective

August 31, 2011. Plaintiff again notified ATC, by letter from her attorney dated

August 25, 2011, that she would be retiring. Plaintiff retained counsel before her

retirement was finalized and while she was still on administrative leave, before a

hearing as to any actual adverse employment action had been taken.

The third and fourth factors for consideration are whether Plaintiff was given

a reasonable time in which to make her decision to retire and select her date of

retirement. The jurisprudence does not specifically state what such a reasonable

time period is, and therefore, the issue must be considered on a case by case basis.

While the July 11 letter references immediate termination, it also states that Plaintiff

would continue to receive pay and benefits until July 29, 2011, thus delaying

termination until then. However, Plaintiff was not informed that her request to retire

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was granted, thus making retirement a viable option, until the week after July 11,

2011. While we note that in Russell, 941 So.2d 634, the fourth circuit found two

days to be sufficient time in which to allow Mr. Russell to make his decision, we

find this to be a question that should be answered by the factfinder.

The final prong questions whether Plaintiff was permitted to select the

effective date of her retirement. It is undisputed that, once retirement was certain,

Plaintiff was able to select a date of her choosing and was continued on paid

administrative leave until said date arrived.

In light of the above, we find that there remain questions of fact in the current

case. Whether Plaintiff was given or would have been given an opportunity to

respond adequately to the allegations against her such as to satisfy due process

requirements had she not retired is clearly a contested, material fact, especially given

Ms. Dupuis’ affidavit stating that ATC was fully prepared to conduct formal

termination proceedings, including a hearing, if Plaintiff chose not to retire.

Whether Plaintiff's retirement was voluntary or forced based upon considerations

such as whether she was genuinely given a choice, as she had to request the option

to retire, is yet another material fact. Whether the period from July 11 to July 29

was a reasonable period in this case for Plaintiff to make the decision to retire and

whether she understood her legal options at the time are unanswered questions of

fact making summary judgment inappropriate. Making findings of fact requires a

weighing of the evidence by the trier of fact, which is impermissible at the summary

judgment stage of any legal proceeding. Tepper v. Red River Acad., L.L.C., 14-1028

(La.App. 3 Cir. 2/4/15), 157 So.3d 1142. In ruling on summary judgments, “factual

inferences reasonably drawn from the evidence must be construed in favor of the

party opposing the motion, and all doubt must be resolved in the opponent’s favor.”

Menard, 786 So.2d at 356.

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The trial court granted Plaintiff's motion for summary judgment and denied

Defendants’ motion for summary judgment, finding that Plaintiff's due process

rights had been violated. Summary judgment may only be granted if there remain

no genuine issues of material fact. La.Code Civ.P. art. 966. A material fact for the

purpose of summary judgment is one that would matter at a trial on the merits.

Johnson v. Concordia Bank & Trust Co., 95-1187 (La.App. 3 Cir. 3/27/96), 671

So.2d 1093. Given the disputed evidence and the complexity of the questions, we

find that the issue of liability was not suitable for summary judgment, as such

questions are best left for decision following a trial on the merits. As such, we affirm

the judgment of the trial court denying Defendants’ motion for summary judgment,

reverse the trial court’s judgment granting Plaintiff's motion for summary judgment,

and remand this issue back to the trial court for trial on the merits.

Qualified Immunity

Defendants’ fourth and fifth assignments of error assert that the trial court

erred in failing to find that Ms. Dupuis is entitled to qualified immunity and for

failing to grant their motion for summary judgment on said immunity. Qualified

immunity protects an individual state official from liability for money damages

where the defendant acts within the course of his or her official capacity in a manner

that is objectively reasonable and in good faith, even if the conduct or action, in and

of itself, violates a plaintiff's constitutional rights. Richard v. Bd. of Sup’rs of La.

State Univ. & A & M Coll., 06-927 (La.App. 1 Cir. 3/28/07), 960 So.2d 953.

“Whether an official protected by qualified immunity may be held personally liable

for allegedly unlawful official actions generally turns on the objective legal

reasonableness of the action, assessed in light of the legal rules that were clearly

established at the time the action was taken.” Christian v. Fontenot, 28,175, pp. 13-

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14 (La.App. 2 Cir. 4/8/96), 672 So.2d 436, 445, writ denied, 96-1385 (La. 9/13/96),

679 So.2d 105 (citing Harlow v. Fitzgerald, 457 U.S. 800, 102 $.Ct. 2727 (1982)).

In Moresi v. Dep’t of Wildlife and Fisheries, 567 So.2d 1081 (La.1990), the

Louisiana Supreme Court, in interpreting Harlow, 457 U.S. 800, developed a two-

part test to determine if a particular official was entitled to qualified immunity. “First,

the court must determine whether the law was clearly established at the time the

action occurred. Second, if the law is clearly established, the defendant must show

that, because of extraordinary circumstances, he neither knew nor should have

known of the relevant standards.” Christian, 672 So.2d at 446. This test generally

turns on the “objective reasonableness of the action[.]” 7x. Faculty Ass'n v. Univ.

of Tx. at Dallas, 946 F.2d 379, 389 (5th Cir.1991).

We have declined to determine whether Plaintiff's rights were clearly violated

at this stage of the proceedings. However, we find that such an answer is rendered

unnecessary for our current discussion of whether Ms. Dupuis is entitled to qualified

immunity based upon the second prong of the test iterated by the supreme court in

Moresi, 567 So.2d 1081. Plaintiff argues that Ms. Dupuis’ actions were not

objectively reasonable given the relevant jurisprudence regarding procedural due

process rights of tenured faculty members. Plaintiff specifically states in brief that

Ms. Dupuis could “have easily known, if she had bothered to ask any of the lawyers

for the State.” However, this argument appears in direct contradiction to Ms. Dupuis’

affidavit testimony. Ms. Dupuis testified that she conducted a pre-termination

investigation by consulting with the Board’s attorney, the Assistant Human

Resources Manager in the Systems office for the Board, and ATC Human Resources

manager regarding what to do about the situation with Plaintiff and going so far as

to get approval for the July 11, 2011 termination letter before presenting it to Plaintiff.

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At the relevant time for the instant case, Ms. Dupuis had only been in her

position as the appointing authority for a short while and had not yet been involved

in the termination of a permanent employee. She, therefore, sought the advice of

counsel and human resources to determine the correct course of action; all of whom

agreed that the appropriate sanction would be to notify Plaintiff of their intention to

terminate Plaintiff's employment. Given this information, a reasonable officer could

not have clearly known that her actions were unlawful. Nor could her actions be

considered plainly incompetent. Instead, Ms. Dupuis took precautionary measures

to ensure that the best course of action was taken, and under the circumstances, we

find that the decision to provide written notice of termination to Plaintiff was not

“objectively unreasonable” based upon the information provided to Ms. Dupuis

during her pre-termination investigation. See Richard, 960 So.2d 953.

Accordingly, we find that Ms. Dupuis is entitled to qualified immunity for her

role in Plaintiff's end of employment decisions with ATC and reverse the trial

court’s denial of summary judgment on this issue.

DISPOSITION

Based upon the foregoing, we affirm the trial court’s denial of summary

judgment on the issue of liability to Defendants, the Board of Supervisors of the

Louisiana Community and Technical College Systems and Phyllis Dupuis. We

further reverse the trial court’s grant of summary judgment to Plaintiff, Pemella

Williams, that her constitutional right to procedural due process had been viclated,

finding that this issue is not ripe for summary judgment and remanding to the trial

court for a full trial on the merits. We further reverse the trial court’s denial of

summary judgment on the issue of qualified immunity in regards to Defendant,

Phyllis Dupuis, finding her entitled to qualified immunity in this instance. Costs of

this appeal are assessed equally to both parties.

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AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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