Lori Rayborn v. Bossier Parish School System, et a

Case: 16-30903 Document: 00514333412 Page: 1 Date Filed: 02/02/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 16-30903

Fifth Circuit

FILED

February 2, 2018

LORI RAYBORN, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

BOSSIER PARISH SCHOOL BOARD, erroneously referred to as Bossier

Parish School System; NICHOLE BOURGEOIS, in her personal and official

capacity; GINGER HUGHES, in her personal and official capacity; ACE

AMERICAN INSURANCE COMPANY,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

We decide whether the district court erred when it granted summary

judgment against Appellant Lori Rayborn on her claims of (1) retaliation under

Louisiana state law and the First Amendment, (2) deprivation of her liberty

and reputational interests under the Fourteenth Amendment, and (3)

intentional infliction of emotional distress. We AFFIRM.

FACTS AND PROCEEDINGS

Rayborn worked as a nurse at Parkway High School (“Parkway”) within

the Bossier Parish School System (“BPSS”). Her children attended Parkway,

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and for many years she achieved the highest possible performance reviews for

her service. In 2011, a diabetic student, HDC, committed suicide because of

her classmates’ bullying. As the school nurse, Rayborn had worked closely with

HDC to monitor her diabetes and provide her with medical care. Rayborn

documented fluctuations in HDC’s glucose levels and increased frequency of

hypo/hyperglycemia in the months before the suicide.

Rayborn testified that she recommended to BPSS’s 504 coordinator 1 that

HDC receive special accommodations, but her suggestion was apparently

ignored. Sometime before the suicide, HDC informed Rayborn that she was

uncomfortable receiving a profile in the school’s yearbook as a student with a

disability. Rayborn passed HDC’s concern along to the administration, and

HDC was not required to participate in the yearbook’s plan. HDC later

informed Rayborn that her substitute teacher had forbidden her to monitor her

glucose levels in class. Rayborn brought this to the teacher’s attention and

explained that HDC had a health plan with which the school was legally

obligated to comply. HDC’s teachers received emails from Rayborn, reminding

them of HDC’s health plan and instructing them to print a hard copy of the

plan for substitute teachers. About a week before HDC’s death, Rayborn

treated HDC for high glucose levels. Rayborn took notes of all of her

interactions with HDC.

After her suicide, HDC’s parents sued the Bossier Parish School Board

(“BPSB”). Rayborn’s notes were subpoenaed as part of that action. Bourgeois

and Ginger Hughes, Rayborn’s supervisor, each met individually with Rayborn

to discuss the notes’ contents before responding to the subpoena. Rayborn

1 Section 504 is a part of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 701,

that is intended, in part, to assist disabled students. BPSS has a coordinator who ensures

compliance with section 504 requirements, sometimes by creating health plans for students.

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explained that the school’s failure to put HDC on a 504 plan raised concerns. 2

Rayborn expressed other concerns and safety issues, pointing to a number of

“red flags” with the school’s handling of HDC’s health needs.

By the end of these meetings, Hughes and Bourgeois’s demeanors had

changed. They appeared “alarmed” and “distant and distracted.” Hughes said

Rayborn’s concerns reflected poorly on the school system. Rayborn claims that

these administrators treated her differently after the meetings. Bourgeois gave

Rayborn “cold stares,” avoided conversing with her, and was less talkative

around her. Rayborn overheard Bourgeois mocking her by reading aloud in an

effected tone a work-related email that Rayborn had circulated to the staff.

Rayborn also had problems with a medically-trained secretary, Michelle

Barger. Hughes issued a verbal reprimand to Rayborn for one particularly bad

confrontation with Barger that occurred in front of students and parents, and

Hughes informed Rayborn that she had discussed an involuntary transfer with

Bourgeois. According to Rayborn, Hughes specified that the reprimand was

issued in part because she did not give the administration “wiggle room.”

Hughes further stated that Rayborn’s practice of voicing her concerns was

becoming a problem and that she needed to be a “professional.”

Near the end of a school administration meeting addressing medication

management and documentation and other health-related issues, a question

was posed regarding whom to contact in the event of a medical emergency.

Bourgeois announced that whether a nurse was present or not, any response

to a medical emergency should be referred to 911. Later, a student passed out

in the cafeteria. Nobody informed Rayborn, who was in her office, until after

911 had been called and other medical professionals had arrived on the scene.

2 Bourgeois responded that HDC did not need a 504 plan because “she was stable with

good grades.” Bourgeois also questioned, “what does a nurse have to do with 504.”

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Upset, Rayborn went to Bourgeois’s office and protested her exclusion from the

medical emergency, arguing that her absence jeopardized children’s safety and

lives. Bourgeois said, “[w]e didn’t need you” and reminded her of the meeting

in which she had decided 911 would be called whether the nurse was on

campus or not. Rayborn exited Bourgeois’s office repeating, “unbelievable.” Id.

After that incident, Hughes reprimanded Rayborn again and issued her

a mandatory transfer to another school within the BPSS. Hughes informed

Rayborn that she agreed with Rayborn about student safety, but she could not

condone “insubordinate” conduct. Rayborn’s transfer was effective

immediately and she was not allowed to return to Parkway without an escort.

Rayborn found the transfer unsatisfactory. She was no longer at

Parkway with her children and she had a list of concerns regarding the

facilities at her new school. Rayborn’s pay and benefits, however, remained

unchanged.

Rayborn filed two grievances, but BPSB took no formal action. Rayborn

claims Hughes subsequently issued a false evaluation of Rayborn, accusing her

of excessive absences and failure to complete a proposed wellness program.

Within a few months of the transfer, Rayborn resigned and found work

elsewhere because she “was afraid to go back. They had forced [her] out of [her]

job.”

Rayborn sued BPSB, and its insurance provider, Ace American

Insurance Company, as well as Bourgeois and Hughes in their official and

individual capacities (collectively, “Defendants”). She claimed Defendants

were liable under 42 U.S.C. § 1983 for retaliating against her for expressing

her views about the administration’s inadequacies in handling various medical

emergencies—including the suicide of HDC—in violation of the First

Amendment. She also claimed Defendants impugned her liberty and

reputational interests in violation of the Fourteenth Amendment. Finally, she

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claimed BPSB violated the Louisiana whistleblower law and Defendants’

actions amounted to intentional infliction of emotional distress.

The district court granted summary judgment in favor of Defendants

on all of Rayborn’s claims. She timely appealed.

STANDARD OF REVIEW

We review “a grant of summary judgment de novo, applying the same

standard as the district court.” Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244,

246 (5th Cir. 2003). Summary judgment is appropriate “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). “In deciding

whether a fact issue exists, courts must view the facts and draw reasonable

inferences in the light most favorable to the nonmoving party.” Wilson v.

Tregre, 787 F.3d 322, 325 (5th Cir. 2015). We “may affirm the district court’s

summary judgment on any ground raised below and supported by the record.”

Id. (quoting Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir.

2014)).

DISCUSSION

I. Louisiana Revised Statute § 23:967

Rayborn first challenges the district court’s dismissal of her state-law 3

whistleblower claim under Louisiana Revised Statute § 23:967. 4 Rayborn

3 The district court exercised its discretion to maintain supplemental jurisdiction

pursuant to 28 U.S.C. § 1367 over her state-law claim. See Del-Ray Battery Co. v. Douglas

Battery Co., 635 F.3d 725, 731 (5th Cir. 2011).

4 The statute states:

An employer shall not take reprisal against an employee who in good faith, and

after advising the employer of the violation of law: (1) Discloses or threatens to

disclose a workplace act or practice that is in violation of state law. (2) Provides

information to or testifies before any public body conducting an investigation,

hearing, or inquiry into any violation of law. (3) Objects to or refuses to

participate in an employment act or practice that is in violation of law.

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contends that the district court erred when it used federal jurisprudence

associated with Title VII to analyze her claim under the Louisiana

whistleblower statute. As Rayborn points out, this court has noted that

“§ 23:967 seems to offer broader protections” than Title VII. Schroeder v.

Greater New Orleans Fed. Credit Union, 664 F.3d 1016, 1026 (5th Cir. 2011).

Nonetheless, our precedent, and that of the Louisiana state courts, has

consistently cited to Title VII standards in interpreting § 23:967. See Strong v.

Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 805 n.1 (5th Cir. 2007) (“the

standards governing both claims [under Title VII and § 23:967] are materially

indistinguishable”); Smith v. AT&T Sols., 90 F. App’x 718, 723 (5th Cir. 2004)

(“[w]hile the Louisiana Supreme Court has not spoken directly on whether

[Title VII’s] framework applies to section 23:967 cases, Louisiana courts have

often looked to federal anti-discrimination jurisprudence in interpreting

Louisiana’s anti-discrimination statutes”); Imbornone v. Treasure Chest

Casino, No. 04-2150, 2006 WL 1235979, at *3 (E.D. La. May 3, 2006); Tatum

v. United Parcel Serv., Inc., 79 So. 3d 1094, 1103–04 (La. Ct. App. 2011).

Rayborn provided no Louisiana cases interpreting § 23:967 otherwise.

Accordingly, we apply the standards and requirements of Title VII when

analyzing her retaliation claims under § 23:967.

Applying federal Title VII standards, Rayborn’s claim under § 23:967

fails. An employee “establishes a prima facie case for unlawful retaliation by

proving (1) that she engaged in activity protected by Title VII, (2) that an

La. Stat. Ann. § 23:967(A)(1)–(3) (emphasis added). The statute defines “reprisal” as

firing, layoff, loss of benefits, or any discriminatory action the court finds was

taken as a result of an action by the employee . . . ; however, nothing in this

Section shall prohibit an employer from enforcing an established employment

policy, procedure, or practice or exempt an employee from compliance with

such.

Id. (C)(1) (emphasis added).

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adverse employment action occurred, and (3) that a causal link existed between

the protected activity and the adverse employment action.” Long v. Eastfield

Coll., 88 F.3d 300, 304 (5th Cir. 1996) (citing McMillan v. Rust Coll., Inc., 710

F.2d 1112, 1116 (5th Cir. 1983)). For the purposes of § 23:967, an adverse

employment action “is defined as ‘a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in

benefits.’” Tatum, 79 So. 3d at 1104 (quoting Burlington Indus., Inc. v. Ellerth,

524 U.S. 742, 761 (1998)). 5

Rayborn’s claim fails because she cannot show an adverse employment

action. Rayborn claims that she was transferred and reprimanded because of

her protected activity, and she further argues that she effectively received a

constructive discharge.

This court has said that “a transfer or reassignment can be the

equivalent of a demotion [which is a significant change in employment status],

and thus constitute an adverse employment action.” Thompson v. City of Waco,

764 F.3d 500, 503 (5th Cir. 2014) (citing Alvarado v. Tex. Rangers, 492 F.3d

605, 612–15 (5th Cir. 2007)). “To be the equivalent to a demotion, a transfer

need not result in a decrease in pay, title, or grade; it can be a demotion if the

new position proves objectively worse—such as being less prestigious or less

5 In 2006, the Supreme Court issued Burlington North Santa Fe Railway Co. v. White,

in which the Court rejected limiting Title VII retaliation claims to “ultimate employment

actions,” such as “hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.” 548 U.S. 53, 64-67.

Instead, the Court found that Title VII retaliation “is not limited to discriminatory actions

that affect the terms and conditions of employment.” Id. at 64. Despite being five years after

Burlington, the Tatum court cited a pre-Burlington standard in addressing retaliation under

§ 23:967. See 79 So. 3d 1094, 1104. It is unclear if the Tatum court did so intentionally.

Nonetheless, we have found no Louisiana state case applying the Burlington standard to a

§ 23:967 claim and therefore we follow the Tatum court’s lead in applying a pre-Burlington

standard.

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interesting or providing less room for advancement.” Id. (quoting Alvarado,

492 F.3d at 613 (alterations omitted)). Rayborn’s transfer to another school

within the BPSS is not an adverse employment action. She did not lose any

pay or benefits. There is no evidence that she suffered a loss of responsibilities.

Although her office facilities at the new school were subjectively less desirable,

and she no longer worked at the school her children attended, these differences

do not amount to a demotion. Thus, she did not suffer a significant change in

employment status.

Moreover, the evidence does not support Rayborn’s allegation that BPSB

constructively discharged her. To show constructive discharge in Louisiana, a

plaintiff must show that “the employer intended to and deliberately created

such intolerable working conditions that the employee was forced into

involuntary resignation.” Plummer v. Marriott Corp., 654 So. 2d 843, 849 (La.

Ct. App. 1995), writ denied, 660 So. 2d 460 (La. 1995). The extent of the

intolerable conditions must lead a reasonable person to feel “compelled to

resign.” Id. “The intolerable conduct must be of a greater severity or

pervasiveness than the minimum required to prove a hostile working

environment[.]” Id. Cold stares, rude conduct, and a transfer to a subjectively

less desirable location simply do not meet this high standard, even when

viewing Rayborn’s allegations in the most favorable light.

Finally, Rayborn’s reprimands do not amount to a “significant change in

employment status.” Tatum, 79 So. 3d at 1104 (quoting Ellerth, 524 U.S. at

761). Accordingly, Rayborn has failed to show she was subjected to an adverse

employment action and her claim under § 23:967 fails.

II. First Amendment Retaliation

Rayborn brought claims under 42 U.S.C. § 1983 against BPSB, Hughes,

and Bourgeois in their official and individual capacities, alleging that they

violated Rayborn’s rights to “protest, oppose, and report violations of child

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welfare, neglect of children, and proper care” under the First Amendment. The

district court granted summary judgment against Rayborn on these claims. We

address her arguments in two parts.

A. Claims against BPSB, Hughes, and Bourgeois in their official capacities

“Municipal liability under 42 U.S.C. § 1983 requires proof of 1) a

policymaker; 2) an official policy; 3) and a violation of constitutional rights

whose ‘moving force’ is the policy or custom.” Rivera, 349 F.3d at 247 (citing

Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). “[I]solated

unconstitutional actions by municipal employees will almost never trigger

liability.” Id. (internal quotation marks omitted). The district court granted

summary judgment in BPSB’s favor because it determined Rayborn failed to

identify any official school board policy or custom in accordance with which the

allegedly unconstitutional conduct occurred.

Before us, Rayborn has failed to identify any policy or custom upon which

her transfer was predicated other than to say, “[t]here is no reason to accept”

that the actions “were not part of an unwritten practice or custom” of BPSB.

Rayborn contends “Hughes told [her] the punishment was a joint decision

between [Hughes], Bourgeois, [the] Assistant Superintendent, and others.” But

this does not show anything more than an isolated incident by municipal

employees. The district court did not err in determining that there was no

genuine issue of fact as to an underlying municipal policy.

Further, suits against officials in their official capacities “generally

represent only another way of pleading an action against an entity of which an

officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting

Monell, 436 U.S. at 690 n.55). Thus, Rayborn’s claims against Hughes and

Bourgeois in their official capacities also fail. See id. at 166 (“[An official-

capacity suit] is not a suit against the official personally, for the real party in

interest is the entity.”).

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B. Claims against Hughes and Bourgeois in their individual capacities

The district court determined that Hughes and Bourgeois were entitled

to qualified immunity. “To overcome an official’s qualified immunity defense,

a plaintiff must show that the evidence, viewed in the light most favorable to

him, is sufficient to establish a genuine dispute (1) that the official violated a

statutory or constitutional right, and (2) that the right was clearly established

at the time of the challenged conduct.” Cutler v. Stephen F. Austin State Univ.,

767 F.3d 462, 469 (5th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011) (internal quotation marks omitted)). The district court concluded

that Rayborn could not meet her burden as to the first prong of the test.

“[T]he First Amendment protects a public employee’s right, in certain

circumstances, to speak as a citizen addressing matters of public concern.”

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). To determine whether a public

employee’s speech is entitled to protection, courts undertake a two-step

inquiry. The first step “requires determining whether the employee spoke as a

citizen on a matter of public concern.” Id. at 418. “If the answer is no, the

employee has no First Amendment cause of action based on his or her

employer’s reaction to the speech.” Id. If the answer is yes, then a court must

ask whether the “government entity had an adequate justification for treating

the employee differently from any other member of the general public.” Id. The

Supreme Court explained, however, that “[a] government entity has broader

discretion to restrict speech when it acts in its role as employer, but the

restrictions it imposes must be directed at speech that has some potential to

affect the entity’s operations.” Id.

Rayborn contends that the notes of her encounters with HDC, in which

she detailed the “red flags” that turned Bourgeois and Hughes against her,

were subpoenaed in connection with HDC’s parents’ lawsuit against BPSB and

that under Supreme Court precedent those notes should receive First

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Amendment protection. In Lane v. Franks, the Supreme Court considered

testimony given by an individual pursuant to a subpoena and concluded:

“Truthful testimony under oath by a public employee outside the scope of his

ordinary job duties is speech as a citizen for First Amendment purposes. That

is so even when the testimony relates to his public employment or concerns

information learned during that employment.” 134 S. Ct. 2369, 2378 (2014)

(emphasis added). It was undisputed in Lane that “Lane’s ordinary job

responsibilities did not include testifying in court proceedings.” Id. n.4. In

Garcetti v. Ceballos, however, the Supreme Court held that “when public

employees make statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and the Constitution

does not insulate their communications from employer discipline.” 547 U.S. at

421 (emphasis added).

Rayborn alleges the following speech is constitutionally protected: notes

she made regarding HDC, including her personal observations and

documentation of HDC’s health and status; the submission and explanation of

the notes to her superiors; her conversation with Bourgeois in which she stated

that there were “red flags” regarding HDC; her explanation of the red flags;

her recounting that she had previously warned the assistant principal about

her concerns for the student’s health; and her insistence that HDC should be

on a section 504 plan. Rayborn argues the district court erred when concluding

that her job description and duties as a school nurse required this speech.

The district court correctly concluded that all of Rayborn’s actions that

she claims are protected by the First Amendment, including offering her notes

in accordance with the subpoena requests, were made according to her official

duties. The test is not whether she was required to engage in the speech, but

rather whether she made the speech “pursuant to [her] ‘official

responsibilities’” and whether that speech is “ordinarily within the scope of

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[her] duties.” Lane, 134 S. Ct. at 2379 (quoting Garcetti, 547 U.S. at 424). The

district court observed that Rayborn’s job responsibilities were “maintaining

complete records on all school nurse activities” and these include “assessment

and evaluation of individual student health and behavior patterns; conferences

with teachers and parents; and routine follow-up on reported health concerns

of students.” Rayborn stresses the Supreme Court’s caution about over-

reliance on written job descriptions, Garcetti, 547 U.S. at 424–25, but she fails

to create any genuine issue of material fact as to whether this speech was made

pursuant to her official duties as school nurse.

Rayborn has not shown that Hughes and Bourgeois violated her first

amendment right as an employee “to speak as a citizen addressing matters of

public concern.” Id. at 417. Thus, Hughes and Bourgeois’s qualified immunity

defense prevails, and Rayborn’s § 1983 claim against them fails.

III. Fourteenth Amendment Liberty and Reputational Interests

Rayborn claims that Defendants violated her Fourteenth Amendment

rights to her good name, reputation, and integrity. She argues she was

subjected to a hostile working environment in which Bourgeois openly mocked

her and staff disrespected her. She was reprimanded twice, and, when she was

involuntarily removed from Parkway, she was “paraded and escorted out as if

she were a common criminal.” She could not return to the school her children

attended without an escort. She was denied any opportunity to rebut the

allegations made against her in either of the reprimands she received because

BPSB refused to hold a hearing. As a result, she lost the support of her friends,

her church community, and the respect of former colleagues, and she has put

her house on the market.

“It is now beyond any doubt that discharge from public employment

under circumstances that put the employee’s reputation, honor or integrity at

stake gives rise to a liberty interest under the Fourteenth Amendment to a

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procedural opportunity to clear one’s name.” Rosenstein v. City of Dall., 876

F.2d 392, 395 (5th Cir. 1989) (collecting cases). The district court correctly

noted, however, that “reputation alone [is not] a constitutionally protected

interest.” Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 256 (5th Cir. 1984).

“This court employs a seven-element ‘stigma-plus-infringement’ test to

determine whether § 1983 affords a government employee a remedy for

deprivation of liberty without notice or an opportunity to clear his name.”

Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006). To succeed on

a procedural due process claim under the Fourteenth Amendment, a plaintiff

must show the following:

(1) he was discharged; (2) stigmatizing charges were made against

him in connection with the discharge; (3) the charges were false;

(4) he was not provided notice or an opportunity to be heard prior

to the discharge; (5) the charges were made public; (6) he requested

a hearing to clear his name; and (7) the employer denied the

request.

Id. As discussed above, BPSB never discharged Rayborn. Thus, she

cannot meet the first element of the test, and her claim fails.

IV. Intentional Infliction of Emotional Distress

Finally, Rayborn appeals the district court’s grant of summary judgment

in favor of Defendants on her claim of intentional infliction of emotional

distress. Rayborn argues she was shunned, subjected to two “unfounded”

reprimands, involuntarily transferred away from the school her children

attended, barred from her children’s school, and threatened because “she did

the right thing” when she tendered her notes and statements regarding HDC’s

suicide. As noted by the district court, Rayborn claims to have suffered

fibromyalgia, stress, anxiety, and paranoia, and she has lost interest in

activities she previously found enjoyable as a result of these actions.

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To recover on a claim of intentional infliction of emotional distress in

Louisiana, “a plaintiff must establish (1) that the conduct of the defendant was

extreme and outrageous; (2) that the emotional distress suffered by the

plaintiff was severe; and (3) that the defendant desired to inflict severe

emotional distress or knew that severe emotional distress would be certain or

substantially certain to result from his conduct.” White v. Monsanto Co., 585

So. 2d 1205, 1209 (La. 1991). As the district court correctly noted, “[t]he

distress suffered by the employee must be more than a reasonable person could

be expected to endure.” Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1027 (La.

2000). Indeed, the Supreme Court of Louisiana has indicated that liability only

rests where “the conduct has been so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Id. at 1022

(quoting Restatement (Second) of Torts § 46). We agree with the district court

that Rayborn failed to show any of the Defendants’ conduct was extreme and

outrageous or more than a reasonable person could be expected to endure.

CONCLUSION

For the aforementioned reasons, we AFFIRM the district court on all

issues.

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JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part:

Though I concur in the majority opinion as to most of Rayborn’s claims,

I write separately to explain my disagreement with the majority’s resolution of

Rayborn’s claim under the Louisiana Whistleblower Statute. As the majority

identifies, a transfer that is the equivalent of a demotion constitutes an adverse

employment action for the purposes of this statute. See, e.g., Sharp v. City of

Hous., 164 F.3d 923, 932 (5th Cir. 1999) (discussing plaintiff’s federal

retaliation claim under 42 U.S.C. § 1983); see also Haire v. Bd. of Supervisors

of La. State Univ., 719 F.3d 356, 367 (5th Cir. 2013) (noting that analysis of

reprisal under Louisiana Whistleblower statute mirrors that of retaliation

claims under federal law); Tatum v. United Parcel Serv., Inc., 79 So. 3d 1094,

1104 (La. 2012) (applying Title VII precedent to define what constitutes a

reprisal under Louisiana Whistleblower Statute). The majority also correctly

notes that “[t]o be equivalent to a demotion, a transfer need not result in a

decrease in pay, title, or grade; it can be a demotion if the new position proves

objectively worse—such as being less prestigious or less interesting or

providing less room for advancement.” Sharp, 164 F.3d at 933 (citations

omitted).

Though the majority therefore recites the correct standard for when a

transfer constitutes an adverse employment action, it errs by failing to

consider whether any reasonable jury could find that Rayborn’s transfer

amounted to a demotion, instead inappropriately drawing its own conclusions

from the disputed facts. Whether a transfer amounts to a demotion is a

question of fact to be resolved by a jury—not by a judge on summary judgment.

Id. It is well established that this court, when reviewing a district court’s grant

of summary judgment, does not weigh evidence or decide issues of disputed

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fact. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). Instead, we draw all

reasonable inferences in favor of the non-movant and determine only whether

any reasonable jury presented with that evidence could find in her favor. Id.

It is clear from the record that Rayborn has created a genuine dispute of

fact on this issue. Rayborn provided summary judgment evidence that she was

reassigned as a disciplinary measure to nursing facilities that were unclean,

devoid of safe disposal for used needles, and that lacked the space, equipment,

and privacy to provide adequate medical care to her students. Though she did

not suffer a decrease in pay, she contends that these conditions prevented her

from fully exercising her nursing skills or generally succeeding in her position.

Rayborn’s evidence that her new position was objectively worse than her prior

position is just as strong as that in other cases in which we found that transfers

without reductions in salary were adverse employment actions. See Sharp,

164 F.3d at 926, 928, 933 (jury could conclude that Plaintiff’s transfer was a

demotion in light of evidence that her initial assignment to the horse-mounted

law enforcement unit was more “elite” than her subsequent assignment to a

“less prestigious” teaching post at the Police Academy); Click v. Copeland, 970

F.2d 106, 110 (5th Cir. 1992) (jury could find that intradepartmental transfer

without a reduction in salary was a retaliatory demotion based on evidence

that the new position was “not as interesting or prestigious” and “few people

transferred voluntarily” to the new position); c.f. Mitchell v. Univ. of La. Syst.,

154 F. Supp. 3d 364, 378–80, 404–05 (M.D. La. 2015) (reasonable jury could

find that transfer to a different programmer analyst position within the

university was a demotion based on Plaintiff’s evidence that her new work

environment was dysfunctional and she was required to perform more

secretarial rather than “higher level” tasks, even though she kept the same

pay and Defendant called it a “lateral move”). A reasonable jury, presented

with Rayborn’s evidence that she was transferred as punishment to a new

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Case: 16-30903 Document: 00514333412 Page: 17 Date Filed: 02/02/2018

No. 16-30903

position that was objectively worse due to specific, concrete deficiencies that

interfered with her work could conclude that Rayborn suffered an adverse

employment action.

Accordingly, I would hold that summary judgment on this issue was

improper and would vacate the district court’s dismissal of Rayborn’s claim

under the Louisiana Whistleblower Statute and remand for further

proceedings.

17