Sanders v. Dillard University
Filing
32
ORDER & REASONS: ORDERED that Defendant's Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Rec. Doc. 23 ) is GRANTED IN PART. FURTHER ORDERED that the motion is GRANTED with respect to Plaintiff's T itle VII discrimination, Equal Pay Act, intentional infliction of emotional distress, defamation, constitutional, and negligence claims. FURTHER ORDERED that the motion is DENIED with respect to Plaintiff's Title VII retaliation claim. FURTHER ORDERED that the motion is DENIED inasmuch as it seeks to dismiss claims under the ADA or ADEA that Plaintiff has not alleged. Signed by Judge Carl Barbier on 12/23/14. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SANDERS
CIVIL ACTION
VERSUS
NO: 14-845
DILLARD UNIVERSITY
SECTION: “J” (3)
ORDER & REASONS
Before the Court is Defendant Dillard University’s Motion
to Dismiss Dessie Sanders’ Complaint Pursuant to Federal Rules
of
Civil
Procedure
12(b)(1)
and
12(b)(6)
(Rec.
Doc.
23),
Plaintiff Dessie Sanders’ opposition thereto (Rec. Doc. 28), and
Defendant’s reply. (Rec. Doc. 31) Having considered the motions
and memoranda, the record, and the applicable law, the Court
finds that Defendant’s motion should be GRANTED IN PART for the
reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This action arises from Defendant’s decision not to renew
Plaintiff’s
appointment
as
an
Adjunct
Professor
of
English.
(Rec. Doc. 23-1, p. 1) On September 5, 2013, Defendant, a “fully
accredited, private, historically black, non-profit University,”
appointed Plaintiff as an Adjunct Professor of English for the
Fall 2013 semester, which appointment expired on December 16,
2013. Id. Defendant states that its adjunct instructors do not
enjoy
any
form
semester.” Id.
of
contractual
security
beyond
the
“current”
At
some
point
during
the
Fall
2013
semester,
Plaintiff
alleges that the Coordinator of the English Department, Dr. Mona
Lisa
Saloy,
attempted
to
engage
Plaintiff
in
a
scheme
to
“constructively terminate” two white female professors in her
department. (Rec. Doc. 1, p. 1) According to Plaintiff,
[Dr. Saloy’s] position was that the two professors
should
not
be
teaching
English
and
literature
(specifically African American literature) to Dillard
University students, because both professors are
white, and Dillard University is [a historically black
university].
[Dr. Saloy’s]
claim
was
that
both
professors did not get along with her, in addition to
being “mean and less nurturing towards the students,
because they are Black, and that the university needs
more professors such as [Plaintiff]: “of color,” to
help teach and nurture Dillard students, because “[the
two white professors] do not understand the Black
experience.”
Id. When Plaintiff refused to assist Dr. Saloy in her scheme,
Plaintiff
alleges
that
Dr.
Saloy
“attacked
and
retaliated
against [her].” Id.
Plaintiff
makes
numerous
other
allegations
against
Dr.
Saloy. First, Plaintiff alleges that “Dr. Saloy intentionally
tried to rally various female students against [Plaintiff], by
claiming
that
[she]
was
neglecting
their
academic
needs
[on
November 14-19, 2013].” (Rec. Doc. 9, p. 1) However, Plaintiff’s
doctor had excused her from work during that week. (Rec. Doc. 1,
p.
10)
Second,
Plaintiff
alleges
that
Dr.
Saloy
called
Plaintiff’s landlord during that week and stated that Plaintiff
“better watch it, because several female students do not like
2
[Plaintiff] and that [Plaintiff] did not want to mess with her.”
(Rec. Doc. 28, pp. 2-3) Third, Plaintiff alleges that Dr. Saloy
attempted to have Plaintiff removed from the schedule for the
Spring semester on or before November 20, 2013. Id. at 3. And by
January 8, 2014, Dr. Saloy had recommended revoking Plaintiff’s
contract for the Spring. Id. Lastly, Plaintiff seems to allege
that because of Dr. Saloy, Plaintiff’s fibroid tumors caused her
extreme pain, and the English Department discovered Plaintiff’s
medical condition. Id.
Plaintiff alleges that Defendant was aware of Dr. Saloy’s
behavior during the Fall 2013 semester. (Rec. Doc. 28, p. 2)
Plaintiff states that she met with Corthel Clark, Chair of Arts
& Humanities; Robert Collins, Dean of Arts & Humanities; Yolanda
Page,
Vice
President
of
Academic
Affairs;
Abdel
Darwish,
Assistant Vice President of Academic Affairs; and Randy Dukes,
Attorney and Human Resources Director. 1 See id. During these
meetings
or
conferences,
she
informed
them
that
“Dr.
Saloy
stated that if I agreed to help[] her constructively terminate
[a white professor] the exchange would be the full-time position
as English faculty.” Id.
1
Plaintiff, however, was unable to discuss her complaints against Dr.
Saloy with Dr. Page individually. (Rec. Doc. 28, p. 1) Plaintiff alleges that
Dr. Page refused to see her, and that Dr. Page’s assistant referred her to
Dr. Darwish. Id. at 2. Dr. Darwish instructed Plaintiff to document her
complaints and to go see the Director of Human Resources, Randy Dukes. Id.
Dr. Darwish further instructed her to “file with the EEOC.” Id.
3
Plaintiff alleges that Defendant permitted her contract to
expire despite promising that she could return for the Spring
2014
semester.
Specifically,
“[Plaintiff]
was
promised
throughout the [Fall 2013] semester by Dr. Robert Collins, Dean
of
Arts
&
Humanities,
Corthel
Clark,
Chair,
and
Dr.
Abdel
Darwish, Associate VP of Academic Affairs that [her] job as an
Adjunct Professor would not be jeopardized by Dr. Saloy’s unjust
actions, and that [she] would be returning for the 2014 Spring
semester.”
that,
(Rec.
following
Doc.
Dr.
9,
pp.
Saloy’s
1-2)
Plaintiff
November
20th
further
attempt
to
alleges
remove
Plaintiff from the calendar, Corthel Clark “assured [her] that
they would take care of Dr. Saloy and that [Plaintiff] would be
returning for the spring 2014 semester.” (Rec. Doc. 28, p. 3)
Plaintiff filed a Charge of Discrimination dated February
15, 2014, with the U.S. Equal Employment Opportunity Commission
(EEOC)
and
the
Louisiana
Commission
on
Human
Rights.
In
the
complaint, Plaintiff indicated that she was retaliated against
based on her color and further alleged as follows:
My employment as an Adjunct Professor, English began
on September 9, 2013. My immediate supervisor was
Corthel Clark, Chair of Humanities. Throughout the
semester I was harassed by Dr. Mona Lisa Saloy (B),
Coordinator of English. Dillard University employs
more than 15 persons.
I believe I was harassed and retaliated against
because of my dark skin color in violation of Title
VII of The Civil Rights Act of 1964, as amended.
4
In
response,
she
received
a
Notice
of
Right
to
Sue
dated
February 25, 2014, permitting her to file suit under “Title VII
of the Civil Rights Act of 1964, the Americans with Disabilities
Act
(ADA),
or
the
Genetic
Information
Nondiscrimination
Act
(GINA)” within ninety days of receipt of the letter. (Rec. Doc.
1, p. 2)
Plaintiff filed suit in this Court on April 14, 2014. (Rec.
Doc.
1)
In
her
complaint,
she
explains
that
Defendant
discriminated against her on the basis of color and retaliated
against
her
scheme
to
after
she
terminate
refused
two
to
white
assist
Dr.
professors
Saloy
in
the
with
her
English
Department. Id. at 1. She also asserts that Dr. Saloy’s behavior
resulted in a “den[ial of her] right to take a medical leave of
absence on October 15, 2013,” equated to the “intentional intent
to cause emotional distress,” caused her wrongful termination,
and
violated
the
Equal
Pay
Act.
Id.
Plaintiff
amended
her
complaint on May 5, 2014, adding claims for discrimination and
retaliation under Title VII of the Civil Rights Act of 1964,
defamation,
Due
negligence,
intentional
negligent
Process
infliction
of
and
Equal
infliction
emotional
Protection
of
violations,
emotional
distress,
and
distress,
punitive
damages. (Rec. Doc. 9)
On November 4, 2014, Defendant filed the instant Motion to
Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1)
5
and 12(b)(6). (Rec. Doc. 23) Plaintiff opposed the motion on
December 8, 2014. (Rec. Doc. 28) Defendant replied on December
10, 2014. (Rec. Doc. 29)
LEGAL STANDARD
A. 12(b)(1) Motion to Dismiss
In deciding a motion to dismiss for lack of subject matter
jurisdiction
under
Federal
Rule
of
Civil
Procedure
12(b)(1),
“the district court is ‘free to weigh the evidence and resolve
factual disputes in order to satisfy itself that it has the
power to hear the case.’” Krim v. pcOrder.com, Inc., 402 F.3d
489, 494 (5th Cir. 2005). The party asserting jurisdiction must
carry the burden of proof for a Rule 12(b)(1) motion to dismiss.
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762
(5th Cir. 2011). The standard of review for a motion to dismiss
under Rule 12(b)(1) is the same as that for a motion to dismiss
pursuant
to
Rule
12(b)(6).
United
States
v.
City
of
New
Orleans, No. 02-3618, 2003 WL 22208578, at *1 (E.D. La. Sept.
19, 2003).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference
6
that the defendant is liable for the misconduct alleged.” Id. A
court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not,
however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
B. 12(b)(6) Motion to Dismiss
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo,
544
U.S.
336,
346
(2005).
The
allegations
“must
be
simple, concise, and direct.” FED. R. CIV. P. 8(d)(1).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. A
court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. Lormand v.
7
U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not,
however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678. Although pro se
plaintiffs
are
represented
held
by
to
less
lawyers,
stringent
standards
those
allegations
“conclusory
than
or
legal
conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002).
PARTIES’ ARGUMENTS & DISCUSSION
A. 12(b)(1) Motion to Dismiss
Defendant
argues
that
this
Court
lacks
subject
matter
jurisdiction over Plaintiff’s discrimination claims based on age
or
disability
administrative
because
remedies
Plaintiff
under
the
failed
Americans
to
exhaust
with
her
Disabilities
Act (ADA) or the Age Discrimination in Employment Act (ADEA)
before filing her lawsuit. (Rec. Doc. 23-1, pp. 4-5) Plaintiff’s
opposition does not address this argument.
After reviewing Plaintiff’s complaints and opposition, it
does not appear to the Court that Plaintiff has even asserted
claims
under
Plaintiff
the
filed
ADA
or
another
the
ADEA.
Charge
of
Defendant
explains
Discrimination
that
against
Defendant on June 24, 2014, in which she asserts claims under
both of these acts. Id. at 3. Defendant further states that the
8
EEOC
dismissed
Plaintiff’s
charge
because
it
was
“unable
to
conclude that the information obtained establishes violations of
the [civil rights] statutes.” Id. Neither the charge nor the
EEOC’s decision, however, is in the record. The Court finds it
unnecessary to dismiss claims that Plaintiff herself has not
asserted
before
the
Court.
The
Court
therefore
denies
Defendant’s motion to dismiss for lack of jurisdiction.
B. 12(b)(6) Motion to Dismiss
Defendant argues that Plaintiff fails to state a claim upon
which relief can be granted, and therefore, the Court should
dismiss
Plaintiff’s
complaint.
Id.
at
5-15.
The
Court
will
address each of Plaintiff’s claims individually.
1. Title VII Discrimination
Defendant asserts that Plaintiff fails to state a claim
under Title VII or the Equal Pay Act because (1) she “alleges no
facts” in support of the claims, (2) she fails to allege that
she either opposed an unlawful practice or participated in a
proceeding under Title VII in support of her retaliation claim,
and (3) the alleged discrimination was not the but-for cause of
her termination. Id. at 7. Plaintiff generally reasserts her
Title VII claims in her opposition without directly addressing
these arguments. She does not mention the Equal Pay Act in her
opposition.
a. Sufficiency of Plaintiff’s Factual Allegations
9
The Court first addresses whether Plaintiff pleaded facts
in
support
retaliation
of
her
and
Title
her
Equal
VII
claims
Pay
Act
of
discrimination
claim.
In
arguing
and
that
Plaintiff has not alleged sufficient facts in support of these
claims, Defendant relies upon Brittain v. Trane A. Standard, 58
F. App’x 596 (5th Cir. 2003). The Court, however, finds this
case to be distinguishable with respect to Plaintiff’s Title VII
retaliation claim. In Brittain, the plaintiff included in her
EEOC charge only that she was “terminated . . . due to [her]
disability” and that she had “been discriminated against because
of disability in violation of the American with Disabilities Act
of
1990.”
Id.
at
*1.
Her
complaint
provided
little
clarification. In it, she alleged violations of multiple laws in
an indecipherable jumble. See id. After the Court granted her an
opportunity to clarify her complaint, she again failed to allege
any facts in support of her claim. Id. at *1-2. Here, although
Plaintiff’s
Charge
of
Discrimination
includes
little
factual
detail, Plaintiff did check the box for “retaliation,” and her
complaints provide factual support for this claim. For example,
Plaintiff alleges that Defendant retaliated against her after
she refused to engage in Dr. Saloy’s plan to terminate two other
professors based on their color. The Court generally finds that
Plaintiff
has
pleaded
facts
in
retaliation claim.
10
support
of
her
Title
VII
The Court agrees, however, that Plaintiff has failed to
allege any facts whatsoever to support her claims for Title VII
discrimination
or
violations
of
the
Equal
Pay
Act.
First,
although Plaintiff includes conclusory statements in her Charge
of
Discrimination
and
complaints
alleging
that
Defendant
discriminated against her based on her color, she provides no
factual basis for such a claim. The allegations underlying her
retaliation
claim
do
not
reveal
that
Defendant
discriminated
against Plaintiff based on her race. Second, Plaintiff merely
states that her Notice of Right to Sue from the EEOC permits her
to sue under the Equal Pay Act. (Rec. Doc. 1, p. 1) She states
nothing further with regard to the Act or pay disparity. Thus,
the Court finds that Plaintiff has failed to state a claim for
Title VII discrimination or violations of the Equal Pay Act.
b. Elements of a Title VII Retaliation Claim
Defendant argues that Plaintiff fails to state a claim for
retaliation under Title VII because she has not alleged that she
opposed
an
unlawful
practice
or
participated
in
a
Title
VII
proceeding and she cannot show causation. “Where a plaintiff
alleges
unlawful
retaliation
in
violation
of
Title
VII,
the
court employs the burden-shifting analysis [of McDonnell Douglas
Corp.
v.
Green,
411
U.S.
Somervell
Cnty.,
Tex.,
431
792,
Fed.
802-04
Appx.
(1973).]”
338,
Thompson
340-41
(5th
v.
Cir.
2011). “Under the McDonnell Douglas framework, an employee must
11
first establish a prima facie case of retaliation.” Id. at 340
n.1. In order to state a claim for retaliation, a plaintiff must
allege (1) she was engaged in protected activity, (2) she was
subjected to an adverse employment action, and (3) there was a
causal connection between the protected activity and the adverse
employment action. Hernandez v. Yellow Transp., Inc., 641 F.3d
118, 129 (5th Cir. 2011).
First,
engaged
in
Plaintiff’s
a
complaint
protected
reveals
activity.
The
that
Plaintiff
Court
was
interprets
Plaintiff’s charge and complaint as alleging that her opposition
to Defendant’s unlawful practice—Dr. Saloy’s plan to terminate
two professors based on their color—led to her termination. 2 This
opposition constitutes a protected activity; Title VII prohibits
an employer from retaliating against an employee because she has
either
“participated
in
any
manner
in
an
investigation,
proceeding, or hearing” under Title VII or “opposed any practice
made ... unlawful ... by this subchapter.” 42 U.S.C. § 2000e–
3(a). “The term ‘oppose,’ being left undefined by the statute,
carries its ordinary meaning, Perrin v. United States, 444 U.S.
37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979): ‘to resist or
antagonize
...;
to
contend
against;
2
to
confront;
resist;
Plaintiff also suggests in her complaint that “[she] was released from [her]
contract because the university had received letter from the EEOC prior to
Jan. 8th, 2014.” (Rec. Doc. 1, p. 6) The Court does not focus on this remark
because it is not clear to the Court that Plaintiff notified the EEOC
regarding the alleged discrimination before February 2014.
12
withstand,’
Webster's
New
International
Dictionary
1710
(2d
ed.1958).” Crawford v. Metropolitan Government of Nashville and
Davidson
Cnty.,
Tenn.,
555
U.S.
271,
276
(2009).
“‘When
an
employee communicates to her employer a belief that the employer
has engaged in . . . a form of employment discrimination, that
communication’
virtually
always
‘constitutes
the
employee’s
opposition to the activity.’” Id. Here, Plaintiff states that
she
complained
of
Dr.
Saloy’s
behavior
to
several
of
her
superiors at Dillard, including the Director of Human Resources. 3
(Rec. Doc. 28, pp. 1-3) Accepting these allegations as true, the
Court
cannot
say
that
Plaintiff
failed
to
allege
that
she
opposed Defendant’s action.
Second, it is clear that Plaintiff has alleged an adverse
employment
action.
Defendant
does
not
dispute
Plaintiff’s
allegation that her employment terminated after the Fall 2013
semester. Nor does Defendant argue that termination does not
constitute an adverse employment action. Thus, the Court finds
that Plaintiff has satisfied the second requirement for stating
a prima facie case. See, e.g., Anderson v. City of Dallas, 116
3
Because Plaintiff is pro se, the Court considers the additional factual
allegations in Plaintiff’s opposition. Even in Plaintiff’s complaint,
however, there is a notation to support her claim that she opposed Dr.
Saloy’s discriminatory conduct. Plaintiff notes that Randy Dukes, the
Director of Human Resources, “refused to listen” to her concerns as early as
November 20, 2014. (Rec. Doc. 1, p. 7) This suggests to the Court that
Plaintiff is alleging that she shared her concerns with Mr. Dukes, but that
he did not take them seriously or move to address them.
13
Fed.
Appx.
19,
27-28
(5th
Cir.
2004)(noting
that
adverse
employment actions include being fired or discharged).
Finally,
Plaintiff
between
the
protected
action.
Plaintiff’s
concerns
regarding
must
allege
activity
complaint
Dr.
and
a
causal
the
suggests
Saloy’s
relationship
adverse
that
behavior
she
employment
with
raised
Mr.
Dukes
her
on
November 20, 2013. (Rec. Doc. 1, p. 7) She further alleges that
she was released as a result of her opposition to Dr. Saloy’s
plan. Id. at 1. Plaintiff’s opposition states that Dr. Saloy
attempted to remove Plaintiff from the Spring 2014 schedule on
November
20,
2013,
the
same
day
she
allegedly
raised
her
concerns with Mr. Dukes. 4 (Rec. Doc. 29, p. 3) “Close timing
between an employee's protected activity and an adverse action
against [her] may provide the ‘causal connection’ required to
make out a prima facie case of retaliation.” Swanson v. Gen.
Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). Here, the
Court
finds
that
Plaintiff
has
shown
a
causal
connection
sufficient to make a prima facie case by alleging their close
timing.
Although
Defendant
provides
multiple
reasons
for
Plaintiff’s termination, 5 the Court cannot say that Plaintiff has
failed to make out a prima facie case and, therefore, to state a
4
Plaintiff’s opposition, however, seems to state that she met with Mr. Dukes
on November 21, 2013. (Rec. Doc. 28, p. 2)
5
Such reasons include an allegedly unexplained absence in November, the use
of improper class materials, the University’s decision to cut back on adjunct
faculty more generally, etc.
14
claim. Defendant’s arguments would more properly be advanced in
a motion for summary judgment. 6
2. Intentional Infliction of Emotional Distress
Defendant argues that Plaintiff fails to state a claim for
intentional infliction of emotional distress (IIED) because she
does not allege facts in support of all of the elements of an
IIED claim. (Rec. Doc. 23-1, pp. 10-11) Defendant asserts that
workplace disputes rarely give rise to an IIED claim. Id. at 11.
Plaintiff does not address these arguments in her opposition.
Instead, she adds that Dr. Saloy called Plaintiff’s landlord and
threatened
Plaintiff.
She
also
adds
that
“[Dr.
Saloy’s]
misconduct and unethical behaviors caused [her] to experience
severe pelvic pain, emotional distress, headaches, and bleeding
for two weeks.” (Rec. Doc. 28, p. 3) She explains that she
suffered two episodes of severe pelvic bleeding during the Fall
2013 semester. Id. Plaintiff alleges that her doctor told her
that she needed to “do something about . . . Dr. Saloy, as the
stressor.” Id.
Louisiana law recognizes the tort of intentional infliction
of emotional distress. See White v. Monsanto Co., 585 So. 2d
1205,
1208-09
infliction
of
(La.
1991).
emotional
To
state
distress,
6
a
a
claim
plaintiff
for
intentional
must
establish
Because this federal law claim remains, the Court will not address
Defendant’s argument that the Court should decline to exercise supplemental
jurisdiction if only Plaintiff’s state law claims remain.
15
“(1)
that
the
outrageous;
plaintiff
conduct
(2)
that
was
severe;
of
the
the
defendant
emotional
and
(3)
that
was
distress
the
extreme
suffered
defendant
by
and
the
desired
to
inflict severe emotional distress or knew that severe emotional
distress would be certain or substantially certain to result
from
his
conduct.”
Id.
at
1209.
“Activity
in
the
Louisiana
workplace environment can give rise to a cause of action for
intentional infliction of emotional distress, but ‘this state's
jurisprudence has limited the cause of action to cases which
involve
a
pattern
of
deliberate,
repeated
harassment
over
a
period of time.’” King v. Bryant, 2001-1379, pp. 3-4 (La. App. 3
Cir. 7/10/02); 822 So. 2d 214, 217.
The Louisiana Supreme Court described the type of conduct
that
could
give
rise
to
a
meritorious
claim
of
intentional
infliction of emotional distress in White v. Monsanto Co.
The conduct must be so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious and
utterly
intolerable
in
a
civilized
community.
Liability
does
not
extend
to
mere
insults,
indignities, threats, annoyances, petty oppressions,
or other trivialities. Persons must necessarily be
expected to be hardened to a certain amount of rough
language, and to occasional acts that are definitely
inconsiderate and unkind. Not every verbal encounter
may be converted into a tort; on the contrary, “some
safety valve must be left through which irascible
tempers may blow off relatively harmless steam.”
585 So. 2d at 1209 (quoting RESTATEMENT (SECOND)
(1965)).
16
OF
TORTS § 46 cmt. d
Here, Plaintiff’s pleadings and opposition include little
factual detail relating to Dr. Saloy’s actions. Instead, they
often
focus
on
the
alleged
effects
of
those
actions.
Her
original complaint merely states that Dr. Saloy “harass[ed] and
retaliate[ed]” against her, and that her behavior resulted in
“intentional intent to cause emotional distress, which greatly
affected
my
health.”
(Rec.
Doc.
1,
p.
1)
Additionally,
Plaintiff’s complaint includes a medical bill from a March 9,
2014, hospital visit in Dallas for uterine fibroids and chronic
pelvic pain. Id. at 24. On it, she includes handwritten notes
alleging that the visit was the result of her landlord evicting
her, which she alleges occurred after Dr. Saloy contacted her
landlord to tell him that Defendant would not employ Plaintiff
after the Fall 2013 semester. Id. She reasserts the claim in her
amended complaint, but does not provide any additional details.
(Rec. Doc. 9, p. 1) Her opposition again includes information on
the effects of Dr. Saloy’s alleged conduct, as summarized above.
(Rec. Doc. 28, p. 3) Plaintiff does, however, add that Dr. Saloy
called Plaintiff’s landlord and stated that Plaintiff “better
watch
it,
because
several
female
students
do
not
like
[Plaintiff] and that [Plaintiff] did not want to mess with her.”
Id. at 3. Considering the allegations of Dr. Saloy’s alleged
conduct,
beyond
however,
“insults,
the
Court
concludes
indignities,
17
that
threats,
it
does
not
annoyances,
rise
petty
oppressions, or other trivialities.” See White, 585 So. 2d at
1209. The Court finds that Plaintiff has failed to state a claim
for intentional infliction of emotional distress.
3. Defamation
Defendant argues that Plaintiff has failed to state a claim
for defamation because she failed to plead that Dr. Saloy made
any defamatory statement and that she suffered any injury. (Rec.
Doc. 23-1, p. 12) First, Defendant stresses that Dr. Saloy’s
alleged statement to students that Plaintiff “neglected their
academic
needs”
defamatory
is
an
statement.
opinion
Id.
that
Defendant
does
likens
not
qualify
this
as
statement
a
to
that at issue in Singleton v. St. Charles Parish, 02-590 (La.
App.
5
Cir.
11/26/02);
833
So.
2d
486,
496,
wherein
the
Louisiana Court of Appeal for the Fifth Circuit held that the
defendant’s statements calling the plaintiff “lazy” were opinion
and not actionable as defamation. Id. Second, Plaintiff failed
to allege any facts showing that she suffered an injury as a
result of Dr. Saloy’s statements. Id. Plaintiff’s statement that
Dr. Saloy “caus[ed] injury to [Plaintiff’s] good reputation” is
conclusory.
dismissal
Id.
of
Defendant
Plaintiff’s
argues
that
defamation
these
claim.
defects
Id.
warrant
Plaintiff’s
opposition does not address her defamation claim.
“Defamation
person’s
is
interest
a
in
tort
his
which
or
her
18
involves
the
reputation
invasion
and
good
of
a
name.”
Costello v. Hardy, 2003-1146, p. 12 (La. 1/21/04); 864 So. 2d
129, 139. “Four elements are necessary to establish a defamation
cause of action: (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.” Trentecosta v. Beck, 96-2388, p. 10 (La.
10/21/97); 703 So. 2d 552, 559. “If even one of the required
elements of the tort is lacking, the cause of action fails.” 7
Costello, 2003-1146 at 12; 864 So. 2d at 140.
The Court first will address whether Plaintiff has alleged
an
actionable
defamatory
statement.
“A
plaintiff
alleging
a
cause of action for defamation must set forth in the petition
with reasonable specificity the defamatory statements allegedly
published by the defendant.” St. Germain v. Coulon, 04-531, p. 5
(La. App. 5 Cir. 10/26/04); 887 So. 2d 608, 611. “Generally, a
communication is defamatory if it tends to harm the reputation
of another so as to lower the person in the estimation of the
community, to deter others from associating or dealing with the
person, or otherwise exposes a person to contempt or ridicule.”
Fitzgerald v. Tucker, 98-2313 (La. 6/29/99); 737 So. 2d 706,
716. A “pure statement of opinion” usually is not actionable in
defamation because “falsity is an indispensable element of any
7
It does not appear to the Court that Plaintiff has alleged that Dr. Saloy
used words qualifying as defamatory per se. Thus, “[P]laintiff must prove, in
addition to defamatory meaning and publication, the elements of falsity,
malice (or fault) and injury.” Costello, 2003-1146 at 14; 864 So. 2d at 140.
19
defamation
claim,
and
a
purely
subjective
statement
can
be
neither true nor false.” Bussie v. Lowenthal, 535 So. 2d 378,
381 (La. 1988). However, “if a statement of opinion implies that
certain facts exist, then such a statement, even though couched
in
terms
of
defamation
an
opinion,
action
if
could
the
certainly
implied
give
factual
rise
to
assertions
a
are
defamatory and false.” Fitzgerald, 737 So. 2d at 717.
Here, Plaintiff’s defamation claim seems to derive from Dr.
Saloy’s
alleged
statements
to
the
effect
that
Plaintiff
was
“neglecting [her students’] academic needs.” (Rec. Doc. 9, p. 1)
Defendant argues that this statement is a purely subjective one,
akin to calling Plaintiff “lazy,” and the Court agrees. “[T]he
crucial difference between statement of fact and opinion depends
upon
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.” Mashburn v. Collin, 355 So. 2d 879, 885 (La.
1977).
suggest
Accusing
the
Plaintiff
existence
of
of
“neglecting”
some
underlying
students
fact.
does
It
not
is
pure
opinion, which “can be neither true nor false.” See Singleton,
02-590, pp. 15-16; 833 So. 2d at 496. Plaintiff therefore has
failed
to
allege
the
existence
of
a
false
and
statement as required to state a claim for defamation.
20
defamatory
Even if the Court were to find Dr. Saloy’s statement false
and defamatory, however, the Court does not find that Dr. Saloy
made
the
statement
with
the
requisite
fault.
“The
fault
requirement is often set forth in the jurisprudence as malice,
actual or implied.” Costello, 2003-1146 at 12; 864 So. 2d at
139. “Malice (or fault), for purposes of the tort of defamation,
is a lack of reasonable belief in the truth of the statement
giving
seems
rise
to
argue
defamatory
without
to
an
the
defamation.”
that
because
excuse.
Dr.
it
Id.
Saloy’s
suggested
Plaintiff
at
143.
Here,
statement
that
further
she
was
Plaintiff
false
canceled
states
that
and
classes
such
a
suggestion is false because her doctor excused her from work
that week. Plaintiff alleges that she submitted a copy of her
doctor’s
excuse
to
Department
of
Arts
&
Humanities’
Chair,
Corthel Clark, and Secretary, Zena Ezeb. (Rec. Doc. 1, pp. 8-9)
Plaintiff does not allege, however, that she told Dr. Saloy that
her doctor excused her from work or that someone else informed
Dr. Saloy of that fact. 8 The Court therefore finds that, to the
extent that Dr. Saloy’s statement suggests an underlying fact
that is false, there is no evidence to support the conclusion
that Dr. Saloy made the aforementioned statement with “a lack of
reasonable belief in [its] truth.” Thus, the Court concludes
8
Plaintiff’s conclusory allegation that “Dr. Saloy, as representative of
Dillard University, purposely set out to defame [her] professional character
by falsely causing injury to [her] good reputation” is insufficient to cure
this defect. See (Rec. Doc. 9, p. 1).
21
that
Plaintiff
statement
has
failed
the
fault
with
to
show
that
required
to
Dr.
Saloy
support
a
made
the
claim
for
defamation.
Additionally,
the
Court
notes
that
Plaintiff
fails
to
allege any actual injury as a result of the alleged statement.
Although
it
is
true
that
“[t]he
injury
resulting
from
a
defamatory statement may include nonpecuniary or general damages
such
as
injury
embarrassment
and
to
reputation,
mental
personal
anguish,”
a
humiliation,
plaintiff
still
[or]
“must
present competent evidence of the injuries suffered.” Costello,
2003-1146 at 14; 864 So. 2d at 141. Plaintiff has failed to
present
evidence
of
any
injury
resulting
from
the
alleged
statement beyond a multitude of conclusory remarks. Given the
aforementioned deficiencies, the Court finds that Plaintiff has
failed to state a claim for defamation.
4. Constitutional Claims
Defendant
asserts
that
Plaintiff’s
constitutional
claims
must fail because Dillard University is a private institution.
(Rec.
Doc.
23-1,
p.
13)
Plaintiff
does
not
address
these
arguments.
The Court finds that Plaintiff has failed to state a claim
for the violation of her constitutional rights. (Rec. Doc. 23-1,
p.
13)
As
Defendant
argued
in
its
motion,
Plaintiff
cannot
maintain her constitutional claims without alleging some kind of
22
government or state actor. Id. (citing Lovell v. Hurford, No.
96-1178,
1996
WL
331101,
at
*4
(E.D.
La.
June
14,
1996)).
Plaintiff has not alleged that Defendant is a public institution
or that it was otherwise clothed with state action at the time
of the alleged violations, and the Court finds no basis for
finding as much. Plaintiff therefore failed to state a claim for
the violation of her constitutional rights. See Blouin v. Loyola
Univ., 506 F.2d 20, 21-22 (5th Cir. 1975).
5. Negligence Claims
Defendant
sounding
in
argues
that
negligence,
Plaintiff
such
as
cannot
maintain
negligent
claims
infliction
of
emotional distress and “grievance and gross negligence,” because
workers’
compensation
provides
the
exclusive
remedy
for
an
employee injured by the negligent acts of her employer or coemployee. (Rec. Doc. 23-1, pp. 13-14) Plaintiff does not address
this argument in her opposition.
“In
Louisiana,
as
in
most
states,
workers’
compensation
generally is the exclusive remedy for a workplace injury.” Grant
v. Tulane Univ., No. Civ.A. 00-3465, 2001 WL 245785, at *1 (E.D.
La. Mar. 9, 2001). Indeed, “Louisiana’s workers’ compensation
statute provides the exclusive remedy for an employee injured by
the negligent acts of her co-employees or employer.” Lajaunie v.
Hibernia Corp., No. Civ.A. 99-0285, 2000 WL 145362, at *7 (E.D.
La.
Feb.
8,
2000)(citing
White,
23
585
So.
2d
at
1208).
“A
prerequisite to any action arising under the Louisiana Workers’
Compensation
employee
Act
Act,
however,
relationship.”
creates
a
is
Id.
presumption
the
existence
Louisiana’s
of
of
an
Workers’
employment
for
employer-
Compensation
those
rendering
service for another in trade or business. Campora v. Falstaff,
L.L.C., 2001-2014 (La. App. 4 Cir. 6/12/02); 823 So. 2d 389,
391-92 (citing LA. REV. STAT. ANN. § 23:1044). Generally, however,
“for an employer-employee relationship to exist, there must be a
contract
of
employment,
either
express
or
implied,
whereby
services are furnished in anticipation of compensation.” Dustin
v.
DHCI
Home
Health
Servs.,
Inc.,
95-1989
(La.
App.
1
Cir.
5/10/96); 673 So. 2d 356, 359.
The
Court
concludes
that
Plaintiff’s
claims
sounding
in
negligence are foreclosed by Louisiana’s Workers’ Compensation
Act. Plaintiff’s complaint includes a letter from Defendant in
which Yolanda Page, Vice President for Academic Affairs, orders
Plaintiff
to
return
her
key
and
other
university
property
because she is “no longer a Dillard University employee.” (Rec.
Doc.
1,
p.
6)
Nothing
in
Plaintiff’s
complaint,
amended
complaint, or opposition suggests that she was not Defendant’s
employee during the Fall 2013 semester. In fact, Plaintiff’s
opposition makes reference to an employment contract. (Rec. Doc.
28,
p.
already
3)(“As
a
result,
recommended
that
by
my
January
8,
contract
24
2014,
be
Dr.
revoked
Saloy
had
for
the
spring.”).
Because
the
Court
concludes
that
Plaintiff
was
Defendant’s employee, Louisiana’s workers’ compensation statute
provides
Plaintiff’s
exclusive
remedy
here.
The
Court
grants
Defendant’s motion with respect to Plaintiff’s claims sounding
in negligence.
6. Leave to Amend
Although Plaintiff has not requested leave to amend her
complaint
in
response
to
Defendant’s
motion
to
dismiss,
the
Court will address the issue. The Court acknowledges that it is
common to permit a plaintiff to amend his or her complaint in
response to a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). See, e.g., Stripling v. Jordan Prod.
Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000). However, “[i]t
is within the district court’s discretion to deny [leave] to
amend if it [would be] futile.” Id. The Fifth Circuit defines
“futility” in this context to mean “that the amended complaint
would fail to state a claim upon which relief could be granted.”
Id. at 873. Here, because Plaintiff has not requested leave, the
Court cannot truly examine whether her proposed amendment would
be
futile.
previously
Defendant’s
The
Court
amended
motion
her
to
notes,
however,
complaint.
dismiss,
that
Plaintiff
Additionally,
the
Court
in
has
analyzing
considered
the
allegations Plaintiff set forth in her opposition. Consequently,
the Court reasons that granting Plaintiff leave to amend her
25
complaint
again
would
be
statements
or
threats
had
defamation
or
intentional
futile.
If,
occurred
infliction
for
to
of
example,
support
other
Plaintiff’s
emotional
distress
claims, Plaintiff surely would have included them in either her
complaint, amended complaint, or opposition. The Court therefore
declines to grant Plaintiff leave to amend her complaint.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss
Pursuant
to
Federal
Rules
of
Civil
Procedure
12(b)(1)
and
GRANTED
with
12(b)(6). (Rec. Doc. 23) is GRANTED IN PART.
IT
IS
FURTHER
ORDERED
that
the
motion
is
respect to Plaintiff’s Title VII discrimination, Equal Pay Act,
intentional
infliction
of
emotional
distress,
defamation,
constitutional, and negligence claims.
IT
IS
FURTHER
ORDERED
that
the
motion
is
DENIED
with
respect to Plaintiff’s Title VII retaliation claim.
IT IS FURTHER ORDERED that the motion is DENIED inasmuch as
it seeks to dismiss claims under the ADA or ADEA that Plaintiff
has not alleged.
New Orleans, Louisiana this 23rd day of December, 2014.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
26
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