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