Tedesco v. Pearson Education, Inc. et al

Filing 26

ORDER AND REASONS granting in part, denying in part 12 Motion to Dismiss for Failure to State a Claim, as stated herein. Signed by Judge Lance M Africk on 6/4/2021. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIFFANIE TEDESCO

CIVIL ACTION

VERSUS

No. 21-199

PEARSON EDUCATION, INC., ET AL.

SECTION I

ORDER & REASONS
Plaintiff Tiffanie Tedesco (“Tedesco”) alleges that her former employer,
defendant Pearson Education, Inc. (“Pearson”), discriminated against her based on
her genetic information and mental disability. Now before the Court is Pearson’s
motion 1 to dismiss Tedesco’s complaint, under Federal Rule of Civil Procedure
12(b)(6), for failure to state a claim. Tedesco opposes 2 the motion, to which Pearson
replied. 3 The motion is granted in part and denied in part for the reasons below.
I. 4
Tedesco was a high-performing sales representative for Pearson’s Higher
Education Division. 5 In 2017 and 2018, Pearson awarded her with membership in
the President’s Club, an honor reserved for the top 1% of Pearson’s sales personnel. 6
In 2018, she won the Pearson Award for having the highest cumulative sales over the

R. Doc. No. 12.
R. Doc. No. 15.
3 R. Doc. No. 20.
4 The following facts were taken exclusively from Tedesco’s complaint, and the Court
accepts them as true for purposes of deciding this Rule 12(b)(6) motion.
5 R. Doc. No. 1, at 4 ¶¶ 12, 16, 19.
6 Id. at 5 ¶ 21.
1
2

previous three years. 7 She was also selected by Pearson’s executive board to join the
firm’s Developing Leaders program, a “highly coveted” opportunity in a program that
“exists to transition employees into upper-management level roles.” 8 In short,
Pearson “considered [her] a leader,” “placed her in a training path for leadership and
management roles,” and “highly regarded” her “opinions.” 9
After her father’s tragic suicide on December 31, 2018, however, Tedesco
struggled to maintain that success. 10 She sought psychiatric treatment in January
2019 and was “[u]ltimately” diagnosed with “Major Depressive Disorder, PostTraumatic Stress Disorder, and Passive Suicidal Ideation.” 11
Tedesco’s Early Interactions with Supervisors & Co-Workers
The fallout after her father’s death bled into Tedesco’s work. In mid-January
2019, her direct supervisor, Ty Olden (“Olden”), asked her to take a “certification test,
which was an intensive internal test covering a wide range of higher education
subjects and disciplines relevant to Pearson’s product catalog.” 12 But because “Olden
expected Ms. Tedesco to perform at her usual high-achieving level, Ms. Tedesco felt
pressured to specify to Mr. Olden that her father died from a violent suicide and she,
therefore, feared she could not perform on the test as expected.” 13

Id. at 5 ¶ 23.
Id. at 5 ¶¶ 21–22.
9 Id. at 4 ¶¶ 17–18.
10 Id. at 5 ¶¶ 24–26.
11 Id. at 6 ¶ 33. She also “learned,” in “mid-March of 2019,” that “her greatgrandmother also died by suicide.” Id. at 6 ¶ 34. The complaint does not allege,
however, that Pearson ever learned of or elicited this information from Tedesco.
12 Id. at 5 ¶ 27.
13 Id. at 6 ¶ 28.
7
8

2

Olden explained that, to relieve Tedesco of her obligation to take the
certification test, “he would need to tell” Jeanne Bronson (“Bronson”), Pearson’s VicePresident of Sales and his direct supervisor. 14

Tedesco responded that she

“underst[oo]d” if Olden needed to tell Bronson, but she “clarified that the details were
‘my story to tell.’” 15 That is, Olden could share that information with Bronson only
“to the extent necessary to exempt Ms. Tedesco from the certification test.” 16
However, Tedesco alleges that Olden “gratuitously shared [her] private genetic
information regarding [her] family history of suicide and [her] genetic predisposition
to mental health issues with” Bronson. 17 And Bronson, in turn, shared that news
with Pearson’s managing director, “R.B.” 18
In March 2019, allegedly per Bronson’s instructions, R.B. then called Tedesco
to “obtain more information from Ms. Tedesco.” 19 “R.B. began the conversation by
saying ‘my condolences about your father.’” 20 R.B. then “shared intimate details of
her own life involving a suicide and thereby prompted”

Tedesco to “open up,”

prompting Tedesco to share “details” regarding her “private genetic information and
mental health.” 21

Tedesco claims that these actions—requesting, then sharing

internally, information concerning her father’s suicide—among other retaliatory

Id. at 6 ¶ 29.
Id. at 6 ¶ 30.
16 Id. at 6 ¶ 31.
17 Id. at 6 ¶ 32.
18 Id. at 7 ¶ 36. R.B.’s full name is not provided in the complaint.
19 Id. at 7 ¶ 38.
20 Id. at 7 ¶ 39.
21 Id. at 7 ¶ 39.
14
15

3

actions described below, violated her rights under the Genetic Information
Nondiscrimination Act.
On April 3, 2019, Bronson suggested that Tedesco “update her resume because
layoffs were coming.” 22 The next day, after Tedesco had a meal with a client, Bronson
arrived at the restaurant and “became agitated with Ms. Tedesco.” 23 Tedesco claims
that Bronson “raised her voice” at Tedesco and “said ‘You’re acting manic! You need
to get some help. I’ve never dealt with suicide before.’” 24 Bronson later admitted that
she shared “the details of” Tedesco’s father’s suicide with R.B. and asked her to
“question [Tedesco] regarding her mental health status.” 25 On April 7, 2019, Tedesco
filed for FMLA leave, to begin immediately, because Pearson management was
“treating her with severe hostility and harassing her due to her mental condition.” 26
On July 1, 2019, Tedesco’s tenure as Pearson’s “Evidence Field Champion”—a
“Pearson Peer Leadership Role” that is “reserved for high-achieving sales
representatives”—was renewed for another eighteen months, to begin in August 2019
and end January 2021. 27
Tedesco returned from her first FMLA leave on July 15, 2019. 28 However,
Tedesco complained that “her superiors . . . treated her as if she were untrustworthy

Id. at 7 ¶ 40.
Id. at 7 ¶ 42
24 Id. at 7 ¶ 43.
25 Id. at 8 ¶ 45.
26 Id. at 8 ¶ 51.
27 Id. at 10 ¶ 64–66.
28 Id. at 10 ¶ 67.
22
23

4

and incompetent to perform her job.” 29 For example, when Tedesco attempted to
relay to Olden a problem that a client was having, Olden responded by screaming and
cursing at her. 30 Tedesco describes this as a “pattern of behavior from Pearson
management.” 31 That “discriminatory and harassing treatment . . . exacerbated”
Tedesco’s depression, PTSD, and suicidal ideation. 32
Tedesco’s Accommodation Requests & Pearson’s Response
On September 14, 2019, Tedesco filed an internal complaint with Pearson
“regarding Ms. Bronson’s hostility towards her.” 33 Between then and November
2019, Tedesco “reported several incidents of harassment, retaliation, [and] hostile
work environment” to human resources, in which she “attempted to receive
reasonable accommodation.” 34 The accommodations she requested “were (1) to not be
forced to take leave; and (2) to be placed in a line of reporting wherein she could work
free from the ongoing hostility, harassment, and questioning regarding her mental
condition and competency.” 35 Such requests would allegedly not have been difficult
for Pearson to accommodate, since Pearson “will typically have some position
available within their global company to offer an employee.” 36

Id. at 10 ¶ 68.
Id. at 10 ¶ 69. Olden “screamed at her[,] ‘Are you calling about [redacted]
University? I don’t want to fucking hear it!’” Id.
31 Id. at 10 ¶ 70.
32 Id. at 10 ¶ 71.
33 Id. at 11 ¶ 73.
34 Id. at 11 ¶ 76.
35 Id. at 11 ¶ 77.
36 Id. at 16 ¶ 113.
29
30

5

On September 25, 2019, a Pearson human resources representative told
Tedesco that R.B. thought she should go back on leave. 37 Tedesco responded that she
did not want to take leave again. 38 On September 28, the same representative called
Tedesco again and asked if she “was suicidal.” 39 Tedesco responded in the negative
and reiterated that she did not want to go back on leave. 40 Instead, Tedesco asked
that “she be placed in a different position with Pearson due to the hostility she was
experiencing in her current placement under [her direct supervisor,] Olden.” 41 The
representative rejected Tedesco’s request and did not suggest any alternatives other
than that Tedesco take leave or vacation; instead, the representative “interrogat[ed]”
Tedesco about whether she “would self-harm.” 42 Immediately after the phone call,
Tedesco requested vacation, as directed by the representative. 43
On September 30, 2019, Tedesco and R.B. (Pearson’s managing director) spoke
via phone; R.B. told Tedesco that she “had R.B.’s full support to quit her job with
Pearson.” 44 R.B. knew that Tedesco wished to continue working for Pearson, 45 but
provided no option other than resignation. 46 The next day, Tedesco took vacation “to
avoid being forced to take leave again.” 47 The complaint does not state how long this

Id. at 12 ¶ 78.
Id. at 12 ¶ 81.
39 Id. at 12 ¶ 82.
40 Id.
41 Id. at 12 ¶ 83.
42 Id. at 12 ¶¶ 85–86.
43 Id. at 13 ¶ 87.
44 Id. at 13 ¶ 88.
45 Id.
46 Id. at 13 ¶ 89.
47 Id. at 13 ¶ 90.
37
38

6

vacation lasted, or whether it was in addition to the one requested on September 28.
However, on October 18, Tedesco “had no choice but to file a claim for Short-Term
Disability as she could no longer work without an accommodation.” 48 Those disability
benefits began on November 4. 49
On November 20, 2019, Tedesco emailed human resources “regarding the
status of her complaint against” Bronson; the representative responded that Tedesco
should not be working while on leave and, as Tedesco puts it, “suggest[ed] her mental
condition was questionable.” 50
On January 18, 2020, a Pearson manager emailed Pearson employees to state
that Tedesco’s tenure as Evidence Field Champion ended on December 31, 2019, “a
year earlier than promised,” and named Ms. Tedesco’s replacement in that role. 51
Tedesco was later approved, on May 5, 2020, for long-term disability leave through
April 27, 2022. 52
Tedesco Files EEOC Charges & is Terminated
On April 23, 2020, Tedesco filed a charge of discrimination with the EEOC,
alleging that Pearson discriminated and retaliated against her based on genetic
information and disability. 53 After an unsuccessful EEOC mediation, the case was
transferred to the EEOC’s investigative division. 54

Id. at 13 ¶ 91.
Id. at 13 ¶ 92.
50 Id. at 13 ¶ 93.
51 Id. at 13 ¶ 95.
52 Id. at 14 ¶ 98.
53 Id. at 14 ¶ 96.
54 Id. at 14 ¶¶ 99–100.
48
49

7

On July 23, Pearson’s H.R.

representative emailed Tedesco “requesting additional medical information
regarding [her] ability to perform essential work functions and [her] return date.” 55
On July 31, Tedesco’s psychologist responded with a letter, reporting that Tedesco
was disabled and that returning to work would negatively affect her recovery. 56
On August 5, 2020, Pearson terminated Tedesco’s employment. 57

The

termination letter explained that Pearson “has no choice but to terminate Ms.
Tedesco’s employment as it cannot hold her position open indefinitely.” 58 On August
28, Tedesco filed a second charge of discrimination with the EEOC, alleging that
Tedesco’s termination constituted retaliation against Tedesco for her disclosing
genetic information, requesting accommodation, and filing the original EEOC
charge. 59 The EEOC issued Tedesco notices of a right to sue on November 3, and she
timely filed this lawsuit within ninety days. 60
Tedesco brings five claims: (1) “violations of rights” under the Genetic
Information Nondiscrimination Act (“GINA”); 61 (2) “violations of rights” under the
Americans with Disabilities Act (“ADA”), 62 which Pearson treats as both
discrimination and failure-to-accommodate claims; 63 (3) unlawful retaliation under

Id. at 14 ¶ 101.
Id. at 15 ¶ 109.
57 Id. at 15 ¶ 110.
58 Id. at 15 ¶¶ 110–12.
59 Id. at 16–17 ¶ 118.
60 Id. at 17 ¶ 120.
61 Id. at 17–19 ¶¶ 121–32.
62 Id. at 19–21 ¶¶ 133–48.
63 R. Doc. No. 12-1, at 19 n.4.
55
56

8

the ADA; 64 (4) comparable genetic-information-based and disability-based claims
under the Louisiana Employment Discrimination Law (“LEDL”); 65 and (5) a statelaw claim for breach of the implied covenant of good faith and fair dealing. 66
II.
Pursuant to Rule 12(b)(6), a district court may dismiss a complaint or part of
a complaint when a plaintiff fails to set forth well-pleaded factual allegations that
“raise a right to relief above the speculative level.” See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570).
A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the
court to infer more than the mere possibility of misconduct,” then “the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679
(quoting Fed. R. Civ. Proc. 8(a)(2)) (alteration in original).
In assessing the complaint, a court must accept all well-pleaded facts as true
and liberally construe all factual allegations in the light most favorable to the
plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Gentilello v.

R. Doc. No. 1, at 21–22 ¶¶ 149–54.
Id. at 22–23 ¶¶ 155–63.
66 Id. at 23–24 ¶¶ 164–68.
64
65

9

Rege, 627 F.3d 540, 543–44 (5th Cir. 2010). However, courts “do not accept as true
conclusory allegations, unwarranted factual inferences, or legal conclusions.” Plotkin
v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). Furthermore, “the Court must
typically limit itself to the contents of the pleadings, including attachments
thereto.” Admins. of the Tulane Educ. Fund v. Biomeasure, Inc., No. 08-5096, 2011
WL 4352299, at *3 (E.D. La. Sept. 16, 2011) (Vance, J.) (citing Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)). “Dismissal is appropriate
when the complaint ‘on its face show[s] a bar to relief.’” Cutrer v. McMillan, 308 F.
App’x 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970
(5th Cir. 1986) (alteration in original)).
III.
Before the Court analyzes the merits of Pearson’s motion, it pauses to clarify
what it is and is not considering. Attached to Pearson’s Rule 12(b)(6) motion and
referenced throughout it are a number of documents that, it says, are clearly
referenced in Tedesco’s complaint and central to her claims. 67
Under Federal Rule of Civil Procedure 12(d), “[w]hen a party bases a motion to
dismiss on matters outside the pleadings, the court has discretion either to accept the
extraneous material and convert the motion to dismiss into a motion for summary
judgment, or to decide the motion, as defendant styled it, under the principles of Rule
12(b)(6).” Rubio v. Hyatt Corp., No. 17-7833, 2017 WL 5177943, at *2 (E.D. La. Nov.
8, 2017) (Barbier, J.) (quoting McDonald v. Kansas City S. Ry. Co., No. 16-15975,

67

R. Doc. No. 12-1, at 7.
10

2017 WL 1709353, at *2 (E.D. La. May 3, 2017) (Vance, J.)); see also 5C Wright &
Miller, Fed. Prac. & Proc. § 1366 (3d ed.) (“[F]ederal courts have complete discretion
to determine whether or not to accept the submission of any material beyond the
pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it,
thereby converting the motion, or to reject it or simply not consider.”).
Pearson argues that the Court may consider the exhibits attached to its motion
to dismiss without converting it to a summary-judgment motion “because they are
‘(1) attached to the motion; (2) referenced in the complaint; and (3) central to the
plaintiff’s claims.’” 68

The first point is true, the second is generally true, 69 but the

third is overstated. Even assuming every attached exhibit is sufficiently referenced
in the complaint, it is difficult to discern how all are categorically “central to
[Tedesco’s] claims”—as is required to be considered without converting Pearson’s
motion into a motion for summary judgment. Brand Coupon Network, L.L.C. v.
Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014); cf. SMH Enters., L.L.C. v.
Krispy Krunchy Foods, L.L.C., No. 20-2970, 2021 WL 1226411, at *6 n.35 (E.D. La.
Apr. 1, 2021) (Vance, J.) (finding terms and conditions document, which purported to
be part of the “agreement between the parties,” was central to the plaintiff’s breach
of contract claim).

R. Doc. No. 12-1, at 7 (quoting Maloney Gaming Mgmt., L.L.C. v. St. Tammany
Par., 456 F. App’x 336, 340–41 (5th Cir. 2011)).
69 Some of the exhibits are indirectly referenced in the complaint. See, e.g., R. Doc.
No. 1, at 13 ¶ 93 (“On November 20, 2019, Ms. Tedesco emailed Mr. Grunwald
regarding the status of her complaint against Ms. Bronson for violation of Pearson’s
code of conduct.”); R. Doc. No. 12-6 (the referenced email).
68

11

Moreover, Pearson makes no argument as to how each of these exhibits are so
central to Tedesco’s claims—other than by a single, blanket assertion. 70

These

documents and the factual arguments they support are better considered in a timely
motion for summary judgment. See Express Lien, Inc. v. Handle, Inc., No. 19-10156,
2020 WL 1030847, at *10 (E.D. La. Mar. 3, 2020) (Vance, J.) (concluding the same
and noting the court’s “complete discretion to determine whether or not to accept any
material beyond the pleadings” when deciding a Rule 12(b)(6) motion (quoting Isquith
ex rel. Isquith v. Middle S. Utilities, Inc., 847 F.2d 186, 194 n.3 (5th Cir. 1988))).
Accordingly, for purposes of Rule 12(d), the Court notes that it will not consider
any of the exhibits attached to Pearson’s motion to dismiss; it will assume the truth
of all well-pleaded facts in Tedesco’s complaint.
IV.
A.

Tedesco’s GINA Claims Must be Dismissed

The Genetic Information Nondiscrimination Act (“GINA”) prohibits employers
from taking adverse actions against an employee “because of genetic information with
respect to the employee.” 42 U.S.C. §§ 2000ff-1(a)(1), (2). GINA also makes it
unlawful, with some exceptions, 71 for employers to “request, require, or purchase

See R. Doc. No. 12-1, at 7 (arguing that “the Court may consider them . . . because
they are . . . ‘central to the plaintiff’s claims’” (quoting Maloney Gaming Mgmt., 456
F. App’x at 340–41)).
71 Two exceptions potentially relevant here are (1) “where an employer inadvertently
requests or requires family medical history of the employee or family member of the
employee,” 42 U.S.C. § 2000ff-1(b)(1) (emphasis added), and (2) “where an employer
requests or requires family medical history from the employee to comply with the
certification provisions of” the Family and Medical Leave Act or its state-law
70

12

genetic information with respect to an employee or a family member of the employee.”
Id. § 2000ff-1(b). At issue here is whether GINA is even implicated by this case—
that is, whether Pearson obtained “genetic information” as GINA defines it.
“For purposes of GINA, ‘genetic information’ means information about the
‘genetic tests’ of an individual or her family members, and information about ‘the
manifestation of a disease or disorder in family members of such individual.’” Ortiz
v. City of San Antonio Fire Dep’t, 806 F.3d 822, 826 (5th Cir. 2015) (quoting 42 U.S.C.
§ 2000ff(4)(A)). But a mere diagnosis of a disease or disorder in a family member “is
not considered ‘genetic information’ if ‘such information is taken into account only
with respect to the individual in which such disease or disorder occurs and not as
genetic information with respect to any other individual.’”

Poore v. Peterbilt of

Bristol, L.L.C., 852 F. Supp. 2d 727, 731 (W.D. Va. 2012) (quoting H.R. Rep. No. 11028, pt. 2, at 27 (2007), 2008 U.S.C.C.A.N. 101, 105–06). In other words, “evidence of
a family member’s disease diagnosis is only considered ‘genetic information’ if used
to determine the likelihood of disease in another individual.”

Allen v. Verizon

Wireless, No. 12-482, 2013 WL 2467923, at *23 (D. Conn. June 6, 2013) (citing
Poore, 852 F. Supp. 2d at 731).
Tedesco argues that GINA “defines [‘genetic information’] more broadly than
the As, Ts, Cs, and Gs of a DNA test.” 72 She asserts that “[s]uicide and suicidal
behavior are highly familial” and cites a study and a WebMD article that, she says,

equivalent, id. § 2000ff-1(b)(3). Since the Court concludes that Pearson never
obtained genetic information, it need not reach these exceptions.
72 R. Doc. No. 15, at 5.
13

“support the view that . . . the transmission of suicidal behavior is at least in part
genetic.” 73 She concludes that “[i]nformation about the manifestation of mental
health issues and suicide in Tiffanie Tedesco’s family members is protected genetic
information under GINA.” 74

Employing that definition, she alleges that the

“deliberate[] request[s]” from multiple Pearson employees about “the manifestation
of mental health issues and suicide in Ms. Tedesco’s family,” along with their sharing
of that information, without Tedesco’s prior written authorization, violated GINA.
See 42 U.S.C. § 2000ff-1(b)(2)(B). 75

Similarly, Pearson “discriminated” against

Tedesco “by forcing her to take FMLA leave, which interfered with the terms or
privileges of her employment as a salesperson.” 76
Pearson argues that its knowledge of the suicide alone—even alongside
knowledge that suicide may generally have a genetic basis—is not enough to
transform that knowledge into genetic information. Instead, “Pearson must also
possess knowledge that [Tedesco’s] father’s suicide was related to his genetic makeup,
and not, for example, prompted by outside stressors, neurological disease, or
environmental factors. [Tedesco] has made no allegations that she supplied any such

R. Doc. No. 1, at 17–18 ¶ 125. Pearson argues that the principal study cited by
Tedesco is more equivocal, quoting the study: “‘at best only 50% of the variance is
explained by genes,’ and manifestation of suicide is also caused by ‘neuroticism and
neurocognitive deficits,’ ‘environmental factors,’ and ‘interaction with a stressful
environment.’” R. Doc. No. 20, at 3 (quoting David A. Brent & Nadine Melhem, 31:2
Familial Transmission of Suicidal Behavior, Psych. Clinics of N. Am., at 157–77
(2008)).
74 R. Doc. No. 1, at 18 ¶ 126.
75 Id. at 18 ¶¶ 128–29.
76 Id. at 18–19 ¶¶ 130–32.
73

14

information to Pearson.” 77 Pearson concludes that “it is neither Pearson’s nor this
Court’s responsibility to determine if Plaintiff’s father’s suicide was related to a
genetic condition or not. To state a claim, Plaintiff must simply allege that she
specifically told Pearson that her father’s suicidal tendency was specifically linked to
a genetic condition.” 78 The Court agrees with Pearson for two reasons.
First, GINA’s definition of genetic information is not as broad as Tedesco
makes it out to be. Although it is true that GINA defines “genetic information” to
include family medical history, that was done to prevent employers from using such
information “as a surrogate for genetic traits.” Poore, 852 F. Supp. 2d at 730 (quoting
H.R. Rep. No. 110-28, pt. 1, at 36 (2007), 2008 U.S.C.C.A.N. 66, 80). It therefore
follows that, to state a claim under GINA, the plaintiff must allege at least that the
employer, when requesting family medical history, believed it was dealing with
genetic information. Holding otherwise could impose liability on employers merely
for inquiring about the health or safety of an employee’s family member, a scenario
to which the relevant regulations expressly counsel against applying GINA. See 29
C.F.R. § 1635.8(b)(1)(ii)(B) (providing that the “inadvertent acquisition of genetic
information” exception applies if the employer collected genetic information, inter
alia, “in response to an ordinary expression of concern” for the employee or a family
member and providing examples). 79

R. Doc. No. 20, at 3.
Id. at 3–4.
79 These examples include:
For example, the exception applies when the covered entity, acting
through a supervisor or other official, receives family medical history
77
78

15

The Fifth Circuit has not determined when family medical history crosses the
line to become genetic information, and this Court has not found a single case
applying GINA to claims involving a family history of suicide. There have been
several cases, however, that have accepted the premise that genetic information
includes the manifestation of cancer in family members. See Punt v. Kelly Services,
862 F.3d 1040, 1052 (10th Cir. 2017) (accepting premise as to family history of breast
cancer, but concluding employer did not discriminate against employee “because of”
this genetic information); Jackson v. Regal Beloit America, Inc., No. 16-134, 2018 WL
3078760, at *15 (E.D. Ky. June 21, 2018) (concluding history of colon cancer was
genetic information). In those cases, unlike here, there was no question that the
employer knew the disease at issue had a genetic cause.
Here, however, Tedesco does not allege that Pearson knew her father’s suicide
was caused by a genetic condition—or even that Pearson knew that it could have been
so caused.

Without such an allegation, Tedesco fails to state a claim that Pearson

collected what it believed to be genetic information—information that could predict
Tedesco’s mental condition.

Based on the complaint’s allegations, Pearson was

directly from an individual following a general health inquiry (e.g., “How
are you?” or “Did they catch it early?” asked of an employee who was just
diagnosed with cancer) or a question as to whether the individual has a
manifested condition. Similarly, a casual question between colleagues,
or between a supervisor and subordinate, concerning the general wellbeing of a parent or child would not violate GINA (e.g., “How’s your son
feeling today?”, “Did they catch it early?” asked of an employee whose
family member was just diagnosed with cancer, or “Will your daughter
be OK?”).
29 C.F.R. § 1635.8(b)(1)(ii)(B).
16

asking only about an employee’s tragic loss of a family member. It would be one thing
if the only cause of suicide is genetic; then, perhaps, Pearson may be held liable for
requesting information about it—since it is information concerning a solely genetic
disorder.

But Tedesco does not even allege that, instead claiming only that

“transmission of suicidal behavior is at least in part genetic.” 80 That is insufficient
under GINA, absent allegations that Pearson knew otherwise.
Second, Tedesco “ignores the statutory distinction between ‘medical
information’ and ‘genetic information.’” Ortiz, 806 F.3d at 826. GINA specifically
exempts “the use, acquisition, or disclosure of medical information that is not genetic
information about a manifested disease, disorder, or pathological condition of an
employee or member, including a manifested disease, disorder, or pathological
condition that has or may have a genetic basis.” 42 U.S.C. § 2000ff-9 (emphasis
added). “A disease, disorder, or pathological condition is considered ‘manifested’ if
the individual ‘has been or could reasonably be diagnosed with the disease, disorder,
or pathological condition by a healthcare professional[.]’ A disease, disorder, or
pathological condition is not considered manifested ‘if the diagnosis is based
principally on genetic information.’” Equal Emp. Opportunity Comm’n v. Grisham
Farm Prod., Inc., 191 F. Supp. 3d 994, 997–98 (W.D. Mo. 2016) (quoting 29 C.F.R. §
1635.3(g)). Accordingly, if the information relates to a condition that has manifested
in the employee, the information is medical, not genetic—notwithstanding whether
the condition has a genetic basis.

80

R. Doc. No. 1, at 17–18 ¶ 125 (emphasis added).
17

Here, the complaint states that Tedesco began medical treatment in “January
of 2019” following her father’s suicide, which occurred on December 31, 2018. She
was “ultimately” diagnosed with a variety of psychological disorders. Accordingly, to
the extent her father’s suicide was caused by a genetic mental disorder, as Tedesco
alleges, that condition had already manifested in Tedesco—sometime in or shortly
after January 2019—taking it out of the scope of the “genetic information” definition
and into the “medical information” exclusion.
For these two reasons, the Court dismisses Tedesco’s GINA claims, as ordered
below.
B.

Tedesco’s ADA-Based Discrimination, Failure-to-Accommodate,
and Retaliation Claims Survive

A plaintiff alleging disability discrimination need not produce evidence of a
prima facie case to survive a Rule 12(b)(6) motion to dismiss. Stone v. La. Dept. of
Revenue, 590 F. App’x 332, 339 (5th Cir. 2014). But she must still “plead sufficient
facts on all of the ultimate elements . . . to make her case plausible.” Chhim v. Univ.
of Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016). “[I]t can be helpful to reference
the McDonnell Douglas framework” to answer that question—even in cases arising
under the ADA. Id.; E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th
Cir. 2009) (applying McDonnell Douglas to a disability discrimination claim). And
when the plaintiff has only circumstantial evidence of discrimination, McDonnell
Douglas governs the ultimate analysis. See Clark v. Champion Nat’l Sec., Inc., 952
F.3d 570, 582 (5th Cir. 2020) (explaining that a plaintiff “may either present direct
evidence that [he] was discriminated against . . . or alternatively proceed under”
18

McDonnell Douglas), cert. denied sub nom. Clark v. Inco Champion Nat’l Sec., Inc.,
141 S. Ct. 662.
“To establish a prima facie discrimination claim under the ADA, a plaintiff
must prove: (1) that he has a disability; (2) that he was qualified for the job; and (3)
that he was subject to an adverse employment decision on account of his disability.”
Clark, 952 F.3d at 582 (quoting Moss v. Harris Cty. Constable Precinct One, 851 F.3d
413, 417 (5th Cir. 2017)). As for a failure-to-accommodate claim, the plaintiff must
allege and ultimately prove that “(1) the plaintiff is a ‘qualified individual with a
disability;’ (2) the disability and its consequential limitations were ‘known’ by the
covered employer; and (3) the employer failed to make ‘reasonable accommodations’
for such known limitations.” Feist v. Louisiana, 730 F.3d 450, 452 (5th Cir. 2013)
(quoting Mzyk v. N.E. Indep. Sch. Dist., 397 F. App’x 13, 16 (5th Cir. 2010)).
And as for a prima facie retaliation claim, a plaintiff must allege and
ultimately prove that “(1) he engaged in a protected activity; (2) he suffered an
adverse employment action; and (3) there is a causal link between the first two
elements.” Jenkins v. Cleco Power, LLC, 487 F.3d 309, 317 n.3 (5th Cir. 2007)
(citing Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 n.8 (5th Cir. 1998)).
Pearson appears to assume that Tedesco has sufficiently alleged the first two
elements. 81 The Court will do the same. 82

See R. Doc. No. 12-1, at 22–23 (citing the three-part retaliation test and arguing
only that causation was not sufficiently alleged).
82 These appear to be safe assumptions: the Fifth Circuit has noted that “[e]very
appeals court to consider this issue has concluded that [a request for accommodation]
is protected as long as the employee had the reasonable belief that he was covered by
81

19

Tedesco’s complaint alleges three claims under the ADA: discrimination,
failure-to-accommodate, and retaliation. 83

Pearson makes four arguments for

dismissal: (1) Tedesco could not perform the essential functions of her job and
therefore was not a “qualified individual” for ADA purposes, which defeats her
disability-discrimination and failure-to-accommodate claims; (2) she did not engage
in the “interactive process,” so her failure-to-accommodate claim must fail; (3) her
termination was based on her indefinite multi-year leave, which Pearson was not
required to accommodate; and (4) even if Tedesco could establish a prima facie case
of discrimination or retaliation, Pearson terminated her employment because of nondiscriminatory reasons—her multi-year leave—so her retaliation claim must fail. 84
The Court rejects all four arguments.
1.

Tedesco was a Qualified Individual

As to the first argument: to claim the ADA’s protection, Tedesco must allege
facts showing that she was a “qualified individual”—“an individual who, with or
without reasonable accommodation, can perform the essential functions of the
employment position.” 42 U.S.C. § 12111(8). “Fact-finders must determine whether
a function is ‘essential’ on a case-by-case basis.” Credeur v. La. ex rel. Office of

the ADA.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 620 n.9 (5th
Cir. 2009). Termination, likewise, is an adverse employment action. Grubic v. City
of Waco, 262 F. App’x 665, 667 (5th Cir. 2008).
83 Tedesco’s second cause of action alleges “violation of rights” under the ADA, which
Pearson treats as “potential claims for both discrimination and failure-toaccommodate.” R. Doc. No. 12-1, at 19 n.4 (quoting R. Doc. No. 1, at 19 ¶¶ 133–48)
(internal quotation marks omitted). The Court treats them the same.
84 R. Doc. No. 12-1, at 19–24.
20

Attorney General, 860 F.3d 785, 792 (5th Cir. 2017) (quoting E.E.O.C. v. LHC Grp.,
Inc., 773 F.3d 688, 698 (5th Cir. 2014)) (internal quotations omitted).
To argue that Tedesco was not a qualified individual, Pearson relies solely on
the FMLA and disability leave that Tedesco took prior to her termination. It argues
that “[a]ttendance at work, the most basic element of an employee’s duties, is an
essential element of all jobs,” 85 and “[i]ndefinite leave is not a reasonable
accommodation.” 86 It points to the fact that Tedesco has been on long term disability
leave since October 2019 87—implying that she insisted on never returning to work.
But that argument ignores Tedesco’s core factual allegation: that she was able,
and wanted, to work for Pearson—but in a different line of reporting. 88 Tedesco has
very clearly alleged that “[t]he accommodations she requested were (1) to not be
forced to take leave; and (2) to be placed in a [different] line of reporting.” 89 She
alleged that it was Pearson officials who “suggested” that she go on leave 90—Tedesco
“request[ed] that she not be forced to take leave.” 91 Pearson insisted on such leave

R. Doc. No. 12-1, at 21 (citing Hypes v. First Commerce Corp., 134 F.3d 721, 727
(5th Cir. 1998)).
86 Id. (quoting Amsel v. Tex. Water Dev. Bd., 464 F. App’x 395, 400 (5th Cir. 2012))
(internal quotations omitted).
87 Id.
88 Pearson does not argue that such an accommodation would have amounted to an
undue hardship. See 42 U.S.C. §§ 12111(10)(A)–(B) (defining undue hardship); id. §
12112(b)(5)(A) (providing that an accommodation need not be provided where the
employer “can demonstrate that the accommodation would impose an undue
hardship on the operation of the business”).
89 R. Doc. No. 1, at 11 ¶ 77; see also id. at 12 ¶ 83 (requesting a different position).
90 Id. at 8 ¶ 50 (“Ms. Morel suggested Ms. Tedesco take FMLA leave.”).
91 See id. at 12 ¶ 79 (emphasis added); id. at 12 ¶ 81 (“But Ms. Tedesco did not want
to take leave.”).
85

21

even after Tedesco requested the accommodation, a request that Pearson
acknowledged but did not act upon. 92 Pearson may be correct that attendance at
work is an essential element of all jobs, but Tedesco never asked to be exempt from
attendance; she asked to be accommodated through placement in a separate line of
reporting.
Further, although Pearson is correct that “‘[i]indefinite leave is not a
reasonable accommodation,’ [Tedesco’s] complaint does not allege that she requested
additional leave from work without an end date.” Oncale v. CASA of Terrebonne
Parish, Inc., No. 19-14760, 2020 WL 3469838, at *8 (E.D. La. June 25, 2020) (Africk,
J.) (quoting Amsel, 464 F. App’x at 400). As just explained, Tedesco requested to be
accommodated through placement in a separate line of reporting. And the complaint
alleges a more definite return date than Pearson suggests: Tedesco was approved for
long-term disability leave only through April 27, 2022. 93 Further, Tedesco alleges it
was against Pearson policy to terminate employees who are on long-term disability, 94
which suggests Pearson treated Tedesco differently than other employees on

Id. at 12 ¶ 78 (“Mr. Grunwald[] told Ms. Tedesco that he spoke with R.B. regarding
Ms. Tedesco’s requested accommodations and options, and that R.B. thought Ms.
Tedesco should go back on leave.” (emphasis added)); id. at 12 ¶¶ 83–84 (“Ms. Tedesco
requested a reasonable accommodation, namely that she be placed in a different
position with Pearson due to the hostility she was experiencing in her current
placement under Ty Olden. . . . Ms. Rippolone rejected Ms. Tedesco’s request and did
not suggest any alternatives.”); id. at 14 ¶ 104 (“Ms. Tedesco responded to Pearson
management explaining how her requests for accommodation from September
through November 2019 were ignored and there was no ‘interactive process.’”).
93 Id. at 14 ¶ 98. To the extent the letter sent by Tedesco’s psychologist, see R. Doc.
No. 12-1, at 21 (discussing the letter), suggests a less definite end-date, it is not
conclusive proof of such.
94 R. Doc. No. 1, at 16 ¶ 113.
92

22

disability leave. While Pearson criticizes Tedesco for not “presenting that policy or
its contents,” 95 it is not her burden to do so to avoid dismissal. Tellingly, Pearson
stops short of claiming that it does not have such a policy. 96
All told, Tedesco has plausibly alleged that she was a qualified individual.
2.

Interactive Process

Next, Pearson insists—contrary to Tedesco’s well-pleaded facts—that she
“refused to engage in the interactive process.” 97 The “interactive process” is ADA
jargon for the procedure that identifies workable accommodations for disabled
employees.

It obligates employers, once an employee requests and suggests an

accommodation for a disability, to engage in “‘a meaningful dialogue with the
employee to find the best means of accommodating that disability.’ The process thus
requires ‘communication and good-faith exploration.’” Chevron Phillips, 570 F.3d at
621 (quoting Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005), and
Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 871 (6th Cir. 2007)) (cleaned up).
Based on Tedesco’s well-pleaded facts, it was Pearson that refused to engage
in the interactive process. Tedesco’s requests for accommodation were made between
September and November 2019. 98 Instead of coordinating with Tedesco to develop a

R. Doc. No. 20, at 5.
See id. This is telling because, as noted, Pearson attached several documents to
rebut some of Tedesco’s other allegations—or at least noted when such documentary
evidence does not exist. See R. Doc. No. 12-1, at 25–26 (“Pearson cannot attach the
referenced employment contract because none exists, as Plaintiff was an at-will
employee.”). Pearson fails to note here that the referenced policy does not exist.
97 R. Doc. No. 12-1, at 22.
98 R. Doc. No. 1, at ¶ 104.
95
96

23

mutually agreeable accommodation, Pearson responded by telling her to take leave,
use her vacation time, or quit. 99 By April 23, 2020, Tedesco’s requests remained
unanswered, and she retained counsel. 100 Pearson did not attempt to engage Tedesco
in its “interactive process” until July 23, 2020. 101
Pearson does not challenge any part of that timeline. Its only argument is that
Tedesco failed to engage in the interactive process following the July 2020 email, 102
which Pearson (implicitly) argues is enough to have absolved it of any obligation to
respond to Tedesco’s earlier requests. The Court is not so convinced—the interactive
process is a two-way street. See, e.g., Chevron Phillips, 570 F.3d at 621 (“When an
employer does not engage in a good faith interactive process, that employer violates
the ADA—including when the employer discharges the employee instead of
considering the requested accommodations.”).
Although it may be possible that Tedesco’s conduct and manner of requesting
accommodations contributed to a breakdown in the interactive process, that is a
factual question unfit for resolution on a motion to dismiss. See Stokes v. Nielsen,
751 F. App’x 451, 455 (5th Cir. 2018) (vacating grant of summary judgment for the
employer because a factual dispute existed as to whether the employee caused the
breakdown).

Instead, accepting as true the facts in Tedesco’s complaint, she

Id. at 12–13 ¶¶ 86–88.
Id. at 14 ¶ 96.
101 Id. at 14 ¶ 102.
102 R. Doc. No. 12-1, at 22.
99

100

24

sufficiently engaged in the interactive process. Accordingly, this is not a basis for
dismissing Tedesco’s ADA claims either.
3.

Tedesco’s Retaliation Claim Survives

Pearson makes two arguments as to Tedesco’s ADA retaliation claim. First,
Pearson argues that Tedesco insufficiently alleged that her engaging in protected
activity caused the adverse employment action (her termination), because the
temporal proximity between the two events was not sufficiently close. 103

It argues

that, “[w]hile a four-month gap may be sufficient evidence of causation, a five-month
gap is too long absent other evidence.” 104 And it points to the gaps in time between
Tedesco’s various leaves of absence and her termination on August 5, 2020: 16 months
from her first FMLA leave (April 7, 2019), and 10 months from her second (October
18, 2019). 105
Tedesco responds that the adverse employment action was not only her final
termination in August 2020, but also Pearson’s termination of “her tenure as
Evidence Field Champion, a year earlier than agreed upon,” 106 on January 18,
2020. 107 That narrows the gap to just a couple months—from October 2019, when
Tedesco first took disability leave, to January 2020, when she lost her title.
Pearson does not address this point in its reply—either as to whether this
qualified as an adverse employment action or whether its temporal proximity to her

Id. at 22–23.
Id. at 23 (Aguillard v. La. College, 824 F. App’x 248, 251 (5th Cir. 2020)).
105 Id.
106 R. Doc. No. 15, at 10 (citing R. Doc. No. 1, at 13 ¶ 95) (emphasis in original).
107 Id.
103
104

25

taking leave is close enough to suggest causation. For purposes of retaliation claims,
a materially adverse employment action is one that “might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Cabral v.
Brennan, 853 F.3d 763, 767 (5th Cir. 2017) (quoting Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006)). 108
Given the prestige of the Evidence Field Champion title—and, more
importantly, the $5,000 bonus and advancement opportunities that it came with 109—
its being taken away from Tedesco plausibly could have dissuaded her from filing a
charge of discrimination. Pearson’s rescinding the title may therefore qualify as an
adverse employment action. Cf. Pegram v. Honeywell, Inc., 361 F.3d 272, 283–84 (5th
Cir. 2004) (holding that “the mere loss of subjective prestige” that came with a job
transfer, without more, failed to qualify as an adverse employment action, but that
where the new position had a “lower earning potential,” a jury could find that the
transfer was an adverse employment action). In short, the loss of such a title with
such opportunities may not be a mere “non-actionable ‘trivial’ harm.” Davis v. Ft.
Bend Cty., 765 F.3d 480, 490–91 (5th Cir. 2014) (quoting Burlington, 548 U.S. at 69).

The Fifth Circuit also includes “demoti[ons]” among adverse employment actions.
McElroy v. PHM Corp., 622 F. App’x 388, 390 (5th Cir. 2015) (quoting Thompson v.
City of Waco, 764 F.3d 500, 503 (5th Cir. 2014)).
109 R. Doc. No. 1, at 10 ¶ 66 (“Evidence Field Champion is a Pearson Peer Leadership
Role is a [sic] prestigious and highly competitive title reserved for high-achieving
sales representatives, whom Pearson is training for leadership roles within the
company. Pearson provides Evidence Field Champions with leadership training and
those selected are considered on the path for promotion to upper-management
roles.”). Pearson itself recognizes that the program is “an award that honors topperforming salespersons with [a $5,000] bonus . . . and training.” R. Doc. No. 20, at
9.
108

26

And that action plausibly was caused by Tedesco’s requests for accommodation,
which occurred a couple months before the action. As Pearson acknowledges, “a fourmonth gap may be sufficient evidence of causation.” Aguillard, 824 F. App’x at 251.
Accordingly, Tedesco has plausibly alleged that her being removed as Evidence Field
Champion constituted retaliation under the ADA. 110
Second, Pearson argues that, even if Tedesco can state a prima facie retaliation
claim, Pearson had “legitimate, non-discriminatory reasons for its decision to
terminate her employment”—namely, that Tedesco was on “indefinite leave.” 111 But
to claim that Tedesco’s leave was indefinite contradicts her well-pleaded factual
allegations that (1) her long-term disability leave was approved through only April
2022, 112 which is not indefinite, and (2) her treating physician reported, in July 2020,
only that Tedesco was “disabled at that time.” 113 And even if her leave was indefinite,
this argument—that Pearson had non-discriminatory reasons for terminating
Tedesco—goes to the McDonnell Douglas burden-shifting framework more properly
analyzed on summary judgment. See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 317
(5th Cir. 2007) (“First [the plaintiff] must establish a prima facie case. Next, [the

Moreover, even if Tedesco’s final termination (rather than her loss of the Evidence
Field Champion title) is the only relevant adverse employment action, Tedesco has
plausibly alleged two independent protected activities for which her termination may
have been retaliatory—both of which were closer temporally to her termination than
were her requests for accommodation: (1) her taking long-term disability leave, which
was approved on May 5, 2020 (three months before her termination), and (2) her
EEOC charge of disability discrimination, which was filed on April 23, 2020. R. Doc.
No. 1, at 14 ¶¶ 96, 98.
111 R. Doc. No. 12-1, at 23–24.
112 R. Doc. No. 1, at 14 ¶ 98.
113 Id. at 15 ¶ 109 (emphasis added).
110

27

defendant] must put forth a legitimate, nondiscriminatory reason for the employment
action. Finally, [the plaintiff] must prove that the proffered reason is pretextual.”)
(internal citations omitted).
Accordingly, the Court will not dismiss Tedesco’s ADA retaliation claim.
C.

Tedesco’s LEDL Claims are Analyzed Identically to her Federal
Claims

Tedesco also brings state-law claims under the LEDL that are parallel to her
ADA claims.

See La. Rev. Stat. §§ 23:323(B)(1)–(2) (proscribing disability

discrimination and failure-to-accommodate). Both Pearson 114 and Tedesco 115 agree
that Louisiana courts apply the same legal analysis under the ADA to analogous
provisions in the LEDL. See Credeur v. Louisiana, 860 F.3d 785, 791 n.3 (5th Cir.
2017); Sutherland v. Edison Chouest Offshore, Inc., No. 19-414, 2020 WL 5436654, at
*1 (E.D. La. Sept. 10, 2020) (Vance, J.) (“[T]he Court’s analyses under the LEDL and
the ADA are the same.”). Accordingly, Tedesco’s LEDL claims that are parallel to her
ADA claims are not dismissed.
The same goes for Tedesco’s LEDL claims that are parallel to her GINA claims.
See La. Rev. Stat. §§ 23:368(B)(1) & (B)(3) (proscribing genetic information
discrimination). Although the parties have not cited, and the Court has not found,
any case holding as much, both Tedesco 116 and Pearson 117 agree that genetic-

R. Doc. No. 12-1, at 24 n.5.
R. Doc. No. 15, at 11.
116 Id. at 7 (“For the same reasons as above, Defendant also violated” the LEDL’s
provisions governing genetic information.).
117 R. Doc. No. 20, at 8 (“Plaintiff’s LEDL claims fail on the same grounds as her GINA
and ADA claims.”).
114
115

28

information-based claims under the LEDL are analyzed identically to GINA claims.
The Court therefore dismisses Tedesco’s genetic-information-based LEDL claims for
the same reasons it dismisses her GINA claims.
D.

Tedesco’s Claim for Breach of the Implied Covenant of Good
Faith and Fair Dealing Fails

Tedesco’s final cause of action alleges that “Pearson failed to engage in good
faith and fair dealing in regard to Ms. Tedesco’s employment contract by forcing her
to take leave and stop working, and then terminating her while she was [sic]
disability leave.” 118 Pearson argues this claim must be dismissed because Tedesco
“cannot show that anything other than Louisiana’s default at-will status applied to
her employment with Pearson,” 119 and “[t]he nature of at-will employment is such
that the employer or the employee may end the employment relationship at any time
for any reason not contrary to the law.” 120
Tedesco accepts that she was an at-will employee, 121 but she argues that even
such “contracts must be performed in good faith.” 122 And she acknowledges that this
duty is violated when an employment contract is breached “with a dishonest or

R. Doc. No. 1, at 23 ¶ 166.
R. Doc. No. 20, at 9.
120 Id. at 10 (citing Clark v. Acco Sys., Inc., 899 So. 2d 783, 786 (La. Ct. App. 2d 2005)).
121 R. Doc. No. 15, at 12 (“Absent a specific contract or agreement establishing a fixed
term of employment, an ‘at-will’ employee is free to quit at any time without liability
to his or her employer and, likewise, may be terminated by the employer at any time,
provided the termination does not violate any statutory or constitutional provision.”
(citing Clark, 899 So. 2d at 783)).
122 Id. (citing La. Civ. C. art. 1983).
118
119

29

morally questionable motive.” 123 Alternatively, Tedesco appears to argue that her
being named as Pearson’s “Evidence Field Champion,” and the early termination of
that title, constituted a separate contract and separate breach. 124 To that, Pearson
rejoins, “[a]t most, the program is an award that honors top-performing salespersons
with bonus compensation and training” 125—a description that comports with
Tedesco’s own account in the complaint. 126 Because the program is merely an award,
Pearson argues, “[i]t is not a contract that alters the participating employee’s at-will
status.” 127 And although that at-will status “may be altered by contract,” it is not
altered by an employer’s “internal policies, procedures, and manuals,” as was the case
here. 128
Pearson is correct, for two reasons.

First, Tedesco’s at-will employment

status—again, a premise that Tedesco does not challenge—meant that she could be
fired by Pearson without cause. “If the employment contract is an at-will agreement,
an employee’s termination need not be accurate, fair, or reasonable, and there does
not have to be any reason at all for termination.” Filson v. Tulane Univ., No. 09-7451,

Id. (quoting Barbe v. A.A. Harmon & Co., 705 So. 2d 1210, 1220 (La. Ct. App. 4th
Cir. 1998)).
124 Id. at 13.
125 R. Doc. No. 20, at 9.
126 R. Doc. No. 1, at 10 ¶ 66 (“Evidence Field Champion is a Pearson Peer Leadership
Role is a [sic] prestigious and highly competitive title reserved for high-achieving
sales representatives, whom Pearson is training for leadership roles within the
company. Pearson provides Evidence Field Champions with leadership training and
those selected are considered on the path for promotion to upper-management
roles.”).
127 R. Doc. No. 20, at 9–10.
128 Id. at 10 (quoting Mix v. Univ. of New Orleans, 609 So. 2d 958, 963 (La. Ct. App.
4th Cir. 1992)) (internal quotations omitted).
123

30

2010 WL 5477189, at *3 (E.D. La. Dec. 29, 2010) (Engelhardt, J.) (citing Clark, 899
So. 2d 783). And “[t]he duty to perform the at-will compensation agreement in good
faith cannot be used to significantly alter the contract by requiring more than the
terms of the agreement.” Nicholas v. Allstate Ins. Co., 739 So. 2d 830, 837 (La. Ct.
App. 2d Cir. 1999), rev’d on other grounds, 765 So. 2d 1017 (La. 2000) (citing Frichter
v. National Life & Accident Ins. Co., 620 F. Supp. 922 (E.D. La. 1985) (Collins,
J.), summarily affirmed, 790 F.2d 891 (5th Cir. 1986)). Accordingly, Pearson could
fire Tedesco for any reason, good or bad, and not breach the at-will employment
contract.
Moreover, “[a] breach of the duty of good faith and fair dealing requires a
breach of contract.” Schaumburg v. State Farm Mut. Auto. Ins., 421 F. App’x 434,
439 (5th Cir. 2011); see also id. (“Bad faith is not the mere breach of faith in not
complying with a contract, but a designed breach of it from some motive of interest or
ill will.” (quoting Fertel v. Brooks, 832 So. 2d 297, 306 n.12 (La. Ct. App. 4th Cir. 2002)
(emphasis added, internal quotations omitted))). Absent a breach of contract, there
is no independent claim for acting in bad faith. Accordingly, where an employment
contract allows for at-will termination, and termination for no (or even an
impermissible) cause does not constitute breach, there is no claim for breach of the
implied covenant of good faith. Id. at 438–39 (finding no breach of an at-will agency
agreement, which precluded a claim for breach of good faith).
Because Tedesco accepts that this was an at-will employment agreement, she
cannot state a claim for breach of that agreement—it may be terminated for any cause

31

without rendering such termination a breach. And since there can be no contractual
breach, she cannot state a claim for breach of the implied covenant of good faith. 129
Second, Tedesco’s being named as “Evidence Field Champion” does not change
the analysis. “Louisiana recognizes a presumption favoring at will employment.”
Stanton v. Tulane Univ. of La., 777 So. 2d 1242, 1250 (La. Ct. App. 4th Cir. 2001).
And Louisiana courts have consistently held that “employee manuals as well as
company policies and procedures do not confer contractual rights upon employees nor
create any exceptions to the ‘employment at will’ doctrine.” Id.; see also id. at 1250–
51 (citing, inter alia, Mix, 609 So. 2d at 963, and holding that an employee handbook
did not constitute an independent employment contract); Aldahir v. Mobil
Exploration & Producing Southeast, Inc., 420 So. 2d 714, 715 (La. Ct. App. 4th Cir.
1982) (concluding that a job performance notice sent to the employee from the
employer, which delineated certain goals that were to be achieved by a fixed date, did
not constitute a promise of employment through that date).
Tedesco alleges only that the Evidence Field Champion role “was renewed for
another 18 months beginning in August 2019 and ending January 2021,” was
reserved for “high-achieving sales representatives,” and entitled her to a stipend and
additional professional development opportunities. 130 Crucially, she does not allege
that such Champions were entitled to additional protections against termination—

Even if Tedesco could state a breach of contract claim, she fails to sufficiently
allege the facts from which it could be reasonably inferred that Pearson acted with
the requisite “dishonest or morally questionable motive.” See Barbe, 705 So. 2d at
1220.
130 R. Doc. No. 1, at 10 ¶¶ 64–66.
129

32

e.g., that they may be terminated only for cause or that their employment is
guaranteed for a fixed term. Accordingly, she has failed to plead sufficient facts to
rebut Louisiana’s presumption favoring at-will employment. At most, the role is a
highly competitive title that comes with a fast-track to upper-management. That
does not render it a contract.

It is more akin to a company’s internal policies

governing and incentivizing advancement, which, for the reasons stated above, does
not constitute an independent employment contract. See Aldahir, 420 So. 2d at 715.
Absent an independent employment contract, the at-will standard described above
applies and precludes her claim.
Nor does Tedesco, assuming arguendo that Pearson violated the ADA, have an
independent claim for breach of the implied covenant of good faith and fair dealing by
virtue of the ADA violation. See, e.g., Brouillette v. Transamerican Ref. Corp., No. 950584, 1995 WL 683869, at *5 (E.D. La. Nov. 11, 1995) (McNamara, J.) (“Terminating
an employee in violation of a statute . . . does not give rise to a breach of contract
claim or a breach of implied covenant of good faith and fair dealing in the employment
at-will context; rather, termination in violation of a statute is actionable only under
the dictates of the statute.”); Pate v. Pontchartrain Partners, LLC, No. 13-6366, 2014
WL 5810521, at *3 (E.D. La. Nov. 7, 2014) (Wilkinson, M.J.) (dismissing breach of
good faith and fair dealing claim but not dismissing Title VII pregnancy
discrimination claim); Ivory v. M.L. Smith, Jr. L.L.C., No. 15-2022, 2015 WL 9074730,
at *4 (W.D. La. Oct. 14, 2015) (“[W]hile those allegations [of racial animus and ill will]
support [the plaintiff’s] claims for relief under state and federal discrimination laws,
33

he does not allege a viable claim for breach of any contractual obligation.”), report and
recommendation adopted, 2015 WL 9009050 (Dec. 15, 2015). 131 Consequently, this
claim must be dismissed.
V.
Accordingly,
IT IS ORDERED that Pearson’s motion to dismiss is GRANTED IN PART
and DENIED IN PART. The motion is GRANTED insofar as the claims raised in
Tedesco’s first and fifth causes of action—her claims under GINA and her claim for
breach of the implied covenant of good faith and fair dealing—are DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the motion is GRANTED insofar as
Tedesco’s fourth cause of action is DISMISSED WITHOUT PREJUDICE IN
PART. It is dismissed as to the state-law, genetic-information-based claims raised
therein, for the same reasons that her first cause of action was dismissed. The fourth
cause of action is not dismissed in all remaining respects.

To be sure, the Louisiana Supreme Court has stated that an employer’s right to
terminate an at-will employee without reason is “tempered by numerous federal and
state laws which proscribe certain reasons for dismissal of an at-will employee.”
Quebedeaux v. Dow Chem. Co., 820 So. 2d 542, 545–46 (La. 2002). This Court does
not read that, however, to provide a separate cause of action for breach of contract or
the duty of good faith and fair dealing whenever a statutory violation occurs. See
Sanchez v. Georgia Gulf Corp., 869 So. 2d 277, 282–83 (La. Ct. App. 1st Cir. 2003)
(concluding that Louisiana’s drug-testing statute, which provides certain rules and
procedures to follow when conducting drug tests in the workplace, “does not provide
for an exception to the employment at-will doctrine”).
131

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IT IS FURTHER ORDERED that the motion is DENIED as it relates to
Tedesco’s second, third, and (in part) fourth causes of action; her ADA disabilitydiscrimination and retaliation claims, as well as any parallel state-law claims, are
not dismissed.
New Orleans, Louisiana, June 4, 2021.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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