Herster et al v. Board of Supervisors of Louisiana State University et al

Filing 102

RULING : The plaintiff's 54 motion for partial summary judgment is DENIED, the School of Art Defendant's 62 motion for summary judgment is GRANTED, the HRM Defendant's 60 motion for summary judgment is DENIED with respect to retaliation under the FMLA and GRANTED in all other respects, and LSU's 61 motion for summary judgment is GRANTED in part with respect to FMLA retaliation, the Equal Pay Act, and the Title VII sex discrimination claim regarding the hiring of Ostrenko for the tenure-track position and DENIED in part with respect to Title VII claims concerning harassment, disparate pay, and events being outside the scope of the charge, Louisiana employment discrimination claims, spoliation, and claims under the Louisiana Whistleblower Act. Plaintiff Herster's 93 Motion for Leave to File Sur-Reply is DENIED. Signed by Judge James J. Brady on 12/8/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MARGARET HERSTER AND
SCOTT SULLIVAN
CIVIL ACTION
VERSUS
NO. 13-139-JJB
BOARD OF SUPERVISORS OF LOUISIANA
STATE UNIVERSITY, ET AL.
RULING ON MOTIONS FOR SUMMARY JUDGMENT, PARTIAL SUMMARY
JUDGMENT, AND LEAVE TO FILE SUR-REPLY
This matter is before the court on a motion for partial summary judgment filed by
plaintiffs Margaret Herster (Herster) and Scott Sullivan (Sullivan) (Doc. 54) and motions for
summary judgment filed by all defendants (Docs. 60, 61, and 62). Defendants Board of
Supervisors of the Louisiana State University and Agricultural and Mechanical College (LSU),
Rod Parker (Parker), Ken Carpenter (Carpenter), A.G. Monaco (Monaco), Jennifer Normand
(Normand), Mimi Ruebsamen (Ruebsamen), and Kimberly Arp (Arp) filed an opposition (Doc.
72) to plaintiffs’ motion for partial summary judgment, and plaintiffs then filed a reply. (Doc.
75). Defendants Monaco, Normand, and Rubsamen, all LSU human resources employees (HRM
Defendants), filed a motion for summary judgment (Doc. 60) as a group. LSU filed its own
summary judgment motion (Doc. 61), and defendants Arp, Carpenter, and Parker (School of Art
Defendants) filed their own motion for summary judgment (Doc. 62) as a group. Plaintiffs filed a
combined opposition (Doc. 76), and each set of defendants filed a reply (Docs. 89, 90, and 91)
addressing the arguments relevant to their cases. Plaintiffs then filed motion for leave to file a

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sur-reply (Doc. 93), and all defendants filed an opposition (Doc. 94). Oral argument is not
necessary.
Background
The following facts are not in dispute. Plaintiff Herster was an employee at LSU and held
various positions in the School of Art until 2012, when the school did not renew her contract.
The LSU Law Center hired Herster’s husband, plaintiff Sullivan, when the main campus hired
Herster; Sullivan remains a professor at the LSU Law Center.
While at LSU, Herster complained to several individuals about harassment. She alleged
repeated sexual harassment and sex-based discrimination by officials in the School of Art,
including Carpenter. In 2011, Herster began suffering physical and mental health issues.
Eventually, she filed an EEOC charge asserting sex discrimination and sexual harassment.
Around December 11, 2011, the EEOC delivered the notice of charge to LSU. The charge
included information on LSU’s legal obligations to maintain the appropriate records and
materials relevant to the charge.
The sexual harassment and discrimination claims are numerous. Herster detailed many
inappropriate comments by faculty within the School of Art, aimed both at her and female
students. Parker, according to Herster, ignored her concerns that she received inferior
compensation and benefits—for equivalent work—to her male colleagues. She further claims
that Parker not just ignored her concerns but reacted by peppering her with more sexually
discriminatory language. Particularly, Herster alleges that the School of Art passed over her for a
tenure-track position to hire Derick Ostrenko (Ostrenko), a less-qualified1 candidate.
Additionally, Herster asserts that Ostrenko then obtained various benefits and perks that the

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The parties primarily dispute not whether Ostrenko was less qualified but instead whether Herster actually applied
for the position. At issue is whether an e-mail about the position constituted a formal application.

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School of Art denied to her multiple times in the past; she also claims that she was stripped of
her position as “Area Coordinator” in favor of Ostrenko.
Herster’s physical and mental symptoms eventually led her to take leave under the
Family and Medical Leave Act (FMLA) around September 2011. The parties dispute whether
Herster refused to teach any courses, but while she was on FMLA leave, the defendants admit
that she did not receive timely pay. According to Herster, the motives were retaliatory, but the
defendants maintain that it was merely a mistake due to the FMLA’s complex nature. Ultimately,
Herster was paid for the fall semester in November 2011.
During the timeframe of the alleged harassment, Herster learned of misappropriation of
student fees by various individuals at the School of Art, including Parker. Herster complained, in
writing, to several parties on LSU’s campus on February 11, 2012. After investigation, Melissia
Cedotal (Cedotal), LSU’s internal auditor, found merit in Herster’s allegations. Further, Cedotal
recommended evaluating Parker’s performance as director. According to Herster, Parker learned
that she was behind the complaint and retaliated. At some point after the investigation and
Herster’s complaints, the School of Art convened an “evaluation for reappointment” meeting.
Herster challenged this meeting, alleging that Parker should have recused himself as chair. At
this meeting, the committee voted not to reappoint the plaintiff, and the School of Art decided, in
view of the challenge to Parker, to hold a second meeting with Carpenter as chair. There, as in
the first meeting, the committee members voted not to renew Herster’s contract.
At the second meeting, Arp took personal notes. While Herster prepared for her appeal,
she requested these notes from Arp; Arp sought advice from human resources about the request,
and they recommended not providing the notes. Herster claimed that the notes were “public
records” and told Arp he was obligated to turn over the notes. Arp never fulfilled this request,

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however, because LSU’s Human Resources Department interpreted LSU’s internal rules, and
state public records law, to only cover the memorandum Arp wrote after the meeting. Ultimately,
Arp destroyed his notes—it was his practice to maintain them only until LSU made a final
decision.
Standard of Review
A motion for summary judgment should be granted when the pleadings, depositions,
answers to the interrogatories, and admissions on file, together with the affidavits, show that
there is no genuine dispute of material fact and that the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A factual dispute is genuine when “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The admissibility of evidence for summary judgment purposes
conforms to the rules of admissibility at trial. Pegram v. Honeywell, Inc., 361 F.3d 272, 285 (5th
Cir. 2004) (citations omitted). Material facts are those “that might affect the outcome of the suit
under the governing law.” Anderson, 477 U.S. at 248. Whether a fact is material will depend on
the substantive law. Id. When addressing a summary judgment motion, the court must make
reasonable inferences in favor of the non-moving party. Evans v. City of Bishop, 238 F.3d 586,
589 (5th Cir. 2000). If the movant meets his initial burden of showing the absence of a genuine
dispute of material fact, the burden shifts to the nonmovant to identify or produce evidence that
establishes a genuine dispute of material fact. Allen v. Rapides Parish Sch. Bd., 204 F.3d 619,
621 (5th Cir. 2000).
Analysis
I.

Immunity

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The HRM Defendants and School of Art Defedants claim that they are immune from suit
both in their official and individual capacities. (Doc. 60-1 at 9–10). Regarding their official
capacities, the defendants argue that Eleventh Amendment sovereign immunity protects them. Id.
at 9. As to their individual capacities, they argue qualified immunity based on facts specific to
each defendant and set of defendants. Id. at 10–16.
A. Eleventh Amendment Sovereign Immunity
Because of the sovereign immunity guaranteed by the Eleventh Amendment, Section
1983 claims may only be asserted against persons and “neither a State nor its officials acting in
their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 (1989). State employees and officials acting in their official capacities may not be
sued for monetary damages under § 1983, but they may be sued for prospective relief. See
Brennan v. Stewart, 834 F.2d 1248, 1253 (5th Cir. 1988); See also Ex Parte Young, 209 U.S. 123
(1908). Further, under Ex Parte Young, state officials cannot be sued for violations of state law in
federal court. Earles v. State Bd. of Certified Pub. Accountants of Louisiana, 139 F.3d 1033, 1039 (5th
Cir. 1998). Sovereign immunity can also be waived by consent, including through removal by a

defendant. Lapides v. Board of Regents, 535 U.S. 613, 624 (2002).
Prospective relief, under the Eleventh Amendment, is limited to situations where the
claimant has a protected interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564
(1972). Protected interests are those within the Fourteenth Amendment’s language of “liberty”
and “property.” Id. at 569–70. “Property” includes interests from a variety of independent
sources—not just the federal constitution—such as state law. Paul v. Davis, 424 U.S. 693, 709
(1976) (Internal citations omitted). In the employment context, reinstatement is a proper remedy
for termination, but several courts have made a distinction in situations involving non-renewal of
a contract. See, e.g., Roth, 408 U.S. at 579 (“respondent's ‘property’ interest in employment . . .
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was created and defined by the terms of his appointment.”). In that instance, due to the absence
of a protected interest, reinstatement is only available if the contract is not renewed in retaliation
for exercising First Amendment rights. (Doc. 62-1 at 7, 9–10).
Herster is seeking reinstatement, but both the HRM defendants and School of Art
Defendants maintain that they are entitled to sovereign immunity. Further, Herster asserts a state
law claim of spoliation against both the HRM and School of Art Defendants, and they claim
sovereign immunity also protects them from this claim.
i. Removal and Consent
In her opposition, Herster claims that the defendants waived the immunity based on
voluntary removal to federal court. (Doc. 77 at 18–19). The case was removed, but neither group
of defendants—including any of the individuals within either group—had been served by this
time; LSU removed the case at a time when only it had been served. (See Docs. 1, 6–11); (Docs.
89 at 11, 90 at 13). Therefore, the other defendants did not waive sovereign immunity, and
plaintiffs must overcome it through a different route.
ii. Other arguments
a. HRM Defendants
The HRM defendants note that although Herster seeks reinstatement, they are unable to
provide such relief. (Doc. 60-1 at 9–10). According to the HRM defendants, “[n]either Mimi
Ruebsamen, nor Jennifer Normand, nor A.G. Monaco have any ability to reinstate a faculty
member who has not been reappointed by her [c]ollege.” Id at 9. To support their argument, the
defendants offered three affidavits, one each from Ruebsamen, Normand, and Monaco, along
with attached exhibits to each affidavit. (Docs. 60-3, 60-4, 60-5). Plaintiffs, opting to rest on the
consent argument, presented no contrary evidence or facts. Therefore, the HRM Defendants are

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protected by sovereign immunity from suit against them in their official capacity, and summary
judgment on this claim should be granted.
The HRM Defendants also seek summary judgment on Herster’s spoliation claim based
on sovereign immunity. Again, Herster only offers the consent argument, while the defendants
point out that sovereign immunity extends to state law claims brought in federal court. Because
the consent argument fails, summary judgment in favor of the HRM Defendants should be
granted on this issue.
b. School of Art Defendants
The School of Art Defendants argue that unlike the cases where reinstatement is
available, Herster was not terminated; they merely declined to renew her contract. (Doc. 62-1 at
4). Expiration, unlike termination, does not deprive one of a protected interest because there is no
such interest once the contract expires. Id. at 4–5. In Roth, the Supreme Court noted that a
protected interest in employment is “defined by the terms of” the employment contract and ruled
against a college professor in factually similar circumstances. 408 U.S. at 569. Similarly, in
Wells v. Doland, the Fifth Circuit rejected reinstatement as a remedy for a professor whose
contract was not renewed because the professor lacked an interest in continued employment. 711
F.2d 670, 677 (5th Cir. 1983). A final avenue, retaliation for asserting First Amendment rights2,
is not available according to the School of Art Defendants. (Doc. 62-1 at 8–9). The School of Art
Defendants acknowledge that the Fifth Circuit allowed for reinstatement in a non-reappointment
case, but the Fifth Circuit there focused heavily on the plaintiff’s claims of retaliation for
exercising her First Amendment rights. Warnock v. Pecos County, Tex, 88 F. 3d 341 (5th Cir.
1996). In her complaint, Herster alleges retaliation for her exercise of her First Amendment
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There are several Supreme Court decisions allowing for this, and they, like the Fifth Circuit case, heavily
emphasize the uniqueness of the First Amendment retaliation claim. E.g. Mt. Healthy City Sch. Dist. Bd. Of Educ. v.
Doyle, 429 U.S. 274, 283–84 (1977).

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rights, but the retaliation to which she refers includes only events after the refusal to renew her
contract. (Doc. 1-2 at 52–55). Herster, as with the HRM defendants, stuck to the consent
argument and did not address these issues. The jurisprudence is clear, the School of Art
Defendants have alleged particular facts, and given the lack of a response from Herster, the
Court finds summary judgment on this issue should be granted.
Like the HRM Defendants, the School of Art Defendants seek summary judgment on
Herster’s spoliation claim based on sovereign immunity. Again, Herster only offers the consent
argument, while the defendants point out that sovereign immunity extends to state law claims
brought in federal court. Because the consent argument fails, summary judgment in favor of the
School of Art Defendants should be granted on this issue.
B. Qualified Immunity
Qualified immunity protects government officials—from suit under 42 U.S.C. §1983 and
related statues, including §1985—performing “discretionary duties” when their actions are
reasonable regarding the rights that the official allegedly violated. Good v. Curtis, 601 F.3d 393,
400 (5th Cir. 2010). Essentially, it is a defense available to “all but the plainly incompetent or
those who knowingly violate the law.” Id. (Internal Citations Omitted). The Fifth Circuit uses a
two-part test to evaluate qualified immunity defenses: first, whether the defendant’s alleged
action constitutes a violation of the plaintiff’s constitutional rights, and second, “whether the
defendant’s actions were objectively unreasonable in light of clearly established law at the time
of the conduct in question.” Freeman v. Gore, 483 F.3d 404, 410–11 (5th Cir. 2007).
i.

HRM Defendants
a. Mimi Ruebsamen

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Without addressing whether Herster’s constitutional rights were violated, Ms.
Ruebsamen jumps directly into the second part of the test: she alleges that all of her actions were
in accordance with her job description and thus, not objectively unreasonable. (Doc. 60-1 at 11–
12). Herster does not respond directly to this argument, but she does assert that convening a
faculty review committee on Herster violated LSU’s policy on faculty reviews of Professionals
in Residence. (Doc. 77 at 28). However, Herster misreads this policy. The policy provision
requires a review by the sixth year, but it does not prevent earlier reviews. (Doc. 90-2 at 24–25).
Herster offered no other instances of “objectively unreasonable” actions, and therefore, the Court
finds that summary judgment on this issue should be granted in favor of Mimi Ruebsamen.
b. Jennifer Normand
Normand, like Ruebsamen, focuses on the reasonableness of her actions rather than
Herster’s constitutional rights. According to Normand, she followed the guidelines for her
position and merely performed her job duties. (Doc. 60-1 at 13–15). For example, regarding the
length of the investigation, Normand asserts that the number of complaints by Herster, as well
the complexity of these complaints, means that Normand did not act in an “objectively
unreasonable” manner in conducting the investigation. Id. at 14. Herster gives short shrift to
Normand’s arguments outside of the misinterpretation of LSU’s policy on renewal meetings.
Based on Normand’s evidence and Herster’s lack thereof regarding the reasonableness of
Normand’s actions,3 the Court finds that Normand is entitled to qualified immunity and that
summary judgment should be granted on this issue.
c. A.G. Monaco

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Indeed, most of Normand’s arguments refer to allegations in the complaint, not Herster’s opposition memorandum.
It is important to note here that the Court is ruling on Herster’s failure to submit evidence that the actions were
objectively unreasonable, not on Herster’s submission of evidence that these allegations are factually correct.

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Monaco supervised Ruebsamen and Normand, and his first argument is that because their
actions were not objectively unreasonable, his supervision of their actions was not objectively
unreasonable. (Doc. 60-1 at 15). Regarding banning Herster from campus and locking her out of
her e-mail account, Monaco notes that his position requires him to protect the rights of LSU’s
employees; multiple employees complained to Monaco that Herster was threatening them,
prompting Monaco to take this action. Id. As with Ruebsamen and Normand, Herster offers no
evidence that these acts—even if they constituted a violation of her constitutional rights—were
objectively unreasonable. LSU’s policy on renewals is addressed above, and Herster offers no
other reason that Monaco’s actions are “objectively unreasonable.” Summary judgment on this
issue should be granted in favor of Mr. Monaco.
ii.

School of Art Defendants

As a group, the School of Art Defendants assert that they were not acting in an
“objectively unreasonable” manner because they followed the instructions and advice of the
Human Resources Department, including that of several of the HRM Defendants. (Doc. 62-1 at
15–16). Herster makes several factual allegations, but she offers no reason as to why the School
of Art Defendants’ actions would be “objectively unreasonable.” The Court finds that Herster
has failed to meet her burden to establish a genuine dispute of material fact regarding whether
the School of Art Defendants are entitled to qualified immunity.
II.

Spoliation Claim

Both sides filed motions for summary judgment on the spoliation claim. Therefore, the
Court will address whether summary judgment is appropriate for either the defendants or
Herster.
A. Individual Defendants

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The spoliation claim regarding the individual defendants was addressed in the section4 on
sovereign immunity.
B. LSU
i. Duty to Preserve
Spoliation of evidence is the intentional destruction of evidence to avoid providing it to
an opposing party. Cavier v. Our Lady of the Lake Hospital, Inc., 2012-0560, p. 5 (La. App. 1
Cir. 2012); 112 So.3d 881, 886. For spoliation, the destruction must be intentional. Id. Whether
the party had an obligation to preserve the evidence is central to the spoliation analysis. Id.
Evidence must be preserved when “the need for the evidence in the future” is foreseeable. Id.
Plaintiffs and defendants agree that Arp intentionally put his notes through the shredder;
they dispute whether he had an obligation to preserve those notes. (Doc. 72 at 6–13). Plaintiffs
claim Arp had to preserve the notes for three reasons: first, defendants should have anticipated
litigation; second, LSU’s internal rules require it; and third, Louisiana’s public records law
requires it. (Doc. 54-8 at 13).
In response to the first argument, LSU asserts that it did not have control over Arp’s
notes because they were his personal notes. (Doc. 72 at 7). Forcing him to produce personal
notes would, according to defendants, violate his right to privacy under the Louisiana
constitution. Id. at 8. Regarding the second argument, defendants point out that LSU’s internal
rules exclude “personal papers of faculty . . . documenting their . . . professional activities” from
the definition of public records. Id. As to the third argument, defendants refer to an opinion from
the Louisiana Attorney General—about a public records issue—that indicates “‘there is no
requirement that a supervisor allow an employee to see files that the supervisor keeps for his own

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Sections I.A.ii.a and I.A.ii.b.

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personal reference, assuming the files are not required to be kept by the position he holds and are
not used in the employee’s permanent record.’” Id. at 8–9.
There is a genuine dispute of material fact as to whether the defendants had an obligation
to preserve Arp’s notes. LSU’s defenses hinge on factual determinations about which there is a
genuine dispute. Although Herster interpreted LSU’s policy to require preservation of the notes,
the Human Resources Department felt differently, and Arp’s testimony indicates he destroyed
similar notes before without incident. Therefore, neither side has established the absence of a
genuine dispute of material fact.
ii. Bad Faith
As a genuine dispute of material fact exists concerning LSU and Mr. Arp’s duty to preserve
the notes, discussing Mr. Arp’s bad faith in shredding the notes is unnecessary at this time.
Summary judgment should be denied.
III.

Equal Pay Act Claims

Herster makes several claims under the Equal Pay Act. These claims ensnare all named
defendants, and the factual analysis differs for each group. However, the general rules of the
Equal Pay Act apply to all three groups.
To establish a claim under the equal pay act, a plaintiff must show a “prima facie case of
wage discrimination.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). This requires
four elements: 1) the defendant is an employer that is subject to the Equal Pay Act; 2) the
plaintiff worked “in a position requiring equal skill, effort, and responsibility under similar
working conditions”; and 3) that the defendant paid the plaintiff “less than the employee of the
opposite sex providing the basis for the comparison.” Chance v. Rice University, 984 F.2d 151,
153 (5th Cir. 1993). The burden then shifts to the defendant to show one of the four accepted

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grounds for such a disparity: 1) “a seniority system”; 2) “a merit system”; 3) earning based on
quantity or quality of work; or 4) factors other than sex. Siler-Khodr v. University of Texas
Health Science Center San Antonio, 261 F.3d 542, 546 (5th Cir. 2001). If the defendant
establishes any of these grounds, the plaintiff then must show that the grounds offered is simply
a pretext for sex discrimination. Phillips v. TXU Corp., 195 F. Appx. 221, 224 (5th Cir. 2006).
A. HRM Defendants
The HRM Defendants contend that they are not “employers” under the statute’s
definition. (Doc. 60-1 at 26). Several considerations are relevant to determine if a defendant is an
“employer” for Equal Pay Act purposes, including whether the defendant “1) possessed the
power to hire and fire employees, 2) supervised or controlled employee work schedules or
conditions of employment, 3) determined the method or rate of payment, and 4) maintained
employee records.” Martin v. Spring Break ’83 Productions, LLC, 688 F.3d 247, 251 (5th Cir.
2012). Specifically, the HRM Defendants argue that Ruebsamen’s only hiring-related authority
was to make sure LSU’s policies were followed; she lacked any authority to fire or hire. (Doc.
60-1 at 27). She further lacked any authority related to the final three factors. Id. Normand
similarly only has advisory authority: she can recommend firing an employee based on
appropriate cause and has no authority related to the other three factors. Id. Finally, Monaco
asserts essentially the same arguments: he lacks independent authority regarding all four factors.
Id. at 28. Herster responds to none of these arguments directly, opting only to emphasize that the
HRM Defendants “were aware” of the allegations in January 2011. (Doc. 77 at 30). Even if this
is true, it does not establish that HRM Defendants are employers under the statute. Therefore,
summary judgment in favor of the HRM Defendants on this issue should be granted.
B. School of Art Defendants

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The School of Art Defendants raise two arguments against Herster’s Equal Pay Act
claims: timeliness and that sex was not the basis for any pay disparity. (Doc. 62-1 at 24–26).
i.

Time to Bring Claim

Equal Pay Actions must be commenced within two years of accrual of the cause of action
unless the violation is willful; then the time limit extends to three years. 29 U.S.C. §255(a). A
willful violation includes one due to the “reckless disregard” of the employer. Blackmon v.
Brookshire Grocery Co., 835 F.2d 1135, 1138 (5th Cir. 1988). The School of Art Defendants
claim that during the period before January 11, 2011, Herster was an instructor and actually
received higher pay than the average instructor, including Ostrenko. (Doc. 62-1 at 25–26).
Instructors received $4,000 per class, but Herster made $25,000 for teaching two classes per
semester, or $6,250 per class over the course of an academic year. Id. at 26. Because there was
no actual disparity before this period, then, there could not have been a “willful violation.” Id.
Herster responds by referring to several e-mails about her compensation between various School
of Art Defendants, alleging that they refused “to pay her commensurate with this work.” (Doc.
77 at 32). However, these e-mails do not demonstrate a reckless disregard or intentional refusal
to pay Herster appropriately; indeed they show efforts from the School of Art Defendants to
obtain better compensation5 for Herster with budget cuts looming. (Doc. 76-5 at 15–24).
Therefore, there is no genuine dispute of material fact regarding whether the claims under the
Equal Pay Act prior to January 22, 20116 are time barred.
ii.

Sex as a Basis for Unequal Pay

The School of Art Defendants offer three reasons other than sex as the basis for the pay
disparity. First, they argue that the plaintiffs cannot show that Herster, as a Professional in
5

Parker’s e-mails indicate exhaustion and are perhaps unprofessional, but they indicate no intentional disregard for
the Equal Pay Act; merely a spirited disagreement.
6
This is two years before Herster filed suit initially in state court.

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Residence, had the same duties and responsibilities as Ostrenko, an Assistant Professor. (Doc.
62-1 at 27). Second, according to the School of Art Defendants, the salary for the position was
determined at the time that LSU decided to advertise it; that is, before anyone knew the sex of
the ultimate hire. Id. Third, the School of Art Defendants claim that Herster’s salary of $41,000
was the maximum raise she could receive without approval by the system president after
submission of written reasons. Id. Herster responds that she complained multiple times about her
compensation—even referring to sex as a possible basis for the disparity—and received no
satisfactory answers from the School of Art. (Doc. 77 at 32). Herster asserts that the School of
Art Defendants repeatedly refused to pay her adequately for her contributions, and that this was
based on her sex. Id. However, Herster fails to address any of the three arguments made by the
School of Art Defendants, and although the e-mails she cites indicate both that the School of Art
Defendants recognized she was worth more than her salary and a less-than-amicable attitude
toward her complaints, there are no indications that her sex is the reason. She fails to show any
evidence that her sex is the cause of the animosity, and indeed, the School of Art Defendants
appear to be scheming how they can increase her pay within their administrative parameters.
Herster has failed to establish a genuine dispute of material fact, and consequently, summary
judgment should be granted on this issue in favor of the School of Art Defendants.
C. LSU
The LSU board of supervisors makes the same arguments as the School of Art
Defendants—nearly verbatim—and those are discussed above. For the same reasons that
summary judgment should be granted in favor of the School of Art Defendants, it should be
granted in favor of LSU.
IV.

Title VII Claims

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Herster’s case includes claims that LSU violated Title VII in numerous ways, including
sex discrimination, disparate pay, and hostile work environment. The parties, through their
summary judgment motions, have raised several issues relating to these claims.
A. Time-barred claims
Louisiana is a “deferral state” because The Louisiana Commission on Human Rights can
handle employment discrimination claims. La Rev. Stat. Ann. §51:2231, et seq. In deferral states,
plaintiffs have three hundred days from the alleged discriminatory act to file a charge with the
Equal Employment Opportunity Commission (EEOC). If the charge rests on a “pattern of
conduct,” however, the charge only needs to be filed within three hundred days of one of the acts
constituting the pattern. National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122
(2002). LSU asserts that because Herster filed her EEOC charge in December of 2011, the
earliest actionable conduct would be February 4, 2011, or three hundred days before December
1, 2011. However, Herster’s complaint refers to numerous actions before February 4, including
several in 2010 or 2009; LSU argues that these are time-barred. (Doc. 61-1 at 2–3). Herster
argues that her claims involve a “pattern of conduct,” making the earlier events covered as
several other acts did occur within the three hundred day period. (Doc. 77 at 34). Herster is
correct, as several of her claims, including the hostile work environment claim, involve patterns
of conduct, including events in 2009 and 2010 that grew into further alleged harassment in 2011.
Summary judgment in favor of LSU barring claims based on acts before February 4, 2011 is
inappropriate.
B. Scope of the EEOC Charge
LSU makes two arguments regarding the scope of the EEOC charge. First, it contests that
events before September 1, 2011 and after November 30, 2011, are outside the charge’s scope

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because of the language that Herster used in her factual statement. Second, LSU argues that
Herster’s September 28, 2012 letter to an EEOC employee does not satisfy the requirements of
EEOC charge, making the allegations therein outside of the scope of the original EEOC charge
and thus, not actionable.
i. Scope of Initial Charge
A suit under Title VII is limited to “the scope of the EEOC investigation which could
reasonably grow out of the administrative charge.” Fine v. GAP Chem. Corp., 995 F.2d 576, 578
(5th Cir. 1993). When evaluating the scope of the charge, courts “consider such factors as the
alleged basis for the discrimination, dates of discriminatory acts specified within the charge,
perpetrators of discrimination named in the charge, and any locations at which discrimination is
alleged to have occurred.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002).
The scope of an EEOC charge is construed liberally to protect lay persons who are not wellversed in employment discrimination law. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th
Cir. 1970).
LSU argues that Herster only refers to sex discrimination and retaliation7 between
September 1, 2011 and October 1, 2011 in her factual statement; their emphasis is on the “dates
of discriminatory acts specified” factor. (Doc. 61-1 at 4). They also seek a more narrow
construction of Herster’s charge because her husband is a professor of law, reducing the policy
justification for a broad interpretation. (Doc. 91 at 14). Herster focuses on the principal of
liberally construing the EEOC charge and argues that various events before and after the dates
specified in the complaint “could reasonably grow out of” her EEOC charge. (Doc. 77 at 32–33).
Although Herster’s husband is a lawyer and a professor of law, his specialty is not employment
law, and indeed, the defendants offer no evidence that he had any special expertise or experience
7

Her factual statement refers to harassment up to November 30, 2011, so that claim extends beyond October 1.

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in employment law. Therefore, LSU’s argument that Herster should be denied the liberal
construction fails. Given the wording of Herster’s claim, which states that she was denied
promotion in favor if a man and alleges that complaints to the Human Resources Department
produced no results, it is reasonably foreseeable that the investigation would explore events prior
to the promotion; this would be necessary to evaluate the validity of her claim regarding the basis
for LSU’s choice in promoting Ostrenko over her. Summary judgment on this issue should be
denied.
ii. Amended Charge
An EEOC charge must be “in writing under oath or affirmation.” 42 U.S.C. §2000e-5.
This requirement shields “employers from the disruption and expense of responding to a claim
unless a complainant is serious enough . . . to support it by oath subject to liability for perjury.”
Edelman v. Lynchburg College, 535 U.S. 106, 113 (2002). LSU claims that because Herster’s
“supplemental EEOC charge” was a letter to an EEOC employee that was not verified, it cannot
be considered an EEOC charge. (Doc. 61-1 at 5). Therefore, the allegations within it should not
be actionable because Herster failed to exhaust her administrative remedies concerning these
claims; LSU also points out that they did not get notice of this letter until the discovery stage of
this lawsuit. Id. at 5–6. Herster sticks with the liberal construction argument. (Doc. 77 at 32–33).
Though her charge only covers events before it was filed, it is reasonable to expect that similar
events occurring after the charge would be subject to potential litigation, including the nonrenewal of her contract—the alleged retaliatory action. Therefore, summary judgment seeking
dismissal of claims based on events after Herster filed her initial charge should be denied.
C. Sex Discrimination

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Title VII sex discrimination claims are analyzed under the burden-shifting analysis: the
plaintiff must make out a prima facie case for discrimination, followed by the defendant’s
legitimate, non-discriminatory reason, and then the plaintiff must show that this is a pretext for
discrimination. McDonnell Douglas, Corp. v. Green, 411 U.S. 792 802–04 (1973). A prima facie
case requires that the plaintiff show membership in a protected class, denial of a benefit, and that
an employee not in that protected class received the benefit.
Herster’s sex discrimination claim, or at least the one LSU addresses in its memorandum
in support of summary judgment, is that LSU hired Ostrenko, a less qualified male candidate, for
the tenure-track position. (Doc. 61-1 at 7). LSU argues that Herster cannot establish her claim
because she did not apply for the position. Id. According to LSU, Herster’s claims that she was
unaware of the position do not hold up because the university advertised the position online and
forty-nine applicants managed to find it. Id. at 7–8. Herster counters that she did apply for the
position and points to an e-mail where she expresses interest in the opening. (Doc. 77 at 7, 37).
This, however, does not constitute a formal application, and Herster should have followed the
procedures followed by the forty-nine individuals who did apply. Summary judgment on the sex
discrimination claim for losing the tenure-track position to Ostrenko should be granted.
D. Harassment/Hostile Work Environment
Establishing a claim for harassment under Title VII requires showing five elements;
Herster must show that “1) she is a member of a protected group; 2) she was subjected to
unwelcome harassment; 3) the harassment was based on her membership in a protected class; 4)
the harassment affected a term, condition or privilege of her employment; and 5) her employer
knew or should have known of the harassment and failed to take prompt remedial action.”
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). Several factors are relevant to

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determine if there is a hostile work environment: frequency of the conduct, severity of the
conduct, whether the conduct is “physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee’s work performance.” Id.
LSU refers to its “scope of the charge” argument and attempts to exclude several events alleged
during 2009 and 2010. (Doc. 61-1 at 9). Further, LSU argues that “trailing spouse” is either not
derogatory—as it is a literal term for a spouse who gets hired after the first spouse—not based on
sex—as Parker claims that he used it to refer to both husbands and wives—or both. Id. at 10.
Herster cites numerous instances of purported inappropriate language, including that Parker
indicated Herster should be more submissive, like his wife, and instances where Parker called
Herster a “princess.” (Doc. 61-1 at 9). Even if the Court accepted LSU’s argument—which it
does not—that “trailing spouse” was conclusively not a discriminatory term based on gender,
these instances suffice to create a genuine dispute of material fact on the issue of harassment and
hostile work environment. These may be interpreted as small or minor instances, but they are
frequent; referring to a female employee as a “princess” and secondary to her husband are fairly
severe; and finally, Herster presents evidence that this interfered with her work performance by
severely affecting her mental health. Therefore, summary judgment on this issue should be
denied.
E. Disparate Pay
LSU argues that although Herster’s charge references her starting salary, it makes no
actual allegations of disparate pay. (Doc. 61-1 at 11). According to LSU, they never received
EEOC requests regarding Herster’s salary. Id. Herster responds that though she and Ostrenko
had different titles, they performed sufficiently similar work to create a genuine dispute of
material fact. (Doc. 77 at 35–37). LSU’s argument does not survive the “liberal construction” of

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EEOC charges; that Herster mentioned her salary should be sufficient to put LSU on notice that
an EEOC investigation arising out of the charge might include her pay. Therefore, summary
judgment on this issue should be denied.
V.

Louisiana Employment Discrimination Law

Louisiana’s statutory scheme for employment discrimination is essentially identical,
analytically, to Title VII. Bustamento v. Tucker, 607 So.2d 532, 538 n. 6 (La. 1992). Therefore,
the results are identical to those for Herster’s Title VII claims. First, the claims based on events
prior to December of 2011 are actionable and within the scope of the charge. Second, the letter
purporting to be an “amended EEOC charge” is not sufficient to satisfy the administrative
requirements; this includes retaliation. Third, the harassment and disparate pay claims survive
because there is a genuine dispute of material fact, as detailed in those sections on Title VII,
while the sex discrimination claim based on hiring Ostrenko for the tenure-track position does
not.
VI.

Retaliation
A. Family and Medical Leave Act

Herster also claims that her non-reappointment occurred in retaliation for taking FMLA
leave. (Doc. 60-1 at 29). She asserts these claims against all defendants, and as with the other
claims, the factual analysis differs with each group. However, the basic legal principles of the
FMLA are the same. To establish a claim for retaliation under the FMLA, the plaintiff must first
make a prima facie case that: “1) she was protected under the FMLA; 2) she suffered an adverse
employment decision; and either 3a) that she was treated less favorably than an employee who
had not required leave under the FMLA; or 3b) the adverse decision was made because [s]he
took leave.” Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001). If the

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plaintiff establishes her prima facie case, the defendant must show “a legitimate . . .
nonretaliatory reason for the employment action.” Id. Should the defendant do so, the plaintiff
then “must show by a preponderance of the evidence that reason was a pretext for retaliation.”
Id.
i. HRM Defendants
The HRM Defendants note that the alleged retaliatory action, the nonrenewal, occurred
without their involvement. (Doc. 60-1 at 29). They did not participate in the meeting and did not
vote on Herster’s reappointment. Id. Herster contends that they refused to pay her initially after
her FMLA request and that they are liable for their part in “suggesting” the renewal committee
meeting. (Doc. 77 at 44–45). The HRM Defendants fail to cite any jurisprudence to support their
position, and the Court finds they have failed to meet their burden to show that they are entitled
to judgment as a matter of law. Therefore, summary judgment on this issue should be denied.
ii. School of Art Defendants
The School of Art Defendants assert that Herster’s FMLA leave request did not factor
into the decision and was not discussed at the meeting. (Doc. 62-1 at 30). They refer to the
committee’s written report explaining the reasons for their recommendation; the FMLA is absent
from this report. Id. Herster claims that these justifications are merely a pretext for retaliation,
noting that the meeting convened “only a handful of months later” and that several of the School
of Art Defendants expressed agitation toward Herster for using her FMLA leave. (Doc. 77 at 44–
45). Given the evidence presented, there is no genuine dispute of material fact regarding the
FMLA retaliation claim. Though Herster presents e-mails where the School of Art Defendants
were clearly annoyed with her, there is no connection of this to her use of FMLA leave. Herster
further cites no evidence showing that her FMLA request was discussed at the meeting. She

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submits an affidavit from Sullivan, who claims that Ostrenko told him that the contents of the
report on the meeting are false, but this still does not suffice to show that the FMLA leave was
discussed. Id. at 15. Carpenter’s report included a reference to Herster’s refusal to teach a class,
but this incident occurred in 2009, well before Herster took FMLA leave. (Doc. 90 at 25).
Therefore, summary judgment in favor of the School of Art Defendants is appropriate.
iii. LSU
LSU, as with the Equal Pay Act, argues the same points as the School of Art Defendants.
Herster’s opposition, similarly, addresses all defendants’ arguments together, and she offers no
additional rebuke than that discussed in the subsection on the School of Art Defendants. This
warrants an identical result: there is no genuine dispute of material fact, and summary judgment
should be granted in favor of LSU on the FMLA retaliation claim.
B. Title VII
LSU, here, refers back to the “scope of the charge” argument regarding the letter that
Herster claims is an amended EEOC charge. (Doc. 61-1 at 12). However, as a genuine dispute of
material fact remains, that argument for summary judgment is unpersuasive. Title VII retaliation
requires meeting a familiar three part test: first, the employee must have done some action
protected by Title VII; second, the employee must have suffered an adverse employment action;
and third, the employee must establish a causal connection between the protected activity and the
adverse action. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). Herster met the
first two elements by filing an EEOC charge and through the non-renewal of her contract. (Doc.
61-1 at 12–13). LSU argues that because five months passed between the filing of the charge and
the second, conclusive, faculty meeting on Herster’s non-renewal, no casual relationship can be
established; they compare their case to one out of Texas with similar facts, including a five

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month gap. Patel v. Texas Dept. of Transportation, 462 F. App’x. 493 (5th Cir. 2012).
Regardless of the outcome of that case, given that LSU’s policy for addressing contracts such as
these requires convening faculty meetings, which in turn require gathering a large amount of
materials so that faculty can accurately evaluate the employee, the Court finds that this five
month gap does not suffice to establish no genuine dispute of material fact.
LSU also argues that Arp’s memorandum details the reasons for non-renewal, and none
of these include Herster’s actions related to Title VII. (Doc. 61-1 at 14). These reasons include
that she refused to teach the number of classes expected and that she received poor teaching
evaluations. Id. at 18. Herster points out that Arp admitted that Herster’s EEOC charge came up
at the faculty meeting, even if Arp claims that he “’redirected’ the discussion” rather quickly.
(Doc. 77 at 42). The Court agrees with Herster. Although Arp claims to have refocused
discussion, that the charge was mentioned at all is sufficient basis for a genuine dispute of
material fact. Once the charge is mentioned, the faculty members have it on their mind, and
simply shifting the discussion to other, appropriate matters does not overcome this. Summary
judgment on this issue should be denied.
C. Louisiana Whistleblower Act
Louisiana’s Whistleblower Act forbids retaliation when employee “in good faith, and
after advising the employer of the violation . . ., [d]iscloses or threatens to disclose a workplace
act or practice that is in violation of state law.” La. Rev. Stat. Ann. 23:967(A) (West 2012). The
Act has five elements: “1) a workplace act or practice violates state law, 2) the employee
informed his employer of the violation of state law, 3) the employee disclosed or threatened to
disclose the violation, 4) the employee suffered an adverse employment action, and 5) the

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adverse employment action was suffered as a result of his whistleblowing activity.” (Doc. 61-1 at
16).
LSU contends that there is no genuine dispute of material fact regarding the fifth factor—
causation. Id. Herster points to similar evidence as she did with the FMLA. The Court
determined that summary judgment in favor of LSU was appropriate on the FMLA retaliation
claim because Herster offered insufficient evidence to establish causation. Unlike with the
FMLA, here Herster presents sufficient evidence of a genuine dispute of material fact. LSU
relies, again, on the report from the committee’s meeting, and all of the report’s reasons are
supported by other evidence. Herster notes that many people lost money because of her exposé
on the misuse of fees, and the video reflected particularly poorly on Rod Parker. (Doc. 77 at 11–
12). Further, LSU Internal Auditor Melissa Cedotal recommended that Parker be removed as
Director of the School of Art. Id. at 12. Parker actually presided over the first faculty committee
meeting before the School of Art held a second meeting with Parker recused. Id. at 13–14.
Finally, according to Arp—present at both meetings—Herster’s complaints, like her Title VII
charge, were discussed at both meetings. Id. at 14. Even though Arp indicated that he stressed
those were not the reasons for the meeting and could not be discussed, that Herster’s complaints
about fees came up at all is sufficient to establish a genuine dispute of material fact. Summary
judgment on this issue should be denied.
VII.

Motion for Leave to File Sur-Reply

Herster, after the defendants filed their reply, sought leave to file a sur-reply (Doc. 93).
The defendants oppose this motion, noting that sur-replies are disfavored and that Herster failed
to show any new arguments raised in their reply not already raised in their initial memoranda.
Herster’s memorandum in support focuses on the page number disparity, but as defendants point

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out, she decided to file a combined reply. The Court also agrees that the defendants raised no
new issues in their replies. Therefore, the Motion for Leave to File Sur-Reply should be denied.
CONCLUSION
For the foregoing reasons, the plaintiffs’ motion for partial summary judgment (Doc. 54)
is DENIED, the School of Art Defendants’ motion for summary judgment is GRANTED (Doc.
62), the HRM Defendants’ motion for summary judgment is DENIED with respect to retaliation
under the FMLA and GRANTED (Doc. 60) in all other respects, and LSU’s motion for summary
judgment (Doc. 61) is GRANTED in part with respect to FMLA retaliation, the Equal Pay Act,
and the Title VII sex discrimination claim regarding the hiring of Ostrenko for the tenure-track
position and DENIED in part with respect to Title VII claims concerning harassment, disparate
pay, and events being outside the scope of the charge, Louisiana employment discrimination
claims, spoliation, and claims under the Louisiana Whistleblower Act. Plaintiff Herster’s Motion
for Leave to File Sur-Reply (Doc. 93) is DENIED.

Signed in Baton Rouge, Louisiana, on December 8, 2014.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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