Hardison v. Skinner et al

Filing 66

MEMORANDUM RULING granting 41 Motion for Summary Judgment; denying 46 Motion to Strike. IT IS FURTHER ORDERED that Plaintiff's claims asserted in the Complaint 1 are DISMISSED WITH PREJUDICE. Signed by Judge David C Joseph on 9/25/2020. (crt,Roaix, G)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
GWENDOLYN ANTEE HARDISON

CIVIL ACTION NO. 1:18-CV-00119

VERSUS

JUDGE DAVID C. JOSEPH

DALE SKINNER, ET AL

MAGISTRATE JUDGE JOSEPH
PEREZ-MONTES
MEMORANDUM RULING

Pending before the Court are a Motion for Summary Judgment [Doc. 41] filed
by Defendants, the Natchitoches Parish School Board (“NPSB”) and Dale Skinner
(“Skinner”), and a Motion to Strike Declaration of Linda Page (the “Motion to Strike”)
[Doc. 46] filed by Plaintiff, Gwendolyn Antee Hardison (“Hardison”). For reasons
which follow, Defendants’ Motion for Summary Judgment is GRANTED. The Motion
to Strike is DENIED.
BACKGROUND
Hardison, an African American female, was employed by the NPSB as the
Director of Federal Programs from November 13, 2003 until January 27, 2016 [Doc.
47-2 ¶ 2]. In this position, Hardison supervised the administration of various federal
programs in Natchitoches Parish, including the Migrant Education Program (“MEP”)
[Doc. 1 ¶ 5].
Every three years, the Louisiana Department of Education (“LDOE”) engages
independent third-party consultants to interview families receiving financial aid
through the MEP in order to ensure that the recipients satisfy the program’s
eligibility requirements [Doc. 41-1 ¶ 6]. In April of 2015, the LDOE’s review of MEP
1

recipient families in Natchitoches Parish revealed a high number of ineligible
families receiving migrant assistance “due to the use of tactics and interview
practices intended to qualify otherwise ineligible families, such as falsifying qualified
work activities, using dates for ineligible moves and forging parent/guardian
signatures” [Doc. 41-1 ¶¶ 7-8]. Consequently, the LDOE informed the School Board
that it would conduct an audit of the NPSB’s MEP records for the 2013-2014 and
2014-2015 school years [Doc. 41-4]. The audit revealed that over 60 percent of the
families receiving financial aid were ineligible [Doc. 41-6 p.4], ultimately requiring
the NPSB to reimburse the LDOE a total of $79,842.41 [Doc 41-1 ¶ 21].
On August 10, 2015, Skinner, the superintendent of the NPSB, placed
Hardison on administrative leave with full pay and benefits pending completion of
the investigation into mismanagement of the MEP [Doc. 47-2 ¶ 24]. Defendants
allege that Skinner thereafter requested that the LDOE perform a complete audit of
all federal programs under Hardison’s administration in light of the apparent
mismanagement of the MEP program [Doc. 60 ¶ 37]. Following the completion of this
audit, the LDOE informed the NPSB of problems in other federal programs under
Hardison’s supervision [Doc. 41-1 ¶ 31]. On February 8, 2016, after consulting with
legal counsel, Hardison decided to retire and submitted a formal letter of resignation
through her attorney to the NPSB’s Director of Personnel, Linda Page (“Page”) [Doc.
41-3 ¶ 14]. The record does not indicate that Hardison made any allegations of
discrimination at this time.

2

Prior to her placement on administrative leave, Hardison alleges that Skinner
unfavorably treated her in the following manners: (1) he asked her if she was going
to resign or be terminated from employment on at least five occasions; (2) he denied
her the right to participate in internal audits; (3) he prevented her from attending
staff meetings to discuss concerns with federal programs; (4) he failed to grant her
request for additional staff; (5) he yelled at and humiliated her in front of other NPSB
employees; and (6) he prevented her from accessing her work computer and
communicating with other NPSB employees [Doc. 47-1 p.6-7]. Hardison alleges that
other similarly situated non-minority employees did not experience such unfavorable
treatment [Id.].
Hardison initiated this action on January 31, 2018, to recover for racial and
gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) 1
and Louisiana’s Employment Discrimination Law (“LEDL”) 2 [Doc. 1]. She further
seeks recovery under 42 U.S.C. § 1983 (“§ 1983”) and Louisiana’s Teacher Tenure
Law 3 on the ground that Defendants constructively discharged her without due
process of law [Id.]. In addition, Hardison asserts claims under Louisiana state law
for intentional infliction of emotional distress and defamation [Id.].
Defendants filed this Motion for Summary Judgment, contending that
Hardison’s claims should be dismissed with prejudice. In support of their Motion,
Defendants submitted the

declarations of Linda

1

42 U.S.C. § 2000e, et seq.

2

Louisiana Revised Statutes 23:301, et seq.

3

Louisiana Revised Statutes 17:441, et seq.

3

Page [Doc.

41-3] and

Superintendent Dale Skinner [Doc. 60]. In response, Hardison filed an Opposition
[Doc. 47] supported by her own declaration [Doc. 47-3]. Additionally, Hardison filed
the Motion to Strike, asserting that Page lacks personal knowledge with respect to
many statements made in her declaration.
PLAINTIFF’S MOTION TO STRIKE
The Court will first address Hardison’s Motion to Strike. Hardison moves the
Court to strike substantial portions of Page’s declaration based primarily on her
perception that Page lacks personal knowledge regarding the subject matter asserted.
Rule 56(c)(2) of the Federal Rules of Civil Procedure permits a party to object to
summary judgment evidence when the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence. 4 See Lee v.
Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017). (“[T]he new
rule allows a party to object ‘that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible as evidence.’”); Cutting Underwater
Technologies USA, Inc. v. Eerie U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012)
(“Prior to December 1, 2010, the proper method by which to attack an affidavit was
by filing a motion to strike.”). Accordingly, the Court treats the pending Motion to
Strike as an objection to the relevant portions of the affidavit.
Rule 56 allows a party to use an affidavit to support or oppose a motion for
summary judgment. See Fed.R.Civ.P. 56(c)(1)(A). Such affidavits, however, “must

See also Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendments (“There is no
need to make a separate motion to strike. If the case goes to trial, failure to challenge
admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility
at trial.”).

4

4

be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant ... is competent to testify on the matters stated.” Id. 56(c)(4).
The Fifth Circuit has held that an official title alone is sufficient to indicate a basis
of personal knowledge when that title clearly identifies the official’s sphere of
responsibility and the facts stated in the affidavit are within that sphere. Cutting
Underwater Technologies, 671 F.3d at 516 (quoting Rutledge v. Liab. Ins. Indus., 487
F.Supp. 5, 7 (W.D. La. 1979)).
In her declaration, Page articulates her job duties as Director of Personnel and
demonstrates a direct involvement in the contested matters.

Hardison has not

provided any compelling reasons or evidence for the Court to disregard Page’s
testimony.

Therefore, the Court overrules Hardison’s objections and gives the

statements made in Page’s declaration the weight they are due.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A.

Summary Judgment Standard
Summary judgment is appropriate when, viewing the evidence in the light

most favorable to the non-movant, the court determines “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). A fact is “material” if proof of its existence or nonexistence
would affect the outcome of the lawsuit under applicable law in the case. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A
dispute of material fact is ‘‘genuine’’ if the evidence would allow a reasonable jury to
find in favor of the non-movant. Id. “[A] party seeking summary judgment always
5

bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The motion for
summary judgment should be granted if the non-moving party cannot produce
sufficient competent evidence to support an essential element of its claim. Condrey
v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005).
“In an employment discrimination case, [the Fifth Circuit] focus[es] on whether
a genuine issue exists as to whether the defendant intentionally discriminated
against the plaintiff.” LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 447 (5th Cir.
1996).

Unsubstantiated assertions, conclusory allegations, and speculation are

insufficient to satisfy the plaintiff’s burden. Grimes v. Texas Dept. Of Mental Health
and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). In response to a motion
for summary judgment, it is therefore incumbent upon the non-moving party to
present evidence – not just conjecture and speculation – that the defendant
discriminated against the plaintiff on the basis of the protected characteristic in
question. Id.
B.

Title VII and LEDL Claims for Race and Gender Discrimination
Based on the alleged manners in which Skinner unfavorably treated her prior

to her resignation, Hardison asserts that Defendants discriminated against her due
to her race and gender in violation of Title VII and LEDL. Both Title VII and LEDL

6

prohibit employers from discriminating based on “race, color, religion, sex or national
origin.” 42 U.S.C. § 2000e–2(a)(1); La. Rev. Stat. Ann. § 23:332. As Title VII and
LEDL share the same scope, claims under LEDL are analyzed under the Title VII
framework and jurisprudential precedent. See DeCorte v. Jordan, 497 F.3d 433, 437
(5th Cir. 2007).
When there is no direct evidence of discrimination, as in this case, courts apply
the burden-shifting test established by McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to determine whether an employer
is liable for employment discrimination under Title VII. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 142; 120 S.Ct. 2097, 2106; 147 L.Ed.2d 105
(2000) (McDonnell Douglas and subsequent decisions have “established an allocation
of the burden of production and an order for the presentation of proof in ...
discriminatory-treatment cases.”). First, the plaintiff must establish a prima facie
case of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds,
the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason
for its actions. Id. Finally, if the employer offers such a justification, the burden
shifts back to the plaintiff, who can then attempt to demonstrate that the defendant’s
proffered reason is merely a pretext for discrimination. Id. at 804. Ultimately, the
burden of persuasion that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff. Black v. Pan Am. Labs., L.L.C., 646
F.3d 254, 259 (5th Cir. 2011) (“The employer’s burden is one of production, not
persuasion, and does not involve a credibility assessment.”).

7

i.

Prima Facie Case

A plaintiff can establish a prima facie case of employment discrimination by
proving the following: (1) he is a member of a protected class; (2) he was qualified for
the position at issue; (3) he was the subject of an adverse employment action; and (4)
he was treated less favorably because of his membership in that protected class than
were other similarly situated employees who were not members of the protected class,
under nearly identical circumstances. Paske v. Fitzgerald, 785 F.3d 977, 984–85 (5th
Cir. 2015) (citing McDonnell Douglas, 411 U.S. at 802).
Defendants only dispute Hardison’s ability to establish the third element,
contending that Hardison’s prima facie case fails because she suffered no adverse
employment action. Hardison maintains that she suffered an adverse employment
action by virtue of (1) material changes in job duties and (2) a constructive discharge
from employment.
a. Material Changes in Job Duties
With respect to her first argument, Hardison claims that the denial of her
ability to participate in internal audits, attend staff meetings regarding federal
programs, and hire additional staff, as well as her placement on administrative leave,
materially changed her job duties so as to constitute an adverse employment action.
The Court disagrees.
For Title VII discrimination claims, an adverse employment action implicates
an “ultimate employment decision,” such as hiring, firing, demoting, promoting,
granting leave, and compensating. McCoy v. City of Shreveport, 492 F.3d 551, 560

8

(5th Cir. 2007); Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir. 2007); Pegram
v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). The mere loss of some job
responsibilities does not constitute an adverse employment action. Thompson v. City
of Waco, Texas, 764 F.3d 500, 504 (5th Cir. 2014).
Defendants argue that the scope of an “ultimate employment decision” as
contemplated by the Fifth Circuit does not encompass trivial decisions pertaining to
participation in internal audits, attendance at staff meetings, and additional staff
requests. Hardison attempts to rebut this argument by relying upon several cases
wherein the Fifth Circuit held an adverse employment action occurred when the
plaintiff lost some job responsibilities after being transferred or demoted. 5 The Court
finds these cases distinguishable from the present action. Although Hardison may
have experienced a change in some job responsibilities, this change did not occur in
the context of a transfer, demotion, or reassignment. Rather, Hardison retained her
position as Director of Personnel until her resignation and has not presented any
evidence of a material change that rises to the level of an ultimate employment
decision.
Regarding Hardison’s administrative leave, Defendants cite to two cases for
the proposition that administrative leave is not an adverse employment action:
McCoy v. City of Shreveport and Breaux v. City of Garland. In McCoy, the Fifth
Circuit affirmed the district court’s holding that “placing [the plaintiff] on paid leave

See Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir. 2014); Alvaredo v. Tex.
Rangers, 492 F.3d 605 (5th Cir. 2007); Pegram v. Honeywell, Inc., 361 F.3d 272 (5th Cir. 2004);
Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757 (5th Cir. 2001); Forsyth v. City of Dall., 91
F.3d 769 (5th Cir. 1996).

5

9

– whether administrative or sick – was not an adverse employment action.” 492 F.3d
at 559. Likewise, the Fifth Circuit held in Breaux that the placement of a police
officer on paid administrative leave was not adverse employment action. 205 F.3d
150, 158 (5th Cir. 2000). Pursuant to Fifth Circuit precedent, the Court concludes
that Hardison’s placement on paid administrative leave does not constitute an
adverse employment action.
b. Constructive Discharge
In addition, Hardison argues that her voluntary retirement masked a
constructive discharge, which courts recognize as an adverse employment action
under certain circumstances. Hardison bases this argument on the alleged multiple
occasions that Skinner asked her if she was going to retire or be terminated and on
Skinner’s alleged harassment of her.

Specifically, Hardison claims that she

experienced severe harassment and humiliation when Skinner disrupted one of her
meetings and, on another occasion, kicked her out of a federal programs meeting [Doc
47-1 p. 2-4].
A constructive discharge occurs when the employer renders working conditions
“so intolerable that a reasonable employee would feel compelled to resign.” Stover v.
Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008) (quoting Brown v.
Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)). In determining whether a
reasonable employee would feel compelled to resign, the court considers the following
factors:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities;
(4) reassignment to menial or degrading work; (5) badgering,

10

harassment, or humiliation by the employer calculated to encourage the
employee’s resignation; or (6) offers of early retirement that would make
the employee worse off whether the offer were accepted or not.
Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 338 (5th Cir. 2014).
Defendants argue that Hardison’s unsubstantiated allegations of harassment
and threats of termination do not meet the standard for constructive discharge. The
Court agrees. Even construing these six factors in a light most favorable to Hardison,
she has failed to demonstrate that her employment conditions were so objectively
intolerable that a reasonable employee would have felt compelled to resign. During
her leave, Hardison was not demoted, and her salary and benefits remained
unchanged. She received a writing from the NPSB indicating that her administrative
leave would only last until resolution of the investigation into MEP mismanagement.
However, Hardison resigned before the resolution of Defendants’ investigation.
Notably, Hardison states in her Complaint that she sought counsel before
deciding to resign [Doc. 1 ¶ 26]. After consultation regarding her circumstances and
options, her attorney advised her to “go back to work for two weeks and then retire.”
[Id.]. The record does not indicate that the letter of resignation drafted by Hardison’s
attorney contained any allegations of discrimination, harassment, or humiliation—
undermining Hardison’s subsequent claim that she resigned because of this type of
conduct. 6

6
As would be expected, Plaintiffs alleging constructive discharge often express allegations
of discrimination, harassment, and humiliation to their employers prior to or in their letters of
resignation. See, e.g., Walker v. Thompson, 214 F.3d 615, 622 (5th Cir. 2000) (“[Plaintiff]
contacted an attorney…regarding the racial discrimination and harassment she perceived…[Her
attorney] sent [Plaintiff’s employer] a letter that summarized [Plaintiff’s] complaints…and made
it clear that [Plaintiff] did not want to resign or take legal action but instead wanted the illegal

11

Additionally, other than Skinner allegedly disrupting one of her meetings and
asking her to leave a federal programs meeting, Hardison has otherwise failed to set
forth specific instances of harassment that rendered her work environment
objectively intolerable. Accordingly, the Court concludes that there is no genuine
issue concerning Hardison’s voluntary resignation. Due to Hardison’s inability to
establish a prima facie case of race and gender discrimination, the Court dismisses
Hardison’s Title VII and LEDL claims with prejudice.
ii.

Employer’s Legitimate, Non-discriminatory Reason

Even assuming arguendo that Hardison could establish a prima facie case of
race and gender discrimination, summary judgment is nonetheless appropriate
because Hardison failed to create a genuine issue of pretext.
Defendants submit the declarations of Linda Page [Doc. 41-3] and Defendant
Dale Skinner [Doc. 60] along with multiple exhibits evidencing their communications
with the LDOE to demonstrate that any alleged adverse employment action was
made in connection with the LDOE’s investigation into MEP discrepancies. This
evidence indicates that Hardison was placed on administrative leave only after the
LDOE’s independent audit revealed discrepancies in the management, oversight, and
operations of the MEP and a need for the NPSB to reimburse the LDOE almost
$80,000. Considering this, the Court finds that investigation into misconduct that

conduct to cease.”); Rayborn v. Bossier Par. Sch. Sys., 198 F.Supp.3d 747, 756 (W.D. La. 2016),
aff’d sub nom., Rayborn v. Bossier Par. Sch. Sys., 881 F.3d 409 (5th Cir. 2018) (Plaintiff’s letter of
resignation “contained allegations of…retaliation, harassment, and humiliation”); Dhillon v.
Lincare Inc. of Delaware, CIV.A. 06-1822, 2008 WL 2920259, at *3 (W.D. La. June 19, 2008)
(“[Plaintiff] typed a letter of resignation…to the Human Resources Department, which set forth
her complaints of harassment”).

12

had taken place in a federal program under Hardison’s supervision is a legitimate,
non-discriminatory reason for placing her on administrative leave.
The burden then shifts to Hardison to present evidence that the Defendants’
non-discriminatory reason is a pretext for race and gender discrimination.

To

establish pretext, the plaintiff must present evidence rebutting each of the
nondiscriminatory reasons the employer produces. Haire v. Bd. of Sup’rs of Louisiana
State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013). A plaintiff may
establish pretext by showing that her employer’s justification is false or that a
discriminatory motive more likely motivated her employer’s decision, such as through
evidence of disparate treatment. Id. In order to survive a motion for summary
judgment, a plaintiff must produce substantial evidence of pretext.

Auguster v.

Vermilion Parish School Board, 249 F.3d 400, 402–403 (5th Cir. 2001) (emphasis
added).
Hardison asserts that Defendants’ justification is false because she was not
responsible for the discrepancies revealed in the MEP independent audit and any
mismanagement did not fall within the scope of her job duties. Rather, she maintains
that the LDOE is responsible for training interviewers of prospective MEP families
with respect to techniques and eligibility requirements. However, Hardison does not
present any evidence regarding Defendants’ knowledge of the extent of her
involvement. Other than her own unsubstantiated testimony denying responsibility
for the revealed mismanagement, Hardison has not offered any evidence from which
a jury could infer that Defendants’ decision to place her on administrative leave was

13

for a reason other than to investigate problems with her supervision of the NPSB’s
federal programs department.
Significantly, even if the Plaintiff was blameless in the performance of her job
duties, this Court “cannot protect [employees] … from erroneous or even arbitrary
personnel decisions, but only from decisions which are unlawfully motivated.”
Braymiller v. Lowe’s Home Centers Inc., 325 Fed.Appx. 311, 315 (5th Cir. 2009);
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988); Johnson v.
Acosta, CIV.A. 10-1756, 2011 WL 4381706, at *13 (E.D. La. Sept. 20, 2011). Because
Hardison failed to present substantial evidence of pretext, 7 there is not a genuine
issue as to whether Skinner’s decision to place Hardison on administrative leave was
a pretext for racial and gender discrimination. Summary judgment, therefore, is
appropriate.
C.

Violations of § 1983 and Louisiana’s Teacher Tenure Law
In order to prevail in a civil rights action under § 1983, the plaintiff must prove

by a preponderance of the evidence that the defendant, acting under color of state
law, deprived the plaintiff of a right secured by the United States Constitution, or a
federal statute, or both. Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003). Hardison
contends that Defendants violated her due process rights under the Fourteenth
Amendment 8 of the United States Constitution because she was not afforded the

Hardison does not argue that her race or gender was a motivating factor in Defendants’
decision to place her on administrative leave pursuant to the modified McDonnell Douglas
analysis. She only presents arguments as to pretext.

7

The Fourteenth Amendment guarantees that no state shall “deprive any person of life,
liberty or property, without due process of the law.” U.S. Const. Amend. XIV, § 1.

8

14

protections for tenured teachers provided in La. R.S. 17:442, the “Louisiana’s Teacher
Tenure Law,” prior to her alleged constructive discharge. Defendants, on the other
hand, move for summary judgment on the ground that Hardison’s voluntary
retirement renders her due process claims moot.
To establish a due process claim, the plaintiff must show that she was deprived
of a constitutionally protected liberty or property interest. Giles v. Shaw Sch. Dist.,
655 Fed.Appx. 998, 1003 (5th Cir. 2016) (citing Wells v. Hico Indep. Sch. Dist., 736
F.2d 243, 251 (5th Cir. 1984)). “State law controls the analysis of whether [the
plaintiff] has a property interest in his employment sufficient to entitle him to due
process protection.” McDonald v. City of Corinth, Tex., 102 F.3d 152, 155 (5th Cir.
1996).
The Fifth Circuit has held that tenured teachers under Louisiana’s Teacher
Tenure Law have a constitutionally protected property interest in continued
employment. See Franceski v. Plaquemines Par. Sch. Bd., 772 F.2d 197, 199 (5th Cir.
1985) (“It is true that [the plaintiff], as a tenured teacher, had a constitutionally
protected property interest in continued employment.”). Defendants do not dispute
that Hardison is a tenured teacher under Louisiana’s Teacher Tenure Law. Thus,
she enjoyed a constitutionally protected property interest in continued employment
and was entitled to the following protections prior to her resignation.
Louisiana’s Teacher Tenure Law provides, in relevant part, the following
protections to certain tenured employees:
A teacher with tenure shall not be disciplined except upon written and
signed charges by the superintendent or his designee of poor

15

performance, willful neglect of duty, incompetency, dishonesty,
immorality, or of being a member of or contributing to any group,
organization, movement, or corporation that is by law or injunction
prohibited from operating in the state of Louisiana, and then only if
furnished with a copy of such written charges and given the opportunity
to respond. The teacher shall have ten calendar days from written notice
of the charges to respond, in person or in writing.
La. Rev. Stat. Ann. § 17:443. “Discipline” is defined as “suspension without pay,
reduction in pay, or involuntary demotion or dismissal.”

La. Rev. Stat. Ann. §

17:441(2).
Because “discipline” as defined in the statute does not include administrative
leave, Defendants were not obligated to provide notice and an opportunity to respond
prior to placing Hardison on leave. However, Hardison maintains that her alleged
constructive discharge constitutes an “involuntary dismissal” and that she was
deprived of these statutory protections when Defendants failed to provide written
notice of the charges against her and an opportunity to respond. The Court finds
that, for the reasons articulated in Part B, supra, Hardison did not suffer a
constructive discharge. Accordingly, the Court dismisses with prejudice Hardison’s
claims for due process violations under § 1983 and Louisiana’s Teacher Tenure Law.
D.

Intentional Infliction of Emotional Distress
Defendants further seek dismissal of Hardison’s claims for intentional

infliction of emotional distress (“IIED”).

Under Louisiana law, a plaintiff must

establish three elements to recover for IIED: “(1) that the conduct of the defendant
was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff
was severe; and (3) that the defendant desired to inflict severe emotional distress or

16

knew that severe emotional distress would be certain or substantially certain to
result from his conduct.” Rayborn v. Bossier Par. Sch. Bd., 881 F.3d 409, 419 (5th
Cir. 2018) (quoting White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991)).
In a workplace setting, the distress suffered by the employee must be “more
than a reasonable person could be expected to endure” due to conduct of a nature “so
outrageous in character, and so extreme in degree, as to go beyond all bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Id. (citing Nicholas v. Allstate Ins. Co., 756 20.2d 1017, 1028, 1999-2522
(La. 8/31/00)). Recovery for IIED in an employment context is generally limited to
“cases involving a pattern of deliberate, repeated harassment over a period of time.”
Smith v. Amedisys Inc., 298 F.3d 434, 449 (5th Cir. 2002) (citing White, 585 So.2d at
1209).
Plaintiff bases her IIED claim on the following conduct: “[Hardison] was under
close, intense, and constant scrutiny, subjected to disciplinary action and
continuously harassed and told, at least on five occasions that she must resign or be
terminated” [Doc 47-1].

This conduct does not rise to the level of severity

contemplated by Louisiana jurisprudence.

Accordingly, the Court finds that

Hardison has failed to show conduct that was extreme, outrageous, or more than a
reasonable person could be expected to endure. Hardison’s claim for Intentional
Infliction of Emotional Distress is dismissed with prejudice.

17

E.

Defamation
Finally, Defendants seek dismissal of Hardison’s defamation claim. To prevail

on a defamation action in Louisiana, a plaintiff must prove the following four
elements: “(1) a false and defamatory statement concerning another; (2) an
unprivileged publication to a third party; (3) fault (negligence or greater) on the part
of the publisher; and (4) resulting injury.” Costello v. Hardy, 03-1146, p. 11 (La.
1/21/04), 864 So. 2d 129, 139. These elements necessarily require a plaintiff to prove
that the defendant acted with actual “malice or other fault” in publishing “a false
statement with defamatory words which caused plaintiff damages.” Sassone v. Elder,
626 So .2d 345, 350 (La.10/18/93).
Defendants contend that Hardison cannot establish a defamation claim
because any alleged statements made are conditionally privileged.

In support,

Defendants claim that their allegations in the pleadings were made in good faith
under a reasonable belief that they were true, as Hardison served as the director of a
program under investigation by the LDOE. Hardison, to the contrary, argues that
Defendants lacked good faith because she was not responsible for the MEP
discrepancies.
The key question is whether Defendants lacked a reasonable belief in the truth
of any statements related to Hardison’s role in problems associated with the MEP
and her supervision of the NPSB’s federal programs. Hardison’s actual involvement
in the mismanagement is immaterial. 9
Additionally, there is precedent under Louisiana law that, “[a]n employer's
communication regarding a subject in which it has an interest or a duty is not considered

9

18

The evidence in the record, consisting of communications from the LDOE to
the NPSB, gave Defendants more than a reasonable belief that mismanagement
occurred under Hardison’s supervision.

The Court finds that Defendants have

demonstrated that any allegedly defamatory statements against the Plaintiff are
privileged. Accordingly, Plaintiff’s claims of defamation are dismissed with prejudice.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that:
1) Plaintiff’s Motion to Strike is DENIED; and
2) Defendants’ Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims asserted in the Complaint
[Doc. 1] are DISMISSED WITH PREJUDICE.
THUS DONE AND SIGNED in Chambers on this 25th day of September, 2020.

DAVID C. JOSEPH
UNITED STATES DISTRICT JUDGE

published when made in good faith.” Heflin v. Sabine Ass'n of Retarded Citizens, 96-782 (La. App.
3 Cir. 12/26/96), 685 So. 2d 665, 667.

19