Tabor v Madison Parish Hospital Service District et al

Filing 140

MEMORANDUM RULING re 114 MOTION for Summary Judgment filed by Madison Parish Hospital Service District. Signed by Judge Robert G James on 6/13/2017. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
BARBARA TABOR

*

CIVIL ACTION NO. 14-2374

VERSUS

*

JUDGE ROBERT G. JAMES

MADISON PARISH HOSPITAL
SERVICE DISTRICT, ET AL.

*

MAG. JUDGE KAREN L. HAYES

RULING
Pending before the Court is a “Motion for Summary Judgment” [Doc. No. 114] filed by
Defendant Madison Parish Hospital Service District (“MPHSD”). Plaintiff Barbara Tabor (“Tabor”)
opposes the motion in part.
For the following reasons, the Motion for Summary Judgment is GRANTED.
I.

FACTS AND PROCEDURAL HISTORY
Following an investigative audit by the Louisiana Legislative Audit, MPHSD created the

position of Chief Financial Officer (“CFO”). MPHSD Chief Executive Officer (“CEO”) Scott
Barrilleaux (“Barrilleaux”) prepared a list of qualifications to be used in the advertisement for the
position. Listed as “must haves” were a bachelor’s degree in finance or accounting from an
accredited university. Listed among “[p]referred” qualifications was a master’s degree, certified
public accounting, and/or Health Care Financial Management Association credentials.
On November 12, 2012, Tabor emailed her resume to Barrilleaux’s assistant, Chastity
Whitaker (“Whitaker”) for consideration for the position of CFO. The resume detailed that she had
a B.A. in business management from Eckerd College in St. Petersburg, Florida, and was “currently

attending & anticipate[d]” receiving an MBA in Healthcare Administration from the University of
Phoenix. Barrilleaux interviewed Tabor and two other candidates by telephone and then the three
candidates were interviewed in person by Barrilleaux and the Senior Leadership Team for MPHSD.
Following the interviews, Barrilleaux hired Tabor as CFO.
Tabor and MPHSD entered into an Employment Agreement (“the Agreement”) on or about
January 22, 2013. [Doc. No. 114, Exh. H]. The Agreement was prepared by MPHSD’s attorney,
Pamela Breedlove (“Breedlove”). The Agreement provided for an initial term of two (2) years
commencing on February 11, 2013, and an automatic renewal of one (1) year. However, Section 4.2
of the Agreement provided that either party could terminate the Agreement without cause upon thirty
(30) days’ notice. Tabor had the opportunity to read and ask questions about the Agreement before
she signed it.
Tabor began her employment in February 2013. Whitaker obtained a criminal background
check of Tabor after she accepted the CFO position, but Whitaker did not recall it revealing anything
“negative.” [Doc. No. 114, Exh. B, Whitaker Depo., p. 31]. Tabor’s educational credentials were
not checked.
In a signed February 18, 2013 employment application,1 Tabor responded “no” to the
question of whether she had ever been convicted of a crime. She also listed the same educational
credentials on the application as those listed in her resume.2

1

Tabor completed the application after she had been offered the CFO position.

2

Tabor denies stating that she “earned” a B.A. in Business Management on her
application, but the Court finds this denial disingenuous. [Doc. No. 128-3, ¶6]. A review of her
resume [Doc. No. 114, Exh. A, p. 14] and application [Doc. No. 114, Exh. D, Tabor Depo.,
attachment] clearly indicate that Tabor had already obtained a B.A., when she had not. The
resume states that she is “currently attending & anticipate[s]” an MBA from the University of
2

As CFO, Tabor report to Barrilleaux. Her duties included the preparation of financial reports
for the CEO and the Board of Commissioners (“the Board”), which governs MPHSD. She attended
Board meetings for the purposes of planning and providing the financial reports.
Commissioner Thomas Bartholomew (“Bartholomew”), who has a background in finance
and banking had concerns about her reports.
During the last week in May or the first week in June 2013, Tabor met with Board Chairman
T.J. Williams (“Williams”) at his office, so he could sign MPHSD checks. He raised concerns
about the amounts being paid to contractors, vendors, and legal counsel. Williams and Tabor also
discussed issues with Barrilleaux’s work performance. Williams sought Tabor’s input and ask to
her to put these concerns in a letter to be presented to the Board.
On June 6, 2013, Tabor drafted a“Letter of Concern” in which she made multiple allegations
against Barrilleaux. [Doc. No. 114, Exh. K]. She presented the letter to the Board before its June
11, 2013 meeting. Tabor described the letter as presenting her own concerns and those of other
employees. Williams had known of some of the concerns, but Tabor made the following new
allegations:
•

The Interim HIM Director Kelley Chaney helped Barrilleaux’s wife, Brandy,
take a coding examination;

•

Brandy Barrilleaux used a MPHSD computer to study for and take her coding
examination and also took possession of a coding reference book;

•

Barrilleaux asked a hospital employee to watch his children while he and his
wife attended a doctor’s appointment in the clinic;

Phoenix, but there is no such qualification with regard to her B.A. Likewise, on the application
under the heading “Degree or Certificate,” she wrote the word “Bachelors” without any
qualification. No reasonable juror would read Tabor’s resume and application and conclude that
she had not already obtained a B.A.
3

•

Barrilleaux asked a hospital employee to pick up his wife’s prescription at a
pharmacy;

•

Barrilleaux watched a golf tournament on a television in his office;

•

Barrilleaux purchased steaks and other food items to cook at his home for a dinner
with hospital consultants, and submitted the expenses after MPHSD’s counsel,
Breedlove, told him they were reimbursable;

•

Barrilleaux told Tabor that he wanted to hire third party CPA Bobby Miller
to review hospital billings for the past year; and

•

Barrilleaux yelled at Tabor and told her that he had the authority to terminate
her employment.

[Doc. No. 114, Exhibit D, pp. 146-149]. During the meeting, the Board voted to place Barrilleaux
on administrative leave while it investigated the concerns raised. Barrilleaux responded to the
allegations through his attorney.
While Barrilleaux was on administrative leave, Williams served as acting CEO.
The Board appointed attorney Joy Jackson (“Jackson”) to investigate the allegations. She
did so and presented her findings to the Board in an executive session during the July 15, 2013 Board
meeting.
She also issued a written advisory opinion. [Doc. No. 114, Exh. L]. In that opinion, Jackson
detailed the allegations against Barrilleaux and offered an opinion as to each allegation, as well as
making some additional findings. She found that many of his actions were inappropriate and in
violation of his contract, and she recommended a reprimand on certain issues if he returned to his
position. With regard to his verbal agreement with a consultant, she noted that such agreements
should be in writing and signed because Louisiana Constitutional Article 7, Section 14, prohibits
state entities from “donat[ing]” money. She explained that “[w]hen the funds of the hospital are
4

committed without a written executed contract there may be the potential that public funds are being
donated in direct violation of the Louisiana State Constitution. [Therefore,] the Louisiana Legislative
Auditor recommends that all contracts involving public funds be placed in writing.” However,
Jackson did not find, specifically, that Barrilleaux or MPHSD violated state law.
In the same report, Jackson also raised concerns about Tabor. She was concerned that Tabor
had deceived and manipulated Kelley Chaney (“Chaney”), the Interim HIM Director, into giving an
affidavit about her interactions with Brandy Barrilleaux. She noted that Tabor had worked to
undermine Barrilleaux.
After receiving her advisory opinion and hearing from Jackson in an executive session, the
Board held some discussion, but then voted to reinstate Barrilleaux.3
Barrilleaux returned to work on July 22, 2013. On that day, Barrilleaux instructed MPHSD
employee, Tracy Baur, to follow Tabor, allegedly to ensure that she did not destroy any hospital
property. At one point, Tabor tried to close her office door, and Bauer blocked the door with his
foot, allegedly forcing Tabor into a wall.4 Another employee, Ben Moore (“Moore’), also followed
Tabor around that day.

Some time around 4:00 p.m., Tabor contacted the Tallulah Police

Department to complain about Bauer and Moore. A report was taken, but no charges were filed.
This same day, July 22, 2013, Tabor left to attend an out-of-town conference.
On July 29, 2013, Louisiana Attorney General Buddy Caldwell (“Caldwell”) appeared at a

3

An initial motion to reinstate Barrilleaux had not been seconded. [Doc. No. 128-2]. One
of the Commissioners raised concerns about a state ethics investigation into Barrilleaux’s actions
while employed at a hospital in Homer. After being assured by Jackson that the current vote did
not address that issue, the Board then voted to reinstate Barrilleaux.
4

Tabor has abandoned her claims for assault and battery, but the Court provides these
facts for a full context of the background of the case.
5

MPHSD Board meeting and offered information about Tabor’s background, including past
convictions for criminal offenses and the misrepresentation of her educational credentials on her
MPHSD application.5 On that day, Barrilleaux notified Tabor’s then-attorney, Jill Craft (“Craft”),
via a faxed letter that Tabor was being placed on administrative leave effective immediately. In the
letter he stated that Craft would be contacted about scheduling a hearing. Craft responded requesting
a pre-termination hearing.
On July 31, 2013, Barrilleaux terminated Tabor, again notifying her counsel by letter that
MPHSD was exercising its rights under Section 4.2 of the Agreement and that Tabor was not entitled
to a hearing.
When her plane landed on her return from the conference, Tabor was notified that she was
terminated. She did not return to the hospital.
Tabor was paid for an additional thirty (30) days after her receipt of the letter. When he was
deposed, Barrilleaux testified that he terminated Tabor for a combination of things: “the whole
undermining, the lies, the deceit, the poor job performance. . .” [Doc. No. 114, Exh. A, Barrilleaux
Depo., p. 43].
5

Tabor disputes this fact, asserting that the witnesses could not remember Caldwell’s
statements. Tabor is correct that Commissioner Calvin Washington could not remember. [Doc.
No. 114, Exh. N, Washington Depo., pp. 43-45]. The minutes do not state that Caldwell
discussed Tabor’s educational credentials. [Doc. No. 114, Exh. N, Minutes Attached]. However,
Whitaker was present at the meeting and recalled that Caldwell discussed Tabor’s educational
credentials. [Doc. No. 114, Exh. B, Whitaker Depo., pp. 34-35]. Barrilleax also testified that he
was at the meeting when Caldwell “talked about some–I think that’s when he–that might have
been when he mentioned some of her background information around her education or work
history or something or how many places she’s lived or whatever period of time.” [Doc. No. 114,
Exh. A, Barrilleaux Depo., p. 41]. Although the evidence indicates that Caldwell and his office
continued to investigate Tabor after her termination, Tabor offers no evidence to dispute
Barrilleaux’s testimony that he was aware of these issues before he terminated her. See [Doc.
No. 114, Exh. A, Barrilleaux Depo., p. 76].
6

Tabor originally brought this lawsuit against MPHSD; Caldwell in his official capacity as
Attorney General; Williams, Johnny Ford (“Ford”), Sandra Smith (“Smith”), and Bartholomew, the
individual commissioners of the Board; and Barrilleaux in his official capacity as CEO of MPHSD.6
Tabor asserted claims for (1) breach of contract; (2) defamation; (3) deprivation of civil rights under
42 U.S.C. § 1983; (4) intentional infliction of emotional distress; (5) assault and battery; (6) violation
of the Louisiana Whistleblower Statute, LA. REV. STAT. § 23:967; and (7) attorney’s fees and
miscellaneous fees. Tabor also sought compensatory and special damages, comprised of back pay,
benefits, reinstatement, mental anguish, pain and suffering, and lost wages.
In response to Tabor’s suit, Williams, through his surviving spouse, sought dismissal of the
claims against him. The Court adopted the Report and Recommendation of the Magistrate Judge
and found that a deceased person lacked the capacity to be sued. On April 13, 2015, the Court
dismissed Tabor’s claims against this Defendant. [Doc. No. 28].
Caldwell also moved for dismissal of the claims against him asserting immunity under the
Eleventh Amendment. The Court agreed with the finding of the Magistrate Judge that the Court
lacked jurisdiction over Caldwell. On October 30, 2015, the Court entered Judgment [Doc. No. 66]
dismissing the claims against Caldwell.
The remaining individual Defendants-- Ford, Smith, Bartholomew, and Barrilleaux-- moved
for judgment on the pleadings.

On February 5, 2016, the Court adopted the Report and

Recommendation of the Magistrate Judge, granted the motion for judgment on the pleadings, and
dismissed the claims against these Defendants as well. [Doc. No. 87].
The case has proceeded since that time with MPHSD as the sole remaining Defendant.
6

Barrilleaux is no longer CEO.
7

Tabor’s deposition was taken on April 18, 2016, and she invoked her Fifth Amendment privilege
against self-incrimination in response to questions about her educational background.
On March 26, 2014, a true bill issued, charging Tabor with the crimes of (1) theft by means
of fraudulent conduct, practices, or representations of $1,500 or more from MPHSD, in violation of
Louisiana Revised Statute 14:67, and (2) false swearing for purpose of violating the public health
or safety, in violation of 14:126.1. Trial is set on these charges for November 13, 2017.
On April 10, 2017, MPHSD filed the instant Motion for Summary Judgment on all of
Tabor’s claims. On May 16, 2017, Tabor filed a response [Doc. No. 128], abandoning her claims
of defamation, intentional infliction of emotional distress, and assault and battery, but opposing
summary judgment with regard to the breach of contract, civil rights, and whistleblower claims. On
May 30, 2017, MPHSD filed a reply [Doc. No. 131]. The motion is fully briefed, and the Court is
now ready to rule.
II.

LAW AND ANALYSIS
A.

Standard of Review

Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary judgment
is sought. The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The
moving party bears the initial burden of informing the court of the basis for its motion by identifying
portions of the record which highlight the absence of genuine issues of material fact. Topalian v.
Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting
that a fact cannot be . . . disputed must support the assertion by . . . citing to particular parts of
8

materials in the record . . .). 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 (1986). A dispute about a material fact is “genuine” if the evidence is such that
a reasonable fact finder could render a verdict for the nonmoving party. Id.
B.

Abandoned Claims

Among others, Tabor asserted claims of defamation, intentional infliction of emotional
distress, assault and battery. MPHSD moved for summary judgment on these claims. In response,
Tabor states that she has “abandon[ed]” these causes of action. [Doc. No. 128, pp. 5-6].
Accordingly, the Court finds that Tabor does not oppose dismissal of the claims. MPHSD’s Motion
for Summary Judgment on Tabor’s claims of defamation, intentional infliction of emotional distress,
and assault and battery is GRANTED, and these claims will be DISMISSED WITH PREJUDICE.
C.

Breach of Contract

Tabor asserts a claim for breach of contract, contending that MPHSD breached the
Agreement when it terminated her employment without cause. She seeks payment for the balance
due for her contract as a result of MPHSD’s alleged breach. [Doc. 1, ¶ 22].
A federal court sitting in diversity must apply the substantive law of the state. Erie R. Co.
v. Tomkins, 304 U.S. 64 (1938). To prove a breach of contract under Louisiana law, a party must
show that: (1) the obligor had an obligation to perform; (2) the obligor failed to perform; and (3) the
obligee sustained injury as a result of the obligor’s failure to perform. Favrot v. Favrot, No. 1108-09
(La. App. 4 Cir. 2011), 68 So. 3d 1099, 1109.
Interpretation of the contract will often be necessary to determine whether there has been a
breach. The goal of contract interpretation is to discover the common intent of the parties. LA. CIV.
9

CODE art. 2045. The contract language is the starting point for determining that common intent. Six
Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 954 (5th Cir. 2009). “The words of
a contract must be given their generally prevailing meaning.” LA. CIV. CODE art. 2047. When the
words of a contract are clear and explicit and lead to no absurd consequences, no further
interpretation may be made in search of the parties’ intent. LA. CIV. CODE art. 2048.
“[A] contract is ambiguous when, inter alia, its ‘written terms are susceptible to more than
one interpretation,’ when ‘there is uncertainty as to its provisions, or when the parties’ intent cannot
be ascertained from the language used.’” Greenwood 950, L.L.C. v. Chesapeake Louisiana, L.P., 683
F.3d 666, 668 (5th Cir. 2012); McCarroll v. McCarroll, 96–2700 (La.10/21/97), 701 So.2d 1280.
Ambigous provisions are construed against the party who prepared the contract. LA. CIV. CODE ART.
2056.
The interpretation of a contract typically presents a question of law that may be resolved by
summary judgment. Caddo Gas Gathering L.L.C. v. Regency Intrastate LLC, 44-851 (La. App. 2
Cir. 11/12/2009); 26 So.3d 233, 235. However, if a court determines as a matter of law that a
contract is ambiguous, then discerning the parties’ intent becomes, in part, a question of fact, and
summary judgment will rarely be appropriate. See Carter v. BRMAP, 90-1153 (La. App. 1 Cir.
11/22/1991); 591 So.2d 1184, 1188.
“Because there is a presumption that employment is “at will,” the party relying on an alleged
contract of employment for a “fixed term” has the burden of proving that there was a meeting of the
minds on the length of time of employment.” Chandler v. Kenyan, 38,084 (La. App. 2 Cir.
12/19/03), 862 So. 2d 1182, 1184-85 (citing Brodhead v. Board of Trustees for State Colleges and
Universities, 588 So.2d 748 (La.App. 1st Cir.1991), writ denied, 590 So.2d 597 (La.1992). “An
10

action for compensation due under the unexpired term of a “fixed term” employment contract by a
discharged employee” sounds in contract, and, typically, this action “carries with it the right of the
employee to receive all wages or salary due under the contract except in those instances in which he
is discharged for cause.” Id. at 1185 (citation omitted). However, Louisiana courts have recognized
that “an employer and employee may negotiate the terms of an employment contract and agree to any
terms not prohibited by law or public policy.” Amer v. Roberts, 15-0599 (La. App. 1 Cir. 11/09/15),
184 So.3d 123, 132 (citing Read v. Willwoods Community, 14-1475 (La. 3/17/15), 165 So.3d 883,
886-87). Therefore, where an employment contract contains a stated fixed term, but also contains
a provision which authorizes either party to terminate the agreement upon thirty days’ written notice,
“[t]his provision qualifie[s] the term of employment.” Amer, 184 So.3d at 132 (citing Shepard v.
Phycor of Ruston, Inc., 29,181 (La. App. 2 Cir. 5/7/97), 711 So.2d 288, 292). In essence, no matter
the fixed term of the contract, it is reduced to a fixed term of thirty days, since “either party could
terminate without cause by providing the required notice.” Id.
In this case, the Agreement had multiple sections addressing termination. MPHSD contends
that Section 4.2 permitted it to terminate Tabor’s employment upon thirty days’ written notice and
that it lawfully did so. Tabor contends that Section 4.2 conflicts with Sections 4.4 and 4.5. As a
result, the Court should find the Agreement is ambiguous and construe it against the drafter,
MPHSD. The Agreement provides as follows:
4.2

Either party may terminate this Agreement without cause upon written thirty
(30) days’ notice.

...
4.4

Either party may terminate this Agreement if the other party breaches a
material term of this Agreement and such breach is not cured within seven (7)
11

days of receipt of written notice of such breach by the other party. Cause is
defined to include as following:
i.

ii.

CFO’s violation of the patient’s confidentiality rights set forth in this
contract and Louisiana and federal law;

iii.

CFO’s violation of the Nondisclosure of Hospital Information as set
forth in this contract; or

iv.
4.5

Refusal of CFO to regularly report to work and/or diligently perform
the duties set forth herein;

Hospital’s failure to pay compensation as set forth herein.

Hospital may terminate this Agreement immediately upon notice to CFO
upon the occurrence of any of the following, which shall form the basis for
termination of this agreement:
i.

CFO is convicted of a felony;

ii.

CFO dies or becomes disabled and incapable of performing the
services contemplated by this agreement; or

iii.

CFO engages in an act or omission that is harmful to the safe
operation of the Hospital or is a threat to the health, safety, or welfare
of the patients, staff, and/or employees of the Hospital.

[Doc. No. 114, Exh. H, Sections 4.2, 4.4-4.5].
The Court finds that these provisions are clear and unambiguous. Section 4.2 allows
either party to terminate the Agreement “without cause” upon thirty days’ written notice. Section
4.5 allows either party to terminate for “breaches of a material term,” but only after giving the other
party seven days to cure the breach. Section 4.5 allows MPHSD to terminate the Agreement
“immediately” if one of three conditions is met. In this case, in his letter, Barrilleaux invoked
Section 4.2 of the Agreement. Although he asked that Tabor not return to the hospital, he assured
her attorney (and there is no dispute) that she would be paid for thirty additional days, thus providing

12

the thirty days’ written notice contemplated by this section. The Agreement constituted the law
between the parties, and Tabor was terminated in compliance with Section 4.2.
Finally, the Court rejects Tabor’s argument that she suffered a breach of contract because
Barrilleaux fired her without Board approval when the Board had previously voted that it would
make termination decisions. However, this is a red herring. The Agreement was indeed between
Tabor and MPHSD, but the Agreement does not protect her from Barrilleaux’s exercise of his lawful
authority to terminate her employment. The Agreement expressly provides that MPHSD is
“represented herein by Scott Barrilleaux, CEO.” [Doc. No. 114, Exh. H]. Further, under Louisiana
Revised Statute § 46:1057, Barrilleaux had the express “power to establish positions and to make
appointment thereto . . . and transfer, promote, demote, remove and otherwise change the status of
employees of the district.” If the Board disagreed with Barrilleaux’s actions, it could have taken
recourse against him, but his exercise of authority7 did not constitute a breach of the Agreement
between MPHSD and Tabor.
Therefore, the Court finds that Tabor has not presented a genuine issue of material fact for
trial as to whether MPHSD breached the Agreement. She was properly terminated under Section
4.2 of the Agreement. MPHSD’s Motion for Summary Judgment on Tabor’s breach of contract
claim is GRANTED, and this claim is DISMISSED WITH PREJUDICE.
D.

Deprivation of Civil Rights

Tabor also brought suit under 42 U.S.C. § 1983, asserting that her rights under the Due

7

Notably, before Barrilleaux terminated Tabor, Caldwell had appeared at a Board hearing
and advised the Commissioners that Barrilleaux was authorized to make employment decisions.
See [Doc. No. 114, Exh.N; see also La. Att’y Gen. Op. No. 94-359 (Jan. 17, 1995) (the “director
[or CEO] can be considered final arbiter with regard to employee dismissal”).
13

Process Clause of the Fourteenth Amendment were violated when she was terminated without a
hearing.
The Due Process Clause of the Fourteenth Amendment provides in relevant part that no state
“shall deprive any person of life, liberty, or property, without due process of law.” U.S. CONST.
AMEND XIV. To prevail on a § 1983 claim for deprivation of procedural due process, a plaintiff
must first demonstrate the existence of a property interest8 that is protected by the Due Process
Clause. Bishop v. Wood, 426 U.S. 341, 344 (1976). Property interests are not created by the
Constitution, but are created and defined by rights under state law that support claims of entitlement
to those benefits. Board of Regents v. Roth, 408 U.S. 564, 577 (1972); see also Bishop, 426 U.S. at
344; Wallace v. Shreve Memorial Library, 97 F.3d 746, 748 (5th Cir. 1996). Property interests “stem
from independent sources such as state statutes, local ordinances, existing rules, contractual
provisions or mutually explicit understandings.” Blackburn v. City of Marshall, 42 F.3d 925, 936-37
(5th Cir. 1995) (citing Perry v. Sindermann, 408 U.S. 593, 599-601 (1972)); see also Roth, 408 U.S.
at 571-72, 577. A property interest is more than “an abstract need or desire,” or a “unilateral
expectation,” but instead is a “legitimate claim of entitlement.” Perry, 408 U.S. at 602.
In this case, Tabor claims that she had a property interest in her continued employment and
was, therefore, entitled to a due process hearing. However, as the Court determined in its ruling on
her breach of contract claim, Tabor’s fixed term of employment of two years was subject to the
qualifying provision that either party could terminate the Agreement with thirty days’ notice. Thus,
Tabor had no legitimate claim of entitlement to a term of employment of two years. She was, in fact,
paid for thirty days of employment after her notification. Without a property interest to protect,
8

Tabor does not allege that she was deprived of a liberty interest.
14

Tabor’s Due Process claim fails as well. Accordingly, MPHSD’s Motion for Summary Judgment
on this claim is also GRANTED, and the claim will be dismissed with prejudice.
E.

Whistleblower Statute

Finally, Tabor claims that MPHSD violated La. Rev. Stat. § 23:967, Louisiana’s
Whistleblower Statute, which provides:
A.

An employer shall not take reprisal against an employee who in good faith, and after
advising the employer of the violation of law:
(1)

Discloses or threatens to disclose a workplace act or practice that is in
violation of state law.

(2)

Provides information to or testifies before any public body conducting an
investigation, hearing, or inquiry into any violation of law.

(3)

Objects to or refuses to participate in an employment act or practice
that is in violation of law.

LA. REV. STAT. § 23:967(A). The statute further states that an employee aggrieved by a practice
prohibited by subsection A may bring an action for damages against her employer. See LA. REV.
STAT. § 23:967(B).
“While the Louisiana Supreme Court has not interpreted this statute, there is consensus that
a plaintiff is required to prove the employer committed an actual violation of statute law, not just a
good faith belief that a violation has occurred.” Brown v. ICF International, Civil Action No. 07931-RET, 2011 WL 5548962 at *9 (M.D. La. Nov. 15, 2011); see also Accardo v. Louisiana Health
Services & Indemnity Company, 2005-2377 (La.App. 1 Cir. 6/21/06), 943 So.2d 381, 383, 387
(expressing concerns about “the chilling effect that this requirement will have on the reporting by
an employee of illegal acts,” but finding that it is “compelled to conclude that the Louisiana
Whistleblower Statute, La. R.S. 23:967, requires an employee to prove an actual violation of state
15

law in order to prevail on the merits of the case.”). As the Louisiana Fourth Circuit Court of Appeals
explained in Hale v. Touro Infirmary, 04-0003 (La. App. 4 Cir. 11/3/04), 886 So.2d 1210, writ
denied, 05-0103 (La. 3/24/05), 896 So.2d 1036, “[t]he first subsection detailing under what
circumstances an employer may not take “reprisals” clearly states that the employee must be aware
of a violation of state law. . . Although the language of the statute is inconsistent, the interpretation
that is supported by the structure and that fits best into the framework of the statute is one that holds
the statute to its most specific terms, i.e., violations of state law only.” Id. at 1216 (emphasis added)
(footnotes omitted);9 see also Beard v. Seacoast Electronics, Inc., No. 2006-CA-1244 (La. App. 4
Cir. 01/24/2007), 951 So.2d 1168, 1170 (Treating Hale as “binding precedent on this court.”).
Therefore, to meet her burden, a plaintiff under the Whistleblower Statute must show that “(1) the
defendant violated state law; (2) she informed defendant of the violation; (3) she refused to

9

In a previous ruling, this Court considered the issue of whether a plaintiff under the
Whistleblower Statute must allege a violation of state, rather than federal, law. The Court
observed:
Under Erie, this Court must attempt to discern how the Louisiana Supreme Court
would rule on this issue. The only state appellate court to address the issue has
held consistently that the statute applies to violations of state law only. While the
Fourth Circuit’s decisions are not binding, the Court finds them to be persuasive.
Though this Court certainly does not condone a violation of any law, the
Whistleblower Act does not provide Chenevert with a cause of action for her
alleged reports of violations of federal law, specifically Medicare regulations or
the Stark Law.
Chenevert v. CHRISTUS Continuing Care, Civil Action No. 12-3096, [Doc. No. 51, p. 27] (W.D.
La. Oct. 21, 2015). Thus, to the extent that Tabor raises allegations that could be construed as
violations of federal law, those alleged violations do not support her claim under the
Whistleblower Statute.
16

participate in the violation or threatened to disclose the practice10; and (4) she was fired as a result
of her refusal or threat.” Brown, 2011 WL 5548962 at *9.
Tabor cannot meet her burden. Tabor’s only “whistleblower” action was to prepare and
present her Letter of Concern about Barrilleaux to the Board. The Board’s response to her Letter of
Concern was not reprisal, but to place Barrilleaux on administrative leave and to engage outside
counsel to conduct an investigation of the allegations against him. During that time, Tabor remained
in her position as CFO.
When outside counsel, Jackson, concluded her investigation, she offered no legal opinion that
MPHSD had violated a state law. It was her legal opinion that many of Barrilleaux’s actions violated
his own contract, but she did not conclude that Barrilleaux, or MPHSD, committed any state law
violations. She pointed out that his failure to obtain a written agreement with a consultant “exposed”
MPHSD “to potential liabilities” under Article 7, Section 14 of the Louisiana Constitution, which
prohibits donation of state funds. [Doc. No. 114, Exh. L, p. 4]. She explained that “[w]hen funds
of the hospital are committed without a written executed contract there may be potential that public
funds are being donated,” and, therefore, the Louisiana Legislative Auditor “recommends that all
contracts involving public funds be placed in writing.” Id. However, even with this conclusion, she
did not find an actual violation of state law. She certainly did not find that MPHSD had authorized
Barrilleaux’s conduct.
While Tabor summarily concludes that her complaints about Barrilleaux implicated Article
7, Section 14 of the Louisiana Constitution and Louisiana Revised Statutes §§ 14:67,

10

There is no allegation in this case that Tabor is proceeding under the public testimony
prong of the Whistleblower Statute.
17

14:133,14:1111-1121, 42:1163, and 42:1169, such summary allegations are not enough evidence to
avoid summary judgment. Indeed, she does not even explain how these statutes were violated by
Barrilleaux or MPHSD. See Encalarde v. New Orleans Ctr. for Creative Arts/Riverfront, 2014-2430
(La. 2/13/15), 158 So. 3d 826, reh'g denied, 2014-2430 (La. 3/27/15), 161 So. 3d 651 (“In order to
bring an action under La. R.S. 23:967, the employee must establish the employer engaged in
workplace conduct constituting an actual violation of state law.”); Richardson v. Axion Logistics,
L.L.C., 780 F.3d 304, 306 (5th Cir. 2015) (citing Fondren v. Greater New Orleans Expressway
Comm’n, 03-1383 (La. App. 5 Cir. 4/27/04), 871 So.2d 688, 691) (“To state a claim, Richardson first
had to allege that Axion, rather than simply its employees, violated state law.”). While the Court is
cognizant that Barrilleaux, as CEO, may act as the hospital’s agent, there is no evidence in this case
that Barrilleaux committed an actual violation of state law, or that MPHSD implicitly or explicitly
authorized an actual violation of state law.
Further, even if Tabor could establish that Barrilleaux’s actions constituted a violation of
state law attributable to Barrilleaux, she has not shown that she, thereafter, refused to participate in
the violation or threatened to disclose the violative practice. Her only action was to draft and present
the Letter of Concern itself. She does not present evidence that, either before or after the Jackson
investigation, she threatened to tell anyone about these alleged violations or that she was asked to
and refused to participate in illegal conduct.
Finally, the Court finds that she has not raised a genuine issue of material fact that she was
terminated in reprisal for such a threat or refusal. Indeed, rather than reprisal, when Tabor expressed
her concerns, the Board acted immediately to place Barrilleaux on administrative leave and to
investigate with outside counsel. Tabor was terminated by Barrilleaux for “the whole undermining,
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the lies, the deceit, the poor job performance”11 only after then-Attorney General Caldwell appeared
at a MPHSD Board meeting and offered information about Tabor’s background, including past
convictions for criminal offenses and the misrepresentation of her educational credentials on her
MPHSD application. MPHSD’s Motion for Summary Judgment on Tabor’s whistleblower claim
is also GRANTED, and this claim is DISMISSED WITH PREJUDICE.
III.

CONCLUSION
For the foregoing reasons, MPHSD’s Motion for Summary Judgment [Doc. No. 114] is

GRANTED, and Tabor’s claims will be DISMISSED WITH PREJUDICE.
MONROE, LOUISIANA, this 13th day of June, 2017.

11

[Doc. No. 114, Exh. A, Barrilleaux Depo., p. 43].
19