Clay v. Pogue et al

Filing 44

RULING re 38 MOTION for Summary Judgment filed by Frank G Pogue. Signed by Judge Robert G James on 8/5/16. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
SHIRLEY CLAY

CIVIL ACTION NO. 14-2755

VERSUS

JUDGE ROBERT G. JAMES

DR. FRANK POGUE, ET. AL.

MAG. JUDGE JOSEPH PEREZ-MONTEZ
RULING

Plaintiff Shirley A. Clay (“Clay”) brought this suit against Dr. Frank G. Pogue (“Pogue”),
then-acting President of Grambling State University (“Grambling”), in both his individual and
official capacity, and against the Board of Supervisors for the University of Louisiana System for
alleged violations of the Louisiana Whistleblower Statute, LA. REV. STAT. § 23:967, et seq., (“the
LWS”) and federal law. At this point in the litigation, only Clay’s claim against Pogue in his
individual capacity for alleged violations of the LWS remains.
Pending before the Court is Pogue’s Motion for Summary Judgment [Doc. No. 38]. For the
following reasons, the motion is GRANTED, and Clay’s Complaint is DISMISSED WITH
PREJUDICE.
I.

FACTS AND PROCEDURAL HISTORY
Grambling employed Clay from November 1, 2007, through September 30, 2013, as

Endowment, Stewardship, and Planned Giving Coordinator for the Division of Institutional
Advancement (“Endowment Coordinator”). Clay claims that the funding for her position came from
a Title III grant from the United States Department of Education (“DOE”).1 The position was subject
1

The DOE awarded the grant to Grambling, presumably, in accordance with Subchapter
III of the Higher Education Act of 1965. That Act is codified at 20 U.S.C. § 1057, et seq. Of
note, Subchapter B of the Act allows for federal grants to Historically Black Colleges and

to the availability of funds for each fiscal year, which ran from October 1 to September 30. Clay’s
position as Endowment Coordinator was funded for the 2012-2013 year. Pogue points out, however,
that for each year that funding was approved for her position, Clay acknowledged in writing that her
position was at will and subject to the available funding.
In order to receive the funding each year, Grambling was required to submit an application
to the DOE. The grants run in five-year cycles.2 Fiscal year 2013-2014 was the second year of the
five-year cycle which began with the 2012-2013 fiscal year. Grambling submitted the continuing
grant application for fiscal year 2013-2014 in late July of 2013. [Doc. No. 38-9, Tanika Whitley
Declaration]. It did not seek funds for Clay’s position. Id. According to Tanika Whitley (“Whitley”),
then-Acting Executive Director of Title III programs, this was because there was a 5% reduction in
the amount of funds available for the 2013-2014 year due to an ongoing sequestration. The 20132014 application was ultimately approved, presumably by the DOE. Id.
After the application was submitted, but, potentially, before it was approved, on August 19,
2013, Clay wrote a letter to Dr. Sandra Woodley (“Woodley”), then-President of the University of
Louisiana Systems. Clay admitted in her deposition that this letter was her first attempt to alert
officials of perceived improprieties which could sustain a claim under the LWS. The highlights of
the letter include: (1) a charge of incompetent and unprofessional administrators, (2) a complaint that
Pogue failed to appoint competent administrators, (3) a charge that the president was giving raises
to “really personal friends,” (4) a charge that Pogue had not taken proper steps to “advance” the

Universities of certain activities when approved by the Secretary of the DOE. See 20 U.S.C.A. §§
1062, 1063a.
2

It appears that the DOE agreed to provide funding for five-year increments, but the exact
amount of funds awarded was determined on a year-to-year basis.
2

institution forward from a fund-raising perspective, (5) a complaint that Pogue had not met with
those in charge of fund-raising enough, (6) a complaint that Pogue appointed an unqualified
supervisor, (7) a charge that one Debra Johnson did not have the qualifications to lead the fundraising department, and (8) a general complaint that Pogue’s choices and lack of leadership would
be problematic in the future. [Doc. No. 38-6]. Further, in a declaration attached to her memorandum
in opposition to this motion, Clay claims that, before she received notice of her termination on
August 26, 2013, she wrote to the Board of Supervisors for the University of Louisiana System
advising it that Pogue was engaging in fraud related to charitable solicitations. [Doc. No. 40, Exh.
D]. It is unclear whether the letter she is referring to is the August 19, 2013 letter, or, if it is another
letter that is not in the record.
On August 26, 2013, Pogue wrote a letter to Clay informing her that “based on the
recommendation of the Vice President for Finance and Administration/Interim Vice President for
Institutional Advancement, your unclassified at-will employment with [Grambling] will officially
end at the close of business on Monday, September 30, 2013.” [Doc. No. 40, Exh. B].
After receiving Pogue’s letter, Clay wrote again to Dr. Woodley. Clay expressed her belief
that her salary for the next fiscal year had been approved. She claimed that, if her position was
terminated, “funds may be misappropriated or wrongfully allocated in restricted areas other than
advancement.” [Doc. No. 38-7].
Clay next wrote a letter to Pogue on August 29, 2013. In the letter, Clay lamented the fact
that she failed to “speak up” in the past and lobbied Pogue to restore her job. Pogue declined. Clay
apparently remained in her position until September 30, 2013, the conclusion of the 2012-2013 fiscal
year.
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On September 18, 2014, Clay filed this suit against the Board of Supervisors for the
University of Louisiana System and Pogue, alleging that her termination violated 42 U.S.C. §§ 1981
and 1983 and the LWS.
On April 24, 2015, this Court adopted, in part, a report and recommendation [Doc. No. 18]
issued by Magistrate Judge James D. Kirk. Specifically, the claims against the Board of Supervisors
for the University of Louisiana System were dismissed on sovereign immunity grounds. All claims
against Pogue in his official capacity were dismissed. The claims under Sections 1981 and 1983
against Pogue in his individual capacity were dismissed for failure to state a claim. However, this
Court allowed Clay to amend her Complaint to assert a proper claim under the LWS against Pogue
in his individual capacity. On August 7, 2015, Magistrate Judge Kirk issued a second report and
recommendation [Doc. No. 28] which recommended finding the Complaint now stated a claim. This
Court adopted the Report and Recommendation and allowed the suit to proceed.
On May 13, 2016, Pogue filed the instant motion for summary judgment seeking dismissal
of Clay’s remaining claim [Doc. No. 38]. Response memoranda were filed.
II.

LAW AND APPLICATION
A.

Summary Judgment Standard

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.
4

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
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.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving party
to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19
F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the Court must
accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor.
Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence. Thus, Summary Judgment is
appropriate if a reasonable jury could not return a verdict for the nonmoving party.” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)); see also Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994)
(“Testimony based on conjecture or speculation is insufficient to raise an issue of fact to defeat a
summary judgment motion because ‘there is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party. . . . If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.’”).
B.

LWS

Clay’s remaining claim in this litigation falls under the LWS, which provides, in pertinent
part:
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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 LWS defines reprisal to include “firing, layoff, loss of benefits, or any other
discriminatory action the court finds was taken as a result of an action by the employee that is
protected by Subsection A of this Section...” Id. at § 23:967(C)(1).
Louisiana courts look to federal anti-discrimination jurisprudence for guidance when
interpreting the LWS. See Sprull v. City of Baton Rouge, 09-689, 2012 WL 2426793 at *2 (M.D. La.
June 26, 2012). Accordingly, the McDonnell Douglas burden-shifting framework is used to evaluate
the evidence. See Kirmer v. Goodyear Tire & Rubber Co., 538 Fed. App’x 520, 527 (5th Cir.
2013).Under that framework, Clay must first establish a prima facie case.
“In order for a plaintiff to establish a prima facie case of retaliation under [the LWS], he
must show (1) that he engaged in activity protected by the statute; (2) he suffered an adverse
employment action; and (3) a causal connection existed between the activity in which he engaged
and the adverse action.” Bain v. Ga. Gulf Corp., 462 Fed.App’x 431, 433 (5th Cir. 2012) (citations
omitted).
The case law interpreting the LWS has delineated important guidelines for the statute’s

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application. First, the Louisiana Supreme Court has recently endorsed the position uniformly adopted
by the Louisiana appellate courts: only violations of state law–not federal law–can support a cause
of action under the LWS. See Encalarde v. New Orleans Ctr. for Creative Arts/Riverfront, 20142430 (La. 2/13/15); 158 So.2d 826-27; see also Accardo v. La. Health Servs. & Indem. Co., 20052377 (La. App. 1 Cir. 6/21/06); 943 So.2d 381, 387; Barber v. Marine Drilling Mgmt., Inc., No. 011986, 2002 WL 237848 at *10 (E.D. La. Feb. 15, 2002); Wilson v. Tregre, 787 F.3d 322, 326 (5th
Cir. 2015); Wells v. City of Alexandria, No. 03-30750, 2004 WL 909735 at *1 (5th Cir. Apr. 29,
2004).
Second, the Fifth Circuit, interpreting the LWS, has found that the plaintiff must point to a
specific provision of state law which the employer violated. See Ware v. CLECO Power LLC, 90
Fed. App’x. 705 (5th Cir. 2004); Genella v. Renaissance Media, 115 Fed.App’x. 650 (5th Cir. 2004).
Third, according to all Louisiana appellate courts that have considered the issue, the
employer must actually violate state law. See, e.g., Accardo 943 So.2d at 383; Hale, 886 So.2d at
1210, writ denied, 896 So.2d 1036 (La. 3/24/05); Goldsby v. State Dep’t of Corr., 861 So.2d 236
(La. App. 1 Cir/ 11/7/03), writ denied, 0328 870 So.2d 271 (La. 4/8/04), and writ denied, 870 So.2d
271 (La. 4/8/04). Thus, the employee’s good faith belief, which later turns out to be erroneous, that
an employer violated the law does not give rise to a viable cause of action under the LWS. Mabry
v. Andrus, 45, 135 (La. App. 2 Cir. 4/14/10); 34 So.3d 1075, 1081; Ganheart v. Xavier Univ., No.
07-9703, 2009 WL 24227 at *9 (E.D. La. Jan. 2, 2009).
Fourth, although it does not appear that the Louisiana Supreme Court has addressed the issue,
Louisiana appellate courts and federal courts agree that the employer, not a mere co-worker or third
party, must violate state law. See Fondren v. Greater New Orleans Expressway Comm’n, 871 So.2d
7

688, 691 (La. App. 5 Cir. 4/27/04) (citing Puig v. Greater New Orleans Expressway Commission,
772 So.2d 842, 845 (La. App. 5 Cir. 10/31/00), writ denied, 786 So.2d 731 (La. 3/9/01)); see also
Goulas v. LaGreca, 945 F.Supp.2d 693, 703 (E.D. La. 2013) (holding that employee who advised
that co-worker was using drugs on premises did not have an LWS claim), aff’d sub nom. Goulas v.
LaGreca Serv., Inc., 13-30651, 2014 WL 718433 (5th Cir. Feb. 26, 2014).
Finally, Louisiana appellate courts and federal courts that have considered the issue agree that
the employee must have knowledge of the state law violation at the time he advises the employer of
it. Crowe v. Southeast Comm. Health Sys., 10-2838, 2014 WL 1456352 at *6 (E.D. La. Apr. 14,
2014) (citing Hale, 886 So.2d at 1215).
If Clay establishes a prima facie case of retaliation under the LWS, the burden shifts to Pogue
to produce a legitimate, non-retaliatory reason for his actions. If Pogue produces such a reason, the
burden shifts back to Clay to establish that Pogue’s legitimate reason for the adverse employment
action is pretext for a retaliatory motive.
C.

Application to this Case

In this case, Clay cannot establish a causal connection between her allegedly protected
activities and her termination, and, thus, summary judgment is appropriate.3 Pogue produced
3

Because of this finding, the Court does not address Pogue’s alternative arguments that
he, in his individual capacity, is not the appropriate defendant for an LWS claim, and that, even if
he was, Clay did not apprise him (or anyone else) of an actual violation of state law. The Court
notes, however, that many courts have applied the Louisiana Employment Discrimination Law’s
(“LEDL”) definition of employer in LWS cases. See, e.g, English v. Wood Group PSN, Inc., 15568, 2015 WL 5061164 at 10-11 (E.D. La. Aug. 25, 2015); Wilson-Robinson v. Our Lady of the
Lake Reg’l Med. Ctr., Inc., 10-548, 2011 WL 6046984 at *2 (M.D. La. Dec. 6, 2011); Johnson v.
Hosp. Corp. of America, 767 F.Supp.2d 678, 691, n.2 (W.D. La. 2011). That statute focuses on
who or what entity compensates the employee. See LA. REV. STAT. § 23:301, et seq. It seems
clear that Pogue, in his individual capacity, did not compensate Clay. See Pierce v. State, Office
of Legislative Auditor, 2007-0230 (La. App. 1 Cir. 2/8/08), 984 So.2d 61, 67 (finding that, in
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evidence that the decision to terminate Clay’s position was made about a month before Clay wrote
the August 19, 2013 letter to Woodley, which, according to Clay, was her first complaint entitling
her to protection under the LWS. In support of the argument, Pogue introduces the declaration of
Whitley, then-Acting Executive Director of Title III Programs. Whitley states that the decision not
to seek Title III funding for Clay’s position was made on July 24, 2013, when the continuation
application was submitted and almost a month prior to Clay’s first whistleblowing. The actual
application is attached to the declaration. It indicates that no funds were sought for Clay’s position.
Thus, it does not appear that Clay can meet even her minimal burden at the prima facie stage of
establishing a causal connection between the allegedly protected activity and the termination. Even
if the Court were to assume she met that burden, Pogue has produced a legitimate, non-retaliatory
reason for her termination.
Clay responds by attacking the validity of the continuing application, as well as Grambling’s
handling of the situation. First, Clay points out that the application which Pogue introduced into the
record differs from applications in the past which are stamped “approved” and bear the submission
date on the front cover. However, it does not matter when the application was approved: the evidence
shows that the decision to forego funding for Clay’s position was made before the alleged protected
activity.4 Moreover, the lack of submission date does not so impugn the validity of the application
so as to raise an issue for trial. For one thing, the prior applications had been overseen by a different
administrator. The 2013-2014 application was Whitley’s first. Thus, it is unremarkable that

LEDL suit against the Office of the Legislative Auditor, suit against the Legislative Auditor in
his individual capacity was baseless).
4

Incidentally, Whitley also testifies that the continuing application was eventually
approved. Clay has no evidence to the contrary.
9

Whitley’s applications might differ–however slightly–from those of her predecessor. Further, to the
extent Clay speculates that the continuing application attached to Whitley’s declaration is not
authentic, the Court would note that speculation is insufficient to survive summary judgment. See
Lawrence v. Federal Home Loan Mortg. Corp., 808 F.3d 670, 673 (5th Cir. 2015) (quoting Likens
v. Hartford Life & Accident Ins. Co., 688 F.3d 197, 202 (5th Cir. 2012)).
Second, Clay argues that the actual notification of termination failed to indicate that Clay was
terminated for lack of work even though there was the opportunity to check such a box on the form.
The argument is weak, and its relevance is unclear. Grambling claims it terminated Clay because of
budgetary concerns, not a lack of work.
Third, Clay argues that there was “no showing that the 5% reduction in funds for the Title
III program required a reduction in its budget.” [Doc. No. 40. p. 4]. Clay misunderstands her burden
on summary judgment. Once Pogue came forth with evidence that the decision to terminate Clay was
unrelated to any whistleblowing, i.e., there was no causal connection, the impetus shifted to her to
introduce contrary evidence, or to demean Pogue’s evidence so as to raise a factual issue for trial.
Pogue is not required to validate Grambling’s institutional decisions. In effect, what matters is
whether that decision was made prior to the whistleblowing–not whether it was a justified decision
from an administrative or financial standpoint. Similarly, Clay’s admonition that “Defendant has not
proven there was a lack of funding for Clay’s position” fails to persuade. Id. Again, once Pogue
pointed to evidence essentially showing a causal divide between the termination decision and the
allegedly protected activity, Clay was required to introduce conflicting evidence or sufficiently
undermine the credibility of Pogue’s evidence in order to reach the jury. The burden is not on Pogue
to show the wisdom or appropriateness of the decision, only that the decision was not causally
10

connected to any alleged protected activity.
Finally, Clay charges that she did not receive appropriate notice that her funding was being
discontinued in accordance with the “Acknowledgment of Conditions of Grant-Funded Positions”
form which Clay signed to indicate that she understood her employment was subject to available
funding. As Pogue notes, the relevant provision of the form requires notice when the funds are
cancelled in the midst of an “appointment.” [Doc. No. 38-4, p. 15]. In this case, the 2012-2013 cycle
had concluded and the decision to forego funding for the position was made prior to the start of the
2013-2014 cycle. Thus, there was no cancellation in the midst of an appointment and no occasion
for any type of advanced notice. Even if there was, this argument fails to address the only question
at issue: whether the decision to terminate Clay was retaliatory in nature. Because the uncontroverted
evidence shows that the decision was made prior to any protected activity, the Court finds that there
was no reprisal under the LWS. Accordingly, Pogue’s Motion for Summary Judgment is
GRANTED, and Clay’s Complaint is DISMISSED WITH PREJUDICE.
III.

CONCLUSION
For these reasons, Pogue’s Motion for Summary Judgment is GRANTED, and Clay’s

Complaint is DISMISSED WITH PREJUDICE.
MONROE, LOUISIANA, this 5th day of August, 2016.

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