Rayborn v. Bossier Parish Sch. Bd.

• Decision Date: 02 February 2018
• Docket Number: No. 16-30903,16-30903
• Citation: 881 F.3d 409
• Parties: Lori RAYBORN, Plaintiff-Appellant v. BOSSIER PARISH SCHOOL BOARD, erroneously referred to as Bossier Parish School System; Nichole Bourgeois, in her personal and official capacity; Ginger Hughes, in her personal and official capacity; Ace American Insurance Company, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

881 F.3d 409

Lori RAYBORN, Plaintiff-Appellant

v.BOSSIER PARISH SCHOOL BOARD, erroneously referred to as Bossier Parish School System; Nichole Bourgeois, in her personal and official capacity; Ginger Hughes, in her personal and official capacity; Ace American Insurance Company, Defendants-Appellees

No. 16-30903

United States Court of Appeals, Fifth Circuit.

FILED February 2, 2018

Jill Leininger Craft, Esq., Jill Craft, Attorney at Law, L.L.C., Baton Rouge, LA, for Plaintiff–Appellant.

Elmer Gray Noah, II, Hammonds, Sills, Adkins & Guice, L.L.P., Monroe, LA, for Defendants–Appellees.

Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

We decide whether the district court erred when it granted summary judgment against Appellant Lori Rayborn on her claims of (1) retaliation under Louisiana state law and the First Amendment, (2) deprivation of her liberty and reputational interests under the Fourteenth Amendment, and (3) intentional infliction of emotional distress. We AFFIRM.

FACTS AND PROCEEDINGS

Rayborn worked as a nurse at Parkway High School ("Parkway") within the Bossier Parish School System ("BPSS"). Her children attended Parkway, and for many years she achieved the highest possible performance reviews for her service. In 2011, a diabetic student, HDC, committed suicide because of her classmates' bullying. As the school nurse, Rayborn had worked closely with HDC to monitor her diabetes

and provide her with medical care. Rayborn documented fluctuations in HDC's glucose levels and increased frequency of hypo/hyperglycemia

in the months before the suicide.

Rayborn testified that she recommended to BPSS's 504 coordinator¹ that HDC receive special accommodations, but her suggestion was apparently ignored. Sometime before the suicide, HDC informed Rayborn that she was uncomfortable receiving a profile in the school's yearbook as a student with a disability. Rayborn passed HDC's concern along to the administration, and HDC was not required to participate in the yearbook's plan. HDC later informed Rayborn that her substitute teacher had forbidden her to monitor her glucose levels in class. Rayborn brought this to the teacher's attention and explained that HDC had a health plan with which the school was legally obligated to comply. HDC's teachers received emails from Rayborn, reminding them of HDC's health plan and instructing them to print a hard copy of the plan for substitute teachers. About a week before HDC's death, Rayborn treated HDC for high glucose levels. Rayborn took notes of all of her interactions with HDC.

After her suicide, HDC's parents sued the Bossier Parish School Board ("BPSB"). Rayborn's notes were subpoenaed as part of that action. Bourgeois and Ginger Hughes, Rayborn's supervisor, each met individually with Rayborn to discuss the notes' contents before responding to the subpoena. Rayborn explained that the school's failure to put HDC on a 504 plan raised concerns.² Rayborn expressed other concerns and safety issues, pointing to a number of "red flags" with the school's handling of HDC's health needs.

By the end of these meetings, Hughes and Bourgeois's demeanors had changed. They appeared "alarmed" and "distant and distracted." Hughes said Rayborn's concerns reflected poorly on the school system. Rayborn claims that these administrators treated her differently after the meetings. Bourgeois gave Rayborn "cold stares," avoided conversing with her, and was less talkative around her. Rayborn overheard Bourgeois mocking her by reading aloud in an effected tone a work-related email that Rayborn had circulated to the staff.

Rayborn also had problems with a medically-trained secretary, Michelle Barger. Hughes issued a verbal reprimand to Rayborn for one particularly bad confrontation with Barger that occurred in front of students and parents, and Hughes informed Rayborn that she had discussed an involuntary transfer with Bourgeois. According to Rayborn, Hughes specified that the reprimand was issued in part because she did not give the administration "wiggle room." Hughes further stated that Rayborn's practice of voicing her concerns was becoming a problem and that she needed to be a "professional."

Near the end of a school administration meeting addressing medication management and documentation and other health-related issues, a question was posed regarding whom to contact in the event of a medical emergency. Bourgeois announced that whether a nurse was present or not, any response to a medical emergency should be referred to 911. Later, a student passed out in the cafeteria. Nobody informed Rayborn, who was in her office, until after 911 had been called and other medical professionals had arrived on the scene. Upset, Rayborn went to Bourgeois's office and protested her exclusion from the medical emergency, arguing that her absence jeopardized children's safety and lives. Bourgeois said, "[w]e didn't need you" and reminded her of the meeting in which she had decided 911 would be called whether the nurse was on campus or not. Rayborn exited Bourgeois's office repeating, "unbelievable." Id.

After that incident, Hughes reprimanded Rayborn again and issued her a mandatory transfer to another school within the BPSS. Hughes informed Rayborn that she agreed with Rayborn about student safety, but she could not condone "insubordinate" conduct. Rayborn's transfer was effective immediately and she was not allowed to return to Parkway without an escort.

Rayborn found the transfer unsatisfactory. She was no longer at Parkway with her children and she had a list of concerns regarding the facilities at her new school. Rayborn's pay and benefits, however, remained unchanged.

Rayborn filed two grievances, but BPSB took no formal action. Rayborn claims Hughes subsequently issued a false evaluation of Rayborn, accusing her of excessive absences and failure to complete a proposed wellness program. Within a few months of the transfer, Rayborn resigned and found work elsewhere because she "was afraid to go back. They had forced [her] out of [her] job."

Rayborn sued BPSB, and its insurance provider, Ace American Insurance Company, as well as Bourgeois and Hughes in their official and individual capacities (collectively, "Defendants"). She claimed Defendants were liable under 42 U.S.C. § 1983 for retaliating against her for expressing her views about the administration's inadequacies in handling various medical emergencies—including the suicide of HDC—in violation of the First Amendment. She also claimed Defendants impugned her liberty and reputational interests in violation of the Fourteenth Amendment. Finally, she claimed BPSB violated the Louisiana whistleblower law and Defendants' actions amounted to intentional infliction of emotional distress.

The district court granted summary judgment in favor of Defendants on all of Rayborn's claims. She timely appealed.

STANDARD OF REVIEW

We review "a grant of summary judgment de novo , applying the same standard as the district court." Rivera v. Hous. Indep. Sch. Dist. , 349 F.3d 244, 246 (5th Cir. 2003). Summary judgment is appropriate "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." Fed. R. Civ. P. 56(a). "In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party." Wilson v. Tregre , 787 F.3d 322, 325 (5th Cir. 2015). We "may affirm the district court's summary judgment on any ground raised below and supported by the record." Id. (quoting Rogers v. Bromac Title Servs., L.L.C. , 755 F.3d 347, 350 (5th Cir. 2014) ).

DISCUSSION

I. Louisiana Revised Statute § 23:967

Rayborn first challenges the district court's dismissal of her state-law³ whistleblower claim under Louisiana Revised Statute § 23:967.⁴ Rayborn contends that the district court erred when it used federal jurisprudence associated with Title VII to analyze her claim under the Louisiana whistleblower statute. As Rayborn points out, this court has noted that " § 23:967 seems to offer broader protections" than Title VII. Schroeder v. Greater New Orleans Fed. Credit Union , 664 F.3d 1016, 1026 (5th Cir. 2011). Nonetheless, our precedent, and that of the Louisiana state courts, has consistently cited to Title VII standards in interpreting § 23:967. See Strong v. Univ. Healthcare Sys., L.L.C. , 482 F.3d 802, 805 n.1 (5th Cir. 2007) ("the standards governing both claims [under Title VII and § 23:967 ] are materially indistinguishable"); Smith v. AT&T Sols. , 90 Fed.Appx. 718, 723 (5th Cir. 2004) ("[w]hile the Louisiana Supreme Court has not spoken directly on whether [Title VII's] framework applies to section 23:967 cases, Louisiana courts have often looked to federal anti-discrimination jurisprudence in interpreting Louisiana's anti-discrimination statutes"); Imbornone v. Treasure Chest Casino , No. 04-2150, 2006 WL 1235979, at *3 (E.D. La. May 3, 2006) ; Tatum v. United Parcel Serv., Inc. , 79 So.3d 1094, 1103–04 (La. Ct. App. 2011). Rayborn provided no Louisiana cases interpreting § 23:967 otherwise. Accordingly, we apply the standards and requirements of Title VII when analyzing her retaliation claims under § 23:967.

Applying federal Title VII standards, Rayborn's claim under § 23:967 fails. An employee "establishes a prima facie case for unlawful retaliation by proving (1) that she engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action." Long v. Eastfield Coll. , 88 F.3d 300, 304 (5th Cir. 1996) (citing McMillan v. Rust Coll., Inc. , 710 F.2d 1112, 1116 (5th Cir. 1983) ). For the purposes of § 23:967, an adverse employment action "is defined as 'a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different...