Tabor v. Madison Parish Hosp. Serv. Dist.

• Decision Date: 13 June 2017
• Docket Number: CIVIL ACTION NO. 14-2374
• Parties: BARBARA TABOR v. MADISON PARISH HOSPITAL SERVICE DISTRICT, ET AL.
• Court: U.S. District Court — Western District of Louisiana

BARBARA TABOR v. MADISON PARISH HOSPITAL SERVICE DISTRICT, ET AL.

CIVIL ACTION NO. 14-2374

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

June 13, 2017

JUDGE ROBERT G. JAMES

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

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;• 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 arecommitted 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 aMPHSD 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].

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...