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Herster v. Bd. of Supervisors of La. State Univ.

United States District Court, M.D. Louisiana

December 8, 2014


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For Margaret Herster, Scott Sullivan, Plaintiffs: Jill L. Craft, LEAD ATTORNEY, Baton Rouge, LA USA; Crystal LaFleur, Jil L. Craft, Attorney at Law, LLC, Baton Rouge, LA USA.

For Board of Supervisors of Louisiana State University, Rod Parker, Ken Carpenter, A. G. Monaco, Jennifer Normand, Mimi Ruebsamen, Kimberly Arp, Defendants: Edmond Wade Shows, LEAD ATTORNEY, Amy L. McInnis, Shows, Cali, Berthelot & Walsh, LLP, Baton Rouge, LA USA; Caroline Tomeny Bond, Elizabeth Everett, Shows, Cali, & Walsh, LLP, Baton Rouge, LA USA; James L. Hilburn, Baton Rouge, LA USA.

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This matter is before the court on a motion for partial summary judgment filed by plaintiffs Margaret Herster (Herster) and Scott Sullivan (Sullivan) (Doc. 54) and motions for summary judgment filed by all defendants (Docs. 60, 61, and 62). Defendants Board of Supervisors of the Louisiana State University and Agricultural and Mechanical College (LSU), Rod Parker (Parker), Ken Carpenter (Carpenter), A.G. Monaco (Monaco), Jennifer Normand (Normand), Mimi Ruebsamen (Ruebsamen), and Kimberly Arp (Arp) filed an opposition (Doc. 72) to plaintiffs' motion for partial summary judgment, and plaintiffs then filed a reply. (Doc. 75). Defendants Monaco, Normand, and Rubsamen, all LSU human resources employees (HRM Defendants), filed a motion for summary judgment (Doc. 60) as a group. LSU filed its own summary judgment motion (Doc. 61), and defendants Arp, Carpenter, and Parker (School of Art Defendants) filed their own motion for summary judgment (Doc. 62) as a group. Plaintiffs filed a combined opposition (Doc. 76), and each set of defendants filed a reply (Docs. 89, 90, and 91) addressing the arguments relevant to their cases. Plaintiffs then filed motion for leave to file a sur-reply (Doc. 93), and all defendants filed an opposition (Doc. 94). Oral argument is not necessary.


The following facts are not in dispute. Plaintiff Herster was an employee at LSU and held various positions in the School of Art until 2012, when the school did not renew her contract. The LSU Law Center hired Herster's husband, plaintiff Sullivan, when the main campus hired Herster; Sullivan remains a professor at the LSU Law Center.

While at LSU, Herster complained to several individuals about harassment. She alleged repeated sexual harassment and sex-based discrimination by officials in the School of Art, including Carpenter. In 2011, Herster began suffering physical and mental health issues. Eventually, she filed an EEOC charge asserting sex discrimination and sexual harassment. Around December 11, 2011, the EEOC delivered the notice of charge to LSU. The charge included information on LSU's legal obligations to maintain the appropriate records and materials relevant to the charge.

The sexual harassment and discrimination claims are numerous. Herster detailed many inappropriate comments by faculty within the School of Art, aimed both at her and female students. Parker, according to Herster, ignored her concerns that she received inferior compensation and benefits--for equivalent work--to her male colleagues. She further claims that Parker not just ignored her concerns but reacted by peppering her with more sexually discriminatory language. Particularly, Herster alleges that the School of Art passed over her for a tenure-track position to hire Derick Ostrenko (Ostrenko), a less-qualified[1] candidate. Additionally, Herster asserts that Ostrenko then obtained various benefits and perks that the School of Art denied to her multiple times in the

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past; she also claims that she was stripped of her position as " Area Coordinator" in favor of Ostrenko.

Herster's physical and mental symptoms eventually led her to take leave under the Family and Medical Leave Act (FMLA) around September 2011. The parties dispute whether Herster refused to teach any courses, but while she was on FMLA leave, the defendants admit that she did not receive timely pay. According to Herster, the motives were retaliatory, but the defendants maintain that it was merely a mistake due to the FMLA's complex nature. Ultimately, Herster was paid for the fall semester in November 2011.

During the timeframe of the alleged harassment, Herster learned of misappropriation of student fees by various individuals at the School of Art, including Parker. Herster complained, in writing, to several parties on LSU's campus on February 11, 2012. After investigation, Melissia Cedotal (Cedotal), LSU's internal auditor, found merit in Herster's allegations. Further, Cedotal recommended evaluating Parker's performance as director. According to Herster, Parker learned that she was behind the complaint and retaliated. At some point after the investigation and Herster's complaints, the School of Art convened an " evaluation for reappointment" meeting. Herster challenged this meeting, alleging that Parker should have recused himself as chair. At this meeting, the committee voted not to reappoint the plaintiff, and the School of Art decided, in view of the challenge to Parker, to hold a second meeting with Carpenter as chair. There, as in the first meeting, the committee members voted not to renew Herster's contract.

At the second meeting, Arp took personal notes. While Herster prepared for her appeal, she requested these notes from Arp; Arp sought advice from human resources about the request, and they recommended not providing the notes. Herster claimed that the notes were " public records" and told Arp he was obligated to turn over the notes. Arp never fulfilled this request, however, because LSU's Human Resources Department interpreted LSU's internal rules, and state public records law, to only cover the memorandum Arp wrote after the meeting. Ultimately, Arp destroyed his notes--it was his practice to maintain them only until LSU made a final decision.

Standard of Review

A motion for summary judgment should be granted when the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, show that there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A factual dispute is genuine when " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The admissibility of evidence for summary judgment purposes conforms to the rules of admissibility at trial. Pegram v. Honeywell, Inc., 361 F.3d 272, 285 (5th Cir. 2004) (citations omitted). Material facts are those " that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. Whether a fact is material will depend on the substantive law. Id. When addressing a summary judgment motion, the court must make reasonable inferences in favor of the non-moving party. Evans v. City of Bishop, 238 F.3d 586, 589 (5th Cir. 2000). If the movant meets his initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmovant to identify or produce evidence that establishes a genuine dispute of material fact.

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Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000).


I. Immunity

The HRM Defendants and School of Art Defendants claim that they are immune from suit both in their official and individual capacities. (Doc. 60-1 at 9-10). Regarding their official capacities, the defendants argue that Eleventh Amendment sovereign immunity protects them. Id. at 9. As to their individual capacities, they argue qualified immunity based on facts specific to each defendant and set of defendants. Id. at 10-16.

A. Eleventh Amendment Sovereign Immunity

Because of the sovereign immunity guaranteed by the Eleventh Amendment, Section 1983 claims may only be asserted against persons and " neither a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). State employees and officials acting in their official capacities may not be sued for monetary damages under § 1983, but they may be sued for prospective relief. See Brennan v. Stewart, 834 F.2d 1248, 1253 (5th Cir. 1988); See also Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Further, under Ex Parte Young, state officials cannot be sued for violations of state law in federal court. Earles v. State Bd. of Certified Pub. Accountants of Louisiana, 139 F.3d 1033, 1039 (5th Cir. 1998). Sovereign immunity can also be waived by consent, including through removal by a defendant. Lapides v. Board of Regents, 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002).

Prospective relief, under the Eleventh Amendment, is limited to situations where the claimant has a protected interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Protected interests are those within the Fourteenth Amendment's language of " liberty" and " property." Id. at 569-70. " Property" includes interests from a variety of independent sources--not just the federal constitution--such as state law. Paul v. Davis, 424 U.S. 693, 709, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (Internal citations omitted). In the employment context, reinstatement is a proper remedy for termination, but several courts have made a distinction in situations involving non-renewal of a contract. See, e.g., Roth, 408 U.S. at 579 (" respondent's 'property' interest in employment . . . was created and defined by the terms of his appointment." ). In that instance, due to the absence of a protected interest, reinstatement is only available if the contract is not renewed in retaliation for exercising First Amendment rights. (Doc. 62-1 at 7, 9-10).

Herster is seeking reinstatement, but both the HRM defendants and School of Art Defendants maintain that they are entitled to sovereign immunity. Further, Herster asserts a state law claim of spoliation against both the HRM and School of Art Defendants, and they claim sovereign immunity also protects them from this claim.

i. Removal and Consent

In her opposition, Herster claims that the defendants waived the immunity based on voluntary removal to federal court. (Doc. 77 at 18-19). The case was removed, but neither group of defendants--including any of the individuals within either group--had been served by this time; LSU removed the case at a time when only it had been served. (See Docs. 1, 6-11); (Docs. 89 at 11, 90 at 13). Therefore,

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the other defendants did not waive sovereign immunity, and plaintiffs must overcome it through a different route.

ii. Other arguments

a. HRM Defendants

The HRM defendants note that although Herster seeks reinstatement, they are unable to provide such relief. (Doc. 60-1 at 9-10). According to the HRM defendants, " [n]either Mimi Ruebsamen, nor Jennifer Normand, nor A.G. Monaco have any ability to reinstate a faculty member who has not been reappointed by her [c]ollege." Id at 9. To support their argument, the defendants offered three affidavits, one each from Ruebsamen, Normand, and Monaco, along with attached exhibits to each affidavit. (Docs. 60-3, 60-4, 60-5). Plaintiffs, opting to rest on the consent argument, presented no contrary evidence or facts. Therefore, the HRM ...

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