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Herster v. Board of Supervisors of Louisiana State University

United States Court of Appeals, Fifth Circuit

April 4, 2018

MARGARET HERSTER; SCOTT SULLIVAN, Plaintiffs-Appellants,
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY; ROD PARKER; KEN CARPENTER; A.G. MONACO; JENNIFER NORMAND; MIMI RUEBSAMEN; KIMBERLY ARP, Defendants-Appellees

          Appeals from the United States District Court for the Middle District of Louisiana

          Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit Judges.

          CARL E. STEWART, Chief Judge.

         Margaret Herster ("Herster") and her husband Scott Sullivan ("Sullivan") appeal the dismissal of their claims against the Board of Supervisors of Louisiana State University ("LSU") related to alleged gender discrimination. Prior to the jury trial for this case, the district court granted LSU's motion for summary judgment dismissing Herster's Louisiana state law spoliation claim. Subsequently at trial, the district court granted LSU's motions for judgment as a matter of law dismissing Herster's Title VII gender discrimination in pay claim and her Louisiana whistleblower statute claim. Sullivan's claim for loss of consortium was also dismissed. Herster and Sullivan assert that the district court erred in dismissing their claims. We disagree. For the reasons set out below, we AFFIRM.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY a. Factual Background

         Herster and Sullivan began their employment at LSU in 2009-Herster as a part time Instructor of Digital Art in LSU's College of Art Design (the "School of Art") and Sullivan as a Professor of Law at LSU's Law Center (the "Law Center"). During the interview process for his Professor of Law position at the Law Center, Sullivan inquired about the possibility of his wife, Herster, also obtaining a faculty position at LSU. After receiving Herster's credentials and qualifications, the School of Art agreed to employ Herster. The Law Center initially provided some of the funding for Herster's position.

         Once Herster began her employment at the School of Art, she immediately began to believe that she was being asked to do substantially more work than what her part-time Instructor position should entail. In addition to teaching classes, the Director of the School of Art, Rod Parker ("Parker"), appointed Herster as the Area Coordinator of Digital Art, a position that required her to perform administrative duties.[1] Because Herster believed that Parker was "trying to get [her] to do twice the work of a full-time faculty member at half the pay of a full-time faculty member" she often asked Parker to clarify what her duties were and whether she could receive more than her $25, 000 yearly salary.

         At trial, Herster stated that Parker's responses to her requests ranged from, "Okay, I hear you. That does sound right, " to "I'll try and do something; I'll go talk to someone about it, " to allegedly threatening her on one occasion. According to Herster, in November 2009 Parker responded to her request for more pay by stating, "I thought you were a trailing spouse. I thought you were going to have children and be happy, like Jackie Parker."[2] Parker additionally told Herster that she was acting like an "eight year old" and a "princess." Herster stated that Parker repeatedly called her a trailing spouse and remarked that she should just have babies and be happy.

         In January 2011, Herster's title of part-time Instructor of Digital Art was changed to a full-time Professional-in-Residence position. Although Herster claims that her duties at the School of Art did not change, Herster's full time Professional-in-Residence title increased her yearly salary to $41, 000. The School of Art's Professional-in-Residence appointment had to be renewed annually and was not a tenure track position.

         Even with the title change, Herster claimed that she was compensated less than her male colleagues with similar duties. Herster subsequently filed a series of internal complaints against the School of Art alleging sex discrimination, sexual harassment, and the illegal collection of course fees.[3]Herster's internal complaints of sexual discrimination and harassment to LSU's Human Resources department led to Herster filing a charge with the EEOC alleging that LSU discriminated against her because of her gender and that she had been subjected to a hostile work environment.[4]

         In February 2012, Herster sent a letter to the Dean of the School of Art, Ken Carpenter ("Carpenter"), stating that course fees were being improperly collected from students. At the beginning of classes for each semester, the professors and instructors in the School of Art were asked to pass out course fee forms to students interested in paying the School of Art directly for art supplies such as special inks, screens, paints, clay, and similar items that would be used during classes. The students at the School of Art were offered this option as an alternative to purchasing all of the supplies for each class independently.

         Because Herster believed that the course fees imposed on the School of Art students were illegal, she told Carpenter that "[t]he disparity between the School of Art's practices and University policy and state law are serious. . . . [T]he School of Art is engaged in a surreptitious tuition raise in violation of the Louisiana Constitution." An internal audit by LSU indicated that the School of Art's imposition of the course fees had not been approved by the Louisiana state legislature. The audit report concluded that since 2010, the School of Art had charged approximately $28, 000 annually in unapproved course fees and that some of the fees were used for purposes contrary to LSU policy. Some of the course fees were reportedly used to purchase items such as large screen monitors, scanners, and iPads for faculty members rather than for the intended purpose of purchasing art supplies for student use in the classroom.

         In March 2012, the day after Carpenter forwarded Herster's course fee letter to Parker, Parker sent an email to Herster advising her that a faculty member panel would be conducting an annual reappointment review within the month to evaluate whether to renew her Professional-in-Residence appointment. The faculty member panel would also review whether three other faculty members' contracts should be renewed at this time. Professor Kimberly Arp ("Arp"), the School of Art's Tenured-Faculty Coordinator, was the chair of the faculty member panel determining whether Herster's Professional-in-Residence appointment should be renewed.

         The faculty member panel vote concluded with the decision not to renew Herster's appointment-fifteen faculty members voting against the appointment renewal and two faculty members voting for the appointment renewal. In an official report of the meeting required by LSU policy, Arp stated that one of the main reasons for the decision was that Herster's concept of the Professional-in-Residence position did not match with the School of Art's expectations of her. Arp pointed out that Herster refused to teach certain courses, received poor teaching evaluations, and lacked sufficient creative activity. Herster internally appealed the decision to have it reconsidered, which resulted in another vote against renewal of her Professional-in-Residence appointment. In the report from the second meeting, Arp recounted the same reasons mentioned previously but provided more detail, and noted that Herster's lack of collegiality with faculty influenced the decision.

         Herster requested that Arp provide his personal notes from the faculty member panel meeting to her. Arp used his meeting notes to create his official report of the decision not to renew Herster's appointment. At first, Carpenter asked Arp to provide his notes to Herster but later emails from LSU's Human Resources department and Parker advised Arp not to turn over his notes to Herster. After the Executive Vice Chancellor and Provost at LSU approved the School of Art's decision not to renew Herster's appointment, Arp shred his notes from the faculty member panel meeting. Arp's usual practice was to shred his notes after the employment decision from the meeting was made final.

         LSU subsequently terminated Herster in January 2013 after her Professional-in-Residence appointment term ended.

         b. Procedural History

         In January 2013, Herster and Sullivan filed this lawsuit against LSU and individual defendants associated with LSU alleging numerous state law and federal claims. Relevant to this appeal, before the jury trial began, the district court granted LSU's motion for summary judgment dismissing Herster's Louisiana state law spoliation claim. Herster's claims regarding gender discrimination in pay in violation of Title VII, hostile work environment in violation of Title VII, retaliation in violation of Title VII, and Louisiana's whistleblower statute were presented to a jury at trial in December 2016. After Herster's case-in-chief, LSU moved for judgments as a matter of law on Herster's claims. The district court granted LSU's motions for judgment as a matter of law for Herster's Title VII gender discrimination in pay claim, Title VII hostile work environment claim, and Louisiana ...


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