Fifth Circuit Emphasizes Narrowed Liability for Employee Transfer Under the Louisiana Whistleblower Statute
The Fifth Circuit Court of Appeals affirmed the U.S. District Court for the Western District of Louisiana’s grant of summary judgment under the Louisiana whistleblower law, Louisiana Revised Statutes section 23:967, in favor of an employer that transferred an employee to a less desirable location after revealing concerns about her employer’s handling of a diabetic student. Rayborn v. Bossier Parish School Board, No. 16-30903 (February 2, 2018).
Lori Rayborn, a school nurse at Parkway High School, filed suit against Bossier Parish School Board (BPSB) and two school officials alleging, among other claims, that she was retaliated against under the Louisiana whistleblower law. As a school nurse, Rayborn evaluated a diabetic student who later committed suicide. Rayborn worked closely with the student to monitor her diabetes and documented the student’s glucose and hypo/hyperglycemia levels months before the student’s suicide. Rayborn documented several “red flags” with the school’s handling of the student’s health needs in her notes. The parents of the deceased student filed suit against the BPSB and subpoenaed Rayborn’s notes in that suit.
After Rayborn discussed her notes with her supervisors, Rayborn alleged that her supervisors began to give her cold stares, mocked her, and told her that her notes reflected poorly on the school system. Rayborn also alleged that she suffered an adverse employment action when she was reprimanded after two confrontational incidents with her coworkers. She further alleged that she suffered adverse employment actions when BPSB transferred her to a different school, issued a false evaluation accusing her of excessive absences and failure to complete a proposed wellness program, and constructively discharged her. Rayborn submitted evidence that her new school was unclean, “devoid of safe disposal for used needles,” and inadequate to provide medical care to students.
The Fifth Circuit’s Decision
In analyzing Rayborn’s whistleblower claim, the court applied federal Title VII of the Civil Rights Act of 1964 standards. The Fifth Circuit determined that Rayborn did not have a claim for retaliation under section 967 because neither her transfer nor her reprimand caused her to lose any pay, benefits, or responsibilities. The court further determined that although her new school was subjectively less desirable due to the nature of facility, the differences at her new school did not “amount to a demotion” or otherwise cause a significant change in her employment status. Thus, she did not suffer an adverse employment action.
The Fifth Circuit relied on the “adverse employment action” standard as defined by Burlington Industries, Inc. v. Ellerth, a Title VII case, which held that an “adverse employment action” is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Notably, the Fifth Circuit acknowledged that the Supreme Court of the United States later broadened the definition of “adverse employment action” in the context of Title VII retaliation claims in Burlington Northern and Santa Fe Railway Company v. White. Indeed, White states that a plaintiff must only “show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” However, the Fifth Circuit noted that no Louisiana case has applied the White standard. Thus, the court relied on the Ellerth standard cited by a Louisiana appellate court, which ignored the newer, less demanding standard of White.
The Fifth Circuit also held that Rayborn’s constructive discharge claim lacked merit because “cold stares, rude conduct, and a transfer to a subjectively less desirable location” do not support a constructive discharge claim. The Fifth Circuit affirmed dismissal of Rayburn’s intentional infliction of emotional distress claim because she failed to show that her transfer and disciplinary actions amounted to conduct that “was extreme and outrageous or more than a reasonable person could be expected to endure” as required by Louisiana caselaw.
Judge Dennis, dissenting in part on the section 967 claim, stated that the majority’s decision erred in drawing conclusions on whether Rayburn’s transfer failed to qualify as an adverse employment action. Based on the same undisputed facts cited by the majority, Judge Dennis argued a reasonable jury could find that Rayburn’s new position was objectively worse than her prior position due to conditions that prevented her from fully exercising her nursing skills or generally advancing in her position.
According to Rayburn, an employer is only potentially liable for retaliation under section 967 if a transfer amounts to a demotion such that the job conditions are objectively worse as required under Ellerth, not White. The dissenting opinion cautions employers to not only consider pay, title, or responsibilities when determining whether a transfer is considered a demotion, but also whether the conditions of the new location or assignment provide “specific, concrete deficiencies” that interfere with an employee’s performance. Finally, the panel’s ruling that the Rayborn’s actions were insufficient to support an emotional distress claim confirms Louisiana’s extremely narrow application of that tort in an employment setting.