United States: Fifth Circuit Emphasizes Narrowed Liability For Employee Transfer Under The Louisiana Whistleblower Statute

Last Updated: March 15 2018
Article by Andrew Burnside

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).

Background

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. 

Key Takeaways

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions