DALE HARTLEY * NO. 2022-CA-0840 VERSUS * COURT OF APPEAL UNIVERSITY OF HOLY * CROSS FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-06169, DIVISION “L” Honorable Kern A. Reese, Judge ****** Judge Rosemary Ledet ****** (Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Dale N.

Atkins)

Jessica M. Vasquez VASQUEZ LAW OFFICE Poydras Street, Suite 900 New Orleans, LA 70130 COUNSEL FOR PLAINTIFF/APPELLANT Debra J. Fischman James M. Garner Jeffrey Darren Kessler SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. Poydras Street Suite 2800 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/APPELLEE AFFIRMED July 19, 2023 RML This is an employment discrimination suit. Dr. Dale Hartley filed this suit PAB against his former employer, University of Holy Cross (“University”). From the DNA trial court’s September 14, 2022 judgment granting University’s summary judgment motion and dismissing the case, Dr. Hartley appeals. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND In September 2017, University hired Dr. Hartley—an industrial- organizational psychologist—as the Director of Grant Initiatives and Accreditation Support, an administrative-staff position. In November 2018, University terminated Dr. Hartley’s employment. When he was hired, Dr. Hartley signed not only a letter confirming University’s employment offer, but also University’s employee handbook. Dr. Victoria Dahmes was Dr. Hartley’s direct supervisor. Dr. Dahmes was also University’s provost and chief academic officer. In April 2018, Dr. Dahmes rated Dr. Hartley’s work as commendable.

In July 2018, University posted an announcement that it was accepting applications for a vacant faculty position in its Executive Leadership Program (“ELP”). At that time, the ELP had been in existence for about three years. When University created the ELP program, it decided to staff the program with four full- time professors. Because one of the four professors resigned, University, in July 2018, posted an announcement seeking a replacement for that vacant position.

Nine people, including Dr. Hartley, applied for the position. In support of his application, Dr. Hartley submitted a letter of recommendation from Dr. Dahmes.

To facilitate the selection process, University formed a twelve-member search committee that included eight students and four faculty members (the “Committee”).1 The Committee’s racial composition was six African-Americans (50%), five Caucasians (42%), and one Hispanic (8%). The Committee’s gender breakdown was eight females (67%) and four males (33%). The Committee divided the selection process into two parts: an application review phase and an interview phase. This case focuses on only the first part—the application review phase.

In the application review phase, each Committee member was required to rank his or her top three candidates. The criteria for ranking was the job description and the candidate’s application. The Committee members’ rankings were tallied, and the four top-ranking candidates were selected to move to the interview phase.

The race and sex of the four candidates the Committee selected to move to the interview phase were as follows: one Caucasian male, two Caucasian females, and one African-American female.2 Dr. Hartley—a Caucasian male—was not one of the four candidates selected to move to the interview phase.

The record reflects that the following undisputed events occurred from August 2, 2018—when Dr. Hartley learned that he was not selected3—to November 9, 2018—when Dr. Hartley was terminated: • August 2, 2018—Dr. Hartley emailed Dr. Donaldo Batiste, the Committee’s head, and Dr. Lisa Sullivan, the Committee’s chair, seeking an explanation of the Committee’s selection process; • August 15, 2018—Dr. Hartley emailed University’s Human Resources (“HR”) Director, Christine Watts, and copied his supervisor, Dr. Dahmes, asserting a “suspected EEOC violation” and setting forth the facts that he believed created a reasonable suspicion of disparate impact discrimination;4 • August 19, 2018—Dr. Dahmes sent an email to Dr. David Landry— University’s president—stating that “[w]e need to cut [Dr. Hartley’s5] position as soon as possible. After talking with [Dr. Hartley], it may be time to consult the attorneys”;

• August 21, 2018—Ms. Watts and Dr. Dahmes met with Dr. Hartley to address the issue concerning the ELP faculty hiring process; • August 22, 2018—Dr. Landry met with Ms. Watts and Dr. Dahmes to discuss their meeting with Dr. Hartley; the trio concluded that there was no discrimination and that no further action would be taken based on Dr. Hartley’s complaint; • September 7, 2018—Dr. Hartley sent an email to Dr. Dahmes stating that he was not attending a scheduled committee meeting because he was “concerned that [he] would be so skeptical and angry in the meeting that [he] would say something [he] might later regret”; • September 21, 2018—Dr. Dahmes, through University’s attorney, sent a letter to Dr. Hartley reprimanding him for multiple reasons, including insubordination for refusing to attend the scheduled committee meeting; and • November 9, 2018—Dr. Landry and Ms. Watts met with Dr. Hartley, and Dr. Landry terminated Dr. Hartley’s employment.

On November 27, 2018, Dr. Hartley filed an EEOC complaint against University.6 After his EEOC complaint was dismissed and a right to sue letter was

I. I began employment with the above Respondent in September 2017 most recently in an administrative job. Beginning July 2018 I was denied a promotion as a Professor of Executive Leadership. After I questioned management I was informed of my discharge on November 9, 2018 by Christine Watts (H.R.) and Dr. David Landry (President). The company employs over 100 persons.

II. Dr. Victoria Dahmes (supervisor) wrote a letter of recommendation to the committee re: the above position. Dr. Dahmes stated to me, [t]hey have some adjuncts they like who are also going to apply. But I guess all the faculty in that program don’t have to be black. I learned that all full-time faculty in that program were black. Also, a black person was hired for the faculty position that I applied for. In August 2018, I sent an email to Christine Watts and Dr. Dahmes re: the matter. A meeting was held and it was not nice. I was told that I was wrong and mistaken. After the meeting things began to change. Dr. Dahmes refused to talk to me anymore, from August until the deadline in October, 2018, she did not help me resolve urgent problems I was having in getting faculty to cooperate with the Board of Regents grant process and in September 2018 she sent an email asking about me taking a Friday off from work. Additionally, Dr. Dahmes sent a letter to the university attorney falsely accusing me of coercion, threats and intimidation which I deny. On the day of discharge, I was called into the office and told that I was not happy there and the university must bring the situation to a close. Also, the students in the doctoral program decided who would be interviewed and selected for the position. These students were not competent or qualified.

issued, Dr. Hartley filed this suit against University. In his petition, Dr. Hartley asserted the following five claims against University: (i) discrimination; (ii) retaliation; (iii) defamation; (iv) breach of contract; and (v) negligence. After answering and engaging in discovery, University filed a summary judgment motion. Following a hearing, the trial court granted University’s motion and dismissed all five of Dr. Hartley’s claims against it. This appeal followed.

DISCUSSION Although Dr. Hartley assigns multiple errors,7 the narrow issue presented is whether the trial court erred in granting University’s summary judgment motion.

Summary Judgment Principles and Standard of Review An appellate court reviews a trial court’s judgment on a summary judgment motion de novo. See Planchard v. New Hotel Monteleone, LLC, 21-00347, p. 2 (La. 12/10/21), 332 So.3d 623, 625 (citations omitted). In so doing, an appellate court applies the same criteria that govern the trial court’s decision as to whether a summary judgment motion should be granted—“whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Id., 21-00347, pp. 2-3, 332 So.3d at 625.

Prior to the retaliation in response to my EEOC complaint, Dr. Dahmes considered me an excellent employee as reflected in my performance evaluation, which rated my performance as ‘commendable’ (highest rating) and stated that I had an ‘excellent work ethic’ and was ‘very pleasant to work with.’

III. I believe I have been discriminated against based on my race (White) and retaliated against in violation of Title VII or the Civil Right Act of 1964 as amended.

The governing statutory provision states that such motion “shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). The burden of proof on a summary judgment motion is governed by La. C.C.P. art. 966(D)(1), which provides for a shifting burden of proof.8 Procedurally, the pleadings a party may file in connection with a summary judgment motion are limited, by statute, to the following three: (i) the motion itself and an accompanying memorandum in support; (ii) an opposition; and (iii) a reply.

La. C.C.P. art. 966(B). A sur-reply is not permitted.9 The summary judgment procedure is favored and shall be construed to “secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.” La. C.C.P. art. 966(A)(2). The summary judgment procedure is designed to decide if any genuine issue of material fact

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

exists warranting a trial. See Cutrone v. English Turn Prop. Owners Ass’n, 19- 0896, p. 7 (La. App. 4 Cir. 3/4/20), 293 So.3d 1209, 1214 (citation omitted).

A genuine issue of fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on the issue, and the granting of summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 (citation omitted). A material fact is one that “might affect the outcome of the suit.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Whether a fact is material must be determined based on the applicable substantive law. Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citation omitted); Maddox v. Howard Hughes Corp., 19-0135, p. 5 (La. App. 4 Cir. 4/17/19), 268 So.3d 333, 337 (citation omitted).

Here, the applicable substantive law is three-fold: (i) the Louisiana Employment Discrimination Law (“LEDL”), La. R.S. 23:301, et. seq.; (ii) Louisiana contract law; and (iii) Louisiana tort law. Dr. Hartley asserts two LEDL claims—disparate impact discrimination and retaliation; one breach of contract claim; and two tort claims—defamation and negligence. We divide our analysis into these three categories.

LEDL Claims LEDL mirrors federal employment discrimination law; thus, Louisiana courts look to federal jurisprudence in construing it. See Rick J. Norman, LA. PRAC. EMPLOYMENT LAW § 7:13 (observing that “LEDL is substantively similar to Title VII, the most comprehensive federal statute prohibiting discrimination” and that “[i]t is appropriate for Louisiana courts to consider interpretations of the Title VII when construing the LEDL”); see also Burnett v. E. Baton Rouge Par.

Sch. Bd., 11-1851, pp. 6-7 (La. App. 1 Cir. 5/3/12), 99 So.3d 54, 59 (citation omitted).

When, as here, a plaintiff relies on circumstantial evidence to establish a LEDL claim, the McDonnell Douglas burden-shifting analysis applies. See Ross v. Judson Indep. Sch. Dist., 993 F.3d 315, 321 (5th Cir.), cert. denied, ___U.S. ___, 211 L.Ed.2d 94, 142 S.Ct. 216 (2021).10 Explaining the McDonnell Douglas burden-shifting analysis, the trial court judge, in his oral reasons for judgment, observed: [I]n discrimination cases . . . it’s incumbent upon the plaintiff to set forth a prima facie case of disparate impact, retaliation, whatever it is. It’s then the burden of the employer to show that there is a rebuttable presumption for the action that’s not pretextual; that [they] had a legitimate basis for undertaking the action against the employee that they did. And then if that’s established, then the employee has to go forward and show that disparate impact or retaliation, or whatever the cause of action is, they can carry a burden of proof to establish their cause of action.

The trial court, applying the burden-shifting analysis, dismissed both of Dr. Hartley’s LEDL claims—disparate impact discrimination and retaliation. We separately address each of his LEDL claims.

Disparate Impact Discrimination Discrimination based on disparate impact arises “from employment practices that are facially neutral in their treatment of different groups but that, in fact, impact more harshly on a protected group and cannot be justified by business necessity.” Rick J. Norman, LA. PRAC. EMPLOYMENT LAW § 7:4. Disparate impact

claims do not require proof of intent to discriminate; rather, “[such claims] focus on facially neutral employment practices that create such statistical disparities disadvantaging members of a protected group that they are ‘functionally equivalent to intentional discrimination.’” Munoz v. Orr, 200 F.3d 291, 299-300 (5th Cir. 2000) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)).

To present a prima facie case of disparate impact discrimination, a plaintiff must prove three elements: “(1) an identifiable, facially neutral personnel policy or practice; (2) a disparate effect on members of a protected class; and (3) a causal connection between the two.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 275 (5th Cir. 2008) (citation omitted).

In his petition, Dr. Hartley pled a narrow disparate impact discrimination claim arising from “the inherent bias in selecting the candidates to be interviewed.”

Dr. Hartley based his claim solely on the first of the two-part process of hiring an ELP faculty member—the application review phase. The trial court, in dismissing this claim, cited multiple factors, including the following three: (i) the students on the Committee had some degree of education and experience; (ii) Dr. Hartley’s objection was that he was not even given an interview (the application review phase), not to the candidate’s selection (the interview phase); and (iii) given Dr. Hartley’s claim was limited to the application review phase, the only relevant statistic was that “three of the four [candidates selected to interview] were

Caucasians; one was African American.” The trial court, thus, dismissed Dr. Hartley’s disparate-impact claim.11 On appeal, Dr. Hartley contends that there is a genuine issue of material fact regarding expert-statistical evidence and causation because all five ELP faculty members chosen in the three years the ELP program has been in existence have been the same race—African American. University counters that this is not a case in which expert-statistical evidence is needed. Regardless, University emphasizes Dr. Hartley’s failure to identify the specific policy being challenged—an essential requirement for a disparate impact claim. According to University, Dr. Hartley continuously has argued that the entirety of University’s hiring policy is at issue.

Addressing the disparate impact claim, we divide our analysis into two parts: expert-statistical evidence and specific policy challenged.

Expert-Statistical Evidence In support of his argument that there is a genuine issue of material fact regarding expert-statistical evidence, Dr. Harley cites the two expert affidavits that

he introduced in opposing University’s summary judgment motion: (i) his own affidavit; and (ii) the affidavit of his expert, Dr. Richard Mendelson—an industrial- organizational psychologist, like Dr. Hartley.12 In his affidavit, Dr. Hartley attested that University: (i) appointed a largely unqualified committee; (ii) gave them no evaluation criteria; (iii) allowed them to pick their “top 3” acting alone and independently of each other; and (iv) provided them with a job description that failed even to specify the type of doctorate degree they should look for in finalists, thus creating many ways for implicit bias to infect the search process.

Dr. Hartley’s expert, Dr. Mendelson, in his affidavit, attested that in Louisiana the population of Caucasians who hold a Ph.D. is not adequately represented by “the ELP selection decisions of [University], as demonstrated by the fact that just over half of the total Ph.D. holders in Louisiana are Caucasian and 0% of the Faculty in the ELP at [University] are representative of that group.”

Dr. Mendelson further observed that University failed to keep adequate records as to the applicants’ demographic information, as to the manner in which the applicants were rated, and as to the manner in which a determination as to which applicants would be selected was made. As a result of University’s record- keeping failure, Dr. Mendleson observed that adequate data to perform an analysis was lacking. Moreover, he attested that “[i]f a program cannot be examined in a

step-by-step manner to avoid the occurrence of disparate impact, it is standard practice in the fields of Human Resources and Psychology to consider the hiring process from a holistic perspective.” Continuing, Dr. Mendelson observed that “the employee selection process resulted in the selection of employees that disproportionately represent a single ethnic group when compared to the population of the State of Louisiana.”

Here, however, the only relevant statistic, as the trial court observed in its reasons for judgment, is that three out of the four candidates selected to interview were Caucasians. This simple statistic defeats Dr. Hartley’s disparate impact claim, which is based on only the application review phase. This simple statistic shows that Caucasians were not disparately impacted in the application review selection process. For this reason, Dr. Hartley’s reliance on expert-statistical evidence in an attempt to create a genuine issue of material fact is misplaced.13

First, Dr. Hartley’s adverse impact claim is that he was not selected for an interview because the Committee’s interview selection process was tainted by implicit bias. Given that Dr. Hartley so narrowly defined his claim, the correct sample is the pool of applicants that underwent the interview selection process. In looking at the candidates whom the Committee selected to interview, three out of the four selected candidates were Caucasians. Thus, the application review selection process did not cause a statistical disparity excluding Caucasians from interviewing for the ELP position.

Second, Dr. Hartley’s suggested statistics focus on the individuals ultimately hired for the ELP position. The Committee at issue here was the third one formed to select ELP faculty members. The prior two search committees did not include students and, thus, those searches are not relevant to Dr. Hartley’s disparate impact claim. Even assuming that those searches are relevant, the results of those searches cannot support a disparate impact claim. The small sample size—five ELP faculty members hired over the three-year span the ELP program has been in existence—belies such a claim. See Robinson v. City of Dallas, 514 F.2d 1271, 1273 (5th Cir. 1975) (observing in a case involving a practice that affected only five employees that “[s]uch small numbers are insufficient to support any conclusion as to whether the rule has a discriminatory effect”).

Specific Policy Challenged A more fundamental flaw in Dr. Hartley’s disparate impact claim is his failure to satisfy the first essential element to state such a claim—an identifiable, facially neutral personnel policy or practice. McClain, 519 F.3d at 275. The jurisprudence has recognized that “[i]t is critical that the plaintiff identify the specific employment practice that is challenged.” Okeke v. Adm’rs of Tulane Educ.

Fund, 21-30451, 2022 WL 1025991, at *6 (5th Cir. Apr. 6, 2022) (internal quotations and citations omitted). Stated otherwise, the plaintiff must provide evidence “isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1284 (5th Cir. 1994) (citation omitted)14; see also Pouncy v. Prudential Ins. Co. of Am., 668 F.2d 795, 800 (5th Cir. 1982).

Here, Dr. Hartley contends that he met his burden by identifying University’s hiring policy. In support, he cites University’s hiring policy that

Third, the so-called “80/20” rule cited by Dr. Hartley in his affidavit is not relevant here.

The 80/20 rule—also referred to as the four/fifths rule—is an EEOC guideline that “states that a disparity of 20% will be considered evidence of adverse impact.” Arndt v. City of Colorado Springs, 263 F.Supp.3d 1071, 1075 (D. Colo. 2017). The 80/20 rule is inapposite given the small sample size. See 29 C.F.R. § 1607.4 (D) (providing, in part, that “[g]reater differences in selection rate may not constitute adverse impact where the differences are based on small numbers and are not statistically significant”). Moreover, as University points out, the 80/20 rule is simply a “rule of thumb.” Howe v. City of Akron, 789 F.Supp.2d 786, 797 (N.D. Ohio 2010) (observing that “[t]his statistic is considered a ‘rule of thumb.’ 44 Fed. Reg. 11996, 11998 (1979)” and that this statistic “is not an absolute, bright line test for adverse impact”).

provides “[s]earch committee . . . will verify the qualifications of the applicants.”

University counters that Dr. Hartley’s reliance on its hiring policy to establish his disparate impact claim is misplaced.15 Moreover, University emphasizes that Dr. Hartley has also argued that the policy at issue is University’s having no policy. In support, University cites the following three arguments Dr. Hartley advanced: (i) “it is not a delineated policy of how the search committee has to operate”;16 (ii) “there are no standardized instructions” for the search committee; and (iii) “no other instructions or tools were given” to the search committee to rank the candidates.17 Dr. Hartley’s concessions as to the absence of a specific policy, University contends, defeat his disparate impact claim. We agree.

The jurisprudence has recognized that reliance on the disparate-effect theory is not appropriate when, as here, a plaintiff has “launch[ed] a wide ranging attack on the cumulative effects of [an employer’s] employment practices.” Pouncy, 668

As a result, Dr. Hartley contends that the search committee members were allowed to choose candidates based on their subjective whims and biases.

F.2d at 800. The jurisprudence also has recognized that “[s]imply because [a plaintiff-employee] refers to his own generalized observation as a ‘practice’ or ‘policy’ does not make it so.” Hanrahan v. Blank Rome LLP, 142 F.Supp.3d 349, 354 (E.D. Pa. 2015).

Neither University’s hiring process, in general, nor the absence of criteria regulating the search committee’s creation and function, in particular, is sufficient to satisfy the specific employment practice requirement. Given Dr. Hartley’s failure to identify a specific employment practice coupled with the lack of relevant statistical support for his claim, the trial court did not err in dismissing his disparate impact discrimination claim.

Retaliation Dr. Hartley’s second LEDL claim is retaliation. To establish a prima facie case of retaliation, the plaintiff must prove by a preponderance of the evidence that: (1) he engaged in an activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Brooks v. S. Univ. & Agr. & Mech.

Coll., 03-0231, pp. 48-49 (La. App. 4 Cir. 7/14/04), 877 So.2d 1194, 1221. “Once the plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action.” Id. “If the defendant introduces evidence, which, if true, would permit the conclusion that the adverse action was non-discriminatory, the plaintiff/employee assumes the burden of establishing that the reason or reasons

given were a pretext.” Id. To do so, “the plaintiff must establish that ‘but for’ the protected activity, the adverse employment action would not have happened.” Id.; see Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352, 133 S. Ct. 2517, 2528, 186 L.Ed.2d 503 (2013) (observing that a Title VII retaliation claim requires “proof that the desire to retaliate was the but-for cause of the challenged employment action”).

The trial court found Dr. Hartley’s retaliation claim unsupported because the but-for standard for causation was not met.18 On appeal, Dr. Hartley contends that but for his discrimination complaint, his supervisor, Dr. Dahmes, would not have caused his termination. He relies on the temporal proximity between his protected activity—his discriminatory complaint—and his termination to support causation; these events occurred four months apart. He also relies on the allegedly inconsistent reasons voiced by Dr. Landry, University’s president, for terminating Addressing the retaliation claim, the trial court, in its oral reasons for judgment, observed as follows: On the issue of retaliation, now, there’s some plug-ins to that, and that is, Dr. Hartley is an at-will employee. He was not a tenured professor. He did not have a term contract. . . . So that segues into, and the meat of the matter is, the retaliation claim. And that’s why I said the dates were important. . . . June 30th, Dr. Dahmes gives him a glowing report; writes a letter of recommendation for him. On August 2nd of 2018, he received the notification that he wasn’t going to be interviewed and that kind of got the ball rolling. Now the protected activity, you argued to the Court, occurred on August 15th wherein he indicated that there may be a Title 7 violation of his employment status. That got that ball rolling. And then I had to look carefully at what transpired after August 15th. The e-mail from Dr.— and apparently from the 15th through the 21st when the meeting took place, there was some e-mail activity with Dr. Dahmes and Dr. Landry. . . . But if Dr. Hartley started his antisocial behavior on August 2nd, within two weeks he potentially generated a basis to have an employee counseling session, at bear minimum, as to being insubordinate or rude or obnoxious . . . , which potentially starts to take away any kind of pretextual argument. So the argument was made that it’s a but for, but the “but” apparently started August 2nd; the “for” didn’t come until almost two weeks later, August 15th. So I don’t find a basis for the retaliation claim on that basis.

him. We separately address each of Dr. Hartley’s arguments: temporal proximity and inconsistency in stated grounds for termination.19 Temporal Proximity Dr. Hartley contends that the temporal proximity between his discrimination complaint and his termination supports a finding of causation. The jurisprudence, however, has recognized that temporal proximity alone is insufficient; instead, temporal proximity is simply one factor to be weighed “in the entire calculation of whether [the plaintiff] ha[s] shown a causal connection between the protected activity and the subsequent firing.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992). Moreover, the jurisprudence has recognized that an employee’s misconduct may break the causal link between the protected activity and the subsequent termination. Schoebel v. Am. Integrity Ins. Co. of Florida, 8:14-cv-426- T-27AEP, 2015 WL 4231670, at *2 (M.D. Fla. July 10, 2015) (observing that “intervening acts of misconduct can break the causal connection (if any) between protected activity and an adverse employment action”). Such is the case here.

Dr. Hartley’s own misconduct, as University contends, is a superseding event that broke the causal link between his protected conduct—his August 2018

email reporting a suspected EEOC violation (the discrimination complaint)—and his November 2018 termination.20 Dr. Hartley’s misconduct that broke the causal link is documented in an email that he sent to his supervisor, Dr. Dahmes, on September 7, 2018 (the “Email”). In the Email, Dr. Hartley announces his refusal to attend a mandatory, work-related meeting (the “Meeting”).

University’s employee handbook provides that attendance at a work-related meeting is mandatory; the handbook provides that “[o]n occasion, we may request that you attend a University sponsored meeting. If this is scheduled during your regular working hours, your attendance is required.” The mandatory nature of attendance at a work-related meeting is reinforced by Ms. Watts, University’s HR Director. In her affidavit, Ms. Watts attests that “[n]ot only is this [attendance requirement] explained in the Employee Handbook, it is also a practiced custom known by the employees at [University].”

Attempting to create a factual dispute regarding the mandatory nature of the Meeting, Dr. Hartley contends that his supervisor, Dr. Dahmes, sent an Outlook calendar invitation for the Meeting. Continuing, he contends that because Dr. Dahmes used an Outlook calendar invitation, he had the option of not attending the Meeting—to reply by selecting “Yes” or “No” on attendance. Based on this characterization of Dr. Dahmes’ invitation email, he contends that Dr. Dahmes never mandated he attend the Meeting. This argument is unpersuasive.

Neither Dr. Hartley nor University was able to produce an actual copy of Dr. Dahmes’ invitation email. The format the invitation email took, however, is irrelevant. Dr. Hartley’s response to the invitation email in the Email sufficiently establishes both the mandatory nature of the Meeting and Dr. Hartley’s insubordination in refusing to attend; the Email reads as follows: I received your message that the Academic Focus Areas meeting is starting early. I am not going to attend. I think that my non-attendance is a good thing, and I wanted to explain why.

Your invitation email indicates that this meeting will involve group activities around the topic of mission integration. Since [University] does not keep its promises to its employees regarding internal hiring preference, and since the institution does not rectify that failure upon being notified of same, I see only hypocrisy where you and others perhaps see mission integration. I am frankly concerned that I would be so skeptical and angry in the meeting that I would say something I might later regret. Therefore, it is in the best interest of all that I do not attend.

Common decency would seem to indicate that a well-qualified internal candidate should not be brushed aside by colleagues on search committees. I’m surprised that I need to point this out, or that we need to be grappling with this issue through lawyers.

Noticeably absent from the Email is any indication that Dr. Hartley viewed his attendance at the Meeting as optional. Nor does the Email include a request by Dr. Hartley to be excused from his obligation, as part of his work-related duties, to attend the Meeting. Instead, in the Email, Dr. Hartley announces his refusal to attend the Meeting; his refusal amounted to insubordination.

The Email establishes that University had a legitimate, non-discriminatory reason to terminate Dr. Hartley’s employment. As a commentator has observed, “[a]bsent egregious circumstances, an employee has no right to be insubordinate or to act unprofessionally”; and “[e]ven when the employee refuses to follow instructions in an effort to defuse a situation, such as failing to attend a required meeting, the disobedience rather than the mitigation is the operative fact.” Andrew J. Ruzicho, Louis A. Jacobs, and Andrew J. Ruzicho II, 1 EMPLOYMENT PRACTICES MANUAL § 6B:8 (internal footnote omitted).21 Stated differently, simply because an employee engages in a protected activity does not shelter the employee from termination for a subsequent refusal to perform his or her job—insubordination.22 The Email documents Dr. Hartley’s insubordination—work-place misconduct. Dr. Hartley’s work-place misconduct is the superseding event that broke the causal link between his protected activity and his termination.

Inconsistency in Stated Grounds for Termination Dr. Hartley’s other argument is that Dr. Landry’s allegedly inconsistent explanations for terminating him support a finding of causation. The jurisprudence has recognized that “a plaintiff may establish the connection [between the plaintiff- employee’s protected activity and the defendant-employer’s adverse employment action] by showing that the employer gave inconsistent reasons for terminating the

employee.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000).

Dr. Hartley’s reliance on this principle here, however, is misplaced.

The record reflects that Dr. Landry made the following three statements regarding the grounds for termination of Dr. Hartley: • In his deposition, Dr. Landry testified that Dr. Hartley was terminated because there was a “general degradation of not only his ability to work with colleagues and get his job description fulfilled but his colleagues in general, over that interview process [meaning the ELP interview search process] became more disenchanted with him” and that “it wasn’t specifically, any one specific thing”; • Dr. Landry later attested in his affidavit that he terminated Dr. Hartley based on “acts of insubordination and creation of an unacceptable work environment for those working with him”; and • At the termination meeting, which Dr. Hartley taped, Dr. Landry stated that he terminated Dr. Hartley because he knew that Dr. Hartley had not “been happy here,” and that the University had come to the position that it had to deal with “this,” and that Dr. Hartley should “do whatever [he had] to do.”

Contrary to Dr. Hartley’s contention, Dr. Landry’s stated grounds—albeit worded differently, made in different formats, and given at different times—are not inconsistent. Dr. Landry consistently stated that Dr. Hartley was terminated because of his work-place misconduct, which began after he was not selected to interview for the ELP position. Given Dr. Hartley’s termination was based on his work-place misconduct, not his protected activity, the trial court did not err in dismissing his retaliation claim.

Louisiana Contract Law Claim Dr. Hartley contends that he entered into an employment contract with University and that University breached the contract by acting in bad faith. This contract law claim requires proof of an employment contract. As noted elsewhere

in this opinion, the trial court found, agreeing with University, that Dr. Hartley was an “at-will” employee without a binding employment contract. In support of his position that the trial court erred in so finding, Dr. Hartley makes two arguments.

Dr. Hartley first argues that University’s offer and acceptance letter for his administrative-staff position as Director of Grant Initiatives created a binding employment contract. This court rejected a similar argument in Green v. Univ. of New Orleans, 98-1809, p. 4 (La. App. 4 Cir. 6/2/99), 740 So.2d 195, 197. There, this court affirmed the trial court’s finding that a letter that “merely confirmed the offer of employment to [the employee] . . . was not an employment contract.” Id. The same is true here.

Dr. Hartley’s second argument is that University’s employee handbook that he signed when he was hired created an employment contract. This court rejected a similar argument in Stanton v. Tulane University of Louisiana, 00-0403, p. 13 (La. App. 4 Cir. 1/10/01), 777 So.2d 1242, 1250. In so doing, we enumerated the following principles: • “The contention that a handbook creates a contract between an otherwise ‘at will’ employee and his employer is neither novel nor, in this jurisdiction, meritorious.” Id. “Louisiana recognizes a presumption favoring at will employment.” Id. • “There are no Louisiana cases holding that employee manuals, policies, or grievances procedures confer any contractual rights upon employees or create any exceptions to the ‘employment at will’ doctrine.” Id. (quoting Mix v. The Univ. of New Orleans, 609 So.2d 958, 964 (La. App. 4th Cir. 1992)); and • “Louisiana jurisprudence clearly and unequivocally upholds the principle that this sort of employment handbook is not a contract such as would eliminate application of the employment at will doctrine.” Stanton, 00-0403, p. 15, 777 So.2d at 1251; see also Hartz v. Adm’rs of Tulane Educ. Fund, 275 Fed. Appx. 281, 289 (5th Cir. 2008).

The principles this court articulated in Stanton apply here. Dr. Hartley’s contention that University’s employee handbook created an employment contract lacks merit. University’s employee handbook provides that it has been written “to serve as a guide for the employer/employee relationship.” It also includes a provision requiring that the employee acknowledge, among other things, the following: (i) that the employee is employed on an “at-will” basis, which means that either University or the employee may terminate the employment at any time, with or without cause; and (ii) that the employee understands that nothing in the employee handbook in any way changes the employee’s “at-will” status. Given the lack of an employment contract between Dr. Hartley and University, Dr. Hartley cannot succeed on a breach of contract claim. The trial court did not err in dismissing the Louisiana contract law claim.

Louisiana Tort Law Claims Dr. Hartley raises two tort law claims—defamation and negligence. We separately address each tort law claim.

Defamation Under Louisiana law, a plaintiff is required to establish four elements to establish a defamation claim: (i) a false and defamatory statement concerning another; (ii) an unprivileged publication to a third party; (iii) fault—negligence or greater—on the publisher’s part; and (iv) resulting injury. See Alexander v. La. State Bd. of Private Investigator Exam’rs, 15-0537, 15-0708, p. 28 (La. App. 4 Cir.

2/17/17), 211 So.3d 544, 563 (citing Costello v. Hardy, 03-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 139).

Dr. Hartley’s defamation claim is based on an October 24, 2018 email; Dr. Dahmes sent the email to University’s head of security—Marshall Pierre—and University’s Vice President of Student Affairs—Meredith Reed. 23 In the email, Dr. Dahmes stated that Dr. Hartley is “more comfortable confronting women.” That same day, Mr. Pierre sent an email to campus police requesting an increase of police presence in the HR office area. The trial court found the publication requirement for defamation was lacking; there was no publication because the communication between University’s executives and employees was privileged and, thus, not defamatory.24 We agree.

“[C]ommunications between appropriate persons within the employer’s walls, concerning allegations of conduct by an employee that bears on the employer’s interest, are subject to the qualified privilege if made in good faith.”

Martin v. Lincoln Gen. Hosp., 588 So.2d 1329, 1333 (La. App. 2d Cir. 1991) A copy of the email was sent to Dr. Hartley’s attorney.

But obviously the first thing you have to have is falsity. Well, there’s really a dearth of testimony regarding his attitude toward women, so the falsity of it, not clearly established, but not clearly not established. That’s kind of a wash from a proof standpoint that I ascertained. The publication, now that tier gave me a little bit of pause because it was not widely publicized. It was not published, not a blast e-mail to everybody at the university or even all the staff members, was not covered in media, was not anything like that. It was notification to members of the executive staff of the university and the security. And again, harkening back to his behavior, especially the comment that he made about I didn’t want to attend the meeting because I couldn’t trust what I might do, and I’m paraphrasing the comment, but that would give people some pause it might be disruptive or possibly even dangerous. So if there is a danger, then the thing you have to do is notify security.

I think that’s a good basis for that. So, I don’t find that there is a cause of action for defamation.

(citations omitted). “Good faith,” in this context, means that “the person making the statement must have reasonable grounds for believing that it is true and he must honestly believe that it is a correct statement.” Williams v. Touro Infirmary, 578 So.2d 1006, 1010 (La. App. 4th Cir. 1991) (citations omitted). When the qualified privilege applies, “statements between employees, made within the course and scope of their employment, are not statements communicated or publicized to third persons so as to constitute a publication.” Danna v. Ritz-Carlton Hotel Co., 15- 0651, p. 11 (La. App. 4 Cir. 5/11/16), 213 So.3d 26, 34 (citing Doe v. Grant, 01- 0175, p. 8 (La. App. 4 Cir. 1/29/03), 839 So. 2d 408, 416).

Dr. Dahmes sent the allegedly defamatory email only to University employees.25 Moreover, she sent the email in the course and scope of her employment. And, the record supports the trial court’s finding that Dr. Dahmes sent the email in good faith. See Williams, supra. As the trial court observed in its reasons for judgment, the finding of Dr. Dahmes’ good faith is supported by Dr. Hartley’s comment in his September 7, 2018 email regarding the Meeting (referred to elsewhere in this opinion as the “Email”) that he “didn’t want to attend the [M]eeting because [he] couldn’t trust what [he] might do.” For these reasons, the trial court did not err in dismissing Dr. Hartley’s defamation claim.

Negligence Dr. Hartley’s second tort claim is a negligence claim. Dismissing this claim, the trial court found that the employer-employee relationship—the exclusive remedy rule of workers’ compensation (“WC”) law26—barred any negligence claim.27 On appeal, Dr. Hartley points out that WC immunity does not exclude an employer’s vicarious liability for its employee’s intentional acts. See La. C.C. art. 2320; Baumeister v. Plunkett, 95-2270, pp. 3-4 (La. 5/21/96), 673 So.2d 994, 996.

Dr. Hartley contends that University is liable under a negligent supervision theory for Dr. Dahmes’ wrongful actions and discriminatory animus. University counters that WC law is the exclusive remedy here and that WC law bars an employee’s negligence claim, even in the context of discrimination claims that do not result in bodily injuries. See Tumbs v. Wemco, Inc., 97-2437 (La. App. 4 Cir. 4/22/98), 714 So.2d 761.

Here, Dr. Hartley’s petition pled a negligence claim. Simply pleading a La. C.C. art. 2315 negligence claim is insufficient to encompass intentional acts.

Gonzales v. T. Baker Smith, LLC, CIV.A. 13-644-SDD-RLB, 2014 WL 905281, at *2 n.18 (M.D. La. Mar. 7, 2014). As the federal district court in Gonzales observed, “[p]laintiffs’ suggestion that, by alleging a violation of La. C.C. art. 2315, they have sufficiently pled all delicts under respondeat superior, which encompasses both intentional and negligent acts, is without merit.” Id. The federal See La. R.S. 23:1032.

district court emphasized that “[plaintiffs] have failed to plead that these particular Defendants committed intentional torts in their Complaint.” Id. Such is the case here. Given that Dr. Hartley pled only a negligence claim against University, the trial court correctly concluded that WC law immunity applies and correctly dismissed Dr. Hartley’s negligence claim.

DECREE For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED