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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                              United States Court of Appeals

                                 No. 16-30903
                                                                       Fifth Circuit

                                                                     FILED
                                                               February 2, 2018

LORI RAYBORN,                                                   Lyle W. Cayce
                                                                     Clerk
             Plaintiff - Appellant

v.

BOSSIER PARISH SCHOOL BOARD, erroneously referred to as Bossier
Parish School System; NICHOLE BOURGEOIS, in her personal and official
capacity; GINGER HUGHES, in her personal and official capacity; ACE
AMERICAN INSURANCE COMPANY,

             Defendants - Appellees




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      We decide whether the district court erred when it granted summary
judgment against Appellant Lori Rayborn on her claims of (1) retaliation under
Louisiana state law and the First Amendment, (2) deprivation of her liberty
and reputational interests under the Fourteenth Amendment, and (3)
intentional infliction of emotional distress. We AFFIRM.
                          FACTS AND PROCEEDINGS
      Rayborn worked as a nurse at Parkway High School (“Parkway”) within
the Bossier Parish School System (“BPSS”). Her children attended Parkway,
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                                       No. 16-30903
and for many years she achieved the highest possible performance reviews for
her service. In 2011, a diabetic student, HDC, committed suicide because of
her classmates’ bullying. As the school nurse, Rayborn had worked closely with
HDC to monitor her diabetes and provide her with medical care. Rayborn
documented fluctuations in HDC’s glucose levels and increased frequency of
hypo/hyperglycemia in the months before the suicide.
       Rayborn testified that she recommended to BPSS’s 504 coordinator 1 that
HDC receive special accommodations, but her suggestion was apparently
ignored. Sometime before the suicide, HDC informed Rayborn that she was
uncomfortable receiving a profile in the school’s yearbook as a student with a
disability. Rayborn passed HDC’s concern along to the administration, and
HDC was not required to participate in the yearbook’s plan. HDC later
informed Rayborn that her substitute teacher had forbidden her to monitor her
glucose levels in class. Rayborn brought this to the teacher’s attention and
explained that HDC had a health plan with which the school was legally
obligated to comply. HDC’s teachers received emails from Rayborn, reminding
them of HDC’s health plan and instructing them to print a hard copy of the
plan for substitute teachers. About a week before HDC’s death, Rayborn
treated HDC for high glucose levels. Rayborn took notes of all of her
interactions with HDC.
       After her suicide, HDC’s parents sued the Bossier Parish School Board
(“BPSB”). Rayborn’s notes were subpoenaed as part of that action. Bourgeois
and Ginger Hughes, Rayborn’s supervisor, each met individually with Rayborn
to discuss the notes’ contents before responding to the subpoena. Rayborn




       1 Section 504 is a part of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 701,
that is intended, in part, to assist disabled students. BPSS has a coordinator who ensures
compliance with section 504 requirements, sometimes by creating health plans for students.
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                                    No. 16-30903
explained that the school’s failure to put HDC on a 504 plan raised concerns. 2
Rayborn expressed other concerns and safety issues, pointing to a number of
“red flags” with the school’s handling of HDC’s health needs.
      By the end of these meetings, Hughes and Bourgeois’s demeanors had
changed. They appeared “alarmed” and “distant and distracted.” Hughes said
Rayborn’s concerns reflected poorly on the school system. Rayborn claims that
these administrators treated her differently after the meetings. Bourgeois gave
Rayborn “cold stares,” avoided conversing with her, and was less talkative
around her. Rayborn overheard Bourgeois mocking her by reading aloud in an
effected tone a work-related email that Rayborn had circulated to the staff.
      Rayborn also had problems with a medically-trained secretary, Michelle
Barger. Hughes issued a verbal reprimand to Rayborn for one particularly bad
confrontation with Barger that occurred in front of students and parents, and
Hughes informed Rayborn that she had discussed an involuntary transfer with
Bourgeois. According to Rayborn, Hughes specified that the reprimand was
issued in part because she did not give the administration “wiggle room.”
Hughes further stated that Rayborn’s practice of voicing her concerns was
becoming a problem and that she needed to be a “professional.”
      Near the end of a school administration meeting addressing medication
management and documentation and other health-related issues, a question
was posed regarding whom to contact in the event of a medical emergency.
Bourgeois announced that whether a nurse was present or not, any response
to a medical emergency should be referred to 911. Later, a student passed out
in the cafeteria. Nobody informed Rayborn, who was in her office, until after
911 had been called and other medical professionals had arrived on the scene.



      2 Bourgeois responded that HDC did not need a 504 plan because “she was stable with
good grades.” Bourgeois also questioned, “what does a nurse have to do with 504.”
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Upset, Rayborn went to Bourgeois’s office and protested her exclusion from the
medical emergency, arguing that her absence jeopardized children’s safety and
lives. Bourgeois said, “[w]e didn’t need you” and reminded her of the meeting
in which she had decided 911 would be called whether the nurse was on
campus or not. Rayborn exited Bourgeois’s office repeating, “unbelievable.” Id.
        After that incident, Hughes reprimanded Rayborn again and issued her
a mandatory transfer to another school within the BPSS. Hughes informed
Rayborn that she agreed with Rayborn about student safety, but she could not
condone     “insubordinate”   conduct.       Rayborn’s   transfer   was    effective
immediately and she was not allowed to return to Parkway without an escort.
        Rayborn found the transfer unsatisfactory. She was no longer at
Parkway with her children and she had a list of concerns regarding the
facilities at her new school. Rayborn’s pay and benefits, however, remained
unchanged.
        Rayborn filed two grievances, but BPSB took no formal action. Rayborn
claims Hughes subsequently issued a false evaluation of Rayborn, accusing her
of excessive absences and failure to complete a proposed wellness program.
Within a few months of the transfer, Rayborn resigned and found work
elsewhere because she “was afraid to go back. They had forced [her] out of [her]
job.”
        Rayborn sued BPSB, and its insurance provider, Ace American
Insurance Company, as well as Bourgeois and Hughes in their official and
individual capacities (collectively, “Defendants”). She claimed Defendants
were liable under 42 U.S.C. § 1983 for retaliating against her for expressing
her views about the administration’s inadequacies in handling various medical
emergencies—including the suicide of HDC—in violation of the First
Amendment. She also claimed Defendants impugned her liberty and
reputational interests in violation of the Fourteenth Amendment. Finally, she
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                                       No. 16-30903
claimed BPSB violated the Louisiana whistleblower law and Defendants’
actions amounted to intentional infliction of emotional distress.
          The district court granted summary judgment in favor of Defendants
on all of Rayborn’s claims. She timely appealed.
                                 STANDARD OF REVIEW
      We review “a grant of summary judgment de novo, applying the same
standard as the district court.” Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244,
246 (5th Cir. 2003). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In deciding
whether a fact issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the nonmoving party.” Wilson v.
Tregre, 787 F.3d 322, 325 (5th Cir. 2015). We “may affirm the district court’s
summary judgment on any ground raised below and supported by the record.”
Id. (quoting Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir.
2014)).
                                       DISCUSSION
                         I. Louisiana Revised Statute § 23:967
      Rayborn first challenges the district court’s dismissal of her state-law 3
whistleblower claim under Louisiana Revised Statute § 23:967. 4 Rayborn


      3  The district court exercised its discretion to maintain supplemental jurisdiction
pursuant to 28 U.S.C. § 1367 over her state-law claim. See Del-Ray Battery Co. v. Douglas
Battery Co., 635 F.3d 725, 731 (5th Cir. 2011).

      4   The statute states:
      An employer shall not take reprisal against an employee who in good faith, and
      after advising the employer of the violation of law: (1) Discloses or threatens to
      disclose a workplace act or practice that is in violation of state law. (2) Provides
      information to or testifies before any public body conducting an investigation,
      hearing, or inquiry into any violation of law. (3) Objects to or refuses to
      participate in an employment act or practice that is in violation of law.
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contends that the district court erred when it used federal jurisprudence
associated with Title VII to analyze her claim under the Louisiana
whistleblower statute. As Rayborn points out, this court has noted that
“§ 23:967 seems to offer broader protections” than Title VII. Schroeder v.
Greater New Orleans Fed. Credit Union, 664 F.3d 1016, 1026 (5th Cir. 2011).
Nonetheless, our precedent, and that of the Louisiana state courts, has
consistently cited to Title VII standards in interpreting § 23:967. See Strong v.
Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 805 n.1 (5th Cir. 2007) (“the
standards governing both claims [under Title VII and § 23:967] are materially
indistinguishable”); Smith v. AT&T Sols., 90 F. App’x 718, 723 (5th Cir. 2004)
(“[w]hile the Louisiana Supreme Court has not spoken directly on whether
[Title VII’s] framework applies to section 23:967 cases, Louisiana courts have
often looked to federal anti-discrimination jurisprudence in interpreting
Louisiana’s anti-discrimination statutes”); Imbornone v. Treasure Chest
Casino, No. 04-2150, 2006 WL 1235979, at *3 (E.D. La. May 3, 2006); Tatum
v. United Parcel Serv., Inc., 79 So. 3d 1094, 1103–04 (La. Ct. App. 2011).
Rayborn provided no Louisiana cases interpreting § 23:967 otherwise.
Accordingly, we apply the standards and requirements of Title VII when
analyzing her retaliation claims under § 23:967.
       Applying federal Title VII standards, Rayborn’s claim under § 23:967
fails. An employee “establishes a prima facie case for unlawful retaliation by
proving (1) that she engaged in activity protected by Title VII, (2) that an



La. Stat. Ann. § 23:967(A)(1)–(3) (emphasis added). The statute defines “reprisal” as
       firing, layoff, loss of benefits, or any discriminatory action the court finds was
       taken as a result of an action by the employee . . . ; however, nothing in this
       Section shall prohibit an employer from enforcing an established employment
       policy, procedure, or practice or exempt an employee from compliance with
       such.
       Id. (C)(1) (emphasis added).
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adverse employment action occurred, and (3) that a causal link existed between
the protected activity and the adverse employment action.” Long v. Eastfield
Coll., 88 F.3d 300, 304 (5th Cir. 1996) (citing McMillan v. Rust Coll., Inc., 710
F.2d 1112, 1116 (5th Cir. 1983)). For the purposes of § 23:967, an adverse
employment action “is defined as ‘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.’” Tatum, 79 So. 3d at 1104 (quoting Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998)). 5
       Rayborn’s claim fails because she cannot show an adverse employment
action. Rayborn claims that she was transferred and reprimanded because of
her protected activity, and she further argues that she effectively received a
constructive discharge.
       This court has said that “a transfer or reassignment can be the
equivalent of a demotion [which is a significant change in employment status],
and thus constitute an adverse employment action.” Thompson v. City of Waco,
764 F.3d 500, 503 (5th Cir. 2014) (citing Alvarado v. Tex. Rangers, 492 F.3d
605, 612–15 (5th Cir. 2007)). “To be the equivalent to a demotion, a transfer
need not result in a decrease in pay, title, or grade; it can be a demotion if the
new position proves objectively worse—such as being less prestigious or less



       5 In 2006, the Supreme Court issued Burlington North Santa Fe Railway Co. v. White,
in which the Court rejected limiting Title VII retaliation claims to “ultimate employment
actions,” such as “hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” 548 U.S. 53, 64-67.
Instead, the Court found that Title VII retaliation “is not limited to discriminatory actions
that affect the terms and conditions of employment.” Id. at 64. Despite being five years after
Burlington, the Tatum court cited a pre-Burlington standard in addressing retaliation under
§ 23:967. See 79 So. 3d 1094, 1104. It is unclear if the Tatum court did so intentionally.
Nonetheless, we have found no Louisiana state case applying the Burlington standard to a
§ 23:967 claim and therefore we follow the Tatum court’s lead in applying a pre-Burlington
standard.
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interesting or providing less room for advancement.” Id. (quoting Alvarado,
492 F.3d at 613 (alterations omitted)). Rayborn’s transfer to another school
within the BPSS is not an adverse employment action. She did not lose any
pay or benefits. There is no evidence that she suffered a loss of responsibilities.
Although her office facilities at the new school were subjectively less desirable,
and she no longer worked at the school her children attended, these differences
do not amount to a demotion. Thus, she did not suffer a significant change in
employment status.
      Moreover, the evidence does not support Rayborn’s allegation that BPSB
constructively discharged her. To show constructive discharge in Louisiana, a
plaintiff must show that “the employer intended to and deliberately created
such intolerable working conditions that the employee was forced into
involuntary resignation.” Plummer v. Marriott Corp., 654 So. 2d 843, 849 (La.
Ct. App. 1995), writ denied, 660 So. 2d 460 (La. 1995). The extent of the
intolerable conditions must lead a reasonable person to feel “compelled to
resign.” Id. “The intolerable conduct must be of a greater severity or
pervasiveness than the minimum required to prove a hostile working
environment[.]” Id. Cold stares, rude conduct, and a transfer to a subjectively
less desirable location simply do not meet this high standard, even when
viewing Rayborn’s allegations in the most favorable light.
      Finally, Rayborn’s reprimands do not amount to a “significant change in
employment status.” Tatum, 79 So. 3d at 1104 (quoting Ellerth, 524 U.S. at
761). Accordingly, Rayborn has failed to show she was subjected to an adverse
employment action and her claim under § 23:967 fails.
                        II. First Amendment Retaliation
       Rayborn brought claims under 42 U.S.C. § 1983 against BPSB, Hughes,
and Bourgeois in their official and individual capacities, alleging that they
violated Rayborn’s rights to “protest, oppose, and report violations of child
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                                  No. 16-30903
welfare, neglect of children, and proper care” under the First Amendment. The
district court granted summary judgment against Rayborn on these claims. We
address her arguments in two parts.
 A. Claims against BPSB, Hughes, and Bourgeois in their official capacities
      “Municipal liability under 42 U.S.C. § 1983 requires proof of 1) a
policymaker; 2) an official policy; 3) and a violation of constitutional rights
whose ‘moving force’ is the policy or custom.” Rivera, 349 F.3d at 247 (citing
Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). “[I]solated
unconstitutional actions by municipal employees will almost never trigger
liability.” Id. (internal quotation marks omitted). The district court granted
summary judgment in BPSB’s favor because it determined Rayborn failed to
identify any official school board policy or custom in accordance with which the
allegedly unconstitutional conduct occurred.
      Before us, Rayborn has failed to identify any policy or custom upon which
her transfer was predicated other than to say, “[t]here is no reason to accept”
that the actions “were not part of an unwritten practice or custom” of BPSB.
Rayborn contends “Hughes told [her] the punishment was a joint decision
between [Hughes], Bourgeois, [the] Assistant Superintendent, and others.” But
this does not show anything more than an isolated incident by municipal
employees. The district court did not err in determining that there was no
genuine issue of fact as to an underlying municipal policy.
      Further, suits against officials in their official capacities “generally
represent only another way of pleading an action against an entity of which an
officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting
Monell, 436 U.S. at 690 n.55). Thus, Rayborn’s claims against Hughes and
Bourgeois in their official capacities also fail. See id. at 166 (“[An official-
capacity suit] is not a suit against the official personally, for the real party in
interest is the entity.”).
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                                  No. 16-30903
B. Claims against Hughes and Bourgeois in their individual capacities
      The district court determined that Hughes and Bourgeois were entitled
to qualified immunity. “To overcome an official’s qualified immunity defense,
a plaintiff must show that the evidence, viewed in the light most favorable to
him, is sufficient to establish a genuine dispute (1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established
at the time of the challenged conduct.” Cutler v. Stephen F. Austin State Univ.,
767 F.3d 462, 469 (5th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011) (internal quotation marks omitted)). The district court concluded
that Rayborn could not meet her burden as to the first prong of the test.
       “[T]he First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). To determine whether a public
employee’s speech is entitled to protection, courts undertake a two-step
inquiry. The first step “requires determining whether the employee spoke as a
citizen on a matter of public concern.” Id. at 418. “If the answer is no, the
employee has no First Amendment cause of action based on his or her
employer’s reaction to the speech.” Id. If the answer is yes, then a court must
ask whether the “government entity had an adequate justification for treating
the employee differently from any other member of the general public.” Id. The
Supreme Court explained, however, that “[a] government entity has broader
discretion to restrict speech when it acts in its role as employer, but the
restrictions it imposes must be directed at speech that has some potential to
affect the entity’s operations.” Id.
      Rayborn contends that the notes of her encounters with HDC, in which
she detailed the “red flags” that turned Bourgeois and Hughes against her,
were subpoenaed in connection with HDC’s parents’ lawsuit against BPSB and
that under Supreme Court precedent those notes should receive First
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Amendment protection. In Lane v. Franks, the Supreme Court considered
testimony given by an individual pursuant to a subpoena and concluded:
“Truthful testimony under oath by a public employee outside the scope of his
ordinary job duties is speech as a citizen for First Amendment purposes. That
is so even when the testimony relates to his public employment or concerns
information learned during that employment.” 134 S. Ct. 2369, 2378 (2014)
(emphasis added). It was undisputed in Lane that “Lane’s ordinary job
responsibilities did not include testifying in court proceedings.” Id. n.4. In
Garcetti v. Ceballos, however, the Supreme Court held that “when public
employees make statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer discipline.” 547 U.S. at
421 (emphasis added).
      Rayborn alleges the following speech is constitutionally protected: notes
she made regarding HDC, including her personal observations and
documentation of HDC’s health and status; the submission and explanation of
the notes to her superiors; her conversation with Bourgeois in which she stated
that there were “red flags” regarding HDC; her explanation of the red flags;
her recounting that she had previously warned the assistant principal about
her concerns for the student’s health; and her insistence that HDC should be
on a section 504 plan. Rayborn argues the district court erred when concluding
that her job description and duties as a school nurse required this speech.
      The district court correctly concluded that all of Rayborn’s actions that
she claims are protected by the First Amendment, including offering her notes
in accordance with the subpoena requests, were made according to her official
duties. The test is not whether she was required to engage in the speech, but
rather   whether    she   made   the   speech   “pursuant     to   [her]   ‘official
responsibilities’” and whether that speech is “ordinarily within the scope of
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[her] duties.” Lane, 134 S. Ct. at 2379 (quoting Garcetti, 547 U.S. at 424). The
district court observed that Rayborn’s job responsibilities were “maintaining
complete records on all school nurse activities” and these include “assessment
and evaluation of individual student health and behavior patterns; conferences
with teachers and parents; and routine follow-up on reported health concerns
of students.” Rayborn stresses the Supreme Court’s caution about over-
reliance on written job descriptions, Garcetti, 547 U.S. at 424–25, but she fails
to create any genuine issue of material fact as to whether this speech was made
pursuant to her official duties as school nurse.
      Rayborn has not shown that Hughes and Bourgeois violated her first
amendment right as an employee “to speak as a citizen addressing matters of
public concern.” Id. at 417. Thus, Hughes and Bourgeois’s qualified immunity
defense prevails, and Rayborn’s § 1983 claim against them fails.
       III. Fourteenth Amendment Liberty and Reputational Interests
      Rayborn claims that Defendants violated her Fourteenth Amendment
rights to her good name, reputation, and integrity. She argues she was
subjected to a hostile working environment in which Bourgeois openly mocked
her and staff disrespected her. She was reprimanded twice, and, when she was
involuntarily removed from Parkway, she was “paraded and escorted out as if
she were a common criminal.” She could not return to the school her children
attended without an escort. She was denied any opportunity to rebut the
allegations made against her in either of the reprimands she received because
BPSB refused to hold a hearing. As a result, she lost the support of her friends,
her church community, and the respect of former colleagues, and she has put
her house on the market.
      “It is now beyond any doubt that discharge from public employment
under circumstances that put the employee’s reputation, honor or integrity at
stake gives rise to a liberty interest under the Fourteenth Amendment to a
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procedural opportunity to clear one’s name.” Rosenstein v. City of Dall., 876
F.2d 392, 395 (5th Cir. 1989) (collecting cases). The district court correctly
noted, however, that “reputation alone [is not] a constitutionally protected
interest.” Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 256 (5th Cir. 1984).
“This court employs a seven-element ‘stigma-plus-infringement’ test to
determine whether § 1983 affords a government employee a remedy for
deprivation of liberty without notice or an opportunity to clear his name.”
Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006). To succeed on
a procedural due process claim under the Fourteenth Amendment, a plaintiff
must show the following:
      (1) he was discharged; (2) stigmatizing charges were made against
      him in connection with the discharge; (3) the charges were false;
      (4) he was not provided notice or an opportunity to be heard prior
      to the discharge; (5) the charges were made public; (6) he requested
      a hearing to clear his name; and (7) the employer denied the
      request.

      Id. As discussed above, BPSB never discharged Rayborn. Thus, she
cannot meet the first element of the test, and her claim fails.
                IV. Intentional Infliction of Emotional Distress
      Finally, Rayborn appeals the district court’s grant of summary judgment
in favor of Defendants on her claim of intentional infliction of emotional
distress. Rayborn argues she was shunned, subjected to two “unfounded”
reprimands, involuntarily transferred away from the school her children
attended, barred from her children’s school, and threatened because “she did
the right thing” when she tendered her notes and statements regarding HDC’s
suicide. As noted by the district court, Rayborn claims to have suffered
fibromyalgia, stress, anxiety, and paranoia, and she has lost interest in
activities she previously found enjoyable as a result of these actions.



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                                 No. 16-30903
      To recover on a claim of intentional infliction of emotional distress in
Louisiana, “a plaintiff must establish (1) that the conduct of the defendant was
extreme and outrageous; (2) that the emotional distress suffered by the
plaintiff was severe; and (3) that the defendant desired to inflict severe
emotional distress or knew that severe emotional distress would be certain or
substantially certain to result from his conduct.” White v. Monsanto Co., 585
So. 2d 1205, 1209 (La. 1991). As the district court correctly noted, “[t]he
distress suffered by the employee must be more than a reasonable person could
be expected to endure.” Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1027 (La.
2000). Indeed, the Supreme Court of Louisiana has indicated that liability only
rests where “the conduct has been so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Id. at 1022
(quoting Restatement (Second) of Torts § 46). We agree with the district court
that Rayborn failed to show any of the Defendants’ conduct was extreme and
outrageous or more than a reasonable person could be expected to endure.
                                 CONCLUSION
      For the aforementioned reasons, we AFFIRM the district court on all
issues.




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                                  No. 16-30903


JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part:
      Though I concur in the majority opinion as to most of Rayborn’s claims,
I write separately to explain my disagreement with the majority’s resolution of
Rayborn’s claim under the Louisiana Whistleblower Statute. As the majority
identifies, a transfer that is the equivalent of a demotion constitutes an adverse
employment action for the purposes of this statute. See, e.g., Sharp v. City of
Hous., 164 F.3d 923, 932 (5th Cir. 1999) (discussing plaintiff’s federal
retaliation claim under 42 U.S.C. § 1983); see also Haire v. Bd. of Supervisors
of La. State Univ., 719 F.3d 356, 367 (5th Cir. 2013) (noting that analysis of
reprisal under Louisiana Whistleblower statute mirrors that of retaliation
claims under federal law); Tatum v. United Parcel Serv., Inc., 79 So. 3d 1094,
1104 (La. 2012) (applying Title VII precedent to define what constitutes a
reprisal under Louisiana Whistleblower Statute). The majority also correctly
notes that “[t]o be equivalent to a demotion, a transfer need not result in a
decrease in pay, title, or grade; it can be a demotion if the new position proves
objectively worse—such as being less prestigious or less interesting or
providing less room for advancement.”        Sharp, 164 F.3d at 933 (citations
omitted).
      Though the majority therefore recites the correct standard for when a
transfer constitutes an adverse employment action, it errs by failing to
consider whether any reasonable jury could find that Rayborn’s transfer
amounted to a demotion, instead inappropriately drawing its own conclusions
from the disputed facts. Whether a transfer amounts to a demotion is a
question of fact to be resolved by a jury—not by a judge on summary judgment.
Id. It is well established that this court, when reviewing a district court’s grant
of summary judgment, does not weigh evidence or decide issues of disputed

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                                  No. 16-30903
fact. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). Instead, we draw all
reasonable inferences in favor of the non-movant and determine only whether
any reasonable jury presented with that evidence could find in her favor. Id.
      It is clear from the record that Rayborn has created a genuine dispute of
fact on this issue. Rayborn provided summary judgment evidence that she was
reassigned as a disciplinary measure to nursing facilities that were unclean,
devoid of safe disposal for used needles, and that lacked the space, equipment,
and privacy to provide adequate medical care to her students. Though she did
not suffer a decrease in pay, she contends that these conditions prevented her
from fully exercising her nursing skills or generally succeeding in her position.
Rayborn’s evidence that her new position was objectively worse than her prior
position is just as strong as that in other cases in which we found that transfers
without reductions in salary were adverse employment actions. See Sharp,
164 F.3d at 926, 928, 933 (jury could conclude that Plaintiff’s transfer was a
demotion in light of evidence that her initial assignment to the horse-mounted
law enforcement unit was more “elite” than her subsequent assignment to a
“less prestigious” teaching post at the Police Academy); Click v. Copeland, 970
F.2d 106, 110 (5th Cir. 1992) (jury could find that intradepartmental transfer
without a reduction in salary was a retaliatory demotion based on evidence
that the new position was “not as interesting or prestigious” and “few people
transferred voluntarily” to the new position); c.f. Mitchell v. Univ. of La. Syst.,
154 F. Supp. 3d 364, 378–80, 404–05 (M.D. La. 2015) (reasonable jury could
find that transfer to a different programmer analyst position within the
university was a demotion based on Plaintiff’s evidence that her new work
environment was dysfunctional and she was required to perform more
secretarial rather than “higher level” tasks, even though she kept the same
pay and Defendant called it a “lateral move”). A reasonable jury, presented
with Rayborn’s evidence that she was transferred as punishment to a new
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   Case: 16-30903    Document: 00514333412     Page: 17   Date Filed: 02/02/2018



                                No. 16-30903
position that was objectively worse due to specific, concrete deficiencies that
interfered with her work could conclude that Rayborn suffered an adverse
employment action.
      Accordingly, I would hold that summary judgment on this issue was
improper and would vacate the district court’s dismissal of Rayborn’s claim
under the Louisiana Whistleblower Statute and remand for further
proceedings.




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