Margaret Herster; Scott Sullivan v. Board of Supervisors of Louisiana State University, et al.

Margaret Herster (“Herster”) and her husband Scott Sullivan

(“Sullivan”) appeal the dismissal of their claims against the Board of

Supervisors of Louisiana State University (“LSU”) related to alleged gender

discrimination. Prior to the jury trial for this case, the district court granted

LSU’s motion for summary judgment dismissing Herster’s Louisiana state law

spoliation claim. Subsequently at trial, the district court granted LSU’s

motions for judgment as a matter of law dismissing Herster’s Title VII gender

discrimination in pay claim and her Louisiana whistleblower statute claim.

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Sullivan’s claim for loss of consortium was also dismissed. Herster and

Sullivan assert that the district court erred in dismissing their claims. We

disagree. For the reasons set out below, we AFFIRM.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

a. Factual Background

Herster and Sullivan began their employment at LSU in 2009—Herster

as a part time Instructor of Digital Art in LSU’s College of Art + Design (the

“School of Art”) and Sullivan as a Professor of Law at LSU’s Law Center (the

“Law Center”). During the interview process for his Professor of Law position

at the Law Center, Sullivan inquired about the possibility of his wife, Herster,

also obtaining a faculty position at LSU. After receiving Herster’s credentials

and qualifications, the School of Art agreed to employ Herster. The Law Center

initially provided some of the funding for Herster’s position.

Once Herster began her employment at the School of Art, she

immediately began to believe that she was being asked to do substantially

more work than what her part-time Instructor position should entail. In

addition to teaching classes, the Director of the School of Art, Rod Parker

(“Parker”), appointed Herster as the Area Coordinator of Digital Art, a position

that required her to perform administrative duties.1 Because Herster believed

that Parker was “trying to get [her] to do twice the work of a full-time faculty

member at half the pay of a full-time faculty member” she often asked Parker

to clarify what her duties were and whether she could receive more than her

$25,000 yearly salary.

At trial, Herster stated that Parker’s responses to her requests ranged

from, “Okay, I hear you. That does sound right,” to “I’ll try and do something;

I’ll go talk to someone about it,” to allegedly threatening her on one occasion.

1 Generally, a faculty member is not compensated more for being an Area Coordinator.

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According to Herster, in November 2009 Parker responded to her request for

more pay by stating, “I thought you were a trailing spouse. I thought you were

going to have children and be happy, like Jackie Parker.”2 Parker additionally

told Herster that she was acting like an “eight year old” and a “princess.”

Herster stated that Parker repeatedly called her a trailing spouse and

remarked that she should just have babies and be happy.

In January 2011, Herster’s title of part-time Instructor of Digital Art was

changed to a full-time Professional-in-Residence position. Although Herster

claims that her duties at the School of Art did not change, Herster’s full time

Professional-in-Residence title increased her yearly salary to $41,000. The

School of Art’s Professional-in-Residence appointment had to be renewed

annually and was not a tenure track position.

Even with the title change, Herster claimed that she was compensated

less than her male colleagues with similar duties. Herster subsequently filed

a series of internal complaints against the School of Art alleging sex

discrimination, sexual harassment, and the illegal collection of course fees.3

Herster’s internal complaints of sexual discrimination and harassment to

LSU’s Human Resources department led to Herster filing a charge with the

EEOC alleging that LSU discriminated against her because of her gender and

that she had been subjected to a hostile work environment.4

In February 2012, Herster sent a letter to the Dean of the School of Art,

Ken Carpenter (“Carpenter”), stating that course fees were being improperly

collected from students. At the beginning of classes for each semester, the

professors and instructors in the School of Art were asked to pass out course

2 Jackie Parker was another woman Parker referred to as a “trailing spouse” at the

School of Art.

3 After an internal investigation of Herster’s complaints, LSU found no evidence of sex

discrimination, harassment, or hostile work environment.

4 Herster received a notice of her right to sue from the EEOC in January 2013.

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fee forms to students interested in paying the School of Art directly for art

supplies such as special inks, screens, paints, clay, and similar items that

would be used during classes. The students at the School of Art were offered

this option as an alternative to purchasing all of the supplies for each class

independently.

Because Herster believed that the course fees imposed on the School of

Art students were illegal, she told Carpenter that “[t]he disparity between the

School of Art’s practices and University policy and state law are serious. . . .

[T]he School of Art is engaged in a surreptitious tuition raise in violation of the

Louisiana Constitution.” An internal audit by LSU indicated that the School

of Art’s imposition of the course fees had not been approved by the Louisiana

state legislature. The audit report concluded that since 2010, the School of Art

had charged approximately $28,000 annually in unapproved course fees and

that some of the fees were used for purposes contrary to LSU policy. Some of

the course fees were reportedly used to purchase items such as large screen

monitors, scanners, and iPads for faculty members rather than for the

intended purpose of purchasing art supplies for student use in the classroom.

In March 2012, the day after Carpenter forwarded Herster’s course fee

letter to Parker, Parker sent an email to Herster advising her that a faculty

member panel would be conducting an annual reappointment review within

the month to evaluate whether to renew her Professional-in-Residence

appointment. The faculty member panel would also review whether three other

faculty members’ contracts should be renewed at this time. Professor Kimberly

Arp (“Arp”), the School of Art’s Tenured-Faculty Coordinator, was the chair of

the faculty member panel determining whether Herster’s Professional-in-

Residence appointment should be renewed.

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The faculty member panel vote concluded with the decision not to renew

Herster’s appointment—fifteen faculty members voting against the

appointment renewal and two faculty members voting for the appointment

renewal. In an official report of the meeting required by LSU policy, Arp stated

that one of the main reasons for the decision was that Herster’s concept of the

Professional-in-Residence position did not match with the School of Art’s

expectations of her. Arp pointed out that Herster refused to teach certain

courses, received poor teaching evaluations, and lacked sufficient creative

activity. Herster internally appealed the decision to have it reconsidered,

which resulted in another vote against renewal of her Professional-in-

Residence appointment. In the report from the second meeting, Arp recounted

the same reasons mentioned previously but provided more detail, and noted

that Herster’s lack of collegiality with faculty influenced the decision.

Herster requested that Arp provide his personal notes from the faculty

member panel meeting to her. Arp used his meeting notes to create his official

report of the decision not to renew Herster’s appointment. At first, Carpenter

asked Arp to provide his notes to Herster but later emails from LSU’s Human

Resources department and Parker advised Arp not to turn over his notes to

Herster. After the Executive Vice Chancellor and Provost at LSU approved the

School of Art’s decision not to renew Herster’s appointment, Arp shred his

notes from the faculty member panel meeting. Arp’s usual practice was to

shred his notes after the employment decision from the meeting was made

final.

LSU subsequently terminated Herster in January 2013 after her

Professional-in-Residence appointment term ended.

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b. Procedural History

In January 2013, Herster and Sullivan filed this lawsuit against LSU

and individual defendants associated with LSU alleging numerous state law

and federal claims. Relevant to this appeal, before the jury trial began, the

district court granted LSU’s motion for summary judgment dismissing

Herster’s Louisiana state law spoliation claim. Herster’s claims regarding

gender discrimination in pay in violation of Title VII, hostile work environment

in violation of Title VII, retaliation in violation of Title VII, and Louisiana’s

whistleblower statute were presented to a jury at trial in December 2016. After

Herster’s case-in-chief, LSU moved for judgments as a matter of law on

Herster’s claims. The district court granted LSU’s motions for judgment as a

matter of law for Herster’s Title VII gender discrimination in pay claim, Title

VII hostile work environment claim, and Louisiana whistleblower statute

claim. The district court permitted the two Title VII retaliation claims against

LSU to be submitted to the jury. The jury reached a verdict against Herster for

both of her retaliation claims. Herster and Sullivan timely appealed.

II. DISCUSSION

Herster and Sullivan do not challenge on appeal the jury’s verdict, the

dismissal of Herster’s Title VII hostile work environment claim, or the

dismissal of the claims against the individual defendants associated with LSU.

Accordingly, the three issues on appeal are: (1) whether the district court

properly granted LSU’s motion for judgment as a matter of law for Herster’s

Title VII gender discrimination in pay claim; (2) whether the district court

properly granted LSU’s motion for judgment as a matter of law for Herster’s

Louisiana whistleblower statute claim; and (3) whether the district court

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properly granted LSU’s motion for summary judgment for Herster’s Louisiana

state law spoliation claim.5 This court will address each issue in turn.

a. Standard of review for the Title VII gender discrimination

in pay claim and Louisiana whistleblower statute claim

This court reviews the district court’s ruling on a motion for judgment as

a matter of law de novo. Carmona v. Sw. Airlines Co., 604 F.3d 848, 854 (5th

Cir. 2010). All of the evidence in the record must be examined as a whole,

including evidence that does not support the non-moving party’s case. Id. “[W]e

must view the evidence in the light most favorable to the non-moving party

and draw all reasonable inferences in favor of the non-moving party.” Id.

Credibility determinations, weighing the evidence, and drawing reasonable

inferences from the facts are within the province of the jury. Palasota v.

Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir. 2003) (per curiam). A motion

for judgment as a matter of law is properly granted where there is no legally

sufficient evidence upon which the jury could find for a party on its claim.

Carmona, 604 F.3d at 855. “There is no legally sufficient evidence upon which

a jury could find for a party where the facts and inferences point so strongly

and overwhelmingly in favor of the moving party that reasonable jurors could

not arrive at a contrary verdict.” Id.

b. Title VII gender discrimination in pay claim

Herster argues that this is a rare case where there is direct evidence of

discrimination. Even if this court holds that there was no direct evidence

presented by Herster, Herster avers that she presented sufficient

5 Sullivan appealed the dismissal of his loss of consortium claim. However, Sullivan’s

loss of consortium claim is waived because it was not briefed on appeal. See Cinel v. Connick,

15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not raised and argued

in its initial brief on appeal. . . . A party who inadequately briefs an issue is considered to

have abandoned the claim.”); see also McNeal v. Roberts, 129 F. App’x 110, 111 (5th Cir. 2005)

(per curiam) (unpublished) (dismissing claim for loss of consortium because of the failure to

brief on appeal).

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circumstantial evidence to satisfy the McDonnell Douglas framework for her

discrimination claim. We disagree.

Under Title VII, an employer cannot “fail or refuse to hire or [ ] discharge

any individual, or otherwise [ ] discriminate against any individual with

respect to [her] compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). “A Title VII

plaintiff may make out a prima-facie case of discrimination using either direct

or circumstantial evidence.” Etienne v. Spanish Lake Truck & Casino Plaza,

L.L.C., 778 F.3d 473, 475 (5th Cir. 2015) (citing Portis v. First Nat’l Bank, 34

F.3d 325, 328 (5th Cir. 1994)).



The framework of McDonnell Douglas Corp. v. Green and its progeny

applies to Title VII pay discrimination claims when there is no direct evidence

of discrimination, and the plaintiff must prove discrimination by

circumstantial evidence. See 411 U.S. 792, 802–05 (1973); Giles v. Shaw Sch.

Dist., 655 F. App’x 998, 1002 (5th Cir. 2016) (unpublished) (citing Lee v.

Conecuh Cty. Bd. of Educ., 634 F.2d 959, 962 (5th Cir. 1981)). One of the

requirements under the McDonnell Douglas framework for Herster’s gender

discrimination in pay claim is that Herster must show that she was paid less

than a proffered comparator, not in her protected class, for work requiring

substantially the same responsibility. See Taylor v. United Parcel Serv., Inc.,

554 F.3d 510, 522–23 (5th Cir. 2008). The proffered comparator must be

similarly situated to Herster for Herster to satisfy the McDonnell Douglas test.

Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259–61 (5th Cir. 2009). A variety

of factors are considered when determining whether a comparator is similarly

situated, including job responsibility, experience, and qualifications. See

Lavigne v. Cajun Deep Founds., L.L.C., 654 F. App’x 640, 646 (5th Cir. 2016)

(per curiam) (unpublished).



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Here, the district court correctly concluded that Herster failed to show

that she “was paid less than a [male comparator] for work requiring

substantially the same responsibility.” See Taylor, 554 F.3d at 522. “By

properly showing a significant difference in job responsibilities, [LSU] can

negate one of the crucial elements in [Herster’s] prima facie case” of

discrimination. Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644 F.2d

1071, 1074 (5th Cir. Unit A May 1981); see also Fields v. Stephen F. Austin

State Univ., 611 F. App’x 830, 832 n.2 (5th Cir. 2015) (per curiam)

(unpublished) (“[A] plaintiff who intermittently performed the same duties as

a comparator was not sufficient to rebut the . . . differences in responsibility.”

(quotation marks omitted)).

Frederick Ostrenko (“Ostrenko”) and Jesse Allison (“Allison”), presented

as comparators by Herster, were both Assistant Professors rather than

Professionals-in-Residence. The Assistant Professor position is a tenure track

role that requires research as a condition of employment. In contrast to an

Assistant Professor, a Professional-in-Residence like Herster was not required

to research or seek to obtain research grants.

Indeed, Herster’s proffered comparators were called on to do more than

Herster. Ostrenko’s position required him to teach in LSU’s Center for

Computation and Technology in addition to his responsibilities at the School

of Art. Allison taught in LSU’s School of Music and LSU’s Center for

Computation and Technology in tandem with his role at the School of Art. The

only comparator offered by Herster who was also a Professional-in-Residence,

Matthew Savage (“Savage”), had greater qualifications and responsibilities

than Herster. Specifically, Savage has a Ph.D, unlike Herster, and was

assigned a larger course load than Herster since he was assigned to teach five

lecture format classes in Art History.

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Thus, no reasonable juror could find that Herster presented sufficient

circumstantial evidence of discrimination because she failed to show “that [her]

circumstances [were] nearly identical to those of a better-paid employee who is

not a member of [her] protected class.” See Taylor, 554 F.3d at 523 (quotation

marks omitted); see also Mengistu v. Miss. Valley State Univ., No. 17-60667,

2018 WL 1108511, at *2 (5th Cir. Feb. 27, 2018) (per curiam) (unpublished)

(quoting Taylor, 554 F.3d at 523).

Herster additionally did not show direct evidence of discrimination. “The

McDonnell Douglas test is inapplicable where the plaintiff presents direct

evidence of discrimination.” See Portis, 34 F.3d at 328 (quoting Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)). “In the context of Title

VII, direct evidence includes any statement or written document showing a

discriminatory motive on its face.” Id. at 329. A statement or document which

shows “on its face that an improper criterion served as a basis—not necessarily

the sole basis, but a basis—for the adverse employment action [is] direct

evidence of discrimination.” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987,

993 (5th Cir. 2005).

Here, Parker’s comments, at most, infer that gender was a factor in the

decision concerning Herster’s compensation. See id. at 992 (“Direct evidence is

evidence which, if believed, proves the fact without inference or

presumption.”). Herster builds her case of direct evidence of discrimination

upon the faulty foundation of Parker’s “trailing spouse” commentary. To begin,

an individual can be referred to as a “trailing spouse” irrespective of his or her

gender. An inferential leap is also required to prove that Herster was paid less

because of her gender when analyzing Parker’s comments of “I thought you

were going to have children and be happy” and that Herster was acting like a

“princess.” Parker’s reference to another woman who he considered to be a

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trailing spouse, Jackie Parker, when delivering his remarks to Herster does

not amount to direct evidence of discrimination because an inference is

required to get from this statement to the conclusion that gender was a basis

for setting Herster’s compensation. Notably, Herster’s trial counsel even

stated, “Mr. Parker’s remark regarding [Herster] as a . . . trailing spouse that

takes care of her children and is happy infers gender” when arguing for the

denial of LSU’s motion for judgment as a matter of law for this claim.

Moreover, the evidence of the alleged direct discrimination presented by

Herster during the trial was simply much weaker than what this court has

accepted as direct evidence of discrimination in prior cases. In Portis v. First

National Bank of New Albany, the plaintiff sued her employer for gender

discrimination after her demotion. See 34 F.3d at 326. At the close of evidence,

the district court granted the defendant’s motion for judgment as a matter of

law. Id. The plaintiff’s testimony discussed several occasions where her

supervisor told her that she “wouldn’t be worth as much as the men would be

to the bank” and “she would be paid less because she was a woman.” Id. at 329.

This court held that no inference was required to conclude that the plaintiff

was treated differently because of her sex and therefore the statement

constituted direct evidence of discrimination. Id.

In Etienne v. Spanish Lake Truck & Casino Plaza, the plaintiff brought

a Title VII lawsuit alleging that she was not being promoted to a managerial

position because of her race. 778 F.3d at 474. This court held that the district

court granted the defendant’s motion for summary judgment in error because

direct evidence established plaintiff’s prima facie discrimination claim. See id.

at 477. The plaintiff presented an affidavit that stated that the general

manager allocated responsibilities to employees based on the color of their skin

and did not allow “dark skin black persons to handle any money.” Id. at 476.

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The general manager remarked on several occasions that he thought the

plaintiff “was too black to do various tasks.” Id.

In Jones v. Robinson Property Group, the plaintiff alleged that he was

not hired as a poker dealer because of being an African American. See 427 F.3d

at 990. Evidence was presented by the plaintiff that the poker room manager

responsible for the hiring decision stated “the[y] were not going to hire a black

person unless there were extenuating circumstances.” Id. at 993. One of the

employees stated that the poker room manager told him that, “maybe I’ve been

told not to hire too many blacks in the poker room.” Id. Additional evidence

showed that the poker room manager used racially derogatory terms often and

stated that “good old white boys don’t want black people touching their cards

in their face.” Id. This evidence constituted direct evidence of discrimination.

Id. As these cases demonstrate, Herster’s alleged direct evidence of

discrimination is far from the type of evidence that this court has previously

held to be direct evidence of discrimination.

Herster’s assertion that Parker’s comments amount to more than “stray”

remarks that constitute direct evidence of discrimination is likewise meritless.

Comments are not merely stray and may constitute direct evidence of

discrimination if the remarks are: (1) related to gender; “(2) proximate in time

to the challenged employment decision; (3) made by an individual with

authority over the challenged employment decision; and (4) related to the

challenged employment decision.” Etienne, 778 F.3d at 476. When the

proximity in time of the comments to the challenged employment decision is

unclear, the proximity in time factor can be satisfied when comments were

routinely made. Id. Similar to the previous direct evidence analysis, our

ultimate focus in applying this test “is on whether the comments prove[]

without inference or presumption[] that [gender] was a basis in employment

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decisions” at LSU. See id. (quoting Jones, 427 F.3d at 993) (quotation marks

omitted).

The proximity in time of Parker’s comments to the challenged

employment decision regarding Herster’s compensation is unclear. Also,

Parker’s alleged repetitive comments about Herster being a trailing spouse and

having babies still requires an inference to reach the conclusion that Herster’s

gender served as basis for her compensation. See id. The comments made by

Parker are stray remarks that fail to provide direct evidence of discrimination

for Herster’s gender discrimination in pay claim. See Wallace v. Methodist

Hosp. Sys., 271 F.3d 212, 222 (5th Cir. 2001) (“Where comments are vague and

remote in time they are insufficient to establish discrimination.” (quotation

marks and alterations omitted)).

In sum, because Herster failed to show either circumstantial evidence or

direct evidence of discrimination, the district court correctly granted LSU’s

motion for judgment as a matter of law dismissing this claim.

c. Louisiana whistleblower statute claim

The district court granted LSU’s motion for judgment as a matter of law

for Herster’s Louisiana whistleblower statute claim, LA. REV. STAT. § 23:967.

Herster sought to prove that LSU retaliated against her for disclosing that the

School of Art imposed unauthorized course fees that violated Article VII, § 2.1

of the Louisiana Constitution. It is undisputed that LSU did not receive

authorization from the Louisiana state legislature to collect the course fees

from students, which were intended to purchase art supplies such as special

inks, paints, and clay that would be used by students during classes.

Nevertheless, the district court properly dismissed Herster’s claim.

A violation of Louisiana’s whistleblower statute occurs if: (1) LSU

violated Louisiana law through a prohibited workplace practice; (2) Herster

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advised LSU of the violation; (3) Herster threatened to disclose or disclosed the

prohibited practice; and (4) Herster was terminated as a result of her threat to

disclose or because of the disclosure of the prohibited practice. Richardson v.

Axion Logistics, L.L.C., 780 F.3d 304, 306 (5th Cir. 2015). Herster must prove

that LSU “committed an actual violation of [Louisiana] law.” Wilson v. Tregre,

787 F.3d 322, 326 (5th Cir. 2015) (emphasis in original).

Article VII, § 2.1 of the Louisiana Constitution requires that any fee

assessed by the state of Louisiana and some of its subunits, including LSU, be

enacted by a two-thirds vote of the Louisiana state legislature. La. Pub.

Facilities Auth. v. All Taxpayers, et al., 868 So. 2d 124, 128–29 (La. Ct. App.

2003); see also No. 96-353 Op. La. Att’y Gen. (1996) (“As an arm of the state,

[LSU] is subject to the requirement of Article 7, Section 2.1(A) of the Louisiana

Constitution (1974), with respect to the increase of fees assessed by the

University.”). Article VII, § 2.1 of the Louisiana Constitution states:

Any new fee or civil fine or increase in an existing fee

or civil fine imposed or assessed by the state or any

board, department, or agency of the state shall require

the enactment of a law by a two-thirds vote of the

elected members of each house of the legislature.

LA. CONST. art. VII, § 2.1(A).

The term “fee” in Article VII, § 2.1 is not defined in the Louisiana

Constitution. The Louisiana Supreme Court has also not interpreted the

meaning of “fee” in Article VII, § 2.1. If the Louisiana Supreme Court has not

ruled on an issue, then this court makes an “Erie guess” and “determine[s] as

best we can” what the Louisiana Supreme Court would decide. See Harris Cty.

Tex. v. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015) (quotation marks

and alterations omitted); see also In re Katrina Canal Breaches Litig., 495 F.3d

191, 206 (5th Cir. 2007). Because there are varied uses of the word “fee” in the

laws of the state of Louisiana, it is unclear from a plain reading of Article VII,

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§ 2.1 of the Louisiana Constitution what meaning should be attributed to the

word. “[W]hen the language of the law is susceptible of different meanings, it

must be interpreted as having the meaning that best conforms to the purpose

of the law.” M.J. Farms, Ltd. v. Exxon Mobil Corp., 998 So. 2d 16, 27 (La. 2008)

(citing LA CIV. CODE art. 10; Fontenot v. Reddell Vidrine Water Dist., 836 So.

2d 14, 20 (La. 2003)).

We need not make an Erie guess about the meaning of “fee” here because

Herster failed to show that LSU actually violated the Louisiana Constitution.

Importantly, Herster fails to point to any authority that establishes that the

imposition of any type of course fee by the School of Art or LSU constitutes a

violation of Louisiana law. Herster’s and the LSU internal auditor’s asserted

beliefs that the course fee imposed by the School of Art constituted a violation

of the Louisiana Constitution is inadequate to prove an actual violation of

Louisiana law. “To qualify for protection under the Louisiana Whistleblower

Statute, a plaintiff must prove that his employer committed an actual violation

of state law.” Wilson, 787 F.3d at 326 (emphasis in original); see also Ross v.

Oceans Behavioral Hosp. of Greater New Orleans, 165 So. 3d 176, 180 (La. Ct.

App. 2014) (“The plaintiff must prove an actual violation of a state law, not just

a good faith belief that a law was broken.”) (emphasis in original); Accardo v.

La. Health Servs. & Indem. Co., 943 So. 2d 381, 386–87 (La. Ct. App. 2006)

(per curiam) (“[B]ased on the legislative history of the statute, which deleted

the phrase ‘reasonably believes is in violation of law’ and substituted the

phrase ‘that is in violation of state law’, it is appears that the legislature

intended the requirement of a violation of state law.”).

Herster’s argument based on the Louisiana First Circuit Court of

Appeal’s statement that “fees” are “those fees directly connected with LSU’s

principal governmental function of providing higher education” when it held

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that the “fee” definition does not entail charges for LSU football tickets is

similarly unavailing. See La. Pub. Facilities Auth., 868 So. 2d at 136. The court

only established that charges related to LSU football tickets fail to constitute

a “fee” in Article VII, § 2.1, and did not in any way affirmatively establish that

LSU’s imposition of an unapproved course fee amounts to a constitutional

violation. See id. Herster, again, is left with nothing more than an unverified

belief that there was a state law violation rather than the requisite proof of “an

actual violation of state law.” See Wilson, 787 F.3d at 326 (emphasis in

original).

Additionally, contrary to Herster’s belief that Article VII, § 2.1

encompasses “any and all new fees” at LSU, the intended scope of the definition

of “fee” in Article VII, § 2.1 has been interpreted by the Louisiana First Circuit

Court of Appeal and the Louisiana Attorney General as more constricted.6 In

Louisiana Public Facilities Authority, the Louisiana First Circuit Court of

Appeal rejected the contention that there was an intention to give a sweeping

interpretation to the term “fee” in Article VII, § 2.1 when it held that costs

charged by LSU for football tickets did not constitute a “fee” under the

constitutional provision. See 868 So. 2d at 136. The Louisiana Attorney

General also opined that charges imposed by LSU related to “student housing,

food services, book store merchandise, medical or veterinary services and

admittance to extracurricular events are not directly a part of the

governmental function of providing higher education, thus, charges for these

goods and services would not be considered fees” under Article VII, § 2.1 of the

Louisiana Constitution. See No. 1-165 Op. La. Att’y Gen. (2001). In light of both

6 This court is not bound by a decision of an intermediate Louisiana court or an opinion

of the Louisiana Attorney General but it can recognize these authorities as persuasive. See

Katrina Canal Breaches Litig., 495 F.3d at 206; see also Dunn v. City of Kenner, 187 So. 3d

404, 415 n.14 (La. 2016).

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of these readings of “fee,” Herster’s broad interpretation which includes “any

and all new fees” imposed by LSU is not instructive for this case.

Thus, the district court was correct to dismiss Herster’s claim under the

Louisiana whistleblower statute.

d. Spoliation claim

The district court properly granted LSU’s motion for summary judgment

dismissing Herster’s Louisiana state law spoliation claim. This court reviews

a district court’s order granting summary judgment de novo, viewing all

evidence in the light most favorable to the non-moving party and drawing all

reasonable inferences in that party’s favor. Pierce v. Dep’t of U.S. Air Force,

512 F.3d 184, 186 (5th Cir. 2007). “The court shall grant summary judgment 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).

“A genuine issue of material fact exists when the evidence is such that a

reasonable jury could return a verdict for the non-moving party.” Crose v.

Humana Ins. Co., 823 F.3d 344, 347 (5th Cir. 2016) (quoting Crownover v. Mid-

Continent Cas. Co., 772 F.3d 197, 201 (5th Cir. 2014)).

The Louisiana tort of spoliation of evidence is a cause of action for an

intentional destruction of evidence to deprive an opposing party of its use. See

Burge v. St. Tammany Par., 336 F.3d 363, 374 (5th Cir. 2003). Spoliation of

evidence may not be based on the negligent destruction of evidence. See id. at

374 n.5. Here, despite the possible factual issue about the amount of control

LSU had over Arp’s notes, Herster’s spoliation claim was properly dismissed.

No LSU policy required Arp to maintain, preserve, or provide his notes that

were taken during the faculty member panel meeting that included a

discussion of Herster’s reappointment. Herster additionally references no

evidence showing that LSU instructed or suggested to Arp to shred or

Case: 16-31242 Document: 00514414476 Page: 17 Date Filed: 04/04/2018

No. 16-31242

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intentionally destroy his notes from the meeting. See id. One of the required

elements for spoliation is “an intentional destruction of evidence.” See id. at

374; see also Hodges v. Mosaic Fertilizer LLC, 289 F. App’x 4, 7 (5th Cir. 2008)

(per curiam) (unpublished) (“Appellants cite no evidence, other than their mere

allegation, that tends to show that [the defendant] intentionally destroyed the

valve . . . [t]herefore, the district court correctly dismissed on summary

judgment Appellants’ spoliation of evidence claim.”); Zurich Am. Ins. Co. v.

Queen’s Mach. Co., 8 So. 3d 91, 94, 97–98 (La. Ct. App. 2009); Longwell v.

Jefferson Par. Hosp. Serv. Dist. No. 1, 970 So. 2d 1100, 1106 (La. Ct. App. 2007)

(holding that a spoliation claim cannot stand when the summary judgment

record is “devoid of evidence” that the defendant intentionally destroyed the

evidence). The district court correctly granted LSU’s motion for summary

judgment dismissing Herster’s spoliation of evidence claim.

I

For the foregoing reasons, we AFFIRM the judgment of the district court

dismissing Sullivan’s and Herster’s claims.

Editor's Comments: Cases like this one are very difficult to make.