Plaintiff appeals a judgment granting peremptory exceptions of no cause of action, dismissing all of her claims with prejudice, and dismissing her case with prejudice. For the following reasons, we affirm in part, reverse in part, and remand with instructions.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Dorothy Jackson, filed this wrongful termination suit, contending that her termination as a contractual tenured law professor violated her contractual rights, as well as her state constitutionally protected civil and property rights. The facts, as alleged in her petition, are as follows. At the time of her termination, Professor Jackson had been employed with the Southern University Law Center (the “Law Center”) and/or the Board of Supervisors for the Southern University and Agricultural and Mechanical College (“the Board”) for over eighteen years. On June 24, 2016, she formally entered into a clinical faculty contract/agreement with the Board and/or the Law Center, under the direction and control of the Board, for a continuous five-year period that would automatically renew every five years without the need for action on her part, unless terminated earlier for cause, by resignation, or retirement. In addition to teaching, she was a managing/supervising attorney at the Southern Elder Law Clinic.
In January 2016, Southern University was awarded a grant to service the elderly community. The Chancellor of the Law Center, John Pierre, tasked Professor Jackson with performing certain services under the grant, for which she received additional compensation. One such service was conducting elderly workshops around the Baton Rouge, Louisiana area. Following one such workshop, an attendee, Helen Plummer, asked Professor Jackson to draft her will. According to Professor Jackson, Ms. Plummer indicated that she wanted Professor Jackson to act as attorney for her succession; Professor Jackson complied with the request, designating herself as the attorney in the will she drafted for Ms. Plummer.
Following Ms. Plummers death on March 2, 2017, Ms. Plummers granddaughter, Trade Davis, who was “skipped over” (i.e., not bequeathed sums) by Ms. Plummer in her will, closed Ms. Plummers bank accounts and withdrew more than $300,000.00 from said accounts. Professor Jackson filed a petition for a temporary restraining order, injunction, and to recover the succession assets against Ms. Davis on behalf of the executrix of Ms. Plummers estate. According to Professor Jackson, “[a]s a result of the Injunction Petition,” Ms. Davis “filed a number of complaints against Professor Jackson, including a complaint with the [Law Center,]” which “alleged that Professor Jackson unduly influenced Ms. Plummer in connection with the drafting and/or execution of her will.” Professor Jackson claimed that once the complaints began receiving media attention, Chancellor Pierre, Dr. Ray L. Belton, the President of Southern University, and others “conspired and entered into an agreement to cause the unlawful termination and loss of Professor Jacksons tenured professorship, (“Conspiracy”), in an effort to quiet the media attention․”
On April 20, 2017, Chancellor Pierre sent Professor Jackson a letter advising her that she had been placed on paid administrative leave of absence while a confidential matter was investigated. Professor Jackson alleged that she was instructed to stay away from Southerns campus, but continued to receive her full pay, and was scheduled to teach two courses in the fall of 2017.
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In July of 2017, Professor Jackson received a copy of a 21-page excerpt from a report issued in connection with the investigation. She then met with Chancellor Pierre to discuss the investigation. However, on August 7, 2017, the news media filed a petition to obtain the investigative report.
On August 14, 2017, Chancellor Pierre sent correspondence to Professor Jackson indicating that, based on allegations made by Ms. Plummers family members, the Law Center had levied the following charges against Professor Jackson: “(1) She engaged in conduct seriously prejudicial to the [Law Center] and the Southern University System; (2) She engaged in unethical and/or immoral behavior; (3) She failed to perform duties in a professional manner.” Professor Jackson alleged that she requested more specific charges, but the Board failed to provide same.
On October 3, 2017, Professor Jackson received a memorandum referencing an “Informal Investigatory Committee Report,” which addressed the charges levied against her in Chancellor Pierres August 14, 2017 correspondence. The memorandum made multiple references to a “complaint made by [Ms.] Plummers family” that, if proven, would support the charges that Professor Jackson “may have violated the Louisiana Rules of Professional Conduct, the Louisiana Code of Governmental Ethics, and/or the Council on Aging Bylaws.” Professor Jackson alleged that she made several requests for the complaint made by Ms. Plummers family, which were ignored. She alleged that less than a week before the hearing, she was provided with specifics as to the charges.
Professor Jackson alleged that although she was advised that her investigatory hearing would take place in November of 2017, the Board and/or Chancellor Pierre had already hired a replacement for her for the Spring semester of 2018.
According to Professor Jackson, at the November 17, 2017 investigatory hearing, the committee articulated specifics that had not previously been communicated to her relative to the charges. Nevertheless, she provided rebuttal testimony in response to these charges. Following the hearing, the investigatory committee recommended a “1 (one) year suspension without pay, revocation of tenure, and a demotion.” According to Professor Jackson, Chancellor Pierre overruled the investigatory committee, recommended termination, and sent that recommendation to President Belton. Professor Jackson alleged that President Belton thereafter terminated her, in violation of the universitys personnel policy.
Professor Jackson appealed her termination to the Board, and a hearing was conducted before the personnel committee. Professor Jackson submitted a position paper and presented oral argument, where she highlighted the violations of various university policies in connection with her termination. The Board denied her appeal.
Professor Jackson then filed the instant lawsuit on August 20, 2018 (the “state court litigation”), against the Board, alleging that her termination violated the Southern University Personnel Policy. She asserted the following causes of action arising from her termination: breach of contract, extreme emotional distress and mental anguish, violation of state due process, abuse of rights, and conspiracy.
The Board filed a motion to stay the state court litigation pending the completion of federal litigation Professor Jackson had previously instituted. The Board contended that the federal litigation involved the identical set of facts, claims, and causes of action asserted by Professor Jackson in the state court litigation. Professor Jackson opposed the Boards motion to stay. Following a hearing, the trial court granted the Boards motion to stay and signed a judgment on February 6, 2019, ordering that the stay would remain in effect until the completion or dismissal of the federal litigation.
Federal Litigation
On June 5, 2018, Professor Jackson filed a lawsuit in the United States District Court for the Middle District of Louisiana against the Board and several university officials, including President Belton and Chancellor Pierre. In her federal complaint she alleged both federal due process claims under 42 U.S.C. § 1983 and several state law claims, including violation of due process, conspiracy, abuse of rights, and intentional infliction of emotional distress. The defendants moved to dismiss Professor Jacksons claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted. See Jackson v. Pierre, No. 18-603-SDD-RLB, 2019 WL 4739294 (M.D. La. Sept. 27, 2019).
In detailed reasons, the federal district court found that Professor Jackson failed to state a plausible claim that she suffered a procedural due process violation. Jackson, 2019 WL 4739294, at *6. Based upon the allegations contained in Professor Jacksons pleadings, the federal district court determined that she was provided adequate procedural due process where:
(1) She was provided notice of the charges in several communications, including the August 14, 2017 letter from Chancellor Pierre, which also indicated that the charges against her were based upon allegations made by Ms. Plummers family members;
(2) She was given two opportunities to be heard, first at a November 2017 hearing, then at her appeal to the Board in January 2018;
(3) She made no allegations of actual bias against the hearing members;
(4) The hearing members had “some academic expertise,” with at least two being law professors; and
(5) She could not assert a due process violation based on violations of internal university policies where she failed to state a claim that the process she received was constitutionally deficient. Id. at *3-6.
The federal district court further determined that dismissal with prejudice of Professor Jacksons 42 U.S.C. § 1983 claim was warranted because granting leave to amend the complaint “would be futile and inappropriate under the circumstances.” Id. at *7. According to the federal district court, Professor Jacksons own allegations formed the basis for its conclusion that she received constitutionally sufficient process in the course of her suspension and termination. Thus, the federal district court concluded that amendment of Professor Jacksons complaint to remove allegations would be in bad faith, and pleading more facts would not change the federal district courts conclusion that Professor Jackson failed to state a plausible claim that her constitutional rights were violated. Id.
With regard to Professor Jacksons state law claims, the federal district court declined to exercise supplemental jurisdiction because it had dismissed all of her federal claims. The federal district court found that “the state law claims asserted in this matter properly belong in state court.” Id. at *9. Thus, it dismissed her state law claims without prejudice. The United States Fifth Circuit Court of Appeals affirmed. Jackson v. Pierre, 810 F. Appx. 276 (5th Cir. 2020).
State Court Litigation
Following the Fifth Circuit Court of Appeals’ decision, Professor Jackson filed an unopposed motion to lift the stay in the state court litigation, which the trial court granted by order signed May 19, 2020. Professor Jackson then filed a supplemental and amending petition for damages, adding President Belton and Chancellor Pierre as defendants in the state court litigation. Subsequently, the Board, President Belton, and Chancellor Pierre (collectively “defendants”) each filed a peremptory exception of no cause of action, contending that Professor Jackson failed to plead facts to establish she was denied constitutionally protected due process in connection with her termination. The defendants’ exceptions further contended that Professor Jackson failed to state claims for intentional infliction of emotional distress, abuse of rights, and conspiracy where she did not plausibly plead an underlying violation of her constitutional rights. The Board and Chancellor Pierre further asserted that they were immune from liability pursuant to La. R.S. 9:2798.1, which provides state law immunity for the discretionary conduct of employees of public entities in the performance of their discretionary duties.
Following a hearing on the exceptions, by judgment dated November 19, 2020, the trial court granted the peremptory exceptions of no cause of action and dismissed Professor Jacksons case with prejudice. Professor Jackson appeals the November 19, 2020 judgment.
ASSIGNMENTS OF ERROR
On appeal, Professor Jackson argues that the trial court erred in granting the exceptions of no cause of action filed by the Board, Chancellor Pierre, and President Belton. She further argues that the trial court erred in refusing to allow her the right to amend her petition to cure any purported defects.
LAW AND DISCUSSION
The peremptory exception of no cause of action tests the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged. Allstate Vehicle and Property Insurance Company v. Andrus Restoration, LLC, 2019- 1279 (La. App. 1 Cir. 9/21/20), 314 So. 3d 51, 55. In the context of the peremptory exception, a “cause of action” is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Paulsell v. State, Department of Transportation & Development, 2012-0396 (La. App. 1 Cir. 12/28/12), 112 So. 3d 856, 864, writ denied, 2013-0274 (La. 3/15/13), 109 So. 3d 386. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. Rather, the exception is triable solely on the face of the petition and any attached documents. Melancon v. Commonwealth Land Title Insurance Company, 2020-0196 (La. App. 1 Cir. 12/30/20), 318 So. 3d 171, 174.
For purposes of determining the issues raised by the exception of no cause of action, all well-pleaded facts in the petition must be accepted as true. CamSoft Data Systems, Inc. v. Southern Electronics Supply, Inc., 2015-1260 (La. App. 1 Cir. 9/23/15), 182 So. 3d 1009, 1015. However, mere conclusions unsupported by facts are not sufficient to set forth a cause of action. Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So. 2d 114, 118. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Melancon, 318 So. 3d at 174. The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiffs behalf, the petition states any valid cause of action for relief. Id. Because the exception of no cause of action raises a question of law and the trial courts decision is based solely on the sufficiency of the petition, review of the trial courts ruling on an exception of no cause of action is de novo. Scheffler v. Adams & Reese, LLP, 2006-1774 (La. 2/22/07), 950 So. 2d 641, 647.
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. La. C.C.P. art. 934. If the grounds of the objection raised through the exception cannot be so removed, the action shall be dismissed. Id. The decision to allow amendment of a pleading to cure the grounds for a peremptory exception is within the discretion of the trial court. Harris v. Breaud, 2017-0421 (La. App. 1 Cir. 2/27/18), 243 So. 3d 572, 581.
Violation of State Due Process
The Fourteenth Amendment to the United States Constitution prohibits a state from depriving a person “of life, liberty, or property, without due process of law.” Article 1, § 2 of the Louisiana Constitution provides the same protections. Because the Louisiana Constitutions guarantee of due process does not vary semantically from the Due Process Clause of the Fourteenth Amendment, federal jurisprudence is relevant in determining the nature and extent of state due process protection. Fields v. State Through Department of Public Safety and Corrections, 98-0611 (La. 7/8/98), 714 So. 2d 1244, 1250. Thus, the opinions of the federal district court and the United States Fifth Circuit Court of Appeals in Professor Jacksons federal litigation provide persuasive analysis in this case.
A tenured college instructor possesses a property interest in his position that requires due process protection under both the federal and state constitutions. Delahoussaye v. Board of Supervisors of Community and Technical Colleges, 2004-0515 (La. App. 1 Cir. 3/24/05), 906 So. 2d 646, 651. Before a tenured professors employment is terminated, she has a right under the Due Process Clause to:
(1) be advised of the cause for [her] termination in sufficient detail so as to enable [her] to show any error that may exist; (2) be advised of the names and the nature of the testimony of the witnesses against [her]; (3) a meaningful opportunity to be heard in [her] own defense within a reasonable time; and (4) a hearing before a tribunal that possesses some academic expertise and an apparent impartiality toward the charges.
Jackson, 810 F. Appx. at 279 (citing Levitt v. University of Texas at El Paso, 759 F. 2d 1224, 1227-28 (5th Cir. 1985). The first two prongs center on notice — whether the terminated professor received sufficient notice of the cause for her termination and the witnesses against her. Jackson, 810 F. Appx. at 279. The third and fourth prongs focus on the opportunity to be heard. Id. These requirements are not violated simply by failing to comply with internal rules or policies of the university. Id. In other words, a constitutional violation is not plausibly alleged simply by putting forth facts showing that the defendant failed to follow its own rules. Id.
In this case, according to Professor Jacksons petitions, in April of 2017, she was advised by letter that she had been placed on leave while a confidential matter was investigated. In July of 2017, she received a 21-page excerpt from a report issued in connection with that investigation. She alleged she then received a letter on August 14, 2017, and a memorandum on October 3, 2017, that advised her the investigation related to ethical and professionalism concerns regarding her handling of Ms. Plummers will. Additionally, Professor Jackson alleged that the correspondence she received in August and October advised her of the identities of the witnesses against her (Ms. Plummers family members) and the nature of their testimony (concerns about her handling of the will). Based upon our de novo review of the petitions, we find that Professor Jackson was advised of the cause for her termination in sufficient detail to enable her to show any error that may exist, as well as the names and the nature of the testimony of the witnesses against her. See Levitt, 759 F. 2d at 1228; Jackson, 810 F. Appx. at 279.
With regard to her opportunity to be heard, Professor Jackson alleged that she had an investigatory hearing on November 17, 2017, where she was able to hear the case against her and present testimony to rebut the allegations. She then alleged that she participated in an appeal hearing before the Boards personnel committee, where she was allowed to submit a position paper and present oral argument. These two hearings certainly met the requirement of an opportunity to be heard, even if they were lacking in all the accoutrements she sought. See Jackson, 810 F. Appx. at 280. According to Professor Jacksons petitions, the investigatory committee and personnel committee were comprised of university officials. In her detailed allegations regarding the committees, Professor Jackson did not plead facts supporting a finding that any of the officials failed to possess academic expertise or showed actual bias against her.
On appeal, Professor Jackson argues that her due process claim is not as to a single event, but encompasses multiple events, three of which are stand-alone due process claims. According to Professor Jackson, the three stand-alone events are: (1) the reduction of salary without any notice or hearing; (2) the termination by Chancellor Pierre and/or President Belton without notice or a hearing; and (3) the Board attorney also acting as a prosecutor.
Professor Jackson first contends that her salary was reduced without any notice or hearing. Professor Jackson alleged in her petition that she continued to receive her full pay after being placed on administrative leave in April 2017; she argues herein that Chancellor Pierre and/or the Board withheld additional sums she would have been paid for teaching two courses in the fall semester of 2017. In order to have a property interest sufficient to require due process protection, a person must have a legitimate claim of entitlement to it. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). In Hicks v. Stone, 425 So. 2d 807, 811 (La. App. 1 Cir. 1982), writ denied, 429 So. 2d 129 (La. 1983), this court held that the plaintiff, a tenured professor, who was dismissed from an additional appointment as dean but retained his appointment and salary as professor, was not entitled to due process in connection with his termination as dean. This court held that because the appellant did not have a legitimate claim of continued entitlement to the position of dean pursuant to the express conditions of his employment, he did not have a property interest sufficient to require a hearing prior to his dismissal. Id. In this case, Professor Jackson did not allege a property interest in the two courses she did not teach in the fall semester of 2017. Moreover, Professor Jackson has not cited any relevant authority supporting her claim that she was entitled to extra responsibilities and salary on top of the full pay received for her tenured position as a clinical faculty member. See Jackson, 810 F. Appx. at 280, n.2. Therefore, as a matter of law, Professor Jackson has not shown that she was entitled any process with respect to the loss of responsibilities that were additional to and separate from her clinical teaching job while she was on administrative leave. Id.
Professor Jackson next argues that her actual termination was undertaken pursuant to a “surreptitious meeting/hearing” between Chancellor Pierre and/or President Belton, and she had no opportunity to be heard in connection with that “secret meeting/hearing.” According to Professor Jacksons petition, this violated the universitys personnel policy. As noted above, constitutional due process requirements are not violated by the universitys failure to comply with internal rules or policies. See Jackson, 810 F. Appx. at 279. According to her petition, Professor Jackson received two hearings in connection with her termination. Professor Jackson alleged that she was able to rebut the allegations against her in the investigatory hearing and was able to submit a position paper and present oral argument at the appeal hearing. Thus, she had an opportunity to present “[her] side of the story.” See Pastorek v. Trail, 248 F. 3d 1140, *4 (5th Cir. 2001), cert. denied, 533 U.S. 950, 121 S. Ct. 2593, 150 L. Ed. 2d 752 (2001). Professor Jackson received the opportunity to be heard that due process requires. Thus, this argument is without merit.
Professor Jackson next contends that her due process was violated when the Board attorney also acted as a prosecutor, citing Allen v. Louisiana State Board of Dentistry, 543 So. 2d 908 (La. 1989). We do not find Allen relevant hereto. Allen involved application of the Administrative Procedure Act, which is not implicated herein. Moreover, Allen addressed the prosecutors involvement in drafting the committees finding and conclusions, thereby placing him in the position of the adjudicator. See Allen, 543 So. 2d at 914. Professor Jacksons petition contains no allegation of such commingling of roles.
Finally, violations of Professor Jacksons due process rights are not plausibly alleged by her assertion of “several violations of University policy.” See Jackson, 810 F. Appx. at 279.
Accordingly, based upon our de novo review of Professor Jacksons petitions, we conclude that Professor Jackson fails to plausibly allege that she did not receive sufficient state due process before termination. See Jackson, 810 F. Appx. at 280. We further find that, based upon her own allegations, the grounds of the objection cannot be removed by amendment of her petition. See La. C.C.P. art. 934. Thus, we conclude that the trial court was legally correct in granting the defendants’ exceptions of no cause of action as to Professor Jacksons claims of violations of state due process and in refusing to allow amendment of her petition to cure any purported defects as to the state due process claims.
Breach of Contract
Professor Jackson pled that the Board breached its “clinical faculty contract/agreement” with her by “allowing [President] Belton to terminate her without just cause, and in furtherance of a conspiracy, to deprive Professor Jackson of her constitutionally protected right of due process.” As we noted above, Professor Jackson failed to state a valid cause of action for violation of due process; thus, based on the allegations of her original petition, we find that she has failed to state a valid cause of action for breach of contract. Accordingly, we find that the trial court was legally correct in granting the Boards exception of no cause of action as to Professor Jacksons breach of contract claim.
Professor Jackson also assigns as error the trial courts refusal to allow her the right to amend her petition to cure any purported defects. Pursuant to La. C.C.P. art. 934, when the grounds of an objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. On appeal, Professor Jackson correctly observes that a universitys failure to comply with its own rules may constitute a breach of contract. See Levitt, 759 F. 2d at 1230. She argues that her contract of employment was subject to the terms of the universitys personnel policy, that the Board violated those policies in connection with her termination, and thereby breached the contract with Jackson relative to her tenured employment. Professor Jacksons petitions do not contain these allegations. However, her arguments indicate that she may be able to amend her petitions to state a cause of action for breach of contract. Thus, we conclude the trial court abused its discretion in dismissing her petition against the Board without providing her an opportunity to amend her petitions. Therefore, the portion of the judgment dismissing Professor Jacksons suit with prejudice as to her breach of contract claim is reversed and this matter is remanded to allow Professor Jackson the opportunity to amend her petition in accordance with La. C.C.P. art. 934.
Abuse of Rights
The abuse of rights doctrine is a civilian concept which is applied only in limited circumstances because its application renders unenforceable ones otherwise judicially protected rights. Truschinger v. Pak, 513 So. 2d 1151, 1154 (La. 1987). The abuse of rights doctrine has been applied only when the holder of a right uses it:
(1) Exclusively to harm another or where the predominant motive is to cause harm;
(2) Where there is no serious or legitimate interest worthy of judicial protection;
(3) In violation of moral rules, good faith or elementary fairness; or
(4) For a purpose other than that for which the right was granted.
Kok v. Harris, 563 So. 2d 374, 377 (La. App. 1 Cir. 1990).
Professor Jackson pled that the predominant motive for the defendants’ actions was to harm her; there was no legitimate motive for the defendants’ violation of her constitutionally protected right to due process; the defendants’ actions in violating her constitutionally protected right to due process violated moral rules, good faith, and elementary fairness; and the defendants’ actions were done to violate her constitutionally protected right to due process.
As we have previously recognized, Professor Jackson failed to state a valid cause of action for violation of her constitutionally protected right to due process; thus, this cannot form the basis for a valid cause of action for abuse of rights. Moreover, her allegations as to the defendants’ actions relating to this claim are conclusory and insufficient to state a cause of action for abuse of rights. On appeal, Professor Jackson argues that the defendants knew or should have known that the allegations made against her in connection with the execution of Ms. Plummers will were false, but they did not care, as their motivation in terminating her was to put the blame on her and get the matter out of the media spotlight. However, her petitions do not contain these allegations.
Moreover, and in addition, the Board and Chancellor Pierre contend that their actions in connection with Professor Jacksons suspension and termination were discretionary, and thus they are immune from Professor Jacksons tort claims because of the discretionary acts immunity set forth in La. R.S. 9:2798.1. Louisiana Revised Statutes 9:2798.1 provides, in pertinent part:
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
Professor Jackson argues that she pled that the various actions of the Board and Chancellor Pierre were not “within the course and scope of their lawful powers and duties,” as required by Subsection B of La. R.S. 9:2798.1; and that the facts as pled in her petitions invoke Subsection C of La. R.S. 9:2798.1. Thus, she argues that her petitions defeat an immunity argument.
Professor Jackson pled that Chancellor Pierre failed to consult with the Faculty Grievance Committee concerning her suspension, as required by certain university policies; that Chancellor Pierre and the Board withheld sums she would have been paid for teaching two courses in the fall semester of 2017; and that Chancellor Pierre recommended termination in violation of university policy. Professor Jackson further pled that she waived her privacy rights regarding production of documents to the media, resulting in the Board and Chancellor Pierre being cast for paying the medias attorneys fees and costs; and that the Board and/or Chancellor Pierre hired a replacement for her prior to the November 17, 2017 investigatory hearing.
We do not find that Professor Jacksons petitions contain allegations indicating that the discretionary actions of the Board and Chancellor Pierre in connection with Professor Jacksons suspension and termination were not “within the course and scope of their lawful powers and duties.” La. R.S. 9:2798.1(B). Nor do we find that Professor Jackson alleged that their actions were “not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists,” or that their actions constituted “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” La. R.S. 9:2798.1(C)(1), (2). Thus, we find that the trial court was legally correct in granting the defendants’ exceptions of no cause of action as to Professor Jacksons abuse of rights claim.
With regard to Professor Jacksons assignment of error as to the trial courts refusal to allow her the right to amend her petition to cure any purported defects, we recognize that a cause of action for abuse of rights may exist in connection with an employees termination in violation of moral rules, good faith, or elementary fairness. See Sartisky v. Louisiana Endowment for the Humanities, No. 14-1125, 2014 WL 5040817, at *4 (E.D. La. Sept. 26, 2014). Moreover, in Garza v. Delta Tau Delta Fraternity National, 2006-0698 (La. App. 1 Cir. 3/28/07), 2007 WL 914875, at *3 (unpublished), this court reversed the trial courts judgment dismissing a petition pursuant to a peremptory exception raising the objection of no cause of action based on the discretionary acts immunity under La. R.S. 9:2798.1 when it determined that the allegations in the plaintiffs petition could constitute malicious, intentional, or willful misconduct pursuant to La. R.S. 9:2798.1(C)(2).
We conclude that the trial court abused its discretion in failing to allow Professor Jackson the opportunity to amend her petition to remove the grounds of the objection. Therefore, the portion of the judgment dismissing Professor Jacksons suit with prejudice as to her abuse of rights claim is reversed and this matter is remanded to allow Professor Jackson the opportunity to amend her petition in accordance with La. C.C.P. art. 934. See Stewart v. City of Hammond, 2020-0851 (La. App. 1 Cir. 3/29/21), 322 So. 3d 1253, 1263.
Conspiracy
Louisiana Civil Code article 2324(A) provides that he who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. An independent cause of action for civil conspiracy does not exist in Louisiana, rather, the actionable element of La. C.C. art. 2324 is the intentional tort that the conspirators agreed to commit and committed, in whole or in part, causing plaintiffs injury. Hardy v. Easterling, 47,950 (La. App. 2 Cir. 4/10/13), 113 So. 3d 1178, 1184.
Professor Jackson pled that the defendants took certain actions “in furtherance of the Conspiracy to violate Professor Jacksons constitutionally protected due process rights.” As we noted above, Professor Jackson failed to state a valid cause of action for violation of due process; thus, based on the allegations of her petitions, we find that she has failed to state a valid cause of action for conspiracy. Accordingly, we find that the trial court was legally correct in granting the defendants exception of no cause of action as to Professor Jacksons conspiracy claim. However, we conclude that the trial court abused its discretion in failing to allow Professor Jackson the opportunity to amend her petition to remove the grounds of the objection. Therefore, the portion of the judgment dismissing Professor Jacksons suit with prejudice as to her conspiracy claim is reversed, and this matter is remanded to allow Professor Jackson the opportunity to amend her petition in accordance with La. C.C.P. art. 934.
Intentional Infliction of Emotional Distress
In order to recover for intentional infliction of emotional distress, 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). The conduct must be 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. Disciplinary action and conflict in a pressure-packed workplace environment, although calculated to cause some degree of mental anguish, is not ordinarily actionable. Id. at 1210. Recognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time. Id.
Professor Jackson pled that during her employment, she was subjected to “continuous violations of her constitutionally protected right of due process by the actions of the Defendants.” Professor Jackson further alleged that, “The conduct of the Defendants was outrageous in character and extreme in degree, because said conduct was atrocious and egregious, and went beyond all possible bounds of decency and is utterly intolerable in a civilized community.”
On appeal, Professor Jackson argues that the following allegations contained in her petitions establish a cause of action for intentional infliction of emotional distress: Chancellor Pierre, President Belton, and others conspired to cause her unlawful termination after Ms. Daviss complaints began receiving media attention; in furtherance of the conspiracy and acting under color of law, their actions towards her became more hostile in the form of ignoring requests for information, providing inaccurate or incomplete information, constructive termination without notice or an opportunity to be heard, and actual termination in violation of university polices and procedure; the Board and/or Chancellor Pierre hired a replacement for her prior to the November 17, 2017 investigatory hearing; and her requests for a full copy of the university policy regarding the procedures for an investigatory panel were ignored.
As noted above, Professor Jackson failed to state a valid cause of action for violation of due process; thus, this cannot form the basis for a valid cause of action for intentional infliction of emotional distress. Moreover, her allegation that the defendants’ conduct was “outrageous in character and extreme in degree” is merely conclusory in nature and not supported by facts sufficient to state a cause of action. We further find that none of the allegations that Professor Jackson argues establish a cause of action for intentional infliction of emotional distress meet the aforementioned criteria discussed in White, as the conduct alleged is not so outrageous in character or so extreme in degree as to go beyond all possible bounds of decency, nor is the conduct regarded as atrocious and utterly intolerable in a civilized community. See White, 585 So. 2d at 1209. Rather, the complained-of actions relate to the disciplinary action that resulted in her termination.
Accordingly, we find that the trial court was legally correct in granting the defendants’ exceptions of no cause of action as to Professor Jacksons claim for intentional infliction of emotional distress. We further find that, based upon her own allegations, the grounds of the objection cannot be removed by amendment of her petition. See La. C.C.P. art. 934. Thus, the trial court did not abuse its discretion in not allowing Professor Jackson an opportunity to amend her pleadings to attempt to cure the grounds for failing to allege a claim for intentional infliction of emotional distress. See Harris, 243 So. 3d at 581.
CONCLUSION
For the foregoing reasons, we affirm the judgment insofar as it sustained the exceptions of no cause of action. We reverse that portion of the judgment dismissing Dorothy Jacksons suit with prejudice, and remand this matter to the trial court to allow her an opportunity to amend her petition, if possible, to state a cause of action for breach of contract against the Board of Supervisors for the Southern University and Agricultural and Mechanical College, for abuse of rights and conspiracy against the Board of Supervisors for the Southern University and Agricultural and Mechanical College, John Pierre, Chancellor of the Southern University Law Center, and Dr. Ray L. Belton, President of Southern University, and for further proceedings consistent with this opinion. Costs of this appeal in the amount of $2,046.50 are assessed equally, $1,023.25 against Professor Jackson, and $1,023.25 against the defendants.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
In my opinion, the majority errs in allowing Ms. Jackson an opportunity to amend her petition to state a cause of action for abuse of rights and conspiracy.
With regard to her abuse of rights claim, Ms. Jackson exclusively alleged the following in her original and supplemental petitions:
143.
This claim is authorized and instituted pursuant to the provisions of Louisiana Civil Code Article 2315. (Case citations omitted).
144.
The predominate motive for the Defendants was to harm Professor Jackson.
145.
There was no legitimate motive for the Defendants violating Professor Jacksons constitutionally protected right to due process.
146.
The actions of the Defendants in violating Professor Jacksons constitutionally protected right to due process violates moral rules, good faith, and elementary fairness.
147.
The actions of the Defendants were done to violate Professor Jacksons constitutionally protected right to due process.
Further, as to her conspiracy claim, Ms. Jackson asserted:
149.
This claim is authorized and instituted pursuant to the provisions of Louisiana Civil Code Articles 2315 and 2324.
150.
Professor Jackson complains of the Defendants Conspiracy/agreement with co-conspirators to violate the Louisiana Constitutions prohibition against the taking of her property without due process of law as set forth above. (Case citations omitted).
151.
As set forth in the original Petition and the First Supplemental and Amending Petition, the Defendants have taken certain actions in furtherance of the Conspiracy to violate Professor Jacksons constitutionally protected due process rights. (Case citations omitted).
152.
As a result of the aforesaid Conspiracy, Professor Jacksons constitutionally protected due process rights were violated.
As shown in the allegations of her petitions, Ms. Jacksons abuse of rights and conspiracy claims are based solely on and are inextricably bound to the alleged violations of her due process rights. Ms. Jackson makes no allegations regarding abuse of rights or conspiracy independent of her claim regarding the alleged due process violations. Moreover, as correctly determined by the majority, Ms. Jackson will be unable to cure any defects regarding her due process claims. Therefore, any opportunity to amend the petition to state either an abuse of rights or conspiracy claim would be futile and useless. Accordingly, I respectfully dissent in part.
I concur in the results reached by the majority insofar as the affirmance of the trial courts action of sustaining the peremptory exception raising the objection of no cause of action as to all claims and its remand on the breach of contract claim. Moreover, I fully agree with Judge McClendons dissent, disagreeing with the majoritys remand allowing Professor Jackson to amend her petition to state facts to support abuse of rights and conspiracy relief. I write separately to explicitly note that although La. C.C.P. art. 934 generally requires that a plaintiff be allowed to amend her petition if the general grounds for the exception may be cured by amendment, it does not require that she be allowed an opportunity to speculate on unwarranted facts merely for the purpose of defeating the exception. Robinson v. Allstate Ins. Co., 53,940 (La. App. 2d Cir. 5/26/21), 322 So.3d 381, 388, writ denied, 2021-00906 (La. 10/19/21), 326 So.3d 264; Rombach v. State ex rel. Div. of Admin., 2015-0619 (La. App. 1st Cir. 12/23/15), 2015 WL 9464500, at *7
Plaintiff failed to allege any facts that defendant was motivated by a desire to personally harm her rather than to protect its reputation. See Truschinger v. Pak, 513 So.2d 1151, 1155 (La. 1987) (where a motive is serious and legitimate rather than a hostile illegitimate animus, there is no abuse of rights recovery available). Thus, by her own allegations, Professor Jackson is not entitled to an amendment to assert abuse of rights relief. And since the underlying claims of illegal conduct based on procedural and substantive due process violations have been dismissed, plaintiff has failed to allege an underlying tort so as to support a finding of conspiracy. See Jones v. Americas Ins. Co., 2016-0904 (La. App. 1st Cir. 8/16/17), 226 So.3d 537, 543 (“The actionable element ․ is not the conspiracy itself, but rather the tort, which the conspirators agreed to perpetrate and which they actually commit in whole or in part.”). In light of the allegations in her petition, I believe a remand to allow Professor Jackson to amend for either abuse of rights or conspiracy relief is simply an opportunity for speculation of unwarranted facts for the purpose of defeating the exception. Therefore, I dissent in part from the remand.
FOOTNOTES
1
. Professor Jackson alleged that Chancellor Pierre and/or the Board impermissibly reduced her salary beginning in the fall semester of 2017 by withholding sums she would have been paid for teaching these two courses.
PENZATO, J.
McClendon, J. dissents in part for reasons assigned.
Chutz, J. dissents with reasons.