Frith Malin v. Orleans Parish Comm District ( 2018 )

Case: 17-30490 Document: 00514348378 Page: 1 Date Filed: 02/15/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30490
Fifth Circuit
FILED
February 15, 2018
FRITH MALIN, Lyle W. Cayce
Clerk
Plaintiff–Appellant,
v.
ORLEANS PARISH COMMUNICATIONS DISTRICT,
Defendant–Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-16465
Before REAVLEY, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Frith Malin was Deputy Director of the Orleans Parrish
Communications District (OPCD). She alleges that the Human Resources
Manager of the OPCD, a female, created a sexually hostile work environment
and that Malin’s complaints to superiors were ignored. Malin’s employment
with OPCD was terminated when, in response to an email from OPCD’s
Executive Director to all employees, Malin criticized a departing member of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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the board of directors and inadvertently copied all of her co-workers. Malin
was terminated for the dissemination of this email upon the recommendation
of the human resources manager whom she had accused of creating a sexually
hostile work environment. Malin sued OPCD under 42 U.S.C. § 1983,
contending that the contents of her email are protected speech under the First
Amendment, and she sued under Title VII of the Civil Rights Act of 1964 and
Louisiana’s whistleblower statute. The district court dismissed her complaint
for failure to state a claim. We affirm.
I
Frith Malin had been employed by OPCD, which provides 9-1-1 services,
for eight years and was its deputy director when she was terminated. We
recount the facts alleged in her fourth and last complaint and accept them as
true for purposes of this appeal.
OPCD’s Executive Director, Stephen Gordon, emailed all OPCD
employees to inform them that Andy Kopplin, a member of the OPCD board of
directors, had been named CEO of the Greater New Orleans Foundation
(GNOF) and as a result, would not remain a member of OPCD’s board. Malin,
intending to reply only to Gordon, inadvertently replied “to all” with an email
that said:
I’m sure he will do just as good a job bleeding all these funds dry,
just as he has done with the City. I’m willing to bet he starts
charging a higher admin/maintenance fee to the entities that have
funds there. I normally donate to Franklin via this fund, but won’t
do that again.
According to her complaint, Malin frequently received emails from co-
workers, including Gordon, complaining about and opposing various OPCD
policies and actions. Malin had also “consistently voiced her concerns to her
supervisor, some of her co-employees, and to the OPCD Board concerning her
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opposition to City of New Orleans/OPCD consolidation issues, and in particular
as to how OPCD funds were being used.”
Three days after sending the email that was critical of Kopplin, Malin
was suspended pending an internal investigation by OPCD Human Resources
Manager Jeanne Hobson. Hobson concluded that Malin’s email violated the
OPCD Conduct Policy and recommended that she be terminated. Malin had
never before been disciplined. Two weeks after Hobson submitted her report,
OPCD terminated Malin’s employment.
About four months before she sent the offending email, Malin had
reported Hobson for graphically describing sexual encounters. Malin’s
complaint describes six incidents. In four of them, Hobson communicated
directly with Malin. In the first, Hobson approached Malin during lunch,
displayed a picture of a man with his head on a pillow, told Malin she had met
him on Tinder, that they had sex twice that morning before 7:00. When Hobson
attempted to describe in detail a sexual act in which she had engaged with the
man, Malin was humiliated and embarrassed. She left the lunch table, went
to her office and closed the door. Within a few days later, Hobson again
attempted to show Malin pictures of sexual partners and told Malin the names
of the “hookup sites she was using.” When Hobson attempted to relate details
of the sexual activities, Malin made an excuse to walk away, kept her door
closed, and pretended to be on the phone when Hobson approached her office.
In the third incident, Hobson entered Malin’s office and related that she
had sex during her lunch break and described the details of the sexual activity.
Malin told Hobson “vehemently to stop.” The fourth incident occurred about a
month after the first. Hobson told Malin she had called in sick because she
was with a male sexual partner.
The other two incidents in Malin’s complaint recount what she was told
by others a month after the first time Hobson shared her sexual exploits with
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Malin. When Malin told another employee about Hobson’s actions, that
employee told Malin that another employee “had also complained that Hobson
was communicating to her the lurid details of her sexual life.” Hobson
subsequently learned that Hobson related to two female 9-1-1 dispatchers that
a man with whom she had sex asked her to have sex with his best friend while
he filmed it. She agreed, and because the filming of first act of intercourse was
blurry, a second act ensued and captured on film.
Malin complained to Gordon, her supervisor, that Hobson’s actions
constituted sexual harassment and that Malin and other female employees
“had been essentially captive victims of this salacious and inappropriate
behavior in the workplace.” Hobson was never disciplined and was aware that
Malin had reported her.
After she was terminated, Malin brought suit against OPCD under
§ 1983 alleging a violation of her First Amendment rights. 1 Malin additionally
claimed that, in violation of Title VII of the Civil Rights Act of 1964, 2 and
Louisiana’s whistleblower statute, 3 OPCD had retaliated against her for
reporting Hobson. The district court granted OPCD’s motion to dismiss all
claims. The court held that Malin was not protected by the First Amendment
because she sent her email about Kopplin as a public employee, not a citizen,
and alternatively, that the content of the email was not a matter of public
concern. The court dismissed Malin’s Title VII claim, concluding that she did
not participate in a Title VII protected activity because a reasonable person
would not believe that Hobson’s commentary created a sexually hostile work
environment. Because Louisiana courts look to federal cases interpreting Title
1 See 42 U.S.C. § 1983.
2 42 U.S.C. § 2000e-3.
3 LA. REV. STAT. ANN. § 23:967 (2017).
4
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VII when interpreting La. R.S. 23:967, the district court dismissed Malin’s
state law claim for the same reason. Malin appeals.
II
To establish a First Amendment retaliation claim against a state actor
under § 1983, a plaintiff must prove that (1) she suffered an adverse
employment decision, (2) she “spoke as a citizen on a matter of public concern,”
(3) her interest in speaking outweighed the state actor’s interest in workplace
efficiency, and (4) her protected speech motivated the adverse decision. 4 The
parties do not dispute for purposes of this appeal that Malin’s speech motivated
an adverse employment decision. Their focus is on whether she spoke as a
citizen and whether her email addressed matters of public concern. 5
The Supreme Court has “identif[ied] two inquiries to guide
interpretation of the constitutional protections accorded to public employee
speech.” 6 The first inquiry “requires determining whether the employee spoke
as a citizen on a matter of public concern.” 7 Courts are instructed that “[i]f the
answer is no, the employee has no First Amendment cause of action based on
his or her employer’s reaction to the speech.” 8 But “[i]f the answer is yes, then
the possibility of a First Amendment claim arises.” 9
If the employee spoke as a citizen on a matter of public concern, then the
second of the “two inquiries” is “whether the relevant government entity had
an adequate justification for treating the employee differently from any other
member of the general public.” 10 Courts must engage in “particularized
4 Gibson v. Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016).
5 See Lane v. Franks, 134 S. Ct. 2369, 2378-80 (2014) (evaluating separately whether
a public employee spoke as a citizen and whether the speech was a matter of public concern).
6 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)
7 Id.
8 Id.
9 Id.
10 Id.
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balancing” to “reach the most appropriate possible balance of competing
interests,” which “is difficult.” 11
In the current procedural posture of the present case, only the first
inquiry is at issue. Were we to conclude that Malin spoke as a citizen on a
matter of public concern, we would not engage in the second inquiry, which is
the balancing analysis, at this stage. We would remand to the district court
for further proceedings. Our court said in Burnside v. Kaelin that "[i]n stating
a prima facie case at the motion-to-dismiss stage of a case, there is a rebuttable
presumption that no balancing is required to state a claim.” 12 A procedure that
Burnside said may be available to an employer to “quickly overcome the
presumption” 13 is not implicated in this appeal.
“The ultimate issue—whether the speech is protected—is a question of
law.” 14 To survive dismissal, the complaint must contain enough facts to “state
a claim to relief that is plausible on its face.” 15 We look to the facts alleged in
Malin’s complaint; we do not accept as true legal conclusions and “[t]hreadbare
recitals of the elements of a cause of action.” 16
A
It is well-settled that “public employees do not surrender all their First
Amendment rights by reason of their employment.” 17 Because “government
11 Connick v. Myers, 461 U.S. 138, 150 (1983).
12 773 F.3d 624, 628 (5th Cir. 2014) (reasoning that “[t]he rebuttable presumption
applies because reasonable inferences drawn from a complaint, obviously drafted by the
aggrieved employee, will generally lead to a plausible conclusion that the employee's interest
in commenting on matters of public concern outweighs the employer's interest in workplace
efficiency” and that “[t]he presumption also adheres because a plaintiff-employee is not in a
position to plead defensive reasons for its employment decisions”).
13 Id.
14 Rankin v. McPherson, 483 U.S. 378, 386 n.9 (1987) (citing Connick, 461 U.S. at 148
n.7).
15 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
16 Iqbal, 556 U.S. at 678.
17 Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
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employees are often in the best position to know what ails the agencies for
which they work” 18 their speech may be protected even if it “concerns
information related to or learned through public employment.” 19 However,
“‘Government employers, like private employers, need a significant degree of
control over their employees’ words and actions; without it, there would be
little chance for the efficient provision of public services.’” 20 Therefore, the
“Constitution does not insulate [speech made pursuant to official duties] from
employer discipline.” 21 For example, while “making a public statement,
discussing politics with a coworker, [or] writing a letter to newspapers” 22 are
“examples of prototypical protected speech,” 23 a prosecutor’s internal memo
about a case he was assigned to analyze as part of his normal job
responsibilities was not citizen speech. 24
The district court based its ruling that Malin’s email contained employee
speech primarily on the fact that it was sent only to supervisors and co-workers
from Malin’s work email address and the information in the email was not
shared with the public. However, the Supreme Court has made clear that the
fact that an employee “expressed his views inside his office, rather than
publicly, is not dispositive” 25 and “that First Amendment protection applies
when a public employee arranges to communicate privately with his employer
rather than to express his views publicly.” 26
18 Lane, 134 S. Ct. at 2377 (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)
(plurality opinion)).
19 Id.
20 Id. (quoting Garcetti, 547 U.S. at 418).
21 Id. at 2378.
22 Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (quoting Spiegla v. Hull, 481
F.3d 961, 967 (7th Cir. 2007) (citing Garcetti, 547 U.S. at 421)) (brackets omitted).
23 Id.
24 Garcetti, 547 U.S. at 421-22 (2006).
25 Id. at 420.
26 Connick v. Myers, 461 U.S. 138, 146 (1983).
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OPCD contends that Malin sent the email as an employee because she
often needed to read and respond to email as part of her job, so the content of
her email is “irrelevant.” Although the medium of speech is relevant to
determining whether a public employee is speaking as a citizen, 27 the
proposition that an email, regardless of content, is employee speech because
responding to email is part of an employee’s job is far too sweeping. “Many
citizens do much of their talking inside their respective workplaces,” 28 and
employees undoubtedly communicate as citizens in workplace emails. 29
To resolve whether speech is that of a citizen or an employee, courts
determine “whether the speech at issue is itself ordinarily within the scope of
an employee's duties, not whether it merely concerns those duties.” 30 A “formal
job description is not dispositive” to this determination, “nor is the fact that
the speech relates tangentially to the subject matter of one's employment.” 31
“The critical question under Garcetti is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties, not whether it merely
concerns those duties.” 32
In some circumstances, the nature of the communication reveals
whether the public employee spoke as a citizen. In Lane v. Franks, the
27See, e.g., Lane v. Franks, 134 S. Ct. 2369, 2379-80 (2014).
28Garcetti, 547 U.S. at 420.
29 Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 191 (5th Cir. 2005) (rejecting the
argument that because a secretary’s job duties included answering the phone her telephone
conversation was per se employee speech, reasoning that such a rule “would undermine First
Amendment protection for employees who speak at work while working”); see also Garcetti,
547 U.S. at 420-21 (“[I]t would not serve the goal of treating public employees like any
member of the general public, to hold that all speech within the office is automatically
exposed to restriction.”) (internal quotations and citations omitted).
30 Lane, 134 S. Ct. at 2379.
31 Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (citing Garcetti, 547 U.S. at
420-21); see also Lane, 134 S. Ct. at 2379 (“[T]he mere fact that a citizen's speech concerns
information acquired by virtue of his public employment does not transform that speech into
employee—rather than citizen—speech.”).
32 Lane, 134 S. Ct. at 2379.
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Supreme Court held that a public employee’s in-court testimony was citizen
speech because his ordinary job responsibilities did not involve testifying in
court. 33 Similarly, in Davis v. McKinney, our court held that an internal
auditor’s written complaints that management failed to discipline employees
for viewing pornography at work were employee speech because they “related
to her work within the internal audit department and to her core job
description,” but her criticism of the number and pay of vice presidents in the
organization was citizen speech because “[t]here was no financial component
to [her] position.” 34
Just as the Davis court compared the auditor’s job duties to the content
of her letter to determine whether she spoke as a citizen or employee, 35 we
evaluate whether Malin sent the offending email in the course of performing
her job. Malin criticized Kopplin for wasting city funds, opined that he would
increase fees to entities that maintained funds at GNOF, which would result
in “bleeding those funds dry,” and resolved not to donate money to GNOF while
Kopplin was CEO. Malin’s job responsibilities almost certainly did not include
expressing her personal approach to charitable giving, nor did they require her
to evaluate the performance of OPCD’s board of directors or comment on the
departure of OPCD personnel. However, Malin’s complaints about OPCD’s
funding policies under Kopplin were broadly related to her employment at
OPCD and likely based on information she acquired on the job. It is unclear
whether this aspect of the email was in the course of her duties as deputy
33 Id. at 2379-80.
34 Davis, 518 F.3d at 315.
35 Id.; see also Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007)
(per curiam) (holding the that a high school athletic director who wrote memoranda to
supervisors complaining about the lack of funds for athletics spoke as an employee because
such funds were integral to his job).
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district director. But at least some of the speech contained in Malin’s email
did not arise out of her normal job functions.
Based on the record before us, Malin spoke, at least in part, as a citizen.
B
Public employees speak on matters of public concern when their
communications “can ‘be fairly considered as relating to any matter of political,
social, or other concern to the community.’” 36 “Whether an employee’s speech
addresses a matter of public concern must be determined by the content, form
and context of a given statement, as revealed by the whole record.” 37 The
Supreme Court explained in Connick that “[t]o presume that all matters which
transpire within a government office are of public concern would mean that
virtually every remark—and certainly every criticism directed at a public
official—would plant the seed of a constitutional case.” 38
In Connick, an employee had circulated a questionnaire to her co-
workers seeking their views on various aspects of the district attorney’s office
and their level of confidence and trust in the district attorney. 39 The Court
reasoned that some of the questions in the questionnaire did not “seek to bring
to light actual or potential wrongdoing or breach of public trust on the part of
[the district attorney] and others.” 40 With regard to those questions, the Court
observed that “[i]ndeed, the questionnaire, if released to the public, would
convey no information at all other than the fact that a single employee is upset
with the status quo.” 41 That is the case here.
36 Gibson v. Kilpatrick, 838 F.3d 476, 482 (5th Cir. 2016) (quoting Lane, 134 S. Ct. at
2380 (citation omitted)).
37 Connick v. Myers, 461 U.S. 138, 147-48 (1983).
38 Id. at 149.
39 Id. at 141-42.
40 Id. at 148.
41 Id.
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If released to the public, Malin’s email would not bring to light actual or
potential wrongdoing by Kopplin. It conveys “no information at all” other than
Malin’s opinion that Kopplin had not been as fiscally conservative as Malin
thought he should have been, her speculation that he would charge “higher”
fees than GNOF was then charging, and her personal decision to no longer
donate through GNOF. The First Amendment does not protect this speech.
The Supreme Court reasoned in Connick that “the First Amendment does not
require a public office to be run as a roundtable for employee complaints over
internal office affairs.” 42 The district court correctly discerned that releasing
Malin’s email to the public would not provide any information other than her
displeasure with Kopplin’s performance as a board member.
Public employee speech may touch on matters of public concern “if it
does not involve solely personal matters or strictly a discussion of management
policies that is only interesting to the public by virtue of a manager’s status as
an arm of government.” 43 In Pickering v. Board of Education, 44 for example,
teachers who criticized the school board’s allocation of school funds between
academics and athletics spoke on a matter of public concern. 45 By contrast,
when a police officer’s post on the mayor’s Facebook page criticized the police
chief’s leadership, we held that even though the post began by addressing
matters of public importance—whether to send officers to the funeral of a fallen
officer in a nearby town—it devolved into a “rant” about the police chief and
was therefore “akin to an internal grievance.” 46
42 Id. at 149.
43 Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001) (citing Connick, 461 U.S.
at 147).
44 391 U.S. 563 (1968).
45 Id. at 571.
46 Graziosi v. City of Greenville Miss., 775 F.3d 731, 737-38 (5th Cir. 2015)
(characterizing officer’s attack on police chief’s leadership and request that the chief “get the
hell out of the way” and “just go” as an internal grievance).
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According to her complaint, Malin had “consistently voiced
her . . . opposition to City of New Orleans/OPCD consolidation issues, and in
particular as to how OPCD funds were being used.” Her email commented only
obliquely as to how OPCD funds had been used. Malin’s personal opinions and
derogatory comments about Kopplin are more in the nature of an internal
grievance.
The form of Malin’s speech—an email to colleagues in response to an
internal personnel announcement—weighs against its pertaining to a matter
of public concern. This court has held that when a public employee’s speech
reflects a “choice to inform someone outside [the workplace]” the speech is more
likely be a matter of public concern. 47 Conversely, a police officer’s private
diary entries were not matters of public concern at least in part because there
was “no effort to communicate the contents of the notebook to the public.” 48
While an employee’s choice to “communicate privately with his employer
rather than to spread his views before the public” is certainly not dispositive, 49
it is relevant to determining whether the speech is a matter of public concern. 50
Malin sent the email at issue only to her colleagues at OPCD. Based on
the facts in her complaint, she made no attempt to send the email or
disseminate its message outside the workplace. To the contrary, Malin attests
that she intended the email for an audience of one—Gordon, her supervisor—
and that it reached her co-workers inadvertently. Although Malin’s email
47 Modica v. Taylor, 465 F.3d 174, 181 (5th Cir. 2006).
48 Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360, 1362-63 (5th Cir. 1986).
49 Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979); see also
Benningfield v. City of Houston, 157 F.3d 369, 375 (5th Cir. 1998) (“The fact that the Plaintiffs
chose to file internal grievances rather than publicize their complaints is not dispositive.”).
50 See Modica, 465 F.3d at 181; Dodds v. Childers, 933 F.2d 271, 274 (5th Cir. 1991);
Thompson v. City of Starkville, Miss., 901 F.2d 456, 466 (5th Cir. 1990) (“[T]he publicization
of the speech . . . is simply another factor to be weighed in analyzing whether [the] alleged
speech addressed matters of public concern.”).
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expressed her views up the chain of command, and inadvertently, to all OPCD
employees, the email was not an attempt to change or influence department
policies, since Kopplin was leaving OPCD, nor was it an attempt to cabin
Kopplin’s ability to manage GNOF. Malin’s speech amounted only to an airing
of her personal opinions about Kopplin.
The district court properly dismissed Malin’s First Amendment claim.
III
Malin also alleges that OPCD fired her in retaliation for her complaints
that Hobson was detailing sexual encounters to Malin and other female
employees. To state a claim for retaliation, a plaintiff must show “(1) that she
engaged in activity protected by [T]itle VII, (2) that an adverse employment
action occurred, and (3) that a causal link existed between the protected
activity and the adverse employment action.” 51
Under Title VII’s “participation clause,” a plaintiff may show that an
adverse employment decision resulted after she made a charge, testified,
assisted, or participated in an EEOC investigation, proceeding, or hearing. 52
Under the “opposition clause,” the plaintiff must allege that she “opposed any
practice made an unlawful employment practice” by Title VII. 53 Malin
contends not that her employment was terminated because she cooperated
with the EEOC, but rather that OPCD ended her employment for voicing
opposition to Hobson’s alleged sex-themed chronicles. To succeed, Malin must
prove that she reasonably believed that Hobson’s conduct was an unlawful
employment practice within the meaning of Title VII 54
51 La Day v. Catalyst Tech., Inc., 302 F.3d 474, 483 (5th Cir. 2002) (quoting Long v.
Easfield Coll., 88 F.3d 300, 304 (5th Cir. 1996)).
52 42 U.S.C. § 2000e-3(a).
53 Id.; see also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427-28 (5th Cir. 2000).
54 Byers, 209 F.3d at 428.
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Title VII’s prohibition on sex discrimination includes “[t]he creation of a
hostile work environment through harassment.” 55 Discriminatory behavior
creates a hostile workplace only when it is “so objectively offensive as to alter
the ‘conditions’ of the victim’s employment” and when the victim finds it
subjectively offensive to the same degree. 56 “Conduct that is not severe or
pervasive enough to create . . . an environment that a reasonable person would
find hostile or abusive” is insufficient to give rise to a hostile-work-
environment claim. 57 In judging whether harassment is objectively severe or
pervasive enough to create a hostile environment, we consider “all the
circumstances, including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's
work performance.” 58 In doing so, we are mindful that Title VII “requires
neither asexuality nor androgyny in the workplace” and “does not reach
genuine but innocuous differences in the ways men and women routinely
interact with members of the same sex and of the opposite sex.” 59
Because her claim is for retaliation, rather than harassment, Malin need
only allege enough facts to plausibly state that a reasonable person would
believe that Hobson’s conduct was subjectively and objectively sufficient to
alter the terms of Malin’s employment. 60 The factual allegations in Malin’s
55 E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 452 (5th Cir. 2013) (en banc) (quoting
Vance v. Ball State Univ., 133 S. Ct. 2434, 2455 (2013) (GINSBURG, J., dissenting)).
56 Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); La Day v. Catalyst
Tech., Inc., 302 F.3d 474, 482 (5th Cir. 2002) (quoting Butler v. Ysleta Indep. Sch. Dist., 161
F.3d 263, 269 (5th Cir.1998)).
57 Oncale, 523 U.S. at 81 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
58 La Day, 302 F.3d at 482 (quoting Butler, 161 F.3d at 269).
59 Oncale, 523 U.S. at 81 (stating that Title VII is not a “general civility code.”).
60 See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000).
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complaint fall short of plausibly stating that a reasonable person could believe
that Hobson’s descriptions of her sex life were pervasive or severe.
According to Malin, Hobson recounted details of her sex life at work six
times. Malin was present on four of those occasions and heard about the others
from co-workers. These interactions—spread across a two-month period—do
not provide a reasonable basis to conclude that Malin was the victim of
pervasive harassment. Nor do they plausibly suggest that Hobson’s remarks
were so severe as to alter the conditions of Malin’s employment. Hobson twice
described specific sexual acts, said she had sex during lunch, and informed
Malin that she called in sick because she was with a sexual partner. Although
Hobson’s accounts were unprofessional, unwelcome and distasteful, Malin has
not alleged that Hobson interfered with her job responsibilities, nor that she
felt physically threatened by Hobson. On these facts, it is not plausible that a
reasonable person would believe Hobson’s conduct was objectively pervasive or
severe. Because Malin has not plausibly alleged that a reasonable person
would believe that Hobson’s sexual commentary created a hostile work
environment, her retaliation claim fails.
IV
Malin contends that OPCD’s decision to terminate her violates
Louisiana’s whistleblower statute. 61 To state a claim under that statute, an
employee must show that his employer retaliated for reporting an actual
violation of law. 62 In this case, Malin claims that OPCD terminated her
employment for reporting that Hobson had violated the state statue
prohibiting sexual harassment. 63 Louisiana courts look to federal
jurisprudence to decide hostile-work-environment claims under La.
61 LA. REV. STAT. ANN. § 23:967 (2017).
62 Id.
63 See LA. REV. STAT. ANN. § 23:332 (2017).
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R.S. § 23:332. 64 Because Malin has failed to state a claim under Title VII, her
state law claim fails as well.
* * *
We AFFIRM the judgment of the district court.
64 Assamad v. Percy Square & Diamond Foods, LLC, 993 So. 2d 644, 648 (La. App. 1
Cir. 2008).
16