Herster v. Bd. of Supervisors of La. State Univ. ( 2018 )


Menu:
  •      Case: 16-31242   Document: 00514414476     Page: 1   Date Filed: 04/04/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-31242                       FILED
    April 4, 2018
    Lyle W. Cayce
    MARGARET HERSTER; SCOTT SULLIVAN,                                   Clerk
    Plaintiffs-Appellants,
    v.
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY; ROD
    PARKER; KEN CARPENTER; A.G. MONACO; JENNIFER NORMAND;
    MIMI RUEBSAMEN; KIMBERLY ARP,
    Defendants-Appellees
    Appeals from the United States District Court
    for the Middle District of Louisiana
    Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
    Judges.
    CARL E. STEWART, Chief Judge:
    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.
    Case: 16-31242        Document: 00514414476        Page: 2    Date Filed: 04/04/2018
    No. 16-31242
    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.
    2
    Case: 16-31242       Document: 00514414476         Page: 3     Date Filed: 04/04/2018
    No. 16-31242
    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.
    3
    Case: 16-31242     Document: 00514414476      Page: 4   Date Filed: 04/04/2018
    No. 16-31242
    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.
    4
    Case: 16-31242      Document: 00514414476    Page: 5   Date Filed: 04/04/2018
    No. 16-31242
    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.
    5
    Case: 16-31242   Document: 00514414476    Page: 6   Date Filed: 04/04/2018
    No. 16-31242
    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
    6
    Case: 16-31242       Document: 00514414476          Page: 7     Date Filed: 04/04/2018
    No. 16-31242
    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).
    7
    Case: 16-31242    Document: 00514414476       Page: 8     Date Filed: 04/04/2018
    No. 16-31242
    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).
    8
    Case: 16-31242     Document: 00514414476     Page: 9   Date Filed: 04/04/2018
    No. 16-31242
    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.
    9
    Case: 16-31242           Document: 00514414476        Page: 10   Date Filed: 04/04/2018
    No. 16-31242
    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
    10
    Case: 16-31242     Document: 00514414476     Page: 11   Date Filed: 04/04/2018
    No. 16-31242
    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.
    11
    Case: 16-31242    Document: 00514414476      Page: 12   Date Filed: 04/04/2018
    No. 16-31242
    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
    12
    Case: 16-31242    Document: 00514414476      Page: 13   Date Filed: 04/04/2018
    No. 16-31242
    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
    13
    Case: 16-31242     Document: 00514414476      Page: 14   Date Filed: 04/04/2018
    No. 16-31242
    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,
    14
    Case: 16-31242        Document: 00514414476    Page: 15   Date Filed: 04/04/2018
    No. 16-31242
    § 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
    15
    Case: 16-31242       Document: 00514414476          Page: 16     Date Filed: 04/04/2018
    No. 16-31242
    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
    6This 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).
    16
    Case: 16-31242    Document: 00514414476      Page: 17   Date Filed: 04/04/2018
    No. 16-31242
    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
    17
    Case: 16-31242     Document: 00514414476     Page: 18   Date Filed: 04/04/2018
    No. 16-31242
    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.
    III.   CONCLUSION
    For the foregoing reasons, we AFFIRM the judgment of the district court
    dismissing Sullivan’s and Herster’s claims.
    18