# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 23

- 30340

**____________ Kristen Morales,**  Plaintiff

— Appellant **,**

versus **New Orleans City; Ed Michel,**  Interim Inspector of the Office of Inspector General, in official and individual capacities **; Bobbie Jones; Office of the Inspector General,**  Defendants —Appellees

**.**

**______________________________** Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:21

- CV

- 1992

**______________________________** Before **Higginbotham ,**  **Smith ,**  and **Higginson ,**  Circuit Judges

. **Per Curiam :**  ***** Kristen Morales was fired by the New Orleans Office of Inspector General (“OIG”)

. Morales contends it was retaliation for her protected workplace conduct

.

**_____________________**

* This opinion is not designated for publication. See **5th Cir . R.**  47.5. United States Court of Appeals Fifth Circuit 

### FILED June 17, 2024 Lyle W. Cayce Clerk Case: 23-30340 Document: 54-1 Page: 1 Date Filed: 06/17/2024No. 23

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2 She litigated her discriminatory and retaliatory

- discharge claims before the New Orleans Civil Service Commission (“CSC”). The CSC deter mined she was terminated for legal cause

— giving away an OIG

- owned iPhone and then lying about it

— and a Louisiana appellate court affirmed.
Morales also filed suit in federal district court against OIG, the City of New Orleans (“CNO”) , and various OIG employees, alleging that she was fir ed without legal cause for protected activities in violation of Title VII. In addition to this Title VII retaliation claim, Morales brought various state la w claims and a claim for pre

- termination , disparate treatment in violation of Title VII. The district court, after finding that all of Morales’ s claims were precluded, 1 granted defendants summary judgment. We affirm summary judgment as to each claim exce pt for the disparate

- treatment claim. We vacate summary judgment as to that claim and remand for further proceedings

.
I. A. The Termination Morales , employed as an Investigator by OIG , was suspended in December 2020 and was fired shortly thereafter. O IG justified her suspen

sion and termination on two grounds:
First , OIG stated, in the letter of suspension, that Morales had vio

lated CNO policy by, inter alia , “g [iving] an OIG

- owned iPhone to Reginal Fournier, a private individual unaffiliated with OIG or the CNO , without

**_____________________**
1 Some authorities use “res judicata” or “collateral estoppel” to refer inter change

ably to claim preclusion, issue preclusion, or the general concept of preclusion. To avoid confusion, we adhere to the following terminology: (1) “Res judicata” refers on ly to claim preclusion. (2) “Collateral estoppel” refers only to issue preclusion. (3) “Preclu sion” or “the preclusive effect of judgments” refers to the doctrine of preclusion in general

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3 authorization .”
Second , OIG explained that Morales lacked candor when OIG ques

tioned her about the iPhone incident. At that interview, Morales initial ly claimed that she did not recall whether the iPhone was OIG ’s . But she changed tack once the interviewers confirmed to her that the iPhone was, in fact, OIG property

— thereon claiming that her superiors had authorized the donation. Specifically, she ave rred that she had consulted with OIG legal counsel, had received approval from her supervisor and the Inspector Gen

eral , and had retained written documentation of that approval.
OIG , investigat ing the veracity of Morales’ s statements , asked her for that documentation . S he provided none . Nor was OIG able to find any evi

dence of that alleged approval. OIG then contacted the individuals Morales had referenced in the interview. None could corroborate her claim . B oth her supervisor and the Inspector General denied approving any such donation ; t he legal counsel denied knowledge of the same. Based on the results of the investigation, OIG found that Morales gave away an OIG

- owned iPhone without authorization; it thus concluded that she violated CNO po licy. OIG further found that she had falsely claimed she was authorized to donate the iPhone; it thus concluded that she lacked candor.
Given those findings and conclusions, Ed Michel

— then Interim Inspec tor General

— concluded there was cause to suspend and terminate Morales. He therefore placed her on emergency suspension and provided her with written notice of her upcoming pre

- termination hearing.

B. The Administrative Hearing Morales’ s pre
- termination hearing was about three weeks after her

su spension. At that hearing, OIG had the burden to prove by a prepon der

ance of the evidence (1) that it had “legal cause” to discipline or terminate Case: 23-30340 Document: 54-1 Page: 3 Date Filed: 06/17/2024No. 23

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4 her and (2) that the punishment imposed was “commensurate with the dere

liction.” She was represented by counsel and was allowed to present evi

dence and averments in her favor

. As part of her defense, Morales asserted that she was being suspended and terminated in retaliation for , inter alia , exercising her “federally pro

tected right to file a charge with t he EEOC.” Additionally, she contested the other policy violations listed in her suspension letter. But she did not offer any evidence showing that she was expressly authorized to donate the OIG iPhone. At the conclusion of the proceedings, the hearing examiner f ound that (1) Morales violated CNO policy by donating the OIG iPhone without author ization and (2) she lacked candor in OIG’s investigation. It thus con

cluded that OIG did not “abuse[] its discretion or act arbitrarily by termin

ating [her].”

C. The State A ppe llate Proceedings Morales appealed her suspension and termination to the CSC, which then held a three

- day trial. She was represented by counsel, who offered evi

dence, proffered witness testimony, and cross

- examined OIG’s witnes ses. The CSC agreed with the hearing examiner’s findings and determined that Morales’ s “actions in regard to the iPhone, especially her lack of candor in wrongfully claiming she had permission to give it to Fournier when there is absolutely no evidence t o support that assertion, justified the suspension and termination.” It also concluded “that the OIG ha[d] carried its burden of proving the occurrence of [Morales’ s ] wrongful activity and that her con

duct impairs the efficiency of the public service in which the OIG is en

gaged.” Consequently, the CSC denied her appeal, thereby affirming her suspension and termination. Case: 23-30340 Document: 54-1 Page: 4 Date Filed: 06/17/2024No. 23

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5 She then appealed to a Louisiana state court of appeal. The cour t observed that “the CSC denied [her] appeal based solely on its findin g that the OIG had good cause to terminate [her] for the iPhone

- related violation

. ” Morales v. O IG , 366 So. 3 d 526, 533 n.7 (La. App. 4 th Cir. 2022). It therefore affirmed the CSC’s decision

. Id. at 540. The Louisiana S upreme C ourt denied review

.
II. During the pendency of the state appellate proceedings , Morales sued defendants in federal district court

. S he raised various statutory and non
statutory claims for , inter alia , disparate treatment, retaliation, violations of human rights, deprivation of property rights, unfair trade practices, and inten tional infliction of emotional distress (“IIED”)

. After the conclusion of the state proceedings, OIG and CNO filed sep

arate motions for summary judgment. 2 The district court granted summary judgment and dismissed her claims. This appeal follow ed

.
I II

. Under 28 U.S.C. § 1738, “decisions that come from a judicially re
viewed action by a state administrative body” are “entitled to the same full faith and credi t in every court of the United States as it has by law or usage in courts of such State.” Stafford v. True Temper Sports , 123 F.3d 291, 295 (5th Cir. 1997) (per curiam) (cleaned up). Those decisions receive the same pre
clu sive effect in federal court a s they would in the courts of that state. Therefore, Louisiana law determines the preclusive effect of Mor

ales’ s prior proceedings. Id. (citing Marrese v. Am. Acad. of Ortho. Surgeons ,

**_____________________**
2 OIG’s motion for summary judgment was filed on behalf of OIG, Michel , and Jones. Case: 23-30340 Document: 54-1 Page: 5 Date Filed: 06/17/2024No. 23

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6 470 U.S. 373, 382 (1985)). **La. R.S.** § 13:4231 provides , E xce pt as otherwise provided by law, a valid and final judg

ment is conclusive between the same parties, except on appeal or other direct review, to the following extent: (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment. (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the liti

gation are extinguished and the judgment bars a sub sequent action on those causes of action. (3) A judgment in favor of either the plaintiff or the defen

dant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and deter mined if its determination was essential to that judgment.
**La. R.S.** § 13:4231

. Louisiana courts interpret that provisi on as embrac ing

“ both claim preclusion (res judicata) and issue preclusion (collateral estop

pel).” Henkelmann v. Whiskey Island Pres., L

. L

. C

. , 145 So. 3d 465, 470 (La. App. 1 st Cir. 2014).

I V. Collateral estoppel bars Morales from relitigating th e cause of her ter

mination. As quoted above, collateral estoppel bars relitigation of “a ny issue actually litigated and determined if its determination was essential to that judgment. ” **La. R.S.** § 13:4231 (3). Both conditions are satisfied with re

spect to the cause of Morales’ s termination.
First , t hat issue was actually litigated. A t each stage of the prior pro

ceedings, OIG averred that it suspended and fired Morales for giving away the OIG iPhone and lacking candor. The validity of OIG’s justification was Case: 23-30340 Document: 54-1 Page: 6 Date Filed: 06/17/2024No. 23

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7 likewise contested by Morales at each stage of the proceedings

. Indeed, in her pre

- termination hearing response , she claimed that the adverse em

ployment action [was] done in retaliation for exercising my right as a [c]ivil [s]er vant to file an appe al; my right as a City of New Orleans employee to file grievances for the harassment by the OIG, and my federally protected right to file a charge with the EEOC and not suffer retaliation. Thus , the cause of her termination was actually litigated in the pr ior proceeding.
Second , t hat issue was essential to the judgment in the state proceed

ing. The CSC was required, inter alia , “to decide .

. . whether [OIG] ha [d] a good or lawful cause for taking disciplinary action.” Whitaker v. New Orleans Police Dep’ t , 863 So. 2d 572, 574 (La. App. 4 th Cir. 2003) (citation omitted)

. In other words, the reason behind her firing was a central issue that the CSC had to resolve to render its decision

. The hearing examiner observed that OIG admitted that it fired Mor

al es based on the iPhone incident and her lack of candor. That, the CSC agreed, was the “primary bas[is]” for her termination. And the state appel

late court affirmed those findings , not ing that “the CSC denied [her] appeal based solely on its finding that the OIG had good cause to terminate [her] for the iPhone

- related violation.” Morales , 366 So. 3d at 533 n.7. Thus, Morales is bound to the prior proceeding ’s determination that OIG fired her solely because of the iPhone

- rela ted viola tion.
Morales contends that preclusion shouldn’t apply because of various alleged procedural deficiencies in the state administrative proceeding. She claims, inter alia , (1) that she did not have the opportunity “to serve interrog

a tories, requests for a dmissions, or requests for production of documents” and (2) that the state appellate review process was “based on a mixed stan

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8 dard of review[] with respect to the iPhone allegation only.” N either rises to the level of a denial of constitutional due proce ss. S tate proceedings failing to satisfy the requirements of constitutional due process are not accorded preclusive effect. See Kremer v. Chem. Constr. Corp. , 456 U.S. 461, 48 2

– 8 3 (1982) . The fundamental requirement of due process is “ the opportunity to be heard ‘at a meaningful time and in a mean

ingful manner. ’” 3 “ In the pre

- deprivation context, all that federal due pro

cess requires is ‘ notice and an opportunity to respond. ’ ” 4 The record shows that Morales received both.
Before her termination, Morales was timely issued an eleven

- page letter detailing OIG’s justifications for the adverse employment action

. Th at letter provided three

- weeks’ notice of her pre

- termination hear ing and of her right to have counsel present and to submit evidence in her favor. She was also “ given an opportunity to respond to [OIG’s] reasons for her dis

charge .” Id. She took advantage of that opportunity by submitting a fifteen

page letter respon ding, in detail, to each of OIG’s proffered justifications for firing her. In short, during the pre

- termination phase of the proceedings, Morales was “afforded the full panoply of federal due process protections.” Id. ; see also Darlak v. Bobear , 814 F.2 d 1055, 1062

– 63 (5th Cir. 1987) (con

-

**_____________________**
3 Mathews v. Eldridge , 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo , 380 U.S. 545, 552 (1965)). Three factors guide our identifying the specific dictates of due process: (1) “ the private interest that will be affected by the of ficial action ” ; (2) “ the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards ” ; and (3) “ the [ g ] ov ern
ment ’ s interest, including the function invol ved and the fiscal and administrative bur dens that the addi tional or substitute procedural requirement would entail. ” Id. at 335.

4 Dearman v. Stone Cnty. Sch. Dist. , 832 F.3d 577, 583 (5th Cir. 2016) (quoting McDonald v. City of Corinth , 102 F.3d 152, 155 (5th Cir. 1996) ). Case: 23-30340 Document: 54-1 Page: 8 Date Filed: 06/17/2024No. 23

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9 cluding that suspension followed by opportunity for a hearing comported with due process). Likewise, Morales received all the post

- deprivation process guaran

teed by the federal constitution. Morales , with counsel, exe rcised her right to appeal to the CSC, which had the authority to “award costs, attorney fees, and back pay, and . . . [to] restore all benefits and emoluments of office.” 5 There, she liti gated her claims for three days and was allowed to subpoena docum ents, testify, and cross

- examine witnesses. Fur ther, she was afforded the right to judicial review of the CSC’s determination in a Louisiana appellate court. Put another way, after her termination, Morales had “a public hear

ing” that allowed her “the opportunity to present [her] evidence” and was “complemented by administrative as well as judicial review.” Kremer , 456 U.S. at 484

– 85 . Beyond dispute is that the prior state proceedings were more than sufficient to satisfy the procedural requireme nts of the Due Pro

cess Clause. See id.
Morales also avers that Title VII claims are inherently exempt from the preclusive effects of prior state administrative proceedings. She r elies on Gar ner v. Giarrusso , 571 F.2d 1330 , 1335

– 37 (5th Cir. 1978), and Frazier v. King , 873 F.2d 820 , 823

– 24 (5th Cir. 1989) , wherein we denied res judicata effect to prior CSC proceedings.
Both Garner and Frazier are inapposite, for both denied res judicata effect to prior unreviewed state administrative decisions. I n Frazier , the prior state proceeding was appealed only to the Louisiana Civil Service

**_____________________**
5 Johnson v. Bd. of Supervisors of La. State Univ. , 32 So. 3d 1041, 1047 (La. App. 2d Cir. 2010) (citing Reimer v. Med. Ctr. of La. at New Orleans , 688 So. 2d 165, 169 (La. App. 4th Cir. 1997) ). Case: 23-30340 Document: 54-1 Page: 9 Date Filed: 06/17/2024No. 23

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10 Commission

— not the Louisiana courts. Id. at 823. Likewise, i n Garner , there is no indication that the plaintiff appealed his discharge beyond the CSC. 571 F.2d at 1335.
T hat procedural distinction makes all the difference. At most, u n
reviewed state administrative decisions are not entitled to preclusive effect

a gainst Title VII claims in subsequently filed federal suits

. 6 But we must give pre clusive effect to decisions that “ come from a judicially reviewed action by a state administrative body,” for “such judgments are entitled to the same full faith and credit in every court of the United States as it has by law or usage in courts of such State.” Stafford , 123 F.3d at 29 5 (c iting 28 U.S.C. § 1738) (cleaned up). Finally, Morales contends that preclusion cannot apply to her claims against Michel , Jones , and CNO because none was party to the prior proceeding. Under Louisiana law, the party

- identity requirement “does not mean
t hat the parties must have the same physical identity, but that the parties must appear in the same capacities in both suits.” Burguieres v. Pollingue , 843 So. 2d 1049, 1054 (La. 2003) . So, generally, “[a] party appearing in an action in one capacity, ind ividual or representative, is not .

. . bound .

. . in a subsequent action in which he appears in another capacity.” Id. (citation omitted). But that requirement is concerned only with the identity of the party against whom preclusion is invoked. In othe r words , the party invoking pre
clu sion need not be involved in the prior proceeding. See Williams v. Orleans

**_____________________**
6 See Univ. of Tenn. v. Elliott , 478 U.S . 788, 796 (1986) (“Congress did not intend unreviewed state administrative proceedings to have preclusive effect on T itle VII claims.”). Case: 23-30340 Document: 54-1 Page: 10 Date Filed: 06/17/2024No. 23

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11 Levee Dist . & I ts Bd. of Comm’rs , 31 So. 3d 1048, 1049 (La. 2010) (per curiam)

. Indeed, the Louisiana S upreme C ourt addressed this question in Wil

liams , in which a city employee alleged, inter alia , that he was wrongfully terminated in violation of federal and state employment discrimination law. 7 Though a prior proceeding had already determined that the employe e was fired for legal cause, the state trial and intermediate court s held that preclu

sion did not apply to his claims against defendants who were not parties to the prior proceeding. 8 Reversing, the s upreme c ourt explained that Louisiana’s party

identi ty requirement is relevant only when preclusion is “being used against a nonparty to the litigation.” Williams , 31 So. 3d at 1049 (emphasis sub sti

tuted ). That requirement was met because the employee

— i.e., the party against whom preclusion was invoked

— “was a party to the litigation in which it was determined that he was fired for cause

. ” Id. Accordingly, the

non
- party defendants in Williams could invoke preclusion “ insofar as it ap

plied to claims

. . . resolved by the [prior] litigation whic h determined that [the employee] was lawfully terminated for insubordin a tion .” Id.
S o too here. Michel, Jones, and CNO

— like the non

- party defen dants in Williams

— have invoked preclusion against Morales. She is a party to both proceedings , so t he party

- identity requirement is satisfied. Thus , all of the defendants may invoke collateral estoppel to preclude Morales from relitigating the cause of her termination.
In sum , t he state proceeding determined that the sole and legal cause

**_____________________**
7 Williams v. Orleans Levee D ist. & I ts Bd. of Comm’rs, 24 So. 3d 307, 310 (La. App. 4 th Cir. 2009), rev’d , 31 So. 3d 1048 (La. 2010) (per curiam)

.
8 Id. at 314 (“ Although the First Circuit held that [he] was lawfully terminated, the State was not a party to that litigation. Accordingly, res judicata does not apply. ”). Case: 23-30340 Document: 54-1 Page: 11 Date Filed: 06/17/2024No. 23

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12 for Morales’ s firing was the iPhone

- related violation. Collateral estoppel bars relitigation of that determination of ultimate fact

. S o s he can no longer bring forth “new evidentiary facts .

. . to obtain a different determination of that ultimate fact.” 9

V. A

. Retaliation Claim s To establish a prima facie case of retaliation under the Louisiana Employment Discrimination Law (“LEDL”), **La. R.S.** § 23:301 et seq. , and Title VII , Morales must show, inter alia , that “ a causal connection exists between t he protected activity and the adverse action .” See Outley v. Luke & Assocs., Inc. , 840 F.3d 212, 219 (5th Cir. 2016) (citation omitted)

. 10 Put another way, she must demonstrate that she would not hav e been suspended and fired but

- for OIG’s retaliatory motive.
T hat is a showing Morales cannot make. The prior proceeding estab

lished, by a preponderance of the evidence, that OIG’s proffered justification

was the reason she was fired. She cannot contest that OIG fired her for the iPhone

- related violation . It is therefore impossible for her to prove pretext by a preponderance of the evidence , for she cannot recover unless she rebuts

“ each nonretaliatory reason articulated by the employer.” Newbury v. City of Windcrest , 991 F.3d 672, 678 (5th Cir. 2021) (cleaned up). Consequently, collateral estoppel bars her claim of retaliator y discharge. Pushing back, Morales posits that OIG could have fired her for two

**_____________________**
9 **Restatement (Second) of**  **Judgments** § 27 cmt. c ( **Am. L. Inst.** 2023)

.
10 LEDL and Title VII r etaliation claims are analyzed identically. See Hartley v. Univ. of Holy Cross , 370 So. 3d 1151, 1163 (La. App. 4 th Cir. 2023); see also id. at 1159 (“ LEDL mirrors federal employment discrimination law; thus, Louisiana courts look to federal jurisprudence in construing it. ” (citations omitted)). Case: 23-30340 Document: 54-1 Page: 12 Date Filed: 06/17/2024No. 23

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13 reasons

— one of which was lawful (the iPhone

- related violation), the other unlawful (retaliation). She contends that Bostock v. Clayton County , 590 U.S. 644 (2020), changed Tit le VII ’s causation standard such that a plaintiff can recover under the statute even if one basis for the termination is not unlawful.
Morales’ s reliance on Bostock is misplaced. Though Bostock “ ex
panded the groups of individuals protected by Title VII, it in no way altered the pre existing legal standard” applicable to proving claims of retaliation. Newbury , 991 F.3d at 677 (citation omitted) . It remains the plaintiffs’ burden to “rebut each .

. . nonretaliatory reason articulated by the employer.” Id.
at 678 (cleaned up). That is precisely why Bostock observed that “Title VII has nothing to say” about an employer that , irrespective of sex , would have fired an employee for tardiness or incompetence

. 590 U.S. at 660. Regardless, Morales’ s erroneous reading of Bostock does not advance her cause. The prior proceeding determined that the iPhone

- related violation

— that is, OIG’s lawful reason f or termination

— was the sole reason she was fired . That determination necessarily rejects all other causes, including her assertion that she was fired in retaliation for engaging in Title VII

- protected activity.
T he state proceeding leaves no room for us to infer that Morales’ s firing was motivated, in any part, by unlawful retaliatory intent. Thus, she cannot show a causal relationship linking her Title VII protected activity to her suspension and termination. See Outle y , 840 F.3d at 219. Her retaliation claims fail.

B

. Due Process Claim s M orales claims that OIG, CNO, and Miche l deprived her of pro

cedural and substantive due process

. Her procedural due process claim fails for two reasons. One, as estab

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14 lished earlier, the prior state proceeding

— including the pre

- termination hear ing and the post

- deprivation appeals

— comported with the strictures of constitutional due process. See supra part I V. B .1 . Two, it is fatally wounded by collateral estoppel. She raised th at exact issue before the CSC and Loui

siana appellate court. Both appellate tribunals rejected her claim, the latter finding “no violation of [her] Due Process rights.” Morales , 366 So. 3d
at 539. Nor is there any merit to her substantive due process claim. “Public officials violate substantive due process rights if they act arbitrarily or capri

ciously. ” Jones v. La. Bd. of Supervisors of Univ. of La. Sys. , 809 F.3d 231, 240 (5th Cir. 2015) (citation omitted). “ To prove a su bstantive due process vio

lation in this context, an employee must show that a public employer ’ s deci

sion ‘ so lacked a basis in fact ’ that it could be said to have been made ‘ without professional judgment. ’ ” Id. (citation omitted). Morales cannot make t hat showing, for she is bound to the prior proceeding’s determination that OIG had legal cause to fire her for the iPhone

- related violation. See supra part I V. A

. C

. Claims Against Jones Morales brings two claims against Jones under state tort law and the Louisiana Unfair Trade Practices Act (“LUTPA”), see **La. R.S.** § 51:1405, et. seq

. Claiming IIED , Morales alleges that Jones “falsely reported” an inci

dent that triggered OIG’s investigation into the iPhone

- related violation. That investigation, in turn, resulted in Morales’ s suspension and termination.
Her IIED claim is meritless. Louisiana courts have consistently lim

ited recovery for emotional distress from “ workplace setting [ s ]

. . . to cases which involve a pattern of deliberate, repeated harassment over a period of Case: 23-30340 Document: 54-1 Page: 14 Date Filed: 06/17/2024No. 23

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15 time .” Nicholas v. Allstate Ins. Co. , 765 So. 2d 1017, 1026 (La. 2000) (cita

tions omitted). The complaint pleads, at most, three , non
- outrageous, isolated incidents of conduct . T hat is not e nough to raise an IIED claim. 11 Furthermore, u nder Louisiana tort law, plaintiffs must prove, inter alia , that “ the defendant ’ s
. . . conduct was a legal cause of the plaintiff ’ s injuries .” Lemann v. Essen Lane Daiquiris, Inc. , 923 So. 2d 627, 633 (La. 2006) (citation omitted). T he allegedly tortious conduct must therefore be “a cause

- in

- fact of [the] harm ”

— e.g
. , “a substantial factor in bringing about that harm.” 12 As explained in LaBove v. Raftery , 802 So. 2d 566 , 582 (La. 2001), legal termination is a superseding cause in an IIED claim seeking recovery for emo
tional distress resulting from that termination. Morales’ s losses were caused solely by her iPhone

- related violation

— a legal basis for termination

—

“ rather than any attempt to inf lict severe emotional distress .” Id

. 13 Thus, Jones’ s allegedly tortious conduct was not the legal cause of Morales’ s emo
tional distress.
Also without merit is Morales’ s LUTPA claim . She alleges that Jones

**_____________________**
11 See Nicholas , 765 So. 2d at 1027 (collecting cases and discussing Stewart v. Parish of Jefferson , 688 So. 2d 129 2 (La. App. 5 th Cir. 1996), where “[IIED] was not shown, even though a supervisor maintained two

- year ’ s harassment

. . . which ultimately led to the employee ’ s termination ”); see also Beaudoin v. Hartford Accident & Indem. Co. , 594 So. 2d 1049, 1051

– 52 (La . App. 3 d Cir. 1992) (holding supervisor’s eight

- month pattern of abuse, including falsely accusing employee of mistakes, did not give rise to IIED claim).

12 Dixie Drive It Yourself Sys. New Orleans Co. v. Am. Beverage Co. , 137 So. 2d 298 , 302 ( La. 1962) (citations omitted). “ The rules on cause in fact for negligent conduct

. . . appl [y] .

. . in the case of intentional conduct .” **Restatement (Second) of Torts** , § 870, cmt. l ( **Am. L. Inst.** 2024) (citing **Restatement (Second) of Torts** , §§ 431

– 34 ( **Am. L. Inst.**  2024)); see Hubbard v. Oswalt , 169 So. 3d 760, 763 (La. App. 2 d Cir. 2015) (“A critical element in any tort claim is proving factual cause.”).

13 See **Restatement (Second) of Torts** § 432 (1) ( **Am. L. Inst.** 2024)

. Case: 23-30340 Document: 54-1 Page: 15 Date Filed: 06/17/2024No. 23

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16 made a false representation “regarding the nature and/or origin of reports

con cerning Morales’ behavior.” That claim is “unbelievably frivolous. ” 14 LUTPA pro scribes “[u]nfair methods of competition and unfair or deceptive acts or prac tices in the conduct of any trade or commerce .” **La. R.S.** § 1405(A) (empha sis added). Plainly, Jones and Morales did not engage in “trade or commerce.” See **La. R.S.** § 1402(10). So, Morales’ s claims against Jones were properly dismissed

.
D. Disparate

- Treatment Claim Morales contends that the state administrative determination does not bar her disparate

- treatment claim arising from facts that allegedly occurred before her suspension and removal

. Morales points to Count Five of the Third Amended Complaint, which pleaded that OIG treated Morales diff erently on account of her sex in three instances

. ECF No. 53 at 32

- 33. First, she received a letter of reprimand for not timely entering her hours in Wingswept

— OIG’s case management system

— but William Bonney, Michael Centola, and Terrance Barret did not

. Id. at 32. Second, her request for a five

- percent pay increase following her attaining a particular certification was denied

. Id. at 32

- 33. Third, she was required to maintain hours for her certifications, but her male colleagues were not. Id. at 33

. We agree that the disparate

- treatment claim, premised on these alleged pre

- removal incidents, is not precluded by the state administrative determination that her removal was for giving away an OIG

- owned iPhone and lying about it and was thus proper. Th e determination bars Morales from relitigating her removal but it does not foreclose Morales from seeking

**_____________________**
14 See United States v. States , 242 F. App’x 362, 363 (7th Cir. 2007) (per curiam)

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17 redress for the alleged pre

- removal disparate treatment. That Morales’s complaint also speaks broadly to a “campaign of retaliation” following these i ncidents and her complaints about them does not convert th is pre- removal , disparate

- treatment claim into a challenge to her ultimate removal. 15 Defendants did not set out an argument below for why the state administrative determination that the removal wa s proper precluded litigation of the pre

- removal, non

- retaliation, discrimination claim made in Count Five. And Morales sufficiently distinguished her pre

- removal , disparate

- treatment claim in her opposition to the motions for summary judgment, arguing that “[t]he present suit encompasses issues that came months before the suspension and termination that was central to the CSC hearing ,” ECF 71 at 11, “the basis of this suit arises from Morales’s EEOC charge filed” “almost a month before her initial suspens ion ,” id. at 7, and the “ subsequent retaliatory conduct that encompasses the suspension and termination has become part of this suit but was not the initial claim for discrimination ,” id. at 8. 16

**_____________________**
15 The factual background of Morales’ s complaint also distinguishes between the claims , noting that she “ asserts that not only has she been retaliated against for opposing and reporting discriminatory, unethical, and illegal behavior, but that other employees outside her protected classes of race and gender at OIG have been treated more favorably than her,” before going on to list the alleged incidents discussed above. ECF 53 at 24

- 25.

16 The dissent argues that Morales “aver[ ed ] that she could succeed on her title VII claims only if a jury found pretextual the legitimate reason for her termination ” and so could not have “actually believed that Count Five was entirely separate all along

. . . .” Diss. Op. at 2 (citing ECF 71 at 18) (emphasis added). While her summary judgment opposition did argue that “a jury could find the[] reasons [for her removal] were pretext,” she also argued that a jury could find that she “would not have been disc riminated against and later terminated had it not been for illegitimate racial and gender reasons and retaliation.” ECF 71 at 18. As stated above, Morales is incorrect that she could litigate that her removal was retaliatory (and the iPhone incident as a basis for removal was pretextual ), but we agree with her separate argument that she was not barred from litigating whether she was discriminated against before her termination. Case: 23-30340 Document: 54-1 Page: 17 Date Filed: 06/17/2024No. 23

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18 * * * The summary judgment is **AFFIRMED** on each claim except for Morales’ s disparate

- treatment claim. The summary judgment on the disparate

- treatment claim is **VACATED** and we **REMAND** for further proceedings on that claim. Case: 23-30340 Document: 54-1 Page: 18 Date Filed: 06/17/2024No. 23

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19 **Jerry E. Smith** , Circuit Judge : The majority’s well

- written opinio n correctly dismisses most of Mor

ales’s claims. But it errs in vacating and remanding Count Five

— her sex

based disparate

- treatment claim

— thereby prolonging a case that should be doomed to failure before considering its merits. I respectfully dissent.
Mo rales’s disparate

- treatment claim is dead in the water for two reasons. It is both (1) forfeited on appeal and (2) inadequately pleaded. Either is a sufficient basis for affirming the summary judgment.

I. The majority vacates and remands Count Five of th e Third Amended Complaint, which it construes as pleading a claim based on facts separate from those relevant to Morales’s suspension and termination. See Op. at 16

– 17 & n.15. Assume, arguendo , that the majority is correct. But see infra part II. Even so, it cannot avoid the pesky issue of forfeiture. At oral argument, Morales’s counsel was asked whether she had con

tended that the allegations of discrimination “littered throughout” her com

plaint were unrelated to the removal. O.A. at 10:29

– 50. Couns el responded in the affirmative. See O.A. at 10:50

– 11:00. Just one problem

— the record on appeal belies that representation. In her response to OIG’s motion for summary judgment, the only legal basis Morales advanced regarding Count Five was her purport ed inability “to raise affirmative defenses in her New Orleans CSC hearing.” ECF No. 62
at 13. Likewise, her opposition to the City’s motion for the same did not aver that Count Five was predicated on facts independent of her suspension and
ter min ation . Instead, she relied primarily on Kremer v. Chemical Construction Corp. , 456 U.S. 461 (1982), to claim that the prior proceeding “deprived her of sufficient opportunity to be heard on her discrimination, retaliation[,] and Case: 23-30340 Document: 54-1 Page: 19 Date Filed: 06/17/2024No. 23

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20 due process” claims. See ECF N o. 71 at 15

– 21. The only other legal basis Morales advanced in opposing dismissal of Count Five relies on her misinterpreting Bostock v. Clayton County , 590 U.S. 644 (2020). Specifically, she responded to the City’s motion by averring that her title VII claims were “not foreclose[d]” because “a jury could still find

. . . pretext[ual]” OIG’s legitimate and non

- discriminatory reason for firing her (i.e., the iPhone

- related violation). ECF No. 71 at 18. Morales’s district court filings therefore show that she never made that court aware that an independent factual basis underlies Count Five. If anything, her responses affirmatively suggest the opposite by treating the facts underlying Count Five and her wrongful

- termination claims as one and the same . Af ter all

— if Morales had actually believed that Count Five was entirely separate all along

— why would she even bother averring that she could succeed on her title VII claims only if a jury found pretextual the legit i mate reason for her termination? See ECF No. 71 at 18. No wonder the district judge, in granting summary judgment, re

marked that “[t]he parties d[id] not dispute that all of Plaintiff’s claims asserted in state and federal court arise from Plaintiff’s suspension and ter min

ation by the OIG.” ECF No. 66 at 6. Morales is making a last

- ditch, Hail Mary attempt to save her case. That much is plain as day. And just as obvious is the result that must follow: Count Five is forfeited “because a contention not raised before the district
court ca nnot be asserted for the first time on appeal.” Frye v. Anadarko Petrol eum Corp. , 953 F.3d 285, 291 (5th Cir. 2019) (cleaned up) (Higginson, J.).In concluding to the contrary, the majority buys in to Morales’s tactical sleight

- of

- hand

— hook, line, and sinker. The fact of various factual allegations “littered throughout” the complaint, O.A. at 10:29

– 50, is hardly a substitute for Morales’s burden of “present[ing] the issue face up and Case: 23-30340 Document: 54-1 Page: 20 Date Filed: 06/17/2024No. 23

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21 squarely in the trial court,” Thomas v. Ameritas Life Ins. Corp. , 34 F.4th 395, 402 (5th Cir. 2022) (cleaned up). As already noted, in responding to motions for summary judgment, Morales never explained that Count Five was supported by factual allegations wholly independent of her suspension and termination. Further, nev er once mentioned in either response was the allegation (1) that she was denied “a request for a five

- percent pay increase following her attaining a particular certification” or (2) that “she was required to maintain hours for her certi fications, but her male colleagues were not.” Op. at 16. Further still, not once did Morales’s response to OIG’s motion for sum

mary judgment connect her (3) “receiv[ing] a letter of reprimand for not timely entering her hours in Wingswept” with the cause of action in Cou ntFive. That allegation was only partially mentioned in discussing factual background to bolster her claim that she was rarely disciplined. See ECF No. 62 at 1

– 2. Indeed, all Morales said in her filing was that “she received a letter of repri mand for failure to timely enter hours into a time keeping program.” ECF No. 62 at 2. Notice what’s missing? Any mention whatso ever that her male colleagues were not reprimanded for failing to do the same. See Op. at 16. So, at most, the majority identifies three allegations of sex

- based dis

parate treatment that were “included only as part of a beginning point of the narrative that led to” nothing other than Morales’s wrongful

- termination claims. M.D.C.G. v. United States , 956 F.3d 762, 770 (5th Cir. 2020). None of the allegations was tied to Count Five, and none of the briefs in response avers that Count Five relied on facts independent from her suspension and termination. See id. at 770

– 71. “Thus, we can only but con clude” that Morales’s claim on Count Five “has been waived.” Id. at 771. No matter Count Five’s merits, Morales has Case: 23-30340 Document: 54-1 Page: 21 Date Filed: 06/17/2024No. 23

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22 “waived them by failing to .

. . press and not merely intimate the argument during the proceedings before the district court.” Id. at 770 (quoting FDIC v. Mijalis , 15 F.3d 1314, 1327 (5th Cir. 1994)).
II. Now, assume, arguendo , that forfeiture does not apply. But see supra part I. Count Five still fails. The majority misinterprets Morales’s complaint when it purportedly identifies three in stances where the Third Amended Complaint pleaded sex

based disparate treatment. See Op. at 16. None supports a disparate

- treatment claim, for all were pleaded as retaliatory acts that resulted in her sus

pension and termination.
The timeframes establ ished in the Amended EEOC Charge and ThirdAmended Complaint unequivocally show that Morales viewed those three instances purely as retaliatory conduct. In her EEOC Charge, Morales described OIG’s conduct following her submission of an internal complaint “[i]n or around late 2018” as a “continuing action” of “retaliation.” ECF No. 62

- 5 at 5. That description comports with paragraph 36 of her Com

plaint, in which she alleged that the incidents that occurred “after [she] lodg[ed] internal complaints” were acts of “retaliat[ion] .

. . attempt[ing] to discredit her and harm her professional reputation and force her out of her job.” ECF No. 53 at 6.So, according to both her EEOC Charge and her Complaint, acts occurring after “late 2018” were not discrete a nd independently actionable instances of disparate treatment. Instead, they were part of a series of retali atory acts intended to, inter alia , “force [Morales] out of her job.” ECF No. 53 at 6. That timeline wreaks havoc on the majority’s position. Of the three instances referenced in its opinion, all were alleged to have occurred after Case: 23-30340 Document: 54-1 Page: 22 Date Filed: 06/17/2024No. 23

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232018. The letter of reprimand was issued in September 2020, and the remaining two incidents occurred in May 2 020 and January 2019. Thus, under Morales’s own theory of the case, all three inci dents were not acts of sex

based discriminatory treatment

— but acts of retaliation taken “to force her out of her job.” ECF No. 53 at 6. Consequently, those three inciden ts factually enhance her claims of retaliation

— and not disparate treatment. Morales has not sufficiently pleaded a prima facie case of the latter. 1 Count Five must fail. 2

* * * * * In sum, the majority gets a lot right. To its credit, it correctly rec og
nizes that collateral estoppel precludes most of Morales’s claims. But it

none theless errs in vacating and remanding Count Five

— a claim that is both (1) forfeited on appeal and (2) inadequately pleaded. The summary judgment should be affirmed in full , so I respectfully dissent.

**_____________________**
1 To state a claim for disparate treatment under the McDonnell Douglas burden

shifting framework, Morales bears the initial burden of demon strat ing a prima facie case. See Outley v. Luke & Assocs., Inc. , 840 F.3d 212, 216 (5th Cir. 2016). That requires her to show, inter alia , that she “ was subject to an adverse employment actio n .” Id. (cita tion omitted). None is alleged here, so she fails “ to state a claim to relief that is plausible on its face.” Johnson v. Harris Cnty. , 83 F.4th 941, 945 (5th Cir. 2023) (cleaned up).

2 We “can affirm the granting of summary judgment on any ground supported by the record, even where the district court granted summary judgment based upon erroneous reasoning.” Elmen Holdings, L.L.C. v. Martin Marietta Materials, Inc. , 86 F.4th 667, 677 n.10 (5th Cir. 2023) (citation omitted). Case: 23-30340 Document: 54-1 Page: 23 Date Filed: 06/17/2024