IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30903

LORI RAYBORN, 

 Plaintiff - Appellant

v.

BOSSIER PARISH SCHOOL BOARD, erroneously referred to as Bossier 

Parish School System; NICHOLE BOURGEOIS, in her personal and official 

capacity; GINGER HUGHES, in her personal and official capacity; ACE 

AMERICAN INSURANCE COMPANY, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

We decide whether the district court erred when it granted summary 

judgment against Appellant Lori Rayborn on her claims of (1) retaliation under 

Louisiana state law and the First Amendment, (2) deprivation of her liberty

and reputational interests under the Fourteenth Amendment, and (3) 

intentional infliction of emotional distress. We AFFIRM. 

FACTS AND PROCEEDINGS

Rayborn worked as a nurse at Parkway High School (“Parkway”) within 

the Bossier Parish School System (“BPSS”). Her children attended Parkway, 

United States Court of Appeals

Fifth Circuit

FILED

February 2, 2018

Lyle W. Cayce

Clerk

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and for many years she achieved the highest possible performance reviews for 

her service. In 2011, a diabetic student, HDC, committed suicide because of 

her classmates’ bullying. As the school nurse, Rayborn had worked closely with 

HDC to monitor her diabetes and provide her with medical care. Rayborn 

documented fluctuations in HDC’s glucose levels and increased frequency of 

hypo/hyperglycemia in the months before the suicide. 

Rayborn testified that she recommended to BPSS’s 504 coordinator1 that 

HDC receive special accommodations, but her suggestion was apparently 

ignored. Sometime before the suicide, HDC informed Rayborn that she was 

uncomfortable receiving a profile in the school’s yearbook as a student with a 

disability. Rayborn passed HDC’s concern along to the administration, and 

HDC was not required to participate in the yearbook’s plan. HDC later 

informed Rayborn that her substitute teacher had forbidden her to monitor her 

glucose levels in class. Rayborn brought this to the teacher’s attention and 

explained that HDC had a health plan with which the school was legally 

obligated to comply. HDC’s teachers received emails from Rayborn, reminding 

them of HDC’s health plan and instructing them to print a hard copy of the 

plan for substitute teachers. About a week before HDC’s death, Rayborn 

treated HDC for high glucose levels. Rayborn took notes of all of her 

interactions with HDC. 

After her suicide, HDC’s parents sued the Bossier Parish School Board 

(“BPSB”). Rayborn’s notes were subpoenaed as part of that action. Bourgeois 

and Ginger Hughes, Rayborn’s supervisor, each met individually with Rayborn

to discuss the notes’ contents before responding to the subpoena. Rayborn 

 

1 Section 504 is a part of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 701, 

that is intended, in part, to assist disabled students. BPSS has a coordinator who ensures

compliance with section 504 requirements, sometimes by creating health plans for students.

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explained that the school’s failure to put HDC on a 504 plan raised concerns.2

Rayborn expressed other concerns and safety issues, pointing to a number of

“red flags” with the school’s handling of HDC’s health needs. 

By the end of these meetings, Hughes and Bourgeois’s demeanors had 

changed. They appeared “alarmed” and “distant and distracted.” Hughes said 

Rayborn’s concerns reflected poorly on the school system. Rayborn claims that 

these administrators treated her differently after the meetings. Bourgeois gave 

Rayborn “cold stares,” avoided conversing with her, and was less talkative 

around her. Rayborn overheard Bourgeois mocking her by reading aloud in an 

effected tone a work-related email that Rayborn had circulated to the staff. 

Rayborn also had problems with a medically-trained secretary, Michelle 

Barger. Hughes issued a verbal reprimand to Rayborn for one particularly bad 

confrontation with Barger that occurred in front of students and parents, and 

Hughes informed Rayborn that she had discussed an involuntary transfer with 

Bourgeois. According to Rayborn, Hughes specified that the reprimand was 

issued in part because she did not give the administration “wiggle room.” 

Hughes further stated that Rayborn’s practice of voicing her concerns was 

becoming a problem and that she needed to be a “professional.” 

Near the end of a school administration meeting addressing medication 

management and documentation and other health-related issues, a question 

was posed regarding whom to contact in the event of a medical emergency. 

Bourgeois announced that whether a nurse was present or not, any response 

to a medical emergency should be referred to 911. Later, a student passed out 

in the cafeteria. Nobody informed Rayborn, who was in her office, until after 

911 had been called and other medical professionals had arrived on the scene. 

 

2 Bourgeois responded that HDC did not need a 504 plan because “she was stable with 

good grades.” Bourgeois also questioned, “what does a nurse have to do with 504.” 

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Upset, Rayborn went to Bourgeois’s office and protested her exclusion from the 

medical emergency, arguing that her absence jeopardized children’s safety and 

lives. Bourgeois said, “[w]e didn’t need you” and reminded her of the meeting 

in which she had decided 911 would be called whether the nurse was on 

campus or not. Rayborn exited Bourgeois’s office repeating, “unbelievable.” Id.

After that incident, Hughes reprimanded Rayborn again and issued her 

a mandatory transfer to another school within the BPSS. Hughes informed 

Rayborn that she agreed with Rayborn about student safety, but she could not 

condone “insubordinate” conduct. Rayborn’s transfer was effective 

immediately and she was not allowed to return to Parkway without an escort. 

Rayborn found the transfer unsatisfactory. She was no longer at 

Parkway with her children and she had a list of concerns regarding the 

facilities at her new school. Rayborn’s pay and benefits, however, remained 

unchanged. 

Rayborn filed two grievances, but BPSB took no formal action. Rayborn 

claims Hughes subsequently issued a false evaluation of Rayborn, accusing her 

of excessive absences and failure to complete a proposed wellness program. 

Within a few months of the transfer, Rayborn resigned and found work 

elsewhere because she “was afraid to go back. They had forced [her] out of [her] 

job.” 

Rayborn sued BPSB, and its insurance provider, Ace American 

Insurance Company, as well as Bourgeois and Hughes in their official and 

individual capacities (collectively, “Defendants”). She claimed Defendants 

were liable under 42 U.S.C. § 1983 for retaliating against her for expressing 

her views about the administration’s inadequacies in handling various medical 

emergencies—including the suicide of HDC—in violation of the First 

Amendment. She also claimed Defendants impugned her liberty and 

reputational interests in violation of the Fourteenth Amendment. Finally, she 

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claimed BPSB violated the Louisiana whistleblower law and Defendants’ 

actions amounted to intentional infliction of emotional distress. 

 The district court granted summary judgment in favor of Defendants 

on all of Rayborn’s claims. She timely appealed. 

STANDARD OF REVIEW

We review “a grant of summary judgment de novo, applying the same 

standard as the district court.” Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 

246 (5th Cir. 2003). Summary judgment is appropriate “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). “In deciding 

whether a fact issue exists, courts must view the facts and draw reasonable 

inferences in the light most favorable to the nonmoving party.” Wilson v. 

Tregre, 787 F.3d 322, 325 (5th Cir. 2015). We “may affirm the district court’s 

summary judgment on any ground raised below and supported by the record.” 

Id. (quoting Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 

2014)).

DISCUSSION

I. Louisiana Revised Statute § 23:967

Rayborn first challenges the district court’s dismissal of her state-law3

whistleblower claim under Louisiana Revised Statute § 23:967.4 Rayborn 

 

3 The district court exercised its discretion to maintain supplemental jurisdiction 

pursuant to 28 U.S.C. § 1367 over her state-law claim. See Del-Ray Battery Co. v. Douglas 

Battery Co., 635 F.3d 725, 731 (5th Cir. 2011).

4 The statute states: 

An employer shall not take reprisal against an employee who in good faith, and 

after advising the employer of the violation of law: (1) Discloses or threatens to 

disclose a workplace act or practice that is in violation of state law. (2) Provides 

information to or testifies before any public body conducting an investigation, 

hearing, or inquiry into any violation of law. (3) Objects to or refuses to 

participate in an employment act or practice that is in violation of law.

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contends that the district court erred when it used federal jurisprudence 

associated with Title VII to analyze her claim under the Louisiana 

whistleblower statute. As Rayborn points out, this court has noted that 

“§ 23:967 seems to offer broader protections” than Title VII. Schroeder v. 

Greater New Orleans Fed. Credit Union, 664 F.3d 1016, 1026 (5th Cir. 2011).

Nonetheless, our precedent, and that of the Louisiana state courts, has 

consistently cited to Title VII standards in interpreting § 23:967. See Strong v. 

Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 805 n.1 (5th Cir. 2007) (“the 

standards governing both claims [under Title VII and § 23:967] are materially 

indistinguishable”); Smith v. AT&T Sols., 90 F. App’x 718, 723 (5th Cir. 2004)

(“[w]hile the Louisiana Supreme Court has not spoken directly on whether 

[Title VII’s] framework applies to section 23:967 cases, Louisiana courts have 

often looked to federal anti-discrimination jurisprudence in interpreting 

Louisiana’s anti-discrimination statutes”); Imbornone v. Treasure Chest 

Casino, No. 04-2150, 2006 WL 1235979, at *3 (E.D. La. May 3, 2006); Tatum 

v. United Parcel Serv., Inc., 79 So. 3d 1094, 1103–04 (La. Ct. App. 2011).

Rayborn provided no Louisiana cases interpreting § 23:967 otherwise. 

Accordingly, we apply the standards and requirements of Title VII when 

analyzing her retaliation claims under § 23:967.

Applying federal Title VII standards, Rayborn’s claim under § 23:967 

fails. An employee “establishes a prima facie case for unlawful retaliation by 

proving (1) that she engaged in activity protected by Title VII, (2) that an 

 

La. Stat. Ann. § 23:967(A)(1)–(3) (emphasis added). The statute defines “reprisal” as 

firing, layoff, loss of benefits, or any discriminatory action the court finds was 

taken as a result of an action by the employee . . . ; however, nothing in this 

Section shall prohibit an employer from enforcing an established employment 

policy, procedure, or practice or exempt an employee from compliance with 

such.

Id. (C)(1) (emphasis added).

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adverse employment action occurred, and (3) that a causal link existed between 

the protected activity and the adverse employment action.” Long v. Eastfield 

Coll., 88 F.3d 300, 304 (5th Cir. 1996) (citing McMillan v. Rust Coll., Inc., 710 

F.2d 1112, 1116 (5th Cir. 1983)). For the purposes of § 23:967, an adverse 

employment action “is defined as ‘a significant change in employment status, 

such as hiring, firing, failing to promote, reassignment with significantly 

different responsibilities, or a decision causing a significant change in 

benefits.’” Tatum, 79 So. 3d at 1104 (quoting Burlington Indus., Inc. v. Ellerth, 

524 U.S. 742, 761 (1998)).5

Rayborn’s claim fails because she cannot show an adverse employment 

action. Rayborn claims that she was transferred and reprimanded because of 

her protected activity, and she further argues that she effectively received a 

constructive discharge. 

This court has said that “a transfer or reassignment can be the 

equivalent of a demotion [which is a significant change in employment status], 

and thus constitute an adverse employment action.” Thompson v. City of Waco, 

764 F.3d 500, 503 (5th Cir. 2014) (citing Alvarado v. Tex. Rangers, 492 F.3d 

605, 612–15 (5th Cir. 2007)). “To be the equivalent to a demotion, a transfer 

need not result in a decrease in pay, title, or grade; it can be a demotion if the 

new position proves objectively worse—such as being less prestigious or less 

 

5 In 2006, the Supreme Court issued Burlington North Santa Fe Railway Co. v. White, 

in which the Court rejected limiting Title VII retaliation claims to “ultimate employment 

actions,” such as “hiring, firing, failing to promote, reassignment with significantly different 

responsibilities, or a decision causing a significant change in benefits.” 548 U.S. 53, 64-67. 

Instead, the Court found that Title VII retaliation “is not limited to discriminatory actions 

that affect the terms and conditions of employment.” Id. at 64. Despite being five years after 

Burlington, the Tatum court cited a pre-Burlington standard in addressing retaliation under 

§ 23:967. See 79 So. 3d 1094, 1104. It is unclear if the Tatum court did so intentionally. 

Nonetheless, we have found no Louisiana state case applying the Burlington standard to a 

§ 23:967 claim and therefore we follow the Tatum court’s lead in applying a pre-Burlington 

standard. 

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interesting or providing less room for advancement.” Id. (quoting Alvarado, 

492 F.3d at 613 (alterations omitted)). Rayborn’s transfer to another school 

within the BPSS is not an adverse employment action. She did not lose any 

pay or benefits. There is no evidence that she suffered a loss of responsibilities. 

Although her office facilities at the new school were subjectively less desirable,

and she no longer worked at the school her children attended, these differences 

do not amount to a demotion. Thus, she did not suffer a significant change in 

employment status.

Moreover, the evidence does not support Rayborn’s allegation that BPSB

constructively discharged her. To show constructive discharge in Louisiana, a 

plaintiff must show that “the employer intended to and deliberately created 

such intolerable working conditions that the employee was forced into 

involuntary resignation.” Plummer v. Marriott Corp., 654 So. 2d 843, 849 (La.

Ct. App. 1995), writ denied, 660 So. 2d 460 (La. 1995). The extent of the 

intolerable conditions must lead a reasonable person to feel “compelled to 

resign.” Id. “The intolerable conduct must be of a greater severity or 

pervasiveness than the minimum required to prove a hostile working 

environment[.]” Id. Cold stares, rude conduct, and a transfer to a subjectively 

less desirable location simply do not meet this high standard, even when 

viewing Rayborn’s allegations in the most favorable light. 

Finally, Rayborn’s reprimands do not amount to a “significant change in 

employment status.” Tatum, 79 So. 3d at 1104 (quoting Ellerth, 524 U.S. at 

761). Accordingly, Rayborn has failed to show she was subjected to an adverse 

employment action and her claim under § 23:967 fails. 

II. First Amendment Retaliation

 Rayborn brought claims under 42 U.S.C. § 1983 against BPSB, Hughes,

and Bourgeois in their official and individual capacities, alleging that they 

violated Rayborn’s rights to “protest, oppose, and report violations of child 

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welfare, neglect of children, and proper care” under the First Amendment. The 

district court granted summary judgment against Rayborn on these claims. We

address her arguments in two parts. 

A. Claims against BPSB, Hughes, and Bourgeois in their official capacities

“Municipal liability under 42 U.S.C. § 1983 requires proof of 1) a 

policymaker; 2) an official policy; 3) and a violation of constitutional rights 

whose ‘moving force’ is the policy or custom.” Rivera, 349 F.3d at 247 (citing 

Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). “[I]solated 

unconstitutional actions by municipal employees will almost never trigger 

liability.” Id. (internal quotation marks omitted). The district court granted 

summary judgment in BPSB’s favor because it determined Rayborn failed to 

identify any official school board policy or custom in accordance with which the 

allegedly unconstitutional conduct occurred. 

Before us, Rayborn has failed to identify any policy or custom upon which 

her transfer was predicated other than to say, “[t]here is no reason to accept” 

that the actions “were not part of an unwritten practice or custom” of BPSB. 

Rayborn contends “Hughes told [her] the punishment was a joint decision 

between [Hughes], Bourgeois, [the] Assistant Superintendent, and others.” But 

this does not show anything more than an isolated incident by municipal 

employees. The district court did not err in determining that there was no 

genuine issue of fact as to an underlying municipal policy. 

Further, suits against officials in their official capacities “generally 

represent only another way of pleading an action against an entity of which an 

officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting 

Monell, 436 U.S. at 690 n.55). Thus, Rayborn’s claims against Hughes and 

Bourgeois in their official capacities also fail. See id. at 166 (“[An officialcapacity suit] is not a suit against the official personally, for the real party in 

interest is the entity.”).

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B. Claims against Hughes and Bourgeois in their individual capacities

The district court determined that Hughes and Bourgeois were entitled 

to qualified immunity. “To overcome an official’s qualified immunity defense, 

a plaintiff must show that the evidence, viewed in the light most favorable to 

him, is sufficient to establish a genuine dispute (1) that the official violated a 

statutory or constitutional right, and (2) that the right was clearly established

at the time of the challenged conduct.” Cutler v. Stephen F. Austin State Univ., 

767 F.3d 462, 469 (5th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 

735 (2011) (internal quotation marks omitted)). The district court concluded 

that Rayborn could not meet her burden as to the first prong of the test. 

“[T]he First Amendment protects a public employee’s right, in certain 

circumstances, to speak as a citizen addressing matters of public concern.” 

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). To determine whether a public 

employee’s speech is entitled to protection, courts undertake a two-step 

inquiry. The first step “requires determining whether the employee spoke as a 

citizen on a matter of public concern.” Id. at 418. “If the answer is no, the 

employee has no First Amendment cause of action based on his or her 

employer’s reaction to the speech.” Id. If the answer is yes, then a court must 

ask whether the “government entity had an adequate justification for treating 

the employee differently from any other member of the general public.” Id. The 

Supreme Court explained, however, that “[a] government entity has broader 

discretion to restrict speech when it acts in its role as employer, but the 

restrictions it imposes must be directed at speech that has some potential to 

affect the entity’s operations.” Id.

Rayborn contends that the notes of her encounters with HDC, in which 

she detailed the “red flags” that turned Bourgeois and Hughes against her, 

were subpoenaed in connection with HDC’s parents’ lawsuit against BPSB and 

that under Supreme Court precedent those notes should receive First 

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Amendment protection. In Lane v. Franks, the Supreme Court considered 

testimony given by an individual pursuant to a subpoena and concluded: 

“Truthful testimony under oath by a public employee outside the scope of his 

ordinary job duties is speech as a citizen for First Amendment purposes. That 

is so even when the testimony relates to his public employment or concerns 

information learned during that employment.” 134 S. Ct. 2369, 2378 (2014) 

(emphasis added). It was undisputed in Lane that “Lane’s ordinary job 

responsibilities did not include testifying in court proceedings.” Id. n.4. In 

Garcetti v. Ceballos, however, the Supreme Court held that “when public 

employees make statements pursuant to their official duties, the employees are 

not speaking as citizens for First Amendment purposes, and the Constitution 

does not insulate their communications from employer discipline.” 547 U.S. at 

421 (emphasis added). 

Rayborn alleges the following speech is constitutionally protected: notes 

she made regarding HDC, including her personal observations and 

documentation of HDC’s health and status; the submission and explanation of 

the notes to her superiors; her conversation with Bourgeois in which she stated 

that there were “red flags” regarding HDC; her explanation of the red flags;

her recounting that she had previously warned the assistant principal about 

her concerns for the student’s health; and her insistence that HDC should be 

on a section 504 plan. Rayborn argues the district court erred when concluding 

that her job description and duties as a school nurse required this speech. 

The district court correctly concluded that all of Rayborn’s actions that 

she claims are protected by the First Amendment, including offering her notes 

in accordance with the subpoena requests, were made according to her official 

duties. The test is not whether she was required to engage in the speech, but 

rather whether she made the speech “pursuant to [her] ‘official 

responsibilities’” and whether that speech is “ordinarily within the scope of 

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[her] duties.” Lane, 134 S. Ct. at 2379 (quoting Garcetti, 547 U.S. at 424). The 

district court observed that Rayborn’s job responsibilities were “maintaining 

complete records on all school nurse activities” and these include “assessment 

and evaluation of individual student health and behavior patterns; conferences 

with teachers and parents; and routine follow-up on reported health concerns 

of students.” Rayborn stresses the Supreme Court’s caution about overreliance on written job descriptions, Garcetti, 547 U.S. at 424–25, but she fails 

to create any genuine issue of material fact as to whether this speech was made 

pursuant to her official duties as school nurse. 

Rayborn has not shown that Hughes and Bourgeois violated her first 

amendment right as an employee “to speak as a citizen addressing matters of 

public concern.” Id. at 417. Thus, Hughes and Bourgeois’s qualified immunity 

defense prevails, and Rayborn’s § 1983 claim against them fails. 

III. Fourteenth Amendment Liberty and Reputational Interests

Rayborn claims that Defendants violated her Fourteenth Amendment 

rights to her good name, reputation, and integrity. She argues she was 

subjected to a hostile working environment in which Bourgeois openly mocked 

her and staff disrespected her. She was reprimanded twice, and, when she was 

involuntarily removed from Parkway, she was “paraded and escorted out as if 

she were a common criminal.” She could not return to the school her children 

attended without an escort. She was denied any opportunity to rebut the 

allegations made against her in either of the reprimands she received because 

BPSB refused to hold a hearing. As a result, she lost the support of her friends, 

her church community, and the respect of former colleagues, and she has put 

her house on the market. 

“It is now beyond any doubt that discharge from public employment 

under circumstances that put the employee’s reputation, honor or integrity at 

stake gives rise to a liberty interest under the Fourteenth Amendment to a 

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procedural opportunity to clear one’s name.” Rosenstein v. City of Dall., 876 

F.2d 392, 395 (5th Cir. 1989) (collecting cases). The district court correctly 

noted, however, that “reputation alone [is not] a constitutionally protected 

interest.” Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 256 (5th Cir. 1984). 

“This court employs a seven-element ‘stigma-plus-infringement’ test to 

determine whether § 1983 affords a government employee a remedy for 

deprivation of liberty without notice or an opportunity to clear his name.” 

Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006). To succeed on 

a procedural due process claim under the Fourteenth Amendment, a plaintiff 

must show the following:

(1) he was discharged; (2) stigmatizing charges were made against 

him in connection with the discharge; (3) the charges were false; 

(4) he was not provided notice or an opportunity to be heard prior 

to the discharge; (5) the charges were made public; (6) he requested 

a hearing to clear his name; and (7) the employer denied the 

request.

Id. As discussed above, BPSB never discharged Rayborn. Thus, she 

cannot meet the first element of the test, and her claim fails.

IV. Intentional Infliction of Emotional Distress

Finally, Rayborn appeals the district court’s grant of summary judgment 

in favor of Defendants on her claim of intentional infliction of emotional 

distress. Rayborn argues she was shunned, subjected to two “unfounded” 

reprimands, involuntarily transferred away from the school her children 

attended, barred from her children’s school, and threatened because “she did 

the right thing” when she tendered her notes and statements regarding HDC’s 

suicide. As noted by the district court, Rayborn claims to have suffered 

fibromyalgia, stress, anxiety, and paranoia, and she has lost interest in 

activities she previously found enjoyable as a result of these actions. 

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To recover on a claim of intentional infliction of emotional distress in

Louisiana, “a plaintiff must establish (1) that the conduct of the defendant was 

extreme and outrageous; (2) that the emotional distress suffered by the 

plaintiff was severe; and (3) that the defendant desired to inflict severe 

emotional distress or knew that severe emotional distress would be certain or 

substantially certain to result from his conduct.” White v. Monsanto Co., 585 

So. 2d 1205, 1209 (La. 1991). As the district court correctly noted, “[t]he 

distress suffered by the employee must be more than a reasonable person could 

be expected to endure.” Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1027 (La. 

2000). Indeed, the Supreme Court of Louisiana has indicated that liability only 

rests where “the conduct has been so outrageous in character, and so extreme 

in degree, as to go beyond all possible bounds of decency, and to be regarded as 

atrocious, and utterly intolerable in a civilized community.” Id. at 1022

(quoting Restatement (Second) of Torts § 46). We agree with the district court 

that Rayborn failed to show any of the Defendants’ conduct was extreme and 

outrageous or more than a reasonable person could be expected to endure.

CONCLUSION

For the aforementioned reasons, we AFFIRM the district court on all 

issues.

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JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part:

Though I concur in the majority opinion as to most of Rayborn’s claims, 

I write separately to explain my disagreement with the majority’s resolution of 

Rayborn’s claim under the Louisiana Whistleblower Statute. As the majority 

identifies, a transfer that is the equivalent of a demotion constitutes an adverse 

employment action for the purposes of this statute. See, e.g., Sharp v. City of 

Hous., 164 F.3d 923, 932 (5th Cir. 1999) (discussing plaintiff’s federal 

retaliation claim under 42 U.S.C. § 1983); see also Haire v. Bd. of Supervisors 

of La. State Univ., 719 F.3d 356, 367 (5th Cir. 2013) (noting that analysis of 

reprisal under Louisiana Whistleblower statute mirrors that of retaliation 

claims under federal law); Tatum v. United Parcel Serv., Inc., 79 So. 3d 1094, 

1104 (La. 2012) (applying Title VII precedent to define what constitutes a 

reprisal under Louisiana Whistleblower Statute). The majority also correctly 

notes that “[t]o be equivalent to a demotion, a transfer need not result in a 

decrease in pay, title, or grade; it can be a demotion if the new position proves 

objectively worse—such as being less prestigious or less interesting or 

providing less room for advancement.” Sharp, 164 F.3d at 933 (citations 

omitted). 

Though the majority therefore recites the correct standard for when a 

transfer constitutes an adverse employment action, it errs by failing to 

consider whether any reasonable jury could find that Rayborn’s transfer 

amounted to a demotion, instead inappropriately drawing its own conclusions 

from the disputed facts. Whether a transfer amounts to a demotion is a 

question of fact to be resolved by a jury—not by a judge on summary judgment. 

Id. It is well established that this court, when reviewing a district court’s grant 

of summary judgment, does not weigh evidence or decide issues of disputed 

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fact. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). Instead, we draw all 

reasonable inferences in favor of the non-movant and determine only whether 

any reasonable jury presented with that evidence could find in her favor. Id. 

It is clear from the record that Rayborn has created a genuine dispute of 

fact on this issue. Rayborn provided summary judgment evidence that she was 

reassigned as a disciplinary measure to nursing facilities that were unclean, 

devoid of safe disposal for used needles, and that lacked the space, equipment, 

and privacy to provide adequate medical care to her students. Though she did 

not suffer a decrease in pay, she contends that these conditions prevented her 

from fully exercising her nursing skills or generally succeeding in her position. 

Rayborn’s evidence that her new position was objectively worse than her prior 

position is just as strong as that in other cases in which we found that transfers

without reductions in salary were adverse employment actions. See Sharp, 

164 F.3d at 926, 928, 933 (jury could conclude that Plaintiff’s transfer was a 

demotion in light of evidence that her initial assignment to the horse-mounted 

law enforcement unit was more “elite” than her subsequent assignment to a 

“less prestigious” teaching post at the Police Academy); Click v. Copeland, 970 

F.2d 106, 110 (5th Cir. 1992) (jury could find that intradepartmental transfer 

without a reduction in salary was a retaliatory demotion based on evidence 

that the new position was “not as interesting or prestigious” and “few people 

transferred voluntarily” to the new position); c.f. Mitchell v. Univ. of La. Syst., 

154 F. Supp. 3d 364, 378–80, 404–05 (M.D. La. 2015) (reasonable jury could 

find that transfer to a different programmer analyst position within the 

university was a demotion based on Plaintiff’s evidence that her new work 

environment was dysfunctional and she was required to perform more 

secretarial rather than “higher level” tasks, even though she kept the same 

pay and Defendant called it a “lateral move”). A reasonable jury, presented 

with Rayborn’s evidence that she was transferred as punishment to a new 

 Case: 16-30903 Document: 00514333412 Page: 16 Date Filed: 02/02/2018
No. 16-30903

17

position that was objectively worse due to specific, concrete deficiencies that 

interfered with her work could conclude that Rayborn suffered an adverse 

employment action. 

Accordingly, I would hold that summary judgment on this issue was 

improper and would vacate the district court’s dismissal of Rayborn’s claim 

under the Louisiana Whistleblower Statute and remand for further 

proceedings. 

 Case: 16-30903 Document: 00514333412 Page: 17 Date Filed: 02/02/2018