Dorothy Jackson v. The Board of Supervisors For The Southern University And Agricultural And Mechanical College, John K. Pierre, and Ray L. Belton

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

CI 1 FIRST CIRCUIT

2023 CA 0732
Cw
DOROTHY JACKSON

VERSUS VERSUS

THETHE BOARDBOARD OFOF SUPERVISORSSUPERVISORS FORFOR THETHE SOUTHERNSOUTHERN UNIVERSITYUNIVERSITY
ANDAND AGRICULTURAL AGRICULTURAL ANDAND MECHANICALMECHANICAL COLLEGE,COLLEGE, JOHNJOHN K.K.
PIERRE,PIERRE, ANDAND RAYRAY L.L. BELTONBELTON

DATEDATE OFOF JUDGMENT.-JUDGMENT.-
MARMAR 00 55 20242024

ONON APPEALAPPEAL FROMFROM THETHE NINETEENTHNINETEENTH JUDICIALJUDICIAL DISTRICTDISTRICT COURTCOURT
PARISHPARISH OFOF EASTEAST BATONBATON ROUGE,ROUGE, STATESTATE OFOF LOUISIANA LOUISIANA
NUMBERNUMBER 672690672690

HONORABLE HONORABLE KELLYKELLY E.E. BALFOUR,BALFOUR, JUDGEJUDGE

WilliamWilliam DavidDavid Aaron,Aaron, Jr.Jr. CounselCounsel forfor PlaintiffPlaintiff
- -AppellantAppellant
DeWayneDeWayne L.L. WilliamsWilliams DorothyDorothy JacksonJackson
AnnaAnna RainerRainer
NewNew Orleans,Orleans, LouisianaLouisiana

DennisDennis J.J. PhayerPhayer CounselCounsel forfor Defendant Defendant
- - Appellee Appellee
ErikaErika M.M. CunninghamCunningham BoardBoard ofof Supervisors Supervisors forfor thethe
MindyMindy NunezNunez DuffourcDuffourc Southern Southern UniversityUniversity andand Agricultural.Agricultural.
JonathanJonathan H.H. AdamsAdams andand MechanicalMechanical CollegeCollege
Metairie,Metairie, LouisianaLouisiana

Kim.Kim. MariaMaria BoyleBoyle CounselCounsel forfor DefendantDefendant
- - AppelleeAppellee
RebeccaRebecca ShaSha JohnJohn K.K. PierrePierre
NewNew Orleans,Orleans, LouisianaLouisiana

ReneeRenee G.G. CulottaCulotta Counsel Counsel forfor Defendant Defendant
- - AppelleeAppellee
BenjaminBenjamin M.M. CastorianoCastoriano RayRay L.L. BeltonBelton
NewNew Orleans,Orleans, Louisiana Louisiana

BEFORE:BEFORE: CHUTZ,CHUTZ, RESTER,RESTER, ANDAND MILLER,MILLER, JJ.JJ.

Disposition:Disposition: REVERSEDREVERSED ININ PART;PART; AFFIRMED AFFIRMED ININ PART;PART; ANDAND REMANDED.REMANDED.

CHUTZ, I

Plaintiff-appellant, Dorothy Jackson, a former contractual tenured law

professor for Southern University and Agricultural and Mechanical College

Southern University) appeals the trial court' s judgment, sustaining peremptory

exceptions raising the objection of no cause of action asserted by defendants -

appellees, the Board of Supervisors for the Southern University ( the Board), John

Pierre, the Chancellor of the Southern University Law Center ( Law Center), and

Dr. Ray L. Belton, the President of Southern University, and dismissing Professor

Jackson' s claims related to her termination. We reverse in part, affirm in part, and

remand.

BACKGROUND

Because the facts and procedural history have been fully developed in our

earlier opinion, see Jackson v. Bd. of Supervisors for S. Univ. and Agric. and

Mech. Coll., 2021- 0241 ( La. App. 1st Cir. 3/ 11/ 22), 372 So. 3d 336, we set forth

only that which is necessary for our disposition in this appeal. In the prior appeal,

this court affirmed the trial court' s action of sustaining the exceptions of no cause

of action but remanded to allow Professor Jackson to amend her petition. Jackson,

372 So. 3d at 354.

On May 26, 2022, Professor Jackson filed a second amended petition,

claiming entitlement to relief for breach of contract against the Board. She also

averred that the Board, Chancellor Pierre, and Dr. Belton were liable for damages

as a result of abuse of rights, conspiracy, and fraud. The Board, Chancellor Pierre,

and Dr. Belton each filed exceptions again raising the objection of no cause of

action.

A hearing was held on November 28, 2022, at the conclusion of which the

trial court sustained the exceptions and dismissed all of Professor Jackson' s claims

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against all defendants. A request by Professor Jackson for another opportunity to

amend her petition was denied. A judgment in conformity with the trial court' s

ruling was signed on March 9, 2023. Professor Jackson appeals.

DISCUSSION

Breach of Contract

To cure the deficiencies in her petition, our earlier disposition cited Levitt v.

University of Texas at EI Paso, 759 F. 2d 1224, 1230 ( 5th Cir. 1985), and noted

that Professor Jackson had correctly observed that a university' s failure to comply

with its own rules may constitute a breach of contract. Although she argued that

her employment contract was subject to the terms of the university' s personnel

policy and the Board violated those policies in connection with her termination,

thereby breaching the contract with Professor Jackson relative to her tenured

employment, we concluded that Professor Jackson' s petitions did not contain such

allegations. Therefore, we remanded to allow an amendment. Jackson, 372 So. 3d

at 350.

Professor Jackson' s second amended petition states the following relevant

averments relative to her attempt to state a cause of action in breach of contract

against the Board.

10.

Professor Jackson formally entered into a faculty
contract/ agreement with the Board and/or the Law Center, under the
direction and control of the Board, on June 24, 2016 for a continuous
five-year period that would automatically renew every five years
without the need for action on her part, unless terminated earlier for
cause, by resignation, or by retirement....

12.

The Board had an agreement with all contractual/ tenured
employees, including Professor Jackson, that under the terms of their
employment any and all adverse employment actions would be
governed by policies and procedures developed by the Board.

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13.

4n February 17, 2017, ... the Board ... revised the Southern
University System Policy and Procedures to formulate a policy
relative to the delegation of authority to execute personnel actions
the SUS Personnel Policy)]....

17.

The Board further developed Faculty Personnel Policies and
Procedures ... which were also intended to ensure that all tenured
employees received equal and just due process with complete
impartiality in connection with adverse employment actions....

25.

The Board further developed Full Time Faculty and Adjunct
Faculty Handbook of Policies and Procedures for the [ Law Center]
which were also intended to ensure that all tenured and/ or
contractual employees received equal and just due process with
complete
impartiality in connection with adverse employment

actions....

58.

Chancellor] Pierre retaliatorily discharged Professor Jackson from
her teaching position/ duties in breach/ violation [ of] Professor
Jackson' s contract/ agreement with the Board via the aforementioned
policies and procedures, as well as other policies.

59.

In violation of Professor Jackson' s contract/ agreement with the
Board, via the aforementioned policies and other policies ... neither

Dr.] Belton nor the Board overturned [ Chancellor] Pierre' s
intentional retaliatory discharge of Professor Jackson from her
teaching duties....

84.

T] he Board ... breached its contract/agreement with

Professor Jackson as set forth herein ....

Accepting these allegations as true, as we must, see Jackson, 372 So. 3d at

347, we conclude that Professor Jackson has stated a cause of action against the

Board for breach of contract. Specifically, she has averred that she had an

agreement with the Board that under the terms of her employment any adverse

employment actions would be governed by policies and procedures developed by

M

the Board.' Her allegations also suggest that the SUS Personnel Policy, Faculty

Personnel Policies and Procedures, and Full Time Faculty and Adjunct Faculty

Handbook of Policies and Procedures for the Law Center are applicable to her

tenured employment contract with the Board. Professor Jackson additionally

claimed that the Board breached her employment agreement when it discharged

her without an application of the university' s policies and procedures.

In reaching our disposition, we note that we have neither a copy of the

employment contract nor all of Southern University' s personnel policies. And we

are mindful of the jurisprudence cited by the Board, which concluded that faculty

and other organizational disciplinary and grievance protocols do not constitute a

contract. Se_
e e, Stanton v. Tulane Univ. ofLouisiana, 2000- 0403 ( La. App. 4th

Cir. 1110101), 777 So.2d 1242, 1250, writ denied, 2001-0391 ( La. 4112/ 01), 789

So. 2d 597. See also Amer v. Roberts, 2015- 0599 ( La. App. lst Cir. 11/ 9/ 15), 184

So. 3d 1231 132- 33 ( where the employment contract does not refer to or otherwise

incorporate the relied -upon language of a policy manual as a qualification of the

parties' mutual right to terminate an agreement, the contract rather than the policy

manual is the law between the parties). To the extent Professor Jackson cannot

satisfy the legal requirements for incorporating personnel policies into her
employment contract, the peremptory exception of no cause of action is not the

proper procedural vehicle to dispose of the claim. Accordingly, we conclude that

the trial court erred in its dismissal of Professor Jackson' s claims for breach of

contract against the Board.

I Professor Jackson avers that the Board failed to provide its approval before she was terminated
as required under the SUS Personnel Policy. She alleges she was not to be suspended absent
consultation with a faculty grievance committee which was to determine whether adequate cause
for termination existed pursuant to the Faculty Personnel Policies and Procedures. Professor
Jackson also claims that pursuant to the Full Time Faculty and Adjunct Faculty Handbook of
Policies and Procedures for the Law Center, if the Law Center Chancellor disagreed with an
investigatory panel committee' s decision, he was without authority to override the committee' s
decision; and that appeals to the Board were available only for a termination recommendation by
the committee.

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Abuse ofRights, Fraud, and Conspiracy

Initially, we note that because Professor Jackson' s petition avers a breach of

contract claim against the Board for failing to apply its policies and procedures as

required under her contract, it is inappropriate to dismiss her claims for relief under

theories of abuse of rights, fraud, and conspiracy arising out of the alleged breach

of contract. See Everything on Wheels Subaru, Inc. v Subaru S., Inc., 616 So. 2d

1234, 1239 ( La. 1993). (" If there are two or more items of damages or theories of

recovery which arise out of the operative facts of a single transaction or

occurrence, a partial judgment on an exception of no cause of action should not be

rendered to dismiss one item of damages or theory of recovery.") Accordingly, we

limit our review to Professor Jackson' s claims against Chancellor Pierre and Dr.

Belton in their individual capacities.

In remanding to allow Professor Jackson to amend her claims against

Chancellor Pierre and Dr. Belton, citing Sartisky v. Louisiana Endowrnent,for the

Humanities, No. 14- 11255 2014 WL 5040817, at * 4 ( E.D. La. Sept. 26, 2014), this

court concluded that a cause of action for abuse of rights may exist in connection

with an employee' s termination in violation of moral rules, good faith, or

elementary fairness. Jackson, 372 So.3d at 352.

In her second amended petition, Professor Jackson stated the following:

82.

This [ abuse of rights] claim is authorized and instituted
pursuant to the provisions of Louisiana Civil Code Article 2315.
Citations omitted.]

83.

The Board and/ or [ Chancellor] Pierre and/ or [ Dr.] Belton
performed an investigation and knew that the allegations of undue
influence against Professor Jackson were fraudulent and untrue.

C+

V. I"

The Board and/ or [ Chancellor] Pierre and/ or [ Dr.] Belton
entered into a
conspiracy fraudulently cause the unlawful
to

termination and loss of Professor Jackson' s property interest in her
tenured professorship, and to demonize her in the public eye,
subjecting her knowingly [ to] false and misleading accusations, and
dangerous threat[ s.]
85.

The Board and/ or [ Chancellor] Pierre and/ or [ Dr.] Belton
created a sham investigatory ... committee hearing, a sham appeal,
and sham Board rules and procedures for the sole purpose of
fraudulently making Professor Jackson and outside parties believe she
was receiving due process and a fair appeal and avoiding a claim for
violation of Professor Jackson' s due process rights, and in furtherance
of the [ c] onspiracy.

86.

The contract/ agreement between Professor Jackson and the
Board created non -discretionary, compulsory actions, that had to be
taken by [ Chancellor] Pierre, [ Dr.] Belton, and/ or the Board in
connection with any termination of her contract/tenured employment.

87.

The actions of the Board, [ Chancellor] Pierre, and [ Dr.] Belton
were done with the intention to violate the compulsory actions that
had to be taken, and to fraudulently cause the unlawful termination
and loss of Professor Jackson' s property interest in her tenured
professorship, and to demonize her in the public eye, subjecting her
knowingly [ to] false and misleading accusations, and dangerous
threats, in furtherance of the [ c] onspiracy.

88.

The Board, [ Chancellor] Pierre, and [ Dr.] Beltonspecifically,
willfully, and with malice aforethought, retaliated against Professor
Jackson as a result of her refusal to participate in [ Chancellor]
Pierre[' s] and/ or the Board' s attempt to violate [ the] Louisiana Public
Records Law in connection with the media' s public record request as
to the investigation into Professor Jackson.

In our earlier opinion, we noted Professor Jackson had argued, but not pled,

that Chancellor Pierre and Dr. Belton knew or should have known the allegations

made against her were false, but they did not care, as their motivation in

terminating her was to put the blame on her and get the matter out of the media

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spotlight. See Jackson, 372 So.3d at 351. Her amended allegations include that

Chancellor Pierre and Dr. Belton performed an investigation and " knew that the

allegations of undue influence against Professor Jackson were fraudulent and

untrue." On appeal, she maintains that this was sufficient to state a cause of action

ofabuse of rights.

In her second amended petition, Professor Jackson set forth that Chancellor

Pierre advised the charges against her were: "( 1) She engaged in conduct seriously

prejudicial to the [ Law Center] and the Southern University System, ( 2) She

engaged in unethical and/ or immoral behavior; ( 3) She failed to perform duties in a

professional manner." Professor Jackson fails to elaborate any details as to the

manner by which Chancellor Pierre and Dr. Belton became aware such that they

knew" the allegations of undue influence were fraudulent and untrue. Importantly,

by her own pleading, she established that Chancellor Pierre' s and Dr. Belton' s

concerns were not simply about an alleged " undue influence" but more broadly

about the prejudicial, unethical/ immoral, and unprofessional conduct in which she

had engaged irrespective of allegations of undue influence.

Professor Jackson has averred that her contract/agreement with the Board

created non -discretionary, compulsory actions, that had to be taken ... in

connection with any termination of her contract/tenured employment" which, if

true, could support an evidentiary showing that her termination by the Board

violated moral rules, good faith, or elementary fairness so as to set forth an abuse

of rights claim. But while Professor Jackson has made allegations that she had a

contractual right to a particular process for termination from the Board, she has not

averred the existence of a similar contractual relationship with either Chancellor

Pierre or Dr. Belton in their respective individual capacities.

The abuse of rights doctrine applies to a defendant' s exercise of his

otherwise judicially protected rights." See Truschinger v. Pak, 513 So. 2d 1151,

1154 ( La. 1957). Our review of her petition establishes that Professor Jackson has

failed to set forth any allegations suggesting Chancellor Pierre and Dr. Belton

exercised their rights in an abusive manner and to Professor Jackson' s detriment.

The allegations levied against Chancellor Pierre and Dr. Belton relate to actions

undertaken within the parameters of their employment with the Southern

University System. See Mills a Tarver, 2021- 0666 ( La. App. 1st Cir. 12/ 30/ 21),

340 So. 3d 959, 970.

Insofar as her allegations of conspiracy, and consistent with this court' s

earlier opinion, Professor Jackson has acknowledged that an independent cause of

action for civil conspiracy does not exist in Louisiana, but that the actionable

element of La. C.C. art. 2324 is the intentional tort that the conspirators agreed to

commit and committed, in whole or in part, causing plaintiff' s injury. Jackson, 372

So.3d at 352 ( citing Hardy v. Easterling, 47,950 ( La. App. 2d Cir. 4/ 10/ 13), 113

So. 3d 1178, 1184). This court had already determined Professor Jackson' s petition

and amended petition failed to state a valid cause of action for a violation of

constitutional due process. Therefore, we concluded her allegations that the

defendants had taken certain actions " in furtherance of the [ c] onspiracy to violate

her] constitutionally protected due process rights" were insufficient to state a valid

cause of action for conspiracy. Jackson, 372 So.3d at 352.

In this post -remand appeal, Professor Jackson maintains the allegations of

her petition establish that the intentional tort Chancellor Pierre and Dr. Belton

conspired against her to commit was fraud. The allegations of her second amended

petition state the following:

9o.

This [ fraud] claim is authorized and instituted pursuant to the
provisions of Louisiana Civil Code Articles 1953, 2315, and 2324.

91.

The Board and/ or [ Chancellor] Pierre and/or [ Dr.] Belton
entered into a conspiracy fraudulently cause the unlawful
to

termination and loss of Professor Jackson' s property interest in her
tenured professorship, and to demonize her in the public eye,
subjecting her knowingly [ to] false and misleading accusations, and
dangerous threats.

92.

The Board and/ or [ Chancellor] Pierre and/ or [ Dr.] Belton
created a sham investigatory ... committee hearing, a sham appeal,
and sham Board rules and procedures for the sole purpose of
fraudulently making Professor Jackson and outside parties believe she
was receiving due process and a fair appeal and avoiding a claim for
Professor Jackson' s due process rights, and in furtherance of the
c] onspiracy.

In pleading fraud, the circumstances constituting fraud shall be alleged with

particularity. Malice, intent, knowledge, and other condition of mind of a person

may be alleged generally. La. C. C. P. art. 856. Professor Jackson has offered

nothing to establish with particularity the circumstances constituting the alleged

fraud and has simply reiterated the same underlying complaint of a failure to
receive constitutional due process.

A careful reading of Professor Jackson' s allegations for both abuse of rights

and conspiracy show they are inextricably bound to the claim of violations of her
constitutional due process rights. This court has already dismissed her claim of a

violation of state constitutional due process. Jackson, 372 So. 3d at 349. Because

the second amended petition lacks allegations to support an independent claim of

abuse of rights and she has failed to plead fraud with particularity so as to establish

an underlying intentional tort for her claim of conspiracy, the trial court correctly

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sustained the exceptions of no cause of action asserted by Chancellor Pierre and

Dr. Belton on these bases.'

Amendment ofPleading

When the grounds of the objection pleaded by the peremptory exception

may be removed by amendment of the petition, the judgment sustaining the

exception shall order such amendment within the delay allowed by the court. If the

grounds of the objection raised through the exception cannot be so removed, or if

the plaintiff fails to comply with the order to amend, the action, claim, demand,

issue, or theory shall be dismissed. La. C. C.P. art. 934.

Although Article 934 generally requires that a plaintiff be allowed to amend

her petition if the general grounds for the exception may be cured by an

amendment, it does not require that she be allowed an opportunity to speculate on

unwarranted facts merely for the purpose of defeating the exception. Robinson v.

Allstate Ins. Co., 53, 940 ( La. App. 2d Cir. 5126121), 322 So. 3d 381, 388, writ

denied, 2021- 00906 ( La. 10/ 19/ 21), 326 So. 3d 264. Accord Rombaeh v. State ex

rel. Diu ofAdmin., 2015- 0619 ( La. App. 1 st Cir. 12123115), 2015 WL 9464500, at

7. The trial court' s decision to allow an amendment of a pleading to cure the

grounds for a peremptory exception is within the discretion of the trial court.

Robinson, 322 So. 3d at 388.

Professor Jackson filed an original petition, a petition in federal court which

was dismissed, an amended petition, and pursuant to our remand instructions a

second amended petition. The amendments to her petition have fulfilled the

requirements of Article 934. Accordingly, we cannot say the trial court abused its

2 Because Professor Jackson has failed to plead abuse of rights or conspiracy causes of action
against Chancellor Pierre and Dr. Belton, i.e., acts or omissions not reasonably related to the
legitimate governmental objective for which the policymaking or discretionary power exists or
which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or
flagrant misconduct, we find it unnecessary to ascertain whether these defendants are entitled to
discretionary immunity under La. R.S. 9:2798. 1 and pretermit such a discussion.

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discretion in declining to allow Professor Jackson another opportunity to speculate

on unwarranted facts in an attempt to support claims of abuse of rights and

conspiracy based on fraud or any other intentional tort against Chancellor Pierre

and Dr. Belton.

DECREE

For these reasons, that portion of the trial court' s judgment, which sustained

the peremptory exception of no cause of action and dismissed Professor Jackson' s

claims against the Board, is reversed. Those portions of the trial court' s judgment,

which sustained the exceptions of no cause of action and dismissed Professor

Jackson' s claims against Chancellor John Pierre and Dr. Ray L. Belton in their

individual capacities, without granting her leave to amend, is affirmed. Appeal

costs in the amount of $2, 930.00 are assessed one-half to Dorothy Jackson and

one- half to the Board of Supervisors for the Southern University. The matter is

remanded.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

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