ORDER WITH REASONS
JUDGE JAMES J. BRADY, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA
Earlier in this litigation, the Court issued a Ruling denying summary judgment on Plaintiffs' Family Medical Leave Act (FMLA) retaliation claims against A.G. Monaco, Jennifer Normand, and Mimi Ruebsamen, in their individual capacities (the Human Resource Management (HRM) Defendants), and denying summary judgment on Plaintiffs' spoliation claim.1 Subsequently, the Court issued a Briefing Notice ordering the parties to address three specific issues pertaining to Plaintiffs' FMLA retaliation claims2 and spoliation claims.3 The parties, having been given the opportunity to file their respective Supplemental Briefs,4 the Court has reconsidered, sua sponte, its prior Ruling as to these specific claims.5 After careful consideration, the Court shall dismiss the Plaintiffs' FMLA retaliation claims against the HRM Defendants in their individual capacities, and the Plaintiffs' spoliation claim.
I. STANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."6 "An issue is material if its resolution could affect the outcome of the action."7 "When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence."8 "A party moving for summary judgment `must "demonstrate the absence of a genuine issue of material fact," but need not negate the elements of the nonmovant's case.'"9 If the moving party satisfies its burden, "the non-moving party must show that summary judgment is inappropriate by setting `forth specific facts showing the existence of a genuine issue concerning every essential component of its case.'"10 However, the non-moving party's "burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence."11
Notably, "[a] genuine issue of material fact exists, `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"12 The Court must resolve all reasonable factual inferences in favor of the nonmoving party.13 However, "[t]he court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim."14 "Conclusory allegations unsupported by specific facts, however, will not prevent an award of summary judgment; the plaintiff [can-] not rest on his allegations ... to get to a jury without `any significant probative evidence tending to support the complaint.'"15
II. FMLA Retaliation Claims Against HRM Defendants
The Court agrees with the Defendants regarding the Plaintiffs' attempt to broaden the scope of their pleadings through argument in dispositive motions.16 Plaintiffs argued in their memorandum in opposition to Defendants' summary judgment motion that "the LSU HR defendants refused to pay [Herster] for most of the semester following her return to work."17 However, after reviewing the Plaintiffs' Original and Amended Complaints, the Court finds that neither this allegation nor any other allegation was made that would have put the HRM Defendants on notice that any FMLA retaliation claim was being asserted against them.18 The allegations related to Herster's FMLA retaliation claim are limited to the following:
In August 2011, Herster was diagnosed with major depression and panic disorder as a consequence of Parker's actions. Consistent with University policy, Herster provided LSU with her' doctor's certification and requested intermittent leave pursuant to the Family Medical Leave Act ("FMLA"). On September 1, 2011, Herster was informed that her request for such leave had been approved. Consistent with her doctor's orders, Herster immediately began treatment that included counseling and pharmaceutical treatment.19
* * * *
In this iteration [Arp's memorandum], ARP asserted that Petitioner Herster's [sic] had `withdrawn from specific photography course instruction at the last minute.' The only plausible reference to Petitioner Herster's exercise of leave protected by the FMLA in August 2011, which was certified and approved by the University.20
Neither of these allegations assert any individualized claims against the HRM Defendants, and to allow the Plaintiffs to expand the scope of their FMLA retaliation claim beyond the allegations contained within the Original and Amended Complaints would run afoul of notice pleading requirements.21 Accordingly, the Court finds that Plaintiffs' FMLA retaliation claims against the HRM Defendants in their individual capacities shall be dismissed.
Moreover, even if the Court were to allow the Plaintiffs to expand the scope of their pleadings to assert a FMLA retaliation claim against the HRM Defendants, the Court agrees with the Defendants that the record evidence fails to support such a claim, and adopts their arguments herein.22
Accordingly, the Plaintiffs' FMLA retaliation claims asserted against A.G. Monaco, Jennifer Normand, and Mimi Ruebsamen, in their individual capacities, shall be dismissed with prejudice.
III. Plaintiffs' Spoliation Claim23
In an earlier Ruling in this case, the Magistrate Judge concluded that the imposition of a Rule 37 sanction of an adverse inference based upon Plaintiffs' spoliation claims against the Defendants for failing to preserve Tenured Faculty Professor Kimberly Arp's24 notes taken during the faculty meetings concerning Herster's renewal was unwarranted.25 The Magistrate concluded that the evidence submitted by the parties failed to establish (1) a duty to preserve the notes, and (2) that they were purposefully withheld and destroyed in order to hide information that would be harmful to the Defendants.26 Subsequently, this Court concluded that a genuine dispute of material fact existed as to whether the Defendants had an obligation to preserve Arp's notes.27 Due to the apparent inconsistencies between the two Rulings, the Court ordered the parties to brief whether "LSU had a duty to preserve Kimberly Arp's notes for purposes of Plaintiffs' spoliation claim in view of the rationale of [the Magistrate Judge's] ruling."28
"[S]poliation of evidence refers to the intentional destruction of the evidence for the purpose of depriving the opposing party of its use at trial."29 Louisiana law provides two remedies for spoliation: exclusion of the spoiled evidence or allowing an adverse inference.30 Before either remedy may be imposed, however, "[t]he party having control over the evidence must have had an obligation to preserve it at the time it was destroyed."31 Such a duty "arises when the party has notice that the evidence is relevant to the litigation."32 If the court finds that a party had an obligation to preserve the evidence, then the court must determine whether the party intentionally destroyed the evidence and their likely contents.33 Because Louisiana law does not recognize a claim for negligent spoliation,34 "an essential element of a spoliation claim is the intent of the party alleged to be a spoliator, which ... must be greater than the general negligence standard."35
In their brief, the Plaintiffs argue that "three distinct statutorily-created maxims" gave rise to a duty to preserve" Arps' notes: the federal regulations promulgating Title VII (29 C.F.R. Section 1602.14), LSU's General Retention Schedule, and Louisiana's Public Records Act.36 The Court disagrees.
The EEOC preservation notice, 29 C.F.R. Section 1602.14, states that "the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or action." LSU has defined "personnel records" in Policy Statement 40 as follows:
[a]ny record maintained in any administrative office of the University in connection with the recruitment and employment of any person whether the record is stored in printed or written form, micrographically, electronically or otherwise. Such records include but are not necessarily limited to letters of application, personal resumes, letters of recommendation, academic records, materials furnished by a placement service, appointment forms, records of promotion or other changes in status subsequent to appointment, salary raises, leave accrual, uses and balances any other personnel action processed through the Office of Human Resource management, performance evaluations, and correspondence in the employee's personnel folder between the individual employee and any administrative office of the University.37
Here, Arp attested to the fact that he only took notes during the faculty meetings so he could "make notations of the discussion that is going on so that [he could] use that as a form or format to write [his] summary letter."38 In this case, the Court finds that Arp's notes taken for his own personal use, are not "personnel records" as defined by LSU Policy Statement 40. Nor are such notes to be included in the faculty report that must be prepared pursuant to LSU Policy, PS-36-NT following the faculty panel's discussion and vote. In particular, the report must include the following: (1) a tally of the vote; (2) the number of panel members who did not vote; (3) the chair's independent judgment and recommendation with regard to the decision; (4) analysis and explanations, as needed, with regard to letters from outside experts, in cases when those are included; and (5) an account of the important factors underlying the panel's recommendation, including minority views, and written statements by those supporting a minority view point when they so choose.39 Again, however, notes, such as those taken by Arp in this case, are not required to be included in the faculty report.40 Accordingly, the Court finds that Arp's notes were not personnel records subject to the EEOC's preservation notice.
Similarly, LSU's public retention policy applies to "university records", which are defined as follows:
All of the records of the University, its offices, departments, and bureaus, or collected or preserved by such offices, departments, and bureaus for information or legal value, are University Records. The personal papers of faculty, officers, and staff of the University, documenting their personal research and professional activities, are not included in University Records.41
Based upon the foregoing definition, the simple fact that Arp was an employee of LSU is not enough to show that his notes taken during the faculty panel discussions qualified as "university records." Rather, the focus of the analysis is on the documents, or in this case the notes, themselves.
As previously discussed, Arp was not required to take notes during the faculty panel discussions. Arp's notes were taken for his own personal use while participating in a professional activity — a faculty panel discussion — to assist him in preparing the faculty report; therefore, Arp's notes were not collected or preserved by LSU or any of its offices, departments, or bureaus.42 In other words, LSU lacked control over Arp's notes, because they were personal in nature. Accordingly, the Court finds that the LSU had no duty to retain Arp's notes because they were not subject to the university's public retention policy.
For similar reasons, Plaintiffs' argument that the Public Records Act placed a duty upon LSU to preserve Arp's notes likewise fails. Although LSU acknowledged that, "as a public entity, all of our documents are subject to public records,"43 for those reasons previously discussed, Arp's notes are not university documents, but his own personal documents. Therefore, Arp's personal notes are not subject to Louisiana's Public Records Act.44
Based on the foregoing, the Court finds that the evidence demonstrates that LSU had no duty or obligation to preserve Arp's notes, and there is no genuine dispute of material fact as to this particular element of Plaintiffs' spoliation claim. Accordingly, Plaintiffs' spoliation claim must fail.
And yet, even if the Court had concluded that LSU did have such a duty, Plaintiffs' claim would still fail because they have shown no injury, and are thus, not entitled to any damages.45 "Spoliation constitutes a tort action against someone who has impaired the party's ability to institute or prove a civil claim due to negligent or intentional destruction of evidence.46 Plaintiffs alleged that Arp's notes "would reflect discussion of Herster's protected activities under La. R.S. 23:967 and Title VII as a reason for non-reappointment."47 Nevertheless, the inquiry on injury is whether the Plaintiffs have been impaired in their ability to, at this stage, prove their civil claim. As the Defendants correctly point out in their memorandum, Arp's notes were not the only evidence of the faculty panel discussions. There were approximately twenty other faculty members present at the two meetings,48 and, in addition to Arp, Plaintiffs have identified at least one other faculty member, Denyce Celentano, who is expected to testify at trial.49 Plaintiffs' supplemental brief further identifies other evidence they have relied upon to support their claims.50 Therefore, the Court finds that the Plaintiffs have been not been impaired in their ability to prove Herster's remaining state whistleblower and Title VII retaliation and discrimination claims. Accordingly, the Plaintiffs' spoliation claims shall be dismissed.
IV. CONCLUSION
For the foregoing reasons, Margaret Herster's FMLA retaliation claims asserted against A.G. Monaco, Jennifer Normand, and Mimi Ruebsamen, in their individual capacities, are hereby dismissed with prejudice.
It is further ordered that Margaret Herster and Scott Sullivan's spoliation claims are hereby dismissed with prejudice.
