A federal judge from the Eastern District of Louisiana has delivered a partial victory to Tulane University and a related institutional defendant in a case in which it was sued by a disgruntled coach, who claimed the school’s actions constituted a breach of contract and a violation of Louisiana’s “abuse of rights” doctrine.
Specifically, the court ruled for the defendants on the abuse of rights claim, finding it “untimely.” However, it did leave the door open for plaintiff O’Neill Gilbert to amend the compliant if he could find more recent evidence to support the claim.
O’Neill was hired by Tulane’s defensive coordinator on December 28, 2007, to serve as its defensive line coach. Then, on March 2008, he was promoted to defensive coordinator. Pursuant to the terms of the employment agreement, he was to remain in that position until June 2010.
However, he was fired on December 3, 2008, after the Green Wave finished its season 2-8. At the time, the school issued a two-sentence statement, which read, “O’Neill Gibert is no longer employed by Tulane University. This is a personnel issue and the university cannot comment further.”
The plaintiff told the media: “They’ve done me wrong. I’m not the only problem on that team. Our defense was very respectable early on, and we still finished No. 5 in total defense in Conference USA and No. 1 in pass defense. There’s something wrong with this picture.”
The plaintiff ultimately sued, claiming, among other things, that the defendants, through their authorized representatives, utilized print and broadcast media to routinely accuse him of engaging in unprofessional behavior and divisive conduct, while employed as their’ Defensive Coordinator. As a result, he alleged, he was unable to obtain another coaching position with a NCAA Division I-A football program.
The defendants countered with Federal Rule of Civil Procedure 12(b)(6) motion to dismiss the plaintiff’s abuse of rights claim, as well as any new claim for “any and all other violations that may be proved at trial.”
In its analysis, the court reviewed the plaintiff’s contentions in the abuse of rights claim:
“1. Plaintiff entered into an employment agreement with Defendants to serve as Tulane’s Defensive Coordinator from March 2008 until June 2010.
2. Tulane’s defense met or exceeded expectations during the 2008 football season.
3. Defendants’ representatives told Plaintiff that they were extremely pleased with the job that he was doing both on and off the field.
4. Plaintiff outperformed his predecessor and his counterpart, the Tulane University Football Team Offensive Coordinator.
5. Defendants fired Plaintiff 15 months prior to the expiration of his employment contract.
6. After termination, Defendants, via print and broadcast media, routinely accused Gilbert of engaging in unprofessional behavior and divisive conduct which made it impossible for Plaintiff to obtain another coaching position with a Division I-A football program.”
The court went on to note that Louisiana law “recognizes four situations to which the abuse of rights doctrine has been recognized to apply:
1. If the predominant motive for it was to cause harm;
2. Absent proof of an intent to harm, if there was no serious or legitimate interest in the exercise of the right worthy of judicial protection;
3. If the exercise of the right is against moral rules, good faith, or elementary fairness; or
4. If the holder of the right exercised the right for a purpose other than that for which the right was granted.”
See Illinois Cent. Gulf. Railroad Co. v Int’l Harvester Co., 368 So. 2d 1009, 1014 (La. 1979).
Based on the” factual assertions summarized above,” the court found that the plaintiff’s
allegations “constitute only a formulaic recitation of the elements of a cause of action, which is legally inadequate.” Additionally, the court noted that the claim is untimely.
“The plaintiff was terminated on December 2, 2008. Thus, any abuse of rights claim based on conduct occurring as of that date had to be asserted on or before December 2, 2009.”
O’Neill Gilbert v. The Tulane University of Louisiana et al.; E.D. La.; CIVIL ACTION NO. 10-2920 SECTION “N” (1), 2011 U.S. Dist. LEXIS 111801; 9/29/11.
Attorneys of Record: (for plaintiff) G. Karl Bernard, LEAD ATTORNEY, G. Karl Bernard & Associates, LLC, New Orleans, LA. (for defendants) Maria Nan Alessandra, LEAD ATTORNEY, David M. Korn, Kim M. Boyle, Phelps Dunbar, LLP (New Orleans), New Orleans, LA.
