Numa v. Cannizzaro et al

Filing 62

ORDER AND REASONS granting in part and denying in part 53 Motion to Dismiss for Failure to State a Claim. Further Ordered that the 52 Motion to Dismiss for Failure to State a Claim filed by New Orleans City is Granted and Numa's claims ag ainst the City are Dismissed With Prejudice. Further Ordered that the remaining defendants shall file a motion to dismiss on qualified immunity grounds and provide thorough analysis no later than April 18, 2014. Signed by Judge Ivan L.R. Lemelle on 3/26/2014. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSE NUMA

CIVIL ACTION

VERSUS

NO. 13-515

LEON CANNIZZARO ET. AL

SECTION: "B"(4)
ORDER AND REASONS

Nature of Motion and Relief Sought:
Before the Court are Defendant New Orleans City's (the "City")
Motion to Dismiss and for a More Definite Statement (Rec. Doc. 52)
and Defendants Leon A. Cannizzaro, Graymond Martin, Cheri Huffman,
and Orleans Parish District Attorney's Office's (collectively the
"DA Defendants") Joint Motion to Dismiss (Rec. Doc. 53). Plaintiff
Josie Numa ("Numa" or "Plaintiff") filed a single memorandum in
opposition to both motions. (Rec. Doc. 54).
IT IS ORDERED that the DA Defendants' Motion to Dismiss (Rec.
Doc. 53) is GRANTED in part and DENIED in part:
(i)

Numa's Section 1983 claims are DISMISSED as to all
Defendants

to the extent they seek recovery for actions

prior to Numa's March 19, 2012 termination,
(ii) Numa's Section 1983 claims against Leon Cannizzaro are
DISMISSED

entirely

as

to

Leon

Cannizzaro

in

his

individual capacity,
(ii) the Motion is DENIED without prejudice to reurge after

close of discovery to the extent it seeks dismissal of
Numa's

Title

VII

claims

against

Cannizzaro

in

his

official capacity and to the extent it seeks dismissal of
1983 claims against Cheri Huffman and Graymond Martin.
IT IS FURTHER ORDERED that the City's Motion to Dismiss (Rec.
Doc.

52)

is

GRANTED

and

Numa's

claims

against

the

City

are

DISMISSED with prejudice.
IT IS FURTHER ORDERED that the remaining defendants shall file
a motion to dismiss on qualified immunity grounds with a complete
rather than cursory analysis no later than Friday April 18th, 2014.
Procedural History and Facts of the Case:
This case arises from allegations of racial discrimination
within the Orleans Parish District Attorney's Office (the "DA's
Office"). Plaintiff worked as an attorney in that office from
February of 2007 to December of 2011. (Rec. Doc. 18, Second Amended
Complaint ("SAC" hereinafter) at 3, 9). In June of 2010 she was
transferred to the Child Support Enforcement Division, where the
alleged discrimination began. (SAC at 4).
Numa seeks redress for both discrete discriminatory acts and
a hostile environment, although her Complaint does not make clear
which discrete acts she considers actionable and which merely
underlie her hostile environment claims.

The first act described

in the SAC took place in October of 2010, when her coworker,
non-party Melissa Cullotta, interrupted her while she was speaking
2

in court and announced that Numa "speaks too fast" such that
"nobody can understand her with that accent." Id. Both Numa and
another co-worker "documented" the incident in letters addressed to
Defendant

Cherie

Huffman

("Huffman"),

Numa's

supervisor,

and

Defendant Leon Cannizzaro ("Cannizzaro"), the New Orleans Parish
District Attorney. Id. In response, Huffman told Numa that Cullotta
"was only trying to help." Id.
Numa further alleges that in November of 2010 Huffman called
a meeting of all Child Support Enforcement Division attorneys in
which she "direct[ed] her attention to the black ADA's present
[and] announced that these attorneys needed to 'get along with'
Melissa Cullotta." Id. at 4-5. During that meeting Huffman also
allegedly told each black attorney present that their performances
"needed improvement" and told each non-black attorney that their
performances were "satisfactory." Id. at 5.1
Numa also alleges that her work was reviewed by non-attorney
support staff, that such reviews were incorporated into Huffman's
official performance evaluations, and that such non-attorney
reviews were imposed only on black attorneys working within the
Child Support Division. Id.

Numa alleges that she complained to

Huffman of such practices, which went unanswered, and that she
consequently filed an internal complaint with Cannizzaro

1

Numa's SAC actual states that "non-white" attorneys were told their
performances were satisfactory. Id. this is clearly a typographical error and
the Court accordingly reads the complaint as stated above. Id.

3

concerning the same on January 7, 2011. Id. at 5-6.
Several weeks later, Numa requested transfer from the Child
Support Division, which Huffman denied. Id. at 6. According to
Numa, identical requests were granted to white attorneys during her
time there. Id.
In response to Numa's January 7 complaint, the DA's Office
opened an internal investigation and commissioned the law firm of
Charbonnet & Charbonnet to act as "Special Counsel" for the
investigation. Id. Internally, the investigation was "directed" by
Defendant Graymond Martin ("Martin"), First Assistant District
Attorney for Orleans Parish. Id.2 On April 6, 2011, Martin informed
Numa that the internal investigation uncovered "no pattern of
racial discrimination but found that a 'personality conflict'
existed between [Numa] and another ADA." Id. at 7. Numa challenges
those findings and portrays the investigation as a sham, asserting
that

all

but

one

of

the

black

ADA's

interviewed

for

the

investigation alleged that Huffman singled out black attorneys for
ridicule, allowed non-attorneys "de facto authority" over black
attorneys, and demoted or fired black attorneys rather than allow
them to transfer, as she did for white attorneys. Id.
Numa then filed her first EEOC complaint on April 25, 2011,

2

According to Numa, Huffman announced at sometime during this
investigation that no one "could ever get her for racial discrimination,
because she fired a white attorney," a claim that Numa alleges is false. Id.
at 6-7.

4

alleging discrimination on the basis of race. Id. On the same date
she sent a letter to the Department of Justice, complaining of the
same. Id. In the ensuing months, she sent a similar letter to the
NAACP and submitted internal complaints against legal certain legal
assistants. Id.
Finally, on December 11, 2011, Numa alleges that Huffman
verbally gave her a satisfactory performance evaluation but that
"the written evaluation did not align with [that] assessment."
Id. at 9. Numa "responded" to that written evaluation, complaining
that

her

evaluation

was

improperly

and

unethically

based

on

opinions of non-attorneys. Id. Several months later she received a
termination letter stating that she had been "laid off." Id.
Thereafter, on June 9, 2012, she filed a second EEOC complaint,
alleging retaliation for filing her first EEOC complaint and for
speaking out against Huffman's conduct. On December 18, 2012, the
EEOC sent Numa a right to sue letter, which she received on
December 21, 2012. Id. at 10.
On these grounds Numa brings Title VII claims for "race-based
discrimination/harassment,

hostile

work

environment,

and

retaliatory discharge" against Cannizzaro in his official capacity
and section 1983 claims premised on 42 U.S.C. section 1981 and the
Equal Protection Clause against Cannizzaro, Huffman, and Martin in

5

their individual capacities (Rec. Doc. 54-1 at 3).3
Law and Analysis
A. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief can be granted, a plaintiff must
include in her complaint "enough facts to state a claim to relief
that is plausible on its face." Bell Atl. Corp. v. Twombly, 550
U.S.

544,

570

(2007).

Facial

plausibility

exists

"when

the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678

for

the

(2009).

In considering whether claims should be dismissed, the court must
accept the factual allegations of the complaint as true and resolve
all ambiguities and doubts regarding the sufficiency of the claim
in favor of the plaintiff. Twombly, 550 U.S. at 555. A claim should
not be dismissed unless "it appears beyond a doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." McLain v. Real Estate Bd. of New

3

Numa's Complaint is somewhat ambiguous as to which claims she asserts
against each of the DA Defendants. Thus, the DA Defendants reasonably read the
SAC as asserting Title VII, section 1983, and section 1981 claims against each
Individual Defendant in their individual and official capacities. (Rec. Doc.
53-1 at 1). They also read the Complaint as asserting similar claims against
the DA's Office itself. Id. Accordingly, the DA Defendants move and argue for
dismissal of Title VII claims against the Individual Defendants in their
individual capacities, all claims against the DA's Office, and all other
claims against Huffman and Martin in their official capacities. Id. at 4-22.
The Court need not and does not address the doubtful merits of those perceived
claims, however, because Numa has effectively waived them by clarifying in her
memorandum that she only asserts the above-listed claims. (Rec. Doc. 54-1 at
1, 3).

6

Orleans, Inc., 444 U .S. 232, 246 (1980) (quoting Conley v. Gibson,
355 U.S. 41, 45–46 (1957)). However, if the complaint contains only
"conclusory

allegations

and

unwarranted

deductions

of

fact,"

dismissal is warranted. Blackburn v. City of Marshall, 42 F.3d 925,
931 (5th Cir.1995).
B. Title VII Claims
Title VII prohibits employers from discriminating against
employees on the basis of race, color, religion, sex, or national
origin.

42

U.S.C.

§

2000e-2

et

seq.

Courts

have

recognized

discrete types of actionable Title VII claims, three of which Numa
appears

to

assert

here:

disparate

treatment

claims,

hostile

environment claims, and retaliation claims. See, e.g., National
R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)(discussing the
parameters for timeliness of each type of claim). The DA Defendants
contend that Numa has failed to state a claim under Title VII under
each theory, that her claims are premature, and that her claims are
time-barred. Each contention is without merit as discussed below.
1. Timeliness of EEOC Charges
Plaintiff's asserting Title VII claims must first submit a
"charge" with the EEOC "within 180 days after the alleged unlawful
employment practice occurred." Morgan, 536 U.S. at 109 (quoting 42
U.S.C. § 2000e-5(e)(1)). Timely filing such a charge is not a
jurisdictional prerequisite, but “a precondition to filing suit in
district court.” Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th
7

Cir. 1996).
Whether this precondition is met and a whether Title VII claim
is thereby timely filed turns on the type of unlawful employment
practiced alleged. Where plaintiffs seek redress for discrete
discriminatory acts, "such as termination, failure to promote, [or]
denial of transfer," they must first file a charge within 180 days
of such act for the claims to be actionable. Morgan, 536 U.S. at
114-15.
Hostile environment claims, which are "different in kind from
discrete acts," id. at 115, are subject to the looser timeliness
constraints under the "continuing violation" doctrine. Stewart v.
Mississippi

Transp.

Com'n,,

586

F.3d

321,

238

(2009)(citing

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).
Under that doctrine, a hostile environment claim is timely so long
as it brought within 180 days of any act contributing to that
claim. Id.
The continuing violation doctrine does not, however, allow
courts to consider all acts outside of the 180 time period. Only
"related" acts may combine to substantiate or make timely hostile
environment claims. Stewart, 586 F.3d at 238 (holding that "pre-and
post-limitations period incidents involv[ing] the same type of
harassment . . . perpetrated by the same manager" are sufficiently
related). Moreover, separate acts do not constitute a continuing
violation if they are separated by an intervening and prompt

8

remedial action by the employer. Id. at 329. Finally, the court's
equitable powers may "temper" the continuing violation doctrine to
"honor Title VII's remedial purpose without negating the particular
purpose of the [EEOC] filing requirement." Id. at 328 (citations
and quotations omitted).
Here, Numa filed a two separate EEOC charges, one on April 25,
2011 and another on June 19, 2012. Neither the SAC nor Numa's
memoranda

specify

which

discrete

actions

Numa

considers

individually actionable. The Court reads her complaint as asserting
a disparate treatment claim for (i) denial of her January 7, 2011
transfer request, (ii) her performance review on December 20, 2011
and (iii) her termination. In each instance Numa filed a charge for
discrimination on the basis of race within 180 days of the alleged
discrete act. Her April 2011 charge was filed within 180 days of
her transfer request, which was subsequently denied, and both her
performance review and termination occurred within 180 days from
June

2012

charge.

Her

allegations

of

discrete

discriminatory

actions were therefore timely.
Numa's Complaint also fails to specify which acts underlie her
hostile environment claim. It is nevertheless clear that this claim
was also timely, as each of those acts fall within 180 days of at
least

one

EEOC

charge

and

each

was

allegedly

committed

or

orchestrated by the same supervisor, Huffman. The Court does not
find that the internal investigation was an intervening act for the

9

purposes of timeliness in light of the fact that the Defendants
have not argued this is the case and in light of the SAC's
characterization of the investigation.
The DA Defendants contend that all of Numa's claims are timebarred except those premised on events occurring within the 180
days before he June 12, 2012 EEOC filing. Id. at 12. Thus, the
Defendants contend that Numa's only claims not time-barred are
those premised on her March 2012 termination. Id.
however,

plainly

ignores

the

distinction

This argument,

between

hostile

environment and discrete act claims and the fact that Numa filed a
separate, initial EEOC charge on April 25, 2011, and for those
reasons is without merit.
Accordingly, Numa's Title VII claims are not time-barred

for

failure to file charges with the EEOC.
2. Exhaustion of Administrative Remedies & Timeliness of Suit
Plaintiffs asserting discrimination claims under Title VII
must first exhaust administrative remedies before filing suit in
federal court. Taylor v. Books A Million, Inc., 296 F.3d 376, 37879 (2002). Exhaustion occurs when a plaintiff (i) files a timely
charge with the EEOC and (ii) receives a "right to sue" letter from
that agency. Id. at 379. To be timely filed, Title VII suits must
be filed within 90 days of receipt of right to sue letters. Nilsen
v.

City

of

Moss

Point,

Miss.,

674

F.2d

379,

381

(5th

Cir.

1982)(citing 42 U.S.C. § 2000e-5(f)(1)). While the timeliness

10

requirement is strictly construed, Taylor, 296 F.3d at 379, the
substantive scope of a judicial complaint is identical to the
"scope of the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination." Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)(quotations omitted);
see also Kirkland v. Buffalo Bd. of Ed., 622 F.2d 1066, 1068 (2d
Cir. 1980)(while a right to sue letter does not constitute "an open
license

to

employer,"

litigate
it

does

any
allow

claim

of

judicial

discrimination
consideration

against
of

an

claims

"reasonably related to the allegations in the complaint filed with
the EEOC." )
Here, Numa's allegations are sufficient to survive dismissal
on these grounds. She alleges that she filed two charges with the
EEOC, the first in April of 2011, alleging discrimination on the
basis of race, and the second in June of 2012, alleging retaliatory
discharge. (SAC at 2, 10). She further claims that she received a
single right to sue letter on December 21, 2012, in response to
both claims. (SAC at 10, Rec. Doc. 54-1 at 7). Her suit is thus
timely, because she initiated this suit 89 days later on March 19,
2013, one day shy of the 90 day deadline.
The DA Defendants contend that Numa has not exhausted her
remedies because she did not receive an EEOC right to sue letter
explicitly responsive to her January 2011 charge. Id. at 7. This
contention rests entirely fact that Numa's right to sue letter is

11

assigned number 451-2012-965. Id. at 6. In the alternative, the DA
Defendants also contend that if Numa received a right to sue letter
separate from the 451-2012-965 letter, her claims premised on her
April 2011 charge are untimely.

Id.

at 7.

These contentions

overlook that actionable Title VII claims may be based "not only
upon the specific complaints made by the employee's . . . EEOC
charge, but also upon any kind of discrimination like or related to
the charge's allegations, limited only by the scope of the EEOC
investigation that could reasonably be expected to grow out of the
initial charges discrimination." Fellows v. Universal Restaurants,
Inc., 701 F.3d 447, 450 (5th Cir. 1983).
In short, Numa's allegations concerning her pre-suit actions
establish that she exhausted administrative remedies and timely
filed suit in this Court.
3. Failure to State a Claim
As noted above, Courts recognize several types of "statusbased discrimination claims" under Title VII. As relevant here,
plaintiffs may assert "disparate treatment" claims under 42 U.S.C.
§ 2000e-2(a) and (k), "retaliation" claims under 42 U.S.C. § 2000e3, and hostile environment claims as recognized in Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993). See, e.g., Barnes v.
McHugh, CIV.A. 12-2491, 2013 WL 3561679 (E.D. La. 2013)(listing
categories of claims). Numa expressly asserts hostile environment
and retaliation claims, but her SAC and briefs remain ambiguous as

12

to which discrete actions underlie her disparate treatment claims.
As

noted

above,

the

Court

reads

her

complaint

as

asserting

disparate treatment claims for (i) denial of her January 2011
transfer request, (ii) her performance review on December 20, 2011
and (iii) her termination. If Numa intends to assert disparate
treatment claims for other acts alleged in her SAC, she must seek
leave to amend and thereby clarify her claims NO LATER THAN April
11, 2014. She is advised however, that she will not be granted
leave to assert additional facts, a task for which she has already
had ample opportunity.
The DA Defendants contend that Numa has failed to state a
claim under any theory. (Rec. Doc. 53-1 at 7-11). With respect to
her hostile environment claim, they contend that the facts alleged
are not sufficiently severe or pervasive to alter the conditions of
her employment. Id. at 7-9. With respect to her retaliation claim,
the Defendants contend that she has not sufficiently alleged
participation in "protected activity."

Id.

at 10. As to her

disparate treatment claim, they contend that she only alleges one
adverse employment action (discharge) and fails to allege that
similarly situated people of a different class were not subject to
the same. Id. at 11.
While a plaintiff must establish a prima facie case on motion
for summary judgment, at the motion to dismiss stage a plaintiff
need only provide a short and plain statement of the claim that

13

shows she is entitled to relief. Swierkiewicz v. Sorema N. A., 534
U.S.

506,

512

(2002)

(holding

that

imposing

a

prima

facie

requirement during the pleadings stage is inappropriate); see also
Raj

v.

Louisiana

State

Univ.,

714

F.3d

322,

331

(5th

Cir.

2013)("Inasmuch as the district court required Raj to make a
showing of each prong of the prima facie test for disparate
treatment at the pleading stage, the district court erred by
improperly substituting an evidentiary standard for a pleading
requirement.")(citation and quotations omitted). In Swierkiewicz,
the Court explained that because “the prima facie case operates as
a flexible evidentiary standard, it should not be transposed into
a rigid pleading standard for discrimination cases.” 534 U.S. at
512. Of course, while Numa need not prove each element of her
claims at this stage, her “factual allegations must be enough to
raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. This inquiry “simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence” that
her claims are merited. Id. at 556.
To state a hostile work environment claim under Title VII a
plaintiff must allege facts sufficient to show that the work
environment “was sufficiently severe or pervasive to alter the
conditions of her employment.” Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 67 (1986). Further, a prima facie case requires a
plaintiff to show that “more than just a few isolated incidents of

14

racial enmity” occurred. Roberts v. Tex. Dept. of Human Servs., No.
00–41335, WL1468757, at *2 (5th Cir. 2001). Occasional racial
comments

do

not

rise

to

the

level

of

severe

or

pervasive

harassment. Id. “It is only a violation of Title VII when the
workplace is so ‘heavily polluted with discrimination as to destroy
the

emotional

and

psychological

stability

of

the

minority

[employee].’ “ Id. (quoting Rogers v. E.E. O.C., 454 F.2d 234, 238
(5th Cir.1971) (disapproved of on other grounds in E.E.O.C. v.
Shell Oil Co., 466 U.S. 54, 62 (1984)).
Here, where her allegations are taken as true, Numa has stated
a hostile environment claim. She alleges that she and her black coworkers were singled out for ridicule, were systematically denied
transfers allowed to non-black attorneys, were referred to as
"girls," and were categorically subject to non-attorney review
while non-black attorneys were not. For these and other reasons,
the Court finds these allegations sufficiently severe and pervasive
enough to alter the conditions of her employment.
To state a claim for retaliation, a plaintiff must allege
facts sufficient to show that (i) she engaged in a protected
activity as defined by Title VII; (ii) her employer was aware of
that activity; (iii) she suffered a materially adverse employment
action;

and

(iv)

there

was

a

causal

connection

between

the

protected activity and the adverse employment action. McCoy v. City
of Shreveport, 492 F.3d 551 at 556-57 (5th Cir. 2007). “An employee

15

has engaged in protected activity when [she] has (1) ‘opposed any
practice made an unlawful employment practice’ by Title VII or (2)
‘made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing’ under Title VII.”
Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364,
372–73

(5th

Cir.1998)

(quoting

42

U.S.C.

§

2000e–3(a)).

Additionally, as the Supreme Court recently clarified, the causal
requirement for retaliation claims must be proved according to
traditional principles for but-for causation. Univ. of Texas Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
Here, Numa has satisfied each of these elements and stated a
claim for retaliatory discharge. She filed charges with the EEOC
and she alleges retaliation in that she was fired because of that
action and for otherwise "speaking out against a pattern of
discriminatory conduct" (SAC at 10). Such allegations suffice at
this stage of litigation.
To establish a prima facie case of disparate treatment in
employment, an employee must demonstrate that (1) he is a member of
a protected class, (2) he was qualified for the position at issue,
(3) he was the subject of an adverse employment action, and (4) he
was treated less favorably because of his membership in that
protected class than were other similarly situated employees who
were not members of the protected class, under nearly identical
circumstances. Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259

16

(5th Cir. 2009). An employer's action is "because of" membership in
a protected class if "the motive to discriminate was one of the
employer's motives, even if the employer also had other, lawful
motives that were causative in the employer's decision." Univ. of
Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2520 (2013).
Here, the DA Defendants contend that Numa fails to state a
disparate treatment claim because she only alleges one employment
action (termination) and fails to allege that similarly situated
persons of a different class were treated differently. As noted
above, however, the Court reads the Complaint to assert disparate
treatment

claims

for

denial

of

transfer,

for

discriminatory

performance review, and for discharge. Each, when substantiated
with particular proof, may constitute adverse employment actions.
See, e.g., Alvarado v. Texas Rangers, 492 F.3d 605, 614 (5th Cir.
2007) ("denial of a transfer may be the objective equivalent of the
denial of a promotion, and thus qualify as an adverse employment
action, even if the new position would not have entailed an
increase in pay or other tangible benefits."); Mitchell v. Snow,
326 F. App'x 852, 855 (5th Cir. 2009) (holding that a negative
performance review did not qualify as an adverse employment action
per

se,

but

suggesting

that

negative

reviews

with

material

consequences may qualify.) And, once again, Numa sufficiently
alleges causation, that she was qualified, and the similarly
situated non-black attorneys did not suffer her fate.

17

In summary, Numa's Title VII claims as asserted against
Cannizzaro in his official capacity were timely filed, followed
exhaustion of administrative remedies, and sufficiently state a
claim upon which relief can be granted. It is therefore ORDERED
that the DA Defendants' Motion to Dismiss is DENIED with respect to
Title VII claims.
C. 1981 & 1983 Claims
Numa also seeks relief against Cannizzaro, Martin, and Huffman
as individuals "under 42 USC §1981 through 42 USC §1983, for
violation of her right to be free from discrimination based on
race, in accordance with the equal protection clause of the 14th
Amendment to the United States Constitution." (Rec. Doc. 50 at 2).
The DA Defendants contend that such claims are prescribed, that
Numa has failed to state a claim under either statute, and that the
individual defendants are entitled to qualified immunity. (Rec.
Doc. 53-1 at 4, 14-15, 18-21).
1. Prescription
Federal law determines when section 1983 and 1981 claims
accrue. Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998).
State law, however, determines prescriptive periods, and Louisiana
law subjects such claims to the one-year prescriptive period set
forth in LSA CC Art. 3492. Elzy v. Roberson, 868 F.2d 793, 794-95
(5th Cir. 1989); Taylor v. Bunge Corporation, 775 F.2d 617, 618
(5th Cir. 1985). For purposes of calculating that prescription

18

period, such causes of action accrue when a plaintiff knows or has
reason to know of the injury which forms the basis of her action.
Jacobsen, 133 F.3d at 319; Gonzales v. Wyatt, 157 F.3d 1016, 1020
(5th Cir. 1998). Notably, the filing of EEOC charges does not toll
the state prescriptive period governing section 1981 and 1983
claims.

See Taylor

775 F.2d at 618-19;

Fussell v. Bellsouth

Communications, Inc., 1998 WL 12229 at 2 (E.D. La. 1998).
However, the continuing violation doctrine, an equitable
exception to the one-year period, may apply where the unlawful
employment practice manifests itself over time rather than as a
series of discrete acts. Waltman v. International Paper Co., 875
F.2d 468, 474 (5th Cir.1989) (quoting Abrams v. Baylor College of
Medicine, 805 F.2d 528, 532 (5th Cir.1986)). The factors to be
considered in determining whether the continuing violation doctrine
applies are as follows:
[t]he first is subject matter. Do the alleged acts
involve the same type of discrimination, tending to
connect them in a continuing violation? The second is
frequency.

Are

the

alleged

acts

recurring

(e.g.,

a

biweekly paycheck) or more in the nature of an isolated
work assignment or employment decision? The third factor,
perhaps of most importance, is degree of permanence. Does
the act have the degree of permanence which should
trigger an employee's awareness and duty to assert his or
her rights, or which should indicate to the employee that
the continued existence of the adverse consequences of
the act is to be expected without being dependant on a
19

continuing intent to discriminate?
Waltman, 875 F.2d at 475 (quoting Berry v. Board of Supervisors of
Louisiana State University, 715 F.2d 971, 981 (5th Cir.1983).
Here, Numa initiated suit on March 19, 2013. Thus, unless the
continuing violation doctrine or some other equitable doctrine
tolls or extends the prescription period, all claims that accrued
prior to March 19, 2012 are prescribed. The only act described in
her complaint that occurred after that date is her March 29, 2012
termination. Her complaint makes clear that she was aware of the
harms and acts alleged as they arose. Her various letters to
superiors, to outside groups, and to the EEOC itself leave no room
for doubt. For similar reasons, and after considering the factors
set forth in Waltman, the Court finds that no equitable doctrine
functions to toll the prescription period. Thus, Numa's section
1981 and 1983 three claims are prescribed except to the extent they
seek recovery for her March 19, 2013 termination.
Accordingly, it is ORDERED that the DA Defendants' Motion to
Dismiss is GRANTED with respect to Plaintiff's section 1983 claims
to the extent they seek recovery for acts preceding her March 19
termination.
2. Failure to State a Claim
The DA Defendants argue that Numa fails to state a claim in
several respects. Essentially, they argue that Numa fails to state
a claim under the heightened pleading requirements for civil rights

20

suits against governmental officials in the individual capacities
as set forth by Anderson v. Pasadena Independent School District,
184 F.3d 439, 443 (5th Cir. 1999).4
The Fifth Circuit requires that "plaintiffs suing governmental
officials in their individual capacities must allege specific
conduct giving rise to a constitutional violation." Anderson v.
Pasadena

Indep.

Sch.

Dist.,

184

F.3d

439,

443

(5th

Cir.

1999)(citations omitted). Thus, to survive a motion to dismiss,
such actions must be pleaded with factual detail and particularity
rather than mere "conclusionary allegations." Id. (quotations and
citations omitted). Such detail and particularity must be alleged
with respect to individual defendants who "were either personally
involved in the constitutional violation or whose acts are causally
connected to the constitutional violation alleged." Id. Moreover,
a "supervisory official may be held liable under § 1983 only if (1)
he

affirmatively

participates

in

the

acts

that

cause

the

constitutional deprivation, or (2) he implements unconstitutional
policies that causally result in the constitutional injury." Gates
4
The Defendants also contend that Numa's section 1981 claims have not
been properly premised on section 1983. While they are correct that 1981
claims must be brought through section 1983, see Felton v. Polles, 315 F.3d
470, 481 (5th Cir. 2002) (“independent § 1981 claim—not brought through §
1983—against [his supervisor] in his individual capacity is contrary to Jett”
(citing Jett v. Dallas Independent School District, 491 U.S. 701, 735(1989)),
erroneously contend that Numa has failed to do so here. This argument ignores
the entire substance of the Numa's Third Amended Complaint, which added the
added language stating that her claims are asserted "under 42 USC §1981
through 42 USC §1983, for violation of her right to be free from
discrimination based on race, in accordance with the equal protection clause
of the 14th Amendment to the United States Constitution." (Rec. Doc. 50 at 2).
Such language plainly and sufficiently asserts a claim "under" section 1981
"through" section 1983.

21

v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d 404, 435
(5th Cir. 2008).
Here, Numa fails to state a 1983 claim against Cannizzaro but
sufficiently states a claim against Huffman and Martin. As to
Cannizzaro, Huffman fails to allege his direct participation in
discriminatory acts or other acts that caused such harm. The SAC
specifically alleges only that he received internal complaints,
that he did not override Huffman's denial of transfer, and that he
initiated an investigation by Charbonnet & Charbonnet. (SAC at 4-6,
8). All other references to Cannizzaro–-that he had knowledge of
Huffman's retaliatory motive in firing her, that the other facts
alleged "clearly indicate [Cannizzaro's knowledge] of Huffman's
discriminatory practices[,]" and that Cannizzaro offered "tacit
approval" of such practices--are conclusionary and insufficient to
state

a

claim.

establishing

She

has,

Cannizzaro's

in

short,

failed

affirmative

to

allege

involvement

or

facts
causal

connection with discriminatory acts. Morever, to the extent Numa
seeks to hold Cannizzaro accountable under a theory of supervisory
liability, she has not alleged that he implemented a policy that
causally resulted in discrimination. For these and other reasons IT
IS ORDERED that the DA Defendants' Motion to Dismiss is GRANTED
with

respect

to

Numa's

section

1983

claims

asserted

against

Cannizzaro in his individual capacity.
In

contrast,

Numa

has

alleged

22

with

particularity

facts

supporting her 1983 claims against both Huffman. Huffman is, in
short, is the primary actor in the SAC and is directly responsible
for the most of alleged disparate treatment, hostility, and other
actions described above.

IT IS THEREFORE ORDERED that the DA

Defendants' Motion to Dismiss is DENIED without prejudice to reurge
after completion of discovery to the extent it seeks dismissal of
1983 claims against Huffman for failure to state a claim.
Similarly, Numa has alleged sufficient facts to state a
section 1983 claim against Martin. While he appears as a secondary
actor in SAC's complaint, his alleged involvement in "directing"
the internal investigation, among other things, is sufficient to
state a claim. Accordingly, IT IS ORDERED that the DA Defendants
Motion to Dismiss is DENIED without prejudice to reurge after
completion of discovery to the extent it seeks dismissal of 1983
claims against Martin for failure to state a claim.
3. Qualified Immunity.
Finally,

the

DA

Defendants

argue

that

the

individual

defendants are entitled to qualified immunity. This argument,
however, is woefully incomplete. In two short paragraphs, the
Defendants simply recite the two-prong test put forth in Saucier v.
Katz, 533 U.S. 194, 202 (2001), address only a portion of Numa's
allegations, and summarily conclude that "[q]ualified immunity
clearly attaches." (Rec. Doc. 53-1 at 20). That is, the Defendants
provide no analysis beyond a bare assertion of qualified immunity.
23

It is not the duty of this Court to provide the Defendants
with arguments they fail to make. See, e.g., In re Cao, 619 F.3d
410, 435 (5th Cir. 2010) ("However, as a court comprised of Article
III judges, our role is not to create arguments for adjudication-but rather, our role is to adjudicate those arguments with which we
are presented.") Accordingly,

IT IS ORDERED (i)

that the DA

Defendant's Motion to Dismiss is DENIED without prejudice to reurge
with respect to the 1983 claim against Huffman, and (ii) that those
Defendants shall file a motion seeking dismissal on qualified
immunity grounds with a memorandum providing thorough rather than
cursory analysis no later than April 18th, 2014.
D. The City's Motion to Dismiss and Alternative Motion for a More
Definite Statement
Numa's Complaint also names the City as a Defendant, but fails
to assert any actual claims against it. That is, she lists the City
as a defendant in the caption of her complaint and again under the
"Parties" section of her complaint. In the latter section, wherein
plaintiffs typically describe named defendants, the Complaint
simply states that "on information and belief, the City of New
Orleans insures the District Attorney’s office, and its assignees,
against claims brought pursuant to Title VII." (SAC at 3). There
are no other references to the City–-no causes of action are
asserted and no facts are alleged in the Complaint's self-styled
"Factual Allegations" section. Id. at 3-15. In short, Numa neither

24

alleges facts specific to nor asserts legal grounds for relief
against the City.

For these and other reasons Numa has failed to

state a claim against the City and it is therefore ORDERED that the
City's Motion to Dismiss (Rec. Doc. 52) is GRANTED.
Conclusion
IT IS ORDERED that the DA Defendants' Motion to Dismiss (Rec.
Doc. 53) is GRANTED in part and DENIED in part. Numa's Section 1983
claims are (i) DISMISSED as prescribed to the extent they seek
recovery for actions prior to Numa's March 19, 2012 termination and
(ii) DISMISSED for failure to state a claim as to Cannizzaro in his
individual capacity.
IT IS FURTHER ORDERED that the City's Motion to Dismiss (Rec.
Doc.

52)

is

GRANTED

and

Numa's

claims

against

the

City

are

DISMISSED with prejudice.
IT IS FURTHER ORDERED that the remaining defendants shall file
a motion to dismiss on qualified immunity grounds and provide
thorough rather than cursory analysis no later than Friday, April
18th, 2014.
New Orleans, Louisiana, this 26th day of March, 2014.

____________________________
UNITED STATES DISTRICT JUDGE

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