Johnson v. Mixon et al

Filing 18

ORDER & REASONS denying 9 & 10 Motions to Dismiss for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 8/7/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HERMENA M. JOHNSON

CIVIL ACTION

VERSUS

NO. 13-2629

CARL W. MIXON ET AL.

SECTION F
ORDER AND REASONS

Before the Court are Rule 12(b)(6) motions to dismiss by
Carl Mixon and State Farm Fire and Casualty.

For the reasons

that follow, the motions are DENIED.
Background
This dispute involves alleged racial discrimination and
retaliation.
Hermena M. Johnson, an African-American woman, began working
for State Farm Fire and Casualty Company at its Mid-City office
on Canal Street in 1996.

Angela Leone was the agent in charge of

the Canal Street office, and the office was composed of four
licensed staff representatives and one non-licensed staff member.
Two of the four licensed staff representatives were AfricanAmerican and the other two were Caucasian.
staff member was Latino.

The one non-licensed

Ms. Johnson was employed as a licensed

staff representative, and her compensation included salary and
commissions.
Carl Mixon became the agent in charge of the Canal Street
office in 2000.

Mr. Mixon allegedly instituted changes within
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the office, including assigning customers to agents based on race
instead of alphabetically, which had been the practice before Mr.
Mixon's arrival.

Mr. Mixon also replaced minority staff (both an

African-American and the Latino staff member) with Caucasian
employees after the minority staff members resigned.

When the

Latino staff member resigned, Mr. Mixon purportedly said that he
did not want to expand "that business."

In 2010, Mr. Mixon also

moved the African-American receptionist from the front office to
the back office, replacing the front-office receptionist with a
Caucasian employee.

Mr. Mixon also allegedly used remarks like

"raghead" and "dago" in Ms. Johnson's presence.
In early 2012, Mixon terminated Johnson, who was the only
remaining African-American employee in the Canal Street office.
At the time of termination, Ms. Johnson had nineteen years of
experience and had worked for Mixon for twelve years.

Although

Ms. Johnson contends that she was the top-producing licensed
agent, the stated reason for Johnson's termination was that
"production" was "not there."

Ms. Johnson was replaced by a

Caucasian employee and the Canal Street office is currently
entirely Caucasian.

In December 2012, Ms. Johnson found

employment with another State Farm agent.
Ms. Johnson sent State Farm a draft of the complaint for
this lawsuit on January 30, 2013.

As a result, she alleges that

State Farm retaliated against her by denying her commissions on

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all sales from December 10-12, 2012 and February 1-April 26,
2013.
On May 6, 2013, Ms. Johnson sued Mr. Mixon and State Farm in
this Court, alleging that Mr. Mixon and State Farm discriminated
against her on the basis of race in violation of 42 U.S.C. §
1981, that State Farm retaliated against her in violation of 42
U.S.C. § 1981, and that State Farm discriminated against her in
violation of Louisiana Revised Statute 23:332.

Mr. Mixon and

State Farm now move to dismiss under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.
I. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

Such a motion is

rarely granted because it is viewed with disfavor.

See Lowrey v.

Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc.,
677 F.2d 1045, 1050 (5th Cir. 1982)).

In considering a Rule

12(b)(6) motion, the Court “accepts ‘all well-pleaded facts as
true, viewing them in the light most favorable to the
plaintiff.’”

See Martin K. Eby Constr. Co. v. Dall. Area Rapid

Transit, 369 F.3d 464 (5th Cir. 2004) (quoting Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).

But, in deciding

whether dismissal is warranted, the Court will not accept

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conclusory allegations in the complaint as true.
F.2d at 1050.

Kaiser, 677

Indeed, the Court must first identify allegations

that are conclusory and, thus, not entitled to the assumption of
truth.

Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A

corollary: legal conclusions “must be supported by factual
allegations.” Id. at 678.

Assuming the veracity of the well-

pleaded factual allegations, the Court must then determine
“whether they plausibly give rise to an entitlement to relief.”
Id. at 679.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).

“Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).”

Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (citations and footnote omitted). “A claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S.

at 678 (“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.”).

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This is a “context-specific

task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.

“Where a complaint

pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.”

Id. at 678 (internal

quotations omitted) (citing Twombly, 550 U.S. at 557).

“[A]

plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’”, thus, “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Twombly, 550 U.S. at 555

(alteration in original) (citation omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially “part of the pleadings.”

That is,

any documents attached to or incorporated in the plaintiff’s
complaint that are central to the plaintiff’s claim for relief.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498-99 (5th Cir. 2000)).

Also, the Court is permitted

to consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one
for summary judgment.

See United States ex rel. Willard v.

Humana Health Plan of Tex. Inc.,

336 F.3d 375, 379 (5th Cir.

2003).

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II. Discussion
Defendants contend that plaintiff fails to state a claim
upon which relief can be granted.

The Court does not agree.

A.
Plaintiff asserts race-based discrimination claims under 42
U.S.C. § 1981 and the Louisiana Employment Discrimination Law
(LEDL).

Claims under § 1981 and the LEDL are analyzed under the

same framework as Title VII employment discrimination claims.
See Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th
Cir. 2005); White v. Sloan, No. 08-3606, 2010 WL 487429, at *2
(E.D. La. Feb. 4, 2010).

To prove a claim of intentional

discrimination, also called disparate treatment, a plaintiff can
do so by relying on direct or circumstantial evidence.

See

Dunaway v. Cowboys Nightlife, Inc., 436 F. App'x 386, 389 (5th
Cir. 2011).

In the absence of direct evidence of discrimination,

courts analyze discrimination claims under the burden-shifting
framework established in McDonnell Douglas Corp v. Green, 411
U.S. 792, 802-05 (1973).
WL 487429, at *2.

See Jones, 427 F.3d at 992; White, 2010

Therefore, to establish a claim of race

discrimination under § 1981 and the LEDL, a plaintiff must prove
that she is (1) a member of a protected class; (2) qualified for
the position; (3) subject to an adverse employment action; and
(4) was replaced by someone outside the protected class or show
that similarly situated employees were treated more favorably.

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See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.
2007); see also Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 404 (5th Cir. 1999) (§ 1981); Mbarika v. Bd. of Supervisors
of La. State Univ., 992 So. 2d 551, 562 (La. App. 1 Cir. 2008)
(LEDL).
The U.S. Supreme Court and the Fifth Circuit have clearly
stated that a plaintiff need not establish a prima facie case of
discrimination to survive a Rule 12(b)(6) motion to dismiss.
See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12
(2002); Raj v. La. State Univ., 714 F.3d 322, 330 (5th Cir. 2013)
(noting that the district court erred by “improperly substituting
an ‘evidentiary standard’ for a ‘pleading requirement’”).
“Plaintiff must simply plead a plausible claim.”

EEOC v. Bass

Pro Outdoor World, LLC, No. 11-3425, 2013 WL 1124063, at *5 (S.D.
Tex. Mar. 18, 2012) (recognizing that at the 12(b)(6) stage, the
court does not require the plaintiff to plead a prima facie
case).

However, "the prima facie elements are not entirely

irrelevant, and no plaintiff is exempt from his obligation to
allege sufficient facts to state all elements of his claim. . . .
Instead, the alleged facts must also be sufficient to at least
create an inference that the plaintiff was discriminated against
due to his race."

Wesley v. Scobee Foods, Inc., No. 12-1836,

2013 WL 3324092, at *4 n.6 (N.D. Tex. June 28, 2013).

Because

Rule 12(b)(6) requires the Court to accept all well-pleaded facts

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as true and in a light most favorable to the plaintiff, the Court
finds that plaintiff has pleaded sufficient factual allegations
to state a plausible claim.1
Here, Johnson has alleged that she is a member of a
protected class—namely, that she is an African-American.

She has

also pleaded factual allegations regarding her qualifications:
she had twelve years of experience working with Mr. Mixon and
nineteen years of experience working with State Farm.

In

addition, she was terminated, which in law constitutes an adverse
employment action.

See Pegram v. Honeywell, Inc., 361 F.3d 272,

282-83 (5th Cir. 2004) (“It is beyond dispute that a termination
constitutes an adverse employment action.”).

As for the fourth

prima facie element, defendants contend that Johnson has failed
to show that she was treated less favorably than other similarly
situated employees.2

Defendants gloss over the disjunctive

nature of the fourth prima facie element:

the plaintiff must

prove that she was "replaced by someone outside [her] protected
group or was treated less favorably than other similarly situated
employees outside the protected group."
(emphasis added).

1

McCoy, 492 F.3d at 556

Johnson alleges that she was replaced by a

The Court expresses no opinion as to the merits of the claim.

2

Specifically, State Farm notes that "Johnson does not allege
she was provided with less favorable work conditions or was in
any way treated less favorably than similarly situated Caucasian
employees." This may well weaken her case on the merits, but at
this pleading stage does not support summary dismissal.
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Caucasian employee—someone outside her protected class.
Defendants’ main contentions with Johnson’s complaint are
that the majority of the factual allegations (with the exception
of Johnson’s termination) relate to other employees; the actions
taken against the other employees cannot serve as the basis for
Johnson’s discrimination claim; and the actions against the other
employees are insufficient to establish pretext for Johnson’s
termination.

Although the Court agrees that the complaint

contains factual allegations that pertain to other employees, the
complaint nevertheless alleges that defendants took action
against plaintiff.

In addition, regarding the factual

allegations pertaining to other employees, the U.S. Supreme Court
has held that, among other things, evidence of defendant’s
“general policy and practice with respect to minority employment”
may be relevant in demonstrating pretext.

See McDonnell, 411

U.S. at 804-05; see also Jones v. La. State Univ. Med. Ctr. &
Health Care Hosp., No. 01-1687, 2003 WL 1342945, at *6 (E.D. La.
Mar. 18, 2003) ("Pretext may be demonstrated in various ways, to
wit: (1) by demonstrating that the defendant's reasons are
unworthy of credence; (2) by evidence showing the treatment of
the plaintiff before the dispute and the defendant's reaction to
plaintiff's legitimate civil rights activities, and (3) by
evidence of defendant's general policy and practice with respect
to minority employment." (footnotes and internal quotation marks

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omitted));

Hensley v. Gen. Motors Corp., No. 3992370, 2003 WL

298902, at *7 (N.D. Tex. Feb. 11, 2003) (noting that pretext can
be demonstrated by various types of proof, including evidence on
defendant’s general policy and practice with respect to minority
employment, and noting that courts should not limit plaintiff to
a precise manner of proving pretext).

Therefore, because the

Court must accept all well-pleaded facts as true and in a light
most favorable to the plaintiff, the Court cannot state, based on
this record, that plaintiff has not sufficiently pleaded factual
allegations that give rise to an inference of discrimination.
Defendants also assert that a majority of these factual
allegations regarding actions taken against other employees are
time barred and plaintiff cannot rely on them as a basis for her
discrimination claim.

The statute of limitations period is four

years for claims asserted under § 1981 and one year for claims
under the LEDL.

See Jones v. R.R. Donnelley & Sons Co., 541 U.S.

369, 382 (2004); La. Rev. Stat. § 23:303(D).

Plaintiff’s main

assertion, that she was terminated in 2012, is not prescribed
under either statute.

Plaintiff, however, erroneously relies on

the continuing violation doctrine, noting that "Mixon's actions
of replacing African-American employees with white employees over
time, either through termination of African-American employees or
otherwise, so that the entire staff is now white, constitutes
recurring acts. . . . [O]nly Plaintiff's termination had the

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degree of permanence to trigger her duty to assert her rights."
The Fifth Circuit has expressly stated the continuing violation
doctrine does not apply to one-time employment events like
termination, demotion, or failure to hire or promote.

Celestine

v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001)
(citing Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998)).
It is also unclear to the Court why plaintiff is attempting to
apply the continuing violation doctrine to the actions taken
against other employees:

plaintiff's termination is not untimely

under either statute, and plaintiff has failed to plead a claim,
like hostile work environment, in which the continuing violation
doctrine is applicable.
B.
To state a retaliation claim under § 1981, a plaintiff must
show that (1) she participated in a protected activity; (2) her
employer took an adverse employment action; and (3) a causal link
existed between the protected activity and the adverse action.
McCoy, 492 F.3d at 556-57.

Protected activity is defined as

"opposition to any practice" that is rendered unlawful by
antidiscrimination statutes, including the "making a charge,
testifying, assisting, or participating in any investigation,
proceeding or hearing" under the statutes.

Ackel v. Nat'l

Commc'ns, Inc., 339 F.3d 376, 385 (5th Cir. 2000).

"An

employee's informal complaint to an employer may constitute

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participation in a protected activity, provided that the
complaint in opposition to the conduct is unlawful, and the
employee holds a good faith, reasonable belief of the conduct's
unlawfulness."

Clark v. Chickasaw Cnty., Miss., No. 09-192, 2010

WL 3724301, at *4 (N.D. Miss. Sept. 16, 2010).

The Court agrees

that plaintiff's factual allegations are insufficient to support
a retaliation claim:

plaintiff merely alleges that she sent a

copy of her complaint of racial discrimination to State Farm, and
"State Farm's refusal to pay Ms. Johnson commissions from
December 10-20, 2012 and from and from [sic] February 1-April 26,
2013, including prohibiting Ms. Johnson from selling policies
during a portion of this time, constitutes retaliatory conduct."
Perhaps realizing this problem, plaintiff attempts to provide
more factual allegations in her opposition memorandum, including
the submission of numerous exhibits.

Although the Court can

consider documents attached to or incorporated in the plaintiff's
complaint, the exhibits attached to the memorandum are outside
the scope of a Rule 12(b)(6) motion and improper to consider.
See Causey, 394 F.3d at 288.

The plaintiff, however, does

request that the Court provide her leave to amend her complaint
in the event that the Court finds the complaint factually
insufficient.

See Great Plains Trust Co. v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (“[O]ur cases
support the premise that granting leave to amend is especially

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appropriate . . . when the trial court has dismissed the
complaint for failure to state a claim . . . .

In view of the

consequences of dismissal on the compliant alone, and the pull to
decide cases on the merits rather than on the sufficiency of
pleadings, district courts often afford plaintiffs at least one
opportunity to cure pleading deficiencies before dismissing a
case, unless it is clear that the defects are incurable or the
plaintiffs advise the court that they are unwilling or unable to
amend in a manner that will avoid dismissal.” (citations and
internal quotation marks omitted)).
Accordingly, IT IS ORDERED that the defendants' motions to
dismiss are DENIED in part as to the discrimination claims.

IT

IS FURTHER ORDERED that plaintiff is allowed leave, as requested,
to amend her pleading within ten days in accordance with this
order; failure to do so will result in dismissal of plaintiff's
retaliation claim.

New Orleans, Louisiana, August 7, 2013

____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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