Johnson v. Mixon et al
Filing
30
ORDER & REASONS granting in part & denying in part 25 Motion to Dismiss for Failure to State a Claim. The defendant's motion is GRANTED as to the claim of discrimination under the LEDL, & DENIED as to the retaliation claim. Signed by Judge Martin L.C. Feldman on 10/8/2013. (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 is State Farm Fire and Casualty Company's
second Rule 12(b)(6) motions to dismiss.
For the reasons that
follow, the motion is GRANTED in part and DENIED in part.
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.
At the time, 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
African-American and the other two were Caucasian.
licensed staff member was Latino.
The one non-
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
1
office in 2000.
Mr. Mixon allegedly instituted changes within the
office, including assigning customers to agents based on race
instead of the alphabet, which had been the practice before Mr.
Mixon's arrival.
Mr. Mixon also replaced minority staff (both an
African-American and Latino staff member) with Caucasian employees
after the minority staff members resigned.
When the Latino staff
member resigned, Mr. Mixon apparently said that he did not want to
expand "that business."
In 2010, Mr. Mixon also relocated 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 the remarks "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 the 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
2
lawsuit on January 30, 2013.1
As a result, she alleges that State
Farm retaliated against her by denying her commissions, prohibiting
her from selling policies, and delaying the approval of her
Licensed Staff Agreement (LSA).
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 moved to dismiss under Rule 12(b)(6)
for failure to state a claim upon which relief can be granted.
On
August 7, 2013, the Court denied that motion, finding that Johnson
had sufficiently alleged discrimination, and that although her
factual allegations were insufficient to support a retaliation
claim, she deserved leave to file an amended complaint. On August,
9, 2013, plaintiff filed an amended complaint, and on August 23,
2013, State Farm again moved to dismiss for failure to state a
claim.
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
1
Plaintiff mistakenly alleges that she sent the draft
complaint on January 30, 2012; however, it is clear from the record
that plaintiff probably sent the draft on January 30, 2013.
3
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 conclusory allegations in the complaint as true.
Kaiser, 677 F.2d at 1050.
Indeed, the Court must first identify
allegations that are conclusory and, thus, not entitled to the
assumption of truth.
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678-79
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
4
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.”).
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.
5
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).
II. Discussion
Defendant contends that plaintiff fails to state a claim upon
which relief can be granted with respect to her discrimination
claim under the Louisiana Employment Discrimination Law (LEDL), La.
R.S. 23:332, and her retaliation claim under 42 U.S.C. § 1981.
A.
State Farm contends that plaintiff cannot state a claim
against it for race discrimination under the LEDL, because it is
not an "employer" within the meaning of the law.
23:302(2).
See La. R.S.
Plaintiff concedes as much, therefore dismissal is
warranted.
B.
State Farm next contends that plaintiff fails to state a claim
of retaliation under § 1981 because she fails to sufficiently
allege a causal connection between a protected activity and an
adverse action.
The Court does not agree.
To state a retaliation claim under § 1981, a plaintiff must
6
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 v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
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).
employee's
informal
complaint
to
an
employer
may
"An
constitute
participation in a protected activity, provided that the complaint
is in opposition to conduct that is unlawful, and the employee
holds
a
good
unlawfulness."
faith,
reasonable
belief
of
the
conduct's
Clark v. Chickasaw Cnty., Miss., No. 09-192, 2010
WL 3724301, at *4 (N.D. Miss. Sept. 16, 2010).
Adverse employment
action includes any "materially adverse change in the terms and
conditions of employment," including reassignment to less desirable
positions.
Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53,
70-71 (2006).
Close temporal proximity between an employer's
knowledge of a protected activity and an adverse employment action
may be sufficient to establish causation.
See Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273-74 (2001); Haire v. Board of
Supervisors, 719 F.3d 356, 368 (5th Cir. 2013).
Finally, disparate
treatment of similarly situated employees may also demonstrate
7
unlawful retaliation.
Bryant v. Compass Grp. USA, Inc., 413 F.3d
471, 478 (5th Cir. 2005).
Plaintiff's amended complaint contains sufficient factual
references that, if accepted as true as they must be at this stage
of the case, state a claim to relief that is plausible on its face.
Iqbal, 556 U.S. at 678.
The amended complaint alleges that after
plaintiff sent State Farm a draft of her complaint on January 30,
2013, on February 13, 2013, State Farm refused to approve of her
Licensed Staff Agreement; that between February 1, 2013 and April
26, 2013, State Farm refused to pay her commissions; and that from
February 13, 2013 to April 26, 2013, State Farm did not allow her
to sell policies, but rather, allowed her only to answer the
phones.
See Breeden, 532 U.S. at 273-74.
Plaintiff also alleges
that although she was not allowed to sell policies while her LSA
awaited approval, in her over nineteen years of experience, State
Farm regularly allowed new employees to quote and write insurance
while approval of their appointments was pending.
F.3d at 478.
See Bryant, 413
Plaintiff has also submitted with her complaint a
copy of her LSA, and several emails between her employer, Benny
Archie, and a State Farm Agency Field Executive, Theresa Hollander,
discussing the delayed approval of her LSA.
288.
Causey, 394 F.3d at
Considering her complaint and the submitted documents,
plaintiff has sufficiently pled a protected activity, an adverse
employment action, and a causal link between the two.
8
McCoy, 492
F.3d at 556-57.
Plaintiff has therefore sufficiently stated a
claim for retaliation under § 1981.
Accordingly, IT IS ORDERED that the defendant's motion to
dismiss is GRANTED as to the claim of discrimination under the
LEDL, and DENIED as to the retaliation claim.
New Orleans, Louisiana, October 8, 2013
____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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