Hall v. Evans et al

Filing 13

ORDER granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 8 Motion to Dismiss for Lack of Jurisdiction. ORDERED that Plaintiff AMEND her complaint as to the claims brought via §§ 1983 and 1985 against Denise Evans in her individual capacity within thirty (30) days of the signing of this order. Defendant will then have the opportunity to answer or to move to dismiss those claims at that point. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BESSIE J. HALL

CIVIL ACTION

VERSUS

NO: 14-0801

DENISE EVANS, ET AL.

SECTION: "A" (3)
ORDER

The following motion is before the Court: Motion to Dismiss (Rec. Doc. 8) filed
by defendants Denise Evans and the Louisiana Department of Children and Family Services.
Plaintiff Bessie Hall, pro se, opposes the motion. The motion is before the Court on the briefs
without oral argument.
I.

BACKGROUND
Plaintiff Bessie Hall filed this action pro se alleging that the defendants terminated

her employment unjustly, discriminated against her on the basis of race and disability, did
not properly account for her leave under the Family Medical Leave Act (FMLA), and did not
otherwise properly account or compensate her for leave, back-pay, pay raises, or worker's
compensation. Plaintiff asserts claims under federal law seeking to recover any damages
available, break-downs of her leave accrual, reinstatement to her position and the
opportunity to apply for disability retirement, and readjusted payments, based on expected
raises, back-pay, and worker's compensation.1
The following factual allegations, accepted as true, are taken from Plaintiff's
Complaint. Plaintiff held a position as Social Services Analyst Supervisor with the Louisiana
Department of Children and Family Services ("the Department"). (Rec. Doc. 1; Comp. at 1

Plaintiff clarifies however in her Opposition to the Motion to Dismiss that the present
case "is not about civil service or worker's compensation." (Rec. Doc. 9; Pls. Opp. at 1, ¶3). Thus,
the Court does not address those claims.
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¶3). On July 13, 2012, Plaintiff sustained an injury while working that did not allow her to
return to work. Id. at 4. Plaintiff received a non-disciplinary notice of proposed removal on
August, 30, 2013, signed by Denise Evans, the proper authority for such matters. Id. Plaintiff
responded to this notice, but the Department subsequently notified her of its decision to
remove her effective September 25, 2013. Id. Plaintiff was similarly unsuccessful on appeal
and abandoned the related hearing upon being told that its scope was limited to the technical
application of the rule resulting in her removal–an issue Plaintiff does not dispute. Id.
Instead, Plaintiff lists several issues in both her response to the proposed notice of removal
and her written appeal of the decision to remove her that form the basis of her Complaint in
this case.
Two lines of argument appear in Plaintiff's pleadings: First, Plaintiff argues that the
Department failed to follow its own policies in finalizing her removal and that other
individuals who are similarly situated have been treated more favorably. She points to the
Department's notification that her removal was due to the exhaustion of FMLA leave, lack of
eligibility for new FMLA entitlement, continued disability that rendered her unable to
perform her duties, and the retention of fewer than eight hours of sick leave; Plaintiff
compares this to the cases of allegedly similarly-situated individuals who did not receive
notices of proposed removal. Id. at 3, 11. She also claims that she was not properly given
leave under the FMLA (which triggered the rule for her dismissal), alleges instances during
her employment in which she was told to treat white employees differently, and cites the
removal as extinguishing her opportunity to apply for disability retirement. Finally, Plaintiff
reports that the Department did not give her the opportunity to raise these issues in her
appeal hearing. Id. at 4. Second, Plaintiff contends that several individuals, including Denise
Evans, wanted to allow a separate, Caucasian supervisor to acquire the position which

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Plaintiff held. The implication appears to be that Denise Evans acted in her capacity as
Administrator to bring about that end, including through the use of means not applied to
others similarly situated.
Plaintiff filed the instant complaint pro se and in forma pauperis on April 9, 2014. No
trial date is set at this time. Via the instant motions the defendants seek to dismiss Plaintiff's
complaint in its entirety pursuant to Rule 12(b)(1) Rule 12(b)(6). Their specific arguments
are discussed below.
II.

IDENTIFICATION OF CLAIMS
In determining the claims at issue, the Court is guided by the principle that pro se

pleadings must be given the benefit of liberal construction. Cooper v. Sheriff of Lubbock
Cnty., 929 F.2d 1078, 1081 (5th Cir. 1991). At various points in the pleadings, Plaintiff
specifically mentions claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000(e) et seq., the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and the
Family Medical Leave Act, 29 U.S.C. § 2601 et seq. Plaintiff also alleges facts that implicate,
or appear to implicate, claims for violation of her due process and equal protection rights via
28 U.S.C. § 1983 as well as claims of conspiracy to violate her civil rights via 28 U.S.C. §
1985.
III.

STANDARD of REVIEW
A. Rule 12(b)(1) Standards
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides the vehicle by which a

party can challenge a court's subject matter jurisdiction to hear a particular issue. This
includes challenges asserting the doctrine of sovereign immunity to bar a claim. See 5B
Charles Alan Wright & Arthur Miller, Federal Practice and Procedure, § 1350 (2014);
Henley v. Simpson, 527 F. App'x. 303, 305 (5th Cir. 2013).

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B. Rule 12(b)(6) Standard
In the context of a motion to dismiss the Court must accept all factual allegations in
the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Lormand v.
US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v.
Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)). However, the foregoing tenet is
inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice. Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S. 544, 555 (2007)).
The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for relief. Gentilello v. Rege, 627
F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.
2008)). To avoid dismissal, a plaintiff must plead sufficient facts to “state a claim for relief
that is plausible on its face.” Id. (quoting Iqbal, 129 S. Ct. at 1949). “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.” Id. The Court
does not accept as true “conclusory allegations, unwarranted factual inferences, or legal
conclusions.” Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Legal
conclusions must be supported by factual allegations. Id. (quoting Iqbal, 129 S. Ct. at 1950).
IV. DISCUSSION
Defendants invoke state sovereign immunity as a bar to the Court's jurisdiction of
those claims falling under the Americans with Disabilities Act and the Family Medical Leave
Act. The Louisiana Department of Children and Family Services, as a branch of the state

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government, and Denise Evans in her official capacity, are entitled to state sovereign
immunity where applicable. See Oliver v. Univ. of Tex. Sys., 988 F.2d 1209 (5th Cir. 1993)
(unpublished) (citing United Carolina Bank v. Bd. of Regents of Stephen F. Austin Univ.,
665 F.2d 553 (5th Cir. 1982); Clay v. Tex. Women's Univ., 728 F.2d 714 (5th Cir. 1984)).2
To the extent that Plaintiff presents a claim under the Americans with Disabilities
Act, the Court agrees that such a claim falls under Title I of that statute, which addresses
discrimination in the context of employment. 42 U.S.C. § 12112. The Supreme Court has
made clear that Congress has not abrogated state sovereign immunity as to Title I of the
ADA, and thus those claims are barred. See Bd. of Trustees of the Univ. of Alabama v.
Garrett, 531 U.S. 356, 374 (2001). Additionally, Plaintiff presents a claim regarding her leave
under the Family Medical Leave Act "self-care" provision. 29 U.S.C. § 2612(a)(1)(D) (noting
the applicable condition as "a serious health condition that makes the employee unable to
perform the functions of the position of such employee"). Plaintiff's claims directly evidence
her need for leave stemming from her own injury, not that of a third party that would fall
under a different provision. The Supreme Court has also made clear that state sovereign
immunity acts to bar claims made under the "self-care" provision. See Coleman v. Ct. of
App., 132 S.Ct. 1327, 1332 (2012). The Court lacks jurisdiction to hear these claims.
The Ex Parte Young doctrine works to preserve one exception in the above analysis.
Plaintiff makes a demand for reinstatement in her position, arguing in part that incorrect
application of her FMLA leave triggered her removal. (Rec. Doc. 1; Comp. at 6). The law in
this Circuit regards the remedy of reinstatement as one of prospective, injunctive relief.

An official capacity suit is generally only another way of pleading a claim against the
entity of which the officer-defendant is an agent. Kentucy v. Graham, 473 U.S. 159, 165-66
(1985) (quoting Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658, 690 n.55)). Thus, the
claims against the individual State Defendants in their official capacities will be subject to the
same defenses and immunities as the State entities being sued. See id. at 166-67.
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Nelson v. Univ. of Texas at Dallas, 535 F.3d 318, 322 (5th Cir. 2008) (citing Warner v. Pecos
Cnty., 88 F.3d 341 (5th Cir. 1996)). When sought against a state actor in her official capacity,
Ex Parte Young properly applies. Nelson, 535 F.3d at 323-24 (holding that Ex Parte Young
applies to a claim for reinstatement under the "self-care" provision of the FMLA). Thus, the
Motion to Dismiss is DENIED as to the claim for reinstatement under the Family Medical
Leave Act against Denise Evans in her official capacity but is GRANTED as to all other claims
made under Title I of the ADA and the "self-care" provision of the FMLA.
Turning to the claims which the Court has identified under its "liberal construction"
of the pleadings, the Court also notes that it lacks subject matter jurisdiction as to those
claims brought via § 1983 and § 1985 against a state defendant. Will v. Mich. Dept. of State
Police, 491 U.S. 58, 64 (1989) (finding that state sovereign immunity applies to claims also
made via § 1983); see, Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (same as to
claims under § 1985); see, e.g., Early v. So. Univ. & Agr. & Mech. College Bd. of Sup'rs, 252
F. App'x. 698, 700 (5th Cir. 2007) (unpublished); FED. R. CIV. P. 12(h)(3) ("If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action."). Further, the Court also looks to well-settled law that the state, branches of the
state, and those sued in their official capacity do not qualify as "persons" for purposes of §
1983.3 See Adams v. Recov. Sch. Dist., 463 Fed. Appx. 297, 298 n.5 (5th Cir. 2012)

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Section 1983, entitled Civil Action for Deprivation of Rights, states:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C.A. § 1983 (2012) (emphasis added).
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(unpublished) (citing Will, 491 U.S. at 64); Menard v. Bd. of Trustees of Loyola Univ. of
New Orleans, No. Civ.A. 03-2199, 2004 WL 856641, at *5 (E.D. La. April 19, 2004) (citing
cases from several circuits for support that branches of the state are not "persons" for
purposes of § 1985). Thus, the Motion to Dismiss is GRANTED as to these claims against the
Department and Denise Evans in her official capacity. However, the Court retains
jurisdiction as to these same claims brought against Denise Evans in her individual capacity.
Moving beyond the matters that constitute a jurisdictional bar, the Court takes note
of Defendants' argument that Plaintiff has failed to exhaust her administrative remedies
regarding her race discrimination claim under Title VII. Taylor v. Books a Million, Inc., 296
F.3d 376, 379 (5th Cir. 2002) (noting that exhaustion is not a jurisdictional requirement)
(citing Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996)). Specifically, while
Defendants do not contest the timeliness of Plaintiff's action nor the sufficiency of her charge
(which contained allegations under both Title VII and the Americans with Disabilities Act),
Defendants note that the resulting notice of a right to sue letter failed to mention the Title
VII charge. (Rec. Doc. 12; Reply to Opp. at 2); Taylor, 296 F.3d at 379 (explaining that
"receiv[ing] a statutory notice of right to sue . . . 'is a precondition to filing suit in district
court'") (quoting Dao, 96 F.3d at 789)).
The Court however remains cognizant that the requirements of exhaustion, as they
are not jurisdictional demands, yield to the demands of equity and other exceptions,
including equitable modification and equitable tolling. See Pinkard v. Pullman-Standard, a
Div. of Pullman Inc., 678 F.2d 1211, 1218-19 (5th Cir. 1982) (equitable modification);
Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th Cir. 2002) (recognizing the
application of equitable doctrines). The Court also recognizes that a primary aim of the

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notice requirement in particular is "to provide a formal notification to the claimant that his
administrative remedies with the Commission have been exhausted." Beverly v. Lone Star
Lead Const. Corp., 437 F.2d 1136, 1140 (5th Cir. 1971). Finally, the Court observes that
several cases in this Circuit have refused to penalize a plaintiff for errors on the part of the
EEOC. See Stapper v. Texas Dept. of Human Resources, 470 F. Supp. 242, 245 (W.D. TX.
1979) (citing several cases which stand for the proposition that failure of the EEOC to
properly issue a right to sue letter will not be held against the plaintiff).
The EEOC charge at issue, clearly stating both Title VII and the Americans with
Disabilities Act as the bases of the allegations, carried the identification number of
461201302287. (Rec. Doc. 3, Comp. at 17). Pursuant to C.F.R. § 1601.28(a)(2),(d),(e), the
EEOC issued a right to sue notice that directly referenced and responded to "the above
charge," no. 461201302287, but only listed in the body of the notice Title I of the Americans
with Disabilities Act. (Rec. Doc. 9, Pl. Opp at 3).4 Read in context though, the EEOC's
issuance of the notice of right to sue and its admission that it would not be able to complete
administrative processing clearly relates to charge #461201302287 as a whole. As such, the
notice fulfilled its function as notification to the claimant that administrative remedies have
been exhausted. A clerical error on part of the EEOC will not be held to bar the Title VII
discrimination claim. Cf. Lambert v. Sperry Rand Corp., No. 19,631, 1974 WL 296, at *2
(W.D. LA. Nov. 8, 1974) ("The failure of the EEOC in this matter . . . was a technical failure to
comply with a statutory requirement and will not be held to deprive this plaintiff of a right of
action."). Thus, Defendants' motion to dismiss the Title VII claim for failure to exhaust

Although the Court recognizes that the scope of its review is limited to the pleadings, it
makes reference here to the EEOC notice of right to sue as the EEOC communications are
incorporated by reference in the Complaint (Comp. at 4), are integral to the Complaint, and are
known to the Plaintiff. Cf. Everson v. New York City Transit Auth., 216 F. Supp. 2d 71, 77 (E.D.
NY. 2002) (citations omitted).
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administrative remedies is DENIED.
Turning to that part of the motion which addresses a failure to state a claim, the
Court recognizes that at this point the Plaintiff only provides a bare outline of facts to state a
case against Denise Evans in her individual capacity. Plaintiff alleges that Denise Evans is
the proper authority to make removal decisions, that others similarly situated were treated
differently, and that this result arose from a plan crafted in part by Denise Evans. (Rec. Doc.
1; Comp. at 3-5). However, due to Plaintiff's pro se status, rather than dismissing those

claims at this early juncture, the Court will give Plaintiff the opportunity to amend her
complaint to specify and support her claims made against Denise Evans in her individual
capacity. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) ("Generally a district
court errs in dismissing a pro se complaint for failure to state a claim under Rule 12(b)(6)
without giving the plaintiff an opportunity to amend."). As a counterbalance though, the
Court is aware of Defendants' concern that Plaintiff's "pleading severely prejudices Ms.
Evans' ability to efficiently defend her rights and interest." (Rec. Doc. 8-2, Defs. Mem. in
Support of Motion to Dismiss, at 6). Due to this, counsel was able to provide only an initial
broad response to possible, unnamed claims against Evans in her individual capacity. Thus,

the Motion to Dismiss is DENIED WITHOUT PREJUDICE as to the claims coming
under § 1983 and § 1985 against Denise Evans in her individual capacity.
IV. CONCLUSION
In summary, the following are the claims that remain before the Court at this time:
the claim for race discrimination under Title VII, a claim against Denise Evans in her official
capacity seeking reinstatement of employment under the Family Medical Leave Act, and
claims against Denise Evans in her individual capacity for violation of Plaintiff's due process
and equal protection rights brought via § 1983, and for conspiracy to violate Plaintiff's equal
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protection rights under § 1985.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 8) filed by Defendants
is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to those
claims under Title I of the Americans with Disabilities Act and the FMLA, which are
DISMISSED WITH PREJUDICE, except that it is DENIED as to the claim for
reinstatement against Denise Evans in her official capacity under the FMLA. It is DENIED
as to the claim for race discrimination under Title VII. Finally, it is DENIED WITHOUT
PREJUDICE as to the claims against Denise Evans in her individual capacity for violation
of Plaintiff's equal protection and due process rights via § 1983 and for conspiracy to violate
Plaintiff's equal protection rights via § 1985.
IT IS FURTHER ORDERED that Plaintiff AMEND her complaint as to the claims
brought via §§ 1983 and 1985 against Denise Evans in her individual capacity within thirty
(30) days of the signing of this order. Defendant will then have the opportunity to answer or
to move to dismiss those claims at that point.

October 8, 2014

_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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