Mays v. Board of Commissioners Port of New Orleans et al

Filing 26

ORDER granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim, as stated herein. FURTHER ORDERED that Plaintiff is granted leave to amend her complaint within 10 days of this Order, or by 3/27/2015. Signed by Judge Nannette Jolivette Brown on 3/18/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIM L. MAYS

CIVIL ACTION

VERSUS

CASE NO. 14-1014

BOARD OF COMMISSIONERS PORT OF NEW
ORLEANS, et al.

SECTION: “G”(3)

ORDER
Before the Court is Defendants Board of Commissioners, Port of New Orleans’ (the “Port”)
and Ryan Bylsma’s (“Bylsma”) (collectively, “Defendants”) “Rule 12(b)(6) Partial Motion to
Dismiss.”1 Having considered the motion, the memoranda in support and in opposition, the
complaint, and the applicable law, the Court will grant the motion in part, deny the motion in part,
and grant Plaintiff leave to amend her complaint within ten days of this Order.
I. Background
A.

Factual Background
According to the complaint, Plaintiff Kim Mays is an African-American female and veteran

of the United States Army who suffers from post-traumatic stress disorder (“PTSD”).2 She filed this
lawsuit against her employer, the Port, as well as against two Port employees: Ryan Bylsma
(“Bylsma”) and Armand Rodriguez (“Rodriguez”).3 She does not state in the complaint whether she
names Bylsma and Rodriguez in their individual and/or official capacities.
Plaintiff alleges that Defendants violated her rights pursuant to 42 U.S.C. §§ 1981, 1983, and

1

Rec. Doc. 8.

2

Rec. Doc. 1.

3

Armand Rodriguez is not a party to the pending motion.

1

1985; Title VII; the Americans with Disabilities Act (“ADA”); the Family and Medical Leave Act
(“FMLA”); and Louisiana state discrimination statutes. She additionally brings causes of action for
intentional infliction of emotional distress (“IIED”) and for conspiracy.
Specifically, Plaintiff alleges that in July 2011, an “inappropriate sexually oriented remark”
was made to her by Rodriguez. She states that she reported the incident to her immediate supervisor,
but claims that “the only actions taken by the Port’s management was [sic] to counsel Mr. Rodriguez
and request that he apologize.”4 Plaintiff next asserts that on November 23, 2013, Rodriguez sent
her “an inappropriate e-mail that was sexual in nature,” which she reported to Bylsma, who was her
supervisor at the time, as well as other individuals at the Port.5 According to the complaint, “[t]he
Port failed to remove Mr. Rodriguez from proximity to Ms. Mays in the workplace and failed to take
other immediate and appropriate corrective action because Mr. Rodriguez is Caucasian and Ms.
Mays is African-American.”6
Plaintiff contends that she sought medical treatment on December 4, 2013 for PTSD
exacerbated by a hostile work environment. According to the complaint, she was released to return
to work on December 23, 2013, and her physician “requested that the Port provide Ms. Mays with
a reasonable accommodation by allowing Ms. Mays to work from home or removing her harasser
[sic] from the workplace.”7 Plaintiff alleges that the Port failed to provide reasonable
accommodations, and also failed to designate her leave as FMLA leave.8
4

Id. at pp. 3–4.

5

Id. at p. 4.

6

Id.

7

Id. at p. 5.

8

Id.

2

Plaintiff additionally alleges in her complaint that she filed a charge with the EEOC on
December 4, 2013. She alleges that, in retaliation for filing that charge, the Port issued a “predeprivation notice recommendation for a non-disciplinary removal,” removed her name plate from
her office door, packed her personal items from her office, removed her name from the
organizational chart, and conspired to place her in a shared office.9 She asserts that the predeprivation notice was rescinded on January 16, 2014.10
B.

Procedural Background
Plaintiff filed the complaint in this matter on May 2, 2014.11 Defendants filed the pending

motion to dismiss for failure to state a claim on June 17, 2014.12 Plaintiff filed a memorandum in
opposition on June 30, 2014,13 and Defendants filed a memorandum in reply on July 24, 2014.14
II. Parties’ Arguments
A.

Defendants’ Arguments in Support of Partial Dismissal
Defendants first contend that Plaintiff has not and cannot state a claim upon which relief can

be granted for her Title VII, ADA, or state law discrimination claims against Bylsma.15 They argue
that individuals are not subject to liability under either Title VII or the ADA.16 Next, they aver that
9

Id. at p. 6.

10

Id.

11

Rec. Doc. 1.

12

Rec. Doc. 8.

13

Rec. Doc. 13.

14

Rec. Doc. 17.

15

Rec. Doc. 8-1 at p. 4.

16
Id. (citing Ackel v. Nat’l Communications, 339 F.3d 376, 381, n. 1; Franklin v. City of Slidell, 936 F.Supp.2d
691, 703 (E.D. La. 2013)).

3

Louisiana’s Employment Discrimination Statute prohibits intentional discrimination by employers,
but Bylsma was not Plaintiff’s employer within the meaning of the statute.17 Defendants also argue
that Plaintiff’s claim arising under Louisiana Revised Statute § 51:2231, which “creates the
Louisiana Human Rights Commission as a basis for relief,” should be dismissed against Bylsma
because “this cause of action cannot be brought against individual employees.”18
Next, Defendants seek partial dismissal of Plaintiff’s § 1983, conspiracy and IIED claims
against both the Port and Bylsma. To succeed on a § 1983 claim against the Port, according to
Defendants, Plaintiff must prove (1) a policymaker; (2) an official policy; and (3) a violation of
constitutional rights whose moving force is the policy or custom.19 Here, Defendants aver, Plaintiff
has failed to allege “any official policy or widespread custom, the purpose of which was to (and
actually did) deprive her of her constitutional rights.”20 Defendants do not present any arguments
with respect to whether Plaintiff states a viable § 1983 claim against Bylsma.
Next, Defendants argue that Plaintiff makes only a conclusory allegation of a conspiracy, but
that she fails to allege the nature of the alleged conspiracy or “specifically demonstrate with material
facts that the defendants reached an agreement” to deprive her of her rights.21 Also, Defendants
contend that Plaintiff’s IIED claim must be dismissed because she fails to allege any conduct that

17

Id. at p. 5 (citing La. Rev. Stat. § 23:301) (citing Dejoie v. Medley, 41,333 (La. App. 2 Cir. 12/20/06); 945
So.2d 968).
18

Id. at pp. 6–7 (citing Jones v. GeoEngineers, Inc., No. 10-232, 2011 WL 1347989 at *5 (M.D. La. Apr. 8,

19

Id. at p. 7 (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 688-89 (1978)).

20

Id. at p. 9.

21

Id. at pp. 9–10.

2011)).

4

would rise to the level of “outrageous conduct.”22 Defendants additionally seek dismissal of
Plaintiff’s request for punitive damages because, they contend, political subdivisions of the state
cannot be subject to such damages, and the Port is a political subdivision of the state.23 Again,
Defendants do not make any arguments with respect to whether Plaintiff may obtain punitive
damages from Bylsma. Finally, Defendants argue that Plaintiff has failed to exhaust administrative
remedies with respect to her Title VII and ADA claims because she has not alleged receipt of a
right-to-sue notice from the EEOC with respect to any of her claims.24
B.

Plaintiff’s Arguments in Opposition to Partial Dismissal
Plaintiff argues first that Defendants offer no argument as to why her § 1983 claims against

Bylsma should be dismissed, and that her complaint “clearly states that the Port management, those
in policymaking positions, failed to take appropriate action.”25 She contends that:
The failure of the entire management team to take appropriate action is indicative of
a moving force engaged in a widespread practice and custom of maintaining a policy
designed to deprive Ms. Mays of her rights pursuant to Title VII, the FMLA, the
ADA, and the United States Constitution’s Fourteenth Amendment right to due
process.26
With respect to her conspiracy claim, Plaintiff states that her complaint “is very clear and
precise,” and that “[h]er claim identifies her supervisor, Ryan Bylsma, the Port’s Administrative
Director, Cynthia Swain, Mr. Armand Rodriguez’s immediate supervisor, Richard Bush and even

22

Id. at p. 17.

23

Id. at p. 10.

24

Id. (citing Garret v. City of Houston, 102 Fed. App’x 863, 864 (5th Cir. 2004)).

25

Rec. Doc. 13 at p. 2. The Court notes that only the Port, Bylsma, and Rodriguez are party defendants in this

26

Id.

action.

5

Mr. Bush’s supervisor, Jerry Knox.”27 Turning to the issue of punitive damages, Plaintiff states that
Defendants seek dismissal of her claims for punitive damages against the Port, but that “Defendants
do not argue that Ms. Mays’ other punitive damages claims must be dismissed. Consequently, those
claims must be allowed to go forward.”28
Plaintiff next argues that she has stated a viable IIED claim because:
[t]he conduct of defendants was extreme in that they refused to take appropriate
action notwithstanding the fact they had notice from Ms. Mays’ mental healthcare
provider that Ms. Mays’ [sic] was suffering from mental health problems that were
‘markedly worsened’ by occurrences in the workplace.29
Plaintiff argues that Defendants knew, or should have known, that their failure to take appropriate
action would result in her “experiencing extreme emotional distress.”30 Finally, Plaintiff argues that
she has filed EEOC charges in connection with her Title VII and ADA claims, but she concedes that
she has not received a right-to-sue letter with respect to any of them.31 She cites Hilliard v. Parish32
to support her argument that “failure to receive a Right to Sue letter does not destroy this Court’s
jurisdiction.”33
C.

Defendants’ Arguments in Further Support
Defendants state that Plaintiff failed to address or oppose their assertion that the Title VII,
27

Id. at p. 3. The Court notes that only the Port, Bylsma, and Rodriguez are party defendants in this action.
Additionally, Plaintiff does not state whether the individuals identified above were acting in their official or individual
capacities.
28

Id. Plaintiff does not identify the “other punitive damages claims” to which she refers.

29

Id.

30

Id.

31

Id. at p. 4.

32

Hilliard v. Parish, 991 F.Supp.2d 769 (E.D. La. 2014) (Milazzo, J.).

33

Id.

6

ADA, and state law claims against Bylsma are not cognizable and should therefore be dismissed.34
Defendants reaver that Title VII and ADA claims are not cognizable against an individual, and that
state law discrimination claims cannot be asserted against individuals who are not employers.35
Next, with respect to her § 1983 claim against the Port, Defendants argue that Plaintiff has
failed to identify an official policy that has resulted in the violation of her constitutional rights.36
Defendants contend that Plaintiff’s allegation that the actions at issue were of the “entire
management team” and were “indicative of a moving force engaged in a widespread practice and
custom” were not included in the complaint.37 These allegations, according to Defendants, are
conclusory and devoid of specific facts.38 Again, Defendants do not address whether Plaintiff has
stated a viable § 1983 claim against Bylsma.
Turning to Plaintiff’s conspiracy claim, Defendants aver that merely identifying the alleged
conspirators does not immunize a conspiracy claim, which must allege with particularity and
specifically demonstrate with material facts that the defendants reached an agreement to deprive the
plaintiff of her rights.39 Because Plaintiff makes no specific allegation regarding the nature of the
alleged conspiracy or alleged agreement, Defendants argue, her conspiracy claim must be
dismissed.40

34

Rec. Doc. 17 at p. 1.

35

Id.

36

Id. at pp. 2–3.

37

Id. at p. 3.

38

Id.

39

Id. at p. 3 (citing Rouse v. Benson, 193 F.3d 936, 943 (8th Cir. 1999)).

40

Id.

7

Defendants next argue that Plaintiff is not entitled to punitive damages under any statute
because the Port, as a political subdivision, cannot be subjected to punitive damages.41 Moreover,
Defendants reaver that under Lousisiana law, a plaintiff has no cause of action for punitive damages
except where authorized by statute, and that no such statute applies here.42 According to
Defendants, Plaintiff has failed to allege “outrageous conduct,” and her IIED claim should therefore
be dismissed.43 Finally, with respect to Plaintiff’s Title VII and ADA claims, Defendants assert that
here, unlike in Hilliard, Mays has not received an EEOC right-to-sue letter at any time or for any
of her claims.44
III. Law and Analysis
A.

Standard on a Rule 12(b)(6) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

failure to state a claim upon which relief can be granted.”45 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’”46 “Factual allegations must be enough to raise a right to relief above the
speculative level.”47 A claim is facially plausible when the plaintiff has pleaded facts that allow the

41

Id. at p. 4.

42

Id.

43

Id. at p. 5.

44

Id. at p. 6.

45

FED. R. CIV. P. 12(b)(6).

46

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

47

Twombly, 550 U.S. at 556.

8

court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”48
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant, and
all facts pleaded are taken as true.49 However, although required to accept all “well-pleaded facts”
as true, a court is not required to accept legal conclusions as true.50 “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”51 Similarly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”
will not suffice.52 The complaint need not contain detailed factual allegations, but it must offer more
than mere labels, legal conclusions, or formulaic recitations of the elements of a cause of action.53
That is, the complaint must offer more than an “unadorned, the defendant-unlawfully-harmed-me
accusation.”54 From the face of the complaint, there must be enough factual matter to raise a
reasonable expectation that discovery will reveal evidence as to each element of the asserted
claims.55 If factual allegations are insufficient to raise a right to relief above the speculative level,
or if it is apparent from the face of the complaint that there is an “insuperable” bar to relief, the claim

48

Id. at 570.

49

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see also
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
50

Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).

51

Id. at 679.

52

Id. at 678.

53

Id.

54

Id.

55

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

9

must be dismissed.56
B.

Analysis
1.

Plaintiff’s Title VII, ADA, and State Law Claims against Bylsma

Defendants move to dismiss Plaintiff’s Title VII, ADA, and state law claims against Bylsma,
arguing that individual employees cannot be held liable under these causes of action. Plaintiff does
not appear to oppose dismissal of these claims against Bylsma in his individual capacity.57 District
Courts may grant an unopposed motion as long as the motion has merit.58
Title VII of the Civil Rights Act, as amended, prohibits an employer from discriminating
against an individual on the basis of race, color, sex, national origin, or religion with respect to
hiring, discharge, compensation, promotion, classification, training, apprenticeship, referral for
employment, or other terms, conditions, and privileges of employment.59 Similarly, the ADA
prohibits discriminatory conduct by a “covered entity,” which is defined to include employers,
employment agencies, labor organizations, and joint labor-management committees.60 Under both
Title VII and the ADA, an “employer” is “a person engaged in an industry affecting commerce who
has fifteen or more employees ... and any agent of such person, ...”61 This definition precisely

56

Moore v. Metropolitan Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010)
(Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492 F.3d 325, 328 n. 9 (5th Cir. 2007).
57

The Court notes that Plaintiff has not addressed any of these claims in her memorandum in opposition to the
pending motion, nor has she requested leave from the Court to file any additional briefing in this matter or to amend her
complaint.
58

See Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001).

59

42 U.S.C. § 2000(e) et seq. (emphasis added).

60

42 U.S.C. § 12112(a); § 12111(2).

61
Id. § 12111(5)(A); see Roman–Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 51 (1st Cir.2011)
(citing 42 U.S.C. § 2000e(b)).

10

mirrors the definition of an employer under Title VII.62
The Fifth Circuit has consistently held that there is no individual liability for employees
under Title VII.63 “While Title VII’s definition of the term employer includes “any agent” of an
employer, Congress’s purpose was merely to import respondeat superior liability into Title VII.”64
Thus, an employee or supervisor faces Title VII liability solely in his official capacity.65 Because
an official-capacity suit against a supervisor or other individual is actually a suit against the
employing corporation,66 a plaintiff may not maintain a Title VII action against both an employer
and its agent in an official capacity.67 Therefore, as long as the corporate employer is named as a
defendant, individual employees cannot be liable to a plaintiff in either their personal or official
capacities.68 Other courts in this District have recently concluded that the considerations precluding
individual liability under Title VII apply with equal force in ADA actions.69 Accordingly, the Court
62

See Roman–Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 51 (1st Cir. 2011) (citing 42 U.S.C. §

2000e(b)).
63

Id. at 381, n. 1 (citing Smith v. Amedisys Inc., 298 F.3d 434, 448-49 (5th Cir. 2002) (“This circuit has held
that there is no individual liability for employees under Title VII.”)).
64

See Smith, 298 F.3d at 448 (citing Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir.1999))

65

See Dixon v. Primary Health Servs. Ctr., No.10–1490, 2011 WL 1326841, at *2 (W.D.La. Mar. 3, 2011)
(citing Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990) (“Only when a public official is working in an official
capacity can that official be said to be an “agent” of the government.”))
66

Indest, 164 F.3d at 262.

67

Smith, 298 F.3d at 449.

68

Id.

69

See Lefort v. Lafourche Parish Fire Prot. Dist. No. 3, No. 14-672, 2014 WL 3893312 (E.D. La. Aug. 8, 2014)
(Vance, J.); Franklin v. City of Slidell, 936 F.Supp.2d 691, 703 (E.D.La. 2013) (Barbier, J.) (“[T]he ADA definition
of ‘employer’ mirrors the Title VII definition. Although the Fifth Circuit has not directly addressed the question of
whether an employer's agent or employee may be held liable under the ADA, this Court recently concluded that in light
of (a) the similarities between the definition of “employer” in Title VII and the ADA, (b) the similar purposes of the two
statutes, (c) the Fifth Circuit’s consistent holdings that individuals cannot be held liable under Title VII in either their
individual or official capacities, and (d) the weight of authority outside of the Fifth Circuit, individuals are not subject
to liability under Title I of the ADA. Thus, to the extent that Plaintiff is asserting claims against the Employee

11

finds that Bylsma may not be held liable in his personal capacity under either Title VII or the ADA.
Moreover, since Plaintiff is suing the Port for discrimination under both Title VII and the ADA, she
cannot also maintain an action against Bylsma in his official capacity. The Court therefore dismisses
Plaintiff’s Title VII and ADA claims against Bylsma in both his individual and official capacities.
b.

State Law Claims

Plaintiff appears to claim that Bylsma violated Louisiana revised statutes § 23:1006 – which
was repealed in 1997 – and 51:2231.70 To the extent that Plaintiff seeks to bring a claim against
Bylsma under Louisiana’s current employment discrimination statute, La. Rev. Stat. § 23:301, the
Court finds that such a claim must be dismissed. Although section 23:301 prohibits intentional
discrimination in employment by employers, the statute defines “employer” as:
a person, association, legal or commercial entity, the state, or any state agency,
board, commission, or political subdivision of the state receiving services from an
employee and, in return, giving compensation of any kind to an employee. The
provisions of this Chapter shall apply only to an employer who employs twenty or
more employees within this state for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year.
Similarly, Louisiana Revised Statute 51:2231 provides for liability only against employers, and
does not provide a cause of action against supervisors in their individual capacities.71 Stated
differently, for purposes of employment discrimination cases “employer” has been specifically
defined, and to satisfy that definition one must (1) receive services from the employee and in return
give compensation to that employee, and (2) meet the requisite number of employees prescribed by

Defendants under the ADA, the Court finds that they are not legally cognizable.”).
70

Rec. Doc. 1 at ¶ 2.

71

See Jones v. GeoEngineers, Inc., 2011 WL 1347989, at *5 (M.D. La. Apr. 8, 2011) (listing cases).

12

statute.72 Plaintiff has not alleged that Bylsma paid her wages or that he had employees of any
number; in fact, Plaintiff has alleged solely that Bylsma is or was a supervisor employed by the
Port.73 He therefore does not fit the definition of “employer” set forth under either statute, and
therefore Plaintiff’s claims against him pursuant to the Louisiana employment discrimination
statutes, must be dismissed.
2.

Plaintiff’s Title VII and ADA Claims against the Port

Defendants argue that Plaintiff’s Title VII and ADA claims against the Port should be
dismissed because she has not received a right-to-sue letter from the EEOC, and has therefore failed
to exhaust administrative remedies prior to filing this lawsuit.74 In response, Plaintiff concedes that
she has not received a right-to-sue notice from the EEOC, though she has filed charges that
“encompass all Ms. Mays other Title VII and ADA claims.”75
The Fifth Circuit has instructed that receipt of a right-to-sue letter is required in order to
bring an action under the ADA or Title VII in federal district court.76 The ADA incorporates by
reference the procedures applicable to actions under Title VII, 42 U.S.C. § 2000e, which provides:
The powers, remedies, and procedures set forth in 2000e–4, 2000e–5, 2000e–6, and
2000e–9 of this title shall be the powers, remedies, and procedures this subchapter
provides to the Commission, to the Attorney General, or to any person alleging
discrimination on the basis of disability in violation of any provision of this
subchapter.77

72

Dubois v. Cetco Energy Servs., Co. LLC, 14-2396, 2015 WL 569854, at *4 (W.D. La. Feb. 9, 2015).

73

Rec. Doc. 1 at p. 4.

74

Rec. Doc. 8-1 at p. 18.

75

Rec. Doc. 13 at p. 4.

76

Dao v. Auchan Hypermarket, 96 F.3d 787, 788–89 (5th Cir. 1996).

77

42 U.S.C. § 12117(a).

13

Section 2000e–5(e)(1) provides that, before a plaintiff can commence a civil action under Title VII
in federal court, she must file a timely charge with the EEOC, or with a state or local agency with
authority to grant or seek relief from the alleged unlawful employment practice.78 Moreover,
§ 2000e–5(f)(1) provides that a civil action must be commenced “within ninety days” after the
charging party has received a “right-to-sue” letter from the EEOC or state or local agency.79
In her complaint, Plaintiff alleges that “[b]ecause of the hostile work environment created
by the Port’s failure to take immediate and appropriate corrective action, Ms. Mays filed a charge
of discrimination with the [EEOC] on December 4, 2013.”80 Plaintiff attaches to her memorandum
in opposition a Louisiana Commission on Human Rights “Charge of Discrimination” form dated
February 11, 201481 and an EEOC intake questionnaire dated April 9, 2014.82 Notwithstanding the
discrepancies between the date alleged in the complaint and those attached to the memorandum,
Plaintiff does not allege that she has received a right-to-sue letter from the EEOC as to any of her
claims. In fact, she expressly states that she has not received a right-to-sue letter.83
Plaintiff’s reliance on Hilliard v. Parish84 does not change this result. In that case, another

78

42 U.S.C. § 2000e–5(e)(1); see, e.g., Cruce v. Brazosport Independent School Dist., 703 F.2d 862, 863 (5th
Cir. 1983) (although filing of EEOC charge is not a jurisdictional prerequisite, it “is a precondition to filing suit in
district court”).
79

42 U.S.C. § 2000e–5(f)(1); see Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 120 (5th Cir. 1980).

80

Rec. Doc. 1 at p. 5.

81

Rec. Doc. 13-1 at p. 1.

82

Id. at pp. 2–5.

83

Rec. Doc. 13 at p. 4. Plaintiff has never requested leave to file any supplemental briefing with this Court or
otherwise notified the Court that she has received a right-to-sue letter subsequent to filing her memorandum in opposition
to the pending motion.
84

Hilliard v. Parish, 991 F.Supp.2d 769 (E.D. La. 2014) (Milazzo, J.).

14

court in this District determined that receipt of a right-to-sue letter subsequent to the commencement
of a Title VII action, but while the action was pending, cures the initial failure to exhaust
administrative remedies. Here, in contrast, Plaintiff has not alleged that she has received a right to
sue letter at all, either before or after filing this lawsuit. Since Plaintiff has apparently not received
a right-to-sue letter from the EEOC, she has not exhausted administrative remedies prior to bringing
this lawsuit, and her Title VII and ADA claims should be dismissed.
Dismissal is a harsh remedy, however, and the Court is cognizant of the Fifth Circuit’s
instruction that a motion to dismiss under Rule 12(b)(6) “is viewed with disfavor and is rarely
granted.”85 Short of granting a motion to dismiss, a court may grant a plaintiff leave to amend her
complaint.86 Accordingly, the Court will grant Plaintiff leave to amend her complaint, if she chooses
to do so, to sufficiently allege her Title VII and ADA claims against the Port, including whether she
has exhausted administrative remedies with respect to those claims.
3.

Plaintiff’s Claim for Intentional Infliction of Emotional Distress

An IIED claim requires a showing that: (1) the defendant’s conduct was extreme and
outrageous; (2) the plaintiff’s emotional distress was severe; and (3) the defendant desired to inflict
severe emotional distress or knew that severe emotional distress would be certain or substantially
likely to result from his conduct.87 A claim for IIED requires a plaintiff to allege extreme and
outrageous conduct.88 “The conduct must be so outrageous in character, and so extreme in degree,
85

Beanal v. Freeport-McMoran, Inc, 197 F.3d 161, 164 (5th Cir. 1999).

86

See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006) (“This standard ‘evinces a bias in favor
of granting leave to amend. The policy of the Federal Rules is to permit liberal amendment.’”) (quoting Dussouy v. Gulf
Coast Inv. Corp., 660 F.2d 594, 597–98 (5th Cir. 1981)).
87

88

McCoy v. City of Shreveport, 492 F.3d 551, 563 (5th Cir. 2007).
White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).

15

as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community.”89 “Merely tortious or illegal conduct does not rise to the level
of extreme and outrageous.”90
Although activity in the Louisiana workplace environment can give rise to a cause of action
for IIED, “this state’s jurisprudence has limited the cause of action to cases which involve a pattern
of deliberate, repeated harassment over a period of time.”91 The Louisiana Supreme Court described
the type of conduct that could give rise to a meritorious claim of intentional infliction of emotional
distress in White v. Monsanto Co.:
The conduct must be so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community. Liability does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must
necessarily be expected to be hardened to a certain amount of rough language, and
to occasional acts that are definitely inconsiderate and unkind. Not every verbal
encounter may be converted into a tort; on the contrary, “some safety valve must be
left through which irascible tempers may blow off relatively harmless steam.”92
Here, Plaintiff alleges that Defendants caused her severe emotional distress “in that they
refused to take appropriate action notwithstanding the fact they [sic] had notice from Ms. Mays’
mental healthcare provider that Ms. Mays’ was [sic] suffering from mental health problems that
were ‘markedly worsened’ by occurrences in the workplace.”93 As a matter of law, none of the facts
alleged by Plaintiff rise to the level of outrageous conduct necessary to recover for a claim for IIED.

89

Id.

90

W.T.A. v. M.Y., 2010-839 (La. App. 3 Cir. 3/9/11), 58 So. 3d 612, 616.

91

King v. Bryant, 2001–1379, pp. 3–4 (La.App. 3 Cir. 7/10/02); 822 So.2d 214, 217.

92

585 So.2d at 1209 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).

93

Rec. Doc. 13 at p. 3.

16

Even construing the allegations in the complaint as true, Plaintiff has not alleged any facts that the
two instances of alleged sexual harassment which occurred more than two years apart rise beyond
“insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”94 Moreover,
Plaintiff nowhere alleges facts suggesting that the Defendants intended to inflict severe emotional
distress or could have foreseen that such distress would result. Thus, Plaintiff has failed to allege at
least two of three elements to state a claim for IIED.95 Considering that dismissal is a harsh remedy,
the Court will grant Plaintiff leave to amend her complaint, if she chooses to do so, to sufficiently
allege her IIED claims against both the Port and Bylsma.
4.

Plaintiff’s Conspiracy Claim

Plaintiff alleges that the “discriminatory and complained of acts of defendants constitute a
conspiracy to deprive Ms. Mays of her rights and privileges in violation of 42 U.S.C. §§ 1981 and
1985.”96 Section 1985(3) provides, in pertinent part:
If two or more persons in any State or Territory conspire ... for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws; ... or to
injure any citizen in person or property on account of such support or advocacy; ...
if one or more persons engaged therein do, or cause to be done, any act in
furtherance of the object of such conspiracy, whereby another is injured in his person
or property, or deprived of having and exercising any right or privilege of a citizen
of the United States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation, against any one or
more of the conspirators.97
In Griffin v. Breckenridge, the Supreme Court held that § 1985(3) has no state action

94

See White, 585 So.2d at 1209.

95

See Hammond, 574 So. 2d at 525.

96

Rec. Doc. 1 at p. 6.

97

42 U.S.C. § 1985.

17

requirement, and thus reaches private conspiracies.98 In order to prove a private conspiracy in
violation of § 1985(3), a plaintiff must show that (1) some racial (or perhaps otherwise class-based,
invidiously discriminatory) animus lay behind the conspirators’ action, and (2) the conspiracy aimed
at interfering with federal rights that are protected against private, as well as official,
encroachment.99 Plaintiff alleges that Defendants were motivated by her race when they allegedly
conspired to deprive her of her civil rights.100 However, the operative facts of an alleged conspiracy
under § 1985(3) must be pled with specificity; conclusory allegations such as those present here
lack the requisite specificity to support a conspiracy claim.101 Plaintiff has therefore failed to state
a conspiracy claim upon which relief may be granted. Again, the Court will grant Plaintiff leave to
amend her complaint, if she chooses to do so, to sufficiently allege her conspiracy claim against the
Port and Bylsma.102
5.

Plaintiff’s Claims under 42 U.S.C. § 1983

In Monell v. Department of Social Services, the United States Supreme Court held that
municipalities and municipal officials sued in an official capacity may be held liable under § 1983.103

98

403 U.S. 88 (1971).

99

Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 268 (1993); Great Am. Fed. Sav. & Loan Ass’n
v. Novotny, 442 U.S. 366 (1979) (section 1985(3) provides “a civil cause of action when some otherwise defined federal
right ... is breached by a conspiracy in the manner defined”).
100

See Rec. Doc. 1 at ¶ XVIII.

101

The Court “do[es] not accept as true conclusory allegations, unwarranted factual inferences, or legal
conclusions.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005); Priester v. Lowndes Cnty., 354 F.3d 414, 420
(5th Cir. 2004) (“Allegations that are merely conclusory, without reference to specific facts, will not suffice.”).
102

See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006) (“This standard ‘evinces a bias in
favor of granting leave to amend. The policy of the Federal Rules is to permit liberal amendment.’”) (quoting Dussouy
v. Gulf Coast Inv. Corp., 660 F.2d 594, 597–98 (5th Cir. 1981)).
103

Monell v. New York City Dept. Of Social Serv., 436 U.S. 658, 689 (1978).

18

To maintain a § 1983 claim against a municipality, a plaintiff must show that officials acted in
accordance with an official policy or custom.104 Thus, municipalities are not vicariously liable for
rights violations committed by their employees, but they are liable whenever “their official policies
cause their employees to violate another person’s constitutional rights.”105 The Fifth Circuit has
instructed that:
... it is not enough for a § 1983 plaintiff to identify conduct properly attributable to
the municipality. The plaintiff must also demonstrate that, through its deliberate
conduct, the municipality was the “moving force” behind the injury alleged. That is,
a plaintiff must show that the municipal action was taken with the requisite degree
of culpability and must demonstrate a direct causal link between the municipal action
and the deprivation of federal rights.106
Therefore, Plaintiff must show not only that her constitutional rights were violated, but that the Port
was the “moving force” behind her injury.107
A plaintiff asserting a section 1983 claim against a municipal official in his official capacity
or a section 1983 claim against a municipality “must plead facts showing that a policy or custom
existed, and that such custom or policy was the cause in fact or moving force behind a constitutional
violation.”108 The Fifth Circuit defines an “official policy” as:

104
James v. Texas Collin Cnty., 535 F.3d 365, 375 (5th Cir. 2008) (citing Monell v. Dep’t of Soc. Servs. of New
York City, 436 U.S. 658 (1978)).
105

City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 923 (1988); see also Beattie v. Madison County
Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001).
106

Brown, 117 S.Ct. at 1388.

107

See Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 167 (5th Cir. 2010) (“Municipal liability requires
deliberate action attributable to the municipality that is the direct cause of the alleged constitutional violation.”); see also
Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (“[M]unicipal liability ... requires proof of ... a policy
maker; an official policy; and a violation of constitutional rights whose moving force is the policy or custom.”); Jett v.
Dall. Indep. Sch. Dist., 7 F.3d 1241, 1243 (5th Cir.1993) (describing several ways to meet this burden).
108
McClure v. Biesenbach, 355 F. App’x 800, 803 (5th Cir. 2008) (citing Spiller v. City of Tex. City, Police
Dep't, 130 F.3d 162, 167 (5th Cir. 1997)).

19

1.

A policy statement, ordinance, regulation, or decision that is officially adopted and
promulgated by the government entity or by an official to whom the entity has
delegated policy-making authority; or

2.

A persistent, widespread practice of officials or employees which although not
authorized by officially adopted and promulgated policy is so common and
well-settled as to constitute a custom that fairly represents the entity’s policy.109

“[A] single decision may create municipal liability if that decision were made by a final policymaker
responsible for that activity.”110 “State law determines whether a particular individual is a county
or municipality final decision maker with respect to a certain sphere of activity.”111 However, the
Supreme Court has expressly prohibited the application of a heightened pleading standard to section
1983 claims against municipalities.112

A plaintiff need only comply with notice pleading

requirements by presenting a “short and plain statement of the claims showing that the pleader is
entitled to relief.”113 However, a “plaintiff may not infer a policy merely because harm resulted from
some interaction with a governmental entity.”114 “The description of a policy or custom and its
relationship to the underlying constitutional violation, moreover, cannot be conclusory; it must
contain specific facts.”115
Here, Plaintiff has failed to identify any official policy or custom that caused her alleged
injuries. Her conclusory allegations in her complaint that Defendants violated § 1983 by “refus[ing]
109

Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 289 (5th Cir .2002) (brackets and ellipses omitted).

110

Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir.1996) (internal quotations and citations omitted) (emphasis in

original).
111

Id.

112

Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993).

113

Id.

114

Colle v. Brazos Cnty., Tex., 981 F.2d 237, 245 (5th Cir. 1993).

115

Spiller, 130 F.3d at 167.

20

to process properly Ms. Mays’ prescription for medical leave”116 and by “demonstrat[ing] a
deliberate indifference to Ms. Mays’ constitutionally protected rights”117 fails to set forth facts
showing the existence of “a persistent, widespread practice of officials” that is “so common and
well-settled as to constitute a custom that fairly represents the entity’s policy.”118 However, Plaintiff
alleges in her opposition memorandum that “the entire management team failed to take appropriate
action”119 and that “their official policies cause their employees to violate another person’s
constitutional rights.”120 This, alone, is insufficient considering that Plaintiff does not allege facts
explaining how, or identifying which, official policy caused her alleged injuries. The Court finds that
Plaintiff has failed to state a claim upon which relief may be granted with respect to her § 1983
claims against both the Port and Bylsma.121 Again, the Court will grant Plaintiff leave to amend her
complaint, if she chooses to do so, to sufficiently allege her § 1983 claim against both the Port and
Bylsma.122
6.

Plaintiff’s Request for Punitive Damages

Defendants seek dismissal of Plaintiff’s request for punitive damages with respect to each

116

Rec. Doc. 1 at p. 9.

117

Id. at p. 10.

118

See Cozzo, 279 F.3d at 289–90.

119

Rec. Doc. 13 at p. 2.

120

City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 923 (1988); see also Beattie v. Madison County
Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001).
121

The Court notes that Defendants do not provide any argument with respect to Plaintiff’s § 1983 claim against

Bylsma.
122

See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006) (“This standard ‘evinces a bias in
favor of granting leave to amend. The policy of the Federal Rules is to permit liberal amendment.’”) (quoting Dussouy
v. Gulf Coast Inv. Corp., 660 F.2d 594, 597–98 (5th Cir. 1981)).

21

theory of relief. 42 U.S.C. § 1981 a(b)(1) authorizes punitive damages in discrimination cases, unless
the defendant is a government, government agency, or political subdivision of the state. Courts in
this circuit have determined that this statute shields a political subdivision from liability for punitive
damages under the ADA,123 § 1981,124 Title VII,125 and § 1983,126 and § 1985.127 Accordingly, the
Court grants the pending motion to dismiss Plaintiff’s request for punitive damages under these
theories from the Port.128 Additionally, for the reasons stated above, Bylsma cannot be held liable in
his individual or official capacities for a violation of Title VII or the ADA, and, accordingly, Plaintiff
cannot recover punitive damages from Bylsma under either theory. However, the Court notes that
neither Defendants nor Plaintiff addresses whether punitive damages may be recoverable against
Bylsma under either § 1981 or § 1985; accordingly, the Court will deny the pending motion with
respect to whether punitive damages are available as to those claims.
Plaintiff is additionally unable to recover punitive damages against either Defendant herein
under FMLA or Louisiana state law. FMLA sets forth the types of damages recoverable under 29
U.S.C. § 2617(a), creating liability for damages only for actual monetary losses.129 As such, FMLA

123

Liner v. Hosp. Serv. Dist. No. 1 of Jefferson Parish, 230 Fed. Appx. 361, 365 (5th Cir. 2007).

124

Id.

125

Oden v. Oktibbeha Cnty., Miss., 246 F.3d 458, 465–66 (5th Cir. 2001) (“[Title VII] precludes plaintiffs from
recovering punitive damages against governments, government agencies, and political subdivisions.”)
126

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

127

See Bell v. City of Milwaukee, 746 F.2d 1205, 1270–71 (7th Cir. 1984).

128

Plaintiff appears to concede that she is not entitled to punitive damages pursuant to Title VII, ADA, § 1981,
and § 1983. See Rec. Doc. 13 at p. 3.
129

29 U.S.C. § 2617(a); See also Oby v. Baton Rouge Marriott, 329 F. Supp .2d 772, 788 (M.D. La. 2004)

22

does not provide for recovery of punitive damages.130 Finally, Louisiana has a general public policy
against the award of punitive damages unless specifically provided for by statute.131 Louisiana
statutes permit punitive damages only for child pornography, drunk driving and sexual abuse of a
child.132 Plaintiff has not alleged that Defendants have committed any of these acts that would expose
them to liability for punitive damages under Louisiana law. Accordingly, Plaintiff’s request for
punitive damages against either Defendant under FMLA and Louisiana law is dismissed as a matter
of law.
V. Conclusion
Based on the foregoing, the Court has determined that Plaintiff has not and cannot state a
claim upon which relief may be granted against Bylsma under Title VII, the ADA, or state
discrimination statutes. Therefore, those claims are dismissed. Moreover, Plaintiff cannot recover
punitive damages from Bylsma in his official or individual capacity under those theories. Therefore,
those punitive damages claims are dismissed as well. Additionally, Plaintiff’s request for punitive
damages for Defendants’ alleged FMLA violation is also dismissed. Also, the Court dismisses with
prejudice Plaintiff’s claim for punitive damages against the Port under all theories of recovery.
Dismissal is a harsh remedy, however, and the Court is cognizant of the Fifth Circuit’s
instruction that a motion to dismiss under Rule 12(b)(6) “is viewed with disfavor and is rarely
granted.”133 Short of granting a motion to dismiss, a court may grant a plaintiff leave to amend her
130

Oby, 329 F. Supp.2d 772; accord Farrell v. Tri–County Metropolitan Transp. Dist. of Oregon, 530 F.3d
1023, 1025 (9th Cir. 2008).
131

Ross v. Conoco, Inc., 828 So.2d 546, 555 (La. 2002) (citing Ricard v. State, 390 So.2d 882 (La. 1980);
Killebrew v. Abbott Labs., 359 So.2d 1275 (La. 1978)).
132

See La. Civ. Code arts. 2315.3; 2315.4; 2315.7 (2011).

133

Beanal v. Freeport-McMoran, Inc, 197 F.3d 161, 164 (5th Cir. 1999).

23

complaint.134 Accordingly, the Court will grant Plaintiff leave to amend her complaint, if she chooses
to do so, to sufficiently allege her Title VII and ADA claims against the Port; her § 1983 claim
against Bylsma; her request for punitive damages against Bylsma under § 1981, § 1983, and/or
§ 1985; and her conspiracy and IIED claims against both the Port and Bylsma. If Plaintiff chooses
to amend her complaint, she is ordered to specifically allege the capacity in which she is suing both
Bylsma and Rodriguez. If she fails to do so, or if she fails to provide sufficient factual support for
each element of each allegation, then the Court will dismiss with prejudice the foregoing claims.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ “Rule 12(b)(6) Partial Motion to Dismiss”135
is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the following claims are DISMISSED WITH
PREJUDICE: (1) Plaintiff’s Title VII, ADA, and state discrimination law claims against Defendant
Bylsma; (2) Plaintiff’s request for punitive damages against the Port; and (3) Plaintiff’s request for
punitive damages against Bylsma for violations of Title VII, ADA, state discrimination laws, and
FMLA.
IT IS FURTHER ORDERED that Plaintiff is granted leave to amend her complaint within
ten days of this Order, or by March 27, 2015.
NEW ORLEANS, LOUISIANA, this18th day of March, 2015.
____
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
134

See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006) (quoting Dussouy v. Gulf Coast Inv.
Corp., 660 F.2d 594, 597–98 (5th Cir. 1981)).
135

Rec. Doc. 8.

24