Difebbo-Kass v. Plaquemines Parish et al

Filing 31

ORDER AND REASONS granting IN PART Defendants' 3 , 23 Motions to Dismiss, Motions for Sanctions. Plaintiff's claims are DISMISSED WITH PREJUDICE. Defendants' request for sanctions is DENIED. Signed by Judge Jane Triche Milazzo. (ecm)

.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PHYLLIS DIFEBBO-KASS

CIVIL ACTION

VERSES

NO: 15-1388

PARISH OF PLAQUEMINES ET AL

SECTION: “H”(2)

ORDER AND REASONS
Before the Court are a Motion to Dismiss and for Sanctions filed by
Defendant Plaquemines Parish (Doc. 3) and a Motion to Dismiss and for
Sanctions filed by Defendants Ellen Barrios, Wanda Buras, Amos Cormier,
Mike Metcalf, William Nungesser, and Leo Palazzo (Doc. 23). For the following
reasons, the Motions are GRANTED IN PART.
BACKGROUND
Plaintiff’s suit arises from her termination as an employee of Defendant
Plaquemines Parish Government (the “Parish”).

Before her termination,

Plaintiff served as the Superintendent of Planning and Zoning for the Parish.
1

In this position, her responsibilities included administering and enforcing the
Parish’s zoning ordinances, reviewing permitting requirements associated
with zoning, and reviewing rezoning applications.

Her supervisor was

Defendant Leo Palazzo. After investigating a complaint that she was illegally
operating a trailer park on her personal property, the Parish terminated her
for violating the ordinances she was expected to implement and uphold as part
of her job.
Plaintiff appealed her termination to the state Civil Service Commission,
which, after a hearing, upheld the decision as for cause. She appealed that
decision to the Louisiana Court of Appeal for the Fourth Circuit, which also
affirmed the termination as for cause. Separately, Plaintiff filed charges of
disability retaliation with the Equal Employment Opportunity Commission
but did not sue within the 90 day deadline of receiving the right to sue notice.
Plaintiff now files this action asserting that her termination violates state and
federal race, gender, and age discrimination laws, the Family and Medical
Leave Act (“FMLA”), and 42 U.S.C. §1983. In addition to the Parish, she names
as Defendants Parish Presidents William Nungesser and Amos Cormier, her
supervisors Mike Metcalf and Leo Palazzo, Human Resources Manager for
Plaquemines Wanda Buras, and Civil Service Director Ellen Barrios (the
“Individual Defendants”). Defendants have filed the instant Motion to dismiss,
arguing that the Louisiana court’s finding that her termination was for cause
precludes this lawsuit. They have also moved for sanctions.

2

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts "to state a claim to relief that is plausible on its face."1 A claim is
"plausible on its face" when the pleaded facts allow the court to "[d]raw the
reasonable inference that the defendant is liable for the misconduct alleged."2
A court must accept the complaint's factual allegations as true and must "draw
all reasonable inferences in the plaintiff's favor."3

The Court need not,

however, accept as true legal conclusions couched as factual allegations.4
To be legally sufficient, a complaint must establish more than a "sheer
possibility" that the plaintiff's claims are true.5 "A pleading that offers 'labels
and conclusions' or 'a formulaic recitation of the elements of a cause of action'"
will not suffice.6

Rather, the complaint must contain enough factual

allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiffs' claim.7

Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)).
2 Id.
3 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
4 Iqbal, 556 U.S. at 667.
5 Id.
6 Id. at 678 (quoting Twombly, 550 U.S. at 555).
7 Lormand, 565 F.3d at 255–57.
1

3

LAW AND ANALYSIS
I. Motion to Dismiss
The Parish and the Individual Defendants have both filed motions to
dismiss arguing that Plaintiff’s claims are barred by the doctrines of issue
preclusion and claim preclusion. The Individual Defendants further allege
that their actions are protected by qualified immunity. The Court will first
consider Defendants’ issue preclusion arguments, as they are potentially
dispositive of both motions.
Defendants argue that the doctrine of issue preclusion serves to bar
Plaintiff’s claims. “Under issue preclusion . . . once a court decides an issue of
fact or law necessary to its judgment, that decision precludes relitigation of the
same issue in a different cause of action between the same parties.”8 The
criteria used to determine whether a party is precluded from relitigating an
issue are: (1) whether the issue at stake is identical to the one involved in the
prior litigation, (2) whether the issue was actually litigated, and (3) whether
the determination of the issues was necessary to the judgment in the prior
litigation.9
The Civil Service Commission decided, and the Louisiana Fourth Circuit
affirmed, that Plaintiff’s termination was for cause. The Fourth Circuit stated
that “the discipline imposed upon Ms. Kass was based on legal cause and was

8

Henkelmann v. Whiskey Island Pres., LLC, 145 So. 3d 465, 470 (La. App. 1 Cir.

9

McDonald v. Cason, 801 So. 2d 1255, 1262 (La. App. 3 Cir. 2001).

2014).

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commensurate with her infractions.”10 Accordingly, the cause of Plaintiff’s
termination was actually litigated, and its determination was essential to the
Civil Service Commission’s (and, by extension, the Fourth Circuit’s) judgment.
That judgment is now final, as the time for appeal has elapsed.
This earlier finding bars Plaintiff’s current claims based on her
termination. Plaintiff brings claims asserting that her termination violates
state and federal race, gender, and age discrimination laws, the FMLA, and 42
U.S.C. §1983.

Each of these claims require Plaintiff to prove that her

termination was unlawful due to some protected status or factor. The cause of
her termination has, however, already been litigated and found to be lawful
and unrelated to any deprivation of rights or her status as a member of a
protected class. Accordingly, her claims against all Defendants are dismissed.
II. Motion for Sanctions
Defendants have also asked this Court to impose sanctions on Plaintiff’s
attorney for bringing the instant suit. “Any attorney or other person admitted
to conduct cases in any court of the United States . . . who so multiples the
proceedings in any case unreasonably and veraciously may be required by the
court to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.”11 “The courts often use repeated
filings despite warnings from the court, or other proof of excessive
litigiousness, to support imposing sanctions.”12 This requires that there be
Kass v. Plaquemines Parish Gov't, 160 So. 3d 1103, 1107 (La. App. 4 Cir. 2015).
28 U.S.C. § 1927.
12 Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 525 (5th Cir. 2002).
10

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evidence of bad faith, improper motive, or reckless disregard of the duty owed
to the court.13
The Court declines to impose sanction on Plaintiff’s attorney.
Defendants have introduced no direct evidence of improper motive. Instead,
they would have the Court infer an improper motive from the circumstances of
the case. Because of the punitive nature of such sanctions, the Court declines
to do so.
CONCLUSION
For the forgoing reasons, the Motions to Dismiss and for Sanctions (Docs.
3 and 23) are GRANTED IN PART. Because the Court finds that amendment
would be futile, Plaintiff’s claims are DISMISSED WITH PREJUDICE.
Defendants’ request for sanctions is DENIED.
New Orleans, Louisiana this 16th day of November, 2015.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

13

Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir. 1998).

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