Broussard v. Jazz Casino Company, LLC et al
Filing
34
ORDER AND REASONS granting in part Jazz Casino Company, LLC'S 10 Motion to Dismiss for Failure to State a Claim. Plaintiff's IIED claim is DISMISSED, and she is granted leave to amend this claim within 20 days of this Order to the extent that she can remedy the deficiencies identified herein. Signed by Judge Jane Triche Milazzo on 6/14/2016. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEANNA BROUSSARD
CIVIL ACTION
VERSUS
NO: 15-6959
JAZZ CASINO CO. LLC ET AL
SECTION “H”
ORDER AND REASONS
Before the Court is Defendant Jazz Casino’s Motion to Dismiss (Doc. 10).
For the following reasons, the Motion is GRANTED IN PART.
BACKGROUND
Defendant Jazz Casino Company, LLC (“Jazz Casino”) hired Plaintiff
Deanna Broussard as a Senior Executive Host at Harrah’s Casino in April
2006.
On May 14, 2014, Jazz Casino discharged Plaintiff for alleged
misconduct. Thereafter, Plaintiff, a sixty-five-year-old woman, filed a charge
of discrimination under the Age Discrimination in Employment Act (ADEA)
with the Equal Employment Opportunity Commission (EEOC). In her EEOC
charge, Plaintiff claimed that she was discriminated against because of her age
and “discharged and replaced with someone younger.” The charge also alleged
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that her manager, Defendant Matthew Robicheaux, made remarks about her
age and alleged that she had poor hearing.
Additionally, it alleged that
another supervisor, Defendant Cain Myers, repeatedly asked if she was going
to retire soon. On September 23, 2015, Plaintiff received a right to sue letter
from the EEOC.
On December 20, 2015, Plaintiff brought this suit, asserting an ADEA
claim, a state law employment discrimination claim, a hostile work
environment claim, a defamation claim, a breach of contract claim, and an
intentional infliction of emotional distress claim, as well as claims under “all
other applicable” federal and state laws. Defendants include Jazz Casino, and
its employees, Cain Myers, Matthew Robicheaux, Kristen Westburg, and
Daniel Real.
Plaintiff claims Myers, Robicheaux, Westburg, and Real
individually discriminated against her.
Defendant Jazz Casino has filed the instant motion to dismiss many of
Plaintiff’s claims. This Court will address each argument in turn.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim for relief that is plausible on its face.” 1 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw
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,
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. 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).
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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 If it is apparent from the face of the complaint that
an insurmountable bar to relief exists and the plaintiff is not entitled to relief,
the court must dismiss the claim. 6
The court’s review is limited to the
complaint and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint. 7
LAW & ANALYSIS
This Court will address each of Movant’s arguments for dismissal in
turn.
I.
Hostile Work Environment Claim
Movant first argues that Plaintiff’s hostile work environment claim
should be dismissed for failure to exhaust her administrative remedies.
Movant alleges that Plaintiff’s EEOC charge does not support a hostile work
environment claim. Plaintiff’s Complaint adds additional facts that were not
included in her EEOC charge.
Specifically, Plaintiff’s Complaint adds
allegations of discriminatory incidents involving two additional supervisors
not mentioned in her EEOC charge—Westburg and Real. Movant argues that
Plaintiff has not exhausted her administrative remedies as to her hostile work
environment claim because these additions are beyond the scope of the EEOC
charge. Movant also argues that because these allegations were not included
in the EEOC charge, they are now are time-barred.
Iqbal, 556 U.S. at 678.
Id.
6 Lormand, 565 F.3d at 255–57.
7 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
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Under the ADEA, an employee may seek judicial relief but must first
exhaust her administrative remedies with the EEOC. 8 A claim is considered
exhausted if is within “the scope of the EEOC complaint and reasonably
expected to grow out of a charge of discrimination.” 9 “In examining a Title VII
or ADEA action, the Court’s inquiry ‘is not . . . limited to the exact charge [of
discrimination].’” 10 The Fifth Circuit has recognized that a Title VII plaintiff
is not required to “check a certain box or recite a specific incantation to exhaust
his or her administrative remedies.” 11
Additionally, EEOC charges are
construed broadly and require “a fact-intensive analysis.” 12
Plaintiff’s EEOC charge alleges that her supervisors “repeatedly” made
comments regarding her age and even persisted after she asked them to stop. 13
This Court holds that those allegations were sufficient to put Movant on notice
that Plaintiff might seek a hostile work environment claim. A hostile work
environment claim was within the scope of Plaintiff’s EEOC charge. Movant’s
request to dismiss on those grounds is denied. In light of this finding, Movant’s
argument that Plaintiff’s hostile work environment claim is time-barred for
failure to allege such in her EEOC charge likewise fails.
II.
Defamation Claim
Movant next moves for dismissal of Plaintiff’s defamation claim, arguing
that Plaintiff has failed to allege enough facts to meet the four elements
Walton-Lentz v. Innophos, 476 Fed. App’x 566, 569 (5th Cir. 2012).
Id.
10 Harris v. State Farm Fire & Cas. Ins. Co., 178 F.Supp. 2d 680, 659 (W.D. La. 2001) (quoting
Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990).
11 Pacheo v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006) (citing Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 466 (5th Cir. 1970)).
12 McClain v. Lufkin Industries, Inc., 519 F.3d 264, 273 (5th Cir. 2010).
13 Doc. 10-2, p. 2.
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required for a defamation claim under Louisiana law. Movant argues that the
Plaintiff’s claim amounts merely to a disagreement with the Defendants’
legitimate, non-discriminatory reason for her discharge. Under Louisiana law,
[f]our elements are necessary to establish a claim for defamation:
(1) a false and defamatory statement concerning another; (2) an
unprivileged publication to a third party; (3) fault (negligence or
greater) on the part of the publisher; and (4) [a] resulting injury.
The fault requirement is generally referred to in the jurisprudence
as malice, actual or implied.” 14
“[A] statement is defamatory if it tends to harm the reputation of another so
as to lower the person in the estimation of the community, [or] deter others
from associating or dealing with the person . . . .” 15 “[A]ny communication to a
third party, absent a privilege, absolute or qualified, is considered a
publication.” 16
This Court holds that the allegations of Plaintiff’s Complaint are
sufficient to state a claim for defamation. In her Complaint, Plaintiff contends
that Defendants alleged that she was terminated for “misconduct” when she
failed to meet certain sales or financial performance goals. 17 Plaintiff claims
the use of the word “misconduct” in the “parlance of employment law . . . often
refers to theft, dishonesty, or insubordination.” 18 Plaintiff argues that given
these connotations of the word “misconduct,” its use in her personnel file and
in connection with her unemployment insurance benefit hearing amounts to
defamation and slander. 19
Plaintiff alleges that Defendants’ defamatory
Lorenzo v. State Farm Mut. Auto. Ins. Co., 983 F. Supp. 2d 852, 856 (E.D. La. 2013).
Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 674 (La. 2006).
16 Carlisle v. Sotirin, No. 04-1549, 2005 WL 78938, at *5 (E.D. La. Jan. 11, 2005) (quoting
Costello v. Hardy, 864 So.2d 129, 142 (La. 2004)).
17 Doc. 1, p. 10.
18 Doc. 1.
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See Costello v. Hardy, 864 So. 2d 129, 142 (La. 2004) (“We likewise find that the statements were
published [in the plaintiff’s petition], since any communication to a third party, absent a privilege,
absolute or qualified, is considered a publication.”)
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comment has caused damage to her re-employment prospects, her reputation,
and future employability.
Accordingly, Plaintiff has stated a claim for
defamation, and Movant’s motion to dismiss such is denied.
III.
Breach of Contract Claim
Movant next argues that Plaintiff has failed to state a cause of action for
breach of contract because her Complaint does not identify any specific
obligation or failure to perform on its part. In order to state a valid claim for
breach of contract under Louisiana law, Plaintiff must allege: (1) an
undertaking of an obligation to perform, (2) a failure to perform the obligation,
and (3) damages resulting from the failure to perform. 20 Movant claims that
the Plaintiff “has not identified any specific obligation arising under her
alleged contract.” 21
Plaintiff’s Complaint claims Defendant Jazz Casino entered into an
employment contract with her that guaranteed Plaintiff’s employment until
June 1, 2014, and that it breached that contract by terminating her a few
weeks earlier on May 14, 2014. Plaintiff alleges that she was entitled to remain
employed until the expiration of her contract and that she anticipated that her
contract would be renewed. She alleges that her termination resulted in outof-pocket expenses, such as professional license renewal fees. This Court holds
that Plaintiff’s allegations are sufficient to state a claim for breach of contract.
Plaintiff’s Complaint alleges that Movant was obligated by the employment
Favrot v. Favrot, 68 So.3d 1099, 1109–10 (La. App. 4 Cir 2011) (citing Jackson Joint
Venture v. World Constr. Co., Inc., 499 So.2d 426, 427 (La. App. 4 Cir. 1986)); see also
Smoothie King Franchises, Inc. v. Southside Smoothie & Nutrition Center, Inc., No. 11–2002,
2012 WL 630010, at *4 (E.D. La. 2012).
21 Doc. 10-1, p. 11.
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contract to maintain her employment until June 1, that it failed to do so by
terminating her earlier, and that she suffered damages caused by her early
termination. 22 Accordingly, Movant’s request for dismissal of this claim is
denied.
IV.
Intentional Infliction of Emotional Distress Claim
Movant next seeks dismissal of Plaintiff’s Intentional Infliction of
Emotional Distress (“IIED”) claim. Under Louisiana law,
in order to recover for intentional infliction of emotional distress,
a plaintiff must establish (1) that the conduct of the defendant was
extreme and outrageous; (2) that the emotional distress suffered
by the plaintiff was severe; and (3) that the defendant desired to
inflict severe emotional distress or knew that severe emotional
distress would be certain or substantially certain to result from his
conduct. 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. 23
Movant argues that the Plaintiff “has not alleged a single fact that gives
rise to any inference that would support one of the three elements for an
intentional infliction of emotional distress claim.” 24
This Court agrees.
Plaintiff alleges that the denigration of her job performance has caused her
emotional distress. However, Plaintiff’s Complaint fails to allege any facts
In its reply, Movant raises two additional arguments seeking dismissal of Plaintiff’s defamation
claim: (1) that the alleged publication is subject to a qualified privilege, and (2) that Plaintiff’s
defamation claim is prescribed. However, “[i]t is the practice of [the Fifth Circuit] and the district
courts to refuse to consider arguments raised for the first time in reply briefs.” Gillaspy v. Dall. Indep.
Sch. Dist., 278 Fed.Appx. 307, 315 (5th Cir. 2008). Accordingly, this Court declines to address
Movant’s new arguments.
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White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991).
Doc. 10-1, p. 10.
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showing that Plaintiff suffered severe emotional distress or that the
Defendants’ conduct was sufficiently outrageous. Even taking the Plaintiffs
allegations as true, her allegations do not support a claim for IIED.
“Employment disputes, even those involving discrimination and harassment,
will rarely rise to the level of intentional infliction of emotional distress.
Ultimately, ‘[c]onduct in the workplace, even if calculated to cause some degree
of mental anguish will rarely be so severe that it will rise to the level of
outrageous conduct.’” 25 Accordingly, Plaintiff’s claim for IIED is dismissed.
Plaintiff is granted leave to amend her IIED claim to the extent that she can
remedy the deficiencies identified herein.
V.
Other Claims
Finally, Movant argues that the Complaint’s references to claims under “all
other applicable” federal and state laws should be dismissed. It also argues
that Plaintiff’s claim under Louisiana Revised Statute § 23:1006, which was
repealed in 1997, should be dismissed. It is well settled that “[c]omplaints are
for the purpose of pleading facts, not law.” 26 In order to pass muster under
Rule 12(b)(6), a complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” 27 “[A] plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and conclusions. 28
Accordingly, Plaintiff’s mere reference to “all” federal and state laws is
insufficient to state a claim where a claim is not otherwise supported by facts
Tate v. La. Dept. of Transp. and Dev., No. 11-1212, 2013 WL 796015, at *21 (E.D. La. Mar.
4, 2013) (citing Bertaut v. Folger Coffee Co., No. 06–2437, 2006 WL 2513175, at *3–4 (E.D.
La. Aug. 29, 2006)).
26 Jetco Elec. Indus. v. Gardiner, 325 F. Supp. 80, 84 (S.D. Tex. 1971).
27 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(emphasis added).
28 Id. at 555.
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in the Complaint. In addition, Plaintiff’s incorrect reference to the repealed
Louisiana Revised Statute § 23:1006, which has been renumbered and replaced
by Louisiana Revised Statute 23:332, 29 does not prevent her from pursing a
state law claim for intentional discrimination in employment where the facts
of her Complaint otherwise support such a claim. Accordingly, the incorrect or
superfluous references to law in Plaintiff’s Complaint should be ignored in lieu
of the facts pleaded therein.
CONCLUSION
For the foregoing reasons, Defendant Jazz Casino’s Motion to Dismiss is
GRANTED IN PART.
Plaintiff’s IIED claim is DISMISSED, and she is
granted leave to amend this claim within 20 days of this Order to the extent
that she can remedy the deficiencies identified herein.
New Orleans, this 14th day of June, 2016.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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Act of July 15, 1997, 1997 La. Sess. Law Serv. Act 1409.
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