Edmonds v. Copeland et al
Filing
38
ORDER AND REASONS granting in part and denying in part 18 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ZEPPORIAH EDMONDS
CIVIL ACTION
VERSUS
NO. 16-298
SERGEANT SIDNEY SMITH, ET AL.
Section “B” (3)
ORDER AND REASONS
Before the Court is Defendants’ Motion to Dismiss under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction. Rec. Doc. 18. Plaintiff, Zepporiah Edmonds, opposes
Defendants’
12(b)(1)
Motion.
Rec.
Doc.
24.
Defendants
also
submitted a Reply to the Memorandum in Opposition. Rec. Doc. 30.
Thereafter,
both
parties
submitted
Supplemental
Memoranda
regarding the Equal Employment Opportunity Commission’s (EEOC)
investigations and documentation. Rec. Doc. 35 and Rec. Doc. 36.
For the reasons that follow,
IT IS ORDERED that the Motion is GRANTED in part and DENIED
in part.
I.
FACTS AND PROCEDURAL HISTORY
Plaintiff filed an EEOC Charge of Discrimination on November
4, 2014. The two most relevant sections of the EEOC Charge of
Discrimination in this case are the “Discrimination based on”
section and the “Particulars” section. Rec. Doc. 35-2 at 2. In the
1
first section, there are specific types of discrimination that can
be selected by marking boxes; the boxes checked off in this Charge
were for “race”, ”age”, and “retaliation”. Rec. Doc. 35-2 at 2.
The aggrieved party can describe the charges in more detail in the
“Particulars” section. Rec. Doc. 35-2 at 2. In the relevant portion
of the “Particulars” section, Plaintiff stated:
Linda Copeland is allowed to create a hostile work
environment by being disruptive, making inappropriate
comments and being divisive in the workplace. [In] March
2014 I received an outstanding evaluation. In May 2014
after I submitted a written statement re: Linda’s
inappropriate comments and unprofessional behavior, I
was issued a verbal warning. Also the retaliation and
harassment began immediately. I have forwarded several
emails to Director Jernigan re: Linda but to no avail.
On one occasion after Linda became involved in a
situation with my department I was told by Jernigan that
Linda was acting under his direction. Additionally I was
informed in writing by Director Jernigan and through
verbal comments and emails by Linda that there was a
sudden change in my job performance. Because I reported
the inappropriate conduct of a white colleague and
because I am a 31 year employee I am being subjected to
a retaliatory and hostile work environment.
Rec. Doc. 35-2 at 2.
Plaintiff also submitted a second Charge of Discrimination on
July 15, 2015. Rec. Doc. 18-2 at 2. In the “Discrimination based
on” section, Plaintiff only marked off retaliation. Rec. Doc. 182 at 2. In the “Particulars” section, Plaintiff described more
retaliation based on the previous Charge of Discrimination. Rec.
2
Doc. 18-2 at 2. The EEOC did not give a Notice of Right to Sue for
this Charge of Discrimination.
The EEOC then sent a Notice of Right to Sue on October 13,
2015 regarding the first Charge of Discrimination. Rec. Doc. 35-1
at 1. Plaintiff claims that she received the letter on October 20,
2015. Rec. Doc. 24 at 15. Plaintiff then filed suit on January 12,
2016, alleging race and disability discrimination, along with
hostile
work
environment,
retaliation,
whistleblower
claims,
wrongful termination, and other claims in tort. Rec. Doc. 1 at 2.
Defendants filed the instant Motion to Dismiss claiming that this
court does not have subject matter jurisdiction over claims not
present in the Charge of Discrimination. Rec. Doc. 35.
II.
CONTENTIONS OF THE MOVANT
Defendants assert that this Court does not have subject matter
jurisdiction over certain claims in the Complaint because the
Plaintiff has not exhausted all administrative remedies. Rec. Doc.
35
at
1.
In
order
to
exhaust
all
administrative
remedies,
Defendants allege that all claims in the Complaint must also be
within the scope of the claims on the EEOC Charge of Discrimination
form that triggered the Notice of Right to Sue. Rec. Doc. 35 at 1.
Defendants state that the first Charge of Discrimination has a
race discrimination, age discrimination, and retaliation charge.
3
Rec. Doc. 35 at 2. The Complaint filed by Plaintiff alleges racial
discrimination,
accommodate
or
hostile
recognize
working
the
environment,
employee’s
failure
disability,
to
federal
whistleblower claims, and wrongful termination. Rec. Doc. 18 at 1.
Defendants concede that the racial discrimination claim in the
Complaint is in the Notice of Right to Sue. Rec. Doc. 35 at 6.
However, Defendants contend that Plaintiff has waived her right to
sue regarding the age discrimination claim because it was not
included in the Complaint within ninety days of receiving the
Notice. Rec. Doc. 35 at 6. Defendants also contend that the Charge
of Discrimination does not include the claims of hostile working
environment, disability discrimination, whistleblower status, and
wrongful
termination.
Accordingly,
Defendants
claim
that
all
administrative remedies have not been exhausted for these claims
and this Court does not have subject matter jurisdiction over them.
Rec. Doc. 35 at 2.
III. CONTENTIONS OF THE NON-MOVANT
The Plaintiff contends that this Court has subject matter
jurisdiction over the age discrimination claim because it was part
of the Charge of Discrimination that led to the Notice of Right to
Sue. Rec. Doc. 36 at 1. The Plaintiff then claims that because the
age discrimination and disability discrimination claims are “very
4
intertwined”, this court also has jurisdiction over the disability
discrimination claims. Rec. Doc. 36 at 2. Plaintiff contends that
since the claims not on the EEOC Charge, such as the disability
discrimination and whistleblower claims, arise from the “same
witnesses, facts, circumstances and time periods” then this court
has supplemental jurisdiction over these claims. Rec. Doc. 35 at
2-3. Plaintiff states that, if the subsequent claims require EEOC
Charges, Notices of Rights to Sue, and additional Complaints, it
would hinder judicial economy. Rec. Doc. 35 at 8.
IV.
LAW AND ANALYSIS
Rule 12(b)(1) allows a party to challenge the Court’s subject
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The district court
can dismiss under 12(b)(1) based on “(1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts”. Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir. 1981). The court accepts as true all
well-pleaded claims and views them in the light most favorable to
the
plaintiff.
American
Waste
and
Pollution
Control
Co.
v.
Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). A court
should only grant a motion to dismiss under 12(b)(1) if it appears
certain that the plaintiff cannot prove any set of facts in support
5
of his claim that would entitle him to relief. Home Builders Ass’n
of Miss, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th
Cir. 1998).
For a federal court to hear an employment discrimination
claim,
plaintiffs
must
exhaust
administrative
remedies
by
“fil[ing] a timely charge with the EEOC and receiv[ing] a statutory
notice of right to sue”. Taylor v. Books A Million, 296 F.3d 376,
378-379 (5th Cir. 2002). The EEOC and the related laws place “an
emphasis on voluntary settlement of all issues without an action
in the District Court.” Sanchez v. Standard Brands Inc., 431 F.2d
455, 467 (5th Cir. 1970) (citing King v. Georgia Power Co., 295
F.Supp. 943, 947 (N.D. Ga. 1968).) The first step to this voluntary
settlement is the Charge of Discrimination filed by the aggrieved
party.
42
U.S.C.
§
2000e-5(b).
The
EEOC
will
then
begin
an
investigation related to the claims on the Charge. Id. The Notice
of a Right to Sue is sent “[i]f a charge filed with the Commission
. . . is dismissed by the Commission or if within one hundred and
eighty days from the filing of such charge . . . the Commission
has not filed a civil action . . ., or the Commission has not
entered into a conciliation agreement to which the person aggrieved
is a party.” 42 U.S.C. § 2000e-5(f)(1). The Notice of the Right to
Sue is notice to the aggrieved party that within ninety days of
6
receipt of the notice “a civil action may be brought against the
respondent named in the charge.” Id.
The right to sue is based on the Charge of Discrimination.
Id. In this case, the Notice of Right to Sue is only based on the
first Charge of Discrimination, dated November 4, 2014. Rec. Doc.
35-1 at 2. There is no Notice of Right to Sue for the July 2015
Charge of Discrimination, so this Charge is not relevant to this
case.
The Fifth Circuit has “decline[d] to hold that the failure to
place
a
check
mark
in
the
correct
box
[on
the
Charge
of
Discrimination form is] a fatal error”. Sanchez, 431 F.2d at 463.
Because
the
intent
of
Title
VII
is
“to
protect
equality
of
opportunity among all employees and prospective employees”, this
leads to “a large number of the charges . . . filed by ordinary
people unschooled in the technicalities of the law.” Id. at 463.
(citing King v. Ga. Power Co., 295 F. Supp. 943, 947 (N.D. Ga.
1968)). Therefore, the Court stated that “the crucial element of
a charge of discrimination is the factual statement contained
therein.” Id. at 462. The court further diminished the importance
of the technicalities of the Charge of Discrimination by explaining
the importance of the EEOC investigation because “it is obvious
that the civil action is much more intimately related to the EEOC
7
investigation than to the words on the charge.” Id. at 466. So,
“it is only logical to limit the permissible scope of the civil
action to the scope of the EEOC investigation which can reasonably
be expected to grow out of the charge of discrimination.” Id.
In
this
case,
Plaintiff
checked
off
“Race”,
“Age”,
and
“Retaliation” in the November 2014 Charge of Discrimination. Rec.
Doc. 35-2 at 2. Within the “Particulars” section, Plaintiff further
alleged these claims but also included a claim for “hostile work
environment”. Id. It is clear that administrative remedies have
been exhausted for the “race” and “retaliation” claims because
they have been checked off and discussed in the “Particulars”
section
of
specifically
the
first
challenge
Charge.
these
Moreover,
claims.
Defendants
Rec.
Doc.
18.
do
not
Because
Plaintiff stated “Linda Copeland is allowed to create a hostile
work
environment
by
being
disruptive,
making
inappropriate
comments and being divisive in the workplace”, it is reasonable
that
the
EEOC
environment
investigation
claim.
Rec.
would
Doc.
include
35-2
at
2.
the
hostile
work
Therefore,
the
administrative remedies have been exhausted for that claim. See
Sanchez, 431 F.2d at 455. Even though the administrative remedies
for age discrimination might have been exhausted, it is important
to note that it is not in the Complaint. Since Plaintiff did not
file this claim in a civil action within ninety days of the Notice,
8
Plaintiff has lost the right to sue for age discrimination. 42
U.S.C. § 2000e-5(f).
Further, disability discrimination was not mentioned in the
EEOC Charge. Without being in the Charge, it was not included in
the Notice of Right to Sue.
Consequently, Plaintiff has not
exhausted administrative remedies for this claim. Rec. Doc. 35-2
at 2. Therefore, this court does not have jurisdiction over this
claim and it should be dismissed.
The next issue is whether the whistleblower claim is valid.
Under 42 U.S.C. § 2000e-3(a), “[i]t shall be an unlawful employment
practice . . . to discriminate against any individual . . . because
he opposed any practice made an unlawful employment practice by
this
subchapter.”
An
EEOC
Charge
of
Discrimination
is
not
invariably required for a whistleblower claim.
The only portion of the “Particulars” section that might
involve
a
whistleblower
claim
states:
“In
May
2014
after
I
submitted a written statement re: Linda’s inappropriate comments
and unprofessional behavior, I was issued a verbal warning.” Rec.
Doc. 35-2 at 2. She also went on to describe that the retaliation
from Defendants began at this point. Rec. Doc. 35-2 at 2. This
retaliation included Defendants documenting a “sudden change in
[Plaintiff’s] job performance” even though Plaintiff claims that
9
her performance remained consistent. Rec. Doc. 35-2 at 2.
In the
Complaint the Plaintiff stated that the retaliation commenced
because she “initiated reports to the Office of the Inspector
General
(OIG)
regarding
concerns
of
misconduct
by
some
city
officials.” Rec. Doc. 1 at 7.
The facts provided do not support a whistleblower claim under
the laws cited. The Plaintiff cites several federal laws in support
for the whistleblower claim, namely, the federal whistleblower
statute,
5
U.S.C.
Administration
§
(“OSHA”)
2302,
Occupational
regulations,
and
Health
and
Department
Safety
of
Labor
regulations. Rec. Doc. 1 at 2. The Federal Whistleblower Statute
does not apply because Title 5 of the United States Code, which
the federal whistleblower statute falls under, only applies to
federal employees, and the Plaintiff is a city employee. 5 U.S.C.
§
2105.
developed
The
to
OSHA
regulations
prevent
do
retaliation
not
apply
when
an
because
employee
they
are
presents
information showing unhealthy or unsafe practices in a specific
field.1 The Plaintiff was not reporting anything that was unhealthy
or unsafe, just alleged misconduct. Rec. Doc. 1 at 7. Under the
Department of Labor’s regulations, the primary whistleblower law
Plaintiff’s Complaint was unclear regarding which OSHA laws applied to this
case. No OSHA regulations were directly pertinent to this case. Some examples
of OSHA regulations include 49 U.S.C. § 42121 (airplane safety), 33 U.S.C. §
1367 (water pollution), and 42 U.S.C. § 7622 (air pollution).
1
10
is the Sarbanes-Oxley Act. 18 U.S.C. § 1514A(a). This law only
protects employees of publicly traded companies. Id. The Plaintiff
is a city employee. Therefore, none of the Federal laws apply.
Since none of the federal laws offered by the Plaintiff
support a whistleblower claim, the only other option would be a
state whistleblower claim. The state whistleblower statute is
Louisiana
Statutes
Annotated
§
23:967.
“For
an
employee
to
establish a claim under La. R.S. § 23:967, she must prove that her
employer committed an actual violation of state law.” Goulas v.
LaGreca, 945 F.Supp. 2d 693, 702 (E.D. La. 2013) (citing Stevenson
v. Williamson, 547 F.Supp. 2d 544, 558 (M.D. La. 2008)). This
violation must be of a state statute. See Hale v. Touro Infirmary,
2004-0003 (La. App. 4 Cir. 11/3/04); 886 So.2d 1210, 1216. Here,
Plaintiff only describes “violations of city policy, possible
ethics violations, and the blatant disregard of Executive Order
MJL 10-05: Professional Services Contract Reforming.” Rec. Doc. 1
at 7.
None of these are state laws, so the state whistleblower
statute does not apply. Therefore, Plaintiff has failed to state
a valid whistleblower claim.
The next issue is Plaintiff’s wrongful termination claim.
This claim, although present in the Complaint, is not within the
first EEOC Charge. Rec. Doc. 35-2 at 2. Since it is not directly
11
in the Charge, the only way that the court can have jurisdiction
over the claim is if it can come from the “EEOC investigation which
can
reasonably
be
expected
to
grow
out
of
the
charge
of
discrimination.” Sanchez, 431 F.2d at 466. In this case, based on
the
first
EEOC
Charge,
it
is
highly
unlikely
that
the
EEOC
investigation would involve wrongful termination because Plaintiff
was not terminated at the time the charge was filed. Accordingly,
this
claim
should
be
dismissed
without
prejudice,
pending
a
subsequent EEOC Charge and Notice of Right to Sue based on a claim
for wrongful termination.
V.
CONCLUSION
IT IS ORDERED that Defendants’ Motion to Dismiss is GRANTED
with respect to the disability, age, whistleblower, and wrongful
termination claims, which are DISMISSED WITHOUT PREJUDICE. The
Motion is DENIED in all other respects.
New Orleans, Louisiana, this 27th day of July, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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