Edmonds v. Copeland et al
ORDER AND REASONS: IT IS ORDERED that Defendants' 60 motion is GRANTED. Therefore, Plaintiff's claims are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's 62 motion for reconsideration is DENIED. IT IS FURTHER ORDERED that Plaintiff's 63 motion to disqualify counsel is DISMISSED AS MOOT as set forth in document. Signed by Judge Ivan L.R. Lemelle on 6/19/2017. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS CITY, ET AL.
ORDER AND REASONS
Before the Court are several motions filed by the parties.
First is the “City Defendants’ Motion to dismiss Pursuant to
F.R.C.P. 12(b)(1) & 12(c) or alternatively, Motion for Summary
Judgment Pursuant to F.R.C.P. 56.” Rec. Doc. 60.1 Plaintiff timely
filed an objection (Rec. Doc. 73)2 and a response memorandum (Rec.
Doc. 74). Defendants then requested (Rec. Doc. 76), and were
granted (Rec. Doc. 77), leave to file a reply memorandum (Rec.
Because the Court considered more than just the pleadings, the motion will be
treated as one for summary judgment.
2 Defendants’ motion was filed on May 16, 2017. Rec. Doc. 60. This Court
previously explained that, pursuant to the Court’s scheduling order, all casedispositive pretrial motions were to be “filed and served in sufficient time to
permit hearing thereon no later than JUNE 2, 2017.” Rec. Doc. 68 at 1 (citing
Rec. Doc. 43 at 1). June 2 was not a motion day, however, so these motions had
to be filed in sufficient time to permit hearing thereon no later than May 24,
the motion day immediately preceding June 2; pursuant to Local Rule 7.2, the
motion therefore had to be filed no later than May 9. Id. Because Defendants’
motion was filed on May 16, it was set for submission on June 7 and Defendants
filed a motion to expedite. Id. at 1-2 (citing Rec. Doc. 65). Plaintiff asked
the Court to dismiss the motion as untimely. Rec. Doc. 66. Because Plaintiff
had fourteen days to draft an opposition memorandum and Plaintiff also filed
three motions on May 16 (one of which was marked deficient and subsequently refiled on May 24, see Rec. Docs. 61-63, 67), the Court agreed to consider
Defendants’ motion on June 7. Rec. Doc. 68 at 2-3. In the objection filed to
the instant motion, Plaintiff essentially reiterates the arguments she
previously made. Those arguments are rejected for the same reasons expressed in
this Court’s earlier order. See Rec. Doc. 68.
Second is “Plaintiff Zepporiah Edmonds’ Rule 60 Motion to
Reinstate Age Discrimination Claims dismissed from the Plaintiff’s
Original Petition by this Court due to Mistake included within the
Court’s Order and Reasons Issued July 27, 2016 – Document 38.”
Rec. Doc. 62. Defendants timely filed an opposition memorandum.
Rec. Doc. 70.
Third is “Plaintiff Zepporiah Edmonds’ Motion to Remove and
Replace Defense Counsel Elizabeth Robins as Defendants’ Counsel in
the Matter Due to Her Being Included by the Plaintiff as a Vital
opposition memorandum. Rec. Doc. 71. For the reasons discussed
IT IS ORDERED that Defendants’ motion (Rec. Doc. 60) is
IT IS FURTHER ORDERED that Plaintiff’s Rule 60 motion (Rec.
Doc. 62) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion to disqualify
counsel (Rec. Doc. 63) is DISMISSED AS MOOT.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of the termination of Zepporiah Edmonds
(“Plaintiff”) on January 11, 2016. Rec. Doc. 1 at 4. She was a
parking administrator in the parking division of the Department of
Public Works (“DPW”) and therefore employed by Defendant New
Orleans City (“New Orleans”). Id. In her original complaint,
Plaintiff claimed that, beginning in 2012, she was “targeted . .
. for harassment . . . .” Id. She believed that the harassment
appointed non-African American supervisors with insufficient city
(“Jernigan”). Id. at 4, 6. Defendant Linda Copeland (“Copeland”),
the human resources manager for the DPW, allegedly participated in
harassment only started after she reported potential misconduct to
the Office of Inspector General (“OIG”) and various other entities
and supervisors in 2012. Id. at 7, 9. She claims that the city
retaliated against her for making these complaints by no longer
recognizing her as the curb management expert, dismissing her work
product, and undermining her authority. Id. at 10-11. Because of
this “hostile work environment,” Plaintiff went on sick leave on
June 22, 2015. Id. at 15. She was eventually terminated on January
11, 2016. Rec. Doc. 53 at 10.
(“EEOC”). On October 13, 2015, she received a right to sue letter
for the first complaint (filed with the EEOC on November 4, 2014
and alleging race and age discrimination and retaliation, see Rec.
Doc. 60-4 at 1); the right to sue letter gave her until January
18, 2016 to file a lawsuit. Rec. Doc. 1 at 17.
Thus, on January 12, 2016, Plaintiff filed a complaint against
New Orleans, Copeland, and Jernigan, alleging violations of Title
VII of the Civil Rights Act of 1964 (“Title VII”), the Americans
with Disabilities Act of 1990 (“ADA”), and various state and
intentional infliction of emotional distress. Rec. Doc. 1 at 2-3,
employment. Rec. Doc. 5. This Court denied the motion, reasoning
that “[t]he position that plaintiff hope[d] to maintain [was] no
longer the status quo as her termination has already taken effect,
appropriate remedy.” Rec. Doc. 6 at 2.
On March 3, 2016, Defendants filed a motion to dismiss for
lack of jurisdiction. Rec. Doc. 18. On July 27, 2016, this Court
granted the motion in part. Rec. Doc. 38. Plaintiff’s first EEOC
discriminated against her based on her race and age, and created
a hostile work environment. Id. at 1-2, 8 (citing Rec. Doc. 35-2
at 2). In her second EEOC complaint, filed on July 15, 2015,
Plaintiff alleged retaliation. Id. at 2 (citing Rec. Doc. 18-2 at
2); see also Rec. Doc. 60-4 at 1. Before filing the instant suit,
Plaintiff only received a right to sue notice for the first
complaint. Rec. Doc. 38 at 2-3. Because a party must first exhaust
his or administrative remedies before filing suit, this Court found
discrimination, and hostile work environment based on the first
discrimination claims, but these claims were not included in
Plaintiff’s original complaint. Id.3 Plaintiff alleged disability
discrimination and wrongful termination in her original complaint,
but she did not allege these claims in her first EEOC charge, so
the Court lacked jurisdiction over such claims. Id. at 9, 11-12.
The Court further found that Plaintiff failed to state a valid
whistleblower claim. Id. at 11. Thus, the Court granted the motion
in part to dismiss the disability, age, whistleblower, and wrongful
termination claims. Id. at 12.
In response, Plaintiff filed a “motion for new trial,” asking
this Court to reinstate the dismissed claims under state law. Rec.
Doc. 39. This Court construed it as a motion for reconsideration
and denied because Plaintiff failed to cite to any applicable
Louisiana law. Rec. Doc. 41 at 8.
On December 12, 2016, Plaintiff sought leave to file an
amended complaint. Rec. Doc. 45. Plaintiff’s motion was referred
This finding is the subject of Plaintiff’s Rule 60 motion, discussed below.
to Magistrate Judge Daniel Knowles, who granted it as unopposed on
December 21, 2016. Rec. Doc. 52.
In her amended complaint, Plaintiff alleged that she received
right to sue letters for her second and third EEOC complaints. See
Rec. Doc. 45-2 at 1-2 (both letters are dated September 26, 2016).
She stated that in her third EEOC complaint, filed on April 13,
2016, she alleged retaliation, wrongful termination, hostile work
environment, and race and disability discrimination. Rec. Doc. 53
at 5; see also Rec. Doc. 60-8 at 1. Nonetheless, Plaintiff removed
all references to whistleblower claims and added claims under
Otherwise, save for a few minor changes, Plaintiff’s amended
complaint largely reflected her original complaint.
On May 16, 2017, the parties filed the instant motions. Rec.
Docs. 60, 62-63.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
jurisdiction over Plaintiff’s wrongful termination claim, as it
relates to her demand for an injunction4 and reinstatement, and
that Plaintiff has otherwise failed to state a valid claim for
This Court previously denied Plaintiff’s request for an injunction. Rec. Doc.
6. Plus, Plaintiff admits in her response memorandum that she is no longer
seeking an injunction. Rec. Doc. 74 at 6-7. Thus, the Court will consider
Defendants’ arguments concerning subject matter jurisdiction only as they relate
to Plaintiff’s request for reinstatement.
relief, such that they move for summary judgment under Federal
Rule of Civil Procedure 56. Rec. Doc. 60 at 1-2, 4.
A. SUMMARY JUDGMENT STANDARD
Under Rule 56, summary judgment is appropriate only if “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56(c));
see also TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754,
759 (5th Cir. 2002). A genuine issue exists if the evidence would
allow a reasonable jury to return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The movant must point to “portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient. Travelers Ins. Co. v. Liljeberg Enter., Inc., 7 F.3d
1203, 1207 (5th Cir. 1993).
B. PLAINTIFF’S WRONGFUL TERMINATION CLAIM(S)
Defendants argue that Plaintiff’s demand for reinstatement is
subject to the exclusive jurisdiction of the Louisiana Civil
Service Commission (“CSC”). Rec. Doc. 60-1 at 4. Apparently, the
CSC conducted several hearings regarding Plaintiff’s case from
April 2016 through January 2017. Id.5
In response, Plaintiff admits that she is a classified civil
service employee and that the CSC rules limit the claims of such
employees. Rec. Doc. 74 at 3. She specifically admits that the CSC
has “exclusive authority as it involves reinstatement appeals
positions,” but argues that the CSC does not have exclusive
jurisdiction over her damages claims. Id. at 7. To that end, she
argues that neither the Louisiana Constitution nor the CSC rules
prohibit judicial litigation for “racial and age and disability
Defendants also note that Plaintiff sought a temporary restraining order from
the Orleans Parish Civil District Court in an attempt to enjoin Defendants from
terminating her employment, but Plaintiff eventually withdrew the claim. Rec.
Doc. 60-1 at 4.
claims].” Id. at 5. Thus, Plaintiff admits that this Court lacks
subject matter jurisdiction over her request to be reinstated, but
maintains that we have jurisdiction over her remaining claims for
damages. Even though this argument is not abundantly clear from
the parties’ filings, it is consistent with the law.
In Kenyatta-Bean v. Housing Authority of New Orleans, the
defendant argued “that the plaintiffs’ state law claims that they
did not receive the appropriate merit pay increases” should have
been brought before the CSC. No. 04-2592, 2005 WL 3543793, at *4
(E.D. La. Nov. 18, 2005). The district court recognized that
Article 10 of the Louisiana Constitution vests the CSC with general
service. Id.; see also LA. CONST. ANN. art. X, § 12 (providing that
the CSC “shall have the exclusive power and authority to hear and
decide all removal and disciplinary cases” and that appeals are to
be taken to the court of appeals in which the CSC is located).
Thus, “employment related claims by classified employees must be
presented to the [CSC], and this court is without jurisdiction to
entertain such claims.” 2005 WL 3543793, at *4 (citations omitted).
Further, article X, section 8(B) of the Louisiana Constitution
specifically provides that “[n]o classified employee shall be
discriminated against because of his . . . race. A classified
employee so discriminated against shall have the right of appeal
to the appropriate commission pursuant to Section 12 of this Part.”
Thus, in a case cited by Plaintiff, the Louisiana First Circuit
explained “that the constitution limits the jurisdiction of the
CSC to two categories of claims:
(1) discrimination claims
provided for in § 8(B); and (2) removal or disciplinary claims
provided for in §§ 12(A) & 8(A).” St. Romain v. State, through
Dep’t of Wildlife & Fish, 03-0291 (La. App. 1 Cir. 11/12/03); 863
So. 2d 577, 583, writ denied sub nom., 04-0096 (La. 3/26/04); 871
So. 2d 348.
Based on these rules, a federal district court from the Middle
District of Louisiana held that “the CSC has exclusive jurisdiction
over termination claims, including termination claims based on
disability discrimination.” Pike v. Office of Alcohol & Tobacco
Control of the La. Dep’t of Revenue, 157 F. Supp. 3d 523, 540 (M.D.
jurisdiction over the plaintiff’s state law general tort claims
“because the CSC has no authority to provide for general tort
damages.” Id. at 542. See also McCain v. City of Lafayette, 981902, pp. 14-15 (La. App. 3 Cir. 5/5/99); 741 So. 2d 720, 728,
writ denied, 99-1578 (La. 9/17/99); 747 So. 2d 563 (holding that
the civil service board does not have exclusive jurisdiction to
hear those cases in which the remedy could not be awarded by the
board; thus, the plaintiff’s claims for damages due to loss of
benefits, remedies that could be awarded by the board for wrongful
termination, should have been brought before the board, but claims
for general damages and loss of business reputation were properly
raised before the state district court); Westmoreland v. La. Dep’t
of Health & Hosps., 99-651 (La. App. 3 Cir. 6/1/99); 735 So. 2d
944, writ denied, 99-1884 (La. 10/8/99); 751 So. 2d 222 (denying
writs because the plaintiff did not attempt to circumvent the CSC’s
exclusive jurisdiction; “[a]lthough the allegedly tortious conduct
of defendants is connected to the disciplinary action taken against
defamation which is not within the jurisdiction of the [CSC]”).
request for reinstatement. Rec. Doc. 78 at 4-5. This Court agrees
with that assessment of the law. Even though the CSC exercises
jurisdiction over race discrimination and removal and disciplinary
claims (which apparently apply to all of Plaintiff’s claims for
discrimination, hostile work environment, retaliation, and so
forth). Therefore, this Court grants Defendants’ motion under Rule
56 to dismiss Plaintiff’s claim for reinstatement.
C. PLAINTIFF’S TITLE VII AND ADA CLAIMS6
Where there is no direct evidence of discrimination, courts
use the burden-shifting framework articulated by the Supreme Court
in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04
(1973) to analyze a plaintiff’s claims for discrimination and
retaliation. Smith v. City of St. Martinville, 575 F. App’x 435,
438 (5th Cir. 2014) (citations omitted). “Under this framework, a
plaintiff first must raise a genuine issue of material fact as to
each element of a prima facie case.” Id. (citation omitted).
To establish a prima facie case of discrimination under
the McDonnell Douglas framework, a plaintiff must show
that “(1) [s]he is a member of a protected class, (2)
[s]he was qualified for the position at issue, (3) [s]he
was the subject of an adverse employment action, and (4)
[s]he was [replaced by someone outside her protected
group or] treated less favorably . . . than were other
similarly situated employees who were not members of the
protected class, under nearly identical circumstances.”
Id. (quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th
Cir. 2009)); see also Fahim v. Marriott Hotel Servs., Inc., 551
F.3d 344, 350 (5th Cir. 2008).
To establish a prima facie case for claims arising under the
ADA, Plaintiff must show that (1) she has a disability, (2) she is
qualified for the job she held, and (3) she was subject to an
Title VII and the ADA hold “employers” liable and, even though a
may be an “employer,” he or she “cannot be held liable in his [or her]
capacity, only in his [or her] official capacity as an agent of the
Williamson v. Am. Nat’l Ins. Co., 695 F. Supp. 2d 431, 440 n.7 (S.D.
(citing Grant v. Lone Star Co., 21 F.3d 649, 652-53 (5th Cir. 1994)).
any such claims against Defendants Jernigan or Copeland in their
capacities are dismissed with prejudice.
adverse employment action because of her disability. E.E.O.C. v.
LHC Grp., Inc., 773 F.3d 688, 695 (5th Cir. 2014) (citations
To establish a hostile work environment claim, Plaintiff must
prove that (1) she belongs to a protected group; (2) she suffered
unwelcome harassment; (3) the harassment was based on a prohibited
privilege of employment;” and (5) “the employer knew or should
have known of the harassment . . . and failed to take prompt
remedial action.” Mitchell v. Snow, 326 F. App’x 852, 856 (5th
Cir. 2009) (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th
Finally, “[t]o establish a prima facie claim of retaliation
. . . a plaintiff must demonstrate (1) participation in a protected
activity; (2) an adverse employment action; and (3) a causal link
between the activity and the adverse action.” Haire v. Bd. of
Sup’rs of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 367
(5th Cir. 2013). See also White v. Denton Cty., 655 F. App’x 1021,
1024 (5th Cir. 2016) (citing Hagan v. Echostar Satellite, L.L.C.,
529 F.3d 617, 624 (5th Cir. 2008)).
discrimination or retaliation, the burden shifts to the employer
to “‘articulate some legitimate, nondiscriminatory reason’ for the
adverse employment action.” Smith, 575 F. App’x at 438 (citations
omitted). If the employer makes this showing, the burden shifts
back to the employee to show “either (1) that the proffered reason
discrimination, or (2) that the reason, while true, is only one of
the reasons for [the employer’s] conduct, and another motivating
factor is the plaintiff’s race,” disability, or participation in
a protected activity. Id. (citations and quotation marks omitted);
LHC Grp., 773 F.3d at 694 (citation omitted); Haire, 719 F.3d at
367 (citation omitted).
complaints present genuine issues of material fact. Rec. Doc. 74
at 16-23. Both of her complaints were verified. See Rec. Docs. 1
at 25; 53 at 35-36. According to the Fifth Circuit, a party’s sworn
pleadings may be considered competent summary judgment evidence.
See Higgins v. Morris, 673 F. App’x 376, 378 n.3 (5th Cir. 2016)
(citing Falcon v. Holly, 408 F. App’x 325, 326 (5th Cir. 2012);
Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003); King v. Dogan,
31 F.3d 344, 346 (5th Cir. 1994); 28 U.S.C. § 1746(2)).
To establish a prima facie case for race discrimination,
Plaintiff must show that she is a member of a protected group, she
was qualified for the position, she suffered an adverse employment
protected group or treated less favorably than similarly situated
employees outside the protected group. Here, Plaintiff’s complaint
implies that she is African American. See Rec. Doc. 53 at 11
(alleging that there “existed a palpable racial animus against her
and other Black employees”) (emphasis added). So, she satisfies
the first prong. She also alleged that she was a civil service
employee with an “unimpeachable” record for thirty-one years,
thereby arguably satisfying the second prong. See id. at 20. Her
complaint also contains a few allegations that could be construed
as adverse employment actions.
First, she avers that she was subject to an “illegal . . .
position transfer.” Rec. Doc. 53 at 17. Specifically, she states
that she was no longer “acknowledged as the ‘parking expert.’” Id.
For Title VII discrimination claims, only “ultimate employment
actions” are considered actionable adverse employment actions.
McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007)
(citations omitted). An ultimate employment decision includes
promoting, or compensating.” Id. at 559 (quoting Green v. Adm’rs
of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002), as amended
on denial of reh’g & reh’g en banc. Based on Plaintiff’s complaint.
There is no reason to believe that no longer being recognized as
“the expert” is an “ultimate employment decision.” Plaintiff does
not allege that this was an official title or position or otherwise
allege that she was demoted. Plus, Defendant Jernigan specifically
testified that Plaintiff was not removed as a voting member of the
committee on which she served, suggesting that she was not demoted.
Rec. Doc. 60-3 at ¶ 5. Without more, an allegation that she was no
longer acknowledged as an expert is insufficient to satisfy the
Second, she alleges that her work product was “dismissed.”
Rec. Doc. 53 at 18. Specifically, she stated that
The CPO directed [Plaintiff] to conduct reference checks
for each of the shortlisted vendors. However, upon
presenting the reference checks during a Selection
Committee meeting, [Plaintiff’s] work product were [sic]
dismissed and questioned by the Technical Review
Committee even though all sources contacted were
credible. It was noted that 80 percent of these reference
checks showed that the Technical Review Committee’s preselected vendor had a history of poor performance . . .
. [Plaintiff’s] review found that the Technical Review
Committee’s pre-selected vendor’s pricing was over $916K
Administrative Officer, Andrew Kopplin, openly dismissed
[Plaintiff’s] findings and tasked the Technical Review
Committee with presenting additional information for the
Selection Committee to consider. This action by Kopplin
was made in hostility to [Plaintiff], dishonored her
work product and efforts, diminished her stature in the
workplace, alienated her and reduced her authority, and
ultimately caused another unnecessary delay with
selecting a new vendor.
decision. Plaintiff does not allege that she was demoted. In fact,
her allegations merely suggest that the committee wanted to doublecheck her work before moving forward.
terminated. Rec. Doc. 53 at 23-24, 27-30, 32-34. This does amount
to an adverse employment action. However, Defendants argue that
Plaintiff was replaced by an African American applicant. See Rec.
Doc. 60-1 at 8-9. Even though Defendants do not support this
argument with evidence, it is Plaintiff’s burden to establish a
prima facie case and she has failed to even allege that she was
replaced by someone outside the protected class. She also failed
to establish that she was treated less favorably than similarly
situated employees. The closest she gets is alleging in her amended
complaint that there “existed a palpable racial animus against her
and other Black employees . . . .” Rec. Doc. 53 at 11. This is a
conclusory allegation. At this stage of the proceedings, Plaintiff
should be able to produce a factual basis for her claims.
Defendants explained the basis for Plaintiff’s termination in both
a written letter addressed to Plaintiff and in Defendant Jernigan’s
because a June 2015 OIG Report noted that she was uncooperative
and unresponsive during an investigation, she interfered with a
against a co-worker, she retaliated against another co-worker, and
authorization. Rec. Doc. 60-9 at 1. Defendant Jernigan’s affidavit
corroborates the letter. Rec. Doc. 60-3. These appear to be
legitimate, nondiscriminatory reasons for Plaintiff’s termination
and Plaintiff has failed to show that these reasons are unworthy
of credence or that she was also terminated because of her race.
As to Plaintiff’s claims of disability discrimination, the
amended complaint merely alleges that the city violated the ADA
“by failing to forebear the proceedings involving her January 11,
2016 Termination until after she was recovered from her multiple
surgeries and allowed to recover to an extent where she could
proceedings.” Rec. Doc. 53 at 12. Defendants explain that Plaintiff
was referring to pre-termination hearings scheduled in the fall of
2015. Rec. Doc. 60-1 at 10. According to Defendants, Plaintiff
“demanded a continuance of the [30-40 minute] pre-termination
hearing on five or six occasions, often making a last minute phone
call to demand a continuance less than an hour before the scheduled
hearing.” Id. While the first five requests for a continuance were
granted, Defendant Jernigan proceeded with the sixth scheduled
hearing in December of 2015. Id.
Even though Plaintiff refers to numerous surgeries, she fails
to detail the type of surgery or any underlying illness or injury.
She makes conclusory allegations of discrimination based on some
unknown disability, but ultimately completely fails to allege that
she has a disability recognized under the ADA.
Turning to the hostile work environment claim, Plaintiff has
arguably alleged that she is a member of a protected group and
that she was harassed (again, refer to Plaintiff’s allegation that
statements about the existence of some racial animus or harassment,
she fails to establish that any harassment
affected a term,
condition, or privilege of employment. Plus, plaintiffs “must
subjectively perceive the harassment as sufficiently severe or
pervasive, and this subjective perception must be objectively
reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.
2003) (emphasis added) (citing Harris v. Forklift Sys., Inc., 510
U.S. 17 (1993)). “The fact-finder must consider the frequency of
the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and whether it unreasonably interferes
Thompson, 214 F.3d 615, 625 (5th Cir. 2000)). Here, even if
Plaintiff subjectively believed the harassment was severe and
perception was objectively reasonable.
As to Plaintiff’s retaliation claim, Defendants argue that
the only possible protected activity alleged by Plaintiff is her
whistleblower claim previously dismissed by this Court. Rec. Doc.
memorandum, Plaintiff repeats the facts allegedly giving rise to
the whistleblower claim included in her original complaint. Rec.
Doc. 74 at 7-10. She argues that after she was “read the ‘riot
act’ for her open objections to the unethical process to select a
vendor . . . and it was strongly recommended that she ‘stop sending
emails about this issue,’” she suffered retaliation because she
was no longer considered the city’s curb management expert and her
work product was dismissed. Id. at 10-11.
In the retaliation context, an adverse employment decision
includes “any action that ‘might well have dissuaded a reasonable
worker from making or supporting a charge of discrimination.’”
McCoy, 492 F.3d at 559 (quoting Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006)). Thus, assuming that Plaintiff’s
alleged attempts to expose conflicts of interest and corruption
constitute protected activities, her allegations that she was no
longer recognized as an expert, her work was undermined, and that
she was wrongfully terminated could each, arguably, constitute
adverse employment actions. However, Plaintiff fails to establish
that these things are causally related. The first problem is that
Defendants note that the only other possible protected activity is Plaintiff’s
“claim that [her] authority was ‘diminished’ by Ms. Copeland’s act of speaking
directly to the parking staff employees at roll calls about Human Resources
issues such as promotions.” Rec. Doc. 60-1 at 11. It is entirely unclear to the
Court how Plaintiff’s “diminished authority” could qualify as a protected
her complaints do not provide an adequate timeline of events. She
merely alleges that the selection committee convened in 2012, she
was terminated in January of 2016, and presumably sometime during
the intervening four-year period she was no longer considered an
expert and her work was undermined. However, we also know that
Plaintiff’s termination. Plaintiff completely failed to address
these reasons. Thus, she failed to establish that the offered bases
for any adverse employment action are unworthy of credence or that
they were only some of the reasons for any such actions, in
addition to retaliation for participation in a protected activity.
D. PLAINTIFF’S DEFAMATION CLAIMS
To prove defamation in Louisiana, the plaintiff must prove
“(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) resulting
injury.” Perez v. City of New Orleans, 173 F. Supp. 3d 337, 353
(E.D. La. 2016) (citing Costello v. Hardy, 03-1146, p. 11 (La.
1/21/04); 864 So. 2d 129, 139). Louisiana courts have found that
“to plead material facts, a petitioner alleging a cause of action
for defamation must set forth in the petition with reasonable
specificity the defamatory statements allegedly published by the
defendant.” Fitzgerald v. Tucker, 98-2313 (La. 6/29/99); 737 So.
2d 706, 713 (citations omitted).
Jernigan and Copeland “worked to fabricate a perception that
[Plaintiff] was not competent or capable of properly or competently
performing her job . . . [and] [t]hese fabrications, as well as
the public record now rife with accusations of her alleged grounds
for termination, as well as her termination, are each separate
items of defamation . . . .” Rec. Doc. 53 at 12-13.
Defendants assume Plaintiff is referring to the grounds for
termination asserted in her notice of termination letter and note
that city employers are required to “state the reasons for any
disciplinary action, including termination, in writing to any
classified employee within five days of the effective date of the
disciplinary action.” Rec. Doc. 60-1 at 15 (citing Civil Service
Rule IX, Section 1.3, which provides that “[i]n every case of
termination . . . of any employee in the classified service . . .
within five (5) working days of the effective date of the action,
the appointing authority shall furnish the employee . . . a
statement in writing of the reasons therefor”).8 Defendants note
that this termination letter was sent directly to Plaintiff and
provided to the civil service, as required by civil service rules,
and therefore was not published to a third party. Id. at 16.
These rules are available for download at the City of New Orleans website,
identify any specific statement that she believes was defamatory.
The Court agrees with Defendants’ assessment that the only
specific statements identified by Plaintiff are those regarding
the basis for her termination. Therefore, these are the only
statements that will be considered by the Court. However, Plaintiff
has produced no evidence that these statements are false. In fact,
she has completely failed to specifically address the various
reasons given for her termination in either the termination letter
or Defendant Jernigan’s affidavit. It was Plaintiff’s burden to
produce evidence of defamation and she failed to satisfy that
III. PLAINTIFF’S RULE 60 MOTION
Plaintiff argues that this Court improperly dismissed her age
discrimination claims on the mistaken belief that, even though
those claims were asserted in her first EEOC charge, they were not
alleged in her original complaint. Rec. Doc. 62 at 1-2 (citing
Rec. Docs. 1 at 19; 38 at 8).
Under Federal Rule of Civil Procedure 60(b)(1), “[o]n motion
and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for .
. . mistake, inadvertence, surprise, or excusable neglect . . . .”
FED. R. CIV. P. 60(b)(1). Such a motion “must be made within a
reasonable time—and . . . no more than a year after the entry of
the judgment or order or the date of the proceeding.” FED. R. CIV.
P. 60(c)(1). However, motions to reconsider are “extraordinary”
remedies and are “not the proper vehicle for rehashing evidence,
legal theories, or arguments that could have been offered or raised
before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d
473, 479 (5th Cir. 2004) (citations omitted). Ultimately, these
motions “are directed to the sound discretion of the district
court, and their denial will be set aside only for abuse of
discretion.” United States v. Cornejo, No. 16-20547, 2017 WL
629276, at *1 (5th Cir. Feb. 15, 2017) (citing Smith v. Alumax
Extrusions, Inc., 868 F.2d 1469, 1471 (5th Cir. 1989)).
rambling twenty-four pages. However, on page 19, in section XI,
Plaintiff alleged the following:
discrimination in employment, hostile work environment,
all cited above, along with resulting injuries sustained
by your Petitioner Zepporiah Edmonds, were caused
solely, directly, and proximately through the fault of
the defendants, City of New Orleans, Mark D. Jernigan
and Linda Copeland, and any potentially [sic] other
supervisors or co-workers, and by lawful extension their
insurers, in the following particulars:
A. Defendant City of New Orleans’ failure to
maintain proper vigilance and supervision of its
supervisory employees Mark D. Jernigan and Linda
illegally targeted your petitioner for a groundless
and baseless pattern of harassment, defamation and
slander, blatant and open age discrimination,
eventual wrongful termination, and created a
hostile working environment prior to the wrongful
termination . . . .
Rec. Doc. 1 at 19 (emphasis added). This is the only time in the
complaint that Plaintiff alleges age discrimination. Otherwise,
the complaint does not allege any facts that could possibly be
construed as giving rise to a claim for age discrimination.
After this Court’s July 27, 2016 Order, Plaintiff had an
opportunity in her original motion for reconsideration under Rule
59(e) to alert the Court to its mistaken belief that the original
complaint did not allege age discrimination. See Rec. Doc. 39.
Instead, apparently also unaware that the complaint contained this
single reference to age discrimination, Plaintiff informed the
Age Discrimination were [sic] not included as part of
her Federal lawsuit in an oversight, and plaintiff seeks
leave to amend her Federal lawsuit to add this claim and
have this Court via this motion allow amendment that
would allow the same. The inclusion of the claims of Age
Discrimination in the EEOC Complaint predicate to this
Federal lawsuit and the mere oversight of omitting same
from her Federal lawsuit, should not bar that claim given
her predicate explanation and claim made to the EEOC, as
well as her Federal lawsuit and complaint allowing
claims for Disability Discrimination and Wrongful
Rec. Doc. 39-1 at 7.
Further, while Plaintiff’s original EEOC charge alleged age
discrimination in a conclusory fashion (see Rec. Doc. 60-4 at 1),
neither of her other two EEOC charges allege age discrimination
(see Rec. Docs. 60-7 at 1-2; 60-8 at 1).
Plaintiff previously had an opportunity to alert the Court to
the age discrimination allegation in the original complaint. A
second motion for reconsideration, set for submission less than
three weeks before the final pretrial conference, is not the
appropriate vehicle for rehashing arguments that could have been
More importantly, though, even if the Court were inclined to
grant Plaintiff’s motion and recognize the age discrimination
claim alleged in the original complaint, the claim would fail to
survive Defendants’ pending motion for summary judgment. Like
other forms of discrimination, Plaintiff would have to
establish a prima facie case of age discrimination by
showing that (1) [s]he was discharged; (2) [s]he was
qualified for the position; (3) [s]he was within the
protected class at the time of discharge; and (4) [s]he
was either i) replaced by someone outside the protected
class, ii) replaced by someone younger, or iii)
otherwise discharged because of [her] age.
Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir.
2015) (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 350
(5th Cir. 2005)). The burden then shifts to the employer to provide
a legitimate, nondiscriminatory basis for the termination. Id.
(citing Machinchick, 398 F.3d at 350). Then, the employee must
prove by a preponderance of the evidence that the reasons offered
by the employer were a mere pretext. Id. (quoting Squyres v. Heico
Cos., L.L.C., 782 F.3d 224, 231 (5th Cir. 2015)). Here, Plaintiff
has produced no evidence that the offered bases for her termination
were mere pretexts. Therefore, granting Plaintiff’s motion to
reinstate her age discrimination claim would be futile.
PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL
Plaintiff seeks to disqualify Elizabeth Robins, lead counsel
for Defendants, because Plaintiff listed Ms. Robins as a “vital
witness in testing the credibility of certain defendants named
herein, given the plainrtiff [sic] recently coming into possession
of voice recordings that include certain defendants and Ms. Robins
which will be important to the plaintiff’s claims heard herein .
. . .” Rec. Doc. 63 at 2. Apparently, there are “voice mail tapes
legally recorded by third parties that were in conversations with
Ms. Robins, who recorded her disparaging and questioning the
accuracy, memory, competence and credibility of those defendants
personally named defendants here . . . .” Id.
Defendants respond that Plaintiff never called Ms. Robins as
a witness during the hearings before the CSC in the fall of 2015
or during the ten months of appeal hearings from March of 2016
through January of 2017. Rec. Doc. 71 at 1. They also argue that
any communications between Ms. Robins and DPW employees, including
Defendants Jernigan and Copeland, are subject to attorney-client
privilege. Id. at 2.
disqualify are substantive motions affecting the rights of the
parties and are determined by applying standards developed under
federal law.” In re Am. Airlines, Inc., 972 F.2d 605, 610 (5th
Cir. 1992) (emphasis in original) (citations omitted). “Federal
courts may adopt state or ABA rules as their ethical standards,
but whether and how these rules are to be applied are questions of
federal law.” Id. Thus, “disqualification cases are governed by
F.D.I.C. v. U.S. Fire Ins. Co., 50 F.3d 1304, 1312 (5th Cir. 1995)
(quoting Am. Airlines, 972 F.2d at 605). However, while these
disqualify, they are not controlling.” Id. at 1314.
“In general, it has been a long-standing ethical rule that an
attorney may not serve as both an advocate and a witness in the
same litigation.” P & J Daiquiri Café, Inc. v. Andrew K. Knox &
Co., No. 07-6617, 2008 WL 731030, at *1 (E.D. La. Mar. 17, 2008)
(citing F.D.I.C., 50 F.3d at 1311 & n.8). When considering a motion
to disqualify under this rule, district courts should generally
consult the Local Rules, the rules governing attorneys practicing
Association’s Rules of Professional Conduct), and the American Bar
Association’s Model Rules of Professional Conduct. Id. (citations
omitted); see also CEF Funding, L.L.C. v. Sher Garner Cahill
Richter Klein & Hilbert, L.L.C., No. 09-6623, 2010 WL 2773116, at
*1 n.11 (E.D. La. July 9, 2010). Local Rule 83.2.3 adopts the
Louisiana Rules, which, in this case, reflect the Model Rules.
Nonetheless, “[c]ourts are cautioned that they should apply the
rules related to disqualification flexibly, and should take into
account the social interests at stake including the right of a
party to its counsel of choice and an attorney’s right to freely
practice her profession.” P & J Daiquiri Café, 2008 WL 731030, at
*3 (citation omitted).
Rule 3.7 of the Louisiana
Rules provides, in
relevant part, that “a lawyer shall not act as advocate at a trial
in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue; . . . or (3)
disqualification of the lawyer would work substantial hardship on
the client.” To determine if a lawyer is likely to be a “necessary
witness,” the party moving for disqualification generally must
show (1) “[t]he attorney will give evidence material to the
determination of the issues being litigated;” (2) “[t]he evidence
attorney’s client.” Crutchfield v. Ringler Assocs. New Orleans,
Inc., No. 01-2720, 2002 WL 726646, at *3 (E.D. La. Apr. 24, 2002)
(quoting Michel v. Miller, No. 97-2419, 1998 WL 42887, at *3 (E.D.
La. Jan. 30, 1998)).
Here, Plaintiff provides little information regarding the
content of these tapes, other than to suggest that they may
undermine Defendants’ credibility. Thus, even though Plaintiff has
alleged that the evidence is prejudicial to Defendants, it is
unclear whether or not these tapes would be admissible in light of
attorney-client privilege. In any event, Plaintiff’s motion is
rendered moot by the fact that the Court is granting Defendants’
motion to dismiss Plaintiff’s claims.
IT IS ORDERED that Defendants’ motion (Rec. Doc. 60) is
GRANTED. At this stage of the proceedings, Plaintiff should be
able to produce more than her own self-serving testimony from her
verified original and amended complaints. Yet, she fails to produce
such evidence to establish prima facie cases for each of her
claims. In other words, Plaintiff failed to present a genuine issue
of material fact under Rule 56. Therefore, Plaintiff’s claims are
DISMISSED WITH PREJUDICE.
reconsideration (Rec. Doc. 62) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion to disqualify
counsel (Rec. Doc. 63) is DISMISSED AS MOOT.
New Orleans, Louisiana, this 19th day of June, 2017.
SENIOR UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?