McKey v. August et al
ORDER granting 25 Motion to Dismiss without prejudice. The plaintiff can amend her complaint within 14 days if she chooses to do so. Signed by Judge Martin L.C. Feldman on 2/23/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SUSAN DILLARD MCKEY
ROBERTA ZENO AUGUST, ET AL.
ORDER AND REASONS
Before the Court is St. John the Baptist Library Board of
Control’s motion to dismiss.
For the reasons that follow, the
motion is GRANTED without prejudice.
This civil rights lawsuit by a former employee of St. John
the Baptist Parish Library concerns allegations of reverse racial
insurance coverage without due process of law.
The plaintiff, Susan McKey, joined the St. John the Baptist
Parish Library (“Library”) as an Assistant Director in 1986.
2013, McKey alleges that certain African-American administrators
at the Library began to single her out for scorn and harass her
contentious atmosphere at the Library, McKey enrolled in the
Deferred Retirement Option Plan (“DROP”) available to her because
Parochial Employee’s Retirement System of Louisiana (“PERSLA”).1
McKey, eligible, because of her 25 years of employment at the
Library, purchased $32,000 in necessary retirement credits to
enter DROP in September 2013.
She expected to fully retire in
On June 20, 2014, Roberta Zeno August, an African-American,
became Director of the Library.
According to McKey, August’s
hostility” and racial animus toward her.
After Ingrid Depland, an
African-American employee, filed her third grievance in a year
against McKey, August issued McKey a formal warning and demoted
her from Head of Technical Services.
McKey had served in that
capacity for more than a decade.
On April 8, 2015, McKey fell asleep at her desk. Despite
McKey’s insistence that she suffered from sleep apnea, August
issued a second formal warning to McKey and met with her and Tammy
Houston, another African-American Library employee, to discuss a
possible change in McKey’s job responsibilities.
On April 29,
Entry into DROP calculates an eligible employee’s accrued pension
benefits and accumulates them with the retirement system while
permitting the employee to continue working for a default threeyear period. The pension benefit is calculated as if the employee
is actually retiring.
Cataloger/Acquisitions Librarian and cut her salary.
thereafter assumed the role of Assistant Director.
night, McKey “partially” cleaned out her office and removed copies
of Library documents.
The next week, McKey requested a three-month leave of absence,
citing severe medical conditions she alleges were aggravated by
the racially hostile work environment to which she had been
subjected for the preceding two years. On May 7, 2015, after McKey
had just begun her leave, August sent a letter threatening to call
the authorities on McKey unless she returned the documents she
took home from her office on April 29.
On May 13, McKey complied,
sending a certified letter itemizing the returned documents and
On May 27, 2015, August terminated McKey’s employment and
health insurance benefits.
The Library then informed McKey, who
had fully vested in her retirement benefits, that she would need
to complete the requisite retirement paperwork to begin receiving
However, McKey was also informed that St. John the
separation as a termination rather than a retirement.
at the behest of August and Houston, the St. John the Baptist
Parish Sheriff’s Office began conducting a criminal investigation
into McKey’s April 29 taking of documents from the library.
August 5, 2015, McKey was arrested and charged with a felony for
Injuring Public Records.
On August 5, 2016, Ms. McKey filed suit against August, St.
John the Baptist Library Board of Control, and St. John the Baptist
She alleges that Ms. August, an African-
American, is liable under 42 U.S.C. § 1981 for creating a hostile
work environment and discriminating against her based on her
Ms. McKey also alleges that the Library Board is
liable under 42 U.S.C. § 1983 for violating Article I, § 10, the
Fourteenth Amendment of the U.S. Constitution, Article I, § 23 of
the Louisiana Constitution and Article I, § 2 of the Louisiana
Constitution by denying her continued family health insurance
coverage allegedly promised to her.
On October 3, 2016, Ms.
McKey’s claims against the Sheriff’s Office for false arrest and
imprisonment were dismissed.
The Library Board now seeks to
dismiss her remaining claims against it.
In her response to the
motion to dismiss, McKey also voluntarily withdrew her claims
alleging a violation of Article I, § 10 of the U.S. Constitution
and Article I, § 23 of the Louisiana Constitution.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”
See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)).
But, in deciding whether dismissal is
warranted, the Court will not accept conclusory allegations in the
complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
Id. at 679.
“Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as
other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
Funk v. Stryker Corp., 631 F.3d 777, 783 (5th
Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)).
Title 42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under
color of state law; it provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
... subjects, or causes to be subjected, any ... person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
To establish § 1983 liability, the plaintiff must satisfy three
Constitution or federal law, (2) that occurred under color of state
law, and (3) was caused by a state actor. Victoria W. v. Larpenter,
369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).
The plaintiff has voluntarily withdrawn her claims under
Article 1, § 10 of the U.S. Constitution and Article 1, § 23 of
focuses solely on whether the plaintiff has failed to adequately
plead a due process violation under the Fourteenth Amendment.2
No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of
life, liberty, or property, without due process of
U.S. Const. amend. XIV. Here, the plaintiff alleges that the
Library Board has deprived her of her property right to the
promises to retired employees.
To demonstrate the existence of a
property interest triggering Fourteenth Amendment protection, a
person must have a “legitimate claim to entitlement” to the
interest grounded in an “independent source such as state law.”
“The Louisiana Constitution provides the same due process
protections as that of the United States Constitution.” Cripps v.
La. Dept. of Agric. and Forestry, 819 F.3d 221, 232 (5th Cir.
2016). If the plaintiff has failed to plead that her due process
was violated under the Fourteenth Amendment, then, it follows that
she has failed to state a claim under Article I, § 2 of the
Louisiana Constitution. Accordingly, the Court’s analysis under
the Fourteenth Amendment sufficiently addresses the plaintiff’s
state constitutional claim.
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
A state violates the Fourteenth Amendment by destroying such a
Zimmerman Brush Co., 455 U.S. 422, 434 (1982).
McKey asserts that, as a participating member in the PERSLA
legitimate claim of entitlement to the continuing health insurance
family coverage typically provided to Library retirees by St. John
the Baptist Parish.
In support of her claim, McKey points to the
St. John the Baptist Library Policies & Procedures Manual, which
states that the Library pays 100 percent of its insurance benefits
Parochial Employees Retirement System of Louisiana.”
The Library Board attempts to frame McKey’s claim as one for
the deprivation of her property right to continued employment with
To hold a property right in continued employment, an
employee must show either that (1) the employment could only be
terminated for cause or (2) the employee is a permanent classified
employee under the Louisiana Civil Service System (LCSS).
v. Shreve Mem’l Library, 79 F.3d 427, 429 (5th Cir. 1996).
McKey was an at-will employee not classified under the LCSS, the
affording her due process.
However, the plaintiff’s complaint targets the deprivation of
Louisiana Supreme Court has held that “when an employer promises
a benefit to employees, and employees accept by their actions in
meeting the conditions, the result is not a mere gratuity or
illusory promise but a vested right in the employee to the promised
Knecht v. Bd. of Trs. for State Colls. & Univs., 591
So. 2d 690, 695 (La. 1991).
The proper inquiry for the Court
therefore consists of determining: (1) whether the Library Board
“promised” McKey continuing family health insurance coverage and
(2) whether McKey, through her actions, fulfilled the requirements
for receiving the benefit.
The Library Board cites several cases suggesting that the
language in an employment manual or handbook cannot impose a
contractual obligation on the employer.
See Wallace, 79 F.3d at
430-31; Adams v. Autozoners, Inc., No. Civ.A. 98–2336, 1999 WL
744039, at *5-6 (E.D. La. Sept. 23, 1999); Square v. Hampton, 144
So. 3d 88, 98-99 (La. App. 4 Cir. 6/4/14); Leger v. Tyson Foods,
Inc., 670 So. 2d 397, 401-02 (La. App. 3 Cir. 1/31/96); Wall v.
Tulane Univ., 499 So. 2d 375, 375-76 (La. Ct. App. 4th Cir. 1986).
The Board also points to a provision in the Manual which states:
Neither this manual or any of the policies and practices
included is intended as an employment contract (express
or implied) and accordingly should not be considered as
such. Nothing in this manual should be relied upon as a
guarantee for certain privileges, working conditions or
However, the cases on which the defendant relies largely
comprise summary judgment dismissals, rather than dismissals for
failure to state a claim of claims by plaintiffs who attempted to
use manual and handbook policies to alter the character of at-will
See Adams, 1999 WL 744039; Square, 144 So.
3d 88; Leger, 670 So. 2d 397; Wall, 499 So. 2d 375.
line of Louisiana cases supports the proposition that a manual
provision can signify the promise of a benefit to an employee.
Fairbanks v. Tulane University, for instance, the son of a deceased
Tulane faculty member claimed that the university owed him a
tuition waiver pursuant to a provision in the 1986 Tulane Faculty
731 So.2d 983, 984 (La. App. 4 Cir. 3/31/99).
Louisiana Fourth Circuit reversed a summary judgment dismissal of
the claim by the son of a deceased Tulane faculty member that the
university owed him a tuition waiver pursuant to a provision in
the 1986 Tulane Faculty Handbook.
Id. at 990-91.
its earlier decision in Wall v. Tulane University as one focused
on the “employment at will” doctrine, the Fourth Circuit in
Fairbanks held that sufficient evidence had surfaced to support
the plaintiff’s assertion that faculty members relied on the
Handbook as an assurance that, upon death, their children would
receive tuition waivers from the school.
See id. at 985, 988.
Because “that condition [of death] was met, the children and spouse
of the deceased acquired a property interest in the benefit of
Id. at 990; see also Granger v. Christus Health
employment manual or handbook, which governs other aspects of the
alter terms of employment established outside such a document,
such as the duration of the relationship. However, it should be
noted that employment benefits delineated in an employment manual
Moreover, Louisiana courts have held in decisions such as
Jones v. City Parish of Baton Rouge that an employer’s “long
standing policy” of conferring a benefit can vest an employee who
meets the attendant requirements with a property interest in the
526 So. 2d 462, 464-65 (La. Ct. App. 1st Cir. 1988);
see also Ledoux v. City of Baton Rouge, 755 So. 2d 877, 878-79
(La. 2/29/00) (holding that a memorandum disseminated by the city
which detailed a policy of awarding compensatory leave to employees
qualifying city employee); Finley v. Dep’t of Transp. of Dev., 639
So.2d 431, 433 (La. Ct. App. 4th Cir. 1994) (employer’s overtime
policy gave employee right to expect compensation); cf. Born v.
City of Slidell, 180 So.3d 1227, 1234-35 (La. 10/14/15) (holding
that a city ordinance provision promising a certain retirement
plan entitled a retired employee who fulfilled the prerequisites
to participate in the plan).
At this pre-Rule 56 stage in the
litigation, with the Court obligated to view the facts in the light
most favorable to the plaintiff, McKey has facially articulated
the existence of the Library’s “long standing policy” of paying
out family health insurance to retirees, as stated in the Manual.
However, McKey does not allege in her complaint that she is,
in fact, a retiree.
According to the Manual provision on which
she props up her case, the Library pays 100 percent of its
retirement under the Parochial Employees Retirement System of
While it is undisputed that McKey qualifies for
conveyed that it considers her terminated, not retired.
has McKey alleged that her supervisors and the Library Board ever
considered her to have retired,3 nor has she asserted that the
Library has a “long standing policy” of paying 100 percent of its
The Library Board acknowledges that it is paying McKey the
retirement benefits in which she had vested.
however, provides no basis for the proposition that the receipt of
vested retirement benefits renders an employee “retired” in spite
of a forced separation.
retirement under PERSLA.
By directing the Court’s attention to
qualification in the Manual, she has failed to allege, under
Knecht, that she has met the requirements for a promised benefit.
The plaintiff has thus failed to allege that she has a
Fourteenth Amendment-protected property right to continuing health
insurance benefits as one who retired.
Accordingly, for the
IT IS ORDERED: that the defendant’s motion to dismiss is
GRANTED without prejudice to amend her complaint within 14 days,
if she chooses to do so, being mindful that if she was in fact
terminated, not retired, the provisions of 28 USC §1927 might apply
to this case.
New Orleans, Louisiana, February 23, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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