Malin v. Orleans Parish Communications District

Filing 32

ORDER AND REASONS: IT IS ORDERED that the Defendant's 11 , 18 , 30 Motions to Dismiss are GRANTED. Signed by Judge Ivan L.R. Lemelle on 6/5/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FRITH MALIN

CIVIL ACTION

VERSUS

NO. 16-16465

ORLEANS PARISH COMMUNICATIONS DISTRICT

SECTION “B”(4)

ORDER AND REASONS
I.

NATURE OF MOTION AND RELIEF SOUGHT
Before the court is Defendant Orleans Parish Communications

District’s “Motion to Dismiss for Failure to State a Claim” (Rec.
Doc. 11), “Plaintiff’s Memorandum in Opposition to Motion to
Dismiss for Failure to State a Claim” (Rec. Doc. 12), “Reply
Memorandum in Support of Defendant’s Motion to Dismiss for Failure
to

State

a

Claim”

(Rec.

Doc.

16),

Defendant

Orleans

Parish

Communications District’s “Motion to Dismiss for Failure to State
a Claim in Original, First and Second Supplemental and Amending
Complaint” (Rec. Doc. 18), “Plaintiff’s Memorandum in Opposition
to Defendant’s Motion to Dismiss for Failure to State a Claim in
Original, First and Second Supplemental and Amending Complaint”
(Rec. Doc. 19), “Reply Memorandum in Support of Defendant’s Motion
to Dismiss for Failure to State a Claim in Original, First and
Second

Supplemental

and

Amending

Complaint”

(Rec.

Doc.

22),

Orleans Parish Communications District’s “Motion to Dismiss for
Failure to State a Claim in Original, First, Second and Third

1

Supplemental

and

Amending

Complaint”

(Rec.

Doc.

30)

and

“Plaintiff’s Memorandum in Opposition to Defendant’s Motion to
Dismiss for Failure to State a Claim in Original, First, Second
and Third Supplemental and Amending Complaint” (Rec. Doc. 31).
IT IS ORDERED that the Defendant’s Motions to Dismiss (Rec.
Docs. 11, 18, 30) are GRANTED.
II.

FACTS AND PROCEDURAL HISTORY
Plaintiff,

Frith

Malin,

worked

at

the

Orleans

Parish

Communications District (“OPCD”) for eight years until the OPCD
fired her on July 29, 2016 (Rec. Doc. 1). Plaintiff held the
position of Deputy Director for the OPCD on the date of her
termination (Rec. Doc. 1).
On June 24, 2016, Stephen Gordon, the OPCD Director, sent an
email to all OPCD employees, announcing that a current OPCD board
member, Andy Kopplin, had been named CEO of the Greater New Orleans
Foundation (Rec. Doc. 1). On the same date Plaintiff replied to
Gordon’s email and stated “I’m sure he will do just as good a job
bleeding all these funds dry, just as he has done with the City.
I’m willing to bet he starts charging a higher admin/maintenance
fee to the entities that have funds there. I normally donate to
Franklin via this fund, but won’t do that again.” (Rec. Doc. 1).
Plaintiff

intended

to

only

send

this

message

to

Gordon

but

inadvertently replied all (Rec. Doc. 1). On June 27, 2016, the
OPCD suspended the Plaintiff from her employment while it conducted
2

an internal investigation regarding her email response (Rec. Doc.
1). The OPCD appointed Jeanne Hobson, the OPCD Human Resources
Manager, to conduct the internal investigation and on July 15,
2016 she issued a report entitled “Administrative Investigation of
Frith Malin, Deputy Director.” (Rec. Doc. 1). In her report Jeanne
Hobson recommended that the OPCD terminate Plaintiff and pursuant
to her recommendation the OPCD fired Plaintiff on July 29, 2016
(Rec. Doc. 1).
Plaintiff alleges that in the six or seven months prior to
her termination Jeanne Hobson created a sexually hostile work
environment for her through discussing non-monogamous heterosexual
sexual encounters (Rec. Doc. 29). Plaintiff stated that she then
complained about these sexual comments to Stephen Gordon, the OPCD
Director (Rec. Doc. 29). Plaintiff alleges that her termination
was in retaliation for complaining against Ms. Hobson (Rec. Doc.
6).
Plaintiff filed a “Complaint with Jury Demand” (Rec. Doc. 1),
“Plaintiff’s First Supplemental and Amending Complaint” (Rec. Doc.
6), “Plaintiff’s Second Supplemental and Amending Complaint” (Rec.
Doc.

17)

and

“Plaintiff’s

Third

Supplemental

and

Amending

Complaint” (Rec. Doc. 29). Plaintiff brings claims under (1)
Section 1983, violation of the First Amendment; (2) Title VII
retaliation; and (3) the Louisiana Whistleblower Statute.

3

III. FACTUAL AND LEGAL FINDINGS
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)).
When reviewing a motion to dismiss, courts must accept all
well-pleaded

facts

as

true

and

view

them

in

the

light

most

favorable to the non-moving party. Baker v. Putnal, 75 F.3d 190,
196 (5th Cir. 1996). However, “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its

face.”

Gonzales

2009)(quoting

v.

Ashcroft

Kay,
v.

577
Iqbal,

F.3d
129

600,

603

S.Ct.

(5th
1937,

Cir.
1949

(2009))(internal quotation marks omitted). The Supreme Court in
Iqbal explained that Twombly promulgated a “two-pronged approach”
to determine whether a complaint states a plausible claim for
relief. Iqbal, 129 S.Ct. at 1950. First, courts must identify those
pleadings that, “because they are no more than conclusions, are
not entitled to the assumption of truth.” Id. Legal conclusions
4

“must

be

supported

by

factual

allegations.”

Id.

“Threadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 1949.
Upon identifying the well-pleaded factual allegations, courts
“assume their veracity and then determine whether they plausibly
give rise to an entitlement of relief.” Id. at 1950. A claim has
facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

that

the

defendant is liable for the misconduct alleged.” Id. at 1949. This
is a “context-specific task that requires the reviewing court to
draw

on

its

plaintiffs

judicial

must

experience

“nudge[]

their

and
claims

common
across

sense.”
the

Id.

line

The
from

conceivable to plausible.” Twombly, 550 U.S. at 570.
A. FIRST AMENDMENT CLAIMS
In the Fifth Circuit in order to establish a prima facie case
of First Amendment retaliation, a Plaintiff must demonstrate that
she (1) suffered an adverse employment decision; (2) her speech
involved a matter of public concern; (3) her interest in commenting
on matters of public concern outweighs the Defendant’s interest in
promoting efficiency; and (4) her speech motivated the adverse
employment decision.

Beattie v. Madison County Sch. Dist., 254

F.3d 595, 601 (5th Cir. 2001). Nonetheless, the United States
Supreme Court has held that “when public employees make statements
pursuant to their official duties, the employees are not speaking
5

as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer discipline.”
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
This

Court

finds

that

the

Plaintiff’s

First

Amendment

retaliation claim should be dismissed. The facts alleged do not
satisfy the second requirement to establish a prima facie case.
Plaintiff argues that her speech is protected because she sent the
email “as a private citizen regarding a matter of public concern,
and not as part of her official duties as the Deputy Director of
the OPCD” (Rec. Doc. 1). However this Court has previously ruled
that “Garcetti thus shifted the analytical focus from the content
of speech to the role the speaker occupied when he said it.”
Hartman v. City of New Orleans, Case NO.:12-1929, 2014 U.S. Dist.
LEXIS 6277 at*9 (E.D. La. Jan. 16, 2014) (internal quotations and
citations omitted). The Fifth Circuit has held that when “when a
public employee raises complaints or concerns up the chain of
command at his workplace about his job duties, that speech is
undertaken in the course of performing his job.” Davis v. McKinney,
518 F.3d 304, 313 (5th Cir. 2008). Conversely, “if however a public
employee takes his job concerns to persons outside the work place
in addition to raising them up the chain of command at his
workplace, then those external communications are ordinarily not
made as an employee, but as a citizen." Hartman, 2014 U.S. Dist.
LEXIS 6277, at*10 (internal quotations and citations omitted).
6

Here,

the

Plaintiff,

while

employed

as

an

OPCD

Deputy

Director, sent an organization wide internal email correspondence
stating “I’m sure he will do just as good a job bleeding all these
funds dry, just as he has done with the City. I’m willing to bet
he starts charging a higher admin/maintenance fee to the entities
that have funds there. I normally donate to Franklin via this fund,
but won’t do that again.” (Rec. Doc. 1). There is no allegation
that Plaintiff shared this information with anyone outside of the
workplace. Plaintiff’s allegations referenced in the complaint
reflect that her communication was in response to a change in the
status

of

an

OPCD

board

member,

Andy

Kopplin

(Rec.

Do.

1).

Plaintiff used her work email to transmit her message regarding
Andy Kopplin (Rec. Doc. 1). Furthermore, Plaintiff’s response was
sent only to her fellow co-workers who had received the work
related email and it was not distributed to any third parties (Rec.
Doc. 1). Plaintiff’s speech was made in her capacity as an OPCD
official and not as a private citizen.
Furthermore, the content of the speech was not a matter of
public concern. The Fifth Circuit has held that “speech is not on
a matter of public concern if it is made solely in furtherance of
a

personal

employer-employee

dispute.

Typically,

an

employee

speaks in furtherance of his personal employer-employee dispute
when he discusses personnel matters directly impacting his job or
criticizes other employees or supervisors' job performance.” Salge
7

v. Edna Indep. Sch. Dist., 411 F.3d 178, 187-188 (5th Cir. 2005).
Plaintiff’s criticism of Andy Kopplin’s board performance in her
organization wide email constitute the type of employer-employee
dispute contemplated by the Fifth Circuit. The Fifth Circuit
further explained, “if releasing the speech to the public would
inform

the

populace

of

more

than

the

fact

of

an

employee's

employment grievance, the content of the speech may be public in
nature.” Salge, 411 F.3d 178, 187. In the instant matter releasing
the Plaintiff’s email to the public would not inform the public of
anything aside from the Plaintiff’ displeasure with Andy Kopplin’s
performance on the board.
Based on the allegations of the numerous amended complaints,
this Court finds that this communication constitutes speech that
was undertaken by the Plaintiff during the course of preforming
her job and is not of public concern. Consequently, Plaintiff
cannot establish a prima facie case for First Amendment retaliation
and her claim should be dismissed.
B. TITLE VII RETALIATION CLAIMS
In the Fifth Circuit

a prima facie case of retaliation

requires that a plaintiff must show that “(1) she participated in
a Title VII protected activity, (2) she suffered an

adverse

employment action by her employer, and (3) there is a causal
connection between the protected activity and the adverse action.”
Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 331 (5th Cir. 2009).
8

In order to satisfy the first element of the prima facie case the
Plaintiff must demonstrate that she “opposed any practice made an
unlawful employment practice by this subchapter” 42 U.S.C. § 2000e3(a). In order to satisfy this “opposition clause” the Plaintiff
must demonstrate that she reasonably believed that the OPCD was
engaging in unlawful employment practices. Byers v. Dallas Morning
News, Inc., 209 F.3d 419, 427-428 (5th Cir. 2000).
Title VII protects employees from discrimination on the basis
of their sex. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78
(1998). The Supreme Court has explained, “[t]he critical issue,
Title VII's text indicates, is whether members of one sex are
exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.” Oncale, 523 U.S.
75, 80. In the instant matter Plaintiff alleges same-sex harassment
from Jeanne Hobson. The Supreme Court has outlined three approaches
to

evaluate

whether

an

alleged

same

sex

harasser’s

conduct

constitutes sexual discrimination. La Day v. Catalyst Tech., Inc.,
302 F.3d 474, 478 (5th Cir. 2002). The Plaintiff may establish a
prima facie case by demonstrating that Ms. Hobson (1) made explicit
or implicit proposals of sexual activity and provide credible
evidence that Ms. Hobson was homosexual; (2) that Ms. Hobson was
motived by general hostility to the presence of members of the
same sex; or (3) demonstrate through comparative evidence that Ms.
Hobson treated members of both sexes different in a mixed-sex
9

workplace. La Day, 302 F.3d 474, 478. Nonetheless, these are not
exhaustive approaches to determining the presence of same sex
harassment. EEOC v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444,
455-456 (5th Cir. 2013).
In “Plaintiff’s Third Supplemental and Amending Complaint”
(Rec. Doc. 29) she fleshes out various allegations regarding Ms.
Hobson’s

alleged

wrongful

conduct.

There

are

four

general

allegations that form the basis of Plaintiff’s Title VII sexual
harassment retaliation claim. First, Plaintiff alleges that one
day during lunch Ms. Hobson approached her and talked about a man
she had met on an online dating website and discussed her sexual
behavior with the man (Rec. Doc. 29). Plaintiff stated that during
Ms. Hobson’s narrative she got up from the table and went into her
office and closed the door in order to discontinue the conversation
(Rec. Doc. 29). Second, Plaintiff alleges that Ms. Hobson attempted
to show her various photos of additional men who were her sexual
partners

(Rec.

Doc.

29).

Third,

Ms.

Hobson

came

into

the

Plaintiff’s office and communicated that she had sex with a man
during her lunch hour (Rec. Doc. 29). Finally, Plaintiff discussed
Ms. Hobson’s comments with another co-worker and learned of other
sexual activities that Ms. Hobson had been sharing with other
employees (Rec. Doc. 29).
All of the instances that plaintiff alleges creates a sexually
hostile environment do not constitute sexual harassment in a
10

legally cognizable manner under Supreme Court and Fifth Circuit
precedent.

First,

Plaintiff

does

not

allege

that

Ms.

Hobson

propositioned her explicitly or implicitly. Furthermore, all of
her

encounters

are

heterosexual

in

nature

and

therefore

no

indication exists that Ms. Hobson’s conduct satisfies the first
approach.

Second,

there

is

no

allegation

that

Ms.

Hobson’s

relationship comments are made because she feels hostility to other
women in the workplace. Finally, there is no comparative evidence
to demonstrate that Ms. Hobson does not share these narratives
with male colleagues in the office in a similar fashion.
Even if Ms. Hobson’s comments were inappropriate or made the
Plaintiff feel uncomfortable, the Supreme Court has explained,
“[t]he prohibition of harassment on the basis of sex requires
neither asexuality nor androgyny in the workplace; it forbids only
behavior so objectively offensive as to alter the conditions of
the victim's employment. Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work environment
-- an environment that a reasonable person would find hostile or
abusive -- is beyond Title VII’s purview.” Oncale, 523 U.S. at 81
(internal quotations omitted).
Furthermore, as the Fifth Circuit has explained, “[t]o be
actionable,

the

challenged

conduct

must

be

both

objectively

offensive, meaning that a reasonable person would find it hostile
or abusive, and subjectively offensive, meaning that the victim
11

perceived it to be so. This Court must look at the totality of the
circumstances when determining whether an environment is hostile
or abusive. The Court may consider factors such as the frequency
of the conduct, its severity, the degree to which the conduct is
physically threatening or humiliating, and the degree to which the
conduct

unreasonably

interferes

with

an

employee's

work

performance.” Barnett v. Boeing Co., 306 Fed. Appx. 875, 879 (5th
Cir. 2009) (internal quotations and citations omitted).
There are no allegations that Ms. Hobson committed any actions
that

would

be

so

offensive

as

to

alter

the

conditions

of

Plaintiff’s employment. Ms. Hobson did not show the Plaintiff any
nude videos or images of her paramours.

The discussions of Ms.

Hobson’s romantic life may have made the Plaintiff uncomfortable
but does not give rise to a reasonable person feeling that they
are

in

a

sexually

hostile

work

environment.

The

Plaintiff’s

contention that her subjective offense alone can establish a prima
facie case for a Title VII retaliation claim does not comport with
the controlling case law. Moreover, the Fifth Circuit has held in
a more egregious case that harassment was not sufficiently severe
or pervasive to create an objectively hostile or abusive work
environment. Gibson v. Potter, 264 Fed. Appx. 397, 400 (5th Cir.
2008). In Gibson, the Fifth Circuit held that when a Plaintiff’s
supervisor grabbed her buttocks and made suggestive comments it
was not sufficiently severe or pervasive enough to create an
12

objectively hostile work environment. 264 Fed. Appx. 397, 400. The
facts of the instant matter are nowhere as severe. It is not
reasonable that the Plaintiff believed that Ms. Hobson’s romantic
commentary created a sexually hostile work environment in a way
that

is

actionable

under

Title

VII.

Plaintiff’s

Title

VII

retaliation claims should be dismissed given that she cannot
establish a prima facie case.
C. LOUISIANA WHISTLEBLOWER STATUTE CLAIMS
“The Whistleblower Statute provides protection to employees
against reprisal from employers for reporting or refusing to
participate in illegal work practices.” Accardo v. La. Health
Servs. & Indem. Co., 943 So. 2d 381, 383 (La.App. 1 Cir. 2006).
Furthermore, under the Louisiana Whistleblower Statute La. R.S.
23: 967 the Plaintiff must prove an actual violation of state law.
Accardo, 943 So. 2d 381, 383. Here, the Plaintiff’s claim is based
on her allegation that she reported Ms. Hobson’s behavior to
Director Gordon and was subsequently fired as a result. Plaintiff
would have to plead facts that demonstrate that Ms. Hobson’s
behavior constituted employment discrimination under Louisiana law
on the basis of sex. However because the Louisiana “statute is
similar in scope to the federal anti-discrimination prohibitions
in Title VII of the Civil Rights Act of 1964, Louisiana courts
have routinely looked to the federal jurisprudence for guidance in
determining whether a hostile work-environment claim based on
13

sexual harassment has been asserted under LSA-R.S. 23:332(A).”
Assamad v. Square, 993 So. 2d 644, 648 (La.App. 1 Cir. 2008). If
Ms. Hobson’s actions do not lead to legally cognizable sexual
harassment claims under federal law, the same is true for Louisiana
state law. The Plaintiff has not alleged facts that demonstrate a
violation of state law, a requirement for a valid Louisiana
Whistleblower claim. The Court therefore finds that this claim
should similarly be dismissed.

New Orleans, Louisiana, this 5th day of June, 2017.

__________________________________
SENIOR UNITED STATES DISTRICT JUDGE

14