Notariano v. Tangipahoa Parish School Board et al

Filing 28

ORDER AND REASONS granting in part 8 Motion to Dismiss for Failure to State a Claim, or Alternatively, Motion for Summary Judgment. Plaintiff may amend her complaint within 21 days of the entry of this order to the extent she can remedy the deficiencies outlined herein. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KIM NOTARIANO

CIVIL ACTION

VERSUS

NO: 16-17832

TANGIPAHOA PARISH SCHOOL
BOARD, ET AL

SECTION: “H”(2)

ORDER AND REASONS
Before the Court is Defendants’ Motion to Dismiss or, Alternatively,
Motion for Summary Judgment (Doc. 8). For the following reasons, this Motion
is GRANTED IN PART.
BACKGROUND
In this action, Plaintiff Kim Notariano, a white female over the age of
40, seeks vindication for alleged systemic violations of her civil rights
stemming from the employment practices of the Tangipahoa Parish School
Board (“TPSB”) and its agents, Defendants Ossie Mark Kolwe, Tomas Bellavia,
and Walter Daniels (the “Individual Defendants”). Plaintiff alleges that she
has been unlawfully denied promotions in 2004, 2010, 2014, and 2016 based in
whole or in part upon her sex, age, and race, and also as retaliation for
complaining of the same. She also alleges that she has been the victim of a
conspiracy to circumvent this Court’s orders in Joyce Marie Moore, et al. v.
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Tangipahoa Parish School Board¸1 the still-active desegregation case
regarding TPSB. She brings claims of sex discrimination, retaliation, age
discrimination, and race discrimination under Title VII of the Civil Rights Act
of 1964 and 42 U.S.C. §§ 1981, 1981a, 1983, and 1988. She also alleges that
the actions of Defendants violated the due process protections of the 14th
Amendment. Finally, she brings state law causes of action for intentional
infliction of emotional distress and under the Louisiana Employment
Discrimination Law. Defendants respond with the instant Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment. Plaintiff opposes.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim to relief that is plausible on its face.”2 A claim is
“plausible on its face” when the pleaded facts allow the court to “[d]raw the
reasonable inference that the defendant is liable for the misconduct alleged.”3
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”4

The Court need not,

however, accept as true legal conclusions couched as factual allegations.5
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true.6 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’“
will not suffice.7

Rather, the complaint must contain enough factual

This action bears case no. 65-15556.
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)).
3 Id.
4 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
5 Iqbal, 556 U.S. at 667.
6 Id.
7 Id. at 678 (quoting Twombly, 550 U.S. at 555).
1
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allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiffs’ claim.8
LAW AND ANALYSIS
At the outset, the Court notes that Defendants ask the Court to
alternatively consider this Motion under the Rule 56 Summary Judgment
standard. The Court finds that a motion for summary judgment is premature.
Discovery has not yet begun, and Plaintiff has submitted evidence indicating
that genuine issues of material fact abound as to the parties’ actions and
motivations. Accordingly, the Court will consider this Motion under the Rule
12(b)(6) standard. Defendants may re-urge a motion for summary judgment
at a more appropriate time.
In the instant Motion, Defendants aver (1) that many of Plaintiff’s claims
are prescribed, (2) that Plaintiff has failed to state a claim for discrimination
under federal or state law, (3) that Plaintiff has failed to state a claim for
violations of due process, and (4) that all claims against Defendants Mark
Kolwe, Tomas Bellavia, and Walter Daniels (the “Individual Defendants”) in
their individual capacities should be dismissed on the basis of qualified
immunity. The Court will address these arguments in turn.
I. Prescription
Defendants first aver that Plaintiff’s claims arising out of her denied
promotions in 2004, 2010, and 2014 are prescribed, as the alleged
discrimination occurred more than 1 year prior to this suit.9 Plaintiff responds

Lormand, 565 F.3d at 255–57.
Claims under Title VII are subject to a 300-day administrative filing period. 42
U.S.C. § 2000e-5(e)(1). All other claims are subject to a one-year prescriptive period. See
Taylor v. Bunge Corp., 775 F.2d 617, 618 (5th Cir. 1985) (federal discrimination claims
subject to 1 year prescriptive period); La. Rev. Stat. § 23:301 (claims under Louisiana
Employee Discrimination Law are subject to one-year prescriptive period).
8
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in opposition, arguing that the complained-of discrimination constitutes a
“continuing violation” such that this Court may impose liability for actions
occurring outside the limitation period.

The continuing violation theory

typically applies to hostile work environment claims.10 This doctrine is equally
applicable to Title VII claims and claims brought under § 1983. “Unlike in a
case alleging discrete violations, a hostile environment plaintiff is not limited
to filing suit on events that fall within this statutory time period because her
claim is comprised of a series of separate acts that collectively constitute one
unlawful employment practice.”11 “A continuing violation involves repeated
conduct, and cannot be said to occur on any particular day. It instead occurs
over a series of days or perhaps years and, in direct contrast to discrete acts, a
single act of harassment may not be actionable on its own.”12 There are several
limits on the applicability of the continuing violations doctrine, including
(1) the plaintiff must demonstrate that the separate acts are
related; (2) the violation must be continuing; intervening action by
the employer, among other things, will sever the acts that preceded
it from those subsequent to it; and (3) the doctrine may be
tempered by the court’s equitable powers, which must be exercised
to “honor Title VII’s remedial purpose without negating the
particular purpose of the filing requirement.”13
Unlike a hostile work environment claim, Plaintiff alleges discrete
instances in which she was denied promotions. First, she avers that when she
applied for two mid-level supervisory positions in 2004, she was denied the
position and told that “the jobs were for men.” Second, she alleges that when

Johnson v. Fluor Corp., 181 F. Supp. 3d 325 (M.D. La. 2016).
Id. (internal quotations omitted).
12 Jurach v. Safety Vision, LLC, 72 F. Supp. 3d 698, 707 (S.D. Tex. 2014), aff’d, 642 F.
App’x 313 (5th Cir. 2016) (internal quotations omitted) (quoting Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 115 (2002).
13 Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 738
(5th Cir. 2017), as revised (Mar. 13, 2017).
10
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she applied for the transportation director position in 2010, she was again
denied the position and told that the board “had to hire a black.” Third, she
alleges that in 2014 she applied for a mid-level transportation coordinator
position and was passed over in favor of a less-qualified, younger white female.
Finally, she alleges that in 2016 she applied for the position of transportation
director but was once again passed over, this time in favor of a younger black
male.

“The continuing violation doctrine does not apply when ‘the relevant

discriminatory actions alleged in the complaint [are] the sort[s] of discrete and
salient event[s] that should put an employee on notice that a cause of action
has accrued.’”14 Each of Plaintiff’s denied promotions are just such discrete
and salient events.

Indeed, Plaintiff contemporaneously complained of

discrimination each time. Furthermore, these claims do not allege the same
type of discrimination, as some allege racial discrimination while others allege
sex discrimination. Accordingly, the continuing violation doctrine does not
apply, and Plaintiff’s claims that arose outside of the one-year limitation—or
before December 30, 2015—are time barred. This includes the aforementioned
claims arising out of events in 2004, 2010, and 2014. Only Plaintiff’s claims
arising out of the denial of promotion in 2016 survive.
II. Whether Plaintiff has Stated a Claim for Discrimination
Defendants next argue that Plaintiff cannot state a claim for
discrimination under federal or state law because such claims are precluded
by Judge Lemelle’s orders in Moore. This argument belies common sense. This
Court cannot, by its orders, obviate the protections provided by federal and
state discrimination laws. Indeed, it is readily apparent that Judge Lemelle
did not intend to do so, as he expressly noted that the school board may not
Id. (quoting Windhauser v. Bd. of Supervisors for Louisiana State Univ. & Agr. &
Mech. Coll., 360 Fed. Appx. 562, 566 (5th Cir. 2010)). See Henson v. Bell Helicopter Textron,
Inc., 128 F. App’x 387, 391 (5th Cir. 2005).
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simply deny Plaintiff a promotion because she is white and another applicant
is black.15
To allege a prima facie case for discrimination, Plaintiff must allege that
(1) she was not promoted, (2) she was qualified for the position she sought, (3)
she fell within a protected class at the time of the failure to promote, and (4)
the defendant either gave the promotion to someone outside of that protected
class or otherwise failed to promote the plaintiff because of her membership in
that class.16 With regard to her 2016 application for transportation director,
she has alleged that she did not receive the promotion, that she was the most
qualified for the position she sought, that she fell within a protected class as a
white woman, and that the job went to a black male, an individual outside the
protected class. At this early stage of the litigation, this is sufficient to state a
claim for race and sex discrimination.
III. Whether Plaintiff has Stated a Claim for Due Process Violations
Defendants next aver that the due process claims against them must be
dismissed because Plaintiff has not identified a protectable property interest.
To prevail on a due process claim, a Plaintiff must first establish that she has
a property right to which due process protections apply.17 “To have a property
interest in a benefit, a person clearly must have more than an abstract need or
desire for it. He must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.”18 Property interests are
not created by the constitution, “[r]ather they are created and their dimensions
are defined by existing rules or understandings that stem from an independent

No 65-15556, Doc. 1425 at 8 (discussing Plaintiff’s complaint in the context of a
motion for unitary status).
16 Autry v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 346–47 (5th Cir. 2013).
17 Blackburn v. City of Marshall, 42 F.3d 925, 936 (5th Cir. 1995).
18 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
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source such as state law—rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits.”19
Plaintiff avers that she was denied her right to due process when, after
being denied a promotion, she was not permitted to proceed with the grievance
procedure provided for in the TPSB employment manual. The Court notes that
she does not specifically identify a property right in her complaint.
Nevertheless, in her briefing, she alleges (1) that she had a liberty interest in
her reputation that was impugned by her failure to receive the job in question
and (2) that she had a right to public employment per the Louisiana
constitution. The Court finds neither of these arguments persuasive.
A. Plaintiff has Identified No Actionable Liberty Interest in her
Reputation
Plaintiff avers that her reputation was damaged because the TPSB job
application process is public and individuals in the community continue to
wonder why she continues to lose out on promotions to applicants whom she
contends are less qualified. This is insufficient to establish a constitutionally
protected property right. Procedural due process protections are implicated
with regard to a Plaintiff’s reputation “only when the employee is discharged
in a manner that creates a false and defamatory impression about him and
thus

stigmatizes

him

and

forecloses

him

from

other

employment

opportunities.”20 “Invasion of an interest in reputation alone is insufficient to
establish § 1983 liability because a damaged reputation, apart from injury to
a more tangible interest such as loss of employment, does not implicate any
“liberty” or “property” rights sufficient to invoke due process.”21

In the

employment context, the Fifth Circuit employs a seven-part test to determine
Id. at 577.
Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006).
21 Geter v. Fortenberry, 849 F.2d 1550, 1556 (5th Cir.1988).
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whether § 1983 proves a government employee with a remedy for deprivation
of liberty without the opportunity to clear her name:
The plaintiff must show: (1) he was discharged; (2) stigmatizing
charges were made against him in connection with the discharge;
(3) the charges were false; (4) he was not provided notice or an
opportunity to be heard prior to the discharge; (5) the charges were
made public; (6) he requested a hearing to clear his name; and (7)
the employer denied the request.22
Plaintiff’s allegations fall short on several fronts. She has alleged neither that
she was discharge nor that stigmatizing charges were made against her by her
employer. Absent such allegations, her procedural due process claims based
on impairment of her reputation must fail.
B. Plaintiff Had No Property Right to Promotion
Plaintiff next argues that she had a property interest in public
employment that was violated by Defendants. In support of this contention,
she cites to the Louisiana Constitution, which vests civil service employees of
the state with property rights in their continued employment.23 This argument
fails for two reasons. First, though the Louisiana Constitution give some state
employees a property right in continued employment, it specifically exempts
school board employees, such as Plaintiff, from its protections.24 Additionally,
Plaintiff has not identified a case where the deprivation of due process was
based on a failure to promote. Indeed, one of the cases cited by Plaintiff to
support her position specifically indicates that “failing to promote the plaintiff
would not amount to a due process violation . . . because the state would not
have taken anything from the plaintiff without due process, it would only have
failed to give him something.”25
Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006).
La. Const. art. 10, §§ 5, 8, 10.
24 La. Const. art. 10, § 2.
25 Vanderwall v. Horner, 635 F. Supp. 688, 694 (E.D. La. 1986).
22
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Because Plaintiff fails to allege a protected property right, her due
process claims are dismissed without prejudice.
IV. Claims Against the Individual Defendants
The Individual Defendants next aver that the claims against them in
their personal capacities must be dismissed on the basis of qualified immunity.
They also argue that the state law employment discrimination claims asserted
against them in their individual capacities are barred by state law. Finally,
they argue that the official-capacity claims against them should be dismissed
as duplicative of the claims asserted against TPSB. The Court will address
these arguments in turn.
A. Qualified Immunity
Defendants argue that (1) Plaintiff has not alleged sufficient facts to
show that the Individual Defendants were personally involved in the
deprivation of any constitutional rights and (2) even if her factual allegations
are sufficient, Plaintiff has failed to plead a violation of any clearly established
constitutional right. In Saucier v. Katz, the Supreme Court promulgated a
two-step analysis to determine if an official has stepped outside the bounds of
qualified immunity.

Under that test, the initial inquiry is whether the

Plaintiff has alleged a constitutional violation. If established, the next inquiry
is whether the defendant’s conduct was objectively reasonable in light of
clearly established law at the time the conduct occurred.

In Pearson v.

Callahan, the Court retreated somewhat from this rigid two-step inquiry,
giving courts leave to decide which prong to consider first. “[I]f the pleadings
on their face show an unreasonable violation of a clearly established
constitutional right, the defense of qualified immunity will not sustain a
motion to dismiss under Rule 12(b)(6).”26 “[A] plaintiff ‘must identify

26

Shipp v. McMahon, 234 F.3d 907, 912 (5th Cir.2 000).

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defendants who were either personally involved in the constitutional violation
or whose acts are causally connected to the constitutional violation alleged.’”27
The Court is mindful of the fact that, with the exception of her claim
arising out of her 2016 application for the transportation director position,
Plaintiff’s claims are prescribed. Accordingly, to avoid qualified immunity,
Plaintiff must plead specific facts to support constitutional violations by each
of the Individual Defendants regarding the denial of this position. Plaintiff
has not met this burden. Plaintiff alleges that Defenses Kolwe and Bellavia
had previously offered the transportation director position to Terran Perry, a
less qualified, younger African-American male applicant. Plaintiff alleges that
this was part of a conspiracy to avoid having a black principal at Hammond
High School; however, she does not allege that these Individual Defendants
were motivated by any desire to discriminate against her. She also alleges that
Defendant Daniels indicated that “they need a man in [the transportation
director] position,” however, she does not allege that Daniels had any authority
over hiring for the position at issue. In light of the paucity of factual allegations
in the Complaint, the Court finds that Plaintiff cannot overcome the defense of
qualified immunity as to the Individual Defendants. The Court will, however,
give Plaintiff leave to amend to the extent that she can allege facts sufficient
to show that the Individual Defendants were personally responsible for the
alleged civil rights violations.
B. State Law Claims
Defendants next argue that Plaintiff’s claims under the Louisiana
Employment Discrimination Law against the Individual Defendants must be
dismissed because they do not qualify as employers under this statute.
Plaintiff has not opposed this portion of the Motion. “It is well established that

27

Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).

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‘Louisiana’s antidiscrimination law provides no cause of action against
individual employees, only against employers.’”28 “Based on the clear language
of the statute and both federal and state case law, the Louisiana employment
discrimination laws do not expose co-employees or supervisors to liability.”29
Accordingly, Plaintiff’s individual capacity claims against the Individual
Defendants under the Louisiana Employment discrimination law must be
dismissed with prejudice.
C. Duplicative Claims
Defendants finally argue that any claims against them in their official
capacities should be dismissed as duplicative of the claims asserted against
TPSB. This Court agrees. Official-capacity suits “generally represent only
another way of pleading an action against an entity of which an officer is an
agent.”30 If the claims against an official in his official capacity seek identical
relief as claims against a governmental entity, the official capacity claims may
be dismissed as duplicative.31 Accordingly, because all claims against the
Individual Defendants in their official capacities are redundant of the claims
against TPSB, these claims are dismissed with prejudice.
CONCLUSION
For the forgoing reasons, Defendants’ Motion to Dismiss is GRANTED
IN PART as outlined herein. Plaintiff’s claims arising out of events taking
place prior to December 30, 2015 are DISMISSED WITH PREJUDICE as
prescribed. Plaintiff’s procedural due process claims and her claims against
the Individual Defendants are DISMISSED WITHOUT PREJUDICE.
Minnis v. Bd. of Sup’rs of Louisiana State Univ. & Agric. & Mech. Coll., 972 F.
Supp. 2d 878, 889 (M.D. La. 2013)
29 Aronzon v. Sw. Airlines, No. 03-394, 2004 WL 57079, at *5 (E.D. La. Jan. 9, 2004).
30 Monel v. Dep’t. of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978).
31 See Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001).
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Plaintiff may amend her complaint within 21 days of the entry of this order to
the extent she can remedy the deficiencies outlined herein.
New Orleans, Louisiana this 17th day of July, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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