Trigueros v. New Orleans City et al

Filing 20

ORDER & REASONS regarding Defendant's 18 Motion to Dismiss for Failure to State a Claim. IT IS ORDERED that Plaintiff's LWPA claims against the coroner are DISMISSED. IT IS FURTHER ORDERED that Plaintiff's retaliation claims against the coroner under the FLSA are DISMISSED. Signed by Judge Eldon E. Fallon on 5/23/18. (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JENNIFER TRIGUEROS

CIVIL ACTION

VERSUS

NO. 17-10960

NEW ORLEANS CITY ET AL

SECTION "L" (4)

ORDER & REASONS
Before the Court is Defendant’s motion to dismiss, R. Doc. 18. Plaintiff responds in
opposition, R. Doc. 19. Having considered the parties’ briefs and the applicable law, the Court
issues this Order & Reasons.
I.

BACKGROUND
From February 2015 to January 2017, Plaintiff Jennifer Trigueros was employed by

Defendants New Orleans City (“City”) and Coroner Jeffrey Rouse (“Rouse”) as a death
investigator. R. Doc. 1 at 2. The position of death investigator was classified as exempt from
overtime and Plaintiff was not paid overtime even though she was often required to work more
than 40 hours per week. R. Doc. 1 at 3. Plaintiff alleges that Defendants misclassified her job
position and that she was entitled to overtime wages. R. Doc. 1 at 3. Plaintiff further alleges that
she was terminated from her position because she complained about the lack of overtime wages
on Facebook. R. Doc. 1 at 3-4. Plaintiff brings claims for overtime wages and damages due to
retaliatory termination under the FLSA. R. Doc. 1 at 4. Plaintiff additionally brings claims for
overtime and vacation pay under the LWPA. R. Doc. 1 at 5.
Defendant New Orleans City answers the complaint generally denying Plaintiff’s
1

allegations. R. Doc. 6. City also asserts the following defenses: failure to state a claim, prescription,
and failure to mitigate. R. Doc. 6 at 1. Defendants filed a 12(b)(6) motion on December 22, 2017.
R. Doc. 5. The Court denied the motion and allowed Plaintiff to amend her complaint to add
sufficient facts. R. Doc. 12. Plaintiff amended her complaint in April 2018. R. Doc. 17. Defendants
have renewed their motion to dismiss. R. Doc. 18.
II.

PENDING MOTION
Defendant Rouse has filed a motion to dismiss for failure to state a claim. R. Doc. 18.

First, Defendant argues that because Plaintiff has alleged claims under the FLSA the LWPA
claims are barred. R. Doc. 18-1 at 1, 4. Defendant argues that claims under the LWPA are
preempted by the FLSA and should be dismissed. R. Doc. 18-1 at 5.
Second, Defendant argues that Plaintiff has not alleged a protected activity under the
FLSA. R. Doc. 18 at 1. Defendant argues that posting to Facebook is not a protected activity
because it does not qualify as “filing a complaint” under the FLSA. R. Doc. 18 at 6. Defendant
alleges that Plaintiff did not file a formal complaint with her employer and that her Facebook
post does not qualify as an informal complaint. R. Doc. 18-1 at 6-7. Defendant notes that
Plaintiff’s Facebook post was not directed at her employer and did not allege any unlawful
behavior. R. Doc. 18-1 at 7-8. Additionally, Facebook is not a recognized forum for protected
activity under the FLSA. R. Doc. 18-1 at 7. Therefore, Plaintiff’s FLSA claims should be
dismissed because she cannot sustain a claim for retaliation. R. Doc. 18-1 at 8.
Finally, Defendant argues that he is entitled to qualified immunity and state statutory
immunity. R. Doc. 18 at 2, 8. Defendant argues that he is entitled to qualified immunity because
it is not, and was not at the time Plaintiff was terminated, clearly established that posting to
social media is a protected activity under the FLSA. R. Doc. 18-1 at 9. Defendant further argues
2

that he is entitled to state statutory immunity because retention of personnel is a discretionary
choice of the Defendant as coroner. R. Doc. 18-1 at 11.
Plaintiff responds in opposition. R. Doc. 19. First, Plaintiff argues that her state law
claims should not be dismissed as preempted because she is permitted to plead alternative
theories. R. Doc. 19 at 3. Second, Plaintiff argues that her FLSA retaliation claim should not be
dismissed because at the motion to dismiss state the court must assume her allegations that she
engaged in protected activity to be true. R. Doc. 19 at 3. Finally, Plaintiff argues that Defendant
is not entitled to qualified immunity because there is no Fifth Circuit precedent establishing
qualified immunity for FLSA claims at the pleading stage. R. Doc. 19 at 3.
III.

LAW & ANALYSIS
a. Motion to Dismiss Standard
The Federal Rules of Civil Procedure permit a defendant to seek a dismissal of a complaint

based on the “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
A complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 47 (1957). Generally, when evaluating a motion to dismiss pursuant
to Rule 12(b)(6), the court should not look past the pleadings.
“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.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The district
court must construe facts in the light most favorable to the nonmoving party and must accept as
true all factual allegations contained in the complaint. Ashcroft, 556 U.S. at 678. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
3

reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court “do[es]
not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.”
Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
b. FLSA & LWPA Claims
In her amended complaint, Plaintiff claims a violation of the FLSA for unpaid wages for
overtime that she worked. R. Doc. 17 at 4. Plaintiff also claims that she is owed unpaid overtime
wages under the Louisiana Wage Payment Act (“LWPA”). R. Doc. 17 at 4-5. Plaintiff cannot
recover unpaid overtime wages under both the FLSA and LWPA because the state law claims
are preempted if the employee was engaged in interstate commerce. Little v. Mizell, 2016 WL
3430489 at *4 (E.D. La. 2016) (citing Kidder v. Statewide Transport, Inc., 13-594, p.6 (La. App.
3 Cir. 12/18/13); 129 So.3d 875, 880; Divine v. Levy, 36 F. Supp. 55, 58 (W.D. La. 1940)).
Plaintiff argues that it is premature to determine preemption because she is permitted to plead in
the alternative. However, this Court has previously made determinations regarding preemption of
LWPA claims by the FLSA at the motion to dismiss stage. See England v. Adm’rs of the Tulane
Educ. Fund, 2016 WL 6520146 (E.D. La. 2016). Here, Plaintiff alleges that she was engaged in
interstate commerce and that the FLSA applies. R. Doc. 17 at 2. Therefore, Plaintiff’s LWPA
claims are preempted.
c. FLSA Protected Activity
Under the FLSA, an employer may not
discharge or in any other manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to be instituted any
proceeding under or related to this chapter, or has testified or is about to testify in
any such proceeding, or has served or is about to serve on an industry committee.
29 U.S.C. § 215 (a)(3). To make a retaliation claim under the FLSA a plaintiff must show “(1)
participation in protected activity under the FLSA; (2) an adverse employment action; and (3) a
4

causal link between the activity and the adverse action.” Hagan v. Echostar Satellite, L.L.C., 529
F.3d 617, 624 (5th Cir. 2008). “If [Plaintiff] cannot prove that he was engaged in protected
activity under Section 215(a)(3), then he cannot make out a viable [retaliation] claim under the
FLSA.” Id. An informal, internal complaint may constitute filing a complaint and thus be a
protected activity. Id. at 625-26 (listing examples where employees communicated an alleged
violation of law to their employer). “[H]owever, not all ‘abstract grumblings’ or vague
expressions of discontent are actionable as complaints.” Id. at 626. “To fall within the scope of
the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and context, as an assertion of rights protected
by the statute and a call for their protection.” Kasten v. Saint-Gobain Performance Plastics
Corp., 563 U.S. 1, 14 (2011).
Here, Plaintiff’s Facebook post does not qualify as a protected activity under the FLSA.
First, while Plaintiff’s post may be categorized as a complaint, it fails to meet the requirements
here because it was not a complaint directed in any way at her employer. The post was to a
personal social media page. While some of these pages, depending on privacy settings, may be
viewed by the public, the general audience of a social media post is friends and acquaintances.
Though an employee may be connected to coworkers and her employer on a social media site,
the Court has not found an example of a social media post qualifying as a complaint to an
employer or protected activity under the FLSA.
Second, even if Plaintiff’s social media post was somehow a communication to her
employer it is not “an assertion of rights . . . and a call for their protection.” The majority of
Plaintiff’s complaint was focused on the unfair and/or inconsiderate behavior of a coworker. It is
not until the very end of the post that Plaintiff mentions, as an aside, that she did not receive
5

overtime pay. Nowhere in the post does Plaintiff claim she is legally entitled to overtime pay or
even argue that she should be receiving overtime pay. Therefore, the content of this post is not
sufficiently clear or detailed to qualify as a protected activity.
d. Qualified & Statutory Immunity
Defendant’s arguments regarding qualified and/or state statutory immunity are directed
only toward Plaintiff’s retaliation claim. Because the Court has found that Plaintiff cannot
support his claim, it does not need to reach the immunity issues. Additionally, because
Defendant makes no arguments applying his immunity claims to Plaintiff’s claims for overtime
wages, the Court declines to determine at this time whether immunity applies to the overtime
claims in Defendant’s personal capacity. Defendant may reurge these issues at a later date.
IV.

CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s LWPA claims against the coroner are DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s retaliation claims against the coroner

under the FLSA are DISMISSED.

New Orleans, Louisiana, this 23rd day of May, 2018.

UNITED STATES DISTRICT JUDGE

6