Sider v. Jefferson Parish Hospital Service District No. 2

Filing 17

ORDER AND REASONS granting 6 Motion to Dismiss for Failure to State a Claim. Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff has 21 days to amend her complaint. Failure to timely amend will result in dismissal of the complaint with prejudice. Signed by Judge Sarah S. Vance on 4/18/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GABRIELLE SIDER

CIVIL ACTION

VERSUS

NO. 17-14527

JEFFERSON PARISH HOSPITAL
SERVICE DISTRICT NO. 2

SECTION “R” (3)

ORDER AND REASONS
Before the Court is defendant’s motion to dismiss. 1 For the following
reasons, the Court grants the motion.
I.

BACKGROUND
This case arises out of claims of employment discrimination. 2

According to the complaint, Plaintiff Gabrielle Sider began working with
Defendant Jefferson Parish Hospital Service District No. 2 in February 2016
as a medical assistant. 3 Plaintiff alleges that she requested a pay raise in May
2016 after reaching full-time employee status, but defendant did not provide
her with the full-time employee pay rate.4 Plaintiff further alleges that,
between September 2016 and June 2017, defendant created a hostile work

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2
3
4

R. Doc. 6.
R. Doc. 1.
Id. at 2 ¶ 10.
Id. at 2-3 ¶¶ 11-12.

environment and “harassed her when it created a rift between Plaintiff and
[her] co-workers, lodged unjustified write-ups, denied Plaintiff applicable
pay, and forced [P]laintiff to undertake responsibilities of other coworkers.”5 In June 2017, plaintiff allegedly filed a formal complaint with
defendant’s compliance hotline.6 Plaintiff asserts that she was fired the day
after making this complaint. 7
On December 4, 2017, plaintiff filed suit for damages under Title VII of
the Civil Rights Act. 8 The complaint alleges that defendant unlawfully
retaliated against plaintiff by discharging her after she filed a formal
complaint. 9 Plaintiff further alleges that defendant harassed her and created
a hostile work environment.10

Defendant now moves to dismiss the

complaint under Federal Rule of Civil Procedure 12(b)(6). 11
II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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6
7
8
9
10
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Id. at 3 ¶ 13.
Id. at ¶ 14.
Id. at ¶ 15.
R. Doc. 1.
Id. at 3-4 ¶¶ 25-26.
Id. at 4 ¶ 27.
R. Doc. 6.
2

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible when the plaintiff pleads facts that allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678. A court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. See Lormand v. US
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need
not contain detailed factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause of action. Id.
In other words, the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal relevant evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. The claim
must be dismissed if there are insufficient factual allegations to raise a right
to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is
apparent from the face of the complaint that there is an insuperable bar to
relief, Jones v. Bock, 549 U.S. 199, 215 (2007).

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III. DISCUSSION
The complaint asserts that defendant created a hostile work
environment and unlawfully retaliated against plaintiff in violation of Title
VII.12 Title VII prohibits an employer from discriminating against any
individual “because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2. Plaintiff alleges that defendant engaged in
“discriminatory actions.”13 But the complaint does not allege that plaintiff
belongs to a protected class or that she was discriminated against because of
her “race, color, religion, sex, or national origin.” Id.
Plaintiff thus fails to state a claim for a hostile work environment.
“Title VII does not prohibit all verbal or physical harassment in the
workplace; it is directed only at discrimination because of sex” or another
protected characteristic. Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80 (1998) (internal quotations and alterations omitted); see also
Hernandez v. Yellow Transportation, Inc., 670 F.3d 644, 651-54 (5th Cir.
2012). Here, the complaint fails to articulate any connection between a
protected class and defendant’s alleged harassment. See Hiner v. McHugh,

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13

R. Doc. 1 at 3-4.
Id. at 3 ¶ 22.
4

546 F. App’x 401, 408 (5th Cir. 2013). Accordingly, plaintiff’s hostile work
environment claim must be dismissed.
Plaintiff similarly fails to state a claim for unlawful retaliation because
she has not alleged facts to indicate that she engaged in protected activity.
“A Title VII retaliation plaintiff must establish that: (1) the employee engaged
in activity protected by Title VII; (2) the employer took adverse employment
action against the employee; and (3) a causal connection exists between that
protected activity and the adverse employment action.” Zamora v. City of
Houston, 798 F.3d 326, 331 (5th Cir. 2015) (internal citation omitted). An
employee has engaged in protected activity if “[s]he has opposed any practice
made an unlawful employment practice” by Title VII or “made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e-3(a). “The first
of these is known as the ‘opposition clause;’ the second as the ‘participation
clause.’” EEOC v. Rite Way Servs., Inc., 819 F.3d 235, 239 (5th Cir. 2016).
Plaintiff alleges that she was fired after filing a formal complaint with
defendant’s compliance hotline.14

Such a complaint could constitute

opposition to an employment practice. “But the opposition clause does not
require opposition alone; it requires opposition of a practice made unlawful

14

Id. at ¶¶ 14-15.
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by Title VII.” Id. at 240 (emphasis in original). For her hotline complaint to
qualify as protected activity, plaintiff must show that she had a reasonable
belief that the employment practice she complained about violated Title VII.
See id. at 237; Payne v. McLemore’s Wholesale & Retail Stores, 654 F.3d
1130, 1140 (5th Cir. 1981). Because the complaint includes no allegations
that plaintiff experienced discrimination because of her protected class,
plaintiff has not pleaded sufficient facts to indicate that she had a reasonable
belief that the conduct she complained about violated Title VII.
Further, the complaint does not suggest that plaintiff engaged in
protected activity under the “participation clause.” Plaintiff asserts that she
filed charges of discrimination with the Louisiana Commission on Human
Rights and the Equal Employment Opportunity Commission. 15 But plaintiff
does not allege that she was retaliated against because of these
administrative charges. The complaint instead indicates that plaintiff was
fired after filing a complaint with defendant’s internal compliance hotline. 16
An internal complaint to an employer does not qualify as protected activity
under the “participation clause.”

See Cuellar v. Sw. Gen. Emergency

Physicians, PLLC, 656 F. App’x 707, 709 (5th Cir. 2016); Rite Way Servs.,

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Id. at 2 ¶ 8.
Id. at 3 ¶¶ 14-15.
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Inc., 819 F.3d at 239 n.2. Because plaintiff fails to plead facts to show that
she engaged in protected activity, she has not stated a claim for unlawful
retaliation under Title VII.
In her response to defendant’s motion to dismiss, plaintiff asserts that
she has a claim under the Equal Pay Act. 17 But the Equal Pay Act is not
mentioned in the complaint. And plaintiff has pleaded no facts to suggest
that she was paid less than a comparable employee of the opposite sex. See
Fields v. Stephen F. Austin State Univ., 611 F. App’x 830, 831-32 (5th Cir.
2015); Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993). Accordingly,
the complaint fails to state a claim under Title VII or the Equal Pay Act and
must be dismissed.
Plaintiff requests leave to amend her complaint. 18 The Court will
“freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a).
The Supreme Court has held that “[i]f the underlying facts or circumstances
relied upon by a plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits.” Foman v. Davis, 371
U.S. 178, 182 (1962). Leave to amend, however, “is by no means automatic.”
Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir. 1994). The Court

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R. Doc. 9 at 2.
Id. at 2-3.
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considers multiple factors, including “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of amendment.” Foman,
371 U.S. at 182. Plaintiff has not previously amended her complaint, and the
Court finds no evidence of undue delay, bad faith, or dilatory motive. Nor is
it clear that amendment would be futile. The Court therefore grants leave to
amend.
IV.

CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss is

GRANTED. Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE.
Plaintiff has 21 days to amend her complaint. Failure to timely amend will
result in dismissal of the complaint with prejudice.

18th
New Orleans, Louisiana, this _____ day of April, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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