Whitener v. St. Charles Parish et al

Filing 19

ORDER AND REASONS GRANTING 12 Motion to Dismiss for Lack of Jurisdiction, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 9/8/2020. (jls)

Case 2:19-cv-12696-ILRL-JVM Document 19 Filed 09/08/20 Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RACHEL WHITENER

CIVIL ACTION

VERSUS

NO. 19-12696

ST. CHARLES PARISH AND
CLAYTON FAUCHEUX

SECTION: "B"(1)

ORDER AND REASONS
It is ordered that defendants' opposed motion to dismiss is
GRANTED. Rec. Doc. 12.
Plaintiff

Rachel

jurisdiction pursuant
1343.

She

Whitener
to

alleges that

28

asserts

U.S.C.

defendants

§

subject

1331

denied

and

her

28

matter
U.S.C.

§

pre-deprivation

due process rights by failing to give her a hearing prior to
terminating her employment.
Plaintiff was hired by the St. Charles Parish Department
of Public
Works

Works

and

Wastewater

in

2015.

She

was

a

Public

Financial Officer, a classified position with the Civil

Service of St. Charles Parish.

Plaintiff copied files from the

department’s server on August 23, 2018. Defendants discovered
the

files

on

an

unsecured

drive

on

September

10,

2018.

Plaintiff had subsequent conversations with defendants in which
plaintiff was informed she was suspected of copying confidential
files

to

policies.

a

public

On

network

September

in

11,

contravention
2018,

of

plaintiff

governmental
was

suspended

pending an investigation. Subsequently on September 19, 2018,
1
plaintiff was terminated for misconduct in connection with the
unauthorized copying of confidential files.

Case 2:19-cv-12696-ILRL-JVM Document 19 Filed 09/08/20 Page 2 of 8

Defendants

filed

this

Rule

12(b)(1)

motion

to

dismiss

alleging lack of subject matter jurisdiction and failure to exhaust
administrative

remedies.

Rec.

Doc.

12.

Plaintiff

filed

a

memorandum in opposition, arguing there is no requirement to
exhaust

post-termination

remedies

prior

to

filing

suit

for

deprivation of pre-termination due process rights. Rec. Doc. 13.
Defendant then sought, and was granted, leave to file a reply.
Rec. Doc. 17.

Plaintiff submitted a sur-reply memorandum that

will be considered now, after leave to file same was previously
denied.

Rec. Docs. 15 & 18.
LAW AND ANALYSIS

Federal court subject matter jurisdiction is granted pursuant
to 28 U.S.C. §§ 1331 and 1332, where § 1331 provides for federal
question

jurisdiction

and §

1332 provides

for

diversity

of

citizenship jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500,
513, 126 S.Ct. 1235, 1244 (2006). In determining federal question
jurisdiction, the Court looks to see “whether a case ‘arises under
federal law’...” ’. Howery v. Allstate Ins. Co., 243 F.3d 912, 916
(5th Cir. 2001).
A

motion

to

dismiss

pursuant

to

Federal

Rule

of

Civil

Procedure 12(b)(1) challenges a federal court's subject matter
jurisdiction. “A case is properly dismissed for lack of subject
matter

jurisdiction

when

the

court

lacks

the

statutory

or

constitutional power to adjudicate the case.” Home Builders Ass'n
2

Case 2:19-cv-12696-ILRL-JVM Document 19 Filed 09/08/20 Page 3 of 8

of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998). “The standard of review applicable to motions to dismiss
under Rule 12(b)(1)is similar to that applicable to motions to
dismiss under Rule 12(b)(6)” except that the Rule 12(b)(1)standard
permits the Court to consider a broader range of materials in
considering its subject matter jurisdiction over the cause(s) in
the suit. Williams v. Wynne, 533 F.3d 360, 364-65 (5th Cir. 2008).
A

district

court

may

dismiss

for

lack

of

subject

matter

jurisdiction on any one of three bases: “(1) the complaint alone;
(2) the complaint supplemented by undisputed facts in the record;
or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Clark v. Tarrant County,
798 F.2d 736, 741 (5th Cir. 1986); Ramming v. United States, 281
F.3d 158, 161 (5th Cir.2001).
proving subject matter

The plaintiff bears the burden of

jurisdiction by

a

preponderance

of

the

evidence. Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748
(5th

Cir.

2009)

(citing New

Orleans

&

Gulf

Coast

Ry.

Co.

v.

Barrois, 533 F.3d 321, 327 (5th Cir. 2008)).
A party may “facially” or “factually” attack the basis of the
Court's subject matter

jurisdiction

on a

12(b)(1)

motion.

Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
1980) (citations omitted).
attack,”

it

limits

its

When the moving party makes a “facial
arguments

to

the

four

corners

of

the

complaint and urges the court “merely to look and see if plaintiff
3

Case 2:19-cv-12696-ILRL-JVM Document 19 Filed 09/08/20 Page 4 of 8

has sufficiently alleged a basis of subject matter jurisdiction,
[when] ... the allegations in his complaint are taken as true for
purposes of the motion.” Id. When the moving party makes a “factual
attack,” it goes beyond the pleadings and challenges “the existence
of subject matter jurisdiction in fact.” Id.
A Rule 12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction should only be granted if it appears certain that the
plaintiff cannot prove any set of facts in support of his/her
claims entitling them to relief. Wagstaff v. United States Dep't
of Educ., 509 F.3d 661, 663 (5th Cir.2007); In re FEMA Trailer
Formaldehyde Prod. Liab. Litig. (Mississippi Plaintiffs), 668 F.3d
281, 287 (5th Cir. 2012).
The defendant has asserted a factual attack on subject matter
jurisdiction. Rec. Doc. 17 at 5. Plaintiff’s original complaint
and the opposition to this motion to dismiss assert causes of
action for denial of pre-deprivation due process rights in which
plaintiff argues she was denied a hearing prior to termination of
her employment. Rec. Doc. 1 and 13.
Plaintiff acknowledges that this court may consider evidence
submitted in connection with a Rule 12(b)(1) motion to the extent
that

it

is

necessary

to

determine

jurisdiction. Rec. Doc. 15-2.

whether

the

court

has

While further acknowledging her

burden to submit facts to establish subject matter jurisdiction in
response to a factual attack upon same, plaintiff argues that the
4

Case 2:19-cv-12696-ILRL-JVM Document 19 Filed 09/08/20 Page 5 of 8

factual attack on jurisdiction does not entitle defendant to
introduce evidence as to the merits of the case. Id.
We agree that a merit review of the grounds for termination
is not in order at this stage.

However, jurisdiction here is based

on a denial of pre-termination due process. When a defendant makes
a

factual

attack

on

jurisdiction

by

submitting

relevant

allegations in the complaint and record evidence of plaintiff’s
undisputed

admissions,

plaintiff

is

required

to

submit

facts

“through some evidentiary method” to prove “by a preponderance of
the

evidence

that

the

trial

court

does

have

subject

matter

jurisdiction.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981).
Pre-termination due process requires “‘some kind of hearing’
prior to the discharge of an employee who has a constitutionally
protected property interest in his employment.” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Board of
Regents v. Roth, 408 U.S. 564, 569-70 (1972)). The hearing need
not be elaborate. Id. at 544. The employee is entitled only to
“notice and an opportunity to respond.” Id. at 546.
Plaintiff alleges she was never given a “pre-termination
opportunity to be heard in defense of the charges and evidence
against her”. (Doc. 1, Complaint ¶ 23). Prior to termination, she
acknowledges in her complaint of having meetings with the Director
of Public Works for St. Charles Parish, the Assistant Director of
5

Case 2:19-cv-12696-ILRL-JVM Document 19 Filed 09/08/20 Page 6 of 8

the Department, the Personnel Director of St. Charles Parish, and
the Head of Procurement for St. Charles Parish, “in which Ms.
Whitener

was

informed

that

she

was

suspected

of

copying

‘confidential’ files to a public network drive.” Id. at ¶14.

She

acknowledged without dispute that “[o]n September 13, 2018, [she]
met with the Parish President and the head of Procurement to
discuss what happened.” (Doc. 12-3, Ex. A-1, p. 6). During the
meeting with the Parish President and Head of Procurement, and
again without dispute, plaintiff in defense of claims against her
“explained that [she] was never informed that a network drive with
limited

access

containing

confidential

files

existed

in

our

office.” Id. After being told during the meeting that her actions
constituted a breach of trust, plaintiff acknowledged in response
“that [she] made a mistake, and [she] was not trying to violate
trust. [She] made the screen shots of the documents that [she]
actually opened, so that in case the dates changed [they] would
have proof that the content had not changed.” (Doc. 12-3, Ex. A1, p. 6-7).
Plaintiff further admits, without dispute, “[a]fter hearing
me out, the Parish President asked if I would meet with Faucheux,
Department Director, to discuss everything and try to clear the
air.” (Doc. 12-3, Ex. A-1, p. 7). During the meeting with the
Department Director, plaintiff states they “all sat down in Mr.
Cochran’s office. [She] went through everything ‘again’ and said
6

Case 2:19-cv-12696-ILRL-JVM Document 19 Filed 09/08/20 Page 7 of 8

[she] wasn’t trying to hurt anyone, [she] was trying to make sure
that the parish had proof that the records had not changed.” (Doc.
12-3, Ex. A-1, p. 7). After being informed of claims that she
intentionally made copies of confidential forms for someone who
was filing a grievance, she offered the defense that she “didn’t
know that the department had anything that wasn’t public, and [she]
did so to protect us from a public records request which may have
made the files look fishy if the date modified had changed.” (Doc.
12-3, Ex. A-1, p. 7). The foregoing admissions by plaintiff are
undisputed

and

are

only

cited

for

the

analysis

of

the

jurisdictional legal issue of pre-termination due process.
Considering the complaint and undisputed facts, plaintiff
was given an opportunity to defend her position before the Parish
President and attempted to clear the air with the Department
Director prior to her termination. She was provided with and
exercised her right to invoke the discretion of the decisionmaker
before she was terminated. See Browning v. City of Odessa, 990
F.2d 842, 844-45 (5th Cir. 1993) (determining that plaintiff’s
thirty-minute meeting with his superior constituted an adequate
pre-termination hearing “since a full evidentiary post-termination
hearing

was

jurisdiction
evidentiary

available”).
is

based

material

on

Defendants’

“factual

affidavits,

testimony,

attached

to

their

Rule

attack”
and

12(b)(1)

on

other
motion.

Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a
7

Case 2:19-cv-12696-ILRL-JVM Document 19 Filed 09/08/20 Page 8 of 8

factual attack upon jurisdiction and in response to submissions
made by the movant, the burden is placed on the plaintiff to submit
facts through some evidentiary method and prove by a preponderance
of the evidence that the trial court does have subject matter
jurisdiction.

Id.

As

seen

earlier

from

plaintiff’s

multiple

admissions in her complaint, her statements about pre-termination
meetings with supervisory officials contained in her grievance
process statement, and from her responses to instant factual attack
upon jurisdiction, she has not shown relevant or material facts to
maintain

jurisdiction

over

the

claim

for

pre-termination

due

process. Plaintiff’s own version of pre-termination events show
compliance with pre-termination due process rights, the basis for
jurisdiction. Availability of federal court relief on that basis
has not been shown. In re FEMA Trailer Formaldehyde Prod. Liab.
Litig. (Mississippi Plaintiffs), 668 F.3d 281, 287 (5th Cir. 2012).
Dismissal for lack of jurisdiction is not a determination of the
merits and does not prevent the plaintiff from pursuing a claim in
a court that does have proper jurisdiction. Ramming v. U.S., 281
F.3d 158, 161 (5th Cir. 2001).
New Orleans, Louisiana this 8th day of September 2020

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
8