Cubas v. Saint James Parish School Board et al
Filing
95
ORDER AND REASONS: For the foregoing reasons, IT IS ORDERED that 14 Motion to Dismiss for Lack of Jurisdiction is DENIED in part and GRANTED in part as set forth in document. Plaintiffs' claims asserted against McDonald in Counts 1, 2, 3 and 7 of the Complaint are DISMISSED WITH PREJUDICE, while Plaintiff's claims against McDonald asserted in Counts 4, 5 and 6 are DISMISSED WITHOUT PREJUDICE. Plaintiff shall have seven (7) days from the date of this Order to file an amended complain t addressing the deficiencies in Counts 4, 5 and 6 with respect to McDonald. IT IS FURTHER ORDERED that the 16 Motion to Dismiss for Lack of Jurisdiction DENIED in part and GRANTED in part as set forth in document. Plaintiffs claims asserted again st Cancienne, Cook, Detillier, Steib, Robichaux, Folse and Louque in Counts 1, 2, 3 and 7 of the Complaint are DISMISSED WITH PREJUDICE, while Plaintiff's claims against Cancienne, Cook, Detillier, Steib, Robichaux, Folse and Louque asserted in Counts 4, 5 and 6 are DISMISSED WITHOUT PREJUDICE. Plaintiff's claims asserted against St. James Parish School Board in Counts 1, 2, 3, 4, 5, 6 and 7 are likewise DISMISSED WITHOUT PREJUDICE. Plaintiff shall have seven (7) days from the date of this Order to file an amended complaint addressing the deficiencies in Counts 4, 5 and 6 with respect to Cancienne, Cook, Detillier, Steib, Robichaux, Folse and Louque, and to address the deficiencies in Counts 1-7 with respect to St. James Parish School Board. IT IS FURTHER ORDERED that Defendants' request for attorneys fees is DENIED. Signed by Judge Wendy B Vitter on 3/31/2021. (jeg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATASHA CUBAS
CIVIL ACTION
VERSUS
NO. 20-1322-WBV-KWR
ST. JAMES PARISH SCHOOL
BOARD, ET AL.
SECTION: D (4)
ORDER AND REASONS
Before the Court is a Rule 12(b)(1) and (6) Motion to Dismiss, filed by
defendant, Paul McDonald.1 Also before the Court is a Rule 12(b)(1) and (6) Motion
to Dismiss, filed by defendants, St. James Parish School Board, P. Edward
Cancienne, Jr., Kelly Cook, Anne Detillier, Vondra Steib, Sabra Robichaux, Hollie
Folse, and Becky Louque.2 Latasha Cubas filed one Opposition brief in response to
both motions.3
After careful consideration of the parties’ memoranda and the
applicable law, both Motions to Dismiss are GRANTED in part and DENIED in
part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This is an employment discrimination case. Latasha Cubas filed a Complaint
in this Court asserting employment discrimination claims under Louisiana and
federal law against St. James Parish School Board, P. Edward Cancienne, Jr., in his
individual and official capacity as Superintendent of St. James Parish Schools, Kelly
R. Doc. 14.
R. Doc. 16.
3 R. Doc. 17.
1
2
Cook, in her individual and official capacity as Administrator/Director of Student
Services of St. James Parish Schools, Anne Detillier, in her individual and official
capacity as Director of Teaching and Learning K-12, Vondra Steib, in her individual
and official capacity as Director of Special Education, Sabra Robichaux, in her
individual and official capacity as Pupil Appraisal/504 Coordinator,4 Hollie Folse, in
her individual and official capacity as principal of Paulina Elementary School, Becky
Louque, in her individual and official capacity as Virtual Academy Principal and Paul
McDonald, in his individual and official capacity as Special Education Consultant at
St. James Parish School Board.5
Plaintiff asserts that she has exhausted her
administrative remedies by filing a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), on February 7, 2020, which issued
a right to sue letter that same day.6
Plaintiff alleges that she was hired as a school psychologist by St. James Parish
School Board in March 2015, and that her job duties included evaluating pupils to
determine whether they qualified for special education, accommodations and gifted
and talented programs.7 Without specifying when the illegal activity began, Plaintiff
alleges that she complained of illegal activity by defendants, Detillier, Steib,
Robichaux, Folse, Louque, McDonald and Cancienne to her immediate supervisors,
It is unclear to the Court whether Detillier, Steib and Robichaux are sued in their official capacities
for their roles with the St. James Parish School Board or St. James Parish Schools, as the Complaint
includes claims against these three defendants in their official capacities “at SJPB,” but provides no
definition for the term “SJPB.” (R. Doc. 1 at p. 2). The Court notes that the Complaint only defines
“SJPS” as “Saint James Parish School.” Id. at ¶ (c).
5 Id. at pp. 1-3.
6 Id. at p. 3.
7 Id. at p.3, ¶¶ 1-2.
4
Robichaux and Steib, “continuously throughout her employment.”8
Such illegal
conduct includes changing student evaluations, illegally falsifying official documents,
discrimination against minorities and special education students, destruction of test
protocols and student folders, failing to provide special education services and refusal
to provide other needed services, failing to comply with and changing students’
Individualized Education Plans, backdating official documents, and changing
evaluations “to change the trajectory of children [sic] lives to fit the nonscientific
evaluation of principal and make evaluation due to political connection and who
parents are and not the abilities of the child.”9 Plaintiff claims that after reporting
this activity, she was labeled a “troublemaker” and a “roadblock” by coworkers and
her supervisors, Robichaux, Steib, Detillier, and Folse.10 Plaintiff contends that she
“continuously complained and continuously reported the illegal activity to her
supervisors throughout her employment,” with the last major incidents occurring on
August 20, 2019 and October 15, 2019.11
Plaintiff alleges that on August 20, 2019, she was called into a meeting with
Cancienne, the Parish Superintendent, and 22 other people, during which Cancienne
told Plaintiff she could “get on the boat or get off the boat,” and that school principals
would be making decisions regarding special education.12 When Plaintiff challenged
this directive as illegal during the meeting, Cancienne allegedly told Plaintiff to make
Id. at pp. 3-4, ¶¶ 3-4.
Id. at pp. 3-5, ¶ 3.
10 Id. at p. 5, ¶ 5.
11 Id. at p. 5, ¶ 6.
12 Id. at pp. 5-6, ¶ 7.
8
9
her evaluations fit the determinations made by the principal and then belittled and
berated Plaintiff.13 Plaintiff alleges that she informed Cook of the “illegal activity,
the harassment by her supervisor, and the retaliation,” and Cook advised that she
would investigate the allegations. Although Cook later advised Plaintiff that her
complaints were valid, Cook told Plaintiff that she did not want to take any remedial
actions because “it could open up a can of worms and there would be no turning
back.”14 Plaintiff alleges that the harassment, complaints about her job performance,
retaliation and treatment by her supervisor got worse at that point. According to
Plaintiff, Folse “began to make false accusations regarding Plaintiff’s work, spreading
lies and rumors about the Plaintiff, making the job more difficult by adding
unnecessary tasks to job responsibilities,” and Steib and Cook told Plaintiff that they
were going to get rid of her.15 Plaintiff asserts that she was not given assistance or
support, and that she reported all of the behavior to Robichaux, Steib, and Detillier.16
Plaintiff alleges that another meeting was held on October 15, 2019, during
which she told her supervisors that she would not change special education
evaluations or break the law and that she was told to “just bend the law” and to “water
herself down.”17 During that meeting Plaintiff “informed everyone present that what
was being done was illegal.”18 Plaintiff asserts that the “harassment, verbal attacks,
and criticism [sic], alienating, name calling [sic] continued,” and that her supervisors
Id. at p. 6, ¶ 9.
Id. at p. 7, ¶ 11.
15 Id. at ¶ 14.
16 Id. at ¶¶ 14-15.
17 Id. at ¶ 16.
18 Id.
13
14
continued to make “horrible complaints” regarding her job performance.19 Plaintiff
claims that, “Paul McDonald even joined in the retaliation by telling Plaintiff to stay
in her lane and cursing her and berating her for standing up to illegal activity.” 20
Plaintiff alleges that she began experiencing mental health issues due to the
workplace conditions and submitted her letter of resignation on December 20, 2019.21
Plaintiff filed her Complaint on May 1, 2020, asserting claims of employment
discrimination under Louisiana and federal law. In Counts 1 through 3, Plaintiff
alleges that all of the defendants violated Title VII of the Civil Rights Act. 42 U.S.C.
§2000, et seq. through unlawful retaliation and constructive discharge, race
discrimination and harassment based on Plaintiff’s race and sex.22 Plaintiff also
alleges race discrimination under La. R.S. 23:301, the Louisiana Employment
Discrimination Law in Count 2.23 In Count , Plaintiff alleges a 42 U.S.C. § 1983 First
Amendment Retaliation claim against all of the defendants.24 Plaintiff’s additional
state law claims are asserted in Counts 5 through 7, including a claim for defamation
in Count 5, a claim for intentional infliction of emotional distress in Count 6, and a
claim under the Louisiana Whistleblower statute, La. R.S. 23:967, in Count 7.25
Plaintiff seeks damages in the form of back pay, front pay, non-pecuniary losses
Id. at pp. 7-8, ¶ 17.
Id.
21 Id. at p. 8, ¶¶ 18-19.
22 Id. at pp. 8-10.
23 Mistakenly referenced in Plaintiff’s Complaint as “Louisiana R.S. 23:01 et. al.” Id. at p. 9.
24 Id. at p. 10.
25 Id. at pp. 11-14.
19
20
including emotional distress, damages for loss of enjoyment and humiliation, past
and future pecuniary losses, punitive damages, and attorneys’ fees and costs.26
On July 15, 2020, Paul McDonald (“McDonald”), in his individual and official
capacity as Special Education Consultant at St. James Parish School Board, filed the
instant Motion to Dismiss, seeking to dismiss all of Plaintiff’s claims under Fed. R.
Civ. P. 12(b)(1) and (b)(6).27 The remaining defendants – St. James Parish School
Board, Cancienne, Cook, Detillier, Steib, Robichaux, Folse and Louque (collectively,
“the remaining Defendants,” or individually by their last name) – filed an identical
Motion to Dismiss under Rule 12(b)(1) and 12(b)(6) on the same day, asserting similar
arguments to McDonald.28 As such, the Court will discuss the Motions to Dismiss
together when appropriate and, in doing so, will refer to all of the defendants
collectively as “Defendants.”
Defendants seek dismissal under Rule 12(b)(1) based upon Plaintiff’s alleged
failure to exhaust her administrative remedies, which indicates a lack of subject
matter jurisdiction.29 Defendants claim that Plaintiff’s Right to Sue letter from the
EEOC fails to include any factual allegations, although the letter references an
attached summary of allegations that is not attached to the Complaint and had not
been provided to any of the defendants as of the date of their Motions to Dismiss,
despite their request.30 Defendants also point out that the Right to Sue letter was
Id. at pp. 14-15.
R. Doc. 14.
28 R. Doc. 16.
29 R. Doc. 14 at p. 1, n.1; R. Doc. 14-1 at p. 18, n.1; R. Doc. 16 at p. 1, n.1; R. Doc. 16-1 at p. 19, n.3.
30 R. Doc. 14-1 at p. 49; R. Doc. 16-1 at p. 50.
26
27
issued the same day that the EEOC charge was filed, and that the purpose of the
exhaustion doctrine “to facilitate the EEOC’s investigation and conciliatory functions
and to recognize its role as primary enforcer of anti-discrimination laws” cannot be
fulfilled under such facts.31 Defendants contend that, since the scope of a Title VII
complaint is limited to the allegations in the EEOC charge and Defendants have not
received the factual summary that was attached to Plaintiff’s EEOC charge, then all
of her Title VII claims should be deemed outside of the EEOC charge and dismissed.32
Defendants contend that the checking of three boxes on the EEOC charge is
insufficient to establish any baseline facts in this case.33
Defendants also seek dismissal of all of Plaintiff’s claims under Fed. R. Civ. P.
12(b)(6) for failure to state a claim.34 Defendants seek dismissal of the Title VII
claims asserted against the individual defendants in Counts 1 through 3 of the
Complaint on the basis that Title VII only allows claims against employers, not
individuals.35 Similarly, Defendants assert that Counts 2 and 7 should be dismissed
because neither La. R.S. 23:301, as asserted by Plaintiff in Count 2, nor the Louisiana
Whistleblower statute, La. R.S. 23:967, as asserted by Plaintiff in Count 7, allows for
R. Doc. 14-1 at p. 49 (quoting Williams v. E.I. Dupont, 154 F. Supp. 3d 407 (M.D. La. 2015) (internal
quotation marks omitted); R. Doc. 16-1 at p. 50 (quoting Williams, 154 F. Supp. 3d 407).
32 R. Doc. 14-1 at pp. 49-50; R. Doc. 16-1 at pp. 50-51.
33 R. Doc. 14-1 at p. 50; R. Doc. 16-1 at p. 51.
34 R. Docs. 14 & 16.
35 R. Doc. 14-1 at p. 19 (citing Smith v. Amedisys, Inc., 298 F.3d 434, 448-49 (5th Cir. 2002); Grant v.
Lone Star Co., 21 F.3d 649 (5th Cir. 1994); Ackel v. National Communications, 339 F.3d 376, 382 (5th
Cir. 2003); Hunter v. Jefferson Parish Public School Sys., Civ. A. No. 17-2015, 2017 WL 2910992 (E.D.
La. July 7, 2017); Umoren v. Plano Indep. School Dist., 457 Fed.Appx. 422 (5th Cir. 2012); Foley v.
University of Houston System, 355 F.3d 333, 340 (5th Cir. 2003)); R. Doc. 16-1 at pp. 19-20 (citing same
authority).
31
claims against individuals.36 Defendants further assert that the claims brought
against them in their official capacities as employees of St. James Parish School
Board in Counts 1 through 4 are redundant of the claim brought against Plaintiff’s
employer, St. James School Board, and should likewise be dismissed.37
Defendants next assert that Plaintiff’s Title VII claims of discrimination,
harassment, and retaliation, asserted in Counts 1 through 3, should be dismissed for
failing to allege that any such actions were taken based on her membership in a
protected class, such as her race or gender, or were racially motivated.38 Defendants
further assert that Plaintiff’s Title VII claims in Counts 1 through 3, her § 1983
retaliation claim in Count 4, and her claims under the Louisiana Employment
Discrimination Law, La. R.S. 23:301, in Count 2 and Louisiana’s Whistleblower
statute, La. R.S. 23:967, in Count 7, must also be dismissed because Plaintiff has
failed to allege any adverse employment action and/or constructive discharge, as
required by Title VII.39 Citing Fifth Circuit precedent, Defendants assert that a
stringent showing is required for adverse employment action and Title VII “does not
set forth ‘a general civility code for the American workplace.’” 40 Defendants then go
R. Doc. 14-1 at p. 19 (citing Goulas v. LaGreca, 945 F. Supp. 2d 693 (E.D. La. 2013); Broussard v.
Lafayette City-Parish Consol. Government, 45 F. Supp. 3d 553 (W.D. La. 2014); Mays v. Bd. of
Commissioners Port of New Orleans, Civ. A. No. 14-1014, 2015 WL 1245683 (E.D. La. Mar. 18, 2015));
R. Doc. 16-1 at p. 20 (citing same authority).
37 R. Doc. 14-1 at pp. 19-20 (citing authority); R. Doc. 16-1 at pp. 20-21 (citing same authority).
38 R. Doc. 14-1 at pp. 20-22; R. Doc. 16-1 at pp. 21-22.
39 R. Doc. 14-1 at pp. 22-25; R. Doc. 16-1 at pp. 22-26.
40 Id., quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68, 126 S.Ct. 2405 and Pegram v.
Honeywell, Inc., 361 F.2d 272, 282 (5th Cir. 2004).
36
into great detail as to why each cause of action in the Complaint fails to state a
plausible claim against them.41
Additionally, Defendants contend that Plaintiff has failed to comply with the
notice pleading requirement of the Federal Rules of Civil Procedure by lumping her
allegations against the defendants together in a group, rather than asserting specific
allegations against each individual defendant.42 Relying on a case from another
Section of this court, Defendants argue that the Court should ignore allegations made
against the “defendants” or “supervisors” as a group, and view only those allegations
specific to individual defendants.43 Defendants further assert that if all of Plaintiff’s
federal claims are dismissed, the Court should not exercise supplemental jurisdiction
over any remaining state law claims under 28 U.S.C. § 1367.44 Defendants argue
that Plaintiff is not entitled to punitive damages because punitive damages aren’t
allowed against municipal bodies, like St. James School Board, under Title VII or §
1983, and because there are no viable claims against the individual defendants. 45
Finally, Defendants seek an award of attorney’s fees under 42 U.S.C. § 1988 on the
basis that Plaintiff’s Title VII or § 1983 claims are frivolous.46
R. Doc. 14-1 at pp. 25-48; R. Doc. 16-1 at pp. 26-49.
R. Doc. 14-1 at pp. 48-49; R. Doc. 16-1 at pp. 49-50.
43 R. Doc. 14-1 at pp. 48-49 (quoting Cain v. City of New Orleans, Civ. A. No. 15-4479, 2016 WL 2849498
(E.D. La. May 13, 2016)) (internal quotation marks omitted); R. Doc. 16-1 at pp. 49-50 (quoting Cain,
Civ. A. No. 15-4479, 2016 WL 284949) (internal quotation marks omitted). Defendants also attempt
to argue that any Title VII claims based upon acts that occurred before May 8, 2019 are time-barred,
but Defendants fail to explain how they reached the date calculated in their Motions. (See, R. Doc. 141 at pp. 50-51; R. Doc. 16-1 at p. 51). Defendants also assert that any § 1983 claim or state law claim
based upon acts that occurred before May 1, 2019 are also time-barred. (R. Doc. 14-1 at p. 51; R. Doc.
16-1 at p. 52).
44 R. Doc. 14-1 at p. 51; R. Doc. 16-1 at p. 52.
45 R. Doc. 14-1 at pp. 51-52; R. Doc. 16-1 at pp. 52-53.
46 R. Doc. 14-1 at p.52; R. Doc. 16-1 at p. 53.
41
42
Plaintiff filed one Opposition brief in response to both Motions, arguing that
her Complaint satisfies the federal pleading requirement of Fed. R. Civ. P. 8 by
offering a short, concise statement of her claims.47 Plaintiff asserts that she is “not
required to nor should they [sic] allege each and every fact and each and every
allegation.”48 While Plaintiff discusses the requirements of a Rule 12(b)(6) motion to
dismiss, generally, she only fleetingly responds to the specific arguments made by
Defendants in their Motions to Dismiss.
Instead of addressing Defendants’
arguments, Plaintiff asserts that Defendants’ Motions ask the Court to draw legal
conclusions, which is not permitted in a Rule 12(b)(6) analysis.49 Plaintiff further
points out that, “90% of the case [sic] cited by Defendant’s [sic] are Motion for
Summary Judgment cases.
In those cases, the Court is allowed to draw legal
conclusions and that is exactly what the Defendants are asking this court to do in
this 12(b)(6) Motion.
The Defendants essentially filed a Motion for Summary
Judgment.”50 Interestingly, Plaintiff concedes that, “A [Rule] 12(b)(6) Motion is
designed to dismiss claims that can not [sic] meet the statutory requirements at all
such as a claim against an individual under Title VII.”51 Plaintiff does not address
the fact that she has filed Title VII claims against several individuals other than her
employer. Plaintiff also contends that Defendants’ assertions that she had no adverse
employment action and was not constructively discharged are not supported by the
R. Doc. 17 at p. 2.
Id.
49 Id. at pp. 1-3.
50 Id. at p. 2.
51 Id. at p. 3.
47
48
facts in the Complaint, nor are Defendants’ statement that there was no racial
animus.52 The Court notes that Plaintiff’s Opposition brief is replete with rhetorical
questions, such as, “Would any attorney in this case not quit a job if it risked them
being permanently disbarred? Like not being able to practice law at all. Something
they spent 7 years of their life working to get. Would they not consider that
constructive discharge especially if there was constant pressure over a 4 year
period?”53 Regarding racial animus, Plaintiff asserts that::
One, there are several racial comments that were made to Plaintiff , [sic]
but one of the most derogatory is when Dr. Cancienne states that it was
New Day [sic] in St. James and Plaintiff needed to decide if she was
going to get on the boat or off the boat because the “General” had spoken
and basically not to worry about the children if their own parents are
not. [sic] What boat is he referring to? A slave boat? Why the General
reference? Is it a slavery General?54
Plaintiff asserts that Defendants’ Motions should be denied because, “if not it will
have this court go through every section of the complaint and make legal conclusions
which Plaintiff would then amend to fix which would be pointless.” 55
Plaintiff
concludes by asserting that the Motions to Dismiss should be denied, but if they are
granted, “Plaintiff should be allowed to amend [sic] complaint consistent with courts
[sic] ruling.”56
Id. at pp. 3-4.
Id. at p. 3.
54 Id.
55 Id. at p. 5 (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).
56 R. Doc. 17 at p. 5.
52
53
II.
LEGAL STANDARD
A. Fed. Rule of Civil Procedure 12(b)(1) Standard
A motion to dismiss filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure allows a party to challenge the subject matter jurisdiction of the district
court to hear a case.57 A case is properly dismissed pursuant to Rule 12(b)(1) “for lack
of subject-matter jurisdiction when the court lacks the statutory or constitutional
power to adjudicate the case.”58
In considering a challenge to subject matter
jurisdiction under Rule 12(b)(1), “the district court is ‘free to weigh the evidence and
resolve factual disputes in order to satisfy itself that it has the power to hear the
case.’”59 Thus, a motion to dismiss for lack of jurisdiction may be decided by the Court
based on: (1) the complaint alone; (2) the complaint and the undisputed facts in the
record; or (3) the complaint, the undisputed facts in the record, and the court’s own
resolution of disputed facts.60 The party asserting jurisdiction carries the burden of
proof when facing a Rule 12(b)(1) motion to dismiss.61 A motion to dismiss under
12(b)(1) should only be granted “if it appears certain that the plaintiff cannot prove
any set of facts in support of his claim that would entitle plaintiff to relief.”62
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citing Home Builders Ass'n of Miss.,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).
59 Krim, 402 F.3d at 494 (quoting Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010).
60 Flores v. Pompeo, 936 F.3d 273, 276 (5th Cir. 2019) (quoting Robinson v. TCI/US W. Commc’ns Inc.,
117 F.3d 900, 904 (5th Cir. 1997)) (internal quotation marks omitted).
61 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011) (citing Ramming, 281
F.3d at 161).
62 Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010).
57
58
B. Fed. Rule of Civil Procedure 12(b)(6) Standard
It is well-settled in this Circuit that motions to dismiss under Fed. R. Civ. P.
12(b)(6) are viewed with disfavor and are rarely granted.63 To overcome a defendant’s
motion to dismiss, a plaintiff must plead a plausible claim for relief.64 A claim is
plausible if it is pleaded with factual content that allows the court to reasonably infer
that the defendant is liable for the misconduct alleged.65 But, no matter the factual
content, a claim is not plausible if it rests on a legal theory that is not cognizable.66
In ruling on a motion to dismiss, the Court accepts all well-pleaded facts as true and
views those facts in the light most favorable to the plaintiff.67
However, the
allegations must be enough to raise a right to relief above the speculative level on the
assumption that all of the complaint’s allegations are true.68 “[C]onclusory allegations
or legal conclusions masquerading as factual conclusions will not suffice to prevent a
motion to dismiss.”69
In deciding a Rule 12(b)(6) motion to dismiss, a court is
generally prohibited from considering information outside the pleadings, but may
consider documents outside of the complaint when they are: (1) attached to the
motion; (2) referenced in the complaint; and (3) central to the plaintiff’s claims.70 The
Financial Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006) (quoting Lowrey
v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).
64 Romero v. City of Grapevine, Tex., 888 F. 3d 170, 176 (5th Cir. 2018) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
65 Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).
66 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F. 3d 1029, 1032 (5th Cir. 2010)
(per curiam).
67 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
68 Bell Atlantic v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
69 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (internal citations omitted).
70 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).
63
Court can also take judicial notice of matters that are of public record, including
pleadings that have been filed in a federal or state court.71
III.
ANALYSIS
A. Defendants’ Motions to Dismiss Pursuant to Rule 12(b)(1)
As a threshold matter, the Court addresses its subject matter jurisdiction in
this case. Plaintiff has asserted claims under Title VII of the Civil Rights Act and 42
U.S.C. § 2000, et seq., 42 U.S.C. § 1983, as well as various state law claims.72 Since
Plaintiff’s claims arise under federal law, the Court has original jurisdiction under
28 U.S.C. §§ 1331 and 1343, and may exercise supplemental jurisdiction over the
state law claims pursuant to 28 U.S.C. § 1367.
In their Motions to Dismiss under Rule 12(b)(1), Defendants contend that
Plaintiff’s claims should be dismissed for failure to exhaust her administrative
remedies. Specifically, Defendants assert that Plaintiff filed her charge with the
EEOC on February 7, 2020 and the EEOC issued its right to Sue letter the same
day.73 Since Plaintiff attached the EEOC Charge of Discrimination and Right to Sue
letter to her Complaint, the Court may consider them for purposes of the Motions to
Dismiss. While it appears correct that Plaintiff filed her Charge of Discrimination
with the EEOC and was issued a Right to Sue letter the same day, it does not
naturally follow either that Plaintiff failed to exhaust her administrative remedies
In re American Intern. Refinery, 402 B.R. 728, 749 (W.D. La. 2008) (citing Cisco Systems, Inc. v.
Alcatel USA, Inc., 301 F. Supp. 2d 599, 602 n.3 (E.D. Tex. 2004)).
72 Specifically, Plaintiff has asserted state law claims of defamation, intentional infliction of emotional
distress, and the violation of Louisiana’s Whistleblower statute, La. R.S. 23:967.
73 R. Doc. 14-1 at p. 49; R. Doc. 16-1 at p. 50.
71
or, secondly, that the Court lacks subject matter jurisdiction as a result.
The
Supreme Court and the Fifth Circuit Court of Appeals have addressed this very issue
and have determined that filing a timely charge of discrimination with the EEOC is
not a jurisdictional prerequisite to suit in federal court, but rather a condition
precedent, which on proper occasion may be equitably modified.74 Defendants do not
contest that Plaintiff timely filed her claim with the EEOC.
The only other issue raised by Defendants is whether Plaintiff’s failure to
provide Defendants with a full copy of her factual summary is fatal at this stage.
Defendants correctly assert that the scope of a Title VII complaint is limited to the
allegation of the EEOC charge.
In deciding whether Plaintiff has provided a
sufficient factual basis to allow for a Title VII claim, the Court is guided by the Fifth
Circuit’s directive that, “Mindful of the remedial and humanitarian underpinning of
Title VII and of the crucial role played by the private litigant in the statutory scheme,
courts construing Title VII have been extremely reluctant to allow procedural
technicalities to bar claims under the Act.” 75 The Fifth Circuit has made clear that
it does not require a Title VII plaintiff to “check a certain box or recite a specific
incantation to exhaust his or her administrative remedies before the proper agency.
Nor do we require, for purposes of exhaustion that a plaintiff allege a prima fac[i]e
case before the EEOC.”76 “Instead, the plaintiff’s administrative charge will be read
Fort Bend County, Texas v. Davis, 139 S.Ct 1843, 204 L.Ed.2d 116 (2019); Phillips v. Leggett & Platt,
Inc., 658 F.3d 452, 457 (5th Cir. 2011) (citing Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir.
2011)).
75 Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).
76 Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir. 2006) (citing Sanchez, 431 F.2d at 463).
74
somewhat broadly, in a fact-specific inquiry into what EEOC investigations it can
reasonably be expected to trigger.”77
In Plaintiff’s Charge of Discrimination filed with the EEOC, Plaintiff clearly
identifies herself as the complainant and identifies the St. James Parish School
System as the agency who is alleged to have discriminated against her. 78 Plaintiff
checked four boxes indicating the alleged discrimination was based on race, color, sex
and retaliation, and also checked a box indicating that it was a continuing action.
The Charge is silent as the particular facts. Instead, the Charge states, “See attached
sheet for summary.”79 The Right to Sue letter, which is also dated February 7, 2020,
is signed by the EEOC Director, Keith T. Hill, and copied to St. James Parish School
System.80 Plaintiff filed suit on May 1, 2020, within the 90-day window to timely file
suit after the issuance of the Right to Sue letter. Further, in the Complaint itself,
Plaintiff asserts that she followed St. James Parish School Board’s reporting policy
by complaining to the principal, then to supervisors, then to the Superintendent and
then to Cook of harassment and retaliation, prior to her resignation.81 In light of
these facts, that Plaintiff’s employer was aware of the basis of Plaintiff’s claims, both
from Plaintiff herself and from the EEOC when it sent a copy of the Charge of
Discrimination to St. James Parish School Board, and that Plaintiff did not file suit
until several months later, the Court makes the narrow finding that Plaintiff
Pacheco, 448 F.3d at 792.
R. Doc. 1-2 at p. 1.
79 Id.
80 Id. at p. 2.
81 See, R. Doc. 1 at pp. 6-7, ¶¶ 10, 15, p. 14 at ¶ 7.
77
78
exhausted her administrative remedies in this case.82 Therefore, to the extent that
Defendants seek dismissal under Rule 12(b)(1) based on Plaintiff’s failure to exhaust
administrative remedies, the Motions are denied without prejudice.
B. Motions to Dismiss Pursuant to Rule 12(b)(6)
Because there are two Motions to Dismiss before the Court, filed by the
individual defendants in this case and the St. James Parish School Board, the Court
finds it appropriate to discuss the sufficiency of Plaintiff’s allegations with respect to
the individual defendants before turning to the sufficiency of the allegations against
the St. James Parish School Board.
1. Claims Against “Defendants” and “Supervisors,” in globo.
In the Motions to Dismiss, Defendants assert that the Court should ignore any
allegations in the complaint made against the “defendants” or “supervisors,” in globo,
because group pleading fails to satisfy the notice pleading requirement of the Federal
Rules of Civil Procedure.83 Under the ordinary rules of notice pleading, set forth in
Fed. R. Civ. P. 8(a)(2), a complaint need only include a “short and plain statement of
the claim showing that the pleader is entitled to relief,” which statement must simply
“give the defendant fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.”84 The Fifth Circuit recently provided clarification regarding the
impact of group pleading, explaining that, “creating a category of multiple defendants
Defendants’ claims that they have not received Plaintiff’s Factual Summary, which was submitted
with Plaintiff’s Charge of Discrimination, as of the date of filing their Motions to Dismiss are more
appropriately addressed as discovery matters.
83 R. Doc. 14-1 at pp. 48-49; R. Doc. 16-1 at pp. 49-50.
84 Parker v. State of La. Dept. of Educ. Special School Dist., Civ. A. No. 07-369-C, 2007 WL 2751213,
at *2 (M.D. La. Sept. 18, 2007) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992,
152 L.Ed.2d 1 (2002)) (internal quotation marks omitted).
82
into a clearly defined term does not, of itself, warrant dismissal. But while referring
to a collective group of defendants is not a fatal pleading deficiency, ‘[e]ach defendant
is [still] entitled to know what he or she did that is asserted to be wrongful.’”85 The
Fifth Circuit further instructed that, “Because the notice pleading requirement of the
Federal Rules of Civil Procedure entitle each defendant to know what he or she did
that is asserted to be wrongful, allegations based on a ‘theory of collective
responsibility’ cannot withstand a motion to dismiss.”86
While the Court finds
Plaintiffs’ allegations against “Defendants,” in globo, are not sufficient under Fed. R.
Civ. P. 8(a)(2), because Rule 12(b)(6) motions to dismiss are viewed with disfavor in
this Circuit and are rarely granted,87 the Court will not dismiss Plaintiff’s allegations
or claims on the basis of her use of group pleading. Instead, the Court will analyze
the specific claims made by Plaintiff as to each defendant to determine whether
dismissal is warranted.
2. Plaintiff’s Individual and Official Capacity Claims Against Paul
McDonald, P. Edward Cancienne, Jr., Kelly Cook, Anne Detillier,
Vondra Steib, Sabra Robichaux, Hollie Folse, and Becky Louque.
a. Counts 1 Through 3 Are Dismissed With Prejudice.
In Counts 1 through 3 of the Complaint, Plaintiff asserts Title VII claims
against “Defendants,” in globo.88 Title VII of the Civil Rights Act, as amended,
Martinez v. City of North Richland Hills, 2021 WL 742662, at *4 (5th Cir. 2021) (quoting Heartland
Consumer Products LLC v. DineEquity, Inc., Civ. A. No. 1:17-CV-01035-SEB-TAB, 2018 WL 465784,
at *4 (S.D. Ind. Jan. 18, 2018)).
86 Martinez, 2021 WL 742662, at *4 (quoting Bank of Am., N.A. v. Knight, 725 F.33d 815, 818 (7th Cir.
2013)).
87 Financial Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006) (quoting Lowrey
v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).
88 R. Doc. 1 at pp. 8-10.
85
prohibits an employer from discriminating against an individual on the basis of race,
color, sex, national origin, or religion with respect to hiring, discharge, compensation,
promotion, classification, training, apprenticeship, referral for employment, or other
terms, conditions, and privileges of employment.89 The Fifth Circuit has expressly
held that Title VII allows for claims against employers, but that there is no individual
liability for employees under Title VII.90 “Thus, an employee or supervisor faces
liability solely in his official capacity.”91 Curiously, Plaintiff acknowledges in her
Opposition brief that claims against individuals under Title VII cannot meet the
statutory requirements.92 Accordingly, the Title VII claims in Counts 1 through 3 of
the Complaint asserted against the individual defendants in their individual
capacities must be dismissed.
Plaintiff’s Title VII claims against the individual defendants in their official
capacities must likewise be dismissed. The Fifth Circuit has made clear that, “a
plaintiff is not entitled to maintain a Title VII action against both an employer and
its agent in an official capacity.”93 As further explained by this Court, “Because an
official-capacity suit against a supervisor or other individual is actually a suit against
the employing corporation, a plaintiff may not maintain a Title VII action against
42 U.S.C. § 2000(e), et seq.
Smith v. Amedisys Inc., 298 F.3d 434, 448-49 (5th Cir. 2002) (citations omitted); Ackel v. Nat’l
Communications, Inc., 339 F.3d 376, 382 n.1 (5th Cir. 2003) (citing Smith, 298 F.3d at 448-49); Lefort
v. Lafourche Parish Fire Protection Dist. No. 3, 39 F. Supp. 3d 820, 824 (E.D. La. 2014) (citations
omitted).
91 Lefort, 39 F. Supp. 3d at 824.
92 R. Doc. 17 at p. 3.
93 Smith, 298 F.3d at 449 (citation omitted).
89
90
both an employer and its agent in an official capacity.”94 Here, Plaintiff has made no
allegation that any of the individual defendants were her employer or her employer’s
agent. Indeed, Plaintiff named her employer, St. James Parish School Board, as a
defendant in the suit.95 As such, Plaintiff cannot also maintain an action against the
individual defendants in their official capacities. The Court therefore dismisses
Plaintiff’s Title VII claims asserted against the individual defendants in their official
capacities in Counts 1 through 3 of the Complaint.
As no amendment can cure these deficiencies, Plaintiff will not be granted
leave to amend her Complaint as to the Title VII claims asserted against McDonald,
Cancienne, Cook, Detillier, Steib, Robichaux, False or Louque in their individual and
official capacities in Counts 1 through 3 of the Complaint.96
b. Plaintiff’s Claims under La. R.S. 23:301, in Count 2, and under the
Louisiana Whistleblower statute, La. R.S. 23:967, in Count 7, Are
Dismissed With Prejudice.
In Counts 2 and 7 of the Complaint, Plaintiff alleges that “Defendants”
discriminated against her because of her race in violation of La. R.S. 23:301 and
retaliated against her for refusing to violate Louisiana Bulletin 1508 regarding
special education policies and procedures in violation of La. R.S. 23:967.97 To the
extent these claims are alleged against the individual defendants in their individual
Lefort, 39 F. Supp. 3d at 824 (citing Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir.
1999); Smith, 298 F.3d at 449).
95 R. Doc. 1 at pp. 1-2, 3.
96 Because the Court finds that Plaintiff cannot assert a plausible claim under Title VII against the
individual defendants in their individual or official capacities, the Court need not address these
defendants’ additional arguments regarding why the Title VII claims asserted in Counts 1 through 3
of the Complaint must be dismissed as to them.
97 R. Doc. 1 at pp. 9, 12.
94
and official capacities, the Court finds that the claims must be dismissed because
Plaintiff has not alleged that any of the individual defendants were her employer.98
The Louisiana Employment Discrimination Law, La. R.S. 23:301, et seq., specifically
defines “employer,” in pertinent part, as:
a person, association, legal or commercial entity, the state, or any state
agency, board, commission, or political subdivision of the state receiving
services from an employee and, in return, giving compensation of any
kind to an employee. The provisions of this Chapter shall apply only to
an employer who employs twenty or more employees within this state
for each working day in each of twenty or more calendar weeks in the
current or preceding calendar year.99
Louisiana’s Whistleblower statute, La. R.S. 23:967, similarly provides that:
An employer shall not take reprisal against an employee who in good
faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is
in violation of state law.
(2) Provides information to or testifies before any public body conducting
an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice
that is in violation of law.100
Further, “For an employee to establish a claim under La. R.S. 23:967, she must prove
that her employer committed an actual violation of state law.”101 Again, Plaintiff
makes no claim that McDonald, Cancienne, Cook, Detillier, Steib, Robichaux, Folse
or Louque were her employer. Instead, Plaintiff has clearly identified her employer
as St. James Parish School Board and has named her employer as a defendant in this
See, Mays v. Board of Commissioners Port of New Orleans, Civ. A. No. 14-1014, 2015 WL 1245683,
at *6 (E.D. La. Mar. 18, 2015); Broussard v. Lafayette City-Parish Consol. Government, 45 F. Supp. 3d
553, 581 (W.D. La. 2014); Goulas v. LaGreca, 945 F. Supp.2d 693, 702-03 (E.D. La. 2013).
99 La. R.S. 23:302(2).
100 La. R.S. 23:967 (emphasis added).
101 Broussard, 45 F. Supp. 3d at 581 (quoting Stevenson v. Williamson, 547 F. Supp. 2d 544, 558 (M.D.
La. 2008), aff’d, 324 Fed.Appx. 422 (5th Cir. 2009); Goulas, 945 F. Supp. 2d at 702).
98
matter.102 Thus, Plaintiff’s claims against the individual defendants in their official
and individual capacities based upon alleged violations of La. R.S. 23:301 and La.
R.S. 23:967, as set forth in Counts 2 and 7 of the Complaint, must be dismissed.
As no amendment can cure these deficiencies, Plaintiff will not be granted
leave to amend her Complaint as to Counts 2 and 7 with respect to the individual
defendants.103
c. Plaintiff’s 42 U.S.C. § 1983 Claims Asserted in Count 4 Are
Dismissed Without Prejudice.
In Count 4 of the Complaint, Plaintiff alleges that “Defendants” violated 42
U.S.C. § 1983 by retaliating against her for engaging in “protected activity,” which
retaliation included being constructively discharged. 104 To state a viable § 1983
claim, the complaint must: (1) allege the violation of a constitutional right; and (2)
allege that the violation was committed by a person acting under color of state law.105
Although not a model of clarity, Plaintiff appears to allege a violation of her First
Amendment right by asserting that she “engaged in protected activity when she
reported the illegal activity.”106
According to the Fifth Circuit, to establish a prima facie case for First
Amendment retaliation, a public employee must show that:
(1) He suffered an adverse employment action;
R. Doc. 1 at pp. 1-2, 3.
Because the Court finds that Plaintiff cannot assert a plausible claim under La. R.S. 23:301 or La.
R.S. 23:967 against the individual defendants in their individual or official capacities, the Court need
not address these defendants’ additional arguments regarding why Counts 2 and 7 must be dismissed
as to them.
104 R. Doc. 1 at p. 10.
105 Rowley v. Tchefuncta Club Estates, Inc., 151 Fed.Appx. 349, 350 (quoting Cornish v. Corr. Servs.
Corp., 402 F.3d 545, 549 (5th Cir. 2005)) (internal quotation marks omitted).
106 R. Doc. 1 at p. 10.
102
103
(2) He spoke as a citizen, rather than pursuant to his official job duties;
(3) He spoke on a matter of public concern;
(4) His interest in the speech outweighed the government’s interest in
the efficient provision of public services; and
(5) His speech precipitated the adverse employment action.107
“Whether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement.”108 Addressing
the second factor set forth above, the Supreme Court has held that, “when public
employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.109 The Fifth Circuit has
further clarified that, “Under Garcetti, we must shift our focus from the content of
the speech to the role the speaker occupied when he said it.”110 Complaints made by
public employees “up the chain of command” at their workplace about job duties
normally fall outside of First Amendment protection.111
Such are the facts in this case. Plaintiff alleges that she was employed as a
school psychologist by St. James Parish School Board in 2015.112 Plaintiff also alleges
that she “continuously” reported the alleged illegal activity to her immediate
supervisors, Robichaux and Steib, through her employment.113 Plaintiff alleges that
she, “followed the Saint James Parish School Board’s reporting policy when she first
Hardesty v. Cochran, 621 Fed.Appx. 771, 775-76 (5th Cir. 2015) (citations omitted).
Goudeau v. East Baton Rouge Parish School Bd., 540 Fed.Appx. 429, 434 (5th Cir. 2013) (quoting
Charles v. Grief, 522 F.3d 508, 514 (5th Cir. 2008)) (internal quotation marks omitted).
109 Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006).
110 Williams v. Dallas Independent School Dist., 480 F.3d 689, 692 (5th Cir. 2007).
111 Davis v. McKinney, 518 F.3d 304, 313 & n.3 (5th Cir. 2008) (citing authority).
112 R. Doc. 1 at p. 3.
113 R. Doc. 1 at p. 5.
107
108
complained to the principal, then complained to supervisors, then complained to [sic]
superintendent and then complained to Ms. Cook and no remedial action was
taken.”114 Plaintiff asserts that she sent her resignation email directly to St. James
Parish School Board and that no one followed up with her even after she returned to
drop off equipment on January 3, 2020 and had a meeting with Detillier, Cook, Steib
and Carl Webre.115
Based on the foregoing legal authority, Plaintiff’s internal
complaints up the chain of command at her workplace, as alleged in the Complaint,
fall outside the scope of First Amendment protection. Thus, even accepting all wellpleaded facts as true and viewing those facts in the light most favorable to Plaintiff,
as the Court is required to do, the Court finds that Plaintiff has failed to assert a
plausible 42 U.S.C. § 1983 First Amendment Retaliation claim against the individual
defendants.
The Court further notes that Plaintiff has failed to allege anything other than
a conclusory statement that McDonald retaliated against her.116 While a complaint
need only provide a “short and plain statement of the claim showing that the pleader
is entitled to relief,”117 such a showing requires more than labels and conclusions.118
The Court rejects Plaintiff’s assertion that her allegation of retaliation by McDonald
constitutes a legal conclusion.
Id. at p. 14.
Id.
116 R. Doc. 1 at p. 8.
117 Fed. R. Civ. P. 8(a)(2).
118 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007).
114
115
d. Plaintiff’s Defamation Claims in Count 5 Are Dismissed Without
Prejudice.
According to the Louisiana Supreme Court, “Defamation is a tort which
involves the invasion of a person’s interest in his or her reputation and good name.”119
“Four elements are necessary to establish a defamation cause of action: (1) a false
and defamatory statement concerning another; (2) an unprivileged publication to a
third party; (3) fault (negligence or greater) on the part of the publisher; and (4)
resulting injury.”120 Additionally, “The fault requirement is often set forth in the
jurisprudence as malice, actual or implied.”121
“Thus, in order to prevail on a
defamation claim, a plaintiff must prove that the defendant, with actual malice or
other fault, published a false statement with defamatory words which caused plaintiff
damages.”122
In Count 5 of the Complaint, Plaintiff alleges that “Defendants” (including all
of the individual defendants) made defamatory statements concerning her job
performance and her reputation pursuant to a conspiracy.123 Plaintiff alleges that,
“Defendants publicized these unprivileged comments to Plaintiff’s coworkers and
supervisors,” and that, “Defendants were at very [sic] least negligent in publication
if not intentional.”124 Plaintiff makes only two specific allegations of defamation
against the individual defendants. Plaintiff alleges that Folse “began to make false
Costello v. Hardy, 2003-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 139 (citations omitted).
Costello, 2003-1146 at p.12, 864 So.2d at 139 (quoting Trentecosta v. Beck, 96-2388, p. 10 (La.
10/21/97), 703 So.2d 552, 559) (internal quotation marks omitted).
121 Costello, 2003-1146 at p.12, 864 So.2d at 139 (citations omitted).
122 Id. (quoting Trentecosta, 96-2388 at p. 10, 703 So.2d at 559) (internal quotation marks omitted)
123 R. Doc. 1 at p. 11.
124 Id.
119
120
accusations about Plaintiff’s job performance, questioning Plaintiff’s work, spreading
lies and rumors about the Plaintiff, and making the job more difficult by adding
unnecessary tasks to job responsibilities.”125 Plaintiff further alleges that during the
August 20, 2019 meeting, Cancienne “informed the Plaintiff that she could ‘get on the
boat or get off the boat’ and that the principals would be making decisions regarding
special education.”126
The Complaint is silent as to any specific allegation of
defamation by the other individual defendants.
While a Complaint need not contain detailed factual allegations, it must offer
more than mere labels, legal conclusions, or formulaic recitations of the elements of
a cause of action.127 That is, under Fed. R. Civ. P. 8, the complaint must offer more
than an “unadorned, the defendant-unlawfully-harmed-me accusation.”128 Plaintiff’s
threadbare Complaint, alleging that “Defendants” made false and defamatory
statements regarding Plaintiff’s work and communicated such statements to
Plaintiff’s co-workers, as well as the statements made by Folse and Cancienne,
without anything more, fail this test. Plaintiff’s allegations that Folse made “false
accusations” and “spread lies and rumors” about Plaintiff are conclusory and
insufficient to state a plausible claim for defamation against Folse. The Complaint
is silent as to who the “false accusations” were spread to, as well as the content of the
“false accusations.” The Court further finds that Plaintiff has not alleged that the
Id. at p. 7.
Id. at pp. 5-6.
127 Ashcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
128 Ashcroft, 556 U.S. at 667-78, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
125
126
comment made by Cancienne during the August 20, 2019 meeting was false or
defamatory in some way, nor has Plaintiff alleged that the comment was publicized
outside of the internal work meeting. Further, there is nothing in the Complaint
identifying the publication of any false accusations to third parties.
As such,
Plaintiff’s defamation claim asserted against the individual defendants in Count 5 of
the Complaint must be dismissed.
e. Plaintiff’s Claims for Intentional Infliction of Emotional Distress,
asserted in Count 6, Are Dismissed Without Prejudice.
In Count 6 of the Complaint, Plaintiff assets a claim for intentional infliction
of emotional distress against “Defendants” under Louisiana Civil Code art. 2315.129
A Louisiana claim for intentional infliction of emotional distress is actionable only if
the plaintiff can show: (1) that the defendant’s conduct was extreme and outrageous;
(2) that the plaintiff’s emotional distress was severe; and (3) that the defendant
desired to inflict severe emotional distress or knew that severe emotional distress
would be certain or substantially likely to result from his conduct.130 According to
the Louisiana Supreme Court, “The conduct must be so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.”131 The
Louisiana Supreme Court has further explained that:
Liability does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. Persons must
necessarily be expected to be hardened to a certain amount of rough
R. Doc. 1 at pp. 11-12.
McCoy v. City of Shreveport, 492 F.3d 551, 563 (5th Cir. 2007) (quoting White v. Monsanto, 585
So.2d 1205, 1209 (La. 1991)).
131 White, 585 So.2d at 1209.
129
130
language, and to occasional acts that are definitely inconsiderate and
unkind. Not every verbal encounter may be converted into a tort; on the
contrary, “some safety valve must be left through which irascible
tempers may blow off relatively harmless steam.”132
Here, Plaintiff alleges, generally, that “Defendants’ conduct was extreme and
outrageous and include [sic] a 4-year span of name-calling, beratement in front of
individuals, poor job performance, threats, intimidation tactics, and eventually
constructive discharge.”133 Plaintiff further alleges that her emotional distress was
severe and required her to be placed on medication and see a mental health
profession, and that, “Defendants desired to inflict severe emotional distress or
substantially certain [sic] to result from conduct.” 134
The Court finds these
allegations conclusory and insufficient to withstand a Rule 12(b)(6) motion. The
Court, however, will separately address the specific allegations made against each of
the individual defendants.
i.
McDonald and Cancienne
As to McDonald, Plaintiff asserts elsewhere in her Complaint that, “Paul
McDonald even joined in the retaliation by telling Plaintiff to stay in her lane and
cursing her and berating her for standing up to illegal activity.”135 Plaintiff similarly
alleges elsewhere in her Complaint that during the August 20, 2019 work meeting,
at which “22 other people were present,” Cancienne “informed the Plaintiff that she
could ‘get on the boat or get off the boat’ and that the principals would be making
Id. (citations omitted).
R. Doc. 1 at p. 12.
134 Id.
135 Id. at p. 8.
132
133
decisions regarding special education.”136 Plaintiff alleges that when she “spoke up”
and challenged Cancienne’s directive during the meeting, he began to “belittle,
scream, and berate the Plaintiff in front of everyone.”137
Plaintiff’s allegations,
without more, fail to satisfy the “extreme and outrageous” conduct required to assert
a plausible claim for intentional infliction of emotional distress against McDonald or
Cancienne.
Moreover, nowhere in the Complaint does Plaintiff allege any facts
suggesting that McDonald or Cancienne intended to inflict severe emotional distress
upon her or that they could have foreseen that such distress would result, as required
to state a viable claim. Thus, even accepting all of Plaintiff’s claims as true, as this
Court is bound to do at this stage, Plaintiff has failed to assert a plausible claim in
Count 6 against McDonald and Cancienne, in either their official or individual
capacities, for the intentional infliction of emotional distress.
ii.
Cook
Plaintiff alleges that she advised Cook of the alleged illegal activity and that
Cook “told her that she would investigate it and get back to her,” and “met with
Plaintiff several times.”138 Plaintiff asserts that Cook followed-up with her and
informed Plaintiff that she had “verified Plaintiff’s complaints and that it appeared
to be all valid but did not want to take any remedial actions because it could open up
a can of worms and there would be no turning back,” and that Cook informed her that
Plaintiff “just needed to just deal with it.”139 Plaintiff then alleges that Cook and
Id. at pp. 5-6.
Id. at p. 6.
138 Id. at pp. 6-7.
139 Id. at p. 7.
136
137
Steib told her that they were going to get rid of her.140 The Court finds that Plaintiff’s
allegations, without more, fail to satisfy the “extreme and outrageous” conduct
requirement to state a valid claim for intentional infliction of emotional distress.
Plaintiff also fails to allege any facts indicating that Cook intended to inflict severe
emotional distress upon her or that she could have foreseen that such distress would
result. Thus, accepting all of Plaintiff’s claims as true, Plaintiff has failed to assert a
plausible claim against Cook, in either in her official or individual capacity, for the
intentional infliction of emotional distress.
iii.
Detillier, Steib, Robichaux and Folse
In the Complaint, Plaintiff alleges that she complained about illegal activity to
Robichaux and Steib continuously throughout her employment and that Steib
reported the information to Detillier, but that nothing was done.141 Plaintiff claims
that she was labeled a troublemaker and a roadblock for reporting the illegal activity,
and that she was called this term to her face “by coworkers and Ms. Robichaux, Ms.
Steib and Ms. Detillier, and Ms. Folse [sic].”142 Plaintiff further alleges that when
she refused to engage in the illegal activity, “Plaintiff was informed by Anne Detillier
that St. James Parish School Board would be changing the Special Education Policies
and Procedures and the Plaintiff would then be required to follow the policies imposed
by the School Board, as the district policy would then override the state policy.” 143
Plaintiff asserts that Folse began to make false accusations about Plaintiff’s job
Id.
R. Doc. 1 at p. 5.
142 Id.
143 Id. at p. 13.
140
141
performance, questioning Plaintiff’s work, spreading lies and rumors about Plaintiff,
and making the job more difficult, and that Plaintiff was told by Steib and Cook that
they were going to “get rid of her.”144
The Court finds that these allegations fail to allege “extreme and outrageous
conduct” or that Detillier, Robichaux, Steib or Folse intended to inflict severe
emotional distress or could have foreseen that such distress would result, as required
to state a viable claim for intentional infliction of emotional distress. Instead, the
Court finds that the allegations are more akin to “mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities,”145 which do not arise to “extreme
and outrageous” conduct. As such, Plaintiff has failed to assert a plausible claim for
intentional infliction of emotional distress against Detillier, Robichaux, Steib or
Folse, in either their official or individual capacities, and that the claims must be
dismissed.
iv.
Louque
The only allegations pertaining to Louque in the Complaint include Plaintiff’s
assertion that she began complaining about illegal activity by all of the defendants,
including Louque, and that all of the defendants, including Louque, made defamatory
statements pursuant to a conspiracy.146 Louque is not mentioned by name anywhere
else in the Complaint.147 These allegations, without more, fail to assert a plausible
claim for intentional infliction of emotional distress against Louque. First, these
Id. at p. 7.
White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).
146 R. Doc. 1 at pp. 3, 11.
147 See, generally, R. Doc. 1.
144
145
allegations do not allege “extreme and outrageous” conduct, as Plaintiff fails to allege
anything even rising to the level of petty annoyance regarding Louque. Additionally,
Plaintiff fails to allege any facts suggesting that Louque intended to inflict severe
emotional distress upon her or that Louque could have foreseen that such distress
would result, as required to state a plausible claim for intentional infliction of
emotional distress. Even accepting all of Plaintiff’s claims as true, as this Court is
bound to do at this stage, Plaintiff has failed to assert a plausible claim against
Louque, in either her official or individual capacity, for intentional infliction of
emotional distress.
Based on the foregoing analysis, the Court finds that Plaintiff’s claims for
intentional infliction of emotional distress, asserted in Count 6 of the Complaint,
must be dismissed as to all of the individual defendants.
3. Plaintiff’s Claims Against St. James Parish School Board
a. Count 1: Retaliation Under Title VII.
Title VII makes it unlawful for an employer to discriminate against an
employee who has opposed an employment practice made unlawful by Title VII.148
To establish a prima facie case of unlawful retaliation under Title VII, Plaintiff must
show: (1) that she engaged in an activity protected by Title VII; (2) that an adverse
employment action occurred; and (3) that a causal link existed between the protected
activity and the adverse employment action.149 As to the first factor, “protected
Williams v. Recovery School District, 859 F. Supp. 2d 824, 830 (E.D. La. 2012) (citing 42 U.S.C. §
2000e-3(a)).
149 Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir. 2007) (citing Long v. Eastfield Coll., 88 F.3d 300,
304 (5th Cir. 1996)).
148
activity” includes making a charge, testifying, assisting, or participating in any
investigation, proceeding or hearing under Title VII.150 “Adverse employment action”
is defined as action that “a reasonable employee would have found . . . [to be]
materially adverse, which in [the retaliation] context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.”151
The Supreme Court has explained that the materiality
requirement reflects the importance of separating significant from trivial harms.152
Plaintiff has not alleged any facts specific to St. James Parish School Board
with respect to her Title VII retaliation claim in Count 1 of the Complaint. Although
Plaintiff does not have to submit evidence to establish a prima facie case of retaliation
at the pleading stage, she must plead facts as to all of the elements of her claim
sufficient to render the claim plausible.153 Plaintiff alleges that she engaged in
“protected activity” by reporting the illegal activity of the defendants.154 Plaintiff
then alleges that “Defendants,” presumably including St. James Parish School Board,
“harassed, verbally assaulted her, complained about her job performance, had her
colleagues and coworkers ostracize her, made false accusations against her, spread
Williams, 859 F. Supp. 2d at 830-31 (quoting Ackel v. Nat’l Communications, Inc., 339 F.3d 376,
385 (5th Cir. 2003) (internal quotation marks omitted).
151 Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008) (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)) (internal quotation
marks omitted).
152 Aryain, 534 F.3d at 484 (quoting White, 548 U.S. at 68, 126 S.Ct. 2405) (internal quotation marks
omitted).
153 Jones v. City of Monroe, Civ. A. No. 3:19-CV-00832, 2019 WL 5488603, at *11 (W.D. La. Oct. 8,
2019) (citing Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016)).
154 R. Doc. 1 at p. 8.
150
rumors about her and eventually constructively discharged her which amounts to a
materially adverse action taken by the Defendants.”155
The Court finds that Plaintiff has failed to allege sufficient facts to state a
plausible claim for retaliation under Title VII against St. James Parish School Board.
Although Plaintiff asserts that she engaged in protected activity by reporting “the
illegal activity” of her coworkers, Plaintiff is referring to actions taken by Defendants
regarding the special education services offered to students in St. James Parish. 156
Thus, Plaintiff has failed to allege that she engaged in a protected activity under Title
VII, as that phrase is defined in this Circuit. Plaintiff has also failed to allege an
“adverse employment action,” as the actions by Defendants of which she complains
fall into the category of “petty slights, minor annoyances, and simple lack of good
manners” that employees regularly encounter in the workplace, and which the
Supreme Court has recognized are not actionable retaliatory conduct.157
Additionally, “A constructive discharge occurs when the employer makes
working conditions so intolerable that a reasonable employee would feel compelled to
resign.”158 In determining whether an employer’s actions constitute a constructive
discharge, the Fifth Circuit has instructed this Court to consider the following
relevant factors: (1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) badgering,
Id.
R. Doc. 1 at pp. 3-5.
157 Aryain, 534 F.3d at 485 (citing White, 548 U.S.at 68, 126 S.Ct. 2405).
158 McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (quotation and internal quotation
marks omitted).
155
156
harassment, or humiliation by the employer calculated to encourage the employee’s
resignation; or (6) offers of early retirement that would make the employee worse off
whether the offer were accepted or not.159 While Plaintiff has alleged “harassment”
by the defendants, she has not alleged that the harassment by her employer – St.
James Parish School Board – was calculated to encourage her to resign. Thus, even
considering the allegations in the light most favorable to Plaintiff, the Court finds
that Plaintiff has failed to allege sufficient facts to show that a reasonable employee
in her position would have felt compelled to resign. As such, the Court finds that
Plaintiff has failed to state a plausible claim against St. James Parish School Board
for retaliation under Title VII, and that Count 1 must be dismissed as to it.
b. Count 2: Discrimination Under Title VII.
To state a claim for race discrimination under VII, a plaintiff must allege: (1)
that he is a member of a protected class; (2) that he was qualified for the position; (3)
that he suffered an adverse employment action; and (4) that others similarly situated
were more favorably treated.160 The Court finds that Plaintiff’s Complaint falls short
of stating a claim for race discrimination under Title VII against St. James Parish
School Board. While Plaintiff alleges that she is African American, at no point does
she allege that she was discriminated against based upon her race. Instead, Plaintiff
reasserts the same “materially adverse employment actions” alleged in Count 1 of the
Complaint, and further asserts that “her emails and phone calls were ignored by her
McCoy, 492 F.3d at 557 (citation omitted).
Williams v. Recovery School District, 859 F. Supp. 2d 824, 830 (E.D. La. 2012) (quoting Durkin v.
U.S. Postal Serv., 54 Fed.Appx. 794, 2002 WL 31845206, at *1 (5th Cir. 2002)) (internal quotation
marks omitted).
159
160
supervisors which made it impossible to complete her work and affected her job
performance.”161 Plaintiff does not allege that these actions were taken against her
based upon her race. Additionally, Plaintiff does not allege that others similarly
situated were more favorably treated. Instead, in a confusing paragraph of the
Complaint, Plaintiff alleges that:
Other non-African American and male employees were not treated like
Plaintiff and were not left to figure out work assignments, not called
derogatory names, reprimand [sic] publicly, encouraged to be called
name [sic] by supervisors and colleagues, phone calls and emails
regarding assignments that needed to be completed ignored, verbal
attacks by supervisors, lied on [sic] about job performance and
eventually constructively discharged.162
Such allegations are insufficient to state a viable claim against St. James Parish
School Board for discrimination under Title VII.
As such, the claim must be
dismissed.
c. Count 2: Discrimination Under La. R.S. 23:301.
Although not specifically mentioned in the substance of Count 2 of the
Complaint, the heading of Count 2 indicates that Plaintiff is asserting a claim against
the defendants, including St. James Parish School Board, based upon an alleged
violation of the Louisiana Employment Discrimination Law (“LEDL”), La. R.S.
23:301.163 As previously explained by this Court, “The LEDL – which prohibits an
employer from discriminating against an individual based on his race, color, religion,
sex, age or national origin – is similar in scope to Title VII’s prohibitions against
R. Doc. 1 at p. 9.
Id.
163 R. Doc. 1 at p. 9.
161
162
discrimination.”164
As such, “Federal courts look to Title VII jurisprudence to
interpret the LEDL.”165 Thus, for the same reasons set forth above with respect to
Plaintiff’s Title VII claim for discrimination, the Court finds that Plaintiff has failed
to assert a plausible LEDL claim against St. James Parish School Board.
d. Count 3: Harassment Under Title VII.
In Count 3 of the Complaint, Plaintiff alleges that she was subjected to a
hostile and offensive work environment based upon her race and sex, in violation of
Title VII.166 To establish a Title VII violation based on race discrimination creating
a hostile work environment, a plaintiff must prove that: (1) she belongs to a protected
group; (2) she was subjected to unwelcome harassment; (3) the harassment
complained of was based on race; (4) the harassment complained of affected a term,
condition, or privilege of employment; and (5) the employer knew or should have
known of the harassment in question and failed to take prompt remedial action. 167
“For harassment on the basis of race to affect a term, condition, or privilege of
employment, as required to support a hostile work environment claim under Title
VII, it must be ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’”168
Additionally, in
determining whether a workplace constitutes a hostile work environment, courts
must consider the frequency of the discriminatory conduct, its severity, whether it is
Harrell v. Orkin, LLC, 876 F. Supp. 2d 695, 701 (E.D. La. 2012).
Id. (citing Baker v. Fedex Ground Package Sys., 278 Fed.Appx. 322, 327 (5th Cir. 2008)).
166 R. Doc. 1 at pp. 9-10.
167 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (citations omitted).
168 Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
164
165
physically threatening or humiliating, or a mere offensive utterance, and whether it
unreasonably interferes with an employee’s work performance.”169
The Complaint contains three allegations regarding Plaintiff’s Title VII
harassment claim. First, Plaintiff alleges that she was subjected to:
intimidating, hostile and offensive work environment which included
being left to figure it out [sic] work assignments, called derogatory
names, reprimand [sic] publicly, encouraged to be called name [sic] by
supervisors and colleagues, phone call and emails regarding
assignments that needed to be completed ignored [sic] and verbal
attacks by supervisors, lied on [sic] about job performance and
eventually constructively discharged by Defendants. 170
Plaintiff then alleges that this conduct was due in part to her being a female and
African American. Finally, Plaintiff alleges that, “The environment was severe and
pervasive and altered the terms and conditions of her employment to the point that
she was constructively discharged and had to get professional help.”171
The Court finds these conclusory statements are insufficient to state a
plausible claim for Title VII harassment against St. James Parish School Board.
Although Plaintiff asserts the offensive conduct complained of was due to her race
and gender, the conduct and comments at issue are all race and gender neutral. In
fact, the Complaint is devoid of any allegations that the harassment at issue was
motivated by a discriminatory animus towards Plaintiff based upon her race or
gender. Indeed, a fair reading of the Complaint would find that any conduct towards
Plaintiff was the result of internal complaints by the Plaintiff, whether well-founded
Ramsey, 286 F.3d at 268 (quoting Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000) (internal
quotation marks omitted).
170 R. Doc. 1 at p. 9.
171 Id.
169
or not.
As such, the Court finds that Plaintiff has failed to state a Title VII
harassment claim against St. James Parish School Board.
e. Count 4: Plaintiff’s 42 U.S.C. § 1983 Claim.
The Fifth Circuit has held that, “Under § 1983, a municipality or local
governmental entity such as an independent school district may be held liable only
for acts for which it is actually responsible.”172 To establish municipal liability under
§ 1983, a plaintiff must show the deprivation of a federally protected right caused by
action taken “pursuant to an official municipal policy.”173 Thus, a plaintiff must
identify: (1) an official policy or custom; (2) of which a policymaker can be charged
with actual or constructive knowledge; and (3) a constitutional violation whose
moving force is that policy or custom.174
Count 4 of the Complaint contains no allegations that would support a § 1983
municipal liability claim. In Count 4, Plaintiff alleges that she was a public employee
who engaged in protected activity when she reported the illegal activity of the
defendants, and that, “Defendants harassed, verbally assaulted her, complained
about her job performance, had her colleagues and coworkers ostracize her, make
false accusations against her, spread rumors about , [sic] call her names and
eventually constructively discharged her because she engaged in protected
activity.”175 These allegations are insufficient to state a plausible § 1983 claim
Goudeau v. East Baton Rouge Parish School Bd., 540 Fed.Appx. 429, 437-38 (5th Cir. 2013) (quoting
Doe ex rel. Doe v. Dallas Indep. School Dist., 153 F.3d 211, 215 (5th Cir. 1998)).
173 Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010) (quoting Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).
174 Valle, 613 F.3d at 542 (quoting Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002)).
175 R. Doc. 1 at p. 10.
172
against St. James Parish School Board, as there is no allegation of a violation of her
constitutional rights or of a policy that was the moving force behind any such
violation. Thus, even accepting all well-pleaded facts as true and viewing those facts
in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to
state a viable § 1983 claim against St. James Parish School Board and that the claim
must be dismissed.
f. Count 5: Plaintiff’s Defamation Claim.
For the same reasons that the Court previously determined that the Complaint
fails to state a plausible defamation claim against the individual defendants, the
Court finds that the Complaint also fails to state a viable defamation claim against
St. James Parish School Board. To state a plausible defamation claim, a plaintiff
must allege: (1) a false and defamatory statement concerning another; (2) an
unprivileged publication to a third party; (3) fault (negligence or greater) on the part
of the publisher; and (4) resulting injury.176 Additionally, “The fault requirement is
often set forth in the jurisprudence as malice, actual or implied.”177
Plaintiff alleges in Count 5 that “Defendants,” including St. James Parish
School Board, made defamatory statements in the course and scope of Plaintiff’s
employment pursuant to a conspiracy and publicized the comments to Plaintiff’s
coworkers and supervisors.178 Plaintiff further asserts that, ”False and defamatory
statement [sic] were made concerning Plaintiff’s job performance as well as her
Costello v. Hardy, 2003-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 139 (quoting Trentecosta v.
Beck, 96-2388, p. 10 (La. 10/21/97), 703 So.2d 552, 559) (internal quotation marks omitted).
177 Costello, 2003-1146 at p.12, 864 So.2d at 139 (citations omitted).
178 R. Doc. 1 at p. 11.
176
reputation including allegations that she was not performing her work satisfactory
[sic], she had mental health issues and was a troublemaker and roadblock.” 179
Plaintiff further alleges that, “Defendants were at very [sic] least negligent in
publication if not intentional.”180 The Complaint is silent as to any specific allegation
of defamation by St. James Parish School Board.
While a Complaint need not contain detailed factual allegations, it must offer
more than mere labels, legal conclusions, or formulaic recitations of the elements of
a cause of action.181 Thus, under Fed. R. Civ. P. 8, the complaint must offer more
than an “unadorned, the defendant-unlawfully-harmed-me accusation.”182 Plaintiff’s
threadbare Complaint, alleging that “Defendants” made false and defamatory
statements regarding Plaintiff’s work and communicated such statements to
Plaintiff’s co-workers, without anything more, fails this test. The Complaint is silent
as to who the “false accusations” were spread to, as well as the content of the “false
accusations.” As such, Plaintiff has failed to state a plausible defamation claim
against St. James Parish School Board, and Count 5 must be dismissed as to it.
g. Count 6: Plaintiff’s Claim for Intentional Infliction of Emotional
Distress.
As previously discussed, a claim for intentional infliction of emotional distress
requires a showing that: (1) the defendant’s conduct was extreme and outrageous; (2)
the plaintiff’s emotional distress was severe; and (3) the defendant desired to inflict
Id.
Id.
181 Ashcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
182 Ashcroft, 556 U.S. at 677–78, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
179
180
severe emotional distress or knew that severe emotional distress would be certain or
substantially likely to result from his conduct.183 In Count 6 of the Complaint,
Plaintiff alleges that, “Defendants’ conduct was extreme and outrageous and include
[sic] a 4-year span of name calling, beratement in front of individuals, poor job
performance, threats, intimidation tactics, and eventually constructive discharge,”
and that her emotional distress “was severe and required her to be placed on
medication and see a mental health professional.”184 Plaintiff further alleges that,
“Defendants desired to inflict severe emotional distress or substantially [sic] certain
to result from conduct.”185
These allegations, without more, fail to assert a plausible claim for intentional
infliction of emotional distress against St. James Parish School Board. First, these
allegations do not allege “extreme and outrageous” conduct, as Plaintiff fails to allege
any specific conduct by St. James Parish School Board.
The Court finds these
allegations more akin to “mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities,” which do not rise to the level of defamation.186
Additionally, Plaintiff fails to allege any facts suggesting that St. James Parish
School Board intended to inflict severe emotional distress upon her or that it could
have foreseen that such distress would result, beyond a mere conclusory statement
to that effect. As such, even accepting all of Plaintiff’s claims as true, the Court finds
that Plaintiff has failed to assert a plausible claim against St. James Parish School
McCoy v. City of Shreveport, 492 F.3d 551, 563 (5th Cir. 2007).
R. Doc. 1 at pp. 11-12.
185 Id. at p. 12.
186 White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991).
183
184
Board for intentional infliction of emotional distress, and that the claim must be
dismissed.
h. Count 7: Plaintiff’s Claim for Alleged Violations of Louisiana’s
Whistleblower Statute, La. R.S. 23:967.
Louisiana’s Whistleblower statute, La. R.S. 23:967, provides, in pertinent part,
that:
A. An employer shall not take reprisal against an employee who in good
faith, and after advising the employer of the violation of the law:
(1) Discloses or threatens to disclose a workplace act or practice
that is in violation of state law.
(2) Provides information to or testifies before any public body
conducting an investigation, hearing or inquiry into any violation
of law.
(3) Objects to or refuses to participate in an employment act or
practice that is in violation of the law.187
One of our sister courts has held that to establish a prima facie case under the
Louisiana Whistleblower statute, a plaintiff “must establish that she possessed
the knowledge that a certain workplace practice amounted to a violation of
state law at the time she refused to participate in the practice or informed the
employer of her intention to report the practice to the authorities.”188
Here, Plaintiff alleges that, “Defendants’ violated [sic] Louisiana
Bulletin 1508 special education policies and procedures and IDEA,” that she
continuously advised Defendants of these violations, that she refused to
participate in the prohibited practice and that Defendants retaliated against
La. R.S. 23:967(A).
Williams v. Hospital Service District of West Feliciana Parish, Louisiana, 250 F. Supp. 3d 90, 97
(M.D. La. 2017) (citing Hale v. Touro Infirmary, 2004-0003 (La. App. 4 Cir. 11/3/04), 886 So.2d 1210,
1215) (emphasis in original).
187
188
her when she refused to do so.189 Specifically as to St. James Parish School
Board, Plaintiff alleges that:
St. James School Board implicit [sic] policy, practice and custom was to
engage in illegal activity outlined in Paragraph (1-19) [sic] . . . and was
the main force behind the practices outlined . . . and was carried out by
Superintendent P. Edward Cancienne with instruction of the Saint
James Parish School Board or with blind indifference by the Saint
James Parish School Board.190
Plaintiff asserts that she was informed by Cancienne that “he was in talks with
the Saint James Parish School Board that would change the currently illegal
policy to allow Saint James Parish principals to override evaluations.”191
Plaintiff also alleges that when she refused to engage in the illegal activity,
Detillier informed her that St. James Parish School Board would be changing
the special education policies and procedures and that Plaintiff “would then be
required to follow the policies imposed by the School Board, as the district
policy would then override the state policy.”192
Plaintiff further alleges that Cook informed her that she would “speak
to them and nothing was again done, and the illegal activity, harassment, and
intimidation got worse for Plaintiff.”193
Plaintiff alleges that the actions
complained of in her Complaint “had been going on for over 4 years with
several complaints, and thus became the custom of Saint James Parish School
R. Doc. 1 at p. 12.
Id. at p. 13.
191 Id.
192 Id.
193 Id.
189
190
Board.”194 Plaintiff further alleges that she followed St. James Parish School
Board’s reporting policy by bringing her complaints to the principal, then to
supervisors, then to the Superintendent and then to Cook, but that no remedial
action was ever taken.
Finally, Plaintiff alleges that she emailed her
resignation letter directly to St. James Parish School Board and that no one
reached out to her even after she returned on January 3, 2020 to drop off
equipment and attend a meeting with Detillier, Cook, Steib and Carl Webre.195
Noticeably absent from Plaintiff’s Complaint is any allegation that St.
James Parish School Board violated Louisiana law. While Plaintiff asserts
that the “Defendants” violated “Louisiana Bulletin 1508 special education
policies and procedures and IDEA,” Plaintiff does not provide any further
information regarding this allegation. The Court notes that Louisiana Bulletin
1508 is a reference to the “Pupil Appraisal Handbook” set forth in Title 28 of
the Louisiana Administrative Code, and that Plaintiff fails to specify what
provision(s) St. James Parish School Board allegedly violated. Additionally,
Plaintiff has failed to allege any reprisal by St. James Parish School Board for
refusing to participate in the alleged illegal activity, other than a general
allegation that “the illegal activity, harassment, and intimidation got worse for
Plaintiff.”196 The Court finds these conclusory allegations insufficient to state
a plausible claim against St. James Parish School Board for violating
Id.
Id.
196 Id.
194
195
Louisiana’s Whistleblower statute, La. R.S. 23:967. Count 7 is, therefore,
dismissed as to St. James Parish School Board.
C. Leave to Amend
In her Opposition brief, Plaintiff asserts that the Motions to Dismiss should be
denied or, “if it is granted Plaintiff should be allowed to amend complaint [sic]
consistent with courts [sic] ruling.”197 While the Court will “freely give leave [to
amend] when justice so requires,”198 leave to amend “is by no means automatic.”199
In exercising its discretion, this Court may consider such factors as “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 the amendment.”200
However, “i[t] is within the district court’s discretion to deny a motion to amend if it
is futile.”201 The Fifth Circuit has stated that while it has not specifically defined
“futility” in this context, “we join our sister circuits that have interpreted it to mean
that the amended complaint would fail to state a claim upon which relief could be
granted.”202
The Court has already determined that amendment would be futile with
respect to Counts 1, 2, 3 and 7 as to the individual defendants, and that those claims
must be dismissed with prejudice. As to the remaining claims against the individual
R. Doc. 17 at p. 5.
Fed. R. Civ. P. 15(a).
199 Halbert v. City of Sherman, Tex., 33 F.3d 526, 529 (5th Cir. 1994) (citation omitted).
200 Nolan v. M/V SANTE FE, 25 F.3d 1043 (5th Cir. 1994) (citing Gregory v. Mitchell, 635 F.2d 199,
203 (5th Cir. 1981)).
201 Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000).
202 Id.
197
198
defendants and all of the claims against St. James Parish School Board, the Court
finds that there is no indication of bad faith or dilatory motive on Plaintiff’s part. The
Court further finds that this is not a situation in which Plaintiff has repeatedly failed
to cure deficiencies in her Complaint through amendments previously allowed.
Plaintiff has never moved to amend her Complaint. The Court, however, questions
the futility of any amendment in this case. For example, Plaintiff is silent as to what
additional facts she could or would plead to assert a plausible claim under 42 U.S.C.
§ 1983 or to assert a plausible claim for defamation or intentional infliction of
emotional distress. Plaintiff is also silent as to what additional facts she could allege
to assert plausible claims against St. James Parish School Board.
The Court further notes that Plaintiff has been on notice of the basis for
Defendants’ Motions to Dismiss since July 15, 2020, when the Motions were filed, and
has failed to move to amend her Complaint. The Court recognizes, however, that on
January 11, 2021, Plaintiff filed a Motion to Modify Scheduling Order, asking the
Court to extend the deadline for filing amended pleadings by 30 days from the Court’s
ruling on the instant Motions to Dismiss.203 The Court denied the Motion to Modify
as premature, stating that, “The Court will determine whether to grant Plaintiff an
opportunity to amend her Complaint when the Court addresses the two Motions to
Dismiss.”204 As such, the Court finds that granting Plaintiff leave to amend her
Complaint is warranted in this case. Exercising the discretion afforded under Fed.
R. Civ. P. 15 and the pertinent jurisprudence, Plaintiff shall have seven (7) days from
203
204
R. Doc. 50.
R. Doc. 58.
the date of this Order to amend her Complaint with respect to her allegations
pertaining to St. James Parish School Board and with respect to her allegations in
Counts 4, 5, and 6 as to the individual defendants.
D. Defendants’ Request for Attorney’s Fees
In both Motions to Dismiss, Defendants request an award of attorney’s fees.205
The argument in support of the request for attorney’s fees is identical in the two
Motions – Defendants assert that 42 U.S.C. § 1988 allows a prevailing defendant to
recover attorney’s fees upon a finding that a plaintiff’s Title VII or § 1983 claim was
frivolous unreasonable or without foundation.206 Defendants also assert that La. R.S.
23:967(D) and La. R.S. 23:303(B) allow attorney’s fees to a prevailing defendant
where frivolous claims are brought.207 Beyond citing the foregoing legal authority,
Defendants make no effort to explain why attorney’s fees should be awarded under
the facts of this case, seemingly implying that most of Plaintiff’s claims are frivolous.
As set forth in this Order, the Court disagrees. As such, the Court denies Defendants’
request for attorney’s fees.
IV.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Paul McDonald’s Rule
12(b)(1) and Rule 12(b)(6) Motion to Dismiss208 is DENIED in part and GRANTED
in part. The Motion is DENIED to the extent that McDonald seeks dismissal under
205
R. Doc. 14-1 at p. 52; R. Doc. 16-1 at p. 53.
R. Doc. 14-1 at p. 52 (citing Fox v. Vice, 563 U.S. 826, 131 S.Ct. 2005, 180 L.Ed.2d 45 (2011)); R. Doc. 16-1 at p. 53
(citing Fox, supra).
207
R. Doc. 14-1 at p. 52; R. Doc. 16-1 at p. 53.
208 R. Doc. 14.
206
Fed. R. Civ. P. 12(b)(1), but the Motion is GRANTED to the extent that McDonald
seeks dismissal under Rule 12(b)(6). Plaintiffs’ claims asserted against McDonald in
Counts 1, 2, 3 and 7 of the Complaint are DISMISSED WITH PREJUDICE, while
Plaintiff’s claims against McDonald asserted in Counts 4, 5 and 6 are DISMISSED
WITHOUT PREJUDICE. Plaintiff shall have seven (7) days from the date of this
Order to file an amended complaint addressing the deficiencies in Counts 4, 5 and 6
with respect to McDonald.
IT IS FURTHER ORDERED that the Rule 12(b)(1) and Rule 12(b)(6) Motion
to Dismiss, filed by St. James Parish School Board, P. Edward Cancienne, Jr., Kelly
Cook, Anne Detillier, Vondra Steib, Sabra Robichaux, Hollie Folse, and Becky
Louque,209 is also DENIED in part and GRANTED in part.
The Motion is
DENIED to the extent that these defendants seek dismissal under Fed. R. Civ. P.
12(b)(1), but the Motion is GRANTED to the extent that these defendants seek
dismissal under Rule 12(b)(6). Plaintiffs’ claims asserted against Cancienne, Cook,
Detillier, Steib, Robichaux, Folse and Louque in Counts 1, 2, 3 and 7 of the Complaint
are DISMISSED WITH PREJUDICE, while Plaintiff’s claims against Cancienne,
Cook, Detillier, Steib, Robichaux, Folse and Louque asserted in Counts 4, 5 and 6 are
DISMISSED WITHOUT PREJUDICE.
Plaintiff’s claims asserted against St.
James Parish School Board in Counts 1, 2, 3, 4, 5, 6 and 7 are likewise DISMISSED
WITHOUT PREJUDICE. Plaintiff shall have seven (7) days from the date of this
Order to file an amended complaint addressing the deficiencies in Counts 4, 5 and 6
209
R. Doc. 16.
with respect to Cancienne, Cook, Detillier, Steib, Robichaux, Folse and Louque, and
to address the deficiencies in Counts 1-7 with respect to St. James Parish School
Board.
IT IS FURTHER ORDERED that Defendants’ request for attorney’s fees is
DENIED.
New Orleans, Louisiana, March 31, 2021.
______________________________
WENDY B. VITTER
United States District Judge
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