Hynes v. Lakefront Management Authority et al

Filing 21

ORDER AND REASONS granting 10 Motion to Dismiss for Failure to State a Claim; Hynes claims against Juneau are hereby dismissed with prejudice. Signed by Magistrate Judge Janis van Meerveld on 9/19/2022. (caa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALBERT J. HYNES

* CIVIL ACTION
*
VERSUS
* NO. 22-2001
*
LAKEFRONT MANAGEMENT
*
AUTHORITY, ET AL.
* MAGISTRATE JUDGE
* JANIS VAN MEERVELD
*
*********************************** *
ORDER AND REASONS
Before the Court is defendant Donald P. Juneau’s Motion to Dismiss. (Rec. Doc. 10).
Juneau—an individual—does not qualify as an employer under the employment discrimination
laws or the whistleblower statute at issue here and, therefore, to the extent plaintiff seeks to raise
such claims against Juneau they must be dismissed. Plaintiff appears to concede that his negligence
claim is barred by Louisiana’s worker’s compensation law. His claim for intentional infliction of
emotional distress must be dismissed because the facts alleged do not rise to the threshold of
extreme and outrageous conduct. Finally, plaintiff did not allege a claim under 42 U.S.C. § 1983
in his complaint, but even if the court construes his opposition to the motion to dismiss as a request
for leave to amend, that request must be denied as futile because plaintiff received constitutionally
adequate process. Accordingly, the Motion to Dismiss is GRANTED; plaintiff’s claims against
Juneau are hereby dismissed with prejudice.
Background
Plaintiff Albert J. Hynes seeks damages for his allegedly wrongful termination from
employment as a civil service Southeast Flood Protection Orleans Levee District police officer on
or about March 10, 2021. The termination followed an investigation by Captain Donald P. Juneau
of the Southeast Flood Protection Orleans Levee District into certain allegations of violations of
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Southeast Flood Protection policies. These included using threatening, abusive, foul, offensive, or
language insulting to the public or a group of individuals; committing acts of sexual or other types
of prohibited harassment; being discourteous while carrying out his duties; and negligence in
carrying out his duties. Hynes was given written notice of these allegations and of the investigation
on December 10, 2020.
According to Hynes, the investigation followed an August 10, 2020, written complaint by
Bruce L.A. Martin, Airport Director for the Lakefront Airport where Hynes was assigned, to a
member of the Lakefront Management Authority. Martin alleged various concerns about Hynes,
including that he was biased, harassing, and neglectful towards Flightline First’s general manager
in favor of Signature Aviation’s general manager; that he failed to take a driver’s test for operating
a vehicle on the airport’s non-public taxiways and runways; that he did not work evening hours;
that he left his vehicle’s rear door open while there may have been an AR-15 in the trunk; that he
harassed two minority males who were at the airport for an interview; that he failed to conduct
patrols unless he thought it would get him a headline; and that he was a liability to Lakefront
Management while at the airport and was a waste of the airport’s money.
Among other things, Hynes complains that Juneau deliberately did not interview certain
relevant witnesses. He alleges that Juneau opened his interviews of other witnesses by telling them
that he believed the facts supporting their complaint and then phrased his questions to solicit
answers supporting the complaint and the pre-determined conclusion that Hynes should be
terminated. Hynes alleges that in violation of Southeast Flood Protection policies, Juneau
intentionally failed to keep Superintendent Kerry Najiola updated on the investigation and
presented his completed internal affairs report for review and approval by Najiola before
forwarding it to Chief Administrative Officer Derek Boese. Hynes claims that Juneau negligently

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breached his duties and that he targeted Hynes for termination without cause. He alleges that
Juneau (race and age unknown) held Hynes to a higher standard of performance than females,
younger males, and minorities because Hynes is a senior white male.
On February 22, 2021, Boese provided Hynes with written notice that a list of policy
violations had been sustained. Hynes retained an attorney for the civil service hearing and the
attorney responded to the allegations. On March 10, 2021, Boese notified Hynes that he was being
terminated.
Following his termination, Hynes appealed to the Louisiana State Civil Service
Commission. On May 21, 2021, Civil Service Referee Brent Frederick issued a Notice of Possible
Defects in Appeal, requesting a memorandum opposing why a judgment should not be entered or
certain allegations should not be struck from the disciplinary notice. Hynes and “defendants”—by
which he presumably means the Southeast Flood Protection Authority—reached a settlement
agreement wherein Hynes was deemed to have resigned effective December 31, 2021. He received
back pay and emoluments due between March 10, 2021, and December 31, 2021.
In this lawsuit, Hynes has named as defendants the Lakefront Management Authority, the
Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East, Juneau,
Martin, and unidentified insurance companies. Hynes has asserted claims against the defendants
generally for racial, gender, and age discrimination in violation of state and federal law. He has
asserted that he is a whistleblower. He alleges that the complaints against him—presumably the
one written by Martin—were false and libelous.
The United States Equal Employment Opportunity Commission issued a notice of right to
sue on March 22, 2022. Hynes filed this action in state court on May 16, 2022. Defendants removed

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to this court on June 30, 2022. The parties consented to proceed before the undersigned magistrate
judge.
Presently before the Court is Juneau’s motion to dismiss. He argues that neither the
employment discrimination nor the whistleblower statutes provide a cause of action against
individual employees. He further argues that Juneau’s negligence claim is barred by worker’s
compensation exclusivity.
In opposition, Hynes fails to address the employment discrimination and whistleblower
arguments. He argues that his allegations against Juneau rise to the level of an intentional tort that
is not subject to worker’s compensation exclusivity. He also argues that his termination deprived
him of due process of law and that he has a remedy under 42 U.S.C. §1983.
In reply, Juneau submits that in failing to mention any whistleblower, employment
discrimination, or negligence claim in opposition to the motion to dismiss, Hynes has waived any
opposition to dismissing those claims. He argues that these claims should therefore be dismissed.
Juneau further submits that Hynes appears to assert new claims for intentional infliction of
emotional distress and deprivation of federal due process under §1983 that were not plead in his
petition. Juneau argues that this court can interpret Hynes’ opposition as a request for leave to
amend. He argues that the court should do so and should deny the request as futile because he
cannot state a claim for either cause of action.

Law and Analysis
1. Standard on a Motion to Dismiss
“[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement
to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and

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money by the parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007) (quotation marks and ellipsis omitted). Accordingly, Rule 12(b)(6) allows a defendant to
move for expeditious dismissal when a plaintiff fails to state a claim upon which relief can be
granted. In ruling on a 12(b)(6) motion, “[t]he court accepts all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litigation, 495 F.3d
191, 205 (5th Cir. 2007) (internal quotation marks omitted). Further, “[t]o survive a Rule
12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is
plausible on its face. Factual allegations must be enough to raise a right to relief above the
speculative level.” Id. (citation, footnote, and quotation marks omitted). On that point, the United
States Supreme Court has explained:
A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between possibility and plausibility of
entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted).
2. Leave to Amend the Complaint
Where a plaintiff raises new claims in opposition to a dispositive motion, courts may
construe the opposition as a motion for leave to amend the complaint to assert the new claims.
Cash v. Jefferson Assocs., Inc., 978 F.2d 217, 218 (5th Cir. 1992).1 Under Federal Rule of Civil
Procedure 15(a)(2), when the time period for amending a pleading as a matter of course has passed,
a party may amend its pleadings by consent of the parties or by leave of court. “The court should

1

Of course, the court is not compelled to do so. The Fifth Circuit has recently refused to construe a new argument
raised in opposition to summary judgment as an implied motion to amend the complaint where plaintiffs were not
proceeding pro se. Jackson v. Gautreaux, 3 F.4th 182, 189 (5th Cir. 2021)

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freely give leave when justice so requires.” Fed. R. Civ. Proc. 15(a)(2). Thus, the United States
Court of Appeals for the Fifth Circuit instructs that the “district court must possess a ‘substantial
reason’ to deny a request for leave to amend.” Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir.
2004). Nonetheless, “that generous standard is tempered by the necessary power of a district court
to manage a case.” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 177 (5th Cir. 2016)
(quoting Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003)). The court may
consider numerous factors when deciding whether to grant a motion for leave to amend, including
“undue delay, bad faith or dilatory motive on the part of the movant, repeated failures 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.” Schiller v. Physicians Res. Grp.
Inc., 342 F.3d 563, 566 (5th Cir. 2003). When considering the futility of a proposed amendment,
courts use the same standard as applies on a Rule 12(b)(6) motion to dismiss. Stripling v. Jordan
Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000).
3. Analysis
a. Employment Discrimination Claims
Hynes does not respond to Juneau’s argument that employment discrimination law does
not provide a cause of action against an individual. Moreover, it is well settled that Title VII does
not create a cause of action against a plaintiff’s co-employees. Smith v. Amedisys Inc., 298 F.3d
434, 448 (5th Cir. 2002). The same is true for claims under the ADEA—there is no basis for
individual liability. Medina v. Ramsey Steel Co., 238 F.3d 674, 686 (5th Cir. 2001). Nor does
Louisiana’s Employment Discrimination Law provide a cause of action against individual
employees. Postell v. Lane, No. CIV.A. 12-00527-BAJ, 2014 WL 4925665, at *4 (M.D. La. Sept.
30, 2014).

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Accordingly, to the extent Hynes sought to assert any employment discrimination claims
against Juneau, such claims must be dismissed.
b. Whistleblower Claims
Hynes does not respond to Juneau’s argument that Louisiana’s Whistleblower Law does
not provide a cause of action against an individual. Indeed, under Louisiana’s Whistleblower Law,
only an employer, not a co-worker, can be held liable. See Moody v. Walker, No. CV 20-2656WBV-DMD, 2021 WL 3423597, at *13 (E.D. La. Aug. 5, 2021).
Accordingly, to the extent Hynes sought to assert a whistleblower claim against Juneau,
such claim must be dismissed.
c. Negligence and Intentional Torts
Juneau argues that any negligence claim is barred by Louisiana’s Workers’ Compensation
statute. Apparently conceding this to be true, Hynes argues that he has stated a claim for an
intentional tort that is not barred by the Workers’ Compensation Statute. Juneau seems to argue
that Hynes did not plead any facts in support of an intentional tort and that, therefore, this court
should construe Hynes’ opposition as a motion for leave to amend. He further argues that
amendment would be futile because the alleged acts of Juneau do not rise to the level of severe
and outrageous conduct required to state a claim for intentional infliction of emotional distress.
Hynes did not explicitly allege a claim for intentional infliction of emotional distress. But
he did allege various intentional actions by Juneau. Whether the court construes Juneau’s present
complaint as attempting to assert a claim for intentional infliction of emotional distress or whether
the court considers his opposition memorandum a request for leave to amend to explicitly assert

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such a claim, the same Rule 12(b)(6) standard applies to determining whether he has stated a claim
or whether the proposed claim is futile. 2
The Louisiana Supreme Court instructs that:
in order to recover for intentional infliction of emotional distress, a plaintiff must
establish a plaintiff must establish (1) that the conduct of the defendant was extreme
and outrageous; (2) that the emotional distress suffered by the plaintiff was severe;
and (3) that the defendant desired to inflict severe emotional distress or knew that
severe emotional distress would be certain or substantially certain to result from his
conduct.
White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). “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.” Id. And while Louisiana
courts have recognized “a cause of action for intentional infliction of emotional distress in a
workplace setting, [Louisiana’s] jurisprudence has limited the cause of action to cases which
involve a pattern of deliberate, repeated harassment over a period of time.” Nicholas v. Allstate
Ins. Co., 1999-2522 (La. 8/31/00), 765 So. 2d 1017, 1026; see Smith, 298 F.3d at 450 (holding
that evidence of persistent verbal and physical sexual harassment did not reach the threshold of
“unendurable” so as to state a claim for intentional infliction of emotional distress).
Although Hynes refers to various “intentional” acts by Juneau, he fails to allege that Juneau
intended to cause him severe emotional distress. He has, therefore, failed to state a claim for
intentional infliction of emotional distress.3 Moreover, the alleged actions of Hynes could not
possibly amount to the type of deliberate and repeated harassment required to sustain a workplace
intentional infliction of emotional distress claim. The allegations against Juneau consist of claims
that he intentionally declined to interview certain individuals, opened interviews of other

2

Juneau filed his reply memorandum on August 24, 2022. As of the date of this order, Hynes has not sought to file a
sur-reply.
3
Moreover, Hynes has not alleged that he suffered severe emotional distress.

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individuals by stating he believed their complaints, phrased his questions to solicit answers
supporting the complaints, urged a witness to contact him directly, and stated his opinion that
Hynes’ conduct was unbecoming of an officer. He alleges that Juneau was biased and did not keep
his supervisor apprised of the status of his investigation and acted with an intent to terminate him
because of his age, race, and whistleblower status. The statement of facts that Hynes attached to
his opposition memorandum contains no additional allegations as to Juneau. The alleged actions
of Juneau are insufficient to reach the threshold of extreme and outrageous conduct necessary to
state a claim for intentional infliction of emotional distress. Hynes’ claims for negligent and/or
intentional infliction of emotional distress must be dismissed.
d. Section 1983 claim
For the first time in opposition to Juneau’s Motion to Dismiss, Hynes claims he is alleging
a due process violation by Hynes under § 1983. Nothing in Hynes’ petition suggests that he is
attempting to assert any such claim. Even if the court construes Hynes’ opposition memorandum
as a request to amend his complaint to assert a § 1983 claim, that request must be denied as futile.
Under 42 U.S.C. § 1983
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .
Violation of an individual’s constitutional right to due process can be enforced through a § 1983
claim. Zinermon v. Burch, 494 U.S. 113, 125 (1990). To establish a procedural due process claim,
plaintiff must “show that (1) she was deprived of a liberty or property interest protected by the due
process clause, and (2) that she was deprived of that interest without constitutionally adequate
process.” LaCroix v. Marshall Cty., Mississippi, 409 F. App'x 794, 803 (5th Cir. 2011).
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“In Louisiana, a permanent classified civil service employee has a protected property
interest in her job.” Wallace v. Shreve Mem'l Libr., 79 F.3d 427, 431 (5th Cir. 1996); see Hudson
v. Dep't of Pub. Safety & Corr., Louisiana State Penitentiary, 96-0499 (La. App. 1 Cir. 11/8/96),
682 So. 2d 1314, 1318. Juneau does not dispute that Hynes had a property interest in his job.
In the case of a public employee, due process requires that the employee be provided “some
kind of a hearing” prior to termination. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542,
(1985). At a minimum, the employee is entitled to “oral or written notice of the charges against
him, an explanation of the employer's evidence, and an opportunity to present his side of the story.”
Id. at 546. Where the pretermination hearing is minimal, due process “requires a full hearing after
termination” and “at a meaningful time.” Schaper v. City of Huntsville, 813 F.2d 709, 716 (5th
Cir. 1987). Indeed, courts have held that errors in the pre-termination proceeding can be remedied
by post-termination proceedings that meet due process requirements. See Glenn v. Newman, 614
F.2d 467, 472 (5th Cir. 1980).
Here, Hynes alleges that he received written notice of the alleged violations that were
subject to investigation. He then received written notice of the policy violations sustained by the
investigation. He hired an attorney who represented him at the civil service hearing and responded
to the alleged violations. Following his termination, Hynes alleges that he was able to participate
in an appeal process. That process resulted in a settlement. Based on the facts alleged in Hynes’
complaint, no reasonable fact finder could conclude that Hynes experienced a due process
violation. The process that he received was constitutionally adequate on the face of the complaint.
Any due process claim against Juneau would be futile and to the extent Hynes’ opposition
memorandum can be construed as a request for leave to amend, that request is denied.
Conclusion

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For the foregoing reasons, the court finds that the employment discrimination laws or the
whistleblower statute at issue here do not provide a cause of action against an individual co-worker,
and, therefore, to the extent Hynes seeks to raise such claims against Juneau they must be
dismissed. Hynes appears to concede that his negligence claim is barred by Louisiana’s worker’s
compensation law. His claim for intentional infliction of emotional distress must be dismissed
because the facts alleged do not rise to the threshold of extreme and outrageous conduct. Finally,
Hynes did not allege a claim under 42 U.S.C. § 1983 in his complaint, but even if the court
construes his opposition to the motion to dismiss as a request for leave to amend, that request must
be denied as futile because Hynes received constitutionally adequate process. Accordingly,
Juneau’s Motion to Dismiss (Rec. Doc. 10) is GRANTED; Hynes’ claims against Juneau are
hereby dismissed with prejudice.
New Orleans, Louisiana, this 19th day of September, 2022.

Janis van Meerveld
United States Magistrate Judge

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