Mitchell vs American Eagle Airlines, Inc.

Filing 25

RULING granting 8 Motion for Partial Dismissal Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is hereby GRANTED. Bashega A. Mitchell's wrongful demotion claim and Pre- Bankruptcy Petition discrimination and retaliation claims are hereby dismissed with prejudice. Signed by Judge Shelly D. Dick on 8/5/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BASHEGA A. MITCHELL
CIVIL ACTION
VS.
15-757-SDD-RLB
AMERICAN EAGLE AIRLINES, INC.
RULING
Before the Court is Defendant’s Motion for Partial Dismissal Pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.1 Plaintiff has filed an Opposition2 to
which the Defendant filed a Reply.3

For the following reasons, the Court grants

Defendant’s motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Bashega A. Mitchell (“Plaintiff” or “Mitchell”), an African American woman, filed this

employment discrimination lawsuit against her former employer of approximately 18
years, American Eagle Airlines, Inc. (“American Eagle”). Mitchell claims that, on March
21, 2011, she was improperly demoted from her position as Lead Agent by her supervisor,
Bonnie Sutton (“Sutton”), for allowing a co-worker to clock-in one minute late.4 On this
same day, Mitchell was discharged for allegedly falsifying records related to the incident.5
It is Mitchell’s position, however, that she was actually terminated because of her race,

1
Rec. Doc. 8. In its Reply brief American Eagle Airlines, Inc., converted its Rule 12(b)(6) Motion to Dismiss
to a Motion for Partial Dismissal. Rec. Doc. 21, p. 1.
2
Rec. Doc. 18.
3
Rec. Doc. 21.
4
Rec. Doc. 1, p. 3, ¶9 and ¶15; Rec. Doc. 3, p. 3, ¶9 and ¶15.
5
Rec. Doc. 1, p. 3, ¶10; Rec. Doc. 3, p.3, ¶10.

33394

religion, disability, and as a form of retaliation.6 According to Mitchell, Sutton continuously
criticized her and treated her less favorably than other Caucasian employees by giving
them more preferable work assignments and offering them assistance when requested.7
After receiving treatment for mucoepidermoid carcinoma cancer and being released to
work by her physician, Mitchell claims that Sutton refused to allow her to return to work
until she was “100% released”; Mitchell contends that such a requirement was not
imposed on her Caucasian co-workers.8 Mitchell further asserts that she reported these
incidents to individuals within American Eagle’s Human Resource Department, including
the Regional Director, but no action was taken.9
Following her termination from American Eagle, Mitchell filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on June
23, 2011, claiming that her demotion at American Eagle had been a form of race
discrimination in violation of Title VII and La. R.S. 23:301 et seq.10 On July 2, 2012,
Mitchell filed an Amended Charge wherein she broadened her claim to include
discrimination based upon sex, religion, and retaliation, and the time span within which
the discriminatory acts allegedly occurred.11 In her Amended Charge, she also claimed
to have been subjected to unfair working conditions and a hostile work environment.12
After an unsuccessful conciliation, the EEOC issued Mitchell a Right to Sue Letter on

6

Rec. Doc. 1, p. 3, ¶11; pp. 5-6, ¶23; p. 6, ¶25; Rec. Doc. 3, ¶11; pp. 5-6, ¶23; p. 6, ¶25.
Rec. Doc. 1, p. 4, ¶¶16-17; Rec. Doc. 3, p. 4, ¶¶16-17.
8
Rec. Doc. 1, p. 5, ¶20; Rec. Doc. 3, p. 5, ¶20.
9
Rec. Doc. 1, p. 5, ¶19; Rec. Doc. 3, p. 5, ¶19.
10
Rec. Doc. 1, pp. 6-7, ¶28; Rec. Doc. 3, pp. 6-7, ¶28; Rec. Doc. 21, p. 9.
11
Rec. Doc. 21, p. 10. In her original Charge of Discrimination, Mitchell indicated that the dates of
discrimination occurred on March 21, 2011. However, in her Amended Charge, Mitchell changed the dates
of discrimination to June 14, 2010 through March 4, 2011. Rec Doc. 21, pp. 9-10.
12
Rec. Doc. 21, p. 10.
7

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April 20, 2015.13 Approximately seven months later, on November 10, 2015, Mitchell filed
her Original Complaint against American Eagle asserting claims arising under Title VII of
the Civil Rights Act of 1964, as amended by 42 U.S.C. §2000 et seq., and the Louisiana
Constitution.14 Mitchell subsequently filed an Amended Complaint to correctly name and
identify American Eagle as the sole Defendant.15
In response to her Complaints, American Eagle seeks partial dismissal of Mitchell’s
claims because they are barred by the discharge injunction in American Eagle’s
Bankruptcy plan. Specifically, American Eagle seeks dismissal of Plaintiff’s claims based
on conduct that occurred prior to the Bankruptcy Petition Date, or November 29, 2011.
Mitchell opposes the motion on two grounds. First, she argues that her claim did not
actually occur until August 20, 2015, when the EEOC issued its Right to Sue Letter.
Second, Mitchell asserts that she did not receive reasonable notice of American Eagle’s
confirmation hearing.
II.

LAW AND ANALYSIS
A. Rule 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”16 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”17 “To

13

Rec. Doc. 1-1.
Rec. Doc. 1, p. 1, ¶1; p. 5, ¶21; Rec. Doc. 3, p. 1, ¶1; p. 5, ¶21.
15
Rec. Doc. 3. In the caption of and throughout her Complaint, Mitchell asserted her claims against
“American Eagle Airlines, Inc., et al.” Rec. Doc. 1.
16
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
17
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)(quoting Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
14

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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.’”18 In Bell Atlantic Corp. v. Twombly, the
United States Supreme Court set forth the basic criteria necessary for a complaint to
survive a Rule 12(b)(6) motion to dismiss.19 “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.”20 A complaint is also insufficient if it merely “tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’”21 However, “[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.”22 In order to satisfy the plausibility
standard, the plaintiff must show “more than a sheer possibility that a defendant has acted
unlawfully.”23 “Furthermore, while the court must accept well-pleaded facts as true, it will
not ‘strain to find inferences favorable to the plaintiff.’”24 On a motion to dismiss, courts
“are not bound to accept as true a legal conclusion couched as a factual allegation.”25
B. Bankruptcy Documents
In support of its motion, American Eagle has attached various documents related
to its Chapter 11 Bankruptcy Proceeding in the United States Bankruptcy Court for the

18

In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (5th Cir. 2007)(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
19
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (hereinafter Twombly).
20
Twombly, 550 U.S. at 555 (internal citations and brackets omitted).
21
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted)(hereinafter “Iqbal”)(quoting
Twombly, 550 U.S. at 557).
22
Id. (citing Twombly, 550 U.S. at 556).
23
Id.
24
Taha v. William Marsh Rice Univ., No. H-11-2060, 2012 WL 1576099 at *2 (S.D. Tex. May 3, 2012)
(quoting Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
25
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

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Southern District of New York, In re AMR et al., Case No. 11-15463.26 Defendant asks
the Court to take judicial notice of these bankruptcy documents in ruling on its motion.27
The Fifth Circuit has held that taking judicial notice of “public records directly relevant to
the issue at hand” is proper in assessing a 12(b)(6) motion and does not transform the
motion into one for summary judgment.28

The Court finds that American Eagle’s

bankruptcy filings in Case No. 11-15463 are, in fact, directly related to the viability of
Plaintiff’s pre-Bankruptcy Petition (“pre-Petition”) claims. Hence, the Court shall take
judicial notice of the bankruptcy filings.
C. Pre-Petition Claims
American Eagle urges the Court to dismiss Mitchell’s wrongful demotion claim and
any discrimination claims based upon pre-Petition conduct because they are barred by
the discharge injunction in American Eagle’s bankruptcy Plan. In response, Mitchell
initially argues that her claims did not arise until the EEOC issued its Right to Sue Letter
in November of 2015; therefore, her pre-Petition claims are not barred. The Court
disagrees.
As previously mentioned, on November 29, 2011, American Eagle, its former
parent company, AMR Corporation, and other related Debtors (collectively “Debtors”) filed

26
In addition to American Eagle, its former parent company, AMR Corporation, and other related debtors
filed voluntary petitions for Chapter 11 relief, and the cases were consolidated and docketed as Case No.
11-15463.
27
American Eagle has noted that these documents are “publicly available and free of charge at
www.amrcaseinfo.com.” Rec. Doc. 8-1, p. 2, n. 2.
28
Funk v. Stryker Corp., 631 F.3d 777, 782-83 (5th Cir. 2011)(“court took appropriate judicial notice of
publicly-available documents and transcripts produced by the FDA, which were matters of public record
directly relevant to the issue at hand”). See also, In re C.F. Bean L.L.C., 2015 WL 420211, *2 (S.D. Miss.
Feb. 2, 2015)(in finding that consideration of bankruptcy documents in support of motion to dismiss was
proper, the district court explained that “[t]he Fifth Circuit Court of Appeals has recently reaffirmed that
district courts may consider public documents obtained from bankruptcy proceedings when evaluating a
motion to dismiss pursuant to Rule 12(b)(6)” (citing Van Duzer v. U.S. Bank Nat. Ass’n, 582 F.App’x 279,
283-84 (5th Cir. 2014)).

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voluntary petitions for Chapter 11 relief in the United States Bankruptcy Court for the
Southern District of New York.29 The cases were consolidated into one action, Case No.
11-15463.30 On May 3, 2012, the Bankruptcy Court issued an order (“Bar Date Order”)
establishing July 16, 2012 at 5:00pm (EST) as the deadline for the submission of any
non-governmental claims.31 Mitchell did not file a claim.
On October 22, 2013, the Bankruptcy Court entered an order (“Confirmation
Order”) confirming the Debtors’ Chapter 11 reorganization plan, which became effective
on December 9, 2013. Pursuant to the Confirmation Order:
[A]ll Persons or Entities who have held, hold, or may hold Claims … and all
other parties in interest ….shall be permanently enjoined, from and after the
Effective Date, from (i) commencing or continuing in any manner any action
or other proceeding of any kind with respect to any such Claim against
Debtors or the Reorganized Debtors other than actions to enforce the Plan
or with respect to the allowance of Claims and Equity Interests, (ii) the
enforcement, attachment, collection, or recovery by any manner or means
of any judgment, award, decree, or order against the Debtors or the
Reorganized Debtors or property of any of the Debtors or the Reorganized
Debtors, (iii) creating, perfecting, or enforcing any encumbrance of any kind
against the Debtors or the Reorganized Debtors, or (iv) asserting any right
of setoff, subrogation, or recoupment of any kind against any obligation due
from the Debtors or the Reorganized Debtors or against property or
interests in property of the Debtors or the Reorganized Debtors, with
respect to any such Claim or Equity Interest. Such injunction shall extend
to any successors of the Debtors and the Reorganized Debtors and their
respective property and interests in property.32
In this case, the discharge of indebtedness occurred under Chapter 11 of the Bankruptcy
Code.

29

Supra note 26. Rec. Doc. 1, Case No. 11-15469 (Voluntary Petition filed by American Eagle Airlines,
Inc.)(available at www.amrcaseinfo.com/related_15469.php); Rec. Doc. 1, Case No. 11-15463 (Voluntary
Petition
filed
by
AMR
Corporation)(available
at
www.amrcaseinfo.com/maincase.php?start_no=1&end_no=200).
30
Rec. Doc. 46, Order signed on November 29, 2011 Directing Joint Administration of Chapter 11 Cases
of
American
Airlines
(designating
lead
case
as
11-15463)(available
at
http://www.amrcaseinfo.com/maincase.php?start_no=1&end_no=200).
31
Rec. Doc. 8-3.
32
Rec. Doc. 8-6, pp. 66-67, ¶56(a).

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A Chapter 11 “discharge is broader than that obtained in a Chapter 7 bankruptcy;
while a Chapter 7 discharge deals only with debts incurred prior to the filing of the petition,
§ 1141(d) discharges the debtor from any debt (with certain exceptions) that arose before
the date of confirmation.”33 The Fifth Circuit, relying on Supreme Court jurisprudence,
has explained that “the terms ‘debt’ and ‘claim’ are coextensive”34 and “there is no
distinction between ‘debt’ and ‘claim’ for purposes of the Bankruptcy Code.”35 Courts
have found that “[a] claim arises, for the purposes of discharge in bankruptcy cases, at
the time of the events giving rise to the claim, not at the time the plaintiff is first able to file
suit on the claim.”36

Courts must refer to the relevant non-bankruptcy law when

determining when a claim arises.37 In this case, the relevant law would be Title VII and
Louisiana law.
Mitchell argues that her claim did not arise until she received her Right to Sue
Letter from the EEOC. The Court concludes otherwise. Within the Fifth Circuit, a
plaintiff’s Title VII claim arises when he or she “knows or reasonably should know that the
discriminatory act has occurred.”38 Here, it is apparent from the record that Mitchell knew
or reasonably believed that she had been discriminated against when she filed her
original EEOC Charge on June 23, 2011. In her original Charge, Mitchell specifically

33

Matter of Christopher, 28 F.3d 512, 515 (5th Cir. 1994).
Matter of Southmark Corp., 88 F.3d 311, 317 (5th Cir. 1996)(citing Pennsylvania Dep’t. of Public Welfare
v. Davenport, 495 U.S. 552, 558, 110 S.Ct. 2126, 2130, 109 L.Ed.2d 588 (1990)).
35
Id. (citing In re Lindsey, Stephenson & Lindsey, 995 F.2d 626, 628 (5th Cir. 1993), cert denied, 510 U.S.
1111, 114 S.Ct. 1053, 127 L.Ed.2d 374 (1994)).
36
Cost v. Super Media, 482 B.R. 857, 862 (S.D.N.Y. 2012)(citing Carter v. Safety-Kleen Corp., 2007 WL
1180581, at *4-5 (S.D.N.Y. Mar. 14, 2007)), see also, In re Ybarra, 424 F.3d 1018, 1022-23 (9th Cir.
2007)(stating, “A claim arises for the purposes of discharge in bankruptcy, at the time of the events giving
rise to the claim”)(citations omitted)).
37
Id. (quoting Holmes v. Air Line Pilots Ass’n, Int’l, 745 F.Supp.2d 176, 196 (E.D.N.Y. 2010)).
38
Caswell v. Federal Express Corp., 2002 WL 31927116, at *8 (N.D. Tex. Dec. 31, 2002)(citing Merrill v.
Southern Methodist Univ., 806 F.2d 600, 605 (5th Cir. 1986)).
34

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claimed that she had been demoted by Sutton because of her race in violation of La. R.S.
23:301 et seq. and Title VII.39 In her Amended Charge, Mitchell reiterated her demotion
claim and further asserted that, since the filing of her original charge, she had been
“subject[ed] to unfair work conditions, including but not limited to having [her] time off
requests refused or delayed by [her] supervisor, Bonnie Sutton, and being subject[ed] to
a hostile work environment.”40 Based upon the information Mitchell included in both of
her charges with the EEOC, it is evident that Mitchell had knowledge of allegedly
discriminatory actions taken against her before American Eagle filed its Bankruptcy
Petition.
Mitchell’s argument that the lack of a Right to Sue Letter left her pre-Petition
discrimination claims unmatured or contingent also has no merit.

Courts faced with

similar challenges involving the discharge of employment discrimination claims have
concluded that the exhaustion of administrative remedies, including the receipt of a right
to sue letter, “is a procedural requirement and does not give rise to the claim.”41 Further,
Section 101(5)(A) of the Bankruptcy Code defines “claim” to include a “right to payment,
whether or not such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or

39

Rec. Doc. 21, p. 9.
Rec. Doc. 21, p. 10.
41
Rafter v. Great Atlantic & Pacific Tea Co., Inc., 2013 WL 4400496, at *9 (D.Md. Aug. 15, 2013)(quoting
Holcombe v. U.S. Airways, Inc., 369 F.App’x 424, 428 (4th Cir. 2010)(per curium); accord McSherry v.
Trans World Airlines, Inc., 81 F.3d 739, 741 (8th Cir. 1996)(“Under Title VII the right to sue letter is merely
a jurisdictional prerequisite, and does not create a claim.”). See also, O’Loghlin v. County of Orange, 229
F.3d 871, 874 (9th Cir. 2000)(plaintiff’s ADA claim based on pre-discharge violations deemed a claim per
11 U.S.C. §101(5) even though plaintiff did not receive right to sue letter until debtor’s debts had been
discharged); Cost v. Super Media, 482 B.R. 857, 861-62 (S.D.N.Y. 2012)(when EEOC right to sue letter is
issued is irrelevant to whether section 1141(d) discharges an employment discrimination claim; rather, the
determination “hinges on when the alleged misconduct occurred” (quoting Carter, 2007 WL 1180581, at *4
(citing O’Loghlin, 229 F.3d 871, 874-75 (9th Cir. 2000))).
40

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unsecured.”42 As one court noted, the Bankruptcy Code’s definition of claim “is broad
enough to include an obligation for which a civil action would be premature due to
statutory prerequisites such as the right to sue letter.”43 Based on the foregoing, the Court
finds that Mitchell’s argument that her claims did not arise until she received her Right to
Sue letter must fail.
As an alternative argument, Mitchell contends that American Eagle did not give
her constitutionally sufficient notice of its Bankruptcy Proceeding and Bar Date Notice.
The Court finds that this argument likewise fails. The Fifth Circuit has explained that “[a]
creditor’s claim can be barred for untimeliness only upon a showing that it received
reasonable notice…Due process requires notice that is reasonably calculated to reach all
interested parties, reasonably conveys all of the required information, and permits a
reasonable amount of time for response.”44 The Fifth Circuit has also noted how the
bankruptcy rules “imply that correctly mailed notice creates a presumption that proper
notice was given.”45 Therefore, the “question becomes whether the sender properly
mailed the notice and not whether the intended recipient received it.”46
Included in the Bankruptcy Court documents in Case No. 11-15463 are two
separate Affidavits of Service provided by Isabel I. Baumgarten, a Senior Director with
GCG, Inc., the Debtors’ claims and notice agent.47 In the first Affidavit, Baumgarten
attested to the fact that, on December 29, 2011, “a true and correct copy of the Notice of

42

11 U.S.C. §101(5)(A).
Kresmery v. Service America Corp., 227 B.R. 10, *13 (D.Conn. 1998).
44
In re Eagle Bus Mfg., Inc., 62 F.3d 730, 735 (5th Cir. 1995)(citing Oppenheim, Appel, Dixon & Co. v.
Bullock (in re Robintech, Inc.), 863 F.2d 393, 396 (5th Cir. 1989), cert. denied, 493 U.S. 811, 110 S.Ct. 55,
107 L.Ed.2d 24 (1989)).
45
Id. (quoting In re Schepps Food Stores, Inc., 152 B.R. 136, 139 (Bankr. S.D. Tex. 1993)).
46
Id. (citing In re Schepps, 152 B.R. at 139; Moody v. Bucknum (In re Bucknum), 951 F.2d 204, 207 (9th
Cir. 1991)).
47
Rec. Doc. 8-2; Rec. Doc. 8-4.
43

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Chapter 11 Bankruptcy Cases, Meeting of Creditors, and Deadlines” was “served by first
class mail, postage prepaid, on the parties identified on Exhibit C annexed hereto.”48
Included on Exhibit C was Plaintiff’s name, Bashega D. Mitchell, and address of 5995
Grand Dr. Baton Rouge, LA 70812-2020.49 In her second Affidavit, dated May 23, 2012,
Baumgarten attested to the fact that, on May 18, 2012, a Bar Date Notice and Proof of
Claim Form, “customized with name and address information”, were “served by first class
mail, postage prepaid” on the parties identified in Exhibit B.50 Plaintiff’s name and Grand
Drive address were included in Exhibit B.51 American Eagle correctly points out that these
bankruptcy documents were mailed to Plaintiff between the filing of her original and
amended EEOC Charges. Importantly, the address Plaintiff provided on both of her
charges was the same address that American Eagle mailed the bankruptcy information:
5995 Grand Drive, Baton Rouge, LA 70812.52
“Mailing a notice by First Class U.S. Mail to the last known address of a creditor
satisfies due process because it is ‘reasonably calculated’ to inform the creditor of the bar
date for filing proofs of claim.”53 Aside from mere argument and speculation,54 Plaintiff

48

Rec. Doc. 8-2, p. 2. (emphasis original).
Rec. Doc. 8-2, p. 3. (Exhibit C).
50
Rec. Doc. 8-4, pp. 1-2.
51
Rec. Doc. 8-4, p. 20. (Exhibit B included “Bashega D. Mitchell, 5995 Grand Dr. Baton Rouge LA 708122020”).
52
The EEOC also sent Plaintiff her Right to Sue Letter at the 5995 Grand Drive address. Rec. Doc. 1-1.
53
In re Eagle Bus. Mfg., Inc., 62 F.3d at 736 (citing Mackie v. Production Oil Co., 100 B.R. 826, 828 (N.D.
Tex. 1988); In re Solvation, Inc., 48 B.R. 670, 673 (Bankr.D.Mass. 1985)).
54
Mitchell attached her Affidavit to her Opposition wherein she stated that “she was never sent a copy of
Proof of Claim by American Eagle Airlines and that the address allegedly used by American Eagle [A]irlines
was not correct.” Rec. Doc. 18-1. American Eagle is correct in its argument that Mitchell could not have
personal knowledge of whether American Eagle sent her a copy of the Proof of Claim form. 2A C.J.S.
Affidavits § 46 (“It is an affiant’s personal knowledge, and not his or her beliefs, opinions, rumors, or
speculation, that are the proper subject of an affidavit. An affidavit which does not positively and
unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant’s personal
knowledge is legally insufficient.”) In her Opposition, Mitchell also offers the speculative argument that “she
believes that American Eagle may have executed a written waiver of discharge with the EEOC on her
behalf.” Rec. Doc. 18, p. 5. Mitchell never made such an allegation in her Complaint. Further, Mitchell’s
arguments raised in her Opposition and Affidavit attestations in response to American Eagle’s motion to
49

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has offered nothing to rebut the presumption that the bankruptcy notices were properly
mailed to her. Accordingly, Plaintiff’s wrongful demotion claim and discrimination and
retaliation claims based on acts that occurred prior to November 29, 2011 shall be
dismissed because they are barred by the discharge injunction in American Eagle’s
Bankruptcy Plan.
III.

CONCLUSION
For the foregoing reasons, the Defendant American Eagle Airlines, Inc.’s Motion

For Partial Dismissal Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure55
is hereby GRANTED.

Bashega A. Mitchell’s wrongful demotion claim and Pre-

Bankruptcy Petition discrimination and retaliation claims are hereby dismissed with
prejudice.
Signed in Baton Rouge, Louisiana on August 5, 2016.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

dismiss cannot be relied upon to cure a defective complaint. Smallwood v. New Orleans City, 2016 WL
54934, *5 (E.D.La. Jan. 5, 2016)(“Memoranda and supporting affidavits in opposition to a motion to dismiss
cannot be used to cure a defective complaint” (citing In re Enron Corp. Securities, Derivative & “ERISA”
Litigation, 2003 WL 23316646, *5 (S.D.Tex. Mar. 27, 2003)). Moreover, it would be futile to allow Plaintiff
to amend her Complaints to rebut the presumption that notice was properly sent in light of the bankruptcy
documents. (Varela v. Gonzales, 773 F.3d 704 (5th Cir. 2014)(an amendment would be futile “if the
complaint as amended would be subject to dismissal”)(quoting Ackerson v. Bean Dredging LLC, 589 F.3d
196, 208 (5th Cir. 2009))).
55
Rec. Doc. 8.

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