Handry-Raby v. The Hospital Service District of West Feliciana Parish, Louisiana et al

Filing 28

RULING granting in part and denying in part 13 Motion to Dismiss for Failure to State a Claim. Defendants motion does not move for, nor do they argue in support of, dismissal of Plaintiffs FMLA claims. Therefore Plaintiffs FMLA claims are not subject to dismissal, and remain before the Court. Signed by Judge Shelly D. Dick on 3/22/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DEANN HANDY-RABY

CIVIL ACTION

VERSUS

16-222-SDD-RLB

THE HOSPITAL SERVICE DISTRICT OF
WEST FELICIANA PARISH, LOUISIANA
AND THE BOARD OF COMMISSIONERS
OF THE HOSPITAL SERVICE DISTRICT
OF WEST FELICIANA
RULING
This matter is before the Court on the Motion to Dismiss for Failure to State a
Claim1 filed by Defendants, The Hospital Service District of West Feliciana Parish,
Louisiana and the Board of Commissioners of the Hospital Service District of West
Feliciana (“Defendants”). Plaintiff, Deann Handy-Raby (“Plaintiff”), filed an Opposition2 to
which Defendants filed a Reply,3 and Plaintiff filed a Sur-Reply.4

For the following

reasons, the motion will be granted in part and denied in part.
I.

FACTUAL BACKGROUND5
Plaintiff, an African-American, was hired on October 3, 2007, as a licensed

practical nurse by the West Feliciana Parish Hospital (“Hospital”). Plaintiff alleges that,
during her employment with the Hospital, Caucasians allegedly less qualified than
African-American candidates were given promotions. Plaintiff also claims that she was
told by the former Chief Nursing Officer, Kathleen Ford (“Ford”), that she would be given

1

Rec. Doc. 13.
Rec. Doc. 22.
3
Rec. Doc. 23.
4
Rec. Doc. 26.
5
The Court bases the factual background on Rec. Doc. 16.
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2

Page 1 of 14

a pay raise within her first six months of employment; however, she was not given a raise
until she was employed for eight months. Plaintiff alleges that two Caucasian nurses
hired by the Hospital immediately following their graduation from nursing school were paid
at the same rate as Plaintiff although she had been working at the Hospital for five years.
Plaintiff claims that, throughout her employment with the Hospital, she was paid in a
disparate fashion, denied promotional opportunities, and harassed because she was
African-American.
Plaintiff alleges that, at all times while employed at the Hospital, she was paid less
than Caucasian employees of the Hospital although she had more qualifications and
experience than her Caucasian counterparts. Plaintiff also claims that she was subjected
to racial harassment consisting of, but not limited to: derogatory statements regarding
African-Americans; comments that African-Americans “need to know their place;” placing
Plaintiff as the head of housekeeping “because she can relate”6 as all the employees in
housekeeping are African-American; and Caucasian nurses refusing to treat AfricanAmerican patients. Plaintiff further claims that, during her employment with the Hospital,
there was no effective policy regarding harassment, discrimination, and retaliation.
On January 14, 2014, Plaintiff claims that a meeting was held with the nursing staff
department to address: staff shortages, call-ins made by members of the department, and
questions regarding how the Hospital determined qualifications for promotions. Ford
allegedly asked Plaintiff if she “felt comfortable expressing her concerns”7 to Ford; Plaintiff
claims she responded in the negative. Later on January 14, 2014, Plaintiff met with Ford

6

Id. at pp. 2-3.
Id. at p. 3.
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concerning her alleged discriminatory pay. During this meeting, Plaintiff claims that Ford
told her that she met with Human Resources Consultant Kevin Mulligan (“Mulligan”)
before each hire, and a formula was used to calculate the new employee’s incoming pay.
Plaintiff alleges that she requested to see the formula, but she never received it.
Beginning on January 15, 2014, Plaintiff claims that Ford threatened to take
disciplinary action against her and informed her that she would not approve her “Tuition
Reimbursement Request.” Plaintiff alleges that Hospital policy required Ford to approve
the request, as she was using the reimbursement to pay for school. Plaintiff claims that
she and other employees expressed concerns about staff shortages, and the Hospital
responded to these concerns by requiring all staff members to make time off requests six
months in advance. Ford sent Plaintiff an email on February 10, 2014, asking to meet
regarding a patient complaint/incident; however, Plaintiff alleges that she was not
scheduled to work, nor was she at the Hospital on the date of the alleged patient
complaint/incident.
During a two month period, five nurses were suspended, and nine or ten nurses
either resigned or were allegedly fired by the Hospital. In response, the Hospital hired
agency nurses, and Plaintiff alleges that the agency nurses worked with “little or no
orientation to the facility,” no access to computer charting, and no access to Omnicell for
medication administration, leaving patients without vital medication – all violations of law.8
Plaintiff further alleges that, between March and October of 2014, on multiple
occasions, she voiced her concerns to Hospital administrators and members of the
Hospital Board (“the Board”) about staffing shortages, call-ins from other nursing staff

8

Id. at p. 4.
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members, nursing staff out on leave, the open position of Director of Nursing, and
promotion of underqualified candidates to employment positions at the Hospital. On
November 13, 2014, Plaintiff filed a Charge of Discrimination with the EEOC and the
LCHR.
Plaintiff assisted a patient in filing a violation of privacy complaint in November of
2014. Plaintiff alleges that a physician at the Hospital entered a patient’s room and gave
him diagnostic lab results while a security guard was present. Plaintiff also contends that
a nurse was present during this alleged violation, but she was never contacted by Human
Resources after the incident was reported. Plaintiff claims that she called Neata Leake
(“Leake”), an employee in the Human Resources department, and that she and the
patient spoke with Leake about filing a formal complaint.
On November 26, 2014, Plaintiff arrived at the hospital in an ambulance with her
four year old neighbor who was suffering from respiratory distress. Plaintiff maintains that
she performed CPR on her neighbor at the scene and that the EMS director asked her to
accompany the child to the Hospital to assist with resuscitation efforts. Plaintiff claims
that, when she arrived at the Hospital, she gave Dr. Shields and the nurses on staff a
verbal report on her neighbor. Plaintiff alleges that she was told by Judy Jones, interim
director of nursing, “to clock into work since [Plaintiff] was actively taking care of the
patient who was in code status.”9 Unfortunately, resuscitation efforts proved unsuccessful
and the neighbor died. Plaintiff claims that this incident forms the basis of “one of the
accusations made by the Louisiana State Board of Practical Nurse Examiners.”10

9

Id. at p. 6.
Id.
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Following this incident, Plaintiff alleges that she and other African-American coworkers were “wrongfully accused of committing HIPPA violations, subjected to licensure
complaints with their licensing boards, and falsely accused of misconduct by defendants
in retaliation/reprisal for Petitioner’s protected activities.”11
On December 15, 2014, Dr. Shields, Chief Medical Officer, called Plaintiff and told
her she would be suspended without pay for alleged HIPPA violations, and an email
correspondence would follow from the Hospital CEO Lee Chastant (“Chastant”) regarding
her suspension. Dr. Shields also told Plaintiff not to report to work on December 16, 2014,
but “he couldn’t explain exactly why [Plaintiff] was being suspended.”12
Ultimately, there were a total of five nurses suspended for alleged HIPPA
violations. Plaintiff alleges that Caucasian nurses were suspended with pay, given the
opportunity to resign, and all allowed to return to work; however, the two African-American
nurses were suspended without pay and “were fired and not given any due process, they
were never given the chance to meet and discuss the false allegations.”13 On December
16, 2014, Plaintiff informed an employee of the Hospital that she wanted her attorney
present when she was questioned by the Hospital’s attorney; this request was denied.
On December 26, 2014, Plaintiff again alleged racial discrimination and reported two
HIPPA violations that were “summarily dismissed by defendants,” and the Defendants did
not discipline these Caucasian employees.14

11

Id.
Id.
13
Id.
14
Id. at p. 7.
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Defendants sent Plaintiff a back-dated letter of termination, with no explanation,
on January 6, 2015. Defendants reported Plaintiff to the Board of Nursing regarding the
alleged HIPPA violations, placing Plaintiff’s nursing license in danger. The Board of
Nursing closed the investigation and found that Plaintiff had committed no HIPPA
violations. Plaintiff claims she received a letter from Chastant on January 19, 2015,
wherein he stated that her claims of discrimination relating to the manner in which the
December 26, 2014 HIPPA violations were handled were “entirely unjustified.”15
Plaintiff filed this Complaint16 on April 8, 2016, alleging that Defendants violated
Title VII of the Civil Rights Act of 196417 and Louisiana Revised Statute 23:301, et seq.
On May 26, 2016, Plaintiff filed an Amended Complaint18 to include her Notice of Right to
Sue Letter from the Department of Justice. Defendants have filed a Motion to Dismiss
Plaintiff’s claims.
II.

LAW AND ANALYSIS
A. Motion to Dismiss Under 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.’”19 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.”20 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state

15

Id.
Rec. Doc. 1.
17
42 U.S.C. § 2000(e).
18
Rec. Doc. 16.
19
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)).
20
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)).
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16

a claim to relief that is plausible on its face.’”21 In 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. “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.”22 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”23 However,
“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”24 In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”25 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”26 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”27

21

In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d at 467).
22
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
(hereinafter Twombly).
23
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)
(hereinafter “Iqbal”).
24
Twombly, 550 U.S. at 570.
25
Iqbal, 556 U.S. at 678.
26
Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
27
Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
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B. Motion to Dismiss Under Rule 12(b)(1)
“A motion to dismiss under Rule 12(b)(1) is analyzed under the same standard as
a motion to dismiss under Rule 12(b)(6).”28 Pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, a complaint is subject to dismissal if a plaintiff fails “to state a
claim upon which relief can be granted.” “To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead ‘enough facts to state a claim relief that is plausible on its face.’”29
However, when ruling on a Rule 12(b)(1) motion, “the court is permitted to look at
evidence in the record beyond simply those facts alleged in the complaint and its proper
attachments.”30 Ultimately, a motion to dismiss for lack of subject matter jurisdiction
should be granted only if it appears certain that the plaintiff cannot prove any set of facts
in support of his claim which would entitle plaintiff to relief.”31
C. Prescription
Defendants argue that “all of the alleged discrimination Plaintiff asserts in her
EEOC Charge occurred […] outside of the 300-day statutory period...”32 “When an
employee discrimination claim is brought in a deferral state, an aggrieved employee must
file a claim with the designated state agency of the EEOC within 300 days of the alleged
unlawful employment action.”33 Plaintiff’s EEOC “Charge of Discrimination” states that the

28

Hall v. Louisiana, et. Al.., 974 F.Supp.2d 978, 985 (M.D. La. Sep. 30, 2013)(citing Benton v. U.S.., 960
F.2d 19, 21 (5th Cir. 1998)).
29
Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
30
Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009).
31
Ramming, 281 F.3d at 161 (citing Home Builders Ass’n of Miss., Inc. v. City of Madison Miss., 143 F.3d
1006, 1010 (5th Cir. 1998)).
32
Rec. Doc. 13-1, p. 5.
33
Kirkland v. Big Lots Store, Inc., 547 Fed.Appx. 570, 572-73 (5th Cir. 2013).(See Nat’l R. R. Passenger
Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
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earliest and latest date of discrimination was January 23, 2014.34 If the claim is filed within
the 300 days, it is not prescribed.35
The Fifth Circuit in Conner v. Louisiana Department of Health and Hospitals held:
This court has recognized that an intake questionnaire that
informs the EEOC of the identity of the parties and describes
the alleged discriminatory conduct in enough detail to enable
the EEOC to issue an official notice of charge to the
respondent is sufficient to set [ ] the administrative machinery
in motion.36
It is undisputed that Plaintiff submitted an intake questionnaire to the EEOC.37 The issue
before the Court is the date Plaintiff submitted her EEOC intake questionnaire. Plaintiff
argues that the intake questionnaire was submitted on September 19, 2014.38
The Fifth Circuit in Kirkland v. Big Lots Store Inc. examined the question before
the Court – what is the date that an EEOC intake questionnaire is deemed submitted for
purposes of calculating the 300 day prescriptive period in Louisiana.39 The plaintiff in
Kirkland, like the Plaintiff in the present case,40 argued that the EEOC intake
questionnaire is submitted on the day it was mailed. In Ruling, the court stated:
Mailing is not filing for purposes of Title VII. A claim is
considered filed when it is received by the EEOC or the state
agency responsible for the administration of complaints of
employment discrimination. Accordingly, Kirkland’s claim was
not filed until it was received by the LCHR [Louisiana
Commission on Human Rights] on May 6, 2010.41
34

Rec. Doc. 22-1, p. 22.
See Kirkland, 547 Fed.Appx. at 572-73.
36
247 Fed. Appx. 480, 481 (5th Cir. 2007)(quoting Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 78
(5th Cir. 1982); see also Edelman v. Lynchburg College, 535 U.S. 106, 118-119, 122 S.Ct. 1145, 152 L.Ed.
188 (2002)(internal citations omitted).
37
See Rec. Docs. 13-1, 20.
38
Rec. Doc. 22, p. 5.
39
547 Fed.Appx. at 572-73.
40
Rec. Doc. 22, p. 5.
41
Kirkland, 547 Fed.Appx. at 573.(quoting Taylor v. Gen. Tel. Co. of Sw., 759 F.2d 437, 440 (5th Cir.
1985)(29 C.F.R. § 1601.13(a)(4)(2)(a)(A)(2010)).(emphasis original).
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35

Based upon the holding of the Fifth Circuit in Kirkland, Plaintiff’s EEOC intake
questionnaire will be deemed submitted on the date it was received by the LCHR.42
Examining the EEOC documents submitted, it is clear that the EEOC provided a
letter dated October 8, 2014 wherein the EEOC “acknowledge[d] receipt of the abovenumbered charge of employment discrimination.”43 As this is the date that the EEOC is
acknowledging receipt of Plaintiff’s EEOC complaint, the Court finds that the EEOC
received the Plaintiff’s intake questionnaire on October 8, 2014. Therefore, as long as
the Plaintiff’s alleged discriminatory conduct occurred on or after December 12, 2013, her
claim is not time barred.

Per her EEOC charge, Plaintiff’s first and last date of

discrimination occurred on January 23, 2014.44

Accordingly, Plaintiff’s Title VII

discrimination claim is not time barred as she filed her EEOC complaint within the 300
day prescriptive period required in Louisiana.45
For the above reasons, Defendants’ Motion to Dismiss Plaintiff’s Title VII
discrimination claim as time barred is DENIED.
D. Scope of Plaintiff’s EEOC Charge
Defendants argue that “Plaintiff’s failure to promote claim should be dismissed
because she failed to exhaust all of her administrative remedies by omitting it from her

42

The Court rejects Plaintiff’s argument that the submission date is September 17, 2014 based upon the
Supreme Court’s decision in Edelman v. Lynchburg College. 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d
188 (2002). See Rec. Doc. 17, pp. 4-5. Applying Edelman to the present case, it is clear that the submission
date relates back to when the Plaintiff’s EEOC intake questionnaire was “filed” with the EEOC. However,
the Fifth Circuit in Kirkland clearly stated that an EEOC intake questionnaire is deemed “filed” in Louisiana
when it is received by the LCHR. Accordingly, the Court deems Plaintiff’s intake questionnaire “filed” on
the date it was received by the LCHR.
43
Rec. Doc. 22-1, p. 17.
44
See Rec. Doc. 22-1, p. 22.
45
The Court need not examine Plaintiff’s Lilly Ledbetter arguments as her discrimination claim is not time
barred.
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EEOC Charge.”46 Plaintiff counters that she “was not required to mention the specific
words failure to promote.”47
The question before the Court is whether Plaintiff has exhausted her administrative
remedies on her failure to promote claim. While Plaintiff’s Complaint contains allegations
of retaliation, harassment, and discrimination for disparate pay and failure to promote,48
the EEOC Charge does not contain a claim for failure to promote.49 The court in Pacheco
v. Mineta, relying on Fellows v. Universal Restaurants, Inc. and Fine v. GAF Chemical
Corporation, stated: “this court interprets what is properly embraced in a review of a TitleVII claim somewhat broadly, not solely by the scope of the administrative charge itself,
but by the scope of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.”50 Accordingly, the Court may “look slightly beyond
[the charge’s] four corners, to its substance rather than its label.”51
The language contained in the “Particulars” portion of the Plaintiff’s Charge clearly
alleges that she was discriminated against in being paid at a lower rate. Absent, however,
in the “Particulars” portion is any alleged discrimination claim based on failure to promote.
To allow Plaintiff’s failure to promote claim to proceed “despite its loose fit with the
administrative charge and investigation …[] would circumvent …agency efforts to
voluntary compliance before a civil action is instituted.”52 Because the facts supporting
Plaintiff’s claim for failure to promote in her Complaint are separate from the incidents of

46

Rec. Doc. 13-1, p. 9.
Rec. Doc. 26, p. 2.
48
Rec. Doc. 16, p. 7.
49
Rec. Doc. 22-1, p. 22.
50
448 F.3d at 789.
51
Id.
52
Id. (quoting Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981)).
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47

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discrimination for disparate pay contained in her charge,53 the Court finds that Plaintiff’s
failure to promote claim was unlikely “to grow out of the charge”54 of disparate pay.
Accordingly, Defendants’ Motion to Dismiss Plaintiff’s failure to promote claim pursuant
to FRCP 12(b)(1) is GRANTED.
E. Plaintiff’s State Law Claims
Defendants argue that Plaintiff’s Louisiana state law discrimination claim has
prescribed, along with her claims for harassment and retaliation because Defendants
were not informed of these claims. Louisiana Revised Statute 23:303(C) states:
A plaintiff who believes he or she has been discriminated
against, and who intends to pursue court action shall give the
person who has allegedly discriminated written notice of this
fact at least thirty days before initiating court action, shall
detail the alleged discrimination, and both parties shall make
a good faith effort to resolved the dispute prior to initiating
court action.55
Federal district courts in Louisiana “have held [that] the filing of an EEOC charge of
discrimination satisfies the notice requirement [La. R.S. 23:303(c)], but limits the state
claim to the alleged discrimination detailed in the EEOC charge…”56 As previously
discussed, Plaintiff’s EEOC discrimination, retaliation, and harassment Charge was
timely filed and is not time barred. Defendants further argue that Plaintiff’s state law
claims for retaliatory discharge should be dismissed as they were not contained in the
EEOC Charge which satisfies the notice requirement under La. R.S. 23:303(c). Plaintiff’s
Complaint is limited solely to the acts described in her EEOC Charge and those which

53

See Rec. Docs. 16, 22-1, p. 22.
Pacheco, 448 F.3d at 789.
55
La. R.S. 23:303(C).
56
Johnson v. Hospital Corp. of America, 767 F.Supp.2d 678, 700 (W.D. La. Feb.11, 2011).(See e.g.,
Johnson v. Harrah’s Entertainment, Inc., 2005 WL 3541139, *4 (E.D. La. 2005); Dorgan v. Foster, 2006 WL
2067716, *5, (E.D. La. 2006), citing Dunn v. Nextel So. Corp., 207 F.Supp.2d 523, 524 (M.D. La. 2002).
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54

could reasonably be expected to grow from the EEOC investigation. As discussed above,
Plaintiff’s constructive discharge and demotion claims were likely to grow out of her
charge of discrimination, and they are therefore properly before this Court. Because
Plaintiff’s Louisiana law claims are based upon her EEOC Charge, Defendants were
given notice of her retaliation, harassment, discrimination, constructive discharge, and
demotion claims because these claims were contained in, or likely to grow out of, her
EEOC complaint.
Accordingly, Defendants’ Motion to Dismiss Plaintiff’s state law discrimination
harassment, retaliation, constructive discharge, and demotion claim is DENIED.
F. Plaintiff’s Claim Against the Board of Commissioners
Defendants argue Plaintiff’s claims against the Board of Commissioners (“Board”)
should be dismissed because “nowhere in the Complaint does Plaintiff set forth any
factual allegations that they engaged in any wrongful or unlawful conduct.”57

The

Complaint alleges the “[Board] had ‘absolute control and authority over’ the West
Feliciana Parish Hospital.”58 Viewing Plaintiff’s allegations in the light most favorable to
her, Plaintiff’s allegations against the Hospital “can also be construed as allegations
against the [Board].”59
Thus, the motion to dismiss is DENIED as to the Board.

57

Rec. Doc. 10-1, p. 13.
Rec. Doc. 1, p. 1.
59
Williams v. Hospital Service Dist. of West Feliciana Parish, La., 15-cv-00095, 2015 WL 4656910 at *5
(M.D. La. Aug. 5, 2015).
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58

III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss for Failure to State a

Claim60 is GRANTED in part and DENIED in part. Defendant’s motion does not move for,
nor do they argue in support of, dismissal of Plaintiff’s FMLA claims. Therefore Plaintiff’s
FMLA claims are not subject to dismissal, and remain before the Court.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on March 22, 2017.

S

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

60

Rec. Doc. 13.
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