Green v. The Hospital Service District of West Feliciana Parish, Louisiana et al

Filing 28

RULING granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim. Signed by Judge Shelly D. Dick on 03/22/2017. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ANGELA GREEN

CIVIL ACTION

VERSUS

16-223-SDD-EWD

THE HOSPITAL SERVICE DISTRICT OF
WEST FELICIANA PARISH, LOUISIANA
AND THE BOARD OF COMMISSIONERS
OF THEHOSPITAL 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, Angela Green (“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 as a PRN registered Nurse by the

Hospital Service of West Feliciana Parish, Louisiana (“Hospital”), on January 31, 2013,
and became a staff RN in April of 2013. When she was hired, the Plaintiff held a
Bachelor’s Degree and 15 years of experience, and her starting rate of pay was $30 per
hour, with an ending rate of pay of $28.75 an hour as a staff nurse. Plaintiff alleges that

1

Rec. Doc. 15.
Rec. Doc. 22.
3
Rec. Doc. 23.
4
Rec. Doc. 26.
5
The Court bases the factual background on Rec. Doc. 11.
2

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a Caucasian nurse, with little or no experience, became a staff nurse with an hourly rate
of pay of $30.00. Plaintiff further claims that she was repeatedly denied promotional
opportunities and “paid in a disparate fashion” because she was African-American.6
Around December 9, 2013, Plaintiff expressed interest in the open position known
as Utilization Review. The Hospital CEO Lee Chastant (“Chastant”) assigned the position
to a Caucasian female who Plaintiff alleges was less qualified. Plaintiff protested her
denial of promotion to the position of Utilization Review and other open positions arguing
the decision was racially motivated.
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,”7 as all the employees in housekeeping are
African-American; and Caucasian nurses refusing to treat African-American patients.
Plaintiff also contends that Defendants did not have a policy regarding harassment,
discrimination, and retaliation while she was an employee.
On April 8, 2014, the nursing department had a meeting wherein Chastant stated
that five positions would be posted for all interested employees per Hospital policy.
Plaintiff emailed Chastant on June 4, 2014, alleging she was denied positions because
she is an African-American. Chastant allegedly admitted he had not posted the positions
and that “he could do as he pleases.”8

6

Id. at p. 2.
Id. at p. 3.
8
Id. at p. 4.
7

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Sometime in July of 2014, Plaintiff met with Chastant, Neta Leake (“Leake”), Judy
Jones (“Jones”), and Kevin Mulligan, a Human Resources Consultant.

During the

meeting, Plaintiff was allegedly told she would only be allowed to ask questions and that
she would not receive any responses. Plaintiff questioned the racist policies at the
Hospital, but allegedly received no answers.
On August 12, 2014, a member of the Board met with Jones, a nurse, and allegedly
told Jones that promotions were not given to Plaintiff and others “because of race, and to
file a written complaint with the Board, and make sure that press was there for the Board
meeting.”9
Plaintiff and other African-American nurses presented their complaints of racism
to the Board on August 21, 2014. At this meeting, Plaintiff, along with other AfricanAmerican nurses, provided each member of the Board with emails and correspondence
regarding their complaints of racism, “to no avail.”10 Plaintiff alleges that, on September
17, 2014, she filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and the Louisiana Commission on Human Rights (“LCHR”).
The position of Utilization Review at the Hospital became available during October
of 2014. Plaintiff applied and was interviewed by Chastant and Chief Medical Officer, Dr.
Anthony Shields (“Dr. Shields”). Plaintiff alleges that a Caucasian candidate was chosen
instead of herself despite Plaintiff being more qualified for the position.
During a two month period, five nurses were suspended, and nine or ten nurses
either resigned or were allegedly fired by the Hospital. The Hospital hired agency nurses,

9

Id. at p. 5.
Id.

10

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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.11
Plaintiff further alleges that, after “multiple meetings, email exchanges, complaints,
reports, protests and attempts to resolve the discriminatory acts” Plaintiff, “because of the
significant compromise to her license,” was left with no choice but to resign and “was
constructively discharged on December 25, 2014.”12
Plaintiff filed this Complaint13 on April 8, 2016, alleging that Defendants violated
Title VII of the Civil Rights Act of 196414 and Louisiana Revised Statute 23:301, et seq.
On May 26, 2016, Plaintiff filed an Amended Complaint15 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.’”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

11

Rec. Doc. 11, p. 5.
Id.
13
Rec. Doc. 1.
14
42 U.S.C. § 2000(e).
15
Rec. Doc. 11.
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)).
12

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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 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.”19 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”20 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.”21 In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”22 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”23 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”24

18

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).
19
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
(hereinafter Twombly).
20
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)
(hereinafter “Iqbal”).
21
Twombly, 550 U.S. at 570.
22
Iqbal, 556 U.S. at 678.
23
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).
24
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).”25 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.’”26
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.”27 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.”28
C. Prescription
Defendants argue that Plaintiff’s “state and federal discrimination claims must be
dismissed due to her failure to comply with certain judicial and statutory prerequisites
required under both the LEDL and Title VII.”29 In Defendants’ Reply, they acknowledge
that, “Under Title VII, a charge is timely filed when received by the EEOC, not when it is

25

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)).
26
Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
27
Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009).
28
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)).
29
Rec. Doc. 15-1, p. 3.

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mailed to the EEOC;”30 “Defendants concede the questionnaire was received by the
EEOC at least by October 8, 2014.”31
“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.”32 Plaintiff’s EEOC “Charge
of Discrimination” states that the earliest and latest date of discrimination was December
12, 2013.33 If the claim is filed within the 300 days, it is not prescribed.34 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.35
It is undisputed that Plaintiff submitted an intake questionnaire to the EEOC.36 The issue
before the Court is the date Plaintiff submitted her EEOC intake questionnaire. Plaintiff
argues that the intake questionnaire was submitted on September 17, 2014,37 while
Defendants claim that the intake questionnaire was “received by the EEOC at least by
October 8, 2014.”38

30

Rec. Doc. 23, p. 2.
Id.
32
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).
33
Rec. Doc. 22-1, p. 23.
34
See Kirkland, 547 Fed.Appx. at 572-73.
35
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).
36
See Rec. Docs. 22, 23.
37
Rec. Doc. 22, p. 5.
38
Rec. Doc. 23, p. 2.
31

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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
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 LCHR.42
Examining the EEOC documents provided, 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 alleged discriminatory conduct occurred on or after December 12, 2013, Plaintiff’s

39

547 Fed.Appx. at 572-73.
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).
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. 22, 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 LCHR.
43
Rec. Doc. 22-1, p. 18.
40

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claim is not time barred.

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

discrimination occurred on December 12, 2013.44

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, for failure to promote, as time barred is DENIED.
D. Scope of Plaintiff’s EEOC Charge
Defendants argue that Plaintiff’s claims for constructive discharge, harassment,
and retaliation should be dismissed because they were not contained in the charge.46
Defendants also allege that Plaintiff’s disparate pay claim should be dismissed as it was
not clearly specified in the charge.47 According to Defendants, “this Court is prohibited
from considering any of the remaining allegations contained in the Complaint because
discovery of such allegations could not reasonably be expected to grow out of the EEOC
investigation into allegations contained in her EEOC charge.”48
In the EEOC Charge of Discrimination (“Charge”) provided by Plaintiff, the box for
retaliation is empty.49 In the Charge, the Plaintiff has clearly marked “discrimination based
on: race, color, sex.”50 Plaintiff argues that she checked the box marked continuing action
on the charge, and she alleged harassment on her cover letter to the EEOC.51 In her

44

See Rec. Doc. 22-1, p. 23.
The Court need not examine Plaintiff’s continuing violation argument as her discrimination claim for failure
to promote is not time barred.
46
Rec. Doc. 15-1, p. 11.
47
Rec. Doc. 23, p. 3.
48
Rec. Doc. 15-1, pp. 11-12.
49
Rec. Doc. 22-1, p. 23.
50
Id.
51
Rec. Doc. 22, See Rec. Doc. 22-1, p. 23.
45

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Sur-Reply, Plaintiff contends “it can reasonably be expected that the Plaintiff’s claim of
harassment and retaliation would grow out of her Charge.”52 Plaintiff further states that
“Plaintiff’s constructive discharge [claim] is instead, direct evidence of Defendant’s
harassment, discrimination, and retaliation.”53 Plaintiff relies on Walls v. Mississippi State
Department of Public Welfare and Pacheco v. Mineta in support of this argument.54
Turning first to the question of retaliation, the Court will apply the standard
articulated by the Fifth Circuit in Simmons-Myers v. Caesars Entertainment Corporation.55
The Simmons-Myers court applied the Gupta exception, “which does not require
exhaustion for a retaliation claim growing out of an earlier EEOC charge.”56 Plaintiff
argues that Defendants’ retaliatory conduct grew out of her discrimination charge filed
with the EEOC.57 Ordinarily, Plaintiff would be required to “file a supplemental claim, or
at the very least, amend her original EEOC charge”58 for her retaliation claim to be
properly before the Court. If, however, the alleged retaliatory conduct is not “the same
inciting event,”59 but retaliation growing out of an earlier charge, the Court retains ancillary
jurisdiction over the retaliation charge.60 Here, Plaintiff filed her charge of discrimination
on October 8, 2014,61 and was subsequently allegedly retaliated against, leading to her
ultimate resignation and alleged constructive discharge on December 25, 2014.62

52

Rec. Doc. 26, p. 2.
Id.
54
Id., p. 2, citing Walls, 730 F.2d 306, 318 (5th Cir. 1984); Pacheco, 448 F.3d 783, 792 (5th Cir. 2006).
55
515 Fed.Appx. 269 (5th Cir. 2013).
56
Id. at 272 (quoting Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981)).
57
Rec. Doc. 26, p. 2.
58
Simmons-Myers, 515 Fed Appx at 273.
59
Id. at 274.
60
See Gupta, 654 F.2d at 414.
61
Rec. Doc. 22-1, p. 18.
62
Rec. Doc. 11, p. 5.
53

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Because the timeline illustrates that the alleged retaliatory conduct grew out of her EEOC
charge, the Court will apply the Gupta exception to Plaintiff’s retaliation claim and
maintain ancillary jurisdiction over this claim. Accordingly, Defendants’ Motion to Dismiss
Plaintiff’s retaliation claim pursuant to FRCP 12(b)(1) is DENIED.
The Court must also examine whether Plaintiff exhausted her administrative
remedies on her harassment claim. While Plaintiff’s Complaint contains allegations of
retaliation, harassment, discrimination, and constructive discharge,63 the charge contains
only a claim of discrimination.64 The Court in Pacheco, relying on Fellows v. Universal
Restaurants, Inc. and Fine v. GAF Chemical Corporation, stated: “this court interprets
what is properly embraced in review of a Title-VII 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.”65
Accordingly, the Court may “look slightly beyond [the charge’s] four corners, to its
substance rather than its label.”66
The language contained in the “Particulars” portion of Plaintiff’s charge clearly
alleges that she was discriminated because she was African-American and denied
promotional opportunities.67 Absent, however, in the “Particulars” portion is any allegation
of harassment. To allow Plaintiff’s harassment claim to proceed would go against the
public policy to encourage “agency efforts to secure voluntary compliance before a civil

63

Id.
Rec. Doc. 22-1, p. 23.
65
448 F.3d at 789.
66
Id.
67
Rec. Doc. 22-1, p. 23.
64

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action is instituted.”68 Because the facts supporting Plaintiff’s claim for harassment in her
Complaint are separate incidents from the incidents of discrimination contained in her
Charge,69 the Court finds it plausible that Plaintiff’s harassment claims “[grew] out of the
charge of discrimination.”70 Accordingly, Defendants’ Motion to Dismiss Plaintiff’s
harassment claim pursuant to FRCP 12(b)(1) is DENIED.
Plaintiff also alleges a claim for constructive discharge in her Complaint.71
Plaintiff’s charge specifically states that she was discriminated against based upon her
“race, color, and sex.”72 The Fifth Circuit in Vicknair v. Louisiana Department of Public
Safety and Corrections examined whether an employee who failed to allege a claim for
constructive discharge in their EEOC charge, could later include a claim for constructive
discharge in their complaint.73 The Vicknair court held that the plaintiff’s amended EEOC
charge “cannot be construed so broadly as to encompass the constructive discharge
claim… [because] [plaintiff’s] EEOC complaint expressly claimed retaliation, and nothing
else.”74 Because “[n]othing in the facts alleged in the second EEOC complaint put
[defendant] on notice of a possible constructive-discharge claim…[plaintiff] failed to
exhaust administrative remedies and cannot seek judicial relief on that claim.”75

68

Id.(quoting Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981)).
See Rec Docs. 11, 22-1, p. 23.
70
Pacheco, 448 F.3d at 789.
71
Rec. Doc. 11, p. 5.
72
Rec. Doc. 22-1, p. 23.
73
555 Fed. Appx. 325, 332 (5th Cir. 2014).
74
Id.
75
Id.
69

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The facts in the present case however are distinguishable from Vicknair. Plaintiff’s
alleged discharge claim is plausibly a form of retaliation by Defendants for filing her
Charge, thus warranting the application of Gupta,76 because her constructive discharge
allegedly arose from the filing of her Charge. Accordingly, Defendants’ Motion to Dismiss
Plaintiff’s constructive discharge claim pursuant to FRCP 12(b)(1) is DENIED.
Defendants allege that Plaintiff’s claim for disparate pay should be dismissed
because Plaintiff failed to allege facts to support a claim for disparate pay in her EEOC
charge.77

Plaintiff contends that her claim for disparate pay could “reasonably be

expected” to grow out of her discrimination claim.78 In Frazier, the Fifth Circuit held, “[t]he
crucial element of a charge of discrimination is the factual statement contained therein.
Everything else entered on the form is, in essence, a mere amplification of the factual
allegations.”79 The factual particulars of Plaintiff’s charge states:
I believe that I was discriminated against due to my race
(black), color and sex (female) in that white employees with
less qualifications than I are less [sic] are being promoted and
I was not and I also believe that other blacks as a class have
also been denied promotions all in violation of Title VII of the
Civil Rights Act of 1964 as amended.80
Nothing in the above statement from Plaintiff’s charge would place Defendants on notice
that she alleged a claim for disparate pay. Plaintiff’s charge clearly alleges a claim for
discrimination based upon failure to promote; therefore, Defendants were only put on
notice that Plaintiff had a claim for failure to promote. Plaintiff uses the Lilly Ledbetter

76

Supra note 56.
Rec. Doc. 23, p. 3.
78
Id., p. 2.
79
Frazier, 509 Fed.Appx. at 374 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir.
1970)).
80
Rec. Doc. 22-1, p. 23.
77

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Fair Pay Act (“Lilly Ledbetter Act”81) in support of her argument that her Title VII claims
were not time barred.82 The Lilly Ledbetter Act is not applicable to the present case
because Plaintiff did not allege discriminatory compensation decisions in her EEOC
charge, and the Lilly Ledbetter Act applies to discrimination in compensation - not
discrimination regarding failure to promote. The Court finds that Plaintiff has failed to
exhaust her administrative remedies regarding her disparate pay claim, and therefore this
claim is premature. Accordingly, Defendants’ Motion to Dismiss Plaintiff’s disparate pay
claim pursuant to FRCP 12(b)(1) is GRANTED.
E. Plaintiff’s State Law Claim
Defendants argue that Plaintiff’s Louisiana state law discrimination claim has
prescribed, along with her claims for harassment, retaliation, constructive discharge, and
disparate pay, because they were never properly alleged. 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.83
Federal district courts in Louisiana “have held [that] the filing of an EEOC charge
of discrimination satisfies the notice requirement [La. R.S. 303(c)], but limits the state

81

42 U.S.C. § 2000e-5(e)(3)(A).
Rec. Doc. 22, p. 6.
83
La. R.S. 23:303(C).
82

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claim to the alleged discrimination detailed in the EEOC charge…”84 As previously
discussed, Plaintiff’s EEOC discrimination charge for failure to promote was timely filed
and is not time barred. Defendants further argue that Plaintiff’s state law claims for
harassment, retaliation, constructive discharge, and disparate pay should be dismissed
as they were not contained in the EEOC charge which satisfies the notice requirement
under La. R.S. 303(c). For the reasons discussed above, the Court finds that Plaintiff’s
Complaint is limited solely to her discrimination claim for failure to promote – the only
alleged violation contained in the Plaintiff’s charge.85 Because Plaintiff’s Louisiana law
claims are based upon her EEOC charge, Defendants could not have been given notice
relating to her harassment, retaliation, constructive discharge, and disparate pay claims
as is required under La. R.S. 303(c), because these claims were not contained in her
EEOC complaint.
Plaintiff contends she provided notice to Defendants regarding the retaliation,
harassment, constructive discharge, and disparate pay claims because they “attempted
and participated in conciliation with Plaintiff at the EEOC, in order to resolve all of her
claims.”86 As discussed above in extensio, the only claim made by Plaintiff in her EEOC
charge was a discrimination claim. While the Court maintains ancillary jurisdiction over
Plaintiff’s Title VII retaliation claim per the Gupta exception, to maintain a valid retaliation

84

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).
85
Rec. Doc. 22-1, p. 23.
86
Rec. Doc. 26, p. 3.

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claim under Louisiana law however, Plaintiff must provide Defendants with “separate
written notice”87 of her retaliation claim before she instituted this suit.
The United States District Court for the Western District in Louisiana in Lombardino
v. Brentwood Health Management L.L.C. held:
[the Louisiana Employment Discrimination statute [La. R.S.
23:301 et seq.]] does not expressly provide for a penalty in the
event of noncompliance with its procedural provisions.
Nonetheless, other courts addressing this issue have
determined that a claim under the LEDL must be dismissed if
the plaintiff fails to satisfy the notice requirements, unless she
has filed a charge with the EEOC within the requisite time
period.88
Because the Plaintiff’s EEOC Charge only contained a claim of discrimination and not
harassment or retaliation, her EEOC Charge could not provide notice to Defendants of
Plaintiff’s state law retaliation and harassment claims. Like the plaintiff in Lombardino,
Plaintiff herein “has failed to provide any additional information which would demonstrate
that she gave written notice to [Defendant] or that she made a good faith effort to resolve
the issues [her harassment, retaliation, constructive discharge, and disparate pay claims]
before initiating suit.”89 With the absence of information that Plaintiff provided notice of
her retaliation and harassment claims before filing this suit, the Court finds that Plaintiff
has failed to satisfy the requirements of La. R.S. 23:303(C).
Accordingly, Defendants’ Motion to Dismiss Plaintiff’s state law discrimination
claim for failure to promote is DENIED, and Defendants’ Motion to Dismiss Plaintiff’s state

87

Mayes v. Office Depot, Inc., 292 F.Supp.2d 878, 889 (W.D. La. Sep. 19, 2003).
Lombardino v. Brentwood Health Management L.L.C, 15-cv-1358, 2005 WL 2600439 at *2 (W.D. La.
Oct. 13, 2005)(See Dunn v. Nextel South Corp., 207 F.Supp. 2d 523, 524 (M.D. La. 2002); see also Trahan
v. Lowe’s Inc., 2002 WL 1560272 at *5 (E.D. La. 2002).
89
Id. at *3.
88

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law harassment, retaliation, disparate pay, and constructive discharge claims is
GRANTED.
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.”90

The

Complaint alleges the “[Board] had ‘absolute control and authority over’ the West
Feliciana Parish Hospital.”91 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].”92
Thus, the motion to dismiss is DENIED as to the Board.
III.

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

Claim93 is GRANTED in part and DENIED in part.
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

90

Rec. Doc. 15-1, p. 13.
Rec. Doc. 11, p. 1.
92
Williams v. Hospital Service Dist. of West Feliciana Parish, La., 15-cv-00095, 2015 WL 4656910 at *5
(M.D. La. Aug. 5, 2015).
93
Rec. Doc. 15.
91

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