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

Filing 23

RULING granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim. Signed by Judge Shelly D. Dick on 3/22/2017. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CAROLYN P. HALEY

CIVIL ACTION

VERSUS

16-224-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, Carolyn Haley (“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 in April of 2010 as a staff registered nurse

by the West Feliciana Parish Hospital (“Hospital”). Her starting salary was $25 an hour
and, by October of 2014, Plaintiff alleges she was paid $28.78 an hour. Plaintiff worked
as a registered nurse for over 34 years and holds two Masters’ degrees.

1

Rec. Doc. 10.
Rec. Doc. 17.
3
Rec. Doc. 18.
4
Rec. Doc. 21.
5
The Court bases the factual background on Rec. Doc. 1.
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2

Page 1 of 16

In June of 2013, Defendants hired a male Caucasian nurse, who held a bachelor’s
degree and 10 years of experience, at a rate of $28 an hour, and he was later allegedly
given a raise to $28.50 an hour within his first year of employment. Defendants also hired
a female Caucasian nurse who was given a raise in her first year of employment, but
Plaintiff alleges she “was told that she could not receive a raise within her first year of
employment.”6
Around December 9, 2013, Plaintiff expressed her interest in the positions of
Compliance Officer, Utilization Review, Infection Control, and Employee Health Nurse
Supervisor at the Hospital to the CEO of the Hospital, Lee Chastant (“Chastant”).
Chastant assigned one of the open positions to a Caucasian female who had a respiratory
therapy background and allegedly less education and credentials than Plaintiff. Plaintiff
protested the denial of her appointment to the position arguing the decision was racially
motivated.
Plaintiff alleges that, at all times while employed at the Hospital, she was paid less
than Caucasian employees of the Hospital although she allegedly 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”7 as all the
employees in housekeeping are African-American; and Caucasian nurses refusing to
treat African-American patients.

6

Rec. Doc. 1, p. 2.
Id. at p. 3.
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7

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On January 14, 2014, Plaintiff met with the former Director of Nursing at the
Hospital, Kathleen Ford (“Ford”), to discuss the discrimination in her pay. Ford allegedly
told Plaintiff that, before each nurse was hired, the nurse met with Kevin Mulligan
(“Mulligan”), the Human Resource Consultant at the Hospital, and each employee’s salary
was based on a formula. Plaintiff requested information about this the formula on multiple
occasions, but the Hospital provided no such information.
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 Defendants on May 28, 2014 about the positions discussed in the April
8, 2014 meeting because they had not been posted. Plaintiff also filed a written complaint
of racial and age-based discriminatory pay and denial of promotions with Chastant on
May 28, 2014.

Plaintiff claims she repeatedly asked Defendants to address her

complaints, but Defendants rejected her complaints. On June 3, 2014, Plaintiff filed
another complaint with Defendants concerning the job opportunities posted that year
which Plaintiff claims she was qualified for, to no avail.
Plaintiff and Chastant met on July 2, 2014, and Plaintiff again protested the illegal
discrimination and asked for salary information on Caucasian nurses. In this meeting,
Chastant allegedly said “that promotions were made according ‘to the landscape.’”8
Plaintiff argues that this statement referred “to the races replacing other, i.e., white with a
white.”9

8

Id. at p. 5.
Id.
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On August 12, 2014, a member of the Board met with Judy Jones (“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.”10
Plaintiff and other African-American nurses presented their complaints of racism
to the Board on August 21, 2014. At this meeting, Plaintiff, along with another AfricanAmerican nurse, provided each member of the Board with emails and correspondence
regarding their complaints of racism, “to no avail.”11 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”).
Plaintiff spoke with Chastant on October 21, 2014 regarding nursing staff
shortages. Plaintiff told several employees of the Hospital that a staff nurse was required
to work 24 hours straight without a break.
On November 24, 2014, Plaintiff discovered that a female Caucasian nurse was
hired for a position which Plaintiff had applied for in September of 2014. According to
Plaintiff, the nurse in question had far inferior qualifications, and Plaintiff filed a complaint
with the Defendants objecting to the denial of her promotion, as she believes it was
racially motivated.
Due to a staff shortage at the Hospital, agency nurses were hired. On January 20,
2015, Plaintiff filed a formal complaint with the Department of Health and Hospitals
(“DHH”) alleging violations of Louisiana law. Plaintiff met with the Hospital Compliance

10

Id.
Id. at p. 6.
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Officer and the Hospital payroll director. In this meeting, Plaintiff was allegedly informed
that she would not be paid for her call back pay over Thanksgiving Day and the
Thanksgiving holiday weekend in 2014.

Plaintiff alleges that the Hospital paid up to

$93.93 an hour to agency nurses to work during the holiday pay period.
Plaintiff claims that the new Director of Nursing for the Hospital and Chastant
informed her that they would have to “part company.”12 When Plaintiff questioned why
she was being fired, Chastant allegedly informed her it was because she requested call
back pay regarding November of 2014. Plaintiff advised Chastant that he had refused
the call back pay in question months before, to which Plaintiff claims “Chastant admitted
that he was aware, but it was in violation of the policy.”13
Plaintiff filed this Complaint14 on April 8, 2016 alleging that Defendants violated
Title VII of the Civil Rights Act of 196415 and Louisiana Revised Statute 23:301, et seq.
On May 6, 2015, Plaintiff filed an Amended Complaint16 to include her Notice of Right to
Sue from the EEOC, and she “reiterate[ed] and re-allege[ed] all allegations contained in
her original Complaint as if quoted herein in their entirety including her request for trial by
jury.”17 Defendants have filed a Motion to Dismiss Plaintiff’s claims.

12

Id. at p. 7.
Id.
14
Rec. Doc. 1.
15
42 U.S.C. § 2000(e).
16
Rec. Doc. 7.
17
Id. at. p. 1.
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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.’”18 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.”19 “To
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.’”20 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.”21 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”22 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.”23 In order to satisfy the plausibility standard, the plaintiff must show “more than

18

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)).
19
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)).
20
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).
21
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
(hereinafter Twombly).
22
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)
(hereinafter “Iqbal”).
23
Twombly, 550 U.S. at 570.
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a sheer possibility that the defendant has acted unlawfully.”24 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”25 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”26
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).”27 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.’”28
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.”29 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.”30
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
24

Iqbal, 556 U.S. at 678.
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).
26
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)).
27
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)).
28
Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
29
Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009).
30
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)).
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25

required under both the LEDL and Title VII.”31 In Defendants’ Reply, they acknowledge
that, “Under Title VII, a charge is timely filed when received by the EEOC, not when it is
mailed to the EEOC.”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 earliest and latest date of discrimination was December
12, 2013.34 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 17, 2014,38 while

31

Rec. Doc. 10-1, p. 4.
Rec, Doc. 18, p. 2.
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).
34
Rec. Doc. 17-1, p. 25.
35
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. 17, 18.
38
Rec. Doc. 17, p. 5.
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32

Defendants claim that the intake questionnaire was “received by the EEOC at least by
October 2, 2014, alleging sex, age and color discrimination.”39
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.40 The plaintiff in
Kirkland, like the Plaintiff in the present case,41 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, 2010.42
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.43
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.”44 As this is the date that the EEOC
acknowledged receipt of Plaintiff’s EEOC complaint, the Court finds Plaintiff’s EEOC

39

Rec. Doc. 18, p. 2. Defendants also acknowledge on Rec. Doc. 18, p. 2 that the EEOC received the
charge on October 8, 2014.
40
547 Fed.Appx. at 572-73.
41
Rec. Doc. 17, p. 5.
42
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).
43
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 LCHR.
44
Rec. Doc. 17-1, p. 19.
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complaint was filed 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
December 12, 2013.45 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.46
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 retaliation and harassment claims should be
dismissed because “this Court lacks jurisdiction to consider Title VII claims where the
aggrieved party, as Plaintiff, failed to exhaust her administrative remedies.”47 According
to the Defendants, “Plaintiff’s retaliation and harassment claims should be dismissed
because she failed to exhaust her administrative remedies and did not include these
claims in the scope of 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, and age.”50 Plaintiff argues she checked the box marked continuing
action on the charge, and she may make a claim for “further discrimination, harassment,

45

See Rec. Doc. 17-1, p. 25.
The Court need not examine Plaintiff’s continuing violation or Lilly Ledbetter arguments because her
claim is not time barred.
47
Rec. Doc. 10-1, p. 7, citing Clayton v. Rumsfeld, 106 Fed. Appx. 268, 271 (5th Cir. 2004).
48
Id.
49
Rec. Doc. 17-1, p. 25.
50
Id.
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46

retaliation, culminating in her termination.”51 In her 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 relies on Walls v. Mississippi State Department of Public
Welfare and Pacheco v. Mineta in support of this argument.53
Turning to the question of retaliation, the Court will apply the standard articulated
by the Fifth Circuit in Simmons-Myers v. Caesars Entertainment Corporation.54 The Court
in Simmons-Myers applied the Gupta exception, “which does not require exhaustion for
a retaliation claim growing out of an earlier EEOC charge.”55

Plaintiff argues that

Defendants’ retaliatory conduct grew out of her discrimination charge filed with the
EEOC.56 Ordinarily, Plaintiff would be required to “file a supplemental claim, or at the
very least, amend her original EEOC charge”57 for her retaliation claim to be properly
before the Court. If, however, the alleged retaliatory conduct is not “the same inciting
event,”58 but retaliation growing out of an earlier charge, the Court retains ancillary
jurisdiction over the retaliation charge.59 Here, Plaintiff filed her charge of discrimination
on October 8, 2014,60 and was allegedly retaliated against, leading to her termination on
February 25, 2015.61 Per the timeline it is plausible that the alleged retaliatory conduct
grew out of her EEOC Charge, thus, the Court will apply the Gupta exception to Plaintiff’s
retaliation claim and maintain ancillary jurisdiction over Plaintiff’s retaliation claim.
51

Rec. Doc. 17, See Rec. Doc. 17-1, p. 25.
Rec. Doc. 21, p. 1.
53
Id., p. 1-2, citing Walls, 730 F.2d 306, 318 (5th Cir. 1984); Pacheco, 448 F.3d 783, 792 (5th Cir. 2006).
54
515 Fed.Appx. 269 (5th Cir. 2013).
55
Id. at 272 (quoting Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981)).
56
Rec. Doc. 21, p. 1.
57
Simmons-Myers, 515 Fed.Appx. at 273.
58
Id. at 274.
59
See Gupta, 654 F.2d at 414.
60
Rec. Doc. 17-1, p. 19.
61
Rec. Doc. 1, p. 7.
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52

Accordingly, Defendants’ Motion to Dismiss Plaintiff’s retaliation claim pursuant to FRCP
12(b)(1) is DENIED.
The remaining question before the Court is whether Plaintiff has exhausted
administrative remedies on her harassment claim. While Plaintiff’s Complaint contains
allegations of retaliation, harassment, and discrimination,62 the Charge contains only a
claim of discrimination.63

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.”64 Accordingly, the Court may “look slightly beyond [the charge’s] four
corners, to its substance rather than its label.”65
The language contained in the “Particulars” portion of Plaintiff’s charge clearly
alleges that she was discriminated against by being denied promotional opportunities and
being paid at a lower rate.66 Absent, however, in the “Particulars” portion is any alleged
harassment.67 To allow Plaintiff’s harassment claims to proceed “despite its loose fit with
the administrative charge and investigation … is precluded if it would circumvent …
agency efforts to secure voluntary compliance before a civil action is instituted.”68
Because the facts supporting Plaintiff’s claim for harassment in her Complaint are

62

Rec. Doc. 1, p. 8.
Rec. Doc. 17-1, p. 25.
64
448 F.3d at 789.
65
Id.
66
Rec. Doc. 17-1, p. 25
67
Id.
68
Id.(quoting Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981)).
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separate incidents from the incidents of discrimination contained in her Charge,69 the
Court finds it plausible that Plaintiff’s harassment claim “[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.
E. Plaintiff’s State Law Claims
Defendants argue that Plaintiff’s Louisiana state law discrimination claim has
prescribed, along with her claims for retaliation and harassment because they were never
properly alleged.71 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.72
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 claim
to the alleged discrimination detailed in the EEOC charge…”73 As previously discussed,
Plaintiff’s EEOC charge was timely filed and is not time barred. Defendants further argue
that Plaintiff’s state law claims for discrimination and retaliation should be dismissed as
they were not contained in the EEOC charge which satisfies the notice requirement under
La. R.S. 303(c).

69

For the reasons discussed above, the Court finds that Plaintiff’s

See Rec Docs. 1, 17-1, p. 25.
Pacheco, 448 F.3d at 789.
71
Rec. Doc. 10-1, 18.
72
La. R.S. 23:303(C).
73
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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70

Complaint is limited solely to her discrimination claim – the only alleged violation
contained in the Plaintiff’s charge.74 Because Plaintiff’s Louisiana law claims are based
upon her EEOC charge, Defendants could not have been given notice relating to her
harassment and retaliation 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 and
harassment claims because they “attempted and participated in conciliation with Plaintiff
at the EEOC, in order to resolve all of her claims.”75 In a letter dated November 24, 2014,
the EEOC stated, “[m]ediation is offered as an alternative to the often lengthy investigative
process traditionally used to determine the merits of charges of discrimination filed with
the Commission.”76 As discussed above in extensio, the only claim made by Plaintiff in
her EEOC charge was a claim for discrimination. While the Court maintains ancillary
jurisdiction over Plaintiff’s Title VII retaliation claim per the Gupta exception, to maintain
a valid retaliation claim under Louisiana law, however, Plaintiff must provide Defendants
with “separate written notice”77 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

74

Rec. Doc. 17-1, p. 25.
Rec. Doc. 21, p. 3.
76
Rec. Doc. 17-1, p. 28.
77
Mayes v. Office Depot, Inc., 292 F.Supp.2d 878, 889 (W.D. La. Sep. 19, 2003).
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has filed a charge with the EEOC within the requisite time
period.78
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 and retaliation claims] before initiating suit.”79 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). Plaintiff’s Louisiana state law harassment and
retaliation claims are procedurally time barred and are DISMISSED without prejudice,80
but her Louisiana state law discrimination claim is not time barred and, therefore, properly
remains before the Court. Accordingly, Defendants’ Motion is GRANTED in part and
DENIED in part.
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.”81

The

Complaint alleges the “[Board] had ‘absolute control and authority over’ the West

78

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).
79
Id. at *3.
80
The Court need not address Plaintiff’s arguments regarding La. R.S. 23:303(D) as Plaintiff is still required
to provide notice in accordance with La. R.S. 23:303(C) to avail herself of La. R.S. 23:303(D).
81
Rec. Doc. 10-1, p. 14.
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Feliciana Parish Hospital.”82 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].”83
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

Claim84 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

82

Rec. Doc. 1, p. 2.
Williams v. Hospital Service Dist. of West Feliciana Parish, La., 15-cv-00095, 2015 WL 4656910 at *5
(M.D. La. Aug. 5, 2015).
84
Rec. Doc. 10.
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83