O'Daniel v. Industrial Service Solutions et al
Filing
39
ORDER granting 23 Motion to Dismiss with prejudice. The 29 Motion for Leave to File Second Amended Complaint is DENIED. Plaintiff's claims against Defendants are DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 1/2/2018. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BONNIE M. O’DANIEL
CIVIL ACTION
VERSUS
NO. 17-190-RLB
INDUSTRIAL SERVICE SOLUTIONS,
ET AL.
CONSENT CASE
ORDER
Before the Court is Defendants’ Motion to Dismiss with Prejudice (R. Doc. 23) filed on
28, 2017. The motion is opposed. (R. Doc. 30). Defendants filed a Reply. (R. Doc. 31).
Plaintiff filed a Sur-Reply. (R. Doc. 38).
Also before the Court is Plaintiff’s Motion for Leave to File Plaintiff’s Second Amended
Complaint (R. Doc. 29) filed on October 3, 2017. The motion is opposed. (R. Doc. 32).
Because the foregoing motions concern related issues, the Court considers them together.
I.
Background
On March 27, 2017, Bonnie O’Daniel (“Plaintiff”) commenced this action pro se,
alleging, among other things, that she was improperly terminated from her employment. (R. Doc.
1). Plaintiff named as defendants Industrial Service Solutions (“ISS”), Plant-N-Power, Services,
Inc. (“PNP”), Cindy Huber, and Tex Simoneaux, Jr. (collectively, “Defendants”).
On August 14, 2017, Plaintiff, still proceeding pro se, filed an Amended Complaint. (R.
Doc. 18, “Am. Compl.”). In Paragraph 1 of the Amended Complaint, Plaintiff asserts that she
seeks recovery under various federal and state statutes for (1) discrimination based on sex, (2)
reverse discrimination based on retaliation, (3) discrimination based on gender, (4) defamation,
(5) disparate treatment, and (6) intentional infliction of severe emotional distress. (Am. Compl. ¶
JURY
1). According to Plaintiff, her employment with PNP, whose parent company is ISS, was
terminated on June 21, 2016 by Mr. Simoneaux. (Am. Compl. ¶ 12). Plaintiff alleges that her
employment was terminated because she posted on her Facebook page a photograph of a man
wearing a dress at Target store and commented on his ability to use the women’s restroom and/or
dressing room with her daughters. (Am. Compl. ¶ 23).1 Plaintiff alleges that Ms. Huber, the
president of PNP and member of the LGBT community, took offense at the posting and
suggested that she be fired immediately. (Am. Compl. ¶¶ 17, 23).
On August 28, 2017, Defendants filed their motion to dismiss. (R. Doc. 23). Defendants
seek dismissal of the claims raised in the Amended Complaint on the following bases: (1)
Plaintiff’s discrimination claims fail because individual defendants are not proper parties under
federal or state law, Plaintiff failed to administratively exhaust her discrimination claims under
federal and state law, and Plaintiff failed to allege a discriminatory act taken against her due to
her sex or gender; (2) Plaintiff’s retaliation claim fails because individual defendants are not
proper parties under federal or state law and Plaintiff failed to plead any protected activity
necessary under Title VII; (3) Plaintiff’s defamation claim fails because Plaintiff has not alleged
any non-privileged false and defamatory statement made about her by any Defendant; and (4)
Plaintiff’s intentional infliction of emotional distress claim fails because the allegations do not
rise to the necessary level to sustain the claim. (R. Doc. 23 at 1-2, R. Doc. 23-1). Defendants
further submit that any further amendment would be futile and dismissal should be entered with
prejudice. (R. Doc. 23 at 2, R. Doc. 23-1 at 19).
1
Plaintiff specifically acknowledges in the Amended Complaint that she “made a Facebook post that ultimately led
to her dismissal.” (R. Doc. 18 at 4). Defendants submitted a purported copy of Plaintiff’s Facebook post, which
states the following: “So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target.
For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the
women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst.” (R. Doc. 23-1 at 21).
2
On September 15, 2017, counsel enrolled on behalf of Plaintiff. (R. Docs. 25, 26).
On October 3, 2017, Plaintiff filed her motion to amend (R. Doc. 29). Also on October 3,
2017, Plaintiff filed her Opposition to the Motion to Dismiss. (R. Doc. 30).
Plaintiff’s proposed Second Amended Complaint seeks to amend Paragraph 1 of the
Amended Complaint by asserting the following three claims in place of the original six claims:
(1) “The Defendants retaliated against Plaintiff by terminating her for exercising her
constitutionally protected right to freedom of expression, in violation of La. Const. Art. 1 § 7”;
(2) “The Defendants conspired with others to invade Plaintiff’s constitutional right to privacy, in
violation of La. Const. Art. 1 § 7”; and (3) “The Defendants retaliated against Plaintiff by
terminating her in part due to her opposition to the Defendants’ practice of sex discrimination
(i.e., informing Defendants that she intended to file a formal complaint of sex discrimination), in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).” (R. Doc. 29-2 at
1-2). Plaintiff also seeks to allege various additional factual allegations and to modify her prayer
for relief. (R. Doc. 29-2 at 2-9).
Plaintiff’s Opposition to the Motion to Dismiss is likewise limited to addressing the
viability of these three claims. (R. Doc. 30).
In light of the foregoing modification of the claims in Paragraph 1 of the Amended
Complaint, Defendants argue in support of their motion to dismiss that Plaintiff has abandoned
her discrimination, defamation, disparate treatment, and intentional infliction of emotional
distress claims as asserted in the Amended Complaint. (R. Doc. 31 at 1). Defendants also argue
that Plaintiff’s proposed claims for right to privacy, right to free expression, and retaliation are
futile. (R. Doc. 32; see R. Doc. 31 at 2-5). In opposition to Defendants’ motion to dismiss,
Plaintiff argues that her proposed claims for right to privacy, right to free expression, and
3
retaliation are viable, but does not raise any argument in support of a finding that her original six
claims survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (R. Doc.
30). Plaintiff subsequently withdrew her proposed claim for right to privacy, but maintains that
her proposed claims for right to free expression and retaliation are viable. (R. Doc. 38).
Given the foregoing, there is no dispute that the Plaintiff is now only seeking to allege a
freedom of expression claim under Article 1, Section 7, of the Louisiana Constitution, and a
retaliation claim under Title VII. Plaintiff contends that she states a valid claim for retaliation in
violation of her right to freedom of expression because the Louisiana Constitution provides a
remedy for retaliation to private employees, and her Facebook post touched upon a matter of
public concern. (R. Doc. 30 at 5-7). Plaintiff contends that she states a valid claim for retaliation
under Title VII because she engaged in “protected activity” by asserting that she would file a
formal complaint, and later filed a charge with the EEOC, regarding Defendants’ unlawful
practice of discrimination, and Defendant engaged in an “adverse employment action” by
terminating her employment. (R. Doc. 30 at 7-8).
Defendants argue that Plaintiff’s freedom of expression claim is futile because
Defendants are private actors, not state actors or otherwise acting under the color of state law.
(R. Doc. 32 at 4-6; R. Doc. 31 at 2-4). Defendants argue that Plaintiff’s Title VII retaliation
claim is futile because Title VII does not protect complaints concerning harassment based upon a
non-protected characteristic such as sexual orientation. (R. Doc. 32 at 6-10; R. Doc. 31 at 4-5).
Finally, Defendants contend that Plaintiff has failed to demonstrate how the individual
defendants Cindy Huber or Tex Simoneaux, Jr. can be held liable under either claim. (R. Doc. 32
at 10).
4
In surreply, Plaintiff argues that her freedom of expression claim is viable because the
protections provided by the Louisiana Constitution are broader than the U.S. Constitution and
includes protection from private actors. (R. Doc. 38 at 1-3). Plaintiff further argues that with
regard to her retaliation claim, she has demonstrated that she had a reasonable belief that the
employer was engaged in unlawful employment practices. (R. Doc. 38 at 3-4). Finally, Plaintiff
contends that she engaged in “protected activity” before her termination by asserting that she
would file a formal complaint, although she did not file such a complaint until after her
employment was terminated. (R. Doc. 38 at 4).
II.
Law and Analysis
A.
Legal Standards
Under Rule 15, after the period for amending as a matter of course elapses, “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave” and a
“court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The rule
“evinces a bias in favor of granting leave to amend.” Martin's Herend Imports, Inc. v. Diamond
& Gem Trading U.S.A. Co., 195 F.3d 765, 770 (5th Cir. 1999) (quoting Dussouy v. Gulf Coast
Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981)). Although leave to amend should not be
automatically granted, “[a] district court must possess a substantial reason to deny a request for
leave to amend[.]” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005)
(quotations omitted). The Court may consider several factors when determining whether to grant
leave to amend, including “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [and] futility of the amendment. . . .”
5
See Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148, 1153 (5th Cir. 1981) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
“It is within the district court’s discretion to deny a motion to amend if it is futile.”
Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000) (citations omitted).
The “futility” of amendments to a complaint is measured by whether “the amended complaint
would fail to state a claim upon which relief could be granted” under “the same standard of legal
sufficiency as applies under Rule 12(b)(6).” Id. at 873 (citations omitted).
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal
standard set forth in Rule 8, which requires “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In order to survive a Rule 12(b)(6)
motion, a pleading’s language, on its face, must demonstrate that there exists plausibility for
entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). “Determining
whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). In determining whether it is plausible that a pleader is entitled to relief, a
court does not assume the truth of conclusory statements, but rather looks for facts which support
the elements of the pleader’s claim. Twombly, 550 U.S. at 557. Factual assertions are presumed
to be true, but “labels and conclusions” or “a formulaic recitation of the elements of a cause of
action” alone are not enough to withstand a 12(b)(6) motion. Iqbal, 556 U.S. at 678.
B.
Analysis
1.
Plaintiff’s Discrimination, Defamation, and Intentional Infliction of
Emotional Distress Claims in the Amended Complaint
There is no dispute that Plaintiff is effectively seeking to abandon her claims for
discrimination based on sex, reverse discrimination based on retaliation, discrimination based on
6
gender, defamation, and intentional infliction of severe emotional distress. These claims are not
asserted in Plaintiff’s proposed Second Amended Complaint. Furthermore, Plaintiff does not
address the viability of any of these claims in her opposition to Defendant’s motion to dismiss.
(R. Doc. 30). In failing to address these claims, Plaintiff has not opposed the dismissal of those
claims and the Court deems the Motion to Dismiss unopposed in that regard.
The Court also concludes that Plaintiff has voluntarily abandoned the foregoing claims.
Based on the foregoing, the Court will dismiss Plaintiff’s claims for discrimination based on sex,
reverse discrimination based on retaliation, discrimination based on gender, defamation, and
intentional infliction of severe emotional distress with prejudice.
2.
Plaintiff’s Proposed Right to Privacy Claim
Plaintiff has voluntarily withdrawn her proposed right to privacy claim asserted in her
proposed Second Amended Complaint. (R. Doc. 38 at 1). Accordingly, the Court will deny
Plaintiff’s Motion to Amend to the extent it seeks to assert a claim for right to privacy under the
Louisiana Constitution.
3.
Plaintiff’s Proposed Freedom of Expression Claim
In support of her proposed freedom of expression claim, Plaintiff argues that Article 1,
Section 7, of the Louisiana Constitution provides “a remedy for retaliation to private employees,
whereas the U.S. Constitution does not.” (R. Doc. 30 at 6) (Plaintiff’s emphasis). Plaintiff
further argues that she engaged in protected speech on a matter of “public concern” that provides
enhanced constitutional protection from the termination of her employment. (R. Doc. 30 at 6-7).
The Louisiana Constitution, in relevant part, provides the following: “No law shall curtail
or restrain the freedom of speech or of the press. Every person may speak, write, and publish his
sentiments on any subject, but is responsible for abuse of that freedom.” La. Const. art. I, § 7.
7
“Louisiana’s constitutional protection of free speech mirrors that of the First Amendment.”
Heany v. Roberts, 846 F.3d 795, 801 n.2 (5th Cir. 2017) (citing Winn v. New Orleans City, No.
12-1307, 2015 WL 10713690, at *5 (E.D. La. Jan. 14, 2015)). Both the state and federal
constitutional provisions regarding freedom of speech protect against the establishment of laws
limiting freedom of speech. See U.S. Const. amend. I; La. Const. art. I, § 7. It is well settled that
the “First Amendment does not protect a person’s right to private employment, but only affords
rights to persons engaged in protected speech who suffer damages as a result of state action.”
Walle v. Polymer Dev. Labs., Inc., No. 91-1415, 1991 WL 195492, at *5 (E.D. La. Sept. 23,
1991); see Rendell–Baker v. Kohn, 457 U.S. 830, 837 (1982) (“[I]t is fundamental that the First
Amendment prohibits governmental infringement on the right of free speech.”) (emphasis
added); cf. Baynard v. Guardian Life Ins. Co. of Am., 399 So. 2d 1200, 1202 (La. App. 1st Cir.
1981) (stating that Article 1, Section 3, of the Louisiana Constitution of 1974 “prohibits
discrimination by laws, and plaintiff can point to no law which discriminates against him.”).
Accordingly, Plaintiff’s proposed freedom of expression claim under the Louisiana
Constitution against Defendants, who are all non-governmental entities or individuals, is futile,
as it does not state a claim upon which relief can be granted. Plaintiff has not demonstrated that
Article 1, Section 7, of the Louisiana Constitution, which provides the same protections as the
First Amendment of the U.S. Constitution, guarantees any protections from private sector entities
or individuals imposing consequences against an employee under the instant circumstances.
To the extent Plaintiff is attempting to allege a wrongful discharge action on the basis
that her actions constitute an exception to the at-will employment doctrine, the Court also finds
that proposed claim to be futile. In relevant part, the Louisiana Supreme Court has described
Louisiana’s at-will employment doctrine as follows:
8
The employer-employee relationship is a contractual relationship. As such, an
employer and employee may negotiate the terms of an employment contract and
agree to any terms not prohibited by law or public policy. When the employer and
employee are silent on the terms of the employment contract, the civil code
provides the default rule of employment-at-will. This default rule is contained in
LSA-C.C. art. 2747.
Under LSA-C.C. art. 2747, generally, an employer is at liberty to dismiss an
employee at any time for any reason without incurring liability for the discharge.
However, this right is tempered by numerous federal and state laws which
proscribe certain reasons for dismissal of an at-will employee. For instance, an
employee cannot be terminated because of his race, sex, or religious beliefs.
Moreover, various state statutes prevent employers from discharging an employee
for exercising certain statutory rights, such as the right to present workers’
compensation claims. Aside from the federal and state statutory exceptions, there
are no broad policy considerations creating exceptions to employment at will and
affecting relations between employer and employee.
Quebedeaux v. Dow Chem. Co., 820 So. 2d 542, 545-46 (La. 2002) (citations omitted).
Plaintiff relies on dicta found in a Louisiana appellate court decision in support of the
proposition that an employee has a right of action against a private-sector employer when the
employee is terminated for exercise of the constitutionally protected right of free speech. (R.
Doc. 30 at 6). In that decision, the Louisiana Fourth Circuit broadly states, in dicta, that “[a]n
employee cannot be terminated because of race, sex, or religious beliefs or because he/she
exercised constitutionally protected rights such as free speech.” Wusthoff v. Bally's Casino
Lakeshore Resort, Inc., 709 So. 2d 913, 914 (La. App. 4th Cir. 1998) (emphasis added). The
Louisiana Supreme Court, makes clear that “[a]side from the federal and state statutory
exceptions, there are no broad policy considerations creating exceptions to employment at will
and affecting relations between employer and employee.” Quebedeaux, 820 So. 2d at 546
(emphasis added) (citing Gil v. Metal Service Corp., 412 So.2d 706 (La. App. 4th Cir. 1982)).2
2
Indeed, the Wusthoff decision acknowledges that “[t]here are specific Louisiana statutes that set out employees’
rights and prohibit employers from terminating employees because they exercise their right[s].” Wusthoff, 709 So.
2d at 914 (citing Gil, 412 So.2d 706). The earlier Gil decision by the Louisiana Fourth Circuit more specifically
states that while “[c]ourts in many of the United States have held that an employee cannot be terminated for refusal
9
There is no dispute that Plaintiff was employed as an at-will employee by PNP. Plaintiff
does not reference any decision, nor has the Court found any decision, specifically holding that
at-will employees in Louisiana enjoy a private right of action against their private-sector
employers when they are terminated for exercise of speech under Article 1, Section 7, of the
Louisiana Constitution. This Court does not address Plaintiff’s freedom to make such statements
or the inability of the government to prevent them. At the same time, as an at-will employee,
Plaintiff can be held responsible for the consequences of such statements in the private sector.
Other states with at-will employment and similar constitutional protections have refused
to find such a right of action absent specific legislation. See, e.g., McGarvey v. Key Prop. Mgmt.
LLC, 211 P.3d 503 (Wyo. 2009) (refusing to recognize public policy exception to at-will
employment with a private sector employer in light of free expression protections under state
constitution providing that “[e]very person may freely speak, write and publish on all subjects,
being responsible for the abuse of that right.”); Edmondson v. Shearer Lumber Prod., 75 P.3d
733 (Id. 2003) (same where state constitutional provides that “[e]very person may freely speak,
write and publish on all subjects, being responsible for the abuse of that liberty.” ); see also
Tiernan v. Charleston Area Med. Ctr., Inc., 506 S.E. 2d 578, 589-90 (W. Va. 1998) (“The
prevailing view among the majority of courts addressing the issue is that state or federal
constitutional free speech cannot, in the absence of state action, be the basis of a public policy
exception in wrongful discharge claims.”) (citing decisions).
Plaintiff does not reference any Louisiana statute providing Plaintiff a right of action for
wrongful discharge based upon her state constitutional right of freedom of expression. The
to perform an illegal act, even in the absence of a statute . . . because of Louisiana’s traditional and unique deference
to legislative authority, these decisions cannot act as precedent. Gil, 412 So. 2d at 708.
10
Court will not recognize an exception to Louisiana’s at-will employment doctrine in the absence
of such legislation. See Quebedeaux, 820 So. 2d at 546; Gil, 412 So.2d at 708.
Accordingly, to the extent that Plaintiff is attempting to assert a wrongful discharge
action against Defendants on the basis that her exercise of free speech constitutes a public policy
exception to Louisiana’s at-will employment doctrine, the Court concludes that the proposed
amendment is futile.
4.
Plaintiff’s Retaliation Claim in the Proposed Second Amended
Complaint
Title VII makes in unlawful for an employer to retaliate against an employee who
engages in protected activity by opposing an employment practice made unlawful by Title VII.
42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, “a plaintiff must first
show that (1) she participated in an activity protected under the statute; (2) her employer took an
adverse employment action against her; and (3) a causal connection exists between the protected
activity and the adverse action.” Feist v. Louisiana, 730 F.3d 450, 454 (5th Cir. 2013).
To constitute protected activity, “a plaintiff’s complaint — whether formal or informal —
must still concern a discriminatory practice in order to form the basis of a retaliation claim under
an anti-discrimination law.” Guillen v. Calhoun County, No. 11-48, 2012 WL 1802617, at *3
(S.D. Tex. May 16, 2012). “Title VII does not protect opposition to all forms of unscrupulous
conduct.” Brown v. United Parcel Service, Inc., 406 Fed. App’x 837, 840 (5th Cir. 2010).
Instead, the Act only protects opposition to discrimination based on “race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). “Therefore, the relevant question is not whether a
formal accusation of discrimination is made but whether the employee’s communications to the
employer sufficiently convey the employee’s reasonable concerns that the employer has acted or
is acting in an unlawful discriminatory manner.” Yount v. S & A Restaurant Corp., 226 F.3d 641,
11
at *3 (5th Cir. 2000); see also Brown, 406 Fed. App’x at 840 (“Magic words are not required, but
protected opposition must at least alert an employer to the employee’s reasonable belief that
unlawful discrimination is at issue.”).
There is no dispute that there can be no causal connection between Plaintiff’s filing of a
formal EEOC charge after her termination, and any alleged retaliation by the Defendants.
Plaintiff argues, however, that the proposed allegations establish that she engaged in protective
activity by informing Defendants that she would file a formal complaint regarding alleged
discrimination against her prior to her termination. Paragraph 54 of the proposed Second
Amended Complaint asserts that the “formal complaint was to include, among other things,
allegations that Mrs. Huber discriminated against the Plaintiff on the basis of her sex, as a
married, heterosexual female.” (R. Doc. 29-2 at 5). Plaintiff argues that while the foregoing
alleged discrimination based on her status as a “married, heterosexual female” may not be
prohibited under Title VII, she formed a reasonable belief that such discrimination was
prohibited as a form of sex discrimination. (R. Doc. 38 at 3-4).
“Title VII in plain terms does not cover ‘sexual orientation’.” Stewart v. Browngreer, 655
Fed. App’x 1029, 1031 n.1 (5th Cir. 2016) (quoting Brandon v. Sage Corp., 808 F.3d 266, 271
(5th Cir. 2015). The Fifth Circuit has specifically held that discharge based upon sexual
orientation is not prohibited by Title VII. See Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th
Cir. 1979) (“Discharge for homosexuality is not prohibited by Title VII . . . .”). The Eleventh
Circuit has also recently held that Blum is binding precedent, and that nearly all Circuits have
held that sexual orientation discrimination is not actionable under Title VII. See Evans v.
Georgia Reg'l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017) (citing decisions from nearly all
Circuits holding that).
12
While Plaintiff attempts to couch her retaliation claim in terms of “sex discrimination,”
she is in fact proposing to allege a claim for retaliation under Title VII on the basis that she
reasonably believed that she could not be discriminated against based upon her sexual orientation
as a heterosexual female. Nothing in Plaintiff’s proposed allegations support a finding that she is
seeking to allege that she faced discrimination on the basis of gender non-conformity, which may
constitute sex-based discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). It is
unreasonable for Plaintiff to believe that discrimination based on her status as a married,
heterosexual female constitutes discrimination on the basis of her sex. It is similarly
unreasonable for Plaintiff to believe that discrimination based on sexual orientation constitutes
protected activity. Based on the foregoing, the Court finds no basis for concluding that Plaintiff
engaged in protective activity and/or was reasonably concerned that she engaged in protective
activity. Accordingly, Plaintiff has not met the first prong for establishing a prima facie case of
retaliation under Title VII.
Furthermore, even if Title VII did offer protection regarding sexual orientation
discrimination, Plaintiff does not allege, or propose any allegations, indicating that Defendants
terminated her because of her sexual orientation. At most, Plaintiff alleges that Ms. Huber was
offended by Plaintiff’s Facebook post posting, and ultimately directed Plaintiff’s termination.
Plaintiff does not specifically allege any instances in which Ms. Huber or any of the other
Defendants discriminated against Plaintiff on the basis of her being a “married, heterosexual
female” or otherwise made any references to her sex or sexual orientation in connection with her
termination. The Amended Complaint likewise makes clear that Ms. Huber and the Plaintiff
“had a great relationship before the [Facebook] incident” and that Ms. Huber was aware that
Plaintiff was heterosexual, and “even sponsored Mrs. O’Daniel’s daughter’s softball team.” (R.
13
Doc. 18 at 5). Accordingly, Plaintiff’s assertion that she has a claim for retaliation based on
unlawful acts regarding her sex or sexual orientation are conclusory and fail to state a claim upon
which relief can be granted.
Finally, the Fifth Circuit has consistently held that “[i]ndividuals are not liable under
Title VII in either their individual or official capacities.” Ackel v. National Communications,
Inc., 339 F.3d 376, 381 (5th Cir. 2003) (citing Smith v. Amedisys, Inc., 298 F.3d 434, 448-49 (5th
Cir. 2002)); Baldwin v. Layton, 300 F. App’x 321, 323 (5th Cir. 2008); Indest v. Freeman
Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999)). Accordingly, Plaintiff’s proposed
retaliation claim under Title VII is also futile as to Cindy Huber and Rex Simoneaux, Jr., on the
basis that they cannot be held liable as individuals.
III.
Conclusion
Based on the foregoing,
IT IS ORDERED that Defendants’ Motion to Dismiss with Prejudice (R. Doc. 23) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Plaintiff’s
Second Amended Complaint (R. Doc. 29) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendants are
DISMISSED WITH PREJUDICE.
Signed in Baton Rouge, Louisiana, on January 2, 2018.
S
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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