Jenkins v. Louisiana Workforce Commission

Filing 76

MEMORANDUM RULING re 68 MOTION to Dismiss For Failure to State a Claim filed by State of Louisiana Workforce Commission. Signed by Judge S Maurice Hicks on 08/19/2016. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
NELLIE B. JENKINS

CIVIL ACTION NO. 14-3276

VERSUS

JUDGE S. MAURICE HICKS, JR.

STATE OF LOUISIANA
WORKFORCE COMMISSION

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court is a Rule 12(b)(6) Motion to Dismiss (Record Document 68) filed
by Defendant, State of Louisiana Workforce Commission (“LWC”). A Memorandum in
Opposition was filed by Plaintiff, Nellie B. Jenkins (“Jenkins”). See Record Document 70.
A Reply was filed by LWC. See Record Document 75. For the reasons which follow, the
Motion to Dismiss is GRANTED and all of Jenkins’ claims are DISMISSED.
BACKGROUND
I.

Factual Background
Jenkins began working for the State of Louisiana on June 8, 1984, as an Eligibility

Determination Examiner. She currently works for Louisiana Rehabilitation Services (LRS)
as a Rehabilitation District Supervisor. See Record Document 67 at ¶ 4. On June 6, 2014,
Jenkins filed an EEOC Charge of Discrimination alleging sexual and racial discrimination
and retaliation by LRC. See Record Document 1, Ex.1. Jenkins asserted that she was
“passed over” for the position of Regional Manager based on her race, sex, and retaliation.
Id. at ¶ 5. On August 13, 2014, the EEOC issued Jenkins a right to sue letter. See id. at
¶ 17. During Jenkins’ employment, Gerald Dyess (“Dyess”), a white male who was the
Rehabilitation Regional Manager and Jenkins’ supervisor, promoted John Vaughn
(“Vaughn”), also a white male, from Counselor to Rehabilitation Employment Development

Specialist to Supervisor, each time allegedly over more experienced staff personnel. See
id. at ¶ 6.
Jenkins alleges that Dyess undermined her supervisory authority over two
subordinate white female employees by telling them that they were to report directly to him
instead of Jenkins. See id. at ¶ 7. Following this event, Jenkins filed a grievance about this
practice and Dyess allegedly retaliated by telling other employees that he intended to
ensure Jenkins would not be promoted to Regional Manager. See id. Dyess left LRS on
December 20, 2013 and Vaughn was placed in charge of the daily operations of the
Shreveport Rehabilitation Services office on December 23, 2013. See id. at ¶ 8. Jenkins
alleges that there was a long and consistent history within the LRS Shreveport office of
placing the senior supervisor in charge when the Regional Manager is not in the office.
See id. Jenkins has 30 years of experience with the State of Louisiana and 23 years of
experience with LRS, 9 of which are supervisory experience. See id. at ¶ 9. Vaughn
allegedly had approximately 20 years of experience with the State of Louisiana, 12 years
of experience with LRS and 4 years of supervisory experience. See id.
Jenkins argues that by passing her over for the supervisor in charge position, the
Director and Assistant Director of LRS communicated to Jenkins that it would be a waste
of time for her to apply for the position of Rehabilitation Regional Manager. See id. at ¶ 11.
Specifically, Jenkins argues that it would have been a futile gesture for her to apply for the
promotion. See id. In January 2014, the LRS Director and Assistant Director requested
a meeting with Jenkins to address what they considered was an inappropriate case note.
See id. at ¶ 12. In March 2014, LRS formally appointed Vaughan as the Rehabilitation
Regional Manager for the LRS Shreveport Region. See id. at ¶ 13.
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II.

Procedural Background
Jenkins filed her Original Complaint (Record Document 1) on November 13, 2014.

This Court held a status conference on February 25, 2016 and advised Jenkins’ counsel
that he would have fourteen (14) days to file a Motion for Leave of Court to Amend
Complaint.

See Record Document 59.

A Motion for Leave to File First Amended

Complaint (Record Document 57) was filed on February 25, 2016, but was denied by this
Court on May 17, 2016. See Record Document 64. Jenkins then filed a Motion for Leave
to File Second Amended Complaint (Record Document 65), which was granted on May 20,
2016. See Record Document 66. Defendants have filed a Motion to Dismiss Amended
Complaint (Record Document 68).
LAW AND ANALYSIS
I.

Rule 12(b)(6) Standard
The Motion to Dismiss is filed pursuant to Federal Rule of Civil Procedure 12(b)(6).

In assessing a motion to dismiss for failure to state a claim, the court must accept as true
all well-pleaded facts in the complaint and view those facts in the light most favorable to the
plaintiff. See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007).
“To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual
allegations,’ but must provide the plaintiff’s grounds for entitlement to relief-including factual
allegations that when assumed to be true ‘raise a right to relief above the speculative
level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007), quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-556, 127 S.Ct. 1955, 1964-1965 (2007).
The task is “to determine whether the plaintiff has stated a legally cognizable claim
that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star Fund V
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(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010), citing Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949.
II.

Amended Complaint
Jenkins makes the procedural argument that it is unclear which “amended

complaint” is being addressed in the Motion to Dismiss (Record Document 68), arguing that
“LWC is attacking Ms. Jenkins’ Amended Complaint (Record Document 57-1), a document
that never made its way into the record.” See Record Document 70. The record appears
clear to this Court that the Motion to Dismiss Amended Complaint (Record Document 68)
is in reference to what has been entitled “Second Amended Complaint” (Record Document
67). Jenkins filed a Motion for Leave to File Amended Complaint (Record Document 57)
that chronologically was the “First Amended Complaint.” The Motion for Leave was denied
by this Court and therefore the “First Amended Complaint” was never entered into the
record. Accordingly, LWC’s reference to the “Amended Complaint” in its Motion to Dismiss
could only be a reference to the “Second Amended Complaint.”
III.

Failure to State a Claim Upon Which Relief May be Granted Under Title VII
LWC argues that Jenkins has failed to state a claim upon which relief may be

granted under Title VII, specifically that Jenkins has failed to state a claim for failure to
promote and retaliation.
A.

Failure to State a Claim for Failure to Promote

In order to show a failure to promote, the plaintiff must show that “(1) he belongs to
a protected class; (2) he applied for and was qualified for a position for which applicants
were being sought; (3) he was rejected; and (4) a person outside of his protected class was
hired for the position.” Burrell v. Dr. Pepper/ Seven Up Bottling Group Inc. 482 F. 3d 408,
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412 (5th Cir. 2007).
In order to overcome the motion to dismiss, Jenkins’ complaint must contain
sufficient factual matter that, if it were accepted as true, would state a claim to relief that
is plausible on its face. See Iqbal, 556 U.S. at 678. Jenkins’ “Second Amended Complaint”
states that she is a member of two protected classes under Title VII, being a woman and
African-American. See Record Document 67. This is sufficient to satisfy the pleading
requirement for the first element of belonging to a protected class.
With regards to the requirement that she applied for and was qualified for a position
for which applicants were being sought, it is undisputed that Jenkins did not apply for the
promotion with LRS, but rather she argues that there was a “well-known history of hiring
the supervisor in charge as the Regional Manager.” Record Document 67, ¶ 8. Jenkins
argues that it would have been a “futile gesture” for her to apply for the promotion, as “she
was deterred from doing so by the well-known history and policy of hiring the supervisor
in charge to become the Regional Manager.” Id.
A plaintiff may still bring a claim for failure to promote even if they did not apply for
the promotion, so long as they can prove that it would have been a futile gesture. The
“futile gesture” exception will only apply where “the applicant for the promotion was
deterred by a known and consistently enforced policy of discrimination.” Irons v. Aircraft
Service Intern., Inc., 392 Fed. Appx. 305 (5th Cir. 2010), citing Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 406 (5th Cir.1999). In this instance, Jenkins would have to
show that she was deterred by a known and consistently enforced policy of discrimination
on the part of the LRS Shreveport office.
Jenkins’ argument is that the LRS Shreveport office had a “well-known history” of
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hiring the supervisor in charge to be the Regional Manager, which would have been her
when Dyess left the LRS Shreveport office. Instead, she alleges she was passed over
when Vaughn, a white male, was placed in charge of the daily operations of the LRS
Shreveport office and ultimately promoted to the Rehabilitation Regional Manager. Jenkins
points to the fact that she had 30 years of experience with the State of Louisiana, 23 years
of experience with LRS and 9 years of supervisory experience. Vaughn on the other hand
had 20 years of experience with the State of Louisiana, 12 years of experience with LRS,
and 4 years of supervisory experience. See Record Document 67, § 9.
Jenkins alleges that “never in the history of the Shreveport LRS office has someone
with less time working for the state, less time working for the agency, less supervisory
experience, and less time holding the educational level required by the agency been
promoted over someone who has more of each of these requirements.” Id. at § 10. Taking
Jenkins allegations as true, it appears that Vaughn being promoted instead of her did not
comply with the usual practice of the LRS Shreveport office. The allegations contained in
the complaint do not establish however that she was “deterred by a known and consistently
enforced policy of discrimination.” Jenkins offers no evidence of any other instances of an
individual being discriminated against that would establish a policy that deterred her from
applying from the position. This appears to be an isolated incident in which Jenkins was
not promoted, and even if she believed that Dyess would not promote her based on
statements he made, that does not rise to the level necessary to establish a known and
consistently enforced policy of discrimination. By failing to plead facts sufficient to raise a
claim for failure to promote, based on Jenkins’ failure to apply for the position and failure
to satisfy the requirements for a futile gesture, the claim for failure to promote must be
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dismissed.
B.

Failure to State a Claim for Retaliation

LWC argues that Jenkins has failed to state a claim for retaliation in that she has
failed to satisfy the three elements of a claim for retaliation: (1) she failed to allege that she
engaged in an activity protected by Title VII (2), she failed to allege an adverse employment
action occurred, and (3) she failed to allege a causal link between a protected activity and
any adverse employment action. Jenkins alleges that her supervisor, Dyess, instructed two
subordinate white females who reported to Jenkins that they were to start reporting directly
to him. Jenkins then filed a grievance about this practice, and Dyess allegedly retaliated
by telling other employees that the intended to ensure that Jenkins would not be promoted,
and ultimately Vaughn was given the promotion. See Record Document 67, § 7.
Taking the facts of the complaint as true, Jenkins filed a grievance following Dyess
telling two white female employees that they were to report to him instead of Jenkins.
Jenkins argues that the filing of the grievance about Dyess’ actions is the protected activity.
In order for this to be a protected activity, the action must show that Jenkins “opposed any
practice made an unlawful employment practice by this subchapter.” See 42 U.S.C.
§2000e-3. In order to be an unlawful employment practice under the subchapter, there
must be discrimination based upon an individual’s race, religion, sex or national origin. See
id.

The complaint merely states that Dyess told the two subordinate white female

employees to report directly to him instead of to Jenkins. Although the race of the two
subordinate employees is identified, that is not sufficient to state a claim for the required
protected activity.
Even if the alleged activity was protected, Jenkins would still have to allege an
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adverse employment action occurred and that there is a causal link between that adverse
employment action and the protected activity. LRS argues that Dyess was Jenkins
supervisor and therefore he was entitled to make changes with regards to who was under
Jenkins’ supervision. Jenkins alleges that after she filed her grievance, Dyess retaliated
by “telling other employees in the office that he intended to ensure Jenkins would not be
promoted by talking to Kenneth York.” See Record Document 67. The question then is
whether a link can be shown between Dyess’ alleged statement that he would prevent
Jenkins from being promoted and the alleged protected activity. Jenkins has failed to
allege facts sufficient to show that there is a causal link between her failure to be promoted
and the alleged statements by Dyess. Accordingly, the claim for retaliation must be
dismissed.
C.

Failure to State a Claim to Relief Under Louisiana State Tort Law

LWC additionally argues that Jenkins has failed to state a claim to relief under
Louisiana state tort law. It specifically argues that Jenkins cannot bring a negligence claim
under Louisiana Civil Code Article 2315 in conjunction with Title VII claims and that Jenkins
has failed to state a claim for Intentional Infliction of Emotional Distress (“IIED”).
Jenkins alleges in her Second Amended Complaint that LRS’ actions “constitute a
breach of duty imposed on LRS, which duty was designed to prevent the injury suffered by
Ms. Jenkins in this case, and are thus torts within the meaning of La. Civil Code art. 2315.”
Record Document 67. LWC and Jenkins have cited conflicting case law as to whether
Article 2315 includes allegations of employment discrimination. The Fifth Circuit addressed
this issue in McCoy v. City of Shreveport, where the Court reasoned that “[t]o the extent
that McCoy argues that her tort claim was not limited to IIED, La. Civil Code Article 2315
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does not protect against employment discrimination.” McCoy v. City of Shreveport, 2007
WL 3101010 (5th Cir. 2007). As in McCoy, Jenkins has alleged employment discrimination
on the part of LRS, with the facts alleged specific to her employment discrimination claim.
La. Civil Code art. 2315 is not the proper statute under which to assert an employment
discrimination claim. Therefore, any such claims must be dismissed, with the exception of
the IIED claim.
An intentional tort claim such as IIED may be brought in conjunction with a
discrimination claim under Louisiana law, however all of the elements of IIED must be
satisfied. The elements consist of: (1) Defendant’s conduct was so extreme in degree and
character that it went beyond all bounds of decency and was utterly intolerable in a civilized
community; (2) that such conduct caused severe emotional distress; and (3) that Defendant
intended, by performing the acts complained of, to inflict severe emotional distress upon
Plaintiff or that Defendant knew that such severe distress would be certain or substantially
certain to result from the conduct. See White v. Monsanto Company, 585 So. 2d 1205,
1209 (La. 1991).
In order to overcome the Motion to Dismiss, Jenkins must have plead factual
allegations as to the IIED that when assumed to be true raise a right to relief above the
speculative level. Jenkins’ Second Amended Complaint makes no reference to any severe
emotional distress that she allegedly suffered. In taking the Compliant as a whole, there
are no facts plead that, taken as true, meet the pleading requirements under the Iqbal
standard. Merely stating that LRS is liable to Jenkins for “emotional distress, mental
anguish, humiliation, reputation injury” is not sufficient for an IIED claim to survive a Rule
12(b)(6) challenge.
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CONCLUSION
Based on the foregoing analysis, LWC’s Motions to Dismiss (Record Document 67)
is GRANTED and all of Jenkins’ claims are DISMISSED.
A Judgment consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 19th day of August, 2016.

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