Bridges v. Brown et al

Filing 18

Memorandum Opinion and Order granting in part, denying in part 3 MOTION to Dismiss . The claims against JSU are dismissed; claims against Drs. Watkins and Brown dismissed as to their official capacities. Plaintiff is granted until 2/23 /17 to file a motion to amend as set forth herein. Defendants have 14 days to respond, with plaintiff's rebuttal due within 7 days. The defendants' motion to dismiss the individual capacity claims against Drs. Watkins and brown are held in abeyance. Signed by District Judge Tom S. Lee on 2/10/17 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MAY FRANCES BRIDGES
VS.

PLAINTIFF
CIVIL ACTION NO. 3:16CV760TSL-RHW

DR. WALTER BROWN, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY; DR. DANIEL WATKINS,
IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
AND JACKSON STATE UNIVERSITY

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff May Frances Bridges, an employee of defendant
Jackson State University (JSU), filed the present action under 42
U.S.C. § 1983 alleging that in retaliation for her complaints of
sex discrimination, defendants JSU and Drs. Walter Brown and
Daniel Watkins, Dean of the College of Education and Human
Development and Executive Director of the Executive Ph.D. Program,
respectively, violated her First Amendment rights by demoting her
from Assistant Director of the Executive Ph.D. Program to
Enrollment and Recruitment Manager.

Defendants have moved to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
contending that (1) plaintiff’s claims against JSU and its
official-capacity employees are barred by the Eleventh Amendment;
(2) plaintiff cannot state a claim for First Amendment retaliation
because she cannot establish an adverse employment action; and

(3) the individual defendants are entitled to qualified immunity.1
Plaintiff has filed a response to the motion.

Therein she

offers no opposition to defendants’ argument for dismissal of JSU
and the official-capacity claims against Drs. Brown and Watkins on
Eleventh Amendment immunity grounds; and, since defendants’
position as to their Eleventh Amendment immunity is clearly
meritorious, the court will grant the motion to dismiss as to the
claims against JSU and against Drs. Brown and Watkins in their
official capacities.

See Briggs v. Mississippi, 331 F.3d 499, 503

(5th Cir. 2003) (stating that “the Eleventh Amendment bars suit
against a state or ‘state entity’ ... and section 1983 does not
override the Eleventh Amendment”) (quoting Voisin's Oyster House,
Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986)); see also Dear
v. Jackson State Univ., No. CIVA 307CV407-WHBLRA, 2008 WL 4225766,
at *3 (S.D. Miss. Sept. 10, 2008) (holding that since JSU is an
arm of the state, the plaintiff’s proposed First Amendment/Section
1983 claim against JSU was barred by the Eleventh Amendment).2

1

Defendants’ qualified immunity argument is also based on
defendants’ claim that plaintiff has not stated a claim for
retaliation.
2

There is an exception under Ex parte Young, 209 U.S.
123, 28 S. Ct. 441, 52 L. Ed. 714 (1908)), for official-capacity
claims against state officials seeking prospective injunctive
relief based on federal constitutional violations. However,
plaintiff has asserted no such claim in this case.
2

Defendants contend they are entitled to dismissal of the
remaining individual-capacity claims against Drs. Brown and
Watkins since plaintiff has failed to allege an actionable claim
for First Amendment retaliation.
“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 Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

That is, “a

complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed.
2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955).
A claim has facial plausibility “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
(citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

Id.

“The

plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted unlawfully.”

Id.

A pleading need not contain detailed

factual allegations, but must set forth more than “labels and

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conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”

Twombly, 550 U.S. at 555, 127 S. Ct. 1955

(citation omitted).
In the case at bar, defendants note that in order to state a
claim for retaliation in violation of the First Amendment,
plaintiff must allege facts which demonstrate that she suffered an
“adverse employment action.”

See Kinney v. Weaver, 367 F.3d 337,

356 (5th Cir. 2004) (en banc) (holding that to make a claim under
§ 1983 for First Amendment retaliation, a plaintiff must establish
that she suffered an adverse employment decision).

Defendants

acknowledge that a demotion would constitute an adverse employment
action.
[The Fifth Circuit] has clearly established that a
retaliatory, demotion-like transfer may constitute an
adverse employment action under 42 U.S.C. § 1983. See,
e.g., Serna v. City of San Antonio, 244 F.3d 479, 483
(5th Cir. 2001); Hunt v. Rapides Healthcare Sys., LLC,
277 F.3d 757, 770 (5th Cir. 2001) (“A job transfer may
qualify as an ‘adverse employment action’ for the
purpose of a First Amendment retaliation claim under 42
U.S.C. § 1983, if the change makes the job ‘objectively
worse.’”); Breaux v. City of Garland, 205 F.3d 150, 157
(5th Cir. 2000) (“Transfers can constitute adverse
employment actions if they are sufficiently punitive ...
or if the new job is markedly less prestigious and less
interesting than the old one.” (citations omitted));
Click [v. Copeland, 970 F.2d 106, 110-11 (5th Cir.
1992)]. A transfer can be adverse within the meaning of
§ 1983 “even without an accompanying cut in pay or other
tangible benefits” if the transfer is objectively
“equivalent to” one of the commonly accepted adverse
actions (e.g., discharges, demotions, or reprimands).
Serna, 244 F.3d at 483 (summarizing the then-current
state of the law regarding transfers as “adverse
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employment actions”). For example, where two plaintiffs
ran for sheriff against the defendant-incumbent, failed
to unseat the incumbent sheriff, and were subsequently
transferred by that sheriff from law enforcement
positions to jail guards, we held that the jail-duty
transfers were “demotion-like” and, thus, adverse
employment actions because the new jobs were less
interesting, less prestigious, and provide less
opportunity for promotion. See Click, 970 F.2d at 10911.
Burnside v. Kaelin, 773 F.3d 624, 627 (5th Cir. 2014).

Defendants

also acknowledge that plaintiff has alleged that Drs. Brown and
Watkins retaliated against her “by demoting her to a position with
a less distinguished title and a position that carried less job
responsibilities.” (Emphasis added).3

However, defendants note

that prior to filing this lawsuit, plaintiff filed suit against
them under Title VII for alleged discrimination and retaliation
relating to this same alleged “demotion” and that she attached to
her complaint in that action a copy of a verified EEOC charge in
which she explicitly stated that when Dr. Brown changed her job
title from Assistant Director of the Executive Ph.D. Program to

3

The court notes that plaintiff’s complaint recites that
her new job title placed her on a new salary scale classification,
but she does not allege that the new classification affected the
conditions of her employment in any way. Defendants argued in
their motion that in the absence of an allegation that the new
salary scale affected her employment in some way, the mere
allegation that she was on a new salary scale was irrelevant.
Plaintiff did not allege in her complaint, or argue in response to
the motion, that the fact of being on a new salary scale was or
contributed to any adverse employment action. The court thus
considers that plaintiff has conceded this point.
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Enrollment and Recruitment Manager, her “wage, work hours and
duties remained the same.”

Defendants assert that this prior

sworn admission by plaintiff forecloses any contrary allegation or
finding in this cause that her job duties changed or that she had
“less job responsibilities.”

See Associated Builders, Inc. v.

Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (“Conclusory
allegations and unwarranted deductions of fact are not admitted as
true especially when such conclusions are contradicted by facts
disclosed by a document appended to the complaint.”) (quoted in
Hollingshead v. Aetna Health Inc., 589 F. App'x 732, 737 (5th Cir.
2014)).

They contend, moreover, that plaintiff cannot state a

cognizable claim based merely on her subjective perception of her
new job title as “less distinguished.”

Defendants thus conclude

that plaintiff’s complaint does not state a viable claim for First
Amendment retaliation.
In response to defendants’ motion, plaintiff acknowledges
that she stated in her EEOC charge of discrimination that her
wage, work hours and duties remained the same after her job title
changed.

However, she offers as exhibits the job descriptions for

the positions of Assistant Director of the Executive Ph.D. Program
and Enrollment and Recruitment Manager and, pointing to various
differences in the job descriptions for the two positions, she
argues that these job descriptions both “belie[] the statement

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[she] made in her EEOC charge” and tend to show that the position
of Enrollment and Recruitment Manager is objectively worse than
her former position.

She argues that in view of this evidence,

the court should find that she has sufficiently alleged a First
Amendment retaliation claim.

However, she also states that if the

court finds she has failed to sufficiently allege a First
Amendment retaliation claim, it should “allow [her] to amend her
complaint to sufficiently plead a First Amendment retaliation
claim.”
For their part, defendants argue in rebuttal that unless the
court were to convert the present Rule 12(b)(6) motion to a
summary judgment motion – which they contend should not be done –
then the court may not properly consider the extraneous evidence
offered by plaintiff.

They argue, though, that even if the court

were to treat this as a summary judgment motion and consider the
job descriptions offered by plaintiff, the court still ought to
dismiss the complaint since plaintiff has neither alleged nor
attempted to prove that the position of Enrollment and Recruitment
Manager at JSU was objectively worse or less desirable than the
position of Assistant Director of the Executive Ph.D. Program.
this vein, they note that the job descriptions offered by
plaintiff include the following caveat:
The above statements are intended to describe the
general nature and level of the work being performed by
7

In

people assigned to this position. This is not an
exhaustive list of all duties and responsibilities.
Jackson State University’s management reserves the right
to amend and change responsibilities to meet business
and organizational needs as necessary.
Thus, according to defendants, the job descriptions themselves do
not establish, or tend to establish, that the duties of
plaintiff’s current position are any different, much less
objectively worse or less desirable than those of her former
position.
In the court’s opinion, particularly in light of her prior
sworn statement that her pay, hours and job duties “remained the
same” after her job title changed, plaintiff’s allegation that her
new position is “less prestigious” or should be viewed as a
demotion may fairly be characterized as conclusory.

Moreover, as

defendants note, the job descriptions, even if properly before the
court, would not aid plaintiff’s position, since there is nothing
in them to indicate that the job, as performed by plaintiff or as
JSU required it to be performed, entailed any lesser, or less
important job duties or responsibilities than plaintiff’s former
position.

The court thus concludes that plaintiff has not stated

a cognizable claim.

The court recognizes, however, that plaintiff

has asked for the opportunity to amend to sufficiently state a
claim.

It is not apparent to the court that plaintiff can state a

viable claim, even if allowed to amend; plaintiff has not

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identified the substance of any potential amendment.

Thus, the

court is not inclined to hold at this time that she should be
allowed to amend.

What the court will do, however, is hold the

present motion in abeyance so as to give her the opportunity to
file a motion to amend, along with a proposed amended complaint.
Such motion should address the alleged deficiencies noted in
defendants’ motion.4
Based on the foregoing, it is ordered that defendants’ motion
to dismiss is granted as to the claims against JSU and against
Drs. Watkins and Brown in their official capacities.

It is

further ordered that plaintiff shall have until February 23, 2017
to file a motion to amend.

Defendants will have fourteen days to

respond to the motion, and plaintiff will then have seven days for
any rebuttal.

In the meantime, defendants’ motion to dismiss the

individual capacity claims against Drs. Watkins and Brown will be
held in abeyance.
SO ORDERED this 10th day of February, 2016.

/s/ Tom S. Lee

4

Plaintiff acknowledges in her response that her current
position is inconsistent with her sworn statement to the EEOC but
she makes no effort to address defendant’s argument that the
alleged admission in her EEOC charge forecloses her from taking a
contrary position in this lawsuit. Should she choose to pursue
this litigation, her motion to amend should address this issue,
along with all other alleged deficiencies noted in defendants’
motion and rebuttal.
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UNITED STATES DISTRICT JUDGE

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