Harris v. Louisiana Office of Juvenile Justice

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NAKIA HARRIS CIVIL ACTION

VERSUS NO. 18-13356

LOUISIANA OFFICE OF JUVENILE SECTION “R” (1)

JUSTICE

ORDER AND REASONS

Before the Court are motions to dismiss by defendants (1) the Office of

Juvenile Justice of the State of Louisiana, and (2) the Louisiana Department

of Public Safety and Corrections.1 The Court grants the Office of Juvenile

Justice’s motion because it is not an entity that can be sued. The Court grants

the motion the Department of Public Safety and Corrections’ motion because

it is an arm of the state, and plaintiff’s federal claims against it are barred.

I. BACKGROUND

This case arises out of an employment dispute. Plaintiff Nakia Harris

is a Juvenile Probation and Parole Officer in the Louisiana Office of Juvenile

Justice, which is an administrative office within the Louisiana Department

of Public Safety and Corrections.2 Plaintiff alleges that she is the primary

1 R. Doc. 6; R. Doc. 14.

2 R. Doc. 12 at 1 ¶ 4.

caregiver for her disabled daughter, and that she must regularly take her

daughter to medical appointments for treatment of cerebral palsy.3

According to plaintiff, her supervisor allowed her to work a flexible schedule

from 6:30 a.m. to 3:00 p.m. from August 2012 to September 2017, so that

she could take her daughter to her appointments in the afternoon.4 But,

beginning on September 15, 2017, Orleans Parish Drug Court, which plaintiff

had to attend as part of her job, was reset to begin at 2:00 p.m. instead of

12:00 p.m.5 The later start time meant that court proceedings regularly

continued after 3:00 p.m., allegedly preventing plaintiff from leaving in time

to take her daughter to her appointments.6

Plaintiff states that she asked to be reassigned so that she would not

have to attend the Drug Court proceedings.7 Plaintiff allegedly received

permission from Judge Cook-Calvin to leave the Drug Court proceedings at

3:00 p.m., or, alternatively to have a different probation officer substitute for

her.8 Plaintiff alleges that there were other qualified probation officers who

would have been available to replace her.9 But plaintiff’s supervisor allegedly

3 Id.

4 Id. at 2 ¶¶ 8-9.

5 Id. at 2 ¶ 10.

6 Id. ¶¶ 11-12.

7 Id. ¶ 12.

8 Id. at 3 ¶¶ 13-14.

9 Id. ¶ 15.

denied her request to reassign the Drug Court duties.10 The supervisor did

reassign “extra duties” that the plaintiff had been performing.11

Plaintiff alleges that she then met with the regional manager on

September 11, 2017.12 The next day, plaintiff allegedly filed an official

grievance regarding her supervisor’s refusal to reassign her Drug Court

duties.13 On the same day, plaintiff received a “letter of counseling” stating

that she failed to report for work on August 29, 2017, and that she reported

late on August 30, 2017 without notifying her supervisor.14 Plaintiff alleges

that she was not required to report for work on August 29 because of Tropical

Storm Harvey, and that she did notify her supervisor that she would be late

on August 30.15

Several days after filing her grievance, plaintiff allegedly forwarded the

grievance to the assistant secretary of the Office of Juvenile Justice.16 On

October 10, 2017, plaintiff met with the regional manager and the assistant

secretary.17 Plaintiff alleges that she next filed a request under the Family

10 Id. ¶¶ 18-19.

11 Id. ¶ 20.

12 Id. at 4 ¶¶ 21-22.

13 Id. ¶ 24.

14 Id. ¶¶ 32-37.

15 Id.

16 Id. at 25.

17 Id. ¶ 27.

Medical Leave Act, which was initially approved by the HR liaison and

regional manager, but was rejected two days later by plaintiff’s supervisor.18

Plaintiff alleges that she left her position three months after these events on

February 20, 2018.19

On October 23, 2018, plaintiff filed a petition for damages in Orleans

Parish Civil District Court against the Louisiana Office of Juvenile Justice.20

Plaintiff alleged violations of the Americans with Disabilities Act, retaliation

under Title VII of the Civil Rights Act of 1964, and violations of Louisiana

employment statutes.21 On December 11, 2018, defendant Louisiana Office

of Juvenile Justice removed this case to this Court on the basis of federal

question jurisdiction.22 The Office of Juvenile Justice then filed a motion to

dismiss arguing that it did not have the juridical capacity to be sued under

Federal Rule of Civil Procedure 17(b).23 In response, plaintiff sought and was

granted leave to amend her complaint.24 The amended complaint alleges the

18 Id. at 5-6 ¶ 29, ¶¶ 39-40.

19 Id. at 6 ¶ 41.

20 R. Doc. 1-5.

21 Id.

22 R. Doc. 1.

23 R. Doc. 6.

24 R. Doc. 11.

same facts and claims, but it names the Louisiana Department of Public

Safety and Corrections as a defendant.25

Defendant Louisiana Department of Public Safety and Corrections has

now filed a motion to dismiss on the basis that plaintiff’s claims against it are

barred by sovereign immunity.26 Plaintiff opposes the motion.27

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion, a party must plead “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, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when

the party pleads facts that allow the court to “draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. at 678. A court

must accept all well-pleaded facts as true and must draw all reasonable

inferences in favor of the nonmoving party. See Lormand v. US Unwired,

Inc., 565 F.3d 228, 232 (5th Cir. 2009).

A legally sufficient complaint must establish more than a “sheer

possibility” that the party’s claim is true. Iqbal, 556 U.S. at 678. It need not

25 R. Doc. 12.

26 R. Doc. 14.

27 R. Doc. 18.

contain detailed factual allegations, but it must go beyond labels, legal

conclusions, or formulaic recitations of the elements of a cause of action. Id.

In other words, the face of the complaint must contain enough factual matter

to raise a reasonable expectation that discovery will reveal relevant evidence

of each element of the party’s claim. Lormand, 565 F.3d at 257. The claim

must be dismissed if there are insufficient factual allegations to raise a right

to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is

apparent from the face of the complaint that there is an insuperable bar to

relief, Jones v. Bock, 549 U.S. 199, 215 (2007).

III. DISCUSSION

A. Motion to Dismiss Louisiana Office of Juvenile Justice

Defendant Louisiana Office of Juvenile Justice argues that plaintiff’s

claims against it must be dismissed because it is not a juridical entity that

can be sued.28 Federal Rule of Civil Procedure 17(b)(3) provides that when a

defendant is neither an individual or a corporation, whether the defendant

can be sued is a matter to be determined, “by the law of the state where the

court is located.” Fed. R. Civ. P. 17(b)(3). The Office of Juvenile Justice is

neither an individual nor a corporation—it is an administrative office within

28 R. Doc. 6-1 at 1-3.

the Department of Public Safety and Correction.29 Whether the Office of

Juvenile Justice can be sued is therefore determined by Louisiana law.

In Louisiana, an entity “must qualify as a juridical person” to be

capable of being sued. Dejoie v. Medley, 945 So. 2d 968, 972 (La. App. 2 Cir.

2006). The Louisiana Civil Code defines a juridical person as “an entity to

which the law attributes personality, such as a corporation or partnership.”

La. Civ. Code art. 24. A unit of local government is a juridical person when

it is “separate and distinct from other government entities, [and] when the

organic law grants it the legal capacity to function independently and not just

as the agency or division of another governmental entity.” Roberts v.

Sewerage and Water Board of New Orleans, 634 So. 2d 341, 347 (La. 1994).

The Office of Juvenile Justice is not a juridical person, because it is not a

separate and distinct unit of local government. As already explained, it is

merely an administrative office within the Department of Public Safety and

Corrections.

Plaintiff does not contest that the Office of Juvenile Justice cannot be

sued under Rule 17(b)(3). She instead relies on her amended complaint,

which names the Louisiana Department of Public Safety and Corrections.30

29 See R. Doc. 6-2 at 2.

30 See R. Doc. 10.

Accordingly, defendant Louisiana Office of Juvenile Justice’s motion to

dismiss is granted, and plaintiff’s claims against the Office of Juvenile Justice

are dismissed.

B. Motion to Dismiss Louisiana Department of Public

Safety and Corrections

Defendant Louisiana Department of Public Safety and Corrections

argues that each of plaintiff’s claims against it fails for different reasons.

First, it contends that plaintiff’s ADA claim is barred by sovereign

immunity.31 Second, it argues that plaintiff has failed to plausibly allege the

required elements of her retaliation claim.32 Third, it argues that she does

not have a right of action under the Louisiana employment statute.33 The

Court addresses each claim in turn.

1. ADA claim

“The Eleventh Amendment bars citizens of a state from suing their own

state or another state in federal court unless the state has waived its

sovereign immunity or Congress has expressly abrogated it.” Raj v. La. State

Univ., 714 F.3d 322, 328 (5th Cir. 2013) (internal citations omitted).

Louisiana has explicitly asserted its sovereign immunity by statute. La. R.S.

31 R. Doc. 14-2 at 2-4.

32 Id. at 4.

33 Id. at 4-7.

13:5106(A) (2010) (“No suit against the state or a state agency or political

subdivision shall be instituted in any court other than a Louisiana state

court.”). This immunity extends to certain State agencies as well as the State

itself. Id.; Raj, 714 F.3d at 328. The Department of Public Safety and

Corrections is an arm of the state and is therefore generally immune from

suit. Addison v. McVea, No. 13-5264, 2014 WL 7137303, at *4 (E.D. La. Dec.

15, 2014) (“For Eleventh Amendment purposes, the DOC is considered an

arm of the state because any judgment against it or its subdivisions

necessarily would be paid from state funds.”).

But “a state’s immunity from suit is not absolute.” Union Pac. R. Co.

v. La. Pub. Serv. Comm’n, 662 F.3d 336, 340 (5th Cir. 2011). As already

noted, it may be abrogated by Congress or waived. Raj, 714 F.3d at 328. The

Supreme Court held in Board of Trustees of the University of Alabama v.

Garrett, 531 U.S. 356 (2001), that Congress did not abrogate sovereign

immunity for Title I of the ADA. Id. at 374. To waive sovereign immunity on

a claim, a state must “invoke[] federal-court jurisdiction or . . . make[] a ‘clear

declaration’ that it intends to submit to federal jurisdiction.” Id. (quoting

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S.

666, 675-76 (1999)). In Meyers ex. Rel. Benzing v. Texas, 410 F.3d 236 (5th

Cir. 2005), the Fifth Circuit held that when a state removes a case against it

from state to federal court, it voluntarily invokes federal court jurisdiction

and thus waives its immunity from private suits. Id. at 250. Thus, by

removing this case to federal court, the state has waived its sovereign

immunity and consented to suit by the plaintiff.

A waiver of immunity from suit does not automatically mean that

plaintiff can recover against the Department of Public Safety and

Corrections. The Fifth Circuit explained in Meyers that “a sovereign enjoys

two kinds of immunity that it may choose to waive or retain separately—

immunity from suit and immunity from liability. Id. at 252-53. When a state

invokes federal court jurisdiction by removing a case to federal court, it

waives immunity from suit, but it does not necessarily waive immunity from

liability. “Whether [a state] has retained a separate immunity from liability

is an issue that must be decided according to that state’s law.” Id. at 255.

Thus, the Court looks to Louisiana law to determine whether the state has

retained immunity from liability in ADA actions. The state has retained

immunity if defendant would have immunity against plaintiff’s claims in

state court.34 Pegues v. Bd. of Supervisors of La. State Univ. & Agric. &

Mech. Coll., LSU Sch. of Dentistry & Faculty Dental Practice, No. 18-2407,

2019 WL 1544366, at *4 (E.D. La. Apr. 9, 2019).

34 R. Doc. 12 at 7-10.

“[U]nder its constitution, the State of Louisiana has unambiguously

claimed to the fullest extent its sovereignty within the federal system.” Jones

v. La. Dep’t of Health & Hosps., No. 15-6997, 2016 WL 3198614, at *2 (E.D.

La. June 9, 2016) (citing Holliday v. Bd. of Supervisors of LSU Agric. and

Mech. Coll., 149 So. 3d 227, 229 (La. 2014)). The prevailing view among both

federal and state courts is that Louisiana has not waived its immunity for

Title I ADA claims. Jones, No. 15-6997, 2016 WL 3198614, at *2; Pegues,

No. 18-2407, 2019 WL 1544366, at *4 (“The Louisiana Second Circuit Court

of Appeal has held the State of Louisiana has not waived its sovereign

immunity for claims under Title I of the ADA.”); Reed-Salsberry v. State,

DPSC, 216 So. 3d 226, 230 (La. App. 2 Cir. 2017). The Court therefore finds

that plaintiff’s ADA claim against the Department of Public Safety and

Corrections is barred and must be dismissed.

In addition, this dismissal must be with prejudice under Federal Rule

of Civil Procedure 12(b)(6). When a defendant successfully invokes

sovereign immunity from suit under Federal Rule of Civil Procedure 12(b)(1)

for lack of jurisdiction, the claim must be dismissed without prejudice.

Anderson v. Jackson State Univ., 675 F. App’x 461, 464 (5th Cir. 2017). But

here, the Court has determined that defendant waived its immunity to suit.

The Court therefore may exercise its subject matter jurisdiction over this

case. The Court’s dismissal of plaintiff’s federal claims on the basis of

defendant’s immunity from liability is not jurisdictional and instead

constitutes an adjudication on the merits. See Jones, No. 15-6997, 2016 WL

3198614, at *3 (dismissing ADA claim with prejudice when plaintiff had

waived immunity to suit but not to liability); Cephus v. Texas Health &

Human Servs. Comm’n, 146 F. Supp. 3d 818, 829 (S.D. Tex. 2015) (same);

Garza v. Texas Dep’t of Aging & Disability Servs., No. 686-SS, 2017 WL

4681799, at *3-4 (W.D. Tex. Oct. 17, 2017) (denying motion to dismiss for

lack of subject matter jurisdiction on the basis of waiver but granting motion

for judgment on the pleadings on the basis of immunity from liability). The

Court therefore dismisses plaintiff’s Title I ADA claim with prejudice.

2. Retaliation claim

Plaintiff’s second claim is for retaliation under the Civil Rights Act.

Plaintiff has failed to allege facts that entitle her to relief on this claim. To

state a claim for retaliation, a plaintiff must show: “(1) that [she] engaged in

activity protected by Title VII, (2) that an adverse employment action

occurred, and (3) that a causal link existed between the protected activity and

the adverse action.” Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471

(5th Cir. 2002). Title VII of the Civil Rights Act protects employees from

discrimination on the basis of “race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2. Plaintiff does not allege that defendant discriminated

against her on any of these bases. Instead, she alleges that the state

discriminated against her on the basis of her daughter’s disability.35 She

therefore cannot state a claim for retaliation under Title VII.

The type of retaliatory behavior that plaintiff alleges is properly

addressed via Title V of the ADA. See 42 U.S.C. § 12203 (prohibiting

discrimination for opposing “any act or practice made unlawful by this

chapter”). Multiple courts, including those in this district, have held that

Congress did not abrogate sovereign immunity for Title V of the ADA.36 See

Cancienne v. Bd. of Supervisors for Univ. of Louisiana Sys., No. 18-7934,

2019 WL 1979932, at *4 (E.D. La. May 3, 2019) (“[C]ourts in the Fifth Circuit

have . . . held that the reasoning in Garrett necessarily applies to retaliation

claims brought pursuant to Title V of the ADA that are predicated on

violations of Title I (internal quotation marks omitted)); Worley v.

35 See R. Doc. 12 at 1 ¶ 1.

36 The Supreme Court has held that Congress did not abrogate sovereign

immunity for Title I of the ADA, see Garrett, 531 U.S. at 374, but it did

abrogate sovereign immunity for Title II. United States v. Georgia, 546 U.S.

151, 159, (2006). Most courts that have addressed the issue have held that

Title V is more similar to Title I because, applying the Supreme Court’s

reasoning from its analysis in Garrett, “[t]here is nothing in the ADA’s

legislative findings demonstrating a pattern of discrimination by states

against employees who oppose unlawful employment discrimination against

the disabled.” Demshki v. Monteith, 255 F.3d 986, 989 (9th Cir. 2001).

Louisiana, No. 10-3313, 2012 WL 218992, at *4 (E.D. La. Jan. 25, 2012);

Demshki, 255 F.3d at 988-89.

There is also no reason to find that the state has waived sovereign

immunity for Title V, given that it has explicitly retained the most expansive

sovereign immunity protection available under the law. See Jones, No. 15-

6997, 2016 WL 3198614, at *2. The Louisiana Supreme Court has held that

the state did not waive sovereign immunity for actions under the Family and

Medical Leave Act, a similar federal employment statute. Holliday v. Bd. of

Sup’rs of LSU Agr. & Mech. Coll., 149 So. 3d 227, 229 (La. 2014). The

Louisiana Second Circuit also held that the state has not waived immunity

on ADA claims. Reed-Salsberry, 216 So.3d at 230. Although the plaintiff in

that case brought claims under Title I, the Court did not base its holding on

reasons specific to Title I. Id. (holding that the plaintiff’s ADA claims were

indistinguishable from the FMLA claims that the Supreme Court found were

barred). The Court sees no reason why Title V should be treated differently

than Title I on this issue, especially because plaintiff’s basis for a retaliation

claim under Title V would be underlying violations of Title I.

Thus, even if plaintiff attempted to amend her complaint to correctly

allege her claim, the claim would be barred. Plaintiff cannot recover against

defendant on her retaliation claim.

3. State law claim

Having determined that plaintiff’s federal claims must be dismissed,

the Court declines to exercise supplemental jurisdiction over her remaining

state law claim. See 28 U.S.C. § 1367(c)(3) (“The district court may decline

to exercise supplemental jurisdiction over a claim . . . if . . . the district court

has dismissed all claims over which it has original jurisdiction.”). “When a

court dismisses all federal claims before trial, the general rule is to dismiss

any [supplemental] claims.” Bass v. Parkwood Hosp., 180 F.3d 234, 246

(5th Cir. 1999). Further, “the Supreme Court has counseled that the

dismissal of all federal claims weighs heavily in favor of declining

jurisdiction.” McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998),

overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433

(5th Cir. 2003) (citing United Mine Workers v. Gibbs, 383 U.S. 715 (1966)).

The Court therefore dismisses plaintiff’s remaining state law claim without

prejudice. See Bass, 180 F.3d at 246 (“[T]he dismissal of . . . pendent [state]

claims should expressly be without prejudice so that the plaintiff may refile

his claims in the appropriate state court.”) (emphasis in original). It does not

reach the merits of defendant’s arguments on these claims.

IV. CONCLUSION

For the foregoing reasons, the Court grants defendants’ motions to

dismiss. Plaintiffs federal claims are barred and are DISMISSED WITH

PREJUDICE. Her state law claims are DISMISSED WITHOUT

PREJUDICE.

New Orleans, Louisiana, this _26th__ day of June, 2019.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

16