The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MONICA MITCHELL, ET AL. CIVIL ACTION
v. NO. 19-13298
PARISH OF JEFFERSON, ET AL. SECTION “F”
ORDER AND REASONS
Before the Court is the defendants’ Rule 12(b)(6) motion to
dismiss the plaintiffs’ complaint. For the reasons that follow,
the motion is construed as a motion for partial dismissal of the
complaint and is GRANTED.
Background
Three female fire dispatchers say that a local fire department
discriminated against them on the basis of sex and then retaliated
against them for exposing a male supervisor’s sexual harassment of
female employees. This lawsuit followed.
The plaintiffs in this sex-discrimination litigation are
Monica Mitchell, Melissa Burkett, and Tammy Cavanaugh, veteran
dispatchers for the Jefferson Parish East Bank Consolidated
Special Service Fire Protection Bureau. They work in the Emergency
Communications Division, known as “Fire Alarm.” They do what their
job title suggests: answer emergency calls and direct the response
of fire personnel. Robert Funk leads Fire Alarm and holds the title
of Fire Communications Supervisor. He reports to the Bureau’s
Chief, David Tibbetts.
For years, Funk has allegedly denied female employees the
training and equipment he provides male employees. The plaintiffs
say this discrimination has stunted their professional growth. It
has also placed the public at risk. Firefighters too. For at any
given moment, Fire Alarm’s female dispatchers allegedly lack the
training and equipment they need to do their jobs.
But sex discrimination is just one reason the Bureau is an
allegedly unpleasant workplace——pervasive sexual harassment is
another. For years, the plaintiffs say, Funk has taken female
dispatchers off-premises for extended periods of time, leaving
Fire Alarm inadequately staffed. Funk has also allegedly
“grant[ed] perks” to dispatchers who accept his advances.
After Funk made one particularly “inappropriate and unwanted”
advance, Mitchell and Burkett allegedly complained to then-Chief
Joseph Greco. Funk learned of the complaint and allegedly
retaliated against Mitchell and Burkett in various ways:
“subjecting them to hostile, intimidating language,” including
“misogynistic and racial slurs”; “continuing to deny them
necessary training and resources”; and “selectively enforcing
Bureau policies on mandatory overtime and emergency/sick leave in
a punitive manner.”
Tibbetts succeeded Greco as Fire Chief. Hoping the new chief
would do what his predecessor would not, the plaintiffs told
Tibbetts about Funk’s misconduct and urged him to investigate. He
declined. So, they filed complaints with the Equal Employment
Opportunity Commission. In response, Tibbetts and Funk allegedly
initiated “malicious and baseless disciplinary proceedings”
against Burkett. Threats followed. According to the plaintiffs,
Tibbetts said he would strip Fire Alarm employees of civil service
protections if they “continued to exercise their rights under Title
VII.”
Aiming to secure those rights, the plaintiffs sued Jefferson
Parish, the Bureau, Tibbetts, and Funk in this Court. Each
plaintiff alleges sex-discrimination, retaliation, and hostile-
work-environment claims against Jefferson Parish, the Bureau, and
Tibbetts, in his official capacity. And one plaintiff, Melissa
Burkett, alleges 42 U.S.C. § 1983 First Amendment retaliation
claims against Jefferson Parish and Tibbetts and Funk, in their
individual and official capacities.
Now, the defendants move to dismiss the plaintiffs’ complaint
for failure to state a claim. See FED. R. CIV. P. 12(b)(6). The
motion is not styled a partial motion to dismiss, and the
defendants say they seek an order “dismissing the plaintiffs’
complaint with prejudice.” But the defendants do not address the
plaintiffs’ Title VII and Louisiana Employment Discrimination Law
claims against Jefferson Parish and the Bureau. So, the Court
construes the motion as one for partial dismissal of the
plaintiffs’ complaint.
I.
A complaint must contain a short and plain statement of the
claim showing that the pleader is entitled to relief. FED. R. CIV.
P. 8(a)(2). A party may move for dismissal of a complaint that
fails this requirement. See FED. R. CIV. P. 12(b)(6). Such motions
are rarely granted because they are viewed with disfavor. Leal v.
McHugh, 731 F.3d 405, 410 (5th Cir. 2013) (quoting Turner v.
Pleasant, 663 F.3d 770, 775 (5th Cir. 2011)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.” Thompson v. City of Waco, Tex.,
764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee v.
Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012) (en banc)). Conclusory allegations are not well pleaded
and, consequently, are not accepted as true. See Thompson, 764
F.3d at 502-03 (citing Iqbal, 556 U.S. at 678).
To overcome a Rule 12(b)(6) motion, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). A claim
is facially plausible if it contains “factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“A complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations[.]” Twombly, 550 U.S.
at 555. But it must contain “more than labels and conclusions, and
a formulaic recitation of a cause of action’s elements will not
do.” Id. at 555. Ultimately, the Court’s task is “to determine
whether the plaintiff stated a legally cognizable claim that is
plausible, not to evaluate the plaintiff’s likelihood of success.”
Thompson, 764 F.3d at 503 (citation omitted).
II.
Jefferson Parish, Tibbetts, and Funk contend that Melissa
Burkett fails to state 42 U.S.C. § 1983 First Amendment retaliation
claims against them.
A.
Section 1983 creates a cause of action against a person who
violates another’s constitutional rights while acting under color
of state law. 42 U.S.C. § 1983. Burkett says Jefferson Parish,
Tibbetts, and Funk violated her First Amendment rights by
retaliating against her for reporting sexual harassment and
“dysfunction” within Fire Alarm.
The First Amendment protects the right of a public employee
to speak “as a citizen” on “matters of public concern.” Garcetti
v. Ceballos, 547 U.S. 410, 417 (2006). To decide if that right has
been violated, courts ask a threshold question: Was the employee’s
speech made “pursuant to the employee’s duties or as a citizen on
a matter of public concern?” Cutler v. Stephen F. Austin State
Univ., 767 F.3d 462, 469 (5th Cir. 2014). Whether an employee spoke
as a citizen depends on several factors: “job descriptions, whether
the employee communicated with coworkers or with supervisors,
whether the speech resulted from special knowledge gained as an
employee, and whether the speech was directed internally or
externally.” Johnson v. Halstead, 916 F.3d 410, 422 (5th Cir. 2019)
(citation omitted). If a court’s consideration of these factors
causes it to conclude that the employee spoke as a citizen, the
court must then balance the employee’s speech interest against the
employer’s interest “in promoting the efficiency of the public
service it performs.” Cutler, 767 F.3d at 469 (citation omitted).
Ultimately, to state a First Amendment retaliation claim in
the employment context, a plaintiff must allege four elements: (1)
she suffered an adverse employment action; (2) her speech involved
a matter of public concern; (3) her interest in speaking outweighed
the governmental defendant’s interest in promoting efficiency; and
(4) the protected speech motivated the defendant’s conduct. Kinney
v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (en banc).
Jefferson Parish, Tibbetts, and Funk point to these elements
and submit that Burkett fails to allege two of them: (1) that she
suffered an adverse employment action; and (2) that she engaged in
protected speech. The Court considers each element in turn.
1.
The first element requires Burkett to allege an adverse
employment action. This requirement restricts the range of conduct
actionable under a First Amendment retaliation theory. See Breaux
v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000). Not all
speech-chilling acts qualify. Id. at 157. For example,
“accusations or criticism,” “threats or abusive remarks,” and
“investigations” do not rise to the level of an adverse employment
action. Id. at 157-58. The paradigmatic adverse employment actions
are “discharges, demotions, refusals to hire, refusals to promote,
and reprimands.” Pierce v. Texas Dep’t of Crim. Justice, Inst.
Div., 37 F.3d 1146, 1149 (5th Cir. 1994). A “campaign of
retaliatory harassment” also qualifies, so long as it “rise[s] to
such a level as to constitute a constructive adverse employment
action.” Colson v. Grohman, 174 F.3d 498, 514 (5th Cir. 1999).1
Here, Burkett says the defendants (1) “subjected [her] to
numerous, malicious and baseless disciplinary proceedings”; (2)
“refused [her] reasonable work-related requests for information”;
(3) threatened to remove her “civil service protections”; (4)
“subjected [her] to hostile, intimidating language, and
misogynistic and racial slurs”; and (5) “selectively enforce[d]
Bureau policies on mandatory overtime and emergency/sick leave.”
These acts should qualify as adverse employment actions, Burkett
reasons, because they resemble the “reprimands” that qualify as
adverse employment actions under Fifth Circuit case literature.
The Court disagrees. A formal reprimand2 is an “adverse
employment action” because it “goes several steps beyond a
criticism or accusation and even beyond a mere investigation; it
is punitive in a way that mere criticisms, accusations, and
investigations are not.” Colson, 174 F.3d at 512 n.7. The acts
1 Because Burkett does not invoke the retaliatory-campaign
theory in her opposition papers, the Court does not address whether
she has alleged facts sufficient to show a constructive adverse
employment action. See Colson, 174 F.3d at 514.
2 The Fifth Circuit has on occasion distinguished formal
reprimands from informal ones. See, e.g., Benningfield, 157 F.3d
at 377; Mylett v. City of Corpus Christi, 97 F. App’x 473, 476
(5th Cir. 2004). One opinion suggests that only formal reprimands
are actionable. See Colson, 174 F.3d at 512 & n.7.
Burkett describes are not functionally equivalent. Each act is
either an “abusive remark,” a “threat,” or an “investigation.”
Breaux, 205 F.3d at 157. Because none of those acts amounts to an
adverse employment action, Burkett fails to state a First Amendment
retaliation claim.
2.
Even if Burkett had alleged an adverse employment action,
however, her First Amendment retaliation claim would fail: She has
not alleged facts showing that she engaged in speech protected by
the First Amendment.
A public employee’s speech is protected if she “spoke as a
citizen on a matter of public concern.” Garcetti, 547 U.S. at 418.
The second part of that inquiry is straightforward here: public
safety is a “public concern,” and Burkett spoke on “matter of
public concern” when she allegedly reported “dysfunction” within
Fire Alarm to her supervisors, Funk and Tibbetts. See Wallace v.
Cnty. of Comal, 400 F.3d 284, 289 (5th Cir. 2005). But the inquiry
does not end there; Burkett’s speech is protected only if it was
made “as a citizen.”3 Garcetti, 547 U.S. at 418.
3 The plaintiffs do not address the defendants’ contention
that Burkett was not speaking “as a citizen” because she complained
to her supervisors within the Bureau.
It was not. Burkett’s speech was “directed internally” and
resulted from the “special knowledge” about Bureau operations that
she gained as a Bureau employee. Johnson, 916 F.3d at 422. Hers is
the sort of up-the-command-chain communication that is routinely
denied First Amendment protection. See, e.g., Davis v. McKinney,
518 F.3d 304, 313 n.3 (5th Cir. 2008). Because Burkett was not
“speaking as a citizen” at the time she reported the “dysfunction”
within Fire Alarm to her supervisors, her speech is not protected,
and she fails to state a First Amendment retaliation claim. See
Johnson, 916 F.3d at 423.
* * *
Burkett fails to allege facts showing that she suffered an
adverse employment action or that she engaged in speech protected
by the First Amendment. She thus fails to state a claim.4 The Court
therefore grants the defendants’ motion to dismiss Burkett’s First
Amendment retaliation claims. Because Burkett has not requested
leave to amend her complaint to attempt to state plausible First
Amendment retaliation claims, the Court assumes that she has
4 Qualified immunity supplies an independent ground for
dismissal of Burkett’s individual-capacity First Amendment claims
against Tibbetts and Funk: Burkett has not alleged facts
establishing that either defendant violated a clearly established
right. See Shaw v. Villanueva, 918 F.3d 414, 418-19 (5th Cir.
2019).
pleaded her best case and that amendment would be futile.
Accordingly, these claims are dismissed with prejudice.
III.
Tibbetts and Funk next contend that the plaintiffs fail to
state claims against them under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e-2—2000e-3, and the Louisiana Employment
Discrimination Law, LA. REV. STAT. § 23:332.
A.
Title VII and the Louisiana Employment Discrimination Law
create causes of action against “an employer.” 42 U.S.C. § 2000e-
2(a); LA. REV. STAT. § 23:332(A). Under Title VII, an “employer” is
“a person engaged in an industry affecting commerce who has fifteen
or more employees . . . and any agent of such a person[.]” 42
U.S.C. § 2000e(b). By contrast, the Louisiana Employment
Discrimination Law defines “employer” as a person “receiving
services from an employee and, in return, giving compensation of
any kind to any employee.” LA. REV. STAT. § 23:302(2). But the law
“appl[ies] only to an employer who employs twenty or more
employees[.]” LA. REV. STAT. § 23:302(2).
B.
Invoking these definitions, Tibbetts and Funk say they cannot
have Title VII or Louisiana Employment Discrimination Law
liability because they are individual employees——not
“employer[s].” The Court agrees.5
Tibbetts and Funk are individual employees of Jefferson
Parish. Neither is an “employer” under Title VII or the Louisiana
Employment Discrimination Law. See 42 U.S.C. § 2000e(b); LA. REV.
STAT. 23:302(2). Because they are not “employer[s],” they cannot
have liability under either statute. See 42 U.S.C. § 2000e-2(a);
LA. REV. STAT. § 23:332(A). So, the plaintiffs fail to state Title
VII and Louisiana Employment Discrimination Law claims against
Tibbetts and Funk. The Court therefore grants the defendants’
motion to dismiss these claims with prejudice.
IV.
Finally, the defendants contend that the plaintiffs fail to
state claims for punitive damages under the Louisiana Employment
Discrimination Law, Title VII, and § 1983.6 The Court considers
each statute in turn.
A.
Louisiana law prohibits the recovery of punitive damages
“unless expressly authorized by statute.” Ross v. Conoco, Inc.,
5 As do the plaintiffs. In their opposition papers, they
concede that they cannot state Title VII or Louisiana Employment
Discrimination Law claims against Tibbetts and Funk.
6 The plaintiffs do not oppose dismissal of their punitive
damages claims.
2002-299, p. 14 (La. 10/15/02); 828 So. 2d 546, 555. The relevant
statute here, the Louisiana Employment Discrimination Law,
expressly authorizes some types of damages: “compensatory damages,
back pay, benefits, reinstatement, or if appropriate, front pay,
reasonable attorney fees, and court costs.” LA. REV. STAT. §
23:303(A). But it says nothing of punitive damages. See id. Because
the Louisiana Employment Discrimination Law does not expressly
authorize an award of punitive damages in these circumstances, and
the plaintiffs have not identified another statute that does, the
plaintiffs fail to state a claim for punitive damages under
Louisiana law.
B.
A Title VII plaintiff may recover punitive damages “against
a respondent (other than a government, government agency or
political subdivision)” if she shows that “the respondent engaged
in a discriminatory practice or discriminatory practices with
malice or with reckless indifference to the federally protected
rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1).
The plaintiffs fail to state punitive damages claims under
Title VII against any defendant. Jefferson Parish and the Bureau
are political subdivisions not subject to punitive damages under
§ 1981a(b)(1). So, the plaintiffs cannot state Title VII punitive
damages claims against them. See id.; Oden v. Oktibbeha Cnty.,
Miss., 246 F.3d 458, 465 (5th Cir. 2001). As for Tibbetts and Funk,
the plaintiffs have alleged no specific facts showing that either
acted with “malice or with reckless indifference to the federally
protected rights of an aggrieved individual.” 42 U.S.C. §
1981a(b)(1). Accordingly, any Title VII punitive damages claims
against these defendants fail.
C.
To the extent that the plaintiffs intend to state punitive
damages claims under § 1983, they fail to do so. Consider first
the municipal entities. A § 1983 plaintiff cannot recover punitive
damages against municipal entities, like Jefferson Parish and the
Bureau, unless Congress specifically provides to the contrary.
Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Because
Congress has not expressed a clear intention to permit punitive
damages against municipal entities in the circumstances presented
here, any § 1983 punitive damages claims against Jefferson Parish
and the Bureau fail as a matter of law. See id. The claims against
the individual defendants fare no better. The plaintiffs allege no
specific facts establishing that Tibbetts or Funk engaged in
conduct “motivated by evil intent” or “demonstrat[ing] reckless or
callous indifference to a person’s constitutional rights.”
Williams v. Kaufman Cnty., 352 F.3d 994, 1015 (5th Cir. 2003)
(citation omitted).
Vv.
Accordingly, IT IS ORDERED: that the defendants’ Rule
12 (b) (6) motion to dismiss is construed as a motion for partial
dismissal of the plaintiffs’ complaint and is GRANTED. The
following claims are DISMISSED with prejudice: the plaintiffs’
Title VII and Louisiana Employment Discrimination Law claims
against Tibbetts and Funk; all of Burkett’s § 1983 First Amendment
retaliation claims; and all punitive damages claims. Remaining are
the plaintiffs’ Title VII and Louisiana Employment Discrimination
Law claims against Jefferson Parish and the Bureau.
New Orleans, Louisiana, March 4, 2020
ct
MARTIN]L. C. (FELDMAN
UNITED STAWES DISTRICT JUDGE
15