The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KATHERINE MUSLOW AND CIVIL ACTION
MEREDITH CUNNINGHAM
VERSUS NO. 19-11793
BOARD OF SUPERVISORS OF LOUISIANA
STATE UNIVERSITY AND AGRICULTURAL SECTION M (2)
AND MECHANICAL COLLEGE, THOMAS
SKINNER, LARRY HOLLIER, AND JON
HARMAN
ORDER & REASONS
Before the Court is a motion to dismiss plaintiffs’ second supplemental and amended
complaint, filed by defendant Winston DeCuir.1 Plaintiffs Katherine Muslow and Meredith
Cunningham (collectively, “Plaintiffs”) oppose the motion.2 DeCuir replies in support of his
motion.3 Having considered the parties’ memoranda, the record, and the applicable law, the Court
issues this Order & Reasons granting DeCuir’s motion.
I. BACKGROUND
This case arises out of an employment dispute. Plaintiffs were formerly employed by the
Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (the
“LSU Board”) as attorneys. The LSU Board oversees and manages LSU institutions across
Louisiana, including its campuses in Baton Rouge (“LSU (Baton Rouge)”) and the LSU Health
Sciences Center in New Orleans (“LSU (New Orleans)”).4 Until January 2020, defendant Thomas
1 R. Doc. 82.
2 R. Doc. 87.
3 R. Doc. 90.
4 R. Doc. 50 at 2-3.
Skinner was Vice President of Legal Affairs and General Counsel at LSU (Baton Rouge).5 DeCuir
is Skinner’s successor.6 Defendant Carlton “Trey” Jones, III, is Deputy General Counsel at LSU
(Baton Rouge).7 Defendant Larry Hollier is Chancellor, and defendant Jon Harman Vice
Chancellor, Administration and Finance at LSU (New Orleans).8 Until mid-2019, Muslow was
“General Counsel” to LSU (New Orleans) and reported directly to Hollier.9 Before her
employment at LSU (New Orleans), she served as its outside counsel. Likewise, until summer
2019, Cunningham was employed as a staff attorney at LSU (New Orleans) and reported to
Muslow.10 Plaintiffs allege that defendants engaged in various acts of gender discrimination and
retaliation, including the termination of their employment at LSU.11
When commencing their suit on July 22, 2019, Plaintiffs named as defendants the LSU
Board, Skinner, Hollier, and Harman (the “Original Defendants”).12 In response to a motion to
dismiss filed by the Original Defendants,13 Plaintiffs amended their complaint.14 On April 14,
2020, acting on the Original Defendants’ partial motion to dismiss the amended complaint,15 the
Court granted Plaintiffs leave to further amend their complaint.16 On April 29, 2020, Plaintiffs
filed a second supplemental and amended complaint, adding Jones and DeCuir as defendants.17
DeCuir is explicitly named only in his official capacity and only for purposes of injunctive relief.18
5 Id. at 3.
6 Id. at 4.
7 Id.
8 Id.
9 Id. at 5, 31.
10 Id. at 5, 29.
11 See id. at 5-36. For a discussion of the pertinent facts as alleged in the second amended complaint, see R.
Doc. 84 at 1-9.
12 R. Doc. 1.
13 R. Doc. 13.
14 R. Doc. 31. Accordingly, the Court dismissed the first motion to dismiss as moot. R. Doc. 32.
15 R. Doc. 35.
16 See R. Doc. 45 at 52-53.
17 See R. Doc. 50.
18 Id. at 4.
In the second amended complaint, which is the operative complaint for purposes of this
motion, Plaintiffs claim: (1) gender discrimination, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), against the LSU Board; (2) retaliation, in
violation of Title VII, against the LSU Board; (3) gender discrimination, in violation of the Equal
Pay Act, 29 U.S.C. §§ 201, et seq. (“EPA”), against the LSU Board, Hollier, Harman, and Skinner;
(4) retaliation, in violation of the EPA, against the LSU Board, Hollier, Skinner, and Jones; (5)
gender discrimination, in violation of the Fourteenth Amendment to the U.S. Constitution,
pursuant to 42 U.S.C. § 1983, against Harman, Hollier, and Skinner; and (6) retaliation, in
violation of the First Amendment to the U.S. Constitution, pursuant to § 1983, against Hollier and
Skinner.19 As relief, Plaintiffs seek (1) a declaratory judgment that the acts and practices
complained of are in violation of federal law; (2) a permanent injunction preventing defendants
from engaging in any further unlawful conduct or practices; (3) prospective injunctive relief in the
form of reinstatement to their former positions; (4) reinstatement to their former positions or front
pay in lieu thereof; (5) lost wages, including back pay, front pay, and lost fringe benefits; (6)
liquidated damages under the EPA; (7) compensatory damages; (8) punitive damages against
Harman, Hollier, Skinner, and Jones in their individual capacities; (9) attorney’s fees, expenses,
and costs; (10) prejudgment and postjudgment interest; and (11) any other legal and equitable relief
as the Court deems just and proper.20
On August 4, 2020, the Court dismissed with prejudice and struck front pay in lieu of
reinstatement as available relief for Plaintiffs’ § 1983 official-capacity claims, and to the extent
they were re-urged, dismissed with prejudice and struck Plaintiffs’ requests for declaratory
19 Id. at 36-42.
20 Id. at 42-43.
judgment and permanent injunction as retrospective relief.21 The Court also dismissed with
prejudice Plaintiffs’ § 1983 official-capacity claims against Harman; § 1983 equal-protection
discrimination claim against Skinner in his individual capacity; § 1983 First Amendment
retaliation claims against Hollier and Skinner in their individual capacities; and punitive damages
as an available remedy against Skinner in his individual capacity. Additionally, the Court
substituted DeCuir in place of Skinner in his official capacity for all such remaining claims.22 On
August 4, 2020, the Court also dismissed with prejudice any claim against Jones in his official
capacity, or for injunctive relief or punitive damages, under the EPA.23
II. PENDING MOTION
DeCuir moves to dismiss Plaintiffs’ official-capacity claims against him.24 DeCuir argues
that any EPA official-capacity claims against him are duplicative of the same claims against the
LSU Board.25 DeCuir also argues that dismissal of the § 1983 individual-capacity claims against
Skinner warrants dismissal with prejudice of the related § 1983 official-capacity claims against
him.26 DeCuir maintains that, alternatively, Plaintiffs’ § 1983 claims for injunctive relief against
him are moot because there are no allegations regarding Skinner’s conduct that are applicable to
him, and no allegations that he will continue any of the alleged discriminatory or retaliatory
practices of his predecessor, Skinner.27
In opposition, Plaintiffs argue that their claims against DeCuir are not moot because “he is
21 R. Doc. 84 at 63. Plaintiffs’ requests for declaratory judgment and permanent injunction remain available
as prospective relief, coupled with reinstatement, only. See id. at 11 n.65; R. Doc. 86 at 3-5.
22 R. Doc. 84 at 63.
23 R. Doc. 85 at 9.
24 R. Doc. 82.
25 R. Doc. 82-1 at 6-8.
26 Id. at 8.
27 Id. at 8-11. DeCuir also argues that simultaneous official-capacity claims against him and against Skinner
are duplicative, id. at 5-6, but in reply, acknowledges that this issue was addressed by the Court in its August 4, 2020
Order & Reasons considering the Original Defendants’ partial motion to dismiss the second amended complaint. R.
Doc. 90 at 1-2 (citing R. Doc. 84 at 24 & n.105, 63).
perpetuating” an “ongoing wrong by not reinstating plaintiffs to their former employment.”28 They
maintain that “by continuing to deny plaintiffs’ request for reinstatement, DeCuir necessarily is
perpetuating the previous wrongful acts of Skinner (and his co-defendants).”29
In reply, DeCuir observes that Plaintiffs do not address his point that simultaneous EPA
claims against the LSU Board and against him are duplicative, noting that, in response to a similar
argument made by Jones in his motion to dismiss, the Court dismissed any claim under the EPA
against Jones for retaliation, injunctive relief, or punitive damages.30 In response to Plaintiffs,
DeCuir asserts that reinstatement as a form of prospective injunctive relief is distinguishable from
a factual allegation that Plaintiffs have sought and were denied rehiring.31 He maintains that there
are no allegations that Plaintiffs sought to be rehired and were denied positions, and reiterates that
there are no allegations that he is continuing or intends to continue any of Skinner’s alleged
conduct.32
III. LAW & ANALYSIS
A. Legal Standards
1. Rule 12(b)(1) standard
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a party to challenge a court’s
subject-matter jurisdiction. “[A] claim is ‘properly dismissed for lack of subject-matter
jurisdiction when the court lacks the statutory authority or constitutional power to adjudicate’ the
claim.” Griener v. United States, 900 F.3d 700, 703 (5th Cir. 2018) (quoting In re FEMA Trailer
Formaldehyde Prod. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012)). The party asserting
28 R. Doc. 87 at 3.
29 Id. at 4.
30 R. Doc. 90 at 2-3.
31 Id. at 3-4.
32 Id. at 4-7.
jurisdiction bears the burden of proving that subject-matter jurisdiction exists. Id. “Lack of subject
matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001). “A motion to dismiss for lack of subject-matter
jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of
facts in support of his claims entitling him to relief.” Sureshot Golf Ventures, Inc. v. Topgolf Int’l,
Inc., 754 F. App’x 235, 235 (5th Cir. 2018) (citing Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661,
663 (5th Cir. 2007)).
Article III of the Constitution of the United States specifies that a federal court’s “power
extends only to ‘Cases’ and ‘Controversies.’” Spokeo, Inc. v. Robins, 578 U.S. __, 136 S. Ct.
1540, 1547 (2016). “A justiciable Article III controversy requires the party instituting the action
to have standing and the issue presented to the court to be ripe.” Teva Pharm. USA, Inc. v. Novartis
Pharm. Corp., 482 F.3d 1330, 1337 (Fed. Cir. 2007) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992)). “Standing to sue is a doctrine rooted in the traditional understanding of a
case or controversy,” which developed in the jurisprudence “to ensure that federal courts do not
exceed their authority as it has been traditionally understood.” Spokeo, 136 S. Ct. at 1547 (citation
omitted). The standing “doctrine limits the category of litigants empowered to maintain a lawsuit
in federal court to seek redress for a legal wrong.” Id. (citations omitted). A plaintiff must
establish standing as to each claim asserted. Town of Chester v. Laroe Estates, Inc., 581 U.S. __,
137 S. Ct. 1645, 1650 (2017). Constitutional standing is an element of subject-matter jurisdiction
that may be challenged under Rule 12(b)(1). Moore v. Bryant, 853 F.3d 245, 248 n.2 (5th Cir.
2017).
The “‘irreducible constitutional minimum’ of standing consists of three elements.” Spokeo,
136 S. Ct. at 1547 (quoting Lujan, 504 U.S. at 560). The plaintiff must demonstrate that it has “(1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan, 504 at
560–61; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000)). An
injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical.” Webb v. City of Dall., 314 F.3d 787,
791 (5th Cir. 2002).
2. Rule 12(b)(6) standard
The Federal Rules of Civil Procedure require a complaint to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule
8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the claim must
“‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.’”
Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading does
not comply with Rule 8 if it offers “labels and conclusions,” “a formulaic recitation of the elements
of a cause of action,” or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57).
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). A claim is plausible on the face of the complaint “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). Plausibility does not equate
to probability, but rather “it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557). Thus, if the facts
pleaded in the complaint “do not permit the court to infer more than a mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court employs
the two-pronged approach utilized in Twombly. The court “can choose to begin by identifying
pleadings that, because they are no more than conclusions [unsupported by factual allegations],
are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. However, “[w]hen there are
well-pleaded factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id. “[The] task, then, is to determine whether
the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff’s
likelihood of success.” Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 385 (5th
Cir. 2017) (quoting Doe ex rel. Magee v. Covington Cty. Sch. Dist., 675 F.3d 849, 854 (5th Cir.
2012) (internal quotation marks and citation omitted)). Motions to dismiss are disfavored and
rarely granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State
Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).
A court’s review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any
documents attached to the complaint, and any documents attached to the motion to dismiss that
are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). A court may also take judicial notice of certain
matters, including public records and government websites. Dorsey v. Portfolio Equities, Inc., 540
F.3d 333, 338 (5th Cir. 2007); see also Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th
Cir. 2005). Thus, in weighing a Rule 12(b)(6) motion, district courts primarily look to the
allegations found in the complaint, but courts may also consider “documents incorporated into the
complaint by reference or integral to the claim, items subject to judicial notice, matters of public
record, orders, items appearing in the record of the case, and exhibits attached to the complaint
whose authenticity is unquestioned.” Meyers v. Textron, Inc., 540 F. App’x 408, 409 (5th Cir.
2013) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
B. Analysis
First, concerning Decuir’s request to dismiss any EPA claims asserted by Plaintiffs against
him in his official capacity or for injunctive relief or punitive damages, to which Plaintiffs present
no opposition, the Court dismisses any such claims.33
Turning to the § 1983 official-capacity claims against DeCuir, the Court also dismisses
these claims. Merely because the Court dismissed the § 1983 individual-capacity claims against
Skinner does not mean that the related § 1983 official-capacity claims against his successor must
also be dismissed, as DeCuir argues without providing any legal authority.34 See, e.g., Tenison v.
Byrd, 2018 WL 845651, at *4-6 (W.D. Okla. Jan. 18, 2018) (dismissing § 1983 individual-capacity
33 In response to a similar argument presented by Jones in his motion to dismiss, Plaintiffs stated that they
did not sue Jones in his official capacity under the EPA nor did they seek injunctive relief or punitive damages under
the EPA against him, remedies which they acknowledged were unavailable under this statute. See R. Doc. 69 at 5.
34 See R. Doc. 82-1 at 8.
claims against defendants against whom there were no allegations of personal participation in the
alleged constitutional violation, but declining to dismiss the related § 1983 official-capacity claims
against the same defendants because a prison policy allegedly played a part in the constitutional
violation), adopted, 2018 WL 846046 (W.D. Okla. Feb. 12, 2018).
Official-capacity suits “generally represent only another way of pleading an action against
an entity of which an officer is an agent.” Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
658, 690, n.55 (1978). Suits against state officials in their official capacity therefore should be
treated as suits against the state. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Because the real
party in interest in an official-capacity suit is the governmental entity and not the named official,
“the entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Id.
(citations omitted). Thus, unless “an official’s actions reflect an institutional policy that could be
assumed to persist under that official’s successor,” a suit against the official’s successor is moot
and must be dismissed for lack of subject-matter jurisdiction. Hoffman v. Jacobi, 2014 WL
5323952, at *3 (S.D. Ind. Oct. 17, 2014) (citations omitted); see also ACLU of Miss., Inc. v. Finch,
638 F.2d 1336, 1345 (5th Cir. 1981) (“[A] court may not exercise its equitable discretion to grant
prospective injunctive relief against the successors without a strong factual basis apart from the
mere allegations of the complaint for concluding that they will continue the illegal practices of
their predecessors.”) (citing Mayor of Phila. v. Educ. Equality League, 415 U.S. 605, 622-23
(1974), and Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 588-89 (1961)).
“Even if the practices have presently ceased,” however, “the case will still not be moot unless the
defendants can demonstrate that ‘there is no reasonable expectation that the wrong will be
repeated.’” Finch, 638 F.3d at 1346 (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633
(1953)) (internal citation omitted).
In analyzing Plaintiffs’ § 1983 First Amendment retaliation claims against Skinner and
Hollier in their individual capacities, the Court found that none of the speech allegedly made by
Plaintiffs is protected by the First Amendment.35 Even if their speech had been protected and
Plaintiffs had otherwise properly alleged a First Amendment claim against Skinner in his
individual capacity, Plaintiffs do not allege the existence of a retaliatory policy or custom that
could be continued by DeCuir; rather, their allegations of retaliatory conduct are personal to
Skinner (and Hollier). See Lewis v. State of Del. Dep’t of Pub. Instruction, 986 F. Supp. 848, 854
(D. Del. 1997) (dismissing official-capacity claim against successor because the injunctive relief
sought against the predecessor was “personal to actions or inactions on the part of [the
predecessor]” and there was no allegation that it was the policy of the department in question to
follow the intentional practices alleged, or that the successor has, or will, continue the alleged
unlawful acts). Therefore, the Court lacks subject-matter jurisdiction over Plaintiffs’ § 1983 First
Amendment retaliation claim against DeCuir in his official capacity.
As to the equal-protection discrimination claim, Plaintiffs’ allegations center around
allegedly disparate treatment in compensation and discriminatory practices at LSU (New
Orleans).36 But DeCuir is General Counsel at LSU (Baton Rouge); he is not an official at LSU
(New Orleans). In dismissing Plaintiffs’ equal-protection claim against Skinner in his individual
capacity, the Court reasoned that Plaintiffs alleged that they came to Skinner (who as General
Counsel at LSU (Baton Rouge) headed the Office of General Counsel, where Plaintiffs’ positions
were being consolidated) to complain about the allegedly discriminatory harm, not that Skinner
himself caused it.37 Plaintiffs simply do not allege that the General Counsel or other officials at
35 See R. Doc. 84 at 35-62.
36 R. Doc. 50 at 6-24, 35-36.
37 R. Doc. 84 at 34.
LSU (Baton Rouge) set or influenced their salaries, or otherwise discriminated against them.
Accordingly, there is no allegation of a discriminatory policy or custom at LSU (Baton Rouge), or
one implemented by the Office of General Counsel at LSU (Baton Rouge), and thus, there can be
no showing that DeCuir would continue any such discriminatory policy or custom were Plaintiffs
to be reinstated.38 Nor is there any allegation that DeCuir would repeat the discriminatory harm
which Plaintiffs allege they faced at LSU (New Orleans), were Plaintiffs to be reinstated to
positions now at LSU (Baton Rouge). This claim is dismissed for lack of subject-matter
jurisdiction.
IV. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that DeCuir’s motion to dismiss Plaintiffs’ second amended complaint
(R. Doc. 82) is GRANTED.39
New Orleans, Louisiana, this 17th day of August, 2020.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
38 Moreover, as DeCuir asserts, he cannot possibly be continuing an alleged constitutional violation by
continuing to deny Plaintiffs reinstatement when there is no allegation that they have been denied reinstatement.
39 While DeCuir was substituted in place of Skinner as to any official-capacity claims asserted against Skinner
in the Court’s August 4, 2020 Order & Reasons considering the Original Defendants’ partial motion to dismiss the
second amended complaint, see R. Doc. 84 at 23 & 64, the Court addresses the substance of these claims here, and
now dismisses DeCuir as a defendant in this matter completely.