# Whitener v. St. Charles Parish

> District Court, E.D. Louisiana · September 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10185857

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185857

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RACHEL WHITENER CIVIL ACTION
VERSUS NO. 19-12696
ST. CHARLES PARISH AND SECTION: "B"(1)
CLAYTON FAUCHEUX
ORDER AND REASONS
It is ordered that defendants' opposed motion to dismiss is
GRANTED. Rec. Doc. 12.

Plaintiff Rachel Whitener asserts subject matter
jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §
1343. She alleges that defendants denied her pre-deprivation
due process rights by failing to give her a hearing prior to
terminating her employment.
Plaintiff was hired by the St. Charles Parish Department
of Public Works and Wastewater in 2015. She was a Public
Works Financial Officer, a classified position with the Civil
Service of St. Charles Parish. Plaintiff copied files from the
department’s server on August 23, 2018. Defendants discovered
the files on an unsecured drive on September 10, 2018.

Plaintiff had subsequent conversations with defendants in which
plaintiff was informed she was suspected of copying confidential
files to a public network in contravention of governmental
policies. On September 11, 2018, plaintiff was suspended
pending an investigation. Subsequently on September 19, 2018,
Defendants filed this Rule 12(b)(1) motion to dismiss
alleging lack of subject matter jurisdiction and failure to exhaust
administrative remedies. Rec. Doc. 12. Plaintiff filed a

memorandum in opposition, arguing there is no requirement to
exhaust post-termination remedies prior to filing suit for
deprivation of pre-termination due process rights. Rec. Doc. 13.
Defendant then sought, and was granted, leave to file a reply.
Rec. Doc. 17. Plaintiff submitted a sur-reply memorandum that
will be considered now, after leave to file same was previously
denied. Rec. Docs. 15 & 18.
LAW AND ANALYSIS
Federal court subject matter jurisdiction is granted pursuant
to 28 U.S.C. §§ 1331 and 1332, where § 1331 provides for federal
question jurisdiction and § 1332 provides for diversity of
citizenship jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500,

513, 126 S.Ct. 1235, 1244 (2006). In determining federal question
jurisdiction, the Court looks to see “whether a case ‘arises under
federal law’...” ’. Howery v. Allstate Ins. Co., 243 F.3d 912, 916
(5th Cir. 2001).
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) challenges a federal court's subject matter
jurisdiction. “A case is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Home Builders Ass'n
of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998). “The standard of review applicable to motions to dismiss
under Rule 12(b)(1)is similar to that applicable to motions to

dismiss under Rule 12(b)(6)” except that the Rule 12(b)(1)standard
permits the Court to consider a broader range of materials in
considering its subject matter jurisdiction over the cause(s) in
the suit. Williams v. Wynne, 533 F.3d 360, 364-65 (5th Cir. 2008).
A district court may dismiss for lack of subject matter
jurisdiction on any one of three bases: “(1) the complaint alone;
(2) the complaint supplemented by undisputed facts in the record;
or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Clark v. Tarrant County,
798 F.2d 736, 741 (5th Cir. 1986); Ramming v. United States, 281
F.3d 158, 161 (5th Cir.2001). The plaintiff bears the burden of
proving subject matter jurisdiction by a preponderance of the
evidence. Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748

(5th Cir. 2009) (citing New Orleans & Gulf Coast Ry. Co. v.
Barrois, 533 F.3d 321, 327 (5th Cir. 2008)).
A party may “facially” or “factually” attack the basis of the
Court's subject matter jurisdiction on a 12(b)(1) motion.
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
1980) (citations omitted). When the moving party makes a “facial
attack,” it limits its arguments to the four corners of the
complaint and urges the court “merely to look and see if plaintiff
has sufficiently alleged a basis of subject matter jurisdiction,
[when] ... the allegations in his complaint are taken as true for
purposes of the motion.” Id. When the moving party makes a “factual

attack,” it goes beyond the pleadings and challenges “the existence
of subject matter jurisdiction in fact.” Id.
A Rule 12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction should only be granted if it appears certain that the
plaintiff cannot prove any set of facts in support of his/her
claims entitling them to relief. Wagstaff v. United States Dep't
of Educ., 509 F.3d 661, 663 (5th Cir.2007); In re FEMA Trailer
Formaldehyde Prod. Liab. Litig. (Mississippi Plaintiffs), 668 F.3d
281, 287 (5th Cir. 2012).
The defendant has asserted a factual attack on subject matter
jurisdiction. Rec. Doc. 17 at 5. Plaintiff’s original complaint
and the opposition to this motion to dismiss assert causes of

action for denial of pre-deprivation due process rights in which
plaintiff argues she was denied a hearing prior to termination of
her employment. Rec. Doc. 1 and 13.
Plaintiff acknowledges that this court may consider evidence
submitted in connection with a Rule 12(b)(1) motion to the extent
that it is necessary to determine whether the court has
jurisdiction. Rec. Doc. 15-2. While further acknowledging her
burden to submit facts to establish subject matter jurisdiction in
response to a factual attack upon same, plaintiff argues that the
factual attack on jurisdiction does not entitle defendant to
introduce evidence as to the merits of the case. Id.

We agree that a merit review of the grounds for termination
is not in order at this stage. However, jurisdiction here is based
on a denial of pre-termination due process. When a defendant makes
a factual attack on jurisdiction by submitting relevant
allegations in the complaint and record evidence of plaintiff’s
undisputed admissions, plaintiff is required to submit facts
“through some evidentiary method” to prove “by a preponderance of
the evidence that the trial court does have subject matter
jurisdiction.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981).
Pre-termination due process requires “‘some kind of hearing’
prior to the discharge of an employee who has a constitutionally
protected property interest in his employment.” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Board of
Regents v. Roth, 408 U.S. 564, 569-70 (1972)). The hearing need

not be elaborate. Id. at 544. The employee is entitled only to
“notice and an opportunity to respond.” Id. at 546.
Plaintiff alleges she was never given a “pre-termination
opportunity to be heard in defense of the charges and evidence
against her”. (Doc. 1, Complaint ¶ 23). Prior to termination, she
acknowledges in her complaint of having meetings with the Director
of Public Works for St. Charles Parish, the Assistant Director of
the Department, the Personnel Director of St. Charles Parish, and
the Head of Procurement for St. Charles Parish, “in which Ms.
Whitener was informed that she was suspected of copying
‘confidential’ files to a public network drive.” Id. at ¶14. She

acknowledged without dispute that “[o]n September 13, 2018, [she]
met with the Parish President and the head of Procurement to
discuss what happened.” (Doc. 12-3, Ex. A-1, p. 6). During the
meeting with the Parish President and Head of Procurement, and
again without dispute, plaintiff in defense of claims against her
“explained that [she] was never informed that a network drive with
limited access containing confidential files existed in our
office.” Id. After being told during the meeting that her actions
constituted a breach of trust, plaintiff acknowledged in response
“that [she] made a mistake, and [she] was not trying to violate
trust. [She] made the screen shots of the documents that [she]

actually opened, so that in case the dates changed [they] would
have proof that the content had not changed.” (Doc. 12-3, Ex. A-
1, p. 6-7).
Plaintiff further admits, without dispute, “[a]fter hearing
me out, the Parish President asked if I would meet with Faucheux,
Department Director, to discuss everything and try to clear the
air.” (Doc. 12-3, Ex. A-1, p. 7). During the meeting with the
Department Director, plaintiff states they “all sat down in Mr.
Cochran’s office. [She] went through everything ‘again’ and said
[she] wasn’t trying to hurt anyone, [she] was trying to make sure
that the parish had proof that the records had not changed.” (Doc.
12-3, Ex. A-1, p. 7). After being informed of claims that she

intentionally made copies of confidential forms for someone who
was filing a grievance, she offered the defense that she “didn’t
know that the department had anything that wasn’t public, and [she]
did so to protect us from a public records request which may have
made the files look fishy if the date modified had changed.” (Doc.
12-3, Ex. A-1, p. 7). The foregoing admissions by plaintiff are
undisputed and are only cited for the analysis of the
jurisdictional legal issue of pre-termination due process.
Considering the complaint and undisputed facts, plaintiff
was given an opportunity to defend her position before the Parish
President and attempted to clear the air with the Department
Director prior to her termination. She was provided with and

exercised her right to invoke the discretion of the decisionmaker
before she was terminated. See Browning v. City of Odessa, 990
F.2d 842, 844-45 (5th Cir. 1993) (determining that plaintiff’s
thirty-minute meeting with his superior constituted an adequate
pre-termination hearing “since a full evidentiary post-termination
hearing was available”). Defendants’ “factual attack” on
jurisdiction is based on affidavits, testimony, and other
evidentiary material attached to their Rule 12(b)(1) motion.
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a
factual attack upon jurisdiction and in response to submissions
made by the movant, the burden is placed on the plaintiff to submit
facts through some evidentiary method and prove by a preponderance

of the evidence that the trial court does have subject matter
jurisdiction. Id. As seen earlier from plaintiff’s multiple
admissions in her complaint, her statements about pre-termination
meetings with supervisory officials contained in her grievance
process statement, and from her responses to instant factual attack
upon jurisdiction, she has not shown relevant or material facts to
maintain jurisdiction over the claim for pre-termination due
process. Plaintiff’s own version of pre-termination events show
compliance with pre-termination due process rights, the basis for
jurisdiction. Availability of federal court relief on that basis
has not been shown. In re FEMA Trailer Formaldehyde Prod. Liab.
Litig. (Mississippi Plaintiffs), 668 F.3d 281, 287 (5th Cir. 2012).

Dismissal for lack of jurisdiction is not a determination of the
merits and does not prevent the plaintiff from pursuing a claim in
a court that does have proper jurisdiction. Ramming v. U.S., 281
F.3d 158, 161 (5th Cir. 2001).
New Orleans, Louisiana this 8th day of September 2020

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185857. Public record. Not legal advice.