Dunn v. Folgers Coffee Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MELINDA DUNN CIVIL ACTION

VERSUS NO. 21-1452

FOLGERS COFFEE COMPANY SECTION “B”(2)

d/b/a THE J.M. SMUCKER CO.,

ET AL.

ORDER AND REASONS

Before the court are defendants International Union of the

United Automobile, Aerospace and the Agricultural Workers of

America, Local 1805’s (“Union” or “Local 1805”), and Ricky Silva’s

(“Silva”) motion to dismiss (Rec. Doc. 10), plaintiff Melinda

Dunn’s (“Dunn” or “Plaintiff”) response in opposition (Rec. Doc.

15), and defendants’ reply in support (Rec. Doc. 19). For the

following reasons,

IT IS ORDERED that defendants’ motion to dismiss is GRANTED,

dismissing plaintiff’s claims against Ricky Silva and the Union;

and

IT IS FURTHER ORDERED that within fourteen days of the

issuance of this order plaintiff may seek leave to amend the

complaint to provide relevant factual support, if any, for Title

VII and ADA claims against the Union to comport with noted findings

further below.

I. FACTS AND PROCEDURAL HISTORY

On or about August 26, 2019, plaintiff began employment with

defendant Folgers Coffee Company d/b/a J.M. Smucker Co.

(“Folgers”) as a technician. Rec. Doc. 1-1. Around that same time,

plaintiff’s membership with Local 1805 also began. Id. During the

first several weeks of training, she was trained by Moe Smith, her

supervisor. Id. Plaintiff progressed normally and was not subject

to any “bad” or “unacceptable” evaluations during training with

Smith. Id. However, partway through training, plaintiff was

reassigned to a new supervisor and trainer, Wayne Bordonaro. Id.

According to plaintiff, she was informed by Folgers that Moe Smith

was being trained in a new set of skills with the company, and a

new trainer had to be assigned. Rec. Doc. 1-1.

During training with Bordonaro, plaintiff claims that he

repeatedly undermined, belittled, and silenced her in front of

other co-workers. Id. Bordonaro also refused to refer to plaintiff

by her name; instead, Bordonaro called her using gender-based

nicknames such as “boo.” Id. Bordonaro also reportedly blamed his

mistakes on plaintiff and refused to listen to her admonitions on

proper procedures. Id. Further, Bordonaro would allegedly provide

inconsistent and unintelligible instructions, often in rapid

succession, and reprimanded her for asking questions when she was

confused. Id. He allegedly told plaintiff that “what happens on

this line stays on this line” and “don’t ever let me hear that my

name crossed your lips.” Rec. Doc. 1-1.

On or about October 11, 2019, plaintiff scheduled a meeting

with Union President and Folgers employee Ricky Silva. Id. At

this meeting, plaintiff reported to Silva that she was being

harassed and discriminated against by Bordonaro. Id. Plaintiff

sought Silva’s help because he was the Union President and Folgers’

procedure designated Silva to receive reports of sexual harassment

and discriminatory conduct. Id. Shortly after reporting noted

conduct, plaintiff was informed that Folgers was terminating her

employment. Id.

On or about May 7, 2021, plaintiff filed a petition for

damages in state court, alleging unlawful discrimination based on

sex and disability. See Rec. Doc. 1-1. Plaintiff also brought

claims for retaliation under Title VII and breach of duty of fair

representation under the National Labor Relations Act (“NLRA”).

Id. She claims the Union failed to investigate but actively

supported her harasser, Bordonaro. Id. On or about July 30, 2021,

defendant Folgers removed the action to this court based on federal

question jurisdiction, 28 U.S.C. § 1331. Rec. Doc. 1 (Removal

Action).

Plaintiff also seeks relief under the Americans with

Disabilities Act because she has been diagnosed and received

treatment for Attention Deficit Disorder. Rec. Doc. 1-1. The

complaint asserts that Folgers and the Union were aware of

plaintiff’s disability because she disclosed that information in

her new hire paperwork. Id. As part of defendants’ hiring

practices, she was required to submit to a pre-employment drug

test. Id. It was at this drug test that she disclosed taking

methylphenidate for her disability. Id.

On or about August 24, 2021, defendants Union and Silva filed

the instant motion to dismiss. Rec. Doc. 10. As basis, defendants

assert failures by plaintiff to state a cause of action against

the Union under Title VII and the ADA and a failure to exhaust

administrative remedies. Id. Additionally, defendants argue that

claims for breach of duty and Louisiana Employment Discrimination

Laws (LEDL) are prescribed; and must be dismissed. Id. Silva’s

dismissal motion asserts claims under Title VII and ADA are not

applicable to him in his individual or official capacity. Rec.

Doc. 10.

On or about September 28, 2021, plaintiff filed a timely

memorandum in opposition. Rec. Doc. 15. First, she contends

administrative remedies were exhausted before filing suit. Id.

Next, she asserts the breach of duty claim is not prescribed

because the statute of limitations was tolled by the filing of her

EEOC charge. Id. Regarding Title VII and ADA claims, plaintiff

contends those claims were adequately pled in her petition. Id.

Lastly, she does not contest the dismissal of Ricky Silva as a

party defendant. Id.

On or about October 4, 2021, defendants filed a reply

memorandum supporting the motion to dismiss. Rec. Doc. 19.

II. LAW AND ANALYSIS

A. Standard of Review

To survive a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a plaintiff’s complaint “must contain enough

facts to state a claim to relief that is plausible on its

face.” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)

(internal quotes omitted)). A claim is facially plausible when the

plaintiff pleads facts that allow the court to “draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Id. A court must accept all well-pleaded facts as true

and must draw all reasonable inferences in favor of the

plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th

Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

However, the court is not bound to accept as true legal conclusions

couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). “[C]onclusory allegations or legal conclusions

masquerading as factual conclusions will not suffice to prevent a

motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376,

378 (5th Cir. 2002). A fortiori, a complaint may be dismissed when

it appears “beyond a doubt that plaintiff can prove no set of

facts” that would entitle him to prevail. Twombly, 550 U.S. at

560–61, 127 S.Ct. 1955; First Am. Bankcard, Inc. v. Smart Bus.

Tech., Inc., 178 F. Supp. 3d 390, 399 (E.D. La. 2016). However,

the Fifth Circuit has stated that motions to dismiss under Federal

Rule of Civil Procedure 12(b)(6) are “viewed with disfavor and

[are]...rarely granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d

228, 232 (5th Cir.2009).

B. Exhaustion of Federal Administrative Remedies

1. Title VII Claims

Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq., prohibits discrimination based on race,

color, religion, sex, or national origin in federal and private

employment. Title VII grants an aggrieved employee the right to

file suit in federal district court, see 42 U.S.C. § 2000e–16(c),

but before suing, an employee must exhaust administrative remedies

against their employer. See Francis v. Brown, 58 F.3d 191, 192

(5th Cir. 1995); Brown v. General Servs. Admin., 425 U.S. 820,

832–33, 96 S.Ct. 1961, 1967–68, 48 L.Ed.2d 402 (1976). If an

employee fails to exhaust administrative remedies, the district

court cannot adjudicate the employee's Title VII claim. See Porter

v. Adams, 639 F.2d 273, 276 (5th Cir.1981) (noting that exhaustion

is “an absolute prerequisite” to suit under § 2000e–16).

Therefore, a claimant must first file a timely claim with the EEOC

and receive a right to sue letter before a lawsuit on the claim

can be filed.

Plaintiff filed her charge with the EEOC on October 11, 2019,

asserting sex discrimination and retaliation under Title VII. Rec.

Doc. 15-2. Defendants argue that plaintiff did not file the EEOC

charge against the Union; instead, she only filed the charge

against Folgers. However, on the charge of discrimination

application, plaintiff Dunn expressly typed out the name of the

Union as the discriminating party. See id. Moreover, plaintiff

received her right to sue the Union on February 10, 2021. Rec.

Doc. 15-3. Accordingly, plaintiff properly exhausted Title VII

administrative remedies.

2. Americans with Disabilities Act (ADA) Claims

It is well-settled that a plaintiff must exhaust all

administrative remedies before an action can be brought under the

ADA. See, e.g., Dao v. Auchan Hypermarket, 96 F.3d 787, 788–89

(5th Cir.1996); Adams v. Columbia/HCA of New Orleans, Inc., No. CV

20-3030, 2021 WL 5178286 (E.D. La. Apr. 8, 2021). The exhaustion

requirement is satisfied when plaintiff files a timely charge with

the EEOC and receives a statutory right-to-sue notice. Dao, 96

F.3d at 788–89. The Fifth Circuit has held there is no jurisdiction

for a court to consider an ADA claim when the aggrieved party has

not exhausted all administrative remedies. See, e.g., Nat'l Ass'n

v. City of Public Service Board of San Antonio, 40 F.3d 698, 711

(5th Cir.1994). After the exhaustion requirement is satisfied, any

subsequent lawsuit under the ADA is restricted to the scope of the

plaintiff's administrative charge and the EEOC investigation that

can reasonably be expected to grow out of that charge. Pacheco v.

Mineta, 448 F.3d 783, 788-89 (5th Cir. 2006). However, if a

plaintiff fails to exhaust her administrative remedies, the court

must dismiss the unexhausted claims on their merits. Dao, 96 F. 3d

at 788-89.

As with the Title VII claims, supra, plaintiff adequately

exhausted her administrative remedies regarding the ADA claim. In

the charge of discrimination application, plaintiff checked the

boxes for Title VII retaliation and sex discrimination and the box

for disability discrimination. Rec. Doc. 15-2. Plaintiff also

received her right to sue letter on February 10, 2021. Rec. Doc.

15-3. Accordingly, administrative remedies regarding the ADA claim

have been adequately exhausted.

C. Louisiana Employment Discrimination Laws (LEDL)

Plaintiff claims that the Union violated the state disability

discrimination statute, which provides that “no otherwise

qualified person with a disability shall, on the basis of a

disability, be subjected to discrimination in employment.” La.

Rev. Stat. § 23:323. Defendants, however, argue that this claim

is prescribed.

Claims under La. Rev. Stat. § 23:323 are governed by the

prescriptive period set forth in La. Rev. Stat. § 23:303(D). See

Lefort v. Lafourche Par. Fire Prot. Dist. No. 3, 39 F. Supp. 3d

820 (E.D. La. 2014); Nabors v. Metro. Life Ins. Co., CIV.A. No.

12–827, 2012 WL 2457694, at *3 (W.D.La. May 30, 2012). It reads:

Any cause of action provided in this Chapter shall be

subject to a prescriptive period of one year. However,

this one-year period shall be suspended during the

pendency of any administrative review or investigation

of the claim conducted by the federal Equal Employment

Opportunity Commission or the Louisiana Commission on

Human Rights. No suspension authorized pursuant to this

Subsection of this one-year prescriptive period shall

last longer than six months.

La. Rev. Stat. § 23:303(D). This one-year prescriptive period

begins to run from the date of notice of termination. Eastin v.

Entergy Corp., 865 So.2d 49, 54 (La. 2004). Additionally, both the

Fifth Circuit and this Court have consistently recognized that

Section 23:303(D) provides for a maximum prescriptive period of

eighteen (18) months. See, e.g., Williams v. Otis Elevator Co.,

557 Fed.Appx. 299, 302 (5th Cir. 2014) (“The Louisiana anti-

discrimination statute has a prescriptive period of one year, which

can be suspended for a maximum of six months during the pendency

of a state or federal administrative investigation.”); Lefort v.

Lafourche Par. Fire Prot. Dist. No. 3, 39 F. Supp. 3d 820, 825

(E.D. La. 2014) (“Consequently, the Louisiana disability

discrimination statute requires a plaintiff to file suit on his

discrimination claim no later than eighteen months after the

occurrence forming the basis for the claim.”); Bellow v. Bd. of

Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 913 F. Supp.

2d 279, 289 (E.D. La. 2012) (“Therefore, the total amount of time

that a plaintiff has to bring a claim under Louisiana Revised

Statute [§] 23:322 is eighteen months.”)

The incident forming the basis of plaintiff’s claim under the

LEDL occurred on October 11, 2019. Not only did plaintiff report

her allegations to the defendant on that date, but Folgers also

terminated plaintiff’s employment on that date. Therefore,

plaintiff had a total of eighteen (18) months from that day to

file suit. Plaintiff, however, did not file the current suit until

May 7, 2021. Accordingly, the claim is prescribed on its face and

must be dismissed.

D. Breach of Duty of Fair Representation

Section 9(a) of the National Labor Relations Act (“NLRA”)

implies a duty of fair representation, which requires a union “to

serve the interests of all members without hostility or

discrimination toward any, to exercise its discretion with

complete good faith and honesty, and to avoid arbitrary conduct.”

O'Neill v. Airline Pilots Ass'n, Int'l, 939 F.2d 1199, 1201 (5th

Cir. 1991) (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct.

903, 17 L.Ed.2d 842 (1967)); Carr v. Air Line Pilots Ass'n, Int'l,

866 F.3d 597 (5th Cir. 2017), as revised (July 14, 2017). Unions

have broad discretion in resolving internal disputes, and their

actions are judged by a “wide range of reasonableness.” Id. A

breach of fair duty occurs only when the union's conduct is

“arbitrary, discriminatory, or in bad faith.” Id. A claim that a

union acted ‘perfunctorily’ requires a demonstration that the

union ignored the grievance, inexplicably failed to take some

required step, or gave the grievance merely cursory attention.”

Lowrey v. Exxon Corp., 812 F. Supp. 644, 650 (M.D. La. 1993); Tate

v. United Steel Workers Union Loc. 8363, No. CV 20-882, 2021 WL

3633472 (E.D. La. Aug. 17, 2021).

Furthermore, a claim that the Union has breached its duty of

fair representation is an unfair labor practice under §§ 8(b) and

10(b) of the NLRA. Tate, 2021 WL 3633472 at *11. As a result, §

10(b)’s six-month statute of limitations governs. Id.; see also

DelCostello v. Int'l Broth. of Teamsters, 462 U.S. 151, 169 (1983).

The limitations period begins to run when the plaintiff discovers,

or in the exercise of reasonable diligence should have discovered,

the acts that form the basis of the duty of fair representation

claim. See Lee v. Cytec Indus., Inc., No. CIV.A.03-3176, 2005 WL

1155772, *8 (E.D. La. May 12, 2005), aff'd, 460 F.3d 673 (5th Cir.

2006); Hebert v. Gen. Truck Drivers, Chauffeurs, Warehousemen and

Helpers, Local 270, No. Civ.A. 03-1744, 2004 WL 1597144, at *5

(E.D.La. July 16, 2004). The period begins “when the plaintiff

either knew or should have known of the injury itself, i.e., the

breach of duty of fair representation, rather than of its

manifestations.” Barrett v. Ebasco Constructors, Inc., 868 F.2d

170, 171 (5th Cir.1989).

In Stevens v. Lake Charles Coca-Cola Bottling Co., the

plaintiff, Harry Stevens, sued Coca-Cola Bottling Company United,

Inc. (“CCBU”), claiming CCBU breached its collective bargaining

agreement and its duty to fairly represent the plaintiff. No. 2:11

CV 344, 2011 WL 2173649 (W.D. La. June 1, 2011). In response, CCBU

filed a motion to dismiss plaintiff’s claims. Id. at *1. The

Western District of Louisiana court ultimately granted the

defendant’s motion to dismiss on the grounds that the plaintiff’s

claim was untimely. Id. at *3. The Court began its analysis by

stating the applicable statute of limitations for plaintiff’s

claim was six-months. Id. at *3-4. This six-month period began to

run when the plaintiff knew or should have known of the injury,

i.e., the union’s failure to fairly represent him. Id. In this

case, the Court reasoned that Stevens’ claim was untimely given

the acts forming the basis of his suit arose in March 2010.

Stevens, 2011 WL 2173649 at *3-4. Accordingly, the latest possible

date in which Stevens could have filed his claim would have been

September 2010, six-months later. Id. Plaintiff’s petition,

however, wasn’t filed until February 2011. Id. Thus, plaintiff’s

claim was untimely, and the Court granted defendant’s motion to

dismiss. Id.

Like the plaintiff in Stevens, Dunn also had a six-month

statute of limitations period in which she was required to assert

any claim against the Union for breach of its duty of fair

representation. Plaintiff informed the defendants on October 11,

2019, of the alleged harassment and discriminatory conduct of Mr.

Bordonaro. Likewise, on that same date, plaintiff claimed the

defendants failed to act on her allegations and “actively supported

her termination.” Rec. Doc. 1-2 at 10-11 (Petition). Because

plaintiff knew on October 11, 2019 that the Union failed to act on

her allegations, the six-month period began to run from that date.

Thus, plaintiff had until April 11, 2020 to bring her cause of

action against defendants. Plaintiff, however, did not file her

petition until May 7, 2021. Accordingly, the statute of limitations

has run and the subject claim must be dismissed.

E. Silva is not a Proper Party

As discussed supra, Title VII makes it “an unlawful employment

practice for an employer ... to discriminate against any individual

... because of such individual's race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e–2(a)(1). However, “the

statutory scheme of title VII indicates [s] that Congress did not

intend to impose individual liability on employees.” Nelson v. Lake

Charles Stevedores, L.L.C., No. 2:11-CV-1377, 2014 WL 1339827

(W.D. La. Apr. 2, 2014); See also Chehl v. So. Univ. & Agric. &

Mech. Coll., 34 Fed. Appx. 963 (5th Cir.2002) (stating that

“[w]hile Title VII defines ‘employer’ to include any agent of the

employer, the Fifth Circuit does not interpret the statute to

impose individual liability on the agent”)). While the statute

defines “employer” to include any “agent” of the employer, 42

U.S.C. § 2000e(b), “the purpose of the ‘agent’ provision in §

2000e(b) [is] to incorporate respondeat superior liability into

title VII.” Grant v. Lone Star Co., 21 F.3d 649, 652 (5th

Cir.1994). “Thus, a Title VII suit against an employee is actually

a suit against the [employer].” Hosey v. M.L. Smith, Jr., Inc.,

No. 3:05–1706, 2007 WL 2592357 (W.D.La. Sept. 6, 2007) (quoting

Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th

Cir.1999). In other words, an employee may not be held personally

liable for damages under Title VII. Ackel v. National

Communications, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003)

(holding “[i]ndividuals are not liable under Title VII in either

their individual or official capacities.”); Grant v. Lone Star

Co., 21 F.3d 649, 651–52 (5th Cir.1994); Indest v. Freeman

Decorating, Inc., No. 95–16, 1995 WL 366484, at *1 (E.D.La. June

20, 1995) (Clement, J.) (“The law is well-settled in the Fifth

Circuit that employees cannot be sued in their individual capacity

under Title VII”).

Furthermore, the ADA definition of “employer” mirrors the

Title VII definition. Franklin v. City of Slidell, 936 F. Supp. 2d

691, 703 (E.D. La. 2013). Although the Fifth Circuit has not

directly addressed the question of whether an employer's agent or

employee may be held liable under the ADA, this Court has recently

concluded that individuals are not subject to liability under Title

I of the ADA. Id. at 703. The Court reached this conclusion in

light of “(a) the similarities between the definition of “employer”

in Title VII and the ADA, (b) the similar purposes of the two

statutes, (c) the Fifth Circuit's consistent holdings that

individuals cannot be held liable under Title VII in either their

individual or official capacities, and (d) the weight of authority

outside of the Fifth Circuit.” Id. (dismissing plaintiffs ADA and

Title VII claims against the individual defendants as such claims

are not legally cognizable.)

Plaintiff stated that she does not contest the dismissal of

Ricky Silva as a party defendant. To the extent that she is

asserting claims against Silva under Title VII and the ADA, the

Court finds that such claims are not legally cognizable. Silva is

an individual defendant employee, and as such, he cannot be held

liable in either his individual capacity or official capacity as

Union President. Additionally, given plaintiff is not opposed to

Silva’s dismissal, the proper course of action is to dismiss Silva

as an individual party defendant.

F. Plaintiff fails to state a claim against the Union for

Discriminatory Conduct under Title VII.

Sex Discrimination Claim Under Title VII

A Title VII plaintiff carries the initial burden of

establishing a prima facie case of discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Tate v.

United Steel Workers Union Loc. 8363, No. CV 20-882, 2021 WL

3633472 (E.D. La. Aug. 17, 2021). Employment discrimination

plaintiffs often rely on indirect evidence of discrimination using

the burden-shifting framework of McDonnell Douglas. McDonnell

Douglas Corp., 411 U.S. at 802–03. However, the Fifth Circuit

adopted a modified McDonnell Douglas test for claims of

discrimination by a union. Wesley v. Gen. Drivers Local 745, 660

F.3d 211, 214 (5th Cir. 2011); Tate, 2021 WL 3633472 at *6. For

claims involving a union, the plaintiff must establish that (1)

she is a member of a protected class, (2) she was subject to an

adverse union action, and (3) she was treated less favorably by

the union than employees of a different sex. Wesley, 660 F.3d at

214(citing Stalcup v. Commc'n Workers of Am., 44 F. App'x 654 (5th

Cir. 2002)).

To establish that she was treated less favorably than

similarly situated union members, Plaintiff must proffer a

comparator, a union member who is a member of a different sex who

was treated more favorably “under nearly identical circumstances,”

which is established when the members’ conduct and circumstances

are nearly identical. See Dotson v. Gulf, No. Civ.A. H-05-0106,

2006 WL 44071, at *7 (S.D. Tex. Jan. 9, 2006) (citing Krystek v.

Univ. of S. Miss., 164 F.3d 251, 257 (5th Cir. 1999) (holding non-

tenure track professor is not similarly situated to a tenure track

professor)); Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th

Cir. 2009) (“[W]e require that an employee who proffers a fellow

employee demonstrate that the employment actions at issue were

taken ‘under nearly identical circumstances.’”). “The ‘nearly

identical’ standard, when applied at the McDonnell Douglas pretext

stage is a stringent standard – employees with different

responsibilities, different supervisors, different capabilities,

different work rule violations, or different disciplinary records

are not considered to be ‘nearly identical.’” Dotson, 2006 WL

44071, at *7 (citing Okoye v. Univ. of Tex. Houston Health Sci.

Ctr., 245 F.3d 507, 514-15 (5th Cir. 2001)).

Here, plaintiff did not plead any facts to infer that she

fell victim to sex discrimination by the Union. The extent of

plaintiff’s factual allegations are the same contentions she puts

forth for her retaliation claim, infra. Essentially, plaintiff

restates that the Union “failed to open an investigation,” “failed

in its duties of representation,” and “actively supported her

termination.” However, the asserted conclusions do not lend

factual support to a claim for sex discrimination. Likewise,

plaintiff did not put forth any allegations that the Union treated

her less favorably than a particular person of another sex under

similar circumstances. Plaintiff may seek leave to amend the

complaint within fourteen days to allege factual support, if any,

for legal conclusions against the Union in an effort to rectify

noted deficiencies.1

Retaliation Claim Under Title VII

In analyzing retaliation claims under Title VII, a plaintiff

must plead that “(1) she engaged in activity protected by Title

VII, (2) she suffered a materially adverse employment action, and

(3) there was a causal link between the protected activity and the

adverse employment action.” Jenkins v. City of San Antonio Fire

Dep't, 784 F.3d 263, 269 (5th Cir. 2015). A labor organization

such as the Union cannot discriminate against any member “because

[s]he has opposed any practice made an unlawful employment practice

by [Title VII] or ... made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under [Title VII].” 42 U.S.C. § 2000e-3(a).

In Jackson v. W. Gulf Mar. Ass'n, plaintiff Florence Jackson,

filed suit against her employer, Texas Stevedoring, and her union,

International Longshoremen’s Association, AFL-CIO, Local 24

(“Local 24”). No. CV H-19-2219, 2020 WL 10895553 (S.D. Tex. Sept.

3, 2020). In her complaint, plaintiff alleged defendants harassed

and discriminated against her. Id. at *1. Jackson further alleged

defendants retaliated against her for filing complaints and kept

her from obtaining gainful employment. Id. Thereafter, Local 24

1 Pleadings filed in good faith and with good cause are acceptable; repetitive, vexatious, false, and harassing ones

are subject to dismissal and sanctions.

moved for summary judgement on plaintiff’s Title VII sex

discrimination and retaliation claims. Id. Local 24 contended

Jackson failed to present a prima facie case of retaliation; thus,

the claim failed. Id. at *5. Upon review, the Southern District of

Texas court granted the defendant’s motion for summary judgment as

to Jackson’s Title VII claim for retaliation. Jackson, 2020 WL

10895553 at *5. The court reasoned that to establish a prima facie

case of retaliation Jackson was required to show: (1) she engaged

in a protected activity; (2) she was subjected to an adverse

employment action; and (3) there was a causal connection between

the protected activity and the adverse action. Id. Plaintiff,

however, failed to carry her burden of proof. Id. Specifically,

plaintiff failed to satisfy the second prong, supra, as she could

not show that she was subjected to an adverse employment action.

Id. Because plaintiff failed to satisfy her burden of proving all

three elements of her claim, the Court granted summary judgment in

favor of defendant Local 24. Jackson, 2020 WL 10895553 at *5.

Likewise, in Williams v. Recovery Sch. Dist., plaintiff Joe

Williams filed suit against defendant Recovery School District

(“RSD”), alleging he was denied equal employment opportunities

based on his race, age, and disability. 859 F. Supp. 2d 824 (E.D.

La. 2012). Williams also alleged that RSD subjected him to various

retaliatory acts, in violation of Title VII. Id. at 827.

Subsequently, RSD filed a Rule 12(b)(6) motion to dismiss, seeking

to dismiss plaintiff’s compliant in its entirety. Id. at 830-32.

In reviewing plaintiff’s retaliation claim against RSD, this Court

began by citing the three-prong test, discussed supra. Id. The

Court then went on to find that Williams failed to allege facts

sufficient to sustain his retaliation claim. Id. Specifically, the

Court noted that plaintiff failed to allege the third element of

his claim, a causal connection between his protected activity and

his termination of employment. Williams, 859 F. Supp. 2d at 830-

32. Because Williams did not properly plead a prima facie case for

retaliation, the Court dismissed his claim. Id.

Like the plaintiff in Williams who failed to satisfy all three

prongs for a retaliation claim, Dunn has also failed to plead a

proper cause of action for retaliation. Specifically, she failed

to plead and allege factual support for the third prong, i.e.

causal connection between a protected activity and the adverse

employment action. Plaintiff properly pled the first element by

reporting harassment and discrimination to Silva in his capacity

as the Union President. The act of reporting discriminatory actions

is a protected activity. EEOC v. Rite Way Serv., Inc., 819 F.3d

235, 239 (5th Cir. 2016) (quoting 42 U.S.C. § 2000e–3(a)) (“Under

Title VII's antiretaliation provision, protected activity can

consist of either: (1) ‘opposing any practice made an unlawful

employment practice by [Title VII]’ or (2) ‘making a charge,

testifying, assisting, or participating in any manner in an

investigation, proceeding, or hearing under [Title VII].’”)

Plaintiff also satisfied the second prong by alleging an adverse

employment action, termination of employment from Folgers.

Plaintiff claims the Union “failed to open an investigation,”

“failed in its duties of representation,” and “actively supported

her termination.” However, such contentions tend to air more

towards the claim for breach of the duty of fair representation,

not a retaliation claim. Further, such allegations do not lend

support to show the act of reporting Bordonaro’s behavior to the

Union caused Folgers to terminate her employment. Plaintiff could

have satisfied this causal element had she alleged a causal

connection is inferred from the close temporal proximity between

the act of reporting Bordonaro’s behavior and her subsequent

termination. See Williams v. Recovery Sch. Dist., 859 F. Supp. 2d

824 (E.D. La. 2012) (“causation may be inferred from a close

temporal proximity between a protected activity and an adverse

employment action); Strong v. Univ. Healthcare Sys., L.L.C., 482

F.3d 802, 808 (5th Cir.2007). However, plaintiff has not alleged

the existence of any causal connection and factual support for

same. Courts do not assume or insert allegations into complaints.

While the noted pleading deficiencies are glaring ones, plaintiff

may seek leave if she can do so in good faith to amend the complaint

within fourteen days of this ruling’s issuance in an effort to

provide factual allegation of and support for causal connectivity,

if any.

G. Plaintiff fails to state a claim against the Union for

Discriminatory Conduct under the ADA.

The ADA prohibits discrimination by a “covered entity”

against “a qualified individual with a disability because of the

disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions,

and privileges of employment.” 42 U.S.C. § 12112(a). A “covered

entity” includes a “labor organization.” 42 U.S.C. § 12111(2). To

establish a prima facie case for discrimination against a union,

the plaintiff must show that: (1) she suffers from a disability;

(2) she was subject to an adverse union action; and (3) she was

treated less favorably than non-disabled employees. Stalcup v.

Commc'n Workers of Am., 44 F. App'x 654 (5th Cir. 2002).

In Stalcup v. Commc'n Workers of Am., a terminated employee

sued her former union, claiming that the union had discriminated

against her on account of her disability when it failed to file a

grievance against her employer for disability discrimination. 44

Fed.Appx. 654 (5th Cir.2002). There, the Fifth Circuit held that

the plaintiff had to prove the following elements to state a claim

for disability discrimination against her union: “(1) she suffers

from a disability; (2) she was subject to an adverse union action;

and (3) she was treated less favorably than non-disabled

employees.” Id. at *3 (citing Alexander v. Local 496, Laborers'

Int'l Union of N. Am., 177 F.3d 394, 402–03 (6th Cir.1999)).

Ultimately, the Court ruled that the plaintiff did not establish

a prima facie case of discrimination by the union because she

failed to establish that the union treated her less favorably than

non-disabled employees. Id.

As shown with the Title VII claims, plaintiff did not

adequately plead all the elements and factual support for an ADA

claim. The first element was satisfied by alleging she is disabled

as the term is used under the ADA because of Attention Deficit

Disorder. Likewise, the second element was satisfied when

plaintiff asserted the Union failed to investigate her reports of

sexual harassment and discrimination. However, she failed to

present any allegations with factual support concerning the third

element, that she was treated less favorably than other non-

disabled employees.

In the petition, plaintiff mentions being discriminated

against because of her disability when her employer provided her

with a one-page evaluation completed only by Bordonaro. Rec. Doc.

1-1, at 7 (Plaintiff’s Petition). According to plaintiff, other

“non-disabled employees – received a multipage evaluation which

was completed by multiple evaluators.” Id. Even assuming this

contention is true, this allegation concerns plaintiff’s claim

against Folgers under the ADA and not the Union. The fact that

“non-disabled employees” received multi-page evaluations from

Folgers bears no insight into how the Union treats non-disabled

union members in comparison to plaintiff. Just as plaintiff pled

the above allegation concerning Folgers’ adverse treatment of her

compared to non-disabled employees, plaintiff was required to

provide a similar allegation concerning the Union’s treatment of

her compared to non-disabled members. Because plaintiff failed to

provide such an allegation, plaintiff’s ADA claim against the Union

fails.

New Orleans, Louisiana, this 25th day of January, 2022

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE