Julien v. St. John the Baptist Parish School System

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHARLES JULIEN CIVIL ACTION

VERSUS NO. 21-1081

ST. JOHN THE BAPTIST PARISH MAG. SECTION 3

SCHOOL SYSTEM, ET AL.

ORDER AND REASONS

Before the Court is a Rule 12(b)(6), 12(b)(5), and 12(b)(2) Motion to Dismiss Complaint

(Rec. Doc. No. 12) filed by defendants, St. John the Baptist Parish School Board, Christopher

Mayes, and Brandon Brown. Plaintiff, Charles Julien, has filed an opposition. (Rec. Doc. No. 21).

Having considered the briefs and the applicable law, the Motion to Dismiss is GRANTED as

outlined below.

I. BACKGROUND

a. Initial Complaint

Plaintiff filed his complaint alleging violations of Title VII and Louisiana state law on June

3, 2021, naming the St. John the Baptist Parish School System (“SJBPSS”), Christopher Mayes,

Brandon Brown, Serena Duke, Cory Butler, and Heidi Trosclair as defendants. (Rec. Doc. No. 1,

p. 2). According to the record, Plaintiff filed an administrative complaint with the Equal

Employment Opportunity Commission (EEOC) on or about February 11, 2020.1 (Rec. Doc. No.

1, p. 2). On April 6, 2021, the EEOC issued a right to sue letter to Plaintiff. Id.

According to the complaint filed herein, Plaintiff was an English teacher and Head Coach

of the boys basketball team at East St. John High School since August of 2017. (Rec. Doc. No. 1,

1 The Court notes that the referenced EEOC complaint was not attached to the instant complaint nor as an exhibit to

any of the pleadings in the instant matter, and therefore cannot verify the exact dates.

p. 2). In October of 2018, he filed an internal grievance against Christopher Mayes for sexual

harassment through comments and gestures. Id. Specifically, Plaintiff alleges that Mr. Mayes

showed him a nude photograph of himself, and then made a lewd gesture indicating he wanted to

perform sexual acts on him. Id. Two days after the filing of the internal grievance, Plaintiff was

informed by Serena Duke that the SJBPSS did not find any wrongdoing by Mr. Mayes. Id. at 3.

Plaintiff alleges that several months later, Mr. Mayes and Mr. Brown began to retaliate

against him beginning in April of 2019 including where Plaintiff and the basketball team were

locked out of the practice facility on at least four occasions, where Mr. Brown refused to allow the

basketball team to partake in physical education class in August of 2019, and culminating with

Mr. Brown and Mr. Mayes removing Plaintiff as the Head Coach of the basketball team. Id.

Plaintiff contends these actions were taken in retaliation for his sexual harassment grievance filed

with SJBPSS. Id.

Based upon the aforementioned actions, Plaintiff brings claims for retaliation under Title

VII2 and in violation of Louisiana Revised Statute 23:967 as well as whistleblower violations under

Louisiana Revised Statute 42:1169. (Rec. Doc. No. 1, p. 5 & Rec. Doc. No. 28, p. 2). On February

1, 2022, Plaintiff filed a Motion to Dismiss Cory Butler and Heidi Trosclair as Defendants, (Rec.

Doc. No. 34), which the Court subsequently granted. (Rec. Doc. No. 36). On October 29, 2021,

Defendants Brown, Mayes, and SJBPSS filed the instant motion to dismiss pursuant to Rules

12(b)(6), 12(b)(5), and 12(b)(2). (Rec. Doc. No. 12).

b. Amended Complaint

On December 7, 2021, Plaintiff filed a Motion for Leave to File First Supplemental and

Amended Complaint (Rec. Doc. No. 20), which this Court granted on January 10, 2022. (Rec.

2 Discussed in detail below, Defendant was of the impression that Plaintiff also brought a Title VII sexual harassment

claim. However, Plaintiff has clarified that he brings no claim for sexual harassment under Title VII.

Doc. No. 27).3 The supplemental and amended complaint names Dr. Lynett Hookfin, the

Superintendent of SJBPSS, as an additional defendant. (Rec. Doc. No. 28). There, Plaintiff alleges

that on October 29, 2021, Dr. Hookfin removed Plaintiff from his position at East St. John High

School and transferred him to East St. John Preparatory School. Id. at 2. Plaintiff alleges that this

action was “punishment” for filing a grievance against Mr. Mayes, as well as filing his complaint

in the instant matter. Id.

II. THE PARTIES’ CONTENTIONS

Defendants contend that dismissal of the claims asserted against the School Board is

required under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5) because the School Board

was not properly and timely served as required by Federal Rule of Civil Procedure 4(m). (Rec.

Doc. No. 12-1, p. 2). Defendants argue that the Court potentially lacks authority to assert personal

jurisdiction over the School Board as a result of improper service. Id. at 3.

Pursuant to Rule 12(b)(6), Defendants argue that dismissal of the Title VII sexual

harassment and Louisiana whistleblower claims is required because the claims are time-barred.

(Rec. Doc. No. 12-1, p. 2). Further, Defendants contend that Plaintiff’s attempt to assert a cause

of action for an alleged whistleblower violation under Louisiana Revised Statute 42:1169 is legally

invalid because courts have consistently held that a private right of action does not exist under the

3 Plaintiff does not argue, but Defendants raise the issue of whether the amended complaint renders the instant Motion

to Dismiss moot. (Rec. Doc. No. 25, p. 3). To be clear, courts in this district generally adhere to the rule that an

amended complaint renders a motion to dismiss the original complaint moot. See, e.g., Stevens v. St. Tammany Par.

Gov., Civ. A. No. 20-928, 2020 WL 4219638, at *4 (E.D. La. 2020). However, that general rule does not automatically

apply when the motion to dismiss attacks the original complaint for deficiencies that continue to persist in the amended

complaint. Id. (noting that courts in the Fifth Circuit consider whether the amended complaint cures defects in the

original pleading before deciding whether the pending motion to dismiss is moot). Here, the Court agrees with

Defendants that the instant motion to dismiss is not moot based on the filing of the amended complaint. The amended

complaint does not change any of the allegations set forth in the original complaint but adds seven factual allegations

to support a new claim against a new defendant. (See Rec. Doc. No. 28). Therefore, the Court proceeds to analyze the

motion to dismiss.

statute. Id. Additionally, Defendants contend that the Title VII claim against Mr. Mayes and Mr.

Brown is legally invalid because courts in this circuit have consistently recognized that there is no

individual liability for employees under Title VII. Id. Finally, Defendants contend that the request

for punitive damages must be dismissed because such damages cannot be recovered against

governmental entities such as the School Board. Id.

First, Plaintiff argues that the interests of justice favor this Court denying the motion to

dismiss on grounds of personal jurisdiction pursuant to Rule 12(b)(2) and improper service under

Rule 12(b)(5). Id. Plaintiff claims that any improper service can be cured by allowing Plaintiff

time to correctly serve SJBPSS, which would establish personal jurisdiction over the School

Board. Id. at 3-4. Plaintiff contends that good cause exists because the School Board has been

placed on notice and is, therefore, not surprised or ambushed by the litigation, and the School

Board has been aware since the filing of the internal grievance, the EEOC process, and the

provision of the summons and complaint to “its office.” Id. at 4. Plaintiff also contends good cause

exists because service was attempted by utilizing two different methods upon the School Board:

first, in person wherein the School Board was presented with a copy of the summons and

complaint, and second, via certified mail. Id.

Additionally, Plaintiff in opposition clarifies that his complaint does not contain a claim

for sexual harassment under Title VII.4 While Plaintiff acknowledges that the complaint does in

fact “contain allegations of sexual harassment,” he contends that the litigation is solely focused on

claims for retaliation, workplace harassment, and disparate treatment that transpired “as a result of

the Plaintiff filing an internal grievance for the reporting of sexual harassment.” (Rec. Doc. No.

4 Defendant made various arguments regarding the dismissal of Plaintiff’s Title VII sexual harassment claims. (See

Rec. Doc. No. 12). Because Plaintiff has clarified that his complaint does not contain any Title VII sexual harassment

claim, the Court will not address those arguments.

21, p. 2) (emphasis in original). Regarding those claims, Plaintiff further contends that he complied

with all required deadlines, and that those claims should therefore not be dismissed.

Plaintiff also contends that the Louisiana whistleblower claims are not time barred because

of the continuing tort doctrine. (Rec. Doc. No. 21, p. 2). Plaintiff states that Defendants had a

continuous duty not to commit the acts of reprisal alleged herein. Id. at 3.

Plaintiff concedes that dismissal of the whistleblower claims may be appropriate against

Mr. Mayes and Mr. Brown. (Rec. Doc. No. 21, p. 3). Plaintiff also provides that dismissal may be

appropriate against Mr. Mayes and Mr. Brown regarding the Title VII claims. Id. However,

Plaintiff maintains that the Title VII claims against St. John the Baptist Parish School System

should remain. Id. Finally, Plaintiff argues that he is entitled to punitive damages. Id. He contends

that the cases cited by Defendants give no specific indication that school boards are immune from

liability for punitive damages. Id. at 5.

III. APPLICABLE STANDARDS

a. 12(b)(2) & 12(b)(5)

A motion to dismiss pursuant to Rule 12(b)(2) asserts that the district court lacks personal

jurisdiction over one or more defendants. See Fed. R. Civ. P. 12(b)(2). In this case, Defendant

moves pursuant to 12(b)(2) for lack of personal jurisdiction due to improper service of process.

(Rec. Doc. No. 12-1).

Rule 12(b)(5) permits a defendant to move to dismiss a complaint for improper service of

process. Lee v. OfferUp, Inc., 2018 WL 1326154, at *2 (E.D. La. Mar. 15,

2018). “A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the

lack of delivery of the summons and complaint.” Id. (quoting 5B Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure, § 1353 (3d ed.)). “Federal Rule of Civil

Procedure 12(b)(5) provides for dismissal of a claim if service of process was not timely made in

accordance with Federal Rule of Civil Procedure 4 or was not properly served in the appropriate

manner.” Wallace v. St. Charles Parish Sch. Bd., 2005 WL 1155770, at *1 (E.D. La. May 5,

2005). “If a defendant is not served within 90 days after the complaint is filed, the court ... must

dismiss the action without prejudice against that defendant or order that service be made within a

specified time.” Fed. R. Civ. P. 4(m).

Significantly, if a party is not validly served with process, proceedings against that party

are void. Doe v. St. James Parish School Board, 2016 WL 1558794, at *1 (E.D. La. Apr. 18, 2016)

(citing Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th

Cir. 1981)). When service of process is challenged, the party on whose behalf service was made

bears the burden of establishing its validity. Id. “The district court enjoys a broad discretion in

determining whether to dismiss an action for ineffective service of process.” George v. U.S. Dep't

of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986).

b. 12(b)(6)

A Rule 12(b)(6) motion for failure to state a claim is appropriate when a claim is time-

barred, as is alleged here. Jones v. ALCOA, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (citations

omitted) (“A statute of limitations may support dismissal under Rule 12(b)(6) where it is evident

from the plaintiff’s pleadings that the action is barred, and the pleadings fail to raise some basis

for tolling or the like.”); see also Kansa Reinsurance Co., Ltd. v. Cong. Mortg. Corp., 20 F.3d

1362, 1366-70 (5th Cir. 1994) (dismissing a time barred claim filed after the applicable statute of

limitations expired pursuant to Rule 12(b)(6)). When deciding a 12(b)(6) motion to dismiss for

failure to state a claim, the court “accepts all well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.” Hendrix v. iQor Inc., 2021 WL 3040776, at *2 (N.D. Tex. June 7,

2021) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)

(international quotation marks and citations omitted)). To survive a Rule 12(b)(6) motion,

therefore, a complaint must contain sufficient factual matter to state a claim for relief that is

plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the

‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” In re

Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Twombly, 550

U.S. at 555).

This pleading standard does not require “detailed factual allegations,” but it does demand

more than an unadorned accusation devoid of factual support. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw a reasonable inference that the defendant is

liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions can provide

the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at

679. Where the facts do not permit the court to infer more than the mere possibility of misconduct,

the complaint has stopped short of showing that the plaintiff is plausibly entitled to relief. Id. at

678 (citing Twombly, 550 U.S. at 557).

“In determining whether a plaintiff's claims survive a Rule 12(b)(6) motion to dismiss, the

factual information to which the court addresses its inquiry is limited to (1) the facts set forth in

the complaint, (2) documents attached to the complaint, and (3) matters of which judicial notice

may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc. v. Lincoln Prop.

Co., 920 F.3d 890, 900 (5th Cir. 2019) (citing Norris v. Hearst Tr., 500 F.3d 454, 461 n.9 (5th Cir.

2007)); R2 Invs. LDC v. Phillips, 401 F.3d 638, 640 n.2 (5th Cir. 2005); see also Fed. R. Evid.

201(b)(2) (permitting courts to judicially notice a fact that “can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned”). “Dismissal is

appropriate when the complaint ‘on its face show[s] a bar to relief.’” Cutrer v. McMillan, 308

Fed.Appx. 819, 820 (5th Cir.2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th

Cir.1986)).

IV. LAW AND ANALYSIS

a. Personal Jurisdiction and Improper Service

This Court lacks personal jurisdiction over the School Board due to improper service of

process pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(5). (Rec. Doc. No. 12-1).

“Personal jurisdiction … is an essential element of the jurisdiction of the [court], without which

the court is powerless to proceed to an adjudication.” Pervasive Software, Inc. v. Lexware GmbH

& Co. KG, 688 F.3d 214, 232 (5th Cir. 2012) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1990)) (internal quotation omitted). It is only through

proper service in the manner required by the federal rules that invests a court with jurisdiction to

adjudicate a plaintiff’s action against a named and properly served defendant. See Fairchild v.

I.R.S., 450 F.Supp.2d 654, 656 (M.D. La. 2006). A defendant’s actual notice of the pendency of

an action is irrelevant if service fails to comport with the statutory requirements for proper service.

Id. (citing Wuchter v. Pizzutti, 276 U.S. 13, 24, 48 S.Ct. 259, 72 L.Ed. 446 (1928); McGuire v.

Sigma Coatings, Inc., 48 F.3d 902, 907 (5th Cir. 1995); Way v. Mueller Brass Co., 840 F.2d 303,

306 (5th Cir. 1988)). Put simply, courts cannot exercise jurisdiction over an improperly served

defendant. Murphy Bros, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322,

143 L.Ed.2d 448 (1999); Densys Ltd. v. 3Shape Trios A/S, 336 F.R.D. 126, 129 (W.D. Tex. 2020).

Defendants argue that all claims against the SJBPSS must be dismissed in accordance with

Rule 12(b)(5) of the Federal Rules of Civil Procedure due to insufficient service of process. (Rec.

Doc. No. 12-1, p. 8). Specifically, Defendants contend that Plaintiff failed to comply with the

requirements of Rule 4 and Louisiana law, and further, that Plaintiff served only the Secretary and

cannot show that a copy of the complaint and summons was served on the School Board’s chief

executive officer, president, or vice-president. Id. at 9.

To effect service on a political subdivision such as the School Board, a plaintiff must either

serve a copy of the summons and complaint on the chief executive officer or serve the political

subdivision in compliance with state law. Fed. R. Civ. P. 4(j)(2). Louisiana Revised Statute 17:51

requires that all lawsuits against school boards “shall be served on the President of the board and

in his absence on the vice-president.” La. R.S. 17:51; Randolph v. East Baton Rouge Parish School

Board, Civ. A. No. 15-654-SDD-EWD, 2016 WL 868230, at *1 (M.D. La. Mar. 4, 2016). The

Fifth Circuit Court of Appeals of Louisiana has held that in cases involving serving a school board,

the application of La. R.S. 17:51 controls. Jackson v. St. John The Baptist Parish School Board,

13-103 (La. App. 5 Cir. 6/27/13), 121 So.3d 164, 169. Furthermore, Rule 4(m) requires that the

plaintiff serve the proper defendant within ninety days of filing the complaint with the court. Fed.

R. Civ. P. 4(m).

Plaintiff does not argue that Defendants have been properly served. Instead, Plaintiff argues

that the “interests of justice” require the complaint not be dismissed because “any purported

insufficient service can be properly cured by allowing the Plaintiff to serve the individuals as

indicated by the Defendant.” (Rec. Doc. No. 21, p. 3). Plaintiff states that the School Board is on

notice and would not be “surprised or ambushed” by the litigation. Id. at 4. Further, Plaintiff argues

that good cause exists for an extension of time to serve because he utilized two different methods

to serve the school board—both in person and via certified mail. Id.

A review of the exhibits shows that Plaintiff personally served Stacy Wallar of SJBPSS on

August 27, 2021. (Rec. Doc. No. 21-1, p. 2). The certified mail delivery was picked up at the post

office on September 22, 2021. (Rec. Doc. No. 21-3, p. 1). Defendant states that Stacy Wallar is

the secretary of the SJBPSS. (Rec. Doc. No. 12-1, p. 9). On its face, Plaintiff has failed to properly

serve SJBPSS, as the complaint and summons was not served on the chief executive officer

pursuant to Rule 4(j)(2), nor has it been served on the president or vice-president pursuant to La.

R.S. 17:51. Furthermore, the improper personal service of Stacy Wallar is the only method that

reached Defendants within 90 days of the filing of the complaint on June 3, 2021.

Rule 4(m) notes that when service is not properly made within ninety days of the complaint

being filed, courts are required to either dismiss the action without prejudice as to each defendant

not served or order that service be made within a specified time. Fed. R. Civ. P. 4(m). If the plaintiff

demonstrates good cause for the failure to timely serve process, the court must provide an

appropriate extension of time for service. Id. A showing of good cause requires, “at least as much

as would be required to show excusable neglect, as to which simple inadvertence or mistake of

counsel or ignorance of the rules usually does not suffice…” Winters v. Teledyne Movible

Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985). Further, some showing of “good faith on the

part of the party seeking an enlargement and some reasonable basis for noncompliance within the

time specified” is normally required. Id. (quoting 10 Wright & Miller Federal Practice and

Procedure: Civil § 1165 at 622).

Here, Plaintiff suggests that good cause is shown because Plaintiff attempted two different

types of service and has filed an amended complaint which can be served correctly. (Rec. Doc.

No. 21, p. 4). This does not justify good cause, as no explanation for the failure to properly follow

the rules has been shown.

The Fifth Circuit has affirmed the dismissal of many claims raising issues with good cause

determinations. In Systems Supplies v. U.S. Department of Justice, Washington, D.C., the Fifth

Circuit held that the district court did not abuse its discretion in finding that a litigant failed to

show good cause, despite the litigant’s pro se status, his multiple attempts to serve defendants

within the statutory period, and the fact that defendants had actual notice of the suit. 903 F.2d

1011, 1013-14 (5th Cir. 1990) (per curiam). In Newby v. Enron Corp., the Fifth Circuit affirmed

the district court’s dismissal despite the statute of limitations having run and rejected plaintiffs’

claims that they had good cause for delay because they were unaware of deficits in service and

were confused over the status of a bankruptcy stay. 284 Fed.Appx. 146, 149-50 (5th Cir. 2008)

(per curiam). The Fifth Circuit held that this amounted to “inadvertence, mistake of counsel, and

unfamiliarity with rules, all matters that fall short of the excusable neglect threshold.” Id. Likewise,

the Fifth Circuit upheld a district court’s finding of no good cause when plaintiffs wrongly

attempted to serve the United States Attorney by mail in July and after being notified of improper

service, failed to perfect service until December. McGinnis v. Shalala, 2 F.3d 548, 549, 551 (5th

Cir. 1993) (per curiam). Likewise, here, Plaintiff had notice of the failure to correctly serve the

School Board as early as October 2021 when the instant motion was filed informing him of

insufficient service of process. Despite that, Plaintiff has made no attempt to correctly serve the

School Board to cure any defects, almost nine months later. Further, two incorrect attempts at

service illustrate “inadvertence, mistake of counsel, and unfamiliarity with the rules,” which the

Fifth Circuit has held “fall[s] short of the excusable neglect threshold.” See Newby, 284 Fed.Appx.

at 149-50.

Accordingly, the Court finds that Plaintiff has failed to properly serve SJBPSS, and the

Court uses its discretion to dismiss all claims against SJBPSS without prejudice pursuant to

12(b)(2) an 12(b)(5) of the Federal Rules of Civil Procedure.

b. Plaintiff’s Concessions

Plaintiff acknowledges that dismissal of claims under Title VII and La. R.S. 42:1169

against coworkers and supervisors is likely appropriate, specifically with regard to Mr. Mayes and

Mr. Brown.

i. Title VII Claims Against Co-Workers

Title VII states that “[i]t shall be an unlawful employment practice for an employer … to

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). Mr. Julien alleges a cause of action against SJBPSS, Mr.

Brown, and Mr. Mayes. (Rec. Doc. No. 1). Defendants move to dismiss the Title VII claims against

the individual defendants in both of their capacities. (Rec. Doc. No. 12, p. 7-8). Plaintiff concedes

that dismissal against Mr. Brown and Mr. Mayes may be appropriate as Plaintiff’s co-worker and

supervisor respectively. (Rec. Doc. No. 21, p. 3).

The Fifth Circuit has long held that individuals are not liable under Title VII in either their

individual or official capacities. Ackel v. National Communications, Inc., 339 F.3d 376, fn. 1 (5th

Cir. 2003) (citing Smith v. Amedisys Inc., 298 F.3d 434, 448-49 (5th Cir. 2002)). “[T]itle VII does

not permit the imposition of liability upon individuals unless they meet title VII’s definition of

‘employer.’” Beasley v. St. Tammany Parish School Bd., 1997 WL 382056, at *2 (E.D. La. Jul. 9,

1997) (quoting Grant v. Lone Star Co., B.L., 21 F.3d 649, 653 (5th Cir. 1994)). Relief under the

statute is only available against an employer, not an individual supervisor or fellow employee.

Bowie, 2021 WL 53312, at *6 (citing Umoren v. Plan Indep. Sch. Dist., 457 F. App’x 422, 425

(5th Cir. 2012)). The term employer means “a person engaged in an industry affecting commerce

who has fifteen or more employees for each working day in each of twenty or more calendar weeks

in the current or preceding calendar year, and any agent of such a person…” 42 U.S.C. § 2000e(b).

The Fifth Circuit has explained that:

While Title VII defines the term employer to include ‘any agent’ of an employer, this

circuit does not interpret the statute as imposing individual liability for such a claim.

Congress’s purpose in extending the definition of an employer to encompass an agent in

Section 2000e(b) was simply to incorporate respondeat superior liability into Title VII.

Thus, a Title VII suit against an employee is actually a suit against the corporation.

Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999) (internal citations omitted).

Here, Mr. Julien does not allege that Mr. Mayes or Mr. Brown were his employer, and the

complaint explicitly names SJBPSS as his employer. (Rec. Doc. No. 1). The complaint further

states that Mr. Mayes was an immediate supervisor and Mr. Brown was a co-worker. Id. Thus,

any Title VII claims against Mr. Mayes or Mr. Brown are dismissed with prejudice in both their

personal and official capacities.

ii. Claims Under La. Rev. Stat. § 42:1169

Louisiana Revised Statute § 42:1169 governs and provides:

Any public employee who reports to a person or entity of competent authority or jurisdiction

information which he reasonably believes indicates a violation of any law or of any order, rule,

or regulation issued in accordance with law or any other alleged acts of impropriety related to

the scope or duties of public employment or public office within any branch of state

government or any political subdivision shall be free from discipline, reprisal, or threats of

discipline or reprisal by the public employer for reporting such acts of alleged impropriety.

La. Rev. Stat. § 42:1169(A). “An employee’s remedy under the Code of Governmental Ethics is

through the Board of Ethics.” Collins v. State ex rel. Dep’t of Nat. Res., 2012-1031 (La. App. 1

Cir. 5/30/13), 118 So. 3d 43, 47); see La. Rev. Stat. § 42:1169(B)(1)(a). Section 42:1169 “does

not provide an independent right of action, rather, it relies upon other statutes to provide a right of

action.” Collins, 2012-1031 (La. App. 1 Cir. 5/30/13), 118 So. 3d 43, 48.

Here, Plaintiff attempts to invoke § 42:1169 as a basis for a cause of action against

Defendants. (Rec. Doc. No. 1). Defendants argue that the claim must be dismissed because there

is no private right of action under § 42:1169. (Rec. Doc. No. 12, p. 6). Plaintiff concedes that this

is so. (Rec. Doc. No. 21, p. 3). Thus, the Court finds that Mr. Julien’s claims against Defendants

under Louisiana Revised Statute § 42:1169 must be dismissed because there is no independent

cause of action under the statute. See, e.g., Bowie v. Hodge, 2021 WL 53312, at *9 (E.D. La. Jan.

6, 2021) (“The court finds that [Plaintiff’s] claims against the defendants under Louisiana Revised

Statute § 42:1169 must be dismissed because there is no independent cause of action under that

statute.”).

c. Time-Barred Claims

Finally, Defendants move pursuant to Rule 12(b)(6) to dismiss the Title VII and Louisiana

whistleblower claims alleging that they are time-barred. (Rec. Doc. No. 12-1, p. 3). Defendants

maintain that the Title VII claims are subject to the 300-day filing deadline, and that this complaint

was filed outside the 300-day filing deadline.5 Id. at 3-4. Defendants also contend that the

Louisiana whistleblower claims were not timely filed, as they are subject to the Louisiana “general

one-year prescriptive period.” Id. at 5. 6

The Louisiana Whistleblower statute provides that “An employer shall not take reprisal

against an employee who in good faith, and after advising the employer of the violation of

law…discloses or threatens to disclose a workplace act or practice that is in violation of state law.”

5 The Court does not address Defendants’ arguments related to whether Plaintiff’s Title VII claims are time-barred, as

the Court has already determined that all claims against SJBPSS are dismissed without prejudice for improper service

pursuant to Rules 12(b)(5) and 12(b)(2). The Court has also determined that any Title VII claims against Mr. Mayes

or Mr. Brown are dismissed in both their personal and official capacities. This Order does not address the claims

remaining against Lynett Hookfin, as they were not raised in the instant motion.

6 The Court has already dismissed Mr. Julien’s claims under La. R.S. 42:1169, thus, the Court will not address whether

or not that claim is time-barred here.

La. Rev. Stat. § 23:967(A)(1). There is no prescriptive period specifically set out within the statute.

Louisiana courts typically apply the general one-year statute of limitations to these claims.

Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 01-175, p. 12 (La. App. 5 Cir. 6/27/01); 790

So.2d 725, 733 (“Absent any specification within [§ 23:967], [the] cause of action … is subject to

the general one-year prescriptive period for delictual actions.”); see also Langley v. Pinkerton’s

Inc., 220 F.Supp.2d 575, 581 (M.D. La. 2002). Further, there is no six-month tolling provision in

the event of an administrative investigation. La. Rev. Stat. Ann. § 23:967; Langley, 220 F.Supp.2d

at 581. Thus, claims based on violation of La. R.S. 23:967 prescribe one year from the date when

the plaintiff knew of the violation. Price v. PCS Nitrogen Fertilizer, LP, Civ. A. No. 03-153-RET-

DLD, 2010 WL 1005181, at *3 (M.D. La. Mar. 15, 2010).

Plaintiff argues that the whistleblower claims are not time barred because they are subject

to the continuing tort doctrine, arguing that here, there is “no doubt” that Defendants had a

continuing duty to the Plaintiff. He also contends that the transfer from East St. John High School

to preparatory school “on or about” October 29, 2021, could be considered a reprisal within the

meaning of the statute such to constitute a continuing tort. (Rec. Doc. No. 21, p. 2-3). Defendants

argue in response that this claim is meritless because the tort alleged was not continuous, and

furthermore, the transfer of Plaintiff was done by Dr. Hookfin, not Mr. Mayes or Mr. Brown. (Rec.

Doc. No. 25, p. 4).

Under Louisiana law, “[w]hen tortious conduct and resulting damages are of a continuing

nature, prescription does not begin until the conduct causing the damages is abated.” Williams v.

Otis Elevator Co., 557 Fed.Appx. 299, 301 (5th Cir. 2014) (per curiam) (quoting First Nat’l Bank

v. Smith, 29-350, p. 4 (La.App. 2 Cir. 4/2/97); 691 So.2d 355, 358). For the continuous tort doctrine

to apply, “the operating cause of the injury [must] be a continuous one which results in continuous

damages.” Id. (quoting Crump v. Sabine River Auth., 98-2326, p. 7 (La. 6/29/99); 737 So.2d 720,

726). The continuous nature of the conduct complained of has the dual effect of rendering such

conduct tortious and of delaying the commencement of prescription. Price, 2010 WL at *3. For

the continuing tort doctrine to apply, three requirements must be met: a continuing duty owed to

plaintiff, a continuing breach of that duty by defendants, and a continuing injury or damages arising

day to day. McDonnel Group, LLC v. DFC Group, Inc., Civ. A. No. 19-9391, 2021 WL 1088126,

at *7 (quoting Alexander v. La. State. Bd. of Private Investigator Examiners, 2015-0537 (La. App.

4 Cir. 2/17/17), 211 So. 3d 544, 557) (internal quotation omitted). Louisiana courts have found the

continuing tort doctrine applicable only in narrow circumstances, “[w]here the operating cause of

injury is a continuous one and gives rise to successive damages.” Crump v. Sabine River Auth.,

98-2326 (La. 6/29/99), 737 So. 2d 720, 726. By contrast, “[w]hen the operating cause of the injury

is ‘not a continuous one of daily occurrence’, there is a multiplicity of causes of action and of

corresponding prescriptive periods.” Id.

Notably, Plaintiff does not cite to any case to support his claim that the continuing tort

doctrine applies in this case. Specifically, the Court notes that Plaintiff has failed to show how the

conduct was “continuous.” The last alleged act of retaliation by Mr. Brown and Mr. Mayes

occurred on September 13, 2019, when Mr. Julien was removed as head basketball coach. The

complaint in this case was filed on June 3, 2021. (Rec. Doc. No. 1). In his amended complaint,

Plaintiff states that Lynett Hookfin transferred him from his position at East St. John High School

to East St. John Preparatory School on October 29, 2021. (Rec. Doc. No. 28). This occurred over

two years after the last alleged act of retaliation at the hands of Mr. Brown and Mr. Mayes,

suggesting that this was not a continuing tort occasioned by continual unlawful acts. See Williams

v. Otis Elevator Co., 557 Fed.Appx. 299, 301-02 (5th Cir. 2014). Accordingly, the Court finds that

the continuing tort doctrine does not apply here, and Mr. Julien’s La. R.S. 23:967 claims against

Mr. Brown and Mr. Mayes are time-barred and dismissed with prejudice.

d. Punitive Damages

Finally, Defendants argue that Mr. Julien is not entitled to punitive damages, because

although Title VII authorizes punitive damages in discrimination cases, that rule does not apply

when the defendant is a government, government agency, or political subdivision. (Rec. Doc. No.

12-1, p. 11). Defendants contend that the School Board is a political subdivision, thus, it is exempt

from a claim for punitive damages. Id. Plaintiff contends that no cases cited by Defendant speak

to whether or not a School Board is exempt, and that the statute specifically authorizes punitive

damages, thus, Plaintiff contends he is entitled to recover punitive damages. (Rec. Doc. No. 21, p.

5).

Congress has made clear that Title VII does not provide for punitive damages from a

government agency. 42 U.S.C. § 1981a(b)(1) (excluding a government, government agency, or

political subdivision from punitive damage liability). A review of cases in this circuit indicates

that a school board is a “governmental agency” exempt from punitive damage liability under Title

VII. See, e.g., Hunter v. Jefferson Parish Public Sch. System, 2017 WL 2910992, at *10 (E.D. La.

Jul. 7, 2017) (citing Pollard v. Hinds Cty., 2014 WL 5324384, at *2 (S.D. Miss. Oct. 17, 2014));

Beasley v. St. Tammany Parish Sch. Bd., 1997 WL 382056, at *4 (E.D. La. Jul. 9, 1997)

(dismissing plaintiff’s claims for punitive damages from school board). Thus, should Mr. Julien

attempt to state a claim for punitive damages against the School Board under Title VII moving

forward, such a claim is foreclosed to him.

V. CONCLUSION

Accordingly,

IT IS ORDERED that the Rule 12(b)(6), 12(b)(5), and 12(b)(2) Motion to Dismiss

Complaint (Rec. Doc. No. 12)is GRANTED. All claims against St. John the Baptist Parish School

System are DISMISSED WITHOUT PREJUDICE. All claims against Christopher Mayes and

Brandon Brown are DISMISSED WITH PREJUDICE. Finally, any claim for punitive damages

is DENIED. All claims against Dr. Hookfin and counterclaims against Mr. Julien remain.

New Orleans, Louisiana, this 7th day of July, 2022.

{ laug ™M. Quel

DANA M. DOUGLAS

UNITED STATES MAGISTRATE JUDGE

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