Goings v. Lopinto

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TYLER GOINGS CIVIL ACTION

VERSUS NO. 22-2549

JOSEPH P. LOPINTO, III DIVISION “5”

ORDER AND REASONS

Before the Court is the Rule 12(b)(6) Motion to Dismiss filed by Defendant, Joseph P.

Lopinto, III. (Rec. doc. 6). Plaintiff, Tyler Goings, opposes the motion (rec. doc. 10), and

Defendant filed a reply. (Rec. doc. 13). Having reviewed the pleadings and the case law, the

CI.o urt rBulaecsk agsr fooullnodws.

Tyler Goings initially began working for the Jefferson Parish Sheriff’s Office (“JPSO”)

as a Deputy in or around October of 2017, and he resigned effective January 1, 2019. (Rec.

doc. 1 at p. 3). Goings rejoined JPSO in or around April of 2019 and remIadi.ned employed until

he resigned effective May 6, 2021 due to alleged sexuaIld h. arassment. ( ). As of the date of

his separation, he was classified as a Deputy Level 3. ( ).

Goings’ Complaint alleges the following: Goings began to suffer from a pervasive

pattern of unwelcome, explicit comments, suggestions, and questioning by his supervisor,

Sergeant Edward Lee Hardy, after Hardy vieIwd.ed a photograph of a shirtless Goings wrestling

with another male coworker from 2018. ( ). Hardy perceivIde.d and believed Goings to be

homosexual and targeted him with harassment as a rIeds.ult. ( ). After obtaining a copy of

the photograph, Hardy published it to other officers. ( ). Hardy referred to Goings and the

male coworkeIdr . shown in the subject photograph as “gay,” “fags,” “butt pirates,” and

“husbands.” ( ). More offensive and explicit remarks followed.

Goings wIda.s to be married in October 2019, and he invited some of his co-workers to

the wedding. ( ). At the time of his wedding, GoinIdg.s was assigned to the night watch but

wanted to be transferred to the morning shift. ( ). Hardy found out that a SergeIadn. t

Voorhies was invited to Goings’ wedding and began to pressure Goings for an invite. ( ).

Hardy told Goings tIhda.t he would get him transferred to the morning shift if he was invited to

Goings’ wedding. ( ). Goings acquiesced aIdn.d invited Hardy to his wedding, which resulted

in additional harassment and bullying. ( ). While at Goings’ wedding, Hardy sexIuda.lly

harassed Goings, going so far as to grab Goings’ buttocks, which was photographed. ( at

pp. 3-4).

After his wedding, Hardy micromanaged Goings and questioned his work in additioIdn.

to subjecting Goings to homophobic and sexually explicit comments and text messages. (

at p. 4). GoinIdg.s eventually approached his supervising Lieutenant to complain about Hardy’s

behavior. ( ). Goings was advised that he would be punished for breakinIgd .the chain of

command, which discouraged Goings from filing a complaint against Hardy. ( ).

The events ultimately escalated and in or about December 2020 to January 2021,

Goings lodged an anonymous complaint to Internal AffairsI do.f the JPSO about the sexual

harassment and discrimination he received from Hardy. ( ). Internal Affairs failed to

respond to Goings’ request to investigate his complIadin. t but put out a blanket statement to all

supervisors advising against sexual harassment. ( ). Goings also repeatedly complained

about the harassment to his supervisors, Captain Larry Dyess (“Capt. Dyess”) and Lt.

Id.

Geautreaux. ( ). NIedit.her superior attempted to remedy the situation or correct the alleged

conduct by Hardy. ( ).

Hardy learned of GoinIdg.s’ anonymous complaint and intensified his pattern of

harassment and retaliation. ( ). Hardy’s retaliatory behavior was in response to Goings’

protected reports and was deIsdig.ned to dissuade Goings, and any other deputies, from lodging

further protected reports. I(d. ). After being subjected to this work environment, Goings

submitted his resignation. ( at p. 5)I. d G.oings alleges that he left due to harassment, a hostile

work environment, and retaliation. ( ).

Goings further alleges that he was treated Idle.ss favorably than other comparable

employees that are outside of his protected class. ( ). He maintains that Deputy Brandon

Savage, a heterosexual male who was not perceived as homosexual, committed several actual

vIido.lations of policy similar to those for which Goings was disciplined, without reprimand.

( ). Moreover, he alleges that Deputy Melissa Elliot, a heterosexual female, had a romantic

relationship with Hardy, and ultimately receIdiv.ed a transfer after making a report of sexual

harassment and retaliation against Hardy. ( ).

On or about October 12, 2021, Goings filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (“EEOC”). On May 9, 2022, the EEOC issued Goings a

Notice of Right to Sue.

On August 7, 2022, Goings filed this lawsuit against Joseph P. Lopinto, III in his

capacity as Sheriff of Jefferson Parish. Goings seeks a declaratory judgment, equitable relief,

and monetary damages to secure the protection against and to redress unlawful

discrimination on the basis of gender and retaliation under Title VII of the Civil Rights Act of

et. seq.

1964, 42 U.S.C. § 2000e , as amended (“Title VII”), and the Leotu siesiqa.na Employment

DIIi. scrimSitnaantidoanr Lda owf Rcoedviifeiewd: aRsu Lloeu 1is2i(abn)a( 6R)e vised Statutes §§ 23:332 and 51:2256.

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must cAonshtacrino fat

“vs. hIqobrat land plain statement of the claim showing that the pleader is entitled to relief.”

, 556 U.S. 662, 678-79 (2009) (citing Fed. R. Civ. P. 8). “[T]he pleading standard Rule

8 announces does not require ‘detailed factual allegations,’ but Iidt .demands more Bthealln A atnl.

Cuonrapd.o vr. nTewdo, mthbel-ydefendant-unlawfully-harmed-me accusation.” at 678 (citing

, 550 U.S. 544, 555 (2007)).

If a defendant perceives a plaintiff’s complaint to be deficient under Rule 8(a)(2), Rule

12(b)(6) of the Federal Rules of Civil Procedure allows that party to move for dismissal of a

complaint for failure to state a claim upon which rSeeliee Lf ocwanr ebye v g. rTaenxt. eAd .& SMu cUhn aiv .m Soytsi.on is

rarely granted because it is viewed with Kdiasifsaevro Ar.l u minum & Chem. Sales, Inc. v. Avon, d1a1l7e

FSh.3ipdy 2ar4d2s,, 2In4c7. (5th Cir. 1997) (quoting

, 677 F.2d 1045, 1050 (5th Cir. 1982)).

In considering a Rule 12(b)(6) motion, the Court “accept[s] alSl ewe eTlhl-opmlepasdoend v f.a Ccittsy aosf

tWruaec oa,n Tde xv.iew[s] all facts in the light most favorable tDoo teh eex p rleali.n Mtiaffg.”e e v. Covington Cnty. Sch.

Dist. ex rel,. 7K6e4y sF.3d 500, 502 (5th Cir. 2014) (citing

, 675 F.3d 849, 854 (5th Cir. 2012) (en banc)). But, in deciding whether

dismisIdsa. l is warranted, thIeq Cboaulrt will not accept conclusory allegations in the complaint as

true. at 502-03 (citing , 556 U.S. at 678).

To survive dismissal, “‘a complaint must contain sufGfiocnieznalte fza cvt. uKaaly matter, accepted as

true, to state a claim to reIlqibefa tlhat is plausible on its face.’” , 577 F.3d 600, 603

(5th Cir. 2009) (quoting , 556 U.S. at 678) (internal quotation marks omitted). “Factual

allegations must be enough to raise a right to relief above the speculative level, on the

aTswsoummbpltyion that all the allegations in the complaint are true (even if doubtful in fact).”

, 550 U.S. at 555 (citations and footnote omitted). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the courItq tboa ldraw the reasonable

inference that the defendant is liable for the misconduct alleged.” , 556 U.S. at 678 (“The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.”). This is a “context-specific taskI dth. at

requires the reviewing court to draw on its judicial experience and common sense.” at

679. “Where a complaint pleads facts that are merely consistent with a defendant's liabIidli.ty,

it stops short of the line between possibility aTnwdo mplbaluysibility of entitlement to relief.” at

678 (internal quotations omitted) (citing , 550 U.S. at 557). “[A] plaintiff's

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’” thus “requires more than

labelsT wanodm cbolnyclusions, and a formulaic recitation of the elements of a cause of action will not

do.” , 550 U.S. at 555 (alteration in original) (citation omitted).

Finally, “[w]hen reviewing a motion to dismiss, a district court ‘must consider the

complaint in its entirety, as well as other sources ordinarily examined when ruling on Rule

12(b)(6) motions to dismiss, in particular, documents incorporatFeudn ikn tvo. Stthrey kceorm Cpolrapi.nt by

reference, and matters of which a courTt emllaaby st,a Iknec. jvu. dMicaikaol rn Iostsiucees.” & Rights, Ltd. , 631

F.3d 777, 783 (5th Cir. 2011) (quoting , 551 U.S. 308,

322 (2007)). If the Court considers materials outside of the pleadings, thSee em Coatiuosne yt ov d. iSsemwieslsl

mCaudsitll abce- Ctrheeavtreodle ta,s Ian cm. otion for summary judgment under RPuhleo e5n6i.x on behalf of S.W. v.

Lafourche Par. Gov't , 394 F.3d 285, 288 (5th Cir. 2004); see

also , No. CV 19-13004, 2021 WL 184909, at *3-4 (E.D. La. Jan. 19, 2021);

III. FedL.a Rw. Cainvd. P A. n12a(lyds).i s

A. Prescriptio n – Federal Claims

In Louisiana, an EEOC charge of disCcorinmnienra vt.i Loan. Dmeups'tt obfe H feilaeldth w &i tHhoinsp 3s.00 days after

the alleged unlawful employment practice. , 247 F. App'x

480, 481 (5th Cir. 2007). Defendant contends that Goings has not alleged any harassing or

discriminatory conduct within the 300 days before his filing of the EEOC charge. Defendant

argues that Goings’ claims for hostile work environment and discrimination are untimely

because his EEOC charge of discrimination was filed on October 12, 2021, and Goings alleges

no discriminatory or hostile behavior after December 16, 2020, the 300th day before he filed

his EEOC charge.

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

evident from the plaintiff's pleadingsJ othnaest tvh. eA alccotiao, nI nisc .barred and the pleadings fail to raise

some basis for tolling or the like." , 339 F.3d 359, 366 (5th Cir. 2003).

When a defendant moves under Rule 12(b)(6) to dismiss a plaintiff’s claim, the statute of

limitations may suTpuptourst vd.i JsLmGi sInsadlu “sw. here it is evident from the plaintiff’s pleadings that the

action is barred.” Clea, nC iEvn. Aer. gNyo v. .4 T:2ri0ll-icuvm-4 T2r3a1n, s2p0. 2F1u eWlsL, L 2.L9.5C4. 423, at *4 n. 4

(S.D. Tex. June 21, 2021) (citing , CV H-19-244,

report and recommendation adopted

2020 WL 7049143, at *1 (S.D. Tex. Nov. 9, 2020)), , Civ.

A. No. 4:20-CV-4231, 2021 WL 2954067 (S.D. Tex. July 14, 2021). Courts have found that

the issue of a statute-of-limitations bar is more appropriately resolved on summary

judgment when the complaHinStB dCo Beasn nko Ut ScoAn, Nclauts'ilv Aeslys' ne sftoarb Olipshti othna Ot nthe eM colaritmg. sL aoraen b Tarr.r 2e0d0 b7y-

HthLe1 s, tAastsuette-B oafc lkimedi tCaetriotinfisc.a tes, Series 2007-HL1 v. TFHSP, L.L.C.

, Civ. A. No. 4:17-CV-542-ALM-

CAN, 2017 WL 8727601, at *5 (E.D. Tex. Dec. 14, 2017) ("Where a statute of limitations

defense raised in a motion to dismiss requires factual determinations and the evidence

concerning those determinations is unclear, such an affirmative defense is properly

considered at the summary judgment stage, when the parties' arguments can be considered

along with competent summary judgment evidence.").

As noted above, at the motion-to-dismiss stage, a court “must accept all well-pleaded

facts alleged in the complaint as UtrSuTe- Manadm miyau,s Itn cco. nvs. tTrruuee t Shpeo arltlse, gIantci.ons in the light that is

most favorable to the plaintiJf&f.J” S ports Prods., Inc. v. Live Oak Cnty. Pos,t 4N4o1. 6F1. 1S9u pVpe.t e3rda n3s8 o2f,

3Fo8r7e (igNn.D W. Taresx. 2020) (citing

Cent. Laborer,s 'C Pive.n Asi. oNno F. Cun-0d8 v-.2 I7n0te, g2r0a0t9e dW ELle 4c8. S3e1r5v7s., at *3 (S.D. Tex. Feb. 24, 2009) (quoting

, 497 F.3d 546, 550 (5th Cir. 2007)).

While the parties make much about what constitutes a discrete act, what does not

constitute a discrete act, and what constitutes a continuing violation for purposes of a sex

discrimination and/or hostile work environment claim, this Court finds that it is all much

ado about nothing. Goings alleges specific allegations of harassment as late as February

2021, when Hardy forced him to stand in the cold for a vehicle inspection while allowing all

other officers to remain in their vehicles. (Rec. doc. 1 at p. 4). While Defendant argues that

this harassment – if indeed it was harassment – must be based on sex to satisfy Goings’

claims, this Court cannot state at this stage of the litigation that this “harassment” was not

based on the sexual animosity that Hardy had displayed toward Goings in the past. Goings

did not resign due to hIdar.assment until May 6, 2021, consistently alleging harassment by

Hardy until that date. ( at p. 3). October 12, 2021 is within 300 days of May 6, 2021. This

is a motion to dismiss – resolved solely on the pleadings – and not a motion for summary

judgmeBn.t . DisHmoissstaille o fW thoerske Ecnlavimirso nonm tehnet basis of prescription is unwarranted at this stage.

Defendant also argues that Goings has failed to state a claim for a hostile work

environment under federal and state law. Title VII of the Civil Rights Act of 1964 prohibits

an employer from discriminating “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). A plaintiff may establish a

violation of Title VII bSye pe rMoveirnitgo trh Saat vd.i sBcarnimk,i nFaStBio vn. bVainsseodn on sex created a hostile or Bablaucski vve.

wZaorrikn ge Hnvoimroens,m Inecn.t. , 477 U.S. 57, 66 (1986);

1

, 104 F.3d 822, 825 (6th Cir.1997). Sex discrimination in this form occurs

McDonnell Douglas Cicalese

1v. Univ. of Tex. Med. Branch

For purposes of a motion to dMismcDiossn,n tehlils D Coouugrlta dsoes not employ the framework.

Raj, 9v.2 L4a F. S.3tadt 7e 6U2n,i v7.66 (5th Cir. 2019). “[A] plaintiff need not make out a prima facie

case of discrimination [under ] in order to survive a Rule 12(b)(6) motion to dismiss for

Ifadi.lure to state a claim.” , 714 F.3d 322, 331 (5th Cir. 2013). A district court therefore errs

by requiring “a showing of each prong of the prima facie test for [sexual harassment] at the pleading stage[.]”

But the Fifth Circuit has also explained that, although plaintiffs do not “hCahvheim to v s.u Ubnmivi.t oefv iTdeexn. caet tAou esstitnablish

a prima facie case of discrimination at this stage, [they must] plead sufficient facts on all of the ultimate

elements of a [sexual harassment] claim to make [their] case plausible.” , 836

F.3d 467, 470 (5th Cir. 2016).

“[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to altHera rthries cvo. nFdoritkiloifnts S oyfs t.,h Ien cv.ictim’s employment and

create an abusive working environment.” , 510 U.S. 17, 21 (1993)

(citations and internal quotations marks omitted). In same-sex sexual harassment cases, the

Fifth Circuit has held that a two-step inquiry must be applied: (1) whether the alleged

conduct was sex discrimination andN (e2w)b wuhrye tvh. eCrit tyh oef aWlleingdecdr ecsotn, dTuexc.t meets the standard for

a hostile work envEir.Eon.Om.Ce. nvt. Bcloahim B.r others Constr. Co. , 991 F.3d 672, 676 (5th

Cir. 2021) (citing , 731 F.3d 444, 453 (5th Cir. 2013) (en

banc)). The Supreme Court has noted that “[c]ommon sense, and an appropriate sensitivity

to social context, will enable courts and juries to distinguish between simple teasing or

roughhousing among members of the same sex, and conduct which Ha arreraissonable person in

the plaintiff's position would find severely hostile or abusive.” , 510 U.S. at 21

(citations and internal quotations marks omitted).

Defendant maintains that Goings cannot maintain a claim for a hostile work

environment because his allegations do not reveal that Hardy was hoNmguoyseenx uva. Bl ourc hmaortti-vHaotrend,

bInyc a. sexual desire towards him. This argument misses the point. In

, this Court held “that the Supreme Court did not foreclose the poOssnicbailleityv o. Sf usnadmoew-sneexr

Ohaffrsahsosrme eSnert vws.here the harasser is not homosexual. There is nothing in [

, 523 U.S. 75 (1998)] to prevent a plaintiff from claiming same-sex harassment

where the harassment is motivated by hostility based on the victim's sexual orientation.

‘[H]arassing conduct need not be motivated by sexual desire to support an inference of

discrimination on theO bnacsaisle of sex.’” No. Civ. A. 02-1998, 2003 WL 21674461, at *3 (E.D. La.

July 15, 2003) (citing , 523 U.S. at 80).

NewburAy vp. lCaiitnyt iofff Wmianyd csreusptp, Toertx .a harassment claim with evidencCea mofm saecxk- svt. eLrae.o Dtyepp'itn ogf.

Health , 991 F.3d 672, 675 (5th Cir. 2021);

, No. CV 18-3614, 2018 WL 6831103, at *3 (E.D. La. Dec. 28, 2018) (“Actionable sex

discrimination under Title VII includes discrimination against those who do not conform to

sex or gender stereotypes.”). Discrimination on the basisB oofs tsoecxku va. lC olaryietnonta Ctinotny,. including

perceived sexual orientation, is prohibited under Title VII. , 140 S. Ct.

1731, 1754 (2020). Goings explicitly alleges in his complaint that Hardy perceived and

believed that he was homosexual. (Rec. doc. 1 at p. 3). Additionally, Goings alleges that

Hardy directed language and slurs Ida.t Goings, specifically slurs and derogatory terms

targeting homosexual individuals. ( ). These terms were obviously targeted at Goings

perceived sexual orientation and sex-stereotyping. Taking these allegations as true and

construed in a light most favorable to Goings, he has adequately pleaded that the basis of the

harassment by Hardy was his perceived sexual orientation.

Defendant argues that Goings must pursue one of three evidentiary paths to establish

sex discrimination. Defendant maintains that a plaintiff in a same-sex sexual harassment

case may establish discrimination because of sex by showing: (1) “the alleged harasser made

‘explicit or implicit proposals of sexual activity’ and [by] provid[ing] ‘credible evidence that

the harasser was homosexual;’” (2) “the harasser was ‘motivated by general hostility to the

presence of [members of the same sex] in the workplace;’” or (3) “‘direct, comparative

evidence about how the alleged harasser treated members of both sexes in a mixed-sex

Williams v. Waffle House

workplace.’” Love v. Motiva, N Eon.t Ceirvs.. AL..L 1.C0.-357-ME, 2010 WL 4512819, at *3 (M.D.

La. Nov. 2, 2010) (citing , 349 F. App’x 900, 902 (5th Cir. 2009)).

But this is a summary judgment “evidentiary” staSnedea Nrde,w nboutr yth ve. Csittayn odfa Wrdi nudscerde stto, Tdeexc.ide a

Rule 12 motion to dismiss at the pleadings stage. , 991

F.3d 672, 676 (5th Cir. 202 L1o)v e(citing the aforementioned evidentiary requirements at the

summary judgment stage); , 349 F. App’x at 902 (same).

Defendant also argues that Goings fails to allege whether the alleged discprirmiminaa ftaocriye

conduct meets the standard for a hostile work environment claim. To establish a

case under Title VII for a hostile work environment claim based on harassment and

discrimination, Goings must eventually prove five elements: (1) that he belongs to a

protected class or was engaged in a protected activity; (2) that he was subject to unwelcome

harassment; (3) that the harassment was based on sex or sexual orientation; (4) that the

harassment affected a ‘term, condition or privilege of employment;’ and (5) that the

employeDre kAnnegwel iosr v s. hEol uPlads oh aMvuen k. nPoowlicne oOf ftfhicee rhsa Arasss'snment and failed to take prompt remJeodnieasl

av.c tFiloang.s hip Int'l , 51 F .3d 591, 593 (5th Cir. 1995);

, 793 F.2d 714, 719-20 (5th Cir. 1986). To determine whether a workplace

constitutes a hostile work environment, courts consider the following circumstances: the

frequency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive uLtytleersa vn.c Tee; xaansd A wlchoehtohle Br eivt eurnargeea Csoonmambl'ny interferes with an

employee's work performance.” , 379 F. App'x 380,

384 (5th Cir. 2010). Simple teasing, offhand comments, and isolated incidents (unless

extremely serious), however, are not enough to establish a hostile work environment claim.

Turner v. Baylor Richardson Med. Ctr.

, 476 F.3d 337, 347-48 (5th Cir. 2007). The conduct at

issue must not merely be tinged with oEf.fEe.nOs.Civ. ev . sBeoxhu aBlr ocso. nCnoontsattri.o Cnos., Lb.uLt.C m. ust actually

constitute discrimination because oLf as eDxa. y v. Catalyst Tech. Inc. , 768 F. Supp.

2d 883, 890 (E.D. La. 2011) (citing , 302 F.3d 474, 478 (5th Cir.

2002)).

Defendant maintains that Goings’ allegations of harassment are vague and conclusory

and cannot satisfy the pleading requirement for a hostile work environment claim. This

Court finds otherwise. Goings sufficiently pleads that he is a member of a pBroostteocctked class

based on Hardy’s perception of his sexual orientation. (Rec. doc. 1 at p. 3); , 140 S.

Ct. at 1754. The first element is thus satisfied. As to the second element, Goings alleges he

has suffered unwelcome harassment throughout his employment with Defendant. Goings

need only allege that he has suffered continuous incidents of discrimination and harassment

based on Hardy’s perception of his sexual orientation. (Rec. doc. 1 at pp. 3-4).

The third element is also properly pleaded. Goings claims that Hardy targeted his

harassment and discriminIadt.ory conduct at him based on his perception and belief that

Goings was homosOexnucaall.e ( at p. 3). As noted above, this Court has held that the Supreme

Court’s holding in does not preclude a plaintiff from claiming same-sex harassment

wNghueyne nthe harassment is motivateds ebey a lhsoos Btiolisttyo cbkased on the victim’s sexual orientation.

, 2003 WL 21674451, at *9; , 140 S. Ct. at 1754. “Harrassing conduct

need not Obnec maloetivated by sexual desire to support an inference of discrimination on the basis

of sex.” , 523 U.S. at 80. Hardy allegedly and consistently used specific derogatory

language and slurs referring to homosexual individuals. (Rec. doc. 1 at p. 3). In addition to

these comments, Goings has alleged that the adverse employment actions materially affected

his conditions of employment. Goings was transferred to a less desirable shift, given falsified

wIdri.tten reprimands, suspended and lost pay, and was denied a promotion to the vice unit.

( at pp. 4-5). Moreover, Defendant knew of this harassment because Goings complained

about it to his supervising LieuteIdn.ant, Captain Larry Dyess, Lieutenant Geautreaux, and to

the Internal Affairs of the JPSO. ( at p. 4). None of these entities or individuals took action

based on Goings’ complaints. For purposes of a motion to dismiss, the Court finds the

allegatiCo.n s in tSheex c Domiscprlaiminitn saattiiosfnactory to support a claim for hostile work environment.

prima face

To state a case of sex discrimination, Goings must allege that he (1) is a

member of a protected group; (2) was qualified for the position at issue; (3) suffered an

adverse employment action by Defendant; and (4) was replaced by someone outside of his

protected group or was treaHteadir ele vs. sB dfa. voof rSaubpleyr vtihsaonrs ootfh Lear. Sstiamteil aUrnlyiv .s Aitguraitce. d& Memecphlo. Cyoelels.

outside the protected group. ,

719 F.3d 356, 363 (5th Cir. 2013). Defendant contends that Goings merely recites the

aforementioned elements of a discrimination claim without alleging any specific facts that

would arguably render his claim plausible on its face. Specifically, Defendant notes that

Goings vaguely refers to discrimination in his come.pgl.aint without providing any details to

establish that he can plausibly allege such claims, , “. . . Hardy began discriminating and

harassing Goings. . .;” “Defendant also discriminated against Goings on the basis of his sex

because he was treated differently than other similarly situated employees outside of his

protected class;” and Goings “was treated more harshly, targeted, scrutinized, and/or

disciplined more severely than other similarly situated employees whom JPSO did not

perceive to be homosexual.” (Rec. doc. 1 at pp. 3, 6). Defendant maintains that the law

rAesqhucriroefts “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

, 556 U.S. at 677.

This Court has already concluded that Goings is a member of a protected class. In

addition, Defendant does not appear to dispute that Goings was qualified for the promotion

to the vice unit.

Defendant does dispute, however, that Goings has alleged an adverse employment

action. An “adverse employment action” under TiTtlheo VmIpI siosn “ avn. C eitmy polfo Wymaceon,t T deexc.ision that

affects the terms and conditions of employment.” , 764 F.3d

500, 503 (5th Cir. 2014). “[A]dverse employment actions consist of ‘ultimate employmeIndt.

decisions’ such as hiring, firing, demoting, promoting, granting leave, and compensating.”

at 503. Transfers, reassignments, oIrd a. material chAalnlegne vi.n H jaomb mreosnpdo nCsitiby iPliotileicse m Daeyp 'qtualify if

they are equivalent to a demotion. at 303-05; , No. CV

19-12117, 2020 WL 433359, at *3 (E.D. La. Jan. 28, 2020). But the Fifth Circuit “has

recognized that the mTehroe m‘lopssos nof some job responsibilitiesW’ idlloiaesm ns ovt. Uco.Sn. sDteitpu'tte o fa Nn aavdyverse

employment action.” , 764 F.3d at 504 (quoting , 149

F. App'x 264, 269 (5th Cir. 2005)). While Defendant maintains that the numerous

reprimands issued to Goings are not adverse employment actions, “[i]t is equally well

eAslvtaabralidsho evd. T. e. x. .t Rhaatn gtheers denial of a promotion is an actionableee aadlsvoe rBsree aeumxp vl.o Cyimtye onft G aacrtliaonnd.”

, 492 F.3d 605, 612 (5th Cir. 2007); s ,

205 F.3d 150, 157 (5th Cir. 2000) (“Adverse employment actions are discharges, demotions,

refusals to hire, refusals to promote, and reprimands.”). Goings explicitly alleges that Hardy

informed him that he would not receive a promotion to the vice unit if he “ha[d] anything to

do with it.” (Rec. doc. 1 at p. 5). And, indeed, Goings never in fact received the promotion.

That is sufficient at the motion-to-dismiss stage to plead an adverse employment action.

Goings also alleges that “[a]fter being subjected to a work environment that no

reasonable person could be expected to endure, Goings submitted his resignation. Goings

submits that he left due to the harassment, hostile work environment, and retaliation

detailed above.” (Rec. doc. 1 at p. 5). ThisS dimespcsroibne vs. Aal ccoornns tSrtuacttei vUen idvi.scharge, which also

qualifies as an adverse employTmhoemnta as cvt.i oAntm. os Energy Corp. , 27 F. Supp. 3d 711,

718 (S.D. Miss. 2014) (citing , 223 F. App’x 369, 376 (5th Cir.

2007). Defendant contends that based on his allegations, Goings cannot establish that he

was constructively discharged in order to satisfy the essential element to state a sex

discrimination claim. To establish constructive discharge, Goings must allege facts

demonstrating that working conditions would have been so difficultJu orrg eunnsp vle. Eas.Ea.nOt. Ct.hat a

reasonable person in his shoes would hBaovuer fqeulte cvo. mPopweelllel dE lteoc .r Mesfigg.n C. o . , 903

F.2d 386, 390 (5th Cir. 1990) (quoting , 617 F.2d 61, 65 (5th

Cir. 1980)). To determine whether a reasonable employee would feel compelled to resign,

the Fifth Circuit considers the relevancy of the following events: (1) demotion; (2) reduction

in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading

work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or

humiliation by the employer calculated to encourage the employee's resignation; or (7)

offers of early retirement (or continued employment on terms less favorable than the

Brown v. Kinney Shoe Corp.

employee's former status). , 237 F.3d 556, 566 (5th Cir. 2001).

Having reviewed Goings’ complaint and the facts outlined above, the Court must, at this stage

of the litigation, find that he has pleaded sufficient allegations to satisfy this burden. Goings’

allegations as outlined above are sufficient to plead badgering, harassment, or humiliation

by Hardy calculated to encourage Goings’ resignation, and further discovery may reveal just

that.

Defendant also maintains that Goings has failed to allege that he was treated less

favorably than other comparable employees outside of his protected class. The Fifth CLireceu vit.

Khaasn .c oCnitsyid Se.r eRdy .t hCeo r.equirement for one employee to be similarly situated to another.

, 574 F.3d 253, 259-61 (5th Cir. 2009). Employees with different

supervisors, who work for different divisions of a company, or who were the subject of

adverse employment actions too remote in timWey vfrilol mv. Uthnaitte dta Ckoesn. Laigfea iInnsst. Ctoh.e plaintiff

generally will not be deemed similarly situated. , 212 F.3d

296, 302 (5th Cir. 2000) (considering sufficiency of evidence sustaining jury verdict).

Likewise, employees who have different work responsibilities or who are Ssumbitjehc vt.e Wd atlo-

aMdavretr Ssteo erems p(Nlooy.m 47e1n)t action for dissimilar violations are not similarly situated.

, 891 F.2d 1177, 1180 (5th Cir. 1990). This is because the courts require

that an employee who proffers a fellow employee as a comparator demonstrate tLhiatttl eth ve.

Remeppulbolyicm Reenft. aCcot.,i oLntds .at issue were taken “under nearly identical circumstances.”

, 924 F.2d 93, 97 (5th Cir. 1991) (internal quotation marks omitted).

The employment actions being compared will be deemed to have been taken place under

nearly identical circumstances when the employees being compared held the same job or

responsibilities, shared the same supervisor, or had their employment sLteaetus determined by

the same person, and have essentially comparable violation histories. , 574 F.3d at 260.

And, critically, the plaintiff's conduct that drew the adverse employment decision must have

been “nearly identical” tSoe eth idat. of the proffered comparator who allegedly drew dissimilar

employment decisions. If the “difference between the plaintiff's conduct and that of

those alleged to be similarly situated accounts for the difference in treatment received from

the employer,” the emploWyeaellsa caer ev .n Moet tshiomdiilsatr Hlyo sspit.u Saytse.d for the purposes of an employment

discrimination analysis. , 271 F.3d 212, 221-22 (5th Cir. 2001).

The FiLftehe Circuit does not, however, interpret “nearly identical” as synonymous with

“identical.” , 574 F.3d at 260. Applied to the broader circumstances of a plaintiff's

employment and that of his proffered comparator, a requirement of complete or total

identity rather than near identity would be essentially insurmountable, as it would only be

iInd .t he rarest of circumstances that the situations of two employees would be totally identical.

For example, it is sufficient that the ultimate decisionmaker as to the employees'

continued employmentI di.s the same individual, even if the employees do not share an

immediate supervisor. Each employee's track record at the company need not compriIsde.

the identical number of identical infractions, albeit these records must be comparable.

The relevaPnetr epze vr.s Tpeexc.t Diveep ’its o tfh Carti mofi ntahle J uesmtipceloyer at the time of the adverse employment

decision. , 395 F.3d 206, 210 (5th Cir. 2004).

Goings cites to two comparators – Deputy Brandon Savage, a heterosexual male, and

Deputy Melissa Elliot, a heterosexual female. (Rec. doc. 1 at p. 5). Goings alleges that Savage

committed several policy violations similarI tdo. those for which Goings was disciplined, but

for which Savage was never reprimanded. ( ). Unlike Goings, Savage was not perceived to

be a homosexual. As discovery may reveal that the violations that Savage allegedly

committed were similar to those allegedly committed by Goings, and if Savage was not

perceived to be a homosexual and treated as a heterosexual male, this Court cannot now

state that Savage is not a valid comparator. And whether Elliott is a comparator remains to

be seen after any potential discovery. Elliot, as a heterosexual female, is outside Goings’

protected class and also reported sexual harassment and retaliation against Hardy. Elliot

received a transfer after her claims of sexual harassment and retaliation, while Goings did

not. Both Savage and Elliot were deputies, and thus, the same rank as Goings. At this stage

of the litigation, the Court finds that Goings has pleaded sufficient allegations to withstand a

motion to dismiss on his claim for sexual harassment. Swierkiewicz

v . Sorem aIn N s.Ao .ruling, the Court is mindful of the Supreme Court’s admonition in

, McDonnell Douglas

The prima facie case under , however, is an evidentiary

standard, not a pleading requirement.

. . . . McDonnell Douglas

This Court has never indicated that the requirements for establishing a

prima facie case under also apply to the pleading standard

that plaintiffs must satisfy in order to survive a motion to dismiss. For

instance, we have MrecjDeoctneadl dt hve. S aarngtuam Fee nTtr athila Tt raa nTsiptl.e C Vo.II complaint requires

greater “particularity,” because this would “too narrowly constric[t] the role

of the pleadings.” See, e.g., S,c 4h2eu7e Ur .vS.. R2h7o3d, e2s83, n.

11, 96 S. Ct. 2574, 49 L.Ed.2d 493 (1976). Consequently, the ordinary rules for

assessing the sufficiency of a complaint apply. , 416

U.S. 232, 236, 94 S. Ct. 1683, 40 L.Ed.2d 90 (1974) (“When a federal court

reviews the sufficiency of a complaint, before the reception of any evidence

either by affidavit or admissions, its task is necessarily a limited one. The issue

is not whether a plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.”).

. . . .

Furthermore, imposing the Court of Appeals' heightened pleading

standard in employment discrimination cases conflicts with Federal Rule of

Civil Procedure 8(a)(2), which provides that a complaint must include only “a

short and plain statement of the claim showing that the pleader is entitled to

relief.” Such a statement must simply “give the defendant fair notice of what

the plaintiff's claim is and the grounds upon which it rests.”

534 U.S. 506, 510-12 (2002). It is this Court’s impression that Defendant appears to demand

a pleading that delineates in particular all of the requirements of a Title VII prima facie case

to prevail on a motion for summary judgment. That is simply not the standard at this stage.

Having reviewed Goings’ complaint, the Court finds that it puts Defendant on notice of

Goings’D c.l aimsR aentda ltihaet igornounds on which they rest.

“Title VII's antiretaliation provision forbids employer actions that ‘discriminate

against’ an employee (or job applicant) because he has ‘opposed’ a practice that Title VII

forbids or has ‘made a charBguer, ltinesgttiofine dN, .a &ss Sisatnetda, oFre pRayr.t Cicoip. va.t eWdh iint’e a Title VII ‘investigation,

proceeding, or hearing.’” , 548 U.S. 53, 59 (2006)

(quoting 42 U.S.C. § 2000e-3(a)). The opposition clause of Section 2000e-3(a) requires the

employee to demonstratLeo tnhga vt . hEea shtfaidel da tC olella.st a “reasonable belief” that the practicPeasy hnee

ov.p MpocLseemd woreer'se Wunhloalwesfaulle. & Retail Stores , 88 F.3d 300, 304 (5th Cir. 1996) (citPinaygn e

, 654 F.2d 1130, 1140 (5th Cir. 1981)). In , the

Fifth Circuit explicitly rejected the position that proof of an actual unlawful employment

practice is necessary to state a claim for unlawful retaliation. 654 F.2d at 1137-41. An

informal complaint to a supervisor regarding an unlawful emSpeelo Tyumreenaut dp rva. cGtircaem mblaiyn gs aSttiastfye

the opposition requirement of a Title VII retaliation claim.

Univ. Jefferies v. Harris County Cmty. Action Ass'n

, 294 F. App'x 909, 914-15 (5th Cseire. a2l0so0 8H)e; rtz v. Luzenac Am., Inc. ,

615 F.2d 1025, 1036 (5thS Chiarn. 1n9o8n0 v).; B ellsouth Telecomms., Inc. , 370 F.3d 1014, 1015

(10th Cir. 2004) (same); , 292 F.3d 712, 716 n.2 (11th

Cir. 2002) (same). In addition, and as noted above, Goings need noStw eisetrakbileiwshic az prima facie

case of retaliation at the motion-to-dismiss stage of this litigation. , 534 U.S. at

510-12.

Although “a plaintiff need not make out a prima facie case of [retaliation] in order to

survive a Rule 12(b)(6) motion to dismiss for failure to state a claim,” the prima-facie

standard “has some relevance at the motion-to-dismiss stage,” because in order to

sufficiently state a Title VII-retaliation claim, “a plainJetnifkf imnsu vs.t Lpale. Wado srukfffoirccieen Cto fmacmts' non all of

the ultimate elements to make her case plausible.” , 713 F.

App'x 242, 244, 244 (5th Cir. 2017) (quotations omitted). The prima facie elements for a

retaliation claim require a showing that “(1) [Goings] engaged in activity protected by Title

VII; (2) that an adverse employment action occurred; and (3) that there was a causal

connection Sbheatwckeeelnfo trhde vp. aDrteilcoiipttaet io&n Tino uthchee p, rLoLtePcted activity and the adverse employment

dBerociussisoanr.d” v . Fort Bend Indep. Sch. Dist. , 190 F.3d 398, 407–08 (5th Cir. 1999);

, No. 4:21-CV-02359, 2022 WL 19505, at *3 (S.D. Tex.

Jan. 3, 2022).

Goings alleges in his complaint that he variously lodged complaints with his

supervising Lieutenant, Captain Larry Dyess, LiSeimutse nv.a Fnitr sGt eBaauntkreaux, and to Internal Affairs of

the JPSO, all to no avail. (Rec. doc. 1 at p. 4). In , the court held:

However, in evaluating whether plaintiff has asserted a viable retaliation

claim, the question is not whether the conduct of which she complained

amounted to actionable sexual harassment, as defendant contends, but rather

whether Sims could reasonably have believed that it did. The opposition

clause of § 2000e-3(a) does not require the employee to prove that the

practice she opposed waBs yiner fsact unlawful, but rather “reqPuaiyrnees vth. Me ceLmepmlooryee'es

tWo hdoelmesoanles t&r aRteet athila St tsohree shad at least a ‘reasonable belief’ that the practice she

opposed was unlawful.” , 209 F.3d at 427-28 (citing

, 654 F.2d 1130, 1140 (5th Cir. 1981)).

478 F. Supp. 2d 911, 913 (S.D. Miss. 2006). Regardless of whether the allegations concerning

Hardy’s actions could reasonably be found to amount to actionable sexual harassment, the

Court is not prepared to hold that Goings could not reasonably have believed that they did.

Goings lodged complaints about Hardy’s alleged sexual harassment, which in and of itself, is

an unlawful employment practice under Title VII.

Goings also alleges that an adverse employment action occurred because of his

complaints. The Supreme Court has clarified what is required at the second step of a

plaintiff's prima facie case in the retaliation context, holding that a retaliation claim may rest

on an action that “a reasonable employee would have found . . . [to be] materially adverse,

which in this context means it well might haAvrey adiinss vu.a Wdeadl- Ma raerat sSotnoraebsl eT wexo. rLkPer from making

or supporting a charge of dBisucrrliimngintoanti oNn. .&” Santa Fe Ry. Co. v. White , 534 F.3d 473,

484 (5th Cir. 2008) (citing , 548 U.S. 53, 68 (2006)

(internal quotation marks omitted)).

Goings specifically alleges that when he approached his supervising Lieutenant,

Dyess, to complain of Hardy’s behavior, Dyess advised him that he would be punished for

breaking the chain of command, ultimately discouraging Goings from filing a complaint

against Hardy. (Rec. doc. 1 at p. 4). Goings also alleges that after Hardy learned of his

anonymous complaintI,d h.e told Goings that he would “get rid of him” after he created a paper

trail against Goings. ( at p. 5). Goings also alleges that Hardy falsified a series of written

reprimands that caused Goings to be transferred to another scheduleId, .to receive a 12-hour

suspension and loss of pay, and to lose a promotion to the vice unit. ( ). He maintains that

Hardy’s response was retaliatory behavior to GoinIdg.s’ protected reports and was designed to

dissuade him from making any further reports. ( ).

As to the third element – causation – “Title VII rUentaivl.i aotfi oTnex c. lSawim. Ms emd.u Csttr b. ve. Npraosvsaerd

according to traditional principles of but-for causation.” ,

570 U.S. 338G,a 3r6ci0a (v2. 0P1ro3f)'.l CHoonwt.e Sveerrv,s t.,h Ien cb.ut-for standard does not apply at the prima facie

case stage. , 938 F.3d 236, 242 (5th Cir. 2019). Instead, “[a]t

the prima facie case [stage], a plaintiff can meet his burden of causation simply by showinIdg.

close enough timing between his protected activity and his adverse employment action.”

at 243.

Accordingly, Goings may meet his burdeBnr ohwerne v .b Wy apl-leMaadritn Sgt otreems pEo.,r La.lP .proximity

between Hardy’s actions anads rGeoviinsegds’ complaints. , 969 F.3d

571, 577 (5th Cir. 2020), (Aug. 14, 2020). In his complaint, Goings specifically

pleads that the majority of Hardy’s harassment occurred after he learned of Goings’

complaints to his superiors and Internal Affairs in December 2020 or January 2021. (Rec.

doc. 1 at p. 4). He alleges that Hardy’s bIde.havior escalated and became more harassing after

Hardy learned of Goings’ complaints. ( ). While Goings does not provide all dates related

to certain actions by either he or Hardy, there is a prominent temporal progression in the

complaint of Hardy’s escalating behavior in relation to the dates of Goings’ complaints. As

with prescription of Goings’ federal claims, the Court cannot find that the dates as provided

by Goings do not establish temporal proximity to bear his burden here. For these reasons,

this Court cannot definitively state that Hardy’s combined behavior was retaliation meant to

dissuadEe. GoingPsr efrsocmri pmtaioknin -g L oar. sRuepvp. oSrttaint.g § a 5 c1h:a2r2g5e6 o f discrimination.

In his complaint, Goings asserts a claim under Section 51:2256 for a conspiracy to

violate human rights. Defendants argue that this claim has prescribed. “A statute of

limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiff's

pleadinJognse tsh va.t Athlceo aac, tIinocn. is barred and the pleadings fail to raisseee s oSmoneg bbayrsdis, fIonrc .t ovl. lBinega orsrv tihllee

lRikeces.”., Inc. , 339 F.3d 359, 366 (5th Cir. 2003);

, 104 F.3d 773, 775 n. 3 (5th Cir. 1997). Like discrimination claims under

Louisiana's Employment Discrimination LaCwoo (k“ LvE. DPaLr”.) ,O cf lJaeifmfesr suonnder Section 51:2256 are

subject to a one-year prescriptive period. , – F.3d –, Civ. A. No. 21-

719, 2022 WL 3369193, at *8 (E.D. La. Aug. 16, 2022). Discrimination claims under the LEDL

are suspended during the pendency of an EEOC investigation for a period of up to six months.

La. Rev. Stat. § 23:303(D). Specificalilyn, tthhies s Ctahtauptete prrovides:

Any cause of action provided 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 (emphasis added). The “Chapter” referred to is Chapter 3-A of Title

23, “Prohibited Discrimination in Employment.”

There is some question as to whether the suspensive period also applies to causes of

action under Section 51:2256, which appears in Chapter 38 of Title 51, not Chapter 3-A of

Roth v. N.J. Malin &

TAistsloec 2ia3t.e sGoIinncg.s argues that it does; Defendant argues that it does not. In

, , Magistrate Judge Wilkinson analyzed the text of the statute in effect at the

time and its statutory history and concluded that the suspensive period in Section 23:303

did not, by its own terms, apply to a plaintiff's claim under Section 51:2256 and that the

legislature, in concurrently amending both the LEDL and the Louisiana Commission on

Human Rights Act, could have specified that the suspensive period in the Louisiana

Employment Discrimination Act applies to causes of action under Section 51:2256, but did

not do so. No. CIV. A. 98-1793, 1998 WL 898367, at *3 (E.D. La. Dec. 21, 1998). But Section

51:2256 has been amended since that time. In 1998, when Judge Wilkinson considered the

issue, Section 51:2256 contained no reference to the LEDL. The 2014 amendments added

2

several references to the LEDL.

Goings essentially argues that Section 51:2256 incorporates the LEDL and that,

therefore, the suspensive period applies. He cites no case law in support of this conclusion.

Defendant argues that no suspensive period applies, citing a 2020 decision from the Middle

District of Louisiana in which the court applied a one-year prescriptive period to the

plaintiff's claim under Section 51C:2la2r5k6 v, .w Aiutgheoru St earnvasl.,y Iznicn.g whether the suspensive period in

Section 23:3C0l3a(rDk) might apply. Ro, 4th43 F. Supp. 3d 685, 712 (M.D. La.

2020). The court simply cited Judge Wilkinson's decision without consideration

of the intervening statutory amendment.

S2ee

In 2014, Section 51:2256 was amendSeildb yt ov .a Plsaor .a opfp Jleyf fteor svoinolations of LEDL found in “Chapter 3-A of Title 23.”

2014 La. Sess. Law Serv. Act 756 (S.B. 412) (West). It is thus now clear that Section 51:2256 applies in ti.hee.

employment discrimination context. , No. CV 21-662, 2022 WL 3646071, at *5 (E.D. La.

Aug. 24, 2022). Before the 2014 amendments, Section 51:2256 applied only to violations of “this Chapter,” ,

Title 51 and therefore did not include Title 23.

The Court finds that although the 2014 amendments made it unlawful to conspire to

retaliate against an employee for opposing a practice unlawful under the LEDL, this cannot

be interpreted as incorporating all parts Soifl btyh ve. PLaErD. Lo f iJnetfofe rSseocntion 51:2256, including a

prescriptive period that is not referenced. , No. CV 21-662, 2022 WL

3646071, at *7-8 (E.D. La. Aug. 24, 2022). By its plain terms, Section 23:303(D) does not

apply to claims under Section 51:2256 because such claims are not “provided in” Title 23

Chapter 3-A. Thus, the Court finds that the one-year prescriptive period was not suspended

while Goings’ EEOC charge was pending.

Noting the relevant dates, the parties appear to agree that Goings’ claim under Section

51:2256 was not filed within one year of his constructive discharge. Both parties note that

Goings resigned on May 6, 2021 and did not file suit until August 7, 2022. That is well beyond

the one-year prescriptive period. Accordingly, any claim under Section 51:2256 has

pIVre. scriCbeodn.c lusion

FITo rI Sth OeR foDrEeRgoEiDng reasons,

that the 12(b)(6) MotGioRnA toN TDEisDm IisNs PfoArR FTai lure tDoE SNtaIEteD a ICNla PimAR UTpon

Which Relief can be Granted (rec. doc. 6) is and as

outlined above. Plaintiff Tyler Goings’ claim under La. Rev. StDatI.S §M 5I1S:S2E2D56 W aIgTaHin sPtR DEeJfUenDdIaCnEt

Joseph Lopinto, III has prescribed, and, as such, the claim is .

All of the other claims remain pending in this lawsuit for now.

30th March

New Orleans, Louisiana, this __________ day of __________________________, 2023.

MICHAEL B. NORTH

UNITED STATES MAGISTRATE JUDGE