The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TOSHEI A. WOODS CIVIL ACTION
VERSUS No. 23-3083
LOUISIANA SPECIAL SECTION I
SCHOOL DISTRICT
ORDER & REASONS
Before the Court is defendant Louisiana Special School District’s (“defendant”)
motion1 to dismiss plaintiff Toshei A. Woods’ (“plaintiff”) complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6). Plaintiff has not filed
any opposition to the motion, and the deadline for doing so has passed.2 For the
reasons that follow, the Court grants the motion in part and denies it in part.
I. FACTUAL BACKGROUND
This is an employment discrimination case. Plaintiff alleges violations of Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967
(“ADEA”), and other federal laws pertaining to sex and race.3 The complaint alleges
employment termination and retaliation from May 2021 to October 2021 based on
race, color, sex, and age.4
1 R. Doc. No. 9.
2 The motion was set for submission on November 1, 2023. Pursuant to Local Rule
7.5, plaintiff’s response was due on October 24, 2023.
3 R. Doc. No. 1, at 3.
4 Id. at 4.
According to plaintiff’s Equal Employment Opportunity Commission (“EEOC”)
charge of discrimination, which is attached to her complaint, plaintiff was the
Director of Accountability, Assessment, Curriculum, and Evaluation for the
Louisiana Special School District.5 Plaintiff alleges that superintendent “Errnestt
Garrett III” (“Garrett”) promoted her to this position and gave her a “special project.”6
Plaintiff’s complaint indicates that she was born in 1972 and that she is African
American, “dark-skin[ned],” and female.7
During a meeting, Garrett allegedly told plaintiff to “stop talking about” her
purported discovery that some employees were not qualified for their roles, that “he
didn’t care[,] and that he was not going to get rid of any White folks.”8 Plaintiff further
alleges that Garrett was advised of a misappropriation of funds and certain legal
compliance issues, but “his response was he didn’t care and didn’t do anything to
correct it.”9 According to plaintiff, Garrett “would also make comments about how he
needed to get younger people . . . and that he needed to get rid of the older people in
the system.”10 Plaintiff also alleges that Garrett made comments about her “natural
hair needing to be tamed” and her “eyelashes being long.”11 Garrett allegedly “made
comments that he hoped [plaintiff] wasn’t like the average angry black woman” and
5 R. Doc. No. 1-3, at 6; see also R. Doc. No. 9-1, at 1.
6 R. Doc. No. 1-3, at 4; see also R. Doc. No. 9-1, at 8.
7 R. Doc. No. 1, at 4; see also R. Doc. No. 9-1, at 8.
8 R. Doc. No. 1-3, at 6; see also R. Doc. No. 9-1, at 2.
9 R. Doc. No. 1-3, at 6; see also R. Doc. No. 9-1, at 2.
10 R. Doc. No. 1-3, at 6; see also R. Doc. No. 9-1, at 2.
11 R. Doc. No. 1-3, at 6; see also R. Doc. No. 9-1, at 2.
told her “to be more lady like and less masculine.”12 In addition, plaintiff claims that
she made less money than her underqualified white predecessor and other
underqualified and white education directors in her district.13
Plaintiff alleges that “[a]ll of this created a hostile work environment.”14
Plaintiff further asserts that she was “discharged on October 29, 2021 through email”
and “[n]o reason was given[.]”15 According to plaintiff, she “did not have any
disciplinary actions and received great evaluations.”16 Plaintiff believes she was
discriminated against because of her race, color, sex, and age.17
On January 27, 2022, plaintiff submitted a charge of discrimination to the
EEOC.18 On May 4, 2023, the EEOC issued a “determination of charge” explaining
that the EEOC would not proceed further with its investigation.19 The EEOC also
provided plaintiff with notice of the dismissal of her charge and notice of her right to
sue.20 On August 3, 2023, plaintiff filed the instant lawsuit, asserting that her
employment was terminated and that she was retaliated against based on her race,
color, sex, and age.21 Plaintiff asserts that she has exhausted her administrative
remedies by filing the EEOC charge and she seeks $600,000 in damages.22
12 R. Doc. No. 1-3, at 7; see also R. Doc. No. 9-1, at 2.
13 R. Doc. No. 1-3, at 7; see also R. Doc. No. 9-1, at 2.
14 R. Doc. No. 1-3, at 7.
15 Id.
16 Id.
17 R. Doc. No. 1-3, at 7; see also R. Doc. No. 1, at 4; R. Doc. No. 9-1, at 2.
18 R. Doc. No. 1-3, at 6–7.
19 Id. at 1.
20 Id.
21 R. Doc. No. 1, at 4.
22 Id. at 5.
In response, defendant filed the instant motion to dismiss, arguing that the
complaint should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1),
12(b)(6), and 12(b)(3).23 Specifically, defendant contends that the Court lacks
jurisdiction over plaintiff’s retaliation claim because this claim was not alleged in the
EEOC complaint.24 Defendant also argues that plaintiff’s complaint fails to state a
viable Title VII claim because plaintiff has failed to allege sufficient facts to support
either a hostile work environment claim or a disparate treatment claim.25
Additionally, defendant contends that the complaint fails to state a claim pursuant
to the ADEA because any claims for monetary damages against defendant are barred
by the Eleventh Amendment.26 Finally, defendant argues that plaintiff’s remaining
claims, if any, should be transferred to the Middle District of Louisiana, which it
claims is the appropriate venue.27
II. LAW & ANALYSIS
a. ADEA Claim
Because federal courts are courts of limited jurisdiction, the Court first
addresses defendant’s argument that sovereign immunity bars plaintiff’s ADEA
claim. See Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 751 (E.D. La. 2013) (Feldman,
J.). Sovereign immunity—the idea that a state may not be sued without its consent—
is “a jurisdictional bar.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, at
23 R. Doc. No. 9-1.
24 Id. at 6–7.
25 Id. at 7–10.
26 Id. at 10.
27 Id. at 10–11.
*97–101. In other words, sovereign immunity bears on a court’s subject matter
jurisdiction. Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 333 n.8 (5th Cir. 2002).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), “a claim is ‘properly
dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate’ the claim.” Id. (quotation omitted). Courts are to
consider a Rule 12(b)(1) jurisdictional argument before addressing any other
arguments on the merits. Id. (citing Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001)). The burden of demonstrating subject matter jurisdiction is on the
party asserting jurisdiction. Ramming, 281 F.3d at 161. “Accordingly, the plaintiff
constantly bears the burden of proof that jurisdiction does in fact exist.” Id.
Without referencing jurisdiction, defendant argues that it is entitled to
sovereign immunity and that plaintiff’s claims for monetary damages under the
ADEA should therefore be dismissed.28 To determine whether defendant may assert
sovereign immunity, the Court must determine whether defendant is an “arm of the
state.” See Daniel v. Univ. of Tex. Sw. Med. Ctr., 960 F.3d 253, 256 (5th Cir. 2020).
“The general rule is that a suit is against the sovereign if ‘the judgment sought would
expend itself on the public treasury[.]’” Moore v. Tangipahoa Par. Sch. Bd., 507 F.
App’x 389, 407 (5th Cir. 2013) (quoting Dugan v. Rank, 372 U.S. 609, 620 (1963)).
Although neither plaintiff nor defendant says so, other courts have noted that the
Louisiana Department of Education operates and provides funding for defendant. See
Hudson v. La. State Bd. of Elementary and Secondary Educ., No. 20-00551-BAJ-RLB,
28 R. Doc. No. 9-1, at 10.
2023 WL 2771566, at *1 (M.D. La. Mar. 31, 2023). Accordingly, defendant is an “arm
of the state” for sovereign immunity purposes.
While Congress can abrogate a state’s sovereign immunity, the Supreme Court
has held that, in enacting the ADEA, Congress did not properly abrogate states’
sovereign immunity from suit by citizens. Kimel v. Florida Bd. of Regents, 528 U.S.
62, 69 (2000). Further, there is no indication that the state of Louisiana has waived
its immunity in this case. Accordingly, plaintiff’s ADEA claim is barred by the
doctrine of sovereign immunity. Plaintiff has not met her burden of establishing the
Court’s subject matter jurisdiction with respect to this claim. The Court will therefore
grant defendant’s motion to dismiss plaintiff’s ADEA claim for lack of subject matter
jurisdiction.
b. Venue
Next, the Court considers defendant’s argument pursuant to Rule 12(b)(3) that
the remaining claims should be transferred to the Middle District of Louisiana, where
“venue is appropriate.”29 Because the Court lacks subject matter jurisdiction over
29 Defendant appears to suggest that the Court should first evaluate whether
plaintiff’s claims must dismissed pursuant to Rule 12(b)(6), dismiss any claims as
appropriate, and then transfer any “remaining claims” to the Middle District of
Louisiana, where “venue is proper.” See R. Doc. No. 9-1, at 10. However, defendant’s
Rule 12(b)(6) arguments should be considered by the court where venue is proper.
See, e.g., Daigre v. SSX, L.L.C., No. Civ.A. 97-2700, 1998 WL 187829, at *1 (E.D. La.
Apr. 20, 1998) (Duval, J.) (transferring case and “declin[ing] to consider Defendants’
12(b)(6) motions for failure to state a claim); Schmidt v. Delta Airlines, Inc., No. 98-
3659 1999 WL 179469, at *1 (E.D. La. Mar. 31, 1999) (Barbier, J.) (addressing motion
to transfer for improper venue before motion to dismiss for failure to state a claim);
Martin v. Impact Health, No. 23-2497, 2023 WL 7498175, at *5 (E.D. La. Nov. 13,
2023) (Currault, J.) (transferring case for improper venue and deferring Rule 12(b)(6)
motion for determination by transferee court). Accordingly, the Court will consider
plaintiff’s ADEA claim, it addresses defendant’s argument regarding venue only with
respect to plaintiff’s Title VII claims.
Pursuant to Rule 12(b)(3), a defendant may raise the defense of improper
venue before a responsive pleading is filed. Fernandez v. Jagger, No. 23-891, 2023
WL 6880431 (E.D. La. Oct. 18, 2023) (Fallon, J.) (citation omitted). “When venue is
challenged, the burden is on the plaintiff to establish that the district he chose is a
proper venue.” Id. (quoting Asevedo v. NBCUniversal Media, LLC, 921 F. Sup. 2d 573,
589 (E.D. La. 2013)). “When resolving a Rule 12(b)(3) motion without an evidentiary
hearing, a court accepts a plaintiff’s well-pleaded factual allegations as true and
draws all reasonable inferences in plaintiff’s favor.” Redhawk Holdings Corp. v.
Schreiber, No. 17-819, 2017 WL 6211037, at *1 (E.D. La. Aug. 16, 2017) (Lemelle, J.).
If venue is not supported by a federal statute, then the court “shall dismiss, or if it be
in the interest of justice, transfer, [the] case to any district or division in which it
could have been brought.” 28 U.S.C. § 1406(a).
Although defendant does not cite it, “Title VII contains a specific venue
provision which displaces the general venue provision set out in 28 U.S.C. § 1391.”
Allen v. U.S. Dep’t of Homeland Sec., 514 F. App’x 421, 422 (5th Cir. 2013). Title VII’s
venue provision states that an action may be brought (1) “in any judicial district in
the State in which the unlawful employment practice is alleged to have been
committed,” (2) “in the judicial district in which the employment records relevant to
whether venue is proper in this Court before considering the merits of defendant’s
Rule 12(b)(6) arguments.
such practice are maintained and administered,” or (3) “in the judicial district in
which the aggrieved person would have worked but for the alleged unlawful
employment practice[.]” 42 U.S.C. § 2000e-5(f)(3). “[I]f the respondent is not found
within any such district, such an action may be brought within the judicial district in
which the respondent has his principal office.” Id.
With respect to plaintiff’s Title VII claims, venue is proper both in this Court
and in the Middle District of Louisiana since both districts are in “the State in which
the unlawful employment practice is alleged to have been committed.” 42 U.S.C.
§ 2000e-5(f)(3). Defendant does not argue that transfer is nevertheless appropriate
“for the convenience of the parties and witnesses, in the interest of justice” pursuant
to 28 U.S.C. § 1404(a). The Court therefore will not assess the public and private
interest factors relevant to that analysis at this point, though defendant may raise
this argument in an appropriate timely-filed motion. Accordingly, the Court will deny
without prejudice defendant’s motion to transfer plaintiff’s remaining claims to the
Middle District of Louisiana.
c. Retaliation Claim
The Court next addresses defendant’s argument that plaintiff failed to exhaust
her administrative remedies with respect to her retaliation claim. “Before a plaintiff
may file suit in federal court under [] Title VII[,] the plaintiff must first exhaust her
administrative remedies by filing a charge of discrimination with the EEOC.”
Jennings v. Towers Watson, 11 F.4th 335, 342 (5th Cir. 2021) (citing Melgar v. T.B.
Butler Publ’g Co., 931 F.3d 375, 378–79 (5th Cir. 2019) (per curiam)). The Fifth
Circuit has held that “Title VII’s exhaustion requirement is not jurisdictional.”
Davis v. Fort Bend Cnty., 893 F.3d 300, 306 (5th Cir. 2018).
“[T]he crucial element of a charge of discrimination is the factual statement
[particulars section] contained therein.” Ellzey v. Cath. Charities Archdiocese of New
Orleans, 833 F. Supp. 2d 595, 601 (E.D. La. 2011) (Engelhardt, J.) (quoting Sanchez
v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). In determining whether
a plaintiff has exhausted a particular claim, courts construe the scope of an EEOC
complaint “somewhat broadly, not solely by the scope of the administrative charge
itself, but by the scope of the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination[.]” Jennings, 11 F.4th at 342 (quoting
Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017)). Courts “engage
in fact-intensive analysis of the statement given by the plaintiff in the administrative
charge, and look slightly beyond its four corners, to its substance rather than its
label.” Id. (quoting Patton, 874 F.3d at 443).
The Court must decide whether an EEOC investigation into retaliation “could
reasonably be expected to grow out of the charge of discrimination” based on the facts
plaintiff alleged in her charge. Jennings, 11 F.4th at 342 (quotation omitted). “In
order to state a retaliation claim, a plaintiff must allege ‘(1) that [she] engaged in
activity protected by Title VII, (2) that an adverse employment action occurred, and
(3) that a causal link existed between the protected activity and the adverse action.”
Williams v. Recovery Sch. Dist., 859 F. Supp. 2d 824, 830 (E.D. La. 2012) (Vance, J.)
(quoting Raggs v. Miss. Power & Light Co., 278 F.3d 463, 47 (5th Cir. 2002)).
“Protected activity is defined as opposition to any practice rendered unlawful by Title
VII, including making a charge, testifying, assisting, or participating in any
investigation, proceeding, or hearing under Title VII.” Id. at 830–31 (quoting Ackel v.
Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003)).
Defendant argues that plaintiff’s EEOC charge “exclusively concerned
allegations that she was discriminated against because of her race, sex, and color”
and that the EEOC charge form “does not allege retaliation[.]”30 Looking to the
substance of plaintiff’s EEOC charge rather than its label, however, the particulars
section of plaintiff’s EEOC charge states that she complained about violations of
students’ civil rights and race-based pay disparities (alleged activity she may have
reasonably believed was rendered unlawful by Title VII), that she was discharged,
and that the events forming the basis for her charge took place between May 202131
and October 2021, culminating with her discharge on October 29, 2021.32 These
factual allegations set this case apart from Givs v. City of Eunice, the case upon which
defendant primarily relies. 512 F. Supp. 2d 522, (W.D. La. 2007). In that case, the
court concluded that the plaintiff’s “failure to allege any facts concerning retaliation
that would have put the EEOC on notice about the possibility of retaliation” was
“fatal” to this claim. Id. at 536–37. By contrast, in the instant case, an investigation
30 R. Doc. No. 9-1, at 6.
31 As defendant points out, plaintiff alleges that she was subject to discrimination as
early as May 2021, but the statement in her EEOC charge suggests that these events
took place after her promotion in July 2021. R. Doc. No. 9-1, at 11. The Court does
not find this discrepancy consequential for purposes of the present motion to dismiss.
32 R. Doc. No. 1-3, at 7.
into possible retaliation could “reasonably be expected to grow out of the charge of
discrimination” in light of the facts alleged. Jennings, 11 F.4th at 342 (quotation
omitted).
In reaching this conclusion, the Court is mindful that, “[i]n determining
whether a plaintiff has exhausted a particular claim, ‘the scope of an EEOC complaint
should be construed liberally.’” Jennings, 11 F.4th at 342 (quoting Patton v. Jacobs
Eng’g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017)). The Court is also mindful that
that “[a] pro se litigant’s pleadings are construed liberally.” Id. (quoting Butler v.
Porter, 999 F.3d 287, 292 (5th Cir. 2021)). Defendant does not presently assert that
plaintiff’s retaliation claim should be dismissed on any other ground. Accordingly, the
Court will deny defendant’s motion to dismiss plaintiff’s retaliation claim based on
failure to exhaust her administrative remedies.
d. Title VII Claims
Defendant also argues that plaintiff has failed to allege a viable Title VII claim
for hostile work environment or disparate treatment.33 Rule 12(b)(6) allows for
dismissal of a complaint for “failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). Rule 8 requires a complaint to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Together, these rules demand “sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation and internal quotations omitted).
33 R. Doc. No. 9-1, at 7–10.
“[T]he face of the complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of each element of the
plaintiffs’ claim.” Hi-Tech Elec., Inc v. T&B Constr. & Elec. Servs., Inc., No. 15-3034,
2017 WL 615414, at *2 (E.D. La. Feb. 15, 2017) (Vance, J.) (emphasis added) (citing
Lormand v. US Unwired, Inc., 565 F.3d 228, 255–57 (5th Cir. 2009)). A complaint is
insufficient if it contains “only labels and conclusions, or a formulaic recitation of the
elements of a cause of action.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013)
(citation and internal quotations omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The
complaint “must provide the defendant with fair notice of what the plaintiff’s claim
is and the grounds upon which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336,
346 (2005) (internal quotations omitted).
A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “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.” Culbertson v. Lykos, 790 F.3d 608, 616 (5th Cir. 2015) (citation omitted)
(internal quotation marks omitted). Thus, “[a] claim for relief is implausible on its
face when ‘the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct.’” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787,
796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).
In considering a motion to dismiss, a district court views the complaint “in the
light most favorable to the plaintiff, accepting as true all well-pleaded factual
allegations and drawing all reasonable inferences in the plaintiff's favor.” Lovick v.
Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir. 2004). “[A] district court must limit itself
to the contents of the pleadings, including attachments thereto.” Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing Fed. R. Civ. P. 12(b)(6)).
i. Hostile Work Environment
Defendant contends that plaintiff has failed to allege sufficient facts to
substantiate a hostile work environment claim.34 “Title VII ‘proscribes the creation
of a discriminatorily hostile or abusive environment.’” Burchfield v. S. La. Med.
Assocs., No. 23-1501, 2023 WL 5952183, at *11 (Vance, J.) (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)). “An employee has a cause of action under Title VII
when the workplace is ‘permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Id. (quoting Harris, 510
U.S. at 21).
To state a claim for a hostile work environment in a case where a supervisor
or someone with higher authority perpetrated the harassment, a plaintiff must allege
(1) that she belongs to a protected class; (2) that she was subjected to unwelcome
harassment; (3) that the harassment was based on a prohibited ground such as race
or gender, and (4) that the harassment affected a term, condition, or privilege of
34 Id. at 7.
employment. Blanchard v. Tulane Univ., 636 F. Supp. 3d 642, 656 (E.D. La. 2022)
(Morgan, J.) (quotation omitted). “The inquiry for the Court at this stage is whether
the complaint contains factual allegations sufficient to raise a reasonable expectation
that discovery will reveal evidence of each element of the plaintiff's claims.” Id.
(quotation omitted). Plaintiff need not make out a prima facie case of discrimination
to survive a Rule 12(b)(6) motion. Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir.
2013).
Defendant argues that plaintiff’s claim should be dismissed because the facts
alleged do not demonstrate harassment sufficiently severe or pervasive to alter the
conditions of her employment and create an abusive working environment.35 See
Burchfield, 2023 WL 5952183, at *11. “Harassment affects a term, condition, or
privilege of employment when it is ‘severe or pervasive.’” Blanchard, 636 F. Supp. 3d
at 656 (quotation omitted). “[The] plaintiff must show that the environment was both
objectively and subjectively offensive, one that a reasonable person would find hostile
or abusive, and one that the victim in fact did perceive to be so.” Id. (quotation
omitted). “Courts must look at all the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance in determining whether conduct is hostile or
abusive.” Id. (quotation omitted). “Simple teasing, offhand comments, and isolated
35 R. Doc. No. 9-1, at 7–9.
incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment.” Id. (quotation omitted).
As discussed, plaintiff’s EEOC charge alleges that plaintiff raised certain
concerns to the superintendent, Garrett, who told her to “stop talking about” her
concerns, that “he didn’t care[,] and that he was not going to get rid of any White
folks.”36 Plaintiff also alleges that Garrett made comments about her “natural hair
needing to be tamed[,]”her “eyelashes being long[,]” and told her that he hoped she
“wasn’t like the average angry black woman” and that she should “be more lady like
and less masculine.”37 Plaintiff alleges that “[a]ll of this created a hostile work
environment[.]”38
Plaintiff states that Garrett made the comments about her hair and eyelashes
“on multiple occasions[,]” suggesting that these comments were made with some
frequency.39 Garrett’s conduct was not physically threatening. However, the Fifth
Circuit has explained that, just as “a single incident of harassment, if sufficiently
severe, could give rise to a viable Title VII claim[,] a continuous pattern of much less
severe incidents of harassment” could also give rise to a viable Title VII claim.
E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007). Importantly,
whether the evidence ultimately bears out defendant’s contention that plaintiff has
failed to establish a prima facie hostile work environment claim is not before the
36 R. Doc. No. 1-3, at 6; see also R. Doc. No. 9-1, at 2.
37 R. Doc. No. 1-3, at 6; see also R. Doc. No. 9-1, at 2.
38 R. Doc. No. 1-3, at 7.
39 Id. at 6.
Court on the instant motion to dismiss. See E.E.O.C. v. Jamal & Kamal, Inc., No. 05-
2667, 2006 WL 285143, at *2 (E.D. La. Feb. 7, 2006) (Africk, J.). Accordingly, and in
light of the fact that pro se pleadings should be construed liberally, the Court will not
dismiss plaintiff’s hostile work environment claim at this time, although summary
judgment for defendant may be appropriate at a later stage of these proceedings.
Jennings, 11 F.4th at 342.
ii. Disparate Treatment
Defendant also argues that plaintiff fails to allege sufficient facts to allege a
viable disparate treatment claim under Title VII.40 Defendant wrongly suggests that
plaintiff is required to establish a prima facie case of disparate treatment.41 For
support, defendant relies only on two Fifth Circuit cases applying the summary
judgment standard rather than the motion to dismiss standard.42 As stated, plaintiff
need not make out a prima facie case of discrimination in order to survive a Rule
12(b)(6) motion. Raj, 714 F.3d at 331.
Nevertheless, plaintiff must plead sufficient facts on all of the ultimate
elements of a disparate treatment claim to make her case plausible. Cicalese v. Univ.
of Tex. Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019) (citing Chhim v. Univ. of Tex.
at Austin, 836 F.3d 467, 470 (5th Cir. 2016)). “[T]here are two ultimate elements a
plaintiff must plead to support a disparate treatment claim under Title VII: (1) an
40 R. Doc. No. 9-1, at 9–10.
41 Id.
42 Id. (citing Lee v. Kansas City S. Ry. Co., 574 F.3d 253 (5th Cir. 2009) and Roberts
v. Tex. Dep’t of Human Servs., 275 F.3d 1083 (5th Cir. 2001)).
‘adverse employment action,’ (2) taken against a plaintiff ‘because of her protected
status.’” Id. (citing Raj, 714 F.3d at 331). In the instant case, plaintiff alleges that she
was paid less than white education directors even though those directors were
“underqualified” and, as previously discussed, that the superintendent, Garrett,
made racial comments.43 She also alleges that her employment was terminated
within a few months of her complaints and Garrett’s alleged comments.44 Defendant
has cited no cases suggesting that, at this early stage in the litigation, these
allegations are insufficient to state a claim for disparate treatment. Accordingly,
defendant’s motion to dismiss this claim will be denied.
III. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that defendant’s motion to dismiss is GRANTED IN PART
and DENIED IN PART. The motion is GRANTED to the extent it seeks to dismiss
plaintiff’s ADEA claim for lack of subject matter jurisdiction. The motion is DENIED
to the extent it seeks to dismiss plaintiff’s retaliation claim for failure to exhaust
administrative remedies. Further, the motion is DENIED to the extent it seeks to
dismiss plaintiff’s hostile work environment and disparate treatment claims
pursuant to Rule 12(b)(6). The motion is also DENIED to the extent it seeks to
transfer the case to the Middle District of Louisiana, without prejudice to defendant’s
right to seek transfer pursuant to 28 U.S.C. § 1404(a).
43 R. Doc. No. 1-3, at 6–7.
44 Id. at 7.
New Orleans, Louisiana, December 4, 2023.
LANCE M. AFRICK
UNITED SZATES DISTRICT JUDGE
18