Jones v. Hutson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARK JONES CIVIL ACTION

VERSUS NO. 23-5112

SUSAN HUTSON SECTION “R” (4)

ORDER AND REASONS

Before the Court is defendant Susan Hutson’s motion to dismiss.1

Plaintiff opposes the motion.2 For the reasons set forth below, the Court

grants the motion.

I. BACKGROUND

This action arises from the allegedly unlawful termination of plaintiff’s

employment as a Unit Manager of the Orleans Justice Center, a correctional

facility under the control of the Orleans Parish Sheriff’s Office.3 Plaintiff

alleges that Hutson, Orleans Parish Sheriff, used a progressive disciplinary

policy for her employees, and that plaintiff had not received any formal

1 R. Doc. 6.

2 R. Doc. 11.

3 R. Doc. 1.

discipline in the eighteen years before he was fired in September 2022.4

Plaintiff further alleges that when his employment was terminated on

September 7, 2022, he was not given a reason for the termination, and he

was not informed that he had the right to appeal his termination or request

a name-clearing hearing.5 Plaintiff alleges that a press release issued on the

date of his termination stated that he was fired for cause because he was

“untrained, incompetent, and unsafe.”6 Plaintiff contends that he was fired

because he is Black and because he is a man, and that, in fact, Hutson had no

cause to fire him.7 In support of this contention, plaintiff alleges that he was

replaced with a white man, though plaintiff was better qualified than his

replacement, and two other Black men were fired and replaced with women

on the date of plaintiff’s termination.8 Plaintiff alleges that Hutson made

comments that she would “promote these women,” referring to women

employed at the Orleans Justice Center, and that she frequently told her

advisers that she distrusted many of her employees in leadership positions

at the Orleans Justice Center, but only directed these sentiments to Black

4 Id. ¶¶ 13-14.

5 Id. ¶¶ 16-17.

6 Id. ¶ 21.

7 Id. ¶¶ 21, 24.

8 Id. ¶ 24.

men.9 Plaintiff alleges that as a result of the press release announcing his

termination for cause, he was rejected from jobs with the St. Tammany

Parish and Jefferson Parish Sheriff’s Offices.10

Plaintiff brings causes of action against Hutson in her individual and

official capacities for violation of his right to due process under the

Fourteenth Amendment, actionable under 42 U.S.C. § 1983; race

discrimination in violation of 42 U.S.C. § 1981, actionable under

Section 1983; and gender discrimination in violation of the Equal Protection

Clause of the Fourteenth Amendment, actionable under Section 1983.11

Hutson now moves to dismiss plaintiff’s due process and gender

discrimination claims for failure to state a claim upon which relief can be

granted.12

The Court considers the motion below.

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts to “state a claim to relief that is plausible on its face.” Ashcroft

9 Id.

10 Id. ¶¶ 27-30.

11 Id. ¶¶ 31-60.

12 R. Doc. 6.

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 547 (2007)). 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. at 678. The Court

must accept all well-pleaded facts as true and must draw all reasonable

inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d

228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true

legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

On a Rule 12(b)(6) motion, the Court must limit its review to the

contents of the pleadings, including attachments. Brand Coupon Network,

L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court

may also consider documents attached to a motion to dismiss or an

opposition to that motion when the documents are referred to in the

pleadings and are central to a plaintiff’s claims. Id. Additionally, the Court

may “consider matters of which [it] may take judicial notice.” Hall v.

Hodgkins, 305 F. App’x 224, 227 (5th Cir. 2008) (alteration in original)

(quoting Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017-18 (5th Cir.

1996) (internal quotation marks omitted)).

III. DISCUSSION

A. Due Process Claim

Hutson contends that plaintiff’s due process claims fail as a matter of

law because plaintiff’s pleading indicates that he never requested a name-

clearing hearing.13 Plaintiff contends that he did not ask for such a hearing

because Hutson improperly failed to inform him of the availability of the

procedure.14

A government employee establishes a violation of the Due Process

Clause of the Fourteenth Amendment by showing that the “government

employer discharge[d] the individual under circumstances that will do

special harm to the individual’s reputation and fail[ed] to give that individual

an opportunity to clear his name.” Cunningham v. Castloo, 983 F.3d 185,

191 (5th Cir. 2020) (quoting Rosenstein v. City of Dallas, 876 F.2d 392, 395

(5th Cir. 1989)). To prevail on a Section 1983 due process claim alleging

deprivation of liberty without notice or the opportunity for a name-clearing

hearing, a plaintiff must show (1) he was discharged, (2) stigmatizing

charges were made against him in connection with the discharge, (3) the

charges were false, (4) he was not provided notice or an opportunity to be

13 R. Doc. 6-1 at 2-5.

14 R. Doc. 11 at 4-7.

heard prior to the discharge, (5) the charges were made public, (6) he

requested a hearing to clear his name, and (7) the employer denied the

request. Bellard v. Gautreaux, 675 F.3d 454, 462 (5th Cir. 2012) (citing

Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006)).

Most circuits that have considered the question have concluded that a

plaintiff must request some kind of name-clearing hearing, regardless of

whether an employer informs him of his right to request one. See, e.g., Quinn

v. Shirey, 293 F.3d 315, 324 (6th Cir. 2002) (“[A] plaintiff who fails to allege

that he has requested a hearing and was denied the same has no cause of

action, whether or not he had been informed of a right to a hearing before

filing suit.”); Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 103 (1st

Cir. 2002) (“[T]he government must have failed to comply with the

employee’s request for an adequate name-clearing opportunity.”);

Winskowski v. City of Stephen, 442 F.3d 1107, 1111 (8th Cir. 2006) (holding

that “an employee who fails to request post-termination process cannot later

sue for having been deprived of it,” even when his employer does not offer

him one). While the Fifth Circuit has not directly addressed the question, its

precedent suggests that it would agree with these decisions. First, the seven-

factor test explicitly requires a plaintiff to show that he requested an

opportunity to clear his name and does not condition this requirement on

any action by the employer. Second, in Bledsoe v. City of Horn Lake,

Mississippi, the Fifth Circuit affirmed the district court’s dismissal of

plaintiff’s due process claim for wrongful termination at summary judgment

because of the plaintiff’s “undisputed failure to request a [name-clearing]

hearing.” 449. F.3d at 654. While the plaintiff argued that his employer

breached his obligation to notify him of his right to such a hearing, the Fifth

Circuit was “not persuaded by this argument.” Id. The Court concluded that

“even assuming the City had such a duty,” the City’s written personnel

policies permitted an appeal of any disciplinary action, and those policies

would have been sufficient to put the plaintiff on notice of his right to contest

the termination. Id. The Court did not hold that there was a duty to inform

a terminated employee of his or her right to a hearing.

Defendant contends that In re Selcraig, 705 F.2d 789, 796 (5th Cir.

1983), and Rosenstein v. City of Dallas, 876 F.2d 392, 396-97 (5th Cir. 1989),

impose a duty on public employers to notify employees of their right to a

hearing upon termination. But, as indicated by the Fifth Circuit’s comments

in Bledsoe, neither of these cases imposed any such duty. In Rosenstein, the

Fifth Circuit read Selcraig to impose upon employers a duty to “make known

to the stigmatized employee that he may have an opportunity to clear his

name upon request” when the employer “elect[s] to implement a special

procedure” for clearing a terminated employee’s name distinct from its

“established appeals procedure” for challenging a termination for cause.

Rosenstein, 876 F.2d at 396 (quoting Selcraig, 705 F.2d at 796). The Court

concluded that, if a terminated employee can show that his request to appeal

a discharge decision was denied, that employee can establish that his request

for a name-clearing hearing was denied by showing that the employer did

not inform him of the availability of an alternate name-clearing procedure.

Id. Here, the allegations in plaintiff’s complaint reflect that he did not

request a name-clearing hearing, and plaintiff does not allege that he

requested and was denied the opportunity to appeal his termination through

a standard appeals procedure. Based on the foregoing authorities, the Court

finds that plaintiff’s due process claim fails as a matter of law because his

complaint reflects that he did not request a name-clearing hearing, and, thus,

the claim must be dismissed. See Macklin v. City of New Orleans, 300 F.3d

552, 553 (5th Cir. 2002) (“[T]he requirement that [a name-clearing] hearing

be requested by the claimant is well-established in Fifth Circuit law.”).

B. Gender Discrimination Claim

Hutson contends that plaintiff’s gender discrimination claim must be

dismissed because (1) plaintiff’s use of Section 1983 as the procedural vehicle

for his claim is an improper attempt to circumvent exhaustion requirements

under Title VII, and (2) plaintiff cannot show that others who were similarly

situated but outside of the protected class were treated more favorably.15

As to the exhaustion requirement, Section 1983 provides a cause of

action for gender discrimination independent of Title VII. Southard v. Tex.

Bd. of Crim. Just., 114 F.3d 539, 550 (5th Cir. 1997). While the Fifth Circuit

has not directly addressed the issue, most circuits that have considered it

have concluded that a plaintiff may file a gender discrimination action

against a non-federal defendant under Section 1983 without fulfilling the

exhaustion requirements associated with Title VII. See Trigg v. Fort Wayne

Cmty. Sch., 766 F.2d 299, 302 (7th Cir. 1985) (“A plaintiff may sue her state

government employer for violations of the Fourteenth Amendment through

§ 1983 and escape Title VII’s comprehensive remedial [and procedural]

scheme.”); Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 683

(10th Cir. 1988) (“[A] section 1983 plaintiff need not comply with the

exhaustion requirements of Title VII.”); Henley v. Brown, 686 F.3d 634,

642-43 (8th Cir. 2012) (“[A]n employment discrimination plaintiff asserting

a violation of a constitutional right may bring suit under section 1983 alone,

without having to plead concurrently a violation of Title VII and comply with

15 R. Doc. 6 at 5-10.

the Act’s procedural requirements.”). Accordingly, the Court finds that,

because plaintiff pleaded claims for violations of the Equal Protection Clause

through Section 1983, he was not required to exhaust administrative

remedies before suit.

On the merits, a plaintiff need not establish a prima facie case of gender

discrimination to survive a motion to dismiss under Rule 12(b)(6). He is

required to plead only the ultimate elements of the claim: (1) that he faced

an adverse employment action, and (2) that this adverse employment action

was taken because of plaintiff’s protected status. Cicalese v. Univ. of Tex.

Medical Branch, 924 F.3d 762, 767 (5th Cir. 2019). Nevertheless, a plaintiff

“[must] plead sufficient facts on all of the ultimate elements of a disparate

treatment claim to make his case plausible.” Chhim v. Univ. of Tex. at

Austin, 836 F.3d 467, 470 (5th Cir. 2016). In particular, when a claim

depends on circumstantial evidence, “a plaintiff must allege facts sufficient

to support a finding ‘that he was treated less favorably than others outside of

his protected class.’” Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 600 (5th

Cir. 2021) (quoting Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 427 (5th

Cir. 2017)).

Here, plaintiff sufficiently alleges that he was subject to an adverse

employment action when he was terminated. In attempting to show that he

was “treated less favorably than others outside of his protected class,”

Alkhawaldeh, 851 F.3d at 427, plaintiff alleges only that Hutson fired two

other Black men and replaced them with women, that she told her advisers

that she distrusted certain employees who held leadership positions but

directed these comments only towards Black men, and stated that she

intended to promote certain women who served at the Orleans Justice

Center.16 Plaintiff’s complaint acknowledges that he was replaced with a

man.17 Plaintiff’s complaint does not include any allegations that Hutson

made derogatory comments about men in general or point to any other

circumstantial evidence of bias against men. The comments that plaintiff

points to were directed towards individuals, and do not evince any general

bias against men. Cf. Cicalese, 924 F.3d at 768 (holding that plaintiff

adequately alleged a disparate treatment claim when he alleged that

defendant made derogatory comments about the protected class generally).

Although plaintiff alleges that two other men were terminated and replaced

with women, plaintiff himself was replaced with a man, making it

implausible that he was terminated on the basis of his gender. See Keplar v.

Google, LLC, No. 22-2281, 2023 WL 7360891, at *4 (N.D. Tex. Nov. 7, 2023)

16 R. Doc. 1 ¶ 24.

17 Id.

(granting motion to dismiss gender discrimination claim and noting

“allegations that other employees were replaced by women do not, by

themselves, make it plausible that [plaintiff] was fired because he was a

man.”). Taken together, plaintiff’s allegations are insufficient to “permit a

reasonable inference that [Hutson] terminated [plaintiff] because of gender

identity.” Olivarez, 997 F.3d at 600. Accordingly, the Court finds that

plaintiff has failed to state a claim for gender discrimination under

Section 1983, and the claim must be dismissed.

C. Official Capacity Claims

Plaintiff pleads his due process and gender discrimination claims

against Sheriff Hutson in both her individual and official capacities. A suit

against a government official in her official capacity is “another way of

pleading an action against an entity of which an officer is an agent.” Monell

v. New York City Dep’t of Social Servs., 436 U.S. 658, 690 n.55 (1978). To

state a claim for municipal liability, a plaintiff must allege (1) an official

policy or custom, of which (2) a policymaker can be charged with actual or

constructive knowledge, and (3) a constitutional violation caused by that

policy or custom. Robinson v. Hunt Cty., Tex., 921 F.3d 440, 447 (5th Cir.

2019) (quoting Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir.

2002)). Because plaintiff has failed to state a claim for constitutional

violations with respect to his due process and gender discrimination claims,

plaintiff’s official capacity claims against Sheriff Hutson must be dismissed.

See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (noting that, to state a

claim for municipal liability, a plaintiff must establish the elements of

personal liability in addition to the existence of a policy or custom that

caused the constitutional violation).

D. Opportunity to Amend

Hutson contends that plaintiff’s due process and gender

discrimination claims should be dismissed with prejudice, and that plaintiff

should not be given leave to amend his complaint before dismissal.18 A

plaintiff must “‘expressly request’ leave to amend.” Law v. Ocwen Loan

Servicing, L.L.C., 587 F. App’x 790, 796 (5th Cir. 2014) (quoting United

States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 387

(5th Cir. 2003)). Plaintiff has not requested leave to amend the complaint.

Accordingly, plaintiff’s due process and gender discrimination claims must

be dismissed without leave to amend. See Cinel v. Connick, 15 F.3d 1338,

18 R. Doc. 6-1 at 2.

1346 (5th Cir. 1994) (affirming dismissal with prejudice under Rule 12(b)(6)

when plaintiff failed to request leave to amend).

IV. CONCLUSION

For the foregoing reasons, Hutson’s motion to dismiss is GRANTED.

Plaintiff's due process and sex discrimination claims are DISMISSED WITH

PREJUDICE.

New Orleans, Louisiana, this _22nc__ day of May, 2024.

derek Vevee_

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

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