The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
JAQUALINE MCGEE CIVIL ACTION NO. 19-0106
VERSUS JUDGE DONALD E. WALTER
BOSSIER PARISH SCHOOL MAGISTRATE JUDGE HORNSBY
BOARD, ET AL.
MEMORANDUM RULING
Before the Court is a Motion to Dismiss filed by Defendants Bossier Parish School
Board (“BPSB”), David Hennigan (“Hennigan”), Sherri Pool (“Pool”)!, Frank Reaugeau
(“Reaugeau”)’, David Thrash (“Thrash”), and Scott Smith (“Smith”). [Rec. Doc. 11]. Also
before the Court is a Motion to Dismiss filed by Defendants Red River United (‘RRU”) and
Jackie Lansdale (“Lansdale”). [Rec. Doc. 13]. Plaintiff, Jaqualine McGee (“McGee”), has not
filed an opposition to either motion. For the reasons assigned herein, Defendants’ motions are
GRANTED.
BACKGROUND INFORMATION
McGee is an employee of BPSB, where she formerly worked as a cafeteria manager.
McGee states that her performance as cafeteria manager was considered satisfactory until
January 2018, when the police interviewed her in connection with a criminal investigation of
another employee. [Rec. Doc. 1-2 at 3]. McGee states that after the interview she started to
! Plaintiff names Sherri Poole as a Defendant in her Complaint. However, BPSB’s Director of
Human Resources is named Sherri Pool. [Rec. Doc. 11].
? Plaintiff also names Frank Rauso as a Defendant in her Complaint. BPSB does not employ
anyone by that name. BPSB believes Plaintiff intended to name Frank Reaugeau, BPSB’s Chief
Financial Officer. [Rec. Doc. 11].
receive reprimands. See id. On February 7, 2018, McGee was given a two-day suspension
without pay for the inappropriate use of school funds to purchase alcohol for the cafeteria
employee Christmas party. See id. at 6-7. Shortly thereafter, on March 5, 2018, McGee was
given a written reprimand for her behavior at a scheduled community goodwill breakfast. See id.
at 8. When community leaders arrived at her school to serve breakfast to students, McGee
informed them that the event had been canceled without verifying this information with her chain
of command. See id. According to BPSB, the event was not canceled, and McGee should have
responded to the situation in a more positive manner. See id. McGee was given a written
reprimand, which noted that McGee exercised poor judgment and unsatisfactory work
performance by failing to call a supervisor and clear up any confusion before rudely sending
away the community leaders. See id. When McGee was presented with the written reprimand,
she signed it as follows: “This is not what happened, I’m signing because I read the reprimand.”
See id.
On March 8, 2018, Pool, BPSB’s Human Resources Director, placed McGee on
administrative leave, with pay, while the matter was being investigated. See id. at 10. The same
day, Hennigan, BPSB Interim Food Service Supervisor, recommended to Smith, BPSB
Superintendent, that McGee be terminated for insubordination and dishonesty. See id. at 11.
Hennigan found that the allegations set forth in the March 5, 2018, reprimand were correct based
on corroborating statements by Pool and Thrash, Principal of Bossier High School. See id.
By letter dated July 3, 2018, Superintendent Smith informed McGee that he was
contemplating disciplinary action against her because of her actions at the community breakfast
and her lack of cooperation with the investigation of the incident. See id. at 14. McGee provided
a written statement to Smith containing her version of the events surrounding the community
breakfast. See id. at 15-16. Smith was not swayed by McGee’s explanation. Smith decided to
demote McGee to the position of food service technician. See id. at 17. McGee states that a
younger, white female filled her management position. See id. at 3. Thereafter, McGee took
extended sick leave for injuries she alleges were sustained from a January 2018 slip and fall ina
freezer at the school.? See id. at 18-23, 47-48, 50-55, 59-60.
McGee filed two official charges of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). On September 11, 2018, McGee filed a charge against
BPSB with the EEOC and the Louisiana Commission on Human Rights, alleging discrimination
on the basis of race, age, and retaliation. See id. at 7. In the charge, McGee states that she
began receiving reprimands shortly after she was interviewed by the police in connection with a
criminal investigation of another employee. See id. | On September 17, 2018, the EEOC
dismissed McGee’s case, provided her with notice of her right to sue, and cautioned that a
lawsuit must be filed within 90 days. See id. at 2.
On November 14, 2018, McGee filed a second EEOC charge against her union, RRU,
alleging discrimination on the basis of race, color, sex, age, and genetic information. See id. at
78-82.4 McGee described RRU’s alleged discrimination as follows: “I think that [RRU] did not
represent me to the best of their ability. Instead of fighting for me, they only tried to work out an
agreement.” See id. at 78. On November 27, 2018, McGee received a right to sue letter from
the EEOC related to her charge against RRU. [Rec. Doc. 1 at 1].
3 McGee filed a workers’ compensation claim for this injury. [Rec. Doc. 1-2 at 24-28].
‘The Court believes McGee intended to check the box for retaliation, but mistakenly checked
the box labeled genetic information. Title VIJ complaints may only encompass discrimination
related to the allegations contained in the EEOC charge or arising from the charge during the
course of the EEOC investigation. McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (Sth Cir.
2008).
On January 28, 2019, McGee filed a Complaint in this Court seeking damages under Title
VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. See id. McGee named BPSB and its
employees Hennigan, Pool, Reaugeau, Thrash, and Smith as Defendants. See id. McGee also
named her union, RRU, and two RRU employees, Lansdale and Elizabeth Gipson. See id. °
The Defendants move to dismiss McGee’s claims with prejudice under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. [Rec. Docs. 11
and 13].
LAW AND ANALYSIS
I. Rule 12(b)(6) standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and plain
statement of the claim showing that the pleader is entitled to relief’ When a complaint falls
short of this directive, a defendant may move to dismiss the claim for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a 12(b)(6) motion,
the Court “accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.” Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (Sth Cir.
2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (Sth Cir. 1999)).
“To survive a motion to dismiss, a complaint must contain 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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 1974 (2007)). Under this standard, “factual allegations must be
> Gipson is a former employee of RRU. RRU refused to accept service on Gipson’s behalf
because she is no longer an employee. [Rec. Doc. 13 at 1]. On June 18, 2019, the Clerk of
Court dismissed Gipson from the lawsuit due to McGee’s failure to timely serve Gipson with the
Complaint. [Rec. Doc. 18].
enough to raise a right to relief above the speculative level ... on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56,
127 S.Ct. at 1965. Ifa pleading only contains “labels and conclusions” and “formulaic recitation
of the elements of a cause of action,” the pleading does not meet the standards of Rule 8(a)(2).
556 U.S. at 678, 129 S.Ct. at 1949 (citation omitted). Courts do not have to accept legal
conclusions as facts. See id. However, the Court “should not dismiss [a] claim unless the
plaintiff would not be entitled to relief under any set of facts or any possible theory that [she]
could prove consistent with the allegations in the complaint.” Martin K. Eby, 369 F.3d at 467
(quoting Jones, 188 F.3d at 324).
If. Claims against BPSB
A claim under Title VII must be filed within 90 days of receipt of a right to sue letter
issued by the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Taylor v. Books A Million, Inc., 296 F.3d
376, 379 (5th Cir. 2002). The 90-day period to sue under Title VII functions as a statute of
limitations. See Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1250 (Sth Cir. 1985).
Without evidence to the contrary, the Court must presume that a plaintiff receives an EEOC right
to sue letter within three days after it is mailed. See Jenkins v. City of San Antonio Fire Dept.,
784 F.3d 263, 267 (Sth Cir. 2015). The EEOC issued McGee a right to sue BPSB on September
17, 2018. [Rec. Doc. 1-2 at 1]. Thus, this Court must presume that Plaintiff received the letter
on September 20, 2018. The deadline for McGee to file her lawsuit against BPSB was
December 19, 2018. McGee did not file her lawsuit until January 28, 2019, more than a month
late. McGee has not alleged any facts in her Complaint to suggest that equitable tolling is
applicable in this case. Accordingly, McGee’s claims against BPSB are untimely and must be
dismissed with prejudice.
The Court notes that even if McGee’s claims against BPSB were not untimely, she has
not alleged sufficient facts to support her claim for Title VII retaliation. McGee’s Complaint
centers upon her belief that she experienced retaliation after she was interviewed in connection
with a criminal investigation of a fellow employee, and suffered an injury on the job. Assuming
that the allegations are true for the purpose of this motion, retaliation premised on participation
in a criminal investigation is not a cognizable claim under Title VII. Likewise, retaliation
against an employee for filing a workers’ compensation claim does not create liability under
Title VIL®
Title VIL forbids an employer from retaliating against an employee who files a charge of
discrimination or participates in an investigation of discrimination. See Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 2410 (2006). Title VII retaliation requires
a plaintiff to establish that (1) she participated in protected activity under Title VI; (2) her
employer took an adverse action; and (3) a causal connection exists between the protected
activity and adverse employment action. See McCoy v. City of Shreveport, 492 F.3d 551, 556-
57 (Sth Cir. 2007). McGee did not allege that she engaged in Title VII protected activity prior
to being reprimanded or demoted, which is insufficient to state a Title VII retaliation claim.
Similarly, even if McGee’s claims against BPSB were timely, she has failed to present
sufficient facts to support a plausible claim for race or age discrimination under Title VII. A
plaintiff is not required to plead a prima facie case based on discrimination at the pleading stage
McGee alleges in her Complaint that she began receiving reprimands in part because of her
injury at work. [Rec. Doc. | at 1]. Title VII does not address retaliation based on the filing of a
workers’ compensation claim. This is a state law matter. It is unclear to the Court whether
McGee intended to assert a claim against BPSB for workers’ compensation discrimination under
Louisiana law. To the extent McGee did assert such a claim, the Court declines to exercise
supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), and the claim is DISMISSED
WITHOUT PREJUDICE.
for purposes of Rules 8 and 12(b)(6), but she must set forth sufficient allegations to enable the
court to reasonably infer that her employer discriminated against her because of a protected
characteristic. See Brown v. Metroplex Plumbing, No. 17-2131, 2017 WL 6466747, at *3 (N.D.
Tex. Oct. 5, 2017). Although McGee filed an EEOC charge of discrimination, she did not
allege that BPSB discriminated against her because of her race or age. Rather, McGee contends
in her EEOC charge that she began experiencing reprimands after the police interviewed her.
[Rec. Doc. 1-2 at 3]. In her Complaint, McGee states:
I feel I was retaliated against because I did not tell the police officers what they
wanted to know about an employee, and that I fell in the freezer at the job. I was
there [sic] target to get me out. Ten year [sic] employment not one write up.
Within one month I had four or five write up [sic]. After I was placed on
suspension, the white woman they put in my place had started changing my office
around for herself. She told the techs that she will [sic] be taking my place.
[Rec. Doc. 1 at 2]. McGee’s only statement about race or age in her EEOC charge is as follows:
“While out on leave, I learned that my cafeteria manager position was filled by a younger white
female.” [Rec. Doc. 1-2 at 3]. McGee has offered no facts alleging that any action taken by
BPSB, including her replacement as cafeteria manager, was motivated by race or age. To the
contrary, McGee clearly states that BPSB was motivated by her interaction with the police and a
workplace injury. This is insufficient to support a plausible claim for Title VII race or age
discrimination.
II. Claims against BPSB employees
McGee also named BPSB employees Hennigan, Pool, Reaugeau, Thrash, and Smith as
Defendants in her complaint. However, these individuals are not subject to liability under Title
VII. “[R]elief under Title VII is available only against an employer, not an individual
supervisor or fellow employee.” Foley v. Univ. of Houston Sys., 355 F.3d 333, 340 n. 8 (Sth
Cir. 2003) (citing 42 U.S.C. § 2000e(b)’s definition of employer). Individual employees cannot
be held liable under Title VII in either their individual or official capacities. See id.; Umoren v.
Plano Indep. Sch. Dist., 457 F. App’x 422, 425 (Sth Cir. 2012). Therefore, McGee’s claims
against Hennigan, Pool, Reaugeau, Thrash, and Smith must be dismissed with prejudice.
IV. Claims against RRU and its employees
McGee also filed Title VII claims against her union, RRU, and RRU employees Lansdale
and Gipson. As noted above, these-claims stem from a separate EEOC charge filed against
RRU. McGee received her EEOC letter of her right to sue RRU on November 27, 2018. [Rec.
Doc. 1-2 at 78-82]. Because McGee filed her lawsuit within 90 days, her claims against RRU
and Lansdale are timely filed.
RRU argues that McGee’s claims should be dismissed because her Complaint does not
allege that RRU or its employees had any involvement in BPSB’s decision to demote her or
replace her with a younger, white woman. [Rec. Doc. 13-1 at 1]. The Court agrees that
McGee’s Complaint does not suggest that RRU was responsible for BPSB’s decision to demote
her from cafeteria manager to cafeteria technician. McGee merely alleges that RRU did not
represent her to the best of their ability. [Rec. Doc. 1-2 at 78]. Accepting this allegation as true,
it is simply insufficient to sustain a claim of Title VII discrimination against RRU or its
employees. There is no mention of any discrimination by RRU, Lansdale, or Gipson on the basis
of race, color, religion, sex, national origin, or genetic information as noted in McGee’s charge
of discrimination.
Moreover, the Court notes that McGee did not have an employment relationship with
RRU or its employees. Title VII only authorizes private suits against employers. See 42 U.S.C.
§ 2000e(b). Because neither RRU nor Landsdale had an employment relationship with McGee,
there is no liability under Title VU. For these reasons, McGee has failed to state a plausible
claim against RRU or Lansdale for which relief may be granted. McGee’s claims against RRU
and Lansdale must be dismissed with prejudice.
CONCLUSION
Based on the foregoing reasons, the Motion to Dismiss [Rec. Doc. 11] filed by BPSB,
Hennigan, Pool, Reaugeau, Thrash, and Smith is GRANTED. The Motion to Dismiss [Rec.
Doc. 13] filed by RRU and Lansdale is GRANTED.
Plaintiffs Title VII claims against BPSB are hereby DISMISSED WITH PREJUDICE.
Plaintiffs claims against Hennigan, Pool, Reaugeau, Thrash, and Smith are DISMISSED
WITH PREJUDICE. Plaintiff's claims against RRU and Landsdale are DISMISSED WITH
PREJUDICE. The Court declines to exercise supplemental jurisdiction over Plaintiff's state
law claim against BPSB for workers’ compensation retaliation, and it is DISMISSED
WITHOUT PREJUDICE, pursuant to 28 1367(c)(3).
THUS DONE AND SIGNED, this Lb day of June, 2019.
DONALD E. WALTER
UNITED STATES DISTRICT JUDGE