Newell v. Acadiana Planning Commission Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

. LAFAYETTE DIVISION □

MELISSA M NEWELL CASE NO. 6:20-CV-01525

VERSUS JUDGE ROBERT R. SUMMERHAYS

ACADIANA PLANNING COMMISSION MAGISTRATE JUDGE CAROL B.

INC WHITEHURST

MEMORANDUM RULING

The present matter before the Court is a Rule 12(b)(6) Motion to Dismiss for Failure to

State a Claim [ECF No. 3] filed by defendant Acadiana Planning Commission, Inc. (“APC”). For

the reasons explained below, the Motion to Dismiss is DENIED, but plaintiff is ordered to file an

amended complaint.

I.

BACKGROUND

Plaintiff Melissa Newell was hired by defendant APC—or APC’s predecessor—in April

2014. Newell contends that she was “repeatedly passed over for promotional opportunities, despite

superior qualifications, due to her race and/or religion.”! Newell also contends that she was

subjected to a “hostile work environment, again due to her race and/or religion.”” Newell alleges

that she complained about these discriminatory actions and harassment to APC’s Board of □

Directors on or around October 11, 2018.7 Newell further alleges that APC’s Director requested □

that she withdraw her complaint to the Board and “just pray about it.”* Newell contends that APC

then retaliated against her for filing a complaint with the Board by terminating her employment on

1 ECF No. 1 at 2.

2 Id.

3 Id.

4 Td.

or about November 1, 2018.° Newell file a charge with the Equal Employment Opportunity

Commission (“EEOC”) and Louisiana Commission on Human Rights on August 12, 2019 (the

“EEOC Charge”). On September 3, 2020, the EEOC closed Newell’s file and issued a “right to

sue” letter.° Newell commenced the present action under Title VII on December 1, 2020, and APC

filed a motion to dismiss Newell’s complaint under Rule 12(b)(6) of the Federal Rules of Civil

Procedure.

Il.

RELEVANT STANDARD

Under Rule 8(a)(2) of the Rules of Civil Procedure, a pleading must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Accordingly, to“survive __

a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but

must. provide the plaintiffs grounds for entitlement to relief —including factual allegations that

when assumed to be true ‘raise a right to relief above the speculative level.’”” The facts alleged, -

taken as true, must state a claim that is plausible on its face.* “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”? A complaint is not sufficient if it offers only

“labels and conclusions,” or “a formulaic recitation of the elements of a cause of action.”!°

3 Id.

6 Td. at 12.

7 Cwillier v. Taylor, 503 F.3d 397, 401 (Sth Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-

tooaoke v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (Sth Cir. 2011).

Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009).

10 (quoting Twombly, 550 U.S. at 554-57).

WH. |

DISCUSSION

A. Title VII Disparate Treatment Claim.

APC first challenges Newell’s disparate treatment claim under Title VII. Title VII provides

that “it shall be an unlawful employment practice for an employer to ... discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion ... or national origin.”!' An employer’s action will

be found unlawful if the employee can demonstrate that race or religion was a “motivating factor”

for an adverse employment action, even if the employer was also motivated by other lawful

factors.!2 The pleading standard for a Title VII claim is governed by Swierkiewicz v. Sorema

N.A.3—not the evidentiary standard set forth in McDonnell Douglas Corp. v. Green.'* Under

Swierkiewicz, “there are two ultimate elements a plaintiff must plead to support a disparate

treatment claim under Title VII: (1) an adverse employment action, (2) taken against a plaintiff

because of her protected status.”!° While McDonnell Douglas does not govern a Rule 12(b)(6)

analysis of the adequacy of a plaintiff’s Title VII allegations, courts have looked to McDonnell

Douglas in assessing a plaintiffs allegations where, as here, those allegations rely on

circumstantial evidence of discrimination.!© The McDonnel Douglas framework requires a

plaintiff to first establish a prima facie case of discrimination by showing that: (1) she was a

member of a protected class; (2) she was qualified for her position; (3) she was discharged or

11 42 U.S.C. § 2000e-2(a).

Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (Sth Cir. 2011) (citing 42 U.S.C. § 2000e-2(m)).

8534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

4411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019) (quotations omitted) (citing Raj v. La.

State Univ., 714 F.3d 322, 331 (Sth Cir. 2013)).

16 Cicalese, 924 F.3d at 767 (“In such cases, we have said that it can be ‘helpful to reference’ that framework when

the court is determining whether a plaintiff has plausibly alleged the ultimate elements of the disparate treatment

claim.”) (quoting Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 470 (Sth Cir. 2016)).

3 □

subject to an adverse employment action by her employer; and (4) she was replaced by someone

outside her protected class or was treated less favorably than other similarly situated employees

outside of the protected group.!7

1. Has Newell Pled a Plausible Title VII Discrimination Claim? .

Newell alleges unlawful discrimination based on race and religion. Newell’s complaint,

however, alleges few facts supporting her disparate treatment claim. Instead, she alleges, in

conclusory fashion that “she was repeatedly passed over for promotional opportunities, despite

superior qualifications, due to her race and/or religion.” Newell’s EEOC Charge and her EEOC

file—which she incorporates by reference in her complaint—provide a few additional facts to

support her claim. Specifically, the EEOC Charge summarizes Newell’s claim:

I began my employment with the Acadiana Planning Commission in April 2014, as

Transportation Safety Coordinator. Throughout my employment, I was denied and passed

over for promotional opportunities. On or about September 26, 2018, Monique Boulet,

Executive Director, came in to my office multiple times yelling and screaming at me. The

last time Ms. Boulet came into my office, she knocked things off my desk and stated that I

attacked her and screamed ‘Call the Police.’ Other employees heard the commotion and

came in to my office to defuse the situation. Ms. Boulet kept yelling that I attacked her and

for someone to ‘call the police’. I was requested by Rachel Godeaux, Direct, to attend a

meeting with Ms. Boulet and several others. I declined the meeting and exercised my

option to file a complaint with the Board of Directors. In my statements and meetings with

the Board, I expressed that I felt my race was a factor in Ms. Boulet’s actions. Prior to my

meeting with the board, I was told by Ms. Godeaux that I just needed to pray. I told Ms.

Godeaux that I was uncomfortable with that line of conversation, but Ms. Godeaux

continued to discuss prayer. I was never informed of any results after I met with the Board

on or about October 11, 2018. On November 1, 2018, I was discharged.

According to Ms. Boulet, I was discharged for not being able to communicate in a calm

and professional manner, inability to get along with other staff, creating office

disturbances, using the computer for personal use, and for not being able to fulfill the needs

of the contract.

I believe I have been discriminated against because of my race, black, my religion, and that

I have been retaliated against in violation of Title VI of the Civil Rights Act of 1964, as

amended.

Id; Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 512 (Sth Cir.2001).

18 ECF No. 3-2 at 19-20.

Newell’s Opposition to the Motion to Dismiss also includes an affidavit that identifies additional

facts supporting her disparate treatment claim,'? but those facts are not pled in her complaint.

Considering the factual allegations in the complaint and the EEOC Charge, Newell’s

allegations do not state a plausible disparate treatment claim under Title VII. With respect to her

termination, Newell does not plead facts showing that she was replaced by someone outside her .-

protected class, or that she was treated less favorably than other similarly situated employees

outside of her protected group. For example, Newell points to no comparators to show that she

was subject to less favorable treatment. With respect to her “failure to promote” allegations, her

complaint includes no facts identifying the openings for which she applied,” whether she was

qualified for those specific openings, whether those openings were merely lateral transfers,*! or

whether someone outside her protected class was selected for the opening. Instead, the complaint

merely states, in a conclusory fashion, that Newell was subjected to discrimination based on race

and religion. Nor does Newell’s EEOC Charge supply the facts necessary to state a plausible Title

VII claim. A plaintiff need not plead a Title VII claim with detailed factual allegations; but the

allegations must assert facts, not conclusions.” And, those facts must be sufficient to show that

the plaintiff has a plausible claim of disparate treatment under Title VII. Here, Newell’s allegations

do not state a plausible Title VII claim.

19 ECF No. 6-1.

20 Grice v. FMC Techs. Inc., 216 F. App'x 401, 406-07 (Sth Cir. 2007) (the court noted that there was no evidence

that the plaintiff “actually applied for a position and was not promoted.”)

21 Knox v. PHC-Cleveland, Inc.,24 F. Supp. 3d 584, 589-90 (N.D. Miss. 2014) (‘Title VII was not enacted to address

every employment decision,’ such as an employer's denial of an employee's request for a purely lateral transfer.”)

(quoting McFall v. Gonzales, 143 Fed. Appx. 604, 608 (5th Cir. 2005)).

22 Rule 8 does not require “detailed factual allegations,” but “it demands more than ‘labels and conclusions.’” □□□□□□

556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Moreover, “‘a formulaic recitation of the elements of a cause of

action will not do.’” /d. (quoting Twombly, 550 U.S. at 555).

2. Leave to Amend.

Newell opposes dismissal but, in the alternative, seeks leave to amend her complaint. Rule

15(a) of the Federal Rules of Civil Procedure provides that courts should “freely” grant leave to

amend when “justice so requires.” But this “generous standard is tempered by the necessary power

of a district court to manage a case.””? One key exception to this generous standard is where the

amendment would be futile.’4 In determining futility, courts “apply the same standard of legal

sufficiency as applies to Rule 12(b)(6).””° In other words, if an amendment would be subject to

the same grounds of dismissal as under a defendant’s original Rule 12(b)(6) motion, amendment

would be futile, and the court should deny leave to amend.

Newell’s request for leave to amend points to the additional facts set forth in her affidavit

and argues that she can cure any deficiencies in her complaint by amending and including these

facts.2° APC contends that an amendment would be futile because Newell did not timely exhaust

her administrative remedies. Before filing suit, Title VII plaintiffs must first exhaust their

administrative remedies by filing a charge of discrimination with the EEOC within 180 days of

the alleged discrimination.?” However, this “time period is extended to 300 days if ‘the person

aggrieved has initially instituted proceedings with a State or local agency with authority to grant

or seek relief from such practice[,]’” such as in Louisiana.”®

Here, there is no dispute that Newell filed a charge with the EEOC.”? The Fifth Circuit

“interprets what is properly embraced in review of a Title VII claim somewhat broadly, not solely

2 Priester v. J. P. Morgan Chase Bank N.A., 708 F.3d 667, 678 (5% Cir. 2013).

See Stripling v. Jordan Production Co., LLC, 234 F.3d 863, 872-73 (5% Cir. 2000).

26 ECF No. 6.

27 A2 U.S.C. § 2000e-5(e)(1); Taylor v. Books A Million, Inc., 296 F.3d 376, 378~79 (Sth Cir. 2002).

28 Conner v. Louisiana Dep't of Health & Hospitals, 247 F. App'x 480, 481 (Sth Cir. 2007) (quoting 42 U.S.C. §

2000e—5(e)).

22 ECF No. 3-2.

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.’”°° The circuit does not

require that an EEOC charge allege a prima facie Title VII case in order to satisfy the exhaustion

requirement.*! While Newell’s EEOC Charge does not state a prima facia Title VII claim, it fairly

encompasses the claims asserted in her complaint. The charge specifically references

discrimination based on religion and race. The charge also refers to Newell’s allegations that APC

_ failed to promote her, and that it terminated her on the grounds of race and religion.*”

With respect to timeliness, neither the sparse allegations of Newell’s complaint nor the

summary. of Newell’s EEOC Charge show whether all the conduct at issue fell within the 300-day

window to file a timely EEOC charge. APC, however, points to Newell’s affidavit, which recounts

a specific incident where Newell requested a promotion, and the position—-APC’s Director of

Community Engagement and Economic Development—was offered to another person outside

Newell’s protected class.*7 APC contends that, based on the timeline reflected in Newell’s EEOC

file, this incident occurred no later than 2016, which is more than 300 days before Newell filed her

EEOC charge. To the extent that Newell’s Title VII claim is based on this one denied promotion,

the Court agrees that Newell did not timely exhaust her administrative remedies and cannot,

therefore, base her Title VII disparate treatment claim on this one discrete incident.**

30 Pacheco v. Mineta, 448 F.3d 783, 789 (Sth Cir. 2006) (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466

(Sth Cir. 1970)).

3 Id,

32 ECF No. 3-2 at 19-20. □

33 ECF No. 6-1 at 75.

34 Newell cannot rely on the so called “continuing violation” doctrine to wrap this incident into her disparate treatment

claim even if other incidents occurred within the 300-day period. “Claims alleging discrete acts are not subject to the

continuing violation doctrine; hostile workplace claims are.” Heath v. Bd. of Supervisors for S. Univ. & Agric. &

Mech, Coll., 850 F.3d 731, 737-39 (Sth Cir. 2017). Claims based on a “failure to promote” are based on “discrete

acts,” and thus are not subject to the doctrine. Grice, 216 F. App'x at 406-07.

Newell’s affidavit, however, refers to other instances where APC allegedly failed to

promote her. But she does not provide a timeline for these other instances, nor does she provide

any facts about the promotions that were allegedly denied. Newell does allege that her ultimate

termination resulted from racial or religion animus, and she timely included this allegation in her

EECO Charge. The Court, therefore, cannot conclude that an amendment would be futile based on

Newell’s alleged failure to timely exhaust her administrative remedies.

Accordingly, the Court DENIES APC’s Motion to Dismiss the present complaint, and

GRANTS Newell’s request for leave to amend her Title VII disparate treatment claim. Newell

shall file an amended complaint within twenty (20) days that addresses the deficiencies outlined

in this ruling. The Court advises Newell to hew to the requirements of Swierkiewicz—as well as

the general pleading standards of Iqbal and Twombly—in amending her complaint. Once Newell

files her amended complaint, APC may then move to dismiss that amended complaint if Newell

has not cured the deficiencies outlined in this ruling.

B. Title VII Hostile Work Environment Claim

APC next challenges Newell’s claim of a hostile work environment. A claim of race or .

religious-based harassment requires proof that the plaintiff “(1) belongs to a protected group; (2)

was subjected to unwelcome harassment; (3) the harassment complained of was based on race [or

religion]; (4) the harassment complained of affected a term, condition, or privilege of employment;

(5) the employer knew or should have known of the harassment in question and failed to take

prompt remedial action.”3° Harassment affects a “term, condition, or privilege of employment” if

it is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create

an abusive working environment.”*° Harassment is sufficiently “severe or pervasive enough” to -

Ramsey y. Henderson, 286 F.3d 264, 268 (Sth Cir. 2002).

create a hostile work environment when it is “objectively hostile or abusive” meaning “an

environment that a reasonable person would find hostile or abusive’—and is subjectively

perceived by the victim as abusive.*” The Supreme Court has “emphasized ... that the objective

severity of harassment should be judged from the perspective of a reasonable person in the

plaintiffs position.”°* This objective inquiry requires that the Court consider “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.”* “[N]o single factor is required.””°

As with Newell’s disparate treatment claim, the sparse allegations of her complaint do not

state a plausible Title VU hostile workplace claim. The complaint merely states in a conclusory

fashion that Newell was subjected to “a hostile work environment due to Plaintiff's race and

religion.”*! The EEOC Charge, quoted above, details two isolated incidents that might be

construed as allegations supporting a hostile work environment claim: (1) “Monique Boulet,

Executive Director, came into my office multiple times yelling and screaming at me. The last time

Ms. Boulet came into my office, she knocked things off my desk and stated that I attacked her and

screamed ‘Call the Police,’” and (2) “I was told by Ms. Godeaux that I just needed to pray ... I

told Ms. Godeaux that I was uncomfortable with that line of conversation, but Ms. Godeaux

continued to discuss prayer.”“? With respect to the first incident, Newell’s account does not reveal

any facts showing religious or race-based animus. Newell’s account of the second incident appears

to show only that a co-worker asked her to pray and that the co-worker discussed prayer on a single

37 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367 (1993).

38 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).

39 Harris, 510 U.S. at 23, 114 S.Ct. 367.

40 Td.

41 ECF No. | at 3.

#2 ECF No. 3-2 at 19-20.

occasion. Isolated incidents generally are not sufficient to support a Title VII hostile work

environment claim unless they are sufficiently severe as “to alter the conditions of the victim’s

employment and create an abusive working environment.’”*? Merely offensive conduct, even if

severe, is not actionable under Title VII unless it relates to a protected characteristic—here, race

or religion. The allegations in Newell’s complaint and her EEOC Charge do not plead facts

showing harassment that is severe or pervasive; or harassment that is based on race or religion.

Newell also requests leave to amend her complaint to add additional factual allegations

from her affidavit to support a hostile work environment claim. It is unclear whether these

allegations show conduct that is sufficiently “pervasive or severe,” or conduct that is motivated by

racial or religious animus. However, the Court cannot conclude that an amendment would be futile.

Accordingly, the Court DENIES APC’s Motion to Dismiss the present complaint, and GRANTS

Newell’s request for leave to amend her Title VII hostile environment claim. Newell shall file an

amended complaint within twenty (20) days that addresses the deficiencies outlined in this ruling.

Once Newell files her amended complaint, APC may then move to dismiss that amended complaint

if Newell has not cured the deficiencies outlined in this ruling.

C. Title VII Retaliation Claim.

Finally, APC challenges Newell’s retaliation claim. To state a prima facie case of

retaliation under Title VII, Ned must show that “(1) [she] participated in an activity protected by

Title VII; (2) [her] employer took an adverse employment action against [her]; and (3) a causal

8 Ramsey, 286 F.3d at 268. .

“4 Howard v. United Parcel Serv., Inc., 447 Fed. Appx. 626, 632 (5th Cir. 2011) (“[T]he Supreme Court has warned

that these high standards are intentionally demanding to ensure that Title VII does not become a general civility code,

and when properly applied, they will filter out complaints attacking the ordinary tribulations of the workplace, such

as the sporadic use of abusive language.”) (quoting Howard v. United Parcel Serv., Inc., 447 Fed. Appx. 626, 632 (Sth

Cir. 2011)).

10

connection exists between the protected activity and the adverse employment action.”*> The

complaint and Newell’s EEOC Charge allege that she was terminated in retaliation for

complaining about discrimination and harassment on the basis of race and religion. But, again,

Newell’s allegations consist largely of conclusions and formulaic recitations of the elements of a

retaliation claim under Title VII. As with her other claims, Newell requests leave to amend her

complaint. As with her other claims, the Court cannot conclude that an amendment would be futile.

Accordingly, the Court DENIES APC’s Motion to Dismiss the present complaint, and GRANTS

Newell’s request for leave to amend her Title VII retaliation claim. Newell shall file an amended

complaint within twenty (20) days that addresses the deficiencies outlined in this ruling. Once

Newell files her amended complaint, APC may then move to dismiss that amended complaint if

Newell has not cured the deficiencies outlined in this ruling.

IV.

CONCLUSION

For the foregoing reasons, the Court DENIES APC’s Motion to Dismiss [ECF No. 3]

without prejudice. Newell’s request for leave to amend her complaint is GRANTED. Newell shall

file an amended complaint within twenty (20) days of the date of this ruling that addresses the

deficiencies identified herein.

THUS DONE in Chambers on this 22nd day of February, 2022.

UNITED STATES DISTRI DGE

45 Newbury v. City of Windbury, Tx., 991 F.3d 672, 678 (5 Cir. 2021) (citing McCoy v. City of Shreveport, 492 F.3d

551, 556-57 (5th Cir. 2007)).

11