Opinion

Privott v. City of New Orleans

Court
District Court, E.D. Louisiana
Filed
Aug 12, 2024
Cited by
0 cases
Authority
More cited than 31.4%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SHANDRELL M. J. PRIVOTT CIVIL ACTION

VERSUS NO: 23-1848

CITY OF NEW ORLEANS, ET AL. SECTION: "J"(5)

ORDER & REASONS

Before the Court is a Motion to Dismiss (Rec. Doc. 14) filed by Defendant the

Regional Transit Authority of New Orleans (“RTA”). Plaintiff Shandrell Privott has

filed an opposition (Rec. Doc. 19) to which the RTA has replied (Rec. Doc. 23).

Considering the motions, the memoranda, the record, and the law, the Court finds

the motion should be DENIED.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff Shandrell M. J. Privott has been employed by the New Orleans Police

Department (“NOPD”) since 2002 and is currently serving as a sergeant. From

December 2019 until March 17, 2022, Plaintiff was assigned to serve as a Transit

Police Unit Commander with RTA. RTA describes this as a “loan” while Plaintiff

characterizes her time with RTA as joint employment. Plaintiff served in this role

until RTA asked the NOPD to terminate her assignment and replace her with

someone else. During the course of her assignment, Plaintiff alleges that her

supervisor at RTA, Chief Security Officer Robert Hickman, sexually harassed her

over a period of months, “routinely propositioning her for sex.” (Rec. Doc. 1, at 3).

After Plaintiff complained about this harassment, Plaintiff asserts she was retaliated

against, discriminated against based on her sex, and wrongfully terminated from her

joint employment as the RTA’s Transit Police Unit Commander. Plaintiff has now

filed Title VII discrimination and retaliation claims and state law employment

discrimination claims against the City of New Orleans and against the RTA. The RTA

has now moved to dismiss the claims against it, arguing that Plaintiff was never an

employee of the RTA and therefore that her employment claims against them must

be dismissed.

LEGAL STANDARD

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

facts to “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is facially plausible when the plaintiff pleads facts that allow the court to

“draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. The factual allegations in the complaint “must be enough to raise a right

to relief above the speculative level.” Twombly, 550 U.S. at 555. “[D]etailed factual

allegations” are not required, but the pleading must present “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. 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, 232

(5th Cir. 2009). However, “‘conclusory allegations or legal conclusions masquerading

as factual conclusions will not suffice to prevent a motion to dismiss.’” Beavers v.

Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation omitted).

DISCUSSION

Plaintiff has brought claims against the RTA under Title VII and under

Louisiana Employment Discrimination Law, asserting that the RTA was her “joint

employer” while she was on loan to them from the NOPD. The RTA has moved to

dismiss these claims, arguing that the “joint employer” theory of liability is

inapplicable to political subdivisions like the RTA.

Title VII serves to hold employers liable for discrimination against any

individual on the basis of a number of protected categories including sex. Title VII

defines an employer as “a person engaged in an industry affecting commerce who has

fifteen or more employees for each working day in each of twenty or more calendar

weeks in the current or proceeding calendar year, and any agent of such person. . . .”

42 U.S.C. § 2000e(b). It is also possible for an entity to be held as an employer even if

no traditional, direct employment relationship exists. However, the RTA asserts that

the tests used by the Fifth Circuit to establish liability for these types of indirect

employment, namely the single enterprise test and the joint employer test, are

inapplicable to government entities.

In support of this assertion the RTA cites Trevino v. Celanese Corp. F.2d 397

(5th Cir. 1983). In Trevino the Fifth Circuit stated in a footnote that “[the single

integrated enterprise test] is not readily applicable to governmental subdivisions, for

it was ‘developed by the National Labor Relations Board to determine whether

consolidation of separate private corporations is proper in determining the relevant

employer for purposes of enforcing the National Labor Relations Act.’” Id. at 404

fn.10. Although this language may fall “a little shy of a bright-line rule” Dyas v. City

of Shreveport, 2017 WL 3711898, at *3 (W.D. La. Aug. 28, 2017), it has been restated

by the Fifth Circuit and by District Courts within the Fifth Circuit. See Turner v.

Baylor Richardson Med. Ctr., 476 F.3d 377, 344 (5th Cir. 2007); Gogreve v. Downtown

Development Dist., 426 F.Supp.2d 383, 390 (E.D. La. Mar. 30, 2006).

Additionally, in Karagounis v. Univ. of Texas Health Sci. Ctr. at San Antonio,

1999 WL 25015, at *2 (5th Cir. 1999), the Fifth Circuit stated that the single employer

or single enterprise test was very closely related to the joint employer test. The Court

stated,

Given the similarities between the two, we are constrained by Trevino

to hold that the governmental subdivision rule we applied within the

single employer doctrine also applies to the joint employer theory. To

hold otherwise would, in effect, allow an end run around the precedent

we established in Dumas and Trevino.

Id. Therefore, the RTA asserts that because it is a political subdivision of the State of

Louisiana, Plaintiff cannot establish liability under either the single employer or joint

employer test, and therefore the claims against the RTA must be dismissed as a

matter of law.

Plaintiff does not dispute that the RTA is a political subdivision; however,

Plaintiff asserts that even though she used the phrase “jointly employed” in her

complaint, “she was, in fact, employed by the RTA in the traditional sense of the

word.” (Rec. Doc. 19, at 4-5). Plaintiff urges the Court to apply the hybrid economic

realities/common law control test (“Hybrid Test”) rather than the single enterprise or

joint employment tests that the RTA asserts are relevant. Under the Hybrid Test, the

Court must ask whether the putative employer has “[t]he right to control [the]

employee’s conduct.” Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117,

119 (5th Cir. 1993). This question calls the Court to focus on:

whether the alleged employer has the right to hire and fire the

employee, the right to supervise the employee, and the right to set the

employee’s work schedule. The economic realities component of [the]

test has focused on whether the alleged employer paid the employee’s

salary, withheld taxes, provided benefits, and set the terms and

conditions of employment.

Id. Plaintiff alleges that she was supervised by RTA’s Chief of Security, Robert

Hickman, her alleged sexual harasser. Mr. Hickman assigned her tasks, and

she received her day-to-day instructions from him. She reported to work at the

RTA’s office and used an RTA email account. It was the RTA who asked the

NOPD to end Plaintiff’s assignment as Transit Police Unit Commander.

Plaintiff was also issued an RTA vehicle, and she was paid an hourly wage by

the RTA on top of the hourly wages she earned through the NOPD.

Plaintiff asserts that these facts when taken as true are sufficient to

support a finding that she was directly employed by the RTA for purposes of

Title VII liability. Plaintiff would analogize her employment situation as one

similar to an individual employed by a staffing agency who was then assigned

to work at a different company such as the employee in Burton v. Freescale

Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015). The court in Burton found

that even though the employee was technically employed by the staffing

agency, the assignee company supervised the employee and could demand the

employee’s termination from the assignment. Id. at 227. The Fifth Circuit

found that these facts were sufficient to support a finding that there was an

employment relationship on summary judgment using the Hybrid Test.

Plaintiff asserts that her case, which is at the motion to dismiss stage rather

than summary judgment, is even stronger than Burton’s because in addition

to the supervision, she was also paid a wage by the RTA.

Additionally, Plaintiff points out that the Hybrid Test should be

employed before turning to either the joint employer or single employer test.

“[T]he hybrid test should be used as an initial inquiry to resolve, if need be,

whether a plaintiff is an employee of the defendant (or one of the defendants,

in a multi defendant case) for the purposes of Title VII.” Schweitzer v.

Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir. 1997). Then, if the

plaintiff is found to be an employee of one defendant under the Hybrid Test,

the single or joint employer analysis can be used to determine whether an

additional defendant can be considered an employer.

Before the Court is essentially an issue of semantics over the use of the word

“joint”. Plaintiff does repeatedly describe her employment situation in her complaint

as joint. However, the use of this word alone is not enough to doom Plaintiff’s

complaint. The inquiry on a 12(b)(6) motion to dismiss is simply whether the Plaintiff

has alleged facts sufficient to support her claims. In fact, the Court is instructed to

ignore “‘conclusory allegations or legal conclusions masquerading as factual

conclusions [which] will not suffice to prevent a motion to dismiss.’” Beavers, 566 F.3d

at 439 (citation omitted). The use of the word “joint” is such a legal conclusion—a fact

which the RTA clearly recognizes since they dedicate their motion to trying to defeat

said legal conclusion.

Additionally, upon examination, the cases the RTA cites to support its

contention that a government entity may not be held liable as a joint employer are

distinguishable from the allegations in this case. In the cases cited by the RTA, none

of the plaintiffs were “loaned out” by their parent entity to work for a separate

government subdivision. For example in Gogreve v. Downtown Dev. Dist., 426 F.Supp.

3d 383 (E.D. La. 2006), the court applied Trevino in finding that the plaintiff could

not maintain a claim against the Downtown Development District Board of Directors

when her actual employer was the Downtown Development District itself. The Board

of Directors did not “loan” the plaintiff to the Downtown Development District, but

instead was simply an administrative body overseeing its operations. Likewise in

Davis v. Gavin, 2021 WL 3573040 (W.D. La. Aug. 12, 2021), the court dismissed a

claim against Caddo Parish for an employee who was employed solely by the

Sewerage District, which like the RTA, is a separate and independent legal entity.

However, in Davis, there was no allegation that the plaintiff was loaned or assigned

to work in the Sewerage District and instead was simply a direct and sole employee

of the District itself rather than the parish.

Even Trevino and Karagounis can be distinguished in this way. In Trevino, the

plaintiff was not suing any government entities at all, while in Karagounis, the

plaintiff was employed by a hospital and attempted to extend his suit to the county

hospital district that oversaw the hospital. Furthermore, the rationale behind the

non-aggregation rule established in these cases does not reasonably extend to this

scenario. It seems clear that the Fifth Circuit intended to prevent plaintiffs in

employment discrimination cases against governmental entities from bringing their

claims up the administrative chain and suing supervising or superior governmental

entities that could not be considered the plaintiff's direct employer.

Unlike in these cases and in the others relied upon by the RTA, Plaintiff in this

case was loaned to the RTA, and during the period of her service there she was

supervised, paid, and then terminated by the RTA, all of which are characteristics

indicative of employment under the Hybrid Test. The Court does not need to resort

to the aggregation tests suggested by the RTA which would be inapplicable to

governmental entities. When looking past Plaintiff's misplaced legal conclusion of

“joint” employment her complaint, Plaintiffs allegations satisfy the Hybrid Test for

the purposes of this motion to dismiss. Likewise, this Court will not dismiss Plaintiffs

state law discrimination claims.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that the Motion to Dismiss (Rec. Doc. 14) is

DENIED.

New Orleans, Louisiana, this 12th day of August, 2024.

CARL J. BAR

UNITED ST DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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