Merida v. Board of Commissioners of the Southeast Louisiana Flood Protection Authority - East

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

EDGAR L. MERIDA CIVIL ACTION

VERSUS NO. 23-1992

BOARD OF COMMISSIONERS OF THE SECTION “O”

SOUTHEAST LOUISIANA FLOOD

PROTECTION AUTHORITY–EAST, ET AL.

ORDER AND REASONS

Before the Court in this employment-discrimination case is the renewed

motion1 of Defendants—the Board of Commissioners of the Southeast Louisiana

Flood Protection Authority–East (the “Board”), Kelli Chandler, Terrance Durnin,

Michael Brenckle, Donald Juneau, and Kenny Pinkston—for partial judgment on the

pleadings under Federal Rule of Civil Procedure 12(c). Defendants contend that the

Court should dismiss all of Merida’s claims except (1) his Title VII claim against the

Board, and (2) his 42 U.S.C. § 1983 claims against the Board and Chandler.

The Court obliges in all but two respects. First, because Defendants have not

shown that Merida seeks relief on his state-law equal-protection claims that would

invade the exclusive jurisdiction of the Louisiana Civil Service Commission, the Court

does not dismiss those claims now. And second, because Merida has pleaded facts

plausibly establishing that Pinkston’s alleged conduct was sufficiently severe or

pervasive to alter the conditions of Merida’s work environment, the Court does not

dismiss Merida’s Section 1983 hostile-work-environment claim against Pinkston at

1 ECF No. 26.

this stage. All other claims the Rule 12(c) motion targets are prescribed, inadequately

pleaded, legally deficient, or abandoned. Accordingly, for these reasons and those that

follow, the motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This employment dispute arises from racial and religious discrimination that

Plaintiff Edgar Merida, a self-described “Hispanic–Jewish senior male,”2 alleges that

he endured while working for the Board as a State Civil Service “classified”3 police

officer.4 At the core of the case is Merida’s claim that Defendants—the Board, four of

Merida’s former co-employees, and the administrator empowered to hire and fire the

Board’s State Civil Service classified police officers—subjected Merida to a hostile

work environment, conspired to deprive him of his rights as a State Civil Service

classified police officer, and fired him in violation of State Civil Service rules.5

The Board “govern[s]” the Southeast Louisiana Flood Protection Authority–

East, “a State instrumentality”6 that wields “authority over and . . . management,

oversight and control of” the East Jefferson, Lake Borgne, and Orleans Levee

Districts. See generally LA. STAT. ANN. §§ 38:330.1 & 38:330.2. Louisiana law

empowers the Southeast Louisiana Flood Protection Authority–East to “employ a

superintendent of police security” as well as “police security personnel” “in the

2 ECF No. 28 at 1.

3 Louisiana law distinguishes between the “classified” and the “unclassified” civil service. See

LA. CONST. ANN. art. X, § 2. A permanent, classified civil-service employee has a protected property

interest in his job. Lange v. Orleans Levee Dist., 2010-0140, p. 6 (La. 11/30/10); 56 So. 3d 925, 930.

4 See generally ECF No. 1-1 at 4–19 (original petition); ECF No. 23 (first supplemental and

amending complaint). The facts set out in this section are drawn from uncontested Louisiana law and

the allegations of the original petition and the first supplemental and amending complaint.

5 See generally ECF No. 1-1 at 4–19; ECF No. 23.

6 ECF No. 1-1 at 5 ¶ 11.

interest of public safety.” See LA. STAT. ANN. § 38:330.7(B)–(C). Commissioners of

the Board in turn “exercise authority over employees” of the Orleans Levee District

Police Department and the East Jefferson Levee District Police Department.7

Merida self-describes as a man of “Hispanic heritage and Jewish religious

belief.”8 The Board hired him “as a state civil service Police Officer IIA” in late August

2019 and assigned him to the East Jefferson Levee District Police Department.9 Just

over four months later, in early January 2020, the superintendent of the Board-

controlled police departments, Kerry Najolia, “temporarily assigned” Merida to an

“FBI Task Force Program as an investigator from” the East Jefferson Levee District

Police Department.10 The investigator position that Merida temporarily held “later

became a State Civil Service Classified position” titled “Police Investigator.”11

About seven months after Merida received his temporary assignment from

Najolia, in early August 2020, a representative from the Louisiana State Civil Service

announced openings for the “newly created” “Police Investigator” position and

solicited applications.12 Merida applied for the position and “was one of the applicants

recommended for appointment by an authorized civil service panel.”13

At some unstated later point, Najolia instructed Merida to resign from his

“Police Officer II A” position “for budget purposes only, simultaneously accept the

classified position of Police Investigator, and remain assigned to the FBI Task Force

7 Id. at 3 ¶ 1(A).

8 Id. at 8 ¶ 29.

9 Id. at 4 ¶ 3.

10 Id. at 4 ¶ 4.

11 Id. at 4 ¶ 5.

12 Id. at 4 ¶ 6.

13 Id. at 4 ¶ 7.

Program.”14 Merida “[f]ollow[ed]” Najolia’s instructions: Merida resigned from his

“Police Officer II” position and “immediately accepted the promotion” to the position

of “classified Police Investigator” in early September 2020.15

Before Merida’s promotion to “classified Police Investigator,”16 Najolia

“determined [that] each [Peace Officer Standards and Training (POST)] classified

and certified police officer would serve a normal 12[-m]onth civil-service probationary

period before becoming a permanent classified police officer.”17 That meant Merida’s

12-month probationary period as a “Police Officer II A” would have ended in late

August 2020, and Merida’s 12-month probationary period as a “Police Investigator”

would have ended in September 2021.18 Merida “is informed and believes” that

Najolia had authority to decide the applicable probationary periods because Merida

“believes” that Najolia, as the Board’s Superintendent of Police Security, “is the

statutory appointing authority”—i.e., the person “with the power to hire, assign, fire

and promote [the Board’s] commissioned classified state civil service police officers.”19

At some unstated point later, Defendant Terrance Durnin, an employee of the

East Jefferson Levee District Police Department, “wrote a voluntary statement” that

“criticiz[ed]” Najolia and the federal-task-force-officer program in which Merida was

participating.20 In the statement, Durnin “accused Najolia of undermining” the

14 Id. at 4–5 ¶¶ 8 & 10 (emphasis deleted).

15 Id. at 5 ¶ 10 (emphasis deleted).

16 Id. (emphasis deleted).

17 Id. at 6 ¶ 15.

18 Id. at 7 ¶ 18.

19 Id. at 6 ¶ 14.

20 Id. at 7 ¶ 20.

“authority” of Defendant Kelli Carol Chandler.21 At the time, Chandler was serving

as the “Regional Director” of the Board, the Orleans Parish Levee District Police

Department, and the East Jefferson Levee District Police Department.22 Chandler

was also “the designated appointing authority,”23 meaning that she had “the power

to hire, assign, fire and promote” the Board’s classified civil-service police officers,

including Merida.24 In the same statement, Durnin “accused” Merida and two others

of being “part of Najolia’s inner circle.”25 Durnin also “alleged” that “the [federal-task-

force-officer] programs were creating a morale issue within the agency because of

. . . lucrative assignments” given to members of “Najolia’s inner circle.”26

In mid-October 2021, Chandler held a meeting “to discuss the allegations

contained in Durnin’s statements and the operation of the [federal-task-force-officer]

programs.”27 During the meeting, Merida told Chandler, Durnin, and the other

attendees that the allegations in Durnin’s statement “were biased and incorrect.”28

One of Merida’s co-employees, Defendant Kenny Pinkston, “entered the meeting” and

asked Merida, “[h]ow is my favorite Mexican–Spic–Jew Investigator[?]”29 The remark

caused Merida “embarrassment, humiliation, and extreme mental anguish.”30 This

was not the first time Pinkston directed derogatory remarks at Merida; “on

21 Id. at 7 ¶ 21.

22 Id. at 3 ¶ 1(B).

23 Id. at 7 ¶ 21; see also id. at 3 ¶1(B)

24 Id. at 6 ¶ 14.

25 Id. at 7 ¶ 21.

26 Id. at 8 ¶ 24.

27 Id.

28 Id. at 8 ¶ 23.

29 Id. at 8 ¶ 26 (emphasis deleted).

30 Id. at 8 ¶ 27.

. . . numerous occasions,” Pinkston “referred to [Merida] as a Jewish–Spic.”31 For her

part, Chandler “took no action before, during[,] or after the [mid-October 2021]

meeting” to stop Pinkston and others “from singling [Merida] out for ridicule and

disparate treatment because of his Hispanic heritage and Jewish religious belief.”32

At some unidentified point, presumably after the mid-October 2021 meeting,

Chandler contacted the FBI “to file a formal disciplinary complaint” against Merida.33

For that complaint, Chandler sought to establish cause to terminate Merida because,

according to Chandler, Merida had “illegally revealed classified FBI information.”34

But an FBI agent “informed Chandler the information she believed to be classified

was in fact public.”35

About four months after the mid-October 2021 meeting, in mid-February 2022,

Merida and Patrick Conaghan, another “classified Police Investigator[ ],” attended a

“business meeting” of the Board “to speak on behalf of” the federal-task-force-officer

programs.36 Merida spoke about Chandler’s decisions to stop the Board’s

participation in federal-task-force-officer programs and to reassign the Board’s three

police investigators—Merida, Conaghan, and Jerald Holmes.37 Merida also told the

Board that he did not know why he and Conaghan were the “target of comments and

31 Id. at 8 ¶ 28 (emphasis deleted).

32 Id. at 8 ¶ 29.

33 Id. at 9 ¶ 30.

34 Id.

35 Id. at 9 ¶ 31.

36 Id. at 9 ¶ 32.

37 Id. at 9 ¶ 34.

untruths” in Durnin’s statement.38 During the meeting, Durnin “gave” Merida and

Conaghan “the middle finger” and “muttered” “Fucking Spic” to Merida.39

Less than a month later, in March 2022, the Board fired Merida.40 Chandler

and the Board determined that Merida was “a probationary employee” who had not

yet completed a 24-month probationary period for the “Police Investigator” position.41

As a result of that determination, Merida did not receive a pre-termination hearing

or an opportunity to be reinstated to the “Police Officer IIA” position he formerly

held.42 That determination also conflicted with what Najolia had “told” Merida–i.e.,

that Merida “was a twelve[-]month probationary Police Investigator, a permanent

Police Officer IIA, and [that] Merida would not receive a reduction in salary.”43

The Board demoted—but did not fire—two other police investigators,

Conaghan (a white man) and Holmes (a black man).44 Unlike Merida, Conaghan and

Holmes were permitted to return “to their previous permanent civil service positions

of Police Officer IIA, with all Civil Service and Family Medical Leave benefits.”45

The same day Merida was fired, Defendant Michael Brenckle, an employee of

the Orleans Levee District Police Department, sent an email to Orleans Levee

District Police Department officers, “informing them [Merida] was no longer allowed

access to [Orleans Levee District Police Department] and [East Jefferson Levee

38 Id. at 9 ¶ 35.

39 Id. at 9 ¶ 33 (emphasis deleted).

40 ECF No. 23 at 2 ¶ 2 (amending ¶ 38 of the original petition).

41 ECF No. 1-1 at 10–11 ¶¶ 40–41.

42 Id. at 10 ¶ 40.

43 Id. at 11 ¶ 41 (emphasis deleted).

44 Id. at 11 ¶ 42.

45 Id.

District Police Department] police stations or any other [Board] property.”46 In the

email, Brenckle said that Merida “had an active arrest warrant” issued by the New

Orleans Police Department and that Merida had been charged with disturbing the

peace.47 Brenckle urged Orleans Parish Levee District Police Department “employees

to use caution if confronted by [Merida].”48 Defendant Donald Juneau forwarded

Brenckle’s email to officers of the East Jefferson Levee District Police Department.49

At some unidentified point after Merida was fired, Merida went to a New

Orleans Police Department station to turn himself in.50 But Merida “was informed

there was no outstanding criminal warrant issued for his arrest.”51 Despite being

informed “there was no outstanding warrant for [Merida’s] arrest,” Brenckle

“continued to insist” that Merida “was not allowed on [the Board’s] properties.”52

Two days after Merida was fired, Conaghan visited the Orleans Levee District

Police station “to discuss his upcoming retirement with . . . Brenckle.”53 During the

conversation, Brenckle called Merida a racial slur that suggested Merida was “a

Hispanic person who needs mental care and will cause a criminal disturbance.”54

Ultimately, Chandler and the Board allowed Conaghan “to exhaust his civil service

and family leave benefits,” “but did not grant [Merida] the same courtesy.”55

46 Id. at 11 ¶ 45.

47 Id. at 11 ¶ 46.

48 Id. at 12 ¶ 48.

49 Id. at 12 ¶ 50.

50 Id. at 12 ¶ 51.

51 Id. at 12 ¶ 52.

52 Id.

53 Id. at 12 ¶ 53.

54 Id. at 13 ¶ 55.

55 Id. at 13 ¶ 56.

Merida appealed his firing to the State Civil Service Commission.56 During

those proceedings, a civil-service referee ruled that (1) Merida did not assert an

“actionable claim” for political-belief discrimination based on Merida’s being

“considered to be a friend of Najolia and not aligned with . . . Chandler’s supporters”;57

(2) the Civil Service Commission lacked jurisdiction over Merida’s hostile-work-

environment claims;58 and (3) Merida lodged “sufficient” challenges (a) to the Board’s

determination that Merida was not a permanent employee as of his March 2022

termination and (b) to Chandler’s status as “the proper appointing authority.”59 Those

challenges “were set for a hearing,”60 and the proceedings remain pending.

With those pending Civil Service Commission proceedings in the background,

Merida brought a wide-ranging employment-discrimination lawsuit in state court in

April 2023.61 Merida sued (1) the Board; (2) Chandler, “individually and as Regional

Director and/or Appointing Authority for” both the Orleans Levee District Police

Department and the East Jefferson Levee District Police Department; (3) Durnin,

“individually and as an employee of” the East Jefferson Levee District Police

Department; (4) Brenckle, “individually and as an employee of” the Orleans Levee

District Police Department; (5) Juneau, “individually[ ] and as an employee of” the

Orleans Levee District Police Department; and (6) Pinkston, “individually and as an

employee of” the East Jefferson Levee District Police Department.62

56 Id. at 13 ¶ 57.

57 Id. at 13 ¶ 61.

58 Id. at 14 ¶ 62.

59 Id. at 14 ¶ 63.

60 Id.

61 See generally ECF No. 1-1 at 3–18.

62 Id. at 3–4 ¶¶ 1(A)–1(F).

Defendants removed the case to this Court based on federal-question

jurisdiction,63 28 U.S.C. § 1331, and then moved for partial judgment on the pleadings

under Rule 12(c).64 In response, Merida supplemented and amended his original

petition,65 and the Court denied as moot Defendants’ partial Rule 12(c) motion.66

In his original petition67 and first supplemental and amending complaint,68

Merida does not clearly identify (1) the causes of action he intends to assert; (2) the

Defendant(s) he intends to assert those causes of action against; or (3) the capacity in

which each Defendant is sued on each cause of action.69 But the Court’s best

estimation is that Merida intends to bring these causes of action:

1. Conspiracy: Merida asserts a conspiracy claim under Section 1983 against

Chandler, Durnin, Juneau, and Pinkston based on his allegation that

Chandler “conspired with [D]efendants Durnin, Juneau, and Pinkston and

carried out a plan to create a hostile work environment for [Merida]; target

[Merida] for disparate treatment; and under color of law deprive [Merida]

of his property right as a civil[-]service employee of [the Board] and

employment in law enforcement in the future without just cause.”70

63 See generally ECF No. 1.

64 ECF No. 12

65 ECF No. 23.

66 ECF No. 24.

67 ECF No. 1-1 at 3–18.

68 ECF No. 23.

69 The scheduling order required Merida to “provide . . . a letter setting out (1) all causes of

action asserted, (2) specific federal or state law basis for each cause of action, (3) a list of which specific

causes are being brought against each defendant, and (4) whether each defendant is being sued as an

individual and/or in his or her official capacity.” ECF No. 13 at 2. Merida timely submitted such a

letter, ECF No. 14, but it does not meaningfully illuminate the causes of action he intends to assert.

70 ECF No. 23 at 1 ¶ 1 (amending ¶ 37 of the original petition).

2. The Louisiana Constitution’s Equal-Protection Clause: Merida

asserts a claim against the Board, Chandler, Durnin, and Pinkston under

the Equal-Protection Clause of the Louisiana Constitution, LA. CONST.

ANN. art. 1, § 3, based on Merida’s allegation that Defendants denied him

“equal protection of the laws” and arbitrarily discriminated against him

“because of his race, heritage, culture, political ideal or affiliations.”71

3. Employment Discrimination: Merida asserts claims against the Board,

Chandler, Durnin, Juneau, and Pinkston for intentional discrimination in

employment and for the creation of a hostile work environment under (A)

the Louisiana Employment Discrimination Law (“LEDL”), LA. STAT.

ANN. § 23:332(A)(1)–(2); (B) Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq.; (C) 42 U.S.C. § 1981; and (D) 42 U.S.C. § 1983.72

4. Tort Claims: Merida appears to assert several tort claims, including (A)

negligent-supervision claims against the Board and Chandler for “fail[ing]

to properly supervise Durnin, Pinkston, Juneau, and Brenckle to prevent

the creation of a hostile work environment, disparate treatment, and [the]

unlawful termination of” Merida;73 and (B) defamation claims against

Brenckle and Juneau based on the allegation that “[t]he accusations made

against [Merida] . . . in a public email constitute an unwarranted, false,

71 Id at 2 ¶ 3 (amending ¶ 64 of the original petition).

72 Id.

73 Id.

malicious and libelous attack on his distinguished career in law

enforcement and on his personal and professional reputation.”74

Now, Defendants renew their partial motion for judgment on the pleadings

under Rule 12(c), contending that the Court should dismiss all of the claims Merida

intends to assert except (1) his Title VII discrimination claims against the Board, (2)

his Section 1983 claims against the Board and Chandler.75 Merida opposes.76

II. LEGAL STANDARD

“After the pleadings are closed—but early enough not to delay trial—a party

may move for judgment on the pleadings.” FED. R. CIV. P. 12(c). “The standard for

dismissal ‘is the same as that for dismissal for failure to state a claim under Rule

12(b)(6).’” Johnson v. Miller, 98 F.4th 580, 583 (5th Cir. 2024) (quoting Bosarge v.

Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015)). So, to survive a Rule

12(c) motion, “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 (2009) (quoting Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). “Although ‘[courts] accept all well-pled

facts as true, construing all reasonable inferences in the complaint in the light most

74 ECF No. 1-1 at 15 ¶ 65.

75 ECF No. 26.

76 ECF No. 28.

favorable to the plaintiff, conclusory allegations, unwarranted factual inferences, or

legal conclusions are not accepted as true.’” Hodge v. Engleman, 90 F.4th 840, 843

(5th Cir. 2024) (quoting Allen v. Hays, 65 F.4th 736, 743 (5th Cir. 2023)).

III. ANALYSIS

Defendants move for partial judgment on the pleadings under Rule 12(c),

contending that the Court should dismiss all of Merida’s claims except (1) his Title

VII claim against the Board, and (2) his Section 1983 claims against the Board and

Chandler.77 The Court considers each of Defendants’ arguments in turn.

A. Equal-Protection Claims under the Louisiana Constitution

First, Defendants contend that the Court should dismiss Merida’s claims under

the Louisiana Constitution’s Equal Protection Clause, see LA. CONST. ANN. art. I,

§ 3, because those claims come within the State Civil Service Commission’s exclusive

jurisdiction, see LA. CONST. ANN. art. X, § 12.78 Defendants contend that the State

Civil Service Commission has exclusive jurisdiction to decide Merida’s equal-

protection claims in the first instance because those claims arise from alleged

discrimination in Merida’s civil-service employment with the Board.79 Defendants

reason that, because Merida’s equal-protection claims come within the State Civil

Service Commission’s exclusive jurisdiction, Merida cannot seek judicial relief on

those claims until the State Civil Service Commission renders a final decision.80 And

77 ECF No. 26.

78 ECF No. 26-1 at 8–10.

79 Id. at 9–10.

80 Id.

because the State Civil Service Commission has not yet rendered a final decision,

Defendants submit that the Court should dismiss Merida’s equal-protection claims.81

Merida rejoins that his Louisiana-law equal-protection claims are not subject

to the exclusive jurisdiction of the State Civil Service Commission.82 He reasons that

his equal-protection claims are “not within the scope”83 of the Commission’s “quasi-

judicial power”84 because the Civil Service Commission cannot award him money

damages.85 He adds that his equal-protection claims “are fully supplementary to any

remedy” he might receive through the State Civil Service Commission proceedings.86

Article X of “[t]he Louisiana Constitution grants legislative, executive, and

judicial powers to the [State Civil Service] Commission.” Holliday v. State ex rel. La.

Workforce Comm’n, Off. of Worker’s Comp., 2017-0013, p. 3 (La. App. 1 Cir. 6/14/17);

224 So. 3d 380, 381–82 (first citing LA. CONST. ANN. art. X, § 10(A)(1); then citing

LA. CONST. ANN. art. X, § 12(A); and then citing Hawkins v. State ex rel. Dep’t of

Health & Hosps., 613 So. 2d 229, 232 (La. Ct. App. 1st Cir. 1992)).

Section 10(A)(1)(a) of Article X of the Louisiana Constitution defines the State

Civil Service Commission’s executive and legislative powers:

Each commission is vested with broad and general rulemaking and

subpoena powers for the administration and regulation of the classified

service, including the power to adopt rules for regulating employment,

promotion, demotion, suspension, reduction in pay, removal,

certification, qualifications, political activities, employment conditions,

compensation and disbursements to employees, and other personnel

81 Id.

82 ECF No. 28 at 11–15.

83 Id. at 11.

84 Id.

85 Id. at 14.

86 Id. at 15.

matters and transactions; to adopt a uniform pay and classification plan;

to require an appointing authority to institute an employee training and

safety program; and generally to accomplish the objectives and purposes

of the merit system of civil service as herein established. . . . .

LA. CONST. ANN. art. X, § 10(A)(1)(a).

The State Civil Service Commission’s judicial power “is expressly limited to

removal and disciplinary cases,” Hawkins, 613 So. 2d at 232, and is defined in Section

12(A) of Article X of the Louisiana Constitution:

The State Civil Service Commission shall have the exclusive power and

authority to hear and decide all removal and disciplinary cases, with

subpoena power and power to administer oaths. It may appoint a referee,

with subpoena power and power to administer oaths, to take testimony,

hear, and decide removal and disciplinary cases. The decision of a referee

is subject to review by the commission on any question of law or fact upon

the filing of an application for review with the commission within fifteen

calendar days after the decision of the referee is rendered. If an

application for review is not timely filed with the commission, the

decision of the referee becomes the final decision of the commission as of

the date the decision was rendered. If an application for review is timely

filed with the commission and, after a review of the application by the

commission, the application is denied, the decision of the referee becomes

the final decision of the commission as of the date the application is

denied. The final decision of the commission shall be subject to review on

any question of law or fact upon appeal to the court of appeal wherein

the commission is located, upon application filed with the commission

within thirty calendar days after its decision becomes final. . . . .

LA. CONST. ANN. art. X, § 12(A).

Courts interpret Article X of the Louisiana Constitution “to grant exclusive

jurisdiction to the Civil Service Commission in those areas where the Commission

has exercised its broad and general rule-making power.” Akins v. Hous. Auth. of New

Orleans, 2003-1086, p. 3 (La. App. 4 Cir. 9/10/03), 856 So. 2d 1220, 1221 (internal

quotation marks and citation omitted), writ denied, 2003-2781 (La. 12/19/03), 861 So.

2d 574. That means “Louisiana district courts do not have jurisdiction over

employment[-]related disputes such as reinstatement, back pay, and merit increases

asserted by classified civil service employees against the state.” Kling v. La. Dep’t of

Revenue, 2018-1480, p. 14 (La. App. 1 Cir. 7/18/19); 281 So. 3d 696, 708, writ denied,

2019-01434 (La. 11/5/19); 281 So. 3d 671, and writ denied, 2019-01441 (La. 11/5/19);

281 So. 3d 671. “The thrust of the grant of exclusive jurisdiction over employment-

related disputes between employers and employees in civil service is to preclude the

district court from having concurrent jurisdiction with the Civil Service Commission

over such disputes.” Id. at 709 (citing Johnson v. Bd. of Supervisors of La. State Univ.

& Agr. & Mech. Coll., 45,105, p. 6 (La. App. 2 Cir. 3/3/10); 32 So. 3d 1041, 1046).

But the Civil Service Commission’s exclusive jurisdiction is limited. For

example, the Commission “has no subject matter jurisdiction over tort cases and

cannot award general monetary damages.” Id. (citing Johnson, 32 So. 3d at 1046). So,

Louisiana courts have concluded that Article X does not preclude a plaintiff from

bringing a claim for “damages beyond the scope . . . of the Commission’s jurisdiction.”

Barringer v. Robertson, 2015-0698, p. 3 (La. App. 1 Cir. 12/2/15); 216 So. 3d 919, 922

n.3, writ denied, 2016-0010 (La. 2/26/16); 187 So. 3d 1004; cf. Huval v. State ex rel.

Dep’t of Pub. Safety & Corrs., 2016-1857, p. 10–11 (La. 5/3/17); 222 So. 3d 665, 671–

72 (reasoning that Article X did not preclude wrongful-termination plaintiffs from

bringing tort claims in a Louisiana district court because the relevant state agency

was “powerless to award . . . the type of tort damages sought by plaintiffs”).87

87 Huval considered the jurisdiction of the State Police Commission. 222 So. 3d at 669–72. But

Huval is instructive because (1) “the State Police Commission’s power to hear and decide cases is

identical to that granted the State Civil Service Commission,” id. at 669 (internal quotation marks

and citation omitted); and (2) Huval “look[ed] to” Civil Service Commission cases for “guidance,” id.

Federal courts have similarly held that claims for “general tort damages” that

the Commission cannot award are not subject to the Commission’s exclusive

jurisdiction and can be brought in court. See, e.g., Pike v. Off. of Alcohol & Tobacco

Control of the La. Dep’t of Revenue, 157 F. Supp. 3d 523, 541 (M.D. La. 2015); Jones

v. Gee, No. 18-CV-5977, 2020 WL 564956, at *6 (E.D. La. Feb. 5, 2020); Edmonds v.

New Orleans City, No. 16-CV-298, 2017 WL 2671690, at *4 (E.D. La. June 20, 2017).

Here, Defendants have not carried their burden to show that the Court should

dismiss Merida’s Louisiana-law equal-protection claims—at the pleadings stage and

in their entirety—because they come within the Civil Service Commission’s exclusive

jurisdiction under Article X.88 Unfortunately, the alleged factual basis for Merida’s

Louisiana-law equal-protection claims is unclear; Merida does not allege with any

detail how he believes that any particular Defendant violated his rights under the

Louisiana Constitution’s Equal Protection Clause, specifically. It is clear, however,

that Merida seeks general “damages beyond the scope . . . of the Commission’s

jurisdiction,” Barringer, 216 So. 3d at 922, including damages for past, present, and

future loss of income; loss of reputation in the community; and mental anguish.89 And

Defendants, for their part, have not shown that Merida seeks relief on his Louisiana-

law equal-protection claims, specifically, that would “encroach upon the

constitutional power and authority granted to the Commission.” Holliday, 224 So. 3d

at 382 (citations omitted). For example, Defendants have not shown that Merida

88 Defendants do not ask the Court to stay this case or abstain pending the completion of

Merida’s pending Civil Service Commission proceedings. Nor do Defendants contend that Merida fails

to plead facts plausibly establishing any element of a Louisiana-law equal-protection claim.

89 ECF No. 23 at 3–4 ¶ 4 (amending ¶ 67 of the original petition).

seeks reinstatement, “an accounting for past due wages,” or a “declaration as to [his]

future wages” on his Louisiana-law equal-protection claim. Id.

Accordingly, because the Civil Service Commission “is powerless to award”

Merida the general tort damages he requests, Huval, 222 So. 3d at 572, and because

Defendants have not shown that Merida seeks any relief on his Louisiana-law equal-

protection claims, specifically, that would “encroach upon the exclusive power and

authority granted to the State Civil Service Commission,” Hawkins, 613 So. 2d at

234, the Court concludes that Article X of the Louisiana Constitution does not bar

Merida from bringing his Louisiana-law equal-protection claims. See Pike, 157 F.

Supp. 3d at 541; Jones, 2020 WL 564956, at *6; Edmonds, 2017 WL 2671690, at *4.90

B. Employment-Discrimination Claims Against Co-Employees

Next, Defendants contend that the Court should dismiss the employment-

discrimination claims Merida asserts against his former co-employees—Chandler,

Durnin, Brenckle, Juneau, and Pinkston—because neither Title VII nor the LEDL

creates a cause of action against an individual employee.91 The Court agrees.

Merida fails to state any plausible Title VII claims against Chandler, Durnin,

Brenckle, Juneau, and Pinkston. The allegations of Merida’s complaints confirm that

Chandler, Durnin, Brenckle, Juneau, and Pinkston are individual employees of the

Board.92 The Fifth Circuit “has held that there is no individual liability for employees

90 The cases Defendants cite to support their exclusive-jurisdiction argument do not compel a

contrary conclusion. See ECF No. 26-1 at 20. Those cases either pre-date, or do not address, the

Supreme Court of Louisiana’s 2017 opinion in Huval, which considered and ultimately rejected

exclusive-jurisdiction arguments resembling those Defendants make here. See 222 So. 3d at 667–72.

91 ECF No. 26-1 at 10–11.

92 See ECF No. 1-1 at 3–4 ¶¶ 1(B)–1(F)

under Title VII.” Smith v. Amedisys Inc., 298 F.3d 434,448 (5th Cir. 2002) (first citing

Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999); and then citing

Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir. 1994)). Accordingly, because

Chandler, Durnin, Brenckle, Juneau and Pinkston are individual employees who

cannot be held liable under Title VII, Merida fails to state any plausible Title VII

claims against them. So, the Court dismisses with prejudice all Title VII claims

Merida intends to assert against Chandler, Durnin, Brenckle, Juneau and Pinkston.

Merida fails to state any plausible LEDL claims against Chandler, Durnin,

Brenckle, Juneau, and Pinkston for essentially the same reason he fails to state any

plausible Title VII claims against them. Like Title VII, the LEDL does not create a

cause of action against an individual co-employee. See Notariano v. Tangipahoa Par.

Sch. Bd., 266 F. Supp. 3d 919, 928 (E.D. La. 2017) (“It is well established that

Louisiana’s antidiscrimination law provides no cause of action against individual

employees, only against employers.” (internal quotation marks and citation omitted)).

The text of the LEDL confirms that the statute creates employment-discrimination

liability only “for an employer.” LA. STAT. ANN. § 23:332(A). The LEDL in turn

defines “employer” in relevant part as “a person, association, legal or commercial

entity, the state, or any state agency, board, commission, or political subdivision of

the state receiving services from an employee and, in return, giving compensation of

any kind to an employee.” LA. STAT. ANN. § 23:302(2). And “[t]he provisions of [the

LEDL] shall apply only to an employer who employs twenty or more employees within

this state for each working day in each of twenty or more calendar weeks in the

current or preceding calendar year.” LA. STAT. ANN. § 23:302(2). The allegations of

Merida’s complaints confirm that Chandler, Durnin, Brenckle, Juneau, and Pinkston

are individual employees who do not meet the LEDL’s definition of “employer.”93

Thus, because Chandler, Durnin, Brenckle, Juneau, and Pinkston are individual

employees who cannot be held liable under the LEDL, Merida fails to state any LEDL

claims against them. The Court dismisses with prejudice all LEDL claims Merida

intends to assert against Chandler, Durnin, Brenckle, Juneau and Pinkston.

C. Tort Claims

Next, Defendants contend that Merida’s negligence, intentional-tort, and

defamation claims are time-barred.94 Defendants reason that Merida’s tort claims are

barred by the one-year prescriptive period under the former Louisiana Civil Code

Article 3492 because Merida filed this lawsuit in April 2023, and every event

described in his complaints occurred on or before his firing on March 9, 2022.95 Merida

invokes the continuing-tort doctrine in response, but he does not explain how he

believes that doctrine applies to save any of his specific tort claims.96 “Rule 12(b)(6)

dismissal under a statute of limitation is proper only when the complaint makes plain

that the claim is time-barred and raises no basis for tolling.” Johnson v. Harris Cnty.,

83 F.4th 941, 945 (5th Cir. 2023) (internal citations and quotation marks omitted).

Merida’s tort claims are untimely, and his complaints raise no basis for tolling.

The prescriptive period is one year. See LA. CIV. CODE ANN. art. 3492, repealed by

93 See ECF No. 1-1 at 3–4 ¶¶ 1(B)–(F).

94 ECF No. 26-1 at 13.

95 Id.

96 ECF No. 28 at 20.

TORT ACTIONS, 2024 La. Sess. Law Serv. Act 423 (H.B. 315).97 That one-year period

“commences to run from the day injury or damage is sustained.” LA. CIV. CODE

ANN. art. 3492. “Damage is . . . sustained . . . only when it has manifested itself with

sufficient certainty to support accrual of a cause of action.” Cole v. Celotex Corp., 620

So. 2d 1154, 1156 (La. 1993). Merida’s complaints confirm that, at the latest, he

“sustained” the “injury or damage” that commenced the one-year prescriptive period

on March 9, 2022—the day that he was fired and that Brenckle sent the allegedly

libelous email. The allegations of Merida’s complaints do not allow a reasonable

inference that Merida “sustained” any “injury or damage” after March 2022.

Accordingly, because Merida’s complaints make plain that Merida

“sustained” the relevant “injury or damage” in March 2022, at the latest, Civil Code

Article 3492’s one-year prescriptive period began to run in March 2022. And because

Merida waited over one year—until April 2023—to sue, Merida’s tort claims are time

barred by Civil Code Article 3492 unless his complaints raise a basis for tolling.

Merida’s complaints do not raise a basis for tolling the one-year prescriptive

period on his tort claims. Although Merida invokes the continuing-tort doctrine, it

does not apply. “[T]he theory of continuing tort has its roots in property damage cases

and requires that the operating cause of the injury be a continuous one which results

in continuous damages.” Eagle Pipe & Supply, Inc., v. Amerada Hess Corp., 2010-

97 Article 3492 was repealed and replaced by Article 3493.1 effective July 1, 2024. Article

3493.1 extends the prescriptive period for delictual claims from one year to two. See LA. CIV. CODE

ANN. art. 3493.1. But Article 3493.1 has “prospective application only,” and its two-year prescriptive

period “shall apply to delictual actions arising after the [July 1, 2024] effective date of [Act 423].” TORT

ACTIONS, 2024 La. Sess. Law Serv. Act 423 (H.B. 315). Because the alleged facts underlying Merida’s

claims occurred before July 1, 2024, the former Article 3492 and its one-year prescriptive period apply.

2267, p. 44 (La. 10/25/11); 79 So. 3d 246, 279 (internal quotation marks and citation

omitted). “[A] continuing tort is occasioned by continual unlawful acts[,] and for there

to be a continuing tort[,] there must be a continuing duty owed to the plaintiff and a

continuing breach of that duty by the defendant.” Id. (internal quotation marks and

citation omitted). “The inquiry as to whether there is continuous tortious conduct is

essentially a conduct-based one, asking whether the tortfeasor perpetuates the injury

through overt, persistent, and ongoing acts.” Id. (internal quotation marks and

citation omitted). “[C]ourts look to the alleged injury-producing conduct of the

tortfeasors to determine whether the conduct was perpetuated through overt,

persistent, and ongoing acts.” Id. (internal quotation marks and citation omitted).

“Where the wrongful conduct was completed, but the plaintiff continued to experience

injury in the absence of any further activity by the tortfeasor, no continuing tort [has

been] found.” Id. (internal quotation marks and citation omitted).

Here, the continuing-tort doctrine does not apply to save Merida’s tort claims

because Merida’s complaints do not contain any well-pleaded factual allegations

allowing the Court to reasonably infer that any Defendant “perpetuate[d]” any

alleged injury to Merida “through overt, persistent, and ongoing acts.” Id. (internal

quotation marks and citation omitted). On the contrary, Merida’s complaints confirm

that all of “the wrongful conduct was completed” no later than March 9, 2022—when

Merida was fired and when Brenckle sent the allegedly libelous email. Id. (internal

quotation marks and citation omitted). Indeed, Merida’s complaints do not allege “any

further activity by the tortfeasor[s]” after March 9, 2022 Id. (internal quotation marks

and citation omitted). Finally, to the extent Merida intends to argue that Defendants’

failure to retract Brenckle’s allegedly libelous email constitutes a continuing tort,

Merida would be wrong. Even if Brenckle’s email were defamatory, “Defendants’

failure to retract it or disseminate truthful information was not overt, persistent

conduct causing successive damages day to day,” and so “the continuing tort doctrine

is inapplicable.” Alexander v. La. State. Bd. of Priv. Investigator Exam’rs, 2015-0537,

p. 20 (La. App. 4 Cir. 2/17/17); 211 So. 3d 544, 559 (internal citations omitted).

In sum, Merida’s complaints confirm that any tort claims he intends to assert

are time-barred under the former Article 3492. And Merida’s complaints raise no

basis for tolling. The Court therefore grants Defendants’ Rule 12(c) motion to dismiss

with prejudice all tort claims Merida intends to assert as time-barred.98

D. Conspiracy Claims

Next, Defendants contend that Merida fails to state any Section 1983

conspiracy claims against them because Merida’s allegations are conclusory, and

because any conspiracy claims are barred by the intra-corporate conspiracy

doctrine.99 Merida does not address Defendants’ arguments. So, Merida has

abandoned any Section 1983 conspiracy claims he intends to assert by failing to make

any argument opposing dismissal of them in his Rule 12(c) response. See, e.g., Black

98 Because the Court dismisses all of Merida’s tort claims with prejudice as time-barred, the

Court does not reach Defendants’ alternative argument that Merida’s negligence claims should be

dismissed as barred by the exclusive-remedy provision of the Louisiana Workers’ Compensation Law,

LA. STAT. ANN. § 23:1032. See ECF No. 26-1 at 11–13.

99 ECF No. 26-1 at 13–14.

v. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (plaintiff “abandoned” a

claim by failing to defend against its dismissal in response to dispositive motions).

Abandonment aside, Merida fails to plead facts plausibly establishing a

Section 1983 conspiracy claim against any Defendant. To plead a plausible Section

1983 conspiracy claim, Merida “must allege facts that suggest [1] ‘an agreement

between the . . . defendants to commit an illegal act’ and [2] ‘an actual deprivation of

constitutional rights.’” Terwilliger v. Reyna, 4 F.4th 270, 285 (5th Cir. 2021) (quoting

Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994)). Merida fails to plead facts

plausibly establishing the first element. “Absent from the complaint[s] is any

sufficiently pled agreement to violate [Merida’s] constitutional rights.” Id. The sole

conspiracy allegation is that “Kelli Chandler conspired with defendants Durnin,

Juneau, and Pinkston and carried out a plan to create a hostile work environment for

plaintiff; target him for disparate treatment; and under color of law deprive him of

his property right as a civil service employee of [the Flood Protection Authority] and

employment in law enforcement in the future without just cause.”100 This “conclusory

allegation of agreement at some unidentified point does not supply facts adequate to

show illegality.” Twombly, 550 U.S. at 557. It is materially identical to the conspiracy

allegations the Supreme Court found wanting in Twombly. See id. at 551.

Finally, Merida’s Section 1983 conspiracy claims fail for a third independent

reason: They are barred by the intra-corporate-conspiracy doctrine. The “intra[-

]corporate-conspiracy doctrine . . . precludes plaintiffs from bringing conspiracy

100 ECF No. 23 at 1 ¶ 1 (amending ¶ 37 of the original petition).

claims against multiple defendants employed by the same governmental entity.”

Konan v. USPS, 96 F.4th 799, 805 (5th Cir. 2024) (internal quotation marks and

alterations omitted). “[A]n agency and its employees are a single legal entity which

is incapable of conspiring with itself.” Id. (internal quotation marks and citations

omitted). The allegations of Merida’s complaints confirm that Chandler, Durnin,

Juneau, and Pinkston are all employees of the Board.101 They are “incapable of”

conspiring among themselves. Id. (internal quotation marks and citations omitted).

For each of these independent reasons, the Court grants Defendants’ Rule 12(c)

motion and dismisses with prejudice all of Merida’s Section 1983 conspiracy claims.

E. Section 1983 Claims Against Durnin, Pinkston, and Juneau

Next, Defendants contend that Merida fails to state any Section 1983 hostile-

work-environment claims against Durnin, Pinkston, and Juneau.102 As for Durnin

and Pinkston, Defendants contend that their alleged use of an unquestionably

reprehensible racial epithet is not severe or pervasive enough to create an actionable

hostile work environment under binding precedent.103 And as for Juneau, Defendants

contend that Merida does not allege any harassing conduct.104 Merida counters that

“the trier of fact” should decide whether Durnin’s, Pinkston’s, and Juneau’s alleged

conduct was severe enough to create an actionable hostile work environment, and

101 Merida does not assert a conspiracy claim against Brenckle. See id.

102 ECF No. 26-1 at 15–18. Merida does not assert a Section 1983 claim against Brenckle, and

Defendants have not asked the Court to dismiss the Section 1983 claim against Chandler.

103 Id. at 15–17.

104 Id. at 18.

Merida submits that the reprehensible racial epithet that Durnin and Pinkston

allegedly used “was extremely serious given the totality of the circumstances.”105

Section 1983 permits Merida to “sue ‘[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage of any State’ violates his or her

constitutional rights.” Gomez v. Galman, 18 F.4th 769, 775 (5th Cir. 2021) (quoting

42 U.S.C. § 1983). To state a Section 1983 claim, Merida must plausibly allege (1)

“the violation of a right secured by the Constitution and laws of the United States”

(2) “committed by a person acting under color of state law.” Id. (internal quotation

marks and citation omitted). There is no vicarious liability under Section 1983, so

Merida must plausibly allege “that each . . . [D]efendant, through the [Defendant’s]

own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. For

purposes of Defendants’ Rule 12(c) motion, it is undisputed that Merida plausibly

alleges that Durnin, Pinkston, and Juneau acted under color of state law. So, the

dispositive question is whether Merida plausibly alleges that Durnin, Pinkston, and

Juneau—through their own individual actions—violated the Constitution.

Merida posits that Durnin, Pinkston, and Juneau violated his rights under the

Fourteenth Amendment’s Equal Protection Clause on a hostile-work-environment

theory. The Equal Protection Clause protects Merida “against a racially hostile work

environment.” Johnson v. Halstead, 916 F.3d 410, 417 (5th Cir. 2019). “A hostile work

environment exists when the workplace is ‘permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the

105 ECF No. 28 at 16.

conditions of [Merida’s] employment.’” Id. (quoting Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993)).106 “For harassment to alter the conditions of [Merida’s]

employment, ‘the conduct complained of must be both objectively and subjectively

offensive.’” Price v. Valvoline, L.L.C., 88 F.4th 1062, 1066 (5th Cir. 2023) (quoting

EEOC v. WC&M Enters., 496 F.3d 393, 399 (5th Cir. 2007)). So, to qualify as “hostile,”

Merida’s alleged environment must be “one that a reasonable person would find

hostile or abusive, and one that [Merida] in fact did perceive to be so.” Faragher v.

City of Boca Raton, 524 U.S. 775, 787 (1998) (citing Harris, 510 U.S. at 21–22).

The “standards for judging hostility are sufficiently demanding to ensure that

Title VII does not become a ‘general civility code.’” Id. at 788 (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). And so, “simple teasing,

offhand comments, and isolated incidents (unless extremely serious) will not amount

to discriminatory changes in the terms and conditions of employment.” Id.

To decide if Durnin’s, Pinkston’s, and Juneau’s alleged conduct was sufficiently

objectively offensive to alter the conditions of Merida’s employment under Fifth

Circuit precedent, the Court considers “[t]he totality of [Merida’s] employment

circumstances.” Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 433 (5th Cir.

2022) (citing Harris, 510 U.S. at 23). “[N]o single factor is determinative” of that

analysis. Id. But “pertinent considerations are: (1) ‘the frequency of the

discriminatory conduct’; (2) ‘its severity’; (3) ‘whether it is physically threatening or

106 The hostile-work-environment analysis is the same under Section 1983 and Title VII. See

Lauderdale v. Tex. Dep’t of Crim. Just., 512 F.3d 157, 166 (5th Cir. 2007).

humiliating, or a mere offensive utterance’; and (4) ‘whether it unreasonably

interferes with [Merida’s] work performance.’” Id. (quoting Harris, 510 U.S. at 23).

“Under the totality of the circumstances test, a single incident of harassment,

if sufficiently severe,” can establish a hostile work environment. EEOC v. WC&M

Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007). For example, the Fifth Circuit has

held that a single incident of a supervisor directly calling an employee a “Lazy

Monkey A__ N_____” in front of fellow employees was sufficiently severe to support a

hostile-work-environment claim. See Woods v. Cantrell, 29 F.4th 284, 285 (5th Cir.

2022); see also Thomas v. Cook Children’s Health Care Sys., No. 22-10535, 2023 WL

5972048, at *3 (5th Cir. Sept. 14, 2023) (per curiam) (“[T]he single use of ‘an

unambiguously racial epithet’ by a supervisor in the presence of subordinates can

support a hostile-work-environment claim.” (quoting Woods, 29 F.4th at 287)).

Durnin. Applying binding Fifth Circuit precedent, the Court is compelled to

conclude that Merida fails to plead a plausible Section 1983 hostile-work-

environment claim against Durnin based on Durnin’s alleged use of the

unquestionably reprehensible racial slur “spic.” That is for two independent reasons.

First, Merida fails to plead facts plausibly establishing that Merida “in fact

. . . perceive[d]” Durnin’s one-time use of the slur “spic” to be “hostile or abusive,” as

precedent requires. Faragher, 524 U.S. at 787 (citing Harris, 510 U.S. at 21–22).

Second, under the totality of the circumstances, Merida fails to plead facts

plausibly establishing the objective component of his hostile-work-environment claim

against Durnin. Merida’s complaints include an alleged instance of discriminatory

harassment by Durnin: Merida alleges that Durnin “gave” Merida and Conaghan “the

middle finger” and “muttered” “Fucking Spic” to Merida as Durnin “passed” Merida

and Conaghan during a “business meeting” of the Board.107 To be sure, the term “spic”

is “an unambiguously racial epithet.” Woods, 29 F.4th at 287. And Durnin’s alleged

use of the term undoubtedly qualifies as “severe” because it “evinces a clear animus

against a particular national origin,” Alamo v. Bliss, 864 F.3d 541, 550 (7th Cir. 2017);

see also, e.g., Ortiz v. Sch. Bd. of Broward Cnty., 780 F. App’x 780, 785 (11th Cir.

2019) (per curiam) (“Unambiguously ethnic slurs like ‘spic’ . . . surely fall on the more

serve end of the spectrum of comments.”); Cerros v. Steel Techs., Inc., 398 F.3d 944,

950–51 (7th Cir. 2005) (stating that it was “difficult to imagine epithets more offense

to someone of Hispanic descent” than “spic”). The Court condemns the term’s alleged

use in the strongest terms. Still, binding precedent requires the Court to consider the

totality of the circumstances, including, among other things, whether Merida has

pleaded facts plausibly establishing that Durnin’s specific alleged use of the term was

“physically threatening or humiliating” and whether Durnin’s specific alleged use of

the slur “unreasonably interfere[d] with [Merida’s] work performance.” Harris, 510

U.S. at 213. Merida failed to do so. That is, Merida does not allege that Durnin’s one-

time use of the slur “spic” was “physically threatening or humiliating.” Id. Nor does

Merida allege that Durnin’s use of the slur “unreasonably interfere[d] with [Merida’s]

work performance.’” Id. And critically, Merida does not allege (or even contend) that

Durnin was Merida’s supervisor—distinguishing this case from Woods, which

107 ECF No. 1-1 at 9 ¶ 33 (italics omited).

involved a one-time use of an unambiguously racial epithet by a supervisor. See 29

F.4th at 285; see also, e.g., Arguello v. Conoco, Inc., 207 F.3d 803, 810 (5th Cir. 2000)

(distinguishing conduct by supervisors from conduct by coworkers). In any event,

Merida does not invoke Woods or contend that Durnin’s use of the slur states an

actionable hostile-work-environment claim under it. Accordingly, considering the

totality of the circumstances, binding precedent compels the Court to conclude that

Merida fails to plead facts plausibly establishing the objective component of his

Section 1983 hostile-work-environment claim against Durnin.

In sum, for each of the independent reasons outlined above, precedent requires

the Court to conclude that Merida fails to plead a plausible Section 1983 hostile-work-

environment claim against Durnin. The Court dismisses the claim with prejudice.

Pinkston. Merida pleads a plausible Section 1983 hostile-work-environment

claim against Pinkston based on Pinkston’s allegedly calling Merida “spic” on one

specific occasion and on unspecified “past numerous occasions.”108

As relevant here, Merida alleges that, during a Board meeting, Pinkston

“turned to [Merida] and asked [Merida] in the presence [of] Chandler, Patrick

Conaghan and others attending the meeting[,] [h]ow is my favorite Mexican-Spic-

Jew-Investigator[?]”109 Pinkston allegedly made that unquestionably reprehensible

remark “before a gathering of [Merida’s] peers and supervisors with [Merida] as a

speaker.”110 Merida alleges that Pinkston’s remark “was demeaning, causing him

108 ECF No. 1-1 at ¶ 28.

109 ECF No. 1-1 at ¶ 26.

110 Id. at ¶ 27.

embarrassment, humiliation, and extreme mental anguish.”111 Merida also alleges

that Pinkston “referred to” him as a “Jewish–Spic” on unspecified “other past

numerous occasions alone and in the presence of third parties.”112

Unlike Merida’s hostile-work-environment allegations against Durnin, the

hostile-work-environment allegations against Pinkston are adequately pled. While

Merida did not allege that Durnin’s use of the slur “spic” was sufficiently offensive to

Merida to alter the conditions of Merida’s employment under binding precedent, or

that Durnin’s alleged use of the slur caused Merida to suffer humiliation, Merida

specifically alleges that Pinkston’s use of the slur at the Board meeting during which

Merida was scheduled to speak “was demeaning, causing [Merida] embarrassment,

humiliation, and extreme mental anguish.”113

Under the totality of the circumstances, Merida pleads facts plausibly

establishing the objective component of his Section 1983 hostile-work-environment

claim against Pinkston. First, as for the severity of Pinkston’s alleged discriminatory

conduct, as noted above, “spic” is “an unambiguously racial epithet,” Woods, 29 F.4th

at 287, and Pinkston’s directly calling Pinkston a “spic” on one specific occasion and

“on other past numerous occasions”114 undoubtedly qualifies as “severe,” Alamo, 864

F.3d at 550. Second, as for the frequency of Pinkston’s alleged discriminatory conduct,

Merida alleges that Pinkston referred to him a “spic” during a Board meeting and “on

111 Id.

112 ECF No. 28 at ¶ 28 (italics omitted).

113 Id. at ¶ 27.

114 ECF No. 1-1 at ¶ 28.

other past numerous occasions alone and in the presence of third parties.”115 Third,

as for whether Pinkston’s alleged discriminatory conduct was “physically threatening

or humiliating, or a mere offensive utterance,” Harris, 510 U.S. at 23, Merida

specifically alleges that Pinkston’s particular use of the unquestionably reprehensible

term—during an October 2021 Board meeting, “before a gathering of [Merida’s] peers

and supervisors[,] with [Merida] as a speaker”—“was demeaning, causing [Merida]

embarrassment, humiliation, and extreme mental anguish.”116 Accordingly, on

balance, Merida’s factual allegations plausibly establish that Pinkston’s alleged

discriminatory conduct was sufficiently severe or pervasive to alter the conditions of

Merida’s employment.117 The Court therefore denies Defendants’ motion to dismiss

Merida’s Section 1983 hostile-work-environment claim against Pinkston.

Juneau. Merida fails to state a Section 1983 hostile-work-environment claim

against Juneau. That is because Merida does not allege any discriminatory conduct

by Juneau.118 Because Merida does not allege facts plausibly establishing that

Juneau, “through [his] own individual actions, has violated” the Equal Protection

Clause by subjecting Merida to a hostile work environment, Iqbal, 556 U.S. at 676,

Merida necessarily fails to plead a plausible Section 1983 hostile-work-environment

claim against Juneau. The Court therefore grants Defendants’ motion to dismiss

Merida’s Section 1983 hostile-work-environment claim against Juneau.

115 Id.

116 Id. at ¶ 27 (emphasis added).

117 That Pinkston was not Merida’s supervisor is not dispositive of Merida’s hostile-work-

environment claim against Pinkston because Merida alleges that Pinkston directly called him a “spic”

on one specific occasion and on “other past numerous occasions,” ECF No. 1-1 at ¶ 28, not just once.

Cf. Woods, 29 F.4th at 285 (addressing a supervisor’s one-time use of an unambiguously racial epithet).

118 See generally ECF No. 1-1 at 3–18; ECF No. 23.

F. Official-Capacity Section 1983 Claims

Finally, Defendants contend that the Court should dismiss any official-

capacity Section 1983 claims that Merida intends to assert against Chandler,

Brenckle, Durnin, and Juneau because they are duplicative of Merida’s claims

against the Board.119 Merida does not address Defendants’ argument. So, Merida has

abandoned any official-capacity Section 1983 claims he intends to assert by failing to

make any argument opposing dismissal of them in his Rule 12(c) response. See Black,

461 F.3d at 588 n.1. The Court therefore grants Defendants’ motion to dismiss any

official-capacity Section 1983 claims that Merida intends to assert.

119 ECF No. 26-1 at 18–19.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Defendants’ renewed Rule 12(c) motion!2° for partial

judgment on the pleadings is GRANTED IN PART and DENIED IN PART

as outlined above. Excepting Merida’s Louisiana-law equal-protection claims and

Merida’s Section 1983 hostile-work-environment claim against Pinkston, all claims

targeted by the motion are dismissed. To be clear, the only claims left in this lawsuit

are (1) a Title VII claim against the Board, (2) a Section 1983 claim against the

Board; (3) a Section 1983 claim against Chandler; (4) a Section 1983 claim against

Pinkston; (5) a Louisiana-law equal-protection claim against the Board; (6) a

Louisiana-law equal-protection claim against Chandler; (7) a Louisiana-law equal-

protection claim against Durnin; and (8) a Louisiana-law equal protection claim

against Pinkston.

New Orleans, Louisiana, this 20th day of September, 2024.

KR ke S ale

BRANDON 8. LONG

UNITED STATES DISTRICT JUDGE

120 KCF No. 26.

34