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

> District Court, E.D. Louisiana · September 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10648515

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10648515

## How later opinions describe it (automated extraction)

- stating that it was “difficult to imagine epithets more offense to someone of Hispanic descent” than “spic”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10648515. Public record. Not legal advice.