Dyer v. New Orleans City

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

VARRICK DYER * CIVIL ACTION NO. 24-1702

*

VERSUS * DIVISION: 1

*

CITY OF NEW ORLEANS AND * MAGISTRATE JUDGE

ROMAN NELSON, IN HIS OFFICIAL * JANIS VAN MEERVELD

CAPACITY AS SUPERINTENDENT OF *

NEW ORLEANS FIRE DEPARTMENT *

*********************************** *

ORDER AND REASONS

This is an employment discrimination lawsuit. Before the Court is the defendants’ Motion

to Dismiss. (Rec. Doc. 8). The Court finds plaintiff has stated a plausible claim race-based

disparate treatment as to two incidents. The other claims, however, must dismissed for failure to

state a claim. Accordingly and for the following reasons, the Motion to Dismiss is GRANTED in

part and DENIED in part.

Background

Plaintiff Varrick Dyer has been a firefighter for the City of New Orleans Fire Department

(“NOFD”) for over 20 years and has been serving as a captain for 20 years. He is a dark-skinned

African American man, and he alleges he began to suffer from color and racial discrimination,

targeting, harassment, and a hostile work environment in February 2020. He alleges that Captain

Armand Favalora, a white male, began harassing Dyer to participate in a boycott of overtime work

at the NOFD in early 2020. Dyer continued accepting overtime work, and he alleges that Favalora

and other firefighters harassed him “for his refusal to participate in the boycott.” He alleges two

specific incidents occurring in February 2020 involving Favolora swearing at Dyer and Favolora

cutting the power to a treadmill Dyer was running on, causing Dyer to fall and injure his knee.

Dyer alleges that he reported “the harassment and assault to Superintendent McConnel on February

22, 2020.”

Favalora left the NOFD a year later, but Dyer alleges that he continued to suffer from

harassment and a hostile work environment. He describes an incident on February 20, 2022, when

his engine was the fourth to respond to a fire and there was no active fire when they arrived. He

alleges that two white firefighters he was supervising left the truck, entered the building, and then

returned to the truck. When they returned, he explained it was inappropriate to leave the engine

without the captain’s instruction. As Dyer was leaving the scene, he received a call on the radio

that he needed to return to the command post. When he arrived there, Captain Martin drove by and

yelled “next time get off the pump.” When Dyer reported to Chief Lavaca he learned that Chief

Lavaca had not called him on the radio to return to the command post. Dyer realized that Captain

Martin had made a false call.

Dyer then contacted Martin to determine where they were going—he said they were headed

to 502 quarters. Martin called Deputy Chief Castle and claimed he was fearful of Dyer, who was

coming to meet him and discuss the false call, although Martin did not mention he made a false

call. Instead, he complained that Dyer did not get off the truck or get dressed when he arrived at

the fire earlier that day. Castle did not instruct Dyer not to report to 502 quarters. Instead, he called

the District Chief and stated he thought there was going to be a fight between Martin and Dyer.

Dyer alleges on “information and belief” that Castle and Martin conspired to set up Dyer in a

volatile situation in hopes he would turn violent and Dyer would be terminated.

When Dyer arrived at 502 quarters, he found a group of firefighters waiting for him. He

approached Martin and told him if he had something to say, to say it to his face. Dyer complains

that several firefighters conferred when drafting special reports about the incident, even some who

were not instructed to do so.

For his role in the February 20, 2022, incidents, Martin was eventually charged with

violating Rule 24, which prohibits firefighters from engaging in hazing, horseplay, or pranks that

interfere with another member’s work performance or job satisfaction and from creating an

intimidating, humiliating, or hostile work environment. He was issued the minimum discipline of

a letter of reprimand.

It was determined that Dyer’s actions violated Rule 25 for threats or acts of violence against

the public or other members related to the February 20, 2022, incidents. Violation of this rule

requires either suspension or termination of employment. When Dyer appeared before the

disciplinary review board in November 2022, Dyer alleges it was apparent NOFD did not have

any evidence that Dyer threatened or acted with violence towards Martin. Instead, the NOFD

determined it would charge him with a violation of Rule 21 for failure to be courteous and

respectful when dealing with other employees. He was issued a letter of reprimand. Dyer alleges

that Superintendent Nelson previously testified that he was not permitted to change a rule violation

if during the investigation it appears another rule violation would be a more appropriate charge.

Yet Nelson did so in Dyer’s case. Dyer appealed the letter of reprimand.

Meanwhile, Dyer alleges that he took leave in April 2022 because of the harassment he

was receiving and he was prescribed medication to deal with the stress from work.

Dyer alleges that in May 2022 he applied to become a member of the union, but the union

voted to exclude him from membership. He alleges he is the only firefighter ever to be excluded.

Dyer alleges that he was also discriminated against when he applied for the Chief of Special

Operations position when Chief Bordes left the position. Although Dyer had more time serving as

captain and more time on a special operations unit than Danny Simon (a white male), Simon was

promoted to the position.

Dyer alleges that when his son Devontrell Jones joined the NOFD in September 2022 and

identified Dyer as his father, his supervisor Captain Neely told him to keep that information to

himself. Dyer alleges that Neely then spread false rumors that Dyer has a history of workplace

violence. He also alleges that Neely told Jones they would give him hell because of his relation to

Dyer.

Dyer also alleges that he is the only captain that is required to have his overtime hours

entered by Chief Ashburn (a white male). He alleges that throughout the district, other captains

supervised by Ashburn are allowed to enter overtime for other captains.

Dyer further alleges that NOFD employee Milderson (white male) appeared at his civil

service appeal hearing as a union representative without “upon information and belief” taking civil

leave time for conducting union activities as required. Dyer reported this alleged payroll fraud but

claims that NOFD failed to take any action or investigate the violation.

Dyer alleges that in November 2022, white firefighter Williams brought an assault rifle to

the engine house in violation of NOFD policy and displayed it by his bed. Dyer reported the

incident but alleges that NOFD failed to take any action or discipline.

On April 6, 2023, Dyer filed a charge of discrimination with the United States Equal

Employment Opportunity Commission for discrimination based on race, harassment, and hostile

work environment. Forty-two days later on May 18, 2023, NOFD charged Dyer with violation of

Rule 35, claiming that he lent, sold, or gave away NOFD property, namely a valve. Dyer alleges

that during the investigation of this violation, he was treated differently than similarly situated

employees outside of his protected class. As the sole example, he submits that he was told that

only Chief Casey could administer disciplinary hearings but Jonathan Piccone (white male) was

subject to a disciplinary hearing around the same time that was administered by Chief Castle (white

male). Dyer does not assert that a hearing by Castle would be preferable, let alone explain why

that could be the case.

NOFD issued a 36-hour suspension to Dyer for the Rule 35 charge on June 23, 2023. Dyer

filed a civil service appeal. At the hearing, Dyer alleges that two witnesses testified that the alleged

missing NOFD property, the valve, remained in an NOFD vehicle and never left NOFD’s

possession. He alleges that Nelson testified that the alleged missing valve never left NOFD’s

custody and that there was no evidence that Dyer gave away, loaned, or otherwise sold the valve.

Dyer amended his EEOC charge to include the Rule 35 discipline charge. On December 14, 2023,

the Civil Service Commission reversed the suspension.

Finally, Dyer alleges that Favalora has been promoted and is now in a supervisory position

over Dyer. He has requested confirmation that he will not be assigned under Favalora’s supervision

but has not received a response.

Dyer filed suit in this Court on July 7, 2024, alleging claims for retaliation under Title VII,

hostile work environment based on race and color under Title VII, disparate treatment based on

race under Title VII, the foregoing claims under and the Louisiana Employment Discrimination

Law (“LEDL”), conspiracy to violate human rights under La. Rev. Stat. § 51:2256, conspiracy to

interfere with civil rights under 42 U.S.C. § 1985(3), racial discrimination under 42 U.S.C. § 1981,

and deprivation of a vested property right under 42 U.S.C. § 1983. The parties consented to proceed

before the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). Trial has not yet been set.

Law and Analysis

1. Standard on Motion to Dismiss

“[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement

to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and

money by the parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007) (quotation marks and ellipsis omitted). Accordingly, Rule 12(b)(6) allows a defendant to

move for expeditious dismissal when a plaintiff fails to state a claim upon which relief can be

granted. In ruling on a 12(b)(6) motion, “[t]he court accepts all well-pleaded facts as true, viewing

them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litigation, 495 F.3d

191, 205 (5th Cir. 2007) (internal quotation marks omitted). Further, “[t]o survive a Rule

12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is

plausible on its face. Factual allegations must be enough to raise a right to relief above the

speculative level.” Id. (citation, footnote, and quotation marks omitted). On that point, the United

States Supreme Court has explained:

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. The plausibility standard is not akin to a “probability

requirement,” but it asks for more than a sheer possibility that a defendant has acted

unlawfully. Where a complaint pleads facts that are merely consistent with a

defendant's liability, it stops short of the line between possibility and plausibility of

entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted).

“In considering a motion to dismiss for failure to state a claim, a district court must limit

itself to the contents of the pleadings, including attachments thereto.”

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The Fifth Circuit has

recognized that the court may also consider documents attached to a motion to dismiss by the

defendant if they are referred to in the plaintiff’s complaint and central to her claim. Id. at 498-

99; see Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016).

2. Retaliation

Under Title VII,1 it is an “unlawful employment practice for an employer to discriminate

against any of his employees . . . because he has opposed any practice made an unlawful

employment practice by this subchapter . . . .” 42 U.S.C. § 2000e-3(a). Plaintiff establishes a prima

facie case of retaliation by showing “1) she engaged in protected activity, 2) she suffered an adverse

employment action, and 3) a causal link exists between the protected activity and the adverse

employment action.” Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021).

“Protected activity can consist of either: (1) ‘oppos[ing] any practice made an unlawful

employment practice by this subchapter’ or (2) ‘ma[king] a charge, testif[ying], assist [ing], or

participat[ing] in any manner in an investigation, proceeding, or hearing under this subchapter.’”

E.E.O.C. v. Rite Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016) (quoting 42 U.S.C. §2000e-

3(a)) (alteration in original). The Fifth Circuit has “consistently held that a vague complaint,

without any reference to an unlawful employment practice under Title VII, does not constitute

protected activity.” Davis v. Dallas Indep. Sch. Dist., 448 F. App'x 485, 493 (5th Cir. 2011). For

example, the Fifth Circuit found that plaintiff had not engaged in a protected activity when she

mentioned to the office manager that her supervisor had asked her to go out for a drink on two

occasions but there was no evidence “she protested or objected that these invitations were sexual

1 Because “Louisiana’s anti-discrimination statute, La. Rev. Stat. Ann. § 23:301 et seq., is ‘substantively similar’ to

Title VII, and Louisiana courts routinely look to the federal jurisprudence for guidance,” the court considers both

plaintiff’s Title VII and LEDL retaliation claim under the same standard. McCoy v. City of Shreveport, 492 F.3d 551,

556 n. 4 (5th Cir. 2007). Additionally, “the law regarding [a] § 1981 retaliation claim tracks the Title VII

jurisprudence.” Mendoza v. Helicopter, 548 F. App'x 127, 129 (5th Cir. 2013). Thus the court considers Dyer’s §1981

retaliation claim in this section as well.

harassment or otherwise unwelcomed.” Marquez v. Voicestream Wireless Corp., 115 F. App'x 699,

703 (5th Cir. Nov. 24, 2004). The court of appeals concluded there was no evidence that the

plaintiff had reported unlawful activity. Id.; see Nigro v. St. Tammany Par. Hosp., 377 F. Supp. 2d

595, 601 (E.D. La. 2005) (finding that plaintiff’s complaints that a physician’s comments offended

him and that he did not want to listen to the comments anymore did not qualify as protected activity

because the complaints did not concern sexual harassment).

An action is materially adverse for purposes of a retaliation claim if the action “might have

‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales,

438 F.3d 1211, 1219 (D.C. Cir. 2006)). A showing of “material” adversity is required to “separate

significant from trivial harms” because Title VII is not a general civility code and “[a]n employee's

decision to report discriminatory behavior cannot immunize that employee from those petty slights

or minor annoyances that often take place at work and that all employees experience.” Id.

Additionally, the “reasonable” requirement reflects an objective standard. Id. at 68-69.

At the prima facie stage, the plaintiff can establish causation “simply by showing close

enough timing between his protected activity and his adverse employment action.” Garcia v. Pro.

Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019). “However, ‘[t]he protected act and the adverse

employment action must be very close in time to establish causation by timing alone.’” Brown v.

Wal-Mart Stores E., L.P., 969 F.3d 571, 578 (5th Cir. 2020), as revised (Aug. 14, 2020) (quoting

Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 948 (5th Cir. 2015)). The

Fifth Circuit has recognized periods of six weeks to two-and-a-half months “are close enough to

establish a causal connection.” Id.

Defendants argue that the only protected activity alleged in the Complaint is when Dyer

filed his EEOC Charge on April 6, 2023. In opposition, Dyer argues merely that “numerous

incidents” alleged in his Complaint besides the EEOC charge qualify as protected activities. He

does not identify any of these purported incidents with specificity.

The Court finds no other protected activity alleged in the Complaint. Although Dyer alleges

that he reported the February 2020 “harassment and assault,” he alleges no facts that could support

finding that this report referenced any unlawful employment practice because neither the

allegations regarding the “harassment and assault” nor the report itself implicate Dyer’s race or

color. He alleges no other complaints or reports concerning treatment he experienced, let alone

race or color discrimination he experienced. The Court proceeds to consider whether Dyer has

alleged a plausible claim of retaliation following the filing of his EEOC Charge on April 6, 2023.

Dyer alleges that he experienced retaliation when he was charged on May 18, 2023, with

violation of Rule 35, claiming that he lent, sold, or gave away NOFD property. This charge resulted

in a 36-hour suspension issued on June 23, 2023. He appealed, and following the hearing, the Civil

Service Commission granted the appeal and reversed Dyer’s suspension. Dyer alleges the charge

was never supported by any evidence.

Defendants argue that this cannot amount to an adverse employment action because the

decision was ultimately reversed and Dyer received no negative impact. Defendants argue further

that the rule violation was not a baseless charge because the evidence before the Civil Service

Commission showed he would have violated the rule if he had taken one more step towards lending

out the NOFD property. To weigh this assertion, the Court must consider the Civil Service

Commission decision attached to defendants’ motion. Dyer invokes this decision in his Complaint,

apparently arguing that the result supports his position that the charge was baseless. It is referred

to in the Complaint and central to Dyer’s claim that the charge was baseless. Accordingly, the

Court finds it appropriate to consider the decision as incorporated into the Complaint.

Upon review of the Commission decision, the only reasonable conclusion is that the charge

was not baseless. The Commission found that Dyer tried to obtain permission to take a gate valve

(used to hook up a firehouse to a water hydrant) after receiving a call from an individual with his

church about the church’s difficulty hooking up to the water supply at a community event. He did

not obtain permission. Yet, the Commission found, on Friday May 12, 2023, he took the NOFD

gate valve from the spare fire truck where it was kept, put it in a NOFD Hazmat vehicle, and drove

the vehicle and valve to the church-sponsored community event. When he arrived, Dyer

determined that the church would not need the gate valve after all. The gate valve remained in the

Hazmat vehicle all weekend—even when it was turned over to Dyer’s relief fire captains—and

Dyer returned the gate valve to the spare truck located at City Hall on Monday. But this did not

occur until after the captain assigned to the detail at City Hall on that Monday was unable to hook

the fire truck up to the hydrant because the valve was missing. Superintendent Nelson testified the

public would have been at risk in the event of an emergency without the valve because the water

tender only holds 1,000 gallons of water. Although the Commission ultimately found, in a divided

opinion,2 that NOFD had not established that a “lending” had occurred in violation of Rule 35, it

is clear that the charge was not baseless.

The Court finds Dyer has failed to state a plausible claim for retaliation. Dyer was charged

with a Rule 35 violation within days of the alleged violation. The charged violation was not

baseless—in fact, after a hearing with presentation of testimony and exhibits, one of the three

Commissioners would have affirmed the penalty imposed. Although the violation was 42 days

2 The dissenting Commissioner found that Dyer fully intended to lend the valve if needed by the church and that he

took it without permission, making the discipline entirely appropriate.

after Dyer filed his EEOC charge, the Court finds that this timing alone is not enough to state a

plausible claim. A reasonable employee would not be dissuaded from filing an EEOC charge under

the facts alleged by Dyer. Dyer’s retaliation claim under Title VII, LEDL, and § 1981 must be

dismissed.

3. Hostile Work Environment

To establish a race-based hostile-work-environment claim, an employee must prove that

he:

(1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3)

the harassment complained of was based on race; (4) the harassment complained of

affected a term, condition, or privilege of employment; (5) the employer knew or

should have known of the harassment in question and failed to take prompt remedial

action.

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting Ramsey v.

Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).3 Harassment affects a “term, condition, or

privilege” of employment when it is so severe or pervasive that it alters the conditions of

employment and “create[s] an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 67 (1986) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).

In determining “whether a hostile work environment existed, a court must consider ‘the frequency

of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a

mere offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.’” Moore v. United Parcel Serv., Inc., 150 F. App'x 315, 319 (5th Cir. 2005) (quoting

Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). An isolated offensive utterance is not

sufficient to demonstrate a hostile work environment due to a protected characteristic. Weller v.

3 The same standard applies under Title VII, § 1981, and the LEDL. See Rodrigue v. PTS Mgmt. Grp., LLC, 550 F.

Supp. 3d 376, 393 (W.D. La. 2021); Williams v. E.I. du Pont de Nemours & Co., 154 F. Supp. 3d 407, 420 (M.D. La.

2015).

Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996) (quoting DeAngelis v. El Paso Mun.

Police Officers Ass’n, 51 F.3d 591, 595 (5th Cir. 1995)) (“[T]he ‘mere utterance of an . . . epithet

which engenders offensive feelings in an employee’ is insufficient, without more, to support Title

VII liability.”); see Long v. Eastfield Coll., 88 F.3d 300, 309 (5th Cir. 1996) (holding that an

offensive joke concerning condoms told in the plaintiff’s presence was insufficient to establish a

hostile work environment claim on the basis of sex); Martin v. Winn–Dixie Louisiana, Inc., 132 F.

Supp. 3d 794, 822–23 (M.D. La. 2015) (holding that plaintiff could not survive summary judgment

when her harassment claims were based on two stray remarks: being offered candy though she was

a diabetic and being told that she could not do her job and be pregnant); Jones v. Cont'l Cuisine,

Inc., 353 F. Supp. 2d 716, 720–21 (E.D. La. 2004) (finding the plaintiff had not established a race-

based hostile work environment where the only evidence to support a racially hostile work

environment was a manager’s alleged use of the “n word” during one meeting). A hostile work

environment must be found to “be both objectively and subjectively offensive.” Faragher v. City

of Boca Raton, 524 U.S. 775, 787 (1998).

Dyer alleges he experienced a hostile work environment based on his race and color.4 He

cites the alleged harassment by Martin, Castle, Ashburn, and other firefighters. He also cites the

alleged imposition of harsher penalties on him than on white employees. And he cites his

retaliation claim.

4 Notably, although Dyer alleges he is a dark-skinned African American man, Dyer does not make any allegations

related to his color. Color discrimination is not synonymous with race discrimination. See Donnelly v. Acad.

Partnerships, LLC, No. 3:20-CV-01106-X, 2021 WL 462052, at *3 (N.D. Tex. Feb. 9, 2021). “Color discrimination

arises when the particular hue of the plaintiff's skin is the cause of the discrimination, such as in the case where a dark-

colored African–American individual is discriminated against in favor of a light-colored African–American

individual.” Id. (quoting Taylor v. Texas S. Univ., No. 4:12-CV-01975, 2013 WL 5410073, at *8 (S.D. Tex. Sept.

25, 2013)). Because Dyer has failed to allege any facts implicating his color, he has failed to state any color

discrimination claims. In any event, and as discussed herein, the alleged hostile work environment claims fail entirely:

the alleged harassment does not rise to the level of severe and pervasive nor has Dyer shown any possible connection

between the harassment and his race or color.

Defendants argue that Dyer’s allegations of harassment fail to rise to the level of a Title

VII violation. They argue that Dyer has failed to show frequency or severity. They argue that

Dyer’s complaints that he was harassed by a union sympathizing employee in 2020, had an

altercation with an employee in 2022 that resulted in a letter of reprimand, was the subject of

rumors of his violence, and a disciplinary action was brought against him for taking a gate valve

without permission reflect merely a lack of civility in the workplace that is not actionable.

Moreover, defendants argue that Dyer has failed to sufficiently allege that he was discriminated

against due to his race. Instead, they point out, he alleges other reasons for the alleged harassment,

including union activities and a reputation for violence.

In opposition, Dyer argues that in addition to the issues cited by defendants, he also suffered

harassment when he was excluded from the union, when he was denied the ability to apply for a

Special Operations position, when he was the only captain required to enter his overtime into the

system, and when he was the only employee required to have Chief Casey preside over his

disciplinary review board hearing.

The Court finds that Dyer’s allegations do not state a plausible claim for a hostile work

environment. The instances of harassment alleged by Dyer are hardly severe or pervasive. Only

one offensive utterance is alleged—Favalora shouting “fuck you, vee” in February 2020 when

Dyer did not respond to Favalora’s demand that Dyer not discuss his overtime work. And not only

is this utterance isolated, it (and the context of the comment) do not plausibly implicate race or

color. Similarly, no allegations regarding the February 2020 incident where Favolara cut power to

Dyer’s treadmill suggest a race- or color-based motivation. To the contrary, Dyer alleges that

Favolora harassed him for his refusal to participate in the boycott of overtime work.

Captain Martin’s false call in February 2022 could also be characterized as harassment.

But once again, the allegations offer no basis to conclude his actions were race or color motivated.

Instead, Dyer alleges that Martin was motivated by Dyer’s failure to get off the truck when he

arrived at the fire. Martin shouted “next time get off the pump” and complained to Chief Lavaca

that Dyer had not gotten off the truck. And Dyer alleges only one specific instance of a rumor of

workplace violence that occurred in September 2022. Again, no fact alleged regarding Captain

Neely or the rumor indicates that this rumor was spread for a race- or color-based purpose.

Moreover, these incidents are hardly pervasive: two in February 2020, one in February 2022, and

one in September 2022.

Not only do the allegations of the Complaint fail to make any plausible connection between

these incidents of harassment5 and Dyer’s race or color, they do not rise to the level of frequent

and/or severe harassment required to state a claim. Dyer has failed to state a claim for race- or

color-based hostile work environment, and these claims will be dismissed.

4. Disparate Treatment

Title VII prohibits a covered employer from discriminating “against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). The same

standard applies to a race discrimination claim under § 1981 and the Louisiana Employment

Discrimination Law. DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007). To survive a motion to

dismiss, a plaintiff must plead sufficient facts on the ultimate elements of her claim: “(1) an

‘adverse employment action,’ (2) taken against a plaintiff ‘because of her protected status.’”

5 Several incidents referred to in Dyer’s opposition memorandum are more properly considered as possible disparate

treatment discrimination, and not harassment. Accordingly, they are considered below.

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

Louisiana State Univ., 714 F.3d 322, 331 (5th Cir. 2013)).

Dyer allege that he was treated differently when Captain Martin, a white male, was charged

with a lesser rule violation than Dyer, only issued a letter of reprimand, and never placed on

suspension for violating NOFD’s policies. He also alleges that he was treated differently when

NOFD created rules and policies that only applied to him. It appears that he is referencing his

allegation that he was the only person required to have his overtime entered by Captain Ashburn.

Although not alleged in the “disparate treatment” section of his complaint, the Court also considers

Dyer’s allegations that he was denied a promotion to Chief of Special Operations and a white male

with less time serving as captain and less time serving on a special operations unit received the

promotion. Additionally, Dyer alleges that Milderson lied that he was a union representative but

failed to take proper leave to attend Dyer’s civil service hearing, that Williams brought an assault

rifle to the engine house but was not disciplined, and that Piccone was not required to have Chief

Casey administer his disciplinary review hearing. 6

Defendants argue that Dyer fails to state a disparate treatment claim because he has not

raised a plausible inference that someone outside his protected group, under nearly identical

circumstances, was treated more favorably. They argue that in each instance where he compares

himself to his white co-workers, the circumstances are materially different.

The Court finds that Dyer has stated a plausible claim for race-based disparate treatment

as to two incidents.7 He alleges that he was charged with a more severe rule violation than Martin

6 Dyer also alleges that he was excluded from union membership in May 2022. However, he says merely that he was

the only firefighter to be excluded. No facts alleged could support finding that he was excluded due to his race or color

considering that other African American firefighters were not excluded. In any event, he does not invoke this incident

in opposition to defendant’s motion.

7 As to color-based discrimination, Dyer has alleged no facts that could plausibly support a claim that he was

discriminated against based on his color. See footnote 3, supra.

arising out of the February 2022 incident they were both involved in. Of course there may be

legitimate explanations for this difference in treatment. But at this stage, the Court finds Dyer has

plausibly alleged that this difference was race based because their conduct appears to have been

similar but the black firefighter was charged with a more severe rule violation than the white

firefighter. Additionally, Dyer has stated a plausible claim arising out of the denied promotion that

was allegedly given to a less qualified white male. The remaining incidents, however, are not

sufficiently similar to any incidents or situations involving Dyer and do not plausibly form the

basis of a disparate treatment claim. Specifically, firefighters who were not disciplined for

incidents involving taking proper leave time and displaying an assault rifle (with no suggestion of

a threat of violence) did not engage in conduct substantially similar to the incidents for which Dyer

was disciplined. Further, there is no apparent import to having a different person conduct the

disciplinary review hearing. These disparate treatment claims must be dismissed for failure to state

a claim. But Dyer’s race-based disparate treatment claim arising out of the February 2022

discipline and the denied promotion shall be allowed to proceed.

5. Conspiracy claim 42 U.S.C. § 1985

To state a conspiracy claim under §1985, plaintiff must allege :

(1) a conspiracy involving two or more persons; (2) for the purpose of depriving,

directly or indirectly, a person or class of persons of the equal protection of the

laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a

person or property, or a deprivation of any right or privilege of a citizen of the

United States.

Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994). “The essence of a conspiracy is an

understanding or agreement between the conspirators.” Zuniga v. Masse Contracting, Inc., 290 F.

Supp. 3d 581, 587 (E.D. La. 2017) (quoting Holdiness v. Stroud, 808 F.2d 417, 425 (5th Cir.

1987)). Thus, a complaint containing no allegations regarding any agreement between the alleged

conspirators fails to state a claim. See id. Further, “[t]he language requiring intent to deprive of

equal protection, or equal privileges and immunities, means that there must be some racial, or

perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.”

Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

Defendants did not seek to dismiss Dyer’s federal civil rights conspiracy claim in their

motion. Out of an abundance of caution, Dyer addressed this claim in opposition, arguing that he

has sufficiently alleged that the firefighters conspired to set him up for discipline because of his

race and that they acted in furtherance of the conspiracy when they filed false and misleading

reports and spread rumors about him. In reply, defendants argue that Dyer has failed to allege that

an agreement exists.

The Court finds that Dyer’s bare allegations that employees of the defendants “acted in

cohesion” is insufficient to plausibly establish a conspiracy.8 Dyer also alleges that “[s]everal

firefighters conferred when drafting special reports about the incident.” This alone is also

insufficient to give rise to the plausible existence of a conspiracy. Without a conspiracy, Dyer

cannot state a claim under §1985. This claim will be dismissed.

6. Conspiracy claim under La. Rev. Stat. 51:2256

Under La. Rev. Stat. § 51:2256:

It shall be an unlawful practice for an employer as defined in R.S. 23:302 to

conspire:

(1) To retaliate or discriminate in any manner against a person because he has

opposed a practice declared unlawful by this Chapter or by Chapter 3-A of Title 23

of the Louisiana Revised Statutes of 1950, or because he has made a charge, filed

a complaint, testified, assisted, or participated in any manner in any investigation,

proceeding, or hearing under this Chapter or by Chapter 3-A of Title 23 of the

Louisiana Revised Statutes of 1950.

8 Although defendants did not explicitly seek to dismiss this claim in their motion, they did argue therein that Dyer

had failed to allege a conspiracy. Importantly, the parties have both had an opportunity to be heard on this issue via

the opposition and reply memoranda.

(2) To aid, abet, incite, compel, or coerce a person to engage in any of the acts or

practices declared unlawful by this Chapter or by Chapter 3-A of Title 23 of the

Louisiana Revised Statutes of 1950.

(3) To obstruct or prevent a person from complying with the provisions of this

Chapter or by Chapter 3-A of Title 23 of the Louisiana Revised Statutes of 1950 or

any order issued thereunder.

(4) To resist, prevent, impede, or interfere with the commission, or any of its

members or representatives, in the lawful performance of duty under this Chapter

or by Chapter 3-A of Title 23 of the Louisiana Revised Statutes of 1950.

La. Stat. Ann. § 51:2256. As this court has previously concluded, this statute applies only to

conspiracies. Cook v. Par. of Jefferson, 621 F. Supp. 3d 666, 674 (E.D. La. 2022). The only

subsection that could be applicable here is subsection (1), making it unlawful to conspire to

retaliate or discriminate because a person has opposed a practice made unlawful by the Louisiana

Employment Discrimination Law (Chapter 3-A of Title 23) or the chapter within which the

provision is found: Title 51, Chapter 38, which establishes the Louisiana Commission on Human

Rights and provides for its makeup, powers, and compensation as well as making certain practices

unlawful that are not implicated here. In other words, to state a claim under this statute, Dyer must

plead a conspiracy to retaliate against him for engaging in a protected activity.

Defendants argue that Dyer fails to state a claim under this statute because he has failed to

allege any conspiracy. Dyer responds that he has done so by alleging that Favalora, Martin, Castle,

Ashburn, and Chief Bourdais “acted in cohesion to deprive him of his employment in retaliation

for reporting and objecting to discriminatory practices.” He submits that he has alleged that they

conspired to set him up for discipline, spread rumors of violence about him, and provided NOFD

with special reports that perpetuated the false rumors, all as a means to make Dyer suffer discipline

at work.

As discussed in the section above, Dyer has failed to allege any agreement to commit an

unlawful act. Moreover, this Court has already found that the only protected activity alleged is

Dyer’s filing of an EEOC charge in April 2023. The purported conspiracy alleged by Dyer

occurred prior to that time and without any relationship to Dyer’s filing of an EEOC charge.

Accordingly, Dyer has failed to state a plausible claim for relief under La. Rev. Stat. § 51:2256.

This claim will be dismissed.

7. Due process claim under 42 U.S.C. § 1983

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Here, Dyer alleges that he was deprived of a vested property right in his position as a civil servant

without due process in violation of the United States and Louisiana constitutions. To establish a

procedural due process claim, plaintiff must “show that (1) she was deprived of a liberty or

property interest protected by the due process clause, and (2) that she was deprived of that interest

without constitutionally adequate process.” LaCroix v. Marshall Cty., Mississippi, 409 F. App'x

794, 803 (5th Cir. 2011). There is no dispute that Dyer has a property interest in his employment

with NOFD. See Wallace v. Shreve Mem'l Libr., 79 F.3d 427, 431 (5th Cir. 1996); Hudson v. Dep't

of Pub. Safety & Corr., Louisiana State Penitentiary, 96-0499 (La. App. 1 Cir. 11/8/96), 682 So.

2d 1314, 1318.

“Procedural due process rules are meant to protect persons not from the deprivation, but

from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S.

247, 259 (1978). In the case of a public employee, due process requires that the employee be

provided “some kind of a hearing” prior to termination. Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 542, (1985). “A satisfactory pretermination ‘hearing’ need not be elaborate, for such a

hearing is merely designed to prevent the employer from making a mistake.” Browning v. City of

Odessa, Tex., 990 F.2d 842, 844 (5th Cir. 1993). At a minimum, the employee is entitled to “oral

or written notice of the charges against him, an explanation of the employer's evidence, and an

opportunity to present his side of the story.” Loudermill, 470 U.S. at 546; see Myrick v. City of

Dallas, 810 F.2d 1382, 1386 (5th Cir. 1987) (finding sufficient opportunity to be heard where

plaintiff provided a written account of what she believed had happened).

Even where pre-termination proceedings are constitutionally deficient, Courts will find no

due process violation where the post-termination proceedings offer sufficient due process

protections. Glenn v. Newman, 614 F.2d 467, 472 (5th Cir. 1980). For example, in Glenn, the Fifth

Circuit found that the post-termination proceedings cured the defective pre-termination

proceedings where plaintiff was provided sufficient notice of the basis of the charge so that plaintiff

could fully understand it and where he had the opportunity to be heard at a post-termination hearing

where he was represented by counsel who had the opportunity to cross examine witnesses. Id. The

court of appeals held that the only damages to which the plaintiff was entitled accrued during the

period between his dismissal and the date of his post-termination hearing. Id.

Dyer alleges he was not afforded due process with regard to the allegations made against

him in the letter of reprimand for the February 20, 2022, incident. He alleges that the letter of

reprimand was arbitrary and capricious. He alleges that NOFD failed to follow its policies relating

to the rule violation charged and changed the rule violation after the evidence did not support the

initial charge.

Defendants attach the cited letter of reprimand to their motion to dismiss and argue that it

establishes that the letter was not arbitrary and capricious because it cites a violation of Rule 21

and sets forth the rule in its entirety. They point out that the letter describes the reason for the

discipline. They argue that the letter fully apprised Dyer of the charges against him. They point out

that he was given the opportunity to appeal his letter of reprimand and a full hearing was held

where he was represented by counsel. They insist that there was no due process violation.

Dyer argues that he was not provided adequate notice in advance of receiving the letter of

reprimand for violating Rule 21. He submits that he was initially charged with violating Rule 25

(for threats of violence), and he was provided a pre-disciplinary hearing for the Rule 25 violation.

He alleges that there was no evidence to support a violation of Rule 25 and, in violation of policy

and without notice of a Rule 21 violation or opportunity to be heard, he was reprimanded for a

Rule 21 violation (for failure to be courteous and respectful). He insists that this amounts to a due

process violation. He does not address the impact of the post-letter proceedings.

The Court finds that Dyer has failed to state a plausible claim for a due process violation.

First, the Court is not convinced that charging Dyer with a lesser rule violation under Rule 21 in

lieu of a Rule 25 violation can fairly be characterized as charging him without notice and an

opportunity to be heard when he was allowed to be heard on the conduct at issue. Nonetheless,

even if the letter of reprimand was issued without due process because he had not previously been

notified of a Rule 21 violation, the Court finds that the post-reprimand appeal process remedies

that defect. Specifically, the defendants attach to their motion the Civil Service Commission

decision, which asserts that a hearing on the letter of reprimand was held over two days and both

parties were offered the opportunity to call witnesses and present evidence. Defendants also attach

the letter of reprimand itself, which clearly outlines the conduct at issue and the charged rule

violation. Because the letter of reprimand is referenced in the complaint and central to Dyer’s due

process claim, the Court considers it.

Although the Civil Service Commission decision is not incorporated into the pleadings, the

Court finds it appropriate to convert the motion to dismiss to a motion for summary judgment as

to the due process claim. Dyer alleges that he appealed the letter of reprimand and that a hearing

was held. He does not allege in his complaint, nor does he claim in opposition, that he was not

provided with the opportunity to call witnesses and present evidence at that hearing. He does not

dispute that he was represented by counsel. There is no reason to conduct further discovery into

the issue of the process provided to Dyer after the letter of reprimand and through the decision of

the Civil Service Commission because there is no suggestion that any discoverable information

exists that could negate the Court’s conclusion that Dyer was provided an adequate opportunity to

be heard prior to the Civil Service Commission affirming the letter of reprimand.9 Accordingly,

Dyer’s due process claim will be dismissed. Dyer has not raised the alternative claim that he

suffered a due process violation stemming from the period between the letter of reprimand and the

Civil Service Commission’s hearing, and the Court does not now consider it.

Conclusion

The Court finds that Dyer has stated a claim under Title VII, the LEDL, and § 1981 for

race-based disparate treatment arising out of the charge related to the February 2022 incident and

arising out of the denied promotion. As to these claims, the Motion to Dismiss is DENIED. The

Court finds that Dyer has failed to state a plausible claim under LEDL, Title VII, or § 1981 for any

other race-based disparate treatment, for any color-based disparate treatment, for race- or color-

9 The Court notes that the parties have offered no case law to support finding that a letter of reprimand with no further

penalty or negative impact amounts to the deprivation of a property right that could support a due process violation.

Nor has the Court found any. See Bessman v. Powell, 189 F.3d 469 (5th Cir. 1999)(per curium) (finding “no

consequence” of the letter of reprimand deprived the plaintiff “of a constitutional right to liberty or property”). Here,

plaintiff alleges only the deprivation of a property right. Although courts have considered derogatory letters in an

employment file could constitute an infringement on a protected liberty interest when the employer “perpetuates untrue

charges,” Dyer has alleged no facts that could support finding the defendants did so here. See Swilley v. Alexander,

629 F.2d 1018, 1021–22 (5th Cir. 1980). As the Fifth Circuit observed in Glenn, “the formality and procedural

requisites for the hearing can vary, depending on the importance of the interests involved and the nature of the

subsequent proceedings.” 614 F.2d at 472. The minimal nature of the penalty Dyer suffered lends further support to

the Court’s conclusion that there is no plausible basis to find that Dyer was not afforded due process before the letter

of reprimand became final.

based hostile work environment, or for retaliation; for conspiracy under La. Rev. Stat. § 51:2256

or § 1985; or for a due process violation under § 1983. As to these claims, the defendants’ Motion

is GRANTED and the aforementioned claims are DISMISSED.

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

Vow Moe. vol

Janis van Meerveld

United States Magistrate Judge

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