The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
NICHOLE DORSEY CASE NO. 6:25-CV-00952
VERSUS JUDGE DAVID C. JOSEPH
IBERIA COMPREHENSIVE MAGISTRATE JUDGE CAROL B.
COMMUNITY HEALTH CENTER INC WHITEHURST
ET AL
REPORT AND RECOMMENDATION
Before the Court is the Motion to Dismiss pursuant to F.R.C.P. Rule 12(b)(6)
filed by Defendants, Iberia Comprehensive Community Health Center, Inc.
(“ICCHC”), ICCHC Board (“the Board”), and De’Marquis Hamilton, CEO. (Rec.
Doc. 10). Plaintiff, Nichole Dorsey, opposed the Motion (Rec. Doc. 12), and
Defendants replied (Rec. Doc. 17). The motion was referred to the undersigned
magistrate judge for review, report, and recommendation in accordance with the
provisions of 28 U.S.C. §636 and the standing orders of this Court. Considering the
evidence, the law, and the parties’ arguments, and for the following reasons, the
Court recommends that Defendants’ Motion to Dismiss be granted in part and
dismissed in part.
Facts and Procedural History
Plaintiff filed this suit in July 2025 against her former employer, ICCHC, its
board, and its current CEO, Hamilton, alleging employment discrimination based on
her gender, retaliation, and defamation. (Rec. Doc. 1).
Ordinarily, in ruling on a Rule 12(b)(6) motion, the Court is limited to the
allegations of the complaint and any exhibits attached thereto; however, the court
may also consider documents attached to the defendant’s motion if they are
referenced in the complaint and central to the plaintiff’s claims. In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). The court is also permitted to
take judicial notice of public records as well as facts which are not subject to
reasonable dispute in that they are either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned. Funk v. Stryker
Corp., 631 F.3d 777, 783 (5th Cir. 2011). The Fifth Circuit has also sanctioned
consideration of certain documents which were attached to the plaintiff’s opposition,
where no party questioned the authenticity of the documents and the documents are
sufficiently referenced in the complaint. Walch v. Adjutant Gen.'s Dep't of Texas,
533 F.3d 289, 294 (5th Cir. 2008). Accordingly, the Court shall consider Plaintiff’s
allegations (Rec. Doc. 1), Plaintiff’s July 16, 2024 termination letter (Rec. Doc. 10-
5, attached to Defendants’ Motion and referenced in the complaint), and Plaintiff’s
EEOC right to sue letter (Rec. Doc. 12-1, attached to the Complaint and to Plaintiff’s
opposition) in order to determine whether Plaintiff has stated a claim. The foregoing
documents present the following facts.1
Although the factual allegations are poorly drafted, Plaintiff alleges she was
hired in December 2009 as a staff accountant and later promoted to Chief Financial
Officer. (Rec. Doc. 1, ¶7). In 2024, Hamilton was hired as the new CEO, and
Plaintiff was warned not to communicate with the former CEO, Mr. Campbell. (Id.)
She alleges that following an organizational restructuring, the executive team was
admonished to have no contact with former CEO Campbell and that the Board began
to interfere with her job as CFO. The Board allegedly changed a nominal fee despite
Plaintiff’s advice otherwise. (¶8). Plaintiff alleges that CEO Hamilton undermined
her authority, ignored her requests that he reimburse money owed to the company
for an unattended work trip, and later returned the funds to a staff accountant rather
than to her. (¶9). She alleges that CEO Hamilton “had trouble respecting women,”
did not consult with her, bypassing the chain of command, ignored her, and at times
failed to speak to her when passing, because she is a female. (¶10).
1 The Court did not consider documents at Rec. Doc. 10-4 or 10-6 as unauthenticated
documents which are not sufficiently referenced in the complaint. Neither did the Court
consider documents at Rec. Doc. 10-3 or 10-7, which, though public records, are irrelevant
and not sufficiently referenced in the complaint.
Plaintiff alleges that CEO Hamilton denied her request to use a company
vehicle to visit satellite sites, though she had previously been allowed to use the
vehicle and though CEO Hamilton received a monthly auto allowance and was
allowed to use the company vehicle. (¶12). CEO Hamilton allegedly applied for a
company credit card, with Board approval, and did not provide credit card statements
to Plaintiff to include in her report. (¶13).
Plaintiff alleges that she participated in and investigated an internal EEOC
claim involving CEO Hamilton before his appointment and that CEO Hamilton
thereafter retaliated against her and created a hostile work environment because of
this. (¶11). She alleges that on July 16, 2024, CEO Hamilton terminated her, without
rehire eligibility or severance pay, without an exit interview, and despite her having
been previously told she would not be fired. She had no prior bad evaluation,
warning or write-ups. (¶14). She alleges that, since her termination, CEO Hamilton
has said that she was fired for stealing money from ICCHC, which has damaged her
reputation. (¶15). Defendants contend that Plaintiff was an at-will employment who
was terminated as part of organizational restructuring which occurred with a new
CEO. (Rec. Doc. 10-5).
Plaintiff asserts gender discrimination, retaliation, and hostile work
environment claims and a state law defamation claim. Defendants move to dismiss
all of Plaintiff’s claims for failure to state claims upon which relief can be granted.
Law and Analysis
I. Rule 12(b)(6) Standard
The defendant may challenge the complaint for failing to state a claim by
filing a motion to dismiss under F.R.C.P. Rule 12(b)(6). When considering a motion
to dismiss for failure to state a claim, the district court must limit itself to the contents
of the pleadings, including any attachments and exhibits thereto. Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000); U.S. ex rel. Riley v. St. Luke's
Episcopal Hosp., 355 F.3d 370, 375 (5th Cir.2004). The court must accept all well-
pleaded facts as true and view them in the light most favorable to the plaintiff. In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.2007). Conclusory
allegations and unwarranted deductions of fact are not accepted as true. Kaiser
Aluminum & Chemical Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.
1982); Collins v. Morgan Stanley, 224 F.3d at 498. The law does “not require
heightened fact pleading of specifics, but only enough facts to state a claim to relief
that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
Ct. 1955, 1974 (2007). The allegations must be sufficient “to raise a right to relief
above the speculative level,” and “the pleading must contain something more
…than…a statement of facts that merely creates a suspicion [of] a legally cognizable
right of action.” Id. at 555 (quoting 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-36 (3d ed. 2004)).
II. Title VII Gender Discrimination
In employment discrimination cases, under the McDonnel Douglas
framework, if the plaintiff establishes a prima facie case of discrimination, the
burden of production shifts to the employer to provide a legitimate, non-
discriminatory reason for the action. Haire v. Bd. of Sup'rs of Louisiana State Univ.
Agric. & Mech. Coll., 719 F.3d 356, 362–63 (5th Cir. 2013). In order to clear the
initial hurdle, the plaintiff must show (1) that she is a member of a protected class;
(2) that she was qualified for the position sought; (3) she was subject to an adverse
employment action; and (4) she was replaced by someone outside her protected class
or was treated less favorably than other similarly situated employees outside her
class. Id. at 363.
The parties do not dispute that Plaintiff, as a female, is a member of a
protected class (see id) or that her termination constituted an adverse employment
action. Plaintiff did not specifically plead allegations regarding her qualifications,
but the Court must consider the allegations in Plaintiff’s favor and thus interprets the
allegations to show that she was qualified. She had served in an accounting
department capacity since 2009 and was the CFO at the time of her termination.
(Rec. Doc. 1, ¶7).
Otherwise, Plaintiff’s allegations fail to show that she was replaced by a man
or treated less favorably than similarly situated men. In fact, the complaint does not
allege any facts regarding any replacement for her position. She alleges that CEO
Hamilton did not consult with her before transitioning to his new role because she is
female, that he provided more respect to the men, and that he avoided and ignored
her and failed to speak to her when passing, insinuating that he did not treat men as
such. These alleged acts do not constitute actionable adverse employment actions.
“To adequately plead an adverse employment action, plaintiffs need not allege
discrimination with respect to an ‘ultimate employment decision.’ Instead, a plaintiff
need only show that she was discriminated against, because of a protected
characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions,
or privileges of employment.’” Hamilton v. Dallas Cnty., 79 F.4th 494, 506 (5th Cir.
2023). The allegations do not show that CEO Hamilton’s alleged conduct (other than
termination) affected a term, condition, or privilege of Plaintiff’s employment.
Plaintiff’s allegations also fail to show that similarly situated men in nearly
identical circumstances were treated more favorably:
Employees with different supervisors, who work for different
divisions of a company or who were the subject of adverse employment
actions too remote in time from that taken against the plaintiff generally
will not be deemed similarly situated. Likewise, employees who have
different work responsibilities or who are subjected to adverse
employment action for dissimilar violations are not similarly situated.
…The employment actions being compared will be deemed to have
been taken under nearly identical circumstances when the employees
being compared held the same job or responsibilities, shared the same
supervisor or had their employment status determined by the same
person, and have essentially comparable violation histories. And,
critically, the plaintiff's conduct that drew the adverse employment
decision must have been “nearly identical” to that of the proffered
comparator who allegedly drew dissimilar employment decisions.
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009) (citations
omitted).
The complaint lacks sufficient allegations to show that similarly situated men
were treated more favorably. Ultimately, the conduct which Plaintiff alleges and the
broad, conclusory statement that CEO Hamilton respected men more than women is
the sort of “petty slight, minor annoyance, and simple lack of good manners” which
are insufficient to show discrimination. Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006). Plaintiff failed to state a claim for
gender discrimination.
III. Hostile Work Environment
In order to establish a hostile working environment claim, [the
plaintiff] must prove: (1) she belongs to a protected group; (2) she was
subjected to unwelcome harassment; (3) the harassment complained of
was based on race [or gender]; (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. For harassment on the basis
of race to affect a term, condition, or privilege of employment, as
required to support a hostile work environment claim under Title VII,
it must be sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.
In determining whether a workplace constitutes a hostile work
environment, courts must consider the following circumstances: 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.
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (cleaned up; citations
omitted). See also Long v. Eastfield Coll., 88 F.3d 300, 309 (5th Cir. 1996), citing
same elements regarding gender-based claims.
The “mere utterance of an epithet which engenders offensive feelings in an
employee” and “simple teasing, offhand comments, and isolated incidents (unless
extremely serious)” are insufficient to constitute harassment. Shepherd v.
Comptroller of Pub. Accts. of State of Texas, 168 F.3d 871, 874 (5th Cir. 1999)
(cleaned up), quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367,
370 (1993) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283
(1998).
In support of her hostile work environment claim, Plaintiff alleges that the
Board interfered with her daily operations as CFO and changed a nominal fee from
$25 to $15 despite her advice. She alleges, “it was a lot of disrespect towards me
from the Board.” She further alleges that CEO Hamilton undermined her authority
and bypassed the chain of command to return certain funds, that he “had trouble
respecting wom[e]n,” provided more respect to men, avoided and ignored Plaintiff
and failed to speak to her when passing. (Rec. Doc. 1, ¶8-9). Such allegations do not
rise to the level of harassment contemplated by Title VII. Indeed, hostile work
environment claims typically entail aggressive behavior, such as statements and
conduct. Compare e.g. Shepard, supra (no hostile work environment where co-
worker made inappropriate statements and occasional unwanted touching). Here,
CEO Hamilton’s alleged behavior in ignoring Plaintiff was merely passive, with no
allegations of pervasive, ongoing egregious conduct. Plaintiff failed to state a hostile
work environment claim.
IV. Title VII Retaliation
To establish a prima facie case of retaliation, the plaintiff must establish that:
(1) he participated in an activity protected by Title VII; (2) his employer took an
adverse employment action against him; and (3) a causal connection exists between
the protected activity and the adverse employment action.
McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007), abrogated by
Hamilton v. Dallas Cnty., 79 F.4th 494 (5th Cir. 2023).2 “A ‘protected activity’
under Title VII is ‘opposition to any practice rendered unlawful by Title VII,
including making a charge, testifying, assisting, or participating in any investigation,
proceeding, or hearing under Title VII.’” Newell v. Acadiana Plan. Comm’n Inc.,
637 F. Supp. 3d 419, 432–33 (W.D. La. 2022). “Title VII thus covers two distinct
types of protected activity: (1) opposition to any practice rendered unlawful by Title
2 Hamilton held that “[t]o adequately plead an adverse employment action, plaintiffs need
not allege discrimination with respect to an ‘ultimate employment decision.’ Instead, a
plaintiff need only show that she was discriminated against, because of a protected
characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions, or
privileges of employment.’” Hamilton, 79 F.4th at 506.
VII (the ‘opposition clause’), and (2) making a charge, testifying, assisting, or
participating in any investigation, proceeding, or hearing under Title VII (the
‘participation clause’).” Id., citing Crawford v. Metro. Gov’t of Nashville &
Davidson Cty., Tenn., 555 U.S. 271, 274, 129 S.Ct. 846 (2009).
Plaintiff alleges that she participated in and investigated an internal EEOC
claim involving CEO Hamilton prior to his appointment and that CEO Hamilton
fired her in retaliation upon his appointment. (¶11; 14). Although Defendants agree
that participating in an EEOC investigation constitutes a protected activity,
Defendants argue that the complaint fails to allege sufficient details about the
protected activity and lacks allegations of a causal connection. The Court agrees that
Plaintiff’s allegations are sparse; however, they are just enough to clear Rule
12(b)(6)’s low hurdle. See Cuellar v. Sw. Gen. Emergency Physicians, P.L.L.C., 656
F. App'x 707, 710 (5th Cir. 2016) (holding that the plaintiff stated a retaliation claim
in alleging that she was fired after reporting a supervisor’s purported harassment and
noting that “a viable Title VII retaliation claim does not necessarily depend on a
viable harassment or discrimination claim.” (emphasis in original)).
V. State Law Defamation
Plaintiff asserts a state law claim for defamation based on CEO Hamilton’s
alleged statement to others that Plaintiff was terminated for stealing money from
ICCHC “or was actively never available to the CEO.” (Rec. Doc. 1, ¶15-17).
Defendants urge the Court to dismiss this state law claim for lack of supplemental
jurisdiction once federal law claims are dismissed. Because one federal law claim
survives, the Court declines to dismiss Plaintiff’s state law claim at this stage under
28 U.S.C. §1367(c)(4).
Defendants further move to dismiss Plaintiff’s defamation claim for lack of
sufficient factual allegations.
In order to prevail on a defamation per se claim, a plaintiff must
prove the following four elements: (1) a false and defamatory statement
concerning another; (2) an unprivileged publication to a third party; (3)
fault (negligence or greater) on the part of the publisher; and (4)
resulting injury. By contrast, defamation by innuendo occurs when one
publishes truthful statements of fact and those truthful facts carry a false
defamatory implication about another. In other words, defamatory
meaning can be insinuated from an otherwise true communication.
The publication element of both claims does not require that the
defamatory comment be published to the general public, but is satisfied
by communication to a person other than the one defamed. Under
Louisiana law, communication between officers and agents of the same
corporation, and in relation to their duties for the corporation cannot be
construed as communication to a third party for purposes of
establishing the publication element of a defamation action. Notably,
failure to prove any element invalidates a defamation claim.
Williams v. Genesis Energy, LLC, No. CV 20-35-JWD-EWD, 2021 WL 1227873,
at *10–11 (M.D. La. Mar. 31, 2021) (cleaned up; citations omitted).
The plaintiff must set forth allegations of defamation with reasonable
specificity. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, p. 10 (La.
3/17/06), 929 So. 2d 1211, 1218. Reasonable specificity entails “information about
who made the alleged defamatory statements, how the alleged statements were
communicated, the specific language of the alleged statements, or to whom the
alleged statements were made.” Express Lien, Inc. v. Nationwide Notice, Inc., No.
CV 16-2926, 2017 WL 1091252, at *2 (E.D. La. Mar. 23, 2017).
Plaintiff alleges “it has been reported by the CEO and other employees that
the Plaintiff was terminated due to stealing money from ICCHC, which is purely
defamatory and damaging to her reputation in a small-town community.” (Rec. Doc.
1, ¶15). Defendants refute the allegations, but the Court cannot consider factual
defenses on the merits at this early stage. Although the timing of the allegedly
defamatory statements can be reasonably inferred based on the totality of the
complaint, the allegations do not show to whom such alleged statements were made.
Such statements made within the organization would not qualify, because “[i]n
Louisiana, statements between employees, made within the course and scope of their
employment, are not statements communicated or publicized to third persons for the
purposes of a defamation claim.” Brackens v. Stericycle, Inc., 829 F. App'x 17, 23
(5th Cir. 2020), quoting Williams v. United Parcel Serv., Inc., 757 F. App'x 342, 345
(5th Cir. 2018). Plaintiff states in her opposition that Defendants made the allegedly
false statements to third parties, including prospective employers and others in the
community. (Rec. Doc. 12, p. 7). Such allegations would suffice and cure the
complaint’s deficiency.
VI. Plaintiff’s Request to Amend
Plaintiff requested an opportunity to amend the complaint to more sufficiently
allege facts in support of her claims. (Rec. Doc. 13, p. 22). “District courts often
afford plaintiffs at least one opportunity to cure pleading deficiencies before
dismissing a case, unless it is clear that the defects are incurable or the plaintiffs
advise the court that they are unwilling or unable to amend in a manner which will
avoid dismissal.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313
F.3d 305, 329 (5th Cir. 2002). The court in its discretion may disallow amendment if
the amendment would be futile. Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic
Ass'n, 751 F.3d 368, 378 (5th Cir. 2014). “Futility is determined under Rule 12(b)(6)
standards, meaning an amendment is considered futile if it would fail to state a claim
upon which relief could be granted.” Legate v. Livingston, 822 F.3d 207, 211 (5th
Cir. 2016). “[A] district court is not obligated to grant a futile motion to amend, for
instance, when ‘the plaintiff has already pleaded his best case.’” Hernandez v. W.
Texas Treasures Est. Sales, L.L.C., 79 F.4th 464, 468 (5th Cir. 2023), quoting
Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009).
Regarding her claims for gender discrimination and hostile work
environment, Plaintiff’s opposition duplicates many of the complaint’s allegations
and provides no new factual allegations that, if added to the complaint, would affect
the Court’s ruling. Thus, the Court finds that these alleged facts constitute Plaintiff’s
best case, and Plaintiff should not be permitted to amend to assert gender
discrimination and hostile work environment claims. Regarding her defamation
claim, as discussed above, Plaintiff should be permitted to amend to assert further
factual allegations regarding publication of the allegedly defamatory statements to
third parties.
Conclusion
For the foregoing reasons, the Court recommends that Defendants’ Motion to
Dismiss (Rec. Doc. 10) be granted in part and denied in part. The motion should be
granted to dismiss Plaintiff’s Title VII discrimination and hostile work environment
claims. The motion should be denied to the extent Defendants seek to dismiss
Plaintiff’s Title VII retaliation claim and Plaintiff should be permitted an opportunity
to amend the complaint to better allege facts in support of her defamation claim. Any
amended complaint shall exclude claims for Title VII discrimination and hostile
work environment.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b),
parties aggrieved by this recommendation have fourteen days from service of this
report and recommendation to file specific, written objections with the Clerk of
Court. A party may respond to another party’s objections within fourteen days after
being served with of a copy of any objections or responses to the district judge at the
time of filing.
Failure to file written objections to the proposed factual findings and/or the
proposed legal conclusions reflected in the report and recommendation within
fourteen days following the date of its service, or within the time frame authorized
by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual
findings or the legal conclusions accepted by the district court, except upon grounds
of plain error. See Douglass v. United Services Automobile Association, 79 F.3d
1415 (5 Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.
§$636(b)(1).
THUS DONE in Chambers, Lafayette, Louisiana on this 6 day of November,
CAROL B. WHITEHURST
UNITED STATES MAGISTRATE JUDGE
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