Do

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NHA T. DO CIVIL ACTION

VERSUS NUMBER: 25-2545

NEW ORLEANS CITY, ET AL. DIVISION: (5)

ORDER AND REASONS

Before the Court is the Motion to Dismiss for Failure to State a Claim (rec. doc. 11)

filed by Defendants the City of New Orleans and Tammie Jackson, in her individual and

official capacity as the Director of the Department of Safety and Permits for the City of New

Orleans (collectively, “Defendants”). Plaintiff Nha T. Do opposes the motion (rec. doc. 15),

and Defendants have filed a reply. (Rec. doc. 19). Having reviewed the pleadings and the

aI.pplicaBblaec lkagwr,o tuhen dCourt rules as follows.

Plaintiff, who is Vietnamese, filed his Complaint against Defendants on December 23,

2025. (Rec. doc. 1). This suit arises from the termination of Plaintiff’s employment at the

City of New OIdrleans Department of Safety & Permits where he first began working on April

28, 2008. ( . at ¶ 2). Plaintiff, who holds an electrIidca.l engineering degree, held the

permanent status position of Chief Electrical Inspector. ( at ¶¶ 2, 11). In or around 2015,

Office of the Inspector General (“OIG”) employee Kristen Morales madIed .a comment that an

“Asian inspector should not do inspection[s] for Asian contractors.” ( at ¶ 23).

In 2024, Plaintiff became the subject of an investigation by the Department of Safety

and Permits,I din. cooperation with the Office of Inspector General, regarding alleged policy

violations. ( at ¶ 12). Director Tammie Jackson called OIG Director Kenneth Petro and

State Board Contractor Investigator Sean Beavers to Plaintiff’s workplace, wherIed .they

attempted to "force [him] to sign a 'public corruption' document against [his] will.” ( at ¶

29).

On January 25, 2024, Plaintiff submitted a Formal Complaint Letter in which he

requested that investigations against him by the OIG (Kenneth Petro) and the State Board of

Contractors (Sean Beavers) cease, characterized their actions as "persecutorial [sic] tactics

to intimidate [him] and force [him] from [his] job," and noted that they had rIedp.eatedly

threatened his civil-service status and falsely accused him of Public Corruption. ( at ¶ 6).

On February 12, 2024, Plaintiff received a Notification of EmeIrdg.ency Suspension and

Pre-Termination Hearing, placing him on suspension without pay.I d(. at ¶ 13). On April 8,

2024, Tammie Jackson issued a letter of termination to Plaintiff. ( at ¶ 30). The grounds

for termination included violations of departmental conflict of interest policy (Policy 13-10)

and ethical violations, incluIdd.ing allegedly improperly closing out permits on four properties

he owned in 2016-2017. (Id. at ¶ 14). On appeal, the New Orleans Civil Service Commission

upheld the termination. ( at ¶ 18). Plaintiff also timely filed an appeal of the Civil ServDicoe

vC.o Dmepm'tis osfi oSnaf teoty t h&e P Ceormuritt sof Appeal for the Fourth Circuit, whiwchr iut pdhenelided the termination.

, 420 So.3d 714 (La. Ct. App. 2025), , 420 So.3d 714 (La.

2025).

Plaintiff’s Complaint against Defendants asserts the following claims: (i) a violation of

Title VII for discrimination on the basis of race and national origin and (ii) a violation of Title

VII for retaliation on the basis of race and national origin. Plaintiff claims that Defendants

subjected him to unlawful discrimination based on his race and/or Vietnamese national

origin, culminating in his emergency suspension and termination. (Rec. doc. 1 at ¶ 33).

Further, Plaintiff alleges that he engaged in protected activity by reporting illegal activities,

acting as a whistleblower, and submitting a formal complaint Iodn January 25, 2024, detailing

harassment and persecution by OIG and State Board staff. ( . at ¶ 37). As such, Plaintiff

argues that Defendants took adverse employment actions – specifically the emergency

suspension on February 12, 2024 and his subsequent termination on April 8, 2024 – due to

PIldaintiff’s protected activities in opposing perceived unlawful harassment and corruption.

I(I. . at ¶S 3ta8n-3d9a)r. d on a Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for

dismissal of a complaint for failure to state a claim upon which rSeeleieLfo cwarne by ev .g Treaxn. Ate &d. M S uUcnhi va.

Smyos.t,ion is viewed with disfavor and is therefore rareKlya gisrearn tAeldu.m inu m & Chem. Sales, Inc. v.

Avon d1a1l7e SFh.3ipdy a2r4d2s,, I2n4c7 (5th Cir. 1997) (quoting

., 677 F.2d 1045, 1050 (5th Cir. 1982)).

In considering a Rule 12(b)(6) motion, the Court “accept[s] alSl ewe eTlhl-opmlepasdoend v f. aCcittsy aosf

tWruaec oa,n Tde xv.iew[s] all facts in the light most favorable tDoo teh eex p rlaeli.n Mtifafg.”e e v. Covington Cnty. Sch.

Dist. ex rel,. 7K6e4y sF.3d 500, 502 (5th Cir. 2014) (citing

, 675 F.3d 849, 854 (5th Cir. 2012) (en banc)). But in deciding whether

dismisIsda.l is warranted, theA sChocurrotf tw vi.l lI qnboatl accept conclusory allegations in the complaint as

true. at 502-03 (citing , 556 U.S. 662, 678 (2009)).

To survive dismissal, “‘a complaint must contain s”u fGfiocnieznatl efza cvt. uKaaly matter, accepted as

true, to state a claim to reIqlibeaf lthat is plausible on its face.’ , 577 F.3d 600, 603

(5th Cir. 2009) (quoting , 556 U.S. at 678) (internal quotation marks omitted). “Factual

allegations must be enough to raise a right to relief above the speculative level, on the

Bell

Aastls. uCmorppt.i ov.n T twhoamt abllly the allegations in the complaint are true (even if doubtful in fact).”

, 550 U.S. 544, 555 (2007) (citations and footnote omitted). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the couIrqt btoal draw the

reasonable inference that the defendant is liable for the misconduct alleged.” , 556 U.S.

at 678 (“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.”). This is a “context-

specific taIds.k that requires the reviewing court to draw on its judicial experience and common

sense.” at 679. “Where a complaint pleads facts that are merely consistent with a

defendant's liability, iIt d.stops short of the line between possibilityT wanodm bpllyausibility of

entitlement to relief.” at 678 (internal quotations omitted) (citing , 550 U.S. at

557). “[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief,’” thus,

“requires more than labels anTdw coomnbcllyusions, and a formulaic recitation of the elements of a

cause of action will not do.” , 550 U.S. at 555.

Finally, “[w]hen reviewing a motion to dismiss, a district court ‘must consider the

complaint in its entirety, as well as other sources ordinarily examined when ruling on Rule

12(b)(6) motions to dismiss, in particular, documents incorporatFeudn ink tvo. Stthrey kceorm Cpolrapi.nt by

reference, and matters of which a courTte mllaabys ,t aInkec. jvu. dMicaikaol rn Iostsiucees.” & Rights, Ltd. , 631

F.3d 777, 783 (5th Cir. 2011) (quoting , 551 U.S. 308,

322 (2007)). If the Court considers materials outside of the pleadings, thSee em Coatiuosne yt ov d. iSsemwieslsl

Cmaudsiltl abce-C threevarteodle tas a motion for summary judgment under RPuhleo e5n6i.x on behalf of S.W. v.

Lafourche Par. Gov, 'tInc., 394 F.3d 285, 288 (5th Cir. 2004); see

also , No. CV 19-13004, 2021 WL 184909, at *3-4 (E.D. La. Jan. 19, 2021);

Fed. R. Civ. P. 12(d).

III. Law and Analysis

A. Claim for Violation of Title VII Race and National Origin Discrimination

McDonnell

Douglas“A plaintiff need not make out a prima facie case of discrimination [under

Raj v. La]. Sinta oter dUenri vto survive a Rule 12(b)(6) motion to dismiss for failure to state a claim.”

., 714 F.3d 322, 331 (5th Cir. 2013). However, the Fifth Circuit has noted

that although a plaintiff does not “have to submit evidence to establish a prima facie case of

discrimination at this stage, [he must] plead sufficient factCs hohni mal lv o. Uf tnhive. uolft Timexa. taet e Aleumsteinnts of

a disparate treatment claim to make [his] case plausible.” , 836

F.3d 467, 470 (5th Cir. 2016).

There are two ultimate elements that a plaintiff must plead to support a disparate

treatment claim under Title VII: (1) an “adSveeer sRea ejmployment action” (2) takKeann iadgaa vi.n Gsut laf

pCloaainstt iMffe “db. ePcearus.s LeP of h[is] protected status.” , 71s4e eF .a3ldso a itd 3. 31 (quoting

, 363 F.3d 568, 576 (5th Cir. 2004)); (explaining that a plaintiff

must allege “facts, [either] direct or circumstantial, that would suggest [the employer's]

actions were based on [the plaintiff's] race or national origin or that [the employePra]c threecaote vd.

sMiminielatarly situated employees of other races or national origin more favorably”);

, 448 F.3d 783, 787 (5th Cir. 2006) (noting that a “discriminatory motive is required”

for disparate treatment claims).

Here, Plaintiff can establish the first element in that he experienced adverse

employment actions through the February 12, 2024 emergency suspension and the April 8,

2024 termination. However, Plaintiff fails to show that the emergency suspension and

termination were adverse employment actions taken because of his race or national origin.

The only allegation related to race or national origin was the comment attributed to OIG

employee Kristen Morales. Plaintiff’s pleading states: “The discrimination began ‘since 2015

and continuing’ when an individual from OIG, Kristen Morales, made a comment in the

presence of electrical contractors that an ‘Asian inspector should not do inspection for Asian

contractors.’” (Rec. doc. 11-1 at 4). He does not allege when the comment was made,

although it could have been as early as 2015. It is also uncertain whether Plaintiff was

present at the time the comment was made, because the facts alleged only include the

presence of electrical contractors. Plaintiff then experienced two adverse employment

actions in 2024 by director of Department of Safety & Permits, Tammie Jackson. There is no

temporal proximity because the subject comment was made at least three years before the

Plaintiff experienced the adverse employment actions. Further, Plaintiff fails to plead any

connection between Morales, who worked in the OIG’s office, and Tammie Jackson, the

Director of the Department & Safety Permits who made the adverse employment decisions

i n 2024B. . Claim for Violation of Title VII for Retaliation

Title VII makes it unlawful to discriminate or take an adverse employment action

against an employee who has opposed an employment practice made unlawful by Title VII.

42 U.S.C. § 2000e-3(a). “To state a claim for retaliation under Title VII, a plaintiff must show

that ‘(1) he engaged in conduct protected by Title VII; (2) he suffered a materially adverse

action; anCda b(3ra) la v .c Bauresnaln caonnnection exists between the protected activity aJenndk tinhse va. dCviteyr soef

aScatnio Ann.’t”o nio Fire Dep't , 853 F.3d 763, 766-67 (5th Cir. 2017) (quoting

, 784 F.3d 263, 269 (5th Cir. 2015)).

A “protected activity” under Title VII is defined as “opposition to any practice

rendered unlawful by Title VII, including making a charge, testifying, assisting, or

Williams v.

pRaecrotivceiprya tSinchg . Dinis tany investigation, proceeding, or hearing under TAcitklee l Vv.I NI.”a t 'l Commc'ns,

Inc. ., 859 F. Supp. 2d 824, 830-31 (E.D. La. 2012) (citing

, 339 F.3d 376, 385 (5th Cir. 2003)). Title VII thus covers two distinct types of protected

activity: (1) opposition to any practice rendered unlawful by Title VII (the “opposition

clause”), and (2) making a charge, testifying, assisting, or participatiCnrga winf oarndy v i.n Mveesttriog.a Gtioovn't,

pofr oNcaesehdviinllge , &o rD haevaidrsinong uCntyd.,e Tre Tnintle VII (the “participation clause”).

., 555 U.S. 271, 274 (2009).

Evidence that the plaintiff opposed the defendant's conduct, standing alone, does not

satisfy the opposition clEau.Es.Oe.. C .R va.t hReitre, tWhea yc lSaeursve., “Irnecq.uires opposition of a practice made

unlawful by Title VII.” , 819 F.3d 235, 240 (5th Cir. 2016)

(emphasis in original). However, the Fifth Circuit has made clear that the standard is not

whether the plaintiff can successfully state and support a Title VII claimI dbut whetPhaeyrn teh ve.

pMlacLinetmiffo r“er'esa sWonhaoblelsya blee li&ev eRse ttahiel eSmtoprleosyment practice to be unlawful.” . (citing

, 654 F.2d 1130, 1136 (5th Cir. 1981)). This

“reasonable belief” standard acknowledges that there is “some zone of conduct Itdhat falls

short of an actual violation but could be reasonably perceived to violate Title VII.” . at 241.

Here, Plaintiff did not include in his Formal Complaint Letter an allegation that the

conduct of the OIG and the State Board of Contractors involved discrimination in any way.

Instead, he characterizes their actions as “persecutorial [sic] tactics to intimidate [him] and

force [him] from [his] job” and notes that they had repeatedly threatened his civil service

status and falsely accused him of corruption. He does not plead any workplace act or practice

by the City’s OIG that violates the law. Thus, his pleadings do not adequately show that he

engaged in conduct protected by Title VII.

C. CLAIM AGAINST DEFENDANT TAMMIE JACKSON

Plaintiff also brings a Title VII claim against both the City of New Orleans and Tammie

Jackson in her individual and official capacity as the Director of the Department of Safety &

Permits for the City of New Orleans and therefore a decision maker responsible for the

adverse employment actions taken against Plaintiff. The Fifth CirSceueit S hmaist hc ovn. Asimsteednitslyys hInecld

that there is no individual liability for emInpdleosyte ve. sF ruenedmearn T Ditelec oVrIaI.t i ng .,

298 F.3d 434, 448 (5th Cir.2002) (citing , Inc., 164 F.3d 258, 262

(5th Cir. 1999)). “While Title VII's definition of the term employer includes “any agent” of an

emploIdyer, CongInredsess'ts purpose was merely to import respondeat superior liability into Title

VII.” . (citing , 16S4ee F D.3idxo ant 2v.6 P2r)i. m Tahruys H, aena eltmh pSleoryves.e C otrr .s, uperv.isor faces liability solely

in his official capacity. Harvey v. BlaCkive. A No. 10-1490, 2011 WL

1326841, at *2 (W.D.La. Mar. 3, 2011) (citing , 913 F.2d 226, 227 (5th

Cir.1990) (“Only when a public official is working in an official capacity can that official be

said to be an “agent” of the government.”)). Naming both the municipal employer and its

agent in their official capacity is redundant. Accordingly, the claims made against Defendant

TIVa.mmieC oJanccklsuosnio anr e dismissed with prejudice.

FITo rI Sth OeR fDorEeRgEoDin g reasons,

GRANTED that Defendants’ Motion to Dismiss for Failure to State a Claim (rec.

doc.D 1I1S)M isI SSED WITH aOnUdT P PlaRinEtJiUffD’sI CTEitle VII claims against Defendant City of New Orleans

are for failure to state a claim, and he is allowed 30 days

from the date of this Order and Reasons within which to amend his Complaint.

IT IS FURTHER ORDERED

DISMISSE tDha Wt PITlaHin PtifRf’EsJ cUlaDiImCsE against Defendant Tammie Jackson

pursuant to Title VII are 22nd . July

New Orleans, Louisiana, on this ____ day of , 2026.

MICHAEL B. NORTH

UNITED STATES MAGISTRATE JUDGE