United States District Court, E.D. Louisiana
KIM L. MAYS
BOARD OF COMMISSIONERS PORT OF NEW ORLEANS, et al., SECTION:
NANNETTE JOLIVETTE BROWN, District Judge.
Before the Court is Defendants Board of Commissioners, Port of New Orleans' (the "Port") and Ryan Bylsma's ("Bylsma") (collectively, "Defendants") "Rule 12(b)(6) Partial Motion to Dismiss." Having considered the motion, the memoranda in support and in opposition, the complaint, and the applicable law, the Court will grant the motion in part, deny the motion in part, and grant Plaintiff leave to amend her complaint within ten days of this Order.
A. Factual Background
According to the complaint, Plaintiff Kim Mays is an African-American female and veteran of the United States Army who suffers from post-traumatic stress disorder ("PTSD"). She filed this lawsuit against her employer, the Port, as well as against two Port employees: Ryan Bylsma ("Bylsma") and Armand Rodriguez ("Rodriguez"). She does not state in the complaint whether she names Bylsma and Rodriguez in their individual and/or official capacities.
Plaintiff alleges that Defendants violated her rights pursuant to 42 U.S.C. §§ 1981, 1983, and 1985; Title VII; the Americans with Disabilities Act ("ADA"); the Family and Medical Leave Act ("FMLA"); and Louisiana state discrimination statutes. She additionally brings causes of action for intentional infliction of emotional distress ("IIED") and for conspiracy.
Specifically, Plaintiff alleges that in July 2011, an "inappropriate sexually oriented remark" was made to her by Rodriguez. She states that she reported the incident to her immediate supervisor, but claims that "the only actions taken by the Port's management was [sic] to counsel Mr. Rodriguez and request that he apologize." Plaintiff next asserts that on November 23, 2013, Rodriguez sent her "an inappropriate e-mail that was sexual in nature, " which she reported to Bylsma, who was her supervisor at the time, as well as other individuals at the Port. According to the complaint, "[t]he Port failed to remove Mr. Rodriguez from proximity to Ms. Mays in the workplace and failed to take other immediate and appropriate corrective action because Mr. Rodriguez is Caucasian and Ms. Mays is African-American."
Plaintiff contends that she sought medical treatment on December 4, 2013 for PTSD exacerbated by a hostile work environment. According to the complaint, she was released to return to work on December 23, 2013, and her physician "requested that the Port provide Ms. Mays with a reasonable accommodation by allowing Ms. Mays to work from home or removing her harasser [sic] from the workplace." Plaintiff alleges that the Port failed to provide reasonable accommodations, and also failed to designate her leave as FMLA leave.
Plaintiff additionally alleges in her complaint that she filed a charge with the EEOC on December 4, 2013. She alleges that, in retaliation for filing that charge, the Port issued a "predeprivation notice recommendation for a non-disciplinary removal, " removed her name plate from her office door, packed her personal items from her office, removed her name from the organizational chart, and conspired to place her in a shared office. She asserts that the predeprivation notice was rescinded on January 16, 2014.
B. Procedural Background
Plaintiff filed the complaint in this matter on May 2, 2014. Defendants filed the pending motion to dismiss for failure to state a claim on June 17, 2014. Plaintiff filed a memorandum in opposition on June 30, 2014,  and Defendants filed a memorandum in reply on July 24, 2014.
II. Parties' Arguments
A. Defendants' Arguments in Support of Partial Dismissal
Defendants first contend that Plaintiff has not and cannot state a claim upon which relief can be granted for her Title VII, ADA, or state law discrimination claims against Bylsma. They argue that individuals are not subject to liability under either Title VII or the ADA. Next, they aver that Louisiana's Employment Discrimination Statute prohibits intentional discrimination by employers, but Bylsma was not Plaintiff's employer within the meaning of the statute. Defendants also argue that Plaintiff's claim arising under Louisiana Revised Statute § 51:2231, which "creates the Louisiana Human Rights Commission as a basis for relief, " should be dismissed against Bylsma because "this cause of action cannot be brought against individual employees."
Next, Defendants seek partial dismissal of Plaintiff's § 1983, conspiracy and IIED claims against both the Port and Bylsma. To succeed on a § 1983 claim against the Port, according to Defendants, Plaintiff must prove (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights whose moving force is the policy or custom. Here, Defendants aver, Plaintiff has failed to allege "any official policy or widespread custom, the purpose of which was to (and actually did) deprive her of her constitutional rights." Defendants do not present any arguments with respect to whether Plaintiff states a viable § 1983 claim against Bylsma.
Next, Defendants argue that Plaintiff makes only a conclusory allegation of a conspiracy, but that she fails to allege the nature of the alleged conspiracy or "specifically demonstrate with material facts that the defendants reached an agreement" to deprive her of her rights. Also, Defendants contend that Plaintiff's IIED claim must be dismissed because she fails to allege any conduct that would rise to the level of "outrageous conduct." Defendants additionally seek dismissal of Plaintiff's request for punitive damages because, they contend, political subdivisions of the state cannot be subject to such damages, and the Port is a political subdivision of the state. Again, Defendants do not make any arguments with respect to whether Plaintiff may obtain punitive damages from Bylsma. Finally, Defendants argue that Plaintiff has failed to exhaust administrative remedies with respect to her Title VII and ADA claims because she has not alleged receipt of a right-to-sue notice from the EEOC with respect to any of her claims.
B. Plaintiff's Arguments in Opposition to Partial Dismissal
Plaintiff argues first that Defendants offer no argument as to why her § 1983 claims against Bylsma should be dismissed, and that her complaint "clearly states that the Port management, those in policymaking positions, failed to take appropriate action." She contends that:
The failure of the entire management team to take appropriate action is indicative of a moving force engaged in a widespread practice and custom of maintaining a policy designed to deprive Ms. Mays of her rights pursuant to Title VII, the FMLA, the ADA, and the United States Constitution's Fourteenth Amendment right to due process.
With respect to her conspiracy claim, Plaintiff states that her complaint "is very clear and precise, " and that "[h]er claim identifies her supervisor, Ryan Bylsma, the Port's Administrative Director, Cynthia Swain, Mr. Armand Rodriguez's immediate supervisor, Richard Bush and even Mr. Bush's supervisor, Jerry Knox." Turning to the issue of punitive damages, Plaintiff states that Defendants seek dismissal of her claims for punitive damages against the Port, but that "Defendants do not argue that Ms. Mays' other punitive damages claims must be dismissed. Consequently, those claims must be allowed to go forward."
Plaintiff next argues that she has stated a viable IIED claim because:
[t]he conduct of defendants was extreme in that they refused to take appropriate action notwithstanding the fact they had notice from Ms. Mays' mental healthcare provider that Ms. Mays' [sic] was suffering from mental health problems that ...