United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
MARK L. HORNSBY, Magistrate Judge.
Kimberly Gonzalez, Sylenda Dixon, and Renee Caldwell are school teachers who were formerly employed at an alternative school in Caddo Parish that was operated by Ombudsman Educational Services, Ltd., a subsidiary of Educational Services of America. Guy Cooper served as the administrator or principal at the school. Plaintiffs allege that they were forced to resign or were fired after they objected to Cooper's demands that they alter or change student grades and sign falsified records. Mr. Cooper and the two corporate entities (Defendants) have filed a Motion to Dismiss (Doc. 23) that attacks the three causes of action asserted in Plaintiffs' Amended Complaint (Doc. 22). For the reasons that follow, it is recommended the motion be granted in part and denied in part.
"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007). Plaintiffs contracted for employment as school teachers with the two corporate defendants to work at an alternative school for students with behavioral problems. The school is a "public school entity" located in Shreveport. Amended Complaint, ¶¶ 10-11. Plaintiffs' duties included correctly reporting student grades in accordance with local and state guidelines, including those found in Title 28 of the Louisiana Administrative Code that govern public education entities operated within Louisiana. ¶ 13.
Mr. Cooper was listed as the "administrator" of the school, but he essentially served as the principal or top official at the location. Cooper, on more than one occasion, demanded that each of the Plaintiffs alter or change student grades and sign falsified records for submission to the parish school board. When Plaintiffs objected or refused, Cooper subjected them to mentally and emotionally distressing threats and harassment. He referred to himself as their "god" and said he would terminate them if they did not do as he instructed. ¶ 14. Plaintiffs allege that Cooper sought to falsify the grades because the past/fail rate of the student body impacted the school's ability to remain open and under contract. ¶ 20.
Plaintiffs Gonzalez and Dixon allege that they voiced their concerns and objections to Valerie King-Thompson, who was the night or evening supervisor. Nothing was done, and they resigned their jobs. Caldwell voiced her concerns to Mr. Cooper and the Center Director, Chamica Brown. Caldwell was fired three days later. ¶¶ 15-20.
Section 1981 Retaliation
Plaintiffs allege that Defendants violated their rights protected by 42 U.S.C. § 1981(a) and (b). The allege that Defendants "specifically (violated) their right to enjoy and enforce their contract of employment" and "to be free to perform their job duties professionally, legally and ethically, " and to be "free from retaliation and harassment for voicing their concerns." ¶ 28. Defendants argue that Plaintiffs have not alleged that they suffered from any form of race-based discrimination that is protected by Section 1981. Plaintiffs respond that they have a viable claim for retaliation under Section 1981.
Section 1981(a) provides that all persons shall have the same right "to make and enforce contracts... as is enjoyed by white citizens...." The Supreme Court interpreted the phrase "make and enforce contracts" narrowly and held that it did not apply to any conduct by an employer after the contractual relation was established. In response, Congress amended the statute in 1991 to add subsection (b) and clarify that "make and enforce contracts" includes making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. The Supreme Court later recognized that the amended statute encompasses retaliation claims. CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951 (2008).
Defendants argue in their motion that the Amended Complaint contains no allegation that Plaintiffs were fired or mistreated because of their race. Plaintiffs respond that their claim, "though not based on race, " is protected under Section 1981 because they were contractual employees who were obligated to uphold state law. They point to Foley v. University of Houston System, 355 F.3d 333 (5th Cir. 2003), a case which recognized a Section 1981 retaliation claim before Humphries settled the issue. Neither Foley, Humphries, nor any other Section 1981 case gives rise to a free-standing claim of "retaliation" in response to general complaints to an employer. Those cases recognize a cause of action for retaliation in response to the assertion of rights protected under Section 1981. A key element of a retaliation claim under the statute is that "the plaintiff engaged in activities protected by § 1981, " followed by an adverse employment action that was causally connected. Foley, 355 F.3d at 339. See also Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (prima facie case of retaliation requires showing of engagement in activity protected by the statute).
Plaintiffs have not alleged that they complained of racial discrimination in connection with their contract or that of any co-workers. Absent any allegation that Plaintiffs asserted or exercised any rights protected by Section 1981, there is no basis for a retaliation claim under the statute. All claims made pursuant to Section 1981 should be dismissed for failure to state a claim on which relief may be granted.
Louisiana Whistleblower Statute
Plaintiffs allege in paragraph 29 of their Amended Complaint that they were terminated in violation of the Louisiana Whistleblower statute, La. R.S. ...