United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
an employment discrimination action brought by plaintiff
Evelyn Emperador-Baker against her former employer, Jazz
Casino Company, LLC d/b/a Harrah's New Orleans Casino
(“Harrah's”), asserting claims of sex
discrimination, hostile work environment, constructive
discharge and retaliation in violation of Title VII, 42
U.S.C. § 2000e et seq., and the Louisiana Employment
Discrimination Law, La. Rev. Stat. § 23:301 et seq; and
state-law tort claims of assault and battery. Complaint,
Record Doc. No. 1. This matter was referred to a United
States Magistrate Judge for all proceedings and entry of
judgment in accordance with 28 U.S.C. § 636(c) upon
written consent of all parties. Record Doc. No. 16.
filed a Partial 12(b)(6) Motion to Dismiss only
plaintiff's constructive discharge and retaliation claims
under federal and state law, her state law tort claims, and
her third and fourth causes of action denominated in her
complaint as “Lack of Policy for Sexual Harassment,
Discrimination and Retaliation” and “Compensatory
and Punitive Damages under Title VII Are Allowed, ”
respectively. Record Doc. No. 7. Emperador-Baker filed a
timely opposition memorandum, Record Doc. No. 18, and
defendant received leave to file a reply memorandum. Record
Doc. Nos. 19, 21, 22. Having considered the complaint, the
record, the arguments of the parties and the applicable law,
and for the following reasons, IT IS ORDERED that the motion
is GRANTED IN PART AND DENIED IN PART as follows.
Standard of Review
moves under Rule 12(b)(6) to dismiss plaintiff's claims
for failure to state a claim upon which relief can be
granted. Under this rule, as recently clarified by the
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” A claim for relief is
plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” A claim for relief is implausible on its face
when “the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct.”
Harold H. Huggins Realty, Inc. v. FNC, Inc., 634
F.3d 787, 796 (5th Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007))).
Supreme Court's decisions in Iqbal and
Twombly . . . did not alter the longstanding
requirement that when evaluating a motion to dismiss under
Rule 12(b)(6), a court must accept[ ] all well-pleaded facts
as true and view[ ] those facts in the light most favorable
to the plaintiff.” Id. at 803 n.44 (quotation
omitted); accord Murchison Capital Partners,
L.P. v. Nuance Commc'ns, Inc., 625 F. App'x 617,
618 n.1 (5th Cir. 2015) (citing Wood v. Moss, 134
S.Ct. 2056, 2065 n.5 (2014)).
respect to any well-pleaded allegations ‘a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.'”
Jabary v. City of Allen, 547 F. App'x 600, 604
(5th Cir. 2013) (quoting Iqbal, 556 U.S. at 664).
“Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact).” Maloney Gaming Mgmt., L.L.C. v.
St. Tammany Parish, 456 F. App'x 336, 340 (5th Cir.
2011) (quotations omitted) (citing Iqbal, 129 S.Ct.
at 1959; Elsensohn v. St. Tammany Parish Sheriff's
Ofc., 530 F.3d 368, 371 (5th Cir. 2008); In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 n.10
(5th Cir. 2007)).
State Law Claims
argues that all of Emperador-Baker's claims under the
Louisiana Employment Discrimination Law and Louisiana tort
law are untimely. Plaintiff does not oppose dismissal of her
state law claims of sex discrimination, sexual harassment,
hostile work environment, retaliation, assault and battery.
Accordingly, defendant's motion is GRANTED to the extent
it seeks dismissal of her claims under Louisiana law.
Title VII Claims
argues that plaintiff's constructive discharge and
retaliation claims under Title VII are barred because she did
not assert these claims in the charge of sex discrimination
and hostile work environment that she filed with the Equal
Employment Opportunity Commission (the “EEOC”)
and because constructive discharge and retaliation are
outside the scope of the EEOC investigation that could
reasonably be expected to grow out of the sex discrimination
charge. Harrah's motion is ...