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Emperador-Baker v. Jazz Casino Company, LLC

United States District Court, E.D. Louisiana

April 12, 2017




         This is 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.

         Harrah's 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.


         A. Standard of Review

         Defendant 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 Supreme Court,

“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))).

         “The 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)).

         “With 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)).

         B. State Law Claims

         Harrah's 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.

         C. Title VII Claims

         Harrah's 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 ...

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