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
April Farmer against her former employer, the Louisiana State
Board of Medical Examiners (the “Board”), and the
Board's Executive Director and Director of
Investigations, Dr. Cecilia Mouton, in her individual and
official capacities. Farmer asserts claims of race
discrimination, hostile work environment, constructive
discharge and retaliation in violation of Title VII, 42
U.S.C. § 2000e et seq., the Louisiana Employment
Discrimination Law, La. Rev. Stat. § 23:301 et seq., and
42 U.S.C. § 1983; reprisal for whistle-blowing activity
in violation of the Louisiana Whistleblower Statute, La. Rev.
Stat. § 23:967; and intentional infliction of emotional
distress under Louisiana state law. She seeks compensatory
and punitive damages, a declaratory judgment and injunctive
relief. Complaint, Record Doc. No. 1.
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. 20.
Board filed a Rule 12(b)(1) and 12(b)(6) Motion for Partial
Dismissal as to all of plaintiff's claims,
except (1) her discrimination, hostile work
environment and retaliation claims against the Board under
Title VII, and (2) her discrimination, hostile work
environment and retaliation claims against Dr. Mouton in her
individual capacity under Section 1983 and her related claim
for punitive damages against Dr. Mouton individually. Record
Doc. No. 14. Farmer filed a timely opposition memorandum,
Record Doc. No. 18, and defendants received leave to file a
reply memorandum. Record Doc. Nos. 21, 23, 24. 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.
Standards of Review
move to dismiss some of plaintiff's claims under
Fed.R.Civ.P. 12(b)(1), which requires dismissal if the court
lacks subject matter jurisdiction over the claim. Motions
brought under Rule 12(b)(1)
allow a party to challenge the subject matter jurisdiction of
the district court to hear a case. Lack of subject matter
jurisdiction may be found in any one of three instances: (1)
the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.
The burden of proof for a Rule 12(b)(1) motion to dismiss is
on the party asserting jurisdiction. Accordingly, the
plaintiff constantly bears the burden of proof that
jurisdiction does in fact exist.
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001) (citations omitted); accord Crane v.
Johnson, 783 F.3d 244, 250-51 (5th Cir. 2015) (citations
12(b)(1) motion should be granted only if it appears certain
that plaintiff cannot prove a plausible set of facts that
establish subject-matter jurisdiction. Venable v. La.
Workers' Comp. Corp., 740 F.3d 937, 941 (5th Cir.
2013); Davis v. United States, 597 F.3d 646, 649
(5th Cir. 2009). A motion to dismiss under Rule 12(b)(1) is
analyzed under the same standard as a motion under Rule
12(b)(6). In re Mirant Corp., 675 F.3d 530, 533 (5th
Cir. 2012); Lane v. Halliburton, 529 F.3d 548, 557
(5th Cir. 2008).
move pursuant to Rule 12(b)(6) to dismiss some of
plaintiff's claims for failure to state a claim upon
which relief can be granted. Under this rule, as 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))).
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)).
Eleventh Amendment Immunity for State Law Claims
contend in their Rule 12(b)(1) motion that Farmer's
“state law discrimination claims, ” Record Doc.
No. 14-1 at p. 5 (which the court understands to mean her
claims of race discrimination, hostile work environment,
constructive discharge and retaliation under the Louisiana
Employment Discrimination Law); reprisal under the Louisiana
Whistleblower Statute; and intentional infliction of
emotional distress under Louisiana law against the Board and
against Dr. Mouton in her official capacity must be dismissed
for lack of subject matter jurisdiction. Defendants argue
that the Board is a state agency that, pursuant to the
Eleventh Amendment to the United States Constitution, is
immune to being sued on state law claims in federal court and
that Dr. Mouton in her official capacity is similarly immune.
responds that the Board is not an “arm of the
state” entitled to immunity because it is not
state-funded. In support, Farmer submitted an unverified copy
of the Board's budgets for 2014 and 2013. Plaintiff's
Exh. F, Record Doc. No. 18-6. In their reply memorandum,
defendants do not contest the authenticity of the budgets,
but argue that the court should ignore the exhibit when
resolving their motion under Rule 12(b)(6). However,
in deciding a Rule 12(b)(1) motion “involving
jurisdiction, the district court may consider evidence
outside the pleadings and resolve factual disputes.”
In re Complaint of RLB Contracting, Inc., 773 F.3d
596, 601 (5th Cir. 2014). Eleventh Amendment immunity is
jurisdictional. Cozzo v. Tangipahoa Parish Council,
279 F.3d 273, 280 (5th Cir. 2002). Thus, the court considers
the budget documents in connection with defendants' Rule
State of Louisiana is immune from suit in federal court under
the Eleventh Amendment. Sovereign immunity under the Eleventh
Amendment bars actions in federal court against a state or
state agency unless the state has consented to be sued or
Congress has clearly and validly abrogated the state's
immunity. U.S. Const. amend. XI; Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100 (1984);
Ala. v. Pugh, 438 U.S. 781, 782 (1978); Perez v.
Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir.
2002); Cozzo, 279 F.3d at 280.
Amendment immunity extends to any state agency or entity
deemed an ‘alter ego' or ‘arm' of the
state.” Perez, 307 F.3d at 326.
“[W]hether a particular political entity is an arm of
the state is a question of federal law.” Vogt v.
Bd. of Comm'rs, 294 F.3d 684, 690 n.4 (5th
Cir. 2002) (citation omitted).
There is no bright-line test for determining whether a
political entity is an “arm of the State” for
purposes of Eleventh Amendment immunity. Instead, the matter
is determined by reasoned judgment about whether the lawsuit
is one which, despite the presence of a state agency as the
nominal defendant, is effectively against the sovereign
state. In making this inquiry, this circuit traditionally has
considered six factors: (1) whether state statutes and case
law characterize the agency as an arm of the state; (2) the
source of funds for the entity; (3) the degree of local
autonomy the entity enjoys; (4) whether the entity is
concerned primarily with local, as opposed to statewide,
problems; (5) whether the entity has authority to sue and be
sued in its own name; and (6) whether the entity has the
right to hold and use property. [T]he most significant
factor in assessing an entity's status is whether a
judgment against it will be paid with state funds.
Id. at 689 (quotation and citations omitted)
(emphasis added). “[T]he last two factors weigh
significantly less in the six factor balance of
equities.” Cozzo, 279 F.3d at 281.
an official-capacity suit for monetary relief ‘against
a state officer is not a suit against the official but rather
is a suit against the official's office. As such it is no
different from a suit against the State itself' and is
likewise barred by the Eleventh Amendment.” Emerson
v. Provencher, No. 15-137-SDD-RLB, 2015 WL 9685505, at
*2 (M.D. La. Dec. 1, 2015), report & recommendation
adopted, 2016 WL 109968 (M.D. La. Jan. 8, 2016) (quoting
Hafer v. Melo, 502 U.S. 21, 25-26 (1991));
accord Chaney v. La. Work Force Comm'n, 560
F.App'x 417, 418 (5th Cir. 2014) (citing Hafer,
502 U.S. at 25).
in each unsanctioned instance of federal suit, the state or
its agency must affirmatively waive its Eleventh Amendment
immunity. Port Auth. Trans-Hudson Corp. v. Feeney,
495 U.S. 299, 305 (1990); Stem v. Ahearn, 908 F.2d
1, 4 (5th Cir. 1990). “By statute, Louisiana has
refused any such waiver of its Eleventh Amendment sovereign
immunity regarding suits in federal courts.”
Cozzo, 279 F.3d at 281 (citing La. Rev. Stat. §
13:5106(A), which provides: “No suit against the state
or a state agency or political subdivision shall be
instituted in any court other than a Louisiana state
court.”). Defendants decline to waive their alleged
immunity in the instant case.
support of their argument that the Board is an arm of the
state entitled to Eleventh Amendment immunity, defendants
rely on La. Rev. Stat. § 37:1263(A), which provides:
“The Louisiana State Board of Medical Examiners is
hereby created within the Louisiana Department of
Health.” Defendants accurately assert that every
district court in Louisiana to consider the issue has held
that the Board is immune from suit on state law claims in
federal court. See Hunter v. La. State Bd. of Med.
Examiners, No. 15-1833, 2016 WL 3388380, at *2 (E.D. La.
June 20, 2016); Azfal v. Mouton, No. 14-2786, 2015
WL 2169529, at *3 (E.D. La. May 8, 2015); Farber v. La.
State Bd. of Med. Examiners, No. 06-3475, 2006 WL
3531644, at *3 (E.D. La. Dec. 5, 2006); Torres-Jiminez v.
La. State Bd. of Med. Examiners, No. 95-0721, 1995 WL
626155, at ...