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Farmer v. Mouton

United States District Court, E.D. Louisiana

May 8, 2017

APRIL FARMER
v.
CECILIA MOUTON ET AL.

          ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         This is 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.

         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. 20.

         The 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[1] 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.

         A. Standards of Review

         Defendants 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 omitted).

         A Rule 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).

         Defendants 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))).

         “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. Eleventh Amendment Immunity for State Law Claims

         Defendants 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.

         Farmer 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 12(b)(1) motion.

         The 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.

         “Eleventh 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.

         “Moreover, 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).

         Thus, 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.

         In 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 ...


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