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Malin v. Orleans Parish Communications District

United States District Court, E.D. Louisiana

June 5, 2017

FRITH MALIN
v.
ORLEANS PARISH COMMUNICATIONS DISTRICT

         SECTION “B” (4)

          ORDER AND REASONS I. NATURE OF MOTION AND RELIEF SOUGHT

         Before the court is Defendant Orleans Parish Communications District's “Motion to Dismiss for Failure to State a Claim” (Rec. Doc. 11), “Plaintiff's Memorandum in Opposition to Motion to Dismiss for Failure to State a Claim” (Rec. Doc. 12), “Reply Memorandum in Support of Defendant's Motion to Dismiss for Failure to State a Claim” (Rec. Doc. 16), Defendant Orleans Parish Communications District's “Motion to Dismiss for Failure to State a Claim in Original, First and Second Supplemental and Amending Complaint” (Rec. Doc. 18), “Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss for Failure to State a Claim in Original, First and Second Supplemental and Amending Complaint” (Rec. Doc. 19), “Reply Memorandum in Support of Defendant's Motion to Dismiss for Failure to State a Claim in Original, First and Second Supplemental and Amending Complaint” (Rec. Doc. 22), Orleans Parish Communications District's “Motion to Dismiss for Failure to State a Claim in Original, First, Second and Third Supplemental and Amending Complaint” (Rec. Doc. 30) and “Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss for Failure to State a Claim in Original, First, Second and Third Supplemental and Amending Complaint” (Rec. Doc. 31).

         IT IS ORDERED that the Defendant's Motions to Dismiss (Rec. Docs. 11, 18, 30) are GRANTED.

         II. FACTS AND PROCEDURAL HISTORY

         Plaintiff, Frith Malin, worked at the Orleans Parish Communications District (“OPCD”) for eight years until the OPCD fired her on July 29, 2016 (Rec. Doc. 1). Plaintiff held the position of Deputy Director for the OPCD on the date of her termination (Rec. Doc. 1).

         On June 24, 2016, Stephen Gordon, the OPCD Director, sent an email to all OPCD employees, announcing that a current OPCD board member, Andy Kopplin, had been named CEO of the Greater New Orleans Foundation (Rec. Doc. 1). On the same date Plaintiff replied to Gordon's email and stated “I'm sure he will do just as good a job bleeding all these funds dry, just as he has done with the City. I'm willing to bet he starts charging a higher admin/maintenance fee to the entities that have funds there. I normally donate to Franklin via this fund, but won't do that again.” (Rec. Doc. 1). Plaintiff intended to only send this message to Gordon but inadvertently replied all (Rec. Doc. 1). On June 27, 2016, the OPCD suspended the Plaintiff from her employment while it conducted an internal investigation regarding her email response (Rec. Doc. 1). The OPCD appointed Jeanne Hobson, the OPCD Human Resources Manager, to conduct the internal investigation and on July 15, 2016 she issued a report entitled “Administrative Investigation of Frith Malin, Deputy Director.” (Rec. Doc. 1). In her report Jeanne Hobson recommended that the OPCD terminate Plaintiff and pursuant to her recommendation the OPCD fired Plaintiff on July 29, 2016 (Rec. Doc. 1).

         Plaintiff alleges that in the six or seven months prior to her termination Jeanne Hobson created a sexually hostile work environment for her through discussing non-monogamous heterosexual sexual encounters (Rec. Doc. 29). Plaintiff stated that she then complained about these sexual comments to Stephen Gordon, the OPCD Director (Rec. Doc. 29). Plaintiff alleges that her termination was in retaliation for complaining against Ms. Hobson (Rec. Doc. 6).

         Plaintiff filed a “Complaint with Jury Demand” (Rec. Doc. 1), “Plaintiff's First Supplemental and Amending Complaint” (Rec. Doc. 6), “Plaintiff's Second Supplemental and Amending Complaint” (Rec. Doc. 17) and “Plaintiff's Third Supplemental and Amending Complaint” (Rec. Doc. 29). Plaintiff brings claims under (1) Section 1983, violation of the First Amendment; (2) Title VII retaliation; and (3) the Louisiana Whistleblower Statute.

         III. FACTUAL AND LEGAL FINDINGS

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).

         When reviewing a motion to dismiss, courts must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). However, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)(quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009))(internal quotation marks omitted). The Supreme Court in Iqbal explained that Twombly promulgated a “two-pronged approach” to determine whether a complaint states a plausible claim for relief. Iqbal, 129 S.Ct. at 1950. First, courts must identify those pleadings that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. Legal conclusions “must be supported by factual allegations.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 1949.

         Upon identifying the well-pleaded factual allegations, courts “assume their veracity and then determine whether they plausibly give rise to an entitlement of relief.” Id. at 1950. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949. This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The plaintiffs must “nudge[] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         A. FIRST AMENDMENT CLAIMS

         In the Fifth Circuit in order to establish a prima facie case of First Amendment retaliation, a Plaintiff must demonstrate that she (1) suffered an adverse employment decision; (2) her speech involved a matter of public concern; (3) her interest in commenting on matters of public concern outweighs the Defendant's interest in promoting efficiency; and (4) her speech motivated the adverse employment decision. Beattie v. Madison County Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001). Nonetheless, the United States Supreme Court has held that “when public employees make statements pursuant to their official duties, the employees are not speaking as ...


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