United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTIONS
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
an employment discrimination action brought by plaintiff
Sharon Hunter against her former employer(s), the Jefferson
Parish Public School System (the “School
System”); the Jefferson Parish School Board (the
“Board”); the Board's individual members,
Cedric Floyd, Marion Bonura, Ricky Johnson, Raymond St.
Pierre and Melinda Doucet; and the School System's
Superintendent, Isaac Joseph. Hunter asserts claims of sex
discrimination, hostile work environment, constructive
discharge and retaliation in violation of Title VII, 42
U.S.C. § 2000e et seq.; and reprisal in violation of the
Louisiana Whistleblower Statute, La. Rev. Stat. §
23:967, and the Code of Governmental Ethics, La. Rev. Stat.
§ 42:1169. She seeks compensatory and punitive damages.
Complaint, Record Doc. No. 1; First Supplemental and Amending
Complaint, Record Doc. No. 19.
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. 25.
filed a Rule 12(b)(1) and 12(b)(6) Motion to Dismiss all of
plaintiff's claims. Record Doc. No. 5. Hunter filed a
timely opposition memorandum, Record Doc. No. 12, and
defendants received leave to file a reply memorandum. Record
Doc. Nos. 21, 23, 24.
defendants filed their motion to dismiss, plaintiff received
leave to amend her complaint without opposition, Record Doc.
Nos. 11, 15, 18, 19, to assert a jury demand and to attach
three documents: (1) her purported “charge with the
EEOC [Equal Employment Opportunity Commission] against all
defendants on February 13, 2016, ” which is a letter
from Hunter to the EEOC dated February 13, 2016; (2) the
EEOC's purported “Charge of Discrimination to the
defendants based on the Plaintiff's Charge filed with the
EEOC, ” which is an unsigned, undated copy of
Hunter's formal charge that she signed and filed on May
2, 2016 (see Defendant's Exh. A, Record Doc. No. 5-2, for
the signed and dated charge); and (3) the right to sue letter
sent by the EEOC to Hunter on January 17, 2017. Record Doc.
then filed a Motion for Leave to File a Second Supplemental
and Amending Complaint, which she states is opposed by
defendants. Record Doc. No. 27. Defendants' opposition to
this motion is not yet due. During a telephone conference
with counsel for the parties on July 6, 2017, plaintiff's
attorney advised the court that this motion and the proposed
second amendment address only some of the pleading
deficiencies in the complaint on which defendants' motion
to dismiss is based. Hunter also filed a Motion for Leave to
File a Supplemental Memorandum in opposition to
defendants' motion to dismiss. Record Doc. No. 28.
considered the complaint as amended, the record, the
arguments of the parties and the applicable law, and for the
following reasons, IT IS ORDERED that defendants' motion
to dismiss is GRANTED IN PART AND DENIED IN PART as follows.
FURTHER ORDERED that plaintiff's Motion for Leave to File
a Second Supplemental and Amending Complaint, Record Doc. No.
27, is DISMISSED WITHOUT PREJUDICE, subject to the order
contained herein permitting plaintiff one final opportunity
to amend to cure pleading defects, as required by Fifth
Circuit precedent. IT IS FURTHER ORDERED that her Motion for
Leave to File a Supplemental Memorandum is DENIED.
FURTHER ORDERED that, no later than July 25,
2017, plaintiff must file and notice for submission
a new motion to amend the complaint that both addresses all
pleading deficiencies identified below and incorporates any
other amendments sought by her dismissed Motion for Leave to
File a Second Supplemental and Amending Complaint.
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 to dismiss most of plaintiff's claims pursuant to
Rule 12(b)(6) for failure to state a claim upon which relief
can be granted. Under this rule, as clarified by the Supreme
“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)).
did not attach any documents to her original complaint.
Defendants attached to their motion plaintiff's formal
Charge of Discrimination, which she signed under penalty of
perjury on May 2, 2016, Defendant's Exh. A, Record Doc.
No. 5-2; and the EEOC's right to sue letter.
Defendant's Exh. B, Record Doc. No. 5-3. Plaintiff then
attached to her unopposed, first amended complaint the letter
that she sent to the EEOC on February 13, 2016, which she is
calling her “charge;” an unsigned, undated copy
of her formal Charge of Discrimination; and the EEOC's
right to sue letter.
On a Rule 12(b)(6) motion, a district court generally must
limit itself to the contents of the pleadings, including
attachments thereto. The court may also consider documents
attached to either a motion to dismiss or an opposition to
that motion when the documents are referred to in the
pleadings and are central to a plaintiff's claims.
Brand Coupon Network, L.L.C. v. Catalina Mktg.
Corp., 748 F.3d 631, 635 (5th Cir. 2014) (quotation and
footnotes omitted) (emphasis added).
letter to the EEOC, her unsigned charge and the right to sue
letter are thus part of the pleadings. In addition, her
original complaint referred to the formal Charge of
Discrimination, which is central to her Title VII claims. The
court can take judicial notice of this EEOC document
submitted by defendants with their motion, which is a public
record whose authenticity is not disputed. Papasan v.
Allain, 478 U.S. 265, 269 n.1 (1986); Cinel v.
Connick, 15 F.3d 1338, 1346 n.6 (5th Cir. 1994);
Davenport v. HansaWorld USA, Inc., 23
F.Supp.3d 679, 686 n.1 (S.D.Miss. 2014); Thomas v.
Lowe's Home Ctrs., Inc., No. 13-0779, 2014 WL
545862, at *2 n.5 (W.D. La. Feb. 10, 2014); Tucker v.
Waffle House, Inc., No. 12-2446, 2013 WL
1588067, at *2, *6 (E.D. La. Apr. 11, 2013) (citing Funk
v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011))
(additional citations omitted). The court therefore considers
the formal Charge of Discrimination without converting
defendants' motion to dismiss into one for summary
judgment. Carter v. Target Corp., 541 F. App'x
413, 416-17 (5th Cir. 2013).
The School System Lacks the Procedural Capacity to Be
contend that all claims against the School System must be
dismissed pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted because the School
System, which is a parish school district, lacks the
procedural capacity to be sued. Hunter responds that the
School System was her employer. However, even if that were
correct, employer status is not determinative of an
entity's capacity to be sued.
juridical person is an entity to which the law attributes
personality, such as a corporation or a partnership.”
La. Civ. Code art. 24. A few years ago, the much-respected
Judge Vance of this court held that the Jefferson Parish
School System is not a juridical entity capable of
[D]efendant contends that the Jefferson Parish School Board,
not the Public School System, is the proper defendant. Under
Louisiana law, a parish school board may create school
districts. La. Rev. Stat. 17:1371. Defendant contends that
the School System qualifies as a district, which plaintiff
does not dispute. A parish board serves as the governing body
of the school districts it creates and “has the power
to order, conduct and hold all elections in these districts
for purposes of voting special school taxes.” La. Rev.
Stat. 17:1373. Further, parish boards constitute bodies
corporate with the power to sue and be sued. La. Rev. Stat.
The Court finds that, under Louisiana law, the Jefferson
Parish School Board is the entity that governs the Jefferson
Parish Public School System. Parish school boards “have
much discretion to determine the number of schools; location
of the schools; number of teachers employed; teachers'
salaries; and adopt policies and procedures for the
superintendent to uphold.” Hamilton v. City of
Natchitoches, 903 So.2d 1247, 1250 (La. Ct. App. 2005),
writ denied, 922 So.2d 550 (La. 2006). With such
extensive management carried out by the Parish School Board,
there is no indication that the School System functions
independently or acts as a separate unit. See Williams v.
Recovery School Dist., 859 F.Supp.2d 848 (E.D. La. 2012)
(school district administered by state Department of
Education not a juridical person capable of being sued). . .
. [P]arish boards are entities established by the Louisiana
Constitution that are distinct from the districts they create
and serve. See Hamilton, 903 So.2d at 1250.
. . . . Accordingly, because the [School System] is not a
juridical person under Louisiana law that may be subject to