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Notariano v. Tangipahoa Parish School Board

United States District Court, E.D. Louisiana

July 17, 2017


         SECTION: “H” (2)



         Before the Court is Defendants' Motion to Dismiss or, Alternatively, Motion for Summary Judgment (Doc. 8). For the following reasons, this Motion is GRANTED IN PART.


         In this action, Plaintiff Kim Notariano, a white female over the age of 40, seeks vindication for alleged systemic violations of her civil rights stemming from the employment practices of the Tangipahoa Parish School Board (“TPSB”) and its agents, Defendants Ossie Mark Kolwe, Tomas Bellavia, and Walter Daniels (the “Individual Defendants”). Plaintiff alleges that she has been unlawfully denied promotions in 2004, 2010, 2014, and 2016 based in whole or in part upon her sex, age, and race, and also as retaliation for complaining of the same. She also alleges that she has been the victim of a conspiracy to circumvent this Court's orders in Joyce Marie Moore, et al. v. Tangipahoa Parish School Board¸[1] the still-active desegregation case regarding TPSB. She brings claims of sex discrimination, retaliation, age discrimination, and race discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §§ 1981, 1981a, 1983, and 1988. She also alleges that the actions of Defendants violated the due process protections of the 14th Amendment. Finally, she brings state law causes of action for intentional infliction of emotional distress and under the Louisiana Employment Discrimination Law. Defendants respond with the instant Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. Plaintiff opposes.


         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.”[2] A claim is “plausible on its face” when the pleaded facts allow the court to “[d]raw the reasonable inference that the defendant is liable for the misconduct alleged.”[3]A court must accept the complaint's factual allegations as true and must “draw all reasonable inferences in the plaintiffs favor.”[4] The Court need not, however, accept as true legal conclusions couched as factual allegations.[5]

         To be legally sufficient, a complaint must establish more than a “sheer possibility” that the plaintiffs claims are true.[6] “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'“ will not suffice.[7] Rather, the complaint must contain enough factual allegations to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiffs' claim.[8]


         At the outset, the Court notes that Defendants ask the Court to alternatively consider this Motion under the Rule 56 Summary Judgment standard. The Court finds that a motion for summary judgment is premature. Discovery has not yet begun, and Plaintiff has submitted evidence indicating that genuine issues of material fact abound as to the parties' actions and motivations. Accordingly, the Court will consider this Motion under the Rule 12(b)(6) standard. Defendants may re-urge a motion for summary judgment at a more appropriate time.

         In the instant Motion, Defendants aver (1) that many of Plaintiff s claims are prescribed, (2) that Plaintiff has failed to state a claim for discrimination under federal or state law, (3) that Plaintiff has failed to state a claim for violations of due process, and (4) that all claims against Defendants Mark Kolwe, Tomas Bellavia, and Walter Daniels (the “Individual Defendants”) in their individual capacities should be dismissed on the basis of qualified immunity. The Court will address these arguments in turn.

         I. Prescription

         Defendants first aver that Plaintiffs claims arising out of her denied promotions in 2004, 2010, and 2014 are prescribed, as the alleged discrimination occurred more than 1 year prior to this suit.[9] Plaintiff responds in opposition, arguing that the complained-of discrimination constitutes a “continuing violation” such that this Court may impose liability for actions occurring outside the limitation period. The continuing violation theory typically applies to hostile work environment claims.[10] This doctrine is equally applicable to Title VII claims and claims brought under § 1983. “Unlike in a case alleging discrete violations, a hostile environment plaintiff is not limited to filing suit on events that fall within this statutory time period because her claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice.”[11] “A continuing violation involves repeated conduct, and cannot be said to occur on any particular day. It instead occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.”[12] There are several limits on the applicability of the continuing violations doctrine, including

(1) the plaintiff must demonstrate that the separate acts are related; (2) the violation must be continuing; intervening action by the employer, among other things, will sever the acts that preceded it from those subsequent to it; and (3) the doctrine may be tempered by the court's equitable powers, which must be exercised to “honor Title VII's remedial purpose without negating the particular purpose of the filing requirement.”[13]

         Unlike a hostile work environment claim, Plaintiff alleges discrete instances in which she was denied promotions. First, she avers that when she applied for two mid-level supervisory positions in 2004, she was denied the position and told that “the jobs were for men.” Second, she alleges that when she applied for the transportation director position in 2010, she was again denied the position and told that the board “had to hire a black.” Third, she alleges that in 2014 she applied for a mid-level transportation coordinator position and was passed over in favor of a less-qualified, younger white female. Finally, she alleges that in 2016 she applied for the position of transportation director but was once again passed over, this time in favor of a younger black male. “The continuing violation doctrine does not apply when ‘the relevant discriminatory actions alleged in the complaint [are] the sort[s] of discrete and salient event[s] that should put an employee on notice that a cause of action has accrued.'”[14] Each of Plaintiffs denied promotions are just such discrete and salient events. Indeed, Plaintiff contemporaneously complained of discrimination each time. Furthermore, these claims do not allege the same type of discrimination, as some allege racial discrimination while others allege sex discrimination. Accordingly, the continuing violation doctrine does not apply, and Plaintiffs claims that arose outside of the one-year limitation-or before December 30, 2015-are time barred. This includes the aforementioned claims arising out of events in 2004, 2010, and 2014. Only Plaintiffs claims arising out of the denial of promotion in 2016 survive.

         II. Whether Plaintiff has Stated a Claim for Discrimination

         Defendants next argue that Plaintiff cannot state a claim for discrimination under federal or state law because such claims are precluded by Judge Lemelle's orders in Moore. This argument belies common sense. This Court cannot, by its orders, obviate the protections provided by federal and state discrimination laws. Indeed, it is readily apparent that Judge Lemelle did not intend to do so, as he expressly noted that the school board may not simply deny Plaintiff a promotion because she is white and another applicant is black.[15]

         To allege a prima facie case for discrimination, Plaintiff must allege that (1) she was not promoted, (2) she was qualified for the position she sought, (3) she fell within a protected class at the time of the failure to promote, and (4) the defendant either gave the promotion to someone outside of that protected class or otherwise failed to promote the plaintiff because of her membership in that class.[16] With regard to her 2016 application for transportation director, she has alleged that she did not receive the promotion, that she was the most qualified for the position she sought, that she fell within a protected class as a white woman, and that the job went to a black male, an individual outside the protected class. At this early stage of the litigation, this is sufficient to state a claim for race and sex discrimination.

         III. Whether Plaintiff has Stated a Claim for Due Process Violations

         Defendants next aver that the due process claims against them must be dismissed because Plaintiff has not identified a protectable property interest. To prevail on a due process claim, a Plaintiff must first establish that she has a property right to which due process protections apply.[17] “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”[18] Property interests are not created by the constitution, “[r]ather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”[19]

         Plaintiff avers that she was denied her right to due process when, after being denied a promotion, she was not permitted to proceed with the grievance procedure provided for in the TPSB employment manual. The Court notes that she does not specifically identify a property right in her complaint. Nevertheless, in her briefing, she alleges (1) that she had a liberty interest in her reputation that was impugned by her failure to receive the job in question and (2) ...

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