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Hunter v. Jefferson Parish Public School System

United States District Court, E.D. Louisiana

October 13, 2017

SHARON HUNTER
v.
JEFFERSON PARISH PUBLIC SCHOOL SYSTEM ET AL.

          ORDER AND REASONS ON MOTION

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

         This is an employment discrimination action by plaintiff Sharon Hunter against 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. In her second supplemental and amending complaint, Record Doc. No. 41, 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.; reprisal in violation of the Louisiana Whistleblower Statute, La. Rev. Stat. § 23:967; breach of contract under Louisiana law; and constitutional rights violations under 42 U.S.C. § 1983. She seeks compensatory damages. Complaint, Record Doc. No. 1; First Supplemental and Amending Complaint, Record Doc. No. 19; Second Supplemental and Amending Complaint, Record Doc. No. 41.

         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. 25.

         Plaintiff's claims against the School System; Title VII claims against the individual defendants in their individual and official capacities, if any; retaliation claims under the Louisiana Code of Governmental Ethics, La. Rev. Stat. § 42:1169; claims for punitive damages; and claims, if any, asserted in paragraphs 36 and 37 of plaintiff's original complaint were previously dismissed with prejudice. Order and Reasons on Motion, Record Doc. No. 29.

         Plaintiff received leave to amend her complaint a second time, Record Doc. Nos. 34, 40, 41, to reassert some claims in her original complaint and first supplemental and amending complaint; to assert new claims under Section1983 and for breach of contract; and to attach four documents: (1) attorney Harold Koretzky's investigative report (the “Koretzky Report”) regarding Hunter's grievance against defendant Floyd; (2) an unsigned, undated copy of the “Executive Assistant to the Board” job description (the “Job Description”); (3) the “Sexual Harassment or Other Forms of Harassment” section of the Board's policy manual (the “Harassment Policy”); and (4) the “Complaints (Grievances) and Appeals” section of the Board's policy manual (the “Grievances Policy”). Record Doc. No. 41.

         Defendants filed a second Rule 12(b)(6) Motion to Dismiss all of plaintiff's claims, Record Doc. No. 44, which is pending before me. Plaintiff filed a timely memorandum in opposition to defendant's motion. Record Doc. No. 48. Defendant was granted leave to file a reply. Record Doc. Nos. 50-52.

         Having considered the complaint as amended, the record, the written submissions of counsel, and the applicable law, IT IS ORDERED that defendant's Second Rule 12(b)(6) Motion to Dismiss is GRANTED IN PART and DENIED IN PART as follows.

         I. STANDARD OF REVIEW

         Defendants move to dismiss plaintiff's claims under Rule 12(b)(6) 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 Par., 456 F. App'x 336, 340 (5th Cir. 2011) (quotations omitted) (citing Iqbal, 556 U.S. at 695; Elsensohn v. St. Tammany Par. 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)).

         Hunter attached to her second supplemental and amending complaint the Koretzky Report regarding the grievance she filed against Floyd; the Job Description; the Harassment Policy; and the Grievances Policy. Record Doc. No. 41.

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). The Koretzky Report, the Job Description, and the Harassment and Grievances Policies are thus part of the pleadings.

         II. ANALYSIS

         A. Section 1983 Claims Against Defendants Floyd and Joseph

         Defendants contend that plaintiff's civil rights claims must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted and because the claims have prescribed. Defendants also assert an affirmative defense of qualified immunity, which is inapplicable at this stage of the proceedings.[1]

         As an initial matter, I find that plaintiff has asserted a Section 1983 claim against defendants Floyd and Joseph only, and not against the other individual defendants, as postulated by defendants at Record Doc. No. 44-2, p.1 n.2. Hunter clearly identifies only Floyd and Joseph in her second amended complaint in alleging that “Floyd and Joseph acted under color of state law . . . when they deprived Plaintiff of her federal rights, property interests and right to privacy and freedom from harassment, ” and that “Floyd and Joseph [committed] wrongful acts in violation of [Section] 1983.” Record Doc. No. 41 at ¶¶ 70, 72, 73 (emphasis added). Hunter reiterates in her opposition memorandum that “[her Section] 1983 claims are based on [] Floyd and Joseph's violation of [her] constitutional rights to be free from gender based harassment, invasions of privacy and retaliation resulting [from] her constructive termination from her employment.” Record Doc. No. 48 at p. 3 (emphasis added). The only mention of the other individual defendants in plaintiff's Section 1983 allegations is that they “voted not to receive[ ] the Koretzky report in violation of Plaintiff's right to file a complaint [and] have the complaint heard and reviewed.” Record Doc. No. 41 at ¶ 78. This allegation is wholly insufficient to state a Section 1983 claim against the other defendants, especially in light of the remainder of plaintiff's allegations focused exclusively on Floyd and Joseph.

         42 U.S.C. § 1983 states in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

         Section 1983 claims and Title VII claims may be asserted concurrently, as plaintiff has done in this case. “When . . . unlawful employment practices encroach, not only on rights created by Title VII, but also on rights that are independent of Title VII, Title VII ceases to be exclusive. At this point, § 1983 and Title VII overlap, providing supplemental remedies.” Flot v. Orleans Par. Sch. Bd., No. 96-361, 1998 WL 915864, at *6-7 (E.D. La. Dec. 29, 1998) (citing Southard v. Tex. Bd. of Crim. J., 114 F.3d 539, 549 (5th Cir. 1997) (quoting Johnston v. Harris Cty. Flood Control Dist., 869 F.2d 1565, 1576 (5th Cir. 1989))); see also Jones v. City of Port Arthur, No. 1:12-CV-287, 2013 WL 149706, at *3 (E.D. Tex. Jan. 11, 2013) (citing Evans v. City of Houston, 246 F.3d 344, 356 n.9 (5th Cir. 2001); Southard, 114 F.3d at 548-50; Johnston, 869 F.2d at 1573; Jackson v. City of Atlanta, 73 F.3d 60, 63 (5th Cir. 1996)) (“As correctly concluded by the magistrate judge, Title VII does not provide the exclusive remedy for discrimination claims against a government employer.”). Specifically, “[a]ssertions of sex discrimination . . . under § 1983 are not preempted by Title VII.” Southard, 114 F.3d at 550.

         Hunter asserts that Floyd and Joseph “deprived plaintiff of her federal constitutional rights by violating [them] or allowing her to be harassed and discriminated against, and having her privacy and her safety and security violated.” Record Doc. No. 41 at ¶ 70. Hunter's allegations that her right to privacy was violated includes that defendants demanded her personal phone, email and text messages. Id. at ¶ 79. In that regard, Hunter sufficiently alleges federal law violations by Joseph and Floyd in their individual capacities that may be redressed pursuant to both Section 1983 and Title VII.

         As to defendant's prescription argument, there is no federal statute of limitations for Section 1983 actions. Instead, state tort law defines the “contours and prerequisites of a § 1983 claim.” Manuel v. City of Joliet, 137 S.Ct. 911, 920 (2017) (citing Carey v. Piphus, 435 U.S. 247, 257-258 (1978)). “For 1983 cases brought in Louisiana federal courts, the appropriate statute of limitations is one year.” Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 604 (5th Cir. 1988); La. Civ. Code art. 3536. “[A]ccrual of a section 1983 claim, which determines when the statute of limitations begins to run, is governed by federal common law. . . . [and] [t]he continuing violation doctrine is a federal common law doctrine governing accrual.” Heath v. Bd. of Supervisors, 850 F.3d 731, 737 (5th Cir. 2017). “Under federal law, a cause of action accrues the moment the plaintiff knows or has reason to know of the injury.” Smith v. Reg'l Transit Auth., 827 F.3d 412, 421 (5th Cir. 2016) (citing Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993)).

         Hunter terminated her employment relationship with the Board in September 2015. She asserts that Joseph and Floyd continued to violate her constitutional rights after she resigned by demanding, in a letter dated February 26, 2016, that she deliver personal phone, email and text records. Record Doc. No. 41 at ¶ 79. She alleges that those violations were continuous and continued after March 15, 2016, when Joseph's administrative assistant innocuously asked plaintiff if she was going to respond to Joseph's document request. Id. at ¶ 81. Defendants rely on the termination of Hunter's employment on September 15, 2015, for their prescription argument. Record Doc. No. 44-2 at p. 6. Hunter does not specify the date when she was contacted by Joseph's assistant, but says simply that it was after March 15, 2016 (less than one year before she filed her complaint on March 9, 2017).

         Hunter and defendants have not briefed whether actionable employment discrimination may occur under Section 1983 after a public employee has left her employment or whether such acts might constitute a continuing violation that would suspend the running of prescription. The federal Fifth Circuit recently found that claims under Title VII or Section 1983 alleging discrete acts of discrimination are not subject to the continuing violation doctrine, but ongoing harassment/hostile work environment claims are. Heath, 850 F.3d at 737 (emphasis added). The Heath decision applies, explains the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and distinguishes between “discrete acts that form the basis of traditional discrimination claims” and ongoing harassment/hostile work environment claims that are continuous in nature because they involve repeated conduct. Heath, 850 F.3d at 737. A “hostile environment claim” may be ongoing and not discrete in that it “is based on the cumulative effect of a thousand cuts, rather than on any particular action taken by the defendants.” Id. (quoting O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006)).

         The only alleged act of harassment and retaliation that occurred within the one-year prescriptive period before plaintiff filed suit was the completely innocuous request from Joseph's administrative assistant, which allegedly occurred sometime after March 15, 2016, inquiring whether Hunter was going to respond to Joseph's prior request for documents. As Heath makes clear, discrete acts do not ...


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