United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
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
STANDARD OF REVIEW
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))).
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 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)).
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
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.
Section 1983 Claims Against Defendants Floyd and
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.
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.
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 . . . .
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.
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.
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)).
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).
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)).
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