United States District Court, M.D. Louisiana
BONNIE M. O'DANIEL
INDUSTRIAL SERVICE SOLUTIONS, ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion to Dismiss with Prejudice
(R. Doc. 23) filed on 28, 2017. The motion is opposed. (R.
Doc. 30). Defendants filed a Reply. (R. Doc. 31). Plaintiff
filed a Sur-Reply. (R. Doc. 38).
before the Court is Plaintiff's Motion for Leave to File
Plaintiff's Second Amended Complaint (R. Doc. 29) filed
on October 3, 2017. The motion is opposed. (R. Doc. 32).
the foregoing motions concern related issues, the Court
considers them together.
March 27, 2017, Bonnie O'Daniel (“Plaintiff”)
commenced this action pro se, alleging, among other
things, that she was improperly terminated from her
employment. (R. Doc. 1). Plaintiff named as defendants
Industrial Service Solutions (“ISS”),
Plant-N-Power, Services, Inc. (“PNP”), Cindy
Huber, and Tex Simoneaux, Jr. (collectively,
August 14, 2017, Plaintiff, still proceeding pro se,
filed an Amended Complaint. (R. Doc. 18, “Am.
Compl.”). In Paragraph 1 of the Amended Complaint,
Plaintiff asserts that she seeks recovery under various
federal and state statutes for (1) discrimination based on
sex, (2) reverse discrimination based on retaliation, (3)
discrimination based on gender, (4) defamation, (5) disparate
treatment, and (6) intentional infliction of severe emotional
distress. (Am. Compl. ¶ 1). According to Plaintiff, her
employment with PNP, whose parent company is ISS, was
terminated on June 21, 2016 by Mr. Simoneaux. (Am. Compl.
¶ 12). Plaintiff alleges that her employment was
terminated because she posted on her Facebook page a
photograph of a man wearing a dress at Target store and
commented on his ability to use the women's restroom
and/or dressing room with her daughters. (Am. Compl. ¶
Plaintiff alleges that Ms. Huber, the president of PNP and
member of the LGBT community, took offense at the posting and
suggested that she be fired immediately. (Am. Compl.
¶¶ 17, 23).
August 28, 2017, Defendants filed their motion to dismiss.
(R. Doc. 23). Defendants seek dismissal of the claims raised
in the Amended Complaint on the following bases: (1)
Plaintiff's discrimination claims fail because individual
defendants are not proper parties under federal or state law,
Plaintiff failed to administratively exhaust her
discrimination claims under federal and state law, and
Plaintiff failed to allege a discriminatory act taken against
her due to her sex or gender; (2) Plaintiff's retaliation
claim fails because individual defendants are not proper
parties under federal or state law and Plaintiff failed to
plead any protected activity necessary under Title VII; (3)
Plaintiff's defamation claim fails because Plaintiff has
not alleged any non-privileged false and defamatory statement
made about her by any Defendant; and (4) Plaintiff's
intentional infliction of emotional distress claim fails
because the allegations do not rise to the necessary level to
sustain the claim. (R. Doc. 23 at 1-2, R. Doc. 23-1).
Defendants further submit that any further amendment would be
futile and dismissal should be entered with prejudice. (R.
Doc. 23 at 2, R. Doc. 23-1 at 19).
September 15, 2017, counsel enrolled on behalf of Plaintiff.
(R. Docs. 25, 26).
October 3, 2017, Plaintiff filed her motion to amend (R. Doc.
29). Also on October 3, 2017, Plaintiff filed her Opposition
to the Motion to Dismiss. (R. Doc. 30).
proposed Second Amended Complaint seeks to amend Paragraph 1
of the Amended Complaint by asserting the following three
claims in place of the original six claims:
(1) “The Defendants retaliated against Plaintiff by
terminating her for exercising her constitutionally protected
right to freedom of expression, in violation of La. Const.
Art. 1 § 7”;
(2) “The Defendants conspired with others to invade
Plaintiff's constitutional right to privacy, in violation
of La. Const. Art. 1 § 7”; and (3) “The
Defendants retaliated against Plaintiff by terminating her in
part due to her opposition to the Defendants' practice of
sex discrimination (i.e., informing Defendants that
she intended to file a formal complaint of sex
discrimination), in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-3(a).” (R.
Doc. 29-2 at 1-2). Plaintiff also seeks to allege various
additional factual allegations and to modify her prayer for
relief. (R. Doc. 29-2 at 2-9).
Opposition to the Motion to Dismiss is likewise limited to
addressing the viability of these three claims. (R. Doc. 30).
light of the foregoing modification of the claims in
Paragraph 1 of the Amended Complaint, Defendants argue in
support of their motion to dismiss that Plaintiff has
abandoned her discrimination, defamation, disparate
treatment, and intentional infliction of emotional distress
claims as asserted in the Amended Complaint. (R. Doc. 31 at
1). Defendants also argue that Plaintiff's proposed
claims for right to privacy, right to free expression, and
retaliation are futile. (R. Doc. 32; see R. Doc. 31
at 2-5). In opposition to Defendants' motion to dismiss,
Plaintiff argues that her proposed claims for right to
privacy, right to free expression, and retaliation are
viable, but does not raise any argument in support of a
finding that her original six claims survive dismissal under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. (R.
Doc. 30). Plaintiff subsequently withdrew her proposed claim
for right to privacy, but maintains that her proposed claims
for right to free expression and retaliation are viable. (R.
the foregoing, there is no dispute that the Plaintiff is now
only seeking to allege a freedom of expression claim under
Article 1, Section 7, of the Louisiana Constitution, and a
retaliation claim under Title VII. Plaintiff contends that
she states a valid claim for retaliation in violation of her
right to freedom of expression because the Louisiana
Constitution provides a remedy for retaliation to private
employees, and her Facebook post touched upon a matter of
public concern. (R. Doc. 30 at 5-7). Plaintiff contends that
she states a valid claim for retaliation under Title VII
because she engaged in “protected activity” by
asserting that she would file a formal complaint, and later
filed a charge with the EEOC, regarding Defendants'
unlawful practice of discrimination, and Defendant engaged in
an “adverse employment action” by terminating her
employment. (R. Doc. 30 at 7-8).
argue that Plaintiff's freedom of expression claim is
futile because Defendants are private actors, not state
actors or otherwise acting under the color of state law. (R.
Doc. 32 at 4-6; R. Doc. 31 at 2-4). Defendants argue that
Plaintiff's Title VII retaliation claim is futile because
Title VII does not protect complaints concerning harassment
based upon a non-protected characteristic such as sexual
orientation. (R. Doc. 32 at 6-10; R. Doc. 31 at 4-5).
Finally, Defendants contend that Plaintiff has failed ...