United States District Court, M.D. Louisiana
ALICIA B. BAILEY
OFFICE OF UNEMPLOYMENT INSURANCE ADMINISTRATION, ET AL.
RULING AND ORDER I. PLAINTIFF'S ALLEGATIONS AND
THE MOTION TO DISMISS
JOHN W. deGRAVELLES JUDGE
case, Plaintiff Alicia B. Bailey, proceeding pro se,
alleges age discrimination, disability discrimination and
retaliation by the Office of Unemployment Insurance
Administration of the Louisiana Workforce Commission (the
“Office”) and its former director, Dayne Freeman,
in her official and individual capacities (collectively,
“Defendants”). (Doc. 1 at 1). Plaintiff expressly
states that her “federal claim[s]” are brought
under Title VII of the Civil Rights Act of 1964 and 42 U.S.C.
sections 1981, 1983, and 1988,  (Doc. 1 at 3), although the
Complaint also appears to state that Plaintiff was protected
under the Family Medical Leave Act of 1993
(“FMLA”), the Americans With Disabilities Act of
1990 (“ADA”), and the Age Discrimination in
Employment Act of 1967 (“ADEA”). (Id. at
1-3, 7-8). The August 16, 2017 Complaint states that
Plaintiff was constructively discharged on August 1, 2014,
and she received an EEOC “right-to-sue” letter on
or about May 16, 2017. (Id. at 3, 7).
move to dismiss the Complaint pursuant to Federal Rules of
Civil Procedure (“Rules”) 12(b)(1) and 12(b)(6).
(“Motion, ” Doc. 9). Defendants characterize the
Complaint as alleging violations of Sections 1981, 1983, and
1988, and Title VII of the Civil Rights Act of 1964. (Doc.
9-1 at 1). Defendants argue that: (1) the Office and Freeman
in her official capacity are immune from suits from money
damages “as to claims for the deprivation of civil
rights under color of state law”; (2) Plaintiff did not
file the Complaint within 90 days of receiving the
right-to-sue letter as is required to properly exhaust her
remedies under Title VII; and (3) Plaintiff failed to assert
her claims under Sections 1981, 1983, and 1988 within the
one-year prescriptive period provided by Louisiana Civil Code
article 3492. (Id. at 4, 8-10).
has filed a two-page Opposition addressing the merits of her
Complaint and alleging that Louisiana law also forbids
employment discrimination. (Doc. 25 at 1-2). Defendants have
filed a Reply reiterating the arguments in their Motion and
stating that Plaintiff's Opposition fails to address the
issues raised in the Motion. (Doc. 30 at 1-3).
Rule 12(b)(1) Standard
the standard for Rule 12(b)(1) motions, the Fifth Circuit has
Motions filed under Rule 12(b)(1) . . . allow a party to
challenge the subject matter jurisdiction of the district
court to hear a case. Fed.R.Civ.P. 12(b)(1). 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.
Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996).
The burden of proof for a Rule 12(b)(1) motion to dismiss is
on the party asserting jurisdiction. McDaniel v. United
States, 899 F.Supp. 305, 307 (E.D. Tex. 1995).
Accordingly, the plaintiff constantly bears the burden of
proof that jurisdiction does in fact exist. Menchaca v.
Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
When a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the court should consider the Rule
12(b)(1) jurisdictional attack before addressing any attack
on the merits. Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977) (per curiam). . . .
In examining a Rule 12(b)(1) motion, the district court is
empowered to consider matters of fact which may be in
dispute. Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir. 1981). Ultimately, a motion to dismiss for lack of
subject matter jurisdiction should be granted only if it
appears certain that the plaintiff cannot prove any set of
facts in support of his claim that would entitle plaintiff to
relief. Home Builders Ass'n of Miss., Inc. v. City of
Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998).
Ramming v. United States, 281 F.3d 158, 161 (5th
Rule 12(b)(6) Standard
Johnson v. City of Shelby, Miss., __U.S. __, 135
S.Ct. 346, 190 L.Ed.2d 309 (2014), the Supreme Court
explained that “[f]ederal pleading rules call for a
‘short and plain statement of the claim showing that
the pleader is entitled to relief, ' Fed.R.Civ.P.
8(a)(2); they do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted.” 135 S.Ct. at 346-47 (citation omitted).
Rule 8(a), the Fifth Circuit has explained:
The complaint (1) on its face (2) must contain enough factual
matter (taken as true) (3) to raise a reasonable hope or
expectation (4) that discovery will reveal relevant evidence
of each element of a claim. “Asking for [such]
plausible grounds to infer [the element of a claim] does
not impose a probability requirement at the pleading
stage; it simply calls for enough facts to raise a ...