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Richard v. St. Tammany Parish Sheriff Department

United States District Court, E.D. Louisiana

May 3, 2018

MARK RICHARD
v.
ST. TAMMANY PARISH SHERIFF'S DEPARTMENT

          SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court is the defendant's motion to dismiss for failure to state a claim. For the following reasons, the motion to dismiss is GRANTED as to Count III, pertaining to the ADA, and DENIED as to Counts I and II, pertaining to sexual harassment under Title VII, and Counts IV and V, pertaining to the ADEA.

         Background

         Mark Richard graduated from the St. Tammany Parish Sheriff's Office Police Academy on August 21, 2013 and shortly thereafter began working at the Sheriff's Office as a deputy. Beginning in fall 2015, his coworker, Deputy Patrick Penton, repeatedly made derogatory comments concerning Richard's age.[1] Richard was forty-nine years old. Richard claims that Penton would call him an “old man, ” ask if he could “still get it up, ” and made other similar comments in front of their colleagues and in public. Richard asked Penton to stop making the comments, and then informed his superior, Corporal Tony Holloway, but Penton did not let up. On February 3, 2016, shortly after making the complaint, two of Richard's superiors, Lieutenant Wayne Wicker and Corporal Tony Holloway notified Richard that they would suspend his ticket writing privileges until March 1, 2016. They informed Richard that they disagreed with the decision-Richard was the best field deputy on their staff-but that they were under orders from Chief Fred Oswald. Richard had the highest number of warrant arrests in his district, and had received the St. Tammany Parish Sheriff Officer's Fitness Award twice.

         On March 15, 2016, Richard asked Penton to join him for dinner. There, Richard expressed that he found the derogatory age-based comments embarrassing and unprofessional and asked Penton to stop making them, especially when they were on calls in front of civilians. Penton continued to taunt Richard at dinner, asking “What are you going to do? Report me?” When Richard answered in the affirmative, Penton dismissed the threat, stating that he was close friends with their superior, Corporal Holloway.

         Three hours later, Richard was patrolling on Million Dollar Road and observed a young man walking alone in the street. He pulled over, turned on his lights, and spoke with the young man. As he was obtaining his personal information, he heard a vehicle screech and turn onto the road. The vehicle was speeding towards Richard and the young man, despite the 15 mph speed limit. The vehicle momentarily slowed, and when it was about 20-30 yards, it accelerated towards Richard, and skidded right past him. Richard alleges that the vehicle was clearly attempting to run him over. He immediately contacted dispatch and notified them of what had occurred.

         The driver braked and exited from the vehicle, and stated that she did not see him. Richard then recognized her as Michaela Rodasta. He had several contacts with her over the past few years, including enforcing a court order to take her three-year-old daughter from her custody after her involvement in drug activity. Within minutes, Deputy Penton and Corporal Holloway arrived. They spoke with Rodasta, who claimed that Richard's lights were not illuminated, and dismissed her from the scene.

         Three days later, Lieutenant Wayne Wicker, Richard's immediate rank, called him into his office to speak about the incident at Million Dollar Road. Although Richard vehemently claimed at the scene that he had his lights on, Deputy Penton and Corporal Holloway reported that they believed Rodasta's account that his lights were off. Richard gave Lieutenant Wicker a written statement of the incident and of the disagreement he had with Deputy Penton earlier that evening. He also stated that he wanted to make a complaint about the age harassment. Lieutenant Wicker assured him that he would make a report and that it would be considered. To Richard's knowledge, no report was ever made.

         Two weeks later, on March 31, 2016, Richard slammed his hand in a car door while on a call for duty, causing an open break of his right pinky finger. He was treated at the St. Tammany Hospital emergency room and sent home on Workman's Compensation leave. Richard was out of work for eleven weeks; his injury caused nerve damage and required physical therapy. While on leave, he was contacted by Human Resources on April 5, 2016. They informed him that due to the lights incident on Million Dollar Road on March 15th, he was demoted from road patrol and assigned to the Radio Room as a dispatcher. His annual pay would be reduced by $10, 000.

         He returned to work on June 22, 2016 with a doctor's release that read “light duty, but no typing at all.” He reported to the Radio Room for his 12-hour shifts where he typed continuously, which aggravated his injury and caused shooting pain and headaches. Furthermore, he reported sexual harassment from his Radio Room co-workers. He worked with eight females and one young male. According to the complaint, the female dispatchers used vulgar language on every shift, including Richard's immediate rank, Sergeant Amy Popper and Corporal Brittany Harbin. They discussed the “penis sizes they preferred, oral sex techniques, and positions in which they liked to have sex.” They also “sen[t] a ruler around the room and each female dispatcher held the ruler and indicated the length of the penis size they preferred.” On at least four occasions, Sergeant Poppler performed "what she called her 'sexy dance' . . . where she squeezed her breast up and wiggled her butt across the office.”

         Richard complained of this behavior, calling it offensive and unprofessional. After about three weeks in the Radio Room, Richard was called into Lieutenant Toups' office with Sergeant Popper. They stated that it was apparent Richard was struggling in the Radio Room, and wondered why he did not participate in conversations. Richard explained that his hand still hurt from the injury and that he was experiencing shooting pain from constantly typing. Further, he stated that he carefully avoided the conversations because his participation could easily be construed as sexually offensive, and that he wanted to make a complaint of the harassment. Sergeant Popper replied that they were not used to having men in the Radio Room, and that she would talk with the others about his complaint.

         When Richard returned to his desk, he was immediately assigned to Corporal Harbin as a new unscheduled trainer. Corporal Harbin instructed him to take a typing test, which he failed. He typed 22 words per minute, and a passing score is 25 words. Harbin continued to administer unannounced written exams about three times a week. For the three weeks following his meeting with Lieutenant Toups and Sergeant Popper nobody would speak to him, and the workplace environment turned increasingly hostile. On August 9, 2016 he was called to human resources. He was informed that he would be terminated “due to [his] struggling in the Radio Room” and his slow typing pace. Richard reminded the Human Resources Sergeant that he was still recovering from his hand injury, [2] but was told that Chief Oswald had made the decision with input from Lieutenant Toups, Sergeant Popper, and Corporal Harbin. His last day of employment at St. Tammany Parish Sheriff's Office was August 9, 2016.

         Richard submitted an intake questionnaire with the Equal Employment Opportunity Commission on August 24, 2016 and a formal charge of discrimination on June 20, 2017. The EEOC issued a Dismissal and Notice of Right to Sue letter on July 5, 2017. He sued St. Tammany Parish Sheriff's Department on September 27, 2017 in this Court. St. Tammany Parish Sheriff Randy Smith moved to dismiss the complaint on December 4, 2017. Sheriff Smith moved to dismiss the complaint because the sheriff department is not an entity capable of being sued. Richard ultimately submitted an amended complaint on February 6, 2018, and named Sheriff Smith as the sole defendant. In light of the amended complaint, the Court dismissed Smith's motion without prejudice, and Sheriff Smith moved to dismiss the amended complaint on February 26, 2018.[3]

         I.

         In considering a Rule 12(b)(6) motion, the Court “accept[s] all well-pleaded facts as true and view[s] all facts in the light most favorable to the plaintiff.” See Thompson v. City of Waco, Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012)(en banc)). But in deciding whether dismissal is warranted, the Court will not accept conclusory allegations in the complaint as true. Id. at 502-03 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         To survive dismissal, “‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation marks omitted). “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).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.”). This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 678 (internal quotations omitted) (citing T ...


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