United States District Court, E.D. Louisiana
ORDER & REASONS
the Court is Defendant's motion to dismiss, R. Doc. 18.
Plaintiff responds in opposition, R. Doc. 19. Having
considered the parties' briefs and the applicable law,
the Court issues this Order & Reasons.
February 2015 to January 2017, Plaintiff Jennifer Trigueros
was employed by Defendants New Orleans City
(“City”) and Coroner Jeffrey Rouse
(“Rouse”) as a death investigator. R. Doc. 1 at
2. The position of death investigator was classified as
exempt from overtime and Plaintiff was not paid overtime even
though she was often required to work more than 40 hours per
week. R. Doc. 1 at 3. Plaintiff alleges that Defendants
misclassified her job position and that she was entitled to
overtime wages. R. Doc. 1 at 3. Plaintiff further alleges
that she was terminated from her position because she
complained about the lack of overtime wages on Facebook. R.
Doc. 1 at 3-4. Plaintiff brings claims for overtime wages and
damages due to retaliatory termination under the FLSA. R.
Doc. 1 at 4. Plaintiff additionally brings claims for
overtime and vacation pay under the LWPA. R. Doc. 1 at 5.
New Orleans City answers the complaint generally denying
Plaintiff's allegations. R. Doc. 6. City also asserts the
following defenses: failure to state a claim, prescription,
and failure to mitigate. R. Doc. 6 at 1. Defendants filed a
12(b)(6) motion on December 22, 2017. R. Doc. 5. The Court
denied the motion and allowed Plaintiff to amend her
complaint to add sufficient facts. R. Doc. 12. Plaintiff
amended her complaint in April 2018. R. Doc. 17. Defendants
have renewed their motion to dismiss. R. Doc. 18.
Rouse has filed a motion to dismiss for failure to state a
claim. R. Doc. 18. First, Defendant argues that because
Plaintiff has alleged claims under the FLSA the LWPA claims
are barred. R. Doc. 18-1 at 1, 4. Defendant argues that
claims under the LWPA are preempted by the FLSA and should be
dismissed. R. Doc. 18-1 at 5.
Defendant argues that Plaintiff has not alleged a protected
activity under the FLSA. R. Doc. 18 at 1. Defendant argues
that posting to Facebook is not a protected activity because
it does not qualify as “filing a complaint” under
the FLSA. R. Doc. 18 at 6. Defendant alleges that Plaintiff
did not file a formal complaint with her employer and that
her Facebook post does not qualify as an informal complaint.
R. Doc. 18-1 at 6-7. Defendant notes that Plaintiff's
Facebook post was not directed at her employer and did not
allege any unlawful behavior. R. Doc. 18-1 at 7-8.
Additionally, Facebook is not a recognized forum for
protected activity under the FLSA. R. Doc. 18-1 at 7.
Therefore, Plaintiff's FLSA claims should be dismissed
because she cannot sustain a claim for retaliation. R. Doc.
18-1 at 8.
Defendant argues that he is entitled to qualified immunity
and state statutory immunity. R. Doc. 18 at 2, 8. Defendant
argues that he is entitled to qualified immunity because it
is not, and was not at the time Plaintiff was terminated,
clearly established that posting to social media is a
protected activity under the FLSA. R. Doc. 18-1 at 9.
Defendant further argues that he is entitled to state
statutory immunity because retention of personnel is a
discretionary choice of the Defendant as coroner. R. Doc.
18-1 at 11.
responds in opposition. R. Doc. 19. First, Plaintiff argues
that her state law claims should not be dismissed as
preempted because she is permitted to plead alternative
theories. R. Doc. 19 at 3. Second, Plaintiff argues that her
FLSA retaliation claim should not be dismissed because at the
motion to dismiss state the court must assume her allegations
that she engaged in protected activity to be true. R. Doc. 19
at 3. Finally, Plaintiff argues that Defendant is not
entitled to qualified immunity because there is no Fifth
Circuit precedent establishing qualified immunity for FLSA
claims at the pleading stage. R. Doc. 19 at 3.
LAW & ANALYSIS
Motion to Dismiss Standard
Federal Rules of Civil Procedure permit a defendant to seek a
dismissal of a complaint based on the “failure to state
a claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A complaint should not be dismissed for failure to
state a claim “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). Generally, when
evaluating a motion to dismiss pursuant to Rule 12(b)(6), the
court should not look past the pleadings.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The district court must construe facts in the light
most favorable to the nonmoving party and must accept as true
all factual allegations contained in the complaint.
Ashcroft, 556 U.S. at 678. “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.”