United States District Court, E.D. Louisiana
ORDER AND REASONS
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
the Court is “Defendants' Motion to Dismiss
Pursuant to Fed.R.Civ.P. 12(b)(6)” filed by Defendants,
Bruce Boyea, DeAnn Gruber and Beth Scalco. (Rec. doc. 17).
The motion is opposed by Plaintiff, Jereld Cammack. (Rec.
doc. 23). The Court held oral argument on the motion (rec.
doc. 27) and, after due consideration of the pleadings, the
law and the argument of counsel, rules as follows.
is an HIV-positive, gay man who was formerly employed by the
Louisiana Department of Health (“LDH”). He
initiated this action by filing a “Petition for
Damages” on April 5, 2018. (Rec doc. 1). In that
“Petition, ” Plaintiff sued LDH for damages (both
compensatory and punitive), injunctive relief and
attorneys' fees under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101, et
seq.; Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e, et seq.; and Louisiana
state law. (Id.).
the ADA, Plaintiff claimed that LDH discriminated against him
because of his HIV-positive status. (Id.). Under
Title VII, Plaintiff claimed LDH discriminated against him
based on his sexual orientation and retaliated against him
when he complained to human resources that his manager openly
berated him and negatively implicated his sexual orientation.
(Id.). He also made a claim for violation of the
Louisiana Employment Discrimination Law, La. Rev. Stat.
23:301 et seq., alleging that he was terminated due
to his HIV-positive status. (Id.).
16, 2018, the State filed a motion to dismiss Plaintiff's
claims, arguing that, because the LDH is, as a state agency,
the “alter ego” of the State of Louisiana, it was
immune to Plaintiff's ADA claim under the Eleventh
Amendment to the United States Constitution. (Rec. doc. 4).
The State also argued that any claims brought under state law
are also barred under the Eleventh Amendment. (Id.).
Finally, the State argued that the Plaintiff failed to state
a cause of action under Title VII because, under longstanding
Fifth Circuit precedent, “sexual orientation is not a
protected characteristic as defined by Title VII.”
response to Defendant's motion to dismiss, Plaintiff
filed his first amended “Petition, ” making a
number of notable changes to his case. He named the current
individual Defendants for the first time while simultaneously
removing as a Defendant the LDH - the state agency
that actually employed him. (Rec. doc. 8). Plaintiff also
removed all claims for damages along with his state-law
claims, praying only for injunctive relief and attorneys'
fees and costs, and praying for a jury trial. (Id.).
Shortly thereafter, the parties consented to have the case
tried before the undersigned pursuant to 28 U.S.C. §
636(c). (Rec. doc. 21).
parties appeared before this Court for oral argument on the
then-pending motion to dismiss. (Rec. doc. 12). At the
hearing, the Court dismissed the motion as moot, having been
brought by an entity - the State Department of Health - that
was no longer a party to the case. (Id.). Shortly
thereafter, Plaintiff filed yet another amended complaint,
excising his ADA claim and proceeding solely under Title VII
for injunctive relief against the individual Defendants.
(Rec. doc. 13). The pending motion seeks dismissal of that
The Parties' Positions
Defendants make numerous arguments as to why the second
amended complaint should be dismissed in its entirety. First,
Defendants argue that Plaintiff fails to state a claim under
Title VII because binding Fifth Circuit precedent holds that
homosexuality is not a protected class under Title VII.
Similarly, they argue that Plaintiff fails to state a cause
of action for retaliation under Title VII because, even if he
reported to human resources that his supervisor mistreated
him because of his sexual orientation, that is not considered
a protected activity in the Fifth Circuit.
also argue that Plaintiff's complaint should be dismissed
because, with the removal of his former employer, the LDH, as
a party, Plaintiff cannot maintain a Title VII case against
the individual Defendants. They argue that the individual
Defendants can only be held liable under Title VII in their
official capacities under a theory of respondeat superior.
Because they were not sued in such a capacity and because the
principal - LDH - is not a party, they cannot be liable for
go on to argue that any Title VII claims against the
individual Defendants have prescribed because Cammack failed
to bring a charge of discrimination within 300 days from his
termination. Indeed, Plaintiff never brought a claim of
discrimination against these Defendants with the EEOC,
although he did bring one against his employer, the LDH.
Defendants maintain that even if that EEOC charge
was sufficient to put them on notice personally, because
they were not sued personally within 90 days of the
issuance of a right- to-sue letter issued by EEOC and because
LDH is no longer a party, the complaint against them cannot
relate back and is prescribed.
Defendants insist that, because they were never made part of
or party to any charge of discrimination brought with the
EEOC, Plaintiff failed to exhaust his administrative ...