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Richard v. Louisiana o/b/o Dep't of Children & Family Services

United States District Court, W.D. Louisiana, Lake Charles Division

June 3, 2019




         Before the court is a motion to dismiss (Rec. Doc. 22), which was filed pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) by the defendant, the State of Louisiana on behalf of the Louisiana Department of Children & Family Services (“the State”). The motion is opposed and has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, it is recommended that the motion be granted in part and denied in part.


         In her complaint, the plaintiff, Kimberly A. Richard, alleged that her employer, the State, discriminated against her on the basis of her race (African-American) and gender (female) by passing her over for promotions in favor of less qualified Caucasian and male employees and by retaliating against her because she complained about a supervisor, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the Louisiana Employment Discrimination Law (“LEDL”), La. R.S. 23:332 et seq. After exhausting her discrimination claims with the EEOC and receiving a right-to-sue letter dated June 27, 2018, Ms. Richard timely filed suit against the State in this court on September 24, 2018.

         The State moved to dismiss Ms. Richard's claims under Rule 12(b)(5) of the Federal Rules of Civil Procedure, asserting that it was not served in compliance with state law. The State also moved to dismiss Ms. Richard's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that Ms. Richard failed to timely file her charge of discrimination with the EEOC within 300 days of many of the alleged acts of discrimination and failed to state a prima facie case for her Title VII claims. Ms. Richard opposed the motion, arguing that the defendant was properly served, that her charge was timely filed because the discrimination constituted a continuing violation, and that she has alleged sufficient facts in support of her claims.[1]

         Law and Analysis

         A. Rule 12(b)(5)

         Rule 12(b)(5) of the Federal Rules of Civil Procedure provides for dismissal of a claim if service of process is not timely made in accordance with Rule 4 of the Federal Rules of Civil Procedure or other appropriate standards. The party making service has the burden of demonstrating its validity when an objection is made.[2] The district court has broad discretion to dismiss an action for insufficient service of process.[3]

         B. Rule 12(b)(6)

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows for dismissal of a claim when a plaintiff “fail[s] to state a claim upon which relief can be granted.” When reviewing a Rule 12(b)(6) motion to dismiss, the court should focus on the complaint and its attachments.[4] The court can also consider matters of which it may take judicial notice, including matters of public record.[5] The court must accept all well-pleaded facts as true, and it must view them in the light most favorable to the plaintiff.[6] However, conclusory allegations and unwarranted deductions of fact are not accepted as true, [7] and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”[8]

         To survive a Rule 12(b)(6) motion, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”[9] The allegations must be sufficient “to raise a right to relief above the speculative level, ”[10] and “the pleading must contain something more. . . than. . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.”[11] “While a complaint. . . does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”[12] If the plaintiff fails to allege facts sufficient to “nudge[ ][his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.”[13]

         A claim meets the test for facial plausibility “when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[14] “[D]etermining whether a complaint states a plausible claim for relief. . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”[15]Therefore, “[t]he 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.”[16]

         C. Service of Process

         Because this action was originally filed in federal court, it is subject to federal rules for service of process.[17] Under Rule 4(j)(2) of the Federal Rules of Civil Procedure, a state or any other state-created governmental organization that is subject to suit “must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant.” Under Rule 4(m), a defendant must be served within ninety days after the complaint was filed - though the court may extend this time period for good cause shown.

         The State argued that service was insufficient under La. R.S. 39:1538(D), because Ms. Richard did not serve the DCFS Office of Risk Management until January 11, 2019. That statute requires that, in actions for damages brought against the state or a state agency for the wrongful acts of an employee of the agency, process must be served on the head of the department concerned, the office of risk management, and the attorney general. But that statute does not apply to lawsuits originally filed in federal court. Further, the plaintiff properly effected service on DCFS's chief executive officer, Kim Glapion-Bertrand, on October 4, 2019.[18]Service was therefore effective under Rule 4(j)(2)(A) and timely under Rule 4(m). Therefore, it is recommended that the motion to dismiss under Rule 12(b)(5) should be denied.

         D. Exhaustion of Remedies

         The State argued that all claims except those tied to the 2018 failure to promote should be dismissed under Title VII for failure to timely file a charge of discrimination and dismissed under state law as prescribed. In the Fifth Circuit, failure to exhaust administrative remedies before bringing an employment discrimination suit is not a jurisdictional bar; instead, it is “a prudential prerequisite to suit.”[19] Additionally, prescription provides grounds for dismissal under Rule 12(b)(6) where the untimeliness appears from the face of the complaint.[20]Accordingly, this matter is properly considered under Rule 12(b)(6).

         Employees seeking relief under Title VII must exhaust their administrative remedies before filing suit by filing a charge of discrimination with the EEOC within 180 days of the alleged unlawful conduct, or within 300 days if the party initially institutes proceedings with a state or local agency with the authority to review such claims.[21] Once the EEOC issues a right-to-sue letter to the party who filed the charge, that party has ninety days to file a Title VII action in the district court.[22]“Timely filing is a prerequisite to the maintenance of a Title VII action and the failure to file within the statutory period will ordinarily operate as a bar to suit.”[23]

         The LEDL requires a plaintiff to exhaust her employment discrimination claims by providing the defendant with written notice of those claims at least thirty days before filing suit.[24] A plaintiff may fulfill this requirement by filing a discrimination charge with the EEOC.[25] Claims brought under the LEDL are subject to a one-year prescriptive period.[26] Although this period may be suspended for up to six months during the pendency of administrative review, the suspension may not last longer than six months.[27] Because Ms. Richard's EEOC complaint was disposed of on the same day it was filed, the suspension lasted for only one day and any LEDL claims relating to the promotion denials in 2015 that are not part of a continuing violation have prescribed.

         Ms. Richard asserted that she exhausted her claims through a charge of discrimination filed on June 27, 2018 and rejected by the EEOC on the same date. She complained of retaliation for filing a 2014 charge with the EEOC and discrimination in being passed over for promotions in April 2015, July 2015, and March 2018. Accordingly, the state maintained that her EEOC charge was untimely as to everything except the March 2018 promotion. Ms. Richard contended, however, the specific claims represent a continuing violation and that she therefore timely filed her 2018 EEOC charge with respect to each alleged act of discrimination.

         Under the continuing violation doctrine, a plaintiff's hostile work environment claim is timely asserted “as long as [the] employee files her complaint while at least one act which comprises the. . . claim is still timely”[28] and the court may consider “the entire time period of the hostile environment. . . for the purposes of determining liability.”[29] This doctrine, however, encompasses only the allegations that form part of the same pattern or policy of discrimination giving rise to the Title VII claim.[30] Discrete acts, on the other hand, “even if serial, are not entitled to the shelter of the continuing violation doctrine.”[31] To this end, the Supreme Court specifically distinguishes “[d]iscrete acts such a termination, failure to promote, denial of transfer, or refusal to hire” and notes that these “are not actionable if time barred, even when they are related to acts alleged in timely filed charges.”[32]

         Even if the failure to promote occurred multiple times over a career and the unexhausted/prescribed instances relate to the timely and properly exhausted one, they are still discrete events.[33] Accordingly, exhaustion of a claim as to the last discrete event does not preserve the plaintiff's right to assert a claim regarding any previous incidents.[34]

         Ms. Richard attempted to rescue her allegations by asserting a hostile work environment claim, based on general allegations of “harassment” in addition to the denials of promotions. But she did not allege any specific incident, other than the March 2018 denial of a promotion and another incident from that month in which a supervisor referred to her as ...

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