O'Daniel v. Industrial Service Solutions, 010218 LAMDC, C. A. 17-190-RLB

Docket Nº:Civil Action 17-190-RLB
Opinion Judge:RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
Party Name:BONNIE M. O'DANIEL v. INDUSTRIAL SERVICE SOLUTIONS, ET AL.
Case Date:January 02, 2018
Court:United States District Courts, 5th Circuit, Middle District of Louisiana
 
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BONNIE M. O'DANIEL

v.

INDUSTRIAL SERVICE SOLUTIONS, ET AL.

Civil Action No. 17-190-RLB

United States District Court, M.D. Louisiana

January 2, 2018

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendants' Motion to Dismiss with Prejudice (R. Doc. 23) filed on 28, 2017. The motion is opposed. (R. Doc. 30). Defendants filed a Reply. (R. Doc. 31). Plaintiff filed a Sur-Reply. (R. Doc. 38).

         Also before the Court is Plaintiff's Motion for Leave to File Plaintiff's Second Amended Complaint (R. Doc. 29) filed on October 3, 2017. The motion is opposed. (R. Doc. 32).

         Because the foregoing motions concern related issues, the Court considers them together.

         I. Background

         On March 27, 2017, Bonnie O'Daniel (“Plaintiff”) commenced this action pro se, alleging, among other things, that she was improperly terminated from her employment. (R. Doc. 1). Plaintiff named as defendants Industrial Service Solutions (“ISS”), Plant-N-Power, Services, Inc. (“PNP”), Cindy Huber, and Tex Simoneaux, Jr. (collectively, “Defendants”).

         On August 14, 2017, Plaintiff, still proceeding pro se, filed an Amended Complaint. (R. Doc. 18, “Am. Compl.”). In Paragraph 1 of the Amended Complaint, Plaintiff asserts that she seeks recovery under various federal and state statutes for (1) discrimination based on sex, (2) reverse discrimination based on retaliation, (3) discrimination based on gender, (4) defamation, (5) disparate treatment, and (6) intentional infliction of severe emotional distress. (Am. Compl. ¶ 1). According to Plaintiff, her employment with PNP, whose parent company is ISS, was terminated on June 21, 2016 by Mr. Simoneaux. (Am. Compl. ¶ 12). Plaintiff alleges that her employment was terminated because she posted on her Facebook page a photograph of a man wearing a dress at Target store and commented on his ability to use the women's restroom and/or dressing room with her daughters. (Am. Compl. ¶ 23).1 Plaintiff alleges that Ms. Huber, the president of PNP and member of the LGBT community, took offense at the posting and suggested that she be fired immediately. (Am. Compl. ¶¶ 17, 23).

         On August 28, 2017, Defendants filed their motion to dismiss. (R. Doc. 23). Defendants seek dismissal of the claims raised in the Amended Complaint on the following bases: (1) Plaintiff's discrimination claims fail because individual defendants are not proper parties under federal or state law, Plaintiff failed to administratively exhaust her discrimination claims under federal and state law, and Plaintiff failed to allege a discriminatory act taken against her due to her sex or gender; (2) Plaintiff's retaliation claim fails because individual defendants are not proper parties under federal or state law and Plaintiff failed to plead any protected activity necessary under Title VII; (3) Plaintiff's defamation claim fails because Plaintiff has not alleged any non-privileged false and defamatory statement made about her by any Defendant; and (4) Plaintiff's intentional infliction of emotional distress claim fails because the allegations do not rise to the necessary level to sustain the claim. (R. Doc. 23 at 1-2, R. Doc. 23-1). Defendants further submit that any further amendment would be futile and dismissal should be entered with prejudice. (R. Doc. 23 at 2, R. Doc. 23-1 at 19).

         On September 15, 2017, counsel enrolled on behalf of Plaintiff. (R. Docs. 25, 26).

         On October 3, 2017, Plaintiff filed her motion to amend (R. Doc. 29). Also on October 3, 2017, Plaintiff filed her Opposition to the Motion to Dismiss. (R. Doc. 30).

         Plaintiff's proposed Second Amended Complaint seeks to amend Paragraph 1 of the Amended Complaint by asserting the following three claims in place of the original six claims: (1) “The Defendants retaliated against Plaintiff by terminating her for exercising her constitutionally protected right to freedom of expression, in violation of La. Const. Art. 1 § 7”;

(2) “The Defendants conspired with others to invade Plaintiff's constitutional right to privacy, in violation of La. Const. Art. 1 § 7”; and (3) “The Defendants retaliated against Plaintiff by terminating her in part due to her opposition to the Defendants' practice of sex discrimination (i.e., informing Defendants that she intended to file a formal complaint of sex discrimination), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).” (R. Doc. 29-2 at 1-2). Plaintiff also seeks to allege various additional factual allegations and to modify her prayer for relief. (R. Doc. 29-2 at 2-9).

         Plaintiff's Opposition to the Motion to Dismiss is likewise limited to addressing the viability of these three claims. (R. Doc. 30).

         In light of the foregoing modification of the claims in Paragraph 1 of the Amended Complaint, Defendants argue in support of their motion to dismiss that Plaintiff has abandoned her discrimination, defamation, disparate treatment, and intentional infliction of emotional distress claims as asserted in the Amended Complaint. (R. Doc. 31 at 1). Defendants also argue that Plaintiff's proposed claims for right to privacy, right to free expression, and retaliation are futile. (R. Doc. 32; see R. Doc. 31 at 2-5). In opposition to Defendants' motion to dismiss, Plaintiff argues that her proposed claims for right to privacy, right to free expression, and retaliation are viable, but does not raise any argument in support of a finding that her original six claims survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (R. Doc. 30). Plaintiff subsequently withdrew her proposed claim for right to privacy, but maintains that her proposed claims for right to free expression and retaliation are viable. (R. Doc. 38).

         Given the foregoing, there is no dispute that the Plaintiff is now only seeking to allege a freedom of expression claim under Article 1, Section 7, of the Louisiana Constitution, and a retaliation claim under Title VII. Plaintiff contends that she states a valid claim for retaliation in violation of her right to freedom of expression because the Louisiana Constitution provides a remedy for retaliation to private employees, and her Facebook post touched upon a matter of public concern. (R. Doc. 30 at 5-7). Plaintiff contends that she states a valid claim for retaliation under Title VII because she engaged in “protected activity” by asserting that she would file a formal complaint, and later filed a charge with the EEOC, regarding Defendants' unlawful practice of discrimination, and Defendant engaged in an “adverse employment action” by terminating her employment. (R. Doc. 30 at 7-8).

         Defendants argue that Plaintiff's freedom of expression claim is futile because Defendants are private actors, not state actors or otherwise acting under the color of state law. (R. Doc. 32 at 4-6; R. Doc. 31 at 2-4). Defendants argue that Plaintiff's Title VII retaliation claim is futile because Title VII does not protect complaints concerning harassment based upon a non-protected characteristic such as sexual orientation. (R. Doc. 32 at 6-10; R. Doc. 31 at 4-5). Finally, Defendants contend that Plaintiff has failed to demonstrate how the individual...

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