Bourgeois v. U.S. Coast Guard

• Decision Date: 16 December 2015
• Docket Number: CIVIL ACTION NO.: 13-2921
• Citation: 151 F.Supp.3d 726
• Parties: John Bourgeois v. United States Coast Guard, Marine Safety Unit, et al.
• Court: U.S. District Court — Western District of Louisiana

151 F.Supp.3d 726

John Bourgeois

v.United States Coast Guard, Marine Safety Unit, et al.

CIVIL ACTION NO.: 13-2921

United States District Court, W.D. Louisiana, Lafayette Division.

Signed December 16, 2015

Filed December 17, 2015

G. Karl Bernard, New Orleans, LA, for John Bourgeois.

Monique Wright Hudson, US Attorneys Office, Shreveport, LA, Acourtney Terell Joiner, Hammonds Sills et al., Baton Rouge, LA, Katherine W. Vincent, US Attorneys Office, Lafayette, LA, for United States Coast, Guard Marine Safety Unit, et al.

MEMORANDUM RULING

REBECCA F. DOHERTY

, UNITED STATES DISTRICT JUDGE

Pending before the Court is a “Motion to Dismiss, and in the Alternative, Motion for Summary Judgement” [Doc. 24] filed on behalf of defendants, the United States Coast Guard, Marine Safety Unit (“USCG”) and Jeh Charles Johnson, the Secretary of Homeland Security (‘collectively, “defendants”), wherein defendants seeks dismissal with prejudice of all claims brought against them by the plaintiff. The plaintiff opposes the motion [Doc. 32], and the defendants filed a Motion for Leave to File a Reply Brief [Doc. 38], which is herein GRANTED. For the following reasons, the motion is GRANTED FN PART AND DENIED IN PART.

I. Factual and Procedural History

Plaintiff, John Bourgeois, filed the instant lawsuit on October 23, 2013 against the USCG and Secretary Johnson asserting claims for: (1) unlawful discrimination on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.

; (2) unlawful discrimination on the basis of national origin in violation of 42 U.S.C. § 1981 ;¹ and, the (3) unlawful retaliation in violation of 42 U.S.C. § 2000e-3(a).²

Specifically, plaintiff alleges he is a member of the protected class of “native born American of Acadian descent”—or “Cajun American”—who began his employment as a vessel traffic control specialist for the Marine Safety Unit of the Coast Guard in 2007. Plaintiff further alleges that despite an exemplary record as an employee who continually exceeded expectations in all categories of his job requirements, he was subjected to “discriminatory terms and conditions of employment and harassment based on his national original, Acadian.” Specifically, the plaintiff alleges the following:

9.

From July 2011 through June 2012, Bourgeois was subjected to a continual pattern of harassment and retaliation by Michalczak in the form of multiple discriminatory and derogatory statements and acts, that include but are not limited to the following:

A. In July of 2011, the very first time Michalczack introduced himself to the crew, he shook all the employees' hands, except Bourgeois.' He immediately let Bourgeois know he was not a part of the team.

B. In September of 2011, Michalczak issued Bourgeois a letter of admonishment pertaining to an incident that took place while Bourgeois was working his second job as a private tug boat captain and not on the clock for the Coast Guard. Even though Bourgeois had nothing to do with the incident, he was denied a $1,500 bonus.

C. In February of 2012, Michalczak stated to Bourgeois and others that “coon ass” boat captains were so dumb that he could not understand how they were able to pass the test to receive their licenses.

D. In April of 2012, because of Bourgeois accent, Michalczak told Bourgeois he “sounded unprofessional” after a conversation Bourgeois had with a group of mariners on the radio.

E. In May of 2012, Michalczak again made the statement that “coon ass” boat captains were dumb and unable to perform their jobs adequately.

F. Bourgeois was the lowest paid civilian employed with the Morgan City unit.

G. For 2012, Michalczak did not recommend Bourgeois for a step increase in his salary even though Bourgeois received an “excellent” on his employment evaluation. Notably, all other employees in the unit received a step increase in their salary.

H. Michalczak denied Bourgeois another bonus that Bourgeois earned for 2012.³

Defendants filed the instant motion as a motion to dismiss on grounds of lack of subject matter jurisdiction, and alternatively, as a motion for summary judgment. The plaintiff opposes the motion.

II. Law and Analysis

The instant motion is presented as a motion to dismiss for lack of subject matter jurisdiction and, alternatively, as a motion for summary judgment. When faced with multiple grounds for dismissal in a motion, a federal district court should consider subject matter jurisdiction before any determination on the merits. Ruhrgas v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)

(noting, however, that the same principle does not dictate a sequencing of jurisdictional issues). Consequently, this Court will address the grounds for dismissal under the motion to dismiss for lack of subject matter jurisdiction before addressing the motion for summary judgment.

A. Rule 12(b)(1) Motion to Dismiss

“A motion to dismiss under Rule 12(b)(1) is analyzed under the same standard as a motion to dismiss under Rule 12(b)(6).” Lewis v. Brown, 2015 WL 803124, *1 (M.D.La. Feb.25, 2015)

(J. DeGravelles); Hall v. Louisiana, 974 F.Supp.2d 978, 985 (M.D.La.2013) (J. Jackson), citing

Benton v. United States, 960 F.2d 19, 21 (5th Cir.1992). However, while the 12(b)(6) analysis is generally confined to a review of the complaint and its proper attachments, Fin. Acquisition Partners v. Blackwell, 440 F.3d 278,286 (5th Cir.2006), under Rule 12(b)(1), the court may consider any of the following: (1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; and/or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts. Robinson v. TCI/US West Communications Inc. , 117 F.3d 900, 904 (5th Cir.1997). See also

Walch v. Adjutant General's Dep't of Texas, 533 F.3d 289, 293 (5th Cir.2008). Finally, “[t]he burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Hall, 974 F.Supp.2d at 986.

When reviewing a motion to dismiss under Rule 12(b)(6), the Court's “analysis generally should focus exclusively on what appears in the complaint and its proper attachments.” Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir.2012)

cert, denied, ––– U.S. ––––, 133 S.Ct. 32, 183 L.Ed.2d 678 (2012) (citing Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir.2006) ). The Court reviews the motion to dismiss under Rule 12(b)(6), “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff. ” Bustos v. Martini Club Inc. , 599 F.3d 458, 461 (5th Cir.2010) (quotation marks omitted)(emphasis added). However, “[f]actual allegations must be enough to raise a right to relief above the speculative level. ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (emphasis added). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that implausible on its face. ’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 )(emphasis added). Thus, pursuant to a 12(b)(6) inquiry, the Court is addressing the sufficiency of the facts plead, not their truth or the ultimate substantive application of those facts, and therefore, looks to whether the facts are “well pleaded ” rather than to resolve the disputes or possible arguments suggested by, or, surrounding those facts. The jurisprudence instructs the nature of such an inquiry should look to whether a claim has facial plausibility where the pled facts allow a court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 129 S.Ct. at 1949

. “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.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ) (emphasis added). Stated differently, the jurisprudence instructs that if a plaintiff fails to allege, in his/her pleadings, facts sufficient to “nudge [his or her] claims across the line from conceivable to plausible, [his or her] complaint must be dismissed.” Mitchell v. Johnson, 07–40996, 2008 WL 3244283 (5th Cir. Aug. 8, 2008) (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955 )(emphasis added). Again, the jurisprudence instructs that determining whether this standard has been met is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

In the instant case, the defendants seek dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction on grounds the plaintiff has failed to exhaust his administrative remedies prior to filing the original complaint. Specifically, the defendants argue “there is no record of [p]laintiff filing or submitting a formal EEO complaint,”⁴ a jurisdictional defect the defendants argue mandates a dismissal of the instant matter for lack of jurisdiction.

Before bringing suit in federal court, “Title VII specifically requires a federal employee claiming discrimination to exhaust his administrative remedies. The complainant also must file his complaint in a timely manner. If the claimant fails to comply with either of these requirements then the court is deprived of jurisdiction over the case.” Randel v. U.S. Dep't of Navy, 157 F.3d 392, 395 (5th Cir.1998)

(internal citations omitted). In order to exhaust administrative remedies, a plaintiff must comply with the EEO regulations set forth at 29 C.F.R. § 1614.105. A federal employee claiming discrimination must first contact an EEO counselor within 45 days of the allegedly discriminatory incident. 29 C.F.R. § 1614.105(a)(1)....