O'Daniel v. Indus. Serv. Solutions, 18-30136

• Decision Date: 19 April 2019
• Docket Number: No. 18-30136,18-30136
• Citation: 922 F.3d 299
• Parties: Bonnie M. O’DANIEL, Plaintiff - Appellant v. INDUSTRIAL SERVICE SOLUTIONS; Plant-N-Power Services, Incorporated; Tex Simoneaux, Jr.; Cindy Huber Defendants - Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

922 F.3d 299

Bonnie M. O’DANIEL, Plaintiff - Appellant

v.INDUSTRIAL SERVICE SOLUTIONS; Plant-N-Power Services, Incorporated; Tex Simoneaux, Jr.; Cindy Huber Defendants - Appellees

No. 18-30136

United States Court of Appeals, Fifth Circuit.

FILED April 19, 2019

Joseph Arthur Smith, III, Esq., Smith Law Firm, Baton Rouge, LA, for Plaintiff-Appellant.

Timothy Hugh Scott, Esq., Lawrence Joseph Sorohan, II, Attorney, Fisher & Phillips, L.L.P., New Orleans, LA, for Defendant-Appellee.

Anne Noel Occhialino, U.S. Equal Employment Opportunity Commission, Office of General Counsel/Appellate Services, Washington, DC, Omar Francisco Gonzalez-Pagan, Lambda Legal Defense & Education Fund, Incorporated, New York, NY, for Amicus Curiae United States Equal Employment Opportunity Commission.

Kenneth Dale Upton, Jr., Omar Francisco Gonzalez-Pagan, Americans United for Separation of Church & State, Washington, DC, Gregory R. Nevins, Lambda Legal Education & Defense Fund, Atlanta, GA, for Amici Curiae American Civil Liberties Union Foundation of Louisiana, Incorporated, GLBTQ Legal Advocates & Defenders, Incorporated and Lambda Legal Defense and Education Fund, Incorporated.

Kenneth Dale Upton, Jr., Americans United for Separation of Church & State, Washington, DC, Gregory R. Nevins, Lambda Legal Education & Defense Fund, Atlanta, GA, for Amicus Curiae National Center for Lesbian Rights.

Before JONES, HAYNES, and OLDHAM, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Plaintiff-Appellant Bonnie O’Daniel ("O’Daniel") sued her former employers Defendants-Appellees Industrial Service Solutions ("ISS"), Plant-N-Power Services ("PNP"), Tex Simoneaux, Jr. ("Simoneaux"), and Cindy Huber ("Huber") for firing her allegedly because of "the Plaintiff’s sexual orientation [heterosexual] and Ms. Huber’s reaction to the Plaintiff’s pr[o]-heterosexual speech." The magistrate judge, acting by consent, dismissed her complaint pursuant to Fed. R. Civ. Pro.12(b)(6) for failure to state cognizable claims of Title VII retaliation and Louisiana law violations. Finding no reversible error, we AFFIRM.

I. BACKGROUND

O’Daniel’s complaint centers on her employers’ response to a Facebook post she made that ultimately led to her dismissal. We recite the facts as pled in O’Daniel’s complaint.

O’Daniel began working in the Louisiana office of PNP in 2013 as the manager of PNP’s human resources department. Simoneaux and Huber were part owners of PNP, and when PNP combined with ISS, Huber became President and Simoneaux became Vice President of Eastern Operations. During her time with PNP, an employment agency, O’Daniel alleges she developed a fantastic relationship with all three owners, although she never personally met Huber, who worked in the Texas office.

On April 22, 2016, O’Daniel made the incendiary Facebook post. While O’Daniel refers to the post simply as "that of a man at Target wearing a dress and not[ing] his ability to use the women’s bathroom and/or dressing

room with Mrs. O’Daniel’s young daughters,"¹ the text of O’Daniel’s post is as follows: "So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst."² The post tagged O’Daniel’s husband and included photos of the individual referred to in the post.

After O’Daniel made the post, it was shared with Simoneaux and Huber. Simoneaux informed O’Daniel that Huber wanted her fired immediately and she had personally taken offense to the post because Huber was a member of the LGBT community.³ The next day, Simoneaux informed O’Daniel that Huber wanted to know for whom her husband worked, as Huber felt a responsibility to report the Facebook post to his employer. Simoneaux also told O’Daniel that Huber had taken the Facebook post personally and felt the post wronged all members of the LGBT community, including herself. On or about April 24, 2016, Huber texted O’Daniel and told her to be available for a phone conference the following day. O’Daniel sent a text message to Simoneaux saying she felt she was being discriminated against because she was heterosexual.

O’Daniel participated in the conference call with Huber and ISS corporate counsel and was informed she must take a sensitivity/diversity training course and could no longer recruit through social media.⁴ She also received a letter of reprimand in response to her post, which stated that O’Daniel had had previous discussions regarding her job performance and areas for improvement.⁵ O’Daniel denies she had ever signed a single complaint against her before the letter of reprimand, and Huber had never before brought up issues with O’Daniel’s work performance. In fact, before the Facebook post, O’Daniel had a "great relationship" with Huber, as the two regularly exchanged jokes and pictures by text. Huber had even sponsored O’Daniel’s daughter’s softball team through PNP for two years. After the post, Huber refused to engage with O’Daniel on a personal level.

Several days after her post, O’Daniel was placed under the direct supervision of Huber, who allegedly conspired with Simoneaux to create a hostile work environment in the hope that O’Daniel would quit or be fired. O’Daniel was given three dates in May on which she could take the sensitivity training, and for various reasons, she was unable to complete the training on those dates. On May 24, 2016, O’Daniel sent a text to Simoneaux that Huber’s actions had "reached a harassing level."⁶ Huber was irate that O’Daniel had not attended any of the three trainings, wanted her fired immediately, and suggested to Simoneaux that he and O’Daniel were having an affair because Simoneaux was fighting to keep her job. At the end of May, Huber sent new rules that only applied to O’Daniel, including modifying her schedule to conflict with her children’s schedules and putting her on a time clock. O’Daniel confronted Simoneaux that she had "finally reached breaking point" and that she would be filing a formal complaint.⁷ Simoneaux told O’Daniel not to file a complaint and that he would inform Human Resources of the situation. However, he never notified Human Resources about Huber’s alleged discrimination and no investigations of the harassment or discrimination took place.

Over the next couple of weeks, O’Daniel received an email reprimand from Simoneaux stating wrongly that she was not doing her job properly. She also received hints that PNP’s Louisiana office may need to downsize and make cuts to personnel. Around June 8, O’Daniel told the Defendants in writing that she was being subjected to discrimination and harassment and she planned on filing a formal complaint. About a week later, Simoneaux told O’Daniel that the next week would be her last at PNP. When, on June 21, Huber found out that O’Daniel was still employed with PNP, she informed Simoneaux that she was shutting down O’Daniel’s email at noon. O’Daniel’s separation notice stated she was "fired due to unsatisfactory job performance." However, when O’Daniel filed for unemployment benefits and challenged their denial due to employee misconduct, PNP did not participate in the scheduled hearing and "Louisiana workforce" eventually ruled in favor of O’Daniel. O’Daniel filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on December 20, 2016, and received her right to sue letter shortly afterward.

O’Daniel alleges Huber is no longer with PNP after being investigated for dishonesty involving financial records. She also alleges that the current human resources manager at PNP made several Facebook posts that included profanity, including one towards a PNP employee who subsequently quit. But the manager never received a reprimand.⁸ O’Daniel does not mention the sexual orientation of the new human resources manager.

O’Daniel filed her initial complaint pro se , alleging violations of multiple anti-discrimination laws, wrongful termination, and intentional infliction of severe emotion distress. A first amended complaint then updated her causes of action to reflect discrimination claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq ., and various Louisiana statutes. After O’Daniel filed her first amended complaint, Defendants moved to dismiss. Before her response to the motion to dismiss was due, O’Daniel obtained counsel who moved to amend her complaint and responded to Defendants’ motion. The parties briefed the issues and the district court analyzed and resolved both motions together, granting Appellants’ motion to dismiss and denying O’Daniel’s motion for leave to amend. O’Daniel appeals the district court’s resolution of both motions.

II. STANDARD OF REVIEW

This court reviews a district court’s decision to dismiss under Rule 12(b)(6)de novo . Vaughan v. Anderson Reg’l Med. Ctr. , 849 F.3d 588, 590 (5th Cir.), cert. denied , ––– U.S. ––––, 138 S.Ct. 101, 199 L.Ed.2d 29 (2017). We accept all well-pleaded facts in the complaint as true and view the facts in the light most favorable to the plaintiff. Id ."However, those facts, ‘taken as true, [must] state a claim that is plausible on its face.’ " Bowlby v. City of Aberdeen, Miss. , 681 F.3d 215, 219 (5th Cir. 2012) (quoting Amacker v. Renaissance Asset Mgmt. LLC , 657 F.3d 252, 254 (5th Cir. 2011) ). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) ).

III. DISCUSSION

At issue in this appeal are the plaintiff’s claims for Title VII retaliation and Louisiana constitutional violations. We discuss each in turn. Although the plaintiff’s allegations and briefing are...