Gogreve v. Downtown Development Dist.
| Decision Date | 30 March 2006 |
| Docket Number | No. Civ.A. 05-2112.,Civ.A. 05-2112. |
| Parties | Donna GOGREVE v. DOWNTOWN DEVELOPMENT DISTRICT, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
James Louis Arruebarrena, Attorney at Law, New Orleans, LA, Eric J. O'Bell, LLC, Metairie, LA, for Donna Gogreve.
Frederic Theodore Le Clercq, Deutsch, Kerrigan & Stiles, New Orleans, LA, Ambrose V. McCall, Deutsch, Kerrigan & Stiles, LLP, Houston, TX, Meredith Moore Hayes, Deutsch, Kerrigan & Stiles, LLP, Monroe, LA, for Downtown Development District of the City of New Orleans, Board of Commissioners for the Downtown Development District.
James Bryan Mullaly, Joseph Vincent Dirosa, Jr., City Attorney's Office, New Orleans, LA, for New Orleans City.
Thomas Matthew Beh, Krebs, Farley & Pelleteri, LLC, Jackson, MS, Matt J. Farley, Krebs, Farley & Pelleteri, LLC, New Orleans, LA, for Kurt Weigle.
ORDER AND REASONS
Before the Court is a motion to dismiss filed by defendants Downtown Development District of New Orleans and the Board of Commissioners for the Down-town Development District pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.1 For the following reasons, defendants' motion is GRANTED IN PART AND DENIED IN PART.
Plaintiff, a resident of Louisiana, was employed by the Downtown Development District ("DDD") as the Director of Finance and Administration; her duties included acting as finance director, human resources administrator, network administrator, office manager, and employee trainer.3 The DDD was created by the state of Louisiana in 1975, as an agency of the city, in order to spur New Orleans' economic development. The DDD's Board of Commissioners ("the Board") is appointed by the mayor and the state senator and state representative for the city's downtown area.4 The Executive Director of the DDD is defendant Kurt Weigle ("Weigle").
In her employment capacities, plaintiff was an alternate contact for employee grievances. She states that several staff members contacted her regarding the hostile work environment that Weigle had created at the DDD and requested a confidential hearing before the Board. On December 8, 2003, at plaintiffs request, a grievance hearing was held before the DDD's Executive Committee. At the hearing, plaintiff informed the committee of comments made by Weigle that were racially charged.5 Plaintiff reports that Weigle learned of the hearing and attempted to discourage employees from attending.
Plaintiff alleges that on January 9, 2004, Weigle began to retaliate against her for her participation in the hearing. Plaintiff states that Weigle expected unreasonable performance by her, stopped communicating with her, and began delegating work to other parties in order to keep information from plaintiff. On January 15, 2004, plaintiff complained to Zennette Austin, the Board's vice chairperson and chair of the Board's Finance Committee. On March 29, 2004, Weigle placed plaintiff on probation. To justify this probation, Weigle cited a complaint by plaintiff that he had overburdened her with work and plaintiffs complaints regarding understaffing at the DDD.6 Plaintiff alleges that Weigle took her legitimate complaints and mischaracterized them as inappropriate acts worthy of probation.
Plaintiff suffers from a medical condition, cardiomyopathy, that she says was aggravated during her employment by the physical and emotional stress that resulted from Weigle's behavior. Eventually, plaintiff was granted a medical leave of absence beginning June 29, 2004, based on the recommendation of her doctor.7 The next day, the Board requested a more definite statement from her doctor and authorization to review her medical records. Plaintiff alleges that these requests were not made of other employees in similar situations.
On August 12, 2004, Weigle terminated plaintiff. On August 19, 2004, she requested a grievance hearing that was refused by the new Board chairperson, Elaine Coleman. In a letter dated August 26, 2004, Coleman wrote that the Board had already considered two previous grievance hearings by plaintiff and, further, that she was not entitled to a hearing to dispute her termination.8 On September 20, 2004, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On March 7, 2005, the EEOC mailed plaintiff a right to sue letter.9
Plaintiff filed her complaint against the DDD, the Board, the City of New Orleans ("City"), and Weigle, on June 6, 2005, alleging race, gender, and age discrimination pursuant to both federal and state law.10 In addition, she complained that she had been terminated in retaliation for her allegations against Weigle, that Weigle had created a hostile work environment, and that defendants' conduct constituted an intentional infliction of emotional distress. She added other allegations of federal and state law violations, including a charge of defamation.11 Defendants filed the instant motion on August 15, 2005.12
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides a defense where a party has failed to state a claim upon which relief can be granted. A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995). This Court will not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). In assessing the complaint, a court must accept all well-pleaded facts in the complaint as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997).
"However, `in order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations . . ." Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir.1992) (quoting Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir.1989)). "[C]onclusory allegations and unwarranted deductions of fact are not admitted as true' by a motion to dismiss." Id. (quoting Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.1974)). "[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir.1995) (internal quotation and citation omitted).
Rules of Civil Procedure provides for the dismissal of an action where the court finds that it does not have subject matter jurisdiction. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998) (citation omitted). "Courts may dismiss for lack of subject matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981)). Where, as here, the defendant has attacked the court's subject matter jurisdiction, the plaintiff has the burden of "proving by a preponderance of the evidence that the trial court does" possess the requisite jurisdiction. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981).
Plaintiff consents to the dismissal of some of her claims.13 Accordingly, plaintiffs claims for age, gender, and disability discrimination pursuant to federal and Louisiana law are dismissed. Plaintiffs claims relating to defendants' intentional infliction of emotional distress are also dismissed.
Defendants first argue that this Court does not have jurisdiction over plaintiffs claims pursuant to the Louisiana Code of Governmental Ethics ("Code of Ethics"), La.Rev.Stat, 42:1101 et seq.14 Defendants correctly contend that the Code of Ethics does not provide plaintiff with a private right of action. See Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 790 So.2d 725, 732 (La.Ct.App. 5th 2001) ( ); see also Wells v. City of Alexandria, No. 03-30750, 2004 WL 909735, at *2, 2004 U.S.App, LEXIS 8525, at *5-6 (5th Cir. Apr. 29, 2004) (). Plaintiff offers no opposition to this argument in her response to defendants' motion. Therefore, plaintiffs claims alleging violations of the Code of Ethics will be dismissed.
Defendants argue that plaintiff's Title VII claims against the Board should be dismissed.15 Defendants include a number of helpful citations which make clear that a plaintiff cannot recover against public employees in their individual capacities. Grant v. Lone Star Co., 21 F.3d...
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