Monson v. Jazz Casino Co.

• Decision Date: 01 August 2012
• Docket Number: CIVIL ACTION NO: 11-2716
• Parties: LESLIE O. MONSON v. JAZZ CASINO COMPANY, LLC
• Court: U.S. District Court — Eastern District of Louisiana

LESLIE O. MONSON

v.JAZZ CASINO COMPANY, LLC

CIVIL ACTION NO: 11-2716

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION: J(5)

Dated: August 1, 2012

ORDER AND REASONS

Before the Court are Defendant Jazz Casino Company, LLC ("Harrah's)'s Motion to Dismiss (Rec. Doc. 13), Plaintiff Leslie Monson's Memorandum in Opposition to same (Rec. Doc 10), and Harrah's Reply Memorandum (Rec. Doc. 6). In the motion, Harrah's seeks to dismiss counts one and three of Plaintiff's complaint. For reasons assigned herein, the Court hereby GRANTS the motion.

PROCEDURAL HISTORY AND BACKGROUND FACTS

Plaintiff Leslie Monson was first hired as an Advertising Manager for Harrah's in May 2007.¹ She maintained this position for approximately two years, at which point she accepted a position as Manager of Promotions, Special Events, and TotalRewards, the casino's customer loyalty program.² In January 2010, Plaintiff learned she was pregnant. Plaintiff alleges that she was reluctant to notify her supervisor, Vice President of Marketing, Sandie McNamara, that she was pregnant because she had allegedly once been told by an unnamed individual that "a woman cannot be an executive vice-president in the casino industry if [she has] a family."³ Nonetheless, she did subsequently notify McNamara of her pregnancy. She also requested maternity leave, which was subsequently approved and scheduled from July 20, 2010, until September 24, 2010.⁴

During her maternity leave, Plaintiff alleges that she heard "through the grapevine" that Harrah's was implementing organizational changes in her department, and that as a result of the reorganization, a new position, Director of Marketing Services, would be created.⁵ Plaintiff also learned that the position would subsume the job responsibilities that she currently held as the Promotions, Special Events, and Total Rewards Manager. Believing that she would be a naturalcandidate for the position, Plaintiff was reportedly "excited" about her prospects for promotion.

On Friday, September 10, 2010, several days before she was set to return from maternity leave, Plaintiff scheduled a lunch with some of her co-workers on site at the Harrah's casino. During the lunch, Plaintiff alleges that her coworkers acted uncomfortable and avoided eye contact with her. After the lunch was over, Plaintiff decided to stop by her office, where to her surprise, she found another individual, Dana Mueller, working at her desk. It later came to light that, although Harrah's had not posted the position on its list of available jobs, it had hired Mueller for the position and had assigned her to work in the space that Plaintiff had previously used as an office.

The following Monday, Plaintiff submitted a letter of resignation to Harrah's stating that she had decided to pursue a new career opportunity. A little over a year later, on November 1, 2011, Plaintiff filed the instant lawsuit, alleging that Harrah's discriminated against her on account of her pregnancy and/or maternity leave (1) by failing to post the position of Director of Marketing Services; (2) by failing to promote her to the vacant position; and (3) by constructively discharging her. Harrah's now moves to dismiss counts one and three of Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346 (2005). The allegations "must be simple, concise and direct." FED R. CIV. P. 8(d)(1).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.544, 547 (2007)). A claim is facially plausible when the plaintiff pleads the facts that allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F. 3d 228, 232-33 (5th. Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not, however, bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

DISCUSSION

As previously noted, Harrah's seeks to dismiss Plaintiff's first and third cause of action. The Court will address each inturn.

A. Count One: Failure to Post the Position of Director of Marketing Services

Title VII of the 1964 Civil Rights Act makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In 1978, Congress enacted the Pregnancy Discrimination Act ("PDA"), which amended Title VII to include discrimination based on pregnancy and pregnancy-related medical conditions within the definition of sex-based discrimination. Stout v. Baxter Healthcare Corp., 282 F.3d 856, 859 (5th Cir. 2002).⁶

Plaintiff's first cause of action alleges that Harrah's intentionally discriminated against her on account of her pregnancy when it failed to post the available Director of Marketing Services position. Claims of pregnancy discrimination are analyzed under the same standards used for discriminationclaims in general. Garcia v. Woman's Hosp. of Tex., 97 F.3d 810, 812-13 (5th Cir. 1996). As such, a plaintiff must ultimately establish a prima facie case of discrimination by showing that she is (1) is a member of a protected group, (2) was qualified for the position at issue, (3) suffered an adverse employment action, and (4) was treated less favorably than other similarly situated employees outside the protected group. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). However, the Supreme Court has clarified that the burden of making out a prima facie discrimination claim "is an evidentiary standard, not a pleading requirement." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002). Thus, a plaintiff is not required to plead a prima facie case in order to survive a motion to dismiss. Id. Still, a court may consider the McDonnell Douglas framework in assessing the sufficiency of a complaint, as no plaintiff is exempt from the obligation to "allege facts sufficient to state all the elements of her claim." See Puente v. Ridge, 324 F. App'x 423, 428 (5th Cir. 2009) (quoting (Mitchell v. Crescent River Port Pilots Ass'n, 265 F. App'x. 363, 370 (5th Cir. 2008).

Applying the foregoing standard to the facts alleged in Plaintiff's complaint, the Court agrees with Harrah's position that an employer's mere failure to post a job vacancy does not, in and of itself, give rise to an independent disparate treatment claim, for three reasons. First, nothing in Title VII requiresan employer to advertise its job openings as a general matter. See Crowley v. Rockford Hous. Auth., 1 F. App'x 499, 500 (7th Cir. 2001) ("Title VII neither compels employers to advertise vacancies nor forbids them from singling out employees for unsolicited promotion.") (internal citations omitted); Gatewood v. Columbia Pub. Sch. Dist., 415 F. Supp. 2d 983, 997 (W.D. Mo. 2006) (noting that "the law generally does not require that promotional opportunities be posted"). Thus, on its face, Plaintiff's complaint fails to allege conduct actionable under the statute.

Second, Fifth Circuit precedent limits the types of adverse employment actions upon which Title VII discrimination claims can be based to "ultimate employment decisions," such as such as hiring, granting leave, discharging, promoting, or compensating." McCoy, 492 F.3d at 559. Although an employer's refusal to promote an employee would certainly constitute an ultimate employment decision, the mere failure to provide information regarding a vacant position, on its own, does not. See, e.g., Newkirk v. AAA Chicago Motor Club, No. 01 C 615, 2003 WL 21518546, at *6 (N.D. Ill. July 2, 2003) ("A mere failure to provide information without any loss of actual or potential benefit simply does not constitute an adverse employment action under the law.").

Finally, if Harrah's did fail to post the Director ofMarketing position, as Plaintiff alleges, then Plaintiff received precisely the same treatment as every other Harrah's employee. A disparate treatment claim, as the name suggests, is premised on the fact that the plaintiff was subject to differential treatment based on her status as a member in a protected group. Guarino v. Potter, 102 F. App'x. 865, 868 (5th Cir. 2004) (noting that the "central focus" of a disparate treatment claim based on pregnancy discrimination is "whether an employer is treating employees less favorably because of their [pregnancy]"). Conversely, then, when a facially neutral policy has been evenhandedly applied to all employees, disparate treatment does not occur.

Here, Plaintiff does not allege that information regarding the Director of Marketing position was selectively withheld from her because she was pregnant. Rather, she concedes that "the job was not posted on the websites that Harrah's directed its employees to search for job availabilities."⁷ Thus, all of Harrah's employees who have been interested in applying for the position were provided the same amount of information about its availability, regardless of whether they were pregnant, and as a result, no disparate treatment claim will lie based on the facts Plaintiff has alleged.⁸ See Dotson v. Delta Consol. Indus.,Inc., 251 F.3d 780, 782 (8th Cir. 2001) (...