Opinion
Civil Action No. 01-1322 Section "R" (3)
September 4, 2001
ORDER AND REASONS
Before the Court is a motion by defendants Gateway Companies, Inc. of Delaware, Service Zone, Inc., and John Bray to dismiss plaintiff Tami Seal's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and defendants' motion to strike pursuant to Federal Rule of Civil procedure 12(f) or, in the alternative, to dismiss pursuant to 12(b)(1). For the following reasons, the Court denies defendants' motion to dismiss pursuant to Rule 12(b)(6) and grants defendants' motion to dismiss or strike the allegations contained in Paragraph 19 of plaintiff's complaint pursuant to Rule 12(b)(1).
I. Background
plaintiff Tami Seal filed suit against Gateway Inc. of Delaware ("Gateway"), Service Zone, and John Bray for gender discrimination under La. R.S. 23:332, retaliatory discharge under La. R.S. 23:967, and conspiracy to retaliate pursuant to La. R.S. 51:2256. plaintiff was hired on September 28, 2000 as a supervisor in the customer service department at Service Zone in Bogalusa, Louisiana. Her responsibilities included supervising other employees who were collectively responsible for responding to telephone questions posed by Gateway computer customers. Plaintiff alleges she performed her duties well and to the satisfaction of her employer and was frequently promised promotions.
Plaintiff contends that on January, 23, 2001, her site supervisor held a meeting concerning the unsanitary condition of the women's restroom. During the meeting, plaintiff asserts that the site director informed the female supervisors about the problem and threatened to close the restroom, have female employees escorted to the restroom, or in the alternative, establish portable toilets either inside or outside the building if the problem persisted. Plaintiff claims that she objected to the site director's proposals. Immediately following the meeting, plaintiff avers that her supervisor instructed her to inform her female subordinates about the company's policy with respect to the women's restroom.
The following day, plaintiff reported to work after researching Occupation Safety and Health Act (OSHA) regulations and deciding that her employer was required to provide extra facilities for its female employees. Plaintiff alleges that she informed her immediate supervisor of OSHA's requirements and the company's risk of liability if it did not comply. After this discussion, plaintiff alleges that her supervisor sent plaintiff home for the day.
On January 27, 2001, plaintiff received a phone call from the director of human resources informing her that she was placed on paid suspension. On February 2, 2001, plaintiff reported to her workplace for a brief meeting in which her site supervisor informed plaintiff that she was terminated for undermining authority. Plaintiff contends that she was terminated because she objected to discriminatory and otherwise illegal treatment of women at the Gateway/Service Zone Bogalusa location. She also asserts that she was terminated because both Gateway and Service Zone conspired to retaliate against her.
II. Discussion
In a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). Dismissal is warranted if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffal v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)). In deciding whether dismissal is warranted, the Court will not accept conclusory allegations in the complaint as true. See Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
B. Gender Discrimination and Retaliatory Discharge
Plaintiff alleges that Gateway, Service Zone, and John Bray discriminated against her on the basis of gender and discharged her in retaliation for her informing members of upper management of OSHA's requirements and objecting to the company proposals regarding the maintenance of the women's restroom. Louisiana's Employment Discrimination Law, La. R.S. 23:332 provides, in pertinent part:
A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally fail or refuse to hire or discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin.
La. R.S. 23:332. Similarly, Louisiana's "Whistleblower Statute," La. R.S. 23:967, provides, in pertinent part:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
"Employer" for purposes of Louisiana's Employment Discrimination Statute is defined as "a person, association, legal or commercial entity . . . receiving services from an employee and, in return, giving compensation of any kind to an employee." La. R.S. 23:302(2). This definition of an employer is also applicable to a claim under the "whistleblower" statute, La. R.S. 23:967. See Jones v. JCC Holding Co., 2001 WL 537001, *3 (E.D. La. 2001); Dronet v. LaFarge Corp., 2000 WL 1720547, *2 (E.D. La. 2000).
Defendants contend that John Bray is not individually liable under La. R.S. 23:332 or 23:967 because supervisors are not "employers" within the meaning of employment-related federal and state anti-discrimination statutes, including Title VII and La. R.S. 23:332. This assertion is supported by relevant case law. See Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.), cert. denied, 115 S. Ct. 574 (1994) (holding no individual supervisor-liability under Title VII); Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999) (affirming lower court decision that supervisor can not be held liable under Title VII in either his individual or official capacities); Galbretb v. Bell South Telecommunications, Inc., 896 F. Supp. 631 (E.D. La. 1995) (holding no individual supervisor-liability under former Louisiana anti-discrimination statute, La. R.S. 23:1006, or Louisiana Commission on Human Rights, La. R.S. 51:2231, et seq.); Rhyce v. Martin, 2001 WL 357067, *4 (E.D. La. 2001). Plaintiff concedes that Bray is not a proper defendant in the discrimination and retaliatory discharge claims and asserts that she did not sue Bray under La. R.S. 23:332 and 23:967. (Pl.'s Mem. Opp'n Mot, to Dismiss at 2.) Accordingly, plaintiff has no claim against Bray for violation of these statutes.
Defendants also move to dismiss plaintiff's claims of discrimination and retaliatory discharge against Gateway because defendants contend that Gateway is also not plaintiff's employer. Defendants assert that Gateway merely contracted for services with Service Zone and had no control over Service Zone's employees. In support of this argument, defendants submit a service agreement between Gateway and Service Zone. ( See Defs.' Mem. Supp. Mot. to Dismiss Ex. A.) Defendants contend that the Service Agreement absolves Gateway of any liability that may arise as a result of an anti-discrimination or retaliatory claim against Service Zone. They also contend that while the Court should consider the proffered agreement, it should not convert their Rule 12(b)(6) motion to a motion for summary judgment under Rule 56, which would entail allowing plaintiff to respond with information outside the pleadings or to seek discovery under Rule 56(f).
As noted, a court should only consider the pleadings when deciding a 12 (b)(6) motion to dismiss. When a court considers matters outside of the pleadings, Rule 12(b) generally requires the court to "treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56." Carter v. Stanton, 405 U.S. 669, 671 (1972). However, under a narrow exception to this rule, a court is allowed to consider exhibits attached to a defendant's motion to dismiss without converting that motion into one of summary judgment. See Sheppard v. Texas Dept. of Transp., 158 F.R.D. 592, 595-96 (E.D. Tex. 1994). This exception is an extension of the concept set forth in Rule 10(c), which allows exhibits attached to a complaint to be considered as part of the pleadings. See id. A plaintiff is under no obligation to include a pertinent document as an exhibit. See Id. (citing 5 WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1327 p. 762.) But, when a plaintiff does not attach a pertinent document to the complaint and the document contradicts the complaint, a defendant may introduce the exhibit as part of his motion attacking the pleading. See id. (citing 5 WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1327 p. 762-63.) Under this exception, a court can consider the defendant's attached exhibits if they are referenced in the complaint and central to the plaintiff's claim. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000); Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); Sheppard, 1994 WL 620938, at *2; Franks v. Prudential Health Care Plan, Inc., 2001 WL 682736, *3-4 (W.D. Tex. 2001).
Here, defendants attach the service agreement between Gateway and Service Zone in support of their argument that Gateway was not plaintiff's employer. Plaintiff merely asserts in Paragraph 3 of her complaint that "the arrangement which existed between Gateway and Service Zone amounted to a joint venture under the laws of the State of Louisiana such as to render Gateway liable for the delictual actions of Service Zone and/or John Bray." (Pl.'s Compl. at 2.) Plaintiff's complaint does not refer specifically to the service agreement and instead refers to a business arrangement" between Gateway and Service Zone, which could be evidenced by more than one document and/or by the course of dealings between the parties. The Court therefore finds that although the nature of this arrangement may be central to plaintiff's claims, the Court will not consider the service agreement as part of the pleadings because it is not specifically referred to in the complaint, and the agreement does not directly refute the complaint's assertions. Cf. Franks v. Prudential Health Care Plan, Inc., 2001 WL 682736, *4 (W.D. Tex. Feb. 28, 2001) (considering a document attached to a motion to dismiss pursuant to Rule 12(b)(6) because it was specifically referred to by the complaint and directly refuted the complaint's assertions). Defendants' motion to dismiss is therefore denied because they have failed to satisfy their burden under Rule 12(b)(6) of demonstrating that plaintiff can present no set of facts under which plaintiff could establish that Gateway was her employer under La. R.S. §§ 23:332 and 967.
C. Conspiracy to Retaliate
Defendants also move to dismiss plaintiff's conspiracy claim pursuant to La. R.S. 51:2256. The Louisiana Anti-Retaliation Statute makes it unlawful for two or more persons to conspire to retaliate against a person for opposing discriminatory practices in connection with employment. See La. R.S. 51:2256.
Defendants contend that plaintiff's allegations of conspiracy fail to set forth facts sufficient to state a claim upon which relief can be granted and should therefore be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants point out that the pleadings in a civil action for conspiracy must comply with the general requirement in Federal Rule of Civil Procedure 8 that the complaint contain a direct, simple, and concise statement that demonstrates the pleader is entitled to relief. See Guidry v. United States Tobacco Co., 188 F.3d 619, 631 (5th Cir. 1999) (citing 5 WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1233 p. 253). Here, paragraphs 17 and 18 of the complaint assert a claim under La. R.S. 51:2256, while the rest of the complaint provides further details of these charges. Plaintiff alleges that defendants retaliated against her because she challenged the bathroom policy and informed defendants that the policy may violate OSHA. Plaintiff further alleges that Bray and Gateway/Service Zone decided to terminate her on the pretext that her briefing of female employees undermined the authority of the center's director, when they in fact terminated her in retaliation for protesting against "the illegal treatment of women." (Pl.'s Compl. at 17.) The Court finds that at this stage of the proceedings, plaintiff has alleged facts sufficient to state a claim for conspiracy under La. R.S. 51:2256. See, e.g., Fluker v. Hibernia Nat'l Bank, 1996 WL 180057, *1 (E.D. La. 1996) (denying motion to dismiss based on the fact that plaintiff had failed to allege a "conspiracy" under section 2256); Lumpkin v. Griffin, 1996 WL 304313, *3 (E.D. La. 1996) (finding that plaintiff stated a claim under section 2256 even though plaintiff did not allege that defendant conspired with others to retaliate against plaintiff); Hailey v. Hickingbottom, 715 So.2d 647, 650 (La.App. 2 Cir. 1998) (construing section 2256(1) broadly). Accordingly, the Court denies defendants' motion to dismiss plaintiff's conspiracy claims against Gateway, Service Zone, and John Bray.
D. Motion to Strike/Dismiss
Defendants also move to dismiss plaintiff's allegations in paragraph 19 pursuant to Rule 12(b)(1) because they claim that plaintiff lacks standing to bring third party claims. Alternatively, they move to strike paragraph 19 because the allegations therein are immaterial, impertinent, and irrelevant pursuant to Rule 12(f).
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's 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, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). "Courts may dismiss for lack of subject matter jurisdiction on any one of three 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)). Furthermore, plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
When examining a factual challenge to subject matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of plaintiff's cause of action, the district court has substantial authority to weigh the evidence and satisfy itself as to the existence of its power to hear the case. See Garcia v. Copenhaver, Bell Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997). See also Clark, 798 F.2d at 741. Accordingly, the court may consider matters outside the pleadings, such as testimony and affidavits. See Garcia, 104 F.3d at 1261. Moreover, a court's dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits, and the dismissal does not prevent the plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
The question of standing involves whether the litigant is entitled to have the court decide the merits of the dispute. Courts have recognized a limitation on the class of persons who may invoke federal subject matter jurisdiction. Individual standing in a private suit requires the person invoking the court's authority to show that he personally suffered actual or threatened injury, that the injury can be fairly traceable to the challenged action, and the court would be likely to address the injury by a favorable decision. See Save Our Community v. U.S. Envtl. Protection Agency, 971 F.2d 1155 (5th Cir. 1992).
Apart from the constitutional limitations to standing, the courts have generally prescribed prudential standing barriers. One such non-constitutional prudential limitation is the prohibition against third party standing. Generally, a plaintiff must assert his own legal rights and interests, and cannot rest his claim to relief on the legal interests of third parties. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205 (1975). See also United Food and Commercial Workers v. Brown Group, 517 U.S. 544, 557, 116 S.Ct. 1529, 1536 (1996) (discussing the bar against third-party standing as prudential).
In paragraph 19, plaintiff alleges that Gateway and Service Zone conspired to retaliate against all women employees who complained about the women's bathroom facilities. ( See Pl.'s Compl. ¶ 19.) plaintiff assets that she included paragraph 19 in her complaint because she contemplated joining additional plaintiffs when she filed suit. However, plaintiff has failed to do so. The Court therefore dismisses the allegations in paragraph 19 because plaintiff lacks standing to assert these claims.
E. Sanctions
In her opposition, plaintiff requests that the Court impose sanctions pursuant to Federal Rule of Civil Procedure 11. The Rule establishes a procedure for moving for sanctions. Sanctions may be initiated by motion as follows:
(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
Fed.R.Civ.P. 11(c)(1)(a). Thus, a party must serve a motion for sanctions upon the opposing party but cannot file the motion with the Court until 21 days after such service. "This 'safe harbor' provision . . . contemplates such service to give the parties against whom the motion is directed an opportunity to withdraw or correct the offending contention. The plain language of the rule indicates that this notice and opportunity [to cure] prior to filing is mandatory." Elliott v. Tilton, 64 F.3d 213, 216 (5th Cir. 1995) (vacating sanctions imposed by district court for failure to comply with the 21-day procedure). There is no indication that plaintiff observed Rule it's safe harbor provision. Accordingly, the Court denies plaintiff's request for sanctions.
III. Conclusion
For the foregoing reasons, the Court denies defendants' motion to dismiss pursuant to Rule 12(b)(6) and grants defendants' motion to dismiss the allegation in paragraph 19 of the complaint pursuant to Rule 12(b)(1). The Court also denies plaintiff's request for sanctions.