Opinion
Civil Action No: 01-1863, SECTION: "J" (2)
October 22, 2001
Before the Court is Defendants' Combined Rule 12(b)(6) Motion to Dismiss Plaintiff's Amended and Superceding Complaint for Failure to State a Claim; and Defendants' Alternative Rule 12(f) Motion to Strike and Motion to Seal the Record (Roc. Doc. 13). The motion, set for hearing on Auqust 29, 2001, is before the Court on briefs without oral argument. Plaintiff opposes the motion. Having considered the various memoranda filed by both sides and the applicable law, the Court concludes, for the reasons that follow, that the motion should be GRANTED in part and DENIED in part.
Defendants initially filed a motion to dismiss Plaintiff's original complaint or alternatively a motion for more definite statement under Rule 12(e) (Rec. Doc. 12). Thereafter, Plaintiff filed an amended complaint, which appears to supercede the original complaint, as it essentially restates the same claims and allegations, presents those claims in a more organized and comprehensible manner, and adds some supplemental facts in support. Accordingly, the Court will also treat Plaintiff's amended complaint as superceding.
BACKGROUND
Plaintiff was employed as General Counsel for New Orleans Public Schools from May 15, 2000 until September 10, 2001. Plaintiff's job responsibilities as General Counsel, as set forth in the Position Vacancy Announcement, included providing legal counsel for the effective and efficient operation for all legal matters pertaining to the school system and acting as an advisor and counselor to the system's CEO, principals, department heads, administrators, and other staff. Encompassed within these duties, was Plaintiff's responsibility to investigate and evaluate complaints filed against the School Board by employees with the Equal Employment Opportunity Commission ("EEOC").
In August 2000, the School Board entered into an agreement with the Civil Rights Division of the Department of Justice in order to settle an Americans with Disabilities Act ("ADA") case, pursuant to which the Board is to notify the Department of any denial of a request for accommodation that has been appealed to the Office of General Counsel and not resolved internally. The settlement agreement also provides that the Office of General Counsel "shall coordinate implementation of the School Board's ADA policies and practices" as described in the agreement. Plaintiff asserts that the agreement specifically authorizes her to monitor and report any and all unresolved problems to the Department of Justice.
In December 2000, two School Board employees filed complaints with the EEOC against the Board, alleging disability discrimination. plaintiff investigated the complaints and reported to Defendant CEO Alphonse Davis her findings and recommendations. Plaintiff claims that Davis disagreed with her findings and directed her to change her report, to do which she refused. Immediately following their disagreement, Plaintiff asserts that she reported to Davis that both employees had made offers to settle their complaints and reminded him that she had an obligation to report these developments to the Department of Justice under the settlement agreement. According to Plaintiff's amended complaint, as a result of their disagreement, Davis began harassing Plaintiff by yelling, slamming doors, and throwing objects in her presence.
On February 19, 2001, Plaintiff reported the failure to conciliate the two employee complaints to the Department of Justice and the EEOC's New Orleans District Office. Apparently, at some time, Plaintiff also disclosed information regarding the claims and/or the settlement offers to Board members. Thereafter, Plaintiff claims that she received a letter from Davis, dated March 1, 2001, in which he accused her of insubordination for her actions. Davis held a Level I discharge conference with Plaintiff on March 9, 2001, regarding his allegations. On March 15, 2001, Plaintiff was notified by Davis that he would seek a revision of the Board's discharge policy, in order to reduce the three-step discharge process applicable to the General Counsel to a two-step process. On March 19, Plaintiff, through her counsel, notified the Board of Davis's allegedly retaliatory conduct stemming from her investigation and recommendation regarding the employees' ADA claims. Davis's proposed revision in the discharge process was adopted by the Board on May 14, 2001. On May 21, 2001, plaintiff asserts she was placed on administrative leave having been charged with "flagrant insubordination" for failure to follow Davis's directives.
Plaintiff filed the instant suit on June 18, 2001, and her amended complaint on July 26, 2001. However, Plaintiff's Right-to-Sue Letter is dated July 27, 2001. In her amended complaint, Plaintiff alleges that Defendants, Alphonse G. Davis, individually and in his official capacity as CEO of the New Orleans Public Schools, and the Orleans Parish School Board, unlawfully retaliated against her in violation of the ADA, Title VII, the First Amendment, and Louisiana's Whistle Blower Statute; violated her due process rights; and intentionally inflicted emotional distress upon her. Plaintiff was officially terminated from employment on September 10, 2001.
LEGAL STANDARD
A motion to dismiss under rule 12(b)(6) "is viewed with disfavor and is rarely granted." Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). The Court should not dismiss a complaint under rule 12(b)(6) "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, 2 L. Ed. 2d 80 (1957). "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 601 (1969)
However, in order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations. The court should not accept as true conclusory allegations or unwarranted deductions of fact. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
DISCUSSION
As an initial matter, Defendants first argue that Plaintiff's suit should be dismissed because she prematurely filed her action before receiving her Right-to-Sue Letter. Defendants also argue that the letter itself is procedurally and substantively defective under the controlling regulation and cannot grant Plaintiff the right to sue any of the school defendants. See 29 C.F.R. § 1601.28 (a)(2).
Defendants argument that Plaintiff's letter cannot grant her the right to sue Defendants is meritless. Subsection (d)(2) of 29 C.F.R. § 1601.28 provides that the Attorney General will issue the notice of right to sue in cases where the respondent is a governmental agency or political subdivision and where the party has requested a notice of right to sue and the EEOC has determined that it will be unable to complete its administrative processing of the charge within 180 days. Subsection 5(f) of 42 U.S.C. 2000e also provides that the Attorney General shall provide notice of right to sue when the Department of Justice has not filed a civil action within 180 days of the charge being filed. Accordingly, Plaintiff was properly issued a letter by the Department of Justice within 180 days of her filing a complaint, once it was clear that the EEOC would not complete investigation of the charge and the Department of Justice would not file a civil action within the relevant period of time.
Defendants' argument regarding the timing of Plaintiff's suit is also without merit. The receipt of a right to sue letter is not a jurisdictional prerequisite, but is a condition precedent subject to equitable modification. See Pinkard v. Pullman-Standard, 678 F.2d 1211, 1216 (5th Cir. 1982). Furthermore, even though Plaintiff filed suit before receiving the right-to-sue letter, her subsequent receipt of the letter cures the filing defect. See id.
I. Americans with Disabilities Act Retaliation Claim 42 U.S.C. § 12203
Plaintiff alleges that her actions of investigating the employees' charges of discrimination and reporting the school system's failure to conciliate those complaints to the Department of Justice and the EEOC, constituted protected activity under the ADA. She claims that because she participated in that protected activity, Defendant Davis retaliated against her by, ultimately, causing her employment to be terminated.
The Court recognizes that Plaintiff has in fact been terminated from employment. However, her complaint has not been amended to reflect that fact as of yet.
A. Standing
Defendants do not directly challenge Plaintiffs ADA retaliation claim; rather, they argue that Plaintiff has no standing to bring a retaliation claim under the ADA, because she did not have the requisite relationship with the two ADA complainants. Defendants cite the holding in Holt v. JTM Industries, Inc., 89 F.3d 1224, 1226 (5th Cir. 1996), reh'g denied, 105 F.3d 658 (5th Cir. 1996), cert. denied, 520 U.S. 1229, 117 S. Ct. 1821, 137 L.Ed.2d 1029 (1997), as supporting their argument that only a co-worker or a representative of the discrimination complainants can bring a retaliation claim.
To prove retaliation under the ADA, a plaintiff must show: (1) that the plaintiff engaged in protected activity; (2) that the employer took an adverse employment action against her; and (3) that a causal connection exists between the protected activity and the adverse employment action. 42 U.S.C. § 12203 (a); Haynes v. Pennzoil Company, 207 F.3d 296, 299 (5th Cir. 2000).
The Holt case, however, has no bearing on the instant case, as there the Fifth Circuit considered the question of whether the spouse of an employee who had engaged in protected conduct had standing to sue under the retaliation provisions of the Age Discrimination in Employment Act. 89 F.3d at 1226. The Court held that the husband, who had not engaged in protected conduct, lacked standing to sue for retaliation under the ADEA.Id.
Section 12203(a) of the ADA provides that:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, or hearing under this chapter.
(Emphasis added). In the instant case, Plaintiff alleges she directly participated in protected activity under the ADA and was discriminated against as a result thereof. Clearly she qualifies as "any individual" under the ADA retaliation provision and has standing to bring that claim.
B. Individual Liability under ADA
However, Defendants also correctly assert that the ADA does not permit Plaintiff to maintain a suit against Davis, either individually or as the Board's agent. In Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999), the Court explained that Title VII does not impose individual liability or allow a plaintiff to maintain an action against both an employer and its agent in an official capacity. The same rationale extends to claims brought under the ADA, as the ADA contains a statutory provision stating that it must be enforced in the same manner as Title VII. See 42 U.S.C. § 12117 (a). Consequently, the district courts within the Fifth Circuit that have addressed the issue, have held that the ADA's definition of "employer" mirrors the definitions of employer in Title VII. Accordingly, Plaintiff cannot maintain ADA claims against Davis individually, and those claims are dismissed.
See, e.g., Berthelot v. Stadler, No. Civ. A, 99-2009, 2000 WL 1568224, *2, n. 4 (E.D.La. 10/19/00) (holding that ADA's definition of public entity does not include persons and dismissing individual defendants); Starkman v. Evans, 18 F. Supp.2d 630 (E.D.La. 1998) (finding no individual liability exists under ADA); Jenkins v. Board of Education of the Houston Independent School District, 937 F. Supp. 608, 612 (S.D.Tex. 1996) (granting dismissal in favor of school district officials, sued in their individual capacities, finding that employee/plaintiff failed to state a claim upon which relief could be granted under the ADA).
II. Title VII Retaliation Claim 42 U.S.C. § 2000e-3 (a)
Defendants assert that Plaintiff's pleadings do not reference any Title VII claims filed by any Board employees and that there is a complete void of any alleged facts inferring retaliation under Title VII. Because Plaintiff offers no real argument in opposition and the Court can find no allegation that Plaintiff investigated any employee claims of discrimination on the basis of race, color, religion, sex, or national origin, the Court concludes that Plaintiff has failed to state a claim for Title VII retaliation upon which relief could be granted. Accordingly, Plaintiff's Title VII retaliation claim is dismissed
III. First Amendment Retaliation Claim 42 U.S.C. § 1983
In support of her First Amendment retaliation claim, Plaintiff asserts that it was part of her job responsibility to advise both the CEO and the School Board on a monthly basis of new lawsuits and the status of pending litigation and to render legal opinions and advise to the school system relative to all state and federal legal matters. She argues that claims for damages against the Board are a matter of public concern, that no monetary claim against the Board can be settled without Board approval, and that the Board must notify the public of all such monetary settlements. Thus, Plaintiff asserts that the two employees' claims against the Board, which she investigated, and their subsequent offers of settlement were matters of public concern. According to Plaintiff's amended complaint, she notified the Board members of the claims, against Davis's directives, but was prohibited by Defendant Davis from presenting the settlement offers to the Board. Plaintiff claims that Davis retaliated against Plaintiff for exercising free speech on these matters of public concern. Plaintiff also asserts that Davis prohibited her from faithfully and timely responding to records requests made pursuant to the Louisiana Public Records Act, a task assigned to the Office of General Counsel on February 2, 2001.
Defendants cite Teague v. City of Flower Mound, Texas, 179 F.3d 377, 380-81 (5th Cir. 1999) as providing the proper analysis for determining if the content, form, and context of the speech make it a matter of public concern. Defendants note that, in that case, the Fifth Circuit found that just because there was the "mere insertion of a scintilla of speech regarding a matter of public concern" in speech that is otherwise predominately private in character, the speech would not be afforded the constitutional protection given speech on matters of public concern. Id. Defendants argue that the Fifth Circuit's analysis applies to Plaintiff's speech in this case, because the speech that she claims was of public concern was primarily private in character.
In a related argument, Defendants point to the Fifth Circuit's opinion in Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 373 (5th Cir. 1998), where the Court was concerned with balancing an attorney's ethical duties as in-house counsel with the attorney's right to protest what she believed to be unlawful activity under Title VII. The Fifth Circuit explained that:
In Douglas, in-house counsel was terminated after she disclosed confidential information in a letter directed to her supervisor, three other employees, and a whistle blower officer with Department of Energy, complaining that she had subjected to both racial and sexual discrimination. 144 F.3d at 366-67.
Douglas then filed suit claiming unlawful retaliation under Title VII. The Fifth Circuit held that, because Douglas's conduct constituted a breach of her duties of confidentiality and loyalty to her employer — DynMcDermott, her conduct was not protected activity as a matter of law. Id. at 370.
although the right to oppose unlawful practices under title VII is a right that, independently, is entitled to great weight in the balancing test, the exercise of that right in violation of the profession's ethical duties of confidentiality and loyalty simply will not counter the weight of the employer-client's rights and the duty owed to the legal profession.Id. at 375-76. The Douglas Court held "as a matter of law that conduct that breaches the ethical duties of the legal profession is unprotected under Title VII." Id. at 376.
Defendants urge that the Fifth Circuit's holding supports a finding that Plaintiff's conduct in the instant case, of publicizing and stating in the public record purported confidential attorney-client communications as the basis for her retaliation claims, constitutes a breach of her ethical obligations to her clients and, therefore, falls outside the scope of a viable First Amendment retaliation claim and compels dismissal of that claim.
Defendants make the same argument with respect to Plaintiff's state law whistle blower claim and Title VII claim.
For Plaintiff to state a First Amendment retaliation claim, she must allege four elements: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the employee's interest in speaking outweighs the employer's interest in efficiency; and (4) the speech must have precipitated the adverse employment action. See Teague, 179 F.3d at 380. The primary dispute here is whether Plaintiff can satisfy the second requirement, that her speech involved a matter of public concern.
Whether Plaintiff's speech is a matter of public concern is a legal question. See Rankin v. McPherson, 483 U.S. 378, 386, n. 9, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991). The Fifth Circuit has used two tests to determine whether an employee's speech relates to a public concern, both of which derive from language in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The first test examines the content, form, and context of the statement in order to determine whether it addresses a public matter.Connick, at 147-48. See also Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir. 1994)
The second test is to determine whether a public employee has spoken as a citizen upon matters of public concern, or as an employee upon matters only of personal interest. Connick, 461 U.S. at 147, 103 S.Ct. at 1690. In the latter case, the employee's speech falls outside the parameters of speech involving matters of public concern. Id. In cases of "mixed speech," where the speech may have an element of personal interest on the part of the employee, but as a whole raises issues of public concern, the two tests should be used in conjunction with one another to determine whether it is afforded constitutional protection. Dodds, 933 F.2d at 273.
The Fifth Circuit has articulated three reliable principles involving "mixed speech" cases. First, "the content of the speech may relate to the public concern if it does not involve solely personal matters or strictly a discussion of management policies that is only interesting to the public by virtue of the manager's status as an arm of the government."Kennedy v. Tangipahoa Parish Library Board of Control, 224 F.3d 359, 372 (5th Cir. 2000). Second, speech may be protected even if it is not made to the public, but it relates to a public concern and it is made against the backdrop of public debate. Id. Third, if the speech is related to a public concern, it cannot be made in furtherance of a personal employer-employee dispute. Id.
The instant case appears to fall under the "mixed speech" category, as Plaintiff's speech allegedly involves an issue of public concern with respect to discrimination claims made against the School Board, but apparently was made pursuant to Plaintiff's understanding of her role and duties as General Counsel, rather than as a concerned citizen. There is also some indication that Plaintiff's disclosures to the Board may have been made as a result of her dispute with Defendant Davis regarding her recommendations and investigations of the employees' complaints.
However, the Court finds it difficult to make a conclusive determination based on the pleadings, because Plaintiff has not clearly identified the content, form, or context of the disputed speech. Additionally, without more specific information on what information was disclosed by Plaintiff, it is impossible to determine whether any attorney-client privileged communications were the subject of the disclosures, which might implicate the Fifth Circuit's decision inDouglas. Therefore, the Court concludes that, while there may be some validity to Plaintiff's allegations that her speech involved an issue of public concern, the pleadings, as they stand, do not allow the Court to make a conclusive determination of whether she has stated a viable claim or not. Accordingly, the Court will allow Plaintiff fifteen (15) days in which to amend her complaint to allege more specifically the basis for her First Amendment retaliation claim.
For example, Plaintiff's pleadings do not specify the content of the disclosures or how the disclosures were made to Board members.
IV. Due Process 42 U.S.C. § 1983
Plaintiff asserts that the Level II discharge proceeding, which resulted ultimately in her being discharged, was not held in an objective manner and that Colonel Dowden, who presided over the hearing, did not properly summarize the proceeding in his Factual Findings and Recommendation. Additionally, Plaintiff alleges that Defendants violated her due process rights by revising the personnel policy, so that the two-step discharge procedure would apply to the Office of General Counsel, rather than the three-step process in place when she was hired.
Defendants note that, while the Fifth Circuit has previously determined that the discharge procedure set forth in La. Rev. Stat. § 17:522 constitutes a protected property interest for non-tenured public employees, Samuel v. Holmes, 138 F.3d 173, 176-77 (5th Cir. 1998), the Court did not hold that the Board could never change how it complies with the cited statutory provision.
Louisiana Rev. Stats. § 17:522 and § 17:81.5 do provide Plaintiff with a protected property interest in her continued employment. Samuel, 138 F.3d at 177. Therefore, the Fourteenth Amendment requires that she be given notice and an opportunity to be heard prior to termination. Id. (citing Jones v. Orleans Parish Sch. Bd., 679 F.2d 32, 36 (5th Cir.), modified on other grounds, 688 F.2d 342 (5th Cir. 1982)). In Samuel, the Fifth Circuit found that the plaintiff had alleged sufficient facts to state a violation of his due process rights, because the plaintiff asserted that he was informed of the termination proceedings twenty minutes before the hearing, and did not have the opportunity to introduce evidence, call witnesses, or contest the accusations against him. Samuel, 138 F.3d at 178. But see Brown v. Texas A M University, 804 F.2d 327 (5th Cir. 1986) (noting that the university's failure to comply with its own pretermination regulations did not by itself amount to a violation of the Due Process Clause, especially as the plaintiff in that case was given sufficient notice and opportunity to contest the charges prior to termination, so as to satisfy constitutional requirements).
Unlike the plaintiff in Samuel, Plaintiff in this case was given adequate notice of the discharge proceedings against her. Davis notified her by letter of the charges he was bringing against her on March 1, 2001. Davis held a Level I Discharge Conference with Plaintiff on March 9, 2001. A second Level I conference with Plaintiff was held on May 28, 2001, and formal charges were delivered to Plaintiff on June 4, 2001. The Level II discharge proceeding was conducted before the Executive Director of Facilities, Colonel F.G. Dowden, on June 28, 2001. Plaintiff's complaint alleges that witnesses were called and that the proceeding lasted 9 1/2 hours. Despite the fact that Davis initiated, and the Board adopted, a change in the number of steps in the discharge process for the General Counsel while the proceedings against Plaintiff were ongoing, Plaintiff has not stated a viable claim that she was not afforded adequate notice and opportunity under the Fourteenth Amendment's Due Process Clause.
Plaintiff also claims that Colonel Dowden's final recommendation and conclusion was arbitrary and capricious and not supported by the evidence at the Level II hearing. The Constitution, however, does not require evidence that logically precludes any conclusion but the one reached after a disciplinary hearing. See superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 2755, 86 L.Ed.2d 356 (1985). Instead, due process requires only that there be some evidence to support the findings made. Id. In this case, while Plaintiff has alleged that Colonel Dowden's findings ignored much of what had been presented in her favor and were arbitrary and capricious, she does not claim that there was no evidence to support his findings. For these reasons, the Court agrees with Defendants that Plaintiff's due process claims should be dismissed for failure to state a claim.
V. Whistle Blower La. Rev. Stat. § 42:1169
Plaintiff's complaint also alleges that Defendants retaliated against Plaintiff, in violation of La. Rev. Stat. § 42:1169, because she reported what she reasonably believed to be violations of federal and state law. Defendants do not address this claim in any detail in their Motion to Dismiss, and the Court finds it difficult to ascertain the specifics of the claim. However, because it appears that La. Rev. Stat. § 42:1169 may be implicated by some of the facts alleged by Plaintiff, the Court will allow Plaintiff to amend her petition on this claim before making a final determination as to whether she has stated a claim upon which relief may be granted.
VI. Intentional Infliction of Emotional Distress
In her amended complaint, Plaintiff alleges she was subjected to harassment, retaliation, and a hostile work environment, and that as a result, she has suffered mental anguish, financial loss, and emotional distress. She asserts that Defendant Davis's complained of conduct was extreme and outrageous. Plaintiff also claims that the Board knew or should have known of his activities and that it negligently hired, trained, and supervised him. Defendants argue that Plaintiff's pleadings fall short of alleging any necessary facts for the finding of an intentional tortious act by any of the Defendants.
Specifically, Plaintiff alleges that Davis had her "escorted" from the building in front of her colleagues, brought false charges against her, instructed her staff to have no contact with her, stripped her of all administrative authority, redistributed the Office of General Counsel's furniture, fixtures, and supplies, including Plaintiff's personal items, and placed her on administrative leave.
Louisiana, unlike some states, recognizes a cause of action for intentional infliction of emotional distress in a workplace setting, but has limited the cause of action to cases which involve a pattern of deliberate, repeated harassment over a period of time. See Nicholas v. Allstate Ins. Co., 99-2522, p. 15 (La. 8/31/00), 765 So.2d 1017, 1027. The distress suffered by the employee must be more than a reasonable person could be expected to endure, and the employer's conduct must be intended or calculated to cause severe emotional distress, not just some lesser degree of fright, humiliation, embarrassment or worry. See id. After considering Plaintiff's complaint and the applicable law, the Court concludes that Plaintiff has not made sufficient allegations to state a viable claim for intentional infliction of emotional distress in the workplace under Louisiana law. Accordingly, that claim is dismissed.
See. e.g., Smith v. Quachita Parish Sch. Bd., 29, 873 (La.App. 2d Cir. 9/24/97), 702 So.2d 727, writ denied, 97-2721 (La. 1/16/98), 706 So.2d 978 (holding that the wrongful demotion and transfer of a teacher within the school system, though causing emotional and psychological distress, did not constitute extreme and outrageous conduct); Stewart v. Parish of Jefferson, 95-407 (La.App. 5th Cir. 1/30/96), 668 So.2d 1292, writ denied, 96-0526 (La. 4/8/96), 671 So.2d 340 (holding that intentional infliction of emotional distress was not shown, even though a supervisor maintained two-year's harassment in which he questioned the worker's personal life, increased the workload, and pressured the employee to accept a demotion which ultimately led to the employee's termination); Beaudoin v. Hartford Acc. Indem. Co., 594 So.2d 1049 (La.App. 3d Cir.), writ denied, 598 So.2d 356 (La. 1992) (holding that even if the employee felt singled out for abuse, a supervisor's eight-month undertaking in which he shouted at an employee, cursed her, called her names (dumb, stupid, and fat), commented about the inferiority of women, and falsely accused her of making mistakes did not constitute extreme and outrageous conduct).
Compare Bustamento v. Tucker, 607 So.2d 532 (La. 1992) (holding that almost daily improper sexual comments and advances, threatened physical violence, and an attempt to run over the plaintiff with a forklift constituted extreme and outrageous conduct); Walters v. Rubicon, Inc., 96-2294 (La, App. 1st Cir. 12/29/97), 706 So.2d 503 (holding that extreme and outrageous conduct was shown when plaintiff's supervisors continuously abused plaintiff verbally, ordered him to ignore company policy which he saw as illegal, harassed him with phone calls, endangered him and his son when a supervisor cut in front of him in traffic, and another supervisor pointed his hand at him in the form of a gun and mouthed "pow").
VII. Preemption
Defendants argue that Plaintiff alleges the same general facts to support her all her claims and that the Fifth Circuit has held that consideration of alternative remedies under the civil rights statutes is necessary only if their violation can be made out on grounds different than those available under Title VII. See Parker v. Mississippi State Dept. of Pub. Welfare, 811 F.2d 925, 927, n. 3 (5th Cir. 1987). Defendants argue that rationale applies to the Plaintiff's ADA claims as well, and therefore, that Plaintiff's § 1983 First Amendment and Due Process claims are preempted.
Plaintiff, however, has in fact alleged distinct factual bases for her claims. First, Plaintiff asserts that she was retaliated against in violation of Title VII and the ADA for engaging in protected conduct by investigating the employee complaints. Plaintiff's § 1983 claims are based on Davis's retaliation against her for exercising her First Amendment Rights in making certain public disclosures regarding the employee complaints and for violating her due process rights in the discharge process. While Plaintiff's § 1983 claims are based on some of the same facts as her ADA claim, they also are premised on some wholly separate allegations and require Plaintiff to demonstrate entirely different elements in order to prevail. Thus, Defendants' argument is without merit.
VIII. Qualified Immunity
Defendants also argue that all of Plaintiff's claims against Davis in his personal capacity should be dismissed pursuant to the qualified immunity doctrine, because Plaintiff has not sufficiently plead that her rights asserted were clearly established, much less that Davis should have known that he was violating those rights.
Initially, the Court notes that the only claim to which the qualified immunity doctrine might apply is Plaintiff's First Amendment claim, as the Court has already determined that Plaintiff cannot sue Defendant Davis individually under the ADA and the Court has dismissed Plaintiff's other claims, excepting her claim under the Louisiana whistle blower statute, to which the qualified immunity doctrine does not apply. See Samuel v. Holmes, 138 F.3d 173, 179 (5th Cir. 1998) (finding no authority granting qualified immunity, or even acknowledging its availability, under Louisiana's whistle blower statute and determining that qualified immunity appears inconsistent with the statute's purpose).
Second, to determine whether qualified immunity provides a defense, the Court must consider (1) whether Plaintiff has alleged a violation of a clearly established right, and (2) whether Defendant's conduct was objectively reasonable in light of the clearly established law at the time of he alleged violation. Kennedy, 224 F.3d at 377. The Court concludes that it cannot make the determination of whether Defendant Davis is protected by the qualified immunity doctrine until after Plaintiff amends her complaint with respect to her First Amendment retaliation claim.
Typically, when a public official pleads the affirmative defense of qualified immunity, the Court requires the plaintiff to reply to that defense in detail, pursuant to Fed.R.Civ.P. 7(a). See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). However, in this case, as the Plaintiff is required to file an amended complaint within fifteen days, she can address the issue of qualified immunity therein by making the necessary allegations in response to Defendants' argument.
IX. Attorney-Client Privileged Information and Defendants' Motion to Strike and/or Seal the Record
Defendants consistently argue that all Plaintiff's claims should be dismissed pursuant to the Fifth Circuit's opinion in Douglas v. DynMcDermott, supra. However, as noted above, the court in Douglas was faced with the situation where the plaintiff's Title VII retaliation claims themselves were based on her disclosure of privileged communications to outside parties. In the instant case, Defendants do not appear to argue that the disclosures made by Plaintiff, which resulted in her eventual termination, constituted a breach of attorney-client privilege. Rather they argue that her disclosures of privileged information to the Court in the instant proceeding violate her obligations to her former clients.
However, Rule 1.6(2) of Louisiana's Rules of Professional Conduct provide that "[a] Lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . ." Thus far, any disclosures Plaintiff has made to the Court appear to have been reasonably necessary to establish her claims. While Defendants also move to strike from the record any allegations disclosing confidential communications, they do not point to any specific information as being wholly unnecessary to Plaintiff's claims. Rather, Defendants simply request that the Court dismiss Plaintiff's entire suit because she has provided the Court with privileged and confidential information.
Defendants have alternatively moved for the Court to seal the record to protect the confidentiality of any disclosures. They note that the Fifth Circuit in Douglas recognized that sealing the record might be an appropriate method of protecting confidences in a case such as this:
Even when revealing confidences falls within an exception to the ethical rules, there are appropriate means for revealing confidences that limit the dissemination of information disclosed. They include requesting in camera review, requesting that the court seal the record in any proceedings, and obtaining permission to prosecute without revealing the true name of either party.144 F.3d at 375, n. 12.
However, the Court is inclined to find that sealing the entire record in the instant case may be an overly broad remedy, especially in light of the fact that some information has already been reported to the public. Before making a final decision on the issue, the Court will allow the parties fifteen (15) days in which to file memoranda with the Court on the question of whether sealing the record is appropriate in this case. Specifically, the parties should address whether the Court should consider (1) sealing the entire record; (2) sealing portions of the existing record; and/or (3) sealing particular documents on a document-by-document basis upon request of a party.
CONCLUSION
Accordingly, Defendants' Motion to Dismiss (Rec. Doc. 13) is GRANTED in part, and Plaintiff's Title VII, due process and intentional infliction of emotional distress claims are DISMISSED with prejudice. Additionally, the motion is GRANTED as to Plaintiff's ADA claims against Defendant Davis individually, and those claims are also DISMISSED with prejudice. Defendants' Motion is DENIED with respect to Plaintiff's ADA retaliation claim against the School Board. The Court reserves judgment on Plaintiff's First Amendment retaliation claim, Louisiana whistle blower claim, and Defendant Davis's qualified immunity argument, allowing Plaintiff fifteen (15) days from today's date in which to amend her complaint. Finally, while the Court also DENIES Defendant's Motion to Strike, the Court ORDERS the parties to submit memoranda to the Court on the issue of sealing the record no later than fifteen (15) days from today's date.