Opinion
Civil Action Number: 01-1709 Section: "J"(5)
April 1, 2002
ORDER AND REASONS
Presently before the Court is the motion to dismiss of defendants, Eliana DeFrancesch and the St. John the Baptist Parish Clerk of Court's Office, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and plaintiff's opposition thereto. (Rec. docs. 11, 14, 17, 20, 22, 30). For the reasons that follow, it is ordered that defendants' motion is granted in part and denied in part.
On January 1, 1975, Marva Lumar, plaintiff herein, was hired as a clerk by Harold Montegut, the then Clerk of Court for St. John the Baptist Parish. She continued in that employ throughout Montegut's term in office, as well as that of his successor/son, Harold Montegut, Jr., ultimately working herself up to the position of Civil Division Supervisor. In January of 2000, Montegut, Jr. lost his bid for re-election to defendant, Eliana DeFrancesch, with the latter to assume office on July 1, 2000.
In June of 2000, plaintiff allegedly informed her immediate supervisor that she was taking a leave of absence for health reasons in accordance with the Family and Medical Leave Act ("FMLA"). (Rec. doc. 3, ¶ 11). Plaintiff states that her employer assured her that she would be able to return to her job after her FMLA leave had expired. (Id.) On July 1, 2000, plaintiff alleges that she was "fired" by DeFrancesch upon DeFrancesch assuming office. (Rec. doc. 3, ¶ 12).
Plaintiff subsequently filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), claiming that she was denied sick leave pay and that the defendants had violated the provisions of the FMLA and otherwise subjected her to discriminatory working conditions. (Rec. doc. 3, ¶ 33). On March 9, 2001, the EEOC sent plaintiff a "Dismissal and Notice of Rights" letter, advising her that it was closing its file on the charge because the "[c]harging party is a political appointee." (Rec. doc. 1, attachment).
On June 5, 2001, plaintiff, through counsel, filed the instant lawsuit against defendants, Eliana DeFrancesch, individually and in her official capacity; the St. John the Baptist Parish; Nickie Monica, President of St. John the Baptist Parish; and the St. John the Baptist Parish Clerk of Court's Office. (Rec. doc. 1). Plaintiff subsequently amended her complaint to drop her claims against St. John the Baptist Parish and Nickie Monica. (Rec. doc. 3). Plaintiff's amended complaint alleges that she was fired by defendants as a result of age and race discrimination. Plaintiff also alleges that the defendants retaliated against her on account of her medical and physical condition and that she was treated differently from other similarly situated employees with respect to sick leave, family leave, and termination. (Id). On November 16, 2001, defendants filed the instant motion, arguing that plaintiff's complaint should be dismissed because it fails to state a claim upon which relief can be granted. (Rec. doc. 11). Oral argument was heard on December 19, 2001 and opposition, reply, and supplemental memoranda are now before the Court. (Rec. docs. 14, 17, 18, 20, 22, 30).
Defendants now move for the dismissal of plaintiff's lawsuit under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(6) allows for the dismissal of a complaint if it fails "to state a claim upon which relief can be granted." A motion to dismiss under Rule 12(b) (6) is viewed with disfavor and is rarely granted. Lowrey v. Texas A M University System, 117 F.3d 242, 247 (5th Cir. 1997). In ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and must view the facts in the light most favorable to the plaintiff. Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). Dismissal is warranted if "it appears certain that the plaintiff cannot prove any set of facts in support of [her] claim that would entitle [her] to relief.'" Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994)). In deciding whether dismissal is warranted, the Court need not accept conclusory allegations in the complaint as true. See Kaiser Aluminium Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729 (1983). In ruling on such a motion, the Court cannot look beyond the pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229, 120 S.Ct. 2659 (2000).
Because the parties have attached materials outside the pleadings to their respective memoranda, the Court has the discretion to convert defendants' motion to one for summary
judgment under Rule 56, Fed.R.Civ.P. Ware v. Associated Milk Producers, Inc., 614 F.2d 413, 414-15 (5th Cir. 1980). However, given the relative infancy of this case, the Court declines to so convert defendants' motion at this point in time. Brennan v. National Telephone Directory Corporation, 850 F. Supp. 331, 335 (E.D.Pa. 1994); Brug v. The Enstar Group, Inc., 755 F. Supp. 1247, 1251 (D. Del. 1991). As such, the Court is unable to consider the parties' materials in addressing defendants' motion.
Defendants argue that plaintiff's complaint fails to state a claim against defendants, Eliana DeFrancesch, in her official and individual capacities, and the St. John the Baptist Parish Clerk of Court's Office. Defendants assert that the Clerk's Office lacks the capacity to be sued, that plaintiff was not an "employee" under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, or the FMLA, 29 U.S.C. § 2601 et seq., because she was part of an elected official's "personal staff", and that Title VII and the FMLA do not apply to states, their agencies, or political subdivisions. Defendants also argue that plaintiff's claims under 42 U.S.C. § 1981 and the Fourteenth Amendment to the U.S. Constitution must fail because plaintiff was an at-will employee who did not have an employment contract. In addition, defendants argue that plaintiff has no claim under 42 U.S.C. § 1983 because defendants' actions were not intentional or made with deliberate or callous indifference to plaintiff's constitutional rights.
Defendants further contend that DeFrancesch, as a Clerk of Court, functions as an arm of the State of Louisiana and is therefore entitled to sovereign immunity under the Eleventh Amendment to the U.S. Constitution. Defendants also argue that the Clerk of Court is entitled to absolute "quasi-judicial" immunity afforded to judges and to officers of the court. Finally, DeFrancesch argues that any claims being asserted against her in her individual capacity are barred by the doctrine of qualified immunity. Defendants' arguments will be addressed in turn.
Defendants first argue that the St. John the Baptist Parish Clerk's Office lacks the capacity to be sued. Plaintiff has conceded that point. (Rec. doc. 14, p. 4). Accordingly, the Clerk's Office will be dismissed from this case.
Defendants next argue that plaintiff's complaint fails to state a claim under the FMLA or Title VII. Plaintiff counters by arguing that she was an employee under § 2611 of the FMLA and that DeFrancesch violated the FMLA by denying her sick leave pay and for firing her for taking leave for health reasons.
Under the FMLA, the definition of "employee" is given the same meaning as that set forth in § 203 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. 29 U.S.C. § 2611 (3). In enacting the FMLA, legislative history reveals that Congress was aware of the breadth of the FLSA definition of employee and purposely chose to adopt that definition. Duckworth v. Pratt Whitney, Inc., 152 F.3d 1, 7 (1st Cir. 1998). Moreover, the FMLA's use of the FLSA definition of employee was plainly meant to incorporate the FLSA's list of exceptions. Id. Included in those exceptions is the so-called personal staff exemption set forth in 29 U.S.C. § 203 (e)(2)(C). A court considering the FLSA personal staff exemption may be guided by cases interpreting the analogous exemption to Title VII. Rodriguez v. Township of Holiday Lakes, 866 F. Supp. 1012, 1021 (S.D. Tex. 1994).
Section 203(e)(2)(C) of the FLSA provides that the term "employee" means any individual employed by an employer. In the case of an individual employed by a public agency, such term means any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than an individual who is not subject to civil laws and who is selected by the holder of a public office of a political subdivision to be a member of his or her personal staff.
Plaintiff admits that she was a non-classified employee who was not covered by civil service, who was a member of the Clerk of Court's personal staff, and who reported directly to the Clerk of Court. (Rec. doc. 14, p. 9). Because plaintiff was part of the Clerk of Court's personal staff, she falls within the personal staff exception under the FMLA, as defined in § 203(e)(2)(C) of the FLSA, and is not entitled to protection under the FMLA. Plaintiff's claim under the FMLA is therefore dismissed.
For similar reasons, plaintiff also has no claim against DeFrancesch under Title VII because "Title VII relieves employers from liability for decisions affecting members of a personal staff." Oden v. Oktibbeha County, Mississippi, 246 F.3d 458, 466 (5th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 342 (2001) (citing 42 U.S.C. § 2000e(f)). The EEOC concluded as much when disposing of plaintiff's charge of discrimination. (Rec. doc. 1, attachment). Therefore, plaintiff's claim under Title VII is dismissed.
The Court's resolution of plaintiff's FMLA and Title VII claims render's moot defendants' argument that plaintiff has failed to exhaust state remedies as to any claims under the FMLA or the Age Discrimination in Employment Act ("AEDA"), 29 U.S.C. § 621 et seq. (Defendants' Memo at pp. 18-20). Plaintiff has acknowledged that she is not asserting a claim under the ADEA or under the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (Rec. doc. 22, p. 7).
The next basis of defendants' motion is that plaintiff cannot maintain an independent cause of action under 42 U.S.C. § 1981 and the Fourteenth Amendment to the U.S. Constitution because she was an at-will employee and did not have a contract of employment with the Clerk's Office.
Section 1981 guarantees that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . ." 42 U.S.C. § 1981 (a).
Under Louisiana law, an employee without an employment contract may be terminated at any time for any reason or no reason at all. LSA-C.C. Art. 2747; Finkle v. Majik Market, 628 So.2d 259, 261-62 (La.App. 5th Cir. 1993). However, in spite of being subject to at-will termination, an employee still stands in a contractual relationship with his employer and may maintain a cause of action under § 1981. In Fadeyi v. Planned Parenthood Association of Lubbock, Inc., 160 F.3d 1048 (5th Cir. 1998), the Fifth Circuit held that an employee subject to at-will termination nevertheless had a "contract" with his employer, as required to maintain an action under § 1981. The court reasoned that "Congress could not have meant to exclude at-will workers from the reach of § 1981, as to do so would be to allow use of the ubiquitous at-will doctrine "as leverage to incite violations of our state and federal laws.'" Id. at 1052 (quoting Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985)). The better view is that, irrespective of being subject to at-will termination, such an employee stands in a contractual relationship with his employer and thus may maintain a cause of action under § 1981. Id. at 1049-50.
Notwithstanding that plaintiff was an at-will employee, she is still protected by § 1981 because an at-will employee is still a contract employee for purposes of § 1981. Therefore, plaintiff's employment-at-will status does not, taken alone, bar her § 1981 claim.
Although plaintiff is not barred from bringing a § 1981 claim on account of her at-will status, she must assert that cause of action via § 1983. Section 1981 imposes no personal liability on elected officials for discrimination in the terms and conditions of local government employment contracts. Oden, 246 F.3d at 464-65. In Jett v. Dallas Independent School District, 491 U.S. 701, 731, 109 S.Ct. 2702, 2721 (1989), the Supreme Court held that § 1981 did not provide a separate, independent cause of action against local government entities. Rather, § 1983 provides the exclusive remedy against persons acting under color of state law. Oden, 246 F.3d at 463-64. Under Louisiana law, the Clerk of Court is a public official who has the capacity to be sued under § 1983. Gegenheimer v. Galan, 920 F.2d 307, 310 (5th Cir. 1991). Section 1983 does not create any substantive rights, but instead was designed to provide a mechanism for remedying violations of statutory and constitutional rights found elsewhere. Jackson v. City of Atlanta, Texas, 73 F.3d 60, 63 (5th Cir. 1996), cert. denied, 519 U.S. 818, 117 S.Ct. 70 (1996) (citing Pennhurst State School Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545-46 (1981)). Plaintiff, therefore, can assert her § 1981 claim against DeFrancesch only through § 1983. Oden, 246 F.3d at 462.
Title 42 U.S.C. § 1983 provides, in pertinent part, that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
At any rate, the elements of employment discrimination under § 1981, § 1983, and Title VII are the same. Wallace v. Texas Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996).
Next, defendants argue that the Clerk of Court functions as an arm of the state for purposes of the Eleventh Amendment and is therefore entitled to sovereign immunity.
The Eleventh Amendment provides that "[t]he Judicial Power of the United States shall not be construed to extend to. any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
The Eleventh Amendment erects a jurisdictional bar against individuals bringing suit against non-consenting states in federal court. Edelman v. Jordan, 415 U.S. 651, 677-678, 94 S.Ct. 1347, 1362-63 (1974) (citing Ford Motor Company v. Department of the Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351 (1945)). In Louisiana, however, the Clerk of Court is a political official of the local governmental subdivision wherein his office lies, namely, the parish. Gegenheimer, 920 F.2d at 311 (citingBulot v. Justice, 552 So.2d 1344, 1346-47 (La.App. 5th Cir. 1989), writ denied, 558 So.2d 1124 (La. 1990)). Even though political subdivisions such as parishes exist at the behest of the state, the Eleventh Amendment affords them no protection. See Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 313, 110 S.Ct. 1868, 1877, 109 L.Ed.2d 264 (1990) (Brennan, J., concurring in part and concurring in judgment); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 400, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979). Because the Clerk of Court is a parish, as opposed to a state, official, she is not entitled to the protection of the Eleventh Amendment.
Defendants next argue that Clerk of Court DeFrancesch is entitled to absolute "quasi-judicial" immunity for her acts taken with respect to plaintiff's employment.
In determining whether absolute immunity applies, the Court employs a "functional approach" which looks to the nature of the official function, not to the identity of the official actor or to her employment title. Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 2613 (1993). Although judges are absolutely immune for damages for judicial or adjudicatory functions, they are not immune for acts of an administrative, legislative, or executive nature. Thus, the Supreme Court has held that judges are not absolutely immune from § 1983 liability for demoting and discharging a court employee because such acts were administrative functions. Forrester v. White, 484 U.S. 219, 108 S.Ct. 538 (1988). See also Meek v. County of Riverside, 183 F.3d 962, 966-68 (9th Cir.), cert. denied, 528 U.S. 1005, 120 S.Ct. 499 (1999); Kurowski v. Krajewski, 848 F.2d 767, 773 (7th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 309 (1988).
If judges are not absolutely immune from § 1983 liability for demoting and discharging court employees, it follows that clerks of court similarly enjoy no such immunity with respect to those employment decisions. Plaintiff makes no allegation that DeFrancesch's acts were taken at the specific direction of any state court judge. Absolute immunity is inapplicable here.
Defendants next argue that plaintiff's civil rights claims should be dismissed because the Clerk of Court is entitled to qualified immunity, in her individual capacity, for actions taken in good faith.
Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). The examination of a claim for qualified immunity involves a two-step inquiry. The first step is whether the plaintiff has alleged the violation of a clearly established constitutional right. Siegert v. Gilley, 500 U.S. 226, 231, 111 S. Ct. 1789, 1793 (1991). "The second step is to `decide whether the defendant's conduct was objectively reasonable' in light of legal rules clearly established at the time of the incident." Jones v. City of Jackson, 203 F.3d 875, 879 (5th Cir. 2000) (quoting Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993)).
Plaintiff alleges, inter alia, that she was intentionally discriminated against on the basis of race in violation of § 1981 and § 1983 and her equal protection rights. She has, therefore, sufficiently alleged the violation of a clearly established constitutional right. The right to be free from racial discrimination in employment at the hands of a state actor was clearly established at the time of the incident in question.See, e.g., Jett, supra; Wallace v. Texas Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996). However, whether DeFrancesch's actions were objectively reasonable is something that cannot be determined on the basis of the record that is currently before the Court on the defendants' motion to dismiss. Accordingly, defendants' motion must be denied on the issue of qualified immunity.
Finally, the Court will address several other ancillary arguments raised in defendants' motion. They argue, for example, that a plaintiff cannot recover damages for mental anguish or emotional distress under Title VII, the FMLA, the ADEA, or the Civil Rights Act. (Rec. doc. 11, p. 20). of the four cases cited by defendants in support of that proposition, three hold only that damage to reputation, standing alone, is not compensable under § 1983. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155 (1976); Thomas v. Kipperman, 846 F.2d 1009 (5th Cir. 1998); Wade v. Goodwin, 843 F.2d 1150 (8th Cir.), cert. denied, 488 U.S. 854, 109 S.Ct. 142 (1988). The fourth case holds that a plaintiff cannot seek emotional distress damages under state law where recovery is allowed under the ADA, the Rehabilitation Act, and the Maine Human Rights Act. Kilroy v. Husson College, 959 F. Supp. 22, 23-24 (D. Me. 1998).
As noted earlier, plaintiff has no valid claim under Title VII or the FMLA and is not asserting a claim under the ADEA or one for defamation under § 1983. She is, however, asserting a race-based discrimination claim under § 1983 and under § 1981 via § 1983. Clerks of Court are amenable to suit under § 1983 which provides the exclusive remedy against persons acting under color of state law. Oden, 246 F.3d at 463-64; Gegenheimer, 920 F.2d at 310. Accordingly, the Court declines to limit the types of damages, if any, plaintiff may recover if proven.
The Court thus need not decide if DeFrancesch was plaintiff's "employer" under Title VII, the FMLA, or the ADEA, or whether she otherwise complied with the notice requirements of the FMLA. (Rec. doc. 11, pp. 35-37).
For the reasons given above, IT IS ORDERED that the defendants' motion to dismiss pursuant to Rule 12(b)(6) is GRANTED IN PART and DENIED IN PART. !!