Broussard v. Jazz Casino Co.
Broussard v. Jazz Casino Co.
Opinion of the Court
ORDER AND REASONS
Before the Court is Defendant Jazz Casino’s Motion to Dismiss (Doc. 10). For the following reasons, the Motion is GRANTED IN PART.
BACKGROUND
Defendant Jazz Casino Company, LLC (“Jazz Casino”) hired Plaintiff Deanna Broussard as a Senior Executive Host at Harrah’s Casino in April 2006. On May 14, 2014, Jazz Casino discharged' Plaintiff for alleged misconduct. Thereafter, Plaintiff, a sixty-five-year-old woman, filed a charge of discrimination under the Age Discrimination in Employment Act (ADEA) with the Equal Employment Opportunity Commission (EEOC). In her EEOC charge, Plaintiff claimed that she was discriminated against because of her age and “discharged and replaced with someone younger.” The charge also alleged that her manager, Defendant Matthew Robicheaux, made remarks about her age and alleged that she had poor hearing. Additionally, it alleged that another supervisor, Defendant Cain Myers, repeatedly asked if she was going to retire soon. On September 23, 2015, Plaintiff received a right to sue letter from the EEOC.
On December 20, 2015, Plaintiff brought this suit, asserting an ADEA claim, a state law employment discrimination claim, a hostile work environment claim, a defamation claim, a breach of contract claim, and an intentional infliction of emotional distress claim, as well as claims under “all other applicable” federal and state laws.
Defendant Jazz Casino has filed the instant motion to dismiss many of Plaintiffs claims. This Court will address each argument in turn.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts “to state a claim for relief that is plausible on its face.”
LAW & ANALYSIS
This Court will address each of Movant’s arguments for dismissal in turn.
I. Hostile Work Environment Claim
Movant first argues that Plaintiffs hostile work environment claim should be dismissed for failure to exhaust her administrative remedies. Movant alleges that Plaintiffs EEOC charge does not support a hostile work environment claim. Plaintiffs Complaint adds additional facts that were not included.in her EEOC charge. Specifically, Plaintiffs Complaint adds allegations of discriminatory incidents involving two additional supervisors not mentioned in her EEOC charge—West-burg and Real. Movant argues that Plaintiff has not exhausted her administrative remedies as to hér hostile work environment claim because these additions are beyond the scope of the EEOC charge. Movant also argues that because these allegations were not included in the EEOC charge, they are now are time-barred.
Under the ADEA, an employee may seek judicial relief but must first exhaust her administrative remedies with the EEOC.
Plaintiffs EEOG charge alleges that her supervisors “repeatedly” made comments regarding her age and even persisted after she asked them to-stop.
II. Defamation Claim
Movant next moves for dismissal of Plaintiffs defamation claim, arguing that Plaintiff has failed to allege enough facts to meet the four elements required for a defamation claim under Louisiana law. Movant argues that the Plaintiffs claim amounts merely to a disagreement with the Defendants’ legitimate, non-dis-criminatory reason for her discharge. Under Louisiana law,
[flour elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) [a] resulting injury. The fault requirement is generally referred to in the jurisprudence as malice, actual or implied.”14
“[A] statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, [or] deter others from associating or dealing with the person.... ”
This Court holds that the allegations of Plaintiffs Complaint áre sufficient to state a claim for defamation. In her Complaint, Plaintiff contends that Defendants alleged that she was terminated for “misconduct” when she failed to meet certain sales or financial performance goals.
III. Breach of Contract Claim
Movant next argues that Plaintiff has. failed to state a cause of action for breach of contract because her Complaint does not identify any specific obligation or failure to perform on its part. In order to state a valid claim for breach of contract under Louisiana law, Plaintiff must allege: (1) an undertaking of an obligation to perform, (2) a failure to perform the obligation, and (3) damages resulting from the failure to perform.
Plaintiffs Complaint claims Defendant Jazz Casino entered into an employment contract with her that guaranteed Plaintiffs employment until June 1, 2014, and that it breached that contract by terminating her a few weeks earlier on May 14, 2014. Plaintiff alleges that she was entitled to remain employed until the expiration of her contract and that she anticipated that her contract would be renewed. She alleges that her termination resulted in out-of-pocket expenses, such as professional license renewal fees. This Court holds that Plaintiffs allegations are sufficient to state a claim for breach of contract. Plaintiffs- Complaint alleges that Movant was obligated by the employment contract to maintain her employment until June 1, that it failed to do so by terminating her earlier, and that she suffered damages caused by her early termination;
iy. Intentional Infliction of Emotional Distress Claim
Movant next seeks dismissal of Plaintiffs Intentional Infliction of Emotional Distress (“IIED”) claim. Under Louisiana law,
in order to recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.23
V. Other Claims
Finally, Movant argues that the Complaint’s references to claims under “all other applicable” federal and state laws should be dismissed. It also argues that Plaintiffs claim under Louisiana Revised Statute § 23:1006, which was repealed in 1997, should be dismissed. It is well settled that “[c]omplaints are for the purpose of pleading facts, not law.”
CONCLUSION
For the foregoing reasons, Defendant Jazz Casino’s Motion to Dismiss is GRANTED IN PART. Plaintiffs IIED claim is DISMISSED, and she is granted leave to amend this claim -within 20 days of this Order to the extent that she can remedy the deficiencies identified herein.
New Orleans, this 14th day of June, 2016.
. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. Id.
. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
. Id.
. Lormand, 565 F.3d at 255-57.
. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
. Walton-Lentz v. Innophos, 476 Fed.Appx. 566, 569 (5th Cir. 2012).
. Id.
. Harris v. State Farm Fire & Cas. Ins. Co., 178 F.Supp.2d 680, 689 (W.D.La. 2001) (quot
. Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)).
. McClain v. Lufkin Industries, Inc., 519 F.3d 264, 273 (5th Cir. 2008).
. Doc. 10-2, p. 2.
. Lorenzo v. State Farm Mut. Auto. Ins. Co., 983 F.Supp.2d 852, 856 (E.D.La. 2013).
. Kennedy v. Sheriff of E. Baton Rouge, 935 So.2d 669, 674 (La. 2006).
. Carlisle v. Sotirin, No. 04-1549, 2005 WL 78938, at *5 (E.D.La. Jan. 11, 2005) (quoting Costello v. Hardy, 864 So.2d 129, 142 (La. 2004)).
. Doc. 1, p. 10.
. Doc. 1.
. See Costello v. Hardy, 864 So.2d 129, 142 (La. 2004) ("We likewise find that the statements were published [in the plaintiff’s petition], since any- communication to a third party, absent a privilege, absolute or qualified, is considered a publication.”)
. Favrot v. Favrot, 68 So.3d 1099, 1109-10 (La.App. 4 Cir. 2011) (citing Jackson Joint Venture v. World. Constr. Co., Inc., 499 So.2d 426, 427 (La. App. 4 Cir. 1986)); see also Smoothie King Franchises, Inc. v. Southside Smoothie & Nutrition Center, Inc., No. 11-2002, 2012 WL 630010, at *4 (E.D.La. 2012).
. Doc. 10-1, p. 11.
. In its reply, Movant raises two. additional arguments seeking dismissal of Plaintiff’s defamation claim: (1) that the alleged publication is subject to a qualified privilege, and (2) that Plaintiff's defamation claim is prescribed. However, ‘‘[i]t is the practice of [the Fifth Circuit] and the district courts to refuse to consider arguments raised for the first time in reply briefs." Gillaspy v. Dall. Indep. Sch. Dist., 278 Fed.Appx. 307, 315 (5th Cir. 2008). Accordingly, this Court declines to address Movant’s new arguments.
. White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991).
. Doc. 10-1, p. 10.
. Tate v. La. Dept. of Transp. and Dev., No. 11-1212, 2013 WL 796015, at *21 (E.D.La. Mar. 4, 2013) (citing Bertaut v. Folger Coffee Co., No. 06-2437, 2006 WL 2513175, at *3-4 (E.D.La. Aug. 29, 2006)).
. Jetco Elec. Indus. v. Gardiner, 325 F.Supp. 80, 84 (S.D.Tex. 1971).
. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (emphasis added).
. Id. at 555, 127 S.Ct. 1955.
. Act of July 15, 1997, 1997 La. Sess. Law Serv. Act 1409.
Reference
- Full Case Name
- Deanna BROUSSARD v. JAZZ CASINO CO. LLC
- Cited By
- 1 case
- Status
- Published