BONNIE M. O’DANIEL v. INDUSTRIAL SERVICE SOLUTIONS; PLANT-N-POWER SERVICES, INCORPORATED; TEX SIMONEAUX, JR.; CINDY HUBER
No. 18-30136
United States Court of Appeals, Fifth Circuit
April 19, 2019
Before JONES, HAYNES, and OLDHAM, Circuit Judges.
Plaintiff-Appellant Bonnie O’Daniel (“O’Daniel”) sued her former employers Defendants-Appellees Industrial Service Solutions (“ISS”), Plant-N-Power Services (“PNP”), Tex Simoneaux, Jr. (“Simoneaux”), and Cindy Huber (“Huber”) for firing her allegedly because of “the Plaintiff’s sexual orientation [heterosexual] and Ms. Huber’s reaction to the Plaintiff’s pr[o]-heterosexual speech.” The magistrate judge, acting by consent, dismissed her complaint pursuant to
I. BACKGROUND
O’Daniel’s complaint centers on her employers’ response to a Facebook post she made that ultimately led to her dismissal. We recite the facts as pled in O’Daniel’s complaint.
O’Daniel began working in the Louisiana office of PNP in 2013 as the manager of PNP’s human resources department. Simoneaux and Huber were part owners of PNP, and when PNP combined with ISS, Huber became President and Simoneaux became Vice President of Eastern Operations. During her time with PNP, an employment agency, O’Daniel alleges she developed a fantastic relationship with all three owners, although she never personally met Huber, who worked in the Texas office.
On April 22, 2016, O’Daniel made the incendiary Facebook post. While O’Daniel refers to the post simply as “that of a man
After O’Daniel made the post, it was shared with Simoneaux and Huber. Simoneaux informed O’Daniel that Huber wanted her fired immediately and she had personally taken offense to the post because Huber was a member of the LGBT community.3 The next day, Simoneaux informed O’Daniel that Huber wanted to know for whom her husband worked, as Huber felt a responsibility to report the Facebook post to his employer. Simoneaux also told O’Daniel that Huber had taken the Facebook post personally and felt the post wronged all members of the LGBT community, including herself. On or about April 24, 2016, Huber texted O’Daniel and told her to be available for a phone conference the following day. O’Daniel sent a text message to Simoneaux saying she felt she was being discriminated against because she was heterosexual.
O’Daniel participated in the conference call with Huber and ISS corporate counsel and was informed she must take a sensitivity/diversity training course and could no longer recruit through social media.4 She also received a letter of reprimand in response to her post, which stated that O’Daniel had had previous discussions regarding her job performance and areas for improvement.5 O’Daniel denies she had ever signed a single complaint against her before the letter of reprimand, and Huber had never before brought up issues with O’Daniel’s work performance. In fact, before the
Facebook post, O’Daniel had a “great relationship” with Huber, as the two regularly exchanged jokes and pictures by text. Huber had even sponsored O’Daniel’s daughter’s softball team through PNP for two years. After the post, Huber refused to engage with O’Daniel on a personal level.
Several days after her post, O’Daniel was placed under the direct supervision of Huber, who allegedly conspired with Simoneaux to create a hostile work environment in the hope that O’Daniel would quit or be fired. O’Daniel was given three dates in May on which she could take the
Over the next couple of weeks, O’Daniel received an email reprimand from Simoneaux stating wrongly that she was not doing her job properly. She also received hints that PNP’s Louisiana office may need to downsize and make cuts to personnel. Around June 8, O’Daniel told the Defendants in writing that she was being subjected to discrimination and harassment and she planned on filing a formal complaint. About a week later, Simoneaux told O’Daniel that the next week would be her last at PNP. When, on June 21, Huber found out that O’Daniel was still employed with PNP, she informed Simoneaux that she was shutting down O’Daniel’s email at noon. O’Daniel’s separation notice stated she was “fired due to unsatisfactory job performance.” However, when O’Daniel filed for unemployment benefits and challenged their denial due to employee misconduct, PNP did not participate in the scheduled hearing and “Louisiana workforce” eventually ruled in favor of O’Daniel. O’Daniel filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on December 20, 2016, and received her right to sue letter shortly afterward.
O’Daniel alleges Huber is no longer with PNP after being investigated for dishonesty involving financial records. She also alleges that the current human resources manager at PNP made several Facebook posts that included profanity, including one towards a PNP employee who subsequently quit. But the manager never received a reprimand.8 O’Daniel does not mention the sexual orientation of the new human resources manager.
O’Daniel filed her initial complaint pro se, alleging violations of multiple anti-discrimination laws, wrongful termination, and intentional infliction of severe emotion distress. A first amended complaint then updated her causes of action to reflect discrimination claims under Title VII of the Civil Rights Act,
II. STANDARD OF REVIEW
This court reviews a district court’s decision to dismiss under Rule 12(b)(6) de novo. Vaughan v. Anderson Reg’l Med. Ctr., 849 F.3d 588, 590 (5th Cir.), cert. denied, 138 S. Ct. 101 (2017). We accept all well-pleaded facts in the complaint as true and view the facts in the light most favorable to the plaintiff. Id. “However, those facts, ‘taken as true, [must] state a claim that is plausible on its face.’” Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012) (quoting Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007)).
III. DISCUSSION
At issue in this appeal are the plaintiff’s claims for Title VII retaliation and Louisiana constitutional violations. We discuss each in turn. Although the plaintiff’s allegations and briefing are somewhat ambiguous, she does not brief adequately that she was dismissed because of her sexual orientation, and
any such claim is waived. See Mullins v. TestAmerica, Inc., 564 F.3d 386, 407 n.9, 417 (5th Cir. 2009).
A. Title VII Retaliation Claim
O’Daniel argues the district court erred in dismissing her claim for retaliation under Title VII for several reasons. First, she contends the district court erred in finding that Title VII does not protect against discrimination on the basis of sexual orientation. Second, even if Title VII does not prohibit sexual orientation discrimination, the district court erred in finding that she could not have reasonably believed discrimination on the basis of sexual orientation was a prohibited practice. Third, O’Daniel takes issue with the district court’s determination that, even if sexual orientation is a protected class and/or O’Daniel reasonably believed it to be so, she failed to state a claim for retaliation under Title VII. Because her first two arguments fail as a matter of law, we need not reach the third contention.
The EEOC submitted an amicus curiae brief, as did the American Civil Liberties Union Foundation and several other organizations, asserting that Title VII ought to encompass sexual orientation as a protected class.9 Amici further urge that whether or not Fifth Circuit precedent recognizes a claim for discrimination on the basis of sexual orientation under Title VII, in the spring of 2016 when O’Daniel stated she would file an EEOC complaint, O’Daniel could have reasonably believed sexual orientation discrimination was prohibited by Title VII.10
Title VII outlaws employment discrimination based on “race, color, religion, sex, or national origin.”
amended complaint in declaring the amendment would be futile. As a result, O’Daniel did in fact receive the benefit of a counseled complaint─the district court simply found that the counseled complaint also failed to state a claim upon which relief could be granted. We apply the same standard to the motion to amend as in reviewing the district court’s decision on a motion to dismiss. See Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (applying de novo standard identical in practice to standard used for reviewing motion to dismiss for failure to state a claim). And footnotes to this opinion indicate the minor changes effected by the proposed amendment. For the same reasons stated above, the district court properly denied O’Daniel leave to amend.
“sexual orientation” as a protected class. See, e.g., Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255–57 (11th Cir. 2017) (citing decisions). Declining to consider the statute to cover a category of people not squarely identified by Congress in 1964 or even linguistically encompassed today by the applicable language, see Judge Ho’s concurrence in Wittmer, 915 F.3d at 333–41, is thus a matter of precedent, otherwise known as our rule of orderliness. Because the law in this circuit is clear, we cannot accept O’Daniel’s or the amici’s suggestions that this panel either overrule the precedents or assume arguendo that the “trend” has upended them.
Title VII prohibits an employer from retaliating against an employee who engages in protected activity by “oppos[ing] any practice made an unlawful employment practice by this subchapter . . . .”
treatment meted out on her.12 But her allegations of protected conduct had to be “reasonable,” that is, undergirded by charges that were, or reasonably appeared to be violative of Title VII. In the face of our unbroken and unequivocal precedents, it is not “reasonable” in the Fifth Circuit to infer that Title VII embraces an entirely new category of persons protected for their sexual orientation.
This court has generously interpreted the scope of the “opposition” basis for retaliation. See, e.g., Rite-Way, 819 F.3d 235. In Rite-Way, for instance, the court determined that a plaintiff might have been disciplined for her “opposition” to workplace sexual harassment of another female employee by a male supervisor. In so doing, we recognized that as to claims of sexual harassment, there is a “gray area between actual violation and perceived violation” in which a reasonable but mistaken belief may be held. Id. at 242. The court went on to explain that the nature of the comments, conduct, context and extrinsic features at the workplace all play a role in assessing actionable sexual harassment. Id. at 243–44.13
Here, however, the question is not the potential scope of “sex harassment” prohibited by Title VII for over thirty years, it is the exclusion altogether of “sexual orientation” from the term “sex” in the statute. O’Daniel’s and the amici’s arguments claim it is “reasonable” to assume that the law is not what it is. In fact, as PNP acutely observes, they claim it is “reasonable”
for O’Daniel to be knowledgeable about the “uncertain” state of federal law throughout the circuit courts about the coverage of sexual orientation in Title VII, but ignorant about what this court has held. Those positions are untenable. A court could not award damages for Title VII “retaliation” on a plaintiff’s claim that he reasonably “opposed” nepotism, unfair though the nepotism might be, if the nepotism had nothing to do with the statutorily protected classes. EEOC elsewhere admitted this condition of a retaliation claim:
[T]he EEOC recognizes that the opposed conduct must have something to do with Title VII in order to support a retaliation claim. We do not understand it to be arguing, for example, that an employee who believes she was fired for making statements about accounting fraud in response to an internal investigation would be able to bring a Title VII retaliation case.
Rite-Way, 819 F.3d at 242. The scope of this provision, in sum, is dictated by the
B. Freedom of Expression Claim under Louisiana Constitution Article 1, Section 7
The district court dismissed O’Daniel’s freedom of expression claim on the ground that none of the Defendants were state actors and therefore they were not covered by the restrictions of Article 1, § 7 of the Louisiana constitution. Article 1, § 7 states:
No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.
O’Daniel attempts to side-step this limitation by arguing that it is “unsettled law” whether Article 1, § 7 covers conduct by private individuals or entities. She cites one Louisiana court of appeals case that could possibly be construed to support her assertion: Wusthoff v. Bally’s Casino Lakeshore Resort, Inc., 709 So. 2d 913 (La. App. 4 Cir. 1998). In Wusthoff, the court stated in dicta, “An employee cannot be terminated because of race, sex, or religious beliefs or because he/she exercised constitutionally protected rights such as free speech.” Id. at 914. She suggests that this language, combined with several cases stating that Article 1, § 7 may provide broader protection than the First Amendment in certain instances (none of which are relevant to this case),14 somehow implies that a private employer might be liable for actions taken based on an employee’s speech. O’Daniel’s argument is unpersuasive.
A more recent Louisiana Supreme Court case, as well as the language of Article 1, § 7 itself, clearly controvert O’Daniel’s argument. In Quebedeaux, the Louisiana Supreme Court held that an employer is generally “at liberty to dismiss an employee at any time for any reason,” and “[a]side from the federal and state statutory exceptions, there are no broad policy considerations creating exceptions to employment
CONCLUSION
For the above-stated reasons, the judgment of dismissal is AFFIRMED.
HAYNES, Circuit Judge, concurring in part and concurring in the judgment:
I join Section III.B of the majority opinion, which addresses O’Daniel’s claim under the Louisiana Constitution, in full. I also concur with the judgment of the majority opinion, which affirms the district court’s dismissal of O’Daniel’s complaint under
O’Daniel’s complaint sets out a set of facts that demonstrate that her post ultimately led to her dismissal, a point she admits. It also states the Facebook post may have been in poor taste and politically incorrect. The complaint further admits that she was friends with Huber until Huber learned of the post. Other than her repeated statements that she was discriminated against because of her sexual orientation as a heterosexual, she points to zero facts supporting a conclusion that such was the case. See Grimes v. Tex. Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996) (citing Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994)) (holding that an employee’s subjective belief that discrimination occurred, by itself, is insufficient to support a jury verdict in plaintiff’s favor). Thus, she has no facts to support a claim of such discrimination, even if it were protected, and, in turn, no reasonable basis or belief to claim retaliation. Cf.
Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981 ).1
The question is not whether people are entitled to disagree (rudely or politely) about sensitive issues. The question is whether O’Daniel has stated a claim under Title VII. Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity. I would stop there.