     Case: 16-31008      Document: 00514200872         Page: 1    Date Filed: 10/18/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 16-31008                              FILED
                                                                         October 18, 2017
                                                                           Lyle W. Cayce
NELLIE B. JENKINS,                                                              Clerk

              Plaintiff - Appellant

v.

STATE OF LOUISIANA WORKFORCE COMMISSION, Office of Workforce
Development, Louisiana Rehabilitation Services,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:14-CV-3276


Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Nellie Jenkins sued her employer, the State of Louisiana Workforce
Commission, alleging that the Commission failed to promote her for
discriminatory reasons and retaliated against her for filing a grievance against
her supervisor. The district court granted the Commission’s motion to dismiss
for failure to state a claim on which relief could be granted. We AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 16-31008
                  FACTUAL AND PROCEDURAL BACKGROUND
      Nellie B. Jenkins, an African-American woman, began working for the
State of Louisiana over 30 years ago.        She currently works for Louisiana
Rehabilitation Services (“LRS”), part of the Louisiana Workforce Commission,
as a Rehabilitation District Supervisor in the Shreveport office. Gerald Dyess,
a white man, served as Jenkins’s supervisor in the position of Rehabilitation
Regional Manager in the Shreveport office until his retirement in 2013.
      Some time prior to Dyess’s retirement, Jenkins alleges that Dyess
“undermined    Ms.      Jenkins’   supervisory   authority”    by   directing   “two
subordinate white female employees” to report directly to him rather than to
Jenkins. Jenkins filed a grievance about Dyess’s action. She alleges that
Dyess then “retaliated by telling other employees in the office that he intended
to ensure Ms. Jenkins would not be promoted to Regional Manager” following
his retirement.   Dyess also allegedly spoke with the Assistant Director,
Kenneth York, “about not promoting Ms. Jenkins to Regional Manager.”
      Dyess retired in December 2013, creating a vacancy in the Regional
Manager position. According to Jenkins, until the vacancy could be filled, LRS
had a “long and consistent history” of selecting the most senior supervisor to
oversee daily operations as the supervisor in charge. Although Jenkins was
apparently the most senior supervisor at the time of Dyess’s retirement, LRS
leadership selected John Vaughan, a white male, to take charge of daily
operations. Jenkins alleges that Vaughan had less overall experience working
for the state and less supervisory experience at the time of his appointment as
supervisor in charge.
      Central to Jenkins’s argument is that LRS allegedly has a well-known
history of hiring the supervisor in charge to become Regional Manager. Based
on this history, Jenkins alleges that by selecting Vaughan to be supervisor in
charge, LRS essentially “communicated” to her that it would be a futile gesture
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                                  No. 16-31008
to apply for promotion to Regional Manager.          Accordingly, her complaint
alleges that LRS discriminated against her on the basis of race and sex and
retaliated against her by failing to her promote to Regional Manager, a position
for which she claims it would have been futile to apply.
      She filed her initial complaint against the Commission in November
2014 in the United States District Court for the Western District of Louisiana.
She filed her Second Amended Complaint on May 20, 2016. Her amended
complaint alleged (i) that the Commission failed to promote her because of her
race and sex in violation of Title VII; (ii) that the Commission retaliated
against her for filing her grievance, a protected employment action, in violation
of Title VII; (iii) that the Commission’s actions violated Louisiana Civil Code
Article 2315; and (iv) that the actions intentionally inflicted emotional distress
on her in violation of Louisiana law. The Commission filed a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), which the district court granted
in August 2016. Jenkins timely appealed.


                                 DISCUSSION
      This court reviews de novo a grant of a motion to dismiss under Rule
12(b)(6). Raj v. Louisiana State Univ., 714 F.3d 322, 329–30 (5th Cir. 2013).
The court accepts “all well-pleaded facts in the complaint as true” and views
those facts in the light most favorable to the plaintiff. Id.
      “A pleading that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is entitled to relief[.]”
FED. R. CIV. P. 8(a)(2). “We affirm the district court’s grant of a motion to
dismiss when the plaintiff has not alleged enough facts to state a claim to relief
that is plausible on its face or has failed to raise its right to relief above the
speculative level[.]” Raj, 714 F.3d at 330 (quotation marks omitted). “To state
a claim that is facially plausible, a plaintiff must plead factual content that
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                                  No. 16-31008
‘allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 686
(2009)).
      As an initial matter, Jenkins argues that the district court erroneously
required her to plead a prima facie case at the motion-to-dismiss stage. It is
true that “a plaintiff need not make out a prima facie case of discrimination in
order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim.”
Id. at 331. The prima facie standard nonetheless has some relevance at the
motion-to-dismiss stage. See Chhim v. Univ. of Texas, 836 F.3d 467, 470 (5th
Cir. 2016). In order to make a sufficient claim of disparate treatment under
Title VII, a plaintiff must “plead sufficient facts on all of the ultimate elements”
to make her case plausible. Id.
      We now address each of Jenkins’s claims.


I.    Failure to Promote
       Jenkins alleges that LRS discriminated against her on the basis of race
and sex in failing to promote her to Regional Manager. We have applied the
McDonnell Douglas framework when examining such claims. Chhim, 836 F.3d
at 470 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). To
succeed on a failure to promote claim, a plaintiff must ultimately show that
“(1) he belongs to a protected class; (2) he applied for and was qualified for a
position for which applicants were being sought; (3) he was rejected; and (4) a
person outside of his protected class was hired for the position.” Burrell v. Dr.
Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007). While
Jenkins need not establish or explicitly plead each element, she must at least
plead facts giving rise to a reasonable inference of plausibility for the ultimate
elements of her claim. See Chhim, 836 F.3d at 470–71.


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                                  No. 16-31008
       Jenkins belongs to a protected class and a person outside of her protected
class was hired for Regional Manager. She did not apply for the Regional
Manager position, though. When no application was made, a plaintiff must
“show that such an application would have been a futile gesture.” Shackelford
v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999) (citing Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324, 366 (1977)). A futile gesture
determination “usually requires a showing that the applicant for the promotion
was deterred by a known and consistently enforced policy of discrimination.”
Id.
       Jenkins relies on our use of the phrase “usually requires” in Shackelford,
then argues no such requirement should be imposed here. Regardless of its
phrasing, our analysis relied on the Supreme Court’s holding that an employee
must be deterred from applying for a position due to an employer’s
discriminatory policy. See Teamsters, 431 U.S. at 365–68. Jenkins has failed
to allege a discriminatory policy that made her application a futile gesture. In
fact, her allegations support the opposite. The otherwise unvaried policy she
claims was violated here was always to promote the most senior person. When
the Commission instead picked a junior person to be the supervisor in charge,
then later chose that person for Regional Manager, that would have been a
violation of the claimed policy. Not only has no policy been shown that affected
her, Jenkins also has not shown that the claimed policy was discriminatory on
the basis of race or some other suspect category.
       In sum, the complaint does not allege a policy of discrimination existed
or that she was affected by any such policy. She thus failed to support her
argument that it would have been futile to apply for Regional Manager because
of a “known and consistently enforced policy of discrimination.” Shackelford,
190 F.3d at 406. Her claim fails.


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                                  No. 16-31008
II.    Retaliation
       Jenkins argues that she sufficiently stated a claim for retaliation under
Title VII. According to Jenkins, Dyess told other employees he intended to
ensure she would not be promoted after filing a grievance about his
instructions for two white employees to report directly to him rather than
Jenkins. The prima facie elements for retaliation require a showing that “(1)
she engaged in activity protected by Title VII; (2) that an adverse employment
action occurred; and (3) that there was a causal connection between the
participation in the protected activity and the adverse employment decision.”
Shackelford, 190 F.3d at 407–08. As with the failure to promote claim, these
elements are helpful in analyzing the sufficiency of her complaint. See Chhim,
836 F.3d at 470–71.
       Jenkins argues that she sufficiently alleged a protected activity of filing
a grievance against Dyess. “An employee has engaged in activity protected by
Title VII if she has either (1) ‘opposed any practice made an unlawful
employment practice’ by Title VII or (2) ‘made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing’ under
Title VII.” Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (citing 42
U.S.C. § 2000e-3(a)). An employee’s complaint to her employer that is vague,
“without any reference to an unlawful employment practice under Title VII,
does not constitute protected activity.” Paske v. Fitzgerald, 785 F.3d 977, 986
(5th Cir. 2015) (quoting Davis v. Dallas Indep. Sch. Dist., 448 F. App’x 485, 493
(5th Cir. 2011)).
       Jenkins alleges that she is African American and the other parties are
white, but she alleges no facts to suggest Dyess was engaged in discrimination
when shuffling reporting assignments. Additionally, the complaint makes no
allegation that Jenkins’s grievance was opposing or protesting racial or sexual
discrimination. She argues for the first time in her brief that in making his
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                                   No. 16-31008
decision, “Dyess may feel it is inappropriate for white employees to report to
African-American supervisors,” but she made no such allegation in her
complaint. She has not pled facts sufficient to raise a plausible inference that
she engaged in a protected activity.         Accordingly, we need not reach her
arguments for the remaining retaliation elements.


III.    Negligence
        Jenkins brings a negligence claim under Article 2315 of the Louisiana
Civil Code. She argues that one of our precedents interprets Article 2315 as
giving rise to liability of employers for breach of statutory duties to their
employees. See Guillory v. St. Landry Par. Police Jury, 802 F.2d 822, 826 (5th
Cir. 1986). We did not decide, though, whether Article 2315 was implicated
because the employer did not violate Guillory’s constitutional or statutory
rights. Id. Instead, we held that, in the absence of any violation of Guillory’s
rights, “the district court properly rejected his claim under Article 2315.” Id.
Because we hold that Jenkins’s complaint does not properly allege a violation
of her constitutional or statutory rights, she therefore fails to state a claim for
relief under Article 2315.


IV.     Intentional Infliction of Emotional Distress
        Jenkins also seeks recovery for intentional infliction of emotional
distress under Louisiana law. To recover, she 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.
White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). Louisiana further
limits recovery to cases involving “a pattern of deliberate, repeated harassment

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                                 No. 16-31008
over a period of time.” Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1026 (La.
2000). “[T]he employer’s conduct must be intended or calculated to cause
severe emotional distress, not just some lesser degree of fright, humiliation,
embarrassment or worry.” Id. at 1027.

      Jenkins alleges that her supervisory authority was undermined, that she
was passed over for a promotion, and that her supervisors discussed an
“inappropriate case note” with her. She does not allege any severe emotional
distress, nor do her allegations plausibly state extreme or outrageous conduct.
Her complaint does not therefore assert a right to relief on this claim.
      AFFIRMED.




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