BONNIE M. O'DANIEL, Plaintiff - Appellant
INDUSTRIAL SERVICE SOLUTIONS; PLANT-N-POWER SERVICES, INCORPORATED; TEX SIMONEAUX, JR.; CINDY HUBER Defendants - Appellees
from the United States District Court for the Middle District
JONES, HAYNES, and OLDHAM, Circuit Judges.
H. JONES, CIRCUIT JUDGE.
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 Fed. R. Civ. Pro.12(b)(6)
for failure to state cognizable claims of Title VII
retaliation and Louisiana law violations. Finding no
reversible error, we AFFIRM.
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.
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.
April 22, 2016, O'Daniel made the incendiary Facebook
post. While O'Daniel refers to the post simply as
"that of a man at Target wearing a dress and not[ing]
his ability to use the women's bathroom and/or dressing
room with Mrs. O'Daniel's young daughters,
" the text of O'Daniel's post is as
follows: "So meet, ROBERTa! Shopping in the women's
department for a swimsuit at the BR Target. For all of you
people that say you don't care what bathroom it's
using, you're full of shit!! Let this try to walk in the
women's bathroom while my daughters are in there!!
#hellwillfreezeoverfirst." The post tagged
O'Daniel's husband and included photos of the
individual referred to in the post.
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. 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.
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. 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. 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.
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 sensitivity
training, and for various reasons, she was unable to complete
the training on those dates. On May 24, 2016, O'Daniel
sent a text to Simoneaux that Huber's actions had
"reached a harassing level." Huber was irate
that O'Daniel had not attended any of the three
trainings, wanted her fired immediately, and suggested to
Simoneaux that he and O'Daniel were having an affair
because Simoneaux was fighting to keep her job. At the end of
May, Huber sent new rules that only applied to O'Daniel,
including modifying her schedule to conflict with her
children's schedules and putting her on a time clock.
O'Daniel confronted Simoneaux that she had "finally
reached breaking point" and that she would be filing a
formal complaint. Simoneaux told O'Daniel not to file a
complaint and that he would inform Human Resources of the
situation. However, he never notified Human Resources about
Huber's alleged discrimination and no investigations of
the harassment or discrimination took place.
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.
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. O'Daniel does not mention the sexual
orientation of the new human resources manager.
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, 42 U.S.C. § 2000e et
seq., and various Louisiana statutes. After O'Daniel
filed her first amended complaint, Defendants moved to
dismiss. Before her response to the motion to dismiss was
due, O'Daniel obtained counsel who moved to amend her
complaint and responded to Defendants' motion. The
parties briefed the issues and the district court analyzed
and resolved both motions together, granting Appellants'
motion to dismiss and denying O'Daniel's motion for
leave to amend. O'Daniel appeals the district court's
resolution of both motions.
STANDARD OF REVIEW
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)).