Montgomery-Smith v. La. Dep't of Health & Hosps.

DENEEN L. MONTGOMERY-SMITH, Plaintiff v. LA. DEP'T OF HEALTH AND HOSPITALS, ET AL. Defendants

CIVIL ACTION NO. 15-6369 SECTION: "E"(3)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

February 21, 2017

ORDER AND REASONS

Before the Court is a Motion to Dismiss filed by Defendants pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.¹ Plaintiff filed an objection to the Defendants' motion.² For the reasons that follow, the Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART.

BACKGROUND

I. Procedural Background

On or about November 30, 2015, Plaintiff Deneen L. Montgomery-Smith filed a complaint against Defendants, The State of Louisiana, through its Department of Health and Hospitals ("DHH") Office of Public Health-Louisiana Center for Records and Statistics, and against Devin George, Nadine Smith, and Darlene Warren-Smith in their individual and official capacities.³ On April 25, 2016, the Court issued an Order dismissing Defendants' motion without prejudice, granting plaintiff leave to amend her complaint, and allowing Defendants the opportunity to re-urge the motion upon the filing of Plaintiff's amended complaint. On May 9, 2016, Plaintiff filed a First Supplementaland Amended Restated Complaint, which is the subject of the Defendant's instant Motion to Dismiss.

II. Statement of Facts

Plaintiff Deneen Montgomery-Smith alleges she is an African-American female who is more than 40 years old, has more than 25 years of experience with the State of Louisiana and has more than 12 years of experience with the Louisiana Department of Health and Hospitals. Plaintiff alleges that she worked at the DHH-Office of the Bureau of Protective Services and was promoted to the position of APS Supervisor on March 30, 2004, where she worked until July 30, 2007. On this date, Plaintiff alleges she was transferred without her agreement to the DHH-Office of Public Health after she filed an EEOC charge and a lawsuit for discrimination, retaliation, harassment, failure to promote, and denial of merit increases. Plaintiff states that the lawsuit was filed on April 13, 2007 in the Civil District Court for the Parish of Orleans. Plaintiff filed a second lawsuit on October 24, 2008 in this Court.

Montgomery-Smith alleges that shortly after DHH was served with her first lawsuit, administrative officials of DHH began conspiring to retaliate and transfer her from her supervisory position at the Office of Protective Services to a non-supervisory position at the DHH Office of Public Health-Vital Records. Soon after her transfer to Vital Records, the Plaintiff alleges that she began to be subjected to isolation and a hostile work environment by Nadine Smith, Program Manager 2, the Plaintiff's direct supervisor, and Devin George, Program Manager 3, the direct supervisor of Nadine Smith. Plaintiff contends that both Nadine Smith and Devin George were aware that she had been transferred to Vital Records and that she had previously filed grievances, lawsuits, and made charges against DHH, and they began to isolate her.

According to the Plaintiff, when she was removed to Vital Records, she was subjected to a hostile work environment through isolation and humiliation including, but not limited to the following: (1) Administration, including, but not limited to, Darlene Smith, Devin George, and Nadine Smith, resented that Plaintiff had been forcibly removed to their department and that the Program Monitor position had been created prior to her reassignment; (2) Plaintiff was not provided a written job description; (3) she was placed in an office alone; (4) she was required to work in archives (where molded records were kept following Hurricane Katrina); (5) she was also required to work in various departments at Vital Records such as Amendments, Acceptance, and Issuance; (6) she went from supervising investigators, insuring the safety, well-being and lives of Louisiana's most fragile residents to issuing birth, death and marriage certificates; (7) she kept looking for opportunities to advance herself to no avail; (8) when she finally saw an announcement for a position that she qualified for, no one at Vital Records would provide her with the job description to update her state employment application; (9) Human Resources told her she had no job description; (10) she was reprimanded by Devin George and written up for requesting her job description; (11) she was scolded for going to Human Resources and not following the chain of command through her immediate supervisor, Nadine Smith; (12) she was not advised beforehand that she was only permitted to speak to her immediate supervisor about an issue that is usually handled by Human Resources; (13) she was advised during the official reprimand by Devin George that the reprimand came from Baton Rouge; (14) she was continued on a supervisory plan wrongfully initiated by the Bureau of Protective Services, when she was reassigned to Vital Records; (15) she was silenced and not allowed to make inquiries to anyone; (16) when she was wasn't working in archives or cleaning files, she had to study on her own the laws thatgoverned Vital Records; (17) upon the retirement of Valerie Helmester, she was assigned by Devin George duties previously assigned to Ms. Helmester of processing requests from government agencies; (18) she learned that, although her direct supervisor was Nadine Smith, she was required to report directly to Devin George; (19) she was directed by Devin George to prepare letters informing customers of agency entitlement requirements and processing requests because of errors made by Ms. Helmester; (20) she was assigned by Devin George to write and prepare letters in response to the requests or questions that he received; (21) she was advised by Darlene Smith through a staff meeting that there would be a reorganization of Vital Records which would bring advancement opportunities for the staff; (22) she was denied advancement opportunities and retaliated against, and on information and belief, Darlene Smith hired new staff to the newly reorganized positions that included supervisory positions; (23) Darlene Smith began detailing and promoting less qualified employees such as Robin Lewis and Kathleen Crochet ahead of Plaintiff; (24) Nadine Smith stopped customer service department employees from speaking with Plaintiff; (25) former friend Jemimah Mikel distanced herself from Plaintiff because Mikel was told not to associate with Plaintiff because she "sued people;" (26) she was placed in a position of being afraid of reprisal by Nadine Smith so Plaintiff did not say anything; (27) Plaintiff was forced to be isolated in her office and to do her job in silence; (28) although she was a Program Monitor, Devin George, Darlene Smith, and Nadine Smith never included her in meetings, never discussed changes in the laws that affected Vital Records with her, and never discussed with her changes or concerns with how the agency performed or processed requests; (29) Plaintiff was alone and voiceless, left to figure out things by hearing changes on the news, grumbling staff, and studying the law; (30) she was never assigned to any department to be included in meetings; (31) she wasforced to take stress leave in 2015; and (32) she received "rejection letters upon being returning from stress leave and on her birthday."⁴

Plaintiff contends that although the lawsuits she filed in 2007 and 2008 were settled in 2011, she continues to be subjected to retaliation, isolation, and a hostile work environment at DHH.

Plaintiff further alleges that in 2013, Darlene Smith retired from DHH as the State Registrar, and shortly thereafter (1) Devin George was promoted to the position of Center Director/State Registrar, and (2) Nadine Smith was appointed to the position of Assistant Center Director/State Registrar. Plaintiff alleges that Darlene Smith then returned as a consultant to the Center Director/State Registrar under contract to DHH-Louisiana Center for Records and Statistics.

Plaintiff alleges that upon information and belief, Darlene Smith and Nadine Smith have met with Devin George to discuss with him who should be promoted and who should not and they have specifically conspired not to promote the Plaintiff, not to detail her, and/or not to offer her other advancement opportunities. Additionally, Plaintiff alleges that upon information and belief, Nadine Smith has warned other employees of DHH not to associate with the Plaintiff because Plaintiff has previously filed grievances, charges of discrimination, and/or lawsuits against DHH.

Montgomery-Smith further contends that, after Darlene Smith returned as a consultant, she immediately began acting in a manner intended to intimidate Plaintiff including, but not limited to glaring at her, refusing to speak to her, isolating her, and upon information and belief, Darlene Smith advised Devin George on how to handle the day to day operations of the agency.

In addition to allegedly conspiring not to promote the Plaintiff, or offer her advancement opportunities, Plaintiff contends that Devin George has retaliated against her and has refused to meet with her to investigate grievances filed by her. Plaintiff also alleges that Devin George has refused to hold hearings regarding her grievances, and has specifically advised Plaintiff that he cannot meet with her unless another employee from the Baton Rouge office is present. Plaintiff alleges that upon information and belief, other employees in the New Orleans office who have filed lawsuits against DHH are not restricted to only meeting with the Center Director/State Registrar in the presence of an employee from Baton Rouge.

Plaintiff also alleges that she has applied for and been denied multiple positions with DHH, although she is the better qualified candidate. These applications include:

1. Program Manager 1-B (August 12 and August 26, 2014);

2. Program Manager 1-A (August 12, 2014);

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