McNealy v. Becnel et al, No. 2:2014cv02181 - Document 237 (E.D. La. 2016)

Court Description: ORDER AND REASONS - IT IS ORDERED that the pending dispositive motions filed by the Defendants are GRANTED IN PART and DEFERRED IN PART. IT IS FURTHER ORDERED that McNealys federal claims against USW International and the Local Union under 42 U.S.C. Section 301; 42 U.S.C. § 1985(3); 42 U.S.C. § 1986; and 29 U.S.C. § 141 are DEFERRED and converted to motions for summary judgment. IT IS FURTHER ORDERED that McNealys federal claims against USW International and the Local Union unde r 42 U.S.C. § 1985(2) and 29 U.S.C. § 151 are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that McNealys federal claims against Motiva and the Shell Defendants under 42 U.S.C. § 1985(2); 29 U.S.C. § 1001 and 1132; 29 U.S.C. &# 167; 151; and Article III, Section 2, Clause 1 of the United States Constitution are DISMISSED WITH PREJUDICE. McNealys Title VII and ADA claims against Motiva and the Shell Defendants are DISMISSED WITHOUT PREJUDICE for failure to exhaust administra tive remedies. McNealys claims under 42 U.S.C. § 1981; 42 U.S.C. § 1985(3); 42 U.S.C. § 1986; and 42 U.S.C. § 141 are DEFERRED and converted to motions for summary judgment. IT IS FURTHER ORDERED that McNealys federal claims agai nst Saudi Refining, Inc., under 42 U.S.C. § 1981 and 42 U.S.C. § 1985(2) and (3) are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that McNealys federal claims against the EEOC under the First and Fifth Amendments to the United States Co nstitution and the Federal Tort Claims Act are DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that McNealys federal claim against Met-Life under 29 U.S.C. § 1001 is DISMISSED WITH PREJUDICE for failure t o exhaust administrative remedies. IT IS FURTHER ORDERED that the Court DEFERS ruling on McNealys state law claims until after its rulings on the motions for summary judgment filed in accordance with the Courts scheduling order. Signed by Judge Susie Morgan. (bwn)

Download PDF
McNealy v. Becnel et al Doc. 237 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A N EW TON MCN EALY, Plain tiff CIVIL ACTION VERSU S N O. 14 -2 18 1 D ARRYL J. BECN EL, ET AL., D e fe n d an ts SECTION : “E” ( 2 ) ORD ER AN D REAS ON S This m atter com es before the Court on the Defendants’ dispositive m otions. 1 The Defendants in this case are: (1) United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW International”); (2) United Steelworkers Local Union, Local 750 (“Local Union”); (3) Motiva Enterprises, LLC (“Motiva”); (4) Shell Oil Co. (“Shell Oil”); (5) Shell Chem ical LP (“Shell Chem ical”); 2 (6) Saudi Refining, Inc. (“Saudi Refining”); (7) the United States Equal Em ploym ent Opportunity Com m ission; and (8 ) Metropolitan Life Insurance Co. (“Met-Life”). Each Defendant has filed at least one dispositive m otion, and som e have filed two. FACTU AL & PROCED U RAL BACKGROU N D This civil action involves claim s of, am ong others, race discrim ination, retaliation, and harassm ent, levied by the Plaintiff, Newton McNealy, against a num ber of entities. 3 McNealy is an African-Am erican m ale who previously worked as a m achinist for Motiva at a Motiva-owned facility in Norco, Louisiana. McNealy alleges, on or about Novem ber 1 R. Docs. 117, 118 , 121, 138 , 146, 210 , 215, 216. Shell Oil and Shell Chem ical are som etim es referred to collectively by the Court as the “Shell Defendants.” The Plaintiff som etim es refers to these two Defendants as “Shell.” 3 The operative facts, as alleged by McNealy, are taken from McNealy’s “Second-Am ended Com plaint.” See R. Doc. 114. This Second-Am ended Com plaint is in reality McNealy’s Third-Am ended Com plaint and is referred to as such herein. 2 1 Dockets.Justia.com 7, 20 11, while in the course and scope of his em ploym ent with Motiva, he was “victim ized” and “struck in the head” by a crane control box at the hands of his white co-workers. After the attack, McNealy alleges he retreated to his personal vehicle to recover whereupon his co-workers “wrapped and sealed” him in the vehicle and “covered the window with som e type of foam .” McNealy also alleges, in the days that followed, he was verbally assaulted, threatened, sodom ized, and sexually harassed by his white co-workers, which contributed to a hostile work environm ent. According to McNealy, he com plained to his superiors on num erous occasions and filed form al com plaints with his union, but the investigations into his com plaints led nowhere. McNealy thus alleges the various Defendants condoned “inappropriate behavior in the workplace,” and ultim ately violated the Collective Bargain ing Agreem ent between Motiva and his union. McNealy alleges, as a result of the treatm ent he experienced, he developed and has been diagnosed with post-traum atic stress disorder, anxiety, paranoia, and depression, am ong other con dition s. In light of his m edical conditions, McNealy alleges he was placed on non-occupational disability in February of 20 12 and rem ain ed on disability for over two years. According to McNealy, after havin g been on disability for an exten ded period of tim e, he was converted to “non-pay status,” and he began experiencing other adverse em ploym ent actions by the Shell Defendants and Motiva. McNealy alleges, for exam ple, the Shell Defendants and Motiva confiscated his ID badge and his com pany credit card and cancelled his insurance. These actions, according to McNealy, ultim ately led to the term ination of his em ploym ent at the Motiva facility. 2 McNealy filed suit on Septem ber 22, 20 14, and has been granted leave of court on m ultiple occasions to am end his com plaint. 4 McNealy filed his third-am ended com plaint on Decem ber 9, 20 15. McNealy’s third-am ended com plaint, like his prior com plaints, is less than clear. In an Order dated J une 30 , 20 16, the Court identified for McNealy the deficiencies in his third-am en ded com plaint, citing Federal Rule of Civil Procedure 8(a). 5 The Court noted Rule 8(a) requires a pleading stating a claim for relief to include, inter alia, “a short and plain statem ent of [each] claim showing that the pleader is entitled to relief” against each defendant. 6 Considering the third-am ended com plaint in light of Rule 8 (a), the Court found McNealy’s third-am ended com plaint failed to clearly identify, with precision, the specific causes of action he is bringing against each Defendant and the laws or statutes pursuant to which those causes of action were filed. In sum , the Court found it unclear from the third-am ended com plaint which causes of action McNealy is bringing against each Defendant. The Court convened a telephone status conference with counsel for the parties on J uly 8 , 20 16 to discuss the third-am ended com plaint. During the status conference, McNealy’s attorney, Quiana Hunt, clarified the causes of action that McNealy claim s he has brought against each Defendant. The Court m em orialized this discussion in a Minute Entry, to which the Court attached a chart specifically identifying each cause of action 4 McNealy’s com plaints include Record Docum ent 1 (Com plaint), Record Docum ent 37 (Am ended and Supplem ental Com plaint), Record Docum ent 60 (Second-Am ended Com plaint), and Record Docum ent 114 (Third-Am ended Com plain t). 5 R. Doc. 20 8 . 6 See, e.g., Hernandez v. W ood/ Chuck Chipper Corp., No. 4:11-CV-597, 20 12 WL 18 36352, at *1 (E.D. Tex. Apr. 13, 20 12) (citing F ED. R. CIV. P. 8(a)(2)) (alterations om itted) (“The Federal Rules of Civil Procedure require that each claim in a com pliant include ‘a short and plain statem ent showin g that the pleader is entitled to relief.’”); De W ard v. Gom ez, No. 2:0 9-CV-0 20 4, 20 0 9 WL 3170 255, at *1 (N.D. Tex. Oct. 2, 20 0 9) (“Plaintiff was ordered to file an am ended com plaint setting forth a short and plain statem ent of his claim against each defendant showin g his entitlem ent to relief, in com pliance with Federal Rule[] of Civil Procedure 8.”). 3 McNealy claim s to be pursuing against each Defendant. 7 Without agreeing with McNealy that these causes of action are actually pleaded in the third-am ended com plaint, the Court will assum e these are the causes of action pleaded therein for purposes of this decision. LEGAL STAN D ARD S I. Mo tio n s to D is m is s Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief. 8 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”9 “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 m isconduct alleged.”10 The court, however, does not accept as true legal conclusions or m ere conclusory statem ents, and “conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss.”11 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere conclusory statem ents” or “naked assertion[s] devoid of further factual enhancem ent” are not sufficient. 12 In sum m ary, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.”13 “[W]here the well-pleaded facts do not perm it the court to infer 7 R. Doc. 20 9 (Minute Entry); R. Doc. 20 9-1 (Chart). Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 10 Id. 11 S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 786 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 12 Iqbal, 556 U.S. at 663, 678 (citations om itted). 13 Tw om bly , 550 U.S. at 555. 8 4 m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not show[n]’—that the pleader is entitled to relief.” 14 “Dism issal is appropriate when the com plaint ‘on its face show[s] a bar to relief.’”15 II. Mo tio n s fo r Su m m ary Ju d gm e n t Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”16 “An issue is m aterial if its resolution could affect the outcom e of the action.”17 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”18 All reasonable inferences are drawn in favor of the nonm oving party. 19 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 20 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 21 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the nonm oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the 14 Id. (quotin g Fed. R. Civ. P. 8(a)(2)). Cutrer v. McMillan, 30 8 F. App’x 819, 8 20 (5th Cir. 20 0 9) (per curiam ) (quotation s om itted). 16 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 17 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 18 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 19 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 20 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 21 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 15 5 record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 22 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonm ovant’s claim . 23 When proceeding under the first option, if the nonm oving party cannot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 24 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”25 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 26 If the m ovant m eets this burden, “the burden of production shifts [back again] to the nonm oving party, who m ust 22 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Brennan , J ., dissenting); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex Corp. v. Catrett, 477 U.S. 317, 322– 24 (1986), and requirin g the m ovants to subm it affirm ative evidence to negate an essential elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the nonm ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citing J ustice Bren nan’s dissent in Celotex, and requiring the m ovant to m ake an affirm ative presentation to n egate the non m ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision , the m ajority and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 24 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 28 8 – 89 (198 0 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 25 Celotex, 477 U.S. at 332– 33. 26 Id. 23 6 either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional evidence showing the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”27 “Sum m ary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”28 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that evidence supports the claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”29 LAW AN D AN ALYSIS Each Defendant has filed or joined in at least one dispositive m otion, and som e have filed two. 30 Moreover, som e m otions were filed on behalf of m ultiple defendants. The Court begins with McNealy’s federal causes of action against each Defendant, followed by a separate section addressing McNealy’s state law causes of action, in general. I. U SW In te rn atio n al & Lo cal U n io n ( R. D o cs . 117, 118 , 2 15 , 2 16 ) USW International and the Local Union m ove to dism iss McNealy’s claim s against 27 Celotex, 477 U.S. at 332– 33, 333 n.3. Id.; see also First N ational Bank of Arizona, 391 U.S at 289. 29 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 30 R. Docs. 117 (USW International); 118 (Local Union); 121 (Motiva, Shell Chem ical, & Shell Oil); 138 (Saudi Refinin g); 146 (EEOC); 210 (Met-Life Insurance Co.); 215 (Local Union); 216 (USW International). 28 7 them under Rule 12(b)(6). 31 The factual allegations in the third-am ended com plaint with respect to USW International and the Local Union are as follows. McNealy alleges he is a “paying m em ber of the Local Union (750 ), who is entitled to representation,” but the Union 32 failed to “address his grievances against Shell and Motiva.”33 McNealy further alleges the Union “had a fiduciary duty to protect his rights under the term s an d condition[s] of the Collective Bargaining Agreem ent as the Labor Organization on behalf of its m em bers with Shell and Motiva, but refused and failed to do so.”34 McNealy also alleges the “Union condoned inappropriate behavior in the workplace in violation of the Collective Bargain ing Agreem ent.” 35 McNealy alleges the Union, along with other Defendants, “had the power to prevent the occurrences, but failed to do so.”36 According to McNealy, the Union conspired with the Shell Defendants and Motiva to “deprive him of his rights,” and their actions were “retaliatory in nature” because McNealy “refused to work in a hostile work environm ent, without assurance of protection.”37 McNealy also alleges the Union’s actions created or contributed to the existen ce of a hostile work environm ent. According to McNealy, he is bringing causes of action against USW International and the Local Union under (1) Section 30 1 of the Labor Managem ent Relations Act, for breach of the duty of fair representation; (2) 42 U.S.C. § 1985(2) and (3); (3) 42 U.S.C. § 198 6; (4) 29 U.S.C. § 141; (5) La. Civ. Code art. 190 6; (6) La. Civ. Code art. 2315; (7) La. 31 R. Doc. 117 and 118. Although USW Internation al and the Local Union are separate and distinct legal entities, McNealy refers to them as one, the “Union ,” and m akes the sam e allegations against them in the third-am ended com plaint. The Court does so too, in certain instances, as the distinction does not m atter for present purposes. 33 R. Doc. 114 at 10 . The Plain tiff refers to Shell Oil and Shell Chem ical as “Shell.” 34 R. Doc. 114 at 11. 35 R. Doc. 114 at 11. 36 R. Doc. 114 at 15. 37 R. Doc. 114 at 13. 32 8 Civ. Code art. 2316; (8) La Civ. Code art. 2320 ; (9) La. Civ. Code art. 3499; and (10 ) La. Rev. Stat. § 9:380 1. 38 a. Section 30 1 of the Labor Managem ent Relations Act McNealy alleges USW International and the Local Union breached the duty of fair representation, which is im plied under Section 30 1 of the Labor Managem ent Relations Act. 39 Section 30 1 provides: Suits for violation of contracts between an em ployer and a labor organization representing em ployees in an industry affecting com m erce as defined in this Act, or between any such labor organizations, m ay be brought in any district court of the United States having jurisdiction of the parties, without respect to the am ount in controversy or without regard to the citizenship of the parties. 40 Section 30 1 of the Labor Managem ent Relations Act is codified at 29 U.S.C. § 18 5 and has been recognized by the Suprem e Court of the United States as a “potent source of federal labor law.”41 Section 30 1 provides an in dividual em ployee with a federal cause of action against his or her em ploy er for breach of a collective bargain ing agreem ent. 42 Also, an em ployee’s cause of action against a union for breach of the duty of fair representation is im plied under Section 30 1. 43 “Because of the intricate relationship between the duty of fair representation and the enforcem ent of a collectively bargained contract, the two causes of action have becom e ‘in extricably interdepen dent’ and known as a ‘hybrid § 30 1/ fair representation suit.’”44 38 R. Doc. 20 9-1 at 1. McNealy’s state law claim s are dealt with in Section VI, infra. See, e.g., Electrical W orkers v. Foust, 442 U.S. 42, 46 n.8 (1979) (“The duty of fair representation is . . . im plicit in the National Labor Relations Act.”). The Labor Managem ent Relations Act am ended the National Labor Relations Act. See generally Sm ith v. Int’l Org. of Masters, Mates and Pilots, 296 F.3d 38 0 (5th Cir. 20 0 2). 40 29 U.S.C. § 185(a). 41 United Steelw orkers of Am ., AFL-CIO-CLC v. Raw son, 495 U.S. 362, 368 (1990 ). 42 Bache v. Am . Tel. & Tel., 8 40 F.2d 283, 287 (5th Cir. 198 8) (citations om itted). 43 Id. (citing Vaca v. Sipes, 386 U.S. 171 (1967)). 44 Id. at 287– 8 8 (quotin g DelCostello v. Int’l Brotherhood of Team sters, 462 U.S. 151, 164– 65 (1983)). “The interdependency arises from the nature of the collective bargaining agreem ent. If the arbitration and 39 9 A m otion to dism iss under Rule 12(b)(6) is designed to test the pleadings. Nevertheless, McNealy attached Exhibits A, B, C, D, Q, O, K, H, and I to his m em orandum in opposition to the Local Union’s m otion to dism iss 45 and USW International’s Motion to Dism iss. 46 These docum ents are outside the pleadings, and they have not been excluded by the Court. In this situation, Rule 12(d) requires the Court to deny the Unions’ m otions to dism iss and, instead, treat the pleadings as m otions for sum m ary judgm ent under Rule 56. 47 When converting a m otion to dism iss to a m otion for sum m ary judgm ent under Rule 12(d), the Court m ust give the parties am ple opportunity to present argum ent and sum m ary judgm ent evidence. The parties m ay not have attached all the relevant docum ents and exhibits they would have attached if they had known the m otion would be treated as a m otion for sum m ary judgm ent. Accordingly, pursuant to Rule 56(e)(1), the Court will allow the parties an opportunity to properly support their argum ents and factual assertions and address the argum ents and factual assertions raised by opposing counsel. The Unions’ m otions to dism iss McNealy’s Section 30 1 claim s under Rule 12(b)(6) are converted to m otions for sum m ary judgm ent. grievance procedure is the exclusive and final rem edy for breach of the collective bargain ing agreem ent, the em ployee m ay not sue his em ployer under § 30 1 until he has exhausted the procedure. Further, he is bound by the procedure’s result un less he proves the union breached its duty of fair representation.” Daigle v. Gulf State Util. Co., 794 F.2d 974, 977 (5th Cir. 1986) (citations om itted). 45 R. Doc. 224. 46 R. Doc. 225. 47 See Fed. R. Civ. P. 12(d). 10 b. 42 U.S.C. § 1985(2) and (3) McNealy seeks relief against USW International and the Local Union under Title 42, United States Code, Sections 1985(2) and (3). Section 1985(2) protects parties and witnesses who seek to atten d or testify in federal court. 48 Section 1985(2) has no relevance in this case. McNealy does not allege that USW International or the Local Union violated his right to attend or testify in federal court. McNealy’s claim against the Union under Section 1985(2) is dism issed with prejudice. “Section 1985(3) prohibits private conspiracies to deprive persons of equal protection of the laws.”49 To state a claim for relief under Section 1985(3), a plaintiff m ust show, inter alia, “that som e racial, or perhaps otherwise class-based, invidiously discrim inatory anim us [lay] behind the conspirators’ action.”50 Therefore, to state a claim under Section 1985(3), the plaintiff m ust allege sufficient facts showing the defendants conspired to discrim inate again st the plaintiff on the basis of his or her race. 51 A m otion to dism iss under Rule 12(b)(6) is designed to test the pleadings. Nevertheless, McNealy attached Exhibits A, B, C, D, Q, O, K, H, and I to his m em orandum in opposition to the Local Union’s m otion to dism iss 52 and the International Union’s Motion to Dism iss. 53 These docum ents are outside the pleadings, and they have not been 48 See, e.g., Kush v. Rutledge, 460 U.S. 719, 724 (1983); Kim ble v. D.J. McDuffy , In c., 648 F.2d 340 (5th Cir. 1981); Bry ant v. Miss. Military Dep’t, 519 F. Supp. 2d 622, 628– 29 (S.D. Miss. 20 0 7); Turner v. Bow en , No. 3:0 6-cv-576, 20 0 7 WL 1295787, at *2 (S.D. Miss. May 1, 20 0 7); Ragsdale v. Classroom Teachers of Dallas, No. 3:0 6-CV-863, 20 0 7 WL 426637, at *4 n.5 (N.D. Tex. Feb. 5, 20 0 7). 49 Daigle v. Gulf State Utilities Co., 794 F.2d 974, 978 (5th Cir. 1986) (citation om itted). 50 Bray v. Alexandria W om en’s Health Clinic, 50 6 U.S. 263, 267– 68 (1993) (intern al quotations om itted) (quotin g Griffin v . Brecken ridge, 40 3 U.S. 825, 833 (1983)). See also David v. Signal Intern ., LLC, No. 0 8 1220 , 20 12 WL 10 759668, at *36 (E.D. La. J an. 4, 20 12). 51 See, e.g., N ew som e v. EEOC, 30 1 F.3d 227, 232 (5th Cir. 20 0 2). 52 R. Doc. 224. 53 R. Doc. 225. 11 excluded by the Court. In this situation, Rule 12(d) requires the Court to deny the Unions’ m otions to dism iss and, instead, treat the pleadings as m otions for sum m ary judgm ent under Rule 56. 54 When converting a m otion to dism iss to a m otion for sum m ary judgm ent under Rule 12(d), the Court m ust give the parties am ple opportunity to present argum ent and sum m ary judgm ent evidence. The parties m ay not have attached all the relevant docum ents and exhibits they would have attached if they had known the m otion would be treated as a m otion for sum m ary judgm ent. Accordingly, pursuant to Rule 56(e)(1), the Court will allow the parties an opportunity to properly support their argum ents and factual assertions and address the argum ents and factual assertions raised by opposing counsel. The Unions’ m otions to dism iss McNealy’s Section 1985(3) claim s under Rule 12(b)(6) are converted to m otions for sum m ary judgm ent. c. 42 U.S.C. § 1986 Section 1986 provides for liability against third parties based on their knowledge of Section 1985 violations. Section 1986 does not provide an in dependent cause of action but instead requires the existence of a valid claim under Section 1985. 55 “A valid § 198 5 claim is a prerequisite to a § 1986 claim .”56 Because the Unions’ m otions to dism iss the Section 1985(3) claim s have been converted to m otions for sum m ary judgm ent, these m otions to dism iss also m ust be converted. The Unions’ m otion to dism iss McNealy’s Section 1986 claim s under Rule 12(b)(6) are converted to m otions for sum m ary judgm ent. 54 See Fed. R. Civ. P. 12(d). Bradt v. Sm ith, 634 F.2d 796, 799 n .3 (5th Cir. 1981). 56 Bry an v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 20 0 0 ). 55 12 d. 29 U.S.C. § 141, et seq. McNealy represents he is pursuing causes of action against USW International and the Local Union under 29 U.S.C. § 141, et seq. In particular, McNealy indicates his causes of action are under 29 U.S.C. § 151. The National Labor Relations Act of 1935, as am ended by the Labor Managem ent Relations Act, is codified at 29 U.S.C. § 141, et seq. Section 151 m erely sets forth, generally, the “findings and declarations of policy” behind the National Labor Relations Act. 57 In this case, McNealy cites Section 151 in his third-am ended com plaint. McNealy alleges USW International and the Local Union are “regulated under 29 U.S.C. § 151 et seq. as a National Labor Relations Organization on behalf of its m em bers.”58 The Unions’ m otions to dism iss McNealy’s claim s under Section 151 are dism issed with prejudice. The only other section of the National Labor Relations Act referenced in McNealy’s third-am ended com plaint is Section 141. 59 McNealy alleges USW International and the Local Union “had a duty to represent him under the collective bargaining agreem ent, but breached their duty by failing to do so as required by Labor Managem ent Relations Act § 30 1 and National Labor Relations Act § 141.”60 McNealy’s claim under Section 141 is one and the sam e with his Section 30 1 claim , as Section 141 is m erely the first statutory section of the National Labor Relations Act, as am ended by Section 30 1 of the Labor Managem ent Relations Act. 61 McNealy’s claim s against USW International and the Local Union under 29 U.S.C. § 141 are, in reality, claim s under Section 30 1 of the Labor Managem ent 57 See Eastex, Inc. v. N .L.R.B., 437 U.S. 556, 565 n .14 (1978); N .L.R.B. v. Brow n Paper Mill Co., 10 8 F.2d 867, 870 (5th Cir. 1940 ). 58 R. Doc. 114 at 7. 59 R. Doc. 114 at 1, 22. 60 R. Doc. 114 at 22. 61 Thom as v. LTV Corp., 39 F.3d 611, 614 (5th Cir. 1994). 13 Relations Act for breach of the duty of fair representation. The Unions’ m otion to dism iss McNealy’s Section 30 1 claim s under Rule 12(b)(6) have been converted to m otions for sum m ary judgm ent. 62 II. Mo tiva En te rp ris e s , Sh e ll Ch e m ical LP, Sh e ll Oil Co . ( R. D o cs . 12 1, 2 11) Motiva, Shell Oil, and Shell Chem ical m ove to dism iss McNealy’s claim s against them under Rule 12(b)(6). 63 McNealy was an em ployee of Motiva, a subsidiary of the Shell Defendants, as a m achin ist when, according to McNealy, he was subjected to discrim inatory treatm ent, harassed, and retaliated against for several reasons. McNealy alleges, for exam ple, while in the course and scope of his em ploym ent with Motiva and the Shell Defendants, he was “victim ized” and “struck in the head with a crane control box” by white co-workers. 64 McNealy alleges that, after the incident, he was repeatedly harassed and discrim in ated against by other em ployees and supervisors of Motiva and the Shell Defendants due to his race. 65 According to McNealy, Motiva and the Shell Defendants also failed to “take corrective action” in response to the discrim inatory treatm ent he experienced, although an investigation into the allegations was com m enced. 66 According to McNealy, Motiva and the Shell Defendants also took a num ber of adverse em ploym ent actions against him , including confiscating his ID badge and com pany credit card and can celling his insurance. 67 More generally, McNealy alleges Motiva and the Shell Defendants 62 See supra page 10 . R. Doc. 121 and 211. For purposes of this Order & Reasons, the Court refers to Shell Chem ical LP and Shell Oil Co., collectively, as the “Shell Defendants.” 64 R. Doc. 114 at 8 . 65 R. Doc. 114 at 9. 66 R. Doc. 114 at 9– 10 . 67 R. Doc. 114 at 12. 63 14 “condoned inappropriate and crim inal behavior” at Motiva’s Norco facility, “in violation of their em ploym ent practices and policies.”68 McNealy brings causes of action against Motiva, Shell Chem ical LP, and Shell Oil Co. under (1) 42 U.S.C. § 20 0 0 , et seq.; (2) 42 U.S.C. § 1210 1; (3) 42 U.S.C. § 1981; (4) 42 U.S.C. § 1985(2) and (3); (5) 42 U.S.C. § 198 6; (6) 29 U.S.C. § 10 0 1; (7) 29 U.S.C. § 1132; (8 ) 29 U.S.C. § 141; (9) Article III, Section 2, Clause 1 of the United States Constitution; (10 ) La. Rev. Stat. § 23:30 1; (11) La. Rev. Stat. § 23:1361; (12) La. Rev. Stat. § 9:38 0 1; (13) La. Civ. Code art. 190 6; (14) La. Civ. Code art. 2315; (15) La. Civ. Code art. 2316; (16) La. Civ. Code art. 2320 ; an d (17) La. Civ. Code art. 3499. 69 a. 42 U.S.C. § 20 0 0 , et seq. Title 42, United States Code, Section 20 0 0 , m arks the beginning of Title VII of the Civil Rights Act of 1964. Title VII prohibits em ployers, both public an d private, from discrim inating against their em ployees and prospective em ployees on the basis of race, color, religion, sex, and national origin. 70 “Title VII prohibits both intentional discrim ination (known as ‘disparate treatm ent’) as well as, in som e cases, practices that are not intended to discrim inate but in fact have a disproportionately adverse effect on m inorities (known as ‘disparate im pact’).”71 Title VII also bars em ployers from retaliating against em ployees and prospective em ployees or subjecting them to a hostile work environm ent for engaging in a protected activity. 72 Title VII authorizes private causes of action for discrim ination, retaliation, and a hostile work environm ent. 68 R. Doc. 114 at 11. R. Doc. 20 9-1 at 2. 70 Ricci v. DeStefano, 557 U.S. 557, 577 (20 0 9). 71 Id. 72 42 U.S.C. § 20 0 0 e. See also Bartz v . Mitchell Ctr., No. A-0 5-CA-959, 20 0 8 WL 577388 , at *2 (W.D. Tex. J an. 23, 20 0 8). 69 15 McNealy’s causes of action under Title VII are subject to dism issal under Rule 12(b)(6). 73 A plaintiff m ay not pursue Title VII claim s in federal court unless he or she has exhausted all of the available adm inistrative rem edies. 74 “Exhaustion occurs when the plaintiff files a tim ely charge with the EEOC and receives a statutory notice of right to sue.” 75 In his third-am ended com plaint, McNealy alleges he filed com plaints with the EEOC, but McNealy does not allege he was ever issued a right-to-sue letter. 76 In fact, McNealy concedes he was not issued a right-to-sue letter by the EEOC. 77 Thus, McNealy did not exhaust his adm inistrative rem edies. McNealy argues, however, that he was excused from exhausting his adm inistrative rem edies because doing so would have been futile. 78 McNealy bears the burden of establishing exhaustion would have been futile. 79 McNealy argues he “filed several com plaints” with the EEOC, but the EEOC “failed to investigate” those com plaints, thus preventin g him from exhausting his adm in istrative rem edies and renderin g futile his attem pts to do so. 80 This argum ent, however, is short on specifics, as McNealy has not alleged any facts to support his argum ent that the EEOC failed to investigate his com plaints. Conclusory allegations that exhaustion would have been futile are insufficient to evade the general requirem ent that a plaintiff exhaust his or her adm inistrative rem edies before proceedin g in federal court. 81 73 Tim ely filing of a com plain t with the EEOC is not a jurisdictional prerequisite to bringing suit in federal court. W aiters v. Parsons, 729 F.2d 233, 236 (5th Cir. 1984). 74 Tay lor v. Books A Million, Inc., 296 F.3d 376, 378– 79 (5th Cir. 20 0 2); Hall. v. Cont’l Airlines, Inc., 252 F. App’x 650 , 653 (5th Cir. 20 0 7). See also EEOC v. W affle House, Inc., 534 U.S. 279, 285 (20 0 2). 75 Tay lor, 296 F.3d at 379 (citing Dao v. Auchan Hy perm arket, 96 F.3d 787, 788 – 89 (5th Cir. 1996)). 76 R. Doc. 114 at 16, 22 77 R. Doc. 114 at 23. 78 R. Doc. 18 6-1 at 11. 79 See, e.g., Guerra v. Com m ’cns W orkers, 91 F.3d 140 (5th Cir. 1996) (citations om itted). 80 R. Doc. 18 6-1 at 10 – 11. 81 This rule of law is oft recognized in prisoner litigation, but applies with equal force in this case. Kidd v. Livingston, 463 F. App’x 311, 313 (5th Cir. 20 12); How e v. Livingston, No. 9:11-cv-162, 20 12 WL 4127621, at *7 (E.D. Tex. Sept. 17, 20 12). See also Stringer v. Martin, No. 1:11-cv-70 4, 20 12 WL 5195819, at *1 (E.D. Tex. Oct. 18, 20 12) (“Petitioner’s petition fails to cite any facts to support his allegation that exhaustion would be futile.”); A.T. v. Leflore Cnty . Sch. Dist., No. 4:0 9-cv-128, 20 10 WL 150 6974, at *1 (N.D. Miss. 16 As a precondition to filing suit under Title VII, a plaintiff m ust exhaust his or her available adm inistrative rem edies. In this case, it is undisputed that McNealy was not issued a right-to-sue letter by the EEOC and, as a result, failed to exhaust his adm in istrative rem edies. His argum ent that exhaustion would have been futile is conclusory. For these reasons, McNealy is unable to pursue his Title VII causes of action in this Court at this tim e. McNealy’s Title VII causes of action against Motiva and the Shell Defendants m ust be dism issed without prejudice due to McNealy’s failure to exhaust his adm in istrative rem edies. 82 b. 42 U.S.C. § 1210 1 Title 42, United States Code, Section 1210 1, m arks the beginning of the Am erican s with Disabilities Act of 1990 (“ADA”). The ADA prohibits, inter alia, discrim in ation against qualified, disabled em ployees on the basis of an em ployee’s disability. Title I of the ADA prohibits em ploym ent discrim ination, and Title II prohibits discrim ination in the provision of public services. 83 Title I’s prohibition of discrim in ation in the context of em ploym ent is arguably relevant in this case. McNealy alleges Motiva an d the Shell Defendants discrim inated against him on the basis of race and, of significance in this section, a num ber of disabilities. According to Apr. 14, 20 10 ) (“Plaintiff’s Com plaint does not allege sufficient facts to show that she has exhausted her adm inistrative rem edies, and Plaintiff has not offered any evidence or argum ent that exhaustion would be futile or inadequate.”); Stew art v. Tom bone, No. 3:97-cv-0 129, 1998 WL 158657, at *2 (N.D. Tex. Mar. 24, 1998) (“While petitioner asserts futility, he fails to present evidence supporting such claim .”). 82 See, e.g., Ow ens v. Sec. of Arm y , 354 F. App’x 156, 157 (5th Cir. 20 0 9); W in egarner v. Dallas Cnty . Sch., No. 3:98-cv-2523, 1999 WL 3250 28 , at *1 (N.D. Tex. May 19, 1999) (recogn izin g unexhausted claim s m ust be dism issed without prejudice). 83 See, e.g., Decker v . Univ . of Houston, 970 F. Supp. 575, 577 (S.D. Tex. 1997) (“Subchapter or Title II of the ADA governs public services and provides that ‘no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the ben efits of the services, program s, or activities of a public entity, or be subjected to discrim ination by any such entity. . . . Title I provides that ‘[n]o covered entity shall discrim inate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancem ent, or discharge of em ployees, em ployee com pensation, job trainin g, and other term s, conditions, and privileges of em ploym ent.”). 17 McNealy, due to the racial discrim in ation he experienced, he developed and was diagnosed with several disabilities, includin g post-traum atic stress disorder, anxiety, paranoia, dysthym ic disorder, and depression. 84 McNealy identifies these disabilities in the third-am ended com plaint and alleges Motiva and the Shell Defendants discrim in ated against him because of those disabilities. 85 As with causes of action under Title VII, a plaintiff m ust exhaust the available adm in istrative rem edies before pursuing any causes of action under the ADA in federal court. That is, “an em ployee m ust com ply with the ADA’s adm in istrative prerequisites prior to com m encing an action in federal court against her em ployer for violation of the ADA.”86 The adm inistrative prerequisites under the ADA are the sam e as those under Title VII; the plaintiff m ust (1) file a charge with the EEOC and (2) obtain a right-to-sue letter prior to filing suit in federal court. 87 In this case, McNealy did n ot obtain a right-tosue letter and, thus, McNealy did not exhaust his adm inistrative rem edies. Although McNealy argues exhaustion would have been futile because the EEOC “failed to investigate” his com plaints, 88 it is McNealy’s burden to establish the futility of exhaustion, a burden which McNealy has not carried. McNealy’s argum ent that exhausting his adm inistrative rem edies would have been futile is not supported by any concrete factual allegations but, instead, is an unsupported, conclusory argum ent which this Court need not credit. 89 84 R. Doc. 114 at 11. R. Doc. 114 at 14. 86 Dao v. Auchan Hy perm arket, 96 F.3d 787, 78 8 (5th Cir. 1996). 87 Id. at 78 9. “Under the ADA, an aggrieved em ployee m ust exhaust his adm inistrative rem edies by filin g a tim ely charge of discrim ination with the EEOC and receiving a right to sue letter before filing suit in the district court.” Thibodeaux v. Transit Mix Concrete and Materials Co., 3 F. Supp. 2d 743, 744 (E.D. Tex. 1998) (citin g Dao, supra). 88 R. Doc. 18 6-1 at 10 – 11. 89 See, e.g., Calelly v. Conroe Indep. Sch. Dist., 193 F.3d 516 (5th Cir. 1999) (per curiam ) (citin g Gardn er v. Sch. Bd. Caddo Parish, 958 F.2d 10 8, 110 (5th Cir. 1992)). 85 18 For these reasons, McNealy’s causes of action against Motiva and the Shell Defendants under the ADA m ust be dism issed without prejudice for his failure to exhaust his adm inistrative rem edies. c. 42 U.S.C. § 1981 Title 42, United States Code, Section 1981, prescribes an indepen dent cause of action against private, non-governm ental actors for discrim ination on the basis of race. 90 Section 1981(a) provides: All persons within the jurisdiction of the Un ited States shall have the sam e right in every State and Territory to m ake and enforce contracts, to sue, be parties, give eviden ce, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, an d shall be subject to like punishm ent, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Section 1981(b), in turn, defines the phrase “m ake and enforce contracts” as “the m aking, perform ance, m odification, and term ination of contracts, and the enjoym ent of all benefits, privileges, term s, and conditions of the contractual relationship.” A m otion to dism iss under Rule 12(b)(6) is designed to test the pleadings. Nevertheless, Motiva and the Shell Defendants attached McNealy’s deposition to their reply m em orandum in support of their m otion to dism iss under Rule 12(b)(6). 91 To further com plicate m atters, McNealy attached Exhibits A, B, R, C, F, and E to his am ended m em orandum in opposition to the m otion to dism iss. 92 These docum ents are outside the pleadings, and they have not been excluded by the Court. In this situation, Rule 12(d) 90 See, e.g., Oden v. Oktibbeha Cnty ., Miss., 246 F.3d 458 , 462 (5th Cir. 20 0 1); see also Patterson v. McLean Credit Union, 485 U.S. 617, 620 (198 8); Gallentine v. Housing Auth. of City of Port Arthur, Tex., 919 F. Supp. 2d 787, 8 0 7– 0 8 (E.D. Tex. 20 13); Charles v . Galliano, No. 10 -811, 20 10 WL 3430 519, at *4 (E.D. La. Aug. 26, 20 10 ). 91 R. Doc. 20 5-1. 92 R. Doc. 222. 19 requires the Court to deny the Motiva and the Shell Defendants’ m otion to dism iss an d, instead, treat the pleading as a m otion for sum m ary judgm ent under Rule 56. 93 When converting a m otion to dism iss to a m otion for sum m ary judgm ent under Rule 12(d), the Court m ust give the parties am ple opportunity to present argum ent and sum m ary judgm ent evidence. The parties m ay not have attached all the relevant docum ents and exhibits they would have attached if they had known the m otion would be treated as a m otion for sum m ary judgm ent. Accordingly, pursuant to Rule 56(e)(1), the Court will allow the parties an opportunity to properly support their argum ents and factual assertions and address the argum ents and factual assertions raised by opposing counsel. The Motiva and Shell Defendants m otion to dism iss McNealy’s Section 1981 claim s under Rule 12(b)(6) is converted to a m otion for sum m ary judgm ent. d. 42 U.S.C. § 1985(2) and (3) McNealy seeks relief against Motiva and the Shell Defendants under Title 42, United States Code, Sections 1985(2) and (3). As stated above with respect to USW International and the Local Union, Section 198 5(2) protects parties and witnesses who seek to attend or testify in federal court. 94 Section 1985(2) is not applicable in this case. McNealy does not allege that Motiva or the Shell Defendants som ehow violated his right to attend or testify in federal court. A review of the third-am ended com plaint reveals no such allegations. McNealy’s claim with respect to Section 1985(2) is dism issed with prejudice. 93 See Fed. R. Civ. P. 12(d). See, e.g., Kush v. Rutledge, 460 U.S. 719, 724 (1983); Kim ble v. D.J. McDuffy , In c., 648 F.2d 340 (5th Cir. 1981); Bry ant v. Miss. Military Dep’t, 519 F. Supp. 2d 622, 628– 29 (S.D. Miss. 20 0 7); Turner v. Bow en , No. 3:0 6-cv-576, 20 0 7 WL 1295787, at *2 (S.D. Miss. May 1, 20 0 7); Ragsdale v. Classroom Teachers of Dallas, No. 3:0 6-Ccv-8 63, 20 0 7 WL 426637, at *4 n.5 (N.D. Tex. Feb. 5, 20 0 7). 94 20 “Section 1985(3) prohibits private conspiracies to deprive persons of equal protection of the laws.”95 To state a claim for relief under Section 1985(3), a plaintiff m ust show, inter alia, “that som e racial, or perhaps otherwise class-based, invidiously discrim inatory anim us [lay] behin d the conspirators’ action.”96 To state a claim under Section 1985(3), the plaintiff m ust allege sufficient facts showing the defendants conspired to discrim inate again st the plaintiff on the basis of his or her race. 97 As m entioned above, a m otion to dism iss under Rule 12(b)(6) is designed to test the pleadings, but Motiva and the Shell Defendants attached McNealy’s deposition to their reply m em orandum in support of their m otion to dism iss under Rule 12(b)(6) 98 and McNealy attached Exhibits A, B, R, C, F, and E to his am ended m em orandum in opposition to the m otion to dism iss. 99 These docum ents are outside the pleadings, but have not been excluded by the Court. Rule 12(d) requires the Court to . 10 0 Rule 12(d) requires the Court to deny the Motiva and the Shell Defen dants’ m otion to dism iss McNealy’s Section 1985(3) claim s and, instead, treat the pleading as a m otion for sum m ary judgm ent under Rule 56. 10 1 The Motiva and Shell Defendants m otion to dism iss McNealy’s Section 1985(3) claim under Rule 12(b)(6) is converted to a m otion for sum m ary judgm ent. 95 Daigle v. Gulf State Utilities Co., Local Union N um ber 2286, 794 F.2d 974, 978 (5th Cir. 1986). Bray v . Alexandria W om en’s Health Clinic, 50 6 U.S. 263, 267– 68 (1993) (intern al quotations om itted) (quotin g Griffin v . Brecken ridge, 40 3 U.S. 825, 833 (1983)). See also David v. Signal Intern ., LLC, No. 0 8 1220 , 20 12 WL 10 759668, at *36 (E.D. La. J an. 4, 20 12). 97 See, e.g., N ew som e v. EEOC, 30 1 F.3d 227, 232 (5th Cir. 20 0 2). 98 R. Doc. 20 5-1. 99 R. Doc. 222. 10 0 See Fed. R. Civ. P. 12(d). 10 1 SeeFed. R. Civ. P. 12(d). 96 21 e. 42 U.S.C. § 1986 As stated above with respect to USW International and the Local Union, Section 198 6 provides for liability against third parties based on their knowledge of Section 1985 violations. Section 1986 does not provide an independent cause of action, but instead requires the existence of a valid claim under Section 1985. 10 2 “A valid § 1985 claim is a prerequisite to a § 1986 claim .”10 3 Because Motiva and the Shell Defendants’ m otion to dism iss McNealy’s Section 1985(3) has been converted to a m otion for sum m ary judgm ent, the Court m ust also convert the m otion to dism iss with respect to Section 198 6 into a m otion for sum m ary judgm ent. The Motiva and Shell Defendants’ m otion to dism iss McNealy’s Section 1986 claim under Rule 12(b)(6) is converted to a m otion for sum m ary judgm ent. f. 29 U.S.C. § 10 0 1, 1132 Title 29, United States Code, Section 10 0 1, m arks the beginning of the Em ployee Retirem ent Incom e Security Act (“ERISA”). ERISA was en acted “to prom ote the interests of em ployees and their beneficiaries in em ployee benefit plans.”10 4 McNealy seeks relief under two statutory sections of ERISA, nam ely Sections 10 0 1 and 1132. 10 5 The only allegation in the third-am ended com plaint that can be construed as invoking the protections of ERISA reads: “Shell violated provisions under 29 U.S.C. § 10 0 1 et seq., by failing to com pensate his disability, and com pelling him to withdraw his 40 1 K pension retirem ent funds.”10 6 In his am ended m em orandum in opposition to the Motiva and Shell 10 2 Bradt v. Sm ith, 634 F.2d 796, 799 n .3 (5th Cir. 1981). Bry an v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 20 0 0 ). 10 4 Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (198 3). See also Massachusetts Mut. Life Ins. Co. v . Russell, 473 U.S. 134, 148 (1985). 10 5 R. Doc. 20 9-1 at 2. 10 6 R. Doc. 114 at 24. 10 3 22 Defendants’ m otion to dism iss, McNealy states that his claim of failure to pay disability benefits is brought against Shell Oil Com pany, Met-Life, and Met-Life Insurance Com pany. 10 7 The Court will assum e that McNealy’s ERISA claim is brought only against his em ployer, Shell Oil, and Met-Life. 10 8 Section 10 0 1 sets forth the congressional findings and declaration of policy associated with ERISA and does not authorize a private cause of action. 10 9 McNealy in his third-am ended com plaint alleges that, “Shell violated provisions under 29 U.S.C. § 10 0 1 et seq., by failing to com pensate his disability, and com pelling him to withdraw his 40 1 K pension retirem ent funds.” 110 In McNealy’s am ended m em orandum in opposition to the m otion to dism iss, 111 he states that he is m aking a breach of contract claim for failure to pay disability benefits, which is a claim under Section 1132(a)(1)(B). Although the ERISA statute provides that the proper plaintiff in a retirem ent plan governed by ERISA is a “participant or ben eficiary,” the statute m akes no m ention of which parties are the proper defendants. 112 The federal appellate circuits are divided as to whether to perm it an ERISA claim against parties other than the plan itself. The Fifth Circuit addressed the issue in Musm eci v. Schw egm ann Giant Super Markets, Inc., where the court held the em ployer was a proper defendant because it acted as both the plan adm in istrator an d the plan sponsor. 113 In this case, McNealy m akes no allegations in any of his am ended com plaints that Shell Oil, his em ployer, was the plan adm inistrator. 10 7 Met-Life Insurance Com pany has been dism issed. McNealy’s ERISA claim against Met-Life is dealt with in Section V, in fra. 10 9 See 29 U.S.C. § 10 0 1. 110 R. Doc. 114 at 24. 111 R. Doc. 222. 112 See Harris Trust and Sav. Bank v. Salom on Sm ith Barney , Inc., 530 U.S. 238, 246 (20 0 0 ). 113 332 F.3d 339 (5th Cir. 20 0 3); see also W ilson v. Kim berly -Clark Corp., 254 Fed. App’x 28 0 , 287 (5th Cir. 20 0 7) (quoting Musm eci, 332 F.3d at 350 ) (“[W]here the em ployer was both the ‘plan adm in istrator’ and ‘plan sponsor’ and the relevant plan has ‘no m eaningful existence separate from ’ the em ployer, it was proper to nam e the em ployer as a defendant.”). 10 8 23 Instead, McNealy alleges that he has a viable ERISA claim against Shell Oil because it “fail[ed] to com pensate his disability, and com pel[ed] him to withdraw his 40 1 K pension retirem ent funds.”114 Based on the Fifth Circuit’s reasoning in Musm eci, the Court finds that McNealy fails to allege sufficient facts that Shell Oil is a proper party defendant because it is the plan adm inistrator. As a result, McNealy’s claim s against Shell Oil under 29 U.S.C. § 10 0 1, et seq. are dism issed with prejudice. g. 29 U.S.C. § 141, et seq. McNealy represents he is pursuing causes of action against Motiva and the Shell Defendants under 29 U.S.C. § 141, et seq. In particular, McNealy indicates his causes of action are under 29 U.S.C. § 151. As discussed above with respect to USW International an d the Local Union, the National Labor Relations Act of 1935, as am ended by the Labor Managem ent Relations Act, is codified at 29 U.S.C. § 141, et seq. Section 151 sets forth, generally, the “findings and declarations of policy” behind the National Labor Relations Act. 115 As noted above, McNealy cites Section 151 in his third-am ended com plaint. McNealy has failed to state a claim for relief under Title 29, United States Code, Section 151, against Motiva and the Shell Defendants. McNealy’s claim s under Section 151 are dism issed with prejudice. The only other section of the National Labor Relations Act referenced in McNealy’s third-am ended com plaint is Section 141. 116 McNealy alleges Motiva and the Shell Defendants “had an obligation under the collective bargaining agreem ent to enforce its term s and conditions, but breached their duty according to § 141.”117 The Court construes 114 R. Doc. 114 at 24. See Eastex, Inc. v. N .L.R.B., 437 U.S. 556, 565 n.14 (1978); N .L.R.B. v . Brow n Paper Mill Co., 10 8 F.2d 867, 870 (5th Cir. 1940 ). 116 R. Doc. 114 at 1, 22. 117 R. Doc. 114 at 22. 115 24 McNealy’s causes of action under Section 141 as claim s under Section 30 1 of the Labor Managem ent Relations Act, as Section 141 is the first statutory section of the National Labor Relations Act, as am ended by Section 30 1 of the Labor Managem ent Relations Act. 118 McNealy’s claim s against Motiva and the Shell Defendants under 29 U.S.C. § 141 are, in reality, claim s under Section 30 1 of the Labor Managem ent Relations Act for breach of a collective bargaining agreem ent, or CBA. As noted above, Section 30 1 provides an individual em ployee with a federal cause of action against his or her em ploy er for breach of a collective bargaining agreem ent. 119 An em ployee’s cause of action against a union for breach of the duty of fair representation is im plied under Section 30 1. 120 “Because of the intricate relationship between the duty of fair representation and the enforcem ent of a collectively bargained contract, the two causes of action have becom e ‘in extricably interdepen dent’ and known as a ‘hybrid § 30 1/ fair representation suit.’”121 An “indispensable predicate” to a plaintiff’s Section 30 1 claim against an em ployer is an unfair representation claim against his or her union. 122 Stated differently, “[i]t is an ‘indispensable predicate to a section 30 1 claim against the em ployer to establish that the union has breached its duty of fair representation.”123 “[A] plaintiff m ust prevail upon his 118 See, e.g., Thom as v. LTV Corp., 39 F.3d 611, 614 (5th Cir. 1994). Bache v. Am . Tel. & Tel., 8 40 F.2d 283, 287 (5th Cir. 198 8) (citations om itted). 120 Id. (citing Vaca v. Sipes, 386 U.S. 171 (1967)). 121 Id. at 287– 8 8 (quotin g DelCostello v. Int’l Brotherhood of Team sters, 462 U.S. 151, 164– 65 (1983)). “The interdependency arises from the nature of the collective bargaining agreem ent. If the arbitration and grievance procedure is the exclusive and final rem edy for breach of the collective bargain ing agreem ent, the em ployee m ay not sue his em ployer under § 30 1 until he has exhausted the procedure. Further, he is bound by the procedure’s result un less he proves the union breached its duty of fair representation.” Daigle v. Gulf State Util. Co., 794 F.2d 974, 977 (5th Cir. 1986) (citations om itted). 122 Daigle v. Gulf State Util. Co., 70 4 F.2d 974, 977 (5th Cir. 1986) (quotations om itted). See also Landry v . The Cooper/ T. Sm ith Stevedoring Co., Inc., 8 80 F.2d 846, 851 (5th Cir. 1989). 123 Barrett v. Ebasco Constructors, Inc., 8 68 F.2d 170 , 172 (5th Cir. 1989). “Establishing the Un ion’s breach of duty of fair representation is an ‘indispensable predicate’ for a section 30 1 action against the [em ployer].” Saw y er v. Am . Postal W orkers Union, AFL-CIO, No. 3:0 9-cv-1780 , 20 11 WL 60 29925, at *6 (N.D. Tex. Nov. 30 , 20 11) (citin g Thom as v. LTV Corp., 39 F.3d 611, 621– 22 (5th Cir. 1994)). 119 25 unfair representation claim before he m ay even litigate the m erits of his § 30 1 claim against the em ployer.”124 The Court has converted the USW International and the Local Union’s m otions to dism iss under Rule 12(b)(6) to m otions for sum m ary judgm ent. As a result, the Motiva and Shell defendants’ m otion to dism iss McNealy’s Section 141 claim s under Rule 12(b)(6) m ust also be converted to a m otion for sum m ary judgm ent. h. Article III, Section 2, Clause 1 of the United States Constitution Article III, Section 2, Clause 1, of the United States Constitution defin es the judicial power of federal courts. Article III, Section 2, Clause 1, does not provide a private right of action. Any cause of action McNealy attem pts to assert under Article III, Section 2, Clause 1, of the United States Constitution m ust be dism issed with prejudice. III. Sa u d i Re fin in g, In c. ( R. D o c. 13 8 , 2 12 ) Saudi Refining, Inc. (“Saudi Refining”) seeks sum m ary judgm ent dism issing McNealy’s claim s. McNealy pursues causes of action against Saudi Refining under (1) 42 U.S.C. § 198 1; and (2) 42 U.S.C. § 1985(2) and (3). 125 McNealy also argues Saudi Refining is liable under the state-law theory of vicarious liability for the intentional acts and om issions of Motiva’s adm inistrators, m anagers, staff, agents, representatives, and successors. 126 McNealy’s claim s against Saudi Refining are based entirely on Saudi Refining’s 50 percent ownership interest in Motiva Enterprises, LLC, 127 and McNealy’s argum ent that Saudi Refin ing is responsible for the actions of its alter ego, Motiva. 128 In the third- 124 United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 67 (1981). R. Doc. 20 9-1 at 3. 126 R. Doc. 20 9-1 at 3. 127 R. Doc. 114 at 5. 128 Doc. 190 -2 at 3. 125 26 am ended com plaint, McNealy alleges that Saudi Refining and the Shell Defendants “equally own and operate Motiva Enterprises, LLC[,] through [a] joint venture.” 129 McNealy alleges Saudi Refining, as part-owner of Motiva, is vicariously liable for Motiva’s “intentional acts / om issions” and the “intentional nature causing injuries or dam ages” he sustained. 130 In support of its m otion for sum m ary judgm ent, 131 Saudi Refining attaches its statem ent of undisputed facts, 132 and the declaration of Darryl R. Wong. 133 Wong has been em ployed by Saudi Refining since 20 0 7 and his duties and responsibilities include oversight of Saudi Refining’s investm ent in Motiva. 134 Wong declares that Saudi Refining did not em ploy any workers at the Motiva refinery in Norco; that Motiva, Shell Chem ical, L.P., and Shell Oil are entirely separate entities from Saudi Refining; that Motiva has its own em ployees and runs its Norco refinery without any day-to-day involvem ent by Saudi Refining; that Saudi Refining does not have any role in hiring, direction of work, discipline, or firing of Motiva em ployees at the refinery; that Saudi Refining is not a party to a contract with McNealy or the Union; that Saudi Refining was not aware of and played no role in the incidents alleged by McNealy; and that Saudi Refining had no involvem ent in the Met-Life benefits plan or the determ in ation of benefits under that plan. 135 McNealy argues the declaration of Wong is unsworn and, as a result, m ay not be considered on sum m ary judgm ent. McNealy is incorrect, as the declaration was given under pen alty of perjury that the statem ents therein are true and correct. The Fifth Circuit 129 R. Doc. 114 at 16. R. Doc. 114 at 17. 131 R. Doc. 138 -2. 132 R. Doc. 138 -3. 133 R. Doc. 138 -2. 134 R. Doc 138-3 at 1, n.1. 135 R. Doc. 138 -2 at 1– 3. 130 27 has held that such a statem ent m ay be considered on sum m ary judgm ent. 136 McNealy also disputes m ost of Saudi Refining’s Statem ent of Undisputed Facts, 137 but offers no com petent sum m ary judgm ent evidence to establish that the facts as stated by Saudi Refining are in dispute. 138 The Court finds that there are no m aterial facts in dispute with respect to the basis of Saudi Refin ing’s m otion for sum m ary judgm ent. The only rem ain ing issue is whether Saudi Refining is entitled to judgm ent as a m atter of law that Saudi Refining is not liable for the alleged conduct of Motiva or its em ployees as a result of its ownership interest in Motiva, and that there are no grounds for holding Saudi Refining liable because it had no involvem ent in the acts of which McNealy com plains. An owner of a lim ited liability com pany m ay not be held liable for any debt, obligation, or liability of the lim ited liability com pany based solely on its status as an owner, and it is not a proper party to an action against the lim ited liability com pany based solely on its status as an owner. 139 The sam e is true under federal and state em ploym ent discrim ination laws. Courts have routinely recognized the im portant public policy considerations underlying corporate separateness and refused to pierce the corporate veil 136 See N issho-Iw ai Am . Corp. v. Kline, 845 F.2d 130 0 , 130 6– 0 7 (5th Cir. 198 8) (citin g 28 U.S.C. § 1746). R. Doc. 138 -3. 138 R. Doc. 190 -2. 139 See La. Rev. Stat. § 12:1320 (B) ([N]o m em ber, m anager, em ployee or agent of a lim ited liability com pany is liable in such capacity for a debt, obligation, or liability of the lim ited liability com pany.”); La. Rev. Stat. § 12:1320 (C) (A m em ber, m anager, em ployee, or agent of a lim ited liability com pany is not a proper party to a proceeding by or against a lim ited liability com pany, except when the object is to enforce such a person’s rights against or liability to the lim ited liability com pany.”). Motiva is a Delaware corporation and Delaware law, like Louisiana law, also lim its the liability of LLC m em bers for the debts, obligations, and liabilities of the LLC. See 6 Del. C. § 18-30 3(a) (“The debts, obligations, and liabilities of a lim ited liability com pany, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the lim ited liability com pany, and no m em ber or m anager of a lim ited liability com pany shall be obligated personally for any such debt obligation or liability of the lim ited liability com pany solely by reason of being a m em ber or acting as a m anager of the lim ited liability com pany.”). 137 28 in the em ploym ent discrim in ation context. 140 The doctrin e of lim ited liability “creates a strong presum ption that a parent corporation is not the em ployer of its subsidiary’s em ployees.”141 Thus, “only eviden ce of control suggesting a sign ificant departure from the ordinary relationship between a parent and its subsidiary – dom ination sim ilar to that which justifies piercing the corporate veil – is sufficient to rebut this presum ption, and to perm it an inference that the parent corporation was a final decision-m aker in its subsidiary’s em ploym ent decision.”142 The Fifth Circuit considers four factors in determ ining whether an entity related to an em ployer m ay be liable under Title VII as a joint em ployer, in cluding (1) interrelation of operations, (2) centralized control of labor relations, (3) com m on m anagem ent, and (4) com m on ownership or financial control. 143 The second of these four factors, however, is the key factor, “such that courts have focused exclusively on one question: which entity m ade the final decisions regarding em ploym ent m atters relating to the person claim ing discrim ination.” 144 The courts of this district have used the sam e analysis when addressing the liability of an owner of a lim ited liability com pany under federal and state em ploym ent discrim in ation laws. 145 It is undisputed that Saudi Refining was not McNealy’s em ployer; that Saudi Refining did not hire, direct the work of, supervise, or fire Motiva’s em ployees; and that 140 Skidm ore v. Precision Printing & Packaging, Inc., 188 F.3d 60 6, 616-17 (5th Cir. 1999) (finding that parent com pany was not liable for alleged em ploym ent discrim ination claims against subsidiary); Bass v. Lifecare Holdings, Inc., No. 99-1864, 20 0 0 WL 377815, at *3– 4 (E.D. La. Apr. 12, 20 0 0 ) (sam e); W ilkerson v. USI Gulf Coast Inc., No. 0 1-2748, 20 0 2 WL 126840 5, at *3 (E.D. La. J un. 4, 20 0 2) (refusing to find em ployer’s holding com pany liable for alleged em ploym ent discrim ination by em ployer). 141 Bass, 20 0 0 WL 377815, at *3– 4 (quoting Lucky v . FoxMey er Health Corp., 129 F.3d 773, 777 (5th Cir. 1997)). 142 Bass, 20 0 0 WL 377815, at *3– 4. 143 Trevino v. Celanese Corp., 710 F.2d 397 (5th Cir. 1983). 144 Skidm ore, 18 8 F.3d at 617. 145 See, e.g., Bass, 20 0 0 WL 377815. 29 Saudi Refining had no involvem ent in the decisions to discipline and term inate McNealy or any of the other conduct of which McNealy com plains. It is also undisputed that Saudi Refining was not a party to the collective bargaining agreem ent between Motiva and the Union. 146 Saudi Refining is entitled to sum m ary judgm ent and the 42 U.S.C. § 1981, 42 U.S.C. § 198 5(2) and §1985(3) claim s against it are dism issed with prejudice. IV. Equ al Em p lo ym e n t Op p o rtu n ity Co m m is s io n ( R. D o c. 14 6 ) The Equal Em ploym ent Opportunity Com m ission (the “EEOC”) m oves to dism iss McNealy’s claim s against it under Rule 12(b)(1) and Rule 12(b)(6). McNealy alleges he filed com plaints with the EEOC in 20 12, 20 13, and 20 15, but the EEOC “failed to investigate” his com plaints. 147 McNealy thus alleges the EEOC denied him his right to petition the court under the First Am endm ent to the United States Constitution. 148 McNealy also alleges the EEOC had a “duty to investigate, but failed to do so,” in violation of the due process clause of Fifth Am endm ent. 149 McNealy’s counsel has acknowledged that his causes of action against the EEOC are for violations of (1) the First Am endm ent’s petition and assem bly clauses; (2) the Fifth Am en dm ent’s due process clause; (3) the Federal Tort Claim s Act, 28 U.S.C. § 1346; and (4) La. Civ. Code art. 2315. 150 a. The First & Fifth Am endm ents to the United States Constitution McNealy asserts causes of action for violations of the First and Fourteenth Am endm ents against the EEOC. The EEOC correctly points out that McNealy’s claim s 146 R. Doc. 138 -3. R. Doc. 114 at 13. 148 R. Doc. 114 at 13. 149 R. Doc. 114 at 13. 150 Counsel for Plaintiff agreed that the chart attached to the Minute Entry of the status conference held on J uly 8, 20 16 included all causes of action against each defendant. R. Doc. 20 9-1 at 4. 147 30 against it are barred under the doctrine of sovereign im m unity. 151 “The basic rule of federal sovereign im m unity is that the United States cannot be sued without the con sent of Congress.” 152 This im m unity from suit extends to the agencies and officers of the United States, such as the EEOC. 153 Thus, suits against agencies of the United States are barred, unless there is a waiver of sovereign im m unity. “A waiver of the Federal Governm ent’s sovereign im m unity m ust be unequivocally expressed in the statutory text and will not be im plied.” 154 The “[p]laintiff bears the burden of showing Congress’s unequivocal waiver of sovereign im m unity.” 155 Congress has not waived the sovereign im m unity of the United States or its agencies with respect to constitutional violations. 156 Thus, the United States, the agencies of the United States, including the EEOC, and federal officers or em ployees acting in their official capacities, are im m une from suit for federal constitutional violations under the doctrine of sovereign im m unity. 157 These 151 R. Doc. 146-1 at 6. Block v. N orth Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S. 273, 287 (198 3). 153 Haw aii v. Gordon, 373 U.S. 57, 58 (1963). See also F.D.I.C. v. Mey er, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign im m unity shields the Federal Governm ent and its agencies from suit.”). For the proposition that the EEOC is an agency of the United States for purposes of sovereign im m unity, see N ew som e v. E.E.O.C., 30 1 F.3d 227, 232– 33 (5th Cir. 20 0 2). 154 Lane v. Pena, 518 U.S. 18 7, 192 (1996). See also Soudavar v. F.A.A., 45 F. App’x 323 (5th Cir. 20 0 2) (quotin g Interfirst Bank Dallas, N .A. v. United States, 769 F.2d 299, 310 (5th Cir. 1985)) (internal quotation m arks om itted) (“Waiver of the United States’ sovereign im m unity m ust be expressly stated by congress and should not be inferred.”). 155 St. Tam m an y Parish ex rel. Davis v. Fed. Em ergency Mgm t. Agency , 556 F.3d 30 7, 315 (5th Cir. 20 0 9) (citations om itted). See also Freem an v. United States, 556 F.3d 326, 334 (5th Cir. 20 0 9); Alcorn v . Shinseki, No. 0 9-3744, 20 0 9 WL 3833975, at *2 (E.D. La. Nov. 10 , 20 0 9) (“The com plaint at no point m entions a waiver of sovereign im m unity for this type of suit, m uch less an un equivocal one, and he has not responded to this m otion to dism iss. Alcorn has therefore not carried his burden of dem onstratin g ‘Congress’s un equivocal waiver of sovereign im m unity,’ and the Court will dism iss the action for want of subject m atter jurisdiction.”). 156 Interfirst Bank Dallas, N .A. v. United States, 769 F.2d 299, 30 9 (5th Cir. 1985) (“The Constitution does not waive the Govern m ent’s sovereign im m un ity in a suit for dam ages. . . . Suits for dam ages against the United States based on the Constitution are not con tem plated by Bivens and its progeny.”). See also W heeler, 20 13 WL 10 91242, at *5 (citing Interfirst) (“[T]he Un ited States has n ot waived its sovereign im m un ity for constitutional torts . . . .”). 157 “A long line of cases holds that constitutional claim s for dam ages m ay not be brought against the federal govern m ent itself, but m ay proceed only against governm ent officials on a Bivens theory.” J am es E. Pfander, David Baltm an is, Rethinking Bivens: Legitim acy and Constitutional Adjudication, 98 GEO. L.J . 117, 135 (20 0 9) (citin g cases). 152 31 claim s against the EEOC m ust be dism issed with prejudice under Rule 12(b)(1) for lack of subject m atter jurisdiction. The Court notes that, in any event, the First & Fifth Am endm en ts in-an d-ofthem selves provide no independent cause of action. 158 Instead, Section 1983 is generally the appropriate vehicle to enforce rights guaranteed by the Constitution. 159 Section 1983, however, only “provides a cause of action against any person who deprives an individual of federally guaranteed rights ‘under color’ of state law .”160 Section 198 3 does not provide a cause of action against the federal governm ent or individuals acting under color of federal law. The Suprem e Court’s decision in Bivens v. Six Unknow n Agents of the Federal Bureau of N arcotics is the federal counterpart to Section 1983, as Bivens extends the protections afforded by Section 1983 to parties injured by federal actors, who are not otherwise liable under Section 1983. 161 The Court notes, however, that “Bivens authorizes suits only again st individual federal officers, n ot against the United States.”162 In this case, McNealy has no Section 1983 claim against the United States or its agencies and has not 158 Berger v. City of N ew Orleans, 273 F.3d 10 95 (5th Cir. 20 0 1) (citing Hearth, Inc. v. Dep’t of Public W elfare, 617 F.2d 381, 38 2 (5th Cir. 1980 )). See also Garrett v. City of Houston, Tex., 10 2 F. App’x 863, 864 (5th Cir. 20 0 4). 159 See Gonzaga Univ. v. Doe, 536 U.S. 273, 28 4 (20 0 2) (notin g Section 1983 provides a m echanism for enforcin g individual rights ensured by federal statutes and the Un ited States Constitution). 160 Filarsky v. Delia, 132 S. Ct. 1657, 1661 (20 12) (citin g 42 U.S.C. § 1983) (em phasis added). 161 Abate, 993 F.2d at 110 – 11. See also Solesbee v . N ation, No. 3:0 6-cv-0 333, 20 0 8 WL 244343, at *7 (N.D. Tex. J an. 29, 20 0 8) (internal quotation m arks om itted) (citations om itted) (“Bivens, of course, is the counterpart to 42 U.S.C. § 1983, and extends the protections afforded under § 1983 to parties in jured by federal actors.”); see also Bivens v. Six Unknow n N am ed Agents of Federal Bureau of N arcotics, 40 3 U.S. 388 , 397 (1971). 162 W heeler v. Ceniza, No. 3:12-cv-18 98 , 20 13 WL 10 91242, at *5 (N.D. Tex. Mar. 15, 20 13) (citin g W illiam son v. United States Dep’t of Agriculture, 815 F.2d 368, 380 (1987) (n oting Bivens action only applies against federal officers “in their individual capacities . . . . [while t]he Un ited States and its officers in pursuit of their official duties rem ain protected by sovereign im m un ity”)). “A Bivens claim is a judicially created counterpart to a 42 U.S.C. § 1983 civil rights action and is properly brought only against federal officials who have allegedly denied a plaintiff’s constitutional rights, in their in dividual capacities. An extension of a Bivens action to federal agencies of the Federal Governm ent is not supported by the logic of Bivens.” Brow n v. Federal Bureau of Investigation, No. 5:11-cv-63, 20 12 WL 10 388 0 9, at *1 (S.D. Miss. Feb. 1, 20 12) (citations om itted). 32 asserted a Bivens action against any federal officers or em ployees in their individual capacities. To the extent that the Plaintiff brings Section 1983 claim s against the EEOC, even if the United States had waived its sovereign im m unity, those claim s would be dism issed with prejudice under Rule 12(b)(1) for lack of subject m atter jurisdiction. b. The Federal Tort Claim s Act McNealy argues the “Federal Tort Claim s Act (“FTCA”) waives [the] sovereign im m unity of the governm ent, and allows [suits] for dam ages.”163 It is well-accepted the FTCA is the exclusive rem edy for tort suits against the United States, and the FTCA thus operates as a lim ited waiver of sovereign im m unity. 164 The FTCA’s waiver of sovereign im m unity is, however, subject to several exceptions. 165 As a general rule, “[i]t is beyond dispute that the United States, and not the responsible agen cy or em ployee, is the proper party defen dant” in an FTCA suit. 166 Thus, McNealy does not have a valid FTCA claim against the EEOC. The FTCA claim against the EEOC m ust be dism issed with prejudice under Rule 12(b)(1) for lack of subject m atter jurisdiction. V. Me tro p o litan Life In s . Co . ( R. D o c. 2 10 ) Met-Life seeks sum m ary judgm ent under Rule 56 of the Federal Rules of Civil Procedure. Met-Life argues McNealy’s claim s against it should be dism issed with prejudice on sum m ary judgm ent, as there are no genuine issues of m aterial act, an d MetLife is entitled to judgm ent as a m atter of law. McNealy’s causes of action against Met- 163 R. Doc. 151-1 at 1. W illougby v. United States ex rel. United States Dep’t of the Arm y , 730 F.3d 476, 479 (5th Cir. 20 13) (citing 28 U.S.C. § 2679(a)). 165 See, e.g., Davila v. United States, 713 F.3d 248, 256 (5th Cir. 20 13). 166 Galvin v. Occupational Safety & Health Adm in., 860 F.2d 181, 183 (5th Cir. 1998). See also Talavera v. United States, No. 4:14-cv-0 3329, 20 16 WL 4398678, at *4 (S.D. Tex. Aug. 17, 20 16); Valentine v. Veterans Affairs, No. 3:16-cv-1221, 20 16 WL 4257444, at *2 (N.D. Tex. J uly 13, 20 16) (“[A]n FTCA claim brought against a federal agency or em ployee rather than the Un ited States shall be dism issed for want of jurisdiction .”); Schexnay der v. St. Charles Parish, Nos. 12-416, 12-542, 20 12 WL 1357784, at *2 (E.D. La. Apr. 19, 20 12); Michalik v. Herm ann, No. 99-3496, 20 0 1 WL 434489, at *1 (E.D. La. Apr. 26, 20 0 1). 164 33 Life are for violations of (1) 29 U.S.C. § 10 0 1; (2) La. Civ. Code art. 190 6; (3) La. Rev. Stat. § 22:655; (4) La. Rev. Stat. 22:1269; (5) La. Rev. Stat. 22:1892; and (6) La. Rev. Stat. § 22:1973. 167 Title 29, United States Code, Section 10 0 1, m arks the beginning of the Em ployee Retirem ent Incom e Security Act (“ERISA”). Section 10 0 1 sets forth the congression al findings and declaration of policy associated with ERISA and, itself, does not authorize a private cause of action. The Court has assum ed McNealy intends to pursue a cause of action under Section 1132(a)(1)(B). Section 1132(a)(1)(B) authorizes a private cause of action by an ERISA participant or beneficiary “to recover benefits due to him , to enforce his rights under the term s of the plan, or to clarify his rights to future benefits under the term s of the plan.” 168 A claim ant who is denied benefits under an ERISA plan m ust exhaust all adm in istrative rem edies afforded by the plan before instituting litigation for recovery of benefits. 169 A claim ant’s failure to exhaust is proper grounds for dism issal. 170 In this case, it is undisputed that Met-Life issued a group insurance policy to Shell Oil Com pany, 171 and the long-term disability benefits under the policy are governed by ERISA. 172 It is also undisputed that McNealy participated in an d was covered by the group insurance policy, 173 and that McNealy subm itted a claim for long-term disability benefits 167 In his m em orandum in opposition to Met-Life’s m otion for sum m ary judgm ent, the Plaintiff states that he is brin gin g a claim against Met-Life under 29 U.S.C. Section 50 2(a). R. Doc. 220 -1 at 1. Counsel for Plaintiff agreed that the chart attached to the Minute Entry of the status conference held on J uly 8, 20 16 included all causes of action against each defendant. No claim against Met-Life under 29 U.S.C. Section 50 2(a) is listed, Doc. 20 9-1 at 5, and such a claim is not addressed herein . 168 29 U.S.C. § 1132(a)(a)(B). 169 Lacy v. Fulbright & Jaw orski, 40 5 F.3d 254, 256 (5th Cir. 20 0 5) (per curiam ). 170 Medina v. Anthem Life Ins. Co., 983 F.2d 29, 33 (5th Cir. 1993). 171 R. Doc. 210 -3 at 1, ¶1; R. Doc. 220 -3 at 1, ¶1. 172 R. Doc. 210 -3 at, ¶3; R. Doc. 220 -3 at 1– 2, ¶3. Plaintiff’s short-term disability benefits were paid. He was paid lon g-term disability benefits for som e period of tim e but those ben efits were term inated on March 25, 20 14. R. Doc. 210 -2. This term ination is the basis for Plaintiff’s ERISA claim in this action. To the extent Plaintiff m akes claim s against Met-Life based on Louisiana law, rather than ERISA, those claim s are not address in this section . 173 R. Doc. 210 -3 at 1, ¶4; R. Doc. 220 -3 at 2, ¶4. 34 under the policy. 174 The parties dispute, however, whether McNealy exhausted the adm in istrative rem edies available under the group policy with respect to his long-term disability claim . 175 In support of its m otion for sum m ary judgm ent, Met-Life offers a declaration executed by Matthew Hallford, a Met-Life litigation specialist. 176 The declaration states (1) McNealy subm itted a claim for long-term disability benefits under the group insurance policy, (2) the claim was term inated by Met-Life on March 25, 20 14, and (3) McNealy did not adm inistratively appeal the term ination. 177 Met-Life argues it has negated an essential elem ent of McNealy’s claim as he has not exhausted his adm in istrative rem edies. McNealy disputes Met-Life’s representation that he did not appeal the term ination of his long-term disability ben efits claim . 178 In McNealy’s statem ent of undisputed facts, he states that he forwarded a letter to Met-Life indicating his “intent to appeal” the term ination of his long-term disability claim . 179 Hallford declares in his affidavit that the docum ents attached are included in the adm inistrative record for McNealy. 180 Included in the attachm ents is the letter from McNealy to Met-Life dated March 24, 20 14 181 and the letter from Met-Life to McNealy dated March 25, 20 14. 182 Both letters reference Claim # 73120 911110 6, which is the Plaintiff’s claim for long-term disability ben efits. In reality, this is not a factual dispute, but an issue of whether Met-Life 174 R. Doc. 210 -3 at 1, ¶5; R. Doc. 220 -3 at 2, ¶5. R. Doc. 210 -3 at 2, ¶¶6– 8; R. Doc. 220 -3 at 2, ¶¶6– 8 . 176 R. Doc. 210 -2 at 1– 2 (Declaration of Matthew Hallford). Although this declaration is unsworn, Hallford does declare under penalty of perjury that the statem en ts contained therein are true and correct. The Fifth Circuit has held that such a statem ent m ay be considered on sum m ary judgm en t. See N issho-Iw ai Am . Corp, 845 F.2d at 130 6– 0 7. 177 R. Doc. 210 -2 at 2 (Declaration of Matthew Hallford). 178 See R. Doc. 220 -3 at 2. 179 R. Doc. 220 -2 at 3. 180 R. Doc. 210 -2 at 2, at M-0 332 and M-0 335, respectively. 181 R. Doc. 210 -2 at 58. 182 R. Doc. 210 -2 at 59– 60 . 175 35 is entitled to judgm ent as a m atter of law. The resolution of this dispute turns on whether McNealy’s March 24, 20 14 letter constituted an appeal of the term ination of his ben efits. Met-Life attached the Shell Long Term Disability Ben efits Plan/ SPD to the declaration of Matthew Hallford. 183 Met-Life argues that its March 25, 20 14 letter inform ed Plaintiff of the plan’s requirem ent that his written appeal be filed within 18 0 days of his receipt of the denial an d that it include “[a]n explanation of why you are appealing the in itial determ ination.”184 In its letter, Met-Life also requested the following additional inform ation from the Plaintiff: m edical records from Septem ber 20 13 which are to include physical exam in ation findin gs; notes to address any im provem ents, restrictions, and lim itations that would prevent a return to work due to sleep apnea from all treating providers; and any additional com m ents, docum ents, records or other inform ation relating to the claim that the Plaintiff deem ed appropriate for Met-Life to give his appeal proper consideration. 185 Met-Life argues the Plaintiff’s March 24, 20 14 letter was not sufficient to satisfy the requirem ents of the plan with respect to the filing of an appeal, as it was only notice of an intent to appeal, did not contain an explanation of why he was appealing the determ ination, and did not include the inform ation requested by Met-Life. The Plaintiff argues his letter satisfied the requirem ents of the plan and exhausted his adm inistrative rem edies and that the additional inform ation requested by Met-Life was not necessary, as Met-Life already had a m edical release signed by him and m edical inform ation sufficient to justify his claim . 186 183 R. Doc. 210 -1 at 3. R. Doc. 210 -2 at 38. 185 R. Doc. 210 -1 at 4. 186 R. Doc. 2210 -1 at 8. 184 36 The Fifth Circuit has held that notice of the intent to file an appeal is not an appeal and, instead, is m erely the expression of an intent to appeal. 187 The Fifth Circuit held further in the Sw anson case that the failure to include factual or substantive statem ents in a notice of appeal provides nothing for the insurer to consider on appeal and does not constitute an appeal. 188 This Fifth Circuit decision is on point with the issue now before this Court. The Court finds that Plaintiff did not exhaust his adm inistrative rem edies with respect to Met-Life’s term ination of his ben efits claim . His March 24, 20 14 letter was notice of an intent to appeal rather than an appeal, did not contain an explan ation of why he was appealing the determ ination, and did not include the inform ation requested by Met-Life. Because McNealy failed to exhaust his adm inistrative rem edies, he is unable to m aintain a cause of action in this court against Met-Life under Section 1132 for the denial of ERISA benefits. The sole question rem aining is whether McNealy’s Section 1132 claim against MetLife should be dism issed with prejudice or without prejudice. “While failure to exhaust adm in istrative rem edies usually results in dism issal without prejudice, when exhaustion is no longer possible, dism issal m ay be with prejudice.” 189 Met-Life’s term ination of benefits letter is dated March 24, 20 14. It is clear that the applicable tim e lim it for exhaustion of McNeal’s adm inistrative rem edies has passed. As a result, McNealy’s Section 1132 claim against Met-Life is dism issed with prejudice. 187 Sw anson v. Hearst Corp. Long Term Disability Plan, 586 F.3d 10 16, 10 18 – 19 (5th Cir. 20 0 9). Id. at 10 19. In Holm es v. Proctor & Gam ble Disability Benefit Plan, 228 F. App’x 377 (5th Cir. 20 0 7), an unpublished per curiam opin ion, the Fifth Circuit held notice of intent to appeal did not am ount to substantial com pliance with a plan’s procedures. 189 Daw son Farm s, LLC v. Farm Serv . Agency , 50 4 F.3d 592, 60 7 (5th Cir. 20 0 7). 188 37 VI. All D e fe n d an ts ( State Law Claim s ) McNealy’s other claim s again st the Defendants are state law claim s over which the Court possesses only supplem ental jurisdiction. Title 28, United States Code, Section 1367(c), provides that district courts m ay declin e to exercise supplem ental jurisdiction over state law claim s if, inter alia, “the district court has dism issed all claim s over which it has original jurisdiction.” Because the Court converted certain of Defendants’ m otions to sum m ary judgm ent m otions, the Court defers ruling on whether to exercise supplem ental subject m atter jurisdiction on McNealy’s state claim s until after the Court rules on the m otions for sum m ary judgm ent. CON CLU SION For the foregoing reasons, IT IS ORD ERED that the pen ding dispositive m otions filed by the Defen dants are GRAN TED IN PART and D EFERRED IN PART. 190 IT IS FU RTH ER ORD ERED that McNealy’s federal claim s against USW International and the Local Union under 42 U.S.C. Section 30 1; 42 U.S.C. § 1985(3); 42 U.S.C. § 1986; and 29 U.S.C. § 141 are D EFERRED and converted to m otions for sum m ary judgm ent. 191 IT IS FU RTH ER ORD ERED that McNealy’s federal claim s against USW International and the Local Union under 42 U.S.C. § 1985(2) and 29 U.S.C. § 151 are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that McNealy’s federal claim s against Motiva and the Shell Defen dants under 42 U.S.C. § 1985(2); 29 U.S.C. § 10 0 1 and 1132; 29 U.S.C. § 151; and Article III, Section 2, Clause 1 of the United States Constitution are D ISMISSED 190 R. Docs. 117, 118 , 121, 138 , 146, 210 , 215, 216. At the status conference scheduled on October 28 , 20 16, the Court will discuss whether additional discovery is needed and the tim in g of the presentation of additional briefing and m aterials to the Court. 191 38 W ITH PREJU D ICE. McNealy’s Title VII and ADA claim s against Motiva and the Shell Defendants are D ISMISSED W ITH OU T PREJU D ICE for failure to exhaust adm in istrative rem edies. McNealy’s claim s under 42 U.S.C. § 1981; 42 U.S.C. § 1985(3); 42 U.S.C. § 1986; and 42 U.S.C. § 141 are D EFERRED and converted to m otions for sum m ary judgm ent. 192 IT IS FU RTH ER ORD ERED that McNealy’s federal claim s against Saudi Refining, Inc., under 42 U.S.C. § 1981 and 42 U.S.C. § 1985(2) and (3) are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that McNealy’s federal claim s against the EEOC under the First and Fifth Am endm ents to the United States Constitution and the Federal Tort Claim s Act are D ISMISSED W ITH PREJU D ICE for lack of subject m atter jurisdiction. IT IS FU RTH ER ORD ERED that McNealy’s federal claim against Met-Life under 29 U.S.C. § 10 0 1 is D ISMISSED W ITH PREJU D ICE for failure to exhaust adm in istrative rem edies. IT IS FU RTH ER ORD ERED that the Court D EFERS ruling on McNealy’s state law claim s until after its rulings on the m otions for sum m ary judgm ent filed in accordance with the Court’s scheduling order. 193 N e w Orle a n s , Lo u is ian a, th is 17th d ay o f Octo be r, 2 0 16 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 192 At the status conference scheduled on October 28, 20 16, the Court will discuss whether additional discovery is needed and the tim in g of the presentation of additional briefing and m aterials to the Court. 193 R. Doc. 20 6. 39

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.