Diab v. Ochsner Clinic Foundation

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MAJED DIAB 	CIVIL ACTION
VERSUS 	NO. 25-900
OCHSNER CLINIC FOUNDATION 	SECTION “H” (4)
ORDER AND REASONS
Before the Court is Defendant Ochsner Clinic Foundation’s Motion for
Partial Dismissal of First Amended Complaint (Doc. 8). For the following
reasons, Defendant’s Motion for Partial Dismissal of First Amended Complaint
is GRANTED.
BACKGROUND
Plaintiff Majed Diab brings this employment action against his former
employer, Defendant Ochsner Clinic Foundation, alleging violations of Title
VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991.
Plaintiff, who was employed as a respiratory therapist in the Ochsner Flight
Care Department, alleges that he was subjected to a pattern of retaliatory
conduct that culminated in his termination on November 17, 2023. Plaintiff
describes the events leading up to the instant suit as follows.
Plaintiff filed a formal complaint regarding scheduling practices in
December 	2022. 	Afterwards, 	on 	January 	12, 	2023, 	he 	received 	a 	verbal
warning for a minor safety issue. On February 17, 2023, Plaintiff reiterated
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his complaints to Flight Care Director Patrick Boullion (“Boullion”). On March
17, 	2023, 	Plaintiff 	was 	placed 	on 	probation 	for 	purported 	reporting 	and
training failures. Plaintiff asserts he and Boullion conducted several meetings
during his probation period, wherein he was assured there were no concerns
with his performance. Months later, on November 9, 2023 Plaintiff emailed
Boullion and again raised concerns over “additional coverage responsibilities
without 	corresponding 	pay.”1 	The 	next 	day, 	Plaintiff 	expressed 	concern
regarding the workplace culture and ongoing retaliation to management.
Then, on November 16, 2023 Plaintiff filed a formal complaint with the Human
Resources Department in which he alleged retaliation and sex discrimination.
Plaintiff was terminated the next day. On July 12, 2024, Plaintiff filed a
Charge 	of 	Discrimination 	with 	the 	Equal 	Employment 	Opportunity
Commission (“EEOC”), alleging discrimination. In February 2025, the EEOC
issued Plaintiff a Dismissal and Notice of Rights letter.
Shortly thereafter, Plaintiff filed the instant action. Plaintiff identifies
the following three adverse employment actions, which he argues demonstrate
retaliatory animus and entitle him to relief: (1) his January 12, 2023 verbal
warning; (2) his placement on probation beginning March 17, 2023; and (3) his
November 17, 2023 termination. Defendant now moves for partial dismissal of
Plaintiff’s claims to the extent they are based on adverse employment events
occurring before September 16, 2023.2
1 Doc. 7 at 5.
2 After Defendant filed its first Motion for Partial Dismissal of Plaintiff’s Complaint (Doc. 6),
Plaintiff timely amended. Doc. 7. In response, Defendant filed its Motion for Partial
Dismissal of First Amended Complaint (Doc. 8). Accordingly, the Court denied Defendant’s
first Motion for Partial Dismissal of Plaintiff’s Complaint (Doc. 6) as moot.
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LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim for relief that is plausible on its face.”3 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”4
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”5 The court need not, however,
accept as true legal conclusions couched as factual allegations.6 To be legally
sufficient, a complaint must establish more than a “sheer possibility” that the
plaintiff’s claims are true.7 “A pleading that offers ‘labels and conclusions’ or
‘a formulaic recitation of the elements of a cause of action’” will not suffice.8 If
it is apparent from the face of the complaint that an insurmountable bar to
relief exists and the plaintiff is not entitled to relief, the court must dismiss the
claim.9 The court’s review is limited to the complaint and any documents
attached to the motion to dismiss that are central to the claim and referenced
by the complaint.10
LAW AND ANALYSIS
Defendant seeks to dismiss any of Plaintiff’s claims that are based on
retaliatory conduct that occurred before September 16, 2023, arguing first that
3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
4 Id.
5 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
6 Iqbal, 556 U.S. at 678.
7 Id.
8 Id.
9 Lormand, 565 F.3d at 255–57.
10 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
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these claims are time-barred and second that Plaintiff has failed to plead facts
supporting the essential elements of those claims. Because the Court concludes
that Plaintiff’s claim is untimely to the extent it is based on alleged adverse
employment actions that occurred prior to September 16, 2023, the Court need
not reach Defendant’s second argument.
Defendant 	argues 	that 	Plaintiff’s 	claim 	for 	retaliation 	should 	be
dismissed to the extent Plaintiff’s claim relies on his January 12, 2023 verbal
warning and March 17, 2023 probation because Plaintiff did not timely file a
charge with the Equal Employment Opportunity Commission for these adverse
employment events. Plaintiff opposes, asking the Court to deny Defendant’s
Motion because the verbal warning and probation are not time-barred under
the continuing violation doctrine.11 Plaintiff also argues that, in any event, the
instant Motion should be denied because the factual allegations regarding the
January 12, 2023 verbal warning and March 17, 2023 probation are relevant
and 	demonstrate 	a 	pattern 	that 	speaks 	to 	retaliatory 	animus 	for 	his
termination.
“In a deferral state like Louisiana, Title VII plaintiffs must file an EEOC
charge no more than 300 days after the alleged discriminatory employment
action occurred” or they are untimely.12 Under Title VII, claims based on
“discrete discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges. Each discrete discriminatory
act starts a new clock for filing charges alleging that act.”13 Conversely, “[t]he
11 Plaintiff’s Opposition concedes that he would be unable to recover for independent claims
based on his verbal warning and probation if those actions were considered discrete acts,
stating that he “does not seek to assert stale claims in isolation.” Doc. 13 at 2.
12 Grant v. Adm’rs of Tulane Educ. Fund, No. 22-66, 2024 WL 4216041, at *4 (E.D. La. Sept.
17, 2024).
13 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
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continuing 	violation 	doctrine 	is 	a 	doctrine 	of 	equity 	that 	‘extends 	the
limitations period on otherwise time barred claims only when the unlawful
employment practice manifests itself over time, rather than as a series of
discrete acts.’”14 “The ‘unlawful employment practice’ therefore cannot be said
to occur on any particular day.”15 However, “[m]ere continuity of employment,
without more, is insufficient to prolong the life of a cause of action” under the
continuing violation doctrine.16
In the retaliation context, “[d]iscrete acts such as termination, failure to
promote, denial of transfer, or refusal to hire are easy to identify.”17 Here,
Plaintiff alleges that, prior to September 16, 2023, Defendant gave him a
verbal warning for a minor safety issue and placed him on probation for
reporting and training failures.18 Despite Plaintiff’s contention that these
events are part of a “continuing course of unlawful conduct,” a verbal warning
and placement on probation are both discrete acts.19 Plaintiff does not allege
that either of these events “continued until, or occurred at the time of, the
actual termination of his employment,” nor could he, because both events
occurred on a particular day and could have been independently actionable if
timely raised.20 Although Plaintiff alleges the pre-September 16, 2023 events
14 Grant 2024 WL 4216041, at *5 (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th
Cir. 2004)).
15 Morgan, 536 U.S. at 115.
16 Id. at 112–13 (quoting Delaware State Coll. v. Ricks, 449 U.S. 250, 257 (1980)).
17 Id. at 114.
18 September 16, 2023 is 300 days before Plaintiff filed his July 12, 2024 charge with the
EEOC.
19 See Morgan, 536 U.S. at 114–15 (holding that where the plaintiff “contends that he was
wrongfully suspended and charged with a violation of Amtrak's ‘Rule L’ for insubordination
. . . , denied training, and falsely accused of threatening a manager” the adverse employment
events were discrete acts and thus were time-barred).
20 Doc. 7 at 4; Morgan, 536 U.S. at 113 (quoting Ricks, 449 U.S. at 257 (declining to apply the
continuing violation doctrine based on the employee’s argument that the 300-day period did
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were 	caused 	by 	the 	same 	retaliatory 	animus 	that 	culminated 	in 	his
termination, Plaintiff’s retaliatory termination claim is also based on a discrete
act; alleging the three events in tandem cannot revive the earlier two.21
Further, 	while 	some 	circuits 	extend 	the 	continuing 	violation 	doctrine 	to
retaliatory 	actions 	where 	Plaintiffs 	allege 	a 	hostile 	work 	environment,
Plaintiff’s Complaint does not set forth a hostile work environment claim based
on retaliation.22 Thus, both pre-September 16, 2023 adverse employment
events are discrete acts, and Plaintiff’s continuing violation argument fails.
Accordingly, claims based on Plaintiff’s January 12, 2023 verbal warning and
March 17, 2023 probation are time-barred and must be dismissed.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Defendant’s Motion for Partial Dismissal of First
Amended Complaint (Doc. 8) is GRANTED. To the extent that Plaintiff’s
claims are based on alleged retaliatory conduct occurring before September 16,
2023, Plaintiff’s claims are DISMISSED WITH PREJUDICE.
not begin until his actual termination because employment events occurring prior to the
plaintiff’s termination were discrete)).
21 The Court notes—and the parties agree—that the factual allegations regarding the time
barred claims are relevant and could be evidence of Defendant’s retaliatory animus towards
Plaintiff. Morgan, 536 U.S. at 113. To be clear, the Court’s dismissal of claims based on pre-
September 16, 2023 conduct does not preclude Plaintiff from engaging in discovery or
introducing evidence that is relevant to the retaliation claim based on Defendant’s
termination. 	The 	dismissal 	merely 	bars 	plaintiff 	from 	recovering 	damages 	for
pre-September 16, 2023 events because they are not actionable as discrete acts or under a
continuing violation theory.
22 See Heath v. Bd. of Supervisors for S. Univ. and Agric. and Mech. Coll., 850 F.3d 731, 741
n.5 (5th Cir. 2017). Even assuming Plaintiff did allege a hostile work environment based on
Defendant’s alleged retaliatory conduct, the Fifth Circuit has not recognized a cause of
action for retaliatory hostile work environments. Id.
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New Orleans, Louisiana this 4th day of February, 2026.
_________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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