ORDER AND REASONS

HELEN BERRIGAN, Chief Judge, District

Before the Court is the Defendants Angelo and Roth's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and because Plaintiff seeks monetary relief against Defendants who are immune from such relief. For the following reasons, the motion is DENIED.

I. FACTUAL HISTORY AND PROCEDURAL BACKGROUND

Plaintiff, Jo Jo Holden (hereinafter referred to as "Plaintiff"), a civil servant, was employed by Defendant, the State of Louisiana through the Department of Transportation and Development (hereinafter referred to as "DOTD"), since December 11, 1978. On October 16, 2001, a workplace altercation occurred between Holden and another DOTD employee, Defendant, David Knight. Subsequent to an internal investigation, DOTD personnel gave Plaintiff the choice of resigning or being fired for violation of a zero tolerance policy concerning workplace altercations. Plaintiff resigned and his employment with DOTD was terminated, effective November 8, 2001.

On October 16, 2002, Holden brought suit against Defendant Knight, DOTD, Robert P. Roth ("Roth") and Gary Angelo ("Angelo") in the twenty-first judicial district court, Parish of Tangipahoa, State of Louisiana. (Rec. doc. 10, exhibit 1). On April 23, 2003, Judge Douglas Hughes dismissed Plaintiff's state suit for lack of subject matter jurisdiction. He signed a judgment to that effect on June 2, 2003. Plaintiff filed this suit, which is almost identical to his state court suit, on August 19, 2003, alleging violations of 42 U.S.C. §§ 1981 and 1983, La.R.S. 23:332, and state law claims of vicarious liability and battery. At issue in this motion are the remaining claims against Roth and Angelo. The Court has dismissed claims against Roth and Angelo in their official capacity for damages. (Rec. doc. 43). Claims against Roth and Angelo in their official capacity for injunctive and prospective relief remain. Plaintiff was permitted to amend his complaint on July 6, 2004 to add 42 U.S.C. §§ 1981 and 1983 claims against Roth and Angelo in their individual capacity. (Rec. doc. 67). Roth and Angelo argue that Plaintiff (1) has failed to state a claim under § 1981 and § 1983 or, in the alternative, they are protected by qualified immunity, (2) that Plaintiff has failed to state a claim under La.R.S. 23.332A, (3) Plaintiff has failed to state a claim for constructive discharge, and (4), that Plaintiff's claim for injunctive relief should be dismissed as frivolous.

II. STANDARD OF REVIEW

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a district court must accept the factual allegations of the complaint as true and resolve all ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). Unless it appears "beyond a doubt that the plaintiff can prove no set of facts in support of his claim," the complaint should not be dismissed for failure to state a claim. Id. at 284-285 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed.2d 80 (1957)). However, conclusory allegations or legal conclusions masquerading as factual conclusions will not defeat a motion to dismiss. See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (citing Fernandez-Montes, 987 F.2d at 284).

III. SECTION 1981 CLAIMS

To succeed on a 42 U.S.C. § 1981 claim, a plaintiff must establish "(1) that (he) is a member of a racial minority; (2) that [the defendant] had intent to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute." Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003) (quoting Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001). Those activities include the right "to make and enforce contracts." 42 U.S.C. § 1981(a). Roth and Angelo assert that Plaintiff's complaint and the amendment to the complaint are "completely devoid of any allegations that the defendants had intent to discriminate on the basis of race." (Rec. doc. 71, pp 8-9).

The Court rejects Roth and Angelo's unsupported assertion. The facts alleged in the complaint clearly state that Plaintiff is an African American and that Roth and Angelo discriminated against Plaintiff based on his race. For instance, Plaintiff alleges in his complaint that, upon learning of Plaintiff's altercation with Knight, "Angelo and Roth wanted to get rid of the plaintiff, a black employee, under circumstances in which the black employee would have no recourse to complain about the termination." (Rec. doc. 1, ¶ 46). Rather than follow the proper termination procedures (Id. at ¶ 50, 51), Roth and Angelo formed an "illegal scheme" (Id. at ¶ 50), Plaintiff alleges, to give Plaintiff the choice of either resigning or being fired. This plan would "promote their own racially discriminatory motives." (Id. at ¶ 53).

With respect to the third prong of the § 1981 claim, Roth and Angelo argue that "the complaint and its amendment are further devoid of any allegation that the alleged discrimination concerned one or more of the activities enumerated in the statute, i.e., to make and enforce contracts, to sue, be parties, give evidence, etc." (Rec. doc. 71, pp 8-9). Congress amended § 1981 in 1991 to add a broad definition of the phrase "make and enforce contracts," which includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). The Fifth Circuit Court of Appeals has held that at-will employment contracts are included in this definition for the purposes of § 1981 claims. Fadeyi v. Planned Parenthood, 160 F.3d 1049, 1050 (5th Cir. Tex. 1998) ("Irrespective of being subject to at-will termination, such an employee stands in a contractual relationship with his employer and thus may maintain a cause of action under § 1981"). The Court finds that the aforementioned factual allegations from the complaint sufficiently allege that Roth and Angelo discriminated against Plaintiff with respect to the performance and termination of Plaintiff's at-will contractual relationship with DOTD. Accordingly, Plaintiff has stated a claim under § 1981. Before addressing whether Roth and Angelo are entitled to qualified immunity, the Court will consider the motion to dismiss the § 1983 claim for failure to state a claim.

IV. SECTION 1983 CLAIMS

To state a claim under 42 U.S.C. § 1983, plaintiffs "must enunciate a set of facts that illustrate the defendants' participation in the wrong alleged." Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986). The plaintiff must allege that the defendants had either a personal involvement or a causal connection to the violation of a constitutional right. See Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) ("In order to state a cause of action under section 1983, the plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged.") (citations omitted). Defendants Roth and Angelo argue that Plaintiff has not alleged facts supporting a sufficient causal connection or personal involvement.

In his complaint, Plaintiff alleges that the DOTD had enacted regulations for a pre-deprivation procedure for deciding matters of disciplinary actions and terminations. (Rec. doc. 1, ¶¶ 29, 43). Apparently, these procedures were allegedly installed to address previous instances of race discrimination within the DOTD. (Id. at ¶ 27, 29). Plaintiff alleges that Roth and Angelo themselves "learned" that Plaintiff was involved in an unprovoked incident, "decided" to terminate him without following the racially neutral DOTD procedure in which they were trained, "wanted" to get rid of Plaintiff because he was black, "carried" out their plan, and "persisted in their illegal scheme" by accepting a letter of resignation even though it alleged racial discrimination, when the pre-deprevation procedures would have dictated a different course of action. (Id. ¶¶ 39, 41, 46, 47, 50). The Court finds that these allegations provide an explicit causal connection between Roth and Angelo and the alleged constitutional violation. Accordingly, Plaintiff has sufficiently stated his § 1983 claim. The issue now becomes whether Defendants are entitled to qualified immunity.

V. QUALIFIED IMMUNITY

Roth and Angelo also assert that they are entitled to qualified immunity from both the §§ 1981 and 1983 claims. Therefore, the Plaintiff is subject to a heightened pleading requirement. "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). The bifurcated test to determine whether a defendant is entitled to qualified immunity is: (1) whether the plaintiff has alleged a violation of a clearly established constitutional right; and (2) if so, whether the defendants's conduct was objectively reasonable in the light of clearly established law at the time of the incident. See Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).

With respect to the first prong of the qualified immunity test, Plaintiff clearly alleges in his complaint that his termination was a violation of his established constitutional right to procedural due process. In order to advance a due process claim in connection with a termination of employment, a plaintiff must point to some state or local law, contract or understanding that creates a property interest in continued employment. See Cabrol v. Town of Youngsville, 106 F.3d 101, 105 (5th Cir. 1997). Louisiana law provides for a right of continued employment if there is a legislative or regulatory restraint on a public entity's termination authority. Id., See also La.Civ. Code art. 2747. Plaintiff alleges that the Compliance Section of the DOTD, evidently created in response to previous allegations of race discrimination, has instituted procedures designed to prevent discriminatory firings and ensure race-neutral management functions. (Rec. doc. 1, ¶¶ 26-29, 43, 51-58). The record indicates that the existence of this restraint on the DOTD's termination authority is the basis of Plaintiff's alleged property interest in his job. Plaintiff was effectively terminated from his job, he alleges, when he was given an ultimatum to resign or be fired. Furthermore, he was not permitted recourse to the required pre-deprivation procedures. (Id. at ¶¶ 45-51). Consequently, Plaintiff alleges, his right to due process was violated.

Roth and Angelo assert that there is no right to due process for an employee who voluntarily resigns. They cite Bury v. McIntosh for support, a case in which a government employee was given the option of 1) resigning or 2) being terminated pursuant to the rules and procedures of the City's Civil Service Board, which included the opportunity or a hearing. Bury v. McIntosh, 540 F.2d 835, 835 (5th Cir. 1976). The Fifth Circuit Court of Appeals found that the employee had neither reason to believe nor actual belief that the government employer could follow through on its threat by controlling the Civil Service Board grievance procedure. Therefore, the Fifth Circuit found this option not to be coercive. Id at 836. The present case is easily distinguishable. Plaintiff Holden wanted, but was not given, the opportunity to avail himself of the DOTD pre-deprivation procedures to which he alleges he was entitled. Rather, he had the option of either resigning or simply being fired. The Court finds that Plaintiff's resignation was not voluntary within the meaning of Bury and he has not forfeited his ability to allege a due process violation. Accordingly, the first prong of the qualified immunity test favors the Plaintiff.

With respect to the second prong, Roth and Angelo assert that their conduct was reasonable under the circumstances when they gave Plaintiff the option of resigning or being fired. They claim to have been acting in a response to a zero-tolerance policy for fighting in the workplace. Construing the record in a light most favorable to the Plaintiff, the Court finds that the record at least gives rise to a genuine issue of material fact regarding whether the Defendants's acted reasonably in denying Plaintiff his right to a pre-deprivation procedure. Therefore, Defendants Roth and Angelo are not entitled to qualified immunity from Plaintiff's § 1981 or § 1983 claims.

VI. La.R.S. 332A

Plaintiff has also brought a claim against Roth and Angelo under the Louisiana anti-discrimination statute. It provides in pertinent part:

It shall be unlawful discrimination in employment for an employer to engage in any of the following:

(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin.

(2) Intentionally limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee, because of the individual's race.

La.R.S. 23:332(A) (1) — (2). And:

It shall be unlawful discrimination in employment for an employment agency to intentionally fail or refuse to refer for employment, or otherwise to intentionally discriminate against, any individual because of his race. (emphasis added).

332(B). Roth and Angelo argue that Plaintiff cannot meet, and has failed to even allege, a particular element of the test for establishing a prima facie case of racial discrimination. (Rec. doc. 71, p. 17). Specifically, they argue that Plaintiff has not alleged and cannot establish the requirement that others similarly situated were more favorably treated. Id. The Court finds that the analysis of prima facie tests and burden shifting frameworks is a matter properly left for a motion for summary judgment. Before the Court is not a motion for summary judgment, but rather a motion to dismiss pursuant to Rule 12(b)(6), and the Court finds that Plaintiff has clearly alleged in his complaint that his employer has discriminated against him on the basis of his race. Accordingly, Plaintiff has stated a claim under La.R.S. 23:332.

VI. Constructive Discharge

Roth and Angelo claim in their motion to dismiss that Plaintiff has failed to "state a claim upon which relief can be granted as to the plaintiff's claims of constructive discharge." (Rec. doc. 71, p. 18). While Plaintiff states in his complaint that "LADOTD constructively discharged plaintiff" (Rec. doc. 1, ¶ 23), "constructive discharge" is not actually a cause of action in the complaint or the amendment to the complaint. Accordingly, Roth and Angelo's motion to dismiss this nonexistent claim is moot.

VII. Injunctive Relief

Roth and Angelo seek to dismiss Plaintiff's request for injunctive relief arising out of his claims of discrimination. "Those claims, should they be dismissed (sic) cannot form the basis for injunctive relief. Any such claim for injunctive relief should be dismissed as frivolous." (Rec. doc. 71, p. 19). Because the Court has not dismissed any of Plaintiff's discrimination claims under Rule 12(b)(6), the claim for injunctive relief against Roth and Angelo in their official capacity remains.

VIII. Conclusion

Plaintiff has sufficiently stated §§ 1981 and 1983 claims as well as a La.R.S. 23:332 claim against Defendants Roth and Angelo. Accordingly, IT IS ORDERED that defendants's 12(b)(6) motion for failure to dismiss is DENIED.