EDITH H. JONES, Circuit Judge:
Plaintiff-Appellant Bonnie ODaniel (ODaniel) sued her former employers Defendants-Appellees Industrial Service Solutions (ISS), Plant-N-Power Services (PNP), Tex Simoneaux, Jr. (Simoneaux), and Cindy Huber (Huber) for firing her allegedly because of the Plaintiffs sexual orientation [heterosexual] and Ms. Hubers reaction to the Plaintiffs pr[o]-heterosexual speech. The magistrate judge, acting by consent, dismissed her complaint pursuant to Fed. R. Civ. Pro.12(b)(6) for failure to state cognizable claims of Title VII retaliation and Louisiana law violations. Finding no reversible error, we AFFIRM.
I. BACKGROUND
ODaniels complaint centers on her employers response to a Facebook post she made that ultimately led to her dismissal. We recite the facts as pled in ODaniels complaint.
ODaniel began working in the Louisiana office of PNP in 2013 as the manager of PNPs human resources department. Simoneaux and Huber were part owners of PNP, and when PNP combined with ISS, Huber became President and Simoneaux became Vice President of Eastern Operations. During her time with PNP, an employment agency, ODaniel alleges she developed a fantastic relationship with all three owners, although she never personally met Huber, who worked in the Texas office.
On April 22, 2016, ODaniel made the incendiary Facebook post. While ODaniel refers to the post simply as that of a man at Target wearing a dress and not[ing] his ability to use the womens bathroom and/or dressing room with Mrs. ODaniels young daughters, the text of ODaniels post is as follows: So meet, ROBERTa! Shopping in the womens department for a swimsuit at the BR Target. For all of you people that say you dont care what bathroom its using, youre full of shit!! Let this try to walk in the womens bathroom while my daughters are in there!! #hellwillfreezeoverfirst. The post tagged ODaniels husband and included photos of the individual referred to in the post.
After ODaniel made the post, it was shared with Simoneaux and Huber. Simoneaux informed ODaniel that Huber wanted her fired immediately and she had personally taken offense to the post because Huber was a member of the LGBT community. The next day, Simoneaux informed ODaniel that Huber wanted to know for whom her husband worked, as Huber felt a responsibility to report the Facebook post to his employer. Simoneaux also told ODaniel that Huber had taken the Facebook post personally and felt the post wronged all members of the LGBT community, including herself. On or about April 24, 2016, Huber texted ODaniel and told her to be available for a phone conference the following day. ODaniel sent a text message to Simoneaux saying she felt she was being discriminated against because she was heterosexual.
ODaniel participated in the conference call with Huber and ISS corporate counsel and was informed she must take a sensitivity/diversity training course and could no longer recruit through social media. She also received a letter of reprimand in response to her post, which stated that ODaniel had had previous discussions regarding her job performance and areas for improvement. ODaniel denies she had ever signed a single complaint against her before the letter of reprimand, and Huber had never before brought up issues with ODaniels work performance. In fact, before the Facebook post, ODaniel had a great relationship with Huber, as the two regularly exchanged jokes and pictures by text. Huber had even sponsored ODaniels daughters softball team through PNP for two years. After the post, Huber refused to engage with ODaniel on a personal level.
Several days after her post, ODaniel was placed under the direct supervision of Huber, who allegedly conspired with Simoneaux to create a hostile work environment in the hope that ODaniel would quit or be fired. ODaniel was given three dates in May on which she could take the sensitivity training, and for various reasons, she was unable to complete the training on those dates. On May 24, 2016, ODaniel sent a text to Simoneaux that Hubers actions had reached a harassing level. Huber was irate that ODaniel had not attended any of the three trainings, wanted her fired immediately, and suggested to Simoneaux that he and ODaniel were having an affair because Simoneaux was fighting to keep her job. At the end of May, Huber sent new rules that only applied to ODaniel, including modifying her schedule to conflict with her childrens schedules and putting her on a time clock. ODaniel confronted Simoneaux that she had finally reached breaking point and that she would be filing a formal complaint. Simoneaux told ODaniel not to file a complaint and that he would inform Human Resources of the situation. However, he never notified Human Resources about Hubers alleged discrimination and no investigations of the harassment or discrimination took place.
Over the next couple of weeks, ODaniel received an email reprimand from Simoneaux stating wrongly that she was not doing her job properly. She also received hints that PNPs Louisiana office may need to downsize and make cuts to personnel. Around June 8, ODaniel told the Defendants in writing that she was being subjected to discrimination and harassment and she planned on filing a formal complaint. About a week later, Simoneaux told ODaniel that the next week would be her last at PNP. When, on June 21, Huber found out that ODaniel was still employed with PNP, she informed Simoneaux that she was shutting down ODaniels email at noon. ODaniels separation notice stated she was fired due to unsatisfactory job performance. However, when ODaniel filed for unemployment benefits and challenged their denial due to employee misconduct, PNP did not participate in the scheduled hearing and Louisiana workforce eventually ruled in favor of ODaniel. ODaniel filed a complaint with the Equal Employment Opportunity Commission (EEOC) on December 20, 2016, and received her right to sue letter shortly afterward.
ODaniel alleges Huber is no longer with PNP after being investigated for dishonesty involving financial records. She also alleges that the current human resources manager at PNP made several Facebook posts that included profanity, including one towards a PNP employee who subsequently quit. But the manager never received a reprimand. ODaniel does not mention the sexual orientation of the new human resources manager.
ODaniel filed her initial complaint pro se , alleging violations of multiple anti-discrimination laws, wrongful termination, and intentional infliction of severe emotion distress. A first amended complaint then updated her causes of action to reflect discrimination claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq ., and various Louisiana statutes. After ODaniel filed her first amended complaint, Defendants moved to dismiss. Before her response to the motion to dismiss was due, ODaniel obtained counsel who moved to amend her complaint and responded to Defendants motion. The parties briefed the issues and the district court analyzed and resolved both motions together, granting Appellants motion to dismiss and denying ODaniels motion for leave to amend. ODaniel appeals the district courts resolution of both motions.
II. STANDARD OF REVIEW
This court reviews a district courts decision to dismiss under Rule 12(b)(6)de novo . Vaughan v. Anderson Regl Med. Ctr. , 849 F.3d 588, 590 (5th Cir.), cert. denied , --- U.S. ----, 138 S.Ct. 101, 199 L.Ed.2d 29 (2017). We accept all well-pleaded facts in the complaint as true and view the facts in the light most favorable to the plaintiff. Id .However, those facts, taken as true, [must] state a claim that is plausible on its face. Bowlby v. City of Aberdeen, Miss. , 681 F.3d 215, 219 (5th Cir. 2012) (quoting Amacker v. Renaissance Asset Mgmt. LLC , 657 F.3d 252, 254 (5th Cir. 2011) ). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) ).
III. DISCUSSION
At issue in this appeal are the plaintiffs claims for Title VII retaliation and Louisiana constitutional violations. We discuss each in turn. Although the plaintiffs allegations and briefing are somewhat ambiguous, she does not brief adequately that she was dismissed because of her sexual orientation, and any such claim is waived. See Mullins v. TestAmerica, Inc ., 564 F.3d 386, 407 n.9, 417 (5th Cir. 2009).
A. Title VII Retaliation Claim
ODaniel argues the district court erred in dismissing her claim for retaliation under Title VII for several reasons. First, she contends the district court erred in finding that Title VII does not protect against discrimination on the basis of sexual orientation. Second, even if Title VII does not prohibit sexual orientation discrimination, the district court erred in finding that she could not have reasonably believed discrimination on the basis of sexual orientation was a prohibited practice. Third, ODaniel takes issue with the district courts determination that, even if sexual orientation is a protected class and/or ODaniel reasonably believed it to be so, she failed to state a claim for retaliation under Title VII. Because her first two arguments fail as a matter of law, we need not reach the third contention.
The EEOC submitted an amicus curiae brief, as did the American Civil Liberties Union Foundation and several other organizations, asserting that Title VII ought to encompass sexual orientation as a protected class. Amici further urge that whether or not Fifth Circuit precedent recognizes a claim for discrimination on the basis of sexual orientation under Title VII, in the spring of 2016 when ODaniel stated she would file an EEOC complaint, ODaniel could have reasonably believed sexual orientation discrimination was prohibited by Title VII.
ODaniel claims in essence that she was retaliated against because she opposed discrimination perpetrated against her on the basis of her heterosexual orientation. The propositions she and the amici advocate would require us to press beyond limits firmly established in the statute and our case law. Therefore, regardless of the evolution in other courts decisions or the parties preferred policy positions, we affirm the magistrate judges straightforward approach.
Title VII outlaws employment discrimination based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Sex discrimination has been held to encompass discrimination based on sexual harassment or sexual stereotyping. See, e.g. , Harris v. Forklift Sys., Inc ., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ; Price Waterhouse v. Hopkins , 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) ; EEOC v. Boh Bros. Const. Co ., 731 F.3d 444 (5th Cir. 2013) (en banc). But Title VII in plain terms does not cover sexual orientation. Brandon v. Sage Corp. , 808 F.3d 266, 270 n.2 (5th Cir. 2015) ; see also Wittmer v. Phillips 66 Co ., 915 F.3d 328, 330 (5th Cir. 2019) ; Blum v. Gulf Oil Corp. , 597 F.2d 936, 938 (5th Cir. 1979) (per curiam) (Discharge for homosexuality is not prohibited by Title VII ....). Other circuits have recognized the Fifth Circuits unequivocal stance barring Title VII coverage of sexual orientation as a protected class. See, e.g. , Evans v. Georgia Regl Hosp. , 850 F.3d 1248, 1255-57 (11th Cir. 2017) (citing decisions). Declining to consider the statute to cover a category of people not squarely identified by Congress in 1964 or even linguistically encompassed today by the applicable language, see Judge Hos concurrence in Wittmer , 915 F.3d at 333-41, is thus a matter of precedent, otherwise known as our rule of orderliness. Because the law in this circuit is clear, we cannot accept ODaniels or the amicis suggestions that this panel either overrule the precedents or assume arguendo that the trend has upended them.
Title VII prohibits an employer from retaliating against an employee who engages in protected activity by oppos[ing] any practice made an unlawful employment practice by this subchapter .... 42 U.S.C. § 2000e-3(a) (the opposition clause, EEOC v. Rite Way Serv., Inc, 819 F.3d 235, 239 (5th Cir. 2016) ). The threshold criterion for relief under this provision is a showing that the plaintiff participated in an activity protected under the statute. Feist v. La. , 730 F.3d 450, 454 (5th Cir. 2013) ; see also Fifth Circuit Pattern Jury Instruction 11.5 (Civil Cases). As this court has explained, the relevant question ... is not whether a formal accusation of discrimination is made but whether the employees communications to the employer sufficiently convey the employees reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner. Yount v. S & A Restaurant Corp. , 226 F.3d 641 (Table), 2000 WL 1029010, at *3 (5th Cir. 2000) (per curiam) (internal quotation marks, citation, and emphases omitted). There is no dispute here that ODaniel advised Huber and Simoneaux on several occasions of her intent to file some kind of discrimination complaint against PNP for the treatment meted out on her. But her allegations of protected conduct had to be reasonable, that is, undergirded by charges that were, or reasonably appeared to be violative of Title VII. In the face of our unbroken and unequivocal precedents, it is not reasonable in the Fifth Circuit to infer that Title VII embraces an entirely new category of persons protected for their sexual orientation.
This court has generously interpreted the scope of the opposition basis for retaliation. See, e.g. , EEOC v. Rite Way Serv., Inc. , 819 F.3d 235 (5th Cir. 2016). In Rite Way , for instance, the court determined that a plaintiff might have been disciplined for her opposition to workplace sexual harassment of another female employee by a male supervisor. In so doing, we recognized that as to claims of sexual harassment, there is a gray area between actual violation and perceived violation in which a reasonable but mistaken belief may be held. Id. at 242. The court went on to explain that the nature of the comments, conduct, context and extrinsic features at the workplace all play a role in assessing actionable sexual harassment. Id. at 243-44.
Here, however, the question is not the potential scope of sex harassment prohibited by Title VII for over thirty years, it is the exclusion altogether of sexual orientation from the term sex in the statute. ODaniels and the amicis arguments claim it is reasonable to assume that the law is not what it is. In fact, as PNP acutely observes, they claim it is reasonable for ODaniel to be knowledgeable about the uncertain state of federal law throughout the circuit courts about the coverage of sexual orientation in Title VII, but ignorant about what this court has held. Those positions are untenable. A court could not award damages for Title VII retaliation on a plaintiffs claim that he reasonably opposed nepotism, unfair though the nepotism might be, if the nepotism had nothing to do with the statutorily protected classes. EEOC elsewhere admitted this condition of a retaliation claim:
[T]he EEOC recognizes that the opposed conduct must have something to do with Title VII in order to support a retaliation claim. We do not understand it to be arguing, for example, that an employee who believes she was fired for making statements about accounting fraud in response to an internal investigation would be able to bring a Title VII retaliation case.
Rite Way , 819 F.3d at 242. The scope of this provision, in sum, is dictated by the scope of Title VIIs prohibitions, not by freestanding conceptions of retaliation or opposition. Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits. Miller v. Am. Family Mut. Ins. Co. , 203 F.3d 997, 1007 (7th Cir. 2000). ODaniels retaliation claim fails as a matter of law.
B. Freedom of Expression Claim under Louisiana Constitution Article 1, Section 7
The district court dismissed ODaniels freedom of expression claim on the ground that none of the Defendants were state actors and therefore they were not covered by the restrictions of Article 1, § 7 of the Louisiana constitution. Article 1, § 7 states:
No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.
La. Const. Ann. Art. I, § 7. The Louisiana Supreme Court has said that the state constitutions guarantee of freedom of expression was designed to serve the same purpose and provides at least coextensive protection as the First Amendment. State v. Franzone , 384 So.2d 409, 411 (La. 1980). The most basic of those [First Amendment] principles is this: [A]s a general matter, ... government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Brown v. Entmt Merchants Assn, 564 U.S. 786, 790-91, 131 S.Ct. 2729, 2733, 180 L.Ed.2d 708 (2011) (quoting Ashcroft v. American Civil Liberties Union , 535 U.S. 564, 573, 122 S.Ct. 1700, 1707, 152 L.Ed.2d 771 (2002) ) (emphasis added).
ODaniel attempts to side-step this limitation by arguing that it is unsettled law whether Article 1, § 7 covers conduct by private individuals or entities. She cites one Louisiana court of appeals case that could possibly be construed to support her assertion: Wusthoff v. Ballys Casino Lakeshore Resort, Inc. , 709 So.2d 913 (La. App. 4 Cir. 1998). In Wusthoff , the court stated in dicta, An employee cannot be terminated because of race, sex, or religious beliefs or because he/she exercised constitutionally protected rights such as free speech. Id . at 914. She suggests that this language, combined with several cases stating that Article 1, § 7may provide broader protection than the First Amendment in certain instances (none of which are relevant to this case), somehow implies that a private employer might be liable for actions taken based on an employees speech. ODaniels argument is unpersuasive.
A more recent Louisiana Supreme Court case, as well as the language of Article 1, § 7 itself, clearly controvert ODaniels argument. In Quebedeaux , the Louisiana Supreme Court held that an employer is generally at liberty to dismiss an employee at any time for any reason, and [a]side from the federal and state statutory exceptions, there are no broad policy considerations creating exceptions to employment at will and affecting relations between employer and employee. Quebedeaux v. Dow Chem. Co. , 820 So.2d 542, 545-46 (La. 2002) (internal quotation marks and citations omitted). This language does not expand the reach of Article 1, § 7 to private entities, and instead focuses on the limited statutory exceptions to Louisianas at-will employment framework. While the Louisiana constitution may extend broader protections for speech than the First Amendment, it does so only as to state actors. ODaniels complaint failed to state a claim for a violation of freedom of expression under Article 1, § 7 of the Louisiana constitution. The court correctly dismissed this claim and committed no error in refusing to permit amendment on the basis of futility.
CONCLUSION
For the above-stated reasons, the judgment of dismissal is AFFIRMED .
HAYNES, Circuit Judge, concurring in part and concurring in the judgment:
I join Section III.B of the majority opinion, which addresses ODaniels claim under the Louisiana Constitution, in full. I also concur with the judgment of the majority opinion, which affirms the district courts dismissal of ODaniels complaint under FED. R. CIV. P. 12(b)(6) for failure to state a cognizable claim under Title VII. However, I would not reach the issues that the majority opinion addresses in Section III.A. Instead, I would dismiss ODaniels complaint because even if all the factual allegations in her complaint are accepted as true, there is no reasonable inference that she was fired for any reason other than her Facebook post. See Ashcroft v. Iqbal , 556 U.S. 662, 686, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
ODaniels complaint sets out a set of facts that demonstrate that her post ultimately led to her dismissal, a point she admits. It also states the Facebook post may have been in poor taste and politically incorrect. The complaint further admits that she was friends with Huber until Huber learned of the post. Other than her repeated statements that she was discriminated against because of her sexual orientation as a heterosexual, she points to zero facts supporting a conclusion that such was the case. See Grimes v. Tex. Dept. of Mental Health and Mental Retardation , 102 F.3d 137, 140 (5th Cir. 1996) (citing Grizzle v. Travelers Health Network, Inc. , 14 F.3d 261, 268 (5th Cir. 1994) ) (holding that an employees subjective belief that discrimination occurred, by itself, is insufficient to support a jury verdict in plaintiffs favor). Thus, she has no facts to support a claim of such discrimination, even if it were protected, and, in turn, no reasonable basis or belief to claim retaliation. Cf. Payne v. McLemores Wholesale & Retail Stores , 654 F.2d 1130, 1140 (5th Cir. 1981).
The question is not whether people are entitled to disagree (rudely or politely) about sensitive issues. The question is whether ODaniel has stated a claim under Title VII. Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity. I would stop there.
ODaniels proposed second amended complaint instead states that her post expressed the Plaintiffs views on an ongoing public debate, specifically her discontent with the possibility of this individual being permitted to use a womens bathroom and/or dressing room at the same time as Plaintiffs young daughters.
A copy of her Facebook post was not attached to any of her complaints; however, Appellants attached a copy to their motion to dismiss. ODaniel did not, and does not, object.
ODaniel removed the reference to Hubers sexual orientation from her proposed second amended complaint. She also added information that the post was copied and shared by Facebook users, that ODaniel apologized and explained to Huber that the post was not intended as an attack against the LGBT community generally, and that Huber still wanted to fire ODaniel immediately.
ODaniels proposed second amended complaint alleges these extra limitations on recruitment were unrealistic.
ODaniels proposed second amended complaint added that she had not been informed of any perceived problems with her job performance prior to receiving the letter.
In her proposed second amended complaint, ODaniel alleged instead that Hubers actions had risen to the level of sex-based harassment.
In her proposed second amended complaint, ODaniel clarified that her formal complaint would include allegations that Huber discriminated against her on the basis of her sex, as a married, heterosexual female.
ODaniels proposed second amended complaint removes reference to all the instances of the new human resources directors Facebook posts except the one directed at the PNP employee.
See Baldwin v. Foxx, EEOC App. No. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015) (EEOC administratively declaring that Title VII prohibits sex discrimination based on sexual orientation.
ODaniel also challenges the district courts denial of her motion for leave to amend her complaint. She claims that because her first two complaints were filed pro se , she should have been given the benefit of filing a complaint drafted by competent legal counsel. While the district court denied leave to amend, it explicitly considered ODaniels proposed second amended complaint in declaring the amendment would be futile. As a result, ODaniel did in fact receive the benefit of a counseled complaint-the district court simply found that the counseled complaint also failed to state a claim upon which relief could be granted. We apply the same standard to the motion to amend as in reviewing the district courts decision on a motion to dismiss. See Whitley v. Hanna , 726 F.3d 631, 638 (5th Cir. 2013) (applying de novo standard identical in practice to standard used for reviewing motion to dismiss for failure to state a claim). And footnotes to this opinion indicate the minor changes effected by the proposed amendment. For the same reasons stated above, the district court properly denied ODaniel leave to amend.
See also Stewart v. BrownGreer, P.L.C. , 655 F. Appx. 1029, 1031 n.3 (5th Cir. 2016) (per curiam), which despite its being a nonprecedential, unpublished opinion is cited here to reflect the consistency of our decisions.
That she pursued an EEOC complaint after being fired is irrelevant to a claim of retaliation while still employed by PNP.
This reasonable-belief interpretation has not been free from criticism. This court has recognized that its approach is in tension with the plain text of the statute, which appears to require that the employers practice actually be unlawful under Title VII. Royal v. CCC & R Tres Arboles, L.L.C. , 736 F.3d 396, 401 n.2 (5th Cir. 2013). If this court were to reconsider en banc its longstanding interpretation of sex, it should also reconsider the reasonable-belief approach to retaliation.
See generally, Mashburn v. Collin , 355 So.2d 879, 891-92 (La. 1977) (discussing free speech and freedom of the press in the defamation context); Guidry v. Roberts , 335 So.2d 438, 448 (La. 1976) (discussing protections against governmental power in the campaign finance context); Jaubert v. Crowley Post-Signal, Inc. , 375 So.2d 1386, 1389-90 (La. 1979) (discussing individuals right to privacy under Article 1, § 5 of the Louisiana constitution as weighed against the freedom of the press); Ieyoub v. Ben Bagert for Atty. Gen. Committee, Inc. , 590 So.2d 572, 573 (La. 1991) (Dennis, J., concurring) (stating the Louisiana constitution affords an even more complete safeguard against such a prior restraint of protected speech in a political campaign ) (emphasis added).
The law review note cited by ODaniel also does not strengthen her argument, and even undermines it to some extent. See Mindy L. McNew, Moresi: Protecting Individual Rights Through the Louisiana Constitution , 53 La. L. Rev. 1641 (1993). The note discusses the Louisiana Supreme Court case of Moresi , and expounds upon the single phrase in Moresi that Article 1, § 5 (not § 7 ) of the Louisiana constitution does not include the expression no law shall, which indicate[s] that its protections reach far beyond limiting only state action. Id . at 1651 (citing Moresi v. Dept of Wildlife & Fisheries , 567 So.2d 1081, 1092 (La.1990) ). The note states: It can be argued that the language no law shall indicates restrictions on the state. If such language is violated, the state is the focus of corrective measures. Id . at 1650. Unfortunately for ODaniel, Article 1, § 7 explicitly includes the language no law shall.
I agree with the majority opinions concern about the reasonable belief standard, but it does not matter here: without any facts to support a discrimination claim there is nothing to support a reasonable belief.