Opinion
Civil Action No. 2:99-CV-00138, Case No. 2:99cv138-SAA.
Signature Date: April 13, 2000. Filed Date: April 14, 2000.
MEMORANDUM OPINION
The court has before it Defendant's motion for summary judgment in the above-styled case. Defendants Tom Horton, John Coates, and Sheraton Tunica Corporation invoke this court's jurisdiction under 28 U.S.C. § 1332, and in accordance with the provisions of 28 U.S.C. § 636(c), plaintiff Lynda Disney and the defendants Tom Horton, John Coates, and Sheraton Tunica Corporation consented to have a United States Magistrate Judge conduct all proceedings in this case, including an order for entry of a final judgment. Therefore, the undersigned has authority to render an opinion regarding the motion for summary judgment.
FACTUAL SUMMARY
In ruling on a motion for summary judgment, the court shall not make credibility determinations, weigh the evidence or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. This factual summary is drafted in accordance with this holding.
Plaintiff Disney started working as a dealer for the Sheraton Tunica Corporation ("Sheraton") on July 25, 1994. In her complaint, Disney states that beginning in September, 1995, one of her supervisors, defendant John Coates, sexually harassed her until May, 1998. Similarly, Disney's complaint states that another of her supervisors, Tom Horton, sexually harassed her from September, 1994 until her termination in September, 1998.
In January 1998, Sheraton's Casino Human Resources Department (the Department) investigated a formal sexual harassment complaint filed by another employee, Anecia Holt, against Horton and Coates. As part of their investigation, the Department interviewed Lynda Disney. At this January 1998, interview, Disney informed the Department of the sexual harassment she experienced at the hands of Horton and Coates. After the investigation of the Anecia Holt complaint, Vice President of Casino Operations Joe Rushinock counseled Coates about the alleged inappropriate behavior and remarks.
As a result of Department's investigation into the complaint by Holt, Sheraton suspended Horton for three days without pay on February 20, 21 and 22, 1998.
On May 31, 1998, Disney received a verbal warning for violations of Sheraton's attendance policy. At that time Disney had 8 1/2 "occurrences" under the policy. Under Sheraton's attendance policy in effect at that time, ten occurrences by an employee within a six-month period constituted grounds for termination. Occurrences, according to the employment handbook (portions of which the defendants submitted as Exhibit 4A to their motion) accrue in 1 1/2, 1, or 1/2 increments depending on the violation. The violations include but are not limited to missing work with at least two hours notice (1 occurrence) and showing up late after giving notice of impending tardiness (1/2 occurrence), and the handbook provides that accumulation of occurrences within certain time frames will result in employee discipline.
On June 20, 1998, plaintiff received a written warning for violations of Sheraton's attendance policy. At that time Disney had 9 1/2 occurrences under the policy. In July 1998, defendant Coates resigned from his employment from Sheraton to take another job. The last day that John Coates worked at Sheraton was July 14, 1998. On July 18, 1998, Disney received a final written warning for violations of Sheraton's attendance policy. At that time, Disney had 10 1/2 occurrences under the policy. On September 25, 1998, Sheraton, through one of its supervisors, suspended Disney pending an investigation into 11 1/2 occurrences under the policy. Disney admitted to Jim Zompa, Vice President of Human Resources, that she was absent for each of the occurrences. Pursuant to Sheraton's attendance policy, Zompa decided to terminate plaintiff's employment, effective September 30, 1998. In plaintiff's complaint she alleges that during the last six months of her employment with Sheraton, a life-threatening illness caused her to be absent approximately ten times.
On July 12, 1999, plaintiff filed suit against Horton, Coates and Sheraton for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended. Further, plaintiff alleges a number of state law claims for intentional and negligent infliction of emotional distress, invasion of privacy, assault and battery, and outrageous conduct. In addition, plaintiff mentions possible claims under the violence Against Women Act, 42 U.S.C. § 13981(b) (1997), and intimidation of a witnesses in a federal court proceeding under 42 U.S.C. § 1985(2) and (3). Attached to the complaint was a copy of the charge of discrimination which she filed with the EEOC and an amended charge of discrimination. In these documents Disney claimed she suffered discrimination until September 28, 1998.
On July 29, 1998, Anecia Holt filed a federal lawsuit against Sheraton and Tom Horton. In late November 1998, prior to a scheduled settlement conference on December 17, 1998, the parties to the Holt lawsuit settled. Counsel for Anecia Holt never indicated that Lynda Disney would be a witness in Holt's lawsuit.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L.Ed.2d 265 (1986). After a proper motion for summary judgment is made, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.), cert. denied, 513 U.S. 1045 (1994); Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). Substantive law determines what is material. Anderson, 477 U.S. at 249. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327. "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538 (1986); Federal Savings and Loan, Inc. v. Kralj, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving party. Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995); Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir. 1994); King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); see Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Little, 37 F.3d at 1075 (emphasis omitted).
THE MOTION FOR SUMMARY JUDGMENT
Defendants' motion for summary judgment was filed December 21, 1999. Plaintiff has wholly failed to respond to defendant's motion in a timely fashion or seek an extension of time within which to do so. Although this court cannot grant summary judgment by default, i.e., simply because there is no opposition to the motion, Hibernia National Bank v. Administration Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985), the court may accept as undisputed the movant's version of the facts and grant the motion where the movant has made a prima facie showing of its entitlement to summary judgment. Eversly v. Mbank, 843 F.2d 172, 174 (5th Cir. 1988). Therefore, the question is whether defendant has made a prima facie showing as to each of six (6) the claims advanced. Plaintiff's claims include: (1) sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended; (2) state law claims for intentional and negligent infliction of emotional distress; (3) a state law claim for invasion of privacy; (4) a state law claim for assault and battery, and outrageous conduct; (5) a possible claim under the violence Against Women Act, 42 U.S.C. § 13981(b) (1997); and (6) intimidation of a witnesses in a federal curt proceeding under 42 U.S.C. § 1985(2) and (3). The applicability of a summary judgment motion on each claim is considered below.
1. Plaintiff's Title VII sexual harassment.
Plaintiff alleges violation of Title VII by defendant Sheraton only. A Title VII plaintiff must file a claim for sexual discrimination within 180 days of the alleged unlawful employment practice has occurred. 42 U.S.C. § 2000e-5(e)(1). In Zipes v. Trans World Airlines Inc., 455 U.S. 385, 393 (1982), the United States Supreme Court held that the filing of a timely charge with the Equal Employment Opportunity Commission (EEOC) is not a jurisdictional prerequisite to a suit in federal court; rather, it is a requirement like a statute of limitations and is subject to waiver, estoppel, and equitable tolling. Thus, a Title VII plaintiff who has initiated proceedings with a state or local agency cannot sustain a claim of sexual harassment for events that occurred more than 180 days before the filing of the charge of discrimination. Webb v. Cardiothoratic Surgery Assoc., 139 F.3d 532, 537 (5th Cir. 1998).
Disney filed her initial charge of discrimination on December 2, 1998. Thus, she may recover under Title VII for conduct that occurred after June 4, 1998, 180 days before the filing of her charge. Defendant's motion for summary judgment states: "By her own admission, Plaintiff complained of sexual harassment by Tom Horton and John Coates in January 1998 and therefore any incidents of harassment by necessity occurred prior to January 1998." On the other hand, plaintiff attached to her complaint a copy of the charge of discrimination which she filed with the EEOC and an amended charge of discrimination. The charge and amended charge, both sworn before a notary, indicate that the alleged harassment continued until September 28, 1998. Whether or not plaintiff suffered any harassment after June 4, 1998, such that the Title VII claim can proceed, presents a genuine issue of material fact. Thus, summary judgment is unwarranted as to this claim. Because the court views summary judgment as inappropriate on these grounds it does not consider whether or not plaintiff has a valid claim for sexual harassment under the continuing violation exception to the 180-day statute of limitations period.
The defendants speculate that the plaintiff might be using the continuing violation theory in an effort to advance a claim in the face of the statute of limitations. This equitable theory allows a plaintiff to sustain a claim past the limitations period in cases where an unlawful employment practice happens over an extended time period. As long as some act or acts occurred within the limitations period, other acts otherwise barred by the statute of limitations can be considered. See Webb v. Cardiothoracic Surgery Assoc., 139 F.3d 532 (5th Cir. 1998).
2. Plaintiff's Title VII claim for retaliation
Plaintiff also seeks relief under Title VII against defendant Sheraton on grounds that Sheraton retaliated against her for a statement she gave in a co-worker's (Anecia Holt) lawsuit. Sheraton posits that the retaliation of which Disney complains manifested itself in the form her termination on September 30, 1998. (Defendant's brief in support of motion, at 9-10). On the other hand, Disney has alleged that she suffered retaliation in the form unfair criticism, unfair discipline by her supervisor Horton and changes in start time.From the outset, the court observes that the unfair discipline, unfair criticism, and changes in start time are not the stuff of which a retaliation claim is made. "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). "Ultimate employment decisions include acts such as hiring, granting leave, discharging, promoting, and compensating." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (citing Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995)). In Mattern, the court found that a visit to an employee's home, a verbal threat of being fired, a reprimand for not being at her assigned work station, a missed pay increase, and being placed on final warning did not constitute an adverse employment decision because of their lack of consequence. Mattern, 104 F.3d 708. Similarly, the Dollis court held that allegations of refused consideration for promotion, refused attendance at a training conference, criticism of work, and employee receipt of false information from the employer about certain aspects of employment did not rise to the level of ultimate employment decisions; rather, these were tangential to decisions that might be a future employment decision. Dollis, 77 F.3d at 782.
In the case at bar, aside from the termination, the other forms of retaliation in the complaint are not sufficient to sustain a claim under this claim. The criticism, the change in start times and the unfair discipline were not ultimate employment decisions and did not rise above having a mere tangential effect on a possible future ultimate employment decision. See Mattern, 104 F.3d at 707. See also Hill v. Mississippi St. Empl. Serv., 918 F.2d 1233 (5th Cir. 1990) The court concludes that termination of employment on September 30, 1998 is the only ultimate employment decision at issue.
In order to make a prima facie case for retaliation, plaintiff must prove (1) that plaintiff engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. Dollis, 77 F.3d at 780. Sheraton argues that there is no causal connection between the adverse employment decision (the September 30, 1998, termination) and the protected Title VII activity (participation in an earlier sexual harassment case and plaintiff's earlier complaints). In paragraph 27 of Disney's complaint, she admits that she missed about ten days of work in her last six months of employment. In support of its motion for summary judgment Sheraton submitted the affidavit of the swing shift manager, Maxwell Spinks, who supervised Disney during the relevant period in question. He stated that Disney received numerous written and verbal warnings about occurrences relating to missed work. Further, attached to the affidavit are written documents, signed by Disney which acknowledge receipt of the missed work warnings. Also part of the affidavit is a section of Sheraton's employee handbook which explains company policy relating to missed work. The Employee Conduct section of the handbook, under the subheading "tardiness and absenteeism" states that when an employee is not available, regardless of the reason, an occurrence accrues on that employee's record. An employee who misses work due to a medical condition, even when accompanied by a doctor's note, can still be charged an occurrence for purposes of Sheraton's missed work policy. Also noteworthy in Maxwell Spinks affidavit is his assertion that he had no knowledge of either Disney's complaints of sexual harassment by Horton and Coates or Disney's participation in the Anecia Holt suit. Rather, Spinks states that his sole reason for termination of the plaintiff was a severe attendance problem. Because plaintiff has provided no evidence to combat these sworn facts and documents, the court may accept as undisputed the movant's version of the facts and grant the motion if the movant has made a prima facie showing of its entitlement to summary judgment. Eversly v. Mbank, 843 F.2d 172, 174 (5th Cir. 1988). The uncontested evidence of Disney's attendance violations defeats the third prong or the causation prong of plaintiff's Title VII retaliation claim. Therefore, the court grants Sheraton's motion for summary judgment on the retaliation claim.
In addition the handbook provides that the following are not considered absences: a) Jury Duty; b) lay-off; c) leave of absence; d) pre-approved absence; e) work related injury; f) disciplinary absence (i.e., suspension).
The handbook also states in subsection six of this section: "three or more consecutive absences must be verified by a doctor's note." This provision indicates that even an absence verified by a doctor will count as an occurrence. The court reads this language, when read in context with the preceding section, to mean that three consecutive absences without a doctor's note would constitute job abandonment. A doctor's note would not expunge an occurrence but it might save the continuously absent from termination.
3. Plaintiff's claim for intimidation against all defendants.
Plaintiff advances a claim against all three defendants for intimidation under 42 U.S.C. § 1985(2)-(3). (Plaintiff's complaint ¶ 1 and ¶ 51-55). Subsection (2) of the statute allows a plaintiff to recover damages when "two or more people conspire to deter by force or intimidation or threat any party or witness in any court of the United States from attending court or from testifying to any matter pending therein, freely fully, and truthfully . . . or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice." 42 U.S.C. § 1985(2). Subsection (3) provides the remedy for § 1985 violations: "the party so injured or deprived may have an action for the recovery of damages occasioned by such injury of deprivation, against any one or more of the conspirators." 42 U.S.C. § 1985(3).
Apart from the remedial scheme set forth in § 1985(3), subsection (3) also states that deprivation of certain rights or privileges not relevant here are compensable injuries. See part B., infra.
A. § 1985(2)
In Deubert v. Gulf Federal Savings Bank, 820 F.2d 754, 758 (5th Cir. 1987), the Fifth Circuit noted that:
[S]ection 1985(2) was intended to protect those parties who were physically present to attend or testify in a federal court; the statute was not intended to create a federal tort remedy for economic retaliation against those who pursue work related claims. Since the plaintiffs have not alleged that they were injured as a result of their having attended or testified in a court proceeding, the district court properly dismissed their claim under section 1985(2).
Disney's claim of intimidation is defective for two reasons. First, plaintiff alleges that she was a potential witness in an earlier lawsuit filed by a co-worker against Sheraton and Horton. She further posits that she endured sexual harassment by Horton and Coates in their attempts to deter her from testifying at the "anticipated federal trial." (Plaintiff's complaint ¶ 29). The underlying suit to which Disney refers was settled shortly after the case management conference in that case; moreover, Disney was never a witness nor was she ever deposed. Therefore, the earlier lawsuit was not sufficiently mature so as to warrant application of § 1985(2). Second, numerous courts have held that the remedy provided for § 1985(2) plaintiffs applies to parties and not mere witnesses. Rylewicz v. Beaton Servs., Ltd., 888 F.2d 1175, 1180 (5th Cir. 1989). See Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988); David v. United States, 820 F.2d 1038, 1040 (9th Cir. 1987) (reporting that "allegations of witness intimidation under § 1985(2) will not suffice for a cause of action unless it can be shown the litigant was hampered in being able to present an effective case. . . . Since [the witness] has not shown she was a party to the actions in which she was intimidated, she can show no injury under § 1985(2)."). But see Brever v. Rockwell Int'l Corp., 40 F.3d 1119 (10th Cir. 1994) (allowing a witness to bring suit under § 1985 and recover damages); Silverman v. Newspaper Mail Deliverers' Union, No. 97 Civ. 0040(RLE), 1999 WL 893398, at *2 (S.D.N.Y. Oct. 18, 1999) (same).
The court interprets the statute narrowly and declines to extend a remedy under § 1985(2) to witnesses. Disney failed to show or allege that the earlier suit initiated by a co-worker was in any way hampered by the alleged intimidation by Horton and Sheraton. Further, she was never a party in that lawsuit and therefore lacks standing as a § 1985(2) plaintiff. Therefore, the defendants' motion for summary judgment on the § 1985(2) intimidation claim is granted.
B. § 1985(3)
Section 1985(3) not only provides the remedy for victims of § 1985 violations, it also sets forth other possible actions which are compensable. However, "Congress limited the coverage of the statute [1985(3)] by requiring as an element of the cause of action the allegation of a class based invidiously discriminatory animus behind the conspirators' action." Dubray v. Rosebud Housing Authority, 565 F. Supp. 462, 466 (D.S.D. 1983) ( citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). The requirement is not met in every case in which one or more employees have a grievance concerning their employers' method of operating a business or government agency and are discharged from the jobs by the employer. Dubray, 565 F. Supp. at 467. The law in this circuit is that in order to state a claim under § 1985(3), a plaintiff must allege that he or she is a victim of a race-based conspiracy. Deubert v. Gulf Fed. Savs. Bank, 820 F. 754, 757 (5th Cir. 1987). Because nothing in Disney's complaint indicates that she suffered race-based discrimination, the defendants' motion for summary judgment is granted as to the § 1985(3) claim.
Despite the Supreme Court's statement in Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), that "some racial or perhaps otherwise class-based, invidiously discriminatory animus" is a prerequisite to a § 1985(3) action, the Court has never held that nonracial anuimus is sufficient to sustain a § 1985(3) action. Newberry v. East Texas State Univ., 161 F.3d 276, 281 n. 2 (5th Cir. 1998).
4. Plaintiff's state law claims A. Intentional infliction of emotional distress against all defendants
Plaintiff advances a claim against all three defendants for the intentional infliction of emotional distress. The statute of limitations for the intentional infliction of emotional distress is one year. Watkins v. United Parcel Service, Inc., 797 F. Supp. 1349, 1361 n. 13 (S.D. Miss 1992). Plaintiff concedes that the sexual harassment allegedly committed by John Coates ceased on May, 1998. Assuming arguendo that Coates harassed Disney on May 31, 1998, plaintiff must have filed her claim by May 31, 1999, in order to make this claim timely. Because she did not file her complaint until July 12, 1999, Disney's claim against Coates for the alleged commission of emotional distress is barred by the applicable statute of limitations. Coates' motion for summary judgment on this count is hereby granted.
On the other hand, Disney alleges that the offensive, intentional conduct practiced by Sheraton and Horton continued until September 28, 1998. Disney's July 12, 1999 complaint was filed well within the one-year window applicable for emotional distress. Sheraton and Horton argue that because plaintiff asserted that she had been sexually assaulted by Horton as of January 1998 that her intentional tort claim "by necessity occurred prior to January 1998." The defendants further posit that because Disney knew that she had been injured at that time (January 1998), her claims accrued on that date and the statute of limitations started to run. However, the facts before the court indicate that Disney stated in her EEOC letter that she endured harassment by Horton until her termination in September, 1998. Indeed, there is a genuine issue of material fact as to whether Horton continued the alleged harassment after Disney's initial complaint in early 1998 or for that matter, after July 12, 1998, the relevant time in the case sub judice for limitations of actions purposes. Accordingly Sheraton and Horton's motion for summary judgment is granted in part on the ground that the statute of limitations has run for claims of intentional infliction of emotional distress before July 12 and denied as to claims of such actions taken after July 12.
B. Assault and battery, invasion of privacy and outrageous conduct against Horton and Coates.
The limitations period for other intentional torts is one year:
All actions for assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be one (1) year after the cause of action accrued, and not after.
Miss. Code Ann. § 15-1-35 (West 1999). See also Veselits by Cruthirds v. Visualize, 653 F. Supp. 1570, 1575-76 (S.D.Miss. 1987), aff'd, 824 F.2d 391 (assault and battery carries a one-year statute of limitations); Young v. Jackson, 572 So.2d 378, 382 (1990) (the one-year statute of limitations applies to invasion of privacy actions the same as in actions for defamation).
As a preliminary matter, plaintiff's claim for outrageous conduct is, under Mississippi law, more commonly known as the intentional infliction of emotional distress. Donald v. Amoco Production Co., 735 So.2d 161, 179 (Miss. 1999). Therefore, the outrageous conduct claim is duplicative and the court will not consider this a separate claim, but rather one claim for the intentional infliction of emotional distress. See Malloy v. Sears, Roebuck Co., No. 4:96CV157-EMB, 1997 WL 170313 (N.D.Miss. March 4, 1997) (citing King v. Otasco, Inc., 861 F.2d 438, 442 (5th Cir. 1988) (stating that "the claims for intentional infliction of emotional distress and outrageous conduct . . . are undoubtedly intentional torts, and are so closely analogous to the common law actions for assault, libel, and slanderous words that they, too, must fall within the statute's bar").
Because the limitations period for assault and battery and invasion of privacy is the same as that for intentional infliction of emotional distress (including, as noted above, outrageous conduct) the analysis is the same. See supra. Therefore, Coates' motion for summary judgment is hereby granted as to all state law claims, including assault and battery, outrageous conduct ( i.e., intentional infliction of emotional distress) and invasion of privacy. Horton's motion for summary judgment for assault and battery, outrageous conduct ( i.e., intentional infliction of emotional distress) and invasion of privacy on the same ground is granted as to actions taken before July 12, 1998, and is denied as to actions taken by him after that date.
Disney filed this lawsuit on July 12, 1999. Thus, the offensive conduct must have occurred after July 12, 1998 to satisfy the requirements of § 15-1-35. Coates stopped working at Sheraton in May, 1998. Sheraton continued to employ Horton after July 12, 1998.
5. Plaintiff's Claim Under the Violence Against Women Act (VAWA)
Plaintiff's complaint does not state which defendants are alleged to have violated this statute. Therefore, the court will assume that this claim was made against all three defendants.
In order to sustain a claim under the VAWA a plaintiff must show that the defendant committed a crime of violence which either (1) constituted a felony against the person or (2) constitutes a felony against property if the conduct presents a serious risk of physical injury to another. 42 U.S.C.A. § 13981(d)(2)(A). Thus, Disney must have alleged a predicate felony in order to state a claim under the VAWA. Plaintiff did not allege an underlying felony in her complaint or amend her complaint so as to allege such a felony. The scheduling order in this case required amendments to the pleadings to be made by November 22, 1999. Because the court cannot speculate as to the felony plaintiff claims supports the VAWA claim, and the time to allege the felony passed, the court is persuaded that defendants' motion for summary judgment on this claim should be granted.
6. Plaintiff's State Law Claim For Negligent Infliction Of Emotional Distress Against All Defendants
In paragraph 67 of plaintiff's complaint, Disney advances a claim for the negligent infliction of emotional distress. In their motion for summary judgment, the defendants contend that relevant portions of Mississippi Workers' Compensation Law, specifically Mississippi Code Annotated § 71-3-9 (West 1999), provide an exclusive remedy for Disney and thereby preclude a tort claim grounded in negligence. The court agrees. Section 71-3-9 provides, in part, the following: "The liability of an employer to pay compensation shall be exclusive and in place of all other such liability of such employer to employee . . . except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to maintain an action at law under this chapter, or to maintain an action at law for damages on account of such injury or death."
Mississippi cases which have considered the viability of a negligence claim in the employer/employee context refused to allow such an action. In Campbell v. Jackson Business Forms Company, 841 F. Supp. 772, 774-75 (S.D.Miss. 1994), the court considered whether an employee's common-law claim of negligent supervision of employees was barred by the exclusive remedy provision of Miss. Code Ann. § 71-3-9. The court held that "[b]ecause Campbell [the employee] alleges that her claim arose out of the employer-employee relationship between her and JBF [the employer], and because the tort claim is clearly grounded in negligence, her negligent supervision claim against JBF and McCardle [the president of JBF] is barred by the Workers' Compensation Law." See Allen v. NPC Int'l, Inc., No. 1:95CV20-B-D, 1996 WL 407564 (N.D. Miss June 10, 1996) ("A claim for negligent infliction of emotional distress does not arise from acts of intentional discrimination. Furthermore, any state tort claim grounded in negligence asserted by the plaintiff would be barred by the exclusive remedy provision of the Mississippi Workers' Compensation Law."); Griffin v. Futorian Corp., 533 So.2d 461, 463-64 (Miss. 1988) (holding that where employee claimed that employer and manager wilfully failed to remedy a situation which caused injury, workers' compensation law barred advancement of the claim). The defendants' summary judgment motion on the negligent infliction of emotional distress claim should be granted as to all defendants.
The Campbell court also observed that the plaintiff's claim of negligent supervision was nothing more than a recharacterization of her Title VII claim. Campbell, 841 F. Supp. at 775.
For all of the foregoing reasons, Coates' motion for summary judgment is granted on all state and federal claims. Sheraton's motion for summary judgment is granted as to plaintiff's claims of retaliation under Title VII, intimidation and any other claims arising under § 1985(2) (3), any claim under The Violence Against Women Act ( 42 U.S.C. § 13981) and negligent infliction of emotional distress. Sheraton's motion is granted as to plaintiff's claim for intentional infliction of emotional distress ( i.e., outrageous conduct) for actions before July 12, 1998, and denied as to claims of such actions alleged to have taken place after July 12, 1998. Sheraton's motion is denied as to plaintiff's claims of sexual harassment in violation of Title VII. Horton's motion for summary judgment is granted as to plaintiff's claim of intimidation and any other claims arising under § 1985(2) (3), any claim under The Violence Against Women Act ( 42 U.S.C. § 13981) and negligent infliction of emotional distress. Horton's motion is granted as to plaintiff's claims of intentional infliction of emotional distress ( i.e., outrageous conduct), assault and battery and invasion of privacy for actions before July 12, 1998, and is denied as to claims of such actions alleged to have taken place after July 12, 1998.
An order in accordance with this opinion shall issue this day.
ORDER
In accordance with the memorandum opinion issued this day, it is hereby ORDERED:
That defendants' motion for summary judgment is granted in part and denied in part as follows:
(1) The motion is granted as to all plaintiff's claims against defendant Coates. Those claims are dismissed with prejudice, and Coates is dismissed as a defendant.
(2) The motion is granted as to plaintiff's claims against defendant Sheraton for (a) retaliation under Title VII; (b) intimidation and all other claims under 42 U.S.C. § 1985(2)-(3); (c) violation of the Violence Against Women Act, 42 U.S.C. § 13981; (d) negligent infliction of emotional distress; and (e) intentional infliction of emotional distress regarding events which occurred prior to July 12, 1998. These claims are dismissed with prejudice.
(3) The motion is granted as to plaintiff's claims against defendant Horton for (a) intimidation and all other claims arising under 42 U.S.C. § 1985(2)-(3); (b) violation of the Violence Against Women Act, 42 U.S.C. § 13981; (c) negligent infliction of emotional distress; and (d) intentional infliction of emotional distress, assault and battery and invasion of privacy regarding events which occurred prior to July 12, 1998. These claims are dismissed with prejudice.
(4) The motion is denied as to (a) plaintiff's claims against defendants Sheraton and Horton for Intentional emotional distress regarding events occurring after July 12, 1998; (b) plaintiff's Title VII claim against defendant Sheraton for sexual harassment; (c) plaintiff's claims against defendant Horton for assault and battery and invasion of privacy regarding events occurring after July 12, 1998.
ALEXANDER, S. ALLAN UNITED STATES MAGISTRATE JUDGE