Opinion
Civil Action 01-1226, SECTION "T"(3)
September 26, 2001
Before the Court is a Motion for Summary Judgment filed on behalf of the defendant, Gulf States Specialties, Inc., now Gulf States Asphalt Co., L.P. Oral argument was waived by the parties; thus, the matter was submitted for the Court's consideration on the briefs alone, August 29, 2001. The Court, having considered the arguments of the defendant, the failure of the plaintiff to file an opposition, the Court record, the evidence presented, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
The plaintiff, Pamela McKee, filed this suit alleging that she was terminated from her employment in retaliation for filing a charge of sexual harassment with the Equal Employment Opportunity Commission ("EEOC"). In September 1998, Norrell Staffing Services ("Norrell") placed the plaintiff with defendant, Gulf States Specialties, Inc., now Gulf States Asphalt Co., L.P. ("Gulf States"). Gulf States, a butyl (rubber) sealant manufacturer, assigned McKee as a temporary employee to the production department. On or about July 8, 1999, plaintiff notified Ken Lacassin, Gulf States Vice President of Production responsible for all employment-related issues at the Westwego facility, that she had been sexually harassed by several Gulf States employees. Lacassin ordered an investigation which concluded that there was no evidence of sexual harassment.
The plaintiff did not set forth in her petition under what law said claims were being pursued.
On the morning of August 6, 1999, the plaintiff was involved in an argument with two other Norrell temporary employees assigned to Gulf States, namely, Carla Formayer and Tabatha Sheperd. Mr. Lacassin separated the three individuals and contacted Norrell's President, David Koch, informing him of the incident and requesting that he address the situation. Mr. Koch arrived at the plant later that day and spoke with each individual involved. Three days later, the plaintiff filed a charge with the EEOC and Louisiana Commission on Human Rights against Gulf States alleging that she had been sexually harassed from September 28, 1998 through April 21, 1999. On August 19, 1999, the EEOC issued a finding that there was no information obtained to establish a violation. On the same day, McKee called Mr. Koch making him aware of additional problems between she and Shepherd. Thereafter, Shepherd resigned while Koch terminated McKee's employment on August 23, 1999, for inappropriate and disruptive behavior. Mr. Koch notified Lacassin on August 24, 1999, that McKee had been terminated and would not be returning to Gulf States to complete her assignment. Subsequently, on October 8, 1999, McKee filed a second charge with the EEOC and Louisiana Commission on Human Rights against both Norrell and Gulf States alleging that she was discharged for conflictive behavior with a co-worker and in retaliation for filing a charge of discrimination against the company where she was assigned to work. The EEOC issued a finding that it was unable to conclude that a violation occurred. Shortly thereafter, this case ensued. Defendant, Gulf States, has filed this Motion for Summary Judgment.
II. LAW AND ANALYSIS:
A. Law on Summary Judgment:
Rule 56(c) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") provides that summary judgment should be granted "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 moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir. 1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Co., 475 U.S. 574, 588 (1986) (emphasis supplied);Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nomnoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In some instances, as in the case at hand, a motion for summary judgment is unopposed. However, the Federal Rules of Civil Procedure require the Court to examine a motion for summary judgment on its merits, and to grant an unopposed motion only "if appropriate." FED. R. Civ. P. 56(e).
B. Law on Retaliation Claims:
A retaliation claim under Title VII, 42 U.S.C. § 2000e-3 (a), has three elements: (1) the employee engaged in activity protected by Title VII; (2) an employer took adverse action against the employee; and, (3) a causal connection exists between the protected activity and the adverse employment action. Webb v. Cardiothoracic Surgery, Inc., 139 F.3d 532 (5th Cir. 1998), Grimes v. Texas Department of Mental Health, et al., 102 F.3d 137, 140 (5th Cir. 1996); citing Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996); Shackelford v. Deloitte Touche, L.L.P., 190 F.3d 398. 404 (5th Cir. 1999). The establishment of a prima facie case gives rise to an inference of retaliation. Id. The burden then shifts to the defendant who may rebut the presumption by articulating a legitimate, non-discriminatory reason for its actions, Id. If the defendant satisfies this burden, the plaintiff must prove the proffered reasons were pretextual. Id.
C. Arguments of Gulf States in Support of the Motion:
Gulf States argues first that plaintiff cannot establish retaliation under federal law pursuant to Title VII, 42 U.S.C. § 2000e-3 (a) which requires as one essential element that an employer took adverse action against the employee. Gulf States contends that McKee cannot establish that Gulf States took any adverse action against her as Gulf States did not terminate her nor participate in the decision to terminate. The affidavit testimony of Lacassin and Koch establish that Lacassin telephoned Koch and requested that he meet with Norrell's employees after an altercation on August 6, 1999. Koch investigated the incident and warned both McKee and Shepherd that any further disturbances would result in immediate termination. McKee called Koch regarding another incident a few days later, whereupon Koch spoke with Shepherd and learned that she had resigned due to ongoing difficulties with McKee. Koch then terminated McKee on August 23, 1999. Lacassin first learned of her termination on August 24, 1999, when Koch telephoned Lacassin. Lacassin has stated that he in no way participated in the decision to terminate McKee, which is confirmed by Koch's affidavit. Accordingly, defendant asserts that this retaliation claim should be dismissed as a matter of law.
Secondly, Gulf States contends that plaintiff does not have a valid cause of action under the Louisiana Employment Discrimination Law ("LEDL"), La.R.S. 23:301, et seq. It is submitted that while Louisiana law prohibits discrimination on the basis of race, color, religion, sex, and national origin, it does not provide for a cause of action for retaliation against those who have engaged in protected activity by making claims relative to those protected characteristics. There are however anti-retaliation provisions included in those sections related to age discrimination, La. R.S. 23:332(D), and sickle cell discrimination, La. R.S. 23:352. Therefore, plaintiff has no retaliation claim in this instance.
Furthermore, Gulf States was not the "employer" of McKee as defined by the statute, La. R.S. 23:331 and related jurisprudence. The Louisiana Court of Appeals for the Fourth Circuit interpreted La. R.S. 23:1006 which predated the 1997 enactment of the LEDL with similar wording to the current definition of "employer" in La. R.S. 23:331. Onyeanusi v. Times Picayune Publishing Co., 485 So.2d 622 (La.App. 4th Cir. 1986). The Fourth Circuit found that the plaintiff was not an employee as the defendant did not pay the plaintiff's wages or withhold any taxes from his check. Id. The Court noted that while the right of control normally determines an employer-employee relationship, the Legislature gave the word "employer" a specific definition under 23:1006, which is controlling in employment discrimination matters. Id. Gulf States did not compensate plaintiff in any respect. Gulf States did not pay the plaintiff's wages or withhold any federal, state, unemployment or social security taxes. Gulf States only verified the hours McKee worked at Gulf States so that Norrell could pay her accordingly. As plaintiff cannot establish an "employer" relationship as defined by Louisiana law and jurisprudence, any claim she may be asserting under the LEDL must be dismissed as a matter of law.
Moreover, as argued previously, Gulf States played no part in the termination or decision to terminate plaintiff and therefor a fundamental element of her state law retaliation claim, should one exist, is missing. Accordingly, plaintiff cannot recover against Gulf States under either federal or state law.
D. The Court's Analysis
In accordance with Rule 56(e) of the Federal Rules of Civil Procedure, the Court has determined that the motion for summary judgment discussed above is "appropriate" under the circumstances involved in this case.
This Court notes that contrary to the arguments of Gulf States, Louisiana does in fact recognize a retaliation claim which can be found in La. R.S. 23:967. However, as asserted by defendant, McKee has failed to come forward with any evidence whatsoever to establish the requisite elements of this cause of action.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of defendant, Gulf States Specialities, Inc., now Gulf States Asphalt Co., L.P., be and the same is hereby GRANTED.