Opinion
Civil Action No. 04-366, c/w 04-504 Section "J" (3).
October 13, 2004
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed on behalf of the defendants, Bally's Casino of New Orleans, LLC, d/b/a Belle of Orleans, LLC, d/b/a Bally's Casino Lakeshore Resort, d/b/a Bally's Louisiana, Inc., Park Place/Bally's Entertainment Corporation d/b/a Park Place Entertainment Corporation d/b/a Caesars Entertainment, Inc., Bally's Midwest Casino, Inc. d/b/a Bally's Louisiana, Inc. d/b/a Bally's Holding Company (hereinafter referred to as "Bally's"). Plaintiff, Samuel Michael Schildkraut ("Schildkraut"), filed a formal opposition memorandum and thereafter supplemented his response. At that point, the defendant filed a supplemental memorandum to which the plaintiff filed formal reply. This matter is before the Court pursuant to 28 U.S.C. 636(c). Having considered the record, the written submissions of the parties specifically addressing the defendants' Motion for Summary Judgment, their arguments, and the applicable law, Bally's motion for summary judgment is GRANTED for the reasons set forth below.
I. CONTENTIONS OF THE PARTIES
The defendants argue that the plaintiff cannot prevail on the claims made in these consolidated proceedings. As to the plaintiff's Title VII claim of religious discrimination, Bally's submits that it must fail because Schildkraut failed to make that claim a part of his charge filed with the Equal Employment Opportunity Commission (EEOC). Bally's contends that the plaintiff's religious discrimination claim pursuant to La.R.S. 23:303 necessarily fails because he did not comply with the aforesaid statute's requirement that a putative plaintiff give notice of his intent to sue his former employer at least thirty (30) days before initiating a lawsuit. As to the plaintiff's retaliation claim under La.R.S. 23:967, the defendants' position is that Schildkraut has not alleged that he either reported or threatened to report a violation of state law by his employer, Bally's. The defendants contend that not one of the papers filed by the plaintiff repairs the aforesaid deficiencies. More particularly, the defendants contend that the plaintiff's self-serving conclusory allegations regarding disparate treatment, standing alone, are insufficient to defeat summary judgment. Addressing plaintiff's allegation that Bally's treated others more favorably than him, the defendants counter that, assuming arguendo that the allegation is true, the plaintiff still fails to state a prima facie case of disparate treatment.
For his part, the plaintiff contends that defendants' motion is without merit. More particularly, plaintiff contends that (1) he did file a charge with the EEOC asserting religious discrimination, (2) because the defendants removed the Civil District Court lawsuit to this Court based upon federal question jurisdiction, defendants waived their right to insist on adherence to the requirement under Louisiana law that the plaintiff give notice of intent to sue at least thirty days prior to initiation of the lawsuit, and (3) the complaint adequately states a claim under Louisiana's Whistle Blower Statute, in that he alleges that he disclosed a workplace act or practice that constitutes a violation of Louisiana law, he reported same to various hotlines and the Gaming Control Board at a hearing in Baton Rouge, Louisiana on June 16, 2003 and that Bally's retaliated by writing up the plaintiff for frivolous matters to cover-up the "whistle-blowing" violations. Plaintiff also alleges that a supervisor's conduct ( i.e., "tapping on his leg") and employee Alfred Holy's conduct of grabbing the plaintiff's arm in a forceful manner and steering him away from one blackjack table and to another constitute violations of Louisiana state law.
II. FACTUAL AND PROCEDURAL BACKGROUND
Bally's initially hired the plaintiff on or about April 2, 2003 to work on its casino boat located in New Orleans, Louisiana. Aside from a one-day orientation period, Schildkraut worked for Bally's for approximately three weeks. On May 29, 2003, Bally's discharged Schildkraut during his probationary period of employment for reasons that he had difficulty getting along with co-workers and he had on an occasion used vile and inappropriate language.
On September 4, 2003, plaintiff filed a claim with the Equal Employment Opportunity Commission ("EEOC"). The instructions on the form directed the complainant to check the box appropriate to indicate the type of discrimination complained of. The choices included race, color, sex, religion, national origin, retaliation, age, disability and other. The only box "X'd" was "other" and plaintiff specified "whistleblower." Although the plaintiff was terminated on May 29, 2003, Schildkraut checked box indicating that the aforesaid violation was "continuing action" through July 29, 2003. Schildkraut's statement of particulars makes no mention of discrimination on the basis of religion and/or religious beliefs or practices. Schildkraut does state that:
EEOC Charge No. 270-2003-02896 [Defendants' Exhibit "B"].
Id.
EEOC Charge No. 270-2003-02896 [Defendants' Exhibit "B"].
I. I was hired by the Respondent [Bally's Casino] on or about March 30, 2003 as a Dealer. I actually started working, after orientation, on or about mid May 2003. During my interview for hire, I informed Respondent that I was against participating in any illegal activities which involves underpaying customers. I was terminated from my employment effective May 29, 2003. The Respondent continues to harass me by informing me to cease and desist from any communications with its employees.
II. During my employment, I was verbally and physically harassed by the management team because I called the employee hotline to report illegal activities; I called police to report illegal dice activities by co-workers and supervisors. I would not participate in these illegal activities and I was subjected to harassment and eventually terminated. I was harassed, in that, the management falsified a sexual harassment claim against me, verbally reprimanded me for talking too much with customers, threatened with termination if I spoke to the co-worker who allegedly made a sexual harassment complaint against me; a manager tapped my leg during discussions of sexual harassment accusations against me; and a male manager grabbed my arm. I was terminated for failure to successfully complete my 90 day introductory period.
III. I believe I was discriminated against because I was a whistle blower and I reported illegal activities to the police. On occasions, since termination, I felt harassed by this Bally's and Park Place Entertainment, including the security staff when I returned company property.
Id.
Even in the "Supplemental Intake Questionnaire" (Plaintiff's Exhibit "F"), executed at the time he filed his formal complaint of "retaliation" for his whistle blowing conduct, Schildkraut did not check the boxes indicating discrimination on the basis of either religion, race or sex.
On November 21, 2003, the plaintiff filed a second EEOC charge against Bally's (EEOC Charge No. 270-2004-00424) alleging discrimination on the bases of race, sex and religion. The particulars of the November 21, 2003 charge were identical to the first charge insofar as the plaintiff reiterated paragraphs I and II set forth above. However, plaintiff alleged that the same conduct set forth in his first application constituted discrimination on the basis of race, sex and religion, to wit:
I. I was hired by the Respondent [Bally's Casino] on or about March 30, 2003, as a Dealer. I actually started working, after orientation, on or about mid May 2003. During my interview for hire, I had informed the Respondent that I was against participating in any illegal activities. I was discharged from my position on May 29, 2003. The Respondent continues to harass me by informing me to cease and desist from any communications with its employees.
II. During my employment, I was verbally and physically harassed by the management team because I called the employee hotline to report illegal activities. I was harassed, in that, the management falsified a sexual harassment claim against me; verbally reprimanded me for talking too much with customers; threatened with termination if I spoke to one of the co-workers who allegedly made the sexual harassment complaint against me; a female manager tapped my leg during discussions of sexual harassment accusation against me; and a male manager grabbed my arm. I was terminated for failing to successfully complete my 90 day probationary period.
III. I believe Respondent discriminated against me based on my race (White), my sex (Male), and my religion (Jewish); in violation of Title VII of the Civil Rights Act of 1964, as amended.
See EEOC Charge No. 270-2004-0424 dated November 21, 2003 attached as Plaintiff's Exhibit "N" to Plaintiff's Second Reply (italicized emphasis added) [Rec. Doc. No. 27]; compare EEOC Charge No. 270-2003-02896 [Defendants' Exhibit "B"].
On November 21, 2003, the EEOC issued a notice to the plaintiff informing him of his right to sue. Accordingly, the plaintiff filed suit in federal and state court in February, 2004.
See Plaintiff's Complaint and Dismissal and Notice of Suit Rights referencing EEOC Charge No. 270-2004-00424 dated November 21, 2003 [Rec. Doc. No. 1].
Both of the plaintiff's complaints allege the following:
On May 26, 2003, Plaintiff, appalled by various gaming violations that he had observed, communicated his objections to Park Place Entertainment's Compliance Hotline (leaving a message), various policing authorities, and Defendant's agents, including, but not limited to, supervisor Clemente Disilvestero.
The unlawful practices that Plaintiff observed are: hustling of bets and tips from players on the craps (dice) tables by co-workers and supervisors, which defrauds players of tips and causes reduced payoffs to the players. Co-workers and supervisors participating in the above were, but not limited to, supervisor Alfred Holy, another supervisor by the first name of David, and a casino dealer by the first name of Dwayne. Supervisor Alfred Holy engaged Plaintiff, unbeknownst to the Plaintiff, to wrongfully take a portion of a player's winning bet. The above stated acts constitute: Fraud under LSA-R.S. 4 § 10.6, Theft under LSA-R.S. 14 § 67, Cheating and Swindling under LSA-R.S. 14 § 67.18, Larceny under LSA-R.S. 29 § 221A(1)(2), Attempted Larceny under LSA-R.S. 14 § 27A, Aiding and Abetting under LSA-[R.S.] 38 § 3084, Conspiracy under LSA-R.S. 29 § 181 and LSA-R.S. 40 § 979A, Accessory After The Fact under LSA-R.S. 29 § 178 and LSA-R.S. 46:1802(1), Petit Theft, and Conspiracy to Commit Fraud.
On May 27, 2003 Plaintiff spoke to Jenny with the Park Place Compliance Hotline of above mentioned situations and sent her an e-mail afterwards.
On May 28, 2003, Plaintiff was called into the office of the Casino Manager, Randall K. Faehnrich. Also present were Shift Manager Cheryl Maas and Tara Lebeau. Plaintiff was grilled over issues of exaggerated and frivolous complaints against Plaintiff. Plaintiff said he had called Park Place Entertainment's Compliance Hotline two days earlier on a number of issues; and he was cut off before he could go into detail. Plaintiff was asked if he had said certain words at an unspecified time. Plaintiff admitted that the words were said. Defendant, strongly, did not appear to be interested in hearing the full context of what Plaintiff had fully said. In an artificial way, the meeting ended on a happy note.
The above mentioned [May 28, 2003] meeting was the first of numerous retaliatory acts on the part of the Defendant against the Plaintiff who had, in good faith, reported violations of law on the craps tables aboard "The Belle".
Also, during the above-mentioned meeting, Cheryl Maas was tapping on Plaintiff's leg in an unwelcome manner.
Defendant took reprisal against Plaintiff by issuing to Plaintiff a frivolous write-up alleging that Plaintiff sexually harassed two female casino dealers, Marlette Simon and Cheryl Dancy. The write-up contained no date of the alleged occurrence and did not specify what the alleged harassment consisted of.
Plaintiff was not allowed to confront his alleged accusers. When Plaintiff stated to Cheryl Maas, who presented Plaintiff with write-up, that he was surprised that Cheryl Dancy, who was Plaintiff's best friend at "The Belle", and gave him rides after work, would have any reason to complaint about Plaintiff, Cheryl Maas threatened to terminate Plaintiff if Plaintiff spoke with Cheryl Dancy about this matter. Plaintiff was allowed very limited space on the write-up to comment about his strong friendship with Cheryl Dancy and there was no follow-up.
Plaintiff was unfamiliar with Marlette Simon.
Defendant further took reprisal upon Plaintiff on the basis of his being a Jewish white male. The two female casino dealers, Cheryl and Marlette Simon, were Afro-Americans. Had Cheryl Dancy and/or Marlette Simon been written-up on a frivolous sexual harassment complaint, they would have a cause of action against the Defendant were they to go to the Equal Opportunity Employment Commission (EEOC), whereas Plaintiff was found to have no cause of action when he brought a complaint to (EEOC).
A non-white Jewish male who had "blown the whistle" on the illegal dice activities would not have faced the same retaliation; and if a write-up had come about, it would be most properly investigated.
Had Plaintiff been tapping on Cheryl Maas' leg, Plaintiff would have been written-up for sexual harassment.
On May 28, 2003, after Plaintiff received the frivolous write-up, Plaintiff soon after, while returning from a break, entered one of the casino pits. From there, Alfred Holy instructed Plaintiff to got to a specific black jack table to deal; and as the Plaintiff headed to the blackjack table as instructed, Alfred Holy violently grabbed Plaintiff by the arm and told him to go to another blackjack table. During a previous discussion, Plaintiff had informed Alfred Holy that he didn't like being grabbed, and that the Plaintiff was Jewish. Alfred Holy's actions constituted Assault And Battery under LSA-R.S. 14 § 33.
Within an hour later, while going on a break from the same casino pit, Alfred Holy tried to block Plaintiff from leaving and insisted that Plaintiff answer as to why Plaintiff had been making various complaints. Plaintiff simply told Alfred Holy, "I've gotta go.", and Plaintiff took his break.
On this break, Plaintiff called police [to complain] of the physical and verbal abuse of Alfred Holy. Plaintiff also called Park Place Entertainment's Compliance Hotline and left a message about the situation with Alfred Holy.
Within an hour, police arrived and spoke with Plaintiff. Cheryl Maas, in front of Police Officers N. Spencer and/or Police Officer Kevin Guillot, told Plaintiff to take the rest of the night off and report to work the next evening as scheduled. This point in time was the early morning hours of May 29th, 2003. Before Plaintiff left the property, one of the Defendant's agents had Plaintiff fill out a statement as to the incident with Alfred Holy.
In this statement, Plaintiff specified his write-up as retaliation over Plaintiff's blowing the whistle on the illegal dice activities; and stated that Plaintiff would be contacting the police on the recent events and actions of "The Belle".
Several hours later, Plaintiff called security at "The Belle" to report, amongst other items, that Cheryl Maas was tapping Plaintiff's leg in an unwanted manner. Plaintiff also sent an email to Park Place Entertainment's Compliance Hotline to report events that had taken place aboard "The Belle" on May 28, 2003.
Later, at approximately 9:30 a.m. on May 29th, 2003, Casino Manager Randall K. Faehnrich called Plaintiff at home to terminate Plaintiff and refused to answer Plaintiff's question as to the oddity of a termination two days after Plaintiff began reporting the illegal activities aboard "The Belle.".
Plaintiff's complaints of violations of law were unheeded by Defendant and were to no avail. Plaintiff's complaints of violations of law to Defendant were: illegal activities on the dice tables, Alfred Holy's Assault and Battery, Cheryl Maas' tapping of Plaintiff's leg, and the frivolous write-up. Plaintiff was discharged by Defendant, for, in good faith, advising the employer of violations of law. By not following up on Plaintiff's complaints, of violations on the dice tables, Defendant Aided and Abetted the dealers and supervisors in their violations and in covering up the violations. Defendant also became An Accessory After The Fact of violations.
See Plaintiff's Complaints [Rec. Doc. No. 1 in EDLA Civ.A. Nos. 04-366 and 04-504].
The plaintiff further specified that the aforesaid acts constitute retaliation in violation of La.R.S. 23:967 and discrimination under La.R.S. 23:332A(1) in that he is protected as "a white male employee who is Jewish." The plaintiff further explained that "[w]hile plaintiff does not contend that the Defendant is prejudiced, Defendant's discriminatory acts, previously described, placed Plaintiff in a situation where Defendant used Plaintiff's sex, race, and religion as a basis to make it difficult for Plaintiff to work in peace or for Plaintiff to have a cause of action before the (EEOC)."
See id., at pp. 9-10.
Id. at p. 10.
The defendants removed the state court lawsuit to this Court and the matters were consolidated for purposes of all further proceedings.
III. APPLICABLE STANDARDS 1. Fed.R.Civ.P. 56 (Summary Judgment)
The principal purpose of Fed.R.Civ.P. 56 is to "isolate and dispose" of factually unsupported claims. Summary judgment is proper where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact. . . ." There is no "genuine issue" when the record taken as a whole could not lead a rational trier of fact to find for the nonmovant.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Summary judgment will be granted against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. "In such a situation, there can be 'no genuine issue of material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Celotex, 477 U.S. at 323.
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex, 477 U.S. at 323; Wenner v. Texas Lottery Commission, 123 F.3d 321, 324 (5th Cir.), cert. denied, 523 U.S. 1073 (1998).
Celotex, 477 U.S. at 322-23.
The Court has no duty to search the record for triable issues. Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Conclusory statements, speculation and unsubstantiated assertions are not competent summary judgment evidence and will not suffice to defeat a properly supported motion for summary judgment. "Summary judgment is appropriate in any case 'where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.'"
Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
Celotex, 477 U.S. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993).
Ragas, 136 F.3d at 458 (emphasis added).
Id.; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996).
Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994) ( citing Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993)); see also Read v. BT Alex Brown, 2003 WL 21754966 * 2 (5th Cir.), cert. denied, 2004 WL 323271 (U.S. February 23, 2004).
2. 28 U.S.C. § 1915's Standard
An in forma pauperis complaint may be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) if it has no arguable basis in fact or law. Both aspects are implicated by defendants' Motion for Summary Judgment.A finding of "factual frivolousness" is appropriate when the facts alleged rise to the level of the irrational, fanciful or wholly incredible. "A complaint lacks an arguable basis in law if it is based undisputably on a meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist." 28 U.S.C. § 1915 provides in pertinent part:
See Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Davis, 157 F.3d at 1005 ( quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time the court determines that —
(B) the action or appeal —
(i) is frivolous or malicious; [or]
(ii) fails to state a claim for which relief may be granted. . . .
28 U.S.C. § 1915(e)(2)(B)(i-ii).
However, to insure legal access in the case of pro se litigants, courts interpret their pleadings liberally. Pro se actions should not be dismissed based upon technical pleading defects. Unless it is clear that pro se litigants can prove no set of facts that will entitle them to relief, the action must be allowed to proceed.
United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996).
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Notwithstanding this relaxed treatment, the pro se litigants' efforts to remedy what they perceive as injustices may result in unwittingly filing an action that suffers jurisdictional defects, is barred by the passage of time, runs afoul of various procedural rules or fails to conjure up conduct that is violative of a legal right and thus does not warrant a legal remedy. Discussing the principles of analysis and review, one court observed that:
"[t]he rule, that for every right or wrong there is a remedy, is restricted to those rights and wrongs which the law recognizes as legal, in the sense of giving rise to a cause of action, and does not apply to every species of loss or injury that an individual may sustain by the act of another. The rule cannot be invoked where the right itself fails; nor can it be invoked for the purpose of securing a remedy for a merely moral wrong which does not invade any legal right. . . .
Stafford v. Alcatel USA, Inc., 2001 WL 34084368 (E.D. Tex.) ( quoting 1A C.J.S. Actions § 11 (1985)).
In such cases, the Federal Rules of Civil Procedure, in particular Rule 56, provide a mechanism for weeding out claims that have no possibility of success on the merits because of either a fatal procedural defect in the plaintiff's case or some substantive defect, including no evidence supporting an essential element of the plaintiff's claims.
IV. ANALYSIS A. Title VII: Discrimination of the Basis of Race, Gender and Religion
Courts do not have jurisdiction over Title VII claims for which a party seeking relief has not exhausted administrative remedies. Title VII requires a party to exhaust his administrative remedies before instituting a lawsuit in federal court. The Court's scope of inquiry in a Title VII action "is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." The administrative complaint must be submitted within 180 days of the alleged unlawful employment practice.
See 42 U.S.C. § 2000e-5(f)(1); National Association of Government Employees v. City of Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994); Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1279 (5th Cir. 1994).
Young v. City of Houston, Tex., 960 F.2d 177, 179 (5th Cir. 1990) ( citing Sanchez v. Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970)).
In this case, the alleged unlawful employment practices at issue ( i.e., discrimination on the basis of race, sex and religion) occurred on or about May 28, 2003. On November 21, 2003, which is within the 180-day time period prescribed by Title VII, the plaintiff filed an administrative complaint alleging same and the EEOC issued a notice of suit rights with respect thereto. On the face of this record, it appears that the plaintiff timely filed his EEOC claims of discrimination on the basis of race, sex and religion. However, the Court observes that there appears to be some irregularity with respect thereto in that the EEOC Charge No. 270- 2004-00424 and the EEOC's notice of rights to sue are both dated the same. Most notably, it is inconceivable that the EEOC notified Bally's of Schildkraut's race, sex and religious discrimination claims, since the charge was filed, dismissed and the notice of rights to suit issued all on the same date, i.e., November 21, 2003.
Turning to the substantive requirements applicable to claims of discrimination on the basis of race, gender or religion, the relevant portions of Title VII provide:
(a) It shall be an unlawful employment practice for an employer —
(1) to . . . discharge any individual . . . because of such individual's race, . . . religion [or] sex. . . .42 U.S.C. § 2000e-2(a)(1).
(j) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless the employer demonstrates that he is unable to reasonably accommodate an employee's religious observance or practice without undue hardship on the conduct of the employer's business.42 U.S.C. § 2000e(j).
Title VII makes it unlawful for an employer to discharge or otherwise discriminate against an individual with respect to that person's compensation, terms, conditions, or privileges of employment, or to otherwise adversely affect the person's status as an employee, because of that person's race, sex or religion. Here, there is no direct evidence that the defendants discriminated against the plaintiff because of his race (white), sex (male) or religion (Jewish); therefore, the familiar McDonnell Douglas burden-shifting framework applies.
In the Title VII context, direct evidence of discrimination is evidence that proves that the defendant acted with discriminatory intent without the need for inference or presumption, including any statement or document which shows on its face that an impermissible criterion served as a basis for the adverse employment action. See Fabela v. Socorro Indep. School Dist., 329 F.3d 409, 415 (5th Cir. 2003).
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
"Under the McDonnell Douglas framework, the parties dance an adversarial three-step, in which: (1) plaintiff proves his prima facie case by a preponderance of the evidence; (2) the defendant rebuts the presumption of intentional discrimination . . . by articulating legitimate, non-discriminatory reasons for the challenged action; and (3) the plaintiff counters by offering evidence that the legitimate, non-discriminatory reasons are really a pretext for discrimination."
Rutherford v. Harris County Texas, 197 F.3d 173, 180 (5th Cir. 1999) ( quoting Casarez v. Burlington Northern/Santa Fe, 193 F.3d 334, 337 (5th Cir. 1999)).
Construing the complaint liberally, as this Court must, the plaintiff appears to be raising a disparate treatment claim under Title VII, including within the ambit of disparate treatment his being written-up, taken by the arm and guided to his workstation and thereafter discharged. The plaintiff's argument is that the defendants have narrowly construed the term "disparate treatment" and explains his claim in this regard as follows:
What occurred was that two black female dealers were treated far differently than the Plaintiff who is a white male jew dealer.
It can be said that the two black female dealers "blew the whistle" on the Plaintiff by alleging that Plaintiff "harassed" them. Defendant conducted a sloppy investigation but an investigation none the less. Defendant did not inform Plaintiff of what the alleged "harassment" consisted of nor did It set forth when (date) or where the alleged incident took place. Plaintiff could hardly defend himself due to the lack of information that he was provided with. Yet, Plaintiff was written up and discharged. Whether the female dealer were probationary or not is not a material fact.
When Plaintiff complained or "blew the whistle" on illegal activities on the dice table; on harassment by a female supervisor; or Assault Battery by a male supervisor, Defendant did not conduct any investigation or meet with the Plaintiff. The two black female dealers were not written up for making a frivolous complaint and they were not discharged. This constitutes disparate treatment.
Under the "Whistle Blower" statute, discrimination is broadly defined and states that the employer can not discriminate in any way against a whistle blower. Plaintiff, under the Whistle Blower "statute" has been discriminated against because of being a whistle blower. Defendant has retaliated against Plaintiff by giving him a frivolous write up and discharging him.
See Plaintiff's Response to Defendant's Argument That the Plaintiff Failed to Establish the Fourth Prong of his Prima Facie Case of Disparate Treatment filed September 21, 2004 [Rec. Doc. No. 47].
In order to establish a prima facie case of discrimination based on race, gender or religion under the McDonnell Douglas framework, a plaintiff must show that (1) he was a member of a protected group, (2) he was qualified for the position he held, (3) he suffered an adverse employment action and (4) non-members of the protected class, who were similarly situated, were treated more favorably under nearly identical circumstances.
Okoye v. University of Tex. Houston Health Science Center, 245 F.3d 507, 512-13 (5th Cir. 2001); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).
The defendants do not dispute that the plaintiff is a Jewish white male and, in that regard, may satisfy the first prong of his prima facie case under Title VII. It is apparent from the pleadings that the plaintiff is utilizing the allegation that he is Jewish to justify his claim that he is a member of a "protected group." The defendant further assumes for the purposes of the motion for summary judgment that the plaintiff was qualified for his position as a probationary employee. Additionally, the parties do not dispute that the plaintiff was written-up for certain conduct, counseled and then discharged. With the exception of termination, the balance of the plaintiff's complaints do not constitute actionable adverse employment decisions. Where, as here, the plaintiff does not allege severe or pervasive harassment in the workplace, actionable adverse employment actions for purposes of Title VII are generally limited to tangible employment actions, such as hiring, firing, reassignment and/or other significant changes in employment status. Nevertheless, the third prong of plaintiff's prima facie case has been satisfied under Title VII in that the plaintiff was terminated.
Watts v. Kroger, Co., 170 F.3d 505, 510 (5th Cir. 1999).
As to the fourth prong of his prima facie case, Schildkraut does not allege that any similarly situated employee engaged in or was disciplined for the same conduct for which he was terminated. Moreover, the plaintiff does not cite circumstances that were nearly identical to his. In this regard, it is important to note that Schildkraut was a probationary employee. The plaintiff argues that whether or not the two female black dealers were probationary employees is not a material fact. This Court disagrees and finds that, based upon the applicable law, the plaintiff bears the burden of demonstrating that these employees were similarly situated ( i.e., probationary employees) and were treated more favorably under nearly identical circumstances.
See Plaintiff's Response to Defendant's Argument That the Plaintiff Failed to Establish the Fourth Prong of his Prima Facie Case of Disparate Treatment filed September 21, 2004 [Rec. Doc. No. 47].
It is also noteworthy that, during the entirety of his probationary period of employment until he was terminated, the plaintiff never once complained of discrimination, either on the basis of his race (white), sex (male) or religion (Jewish). A review of all of the plaintiff's submissions and argument reveals that he does not articulate any specific examples of any remarks or references by his superiors or co-employees indicating race, gender or religion-based animus. An employee's "bald assertions of [race, religion or gender] discrimination are inadequate to permit a finding that proscribed discrimination motivated" an employer's conduct.
Ray v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir. 1995).
Liberally construing the plaintiff's complaint, it also appears that the plaintiff has attempted to bring a retaliation cause of action, distinct from his disparate treatment cause of action. In order to do so under Title VII, a plaintiff must first demonstrate that he engaged in activity protected by Title VII and that thereafter an adverse employment action occurred. The plaintiff took part in no grievance procedures preliminary to his discharge. The incidents which led to his termination occurred within less than a twenty-four hour time frame. While plaintiff's termination is certainly an adverse employment action, thereby meeting the second element of his prima facie case of retaliatory discharge, there is no evidence establishing the predicate EEO activity (the first element), much less a causal connection between such protected EEO activity and his termination (the third element).
See Fierros, 274 F.3d at 191.
To establish a prima facie case of retaliation under Title VII, a plaintiff must show all three elements, to wit: (1) that he participated in statutorily protected activity as described in Title VII; (2) an adverse employment action occurred; and (3) a causal connection exists between the protected activity and the adverse action. The ultimate determination in an unlawful retaliation case is whether the conduct protected by Title VII was a "but for" cause of the adverse employment decision. The plaintiff has failed to state a prima facie case of retaliatory discharge under Title VII; therefore, the plaintiff cannot adduce evidence that would permit a reasonable trier of fact to infer retaliation under Title VII. Schildkraut identifies no requisite protected EEO activity. The plaintiff has not satisfied his burden of production, which requires him to "designate specific facts in the record showing that there is a genuine need for trial."
See Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 519 (5th Cir. 2001).
See Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th Cir. 1996).
Lawrence v. University of Tex. Medical Branch at Galveston, 163 F.3d 309, 311-12 (5th Cir. 1999).
Summary judgment is warranted with respect to the plaintiff's Title VII claims of intentional discrimination and/or retaliation on the basis of his race (white), gender (male) and religion (Jewish). The main purpose of Title VII is to assure equality of employment opportunities and to eliminate discriminatory practices and devices that foster stratified job environments to the disadvantage of minority citizens. Title VII does not guarantee employment to everyone, nor did Congress authorize federal courts to address and remedy every form of unfair, arbitrary, petty or even unlawful action by employers against prospective, existing or former employees. Congress established a comprehensive regulatory scheme administered by the EEOC to promote the aforesaid limited objective with which private litigants, however disadvantaged, must comply. Even accepting all of the plaintiff's factual allegations as true, it is difficult, if not impossible, to discern unlawful discrimination as a motivating factor in the plaintiff's treatment. Fifth Circuit case law is clear that discrimination suits still require evidence of unlawful discrimination.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973).
See Rubinstein v. Administrators of Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000), cert. denied, 532 U.S. 937 (2001).
B. Discrimination under Louisiana Law
In addition to the absence of a prima facie case, the plaintiff's state law discrimination claim also suffers from a procedural defect. Specifically, Louisiana Revised Statute 23:303(C) provides:
A plaintiff who believes he or she has been discriminated against, and who intends to pursue court action shall give the person who has allegedly discriminated written notice of the fact at least thirty days before initiating court action, shall detail the discrimination, and both parties shall make a good faith effort to resolve the dispute prior to initiating court action.
La.R.S.23:303(C). Compliance with the notice component of this statute requires written notice, within thirty days before filing suit, of the plaintiff's intent to pursue court action and the details of the alleged discrimination. Failure to satisfy this notice requirement, unless the plaintiff has filed a charge of discrimination regarding the same conduct with the EEOC, warrants dismissal without prejudice. Decisions by various federal district courts in Louisiana have interpreted the notice provision at issue and have consistently held that a claim under the statute must be dismissed if the plaintiff failed to comply with the notice provision, "unless the plaintiff filed a charge of discrimination with the EEOC within the appropriate time period, which effectively accomplished the same goals as the statutory notice under state law."
See Parquet v. Universal Health Servs., Inc., 2003 WL 145429 at * 4 (E.D. La.) (Shushan, M.J.); Trahan v. Lowe's, 2002 WL 1560272 at *6 (E.D. La.) (Wilkinson, M.J.); Dunn v. Nextel South Corp., 207 F.Supp.2d 523, 524 (M.D. La. 2002);
See Legania v. East Jefferson Gen'l Hosp. Dist. No. 2, 2003 WL 21277127, at *4-5 (E.D. La.); Dunn, 207 F.Supp.2d at 524.
Trahan v. Lowe's, Inc., 2002 WL 1560272 * 6 (emphasis added). See also Parquet v. Universal Health Servs., Inc., 2003 WL 145429 at * 4 (E.D. La.); McIntire v. Kimberly Clark Corp., 1994 WL 321004, at * 1 (E.D. La. June 28, 1994) (EEOC complaint alleged only discrimination based on age failed to satisfy notice requirements of Louisiana statute).
In his opposition, Schildkraut appears to suggest that because the state case was removed to this Court, defendants waived La.R.S. 23:303(C)'s notice requirement. The Court is not aware of any jurisprudence which indicates that the defendants' removal constitutes waiver of Louisiana's statutory notice requirement. There is no issue of material fact in dispute that Schildkraut failed to comply with terms of Section 23:303(C). The only EEOC charge served upon the defendant ( i.e., EEOC Charge No. 270-2003-02896 [Defendants' Exhibit "B"]), singularly alleges "Other" discrimination, i.e., reprisal or retaliatory discharge because of the plaintiff's alleged "whistle blowing" conduct.
As to the merits, this Court further observes that, like the plaintiff's federal claims discussed above, his claims under Louisiana employment law similarly fail. The Louisiana statute that prohibits discrimination on the basis of religion, inter alia, mirrors Title VII. See La.R.S. § 332(A)(1), (2). Louisiana courts and federal courts routinely look to interpretation of Title VII for guidance in construing Louisiana's anti-discrimination statutes. Therefore, in determining that the plaintiff's discrimination claims based on religion, race and gender are without merit, the Court necessarily construes his mirror-image claims under Louisiana law. As to discrimination on the basis of religion, considering the record as a whole, including the plaintiff's argument at the oral hearing, and all of his post-hearing submissions, there is no suggestion that the plaintiff had a bona fide religious belief that prevented him from performing any aspect of his work as a "dealer" at the casino or that he so informed his employer of any such religious belief or that religious discrimination played any part in any adverse employment decision including the plaintiff's termination. Therefore, summary judgment is warranted dismissing the plaintiff's state law discrimination claims.
See Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998); Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989); McMillon v. Corridan, 1998 WL 560334, at * 2 (E.D. La. Aug. 31, 1998) (Clement, J.); Boudreaux v. Louisiana Casino Cruises, Inc., 762 So.2d 1200, 1204 (La.App. 1st Cir.), cert denied, 772 So.2d 651 (La. 2000).
C. Louisiana's Whistleblower Protection Act
Louisiana's Whistleblower Protection Act, La.R.S. 23:967, provides, in pertinent part:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information or testifies before any public body conducting an investigation, hearing or inquiry into any violation of law.
(3) Objects or refuses to participate in an employment act or practice that is in violation of the law.
The plaintiff has identified no employment act or practice which constitutes a "violation of law," whether state or federal, and thus his claim pursuant to La.R.S. 23:967 must fail as a matter of law. In Puig v. Greater New Orleans Expressway Commission, 772 So.2d 842, 845 (La.App. 5th Cir 2000), the court held that Louisiana's whistleblower statute does require an actual violation of law. See also Ware v. Cleco Power LLC, 2004 WL 1333869 (5th Cir., January 21, 2004); Wells v. Alexandria, 2004 WL 909735 (5th Cir., April 29, 2004).
The alleged "violations of law" or "unlawful" conduct complained of by the plaintiff include the following: (1) co-employees at Bally's hustling bets and tips from players; (2) co-employee Alfred Holly's conduct in grabbing his arm and directing the plaintiff to another blackjack table; (3) co-employee Cheryl Maas' conduct, which consisted of tapping his leg during a meeting; and (4) that Bally's treated two black female employees more favorably than the plaintiff, who is a Jewish white male. Regarding the plaintiff's allegations that he testified before the Gaming Control Board on June 16, 2003, that testimony occurred more than fifteen days after the plaintiff was terminated on May 29, 2003.
The plaintiff's factual allegations, regarding the defendants' employment practices reported to authorities, fail to disclose a violation of state law, which is an essential element of the plaintiff's claim pursuant to La.R.S. 23:967. The prerequisite for filing a claim under La.R.S. 23:967 is clearly that an "employer must have committed a 'violation of state law' for an employee to be protected from reprisal." Because of the absence of proof regarding this essential element, all of the other facts are immaterial.
Barber v. Marine Drilling Management, Inc., 2003 WL 237848 (E.D.La.). See also Puig, 772 So.2d at 844-45.
To the extent that the plaintiff's complaint can be construed as asserting a state law claim for the intentional infliction of emotional distress, there is no support for any such claim. The circumstances which led to the plaintiff's termination occurred during an attenuated time frame, i.e., a period of hours leading up to his termination on May 29, 2003 at 9:30 A.M. The plaintiff was admittedly terminated via telephone call to his home within hours of the few incidents that precipitated the simple, unoffensive instruction to "call it a night" and go home. Thereafter, plaintiff's employer made no attempt to contact him and, admittedly, any and all further contact was at the plaintiff's own instance i.e., attempting to enter the defendants' premises and to contact the defendants' employees and agents. The defendants' actions in secreting its employees from unwanted contact by the plaintiff is not conduct that rises to the level of what may reasonably considered extreme and outrageous, so as to intentionally inflict severe emotional distress upon the plaintiff.
In order to state a claim for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous, (2) that the emotional distress suffered by the plaintiff was severe, and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. The plaintiff's submissions admit one conclusion, i.e., that his former employer sought to completely avoid all personal contact with the plaintiff, even going so far as to terminate his employment via telephone conference. Assuming that all the plaintiff's allegations of fact are true, the record, taken as a whole, could not lead a rational trier of fact to find for the plaintiff on his claim of intentional infliction of emotional distress and thus, there is no genuine issue for trial.
See Nicholas v. Allstate Insurance Co., 765 So.2d 1017, 1022 (La. 2000) ( citing White v. Monsanto, 585 So.2d 1205 (La. 1991).
Accordingly,IT IS ORDERED that the defendants' Motion for Summary Judgment is GRANTED and thus, the plaintiff's consolidated cases must be DISMISSED WITH PREJUDICE in their entirety.