Opinion
Civil Action No. 03-2219 Section "D"(2).
September 29, 2004
ORDER AND REASONS
Plaintiffs, Akesha Singleton ("Akesha") and Kawanta Singleton ("Kawanta"), a married couple, filed this action against their former employer, RPM Pizza, Inc. d/b/a Domino's Pizza ("RPM"). Plaintiffs allege that they were both subjected to race discrimination, a racially hostile work environment and retaliation, and that Akesha was subjected to national origin discrimination, in their employment in violation of 42 U.S.C. § 1981, Title VII, 42 U.S.C. § 2000e et seq., and Louisiana's anti-discrimination statutes. La.Rev.Stat. §§ 23:301 et seq., 51:2231 et seq. Plaintiffs also assert other state law claims that RPM is vicariously liable for defamation, intentional infliction of emotional distress and violation of the Louisiana "whistleblower" statute.
This matter was referred to the undersigned magistrate judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon the written consent of all parties. Record Doc. No. 11.
Defendant filed separate motions for summary judgment as to each plaintiff's claims. Record Doc. Nos. 105, 106. Plaintiffs filed an opposition memorandum to both motions. Record Doc. No. 119.
RPM received leave to file a reply memorandum. Record Doc. No. 128. Plaintiffs received leave to supplement the record to file their complete deposition transcripts and the complete deposition transcript of John Gabriel. Record Doc. No. 129.
Having considered the complaint, as amended; the record; the submissions of the parties and the applicable law; and for the following reasons, IT IS ORDERED that defendant's motions for summary judgment are GRANTED IN PART AND DENIED IN PART, as follows.
ANALYSIS
A. Standard of Review
Summary judgment is appropriate when "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 moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law.Anderson, 477 U.S. at 248; Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). An issue is "genuine" if the evidence is sufficient for a rational trier of fact to return a verdict for the nonmoving party. Id.
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim.National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citing Celotex, 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial."Celotex, 477 U.S. at 323.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; 'the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint."'" Id. at 713 (quoting Anderson, 477 U.S. at 249).
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists."Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; 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." Id. (quotation omitted) (emphasis in original).
B. Akesha's National Origin Claim Is Untimely
Akesha brings her national origin discrimination claim under Title VII, 42 U.S.C. § 1981 and Louisiana Employment Discrimination Law. La.Rev.Stat. § 23:301 et seq.
Akesha filed a timely charge of race discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC") on August 26, 2002. Defendant's Exh. U. On May 16, 2003, Akesha filed a new EEOC "charge of discrimination" bearing the same charge number 207A201825 as the original charge, with the handwritten word "amended" above the charge number. This charge included an allegation of national origin discrimination. Her "amended" charge alleged that Mark Michot, an assistant manager at the Robert Road store where plaintiffs worked, made racist remarks about Hispanics on May 25, 2002. Defendant's Exh. Y. The EEOC issued a right to sue letter and terminated its investigation on June 30, 2003. Defendant's Exh. Z.
Administrative review by the EEOC is usually required before a federal court may review a discrimination complaint brought under Title VII. 42 U.S.C. § 2000e-5(e)(1); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351 (5th Cir. 2001). "In a deferral state like Louisiana where the appellant's lawsuit was filed, a plaintiff must file his charge within 300 days of the complained-of conduct. As a result, the plaintiff must file his charge with the EEOC within 300 days of the alleged discriminatory conduct." Janmeja v. Board of Supervisors, No. 03-30957, 2004 WL 902304, at *2 (5th Cir. Apr. 28, 2004) (citing 42 U.S.C. § 2000e-5(e)(1)) (footnotes omitted).
A deferral state is one in which state law prohibits discrimination in employment and a state agency has been established to grant or seek relief for such discriminatory practice. Clark v. Resistoflex Co., 854 F.2d 762, 765 n. 1 (5th Cir. 1988). The Louisiana Commission on Human Rights has been funded and operating since April 1994, making Louisiana a deferral state since that time. La.Rev.Stat. § 51:2233; G. Guidry, Employment Discrimination Claims in Louisiana, 45 La. B.J. 240, 241 (Oct. 1997); G. Huffman, The Louisiana Commission on Human Rights — Now It's for Real, Briefly Speaking, Spring 1995, at 4 (New Orleans Bar Ass'n).
Akesha thus had 300 days from May 25, 2002, the date that the alleged act of national origin discrimination occurred, to file a charge with the EEOC. She did not file her EEOC charge until May 16, 2003, 356 days after the act occurred. I am aware of no law and have been cited to none by the parties that permits relation back of this "amended" discrimination charge to the earlier date of her first charge alleging race discrimination for timeliness purposes. Therefore, Akesha's Title VII claim of national origin discrimination is time-barred.
Section 1981 does not require any filing with the EEOC. However, Section 1981 incorporates the one-year limitations period imposed by Louisiana Civil Code article 3492 for tortious offenses. Nia Home Health Care, Inc. v. Whitney Nat'l Bank, No. 97-1903, 1998 WL 171522, at *3 (E.D. La. Apr. 9, 1998) (Livaudais, J.) (citing La. Civ. Code art. 3492; Jones v. Orleans Parish Sch. Bd., 688 F.2d 342, 344 (5th Cir. 1982); Doucette v. Barthelemy, 598 So. 2d 600, 602 (La.App. 4th Cir. 1992)). Because Akesha alleges that the act of national origin discrimination occurred on May 25, 2002, she was required to bring suit concerning that claim no later than May 25, 2003, but she did not do so until August 6, 2003. This claim under Section 1981 has prescribed.
Discrimination claims brought under the Louisiana Employment Discrimination Law are also subject to a one-year prescriptive period. La.Rev.Stat. § 23:303(D). However, that "period shall be suspended during the pendency of any administrative review or investigation of the claim conducted by the federal Equal Employment Opportunity Commission or the Louisiana Commission on Human Rights." Id.
As noted above, plaintiff filed her charge of national origin discrimination 356 days after the alleged act occurred, at which point the running of limitations was suspended and plaintiff had nine days left in the one-year prescriptive period. Central Pines Land Co. v. United States, 274 F.3d 881, 896 (5th Cir. 2001); Louviere v. Shell Oil Co., 440 So. 2d 93, 97 n. 8 (La. 1983). The EEOC terminated its investigation of Akesha's complaint on June 30, 2003. She then had nine days, or until July 9, 2003, to file her lawsuit before prescription expired, but she did not do so until August 6, 2003.
Accordingly, plaintiff's claim of national origin discrimination under the Louisiana Employment Discrimination Law has prescribed.
Because Akesha's claim of national origin discrimination is time-barred under Title VII, Section 1981 and the Louisiana Employment Discrimination Law, RPM is entitled to summary judgment on this claim as a matter of law.
C. Plaintiffs' Defamation Claims Have Prescribed
RPM argues that plaintiffs' defamation claims are barred by prescription. Plaintiffs did not respond to this argument in their opposition memorandum but merely adopted the arguments they had made in response to defendant's prior motion to dismiss, in which they argued that their intentional infliction of emotional distress claims allege a continuing tort.
Defendant's argument has merit. "Defamation is an invasion of a person's interest in his reputation and good name. . . . 'Defamatory words' are 'those which tend to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating with him.'" Barber v. Marine Drilling Mgmt., Inc., No. 01-1986, 2002 WL 237848, at *6 (E.D. La. Feb. 15, 2002) (Porteous, J.) (citing Sassone v. Elder, 626 So. 2d 345, 350 (La. 1993); and quoting Sommer v. State Dep't of Trans. and Dev., 758 So. 2d 923, 939 (La.App. 4th Cir. 2000)). Whether words are defamatory is a question of law for the court to decide. Id. at *7; Bell v. Roddy, 646 So. 2d 967, 972 (La.App. 1st Cir. 1994).
The only plainly defamatory statement was Michot's first statement about Akesha, which implied that she might steal from her employer. See Cangelosi v. Schwegmann Bros. Giant Super Mkts., 390 So.2d 196, 198 (La. 1980) ("words which impute a crime to another are defamatory per se"). That statement was made in April 2002. The other racist statements, which might be considered defamatory, were Michot's second statement in response to Kawanta's hiring in April or May 2002; the "porch monkey" comment on August 2, 2002, complete transcript of Akesha deposition, at p. 440; and Michot's racist remarks about Hispanic people on May 25, 2002. Plaintiffs have not identified any defamatory comments that occurred after August 2, 2002.
Plaintiffs did not file suit until August 6, 2003. Thus, their defamation claims based on these and any other allegedly defamatory statements made before August 6, 2002 have prescribed under Louisiana's one-year prescriptive period for torts. La. Civ. Code art. 3492; Pinner v. Schmidt, 805 F.2d 1258, 1264 (5th Cir. 1986); Lopinto v. Blue Ridge Ins. Co., No. 94-113, 1994 WL 543628 (E.D. La. Oct. 3, 1994) (Carr, J.).
Accordingly, RPM is entitled to summary judgment on plaintiffs' defamation claims as a matter of law.
D. Plaintiffs' Intentional Infliction of Emotional Distress Claims
RPM argues that plaintiffs' intentional infliction of emotional distress claims are also barred by the one-year prescriptive period because the claims are based on actions that occurredbefore August 6, 2002. La. Civ. Code art. 3492; King, 743 So. 2d at 187. Plaintiffs did not respond to this argument in their opposition memorandum except to adopt their prior opposition to defendant's motion to dismiss, in which they argued that their intentional infliction of emotional distress claims allege a continuing tort.
The Louisiana Supreme Court has ruled that "a pattern of on-going, repeated harassment which gradually caused [plaintiff] serious emotional injury" sufficient to constitute intentional infliction of emotional distress is actionable as a continuous tort, and that "prescription does not run until such continuous conduct is abated." Bustamento v. Tucker, 607 So. 2d 532, 538-39 (La. 1992).
Genuine issues of material fact are in dispute in the instant case whether the alleged acts of discrimination, harassment and retaliation against each plaintiff constitute continuing torts such that prescription did not begin to run on their intentional infliction of emotional distress claims until (at the latest) each plaintiff left defendant's employ. Accordingly, defendant's motions for summary judgment on the grounds of prescription are DENIED.
RPM also argues that plaintiffs cannot meet their burden of proof on the merits of their intentional infliction of emotional distress claims. Genuine issues of material fact remain in dispute whether racist statements made by employees at the Robert Road store, the reductions in hours for both plaintiffs, the alleged constructive discharge of Akesha in November 2002, the termination of Kawanta in December 2002 and the ongoing racist codes in the store's computer rise to the level of intentional infliction of emotional distress. Therefore, defendant's motion for summary judgment is DENIED as to plaintiffs' claims of intentional infliction of emotional distress.
E. Plaintiffs' Claims for Whistleblower Violations
Plaintiffs assert a claim under the Louisiana "whistleblower" statute, La.Rev.Stat. § 23:967. RPM argues that these claims have prescribed under Louisiana's one-year prescriptive period, which applies to this statutory cause of action. La. Civ. Code art. 3492; Langley v. Pinkerton's Inc., 220 F. Supp. 2d 575, 581 (W.D. La. 2002) (Parker, J.) (citing Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 790 So. 2d 725, 733 (La.App. 5th Cir. 2001)). Nothing in the statute indicates that prescription is suspended during any administrative review or investigation. Id.
The Louisiana statute provides a private cause of action for damages if the employer violates the following section:
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 to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
La.Rev.Stat. § 23:967(A). For the purposes of this statute, reprisal "includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section." Id. § 23:967(C)(1).
Plaintiffs allege that they threatened to expose and refused to participate in violations of state law by RPM, including overcharging Hispanic customers and using racial coding to provide discriminatory service to African-American customers, as a result of which RPM retaliated against them by reducing their hours and constructively or actually discharging them on November 8, 2002 (Akesha) and December 14, 2002 (Kawanta).
I have located no decision in which a court has yet addressed whether the continuing tort or continuing violation doctrine might apply to violations of La.Rev.Stat. § 23:967. To the extent that plaintiffs have alleged a pattern of on-going, repeated reprisal under the statute, I see no reason why the continuing violation doctrine might not apply, such that prescription did not begin to run on their whistleblower claims until each plaintiff left defendant's employ. Accordingly, defendant's motions for summary judgment on the grounds of prescription are DENIED.
RPM argues alternatively that plaintiffs cannot produce sufficient evidence to establish a violation of the whistleblower statute. As discussed below, genuine issues of material fact remain in dispute whether plaintiffs experienced retaliation. Accordingly, defendant's motion for summary judgment is DENIED as to plaintiffs' claim of violations of the Louisiana "whistleblower" statute.
F. Plaintiffs' Discrimination Claims
Plaintiffs allege that they were victims of race discrimination, a racially hostile work environment and retaliation while working at RPM. RPM argues that neither plaintiff can establish a prima facie case of discrimination, hostile environment or retaliation. Alternatively, RPM contends that Akesha was not constructively discharged and that neither plaintiff has sufficient evidence to rebut defendant's proffered legitimate nondiscriminatory reasons for its actions in reducing their hours and terminating Kawanta's employment. RPM also contends that it can prove its affirmative defense to plaintiffs' hostile environment claims under Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
The evidentiary materials submitted by defendants, coupled with the affidavits of the two plaintiffs and the deposition testimony of the two plaintiffs and John Gabriel, establish that genuine issues of material fact are in dispute in the instant case, including but not limited to whether racist statements made by employees at the Robert Road store were pervasive and continuous; whether the racist statements, combined with the racially derogatory codes entered into and not removed from the computer, created an actionable hostile working environment; whether the racially derogatory codes were pervasive and the extent of plaintiffs' exposure to them; whether RPM exercised reasonable care to prevent and correct promptly any racially harassing behavior, including the codes in the computer; whether plaintiffs unreasonably failed to take advantage of any preventive or corrective opportunities provided by RPM; whether RPM had legitimate, discriminatory or retaliatory motives for reducing plaintiffs' hours, suspending them and/or terminating Kawanta's employment; and whether Akesha's working conditions were so intolerable that a reasonable employee would have felt compelled to resign.
In addition, David Ashker, former manager at the Robert Road store, states in his affidavit that Kawanta failed to show up for scheduled shifts over a period of time after Ashker became store manager. Ashker says that Kawanta was counseled continuously and given numerous opportunities to adhere to the schedule. When Kawanta allegedly had not improved after several weeks, Ashker began scheduling Kawanta for fewer shifts. Ashker states that Kawanta was "effectively terminated" when he failed to show up for two scheduled shifts. Defendant's Exh. S, affidavit of David K. Ashker. Kawanta asserts in his affidavit that he missed no shifts and received no such counseling. Plaintiff's Exh. 2, affidavit of Kawanta Singleton. This is clearly a genuine, material, triable, disputed fact. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (a trier of fact may infer the ultimate fact of discrimination from the falsity of the employer's explanation combined with plaintiff's establishment of a prima facie case).
Accordingly, RPM's motions for summary judgment on these claims are DENIED.
G. Plaintiffs' Claims for Punitive Damages
RPM argues that plaintiffs are not entitled to punitive damages as a matter of law on their federal discrimination and retaliation claims. Genuine issues of material fact are in dispute whether RPM's agents acted with malice or reckless indifference to plaintiffs' federally protected rights, including whether RPM failed to discipline Michot promptly or appropriately concerning his racist remarks and whether it made reasonable and prompt efforts to delete the racist codes from the computer and to prevent its employees from continuing to input such codes. Accordingly, defendant's motions for summary judgment are DENIED as to plaintiffs' claim for punitive damages.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's motions for summary judgment are GRANTED IN PART AND DENIED IN PART, as follows.
Defendant's motion for summary judgment as to Akesha Singleton is GRANTED IN PART and Akesha Singleton's claims of national origin discrimination under Title VII, 42 U.S.C. § 1981 and Louisiana Employment Discrimination Law are DISMISSED WITH PREJUDICE as untimely.
Both motions for summary judgment are GRANTED IN PART and plaintiffs' claims of defamation are DISMISSED WITH PREJUDICE as prescribed.
The remainder of defendant's motions for summary judgment are DENIED.
Trial will proceed before a jury as scheduled on October 4, 2004. Counsel should be prepared in accordance with the court's pretrial notice.