Opinion
CIVIL ACTION NO: 03-394 SECTION: "R"(4)
January 9, 2004
ORDER AND REASONS
Defendants Southwest Airlines, Johnnie Bazemore, and Brandi Roy move the Court for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff Frederick Aronzon has not filed an opposition to the motions. For the following reasons, the Court GRANTS defendants' motions.
I. BACKGROUND
Southwest Airlines hired plaintiff Frederick Aronzon in March 2001 as a Provisioning Agent at its Los Angeles facility. Defendant Johnnie Bazemore participated in the interview and the hiring of plaintiff. Approximately six months after plaintiff began work, Bazemore received a promotion to Provisioning Manager at the Louis Armstrong International Airport in New Orleans. Aronzon, originally from the New Orleans area, sought a promotion to Provisioning Supervisor under Bazemore. Southwest promoted Aronzon, and he transferred to New Orleans.
In September 2001, Aronzon signed a lease on an apartment in New Orleans with his then-girlfriend, defendant Brandi Roy, a Southwest Airlines flight attendant. Aronzon then began his work as Provisioning Supervisor at Armstrong International in October 2001.
According to Southwest, from November 2001 through the time of his termination in January 2002, plaintiff's work performance was sub-par. Aronzon received numerous counseling notices-constructive criticism from a supervising officer — from Bazemore. The counseling notices criticized Aronzon's inability to track time correctly and to communicate respectfully with co-employees. ( See Def. Southwest Airlines' Mot. Summ. J., Ex. B, Exs. 13-17). The notices also detailed the time that he spent on the computer and his alleged damaging of a company van. ( See id.)
In late December 2001, Bazemore received a telephone call from Roy, who informed him that Aronzon had stolen property from Southwest. Roy informed Bazemore that she had seen a variety of Southwest merchandise in the apartment that she shared with Aronzon. Bazemore notified his immediate superiors, who directed him to contact Paul Patton, a corporate security specialist for Southwest. ( See Def.'s Ex. A, at 2). Patton then notified the New Orleans Police Department of Southwest's suspicion of theft.
Officers of the NOPD obtained a search warrant and searched the premises shared by Aronzon and Roy. Bazemore accompanied the police officers to the apartment to identify the allegedly stolen property, but he did not participate in the search. The officers found a variety of Southwest merchandise at the apartment and issued a summons to plaintiff to appear in municipal court for violations of the New Orleans City Code provision prohibiting possession of stolen property. The city attorney's office decided not to proceed on the charges and nolle prossed them in January 2002.
Several days before the City did so, Bazemore instructed Aronzon to come to work. Plaintiff refused. Bazemore terminated Aronzon on January 2, 2002. His stated reasons were Aronzon's poor work performance and his alleged misappropriation of company property.
In December 2002, Aronzon sued defendants in the 24th Judicial District Court for the Parish of Jefferson. Plaintiff asserts numerous causes of action for employment discrimination, wrongful arrest, malicious prosecution, defamation, intentional infliction of emotional distress, and conspiracy to defame. In February 2003, defendants removed the suit to this Court. Defendants ground jurisdiction on 28 U.S.C. § 1332, alleging that the parties are completely diverse. Defendants Southwest, Bazemore, and Roy now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff has filed no response to the motion.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; See also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. Analysis
a. The Employment Discrimination Claims: Southwest
In his complaint, plaintiff, a white male, alleges that Southwest (1) denied him a promotion; (2) denied him a favorable schedule; and (3) terminated him, all on account of his race. Plaintiff identifies no statutory basis for his claims of employment discrimination. Pursuant to federal law, plaintiff may assert a Title VII discrimination claim under 42 U.S.C. § 2000e, et seq., which exposes an employer to liability for unlawful employment practices based on race, color, or national origin. See 42 U.S.C. § 2000e-2. Pursuant to state law, plaintiff may also assert an employment discrimination claim under the Louisiana Employment Discrimination Law. See LA.REV.STAT. § 23:301, et seq.
(i) Title VII
The Court first finds that plaintiff is barred from pursuing a federal Title VII employment discrimination claim for all three employment discrimination claims. Pursuant to 42 U.S.C. § 2000e-5(e)(1), a plaintiff may commence a civil action in federal court under Title VII only after he has filed a charge with the Equal Employment Opportunity Commission within 180 days of the alleged unlawful act, or within 300 days of the act if the plaintiff first files with a state or local agency. See 42 U.S.C. § 2000e-5(e)(1); Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996). In short, defendant argues that plaintiff has failed to exhaust his administrative remedies before suing in federal court on his employment discrimination claims.
Plaintiff alleges that Southwest denied him a promotion on account of his race. ( See Def.'s Ex. B, at 43). Specifically, plaintiff claims that Southwest denied him a promotion to Provisioning Supervisor while he was at the Los Angeles facility. ( See id.). This denial occurred before October 2001, when Aronzon began to work in New Orleans. Also, Southwest terminated Aronzon on January 2, 2002. Moreover, plaintiff's unfavorable scheduling must have occurred before his January 2, 2002 termination. Assuming, arguendo, that Aronzon could have filed a complaint with a state or local agency, these allegedly unlawful employment actions occurred well over 300 days before plaintiff sued, on December 27, 2002. There is no evidence in the record that plaintiff ever filed a charge with the EEOC or an appropriate state agency. Therefore, defendants are entitled to summary judgment on any federal Title VII claim because plaintiff failed to exhaust administrative remedies and is now time-barred from pursuing such remedies before the EEOC or in federal court. See 42 U.S.C. § 2000e-5(e)(1).
(ii) Louisiana Employment Discrimination Act
Plaintiff may also state a claim under the Louisiana Employment Discrimination Act, La.R.S. 23:301, et seq., which exposes an employer to liability for unlawful employment practices. See LA.REV.STAT. § 23:332. Here again, the Court finds that plaintiff's discrimination claim for denial of a promotion is time-barred. Employment discrimination claims brought under the LEDA are subject to a prescriptive period of one year. See LA. CIV. CODE art. 3492; King v. Phelps Dunbar, L.L.P., 743 So.2d 181, 187 (La. 1999). The one-year liberative prescriptive period begins to run on the day injury or damage is sustained. See LA. CIV. CODE art. 3492; King, 743 So.2d at 187. As recognized by the Fifth Circuit, a failure to promote is a discrete act for which the prescriptive period begins to run on the date the employer denies the promotion. Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 352 (5th Cir. 2001); See also Davis v. Hibernia Bank, 732 So.2d 61, 65 (La.Ct.App. 1999) (upholding exception of prescription because plaintiff did not file suit within one year of denial of promotion). As noted above, plaintiff complains of the denial of a promotion when he worked in Los Angeles, before he started to work at Louis Armstrong International in October 2001. Plaintiff would therefore have had until no later than October 2002 to sue on this claim. Plaintiff sued in state court on December 27, 2002. Plaintiff's claim for discrimination in promotion is therefore time-barred under the LEDA.
The only claims that remain are plaintiff's termination and unfavorable schedule claims. Louisiana courts analyze disparate treatment cases under the test developed for Title VII plaintiffs in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Labove v. Raftery, 802 So.2d 566, 573 (La. 2001). "The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." Green, 411 U.S. at 802. The plaintiff may establish a case of prima facie discrimination by showing (1) that he belongs to a protected class; (2) that he was qualified for the job for which his employer suspended or terminated him; (3) that, despite his qualifications, he was terminated; and (4) that, after his termination, the employer hired a person not in plaintiff's protected class, or retained those, having comparable or lesser qualifications. See Johnson v. Louisiana, 351 F.3d 616, 621 n. 6 (5th Cir. 2003) (quoting McDonnell Douglas, 411 U.S. at 802); R.L. Carpenter v. Gulf States Mfrs., Inc., 764 F. Supp. 427 If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant to produce evidence that "the adverse employment actions were taken 'for a legitimate, nondiscriminatory reason.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). The defendant must state, "through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that the unlawful discrimination was not the cause of the employment action." id. at 507 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)) (emphasis in original.) Here, the Court finds that plaintiff has failed to establish a prima facie case of racial discrimination with regard to either claim.
As to his termination claim, plaintiff produced no evidence that after he was terminated, Southwest hired a person not in plaintiff's protected class, or retained such a person, who had comparable or lesser qualifications. Even if plaintiff were to establish a prima facie case of racial discrimination, defendant has presented sufficient unrefuted evidence to demonstrate that Southwest and Bazemore terminated Aronzon for a legitimate, nondiscriminatory reason. Defendant presents evidence that it cited Aronzon numerous times for incorrectly logging his time, for failing to turn in his time sheets, and for failing to deal diplomatically with fellow employees. ( See Def.'s Ex. B, Exs. 13-16). In addition, defendant presents the Court with Bazemore's letter terminating Aronzon. ( See Def.'s Appx. A). This letter also cites Aronzon's failure to report an incident concerning damage to a company van and, more importantly, the alleged misappropriation of Southwest property as a basis for his termination. ( See id.). The Court finds that defendant has set forth sufficient unrebutted evidence to establish that its decision to terminate plaintiff was based on a legitimate, non-discriminatory reason.
The Court notes that Aronzon, a white male, may pursue a Title VII termination claim. The Fifth Circuit has liberally construed the "protected class" requirement. In Byers v. Dallas Morning News, Inc., the Fifth Circuit stated that " [a]n employer's decision to terminate an individuals employment violates Title VII when that decision was based on race, whether that race be white or black." 209 F.3d 419, 425 (5th Cir. 2000) (citing McDonald v. Santa Fe Transp. Co., 427 U.S. 273 (1976)).
Further, plaintiff could not point to any racial motivation for his termination at his deposition. Indeed, the only allegedly racially motivated conduct that plaintiff recalls is a certain camaraderie among the African-American employees that he did not share and an incident involving alleged comments that the "white guys" didn't know how Southwest operations "were run." (Def.'s Ex. B, at 39). Plaintiff also recalls racially motivated jokes concerning food. (Def.'s Ex. B, at 41). Plaintiff does not allege that any of these alleged racially motivated actions influenced Southwest's or Bazemore's decision to fire him.
As to his unfavorable schedule claim, the Court finds that such a claim does not exist in this Circuit. In Watts v. The Kroger Co., the Fifth Circuit held that "[s]imply changing one's work schedule is not a change in [plaintiff's] employment status." 170 F.3d 505, 510 (1999). Since the changing of plaintiff's work schedule is not a change in plaintiff's employment status, it is not actionable under Title VII. See id. Even were the Court to find a viable cause of action for an unfavorable schedule, however, the Court notes that plaintiff freely admitted at his deposition that race was not a factor in his scheduling:
As noted above, Louisiana looks to federal law to decide employment discrimination cases. Johnson, 351 F.3d at 619 n. 1 (citing Plummer v. Marriott Corp., 654 So.2d 843, 848 (La.Ct.App. 1995)).
Q. What schedule were you on when you were in New Orleans?
A. They varied. They varied from the morning to the afternoon to the evening, and it would be on a rotation.
Q. And this was based on seniority?
A. Yes.
(Def.'s Ex. B, at 43).
For the foregoing reasons, Southwest is entitled to summary judgment on all employment discrimination claims.
(iii) Bazemore and Roy
Bazemore are Roy are also entitled to summary judgment on all discrimination claims. Under federal law, plaintiff may not maintain an action against either Bazemore or Roy under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., because the Fifth Circuit does not recognize liability for employees under Title VII. See Smith v. Amedisys, Inc., 298 F.3d 434, 448 (5th Cir. 2002); Grant v. Lone Star Co., 21 F.3d 649, 651 (5th Cir. 1994).
Neither does LEDA provide a cause of action against a co-employee or a supervisor. LEDA's provisions apply only to "employers" as defined in Chapter 23. See LA.REV.STAT. §§ 23:312, :323, :332. Under Louisiana law,
'[e]mployer' means a person, association, legal or commercial entity, the state, or any state agency, board commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.
LA.REV.STAT. § 23:302(2) (emphasis added). Based on the clear language of the statute and both federal and state case law, the Louisiana employment discrimination laws do not expose co-employees or supervisors to liability. See, e.g., Johnson v. Integrated Health Servs., Inc., No. Civ. A. 01-2075, 2002 WL 31246762 (E.D. La. 2002) ("Nor is [defendant] liable under the Louisiana anti-discrimination statute . . . which also exposes to liability 'employers,' but not individual employees."); Hammond v. Medical Arts Group, Inc., 574 So.2d 521 (La.Ct.App. 1991) (holding that physician not employer under definition of § 23:302(2)). In addition, plaintiff makes no claim that he ever received compensation from either Bazemore or Roy. Accordingly, Bazemore, as plaintiff's supervisor, and Roy, as plaintiff's co-employee, are entitled to summary judgment on all employment discrimination claims.
b. Intentional Infliction of Emotional Distress
To prevail on a claim of intentional infliction of emotional distress under Louisiana law, plaintiff must prove "(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." White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). Extreme and outrageous conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." id. "Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." id.
Nothing in the record indicates that Southwest, Bazemore, or Roy engaged in such extreme and outrageous conduct. Moreover, with regard to Bazemore, plaintiff admitted that Bazemore never acted outrageously to him:
Q. Did Johnnie Bazemore, while you were in New Orleans, publicly criticize or berate you?
A. There were jokes that I would hear, but not from him directly to me, but through some of the other provisioning agents, yes.
Q. So you were saying that you never heard Johnnie Bazemore publicly berate you or ridicule you?
A. No, but — no. No.
Q. But other people told you that he had said things that berated you and ridiculed you?
A. Not me personally, not me personally . . .
( See Def.'s Ex. B, at 35-36). In addition, nothing in the record indicates that the alleged emotional distress inflicted upon plaintiff was severe. A review of the Louisiana jurisprudence indicates that "severe emotional distress" may be found "where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case." Magee v. Pittman, 761 So.2d 731, 752 (La.Ct.App. 2000); Norred v. Radisson Hotel Corp., 665 So.2d 753, 756 (La.Ct.App. 1995). "A non-exhaustive list of examples of serious emotional distress includes neuroses, psychoses, chronic depression, phobia, and shock." Norred, 665 So.2d at 756.
There is nothing in the record that indicates that plaintiff suffered from severe emotional distress. Indeed, plaintiff freely admitted that he never saw a medical care provider while he worked for Southwest, nor has he seen one since his termination. ( See Def.'s Ex. B, at 46-47). Although the courts do not require evidence that a plaintiff visited a doctor to sustain a cause of action for intentional infliction of emotional distress, the Court finds that plaintiff's failure to seek any type of medical treatment supports defendant's proposition that the distress was not severe. The Louisiana Supreme Court has noted that "disciplinary action and conflict in a . . . workplace environment, although calculated to cause some degree of mental anguish, is not ordinarily" extreme or outrageous. White, 585 So.2d at 1210. This statement aptly describes the situation here. Accordingly, Southwest, Bazemore, and Roy are entitled to summary judgment on this claim.
c. Defamation
To prevail on a claim of defamation, plaintiff must establish "(1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury." Cangelosi v. Schwegman Bros. Giant Super Mkts., 390 So.2d 196, 198 (La. 1980). "It is well established in Louisiana jurisprudence that a plaintiff must prove all five of these essential elements in order to prevail in an action for defamation." Baudoin v. Louisiana Power Light Co., 540 So.2d 1283, 1287 (La.Ct.App. 1989) (Bowes, J., concurring) (emphasis in original) (citing Health Unlimited v. Loyola Univ., 434 So.2d 133 (La.Ct.App. 1983)).
Here, plaintiff asserts that both Bazemore and Roy defamed plaintiff by falsely accusing him of theft of Southwest property. The dispositive issue here is whether plaintiff will be able to establish malice, actual or implied. The burden of proving malice or lack of good faith rests on the plaintiff. See Rouly v. Enserch Corp., 835 F.2d 1127, 1130 (5th Cir. 1988) (applying Louisiana law). When the words are defamatory per se — as they are here because they accuse plaintiff of a crime — "falsity and malice are presumed and the burden shifts to the defendant to rebut the presumption." Wright v. Dollar Gen. Corp., 602 So.2d 772, 775 (La.Ct.App. 1992). Good faith or lack of malice means that "the person making the statement must have reasonable grounds for believing that it is true and he must honestly believe that it is a correct statement." Rouly, 835 F.2d at 1130.
Even if the communication is defamatory per se the communication at issue here may still enjoy a conditional or qualified privilege. See Henderson v. Guillory, 546 So.2d 244, 248 (La.Ct.App. 1989). Even if the plaintiff establishes a prima facie case of defamation, there can be no recovery if defendant shows that its statement is protected by a qualified privilege. See Doe v. Grant, 839 So.2d 408, 416 (La.Ct.App. 2003). A qualified privilege will extend to "[i]nternal communications by employees to superiors regarding work related matters, particularly the job performance of any employee, . . . when made in good faith to the proper parties." Carter v. Catfish Cabin, 316 So.2d 517, 523 (La.Ct.App. 1975). The communication must be "made in good faith, on any subject matter in which the person communicating has an interest of in reference to which he has a duty, to a person having a corresponding interest or duty." Henderson, 546 So.2d at 248.
The Court finds that defendants have adequately rebutted the presumption of malice or lack of good faith and established that the communications here are protected by a qualified privilege. There is no evidence that either Bazemore or Roy acted with malice. Indeed, the record reflects that both defendants believed that their accusations were true, and each defendant properly communicated the allegation to the appropriate authority. Roy informed only Bazemore about the corporate property at the house that she shared with Aronzon. ( See Def.'s Ex. A, at 2). Bazemore informed his superiors and Paul Pattern, the security specialist, whose duty it was to investigate these matters. ( See id.). There is no evidence that either Bazemore or Roy viciously spread defamatory rumors concerning plaintiff's alleged misappropriation of Southwest property. Based on the unrebutted evidence before the Court, the Court finds that both Bazemore and Roy had reasonable grounds to believe that Aronzon had misappropriated Southwest property.
Neither is Southwest liable for defamation. Louisiana law clearly holds that the qualified privilege operates to "protect from liability for defamation an employer investigating suspected wrongdoing even though third persons become aware of the investigation and the subsequent discharge of the employee." Wright, 602 So.2d at 775 (holding that statement made to police by employer's security investigator concerning employee's alleged theft protected by qualified privilege). Louisiana law protects Southwest's statements made during the investigation of Aronzon's alleged misappropriation of its property.
For the foregoing reasons, the Court finds that defendants are entitled to summary judgment on the defamation cause of action.
d. Malicious Prosecution
To state a claim for malicious prosecution, a plaintiff must prove: "(1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff." Jones v. Soileau, 448 So.2d 1268, 1271 (La. 1984).
As noted by the Louisiana court of appeal in Jones v. Wesley, "the findings of reasonable grounds and honest belief" in a defamation cause of action "is fatal to plaintiff's claim for malicious prosecution" because he can prove neither element four or five. 424 So.2d 1109, 1112 (La.Ct.App. 1982). Because the Court has held that plaintiff has not established malice on the part of defendants to sustain the defamation cause of action, plaintiff cannot establish malice for purposes of a malicious prosecution claim.
e. Wrongful Arrest
To prevail upon a claim of wrongful arrest, plaintiff must establish that he was unlawfully detained by the police against his will. See Harrison v. State, 721 So.2d 458, 461 (La. 1999). A plaintiff may also bring a claim of wrongful arrest or unlawful detention against a private individual if that person detains or arrests him without authority. Plessy v. Hayes Motor Co., 742 So.2d 934, 938 (La.Ct.App. 1999). Nevertheless, plaintiff may not hold Bazemore or Roy indirectly liable for wrongful arrest for their statements to the police that led to plaintiff's "detention." In Plessy, the Louisiana court of appeal expressly held that an individual's statements to the police that lead to the "wrongful arrest" of a person do not give rise to a claim of false imprisonment or false arrest. 742 So.2d at 938. Nor may plaintiff hold Bazemore liable merely because he was present at the scene. The evidence demonstrates that Bazemore did not participate in the search or in the alleged unlawful detention of plaintiff. ( See Def.'s Ex. A, at 2). Plaintiff cannot therefore establish that Southwest, Bazemore, or Roy unlawfully detained him on the night that the police searched his apartment.
f. Conspiracy to defame
To prevail on a claim of civil conspiracy, plaintiff must prove "that an agreement existed to commit an illegal or tortious act which resulted in the plaintiff's injury." Butz v. Lynch, 710 So.2d 1171, 1174 (La.Ct.App. 1998). The plaintiff must prove "that there was an agreement as to the intended outcome or result." id. The actionable element in a conspiracy claim "is not the conspiracy itself, but rather the tort which the conspirators agreed to perpetrate and which they actually did commit in whole or in part." id.; See also Aranyosi v. Delchamps, Inc., 739 So.2d 911, 917 (La.Ct.App. 1999) (same). If the defendant is innocent of the claims of defamation, there can be no defamation conspiracy. See Aranyosi, 739 So.2d at 917.
As noted above, plaintiff cannot sustain a defamation cause of action. Since he cannot establish the substantive offense, he cannot maintain a cause of action for conspiracy to defame. See id.
III. Conclusion
For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment.