Summary
denying state discrimination claim where plaintiff filed EEOC charge, but failed to notice the defendant under as required by La.R.S. 23:303(C)
Summary of this case from Johnson v. Harrah's Entertainment, Inc.Opinion
CIVIL ACTION NO 02-331, SECTION "C"(1).
January 16, 2003.
ORDER AND REASONS
The parties consented to the trial of this action before a magistrate judge. Rec. doc. 11. On February 6, 2002, the plaintiff, Sharon S. Parquet ("Parquet"), filed a complaint against the defendant, Universal Health Services, Inc. Rec. doc. 1. On March 4, 2002, the complaint, was amended to properly identify her employer, and UHS of New Orleans, Inc. ("UHS") was substituted as the defendant. Rec. doc. 3. On December 17, 2002, UHS filed a motion for summary judgment. For reasons described below UHS' motion is granted.
UHS' motion is captioned as "Defendant's Motion for Partial Summary Judgment" and is described on the docket as a motion for partial summary judgment. UHS' motion requests that the case be dismissed in its entirety.
PLAINTIFF'S ALLEGATIONS
Parquet alleges that her action arises out of: (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; (2) Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621; and (3) state law claims. Rec. doc. 1 at p. 2. Parquet alleges that her employment with UHS was unlawfully terminated on account of her race and age. Id. Parquet alleges she is an African-American female, who was 43 years of age at the time of her termination and was amply qualified for the position from which she was terminated. Id. at pp. 2-3. Parquet avers on information and belief that she was replaced by a younger white employee, who was not as qualified as she. Id. Parquet alleges that UHS: "intentionally embarked on a calculated campaign to harass, provoke and unnerve her due to her race and age culminating in her termination and subsequent emotional . . . suffering. . . ." Id. at p. 3.
UNDISPUTED FACTS
Parquet was employed by UHS for approximately thirteen years from 1988 through October 5, 2001. Exhibit 1 to Rec. doc. 20 and Exhibit 5 to Rec. doc. 22. From August, 1999, through her termination, Parquet was employed as the Registration/PBX Coordinator/Supervisor. Exhibit 1 to Rec. doc. 20. On July 31, 2001 at 3:33 p.m., Parquet sent the following e-mail to a co-worker: "we got major trouble, it is important that you call me immediately about the er cash drawer being empty since may." Exhibit 2 to Rec. doc. 20. For the next hour and half Parquet was a party to numerous e-mail messages concerning the empty cash drawer. For example, at 4:45 p.m. Parquet sent an email that said: "so from the middle of may, up until now, the money was steadily getting less and less, why not inform anybody especially me, this is verrry important." Id. On August 6, 2001, Parquet was placed on probation for sixty days because of the shortage in the cash drawer. Exhibit 3 to Rec. doc. 20. On October 5, 2001, Parquet sent an e-mail to three representatives of UHS, including her supervisor, and said: "effective today October 5, 2001, I hereby resign my position at River Parishes Hospital." Exhibit 4 at Rec. doc. 20. Parquet alleges she was forced to resign.
On November 6, 2001, Parquet completed an EEOC Charge Questionnaire and Charge of Discrimination. Exhibit 5 to Rec. doc. 20 and Exhibit 8 to Rec. doc. 24. On the charge form Parquet did not check the boxes for discrimination based on race and age but did check the box for "other." Parquet stated: "I believe I was discriminated in retaliation for my refusing to accept a less desirable position which I was being requested to transfer into by Stephen East." Parquet's statement of particulars makes no mention of race or age discrimination. Parquet does state that:
During the period from around August of 2001 until my separation, I was subjected to unequal terms and conditions of employment by being verbally harassed, subjected to disciplinary actions and close scrutiny of my work performance. On October 5, 2001 I was forced to resign from my position as Registration Coordinator.
Exhibit 8 to Rec. doc. 24. On November 7, 2001, the day after Parquet made her charge of discrimination, the EEOC sent a dismissal and notice of rights letter stating that: "[t]he facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC." Exhibit 6 to Rec. doc. 20.
STANDARD FOR SUMMARY JUDGMENT
Fed.R.Civ.P. 56 provides in pertinent part that summary judgment will be granted 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." See Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). Lujan v. National Wildlife Federation, 110 S.Ct. 3177, 3189 (1990). To that end, the court must "view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. Ameristar Jet Charter v. Signal Composites, 271 F.3d 624, 626 (5th Cir. 2001). Where the record taken as whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Washington v. Allstate Ins. Co., 901 F.2d 1281 (5th Cir. 1990).
Furthermore, the party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact," but need not negate the elements of the nonmovant's case.Celotex, 106 S.Ct. at 2553; see Lujan, 110 S.Ct. at 3187. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 106 S.Ct. at 2553-54. A dispute over a material fact is genuine, if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Kee v. City of Rowlett Texas, 247 F.3d 206, 210 (5th Cir. 2001).
This burden is not satisfied with "some metaphysical doubt as to the material facts," Matsushita, 106 S.Ct. at 1356, by "conclusory allegations," Lujan, 110 S.Ct. at 3180, by "unsubstantiated assertions," Hopper v. Frank, 16 F.3d 92 (5th Cir. 1994), or by only a "scintilla" of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994). The court resolves factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. The court does not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See Lujan, 110 S.Ct. at 3188. 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." Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993). If the nonmoving party fails to meet this burden, the motion for summary judgment must be granted.
In Fierros v. Texas Dept. of Health, 274 F.3d 187 (5th Cir. 2001), the Fifth Circuit cautioned that summary judgment is not favored in claims of employment discrimination and that the Supreme Court in Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110 (2000), emphasized the paramount role that juries play in Title VII cases, stressing that in evaluating summary judgment evidence, courts must refrain from the making of credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, which are jury functions, not those of a judge. Fierros, 274 F.2d at 190-91.
DISCUSSION
UHS contends that Parquet failed to exhaust her administrative remedies under Title VII and ADEA. UHS argues that Parquet's failure to check the boxes for race and age discrimination on the EEOC Charge Form prevent her from asserting claims for race and age discrimination in this action. Parquet contends that she fulfilled her obligation to exhaust her administrative remedies. It is undisputed that Parquet did not check the race and age discrimination boxes on the Charge Form or refer to facts suggesting race and age discrimination in her statement of particulars. The issue is whether this precludes her from asserting federal claims for race and age discrimination in this proceeding.
The filing of an administrative complaint is ordinarily a jurisdictional prerequisite to a Title VII action. Dollis v. Rubin, 77 F.3d 777, 780 (5th Cir. 1995). A person seeking relief under the ADEA must first file an administrative charge with the EEOC. Julian v. City of Houston, Texas, ___ F.3d ___ (5th Cir. 2002) (2002 WL 31761793, *2). In Dollis the Fifth Circuit held:
A Title VII cause of action maybe based, not only upon the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.77 F.3d at 781 (Citations and quotation marks omitted). InMills v. Wal-Mart Stores Inc., 2002 WL 83644 (E.D.La.) (Barbier, J.), the effect of this rule was described as follows:
[I]f a plaintiff only alleges racial discrimination in her EEOC charge and receives her Right to Sue Notice only based on that charge, she cannot subsequently add a claim of retaliation under Title VII to her later-filed complaint in federal court.Id. at *5.
Parquet did not allege age or race discrimination in her EEOC charge and there is nothing in the charge suggesting age or race discrimination or anything that could be related to such discrimination. To permit Parquet to seek judicial relief for age and race discrimination without first affording the EEOC an opportunity to resolve the issue with UHS administratively would undermine the administrative role in Title VII and ADEA actions.See Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980),cert. denied, 101 S.Ct. 1701. As to Parquet's claims for age and race discrimination, UHS' motion for summary judgment will be granted and those claims shall be dismissed with prejudice.
UHS contends that Parquet's state law claims based upon race and age discrimination should be dismissed with prejudice because she did not comply with La. Rev. Stat. Ann. § 23:303 (2001). Section 303 provides that:
A plaintiff who believes he or she had been discriminated against, and who intends to pursue court action shall give the person who has allegedly discriminated written notice of this fact at least thirty days before initiating court action, shall detail the alleged discrimination, and both parties shall make a good faith effort to resolve the dispute prior to initiating court action.
La. Rev. Stat. Ann. § 23:303C (2001). Parquet does not respond to this argument. In Dunn v. Nextel South Corporation, 207 F. Supp.2d 523 (M.D.La.) (Parker, J.), the court found that plaintiff's failure to comply with Section 303 would result in a dismissal without prejudice. She has submitted no evidence that she gave UHS written notice of her intention to sue for discrimination or that she made a good faith effort with UHS to resolve the dispute prior to initiating this action. UHS' motion for summary judgment as to Parquet's state law claims based on age and race discrimination will be granted and those claims shall be dismissed without prejudice.
UHS contends that, to the extent Parquet's complaint can be construed as asserting a state law claim for the intentional infliction of emotional distress, there is no evidence to support such a claim. In support UHS submitted the affidavit of its chief financial officer, Stephen East, who testified that:
The Hospital's conduct with regard to Plaintiff's employment status, investigation of missing funds, and placement of Plaintiff on probation was done professionally and without any inappropriate language or conduct.
The Hospital did not desire to inflict severe emotional distress, nor did it believe that severe emotional distress would be certain or substantially certain to result from its conduct.
Exhibit 1 to Rec. doc. 20. Parquet submitted an affidavit and testified that: "from March 2001 until October 2001 she was subjected to ridicule, harassment, false accusations of theft and an ongoing pattern of intentional discriminatory conduct by her employer. . . ." Exhibit 5 to Rec. doc. 22.
In Nicholas v. Allstate Insurance Company, 765 So.2d 1017 (La. 2000), the Louisiana Supreme Court, in reliance on its decision in White v. Monsanto, 585 So.2d 1205 (La. 1991), held:
In order to recover 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.765 So.2d at 1022. In Hitt v. Connell, 301 F.3d 240 (5th Cir. 2002), the Fifth Circuit reversed an award for nonpecuniary damages and held:
[W]e have emphasized that hurt feelings, anger and frustration are part of life, and are not the types of emotional harm that could support an award of damages. The plaintiff must instead present specific evidence of emotional damage: There must be a specific discernable injury to the claimant's emotional state, proven with evidence regarding the nature and extent of the harm. To meet this burden, a plaintiff is not absolutely required to submit corroborating testimony (from a spouse or family member, for example) or medical or psychological evidence. The plaintiff's own testimony, standing alone, may be sufficient to prove mental damages but only if the testimony is particularized and extensive enough to meet the specificity requirement discussed above: Neither conclusory statements that the plaintiff suffered emotional distress nor the mere fact that a constitutional violation occurred supports an award of compensatory damages.Id. at 250-51 (Citations, quotation marks and brackets omitted). Parquet's affidavit is not sufficient to raise a genuine issue of material fact as to the elements required to state a claim for intentional infliction of emotion distress under Louisiana law. The record taken as whole could not lead a rational trier of fact to find for Parquet on a claim of intentional infliction of emotional distress and therefore there is no genuine issue for trial. Accordingly, UHS' motion for summary judgment as to Parquet's claim for intentional infliction of emotion distress will be granted and it shall be dismissed with prejudice.
IT IS ORDERED that UHS' motion for summary judgment (Rec. doc. 20) is GRANTED as follows: (1) Parquet's claim for race discrimination pursuant to Title VII is dismissed with prejudice; (2) Parquet's claim for age discrimination pursuant to the ADEA is dismissed with prejudice; (3) Parquet's claims under Louisiana law for age and race discrimination are dismissed without prejudice; and (4) Parquet's claim under Louisiana law for intentional infliction of emotional distress is dismissed with prejudice.