Opinion
Civil Action No. 99-1210. Section "F".
August 3, 2000.
ORDER AND REASONS
Before the Court is defendant's motion for summary judgment. For the reasons that follow, defendant's motion is GRANTED.
Background
In this case, the plaintiff, Jose Salazar, a resident of New Mexico, asserts claims against Copper Overseas Service Company (COSCO) for age, race and national origin discrimination as well as whistle blowing and retaliation under Louisiana law. Salazar also makes discrimination claims under federal law. COSCO is a Delaware corporation with its principal place of business in Indonesia. P.T. Freeport Indonesia (PTFI) is also a Delaware corporation that operates a mine in Irian Jaya, Indonesia. At the time of his termination, the plaintiff was employed by COSCO.
The plaintiff was hired in 1987 by COSCO, formerly Freeport Overseas Corporation, to work at PTFI's mine in Indonesia. The operations of Freeport Overseas were taken over by COSCO in 1997.
The plaintiff began his employment as an underground mining instructor and was promoted to several other positions throughout his employment. The last position that he held was Superintendent of Special Projects.
Indonesian government policy required COSCO to reduce the number of positions held by non-Indonesian workers in favor of Indonesian workers. (The non-Indonesian workers typically held the more skilled positions until a Indonesian worker could be trained to take over the position.) In 1998, COSCO determined that Salazar's position could be taken over by a Indonesian worker. In April 1999, the plaintiff filed this lawsuit against COSCO, asserting claims of race, age and national origin discrimination, as well as claims for retaliation and whistle blowing.
Standard and Application
Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case.See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Finally, in evaluating the summary judgment motion, the court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.
I. State Law Claims A. Discrimination and Retaliation
The plaintiff charges COSCO with discrimination based on age, race and national origin, and retaliation all under the Louisiana Employment Discrimination Law, La. Rev.Stat. § 23:301, et seq. The defendant counters that Louisiana law does not apply because La. Rev. Stat. § 23:331(A) applies only those employers with at least fifteen employees in the state of Louisiana and § 23:311(A) applies to employers with at least twenty employees in the state of Louisiana. The Court agrees. COSCO is incorporated in Delaware and has no employees in Louisiana. COSCO's only employees are in Indonesia. This is evidenced by the affidavit of Alison Lauricella, the Vice President-Organizational Development of FM Services, and is undisputed on this record.
§ 23:331(A) deals with race and national origin discrimination and § 23:311(A) refers to age discrimination.
The plaintiff simply urges that Louisiana law applies because his 1987 engagement letter specifies that Louisiana law governs all issues that might arise out of the employment relationship. The Court finds this argument without merit. The law to which the letter refers by its terms does not cover Salazar. COSCO does not have fifteen employees in Louisiana. The plaintiff also asserts that he was actually employed by PTFI, and that PTFI as the parent company does have fifteen or more employees in Louisiana. The Court also finds this argument without merit. The plaintiff does not support this assertion with competent evidence to defeat COSCO's properly supported motion for summary judgment.
B. Whistle blowing
In his opposition, the plaintiff asserts that he makes claims under the Louisiana Whistle Blower Statute, La. Rev. Stat. 23:967 because he was discharged as a result of complaining about illegal acts. The Court finds that the plaintiff has not properly raised this claim. plaintiff's complaint neither makes reference to this statute, nor sets forth circumstances that give rise to the claim. See Walker v. South Cent. Bell Tel. Co., 904 F.2d 275, 277 (5th Cir. 1990); see also Beanal v. Freeport McMoRan, Inc., 197 F.3d 161, 163 (5th Cir. 1999). Plaintiff's reliance on such a scatter-shot approach fails of its own weakness. In addition, even if the plaintiff had properly raised this claim, the Court would not have jurisdiction because the Louisiana Whistle Blower statute, La.R.S. § 23:967(B) mandates that a whistle blower may bring a claim "in a district court where the violation occurred." The conduct at issue in this case occurred in Indonesia. Finally, the Court draws attention to the fact that the statute does not expressly provide for extraterritorial effect as the Supreme Court has required for years. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 259, 111 S.Ct. 1227, 1236, 113 L.Ed.2d 274 (1991) (extraterritorial effect cannot be given to state statutes unless expressly provided by the statute itself).
II. Federal Claims
The defendant first asserts that the plaintiff's complaint fails to specify that he is seeking relief under federal law, and thus it was not on proper notice of the existence of federal claims. The Court does not agree. The argument elevates too much form over too little substance. It glosses over our notice pleading model.
Rule 8(a) of the Federal Rules of Civil Procedure merely requires a short and plain statement of a claim showing that the plaintiff is entitled to relief. And "[the policy of the federal rules is to permit liberal pleading and amendment thus facilitating adjudication on the merits while avoiding excessive formalism." Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir. 1985). Although the plaintiff has not singled out a particular federal statute, his prayer for relief requests that the Court "[d]eclare that the acts and practices complained of herein are in violation of federal and Louisiana law." This, coupled with plaintiff's allegations under state law, was and is sufficient to place the defendant on notice of the nature of plaintiff's claims. The Court now addresses the plaintiff's specific federal law claims.
A. Title VII and ADEA Claims
In his opposition to COSCO's motion for summary judgment, Salazar makes reference to claims under Title VII, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA). Both Title VII and the ADEA provide administrative remedies for one who complains of job discrimination. It is settled that prior to filing suit for violations under Title VII or the ADEA, the aggrieved employee must file a formal, signed and verified charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged violation. 42 U.S.C. § 2000e-5 (e)(1); 29 U.S.C. § 262 (d)(1). The administrative process holds the key to the door of this Court. In this case, there is no evidence that the plaintiff has filed charges with the EEOC or complied with the administrative process so long in place. Thus, plaintiff is precluded from maintaining these claims.
B. Claims under 42 U.S.C. § 1981
The plaintiff also argues that he has asserted a claim for race and national origin discrimination under 42 U.S.C. § 1981. The use of § 1981 as an avenue for redress of employment discrimination is not constrained by the administrative prerequisites so as to bar his Title VII claims. However, § 1981 only applies to claims for race discrimination and not claims for national origin discrimination. As for plaintiff's race discrimination claims, the Court does not have jurisdiction because § 1981 applies only within the territory of the United States. The Supreme Court has repeatedly made clear that the statute does reach outside of the United States. EEOC v. Aragian American Oil Company, 499 U.S. 244, 259, 111 S.Ct. 1227, 1236, 113 L.Ed.2d 274 (1991); Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 577, 93 L.Ed. 680 (1949).
Accordingly, the defendant's Motion for Summary Judgment is GRANTED and plaintiff's claims are hereby dismissed.