Opinion
CIVIL ACTION NO. 01-1322, SECTION "N"(3)
January 3, 2002
ORDER AND REASONS
Before the Court is defendant Gateway Companies, Inc. of Delaware (Gateway's) motion for summary judgment seeking dismissal of all of the plaintiffs claims (gender discrimination under Louisiana Employment Discrimination Law). Plaintiff Tami Seal (Seal) filed formal opposition to which Gateway replied. The motion for summary judgment was noticed for hearing on December 26, 2001, but was deemed submitted for decision without oral argument. Considering the premises, as well and the bases of plaintiffs pending motions to amend and for reasons discussed below, Gateway's Motion for Summary Judgment is GRANTED.
At the outset, the court notes that presently pending before the United States Magistrate Judge Africk are motions filed on behalf of the plaintiff seeking to amend to add additional plaintiffs and to amend her responses to requests for admissions. On account of plaintiffs complete failure to respond to Gateway's request for admissions, the matters addressed were deemed judicially admitted pursuant to FRCP Rule 36(a), which is essentially a self-executing rule constrained only by the provisions of FRCP Rule 26(d), concerning the sequence and timing of discovery, and FRCP Rule 36(b), pertaining to the district court's perogative to permit withdrawal or amendment of the admission when presentation of the merits will be subserved thereby.
BACKGROUND
On February 2, 2001, Seal's employment as supervisor in the customer service department of the defendant Service Zone, Inc. ("Service Zone") at its facility in Bogalusa, Louisiana, was terminated. Seal had been employed by Service Zone as a supervisor since September 28, 2000, and her responsibilities included supervising other employees' performances in responding to the telephone queries of Gateway's computer customers. Plaintiffs claims are that, despite the performance of her duties well and to the satisfaction of her Service Zone and Gateway, she was terminated on February 2, 2001 in retaliation for complaining that the conditions of the women's restroom at Service Zone's Bogalusa facility violated OSHA standards, the absence of which placed the company at risk of liability for failure to comply with the regulations. The thrust of plaintiffs allegations is that the reason given for terminating her employment ( i.e., that her briefing of female employees undermined the authority of the center's director) was merely a pretext. Plaintiff asserts that she was in fact fired in retaliation for protesting against her employers' illegal and discriminatory treatment of women at the Bogalusa Service Zone facility.
Plaintiff objected to the site director's proposed course of action to solve the problem of the deplorable condition of the women's restroom, which proposals allegedly included: (1) closing the restroom; (2) having female employees escorted to the restroom; or (3) establishing portable toilets either inside of or outside of the building. The facility which Service Zone occupied was formerly an AP grocery store, which provided a women s restroom with only two stalls. The restroom facilities were not modified when the facility was later occupied by Service Zone.
CONTENTIONS OF THE PARTIES
Gateway argues that undisputed material facts demonstrate that: (1) Gateway was not plaintiffs nominal or actual employer, and thus it is not liable for claims filed pursuant to La.R.S. 23:332 (gender discrimination) and La.R.S. 23:967 (retaliatory discharge); and (2) Gateway played no role whatsoever in the termination of or the decision to terminate the plaintiffs employment with Service Zone, Inc., and thus it is not liable pursuant to La.R.S. 51:2256 (conspiracy to retaliate). Gateway's motion is premised in part on plaintiffs failure to respond to its requests for admissions. Gateway further submits that even if plaintiff were allowed to withdraw her admissions, the discovery sought would not yield the desired result ( i.e., contested issues of material fact).
Seal's formal opposition challenges Gateway's motion as premature, arguing that Gateway's answer to plaintiffs discovery requests are not due until after the noticed hearing date. Plaintiff submits that on November 21, 2001, she propounded a number of discovery requests, concerning the very issue of whether the operations of defendants Gateway and Service Zone were sufficiently integrated or so "inextricably intertwined," that Gateway should be considered together with Service Zone a single/joint employer within the meaning jurisprudence interpreting Title VII. Plaintiff argues that convincing evidence exists which leads to the conclusion that Gateway is a "single employer" within the meaning of Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983) (a Title VII case), and that Louisiana courts looks to federal jurisprudence interpreting Title VII for guidance in interpreting the state's employment discrimination statute. Counsel for plaintiff further suggests that if in fact the Court is inclined to take its cue from defendant and exalt form over substance, that Gateway's motion should be denied because it failed to follow the local rule of this Court (Rule 2.09) and file contemporaneously a concise statement of material facts as to which there is no genuine issue. Finally, plaintiff reminds this Court that Gateway previously attempted to prematurely extract itself from this litigation in advance of the completion of discovery, filing an unsuccessful Motion to Dismiss.
See Judge Vance's Order and Reasons entered September 4, 2001 [Fed.Rec.Doc. No. 16]. The Court noted that plaintiffs allegations concerning "a business arrangement" between Gateway and Service Zone could be evidenced by a course of dealings between the parties. Judge Vance denied Gateway's Motion to Dismiss because it failed to demonstrate that plaintiff could present no set of facts establishing Gateway's "employer" status, without deciding that issue.
Gateway's formal reply is simply that Louisiana's employment discrimination statute precisely' defines the term "employer," and federal cases construing that term within the meaning of Title VII are not instructive, and thus should not inform the court's decision on the issue presented (Gateway's "employer" status under L.R.S. 23:302(2)). As to the alleged "conspiracy to retaliate," Gateway submits that it is undisputed that it played no part whatsoever in the termination of the plaintiff, which was rather the result of a local squabble over Service Zone's physical building facility in Bogalusa, Louisiana.
ANALYSIS
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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." F.R.C.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. 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. "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 Corp. v. Cattret, 106 S.Ct. 2548, 2552-53 (1986), quoting Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511-12 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under the governing law. No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. 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 her claims. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." "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."
Anderson, 106 S.Ct. at 2510.
National Association of Government Employees v. City Public Service Board, 40 F.3d 698, 712 (5th Cir. 1994).
Id. (citing Celotex Corp. v. Cattret, 106 S.Ct. at 2551-53 (1986)).
Celotex Corp. v. Cattret, 106 S.Ct. at 2553 (1986).
Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998).
Louisiana's Employment Discrimination Law provides, inter alia, that an employer's intentional discharge of any individual or other intentional discrimination against any individual with regard to the terms and conditions of employment because of the individual's sex constitutes an unlawfully discriminatory employment practice. La.Rev.Stat. 23:332. Louisiana's Whistleblower Statute outlaws reprisal by an employer against an employee who, in good faith and after advising the employer of the violation of law, discloses or threatens to disclose an unlawfully discriminatory business practice, provides information to a public body investigating such violation of law, or objects to or refuses to participate in such an employment practice. La.Rev.Stat. 23:967.
Unlike the broad definition set forth in Title VII, an "employer" within the meaning of Louisiana's anti-discrimination statute includes "a person, association, legal or commercial entity . . . receiving services from an employee and, in return, giving compensation of any kind to an employee." La.Rev. Stat. 23:302(2) (previously codified at 23:1006(A)(1)) (emphasis added).
LSA-R.S. 23:1006A(1) defined the term "employer" as follows:
(1) For the purposes of this Part, 'employer' means and includes a person, association, legal or commercial entity, labor union, employment agency, the state, its agencies, boards, commissions, or political subdivisions receiving services from an individual and in return giving compensation of any kind to said individual and who employs more than fifteen employees.
LSA-R.S. 23:1006 was repealed by Acts 1997, No. 1409, S 4, effective August 1, 1997.
Concerning liability under La.Rev.Stat. 23:332 and 967, Gateway submits that there is a complete failure of proof concerning the essential element of plaintiffs case — that it is an "employer" within the meaning Louisiana's employment discrimination statute. Gateway urges this Court to deny plaintiffs request to allow amendment of its FRCP Rule 36(a) admissions, reminding the Court that plaintiff completely failed to respond. Gateway submits that the provisions are self-executing and Fifth Circuit jurisprudence bolsters its argument. In any event, Gateway submits that the evidence targeted by plaintiffs outstanding discovery requests ( i.e., the integration of Gateway's and Service Zone's operations) is not pertinent to the determination of "employer" status under Louisiana employment discrimination law. That is precisely the issue before the Court regarding the dismissal of plaintiffs claims pursuant to L.R.S. 23:332 and 967.
In re Carney, 258 F.3d 415, 419-21 (5th Cir. 2001) (FRCP Rule 36 admissions, whether express or by default, are conclusive as to the matters admitted and cannot be overcome at the summary judgment stage by contradictory affidavit testimony or other evidence in the summary judgment record.).
It is not disputed that Louisiana's anti-discrimination statute is substantively similar to and patterned after the federal anti-discrimination prohibitions in Title VII of the Civil Rights Act of 1964. Louisiana courts routinely look to federal jurisprudence for guidance in determining whether a claim has been asserted. Additionally, both Title VII and its counterpart under Louisiana law proscribe unlawfully discriminatory conduct on the part of "employers." The provisions prohibiting employment discrimination of the basis of race, color, religion, sex or national origin are now contained in LSA-R.S. 23: 331-334. "In the adjudication of sexual harassment claims, Louisiana decisions have generally cited La. R.S. 23:1006 . . . and have followed the federal interpretations in Title VII cases in defining sexual harassment." Hailey v. Hickingbottom, 715 So.2d 647, 650 n. 1 (La.App. 2nd Cir. 1998) (emphasis added). Additionally, both the Louisiana courts in interpreting the state employment discrimination statute, as well as the federal courts interpreting the state statute and its counterpart in Title VII interpreting similar definitions, have found that suits were precluded against individuals in their individual capacity. However, under the federal counterpart to Louisiana employment discrimination law, there is no language defining the term "employer," which is even remotely similar to La.Rev.Stat. 23:302(2)'s language ("receiving services, . . . and in return, giving compensation to an employee"). La.Rev.Stat. 23:302(2); see also La.Rev.Stat. 23:1006 (Repealed).
See Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989); Williams v. Conoco, Inc., 860 F.2d 1306, 1307 (5th Cir. 1983); Plummer v. Marriot Corp., 654 So.2d 843, 848 (La.App. 4th Cir. 1995).
The "any agent" language contained the now repealed La.Rev.Stat. 51:2242, analogous to that found in the federal counterpart, 42 U.S.C. § 2000e-(b), was interpreted so as to impose respondeat superior liability on employers for acts of their agents, as opposed to individual liability on employers for acts of their agents. See Grant v. Lone Star Co., 21 F.3d 649, 652-53 (5th Cir. 1994), cert. denied, 513 U.S. 1015, 115 S.Ct. 574 (1994) (interpreting similar agency language in Title VII and finding that it imposed liability only on individuals who independently meet the definition of employer); and Spears v. Rountree Oldsmobile-Cadillac Co., 653 So.2d 182 (La.App. 2nd Cir. 1995) (construing liability of "employers" under Louisiana employment discrimination law and finding suits precluded against individuals in their individual capacity).
Unlike Louisiana's statute, the federal statutory provisions under Title VII and 42 U.S.C. § 2000-e(b) provide that the term "employer's means 'a person engaged in an industry affecting commerce who has fifteen or more employees. . . .'" Id. There is no suggestion whatsoever in the federal statute of any intention of limiting liability to either a "payroll" employer or an employer who "compensates" an employee in return for services rendered. These are defining terms, however, for "employer" liability under Louisiana's employment discrimination statute.
As discussed below, Louisiana courts have not found that such a construction constitutes a myopic view, but rather follows the clear meaning of the statutory language. Lest it be forgotten, Louisiana courts must also be guided by Louisiana Code of Civil Procedure Article 9, which provides: "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." Id.
Indeed, to satisfy the definition of employer under Louisiana's employment discrimination statute, one must: (1) receive services from an employee and return give compensation to that employee; and (2) meet the requisite number of employees prescribed by the statute. La.Rev.Stat. 23:302(2); see also Hornsby v. Enterprise Transportation Co., 987 F. Supp. 512, 515 (M.D. La. 1997) (interpreting L.R.S. 23:1006 (Repealed)). Counsel for plaintiff submits that there are no state cases on point, and thus jurisprudence interpreting Title VII is also instructive on the issue of whether an entity can be held liable as an "employer" under Louisiana's anti-discrimination law. I disagree, for reasons set forth herein.
Because "the plaintiff [in Hornsby] did not allege that he performed services for and that he personally received compensation from Bobrick," the district court concluded that Bobrick was not Hornsby's employer and had no claim against Bobrick under Louisiana's employment discrimination law. Hornsby, 987 F. Supp. at 515.
See Grant v. Lone Star Company, 21 F.3d 649 (5th Cir. 1994).
The Louisiana Fourth Circuit's decision in Duplessis v. Warren Petroleum, Inc., 672 So.2d 1019 (La.App. 4th Cir. 1996), and some others discussed below are instructive. The Duplessis court construed the term "employer" as defined by Louisiana's anti-discrimination statute and observed:
Although the test in Louisiana to determine if an employer-employee relationship exists relates to "right of control," the legislature gave "employer" a specific definition which controls in an action for intentional discrimination in employment. La. R.S. 23:1006. This Court considered whether the defendant paid the plaintiffs wages and withheld federal, state, unemployment or social security taxes from his check. Onycanusi v. Times Picayune Publishing Corp., 485 So.2d 622 (La.App. 4th Cir. 1986).Duplessis, 672 So.2d at 1022. The court opined that even if the defendant Warren Petroleum had a contract with defendant Cart Enterprises, Warren Petroleum may not be considered an "employer" within the meaning of Louisiana's anti-discrimination statute, because of the following: (1) the plaintiff had a contract with the defendant Cart Enterprises; (2) the plaintiff worked for Cart; (3) the plaintiff rendered services to Cart; and most importantly, (4) the plaintiff was compensated by Cart. Id. The Duplessis court specifically highlighted the fact that the term "'[e]mployer' under Title VII, does not have the same limited interpretation" as provided by Louisiana's employment discrimination statute (La. R.S. 23:1006). Id.
LSA-R.S. 23:302(2) and its predecessor, LSA-R.S. 23:1006A(1), both provide that "employer" 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." Whereas Section 1006A (1) limited the statute's applicability to an employer who employs than fifteen employees, Section 302(2) limits applicability of the law to employers who employ twenty or more employees within the state.
Gateway does not dispute that the law under Title VII contemplates two nominally separate but interrelated business entities being considered a "single employer," and liable as such under Title VII based upon: (1) interrelation of their operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. The Fifth Circuit addressed the "single employer" doctrine in Trevino v. Celanese Corp., setting forth the above enumerated four factors used to determine the propriety of piercing the veil of superficially distinct entities and holding them liable as a single integrated enterprise. Courts applying the four-part standard focus on the second criteria (centralized control of labor relations), a critical inquiry being what entity made the final decisions regarding employment related matters related to the person claiming discrimination? The "right to control an employee's conduct is the most important component" of Trevino analysis, which is utilized to establish whether the second or an additional defendant is also an "employer" of the plaintiff for purposes of Title VII.
See Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 763 (5th Cir. 1997) (citing Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983)).
Trevino, 701 F.2d at 404.
Id.
Schweitzer, 104 F.3d at 764 (citing Deal v. State Farm County Mutual Insurance Company of Texas, 5 F.3d 117, 118 (5th Cir. 1993)).
However, the federal jurisprudence interpreting term "employer" for purposes of Title VII is at odds with the Louisiana courts' interpretation of the term "employer" for purposes of Louisiana's employment discrimination law. Louisiana jurisprudence is precisely to the effect that the "right to control" analysis is not applicable, since the term "employer" is precisely defined by the Louisiana's employment discrimination statute. See Duplessis, 672 So.2d at 1022. Whether the commercial or legal entity is dubbed a "joint venture," a "single employer" or otherwise, if compensation of some kind was not paid by that particular commercial or legal entity directly to the employee, under Louisiana employment discrimination law, such a commercial or legal entity is not an "employer."
In the case at bar, there is not a scintilla of evidence that Gateway paid the plaintiff anything. There is no suggestion that the plaintiff herself received any compensation directly from Gateway, a Gateway/Service Zone Joint Venture Account, or Gateway/Service Zone Joint Venture Benefit Plan, Package, or Promotion.
Louisiana jurisprudence provides that central to the determination of whether a defendant is an employer for purposes of Louisiana's anti-discrimination law is "whether the defendant paid the plaintiffs wages and withheld federal, state, unemployment or social security taxes from his check." Id. In Onyeanusi v. Times-Picayune, Publishing Corp., the plaintiff appealed summary judgment in favor of the defendant on the basis of an alleged genuine issue of material fact, concerning the Times-Picayune's status of an employer within the meaning of La. R.S. 23:1006(A). The Louisiana Fourth Circuit Court of Appeal affirmed summary judgment in favor of the defendant and explained:
In the instant case there is no evidence in the record to indicate that the Times-Picayune compensated the appellant. . . . The Times-Picayune did not pay appellant wages nor did it withhold federal, state, unemployment or social security taxes from the profit remitted him. The appellant's name does not appear on the Times-Picayune employee roll, nor does he participate in its benefits plan.
Moreover, the Times-Picayune assumed no responsibility for any damages appellant might cause while delivering papers and held him responsible for the cost of the papers he received regardless of whether he was paid by the customer, Under these circumstances we cannot say that the Times-Picayune was appellant's employer.
Appellant's affidavit in opposition to the motion for summary judgment did not address the issue of compensation. It focused on whether the Times-Picayune had the right to control the actions of appellant. Although, the test normally used to determine if an employer-employee relationship exists is the "right-of-control", the legislature in enacting R.S. 23:1006, gave the word "employer" a specific definition. See R.S. 23:1006(A) discussed above. It is that definition which is controlling here.Onyeanusi, 485 So.2d at 623.
It is noteworthy that one federal district court in Alphonse v. Omni Hotels Management Corp., 757 F. Supp. 722 (E.D. La. 1991)(Arceneaux, J.) gave short shrift to the Louisiana Fourth Circuit's decision in Onyeanusi, finding it "unimpressive," and holding that the plaintiff stated a viable claim against his supervisor under Louisiana law. That decision was overruled sub silentio by the Fifth Circuit's decision in Grant v. Lone Star, which held that only individuals that independently meet the statutory definition of "employer" may be held liable. 21 F.3d at 653. In Hornsby, Judge Polozola specifically held that the Alphonse case was not an accurate statement of the law. 987 F. Supp. at 515 n. 11.
In Trahan v. Rally's Hamburgers, Inc., 696 So.2d 637 (La.App. 1St Cir. 1997), the Louisiana First Circuit similarly construed the term "employer" within the meaning of Louisiana's anti-discrimination statute. In Trahan, Trahan and Carter sued their former employer-franchisee Fifty-Five, Inc., and the corporate franchise holder Rally's, among others. The appellate court affirmed the summary judgment in favor of Rally's, dismissing plaintiffs' claims against it, because Rally's was not the "employer" of Johnny Carter. According to the evidence Carter was employed by Fifty-Five, Inc. His paychecks were from Fifty-Five, Inc. and not from Rally's. Id. at 642.
In Triche v. Crescent Turnkey Engineering, 744 So.2d 689 (La.App. 5th Cir. 1999), cert. denied, 752 So.2d 869 (La. 2000), the Louisiana Fifth Circuit Court of Appeal affirmed the state trial court's judgment granting defendant Century's peremptory exception of res judicata and dismissing plaintiffs gender discrimination claims under Louisiana's Employment Discrimination Law and the Louisiana Human Rights Act (LHRA), LSA-R.S. § 51:2231. In prior litigation filed in the United States District Court for the Eastern District of Louisiana, plaintiffs state law gender discrimination claims against defendant Crescent were dismissed for failure to meet the fifteen employee minimum prescribed by the statute. Her gender discrimination claims under Louisiana law against codefendant Century were dismissed because it was found not to be plaintiffs employer at all. Id. at 693; and Triche v. Crescent Turnkey Engineering, 1998 WL 355460 (E.D. La. 1998)(Berrigan, J.)[attached]. Additionally, plaintiffs claims against Warren Young and Joseph Slattery were dismissed because Louisiana's Employment Discrimination Law and the LHRA "permit suits only against 'employers,' which are defined as persons 'receiving services from an employee and, in return, giving compensation of any kind to an employee.'" Id. (emphasis in original).
In the case at bar, the entire thrust of the affidavits submitted by the plaintiff and two-item statement of contested material facts is Gateway's "right to control" employment conditions so as to render it together with Service Zone, a "single employer." Plaintiffs opposition is limited to demonstrating that evidence exists that the personnel operations of Gateway and its functional subsidiary, Service Zone, were inextricably intertwined and that given its operational oversight and control, Gateway should be held accountable for any unlawful discrimination or retaliation which benefitted both defendant companies. The body of plaintiffs "Statement of Contested Material Facts" reads in its entirety as follows:
"1. Defendants Gateway Companies, Inc. of Delaware and Service Zone are so integrated in their operations as to become a joint employer.
2. In fact, Defendant Gateway Companies, Inc. of Delaware exercised control over the employment conditions of the Plaintiff Tami Seal to such an extent necessary to become a joint employer."See Opposition Memorandum and attached "Statement of Contested Material Facts." The facts pertinent to determination of whether Gateway is an "employer" within the meaning of L.R.S. 23:302(2) ( i.e., receiving service and in turn giving compensation to an employee) remain undisputed.
Gateway's Requests for Admissions, which spoke directly to the issue of compensation, are deemed admitted by plaintiffs failure to respond. Indeed, even at this juncture of the proceedings, plaintiff does not suggest that she was directly compensated in any manner at any time by Gateway for services rendered. Service Zone paid her for her services. Whether these services enured to Gateway's benefit is not relevant under this analysis. Even now, plaintiff does not genuinely dispute that Service Zone, issued her IRS Form W-2, paid her wages/compensation/benefits, and withheld any federal, state, unemployment or social security taxes which may have been due. Plaintiff has come forward with no evidence that anyone at Gateway played even a minor role in her alleged retaliatory discharge from Service Zone's employment which followed plaintiffs squabble with other Service Zone supervisory personnel, concerning the Service Zone Bogalusa facility's female bathroom policy and that particular building facility's alleged failure to comply with OSHA regulations regarding the provision of the requisite number of female bathroom stalls. Simply stated, plaintiff rests her opposition entirely on the argument that defendant's Gateway and Service Zone are a single entity within the meaning of Trevino, supra, a Title VII case.
Plaintiff has not satisfied her burden under F.R.C.P. Rule 56(f), which requires that the party opposing summary judgment on the basis of additional discovery submit affidavits to the Court setting forth specific facts which demonstrate that additional discovery might rebut the movant's showing of the absence of a genuinely disputed material issue of fact. Plaintiff has offered no good reason for her failure to respond in any fashion to Gateway's requests for admissions. The issue of the plaintiffs compensation is not information exclusively within the control of the defendant. Indeed, plaintiff should know whether or not she was ever compensated for her services directly from Gateway, or a Gateway/Service Zone joint venture account. Whether Gateway or Service Zone or a joint venture paid her salary, withheld taxes, paid her benefits, and the like, are simply not matters the plaintiff-payee would not presently know.
Moreover, assuming arguendo that outstanding discovery propounded to Gateway did reveal that Service Zone and Gateway were so integrated as to satisfy Title VII's "single employer" analysis, that would not create a material issue of fact precluding summary judgment in favor of Gateway. Plaintiffs claims against Gateway are filed pursuant to Louisiana's Employment Discrimination Statute only. Louisiana jurisprudence is precisely to the effect that, if the legal or commercial entity did not pay compensation of some kind to the employee for services received from the employee, then it is not an "employer" within the meaning of LSA-R.S. 23:302(2).
Considering that there is no genuine dispute as to any issue of material fact,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of defendant Gateway Companies, Inc. of Delaware, seeking dismissal of all of the plaintiffs claims against it in the captioned matter is GRANTED. 28 U.S.C. § 1367 Hubbard v. Blue Cross Blue Shield Assn. 42 F.3d 942 Cinel v. BERRIGAN, District J. Connick 15 F.3d 1338 1345 et seq
1998 WL 355460 Page 1 (Cite as: 1998 WL 355460 (E.D.La. 1998) Only the Westlaw citation is currently available. Plaintiff's position, on the other hand, is that all the state law claims, including those for intentional United States District Court, E.D. Louisiana. infliction of emotional distress and battery, should remain in federal court. Plaintiff contends that Tammy Ann TRICHE essentially all depositions for this action have been v. taken and that a retention of jurisdiction by this Court CRESCENT TURNKEY ENGINEERING, would be the most expeditious. L.L.C. et al Under , even after all federal No. CIV. A. 97-2657. claims have been dismissed, the court has discretion to adjudicate state law claims asserted under supplemental June 26, 1998. jurisdiction. , (5th Cir. 1995). The Court should ORDER AND REASONS retain such claims when judicial economy, convenience, and fairness to the parties are served. , , (5th Cir. 1994). *1 This matter is before the Court on memoranda The Court here will retain jurisdiction over from the parties as to whether the Court should plaintiff's state law discrimination claims as the retain jurisdiction over plaintiffs state law claims of inquiry into what will prove to be the key issue, battery, intentional infliction of emotional distress, namely, the size of plaintiff's employer, has already and discrimination. been made. Though Triche's complaint does not name a specific code provision for these discrimination claims, Defendants Crescent Turnkey Engineering, they presumably arise under the Louisiana Employment L.L.C. ("Crescent"), Century Offshore Management Discrimination Law, Acts 1997, No. 1409, § 4, and Corporation ("Century"), Joseph Slattery ("Slattery"), the Louisiana Human Rights Act, L.S.A.7—R.S. and Warren Young ("Young") moved previously for summary § 51:2231, . judgment against plaintiff Tammy Ann Triche ("Triche"). This Court granted their motion as to The Louisiana Employment Discrimination Law permits Triche's Title VII claims. The grounds for the opinion suits only against entities with more than fifteen were that Crescent and Century did not constitute a employees. Acts 1997, No. 1409, § 4, effective Aug. single employer, and that Triche's employer therefore 1, 1997. The Louisiana Employment Discrimination Law lacked the minimum number of employees required by Title also supplanted L.S.A.—R.S. § 51:2232(4), the VII. The Court then requested memoranda from both section of the Louisiana Human Rights Act which had parties as to whether it should retain jurisdiction over permitted suits against employers with eight or more plaintiff's remaining claims, all of which arise under employees. As Triche's employer, Crescent, had only five state law. employees, Deposition of Joseph Slattery, Exhibit A to Plaintiff's Opposition to Motions to Dismiss and/or for Both parties agree that this Court should retain Summary Judgment (Record Document No. 15), at 16-17, jurisdiction over at least some of the state law Triche's claims against Crescent under the Louisiana claims. Defendants maintain that the discrimination Employment Discrimination Law and the Louisiana Human claims should be heard by this Court because the Rights Act are dismissed for failure to meet the fifteen relevant factual inquiry into the size of the employer employee minimum. Triche's claims under the Louisiana has already been made, and that the remaining claims Employment Discrimination Law and the Louisiana Human should be heard in state court because no factual Rights Act against co-defendant Century are, of course, findings have been made as to the issues they present. also dismissed, as Century has been found by this Court Defendants further contend that the Court should grant not to be Triche's employer at all. summary judgment as to the state discrimination claims because the minimum number of employees required under state law is not present. Copr. © West 2001 No Claim to Orig. U.S. Govt. Works 1998 WL 355460 Page 2 (Cite as: 1998 WL 355460, *2 (E.D.La.)) *2 Additionally, Triche's Louisiana Employment judgment of dismissal of these claims so as to allow Discrimination Law and Louisiana Human Rights Act claims plaintiff to file suit in state court without against defendants Warren Young and Joseph Slattery are encountering a prescription problem. dismissed, as those laws permit suits only against "employers, which are defined as persons 'receiving Accordingly, services from an employee and, in return, giving compensation of any kind to an employee.'" Acts 1997, IT IS ORDERED that defendants' motion for summary No. 1409, § 4, effective Aug. 1, 1997 (emphasis judgment is GRANTED as to Triche's Louisiana Employment added). Discrimination Law and Louisiana Human Rights Act claims against Century, Crescent, Warren Young and Joseph Triche's sole remaining claims are for battery and Slattery. IT IS FURTHER ORDERED Triche's state law intentional infliction of emotional distress. Because claims for battery and intentional infliction of there has been little relevant factual development in emotional distress against Young and Slattery are the record, and because those claims are involve purely DISMISSED, with a formal judgment of dismissal to be state laws with no federal analogues, the Court finds it issued three weeks from today. appropriate not to retain jurisdiction over these claims. The Court will delay its formal END OF DOCUMENT Copr. © West 2001 No Claim to Orig. U.S. Govt. Works