Opinion
CIVIL ACTION NO. 03-2219; SECTION "D" (2)
October 24, 2003
ORDER AND REASONS
Plaintiffs, Akesha Singleton (" Akesha") and Kawanta Singleton ("Kawanta"), filed this action against their former employer, RPM Pizza, Inc. d/b/a Domino's Pizza ("Domino's"). Plaintiffs allege that they were both subjected to race discrimination 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 claims for slander, defamation and intentional infliction of emotional distress under Louisiana law, for which they assert that Domino's is vicariously liable. Complaint, Record Doc. No. 1. 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 a motion to dismiss some of plaintiffs' claims. Domino's argues that plaintiffs fail to state a claim for: (1) negligence because such claims are preempted by Louisiana worker's compensation law, (2) torts that mirror claims brought under federal or state anti-discrimination statutes, (3) intentional infliction of emotional distress, (4) slander or defamation, (5) discrimination in connection with offensive coding of African-American customers in defendant's computer system because plaintiffs are not customers, (6) vicarious liability for intentional torts committed by Domino's employees who were not performing functions on behalf of Domino's when they committed such torts and (7) tort and Section 1981 claims that occurred more than one year before the instant complaint was filed because they are time-barred. Record Doc. No. 8. Plaintiffs filed a timely opposition memorandum. Record Doc. No. 10.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART, as follows.
ANALYSIS
A. Legal Standard for Motion to DismissWhen considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must take the well-pleaded factual allegations of the complaint as true. "All questions of fact and any ambiguities in the current controlling substantive law must be resolved in the plaintiffs favor."Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001); accord McKinney v. Irvmg Indep. Sch. Dist., 309 F.3d 308, 310 (5th Cir. 2002).
"Given the Federal Rules' simplified standard for pleading, [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quotation omitted): accord McKinney, 309 F.3d at 312. Motions to dismiss for failure to state a claim are viewed with disfavor and are rarely granted. Southern Christian Leadership Conference v. Supreme Court, 252 F.3d 781, 786 (5th Cir. 2001).
"However, `conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'"Id. (quoting Fernandez-Montes v. Allied Pilots Ass'n. 987 F.2d 278, 284 (5th Cir. 1993)).
B. The Motion is Granted as to Plaintiffs1 Negligence Claims
In the jurisdiction section of their complaint, plaintiffs cite Louisiana Civil Code articles 2315, 2316, 2317 and 2320 as sources of some of their state law causes of action. Record Doc. No. 1, Complaint ¶ 4. Domino's contends that plaintiffs' negligence claims under these articles are preempted by Louisiana worker's compensation law, which provides the exclusive remedy for an employee injured on the job as the result of negligence. La. Rev. Stat. § 23:1032A(1)(a); Bazley v. Tortorich, 397 So.2d 475 (La. 1981); Smith v. Continental Cas. Co., 752 So.2d 381, 383 (La.App. 1st Cir. 2000).
The Singletons concede that the worker's compensation law provides the exclusive remedy for an employee injured by on-the-job negligence, but they respond that they have not asserted any negligence claims. Although their complaint does not specifically assert a negligence cause of action, the cited Louisiana Civil Code articles clearly provide such a cause of action. Accordingly, defendant's motion to dismiss plaintiffs' state law negligence claims is GRANTED.
C. Plaintiffs Have Not Asserted Tort Claims That Mirror Their Statutory Employment Discrimination Claims
Domino's argues that plaintiffs' tort claims, to the extent such claims are based on the same incidents as their discrimination, retaliation and hostile environment claims and to the extent they attempt to state a claim for those injuries under state tort law, are preempted by the federal and state antidiscrimination laws that provide the same causes of action.
Plaintiffs respond that they have not asserted any tort claims that mirror their employment discrimination claims brought under federal or state statutory law, and that they bring only tort claims for defamation, slander and intentional infliction of emotional distress. My reading of the complaint confirms this. Accordingly, defendant's motion to dismiss is DENIED as to these nonexistent tort claims.
D. Plaintiffs State a Claim for Intentional Infliction of Emotional Distress
Domino's contends that plaintiffs fail to state a claim for intentional infliction of emotional distress. "An emotional distress claim under Louisiana law requires that the plaintiff establish three elements: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that such distress would be substantially certain to result from the conduct." Morris v. Dillard Dep't Stores, 277 F.3d 743, 756 (5th Cir. 2001) (citing Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1022, 1024-25 (La. 2000); White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991)).
Defendant argues that plaintiffs' complaint describes actions which, even if accepted as true, cannot rise to the level of outrageousness necessary to state a claim for intentional infliction of emotional distress. As noted above, motions to dismiss for failure to state a claim are viewed with disfavor and are rarely granted, precisely because the court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Although it remains to be seen whether each plaintiff will be able to prove intentional infliction of emotional distress, their allegations are sufficient at this time to state a claim and defendant's motion to dismiss is DENIED as to this claim.
E. Plaintiffs State a Claim for Slander or Defamation
Defendant argues that plaintiffs' complaint fails to allege all of the essential elements of the cause of action for slander or defamation and should therefore be dismissed. The elements necessary to state a claim for defamation or slander under Louisiana law are (1) defamatory words; (2) publication or dissemination; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Hahn v. City of Kennen 1 F. Supp.2d 596, 600 (E.D. La. 1998); Cangelosi v. Schwegmann Bros. Giant Supermarkets, 390 So.2d 196, 197 (La. 1980); Guilbeaux v. Times of Acadiana, Inc., 661 So.2d 1027, 1031 (La.App. 3d Cir. 1995).
Domino's also notes that "statements between employees, made within the course and scope of their employment, are not statements communicated or publicized to third persons so as to constitute a publication." Bell v. Rogers, 698 So.2d 749, 756 (La.App. 2dCir. 1997): accord Marshall v. Circle K Corp., 715 F. Supp. 1341, 1343 (M.D. La. 1989), affd, 896 F.2d 550 (5th Cir. 1990); Cangelosi, 390 So.2d at 198. Defendant contends that this law immunizes the communications alleged in plaintiffs1 complaint from being considered defamatory.
Again, motions to dismiss for failure to state a claim are viewed with disfavor and are rarely granted. Although it remains to be seen whether each plaintiff will be able to prove defamation, their allegations are sufficient to state a claim and defendant's motion to dismiss is DENIED as to this claim.
F. Plaintiffs Fail to State a Claim as to Coding of Customers
Domino's argues that the Singletons cannot state a claim for discrimination in connection with allegedly derogatory coding of African-American customers in the restaurant's computer system because plaintiffs are not Domino's customers. Defendant contends that plaintiffs lack standing to assert a claim of discrimination on behalf of African-American customers.
Plaintiffs respond that they have no intention of asserting a claim on behalf of African-American customers. They contend that their factual allegations about the offensive coding support their claims of a racially hostile work environment, retaliation and possibly intentional infliction of emotional distress.
Ordinarily, a party may assert only his own legal rights and interests and may not assert the legal rights and interests of third parties.Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985); Procter Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001). To the extent that plaintiffs may be asserting a claim on behalf of African-American customers, defendant's motion to dismiss is GRANTED. However, this ruling in no way prevents plaintiffs from using evidence of the alleged coding to support their claims of injury to themselves, if such evidence is later found to be relevant and otherwise admissible.
G. Plaintiffs State a Claim for Vicarious Liability
Domino's contends that plaintiffs fail to state a claim for vicarious liability for intentional torts committed by Domino's employees because those employees were not performing functions on behalf of Domino's when they allegedly committed such torts. La. Civ. Code art. 2320; Baumeister v. Plunkett, 673 So.2d 994, 996 (La. 1996); LeBrane v. Lewis, 292 So.2d 216, 217-18 (La. 1974).
Although it remains to be seen whether plaintiffs can establish the elements of respondeat superior as to each of their tort claims, their allegations are sufficient to state a claim and defendant's motion to dismiss is DENIED as to these claims.
H. Plaintiffs1 Tort and Section 1981 Claims Are Not Clearly Time-Barred
Plaintiffs' complaint alleges that Akesha was hired by Domino's in April 2002, that Kawanta was hired in May 2002 and that both of them experienced discrimination, retaliation, a hostile work environment, defamation and intentional infliction of emotional distress throughout their employment. The complaint was filed on August 6, 2003. Domino's argues that plaintiffs' tort and Section 1981 claims are time-barred by the applicable one-year limitations period to the extent that their claims are based on events that occurred between April and August 6, 2002, i.e., more than one year before the instant complaint was filed.
Plaintiffs respond that they have alleged continuing violations, which did not begin to prescribe until the violations stopped on August 6, 2002, the date that they both quit Domino's employment. Whether plaintiffs will be able to prove these allegations remains to be seen, but the allegations are sufficient to state claims based on actions that occurred before August 6, 2002 and were of such an ongoing nature that they essentially would constitute a single unlawful practice or continuing violation. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116-18 (2002); King v. Phelps Dunbar. LLP, 743 So.2d 181, 188-89 (La. 1999); Bustamento v. Tucker, 607 So.2d 532, 542 (La. 1992). Accordingly, defendant's motion to dismiss these claims at this time is DENIED.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's motion to dismiss is GRANTED as to plaintiffs' state law negligence claims and for discrimination in connection with allegedly derogatory coding of African-American customers, and those claims are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the remainder of the motion is DENIED.