Summary
outlining other federal courts that have barred discrimination claims for failure to comply with La.R.S. 23:303(c)
Summary of this case from Bertaut v. Folger Coffee CompanyOpinion
No: 01-3243
July 12, 2002
ORDER AND REASONS
Plaintiff, Vanessa Trahan, acting pro se, sued her former employer, Lowe's Home Centers, Inc. (incorrectly identified as "Lowe's, Inc."), in the 32nd Judicial District Court for the Parish of Terrebonne. State of Louisiana. She alleged causes of action for sexual harassment and discrimination. Record Doc. No. 1, Petition. Lowe's removed the action to this court on the basis of diversity jurisdiction. Record Doc. No. 1, Notice of Removal. Trahan has since retained counsel. Record Doc. No. 20. 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 written consent of all parties. Record Doc. No. 23.
Lowe's filed a motion for summary judgment, alleging that Trahan failed to satisfy' the prerequisites for filing an employment discrimination lawsuit under both Title VII and Louisiana state law. Record Doc. No. 24. Trahan filed a timely opposition memorandum. Record Doc. No. 29. Lowe's obtained leave to file a reply memorandum. Record Doc. Nos. 31, 32.
Trahan filed a motion to amend her complaint to clarify her allegations of sexual harassment and discrimination under Title VII and Louisiana law; to add a claim under the Equal Pay Act, 29 U.S.C. § 206(d) et seq.; to add state law claims of retaliation, defamation, slander and invasion of privacy and to assert a jury demand. Record Doc. No. 30. Lowe's filed a timely opposition memorandum. Record Doc. No. 33.
Trahan received leave to file a reply memorandum in support of her motion to amend the complaint and a supplemental memorandum in opposition to Lowe's motion for summary judgment. She attached new evidence, consisting of plaintiff's affidavit, to her supplemental opposition. Record Doc. No. 35. Lowe's moved to strike Trahan's supplemental opposition and her affidavit, or alternatively requested leave to file a surreply memorandum to address the new evidence. Record Doc. No. 36. The court denied the motion to strike but gave defendant leave to file a surreply memorandum. Record Doc. No. 37. Home Depot filed a timely surreply memorandum. Record Doc. No. 38.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that Lowe's motion for summary judgment is GRANTED.
IT IS FURTHER ORDERED that plaintiff' s motion to amend her complaint is GRANTED IN PART AND DENIED IN PART. The motion is DENIED as to plaintiff's Title VII claims and her state law harassment and discrimination claims only. The remainder of the motion is GRANTED.
I. FACTUAL BACKGROUND
The following facts are established by the summary judgment evidence and are undisputed for purposes of this motion, except as noted. Trahan worked at Lowe's from 1993 until October 6, 2000, when she resigned. Her resignation letter stated: "I cannot and I will not tolerate any more of the humiliation, discrimination and prejudice by the under qualified management at Lowe's. This reflects many past and present management officials, all to be announced at a later date!" Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, Record Doc. No. 29, Plaintiff's Exh. 1.
Trahan filed the instant lawsuit on October 8, 2001. She did not file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or the Louisiana Human Rights Commission before filing her complaint in this court.
Plaintiff asserts that she did not know that she was required to file a charge of discrimination with the EEOC until after she filed her pro se lawsuit. Plaintiff's Motion for Leave, Record Doc. No. 34, Plaintiff's Exh. 1, Trahan Affidavit, ¶¶ 7, 10, 11. At some time before she filed suit, she heard about the EEOC and thought that it might provide her some assistance, so she tried approximately three times to contact the EEOC by telephone. Each time she left a voicemail message, but no one returned her calls. Id. ¶ 8. Because she found another job "soon" after resigning from Lowe's and because she lives and works in Houma, she did not take a day off from work to travel to New Orleans to visit the EEOC. Id. ¶ 9.
During a preliminary conference in this case on January 9, 2002, when Trahan was still unrepresented, she appeared before the court and told me about her efforts to contact the EEOC by telephone. I told her that I "had no idea if it is too late for you" to contact the EEOC, but I suggested that she "find the EEOC office . . . and go knock on the door" while she was in New Orleans for the conference. Defendant's Exh. 4, Transcript of Preliminary Conference, at pp. 4-8, 29. I reiterated that "I don't know if it would be worth your while or not." Id. at p. 29.
That same day, Trahan filed a charge of discrimination with the EEOC, alleging sex discrimination based on Lowe's failure to promote her in January 2000 and sexual harassment in June 2000. Defendant's Exh. 5, Notice of Charge of Discrimination. The EEOC dismissed the charge as untimely. Plaintiff's Exh. 6, Dismissal and Notice of Rights dated January 9, 2002.
II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE CLAIMS IN PLAINTIFF'S ORIGINAL PETITION
A. Summary Judgment Standards
Summary judgment is appropriate 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." Fed.R.Civ.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, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
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. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. 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, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249-50 (1986)).
If the movant bears the burden of proof on an issue, either because it is the plaintiff or is asserting an affirmative defense as a defendant, the movant must establish all of the essential elements of the claim or defense to warrant judgment in its favor. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248; Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). An issue is "genuine" if the evidence is sufficient for a rational trier of fact to return a verdict for the nonmoving party. Id.
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 its claim. National Ass'n of Gov't Employees v. City' Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citing Celotex, 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party s case renders all other facts immaterial." Celotex, 477 U.S. at 323.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; "the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint."'" Id. at 713 (quoting Anderson, 477 U.S. at 249).
"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." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069. 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof. assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; 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." Id. (quotation omitted) (emphasis in original).
B. Trahan's Title VII Claim Is Time-Barred
In her original pro se petition, Trahan did not assert any legal basis for her claims. However, her attorney has acknowledged that plaintiff asserts claims for sex discrimination and sexual harassment under Title VII. Lowe's argues that plaintiff's failure to comply with Title VII's administrative exhaustion requirement bars her suit.
Administrative review by the EEOC is usually required before a federal court may review a discrimination complaint brought under Title VII. 42 U.S.C. § 2000e-5(e )(1); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351 (5th Cir. 2001) (citations omitted). In a "deferral" state like Louisiana, an aggrieved person has 300 days from the date of the last act of discrimination to file a charge with the EEOC. 42 U.S.C. § 2000e-5(e)(1); Celestine, 266 F.3d at 351; Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998); Messer v. Meno, 130 F.3d 130, 134 n. 2 (5th Cir. 1997); Griffin v. City of Dallas, 26 F.3d 610, 612 (5th Cir. 1994).
A deferral state is one in which state law prohibits discrimination in employment and a state agency has been established to grant or seek relief for such discriminatory practice. Clark v. Resistoflex Co., 854 F.2d 762, 765 n. 1 (5th Cir. 1988). The Louisiana Commission on Human Rights has been funded and operating since April 1994. making Louisiana a deferral state since that time. La. Rev. Stat. § 51:2233; G. Guidry, Employment Discrimination Claims in Louisiana, 45 La. B.J. 240, 241 (Oct. 1997); G. Huffman, The Louisiana Commission on Human Rights — Now It's for Real. Briefly Speaking, Spring 1995, at 4 (New Orleans Bar Ass'n); see also Clark, 854 F.2d at 765 (applying similar provision of Age Discrimination in Employment Act); Nelson v. Shoney's. Inc., No. 96-2199, 1997 WL 567957, at *7 (E.D. La. Sept. 10, 1997) (Vance, J.) (applying 300-day statute of limitations to complaint of race discrimination in Louisiana); Vaughn v. Amtrak Transp. Serv., No. 95-3570, 1996 WL 363448, at *1 n. 5 (E.D. La. July 1, 1996) (Africk, M.J.) (holding claim untimely if 300-day statute of limitations applies in Louisiana). Although the Fifth Circuit has not yet ruled that Louisiana is a deferral state, it has repeatedly applied the 300-day statute of limitations in cases arising in Texas, which is a deferral state. See, e.g., Messer, 130 F.3d at 134 n. 2; Griffin, 26 F.3d at 612; Washington v. Paths, 868 F.2d 172 (5th Cir. 1989); Urrutia v. Valero Energy Corp., 841 F.2d 123, 125 (5th Cir. 1988).
Because the time limit is a statute of limitations, it is subject to equitable tolling. Hood v. Sears Roebuck Co., 168 F.3d 231, 232 (5th Cir. 1999) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (additional citations omitted).
Trahan thus had 300 days from October 6, 2000, the date she resigned and the last possible date that any act of discrimination or harassment occurred, to file a charge with the EEOC. She did not file a charge until January 9, 2001, long after the 300-day period expired. Her lawsuit is therefore time-barred unless equitable tolling excuses her lateness.
The claimant bears the burden of justifying equitable tolling. One instance in which equitable tolling can apply is "when the EEOC misleads the claimant about the nature of her rights under Title VII." Hood, 168 F.3d at 232. Trahan argues that equitable tolling should apply in this case because (1) the EEOC misled her and lulled her into inaction by failing to respond to approximately three voicemail messages that she left, (2) she was not represented by counsel and (3) she did not know that she was required to file a charge with the EEOC.
"Federal courts have typically extended equitable relief only sparingly." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). In the Fifth Circuit, equitable tolling "is permissible only in rare and exceptional circumstances," United States v. Wynn, No. 01-10660, 2002 WL 992052, at *3 (5th Cir. May 31, 2002) (quotation and citation omitted), such as "when an administrative agency misleads a complainant, particularly one who is without the benefit of counsel." Anderson v. Unisys Corp., 47 F.3d 302, 306 (8th Cir. 1995); see also Rowe v. Sullivan, 967 F.2d 186. 192 (5th Cir. 1992) ("[E]quitable tolling may apply where the claimant has vigorously pursued his [or her] action, but has inadvertently missed deadlines due to his or her lack of sophistication with the procedural requirements of Title VII claims.").
However, "[the courts] have generally been much less forgiving . . . where the claimant failed to exercise due diligence in preserving [her] legal rights." Irwin, 498 U.S. at 96. Furthermore, "[n]either a plaintiff's unfamiliarity with the legal process nor [her] lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390. 392 (5th Cir. 1998) (citing Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991)).
Equitable tolling has been found to be justified, for example, when ambiguous and misleading language in a letter that plaintiff received from the state's Human Rights Department led him to believe that the federal and state deadlines for filing suit were the same, although the federal deadline was actually shorter. Anderson, 47 F.3d at 307; see also Warren v. Department of the Army, 867 F.2d 1156, 1160-61 (8th Cir. 1989) (EEOC's letter was ambiguous and misleading about proper party to sue); Early v. Bankers Life Casualty Co., 959 F.2d 75, 81 (7th Cir. 1992) (EEOC representative incorrectly told plaintiff that filling out questionnaire was all he needed to do to file charge); Martinez v. Orr, 738 F.2d 1107. 1111-12 (10th Cir. 1984) (EEOC letter was ambiguous about finality of EEOC action).
Based on these principles and prior decisions, I find that Trahan has failed to carry her burden to show the existence of rare and exceptional circumstances to justify equitable tolling. Her pro se status and her lack of knowledge of the law do not excuse her failure to act diligently. The EEOC's failures to return three telephone calls, when plaintiff left messages that did not request assistance in filing a claim (she admits she did not know that she was required to file a claim), cannot possibly' constitute affirmatively misleading conduct by the EEOC. Plaintiff's actions consisted of a mere three telephone calls over the course of more than 300 days. She sent no letters and made no personal visits. Yet, when she went to the EEOC in person on January 9, 2002, she was able to file a claim that day. These events indicate that plaintiff was not diligent in pursuing her rights.
Accordingly, there are no material fact issues in dispute that plaintiff failed to exhaust her administrative remedy, and Lowe's is entitled to summary judgment in its favor as a matter of law on her Title VII claims.
C. Trahan's State Law Harassment and Discrimination Claims Are Barred
Lowe's contends that plaintiff's state law claims of sexual harassment and discrimination are barred by her failure to provide defendant with written notice of her intent to file suit within 30 days before filing, as required by the Louisiana Employment Discrimination Law.
A plaintiff who believes he or she has 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. § 23:303(C). The Louisiana Employment Discrimination Law does not by its express terms provide any penalty for noncompliance with this section.
As previously noted, Trahan did not state the legal bases for her claims in her original, pro se petition. In her opposition to Lowe's motion for summary judgment, she asserts that her state law claims arise under the Louisiana Employment Discrimination Law, id. § 23:301 et seq., and the Louisiana Human Rights Act. Id. § 51:2231 et seq.
Plaintiff argues first that, because the Louisiana Human Rights Act contains no prelitigation notice requirement, her claims may proceed under that statute despite the lack of such notice. For the reasons stated in the section of this opinion below concerning plaintiff's motion to amend, I find that the Louisiana Human Rights Act does not provide her with a cause of action for employment discrimination and is therefore inapplicable to the question of notice concerning her sexual harassment and discrimination claims.
Alternatively, Trahan contends that her letter of resignation, dated October 6, 2000, provided sufficient notice to satisfy the Louisiana Employment Discrimination Law's prelitigation notice requirements. I find that Trahan's resignation letter did not provide the mandatory notice required by Section 23:303(C). The section provides that one "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 [and] shall detail the alleged discrimination." Id. § 23:303(C) (emphasis added). The hyperbolic closing of Trahan's letter, "all to be announced at a later date!," is ambiguous and provides no indication that plaintiff intends to pursue court action, nor does the letter give any details about the undefined "discrimination and prejudice" she allegedly experienced.
No Louisiana court has addressed the meaning of either Section 23:303(C) or its virtually identical counterpart in the Louisiana Civil Rights for Handicapped Persons Act, La. Rev. Stat. § 46:2256(B), which also does not by its express terms provide any penalty for noncompliance. However, decisions by various federal district courts in Louisiana that have interpreted these two notice provisions of Louisiana law have consistently held that a claim under either statute must be dismissed if the plaintiff failed to comply with the notice provision, unless the plaintiff had filed a charge of discrimination with the EEOC within the appropriate time period, which effectively accomplished the same goals as the statutory notice under state law. See Dunn v. Nextel So. Corp., No. 01-691-A, 2002 WL 1401673, at *1 (M.D. La. Jan. 8, 2002) (Parker, J.) (dismissing plaintiff's employment discrimination complaint without prejudice for failure to allege compliance with Section 23:303(C)); Brown v. Menszer, No. 99-0790, 2000 WL 1228769, at *2 (E.D. La. Aug. 23, 2000) (Duval, J.) (rejecting plaintiff's argument that "vague verbal warning" could substitute for written notice under Section 46:2256(B) and dismissing plaintiff's handicap discrimination claim for failure to comply with notice provision); Malakoff v. Alton Ochsner Med. Fd., No. 99-3603, 2000 WL 805232, at *2 (E.D. La. June 20, 2000) (Mentz, J.) (plaintiff's state law discrimination claim was "procedurally barred" by her failure to comply with Section 23:303(C)); McIntire v. Kimberly Clark Corp., No. 93- 375, 1994 WL 321004, at *1 (E.D. La. June 28, 1994) (Beer, J.) (EEOC complaint that alleged only discrimination based on age failed to satisfy notice requirement of Louisiana Civil Rights for Handicapped Persons Act); cf. Pugh v. J.C. Penney, No. 95-3846, 1996 WL 263219, at *5 (E.D. La. May 15, 1996) (Wilkinson, M.J.) (plaintiff's pre-suit EEOC charge accomplished purposes of Section 46:2256(B) and precluded dismissal of state law handicap discrimination claim); Snear v. Turnbull Cone Baking Co., No. 93-2761, 1994 WL 34031, at *3-4 (E.D. La. Jan. 23, 1994) (Livaudais, J.) (compliance with EEOC procedures satisfied Section 46:2256(B) because defendant had notice of plaintiff's intent to sue and had sufficient time to make good faith effort to resolve the problem).
La. Rev. Stat. § 46:2256(B) provides:
Any person who believes he has been discriminated against and intends to pursue court action must give the person who has allegedly discriminated written notice of this fact at least 30 days before initiating court action, must detail the discrimination and both parties must make a good faith effort to resolve the dispute before court action.
There is no issue of material fact in dispute that Trahan failed to comply with the literal terms of Section 23:303(C) and failed to file a charge with the EEOC before filing this lawsuit, which might have substituted for the state law notice requirement. Accordingly, defendant's motion for summary judgment is GRANTED. Plaintiff's sex discrimination and sexual harassment claims under Title VII and state law' will be dismissed with prejudice.
III. PLAINTIFF'S MOTION TO AMEND HER COMPLAINT
A. Standard of Review
Trahan seeks leave to file an amended complaint that would clarify her allegations of discrimination and harassment under Title VII and Louisiana law; add an Equal Pay Act claim and state law claims of retaliation, defamation, slander and invasion of privacy; and assert a jury demand.
Rule 15(a) "evinces a bias in favor of granting leave to amend. Unless there is a substantial reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial." Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir. 2000) (citations and quotations omitted). Leave to amend "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), but "is by no means automatic." Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to consider include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment." Id. In addition, where — as here — the court has entered a scheduling order setting a deadline for the amendment of pleadings. Record Doc. No. 25, the schedule "shall not be modified except upon a showing of good cause." Fed.R.Civ.P. 16(b).
Futility in this context means that the amended complaint would fail to state a claim upon which relief could be granted. To determine futility, the court applies the same standard of legal sufficiency as under Fed.R.Civ.P. 12(b)(6).
The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in [her] behalf, the complaint states any valid claim for relief. The court may not dismiss a complaint under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.
Stripling, 234 F.3d at 873 (quotations and citations omitted).
B. Allowing Plaintiff to Amend her Sexual Harassment and Discrimination Claims Would Be Futile
Because the court has held that plaintiff's sexual harassment and discrimination claims under both Title VII and state law are barred, her motion to amend the complaint to clarify those barred claims would be futile. Accordingly, the motion to amend is DENIED as to plaintiff's claims of sexual harassment and discrimination under both Title VII and state law.
C. Plaintiff's Motion to Amend Is Not Barred as Untimely
Low's argues that plaintiff's motion to amend is untimely under the court's Rule 16 scheduling order and that Trahan has not shown good cause to modify the order. Plaintiff's attorney admittedly calculated the filing deadline incorrectly and filed her motion to amend one day late. However, trial in this case is scheduled to begin with jury selection in New Orleans on December 9, 2002 and to resume on December 10, 2002 in Houma. Thus, there appears to be sufficient time for defendant to conduct discovery and prepare its defenses concerning the allegations contained in the amendment before that date. In addition, if the time remaining before trial proves inadequate to permit preparation in response to the amended complaint, a trial continuance may be available upon motion in this case in which no previous trial continuance has been sought or granted.
Although plaintiff had not yet formally moved to amend her complaint to assert a jury demand, her counsel advised the court and defendant's counsel at the preliminary conference on April 1, 2002 that she intended to do so, and defendant's counsel did not oppose that request. Accordingly, the court entered a scheduling order that incorporated a jury trial setting. Record Doc. No. 25.
Under these circumstances, I find neither undue delay. bad faith nor dilatory motive on plaintiff's part. Further, Lowe's has not shown how it would be unduly prejudiced by the amendment. Thus, I find that the late filing by a single day does not bar the motion.
D. Plaintiff May Amend to Add an Equal Pay Act Claim and to Assert a Jury Demand
Lowe's admits that plaintiff has satisfied the minimum pleading requirement for an Equal Pay Act claim and does not oppose plaintiff's amendment to add this claim or to assert a jury demand, except on the Rule 16 untimeliness ground, which the court has already rejected above. Accordingly, plaintiff's motion to amend is GRANTED as to her Equal Pay Act claim and jury demand.
E. Plaintiff May Amend to Add New State Law Claims
Lowe's argues that Trahan's motion to amend to add new state law claims of retaliation, slander, defamation and invasion of privacy should be denied as futile.
Even construing plaintiffs original pro se civil rights complaint broadly, as I am required to do and as I have done, Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994), that complaint in no way attempted to assert claims for retaliation, slander, defamation or invasion of privacy. Record Doc. No. 1, Petition for Damages. These proposed claims in the amended complaint are entirely new.
1. Plaintiff's Proposed Retaliation Claim
Lowe's contends that Trahan cannot assert a retaliation claim under the Louisiana Human Rights Act because those portions of the statute that provided a right of action to redress employment discrimination were repealed in 1997 and replaced by sections of the Louisiana Employment Discrimination Law. Lowe's further contends that the Louisiana Employment Discrimination Law provides no cause of action for retaliation. Thus, defendant concludes, Trahan's assertion of a retaliation claim under either the Louisiana Human Rights Act or the Louisiana Employment Discrimination Law would be futile.
Sections 51:2242 through 2245 of the Louisiana Human Rights Act, which made unlawful discriminatory practices in employment, were repealed by Acts 1997 No. 1409, § 4, effective August 1, 1997, and were replaced by Sections 23:301 et seq. of the Louisiana Employment Discrimination Law. Hook v. Georgia-Gulf Corp., 788 So.2d 47, 49 n. 4 (La.App. 1st Cir.), writ denied, 793 So.2d 200 (La. 2001). Sections 23:301 et seq. were enacted by the same legislative act that repealed Sections 51:2242 through 2245, with the stated intention of consolidating the State's employment discrimination laws into one chapter and removing references to employment discrimination in other sections of the law. La. Rev. Stat. § 23:301, historical and statutory notes.
Plaintiff concedes that certain portions of Louisiana's employment discrimination laws, formerly located in Title 51 of the Louisiana Human Rights Act, were repealed and relocated in Title 23. However, she contends that the Louisiana Human Rights Act still covers her proposed retaliation claim. Under this statute, "[i]t shall be an unlawful practice for a person or for two or more persons to conspire: (1) To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this Chapter." La. Rev. Stat. § 51:2256.
I find that plaintiff cannot state a claim for retaliation under the Louisiana Human Rights Act. She is attempting to state a claim that Lowe's retaliated against her for opposing sexual harassment and discrimination in the workplace. However, the Louisiana Human Rights Act no longer makes employment discrimination unlawful; that is now accomplished by the Louisiana Employment Discrimination Law. The Louisiana Human Rights Act now makes unlawful the following discriminatory practices: (1) in public accommodations and in advertisements of public accommodations, id. §§ 2247, 2248; (2) against breastfeeding mothers, id. § 2247.1; (3) by financial institutions in providing financial services id. § 2254; and (4) in credit transactions. Id. § 2255. Thus, Trahan has not "opposed a practice declared unlawful by this Chapter," La. Rev. Stat. § 51:2256, when she opposed defendant's alleged sexual job discrimination, and she has no cause of action under the Louisiana Human Rights Act.
I also find that the Louisiana Employment Discrimination Law does not appear to provide an employee with an action for redress of retaliation conduct by her employer. However, the Louisiana "whistle-blower" statute, also located in Title 23 and also added in 1997, does provide such a cause of action. La. Rev. Stat. § 23:967(A), (B); McKee v. Gulf States Specialities. Inc., No. 01-1226, 2001 WL 1143167, at *4 n. 2 (E.D. La. Sept. 26, 2001) (Porteous, J.); Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 790 So.2d 725, 733 (La.App. 5th Cir. 2001); Puig v. Greater New Orleans Expwy. Comm'n, 772 So.2d 842. 845 (La.App. 5th Cir. 2000), writ denied, 786 So.2d 731 (La. 2001).
The statute provides: A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law: (1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law. (2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law. (3) Objects to or refuses to participate in an employment act or practice that is in violation of law. B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section.
Because Louisiana law provides plaintiff with a cause of action for retaliation, her motion to amend to add this claim is GRANTED.
2. Plaintiff's Proposed State Law Claims Have Not Prescribed on Their Face
In her proposed amended complaint, Trahan alleges that Lowe's "disclosed confidential and private information about the plaintiff, including the results of her drug testing, to third persons" and that Lowe's "made false statements about the Plaintiff, to third persons." Record Doc. No. 30, Amended Complaint, ¶¶ 13, 14. She also complains, without referring to any specific facts, that defendant's acts were retaliatory. Id. ¶ 19. Trahan does not specify either in her proposed amended complaint or in her affidavit the dates when these tortious acts allegedly occurred. Plaintiff's Reply Memorandum, Record Doc. No. 34, Plaintiff's Exh. 1.
Lowe's contends that plaintiff's claims for retaliation, defamation, slander and invasion of privacy have prescribed and that allowing her to amend her complaint to add them would be futile. Under Louisiana law, claims for retaliation, slander, defamation and invasion of privacy are delictual actions, subject to a one-year liberative prescription. La. Civ. Code art. 3492; Nolan, 790 So.2d at 733 (retaliation); Velez v. Carbonett, 779 So.2d 12, 13 (La.App. 1st Cir. 2000) (slander); Rozas v. Department of Health Human Resources, 522 So.2d 1195, 1196 (La.App. 4th Cir. 1988) (defamation); Martin v. Southern Baptist Hosp., 444 So.2d 1309, 1312-13 (La.App. 4th Cir. 1984) (invasion of privacy). Lowe's argues that all of the conduct alleged in the proposed amended complaint as to these claims occurred before plaintiff resigned on October 6, 2000, and therefore occurred more than one year before plaintiff filed her petition on October 8, 2001.
Because October 6, 2001 fell on a Saturday, the one-year prescriptive period was extended until Monday, October 8, 2001.
Trahan responds that her proposed amendment relates back to the filing date of her original petition. An amendment of a pleading "relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2). "This rule allows a party to amend an operative pleading despite an applicable statute of limitations in situations where the parties to litigation have been sufficiently put on notice of facts and claims which may give rise to future, related claims." Kansa Reinsurance Co. v. Congressional Mortgage Corp., 20 F.3d 1362, 1366 (5th Cir. 1994) (citation omitted).
Relation back of Trahan's amended complaint would not defeat prescription of tortious acts that occurred before October 6, 2000 because plaintiff's claims concerning those acts would have already prescribed one year after each act and thus before she filed her original petition. McGregor v. Louisiana State Univ., 3 F.3d 850, 864 (5th Cir. 1993). The relation back theory permits a party to amend to assert claims that were still viable when the original pleading was filed but which have prescribed since the pleading was filed. Relation back does not offend the purpose of statutes of limitations because the amended claims arose out of the same conduct, transaction, or occurrence, and thus the original pleading served to put the defendant on notice of the claims. Federal Dep. Ins. Co. v. Conner, 20 F.3d 1376, 1385 (5th Cir. 1994). However, Rule 15(a) cannot revive claims that prescribed before the original pleading was filed. McGregor, 3 F.3d at 864. Thus, relation back is not relevant to defendant's argument that plaintiff's state law tort claims prescribed before October 8, 2001.
In support of its contention that all of the tortious conduct alleged in the amended complaint occurred before October 6, 2000, Lowe's cites plaintiff's Supplemental Response to Defendants' [sic] Discovery Requests. Specifically, Lowe's points to Trahan's answer to Interrogatory No. 1, in which she described some incidents when defendant allegedly "harassed Plaintiff because of her sex, by slandering her . . . . The slander included allegations of drug use and theft" in May 2000, in 1995 and from 1994 to 1999. Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Amend Complaint, Record Doc. No. 33, Defendant's Exh. 1.
I do not find plaintiffs supplemental answer to Interrogatory No. 1 dispositive. The interrogatory was not specifically directed to incidents of retaliation, slander, defamation and invasion of privacy because plaintiff had not yet asserted those claims in this action. Rather, Interrogatory No. 1 asked Trahan to describe all alleged "occasions of sexual harassment." Thus, although plaintiff chose to describe some incidents of slander, she was not required to describe in her answer all incidents of retaliation, slander, defamation and invasion of privacy.
Because the dates of all such alleged incidents remain unclear, I cannot say on the current record that it appears beyond doubt that Trahan can prove no set of facts in support of her claims that would entitle her to relief.
Accordingly, plaintiff's motion to amend is GRANTED as to her state law claims of sexual harassment, discrimination, retaliation, defamation, slander and invasion of privacy.
CONCLUSION
For all of the foregoing reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED, and plaintiff's sexual harassment and discrimination claims under both Title VII and state law are dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff's motion to amend is DENIED insofar
as it attempts to clarify or add sexual harassment and discrimination claims under Title VII and Louisiana law.
IT IS FURTHER ORDERED that the motion to amend is GRANTED as to
plaintiff' s requests to assert a jury demand, to add an Equal Pay Act claim and to add state law claims of retaliation, defamation, slander and invasion of privacy.