Summary
In Weathers, the court held that the plaintiff's allegations that her supervisor made constant, racially-motivated derogatory remarks to her, including racial slurs and comments about "lazy black employees," were sufficient to state a claim for intentional infliction of emotional distress.
Summary of this case from Saketkoo v. Tulane Univ. Sch. of Med.Opinion
CIVIL ACTION NO. 02-717 SECTION "N"
July 31, 2002
ORDER AND REASONS
Before the Court is a Motion to Dismiss filed by defendant Marshalls of MA, Inc. ("Marshalls") and joined in by defendants Becky Hebert and Toni Miller. For the reasons that follow, the motion is DENIED IN PART, in that it is denied with respect to plaintiff's defamation claim against Marshalls, Hebert, and Miller and her intentional infliction of emotional distress claim against Hebert and Marshalls. It is GRANTED IN PART, in that it is granted in all other respects.
I. BACKGROUND
Plaintiff, Yolanda Weathers, brings this suit against Marshalls and four of its employees, seeking damages for alleged violations of Title VII of the Civil Rights Act and the Louisiana Employment Discrimination Law ("LEDL"), as well as under state tort theories of negligence, defamation, and intentional infliction of emotional distress. Plaintiff alleges that Becky Hebert, assistant manager of Marshalls' Slidell, Louisiana store, along with other white store employees, berated plaintiff with constant racial epithets, derogatory remarks based on race, and other comments allegedly calculated to upset plaintiff during her pregnancy. She claims that while on medical leave related to her pregnancy, she "understood that she would not be welcomed back to her position" and submitted a letter of resignation. See Am. Compl. at ¶ 23.
La. Rev. Stat. §§ 331-34, 341-42.
II. LAW AND ANALYSIS
Marshalls, Hebert, and Miller move under Rule 12(b)(6) to dismiss all of plaintiff's claims except for the state and federal race discrimination claims against Marshalls. The movants argue: (1) that Title VII and its Louisiana counterpart give plaintiff no cause of action against the individual defendants for employment discrimination; (2) that this Court has no jurisdiction over plaintiff's federal pregnancy discrimination claim because plaintiff filed no EEOC charge for pregnancy discrimination; (3) that even if the Court has jurisdiction, plaintiff has failed to allege a factual basis for a pregnancy discrimination claim under either federal or state law; (4) that plaintiff has failed to allege any facts that would support a claim by plaintiff's minor child against the defendants under any theory; (5) that plaintiff's negligence claim is barred by Louisiana's worker's compensation law; (6) that, because each of plaintiff's claims arose in a workplace setting, Title VII and its Louisiana counterpart supersede any tort cause of action plaintiff might otherwise have; (7) that the acts alleged are not sufficiently "extreme and outrageous" to support a claim for intentional infliction of emotional distress; (8) that none of the alleged statements can be considered defamatory and, even if they could, they are privileged because of the workplace setting; and (9) that Marshalls cannot be held vicariously liable for the alleged tortious acts of its employees because committing intentional torts such as defamation was not within the employees' assigned job duties. The Court finds arguments (1) through (5) to be well-founded. Argument (7) is meritorious only as to movant Miller. The remaining arguments are without merit.
A. Standard for Dismissal Under Rule 12(b)(6):
"A 12(b)(6) motion to dismiss should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159 (1986); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) ("A dismissal will not be affirmed if the allegations support relief on any possible theory."). In making this determination, the Court "must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff." Indest, 164 F.3d at 261; Campbell, 781 F.2d at 442 ("the complaint is to be liberally construed in favor of the plaintiff"). "All questions of fact and any ambiguities in the current controlling substantive law must be resolved in the plaintiff's favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
B. Claims Against Individual Employees for Employment Discrimination:
Title VII of the Civil Rights Act of 1964 makes it unlawful for an "employer" to "discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's race [or] sex . . . ." 42 U.S.C. § 2000e-2(a)(1). In the Fifth Circuit, "there is no individual liability for employees under Title VII." Smith v. Amedisys Inc., ___ F.3d ___, 2002 WL 1484494 at *11 (5th Cir. Jul 26, 2002) (citing Indest, 164 F.3d at 262 (5th Cir. 1999)). The Fifth Circuit and Louisiana state courts have reached the same conclusion with respect to claims brought under the LEDL. Id.; see also Devillier v. Fidelity Deposit Co. of Maryland, 709 So.2d 277, 280-81 (La.Ct.App. 3d Cir.), writ denied, 720 So.2d 680 (La. 1998). Accordingly, plaintiff has no viable claim against the individual defendants under either Title VII or the LEDL.
Although Title VII's definition of "employer" includes "any agent" of an employer, Congress' purpose in including agents "was simply to incorporate respondeat superior liability into Title VII," not to impose liability on co-employees. Indest, 164 F.3d at 262; Smith, 2002 WL 1484494 at *11. Thus, where a plaintiff has sued her employer under Title VII or the LEDL, she may not also maintain a discrimination claim against the employer's agents — either in their official capacities or as individuals. Smith, 2002 WL 1484494 at *11; Indest, 164 F.3d at 262.
C. Pregnancy Discrimination:
The Pregnancy Discrimination Act of 1978 ("PDA") "amended Title VII by explicitly including discrimination based on pregnancy and related medical conditions within the definition of sex discrimination." Stout v. Baxter Healtheare Corp., 282 F.3d 856, 859 (5th Cir. 2002). Thus, an employer must treat a woman affected by pregnancy, childbirth, or related medical conditions "`the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.'" Id. (quoting 42 U.S.C. § 2000e(k)). The LEDL likewise prohibits employers from discriminating against female employees affected by pregnancy, childbirth, or related medical conditions. See La. Rev. Stat. § 23:341-42.
Plaintiff's pregnancy discrimination claims are deficient in two respects. First, her federal claim is deficient because she has not exhausted her administrative remedies with respect to that claim. "It is well-settled that courts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies." National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994). "The suit filed may encompass only the discrimination stated in the charge itself or developed in the course of a reasonable . . . investigation of that charge" by the Equal Employment Opportunity Commission ("EEOC"). Id. at 712 (internal quotations omitted). Here, the September 24, 2001 charge (the only charge on which the EEOC has completed its investigation), alleges only that Marshalls discriminated against plaintiff "because of [her] race, Black." Def. Exh. A. It contains no charge of discrimination based on sex or pregnancy. Nor has plaintiff argued that the EEOC's investigation of the September 2001 charge actually encompassed pregnancy discrimination allegations. Accordingly, this Court has no jurisdiction over plaintiff's pregnancy discrimination claims to the extent they are brought under Title VII.
In her sur-reply memorandum, plaintiff informed the Court that she filed a second EEOC charge on July 19, 2002, which did allege pregnancy discrimination. However, it does not appear from the record that the EEOC has completed its investigation of this charge.
Second, plaintiff's complaint contains no allegations suggesting a basis for relief under either the PDA or its Louisiana counterpart. She alleges that Ms. Hebert and other employees made remarks "calculated to upset her during her pregnancy" and "other slanderous and offensive remarks . . . suggesting she was not capable of performing her work." See Am. Compl. at ¶¶ 19-20. However, she does not allege that any of these remarks were pregnancy related or made because she was pregnant. Nor does she describe any other act or statement that could be construed as discriminatory treatment based on pregnancy. She asserts the legal conclusion that the defendants "refused to provide her with reasonable accommodations." Id. at ¶ 19. However, she alleges no facts to support this conclusion. Accordingly, the Court finds that plaintiff's complaint is insufficient to state a claim for pregnancy discrimination under either federal or state law.
D. Claims on Behalf of Minor Child:
Plaintiff states in her complaint that she is suing individually and on behalf of her minor child, Summer Weathers, with whom she was pregnant during her tenure at Marshalls. However, the complaint contains no allegations that would support a claim on the child's behalf. Nor does it contain a single allegation asserting harm or damage suffered by the child. Thus, plaintiff has failed to state a claim for which relief may be granted in favor of her minor child.
E. Tort Claims in a Workplace Setting:
Movants are correct that Louisiana's worker's compensation statute bars any negligence cause of action that plaintiff might otherwise have against her former employer and co-employees. See La. Rev. Stat. § 23:1032. Movants are also correct that violations of anti-discrimination laws do not of themselves give rise to general tort liability, although they might meet the definition of "fault" under Civil Code article 2315. See, e.g., Gluck v. Casino America, Inc., 20 F. Supp.2d 991, 994-95 (W.D. La. 1998). To hold otherwise would abrogate the legislative remedial scheme for redressing employment discrimination. Id. at 995. However, nothing in the worker's compensation statute, the anti-discrimination statutes, or the cases cited by movants impinge on plaintiff's right to assert recognized intentional tort claims (e.g., defamation and intentional infliction of emotional distress) against the defendants. See, e.g., Gluck, 20 F. Supp.2d at 995 ("A plaintiff seeking to proceed against his employer under Article 2315 need only allege the breach of a legally recognized duty (such as the prohibition against intentional infliction of emotional distress) for which the state legislature has not specifically provided a remedial scheme."); La. Rev. Stat. § 23:1032(B) ("Nothing in this Chapter shall affect . . . the liability, civil or criminal, resulting from an intentional act.").
F. Intentional Infliction of Emotional Distress:
Movants argue that plaintiff has failed to state a claim for intentional infliction of emotional distress because none of the acts alleged are sufficiently "extreme and outrageous" to give rise to liability under that theory. As to defendant Miller, the Court agrees. "Although recognizing a cause of action for intentional infliction of emotional distress in a workplace setting," Louisiana courts have "limited the cause of action to cases which involve a pattern of deliberate, repeated harassment over a period of time." Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1026 (La. 2000). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." ld. at 1022. With respect to Miller, plaintiff's only allegation is that she "made slanderous and offensive remarks about Ms. Weathers, suggesting she was not capable of performing her work." See Am. Compl. at ¶ 20. Even with the liberal construction required under Rule 12(b)(6), this allegation cannot be read to meet the strict standard of Nicholas.
With respect to Becky Hebert, however, the Court finds that the complaint passes muster at this Rule 12(b)(6) stage. Plaintiff alleges that Hebert made constant derogatory remarks to plaintiff because of her race, including racial slurs and comments about "lazy black employees." See Am. Compl. at ¶ 14. Construing these allegations liberally in plaintiff's favor, the Court finds that plaintiff has alleged a pattern of repeated harassment by Hebert that, if true, would be regarded as atrocious and utterly intolerable in this civilized community.
G. Defamation:
The movants argue that plaintiff's defamation claims should be dismissed because the statements alleged are not defamatory and are privileged. Both arguments fail.
"In order to prevail in a defamation action, the plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages." Sassone v. Elder, 626 So.2d 345, 350 (La. 1993). A defamatory statement is one that tends to harm the person's reputation, deprive the person of public confidence in her occupation, lower her in the estimation of the community, or deter third persons from associating or dealing with her. Id. at 352; Davis v. Borskey, 660 So.2d 17, 22 (La. 1995). The question of whether a statement is capable of a defamatory meaning is one for the court and "is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense." Sassone, 626 So.2d at 352. To satisfy the publication element, the words must have been communicated "to someone other than the plaintiff." Bell v. Rogers, 698 So.2d 749, 754 (La.Ct.App. 2d Cir. 1997).
Movants argue that the statements alleged are merely casual remarks and, thus, are not defamatory. The Court disagrees. Nothing in plaintiff's complaint suggests that the statements were made in a casual manner. Moreover, the Court finds that the statements alleged (e.g., comments about "lazy black employees" and statements that plaintiff was not capable of performing her work) could be reasonably understood as intended to harm the plaintiff's reputation, to deprive her of public confidence in her occupation, and deter others from dealing with her. Thus, they survive scrutiny under Rule 12(b)(6).
Movants second argument is that the alleged communications are privileged and, thus, fail to state a claim for defamation. Conditional privilege is a defense to defamation. "Otherwise defamatory publication enjoys a qualified conditional privilege if made in good faith, on any subject matter in which the person communicating has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty." Ruffin v. Wal-Mart Stores, Inc., 818 So.2d 965, 967 (La.Ct.App. 1st Cir. 2002). "A statement is made in good faith when it is made with reasonable grounds for believing it to be true." Id. at 967-68. An employer can invoke the conditional privilege defense if his statement about an employee regards a subject in which the employer has a interest or duty, is made to a person having a corresponding interest or duty, and is made in good faith. The elements of the defense, however, do not appear on the face of the complaint in this case. Accordingly, it cannot form a basis for dismissal at this pleading stage.
Certain Louisiana courts have gone so far as to hold that the defense may never serve as a basis for dismissal at the pleading stage. See, e.g., Farria v. La Bonne Terrebonne of Houma, Inc., 476 So.2d 474, 475 (La.Ct.App. 1st Cir. 1985) ("The protection afforded an employer by the defense of qualified privilege may be raised in a motion for summary judgment . . . or by answer and then taken up on the merits . . . . It cannot, however, be raised on an exception of no cause of action.").
H. Respondeat Superior Liability for Intentional Torts of Employees:
Marshalls makes the final argument that the intentional tort claims against it should be dismissed because the alleged conduct was not within the actors' assigned job duties. Marshalls is correct that an employer will not be held vicariously liable "merely because his employee commits an intentional tort on the business premises during working hours." Baumeister v. Plunkett, 673 So.2d 994, 996 (La. 1996). In determining an employer's vicarious liability, the court must also determine whether the tortious act was "primarily employment rooted" and/or "was reasonably incidental to the performance of the employee's duties." Id. at 996-97. However, conduct is not automatically removed from the scope of employment merely because it constitutes an intentional tort. See, e.g., LeBrane v. Lewis, 292 So.2d 216, 218-19 (La. 1974) (employer held vicariously liable for stabbing of discharged employee where conduct occurred while actor was "at least partially actuated by his purpose of acting for his employer in the discharge of the recalcitrant co-employee" such that risk was "fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests"). It is not evident from the complaint that the employees' actions were outside the scope of their employment. Thus, this argument cannot serve as a basis for dismissal at this stage of the proceedings.
H. Leave to Amend:
Plaintiff asks that she be given leave to amend her complaint in the event the Court finds it deficient in any respect. Rule 15(a) of the Federal Rules of Civil Procedure requires that leave to amend "shall be freely given when justice so requires," and the Fifth Circuit has cautioned that "this mandate is to be heeded." Lowrey v. Texas A M Univ. Syst., 117 F.3d 242, 245 (5th Cir. 1997). "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Id. "In the absence of any apparent or declared reason — such as 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 by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.'" Id. At this early stage of the proceeding, the Court can find no reason why leave to amend should not be granted. If plaintiff in good faith can cure the deficiencies outlined herein, then she may do so within twenty (20) days.
III. CONCLUSION
Accordingly, for the foregoing reasons, the Motion to Dismiss filed by defendant Marshalls and joined in by defendants Becky Hebert and Toni Miller is DENIED IN PART, in that it is denied with respect to plaintiff's defamation claim against Marshalls, Hebert, and Miller and her intentional infliction of emotional distress claim against Marshalls and Hebert; and GRANTED IN PART, in that it is granted in all other respects, without prejudice to plaintiff's right to amend the complaint within twenty (20) days.