Currier v. Entergy Services, Inc. et al

Filing 175

ORDER & REASONS granting Griffith's 112 Motion for Summary Judgment & in turn denying Currier's 132 Motion for Partial Summary Judgment on the same issue; Currier's request for a judgment finding that Griffith violated Rule 4.2 isD ENIED; the sole remaining claim against Griffith is thus DISMISSED WITH PREJUDICE. FURTHER ORDER granting Trowbridge's 146 Motion for Summary Judgment & all claims against him are hereby DISMISSED WITH PREJUDICE. Signed by Judge Martin L.C. Feldman on 11/19/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROSEANNE M. CURRIER

CIVIL ACTION

V.

NO. 11-2208

ENTERGY SERVICES, INC., ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court are three motions for summary judgment: (1)
Griffith's motion as to the one remaining claim against him; (2)
Currier's cross-motion as to that same claim; and (3) Trowbridge's
motion for summary judgment as to the claims against him.
reasons

that

follow,

Griffith's

Currier's cross-motion is DENIED.

motion

is

GRANTED,

For the
and

thus

Trowbridge's motion is GRANTED.

All claims against Griffith and Trowbridge are hereby DISMISSED.
Background
The extensive facts of this case are detailed fully in this
Court's previous Order and Reasons granting in part and denying in
part Griffith's motion to dismiss under Rule 12(b)(6).1

This

litigation arises out of a corporate jet pilot’s claims that her
employer,

in

retaliation

for

her

stance

on

aviation

safety,

grounded her without good cause, launched a sham "independent"
investigation into a decades-old minor injury, and after FAAcertified physicians once again gave her a clean bill of health,
contrived a mental health issue that left her grounded permanently.

1

Dated March 14, 2014.
1

On September 2, 2011, Ms. Currier sued Entergy and Trowbridge,
Entergy's former corporate aviation manager, later adding Griffith,
Entergy's

outside

investigator,

as

a

defendant.2

Her

claims

against Entergy are abuse of right, ADA claims for harassment and
discrimination based on perceived disability, Title VII claims for
sex discrimination and retaliation, intentional infliction of
emotional

distress,

and

civil

conspiracy.

She

asserts

that

Trowbridge intentionally inflicted emotional distress on her and
conspired with Entergy and Griffith to commit intentional torts.3
Her remaining claim against Griffith is civil conspiracy.4

2

The case was originally assigned to Section L of this Court; the
defendants filed Rule 12(b)(6) motions to dismiss. On September
30, Judge Morgan granted in part, without prejudice, motions to
dismiss Entergy and Trowbridge.
See Order and Reasons dated
September 30, 2013 (Morgan, J.) (denying Entergy defendants' motion
with respect to Currier's intentional infliction of emotional
distress, fraud, and abuse of right claims; and granting the motion
with respect to Currier's employment discrimination and retaliation
claim, but allowing her to re-plead). She also granted without
prejudice Griffith's motion to dismiss.
See Order and Reasons
dated September 30, 2013 (Morgan, J.) (granting without prejudice
Griffith's motion to dismiss Currier's abuse of right and
intentional infliction of emotional distress claims, allowing
Currier to file an amended complaint). Currier filed her second
supplemental and amended complaint in October 2013.
3

Originally, she also brought claims against Trowbridge for fraud
and invasion of privacy, but she states in her response to
Trowbridge's motion for summary judgment that she no longer pursues
those claims. Those claims are thus dismissed.
4

She asserted the following claims against Griffith: intentional
infliction
of
emotional
distress,
fraud
or
intentional
misrepresentation, negligent misrepresentation, invasion of
privacy, and civil conspiracy. This Court dismissed all the claims
against Griffith but civil conspiracy. See Order and Reasons dated
March 14, 2014.
2

Now, Griffith moves for summary judgment as to the one
remaining claim against him, that of civil conspiracy. Currier has
filed

a

cross-motion

for

summary

judgment

as

to

the

civil

conspiracy claim and she also moves for a judgment that Griffith
violated Rule 4.2 of the Rules of Professional Conduct. Trowbridge
also moves for summary judgment as to the IIED and conspiracy
claims against him.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine dispute of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish

3

an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claim. Id. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at
trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).

Finally, in evaluating the summary

judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.

Anderson, 477 U.S. at 255.

II.
A. Griffith and Civil Conspiracy
Griffith

seeks

dismissal

of

predicated on civil conspiracy.

Currier’s

liability

theory

Currier alleges that Griffith

conspired with Entergy to commit intentional torts, namely abuse of
right and intentional infliction of emotional distress.5
Louisiana does not recognize a distinct cause of action for
civil conspiracy, but "[h]e who conspires with another person to
commit an intentional and willful act is answerable, in solido,

5

At another point in her complaint, Currier alleges that Griffith
is solidarily liable with Entergy and Trowbridge for “all of the
intentional torts set forth herein.”
4

with that person for the damage caused by that act." LA. CIV. CODE
ANN. art. 2324 (2008). The actionable element of a civil conspiracy
is

the

underlying

intentional

tort

agreement between the wrongdoers.

committed

pursuant

to

an

Able Sec. and Patrol, LLC v.

State of Louisiana, 569 F. Supp. 2d 617, 636 (E.D. La. 2008). In
Louisiana, a conspiracy may be proven by circumstantial evidence,
as "conspirators rarely formulate their plans in ways susceptible
of proof by direct evidence."

Silver v. Nelson, 610 F. Supp. 505,

517 (E.D. La. 1985) (quoting Thomas v. City of New Orleans, 687
F.2d 80, 83 (5th Cir. 1982)).

A plaintiff must show an unlawful

act and assistance or encouragement that amounts to a conspiracy to
commit the underlying tort. Chrysler Credit Corp. v. Whitney Nat’l
Bank, 51 F.3d 553, 557 (5th Cir. 1995).

In related contexts,

courts have held that employees or agents are legally incapable of
conspiring with their employers or principals because in many cases
the law doctrinally considers principals and their agents to be
single entities incapable of conspiring with each other.

See

Rhyce v. Martin, 173 F. Supp. 2d 521, 532-533, 536 (E.D. La. 2001)
(Clement, J.) (discussing the single entity theory in the context
of 42 U.S.C. § 1985, 42 U.S.C. § 1986, and Sherman Antitrust
claims). The question whether or not agents and related principals
may conspire with each other to create solidary liability under
Louisiana Civil Code article 2324 remains unsettled.

5

Id. at 536.

Currier bases her conspiracy claim on several allegations: (1)
Griffith and Entergy’s in-house counsel conducted interviews with
the plaintiff without her counsel; (2) during these meetings,
Griffith acted aggressively, in a manner intended to elicit an
emotional response that could be used as an excuse to inquire into
Currier’s mental health; (3) according to Griffith’s own report,
Entergy’s in-house counsel was closely involved in the entire
internal investigation; (4) Griffith’s report contained some of the
same misrepresentations that appeared in the Entergy letter to the
FAA asking for their assistance in investigating Currier’s physical
injury;

(5)

Griffith’s

report

contained

many

intentional

misrepresentations that Entergy then used to justify grounding the
plaintiff; (6) Griffith and Entergy employees obtained Currier’s
medical records and possibly solicited opinions about her mental
health by speaking with Dr. Rabito even after he sent a letter of
findings clearing her for flight duty; (7) Griffith’s report does
not seriously address the substance of Currier’s ethics complaint,
but focuses almost entirely on her own character; and (8) Entergy
used the Griffith report to prejudice the evaluating psychiatrist
as to Currier’s mental state.
Griffith responds that Currier has no evidence to establish
(a) the existence of a conspiracy, (b) that Griffith knowingly
agreed to join any conspiracy, (c) that Griffith agreed to the
intended outcome or unlawful or tortious result of the conspiracy,

6

or (d) that Currier sustained injury from the allegedly conspired
act.

The

sole

intentionally

issue

agreed

is

to

whether

join

a

Griffith

conspiracy

knowingly

with

and

Entergy

to

intentionally inflict emotional distress upon Currier or to abuse
its rights and intended that outcome.
This Court cannot find that there is a genuine issue of
material

fact

Griffith.

regarding

"[O]nly

Currier's

evidence–not

conspiracy

argument,

not

claim

against

facts

in

the

complaint–will satisfy" the nonmoving party's burden to show a
genuine issue of material fact.

Solo Serve Corp. v. Westowne

Assoc., 929 F.2d 160, 164 (5th Cir. 1991).

Despite the extensive

discovery in this bitter three-year-old case, there is no evidence
that a conspiracy existed, that Griffith knowingly agreed to join
it, or that he agreed to the intended outcome of the conspiracy.
Griffith

was

hired

as

an

outside

investigator

to

look

into

Currier's complaint, an investigation that was required by law.
Entergy gave Griffith unrestricted access to the witnesses and
documents to conduct his investigation, as was to be expected, and
did not indicate what conclusions to reach, or, on this record,
otherwise

suggest

any

desired

outcome

of

his

investigation.

Currier testified and has admitted that the existence of the
conspiracy was simply her own personal belief.
enough to sustain a claim against Griffith.
Whitney

Nat'l

Bank,

99

F.3d

1135

7

(5th

Patently, not

See Bickerstaff v.
Cir.

1996)

(summary

calendar), 1996 WL 595654, at *3. Rather than direct this Court to
admissible summary judgment evidence sufficient to satisfy her
burden of proof on each element of conspiracy, the plaintiff lists
several

generalized

assertions

that

she

contends

constitute

sufficient "circumstantial evidence" to deny summary judgment. The
record before the Court is barren of her assertions.

Currier

complains about various aspects of Griffith's investigation and
report, but whether he should have researched certain issues more
or included or excluded certain facts from his report falls far
short to support a claim of conspiracy to commit intentional
infliction of emotional distress or abuse of rights.

This Court

cannot infer conspiracy where the evidence does not support such a
claim.
For the same reasons, Currier's cross-motion on the conspiracy
claim against Griffith fails.
B. Griffith and Rule 4.2
Currier moves for a judgment that Griffith violated Rule 4.2
of the Louisiana Rules of Professional Conduct by interviewing
Currier without her counsel's presence or consent.

Rule 4.2

states, "Unless the lawyer has the consent of the other lawyer or
is authorized to do so by law or a court order, a lawyer in
representing a client shall not communicate about the subject of
the representation with . . . a person the lawyer knows to be
represented by another lawyer in the matter."

8

Griffith contends

that the plaintiff's request must be denied because there is no
cause of action under Rule 4.2, Rule 4.2 does not apply because
Griffith was working as an outside investigator, and even if it
did, Griffith had consent to speak with Currier without her counsel
because her counsel knew about the meetings but chose not to
attend.6
Currier recognizes that there is no Rule 4.2 claim within the
meaning of Federal Rule of Civil Procedure 56, but she suggests
that

resolution

of

this

issue

may

limitation of evidence at trial.
applicable,

are

more

appropriately

impact

the

exclusion

or

Such evidentiary issues, if
addressed

in

a

motion

in

limine.7
Moreover, Griffith contends that Rule 4.2 does not apply when
an attorney acts as an investigator rather than as an attorney.
Ryland v. Taylor, Porter, Brooks & Phillips, 496 So. 2d 536, 541-42
(La. Ct. App. 1st Cir. 1986) (finding no ethics violation without

6

This Court does not reach whether Griffith had consent to speak
with Currier, because the Rule 4.2 request is flawed in other ways.
It seems questionable, however, that Griffith is correct in
contending that an attorney would be required to intervene in the
opposing counsel's attempt to violate Rule 4.2 for that rule to be
violated.
7

Magistrate Judge Wilkinson refused to exclude recorded interviews
based on an alleged Rule 4.2 violation, finding that "[a]n
exclusionary policy frustrates truth and does not punish the
ethical violation, but works against the client . . . . An ethical
violation ought to be dealt with by sanctions against the errant
attorney." In re Katrina Canal Breaches Consl. Litig., 2008 WL
2066999 (E.D. La. May 14, 2008).
9

proof of some overt act that only an attorney would undertake). If
the ethics rules do apply, Griffith suggests that Mr. Hyatt,
Currier's counsel, may have to withdraw from the case if his
consent to communications is at issue.

Rather than parse out this

unseemly issue, this Court denies the request for a judgment that
Griffith violated Rule 4.2, because the Rule simply does not give
rise to an independent claim, and any evidentiary issues should be
addressed in a proper evidentiary motion.
C. Trowbridge and Civil Conspiracy
Trowbridge

moves

for

summary

judgment

as

to

the

civil

conspiracy claim against him. First, Trowbridge asks this Court to
find as a matter of law that Trowbridge cannot conspire with his
employer Entergy under the single entity doctrine.

Although this

argument is persuasive, for largely the same reasons given in this
Court's previous Order and Reasons denying Griffith's motion for
judgment

on

the

pleadings,8

this

Court

declines

to

rule

as

Trowbridge wishes without guidance from the Louisiana Supreme Court
on this disputed issue of state law.
Alternatively, Trowbridge contends that Currier has come
forward with no evidence that gives rise to an issue of material
fact as to whether he entered into an agreement to commit a

8

Dated September 10, 2014.
10

tortious act or whether he intended that act's result or outcome.9
This Court agrees.

In her statement of material facts, Currier

generally, once again, asserts, without citing the record, that
"the totality of the circumstances and actions by Mr. Trowbridge
show agreement to the conspiracy."

Trowbridge highlights that the

entire section of Currier's opposition alleging that Trowbridge was
a co-conspirator is devoid of citation to evidence.

This Court

cannot rely on nothing but "[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and
legalistic argumentation."

Pioneer Exploration, LLC v. Steadfast

Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014).

This record is

replete with angry allegations, but at no point does Currier allude
to evidence of an agreement to commit a tortious act or an
agreement as to that act's intended outcome.

See Raz v. Oaks, No.

02-30054, 2002 WL 31049485, at *3 (5th Cir. Sept. 5, 2002) ("Raz's
passing references to the private defendants in his brief are mere
conclusions

and

speculation

about

the

conspiracy Raz believes is targeting him.").

broad

and

pervasive

The civil conspiracy

claim against Trowbridge fails.

9

Trowbridge notes that Currier fails to address uncontested fact
26: "There is no evidence that Trowbridge intended to cause Currier
severe emotional distress." Under Local Rule 56.2, this omission
constitutes an admission by Currier. For the sake of completion,
the Court will nonetheless consider Currier's contentions on the
issue.
11

D. Trowbridge and Intentional Infliction of Emotional Distress
Finally, Trowbridge moves for summary judgment as to the
intentional infliction of emotional distress claim.

An IIED claim

requires a showing that: (1) the defendant's conduct was extreme
and outrageous; (2) the plaintiff's emotional distress was severe;
and (3) the defendant desired to inflict severe emotional distress
or

knew

that

severe

emotional

distress

would

substantially likely to result from his conduct.

be

certain

or

McCoy v. City of

Shreveport, 492 F.3d 551, 563 (5th Cir. 2007). Trowbridge contends
that the evidence fails to give rise to a genuine issue of material
fact as to any of these elements.
fails

to

show

that

the

This Court agrees.

defendant's

conduct

was

This record
extreme

and

outrageous, and for this reason, finds it unnecessary to reach the
other elements.
Extreme and outrageous conduct is "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 society." Id. Currier contends that Trowbridge caused
her severe emotional distress by sending the letter to the FAA,
speaking with Dr. Rabito, grounding her, and assigning her certain
administrative duties.
Currier claims that Trowbridge's letter to the FAA and his
speaking with Dr. Rabito form part of his "extreme and outrageous
conduct."

The Court does not find that Trowbridge's request for

12

information from the FAA showing that Currier's hand injury did not
pose a problem–especially when Currier initially blamed her flight
issues on her old hand injury–is inappropriate.

Trowbridge asked

Currier to obtain such documentation, and when she did not do so,
he attempted to do so himself.

His conversation with Dr. Rabito

about Currier's ability to fly is similarly not "beyond all
possible bounds of decency."
While grounded, Currier was assigned various tasks, such as
Xeroxing, collecting newspapers at the front gate, and entering
bills.

Currier described this as "not in keeping with what pilots

do" and "like being a janitor," though she did admit that these
tasks could be part of a pilot's collateral duties. She found this
work to be demeaning because she had to do it in front of her
colleagues, board members, and regular passengers, who would ask
why she was not flying.

She performed these collateral tasks for

20-40 minutes each day, and the rest of her day was spent "staring
at the walls."

When she complained about the nature of her work

after six weeks, she was permitted to take leave, and with full
pay.
Currier likens her situation when grounded to that of the
employee in Wilson v. Monarch Paper Co., 939 F.2d 1138 (5th Cir.
1991).

There, an executive manager was demoted to an entry level

warehouse supervisor, and his primary duty became housekeeping
chores, including "cleaning up after the employees in the warehouse

13

cafeteria during their lunch hour."
seventy-five

percent

of

his

939 F.2d at 1145.

time

performing

these

He spent
"menial,

janitorial duties." Id. Unlike Wilson, the Court must underscore,
Currier retained her title and salary, and was temporarily assigned
collateral duties consistent with those assigned to other pilots
and even to herself before her grounding.
Parking

El

Paso,

Inc.,

970

F.2d

1372,

See Ramirez v. Allright
1377

(5th

Cir.

1992)

(distinguishing Wilson because although the plaintiff in Ramirez
was demoted from a supervisor to a parking lot attendant, his
salary remained intact and his duties as an attendant "were basic
duties that all parking lots attendants were required to perform,
. . . [were] duties that [the defendant] required its other
supervisors to do on occasion, and, indeed, were duties that [the
defendant] had often called upon [the plaintiff] to do himself
before his demotion").

Her change in employment conditions while

grounded is not "extreme and outrageous" as to support an IIED
claim.

Thus, this claim fails.
III. Conclusion

For the aforementioned reasons, IT IS ORDERED that Griffith's
motion

for

summary

judgment

is

hereby

GRANTED,

and

Currier's cross-motion on the same issue is DENIED.

in

turn

Currier's

request for a judgment finding that Griffith violated Rule 4.2 is
DENIED.

The

sole

remaining

claim

DISMISSED WITH PREJUDICE.

14

against

Griffith

is

thus

IT IS FURTHER ORDERED that Trowbridge's motion for summary
judgment

is

GRANTED,

and

all

claims

against

him

are

hereby

DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, November 19, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

15