Currier v. Entergy Services, Inc. et al
Filing
202
ORDER & REASONS granting in part and denying in part 184 Motion for Summary Judgment, as stated herein. Signed by Judge Martin L.C. Feldman on 12/18/2014. (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 is Entergy's motion for summary judgment.
For the reasons that follow, the motion is GRANTED as to the abuse
of
right
claim,
and
DENIED
as
to
the
sexual
harassment
and
intentional infliction of emotional distress claims.1
Background
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 FAA-certified physicians once again gave her a clean bill of
health, contrived a mental health issue that left her grounded
permanently.
The extensive facts are laid out in this Court's
previous Order and Reasons, dated March 14, 2014.
After more than
three years of considerable motion practice and discovery, and
dismissal of the claims against the other defendants, this Court
has before it the last claims remaining in this lawsuit.
1
The plaintiff no longer pursues her claims for intentional
discrimination under the ADA, retaliation, and fraud; these claims
are thus summarily dismissed.
1
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
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
2
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.
The
Court
begins
by
noting
that
the
contours
of
the
plaintiff's sexual harassment claim and Entergy's arguments against
it
are
not
clear.
Sexual
harassment
is
a
form
of
sex
discrimination. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
64-65 (1986). A plaintiff bringing a sexual harassment claim under
Title VII must prove: (1) that she belongs to a protected group;
(2) that she was subjected to unwelcome harassment; (3) that the
harassment
complained
of
was
based
upon
sex;
(4)
that
the
harassment complained of affected a term, condition, or privilege
of employment; and (5) that the employer knew or should have known
of the harassment and failed to take prompt, remedial action.
See
McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir.
1998) (citing Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th
Cir. 1982) (applying these factors to a hostile work environment
claim based on sexual harassment)). An employer can be vicariously
liable for a supervisor's harassment in two circumstances.
3
The
first situation, a quid pro quo case, exists when "a supervisor
takes a tangible employment action based on, for example, a
subordinate's refusal to accede to sexual demands."
State Univ., 133 S. Ct. 2434, 2448 (2013).
liability for the employer.
Id.
Vance v. Ball
This results in strict
The second situation, a hostile
work environment case, exists when no such tangible employment
action is taken.
Id.
There, an employer escapes vicarious
liability if it can establish, as an affirmative defense, that (1)
the employer exercised reasonable care to prevent and correct any
harassing behavior and (2) that the plaintiff unreasonably failed
to take advantage of the preventive or corrective opportunities
that
the
employer
provided.
Burlington
Industries,
Inc.
v.
Ellerth, 524 U.S. 742, 765 (1998); Faragher v. Boca Raton, 524 U.S.
775, 807 (1998).
This is known as the Ellerth/Faragher defense.2
2
The dispute between the parties as to the threshold availability
of the Ellerth/Faragher defense shows the uncertainty surrounding
this claim. The plaintiff, for example, contends that the defense
is unavailable because Trowbridge was her supervisor, when in fact
the defense would be unavailable if Trowbridge were not her
supervisor. Whether Entergy has the possibility of alleging the
defense depends instead on whether Trowbridge took tangible
employment action.
If he did, Entergy is strictly liable.
Assuming that this is a sexual harassment claim and that Trowbridge
did not take tangible employment action, the parties then dispute
whether Griffith's investigation satisfies the first prong of the
Ellerth/Faragher defense and relieves Entergy of liability.
Entergy contends that because it hired an outside investigator,
Griffith, to look into Currier's complaints, it took "reasonable
care to prevent and correct any harassing behavior." But Entergy
does not mention the second prong of the affirmative defense, and
it does not offer any evidence that might show that Currier
"unreasonably failed to take advantage of the preventive or
corrective opportunities" that it provided. Both sides' handling
4
Sexual harassment, however, is not the only form of sex
discrimination.
Title VII of the Civil Rights Act prohibits
discrimination on the basis of sex generally.
et seq.
42 U.S.C. § 2000e,
To establish a prima facie case of discrimination, the
plaintiff must show that her employer took adverse employment
action motivated by her sex.
See McCoy v. City of Shreveport, 492
F.3d 551, 556 (5th Cir. 2007) (applying one version of this general
test).3 "Adverse employment actions include discharges, demotions,
refusals to hire, refusals to promote, and reprimands."
City of Garland, 205 F.3d 150, 157 (5th Cir. 2000).
Breaux v.
A Title VII
plaintiff carries the initial burden of showing actions taken by
the employer from which one can infer, if such actions remain
unexplained, that it is more likely than not that such actions were
based
on
a
discriminatory
criterion
illegal
under
Teamsters v. United States, 431 U.S. 324, 358 (1977).
the
Act.
The central
focus is always whether the employer is treating "some people less
favorably than others because of their . . . sex."
n.15.
Id. at 335,
If the plaintiff makes this showing, the burden shifts to
of these issues leaves much to be desired.
professionalism has been disappointing.
3
Their level of
See also Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir.
2007) ("To establish a prima facie case of sex discrimination under
Title VII, the parties agree that Alvarado was required to show:
(1) she is a member of a protected class; (2) she was qualified for
the position she sought; (3) she suffered an adverse employment
action; and (4) others similarly situated but outside the protected
class were treated more favorably.").
5
the employer to articulate a legitimate, nondiscriminatory reason
for its employment action.
The employer's burden is only one of
production, not of persuasion, and it involves no credibility
assessment.
If the employer meets this burden, the plaintiff must
then prove that the employer's proffered reason is not true but
instead is a pretext for the real discriminatory purpose.4
McCoy,
492 F.3d at 557.
The plaintiff contends that she was subjected to unwelcome
harassment
employees.
in
the
form
of
a
few
sexist
comments
by
Entergy
She says that Leon, her co-pilot at the Bombardier
training, told her that he was unimpressed with female pilots and
did not favor their being in the industry; that Trowbridge asked
her what she had done as a woman to make her custody litigation so
hard fought; and that a then-contract pilot, Frank Chennevert, said
that he did not like that women whom he deemed less qualified were
given promotions over him.
These comments standing alone are not
sufficient for a sexual harassment claim,5 and the plaintiff does
4
Entergy cites this burden-shifting framework in its arguments
about the plaintiff's sexual harassment claim. Perhaps Entergy,
like the Court, views the plaintiff's claim more as one of sex
discrimination. The burden-shifting framework does not appear in
cases involving the specific form of sex discrimination that is
sexual harassment, nor would it. It would be impossible for an
employer to justify, based on appropriate motives, a supervisor's
repeated, unwelcome, sexually explicit comments toward an employee,
for example.
5
In determining whether a work environment is hostile or abusive,
the Court must evaluate the totality of the circumstances,
including "the frequency of the discriminatory conduct, its
6
not argue that they are.
Instead, she uses these comments6 to
conclude that the treatment she received at the Bombardier training
and
her
subsequent
grounding
were
discrimination because of her gender.7
motivated
by
animus
or
A careful reading of the
severity, whether it is physically threatening or humiliating, and
whether it unreasonably interferes with the employee's work
performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23
(1993).
A few sexist comments, which the Court does not take
lightly nor condone, do not, however, rise to the level of a sexual
harassment claim.
6
She adds that Leon, her male colleague, also complained about the
safety of a pilot six years before she did and that Entergy did not
seek to punish Leon as it did her. She contends that she and Leon
are similarly situated and that the treatment towards her shows
that Entergy's conduct was motivated by gender or sex.
7
The plaintiff characterizes this behavior as sabotage in the
workplace, which she believes can constitute sexual harassment
because "sexual content is not the Title VII talisman." See Butler
v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 270 (5th Cir. 1998).
The Fifth Circuit in Butler, quoting the Supreme Court in a nonhostile-environment case, which in turn was quoting a concurrence
by Justice Ginsburg in another case, did not hold that behavior
divorced from gender can be sexual harassment. Rather, it found
that the workplace in question "while perhaps more sexually charged
than necessary, was not sexually charged in a way that made it a
hostile environment for either men or women." Id. The court was
not examining the third element of a sexual harassment
claim–whether the harassment was based on sex–but rather the fourth
element–whether the harassment complained of affected a term,
condition, or privilege of employment.
This Court does not dispute that non-sexual conduct can form
part of a sexual harassment claim.
See Betancourt-Esquerdo v.
Unión Internacional United Auto Workers, 2006 WL 2387083, *12
(D.P.R. Aug. 17, 2006); O'Rourke v. City of Providence, 235 F.3d
713, 730 (1st Cir. 2001). But the concern in this line of cases is
that a court "should avoid desegregating a hostile work environment
claim, dividing conduct into instances of sexually oriented conduct
. . . and instances of unequal treatment, then discounting the
latter category of conduct." Zambrana Santos v. Banco Santander de
P.R., 363 F. Supp. 2d 56, 64 (D.P.R. 2005) (emphasis added). The
opposite is the potential here. This Court finds the non-sexual
7
evidence thus reveals that her claim may not be one of sexual
harassment specifically, but, rather, of gender discrimination more
broadly.8
The parties do not note the distinction between the two,
each side arguing various aspects of the two claims.9
On this
record, the Court believes it improper to find that the defendant
has carried its burden on summary judgment as to prevail as a
matter of law.10
conduct in this case far more troubling (in the sense that it is
actionable) than the few sex-based remarks. The Court knows of no
successful sexual harassment case, and the plaintiff offers none,
where the vast majority of the complained of conduct did not, on
its face, concern the plaintiff's sex or gender. It seems that the
record does not lend itself to a sexual harassment claim.
8
The Court does not mean to definitively rule that the plaintiff's
claim is one of sex discrimination. The Court merely notes that
the nature of the claim is not clear and that summary judgment is
not appropriate.
The parties are welcome to dispute the
characterization of this claim in their trial submissions, should
the plaintiff wish to pursue a claim of sexual harassment or should
the defendant believe that the plaintiff has waived the ability to
allege sex discrimination. The Court expresses no opinion as to
either avenue. However, it seems reasonable to wonder aloud why
competent discovery before all the strands of motion practice has
not clarified this issue.
9
Entergy cites discrimination case law, see supra note 4, while
Currier contends that the bulk of her suffered "harassment"
concerns employment-related decisions, like her grounding.
Traditionally, sexual harassment is thought of as unwelcome
comments and actions that are largely unrelated to the victim's
job. Sex discrimination in the workplace, in contrast, involves
employment actions improperly taken on the basis of sex or gender.
10
The Court, not having had the benefit of reviewing this claim on
a motion to dismiss the second amended complaint, confronts several
layers of confusion for the first time at the evidentiary stage.
The plaintiff asserts what looks like a sex discrimination claim
based on the evidence, but she also specifically states that she
pursues only her sexual harassment claim, not her discrimination
8
B.
To recover on an IIED claim in Louisiana, a plaintiff is
required to show that (1) the defendant’s conduct was extreme and
outrageous; (2) the plaintiff suffered severe emotional distress;
and (3)"the defendant desired to inflict severe emotional distress
or
knew
that
substantially
severe
certain
emotional
to
result
distress
from
would
his
be
certain
conduct."
Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).
White
or
v.
An IIED claim is
not proper when the wrongdoer intends to commit another intentional
tort, invasion of privacy for example, but incidentally causes some
degree of emotional distress.
See Restatement (Second) of Torts §
47 (1965); White, 585 So. 2d at 1209 (adopting an IIED cause of
action in Louisiana "generally in accord with the legal precepts
set forth in the Restatement texts and comments."). The conduct
requirement in an IIED claim is difficult for a plaintiff to meet;
the standard does not reach "mere insults, indignities, threats,
claim. This claim's unclear nature may stem from the fact that the
plaintiff tries to couch her sex discrimination claim as a sexual
harassment claim, and it does fit that framework well. Maybe she
does so believing that she cannot meet the elements of a sex
discrimination claim. In its original motion (before the plaintiff
dropped her discrimination claim) Entergy attacks, for example, the
plaintiff's ability to show adverse employment action on the basis
of sex, contending that any such action was taken only after the
plaintiff was disqualified from flying because of the psychological
testing results. The plaintiff has repeatedly stated, however,
that the permanent grounding and the exams Entergy had her undergo
were tantamount to termination and ruined her career. Because of
this distinct (and perhaps unique) fact pattern, material facts
remain in dispute.
9
annoyances, petty oppressions, or other trivialities," but, rather,
the behavior must "go beyond all possible bounds of decency, [and
must] be regarded as atrocious and utterly intolerable in a
civilized community." Id.; see also Iturralde v. Shaw Grp., Inc.,
512 Fed. Appx. 430, 435 (5th Cir. 2013) ("Under Louisiana Civil
Code Article 2315, plaintiffs must meet a high burden of proof to
prevail on an IIED claim.").
The defendant contends that Entergy's conduct is so not severe
and outrageous as to support a claim for IIED.
This Court
recognizes the high bar for IIED claims in Louisiana.
Compare
Smith v. Ouachita Parish Sch. Bd., 702 So.2d 727 (La. App. 2 Cir.
1997) (holding that the wrongful demotion and transfer of a teacher
within
the
school
system,
though
causing
emotional
and
psychological distress, did not constitute extreme and outrageous
conduct); Glenn v. Boy Scouts of America, 977 F. Supp. 786 (W.D.
La. 1997) (telling an employee that she was rumored to have had a
sexual affair with a prior scout executive, being told that her
placement next to a donor who liked her was because she might get
more money from him, telling her that having a woman in her
position was undesirable, being called a total disgrace during a
staff meeting, and being told she would be terminated on an
undisclosed volunteer complaint unless she voluntarily resigned,
did not constitute extreme and outrageous conduct) with Bustamento
v.
Tucker,
607
So.
2d
532
(La.
10
1992)
(finding
sufficiently
outrageous almost daily improper sexual comments and advances,
threatened physical violence, and an attempt to run over the
plaintiff with a forklift).
This Court previously dismissed the
plaintiff's IIED claim against Oliver Trowbridge, Entergy's former
corporate aviation manager.11
There, the only conduct at issue was
his sending the letter to the FAA, speaking with Dr. Rabito,
grounding
the
plaintiff,
and
assigning
her
to
certain
administrative duties. The Court found that these circumstances in
isolation did not amount to extreme and outrageous conduct.
The episode as a whole, however, creates genuine issues of
material fact as to its outrageous nature.
Unlike the abuse of
right claim discussed below, the plaintiff's IIED claim does not
focus solely on an investigation that Entergy conducted out of
possible concerns for safety and liability and based on the
plaintiff's own complaints.
Rather, the IIED claim finds its
genesis in the supposed sabotage by Leon, Currier's co-pilot during
the Bombardier training.
The Court is unaware of, and the parties
have not identified, a case that applies to the particular fact
pattern here.
Arguably, on the present record, Currier was not
simply fired, and any wrongful conduct by Entergy did not lead to
her loss of only that one job; it destroyed her career.
finder
were
to
deem
Currier
more
credible
than
If a fact
the
Entergy
employees, that would mean that Entergy concocted a plan to destroy
11
See Order and Reasons, dated November 19, 2014, at 12-14.
11
Currier's career–whether or not rooted in sex discrimination–and
this could be deemed sufficiently severe and outrageous as to allow
recovery for intentional infliction of emotional distress.
issues
are
patently
trial-based.
These
These
fact-intensive
and
credibility-based questions are more aptly suited for a fact finder
than for the Court on summary judgment.12
C.
The doctrine of abuse of right applies "only when one of the
following conditions is met: (1) if the predominant motive for it
was to cause harm; (2) if there was no serious or legitimate motive
for refusing; (3) if the exercise of the right to refuse is against
moral rules, good faith, or elementary fairness; (4) if the right
to refuse is exercised for a purpose other than that for which it
is granted."
Mass. Mut. Life Ins. Co. v. Nails, 549 So.2d 826,
828-29 (La. 1989).
In other words, and perhaps more useful here,
"the holder of an individual right must exercise that right to the
detriment of another simply for the sake of exercising it."
Brumley v. Leam Investments, Inc., No. 09-1078, 2012 WL 525474, at
*19 (W.D. La. Feb. 16, 2012).
Currier claims that Entergy abused its right to investigate
her complaints.
But nothing infers that Entergy undertook an
investigation, based on the plaintiff's complaints, without any
12
Entergy's intent is inherently a
credibility determination at trial.
12
fact
issue,
subject
to
a
benefit to itself, and merely to cause harm.
See Jones v. New
Orleans Legal Assistance Corp., 568 So.2d 663, 668-69 (La. App. 4
Cir. 1990).
safety
Currier's area of work obviously implicates public
concerns.
Nothing
of
record
instructs
that
Entergy
initiated an investigation into Currier's complaints without any
benefit
to
itself.
Rather,
Entergy
hired
an
independent
investigator to look into her complaints for the sake of the safety
of
its
employees
and
passengers
and
to
protect
itself
from
liability.13
According, the defendant's motion for summary judgment is
GRANTED as to the abuse of right claim, and DENIED as to the sexual
harassment (or sex discrimination) and IIED claims.
right claim is hereby DISMISSED.
The abuse of
The plaintiff's claims for
intentional discrimination under the ADA, retaliation, and fraud,
which
she
no
longer
pursues,
are
DISMISSED.
Her
sexual
harassment/sex discrimination and IIED claims are the only pending
claims that remain for resolution by way of trial or settlement.14
New Orleans, Louisiana, December 18, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
13
See Order and Reasons, dated November 19, 2014 (dismissing the
civil conspiracy claim against Griffith, the outside investigator).
14
Finally, given how both sides have dealt with this case, the Court
is obliged to call attention to 28 U.S.C. § 1927.
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?