Jones v. Turner et al

Filing 35

ORDER AND REASONS granting 32 Motion for Summary Judgment; granting 27 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 11/12/13. (jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRENDA JONES

CIVIL ACTION

VERSUS

NO: 13-85

NICHELLE TURNER, GIROD
GOULER, HERMAN THOMAS,
DERRICK BREUN, VEOLIA
TRANSPORTATION SERVICES,
INC., CITY OF NEW ORLEANS,
REGIONAL TRANSIT AUTHORITY,
AND THEIR RESPECTIVE UNKNOWN
INSURERS

SECTION: R

ORDER AND REASONS
Before the Court are two motions for summary judgment. One
was filed by defendants Gerard Guter (incorrectly identified as
"Girod Gouler" in plaintiff's petition for damages), Herman
Thomas, Derrick Breun, and Veolia Transportation Services, Inc.
(collectively, the "Veolia Defendants"),1 and the other by
defendant Nichelle Turner.2 Plaintiff has not filed a substantive
response to either motion. For the following reasons, the Court
GRANTS the motions, and orders plaintiff's claims against the
Veolia Defendants and Nichelle Turner dismissed.

1

R. Doc. 27.

2

R. Doc. 32.

I.

BACKGROUND
Plaintiff Brenda Jones was employed as a bus driver by

defendant Veolia Transportation Services, Inc. ("VTS").3
Plaintiff's employment with VTS was governed by a Collective
Bargaining Agreement between VTS and plaintiff's union, the
Amalgamated Transit Union, Division 1560 (ATU 1560).4 On August
10, 2012, plaintiff became involved in an argument with another
VTS employee, defendant Nichelle Turner.5 Plaintiff alleges that
Turner "interrupted her telephone conversation and stated that
Plaintiff was ignorant and that she would write her up . . . ."6
She also alleges that the two women exchanged curses.7 VTS
thereafter terminated plaintiff's employment on the grounds that
she had threatened a fellow employee.8
Plaintiff filed a grievance with ATU 1560 following this
incident.9 Her grievance was assessed under the "usual grievance

3

R. Doc. 27-1 at 1.

4

Id.

5

Id. at 2.

6

R. Doc. 1-1 at 2 (emphasis deleted).

7

R. Doc. 27-5 at 9.

8

R. Doc. 27-1 at 2.

9

Id.
2

procedures provided for" by the CBA between VTS and ATU 1560, but
it was not resolved.10 ATU 1560 then investigated the incident,
but the union members chose not to pursue arbitration with VTS
because they did not believe that plaintiff would win an
arbitration.11
On January 8, 2013, plaintiff sued the Veolia Defendants,
Nichelle Turner, Regional Transit Authority, and the City of New
Orleans in Louisiana state court.12 In her petition for damages,
plaintiff alleged claims of defamation, intentional infliction of
emotional distress, and gross negligence against each
defendant.13 She also alleged that defendants subjected her to a
hostile work environment and conspired to wrongfully discharge
her from employment at VTS.14 Finally, plaintiff alleged that
defendant Guter sexually harassed her.15 Plaintiff has testified
that all of her claims arise from the August 10, 2010 argument,16
except possibly the sexual harassment claim. Plaintiff indicated
10

R. Doc. 27-7 at 2.

11

Id. at 4.

12

R. Doc. 1-1.

13

Id. at 3-4.

14

Id. at 3.

15

Id.

16

R. Doc. 27-5 at 7.
3

in her deposition that her sexual harassment claim was based on
defendant Guter's 2002 statement to plaintiff that he knew her
"big fine sister."17
On January 16, 2013, defendants timely removed the suit to
this Court, contending that the Court has federal question
jurisdiction because plaintiff's claims related to her unlawful
discharge are preempted by Section 301 of the Labor Management
Relations Act, 29 U.S.C. § 185.18 On April 18, 2013, plaintiff
filed a motion requesting that the Court permit her counsel of
record to withdraw,19 which the Court granted.20 Since her
previous counsel withdrew, plaintiff has proceeded pro se in this
matter.21
The Veolia Defendants filed a motion for summary judgment on
August 20, 2013,22 and defendant Turner did likewise on September
20, 2013.23 The motions were set for submission on September 11
17

Compare R. Doc. 27-5 at 7 with R. Doc. 1-1 at 3.

18

R. Doc. 1.

19

R. Doc. 19.

20

R. Doc. 20.

21

See R. Doc. 23. On July 11, 2013, plaintiff filed a
motion requesting appointed counsel. R. Doc. 24. Magistrate Judge
Chasez denied the motion. R. Doc. 26.
22

R. Doc. 27.

23

R. Doc. 32.
4

and October 9, respectively. Plaintiff did not timely respond to
either motion. On October 17, 2013, the Court issued an order
directing plaintiff to file a memorandum in opposition by October
31, 2013, if she opposed the motions for summary judgment.24 On
October 24, 2013, plaintiff filed a one-page "opposition" stating
that she has spoken with an attorney about representing her and
that "he need[s] more time to look over the case."25 Plaintiff
failed to file a substantive response to either pending motion
for summary judgment, and no counsel has enrolled on her behalf.
Plaintiff has already been granted substantial extensions of
time to respond to the pending motions. As no lawyer has enrolled
in her stead since her October 24, 2013 filing, the Court finds
that further delay in deciding the motions is not warranted.
Accordingly, the Court deems the instant motions ripe for
decision. Cf. Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir.
1990) (district court has broad discretion to enforce its
scheduling order and the Local Rules).
II. LEGAL STANDARD
Summary judgment is warranted when "the movant shows that
there is no genuine dispute as to any material fact and the

24

R. Doc. 33.

25

R. Doc. 34 at 1.
5

movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). When assessing whether a dispute as to any material fact
exists, the Court considers "all of the evidence in the record
but refrain[s] from making credibility determinations or weighing
the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but
"unsupported allegations or affidavits setting forth 'ultimate or
conclusory facts and conclusions of law' are insufficient to
either support or defeat a motion for summary judgment." Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see
also Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the movant must present
evidence that would "entitle it to a directed verdict if the
evidence went uncontroverted at trial." Int'l Shortstop, Inc. v.
Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The
nonmoving party can then defeat the motion by either countering
with sufficient evidence of its own, or "showing that the moving
party's evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving
6

party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the movant may satisfy
its burden by merely pointing out that the evidence in the record
is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that
establish a genuine issue for trial. See, e.g., id. at 324;
Little, 37 F.3d at 1075 ("Rule 56 'mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial.'" (quoting Celotex, 477 U.S. at 322)).
III. DISCUSSION
A. Subject Matter Jurisdiction
Before delving into the merits of this dispute, the Court
must ensure that it has subject-matter jurisdiction over the
lawsuit. "[S]ubject-matter jurisdiction cannot be created by

7

waiver or consent." Howery v. Allstate Ins. Co., 243 F.3d 912,
919 (5th Cir. 2001). Thus, "federal court must address
jurisdictional questions whenever they are raised and must
consider jurisdiction sua sponte if not raised by the parties."
Id.
Plaintiff alleges that defendants conspired to wrongfully
discharge her from her employment with VTS. Resolution of this
claim necessary depends on the meaning of the CBA between VTS and
plaintiff's union, since the CBA's policies and procedures apply
to "any dispute between the Company and an employee . . . as to
whether an employee has been disciplined, suspended, or
discharged for just cause."26 That is, in order to determine
whether plaintiff was wrongfully discharged, the Court would have
to interpret the CBA because that document sets forth the method
of assessing whether a discharge was proper. Section 301(a) of
the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a),
which provides that suits for violation of labor contracts "may
be brought in any district court of the United States having
jurisdiction of the parties," "mandate[s] resort to federal rules
of law in order to ensure uniform interpretation of collectivebargaining agreements, and thus to promote the peaceable,

26

R. Doc. 27-8 at 8.
8

consistent resolution of labor-management disputes." Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403-04 (1988).
Thus, plaintiff's claim for wrongful discharge is governed by
federal labor-law principles. Id. at 405-06. Accordingly, this
Court has federal question jurisdiction over that claim. See 28
U.S.C. § 1331 ("The district courts shall have original
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.").
Moreover, it is undisputed that all of plaintiff's claims
arise out of her clashes with management and co-workers during
her employment with VTS.27 Thus, this Court may exercise
supplemental jurisdiction over the state law claims in this case.
See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349 (1988)
("[A] federal court has jurisdiction over an entire action,
including state-law claims, whenever the federal-law claims and
state-law claims in the case 'derive from a common nucleus of
operative fact' and are 'such that [a plaintiff] would ordinarily
be expected to try them all in one judicial proceeding." (quoting
United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966))
(alteration in original)); cf. Smith v. Amedisys Inc., 298 F.3d
434, 439-440 (5th Cir. 2002) (plaintiff's claims that former
supervisors sexually harassed her, discriminated against her, and
retaliated against her during her employment were so intertwined

27

See R. Doc. 27-1 at 2; R. Doc. 27-5 at 7.
9

that they were not "separate and independent claim[s] or cause[s]
of action" (alterations in original)).
B. The Merits of Plaintiff's Claims
Plaintiff has alleged claims of conspiracy to wrongfully
discharge her, defamation, intentional infliction of emotional
distress (IIED), gross negligence, hostile work environment, and
sexual harassment. But plaintiff has not responded to the
defendants' motions for summary judgment and has not otherwise
come forth with any evidence to support any of her allegations.
As explained below, plaintiff's failure to do so is fatal to each
of her claims.
1.

Plaintiff's Claims Against the Veolia Defendants

Plaintiff's claims for wrongful discharge are preempted by
the LMRA because they implicate the CBA between VTS and ATU 1560.
See supra Section III.A. Plaintiff's defamation and intentional
infliction of emotional distress claims are likewise preempted.
See Stafford v. True Temper Sports, 123 F.3d 291, 296 (5th Cir.
1997) (noting that state law claims for IIED and for defamation
are preempted if the claims relate to a dispute over whether the
plaintiff's dismissal was appropriate or whether the employer's
actions in investigating and sanctioning alleged misconduct were
reasonable). Insofar as plaintiff purports to bring a federal
10

claim under the LMRA -- that is, to argue that her discharge was
a breach of the CBA between VTS and ATU 1560 -- plaintiff would
be required to show that her union breached its duty of fair
representation in order to prevail. Williams v. AT&T, Inc., 356
F. App'x 761, 768 (5th Cir. 2009). In order to show breach of the
duty of fair representation, plaintiff would have to demonstrate
that the union's "actions were 'arbitrary, discriminatory, or in
bad faith.'" Id. (quoting Vaca v. Sipes, 386 U.S. 171, 190
(1967)). Plaintiff has presented no evidence that this is the
case, and thus summary judgment on her wrongful discharge claims
is appropriate. See Little, 37 F.3d at 1075 (noting that courts
may not, "in the absence of any proof, assume that the nonmoving
party could or would prove the necessary facts" to succeed on a
given claim).
Even if plaintiff's allegations of defamation and IIED were
not preempted, the Court would still find dismissal of those
claims warranted. To succeed on her claim for defamation under
Louisiana law, plaintiff would be required to show "(1) a false
and defamatory statement concerning another; (2) an unprivileged
publication to a third party; (3) fault (negligence or greater)
on the part of the publisher; and (4) resulting injury." Kennedy
v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 674 (La. 2006). And
in order to recover for IIED in Louisiana, a plaintiff must
11

establish "(1) that the conduct of the defendant was extreme and
outrageous; (2) that the emotional distress suffered by the
plaintiff was severe; and (3) that the defendant desired to
inflict severe emotional distress or knew that severe emotional
distress would be certain or substantially certain to result from
his conduct." White v. Monsanto Co., 585 So.2d 1205, 1209 (La.
1991). Plaintiff has failed to present evidence establishing that
any of these elements is present.
Plaintiff's claim for gross negligence also fails. Louisiana
law defines gross negligence as the "want of even slight care and
diligence" or the "entire absence of care." Brown v. ANA Ins.
Grp., 994 So.2d 1265, 1269 n.7 (La. 2008). Plaintiff has made no
showing that any of the Veolia Defendants acted negligently
during the events giving rise to this litigation, much less that
they acted with an "entire absence of care."
Plaintiff's claims for hostile work environment and sexual
harassment fare no better. In order to succeed on such claims
under either state or federal law, plaintiff must show (1) that
she belonged to a protected group; (2) that she was subjected to
unwelcome harassment that was (3) motivated by discriminatory
animus; (4) that the harassment 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 proper remedial
12

action. See Burnett v. E. Baton Rouge Parish Sch. Bd., 99 So.3d
54, 62 (La. Ct. App. 2012); Cain v. Blackwell, 246 F.3d 758, 760
(5th Cir. 2001). Plaintiff has presented no evidence tending to
establish any of these elements.
It is true that plaintiff testified that Guter called
plaintiff into his office and told her that he knew plaintiff and
her "big, fine sister."28 But, even if this comment could be
construed as harassment, it was made in 2002,29 and thus the
prescriptive period for any sexual harassment claim has long
since lapsed. See Hood v. Sears Roebuck & Co., 168 F.3d 231, 232
(5th Cir. 1990) (noting that a federal sexual harassment claim
must be filed within 180 days of the alleged illegal conduct
(citing 42 U.S.C. § 2000e-5(e)(1)); King v. Phelps Dunbar, LLP,
743 So.2d 181, 187 (La. 1999) (claims under Louisiana's
antidiscrimination statute must be brought within one year of the
alleged wrong). Plaintiff has presented no evidence to contradict
defendants' argument that her sexual harassment claim is timebarred, and there is no indication in the record that any
offending conduct occurred within the prescriptive period.
Summary judgment on this claim is thus appropriate as well.

28

See R. Doc. 27-5 at 7, 21.

29

Id.
13

2.

Plaintiff's Claims Against Turner
Plaintiff alleges claims of defamation, intentional

infliction of emotional distress, and gross negligence against
defendant Turner.30 Plaintiff has presented no evidence tending
to establish the elements of these claims against Turner. Cf.
supra Section III.B.1. Indeed, the affidavits accompanying
Turner's motion for summary judgment attest to the following: (1)
plaintiff threatened to harm Turner; (2) Turner did not curse at
or threaten plaintiff; and (3) Turner filled out an incident
report documenting the exchange because she felt "threatened and
intimidated" by plaintiff.31 These affidavits negate essential
elements of plaintiff's claims. See Kennedy, 935 So.2d at 674
(plaintiff asserting defamation claim must show that defendant
negligently published a false statement to a third party); White,
585 So.2d at 1209 (plaintiff asserting IIED claim must show that
defendant's conduct was "extreme and outrageous"); Brown, 994
So.2d at 1269 n.7 (plaintiff asserting gross negligence claim
must show that defendant acted with an "entire absence of care").
Plaintiff has presented no evidence tending to contradict

30

See R. Doc. 1-1 at 3-4.

31

See R. Docs. 32-2, 32-3.
14

Turner's account of the events giving rise to this suit. Thus,
Turner is entitled to summary judgment. See Little, 37 F.3d at
1075 (if defendant moving for summary judgment shows that
plaintiff cannot prove the elements of her claim, plaintiff must
"go beyond the pleadings and designate specific facts showing
that there is a genuine issue for trial" in order to avoid
summary judgment).

IV. CONCLUSION
For the foregoing reasons, both motions for summary judgment
under consideration are GRANTED.

New Orleans, Louisiana, this 12th day of November, 2013.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

15