Stewart v. Caton

Filing 33

ORDERED that Defendants' 20 Motion to Dismiss is GRANTED inasmuch as Plaintiff brings (a) claims under the Louisiana Discrimination Law individually against Defendant Caton, and (b) claims for negligent infliction of emotional distress. I t is FURTHER ORDERED that Defendants' Motion to Dismiss is DENIED in all other respects. It is FURTHER ORDERED that Plaintiff is granted leave to amend her complaint to remedy the unclear allegations regarding Shore Enterprises as stated within document. Signed by Judge Carl Barbier. (gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LYNETTE CHYRIE STEWART

CIVIL ACTION

VERSUS

NO: 13-823

DWIGHT J. CATON, et al.

SECTION: "J” (2)

ORDER AND REASONS
Before the Court are Defendants' Motion to Dismiss Pursuant
to

Fed.

R.

Civ.

Proc.

12(b)(6)

(Rec.

Doc.

20),

Plaintiff's

opposition thereto (Rec. Doc. 27), and Defendants' reply (Rec.
Doc. 31). Defendants' motion was set for hearing on August 14,
2013,

with

oral

argument;

however,

the

oral

argument

was

cancelled (Rec. Doc. 32), and the motion was considered on the
briefs. The Court, having considered the motions and memoranda of
counsel,

the

record,

and

the

applicable

law,

finds

that

Defendants' motion should be GRANTED in part and DENIED in part
for the reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This case arises out of allegations of sex discrimination
1

and retaliation in violation of Title VII of the Civil Rights Act
of 1964 ("Title VII") and Louisiana Revised Statute § 23:301 et
seq.

("Louisiana

various

state

Employment

law

claims

Discrimination

including

Law")

intentional

as

and

well

as

negligent

infliction of emotional distress and battery. Plaintiff, Lynette
Chyrie Stewart ("Stewart"), was an employee of Defendant, Modern
American Recycling Service, Inc. ("Modern"). While employed at
Modern, Stewart alleges that her supervisor, Defendant, Dwight
"Butch" Caton ("Caton"), sexually harassed her by pulling up her
blouse,

touching

regarding
result,

both

Stewart

her

breasts,

Stewart's
claims

to

and

and
her

have

making

repeated

daughter's

suffered

comments

breasts.1

extreme

As

anxiety

a

and

distress so as to necessitate medical treatment. Caton is the
owner and registered agent of Modern.
Stewart filed a charge of sexual discrimination with the
Equal Employment Opportunity Commission ("EEOC") on November 28,
2012. Despite a clean employment record, Stewart's employment
with Modern ended on November 29, 2012; however, the parties

1

Examples of the comments that Plaintiff alleges were made are: calling
Plaintiff a "cow", telling Stewart to "come on over here, I'm bored...it's
boob playing time when I'm bored," and referring to Stewart's breasts as
"utters [sic]" and/ or "big old titties." (Pl.'s Compl., Rec. Doc. 1, ¶¶ 10,
37, & 45) A third party salesman also affirms that Caton initially identified
Stewart to him by calling her the "big titted blond" and referred to Stewart
as "cow tits." (Dec. of Tony Serventi, Rec. Doc. 1-9, ¶¶ 2-3)

2

dispute whether Stewart voluntarily ended her employment or was
terminated. Stewart filed another EEOC charge for retaliation on
December 3, 2012. The EEOC issued to Stewart a notice of right to
sue on February 14, 2013. Stewart filed her complaint on April
15, 2013, against Caton, individually and in his supervisory
capacity,

and

Modern's

insurer,

ABC

Insurance

Agency

(collectively, "Defendants"). Stewart later amended her complaint
to add Modern as a defendant. After being granted additional time
to

answer

Stewart's

complaint,

Defendants

filed

the

instant

motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) on June 21, 2013. Plaintiff filed her opposition to the
motion to dismiss on July 23, 2013. Defendants filed a reply
memorandum on August 9, 2013.
PARTIES’ ARGUMENTS
A. Defendants' Argument
Defendants

argue

that

all

of

Stewart's

claims

must

be

dismissed. Defendants assert that all claims under the Louisiana
Employment Discrimination Law must be dismissed because Modern
does not qualify as an employer under the statutory definition.
The Louisiana Employment Discrimination Law defines an "employer"
as "an employer who employs twenty or more employees within this
state for each working day in each of twenty or more calendar

3

weeks

in

23:302(2)

the

current

(West

or

2012).

preceding

Defendants

calendar
assert

year."

that

La.

Modern

R.S.
never

employed twenty or more employees, and points out that Stewart
herself recognized this in the EEOC charge sheet wherein she
stated

that

Modern

only

employed

seventeen

employees

plus

independent contractors.
Defendants further argue that Stewart's Title VII claims
must be dismissed because (a) Caton may not be held personally
liable

under

Title

VII,

and

(b)

the

alleged

conduct

is

not

sufficiently severe and pervasive so as to constitute a hostile
work environment.
Defendants argue that, under Indest v. Freeman Decorating,
Inc., 164 F.3d 258 (5th Cir. 1999), "a Title VII suit against an
employee is actually a suit against the corporation."

Therefore,

Defendant argues that all Title VII claims should be dismissed as
to Caton. Defendants assert that all claims of discrimination
based on sex should be dismissed because Stewart fails to state a
claim of sexual harassment.

Citing to

Lauderdale v. Texas Dept.

of Criminal Justice, Institutional Division, 512 F.3d 157 (5th
Cir. 2007), Defendants aver that one of the elements of a prima
facie case of hostile work environment is "that the harassment
affected a term, condition, or privilege of employment." To make

4

this showing, Defendants argue that Stewart must allege conduct
that is "sufficiently severe or pervasive" and that the work
environment

is

"both

objectively

and

subjectively

offensive"

under Aryain v. Wal-Mart Stores of Texas, LP, 534 F.3d 473 (5th
Cir. 2008). Defendants cite to a litany of cases to argue that
the conduct alleged by Stewart is not sufficiently severe or
pervasive to be actionable, and therefore should be dismissed.
B. Stewart's Opposition
Stewart notes that she brings her Title VII claims against
Modern,
Modern

not
is

against

liable

for

Caton
the

individually.
hostile

work

Stewart

argues

environment

that

that
was

created because, under Ackel v. National Communications, Inc.,
339 F.3d 376, 383-84 (5th Cir. 2003) an employer is vicariously
liable if the harassing employee is a proxy for the employer.
Because Caton is owner of Modern and was Stewart's supervisor,
Stewart contends that Caton was a proxy for Modern, which makes
Modern vicariously liable under Title VII.
Stewart rejects Defendants' argument that Caton's conduct
was not sufficiently severe and pervasive to constitute a hostile
work environment. Stewart points out that much of the authority
cited to by Defendants was either (a) taken out of context, (b)
subsequently reversed, thus no longer valid law, or (c) not

5

contorlling, because it arises from jurisdictions outside of the
Fifth

Circuit,

making

it

irrelevant

and

non-binding

on

this

Court.
Stewart further argues that she has a valid Title VII claim
against Modern for discrimination based on retaliation because
she presents enough facts to establish a claim under Evans v.
City of Houston, 246 F.3d 344, 352 (5th Cir. 2001). Under Evans,
Stewart asserts that she must show "(1) that she was engaged in
behavior

protected

by

statute,

(2)

that

she

was

subject

to

adverse employment action, and (3) that engaging in the protected
activity caused the adverse action against her." (Pl. Opp., Rec.
Doc.

27,

p.

12)

Plaintiff

contends

that

she

engaged

in

a

protected activity when she filed a charge with the EEOC, that
she was terminated immediately, and that her filing of the charge
caused her termination; therefore, she argues that she has stated
a

retaliation

claim

and

the

Title

VII

charges

must

not

be

dismissed.
Stewart contends that her state law claims should not be
dismissed because (a) Modern employs over twenty employees, and
(b)

Stewart

alleges

state

law

claims

other

than

the

discrimination claim.
Stewart asserts that, even though Modern only employed 17

6

employees,

under

the

Fifth

Circuit's

"single

employer

test,"

Modern and a different entity, Shore Enterprises ("Shore"), would
be considered one employer, and together, they have more than 20
employees. Stewart contends that the Fifth Circuit established a
four-prong

test

in

Schweitzer

v.

Advanced

Telemarketing

Corporation, 104 F.3d 761 (5th Cir. 1997) to determine if two
seemingly

unrelated

entities

should

be

considered

a

single

employer for the purposes of determining if an entity is covered
by

Title

following

VII.

Plaintiff

factors:

(1)

urges

the

Court

interrelation

of

to

consider

operations;

the
(2)

centralized control of labor relations; (3) common management;
and (4) common ownership or financial control."
that

she

properly

pleaded

that

there

were

Plaintiff argues
seventeen

Modern

employees plus 300 other employees at Shore, and that Shore and
Modern are acting as a common enterprise.

Stewart claims that

Kristi Yates,2 the owner of Shore, and Caton share an office,
phones, servers, office building, and kitchen.

Stewart also

contends that Shore "performs all of its services on behalf of
and at the direction of" Modern. (Pl.'s Opp., Rec. Doc. 27, p.
14) Therefore, Stewart claims that Modern and Shore should be a

2

Kristi Yates is also alleged to be the vice-president of Modern and
the fiancée of Caton (Pl.'s Opp., Rec. Doc. 27, p. 3)

7

single

employer

for

the

purpose

of

counting

employees,

thus

Modern should be considered an "employer" under Louisiana Revised
Statute § 23:302(2).
Stewart further contends that the Fifth Circuit announced a
test in Arbaugh v. Y&H Corp., 380 F.3d 219, 226 (5th Cir. 2004),
for district courts to use in determining if an independent
contractor

is

an

"employee"

Revised Statute § 23:302.

within

the

meaning

of

Louisiana

Stewart lists the following factors as

those that should be considered:
(1) ownership of the equipment necessary to perform the
job; (2) responsibility for costs associated with
operating that equipment and for license fees and
taxes; (3) responsibility for obtaining insurance; (4)
responsibility for maintenance and operating supplies;
(5) ability to influence profits; (6) length of the job
commitment; (7) form of payment; and (8) directions on
schedules and on performing work.
Arbaugh, 380 F.3d at 226. Stewart argues that under this test,
any worker at Shore or Modern would be considered an employee,
regardless of how they are purportedly classified by Modern.
Stewart argues that, since she has shown that Modern is an
"employer"
substantive

within

the

analysis

statutory
under

definition,
the

and

Louisiana

because

the

Employment

Discrimination Law is the same as the analysis under Title VII,
she has sufficiently stated a claim for discrimination under
state law.
8

Finally, Stewart argues that she has stated several state
law tort claims. Stewart argues that, by alleging that Caton
lifted her shirt and touched her breasts, she has pleaded enough
facts to state a claim for battery, which requires a showing of
"harmful or offensive contact with the person, resulting from an
act intended to cause the plaintiff to suffer such a contact."
(Pl.'s opp., Rec. Doc. 27, p. 15. (citing Caudle v. Betts, 512
So. 2d 389, 391 (La.1987)).
Stewart further alleges that, under White v. Monsanto Co.,
585

So.

2d

1205,

1209

(La.

1991),

she

states

a

claim

for

intentional infliction of emotional distress. White requires a
showing
(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.
Id. Stewart stresses that sexual harassment in front of other coworkers and third parties is outrageous conduct, and that the
distress she suffered was so severe that it required medical
treatment.

Further, Stewart asserts that it was clearly Caton's

intent

cause

to

therefore,
intentional

Stewart

such

distress

argues

infliction

of

that

through
her

emotional
9

sexual

state
distress

law

degradation;
claim

should

not

for
be

dismissed.
Finally, Stewart argues that she at least states a claim for
negligent

infliction

of

emotional

distress

under

Duncan

v.

Bartholomew, 2011-0855, (La. Ct. App. 4 Cir 2012); 88 So.3d 698,
707-08 which requires Stewart to prove that, as a result of
Defendants

negligence,

she

suffered

a

"mental

disturbance

accompanied by a physical manifestation of the distress such as
illness or injury." (Pl.'s Opp., Rec. Doc. 27, p. 16) Stewart
contends

that

distress

that

clearly

she

suffered

required

negligent;

physical

medical

therefore,

manifestations

treatment,
she

has

and

stated

of

her

Defendant

was

a

claim

for

negligent infliction of emotional distress.
C. Defendants' Reply
In their reply brief, Defendants re-assert (a) that Caton
may not be held personally liable under Title VII, and (b) that
the alleged conduct is not sufficiently severe and pervasive to
create a hostile work environment. Defendants also assert for the
first time (a) that Caton cannot be held personally liable under
the Louisiana Employment Discrimination Law because he does not
fit the definition of an "employer", (b) that Stewart improperly
applied Schweitzer to determine that Modern is an employer under
the Louisiana Employment Discrimination Law, (c) that Stewart

10

cannot bring up new facts in her brief, such as her allegation
that Shore and Modern are single employer because she did not
include

Shore

Complaints,

as

(d)

constructively

a

Defendant

that

in

Stewart

discharged

her

may

because

EEOC

not
she

charge

claim
did

not

or

that

in

her

she

was

include

that

allegation in her EEOC charge and because she does not allege
sufficient facts to support such a claim, (e) that Stewart's
negligent infliction of emotional distress, as well as any other
negligence claim, is barred because worker's compensation is the
exclusive remedy for workplace negligence, and (f) that Stewart's
complaint does not allege sufficient facts to allow Defendants to
defend the suit, specifically that it provides no dates for the
alleged conduct.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo,

544

U.S.

336,

346

simple, concise, and direct.”

(2005).

The

allegations

“must

be

FED. R. CIV. P. 8(d)(1).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

11

must plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. A court
must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not,
however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
DISCUSSION
A.

Title VII Claims
1. Claims Against Caton Individually
Defendants assert in their motion, and again in their reply

memorandum, that Stewart cannot assert a Title VII claim against
Caton

individually

either

because

Title

VII

does

not

impose

liability on individuals or because Stewart did not include such
a complaint in her EEOC charge. Stewart contends that she only
asserts a Title VII claim against Modern, which she is allowed to
do; therefore, the Court need not analyze Defendants' assertions

12

that Caton is not individually liable.
2. Claims Against Modern
A supervisor may be treated as a proxy for the employer.
Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998) (When
"the individual charged with creating the abusive atmosphere was
the president of the corporate employer [...the individual] was
indisputably

within

that

class

of

an

employer

organization's

officials who may be treated as the organization's proxy.") If a
plaintiff alleges that such a proxy has created a hostile work
environment, then the employer is vicariously liable, unless the
employer may assert an affirmative defense.
applicable

affirmative

defense

is

only

Id.

at

available

807.

The

when

the

employer did not take a tangible employment action, "such as a
discharge,

demotion,

or

unreasonable

assignment."

Id.

If

the

employer is entitled to the affirmative defense, the employer has
the burden of proving that it took reasonable care to prevent and
promptly correct any harassing behavior, but that the plaintiff
unreasonably failed to take advantage of such opportunities or
otherwise failed to avoid harm. Id.
Here, Stewart correctly argues that, because Caton is the
owner

of

the

corporate

employer,

Modern,

his

actions

are

imputable to Modern, and Modern will be vicariously liable unless

13

it can assert the affirmative defense. Modern did not make any
arguments on this point, and Stewart alleged in her complaint
that there was no harassment policy.

Therefore, taking Stewart's

allegations as true, it appears that Modern will not be able to
satisfy the standard for the affirmative defense and will be
vicariously liable for Caton's conduct, if it is determined to be
actionable.

Whether

Stewart

has

pleaded

sufficient

facts

to

substantively state such a claim against Modern is treated below.
a. Discrimination Based on Sex
Title VII makes it “an unlawful employment practice for an
employer ... to discriminate against any individual with respect
to

his

compensation,

terms,

conditions,

or

privileges

of

employment, because of such individual's ... sex." Shepherd v.
Comptroller of Pub. Accounts of State of Texas, 168 F.3d 871, 873
(5th Cir. 1999). Harassment is a form of discrimination affecting
terms, conditions, and privileges of employment. See Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 63-64 (1986). There are two
forms of harassment: quid pro quo and hostile work environment.
See Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir.
2002).

Stewart

does

not

allege

employment

action

that

was

therefore,

Stewart

does

not

that

Caton

conditioned
have

14

a

claim

took

on
for

a

sexual
quid

tangible
favors;
pro

quo

harassment, despite the fact that she briefly mentions the term
in her complaint. Id.
Stewart does, however, plead enough facts to state a hostile
work environment claim. See Harris v. Forklift Sys. Inc., 510
U.S.

17,

22

(1993)

(recognizing

a

Title

VII

claim

for

sex

discrimination based on a hostile work environment theory). A
claim for sex discrimination under a theory of hostile work
environment exists when:
(1) [the plaintiff] belongs to a protected group, (2)
she was subject to unwelcome sexual harassment, (3) the
harassment complained of was based upon sex; (4) the
harassment complained of affected a term, condition, or
privilege of employment (i.e., that the sexual
harassment was so pervasive or severe as to alter her
conditions of employment and create an abusive working
environment); and (5) the employer knew or should have
known about the harassment and failed to take proper
action.

Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th
Cir. 1996).
The

conduct

complained

of

must

be

both

subjectively

perceived as abusive by the plaintiff and objectively hostile or
abusive under a reasonable person standard. Harris, 510 U.S. at
21-22;

Aryain,

534

F.3d.

Harassment

need

not

be

severe

and

pervasive to be actionable, as many courts have found that a
single,

severe

act

was

sufficient

15

to

create

a

hostile

work

environment. Harvill v. Westward Communications, L.L.C,. 433 F.3d
428, 435 (5th Cir. 2005). In determining if conduct is "severe
and/or pervasive," the Court should consider the totality of the
circumstances, "including the frequency of the discriminatory
conduct, its severity, whether it is physically threatening or
humiliating,

or

a

mere

unreasonably

interferes

offensive
with

an

utterance,

employee's

and

work

whether

it

performance.

Shepherd, 168 F.3d at 874.
Defendants only challenge the objective component of the
analysis, arguing that Caton's conduct was not so severe or
pervasive so as to be actionable. Defendants cite to numerous
cases to illustrate this point, but as Stewart correctly points
out, many of the cases to which Defendants cite may not be relied
on because they come from jurisdictions outside of the Fifth
Circuit and/or have been overruled.3 Moreover, all of the cases
discussed in both parties' briefs, including in Defendants' reply
memorandum, consider cases before the court on a motion for
summary judgment.

Because the standard for granting such a

motion differs greatly from the standard for granting the instant

3

As such, the Court will not consider Defendants' arguments
Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333 (7th Cir.
Corbitt v. Home Depot U.S.A., Inc., 573 F.3d 1223, 1240 (11th Cir.
Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998); Gupta
Bd. of Regents, 212 F.3d 571 (11th Cir. 2000);

16

based on
1993);
2009);
v. Florida

motion to dismiss, the Court finds that none of the cited cases
apply to the instant motion.
A

plaintiff's

"burden

on

a

motion

to

dismiss

is

to

sufficiently plead a Title VII-based hostile work environment
claim.

Whether

the

evidence

ultimately

bears

out

defendant's

contention that plaintiff has failed to establish a prima facie
hostile work environment claim is not before the Court." E.E.O.C.
v. Jamal & Kamal, Inc., No. 05-2667, 2006 WL 285143, *2 (E.D. La.
Feb. 7, 2006) (Zainey, J.) In Jamal & Kamal, Inc., the EEOC
alleged that the plaintiff's manager engaged in
unwelcome
and
offensive
sexual
overtures,
the
initiation of graphic, sexually-oriented conversations,
and touching and rubbing. The complaint indicates that
“these
practices
were
compounded
by
frequent
manifestations of offensive, humiliating, gender-based
hostility that were perpetuated by the same manager and
directed toward [plaintiffs] and other[s].” The EEOC's
complaint also states that the manager made “repeated
references in front of other restaurant employees and
patrons about [plaintiffs'] breasts” and repeated
referred to them as “freaks,” a contemporary, sexual
slang term, and “whores.”
Id.

The court found these allegations sufficient to satisfy the

plaintiff's burden on a motion to dismiss. Likewise, in the
present

matter,

the

Court

sufficient to state a claim.

finds

that

Stewart

alleges

facts

Stewart alleges that Caton lifted

her shirt and touched her breasts, installed cameras to look down
her

shirt,

and

made

repeated
17

comments

of

a

sexual

and/or

derogatory nature.
b. Retaliation Claim
Stewart contends that she states a Title VII claim against
Modern for retaliation. To establish a prima facie retaliation
claim, Stewart must demonstrate: "(1) that she engaged in an
activity protected by the statute; (2) that she experienced an
adverse employment action following the protected activity; and
(3) that a causal link existed between the protected activity and
the adverse employment action." Evans, 246 F.3d at 352.
In her complaint, Plaintiff alleges that she engaged in a
protected activity when she filed a charge with the EEOC, that
she was terminated immediately, and that her filing of the charge
caused her termination. Given the proximity of the termination to
the charge, it is reasonable to infer at this stage of the
litigation
Moreover,

that

Stewart's

Defendant

does

charge

not

caused

challenge

or

her

termination.

even

mention

the

retaliation claim in his motion beyond stating that he disputes
the factual allegation that Stewart was involuntary terminated.
Nevertheless, given that the Court must accept all well-pleaded
allegations as true for the purposes of the instant motion, the
Court finds that Stewart has pleaded enough facts to state a
retaliation claim against Modern.

18

c. Constructive Discharge
Defendants assert in their reply memorandum that Stewart
should be barred from making claims of constructive discharge
because

she

never

raised

this

issue

in

her

EEOC

charge

and

because she fails to allege sufficient facts to sustain this
claim. The Court agrees that Stewart never mentioned constructive
discharge in her EEOC charge or in her Complaint, but the Court
also finds that Stewart makes no such claim in opposing this
motion

either.

Stewart

only

alleges

that

she

was

actually

discharged on November 29, 2012. The only other allegation in
Stewart's

complaint

"constructive

that

discharge"

could
would

possibly
be

the

be

construed

allegation

that

as
her

physician stated that she should not return to work because of
her intolerable work environment. (Compl., Rec. Doc. 1, ¶ 30)
This, however, appears to speak more to the severity of the
physical manifestations of Stewart's alleged emotional distress.
Therefore, Defendants' constructive discharge argument appears to
be irrelevant to the instant proceedings.
B. State Law Claims
Stewart asserts state law claims for discrimination under
the

Louisiana

Employment

Discrimination

Law

and

for

various

torts, including battery, intentional infliction of emotional

19

distress, and negligent infliction of emotional distress.
1. Claims under the Louisiana Employment Discrimination Law
Defendants assert in their reply

memorandum that Caton may

not be held individually liable under the Louisiana Employment
Discrimination Law because he did not compensate Stewart, but
rather Modern compensated her. See La. R.S. 12:303(2); Dejoie v.
Medley, 9 So.3d 826, 831 (the source of funds used to compensate
the employee is essential to

determining who the employer is

under La. R.S. 12:303(2)). The Court agrees with this argument;
therefore,

Stewart's

claims

under

the

Louisiana

Employment

Discrimination Law purportedly brought against Caton individually
must be dismissed. Stewart does, however, state a claim against
Modern under the Louisiana Employment Discrimination Law for the
reasons discussed below.
Defendants assert that Stewart has failed to state a claim
under the Louisiana Employment Discrimination Law because the
statute only applies to employers who employ "twenty or more
employees within this state for each working day in each of
twenty

or

more

calendar

weeks

in

the

current

or

preceding

calendar year." La. R.S. § 23:302(2) (West 2012). Defendants
assert that Stewart's complaint only alleges that Modern employed
seventeen

employees,

thus

all

20

claims

under

this

statutory

provision must be dismissed. Stewart urges the court to view
Modern and Shore as a single employer, or, in the alternative, to
view the independent contractors used by Modern as employees for
the purposes of this motion. Defendants oppose this argument,
arguing in their reply memorandum that Stewart cannot bring up
new facts, such as her allegation that Shore and Modern are a
single employer, because she did not include Shore in either of
her Complaints. Defendants

also oppose Stewart's application of

the test used in Schweitzer to determine whether two companies
are a single employer.
a. "Single Employer"
While

the

Plaintiff

is

correct

in

her

assertion

that

“superficially distinct entities may be exposed to liability upon
a

finding

they

represent

a

single,

integrated

enterprise:

a

single employer," the Court finds no facts in the complaint that
support

this

claim.4

Schweitzer,

104

F.3d

at

763

(internal

citation omitted).
In Stewart's complaint, she alleges that Modern has over 300

4

To make this determination, the Fifth Circuit has adopted the four
part Trevino test, which considers "(1) interrelation of operations; (2)
centralized control of labor relations; (3) common management; and (4) common
ownership or financial control," wherein the second factor "has traditionally
been most important." Schweitzer, 104 F.3d 761 at 764. In fact, courts often
refine the four-part test "to the single question of which entity made the
final decisions regarding employment matters related to the person claiming
discrimination." Id. (internal citations omitted).

21

employees

with

many

being

falsely

labeled

as

independent

contractors, but makes no mention of Shore. Stewart's complaint
makes

inconsistent

allegations

regarding

Kristi

Yates's

role

—labeling her as Caton's assistant, co–supervisor, employee, and
paramour at different times— but never alleges that Yates is the
owner

of

Shore

or

any

other

company

related

to

Modern.

Conversely, in her opposition, Stewart contends that, although
Modern only has seventeen employees, it has over three-hundred
other workers employed on a contract basis through Shore.5
The Court may not consider the new allegations set forth in
Stewart's opposition to the instant motion. Roebuck v. Dothan
Sec., Inc., No. 12-60649, 2013 WL 697383, *4 (5th Cir. 2013)
(slip copy). Therefore, based on the allegations contained in the
complaint alone, the Court cannot find that Modern and Shore are
a "single employer" for the purposes of applying the Louisiana
Employment Discrimination Law.
b. Independent Contractors
Plaintiff alleges in her complaint that Modern engages the
services of over three hundred workers who, although considered

5

Plaintiff alleges in her opposition that Kristi Yates, owner of Shore,
is the vice-president of Modern as well as the fiancee of Caton. Plaintiff
states that Yates and Caton share an office building and a single office
therein, as well as phone lines, servers, and a kitchen. Plaintiff also
argues that Shore "performs all of its services on behalf of and at the
direction of" Modern. (Pl.'s Opp., Rec. Doc. 27, p. 14)

22

independent

contractors

within

Modern,

should

be

considered

"employees" for the purposes of analyzing a claim under the
Louisiana Employment Discrimination Law. The Fifth Circuit has
adopted a hybrid test "which considers the 'economic realities'
of the work relationship as an important factor in the calculus,
but which focuses more on 'the extent of the employer's right to
control the ‘means and manner’ of the worker's performance.'"
Mares

v.

Marsh,

777

F.2d

1066,

1067

(5th

Cir.

1985)

citing

Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C.Cir.1979). The
factors to consider in this analysis are:
(1) ownership of the equipment necessary to perform the
job; (2) responsibility for costs associated with
operating that equipment and for license fees and
taxes; (3) responsibility for obtaining insurance; (4)
responsibility for maintenance and operating supplies;
(5) ability to influence profits; (6) length of the job
commitment; (7) form of payment; and (8) directions on
schedules and on performing work.
Arbaugh, 380 F.3d at 226 (5th Cir. 2004).6
Plaintiff alleges that the workers are "hourly employees"
who "supply no materials or tools of their own" and "are directly

6

In her opposition, Stewart urges the Court to apply this test, but she
appears to apply it as an alternative to or in conjunction with the "single
employer" test discussed above. The Court notes that while this test and the
single employer test are similar, they are not to be used interchangeably.
Schweitzer, 104 F.3d at 764. This hybrid test is only used to determine if the
three hundred independent contractors that Stewart alleges work for Modern are
"employees," and it is not used to determine whether Shore's workers may be
included as Modern' s employees under a single employer theory. See Id.

23

supervised, directed and controlled by [Caton] and [Modern]."
(Pl.'s Complt., Rec. Doc. 1, ¶ 20) These allegations, taken as
true, are sufficient to overcome the instant motion to dismiss.
The Court does, however, find it problematic that Plaintiff
presents more allegations in her opposition to the instant motion
that, at best muddle, and, at worst, contradict the allegations
in her complaint. Specifically, Stewart states for the first time
in her opposition that these 300 workers are employed by Shore,
not Modern. The Court does not consider facts alleged only in the
opposition

to

a

discovered

more

motion

to

information

dismiss;
that

but,

would

if

render

Plaintiff
her

has

initial

complaint incomplete or untrue, she should amend her complaint at
this early stage of litigation to reflect such new information.
2. State Law Tort Claims
a. Claims Against Caton Individually
i. Battery
"A battery is a harmful or offensive contact with a person,
resulting from an act intended to cause the plaintiff to suffer
such contact .” Landry v. Bellanger, 2002-C-1443, (La. 2003); 851
So.2d 943, 949 (internal citations omitted). Stewart alleges that
Caton lifted her blouse and touched her breasts. These facts,
taken as true, are sufficient to state a claim for battery under

24

Louisiana state law.
ii. Intentional Infliction of Emotional Distress
A claim for intentional infliction of emotional distress
requires a plaintiff to show:
(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,
conduct

585
was

So.2d
"so

at

1209.

outrageous

Plaintiff
in

must

character,

show
and

that

so

Caton's

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.

Liability

does

not

extend

to

mere

insults,

indignities, threats, annoyances, petty oppressions, or other
trivialities." Id.
Taking Stewart's allegations as true, she states a claim for
intentional infliction of emotional distress. While a jury may
later find that Caton's statements and actions were within the
"bounds of decency," determining if Stewart will prevail on the
merits is not the function of the instant 12(b)(6) motion. At the
current

stage

of

litigation,

Stewart

overcome the instant motion to dismiss.

25

states

enough

facts

to

iii. Negligent Infliction of Emotional Distress
Plaintiff asserts that her state law claims must not be
dismissed because she states a claim for negligent infliction of
emotional

distress

under

Duncan.

88

So.3d

at

707-08.

Duncan

requires Stewart to prove "that (1) the defendant's conduct is
negligent

and

accompanied

(2)

by

such

physical

conduct
injury,

caused
illness,

mental
or

disturbance

other

physical

consequences.” Id. Defendants assert in their reply memorandum
that all negligence claims against an employer must be remedied
through

worker's

compensation,

therefore

Stewart's

negligent

infliction of emotional distress claim must be dismissed. Attardo
v. Brocato, 96-1170 (La. App. 4 Cir. 2/5/97), 688 So. 2d 1296,
1297 writ denied, Attardo v. Salvador, 97-0584 (La. 4/18/97), 692
So. 2d 453 (exclusive remedy against [employer] for any such work
related damages falls under worker's compensation unless she can
show that she was injured as the result of an intentional act by
[her employer]."); Gilpin v. Elmer Candy Corp., No. 99-1475, 2000
WL 713195, *3 (E.D. La. June 2, 2000) ("a claim for negligent
infliction of emotional distress arising out of the course and
scope of employment is barred by the exclusive remedy rule of
worker's compensation law.").
The Court agrees with Defendants that this claim must be

26

dismissed

because

Stewart's

exclusive

remedy

for

workplace

negligence is in worker's compensation. Therefore, Defendants'
motion to dismiss must be granted as to Stewart's negligent
infliction of emotional distress claim.
b. Claims Against Modern
Stewart
dismissed

asserts

because

that

Modern

her

law

claims

must

vicariously

is

state

liable

for

not

be

Caton's

tortious conduct. Under Louisiana law, "an employer is liable for
a tort committed by his employee if, at the time, the employee
was

acting

within

the

course

and

scope

of

his

employment."

Baumeister v. Plunkett, 95-2270, (La. 1996); 673 So. 2d 994, 996.
The Supreme Court of Louisiana outlined the following factors to
be considered in holding an employer liable for an employee's
actions:
(1) whether the tortious act was primarily employment
rooted;
(2) whether the act was reasonably incident to the
performance of the employee's duties;
(3) whether the
premises; and

act

occurred

on

the

employer's

(4) whether it occurred during the hours of employment.
Id. at 996-97. It is not necessary for all four factors to be met
for

liability

to

be

found.

Baumeister,

673

So.

2d

at

997.

However, “[a]n employer is not vicariously liable merely because
his employee commits an intentional tort on the business premises
27

during working hours.” Id. at 996 (internal citation omitted).
Rather, for vicariously liability to attach, the employee must be
“acting within the ambit of his assigned duties and also in
furtherance of his employer's objective.” Id. (quoting Scott, 415
So.2d at 329). Actions taken for "purely personal considerations
entirely extraneous to the employer's interest" do not impute
liability on the employer, even when the conduct occurs at work.
Baumeister, 673 So. 2d

at 998 (citing McClain v. Holmes, 460 So.

2d 681, 684 (La.App. 1 Cir. 1984) writ denied, 463 So. 2d 1321
(1985)).
For

example,

in

Baumeister,

the

court

found

that

a

supervisor's sexual assault of one of his subordinates, where a
superior went into the nurse's lounge, said nothing, and sexually
assaulted

a

nurse,

was

not

in

the

course

and

scope

of

the

technician's employment "even in a minor respect." Id. The court
found that the attack was motivated by personal interests and he
did not connect the assault to the employee's job in any way. Id.
(noting that, while this sexual assault was not within the course
and scope of the tortfeasor's employment, the court did not adopt
a rule blanketly labeling all sexual assaults as "personal" in
nature, nor did they adopt a "motivation test" for the purposes
of determining vicarious liability.)

28

When the alleged tortfeasor is owner of the employer entity,
“[t]he line between ‘business’ and ‘personal’ activity is often a
hazy one,” and “there is no black letter rule on when liability
should attach in such situations.” Ermere v. Hartford Ins. Co.,
559 So. 2d 467, 477 (La. 1990). Courts often impose vicarious
liability, however, when “the conduct in question was at least
partially motivated by an intent to serve the interests of the
business.” Ermert, 559 So. 2d

at 477. The discretion to find

vicarious liability is broad in such circumstances, however it
must be borne in mind that “[o]ne of the advantages of creating a
separate entity for the operation of the enterprise is that the
business enterprise is not liable for all of the torts of its
owner.”
With these principles in mind, the Court finds that Stewart
alleges sufficient facts to find it plausible that Modern will be
vicariously liable for Caton's conduct. Moreover, Defendants did
not address this claim in their motion to dismiss.
C. Sufficiency of Complaint
Defendants argue that they cannot adequately defend this
case because Stewart's allegations do not satisfy the pleading
requirements

of

Federal

Rule

of

Civil

Procedure

Rule

8.

Specifically, Defendants complain that Stewart did not state the

29

date on which Caton allegedly touched her breast. In making this
argument, Defendants point to a case from the Northern District
of Illinois wherein the court held that a complaint alleging in
its entirety that "On or about January 27, 1984, Plaintiff, Jonah
Oxman, was terminated by Defendant WLS–TV on the basis of his age
which was 60,” was sufficient to state a claim. Oxman v. WLS-TV,
595 F. Supp. 557, 562 (N.D. Ill. 1984). Apparently, because the
Oxman complaint contains a date, Defendant takes that to mean all
complaints

must

include

a

date.

This

argument

is

completely

without merit. While this Court is not bound by the decisions of
a district court in a different circuit, it is clear that, if
this

sentence

states

a

claim,

then

Stewart's

twenty

page

Complaint, which details her employment, her termination, and the
harassing conduct, is sufficient to state a claim, despite the
fact that she does not include the specific date of one of the
events described in her Complaint.
Accordingly,
IT IS ORDERED that Defendants' Motion to Dismiss (Rec. Doc.
20) is GRANTED inasmuch as Plaintiff brings (a) claims under the
Louisiana Discrimination Law individually against Defendant
Caton, and (b) claims for negligent infliction of emotional
distress.

30

IT IS FURTHER ORDERED that Defendants' Motion to Dismiss
(Rec. Doc. 20) is DENIED in all other respects.
IT IS FURTHER ORDERED that Plaintiff is granted leave to
amend her complaint to remedy the unclear allegations regarding
Shore Enterprises, discussed above.
New Orleans, Louisiana this 16th day of August, 2013.

CARL J. BARBIER
UNITED STATES DISTRICT COURT

31