Chen v. Ochsner Clinic Foundation et al

Filing 10

ORDER AND REASONS granting in part and denying in part 3 Motion to Dismiss for Failure to State a Claim. Signed by Judge Mary Ann Vial Lemmon on 1/9/14. (cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HUI G. CHEN

CIVIL ACTION

VERSUS

NO: 13-5808

OCHSNER CLINIC FOUNDATION
AND OCHSNER CLINIC, A
PROFESSIONAL CORPORATION

SECTION: "S" (3)

ORDER AND REASONS
IT IS HEREBY ORDERED that Ochsner Clinic Foundation's Motion for Partial Dismissal
for Failure to State a Claim Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc.
#3) is GRANTED as to plaintiff's claim for negligence, and his claims under Louisiana's Final
Paycheck Statute and Whistleblower Statute, Louisiana Revised Statues §§ 23:632 and 23:967,
respectively.

The motion is DENIED as to plaintiff's claim under Louisiana's Workers'

Compensation Retaliation Statute, La. Rev. Stat. § 23:1361, and his claim for intentional infliction
of emotional distress.
BACKGROUND
This matter is before the court on a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure filed by defendant, Ochsner Clinic Foundation. Ochsner argues
that plaintiff's Louisiana state law claims against it should be dismissed for failure to state a claim
upon which relief can be granted.1
Plaintiff, H.I. G. Chen, alleges that he began working for Ochsner as an electrician at
Ochsner's Brent House Hotel. In April 1994, he was transferred to one of Ochsner's hospitals and
worked on the TeleLift system, which carried documents and other items behind walls and above

1

Ochsner's motion to dismiss does not address plaintiff's discrimination claims brought
under federal law.

the ceilings throughout the hospital. In late 2005, the hospital became "paperless" and began
eliminating the TeleLift System. Thereafter, Chen was reassigned to work on the tube system which
carried medicine, patient test specimens, blood and other items to various places in the hospital.
Chen alleges that in July 2011, he received five incident reports that stated he had low
evaluation scores from 2010. Chen claims that this was "in an attempt to intimidate and terminate
[him] because Gary (white) and Eric (white) wanted to get rid of the foreigner and replace him with
a white guy after 17 years of service."
Chen also alleges that he sprained his ankle at work on September 14, 2011, "while repairing
a pipe in the ceiling," after asking for a helper and having the request denied by his supervisors.
Chen claims that he was treated in the hospital's emergency room, and then participated in physical
therapy. Chen alleges that he used two weeks of general purpose time, and then was on short term
disability until November 16, 2011. Chen made a workers' compensation claim regarding the
incident.
On September 11, 2013, Chen filed this lawsuit in which he alleges that after his September
14, 2011, injury and subsequent workers' compensation claim, his co-workers and supervisors
discriminated against him, and ultimately terminated him. Chen brought claims for race and national
origin discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and
42 U.S.C. § 1981; under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. and the
corresponding Louisiana law, La. Rev. Stat. § 23:322, et seq.; for discrimination with respect to his
workers' compensation claim, La. Rev. Stat. § 23:1361; under the Louisiana Whistleblower Statute,

2

La. Rev. Stat. 23:967; under the Louisiana's Last Paycheck Statute, La. Rev. Stat. § 23:632, and for
intentional infliction of emotional distress and negligence under Louisiana tort law.
ANALYSIS
A.

Rule 12(b)(6) of the Federal Rules of Civil Procedure
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a

complaint for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6)
motion to dismiss, enough facts to state a claim for relief that is plausible on its face must be
pleaded. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl.
v. Twombly, 127 S.Ct. 1955, 1964-65 & 1973 n. 14 (2007)). A claim is plausible on its face when
the plaintiff pleads facts from which the court can “draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “Factual
allegations must be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl., 127 S.Ct. at
1965. The court “must accept all well-pleaded facts as true and view them in the light most
favorable to the non-moving party.” In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir.
2008). However, the court need not accept legal conclusions couched as factual allegations as true.
Iqbal, 129 S.Ct. at 1949-50. In considering a motion to dismiss for failure to state a claim, a district
court may consider only the contents of the pleading and the attachments thereto. Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing FED. R. CIV. P. 12(b)(6)).
B.

Rule 8(a)(2) of the Federal Rules of Civil Procedure
Rule 8(a)(2) of the Federal Rules of Civil Procedure states that pleadings must contain a

short and plain statement of the claim showing that the pleader is entitled to relief. To comply with

3

Rule 8(a)(2) a plaintiff does not need to plead specific facts, but only “‘give the defendant fair notice
of what the. . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 127 S.Ct.
1955 (2007) (quoting Conley v. Gibson, 78 S.Ct. 99, 103 (1957)). Further, if a complaint alleges
facts upon which relief can be granted, the form is not important, even if it does not correctly
categorize the legal theory giving rise to the claim. Peavy v. WFAA-TV, Inc., 221 F.3d 158, 167
(5th Cir. 2000) (citing Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 604 (5th Cir. 1981)).
C.

Louisiana's Workers' Compensation Retaliation Statute, La. Rev. Stat. § 23:1361
Chen alleges that he was terminated in retaliation for filing a workers' compensation claim

regarding his September 14, 2011, accident in violation of La. Rev. Stat. § 23:1361(B), which states:
No person shall discharge an employee from employment because of
said employee having asserted a claim for [workers' compensation]
benefits under the provisions of this Chapter or under the law of any
state or of the United States. Nothing in this Chapter shall prohibit an
employer from discharging an employee who because of injury can
no longer perform the duties of his employment.
Temporal proximity alone is insufficient to support a claim for retaliatory discharge under
Louisiana law. Woolsey v. Delta Disposals, L.L.C., 914 So.2d 618, 621 (La. Ct. App. 2005). “In
order to be entitled to recover for retaliatory discharge under La. R.S. 23:1361, the
plaintiff/employee must establish by a preponderance of the evidence that he was discharged
because he asserted a workers' compensation claim, either by presenting direct evidence that the
assertion of a workers' compensation claim was the reason for the discharge, or presenting
circumstantial evidence sufficient to establish more probably than not that the reason for the
discharge was the assertion of the workers' compensation claim.” Id. (citing Chivleatto v.
Sportsman's Cove, Inc., 907 So.2d 815 (La. Ct. App. 2005)). “If the employer gives a
nondiscriminatory reason for the discharge, and presents sufficient evidence to prove more probably
4

than not that the real reason for the employee's discharge was something other than the assertion of
the workers' compensation claim, the plaintiff is precluded from recovery.” Id. “If the employer
offers another reason for firing the workers' compensation claimant, the trial court must ascertain
the employer's true reason or motive based on the facts presented." Id.
In paragraph 6 of the complaint Chen alleges:
On or about the 15th day of September 2011, Plaintiff was injured in
a work related accident and filed a workers' compensation claim.
Plaintiff was off of work for approximately two months. After his
return, Plaintiff was subjected to systematic and intentional
discrimination in direct retaliation and reprisal for having brought a
claim of workers' compensation.
In this paragraph, Chen clearly alleges that Ochsner retaliated against him for filing a workers'
compensation claim. These allegations are sufficient to survive a motion to dismiss because they
sufficiently place Ochsner on notice of Chen's claim against it in compliance with Rule 8(a)(2).
Whether Chen can prevail on this claim is beyond the scope of a motion to dismiss. Therefore,
Ochsner's motion to dismiss Chen's workers' compensation retaliation claim under La. Rev. Stat.§
23:1261 is DENIED.
D.

Intentional Infliction of Emotional Distress
Chen alleges that he was subjected to "severe emotional distress" as a result of Ochsner's

discriminatory and retaliatory actions, which allegedly included placing a cooked egg yoke in his
desk, which he viewed as a racist prank.
To recover for intentional infliction of emotional distress, a plaintiff must establish: (1) that
the defendant's conduct 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 substantially certain to result from his conduct. White v.
5

Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). The conduct complained of must be so outrageous
and so extreme in degree as to go beyond all possible bounds of decency as to be considered
intolerable to a civilized community. Id. Liability does not extend to insults, indignities, or threats.
Id. In cases of employment disputes, a cause of action for intentional infliction of emotional distress
exists only when the case involves "a pattern of deliberate, repeated harassment over a period of
time." Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1025 (La. 2000).
In paragraph 13 of the complaint, Chen alleges that Ochsner's "actions amount to intentional
infliction of emotional distress" that caused him damages. This allegation is sufficient to survive
a motion to dismiss because it sufficiently places Ochsner on notice of Chen's claim against it in
compliance with Rule 8(a)(2). Whether Chen can prevail on this claim is beyond the scope of a
motion to dismiss. Therefore, Ochsner's motion to dismiss Chen's intentional infliction of emotional
distress claim is DENIED.
E.

Negligence
Chen alleges a negligence claim against Ochsner with respect to his September 14, 2011,

accident. Specifically, in paragraph 7 of the complaint he alleges that Ochsner "owed a duty to
provide a safe environment, free of defects and hazards to patrons, customers and employees, or in
the alterative to warn of any defects or hazards and Defendant breached that duty. Defendant's
breach of its duty was a cause in fact of Plaintiff's resulting injuries."
Under the Louisiana Workers' Compensation Act, worker's compensation benefits are the
exclusive remedy of an employee against an employer or any injury, compensable sickness, or
disease. LA. REV. STAT. § 23:1032(A). Chen alleged in his complaint that he elected to file a
workers' compensation claim for his injuries. Thus, pursuant to the workers' compensation

6

exclusivity provision of La. Rev. Stat. § 23:1032(A), he cannot maintain a negligence claim against
Ochsner, and that claim is DISMISSED.
F.

Louisiana's Whistleblower Statute, La. Rev. Stat. § 23:967
In paragraph 15 of the complaint, Chen alleges that he is entitled to attorneys' fees pursuant

to Louisiana's Whistleblower Statute, La. Rev. Stat. § 23:967, which provides, in pertinent part:
An employer shall not take reprisal against an employee who in good
faith, and after advising the employer of the violation of the law: (1)
Discloses or threatens to disclose a workplace act or practice that is
in violation of the law. (2) Provides information to or testifies before
any public body conducting an investigation, hearing, or inquiry into
any violation of law. (3) Objects to or refuses to participate in an
employment act or practice that is in violation of the law.
La. Rev. Stat. § 23:697(A). United States Court of Appeals for the Fifth Circuit has stated that Title
VII's framework for retaliation applies to a reprisal claim under the Louisiana Whistleblower Statute.
Smith v. AT & T Solutions, Inc., 90 Fed. Apex. 718, 723 (5th Cir.2004). Under Title VII, to
establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a protected
activity; (2) he suffered an adverse employment action; and (3) a causal link existed between the
protected activity and the adverse action. Aryain v. Wal–Mart Stores Tex. LP, 534 F.3d 473, 484
(5th Cir.2008).
Chen has not alleged that he was retaliated against for engaging in one of the activities
protected by the Louisiana Whistleblower Statute. He has not alleged that he disclosed or threatened
to disclose a workplace act or practice that is in violation of the law; provided information to or
testified before any public body conducting an investigation, hearing, or inquiry into any violation
of law; or, objected to or refused to participate in an employment act or practice that was in violation

7

of the law. Therefore, Chen has not stated a claim under La. Rev. Stat. § 23:967, and his claim
under that statute is DISMISSED.
G.

Louisiana's Final Paycheck Statute, La. Rev. Stat. § 23:632
In paragraph 15 of the complaint, Chen alleges that he is entitled to attorneys' fees pursuant

to Louisiana's Final Paycheck Statute, La. Rev. Stat. § 23:632, which provides:
Any employer who fails or refuses to comply with the provisions of
R.S. 23:6312 shall be liable to the employee either for ninety days
wages at the employee's daily rate of pay, or else for full wages from
the time the employee's demand for payment is made until the
employer shall pay or tender the amount of unpaid wages due to such
employee, whichever is the lesser amount of penalty wages.
Reasonable attorney fees shall be allowed the laborer or employee by
the court which shall be taxed as costs to be paid by the employer, in
the event a well-founded suit for any unpaid wages whatsoever be
filed by the laborer or employee after three days shall have elapsed
from the time of making the first demand following discharge or
resignation.
LA. REV. STAT. § 23:632.
In order to recover pursuant to La. Rev. Stat. § 23:632, plaintiff must prove that “(1) wages
were due and owing; (2) demand for payment was made where the employee was customarily paid;
and (3) the employer did not pay upon demand.” Becht v. Morgan Building & Spas, Inc., 843 So.2d
1109, 1112 (La. 2003).

2

La. Rev. Stat. 23:631 provides, in pertinent part:
A. (1)(a) Upon the discharge of any laborer or other employee of any kind
whatever, it shall be the duty of the person employing such laborer or other
employee to pay the amount then due under the terms of employment,
whether the employment is by the hour, day, week, or month, on or before
the next regular payday or no later than fifteen days following the date of
discharge, whichever occurs first.

8

Chen does not allege that Ochsner refused to pay upon a demand for wages that were due
and owing at the time of his termination. Therefore, Chen has not stated a claim under La. Rev. Stat.
§ 23:967, and his claim under that statute is DISMISSED.
CONCLUSION
IT IS HEREBY ORDERED that Ochsner Clinic Foundation's Motion for Partial Dismissal
for Failure to State Claim Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc.
#3) is GRANTED as to plaintiff's claim for negligence, and his claims under Louisiana's Final
Paycheck Statute and Whistleblower Statute, Louisiana Revised Statues §§ 23:632 and 23:967,
respectively.

The motion is DENIED as to plaintiff's claim under Louisiana's Workers'

Compensation Retaliation Statute, La. Rev. Stat. § 23:1361, and his claim for intentional infliction
of emotional distress.

9th
New Orleans, Louisiana, this _____ day of January, 2014.

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

9