Pizzolato v. French Market Corporation

Filing 61

ORDER AND REASONS granting 52 Motion for Summary Judgment. Signed by Judge Helen G. Berrigan on 9/9/2015. (kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

FRANK A. PIZZOLATO

CIVIL ACTION

VERSUS

NO. 13-6528

FRENCH MARKET CORPORATION

DIVISION“C”

ORDER AND REASONS
This matter comes before the Court on a Motion for Summary Judgment filed by
Defendant, French Market Corporation (“FMC”). Rec. Doc. 52. Having considered the parties’
memoranda, the record, and the applicable law, the Court GRANTS FMC’s Motion for
Summary Judgment.
I. Background
Plaintiff, Frank A. Pizzolato, a Caucasian, filed this action against FMC seeking damages
for racial discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e-2, et seq., the Louisiana employment discrimination statutes, La. Rev. Stat. § 23:302, et
seq., and for reprisal under the Louisiana Whistleblower Statute, La. Rev. Stat § 23:967. Rec.
Doc. 1.
FMC is a public benefit corporation that oversees and operates public property owned by
the City of New Orleans, including a flea market, farmers market and various commercial
buildings in the French Quarter. Rec. Docs. 52-14 & 54-1. It is governed by a twelve-member
Board of Directors that is appointed by the Mayor of New Orleans, and includes three New
Orleans City Council persons. Id. FMC’s daily operations and management are conducted by the
Executive Director, who reports to the Board of Directors. Id.

On January 12, 2011, FMC’s Board of Directors voted unanimously to appoint Pizzolato
as FMC’s Executive Director. Rec. Doc. 52-14. At that time, the Chairperson was a Caucasian
woman, and the Board of Directors included seven other Caucasians, and four AfricanAmericans. Id.
Pizzolato claims that in the autumn of 2012, he discovered that Montrel’s Bistro, an
African-American owned business that was a FMC tenant, had failed to switch its electricity
account from FMC’s name to its own, as was required by the lease. Rec. Doc. 54-1. Thus, FMC
had been paying for Montrel’s electricity for five years, which amounted to more than $104,000.
Id. Pizzolato claims that he attempted to report this finding at the October 20, 2012, Board of
Directors’ meeting, but the new Chairperson, Demetric Mercadel, an African-American woman,
“interrupted him and told him and told him not to discuss the matter in public and that it should
be discussed in executive session.” Id. The Board of Directors went into executive session, and
Pizzolato claims that two other African-American women on the Board of Directors told him that
the Board of Directors “needed to take care of” Montrel’s because it was an African-American
business. Id. Pizzolato claims that FMC’s permitting Montrel’s to use utilities paid for by FMC
“constitutes theft under Louisiana law and also violates the Louisiana Constitution’s prohibition
against donating public property/funds.” Id. According to Pizzolato, after he informed the Board
of Directors about this issue, Mercadel’s “demeanor and communications towards [him] shifted”
and she “began her efforts to terminate” him. Id.
In his Complaint, Pizzolato alleges that he “excelled in his position until he was
constructively discharged.” Rec. Doc. 1. Specifically, he alleges that on November 29, 2012,
FMC’s Board of Directors asked him to resign, and threatened to terminate his employment if he
did not comply. Id. Pizzolato alleges that FMC “constructively discharged [him] on or about

2

December 31, 2013 because of his race ([C]aucasian) and also in retaliation for his complaints of
workplace act/practices in violation of state law.” Id. Further, Pizzolato alleges that FMC
offered the Executive Director position to an African-American candidate, before hiring his
replacement, who was a Caucasian male. Id.; see also Rec. Doc. 52-1.
FMC filed the instant motion for summary judgment arguing that Pizzolato cannot
establish a prima facie case of race discrimination under Title VII, or the parallel Louisiana
employment discrimination law. Rec. Doc. 52-1. FMC also argues that Pizzolato cannot sustain
a case under the Louisiana Whistleblower Statue. Id. Pizzolato opposes the motion arguing that
there are genuine issues of material fact that preclude summary judgment. Rec. Doc. 54.
II. Law & Analysis
A.

Summary Judgment Standard
The court “shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). An issue is material if its resolution could affect the outcome of the action, and a
genuine issue 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, 106 S.Ct.
2502, 2510, 91 L.Ed.2d 202 (1986); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408-09 (5th
Cir. 2002). When considering a motion for summary judgment, “the court must view the facts
in the light most favorable to the non-moving party and draw all reasonable inferences in its
favor.” Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009). Summary Judgment cannot
be defeated by “conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of
evidence.’” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
3

B.

Title VII and Louisiana State Law Race Discrimination Claims
Title VII provides that it is “an unlawful employment practice for an employer to fail or

refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).
Louisiana Revised Statute § 23:332, similarly provides that it is unlawful employment
discrimination for an employer to “[i]ntentionally fail or refuse to hire or to discharge any
individual, or otherwise to intentionally discriminate against any individual with respect to his
compensation, or his terms, conditions, or privileges of employment, because of the individual’s
race, color, religion, sex or national origin. La. Rev. Stat. § 23:332(A)(1). Because the laws are
substantively similar, jurisprudence interpreting Title VII can be applied in interpreting the
Louisiana employment discrimination laws, La. Rev. Stat. § 23:301, et seq. Brittain v. Family
Servs., Inc., 801 So.2d 457 (La. Ct. App. 2001).
A plaintiff bringing claims under Title VII can use either direct or circumstantial
evidence to prove his case of intentional discrimination. Portis v. First Nat’l Bank of New
Albany, Miss., 34 F.3d 325, 328 (5th Cir.1994). Direct evidence is “evidence which, if believed
proves the fact of discriminatory animus without inference or presumption.” Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002). “Because direct evidence is rare, a plaintiff
ordinarily uses circumstantial evidence to meet the test set out in McDonnell Douglas.” Portis,
34 F.3d at 328.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), the Supreme Court of the United States “established an allocation of the burden of

4

production and an order for the presentation of proof in Title VII discriminatory-treatment
cases.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746, 125 L.Ed2d
407 (1993). First, the plaintiff must establish a prima facie case of discrimination, which creates
a presumption that the employer unlawfully discriminated against the employee. Tex. Dep’t of
Cmty. Affirs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If the
plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to
produce evidence of a legitimate, non-discriminatory reason for the adverse employment action.
Buisson v. Bd. of Supervisors of the La. Cmty. and Technical Coll. Sys., 592 Fed. Appx. 237,
2014 WL 5804127, at *4 (5th Cir. 11/10/2014) (citing McCoy v. City of Shreveport, 492 F.3d
551, 556 (5th Cir. 2007)). “If the employer articulates a legitimate reason for the adverse
employment action, ‘the plaintiff then bears the ultimate burden of proving that the employer’s
proffered reason is not true but instead is a pretext for the real discriminatory . . . purpose.’” Id.
(quoting McCoy, 492 F.3d at 556).
To establish a prima facie case of race discrimination the plaintiff must demonstrate that
he: (1) is a member of a protected group; (2) was qualified for the position at issue; (3) suffered
an adverse employment action, such as termination of his employment; and, (4) was replaced
with someone outside his protected group or was treated less favorably than other similarly
situated employees outside the protected group. Id. (citing McCoy, 492 F.3d at 556).
FMC agreed, for the purposes of its motion for summary judgment, that Pizzolato
satisfies the first two prongs. Rec. Doc. 52-1. However, Pizzolato cannot satisfy the third and
fourth prongs of the prima facie case of race discrimination.

5

1.

Adverse Employment Action

Adverse employment actions include only “ultimate employment decisions such as
hiring, firing, demoting, promoting, granting leave, and compensating.” McElroy v. PHM Corp.,
- - - Fed. Appx. - - -, 2015 WL 4758815, at *2 (5th Cir. 8/13/2015) (quoting Thompson v. City of
Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014)). Pizzolato was not fired. He resigned. A
resignation is actionable under Title VII “only if the resignation qualifies as a constructive
discharge.” Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). “Constructive
discharge occurs when an employee has quit [his] job under circumstances that are treated as an
involuntary termination of employment.” Haley v. Alliance Compressor LLC, 391 F.3d 644, 649
(5th Cir. 1004) (citing Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140, 144 (5th Cir. 1975)). The
plaintiff must demonstrate that “a reasonable person in [his] shoes would have felt compelled to
resign.” Id. at 650 (citing Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 n. 19 (5th Cir.
1994)).

In evaluating a claim of constructive discharge, the court considers the following

factors, singly or in combination:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5)
reassignment to work under a younger [or less
experience/qualified] supervisor; (6) badgering, harassment, or
humiliation by the employer calculated to encourage the
employee’s resignation; or (7) offers of early retirement [or
continued employment on terms less favorable than the employee’s
former status].
Id. at 649-50 (quoting Brown, 237 F.3d at 566). Moreover, “[m]ere verbal threats to fire an
employee alone do not make working conditions so intolerable that a reasonable employee
would feel forced into involuntary resignation.” McElroy, - - - Fed. Appx. - - -, 2015 WL
4758815, at *2 (citations omitted); see also Hargray v. City of Hallandale, 57 F.3d 1560, 1568
6

(11th Cir. 1995) (stating that “resignations can be voluntary even where the only alternative to
resignation is facing possible termination”).
Pizzolato has not proved that any of the factors necessary to demonstrate constructive
discharge are present.

FMC did not demote him, reduce his salary, reduce his job

responsibilities, reassign him, badger, harass, or humiliate him, or offer early retirement. In his
affidavit, Pizzolato declared that the Board of Directors threatened to fire him if he did not
resign, but he did not present any evidence regarding the factors that the Court considers with
respect to a claim of constructive discharge.

Because verbal threats of termination are

insufficient to elevate a resignation to the status of a constructive discharge, Pizzolato has not
met his burden of demonstrating that he suffered an adverse employment action.
2.

Replaced with Someone Outside His Protected Group 1

Pizzolato argues that he was replaced with someone outside of his protected group
because FMC hired an African-American woman as the interim Executive Director after he
resigned, and then offered the job to a different African-American woman, who declined the
offer of employment. Rec. Doc. 54. FMC ultimately hired a Caucasian male to permanently
replace Pizzolato as the Executive Director. Id.
These facts prove that Pizzolato was not replaced with someone outside his protected
group.

Demonstrating that a temporary replacement was outside of the protected class is

insufficient to establish a prima facie case of discrimination when the permanent replacement is
in the plaintiff’s class. Mercer v. Capitol Mgmt. and Realty, Inc., 242 Fed. Appx. 162, 163 (5th
Cir. 2007). Further, FMC’s allegedly offering employment to someone outside of Pizzolato’s
class after Pizzolato resigned does not satisfy the forth prong required to demonstrate a prima
1

Pizzolato does not allege that he was treated less favorably than similarly situated employees outside the
protected group.

7

facie case of race discrimination when Pizzolato’s permanent replacement was in his class. 2
Therefore, Pizzolato has failed to demonstrate a prima facie case of race discriminations under
Title VII or the parallel Louisiana law, and FMC’s motion for summary judgment is GRANTED
as to these claims.
C.

Louisiana Whistleblower Statue Claim
The Louisiana Whistleblower Statute provides in pertinent part:
A. An employer shall not take reprisal against an employee who in
good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice
that is in violation of state 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 law.

La. Rev. Stat. § 23:967(A). Reprisal is defined as “firing, layoff, loss of benefits, or any
discriminatory action the court finds was taken as result of an action by the employee that is
protected” under the statute. Id. at § 23:967(C)(1). To prevail on a claim under this statute, “the
employee must establish that the employer engaged in workplace conduct constituting an actual
violation of state law.” Encalarde v. New Orleans Ctr. for Creative Arts/Riverfront, 14-2430 (La.
2/13/15); 158 So.3d 826 (citing Accardo v. La. Servs. & Indem. Co., 05–2377 (La. App. 1 Cir.
6/21/06); 943 So.2d 381, 387; Hale v. Touro Infirmary, 04–0003 (La. App. 4 Cir. 11/3/04); 886
So.2d 1210, writ denied, 05–0103 (La. 3/24/05); 896 So.2d 1036).
2

In Jameson v. Arrow Co., 75 F.3d 1528, 1532 (11th Cir. 1996), the United States Court of Appeals for
the Eleventh Circuit found that in reduction-in-force cases an inference of intentional discrimination may
arise when a job for which the plaintiff is qualified, and for which he applied, is available at the time of
his termination and the employer offers the job to an individual outside of the protected class. This
precedent is inapplicable because the case at bar is not a reduction-in-force case.

8

Pizzolato claims he was constructively discharged after “he complained and then
publically disclosed that one of FMC’s tenants, Montrel’s Bistro had committed theft of utility
service under La.R.S. 14:67.6 by knowingly using FMC’s in excess of $104,000 in electricity for
five years, when its lease required Montrel’s to pay for the electricity.” Rec. Doc. 54.
Pizzolato’s revealing Montrel’s alleged theft of FMC’s electricity cannot form the basis of a
claim under § 23:967, because the statute requires that the employer, in this case FMC, have
engaged in a violation of state law.
Pizzolato alternatively argues that FMC’s allowing Montrel’s to use its electricity
violates the Constitution of Louisiana. Article VII, Section 14 of the Constitution of Louisiana
provides that “the funds, credit, property, or things of value of the state or any political
subdivision shall not be loaned, pledged or donated to or for any person, association, or
corporation.” However, this provision is not applicable to public benefit corporations because
they are not political subdivisions of the state. La. Rev. Stat. § 1051(F). FMC is a public benefit
corporation. See French Mkt. Vendors Ass’n, Inc. v. French Mkt. Corp., 12-0964 (La. App. 4 Cir.
2/13/13); 155 So.3d 514. Therefore, Article VII, Section 14 of the Constitution of Louisiana is
inapplicable, and Pizzolato cannot rely on it to support his contention that FMC violated state
law. As a result, Pizzolato cannot sustain his claim under the Louisiana Whistleblower Statute,
and FMC’s motion for summary judgment is GRANTED as to that claim.

9

Accordingly, IT IS ORDERED that FMC’s motion for summary judgment (Rec. Doc.
52) is GRANTED, and Pizzolato’s Complaint is DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 9th day of September, 2015.

____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

10