Nastasi et al v. Ilawan et al
Filing
17
ORDER AND REASONS the Court DENIES defendants' motion 10 for summary judgment on plaintiffs' claims against Family Dentistry but GRANTS summary judgment on the claims against defendant Charlie P. Ilawan, DDS. The Court also GRANTS with p rejudice defendants' motion to dismiss plaintiffs' state law negligence claims. Finally, the Court DENIES AS MOOT defendants' motion to dismiss plaintiffs' purported claim for violations of parish law, as plaintiffs have asserted no such claim.. Signed by Chief Judge Sarah S. Vance on 5/13/14.(jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LISA NASTASI, WIFE OF/AND
GARY NASTASI
CIVIL ACTION
VERSUS
NO: 14-218
CHARLIE P. ILAWAN, D.D.S.,
APDC, d/b/a FAMILY DENTISTRY,
AND CHARLIE P. ILAWAN, D.D.S.
ORDER AND REASONS
SECTION: R
Defendants Charlie P. Ilawan, D.D.S. ("Ilawan") and Charlie
P. Ilawan, D.D.S., APDC, d/b/a Family Dentistry ("Family
Dentistry") (collectively, "defendants"), have filed a motion
seeking to dismiss Lisa and Gary Nastasi's Title VII sex
discrimination claims, as well as their Louisiana state law
claims for sex discrimination, negligence, negligent infliction
of emotional distress, and violations of the laws of the Parish
of Washington. In the alternative, defendants move for partial
summary judgment on these claims. After reviewing the briefs of
all parties, the Court has determined that oral argument is not
necessary.
Because both parties attach affidavits in support of their
positions on the state and federal discrimination claims, the
Court treats defendants' motion as one for summary judgment as to
those claims only. The Court denies the motion as to plaintiffs'
claims against Family Dentistry but grants summary judgment on
the claims against Ilawan. The remainder of defendants' motion is
properly treated as a motion to dismiss. The Court dismisses
plaintiffs' state law negligence claims against both Ilawan and
Family Dentistry, but it denies as moot defendants' motion to
dismiss plaintiffs' purported claim for violations of parish law,
as plaintiffs have asserted no such claim.
I.
BACKGROUND
In May 2012, Lisa Nastasi was hired as a dental assistant by
Family Dentistry.1 She alleges that she worked full time and
reported to the Family Dentistry office located in Bogalusa,
Louisiana.2 During her employment, Ilawan was her immediate
boss.3 Nastasi alleges that within a month of her employment,
Ilawan began to make unwelcome sexual advances towards her and
that these physical and verbal advances became progressively more
aggressive.4 She alleges that she was constructively discharged
when, after Ilawan forcibly grabbed and fondled her breasts, she
found it necessary to leave her job.5
Nastasi filed charges of employment discrimination against
the defendants with the Equal Employment Opportunity Commission
1
R. Doc. 1-2 at 2.
2
Id.
3
Id. at 5.
4
Id. at 4-5.
5
Id. at 2,5.
2
("EEOC") and the Louisiana Commission on Human Rights.6 On
September 18, 2013, the EEOC issued a Dismissal and Notice of
Rights to sue, entitling Nastasi to initiate a civil action
against the defendants.7 The notice indicated that the EEOC was
closing its file on plaintiff's charges because "[t]he respondent
employs less than the required number of employees or is not
otherwise covered by the statutes."8 Plaintiffs filed suit in
Louisiana state court, and defendants removed the case to this
Court.
II.
STANDARD
To survive a Rule 12 (b)(6) motion to dismiss, the plaintiff
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, 570
(2007)). A claim is facially plausible “when the plaintiff pleads
factual content that allows 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
6
Id. at 3.
7
Id. at 2.
8
R. Doc. 10-6.
3
plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th
Cir. 2009).
A legally sufficient complaint need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause
of action. Id. In other words, the face of the complaint must
contain enough factual matter to raise a reasonable expectation
that discovery will reveal evidence of each element of the
plaintiff’s claim. Lormand, 565 F.3d at 257. If there are
insufficient factual allegations to raise a right to relief above
the speculative level, or if it is apparent from the face of the
complaint that there is an insuperable bar to relief, the Court
must dismiss the claim. Twombly, 550 U.S. at 555.
In reviewing a motion to dismiss, the Court is limited to
the complaint, its proper attachments, documents incorporated
into the complaint by reference, and matters of which the Court
may take judicial notice. See Randall D. Wolcott, M.D., P.A. v.
Sebelius, 635 F.3d 757, 763 (5th Cir. 2011). If the parties
present matters outside the pleadings and the Court considers
them, the Court must treat the motion as one for summary judgment
under Rule 56.
Fed. R. Civ. P. 12(d). A party can seek summary
judgment at any time until 30 days after the close of all
discovery. Fed. R. Civ. P. 56(b). Here, both parties attach
affidavits to their briefs on this motion and rely on the
4
affidavits with respect to the state and federal discrimination
claims. The Court therefore deems it appropriate to convert the
motion to one for summary judgment as to those claims.
Summary judgment is warranted when “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); 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
refrains from making credibility determinations or weighing the
evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398 (5th Cir. 2008). The Court must draw all
reasonable inferences 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)
(internal quotation marks omitted).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with 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, 1263-64 (5th
5
Cir. 1991)(citation omitted). 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 party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party 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.
Id. at 325. See also 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.’”) (citing Celotex, 477 U.S. at 332).
III. DISCUSSION
A.
Title VII Claim Against Family Dentistry
6
Title VII makes it unlawful for "employers" to discriminate
against their employees based on sex. 42 U.S.C. § 2000e-2(a). The
statute defines an "employer" as
a person engaged in an industry affecting commerce who has
fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding
calendar year . . . .
42 U.S.C. § 12111(5)(A). Defendants contend that Family Dentistry
did not have the requisite number of employees to qualify as an
employer under the statute. In support of this assertion, they
point to the EEOC's conclusion that Family Dentistry "employs
less than the required number of employees or is not otherwise
covered by the statutes."9 Defendants also introduced the
affidavit of Family Dentistry's office manager, Judy Perrette,
who attested that "at no time did Employer employ fifteen (15) or
more employees within this state for each working day in each of
twenty or more calendar weeks in the current year 2013 or the
preceding year 2012."10
Plaintiffs' complaint alleges that defendants "were
'employers' as defined by Section 701(b) of the Title VII of the
civil Rights Act of 1964 . . . and are thus covered by and
9
10
R. Doc. 10-6 at 1.
R. Doc. 10-7.
7
subject to the provisions and mandates of Title VII.11 It also
alleges that Family Dentistry has two office locations: one in
Bogalusa, and a second in Covington. Lisa Nastasi submitted an
affidavit in which she makes the following assertion:
It is my personal belief that at least fifteen people were
employed by Carlito "Charlie" Ilawan, D.D.s., and/or Charlie
P. Ilawan, D.D.S., a Professional Dental Corporation d.b.a.
Family Dentistry at the time of my employment. My belief is
based upon the fact that Family Dentistry has two office
locations and each office location is fully staffed. That
is, each office has clerical employees, dentists, dental
hygienists, dental assistants and janitorial staff.12
Plaintiffs further indicate that "[a]bsolutely no discovery has
been conducted whatsoever in this case, and the parties have
waived the exchange of initial disclosures until this motion has
been ruled upon."13
Because plaintiffs have not had the
opportunity to depose Perrette or to request the production of
Family Dentistry's personnel records, they contend that they lack
the information necessary to support their opposition to
defendant's motion for summary judgment.14
11
R. Doc. 1-2 at 3.
12
R. Doc. 16-1 at 3.
13
Plaintiffs' Statement of Material Facts, R. Doc. 16-3 at
3; See also Plaintiffs' Memorandum in Opposition, R. Doc. 16 at
4.
14
Plaintiffs also point out that the EEOC's letter does not
specify whether the dismissal was based on the number of Family
Dentistry employees or a determination that Family Dentistry "is
not otherwise covered by the statutes." In any event, the EEOC's
determination is not binding on this Court, see Price v. Rosiek
Const. Co., 509 F.3d 704, 708-09 (5th Cir. 2007), and it is
8
If a nonmovant shows by affidavit or declaration that, for
specified reasons, he or she cannot present facts essential to
justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
appropriate order. Fed. R. Civ. P. 56(d). The Rule is "designed
to safeguard against a premature or improvident grant of summary
judgment." Doores v. Robert Res., LLC, CIV.A. 12-1499, 2013 WL
4046266, at *1 (E.D. La. Aug. 8, 2013) (citing Washington v.
Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990)). Rule
56(d) motions are "generally favored, and should be liberally
granted." Id. (citing Stearns Airport Equip. Co. v. FMC Corp.,
170 F.3d 518, 534 (5th Cir. 1999)). To justify relief, the party
opposing summary judgment must show (1) why he or she needs
additional discovery, and (2) how the additional discovery will
likely create a genuine issue of material fact. Chenevert v.
Springer, 431 F. App'x 284, 287 (5th Cir. 2011).
Plaintiffs satisfy this standard. They identify the
discovery they intend to seek and have explained how the
information sought will resolve the question of whether
defendants are covered by Title VII. Accordingly, the Court
impossible to tell whether the EEOC was aware of Family
Dentistry's second location when it calculated the number of
employees.
9
denies defendants' motion for summary judgment on this claim
without prejudice.
B.
Title VII Claim Against Ilawan
Plaintiffs' petition for damages asserts that both Family
Dentistry and Ilawan are "employers" as defined by Title VII.15
Based on this statement, defendants believe that plaintiffs have
asserted a Title VII claim against Ilawan in his individual
capacity. Defendants seek summary judgment on this claim because
"there is no individual liability under Title VII," citing Smith
v. Amedisys, Inc., 298 F.3d 434, 448 (5th Cir. 2002). Plaintiffs
did not respond to this argument.
First, it does not appear that plaintiffs actually assert a
Title VII claim against Ilawan individually. Paragraph 20 of the
petition states that Family Dentistry–not Ilawan–"is responsible
and liable as an employer for the actions of Defendant, Dr.
Ilawan," in part because Ilawan "is a partial owner and/or
partner of [Family Dentistry] and has the real authority to make
personnel decisions." The petition further reads:
Defendant, Dr. Ilawan, as a partner and/or manager and/or
sole or partial owner in a business entity is deemed an
agent of the entity thus rendering the Defendant, [Family
Dentistry], liable for the individual Defendant's
15
R. Doc. 1-2 at 3.
10
wrongdoings committed within the course and scope of his
participation within this business.16
It appears that plaintiffs seek to hold Family Dentistry
liable under respondeat superior for Ilawan's conduct to the
extent that Ilawan acted as an agent of Family Dentistry. The
statute defines "employer" to include any agent of an employer.
42 U.S.C. § 2000e(b). In construing the term "'any agent,' courts
have found immediate supervisors to be employers under the Act
when they have been delegated an employer's traditional rights,
such as hiring and firing." Humphreys v. Med. Towers, Ltd., 893
F. Supp. 672, 688 (S.D. Tex. 1995) (citing Harvey v. Blake, 913
F.2d 226, 227 (5th Cir. 1990)). The Fifth Circuit has concluded,
however, that "Congress's purpose in extending the definition of
an employer to encompass an agent in Section 2000e(b) was simply
to incorporate respondeat superior liability into Title VII."
Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir.
1999). Accordingly, an "agent" may qualify as an "employer" only
when acting in his "official" capacity, and "finding an
individual employee of a private corporation liable in his
"official" capacity is tantamount to finding the corporation
liable." Humphreys, 893 F. Supp. at 688. A plaintiff therefore
may not assert claims against both her employer and the
employer's agent in his official capacity because of the risk of
16
Id. at 6 (emphasis added).
11
double recovery against the employer. Smith, 298 F.3d at 449
(citing Indest, 164 F.3d at 262). See also Baldwin v. Layton, 300
F. App'x 321, 323 (5th Cir. 2008) ("Individuals are not liable
under Title VII in either their individual or official
capacities.") (quoting Ackel v. Nat'l Commc'ns, Inc., 339 F.3d
376, 382 n. 1 (5th Cir. 2003)).
In accordance with the statutory framework, plaintiffs'
petition names Family Dentistry as the responsible party for any
Title VII violations that occurred while either defendant was
acting as an employer within the meaning of the statute. It says
nothing about individual liability. In an abundance of caution,
however, the court grants defendants' motion to the extent that
plaintiff seeks to recover from Ilawan under Title VII either
individually or in his "official" capacity.
C.
State Law Discrimination Claim Against Family Dentistry
Defendants argue that the Court should grant summary
judgment dismissing plaintiffs' sex discrimination claim under
the Louisiana Employment Discrimination Law ("LEDL") because the
LEDL applies only to employers who "employ[] twenty or more
employees within [Louisiana] for each working day in each of
twenty or more calendar weeks in the current or preceding
calendar year." La. Rev. Stat. § 23:302(2). The Court denies
summary judgment on this claim for the same reasons it denies
12
summary judgment on plaintiffs' Title VII claim against Family
Dentistry.
D.
State Law Discrimination Claim Against Ilawan.
Defendants also seek dismissal of plaintiffs' LEDL claim
against Ilawan individually. Unlike Title VII, the LEDL does not
define "employer" to include the agents of an employer, and
employer status turns on the source of the funds used to
compensate the employee. Griffith v. City of New Orleans, CIV.A.
11-245, 2013 WL 2555787, at *5 (E.D. La. June 10, 2013) (citing
Dejoie v. Medley, 9 So.3d 826, 830-31 (La. 2009). Defendants
contend, and plaintiffs do not dispute, that Lisa Nastasi was
compensated by Family Medicine and not by Ilawan. Accordingly,
the Court grants summary judgment dismissing plaintiffs' LEDL
claim against Ilawan with prejudice.
E.
Claims for Negligence and Negligent Infliction of
Emotional Distress
Defendants argue that plaintiffs' claims of negligence and
negligent infliction of emotional distress are barred by the
Louisiana Worker's Compensation Act. The Act provides the
exclusive remedy for personal injuries caused by an employer's or
coworker's negligence when those injuries arise out of and in the
course of employment. La. Rev. Stat. §§ 23:1031 and 23:1032;
Chaffin v. John H. Carter Co., Inc., CIV.A. 96-2127, 1998 WL
19624, at *7 (E.D. La. Jan. 20, 1998). See also La. Rev. Stat. §
13
23:1021(8) (defining "personal injury" to include some forms of
mental injury).
Plaintiffs did not respond to this argument in their
opposition brief. Nor do they allege in their petition for
damages that Ilawan's negligence occurred outside the course and
scope of his employment. Cf. Citizen v. Theodore Daigle & Bro.,
Inc., 418 So. 2d 598, 601 (La. 1982) ("[T]ort immunity does not
extend to a coemployee who was not engaged in the normal course
and scope of his employment at the time of the injury.")
Accordingly, the Court dismisses with prejudice plaintiffs'
negligence-based claims against both Ilawan and Family Dentistry.
F.
Claims for Violations of the Laws of the Parish of
Washington
Defendants seek dismissal of a claim they believe plaintiffs
have asserted for violations of the "laws of the Parish of
Washington." The petition states that defendants are liable for
[a]ny and all other acts and/or omissions which may be shown
at the trial of this matter, all of which are a direct
violation of the laws of the State of Louisiana and the
Parish of Washington.17
Plaintiffs make clear in their opposition that they currently are
not asserting any claim based on a violation of parish law.
Rather,
[t]he sole purpose of this language is to provide Defendant
with adequate notice that Plaintiffs reserve their right to
17
R. Doc. 1-2 at 8.
14
make claims for damages based upon conduct and claims for
relief that were unknown to Plaintiffs at the time the
Petition for Damages was filed but that may be revealed
through the course of these proceedings.18
Because plaintiffs do not assert a claim for violations of
parish law, defendants' motion to dismiss such a claim is denied
as moot.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES defendants'
motion for summary judgment on plaintiffs' claims against Family
Dentistry but GRANTS summary judgment on the claims against
Ilawan. The Court also GRANTS with prejudice defendants' motion
to dismiss plaintiffs' state law negligence claims. Finally, the
Court DENIES AS MOOT defendants' motion to dismiss plaintiffs'
purported claim for violations of parish law, as plaintiffs have
asserted no such claim.
New Orleans, Louisiana, this 13th day of May, 2014.
__
________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
18
R. Doc. 16 at 8-9.
15
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