Barrera v. Aulds et al

Filing 130

ORDER AND REASONS GRANTING 123 Motion for Summary Judgment; 125 Motion for Summary Judgment and that all of plaintiff's claims are DISMISSED WITH PREJUDICE. Judgment will be separately entered. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 5/25/2016. (my)(CC:Plaintiff via email and postal mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
YESENIA BARRERA

CIVIL ACTION

VERSUS

NO. 14-1889

MICHAEL AULDS ET AL.

MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTION
In this employment discrimination action, plaintiff, Yesenia Barrera, brings several
claims against two sets of defendants. She alleges that defendants, Acme Truck Line, Inc.
and its officers Michael Aulds and Michael Coatney (collectively “Acme”), violated the
Louisiana Employment Discrimination Law, La. Rev. Stat. § 23:301 et seq.; the Louisiana
whistleblower statute, La. Rev. Stat. § 23:967; and Title VII, 42 U.S.C. § 2000e et seq.,1
when Acme discriminated against her based on her gender; Aulds created a hostile
working environment by sexually harassing her; and Acme retaliated against her for
having complained about sexual harassment and illegal financial practices by terminating
her contract as a Sales Commission Representative. She also claims that Acme breached
the contract. Barrera alleges that defendants, Quad B Transportation, LLC and its
principal, David Breaux (collectively “Quad B”), discriminated against her based on her
gender and retaliated against her for whistleblowing activity, in violation of La. Rev. Stat.
§ 23:301 et seq., La. Rev. Stat. § 23:967 and Title VII. In addition, plaintiff asserts claims
1

Although Barrera’s original state court petition did not mention Title VII specifically, she
alleged that defendants’ actions violated concurrent federal law. Defendants removed the action to
this court based on federal question jurisdiction. Record Doc. No. 1.

of defamation and intentional infliction of emotional distress against all defendants under
Louisiana state law. First Supplemental and Amending Petition for Damages and
Complaint, Record Doc. No. 73.
This matter was referred to a United States Magistrate Judge for all proceedings
and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all
parties. Record Doc. No. 54.
The Quad B defendants filed a motion for summary judgment on all of plaintiff’s
claims against them, supported by excerpts from plaintiff’s deposition transcripts,
affidavits of nonparty witnesses and a documentary exhibit. Record Doc. No. 123. The
Acme defendants filed a motion for summary judgment on all of plaintiff’s claims against
them, supported by the declaration under penalty of perjury of Acme’s Chief Financial
Officer, Kimberly Foster; excerpts from plaintiff’s deposition transcripts; and
documentary exhibits. Record Doc. No. 125.
Because plaintiff is now proceeding pro se,2 the court ordered her to respond in
writing with supporting evidence after each motion was filed. Each court order stated that
Barrera’s “response should include sworn affidavits or other evidentiary materials that set

2

Barrera was represented by an attorney throughout most of these proceedings. Her attorney
was permitted to withdraw on January 29, 2016. Record Doc. Nos. 116, 117, 119. She subsequently
advised the court that she had retained a new lawyer to represent her, Record Doc. No. 120, but no
lawyer ever enrolled on her behalf.
2

forth specific facts demonstrating that there is a genuine issue of material fact for trial in
this case. Failure to follow the requirements of this order may result in entry of final
judgment in favor of defendants without a further hearing.” Record Doc. Nos. 124, 126.
Plaintiff timely opposed the summary judgment motions, Record Doc. Nos. 127, 128, but
did not submit any sworn evidence in support of her opposition memoranda. Instead, she
submitted a flash drive containing an audio recording of a telephone conversation.
Record Doc. No. 128.
Having considered the complaint, as amended; the record; the arguments of the
parties and the applicable law, IT IS ORDERED that defendants’ motions for summary
judgment are GRANTED for the following reasons.
ANALYSIS
A.

Standards of Review

“A party may move for summary judgment, identifying each claim or defense–or
the part of each claim or defense–on which summary judgment is sought. 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). Rule 56, as revised effective December 1, 2010, establishes new procedures for
supporting factual positions:

3

(1) A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A
party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials,
but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Fed. R. Civ. P. 56(c).
Thus, the moving party bears the initial burden of identifying those materials in the
record that it believes demonstrate the absence of a genuinely disputed material fact, but
it is not required to negate elements of the nonmoving party’s case. Capitol Indem. Corp.
v. United States, 452 F.3d 428, 430 (5th Cir. 2006) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “[A] party who does not have the trial burden of production may
rely on a showing that a party who does have the trial burden cannot produce admissible
evidence to carry its burden as to [a particular material] fact.” Advisory Committee
Notes, at 261.
4

A fact is “material” if its resolution in favor of one party might affect the outcome
of the action under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
No genuine dispute of material fact exists if a rational trier of fact could not find for the
nonmoving party based on the evidence presented. Nat’l Ass’n of Gov’t Employees v.
City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).
To withstand a properly supported motion, the nonmoving party who bears the
burden of proof at trial must cite to particular evidence in the record to support the
essential elements of its claim. Id. (citing Celotex, 477 U.S. at 321-23); accord U.S. ex
rel. Patton v. Shaw Servs., L.L.C., 418 F. App’x 366, 371 (5th Cir. 2011). “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case renders
all other facts immaterial.” Celotex, 477 U.S. at 323; accord U.S. ex rel. Patton, 418 F.
App’x at 371.
“Factual controversies are construed in the light most favorable to the nonmovant,
but only if both parties have introduced evidence showing that an actual controversy
exists.” Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998); accord Murray
v. Earle, 405 F.3d 278, 284 (5th Cir. 2005). “We do not, however, in the absence of any
proof, assume that the nonmoving party could or would prove the necessary facts.”
Badon v. R J R Nabisco Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quotation omitted)
(emphasis in original). “Conclusory allegations unsupported by specific facts . . . will not
5

prevent the award of summary judgment; ‘the plaintiff [can]not rest on his allegations .
. . to get to a jury without any “significant probative evidence tending to support the
complaint.”’” Nat’l Ass’n of Gov’t Employees, 40 F.3d at 713 (quoting Anderson, 477
U.S. at 249).
“Moreover, the nonmoving party’s burden is not affected by the type of case;
summary judgment is appropriate in any case where critical evidence is so weak or
tenuous on an essential fact that it could not support a judgment in favor of the
nonmovant.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotation
omitted) (emphasis in original); accord Duron v. Albertson’s LLC, 560 F.3d 288, 291 (5th
Cir. 2009).
B.

The Undisputed Material Facts

The statements of uncontested material facts submitted by Quad B, Record Doc.
No. 123-2, and Acme, Record Doc. No. 125-5, are supported by competent summary
judgment evidence. Barrera has not provided any competent summary judgment evidence
to demonstrate that material facts are in dispute, and I find none in the record as a whole.
In one of her opposition memoranda, plaintiff alleges that Breaux made certain
statements during “the deposition.” Record Doc. No. 127. However, there is no sworn
deposition of Breaux in the record. The flash drive that Barrera submitted contains an

6

audio recording of a telephone conference between herself, her attorney, Breaux and
Breaux’s attorney on December 15, 2015. Record Doc. No. 128-1.
Although the audio recording is not verified, I have reviewed it. The accounts by
Breaux and his attorney during that telephone conversation of the contents of oral and/or
written statements made by other persons are inadmissible hearsay. “‘Hearsay’ means a
statement that: (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801. Hearsay is not admissible unless it falls within an
exception established by a federal statute or rule. Fed. R. Evid. 802. Inadmissible
hearsay fails to create a genuine issue of material fact. Yancy v. U.S. Airways, Inc., 469
F. App’x 339, 342 n.1 (5th Cir. 2012).
In her opposition memoranda, Barrera cites admissions that Breaux allegedly made
to her during that recorded conversation and at other times. Even if Breaux’s statements
on the audio recording about his own knowledge or conduct, or his attorney’s statements
about what Breaux told the attorney about Breaux’s knowledge or conduct, are admissible
as non-hearsay statements of an opposing party under Fed. R. Evid. 801(d)(2)(A) or (C),
those statements do not support plaintiff’s contention that Breaux “admits to Slandering
and defaming [her] name over the years.” Record Doc. No. 127. On the contrary, Breaux
denied more than once during the telephone conference that he ever said anything
7

negative about Barrera. His attorney stated during the conference that Breaux had told
him the same thing. Plaintiff’s own statements during that conversation and her
deposition testimony confirm that she never heard Breaux make any derogatory
statements about her. Record Doc. No. 128-1, audio recording; Record Doc. No. 123-4,
first deposition of Yesenia Barrera, Quad B defendants’ Exh. A, at pp. 166, 169, 176;
Record Doc. No. 123-9, second deposition of Yesenia Barrera, Quad B defendants’
Exh. F, at pp. 222-28.
Accordingly, solely for purposes of the pending motion for summary judgment, the
facts in defendants’ statements of uncontested material facts are accepted as undisputed.
Acme and Quad B are in the trucking business. A significant portion of Acme’s
operations is handled through a system of independent contractors called “sales
commission representatives,” who operate out of regional terminals.

The sales

commission representatives contract with Acme to use their best efforts in soliciting
customers and vehicular equipment in the transportation and hauling of commodities, and
are paid entirely on a commission basis. Quad B owned and operated Acme Terminal 59
in New Iberia, Louisiana. Barrera worked for Quad B from January 2008 to August 2008,
when she quit voluntarily.

8

Barrera contracted with Acme in December 2008 to be a Sales Commission
Representative. She was the owner and manager of the Coteau terminal located in
Lafayette, Louisiana. She operated the terminal under the name Midnight Trucking.
On April 30, 2013, Acme informed Barrera, doing business as Midnight Trucking,
in writing of defendant’s intent to terminate the relationship between the parties effective
immediately. Plaintiff received written notice of the termination. She filed the instant
lawsuit on April 22, 2014.
Additional undisputed material facts relevant to each claim are discussed in
connection with defendants’ summary judgment motions as to each claim below.
C.

Acme’s Motion for Summary Judgment

Plaintiff claims that Acme violated Title VII, the Louisiana Employment
Discrimination Law and the Louisiana whistleblower statute.3 She alleges that Aulds
sexually harassed her, Acme discriminated against her based on her sex, and Acme
retaliated against her by terminating her contract because she complained to Acme about
Aulds’s sexual harassment and about illegal activities that she saw when she previously
worked at Quad B. Barrera also claims that the termination breached her Sales
Commission Representative contract with Acme. Finally, she alleges that Aulds and/or

3

Plaintiff’s claims against Aulds, Coatney and Breaux individually under these three statutes
were previously dismissed. Record Doc. Nos. 60, 65.
9

Coatney defamed her and intentionally inflicted emotional distress on her in violation of
Louisiana state law.
1.

Plaintiff’s Title VII claims against Acme

To the extent that Barrera might have been Acme’s employee (which she was not,
as discussed below), Acme argues that her Title VII claims must be dismissed for failure
to exhaust administrative remedies. It is undisputed that plaintiff never filed a charge of
discrimination or retaliation with the Equal Employment Opportunity Commission.
“Title VII requires employees to exhaust their administrative remedies before
seeking judicial relief.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir.
2008). The filing of a charge with the EEOC within 300 days of the last discriminatory
or retaliatory act and receipt of a notice of right to sue are prerequisites to filing a Title
VII suit in Louisiana. Janmeja v. Bd. of Supervisors, 96 F. App’x 212, 214 (5th Cir.
2004). Any claims based on alleged discriminatory or retaliatory events that occurred
more than 300 days before the charge was filed are time-barred. Id. Failure to file a
charge with the EEOC and exhaust administrative remedies before filing suit will result
in dismissal of the lawsuit. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109
(2002); Hague v. Univ. of Tex. Health Sci. Ctr., 560 F. App’x 328, 331 (5th Cir. 2014);
Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 598 (5th Cir. 2006).

10

The limitations period in the instant case expired at the latest on February 24, 2014,
which was 300 days after Barrera’s contract was terminated effective April 30, 2013.
Termination letter, deposition exhibit 3 to Defendants’ Exh. B,4 plaintiff’s first deposition.
She filed suit on April 22, 2014, about two months after the limitations period expired.
Accordingly, plaintiff’s Title VII claims against Acme are time-barred and Acme’s
motion is granted as to those claims.
2.

Plaintiff’s state law sexual harassment claims against Acme

To the extent that Barrera might have been Acme’s employee (which she was not,
as discussed below), her sexual harassment claims against Acme under the Louisiana
Employment Discrimination Law are subject to a prescriptive period of one year. La.
Rev. Stat. § 23:303(D). Plaintiff testified that the last incident of alleged sexual
harassment by Aulds occurred in January 2013. Defendants’ Exh. B, plaintiff’s first
deposition at pp. 137-38; Defendants’ Exh. C, plaintiff’s second deposition at p. 152. She
filed suit on April 22, 2014, more than one year after the last alleged incident.
Plaintiff’s sexual harassment claims against Acme under Louisiana law prescribed
before she filed suit. Therefore, Acme is entitled to summary judgment in its favor on
plaintiff’s sexual harassment claims as a matter of law.

4

All citations to defendants’ exhibits in this section of this decision are to the Acme
defendants’ exhibits attached to their motion for summary judgment. Record Doc. No. 125.
11

3.

Plaintiff’s employment status with Acme

The undisputed, competent summary judgment evidence establishes that Acme was
never plaintiff’s employer. Even if her sexual harassment claims had not prescribed, she
cannot bring any claims of discrimination or retaliation against Acme under the Louisiana
Employment Discrimination Law or whistleblower statute because those statutes apply
only to employers. La. Rev. Stat. §§ 23:302(2), 23:332, 23:967.
“Although the whistleblower statute itself does not define employer, district courts
within the Fifth Circuit have applied the definition of ‘employer’ provided under
Louisiana’s Employment Discrimination Law, La. Rev. Stat. § 23:302(2), to claims
brought under the whistleblower statute, La. Rev. Stat. § 23:967.” Johnson v. Hosp.
Corp., 767 F. Supp. 2d 678, 691 n.2 (W.D. La. 2011) (citing Jones v. JCC Holding Co.,
No. 01-0573, 2001 WL 537001, at *3 (E.D. La. May 21, 2001); Langley v. Pinkerton’s
Inc., 220 F. Supp. 2d 575, 580 (M.D. La. 2002); Jackson v. Xavier Univ., No. 01-1659,
2002 WL 1482756, at *6 (E.D. La. July 8, 2002)); accord English v. Wood Grp. PSN,
Inc., No. 15-568, 2015 WL 5061164, at *10-11 & n.8 (E.D. La. Aug. 25, 2015) (citing
Myers v. BP Am., Inc., No. 6:08-0168, 2010 WL 3878920, at *3 (W.D. La. Sept. 28,
2010); Wilson-Robinson v. Our Lady of the Lake Reg’l Med. Ctr., Inc., No. 10-584, 2011
WL 6046984, at *2 (M.D. La. Dec. 6, 2011); Ray v. Bossier City, 859 So. 2d 264, 272
(La. App. 2d Cir. 2003)) (additional citations omitted).
12

Barrera was not Acme’s employee. She was an independent contractor operating
a regional trucking terminal under a Sales Commission Representative Agreement.
Deposition exhibit 2 to Defendant’s Exh. B, plaintiff’s first deposition. Plaintiff has
submitted a flash drive containing an audio recording that she argues proves that Acme
“interfere[d] with the commission terminals’ decisions by who was hired or let go, [etc].
The commission terminals were not allowed to run their terminals the way they wanted.”
Record Doc. No. 128.
Even if these allegations are true and Acme exercised some degree of control over
Barrera’s terminal operations, that does not establish that Acme was her employer for
purposes of the relevant Louisiana statutes. The Louisiana Employment Discrimination
Law defines an “employer” as “a person, association, legal or commercial entity, . . .
receiving services from an employee and, in return, giving compensation of any kind to
an employee.” La. Rev. Stat. Ann. 23:302(2). This definition, which also applies to the
whistleblower act, “requires [that] an employer be one who compensates the employee
rather than one who has the right to control the employee.” English, 2015 WL 5061164,
at *10 (citing La. Rev. Stat. Ann. 23:302(2); Seal v. Gateway Cos., No. 01-1322, 2002
WL 10456, at *5 (E.D. La. Jan. 3, 2002)).
Factors to consider in determining whether a company is plaintiff’s “payroll
employer,” id., who “compensates the employee” include whether the company paid her
13

wages and/or benefits; withheld federal, state, unemployment or social security taxes for
her; and carried her name on the company’s payroll. Johnson, 767 F. Supp. 2d 698-99;
Langley v. Pinkerton’s Inc., 220 F. Supp. 2d 575, 580 (M.D. La. 2002); Seal, 2002 WL
10456, at *5; Dejoie v. Medley, 9 So. 3d 826, 830 (La. 2009); Onyeanusi v. TimesPicayune Publishing Corp., 485 So. 2d 622, 623 (La. App. 4th Cir. 1986).
Defendant’s unrebutted, competent evidence establishes that Acme did none of
these things in relation to Barrera. Acme’s Statement of Uncontested Material Facts,
Record Doc. No. 125-25 at ¶¶ 7-18, 21-31. Therefore, she was not Acme’s employee for
purposes of the Louisiana Employment Discrimination Law and whistleblower statute.
Acme is entitled to summary judgment in its favor as a matter of law on Barrera’s claims
under both statutes.
4.

Plaintiff’s breach of contract claim against Acme

Barrera alleges that Acme breached the Sales Commission Agreement by
terminating the contract and because Aulds sexually harassed her. As to termination, the
Agreement states in pertinent part:
This Agreement is for a term of one (1) year and shall be automatically
renewed for successive one (1) year terms, unless sooner terminated by
either party. Either party hereto may immediately terminate this Agreement
upon written notice to the other.

14

Sales Commission Agreement at ¶ 6, Exhibit 2 to Defendant’s Exh. B (emphasis added).
Barrera received Acme’s written notice of the termination of her Sales Commission
Representative Agreement effective April 30, 2013. Defendant’s Exh. B, plaintiff’s first
deposition, at pp. 101-02.
Under Louisiana law, a breach of contract results from nonperformance, defective
performance or delay in performance. A contracting party is liable for the damages
caused by his failure to perform. La. Civ. Code art. 1994. To establish a breach of
contract, Barrera must show, among other things, that Acme failed to perform an
obligation under the contract. Id.
A party does not breach a contract by invoking a right, including a right to
terminate the agreement, that the contract expressly gives to the party. Schaumburg v.
State Farm Mut. Auto. Ins. Co., 421 F. App’x 434, 438-39 (5th Cir. 2011); Mobile-One
Auto Sound, Inc. v. Whitney Nat. Bank, 78 So. 3d 807, 815 (La. App. 4th Cir. 2011);
Jebaco, Inc. v. Harrah’s Operating Co., No. 2010-0872, 2011 WL 9159632, at *4 (La.
App. 4th Cir. Jan. 12, 2011). Acme did not breach the Sales Commission Representative
Agreement with plaintiff because either party had an express right to terminate at any time
with written notice.
Barrera testified that her breach of contract claim is based on Aulds’s alleged
sexual harassment and that this harassment is the only basis for her breach of contract
15

claim. Defendant’s Exh. C, plaintiff’s second deposition at p. 138. Plaintiff has not
identified any obligation of the Sales Commission Representative Agreement that Acme
breached because Aulds sexually harassed her. Accordingly, Acme is entitled to
summary judgment in its favor as a matter of law on plaintiff’s breach of contract claim.
5.

Plaintiff’s defamation claims against Acme, Aulds and Coatney

Barrera testified that she had no knowledge that Coatney ever said anything
negative, derogatory or defamatory about her. Defendant’s Exh. C, plaintiff’s second
deposition at p. 198. In the absence of evidence that Coatney made any such statements,
he is entitled to summary judgment in his favor on plaintiff’s defamation claim.
Barrera testified that, in January 2012, Aulds told people who worked at other
Acme terminals that she was on drugs and she slept around. She testified that she heard
about these statements before February 16, 2012, from the people who heard Aulds make
the comments. Plaintiff testified that Aulds did not make any similar statements about her
between February 16, 2012, and the end of April 2013, when Acme shut down her
terminal. Id. at pp. 169, 171, 178.
Defamation is subject to a one-year prescriptive period pursuant to Louisiana Civil
Code article 3492, which “begin[s] to run once the plaintiff becomes aware of the
damage-causing publication.” Atkins v. Se. Cmty. Health Sys., No. 11-00047-BAJ-RLB,
2015 WL 9307269, at *6 (M.D. La. Dec. 21, 2015) (citing Clark v. Wilcox, 928 So. 2d
16

104, 112 (La. App. 1st Cir. 2005)). Barrera knew about Aulds’s allegedly derogatory
statements about her before February 16, 2012. However, she did not file suit for
defamation until April 22, 2014, more than two years later. Her defamation claim is timebarred to the extent it is based on statements of which she was aware before February 16,
2012.
Plaintiff testified that, after April 2013, Aulds told other terminal managers that he
had shut down her terminal because she was on drugs and sleeping around. She testified
that she heard these reports “second hand” from other managers after her contract was
terminated. Id. at pp. 171, 178-79. Barrera’s defamation claim based on these alleged
statements was filed within the one-year prescriptive period, but she fails to present any
evidence to create a material fact issue for a viable defamation claim.
Defamation is a tort which involves the invasion of a person’s
interest in his or her reputation and good name. Four elements are
necessary to establish a defamation cause of action: (1) a false and
defamatory statement concerning another; (2) an unprivileged publication
to a third party; (3) fault (negligence or greater) on the part of the publisher;
and (4) resulting injury. . . . If even one of the required elements of the tort
is lacking, the cause of action fails.
Costello v. Hardy, 864 So. 2d 129, 139-40 (La. 2004) (citing Cangelosi v. Schwegmann
Bros. Giant Super Mkts., 390 So. 2d 196, 198 (La. 1980)) (quotations and additional
citations omitted); accord Kennedy v. Sheriff, 935 So. 2d 669, 674-75 (La. 2006).

17

Acme argues that Barrera has no admissible evidence to support the publication
prong of her defamation claim. “Publication refers to any nonprivileged communication
of defamatory words, written or oral, and it renders a defendant liable for all republication
that is the natural and probable consequence of the author’s act.” Atwood v. Grand
Casinos of La., Inc., 887 So. 2d 634, 638 (La. App. 3d Cir. 2004) (quotation and citation
omitted).
Plaintiff has proffered only inadmissible hearsay as evidence of Aulds’s alleged
comments, i.e., her own testimony that other terminal managers told her what Aulds had
said about her. She admittedly never heard the alleged defamatory statements firsthand.
Her testimony about what other persons told her “is textbook hearsay” because she is
trying to use her own “recollection of what someone else[, not the defendant,] said” to
prove that Aulds published the allegedly defamatory statements. Bellard v. Gautreaux,
675 F.3d 454, 461 (5th Cir. 2012). This proffered evidence of publication “is hearsay and
does not fit any hearsay exception.” Id.; accord Jehling v. A.H. Belo Corp., No.
3:11-CV-1258-B, 2013 WL 5803813, at *21 (N.D. Tex. Oct. 28, 2013); Simas v. Merrill
Corp., No. 02 CIV.4400 RCC, 2004 WL 213013, at *8 (S.D.N.Y. Feb. 4, 2004) (citing
Albert v. Loksen, 239 F.3d 256, 266 (2d Cir. 2001)).
Because Barrera has presented no admissible evidence to establish that Aulds
published the alleged statements about her, no material fact issue is in dispute that she
18

cannot establish the second prong of the defamation standard. Accordingly, the Acme
defendants are entitled to summary judgment in their favor on plaintiff’s defamation
claims against them.
6.

Intentional infliction of emotional distress

Like her other tort claims, plaintiff’s intentional infliction of emotional distress
claim against the Acme defendants is subject to the one-year prescriptive period of
Louisiana Civil Code article 3492. Hoover v. SOS Staffing Servs., Inc., 584 F. App’x
190, 191 (5th Cir. 2014) (citing Rivers v. Zwolle, No. 10-0578, 2011 WL 1103792, at *2
(W.D. La. Mar. 22, 2011)); Pilie v. Shaw Envtl. & Infrastructure, Inc., No. 2013 CA
1105, 2014 WL 3555966, at *4 (La. App. 1st Cir. June 5, 2014) (citing King v. Phelps
Dunbar, L.L.P.,, 743 So. 2d 181, 197 (La. 1999)). Based on Barrera’s testimony that the
last act of alleged sexual harassment occurred during January 2013, Acme argues that her
claim has prescribed. Alternatively, Acme argues that plaintiff has no evidence that the
alleged conduct was extreme enough to establish intentional infliction of emotional
distress.
To the extent that Barrera relies on allegedly sexually harassing conduct that
occurred on or before January 31, 2013, her claim has prescribed. To the extent that she
alleges that the conduct of Acme, Coatney or Aulds after that date, including the
termination of her contract, amounts to intentional infliction of emotional distress,
19

plaintiff must establish that: (1) the conduct of the defendant was extreme
and outrageous, (2) the emotional distress suffered by the plaintiff was
severe, and (3) the defendant desired or knew that severe emotional distress
would be certain or substantially certain to result from his conduct.
“Extreme and outrageous conduct” is defined as conduct . . . so outrageous
in character, and so 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. The conduct must be intended or calculated to cause
severe emotional distress and not just some lesser degree of fright,
humiliation, embarrassment, worry, or the like.
[Intentional infliction of emotional distress] claims will not lie for
mere employment disputes since an employer must be free to demote,
transfer, discipline, and terminate employees even though such actions will
undoubtably be unpleasant and cause emotional distress. Conduct in the
workplace, even if calculated to cause some degree of mental anguish, will
rarely be so severe that it will rise to the level of “outrageous conduct.”
[O]rdinary employment disputes, even those involving discrimination and
sexual harassment, will rise to the level of [intentional infliction of
emotional distress] only in the most unusual of cases. Such situations are
limited to those where the distress is more than a reasonable person could
be expected to endure.
Clayton v. John H. Stone Oil Distrib., LLC, No. 2:11-cv-2276, 2012 WL 4359293, at *10
(E.D. La. Sept. 21, 2012) (quotations omitted) (citing Dean v. Ford Motor Credit Co., 885
F.2d 300, 306 (5th Cir. 1989); Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1027 (La.
2000); White v. Monsanto Co., 585 So. 2d 1205, 1209-10 (La. 1991); Johnson v. Merrell
Dow Pharm., Inc., 965 F.2d 31, 33-34 (5th Cir. 1992); Barber v. Marine Drilling Mgt.,
Inc., No. 01-1986, 2002 WL 237848, at *8 (E.D. La. Feb. 15, 2002)). A plaintiff’s failure
to present evidence to establish any one of the three elements is fatal to her claim.

20

“Conduct which is merely [tortious] or illegal does not rise to the level of being
extreme and outrageous.” Nicholas, 765 So. 2d at 1025. Louisiana Civil Code article
2315, from which the cause of action for intentional infliction of emotional distress
derives, “does not create liability for employment discrimination.” Iturralde v. Shaw
Group, Inc., 512 F. App’x 430, 435 (5th Cir. 2013) (citing Hornsby v. Enter. Transp. Co.,
987 F. Supp. 512, 515 (M.D. La. 1997)) (emphasis added). “Employment disputes must
have some quality that places them beyond the ordinary in order to qualify for intentional
infliction of emotional distress.” Charles v. JetBlue Airways Corp., No. 08-40, 2009 WL
273206, at *12 (E.D. La. Jan. 26, 2009) (citing Dean v. Ford Motor Credit Co., 885 F.2d
300 (5th Cir. 1989)). “Courts ‘have consistently limited causes of action for [intentional
infliction of emotional distress] in the workplace to cases which involve a pattern of
deliberate, repeated harassment over a period of time.’” Iturralde, 512 F. App’x at 435
(quoting Nicholas, 765 So. 2d at 1026) (internal quotation omitted)). “Mere violation of
laws regulating conduct in the workplace is not enough to establish intentional infliction.”
Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d 606, 613 (5th Cir. 1999) (under
Texas law, which is identical to Louisiana law).
Barrera has presented no competent summary judgment evidence to create a
disputed fact issue that the conduct of which she complains went beyond all possible
bounds of decency and was atrocious and utterly intolerable. The few, widely spaced
21

incidents of alleged sexual harassment about which she testified (which occurred before
February 2013), even if they could be combined with the termination of her contract in
April 2013 for purposes of her intentional infliction of emotional distress claim, do not
rise to the level of extreme and outrageous conduct. Plaintiff’s evidence of sexual
harassment includes her testimony that:
•

On several occasions between 2009 and 2013, Aulds asked Barrera to meet
him at his hotel room. Defendants’ Exh. B, plaintiff’s first deposition at p.
137. On a few occasions between 2009 and 2011, Aulds asked her to meet
him at his hotel to “lay down with him.” Id. at p. 161. On one of those
occasions in January 2013, plaintiff and Aulds were staying in the same
hotel for a conference, and Aulds asked her to come check on him because
he was ill. Id. at p. 138; Defendants’ Exh. C, plaintiff’s second deposition
at p. 152.

•

Twice between 2009 and 2013, Aulds appeared at the same bar or restaurant
as Barrera. Defendants’ Exh. B, at pp. 149-150, 157.

•

Plaintiff believed that Aulds wanted to have a relationship with her. Id. at
p. 152.

These events simply do not raise a material fact issue of extreme and outrageous
conduct. See Lambert v. Ware, No. 12-2058, 2013 WL 139882, at *2-3 (E.D. La. Jan. 10,
2013) (citing Deus v. Allstate Ins. Co., 15 F.3d 506, 514-15 (5th Cir. 1994); Griffith v.
Louisiana, 808 F. Supp. 2d 926, 935 (E.D. La. 2011); Guichard v. Louisiana, No. 11-535,
2011 WL 3900051, at *5-6 (E.D. La. Sept. 6, 2011); Washington v. Davis, No. 01-1863,
2001 WL 1287125, at *8 (E.D. La. Oct. 23, 2001); White, 585 So. 2d at 1209) (no

22

outrageous conduct when plaintiff’s supervisor consistently harassed her about her weight
and made derogatory comments, threatened weekly to terminate her if she did not do
certain tasks or work on her off days, harassed her outside of the office by texting and
calling her, misled plaintiff into calling in prescriptions for patients who were supervisor’s
friends and relatives, lashed out at her when she brought up discrepancies in her
paycheck, and dropped off her personnel file at her home after her termination); Guichard,
2011 WL 3900051, at *6 (citing Smith v. Amedisys Inc., 298 F.3d 434, 437-48 (5th Cir.
2002); Charles v. JetBlue Airline Corp., No. 08-40, 2009 WL 273206, at *4, 12 (E.D. La.
Jan. 26, 2009); Washington v. Mother Works, Inc., 197 F. Supp. 2d 569, 572-73 (E.D. La.
2002)) (“Intentional firing after making a complaint for sexual harassment is not
actionable under [intentional infliction of emotional distress.]”); cf. Skidmore, 188 F.3d
at 613 (Plaintiff survived summary judgment on intentional infliction of emotional
distress claim with evidence that male co-worker’s “improper conduct was persistent and
long-standing,” including subjecting her to sexually suggestive touching, constantly
making sexual remarks, laughing at her reactions to his uninvited harassment, asking her
to leave her husband for him and, knowing that false rumors of a sexual relationship
between co-worker and plaintiff had reached her husband and threatened her marriage,
did not deny the relationship.); Clayton, 2012 WL 4359293, at *10 (Plaintiff stated a
claim for intentional infliction of emotional distress when he alleged that his employer
23

had ignored his prior complaints and his co-workers’ alleged remarks and actions against
him, including a fight and beating, caused him to jump off the vessel and swim in the
Mississippi River out of fear for his safety.).
In addition, Barrera has failed to proffer any evidence that she suffered severe
emotional distress to satisfy the second prong of the standard, which “requires that ‘[t]he
distress suffered must be such that no reasonable person could be expected to endure it.
Liability arises only where the mental anguish or suffering is extreme.’” Smith, 298 F.3d
at 449 (quoting White, 585 So. 2d at 1209).
Plaintiff never complained about sexual harassment to anyone at Acme’s corporate
headquarters. Defendants’ Exh. B, plaintiff’s first deposition at p. 191. Her terminal
operation was successful during the entire time she managed it under her contract with
Acme. Id. at p. 196. She started working immediately for another trucking company after
Acme terminated her contract. Id. at p. 95. These facts are inconsistent with severe
emotional distress. See Smith, 298 F.3d at 450 (Although plaintiff “experienced
emotional distress as a result of this [sexual] harassment and losing her job at Amedisys,
the evidence does not show that the distress was ‘unendurable.’”).
Accordingly, the Acme defendants are entitled to summary judgment as a matter
of law on plaintiff’s intentional infliction of emotional distress claim.
C.

Quad B’s Motion for Summary Judgment
24

Breaux and Quad B owned and operated Acme Terminal 59 in New Iberia,
Louisiana. Barrera worked for these defendants at Terminal 59 from January 2008 to
August 2008, when she quit that job and later opened her own terminal with Acme.
Record Doc. No. 123-4, Defendants’ Exh. A, plaintiff’s first deposition, at pp. 55, 178,
183-84, 187.5
1.

Plaintiff’s defamation claim against Breaux and Quad B

Plaintiff’s defamation claim against Breaux and Quad B stems from alleged
statements by Breaux in the spring of 2012. Barrera sent an email to Aulds on
February 16, 2012, complaining of defamatory statements that Breaux had allegedly made
to one of her drivers, who relayed the statements to plaintiff. Defendants’ Exh. C,
exhibit 6 to plaintiff’s deposition. Barrera testified that the last allegedly defamatory
statement by Breaux was made in the spring of 2012, specifically, on or about April 30,
2012. Record Doc. No. 123-4, Defendants’ Exh. A, plaintiff’s first deposition at pp. 16566; Record Doc. No. 123-9, Defendants’ Exh. F, plaintiff’s second deposition at p. 223.
Construing these facts in the light most favorable to Barrera, it is undisputed that any
defamatory statements by Breaux occurred no later than April 30, 2012.

5

All citations to defendants’ exhibits in this section of this decision are to the Quad B
defendants’ exhibits attached to their motion for summary judgment. Record Doc. No. 123.
25

As previously discussed, defamation claims are subject to a one-year prescription
that begins to run once plaintiff becomes aware of the defamatory publication. La. Civ.
Code art. 3492; Atkins, 2015 WL 9307269, at *6. Barrera did not file the instant lawsuit
until April 30, 2014, two years after Breaux’s last allegedly defamatory statement. Her
defamation claim had already prescribed when she filed suit.
Alternatively, Quad B contends that plaintiff has proffered only inadmissible
hearsay as evidence of publication of Breaux’s alleged comments, i.e., her own testimony
that she heard from third parties what Breaux had said about her. Barrera admittedly
never heard Breaux make any defamatory statements. During the recorded telephone
conversation that she submitted as evidence, Breaux denied that he ever made any
negative comments about her. Quad B has submitted affidavits from three persons who
are listed as witnesses on plaintiff’s witness list, Record Doc. No. 97. All three deny that
they ever heard any disparaging statements about Barrera made by Breaux or anyone else
acting for Quad B. Record Doc. No. 123-7, Defendants’ Exh. D, affidavit of Mary
Abney; Record Doc. No. 123-8, Defendants’ Exh. E, affidavit of Anthony Delahoussaye;
Record Doc. No. 123-10, Defendants’ Exh. G, affidavit of Donald Wilson.
Plaintiff’s own testimony about what other people told her “is textbook hearsay”
because she is trying to use her own “recollection of what someone else[, not the
defendant,] said” to prove that Breaux published the allegedly defamatory statements.
26

Bellard, 675 F.3d at 461. This proffered evidence of publication “is hearsay and does not
fit any hearsay exception.” Id.; accord Jehling, 2013 WL 5803813, at *21; Simas, 2004
WL 213013, at *8.
Because Barrera has proffered no admissible evidence to establish that Breaux
and/or Quad B published the alleged statements about her, she cannot establish the second
prong of the defamation test. Accordingly, these defendants are entitled to summary
judgment in their favor as a matter of law on plaintiff’s defamation claim.
2.

Plaintiff’s intentional infliction of emotional distress claim against
Breaux and Quad B

Barrera’s claim for intentional infliction of emotional distress against Breaux and
Quad B stems from the same allegedly defamatory statements made by Breaux no later
than April 30, 2012, discussed in the preceding section of this decision. Because
plaintiff’s intentional infliction of emotional distress claim is subject to the same one-year
prescriptive period as her defamation claim, it had already prescribed when she filed the
instant lawsuit.
To the extent that Barrera asserts a claim for intentional infliction of emotional
distress against Breaux and Quad B based on events that occurred within one year before
she filed the instant lawsuit, her only allegations that might constitute intentional infliction
of emotional distress are that Breaux made false and defamatory statements about her.

27

Because plaintiff has no admissible evidence that Breaux ever made any derogatory
statements, she cannot establish that defendants’ conduct was so extreme and outrageous
as to constitute intentional infliction of emotional distress. Accordingly, Quad B and
Breaux are entitled to summary judgment in their favor as a matter of law on this claim.
3.

Plaintiff’s Title VII claims against Quad B

Barrera was an employee of Quad B from January to August 2008. She never filed
a charge of discrimination against Quad B with the EEOC. As previously discussed, the
filing of such a charge within 300 days of the last allegedly discriminatory act is a
prerequisite to filing a Title VII suit in Louisiana. Janmeja, 96 F. App’x at 214. Failure
to file a charge and exhaust administrative remedies before filing suit will result in
dismissal of the lawsuit. Nat’l R.R. Passenger Corp., 536 U.S. at 109; Hague, 560 F.
App’x at 331; Price, 459 F.3d at 598. Accordingly, Quad B is entitled to summary
judgment as a matter of law on plaintiff’s Title VII claims.
4.

Plaintiff’s claims against Quad B under the Louisiana Employment
Discrimination Law and Louisiana whistleblower statute

As Barrera’s employer in 2008, Quad B is subject to the Louisiana Employment
Discrimination Law, La. Rev. Stat. § 23:301 et seq., and whistleblower statute, La. Rev.
Stat. § 23:967. The Louisiana Employment Discrimination Law contains a one-year
prescriptive period. La. Rev. Stat. § 23:303(D). Prescription begins to run on the date

28

the last allegedly discriminatory action occurred. Williams v. Cardinal Health 200, LLC,
948 F. Supp. 2d 652, 660 (E.D. La. 2013); Bellow v. Bd. of Supervisors, 913 F. Supp. 2d
279, 289 (E.D. La. 2012), aff’d, 550 F. App’x 181 (5th Cir. 2013); Eastin v. Entergy
Corp., 865 So. 2d 49, 53-54 (La. 2004).
The whistleblower statute contains no specific prescriptive period. Because
whistleblower claims are delictual in nature, they are subject to the general one-year
prescriptive period of Louisiana Civil Code article 3492. Pilie, 2014 WL 3555966, at *4
(citing Nolan v. Jefferson Parish Hosp., 790 So. 2d 725, 733 (La. App. 5th Cir. 2001));
Murray v. Louisiana, No. 08-254-RET-SCR, 2011 WL 703653, at *7 (M.D. La. Feb. 2,
2011), report & recommendation adopted, 2011 WL 706495 (M.D. La. Feb. 18, 2011),
aff’d, 439 F. App’x 349 (5th Cir. 2011).
Barrera quit her job at Quad B in August 2008. Any discrimination or retaliation
for whistleblowing activity by Quad B necessarily occurred before August 31, 2008, at
the latest. Both of plaintiff’s claims prescribed no later than August 31, 2009, long before
she filed the instant lawsuit. Quad B is entitled to summary judgment in its favor as a
matter of law on plaintiff’s claims under these two statutes.

29

CONCLUSION
For all of the foregoing reasons, IT IS ORDERED that defendants’ motions for
summary judgment are GRANTED and that all of plaintiff’s claims are DISMISSED
WITH PREJUDICE. Judgment will be separately entered.

25th
New Orleans, Louisiana, this _________ day of May, 2016.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

30