Olmeda v. Cameron International Corporation et al

Filing 84

ORDER & REASONS: ORDERED that Cameron's 63 Motion to Strike is GRANTED in part and DENIED in part and 53 Motion for Summary Judgment is GRANTED. FURTHER ORDERED that PMG's 71 Motion to Strike is GRANTED in part and DENIED in part and 51 Motion for Summary Judgment is GRANTED. The plaintiff's claims against Cameron and PMG are dismissed. Finally, IT IS ORDERED: that the Court declines to exercise supplemental jurisdiction over the plaintiff's remaining, ostensibly state law causes of action against the individual defendants. The plaintiff's claims against Perez and Carrington are dismissed without prejudice. Signed by Judge Martin L.C. Feldman. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANDY C. OLMEDA

CIVIL ACTION

v.

NO. 14-1904

CAMERON INTERNATIONAL CORPORATION, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court are four motions: (1) Cameron International
Corporation's
International

motion

for

Corporation's

summary
objections

judgment;
and

(2)

motion

to

Cameron
strike

plaintiff's summary judgment evidence; (3) Personnel Management
Group, Inc.'s motion for summary judgment; and (4) Personnel
Management

Group,

Inc.'s

objections

plaintiff's summary judgment evidence.

and

motion

to

strike

For the reasons that

follow, the motions to strike are GRANTED in part and DENIED in
part and the motions for summary judgment are GRANTED.
Background
This employment discrimination lawsuit arises from an offpremises, off-duty drive-by shooting incident on Highway 90 around
Morgan City, Louisiana.

Hours after leaving work, one drunk

employee, Scott Carrington, was being driven by another drunk
employee, Billy Perez; they had decided to scare a co-worker, Andy
Olmeda, by firing a shotgun in the vicinity of his moving vehicle.
That they did.

After driving about 30 miles, Perez and Carrington
1

pulled up behind and fired a shotgun at Olmeda's truck as they all
drove northbound up the highway.
Personnel Management Group, Inc., a Bloomington, Minnesota
company, recruits and deploys temporary skilled manufacturing
laborers and provides labor solutions to manufacturing companies in
the United States.1

For companies facing labor shortages, peak

season, production backlog, or other labor crises, PMG provides
skilled temporary replacement labor.

PMG recruits do part-time

contract work and have no guarantee of employment.

PMG supplies

employees to Cameron International Corporation on an as-needed
basis.2
Andrew C. Olmeda is half-white and half-Hispanic.

Olmeda, a

PMG temporary contract worker,3 began working at Cameron as a

1

At no time did PMG employ 20 people in the state of
Louisiana for 20 or more weeks.
2

PMG and Cameron are separate companies that do not
share any management, ownership, or financial control. Cameron
maintains its own operations, controls the employee's conduct, has
the right to hire and fire the contract employee, supervise the
employee, and set the employee's work schedule.
PMG did not
maintain an office at Cameron's facility, did not supply Cameron
with the majority of its workforce and did not engage in any
business venture.
3

Olmeda signed a temporary employment agreement with PMG
on March 12, 2013, in which Olmeda acknowledged that assignments
are temporary, there is no promise of employment, he is employed at
will, and he can be terminated without cause or notice. The PMGOlmeda temporary employment agreement requires Olmeda to represent
PMG and himself in a professional and respectful manner and abide
by all policies, terms, and conditions. Olmeda agreed to follow
PMG's "gold standard" and represent PMG, himself, and PMG's client
in a positive and productive manner, or he would be subject to
2

machinist at its facility in Berwick, Louisiana in May 2013.4
Olmeda was placed at Cameron by PMG recruiter Joe Coombs.
reported

Olmeda's

race

as

"white"

to

Cameron

when

PMG

providing

employee information. Olmeda admits that he may have told PMG that
he is white.5
As a machinist, Olmeda made parts for offshore and onshore
drilling;

he

worked

on

blow-out

preventers,

valve

bodies,

couplings, and generally anything that was associated with a valve.
During the workweek, PMG provided Olmeda with a hotel room in
Morgan City, five miles from Cameron's Berwick facility.

Olmeda

worked the night, or second, shift with 15-20 other workers; his
regularly scheduled hours were from 4:00 p.m. to 4:00 a.m. Cameron
held safety meetings at the start of each shift every day.

After

those meetings, Olmeda received his tasks for the evening and went
to his machine in the shop, which is a large warehouse.

Cameron's

Angelo Cardinale was in charge of second shift. Cardinale reported

immediate termination.
4

Before working at the Cameron facility, PMG placed
Olmeda at Tolomatic, a company that did not want Olmeda to return
to due inappropriate comments Olmeda had made at the job site.
5

That neither Cameron nor PMG perceived Olmeda as nonwhite or Hispanic appears to be without dispute in the record. It
is also notable that the investigation report regarding the
shooting incident lists Olmeda's race as "white" and his ethnicity
as "non-Hispanic."
3

to Melvin Burger, the senior production supervisor.6
Olmeda does not complain of any specific problems between him
and his co-workers from May through early September 2013; at least
none that he reported.7

But in the days leading up to the shooting

on September 14, 2013, Olmeda submits that things happened to stir
up hostility between him and other workers at Cameron.

After a

safety meeting on September 9, 2013, Olmeda announced to his coworkers that they should be ashamed of themselves for having
Cardinale clean up after them.

Construing this as obsequiousness,

the next day some of Olmeda's co-workers (Scott Carrington, Trent
Basas, and Thomas Bragg) yelled for hours at Olmeda, calling him
"snorkel."

Olmeda believes that "snorkel" meant that he had his

"head so far up [Cardinale's] ass that [he] needed a snorkel to
take a breath."

Olmeda believes that Scott Carrington (then an

apprentice at Cameron) came up with the nickname "snorkel." Olmeda
understood this to be typical shop talk, guys on the floor giving
each other a hard time.
The next day, Wednesday, September 11, 2013, another employee
complained to Cardinale at the safety meeting that people had been

6

Cameron's human resources department handled hiring and
firing, not Burger.
7

During the first few months of working at Cameron,
Olmeda spoke to his PMG recruiter, Joe Coombs. "I don't think I
actually mentioned anything about racial slurs about anything, but
he did ask me how it was going and I told him well we will see what
happens in the next couple months," Olmeda testified.
4

yelling "snorkel" the night before.

This being the first he had

heard of it, Cardinale spoke with Olmeda, and then he informed
Burger.

Burger spoke to Olmeda, who said that it was Bragg who was

the instigator.

Burger instructed Bragg to stop and to apologize

to Olmeda. Bragg apologized to Olmeda, who put the incident behind
him.

Burger followed up with Olmeda the next day to confirm Bragg

had apologized.

Olmeda never complained to Cardinale again.8

That same day, some of the second shift employees lined up to
purchase

boots

from

a

exchanged profanities.
about

owning

luxury

vender.

Olmeda

and

Scott

Carrington

According to Carrington, Olmeda bragged
cars

and

a

multi-million

dollar

Annoyed, Scott Carrington called him a "f–-king liar."9
says

that

Carrington

was

walking

with

Billy

Perez10

house.
Olmeda
when

he

(Carrington) called Olmeda "f--king dumba-- mother f--ker" or he
may have "told me to get the fuck out of the way, fucking Mexican
or something like that."

Olmeda told Carrington "f--k you" and

gestured with his middle finger. At the truck on September 11 "was
the first time [Carrington] made a racial comment" to Olmeda.

8

The "snorkel" incident was never reported to PMG.

9

Carrington says that, later, he walked past Olmeda's
work station and Olmeda told him "I hope you value your life
[because] it's all going to be gone soon."
Carrington, a war
veteran was particularly upset by the "value your life" comment.
10

Perez's title was "lead man," which meant that he was
charged with relaying instructions from Cardinale to the crew;
Perez did not have the power to hire, fire, discipline, approve
raises or promotions, or do evaluations.
5

The next day, on Thursday, September 12, 2013, Carrington
shouted "Hey you dumb mother f--ker."
called Carrington into his office.

Olmeda told Cardinale, who

Carrington then walked up to

Olmeda at his machine and said the same thing. Olmeda responded:
Look Scott, you must be stupid or something. Don't you
realize that this is the work place and I could bring
harassment charges up against you, which you probably
would lose your job, then I would sue you in civil court
and then I'd be the one laughing because you're a moron?
This exchange escalated:

Carrington said "Oh so that is how it's

going to be," to which Olmeda responded, "No don't you see you're
the one who is doing it, not me, I'm just there to [make] sure you
have enough rope."

The exchange culminated (Olmeda submits) into

a threat by Carrington.11

Olmeda reported the threat to Cardinale.

Cardinale agreed to email Burger and then sent Olmeda home around
midnight that night because Olmeda was angry and needed to cool
off.

Bragg called Olmeda at his hotel room, telling him not to

make "harassment charges."
Olmeda reported to work at 4:00 p.m. on Friday, September 13,
2013. Carrington and Perez left work four hours into second shift,
around 8:00 p.m.
Morgan City.

Sometime later, Perez picked up Carrington in

Accompanied by another co-worker named Trent Basas,

they first went to a restaurant and bar called Twin Peaks, where

11

Olmeda says that Carrington told him "You don't know
who you're fucking with . . . you keep going on with what you're
doing and you're going to be a dead guy mother f--ker." Olmeda
says that Carrington also said "watch your back . . . you're going
to end up a dead man."
6

they ate and drank beer and liquor.

Then they went to a pool hall

in Houma, where they continued to drink alcohol over the next few
hours.

They got very intoxicated.

they dropped off Trent.

On the way back to Morgan City,

It was during this time of "heav[y]

intoxict[ion]" that Perez and Carrington decided that they would
find Olmeda and fire a shotgun near his truck to frighten him.
They went to Carrington's house, where Carrington got his shotgun
and, at some point, Carrington loaded it.

Although "hazy" from

drinking, the plan was to find and follow Olmeda and "then do
something to just scare him." When Perez blinked the high beams on
his truck, that was the signal for Carrington to shoot, not at
Olmeda's vehicle, but toward the woods, as he drove by.
Olmeda left his shift at the normal time, around 4:00 a.m. on
Saturday morning, September 14.

He went to his hotel room,

preparing to leave town to go to his house in Mandeville for the
weekend.

Olmeda then met a friend at Wal-Mart in Morgan City at

5:00 a.m. to pick up a kitten to take with him.

He then filled up

his truck with gas and started down Highway 90 toward Mandeville.
At some point, Perez and Carrington saw Olmeda on the road and
waited for him and followed him.

After driving about 30 miles on

Highway 90, Perez pulled behind Olmeda and Carrington shot in the
vicinity of Olmeda's truck, according to Carrington only hitting
Olmeda's truck by accident.

Olmeda submits that his tire exploded

and that rounds struck his truck.

7

Olmeda pulled into a parking lot, where he called Cardinale,
who told him to call the police; he also called his girlfriend and
the police.

Olmeda also left a voicemail for Burger; when Burger

heard the voicemail, he called his supervisor (Duane Carriere),
PMG's human resources manager (Kelly Lambert), and the PMG liaison,
Erich Heitman. Olmeda called PMG's Joe Coombs. Coombs told Olmeda
to go back to the Berwick facility to get his tools.

Olmeda

refused, saying "I'm the victim . . . I'm going to stay home[;] I
just got fired upon."

Coombs sent an email to others at PMG

regarding the incident, advising that he had "explained [to Andy]
given this highly dramatic and chaotic nature of this incident, be
prepared for this assignment ending, if for no other reason than
his safety may not be assured while away from work." PMG submitted
a replacement for Olmeda's position.

Cameron suspended Carrington

and Perez pending an investigation; Cameron considered the incident
to be a criminal matter to be handled by the police department.
When Cameron learned of the shooting, Burger talked with
workers in the second shift as they reported to work on the day of
the incident.

Bragg prepared a written statement about the

argument that occurred between Olmeda and Carrington the day before
the shooting; Bragg states:
On 9-12-13, I was approached by Andy Olmeda and told
about a confrontation between himself and Scott
Carrington.
Andy told me that Scott had approached
Andy's area to get some holding clamps from a cabinet.
According to Andy, Scott had called him a dumb shit.
Andy then told Scott that he should shut the f--- up or
8

that he (Andy) would own Scott's truck, his house,
everything, and that Scott would be working for Andy for
the rest of his life. And that Scott would not have a
job anymore. I do not know what Scott's response was to
Andy, other than when Scott came to my machine and told
me what happened. All Scott said about it was that Andy
could get a brick thru his windshield. At no time did
Scott threaten to kill or harm Andy.
Detective

Blake

Tabor

Department investigated.

of

the

Terrebonne

Parish

Police

Detective Tabor asked Olmeda to submit a

detailed narrative of the events leading up to and including the
shooting, which Olmeda did a few days later.12

Nowhere in the

statement does Olmeda mention anything about race or any racial
comments made to him.

During the course of the interview and

investigation, Olmeda never mentioned that race or ethnicity played
any role in his interactions with Carrington and Perez.13

The

investigation report lists Olmeda as "white" and his ethnicity as
"non-Hispanic."

12

Olmeda's girlfriend typed up his statement.

13

Detective Tabor stated under oath:

Had Mr. Olmeda made any reference or
indication whatsoever that race or ethnicity
was involved or may have played a role, I
would have noted that and reported it because
we are required by the Federal Bureau of
Investigation to track any racial bias or
ethnic bias incidents. Additionally there is
an enhancement for crimes that involve race or
bias. . . .
Had I had any indication that
race or ethnic bias was involved, I would have
charged Mr. Carrington and Perez with a more
serious crime.
9

On Monday, September 16, 2013 the next workday after the
shooting, Cameron was notified by law enforcement that Perez and
Carrington admitted firing a weapon in the vicinity of Olmeda's
Cameron immediately terminated Perez and Carrington.14

vehicle.

Olmeda never returned to the Cameron facility; PMG had pulled
Olmeda and set up a replacement.15

Cameron did not request or

suggest that Olmeda not be allowed to return to work; PMG made that
decision.
that

On September 17, 2013, Burger emailed PMG and confirmed

Cameron's

Olmeda.

human

resources

department

approved

replacing

More than five months later on February 25, 2014 Olmeda

filed an EEOC charge, asserting that he was harassed due to
national origin.

A right to sue letter was issued on June 11,

2014.
Prior to the shooting on September 14, Olmeda never told PMG
or Cameron that he was getting harassed due to his ethnicity or
race.

Olmeda

never

filed

a

complaint

with

PMG

or

Cameron

complaining about racial slurs, phrases, or discrimination based on
race or ethnicity.

Nor did he report to PMG that he feared for his

14

Eventually, Carrington pleaded guilty to aggravated
criminal damage to property and illegal discharge of a firearm.
Perez pleaded guilty to aggravated criminal damage to property.
15

PMG submits that Olmeda's non-deployment was grounded
in the following: that he was a temporary worker with no guaranty
of work, a concern for his safety at Cameron, Cameron never
requested that he be sent back, Olmeda never requested that he be
sent back, and Olmeda did not dispute that the had participated in
verbal altercations at the Cameron site while he was at work (the
second such report to PMg by an employer of Olmeda).
10

life or safety, or that someone had threatened him physically. The
first time PMG was aware that Olmeda was asserting that he was
harassed due to race or ethnicity was when PMG received the EEOC
complaint dated February 25, 2014.
On February 25, 2014 Mr. Olmeda filed a charge of national
origin discrimination and retaliation with the EEOC; he alleged
that he complained daily to supervisors and human resources, to no
avail, and that, ultimately, Perez and Carrington followed him and
shot at him. He finally writes "I was fired in retaliation."16 The
EEOC issued Olmeda a right to sue letter on June 11, 2014.
On

August

20,

2014

Olmeda

sued

Cameron

International

Corporation; PMG, Inc. d/b/a a/k/a Personal Management Group d/b/a
PMG; Billy Perez; and Scott Carrington.

Seeking declaratory,

injunctive, and monetary relief, Olmeda initially purported to
advance six causes of action, which he describes in the complaint
as:
(1) retaliation due to sexual17 harassment, in violation
of Title VII and negligent screening, hiring, and
supervising; (2) unlawful discriminatory employment
practices under Title VII and Louisiana state law; (3)
lack of policy for racial harassment, discrimination and
retaliation and violence in the workplace in violation of
state law; (4) assault and battery [and] intentional

16

On February 27, 2014 Mr. Olmeda alleges that he filed
another charge with the EEOC (as well as with the Human Rights
Commission), this time charging that he was fired in retaliation
for complaining about employment discrimination.
17

Presumably, the reference to "sexual" harassment is a
typographical error in the complaint.
11

infliction [of emotional distress by] Dwight Caton; (5)
compensatory and punitive damages under Title VII are
allowed; (6) vicarious liability against ... Cameron and
PMG ... strictly liable as joint tortfeasors in a common
enterprise.18
Olmeda alleges that his employment was terminated the day after the
shooting incident, even though he had never received any write-ups
or negative performance evaluations.

Cameron submits that it did

not fire Olmeda, and PMG submits that Olmeda was not returned to
his assignment with Cameron because, among other reasons, it could
not protect him.

On November 5, 2014, the Court granted in part19

and denied in part PMG's motion to dismiss; Olmeda's claims against
PMG for workplace harassment and retaliation survived the motion.
Neither defendants Carrington nor Perez have filed any motions.
Cameron and PMG now, separately, seek summary judgment dismissing
Olmeda's claims against them.

They also seek to strike certain

evidence submitted by the plaintiff.

18

Cameron and Olmeda do not dispute that the claims
Olmeda is pursuing against it include: (1) vicarious liability for
assault and battery under La. Civ. Code art. 2315 and 2320; (2)
negligent screening, hiring, and supervision under La. Civ. Code
art. 2315 and 2320; (3) intentional and negligent infliction of
emotional distress; and (4) ethnic discrimination/harassment and
retaliation under Title VII.
19

As to PMG, the Court dismissed Olmeda's state law
claims for assault, battery, and intentional infliction of
emotional distress, and any other cause of action that is not a
substantive cause of action.
12

I.
A.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine dispute 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 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress

13

his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
defeat

summary

judgment

"[T]he nonmoving party cannot

with

conclusory

allegations,

unsubstantiated assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).

In deciding whether a fact

issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must
"resolve factual controversies in favor of the nonmoving party," it
must do so "only where there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir.
2013)(internal quotation marks and citation omitted).
B.
Cameron and PMG seek to confine the scope of the summary
judgment record.

First, both point out that Olmeda's separate

statement outlining his contested issue of genuine issues of
material facts fails to comply with this Court's Local Rules.
In compliance with Local Rule 56.1, Cameron and PMG submitted
separate statements of material facts as to which they contend

14

there is no genuine issue to be tried.

The plaintiff, however,

submits a list of 43 facts that he alleges are genuinely disputed.
This complies, in part, with Local Rule 56.2 (in that plaintiff
submitted a statement of material facts as to which he contends
there exists a genuine issue to be tried). But the plaintiff fails
to controvert all material facts in Cameron's and PMG's statements
and, thus, those facts not controverted are deemed admitted for the
purposes of the pending motions for summary judgment.

See Local

Rule 56.2 (“[a]ll material facts set forth in the statement
required to be served by the moving party will be deemed admitted,
for the purposes of the motion, unless controverted as required by
this rule.”).
Second, both PMG and Cameron have filed objections and motions
to strike certain evidence, including (1) the unsworn Thomas Bragg
interview transcript; (2) Andy Olmeda's sworn affidavit; (3) Laura
Hawkins' sworn affidavit; (4) all photographs; (5) all documents
regarding the EEOC complaint; and (6) all documents submitted
without

proper

foundation

or

containing

hearsay

or

other

inadmissible statements.
In resolving a motion for summary judgment, the Court "may
only

consider

admissible

evidence."

Coleman

v.

Jason

Pharmaceuticals, 540 Fed. Appx. 302, 306 (5th Cir. 2013)(citing
Fed. R. Civ. P. 56(c)(2) and Mersch v. City of Dallas, 207 F.3d
732, 734-35 (5th Cir. 2000)).

Rule 56(c)(2) allows a party to

15

"object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence."
1.

The Unsworn Bragg Telephone Interview Transcript

The plaintiff insists that Bragg's "testimony" is essential to
the issues of whether Cameron supervisors were aware of "the
horrific events" experienced by Olmeda and as to whether or not
such conduct occurred during working hours. Olmeda urges the Court
to

deny the motions to strike this evidence because he is "trying

to have him served for the July 6, 2015 phone/video deposition."20
Insofar as Olmeda submits the unsigned, unsworn Bragg transcript to
show the truth of the matter asserted by Bragg, it is inherently
unreliable and is inadmissible hearsay (Federal Rule of Evidence
801(c)), for which plaintiff offers no exception; the plaintiff
likewise fails even to suggest how the material can be presented in
a form that would be admissible in evidence.21
the

Bragg

transcript

from

the

summary

The Court strikes

judgment

record

and

disregards it.

20

Notably, notwithstanding plaintiff's failure to comply
with Rule 56(d), the Court continued the submission date on both
motions for summary judgment until one week after the scheduled
deposition, but counsel for plaintiff has failed to file any
additional papers suggesting that this deposition proceeded as
scheduled. The Court declines the plaintiff's invitation to delay
ruling on the pending motions.
21

The Bragg transcript also contains double hearsay,
which is inadmissible under Rule 805. Olmeda is required to show
how each statement is not hearsay (or double hearsay) or how the
statements are subject to a hearsay exception. He fails to do so.
16

2.

Plaintiff's Affidavit

Cameron and PMG object to Olmeda's post-deposition affidavit
and seek to strike it from the summary judgment record.
insist

that

Olmeda's

affidavit

contradicts

his

prior

They
sworn

deposition testimony without explanation. Olmeda counters that his
affidavit is admissible and that the Court cannot disregard it
merely because it is self-serving.

The Court agrees that it may

not disregard evidence merely because it is self-serving. However,
Olmeda's affidavit contains statements that contradict his prior
deposition testimony.

He likewise fails to offer any explanation

for the conflict; such statements will be disregarded insofar as
they serve only to improperly manufacture a fact issue.
Affidavits

filed

in

opposition

to

a

motion

for

summary

judgment may not be offered to contradict prior sworn testimony,
without explanation.

McCulley v. JTM Industries, Inc., 116 F.3d

1477 (5th Cir. 1997)(unpublished, per curiam); Doe ex re. Doe v.
Dallas

Indep.

Sch.

District,

220

F.3d

380,

386

(5th

Cir.

2000)(approving endorsement of the rule that "a plaintiff may not
manufacture a genuine issue of material fact by submitting an
affidavit that impeaches prior testimony without explanation").
There are clear contradictions between Olmeda's deposition
testimony

and

the

statements

in

his

later,

sworn

affidavit.

Defendants offer several examples.

(1)

Olmeda testified that the

only person that used a racial slur was Scott Carrington; yet in

17

his affidavit, Olmeda states that he was "called a Beaner, a
derogatory term of Mexican and subjected to racial slurs . . . on
a daily basis by Thomas Bragg,. . . Scott Carrington, Billy Perez
and

numerous

other

employees."

(2)

Olmeda

testified

that

Carrington made the "first" racial slur to him in the few days
prior to the shooting (called a "f--king Mexican" at the boot sale
truck) and that Carrington called him a "beaner" (derogatory for
Mexican) after the "snorkel" incident in the days leading up to the
shooting.

But in his affidavit, Olmeda states that he complained

to PMG about racial slurs from the first month of his employment at
Cameron.
tell

(3)

the

In his deposition, Olmeda testified that he did not

police

anything

about

racial

slurs

during

the

investigation into the shooting incident; in his affidavit, he
states he told the detectives about racial slurs.

(4)

Olmeda

testified that he called PMG's Joe Coombs four times22 in the week
before

the

shooting,

only

left

one

message,

and

did

not

specifically state anything of substance in the message; yet in his
affidavit, Olmeda states that he made several calls about racial
slurs to Coombs since late June 2013 and that he left "messages"
for Coombs.23

22

Contrast this four times to Olmeda's statement in his
affidavit that he called Coombs at least 25 times and never got an
answer. PMG notes that Olmeda has failed to produce copies of his
telephone records, disregarding PMG's request.
23

This statement in his affidavit is also contradictory
to another portion of his deposition testimony, wherein Olmeda
18

Cameron challenges other portions of Olmeda's affidavit on
additional grounds of hearsay24 and lack of personal knowledge.

In

support of its objection based on improper legal conclusions or
lack

of

personal

knowledge,

Cameron

challenges

statements

in

Olmeda's affidavit in which he suggests that Billy Perez had
threatened others in the past and was rehired by Cameron.

Because

Olmeda has not demonstrated his personal knowledge, the Court will
disregard such statements.

See

Rule 56(c)(4) ("[a]n 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.").
3.

Affidavit of Laura Hawkins

Olmeda submits a sworn affidavit of his girlfriend, Laura
Hawkins.

PMG and Cameron object to its consideration on the

grounds that it contains multiple hearsay statements, contradicts
his own deposition, lacks foundation, and otherwise fails to
contain admissible evidence.25 For the most part, the Court agrees.

testified that the first time Carrington made a racial comment to
him was on September 11, after the "snorkel" incident.
24

Cameron also submits that Olmeda's affidavit contains
hearsay. Olmeda offers no argument in opposition to this specific
challenge.
Insofar as Olmeda recounts in his affidavit
conversations he had with an unidentified supervisor and state
criminal court judge, any such statements are inadmissible hearsay.
25

Obviously, the Court does not take as fact Ms. Hawkins'
description of Carrington and Perez as supervisors; she has not
19

Insofar Olmeda seeks to offer the content of many of Ms.
Hawkins' statements as truthful, the Court will not consider those
hearsay statements. Some of what Ms. Hawkins swears to is that, in
the days leading up to the shooting (and before then on dates that
she does not remember), Olmeda called her, asking her to call
Coombs to complain that Olmeda was being called "a Beaner and Spic,
fat ass Mexican, and a dumb ass Beaner;"26 she says that she left
messages, but she never heard back from Coombs.

That Hawkins

swears that she left messages for Coombs is proper summary judgment
evidence.27
4.

Challenges to Other Evidence

Insofar as the defendants challenge the admissibility of
photographs and other evidence, the plaintiff has failed to respond
to these objections.

The defendants' objections are therefore

sustained as unopposed and because, as submitted, these exhibits
indeed lack foundation.

The Court disregards this other evidence,

which is listed in the defendants' papers.

The Court notes that

the plaintiff does not appear to rely on this evidence; of course,

demonstrated any foundation for knowledge
positions at her boyfriend's workplace.

as

to

supervisory

26

If Olmeda seeks to offer Hawkins' statements to
establish that, in truth and in fact, Olmeda was called derogatory
names, Olmeda may not do so on hearsay grounds.
27

It seems that the defendants are entitled to the
plaintiff's and Hawkins' telephone records. The Court sees no
reason why the defendants have not filed a motion to compel these
records.
20

the Court would not be tasked with considering any materials that
are not cited in the papers.

See Fed. R. Civ. P. 56(c)(3).
II.

Olmeda alleges two Title VII claims against each of PMG and
Cameron: hostile work environment and retaliation.
A.
PMG and Cameron seek judgment as a matter of law dismissing
the plaintiff's Title VII hostile work environment claim.28
Title VII of the Civil Rights Act of 1964 prohibits employers
from discriminating “against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because

of

such

national origin.”

individual’s

race,

color,

religion,

sex,

or

42 U.S.C. § 2000e-2(a)(1).

To establish a race or national origin-based hostile work
environment claim, a plaintiff must prove that:

(i) he belongs to

a protected class; (ii) he was subjected to unwelcome harassment;
(iii) the harassment was based on his race or national origin; (iv)

28

Initially, Cameron also moved for summary judgment
dismissing Olmeda's Title VII race/ethnic discrimination claim.
Olmeda does not oppose, presumably because he seeks to recover only
under hostile work environment and retaliation theories.
Even
assuming Olmeda was pursuing a Title VII discrimination claim
against Cameron, the Court finds that Cameron is entitled to
judgment as a matter of law because Olmeda cannot prove the fourth
element of his prima facie case.
There is no evidence in the
record establishing that Olmeda was replaced by a person outside of
the protected class, or that he was treated less favorably than
similarly situated employees of a different ethnicity. Merritt v.
United Parcel Service, 321 Fed. Appx. 410, 413-14 (5th Cir. 2009).
21

the harassment affected a “term, condition, or privilege of her
employment”; and (v) his employer knew or should have known of the
harassment and failed to take prompt, remedial action.

Hockman v.

Westward Communications, LLC, 407 F.3d 317, 325 (5th Cir. 2004);
Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003).
To determine whether a hostile work environment exists, in
particular whether the harassment affects a term or privilege of
employment, the Court applies a totality-of-the-circumstances test
that focuses on “the frequency of the discriminatory conduct; its
severity; and whether it unreasonably interferes with an employee’s
work performance.” Turner v. Baylor Richardson Medical Center, 476
F.3d 337, 347 (5th Cir. 2007)(citing Walker v. Thompson, 214 F.3d
615, 625 (5th Cir. 2000)(quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993)). Although
“[d]iscriminatory verbal intimidation, ridicule, and insults may be
sufficiently severe or pervasive” to support evidence of a Title
VII violation, “simple teasing, offhand comments, and isolated
incidents

(unless

extremely

serious)

will

not

amount

to

discriminatory charges” that can survive summary judgment. See id.
at 347-48 (citations omitted); see also Meritor Savings Bank v.
Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)(“mere
utterance of an ethnic or racial epithet which engenders offensive
feelings in an employee” is insufficient to affect the conditions
of employment to a sufficiently significant degree to violate Title

22

VII).
Cameron and PMG challenge Olmeda's ability to establish the
fourth element of the prima facie harassment claim. To satisfy the
fourth element -- whether the harassment affected a term or
condition of employment -- racial or national origin harassment
“must be sufficiently severe or pervasive ‘to alter the conditions
of

[the

victim’s]

environment.’”

employment

and

create

an

abusive

working

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 67

(emphasis added).29

Courts take into account the totality of the

circumstances, and the challenged conduct must be both objectively
and subjectively offensive.

Shepherd v. Comptroller of Pub.

Accounts, 168 F.3d 871, 874 (5th Cir. 1999) (citing Harris v.
Forklift, 510 U.S. 17, 21-22 (1993)).
Olmeda relies on a few incidents of harassing conduct.

29

He

The Fifth Circuit has recognized that:

[a]n egregious, yet isolated, incident can
alter the terms, conditions, or privileges of
employment and satisfy the fourth element
necessary to constitute a hostile work
environment.
The inverse is also true:
Frequent incidents of harassment, though not
severe, can reach the level of pervasive,
thereby altering the terms, conditions, or
privileges of employment such that a hostile
work environment exists. Thus, the required
showing of severity or seriousness of the
harassing conduct varies inversely with the
pervasiveness or frequency of the conduct.
Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th
Cir. 2007).
23

submits that in the days leading up to the shooting, Carrington for
the first time called Olmeda "f--king dumba-- mother f--ker" or he
may have "told me to get the fuck out of the way, fucking Mexican
or something like that." Olmeda submits that Carrington also called
him "Beaner."

Placing these comments in context, before these

comments were made, Olmeda was singled out for being a "snorkel",
or suck-up.

But Olmeda does not contend that the snorkel incident

or other profanity exchanges he had with Carrington occurred
because of his Hispanic descent.

Indeed, the record is clear that

Olmeda did not report to Cameron or PMG (or even the police
investigator) that he was being targeted and harassed due to his
race or national origin, although he did report that Carrington had
threatened him.30
To survive summary judgment, the harassment must be “so severe
[or]

pervasive

that

it

destroys

a

protected

opportunity to succeed in the workplace.”
874.

classmember’s

Shepherd, 168 F.3d at

“The alleged conduct must be more than rude or offensive

comments, teasing, or isolated incidents.”

Hockman v. Westward

Communications, LLC, 407 F.3d 317 (5th Cir. 2004) (citing Shepherd,
168 F.3d at 874); Lauderdale v. Tex. Dep’t of Criminal Justice, 512
F.3d 157, 163 (5th Cir. 2007)(quoting Faragher v. City of Boca
Raton,

524

U.S.

775,

788,

118

30

S.Ct.

2275,

141

L.Ed.2d

662

Olmeda fails to direct the Court to any evidence that
would, or in which he had, linked any threatening comment by
Carrington to his protected status.
24

(1998)(“Title VII ... is not a ‘general civility code,’ and ‘simple
teasing,’

off-hand

comments,

and

isolated

incidents

(unless

extremely serious) will not amount to discriminatory changes in the
‘terms and conditions of employment.’”).
Here, the few incidents in a weeklong period at the end of his
four-month long temporary placement (while rude, unprofessional,
and in poor taste) were hardly frequent, flagrant, physically
threatening, or humiliating and, therefore, do not rationally rise
to the level or degree of severity or pervasiveness necessary to
maintain a hostile work environment claim under the law.

See

Turner, 476 F.3d at 348 (plaintiff introduced insufficient evidence
that hostile work environment existed based on supervisor’s “ghetto
children” comments, university night school comment, and comments
related to plaintiff’s shopping habits, car, and son’s hobby
because such comments were isolated and ceased upon plaintiff’s
request). Further, these infrequent comments pale in comparison to
far more severe race-based comments that have been found to support
hostile work environment claims. See, e.g.,Walker v. Thompson, 214
F.3d 615, 625 (5th Cir. 2000)(holding that plaintiff survives
summary judgment where evidence demonstrated years of inflammatory
racial epithets, including “nigger” and “little black monkey”);
Daniels v. Essex Group, Inc., 937 F.2d 1264, 1266 (7th Cir.
1991)(finding summary judgment for defendant inappropriate where
plaintiff was subjected to “nigger jokes” for a ten-year period and

25

whose workstation was adorned with “a human-sized dummy with a
black head”); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182 (4th
Cir. 2001)(reversing summary judgment where plaintiff suffered
“incessant racial slurs” including “nigger” and “dumb monkey”); cf.
Pickens v. Shell Tech. Ventures, Inc., 118 Fed.Appx. 842, 850 (5th
Cir. 2004)(unpublished)(holding that a company Christmas party
where a skit with characters in blackface was performed and
racially insensitive comments were made did not create a hostile
work environment); Mosley v. Marion County, Miss., 111 Fed.Appx.
726, 728 (5th Cir. 2004)(unpublished)(three incidents involving the
use of racial slurs were insufficient to establish a hostile work
environment claim). And, importantly, Olmeda himself has submitted
no evidence to suggest that the infrequent off-hand remarks, one of
which was made while waiting in line to buy boots at a truck
outside of the shop, affected his work performance.

Although the

record supports a finding that perhaps the Berwick facility is
permeated by profanity, Title VII is not a civility code.

No

genuine issue of material fact exists as to whether Carrington's
"Mexican" and "Beaner" comments affected a term or condition of the
plaintiff’s employment.31
The Court finds summary judgment dismissing the plaintiff's

31

As to PMG, it is undisputed that no PMG employees
harassed Olmeda. Nor did PMG control Cameron's work site. Any
harassment claim against PMG fails as a matter of law for this
additional reason.
26

Title VII hostile work environment claim is appropriate on this
basis alone.32
genuine

Nevertheless, even if the Court determined that a

dispute

concerning

a

material

fact

precluded

summary

judgment on the fourth element (that is, if the Court considered
the shooting to be a race-based workplace incident, which is belied
by

the

record),

PMG

and

Cameron

remain

entitled

to

summary

judgment. Olmeda cannot demonstrate how either Cameron or PMG knew
or should have known of the harassing conduct and failed to take
prompt remedial action.

Carrington and Perez were fired within

days of the shooting and within a week of any derogatory comment
made by Carrington, as they should have been.
The Supreme Court has distinguished between cases in which a
hostile work environment is created by the plaintiff’s co-workers
and cases in which it is created by the plaintiff’s supervisor.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Aryain v.
Wal-Mart Stores Texas LP, 534 F.3d 473, 479 n.4 (5th Cir. 2008).
PMG submits that neither Perez nor Carrington were supervisors
within the meaning of Title VII.33

The Court agrees.

See Vance v.

32

Olmeda understandably focuses on the outrageous and
severe conduct of Carrington and Perez in carrying out their
drunken highway shooting. The Court does not minimize the severity
of this incident. However, Olmeda fails to demonstrate how this
episode could be considered as part of the workplace that Title VII
seeks to regulate. Olmeda cites no case literature in support of
his theory that this intentional criminal conduct perpetuated by
co-workers after hours and off premises triggers Title VII.
33

genuine.

Although Olmeda disputes this fact, the dispute is not
The only evidence in the record on this issue supports a
27

Ball State Univ., 133 S Ct. 2434, 2443 (2013); see also Cheshewalla
v. Rand & Son Constr. Co., 415 F.3d 847 (8th Cir. 2005)(finding
that

foreman

over

construction

laborers

was

"co-worker,"

not

"supervisor"); Ochoa v. Texas Metal Trades Council, 989 F. Supp.
828, 829 (S.D. Tex. 1997)("The function of the Leadman is primarily
to distribute work to fellow employees.
member of management.").

The Leadman is not a

Accordingly, the employer may be liable

for harassment by co-workers only if it "knew or should have known
of the harassment in question and failed to take prompt remedial
action."
(5th

Stewart v. Mississippi Transp. Comm'n, 586 F.3d 321, 330

Cir.

2009).

Cameron

took

prompt

remedial

action

by

immediately terminating Carrington and Perez following the shooting
incident and, relative to any uncivil exchanges in the workplace,
less than a week after Carrington made any "racial" comments to
Olmeda.34

finding that neither Perez nor Carrington were supervisors.
Although Perez was nominally "lead man," he was no manager. There
is no evidence in the record that would support a finding that
either individual defendant was empowered to take tangible
employment action against Olmeda.
34

That PMG could not fire the perpetrators (given that
Carrington and Perez were Cameron employees) does not support a
finding that PMG did not take prompt, remedial action.
The
plaintiff fails to provide any case law to support any theory that
PMG failed to take prompt remedial action. (Cameron did it for both
employers).
In any event, it is noteworthy that PMG pulled
Olmeda's placement immediately, at least in part due to safety
concerns for its temporary employee. Although this is the source
of Olmeda's retaliation claim, Olmeda cannot prove his prima facie
case of hostile work environment against either PMG or Cameron.
28

Accordingly, the plaintiff’s race or national origin-based
hostile work environment claims are hereby dismissed.
B.
Olmeda charges that PMG and Cameron unlawfully retaliated
against him based upon his complaints regarding a racially hostile
work environment.

PMG and Cameron, separately, move for summary

judgment dismissing Olmeda's retaliation claim because he cannot
prove his prima facie case.

The Court agrees.

Under Title VII, “an employer may not discriminate against an
employee because the employee has ‘opposed any practice made an
unlawful employment practice ... or because he has made a charge,
testified,

assisted,

or

participated

in

any

manner

in

investigation, proceeding, or hearing’ under Title VII.”

an
See

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 388 (5th Cir.
2007)(omission in original)(quoting 42 U.S.C. § 2000e-3).
Like employment discrimination claims, retaliation claims are
governed by the McDonnell Douglas burden-shifting framework.

Id.

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973)).

Under that framework, an employee

must first establish a prima facie case of retaliation by showing
that: (1) he engaged in a protected activity; (2) that his employer
took an adverse employment action; and (3) that a causal link
exists between the protected activity and the adverse employment
action.

McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th

29

Cir. 2007).

If the employee makes such a showing, the familiar

burden-shifting framework identified above applies: the employer
must articulate legitimate, non-discriminatory reasons for its
employment action and then, if articulated, the burden shifts back
to the employee to show that the employer’s proffered reasons are
a pretext for its actual retaliatory purpose.

See id.

Cameron and PMG submit that Olmeda cannot demonstrate that he
The Court agrees.35

engaged in protected activity.

There is no

evidence in the record that Olmeda complained to anyone at Cameron
that

he

had

been

the

target

discrimination or harassment.36

of

race

or

national

origin

The only evidence that PMG was on

notice that Olmeda was being harassed due to his race or national
origin is submitted in the Hawkins affidavit.37

Ms. Hawkins swears

that she left messages for PMG's Joe Coombs in the days leading up

35

It is also noteworthy that there is no link to the EEOC
complaint, which was not lodged until months after the shooting.
36

The record demonstrates that Olmeda complained about
the snorkel incident, which he concedes has nothing to do with race
or national origin. Olmeda also notified Cameron that Carrington
had threatened him; again, however, there is no evidence in the
record indicating that Olmeda advised Cameron that there was any
racial component to his exchanges with Carrington.
37

The Court must view this in the light most favorable
to the plaintiff and, therefore, assumes for the purposes of this
motion that Hawkins left voicemails for Coombs alerting him to her
boyfriend's alleged harassment in the days leading up to the
shooting.
Coombs of course disputes this and there is other
evidence in the record that contradicts this submitted fact. The
Court observes that the defendant would be entitled to discover Ms.
Hawkins' phone records to assist a jury in resolving the fact
dispute.
30

to the shooting.

Even assuming that a fact issue is raised as to

whether Hawkins' complaints on behalf of her boyfriend constitute
Olmeda

engaging

in

protected

activity,

his

retaliation

claim

against PMG nevertheless fails.
There is no evidence in the record supporting the third
element of Olmeda's prima facie retaliation element. Olmeda wholly
fails to demonstrate a causal link between any protected activity
and the adverse employment action.
dispute

that

Cameron

temporary placement.

did

not

As for Cameron, there is no

"fire"

Olmeda;

PMG

pulled

his

And assuming that pulling a temporary lended

employee's placement constitutes adverse employment action, there
is no evidence in the record linking this action to Olmeda's
voicemail complaints through his girlfriend to his PMG recruiter
(that he was being called racist names).

Rather, there is no

dispute that PMG pulled Olmeda's placement because it could not
assure his safety and due to character issues that had manifested
themselves at a prior job and at Cameron.38
III.
Finally, Cameron and PMG seek summary judgment dismissing the
plaintiff's state law claims.
A.
Cameron seeks summary judgment dismissing the plaintiff's

38

Notably, Olmeda initially told Coombs that he did not
want to return to the job site for fear of his safety.
31

vicarious

liability

for

assault

and

battery

claim;

negligent

screening, hiring, and supervision claim; and intentional and
negligent infliction of emotional distress claim.
1.

Vicarious Liability

Olmeda alleges that Cameron is vicariously liable for the
actions of its supervisory employees in the workplace.

Insofar as

Olmeda asserts that Cameron is liable for the assault and battery
committed by Carrington and Perez, Cameron submits that Louisiana
law is clear that such intentional acts are not withing the course
and scope of employment and, therefore, it is not vicariously
liable under La. Civ. Code articles 2315 and 2320.

The Court

agrees.
An employer is liable for the torts of an employee committed
while the employee is acting within the course and scope of his
employment.

La. Civ. Code art. 2320.

"Vicarious liability rests

in a deeply rooted sentiment that a business enterprise cannot
justly disclaim responsibility for accidents which may fairly be
said to be characteristic of its activities." Richard v. Hall, 874
So.2d 131, 138 (La. 2004).

An employer's vicarious liability for

conduct which is not its own extends only to the employee's
tortious conduct that is within the course and scope of employment.
Kelly v. Dyson, 40 So.3d 1100, 1105 (La. App. 5 Cir. 5/25/10).
"Course" refers to the time and place that the conduct occurred,
while "scope" examines the employment-related risk of injury.

32

Baumeister v. Plunkett, 673 So.2d 994, 996 (La. 1996).
In Baumeister, the Louisiana Supreme Court held that the court
of appeals erred in holding a hospital liable for the sexual
battery committed by one of its nursing supervisors on a coemployee during working hours on the hospital's premises.
999.

Id. at

In so holding, the state supreme court embraced a four-part

test for vicarious liability: (1) whether the tortious act was
primarily employment rooted; (2) whether the act was reasonably
incidental to the performance of the employee's duties; (3) whether
the act occurred on the employer's premises; and (4) whether the
act occurred during the hours of employment.

Id. at 996-97

(citation omitted). Finding that (3) and (4) were met, but not (1)
and (2), the state supreme court concluded that the "sexual assault
was entirely extraneous to [the] employer's interests."

Id. at

1000.
Applying these principles to the facts here compels the same
result. The Court finds that Cameron had no duty to protect Olmeda
from intentional acts committed by co-employees after hours and off
premises; a drive-by highway shooting after hours of drinking at
private

establishments

Carrington's
machinists.39

and

was

Perez's

Olmeda's

not

reasonably

official

vicarious

39

incidental

work-related

liability

claim

to

duties

as

borders

on

Accord Kelley v. Dyson, 40 So.3d 1100 (La. App. 5 Cir.
5/25/10)(dismissing vicarious liability and negligence claims
brought by worker who, after several fights at work, was assaulted
33

frivilous; summary judgment is warranted.
2.

Negligent screening, hiring, and supervision

Cameron submits that it is entitled to summary judgment
dismissing the plaintiff's negligence claims because (a) negligence
claims are precluded by Louisiana's worker's compensation regime;
(b)

Cameron

owed

no

duty

to

Olmeda;

or

(c)

the

individual

defendants' intoxicated condition was the cause in fact of the
plaintiff's harm.

Olmeda counters that the workers compensation

bar does not apply when supervisory employees engage in intentional
conduct; that Cameron owed Olmeda a duty to protect him; that
intoxication does not preclude liability; and that Cameron, through
Cardinale, was negligent in failing to ensure Olmeda's safety and
the breach of that duty "resulted in Olmeda's attack and nearly
resulted in his death."
Under

the

Louisiana

Worker's

Compensation

Act,

La.R.S.

23:1032, an injured employee is limited to the remedies available
under the Act.

La.R.S. 23:1032(A)(1)(a).

A borrowed employee is

barred from bringing a negligence action against either his general
or borrowing employer.

Sanchez v. Harbor Constr. Co., Inc., 968

So.2d 783, 787 (La. App. 4 Cir. 10/3/07).
Olmeda
employee.

does

not

dispute

that

he

was

Cameron's

borrowed

Rather, he argues that intentional tortious acts of

by co-worker, who used a steel toed boot to kick and break the
plaintiff's ankle).
34

supervisors are excepted from the Act's exclusivity provisions; he
invokes

La.R.S.

23:1032(B),

which

provides:

"Nothing

in

this

Chapter shall affect the liability of the employer . . . resulting
from

an

intentional

act."40

He

provides

no

support

for

his

argument; he fails to suggest how his negligence claims against
Cameron survive the exclusivity provisions of the Act.

La.R.S.

23:1032(A).
Even if his negligence claims against Cameron survived the
exclusivity bar, Olmeda's negligence claims would nevertheless fail
for two separate reasons.

First, the Court finds as a matter of

law that Cameron had no duty under the circumstances.

Second,

Carrington's and Perez's own intentional conduct getting drunk,
retrieving a shotgun, and shooting at Olmeda while driving, was the
cause-in-fact of Olmeda's harm.
La. C.C. art. 2315 provides: “Every act whatever of man that
causes damage to another obliges him by whose fault it happened to
repair

it.”

In

other

words,

in

negligence

cases,

where

circumstances create a duty to do so, the defendant must use
reasonable care so as to avoid injuring another person.

Louisiana

courts have adopted a duty-risk analysis in determining whether to

40

To satisfy the requirements of the intentional act
exception, by definition, the alleged conduct must go beyond gross
negligence or mere failure to maintain safe conditions at work.
Bazley v. Tortorich, 397 So.2d 475, 480 (La. 1981)(intentional in
this context means that "the defendant either desired to bring
about the physical results of his act or believed they were
substantially certain to follow from what he did.").
35

impose liability under the general negligence principles of La.
C.C. art. 2315.

To recover, the plaintiff must prove that (1)

Cameron had a duty to conform its conduct to a specific standard
(the duty element); (2) Cameron's conduct failed to conform to the
appropriate

standard

(the

breach

element);

(3)

Cameron's

substandard conduct was a cause-in-fact of his injuries (the causein-fact element); (4)

Cameron's substandard conduct was a legal

cause of the injuries (the scope of protection element); and (5) he
suffered damages (the damages element).
Co.

v.

J.E.S.,

Inc.,

10/23/09)(citations

29

So.3d

omitted).

See Bridgefield Cas. Ins.

570,

“[A]ll

573
four

(La.App.
inquiries

affirmatively answered for plaintiff to recover.”
Royal

Orleans

Hotel,

66

5/18/11)(citation omitted).

So.3d

528,

532

1

Cir.

must

be

Jiminez v. Omni

(La.App.

4

Cir.

“Whether a duty is owed is a question

of law; whether defendant has breached a duty is a question of
fact.” Brewer v. J.B. Hunt Transport, Inc., 35 So.3d 230, 240 (La.
2010).

A claim against an employer for the torts of an employee

based on the employer's alleged direct negligence in hiring,
retaining, or supervising the employee is governed by the same
duty-risk analysis.

Griffin v. Kmart Corp., 776 So.2d 1226, 1231

(La.App. 5 Cir. 11/28/00).

When an employer hires an employee who

in the performance of his duties will have a "unique opportunity"
to commit a tort against a third party, he has a duty to exercise
reasonable care in the selection of that employee.

36

Id.

Here, Olmeda has not alleged, let alone submitted evidence
indicating, that employment by Cameron gave Carrington or Perez a
unique opportunity to inflict harm on Olmeda.

There is nothing in

the record to support imposing a duty on Cameron to protect Olmeda
on the weekend and away from the facility and certainly not from a
highway drive-by shooting. See Kelley v. Dyson, 40 So.3d 1100 (La.
App. 5 Cir. 5/25/10).
Finally, the record supports a finding that no conduct on the
part of Cameron could credibly be considered a substantial factor
in bringing about the harm to Olmeda; rather, the drunken shooting
perpetrated by Carrington and Perez is certainly an independent,
intervening act.

See, e.g., Perkins v. Entergy Corp., 782 So.2d

606, 611 (La. 2001); Fabre v. B.F. Goodrich Co., 218 So.2d 617, 620
(La. App. 4 Cir. 1969).
3.

Intentional Infliction of Emotional Distress

To recover on an intentional infliction of emotional distress
claim in Louisiana, a plaintiff is required to show that (1) the
defendant’s conduct was extreme and outrageous; (2) the plaintiff
suffered severe emotional distress; and (3) "the defendant desired
to inflict severe emotional distress or knew that severe emotional
distress would be certain or substantially certain to result from
his conduct." White v. Monsanto Co., 585 So. 2d 1205, 1209 (La.
1991).

The conduct requirement in an IIED claim is difficult for

a plaintiff to meet; the standard does not reach "mere insults,

37

indignities, threats, annoyances, petty oppressions, or other
trivialities," but, rather, the behavior must "go beyond all
possible bounds of decency, [and must] be regarded as atrocious and
utterly intolerable in a civilized community." Id.; see also
Iturralde v. Shaw Grp., Inc., 512 Fed. Appx. 430, 435 (5th Cir.
2013) ("Under Louisiana Civil Code Article 2315, plaintiffs must
meet a high burden of proof to prevail on an IIED claim.").
"Unlike an action grounded in negligence, an action sounding in
intentional tort causes us to focus on whether the employer desired
or knew that the harm facing the plaintiff as a result of the
complained-of conduct was substantially certain to result from the
conduct."

Bourgeois v. Curry, 921 So.2d 1001, 1010 (La. App. 4

Cir. 12/14/05).
Cameron submits that there is no evidence as to the third
element.

The Court agrees.

supporting

an

IIED

claim

There is no evidence in the record
against

Cameron

and

certainly

none

demonstrating that Cameron knew or desired that the harm facing
Olmeda would be substantially certain to result from its conduct.41
Accordingly, Cameron is entitled to summary relief on the
plaintiff's state law claims.

41

All the plaintiff offers in support of his IIED claim
against Cameron is "[c]ertainly be shot at with a shotgun with
buckshot and deflating a tire as well as causing loss of control of
Olmeda's truck is a traumatic event when you fear death." Olmeda
fails to link this episode to Cameron.
38

B.
The Court previously dismissed Olmeda's claims against PMG for
assault, battery, intentional infliction of emotional distress, and
vicarious

strict

liability.

PMG

now

seeks

summary

judgment

dismissing the plaintiff's claim for negligent screening, hiring,
and supervising and his state discrimination claim under La.R.S.
23:301.

The plaintiff has failed to submit any argument in

opposition, apparently abandoning any remaining state law claims
against PMG.

Even so, the Court finds that PMG is entitled to

judgment as a matter of law dismissing these claims.

Without the

benefit of briefing by the plaintiff, his negligent hiring claim
against PMG is barred by the Louisiana Worker's Compensation Act.
Benoit v. Turner Industries Group, L.L.C., 85 So.3d 629, 634 (La.
2012) ("the workers compensation regime represents a quid pro quo
compromise

of

interests,

whereby

'the

employee

receive[s]

an

absolute right to recover limited benefits in exchange for the
employer's tort immunity.'").

Even if not, the record is clear

that PMG did not hire, supervise, or train either Carrington or
Perez (or otherwise have any presence on site at the Berwick
facility) such that the grounds for a negligence claim against PMG
is completely lacking.

As to any claim the plaintiff might have

been pursuing under Louisiana's employment discrimination law,
La.R.S. 23:301, it fails as a matter of law because the record
confirms that PMG did not employee 20 or more employees within the

39

state of Louisiana for each working day in each of 20 or more
calendar weeks in any year.42
Accordingly, IT IS ORDERED: that Cameron's motion to strike is
hereby GRANTED in part and DENIED in part, and its motion for
summary judgment is hereby GRANTED.

IT IS FURTHER ORDERED: that

PMG's motion to strike is hereby GRANTED in part and DENIED in
part, and its motion for summary judgment is hereby GRANTED.

The

plaintiff's claims against Cameron and PMG are dismissed. Finally,
IT IS ORDERED: that the Court declines to exercise supplemental
jurisdiction over the plaintiff's remaining, ostensibly state law
causes of action against the individual defendants.43 See 28 U.S.C.
§ 1367; the plaintiff's claims against Perez and Carrington are
dismissed without prejudice.
New Orleans, Louisiana, July 13 2015
__,

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

42

Moreover, the record evidence indicates that PMG and
Cameron were not related entities that shared control of labor.
43

The Court has nothing before it addressing which
causes of action remain against the individual defendants. It is
difficult to glean from the complaint which causes of action remain
pending against the individual defendants.
There appear to be
assault and battery causes of action and perhaps a cause of action
for intentional infliction of emotional distress against Perez and
Carrington.
40