Mitchell v. Isidore Newman School

Filing 32

ORDER AND REASONS DENYING without prejudice 16 MOTION to Dismiss for Lack of Prosecution, but insofar as the motion may be construed as a Motion to Compel Arbitration, the motion is GRANTED and the case is hereby stayed, again, pending arbitration, to be reopened, if necessary, upon proper motion. Signed by Judge Martin L.C. Feldman on 8/23/2017.(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BERTHA MITCHELL

CIVIL ACTION

v.

NO. 17-558

ISIDORE NEWMAN SCHOOL

SECTION "F"

ORDER AND REASONS
Before the Court is the defendant’s motion to dismiss for
failure to prosecute.

For the reasons that follow, the motion to

dismiss is DENIED without prejudice, but insofar as the motion may
be construed as a motion to compel arbitration, the motion is
GRANTED and the case is hereby stayed, again, pending arbitration.
Background
This Title VII lawsuit arises from allegations by a former
bus driver at Isidore Newman School that she was discriminated
against and subject to a hostile work environment based on her sex
and that she was fired in retaliation for reporting this conduct
to the Equal Employment Opportunity Commission.
This factual summary is drawn from the plaintiff’s state court
petition.

In October 2013, Bertha Mitchell worked as the only

female bus driver for Newman. Her immediate supervisor was Jeffrey
Wilson, and Wilson’s immediate supervisor was Fred Hill.
1

During her first week of work, Mr. Wilson “brushed his hand
against [Ms. Mitchell’s] breasts at least two to three times.”

By

the third time, Ms. Mitchell was upset and uncomfortable and told
him “you keep hitting my breasts.”
occasions,

Wilson

“would

He stopped.

intentionally

brush

up

But, on later
against

[Ms.

Mitchell] while reaching for things on a bus instead of asking her
to move out of the way.”
Mr. Wilson made inappropriate remarks to Ms. Mitchell.

Mr.

Wilson regularly called Ms. Mitchell pet names like “honey” and
“baby,” yet he called male employees by their given names.

Ms.

Mitchell

her

asked

Mr.

Wilson

to

keep

his

interactions

with

professional, and asked to be called either Bertha or Ms. Mitchell.
Mr. Wilson regularly asked Ms. Mitchell why she was not
married, and told her he was looking for a wife.

Mr. Wilson did

not ask male employees about their marital status or dating life.
When Ms. Mitchell told Mr. Wilson on one occasion that she could
not get to work for 5:00 a.m. because the City buses would not be
running that early, Mr. Wilson invited her to spend the night at
his house.

Mr. Wilson followed Ms. Mitchell around Newman campus,

and regularly called Ms. Mitchell’s cell phone unnecessarily.
Ms. Mitchell met with Mr. Hill on several occasions to discuss
Mr. Wilson’s inappropriate behavior.

On January 9, 2015, Ms.

Mitchell complained in writing to Mr. Hill about Mr. Wilson’s
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sexually harassing behavior and Mr. Hill’s tacit approval of it.
A

meeting

was

Mitchell.

convened

among

Mr.

Hill,

Mr.

Wilson,

and

Ms.

Mr. Hill told Mr. Wilson to stop calling Ms. Mitchell

pet names.
Shortly thereafter, Mr. Wilson placed garbage bags on Ms.
Mitchell’s

bus

complaining.

as

a

means

of

retaliation

against

her

for

Ms. Mitchell sent Jeff Mallon (of Newman Human

Resources) a letter on January 12, 2015, informing him that Ms.
Mitchell had reported Mr. Wilson’s behavior to Mr. Hill on multiple
occasions, but that Mr. Hill did not fix the situation.

This made

Mr. Hill angry, and Mr. Hill began setting up Ms. Mitchell for
failure,

such

as

reprimanding

her

for

parking

a

bus

in

an

unauthorized area without having given her prior instruction not
to park there.
One time when she was off work, Mr. Hill contacted Ms.
Mitchell at home and informed her that she must move her bus on
Newman’s premises before he got to work the next day (despite the
fact that another driver on duty that day could have moved the
bus).

Ms. Mitchell had to ride public transportation three hours

round trip to move a bus that she had not been instructed to move
before.

Despite complying with Mr. Hill’s request, Ms. Mitchell

was disciplined; she was suspended without pay for three weeks.

3

Ms.

Mitchell

was

regularly

required

to

drive

dirty,

defective, or non-air-conditioned buses, while male bus drivers
got to drive clean, air-conditioned buses.

On one occasion, the

bus she was assigned to drive was releasing smoke, a condition
which she reported to Mr. Hill.

Mr. Hill forced her to continue

driving the bus even though he knew it had been filled with the
wrong gas twice while on the road.

As a result, Ms. Mitchell,

faculty, and students inhaled smoke.

When a teacher on the bus

called Mr. Hill, he relented and allowed Ms. Mitchell to switch
buses.
Mr. Hill reduced Ms. Mitchell’s hours, typically within one
week

of

behavior.

Ms.

Mitchell

complaining

to

him

about

Mr.

Wilson’s

It was Mr. Wilson who picked up the extra work that Ms.

Mitchell lost.
During the last week of the school semester in 2015, Ms.
Mitchell noticed that Mr. Wilson was following her again when she
was leaving school. Ms. Mitchell talked to a neighborhood security
guard, who instructed her to call the police, which she did on the
last day of school.
“honey” again.

In June 2015, Mr. Wilson called Ms. Mitchell

Ms. Mitchell complained to Mr. Hill to no avail.

In July 2015, Ms. Mitchell was summoned to Mr. Mallon’s office
because she was talking about the sexual harassment situation to
other employees.

On September 9, 2015, Ms. Mitchell gave Newman’s
4

Headmaster, Dale Smith, a written report detailing Mr. Wilson’s
harassing behavior, and Mr. Hill’s and Mr. Mallon’s complacency
regarding the harassment, as well as Mr. Wilson’s and Mr. Hill’s
retaliatory behavior toward her and the sanitation and mechanical
issues with buses.

At a meeting that day with Mr. Smith, Mr. Smith

said that he was not aware of Ms. Mitchell’s previous complaints,
and that he would talk to Mr. Mallon.
On October 17, 2015, Mr. Wilson again followed Ms. Mitchell
as she walked to the bus stop to go home after work.

Two days

later, Ms. Mitchell texted Mr. Hill about Mr. Wilson following
her;

Mr.

Hill

responded

to

stop

correspondence” to him by text message.

sending

“this

type

of

Later that same day, Ms.

Mitchell emailed Mr. Hill about Mr. Wilson’s harassing behavior.
Mr. Hill responded the next day:

“If you feel threatened or in

danger in any way, that should be followed up with the proper
authorities.”

He reiterated that Ms. Mitchell should not text him

about Mr. Wilson following her.

Ms. Mitchell emailed Mr. Hill

again on October 26, 2015 explaining that she had been in touch
with the police, who notified her to notify her employer.
On November 1, 2015, Ms. Mitchell sent Mr. Mallon a letter
with copies of her text correspondence with Mr. Hill.

Two days

later, Ms. Mitchell sent Mr. Mallon a letter detailing Hill’s
failure to prevent Wilson from harassing her, Hill’s retaliatory
5

conduct toward her, and other harassing conduct by Wilson.
same

day,

Ms.

Mitchell

filed

with

the

EEOC

a

That

charge

of

discrimination, alleging discrimination and retaliation based on
sex.
A few days later, Ms. Mitchell was on her bus in the afternoon
completing

a

pre-trip

(checking

that

properly before the children board).

the

bus

is

functioning

Mr. Hill told her to move

her bus, but Ms. Mitchell could not do so because a truck was
blocking the road.

Mr. Hill banged on her bus door and yelled at

her.
On November 17, 2015, Newman fired Ms. Mitchell, citing as
cause that she “could not get along with her coworkers.”

As a

result, on December 1, 2015, Ms. Mitchell filed a second EEOC
charge, alleging retaliatory termination.

On February 17, 2016,

the EEOC conducted a mediation between Ms. Mitchell and Newman, to
no avail.

On September 8, 2016, Ms. Mitchell received from the

EEOC a right to sue letter.

On November 16, 2016, Ms. Mitchell

(then represented by counsel) sued Newman in state court, alleging
claims for sex discrimination and hostile work environment, and
retaliation under Title VII of the Civil Rights Act and state law,
as well as negligent hiring, retention, or supervision under state
law.

Newman removed the case to this Court, invoking this Court’s

federal question jurisdiction.

Ms. Mitchell requested that the
6

Court

stay

her

case

so

that

the

parties

could

proceed

to

arbitration; 1 the Court granted the motion on February 15, 2017.
Counsel for Ms. Mitchell advised the Court that she had been
notified of all deadlines, and moved to withdraw as her counsel;
the Court granted the motion on February 17, 2017. 2

On August 7,

2017, the Court granted Newman’s motion to reopen the case. Newman
now moves to dismiss Ms. Mitchell’s case for lack of prosecution.
I.
Rule 41(b) of the Federal Rules of Civil Procedure allows a
defendant to move for an involuntary dismissal of a lawsuit or
claim “[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order.”

Dismissal of an action with

prejudice “is an extreme sanction that deprives the petitioner of
the opportunity to pursue his claim.”

Millan v. USAA Gen. Indem.

Co., 546 F.3d 321, 326 (5th Cir. 2008)(quotation omitted).

The

Court’s discretion to dismiss claims with prejudice is accordingly

Newman and Ms. Mitchell entered into a mutual arbitration
agreement at the outset of Mitchell’s employment in which the
parties agreed to bring any claims against the other in
arbitration.
The Agreement requires that the claimant seeking
arbitration “must submit a written ‘Request for Arbitration’” to
the Head of School, and that the initiating party must then “serve
a copy of the RFA on the party or parties against whom the claim
is brought through hand delivery or certified mail, and must pay
a $300 filing fee.
2 As grounds for the motion to withdraw as counsel, plaintiff’s
former counsel stated that Ms. Mitchell had refused to provide an
address where she lives “or respond to the request in any way.”
7
1

limited in that it is “warranted only where a clear record of delay
or contumacious conduct by the plaintiff exists and a lesser
sanction would not better serve the interests of justice.”
(citations and

quotation omitted). 3

In

Id.

cabining the Court’s

discretion to dismiss an action with prejudice, the Fifth Circuit
mandates the presence of at least one of three aggravating factors:
“(1) delay caused by [the] plaintiff himself and not his attorney;
(2) actual prejudice to the defendant; or (3) delay caused by
intentional conduct.” Millan, 546 F.3d at 326; Renobato v. Compass
Bank

Corp.,

differently,

480

Fed.Appx.

“[i]n

general,

764,
‘a

766
plain

(5th

Cir.

record

2012)(stated
of

delay

or

contumacious conduct is found if one of the three aggravating
factors is also present...”).
II.
Newman submits that Ms. Mitchell’s four month disappearance
and failure to initiate arbitration proceedings constitutes a
clear record of delay, and that at least one aggravating factor is
present: the plaintiff’s lack of interest in her case and failure

The Fifth Circuit has also instructed that dismissal with
prejudice is appropriate only where, in addition to a clear record
of delay or contumacious conduct by the plaintiff, the record shows
that the district court employed lesser sanctions that proved to
be futile. Dominguez v. Crosby Tugs, L.L.C., --- Fed.Appx. ---,
2017 WL 3271117, at *3 (5th Cir. Aug. 1, 2017)(quoting Mastronardi
v. Wells Fargo Bank, 653 Fed.Appx. 356, 358 (5th Cir. 2016)(per
curiam).
8
3

to prosecute it is attributable to her, not her former attorney.
Newman contends that alternative sanctions are unlikely to prompt
diligent prosecution, given that Ms. Mitchell moved to stay her
case to pursue arbitration, but then she simply did not initiate
arbitration proceedings.

Finally, Newman submits that alternative

sanctions would be futile because the deadlines to pursue her
claims under Title VII and state law have lapsed pursuant to the
parties’ arbitration agreement.

In response to Newman’s motion,

Ms. Mitchell submits that she continues to try, without success,
to hire an attorney to represent her in this matter and that she
recently started a new job in Atlanta.
Mitchell
agreement,

has

failed

and

that

to
the

adhere

to

deadlines

Newman replies that Ms.

the
to

parties’
pursue

her

arbitration
claims

in

arbitration have lapsed rendering futile anything less than a
dismissal with prejudice.
Newman must persuade the Court that it “may...bring out the
heavy

artillery

of

dismissal

with

prejudice”

because

“lesser

weapons at its disposal have failed to achieve the desired end.”
Dominguez, 2017 WL 3271117, at *3.
showing. 4

Newman fails to make this

It has been six months since the Court stayed this case

Insofar as Newman appears to seek a ruling from this Court on the
merits of any prescription or statute of limitations defenses it
may advance, the Court declines to resolve disputes that the
parties have agreed to submit to binding arbitration.
9

4

pending arbitration, and the plaintiff has not violated any Court
orders. As Newman concedes, if it had moved to compel arbitration,
then Ms. Mitchell would be in violation of a Court order and Ms.
Mitchell’s inaction would be sanctionable or contemptible conduct.
But

Ms.

Mitchell

arbitration

and

voluntarily
then

moved

simply

failed

to
to

stay

her

case

initiate

pending

proceedings.

Although the Court agrees that this dilatory conduct is wasteful,
frustrating, and attributable alone to the pro se plaintiff, on
this record, dismissal with prejudice is premature.
v.

Compass

Bank

Corp.,

480

Fed.Appx.

764,

766

See Renobato
(5th

Cir.

2012)(affirming dismissal with prejudice for failure to prosecute
when the plaintiff did not initiate arbitration, despite being
given three years to comply with its order compelling it to do so,
and where the district court employed lesser sanctions that proved
to be futile); see also Salt Lick Bancorp. V. F.D.I.C., 187
Fed.Appx.

428,

447

(6th

Cir.

2006)(affirming

dismissal

when

plaintiff did not initiate arbitration for over two years even
though

the

plaintiff

had

difficulty

retaining

counsel

and

obtaining documents from a third party); Rogers v. Kroger Co., 669
F.2d

317,

321-22

(5th

Cir.

1982)(reversing

district

court’s

dismissal of plaintiff’s claim where there was “nothing in the
district court’s order and opinions or the record indicating that

10

less severe sanctions were considered and found to be futile or
contrary to the interests of justice”).
Accordingly, IT IS ORDERED: that Newman’s motion to dismiss
for failure to prosecute is hereby DENIED without prejudice.
Insofar as Newman’s motion may be construed as a motion to compel
arbitration, IT IS ORDERED: that the motion to compel is GRANTED,
and Ms. Mitchell is hereby ordered to comply with the terms of the
parties’ arbitration agreement; whether or not she has an attorney
to

represent

her,

Ms.

Mitchell

must

initiate

arbitration

proceedings within 21 days of this Order and Reasons.

Failure to

do so will be punishable by sanctions, including dismissal of her
claims with prejudice for failure to prosecute.
FURTHER

ORDERED:

administratively

that
closed,

the

case

for

is

hereby

statistical

Finally, IT IS
stayed

purposes)

(and

pending

arbitration, to be reopened, if necessary, upon proper motion.

New Orleans, Louisiana, August 23, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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