Perkins v. Pel Hughes Printing, LLC et al

Filing 74

ORDER granting 66 Motion for Reconsideration; GRANTING 25 MOTION for Summary Judgment filed by Pel Hughes Printing, LLC, John Victor Hughes. Signed by Judge Jay C. Zainey on 1/22/19. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KATHY PERKINS

CIVIL ACTION

VERSUS

NO. 17-6689

PEL HUGHES PRINTING, LLC ET AL.

SECTION A(4)

ORDER AND REASONS
Before the Court is a Motion for Reconsideration (Rec. Doc. 66) filed by Defendants
Pel Hughes Printing, LLC and John Victor Hughes (hereinafter collectively referred to as
“Defendants”). The Motion, set for submission on January 9, 2019, is before the Court on the
briefs without oral argument. The Court has also received and reviewed Defendants’ reply (Rec.
Doc. 70) and Plaintiff’s response (Rec. Doc. 71). Having considered the motion and memoranda
of counsel, the record, and the applicable law, the Court finds that the Motion for
Reconsideration (Rec. Doc. 66) is GRANTED.
I.

Background
Kathy Perkins worked for Pel Hughes Printing, LLC (“PHP”) as a Human Resource

Administrator. (Rec. Doc. 1, Exhibit A ¶ 5). On December 30, 2015, Perkins was admitted into
Ochsner Hospital’s Outpatient Behavioral Mental Unit Program due to alleged verbal abuse by
John Victor Hughes, president of PHP. (Id, ¶¶ 9-12). After being diagnosed with stress,
depression, and anxiety, Perkins remained in the hospital for two weeks. (Id., ¶ 12). While this
leave was covered by the Family Medical Leave Act (“FMLA”), Hughes allegedly called
Perkins’ disabled daughter, Aubrey Pitre, and told her that, “Unless [Perkins] comes back to
work soon, I’ll have to let her go.” (Id. ¶¶ 13-14). Perkins asserts that she returned to work
against her physician’s advice on January 18, 2016, out of fear of termination. (Id., ¶ 16).
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Defendants assert that on January 18, 2016, Hughes’ wife had a conversation with
Perkins which resulted in an “agreement” that PHP would terminate Perkins’ employment after
ninety days. (Rec. Doc. 25-5, p. 2). On April 4, 2016, Perkins took a scheduled day off to receive
an epidural. (Rec. Doc. 1, Exhibit A ¶ 21). The next day, Perkins experienced a mental
breakdown and was admitted to Ochsner Hospital for suicidal ideations. (Id.). Perkins remained
hospitalized until April 13, 2016. PHP terminated Perkins’ employment on May 2, 2016. (Id., ¶¶
21, 26).
Perkins filed suit alleging that Defendants violated the FMLA regarding the leave she
took in January 2016 and that Defendants intentionally inflicted emotional distress. (Id. ¶¶ 14,
32). Defendants filed a Motion for Summary Judgment on all of Plaintiff’s claims. (Rec. Doc.
25). Plaintiff filed an opposition to the motion (Rec. Doc. 61) and Defendants replied (Rec. Doc.
64). On December 4, 2018, this Court granted summary judgment in part as to Plaintiff’s claims
under the FMLA and denied summary judgment in part as to Plaintiff’s claim for intentional
infliction of emotional distress (“IIED”). (Rec. Doc. 65). Defendants now move this Court to
reconsider the judgment regarding the denial of summary judgment on Plaintiff’s claim for IIED.
II.

Legal Standard
The Federal Rules of Civil Procedure do not recognize a motion for reconsideration. Bass

v. United States Dep't of Agric., 211 F.3d 959, 962 (5th Cir. 2000). Nevertheless, the Fifth Circuit
has treated a motion for reconsideration as a motion to alter or amend judgment pursuant to Rule
59(e) of the Federal Rules of Civil Procedure when filed twenty-eight days after entry of the
judgment from which relief is being sought. Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d
367, 371 n.10 (5th Cir. 1998); see also Fed. R. Civ. P. 59(e). A Rule 59(e) motion may be granted
on four grounds: “(1) to correct manifest errors of law or fact upon which judgment is based, (2)
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the availability of new evidence, (3) the need to prevent manifest injustice, or (4) an intervening
change in controlling law.” Lines v. Fairfield Ins. Co., No. 08–1045, 2010 WL 4338636, at *1
(E.D. La. Oct. 21, 2010) (citing Peterson v. Cigna Group Ins., No. 99–2112, 2002 WL 1268404,
at *2 (E.D. La. June 5, 2002)). “The Court enjoys considerable discretion in granting or denying
such a motion.” Gabarick v. Laurin Mar. (America) Inc., No. 08–4007, 2010 WL 5437391, at *5
(E.D. La. Dec. 23, 2010) (citing Boyd's Bit Serv., Inc. v. Specialty Rental Tool & Supply, Inc., 332
F.Supp.2d 938, 939 (W.D. La 2004)). The Fifth Circuit has held that a Rule 59(e) motion is not
the proper vehicle for “rehashing evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479
(5th Cir. April 2004).
III.

Discussion
In its Order and Reasons (Rec. Doc. 65), the Court found that Plaintiff’s opposition to

Defendant’s Motion for Summary Judgment was based primarily on her self-serving affidavit.
Thus, the Court ordered Perkins to submit to a deposition within the following forty-five days.
(Rec. Doc. 65, p. 6). In the instant motion, Defendants assert that Perkins was deposed prior to
submission of her opposition, and she is still unable to present evidence in support of her claim
for IIED. (Rec. Doc. 66, p. 1). Upon the Court’s request, Defendants’ counsel provided the Court
with a copy of Perkins’ entire deposition. Considering the new evidence, the Court now takes
under consideration the Motion for Summary Judgment (Rec. Doc. 25) regarding Perkins’ claim
for IIED.
A. Summary Judgment
Summary judgment is appropriate only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” when viewed in the
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light most favorable to the non-movant, “show that there is no genuine issue as to any material
fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.2002) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986)). A dispute about a material fact is “genuine”
if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.
(citing Anderson, 477 U.S. at 248). The court must draw all justifiable inferences in favor of the
non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the moving party has initially
shown “that there is an absence of evidence to support the non-moving party's cause,” Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with “specific
facts” showing a genuine factual issue for trial. Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusory allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v.
Recile, 10 F.3d 1093, 1097 (5th Cir.1993)).
B. Intentional Infliction of Emotional Distress
In White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991), the Louisiana Supreme
Court established the three elements necessary for a plaintiff to recover for IIED: (1) that the
conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by
the plaintiff was severe; and (3) that 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. For the conduct to be “extreme and outrageous,” the conduct “must be 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.” White, 585 So.2d at
1209.
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“Recognition of a cause of action for IIED in a workplace environment has usually been
limited to cases involving a pattern of deliberate, repeated harassment over a period of time.” Id.
at 1210. In cases involving an employment relationship, Louisiana courts have held that, “a
plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and
outrage by a supervisor with authority over him than if he were a stranger.” Id. The
determination of a pattern of harassment “has been characterized as a sliding scale approach
under which even relatively ‘mild’ harassment may become tortious if continued over a
substantial time period.” Deus v. Allstate Ins. Co.,15 F.3d 506, 515 (5th Cir. 1994). (citing
Bustamento v. Tucker, 607 So.2d 532, 538 (La.1992)). Through a pattern of harassment, minor
isolated acts may create a “hostile work environment” resulting in outrageous conduct. Id.
Louisiana jurisprudence establishes that “hostile environment claims have limited the tort's reach
to harassment falling outside the standard friction arising from an employment relationship and
infringing on issues unrelated to employment and protected by statutory and constitutional
rights.” Id. at 516. Such examples include sexual harassment, threats of physical violence, and
racial discrimination. Id.
The Louisiana Supreme Court has held that in cases where the plaintiff is particularly
susceptible to emotional distress, the defendant’s knowledge of that particular susceptibility is a
factor courts should consider. White, 585 So.2d at 1210. “Unless the actor has knowledge of the
other's particular susceptibility to emotional distress, the actor's conduct should be judged in the
light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.” Id.
Louisiana law codifies the “vulnerable victim” category of claims for IIED in the Restatement
(Second) of Torts § 46 comment F which states:

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The extreme and outrageous character of the conduct may arise from the actor's
knowledge that the other is peculiarly susceptible to emotional distress, by reason
of some physical or mental condition or peculiarity. The conduct may become
heartless, flagrant, and outrageous when the actor proceeds in the face of such
knowledge, where it would not be so if he did not know. It must be emphasized
again, however, that major outrage is essential to the tort; and the mere fact that the
actor knows that the other will regard the conduct as insulting, or will have his
feelings hurt, is not enough.
C. Analysis
In her sworn declaration, Perkins stated that Hughes repeatedly subjected her to a
“pattern of harassment over a substantial period of time.” (Rec. Doc. 61, Exhibit A p. 2). She
stated that he would yell at her and call her names. (Id.). He would also make derogatory
comments about women, tease her about her need to take medication, and threaten to fire her on
a daily basis. (Id., Exhibit A p. 5).
Defendants argue that pursuant to the Louisiana jurisprudence, it is clear that the conduct
alleged by Perkins does not give rise to the extreme and outrageous conduct necessary for
Perkins’ IIED claim. (Rec. Doc. 25-5, p. 7). Perkins’ allegations of derogatory comments, threats
of employment termination, and criticism of employee work performance unequivocally do not
constitute extreme and outrageous conduct. (Id.). Defendants also argue that Perkins fails to
produce evidence corroborating her allegations of misconduct and calculated intent. (Id. at 9).
These allegations made by Perkins are contrary to Hughes’ statements in his deposition.
Defendants assert that Hughes never yelled at his employees and never made a comment
derogatory towards women. (Rec. Doc. 62-3, Exhibit A pp. 3-4).
Perkins also declared in a sworn statement that Defendants had prior knowledge that she
suffered with depression, anxiety, and bipolar disorder as she had disclosed her medical
condition to Defendants when she was first employed. (Rec. Doc. 61, p. 11). She asserted that
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she clearly exhibited her maladies through crying spells and anxiety. (Id). Defendants countered
by citing Hughes’ deposition to state that he was unaware that Perkins was diagnosed with
bipolar disorder and clinical depression including that he did not know her December 2015
hospitalization was related to those conditions. (Rec. Doc. 62, p. 5).
Upon the Court’s request, Defendants’ counsel provided the Court with a copy of
Perkins’ entire deposition. When asked whether she liked Hughes, Perkins responded that she
didn’t like him because he didn’t believe in God and that, “He screamed and yelled at me a lot.”
(Deposition, p. 116). Perkins testified that most of Hughes’ yelling related to a co-worker who
had a stroke. Hughes would yell at her about not filling out particular forms (Id. at 192). Perkins
was given instructions not to talk to the co-worker’s daughter or fill out the forms because there
was an on-going dispute as to the type of benefits to which the co-worker was entitled. (Id. at
207-210). The Court notes that Louisiana jurisprudence generally limits extreme and outrageous
conduct to issues unrelated to employment.
Perkins testified that Hughes would say “silly” things that were “maybe not funny” but
were “maybe hurtful.” (Deposition, p. 204). In order to better grasp the severity of Hughes’
conduct, counsel for Defendants asked a series of questions regarding specific allegations set
forth in the state court petition. The allegation that, “Hughes would randomly approach Ms.
Perkins and tell her that he should have never allowed her to work for him,” occurred more than
once but the occasions were far apart in time. She couldn’t recall if this occurred years apart. (Id.
at 146). When asked about the allegation that Hughes would say “Women are stupid and should
be at home cleaning the house and cooking,” Perkins said that this type of remark would occur
more frequently, about once every two weeks. (Id. at 148). She testified that this occurred in
front of other employees, but she couldn’t specify who. (Id. at 154). With regard to Perkins’
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allegation that, “Hughes would tease Ms. Perkins about her need to take medication,” Perkins
stated that she thought he was having problems because this occurred during a time when he was
living at work. (Id. at 169). She stated she thinks he was partially reaching out for help. (Id.).
When asked to identify a time he “belittled” her about taking medication she said he did belittle
her, but she couldn’t recall a certain time. (Id. at 191).
A source of the harassment Perkins identified in her deposition included that Hughes
bullied her about the loss of her house. Perkins specified that, “He bullied me about the loss of
my house saying, ‘What happens when you get your house foreclosed? What does the bank do? I
wouldn’t know because my house has not been foreclosed.’” (Deposition, p. 188). When asked
how frequently this occurred, Perkins stated that about once a week Hughes would call her into
his office to see how things were going and then make a “joke.” (Id.).
Counsel asked Perkins to discuss the causes of mental anguish leading up to her FMLA
approved leave. Perkins stated that the stress began when the co-employee suffered from a stroke
while at work. (Deposition, p. 76). It became stressful to do her job because she worked in
Human Resources and Hughes didn’t want to process the paperwork related to the co-worker.
(Id. at 77). The stress continued because her job functions changed due to an outsourcing of one
of her tasks. (Id. at 79). Perkins also testified that she and a handful of other employees received
pay decreases. (Id. at 82). The other factors for stressors of mental anguish included dealing with
her mother, physical pain, and harassment. (Id. at 157).
Defense counsel questioned Perkins on whether she discussed Hughes’ conduct with coworkers or reported the yelling to anyone. Perkins stated that co-employees heard the yelling and
once she told Hughes’ wife that he yelled at her, but she did not recall complaining to anyone
else or report anything even though she worked in Human Resources. (Deposition, p. 121-123).
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Despite all these alleged maladies of Hughes, Perkins stated that she wanted to return to Pel
Hughes because she loved her job. (Id. at 113).
The Court concludes that even in a workplace environment, there exists no genuine issue
of material fact as to whether Hughes’ conduct was extreme and outrageous. IIED claims are for
exceptional circumstances in which a pattern of harassing conduct “goes beyond all possible
bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized
community.” According to Perkins’ deposition, Hughes inappropriately yelled at Perkins and he
made “hurtful” and “silly” remarks, but the Court declines to find that a reasonable jury could
return a verdict for the non-moving party. Even if these assertions were true, this conduct which
may be classified as crude, rough, and uncalled for does not give rise to a cause of action of
repetitive harassment causing severe distress. The Court understands that Perkins had several
stressors in her life; however, none of the Defendants’ conduct gives rise to the extreme and
outrageous conduct as required by Louisiana jurisprudence for IIED.
In so far as to what Hughes knew about her “medical issues” and the allegations of
Perkins as a “vulnerable victim,” Perkins said that he knew she was struggling with the passing
of her father and the refinancing of her home. (Id. at 193). She stated that she told Hughes she
had to refinance her house. She admitted that she attempted to elicit sympathy from Hughes
because Hughes gave pay raises to people with “sad stories.” (Id. at 82-84). The Court notes that
Perkins asserts that, “He said he was going to do whatever he could to keep me on.” (Id. at 197).
Nevertheless, there appeared to be communication issues between what was said in person
versus what was said in email and Perkins’ failure to receive a formal offer and formally accept.
(Id. at 198).

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It is clear from the deposition that Hughes tried to help Perkins find another job at the
company to help her with her financial situation. Counsel asked Perkins whether Hughes knew
of her FMLA leave; she replied, “No.” (Id. at 101). The Court declines to find that a reasonable
jury could find that Hughes’ had knowledge of a particular susceptibility to emotional distress
such that his behavior was in fact extreme and outrageous.
IV.

CONCLUSION
Accordingly;
IT IS ORDERED that Defendants’ Motion for Reconsideration (Rec. Doc. 66) is

GRANTED. Defendants’ Motion for Summary Judgment (Rec. Doc. 25) is GRANTED with
respect to all of Plaintiff’s claims including intentional infliction of emotional distress.
New Orleans, Louisiana, this 22nd day of January, 2019

__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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