Garcia v. Algiers Charter Schools Association et al

Filing 21

ORDER granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim and 10 Motion to Dismiss Party. For the foregoing reasons, the Court GRANTS ACSA's motion to dismiss, and GRANTS IN PART and DENIES IN PART Green 's motion to dismiss. Plaintiff's claims for assault and battery against both ACSA and Green, intentional infliction of emotional distress against ACSA, and negligence against ACSA are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 3/9/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LINDSAY GARCIA

CIVIL ACTION

VERSUS

NO. 17-8126

ALGIERS CHARTER SCHOOLS
ASSOCIATION, INC. ET AL.

SECTION “R” (3)

ORDER AND REASONS
Defendants move to dismiss several of plaintiff’s claims.1 For the
following reasons, the motions are granted in part and denied in part.

I.

BACKGROUND
Plaintiff Lindsay Garcia is a teacher at the William J. Fisher School in

Algiers, Louisiana. 2

Plaintiff alleges that Stanley Green, the school’s

principal at the time, began sexually harassing her in August 2016.3 Green
allegedly made unwanted sexual overtures and comments in person, in notes
he left on plaintiff’s desk, in text messages, and during telephone calls. 4
Plaintiff asserts that she complained to her immediate supervisor and to the

1
2
3
4

R. Docs. 7, 10.
R. Doc. 1 at 2-3 ¶ 3.
Id. at 3 ¶ 5.
Id.

human resources department of Algiers Charter Schools Association (ACSA),
but that no action was taken.5 Green left the William J. Fisher School in early
2017.6
Plaintiff sued ACSA, the William J. Fisher School, and Green on August
22, 2017.7 She seeks damages under Title VII, and also asserts claims for
negligence, intentional infliction of emotional distress (IIED), and assault
and battery. ACSA now moves to dismiss plaintiff’s assault and battery,
IIED, and negligence claims, and Green moves to dismiss the assault and
battery and IIED claims.

II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead

enough facts to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)). A claim is facially plausible “when the plaintiff

Id. at 4 ¶¶ 7-8. ACSA operates the William J. Fisher School and is
plaintiff’s employer. Id. at 2-3 ¶¶ 2-3. According to plaintiff, ACSA
investigated Green’s behavior after a third party brought it to the attention
of ACSA human resources personnel and plaintiff confirmed the
allegations. See R. Doc. 1-4 at 5-6.
6
R. Doc. 7-1 at 2.
7
R. Doc. 1. Attached to the complaint is a detailed affidavit by plaintiff
describing her interactions with Green and her conversations with human
resources personnel. R. Doc. 1-4.
2
5

pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678. A court
must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Twombly, 550 U.S.
at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. If there
are insufficient factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face
of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007),
the claim must be dismissed.

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III. DISCUSSION
A.

Assault and Battery

Under Louisiana law, “[a]ssault is an attempt to commit a battery, or
the intentional placing of another in reasonable apprehension of receiving a
battery.” La. R.S. § 14:36; see also Rice v. ReliaStar Life Ins. Co., 770 F.3d
1122, 1135 (5th Cir. 2014) (defining assault as “the imminent threat of a
battery” (citation omitted)). A battery, in turn, is defined as “harmful or
offensive contact with a person, resulting from an act intended to cause the
plaintiff to suffer such a contact.” Caudle v. Betts, 512 So. 2d 389, 391 (La.
1987); see also La. R.S. § 14:33 (defining battery as “the intentional use of
force or violence upon the person of another”).
Plaintiff fails to state a claim of either assault or battery. She does not
allege any actual physical contact between her and Green. Plaintiff does
allege that on September 12, 2016, Green told her—while she was walking a
group of students to the restroom—that he wanted to “kidnap” or “snatch”
someone, “subdue” them, and “keep them for a period of time.” 8 He also
allegedly stated that he was “planning it out,” but did not want to hurt or
bruise the person.9 According to plaintiff, she nervously laughed and told

8
9

R. Doc. 1-4 at 4.
Id.
4

him that “he can’t do that to kids,” and Green responded that it was not a kid
he wanted to kidnap and subdue.10 Later that day, Green asked plaintiff if
she would like to be kidnapped or subdued. 11

This incident allegedly

occurred in a school hallway, with groups of children nearby. 12
Generally, “[m]ere words do not constitute an assault.” Groff v. Sw.
Beverage Co., 997 So. 2d 782, 787 (La. App. 3 Cir. 2008). But “a combination
of threats, present ability to carry out the threats, and reasonable
apprehension of harmful or offensive contact may suffice.” Id.; see also
McVay v. Delchamps, Inc., 707 So. 2d 90, 93 (La. App. 5 Cir. 1998) (“To
constitute an assault, threats, coupled with the present ability to carry out
the threats, are sufficient when one is placed in reasonable apprehension of
receiving an injury.”). The threat of harmful or offensive contact, however,
must be imminent. Rice, 770 F.3d at 1135; see also Groff, 997 So. 2d at 787
(affirming summary judgment on assault claim partially because coemployee “had no weapon” and “did not move toward [plaintiff] in a manner
that would indicate a threat of imminent harmful or offensive contact”).
Even if Green’s statements constituted a threat to kidnap or subdue
plaintiff, plaintiff pleads no facts upon which the Court may infer that Green

10
11
12

Id.
Id.
Id.
5

was able to kidnap her when he made those statements, or that the
threatened kidnapping was imminent. That Green made the statements in
public, with groups of children nearby, suggests otherwise.

Therefore,

plaintiff fails to state a claim of assault or battery against Green.
Plaintiff’s assault and battery claims against ACSA are predicated on
its vicarious liability for Green’s conduct. Because plaintiff fails to state a
claim for either assault or battery against Green, her claims against ACSA
must also fail.

Moreover, plaintiff pleads no facts suggesting that any

threatened kidnapping would be “within the ambit of [Green’s] assigned
duties and also in furtherance of [ACSA’s] objective.”

Baumeister v.

Plunkett, 673 So. 2d 994, 996 (La. 1996) (quoting Scott v. Commercial Union
Ins. Co., 415 So.2d 327, 329 (La. App. 2 Cir. 1982)). Thus, even if plaintiff
stated a claim for assault against Green, her factual allegations would not
support an assault claim against ACSA based on vicarious liability.
B.

Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress, a
plaintiff must allege that: (1) the defendant’s conduct was extreme and
outrageous; (2) the emotional distress suffered by the plaintiff was severe;
and (3) the defendant intended to inflict severe emotional distress, or knew
that such distress would be certain or substantially certain to result from his
6

conduct. White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991). To satisfy
the first element, the defendant’s conduct must “go beyond all possible
bounds of decency, and . . . be regarded as atrocious and utterly intolerable
in a civilized community.” Id. Such conduct “does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other
trivialities. Persons must necessarily be expected to be hardened to a certain
amount of rough language, and to occasional acts that are definitely
inconsiderate and unkind.” Id.
“[I]n a workplace setting,” Louisiana courts have “limited the cause of
action to cases which involve a pattern of deliberate, repeated harassment
over a period of time.” Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1026
(La. 2000). At the same time, “[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.” White, 585
So. 2d at 1210.
1.

Plaintiff’s IIED claim against Green

Plaintiff pleads sufficient facts to support an IIED claim against Green.
Plaintiff argues that Green’s repeated harassment constituted extreme and
outrageous conduct. Plaintiff points to several examples of Green’s alleged
harassment, including his allusions to kidnapping and subduing her,
7

discussed earlier. She also points to a meeting on November 29, 2016, when
Green stared at plaintiff’s vagina and asked, “Why you keep making me beg
for it? Why don’t you just give me that pussy?” 13 In addition, whenever
Green saw plaintiff in the hallway, he allegedly bit his lip, grinned, and shook
his head while following and staring at her, and constantly badgered her with
the phrase, “why you keep making me beg for it.” 14 Further, she attests that
Green repeatedly called her out of class to make sexual comments and
overtures. 15

According to plaintiff, Green’s harassment made her feel

uncomfortable, anxious, and frightened, caused her to cry on several
occasions and vomit once, and led her to seek counseling. 16 Plaintiff argues
that because Green was a principal and received sexual harassment training,
Green should have known that plaintiff’s severe emotional distress would be
substantially certain to result from his harassment. 17
First, Green’s alleged conduct rises to the level of extreme and
outrageous. The Louisiana Supreme Court has recognized that “a pattern of
on-going, repeated harassment” in the workplace may constitute outrageous
conduct. Bustamento v. Tucker, 607 So. 2d 532, 538 (La. 1992). While mere

13
14
15
16
17

R. Doc. 1-4 at 5.
Id. at 3.
Id.
Id. at 3, 5, 6, 8
R. Doc. 12-1 at 5.
8

“demonstrations of affection” cannot support liability under Louisiana law,
Noto v. Regions Bank, 84 F. App’x 399, 403 (5th Cir. 2003) (per curiam),
frequent comments and gestures of a sexual nature may, see, e.g., Prunty v.
Arkansas Freightways, Inc., 16 F.3d 649, 654 n.14 (5th Cir. 1994) (applying
Texas law). Plaintiff alleges a pattern of ongoing, repeated harassment in the
form of frequent sexual comments and gestures. Moreover, plaintiff alleges
that Green implicitly threatened to kidnap and subdue her. This alleged
conduct is sufficiently extreme and outrageous to satisfy the first element of
an IIED claim.
Second, plaintiff has alleged that she experienced severe emotional
distress. In Smith v. Amedisys Inc., 298 F.3d 434 (5th Cir. 2002), the Fifth
Circuit noted that “there is no bright-line test for determining whether [a
plaintiff’s] emotional distress meets the level of severity necessary” to
establish the second element of an intentional infliction of emotional distress
claim. Id. at 450. But “the threshold is high.” Id. According to the Louisiana
Supreme Court, “[t]he distress suffered must be such that no reasonable
person could be expected to endure it. Liability arises only where the mental
suffering or anguish is extreme.” White, 585 So. 2d at 1210. In Bustamento,
for example, the Louisiana Supreme Court found the second element of an
IIED claim satisfied because the plaintiff’s “psychiatrist diagnosed her as
9

being on the verge of a nervous breakdown” from the defendant’s
harassment. 607 So. 2d at 535. But in Smith, the Fifth Circuit found that the
plaintiff’s depression, for which she did not seek medical treatment, and
feelings of anger, disgust, and embarrassment were insufficient to satisfy this
element. 298 F.3d at 450.
Here, the facts alleged in plaintiff’s affidavit permit the plausible
inference that her mental suffering or anguish was extreme.

Green’s

behavior allegedly caused her to feel uncomfortable, anxious, and scared
over the course of several months, impairing her performance at work.18
Plaintiff broke down in tears while recounting Green’s behavior to human
resources personnel on November 30, 2016, and cried and vomited after a
December 5, 2016 meeting about Green’s behavior.19 These reactions clearly
constitute emotional distress. See Restatement (Second) of Torts § 46 cmt. j
(Am. Law Inst. 1965) (“Emotional distress . . . includes all highly unpleasant
mental reactions, such as fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment, worry, and nausea.”).
Moreover, unlike in Smith, this emotional distress led plaintiff to seek

18
19

R. Doc. 1-4 at 10.
Id. at 5, 8.
10

psychiatric help.20

These facts raise the reasonable expectation that

discovery will reveal sufficient evidence of severe emotional distress.
Third, the facts alleged in plaintiff’s affidavit permit the plausible
inference that Green intended to inflict severe emotional distress, or knew
that such distress would be certain or substantially certain to result from his
conduct. Direct evidence of such intent is not necessary to establish liability.
See Taylor v. State, 617 So. 2d 1198, 1204-05 (La. App. 3 Cir. 1993); see also
Boutte v. United Parcel Serv., Inc., No. 17-787, 2017 WL 3917144, at *8 (E.D.
La. Sept. 7, 2017) (inferring intent to cause severe emotional distress from
defendant’s conduct). Here, Green’s alleged pattern of sexual advances—
including his implicit threat to kidnap and subdue plaintiff—continued long
after plaintiff told Green that she did not want a relationship with him.
Moreover, Green was plaintiff’s boss and should have known that a sexual
relationship with plaintiff would have been inappropriate.

That Green

received sexual harassment training further suggests his awareness of the
severe emotional distress caused by a pattern unwanted sexual advances.
These facts give rise to the plausible inference that Green knew his allegedly
harassing conduct would be substantially certain to result in plaintiff’s severe
emotional distress.

20

Id. at 3, 6, 8
11

2.

Plaintiff’s IIED claim against ACSA

Plaintiff fails to state an IIED claim against ACSA. At most, plaintiff’s
allegations support the inference that ACSA investigated Green’s conduct,
but that this investigation was inadequate. Plaintiff argues that because of
the investigation’s inadequacy, plaintiff continued to suffer from Green’s
harassment until Green’s separation from the school in early 2017. 21
“An employer’s continued inaction” after receiving an employee’s
complaints of harassment “may give rise to a claim for intentional infliction
of emotional distress.” Martin v. Bigner, 665 So. 2d 709, 712 (La. App. 2 Cir.
1995).

But plaintiff points to no authority suggesting that a merely

inadequate investigation rises to the level of outrageous and extreme
conduct. To the contrary, the Fifth Circuit rejected a similar argument in
McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007) (per curiam).
There, the plaintiff had internally complained of harassment by a coemployee. The employer reviewed the complaint and determined that it was
not substantiated. Id. at 555. Although the plaintiff experienced emotional
distress after learning the outcome of the employer’s investigation, the Fifth
Circuit held that the employer’s conduct was not outrageous or extreme. Id.
at 563. Here, ACSA allegedly conducted an investigation but determined

21

R. Doc. 13-1 at 3.
12

that plaintiff’s complaint could not be corroborated. 22 As in McCoy, this
conduct cannot support a claim of intentional infliction of emotional
distress. Plaintiff’s IIED claim against ACSA must be dismissed.
C.

Negligence

Plaintiff’s negligence claim is based on ACSA’s failure to terminate
Green, which allegedly “plac[ed] her in danger of a sexual predator” at her
workplace.23 This claim is barred by the Louisiana Workers’ Compensation
Act (LWCA). The LWCA provides the exclusive remedy for personal injuries
caused by an employer’s or coworker’s negligence when those injuries arise
out of and in the course of employment. La. R.S. §§ 23:1031, 1032; see also
Duncan v. Wal-Mart La., L.L.C., 863 F.3d 406, 408 n.1 (5th Cir. 2017);
Hilliard v. Jefferson Par., 991 F. Supp. 2d 769, 778 (E.D. La. 2014) (LWCA
bars negligent retention claims against employers). This exclusive remedy
extends to damages for emotional distress. See Tumbs v. Wemco, Inc., 714
So. 2d 761, 764-65 (La. App. 4 Cir. 1998). Because plaintiff’s alleged injuries
arise out of and in the course of her employment, plaintiff fails to state a
claim for negligence against ACSA.

22
23

R. Doc. 1-4 at 9.
R. Doc. 1 at 4 ¶ 10.
13

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS ACSA’s motion to

dismiss, and GRANTS IN PART and DENIES IN PART Green’s motion to
dismiss. Plaintiff’s claims for assault and battery against both ACSA and
Green, intentional infliction of emotional distress against ACSA, and
negligence against ACSA are DISMISSED WITH PREJUDICE.

9th
New Orleans, Louisiana, this _____ day of March, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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