Duncan v. Celestine et al

Filing 38

ORDER and REASONS - IT IS ORDERED that Jazz Casino Company and Harrah's New Orleans Management Company's motion for summary judgment 29 is GRANTED, in part, as to all claims against Harrah's New Orleans Management Company and the direct negligence claims against Jazz Casino Company, and DENIED, in part, as to the vicarious liability claim against Jazz Casino Company, as stated within document. Signed by Judge Martin L.C. Feldman on 10/9/2019. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SHANTA DUNCAN

CIVIL ACTION

v.

NO. 18-6143

CHRISTOPHER CELESTINE, ET AL.

SECTION “F”

ORDER AND REASONS
Before the Court is Jazz Casino Company and Harrah’s New
Orleans Management Company’s motion for summary judgment that they
are not vicariously or primarily liable for an employee’s alleged
assault and battery. For the reasons that follow, the motion is
GRANTED, in part, as to all claims against Harrah’s New Orleans
Management Company and the direct negligence claims against Jazz
Casino Company, and DENIED, in part, as to the vicarious liability
claim against Jazz Casino Company.
Background
A casino guest says a security guard sexually assaulted her
at Harrah’s New Orleans Casino. This lawsuit followed.
It was summer 2017, the weekend of Essence Festival. 1 Shanta
Duncan had travelled to New Orleans to attend. On her first night

1

Essence Festival is an annual weekend-long festival
celebrating African-American music and culture; it was established
in New Orleans twenty-five years ago and regularly draws 500,000plus attendees.
1

in town, she visited Harrah’s Casino, hoping to catch a late-night
concert at the Masquerade Nightclub. She was alone. Christopher
Celestine was working security that night; it was his job to check
identification and “engage” with patrons. He spotted Duncan in the
tunnel

entrance

and

struck

up

a

conversation.

He

and

Duncan

disagree about what happened next.
According

to

Duncan,

Celestine

offered

her

free

concert

tickets and asked her to step aside. She obliged. Now alone,
Celestine asked Duncan “what [she] got on up under that dress,”
pulled her dress to the side, and placed his hand on her vagina.
Duncan recoiled. Celestine responded that he “just want[ed] to see
what was up under [Duncan’s] dress.” Duncan left the casino but
returned several hours later, hoping to obtain Celestine’s name.
She was unsuccessful: Celestine had flipped his nametag so that
his name was not visible.
Celestine tells a different story. He says he engaged Duncan
in polite small talk, and he denies touching her vagina. He says
he was “just making jokes” about her attire. Although surveillance
footage shows his hand moving near Duncan’s vagina, Celestine
insists he was merely demonstrating how her dress came close to
flunking the casino’s dress code.
The rest is undisputed. The day after the alleged incident,
Duncan returned to the casino to file a report. She spoke with the
casino’s Director of Security, Stacey Dorsey, and gave a written
2

statement. She filed a police report a few days later. Based on
the report, the New Orleans Police Department Sex Crimes Unit
issued a warrant for Celestine’s arrest. 2
Jazz Casino Company owns Harrah’s New Orleans Casino. It has
twice hired and fired Celestine. It first hired him in August 2015,
following a panel interview and a background check confirming he
had no criminal record. It fired him nine months later, citing his
“appearance of sleeping while on duty.” The termination provided,
however, that Celestine was “eligible for re-hire” at any time.
In May 2017, Jazz Casino Company re-hired Celestine as a
security officer. It performed another background check, which
again reflected that Celestine had no criminal record. The alleged
assault and battery occurred two months later, on July 3, 2017,
and Celestine’s final day of work was the next day. Celestine was
suspended and, in September 2017, fired.
Before

the

alleged

information

indicating

misconduct:

He

had

no

incident,
that

Jazz

Celestine

criminal

Casino
was

record;

he

Company

prone
had

to

lacked
sexual

never

been

disciplined by any prior employer; and he had never been accused
of sexual misconduct. To the contrary, he was a middle-aged single
father of two children, ages eleven and ten. Jazz Casino had even
provided him some sexual harassment training. But Celestine’s

2

The parties fail to explain the status of the criminal
prosecution.
3

supervisors noticed some unusual behavior on the day of the
incident: He spent an "inordinate amount of time fraternizing”
and, at “a couple of points,” appeared to swap phone numbers with
patrons.
Invoking

the

Court’s

Celestine,

Jazz

Management

Company. 3

emotional

Casino

distress,

diversity
Company,

She

jurisdiction,
and

alleges

assault,

and

Harrah’s

negligent
battery

Duncan
New

Orleans

infliction
claims

sued

of

against

Celestine. She says Jazz Casino Company and Harrah’s New Orleans
Management Company are vicariously liable for Celestine’s torts
and primarily liable for negligently hiring, supervising, and
training him.
Now, Jazz Casino Company and Harrah’s New Orleans Management
Company

move

for

summary

judgment

that

they

are

neither

vicariously nor primarily liable in connection with Celestine’s
alleged assault and battery. Duncan opposes.
I.
Summary judgment is proper if the record discloses no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a). A dispute is
“genuine” if “the evidence is such that a reasonable jury could

3

Celestine did not answer Duncan’s complaint, and the Clerk
of Court entered a default against him on November 9, 2018.
4

return a verdict for the non-moving party.” Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if it “might
affect the outcome of the suit.” Id. at 248.
If the non-movant will bear the burden of proof at trial,
“the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” In re La. Crawfish Producers, 852 F.3d 456, 462
(5th Cir. 2017) (citation omitted).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion. See Anderson, 477 U.S. at 248. Nor do “[u]nsubstantiated
assertions, improbable inferences, and unsupported speculation[.]”
Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003).
Ultimately, to avoid summary judgment, the non-movant “must go
beyond

the

pleadings

and

come

forward

with

specific

facts

indicating a genuine issue for trial.” LeMaire v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
In deciding whether a fact issue exists, the Court views the
facts

and

draws

all

reasonable

inferences

in

the

light

most

favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of
Franklin, 886 F.3d 507, 513 (5th Cir. 2018). The Court “resolve[s]
factual controversies in favor of the nonmoving party,” but “only
where there is an actual controversy, that is, when both parties
5

have submitted evidence of contradictory facts.” Antoine v. First
Student,

Inc.,

713

F.3d

824,

830

(5th

Cir.

2013)

(citation

omitted).
II.
Jurisdiction is based on diversity, so the Court applies
Louisiana substantive law. See Boyett v. Redland Ins. Co., 741
F.3d 604, 607 (5th Cir. 2014) (citing Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938)). Because Louisiana choice-of-law rules are
substantive, the Court applies them here. See Weber v. PACT XPP
Tech., AG, 811 F.3d 758, 770 (5th Cir. 2016) (citing Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941)). The first
step under Louisiana choice-of-law rules is determining whether
the laws of two or more states conflict. Lonzo v. Lonzo, 17-0549,
p. 12 (La. App. 4 Cir. 11/15/17); 231 So. 3d 957, 966. If they do
not, the Court applies forum law. See Am. Elec. Power Co. v.
Affiliated FM Ins. Co., 556 F.3d 282, 285 n.2 (5th Cir. 2009). The
parties have not identified a conflict, and the Court has not found
one. Accordingly, the Court applies Louisiana substantive law.
III.
Jazz

Casino

Company

and

Harrah’s

New

Orleans

Management

Company contend that Duncan lacks evidence sufficient to hold them
vicariously liable for Celestine’s alleged assault and battery.

6

A.
The source of vicarious liability in Louisiana, Civil Code
Article

2320,

answerable

for

instructs
the

that

damage

“[m]asters

occasioned

by

and
their

employers

are

servants

and

overseers, in the exercise of the functions in which they are
employed.” LA. CIV. CODE art. 2320. For example, “an employer is
liable for a tort committed by his employee if, at the time, the
employee was acting within the course and scope of his employment.”
Baumeister v. Plunkett, 95-2270, p. 2 (La. 5/21/96); 673 So. 2d
994, 996.
The “course” of employment refers to time and place, and the
“scope” of employment “examines the employment-related risk of
injury.” Richard v. Hall, 03-1488, p. 6 (La. 4/23/04); 874 So. 2d
131, 138. The “employment-related risk of injury increases with
the amount of authority and freedom” granted to the employee in
the performance of his tasks. Id. at 138. Whether an employee’s
conduct is sufficiently employment-related to impose vicarious
liability is a mixed question of law and fact. Russell v. Noullet,
98-816, p. 5 (La. 12/1/98); 721 So. 2d 868, 871.
Vicarious liability extends to intentional torts. Benoit v.
Capitol Mfg. Co., 617 So. 2d 477, 479 (La. 1993) (citing Jones v.
Thomas, 426 So. 2d 609 (La. 1983)). In determining whether an
employer is vicariously liable for an employee’s intentional tort,
7

courts consider four factors: “(1) whether the tortious act was
primarily

employment

rooted;

(2)

whether

the

violence

was

reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and (4)
whether it occurred during the hours of employment.” Baumeister,
673 So. 2d at 996-97 (citing LeBrane v. Lewis, 292 So. 2d 216, 218
(La. 1974)). Although a plaintiff need not establish all four
LeBrane factors, “[a]n employer is not vicariously liable merely
because [its] employee commits an intentional tort on the business
premises during working hours.” Baumeister, 673 So. 2d at 996-97.
B.
Jazz Casino Company says it is entitled to summary judgment
on

Duncan’s

vicarious

liability

claim

because

Duncan

cannot

establish LeBrane factors one and two. 4 The Court disagrees.
1.
Factor one requires Duncan to show that Celestine’s alleged
misconduct was “primarily employment rooted.” LeBrane, 292 So. 2d
at 218. Jazz Casino Company submits that Duncan cannot make that
showing because Celestine’s alleged misconduct “did not further
the business” of the casino and was, in fact, “entirely extraneous”
to the casino’s interests. Duncan rejoins that she can, emphasizing

4

It is undisputed that LeBrane factors three and four are
met: Celestine’s alleged misconduct occurred on casino premises
during work hours. See Baumeister, 673 So. 2d at 997.
8

that

the

alleged

misconduct

occurred

while

Celestine

was

performing his duties —— checking identification and “engaging”
with patrons.
As

the

“employment

parties
rooted.”

acknowledge,
See,

e.g.,

even
Edmond

sexual
v.

acts

Pathfinder

can

be

Energy

Servs., Inc., 11-151, pp. 8-9 (La. App. 3 Cir. 9/21/11); 73 So. 3d
424, 428-29. Consider Baumeister. See 673 So. 2d 994. At issue
there was a hospital’s vicarious liability for a sexual battery a
supervisor committed against a co-worker during work hours on the
hospital’s premises. Id. The Louisiana Supreme Court held that the
hospital was not vicariously liable. Id. at 1000. The sexual
battery was not “employment rooted,” the court reasoned, because
the supervisor did not order the victim-plaintiff into the lounge,
threaten her with the loss of her job if she did not respond to
his advances, or otherwise exercise his supervisory authority in
connection with the battery. Id. at 999-1000. Critically, the court
rejected a rule that regards all sexual misconduct as extraneous
to employment. Id. at 1000 (“We do not mean to state, however,
that all sexual acts are of a personal nature and might not
sometimes be employment rooted.”).
That rejection is merely an application of the general rule
for mixed-motive cases:
The fact that the predominant motive of the servant is
to benefit himself or a third person does not prevent
the act from being within the scope of employment. If
9

the purpose of serving the master’s business actuates
the servant to any appreciable extent, the master is
subject to liability if the act is otherwise within the
service.
Ermert v. Hartford Ins. Co., 559 So. 2d 467, 476-77 (La. 1990);
see also RESTATEMENT (SECOND)

OF

AGENCY § 236 (“Conduct may be within

the scope of employment, although done in part to serve the
purposes of the servant[.]”).
Application of that rule to this muddled summary judgment
record yields no clear result. Factual disputes abound. To be sure,
the nature of the alleged act —— a sex crime —— suggests that it
was

“actuated”

by

Celestine’s

allegedly

prurient

interest

in

Duncan, not by serving Jazz Casino Company’s interests. 5 So too
does Duncan’s testimony. She says Celestine had already checked
her identification, thus concluding his “service” of Jazz Casino
Company’s interests, when he asked her to step aside for the
private conversation that presaged the assault.
But Celestine’s testimony supports another conclusion. He
denies touching Duncan’s vagina, and he says his duties included
“engaging” with patrons. 6 According to him, Jazz Casino Company

5

It is doubtful that an employee’s commission of a sex crime
against a patron could ever serve the (lawful) business interests
of his employer. See RESTATEMENT (SECOND) OF AGENCY § 235 cmt. c. (“The
fact that an act is done in an outrageous or abnormal manner has
value in indicating that the servant is not actuated by an intent
to perform the employer’s business.”).
6

Of course, a jury could find that Celestine’s private
conversation went well beyond service-industry chit-chat; if
Celestine’s deposition testimony is discounted, the conversation
10

instructs its security guards to make small talk and, at the time
of the alleged assault and battery, he was merely acting in
accordance with that instruction. This testimony creates genuine
disputes of material fact on: (1) the scope of Celestine’s duties;
(2) whether Celestine touched Duncan inappropriately; and (3) if
Celestine did touch Duncan inappropriately, whether the touching
was sufficiently “employment rooted” to satisfy LeBrane factor
one. See Garcia v. Lewis, 50,744, pp. 11-12 (La. App. 2 Cir.
6/22/16); 197 So. 3d 738, 743-44; Edmond, 73 So. 3d at 428-29.
2.
Factor two requires Duncan to show that Celestine’s alleged
misconduct was “reasonably incidental” to his performance of his
duties as a security guard. LeBrane, 292 So. 2d at 218. Jazz Casino
Company says Duncan cannot make that showing because Celestine’s
duties did not include sexual contact with patrons. Duncan counters
that she can, underscoring that the assault and battery occurred
as

Celestine

“engaged”

with

patrons

and

checked

their

identification.
An employee’s misconduct can be “reasonably incidental” to
his duties, even if “totally unauthorized by the employer and

began with an offer of concert tickets and ended with a statement
of purpose: “I’m trying to see what you got on up under that
dress.” That, a jury could find, is not the polite “engagement”
that was among Celestine’s duties —— it is sexual misconduct
antithetical to them. These fact issues are of course material and
disputed for Rule 56 purposes.
11

motivated by the employee’s personal interest.” Samuels v. S.
Baptist Hosp., 594 So. 2d 571, 574 (La. Ct. App. 4th Cir. 1992).
This principle applies with particular force when the employee
exercises authority over his victim. See, e.g., Edmond, 73 So. 3d
at 425 (employee – supervisor); Samuels, 594 So. 2d at 574 (nursing
assistant – patient); Applewhite v. City of Baton Rouge, 380 So.
2d 119 (La. Ct. App. 1st Cir. 1979) (police officer – citizen).
Celestine’s duties at the time of the alleged assault and
battery are disputed. 7 As is his conduct. If the Court resolves
those disputes in Duncan’s favor, as it must on summary judgment,
Celestine’s duties included: checking identification, engaging
with patrons, and maintaining order; his conduct included: making
small talk in furtherance of Jazz Casino Company’s interests and,
during that small talk, touching Duncan’s vagina. The risk that a
security guard like Celestine might inappropriately touch a patron
while checking identification, “engaging,” or maintaining order is
“fairly attributable” to Jazz Casino Company’s gaming business.
Baumeister, 673 So. 2d at 999.
Because the record discloses genuine disputes of material
fact bearing on LeBrane factors one and two, Jazz Casino Company

7

The parties dispute the facts that speak to Celestine’s
authority; accordingly, on this record, the Court cannot determine
the “employment-related risk of injury.” Richard, 874 So. 2d at
138.
12

is not entitled to summary judgment on Duncan’s vicarious liability
claim. See Edmond, 73 So. 3d at 429.
C.
Harrah’s New Orleans Management Company contends that it
cannot have vicarious liability for Celestine’s alleged torts
because Celestine was not its “servant” under Civil Code Article
2320. The Court agrees.
A “servant” includes “anyone who performs continuous service
for another and whose physical movements are subject to the control
or right to control of the other as to the manner of performing
the service.” Ermert, 559 So. 2d at 476.
It is undisputed that Harrah’s New Orleans Management Company
never employed Celestine. And no facts in the record support a
finding that Celestine “perform[ed] continuous service” for the
company or was “subject to” its “control.” Ermert, 559 So. 2d 476.
So, Celestine was not Harrah’s New Orleans Management Company’s
“servant.” See LA. CIV. CODE art. 2320. Because Celestine was not
Harrah’s New Orleans Management Company’s “servant,” the company
is not vicariously liable for his alleged torts. See, e.g., Doe v.
McKesson, 935 F.3d 253, 260 (5th Cir. 2019).
The record discloses no genuine dispute as to any material
fact regarding Harrah’s New Orleans Management Company’s vicarious
liability for Celestine’s alleged torts. Harrah’s New Orleans

13

Management Company is entitled to judgment on Duncan’s vicarious
liability claim as a matter of law. The Court therefore grants the
motion for summary judgment as to Duncan’s vicarious liability
claim against Harrah’s New Orleans Management Company. 8
IV.
Jazz

Casino

Company

and

Harrah’s

New

Orleans

Management

Company next contend that Duncan lacks evidence sufficient to hold
them

directly

liable

for

negligently

hiring,

training,

and

supervising Celestine. The Court agrees.
A.
The familiar duty/risk analysis governs claims of negligent
hiring, training, and supervision. Jackson v. Ferrand, 94-1254,
pp. 11-12 (La. App. 4 Cir. 12/28/94); 658 So. 2d 691, 698. Under
that analysis, a plaintiff must prove five elements: (1) duty; (2)
breach; (3) cause-in-fact; (4) scope of liability or scope of
protection; and (5) damages. Lemann v. Essen Lane Daiquiris, Inc.,
05-1095, p. 7 (La. 3/10/06); 923 So. 2d 627, 633. The duty element
presents a question of law; the other elements present questions
of fact. Fowler v. Roberts, 556 So. 2d 1, 4-5 (La. 1989).

8

Harrah’s New Orleans Management Company is entitled to
summary judgment on another ground: Duncan abandoned her vicarious
liability claim against the company when she failed to brief it in
opposition to the motion for summary judgment. See Blackwell v.
Laque, 275 F. App’x 363, 366 n.3 (5th Cir. 2008) (per curiam).
14

An employer has a duty to exercise reasonable care in hiring,
training, and supervising its employees. Roberts v. Benoit, 605
So. 2d 1032, 1041 (La. 1992); see also Kelley v. Dyson, 08-1202,
p. 7 (La. App. 5 Cir. 3/24/09); 10 So. 3d 283, 287 (“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.”).
B.
Jazz Casino Company exercised reasonable care in hiring,
training, and supervising Celestine. See Roberts, 605 So. 2d at
1041. It hired Celestine following a criminal background check and
a panel interview. It trained Celestine in sexual harassment, and
Celestine

knew

that

casino

policy

prohibited

assaulting

or

battering patrons.
In an effort to impute to Jazz Casino Company knowledge of
Celestine’s

alleged

propensity

for

sexual

misconduct,

Duncan

points to “other instances” where Celestine “fraternized” with
guests

for

an

“inordinate”

amount

of

time.

But

these

“other

instances” occurred on the same day as the alleged assault and
battery; they do not support a material disputed fact that Jazz
Casino knew or should have known that Celestine would commit sexual
misconduct.

15

Unable

to

show

ordinary

negligence,

Duncan

invokes

two

statutes to support imposing a heightened duty on Jazz Casino
Company. See 34 U.S.C. § 41106; LA. REV. STAT. § 37:3276. Neither
applies. The first, 34 U.S.C. § 41106, authorizes certain employers
to conduct criminal history record searches of potential employees
through a state entity designated by the Attorney General of the
United States. It imposes no duty —— heightened or otherwise —— on
Jazz Casino Company. The second, LA. REV. STAT. § 37:3276, is an
occupational licensing law. It sets standards for licensure by the
Louisiana State Board of Private Security Examiners of security
guards employed by private contract security companies. Id. But it
does not apply to businesses that employ “persons who do private
security work in connection with the affairs of such employer only
and

who

have

an

employer-employee

relationship

with

such

employer.” LA. REV. STAT. § 3298(A). Because Jazz Casino Company is
such a business, Duncan’s contention misses the mark.
The record discloses no genuine dispute as to any material
fact regarding Harrah’s New Orleans Management Company and Jazz
Casino Company’s negligence in hiring, supervising, or training
Celestine. Harrah’s New Orleans Management Company and Jazz Casino
Company are entitled to judgment on Duncan’s negligence claims as
a matter of law. The Court therefore grants the motion for summary
judgment as to Duncan’s negligence claims against Harrah’s New
Orleans Management Company and Jazz Casino Company.
16

V.
Accordingly, IT IS ORDERED: that Jazz Casino Company and
Harrah’s

New

Orleans

Management

Company’s

motion

for

summary

judgment is GRANTED, in part, as to all claims against Harrah’s
New Orleans Management Company and the direct negligence claims
against Jazz Casino Company, and DENIED, in part, as to the
vicarious liability claim against Jazz Casino Company.

New Orleans, Louisiana, October 9, 2019

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

17