Brown v. ICF International

Filing 115

RULING GRANTING 67 Defts MOTION for Summary Judgment on all claims. Defts request for attorney's fees related to the whistleblower claim is DENIED. Signed by Judge James J. Brady on 11/14/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ZELIA E. BROWN

CIVIL ACTION

VERSUS
NO. 07-931-JJB-SCR
ICF INTERNATIONAL, D/B/A
ICF INCORPORATED, LLC
OF LOUSIANA

RULING ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment (doc.
67) under Rule 56 of the Federal Rules of Civil Procedure.

Parties have

numerous briefs on the matter. Chief Judge Tyson heard oral argument on the
motion.1 This Court’s jurisdiction exists pursuant to 28 U.S.C. § 1332. For the
reasons stated herein, Defendant’s motion is GRANTED. Defendant’s request
for attorney’s fees is DENIED.
Background
While much of the specifics of the events are disputed, the Court has
pieced together the following narrative from the various pleadings: Plaintiff was
hired by ICF as a Program Quality Specialist in October, 2006, after a telephone
interview. ICF had been hired by the State of Louisiana to manage the Road
Home Program to assist victims of Hurricanes Katrina and Rita. Her first day of
work included a board meeting in Baton Rouge (a meeting ICF says was also a
follow-up interview), Plaintiff alleges she was the only African-American person
1

This case was transferred to this Court after Chief Judge Tyson’s death.

present and that one of her new supervisors, Vanessa Brower, made remarks to
her that she deemed to be racial in nature.2 Also at the meeting, Plaintiff alleges
the board members made disparaging statements about New Orleans residents,
statements she interpreted to be racially based.

Plaintiff claims from the

beginning of her employment through March 2007, she was sexually harassed by
one of her fellow employees, W.B. Mitchell (an African-American male who may
or may not have served as her supervisor at times). Incidents included staring at
her for an extended period of time and telling her he wanted to take her to Baskin
Robbins so he could “lick her all over,” which she took to be a sexual proposition.
She reported this incident to senior management on March 17, 2007.
As agreed upon her hiring, Plaintiff was relocated to the New Orleans
office in January, 2007. Mitchell was also relocated there. That month, Plaintiff
had conversations with two of her supervisors, Bob Santucci and Daniel Holland,
and came away from the conversations feeling the Baton Rouge members of ICF
did not like her. After this, Holland, an African-American male, began telling
other employees she was to be avoided and not to follow her instructions. She
was excluded from at least two meetings she had been used to attending.
Plaintiff alleges these actions effectively prevented her from doing her job. She
sent an email outlining her complaints on February 19, 2007 to Brower, Holland,
and human resources. She also reported numerous irregularities with the
2

Among the remarks: Brower said Plaintiff did not look like she “expected” and that if she had not moved
to Houston from New Orleans, she would not “sound like she sounds” and would not “dress like she
does.”

2

program, such as discriminatory housing, nepotism, and non-compliance with
HUD regulations, as was part of her job.
During this time, Mitchell continued to harass her, primarily by following
behind her singing a song, “I’m not Lisa,” which is Plaintiff’s nickname.

She

reported this behavior to Brower on March 17, 2009. This was the first time she
reported this behavior. On March 19, Brower contacted human resources about
the situation. Human resources conducted an investigation, the extensiveness of
which is disputed. No disciplinary action was taken as a result. On March 27,
after Mitchell made offensive remarks in a meeting about people from New
Orleans (calling them stupid and dumb), Plaintiff complained to Brower. During a
meeting with him about this, Mitchell left the company.3 Sometime near the end
of March, 2007, a Mr. Rodriguez took over as Compliance Manager, making him
Plaintiff’s manager. Plaintiff missed several days of work in late March and April,
although the specifics are disputed.
On April 2, 2007, Plaintiff met with the director of human resources to
complain about Mitchell’s behavior, Brower’s lack of communication, and
Holland’s telling others not to speak to her and how all of this affected her ability
to do her job.
On April 5, Plaintiff filed a Charge of Discrimination with the EEOC. The
EEOC sent ICF a Notice of Charge on April 10.

3

ICF claims Mitchell resigned during this meeting; Ms. Brown claims this is an issue of dispute, as in his
deposition Mitchell says only his departure was a “mutual agreement.” (Doc. 83-4 at 15).

3

Also in April, Plaintiff drafted a “Timeline and Synopsis of the Small Rental
Program” detailing alleged mismanagement and her claims of harassment,
discrimination and retaliation. She emailed this document to Senators David
Vitter, Mary Landrieu, then-Congressman Bobby Jindal, and the Reverend Jesse
Jackson and his Rainbow/PUSH Coalition. She did not tell anyone at ICF about
sending these emails. Although she continued to receive work assignments from
Rodriguez in April and May of 2007, Plaintiff contends the assignments given
were clerical in nature and that her job duties were changed to require her to
provide support to the other team members. Specifically, she contends she was
told to make copies while other team members read the paper.
On May 10, Rodriguez, Plaintiff, and a human resources staffer met to
discuss Plaintiff’s performance and insubordination (Plaintiff disputes this). On
May 30 Rodriguez, who had been transferred to another position, emailed
Plaintiff with an attachment containing the names, addresses, and social security
numbers of various Road Home applicants.

This material was considered

“Personally Identifiable Information” (“PII”) and was to be kept confidential per
ICF’s Code of Ethics, which Plaintiff had been given a copy. Plaintiff contends
there were no social security numbers included in the email attachment.
During the summer of 2007, Plaintiff came into possession of a 600-page
document she thought was an invoice from ICF to the State of Louisiana. In July,
Plaintiff met with the Orleans Parish District Attorney about possible fraud within
the Road Home Program and gave him a copy of the document. The district
4

attorney then forwarded the allegations to the FBI and the Louisiana Legislative
Auditor. Plaintiff claims she told ICF she was taking these actions; ICF claims
she did not. No charges were filed as a result.
On September 7, 2007, ICF discovered Plaintiff had sent the May 30 email
containing the PII to her sister. After an investigation, Plaintiff was either placed
on administrative leave or terminated on September 12.

She was officially

terminated on September 18.
On November 15, 2007, Plaintiff filed this suit in the 19th Judicial District
Court seeking damages for alleged racial and gender discrimination and
harassment, retaliation, and reprisal for her whistle-blowing activities. (Doc. 1-1).
Defendants removed to this Court.

Summary of the Arguments
In its motion, ICF contends first that some of Plaintiff’s claims are timebarred and that she failed to satisfy her pre-litigation notice requirements under
the Louisiana Employment Discrimination Law (“LEDL”). Plaintiff counters that
timely filing an EEOC charge and receiving a right to sue notice suspends
prescription on her claims and that she has satisfied all pre-litigation notice
requirements.
Second, ICF asserts Plaintiff’s discrimination claims fail as a matter of law
to the extent they are not based on ultimate employment actions and that Plaintiff
cannot meet her burden in showing her termination was due to discrimination.
5

Plaintiff contends a reassignment of duties can constitute an adverse
employment action. As to her termination, Plaintiff claims there is a genuine
dispute as to whether ICF had actually discovered the email to her sister before
firing her or not. She also claims she can prove racial animus was involved in her
termination.
Third, Defendant claims Plaintiff’s harassment claims fail as a matter of
law. ICF asserts Plaintiff has no evidence that any remarks or actions by Mr.
Santucci, Ms. Brower, or Mr. Mitchell, with the exception of the “lick you all over”
comment, were based on her race and/or gender.4 Further, she cannot establish
that the behavior was both objectively and subjectively severe or perverse such
as to alter a term, condition, or privilege of her employment. Even if she could
show these things, ICF contends they took prompt remedial action and Plaintiff
unreasonably failed to take advantage of corrective opportunities provided by
ICF. Plaintiff counters that evidence of harassment must be made on a totality of
the circumstances and is not appropriate for summary judgment. Further, she
argues there is evidence to show she did follow the proper protocol in reporting
the harassment and that ICF should not be allowed to assert the affirmative
defense it took remedial action—and that if it is allowed to, summary judgment on
this ground would be inappropriate.

4

With one exception: Defendant concedes that Mr. Mitchell’s “lick you all over” comment was likely
motivated by Plaintiff’s gender.

6

Fourth, Defendant claims Plaintiff’s Title VII retaliation claims fail as a
matter of law in that she cannot establish a prima facie case and that, even if she
could, she cannot prove ICF’s legitimate, non-retaliatory reasons are a pretext for
retaliation. Plaintiff counters she has established a prima facie case and that
Defendant has not shown a legitimate, non-retaliatory reason for her termination.
Fifth, Defendant contends Plaintiff cannot establish any of the four
elements necessary to prevail as a whistleblower. Plaintiff avers she has
established enough evidence to move to trial on the issue.
Finally, Defendant claims Plaintiff’s claims for intentional infliction of
emotional distress and abuse of rights under Louisiana Civil Code article 2315 as
they are pre-empted by more specific statutory remedies. In the event Plaintiff is
allowed to bring them, Defendant argues Plaintiff cannot establish the elements
of intentional infliction and the abuse of rights doctrine is only implicated where a
property or contractual interest is affected, which Plaintiff does not allege.
Plaintiff contends that an employer’s continued inaction can give rise to an
intentional infliction claim and that it is for the trier of fact to decide the nature of
the conduct and damages involved. Plaintiff also argues she has established the
elements for an abuse of rights claim.
Standard of Review
A motion for summary judgment should be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine dispute as to any material fact and that
7

the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(a).

If the dispositive issue is one on which the nonmovant will bear the

burden of proof at trial, the moving party satisfies its burden by pointing out that
there is insufficient proof concerning an essential element of the nonmovant’s
claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party
meets the initial burden of showing there is no genuine dispute as to material
fact, the burden shifts to the nonmoving party to produce evidence or designate
specific facts showing the existence of a genuine dispute for trial. Allen v.
Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000). Doubts are to be
resolved in favor of the nonmoving party, and any reasonable inferences are to
be drawn in favor of that party. Evans v. City of Bishop, 238 F.3d 586, 589 (5th
Cir. 2000). The Court notes that on two occasions the magistrate judge has
sanctioned Plaintiff for discovery violations. First, for failing to produce a tape
recording of a meeting with George Rodriguez and Renee Brinkhaus, the
magistrate judge prohibited Plaintiff from “supporting any of her claims to the
extent they are based on the actions, treatment/mistreatment or statements by
George Rodriguez.” (Doc. 66). Second, for failing to comply with a discovery
order

requiring

a

streamlined

and

responsive

answer

to

Defendant’s

Interrogatory No. 4, the magistrate judge prohibited Plaintiff from using any
statements made in her April 17 amended answer, with specific exceptions noted
in the ruling. (Doc. 101). The Court will note when these rulings apply to the
evidence throughout this Ruling.
8

Discussion
A) Plaintiff’s Discrimination Claims
In order to succeed on a claim of race or gender discrimination, Plaintiff
must establish that she was: 1) a member of a protected class, 2) qualified for
the position at issue, 3) was discharged or suffered some adverse employment
action, and 4) treated less favorably than similarly situated individuals who were
not members of her protected class. McCoy v. City of Shreveport, 492 F.3d 55667 (5th Cir. 2007). If she makes this showing, the burden shifts to the Defendant
to show a legitimate, non-discriminatory reason for the action. Id. at 557. This is
a burden of production, not persuasion, and does not involve credibility
assessment. Id. If Defendant does this, the burden will shift back to Plaintiff to
show this reason is merely a pretext for a discriminatory or retaliatory purpose.
Id.

To carry this burden, Plaintiff must rebut the legitimate reason given by

Defendant. Id. Defendant contends all but one of Plaintiff’s allegations of
discrimination fail because they do not arise to an adverse employment action.
As for her termination, Defendant claims she cannot show it was a pretext for a
discriminatory purpose. The Court agrees with Defendant.
It is well-settled in the Fifth Circuit that, in order to rise to the level of an
adverse employment action, an action must amount to an ultimate employment
decision such as hiring, granting leave, discharging, promoting or compensating.
Id. at 559. Plaintiff points out that a discriminatory reassignment may constitute
an adverse employment action when it involves a “major change in
9

compensation, duties, or responsibilities.” Fuentes v. Postmaster Gen. of the
United States Postal Serv., 282 Fed. Appx. 296, 301 (5th Cir. 2008). A transfer
can be a demotion” if the new position proves objectively worse -- such as being
less prestigious or less interesting or providing less room for advancement.”
Forsyth v. City of Dallas, 91 F.3d 769 (5th Cir. 1996). The Court notes that the
Forsyth Court also made clear that “a plaintiff’s subjective perception that a
demotion has occurred is not enough.” Id. at 774.
The Court finds that Plaintiff was not transferred or reassigned from her
position.

Her salary and title did not change.

And while her duties were

modified, the Court finds that under the circumstances surrounding the Road
Home Program—just as with any startup—this is to be expected.

Further,

Plaintiff has not shown how any alleged new position was objectively worse: the
only thing that changed was the assignments she was given. This does not rise
to the level of an adverse employment action. Washington v. Veneman, 109
Fed. Appx. 685, 689 (5th Cir. 2004).

As for her being stripped of managerial

duties, the Court finds she was not hired to manage people. When asked at her
deposition whether she was hired to supervise people, Plaintiff answered she
“was hired to monitor the advisors . . . and the monitor the processes at that
particular office.” (Doc. 93-1 at 5). Monitoring is not supervising. Plaintiff admits
as much in the next exchange: “Q: All right, there’s a difference between
monitoring the processes and monitoring or supervising the people, in other
words, being somebody’s boss. Were you the boss of the [advisors]? A: I was
10

not the boss, but I had to monitor their work.” (Doc. 93-2 at 7). She was not
managing people, so there were no managerial duties for her to have had
stripped.
As for her termination, which was an adverse employment action, Plaintiff
has not met her burden of showing ICF’s nondiscriminatory reason is merely
pretext for a discriminatory purpose. Plaintiff claims she was initially terminated
for an email to her father, not the email to her sister that contained the PII. She
asserts ICF’s claims to the contrary show they concocted this story about the
email to her sister after the fact to justify her termination.
contradicts this account.

Her deposition

In her termination meeting with Mr. Tighe and his

associates, it is clear from her deposition that he asked about the email to her
sister: “Q. Did he ask you if you had sent this [email to her sister]? A. He did.”
(Doc. 93-2 at 6). This clearly shows ICF was aware of the email at the time of
her termination and thus Plaintiff’s argument that there is a genuine dispute as to
ICF’s nondiscriminatory reason for firing her falls short.
The Court further finds there is no genuine dispute about pretext under the
mixed-motive theory, which allows for a finding of pretext even when the
defendant’s nondiscriminatory reason is true if the reason “is only one of the
reasons for its conduct and another motivating factor is the plaintiff’s protected
characteristic.” Carthon v. Johnson Controls, Inc., 100 Fed. Appx. 993 (5th Cir.
2004). Plaintiff contends her race or gender was such a factor. As evidence,
she points to the posting of her picture in the lobby of the building and her
11

supervisor Mr. Santucci’s reasons for recommending termination.

As to the

former, Plaintiff presents evidence that it was not regular practice to post
terminated employees’ pictures in the lobby. While the Court is skeptical this is
relevant, as it occurred after she was terminated, Plaintiff does not present
evidence that she was treated differently from similarly situated employees,
specifically that ICF posted the pictures only of women or African Americans
once terminated. As for Mr. Santucci’s recommendation, it was based on three
things: a poor evaluation by a co-worker, complaints by white co-workers who
were upset at Plaintiff’s criticisms of the program, and Plaintiff’s departure during
a meeting and subsequent multi-day absence.

(See Doc. 83-22 at 86-116).

Plaintiff has not shown any connection between this and her race or gender.
The Court finds there is no genuine dispute as to material fact regarding
Plaintiff’s discrimination claims and that Defendant is entitled to judgment as a
matter of law. Therefore, summary judgment on these claims is granted.

B) Plaintiff’s Harassment Claims
To establish a claim for harassment, Plaintiff must show: 1) she belongs to
a protected group; 2) she was subjected to unwelcome harassment; 3) the
harassment was based on her gender or race; and 4) the harassment was
sufficiently severe or pervasive to have affected a term, condition, or privilege of
employment; 5) if the harasser is a co-worker, the plaintiff must show the
employer knew or should have known of the harassment and failed to stop it.
12

Celestine v. Petroleos de Venz. SA, 266 F.3d 343, 353 (5th Cir. 2001). If the
harasser is a supervisor, Plaintiff only need establish the first four elements. If
she does, Defendant will be vicariously liable unless it can establish 1) that it
exercised reasonable care to prevent and correct promptly any harassing
behavior and 2) that Plaintiff unreasonably failed to take advantage of any
preventive or corrective opportunities presented by Defendant or to avoid harm
otherwise. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). To affect
a term, condition, or privilege of employment, it must be severe or pervasive
enough to create an abusive working environment. Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986). The “mere utterance of an . . . epithet which
engenders offensive feelings in an employee does not sufficiently affect the
conditions of employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
The Supreme Court has held that a hostile work environment is determined by
looking at “all the circumstances, including the frequency of the discriminatory
conduct, its severity; whether it unnecessarily interferes with an employee’s work
performance.” National Passenger Railroad Corporation v. Morgan, 536 U.S.
101 (2002). The Court finds Plaintiff cannot meet her burden for either racial or
sexual harassment.
1) Racial Harassment
Plaintiff alleges Ms. Brower, Mr. Santucci, and Mr. Rodriguez engaged in
the following acts of race-based harassment:
1. Making a comment that she spoke differently (Santucci);
13

2. Making a comment that individuals like her don’t drive cars like she has;
3. Making a comment that she did not look like [Brower] expected, nor did
she sound like she sounds;
4. Instructing staff members not to follow her directions and to avoid her;
5. Excluding her from meetings;
6. Reassigning her to different duties, stripping her of managerial duties
and giving her job duties to white co-workers;
7. Assigning her a redundant work project;
8. Giving her only two hours to complete a project it took twelve people to
complete.
9. Threatening to reprimand her for unsubstantiated reasons;
10. Posting her picture at the security desk after her termination, which
had not been done for any white employee.

This occurred over the course of her employment, just less than one year.
When looking at the totality of the circumstances, the Court finds the above
instances, while they engendered offensive feelings in the Plaintiff, were not
sufficiently severe or pervasive such as to alter a term, condition, or privilege of
employment.

Only the first three on the list above have any tinge of racial

harassment, and the Court finds these fall far short of the requirements of
harassment. The only case Plaintiff cites on this topic includes racial epithets
that are far more severe and pervasive than what she alleges. Charles v. Jet
Blue Airways Corp., 2009 U.S. Dist. LEXIS 13341 (E.D.LA 2000).

Overall,

though Plaintiff seems to have had difficulty while working at ICF, she does not
present evidence to support her claims that any harassment was based on her
race and that, if it was, it was severe or pervasive such as to alter a term,
condition, or privilege of her employment.

14

As there is no genuine dispute as to this material fact, summary judgment
is granted.
2) Sexual Harassment
Plaintiff alleges the following instances of sexual harassment, all at the
hands of Mr. Mitchell:
1. Asking her out to dinner while ICF employees were staying at a hotel in
December, 2006;
2. Staring at her for an extended period of time through her office window;
3. Singing a song “I’m not Lisa” while walking behind her;
4. Telling her she looked good enough to eat;
5. Telling her he wanted to take her to Baskin Robbins so he could lick her
all over.
Defendant argues only the last two were made because of her gender. The
Court finds a reasonable jury could find that Mr. Mitchell’s comments and actions
were based on Plaintiff’s race. However, because Plaintiff cannot show these
actions were severe and pervasive enough to affect a term, condition, or privilege
of employment, this claim must fall.
While the Court sympathizes with Plaintiff for the boorish behavior of Mr.
Mitchell, the case law of this circuit is clear that merely boorish behavior does not
rise to the level of severe or pervasive. See Hockman v. Westward Commc’ns,
LLC, 407 F.3d 317, 328 (5th Cir. 2004) (finding the that over the course of one
and a half years, a coworker 1) made one remark about another employee’s
body; 2) once slapped plaintiff on the rear end with a newspaper; 3) “grabbed or
brushed” against plaintiff’s breast and rear end; 4) once held her cheeks and
tried to kiss her; 5) asked her to come in early so they could be alone; and 6)
15

once stood in the door of the bathroom while she was washing her hands, did not
rise to the level of severe or pervasive to alter the terms and conditions of her
employment); See also Shepherd v. Comptroller of Public Accounts of State of
Texas, 168 F.3d 871 (5th Cir. 1999) (holding conduct over almost two years, a
co-worker told plaintiff “your elbows are the same color as your nipples,” that she
had big thighs while simulating looking under her dress, stood over her desk and
tried to look down her dress, and said “here’s your seat” motioning to his lap
when she came in late for a meeting, while “boorish, were the equivalent of an
epithet that engenders offensive feelings”). The Court finds the allegations in this
case, if true, are not as severe or pervasive as those in the case law. Therefore,
there is no genuine dispute as to material fact and summary judgment is granted.

C) Plaintiff’s Retaliation Claims
Defendant claims Plaintiff cannot make a prima facie case for her
retaliation claims and that, to the extend she can, ICF has a legitimate, nonretaliatory reason for terminating her.

To establish a prima facie case of

retaliation, Plaintiff must show that: (1) she participated in an activity protected by
Title VII; (2) her employer took an adverse employment action against her; and
(3) a causal connection exists between the protected activity and the materially
adverse action. Aryian v. Wal-Mart Stores Texas, LP, 534 F.3d 473, 484 (5th
Cir. 2008).

It is unlawful for an employer to discriminate an employee:

16

. . . because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.

42 U.S.C §2000e-3(a). If Plaintiff is able to make her prima facie case, under the
McDonnell Douglas burden-shifting framework, the burden shifts to the
Defendant to offer proof of a legitimate, non-retaliatory reason for the termination.
Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 129 (5th Cir. 2011). Upon
doing so, the burden shifts back to the Plaintiff to show that but for the Title VIIprotected activity, she would not have been terminated. Id. The parties disagree
as to whether the pretext framework or the mixed-motive framework is to apply in
this case. The use direct evidence is no longer necessary in order for a Plaintiff
to employ the “mixed-motive” analytic framework. Smith v. Xerox, 602 F.3d 320,
327 (5th Cir. 2010).5

Under Xerox, the district court is to decide “at some point

in the proceedings” whether a case involves mixed motives. To do this, the court
must have before it “substantial evidence supporting a conclusion that both a
legitimate and an illegitimate motive” may have factored into the decision to
terminate. Id. at 333. Evidence is “substantial” if it is “of the quality and weight
that reasonable and fair-minded” people could reach different conclusions.
Nunley v. City of Waco, 2011 WL 3861678 at *5 (5th Cir. 2011). In the event of
such a finding, a defendant, upon plaintiff’s prima facie showing, would have to
not only present a legitimate, non-retaliatory reason for the termination, but would
5

The Xerox case came down after parties had filed their briefs.

17

also have to show “it would have made the same [adverse employment] decision
even without consideration of the prohibited factor.” Xerox, 602 F.3d at 333.
However, even under this framework, the ultimate burden of showing butfor causation remains on the plaintiff. Nunley at *5 (“Thus, our decision in Xerox
did not dispense with this final “but for” requirement for avoiding summary
judgment.”). In short, the only thing the mixed motive analysis does is increase
the bar for a defendant to reach before the ultimate burden of proving but-for
causation reverts to the plaintiff.
The Court will pretermit the determination of whether Plaintiff has not only
made a prima facie showing but done it in such a way as to merit a mixed motive
analysis. The reason for this is that the Defendant meets the higher burden and
the Plaintiff has not shown that but-for the prohibited act, she would not have
been terminated.
As for Defendant’s burden, ICF has offered proof of legitimate, nonretaliatory reasons for terminating her. Defendant has offered proof that Plaintiff
sent an email containing PII of Road Home clients to her sister. Their policy
prohibited such behavior and Plaintiff was aware of that. Further, she had been
issued a written warning concerning insubordination in refusing to report to work
in Baton Rouge. The Court finds Defendant has carried its burden of showing
that it would have terminated her for violating the policy against sending PII
information even if Plaintiff had not filed an EEOC complaint five months prior
and complained to various elected officials two months prior. Thus, the burden
18

shifts back to Plaintiff to show that but-for her protected activities, she would not
have been terminated. In her Opposition and later filings, Plaintiff has not offered
any evidence that, but-for her actions, she would not have been terminated. As
the Court finds there is not enough of such evidence in the record, it finds there is
no genuine dispute as to material fact on Plaintiff’s retaliation claim and summary
judgment is granted.

D) Plaintiff’s State Law Claims
1) Reprisal and Louisiana’s Whistleblower Statute
The Louisiana Whistleblower statute provides, in part:
A. An employer shall not take reprisal against an
employee who in good faith, and after advising the
employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or
practice that is in violation of state law.
(2) Provides information to or testifies before any public
body conducting an investigation, hearing, or inquiry
into any violation of law.
(3) Objects to or refuses to participate in an employment
act or practice that is in violation of law.

La. R.S. § 23:967. While the Louisiana Supreme Court has not interpreted this
statute, there is consensus that a plaintiff is required to prove the employer
committed an actual violation of state law, not just a good faith belief that a
violation has occurred. Murray v. Louisiana, 2011 WL 703653 (M.D. La. 2011);
19

Puig v. Greater New Orleans Expressway Comm’n, 00-924 (La. App. 5 Cir.
10/31/00); 772 So. 2d 842; Hale v. Touro Infirmary, 04-0003 (La. App. 4 Cir.
11/3/04); 886 So. 2d 1210; Accardo v. Louisiana Health Services & Indem. Co.,
05-2377 (La. App. 1 Cir. 6/21/06); 943 So. 2d 381. Additionally, the Court finds
the elements employed by the Louisiana Fourth Circuit in Hale persuasive. In
Hale, the court found a plaintiff must show: (1) the defendant violated state law;
(2) she informed defendant of the violation; (3) she refused to participate in the
violation or threatened to disclose the practice; and (4) she was fired as a result
of her refusal or threat. Hale, 886 So. 2d 1216.
The Court finds Plaintiff has satisfied only one of these elements. Due to
the sanctions imposed by the magistrate judge (docs. 66, 101), Plaintiff is limited
in the evidence she can present to meet her burden.

Acknowledging this

limitation, Plaintiff presents the following evidence: that she came into
possession of a 600-page document she believed was an ICF invoice to the
state, that she met with the Orleans Parish district attorney to express her
concerns about “padding the books” by ICF, and that she gave the district
attorney the document. (Doc. 107 at 6). This is not enough evidence to avoid
summary judgment.

Plaintiff has done nothing beyond making conclusory

allegations of a state law violation: there is no evidence that the alleged invoice
was actually submitted to the state or that the information contained therein was
false. And while she does present evidence, in her affidavit, that ICF knew she
had contacted authorities, she does not present evidence that she threatened to
20

tell anyone about this violation or that she was fired for doing so. Therefore, the
Court finds Plaintiff has not met her burden of showing a genuine dispute as to
material fact on the issue of her whistleblower claim and summary judgment is
granted to Defendant on this claim.
2) Intentional Infliction of Emotional Distress (“IIED”)
Defendant contends Plaintiff’s claim under the Civil Code for IIED is
derivative of her claims under LEDL and is thus supplanted by the more specific
statutes and should be dismissed.

In the alternative, Defendant contends

Plaintiff has not established the elements for IIED. In her opposition, Plaintiff
does not address the derivative claims argument. As the Court finds Plaintiff has
not established the elements for IIED, it pretermits the issue of whether Plaintiff
would be able to bring these claims.
To succeed under this theory, Plaintiff must establish three elements: (1)
extreme and outrageous conduct by the Defendants; (2) causing severe
emotional distress by Plaintiff; and (3) the Defendants desired this outcome or
knew it was certain or substantially certain to result. White v. Monsanto, 585 So.
2d 1205, 1209 (La. 1991). Defendants have asserted there is insufficient proof of
any of the three elements. As the nonmovant bears the burden of proof at trial,
the burden shifts to Plaintiff to produce evidence or designate specific facts
showing the existence of a genuine dispute for trial.
Plaintiff has not met this burden on the first element: though she alleges
the actions were extreme and outrageous, she does not point to evidence that is
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“so extreme in degree, as to go beyond all possible bounds of decency . . .
[l]iability does not extend to mere insults, indignities, threats, annoyances, petty
oppressions or other trivialities.” Id. The evidence she puts forward does not
rise to the level of that in the case law presented by Defendant, which all shows
relatively extreme behavior that did not satisfy the first element in the respective
cases. Further, Plaintiff provides no evidence beyond conclusory statements to
show ICF intended to cause her severe emotional distress or that they should
have known it was certain to result. And while the Court notes that continued
inaction by an employer has not been foreclosed as a source of an IIED claim in
Louisiana,6 Plaintiff has not produced sufficient evidence to justify its use—in fact
the evidence suggests Defendant acted promptly to each complaint. As there is
no genuine dispute as to material fact, summary judgment is granted.
3) Abuse of Right
As with the IIED claim, Defendant contends the Abuse of Right claim is
derivative and should be dismissed. Additionally, Defendant argues the doctrine
does not apply in situations where an employer exercises its right to set working
conditions and terminate at-will employees. (Doc. 67-2 at 39). As the Court
agrees with this second argument, it again pretermits the derivative claim
question.
6

The case Plaintiff cites, Brown v. Vaughn, 589 So. 2d 63 (La. 1991) is incorrect for two reasons. First, it
is a case from the Louisiana First Circuit, not the Louisiana Supreme Court. Second, the case cited does
not stand for the proposition stated by Plaintiff: it is s sexual harassment case; IIED is not mentioned in
the case, much less the statement of law cited by Plaintiff. The Court thinks Plaintiff must have meant to
cite to Bustamento v. Tucker, 607 So. 2d 532, (La. 1992), another sexual harassment case. In
Bustamento, the Louisiana Supreme Court made the “continued inaction” statement in a footnote, citing
to an Arizona Supreme Court case.

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Louisiana’s Abuse of Right doctrine is employed primarily in contract and
property rights cases. It may provide a remedy to a plaintiff if one of the following
conditions is met: (1) rights were exercised for the exclusive or predominant
purpose of harming another; (2) rights were exercised in the absence of a
serious and legitimate interest that is worthy of judicial protection; (3) rights were
used in violation of moral rules, good faith, or elementary fairness; or (4) rights
were exercise for a purpose other than that for which they were granted. Deus v.
Allstate, Ins. Co., 15 F.3d 506, 520 (5th Cir. 1994). Plaintiff incorporates her
argument that ICF’s reason for firing her was a pretext for a discriminatory
purpose.

She does not address case law from this circuit, indeed from this

district, that declines to apply this doctrine to working conditions and termination
in an employment setting. See Escousse v. State Farm Mut. Auto Ins. Co., 2000
WL 1298813 at *2 (M.D. La. 2000) (Duval, J.). The Court agrees with Defendant
that the abuse of rights doctrine does not apply in this situation.
As there is no genuine dispute as to these claims, summary judgment is
granted.
E) Prescription and Plaintiff’s Pre-Litigation Notice Requirements
As the Court has granted summary judgment in favor of Defendant on all
of the claims, the issues of prescription and pre-litigation notice are pretermitted.

Conclusion

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Accordingly, the Court hereby GRANTS Defendant’s Motion (doc. 67) on
all claims. Defendant’s request for attorney’s fees related to the whistleblower
claim is DENIED.

Signed in Baton Rouge, Louisiana, on November 14, 2011.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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