Bell v Hercules Liftboat, LLC

Filing 12

RULING denying 5 Motion to Stay. Signed by Judge James J. Brady on 07/15/2011. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SUE BELL
CIVIL ACTION
VERSUS
NO. 11-332-JJB-SCR
HERCULES LIFTBOAT COMPANY, LLC

RULING ON DEFENDANT’S MOTION TO STAY
This matter is before the Court on Defendant’s Motion (doc. 5) to Stay.
Plaintiff has filed an opposition (doc. 8) to which Defendant has replied (doc. 11).
The Court’s jurisdiction exists pursuant to 28 U.S.C. § 1332. Oral argument is
not necessary. For the reasons stated herein, the Court DENIES Defendant’s
motion.
Background
This case arises from the allegedly discriminatory termination of Plaintiff
Sue Bell (“Bell”) by her employer, Defendant Hercules Liftboat Co., LLC
(“Hercules”).
In November 2009, Bell, who had been employed by Hercules since 2007,
was diagnosed with cancer. In early 2010, she went on a six-month disability
leave. She returned to work in July 2010, but experienced ongoing medical
difficulties related to her cancer treatment.
On January 26, 2011, Hercules terminated Bell. When Bell inquired into
whether she was terminated for taking disability leave, a Hercules human
resources representative stated that Hercules had simply been conducting a
1

company-wide review and that it had terminated multiple employees as a result.
Later, Bell learned that she was the only employee in her division who was
terminated. On April 25, 2011, Bell filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”), and, three days later, she filed
suit.
Plaintiff asserts that Defendant (1) discriminated against her due to her
disability in violation of Louisiana Revised Statute § 23:303; (2) intentionally
inflicted emotional distress upon her in violation of Louisiana Civil Code article
2315; and (3) withheld wages and bonus pay following her termination in
violation of Louisiana Revised Statute § 23:631.

Plaintiff also all asserts that

Defendant retaliated against her, but did not specifically state whether she was
seeking relief under Federal or state law.
On June 10, 2011, Defendant filed a Motion (doc. 5) to Stay the Plaintiff’s
action. Defendant asserts that Plaintiff’s retaliation claim is governed exclusively
by the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”),
which requires a Plaintiff to exhaust his or her administrative remedies prior to
filing suit. Because Plaintiff did not do so, Defendant asserts that the Court
should enter a stay until such time.
On June 17, 2011, Plaintiff filed an opposition. Plaintiff asserts that the
Court should not issue a stay until she exhausts her administrative remedies
because (1) her retaliation claim was in filed pursuant to the Louisiana
Whistleblower Act Louisiana Revised Statute § 23:967 (“LWA”); (2) the Court
2

may nonetheless exercise pendant jurisdiction over her retaliation claim; (3)
Defendant is being investigated by and may have to pay penalties to the
Securities Exchange Commission and may be unable to make Plaintiff whole at a
later date; (4) Plaintiff’s health is deteriorating and she requires a prompt
resolution in order to pay her healthcare bills.
In its June 24, 2011 response, Defendant asserts that (1) Plaintiff has no
claim for retaliation under the LWA; (2) the Court may not exercise pendant
jurisdiction over her retaliation claim; and (3) Plaintiff’s health or the possibility
that she may be unable to recover her award were she to prevail at a later date
are irrelevant to the resolution of the motion to stay.
Discussion
Plaintiff cites three reasons why Defendant’s motion to stay should be
denied. First, Plaintiff asserts that her retaliation claim arises under the LWA, not
Federal law. Second, even if her retaliation claim arises under the ADA, Plaintiff
asserts that this Court can exercise pendant jurisdiction over the claim. Third,
Plaintiff asserts that her deteriorating health and the possibility that Hercules may
become insolvent justify denying the motion to stay.
Defendant asserts that Plaintiff’s retaliation claim does not arise under the
LWA which prohibits an employer from retaliating against an employee for
disclosing or objecting to an illegal workplace act by the employer. As such,
Defendant asserts that Plaintiff’s claim arises under the ADA, which prohibits an
employer from retaliating against an employee solely for objecting to its
3

discriminatory practices. Defendant also asserts that the Court may not exercise
pendant jurisdiction over her retaliation claim because Plaintiff is required to
exhaust her administrative remedies before the Court can exercise subject
matter jurisdiction over the claim. Finally, Defendant asserts that Plaintiff’s health
and its future solvency are irrelevant to the Court’s resolution of the motion to
stay.
Both Federal and Louisiana state law provide employees with causes of
action for myriad forms of discrimination and retaliation by employers. The ADA
prohibits employers from discriminating against an employee based on the
employee’s disability, 42 U.S.C. §§ 12101, et seq, or retaliating against the
employee for objecting to discriminatory practices, 42 U.S.C. § 2000, et seq.
Under the ADA, an employee alleging discrimination or retaliation must first file a
charge with the EEOC, comply with the EEOC’s investigation, and receive a
Notice of Right to Sue prior to filing suit. Pacheco v. Mineta, 448 F. 3d 783, 788
n. 6 (5th Cir. 2006).
Louisiana law also prohibits an employer from discriminating against an
employee on the basis of the employee’s disability. La. Rev. Stat. § 23:303.
Moreover, Louisiana law prohibits an employer from retaliating against an
employee for disclosing, testifying as to, or objecting to a workplace conduct that
is in violation of state law. La. Rev. Stat. § 23:967. However, under Louisiana an
aggrieved employee need not file a charge with the EEOC or any other agency
prior to filing suit against its employer for discrimination or retaliation. La. Rev.
4

Stat. § 23:1006(D); Salard v. Lowe's Home Ctrs, Inc., 904 F. Supp. 569, 571-72
(W.D. La. 1995); Coutcher v. La. Lottery Corp., 710 So. 2d 259, 259 (La. Ct. App.
1st Cir. 1997).
The Court finds that Defendant’s motion to stay should be denied. First,
Plaintiff, in her opposition, clarified that all of the causes of action cited in her
complaint arise under Louisiana law, including her claims for discrimination and
retaliation (doc. 1). Though the facts cited by Plaintiff might have also supported
claims for discrimination and retaliation under Federal law, Plaintiff chose not to
pursue that route, and the plaintiff is the “master to decide what law [s]he will rely
on in pursuing [her] claims.” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22,
25 (1913); Aaron v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 876 F.2d 1157,
1160-61 (5th Cir. 1989).

Second, though the facts supporting Plaintiff’s

retaliation claim under the LWA may well fail to state a claim upon which relief
can be granted, Defendant cannot unilaterally convert Plaintiff’s state claim into a
federal claim on the grounds that Plaintiff will have better success—however
benevolent its intentions may be. What’s more, the Defendant overstates the
weakness of Plaintiff’s state retaliation claim; terminating Plaintiff for her disability
would constitute a violation of Louisiana’s anti-discrimination statutes, thus
making the elements of her Federal and state retaliation claims nearly identical.
See La. Rev. Stat. §§ 23:301, et seq. (making discrimination on the basis of
disability illegal under Louisiana law). Finally, and perhaps most importantly, to
the extent that Plaintiff’s Federal and Louisiana retaliation claims arise out of the
5

same transaction or occurrence, Defendant will be protected against having to
later litigate Plaintiff’s potential federal claims by the doctrine of res judicata. See
Hugel v. S. E. La. Flood Protection Authority-E., 2011 WL 2342688, *3 (5th Cir.
June 14, 2011).
CONCLUSION
Accordingly, the Court hereby DENIES Defendant’s Motion (doc. 5) to
Stay.
Signed in Baton Rouge, Louisiana this 5th day of July, 2011.

S

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

6