Bell v Hercules Liftboat, LLC

Filing 134

RULING denying 107 Motion for Summary Judgment. Signed by Judge James J. Brady on 4/2/2012. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SUE BELL
CIVIL ACTION
VERSUS
NO. 11-332-JJB
HERCULES LIFTBOAT COMPANY, L.L.C.,
ET AL.
RULING ON MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court is a motion for partial summary judgment (Doc. 107) filed by plaintiff
Sue Bell against her former employer, defendant Hercules Liftboat Company, LLC (“Hercules”),
regarding Hercules’ business decision defense to her disability discrimination claims. Hercules
opposes this motion (Doc. 117), and Bell filed a reply (Doc. 122). Oral argument is unnecessary.
Jurisdiction exists under 28 U.S.C. §§ 1331 and 1332.
I.
The following facts are undisputed. Hercules hired Bell as a cost controller and estimator
in March 2007. Bell was diagnosed with breast cancer in 2009 and took a leave of absence for
treatment from February to July, 2010. On September 30, 2010, Byron Allemand, Hercules’
managing director of Gulf of Mexico Liftboats, submitted a report detailing his recommendation
for changes to the organization and structure of the repair and maintenance group of the division
in which Bell worked. (See R&M Report, Doc. 63-6). Allemand’s recommendation included
elimination of Bell’s position due to overlapping duties with another group performing similar
tasks. (Id.). On January 24, 2011, Bell’s position was eliminated and her employment with
Hercules terminated.

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II.
In this partial summary judgment motion, Bell attacks the validity of and motive behind
Allemand’s R&M Report. She alleges the report is false and unworthy of credence (and thus
cannot serve as a defense for Hercules’ termination of her) because Allemand had no relevant
experience or expertise, intentionally misrepresented or falsified facts in the report, and issued
the report merely as a pretext for Hercules’ discriminatory decision to terminate her under
auspices of a layoff caused by business needs and budgetary demands.
In response, Hercules asserts this motion should more properly be denominated a motion
in limine rather than a partial summary judgment, but in any event it characterizes Bell’s motion
as an attempt to substitute her opinion for Allemand’s business judgment. Hercules disputes
many of Bell’s characterizations of the R&M Report, especially the intentionally false
characterization and Allemand’s alleged lack of credentials.
III.
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact.” Fed. Rule Civ. P. 56(a). The party seeking summary judgment
carries the burden of demonstrating that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the burden at
trial rests on the non-moving party, the moving party need only demonstrate that the record lacks
sufficient evidentiary support for the non-moving party’s case. Id. The moving party may do
this by showing that the evidence is insufficient to prove the existence of one or more essential
elements of the non-moving party’s case. Id. A party must support its summary judgment
position by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the absence or presence of a genuine dispute.” Fed. Rule Civ. P. 56(c)(1).
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Although the Court considers evidence in a light most favorable to the non-moving party,
the non-moving party must show that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). Conclusory allegations and unsubstantiated assertions
will not satisfy the non-moving party’s burden. Grimes v. Tex. Dep’t of Mental Health, 102 F.3d
137, 139-40 (5th Cir. 1996). Similarly, “[u]nsworn pleadings, memoranda or the like are not, of
course, competent summary judgment evidence.” Larry v. White, 929 F.2d 206, 211 n.12 (5th
Cir. 1991), cert. denied, 507 U.S. 1051. If, once the non-moving party has been given the
opportunity to raise a genuine fact issue, no reasonable juror could find for the non-moving
party, summary judgment will be granted for the moving party. Celotex, 477 U.S. at 322.
IV.
Bell has brought forth a number of claims. She asserts tort claims of harassment and
intentional infliction of emotional distress under La. C.C. art. 2315, 1 claims under Louisiana’s
Employment Discrimination Law, La. R.S. 23:301 et seq., 2 and other unnamed claims under
state and federal law. (Status Report, Doc. 13, at 6 (describing her allegations against Hercules
Liftboat arising from her original complaint); see also Complaint, Doc. 16-1 (unaffected by
amended complaint adding defendants and ERISA claims)). The complaint also makes a general
allegation of retaliation based on Bell’s reporting of her disability. (Doc. 16-1, at ¶ 64).
Bell’s motion seeks to show the R&M Report “is not based in fact and is pre-text for
termination.” (Memo. in Support, Doc. 107-1, at 1). The sole case plaintiff cites to support the

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“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”
La. C.C. art. 2315(A).
2
See, e.g., La. R.S. 23:323(A) (“No otherwise qualified disabled person shall, on the basis of a disability, be
subjected to discrimination in employment.”). Subsection (B) of La. R.S. 23:323 lists prohibited employment
practices. The Court notes her original petition describes her first claim as arising under La. R.S. 23:301 et seq. for
discrimination and her second claim as arising under La. R.S. 23:323 et seq. for discrimination. Because the Court
has not detected any allegations of discrimination based on a protected characteristic aside from disability, the Court
treats these two claims in tandem.

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pretext claim—in either her primary or reply brief—comes from a Fifth Circuit case describing
the burden of showing pretext under Title VII, a federal statute. (See Memo. in Support, Doc.
107-1, at 3 (citing Nasti v. CIBA Specialty Chemicals Corp., 492 F.3d 589, 593 (5th Cir. 2007))).
Nasti describes the McDonnell Douglas burden-shifting framework for evaluating Title
VII claims. Once a plaintiff establishes a prima facie case of discrimination, the employer must
produce a legitimate, non-discriminatory reason for its actions. Once the employer furnishes a
legitimate reason, the framework dissipates, and plaintiff bears the burden of persuading the trier
of fact that the employer engaged in intentional discrimination. Thus, plaintiff must produce
substantial evidence that the employer’s proffered reasons for the actions were a pretext for
discrimination. Plaintiffs can establish pretext by either evidence of disparate treatment or by
showing the employer’s proffered explanation is false or unworthy of credence. Nasti, 492 F.3d
at 593 (citations and quotations omitted).
It is thus unclear by what authority and to which claims Bell seeks to apply the pretext
argument. If she is indeed invoking federal Title VII law as a basis for recovery, as the status
report implies she wishes to do, this suspect approach would surreptitiously introduce a federal
employment claim into the case without actually pleading the claim. If she is seeking to apply
the pretext law of Title VII to her state discrimination claims and Hercules’ anticipated defense
of its actions, she gives the Court no Louisiana case law adopting Title VII interpretations in the
state arena. 3
Due to the motion’s lack of clarity, Hercules treats this as a motion in limine. Reading
the motion charitably, Bell is seeking to disprove the R&M Report in order to forestall Hercules’

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Nevertheless, the Court’s own examination of Louisiana jurisprudence supports permitting this practice. See, e.g.,
Brittain v. Family Care Services, Inc., 801 So.2d 457, 460-61 (La. App. 2d Cir. 2001) (finding Title VII
interpretations persuasive with respect to Louisiana anti-discrimination law).

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anticipated defense of restructuring as its proffered legitimate, non-discriminatory reason for her
termination. Regardless, Bell is not entitled to the remedy sought because genuine disputes of
material fact exist, making summary judgment improper.
Bell makes much ado about Allemand’s lack of liftboat experience, which she implies
makes him unqualified to terminate her. But that is a quintessential business judgment which
this Court has no business second-guessing. See EEOC v. La. Office of Community Services, 47
F.3d 1438, 1448 (5th Cir. 1995) (applying federal Age Discrimination in Employment Act
(ADEA) and holding courts should not second-guess employment decisions or act as personnel
managers and substitute their judgments for the employer’s, absent proof of discriminatory
motive). It is the employer’s province to staff itself with the persons it deems best-suited to carry
out its business purposes. And even though Allemand is an accountant, there is nothing in the
record from which to infer accountants generally, or Allemand in particular, cannot adequately
analyze business structures to identify areas of overlap which may be susceptible to cost savings
by consolidation. Indeed, Allemand’s affidavit provides evidence that he has experience in
managing offshore boat companies and liftboat construction. (Doc. 117-3, ¶ 3).
Bell’s contentions that Allemand intentionally misrepresented and falsified the report are
controverted by Allemand’s affidavit averring otherwise. (Id., ¶ 13). Similarly, the factual
accuracy of Allemand’s report has simply not been disproven by the evidence plaintiff
submitted. Most of plaintiff’s arguments regard her effectiveness as an employee, whereas most
of Allemand’s report focuses on structural efficiencies. While this certainly does not mean his
report is incapable of being falsified or found unworthy of credence, the evidence submitted by
plaintiff only establishes a genuine dispute of material fact. It does not create an entitlement to

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judgment as a matter of law. Plaintiff bears the burden of showing the report was merely a
pretext for unlawful discrimination, and she has failed to do so here.
V.
Accordingly, it is ORDERED that plaintiff Sue Bell’s motion for partial summary
judgment (Doc. 107) is hereby DENIED.
Signed in Baton Rouge, Louisiana, on April 2, 2012.





JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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