Angeletti et al v. Lane et al

Filing 102

RULING AND ORDER granting in part and denying in part 57 Motion for Partial Summary Judgment. Signed by Chief Judge Brian A. Jackson on 9/4/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ERIC ANGELETTI

CIVIL ACTION

VERSUS
GERALD LANE, ET AL.

NO.: 12-00503-BAJ-SCR

RULING AND ORDER
Before the Court is Plaintiff Eric Angeletti’s Motion for Partial Summary
Judgment (Doc. 57), filed by Plaintiff Eric Angeletti (“Angeletti”), seeking an order
from this Court granting him summary judgment, pursuant to Federal Rule of Civil
Procedure 56, and precluding Defendants Gerry Lane Enterprises, Inc. and Eric Lane1
(collectively “Defendants”) from asserting the Faragher/Ellerth affirmative defense.2
Defendants oppose the motion. (Doc. 61.) Angeletti filed a reply memorandum. (Doc.
79.) Oral argument is not necessary. Jurisdiction is proper, pursuant to 28 U.S.C. §
1331. For the reasons stated herein, Angeletti’s motion is GRANTED IN PART and
DENIED IN PART.
I.

Background
Angeletti filed this employment discrimination lawsuit pursuant to Title VII of

1

Defendant Eric Lane is named as a Defendant in his capacity as the Representative of the
Succession of Gerald R. Lane. (Doc. 49.)
2

See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524
U.S. 742 (1998).

the Civil rights Act of 1964, 42 U.S.C. § 2000, et seq. (“Title VII”) and the Louisiana
Employment Discrimination Law, La. R.S. § 23:301, et seq. Angeletti alleges that
Defendants discriminated against him on the basis of his race and/or national origin
and sex, and constructively discharged him from his sales associate position at Gerry
Lane Chevrolet in Baton Rouge, Louisiana.

Specifically, Angeletti alleges that

dealership owner, Gerald R. Lane, and others created a hostile work environment in
which he was subjected to discriminatory comments, name-calling, abusive language,
lewd comments and advances, and unwelcome physical contact. Angeletti further
alleges that Defendants retaliated against him in response to his complaints of
unlawful discrimination.
As to the instant motion, Angeletti seeks an order from this Court precluding
Defendants from asserting the Faragher/Ellerth defense in an attempt to avoid
vicarious liability for the alleged bad acts of its supervisors who acted as the
Company’s proxy. Angeletti also contends that Defendants cannot point to sufficient
evidence to establish either prong of the two-prong Faragher/Ellerth defense. Thus,
Angeletti argues that Defendants must be precluded from asserting the defense.
In opposition, Defendants contend that there are genuine disputes of material
fact as to both prongs of the Faragher/Ellerth defense. Defendants further contend
that in hostile work environment actions, the reasonableness of the employer’s actions
is an issue for the jury. Thus, Defendants contend that Angeletti’s motion for partial
summary judgment must be denied.

2

II.

Standard of Review
Pursuant to Federal Rule of Civil Procedure (“Rule”) 56, “[t]he court shall grant

summary judgment if the movant shows that there is 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 party moving for summary judgment must inform the Court of the basis
for the motion and identify those portions of the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, that show that
there is no such genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
If the moving party carries its burden of proof under Rule 56, the opposing party
must direct the court’s attention to specific evidence in the record which demonstrates
that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict
in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). This burden is
not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and
unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of
evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Rather, Rule
56 mandates that summary judgment be entered against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case
and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 323;
Liquid Air Corp., 37 F.3d at 1075.
In determining whether the movant is entitled to summary judgment, the court
views facts in the light most favorable to the non-movant and draws all reasonable
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inferences in the non-movant’s favor. Coleman v. Houston Independent School District,
113 F.3d 528, 533 (5th Cir. 1997). The court may not evaluate the credibility of
witnesses, weigh the evidence, or resolve factual disputes. International Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 502 U.S. 1059
(1992). However, if the evidence in the record is such that a reasonable jury, drawing
all inferences in favor of the non-moving party, could arrive at a verdict in that party’s
favor, the court must deny the motion for summary judgment. International Shortstop,
Inc., 939 F.2d at 1263.
III.

Analysis
The general rule is that an employer is automatically liable for its proxies’

harassment of employees. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). The
Faragher/Ellerth defense protects an employer from vicarious liability in hostile work
environment actions when no tangible employment action is taken against an
employee. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742 (1998). See also Casiano v. AT&T Corp., 213 F.3d 278, 284
(5th Cir. 2000) (“this is the employer’s only affirmative defense in a supervisor sexual
harassment case post Faragher/Ellerth, and it is available only in a hostile
environment situation.”). Under Faragher/Ellerth, an employer may avoid liability for
its employees’ actions by showing that “(a) that the employer exercised reasonable care
to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S.
4

at 765; Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 383-84 (5th Cir. 2003). However,
the Faragher/Ellerth defense is not available in all cases. An employer may not assert
the defense in two situations when vicarious liability automatically applies: (1) when
the harassing supervisor is “indisputably within that class of an employer
organization’s officials who may be treated as the organization’s proxy,” or (2) “when
the supervisor’s harassment culminates in a tangible employment action, such as
discharge, demotion, or undesirable reassignment.” Ackel, 339 F.3d at 383-84 (internal
citations and quotation marks omitted).
As an initial matter, the Court notes that Defendants do not oppose Angeletti’s
motion as it relates to the alleged acts of Gerald R. Lane.3 Indeed, Defendants concede
that they are precluded from asserting the Faragher/Ellerth defense in response to
Angeletti’s allegations regarding the acts of Gerald R. Lane because he was a proxy for
the Company. (Doc. 61, p. 15); see also Ackel, 339 F.3d at 383-84. Accordingly,
Angeletti’s request that the Court preclude Defendants from asserting the
Faragher/Ellerth defense in an attempt to avoid vicarious liability for the alleged acts
of Gerald R. Lane is GRANTED.

3

As noted above, Defendant Gerald R. Lane was terminated as a Defendant following his death.
(Doc. 49.) Eric Lane is now named as a Defendant in his capacity as the Representative of the Succession
of Gerald R. Lane. (Doc. 49.)
5

Angeletti’s Original Complaint and First Amended Complaint4 allege Gerald R.
Lane and his “personal assistant Wayne Garafolo” constantly harassed Angeletti.
(Doc. 1, ¶¶ 13-15; Doc. 6, ¶¶ 13, 16-18.) Angeletti further alleges that after he “gave
defendants written notice to cease and desist the persistent intentional discrimination
based upon race and sex or he would file suit,” Gerald R. Lane and Sales Manager
Cedric Patton (“Patton”) retaliated against and constantly harassed him. (Doc. 1, ¶¶
18-20; Doc. 6, ¶¶ 22-24.)
In support of the instant motion, Angeletti does not argue that Defendants may
not assert the Faragher/Ellerth defense in response to Angeletti’s allegations
regarding the acts of Garafolo and Patton. Rather, Angeletti argues that Defendants
cannot prove either prong of the two-prong Faragher/Ellerth defense. Accordingly,
Angeletti contends that Defendants are precluded from asserting the defense in an
attempt to avoid liability for Garafolo and Patton’s actions.
As such, the only remaining issue for the Court is whether Defendants have
pointed to sufficient evidence in the record to create a genuine dispute of material fact
as to whether: (1) Defendants exercised reasonable care to prevent and correct
promptly any discriminatory or sexually harassing behavior; and (2) Angeletti
unreasonably failed to take advantage of any preventive or corrective opportunities
provided by Defendants.

4

Angeletti originally filed this lawsuit along with ten other employees or former employees of
Gerry Lane Enterprises, Inc. (Doc. 1.) Subsequently, the Court issued an order requiring the Clerk of
Court to sever the claims into eleven separate lawsuits, and requiring each plaintiff to file an amended
complaint. (Doc. 4.) Accordingly, Angeletti filed his First Amended Complaint on September 11, 2012.
(Doc. 6.)
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It is well established that the Faragher/Ellerth defense is a conjunctive, twoprong defense. Giddens v. Cmty. Educ. Ctrs., Inc., 540 Fed. Appx. 381, 388 (5th Cir.
2013) (“once an employee has established all four elements [of a hostile work
environment claim], the employer is liable unless the employer proves both prongs of
the Faragher/Ellerth defense”); Donaldson v. CDB, Inc., 335 Fed. Appx. 494, 505 (5th
Cir. 2009) (“the Ellerth/Faragher defense being conjunctive, the employer bears the
burden on both elements.”); Indest v. Freeman Decorating, Inc., 168 F.3d 795, 796 (5th
Cir. 1999) (“Under the Ellerth/Faragher rubric, an employer is vicariously liable for
a supervisor’s actionable hostile environment sexual harassment of an employee unless
the employer can prove both elements of the one and only affirmative defense now
permitted by the Court.”) (emphasis in original). Thus, if Defendants fail to point to
sufficient evidence in the record to create a genuine dispute of material fact as to one
prong of the Faragher/Ellerth defense, summary judgment must be granted.
Generally, an employer may satisfy the first prong of the Faragher/Ellerth
defense by demonstrating it has a harassment policy which it promulgated to
employees and properly implemented and that, if an employee makes a complaint
under that policy, the employer conducts a prompt investigation.5 Johnson v. Hosp.

5

As the Supreme Court noted in Ellerth, “[w]hile proof that an employer had promulgated an
anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law,
the need for a stated policy suitable to the employment circumstances may appropriately be addressed
in any case when litigating the first element of the defense.” Id. at 463 (quoting Ellerth, 524 U.S. at 765).
Thus, courts in the Fifth Circuit look to an employer’s policies and programs in determining whether it
took reasonable measures to prevent discriminatory behavior. Id. at 463 (citing Harvill v. Westward
Commc’ns, L.L.C., 433 F.3d 428, 437-39 (5th Cir. 2005); Hockman v. Westward Commc’ns, L.L.C., 407
F.3d 317, 329-30 (5th Cir. 2004)).
7

Corp. of Am., 767 F. Supp. 2d 678, 717 (W.D. La. 2011) (citing Williams v. Admin.
Review Bd., 376 F.3d 471, 478-79 (5th Cir. 2004); Wyatt v. Hunt Plywood Co., Inc., 297
F.3d 405, 410, 413 (5th Cir.2002)). See also EEOC v. Boh Bros. Constr. Co., L.L.C., 731
F.3d 444, 462-463 (5th Cir. 2013) (“An employer can satisfy the first prong of the
Faragher/Ellerth defense by implementing suitable institutional policies and
educational programs regarding sexual harassment.”).
Here, Angeletti does not dispute that Defendants had a harassment policy.
Rather, Angeletti argues that there is no genuine dispute of material fact that
Defendants’ did not have an effective harassment policy.

Specifically, Angeletti

contends that Defendants failed to implement the Company’s policy. In support of his
argument, Angeletti points to the deposition testimony of acting President and
majority owner of Defendant Gerry Lane Enterprises, Inc., Eric Lane (“Lane”), in
which Lane testified that the harassment policy was not implemented at the time of
the events in question. (Doc. 58, pp. 24-25.)
Alternatively, Angeletti argues that, even if Defendants did implement the
harassment policy, the policy was ineffective because it did not include certain
provisions and because employees did not receive adequate training on the policy. In
support of his argument, Angeletti points to the deposition testimony of Patton and
Sales Manager Reynold Ankeny (“Ankeny”), in which both managers testified that they
did not receive training on harassment in the workplace. (Doc. 58-2, p. 2; Doc. 58-1,
pp. 16-17.) Angeletti also points to the deposition testimony of Sales Manager Cecil
Overstreet (“Overstreet”), in which Overstreet testified that he did not read the
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harassment policy or facilitate training on harassment in the workplace; nor did he
receive training on harassment in the workplace until after Angeletti’s lawsuit was
filed. (Doc. 57-4, pp. 7, 10-11.)
In opposition, Defendants point to evidence that the Company’s “NonHarassment Policy” was in effect at the time of the events in question. Specifically,
Defendants point to the July 2013 deposition testimony of Ankeny, in which Ankeny
testified that “this policy and procedure [has] been out for four or five years.” (Doc. 6110, p. 14.) Defendants also point to Terry Bell’s (“Bell”) Rule 30(b)(6) deposition,
during which Bell testified that the policy was in place in 2012. (Doc. 61-5, p. 6.)
Defendants further contend that the harassment policy was widely disseminated to all
employees. In support of this argument, Defendants point to the testimony of Cindy
Brown (“Brown”).

(Doc. 61-6.)

However, a review of the excerpt provided by

Defendants does not reveal any testimony by Brown regarding the dissemination of
Defendants’ harassment policy.

Defendants also contend that the Company’s

harassment policy was included in the orientation materials given to all employees,
including Angeletti, at the time of hire. In support of this argument, Defendants point
to Angeletti’s sworn testimony, in which he testified that he signed a form
acknowledging his receipt of the policy when he was hired. (Doc. 61-3, pp. 6-7.) See
also Doc. 61-4. In response to Angeletti’s contention that employees did not receive or
facilitate training on the policy, Defendants point to Bell’s Rule 30(b)(6) deposition,
during which Bell testified that Defendants provided training on harassment issues
in 2008. (Doc. 61-5, p. 4.) Finally, Defendants contend that whether the policy
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provisions were adequate is a question for the jury that should not be decided on
summary judgment.
As noted by the United States Court of Appeals for the Fifth Circuit, “[t]he mere
adoption of a policy is insufficient; the policy must also be shown to have been
effective.” EEOC v. Rock-Tenn Servs. Co., 901 F. Supp. 2d 810, 828 (N.D. Tex. 2012)
(citing Clark v. UPS, 400 F.3d 341, 349 (6th Cir. 2005) (“Prong one of the affirmative
defense requires an inquiry that looks behind the face of a policy to determine whether
the policy was effective in practice in reasonably preventing and correcting any
harassing behavior.”)). However, viewing the facts in the light most favorable to the
non-movant and drawing all reasonable inferences in the non-movant’s favor, the
Court finds that Defendants have pointed to sufficient evidence in the record to create
a genuine dispute of material fact as to whether Defendants’ harassment policy was
effective, and thus, whether Defendants exercised reasonable care to prevent and
correct promptly any discriminatory or sexually harassing behavior.
With respect to the second element of the Faragher/Ellerth defense, the
Supreme Court in Faragher recognized the duty imposed on an employee is a serious
one. He is “to use such means as are reasonable under the circumstances to avoid or
minimize the damages.” See Faragher, 524 U.S. at 806 (quoting Ford Motor Co. v.
EEOC, 458 U.S. 219, 231 n.15 (1982)). Thus, if an employer has provided an effective
mechanism for reporting and resolving complaints of sexual harassment, and an
employee unreasonably fails to avail himself of it, he is simply not permitted to recover
damages. Id. at 806-07; Ellerth, 524 U.S. at 765.
10

As noted above, Defendants are precluded from asserting the Faragher/Ellerth
defense in response to Angeletti’s allegations regarding the acts of Gerald R. Lane.
Thus, the only remaining issue is whether Defendants are precluded from asserting
the defense in an attempt to avoid liability for Garafolo and Patton’s alleged conduct.
Accordingly, to prevail, Angeletti must establish that there is no genuine dispute of
material fact that he reported the harassment by Garafolo and Patton.
In opposition, Defendants submitted a document entitled, “Selected Policies and
Procedures March 1, 2006.”6 (Doc. 61-4, p. 1.) Included in the “Selected Policies and
Procedures” is Defendants’ “Non-Harassment Policy,” which states:
The Company will take all reasonable steps to prevent harassment from
occurring and will take immediate and appropriate action when The
Company knows that unlawful harassment has occurred. . . . If a coworker has harassed you, a supervisor, an agent, a vendor, or a customer
you should promptly report the facts of the incident or incidents, and
names of the individuals involved as advised in the above Open Door
Policy. . . .
(Doc. 61-4, pp. 2-3.)

Also included in the “Selected Policies and Procedures” is

Defendants’ “Open Door Policy,” which states:
. . . You are encouraged to see your immediate supervisor with
suggestions, questions or problems relating to your job. You can contact
your supervisory, any member of management with whom you feel
comfortable discussing your concerns, or Mr. Eddy Vargas at 225-8069553 or Mr. Terry Bell at 225-297-5377. . . .
(Doc. 61-4, p. 1.)

6

The last three pages of the document include three acknowledgment statements, signed by
Angeletti and dated January 6, 2010. (Doc. 61-4, pp. 4-6.)
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In support of the motion, Angeletti contends that he reported Gerald R. Lane’s
conduct to his supervisors. However, as noted above, whether Angeletti reported
Gerald R. Lane’s alleged conduct is not at issue.
Angeletti fails to point to any evidence in the record to establish that he reported
Patton’s alleged conduct. As it relates to Garafolo, Angeletti points to the “written
notice of intent to sue” sent by Angeletti, through counsel, to Defendants on April 20,
2012.7 (Doc. 58-5.) Angeletti also points to Ankeny’s deposition testimony, in which
Ankeny testified that Garafola’s conduct towards employees violated the harassment
policy, that he “brought up” Garafola’s conduct to unknown managers “at times,” but
that he did not report Garafola’s conduct to the human resources manager or Gerald
R. Lane. (Doc. 58-1, pp. 10-11.) However, Ankeny’s testimony does not establish that
Angeletti reported Garafola’s alleged conduct to Ankeny or any other supervisory
employee.
In opposition, Defendants argue that Angeletti never complained of sexual
harassment by Garafola, and that Angeletti’s’ April 20, 2012 “written notice of intent
to sue” and April 2012 Equal Employment Opportunity Commission (“EEOC”) Charge
of Discrimination were the first notice the Company received of Angeletti’s claims. In
support of this argument, Defendants point to Bell’s Rule 30(b)(6) deposition, during
which Bell testified that managers have a duty to report all complaints to him, and

7

According to Angeletti’s Complaint, he was constructively discharged and filed an Amended
EEOC Charge of Discrimination on June 21, 2012. (Doc. 6, p. 6; Doc. 6-1, p. 2.)
12

that he never received a complaint regarding Garafola’s conduct. (Doc. 61-5, pp. 12-13.)
Angeletti has failed to point to any evidence in the record to establish that he
reported Patton’s alleged conduct, and thus, failed to meet his burden of proof under
Rule 56. As it relates to Garafolo, viewing the facts in the light most favorable to the
non-movant and drawing all reasonable inferences in the non-movant’s favor, the
Court concludes that Defendants have pointed to sufficient evidence in the record to
create a genuine dispute of material fact as to whether Angeletti reported Garafola’s
alleged conduct. Accordingly, the Court concludes that there is a genuine dispute of
material fact as to whether Angeletti reasonably took advantage of any preventive or
corrective opportunities provided by Defendants.
Because the Court concludes that Defendants have pointed to sufficient evidence
to create genuine disputes of material fact as to prongs one and two of the two-prong
Faragher/Ellerth defense, Angeletti’s request that Defendants be precluded from
asserting the Faragher/Ellerth defense in an attempt to avoid liability for Garafolo
and Patton’s alleged actions must be DENIED.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff Eric Angeletti’s Motion for Partial

Summary Judgment (Doc. 57) is GRANTED IN PART and DENIED IN PART.
•

Angeletti’s request that the Defendants be precluded from asserting the
Faragher/Ellerth defense in an attempt to avoid liability for Gerald R.
Lane’s

actions

is

GRANTED.
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Accordingly,

Defendants

are

PRECLUDED from asserting the Faragher/Ellerth defense in response
to Angeletti’s allegations regarding the acts of Gerald R. Lane.
•

Angeletti’s request that the Defendants be precluded from asserting the
Faragher/Ellerth defense in an attempt to avoid liability for Wayne
Garafolo and Cedric Patton’s actions is DENIED.

Baton Rouge, Louisiana, this 4th day of September, 2014.

______________________________________
BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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