James v. Lane et al

Filing 97

RULING AND ORDER granting in part and denying in part 64 Defendants' Motion for Summary Judgment. Defendants' request that the Court dismiss Jamess claim under La. R.S. § 23:631 is GRANTED. Defendants' request that the Court d ismiss James's federal and state law discrimination claims against Gerald R. Lane, or any other individual supervisor or fellow employee, is GRANTED. Defendants' request that the Court dismiss James's claim that he was subjected to a hostile work environment claim on the basis of his sex is GRANTED. Defendants' request that the Court dismiss James's hostile work environment claim on the basis of his race is GRANTED. Defendants' request that the Court dismiss Jame s's hostile work environment claim on the basis of his national origin is GRANTED. Defendants' request that the Court dismiss James's retaliation claim is GRANTED. Defendants' request that the Court dismiss James's construc tive discharge claim is GRANTED. Defendants' request that the Court dismiss James's assault claim is GRANTED. Defendants' request that the Court dismiss Jamess intentional infliction of emotional distress claim is GRANTED. IT IS FUR THER ORDERED that James's battery claim is DISMISSED WITHOUT PREJUDICE and that this matter is REMANDED to the Nineteenth Judicial District Court, Parish of Baton Rouge, State of Louisiana for consideration of Jamess remaining state law claim. Signed by Chief Judge Brian A. Jackson on 09/25/2014. (CGP) Modified on 9/26/2014 to edit text (CGP).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TIMOTHY JAMES

CIVIL ACTION

VERSUS
GERALD LANE, ET AL.

NO.: 12-00523-BAJ-SCR

RULING AND ORDER

Before the Court is Defendants’ Motion for Summary Judgment (Doc. 64),
filed by Defendants Gerry Lane Enterprises, Inc. and Eric Lane1 (collectively
“Defendants”), seeking an order from this Court granting summary judgment, pursuant
to Federal Rule of Civil Procedure 56, and dismissing Plaintiff Timothy James’s (“James”)
claims. James opposes the motion. (Doc. 67.) Defendants filed a reply memorandum.
(Doc. 75.) Oral argument is not necessary. Jurisdiction is proper, pursuant to 28 U.S.C.
§ 1331. For the reasons stated herein, Defendants’ motion is GRANTED IN PART and
DENIED IN PART.

1

Defendant Eric Lane is named as a Defendant in his capacity as the Representative of the
Succession of Gerald R. Lane. (Doc. 48.)

19th JDC - Certified

I.

Background
A.

James’s First Amended Complaint2

James filed this employment discrimination lawsuit pursuant to Title VII of 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.3

James alleges that

Defendants discriminated against him on the basis of his national origin, race, and sex
and constructively discharged him from his sales associate position at Gerry Lane
Chevrolet in Baton Rouge, Louisiana. Specifically, James alleges that dealership owner,
Gerald R. Lane, and his assistant created a hostile work environment in which James
was subjected to discriminatory comments, name-calling, abusive language, intimidation,
lewd comments and advances, and unwelcome physical contact. According to James,
Defendants also retaliated against him in response to his complaints of unlawful
discrimination. James’s Complaint also alleges that Gerald R. Lane’s actions amounted
to intentional infliction of emotional distress. James further alleges claims for assault
and battery, pursuant to La. R.S. § 14:36 and La. Civ. Code art. 2315, and a claim for
unpaid wages under La. Rev. Stat. § 23:631, et seq.

2

James originally filed this lawsuit along with ten other current and 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, James filed his First Amended Complaint on September 11, 2012.
(Doc. 6.)
3

A previous ruling by this Court indicated that James also asserted a claim under 42 U.S.C. §
1981. (Doc. 94,p. 1.) However, a review of James’s complaint reveals that he seeks damages under 42
U.S.C. § 1981(a) only, and did not allege a claim under 42 U.S.C. § 1981.
2

B.

Undisputed Facts4

•

Defendant Gerry Lane Enterprises operates as Gerry Lane Chevrolet, an
automobile dealership in Baton Rouge.

•

Prior to his May 2013 death, Defendant Gerald R. Lane owned a majority interest
in Gerry Lane Enterprises.

•

Gerald R. Lane also owned a majority interest in three other new car dealerships
in Baton Rouge: Gerry Lane Cadillac, Gerry Lane Buick GMC and Gerry Lane
Imports.

•

During James’s employment, Reynold Ankeny (Caucasian) served as a Sales
Manager, reporting directly to Cedric Patton (African-American).

•

Sales managers Ken Balthrop (African-American), Chad Bell (Caucasian), Cecil
Overstreet (African-American) and JK Khamiss (Middle-Eastern) reported to
Ankeny and directly supervised the sales force.

•

The sales force typically is comprised of anywhere between twenty to thirty
individuals.

•

During the 2011-2012 time-frame, approximately seventy to eighty percent of the
sales force was African-American.

•

James is an African-American male born and raised in Baton Rouge.

•

On July 6, 2010, James began working for Gerry Lane Enterprises selling cars.

•

Like all employees, James received an initial orientation at the time of his hire.

•

As part of this process, James received various policies governing the terms of his
employment.

•

Gerry Lane Enterprises was James’s first position in automotive sales.

•

James was hired by Todd Long, a Caucasian manager working for the Dealership
at the time.

4

In accordance with Rule 56.1 of the Local Rules of the United States District Court for the
Middle District of Louisiana, Defendants submitted a statement of undisputed material facts. (Doc. 642); L.R. 56.1. In opposition, James submitted a response to Defendants’ statement of undisputed
material facts. (Doc. 67-2); Fed.R.Civ.P. 56(c); L.R. 56.2. Accordingly, only certain material facts are
deemed admitted for purposes of this ruling and order. L.R. 56.2.
3

•

During James’s interview, Long warned him that the “sales meetings were rough”
and told him that the business was “high pressure.”

•

James understood that the Dealership ranked at or near the top of all Chevrolet
dealerships in Louisiana.

•

During his employment, James was paid on commission – meaning the more
vehicles he sold, the more income he earned.

•

James generally averaged fewer than eight vehicles per month (which was the
level Patton considers “average”).

•

Diane Trask, Terry Bell and Kendrick Thomas, all of whom are African-American,
were generally the top-selling sales representatives during James’s term of
employment.

•

Early in his employment, James’s cell phone rang during a sales meeting.

•

The Dealership’s rule was that all cell phones were to be turned off during
meetings.

•

As a result, Gerald R. Lane terminated James’s employment.

•

Nevertheless, James immediately returned to work for the Dealership and
apologized to Gerald R. Lane and was instructed “not to let it happen again.”

•

James understood that Gerald R. Lane was in his late seventies and was suffering
from cancer.

•

On April 20, 2012, James’s counsel sent a letter to the Company and Gerald R.
Lane indicating that James intended to pursue legal claims for harassment and
discrimination.

•

Subsequently, Terry Bell issued a written memorandum in which he instructed
Offord to report any retaliation to him.

•

Offord’s counsel then instructed Defendants not to have any communication with
Offord about any of the allegations of wrongdoing.

•

James was not terminated following the receipt of notice that he intended to
pursue claims against the Dealership and Gerald R. Lane.

4

•

Gerald R. Lane slapped James on the backside on one occasion but he did not
perceive Gerald R. Lane’s conduct to be sexual.

•
•

Both Gerald R. Lane and Cedric Patton had strong personalities.
The Dealership has hired numerous African-Americans to work in sales since
James’s resignation.

•

Gerald R. Lane provided Cedric Patton with an ownership interest in his business
operations and put him in charge of the Chevrolet and Buick GMC dealerships.

•

James cannot establish that Gerry Lane Enterprises failed to pay him any wages
or other sums due at termination in violation of Louisiana law.
C.

Defendants’ Motion for Summary Judgment

As to the instant motion, Defendants seek an order from this Court dismissing
James’s claims. Defendants contend that James is precluded from asserting federal or
state law discrimination claims against individual supervisors. Defendants further argue
that James cannot point to sufficient evidence to establish his discrimination claims on
the basis of his sex, national origin, or race. Defendants also contend that James cannot
point to sufficient evidence to establish his retaliation, constructive discharge, intentional
infliction of emotional distress, assault and battery, or unpaid wages claims. Accordingly,
Defendants argue that summary judgment is warranted.
James concedes that relief under Title VII or the Louisiana Employment
Discrimination Law is only available against an employer, and not against an individual
supervisor or fellow employee. James further concedes that he cannot point to sufficient
evidence to establish his unpaid wages claims. He argues, however, that there are
genuine disputes of material fact that preclude summary judgment in favor of
Defendants. Specifically, James contends that there are genuine disputes of material fact
related to his sex, national origin and race discrimination claims, as well as his
5

retaliation, constructive discharge, intentional infliction of emotional distress, and assault
and battery claims. Accordingly, James contends that Defendants’ motion must be
denied.
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

6

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
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
As an initial matter, as noted above, James concedes that he cannot point to

sufficient evidence to establish his unpaid wages claim. James also concedes that relief
under Title VII or the Louisiana Employment Discrimination Law is only available
against an employer, and not against an individual supervisor or fellow employee.
Umoren v. Plano Indep. Sch. Dist., 457 F. Appx. 422, 425 (5th Cir. 2012); Mitchell v.
Tracer Construction Co., et al., 256 F. Supp. 2d 520, 525 (M.D. La. 2003); see also La. R.S.
23:303(A). Accordingly, Defendants’ request that the Court dismiss James’s unpaid
wages claim as well as his federal and state law discrimination claims against Gerald R.
Lane, or any other individual supervisor or fellow employee is GRANTED.

7

A.

James’s Hostile Work Environment Claim on the Basis of His
Sex5

“[A] plaintiff may establish a violation of Title VII by proving that discrimination
based on sex has created a hostile or abusive working environment.” Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 66 (1986). Such a violation occurs when the plaintiff
establishes he: “(1) belongs to a protected group; (2) was subjected to unwelcome
harassment; (3) the harassment complained of was based on [sex]; (4) the harassment
complained of affected a term, condition, or privilege of employment; (5) the employer
knew or should have known of the harassment in question and failed to take prompt
remedial action.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir. 2012);
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). Here, Defendants contend that
James cannot establish that the harassment complained of affected a term, condition, or
privilege of his employment.
In order for harassment to affect a term, condition, or privilege of employment, it
must be “sufficiently severe or pervasive to alter the conditions of [the victim’s]
employment and create an abusive working environment.”

Harvill v. Westward

Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005) (quoting Meritor Sav. Bank, 477 U.S.
at 67). For harassment to be sufficiently severe or pervasive to alter the conditions of

5

Employment discrimination claims under Title VII and the Louisiana Employment
Discrimination Law are analyzed under the same standard. Turner v. Kan. City Southern Ry. Co., 675
F.3d 887, 891 (5th Cir. 2012) (the Louisiana Employment Discrimination Law requires the same
elements of proof as a Title VII hostile work environment claim); Knapper v. Hibernia Nat’l Bank, 49 So.
3d 898, 902 n.11 (La. Ct. App. 2010) (“Claims under the [Louisiana Employment Discrimination Law]
are subject to the same analysis as discrimination claims under federal Title VII of the Civil Rights Act
of 1964.”). Accordingly, James’s claims under Title VII and the Louisiana Employment Discrimination
Law shall be jointly addressed and analyzed.
8

employment, the conduct complained of must be “both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one that the
victim in fact did perceive to be so.” Aryain v. Wal-Mart Stores of Tex. LP, 534 F.3d 473,
479 (5th Cir. 2008); see also Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993).
Thus, not only must the victim perceive the environment as hostile, the conduct must also
be such that a reasonable person would find it to be hostile or abusive. Harris, 510 U.S.
at 21-22. To determine whether the victim’s work environment was objectively offensive,
courts consider the totality of the circumstances, including: (1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether it is physically threatening or
humiliating; (4) whether it interferes with an employee’s work performance. Id. at 23.
In his First Amended Complaint, James alleges that Gerald R. Lane’s personal
assistant Wayne Garafolo “is openly homosexual and constantly makes lewd sexual
innuendo and advances at the sales staff including Plaintiff [ ] by making inappropriate
comments about sex and penises.” (Doc. 6, p. 5.) When questioned about his sexual
harassment claim by counsel for Defendants testified as follows:
Q:

Okay. Did anybody else sexually harass you when you worked
there?

A:

Wayne Garafola, he would - when I’d walk - when I’d walk across
the showroom floor he would say, Tim, you’re hanging to the left.

Q:

And how many times did Mr. Garafola make that comment [to
you]?

A:

He would make it - it wasn’t, you know, maybe once a month, you
know, something like that. He would say, Tim, you’re hanging to
the left.

(Doc. 67-3, pp. 38-39.) A review of James’s deposition reveals that this is the only
9

comment or action by Garafola that he could recall.6 (Doc. 64-6, pp. 100-105; Doc. 67-3,
pp. 38-41, 43-44).
In opposition to the motion, James contends that Garafola also called him by the
“pet name” “Thunder,” and that such “pet name” had a sexual connotation. However,
James’s contention is undermined by his own deposition testimony:
Q:

Who made the nickname up?

A:

What happened was, I was talking to Avery about - me and Avery
was joking around and Avery made it known. Avery started
talking to everybody about it and then that’s - that’s what they
started saying.

...
Q:

Did it have a sexual meaning to it?

A:

Sexual meaning, not to me . . .

(Doc. 75-1, pp. 31-32.)
Simply put, James has failed to point to sufficient evidence from which a jury could
conclude that the harassment complained of was severe or pervasive enough to affect a
term, condition, or privilege of his employment. James does not point to evidence that
Garafola made physical or sexual advances toward him, as is characteristic of many
hostile work environment claims. Further, James has failed to point to evidence to
establish that the harassment complained of interfered with his work performance.

6

James also points to the deposition testimony of his coworkers, who generally testified about
Garafola’s actions towards male employees or other comments allegedly made by Garafola to James or
other male employees. See, e.g., Doc. 67-5, p. 24. However, a review of James’s deposition reveals that
he did cite any of these alleged actions or comments as examples of harassment by Garafola. See Docs.
64-6, 67-3, 75-1. Further, James failed to cite, nor has the Court identified, binding case law that would
permit the Court to consider evidence that the plaintiff in this litigation does not even recall.
Accordingly, such evidence shall not be considered.
10

When compared to cases in which courts in this Circuit have denied summary judgment
or afforded relief, Garafola’s comments were simply not frequent or serious enough to
alter James’s work environment. Compare Hockman v. Westward Communs., LLC, 407
F.3d 317, 328-29 (5th Cir. 2004) (finding that the defendant’s actions of making one
remark to the plaintiff about another employee’s body, slapping the plaintiff on her
behind with a newspaper, grabbing or brushing against the plaintiff’s breast or behind,
attempting to kiss the plaintiff on one occasion, and standing in the door of the women’s
bathroom while the plaintiff was washing her hands did not qualify as a hostile work
environment), with Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 524 (5th
Cir. 2001) (finding that repeated sexual advances in the face of adamant refusals by the
plaintiff were sufficiently extreme to qualify as a hostile work environment).
Title VII is intended only to prohibit and prevent conduct “that is so severe and
pervasive that it destroys a protected class member’s opportunity to succeed in the
workplace.” Id. (internal quotation marks and citation omitted). Garafolo’s comments
simply do not approach the level of “extreme conduct that would prevent [James] from
succeeding in the workplace.” Id. Accordingly, Defendants’ request that the Court
dismiss James’s claim that he was subjected to a hostile work environment claim on the
basis of his sex is GRANTED.
B.

James’s Hostile Work Environment Claim on the Basis of His
Race

A plaintiff may establish a Title VII violation based on race discrimination creating
a hostile work environment. Ramsey, 286 F.3d at 268. “The complainant in a Title VII
trial must carry the initial burden under the statute of establishing a prima facie case of
11

racial discrimination.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To
establish a prima facie case, the plaintiff must prove that: (1) he is a member of a
protected class; (2) he was subjected to unwelcome harassment; (3) the harassment
complained of was based on race; (4) the harassment complained of affected a term,
condition, or privilege of employment; (5) the employer knew or should have known of the
harassment in question and failed to take prompt remedial action.7 Ramsey, 286 F.3d at
268.
In opposition to the motion, James points to his deposition, in which he testified
that Gerald R. Lane told him “several times a week” that he “could get a trained monkey
to sell cars.” (Doc. 67-3, pp. 17-19.) According to James, Gerald R. Lane did not make
this statement to white employees. (Doc. 67-3, p. 20.) James also testified that Gerald
R. Lane “said he wanted to cut all the trees on the lot because we looked like a bunch of
monkeys under the trees” “more than ten” times. (Doc. 64-6, p. 78; Doc. 67-3, pp. 21.)
When questioned about whether Gerald R. Lane referred to white employees as
“monkeys” when they congregated under the trees, James testified that he “[didn’t]
remember [Gerald R. Lane] using the word monkey when a white employee was under
the tree.” (Doc. 64-6, p. 79.) James further testified that sometime in 2011, Gerald R.
Lane told James (and the African American employees with whom he was standing) that
“if [he] wanted to see the ghetto, [he] would look across the street.” (Doc. 67-3, p. 27.)
According to James, when one of his African American coworkers questioned Gerald R.

7

Where the harassment is allegedly committed by a supervisor with immediate authority over
the harassed employee, the plaintiff need only satisfy the first four elements of the prima facie case.
Celestine, 266 F.3d at 353.
12

Lane about his statement, Lane responded, “if you think I’m being racist, you’re damn
right I’m being racist. . . I’ve earned the right to be racist.” (Doc. 67-3, p. 27.) According
to James, sometime in 2012, Gerald R. Lane also referred to an African American finance
manager’s Native American heritage as being from the “nigga-ho tribe” during a sales
meeting. (Doc. 67-3, p. 13.) James further testified that Gerald R. Lane touched his face,
“three times . . . at most”, to ensure that he was clean shaven, but would “look[ ] but
kee[p] moving” when examining white employees. (Doc. 64-6, p. 58.) When asked
whether Gerald R. Lane ever touched the faces of white employees to ensure that they
were clean shaven, James responded, “[n]ot to my knowledge.” (Doc. 64-6, p. 58.) James
also testified that Gerald R. Lane referred to African American sales employees as “son
of a bitch,” “bitch,” and “motherfuckers.” (Doc. 67-3, pp. 11-12.) James failed to point the
Court to any other portions of his deposition in which he testified about examples of racebased harassment.
The Court finds that James has failed to present sufficient evidence to create a
genuine dispute of material fact from which a jury could conclude that the harassment
complained of affected a term, condition, or privilege of his employment. The record
before the Court contains evidence of incidents that reasonably could be characterized as
race-based: Gerald R. Lane’s reference to African American employees as “monkeys”;
Gerald R. Lane’s comparison of James to a “trained monkey”; Gerald R. Lane’s reference
to James and other African American employees standing in a group as the “ghetto”; and
Gerald R. Lanes’ reference to an African American finance manager’s Native American
heritage as the “nigga-ho tribe.” However, as reprehensible as such comments are, they

13

do not rise to the level of severity or pervasiveness required to support a hostile work
environment claim.
The mere utterance of an ethnic or racial epithet that engenders offensive feelings
in an employee, offhand comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions of employment. See
Meritor, 477 U.S. at 67; Lauderdale v. Tex. Dep’t of Criminal Justice, Inst. Div., 512 F.3d
157, 163 (5th Cir. 2007). Rather, the plaintiff must establish that the harassment
complained of was sufficiently severe or pervasive to alter the conditions of the plaintiff’s
employment and create an abusive working environment. Harris, 510 U.S. at 21.
Here, James failed to present any evidence that the harassment complained of
involved physically threatening or humiliating conduct. According to James, Gerald R.
Lane touched his face ensure he was clean shaven “three times . . . at most” over a twoyear period. While the terms “son of a bitch,” “bitch,” and “motherfucker” are offensive,
nothing in the record suggests such words should be construed as having racial
connotations. Further, James failed to present evidence that Gerald R. Lane used the
words “nigga” or “nigger” regularly. Rather, Gerald R. Lane’s“nigga ho tribe” comment
was an isolated remark that was not directed at James. While Gerald R. Lane’s use of
the terms “monkey” and “ghetto” were “racially inappropriate,”8 evidence of racially
inappropriate comments, without more, is not sufficiently severe.
More importantly, James has failed to offer sufficient evidence concerning the

8

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007) (recognizing that a
supervisor’s reference to inner-city children as “ghetto children” was “perhaps racially inappropriate”).
14

objective effect of the harassment on his work performance. Harris, 510 U.S. at 23.
Even when a hostile environment is shown, a plaintiff must establish
that the workplace environment had the effect of altering the terms and
conditions of his employment. Central to the court’s inquiry into a hostile
environment claim is whether the alleged harasser’s actions have
undermined the victim’s workplace competence, discouraged him from
remaining on the job, or kept him from advancing in his career. Title VII
is intended only to prohibit and prevent conduct ‘that is so severe and
pervasive that it destroys a protected class member’s opportunity to
succeed in the workplace.’
Sparks v. Alrod Enters., No. 3:00-CV-2110-L, 2003 U.S. Dist. LEXIS 7095, at *17 (N.D.
Tex. Apr. 28, 2003) (citing cases). Here, James does not address, let alone present
evidence to establish that, Gerald R. Lane’s conduct interfered with his work
performance.
As such, the Court finds that James has failed to present sufficient evidence to
create a dispute of material fact as to whether the harassment complained of was severe
or pervasive enough to affect a term, condition, or privilege of his employment. Compare
Walker v. Thompson, 214 F.3d 615, 619-22 (5th Cir. 2000) (holding that a hostile work
environment claim survived summary judgment where evidence demonstrated years of
inflammatory racial epithets, including “nigger” and “little black monkey”), with Johnson
v. TCB Constr. Co., 334 F. Appx. 666, 671 (5th Cir. 2009) (finding insufficient evidence
to establish a racially hostile work environment where a supervisor’s comment that the
plaintiff was just “like a damn nigger” was isolated; there was no evidence of the objective
effect of that comment on the plaintiff's work performance; and although there was
evidence that the supervisor frequently used the term “nigger,” those other comments
were not uttered in the plaintiff’s presence and there was no evidence that they affected

15

the plaintiff’s job). Accordingly, Defendants’ request that the Court dismiss James’s
hostile work environment claim on the basis of his race is GRANTED.
C.

James’s Hostile Work Environment Claim on the Basis of His
National Origin

A plaintiff may establish a Title VII violation based on national origin
discrimination creating a hostile work environment. To establish a prima facie case, the
plaintiff must prove that: (1) he is a member of a protected class; (2) he was subjected to
unwelcome harassment; (3) the harassment complained of was based on national origin;
(4) the harassment complained of affected a term, condition, or privilege of employment;
(5) the employer knew or should have known of the harassment in question and failed to
take prompt remedial action.9 Ramsey, 286 F.3d at 268 (citations omitted). Here,
Defendants contend that James failed to allege a separate and distinct national origin
discrimination claim. James failed to present any argument in opposition to Defendants’
argument.
National origin, though often confused with race, refers to “the country where a
person was born, or, more broadly, the country from which his or her ancestors came.”
Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 88 (1973). Accordingly, the EEOC
Guidelines on Discrimination Because of National Origin define national origin
discrimination “broadly as including, but not limited to, the denial of equal employment
opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because

9

As mentioned above, where the harassment is allegedly committed by a supervisor with
immediate authority over the harassed employee, the plaintiff need only satisfy the first four elements
of the prima facie case. Celestine, 266 F.3d at 353.
16

an individual has the physical, cultural or linguistic characteristics of a national origin
group.” 29 C.F.R. § 1606.1. During his deposition, James testified that he considers his
national origin to be “African American.” (Doc. 64-6, p. 96.)
James does not dispute that he was born and raised in Baton Rouge, Louisiana.
(Doc. 67-2, p. 2.) Further, nothing in the record suggests that James’s national origin is
not American.

Indeed, James failed to present any evidence regarding his or his

ancestor’s place of origin.
During his deposition, James testified that he considers his race and national
origin to be African American. (Doc. 64-6, p. 96.) Accordingly, the Court finds that
James’s national origin discrimination claim is not a separate and distinct claim. As
such, an analysis of James’s national origin claim would merely duplicate the Court’s
analysis of his race claim. See Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir.
1981) (in some contexts, national origin and racial discrimination are “so closely related
. . . as to be indistinguishable.”) When viewing the facts, it is clear that James is alleging
racial discrimination, and that his claims of discrimination on the basis of national origin
are merely superfluous. Accordingly, Defendants’ request that the Court dismiss James’s
claim that he was subjected to a hostile work environment claim on the basis of his
national origin is GRANTED.
D.

James’s Retaliation Claim

Title VII contains an anti-retaliation provision that “prohibits an employer from
discriminating against an employee or job applicant because that individual opposed any
practice made unlawful by Title VII.” Burlington N. & Santa Fe Ry. Co. v. White, 548

17

U.S. 53, 56 (2006) (internal quotations, citation, and alterations omitted). A plaintiff
establishes a prima facie case of retaliation by showing: (1) he engaged in a protected
activity; (2) an adverse employment action occurred; and (3) there was a causal link
between the protected activity and the adverse employment action. Hernandez, 670 F.3d
at 657 (citing Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 523 (5th Cir. 2008)).
In support of the motion, Defendants argue that James cannot point to sufficient
evidence to establish that an adverse employment action occurred.

An adverse

employment action is one that “a reasonable employee would have found . . . [to be]
materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington,
548 U.S. at 68 (2006); Hernandez, 670 F.3d at 657.
In opposition, James does not address Defendants’ argument that no adverse
employment action occurred. Instead, James points to his deposition, in which he
testified that, after he filed his Equal Employment Opportunity Commission Charge of
Discrimination, Gerald R. Lane made the following comments to him during a sales
meeting and on the showroom floor: :(1) “I’m worth 30 million motherfucking dollars and
you’re going to be . . . you’re going to be old and gray before you get a dime of me” (Doc.
67-3, p. 46); (2) “standing up there and trying to get my money, you think you’re going to
be a millionaire” (Doc. 67-3, p. 47). James also points to his testimony regarding a verbal
altercation between he, three African American coworkers, and Gerald R. Lane, during
which Lane allegedly verbally attacked James and his coworkers. (Doc. 67-3, pp. 49-52.)
James failed to present any other evidence.

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The Court finds that he has not pointed to sufficient evidence to create a dispute
of material fact as to the second prong of a prima facie case. Even viewing the facts in the
light most favorable to James, the Court finds that he failed to identify an act by Gerald
R. Lane, or any other employee, that would have dissuaded a reasonable employee from
making or supporting a charge of discrimination. See King v. Louisiana, 294 F. Appx. 77,
85 (5th Cir. 2008) (holding that “allegations of unpleasant work meetings, verbal
reprimands, improper work requests and unfair treatment do not constitute adverse
employment actions as . . . retaliation”); Grice v. FMC Techs., Inc., 216 F. Appx. 401, 407
(5th Cir. 2007) (holding that unjustified reprimands are considered “trivial” and not
materially adverse in the retaliation context). Indeed, James has failed to cite to any
binding case law that would require the Court to conclude otherwise. Accordingly,
Defendants’ request that the Court dismiss James’s retaliation claim is GRANTED.
E.

James’s Constructive Discharge Claim

“Constructive discharge occurs when an employee has quit [his] job under
circumstances that are treated as an involuntary termination of employment.” Haley v.
Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004).

To succeed on his

constructive discharge claim, James must show “working conditions . . . so intolerable
that a reasonable person in the employee’s position would have felt compelled to resign.”
Hypolite v. City of Houston, 493 Fed. Appx. 597, 607-608 (5th Cir. 2012) (quoting Nassar
v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d 448, 453 (5th Cir. 2012)). There must be “a
greater severity of pervasiveness or harassment than the minimum required to prove a
hostile work environment.” Id. (quoting Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444

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(5th Cir. 2011)). Therefore, courts in the Fifth Circuit consider aggravating factors
including: (1) demotion; (2) reduction in salary; (3) reduction in job responsibility; (4)
reassignment to menial or degrading work; (5) reassignment to work under a younger
supervisor; (6) badgering harassment, or humiliation by the employer calculated to
encourage the employee’s resignation; or (7) offers of early retirement or continued
employment on terms less favorable than the employee’s former status. Id. (citing
Nassar, 674 F.3d at 453). Here, Defendants argue that James cannot point to sufficient
evidence to establish these factors.
In opposition, James argues that he felt compelled to resign after a verbal
alteration with Gerald R. Lane. In support of this argument, James points to his
deposition, during which he testified about the verbal altercation between he, three
African American coworkers, and Gerald R. Lane. (Doc. 67-3, pp. 49-52.) According to
James, he and his coworkers decided to quit because it “[didn’t] look like things [at the
dealership] [were] going to get any better.” (Doc. 64-6, p. 117.) James also contends that
Gerald R. Lane kept a gun in his vehicle, and that he “had no choice but to leave or risk
bodily harm.” (Doc. 67, p. 21; Doc. 67-3, pp. 30-31.) However, James fails to point to
evidence that Gerald R. Lane physically attacked or threatened to physically attack
James, or that Gerald R. Lane displayed his gun on the day of the verbal altercation, or
that Gerald R. Lane threatened to shoot James.
As noted above, to survive summary judgment, James must present evidence of
working conditions even more egregious than those required to establish a hostile
working environment. Hypolite, 493 Fed. Appx. at 607-608. During his deposition, James

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confirmed that he was not terminated, his compensation was not reduced, he was not
suspended or demoted, and his job duties were not changed. (Doc. 64-6, pp. 111-112.)
Thus, the only factor James can rely on to meet the reasonable employee test is
“badgering harassment, or humiliation by the employer calculated to encourage the
employee’s resignation.” Id. While Gerald R. Lane’s comments were unprofessional and
boorish, such comments do not amount to conduct so intolerable that a reasonable
employee would feel compelled to resign. Further, James’s subjective belief that he “had
to leave or risk bodily harm,” without more, is insufficient to meet the extremely high
standard for a constructive discharge claim. Compare Porter v. Erie Foods Int’l, Inc., 576
F.3d 629, 640 (7th Cir. 2009) (concluding that evidence that African-American plaintiff’s
co-workers repeatedly displayed a noose and threatened violence qualifies as “egregious
for purposes of constructive discharge”), and Taylor v. W. & S. Life Ins. Co., 966 F.2d
1188, 1190-91, 1199 (7th Cir. 1992) (concluding that considerable evidence supported the
district court’s finding of constructive discharge where the plaintiff’s boss constantly
made racist comments, brandished gun, took photograph of himself holding gun to the
plaintiff’s head, and passed that photo around office), with Stover v. Hattiesburg Pub. Sch.
Dist., 549 F.3d 985, 991-92 (5th Cir. 2008) (employee failed to meet the reasonable
employee test where she claimed that she was not compensated appropriately, not given
career development opportunities, not allowed to accrue compensatory time, harassed and
discriminated against, and “excluded from prestigious retreats”). Indeed, James has
failed to cite to any binding case law that would require the Court to conclude otherwise.

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Accordingly, Defendants’ request that the Court dismiss James’s constructive discharge
claim is GRANTED.
F.

James’s Assault and Battery Claims

In Louisiana, a battery is “[a] harmful or offensive contact with a person, resulting
from an act intended to cause the plaintiff to suffer such a contact . . .” Landry v.
Bellanger, 851 So. 2d 943, 949 (La. 2003) (citing Caudle v. Betts, 512 So. 2d 389, 391 (La.
1987)). According to the Louisiana Supreme Court, the defendant’s intention need not
be malicious nor need it be an intention to inflict actual damage. Id. (citing Caudle, 512
So. 2d at 391). It is sufficient if the defendant intends to inflict either a harmful or
offensive contact without the other’s consent. Id. (citing Caudle, 512 So. 2d at 391). In
contrast, “assault is an attempt to commit a battery, or the intentional placing of another
in reasonable apprehension of receiving a battery.” La. R.S. § 14:36.
Here, James argues that Gerald R. Lane intended to touch him on his face and
buttocks, and that the touching was offensive. In support of his argument, James points
to his deposition testimony, in which he testified that Gerry R. Lane “did slap me on my
behind once.” (Doc. 67-3, p. 35.) James further testified that Gerald R. Lane touched his
face, “three times . . . at most”, to ensure that he was clean shaven. (Doc. 64-6, p. 58.)
According to James, he “flinched” when Gerald R. Lace touched his face and “wished that
[Gerald R. Lane] didn’t” touch his face. (Doc. 67-3, p. 10; Doc. 64-6, p. 61.)
In support of the motion, Defendants argue that James cannot point to sufficient
evidence to establish that Gerald R. Lane intended to make a harmful or offensive
contact. Thus, Defendants argue James’s battery claim must be dismissed. However, the

22

defendant need not form the intention that his actions be harmful or offensive. Molette
v. City of Alexandria, No. CV04-0501-A, 2005 U.S. Dist. LEXIS 44043, at *23 (W.D. La.
Sept. 30, 2005) (citing Landry, 851 So.2d at 949). Rather, in the tort liability analysis, the
element of intent is satisfied if the actor desires to “bring about a result which will invade
the interests of another in a way that the law forbids. The defendant may be liable
although intending nothing more than a good-natured practical joke, or honestly believing
that the act would not injure the plaintiff, or even though seeking the plaintiff’s own
good.” Caudle, 512 So. 2d at 391. Viewing the facts in the light most favorable to James,
the Court finds that he has pointed to sufficient evidence to establish a dispute of
material fact from which a jury could conclude that a battery was committed. Accordingly,
Defendants’ request that the Court dismiss James’s battery claim must be denied.
As it relates to his assault claim, James must establish three elements: (1) “an
intent to scare mental element”; (2) “conduct by defendant of the sort to arouse
reasonable apprehension of bodily harm”; and (3) “the resulting apprehension on the part
of the victim.” State v. Blaise, 504 So.2d 1092 (La. App. 5th Cir. 1987). Here, James
failed to address, let alone present any evidence to establish these elements. As such,
Defendants’ request that the Court dismiss James’s assault claim must be granted.
Accordingly, Defendants’ request that the Court dismiss James’s assault and
battery claims is GRANTED IN PART and DENIED IN PART.

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G.

James’s Intentional Infliction of Emotional Distress Claim

In Louisiana, in order to recover for intentional infliction of emotional distress, a
plaintiff must establish: “(1) that the conduct of the defendant was extreme and
outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3)
that the defendant desired to inflict severe emotional distress or knew that severe
emotional distress would be certain or substantially certain to result from his conduct.”
White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). In support of the motion,
Defendants argue that James cannot point to sufficient evidence to establish these
elements.
In opposition, James failed to point the Court to specific evidence to support each
prong of his intentional infliction of emotional distress claim. Instead, James generally
argues that where there is a question as to whether there was pattern of harassment,
summary judgment is inappropriate. However, James’s bare assertion that there are
genuine disputes of material fact, without more, is insufficient.

Even assuming,

arguendo, that the evidence in the record establishes that Gerald R. Lane’s conduct was
extreme and outrageous, James has failed to point the Court to any evidence whatsoever
to establish that the emotional distress suffered by him rises to the level of severe distress
required to support such a claim, or that Gerald R. Lane desired to inflict severe
emotional distress upon James or knew that severe emotional distress would be certain
or substantially certain to result from his conduct toward James. Accordingly, the Court
finds that James has failed to present sufficient evidence to establish a dispute of
material fact from which a jury could conclude that Gerald R. Lane is liable for

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intentional infliction of emotional distress. As such, Defendants’ request that the Court
dismiss James’s intentional infliction of emotional distress claim is GRANTED.
H.

James’s Remaining State Law Claim for Battery

In the absence of a surviving federal claim, and in the interest of fairness to all
parties involved and judicial economy, the Court declines to exercise jurisdiction over
James’s remaining state law claim, and will remand this matter to the Nineteenth
Judicial District Court, Parish of Baton Rouge, State of Louisiana. Enochs v. Lampasas
Cty., 641 F.3d 155, 161 (5th Cir. 2011); Beiser v. Weyler, 284 F.3d 665, 675 (5th Cir. 2002)
(noting that where “no other grounds for federal jurisdiction exist, the court must
ordinarily remand the case back to state court”); Batiste v. Island Records, Inc., 179 F.3d
217, 227 (5th Cir. 1999) (citation omitted) (the “general rule” in the Fifth Circuit “is to
decline to exercise jurisdiction over pendent state law claims when all federal claims are
dismissed or otherwise eliminated from a case prior to trial.”).
IV.

Conclusion
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 64)

is GRANTED IN PART and DENIED IN PART.
•

Defendants’ request that the Court dismiss James’s claim under La. R.S. § 23:631
is GRANTED.

Accordingly, James’s claim under La. R.S. § 23:631 is

DISMISSED.
•

Defendants’ request that the Court dismiss James’s federal and state law
discrimination claims against Gerald R. Lane, or any other individual supervisor

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or fellow employee, is GRANTED. Accordingly, James’s federal and state law
discrimination claims against Gerald R. Lane, or any other individual supervisor
or fellow employee, are DISMISSED.
•

Defendants’ request that the Court dismiss James’s claim that he was subjected
to a hostile work environment claim on the basis of his sex is GRANTED.
Accordingly, James’s hostile work environment claim on the basis of his sex is
DISMISSED.

•

Defendants’ request that the Court dismiss James’s hostile work environment
claim on the basis of his race is GRANTED. Accordingly, James’s hostile work
environment claim on the basis of his race is DISMISSED.

•

Defendants’ request that the Court dismiss James’s hostile work environment
claim on the basis of his national origin is GRANTED. Accordingly, James’s
hostile work environment claim on the basis of his national origin is DISMISSED.

•

Defendants’ request that the Court dismiss James’s retaliation claim is
GRANTED. Accordingly, James’s retaliation claim is DISMISSED.

•

Defendants’ request that the Court dismiss James’s constructive discharge claim
is GRANTED. Accordingly, James’s constructive discharge claim is DISMISSED.

•

Defendants’ request that the Court dismiss James’s assault claim is GRANTED.
Accordingly, James’s assault claim is DISMISSED.

•

Defendants’ request that the Court dismiss James’s intentional infliction of
emotional distress claim is GRANTED. Accordingly, James’s intentional infliction
of emotional distress claim is DISMISSED.

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