Thompson v. Lane et al

Filing 99

Ruling and Order GRANTING IN PART and DENYING IN PART 65 Defendants Motion for Summary Judgment. Defendants request that the Court dismiss Thompsons federal and state law discrimination claims against Lane, or any other individual supervisor or fellow employee, is GRANTED. Defendants request that the Court dismiss Thompsons claim under La. R.S. § 23:631 is GRANTED. Defendants request that the Court dismiss Thompsons claim that he was subjected to a hostile work environment cla im on the basis of his sex is GRANTED. Defendants request that the Court dismiss Thompsons hostile work environment claim on the basis of his race is DENIED. Defendants request that the Court dismiss Thompsons hostile work environment claim on the basis of his national origin is GRANTED. Defendants request that the Court dismiss Thompsons retaliation claim is GRANTED. Defendants request that the Court dismiss Thompsons constructive discharge claim is GRANTED. Defendants request t hat the Court dismiss Thompsons battery claim is DENIED. Defendants request that the Court dismiss Thompsons assault claim is GRANTED. Defendants request that the Court dismiss Thompsons intentional infliction of emotional distress claim is GRANTED. Signed by Chief Judge Brian A. Jackson on 9/29/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BRIAN THOMPSON

CIVIL ACTION

VERSUS
GERALD LANE, ET AL.

NO.: 12-00526-BAJ-SCR

RULING AND ORDER
Before the Court is Defendants’ Motion for Summary Judgment (Doc. 65),
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 Brian Thompson’s
(“Thompson”) claims. Thompson opposes the motion. (Doc. 67.) Defendants filed a reply
memorandum. (Doc. 77.) 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. 47.)

I.

Background
A.

Thompson’s Complaint2

Thompson 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 Thompson, an African
American male, 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, Thompson
alleges that dealership owner, Gerald R. Lane (“Lane”), created a hostile work
environment in which Thompson was subjected to discriminatory comments, namecalling, abusive language, intimidation, and unwelcome physical contact. According to
Thompson, Defendants also retaliated against him in response to his complaints of
unlawful discrimination. Thompson’s Complaint also alleges that Defendants actions
amounted to intentional infliction of emotional distress. Thompson 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

Thompson 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, Thompson filed his amended Complaint on September 11, 2012. (Doc.
6.)
3

A previous ruling by this Court indicated that Thompson also asserted a claim under 42 U.S.C.
§ 1981. (Doc. 95, p. 1.) However, a review of Thompson’s Complaint reveals that he seeks punitive
damages under 42 U.S.C. § 1981(a) only, and did not allege a claim under 42 U.S.C. § 1981. Under the
terms of the Civil Rights Act of 1991, punitive damages awards are available in claims under Title VII.
42 U.S.C. § 1981(a)(b)(1). It is well established, however, that Title VII and 42 U.S.C. § 1981 are two
separate and distinct causes of action. Green v. Shannon Med. Ctr., No. 6:04-CV-066-C, 2006 U.S. Dist.
LEXIS 4967, at *8 (N.D. Tx. Feb. 9, 2006).
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, Lane owned a majority interest in Gerry Lane
Enterprises.

•

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.
Lane’s son, Eric Lane and Cedric Patton (African American) now own minority
interests in those dealerships.

•

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

•

The sales force typically comprises anywhere between twenty and thirty
individuals.

•

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

•

Thompson initially worked for Gerry Lane Buick GMC.

•

During his initial term of employment, Thompson experienced no discrimination
or harassment.

•

Thompson began his second stint working for a Gerry Lane dealership - this time
for Gerry Lane Chevrolet - as a salesperson in May 2011.

•

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

•

As part of this process, Thompson received various policies governing the terms of
his employment.
On April 20, 2012, Thompson’s counsel sent a letter to the Company and Lane
indicating that Thompson intended to pursue legal claims for harassment and
discrimination.

•

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, Thompson 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

•

Subsequently, Terry Bell (the individual handling human resources for Gerry Lane
Enterprises) issued a written memorandum in which he instructed Thompson to
report any retaliation to him.

•

Gerry Lane Chevrolet was a high-pressure sales environment.

•

Gerry Lane enforced a grooming policy for all employees who interacted with
customers.

•

Lane did not want employees congregating.

•

Because Lane did not permit employees at the dealership to congregate together
during work hours, he would approach and break up employees, and tell them that
they “could not sell a car to each other.”

•

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

•

Lane never called Thompson a “nigger.”

•

Lane never told Thompson to leave his premises.

•

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

•

Lane did not brandish a gun on June 21, 2012.
C.

Defendants’ Motion for Summary Judgment

As to the instant motion, Defendants seek an order from this Court dismissing
Thompson’s claims. Defendants contend that Thompson is precluded from asserting
federal or state law discrimination claims against individual supervisors. Defendants
further argue that Thompson cannot point to sufficient evidence to establish his
discrimination claims on the basis of his sex, national origin, or race. Defendants also
contend that Thompson cannot point to sufficient evidence to establish his retaliation,
constructive discharge, intentional infliction of emotional distress, or assault and battery,

4

or unpaid wages claims. Accordingly, Defendants argue that summary judgment is
warranted.
Thompson 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. Thompson 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, Thompson contends that there are genuine disputes of material
fact related to his race and sex discrimination claims, as well as his retaliation,
constructive discharge, intentional infliction of emotional distress, and assault and
battery claims. Accordingly, Thompson contends that Defendants’ motion must be
denied. Thompson does not make any specific arguments related to his national origin
discrimination claim.
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).

5

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
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.

6

III.

Analysis
As an initial matter, as noted above, Thompson 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). Thompson also
concedes that he cannot point to sufficient evidence to establish his unpaid wages claim.
Accordingly, Defendants’ request that the Court dismiss Thompson’s federal and state
law discrimination claims against Lane, or any other individual supervisor or fellow
employee, as well as his unpaid wages claim is GRANTED.
A.

Thompson’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 (1) he belongs to a protected group; (2) he 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; and (5) the employer

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, Thompson’s claims under Title VII and the Louisiana Employment
Discrimination Law shall be jointly addressed and analyzed.
7

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
Thompson 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
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 opposition to the motion, Thompson contends that he was subjected to sexual
harassment by Lane and Garafola. A review of Thompson’s Complaint reveals his

8

allegation that Lane “personally places his hands on employees and invades their
personal space and personally slapped Plaintiff Thompson on the buttocks on the
showroom floor in front of customers and employees.” (Doc. 6, p. 5.) Noticeably absent
from his Complaint, however, are any allegations related to Garafola’s actions.
In his Equal Employment Opportunity Commission (“EEOC”) Charge of
Discrimination, Thompson alleged that Garafola “subjects me and some of the other men
to regular homosexual advances, innuendo and jokes that create an extremely
uncomfortable work environment.” (Doc. 6-1, p. 2.) However, as noted in the Court’s
previous Ruling and Order (Doc. 95), Thompson failed to identify Garafolo in his
Complaint. (Doc. 6.) Further, Thompson failed to allege any facts that would support a
claim for sexual harassment, based on Garafola’s actions. (Doc. 6.) Indeed, the only
sexual harassment allegations contained in his Complaint are based on alleged actions
of Lane. (Doc. 6, p. 5.) Thompson failed to cite, nor has the Court identified, any binding
case law that would permit the Court to consider factual allegations that are not
contained in his Complaint, and thus, not before the Court. Accordingly, the Court shall
limit its analysis to Thompson’s sexual harassment claim on the basis of Lane’s actions.
In opposition to the motion, Thompson contends that Lane inappropriately touched
him on his buttocks, which made him feel “violated.” In support of this contention,
Thompson points to his deposition, in which he testified that Lane “slapped [him] on the
butt” and that he “felt violated.” (Doc. 67-3, pp. 3-6.) It is unclear from the evidence
submitted by Thompson exactly when or how often Lane touched his buttocks. Thompson
failed to point to any other evidence in support of his sexual harassment claim.

9

Simply put, Thompson 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. Even viewing the facts in the
light most favorable to Thompson, Lane’s act simply does not approach the level of severe
and pervasive conduct that would “destroy [Thompson’s] opportunity to succeed in the
workplace.” Shepard v. Comptroller of Public Accounts of State of Tx., 168 F.3d 871, 87475 (5th Cir. 1999) (evidence that a co-worker had made several sexually suggestive
comments, often tried to look down the plaintiff’s clothing, touched and rubbed the
plaintiff’s arm, and twice invited her to sit on his lap during office meetings was not
sufficiently severe to be actionable under Title VII). Indeed, when compared to cases in
which courts in this Circuit have denied summary judgment or afforded relief, Lane’s
actions were simply not frequent or serious enough to alter the conditions of Thompson’s
employment. 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). Accordingly, Defendants’

10

request that the Court dismiss Thompson’s claim that he was subjected to a hostile work
environment claim on the basis of his sex is GRANTED.
B.

Thompson’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
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.6 Ramsey, 286 F.3d at
268. Here, Defendants argue that Thompson cannot point to sufficient evidence to
establish that the harassment complained of was based on race, or that it affected a term,
condition or privilege of his employment.
In opposition, Thompson argues that Lane subjected him to unwelcome harassment
on the basis of his race that was severe and pervasive. In support of this contention,
Thompson points to his deposition, in which he testified that Lane referred to him as a
“runaway slave” (Doc. 67-3, p. 2; Doc. 67-3, p. 17); compared him to a “blind monkey” (Doc.
67-3, p. 17); subjected him to unwanted “face checks” to ensure he was clean shaven on
6

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.
11

two occasions, even though he did not have facial hair (Doc. 67-3, pp. 26-28); referred to
him and approximately four other African American employees as “ghetto” and asked
them, “[w]here in the hell do ya’ll think ya’ll at? The damn ghetto? If I wanted to see the
ghetto, I’d go look over my back fence.” (Doc. 67-3, pp. 20-22, 42); and exclaimed, “Am I
being racist? You damn right I am. I’ve earned the right to be.” to the same group (Doc.
67-3, p. 22); questioned African American employees during a sales meeting about “Black
Friday” by exclaiming, “Ya’ll black people think that’s the day that ya’ll have money to
go shopping. You think that’s ya’ll’s day.” I bet y’all think Black Friday [is] for ya’ll, for
black people,” and then turned to Thompson and said, “I bet you do a lot of shopping on
Black Friday.” (Doc. 67-3, p. 35); and referred to an African American finance manager’s
Native American heritage as being from the “nigga-ho tribe” in a sales meeting (Doc. 67-3,
p. 24; Doc. 65-6, p. 26). Thompson also points to the deposition testimony of a white coworker who testified that in his three weeks with the Company, he heard Lane use the
word “ghetto” while “breaking up employees” “at least three times” (Doc. 67-4, p. 3); of an
African American co-worker who testified that Lane justified his accusation that the coworker was being untruthful because the co-worker is the “same color as Obama” (Doc.
67-5, p. 18); and of an African American co-worker who testified that Lane only checked
African American employees faces to ensure they were clean shaven (Doc. 67-5, p. 10).
Viewing the facts in the light most favorable to Thompson, the Court finds that he
has presented sufficient evidence to establish a genuine dispute of material fact from
which a jury could conclude that the harassment complained of was based on race. Such
a conclusion is underscored by the deposition testimony of Thompson’s white co-worker,

12

who testified that he “never heard [Lane] talk to the white salespeople like the black
salespeople. Definitely. He never said the same things to us that he would say to the
others.” (Doc. 67-10, p. 3.)
Viewing the facts in the light most favorable to Thompson, the Court also finds that
he has presented sufficient evidence to establish a dispute of material fact from which a
jury could conclude that the harassment was severe and pervasive. Indeed, the evidence
presented by Thompson suggests more than just a handful of racially-charged comments.
Rather, the evidence presented supports the conclusion that Lane subjected Thompson
to race-based insults, ridicule, and intimidation on a regular basis. Lauderdale v. Tex.
Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th Cir. 2007) (“Frequent incidents of
harassment, though not severe, can reach the level of ‘pervasive,’ thereby altering the
terms, conditions, or privileges of employment such that a hostile work environment exists.”).
Further, where, as here, the plaintiff has presented evidence of a pattern of racebased harassment, it is appropriate for the Court to consider incidents of non-race-based
harassment. Compare WC&M Enters, Inc., 496 F.3d at 400 (determining that a fact
finder could reasonably conclude that a co-worker’s frequent banging on the glass
partition of the plaintiff’s office was motivated by animus related to the plaintiff’s
national origin because the same co-worker had repeatedly called the plaintiff “Arab” for
approximately one year), with Hernandez, 670 F.3d at 654 (declining to consider incidents
of harassment not based on race where there was no evidence that the conduct was part
of a pattern of race-based harassment). The Court finds that when evidence of Lane’s
race-based harassment of Thompson is taken together with evidence of the non-race-

13

based harassment, it is reasonable to conclude that the harassment complained of was
severe or pervasive enough to affect a term, condition, or privilege of Thompson’s
employment. Accordingly, Defendants’ request that the Court dismiss Thompson’s hostile
work environment claim on the basis of his race is DENIED.
C.

Thompson’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.7 Ramsey, 286 F.3d at 268 (citations omitted). Here,
Defendants contend that Thompson failed to allege a separate and distinct national origin
discrimination claim. Thompson failed to present any argument or evidence 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
7

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.
14

opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because
an individual has the physical, cultural or linguistic characteristics of a national origin
group.” 29 C.F.R. § 1606.1.
Nothing in the record suggests that Thompson’s national origin is not American.
Indeed, Thompson failed to present any evidence regarding his or his ancestor’s place of
origin.
Accordingly, the Court finds that Thompson’s national origin discrimination claim
is not a separate and distinct claim. As such, an analysis of Thompson’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 Thompson is alleging race discrimination, and that his
claim of discrimination on the basis of national origin is superfluous. Accordingly,
Defendants’ request that the Court dismiss Thompson’s claim that he was subjected to
a hostile work environment claim on the basis of his national origin is GRANTED.
D.

Thompson’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
U.S. 53, 56 (2006) (internal quotations, citation, and alterations omitted); 42 U.S.C. §
2000e-3(a). 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

15

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)). Here, Defendants argue that Thompson cannot point to sufficient
evidence to meet these elements.
In opposition, Thompson points to his deposition, in which he testified that Lane
“constantly [brought] up” his lawsuit against the Company during sales meetings and
would “badger us in the meeting in front of everybody.” (Doc. 67-3, p. 34.) Specifically,
Thompson testified that Lane “badgered” Thompson and the other African American
employees who filed suit by exclaiming:
A:

For those of ya’ll in this lawsuit trying to get money from
insurance from me, I’m worth 35 million motherfucking dollars,
and before you see a penny of my money, you’ll be an old ass man.
He would say - he said to us - he said to us, it was after the lawsuit
was filed, that he was back healthy and he was going to be a mean
motherfucker, especially to some of us. And that’s when he also
referred to me as the ringleader and called me a bitch after the
lawsuit was filed.

(Doc. 67-3, p. 34.) Thompson also testified that “there were times that Mr. Lane would
just stand on the balcony and just stand there and stare at us. I mean, just beam to the
point to where you were uncomfortable.”(Doc. 67-3, p. 46); that Lane asked him and the
other African American employees who filed suit “why don’t ya’ll just quit . . . why are
ya’ll still here?” (Doc. 67-3, p. 48); that the working environment “made it almost
impossible” to sell cars (Doc. 67-3, p. 48); and that he “was kind of fearful of being there”
(Doc. 67-3, p. 48).

16

Even viewing the facts in the light most favorable to Thompson, 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 of retaliation. 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); DeHart v. Baker Hughes Oilfield
Operations, Inc., 214 F. Appx. 437, 442 (5th Cir. 2007) (holding that a written disciplinary
warning for insubordination and being argumentative would not have “dissuaded a
reasonable worker from making or supporting a charge of discrimination”); Gallentine v.
Hous. Auth., 919 F. Supp. 2d 787, 807 (E.D. Tex. 2013) (holding that a write-up, which
was classified as a verbal warning, cannot satisfy the second prong of a prima facie case
of retaliation). Indeed, Thompson has failed to cite to any binding case law that would
require the Court to conclude otherwise. Accordingly, Defendants’ request that the Court
dismiss Thompson’s retaliation claim is GRANTED.
E.

Thompson’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, Thompson must show “working conditions . . . so intolerable
that a reasonable person in the employee’s position would have felt compelled to resign.”

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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
(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 Thompson cannot point to
sufficient evidence to establish these factors.
In opposition, Thompson argues that he felt compelled to resign after a verbal
alteration with Lane. In support of this argument, Thompson points to his deposition,
during which he testified about the verbal altercation between he, three African American
co-workers, and Lane on June 21, 2012. (Doc. 67-3, p. 30.) According to Thompson, Lane
“approached [Thompson] and invaded [his] personal space and put his hand in
[Thompson’s] face and called [him] the ringleader and called [him] a bitch.” (Doc. 67-3,
p. 30.) Thompson failed to point to evidence that Lane physically attacked or threatened
to physically attack Thompson. Further also testified that he “knew [Lane] carried a
gun.” (Doc. 67-3, p. 30.) However, Thompson also failed to point to any evidence that

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Lane displayed his gun on the day of the verbal altercation, or that Lane threatened to
shoot Thompson.
As noted above, to survive summary judgment, Thompson 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,
Thompson 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. 65-6, pp. 5859.) Thus, the only factor Thompson 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 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, Thompson’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 a photograph of himself holding gun to the plaintiff’s
head, and passed that photo around office), with Stover v. Hattiesburg Pub. Sch. Dist., 549

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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, Thompson has
failed to cite to any binding case law that would require the Court to conclude otherwise.
In sum, the Court concludes that Thompson has failed to present sufficient
evidence to establish a dispute of material fact from which a jury could conclude that he
was constructively discharged. Accordingly, Defendants’ request that the Court dismiss
Thompson’s constructive discharge claim is GRANTED.
F.

Thompson’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.
In support of the motion, Defendants argue that Thompson cannot point to
sufficient evidence to establish his assault and battery claims. In opposition, Thompson
contends that Lane intended to touch him on his face and buttocks, and that the touching

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was unwanted. In support this contention, Thompson points to his deposition testimony,
in which he testified that Lane touched his face twice and “slapped” him on his buttocks
once, and that he “didn’t like it”. (Doc. 67-3, pp. 3, 4, 25-28; Doc. 65-6, p. 14.)
In support of the motion, Defendants argue that Thompson cannot point to
sufficient evidence to establish that Lane intended to make a harmful or offensive contact.
Thus, Defendants argue that Thompson’s battery claim must be dismissed. However, the
actor 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 actor 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 Thompson, 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 Thompson’s battery claim must be denied.
As it relates to his assault claim, Thompson 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, Thompson

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failed to address, let alone present any evidence to establish these elements. As such,
Defendants’ request that the Court dismiss Thompson’s assault claim must be granted.
Accordingly, Defendants’ request that the Court dismiss Thompson’s assault and
battery claims is GRANTED IN PART and DENIED IN PART.
G.

Thompson’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 Thompson cannot point to sufficient evidence to establish these
elements.
In opposition, Thompson failed to point the Court to specific evidence to support
each prong of his intentional infliction of emotional distress claim. Instead, Thompson
generally argues that where there is a question as to whether there was pattern of
harassment, summary judgment is inappropriate. However, Thompson’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 Lane’s conduct was
extreme and outrageous, Thompson 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 Lane desired to inflict severe
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emotional distress upon Thompson or knew that severe emotional distress would be
certain or substantially certain to result from his conduct toward Thompson. Accordingly,
the Court finds that Thompson has failed to present sufficient evidence to establish a
dispute of material fact from which a jury could conclude that Lane is liable for
intentional infliction of emotional distress. As such, Defendants’ request that the Court
dismiss Thompson’s intentional infliction of emotional distress claim is GRANTED.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 65)

is GRANTED IN PART and DENIED IN PART.
•

Defendants’ request that the Court dismiss Thompson’s federal and state law
discrimination claims against Lane, or any other individual supervisor or fellow
employee, is GRANTED.

Accordingly, Thompson’s federal and state law

discrimination claims against Lane, or any other individual supervisor or fellow
employee, are DISMISSED.
•

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

•

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

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