Postell v. Lane et al

Filing 102

RULING AND ORDER granting in part and denying in part 73 Plaintiff Brian Postell's Motion for Partial Summary Judgment. Postell's request that the Court preclude Defendants from asserting the Faragher/Ellerth defense in an attempt to avo id liability for Gerald R. Lane's acts is GRANTED. Accordingly, Defendants are PRECLUDED from asserting the Faragher/Ellerth defense in response to Postell's allegations regarding the acts of Gerald R. Lane. Postell's request that the Court preclude Defendants from asserting the Faragher/Ellerth defense in an attempt to avoid liability for the acts ofother employees is DENIED AS MOOT. Signed by Chief Judge Brian A. Jackson on 09/10/2014. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DWAYNE POSTELL

CIVIL ACTION

VERSUS
GERALD LANE, ET AL.

NO.: 12-00527-BAJ-SCR

RULING AND ORDER
Before the Court is Plaintiff Dwayne Postell’s Motion for Partial Summary
Judgment (Doc. 73), filed by Plaintiff Dwayne Postell (“Postell”), 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. 74.)

Oral argument is not necessary.

Jurisdiction is proper, pursuant to 28 U.S.C. § 1331. For the reasons stated herein,
Postell’s motion is GRANTED IN PART and DENIED IN PART.
I.

Background
Postell 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”), the Louisiana
Employment Discrimination Law, La. R.S. § 23:301, et seq. and 42 U.S.C. § 1981.
1

Following Defendant Gerald R. Lane’s May 2013 death, Defendant Eric Lane was named as a
Defendant in his capacity as the Representative of the Succession of Gerald R. Lane. (Doc. 52.)
2

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

Postell alleges that Defendants discriminated against him on the basis of his race,
national origin, and sex and constructively discharged him from his sales
representative position at Gerry Lane Chevrolet in Baton Rouge, Louisiana.
Specifically, Postell alleges that dealership owner, Gerald R. Lane, created a hostile
work environment in which Postell was subjected to discriminatory comments, namecalling, racial slurs, abusive language, intimidation, and unwelcome physical contact.
Postell further alleges that Defendants are liable for intentional infliction of emotional
distress and assault and battery. According to Postell, Defendants also retaliated
against him in response to his complaints of unlawful discrimination.
As to the instant motion, Postell 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. Postell also contends that Defendants cannot point to sufficient
evidence to establish either prong of the two-prong Faragher/Ellerth defense. Thus,
Postell argues that Defendants must be precluded from asserting the defense.
Defendants

concede

that

they

are

precluded

from

asserting

the

Faragher/Ellerth defense in response to Postell’s allegations regarding the acts of
Gerald R. Lane. Defendants argue, however, that the Faragher/Ellerth defense does
not apply to the only other bad actor identified by Postell in his motion, Wayne
Garafola (“Garafola”), because Garafolo was not a supervisor. Accordingly, Defendants
argue that the Faragher/Ellerth defense is inapplicable, and Postell’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

3

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 noted above, Defendants do not oppose Postell’s motion as it relates to the
alleged acts of Gerald R. Lane. Indeed, Defendants concede that they are precluded
from asserting the Faragher/Ellerth defense in response to Postell’s allegations
regarding the acts of Gerald R. Lane because he was a proxy for the Company. (Doc.
74, p. 6.); see also Ackel, 339 F.3d at 383-84. Accordingly, Postell’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.
In support of the motion, Postell argues that he was also subject to sexual
harassment by Gerald R. Lane’s personal assistant, Garafolo. However, a review of
Postell’s Amended Complaint3 reveals that Postell failed to identify Garafolo in his
Amended Complaint. (Doc. 6.) Indeed, the only allegations contained in his Amended
Complaint are based on the actions of Gerald R. Lane. (Doc. 6.) Because Postell has
3

Postell 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, Postell filed an Amended Complaint on September 11, 2012. (Doc. 6.)
5

failed to identify, or allege harassment claims against, any other employees, the Court
need not consider whether there are genuine disputes of material fact as to one or more
prongs of the two-prong Faragher/Ellerth defense. Accordingly, Postell’s request that
the Court preclude Defendants from asserting the Faragher/Ellerth defense in an
attempt to avoid liability for the acts of other employees is DENIED AS MOOT.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff Brian Postell’s Motion for Partial

Summary Judgment (Doc. 73) is GRANTED IN PART and DENIED IN PART.
•

Postell’s request that the Court preclude Defendants from asserting the
Faragher/Ellerth defense in an attempt to avoid liability for Gerald R.
Lane’s acts is GRANTED. Accordingly, Defendants are PRECLUDED
from asserting the Faragher/Ellerth defense in response to Postell’s
allegations regarding the acts of Gerald R. Lane.

•

Postell’s request that the Court preclude Defendants from asserting the
Faragher/Ellerth defense in an attempt to avoid liability for the acts of
other employees is DENIED AS MOOT.
Baton Rouge, Louisiana, this 10th day of September, 2014.

___________________________________________________________________________________________________________________

BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
6