Postell v. Lane et al

Filing 106

RULING AND ORDER granting in part and denying part 72 Defendants' Motion for Summary Judgment. Defendants' request that the Court dismiss Postell's claim under La. R.S. § 23:631 is GRANTED. Defendants' request that the Co urt dismiss Postell's federal and state law discrimination claims against Lane, or any other individual supervisor or fellow employee, is GRANTED. Defendants' request that the Court dismiss Postell's claim that he was subjected to a h ostile work environment claim on the basis of his sex is GRANTED. Defendants' request that the Court dismiss Postell's hostile work environment claim on the basis of his race is DENIED. Defendants' request that the Court dismiss Post ell's hostile work environment claim on the basis of his national origin is GRANTED. Defendants' request that the Court dismiss Postell's retaliation claim is DENIED. Defendants' request that the Court dismiss Postell's bat tery claim is DENIED. Defendants' request that the Court dismiss Postell's assault claim is GRANTED. Defendants' request that the Court dismiss Postell's intentional infliction of emotional distress claim is GRANTED. Signed by Chief Judge Brian A. Jackson on 09/30/2014. (NLT)

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 Defendants’ Motion for Summary Judgment (Doc. 72),
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 Dwayne
Postell’s (“Postell”) claims. Postell opposes the motion. (Doc. 75.) Defendants filed a
reply memorandum. (Doc. 83.) 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.
I.

Background
A.

Postell’s Complaint2

Postell filed this employment discrimination lawsuit pursuant to Title VII of the

1

Defendant Eric Lane is named as a Defendant in his capacity as the Representative of the
Succession of Gerald R. Lane. (Doc. 52.)
2

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

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 Postell alleges that
Defendants discriminated against him on the basis of his national origin, race, and sex.
Specifically, Postell alleges that dealership owner, Gerald R. Lane (“Lane”), and his
assistant, Wayne Garafola (“Garafola”), created a hostile work environment in which
Postell was subjected to discriminatory comments, name-calling, abusive language,
intimidation, lewd comments, and unwelcome physical contact. According to Postell,
Defendants also retaliated against him in response to his complaints of unlawful
discrimination. Postell’s Complaint also alleges that Defendants actions amounted to
intentional infliction of emotional distress. Postell 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.
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.

3

A previous ruling by this Court indicated that Postell also asserted a claim under 42 U.S.C. §
1981. (Doc. 102, p. 1.) However, a review of Postell’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.
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, Postell 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.
2

•

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 is typically comprised of twenty to thirty individuals.

•

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

•

Postell was born in Gainesville, Florida and lived in Florida and Georgia before
moving to Baton Rouge in 1998.

•

Postell is African-American.

•

On to May 4, 2004, Postell began working for Gerry Lane Enterprises as a sales
representative.

•

Prior May 2004, Postell had never worked in automotive sales.

•

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

•

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

•

In these materials, harassment is discussed in detail and strictly prohibited by
anyone in the workplace.

•

Postell received updated versions of these materials in 2007.

•

Diane Trask, Avery Stokes, and Kendrick Thomas, all of whom are AfricanAmerican, were generally the top sales representatives according to Postell.

•

Mr. Lane had strict rules at the Dealership throughout Postell’s term of
employment; for instance, sales representatives were: (1) required to wear a
shirt and tie and be clean-shaven; (2) not allowed to congregate; (3) not allowed
to park outside of designated areas and (4) required to be at the daily sales
meetings on time.

•

On April 24, 2012, opposing counsel sent a letter to the Company and Mr. Lane
indicating that Postell intended to pursue legal claims for harassment and
discrimination.

•

In a written memorandum provided by Terry Bell (the individual responsible for
3

handling human resources for Gerry Lane Enterprises), he instructed Postell to
report any retaliation to him.
•

Michelle Rhodes (an employee who worked in the service department) alleged
that Postell referred to her as an “ass” to a customer when dealing with an issue
regarding a tire warranty.

•

This incident was investigated by Steve Worth, the then new human resources
representative.

•

Following the completion of the investigation, Postell was suspended for three
days beginning on April 10, 2013.

•

The Dealership has hired numerous African-Americans to work in sales since
Postell’s separation.

•

Postell usually worked the “Angola Rodeo” at the Louisiana State Penitentiary
for a single weekend in April, and on four Sundays in October, principally
selling programs and running errands.

•

For this work, Postell was paid $10.00 per hour and interacted with prison
employees, which could generate sales leads.

•

Postell was provided two free tickets for each session. Some time in 2011, he
sold his tickets to the rodeo to an individual who came to the Dealership looking
for free tickets.

•

When management learned of his actions, Postell was immediately told that
such conduct was improper, and he was required to turn in the proceeds from
the sale of the tickets.

•

Postell 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
Postell’s claims. Defendants contend that Postell is precluded from asserting federal
or state law discrimination claims against individual supervisors. Defendants further
argue that Postell cannot point to sufficient evidence to establish his discrimination

4

claims on the basis of his sex, national origin, or race. Defendants also contend that
Postell cannot point to sufficient evidence to establish his retaliation, intentional
infliction of emotional distress, or assault and battery, or unpaid wages claims.
Accordingly, Defendants argue that summary judgment is warranted.
Postell 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. Postell 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, Postell contends that there are genuine disputes of
material fact related to his race and sex discrimination claims, as well as his
retaliation, intentional infliction of emotional distress, and assault and battery claims.
Accordingly, Postell contends that Defendants’ motion must be denied. Postell 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,

5

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
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, Postell concedes that he cannot point to

sufficient evidence to establish his unpaid wages claim. Accordingly, Defendants’
request that the Court dismiss Postell’s unpaid wages claim is GRANTED.
A.

Postell’s Federal and State Law Discrimination Claims
Against Individual Supervisors or Fellow Employees

In support of the motion, Defendants contend that Postell is precluded from
asserting federal or state law discrimination claims against individual supervisors.
Rather, relief under Title VII or the Louisiana Employment Discrimination Law is only
available against an employer. Postell failed to present any argument, or point to any
evidence, in opposition to Defendants’ argument.
It is well established that relief under Title VII 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) (quoting Foley v. Univ.
of Houston Sys., 355 F.3d 333, 340 n. 8 (5th Cir. 2003)). It is also well established that
“[L]ouisiana’s antidiscrimination law provides no cause of action against individual
employees, only against employers.” Mitchell v. Tracer Construction Co., et al., 256 F.
Supp. 2d 520, 525 (M.D. La. 2003); Johnson v. Acosta, No. 10-1756, 2010 U.S. Dist.
LEXIS 109032, at *15 (E.D. La. Oct. 12, 2010) (“It is equally well established that
‘Louisiana’s antidiscrimination law provides no cause of action against individual
employees, only against employers.’”); see also La. R.S. 23:303(A).

Accordingly,

Defendants’ request that the Court dismiss Postell’s federal and state law
discrimination claims against Gerald R. Lane, or any other individual supervisor or
7

fellow employee, is GRANTED.
B.

Postell’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 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 Postell 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

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, Postell’s claims under Title VII and the Louisiana Employment Discrimination
Law shall be jointly addressed and analyzed.
8

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, Postell contends that he was subjected to sexual
harassment by Lane and Garafola. A review of Postell’s Complaint reveals his
allegation that Lane “personally places his hands on employees and invades their
personal space and has tap[ped] employees on the buttocks and genitalia.” (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, Postell 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

9

previous Ruling and Order, Postell failed to identify Garafolo in his Complaint. (Doc.
102, p. 5.) Further, Postell 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, pp. 4-5.) Postell 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 Postell’s sexual harassment claim on the basis of Lane’s
actions.
In opposition to the motion, Postell contends that Lane “tapped” him in his
genital area. In support of this contention, Postell points to his deposition, in which
he testified that Lane “sac-tapped” him in the genital area once. (Doc. 76-1, p. 76.)
According to Postell, he “doubled over.” (Doc. 76-1, p. 76.) From that point forward,
Postell was “on the lookout” for Lane each time Lane “tr[ied] to sac-tap [him].” (Doc.
76-1, p. 76.) It is not clear from Postell’s testimony how many times he alleges Lane
attempted to touch his genitals. Postell also contends that Lane inappropriately
touched him on his buttocks. However, Postell failed to point the Court to any evidence
to support this contention. Postell failed to point to any other evidence in support of
his sexual harassment claim.
Simply put, Postell 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

10

light most favorable to Postell, Lane’s act simply does not approach the level of severe
and pervasive conduct that would “destroy [Postell’s] opportunity to succeed in the
workplace.” Shepard v. Comptroller of Public Accounts of State of Tx., 168 F.3d 871,
874-75 (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
Postell’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’ request that the Court dismiss Postell’s claim that he was
subjected to a hostile work environment claim on the basis of his sex is GRANTED.
C.

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

A plaintiff may establish a Title VII violation based on race discrimination
11

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 Postell 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, Postell argues that Lane subjected him to unwelcome harassment
on the basis of his race that was severe and pervasive. In support of this contention,
Postell points to his deposition, in which he testified he heard Lane tell African
American sales employees, “This is my plantation. That’s my fucking cotton. Now go
out there and pick it.” (Doc. 76-1, p. 53); told African American sales employees, “I ain’t
no damn FEMA ticket.” (Doc. 76-1, p. 60); compared African American sales employees
to the low income, predominately African American neighborhood behind the
dealership, which he referred to as the “ghetto” (Doc. 76-1, pp. 60-61); yelled at Postell
to “go tell them goddamn monkeys to get out from under those trees and go sell some

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.
12

fucking cars.” in reference to a group of predominately African American sales
employees (Doc. 76-1, p. 31); exclaimed that the six African American high school
students who were charged with attempted murder after assaulting a white high
school student in a racially-charged criminal case in Jena, Louisiana (commonly
referred to as the “Jena Six”) “should be hung from the trees” (Doc. 76-1, p. 35);
referred to an African American employee’s Native American heritage as being from
the “nigga-ho tribe” in a sales meeting ((Doc. 76-1, pp. 33, 53); and subjected him and
other African American employees to “face checks” to ensure they were clean shaven,
but did not subject white employees to such checks (Doc. 76-1, p. 17-20). According to
Postell, Lane frequently made race-based comments:
A:

. . . if he didn’t say something once a day, it was once every other
day. If he didn’t say it every other day, he said it once a week. Mr.
Lane was saying - it is easier to tell you what he didn’t say than
what he did say.

(Doc. 76-1, p. 53.)
Viewing the facts in the light most favorable to Postell, 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 Postell’s white coworker, 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. 76-16, p. 3.)
Viewing the facts in the light most favorable to Postell, the Court also finds that
he has presented sufficient evidence to establish a dispute of material fact from which
13

a jury could conclude that the harassment was severe and pervasive. Indeed, the
evidence presented by Postell suggests more than just a handful of racially-charged
comments.

Rather, the evidence presented supports the conclusion that Lane

subjected Postell 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-racebased 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 Postell is taken together with evidence of
the non-race-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 Postell’s employment. Accordingly, Defendants’ request that the Court dismiss
Postell’s hostile work environment claim on the basis of his race is DENIED.

14

D.

Postell’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 Postell failed to allege a
separate and distinct national origin discrimination claim. Postell 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 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 Postell’s national origin is not American.
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.
15

Indeed, Postell failed to present any evidence regarding his or his ancestor’s place of
origin. Rather, when questioned about his national origin claim, Postell testified as
follows:
Q:

African American, right?

A:

I’m American. I’m black.

Q:

Okay. But you - the claims you’re bringing in this case is you’re
saying that you were harassed and discriminated against because
of your race and your national origin, African American. Is that is that your understanding of what you’re suing us for?

A:

Yes, right.

(Doc. 76-1, p. 56.)
Accordingly, the Court finds that Postell’s national origin discrimination claim
is not a separate and distinct claim. As such, an analysis of Postell’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 Postell 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 Postell’s claim that he was subjected to a
hostile work environment claim on the basis of his national origin is GRANTED.
E.

Postell’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,
16

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 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
Postell cannot point to sufficient evidence to establish that an adverse employment
action occurred or a causal link between the protected activity and the adverse
employment action. 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 Northern & Santa Fe Railway Co. v. White v. 548 U.S. 53,
68 (2006); Hernandez, 670 F.3d at 657.
In opposition, Postell contends that Defendants retaliated against him when
they prohibited him from working the October 2012 “Angola Rodeo” at the Louisiana
State Penitentiary. According to Postell, he earned $10 per hour while working the
“Angola Rodeo.” (Doc. 76-1, pp. 3-6.) Working at the “Angola Rodeo” also gave Postell
the opportunity to network with correctional officers, which often led to sales leads and
a commission. (Doc. 76-1, pp. 3-6.) According to Postell, Defendants prohibited him
from working the rodeo after he filed the instant lawsuit.
Postell also contends that Defendants retaliated against him when the Company
disciplined him for an alleged attendance violation, suspended him for referring to a

17

co-worker as an “ass” to a customer, and terminated him after he had a physical
altercation with another a co-worker. According to Postell, he worked for the Company
for nine years without incident. Yet, within months of filing the instant lawsuit, he
was disciplined multiple times and was eventually terminated from his sales position.
Because Postell does not present any direct evidence of retaliation, his
retaliation claim is evaluated under the McDonnell Douglas burden-shifting
framework. See Septimus v. Univ. of Hous., 399 F.3d 601, 607-08 (5th Cir. 2005)
(applying the McDonnell Douglas framework in a Title VII retaliation case). The
McDonnell Douglas framework requires a plaintiff first to demonstrate a prima facie
case of retaliation. LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 388 (5th Cir.
2007). “If the employee establishes a prima facie case, the burden shifts to the
employer to state a legitimate, non-retaliatory reason for its decision. After the
employer states its reason, the burden shifts back to the employee to demonstrate that
the employer’s reason is actually a pretext for retaliation.” LeMaire, 480 F.3d at 388-89
(citation omitted).
Viewing the facts in the light most favorable to Postell, the Court finds that he
has established a prima facie case of retaliation. Accordingly, the burden shifts to
Defendants to state a legitimate, non-retaliatory reason for the Company’s decision.
In an attempt to establish a legitimate, non-retaliatory reason for prohibiting Postell
from working the “Angola Rodeo,” Defendants contend that Postell was prohibited from
working the rodeo because he sold two rodeo tickets that the Company gave him freeof-charge, without the Company’s authorization. A review of Postell’s deposition,

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however, raises a dispute of fact as to exactly when the Company became aware of the
sale, and whether Postell was permitted to work the April 2012 “Angola Rodeo” after
the Company became aware. Accordingly, the Court finds that Defendants have not
met their burden.
As it relates to the suspension and eventual termination of Postell, Defendants
contend that there is no dispute that Postell violated Company policy, that
investigations were conducted, and that Postell was provided with reprimand forms,
which he signed. Defendants also contend that Postell cannot point to similarly
situated employees who were treated differently. In opposition, Postell points to his
deposition, in which he testified about coworkers who violated Company policy and/or
engaged in physical altercations at the dealership, but were not terminated. (Doc. 726, pp. 105-109.) Viewing the facts in the light most favorable to Postell, the Court finds
that there are genuine disputes of fact as to whether Postell’s suspension and eventual
termination were the result of discriminatory animus.
In sum, the Court finds that Postell has pointed to sufficient evidence to
establish a dispute of material fact as to his retaliation claim.

Accordingly,

Defendants’ request that the Court dismiss Postell’s retaliation claim is DENIED.
F.

Postell’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

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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 Postell cannot point to
sufficient evidence to establish his assault and battery claims. In opposition, Postell
contends that Lane intended to touch him on his face and buttocks, and that the
touching was unwanted. In support of this contention, Postell points to his deposition
in which he testified that Lane touched his face “two or three times” and that he “didn’t
like it.” (Doc. 76-1, pp. 17-18.) Postell failed to point the Court to the specific portion
of his deposition in which he testified that Lane touched his buttocks.
In support of the motion, Defendants argue that Postell cannot point to
sufficient evidence to establish that Lane intended to make a harmful or offensive
contact. Thus, Defendants argue Postell’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

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

Postell’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,

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Defendants argue that Postell cannot point to sufficient evidence to establish these
elements.
In opposition, Postell failed to point the Court to specific evidence to support
each prong of his intentional infliction of emotional distress claim. Instead, Postell
generally argues that where there is a question as to whether there was pattern of
harassment, summary judgment is inappropriate. However, Postell’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, Postell 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 emotional distress upon Postell or knew that severe emotional distress would
be certain or substantially certain to result from his conduct toward Postell.
Accordingly, the Court finds that Postell 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 Postell’s intentional infliction of emotional distress claim is GRANTED.
IV.

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

72) is GRANTED IN PART and DENIED IN PART.
•

Defendants’ request that the Court dismiss Postell’s claim under La. R.S. §

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23:631 is GRANTED. Accordingly, Postell’s claim under La. R.S. § 23:631 is
DISMISSED.
•

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

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

•

Defendants’ request that the Court dismiss Postell’s hostile work environment
claim on the basis of his race is DENIED.

•

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

•

Defendants’ request that the Court dismiss Postell’s retaliation claim is
DENIED.

•

Defendants’ request that the Court dismiss Postell’s battery claim is DENIED.

•

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

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