Lewis et al v. M7 Productions, LLC et al

Filing 35

RULING: granting in part and denying in part 17 Motion for Summary Judgment. Plaintiffs Title VII claim is DISMISSED WITH PREJUDICE against the individual defendants. M7s motion is DENIED as to PlaintiffsTitle VII claim. Defendants motion is GRANT ED as to Plaintiffs state law claims of defamation and IIED, and these claims are DISMISSED WITH PREJUDICE. Defendants motion is DENIED as to Mrs. Lewis's loss of consortium claim. The Court will hear the remaining claims at the December 9, 2019 Bench Trial. Signed by Chief Judge Shelly D. Dick on 11/26/2019. (ELW) Modified on 11/26/2019 to edit text (ELW).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DANIEL LEWIS AND LINDA
NORWOOD LEWIS

CIVIL ACTION NO.

VERSUS

17-1805-SDD-RLB

M7 PRODUCTIONS, LLC, JOHN P.
SHIREY, DAVID DUNGAN, HENRY
NOWACKI, MICHAEL HENDRICK,
KOW WING CHIN, AND LAURA
WALLGREN
RULING
This matter is before the Court on the Motion for Summary Judgment1 by
Defendants, M7 Productions, LLC, John P. Shirey, David Dungan, Henry Nowacki,
Michael Hendrick, Kow Wing Chin, and Laura Wallgren (“collectively, Defendants”).
Plaintiffs, Daniel Lewis (“Plaintiff”)2 and Linda Norwood Lewis (“Mrs. Lewis”)(or
collectively, “Plaintiffs”), filed an Opposition3 to which Defendants filed a Reply.4 For the
following reasons, the Court finds that Defendants’ motion for summary judgment should
be granted in part and denied in part.
I.

FACTUAL BACKGROUND
On or about May 8, 2015, M7 Productions, LLC (“M7”) began “principal

photography” on the movie “The Magnificent Seven” in Baton Rouge, Louisiana.5

1

Rec. Doc. No. 17.
When the Court refers to Plaintiff in the singular, the Court is referring to Plaintiff Daniel Lewis.
3
Rec. Doc. No. 23.
4
Rec. Doc. No. 27.
5
Rec. Doc. No. 1-2, ¶ 3.
2

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Plaintiff, who was otherwise known as “Papa D,”6 was employed as a driver for M7,7 and
he provided transportation for the set decorating department of the production.8
Defendants John “Phil” Shirey (“Phil” or “Shirey”),9 David Dungan (“Dungan”), Henry
Nowacki (“Nowacki”),10 Michael “T-Bone”11 Hendrick (“T-Bone” or “Hendrick”),12 Kow
Wing Chin (“Chin”), Roy Farthing (“Farthing”), and Laura Wallgren (“Wallgren)”13 were
employed by M7 in the set decorating department.14 Plaintiff’s job placed him in daily
contact with the management personnel and the employees in the set decorating
department.15 Further, due to this day-to-day contact, Plaintiff claims it was well known
on the set of “The Magnificent Seven” the he enjoyed talking to anyone about “how
precious” his granddaughter is to him.16
Defendants present background information, supported by Plaintiff’s deposition
testimony, illustrating the strained relationship not only between Farthing and Plaintiff but
also between Plaintiff and the other set dressers. While the details of these relationships
as portrayed by Defendants is largely irrelevant to the motion before the Court, the Court
acknowledges that Plaintiff and Farthing were irritated and annoyed with one another on

6

“Papa D” was also on Plaintiff’s identification badge. Plaintiff also alleges that the set decorating
employees “knew” that his grand-daughter called him “Papa D.” Rec. Doc. No. 1-2, ¶ 8. Plaintiff gained
the additional nickname “Papa Lock” on September 1, 2015, when Plaintiff locked his keys in his truck.
Rec. Doc. No. 1-2, ¶ 11.
7
Rec. Doc. No. 17-3, p. 12.
8
Rec. Doc. No. 1-2, ¶ 4.
9
Phil had a management/supervisory position as a “leadman.” Rec. Doc. No. 1-2, ¶ 6.
10
Dungan and Nowacki were upholsterers/set dressers. Rec. Doc. No. 1-2, ¶ 7.
11
Plaintiff avers that it was common for employees to go by nicknames. Rec. Doc. No. 1-2, ¶ 8.
12
T-Bone had a management/supervisory position as the “gang boss” for the set dressers. Rec. Doc. No.
1-2, ¶ 6.
13
Chin, Farthing, and Wallgren were set dressers. Rec. Doc. No. 1-2, ¶ 7.
14
Rec. Doc. No. 1-2, ¶ 5.
15
Rec. Doc. No. 1-2, ¶ 4.
16
Rec. Doc. No. 1-2, ¶ 9.

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a consistent basis.17
The facts giving rise to this lawsuit involved a display of mannequins by members
of the set department.18 Sometime in late August of 2015, Farthing allegedly dressed up
a male mannequin and a female child mannequin and placed the name “Roy” on the adult
male mannequin. The male mannequin was positioned to be holding hands with a
“female child mannequin.”19 Defendants do not dispute these facts but argue that Plaintiff
believed the mannequin depicted Farthing, so Plaintiff initially had “no problem” with the
mannequins.20
Farthing allegedly commented that he needed to dye the female child mannequin’s
hair red, presumably in reference to Plaintiff’s granddaughter who has red hair.21
Defendants claim that Plaintiff spoke to Dungan about a woman with red hair whom he
met on another set. Because Dungan presumed Plaintiff was attracted to this woman,
Defendants contend Dungan’s testimony suggests that the child mannequin could have
represented this other woman.22 Defendants maintain that, at this time, Plaintiff had no
problem with the display.23
Around September 2, 2015, Plaintiff contends Defendants changed the positions
of the mannequin to reflect that the “adult male mannequin” was sitting on a table with his

17

Rec. Doc. No. 17-1, pp. 2-5.
The allegations in this matter involve a visual display that was constructed on the set of the movie “The
Magnificent Seven.” Both Plaintiffs and Defendants interchangeably refer to the “mannequins,” “a
mannequin and a doll,” or “a set dummy and a doll” in reference to the two mannequins or dolls used in the
display. The Court will refer to the “mannequins” as this is the most common reference by the Parties, and
it is undisputed that one mannequin is an adult male and the other is a female child.
19
Rec. Doc. No. 1-2, ¶ 10.
20
Rec. Doc. No. 17-1, p. 7, citing Rec. Doc. No. 17-4, pp. 46-47.
21
Id.
22
Rec. Doc. No. 17-1, p. 7, citing Rec. Doc. No. 17-12, ¶ 6.
23
Rec. Doc. No. 17-1, p. 7, citing Rec. Doc. No. 17-4, pp. 152-53, 158.
18

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legs spread, and the “child mannequin” was placed with her head between the legs,
apparently “performing fellatio on him.”24 The name “Papa Lock” was placed on the “adult
male mannequin”25 along with “Gambit,” both nicknames allegedly referring to a subject
frequently discussed by Plaintiff ostensibly identifying Plaintiff as the adult male
mannequin.
Defendants claim that a sticker saying “Atlanta” was added to the mannequin’s hat
representing where Farthing talked about heading after leaving M7.26 Plaintiff argues that
“Atlanta” and “Gambit” are references to a different movie production about which Plaintiff
frequently commented, “[i]f I ever hear Atlanta or Gambit again, I will throw up.”27 Plaintiff
also argues that he talked about how he gambles at the casinos as a hobby, and the adult
mannequin had an ace of spades in his hand. Further, the hat on the adult mannequin
was replaced at some point with one that Plaintiff wore every day.28
Plaintiff maintains the adult male mannequin was intended to represent him, and
the other mannequin was intended to represent his granddaughter.29 Plaintiff complained
at work that the mannequin display was upsetting and “not right,” but he does not recall
to whom he initially reported his complaint.30
The record reflects that this mannequins display remained on display for between
two and three weeks. During this time, the mannequins were moved into various different
positions, and Plaintiff claims he continued to complain. On September 17, 2015, Plaintiff
24

Rec. Doc. No. 1-2, ¶ 12.
Plaintiff argues that he locked his keys in his truck and gained the nickname Papa Lock on the same day
that the name tag “Papa Lock” was placed on the mannequin. Rec. Doc. No. 23, p. 2.
26
Rec. Doc. No. 17-1, p. 7, n. 11, citing Rec. Doc. No. 17-5, p. 3.
27
Rec. Doc. No. 23, p. 2, citing Rec. Doc. No. 17-5, p. 3.
28
Rec. Doc. No. 23, p. 3, citing Rec. Doc. No. 17-5, pp. 3-5.
29
Id.
30
Rec. Doc. No. 17-6, pp. 16-17.
25

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contends that the “set dressers” added a “speech balloon” above the “male mannequin’s”
head that stated, “[t]ake this with a grain of salt.” Plaintiff alleges this speech balloon was
directed at him due to his complaints.31 On September 18, 2015, Plaintiff claims the “set
dressers” modified the display and removed the “child mannequin’s” head from the lap of
the other mannequin. The “set dressers” then allegedly placed the “adult mannequin’s”
hand in the “crotch area” of his lap with the “child mannequin” located next to him and
allegedly “looking down” at the “adult mannequin.”32
Defendants challenge Plaintiff’s timing of these events.

Defendants contend

Plaintiff initially took a picture of the display and showed it to his union captain, prompting
the “doll” to be moved to a standing position “the next day.”33 Defendants cite Plaintiff’s
testimony, arguing that the mannequins remained in the initial posture, in the lap, for
approximately one week.34 However, the transcript of the testimony cited by Defendants
actually states “for at least a week plus,” indicating Plaintiff’s belief that the display was
up for longer than one week.35
During the time of these mannequin displays, Plaintiff’s supervisor and “leadman”
Shirey was out of state, and T-Bone, the “gang boss,” was left in charge of the set
dressing department on “The Magnificent Seven” set. Plaintiff claims he asked T-Bone
to “stop the harassment” because it was “driving [him] crazy.”36

Plaintiff further claims

that T-Bone not only failed to take action in response to his request, but instead, he

31

Rec. Doc. No. 1-2, ¶ 16.
Id. at ¶ 17.
33
Rec. Doc. No. 17-1, p. 8, citing Rec. Doc. No. 17-6, p. 13.
34
Rec. Doc. No. 17-1, p. 8, citing Rec. Doc. No. 17-6, p. 7.
35
Rec. Doc. No. 17-6, p. 7, ll. 16-17.
36
Rec. Doc. No. 1-2, ¶ 13.
32

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“escalated the harassment” by conducting daily meetings in front of the mannequins. The
display was placed where the set department had daily meetings, and when T-Bone
conducted the meetings, he did it standing “right in front of the doll,” which caused Plaintiff
to stop going to the daily meetings.37 Plaintiff also testified that the display was placed
so that he had to pass it to go to the bathroom.38 Thus, to simply gain access to the
water, Powerade, snacks, and drinks that were provided on the job, Plaintiff would have
to see the display.39 Further, Plaintiff testified that T-Bone’s own declarations
acknowledge that he was the “Gang Boss.”40 T-Bone states in his declaration that he
established the list entitled “Driver Rules” that was implemented against Plaintiff, and he
also admits in his declaration that he had Plaintiff was ultimately removed from the set
department.41
While Defendants argue that, upon Shirey’s return, he directed that the “doll” and
mannequin be removed altogether,42 Plaintiff maintains the damage had been done.
Further, Plaintiff objected to his transfer because he felt that M7 was “taking action”
against him, rather than on his co-employees, in “retaliation” for Plaintiff’s complaints.
Also, the position to which he was transferred “ended sooner” that the position from which
he was transferred. Plaintiff claims that the “retaliation culminated” on October 9, 2015,
when he was released from employment while his former position continued to be
employed.43

37

Rec. Doc. No. 17-4, p. 10; Rec. Doc. No. 17-6, p. 6.
Rec. Doc. No. 17-4, pp. 40-43.
39
Rec. Doc. No. 17-6, p. 16.
40
Rec. Doc. No. 17-14.
41
Id.
42
Rec. Doc. No. 17-1, p. 8, citing Rec. Doc. No. 17-6, p. 15.
43
Rec. Doc. No. 1-2, ¶ 23.
38

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Defendants contend that Plaintiff’s transfer to the construction department was due
to a wholly different incident.44 Defendants argue that Plaintiff was transferred because
he refused to complete certain tasks required by his driver position, such as pushing the
button to lift and lower the lift gate. Defendants contend Plaintiff specifically refused to
operate the lift gate for Nowacki or Dungan because they “didn’t know how to act right.”45
T-Bone allegedly reported Plaintiff’s behavior to Plaintiff’s union captain and asked the
union to replace Plaintiff.46 Defendants also challenge Plaintiff’s assertion that, had he
stayed with the set dressing department, his job would have lasted longer, arguing that
Plaintiff has no way of knowing on what date his employment would have ended had he
remained in the set dressing department.47
Plaintiffs initially filed suit on September 15, 2016, in the 19th Judicial District Court
for the Parish of East Baton Rouge, State of Louisiana, alleging three claims against the
Defendants: intentional infliction of emotional distress, defamation, and loss of
consortium.48

Plaintiffs amended their petition49 on December 7, 2017, adding an

additional claim of sexual harassment pursuant to Title VII of the Civil Rights Act of 1964.50
Subsequently, this matter was removed to the United States District Court for the Middle
District of Louisiana on December 28, 2017.51 Defendants now move for summary
judgment on all Plaintiffs’ claims.52

44

Rec. Doc. No. 17-1, pp. 6-7.
Rec. Doc. No. 17-1, p. 6, citing Rec. Doc. No. 17-4, pp. 29-30.
46
Rec. Doc. No. 17-1, p. 6, citing Rec. Doc. No. 17-4, p. 32; No. 17-6, p. 29; No. 17-14, ¶ 5.
47
Rec. Doc. No. 17-1, p. 7, citing Rec. Doc. No. 17-3, pp. 25-26; No. 17-6, pp. 38-40.
48
Rec. Doc. No. 1-3.
49
Rec. Doc. No. 1-2.
50
42 U.S.C. § 2000e et seq.
51
Rec. Doc. No. 1.
52
Rec. Doc. No. 17.
45

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II.

LAW AND ANALYSIS
A.

Summary Judgment Standard

Summary judgment should be granted if the record, taken as a whole, “together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.”53 “When assessing
whether a dispute to any material fact exists, we consider all of the evidence in the record
but refrain from making credibility determinations or weighing the evidence.”54

The

Supreme Court has interpreted the plain language of Rule 56(c) to mandate “the entry of
summary judgment, after adequate time for discovery and upon motion, 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.”55 A
party moving for summary judgment “must ‘demonstrate the absence of a genuine issue
of material fact,’ but need not negate the elements of the nonmovant’s case.”56 If the
moving party “fails to meet this initial burden, the motion must be denied, regardless of
the nonmovant’s response.”57
If the moving party meets this burden, Rule 56(c) requires the nonmovant to go
beyond the pleadings and show by affidavits, depositions, answers to interrogatories,
admissions on file, or other admissible evidence that specific facts exist over which there

53
Fed.R.Civ.P. 56(c); New York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996); Rogers
v. Int’l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996).
54
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)(citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
55
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). See also
Gunaca v. Texas, 65 F.3d 467, 469 (5th Cir. 1995).
56
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex, 477 U.S. at 32325, 106 S.Ct. at 2552).
57
Id. at 1075.

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is a genuine issue for trial.58 The nonmovant’s burden may not be satisfied by conclusory
allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a scintilla
of evidence.59 Factual controversies are to be resolved in favor of the nonmovant, “but
only when there is an actual controversy, that is, when both parties have submitted
evidence of contradictory facts.”60 The Court will not, “in the absence of any proof,
assume that the nonmoving party could or would prove the necessary facts.”61 Unless
there is sufficient evidence for a jury to return a verdict in the nonmovant’s favor, there is
no genuine issue for trial.62
The Court “has no duty to search the record for material fact issues. Rather, the
party opposing the summary judgment is required to identify specific evidence in the
record and to articulate precisely how this evidence supports his claim.”63 “Conclusory
allegations unsupported by specific facts, however, will not prevent an award of summary
judgment; ‘the plaintiff [can]not rest on his allegations … to get to a jury without any
significant probative evidence tending to support the complaint.’”64
B.

Plaintiff’s Failure to Submit Opposing Statement of Material Facts

As Defendants note, Plaintiffs’ statement of undisputed facts65 appears blank and
does not contain any disputed facts or citations to the record. In opposing a motion for

58

Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996).
Little, 37 F.3d at 1075; Wallace, 80 F.3d at 1047.
60
Wallace, 80 F.3d at 1048 (quoting Little, 37 F.3d at 1075). See also S.W.S. Erectors, Inc. v. Infax, Inc.,
72 F.3d 489, 494 (5th Cir. 1996).
61
McCallum Highlands v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995), as revised on denial
of rehearing, 70 F.3d 26 (5th Cir. 1995).
62
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
63
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010)(citing Ragas v. Tenn. Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998)).
64
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. 249)(citation omitted)).
65
Rec. Doc. No. 24-3.
59

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summary judgment, a party is required under local Rule 56(b) to:
submit with its opposition a separate, short, and concise statement of
material facts. The opposing statement shall admit, deny or qualify the facts
by reference to each numbered paragraph of the moving party’s statement
of material facts and unless a fact is admitted, shall support each denial or
qualification by a record citation as required by this rule. Each such
statement shall begin with the designation “Admitted,” “Denied,” or
“Qualified” and, in the case of an admission, shall end with such
designation. The opposing statement may contain in a separately titled
section additional facts, each set forth in a separately numbered paragraph
and supported by a record citation as required by subsection (f) of this rule.
As Plaintiffs failed to comply with this rule, Defendants are correct that the Court must
deem admitted their record-supported statements of undisputed fact. Rule 56(f) provides:
Facts contained in a supporting or opposing statement of material facts, if
supported by record citations as required by this rule, shall be deemed
admitted unless properly controverted. An assertion of fact set forth in a
statement of material facts shall be followed by a citation to the specific
page or paragraph of identified record material supporting the assertion.
The court may disregard any statement of fact not supported by a specific
citation to record material properly considered on summary judgment. The
court shall have no independent duty to search or consider any part of the
record not specifically referenced in the parties’ separate statement of facts.
However, according to Fifth Circuit jurisprudence, in such instances the Court can
still consider record evidence to determine if there is a factual dispute.66 Because Plaintiff
has submitted evidence with his Opposition to contradict some of Defendants’
statements, the Court will consider those statements opposed. The Court now turns to
the substantive claims raised by Plaintiffs.

66

See Smith v. Brenoettsy, 158 F.3d 908, 910 (5th Cir. 1998) (holding, where plaintiff failed to oppose the
motion for summary judgment, that facts in “Statement of Undisputed Facts” were admitted, “except to the
extent that the ‘facts’ in the ‘Statement of Undisputed Facts’ are contradicted by ‘facts’ in other materials
attached to his motion for summary judgment.” (citation omitted)).

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C.

Title VII Claim
1.

Individual Defendants

Although the individual defendants have not raised this issue, the law is clear that
only employers, not individuals who do not meet the definition of “employers,” can be
liable under Title VII.67 Supervisory personnel and other agents of the employer are not
considered employers for purposes of liability.68 “[T]here is no individual liability for
employees under Title VII.”69 Accordingly, summary judgment is granted in favor of
Shirey, Dungan, Nowacki, Hendrick, Chin, and Wallgren on Plaintiff’s Title VII claim as
they are not subject to Title VII liability as a matter of law. M7 is the only proper defendant
subject to Plaintiff’s Title VII claim.
2.

Timeliness

M7 contends Plaintiff’s Title VII claim is untimely. M7 notes that Plaintiff alleged in
his Complaint that the only sexual act was the positioning of the mannequin and doll,
which ended as of September 18, 2015.70 M7 is correct that an EEOC charge must be
brought within 300 days of the discriminatory conduct;71 thus, it maintains that Plaintiff
was required to file an EEOC charge for the allegedly discriminatory conduct on or before
July 14, 2016. M7 claims Plaintiff did not file his EEOC charge until September 16, 2016,
nor did he make a timely initial inquiry with the EEOC. In support of this argument, M7

67

See Grant v. Lone Star Co., 21 F.3d 649, 651-52 (5th Cir. 1994)(citing Clanton v. Orleans Parish Sch.
Bd., 649 F.2d 1084, 1099 (5th Cir. 1981) and Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993),
cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994)).
68
Id.
69
Muthukumar v. Kiel, 478 Fed.Appx. 156, 158 (5th Cir. 2012)(citing Smith v. Amedisys Inc., 298 F.3d 434,
448 (5th Cir. 2002); see also Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 381, n. 1 (5th Cir. 2003)).
70
Rec. Doc. No. 1-2, p. ¶ 17.
71
See Johnson v. Fluor Corp., 181 F.Supp.3d 325 (M.D. La. 2016).

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submits a vague Freedom of Information Act (“FOIA”) request from the EEOC.72 M7 also
claims Plaintiff’s EEOC charge checked only the box for retaliation, a claim not asserted,
and not sex. Thus, argues M7, Plaintiff has failed to exhaust his administrative remedies
on his Title VII claim, and this claim should be dismissed.
The Court disagrees. First, Plaintiff submits a stamped receipt and letter, both
dated July 12, 2016, filed with the EEOC detailing the investigation request into the
incident at issue herein.73 Plaintiff also submits an acknowledgment letter from the
EEOC, dated July 21, 2016, wherein the EEOC acknowledges receipt of Plaintiff’s filed
charge.74 Thus, M7’s claim that Plaintiff did not file an EEOC charge until September of
2016 is contradicted by the EEOC’s acknowledgement letter.
Further, while Plaintiff may not have checked the “sex” box on the EEOC form, the
nature of Plaintiff’s narrative makes clear the conduct of which he complains. The Fifth
Circuit has found that a plaintiff's failure to check a box on an EEOC Charge is not always
fatal error. For instance, in Sanchez v. Standard Brands, Inc., the Fifth Circuit concluded
that a plaintiff's failure to check the “national origin” box on her EEOC Charge was “a
mere ‘technical defect or omission’”75 and “decline[d] to hold that the failure to place a
check mark in the correct box [was] a fatal error.”76 Ultimately, because the plaintiff had
alleged sufficient facts to give rise to a national origin discrimination claim, the Sanchez
court found that plaintiff's failure to mark the appropriate box did not bar her from including

72

Rec. Doc. No. 17-17.
Rec. Doc. No. 23-1.
74
Id. at p. 7.
75
431 F.2d 455, 462 (5th Cir. 1970).
76
Id. at 463.
73

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her national origin discrimination claim in her complaint.77 Accordingly, M7’s timeliness
argument is without merit and contradicted by record evidence.
3.

Title VII Sexual Harassment/Hostile Work Environment Elements

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice
for an employer ... to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin.”78 Sexual harassment is a form of sex discrimination. The
Supreme Court has recognized two types of sexual harassment claims: those based on
requests for sexual favors that result in adverse employment actions (a quid pro quo
claim) and those where bothersome attentions or sexual remarks create a hostile work
environment.79

It is undisputed that this matter involves an alleged hostile work

environment.
To establish a Title VII sexual harassment claim based on hostile work
environment, the plaintiff-employee must show: (1) that he belongs to a protected class;
(2) that he was subject to unwelcome sexual harassment; (3) that the harassment was
based on sex; (4) that the harassment affected a “term, condition, or privilege” of
employment; and (5) that the employer knew or should have known of the harassment
and failed to take prompt remedial action.”80 To affect a term, condition, or privilege of
employment, the harassment must be “sufficiently severe or pervasive so as to alter the

77

Id. at 463-64.
42 U.S.C. § 2000e–2(a)(1).
79
Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); Burlington Industries, Inc. v. Ellerth, 118 S.Ct.
2257 (1998); Oncale v. Sundowner Offshore Servs., Inc., 114 S.Ct. 3678 (1998).
80
Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001)(citing Shepherd v. Comptroller
of Public Accounts of the State of Tex., 168 F.3d 871, 873 (5th Cir. 1999)).
78

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conditions of the [plaintiff's] employment and create an abusive working environment.”81
The work environment 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.”82
M7 challenges only two of the above listed prima facie elements of Plaintiff’s sexual
harassment hostile work environment claim: M7 contends Plaintiff cannot show that the
harassment affected a term, condition, or privilege of employment or that M7 knew or
should have known of the harassment and failed to take prompt remedial action.83 As
M7 concedes the other elements by failing to argue them, the Court limits its analysis to
the two challenged elements.
a. Affect Term, Condition, or Privilege of Employment
The Court must determine whether the alleged facts, viewed in the light most
favorable to Plaintiff, constitute severe or pervasive sexual harassment sufficient to create
a hostile work environment. Determining whether a hostile work environment exists takes
into account the totality of the circumstances, including such factors as: (1) the frequency
of the conduct; (2) its severity; (3) the degree to which the conduct is physically
threatening or humiliating; and (4) the degree to which the conduct unreasonably
interferes with an employee's work performance.84 Not all harassment will affect the
terms, conditions, or privileges of employment. “The mere utterance of an offensive
comment or remark which hurts an employee's feelings is not sufficient to affect the

81

Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
Aryain v. Wal–Mart Stores of Tex., LP, 534 F.3d 473, 479 (5th Cir.2008) (quoting Faragher, 524 U.S. at
787, 118 S.Ct. 2275).
83
Rec. Doc. No. 17-1, p. 14.
84
Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir.2005).
82

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conditions of employment.”85 Likewise, “[s]imple teasing, offhand comments, and isolated
incidents, unless extremely serious, are not sufficient to affect the terms, conditions or
privileges of employment.”86 “While what makes up an actionable claim for a hostile work
environment is a fact-sensitive determination, the Supreme Court's decisions strongly
suggest that such allegations are not to be exclusively resolved by the jury.”87
Furthermore, courts have set a high standard for what constitutes severe and pervasive
harassment for purposes of a hostile work environment claim: “Title VII was only meant
to bar conduct that is so severe and pervasive that it destroys a protected class member's
opportunity to succeed in the workplace.”88
M7 contends Plaintiff cannot show that the mere existence of the doll’s face down
in the mannequin’s lap for “possibly one week” was sufficiently severe or pervasive to
alter a term or condition of his employment.89 First, the Court notes that it has not been
established by record evidence that the mannequins’ initial posture (the fellatio posture)
was in place for “possibly one week.” Plaintiff testified that it was in place “one week
plus,” and has presented evidence of a timeline that supports that the display was up for
at least two weeks. For example, it is undisputed that the initial posture was erected on
September 2, 2015. It is also undisputed that the mannequins were altered with additional
identifying markers and speech bubbles on September 17, 2015, which is 15 days or over

85

Alleman v. Louisiana Dept. of Economic Development, 698 F.Supp.2d 644, 658 (M.D.La.2010).
Id., citing Lauderdale, 512 F.3d at 163; Merit or Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct.
2399, 2405, 91 L.Ed.2d 49 (1986).
87
Hartfield v. Pizza Inn, Inc., No. 02–0097, 2002 WL 31056595, *3 (E.D.La. Sept. 13, 2002)(citing Indest v.
Freeman Decorating Inc., 164 F.3d 258, 264 (5th Cir.1999)).
88
Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996), cert. denied, 519 U.S. 1055, 117
S.Ct. 682, 136 L.Ed .2d 607 (1997).
89
Rec. Doc. No. 17-1, p. 14.
86

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two weeks later, and the posture was altered again on September 18, 2015, to reflect
another sexual situation involving a male adult and a female child, which is 16 days after
the initial posture.
Second, the jurisprudence upon which M7 relies by analogy is unavailing. M7
highlights that, in Wilkinson v. Potter,90 the plaintiff alleged daily staring, unnecessary
appearances in her work area, following her, obstructing her path, touching on the arm,
and shaking a rod in plaintiff’s direction, which was not found to be severe or pervasive.
Similarly, M7 relies on Paul v. Northrop Grumman Ship Sys.,91 wherein the harasser
touched his chest to plaintiff’s breasts, stared at her, followed her, obstructed her path,
and touched her stomach and waist, and this conduct was not found to be a hostile
working environment. M7 contends that, based on these “analogous” cases, as well as
the applicable legal standards, the conduct alleged by Plaintiff “falls far below the severe
or pervasive standard.”92
Plaintiff argues the Court should not rely on M7’s “whitewashed description” of the
visual display and instead observe the photographs of the display that he took and
submitted in determining the severity of the harassment alleged.93

Plaintiff further

maintains that the severity of the display certainly affected the conditions of his
employment. The display was placed where daily meetings were conducted, wherein

90

442 F.Supp.2d 304, 310 (M.D. La. 2006), aff’d, 236 F.App’x 892 (5th Cir. 2007).
309 F.App’x 825, 826 (5th Cir. 2009).
92
Rec. Doc. No. 17-1, p. 15.
93
Rec. Doc. No. 23, p. 7, citing Rec. Doc. No. 24-2. M7 objects to Plaintiff’s photographs, without citation
to evidentiary rules or jurisprudence, arguing the photographs lack foundation and are not authenticated.
These photographs were, however, used at Plaintiff’s deposition and contain metadata demonstrating that
the photographs were taken during the time period of September 2-18, 2015. Reserving to M7 all trial
objections, the Court finds no reason to strike the photographs and will consider them for purposes of
summary judgment.
91

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information relevant to Plaintiff’s job duties was discussed, and T-Bone actually
conducted the meetings standing in front of the display, causing Plaintiff to stop attending
the meetings.94 Further, Plaintiff was forced to pass the display to simply go to the
restroom or to get water or other snacks.95 Plaintiff contends that, “at the very least,”
genuine issues of material fact exist regarding whether there was a severe and pervasive
hostile working environment that affected the terms and conditions of Plaintiff’s
employment.
The Court finds that Plaintiff has presented sufficient evidence that the conduct at
issue affected a term, condition, or privilege of his employment based on the severity of
the display. The cases upon which M7 relies are not factually similar and provide no
support for M7’s position. Notably, none of these cases involved a display suggesting
that the alleged victim was committing a criminal sexual act upon a child.96 Further,
although this case involves a unique factual scenario, the Court finds that the following
cases are more analogous than those cited by M7. In Waltman v. International Paper
Company,97 the Fifth Circuit reversed summary judgment granted in favor of the employer
where the plaintiff received over thirty pornographic notes in her locker and sexually
explicit pictures and graffiti were drawn on the walls of the worksite, although only some
of the drawings were directed at the plaintiff. While the list of acts of harassment in
Waltman was lengthy, explicit, and occurred over a long period of time, this case is one

94

Rec. Doc. No. 23, p. 7.
Rec. Doc. No. 23, pp. 7-8.
96
The Court finds it curious that Defendants fail to address that the display involved a minor engaged in
sexual acts with an adult male and the implications that combination would suggest.
97
875 F.2d 468 (5th Cir. 1989).
95

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of severity more so than pervasiveness, and the Court finds that the visual display
involved in Waltman is somewhat similar to the present case.
Also, in Mota v. University of Texas Houston Health Science Center,98 the Fifth
Circuit considered a “same sex” harassment case where a male professor/employee
claimed that his male supervisor created a hostile work environment at the university
where they were both employed. The Fifth Circuit noted that much of the conduct of
which the plaintiff complained consisted of verbal threats to the plaintiff’s employment if
the plaintiff spoke of the sexual advances, and there was also evidence of unwanted
physical contact of a sexual nature. Notable for this case is that the Fifth Circuit found
that the alleged sexually harassing conduct caused such emotional distress and
psychological problems that the professor/employee began to avoid engagements and
conferences at which the supervisor was also present. Similarly, in the present case, the
conduct caused Plaintiff to avoid and/or fail to attend mandatory meetings because they
were conducted in front of the mannequin display. There is further evidence that T-Bone,
as the acting supervisor in Shirey’s absence, used these meetings to modify work rules
that would cause any employee – like Plaintiff – to fail if he was unaware of the changes.
In the present matter, it is undisputed that the mannequin display involved a sexual
act involving an adult and a child, which depicts a criminal and grossly offensive act.99
Plaintiff has presented summary judgment evidence that demonstrates a genuinely
disputed material fact regarding the intention that he was the suggested adult represented
in the display and that his granddaughter was the suggested child. The Court finds the

98

261 F.3d 512, 524 (5th Cir. 2001).
See U.S. v. Williams, 592 F.3d 511 (4th Cir. 2010)(addressing the egregious and criminal nature of
pedophilia and circulating pornographic images involving children).

99

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display sufficiently severe in that it represents a child, and even more so if it represents
Plaintiff’s granddaughter. M7 fails to carry its burden on this element.
b. The employer knew or should have known of the harassment and
failed to take prompt remedial action100
As set forth above, the fifth element of a prima facie case of hostile work
environment that a plaintiff must establish is that the employer knew or should have
known of the harassment and failed to take prompt remedial action.101 However, in cases
where the alleged harasser is a supervisor with immediate or higher authority over the
harassed employee, the employee need only satisfy the first four elements of the
foregoing test.102 Once the plaintiff employee makes this showing, an “employer is
subject to vicarious liability to a victimized employee.”103 The Parties appear to dispute
whether element five is applicable in this matter as they disagree on whether a supervisor
participated in the alleged harassment of Plaintiff.
M7 bases its argument on the fact that Shirey was Plaintiff’s immediate supervisor
and is not alleged to have participated in the sexual harassment; thus, element five
applies in this case. Plaintiff maintains that T-Bone was the “gang boss” with supervisory
authority over the entire department in Shirey’s absence; thus, because T-Bone
participated in the alleged harassment, Plaintiff does not have the burden to establish
element five.

100

The Court notes that M7 failed to assert or argue the Faragher/Ellerth affirmative defense; therefore, the
Court did not analyze or consider its applicability herein.
101
See note 75, supra.
102
Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). This is based on the decisions of Burlington
Ind. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton,
524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
103
Faragher, 524 U.S. 775, 118 S.Ct. at 2292–93.

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The Court finds that Plaintiff has produced sufficient summary judgment evidence,
discussed at length above, regarding T-Bone’s authority to change rules and set Plaintiff’s
driving schedule, to show that T-Bone had supervisory authority over Plaintiff. The Court
finds that there is, at least, an issue of fact regarding whether element five is applicable
here. There is evidence in the record that T-Bone refused to take down the display,
conducted meetings in front of the display, and enacted “rules” designed to punish Plaintiff
for failing to attend the meetings. Accordingly, M7 is not entitled to summary judgment
on Plaintiff’s Title VII hostile work environment claim.
D.

State Law Claims104
1.

Defamation

A federal court sitting in diversity applies the substantive law of the forum state.105
The Louisiana Supreme Court has held that defamation is a tort involving “the invasion of
a person's interest in his [or her] reputation and good name.”106 Defendants move for
summary judgment on Plaintiff’s defamation claim, arguing it is untimely, and Plaintiff is
unable to prove the elements of his defamation claim. The Court discusses each of these
issues in turn.
a. Timeliness
Claims for defamation are delictual in nature and are subject to the one-year
prescriptive period set forth in Louisiana Civil Code Article 3492, which commences to

104

The Court exercises supplemental jurisdiction over Plaintiffs’ state law claims pursuant to 28 U.S.C.
§ 1367.
105
Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
106
Sassone v. Elder, 626 So.2d 345, 350 (La. 1993).

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run from the day injury or damage is sustained.107 For prescription purposes, damages
are sustained from the date the injury is inflicted, if immediately apparent to the victim,
even though the extent of the damages may not yet be known.108 In Wiggins v. Creary,109
and Rice v. Felterman,110 the court found that knowledge of the damage-causing
publication by the plaintiff is required for the commencement of the one-year prescriptive
period.111
Plaintiffs allege in their operative complaint that the position of the mannequins
was changed on or about September 2, 2015, to demonstrate that the child mannequin
was performing fellatio on the adult male mannequin, who Plaintiff believes to be and
alleges represents him. Plaintiff testified these mannequins remained in this position for
approximately one to three weeks, when they re-positioned again on September 17,
2015, with further identifying markers added to the male adult mannequin, and altered
again on September 18, 2015. The new position of the display on September 18, 2015,
also depicted a different sexual act between the adult and child mannequins.
Without citation to any record evidence, Defendants argue Plaintiff’s defamation
claim has prescribed because suit was filed on September 21, 2016, more than one year
after September 18, 2015.112 However, the Notice of Removal filed by Defendants in this
matter acknowledges in Paragraph 1 that, “[o]n or about September 15, 2016, plaintiffs

107
See Wiggins v. Creary, 475 So.2d 780, 781 (La.App. 1st Cir. 02/26/85), writ denied, 478 So.2d 910
(La.1985).
108
Wiggins, 475 So.2d at 781.
109
475 So.2d at 781.
110
2000–2525 (La.App. 1st Cir.3/28/02), 814 So.2d 696, 699.
111
See Clark v. Wilcox, 2004–2254 (La.App. 1st Cir.12/22/05), 928 So.2d 104, 112–113, writ denied, 2006–
0185 (La.6/2/06), 929 So.2d 1252.
112
Rec. Doc. No. 17-1, p. 10.

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filed a petition that is now pending” in state court.113 Indeed, Plaintiffs submit the “filed
stamped” first page of the petition and the receipt for filing fees attached as Exhibit 1 to
Plaintiffs’ Opposition.114 Defendants’ prescription claim is frivolous, at best, and their
motion for summary judgment on the ground that Plaintiffs’ defamation claim is prescribed
is DENIED.
b. Defamation Claim Elements
Both federal and state courts in Louisiana have held that, “[t]o maintain a
defamation action under Louisiana law, a plaintiff must prove the following elements: ‘(1)
a false and defamatory statement concerning another; (2) an unprivileged publication to
a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting
injury.’”115 If any single element of the tort is lacking, the cause of action fails.116 As
such, summary judgment is appropriate if the plaintiff is unable to establish that there is
a genuine issue of material fact regarding any one of these elements.117
i.

False or Defamatory Statement

The threshold issue in a defamation action is whether the words complained of are
defamatory.118 Defamatory words are divided into two categories: those words that are
susceptible of being defamatory in meaning and those that are defamatory per se.119
“Words which expressly or implicitly accuse another of criminal conduct, or which by their

113

Rec. Doc. No. 1, p. 2.
Rec. Doc. No. 23-1.
115
Schmidt v. Cal-Dive International, Inc., 240 F.Supp.3d 532, 542 (W.D. La. 2017)(quoting Kennedy v.
Sheriff of E. Baton Rouge, 935 So.2d 669, 674 (La. 2006); Henry v. Lake Charles American Press, L.L.C.,
566 F.3d 164, 181 (5th Cir. 2009)).
116
Id. at 542 (citing Costello v. Hardy, 864 So.2d at 139)(emphasis added).
117
See Daigle v. Computrac, 835 F.Supp. 903, 906 (E.D.La.1993).
118
Costello, 864 So.2d at 141.
119
Kennedy v. Sheriff of East Baton Rouge, 2005–1418 (La.7/10/06), 935 So.2d 669, 674–75.
114

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very nature tend to injure one's personal or professional reputation, without considering
extrinsic facts or circumstances, are considered defamatory per se.”120

Statements

susceptible to a defamatory meaning are “words that tend to harm the reputation of
another so as to lower the person in the estimation of the community, to deter others from
associating or dealing with the person or otherwise expose a person to contempt and
ridicule,” and convey an element of personal disgrace, dishonesty or disrepute.121
Whether a particular statement “is objectively capable of having a defamatory meaning is
a legal issue to be decided by the court, considering the statement as a whole, the context
in which it was made, and the effect it is reasonably intended to produce in the mind of
the average listener.”122
Here, the purported defamatory statement was not one of words but the offensive
mannequin display that represented sexual acts between an adult male and a minor child.
While Defendants argue Plaintiff cannot establish a “false or defamatory statement,”
Defendants’ argument is not based on the grounds that the “statement” was a visual
display, as opposed to written or spoken words.123 Thus, the Court will assume arguendo
that the mannequins display constitutes a “statement.” Further, although the Parties
dispute whether Plaintiff can establish that the display was specifically about him, the
Court finds this irrelevant since Plaintiff is unable to establish the required element of
publication.

120

Id. at 675.
Costello, 864 So.2d at 141.
122
Bell v. Rogers, 698 So.2d 749, 754 (La.Ct.App. 2nd Cir. 08/20/97)(quoting Kosmitis v. Bailey, 685 So.2d
1177, 1180 (La.Ct.App. 2nd Cir. 12/20/96)).
123
Rec. Doc. No. 17-1, pp. 10-11.
121

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ii. Publication
Plaintiff must show that the defamatory statement was published to a third party
other than the plaintiff.124 Defendants argue the purported “publication” only involves the
“doll and mannequin, not Plaintiff.”125 Defendants maintain that it matters not that others
may have believe one of the mannequins was Plaintiff because “no one published such
information.”126 Defendants further argue that it was Plaintiff who told “numerous people”
that the mannequin depicted him, and no one communicated this idea to Plaintiff, “with
the exception of Dungan.”127
In opposition, Plaintiff argues that Defendants’ requires a credibility determination
of the various witness statements and testimony which is not proper at the summary
judgment stage.128 Further, Plaintiff claims that the fact that the display existed, which is
undisputed, establishes publication “for purposes of defamation law in Louisiana,”
because the employees “all saw it.”129
“Publication is a necessary element of defamation in Louisiana.”130 In this case,
the Court finds that Plaintiff has failed to submit any summary judgment evidence of
publication of the alleged defamatory statement to anyone outside of the movie
production set, specifically, the set dresser department.

The record evidence

demonstrates that a visual display and accompanying verbal commentary, as crude and
offensive as it may have been, were exchanged amongst co-workers in the set dresser
124

Hoffman v. Bailey, 257 F.Supp.3d 801, 821 (E.D. La. June 20, 2017).
Rec. Doc. No. 17-1, p. 11.
126
Id.
127
Id.
128
Rec. Doc. No. 23, p. 3.
129
Id., citing Simons v. Lewis, 51 La. Ann. 327, 330, 25 So. 406, 407 (1898); Trimble v. Moore, 2 La. 577,
579 (1831).
130
Johnson v. Delchamps, Inc., 715 F.Supp. 1345, 1346 (M.D. La. June 26, 1989).
125

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department. There is no record evidence of publication outside the M7 set employees.
Statements between co-workers made within the course and scope of their employment
do not constitute publications for the purpose of defamation.131 Because Plaintiff has
failed to establish a genuine issue of material fact as to the publication of the alleged
defamatory statement to a third party, Plaintiff’s defamation fails as a matter of law.132
Therefore, the Court grants Defendants’ motion for summary judgment on Plaintiff’s
defamation claim.
2.

Intentional Infliction of Emotional Distress (“IIED”)

To maintain an action for IIED in Louisiana, Plaintiff must establish that (1)
Defendants’ conduct was extreme and outrageous; (2) Plaintiff suffered severe emotional
distress; and (3) Defendants desired to inflict severe emotional distress or knew that
severe emotional distress would be certain or substantially certain to result from their
conduct.133 The conduct complained of must be so outrageous in character and so
extreme in degree that it goes beyond all possible bounds of decency and is regarded as
utterly intolerable in a civilized community.134 Liability arises only where the mental
suffering or anguish is extreme, and the distress suffered must be such that no reasonable
person could be expected to endure it.135

131

Cangelosi v. Schwegmann Bros. Giant Super Mkts., 390 So.2d 196 (La.1980); Commercial Union Ins.
Co. v. Melikyan, 424 So.2d 1114 (La.App. 1st Cir.1982). See also, Johnson, 715 F.Supp. at 1346; Mitchell
v. Tracer Const. Co., 256 F.Supp.2d 520, 526 (M.D. La. Apr. 16, 2003); and Ioppolo v. Rumana, 2012 WL
4960385 (M.D. La. Oct. 16, 2012).
132
See Doucet v. City of Bunkie, 2006 WL 3256496 (W.D.La. Nov. 9, 2006) (granting summary judgment
on “defamation per se claim” where the plaintiff “failed to come forward with any specific facts which
establish a genuine issue for trial, with respect to her defamation claim”).
133
White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).
134
Id.
135
White, 585 So.2d at 1210.

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Defendants first argue that Plaintiff’s claim of IIED is untimely for the same reasons
that Plaintiff’s claim of defamation was untimely.136 For the reasons set forth above, any
prescription claim is meritless.
Turning to the substance of Plaintiff’s IIED claim, Defendants argue Plaintiff cannot
prove his claim for IIED because Defendants’ alleged conduct was not so outrageous that
it constitutes “the most unusual of cases” and “more than a reasonable person could be
expected to endure.” Thus, Defendants maintain the alleged conduct does not rise to the
level of IIED.137 Defendants cite several cases wherein they claim far more outrageous
conduct than that alleged here was found insufficient to state a viable claim for IIED.138
However, the Court fails to see the applicability of the cited cases, which involved verbal
harassment, name-calling, racial epithets, or comments regarding one’s body parts, but
none involved an ostensible accusation of pedophilia.139
Considering all evidence submitted in this matter, Plaintiff’s IIED claims fails only
on the severity of emotional distress element: Plaintiff fails to submit summary judgment
evidence demonstrating his severe emotional distress. No medical records or evidence
of medical care has been provided; Plaintiff has not submitted any evidence, or even
argued, that he sought mental health treatment or counseling, had nightmares or lost an
excessive amount of sleep regarding the events, or any other evidence that Plaintiff
suffered from severe emotional distress.140
136

Rec. Doc. No. 17-1, p. 16.
Rec. Doc. No. 17-1, pp. 17-18, citing Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1027 (La. 2000);
Barber v. Marine Drilling Mgt., Inc., Civ. A. No. 01-1986, 2002 U.S. Dist. Lexis 2821 (E.D. La. Feb. 15,
2002).
138
Rec. Doc. No. 17-1, pp. 17-18.
139
Id.
140
With regard to Mrs. Lewis’ loss of consortium claim, the parties address deposition testimony that Mr.
Lewis could not engage in sexual intercourse due to impotency and had a “change in personality” due to
137

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Plaintiff fails to offer summary judgment evidence that the mental anguish he
suffered rises to the level of “unendurable” as required by the Fifth Circuit.141 In Martin v.
Winn-Dixie Louisiana, Inc.,142 a sexual harassment hostile work environment case
wherein the plaintiff also asserted an IIED claim, this Court held that, “[e]ven assuming
Defendant’s conduct was outrageous and extreme, Plaintiff has testified that she felt
horrible, humiliated, and upset, but she has not shown that ‘a reasonable person, normally
constituted, would be unable to cope adequately with the mental distress engendered by
the circumstances of the case.’”143 The Court noted that the plaintiff “produced no
evidence of a single doctor’s visit or a single prescription for such potentially serious
conditions of emotional turmoil” and only a prescription for high blood pressure had been
adduced.” The Court held this insufficient based on Fifth Circuit precedent holding that
“a woman’s mild levels of fear, anxiety, fatigue, high blood pressure, and depression did
not constitute severe emotional distress.”144
As Plaintiff has failed to present summary judgment evidence demonstrating a
materially disputed fact regarding this element of his IIED claim, Defendants are entitled
to summary judgment on Plaintiff’s IIED claim.

the mannequin display. Rec. Doc. No. 17-3, pp. 23, 29-29. However, no evidence has been provided to
the Court of “severe emotional distress” and mental treatment by any medical professional.
141
See Smith v. Amedisys, Inc., 298 F.3d 434, 449 (5th Cir.2002)(citing White, 585 So.2d at 1209).
142
132 F.Supp.3d 794 (M.D. La. 2015).
143
Id. at 824 (quoting Aronzon v. Sw. Airlines, No. 03–394, 2004 U.S. Dist. LEXIS 249, at *18, 2004 WL
57079, at *6 (E.D. La. Jan. 9, 2004) (quoting Norred v. Radisson Hotel Corp., 665 So.2d 753, 756 (La. App.
1 Cir. 1995), and, Magee v. Pittman, 761 So.2d 731, 752 (La. App. 1 Cir. 2000))).
144
Id. (citing Carroll v. Hoechst Celenese Corp., No. 98–41056, 1999 U.S. App. LEXIS 39562, at *23–24,
1999 WL 1330688, at *9 (5th Cir. December 17, 1999)).

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3.

Loss of Consortium

Under Louisiana law, a cause of action exists for “loss of consortium, service, and
society” for the spouse of an injured victim.145 “The compensable elements of a claim
for loss of consortium ... include loss of love and affection, loss of companionship, loss of
material services, loss of support, impairment of sexual relations, loss of aid and
assistance, and loss of felicity.”146 Mrs. Lewis asserts a claim for loss of consortium,
alleging that she suffered the loss of consortium and love, affection, and support due to
the injuries and damages her husband sustained.
Defendants move for summary judgment on this claim, arguing Mrs. Lewis cannot
show that her purported complaints and difficulties in her sexual and marital life were
caused by the mannequins display. Rather, Defendants cite summary judgment evidence
of the following more probable causes of strife in Plaintiffs’ marriage and sexual
relationship: (1) Plaintiff engaged in an extramarital affair after he left employment with
M7, which Mrs. Lewis discovered in July or August of 2016;147 (2) Plaintiff proposed
“swinging” to Mrs. Lewis;148 (3) Plaintiff told his marriage counselor that Mrs. Lewis was
not someone he wanted to have sex with;149 (4) Plaintiff complained that he was not

145

See e.g. Ferrell v. Fireman's Fund Ins. Co., 696 So.2d 569, 573 (La. 1997).
Id. (citing Choyce v. Sisters of Incarnate Word, 642 So.2d 287 (La.App. 2nd Cir. 1994)).
147
Rec. Doc. No. 17-9, pp. 3-6.
148
Rec. Doc. No. 17-10, p. 6. Defendants also argued that Plaintiff proposed an “open marriage,” citing to
this same testimony; however, Mrs. Lewis did not testify about open marriages. Mrs. Lewis testified that
Plaintiff suggested swinging at one time but neither of them really knew what it was, and that was the extent
of that idea.
149
Rec. Doc. No. 17-10, pp. 7-8. Again, Defendants’ characterization of Mrs. Lewis’ testimony is not
reflected in Mrs. Lewis’ actual testimony. Mrs. Lewis testified that Plaintiff never told her that she was not
someone that he wanted to have sex with. She volunteered that he wanted her to loosen up and be more
fun.
146

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satisfied with his marital sex life;150 (5) Plaintiff “pressured” Mrs. Lewis to engage in anal
and oral sex;151 (6) Plaintiffs were victims of the August 2016 flood and it was
“stressful”;152 (7) Plaintiff experienced inconsistent employment and significant financial
problems;153 and (8) Plaintiffs’ strained relationship with their son affected their
relationship with their grand-daughter, for which they sought counseling.154 Defendants
argue that this evidence, along with the lack of supporting medical evidence, establishes
that Mrs. Lewis cannot prove that her sexual and marital issues were caused by the
mannequin display.155
Plaintiffs’ oppose Defendants’ motion on this claim, arguing that, because a loss
of consortium claim is a derivative claim and Plaintiffs have “demonstrated his claims do
not fail,” Defendants’ argument has no merit.156 Plaintiffs also maintain that their treating
counselors and psychological health professionals who have been identified will testify as
to how the sexual display at work affected Plaintiffs, and both Plaintiffs have testified as
to the specific effects on their marital and sexual relationship.
The Court notes that, upon reviewing the record evidence in this case, Plaintiff’s
loss of consortium claim is weak with respect to causation considering several other
potential causes for the damages suffered by Mrs. Lewis. However, as the Court is

150

Rec. Doc. No. 17-5, p. 13. Actually, Plaintiff testified that he was jealous that his co-worker’s wife “gave
him a blow-job” but that his wife, Mrs. Lewis, did not believe in performing such acts.
151
Rec. Doc. No. 17-10, pp. 2-3, 9-10.
152
Rec. Doc. No. 17-9, pp. 2-3. Mrs. Lewis testified that this did not contribute to damaging their marital
sex life.
153
Defendants cite to Rec. Doc. No. 17-3, pp. 16-18, and No. 17-4, p. 9; however, the deposition transcripts
do not reflect any testimony regarding Plaintiff’s “inconsistent employment and significant financial
problems”. The testimony reflects that the movie industry was volatile and that Plaintiff did not work other
jobs in between movie jobs. Sometimes, he drew unemployment.
154
Rec. Doc. No. 17-10, p. 10.
155
Rec. Doc. No. 17-1, p. 20.
156
Rec. Doc. No. 23, p. 11.

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proceeding to trial on Plaintiff’s Title VII claim, the Court declines to grant summary
judgment on Mrs. Lewis’ loss of consortium claim and will allow evidence to be presented
on this claim at the bench trial set for December 9, 2019. Therefore, Defendants’ motion
is DENIED as to Mrs. Lewis’ loss of consortium claim.
III.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment157 is

granted in part and denied in part.

Plaintiffs’ Title VII claim is DISMISSED WITH

PREJUDICE against the individual defendants. M7’s motion is DENIED as to Plaintiff’s
Title VII claim. Defendants’ motion is GRANTED as to Plaintiffs’ state law claims of
defamation and IIED, and these claims are DISMISSED WITH PREJUDICE. Defendants’
motion is DENIED as to Mrs. Lewis’s loss of consortium claim. The Court will hear the
remaining claims at the December 9, 2019 Bench Trial.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on November 26, 2019.

S

CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

157

Rec. Doc. No. 17.

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