London et al v. Associated Pipe Line Contractors Inc

Filing 47

MEMORANDUM RULING re 30 MOTION for Summary Judgment to Dismiss Mark London's Claims of Worker's Compensation Retaliation Under La. R.S. 23:1361 filed by Associated Pipe Line Contractors Inc and 31 MOTION for Summary Judgment to Dismiss Plaintiffs' Claims for Intentional Infliction of Emotional Distress filed by Associated Pipe Line Contractors Inc. Signed by Magistrate Judge Karen L Hayes on 02/10/2015. (crt,Yocum, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
MARK POWELL LONDON AND

CIVIL ACTION NO. 3:14cv-471

JUDY KAY LONDON
VERSUS

MAGISTRATE JUDGE HAYES

ASSOCIATED PIPE LINE CONTRACTORS
MEMORANDUM RULING
Before the Court are two Motions for Summary Judgment, [doc. #s 30, 31], filed by
Defendant Associated Pipe Line Contractors, Inc. Plaintiffs oppose the Motions. [doc. #s 36,
37]. With the consent of all parties, the District Court referred the above-captioned case to the
undersigned Magistrate Judge for the conduct of all further proceedings and the entry of
judgment.1 For reasons assigned below, the Motions are GRANTED.
Procedural History
Plaintiffs Mark and Judy London, husband and wife, first filed suit in the Fifth Judicial
District Court, Parish of Richland, State of Louisiana, on February 4, 2014, and alleged that
Defendant retaliated against them in response to Mark’s workers’ compensation claim. [doc. #
1-1]. Defendant removed the action to this Court on February 28, 2014, on the basis of diversity
jurisdiction.2 Id. On April 7, 2014, Plaintiffs amended their Complaint and alleged the
following, in pertinent part:
5. On January 23rd, 2013, Petitioner Mark Powell London suffered an accident while
working as Environmental Foreman for Defendant. His wife Petitioner Judy Kay

1

2

See 28 U.S.C. § 636(c).

Defendant also removed on the basis of federal question jurisdiction. Subsequently,
however, Plaintiffs withdrew the federal claim that Defendant relied on for federal question
jurisdiction. [doc. # 9].

London worked for Defendant as Teamster, they worked for Defendant as a husband
and wife team. He and his wife, Petitioner Judy Kay London, were laid off by
Defendant.
6. Petitioner filed a workers’ compensation benefits claim against Defendant.
7. On September 29th, 2013, Petitioner Mark Powell London returned to work as
Environmental Foreman for Defendant at the previous compensation package, but
Defendant refused to put Petitioner Judy Kay London back to work in retaliation for
her husband filing a workers’ compensation claim.
8. Petitioner Mark Powell London worked for two weeks as Environmental Foreman
until pay day, when instead of receiving the promised pay, Petitioner only received
half of the agreed payment, in retaliation for having filed a workers’ compensation
claim.
9. As a direct and proximate result of Defendant’s conduct, Petitioners have suffered
difference in wages promised and paid, loss of wages, benefits and earnings in the
past; past mental anguish and emotional distress; anxiety; depression;
embarrassment; costs and attorney’s fees.
***
11. Petitioners were constructively discharged by Defendant in violation of La. R.S.
23:1361.
[doc. # 9, p. 1-2 (emphasis omitted)].
Defendant filed the instant Motions for Summary Judgment on December 3, 2014. [doc.
#s 30, 31]. Defendant claims that there is no genuine dispute of material fact concerning whether
Mark London was constructively discharged, whether Defendant retaliated against Mark and
Judy, whether Defendant’s refusal to rehire Judy was extreme and outrageous, whether
Defendant desired to inflict severe emotional distress, and whether Defendant knew that
Plaintiffs would suffer severe emotional distress as a result of its actions. [doc. #s 30-2; 31-2].3

3

On May 28, 2014, the undersigned held that Judy London did not state a claim for
retaliation because she was not within the class of persons protected by Section 23:1361, but that
she did state a plausible claim for intentional infliction of emotional distress pursuant to LA . CIV .
CODE ANN . art. 2315. [doc. # 25, p. 3-4].
2

Plaintiffs, as mentioned, oppose both Motions.
The matter is now before the Court.
Background
Defendant hired Plaintiffs Mark and Judy London to work on a pipeline construction
project in Shelocta, Pennsylvania in August of 2012. [doc. #s 30-3, p. 10; 31-3, p. 8]. As a
union member, Mark was subject to the collective bargaining agreement (the National Pipeline
Agreement or, “the NPA”), between Defendant and the Laborers’ International Union of North
America. [See doc. # 30-3, p. 2, 22]. Similarly, as a member of the Teamsters Union, Judy was
subject to the NPA between Defendant and the International Brotherhood of Teamsters. [doc. #
31-4, p. 2, 16].
The record indicates that Defendant employs at least three classifications of workers:
foremen, straws, and laborers. According to Mark, laborers are paid pursuant to state-specific
pay scales set forth in the NPA. [doc. # 30-3, p. 3]. However, Defendant’s project
superintendents set the rates of pay for foremen and straws, and Defendant chooses whether to
pay on an hourly or salaried basis. Id. at 3, 4. According to Judy London, foremen and straws
can be paid at rate “A,” the highest pay rate, rate “B,” the median pay rate, or rate “C,” the lowest
pay rate (“straw pay”). [doc. # 30-4, p. 2].
On January 23, 2013, Mark injured his shoulder while working for Defendant in
Pennsylvania. [doc. # 30-5, p. 5]. He reported the injury to Ryan Wilcox, Defendant’s Vice
President of Safety and Compliance, and Wilcox directed Mark to the on-site EMT for
evaluation. Id. Mark testified that he did not feel any pain and that the EMT informed him that
his shoulder was fine. [doc. # 30-3, p. 12]. He also testified that Wilcox told him to take care of
his shoulder and to keep him informed of any developments. Id.
3

About two days after the injury, the Pennsylvania construction job ended and Defendant
laid off most workers.4 Id. Judy testified that Plaintiffs’ layoff had nothing to do with Mark’s
injury or subsequent workers’ compensation claim; rather, they asked for a layoff because they
were “ready to go home.” [doc. # 30-4, p. 3]. A few days later, Mark called Wilcox and told
him that his shoulder was hurting but he did not want to see a doctor because he was “concerned
about [Defendant’s] safety record.” [doc. # 30-3, p. 12]. Wilcox instructed Mark to go to the
doctor if he needed to.5 Id. Mark asked, “what about our safety record,” and Wilcox responded,
“I got a way to work around that . . . .” Id.
Mark also stated that Wilcox was “upset.” Id. He speculated that Wilcox could have
been upset about “the safety record aspect of it,” but he admitted that Wilcox never said anything
to that effect. Id. Mark eventually saw a physician and received an MRI, and Wilcox paid for
both visits with his company credit card. [doc. # 30-5, p. 2, 6-7]. Wilcox avers that “[i]t is
normal procedure for the company to take care of the cost of an injury itself without reporting it
to the worker’s compensation insurer where the nature and extent of the injury is not known,”
and that “if it appears that the injury is serious or will require more than minimal time to heal,
[he] will report it to the insurer.” Id. at 2. Subsequently, due to the MRI results and “[b]ecause
of the potential for additional medical services needed,” Wilcox “filed the injury” with
Defendant’s workers’ compensation insurer. Id. at 5. Thereafter, Mark received workers’

4

Mark testified that Defendant customarily laid off all workers after a pipeline
construction job ended. [doc. # 30-3, p. 5].
5

Wilcox avers that he urged Mark to see a doctor. [doc. # 30-5, p. 2].
4

compensation to his satisfaction.6 [doc. # 30-3, p. 14].
On April 13, 2013, Mark sent a text message to Sonny Weems, Defendant’s project
superintendent, and asked him if there was a restoration position available in Pennsylvania. Id. at
15. Mark stated that he would have gone to Pennsylvania even if Defendant paid him straw pay
(rate “C”). Id. Mark did not travel to Pennsylvania. Id. On September 12, 2013, Mark sent
another text message to Weems and asked if there was a position available in Texas at a new
pipeline construction site (“the Seaway Project”). Id. at 44. The two then exchanged the
following series of text messages:
Mark: Sonny would it be safe to say that we would be called to come so that we can
reserve a trailer spot[?] [C]indy said there would be one ready [S]unday.
Weems: It might be a while before we get going I will see what I can do.
Mark: Ok [S]onny if [you] can’t work me in that’s ok I understand thanks for talking
to me today about it though please call me on [the] next one no matter what my
position I [won’t] let [you] down I will stay in touch thanks.
Weems: Ok let me see what I can do I have already got someone for the envo7 crew
but I will be in touch with you.
Id. at 15, 44.
On September 24, 2013, Weems sent a message to Mark and offered him a position at
straw pay: “I am going to put you running the Environmental crew it will be straw pay 2500
week no rain outs[.] You can hire one labor Ozone wants to come if that’s who you want to work
with.” Id. at 44. Mark accepted the same day: “Ok boss we [sic] be there this weekend thanks
[S]onny I see u [sic] when we get there.” Id. at 45.
6

Defense counsel asked Mark if he received everything to which he was entitled and
Mark responded, “Oh, yeah.” [doc. # 30-3, p. 14].
7

Mark testified that “envo” is an abbreviation for “environmental.” Id. at 15.
5

However, Mark testified that, prior to traveling to the Seaway Project in Texas, he
expected Weems to put him on the foreman pay scale because, “in between these texts,” he spoke
with Weems over the telephone and Weems told him to “come on over here . . . we’ll get things
lined out.” Id. at 16. Mark averred that, “in [his] mind,” he thought Weems intended to pay him
foreman pay. Id.
Mark also testified that Weems spoke with Judy over the telephone and informed her that
he “was going to find her a spot.” [doc. # 31-3, p. 14]. When defense counsel asked Mark why
Weems never found a position for Judy, Mark stated, “I really can’t answer that honestly and
correctly either, because I don’t know, other than the fact that they were retaliating against me
and her . . . .” Id.
Plaintiffs traveled to the Seaway Project around September 27, 2013. [doc. # 30-3, p.
16]. When they arrived at the campground where some of the other employees were staying,
Mark realized that the other workers were not speaking to him and that Weems was acting
strangely. Id. at 20. He described the scenario as follows:
“It just wasn’t the same, I mean, I-you could-it was-you could tell just people were
different in the office. It was just a different atmosphere for me, unlike any other job
I’ve ever been on. We even got treated differently at the campground. We were kind
of outside of the so-called family. Sonny didn’t even speak to us the day we got
there.
Id. Judy added that Plaintiffs usually parked their trailer next to the other workers, but this time
they were relegated to the back of the campground. [doc. # 31-4, p. 14].
On either September 28 or 29, Plaintiffs confronted Weems about “some things that
[were] being said . . . .” [doc. # 30-3, p. 16]. According to Mark, Weems said, “let’s get on the
right-of-way, get your crew started and . . . when I add to your crew . . . I’ll get your money

6

back.” Id. at 17. Mark did not elaborate on this statement in deposition; instead, he vaguely
stated, “It’s personal.” Id. at 16. Counsel for Defendant asked Mark to clarify the conversation
with Weems, but Mark stated that it was personal, that he was “not going to speculate on it,” and
that it “in no way concern[ed] the case . . . .” Id. at 17.
In the same conversation, according to Judy, Weems reiterated that he would try to find a
position for her. [doc. # 31-4, p. 11]. Judy stated that she subsequently checked with the
Teamster steward “every day for four or five days straight” to see if he could find a position for
her. Id. She also spoke with an individual named Tommy Jones, who informed her that he
would speak with Sonny Weems about a possible position as a parts runner. Id. She stated that
Tommy Jones “went over and spoke with Sonny about it and Sonny told him, ‘hell no.’” Id.
On September 30, 2013, Mark met with Kimm Lambert, a timekeeper with Defendant, to
sign a W-4 form. [doc. # 30-6, p. 1]. According to Lambert, “the information on the W-4 form
comes from the employee . . . .” Id. Knowing that he previously worked as an environmental
foreman in Pennsylvania, Lambert asked Mark if he was going to work as an environmental
foreman on the Seaway Project, and Mark said that he was. Id. Thus, Lambert noted as much in
Mark’s W-4. Id. However, Weems later informed her that “Mark was hired as a straw,” and
instructed her to change Mark’s rate of pay accordingly. Id. Lambert avers that she never spoke
with Weems prior to meeting with Mark about his W-4, that she entered foreman pay on Mark’s
W-4 form based on what Mark told her, and that if she knew “that Mark was hired as a straw,
[she] would have entered the rate for a straw in the system.” Id.
Mark began work the same day and received his first pay check approximately two weeks
later. [doc. # 30-3, p. 21]. When he looked at the check he realized that Defendant paid him

7

straw pay instead of foreman pay. Id. He worked one more day, turned in his time sheet, “never
said a word to anyone, [] walked out and got in [his] truck, [and] drove home . . . .” Id. On
October 15, 2013, Weems texted Mark and asked, “Hey Mark what’s up with you and
leaving[?]” Id. at 45. Mark answered, “Sonny I hate that I didn’t keep my word[,] things seemed
to have changed[,] we will and I especially will always be grateful to u [sic] for helping us the
way u [sic] did it’s just not for me any more thanks Sonny love u [sic] man.” Id.
Law and Analysis
I. Summary Judgment Standard
Summary judgment is appropriate when the evidence before a court 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 fact is “material” if proof of its existence or nonexistence would
affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is
such that a reasonable fact finder could render a verdict for the nonmoving party. Id.
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). “The moving
party may meet its burden to demonstrate the absence of a genuine issue of material fact by
pointing out that the record contains no support for the non-moving party’s claim.” Stahl v.
Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is

8

unable to identify anything in the record to support its claim, summary judgment is appropriate.
Id. “The court need consider only the cited materials, but it may consider other materials in the
record.” FED . R. CIV . P. 56(c)(3).8
In evaluating a motion for summary judgment, courts “may not make credibility
determinations or weigh the evidence” and “must resolve all ambiguities and draw all
permissible inferences in favor of the non-moving party.” Total E & P USA Inc. v. Kerr–McGee
Oil and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted). While courts will
“resolve factual controversies in favor of the nonmoving party,” an actual controversy exists only
“when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air. Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). To rebut a properly supported motion for summary
judgment, the opposing party must show, with “significant probative evidence,” that a genuine
issue of material fact exists. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)
(emphasis added). “‘If the evidence is merely colorable, or is not significantly probative,’
summary judgment is appropriate.” Cutting Underwater Tech. USA, Inc. v. Eni U.S. Operating
Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting Anderson, 477 U.S. at 248).
Relatedly, there can be no genuine dispute as to a material fact when a party 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 Corp., 477 U.S. at 32223. This is true “since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.

8

However, Rule 56 does not require a court to “sift through the record in search of
evidence to support a party’s opposition to summary judgment.” Willis v. Cleco Corp., 749 F.3d
314, 317 (5th Cir. 2014) (quoted source omitted).
9

When a movant bears the burden of proof on an issue, it must establish “beyond
peradventure9 all of the essential elements of the claim . . . to warrant judgment in [its] favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). In other words, the movant must
affirmatively establish its right to prevail as a matter of law. Universal Sav. Ass'n v. McConnell,
1993 WL 560271 (5th Cir. Dec. 29, 1993) (unpubl.).
II. Retaliatory Discharge
In its first Motion, Defendant argues, inter alia, that it is entitled to summary judgment on
Mark’s retaliatory discharge claim because there is no genuine dispute surrounding whether
Mark was constructively discharged. [doc. # 30]. LA . REV . STAT . ANN . § 23:1361(B) provides,
“No person shall discharge an employee from employment because of said employee having
asserted a claim for benefits under the provisions of this Chapter or under the law of any state or
of the United States.” Thus, in order to maintain a cause of action for retaliatory discharge, an
employee must establish (1) that he filed a workers’ compensation claim, (2) that he was actually
or constructively discharged, and (3) that he was fired because he filed the compensation claim.
To prove constructive discharge, “an employee must prove working conditions so
difficult or unpleasant that a reasonable person placed in that position would have felt compelled
to resign.” Bannister v. Dep’t of Streets, 666 So. 2d 641, 648 (La. 1996). In evaluating the
intolerability of the working conditions, the Fifth Circuit considers “the following factors
relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a
younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to

9

I.e., beyond doubt.
10

encourage the employee's resignation; or (7) offers of early retirement on terms that would make
the employee worse off whether the offer was accepted or not.”10 Barrow v. New Orleans S.S.
Ass’n, 10 F.3d 292, 297 (5th Cir. 1994) (citing Stephens v. C.I.T. Grp./Equip. Fin., Inc., 955 F.2d
1023, 1027 (5th Cir. 1992)).
Notably, the Fifth Circuit has also held that “[a]n employee who resigns without affording
the employer a reasonable opportunity to address her concerns has not been constructively
discharged.” Williams v. Barnhill’s Buffet Inc., 290 Fed. App’x. 759, 762 (5th Cir. 2008) (citing
Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 301 (5th Cir. 2001) (holding that, as a matter
of law, a reasonable employee would have reported sexual harassment before resigning)). “An
employee’s obligation of reasonableness requires that she not jump to conclusions and not
assume the worst.” Thompson v. Naphcare, Inc., 117 Fed. App’x 317, 324 (5th Cir. 2004).
In Thomas v. Atmos Energy Corp., 223 Fed. App’x 369, 377 (5th Cir. 2007), for instance,
the court held that a plaintiff who claimed that a coworker sexually harassed him did not suffer a
constructive discharge because he did not remain at his place of employment long enough to see
if the employer’s investigation and subsequent remedial efforts would end the alleged
harassment. The court explained, “Thomas’s precipitous resignation upon being informed of the
results of Atmos’s investigation was not the action of a reasonable employee.” Id. Similarly, in
Haley v. Alliance Compressor LLC, 391 F.3d 644, 652 (5th Cir. 2004), the Fifth Circuit affirmed
10

Louisiana courts consistently turn to federal precedent for guidance when considering
claims of constructive discharge. See Plummer v. Marriott Corp., 654 So. 2d 843 (La. App. 4
Cir. 1995) (cited with approval by King v. Phelps Dunbar, L.L.P., 743 So. 2d 181, 193 (La.
1999)); Hare v. Paleo Data, Inc., 89 So. 3d 380, 386 (La. App. 4 Cir. 2012) (examining
Louisiana’s “Intentional discrimination in employment” statute and observing, “Because this
statute is similar in scope to the federal anti-discrimination prohibitions in Title VII of the Civil
Rights Act of 1964, ‘Louisiana courts have routinely looked to the federal jurisprudence for
guidance’ . . . .”).
11

summary judgment in favor of the employer because the former employee failed to attempt
resolution of her concerns “before choosing to quit after just over two weeks back on the job.”
Here, even assuming that Weems offered Mark an environmental foreman position at
foreman pay, that Mark accepted the position, and that Defendant paid Mark straw pay, a
reasonable jury could not find that Defendant constructively discharged Mark because Mark
abruptly resigned without complaining about the payment discrepancy or otherwise giving
Defendant an opportunity to address his concerns. Mark resigned the day after he received his
first pay check. [doc. # 30-3, p. 21]. He testified that he “never said a word to anyone, [] walked
out and got in [his] truck, [and] drove home . . . .” Id. Judy London testified that they did not
speak with anyone before leaving.11 [doc. # 3-4, p. 6]. She added, “I wouldn’t have given them
the satisfaction of letting them know they did anything to us.” Id.
In addition, Weems texted Mark on October 15, 2013, and asked, “Hey Mark what’s up
with you and leaving[?]” [doc. # 30-3, p. 45]. Instead of raising his complaint with Weems, the
individual with the discretion to set pay rates,12 Mark responded, “Sonny I hate that I didn’t keep
my word[,] things seemed to have changed[,] we will and I especially will always be grateful to u
[sic] for helping us the way u [sic] did it’s just not for me any more thanks Sonny love u [sic]
man.” Id.
Mark argues, however, that he discussed his salary concerns with Weems on September
29, 2013, and Weems “made it very clear that he intended to get Mark his money back.” [doc. #

11

Kim Lambert avers that Mark entered her office on the day he quit and said, “I am out
of here.” [doc. # 30-6, p. 3]. She avers that Mark was angry because Defendant did not hire
Judy. Id.
12

[See doc. #s 30-5, p. 3; 30-3, p. 17].
12

36, p. 3]. This argument is unavailing. Preliminarily, it is not clear that Weems was referring to
the monetary concerns that form the basis of Mark’s present allegations. When defense counsel
asked Mark what Weems was referring to, Mark cryptically stated, “It’s personal.” [doc. # 30-3,
p. 16, 17]. Further, Mark intimated that Weems’s statement “in no way concern[ed] the case . . .
.” Id.
More importantly, and even resolving the aforementioned ambiguity in Plaintiffs’ favor,
Mark’s September 29, 2013 conversation with Weems could not have afforded Defendant a
reasonable opportunity to address the concerns underlying his constructive discharge allegation
because the alleged incident that gave rise to the allegation—receiving straw pay instead of
foreman pay—occurred after September 29, 2013, when he received his paycheck and realized
that Defendant paid him less than it allegedly owed him.
Even construing all inferences in Mark’s favor, a reasonable employee would not have
felt compelled to resign without first contacting the employer and attempting to resolve the
payment discrepancy. Accordingly, as a reasonable fact finder could not find that Mark was
constructively discharged, Defendant is entitled to judgment as a matter of law on Mark’s
retaliatory discharge claim.
III. Intentional Infliction of Emotional Distress
In their Amended Complaint, [doc. # 9], Plaintiffs alleged that Defendant intentionally
chose not to hire Judy in retaliation for Mark’s filing of a workers’ compensation claim and that,
as a result, they both suffered emotional distress. On May 28, 2014, the Court held that Plaintiffs
plausibly stated claims for intentional infliction of emotional distress. [doc. # 25, p. 3-4]. In its
second Motion for Summary Judgment, Defendant contends that it is entitled to judgment on

13

these claims. [doc. # 31].
To establish intentional infliction of emotional distress (“IIED”), a plaintiff must prove:
“(i) that the conduct of the defendant was extreme and outrageous, (ii) that the emotional distress
suffered by the plaintiff was severe, and (iii) 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.” Sullivan v. Park, 2014 WL 6982458, at *5 (La. App. 4 Cir. Dec. 10, 2014)
(citing White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991)). “The conduct must be so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized community.
Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities. ” Monsanto, 585 So. 2d at 1209.
Here, even assuming that Defendant did choose not to hire Judy in retaliation for Mark’s
claim, Plaintiffs still fail to establish both the first and second elements of their IIED claims.13
To begin with, Plaintiffs fail to adduce any competent summary judgment evidence that
demonstrates they suffered severe emotional distress. To prevail on an IIED claim, a plaintiff
must establish that she suffered distress “that no reasonable person could be expected to endure .
13

Defendant argues that the conduct of the employees at the campground prior to Mark’s
first day on the job, as well as Weems’ subsequent refusal to find Judy a position, did not reach
the level of extreme and outrageous behavior necessary to sustain a claim of IIED. [doc. # 31-2,
p. 14]. To reiterate, when Plaintiffs arrived at the campground, the other workers did not speak
to them, Weems acted strangely, and Plaintiffs were relegated to the back of the campground. In
addition, according to Judy, Tommy Jones spoke with Weems about finding her a position and
Weems stated, “hell no.” Defendant is correct in that these actions are not so extreme in degree
as to go beyond all possible bounds of decency. See Monsanto, 585 So. 2d at 1209 (holding that
liability does not extend to petty oppressions or trivialities and that persons must be expected to
be hardened to occasional inconsiderate and unkind acts). However, Defendant’s argument is
ultimately inapposite because Plaintiffs’ IIED claims are solely predicated on Defendant’s refusal
to rehire Judy.
14

. . .” Monsanto, 585 So. 2d at 1210. “Liability arises only where the mental suffering or anguish
is extreme.” Id. Here, Plaintiffs fail to come forth with any evidence that they sought mental
health treatment, that they are receiving counseling, that they are taking medication for anxiety or
depression, that they suffered physical symptoms associated with severe emotional distress such
as weight loss or significant loss of sleep, or any other evidence detailing the actual distress they
suffered. Consequently, no reasonable jury could find that Plaintiffs suffered severe emotional
distress.14
In addition, Defendant’s alleged retaliatory failure to hire does not amount to extreme and
outrageous conduct.15 In Stewart v. Parish of Jefferson, 668 So. 2d 1292, (La. App. 5 Cir. 1996),
for example, the court held that the plaintiff did not demonstrate extreme and outrageous conduct
even where his supervisor harassed him for two years, questioned his personal life, increased his
workload, and pressured him to accept a demotion that ultimately led to his termination. In
Glenn v. Boy Scouts of Am., 977 F. Supp. 786 (W.D. La. 1997), the court held that an employer’s
actions did not constitute extreme and outrageous conduct even where a supervisor told the
14

Mark testified that he was embarrassed when everyone on the job site asked him why
Judy was not working. [doc. # 31-3, p. 13]. He also testified that he “was humiliated beyond
belief” when he received his paycheck. [doc. # 30-3, p. 18]. These statements do not describe
the kind of extreme mental anguish which no person could be expected to endure. See Smith v.
Amedisys Inc., 298 F.3d 434, 449-50 (5th Cir. 2002) (holding that although the plaintiff alleged
she was “angry, embarrassed, disgusted, humiliated, horrified, and repulsed,” and that she
experienced “depression, headaches, and loss of appetite,” she did not suffer “unendurable”
distress).
15

As mentioned, the Court previously held that Plaintiffs stated plausible claims for IIED
based in part on Portie v. Devall Towing & Boat Serv., Inc., 637 So. 2d 1061 (La.
1994), which recognized that an employee may bring a claim for IIED when “the employer’s
intentional conduct involves the retaliatory discharge of [the] employee’s close relative.” [doc. #
25, p. 3-4]. Here, however, the circumstances surrounding Defendant’s failure to hire, as
supported by the evidence, clearly demonstrate that Defendant’s alleged conduct was not extreme
and outrageous.
15

employee that it was rumored she had a sexual affair with a previous executive, that she was a
“very sexual person,” that she was “sending out sexual vibes,” that he did not want a woman in
her position, that she was a “total disgrace,” and that she would be terminated unless she
voluntarily resigned.
Similarly, in Trahan v. Bellsouth Telecomm., Inc., 71 F.3d 876 (5th Cir. 1995), the Fifth
Circuit held that an employee failed to establish facts sufficient to constitute IIED where the
employer used a security team to tease, ridicule, and taunt the employee for over seven hours. In
Washington v. Mother Works, Inc., 197 F. Supp. 2d 569 (E.D. La. 2002), the court ruled that
allegations of repeated racial slurs, ridicule for missing work to treat a sick relative, and racially
motivated termination did not rise to the level of extreme and outrageous conduct. Finally, in
Smith v. Ouachita Parish Sch. Bd., 702 So. 2d 727 (La. App. 2 Cir. 1997), the court found that a
school board’s actions were not extreme and outrageous even when it violated an employee’s
“statutory and due process rights and caused her emotional and psychological distress by
demoting her . . . .”
Here, Defendant’s alleged refusal to hire Judy was less egregious than the actions of the
aforementioned employers. It is important to note that Defendant did not discharge Judy, it
simply chose not to re-hire her.16 While certainly condemnable, Defendant’s alleged retaliatory
employment decision was not so extreme and outrageous as to be characterized as atrocious and
16

Plaintiffs argue that the Louisiana Supreme Court, in Portie, 637 So. 2d at 1061, made
“it illegal for an employer to engage in intentional conduct involving the retaliatory discharge of
an employee’s close relative.” [doc. # 37, p. 3]. As noted, however, Defendant did not discharge
Judy. Moreover, illegal conduct is not synonymous with extreme and outrageous conduct. See
Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1025 (La. 2000) (“Conduct which is merely
tortuous [sic] or illegal does not rise to the level of being extreme and outrageous.”). Courts
require “truly outrageous conduct before allowing a claim of [IIED] even to be presented to a
jury.” Id.
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utterly intolerable in a civilized community. See Fletcher v. Wendelta, Inc., 999 So. 2d 1223,
1229 (La. App. 2 Cir. 2009) (“It is not enough that the defendant acted with an intent which is
tortious or even criminal, or that he has intended to inflict emotional distress, or even that his
conduct has been characterized by “malice” or a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort.”).
Conclusion
For the foregoing reasons, the Court finds that the record, taken as a whole, could not lead
a rational trier of fact to find for Plaintiff Mark London on his retaliatory discharge claim or to
find for both Plaintiffs on their intentional infliction of emotional distress claims. There is no
genuine dispute as to any material fact and Defendant is entitled to judgment as a matter of law.
Accordingly, IT IS ORDERED that the Motions for Summary Judgment, [doc. #s 30,
31], filed by Defendant Associated Pipe Line Contractors, Inc. are hereby GRANTED.
Judgment shall issue dismissing Plaintiffs’ claims with prejudice at Plaintiffs’ cost.
In Chambers, at Monroe, Louisiana, this 10th day of February, 2015.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

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