Bly v. United Fuels & Lubricants L L C et al

Filing 25

REPORT AND RECOMMENDATIONS re 12 MOTION to Dismiss Corey Hulin, Tony Gibson, Albert Siner and Chad Brady filed by Corey Hulin, Albert Sims, Chad Brady, Tony Gibson. Accordingly, IT IS RECOMMENDED that the motion to dismiss be GRANTED, and that all claims against defendants, Corey Hulin, Tony Gibson, Albert Sims, and Chad Brady, be DISMISSED WITH PREJUDICE. Objections to R&R due by 6/1/2009. Signed by Magistrate Judge C Michael Hill on 5/12/09. (crt,Roaix, G)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA L A F A Y E T T E DIVISION D E N N A BLY VERSUS * C I V I L NO. 09-0051 * J U D G E DOHERTY

U N I T E D FUELS & LUBRICANTS, LLC., ET AL. * M A G I S T R A T E JUDGE HILL REPORT AND RECOMMENDATION ON MOTION TO DISMISS P e n d in g before the undersigned for Report and Recommendation is the Motion to D is m is s filed by defendants, Corey Hulin, Tony Gibson, Albert Sims, and Chad Brady (" D e f en d a n ts " ), on February 25, 2009. [rec. doc. 12]. Plaintiff, Denna Bly ("Bly"), has filed o p p o s itio n . [rec. doc. 16]. Defendants filed a reply brief. [rec. doc. 23]. The matter was s u b m itte d on briefs. B a c k gro u n d B ly brought this sex discrimination action against her former employer, United Fuels a n d Lubricants, L.L.C. ("UFL"), and four UFL employees, Corey Hulin, Tony Gibson, Albert S im s, and Chad Brady, claiming that she was sexually harassed and subjected to a hostile work e n v iro n m e n t. She filed suit pursuant to 42 U.S.C. § 1988, Title VII of the Civil Rights Act of 1 9 6 4 , 42 U.S.C. §§ 2000e et seq.,29 C.F.R. § 1604.11, and Louisiana law. In the instant motion, defendants seek to dismiss Bly's claims on the grounds that: (1) th e complaint does state a cause of action against them as individuals, and (2) plaintiff's state la w claims have prescribed.

L a w and Analysis S ta n d a r d for Motion to Dismiss In deciding a Rule 12(b)(6) motion to dismiss, the court "accepts all well-pleaded facts a s true, viewing them in the light most favorable to the plaintiff." Guidry v. American Public L ife Ins. Co., 512 F.3d 177, 180 (5 th Cir. 2007) (citing In re Katrina Canal Breaches Litig., 495 F .3 d 191, 205 (5th Cir. 2007), petition for cert. filed, (U.S. Nov. 26, 2007) (No. 07-713)). The p la in tif f must plead "enough facts to state a claim to relief that is plausible on its face." Id.; B e ll Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level, on the a ss u m p tio n that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1 9 6 5 (citation and footnote omitted). In resolving a Rule 12(b) motion, the court is generally limited to considering only those a lleg a tio n s appearing on the face of the complaint. Cyrio v. Hunt, 2007 WL 2772222 at * 4 (E .D . La. Sept. 19, 2007). However, matters of public record, orders, items appearing in the re c o rd of the case and exhibits attached to the complaint may be taken into account. Id. (citing C h e ste r County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd C ir.1 9 9 0 )). "Documents that a defendant attaches to a motion to dismiss are considered part of th e pleadings if they are referred to in the plaintiff's complaint and are central to [the] claim." C a u s e y v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004) (citing Collins v.

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M o r g a n Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.2000)). L ia b ility of Individual Defendants B ly brought claims against Corey Hulin, Tony Gibson, Albert Sims, and Chad Brady p u rs u a n t to Title VII and Louisiana's Employment Discrimination Law, LA. REV. STAT. 2 3 :3 0 1 et seq. ("LEDL"). Defendants claim that because they were not Bly's "employer", as d e f in e d by Title VII and the LEDL, they have no liability. LA. REV. STAT. 23:302(2) provides, in pertinent part, as follows: " E m p lo ye r" means a person, association, legal or commercial entity, the state, or a n y state agency, board, commission, or political subdivision of the state receiving s e rv ic e s from an employee and, in return, giving compensation of any kind to an e m p l o ye e . D e f en d a n ts assert that employees or supervisors cannot be held individually liable under L o u is ia n a law and Title VII. It is undisputed that Bly performed services for, and received c o m p en satio n from, UFL, not the individual defendants. Since the individual defendants were n o t Bly's "employer" under LEDL, Bly has no claim under Louisiana law against them. Smith v . Amedisys, Inc., 298 F.3d 434, 448 (5 th Cir. 2002).Additionally, Bly has no claim against th e s e defendants under federal law. Louisiana courts, and federal courts applying Louisiana law, have routinely looked to f e d e ra l jurisprudence to interpret Louisiana employment discrimination statutes. Id. at 448-449 (5 th Cir. 2002) (citing Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir.1998)). Under Title V II, an "employer" includes any "person engaged in an industry affecting commerce . . . and a n y agent of such a person." 42 U.S.C. § 2000e(b). The Fifth Circuit has held that there is no 3

in d iv id u a l liability for employees under Title VII. See Indest v. Freeman Decorating, Inc., 164 F .3 d 258, 262 (5th Cir.1999); Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.1994). While T itle VII's definition of the term employer includes "any agent" of an employer, Congress's p u rp o se was merely to import respondeat superior liability into Title VII. See Indest, 164 F.3d 2 5 8 at 262; Grant, 21 F.3d 649 at 652 (citing Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir.1993)). A c c o rd in g ly, under the reasoning of this Circuit's case law interpreting Title VII, the in d iv id u a l Defendants cannot be liable to Bly in their individual capacities. See, e.g., Rhyce v. M a rtin , 173 F.Supp.2d 521, 534 (E.D. La.2001). Thus, the undersigned recommends that the m o tio n to dismiss be GRANTED. P r e sc rip tio n A s an alternative ground for dismissal, defendants argue that Bly's claims under Louisiana la w have prescribed. U n d er Louisiana law, delictual actions are subject to a liberative prescription of one year, w h ich commences to run from the day injury or damage is sustained. LA. CIV. CODE ANN. Art. 3 4 9 2 ; Daigle v. McCarthy, 444 F.Supp.2d 705, 710 (W.D. La. 2006). Damage is considered to h a v e been sustained, within the meaning of the article, only when it has manifested itself with s u f f ic ie n t certainty to support accrual of a cause of action. Id. (citing Cole v. Celotex Corp., 620 S o .2 d 1154, 1156 (La. 1993)).

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In this case, the Complaint alleges that Bly was subjected to sexual harassment and a hostile w o rk environment during her employment from February 15, 2007 to September 20, 2007. [rec. d o c . 1, ¶ 10]. The Complaint was filed on January 13, 2009, which was more than a year after the a lle g e d acts occurred. Accordingly, on the face of the complaint, these claims have prescribed u n d e r Louisiana law. In Bly's opposition brief, she argues that because she has set forth facts sufficient to support c la im s for "assault, battery, sexual battery and intentional infliction of emotional distress," the p re sc rip tiv e period of two years for crimes of violence applies. LA. CIV. CODE ANN. Art. 3 4 9 3 .1 0 . However, after reviewing the Complaint, the undersigned finds that plaintiff has failed to plead that a crime of violence occurred. L.R.S. 14:2 B. Thus, this argument lacks merit.

Conclusion A c c o rd in g ly, IT IS RECOMMENDED that the motion to dismiss be GRANTED, and that a ll claims against defendants, Corey Hulin, Tony Gibson, Albert Sims, and Chad Brady, be D IS M I S S E D WITH PREJUDICE. U n d er the provisions of 28 U.S.C. § 636(b)(1)(C) and F.R.Civ.Proc.72(b), parties aggrieved b y this recommendation have ten (10) business days from service of this Report and R e c o m m e n d a tio n to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel a re directed to furnish a courtesy copy of any objections or responses to the District Judge at the

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time of filing. F A IL U R E TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FACTUAL F I N D I N G S AND/OR THE PROPOSED LEGAL CONCLUSIONS REFLECTED IN THIS R E P O R T AND RECOMMENDATION WITHIN TEN (10) DAYS FOLLOWING THE D A T E OF ITS SERVICE, OR WITHIN THE TIME FRAME AUTHORIZED BY F E D .R .C IV .P . 6(b), SHALL BAR AN AGGRIEVED PARTY FROM ATTACKING THE F A C T U A L FINDINGS OR THE LEGAL CONCLUSIONS ACCEPTED BY THE D I S T R I C T COURT, EXCEPT UPON GROUNDS OF PLAIN ERROR. DOUGLASS V. U N IT E D SERVICES AUTOMOBILE ASSOCIATION, 79 F.3D 1415 (5TH CIR. 1996). S ig n e d May 12, 2009, at Lafayette, Louisiana.

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