United States District Court, M.D. Louisiana
HECTOR A. SANTOS,
J.W. GRAND, INC
SHELLY D. DICK, District Judge.
This matter is before the Court on a Motion for Summary Judgment filed by Defendant, J.W. Grand, Inc. ("Grand"). Plaintiff, Hector Santos ("Santos") has filed an Opposition  to which Grand filed a Reply.  For the following reasons, the Court grants in part and denies in part Grand's Motion.
Santos, who is Hispanic and of Salvadoran descent, has brought this lawsuit against his former employer, Grand, asserting harassment/hostile work environment and retaliation claims on the basis of his race and national origin under Title VII and the Louisiana Employment Discrimination Law ("LEDL"). Santos worked for Grand from May 19, 2009 until July 1, 2009 on the BASF Project. Santos, a carpenter, was part of a small crew led by Grand's foreman, Joseph Martinez ("Martinez"), who is Hispanic and of Spanish descent. According to Santos, he was subjected to derogatory comments by Martinez while they were both working on the jobsite. For instance, Santos contends that Martinez called him derogatory names, such as "wetback" and "frijolero", and asked Santos if he had a place to live or if he was homeless. Santos' former crew-member, Rondell Albert, claims to have heard Martinez make derogatory comments to Santos several times per day for at least one week while working on the BASF project. Santos further claims to have reported Martinez's behavior to Preston Pace, Grand's Supervisor, on at least four occasions, including his last day of employment, but no action was taken and the derogatory statements continued. As a result of the hostile working environment, Santos asserts that he was forced to end his employment on July 1, 2009.
On August 24, 2009, Santos timely filed a Charge of Discrimination with the Louisiana Commission on Human Rights in which he reiterated his claims of race and national origin discrimination against Martinez, specifically claiming that the derogatory comments were made on May 19, 2009 and May 25, 2009. On April 24, 2009, the EEOC issued a Determination Letter finding that Santos had been harassed and subjected to a hostile work environment by his supervisor. The EEOC also found that, although Santos had complained to his superintendent, Grand took no action to stop the harassment, forcing Santos to quit. Subsequently, the EEOC issued a Right to Sue Letter to Santos in which it stated that it had found reasonable cause to believe that some violation had occurred. On November 7, 2012, Santos filed the pending lawsuit.
Grand now moves for summary judgment on Santos' federal and state harassment/hostile work environment and retaliation claims. Grand further argues that, as a matter of law, Martinez is not a supervisor; therefore, Grand may only be liable for harassment if Santos can prove it was negligent. Additionally, Grand raises several evidentiary challenges to the material offered by Santos to defeat the summary judgment motion. Considering the EEOC's finding of discrimination, the testimony of Santos' former crew member, the frequency of the derogatory statements, and the conflicting facts, Santos contends that summary judgment is unwarranted.
II. LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "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." "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.'" If the moving party satisfies its burden, "the non-moving party must show that summary judgment is inappropriate by setting forth specific facts showing the existence of a genuine issue concerning every essential component of its case.'" However, the non-moving party's burden "is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence."
Notably, "[a] genuine issue of material fact exists, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" The Court must resolve all reasonable factual inferences in favor of the nonmoving party. However, "[t]he 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." "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."'"
III. LAW AND ANALYSIS
In his Complaint , Santos has asserted harassment/hostile work environment and retaliation claims under both Title VII and the LEDL. The Court's analysis of Santos' harassment/hostile work environment claims under the LEDL is the same as its analysis of Santos' claims under Title VII. However, the same is not true for Santos' retaliation claims. This Court recently held that the Louisiana Legislature's 2014 amendments to the LEDL which create a cause of action for retaliation in employment based on race and national origin are not retroactive. Considering that Santos' EEOC Charge and the filing of the pending lawsuit preceded the LEDL amendments,  the Court finds that Santos does not have a viable retaliation claim under the LEDL. Hence, Santos' retaliation claims shall be evaluated under Title VII.
A. Evidentiary Challenges
In its Reply Brief , Grand seeks to have the entirety of Santos' EEOC FOIA file and deposition transcripts offered in their entirety stricken from the record because Santos has failed to articulate the manner in which such evidence supports his claims. The Court finds that Santos actually did identify those particular portions of his EEOC FOIA file and depositions that he deemed to support his claim. Therefore, the content of these exhibits will not be stricken on these grounds.
In the alternative, Grand requests that the Court exclude those portions of the deposition transcripts and EEOC FOIA report that amount to inadmissible hearsay or opinion testimony, speculation, or conclusory facts, as opposed to being based on personal knowledge. While Grand puts forth this argument, it fails to identify which specific portions of these documents should be stricken. The Court is very well aware of its responsibility to only consider evidence that would be admissible at trial in reaching a decision on a motion for summary judgment. The Court will apply this standard in conducting its analysis of the deposition testimony relied upon by both parties.
As for Santos' EEOC FOIA report, while the EEOC's report and determination letter are admissible under the business records hearsay exception, it does not apply to the underlying material collected during the EEOC's investigation. Instead, the underlying investigative material must be admissible on its own grounds. Within the EEOC FOIA file, the Court finds that the EEOC's Right to Sue and Determination Letters are admissible under the business records exception. As for the remaining content, to the extent the file consists of letters,  a record log,  miscellaneous notes,  and income tax forms,  these documents cannot be used to defeat summary judgment because they are unauthenticated, not in the form of an affidavit, and do not indicate that they are made on personal knowledge as required by Rule 56(c)(4) of the Federal Rules of Civil Procedure. Therefore, these documents will not be considered by the Court in its summary judgment analysis. However, Santos' signed Charge of Discrimination  which is also included in the EEOC FOIA file, does satisfy these requirements and, therefore, is proper summary judgment evidence.
Grand's final argument goes to the weight that the EEOC's Determination Letter should be afforded on summary judgment. It is Grand's position that, while the EEOC's determination of reasonable cause may be admissible evidence, the Court is not bound by the EEOC's finding. The Court agrees. While the Determination Letter shall be deemed admitted, the Court will not treat it more favorably than any other evidence. Rather, the Court will consider the ...