United States District Court, E.D. Louisiana
July 13, 2015
ANDY C. OLMEDA
CAMERON INTERNATIONAL CORPORATION, ET AL
Andy C Olmeda, Plaintiff: Glenn Charles McGovern, LEAD
ATTORNEY, Glenn C. McGovern, Attorney at Law, Metairie, LA.
Cameron International Corporation, Defendant: Drew B. Tipton,
PRO HAC VICE, Baker & Hostetler (Houston), Houston, TX.
PMG, Inc., a/k/a doing business as Personal Management Group,
doing business as PMG, Defendant: Sidney Jay Hardy, LEAD
ATTORNEY, McCranie, Sistrunk (New Orleans), New Orleans, LA;
Bradley D. Hauswirth, PRO HAC VICE, Wagner, Falconer & Judd,
Ltd., Minneapolis, MN.
Perez, Defendant, Pro se, Morgan City, LA.
Scott Carrington, Defendant: Preston Lee Hayes, LEAD
ATTORNEY, Matthew Arthur Sherman, Chehardy, Sherman, Ellis,
Murray, Recile, Griffith, Stakelum& Hayes, Metairie, LA.
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.
the Court are four motions: (1) Cameron International
Corporation's motion for summary judgment; (2) Cameron
International Corporation's objections and motion to
strike plaintiff's summary judgment evidence; (3)
Personnel Management Group, Inc.'s motion for summary
judgment; and (4) Personnel Management Group, Inc.'s
objections and motion to strike plaintiff's summary
judgment evidence. For the reasons that follow, the motions
to strike are GRANTED in part and DENIED in part and the
motions for summary judgment are GRANTED.
employment discrimination lawsuit arises from an
off-premises, off-duty drive-by shooting incident on Highway
90 around Morgan City, Louisiana. Hours after leaving work,
one drunk employee, Scott Carrington, was being driven by
another drunk employee, Billy Perez; they had decided to
scare a co-worker, Andy Olmeda, by firing a shotgun in the
vicinity of his moving vehicle. That they did. After driving
about 30 miles, Perez and Carrington pulled up behind and
fired a shotgun at Olmeda's truck as they all drove
northbound up the highway.
Management Group, Inc., a Bloomington, Minnesota company,
recruits and deploys temporary skilled manufacturing laborers
and provides labor solutions to manufacturing companies in
the United States. For companies facing labor shortages,
peak season, production backlog, or other labor crises, PMG
provides skilled temporary replacement labor. PMG recruits do
part-time contract work and have no guarantee of employment.
PMG supplies employees to Cameron International Corporation
on an as-needed basis.
C. Olmeda is half-white and half-Hispanic. Olmeda, a PMG
temporary contract worker, began working at Cameron as a
machinist at its facility in Berwick, Louisiana in May
2013. Olmeda was placed at Cameron by PMG
recruiter Joe Coombs. PMG reported Olmeda's race as
" white" to Cameron when providing employee
information. Olmeda admits that he may have told PMG that he
machinist, Olmeda made parts for offshore and onshore
drilling; he worked on blow-out preventers, valve bodies,
couplings, and generally anything that was associated with a
valve. During the workweek, PMG provided Olmeda with a hotel
room in Morgan City, five miles from Cameron's Berwick
facility. Olmeda worked the night, or second, shift with
15-20 other workers; his regularly scheduled hours were from
4:00 p.m. to 4:00 a.m. Cameron held safety meetings at the
start of each shift every day. After those meetings, Olmeda
received his tasks for the evening and went to his machine in
the shop, which is a large warehouse. Cameron's Angelo
Cardinale was in charge of second shift. Cardinale reported
to Melvin Burger, the senior production
does not complain of any specific problems between him and
his co-workers from May through early September 2013; at
least none that he reported. But in the days leading
up to the shooting on September 14, 2013, Olmeda submits that
things happened to stir up hostility between him and other
workers at Cameron. After a safety meeting on September 9,
2013, Olmeda announced to his co-workers that they should be
ashamed of themselves for having Cardinale clean up after
them. Construing this as obsequiousness, the next day some of
Olmeda's co-workers (Scott Carrington, Trent Basas, and
Thomas Bragg) yelled for hours at Olmeda, calling him "
snorkel." Olmeda believes that " snorkel"
meant that he had his " head so far up [Cardinale's]
ass that [he] needed a snorkel to take a breath." Olmeda
believes that Scott Carrington (then an apprentice at
Cameron) came up with the nickname " snorkel."
Olmeda understood this to be typical shop talk, guys on the
floor giving each other a hard time.
next day, Wednesday, September 11, 2013, another employee
complained to Cardinale at the safety meeting that people had
been yelling " snorkel" the night before. This
being the first he had heard of it, Cardinale spoke with
Olmeda, and then he informed Burger. Burger spoke to Olmeda,
who said that it was Bragg who was the instigator. Burger
instructed Bragg to stop and to apologize to Olmeda. Bragg
apologized to Olmeda, who put the incident behind him. Burger
followed up with Olmeda the next day to confirm Bragg had
apologized. Olmeda never complained to Cardinale
same day, some of the second shift employees lined up to
purchase boots from a vender. Olmeda and Scott Carrington
exchanged profanities. According to Carrington, Olmeda
bragged about owning luxury cars and a multi-million dollar
house. Annoyed, Scott Carrington called him a " f--king
liar."  Olmeda says that Carrington was
walking with Billy Perez when he (Carrington) called
Olmeda " f--king dumba-- mother f--ker" or he may
have " told me to get the fuck out of the way, fucking
Mexican or something like that." Olmeda told Carrington
" f--k you" and gestured with his middle finger. At
the truck on September 11 " was the first time
[Carrington] made a racial comment" to Olmeda.
next day, on Thursday, September 12, 2013, Carrington shouted
" Hey you dumb mother f--ker." Olmeda told
Cardinale, who called Carrington into his office. Carrington
then walked up to Olmeda at his machine and said the same
thing. Olmeda responded:
Look Scott, you must be stupid or something. Don't you
realize that this is the work place and I could bring
harassment charges up against you, which you probably would
lose your job, then I would sue you in civil court and then
I'd be the one laughing because you're a moron?
exchange escalated: Carrington said " Oh so that is how
it's going to be," to which Olmeda responded, "
No don't you see you're the one who is doing it, not
me, I'm just there to [make] sure you have enough
rope." The exchange culminated (Olmeda submits) into a
threat by Carrington. Olmeda reported the threat to
Cardinale. Cardinale agreed to email Burger and then sent
Olmeda home around midnight that night because Olmeda was
angry and needed to cool off. Bragg called Olmeda at his
hotel room, telling him not to make " harassment
reported to work at 4:00 p.m. on Friday, September 13, 2013.
Carrington and Perez left work four hours into second shift,
around 8:00 p.m. Sometime later, Perez picked up Carrington
in Morgan City. Accompanied by another co-worker named Trent
Basas, they first went to a restaurant and bar called Twin
Peaks, where they ate and drank beer and liquor. Then they
went to a pool hall in Houma, where they continued to drink
alcohol over the next few hours. They got very intoxicated.
On the way back to Morgan City, they dropped off Trent. It
was during this time of " heav[y] intoxict[ion]"
that Perez and Carrington decided that they would find Olmeda
and fire a shotgun near his truck to frighten him. They went
to Carrington's house, where Carrington got his shotgun
and, at some point, Carrington loaded it. Although "
hazy" from drinking, the plan was to find and follow
Olmeda and " then do something to just scare him."
When Perez blinked the high beams on his truck, that was the
signal for Carrington to shoot, not at Olmeda's vehicle,
but toward the woods, as he drove by.
left his shift at the normal time, around 4:00 a.m. on
Saturday morning, September 14. He went to his hotel room,
preparing to leave town to go to his house in Mandeville for
the weekend. Olmeda then met a friend at Wal-Mart in Morgan
City at 5:00 a.m. to pick up a kitten to take with him. He
then filled up his truck with gas and started down Highway 90
toward Mandeville. At some point, Perez and Carrington saw
Olmeda on the road and waited for him and followed him. After
driving about 30 miles on Highway 90, Perez pulled behind
Olmeda and Carrington shot in the vicinity of Olmeda's
truck, according to Carrington only hitting Olmeda's
truck by accident. Olmeda submits that his tire exploded and
that rounds struck his truck.
pulled into a parking lot, where he called Cardinale, who
told him to call the police; he also called his girlfriend
and the police. Olmeda also left a voicemail for Burger; when
Burger heard the voicemail, he called his supervisor (Duane
Carriere), PMG's human resources manager (Kelly Lambert),
and the PMG liaison, Erich Heitman. Olmeda called PMG's
Joe Coombs. Coombs told Olmeda to go back to the Berwick
facility to get his tools. Olmeda refused, saying "
I'm the victim . . . I'm going to stay home[; ] I
just got fired upon." Coombs sent an email to others at
PMG regarding the incident, advising that he had "
explained [to Andy] given this highly dramatic and chaotic
nature of this incident, be prepared for this assignment
ending, if for no other reason than his safety may not be
assured while away from work." PMG submitted a
replacement for Olmeda's position. Cameron suspended
Carrington and Perez pending an investigation; Cameron
considered the incident to be a criminal matter to be handled
by the police department.
Cameron learned of the shooting, Burger talked with workers
in the second shift as they reported to work on the day of
the incident. Bragg prepared a written statement about the
argument that occurred between Olmeda and Carrington the day
before the shooting; Bragg states:
On 9-12-13, I was approached by Andy Olmeda and told about a
confrontation between himself and Scott Carrington. Andy told
me that Scott had approached Andy's area to get some
holding clamps from a cabinet. According to Andy, Scott had
called him a dumb shit. Andy then told Scott that he should
shut the f__ up or that he (Andy) would own Scott's
truck, his house, everything, and that Scott would be working
for Andy for the rest of his life. And that Scott would not
have a job anymore. I do not know what Scott's response
was to Andy, other than when Scott came to my machine and
told me what happened. All Scott said about it was that Andy
could get a brick thru his windshield. At no time did Scott
threaten to kill or harm Andy.
Blake Tabor of the Terrebonne Parish Police Department
investigated. Detective Tabor asked Olmeda to submit a
detailed narrative of the events leading up to and including
the shooting, which Olmeda did a few days
later. Nowhere in the statement does Olmeda
mention anything about race or any racial comments made to
him. During the course of the interview and investigation,
Olmeda never mentioned that race or ethnicity played any role
in his interactions with Carrington and Perez. The
investigation report lists Olmeda as " white" and
his ethnicity as " non-Hispanic."
Monday, September 16, 2013 the next workday after the
shooting, Cameron was notified by law enforcement that Perez
and Carrington admitted firing a weapon in the vicinity of
Olmeda's vehicle. Cameron immediately terminated Perez
and Carrington. Olmeda never returned to the Cameron
facility; PMG had pulled Olmeda and set up a
replacement. Cameron did not request or suggest
that Olmeda not be allowed to return to work; PMG made that
decision. On September 17, 2013, Burger emailed PMG and
confirmed that Cameron's human resources department
approved replacing Olmeda. More than five months later on
February 25, 2014 Olmeda filed an EEOC charge, asserting that
he was harassed due to national origin. A right to sue letter
was issued on June 11, 2014.
to the shooting on September 14, Olmeda never told PMG or
Cameron that he was getting harassed due to his ethnicity or
race. Olmeda never filed a complaint with PMG or Cameron
complaining about racial slurs, phrases, or discrimination
based on race or ethnicity. Nor did he report to PMG that he
feared for his life or safety, or that someone had threatened
him physically. The first time PMG was aware that Olmeda was
asserting that he was harassed due to race or ethnicity was
when PMG received the EEOC complaint dated February 25, 2014.
February 25, 2014 Mr. Olmeda filed a charge of national
origin discrimination and retaliation with the EEOC; he
alleged that he complained daily to supervisors and human
resources, to no avail, and that, ultimately, Perez and
Carrington followed him and shot at him. He finally writes
" I was fired in retaliation."  The EEOC
issued Olmeda a right to sue letter on June 11, 2014.
August 20, 2014 Olmeda sued Cameron International
Corporation; PMG, Inc. d/b/a a/k/a Personal Management Group
d/b/a PMG; Billy Perez; and Scott Carrington. Seeking
declaratory, injunctive, and monetary relief, Olmeda
initially purported to advance six causes of action, which he
describes in the complaint as:
(1) retaliation due to sexual harassment, in
violation of Title VII and negligent screening, hiring, and
supervising; (2) unlawful discriminatory employment practices
under Title VII and Louisiana state law; (3) lack of policy
for racial harassment, discrimination and retaliation and
violence in the workplace in violation of state law; (4)
assault and battery [and] intentional infliction [of
emotional distress by] Dwight Caton; (5) compensatory and
punitive damages under Title VII are allowed; (6) vicarious
liability against ... Cameron and PMG ... strictly liable as
joint tortfeasors in a common enterprise.
alleges that his employment was terminated the day after the
shooting incident, even though he had never received any
write-ups or negative performance evaluations. Cameron
submits that it did not fire Olmeda, and PMG submits that
Olmeda was not returned to his assignment with Cameron
because, among other reasons, it could not protect him. On
November 5, 2014, the Court granted in part and
denied in part PMG's motion to dismiss; Olmeda's
claims against PMG for workplace harassment and retaliation
survived the motion. Neither defendants Carrington nor Perez
have filed any motions. Cameron and PMG now, separately, seek
summary judgment dismissing Olmeda's claims against them.
They also seek to strike certain evidence submitted by the
Rule of Civil Procedure 56 instructs that summary judgment is
proper if the record discloses no genuine dispute as to any
material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact
exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio., 475
U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A
genuine dispute of fact exists only " if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
Court emphasizes that the mere argued existence of a factual
dispute does not defeat an otherwise properly supported
motion. See id. Therefore, " [i]f the evidence is merely
colorable, or is not significantly probative," summary
judgment is appropriate. Id. at 249-50 (citations
omitted). Summary judgment is also proper if the party
opposing the motion fails to establish an essential element
of his case. See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this
regard, the non-moving party must do more than simply deny
the allegations raised by the moving party. See Donaghey
v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649
(5th Cir. 1992). Rather, he must come forward with competent
evidence, such as affidavits or depositions, to buttress his
claims. Id. Hearsay evidence and unsworn documents
that cannot be presented in a form that would be admissible
in evidence at trial do not qualify as competent opposing
evidence. Martin v. John W. Stone Oil Distrib.,
Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P.
56(c)(2). " [T]he nonmoving party cannot defeat summary
judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007)(internal quotation marks and citation omitted). In
deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most
favorable to the nonmoving party. Scott v. Harris,
550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Although the Court must " resolve factual controversies
in favor of the nonmoving party," it must do so "
only where there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830
(5th Cir. 2013)(internal quotation marks and citation
and PMG seek to confine the scope of the summary judgment
record. First, both point out that Olmeda's separate
statement outlining his contested issue of genuine issues of
material facts fails to comply with this Court's Local
compliance with Local Rule 56.1, Cameron and PMG submitted
separate statements of material facts as to which they
contend there is no genuine issue to be tried. The plaintiff,
however, submits a list of 43 facts that he alleges are
genuinely disputed. This complies, in part, with Local Rule
56.2 (in that plaintiff submitted a statement of material
facts as to which he contends there exists a genuine issue to
be tried). But the plaintiff fails to controvert all material
facts in Cameron's and PMG's statements and, thus,
those facts not controverted are deemed admitted for the
purposes of the pending motions for summary judgment. See
Local Rule 56.2 (" [a]ll material facts set forth in the
statement required to be served by the moving party will be
deemed admitted, for the purposes of the motion, unless
controverted as required by this rule." ).
both PMG and Cameron have filed objections and motions to
strike certain evidence, including (1) the unsworn Thomas
Bragg interview transcript; (2) Andy Olmeda's sworn
affidavit; (3) Laura Hawkins' sworn affidavit; (4) all
photographs; (5) all documents regarding the EEOC complaint;
and (6) all documents submitted without proper foundation or
containing hearsay or other inadmissible statements.
resolving a motion for summary judgment, the Court " may
only consider admissible evidence." Coleman v. Jason
Pharmaceuticals, 540 Fed.Appx. 302, 306 (5th Cir.
2013)(citing Fed.R.Civ.P. 56(c)(2) and Mersch v. City of
Dallas, 207 F.3d 732, 734-35 (5th Cir. 2000)). Rule
56(c)(2) allows a party to " object that the material
cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence."
The Unsworn Bragg Telephone Interview Transcript
plaintiff insists that Bragg's " testimony" is
essential to the issues of whether Cameron supervisors were
aware of " the horrific events" experienced by
Olmeda and as to whether or not such conduct occurred during
working hours. Olmeda urges the Court to deny the motions to
strike this evidence because he is " trying to have him
served for the July 6, 2015 phone/video deposition."
 Insofar as Olmeda submits the
unsigned, unsworn Bragg transcript to show the truth of the
matter asserted by Bragg, it is inherently unreliable and is
inadmissible hearsay (Federal Rule of Evidence 801(c)), for
which plaintiff offers no exception; the plaintiff likewise
fails even to suggest how the material can be presented in a
form that would be admissible in evidence. The Court
strikes the Bragg transcript from the summary judgment record
and disregards it.
and PMG object to Olmeda's post-deposition affidavit and
seek to strike it from the summary judgment record. They
insist that Olmeda's affidavit contradicts his prior
sworn deposition testimony without explanation. Olmeda
counters that his affidavit is admissible and that the Court
cannot disregard it merely because it is self-serving. The
Court agrees that it may not disregard evidence merely
because it is self-serving. However, Olmeda's affidavit
contains statements that contradict his prior deposition
testimony. He likewise fails to offer any explanation for the
conflict; such statements will be disregarded insofar as they
serve only to improperly manufacture a fact issue.
filed in opposition to a motion for summary judgment may not
be offered to contradict prior sworn testimony, without
explanation. McCulley v. JTM Industries, Inc., 116
F.3d 1477 (5th Cir. 1997)(unpublished, per curiam );
Doe ex rel. Doe v. Dallas Indep. Sch. District, 220
F.3d 380, 386 (5th Cir. 2000)(approving endorsement of the
rule that " a plaintiff may not manufacture a genuine
issue of material fact by submitting an affidavit that
impeaches prior testimony without explanation" ).
are clear contradictions between Olmeda's deposition
testimony and the statements in his later, sworn affidavit.
Defendants offer several examples. (1) Olmeda testified that
the only person that used a racial slur was Scott Carrington;
yet in his affidavit, Olmeda states that he was " called
a Beaner, a derogatory term of Mexican and subjected to
racial slurs . . . on a daily basis by Thomas Bragg,. . .
Scott Carrington, Billy Perez and numerous other
employees." (2) Olmeda testified that Carrington made
the " first" racial slur to him in the few days
prior to the shooting (called a " f--king Mexican"
at the boot sale truck) and that Carrington called him a
" beaner" (derogatory for Mexican) after the "
snorkel" incident in the days leading up to the
shooting. But in his affidavit, Olmeda states that he
complained to PMG about racial slurs from the first month of
his employment at Cameron. (3) In his deposition, Olmeda
testified that he did not tell the police anything about
racial slurs during the investigation into the shooting
incident; in his affidavit, he states he told the detectives
about racial slurs. (4) Olmeda testified that he called
PMG's Joe Coombs four times in the week before the
shooting, only left one message, and did not specifically
state anything of substance in the message; yet in his
affidavit, Olmeda states that he made several calls about
racial slurs to Coombs since late June 2013 and that he left
" messages" for Coombs.
challenges other portions of Olmeda's affidavit on
additional grounds of hearsay and lack of personal
knowledge. In support of its objection based on improper
legal conclusions or lack of personal knowledge, Cameron
challenges statements in Olmeda's affidavit in which he
suggests that Billy Perez had threatened others in the past
and was rehired by Cameron. Because Olmeda has not
demonstrated his personal knowledge, the Court will disregard
such statements. See Rule 56(c)(4) (" [a]n affidavit or
declaration used to support or oppose a motion must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is
competent to testify." ).
Affidavit of Laura Hawkins
submits a sworn affidavit of his girlfriend, Laura Hawkins.
PMG and Cameron object to its consideration on the grounds
that it contains multiple hearsay statements, contradicts his
own deposition, lacks foundation, and otherwise fails to
contain admissible evidence. For the most part, the
Olmeda seeks to offer the content of many of Ms. Hawkins'
statements as truthful, the Court will not consider those
hearsay statements. Some of what Ms. Hawkins swears to is
that, in the days leading up to the shooting (and before then
on dates that she does not remember), Olmeda called her,
asking her to call Coombs to complain that Olmeda was being
called " a Beaner and Spic, fat ass Mexican, and a dumb
ass Beaner; "  she says that she left messages, but
she never heard back from Coombs. That Hawkins swears that
she left messages for Coombs is proper summary judgment
Challenges to Other Evidence
as the defendants challenge the admissibility of photographs
and other evidence, the plaintiff has failed to respond to
these objections. The defendants' objections are
therefore sustained as unopposed and because, as submitted,
these exhibits indeed lack foundation. The Court disregards
this other evidence, which is listed in the defendants'
papers. The Court notes that the plaintiff does not appear to
rely on this evidence; of course, the Court would not be
tasked with considering any materials that are not cited in
the papers. See Fed.R.Civ.P. 56(c)(3).
alleges two Title VII claims against each of PMG and Cameron:
hostile work environment and retaliation.
Cameron seek judgment as a matter of law dismissing the
plaintiff's Title VII hostile work environment
VII of the Civil Rights Act of 1964 prohibits employers from
discriminating " 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." 42 U.S.C. §
establish a race or national origin-based hostile work
environment claim, a plaintiff must prove that: (i) he
belongs to a protected class; (ii) he was subjected to
unwelcome harassment; (iii) the harassment was based on his
race or national origin; (iv) the harassment affected a
" term, condition, or privilege of her employment"
; and (v) his employer knew or should have known of the
harassment and failed to take prompt, remedial action.
Hockman v. Westward Communications, LLC, 407 F.3d
317, 325, 122 Fed.Appx. 734 (5th Cir. 2004); Frank v.
Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003).
determine whether a hostile work environment exists, in
particular whether the harassment affects a term or privilege
of employment, the Court applies a
totality-of-the-circumstances test that focuses on " the
frequency of the discriminatory conduct; its severity; and
whether it unreasonably interferes with an employee's
work performance." Turner v. Baylor Richardson
Medical Center, 476 F.3d 337, 347 (5th Cir. 2007)(citing
Walker v. Thompson, 214 F.3d 615, 625 (5th Cir.
2000)(quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993)).
Although " [d]iscriminatory verbal intimidation,
ridicule, and insults may be sufficiently severe or
pervasive" to support evidence of a Title VII violation,
" simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to
discriminatory charges" that can survive summary
judgment. See id. at 347-48 (citations omitted); see also
Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106
S.Ct. 2399, 91 L.Ed.2d 49 (1986)(" mere utterance of an
ethnic or racial epithet which engenders offensive feelings
in an employee" is insufficient to affect the conditions
of employment to a sufficiently significant degree to violate
and PMG challenge Olmeda's ability to establish the
fourth element of the prima facie harassment claim. To
satisfy the fourth element -- whether the harassment affected
a term or condition of employment -- racial or national
origin harassment " must be sufficiently severe
or pervasive 'to alter the conditions of [the
victim's] employment and create an abusive working
environment.'" Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. at 67 (emphasis added). Courts
take into account the totality of the circumstances, and the
challenged conduct must be both objectively and subjectively
offensive. Shepherd v. Comptroller of Pub. Accounts,
168 F.3d 871, 874 (5th Cir. 1999) (citing Harris v.
Forklift, 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d
relies on a few incidents of harassing conduct. He submits
that in the days leading up to the shooting, Carrington for
the first time called Olmeda " f--king dumba-- mother
f--ker" or he may have " told me to get the fuck
out of the way, fucking Mexican or something like that."
Olmeda submits that Carrington also called him "
Beaner." Placing these comments in context, before these
comments were made, Olmeda was singled out for being a "
snorkel", or suck-up. But Olmeda does not contend that
the snorkel incident or other profanity exchanges he had with
Carrington occurred because of his Hispanic descent. Indeed,
the record is clear that Olmeda did not report to Cameron or
PMG (or even the police investigator) that he was being
targeted and harassed due to his race or national origin,
although he did report that Carrington had threatened
survive summary judgment, the harassment must be " so
severe [or] pervasive that it destroys a protected
classmember's opportunity to succeed in the
workplace." Shepherd, 168 F.3d at 874. " The
alleged conduct must be more than rude or offensive comments,
teasing, or isolated incidents." Hockman v. Westward
Communications, LLC, 407 F.3d 317, 122 Fed.Appx. 734
(5th Cir. 2004) (citing Shepherd, 168 F.3d at 874);
Lauderdale v. Tex. Dep't of Criminal Justice,
512 F.3d 157, 163 (5th Cir. 2007)(quoting Faragher v.
City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275,
141 L.Ed.2d 662 (1998)(" Title VII ... is not a
'general civility code,' and 'simple
teasing,' off-hand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory
changes in the 'terms and conditions of
the few incidents in a week-long period at the end of his
four-month long temporary placement (while rude,
unprofessional, and in poor taste) were hardly frequent,
flagrant, physically threatening, or humiliating and,
therefore, do not rationally rise to the level or degree of
severity or pervasiveness necessary to maintain a hostile
work environment claim under the law. See Turner, 476 F.3d at
348 (plaintiff introduced insufficient evidence that hostile
work environment existed based on supervisor's "
ghetto children" comments, university night school
comment, and comments related to plaintiff's shopping
habits, car, and son's hobby because such comments were
isolated and ceased upon plaintiff's request). Further,
these infrequent comments pale in comparison to far more
severe race-based comments that have been found to support
hostile work environment claims. See, e.g., Walker v.
Thompson, 214 F.3d 615, 625 (5th Cir. 2000)(holding that
plaintiff survives summary judgment where evidence
demonstrated years of inflammatory racial epithets, including
" nigger" and " little black monkey" );
Daniels v. Essex Group, Inc., 937 F.2d 1264, 1266
(7th Cir. 1991)(finding summary judgment for defendant
inappropriate where plaintiff was subjected to " nigger
jokes" for a ten-year period and whose workstation was
adorned with " a human-sized dummy with a black
head" ); Spriggs v. Diamond Auto Glass, 242
F.3d 179, 182 (4th Cir. 2001)(reversing summary judgment
where plaintiff suffered " incessant racial slurs"
including " nigger" and " dumb monkey" );
cf. Pickens v. Shell Tech. Ventures, Inc., 118
Fed.Appx. 842, 850 (5th Cir. 2004)(unpublished)(holding that
a company Christmas party where a skit with characters in
blackface was performed and racially insensitive comments
were made did not create a hostile work environment);
Mosley v. Marion County, Miss., 111 Fed.Appx. 726,
728 (5th Cir. 2004)(unpublished)(three incidents involving
the use of racial slurs were insufficient to establish a
hostile work environment claim). And, importantly, Olmeda
himself has submitted no evidence to suggest that the
infrequent off-hand remarks, one of which was made while
waiting in line to buy boots at a truck outside of the shop,
affected his work performance. Although the record supports a
finding that perhaps the Berwick facility is permeated by
profanity, Title VII is not a civility code. No genuine issue
of material fact exists as to whether Carrington's "
Mexican" and " Beaner" comments affected a
term or condition of the plaintiff's
Court finds summary judgment dismissing the plaintiff's
Title VII hostile work environment claim is appropriate on
this basis alone. Nevertheless, even if the Court
determined that a genuine dispute concerning a material fact
precluded summary judgment on the fourth element (that is, if
the Court considered the shooting to be a race-based
workplace incident, which is belied by the record), PMG and
Cameron remain entitled to summary judgment. Olmeda cannot
demonstrate how either Cameron or PMG knew or should have
known of the harassing conduct and failed to take prompt
remedial action. Carrington and Perez were fired within days
of the shooting and within a week of any derogatory comment
made by Carrington, as they should have been.
Supreme Court has distinguished between cases in which a
hostile work environment is created by the plaintiff's
co-workers and cases in which it is created by the
plaintiff's supervisor. Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633
(1998); Aryain v. Wal-Mart Stores Texas LP, 534 F.3d
473, 479 n.4 (5th Cir. 2008). PMG submits that neither Perez
nor Carrington were supervisors within the meaning of Title
VII. The Court agrees. See Vance v.
Ball State Univ., 133 S.Ct. 2434, 2443, 186 L.Ed.2d 565
(2013); see also Cheshewalla v. Rand & Son Constr.
Co., 415 F.3d 847 (8th Cir. 2005)(finding that foreman
over construction laborers was " co-worker," not
" supervisor" ); Ochoa v. Texas Metal Trades
Council, 989 F.Supp. 828, 829 (S.D. Tex. 1997)("
The function of the Leadman is primarily to distribute work
to fellow employees. The Leadman is not a member of
management." ). Accordingly, the employer may be liable
for harassment by co-workers only if it " knew or should
have known of the harassment in question and failed to take
prompt remedial action." Stewart v. Mississippi
Transp. Comm'n, 586 F.3d 321, 330 (5th Cir. 2009).
Cameron took prompt remedial action by immediately
terminating Carrington and Perez following the shooting
incident and, relative to any uncivil exchanges in the
workplace, less than a week after Carrington made any "
racial" comments to Olmeda.
the plaintiff's race or national origin-based hostile
work environment claims are hereby dismissed.
charges that PMG and Cameron unlawfully retaliated against
him based upon his complaints regarding a racially hostile
work environment. PMG and Cameron, separately, move for
summary judgment dismissing Olmeda's retaliation claim
because he cannot prove his prima facie case. The Court
Title VII, " an employer may not discriminate against an
employee because the employee has 'opposed any practice
made an unlawful employment practice ... or because he has
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing' under
Title VII." See LeMaire v. La. Dep't of Transp.
& Dev., 480 F.3d 383, 388 (5th Cir. 2007)(omission in
original)(quoting 42 U.S.C. § 2000e-3).
employment discrimination claims, retaliation claims are
governed by the McDonnell Douglas burden-shifting framework.
Id. (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973)). Under that framework, an employee must first
establish a prima facie case of retaliation by showing that:
(1) he engaged in a protected activity; (2) that his employer
took an adverse employment action; and (3) that a causal link
exists between the protected activity and the adverse
employment action. McCoy v. City of Shreveport, 492
F.3d 551, 556-57 (5th Cir. 2007). If the employee makes such
a showing, the familiar burden-shifting framework identified
above applies: the employer must articulate legitimate,
non-discriminatory reasons for its employment action and
then, if articulated, the burden shifts back to the employee
to show that the employer's proffered reasons are a
pretext for its actual retaliatory purpose. See id.
and PMG submit that Olmeda cannot demonstrate that he engaged
in protected activity. The Court agrees. There is no
evidence in the record that Olmeda complained to anyone at
Cameron that he had been the target of race or national
origin discrimination or harassment. The only evidence
that PMG was on notice that Olmeda was being harassed due to
his race or national origin is submitted in the Hawkins
affidavit. Ms. Hawkins swears that she left
messages for PMG's Joe Coombs in the days leading up to
the shooting. Even assuming that a fact issue is raised as to
whether Hawkins' complaints on behalf of her boyfriend
constitute Olmeda engaging in protected activity, his
retaliation claim against PMG nevertheless fails.
is no evidence in the record supporting the third element of
Olmeda's prima facie retaliation element. Olmeda wholly
fails to demonstrate a causal link between any protected
activity and the adverse employment action. As for Cameron,
there is no dispute that Cameron did not " fire"
Olmeda; PMG pulled his temporary placement. And assuming that
pulling a temporary lended employee's placement
constitutes adverse employment action, there is no evidence
in the record linking this action to Olmeda's voicemail
complaints through his girlfriend to his PMG recruiter (that
he was being called racist names). Rather, there is no
dispute that PMG pulled Olmeda's placement because it
could not assure his safety and due to character issues that
had manifested themselves at a prior job and at
Cameron and PMG seek summary judgment dismissing the
plaintiff's state law claims.
seeks summary judgment dismissing the plaintiff's
vicarious liability for assault and battery claim; negligent
screening, hiring, and supervision claim; and intentional and
negligent infliction of emotional distress claim.
alleges that Cameron is vicariously liable for the actions of
its supervisory employees in the workplace. Insofar as Olmeda
asserts that Cameron is liable for the assault and battery
committed by Carrington and Perez, Cameron submits that
Louisiana law is clear that such intentional acts are not
within the course and scope of employment and, therefore, it
is not vicariously liable under La. Civ. Code articles 2315
and 2320. The Court agrees.
employer is liable for the torts of an employee committed
while the employee is acting within the course and scope of
his employment. La. Civ. Code art. 2320. " Vicarious
liability rests in a deeply rooted sentiment that a business
enterprise cannot justly disclaim responsibility for
accidents which may fairly be said to be characteristic of
its activities." Richard v. Hall, 874 So.2d
131, 138 (La. 2004). An employer's vicarious liability
for conduct which is not its own extends only to the
employee's tortious conduct that is within the course and
scope of employment. Kelley v. Dyson, 40 So.3d 1100,
1105 (La.App. 5 Cir. 5/25/10). " Course" refers to
the time and place that the conduct occurred, while "
scope" examines the employment-related risk of injury.
Baumeister v. Plunkett, 673 So.2d 994, 996 (La.
Baumeister, the Louisiana Supreme Court held that the court
of appeals erred in holding a hospital liable for the sexual
battery committed by one of its nursing supervisors on a
co-employee during working hours on the hospital's
premises. Id. at 999. In so holding, the state
supreme court embraced a four-part test for vicarious
liability: (1) whether the tortious act was primarily
employment rooted; (2) whether the act was reasonably
incidental to the performance of the employee's duties;
(3) whether the act occurred on the employer's premises;
and (4) whether the act occurred during the hours of
employment. Id. at 996-97 (citation omitted).
Finding that (3) and (4) were met, but not (1) and (2), the
state supreme court concluded that the " sexual assault
was entirely extraneous to [the] employer's
interests." Id. at 1000.
these principles to the facts here compels the same result.
The Court finds that Cameron had no duty to protect Olmeda
from intentional acts committed by co-employees after hours
and off premises; a drive-by highway shooting after hours of
drinking at private establishments was not reasonably
incidental to Carrington's and Perez's official
work-related duties as machinists. Olmeda's vicarious
liability claim borders on frivolous; summary judgment is
Negligent screening, hiring, and supervision
submits that it is entitled to summary judgment dismissing
the plaintiff's negligence claims because (a) negligence
claims are precluded by Louisiana's worker's
compensation regime; (b) Cameron owed no duty to Olmeda; or
(c) the individual defendants' intoxicated condition was
the cause in fact of the plaintiff's harm. Olmeda
counters that the workers compensation bar does not apply
when supervisory employees engage in intentional conduct;
that Cameron owed Olmeda a duty to protect him; that
intoxication does not preclude liability; and that Cameron,
through Cardinale, was negligent in failing to ensure
Olmeda's safety and the breach of that duty "
resulted in Olmeda's attack and nearly resulted in his
the Louisiana Worker's Compensation Act, La.R.S. 23:1032,
an injured employee is limited to the remedies available
under the Act. La.R.S. 23:1032(A)(1)(a). A borrowed employee
is barred from bringing a negligence action against either
his general or borrowing employer. Sanchez v. Harbor
Constr. Co., Inc., 968 So.2d 783, 787 (La.App. 4 Cir.
does not dispute that he was Cameron's borrowed employee.
Rather, he argues that intentional tortious acts of
supervisors are excepted from the Act's exclusivity
provisions; he invokes La.R.S. 23:1032(B), which provides:
" Nothing in this Chapter shall affect the liability of
the employer . . . resulting from an intentional act."
 He provides no support for his
argument; he fails to suggest how his negligence
claims against Cameron survive the exclusivity provisions of
the Act. La.R.S. 23:1032(A).
his negligence claims against Cameron survived the
exclusivity bar, Olmeda's negligence claims would
nevertheless fail for two separate reasons. First, the Court
finds as a matter of law that Cameron had no duty under the
circumstances. Second, Carrington's and Perez's own
intentional conduct getting drunk, retrieving a shotgun, and
shooting at Olmeda while driving, was the cause-in-fact of
C.C. art. 2315 provides: " Every act whatever of man
that causes damage to another obliges him by whose fault it
happened to repair it." In other words, in negligence
cases, where circumstances create a duty to do so, the
defendant must use reasonable care so as to avoid injuring
another person. Louisiana courts have adopted a duty-risk
analysis in determining whether to impose liability under the
general negligence principles of La. C.C. art. 2315. To
recover, the plaintiff must prove that (1) Cameron had a duty
to conform its conduct to a specific standard (the duty
element); (2) Cameron's conduct failed to conform to the
appropriate standard (the breach element); (3) Cameron's
substandard conduct was a cause-in-fact of his injuries (the
cause-in-fact element); (4) Cameron's substandard conduct
was a legal cause of the injuries (the scope of protection
element); and (5) he suffered damages (the damages element).
See Bridgefield Cas. Ins. Co. v. J.E.S., Inc., 29
So.3d 570, 573 (La.App. 1 Cir. 10/23/09)(citations omitted).
" [A]ll four inquiries must be affirmatively answered
for plaintiff to recover." Jimenez v. Omni Royal
Orleans Hotel, 66 So.3d 528, 532 (La.App. 4 Cir.
5/18/11)(citation omitted). " Whether a duty is owed is
a question of law; whether defendant has breached a duty is a
question of fact." Brewer v. J.B. Hunt Transport,
Inc., 35 So.3d 230, 240 (La. 2010). A claim against an
employer for the torts of an employee based on the
employer's alleged direct negligence in hiring,
retaining, or supervising the employee is governed by the
same duty-risk analysis. Griffin v. Kmart Corp., 776
So.2d 1226, 1231 (La.App. 5 Cir. 11/28/00). When an employer
hires an employee who in the performance of his duties will
have a " unique opportunity" to commit a tort
against a third party, he has a duty to exercise reasonable
care in the selection of that employee. Id.
Olmeda has not alleged, let alone submitted evidence
indicating, that employment by Cameron gave Carrington or
Perez a unique opportunity to inflict harm on Olmeda. There
is nothing in the record to support imposing a duty on
Cameron to protect Olmeda on the weekend and away from the
facility and certainly not from a highway drive-by shooting.
See Kelley v. Dyson, 40 So.3d 1100 (La.App. 5 Cir.
the record supports a finding that no conduct on the part of
Cameron could credibly be considered a substantial factor in
bringing about the harm to Olmeda; rather, the drunken
shooting perpetrated by Carrington and Perez is certainly an
independent, intervening act. See, e.g., Perkins v.
Entergy Corp., 782 So.2d 606, 611 (La. 2001); Fabre
v. B.F. Goodrich Co., 218 So.2d 617, 620 (La.App. 4 Cir.
Intentional Infliction of Emotional Distress
recover on an intentional infliction of emotional distress
claim in Louisiana, a plaintiff is required to show that (1)
the defendant's conduct was extreme and outrageous; (2)
the plaintiff suffered severe emotional distress; and (3)
" the defendant desired to inflict severe emotional
distress or knew that severe emotional distress would be
certain or substantially certain to result from his
conduct." White v. Monsanto Co., 585 So.2d
1205, 1209 (La. 1991). The conduct requirement in an IIED
claim is difficult for a plaintiff to meet; the standard does
not reach " mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities,"
but, rather, the behavior must " go beyond all possible
bounds of decency, [and must] be regarded as atrocious and
utterly intolerable in a civilized community."
Id.; see also Iturralde v. Shaw Grp., Inc.,
512 Fed.Appx. 430, 435 (5th Cir. 2013) (" Under
Louisiana Civil Code Article 2315, plaintiffs must meet a
high burden of proof to prevail on an IIED claim." ).
" Unlike an action grounded in negligence, an action
sounding in intentional tort causes us to focus on whether
the employer desired or knew that the harm facing the
plaintiff as a result of the complained-of conduct was
substantially certain to result from the conduct."
Bourgeois v. Curry, 921 So.2d 1001, 1010 (La.App. 4
submits that there is no evidence as to the third element.
The Court agrees. There is no evidence in the record
supporting an IIED claim against Cameron and certainly none
demonstrating that Cameron knew or desired that the harm
facing Olmeda would be substantially certain to result from
Cameron is entitled to summary relief on the plaintiff's
state law claims.
Court previously dismissed Olmeda's claims against PMG
for assault, battery, intentional infliction of emotional
distress, and vicarious strict liability. PMG now seeks
summary judgment dismissing the plaintiff's claim for
negligent screening, hiring, and supervising and his state
discrimination claim under La.R.S. 23:301. The plaintiff has
failed to submit any argument in opposition, apparently
abandoning any remaining state law claims against PMG. Even
so, the Court finds that PMG is entitled to judgment as a
matter of law dismissing these claims. Without the benefit of
briefing by the plaintiff, his negligent hiring claim against
PMG is barred by the Louisiana Worker's Compensation
Act. Benoit v. Turner Industries Group, L.L.C., 85 So.3d
629, 634 (La. 2012) (" the workers compensation regime
represents a quid pro quo compromise of interests, whereby
'the employee receive[s] an absolute right to recover
limited benefits in exchange for the employer's tort
immunity.'" ). Even if not, the record is clear that
PMG did not hire, supervise, or train either Carrington or
Perez (or otherwise have any presence on site at the Berwick
facility) such that the grounds for a negligence claim
against PMG is completely lacking. As to any claim the
plaintiff might have been pursuing under Louisiana's
employment discrimination law, La.R.S. 23:301, it fails as a
matter of law because the record confirms that PMG did not
employee 20 or more employees within the state of Louisiana
for each working day in each of 20 or more calendar weeks in
IT IS ORDERED: that Cameron's motion to strike is hereby
GRANTED in part and DENIED in part, and its motion for
summary judgment is hereby GRANTED. IT IS FURTHER ORDERED:
that PMG's motion to strike is hereby GRANTED in part and
DENIED in part, and its motion for summary judgment is hereby
GRANTED. The plaintiff's claims against Cameron and PMG
are dismissed. Finally, IT IS ORDERED: that the Court
declines to exercise supplemental jurisdiction over the
plaintiff's remaining, ostensibly state law causes of
action against the individual defendants. See 28
U.S.C. § 1367; the plaintiff's claims against Perez
and Carrington are dismissed without prejudice.
At no time did PMG employ 20 people in the
state of Louisiana for 20 or more weeks.
PMG and Cameron are separate companies that
do not share any management, ownership, or financial control.
Cameron maintains its own operations, controls the
employee's conduct, has the right to hire and fire the
contract employee, supervise the employee, and set the
employee's work schedule. PMG did not maintain an office
at Cameron's facility, did not supply Cameron with the
majority of its workforce and did not engage in any business
Olmeda signed a temporary employment
agreement with PMG on March 12, 2013, in which Olmeda
acknowledged that assignments are temporary, there is no
promise of employment, he is employed at will, and he can be
terminated without cause or notice. The PMG-Olmeda temporary
employment agreement requires Olmeda to represent PMG and
himself in a professional and respectful manner and abide by
all policies, terms, and conditions. Olmeda agreed to follow
PMG's " gold standard" and represent PMG,
himself, and PMG's client in a positive and productive
manner, or he would be subject to immediate
Before working at the Cameron facility, PMG
placed Olmeda at Tolomatic, a company that did not want
Olmeda to return to due inappropriate comments Olmeda had
made at the job site.
That neither Cameron nor PMG perceived
Olmeda as non-white or Hispanic appears to be without dispute
in the record. It is also notable that the investigation
report regarding the shooting incident lists Olmeda's
race as " white" and his ethnicity as "
Cameron's human resources department
handled hiring and firing, not Burger.
During the first few months of working at
Cameron, Olmeda spoke to his PMG recruiter, Joe Coombs.
" I don't think I actually mentioned anything about
racial slurs about anything, but he did ask me how it was
going and I told him well we will see what happens in the
next couple months," Olmeda testified.
The " snorkel" incident was never
reported to PMG.
Carrington says that, later, he walked past
Olmeda's work station and Olmeda told him " I hope
you value your life [because] it's all going to be gone
soon." Carrington, a war veteran was particularly upset
by the " value your life" comment.
Perez's title was " lead
man," which meant that he was charged with relaying
instructions from Cardinale to the crew; Perez did not have
the power to hire, fire, discipline, approve raises or
promotions, or do evaluations.
Olmeda says that Carrington told him
" You don't know who you're fucking with . . .
you keep going on with what you're doing and you're
going to be a dead guy mother f--ker." Olmeda says that
Carrington also said " watch your back . . . you're
going to end up a dead man."
Olmeda's girlfriend typed up his
Detective Tabor stated under
Had Mr. Olmeda made any reference or indication
whatsoever that race or ethnicity was involved or may have
played a role, I would have noted that and reported it
because we are required by the Federal Bureau of
Investigation to track any racial bias or ethnic bias
incidents. Additionally there is an enhancement for crimes
that involve race or bias. . . . Had I had any indication
that race or ethnic bias was involved, I would have charged
Mr. Carrington and Perez with a more serious crime.
Eventually, Carrington pleaded guilty to
aggravated criminal damage to property and illegal discharge
of a firearm. Perez pleaded guilty to aggravated criminal
damage to property.
PMG submits that Olmeda's
non-deployment was grounded in the following: that he was a
temporary worker with no guaranty of work, a concern for his
safety at Cameron, Cameron never requested that he be sent
back, Olmeda never requested that he be sent back, and Olmeda
did not dispute that the had participated in verbal
altercations at the Cameron site while he was at work (the
second such report to PMG by an employer of Olmeda).
On February 27, 2014 Mr. Olmeda alleges
that he filed another charge with the EEOC (as well as with
the Human Rights Commission), this time charging that he was
fired in retaliation for complaining about employment
Presumably, the reference to "
sexual" harassment is a typographical error in the
Cameron and Olmeda do not dispute that
the claims Olmeda is pursuing against it include: (1)
vicarious liability for assault and battery under La. Civ.
Code art. 2315 and 2320; (2) negligent screening, hiring, and
supervision under La. Civ. Code art. 2315 and 2320; (3)
intentional and negligent infliction of emotional distress;
and (4) ethnic discrimination/harassment and retaliation
under Title VII.
As to PMG, the Court dismissed
Olmeda's state law claims for assault, battery, and
intentional infliction of emotional distress, and any other
cause of action that is not a substantive cause of
Notably, notwithstanding plaintiff's
failure to comply with Rule 56(d), the Court continued the
submission date on both motions for summary judgment until
one week after the scheduled deposition, but counsel for
plaintiff has failed to file any additional papers suggesting
that this deposition proceeded as scheduled. The Court
declines the plaintiff's invitation to delay ruling on
the pending motions.
The Bragg transcript also contains double
hearsay, which is inadmissible under Rule 805. Olmeda is
required to show how each statement is not hearsay (or double
hearsay) or how the statements are subject to a hearsay
exception. He fails to do so.
Contrast this four times to Olmeda's
statement in his affidavit that he called Coombs at least 25
times and never got an answer. PMG notes that Olmeda has
failed to produce copies of his telephone records,
disregarding PMG's request.
This statement in his affidavit is also
contradictory to another portion of his deposition testimony,
wherein Olmeda testified that the first time Carrington made
a racial comment to him was on September 11, after the "
Cameron also submits that Olmeda's
affidavit contains hearsay. Olmeda offers no argument in
opposition to this specific challenge. Insofar as Olmeda
recounts in his affidavit conversations he had with an
unidentified supervisor and state criminal court judge, any
such statements are inadmissible hearsay.
Obviously, the Court does not take as
fact Ms. Hawkins' description of Carrington and Perez as
supervisors; she has not demonstrated any foundation for
knowledge as to supervisory positions at her boyfriend's
If Olmeda seeks to offer Hawkins'
statements to establish that, in truth and in fact, Olmeda
was called derogatory names, Olmeda may not do so on hearsay
It seems that the defendants are entitled
to the plaintiff's and Hawkins' telephone records.
The Court sees no reason why the defendants have not filed a
motion to compel these records.
Initially, Cameron also moved for summary
judgment dismissing Olmeda's Title VII race/ethnic
discrimination claim. Olmeda does not oppose, presumably
because he seeks to recover only under hostile work
environment and retaliation theories. Even assuming Olmeda
was pursuing a Title VII discrimination claim against
Cameron, the Court finds that Cameron is entitled to judgment
as a matter of law because Olmeda cannot prove the fourth
element of his prima facie case. There is no evidence in the
record establishing that Olmeda was replaced by a person
outside of the protected class, or that he was treated less
favorably than similarly situated employees of a different
ethnicity. Merritt v. United Parcel Service, 321
Fed.Appx. 410, 413-14 (5th Cir. 2009).
The Fifth Circuit has recognized
[a]n egregious, yet isolated, incident can alter the
terms, conditions, or privileges of employment and satisfy
the fourth element necessary to constitute a hostile work
environment. The inverse is also true: Frequent incidents
of harassment, though not severe, can reach the level of
pervasive, thereby altering the terms, conditions, or
privileges of employment such that a hostile work
environment exists. Thus, the required showing of severity
or seriousness of the harassing conduct varies inversely
with the pervasiveness or frequency of the conduct.
Lauderdale v. Tex. Dep't of Crim. Justice, 512
F.3d 157, 163 (5th Cir. 2007).
Olmeda fails to direct the Court to any
evidence that would, or in which he had, linked any
threatening comment by Carrington to his protected
As to PMG, it is undisputed that no PMG
employees harassed Olmeda. Nor did PMG control Cameron's
work site. Any harassment claim against PMG fails as a matter
of law for this additional reason.
Olmeda understandably focuses on the
outrageous and severe conduct of Carrington and Perez in
carrying out their drunken highway shooting. The Court does
not minimize the severity of this incident. However, Olmeda
fails to demonstrate how this episode could be considered as
part of the workplace that Title VII seeks to regulate.
Olmeda cites no case literature in support of his theory that
this intentional criminal conduct perpetuated by co-workers
after hours and off premises triggers Title VII.
Although Olmeda disputes this fact, the
dispute is not genuine. The only evidence in the record on
this issue supports a finding that neither Perez nor
Carrington were supervisors. Although Perez was nominally
" lead man," he was no manager. There is no
evidence in the record that would support a finding that
either individual defendant was empowered to take tangible
employment action against Olmeda.
That PMG could not fire the perpetrators
(given that Carrington and Perez were Cameron employees) does
not support a finding that PMG did not take prompt, remedial
action. The plaintiff fails to provide any case law to
support any theory that PMG failed to take prompt remedial
action. (Cameron did it for both employers). In any event, it
is noteworthy that PMG pulled Olmeda's placement
immediately, at least in part due to safety concerns for its
temporary employee. Although this is the source of
Olmeda's retaliation claim, Olmeda cannot prove his prima
facie case of hostile work environment against either PMG or
It is also noteworthy that there is no
link to the EEOC complaint, which was not lodged until months
after the shooting.
The record demonstrates that Olmeda
complained about the snorkel incident, which he concedes has
nothing to do with race or national origin. Olmeda also
notified Cameron that Carrington had threatened him; again,
however, there is no evidence in the record indicating that
Olmeda advised Cameron that there was any racial component to
his exchanges with Carrington.
The Court must view this in the light
most favorable to the plaintiff and, therefore, assumes for
the purposes of this motion that Hawkins left voicemails for
Coombs alerting him to her boyfriend's alleged harassment
in the days leading up to the shooting. Coombs of course
disputes this and there is other evidence in the record that
contradicts this submitted fact. The Court observes that the
defendant would be entitled to discover Ms. Hawkins'
phone records to assist a jury in resolving the fact
Notably, Olmeda initially told Coombs
that he did not want to return to the job site for fear of
Accord Kelley v. Dyson, 40 So.3d
1100 (La.App. 5 Cir. 5/25/10)(dismissing vicarious liability
and negligence claims brought by worker who, after several
fights at work, was assaulted by co-worker, who used a steel
toed boot to kick and break the plaintiff's
To satisfy the requirements of the
intentional act exception, by definition, the alleged conduct
must go beyond gross negligence or mere failure to maintain
safe conditions at work. Bazley v. Tortorich, 397
So.2d 475, 480 (La. 1981)(intentional in this context means
that " the defendant either desired to bring about the
physical results of his act or believed they were
substantially certain to follow from what he did." ).
All the plaintiff offers in support of
his IIED claim against Cameron is " [c]ertainly be shot
at with a shotgun with buckshot and deflating a tire as well
as causing loss of control of Olmeda's truck is a
traumatic event when you fear death." Olmeda fails to
link this episode to Cameron.
Moreover, the record evidence indicates
that PMG and Cameron were not related entities that shared
control of labor.
The Court has nothing before it
addressing which causes of action remain against the
individual defendants. It is difficult to glean from the
complaint which causes of action remain pending against the
individual defendants. There appear to be assault and battery
causes of action and perhaps a cause of action for
intentional infliction of emotional distress against Perez