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Johnson v. Laship, LLC

United States District Court, E.D. Louisiana

June 7, 2018

KIERA JOHNSON
v.
LASHIP, LLC, ET AL

         SECTION “H” (1)

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Motion for Summary Judgment (Doc. 53). For the following reasons, the Motion is GRANTED IN PART.

         BACKGROUND

         This employment discrimination case arises from Plaintiff Kiera Johnson's work for Defendant LaShip, LLC (“LaShip”). On September 3, 2014, Plaintiff first began working for LaShip as a roustabout, performing general labor related to shipyard operations. Plaintiff primarily cleaned around the shipyard and its offices. Plaintiff was terminated on November 3, 2014 by Defendant Greg Adams, the shipyard manager, following a verbal altercation with another employee. On November 24, 2014, Adams rehired Plaintiff.

         Plaintiff alleges that Adams began sexually harassing her on February 10, 2015, after assigning Plaintiff to clean his office. Plaintiff alleges that Adams told her that she was pretty, told her that he wanted to perform oral sex on her, and grabbed Plaintiff's buttocks and vagina. Plaintiff alleges that for several months Adams continued to make unwanted sexual advances, demand sex, offer preferential treatment in exchange for sex, expose his genitals to Plaintiff, touch Plaintiff sexually without consent, and force Plaintiff to touch his genitals. Plaintiff alleges that in February and March of 2015 she informed her immediate supervisor, Tylone Johnson, of the harassment.[1]

         In late March or Early April of 2015, Defendant Adams reassigned Plaintiff to work as the secretary for Andre Belanger and raised her pay from $10 to $11 per hour. Plaintiff alleges that Adams's harassment and touching continued while she worked as a secretary. Plaintiff also alleges that she informed Belanger of the harassment. In May of 2015, Adams reassigned Plaintiff to work as a roustabout again. Defendants maintain that they reassigned Plaintiff because she used Belanger's cell phone to take a picture of herself without permission. Plaintiff alleges that she was reassigned in retaliation for refusing Adams's harassment.

         Plaintiff states that Defendant Adams stopped sexually harassing and battering Plaintiff once she was transferred back to roustabout duties, but alleges that he then began to incessantly ask Plaintiff whether she had told anyone about his conduct. About two weeks after returning to roustabout duties, Plaintiff stopped coming to work, terminating her employment with LaShip.

         Plaintiff's Complaint asserts claims for 1) sexual harassment in violation of 42 U.S.C § 1981; 2) the maintenance of a hostile work environment and quid pro quo sexual harassment, constituting sex discrimination in violation of 42 U.S.C. § 2000e (“Title VII”); 3) retaliation for opposing or reporting sexual harassment, in violation of Title VII; 4) the maintenance of a hostile work environment and quid pro quo sexual harassment, constituting sex discrimination in violation of Louisiana Revised Statutes § 23:332(A)(1); 5) retaliation for opposing or reporting sexual harassment, in violation of Louisiana Revised Statutes § 23:332(A)(2); 6) the violation of Louisiana Revised Statutes § 14:43.1 and 14:43.1.1, criminal prohibitions against sexual battery; 7) intentional infliction of emotional distress by Defendant Adams; 8) the vicarious liability of Defendant LaShip for the intentional torts of Adams, and 9) Defendant LaShip's own negligence in its failure to train, supervise, and investigate.[2]

         Defendants now move for summary judgment A) that sexual harassment is not a cognizable claim under § 1981; B) that LaShip has no vicarious liability for Plaintiff's Title VII or state law harassment claims pursuant to the Ellerth/Faragher affirmative defense;[3] C) that Plaintiff's Title VII and state law retaliation claims are barred for her failure to exhaust administrative remedies; D) that Plaintiff fails to state a Title VII retaliation claim; E) that Plaintiff's claims for back or front pay under Title VII are tolled because LaShip offered to reinstate Plaintiff; F) dismissing Plaintiff's claims for sexual harassment and battery under state criminal statutes; G) that Plaintiff's sole remedy for the negligence of LaShip is the Louisiana Workers' Compensation Act; H) that LaShip is not vicariously liable for the intentional torts of Adams because he acted outside the scope of his employment; and I) that the facts as alleged by Plaintiff fail to meet the bar for intentional infliction of emotional distress. Plaintiff opposes most, but not all, of Defendants' motion. The Court will address each of the grounds for summary judgment in turn.

         LEGAL STANDARD

         Summary judgment is appropriate if “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations. . ., admissions, interrogatory answers, or other materials” “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[4] A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[5]

         In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.[6] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”[7] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”[8] “In response to a properly supported motion for summary judgment, the nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial.”[9] The Court does “not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”[10] Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”[11]

         When a motion for summary judgment is unopposed the court may not grant the motion by default, but is entitled to accept as undisputed the facts it presents.[12] “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.”[13] Instead, the proper inquiry to an unopposed motion for summary judgment is to determine whether the facts advanced in the motion and supported by appropriate evidence make out a prima facie case that the movant is entitled to judgment.[14]

         LAW AND ANALYSIS

         A. Sexual Harassment Claim Under § 1981

         Sexual harassment and discrimination are not cognizable under 42 U.S.C. § 1981, which prohibits only racial discrimination.[15] Plaintiff has not alleged that she was discriminated against because of her race, and conceded so at oral argument. Accordingly, Plaintiff's claims under § 1981 are dismissed with prejudice.

         B. Vicarious Liability Under Title VII and La. R.S. § 23:332(A)(1)

         Defendant LaShip moves for summary judgment that it has no vicarious liability under either Title VII or state law for Defendant Adams's sexual harassment pursuant to the Ellerth/Faragher affirmative defense because Plaintiff failed to take advantage of the opportunities that LaShip provided to prevent or correct the alleged harassment.[16] There are two types of sexual harassment claims, those for the creation of a hostile work environment and those for “quid pro quo” harassment.[17] The distinguishing factor between the two is whether the plaintiff suffered a tangible employment action.[18] If so, the suit is a quid pro quo case; if not, it is a hostile environment case.[19]

         In quid pro quo cases, the employer will be vicariously liable if the plaintiff can prove that “the tangible employment action suffered by the employee resulted from his acceptance or rejection of [her] supervisor's alleged sexual harassment.”[20] Once the plaintiff establishes such a nexus, “no affirmative defense will be heard.”[21]

         Plaintiff here contends that she suffered two tangible employment actions: a demotion from the position of secretary to roustabout and constructive discharge. A tangible employment action is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”[22] An employee has suffered constructive discharge when “a ‘reasonable employee would feel compelled to resign' under the circumstances.”[23] Constructive discharge requires a level of harassment greater than the minimum required to prove a hostile working environment.[24] Factors relevant to whether a reasonable employee would feel compelled to resign include:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (6) offers of early retirement that would make the employee worse off whether the offer were accepted or not.[25]

         The employer's response to reports of sexual harassment can also be relevant.[26]

         Questions of material fact exist as to whether Plaintiff's reassignment from working as a secretary to a roustabout constituted a significant change in employment status-including whether the jobs require significantly different responsibilities-and as to the reason for the reassignment. Therefore, questions of material fact exist as to whether Plaintiff suffered a tangible employment action. Defendant LaShip is not entitled to summary judgment on an affirmative defense when questions of fact exist as to whether it may assert the defense in the first place.

         Even if Plaintiff did not suffer a tangible employment action, therefore allowing LaShip to assert the Ellerth/Faragher defense, questions of material fact remain that preclude summary judgment. A claim for sexual harassment without a tangible employment action is a hostile environment case. To set forth a prima facie hostile environment case, a plaintiff must show, “(1) that the employee belongs to a protected class; (2) that the employee was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4) that the harassment affected a term, condition, or privilege of employment.”[27] “To affect a term, condition, or privilege of employment, the harassment ‘must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.'”[28]

         Against a hostile environment claim, an employer may use the Ellerth/Faragher affirmative defense to avoid vicarious liability for the conduct of its employees by showing that “(1) the employer exercised reasonable care to prevent and correct promptly any such sexual harassment, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”[29] As to the first prong, an employer generally exercises reasonable care when it “provide[s] a proven, effective mechanism for reporting and resolving complaints of sexual harassment, available to the employee without undue risk or expense.”[30] As to the second prong, an employee generally must take advantage of a reasonable reporting process before resigning and may be required to make multiple attempts to report sexual harassment.[31]

         Here, Defendant LaShip maintains a mechanism for collecting and addressing reports of sexual harassment that is detailed in a written policy.

         The policy states, in part,

All employees of Chouest Companies are responsible for helping to assure that we avoid discrimination, harassment and retaliation. If, as an employee of one of the Chouest Companies, you have been subjected to any type of discrimination, harassment, or retaliation, it is your responsibility to notify someone who can address this issue. All complaints regarding harassment, discrimination or retaliation by any supervisor, manager or fellow employee should be immediately reported to the Chouest Fraud and Abuse Hotline, via phone at (866) 925-5161 or online at chouest.ethicspoint.com.[32]

         Plaintiff signed employment forms explicitly acknowledging the policy multiple times.[33] Plaintiff argues that LaShip has not met its burden to show that it took reasonable care to prevent and correct harassment because Plaintiff says that she does not remember the policy and because Defendant introduced no evidence that it conducted specific anti-harassment training. However, Plaintiff does not dispute that she was shown the policy and acknowledged it in writing more than once. Nor does Plaintiff cite to any authority stating that reasonable care requires an employer to conduct anti-harassment trainings. Accordingly, this Court finds that on the undisputed facts, Defendant LaShip has satisfied the first prong of the Ellerth/Faragher defense.

         Questions of material fact, however, do exist as to the second prong of the defense: whether Plaintiff unreasonably failed to take advantage of Defendant's corrective policies. The policy states that it was Plaintiff's responsibility to “notify someone who can address this issue.” Plaintiff testifies in her deposition that she first brought the harassment to the attention of her direct supervisor, then brought it to his attention again when nothing happened, and finally reported the harassment to the superior employee for whom she worked as a secretary. Plaintiff's failure to also report the harassment to Defendant's fraud and abuse hotline is not unreasonable as a matter of law.[34]

         Accordingly, Defendant LaShip's motion for summary judgment that it is not vicariously liable for Adams's conduct under Title VII or state antidiscrimination law is denied.

         C. Whether Plaintiff's Retaliation Claims Are Procedurally Barred

         Defendants move for summary judgment dismissing Plaintiff's claims for retaliation in violation of Title VII and Louisiana Revised Statutes § 23:332(A)(2) because Plaintiff failed to exhaust her administrative remedies with respect to those claims. Title VII requires private sector employees to file an administrative charge with the Equal Employment Opportunity Commission (“EEOC”) before seeking judicial relief.[35] “[T]he scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.”[36]“[D]iscrimination and retaliation claims are distinct, and the allegation of one in an EEO charge does not exhaust a plaintiff's remedies as to the other.”[37]Similarly, Louisiana Revised Statutes § 23:303(C) requires a plaintiff to give written notice to an employer of plaintiff's intent to sue for discrimination at least thirty days before filing suit.[38] An EEOC charge may satisfy this requirement, but only as to the claims detailed in the charge.[39]

         Defendant submits evidence that in Plaintiff's EEOC charge, Plaintiff only checked the box for sex discrimination and did not check the box for retaliation.[40] Plaintiff offers no response. Furthermore, more than 300 days have passed since any potential act of retaliation and therefore Plaintiff can no longer file a timely EEOC charge.[41] Accordingly, Defendants' motion for summary judgment dismissing Plaintiff's retaliation claims is granted. Plaintiff's claim for retaliation under Title VII is dismissed with prejudice for the failure to exhaust administrative remedies. Defendants have not argued that Plaintiff is barred from providing notice and refiling her state retaliation claim. Accordingly, Plaintiff's claim for retaliation under Louisiana Revised Statutes § 23:332(A)(2) is dismissed without prejudice as premature.

         D. Whether Plaintiff States a Title VII Retaliation Claim

         The Court dismissed Plaintiff's retaliation claims above for the failure to exhaust administrative remedies and therefore does not reach the issue of whether Plaintiff stated a claim for retaliation.

         E. Plaintiff's Back Pay After Reinstatement Offer

         Defendants move for summary judgment that, in the event Defendants are liable, Plaintiff is not entitled to back pay or “front pay” because Plaintiff refused an unconditional offer of employment from Defendant LaShip's parent corporation. “[A] claimant ‘forfeits his right to back pay if he refuses a job substantially equivalent to the one he was denied.'”[42] Grounded in a plaintiff's duty to mitigate his damages, the forfeiture applies from the time that the offer of reinstatement is extended.[43] Defendants submit evidence that LaShip's parent company offered to reinstate Plaintiff to an equivalent position at an affiliated company closer to her home with the same pay as when she departed LaShip.[44] Plaintiff does not respond to this particular ground for summary judgment. Accordingly, Defendants' motion for summary judgment as to back pay is granted. Plaintiff is ineligible for damages in the form of lost wages for any period after July 27, 2015.

         F. Claims for Sexual Harassment and Battery Under ...


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