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Riggs v. DXP Enterprises, Inc.

United States District Court, W.D. Louisiana, Lafayette Division

January 8, 2019

NICOLE RIGGS
v.
DXP ENTERPRISES, INC., ET AL.

          DOUGHTY MAGISTRATE JUDGE

          REPORT AND RECOMMENDATION

          PATRICK J. HASINA UNITED STATES MAGISTRATE JUDGE

         Two motions are currently pending before the court. The first pending motion is defendant DXP Enterprises, Inc. d/b/a C.W. Rod Tool Co.'s motion (Rec. Doc. 35), which seeks to have certain portions of the plaintiff's first amended complaint stricken under Fed.R.Civ.P. 12(f) and also seeks the dismissal of certain of the plaintiff's claims under Fed.R.Civ.P. 12(b)(6). The second pending motion is defendant Tranae Marks's motion (Rec. Doc. 36), which adopts and reiterates the arguments set forth in support of DXP's motion. The motions were referred to the undersigned Magistrate Judge for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. For the reasons explained in a prior order (Rec. Doc. 45), the motions to dismiss were converted to motions for summary judgment, notice was provided to the litigants, additional briefing was permitted, and ruling on the motions to strike was deferred so that all aspects of the two pending motions could be resolved simultaneously.

         The motions are opposed. (Rec. Doc. 41).[1] Now, for the following reasons, it is recommended that the motions be GRANTED IN PART and DENIED IN PART.

         Background

          This is an employment discrimination lawsuit brought by the plaintiff, Nicole Riggs, against her former employer, DXP, and her former coworkers, Brian Ross[2]and Tranae Marks. It is undisputed that Ms. Riggs was formerly employed by DXP and that her employment with that company was involuntarily terminated on February 22, 2016. In her original complaint, the plaintiff asserted several claims against the three original defendants, including sexual harassment and hostile work environment claims under Title VII of the Civil Rights Act of 1964 and the Louisiana Employment Discrimination Law (“LEDL”); retaliation claims under federal and state law; civil rights claims under 42 U.S.C. § 1983; a claim that she was denied leave under the Family and Medical Leave Act of 1993 (“FMLA”); and a claim based on her having filed a complaint with the Occupational Safety and Health Administration (“OSHA”). The plaintiff also asserted Louisiana state-law claims for tortious interference with contract, tortious interference with business relationships, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent hiring, negligent training, negligent supervision, negligent retention of employees, defamation per se, conspiracy to defame, and invasion of privacy.

         In response to the plaintiff's complaint, DXP and Ms. Marks filed a motion (Rec. Doc. 7), seeking dismissal of some but not all of the plaintiff's claims. They did not seek dismissal of the plaintiff's Title VII retaliation claim against DXP based on the termination of her employment or her state-law claims for defamation per se and intentional infliction of emotional distress against DXP and Ms. Marks. The court granted the motion in part and dismissed with prejudice eleven of the claims that were asserted against the defendants: the Section 1983 claim, the FMLA claim, the OSHA claim, the tortious interference with contract claim, the tortious interference with business relations claim, the five negligence claims, and the conspiracy-to-defame claim. (Rec. Doc. 27 at 1). The court also dismissed with prejudice any sexual harassment, hostile work environment, and retaliation claims asserted against Ms. Marks. (Rec. Doc. 27 at 1). The court ordered the plaintiff to file an amended complaint “in order to omit any and all prescribed claims and to clarify her invasion of privacy claim” (Rec. Doc. 27 at 1) and expressly reserved the defendants' right to file another motion to dismiss after the amended complaint was filed. At that point, the only claims remaining were: the sexual harassment and hostile work environment claims under Title VII and LEDL that were asserted against DXP, the federal and state-law retaliation claims that were asserted against DXP, and the claims for intentional infliction of emotional distress, defamation per se, and invasion of privacy that were asserted against all three original defendants.

         The plaintiff filed her amended complaint (Rec. Doc. 30), and DXP and Ms. Marks responded by filing the instant motions (Rec. Docs. 35 and 36).

         Law and Analysis

         I. The Motion to Strike

         Motions to strike are governed by Rule 12(f) of the Federal Rules of Civil Procedure, which states that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Deciding whether to strike all or a portion of a pleading lies within the court's discretion.[3] A motion to strike under Rule 12(f) “is a drastic remedy to be resorted to only when required for the purposes of justice.”[4] Accordingly, Rule 12(f) motions to strike are viewed with disfavor, and are infrequently granted.[5]

         In this case, the defendants seek to strike Paragraphs 17, 18, 32(C), and 32(G) through (J) of the amended complaint and any references in the amended complaint to a conspiracy-to-defame claim, arguing that those portions of the amended complaint refer solely to claims that were already dismissed by the court. This Court interprets the defendants' argument to be that the cited portions of the amended complaint are immaterial. The plaintiff did not expressly address the motion to strike in her opposition brief but obliquely argued that “allegations of sexual harassment, reporting, and other facts during Plaintiff's employment would make the complaint vague as to why she was retaliated against.” (Rec. Doc. 41 at 2-3). This Court interprets that statement as an argument that the allegations set forth in Paragraphs 17 and 18 of the amended complaint are material to the plaintiff's retaliation claims.

         Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.[6] Immateriality is established by showing that the challenged allegations “can have no possible bearing upon the subject matter of the litigation.”[7]

         Paragraphs 17 and 18 of the amended complaint have to do with events that occurred on September 9, 2015 when the plaintiff was allegedly forced to operate a forklift and subsequently filed a report with OSHA. While her OSHA claim was previously dismissed, the facts set forth in these two paragraphs are alleged to be one of the reasons why the defendants allegedly retaliated against the plaintiff. For that reason, the allegations in these paragraphs are not immaterial; instead, they are material to the plaintiff's retaliation claims. This Court therefore recommends that Paragraphs 17 and 18 not be stricken from the plaintiff's amended complaint.

         On page 10 of the plaintiff's amended complaint is a title to a section of the complaint, reading: “DEFAMATION AND CONSPIRACY TO DEFAME THE PLAINTIFF.” The court previously dismissed the plaintiff's conspiracy to defame claim with prejudice. (Rec. Doc. 27 at 1). Accordingly, the plaintiff's reference to a conspiracy to defame is immaterial to the remaining claims. This Court therefore recommends that the words “AND CONSPIRACY TO DEFAME THE PLAINTIFF” should be stricken from page 10 of the plaintiff's amended complaint.

         Paragraph 32 of the amended complaint contains a list of the “violations” by the defendants that the plaintiff contends entitle her to relief. The items listed in Paragraphs 32(C), (G), (H), (I), and (J), respectively, are negligent infliction of emotional distress, negligent hiring, negligent training, negligent supervision, and negligent retention. In the earlier ruling, the court dismissed with prejudice the plaintiff's claims in those categories. (Rec. Doc. 27 at 1). Accordingly, the content of Paragraphs 32(C), (G), (H), (I), and (J) is immaterial, and it is recommended that these subparagraphs should be stricken from the plaintiff's amended complaint.

         Although the defendants did not move for Paragraph 32(D) of the amended complaint to be stricken, this Court notes that Paragraph 32(D) refers to tortious interference with the plaintiff's contracts and business relationships. The plaintiff's claims for tortious interference with the plaintiff's contracts and business relationships were dismissed earlier in the litigation. (Rec. Doc. 27 at 1). Accordingly, this Court sua sponte finds that the content of Paragraph 32(D) of the amended complaint is immaterial and recommends that Paragraph 32(D) should also be stricken from the amended complaint.

         In summary, this Court recommends that the motions to strike be denied with regard to Paragraphs 17 and 18 of the plaintiff's amended complaint and granted with regard to Paragraphs 32(C), 32(D), and 32(G) through (J) of the amended complaint.

         II. The Motions for Summary Judgment

         A. The Applicable Standard

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. A fact is material if proof of its existence or nonexistence might affect the outcome of the lawsuit under the applicable governing law.[8] A genuine issue of material fact exists if a reasonable jury could render a verdict for the nonmoving party.[9]

         The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those parts of the record that demonstrate the absence of genuine issues of material fact.[10] If the moving party carries its initial burden, the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of a material fact.[11] All facts and inferences are construed in the light most favorable to the nonmoving party.[12]

         B. The Timeliness of the Sexual Harassment, Hostile Work Environment, and Retaliation Claims Asserted Against DXP

         In support of their earlier motion to dismiss (Rec. Doc. 7), the defendants argued that the plaintiff's Title VII claim based on her first EEOC charge (other than the retaliatory discharge claim) and her state-law sexual harassment, hostile work environment, and retaliation claims were untimely. In response to that motion, the plaintiff requested an opportunity to amend her complaint. The court did not rule on the timeliness of those claims; instead, it ordered the plaintiff to file an amended complaint, omitting any and all prescribed claims. (Rec. Doc. 27 at 1). This Court's report and recommendation provided more guidance, suggesting that the plaintiff “clarify[] the factual allegations underlying these claims, particularly with regard to the time frames during which any actionable conduct allegedly occurred.” (Rec. Doc. 24 at 18). The amended complaint provided little additional clarity, however, and the parties' briefing led this Court to convert the defendants' motions to dismiss to motions for summary judgment so that evidence beyond the four corners of the complaint could be scrutinized in resolving the timeliness issues.

         The following facts have now been established without dispute. The plaintiff was hired by DXP on October 16, 2013. In June and July 2014, DXP investigated her complaint that she was sexually harassed by a customer. She filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on September 3, 2015, stating that she was sexually harassed by a customer around March 7, 2014, and removed by DXP from servicing that customer's account. She further stated in the EEOC charge that she was overlooked for a promotion while out of work for surgery in July and August 2014. She claimed in the EEOC charge that she was denied a promotion in retaliation for complaining about the sexual harassment and that her coworkers would not talk ...


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