United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is Jazz Casino Company and Harrah's New Orleans
Management Company's motion for summary judgment that
they are not vicariously or primarily liable for an
employee's alleged assault and battery. For the reasons
that follow, the motion is GRANTED, in part, as to all claims
against Harrah's New Orleans Management Company and the
direct negligence claims against Jazz Casino Company, and
DENIED, in part, as to the vicarious liability claim against
Jazz Casino Company.
casino guest says a security guard sexually assaulted her at
Harrah's New Orleans Casino. This lawsuit followed.
summer 2017, the weekend of Essence Festival. Shanta Duncan had
travelled to New Orleans to attend. On her first night in
town, she visited Harrah's Casino, hoping to catch a
late-night concert at the Masquerade Nightclub. She was
alone. Christopher Celestine was working security that night;
it was his job to check identification and
“engage” with patrons. He spotted Duncan in the
tunnel entrance and struck up a conversation. He and Duncan
disagree about what happened next.
to Duncan, Celestine offered her free concert tickets and
asked her to step aside. She obliged. Now alone, Celestine
asked Duncan “what [she] got on up under that dress,
” pulled her dress to the side, and placed his hand on
her vagina. Duncan recoiled. Celestine responded that he
“just want[ed] to see what was up under [Duncan's]
dress.” Duncan left the casino but returned several
hours later, hoping to obtain Celestine's name. She was
unsuccessful: Celestine had flipped his nametag so that his
name was not visible.
tells a different story. He says he engaged Duncan in polite
small talk, and he denies touching her vagina. He says he was
“just making jokes” about her attire. Although
surveillance footage shows his hand moving near Duncan's
vagina, Celestine insists he was merely demonstrating how her
dress came close to flunking the casino's dress code.
rest is undisputed. The day after the alleged incident,
Duncan returned to the casino to file a report. She spoke
with the casino's Director of Security, Stacey Dorsey,
and gave a written statement. She filed a police report a few
days later. Based on the report, the New Orleans Police
Department Sex Crimes Unit issued a warrant for
Casino Company owns Harrah's New Orleans Casino. It has
twice hired and fired Celestine. It first hired him in August
2015, following a panel interview and a background check
confirming he had no criminal record. It fired him nine
months later, citing his “appearance of sleeping while
on duty.” The termination provided, however, that
Celestine was “eligible for re-hire” at any time.
2017, Jazz Casino Company re-hired Celestine as a security
officer. It performed another background check, which again
reflected that Celestine had no criminal record. The alleged
assault and battery occurred two months later, on July 3,
2017, and Celestine's final day of work was the next day.
Celestine was suspended and, in September 2017, fired.
the alleged incident, Jazz Casino Company lacked information
indicating that Celestine was prone to sexual misconduct: He
had no criminal record; he had never been disciplined by any
prior employer; and he had never been accused of sexual
misconduct. To the contrary, he was a middle-aged single
father of two children, ages eleven and ten. Jazz Casino had
even provided him some sexual harassment training. But
Celestine's supervisors noticed some unusual behavior on
the day of the incident: He spent an "inordinate amount
of time fraternizing” and, at “a couple of
points, ” appeared to swap phone numbers with patrons.
the Court's diversity jurisdiction, Duncan sued
Celestine, Jazz Casino Company, and Harrah's New Orleans
Management Company. She alleges negligent infliction of
emotional distress, assault, and battery claims against
Celestine. She says Jazz Casino Company and Harrah's New
Orleans Management Company are vicariously liable for
Celestine's torts and primarily liable for negligently
hiring, supervising, and training him.
Jazz Casino Company and Harrah's New Orleans Management
Company move for summary judgment that they are neither
vicariously nor primarily liable in connection with
Celestine's alleged assault and battery. Duncan opposes.
judgment is proper if the record discloses no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986). A fact is “material” if it
“might affect the outcome of the suit.”
Id. at 248.
non-movant will bear the burden of proof at trial, “the
movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of
material fact warranting trial.” In re La. Crawfish
Producers, 852 F.3d 456, 462 (5th Cir. 2017) (citation
Court emphasizes that the mere argued existence of a factual
dispute does not defeat an otherwise properly supported
motion. See Anderson, 477 U.S. at 248. Nor do
“[u]nsubstantiated assertions, improbable inferences,
and unsupported speculation[.]” Brown v. City of
Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003).
Ultimately, to avoid summary judgment, the non-movant
“must go beyond the pleadings and come forward with
specific facts indicating a genuine issue for trial.”
LeMaire v. La. Dep't of Transp. & Dev., 480
F.3d 383, 387 (5th Cir. 2007).
deciding whether a fact issue exists, the Court views the
facts and draws all reasonable inferences in the light most
favorable to the non-movant. See Midwest Feeders, Inc. v.
Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018). The
Court “resolve[s] factual controversies in favor of the
nonmoving party, ” but “only where there is an
actual controversy, that is, when both parties have submitted