The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BARBARA LYNCH CIVIL ACTION
VERSUS NO. 19-13200
FLUOR FEDERAL PETROLEUM OPERATIONS, SECTION: “G”(5)
LLC, et al.
ORDER AND REASONS
In this litigation, Plaintiff Barbara Lynch (“Lynch”) alleges that she experienced
harassment and discrimination while employed by Fluor Federal Petroleum Operations, LLC
(“FFPO”), which Lynch alleges ultimately resulted in the wrongful termination of her employment
on July 31, 2019.1 Before the Court is Defendant Stacie Davenport’s (“Davenport”) “Rule 12(b)(6)
Motion to Dismiss for Failure to State a Claim.”2 In the motion, Davenport argues that she cannot
be held liable because all of the claims against her arise out of the course and scope of her
employment with FFPO.3 Lynch opposes the motion.4 Having considered the motion, the
memoranda in support and in opposition, the record, and the applicable law, the Court grants the
motion in part and denies it in part.
1 Rec. Docs. 1, 6.
2 Rec. Doc. 28.
3 Rec. Doc. 28-1 at 1.
4 Rec. Doc. 30.
1
I. Background
On October 18, 2019, Lynch filed a Complaint in this Court naming as defendants FFPO,
Davenport, and Scott Sclafani (“Sclafani”) (collectively, “Defendants”).5 On October 26, 2019,
Lynch filed an Amended Complaint against Defendants.6 In the Amended Complaint, Lynch
alleges that she is a 49-year-old African American female who was previously employed by FFPO
as a Procurement Contract Technician.7 Lynch alleges that her employment was terminated on
July 31, 2019, for violations of the FFPO Workplace Violence Prevention Procedure and Code of
Business Conduct and Ethics.8
In the Amended Complaint, Lynch brings claims against Sclafani for sexual harassment
(“Count 1”) and battery (“Count 2”).9 Lynch alleges that “around her fifth week at work, Sclafani
began to appear in her work area unnecessarily about 1-2 times/week.”10 Lynch asserts that
Sclafani would attempt to engage in non-work related conversation, stand uncomfortably close to
her, and sometimes touch her shoulder.11 On February 21, 2019, Lynch alleges that Sclafani
trapped Lynch in a co-worker’s cubicle and forcibly massaged her shoulder.12 Lynch asserts that
5 Rec. Doc. 1.
6 Rec. Doc. 6.
7 Id. at 1.
8 Id. at 2.
9 Id. at 4–5.
10 Id. at 4.
11 Id.
12 Id.
2
Sclafani blocked the cubicle doorway by extending his arms across it, and she had to duck under
his arm to leave.13
Lynch also brings a claim against FFPO for race discrimination (“Count 3”).14 Lynch
alleges that another co-worker, Angela Keller, displayed racial animus to Lynch by excluding
Lynch from work functions, reducing her workload, and excluding her from performing certain
work.15 Lynch alleges that on December 6, 2018, Ms. Keller called Lynch a “n***er.”16 Lynch
also alleges that on July 22, 2019, Sclafani called her a “black b***h.”17
Lynch also brings claims against FFPO, Sclafani, and Davenport for “retaliatory
harassment” and “age harassment” (“Count 4”).18 Lynch alleges that on February 22, 2019, she
informed her supervisor, Jorge Perez (“Perez”), of Sclafani’s conduct that had occurred the day
before.19 From this point forward, Lynch alleges that Sclafani, Davenport, and the rest of her work
group began to treat Lynch differently.20 Lynch alleges that when co-workers saw her “in the
hallway they would grab the walls and press themselves against the walls.”21 According to the
Amended Complaint, on March 14, 2019, Sclafani passed by Lynch’s cubicle and warned Lynch,
13 Id. at 4–5.
14 Id. at 5–12.
15 Id.
16 Id. at 8.
17 Id.
18 Id. at 12–20.
19 Id. at 12.
20 Id. at 13.
21 Id. at 14.
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“You cannot hide from me. You better be scared of me. You can’t run from me.”22 Lynch asserts
that she was moved to a cubical further away from Sclafani.23 Lynch alleges that on May 14, 2019,
Perez told Lynch directly: “I think the group is not ready for someone who looks like you and me.
I think that’s why you are being mistreated.”24 Lynch asserts that she “found a photograph of an
old gray-haired lady on her desk” on March 21, 2019.25 Lynch alleges that a similar photograph
was left in or near her cubicle on several occasions.26 Additionally, Lynch alleges that she later
found a soiled bandage on the floor in her cubicle.27 Lynch states that she “interpreted this as a
suggestion that she was unclean and a threat that she might be injured and need a bandage.”28
Lynch alleges that she complained to her superiors at FFPO about the harassment by Sclafani and
Davenport on several occasions.29 According to the Amended Complaint, “[a]fter each complaint
the known harassment by Sclafani and Ms. Davenport remained about the same, but the general
office mistreatment would get worse.”30
Lynch alleges that on July 30, 2019, she and Davenport got into a verbal altercation.31
During the incident, Lynch alleges that “Davenport rushed back to Lynch’s cubicle, pushed her
22 Id.
23 Id. at 15.
24 Id.
25 Id. at 17.
26 Id.
27 Id.
28 Id.
29 Id. at 19.
30 Id.
31 Id. at 18–19.
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twice on the chin, grabbed her by the neck and hair and threw Lynch on her left side to the floor
where she proceeded to mash her face with the palm of her hand and to scratch at her face with
her fingertips (which lacked nails).”32 Lynch alleges that this conduct by Davenport constituted a
battery (“Count 5”).33
Lynch alleges that her employment was terminated on July 31, 2019, for violations of the
workplace rules against fighting.34 Lynch contends that her termination was caused by FFPO’s
“failure to take effective remedial action against the retaliatory harassment which culminated in
the attack by Ms. Davenport making the termination a product of the harassment and therefore
wrongful.”35 Therefore, Lynch brings a claim against FFPO for “wrongful termination” (“Count
6”).36
On April 13, 2020, FFPO and Sclafani filed an Answer to the Amended Complaint.37 In
the Answer, FFPO and Sclafani “admit that FFPO is the Management and Operating Contractor
for the Strategic Petroleum Reserve under a prime contract with the United States Department of
Energy, that its headquarters is in New Orleans, and that it employs more than 500 employees.”38
Therefore, all parties appear to agree that Davenport and Lynch were employees of an independent
contractor of the federal government.
32 Id. at 19.
33 Id. at 19–20. The alleged battery is incorrectly labeled Count 4 in the Amended Complaint.
34 Id. at 20.
35 Id.
36 Id. The alleged wrongful termination is incorrectly labeled Count 5 in the Amended Complaint.
37 Rec. Doc. 31.
38 Id. at 2.
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On March 31, 2020, Davenport, proceeding pro se, filed the instant “Rule 12(b)(6) Motion
to Dismiss for Failure to State a Claim.”39 On April 6, 2020, Lynch filed an opposition to the
motion.40
II. Parties’ Arguments
A. Davenport’s Arguments in Support of the Motion
Davenport moves the Court to dismiss all claims pending against her.41 Davenport contends
that at all times she was acting in the course and scope of her employment with FFPO.42 Because
the alleged dispute between Lynch and Davenport occurred at the workplace during working
hours, Davenport asserts that Lynch’s recovery is limited to worker’s compensation.43 Davenport
contends that “an accident occurs ‘in the course of employment’ when the employee sustains an
injury while actively engaged in the performance of his duties during working hours, either on the
employer’s premises or at other places where employment activities take the employee.”44
Davenport contends that the time, place, and employment activity factors are satisfied here.45
Therefore, Davenport argues that Lynch’s claims are limited to worker’s compensation.46
39 Rec. Doc. 28.
40 Rec. Doc. 30.
41 Rec. Doc. 28-1 at 1.
42 Id.
43 Id. at 2.
44 Id. at 4 (citing Mundy v. Dep’t of Health & Human Res., 593 So. 2d 346, 349 (La. 1992)).
45 Id.
46 Id.
6
Additionally, Davenport notes that Lynch does not allege that she filed a complaint with
the Equal Employment Opportunity Commission (“EEOC”) regarding the alleged workplace
harassment.47 Accordingly, Davenport contends that all claims pending against her should be
dismissed.48
B. Lynch’s Arguments in Opposition to the Motion
In opposition, Lynch acknowledges that the Federal Employees Compensation Act
(“FECA”) limits a federal employee’s remedies against a federal employer to compensation.49
However, Lynch asserts that FECA does not limit a federal employee’s remedies against third
parties.50 Therefore, Lynch contends that the motion to dismiss should be denied.51
III. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for
failure to state a claim upon which relief can be granted.”52 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”53 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is
plausible on its face.”54
47 Id. at 3.
48 Id. at 4.
49 Rec. Doc. 30 at 1.
50 Id. at 1–2 (citing Salazar v Balesteros, 17 F. App’x 129, 131 (4th Cir 2001); Noble v. United States, 216
F.3d 1229, 1234 (11th Cir. 2000); Benton v United States, 960 F.2d 19, 21 (5th Cir 1992); Heathcoat v. Potts, 790
F.2d 1540, 1543 (11th Cir. 1986)).
51 Id. at 2.
52 Fed. R. Civ. P. 12(b)(6).
53 Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
54 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
7
The “[f]actual allegations must be enough to raise a right to relief above the speculative
level.”55 The complaint need not contain detailed factual allegations, but it must offer more than
mere labels, legal conclusions, or formulaic recitations of the elements of a cause of action.56 That
is, the complaint must offer more than an “unadorned, the defendant-unlawfully-harmed-me
accusation.”57
Although a court must accept all “well-pleaded facts” as true, a court need not accept legal
conclusions as true.58 “[L]egal conclusions can provide the framework of a complaint, [but] they
must be supported by factual allegations.”59 Similarly, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements” will not suffice.60 If the factual
allegations are insufficient to raise a right to relief above the speculative level, or an “insuperable”
bar to relief exists, the claim must be dismissed.”61
IV. Analysis
Because the alleged dispute between Lynch and Davenport occurred at the workplace
during working hours, Davenport asserts that Lynch’s recovery is limited to worker’s
(2007)) (internal quotation marks omitted).
55 Twombly, 550 U.S. at 555. Put another way, a plaintiff must plead facts that allow the court to draw a
“reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
56 Iqbal, 556 U.S. at 678.
57 Id.
58 Id. at 677–78.
59 Id. at 679.
60 Id. at 678.
61 Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 09-6470,
2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
8
compensation.62 In opposition, Lynch acknowledges that FECA limits a federal employee’s
remedies against a federal employer to compensation.63 However, Lynch asserts that FECA does
not limit the employee’s remedies against third parties.64
“FECA provides compensation for a federal employee’s personal injuries ‘sustained while
in the performance of his duty.’”65 FECA is a worker’s compensation statute applicable to federal
employees.66 FECA does not provide worker’s compensation coverage to independent contractors
of the federal government, nor does it bar a federal employee from seeking recovery from an
independent contractor of the federal government.67
62 Rec. Doc. 28-1 at 2.
63 Rec. Doc. 30 at 1.
64 Id. at 1–2 (citing Salazar, 17 F. App’x at 131; Noble, 216 F.3d at 1234; Benton, 960 F.2d at 21; Heathcoat,
790 F.2d at 1543).
65 White v. United States, 143 F.3d 232, 234 (5th Cir. 1998) (quoting 5 U.S.C. § 8102(a)).
66 Id. (“Like workers’ compensation statutes generally, “[FECA] is intended to serve as a substitute rather
than a supplement for the tort suit.”). 5 U.S.C. § 8101(1) defines a federal employee as:
(A) a civil officer or employee in any branch of the Government of the United States, including an
officer or employee of an instrumentality wholly owned by the United States;
(B) an individual rendering personal service to the United States similar to the service of a civil
officer or employee of the United States, without pay or for nominal pay, when a statute authorizes
the acceptance or use of the service, or authorizes payment of travel or other expenses of the
individual;
(C) an individual, other than an independent contractor or an individual employed by an independent
contractor, employed on the Menominee Indian Reservation in Wisconsin in operations conducted
under a statute relating to tribal timber and logging operations on that reservation;
(D) an individual employed by the government of the District of Columbia;
(E) an individual appointed to a position on the office staff of a former President under section 1(b)
of the Act of August 25, 1958 (72 Stat. 838);
(F) an individual selected pursuant to chapter 121 of title 28, and serving as a petit or grand juror;
and
(G) an individual who is a System member of the National Urban Search and Rescue Response
System during a period of appointment into Federal service pursuant to section 327 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act.
67 Ezekiel v. Michel, 66 F.3d 894, 898–99 (7th Cir. 1995).
9
At the time of the incidents at issue in this case, Lynch and Davenport were employed by
FFPO.68 FFPO is “the Management and Operating Contractor for the Strategic Petroleum Reserve
under a prime contract with the United States Department of Energy.”69 Based on the allegations
in the pleadings, Lynch and Davenport were employees of FFPO, an independent contractor of the
federal government; they were not federal employees. Accordingly, FECA does not bar Lynch’s
recovery in this matter.
In the pro se motion, Davenport argues that Lynch’s tort claims are barred by the Louisiana
Workers’ Compensation Act.70 Lynch does not respond to this argument.71 Nevertheless,
Davenport’s argument is without merit. Pursuant to Louisiana Revised Statute § 23:1032(B), an
employee who is injured as a result of an intentional act by a co-employee is not limited to workers’
compensation and may pursue a tort remedy against that co-employee.72
Lynch brings claims against Davenport for battery and harassment. Battery is an intentional
tort under Louisiana law.73 Similarly, harassment can be an intentional tort “not within the purview
of the state workers’ compensation law.”74 Therefore, Lynch’s state law battery and harassment
68 Id.
69 Rec. Doc. 31 at 2. See also Rec. Doc. 6 at 1 (“FFPO’s New Orleans office is the central office for the
management of the Strategic Petroleum Reserve (SPR) under contract with the US Department of Energy.”).
70 Rec. Doc. 28-1 at 4 (citing Mundy, 593 So. 2d at 349).
71 Rec. Doc. 30.
72 Villa v. Derouen, 614 So. 2d 714, 716 (La. Ct. App. 1993) (citing La. Rev. Stat. § 23:1032(B)).
73 Id. See also Cariere v. The Kroger Store, 50,637 (La. App. 2 Cir. 11/16/16); 208 So. 3d 987, 990 (“The
intentional tort of battery is a harmful or offensive contact with a person, resulting from an act intended to cause the
plaintiff to suffer such a contact.”).
74 Morris & Dickson Co. v. Killingworth, 36,117 (La. App. 2 Cir. 10/4/02); 830 So. 2d 332, 334. See also
Attardo v. Brocato, 96-1170 (La. App. 4 Cir. 2/5/97); 688 So. 2d 1296, 1297 (claim against employer regarding
harassment by a non-employee would fall under worker’s compensation unless the plaintiff could show that she was
injured as the result of an intentional act by her employer).
10
claims against Davenport are not barred by the Louisiana Workers’ Compensation Act.
Accordingly, the Court denies the motion to the extent it seeks to dismiss Lynch’s state law battery
and harassment claims against Davenport.
Finally, Davenport contends that Lynch’s employment discrimination claims fail.75 Again,
Lynch does not respond to this argument.76 The law is clear in the Fifth Circuit––there is no
individual liability for employees under Title VII of the Civil Rights Act of 1964 (“Title VII”).77
Likewise, the Age Discrimination in Employment Act of 1967 (the “ADEA”) “‘provides no basis
for individual liability for supervisory employees.’”78 To the extent Lynch brings claims under
Title VII or the ADEA against Davenport individually, those claims fail as a matter of law.
V. Conclusion
The law is clear—an employee can pursue an intentional tort claim against a co-worker.
However, an employee cannot pursue an employment discrimination claim under Title VII or the
ADEA against a co-worker. Accordingly,
75 Rec. Doc. 28-1 at 3.
76 Rec. Doc. 30.
77 Malcolm v. Vicksburg Warren Sch. Dist. Bd. of Trustees, 709 F. App’x 243, 247 (5th Cir. 2017) (quoting
Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 381 n. 1 (5th Cir. 2003)) (“Individuals are not liable under Title VII in
either their individual or official capacities.”).
78 Id. (quoting Medina v. Ramsey Steel Co., 238 F.3d 674, 686 (5th Cir. 2001); (Stults v. Conoco, Inc., 76
F.3d 651, 655 (5th Cir. 1996)).
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IT IS HEREBY ORDERED that Defendant Stacie Davenport’s “Rule 12(b)(6) Motion
to Dismiss for Failure to State a Claim”’? is GRANTED IN PART and DENIED IN PART. The
motion is GRANTED to the extent it seeks dismissal of any Title VII and ADEA claims against
Davenport individually. The motion is DENIED in all other respects.
NEW ORLEANS, LOUISIANA, this 28thiay of December, 2020.
NANNETTE JOLIYETTE BROWN (0
CHIEF JUDGE
UNITED STATES DISTRICT COURT
® Rec. Doc. 28.
12