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
Plaintiff Barbara Lynch (“Lynch”) filed this lawsuit against her employer and co-workers
arising out of alleged harassment and discrimination that she faced during her employment with
Defendant Fluor Federal Petroleum Operations, LLC (“FFPO”).1 Lynch brings this litigation
against FFPO, Scott Sclafani (“Sclafani”), and her co-worker Stacie Davenport (“Davenport”).2
Davenport, in turn, brings a counterclaim against Lynch for battery,3 and a crossclaim against
FFPO for (1) vicarious liability; and (2) negligence in failing to protect Davenport from Lynch.4
On July 28, 2021, the Court denied FFPO’s motion for partial summary judgment seeking
dismissal of Davenport’s vicarious liability claim.5 Before the Court is FFPO’s motion for partial
1 Rec. Docs. 1, 6.
2 Rec. Doc. 6.
3 Rec. Doc. 57.
4 Rec. Docs 57, 157.
5 Rec. Doc. 196.
1
summary judgment seeking dismissal of Davenport’s crossclaim for negligence.6 Davenport
opposes the motion.7
For the reasons set forth below, the Court denies the motion. The Court finds that there is
a dispute of fact as to whether the altercation between Davenport and Lynch was related to
employment, and therefore, FFPO is not entitled to summary judgment on its argument that
Davenport’s negligence claim is barred by the Louisiana Workers Compensation Act.
Additionally, there is a genuine dispute of fact as to whether FFPO exercised reasonable care for
Davenport’s safety, and thus FFPO is not entitled to summary judgment on the merits of
Davenport’s negligence claim. Therefore, having considered the motion, the memoranda in
support and in opposition, the record, and the applicable law, the Court denies the motion.
I. Background
On October 18, 2019, Lynch filed a Complaint in this Court naming as defendants FFPO,
Davenport, and Scott Sclafani (“Sclafani”) (collectively, “Defendants”).8 On October 26, 2019,
Lynch filed an Amended Complaint against Defendants.9 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.10 Lynch alleges that her employment was terminated on
6 Rec. Doc. 244.
7 Rec. Doc. 265.
8 Rec. Doc. 1.
9 Rec. Doc. 6.
10 Id. at 1.
2
July 31, 2019, for violations of the FFPO Workplace Violence Prevention Procedure and Code of
Business Conduct and Ethics.11
Lynch alleges, among other things, that on July 30, 2019, she and Davenport got into a
verbal altercation.12 During the incident, Lynch alleges that “Davenport rushed back to [Lynch]’s
cubicle, pushed her 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).”13 Lynch alleges that this conduct by
Davenport constituted “retaliatory harassment” and battery.14
Davenport filed an answer, counterclaim, and crossclaim on July 30, 2020.15 On January
18, 2021, she filed an Amended Crossclaim.16 Davenport alleges that from the outset of Lynch’s
employment, Lynch engaged in “threatening, abusive, and harassing behavior” with co-workers
including Davenport.17 Davenport contends that, although Lynch directed this behavior at various
employees, “the worst and most frequent of her deleterious conduct was directed at Caucasian
employees like” Davenport.18 Davenport alleges that she made at least seven reports to her
supervisor and FFPO’s Human Resources department regarding Lynch’s conduct, including two
11 Id. at 2.
12 Id. at 18–19.
13 Id. at 19.
14 Id. at 19–20.
15 Rec. Doc. 57.
16 Rec. Doc. 157.
17 Id. at 2.
18 Id.
3
formal complaints to Human Resources representative Ginger Roques (“Roques”) and four verbal
reports to her direct supervisor, Jorge Perez.19
Despite these complaints, Davenport contends that no one from FFPO followed up with
her, and no disciplinary action was ever taken against Lynch.20 Davenport asserts that, on one
occasion, Roques told Davenport that she “simply ‘didn’t know how’ to handle the situation with
Lynch.”21 Davenport further contends that other employees also complained to FFPO about
Lynch’s conduct, and those complaints were ignored.22 Davenport alleges that had FFPO
investigated Lynch’s employment background, FFPO could have discovered that Lynch had a
“history of mental instability and/or other psychological issues.”23
Davenport alleges that on July 29, 2019, she discovered that Lynch had erased a whiteboard
which Davenport used for her work (“the Whiteboard Incident”). After confronting Lynch about
it, Davenport avers that Lynch said “I’ll erase any f[**]ing thing I want to in this office. You don’t
own this board. This is Fluor’s property, and I’ll erase any fucking thing I want.”24 Concerned
over this encounter, Davenport alleges that she reported the incident to Roques, and informed
Roques that she wanted to go home because she was afraid for her safety.25
19 Id. at 3.
20 Id. at 4.
21 Id.
22 Id. at 4–5.
23 Id.
24 Id. at 5.
25 Id.
4
Davenport asserts that after another HR employee emailed Lynch to discuss Davenport’s
complaint about her, Lynch started an altercation with Davenport and then attacked her by
grabbing her lanyard, throwing her to the ground, and pulling out her hair.26 Davenport alleges
that she sustained injuries to her arms, neck, and back.27 After the incident, Davenport alleges that
she and Lynch were separated, and that Roques and Perez instructed her to fill out paperwork
describing the attack.28 Davenport further alleges that although FFPO promised to conduct an
investigation, her employment was terminated the following day.29
Accordingly, Davenport brings a claim against FFPO for negligence.30 On November 2,
2021, FFPO filed the instant motion for partial summary judgment.31 On November 23, 2021
Davenport filed an opposition brief.32 On December 3, 2021, with leave of Court, FFPO filed a
reply.33
26 Id. at 7.
27 Id. at 6.
28 Id.
29 Id. at 8.
30 Rec. Doc. 157.
31 Rec. Doc. 244
32 Rec. Doc. 265.
33 Rec. Doc. 281.
5
II. Parties’ Arguments
A. FFPO’s Arguments in Support of the Motion
FFPO seeks dismissal of Davenport’s negligence claim.34 First, FFPO argues that
Davenport’s claim is barred by worker’s compensation immunity. FFPO contends that “[c]laims
by employees that seek to recover for injuries that allegedly occurred as a result of employer
negligence are generally barred by worker’s compensation immunity.”35 Thus, FFPO argues that
Davenport is barred from asserting any negligence claims against FFPO, and therefore it is entitled
to summary judgment on that claim.36
Alternatively, FFPO argues that it is entitled to summary judgment because it was not
reasonably foreseeable to FFPO that Lynch would attack Davenport.37 Although FFPO
acknowledges that Davenport reported Lynch for “petty slights,” FFPO argues that neither
Davenport nor any other employee ever reported that Lynch made threats of violence.38 FFPO
contends that the record is “devoid of any evidence that [Lynch] had ever engaged in or threatened
physical violence.”39 FFPO points out that of the ten fact witnesses who have been deposed, none
of them testified that the altercation between Davenport and Lynch was foreseeable.40 FFPO
34 Rec. Doc. 244.
35 Rec. Doc 244–1 at 3.
36 Id.
37 Id. at 4.
38 Id.
39 Id. at 8.
40 Id. at 8–9.
6
argues that Davenport’s complaints about Lynch are insufficient to put FFPO on notice that Lynch
would become violent.41 FFPO further argues that although Davenport testified that Lynch’s
reaction when Davenport confronted her about the White Board Incident made Davenport fearful,
“Davenport’s only evidence to suggest that Lynch’s violence was foreseeable is her own
speculation.”42 As a result, FFPO argues that this claim cannot survive summary judgment.43
Next, FFPO contends that it is entitled to summary judgment because Davenport cannot
show that FFPO failed to take reasonable steps to prevent workplace violence.44 FFPO asserts that
it had a company policy prohibiting violence in the workplace.45 FFPO further asserts that it
conducted a background check on Lynch as it does for all employees.46 FFPO also argues that it
took steps to address Davenport’s complaints about Lynch by holding a department wide meeting
to address complaints within the department, by complying with Davenport’s request for HR to
conduct a team-building exercise, and by convening an additional meeting where the CFO of FFPO
advised the department’s employees to treat each other with respect.47 Furthermore, FFPO points
out that after Davenport reported the White Board Incident, FFPO began an investigation and
instructed Lynch to report to HR for questioning.48 Based on these actions, FFPO argues that
41 Id. at 10.
42 Id. at 11.
43 Id.
44 Id.
45 Id.
46 Id.
47 Id. at 12.
48 Id.
7
Davenport cannot show that FFPO failed to take reasonable steps to protect her under the
circumstances, and therefore FFPO is entitled to summary judgment on the negligence claim.
B. Davenport’s Arguments in Opposition to the Motion
In opposition, Davenport argues that her crossclaim is not barred by the Louisiana Workers
Compensation Act (“LWCA”) because the basis of her negligence claim against FFPO is that a
co-employee committed an intentional tort against her, and the LWCA does not apply to
intentional torts.49 Davenport argues that “although this is a negligence claim, it is based upon an
intentional tort,” and thus contends that the LWCA does not bar her negligence claim against
FFPO.50 Thus, Davenport contends that summary judgment should be denied.
Davenport further argues that there are genuine issues of material fact as to whether
Lynch’s conduct was reasonably foreseeable and whether FFPO failed to take reasonable steps to
prevent the attack.51 Davenport contends that of the five elements of negligence—duty, breach,
cause-in-fact, scope of liability or protection, and damages—the last four elements are “questions
for the jury” that the Court cannot decide on a motion for summary judgment.52 Davenport argues
that because “foreseeability and gravity of harm are determined by the unique facts and
circumstances of each case,” various factual disputes defeat FFPO’s motion for summary
judgment.53
49 Rec. Doc. 265 at 7–8.
50 Id.
51 Id. at 8.
52 Id. at 9.
53 Id.
8
Davenport argues that FFPO was “repeatedly put on notice of Lynch’s continued conduct”
and that “such conduct was escalating.”54 Davenport notes that Lynch’s conduct “had gotten so
bad that Davenport went home crying because she was so upset.”55 Nevertheless, Davenport
contends that “nothing was done.”56 Davenport further argues that although FFPO “performed a
formal investigation into conduct of other employees which Lynch complained of,” FFPO “did
nothing in response to Davenport’s complaints.”57 Davenport also argues that there is no evidence
to support the testimony that FFPO conducted a background check on Lynch.58 In sum, Davenport
argues that because the evidence shows that “Lynch was a problem from the get-go, her behavior
escalated over time, and nothing was ever done to reprimand her for her behavior,” summary
judgment should be denied and the jury should be permitted to determine “whether Lynch’s
conduct was reasonably foreseeable and whether FFPO could have prevented her conduct.”59
C. FFPO’s Arguments in Further Support of the Motion
54 Id.
55 Id.
56 Id.
57 Id. at 10.
58 Id.
59 Id. at 11.
9
In reply, FFPO re-urges that the negligence claim is barred by the LWCA.60 FFPO argues
that because only the negligence claim is at issue, the “intentional act” exception to the LWCA
does not apply.61 As a result, FFPO contends that the claim is barred.62
Furthermore, FFPO argues again that Davenport has not shown that FFPO knew or should
have known that Lynch would become violent. First, FFPO contends that even if Lynch’s behavior
“escalated” prior to the incident, that behavior did not suggest to FFPO that Lynch would attack
Davenport.63 Next, FFPO argues that Davenport’s assertion that other employees had problems
with Lynch is misleading.64 Instead, FFPO contends that these other incidents actually involved
complaints made by Lynch about other employees, rather than complaints that other employees
made about Lynch.65 FFPO further argues that the complaints that Davenport herself made about
Lynch are insufficient to put FFPO on notice of Lynch’s potential for violence because all of those
reports involved Lynch “acting rudely, not [] acting violently or in a threatening manner.”66 Thus,
FFPO contends that it is entitled to summary judgment because it was not foreseeable to FFPO
that Lynch would attack Davenport.67
60 Rec. Doc. 289 at 1.
61 Id. at 1–2.
62 Id.
63 Id. at 4.
64 Id.
65 Id. at 4–5.
66 Id. at 5.
67 Id. at 6.
10
Lastly, FFPO re-urges its argument that Davenport cannot show that FFPO failed to take
reasonable steps to prevent the fight.68 FFPO notes that by terminating Lynch and Davenport’s
employment, FFPO demonstrated “strict adherence” to its policy against workplace violence.69
Furthermore, FFPO reiterates that it conducted a background check on Lynch prior to hiring her.70
In response to Davenport’s claim that there is “no documentation” of this background check, FFPO
points to various pieces of evidence in the record suggesting that it performed a background
check.71 FFPO further argues that Davenport has not disputed the various actions FFPO took to
address employee complaints, such as hosting departmental meetings and hosting a team-building
exercise.72 FFPO also notes that it was “in the process of investigating Davenport’s complaint
about the whiteboard erasure when the fight broke out.”73 Thus, FFPO argues that summary
judgment should be granted because it took reasonable steps in response to Davenport’s
complaints.74
III. Legal Standard
Summary judgment is appropriate when the pleadings, discovery, and affidavits
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
68 Id. at 8.
69 Id.
70 Id.
71 Id. On December 13, 2021, the background check was filed into the record under seal. Rec. Doc. 290.
72 Rec. Doc. 289 at 9.
73 Id.
74 Id.
11
a matter of law.”75 To decide whether a genuine dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”76 All reasonable inferences are drawn in favor of the nonmoving party.
Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”77
If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then
no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a
matter of law.78 The nonmoving party may not rest upon the pleadings.79 Instead, the nonmoving
party must identify specific facts in the record and articulate the precise manner in which that
evidence establishes a genuine issue for trial.80
The party seeking summary judgment always bears the initial responsibility of showing the
basis for its motion and identifying record evidence that demonstrates the absence of a genuine
issue of material fact.81 “To satisfy this burden, the movant may either (1) submit evidentiary
documents that negate the existence of some material element of the opponent’s claim or defense,
or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at
trial, demonstrate that the evidence in the record insufficiently supports an essential element of the
75 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
76 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
77 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
78 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
79 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
80 See id.; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
81 Celotex, 477 U.S. at 323.
12
opponent’s claim or defense.”82 If the moving party satisfies its initial burden, the burden shifts to
the nonmoving party to “identify specific evidence in the record, and to articulate” precisely how
that evidence supports the nonmoving party’s claims.83 The nonmoving party must set forth
“specific facts showing the existence of a ‘genuine’ issue concerning every essential component
of its case.”84
The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied
merely by creating “some metaphysical doubt as to the material facts,” “by conclusory
allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.”85 Moreover, the
nonmoving party may not rest upon mere allegations or denials in its pleadings.86 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.
IV. Analysis
The LWCA provides for compensation where “an employee receives personal injury by
accident arising out of and in the course of [her] employment.”87 Generally, compensation under
the LWCA is “exclusive of all rights and remedies against [the] employer, any officer or principal
of the employer, or any co-employee.”88 However, there is an exception to this rule of exclusivity
82 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (quoting Little, 939 F.2d at 1299).
83 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
84 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
85 Little, 37 F.3d at 1075 (internal citations omitted).
86 Morris, 144 F.3d at 380.
87 Caudle v. Betts, 87-445 (La. 9/9/87); 512 So.2d 389, 390.
88 Id. at 390.
13
where the “suit is based on an intentional act.”89 The Louisiana Supreme Court has noted that the
“only reasonable conclusion to be drawn from the legislative process” behind the LWCA is that
the legislature “rejected attempts to make the exception any broader than ‘intentional’ acts of the
employer,” making clear that it was “giving the exception a narrow scope, limited to conduct which
is truly intentional.”
Davenport argues that her claim is not barred by the LWCA because it is based on “the
intentional tort of battery which Davenport alleges Lynch committed against her.”90 The Court has
already rejected this argument. In the Court’s December 28, 2020 decision on FFPO’s Motion to
Dismiss the Crossclaim, the Court stated that:
[I]t is not sufficient that someone committed an intentional act that resulted in an
injury to an employee; rather, an employee must bring a claim against the person
alleged to have committed such an act. Davenport’s allegations that Lynch
committed intentional torts of battery and assault against her do not serve to exempt
Davenport’s claims against FFPO under the LWCA.91
In that Order, the Court also noted that:
While negligence generally is not actionable under the LWCA for work-related
injuries, the LWCA “does not apply to injuries arising out of a dispute with another
person or employee over matters unrelated to the injured employee’s employment.”
Regarding non-work related injuries, an employer “has a duty to exercise
reasonable care for the safety of its employees and to avoid exposing them to
unreasonable risks of injury or harm.”92
The Court then ruled that Davenport had failed to plead sufficient facts for the Court to determine
89 White v. Monsanto Co., 91-148 (La. 9/9/91); 585 So. 2d 1205, 1208.
90 Rec. Doc. 265 at 7.
91 Rec. Doc. 141 at 14.
92 Id. at 15.
14
whether the altercation between Lynch and Davenport was unrelated to their employment—and
thus outside the LWCA.93 The Court granted Davenport leave to amend her crossclaim, which she
did on January 18, 2021.94
In order to be entitled to summary judgment on the issue of whether Davenport’s
negligence claim is barred under the LWCA, then, FFPO has the burden of showing that there is
no genuine dispute of material fact that the altercation between Lynch and Davenport was related
to their employment with FFPO.95 However, FFPO’s Motion does not address this point. FFPO
spends only three sentences arguing that the negligence claim is barred by the LWCA. FFPO’s
argument that the negligence claim is barred by the LWCA is in some tension with its argument,
presented at other stages of these proceedings, that it cannot be vicariously liable for Davenport’s
battery claim against Lynch.96 In order to succeed on the LWCA argument, FFPO must establish
that the altercation was related to employment.97 And, of course, to succeed on the vicarious
liability argument, FFPO must establish that Lynch was acting outside the course of employment.98
However, the Court has already ruled on another motion for summary judgment that there is a
genuine dispute of material fact over whether Lynch’s alleged conduct was within the course of
her employment for purposes of Davenport’s vicarious liability claim.99 Additionally, in the instant
93 Id. at 17.
94 Rec. Doc. 157.
95 Mitchell v. Southern Scrap Recycling, LLC, 11-2201 (La. App. 1 Cir. 6/8/12); 93 So. 3d 754, 758 (“An
employer seeking to avail itself of tort immunity bears the burden of proving its entitlement to immunity.”).
96 Rec. Doc. 176.
97 See Carr v. Sanderson Farms, Inc., 2016-1064 (La. App. 1 Cir. 2/17/17); 215 So. 3d 437, 440.
98 See Baumeister v. Plunkett, 95-2270 (La. 5/21/96), 673 So. 2d 994.
99 Rec. Doc. 196.
15
motion, FFPO has not made any attempt to demonstrate that the conduct was related to
employment, and thus within the LWCA. As a result, FFPO is not entitled to summary judgment
on this issue.
Next, FFPO argues it is entitled to summary judgment because it was not foreseeable to
FFPO that Lynch would attack Davenport. In actions for negligence, Louisiana law requires the
plaintiff to prove the following five elements:
(1) proof that the defendant had a duty to conform his conduct to a specific standard
(the duty element); (2) proof that the defendant’s conduct failed to conform to the
appropriate standard (the breach element); (3) proof that the defendant’s
substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact
element); (4) proof that the defendant’s substandard conduct was a legal cause of
the plaintiff’s injuries (the scope of liability or scope of protection element); and
(5) proof of actual damages (the damages element).100
Whether a duty exists in a particular set of circumstances is a question of law for the Court to
decide.101 The relevant inquiry is “whether the plaintiff has any law (statutory, jurisprudential, or
arising from general principles of fault) to support the claim that the defendant owed him a
duty.”102 Under Louisiana law, “[a]n employer has a duty to exercise reasonable care for the safety
of its employees and to avoid exposing them to unreasonable risks of injury or harm. If an employer
knows or should know of a dangerous condition or person on its premises, the employer is
obligated to take reasonable steps to protect its employees.”103 Thus, FFPO, as Davenport’s
employer, had a duty to exercise reasonable care for Davenport’s safety.
100 Long v. State ex rel. Dept. of Transp. and Development, 04-485 (La. 6/29/05); 916 So. 2d 87, 101.
101 Mathieu v. Imperial Toy Corp., 94-952 (La. 11/30/94); 646 So. 2d 318, 322.
102 Audler v. CBC Innovis Inc., 519 F.3d 239 (5th Cir. 2008) (quoting Faucheaux v. Terrebonne Consol.
Gov’t, 92-930 (La. 2/22/93); 615 So. 2d 289, 292).
103 Carr v. Sanderson Farms, Inc., 16-1064 (La. App. 1 Cir. 2/17/17); 215 So. 3d 437, 440
16
FFPO argues, however, that to determine the existence of a duty, the Court should look to
“the foreseeability of the risk and the gravity of the potential harm.”104 Thus, FFPO argues that
because it was not foreseeable that Lynch would violently attack Davenport, FFPO did not owe
Davenport a duty to protect her from that kind of harm. FFPO relies on Jones v. Buck Kreihs
Marine Repair, LLC for that proposition. In Jones, however, the Louisiana Fourth Circuit Court
of Appeal addresses foreseeability in describing the causation element of negligence, rather than
the duty element.105 The court explained that the “essence of the legal cause inquiry is whether the
risk and harm encountered by the plaintiff fall within the scope of protection of the duty.”106 Under
Louisiana law, “legal cause is a mixed question of law and fact for the jury (or other fact-finder)
to decide.”107 For the reasons explained below, the Court finds that whether Lynch’s allegedly
violent attack was foreseeable to FFPO—and thus whether FFPO’s conduct was the legal cause of
Davenport’s injury—creates a genuine dispute of material fact for the jury to decide at trial.
FFPO also cites Taylor v. Shoney’s Inc. for the proposition that the duty inquiry is “whether
the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this
type of harm arising in this manner.”108 In that case, the plaintiff asserted a negligence claim
against the defendant after one of the defendant’s employees (“Earp”), shot and killed the
104 Rec. Doc 244–1 at 4.
105 Jones v. Buck Kreihs Marine Repair, LLC, 13-0083 (La. App. 4 Cir. 8/21/13); 122 So. 3d 1181, 1186
106 Id.
107 Chatman v. Southern University at New Orleans, 15-1179 (La. App. 4 Cir. 7/6/16); 197 So. 3d 366, 375
(citing Parents of Minor Child v. Charlet, 13-2879 (La. 4/4/14); 135 So. 3d 1177).
108 Rec. Doc. 244–1 at 5 (citing Taylor v. Shoney’s, Inc., 98-810 (La. App. 5 Cir. 1/26/99); 726 So. 2d 519.
17
plaintiff’s wife with a gun that he had purchased from another employee (“Williams”).109 The
Louisiana Fifth Circuit Court of Appeal noted that the relevant duty was for the employer to
“exercise reasonable care in the selection of [an] employee” “who in the performance of his duties
will have a unique opportunity to commit a crime against a third party.”110 However, the court
found that the defendant did not owe a duty to the plaintiff because there was no such “unique
opportunity” for either Williams to sell the gun to Earp, or for Earp to buy the gun and murder a
third party.111 The court reasoned as follows:
There [was] no allegation that [the defendant] was aware that Williams engaged in
the illegal transfer of the gun, or that he had done so more than once, or that
[defendant] should have been aware of these activities, or that Williams had
a propensity or record for engaging in illegal activities. Assuming that [the
defendant] had a duty to ensure that employees did not bring guns on the premises,
that duty is clearly to protect its customers and other employees; further, the murder
did not take place on the premises. For that same reason, the allegation that [the
defendant] was negligent in permitting an employee with a criminal record to carry
a gun on the premises does not disclose a duty, since the murder took place
elsewhere, after working hours.112
Thus, the court held that the employer’s duty toward third parties was not implicated.113 Here,
however, a different duty is at issue. Employers have a duty to exercise reasonable care for the
safety of their employees.114 Because Davenport was an employee of FFPO, rather than a third
party, FFPO had a duty to exercise reasonable care for her safety.
109 Taylor, 726 So. 2d at 520–521.
110 Id.
111 Id. at 523.
112 Id.
113 Id.
114 Carr, 215 So. 3d at 440.
18
As to whether it was foreseeable to FFPO that Lynch would attack Davenport, the Court
finds that there is a genuine dispute of material fact for the jury to decide. FFPO contends that it
was not foreseeable because there is no evidence that Lynch had ever engaged in or threatened
physical violence.115 FFPO points to Lynch’s deposition testimony that she had never been in a
physical fight prior to the incident with Davenport.116 FFPO also suggests that none of the
witnesses who have been deposed has testified that the fight between Davenport and Lynch was
foreseeable.117 FFPO also highlights deposition testimony from FFPO Director of Human
Resources Todd Almquist who testified that he never saw any warning signs of workplace
violence.118 Similarly, FFPO notes that Jorge Perez, who supervised both Lynch and Davenport,
testified that he did not see signs of workplace violence.119
FFPO contends that prior to the incident with the whiteboard, the only complaints made
about Lynch were: 1) that she had a nasty attitude and was not a “team member”; 2) that she “rolled
her eyes and engaged in name-calling under her breath”; 3) that she failed to answer question on
Mr. Perez’s behalf; 4) that she failed to order paper for the stock room; and 5) that she slammed
the file room door and told Davenport not to look at her.120 FFPO argues that none of these were
sufficient to put FFPO on notice that Lynch would become violent.121 Further, although FFPO
115 Rec. Doc. 244–1 at 8.
116 Id.; Rec. Doc 248–5 at 6.
117 Rec. Doc. 244–1 at 8.
118 Rec. Doc. 244–1 at 9; Rec. Doc. 248–9 at 6.
119 Rec. Doc. 244–1 at 9; Rec. Doc. 248–10 at 8.
120 Rec. Doc. 244–1 at 9–10; Rec. Doc. 248–3.
121 Rec. Doc. 244–1 at 9.
19
acknowledges Davenport’s testimony that the whiteboard incident made her fearful of Lynch,
FFPO asserts that Davenport never reported that that Lynch made any threats to her.122
In response, Davenport argues that the attack was foreseeable because Lynch’s conduct
“escalated” in the weeks and months leading up to the attack.123 Davenport points to her deposition
testimony where she stated that Lynch’s conduct got “worse and worse.”124 She further points to
the testimony of Jorge Perez, Lynch and Davenport’s supervisor, who testified that other
employees also had issues with Lynch.125 Davenport also highlights email communications
between Perez and Roques, FFPO’s HR supervisor, relating to an incident between Lynch and
another employee, Nadine Anthony.126 Davenport points to another email from Perez to Almquist,
informing Almquist that Davenport asked to go home following an incident where Lynch was rude
to Davenport.127 In that email, Perez wrote “Need HR help. Let’s discuss.”128 Davenport also notes
122 Rec. Doc. 244–1 at 11.
123 Rec. Doc. 265 at 9.
124 Id. at 2; Rec. Doc. 248–3.
125 Rec. Doc. 265 at 2; Rec. Doc 265–3 at 5. In reply, FFPO contends that this testimony refers to complaints
that Lynch made about others, not complaints that other employees made about Lynch. In support, FFPO cites
examples of complaints that Lynch made about other employees. Although this may go the weight the jury assigns to
Perez’s testimony at trial, it does not conclusively contradict the deposition testimony. When asked if employees other
than Scott Sclafani made complaints about Lynch, Perez responded that “others did,” and specifically named
“Meredith,” “T.J.” and “Jeanne.” Rec. Doc. 265–3 at 5. That FFPO had received numerous complaint’s about Lynch
creates a dispute of fact as to whether, in the aggregate, it was foreseeable to FFPO that Lynch would attack Davenport.
126 Rec. Doc. 265 at 3; Rec. Doc. 265–5 at 2. As FFPO points out in reply, the email actually describes a
complaint made by Lynch about Nadine Anthony. The email quotes a text from Lynch that stated as follows:
Also, I’m growing very TIRED of people feeling brazen enough to come into my
personal space to YELL at me. Nadine just publicly, loudly scolded me for
printing to the printer behind her.
127 Rec. Doc. 265 at 3; Rec. Doc. 265–5 at 1.
128 Id.
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Perez’s deposition testimony where he stated that there were “plenty of incidents, reports back and
forth” relating to “incidents Barbara Lynch had with other co-workers.”129 Davenport also
highlights FFPO’s statement of uncontested facts, which notes that Lynch referred to other
employees as “ho,” “prick” and “piece[] of crap.”130 Davenport also testified that Lynch would
pass by her and make inappropriate comments under her breath, such as “Bitch. You white Bitch.
You ho. You’re worthless. You’re useless.”131 Davenport testified that she reported the name
calling to Perez on more than one occasion.132
Thus, Davenport has produced various pieces of record evidence regarding FFPO’s
knowledge of Lynch’s inappropriate behavior. The Court finds that this evidence is sufficient to
demonstrate a genuine issue of material fact as to whether Lynch’s alleged attack was foreseeable
to FFPO.
FFPO cites Cote v. City of Shreveport to support its argument that FFPO was not on notice
of Lynch’s potential for violence.133 In that case, the Louisiana Second Circuit Court of Appeal
affirmed a district court’s order granting summary judgment in favor of the employer because there
was “absolutely nothing in the record to suggest that the [employer] had any prior knowledge that
[the employee] had a propensity to act violently.”134 However, the appellate court emphasized that
129 Rec. Doc. 265 at 3.; Rec. Doc 265–3 at 8.
130 Rec. Doc. 244–1. However, FFPO’s statement of uncontested facts notes that this conduct was
“[u]nbeknownst to FFPO.” Rec. Doc 244–2 at 9.
131 Rec. Doc. 248–3 at 7.
132 Id. at 6–8.
133 Rec. Doc. 244–1 at 5.
134 Cote v. City of Shreveport, 46,571 (La. App. 2 Cir. 9/21/11); 73 So. 3d 435, 439.
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the employer had no record of any complaint’s made against the employee.135 Here, on the other
hand, as documented above, Davenport has pointed to evidence in the record demonstrating that
FFPO was aware of complaints about Lynch’s inappropriate conduct. Therefore, the Court finds
that there is a genuine dispute of material fact as to whether Lynch’s allegedly violent behavior
was foreseeable to FFPO. Accordingly, FFPO is not entitled to summary judgment on this basis.
Next, Defendants assert they are entitled to summary judgment because Davenport cannot
demonstrate that FFPO failed to act reasonably.136 FFPO points out that its company policy
prohibited violence in the workplace, and that FFPO terminated both Lynch and Davenport for
violation of this policy.137 FFPO provides evidence that it conducted a background check on Lynch
pursuant to its regular screening process.138 Furthermore, FFPO points to other evidence in the
record that shows it took steps to address Davenport’s complaints about Lynch. In response to
Davenport’s complaints regarding Lynch’s eye rolling, name calling, and failure to perform work
tasks, FFPO held a department-wide meeting to address interpersonal issues in the department.139
During the meeting, Senior Director of Procurement Brian Roberts stated that HR had received
complaints about employee behavior and that behavior “must stop.”140 Furthermore, FFPO’s HR
135 Id. at 437.
136 FFPO cites to various exhibits and depositions in support of its motion. However, FFPO has not provided
the Court with all of the depositions. FFPO states that it “has not yet received the transcript for this deposition but will
supplement this filing with the cited pages upon receipt.” Rec. Doc. 244–1 at 12. The Court will assume that FFPO is
accurately conveying the contents of these depositions.
137 Rec. Doc. 244–1.
138 Id.; Rec. Doc. Doc. 248–4 at 5.
139 Rec. Doc. 244–1 at 11–12.
140 Id. at 12.
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Department complied with Davenport’s request to conduct a team building exercise,141 and hired
a company to lead off-site exercises for employees in the Procurement Department.142 FFPO also
held another department meeting where the CFO advised the department to treat one another with
respect.143 After the White Board Incident, an HR employee began an investigation and instructed
Lynch to report to HR for questioning.144 Based on these facts, FFPO contends that it is entitled to
summary judgment on Davenport’s negligence claim because it acted reasonably.
Davenport does not contest that FFPO took most of these actions. However, Davenport
does assert that there is “no documentation” that FFPO performed a background check.145
Nevertheless, Davenport argues that HR took no action after Perez emailed other FFPO employees
about an incident between Lynch and Davenport stating “Need HR help. Let’s discuss.”146
Davenport then compares FFPO’s response to Davenport’s complaints to its handling of Lynch’s
complaints. Davenport asserts that HR performed formal investigations based on Lynch’s
complaints, but “did nothing in response to Davenport’s complaints.”147 However, Davenport does
not dispute that FFPO held meetings or conducted a team building exercise, as discussed above.
Although FFPO has offered undisputed evidence of numerous actions it took in response
to complaints about workplace conduct, the Court cannot find, as a matter of law, that FFPO was
141 Id.; Rec. Doc. 248–3 at 6–7.
142 Rec. Doc. 255–1 at 12; Rec. Doc 248–3 at 21–22.
143 Rec. Doc. 244–1 at 12; Rec. Doc 248–5 at 29.
144 Rec. Doc. 244–1 at 12.
145 Rec. Doc. 265 at 2. However, FFPO has since filed the background check into the record under seal. Rec.
Docs. 284, 290.
146 Rec. Doc. 265 at 3.
147 Id. at 10.
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not negligent. The Fifth Circuit has explained that “the use of summary judgment is rarely
appropriate in negligence ... cases, even where the material facts are not disputed.”!4* That is
because “it is usually for the jury to decide whether the conduct in question meets the reasonable
man standard.” Thus, despite the undisputed evidence regarding FFPO’s actions, whether or not
these steps were reasonable under the circumstances is ultimately a question for the jury to decide.
Accordingly, the motion for summary judgment must be denied.
V. Conclusion
Considering the foregoing,
IT IS HEREBY ORDERED that FFPO’s “Motion for Partial Summary Judgment
Dismissing Negligence Claim of Co-Defendant Stacie Davenport”!*° is DENIED.
NEW ORLEANS, LOUISIANA, this 8th day of March, 2022.
Deceit obuvelt 0.
NANNETTE JOAAVETTE BROWN □□□
CHIEF JUDGE
UNITED STATES DISTRICT COURT
'48 Davidson y. Stanadyne, Inc., 718 F.2d 1334, 1338-39 (5th Cir. 1983).
49 Matthews v. Ashland Chemical, Inc., 703 F.2d 921, 925 (5th Cir. 1983).
1 Rec. Doc. 244.
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