# Flettrich v. Chevron Oronite Company L.L.C.

> District Court, E.D. Louisiana · May 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10187760

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 3, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10187760

## How later opinions describe it (automated extraction)

- holding that the “mere determination that removal was improper” does not require a district court to award attorney's fees

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DAVID FLETTRICH CIVIL ACTION

VERSUS NO. 21-1986

CHEVRON ORONITE COMPANY, SECTION “B”(2)
L.L.C., ET AL
ORDER AND REASONS
Before the Court are defendants’ notice of removal (Rec. Doc.
1), plaintiff’s motion to remand (Rec. Doc. 17), defendants’
memorandum in opposition (Rec. Doc. 24), and related contentions
about an alleged improper joinder of a nondiverse defendant. For
the following reasons,
IT IS ORDERED that defendant Jerry Ockmand is dismissed from
this litigation because he was improperly joined. Ockmand’s
previously filed motions to dismiss (Rec. Docs. 14 and 27) are
Dismissed as Moot; and
IT IS FURTHER ORDERED that plaintiff’s opposed motion to
remand (Rec. Doc. 17) is DENIED.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff David Flettrich (“Plaintiff” or “Flettrich”) was
employed at Chevron Oronite – Oak Point (“Chevron” or “Defendant”),
located in Plaquemines Parish, Louisiana from November 2007 until
October 15, 2020. Rec. Doc. 1-3 (Petition for Damages). On the
latter date, Chevron allegedly wrongfully terminated plaintiff
based on false accusations made by his co-worker, Jerry Ockmand
(“Ockmand”). Id.
In March or April 2020, plaintiff and Ockmand’s supervisor,

Fallon Martin, informed their department that Chevron’s
maintenance department was being reduced from eight (8) team
leaders to six (6). Id. During that same time, Chevron’s vice-
president of Human Resources, Rhonda Morris, informed Chevron
employees that the company was actively working to diversify its
workforce. Id. According to plaintiff, all the employees took
that message to mean that “Chevron was in the process of reducing
the number of white team leaders like plaintiff and Ockamnd and
replacing them with African Americans and other minorities.” Id.
Sometime after being notified of the departmental cutbacks,
Ockmand allegedly filed a false complaint against plaintiff,
stating Flettrich used a racial slur – the N-word – while at work.

Rec. Doc. 1-3. Ockmand also allegedly forged plaintiff’s signature
on the complaint. Id. Plaintiff asserts Ockmand filed the false
complaint because he realized his job was in jeopardy with the
pending staff reduction and wanted to secure his position. Id.
Approximately four months after Ockmand allegedly filed the
fraudulent complaint, plaintiff received a phone call from
Chevron’s Human Resources Department advising him that they would
be looking into the complaint’s allegations. Id.
On October 15, 2020, plaintiff was informed that his
employment with Chevron was terminated, and he was escorted off
the property. Id. On that date, Chevron gave a document entitled

“Record of Discussion,” which listed Chevron’s reason for
terminating his employment. Rec. Doc. 1-3. The document stated,
“the Company substantiated that on more than one occasion and
according to more than one witness [plaintiff] used a racial slur
(the N-word) to describe a group of contract workers.” Id.
Chevron’s Human Resources department refused to disclose to
plaintiff the names of the individuals who accused him of using
racial slurs. Id. After his termination, Flettrich claims to have
suffered severe economic and emotional harm that led him to seek
professional medical care from psychiatrist Phuong Nguyen, MD. Id.
Plaintiff filed a charge with the Equal Employment
Opportunity Commission (“EEOC”), alleging employment

discrimination, and received his right to sue letter from the EEOC
on June 15, 2021. Rec. Doc. 1-3. On or about October 5, 2021,
plaintiff filed a petition for damages in the 25th Judicial
District Court for the Parish of Plaquemines, alleging several
tort claims and fraud against both Chevron and Ockmand, as well as
an additional employment discrimination claim against Chevron. Id.
On October 28, 2021, defendants removed the case to federal
court, asserting federal question jurisdiction and diversity
jurisdiction. Rec. Doc. 1. Defendants asserted the Court had
subject-matter jurisdiction pursuant to § 1331 because plaintiff’s
well-pleaded complaint included a federal cause of action for race
discrimination. However, plaintiff did not specifically allege a

federal cause of action, only a state cause of action under the
Louisiana Employment Discrimination Statute (“LEDL”). Id.
Defendants further argued the Court had jurisdiction pursuant to
§ 1332 because the amount in controversy exceeds the jurisdictional
amount, and excluding defendant Ockmand, there is complete
diversity between Chevron and Flettrich. Id. Defendants argue that
Ockmand’s status as a Louisiana citizen must be ignored given that
he was fraudulently joined to defeat diversity. Id. According to
defendants, there is no reasonable basis to predict that plaintiff
might recover against Ockmand. Id. Therefore, Ockmand must be
dismissed, and the Court maintain diversity jurisdiction.
On November 24, 2021, plaintiff filed a motion to remand this

litigation to state court, arguing this Court lacks subject matter
jurisdiction. Rec. Doc. 17. Defendants filed an opposition
memorandum on December 14, 2021. Rec. Doc. 24.
II. LAW AND ANALYSIS
A. LEGAL STANDARD
Federal courts are courts of limited jurisdiction. Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002). A defendant may remove a state court action to federal court
if the federal court has original jurisdiction over the action. 28
U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S.
28, 34 (2002). The removing party bears the burden of demonstrating
the existence of federal jurisdiction. See Allen v. R&H Oil & Gas
Co., 63 F.3d 1326, 1335 (5th Cir. 1995). In assessing whether

removal was appropriate, the Court is guided by the principle,
that “removal statute[s] should be strictly construed in favor of
remand.” Manguno, 276 F.3d at 723. Furthermore, remand is
appropriate if the Court lacks subject matter jurisdiction, and
“doubts regarding whether removal jurisdiction is proper should be
resolved against federal jurisdiction.” Acuna v. Brown & Root Inc.,
200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp.,
855 F.2d 1160, 1164 (5th Cir. 1988)).
Defendants raised both Diversity jurisdiction and Federal
Question jurisdiction as the basis for removal.
B. LACK OF SUBJECT MATTER JURISDICTION
1. Federal Question

Under 28 U.S.C. § 1331, a federal court has original
jurisdiction over cases “arising under the Constitution, laws, or
treaties of the United States.” To determine whether a claim arises
under federal law, the court examines the “well pleaded”
allegations of the complaint and “ignore[s] potential defenses.”
Beneficial Nat'l. Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058,
156 L.Ed.2d 1 (2003). Pursuant to this rule, “federal jurisdiction
exists only when a federal question is presented on the face of
the plaintiff's properly pleaded complaint.” Yancy v. Standard
Mortg. Corp., No. CV 16-16276, 2017 WL 1837806, *2 (E.D. La. May
5, 2017); Terrebonne Homecare, Inc. v. SMA Health Plan, Inc., 271
F.3d 186, 188 (5th Cir.2001) (quoting Caterpillar Inc. v. Williams,

482 U.S. 386, 392 (1987)). A federal question is present “when the
plaintiff's statement of his own cause of action shows that it is
based upon [federal law].” Yancy, 2017 WL 1837806 at *2.
Furthermore, when a plaintiff has a choice between federal and
state law claims, he “may proceed in state court on the exclusive
basis of state law, thus defeating the defendant's opportunity to
remove.” Manzella v. United Parcel Serv. Inc., No. CIV.A. 02-1800,
2002 WL 31040170 (E.D. La. Sept. 10, 2002); Medina v. Ramsey Steel
Co., 238 F.3d 674, 680 (5th Cir.2001). Because a plaintiff is “the
master of [his] complaint,” the “determination that a cause of
action presents a federal question depends upon the allegations of
the plaintiff's well-pleaded complaint.” Medina v. Ramsey Steel
Co., Inc., 238 F.3d 674, 680 (5th Cir. 2001).

In Manzella v. United Parcel Serv. Inc., this Court held that
the plaintiff’s petition failed to allege a federal cause of action
under Title VII; thereby, remanding the case to state court. No.
CIV.A. 02-1800, 2002 WL 31040170 (E.D. La. Sept. 10, 2002). Like
the case at bar, plaintiff’s petition did not have an express
reference to Title VII. Id. at *3. Nevertheless, the defendants
argued that the petition stated a claim under Title VII because 1)
the petition asked for punitive damages, which are available under
Title VII but not under the Louisiana Employment Discrimination
Law, and 2) the plaintiff filed a Charge with the EEOC and received
a Right to Sue letter. Id. After review, the Court held that those

facts were “insufficient to infer a Title VII cause of action from
plaintiffs’ petition.” Id. The Court then went on to explain that
those facts present ambiguities and don’t explicitly point to
plaintiff asserting federal claims. Id. The Court also noted that
the case law is “replete” with decisions granting remand even when
the complaints “contained more substantial references to Title VII
than in the instant case.” Manzella, 2002 WL 31040170 at *3.
By contrast in Hairston v. Sun Belt Conf. Inc., this Court
ruled that plaintiff Patrick Hairston’s petition properly stated
a federal cause of action under Title VII. No. CV 21-2088, 2021 WL
5937165 (E.D. La. Dec. 16, 2021). Distinguishing this case from
Manzella, the Court reasoned that the facts of this case were
different from Manzella because here the plaintiff didn’t merely

state that he filed an EEOC charge and received his right to sue
letter. Id. at *5-6. Instead, plaintiff went a step further and
incorporated his EEOC charge and his right to sue letter into his
petition by attaching both documents as exhibits. Id. “Because
Plaintiff attached the EEOC Charge asserting federal claims to the
Complaint, it became a part of his pleading for all purposes.” Id.
at *6. Hairston, 2021 WL 5937165 at *6. Accordingly, the Court
found that removal based on federal question jurisdiction was
proper. Id.
Likewise, in Davoodi v. Austin Independent School Dist., the

Fifth Circuit held that removal was proper under similar facts as
Hairston. 755 F.3d 307 (5th Cir. 2014). Davoodi filed a
discrimination suit against his employer in Texas state court. Id.
at 308. The complaint not only referenced that he filed an EEOC
charge, but he also “attached and fully incorporated” that charge
to the complaint. Id. Davoodi referenced the EEOC charge in the
facts section of the complaint, referred to it in describing the
retaliation claim, and attached the EEOC charge as an exhibit. Id.
Because the EEOC charge alleged discrimination under Title VII,
that claim became incorporated into his complaint for all purposes.
Id. at 310; see also Fed. R. Civ. Proc. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the

pleading for all purposes.”)
In the instant case, the petition contains no express
references to Title VII or any other specific federal laws. Like
Manzella, defendants here cite two facts to support their argument
that Flettrich has stated a claim under federal law:(1) the
petition's language stating plaintiff is asserting “any other
causes of action that are applicable to the facts described
herein,” and, (2) Flettrich’s filing of a charge with the Equal
Employment Opportunity Commission (“EEOC”) and his receipt of a
Right to Sue letter. First and foremost, the Court finds the above
cited language to be ambiguous and insufficient to infer a federal
cause of action from plaintiffs' petition.

Plaintiff purposefully pled only state law causes of action.
The addition of the statement “any other causes of action that are
applicable to the facts described herein,” could just as easily be
read to include other state law claims rather than federal.
Defendants argue that the addition of this vague statement opened
the door to federal claims. Although this statement may be
construed to allow the addition of federal claims, on its own the
statement is ambiguous, and therefore must be construed against
removal. Manguno, 276 F.3d at 723.
Second, unlike the plaintiffs in Davoodi and Hairston,
Flettrich did not attach and fully incorporate the EEOC charge
into the complaint. While plaintiff referenced the filing of an

EEOC charge and receipt of a Right to Sue letter, he did not attach
those documents as exhibits or assert a federal claim. See Coleman
Crump v. Baton Rouge City Constables Off., No. CV 17-257-JJB-EWD,
2017 WL 4678487 (M.D. La. Sept. 22, 2017), report and
recommendation adopted sub nom. Crump v. Baton Rouge City
Constables Off., No. CV 17-257-JJB-EWD, 2017 WL 4678223 (M.D. La.
Oct. 17, 2017) (rejecting an argument that an EEOC charge raised
a federal question when plaintiff did not attach or otherwise
attempt to incorporate his charge into the pleadings.). At most,
the mere reference to the EEOC proceedings could arguably be proof
in support of the specifically pled state claims. Without more,
such an attachment and incorporation, the fact that plaintiff

merely filed an EEOC charge is not enough for the Court to infer
plaintiff raised federal causes of action in this case. As a
result, removal based on federal question jurisdiction was not
proper.
2. Diversity Jurisdiction
For diversity jurisdiction to exist, all parties must be
completely diverse. McLaughlin v. Miss. Power Co., 376 F.3d 344,
353 (5th Cir. 2004). This means that “all persons on one side of
the controversy be citizens of different states than all persons
on the other side.” Id. (citing Harrison v. Prather, 404 F.2d 267,
272 (5th Cir. 1968)). Importantly, federal courts “must presume
that a suit lies outside [its] limited jurisdiction.” Howery v.
Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Due to this

presumption against federal jurisdiction, the removal statute is
to be “strictly construed, and any doubt about the propriety of
removal must be resolved in favor of remand.” Gasch v. Hartford
Acc. & Indem. Co., 491 F.3d 278, 281–82 (5th Cir. 2007).
Additionally, the Court must “resolve any contested issues of
material fact, and any ambiguity or uncertainty in the controlling
state law” in plaintiff's favor. Morgan v. Chubb Lloyds Ins. Co.
of Tex., No. 4:21-CV-00100-P, 2021 WL 2102065, at *1 (N.D. Tex.
May 25, 2021) (Pittman, J.) (quoting Griggs v. State Farm Lloyds,
181 F.3d 694, 699 (5th Cir. 1999)).
The removal was also based on diversity jurisdiction. It is

undisputed that Chevron and plaintiff are diverse. However,
Chevron argues the nondiverse defendant Ockmand was improperly
joined. Rec. Doc. 24. According to defendants, there is no
reasonable basis for recovery against Ockmand under any theory.
Id. Plaintiff argues Ockmand was not fraudulently joined because
a Louisiana state court might impose liability on him under the
facts of this case. Rec. Doc. 17. Additionally, plaintiff contends
that he has properly pled various state causes of action against
Ockmand, including claims for defamation, intentional infliction
of emotional distress, negligent infliction of emotional distress,
and fraud.
Ockmand was Improperly Joined and Diversity Jurisdiction Exists
In the seminal case Cavallini v. State Farm Mut. Auto Ins.
Co., the Fifth Circuit stated, in pertinent part,

The burden of proving a fraudulent joinder is a heavy
one. The removing party must prove that there is
absolutely no possibility that the plaintiff will be
able to establish a cause of action against the in-state
defendant in state court, or that there has been outright
fraud in the plaintiff's pleading of jurisdictional
facts. Because no one disputes that the Cavallinis and
Cunningham are Texas residents, our sole concern is
whether there is a possibility that Cavallinis ha[ve]
set forth a valid cause of action against Cunningham. We
evaluate all of the factual allegations in the
plaintiff's state court pleadings in the light most
favorable to the plaintiff, resolving all contested
issues of substantive fact in favor of the plaintiff,
and then examine relevant state law and resolve all
uncertainties in favor of the non-removing party.

44 F.3d 256, 259 (5th Cir.1995) (quotations omitted); accord Griggs
v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.1999). This
Circuit has also endorsed the use of summary judgment type
procedures for reviewing fraudulent joinder claims. See Griggs,
181 F.3d at 700 (“Thus, while we have frequently cautioned the
district courts against pre-trying a case to determine removal
jurisdiction, a federal court may consider summary judgment-type
evidence such as affidavits and deposition testimony when
reviewing a fraudulent joinder claim.”)
Having considered plaintiff’s petition, exhibit, and
affidavit in the light most favorable to him, the Court finds that
there is no possibility that Flettrich will be able to proceed
against Ockmand under asserted state theories of recovery.
Defamation
Under Louisiana law, “[f]our elements are necessary to
establish a claim for defamation: (1) a false and defamatory
statement concerning another; (2) an unprivileged publication to
a third party; (3) fault (negligence or greater) on the part of
the publisher; and (4) resulting injury.” Kennedy v. Sheriff of E.
Baton Rouge, 935 So. 2d 669, 674 (La. 2006). “In other words, a
plaintiff must prove that the defendant, with actual malice or
other fault, published a false statement with defamatory words
which caused plaintiff damages.” Fitzgerald v. Tucker, 737 So. 2d
706, 715-16 (La. 1999) (internal quotation omitted). Falsity,
malice (or fault), and injury may be presumed if “a plaintiff

proves publication of words that are defamatory per se,” although
this presumption is rebuttable. Kennedy, 935 So. 3d at 675.
In Russell v. Chevron U.S.A., Inc., the plaintiff Cathy
Russell sued her former employer, Chevron, alleging state law
claims for fraud, defamation, detrimental reliance, and
intentional infliction of emotional distress. No. CV 18-4157, 2018
WL 4816151 (E.D. La. Oct. 4, 2018). Subsequently, Chevron filed a
motion to dismiss all of plaintiff’s claims. Id. Concerning her
defamation claim. Plaintiff alleged that “employees of defendant
... made false, misleading, and defamatory statements to third
parties” and other employees about her. Id. at *4. These alleged
defamatory statements were that plaintiff “acted

unprofessionally,” “violated company policy,” “failed to perform
her job duties,” “committed a dishonest act,” “had a drinking
problem,” and “lost custody of her son.” Id. As a result of these
alleged defamatory statements, plaintiff claimed she sustained
significant damages including mental anguish and emotional
distress. Id.
After review, the Court ruled to dismiss plaintiff’s
defamation claim, finding that she failed to sufficiently allege
her claim. Russell, 2018 WL 4816151 at *4. In her complaint,
plaintiff stated that defendant's employees made the alleged
defamatory statements about her to other coworkers “in the course
and scope of their employment.” Id. Given this admission, the Court

noted that the claim had to be dismissed to the extent it is based
upon allegedly defamatory statements made by one employee of
defendant to another. Id. The Court also noted that this decision
is consistent with other Fifth Circuit and Louisiana court cases
finding statements made by employees to their coworkers in the
course and scope of their employment cannot form the basis of a
defamation claim because such statements are not considered
“publicized.” Id.
Here, Defendants assert that plaintiff’s defamation claim
must be dismissed because internal corporate communications are
not publications. Defendants argue that because plaintiff admitted
in his complaint that the alleged intra-corporate communication

was within the course and scope of Ockmand’s employment, his
alleged fraudulent communication to Chevron executives cannot be
the basis of plaintiff’s defamation claim. Upon review, the court
finds that defendants have satisfied their burden of proof on this
claim.
Plaintiff’s defamation claim against Ockmand fails because he
cannot satisfy all the required elements. Specifically, plaintiff
has failed to show that the alleged defamatory statement was
published to a third-party. Instead, plaintiff has only pled that
Ockmand made the alleged false statement to their employer,
Chevron. This is a fatal defect because, “[i]n Louisiana,
statements between employees, made within the course and scope of

their employment, are not statements communicated or publicized to
third persons for the purposes of a defamation claim.” Williams v.
United Parcel Serv., Inc., 757 F. App'x 342, 345 (5th Cir. 2018)
(citing Commercial Union Ins. Co. v. Melikyan, 424 So.2d 1114,
1115 (La. Ct. App. 1982)).
Furthermore, Flettrich does not dispute that Ockmand’s
alleged defamatory statement to Chevron was made within the course
and scope of his employment. Rather, plaintiff has stated just the
opposite in his motion to remand. Rec. Doc. 17 at p. 17 (“These
false statements which were made by Ockmand while he was in the
course and scope of his employment.”) Like the plaintiff in Russell
who could not properly make out her defamation claim, Flettrich

likewise cannot base his claim on the statements Ockmand made to
Chevron. Accordingly, plaintiff cannot succeed against Ockmand on
this claim.
Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional
distress (“IIED”), a plaintiff must allege that: (1) the
defendant's conduct was extreme and outrageous; (2) the emotional
distress suffered by the plaintiff was severe; and (3) the
defendant intended to inflict severe emotional distress, or knew
that such distress would be certain or substantially certain to
result from his conduct. Brackens v. Stericycle, Inc., 829 F. App'x
17, 21 (5th Cir. 2020); Martin v. Am. Midstream Partners, LP, 386
F. Supp. 3d 733 (E.D. La. 2019); White v. Monsanto Co., 585 So.2d

1205, 1209 (La. 1991). To satisfy the first element, the
defendant's conduct must “go beyond all possible bounds of decency,
and ... be regarded as atrocious and utterly intolerable in a
civilized community.” White, 585 So.2d at 1209. Such conduct “does
not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. Id. Persons must
necessarily be expected to be hardened to a certain amount of rough
language, and to occasional acts that are definitely inconsiderate
and unkind.” Id.
Recognition of a cause of action in a workplace setting is
“usually limited to cases involving a pattern of deliberate,
repeated harassment over a period of time.” See id.; see also
Bustamento v. Tucker, 607 So.2d 532, 538 (La.1992) (explaining

that “this has been characterized as a sliding scale approach under
which even relatively ‘mild’ harassment may become tortious if
continued over a substantial period of time”). Moreover, cases
arising in the workplace are limited to situations where the
distress is “more than a reasonable person could be expected to
endure” and the offending conduct is “intended or calculated to
cause severe emotional distress.” See Nicholas v. Allstate Ins.
Co., 765 So.2d 1017, 1027 (La.2000).
Here, the Court finds that the allegations in this case,

considered in the light most favorable to the plaintiff, simply do
not rise to the high level of “extreme and outrageous” conduct,
over a sufficient period of time, to constitute a tort under
existing Louisiana law. Not only did plaintiff fail to allege a
pattern of deliberate, repeated harassment, but he also failed to
show that he suffered severe emotional distress. First, the conduct
plaintiff complains of did not last weeks, months, or years;
instead, plaintiff complains of a single incident. Compare, e.g.,
Bustamento, 607 So.2d at 534 (involving almost daily verbal and
sexual harassment, over two-year period); with Wright v. Otis Eng'g
Corp., 643 So.2d 484, 487 (La.App. 3d Cir.1994) (involving five
years of harassment). Moreover, while plaintiff characterizes the
offending conduct as a “fabricated defamatory per se statement”
Ockmand allegedly made to Chevron executives, the Louisiana Supreme

Court has expressly held that liability for intentional infliction
of emotional distress “does not extend to mere insults [or]
indignities” and that “persons must necessarily be expected to be
hardened to ... occasional acts that are definitely inconsiderate
and unkind.” See White, 585 So.2d at 1205.
The alleged conduct at issue if proven is offensive and should
be condemned as such. However, the Fifth Circuit has rejected
claims for intentional infliction of emotional distress for acts
that are more offensive than the case at bar. See Baker v. FedEx
Ground Package Sys. Inc., 278 F. App'x 322, 323–24 & n.1, 329 (5th

Cir. 2008) (affirming the dismissal of an intentional infliction
of emotional distress claim under Louisiana law where the plaintiff
alleged that her supervisor made racist remarks to her); Charles
v. JetBlue Airways Corp., No. 08-40, 2009 WL 273206, at *11–12
(E.D. La. Jan. 26, 2009) (reviewing analogous Fifth Circuit cases
and holding that “it is apparent that Plaintiff's allegations that
she was the subject of racial slurs from her fellow employees does
not amount to the level of ‘extreme and outrageous’ conduct that
can allow Plaintiff to recover for intentional infliction of
emotional distress”). Following this line of settled case law, it
is apparent that plaintiff's allegation that Ockmand made a
fraudulent report about plaintiff’s use of a racial slur does not

amount to the level of “extreme and outrageous” conduct that can
allow recovery for intentional infliction of emotional distress.
Next, plaintiff seeks recovery due to “mental anguish,
humiliation, and damage to reputation”. However, he failed to
elaborate on how his damages qualify as “severe emotional
distress.” Subsequently, the court granted plaintiff leave to
supplement his motion to remand with a certified medical record
written by Dr. Phuong Nguyen. The medical record indicates that
plaintiff suffered from “feelings of despair, anger, and guilt.”
Taking this account in the light most favorable to plaintiff,
plaintiff’s emotional distress is not shown to be severe. See
Gressett v. Sw. Airlines Co., 216 F. Supp. 3d 743 (E.D. La. 2016)

(“[r]ecovery on an IIED claim under Louisiana law requires a level
of distress beyond a reasonable person's endurance.) See also Pate
v. Pontchartrain Partners, LLC, No. 13–6366, 2014 WL 5810521, at
*4 (E.D. La. Nov. 7, 2014)(holding that humiliation and dismay
over employment termination did not meet severity requirement);
Deville v. Robinson, 132 So.3d 1277, 1281 (La. App. 3 Cir. 2/26/14)
(dismissing IIED claim when plaintiff suffered series of anxiety
attacks); Pate v. Pontchartrain Partners, LLC, No. CIV.A. 13-6366,
2014 WL 5810521, *4 (E.D. La. Nov. 7, 2014) (stating some symptoms
of severe emotional distress include “neuroses, psychoses, chronic
depression, phobia, and shock.”).
The medical report also stated that plaintiff referenced

previous thoughts of suicide, but he is reportedly “over that now.”
That level of distress could possibly satisfy the threshold to
qualify as severe. However, because plaintiff has not shown a
pattern of deliberate, repeated harassment over a period of time
or that Ockmand’s alleged act was extreme and outrageous,
plaintiff’s IIED claim still fails. Additionally, given the
alleged tortious conduct occurred in a workplace setting,
plaintiff’s claim for mental anguish would nevertheless not be
actionable under these facts. See White, 585 So.2d at 1210
(“conflict in a pressure-packed work environment, although
calculated to cause some degree of mental anguish, is not
ordinarily actionable.”); Johnson v. LaShip, LLC, No. CV 16-570,

2018 WL 2735486 (E.D. La. June 7, 2018) (same).
Even assuming arguendo that plaintiff had properly alleged an
IIED cause of action, the claim would still fail because Ockmand’s
alleged conduct was sufficiently employment related to fall under
the doctrine of vicarious liability. The principle of vicarious
liability or respondeat superior is codified in Louisiana Civil
Code article 2320. This article provides that an employer is liable
for the tortious acts of its employees that are performed “in the
exercise of the functions in which they are employed.” La. Civ.
Code Ann. art. 2320. Thus, the two issues for the Court to address
is whether: (1) plaintiff properly alleged tortious conduct
against the individual defendants; and (2) whether these alleged

actions were sufficiently employment-related that vicarious
liability should attach. See Olmeda v. Cameron Int'l Corp., 139 F.
Supp. 3d 816 (E.D. La. 2015)
The Louisiana Supreme Court has outlined the parameters of
the test for vicarious liability as follows:
While the course of employment test refers to time and
place, the scope of employment test examines the
employment-related risk of injury. The inquiry requires
the trier of fact to determine whether the employee's
tortious conduct was “so closely connected in time,
place and causation to his employment-duties as to be
regarded a risk of harm fairly attributable to the
employer's business, as compared with conduct motivated
by purely personal considerations entirely extraneous to
the employer's interests.”

Russell v. Noullet, 721 So.2d 868, 871 (La.1998) (quoting LeBrane
v. Lewis, 292 So.2d 216, 218 (La.1974)). In LeBrane, the Louisiana
Supreme Court identified four factors to be considered in
determining vicarious liability: (1) whether the tortious act was
primarily employment rooted; (2) whether the tortious act was
reasonably incidental to the performance of the employee's duties;
(3) whether the act occurred on the employer's premises; and (4)
whether it occurred during the hours of employment. LeBrane, 292
So.2d at 218; see also Olmeda v. Cameron Int'l Corp., 139 F. Supp.
3d 816 (E.D. La. 2015); Baumeister v. Plunkett, 673 So.2d 994, 996
(La.1996). It is not necessary that all four LeBrane factors be
met to find vicarious liability. See Bates v. Caruso, 881 So.2d
758, 762 (La.Ct.App.2004).
While the complaint does not mention when and where Ockmand’s
alleged statements were made, the Court can look to plaintiff’s
allegations for support that Ockmand’s alleged act was
sufficiently employment related. Specifically, the fact that
plaintiff admitted that Ockmand’s alleged act of providing a false
statement was done while in the course and scope of his employment
supports the conclusion that this claim would fall under vicarious
liability. Accordingly, the claim for intentional infliction of
emotional distress is not actionable against Ockmand under the
circumstances.

Negligent Infliction of Emotional Distress
The Louisiana Workers’ Compensation Act (“LWCA”) provides the
exclusive remedy for personal injuries caused by an employer's or
coworker's negligence when those injuries arise out of and in the
course of employment. La. R.S. 23:1031, 1032; Martin v. Am.
Midstream Partners, LP, 386 F. Supp. 3d 733 (E.D. La. 2019). As a
result, courts have consistently held that negligent infliction of
emotional distress claims against employers and their employees
are barred by the LWCA's exclusivity provision. See, e.g., Martin
v. Am. Midstream Partners, LP, 386 F. Supp. 3d 733, 742 (E.D. La.
2019); Patton v. Jacobs Eng'g Grp., Inc., No. 15-123, 2015 WL
3964719, at *3 (M.D. La. June 29, 2015); Gonzales v. T. Baker
Smith, LLC, No. 13-644, 2014 WL 905281, at *3 (M.D. La. Mar. 7,

2014).
Plaintiff admitted that he is seeking damages resulting from
Ockmand’s alleged negligent infliction of emotional distress.
Plaintiff further asserted that both he and Ockmand were co-workers
at Chevron’s facility and that the act forming the basis of his
negligence claim was done during the course and scope of Ockmand’s
employment with Chevron. Therefore, plaintiff’s claim is barred by
the exclusivity provision of the Louisiana Workers’ Compensation
Act.
Fraudulent Misrepresentation

Louisiana law defines fraud as “a misrepresentation or a
suppression of the truth made with the intention either to obtain
an unjust advantage for one party or to cause a loss or
inconvenience to the other.” La. Civ. Code art. 1953. The elements
of a Louisiana fraud and intentional misrepresentation claim are:
1) a misrepresentation of a material fact; 2) made with intent to
deceive; and 3) causing justifiable reliance with resultant
injury. Kadlec Med. Ctr. v. Lakeview Anesthesia Assoc., 527 F.3d
412, 418 (5th Cir. 2008); Russell v. Chevron U.S.A., Inc., No. CV
18-4157, 2018 WL 4816151 (E.D. La. Oct. 4, 2018).
Plaintiff's state law fraud claim is subject to Federal Rule
of Civil Procedure 9(b), which imposes a heightened pleading
requirement. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339

(5th Cir. 2008). Under Rule 9(b), the plaintiff “must state with
particularity the circumstances constituting fraud or mistake.”
Fed. R. Civ. P. 9(b). The Fifth Circuit “interprets Rule 9(b)
strictly, requiring the plaintiff to specify the statements
contended to be fraudulent, identify the speaker, state when and
where the statements were made, and explain why the statements
were fraudulent.” Flaherty & Crumrine Preferred Income Fund, Inc.
v. TXU Corp., 565 F.3d 200, 207 (5th Cir. 2009). In other words,
“Rule 9(b) requires ‘the who, what, when, where, and how’ to be
laid out.” Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d
719, 723 (5th Cir. 2003) (quoting Tel-Phonic Servs., Inc. v. TBS
Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992)). Finally,

“although scienter may be ‘averred generally,’ ... pleading
scienter requires more than a simple allegation that a defendant
had fraudulent intent. To plead scienter adequately, a plaintiff
must set forth specific facts that support an inference of fraud.”
Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)
(quoting Fed. R. Civ. P. 9(b)).
Flettrich has satisfied the Rule 9(b) pleading standard
because he has alleged with particularity the specifics of the
fraud Ockmand allegedly perpetrated and explained how he was harmed
by the alleged misrepresentation. See Benchmark Elecs., Inc. v.
J.M. Huber Corp., 343 F.3d 719, 723 (5th Cir.), opinion modified
on denial of reh'g, 355 F.3d 356 (5th Cir. 2003) (“Rule 9(b)

requires the who, what, when, where, and how to be laid out.”)
Nonetheless, the claim must still be dismissed given its basis on
third-party reliance, which is not legally cognizable under
Louisiana law. See Currier v. Entergy Servs., Inc., No. 11-2208,
2014 WL 1093687, at *8-9 & n.17 (E.D. La. Mar. 14, 2014)
(expressing skepticism that a fraud claim alleging third-party
reliance is legally viable under Louisiana law); Schaumburg v.
State Farm Mut. Auto Ins. Co., 421 F. App'x 434, 442 (5th Cir.
2011) (“Louisiana jurisprudence indicates that the following are
the elements of the tort of fraud ... 3. reasonable or justifiable
reliance by the plaintiff ...”)
In Wright v. United Parcel Serv., Inc. (Ohio), the Western

District of Louisiana court dismissed a fraud claim, finding it
could not stand because plaintiff did not provide any facts that
defendants made misrepresentations to her, which she then
reasonably relied on. No. 3:20-CV-00098, 2020 WL 1909973 (W.D. La.
Apr. 2, 2020), report and recommendation adopted, No. 3:20-CV-
0098, 2020 WL 1906843 (W.D. La. Apr. 17, 2020). Likewise, in R.
Christopher Goodwin & Assocs., Inc. v. SEARCH, Inc., this Court
essentially held there was no right under Louisiana law to bring
a fraud claim based on plaintiff’s admission that
misrepresentations were made to third-parties and not to
plaintiff. No. CV 19-11290, 2019 WL 5576834 at *5 (E.D. La. Oct.

29, 2019).
Flettrich does not set forth any facts that Ockmand made
fraudulent misrepresentations to him, which in turn caused his
reasonable reliance. On the contrary, he alleges that Ockmand
“knowingly forged a document and made false, defamatory statements
about him [to Chevron] for the purpose of inducing Chevron to
terminate [his] employment and secure Ockmand’s own position.”
Rec. Doc. 17 at p. 12. Because plaintiff has not alleged that he
was the person who reasonably relied on the misrepresentation, the
fraud claim against Ockmand cannot stand.
Accordingly, defendants have established fraudulent joinder
and Ockmand is hereby dismissed as a party defendant.1 Regarding

Chevron and Flettrich, there is complete diversity of citizenship
between them, and the amount is controversy exceeds the
jurisdictional amount. Therefore, this Court has diversity
jurisdiction over the state-based claims against that entity.
C. EXPENSES AND COSTS
Finally, Flettrich asserts that the Court should exercise its
discretion to award attorneys' fees and costs because defendants'
removal of this case was legally improper. 28 U.S.C. § 1447(c)
provides that “[a]n order remanding the case may require payment
of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.” However, “[t]here is no

automatic entitlement to an award of attorney's fees.” Am.
Airlines, Inc. v. Sabre, Inc., 694 F.3d 539, 541–42 (5th Cir. 2012)
(quoting Valdes v. Wal–Mart Stores, Inc., 199 F.3d 290, 292 (5th
Cir. 2000) (holding that the “mere determination that removal was
improper” does not require a district court to award attorney's
fees)). Rather, a court “may award attorney's fees when the
removing party lacks an objectively reasonable basis for removal.”

1 Currently, there are two pending motions to dismiss before the Court, both
filed by defendant Ockmand. See Rec. Docs. 14 and 27. Given Ockmand is now
dismissed from this litigation, both motions to dismiss are rendered moot.
Id. (quoting Howard v. St. Germain, 599 F.3d 455, 457 (5th Cir.
2010) (per curiam) (citations omitted)). Based on the foregoing
analysis, the Court concludes there was an objectively reasonable

ground to remove this case to federal court. Accordingly, the Court
denies Flettrich’s request for attorneys' fees and costs.
New Orleans, Louisiana this 3rd day of May, 2022

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187760. Public record. Not legal advice.