The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DAVID SCOTT VIDRINE, ET AL. CIVIL ACTION
VERSUS
SHARON WESTON BROOME, ET AL, NO. 18-00538-BAJ-EWD
RULING AND ORDER
Before the Court is the Motion for Summary Judgment (Doe. 39), filed by
the Hast Baton Rouge Parish Communications District (the “District”). The Motion is
opposed. (Doc. 54). Defendant filed a Reply. (Doc. 58). For the reasons provided
herein, the District's Motion is GRANTED.
I BACKGROUND
Plaintiffs are one current and three former employees of the City of Baton
Rouge and the Parish of East Baton Rouge, through the Department of Emergency
Medical Services (“EMS”) and, purportedly, the District. (Doc. 54, p. 1). Plaintiffs
allege that they were subjected to “sexist statements and daily harassment by Stacy
Simmons, Chief of Communications.” (Doc. 54, p. 2). Plaintiffs also assert that they
were subjected to a hostile work environment by Simmons and a supervisor, Angie
Poche, since early 2014. (d.).
On April 3, 2018, Plaintiffs filed suit against the District; Sharon Weston
Broom, mayor-president of Baton Rouge, Louisiana; Chad Guillot, interim EMS
Administrator for EMS; and Simmons, in the 19th Judicial District Court in
Louisiana, alleging claims of sex discrimination under the Louisiana Employment
Discrimination Law “LEDL’), La. Rev. Stat. Ann. § 23:301, et seq, as well as Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e). (Doc. 27, p. 18). Plaintiffs also
seek relief for intentional infliction of emotional distress (“TIED”), under La. Civ. Code
art, 2315.1
The District now moves for summary judgment, asserting that it is not
Plaintiffs’ employer for the purposes of Title VII or the LEDL. The District also
asserts that Plaintiffs’ ITED claims against it should be dismissed.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law.” FED. R. Civ. P. 56(a). A party asserting that a fact cannot be
genuinely disputed must support the assertion by citing materials in the record,
including “depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, [and] interrogatory answers” or that an adverse party cannot produce
admissible evidence to support the presence of a genuine dispute. See FED. R. Crv. P.
56(c)(1).
1 Plaintiff Zachary Stewart contends that he was “constructively terminated in
February 2017 because of unfair treatment and reporting of disability and sex
discrimination.” (Doc. 27, p. 17). However, the Complaint does not include disability
discrimination as a claim for relief. See (Doc. 27, at § 61-66). Although the District addresses
disability discrimination in their Motion, (Doe. 39, p. 15), Plaintiffs did not address disability
discrimination in their opposition. (Doc. 54). Therefore, the Court declines to address these
claims.
“[W]hen a properly supported motion for summary judgment is made, the
adverse party must set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L.
Ed. 2d 202 (1986) (quotation marks and footnote omitted). “This burden is not
satisfied with some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotation marks and citations
omitted). In determining whether the movant is entitled to summary judgment, the
Court “view[s] facts in the light most favorable to the non-movant and draw[s] all
reasonable inferences in her favor.” Coleman v. Houston Indep. Sch. Dist., 118 F.3d
528, 533 (5th Cir. 1997) (citation omitted).
Tl. ANALYSIS
A, Title VII
Title VII bars discrimination by an employer against an employee based on sex
or gender. 42 U.S.C, 2000e-2(a). Title VII defines “employer,” as “a person engaged in
an industry affecting commerce who has fifteen or more employees. .., and any agent
of such a person... .,” Muhammad v. Dallas Cnty. Cmty. Supervision & Corrs. Dep't.,
479 F.3d 377, 380 (5th Cir. 2007) (quoting 42 U.S.C. § 2000e(b)).
The parties agree that EMS and the District are nominally separate entities.
There are two theories under which apparently distinct entities may both be
considered employers for the purposes of Title VII in employment discrimination
cases: the “single employer” or “integrated enterprise” theory, which asks whether
two superficially separate entities should be treated as one entity; and the “joint
employer” theory, which assumes that the alleged employers are separate entities
and assesses whether the degree of control is nonetheless sufficient to treat both as
employers. See E.H.0.C. uv. Valero Refining-Texas L.P., No. 3:10-CV-398, 20138 WL
1168620, at *8 (6.D. Tx. Mar. 13, 2013) (citing Trevino v. Celanese Corp.,
701 F.2d 897, 404 (5th Cir. 1983)).
“A company becomes a joint employer when it, while contracting in good faith
with an otherwise independent company, has retained for itself sufficient control of
the terms and conditions of employment of the employees who are employed by the
other employer.” Duhon v. S. (Scrap) Recycling, No. 14-CV-00883-BAJ-EWD,
2016 WL 6832632, at *4 (M.D. La. Nov. 17, 2016) (internal quotations omitted). “The
right to control the employee’s conduct is the most important component of
determining a joint employer.” Perry v. VHS San Antonio Partners, L.L.C.,
No. 20-50356, 2021 WL 912710, at *7 (5th Cir. Mar. 10, 2021) (citation omitted).
Factors which indicate that an employer “controlled” an employee include “the right
to hire and fire, the right to supervise, and the right to set the employee’s work
schedule.” fd. Courts also look to the economic realities of an employer-employee
relationship, such as “who paid the employee’s salary, withheld taxes, provided
benefits, and set the terms and conditions of employment” to determine whether an
entity is an employer. /d. (citations omitted).
Plaintiffs argue that they were “employed” for the purposes of Title VII by both
EMS and the District, because the District has “the authority to hire and fire” under
an Intergovernmental Agreement (“Agreement”)? between it and the City of Baton
Rouge. (Doc. 54, p. 4). The Agreement provides that “[u]nless otherwise specifically
agreed upon by both parties, all personnel provided by the City-Parish shall be
City-Parish employees.” (Doc. 54-1, at | 4.2).
The Agreement also specifies that:
Unless otherwise agreed upon by the parties, all personnel shall
follow City-Parish rules and regulations and shall be disciplined by
the City-Parish when appropriate. ... In the event that the District
is unsatisfied with an employee provided by the City-Parish or
believe that a disciplinary action may be appropriate, the District
Director... shall communicate these concerns in writing to the
Hmergency Communications Chief of Operations for 911 call center
staff and to the EMS Business Manager for all other staff.
Ud. at 4.4).
While Plaintiffs contend that this provision of the Agreement demonstrates
that the District had the authority to hire, fire, and discipline employees, it explicitly
provides the opposite. Plaintiffs have put forth no evidence that the District had the
authority or the ability to control Plaintiffs’ conduct. While it is true that the District
had the discretion to express its dissatisfaction with employee performance,
(Doc. 54-1, at { 4.4), nowhere in the Agreement does it support Plaintiffs’ contention
that the District could act on that dissatisfaction outside of communicating concerns
to EMS.
Plaintiffs admit, and do not contest, the following: EMS hired and fired
Plaintiffs, supervised Plaintiffs, assigned Plaintiffs their work schedules, gave
Agreement outlines the terms by which the City-Parish provides the District with “911
call center staffing, radio shop staffing, Financial and Procurement Services and Building
Use/Building Maintenance.” (Doc. 54-1, p. 2).
Plaintiffs their daily work assignments, and approved or denied Plaintiffs’ requests
for leave. (Doc. 39-2, p. 12); (Doc. 55). EMS maintained records of Plaintiffs’ work
hours, paid Plaintiffs, withheld taxes, and provided employment benefits. (Doc. 39-1,
p. 6). Plaintiffs were subject to the employment policies of EMS, not the District. (Id.);
See also (Doc. 54-1, at J 4.2).
Given this, Plaintiffs have failed to provide any evidence that demonstrates
that the District maintained sufficient control over Plaintiffs so as to be considered a
joint employer with EMS under Title VII. Therefore, Plaintiffs’ Title VII claims
against the District are denied.
B. LEDL
The District also alleges that it is not Plaintiffs’ employer under the LEDL.
While this contention is unopposed, the Court cannot grant summary judgment on
this basis; Defendant must point to the absence of a material factual dispute. Hetzel v.
Bethlehem Steel Corp., 50 F.8d 360, 362 n. 3 (6th Cir. 1995).
Under the LEDL, a political subdivision is an “employer” where it “reciev[es]
services from an employee and, in return, gives] compensation of any kind to an
employee.” LA. REV. Stat. ANN. § 23:302(2). “In determining whether an employer
provides compensation to an employee, Louisiana courts have considered such factors
as: who paid the employee's wages; who withheld federal, state, unemployment, ox
social security taxes; whether the employee's name appeared on the employer's
payroll; and whether the employee participated in the employer's benefit plans.”
Dejote v. Medley, 2008-22238, p. 5 (La. 5/5/09); 9 So. 8d 826, 829 (citation omitted).
As noted, it is uncontested that EMS, rather than the District, paid Plaintiffs,
withheld taxes from their salaries, and provided employee benefits. (Doc. 39-2, p. 14).
Therefore, because it did not give compensation of any kind to Plaintiffs, the District
is not the Plaintiffs’ employer under the LEDL and Plaintiffs’ LEDL claims against
the District are dismissed as a matter of law.
C. Intentional Infliction of Emotional Distress
The District contends that Plaintiffs have not provided any evidence that the
District “engaged in extreme and outrageous conduct towards the Plaintiffs or desired
to inflict severe emotions distress on the Plaintiffs.” (Doc. 39-2, p. 16). Plaintiffs do
not oppose this.
Under Louisiana law, to bring a claim for ITED, a plaintiff must establish
“(1) that the conduct of the defendant was extreme and outrageous; (2) that the
emotional distress suffered by the plaintiff was severe; and (3) that the defendant
desired to inflict severe emotional distress or knew that severe emotional distress
would be certain or substantially certain to result from his conduct.” White v.
Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). In a workplace setting, this cause of
action is limited “to cases which involve a pattern of deliberate, repeated harassment
over a period of time.” Nicholas v. Allstate Ins. Co., 1999-2522, p. 14 dha. 8/31/00);
765 So. 2d 1017, 1026 (citing White, 585 So.2d at 1205). In finding ITED in the
workplace, “the employer’s conduct must be intended or calculated to cause severe
emotional distress.” fd. at 1027 (citing White, 585 So.2d at 1210).
Plaintiffs have not pointed to any conduct “intended or calculated to cause
severe emotional distress” by the District. Jd. at 1027. The District consists of one
employee, Todd Campbell, and the Board of Commissioners. (Doc. 39-2, p. 16).
Plaintiffs purportedly were subjected to harassment by Stacy Simmons and Angie
Poche, neither of whom are employees of the District.
Because Plaintiffs have failed to provide evidence that the District caused or
intended to cause Plaintiffs emotional distress, Plaintiffs IIED claims against the
District are dismissed.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that the District’s Motion (Doc. 39) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ claims against Defendant, the
Hast Baton Rouge Parish Communications District, are DISMISSED WITH
PREJUDICE.
Baton Rouge, Louisiana, this ao, of March, 2021
Bw sf |
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA