Whatley v. Hopewell

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

PATRICIA “KAY” WHATLEY CIVIL DOCKET NO. 1:21-CV-01185

VERSUS JUDGE DAVID C. JOSEPH

JEROME HOPEWELL, ET AL MAGISTRATE JUDGE JOSEPH H.L.

PEREZ-MONTES

MEMORANDUM RULING

Before the Court is a MOTION FOR PARTIAL SUMMARY JUDGMENT (“the Motion”)

[Doc. 14], filed by Defendant, Jerome Hopewell. For the following reasons, the

Defendant’s Motion is GRANTED.

PROCEDURAL HISTORY

On May 4, 2021, Patricia “Kay” Whatley (“Whatley” or “Plaintiff”) filed suit

against her former employer Alexandria City Marshal Jerome Hopewell, Alexandria

City Marshal’s Office employees Chief Deputy Steve Boeta, Deputy Harry Robertson,

Deputy Chris Pruitt, the Alexandria City Marshal’s Office, “Does 1-10,” and “XYZ”

Insurance Companies 1-10, alleging claims of: (1) Title VII discrimination, (2) Title

VII retaliation, (3) ADA discrimination, (4) ADA retaliation, (5) violations of the

Louisiana Employment Discrimination Law, (6) assault and battery under Louisiana

Law, (7) intentional infliction of emotional distress under Louisiana Law, (8) breach

of Louisiana’s Whistleblower Protection Law, (9) breach of the implied covenant of

good faith and fair dealing under Louisiana Law, and (10) obligations under

Louisiana’s Direct Action Statute. [Doc. 1 ¶ 148-238].

On June 21, 2021, Defendants filed an Answer and a Partial Motion for

Summary Judgment seeking to dismiss all claims brought against the Alexandria

City Marshal’s Office, Title VII and ADA claims against the individual Defendants

personally, all claims for breach of the implied covenant of good faith and fair dealing,

state law claims of assault, battery, and intentional infliction of emotional distress,

and all Louisiana state law whistleblower claims. [Docs. 5, 6-1]. Plaintiff filed a

response asserting no opposition to the relief requested and the Court granted the

Motion for Partial Summary Judgment on July 15, 2021. [Docs. 8-10].

Pursuant to the Court’s request, Plaintiff filed an Amended Complaint

asserting the remaining claims and naming only Alexandria City Marshal Jerome

Hopewell (“Hopewell” or “Defendant”) and XYZ Insurance Companies as Defendants.

[Doc. 11 p. 1]. Plaintiff’s claims stem from allegations that while working as a Deputy

Marshal with the Alexandria City Marshal’s Office, Hopewell and other co-workers

subjected her to daily physical and verbal sexual harassment, discrimination related

to an injury, and retaliation after she made complaints to her supervisors. [Doc. 11

¶¶ 2-8].

Defendant filed this Motion for Partial Summary Judgment on September 24,

2001, seeking to have Plaintiff’s claims brought under the Louisiana Employment

Discrimination Law dismissed. [Doc. 14]. Plaintiff was permitted an extension of

time to respond, after which she filed her brief in opposition to the Motion and

Defendant filed a Reply Memorandum. [Docs. 17, 18, 21, 22]. The Defendant’s Motion

is now ripe for ruling.

BACKGROUND

Plaintiff began working for the Alexandria City Marshal’s Office on June 29,

2017, as an Administrative Assistant, and in November 2017 was promoted to the

position of Deputy Marshal. [Doc. 11 ¶¶ 20, 23]. Defendant is the City Marshal for

the Alexandria City Marshal’s Office, the highest authority in that office. [Doc. 11 ¶

14].

Plaintiff brings claims alleging that while she was working as a Deputy

Marshal, she endured sexual harassment, disability discrimination related to an

injury, and retaliation. [Doc. 11]. In support of these claims Plaintiff contends that

although she injured herself twice while training for her position, the Alexandria City

Marshal’s Office failed to accommodate her injuries. Id. Plaintiff also claims that her

co-deputies and the Defendant made comments about her physical appearance, made

physical contact with her without consent, requested she perform sexual acts,

discussed her private health information, spread rumors about her personal life, and

even shocked her with a TASER. Id.

Plaintiff alleges she reported this misconduct to her supervisors, including

Defendant, on three separate occasions but that her reports were only met with

additional instances of harassment and hostility. Id. Plaintiff also claims that after

filing a charge with the Equal Employment Opportunity Commission (“EEOC”),

Defendant retaliated against her by installing cameras in Plaintiff’s office without

her knowledge and issuing her a written warning for causing “severe disruption” by

“threatening to sue the Alexandria City Marshal’s Office.” Id.

Plaintiff alleges she was constructively discharged on February 4, 2020 when

she resigned “due to the stress of being subject to a hostile work environment

consisting of sexual harassment, discrimination and retaliation for exercising [her]

rights after filing a complaint with the EEOC.”

SUMMARY JUDGMENT STANDARD

A court should grant a motion for summary judgment when the pleadings,

including the opposing party’s affidavits, “show that there is no dispute as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A genuine

dispute of material fact exists “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Hefren v. McDermott, Inc., 820 F.3d 767,

771 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

A fact is “material” if proof of its existence or nonexistence would affect the outcome

of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The movant bears the burden of demonstrating the absence of a genuine

dispute of material fact but need not negate every element of the nonmovant’s claim.

Hongo v. Goodwin, 781 F. App'x 357, 359 (5th Cir. 2019) (citing Duffie v. United

States, 600 F. 3d 362, 371 (5th Cir. 2010)). If the movant meets this burden, the

burden then shifts to the nonmovant who is required to “identify specific evidence in

the record and articulate the manner in which that evidence supports that party’s

claim.” Johnson v. Deep E. Texas Reg'l Narcotics Trafficking Task Force, 379 F.3d

293, 301 (5th Cir. 2004). However, summary judgment cannot be defeated through

“[c]onclusional allegations and denials, speculation, improbable inferences,

unsubstantiated assertions, and legalistic argumentation.” Acker v. Gen. Motors,

L.L.C., 853 F.3d 784, 788 (5th Cir. 2017) (quoting Oliver v. Scott, 276 F.3d 736, 744

(5th Cir. 2002)).

In applying this standard, the Court should construe “all facts and inferences

in favor of the nonmoving party.” Deshotel v. Wal-Mart Louisiana, L.L.C., 850 F.3d

742, 745 (5th Cir. 2017); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)

(“The evidence of the non-movant is to be believed, and all justifiable inferences are

to be drawn in his favor.”). The motion for summary judgment should be granted if

the non-moving party cannot produce sufficient competent evidence to support an

essential element of its claim. Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197

(5th Cir. 2005).

DISCUSSION

The Motion seeks a partial summary judgment on Plaintiff’s claims of

discrimination and retaliation under the Louisiana Employment Discrimination Law

(“LEDL”). La. R.S. §§ 23:301, et seq.

A. Arguments Before the Court

Plaintiff’s LEDL claims are premised on her contention that Defendant

discriminated against her because of her gender and disability by: (i) subjecting her

to hostile workplace and quid pro quo sexual harassment, (ii) failing to accommodate

her disability, and (iii) retaliating against her for reporting this conduct. [Doc. 11 ¶¶

198-203]. Defendant responds that he is not subject to the LEDL because, during the

requisite time, he did not employ “twenty or more employees…for each working day

in each of twenty or more calendar weeks of the current or preceding calendar year”

as required by the statute. [Doc. 14-1 p. 3]. Defendant asserts that when determining

the number of employees for LEDL purposes, the “payroll method” should be used.

[Doc. 14-1 p. 4]. Further, Defendant argues that utilizing the “payroll method” shows

the Alexandria City Marshal did not employ at least 20 employees for at least 20

calendar weeks during the years of 2016-2020.1 [Doc. 14-1 p. 5].

Plaintiff counters that a genuine dispute of fact exists as to whether the

Alexandria City Marshal employed at least 20 employees during the relevant time

period. [Doc. 21 p. 5]. Specifically, Plaintiff contends that inmates engaged in a work

release program at the Alexandria City Marshal’s Office should be considered

employees. [Doc. 21 p. 6].2 Plaintiff also claims that payroll records provided by

1 Plaintiff has alleged that the discrimination occurred between 2017 and 2020. [Doc.

11]. Defendant has submitted as summary judgment evidence, payroll records for the period

from 2016-2020, including the year prior to Plaintiff’s first allegation through the year of her

resignation. [Doc. 14-1 p. 5]. When determining whether 20 or more employees were

employed for at least 20 weeks of the “current or preceding calendar year,” Defendant

contends that “current year” is the year in which the alleged discrimination occurred. [Doc.

14-1 p. 4]. In support of this, Defendant cites Dumas v. Town of Mount Vernon, Ala., in which

the Fifth Circuit held that “current year” for Title VII determinations means “the year in

which the alleged discrimination occurred.” 612 F.2d 974 (5th Cir. 1980) (overruling on other

grounds in Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549 (11th Cir. 1988)

recognized in Green v. Grampre, 388 F. App’x 427 (5th Cir. 2010)). Defendant’s position in

this regard is not disputed by the Plaintiff.

2 In support of this argument, Plaintiff claims that the “payroll method” is not the only

way for determining the number of employees during a given time period. [Doc. 21 p. 6].

Citing cases from district courts in New Jersey and Pennsylvania, Plaintiff contends that the

Court should apply “principles of agency law” to decipher “whether an employer has

employment relationships.” Id. Additionally, Plaintiff cites Watson v. Graves in which the

Fifth Circuit used the economic-realities test and found that, under the Fair Labor Standards

Defendant fail to account for at least one employee, Harry Robertson (“Robertson”),

during the period of May to September of 2018. [Doc. 21 p. 3].

In reply, the Alexandria City Marshal’s Office alleges that Robertson does not

appear in the payroll records during that time because he had left his employment in

the Alexandria City Marshal’s Office to work as a detective in a different city. [Doc.

22 p. 2]. Defendant also argues that Plaintiff has not provided any evidence, other

Act, work-release inmates were employees of a private contractor who, “supervised and

controlled…conditions of employment,” including having hiring and firing power. 909 F.2d

1549, 1555 (5th Cir. 1990). The Court, however, granted summary judgment in favor of the

Sheriff and Warden of the prison, noting that the work-release inmates did not provide any

evidence to demonstrate that they had an employment relationship. Id.

Analogous to the LEDL’s 20-employee requirement, when applying the 15-employee

requirement under Title VII, Louisiana district courts have generally held that courts must

first look to whether an individual appears on the payroll and then, secondarily, to

“traditional principles of agency law.” See, Pate v. Pontchartrain Partners, LLC, 2014 WL

2560416, at *3-4 (E.D. La. June 6, 2014); Imbornone v. Tchefuncta Urgent Care, Inc., 2013

WL 3818331, at *2 (E.D. La. July 22, 2013); McCarty v. Southland Builders & Assocs. Inc.,

2007 WL 963202, at *7 (W.D. La. Mar. 28, 2007); Tyler v. Int'l Bhd. of Elec. Workers, 2000

WL 17839, at *2 (E.D. La. Jan. 11, 2000) (citing Walters where the Supreme Court stated

that, “an individual who appears on the payroll but is not an ‘employee’ under traditional

principles of agency law…would not count toward the 15-employee minimum.” 519 U.S. 202,

211, (1997)).

Here, the work-release inmates were not on the Defendant’s payroll and Plaintiff has

not provided summary judgment evidence otherwise demonstrating that the work-release

inmates had an employment relationship with the Alexandria City Marshal’s Office.

Specifically, Plaintiff has failed to provide evidence showing that the Alexandria City

Marshal’s Office paid the work-release inmates, controlled the amount of their pay, had

hiring or firing ability, or had any control over the conditions of their employment. Mere

“conclusory allegations” and unsubstantiated assertions” are not sufficient summary

judgment evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding

that “We do not…in the absence of any proof, assume that the nonmoving party could or

would prove the necessary facts.”).

than her unsupported assertions, to show that the Alexandria City Marshal’s Office

employed work-release inmates. [Doc. 22 p. 4].

B. Payroll Method

Under the LEDL, an “employer” is “a person, association, legal or commercial

entity, the state, or any state agency, board, commission, or political subdivision of

the state receiving services from an employee and in return, giving compensation of

any kind to an employee.” La. R.S. § 23:302. The LEDL only applies to employers

who meet this definition and who “emplo[y] twenty or more employees within the

state for each working day in each of twenty or more calendar weeks in the current

or preceding calendar year.” Id.

In Walters v. Metropolitan Educational Enterprises, Inc., the Supreme Court

found that when determining the existence of an employment relationship for Title

VII purposes, using the “payroll method” is appropriate. 519 U.S. 202, 210, (1997).

Subsequently, the Fifth Circuit affirmed an Eastern District holding that applied the

“payroll test” used in Walters to state law employment claims brought under the

LEDL. See, Mahl v. Nokia, Inc. 212 F. App’x. 279, 280 (5th Cir. 2006) and Mahl v.

Nokia, Inc., 2006 WL 8456801, at *1 (E.D. La. April 18, 2006).3

3 Louisiana district courts have consistently held that when determining the number of

employees for purposes of the LEDL, it is appropriate to apply the “payroll method” utilized

in Title VII cases. See Davis v. Gavin, 2021 WL 3573040 at *8 (W.D. La. Aug. 12, 2021);

Durham v. AMIKids, Inc., 2020 WL 1493664 (M.D. La. March 27, 2020); Imbornone v.

Tchefuncta Urgent Care, Inc., 2013 WL 3818331, at *4 (E.D. La. July 22, 2013); Johnson v.

Hospital Corp. of America, 2011 767 F. Supp. 2d 678, 693 (W.D. La. 2011); Brown v. Canal

Energy & Servicing, Inc., 2011 WL 2937276, at *6 (E.D. La. July 19, 2011); McCarty v.

Southland Builders & Assocs. Inc., 2007 WL 963202, at *10 (W.D. La. Mar. 28, 2007).

After conducting an independent review of the affidavits and payroll records

submitted by the parties, this Court finds that Defendant did not employ at least 20

employees during 20 or more calendar weeks in 2016-2020. The payroll records

unequivocally show − giving every reasonable inference to the non-movant – that the

Defendant potentially employed 20 or more employees on only 6 separate occasions

during 2016-2020, but never for more than 20 calendar weeks in a year. Moreover,

Plaintiff’s affidavit stating that she “recall[s]” the Alexandria City Marshal’s Office

employing Robertson and work-release inmates, does not constitute sufficient

evidence to withstand summary judgment. [Doc. 21-2]. See, Mahl, 2006 WL 8456801,

at *3-4 (finding the Plaintiff’s affidavit alleging that “to her knowledge” Defendant

employed “numerous people” was insufficient evidence to withstand summary

judgment.)

Because: (i) Defendant has provided sufficient summary judgment evidence to

show that the LEDL should not apply under these facts, and (ii) Plaintiff has provided

no evidence that the Alexandria City Marshal’s Office employed 20 or more employees

for 20 or more calendar weeks as required by the LEDL, the Court grants summary

judgment in Defendant’s favor as to Plaintiff’s claims under the LEDL.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Motion

for Partial Summary Judgment [Doc. 14] is GRANTED.

IT IS FURTHER ORDERED that all Louisiana Employment Discrimination

Law claims asserted by Plaintiff against Jerome Hopewell are DISMISSED WITH

PREJUDICE.

THUS, DONE AND SIGNED in Chambers on this 2™4 day of December 2021.

Chad C

DAVID C. JOSEPH

UNITED STATES DISTRICT JUDGE

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