LANCE M. AFRICK, District Judge.
Before the Court is a motion
Harrell is former Orkin employee who began his employment with the company in 1995.
On July 13, 2011, Harrell initiated the above-captioned matter (Tyrone Harrell v. Orkin, LLC, Case No. 73,793-C) in the 29th Judicial District Court for the Parish of St. Charles, State of Louisiana, alleging that he had been subjected to employment discrimination based on race in violation of Louisiana's Employment Discrimination Law.
Orkin thereafter filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Harrell failed to properly plead claims for hostile work environment and constructive discharge and that even if such claims were properly pled, they had prescribed.
Over a roughly two-year period beginning in March 2008, Harrell maintains that he was subjected to an "organized scheme [based on race] ... to discriminatorily prevent [him] from further moving up (and succeeding) at his job at Orkin."
Summary judgment is proper when, after reviewing "the pleadings, the discovery and disclosure materials on file, and any affidavits," the court determines there is no genuine issue of material fact. Fed. R.Civ.P. 56(c). The party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir.1986).
Once the party seeking summary judgment carries its burden pursuant to Rule 56(c), the other party must come forward with specific facts showing that there is a
Harrell's claims are not predicated upon racial discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. § 2000e, et seq.). Rather, he seeks relief pursuant to Louisiana's Employment Discrimination Law ("LEDL," La.Rev.Stat. § 23:301, et seq.). The LEDL — which prohibits an employer from discriminating against an individual based on his race, color, religion, sex, age or national origin — is similar in scope to Title VII's prohibitions against discrimination. Federal courts look to Title VII jurisprudence to interpret the LEDL. Baker v. Fedex Ground Package Sys., 278 Fed.Appx. 322, 327 (5th Cir.2008) ("We look to federal employment discrimination jurisprudence when interpreting Louisiana's anti-discrimination laws." (citing Smith v. Amedisys, Inc., 298 F.3d 434, 448 (5th Cir.2002)); see also King v. Phelps Dunbar, L.L.P., 743 So.2d 181, 187 (La. 1999); Bustamento v. Tucker, 607 So.2d 532, 539 n. 9 (La.1992); Alcorn v. City of Baton Rouge, 898 So.2d 385, 388 (La.App. 1st Cir.2004). Accordingly, this Court also relies on federal caselaw.
To survive summary judgment on a hostile work environment claim, Harrell must establish that: (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) that the harassment was based on race; (4) the harassment affected a term or condition of his employment; and (5) that his employer knew or should have known about the harassment and failed to take prompt remedial action. E.E.O.C. v. WC & M Enters., Inc., 496 F.3d 393, 399 (5th Cir.2007). "Where the harassment is allegedly committed by a supervisor with immediate (or successively higher) authority over the harassment victim," as Harrell alleges here, a plaintiff employee need only satisfy the first four elements. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353-54 (5th Cir.2001) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
To determine whether a hostile work environment exists, the Court must use a totality of the circumstances test that focuses on "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating... and whether it unreasonably interferes with an employee's work performance." Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir. 2007) (citing references omitted). "Although discriminatory verbal intimidation,
The LEDL has a one-year prescriptive period. La.Rev.Stat. § 23:303(D); Baker, 278 Fed.Appx. at 326. Harrell filed his lawsuit in the above-captioned matter on July 13, 2011.
The continuing violation doctrine is not automatically applicable in every case where a plaintiff alleges a hostile work environment claim. Celestine, 266 F.3d at 353 (citing Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir.1998); Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.1983)). As another section of this court has observed, "there are limits to `when a hostile work environment' claim can be invoked to trump an otherwise tolled statute of limitations." Reiskind v. Jefferson Parish Sheriff Office, 2008 WL 4891124, at *3 (E.D.La. Nov. 3, 2008) (Vance, J.). First, the employee bears the burden of demonstrating that an "organized scheme led to and included the present violation." Celestine, 266 F.3d at 353. Furthermore,
Id. at 352-53.
The U.S. Court of Appeals for the Fifth Circuit has identified three factors that a U.S. District Court may consider when determining whether a continuing violation exists: "(1) Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? (2) Are the alleged acts recurring or more in the nature of an isolated work assignment or incident? (3) Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights?" Id. at 352 (citing Huckabay, 142 F.3d at 239).
For the purposes of deciding this motion the Court must construe every possible inference from the evidence presented in Harrell's favor. Yet, even when this Court does so and assumes, given Dear's deposition testimony, that Orkin management discriminatorily prevented Harrell from advancing through the company due to his race, Harrell still cannot surmount the third factor. Orkin's allegedly discriminatory conduct should have triggered Harrell's awareness of and duty to assert his rights.
First, the complained of, allegedly discriminatory, conduct occurring prior to July 13, 2010, is comprised of: (1) a demotion, (2) repeated failures to promote, (3) erroneous "write ups," and (4) the denial of Harrell's year-end bonus. The U.S. Supreme Court has identified these types of discrimination as "discrete acts" and each act constitutes "a separate actionable `unlawful employment practice.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (U.S. 2002) ("Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'").
Such discrete acts differ from the repeated harassment contemplated by a hostile work environment claim where "a single act of harassment may not be actionable on its own." Id. at 115, 122 S.Ct. 2061. As the Fifth Circuit has emphasized, "discrete and salient event[s]" like demotions or failures to promote "should put an employee on notice that a cause of action has accrued." Huckabay, 142 F.3d at 240.
Second, the Court notes that Harrell's deposition testimony reveals that he in fact believed he was being discriminated against at least as early as August 2009 when Dear, rather than Harrell, was promoted to the vacant residential pest control branch manager position.
Harrell cannot overcome the one-year prescriptive period set forth in La.Rev. Stat. § 23:303(D). As the Fifth Circuit has observed, "where a pattern of harassment spreads out over years, and it is evident long before the plaintiff sues that []he was a victim of actionable harassment, []he can not reach back and base [his] suit on conduct that occurred outside the statute of limitations." Celestine, 266 F.3d at 352-53. The Court must dismiss any claims based on discrete acts occurring prior to July 13, 2010, as time-barred. Tillman, 377 Fed.Appx. at 349.
The remaining alleged discriminatory conduct which may form the basis of a hostile work environment claim includes: (1) Harrell's discovery of the allegedly erroneous March and May 2010 write-ups in July 2010 and (2) his exclusion from the summer 2010 golf tournament and lunches with other managers. As set forth above, for Harrell's hostile work environment claim to survive Orkin's motion, he must establish that: (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on race; and (4) the harassment affected a term or condition of his employment. E.E.O.C., 496 F.3d at 399. Whether the write-ups and Harrell's exclusion from the golf tournament affected a term or condition of his employment is critical to plaintiff's satisfaction of the fourth factor.
As set forth in greater detail above, in order for harassment to affect a term or condition of Harrell's employment the workplace must be "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Morgan, 536 U.S. at 116, 122 S.Ct. 2061 (internal quotation marks and citing reference omitted); see also Smith v. Harvey, 265 Fed.Appx. 197, 202 (5th Cir.2008); Castrillo v. Snow, 2004 WL 1920951, at *5 (E.D.La. Aug. 27, 2004) (Zainey, J.).
Harrell has produced Dear's deposition testimony wherein Dear states that at various times he heard members of Orkin's management make racially discriminatory comments and that management did not want Harrell to advance within Orkin because of his race. Harrell argues that these comments support his contention that placing the March and May 2010 write-ups in his personnel file was discriminatory and that this created a hostile working atmosphere. The Court rejects this argument. The comments that Harrell highlights are indeed ignorant, offensive, and demonstrate a racial animus. For example, Dear testified that David Davis referred to African-American employees as "darkies" and that "Davis instructed [Dear] to `throw them a watermelon' whenever `they' get riled up."
Furthermore, Harrell himself testified that during his fifteen years with Orkin he never heard any racially discriminatory or derogatory remarks.
Dear's testimony does not provide any evidence of discrimination rising to the "level of severity or pervasiveness required to support a hostile work environment claim." Id. at 381. Consequently, the Court finds that Dear's testimony does not indicate "conduct so `extreme' as to amount to a change in the terms and conditions of [his] employment." Id. at 382.
As to the contents of the March and May 2010 write-ups,
Harrell disputes Orkin's allegation that the 80% on-time operating standard was "required" and the contributing cause for the high number of "allowances"
In order for Harrell to satisfy the fourth factor regarding whether the alleged harassment he suffered was sufficiently severe or pervasive to alter the conditions his employment, Orkin's complained of conduct must be both objectively and subjectively offensive. E.E.O.C., 496 F.3d at 399. Harrell has testified that he subjectively believed at that time and continues to believe that the write-ups constituted harassment based on his race. Nevertheless, these write-ups also must objectively constitute racially discriminatory harassment. While Harrell asserts that the act of placing such write-ups in his personnel file was discriminatory, he admits that the conversations about these very topics occurred. He also does not argue that the data regarding his service technicians' performances were incorrect. As such, Zimmerman's placement of the write-ups in Harrell's personnel file is not objectively discriminatory.
Finally, Harrell asserts that he was not invited to play in the summer 2010 golf tournament or to eat lunch with other managers. With respect to the golf tournament, Harrell testified that he did not know whether the tournaments were held every year, he did not know who organized the tournaments and he did not know who issued the invites to the players.
Consequently, with respect to all remaining conduct that is not prescribed pursuant to La.Rev.Stat. § 23:303(D), the Court finds such conduct did not create a hostile work environment. Harrell has not presented a prima facie case that his employment with Orkin was so "permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Morgan, 536 U.S. at 116, 122 S.Ct. 2061. Harrell's hostile work environment claim must be dismissed.
"Constructive discharge occurs when an employee has quit [his] job under circumstances that are treated as an involuntary termination of employment." Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir.2004) (citing Young v. Southwestern Sav. & Loan Ass'n, 509 F.2d 140, 144 (5th Cir.1975)). To establish a constructive discharge claim, an employee "must offer evidence that the employer made the employee's working conditions so intolerable that a reasonable employee would feel compelled to resign." Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001); Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir.2000) (quoting Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir.1994)). A plaintiff must further meet an objective, "reasonable employee" test and demonstrate that a reasonable person in his shoes would have felt compelled to resign under the circumstances. See Penn. State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); Tillman, 377 Fed. Appx. at 350; Barrow, 10 F.3d at 297 n. 19. The Court must look to the individual facts of each case without regard to the employee's subjective state of mind. Easterling v. Sch. Bd. of Concordia Parish, 196 Fed.Appx. 251, 253 (5th Cir.2006); Barrow, 10 F.3d at 297.
A constructive discharge claim requires a greater degree of harassment than that required by a hostile environment claim. Brown, 237 F.3d at 566. "Mere harassment, alone, is insufficient; rather, the plaintiff must show `aggravating factors' to justify departure." Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 331 (5th Cir.2004). To determine whether a reasonable employee
First, the Court notes that Harrell was not able to establish a prima facie case of a hostile work environment. Second, the Court agrees with Orkin that Harrell's allegations are as unavailing as those that the plaintiff employee asserted in Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985 (5th Cir.2008), a case wherein the Fifth Circuit affirmed the district court's grant of summary judgment in favor of the defendant employer.
In Stover, the plaintiff claimed that: (1) she was not paid appropriately; (2) she was not provided the same opportunities for career development as her co-workers; (3) her complaints of race discrimination were not investigated; (4) she was not allowed to accrue compensatory time while her co-workers were given such allowance; (5) her supervisor "exhibited anger, violence, shouting, and waved his arms at [her];" and (6) she was "excluded from prestigious retreats" and meetings. Stover, 549 F.3d at 991-92. Given these facts, the Fifth Circuit held that "[t]he evidence that [plaintiff cited] in support of her constructive discharge claim [did] not amount to conditions or an environment so intolerable that a reasonable employee would feel compelled to resign." Id. at 992.
Finally, "[a]n employee who resigns without affording the employer a reasonable opportunity to address [his] concerns has not been constructively discharged." Williams v. Barnhill's Buffet Inc., 290 Fed.Appx. 759, 762 (5th Cir.2008); Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 301 (5th Cir.2001). During the entire period in which Harrell believed he was being discriminated against based on his race, he only complained once, in March 2008.
The Court concludes that a reasonable employee in Harrell's position would have pursued internal remedies or filed an E.E.O.C. complaint before resigning. Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.1990) (holding that, in most cases, a reasonable employee would pursue internal remedies or file an EEOC complaint before resigning). Consequently, the Court finds that Harrell was not constructively discharged and this claim must be dismissed.
Accordingly, given the foregoing reasons,
The Court notes that U.S. District Courts have found that post-employment conduct is not actionable harassment pursuant to Title VII of the Civil Rights Act of 1964. See Lampkin v. U.S. Bancorp, 2008 WL 723744, at *3 (E.D.Mo. March 17, 2008) (holding that post-employment text messages "do not establish an on-going violation by the defendant, because the defendant owed no legal duty to [plaintiff] once it no longer employed her"); Backhanon v. Huff & Assoc. Constr. Co., Inc., 506 F.Supp.2d 958, 968 (M.D.Ala.2007) (holding that post-employment conduct could not defeat summary judgment because "a hostile work environment claim requires that the employee be subjected to the environment") (emphasis in original); see also discussion, infra, regarding Title VII jurisprudence and the LEDL.
