SARAH S. VANCE, District Judge.
Before the Court are defendant Stanley Green's motion for partial summary judgment on the issue of intentional infliction of emotional distress
This case arises out of defendant Green's alleged sexual harassment of plaintiff Lindsay Armond Garcia. During the 2016 school year, Garcia was a fifth and sixth grade social studies teacher at William J. Fisher School in Algiers, Louisiana.
In response to the meeting with Garcia, Green was placed on administrative leave with pay beginning on December 2, 2016.
On August 22, 2017, Garcia filed this suit in federal court, claiming negligence, intentional infliction of emotional distress, and assault and battery against Green and ACSA and seeking damages under Title VII.
Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "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." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. A dispute about a material fact is genuine "if the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 ("Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." (quoting Celotex, 477 U.S. at 322).
Green argues that Garcia cannot prove intentional infliction of emotional distress against him as a matter of law because the text messages that Green and Garcia exchanged were friendly and casual rather than extreme or outrageous,
To state a claim for intentional infliction of emotional distress, 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. 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." Id. Such conduct "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. 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.
"[I]n a workplace setting," Louisiana courts have "limited the cause of action to cases which involve a pattern of deliberate, repeated harassment over a period of time." Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1026 (La. 2000). Indeed, conduct that would not be outrageous when viewed "as an isolated incident" can "become such when repeated over a period of time." Bustamento v. Tucker, 607 So.2d 532, 538 (La. 1992). In addition, "[a] plaintiff's status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger." White, 585 So. 2d at 1210.
Under this standard, Green has not shown that Garcia's claim fails as a matter of law. Garcia has testified that Green repeatedly harassed her—at work, in phone conversations, and by text—for three and a half months.
Garcia also recorded Green explaining his plan to "snatch someone," "keep them for a period of time," "not hurt them or mark them or bruise them," but "kidnap" and "subdue" them.
Green made threatening remarks to Garcia to demonstrate his power over her. He told her not to go to her direct supervisor with questions or concerns and instead to report only to him because she was a "special case."
Green is not entitled to summary judgment because a jury could reasonably find that Green's conduct is extreme and outrageous. Garcia testifies to an ongoing litany of highly inappropriate comments that establish a pattern of repeated, deliberate harassment. While there is "no litmus test for outrageousness," Green's comments go beyond what any civilized community would tolerate. Skidmore v. Precision Printing and Pkg., Inc., 188 F.3d 606, 613 (5th Cir. 1999). This is especially true because Green made sexual and threatening comments in front of Garcia's students, who are children. Garcia is also entitled to greater protection because Green had substantial power over her, including personally approving her time off and conducting her performance reviews.
A reasonable juror could also find that Garcia suffered severe emotional distress as a result of Green's actions. White, 585 So. 2d at 1209. Garcia visited a counselor after Green's repeated harassment and was treated for anxiety and depression. Garcia also testified that she dreaded coming to work,
Finally, a reasonable juror could also conclude that Green intended to inflict emotional distress on Garcia. A reasonable jury could find that Green knew that his ongoing sexual advances were substantially certain to cause Garcia emotional distress, because she told him so directly on multiple occasions.
Green cites several cases that he argues prove Garcia's claim fails as a matter of law. The first of these is Smith v. Amedisys, in which the Fifth Circuit affirmed the trial court's grant of summary judgment in favor of the defendant. 298 F.3d 434 (5th Cir. 2002). Green contends that the pattern of behavior in Smith is more egregious than Green's behavior, so that Green's conduct cannot qualify as extreme or outrageous. This argument is meritless, because the Fifth Circuit evaluated only the second prong of the White test in Smith (whether the plaintiff suffered severe emotional distress), and it drew no conclusions as to whether the conduct alleged satisfied the first prong (whether the defendant's conduct was extreme and outrageous). Id. at 449. As to the second prong of the White test, the plaintiff in Smith alleged only that she felt embarrassed, angry, depressed, and suffered from headaches. Id. at 450. She received medical treatment only for her headaches, and her treating physician testified that he had no record of the headaches being related to stress or sexual harassment. Id. Garcia's symptoms and treatment in the record before the Court are more serious.
Green also cites several non-binding district court and Louisiana appellate court cases with ostensibly similar, but ultimately distinguishable, facts.
Garcia at least raises a material issue of fact as to all three parts of her intentional infliction of emotional distress claim. Green's motion for partial summary judgment is therefore denied.
ACSA seeks summary judgment on Garcia's vicarious liability claim under Title VII of the Civil Rights Act of 1964.
Title VII of the Civil Rights Act of 1964 provides in relevant part that "[i]t shall be an unlawful employment practice for an employer to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). Title VII is violated when a plaintiff alleges sexual harassment "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotation omitted). A 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." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted).
The Supreme Court has distinguished between cases in which a hostile work environment is created by the plaintiff's co-workers and cases in which the hostile work environment is created by the plaintiff's supervisor. See Ellerth, 524 U.S. at 760; Faragher, 524 U.S. at 803. When the plaintiff's supervisor is responsible, the employer can be held vicariously liable for the supervisor's actions without any showing that the employer was personally negligent. See Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
The only affirmative defense available to employers in a supervisor sexual harassment case in which an employee alleges a hostile work environment is the one announced by the Supreme Court in Ellerth and Faragher. See Casiano v. AT&T Corp., 213 F.3d 278, 288 Appendix (5th Cir. 2000). The Ellerth/Faragher defense is not available when a "tangible employment action" has been taken against the employee alleging a violation a Title VII. See Watts v. Kroger Company, 170 F.3d 505, 510 (5th Cir. 1999).
The Ellerth/Faragher affirmative defense allows an employer to avoid vicarious liability if it can prove: "(a) that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807. To succeed, the employer must establish both prongs of the Ellerth/Faragher affirmative defense; otherwise the employer is not protected from vicarious liability for the supervisor's harassment. See Casiano, 213 F.3d at 284.
Garcia argues that her low performance review by Green is a tangible employment action that precludes the Ellerth/Faragher defense.
To satisfy the first prong of the Ellerth/Faragher defense, ACSA must show that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior. Faragher, 524 U.S. at 807. A reasonable sexual harassment policy, of which the employee was aware is strong evidence of an employer's reasonable care. Ellerth, 524 U.S. at 765; Pullen v. Caddo Parish School Board, 830 F.3d 205, 210 (5th Cir. 2016) ("Where the plaintiff admits that he or she was on notice of a [sexual harassment] policy and complaint procedure and the court determines that the policy was reasonable, we have consistently found the first prong satisfied."). A policy is reasonable when it specifically mentions sexual harassment, rather than simply referring to anti-discrimination, and specifies a complaint procedure. Id. (citing E.E.O.C. v. Boh Bros. Constr. Co., LLC, 731 F.3d 444, 463-65 (5th Cir. 2013)). ACSA has a sexual harassment policy with a specific complaint procedure, and Garcia admits that she was aware of this policy.
In addition, ACSA promptly investigated Garcia's allegations once it learned of them. Garcia argues that ACSA failed to act promptly because Green returned to school on the day immediately after Garcia reported Green's behavior on December 1, 2016.
The second prong of the Ellerth/Faragher defense requires ACSA to show that Garcia unreasonably failed to take advantage of any preventative or corrective opportunities provided by ACSA to avoid harm. Ellerth, 524 U.S. at 765. An employee's unreasonable failure to use the complaint procedure provided by her employer is sufficient to satisfy the employer's burden. Id. Garcia did not file a complaint through the procedures designated in ACSA's sexual harassment policy, although she did meet with representatives of ACSA when they found out about the harassment from a third party and asked to meet with her. Garcia's failure to officially report Green's harassment for three and a half months was unreasonable despite her complaints to third parties. See Thompson v. Naphcare, Inc., 114 Fed. App'x 317, 324 (5th Cir. 2004) (holding that failure to report for two months is unreasonable); Williams v. Barnhill's Buffet Inc., 290 Fed. App'x 759, 763 (5th Cir. 2008) (holding that informal complaints to co-workers are insufficient). Her decision not to take advantage of ACSA's corrective opportunities allowed Green's harassment to escalate and continue. Faragher, 524 U.S. at 806 (holding that sexual harassment victims have a duty "to use such means as are reasonable under the circumstances to avoid or minimize damages"); see also Adams, 2009 WL 2883038, at *6 (holding that plaintiff "should not have idly sat by until her work environment degenerated into a hostile one.").
Garcia argues that it was reasonable for her not to report the harassment because Green was powerful within the school and a good friend of officials at the very top of ACSA's organizational structure.
For the foregoing reasons, Green's partial motion for summary judgment is DENIED and ACSA's motion for summary judgment is GRANTED.
