JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA.
Lately pregnant, a long-term employee, a certain store's co-director, asks her direct supervisor for a restructured set of duties, i.e. an accommodation of responsibilities, none deemed "essential" or "primary." Her doctor advises it; the health of baby and mother demand it. To her, it seems neither unusual nor problematic, her proposed alterations having been previously afforded by her employer to many other colleagues laboring under similar physical limitations. The supervisor forwards the request to the corporate headquarters located on Florida's Atlantic coast. Eventually, in response, an offer she cannot refuse is made: accept a demotion or take the leave to which the law entitles you. She takes the leave, as it makes the most sense. She needs the money, and the insurance is most crucial, while her fiancée cannot help, for he is unemployed. A healthy baby is born a few weeks late. Four weeks later, the new mother contacts Human Resources with the happy news — and an odd question: why will my store discount card no long work? The answer soon comes from HR: Ma'am, you were fired two weeks ago. On the basis of this story, a complaint was drafted, and this case was born. The mother's name is Ms. Melissa R. Martin ("Martin" or "Plaintiff"); her employer is Winn-Dixie, Inc. ("Winn-Dixie" or "Defendant").
At present, however, before the Court is one motion: Defendant's Motion for Summary Judgment ("MSJ"), (Doc. 31), filed after a motion to dismiss, (Doc. 17), but before this Court partly granted the latter, (Doc. 37).
This Court agrees and disagrees in part with Defendant. As a threshold matter, it rejects Defendant's arguments that it must set aside and ignore Plaintiff's tardily submitted evidence — a declaration by Mr. Wayne Ivy ("Ivy Declaration") — pursuant to Rules 26(a)(1) and 37(c)(1) and treat Plaintiff's still extant claims as not properly exhausted. It does so because both contentions defy the Rules' clear text, well-established case law, and the relevant documents. It also finds that, based on federal and state discrimination law, Plaintiff has met her minimal burden as to these two discrete claims. More than enough evidence exists to lead a jury to reasonably conclude that Defendant discriminated against Plaintiff due to her pregnancy and has advanced a purely pre-textual justification. While Defendant believes only nearly identical comparators will do, sufficiently close comparators, the PDA's minimum, can be found. Meanwhile, the descriptions provided of Plaintiff's former post contradict its assertions, and its agents have offered contradictory testimony as to whether the physical activity that Plaintiff could not do — lifting, pushing, and pulling up to eighty pounds — was truly an essential function. In contrast, as Plaintiff has failed to allege a sufficient quantum and level of actions by Defendant or its certain agents to support a harassment claim and has not offered the kind of proof necessary to support an IIED claim, this Court must dismiss those claims pursuant to Rule 56. Now, therefore, Plaintiff's claims for discrimination alone remain, as she has satisfied Rule 56's minimum.
As such, for the reasons more fully explained below, this Court GRANTS and DENIES IN PART the Defendant's MSJ.
The purpose of a co-director is to "lead, manage and develop" her (or his) team and the store's operations. (Doc. 31-4 at 11-12.) The non-exhaustive list of job functions leaves no doubt that the thrust of what the co-director must do is manage operations and recruiting and to delegate as appropriate. (See id.) Although Defendant reserved the right to change this list at its discretion, physical lifting, pushing, and pulling requirements were not designated as "primary" and "essential" at the time of Plaintiff's employment.
Nonetheless, a co-director should be able to carry, push, lift or pull up to eighty (80) pounds for up to one-third of each work day. (Id. at 14). The listed percentage range for this physical activity, however, is between 1% and 33%. (Id.) In fact, a co-director is expected to sit ("frequently," defined as between 34-66%") and to stand and walk ("continuously," defined as between "67-100%") more often than to lift, push, or carry "up to 80" pounds. (Id.) Interestingly, defendant's counsel conceded as much during Sutton's deposition, objecting: "There's no category of essential physical demands. There's never, occasionally, frequently, continuously." (Doc. 31-5 at 9 (emphasis added).) While Sutton seemed to regard such physical tasks as "essential" in a colloquial sense — "You may have just one person open a store and have very little backup. And it would be essential that she be able to perform her duties if she was there by herself," (id. at 10) — he did not identify lifting, pushing, and pulling as amongst a co-director's essential "duties" when asked to describe that position's "essential" duties. Instead, he intoned: "To assist the store director with whatever he needs, in charge of profits, sales, making sure we attain our budgets, helping direct people in the store, setting ads for the upcoming week, just helping to maintain and run the store." (Doc. 31-5 at 5-6). In contrast, Ms. Myndi Savoy ("Savoy"), the human resources generalist for Winn-Dixie's Prairieville store, insisted that "unloading the trucks" was a "primary responsibilit[y]." (Doc. 31-6 at 5.) Regardless, the description does not explicitly prohibit co-directors from seeking help or using pallet trucks, jacks, or forklifts to accomplish any heavy lifting. (Doc. 31-4.)
Defendant's associate handbook ("Handbook") provides further detail. It states that all Winn-Dixie employees labor "at-will," employment terminable "by either the [a]ssociate or ... [c]ompany at any time, for any reason, with or without notice." (Doc. 31-4 at 20.)
On December 15, 1995, Defendant hired Plaintiff as a part-time cashier. (Doc. 1-1 at 2; Doc 31-1 at 1; Doc. 38-1 at 2.) Over the next fifteen years, she held various positions at sundry Winn-Dixie stores located in and around Baton Rouge, Louisiana. (Doc. 31-1 at 1.) Eventually, Defendant promoted her to co-director, described as "the second most senior store-level management
On September 4, 2012, Plaintiff "discovered that she was pregnant" and "[a]lmost immediately" or "immediately" informed Defendant via Sutton. (Doc. 1-1 at 3; Doc. 31-1 at 3.) Sometime thereafter, Plaintiff's obstetrician/gynecologist, Dr. Lewis ("Lewis"), observed the pregnant Plaintiff "performing some type of heavy lifting." (Doc. 31-1 at 3.) Thereupon, on October 4, 2012, Lewis provided Plaintiff with a note restricting her from lifting no more than ten pounds and working no longer than eight hours. (Id.) On October 5, 2012, Plaintiff submitted this note to and requested a reasonable accommodation from Defendant; once more, Sutton served as the critical conduit. (Id.; Doc. 1-1 at 3.) On that day, Sutton faxed the doctor's note to Savoy who thereupon sent both to Defendant's legal department, located in Jacksonville, Florida. (Doc. 31-1 at 3; Doc. 31-5 at 8.) On that same day, presumably after speaking with Savoy, Sutton "advised" Plaintiff that she would "probably" need to "step down," taking "a part-time position" and a clear "demotion," and "gave ... [P]laintiff an unfavorable annual evaluation." (Doc. 1-1 at 3; Doc. 31-1 at 4.) At that time, having reviewed her doctor's restrictions, Sutton attempted to accommodate Plaintiff by advising her "to self-administer" and herself avoid "working over eight hours, mak[ing] sure she left at eight hours[,] and mak[ing] sure she didn't pick up over 10 pounds." (Doc. 31-5 at 8.) According to Sutton, this "accommodation" lasted until Plaintiff left.
On October 18, 2012, Sutton advised Martin to request a Leave of Absence ("LOA") and speak to the store's human resources department. (Doc. 31-1 at 4; Doc. 1-1 at 3.) Four days later, Plaintiff spoke with Sutton's own boss, Mr. Edwin Tucker ("Rucker"), who "advised [P]laintiff that he was not aware of her situation and would need to contact Mr. Sutton"; he directed Plaintiff to contact Savoy. (Doc. 31-1 at 4.) On or about October 25, 2012, Martin spoke with Savoy. (Doc. 31-1 at 4;
Subsequently, Plaintiff applied for and received leave until January 9, 2013. (Doc. 1-1 at 4; Doc. 31-1 at 5.) She had, however, been told that an extension until April 16, 2013, could later be sought. (Doc. 31-1 at 6.) Plaintiff eventually applied and was approved for short-term disability and long-term disability benefits through Winn-Dixie's third-party provider, effectively extending her leave through April 16, 2013. (Id. at 7.) She also "cashed in two weeks of PTO benefits." (Id.) In total, she requested leave through May 1, 2013, (id. at 6), though she apparently understood "that once [her] personal leave expired on April 16th, ... her employment was going to end if ... [she] didn't return to work," (Doc. 31-3 at 14; see also Doc. 31-1 at 8). Nevertheless, based on the plain text of Plaintiff's formal request for leave, Plaintiff and Defendant knew that she would "need" six weeks of post-birth recovery. (Doc. 31-1 at 7; see also Doc. 31-3 at 15-16.)
On March 31, 2013, Plaintiff gave birth. (Doc. 1-1 at 4.) Without delivering any explicit notice,
Though Defendant fired Plaintiff in April 26, 2013, Plaintiff had first met with a lawyer regarding Defendant's allegedly discriminatory conduct in November 2012. (Doc. 31-1 at 9.) On January 9, 2013, Plaintiff charged Defendant with pregnancy discrimination by first filing, as required, an intake questionnaire for the Louisiana Commission on Human Rights ("LCHR") and Equal Employment Opportunity Commission ("EEOC").
On September 24, 2013, forty-three days prior to the mailing date affixed to the Notice, (id.), Plaintiff commenced a suit for sexual discrimination, harassment, and retaliation, among other claims, in the Nineteenth Judicial District Court for the Parish of Baton Rouge, Louisiana, on September 24, 2013. (Doc. 31-1 at 10; Doc. 1-1 at 2, 6.) Pursuant to various subsections of the United States Code's twenty-eighth title,
Setting aside the contentions related to claims already dismissed, (Doc. 37), Defendant's papers present a four-part argument for why no genuine issue of material facts remains as to Plaintiff's discrimination, harassment, and tort claims.
Initially, Defendant argues for the exclusion of the Ivy Declaration, appended to Plaintiff's First Opposition. (Doc. 38-4 at 11-13.) It offers two reasons: "Mr. Ivy was not previously disclosed as a witness, within applicable pretrial deadlines," as required by Rule 26(a)(1), and the Declaration "is inadmissible because it is not based on personal knowledge, includes hearsay, and/or amounts to inadmissible lay opinion." (Doc. 44 at 3; see also, e.g., Doc. 48 at 2-4; Doc. 58 at 3-11.) Defendant specifically rejects Plaintiff's defense of the Ivy Declaration as an impeachment tool, as it is both substantive and directed at no witness. (Doc. 44 at 3-5.) According to Defendant, Plaintiff's stated justification — she realized Ivy's value upon the MSJ's filing — is belied by Ivy's own admission that he spoke to counsel "a couple months" before the Declaration's execution, and Defendant seemingly questions the veracity of this declaration. (Doc. 58 at 5-7.) More specifically, it first points out that the First Opposition was filed on March 25, 2013, the same date of the Ivy Declaration, (Doc. 38; Doc. 38-4), and the MSJ was docketed on February 27, 2013, (Doc. 31). Emphasizing this twenty-six day gap, Defendant argues that the assertion of Plaintiff's counsel — "Plaintiff's counsel did not learn of Mr. Ivy until Defendant's
Defendant also insists that harm has resulted from the Ivy's late disclosure, for even a minor delay may upset trial preparation, it has spent time and effort to litigate this very issue, and it is unable to develop his testimony. (Doc. 44 at 8-9.) "Admission of the [d]eclaration [by Plaintiff's counsel] at this point deprives Defendant the opportunity to test ... [her] account [of the Ivy Declaration] under cross-examination." (Doc. 58 at 6.) Harmlessness, it adds, was Plaintiff's obligation to prove. (Doc. 44 at 9; see also Doc. 58 at 8.) It concludes by deriding the Ivy Declaration as being "neutral" only as to Plaintiff's accommodation claim, (Doc. 58 at 9), echoing its earlier argument that the Ivy Declaration "does nothing to further Martin's case," (Doc. 44 at 6). Its last filing summarizes its core assault on the Ivy Declaration: "In the exercise of reasonable diligence, Plaintiff had numerous opportunities to disclose that Ivy was a potential witness," moments it did not seize, and allowance of the Ivy Declaration now "effectively forces Winn-Dixie to pay the price of Plaintiff's professed lack of recall," with "the only evidence regarding that late disclosure completely and unquestionably controvert[ing] Plaintiff's account." (Doc. 58 at 11.)
Second, Defendant attacks the legal viability of Plaintiff's claims under Title VII and its Louisiana parallel. It does so in two ways. Primarily, "Plaintiff was not entitled to [an] accommodation," it writes, "because she was not `qualified' for her Co-Director position, due to the ten-pound lifting restriction imposed by her physician"; much stress is paid to the position's written job description. (Doc. 44 at 5; see also Doc. 31-2 at 7-12.) However, "[e]ven assuming Plaintiff was entitled to accommodation, summary judgment is still appropriate because Plaintiff cannot demonstrate, through competent evidence, that a similarly situated non-pregnant employee received more favorable treatment." (Doc. 44 at 5; see also Doc. 31-2 at 10-12.) In the course of this argument, Defendant raises doubt about the validity of Plaintiff's various comparators.
Third, Defendant denies that Plaintiff's harassment claim can survive. So far, Plaintiff has only offered up "one instance of alleged harassment": "Sutton ... offered her candy with the knowledge that she was on insulin-resistance medication." (Doc. 44 at 8; see also Doc. 31-2 at 16-17.) Subsequently, in response to Plaintiff's prior filing, Defendant concedes that a second has been offered: Sutton, allegedly, explicitly denied any person could be both pregnant and a co-director. (Doc. 44 at 8.) Still, in Defendant's judgment, two stray remarks over a period of years are insufficient as a matter of law to support Plaintiff's
Finally, Defendant deals with Plaintiff's state IIED claim. Generally, it points out that its agents' conduct, even if colored in the worst of lights, was not so outrageous and extreme as to offend decency itself, the high standard required under Louisiana law for the Plaintiff to prevail on her final claim for intentional infliction of emotional distress. (Doc. 44 at 8-9; see also Doc. 31-2 at 17-19.) To Defendant, it matters greatly that Plaintiff "has never sought treatment of any kind for her alleged distress," undercutting the alleged extremity of her distress. (Doc. 44 at 8-9 (emphasis in the original).) With no such evidence presented, the two comments made by Sutton are "grossly insufficient to sustain [her] intentional-infliction claim." (Id. at 9.)
Attaching twelve documents to its First Opposition,
A method for "promptly disposing" of meritless actions, FED. R. CIV. P. 56 advisory committee's note (1937), Rule 56(a) permits a party to "move for summary judgment,
Since its adoption, Rule 26(a)(1) has provided:
FED. R. CIV. P. 26(a)(1)(i); Standley v. Edmonds-Leach, 783 F.3d 1276, 1281 (D.C.Cir.2015) (citing id.); cf. John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 DUKE. L.J. 547, 577 (2010) (discussing the history behind this mandatory disclosure provision). Rule 26(a)(1)'s purpose is "to accelerate the exchange of basic information about the case and to eliminate the paper work involved in requesting such information, and the rule should be applied in a manner to achieve those objectives." FED. R. CIV. P. 26 advisory committee's note (1993 amend.); see also Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir.1993) ("The federal rules promote broad discovery so that
In a seminal case focused upon the classification of surveillance video evidence, the Fifth Circuit construed this provision and offered a particular denotation of "impeachment evidence." Having described substantive evidence's distinguishing criteria, the court proceeded to
Yet another rule authorizes punishment for a party's failure to comply with Rule 26(a)(1). FED. R. CIV. P. 37(c)(1). In pertinent part, Rule 37(c)(1) reads:
Id.; Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir.2004) (quoting rule). In the making of this determination, courts consider numerous factors, including (1) "the surprise or prejudice to the blameless party," (2) "the ability of the offender to cure any resulting prejudice," (3) "the amount of disruption to the trial that would result from permitting the use of the evidence," and (4) "the bad faith involved in not producing the evidence at an earlier date." Spearman Indus. v. St. Paul Fire & Marine Ins. Co., 138 F.Supp.2d 1088, 1094 (N.D.Ill.2001); accord, e.g., Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx. 705, 713 (9th Cir.2010) (citing to David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.2003)). Many courts have deemed Rule 37(c)(1)'s exclusionary sanction as "mandatory." Falconer v. Penn Mar., Inc., 421 F.Supp.2d 190, 207 (D.Me. 2006).
In so doing, these courts — and Defendant here, (Doc. 44 at 4; Doc. 58 at 5) — have overlooked the safety valve written into Rule 37(c)(1). Its second sentence explicitly allows a court to substitute its exclusory sanction with any "other appropriate" punishments. FED. R. CIV. P. 37(c)(1) (referencing the sanctions listed in Rule 37(2)(A) as nonexclusive possibilities); Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir. 2001) (describing Rule 37(c) as affording "wide latitude"). Generally, courts should "carefully consider Rule 37(c), including the alternate sanctions available, when imposing exclusionary sanctions that are outcome determinative."
Enacted in 1978, the PDA added new language to the definitions subsection of Title VII, the part of the Civil Rights Act of 1964 that forbids certain forms of discrimination by covered employers. Young v. UPS, ___ U.S. ___, 135 S.Ct. 1338, 1344, 191 L.Ed.2d 279 (2015); see also Hall v. Nalco Co., 534 F.3d 644, 647 (7th Cir.2008). One clause clarifies that discrimination "because of sex" or "on the basis of sex" verboten under Title VII includes "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k); Coleman v. Court of Appeals, ___ U.S. ___, 132 S.Ct. 1327, 1340 n. 2, 182 L.Ed.2d 296 (2012) (quoting id.). The second reads: "[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k); Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir.2011) (quoting id.). A plaintiff may prove such disparate treatments claims by "either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting
Echoing Title VII, Louisiana has declared it unlawful for "an employer to intentionally discriminate against an individual with respect to his compensation or his terms, conditions, or privileges of employment, because of the individual's sex." LA. R.S. § 23:332(A). As a consequence of these laws' shared scope, as Defendant notes, (Doc. 31-2 at 2 n.2), "Louisiana courts have looked to federal jurisprudence to interpret Louisiana discrimination laws," King v. Phelps Dunbar, L.L.P., 743 So.2d 181, 187 (La.1999). As one would expect, this state's courts have employed the same McDonnell Douglas framework applicable to PDA discrimination claims, White v. Golden, 982 So.2d 234, 242 (La. Ct.App.2008); Motton v. Lockheed Martin Corp., 900 So.2d 901, 909 (La.Ct.App. 2005); cf. Duet v. Martin Marietta Corp., 720 So.2d 1290, 1293 (La.Ct.App.1998) (applying the test to a claim of age discrimination), and crafted a four-part test for sexual harassment identical to the federal variant, White, 982 So.2d at 243-44. Naturally, therefore, a plaintiff who fails to meet his or her burden under Title VII — or who succeeds in doing so — will simultaneously fail to satisfy — or concurrently demonstrate — the prerequisites set forth in Louisiana law.
In contrast, Plaintiff's IIED claim arises entirely from state tort law. As the Supreme Court of Louisiana has explained,
White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991); accord Prest v. La. Citizens Prop. Ins. Corp., 125 So.3d 1079, 1089 n. 5 (La.2012). This standard is undeniably high, "outrageous" and "extreme" conduct "go[ing] beyond all possible bounds of decency, and ... atrocious and utterly intolerable in a civilized community." White, 585 So.2d at 1209 (relying on the RESTATEMENT (SECOND) OF TORTS § 12 (5th ed. 1984)). "Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities"; "[p]ersons 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.; see also Labove v. Raftery, 802 So.2d 566, 578 (La.2001) (quoting id.). For more than two decades, Louisiana's courts have unwaveringly adhered to this unusually strict standard. Labove, 802 So.2d at 578.
Defendant's assault on the Ivy Declaration can pass no muster for any number of reasons, each independently sufficient.
First, the Ivy Declaration arguably impeaches Defendant's factual
Alternatively, regardless of its classification as impeachment, substantive, or hybrid evidence,
First, as Defendant seemingly recognizes, (Doc. 58 at 8-11), much of the Ivy Declaration divulges facts or factual allegations which supplement Plaintiff's prior points and which were readily within Defendant's purview. Ivy, after all, only repeats and further substantiates the allegations that Plaintiff has made in her complaint and which Defendant has already attacked in the MSJ. It cannot be truly surprised that Plaintiff found someone to
In this regard, this Court finds Chiasson instructive. There, plaintiff was wholly "unaware that any recorded evidence or statements existed," Lucas v. City of Shelby, 246 F.Supp.2d 516, 524 (N.D.Miss.2002) (distinguishing Chiasson), and the defendant had refused to respond completely to a specific interrogatory asking about videotapes, Chiasson, 988 F.2d at 514; see also Harrison v. Taiwan Super Young Co., No. 95-55745, 1997 U.S. App. LEXIS 274, at *5, 1997 WL 3627, at *2 (9th Cir. Jan. 2, 1997) (so distinguishing id.). Just as critically, both parties conceded the videotape's "fundamental effect on the outcome of the litigation" and the "obvious[ness]" of its effect on the issue of damages. Chiasson, 988 F.2d at 518; see also Caskey v. Man Roland, Inc., No. 94-20482, 1996 U.S. App. LEXIS 45287, at *12, 1996 WL 197370, at *4 (5th Cir. Mar. 18, 1996) (emphasizing these distinctions). Arguably, its underlying principle "assumes that the surveilling party intends to use the surveillance
In shotgun fashion, Defendant attacks the Ivy Declaration for other reasons as well, including hearsay and lay opinion. (Doc. 44 at 3.) However, Ivy's opinions and alleged facts appear based on his personal experience as a director and co-director, which reasonably include supervision of co-director and cashier activities as well as accommodation practices and policies, and is offered against Defendant by the latter's agent. Reasonably, if not indisputably, either fact arguably places Ivy's words outside the hearsay prohibitions in the Federal Rules of Evidence. FED. R. EVID. 801(d)(2)(A), 602; see also, e.g., In re Cornfield, 365 F.Supp.2d 271, 277 (E.D.N.Y. 2004) (observing that the former "provides for several types of party-opponent admissions — such as adoptive admissions, or statements made by an agent"); FED. R. EVID. 602 advisory committee's note ("This rule does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement. Rules 801 and 805 would be applicable."). Additionally, all parts of the Ivy Declaration appear to be rationally based on Mr. Ivy's own perception as a former director and manager of cashiers and co-directors and as a co-director himself, and the Plaintiff asserts and the declaration bears out that its purpose is to cast doubt on Winn-Dixie's argument that pregnancies are accommodated. So construed, the Ivy Declaration contains no assertions of knowledge beyond the scope of Ivy's employment as a manager and readily fall within the exception for lay opinion set in rule 701. FED. R. EVID. 701; cf. FED. R. EVID. 701 advisory committee's note ("The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact.").
Based on the foregoing reasons, this Court will consider the Ivy Declaration to the extent that it buttresses the factual allegations previously made by Plaintiff in her complaint and other filings.
Winn-Dixie argues that Martin has improperly brought the related state and federal law claims because she failed to administratively exhaust them with the EEOC and LCHR. To support this assertion, Winn-Dixie claims that although the EEOC charge was brought within the statutorily prescribed time, it did not allege she was subject to harassment or a hostile work environment. (Doc. 31-2 at 14.) On the issue of claim exhaustion, Martin attempts to rebut Winn-Dixie's assertion by stating that the court had already dismissed the discharge and retaliation claims because they had not been exhausted, and purposefully excluded the harassment and discrimination claims. (Doc. 38-1 at 1.) Plaintiff does not respond to Winn-Dixie's assertion that she did not properly articulate sexual harassment and the presence of a hostile work environment in her EEOC charge.
The LCHR and EEOC have a work-sharing agreement whereby they operate as each other's agents "for the purpose of receiving and drafting charges."
Conner v. La. Dep't of Health & Hosps., 247 Fed.Appx. 480, 481 (5th Cir.2007) (citations omitted); see also Price v. Choctaw Glove & Safety Co., Inc., 459 F.3d 595, 598 n. 7 (5th Cir.2006) (stating that in order to file suit under Title VII, a plaintiff first must file a charge with the EEOC within a certain time period ... "[i]n "deferral jurisdictions" [e.g. Louisiana], an extended 300-day period."). If and once the EEOC issues a right-to-sue letter to the party who has filed the EEOC charge, that party has 90 days to file a Title VII action.
While no formal LEDL charge was filed or proceeding adopted, an EEOC charge was evidently received on May 1, 2013, about 184 days after the latest indicated discrimination event. (Doc. 17-2.) By law, this act effected a simultaneous filling with the LCHR. On its face, this filing was made before Plaintiff's termination on April 26, 2013, and it readily meets the 300-day requirement for Louisiana. Juxtaposition with the termination date is irrelevant as to the discrimination, which occurred between "10-15-2012" and "10-30-2012." (Id.) Numerically, therefore, Plaintiff has met the time requirements for administratively exhausting her claims.
Winn-Dixie, however, argues more. Specifically, it contends that even if the time requirement is met, Martin should not be able to sue on sexual discrimination because she failed to properly articulate it in her charges, as Martin only brought up the lack of reasonable accommodation and dual-option of an LOA or demotion to cashier, thereby failing to suitably articulate her sexual harassment and hostile environment claims. (Doc. 31-2 at 4.) As Defendant rightly emphasizes, "Title VII requires employees to exhaust their administrative remedies before seeking judicial relief." Stone v. La. Dep't of Revenue, 590 Fed.Appx. 332, 337-38 (5th Cir. 2014). Such a charge must state "sufficient facts to trigger an EEOC investigation and to put an employer on notice of the[ir] existence and nature." Id. While Defendant maintains Plaintiff's charge, upon whose basis the Notice of Right to Sue issued, was insufficient to constitute exhaustion, this Court disagrees, its reasons three.
First, the Plaintiff did more than Defendant believes. Looking at the plain forms submitted, Martin checked the box and
Second, Defendant relies on an unduly broad construction of Stone. In Stone, the Plaintiff filed an EEOC charge prior to her resignation, alleging, Title VII racial discrimination. The Fifth Circuit affirmed the district court's dismissal of her suit based on an EEOC charge that fail[ed] to identify "facts ... that reasonably encompass[ed] her later claims for constructive discharge, disparate impact or disparate treatment." Stone, 590 Fed.Appx. at 338. Ostensibly applicable to Plaintiff's situation, Stone is, in fact, readily and easily distinguishable. There, the plaintiff brought suit on multiple issues, some of which were not alleged in her specific charge. Here, all the Defendants can say is that the issues at bar were not adequately described in the charge, not that they were materially different than the ones being brought. Indeed, the charge specifically states the bases of the present suit — pregnancy and retaliation on the bases of Plaintiff's alleged failure to complete essential job functions or receive a reasonable accommodation, (Doc. 38-5 at 15-20) — and cannot really be regarded as having omitted or mischaracterized the purported misconduct. Furthermore, the standard set forth in Stone is not as strict on laypersons filing EEOC charges as Defendant now holds it to be:
Stone, 590 Fed.Appx. at 332 (internal citations omitted). Finally, other circuits have accepted weak charges by considering facts alleged in the pre-complaint questionnaire. For instance, in B.K.B. v. Maui Police Dept., 276 F.3d 1091 (9th Cir.2002), the court ruled that Plaintiff had exhausted her claim by describing Defendant's harassing verbalizations in the questionnaire while only checking the boxes marked "race," "sex," and "harassment" on the charge. Like the Plaintiff in B.K.B., Martin alleged in the LCHR intake questionnaire that Winn-Dixie treated another similarly situated employee, Ms. Jeremy Lemoine, differently than it treated her. (See Doc. 31-4 at 34, 38.) Both the LCHR and the EEOC did have the pertinent data ;underlying the present complaint, even if Plaintiff's original submission was not perfect in terminology and description.
Third, interests of justice and efficiency, the virtues enthroned in Rule 1, strongly favor these claims' adjudication. A "complainant may [only] amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint, and new complaints must be filed within 300 days of the alleged discriminatory acts. EEOC, COMPLAINT PROCESSING PROCEDURES (emphasis added), available at http.//www.eeoc.gov/eeoc/publications/fedprocess.cfm.
Unwilling to pay heed to formality for its own sake, this Court does not find any merit in Defendant's exhaustion argument.
As Plaintiff recognizes, Young essentially affirmed a preexisting standard for a plaintiff alleging "that the denial of an accommodation constituted disparate treatment." Young, 135 S.Ct. at 1345 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); see also Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.2003) (observing that at summary judgment "[e]vidence demonstrating that the employer's explanation is false or unworthy of credence, taken together with the plaintiff's prima facie case, is likely to support an inference of discrimination even without further evidence of defendant's true motive."). A plaintiff, it explained, "may make out a prima facie case by showing ... [1] that she belongs to the protected class, [2] that she sought accommodation,[3] that the employer did not accommodate her, and [4] that the employer did accommodate others similar in their ability or inability to work." Young, 135 S.Ct. at 1354; cf. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1996). Of course, a plaintiff can also show that she was a victim of intentional discrimination by proceeding under the direct method. See Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 504 (7th Cir. 2004). Generally, "[d]irect evidence is evidence that, if believed by the trier of fact, would prove discriminatory conduct on the part of the employer without reliance on inference or presumption." Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 720 (7th Cir.2005).
Defendant's attack on Plaintiff's Title VII case is threefold. First, Defendant claims: "[P]laintiff has not presented any direct evidence of discrimination." (Doc. 31-2 at 7.) Next, Winn-Dixie argues that Plaintiff was not qualified for her post. (Id. at 8.) Third, it insists that Plaintiff cannot show she was denied a reasonable accommodation that was offered to other similarly situated persons. (Id. at 10-11; see also Doc. 44 at 5-7.) In other words, Defendant concedes that Plaintiff has articulated the first two elements — her membership in a protected class and her request for an accommodation — of the PDA's required prima facie case.
Subject to the constraints imposed by Rule 56, Defendant has not credibly undermined "the mosaic of circumstantial evidence from which a reasonable juror could infer intentional discrimination" under the disparate approach and in violation of the PDA. Serednyj, 656 F.3d at 549. One category of circumstantial evidence "consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other
First, Plaintiff does offer up some direct evidence of discrimination. The undisputed (for purposes of summary judgment)
Second, Defendant has misconstrued the third step of the McDonnell Douglas test, which only requires that the Plaintiff prove the Defendant-mover "did not accommodate" her, not whether it was reasonable not to do so. Young, 135 S.Ct. at 1354.
Third, Plaintiff's comparators could lead a reasonable factfinder to find that Defendant "did accommodate others similar in their ability or inability to work," Young, 135 S.Ct. at 1354, the final step of Plaintiff's prima facie case. Defendant first argues that two of Plaintiff's comparators — Mses. Andrea Lang and Dody Vidrine — cannot be so regarded. (Doc. 31-1 at 12.) However, Defendant overstates its case. While Plaintiff did acknowledge that Ms. Lang's favorable treatment during her pregnancy did "not necessarily" support her discrimination claim, the very fact that Ms. Lang was permitted to work as store director while pregnant could be read to undercut Defendant's position. Quite simply, Ms. Lang's favorable treatment indicates that the pregnancy-related restrictions adduced to justify her termination cannot affect the performance of an essential job function. Similarly, a second comparator, Ms. Vidrine, was never fired. As she was unable to lift eighty pounds and yet did not lose her position, she could too reasonably count against Defendant, rather than in its favor.
Two problems characterize Defendant's attack on Plaintiff's next comparator, Mr. Drew Robertson ("Robertson"). First, Winn-Dixie argues that Martin's deposition concerning Robertson is "unsupported hearsay." (Doc. 31-2 at 10.) Indeed, all of Martin's knowledge of these circumstances is based on what her friend, the Burbank store floral manager told her, which she allegedly heard from Robertson. (Doc. 31-3 at 21-22.) Thus, the statements appear to be classic hearsay within hearsay and therefore, must conform to hearsay exceptions to be admissible. FED. R. EVID. 801(d)(2). This argument, however, fails. Under 801(d)(2)(D), neither Robertson's alleged statement to the florist nor her statement to Martin are hearsay since (1) Robertson and the florist were employees of Winn-Dixie at the time the statements were made, (2) as individuals working in the same store, Robertson and the florist had a work relationship that clearly falls within the scope of the subject spoken of, and (3) the statements equally regard Robertson's alleged accommodation which is offered to refute Winn-Dixie's statements
More substantively, Robertson is a colorable, if not perfect, comparator. In contesting this issue, i.e. the merits of Martin's use of Robertson as a comparator, Winn-Dixie argues that Robertson is not similar enough to Martin since he did not receive any preferential treatment under "nearly identical circumstances." (Doc. 31-2 at 10 (citing Luna v. Corrections Corp. of Am., 469 Fed.Appx. 301, 304 (5th Cir. Mar. 16, 2012).) Because Martin does not respond, the question is whether Winn-Dixie meets their initial burden of showing that no genuine issue of fact exists as to whether Robertson is not similar enough.
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir.2009) (emphasis added).
Fourth, the co-director description, as described and characterized, undercuts the Defendant's stated reason for Plaintiff's termination: that accommodating Martin would have placed an undue burden on the Prairieville store because of the "importance of her ability to lift items" as co-director, "the length of the restrictions... and the time of year that she was requesting the accommodation." (Doc. 31-2 at 11; Doc. 44 at 6.) Naturally, "[i]n the context of a discrimination claim, in determining the essential functions of a position, a court may consider, but is not limited to, evidence of the employer's judgment as to which functions are essential, and the written job description in effect before the employee interviewed for the position." Based purely on the job description given by Defendant, one can conjecture that a reasonable jury would find against Defendant, deeming its stated reason for not fully accommodating Plaintiff like it did others with comparable physical limitations to be purely and forbidden pretext. As noted above, being able to personally and physically lift items was never designated as an "essential" or "primary" important aspect of the co-director position. (Doc. 31-4 at 11-13.) Nothing in the Handbook or in Winn-Dixie's testimony that precludes co-directors from asking for help to lift up to eighty (80) pounds or from their using mechanical aides to do so. (Id.) Just as noticeably, a co-director is only expected to lift, push, or pull up to eighty pounds between 1% and 33% of his or her shift and is expected to sit ("frequently," defined as between 34-66%") and to stand and walk ("continuously," defined as between "67-100%") far more frequently (and regularly). (Id.) Defendant's counsel, moreover, seemingly conceded as much during Sutton's deposition, objecting: "There's
Finally, Defendant's offer of a demotion could undercut their stated reason's believability. Though willing to demote her to cashier over the same time period, Defendant never does explain how that position would involve lifting less. (Doc. 31-4 at 55.) Indeed, cashier is a position that may involve lifting requirements above Martin's stated restrictions, as the Ivy Declaration expressly states. (Doc. 38-4 at 13 (stating cashier lifting requirements are in excess of 10 pounds).) The evidence shows only that the Prairieville store may have been inconvenienced during the Thanksgiving/Christmas holiday season where other employees whose primary job it was to stock shelves and put together displays would not have received the generous help Martin had apparently been giving them. In addition, accepting Plaintiff's pleaded evidence as true, it does seem like other stores have accommodated other co-director with similar physical handicaps.
For these reasons, Martin defeats summary judgment regarding her prima facie case of pregnancy discrimination. The evidence shows that she is an undisputed member of a protected class, who sought and was denied accommodation. Meanwhile, genuine issues can be discerned as to the existence of deferential treatment in light of Robertson and Ivy as Martin's reasonable, if not indisputable, comparators
Because Louisiana law employs an identical standard for adjudicating pregnancy discrimination claims, see supra Part IV.D. and because this Court has found the record precludes a granting of summary judgment as to Plaintiff's Title VII claims, see supra Part V.B.2-3, this Court will leave Plaintiff's state law discrimination claims for a jury's review.
Two remarks form the universe entire of Plaintiff's harassment claims under both
While the latter claim can constitute circumstantial evidence of discrimination, Title VII harassment claims are analyzed differently than Title VII harassment ones. As noted above, see supra Part IV.C, an environment's hostility is measured by the totality of the circumstances, Harris v. Forklift Systems, Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993), a longstanding interpretation not reversed by the PDA's adoption, see supra Part IV.B. This test incorporates subjective and objective elements: "The plaintiff must subjectively perceive the harassment as sufficiently severe or pervasive, and this subjective perception must be objectively reasonable." Hancock v. Barron Builders & Mgmt. Co., 523 F.Supp.2d 571, 575 (S.D.Tex.2007). "The mere utterance of an epithet which engenders offensive feelings in an employee is insufficient, without more, to support Title VII liability," Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996), and "more than a few isolated incidents" must be evidenced for harassment verboten under Title VII to be demonstrated, Davis v. Potter, No. 03-1796, 2005 U.S. Dist. LEXIS 33794, at *18, 2005 WL 3359180, at *6 (W.D.La. Dec. 9, 2005).
Here, Sutton's pregnancy-related comment is the only one by an agent of Winn-Dixie that Martin alleges is sexually discriminatory. Wedded to the totality test, courts have simply not found such off hand remarks to be protected under Title VII; far more has long been required. Lauderdale v. Tex. Dep't of Crim. Justice, 512 F.3d 157, 164 (5th Cir.2007). With Plaintiff's harassment claims predicated on at most two stray remarks, they cannot stand, and Rule 56 compels summary judgment in Defendant's favor as to her meager harassment allegations.
As to Plaintiff's state law IIED claim, Defendant argues that (1) there is no evidence of their intent to inflict severe emotional distress or knowledge that such would result, (2) there is no evidence of severe distress and, (3) even assuming discriminatory conduct occurred, it did not rise to the level of outrageousness, as a matter of law. (Doc. 31-2 at 17.) Martin seems to respond that Winn-Dixie knew or should have known their actions would cause her emotional distress since (1) they forced her into leave, (2) reduced her income (via requirement of FMLA leave and disability), and (3) obviously created uncertainty regarding her then long-terms good standing with the company. (Doc. 38-1 at 18.) She also argues that she did suffer emotional distress because "she was pregnant, under financial distress, and extremely worried about losing her health insurance," which resulted in drug treatment for high blood pressure. (Id.) Finally, Martin avers that reasonable jurors could conclude Winn-Dixie's requirement for her
Under Louisiana law, conduct rises to the level of outrageousness, only where it "go[es] beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community," and "[l]iability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" or "where the actor has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional stress." White, 585 So.2d at 1210 (citing RESTATEMENT (SECOND) OF TORTS § 46, cmt. g). As such, liability has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time.
Applying this law, Plaintiff's claim fails Rule 56's test for two reasons.
First, however insensitive Sutton and Defendant may seem, it was Martin who first brought her pregnancy to Winn-Dixie's attention, and only within a month of finding out. Nevertheless, she, as a reasonable woman, might agreed to take her OB/GYN's recommendation to adhere to work-hour and lifting restrictions. In many ways, Defendant's actions were run of the mill. Presented with restrictions which Winn-Dixie argues necessarily disqualified Plaintiff as a co-director, Defendant allowed her to take and extend leave and warned her of the consequences of her failure to take a demotion — termination in the case she is replaced before she returned. (Doc. 31-4 at 45.) In these circumstances, courts have declined to find conduct akin to Defendant's as outrageous even where the employer fired the Plaintiff just before or even the day of delivery of her child. Pate v. Pontchartrain Partners, LLC, No. 13-6366, 2014 U.S. Dist. LEXIS 157743, at *7-8, 2014 WL 5810521, at *4 (E.D.La. November 7, 2014) (discussing several other district court cases involving Plaintiff's in good and below-average standing with the employer). Indeed, after reviewing national jurisprudence, the Supreme Court of Louisiana chose to cite one case of employment termination during pregnancy as an example of conduct that was "merely tortuous [sic] or illegal [and] does not rise to the level of being extreme and outrageous." Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1025 (La.2000).
Even assuming Defendant's conduct was outrageous and extreme, Plaintiff has testified that she felt horrible, humiliated, and upset, but she has not shown that "a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case," Aronzon v. Sw. Airlines, No. 03-394, 2004 U.S. Dist. LEXIS 249, at *18, 2004 WL 57079, at *6 (E.D.La. Jan. 9, 2004) (quoting Norred v. Radisson Hotel Corp., 665 So.2d 753, 756 (La.Ct.App.1995), and, Magee v. Pittman, 761 So.2d 731, 752 (La.Ct.App.2000)). Over the entire course of discovery, she has produced no evidence of a single doctor's visit or a single prescription for such potentially serious conditions of emotional turmoil. One prescription — for high blood pressure — has been adduced, but the Fifth Circuit has itself discounted such a medical problem as evidence of extreme emotional distress under a similar Texas law. See Carroll v. Hoechst Celenese Corp., No. 98-41056, 1999 U.S. App. LEXIS 39562, at *23-24, 1999 WL 1330688, at *9 (5th Cir. December 17, 1999) (holding that a woman's mild levels of fear, anxiety, fatigue, high blood pressure, and depression did not constitute severe emotional distress).
In accordance with Rule 56, courts must isolate and dispose of factually unsupported
Accordingly, for the foregoing reasons, this Court DENIES Defendant's MSJ as to Plaintiff's discrimination claims under federal and state law and GRANTS Defendant's MSJ as to Plaintiff's harassment and IIED claims.
