SHELLY D. DICK, District Judge.
This matter is before the Court on the Motion for Summary Judgment
Superior is a company owned and co-founded by Debra Guerin ("Guerin") that employs health care professionals to deliver at-home services to patients. Superior maintains an office on Bluebonnet Boulevard in Baton Rouge, Louisiana where its employees perform administrative work. Superior contends that it has never employed fifty (or more) employees at any particular time and note that all employees working at Superior's Bluebonnet office are women.
Plaintiff was hired by Superior on January 9, 2014 to perform filing at the Bluebonnet office at the rate of $12/hour. Once Superior learned that Plaintiff had data entry experience, Plaintiff's job duties were expanded, and she was given a pay increase to $13/hour. Upon her initial employment, Plaintiff chose not to obtain health insurance through Superior as she remained on her parents' health plan. However, shortly thereafter, Plaintiff was ineligible to remain on her parents' plan, so she approached Guerin for a pay increase that would render her eligible for health insurance through Superior. Guerin granted this request and increased Plaintiff's pay to $15/hour so she could participate in Superior's health insurance plan.
For the entirety of Plaintiff's employment with Superior, Plaintiff was supervised by Guerin and Jennifer Rouillier ("Rouillier"), both of whom are working mothers.
Superior has written employment policies and provides to employees an Employee Code of Conduct which notes that, among other things, insubordination and personal telephone use during work hours can lead to termination. Plaintiff admits that she received and read these policies and the Employee Code of Conduct.
Initially, Plaintiff did well at Superior, and she received a favorable performance review just weeks after her start date. Plaintiff received a second favorable performance review three months after her employment began. Around this time, Plaintiff asked Guerin if she could be moved from the back office to a front office in the building, and Guerin granted this request. However, subsequent to this move, Plaintiff and Superior agree that Plaintiff's relationship with Guerin went "downhill."
Plaintiff admits that she regularly violated company policy regarding insubordination and personal telephone use by texting family, friends, and co-workers throughout the work day and that Guerin repeatedly counseled her about these violations.
On January 21, 2014, Plaintiff received another performance evaluation that was favorable but included a note that Plaintiff was not following Superior's rule regarding texting in the workplace. Despite this notation, Plaintiff admits that she continued to use her cellphone during work.
Guerin became aware of Plaintiff's pregnancy between December 2014 and January 2014. Plaintiff testified that Guerin was "nice" to her upon learning of her pregnancy and that Guerin never said anything negative about Plaintiff's pregnancy.
Superior contends that, following Plaintiff's pregnancy, her telephone use violations continued, and she also began violating the policy that employees clock out to eat meals. Plaintiff acknowledged that, on one occasion, she was training an employee while eating a plate of food.
As Plaintiff allegedly continued to commit these violations despite repeated admonitions, Superior contends Guerin began to document Plaintiff's policy violations. Between February 18, 2014 and June 6, 2014, Superior contends Guerin documented nine separate company policy violations involving insubordination, inappropriate cellphone usage, eating meals at her desk, and falling behind in job duties.
Plaintiff contends she was never shown any of these alleged write-ups, she disputes that she was ever written up during her employment with Superior, and she believes these write-ups were created after she was fired.
Superior claims that, in an effort to motivate a change in Plaintiff's behavior since counseling had not worked, Guerin gave Plaintiff a positive performance evaluation in April 2014.
An Employee Complaint Form prepared by Guerin on June 9, 2014 indicates that Plaintiff went to Guerin's office and advised that she "was too stressed out and needed to quit. She said it wasn't good for her or the baby."
Two days after the June 9 meeting where Plaintiff allegedly told Guerin she wanted to quit, Plaintiff was in a car accident, and she stayed in the hospital overnight although she did not sustain any injuries.
Rouillier attested that she did not realize that Plaintiff was in the hospital when she sent the above text message.
Following her termination, Plaintiff sought unemployment compensation benefits. When Superior was asked to document why Plaintiff was terminated, it noted the various company policy violations mentioned herein, but it also stated that Plaintiff was "very emotional d/t pregnancy."
Superior maintains that it has never discriminated against pregnant employees, considering both Guerin and Rouillier are working mothers, and Rouillier was pregnant and gave birth while working for Superior. Superior contends that any pregnant employees who have been terminated have been so because of legitimate, non-discriminatory reasons and not due to pregnancy. Notably, Plaintiff admits that she never witnessed Guerin treat other pregnant employees poorly and did not believe that Guerin had a problem with anyone's pregnancy but hers.
Plaintiff maintains that Superior has only now produced "a litany of disciplinary write-ups that were never shared with [Plaintiff]."
Plaintiff contends that the best evidence of her work performance is her evaluations, which were generally satisfactory. While Plaintiff acknowledges she was not a perfect employee, she contends that the performance evaluations completed by Guerin demonstrate a positive job performance by an employee deemed worthy of raises. Importantly, Plaintiff claims that the evaluations are mostly remarkably devoid of references to these disciplinary write-ups which should cast doubt on their veracity and timing.
Plaintiff acknowledges that the January 21, 2014 evaluation notes that she engaged in too much texting at work, and reflects that disciplinary action could occur, but states that all other categories were positive. Plaintiff's April 13, 2014 evaluation reveals a rating of "excellent" or "good" in every category, which Plaintiff argues demonstrates an improvement from the previous year. Additionally, there is no reference to cellphone use in the April 2014 evaluation, and Plaintiff contends she received two raises during this time period. Thus, Plaintiff contends her evaluations raise serious questions regarding the veracity of these never-seen write-ups. Plaintiff maintains that, if her conduct as expressed in the write-ups was so flagrant, surely the performance evaluations would have reflected the same. Further troubling, Plaintiff notes that, although the disciplinary counseling form used by Superior contains a line for the employee's signature, Guerin admits that she never presented a write-up to Plaintiff to review or sign.
Plaintiff contends that, along with the termination text message, there are other examples of Guerin's conduct that Plaintiff believes constitutes pregnancy discrimination. For example, Plaintiff points to Guerin's deposition testimony that, upon learning of Plaintiff's pregnancy, she was "just like, oh, my goodness, everybody is pregnant."
Plaintiff filed suit against Superior alleging claims of pregnancy discrimination under Title VII of the Civil Rights Act of 1964
"The court shall grant summary judgment if 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."
Notably, "[a] genuine issue of material fact exists, `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"
The Pregnancy Discrimination Act amended Title VII to include pregnancy discrimination within the definition of sex discrimination.
Plaintiff contends the text message terminating her constitutes direct evidence of pregnancy discrimination as it demonstrates that her pregnancy was, at least, a motivating factor for her termination. Defendant contends that, read in context, the text message does not constitute direct evidence of discrimination, and Plaintiff is not relieved of the burden of presenting a prima facie case of pregnancy discrimination, which it claims she has failed to do.
The Court finds that Plaintiff's evidence is sufficient to create a genuine issue of material fact that requires trial of her claim of pregnancy discrimination. The language of the text message specifically references terminating Plaintiff as "best for [her] and the baby" and notes that Plaintiff is "too stressed working here and can cause harm to the baby."
Drawing factual inferences in favor of the Plaintiff, the termination text message constitutes credible direct evidence, because, if believed, it proves Superior's discriminatory animus without inference or presumption.
The text message from Guerin is direct evidence of discrimination because the statement was "(1) related to the protected class of persons of which the Plaintiff is a member, (2) proximate in time to the employment decision, (3) made by an individual with authority over the employment decision at issue, and (4) related to the employment decision at issue."
While Superior has produced evidence of its legitimate, nondiscriminatory reasons for terminating Plaintiff's employment, Guerin's text message is direct evidence of pregnancy discrimination and shifts the burden of proof to Superior to show that its legitimate reasons, standing alone, would have induced it to make the same decision. Further, Plaintiff has also presented summary judgment evidence that, if believed, could cast doubt on the veracity and timing of the disciplinary write-ups as compared against Plaintiff's concurrent mostly favorable performance evaluations and raises. It is the task of the jury, not of the Court on summary judgment, to weigh the credibility of the parties and to believe, or disbelieve, Superior's evidence that it would have made the same decision in the absence of Plaintiff's pregnancy.
Summary judgment is likewise denied on Plaintiff's Louisiana Employment Discrimination Law ("LEDL") claim, which is subject to the same reasoning and analysis set forth under Title VII. The scope of the LEDL is the same as Title VII and, therefore, claims under the LEDL are analyzed under the Title VII framework and jurisprudential precedent.
Plaintiff contends that, at the time of the termination text message, Superior knew of her personal problems, the difficulties in her pregnancy including gestational diabetes, and that she had just been admitted to the hospital following a car accident. Plaintiff further contends that, sending her this text message, under the circumstances, constitutes intentional infliction of emotional distress under Louisiana law as it goes beyond all possible bounds of decency and should be regarded as utterly intolerable in a civilized society.
Superior moves to dismiss Plaintiff's IIED claim, arguing that the text message does not rise to the high level of outrageous conduct required by Louisiana law and directs the Court to Rouillier's attestation that, when she sent the text message, it was "not [her] understanding that [Plaintiff] was in the hospital."
To meet her summary judgment burden to establish a material fact issue regarding her intentional infliction of emotional distress claim, Plaintiff must provide evidence "`that (1) the conduct [of defendant] was extreme and outrageous; (2) the emotional distress suffered was severe; and (3) the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result.'"
Plaintiff has cited no jurisprudence finding that termination of employment under similar circumstances or late in one's pregnancy could be considered extreme and outrageous conduct. In Nicholas v. Allstate Ins. Co.,
Further, assuming that Superior's text message and termination of Plaintiff while she was in the hospital following a car accident could be considered extreme and outrageous, Plaintiff has produced no evidence to create a material fact issue as to the second or third prongs of the test for an intentional infliction of emotional distress claim. As to the second prong,
[a] review of the Louisiana jurisprudence indicates that "severe emotional distress" may be found "where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case." "A non-exhaustive list of examples of serious emotional distress includes neuroses, psychoses, chronic depression, phobia, and shock."
Plaintiff has pointed to no testimony or evidence suggesting that her mental state reached the level of serious emotional distress as set forth above. Further, Plaintiff has not alleged that she suffered any complications in her pregnancy due to her termination. She has also failed to direct the Court to evidence that she ever saw a doctor to treat any form of emotional distress. As in Aronzon,
Similarly, there is no evidence in the record indicating that Superior desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from Plaintiff's termination under the circumstances. Accordingly, Superior is entitled to summary judgment in its favor as a matter of law on Plaintiff's state law intentional infliction of emotional distress claim.
Plaintiff alleged a claim under the FMLA for retaliation. Defendant moved for summary judgment on this claim arguing that it is not subject to the FMLA as it has never employed the requisite fifty employees. Plaintiff failed to address this claim in her Opposition and has, therefore, failed to present a material issue of fact in dispute regarding this claim.
For the reasons set forth above, Defendant's Motion for Summary Judgment
