Judge Terri F. Love
Plaintiffs/Relators seek review of the trial court's July 19, 2016 judgment granting Hensley R. Lee Contracting, Inc. and Tom Hayden ("Mr. Hayden") (collectively "HRL") partial summary judgment and dismissing with prejudice "all claims of racial discrimination, hostile work environment, intentional infliction of emotional distress, and all other claims based on racial animus, including those that fall under the Louisiana Unfair Trade Practices Act." We find the motions for partial summary judgment do not address Plaintiffs' claims as pled in their petition. Based on the circumstantial evidence presented and the need for additional discovery, we also find that genuine issues of material fact exist. Accordingly, we grant the writ, reverse the trial court judgment granting partial summary judgment, and remand the matter for proceedings in line with this Court's writ disposition.
Plaintiffs allege the underlying facts as follows: In 2011, the Army Corps of Engineers set out bids for a levee project in Algiers. After the bidding process, the project was awarded to defendant Southern Services & Equipment ("SSE"), who subcontracted the job to defendant Hensley R. Lee Contracting, Inc.
According to Plaintiffs, when HRL subcontracted with Titan, Defendants lacked Titan's levee building experience. Titan worked for approximately one month on the project before it was terminated. Plaintiffs allege that Defendants used the time Titan was employed to procure Titan's trade practices and plans as well as to learn the levee building skills needed to complete the project. Additionally, Plaintiffs claim that SSE and HRL racially harassed Plaintiffs, created a hostile work environment, prevented Plaintiffs from performing their work, and questioned their abilities and work performance. Furthermore, Plaintiffs contend that SSE and HRL's actions were intended to drive Titan off the project. Without Titan, the proceeds from the levee project would be split between SSE and HRL, thereby increasing their individual profit shares. In fact, after the project was completed, the Army Corps of Engineers issued all payments on the contract owed to SSE, who in turn paid HRL. Titan, on the other hand, never received payment for its work.
Titan and Plaintiffs filed separate suits against SSE, HRL, and their owners which were later consolidated. The petitions alleged SSE and HRL acted "in collusion to drive [Titan]" off the levee project in violation of the Louisiana Unfair Trade Practices Act ("LUTPA") and included claims of intentional infliction of emotional distress. Thereafter, HRL and Mr. Hayden filed separate motions for partial
On appellate review, courts consider de novo the granting of summary judgment. Brunet v. Fullmer, 00-0644, p. 3 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241. Appellate courts also use the same criteria that governs the trial court's consideration of "whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Weintraub v. State Farm Fire & Cas. Co., 08-0351, p. 2 (La.App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196-97, quoting Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.
"[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). The party filing the summary judgment motion bears the burden of proof. La. C.C.P. art. 966(D)(1). "[I]f the mover will not bear the burden of proof at trial on the issue," the mover need only "point out to the court the absence of factual support for one of more elements essential to the adverse party's claim, action, or defense." Id. "Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751, quoting South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La. App. 3rd Cir. 1991).
We begin by addressing a procedural aspect of HRL's partial summary judgment motion. The basis for HRL's request for partial summary judgment fails to address the actual claim asserted in Plaintiff's petition. Plaintiffs' petition asserts a claim for unfair trade practices and deceptive acts in knowing violation of LUTPA. The acts and practices that Plaintiffs argue were unfair and deceptive include allegations of racial discrimination and derogatory comments, creating a hostile work environment, and intentionally inflicting emotional distress. Plaintiffs aver that Defendants' actions were unfair and deceptive within the meaning of LUTPA because they were carried out as part of a
Inexplicably, HRL fails to address Plaintiffs' LUTPA claims and instead argues for partial summary judgment based on nonexistent employment law claims that Plaintiffs never raised.
We highlight this point to draw a distinction between Plaintiffs' actual theory of recovery and HRL's mischaracterization of Plaintiffs' theory of recovery. HRL moved for partial summary judgment on grounds that Plaintiffs do not have claims for racial discrimination and hostile work environment because HRL was not their employer. Thus, the premise of HRL's argument is Louisiana employment law. As Plaintiffs contend, HRL relies on the false assumption that Plaintiffs asserted an employment discrimination claim in a veiled attempt to achieve the dismissal of what is in fact evidence (not legal claims) of racial discrimination and hostile work environment.
Even if this Court were to assume that Plaintiffs raised an employment law claim, HRL's argument is undermined by Plaintiffs' admissions and HRL's own actions. Plaintiffs willingly acknowledge that HRL was not their employer. Thus, had they alleged an employment law claim, Plaintiffs would have no reason, based on their own admission, to oppose partial summary judgment. Likewise, HRL could have filed exceptions for no cause of action and/or right of action under state employment law instead of a motion for partial summary judgment. Yet, the only exceptions HRL filed were exceptions of no cause of action and/or right of action under LUTPA.
HRL's motion marks the first time issues of employment law have been raised or argued. While summary judgment may be rendered only on those issues set forth in the motion under consideration pursuant to La. C.C.P. art. 966(F), the motion itself does not dictate the nature of a petitioner's claim or the theory of recovery upon which a petitioner seeks redress. Simply because HRL argued in their motion for the dismissal of issues of racial discrimination and hostile work environment under Louisiana Employment Discrimination Law, La. R.S. 23:301, et seq. (which may satisfy article 966(F)) that does not mean Plaintiffs have actually pled a cause of action under La. R.S. 23:301 et seq.
We know of no statute or case law by which an argument raised in a summary judgment motion determines the nature of a petitioner's claim. Rather, the "nature of a claim is determined by the
According to Plaintiffs, Defendants' harassed, intimidated, and discriminated against Plaintiffs for the purpose of driving Titan off the levee project for Defendants' economic benefit. In light of Defendants' alleged conduct, Plaintiffs' petition asserts claims of unfair and deceptive trade practices in violation of LUTPA and of intentional infliction of emotional distress. Further, Plaintiffs argued in their opposition to HRL's motion and reiterated at the hearing that the nature of their claim arises under LUTPA as that was always their intent when stating the alleged facts in their petition. Again, Plaintiffs' admission that HRL was not their employer further underscores that it has always been Plaintiffs' assertion that this is an unfair trade practices case. Therefore, a finding that HRL's motion properly raised issues of employment law to satisfy La. C.C.P. art. 966(F) and that the trial court addressed those issues in its judgment is irrelevant where Plaintiffs have not alleged employment law claims.
We find HRL's request for dismissal of the racial animus and hostile work environment issues based on non-existent employment law claims is error. Thus, granting partial summary judgment was incorrect. In that the motion fails to address Plaintiffs' LUTPA claims, it is unresponsive and therefore, summarily denied.
We address in this part what we find is a legal error in the trial court's analysis on summary judgment. Plaintiffs allege HRL conspired with SSE to engage in certain unfair practices and deceptive acts which violated LUTPA. The trial court reasoned that "without actually having heard racially discriminatory language or experienced racially discriminatory conduct, plaintiffs are unable to meet their burden of proof that defendants HRL and Tom Hayden's conduct violated LUTPA." The trial court dismissed all claims involving racial animus under LUTPA (or otherwise) as a result. We find the trial court improperly conflates Plaintiffs' legal claims with the factual allegations that support those claims.
It is true that racial discrimination and hostile work environment are recognized legal theories of recovery subject to summary judgment dismissal; however, as previously explained, Plaintiffs have not asserted stand-alone causes of action under Louisiana employment law. Plaintiffs allege Defendants conspired to terminate Titan in knowing violation of LUTPA.
The inquiry on a motion for summary judgment where a petitioner alleges a LUTPA violation is whether defendant's methods, acts, or practices were unfair or deceptive within the meaning of LUTPA. To prove that Defendants were not merely exercising permissible business judgment, Plaintiffs produced evidence of actions by Defendants which Plaintiffs claim is tantamount to unfair or deceptive acts in the conduct of Defendants' business operations within the scope of LUTPA. Thus, Plaintiffs' allegations represent the evidentiary facts that support the alleged conspiracy to
The racial animus, hostile work environment, and infliction of emotional distress were merely some of the means by which Defendants allegedly carried out their scheme to terminate Titan. In that the foregoing allegations embody only a portion of the methods Defendants used to remove Titan, Plaintiffs also offer other evidence. Specifically, Plaintiffs claim Defendants questioned their work performance and abilities, blocked their work progress, made unnecessary change orders, sent "bogus notices of corrective active action," and instructed Plaintiffs to perform work in contradiction to project plans and industry-accepted standards. The collection of these practices, together, were intended to confuse, intimidate, interfere with production, cause delays within Titan's crew, and ultimately cause Titan's failure to comply with its sub-contract. Therefore, we find the factual allegations at issue in this writ (i.e. racial animus and hostile work environment) are simply component parts of Plaintiffs' overarching claim that Defendants conspired and engaged in various deceptive acts which violated LUTPA.
In light of our finding, we note the practical outcome of the trial court's ruling. The trial court's dismissal of Plaintiffs' allegations of racial animus and hostile work environment in effect determines what evidence Plaintiffs may introduce at trial. In this way, the trial court's ruling is more akin to a ruling on a motion in limine. The trial court's ruling functions not to dismiss legal issues of racial animus and hostile work environment but to exclude the evidence of either at trial.
Nevertheless, summary judgment is a procedural vehicle for dismissing issues of law and/or fact that are not in dispute. A material fact, however, is not the same as a petitioner's theory of recovery. A material fact supports a petitioner's theory of recovery. "A fact is `material' when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery." Sutherland v. Alma Plantation, L.L.C., 15-1136, p. 4 (La.App. 4 Cir. 5/4/16), 193 So.3d 1178, 1181, writ denied, 16-1044 (La. 9/16/16), 206 So.3d 208 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751). The allegations of racial discrimination, hostile work environment, the questioning of Titan's work performance and abilities, and the intentional slowing of Titan's work progress are not separate theories of recovery. They are the operative facts Plaintiffs allege support their claim that Defendants conspired to unfairly terminate Titan. Plaintiffs contend that the existence of Defendants' deceptive acts is essential to support their cause of action for damages under the applicable theory of recovery in this case — the knowing violation of LUTPA.
Insofar as its ruling addressed issues of fact, the trial court found no genuine issue of material fact existed as to the allegations of racial animus and hostile work environment. Although the trial court's ruling does not preclude Plaintiffs from pursuing their LUTPA claim with evidence of Defendants' other alleged conduct, we find genuine issues of material fact remain as to HRL's role in the alleged racial discrimination and hostile work environment. As explained in greater detail below, the trial court's determination relied on its own credibility determinations and the weighing of testimony with respect to who represented and worked for HRL and HRL's motivation and intent. Therefore, to the extent the trial court's ruling also dismissed certain evidentiary proof of Plaintiffs'
On supervisory review, we do "`not give deference to the trial court's judgment or its reasons therefor ... A trial court's reasoning for granting a summary judgment may be informative, but it is not determinative of the issues to be resolved by this court.'" S. Louisiana Ethanol L.L.C. v. CHS-SLE Land, 14-0127, p. 7-8 (La.App. 4 Cir. 2/4/15), 161 So.3d 83, 88, writ denied, 15-0481 (La. 5/15/15), 170 So.3d 967, quoting, Jones v. Buck Kreihs Marine Repair, LLC., 13-0083, p. 1-2 (La. App. 4 Cir. 8/21/13), 122 So.3d 1181, 1183.
Conspiracy by itself is not recognized in Louisiana as an actionable claim. Prime Ins. Co. v. Imperial Fire & Cas. Ins. Co., 14-0323, p. 9 (La.App. 4 Cir. 10/1/14), 151 So.3d 670, 676 (citing Crutcher-Tufts Resources, Inc. v. Tufts, 07-1556, p. 3 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1094). "The actionable element of a conspiracy claim is not the conspiracy itself but the tort the conspirators agree to perpetrate and actually commit in whole or in part." Id.; Ames v. Ohle, 11-1540, p. 11 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 393. Plaintiffs' conspiracy claim as pled in their petition identifies HRL's violation of LUTPA as the underlying tort forming the basis for the alleged conspiracy. In Prime, this Court explained:
Id., 14-0323, p. 10, 151 So.3d at 677 (internal citations and quotations omitted)(emphasis added); also Thomas v. North 40 Land Development, Inc., 04-0610, p. 22 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174.
Pursuant to LUTPA, it is unlawful to engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. La. R.S. 51:1405(A). Acts constituting unfair or deceptive trade practices are not specifically defined but are determined on a case-by-case basis. Prime, 14-0323, p. 12, 151 So.3d at 678. This Court has defined an "unfair trade practice" as one that is "unethical, oppressive, unscrupulous, or substantially injurious." Bolanos v. Madary, 609 So.2d 972, 977 (La. App. 4th Cir. 1992). Acts which generally constitute unfair trade practices involve fraud, deception, misrepresentation, breach of fiduciary duty, or other unethical conduct. Action Revenue Recovery, L.L.C., v. eBusiness Group, L.L.C., 44,607, p. 9 (La.App. 2 Cir. 8/19/09), 17 So.3d 999, 1004. A critical factor in such cases is the defendant's motivation, and the actions must have been taken for the purposes of harming the competition. Monroe Surgical Hosp., LLC v. St. Francis Med. Ctr., Inc., 49,600, 49,608, p. 29 (La.App. 2 Cir. 8/21/14), 147 So.3d 1234, 1250, writ denied, 14-1991 (La. 11/21/14), 160 So.3d 975. Additionally, the U.S. Fifth Circuit explained that "intent to eliminate the competition does not itself violate LUTPA. Rather, the statute forbids businesses to destroy each other through improper means." Turner v. Purina Mills, Inc., 989 F.2d 1419, 1423 (5th Cir. 1993). Therefore, the question on summary judgment is whether the evidence is sufficient that a jury may disagree as to whether Defendants' conduct was
Plaintiffs contend that HRL, acting in collusion with all other defendants, embarked on a course of deceptive, unfair, and prohibited conduct with the intent to terminate Titan's sub-contract in order to increase their profit margins. As Plaintiffs aver, "[t]he conduct perpetrated as a means to that end [is what] violated LUTPA." Specifically, it is alleged that Defendants conspired to create a hostile work environment through the intentional infliction of emotional distress and racial discrimination which would affect Plaintiffs' ability to properly perform their job duties and allow HRL to terminate Titan's sub-contract.
In support of partial summary judgment, HRL argues that the deposition testimony reveals Plaintiffs cannot meet their burden of proving that HRL conspired with other defendants to intentionally inflict emotional distress, create a hostile work environment, and/or racially discriminate against Plaintiffs. HRL avers that there is no evidence that HRL or its employees engaged in racial discrimination, made discriminatory remarks, or participated in a scheme to push Titan off the levee project. In opposition, Plaintiffs contend deposition testimony proves genuine issues of material fact remain as to whether HRL conspired to create a hostile work environment through the intentional infliction of emotional distress and racial discrimination.
Based on the pleadings and supporting evidence, we find Plaintiffs submitted sufficient evidence that at the very least warrants further discovery before consideration of partial summary judgment. First, a genuine issue of material fact exists as to whether Leonard Stephens ("Mr. Stephens") worked for HRL or represented HRL and whether his actions may be attributable to HRL. Second, HRL's motivation is a critical factor in determining whether they intentionally engaged in deceptive conduct to terminate Titan's sub-contract. Considering the deposition testimony of HRL and Mr. Hayden (principal parties to the action) has not taken place, we find partial summary judgment is premature. We discuss both reasons within the context of the evidence presented.
Plaintiffs allege evidence shows that Mr. Stephens worked for and/or represented HRL, and his actions (in addition to the actions of others) demonstrate the racial animus and hostile work environment to which Plaintiffs were subjected. HRL disputes this claim, arguing that references to Mr. Stephens do not create a genuine issue of material fact sufficient to overcome summary judgment because he did not work for HRL. Alternatively, HRL avers that even if Mr. Stephens worked/represented HRL, Plaintiffs cannot overcome summary judgment because they did not personally observe Mr. Stephens express any racial animus or use racially derogatory language.
Mr. Stephens testified that his company, L & L General Contractors, had a contract with HRL to maintain the staging area, which entailed maintaining the dirt stockpile and ensuring trucks and materials made it to the project area. Mr. Stephens believed that based on his contract with HRL, he and another HRL representative would be working at the project site; however, later HRL sent additional workers. Mr. Stephens testified that he did not work for HRL.
Conversely, SSE understood Mr. Stephens worked for HRL. SSE president Mark Nunez testified that when he met with HRL to discuss its participation in the levee project, HRL was represented
With respect to Mr. Stephens' conduct, Mr. Marlborough testified to having heard Mr. Stephens make racial slurs regarding African-Americans. Mr. Malbrough testified that he approached Mr. Stephens about the racial tension and project issues his company was experiencing. Mr. Stephens, as representative of HRL, responded, "[e]verybody should own one, shouldn't they." Mr. Malbrough stated that Mr. Stephens was referring to a "black man." Likewise, Mr. Cooper testified that he also heard Mr. Stephens make a racially derogatory comment about one of Titan's employees. Mr. Cooper recalled Plaintiff James "Mike" Long operating Mr. Stephens' bulldozer and Mr. Stephens saying, "What's that n***** doing running my equipment? There ain't no n*****s running my s****."
HRL argues that because Plaintiffs did not personally observe Mr. Stephens make these comments, Plaintiffs may not rely on it as evidence in opposition to partial summary judgment. The fact that Plaintiffs did not observe Mr. Stephens make the racial slurs is of no moment. Plaintiffs contend that it is relevant circumstantial evidence of the racial animus and hostile work environment Plaintiffs allege HRL helped facilitate. Therefore, we find the evidence sufficient to demonstrate material issues remain as to Mr. Stephens' employ, his role in the levee project, and his alleged conduct.
It is widely accepted that "summary judgment is not a substitute for a trial on the merits, and is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, knowledge, and malice." Prime, 14-0323, p. 10, 151 So.3d at 677. Subjective facts like these call for credibility determinations and weighing of the testimony. Id. Further, it is "rarely appropriate for the disposition of issues requiring a determination of the reasonableness of acts and conduct of parties under all the facts and circumstances of a case." Id. (citing Greater LaFourche Port Com'n v. James Const. Group, LLC, 11-1548, p. 7 (La.App. 1 Cir. 9/21/12), 104 So.3d 84, 88). The underlying question in any unfair trade practices case is whether the defendant's acts and conduct were reasonable.
Acts which constitute unfair trade practices generally involve fraud, deception, misrepresentation, breach of fiduciary duty, or unethical conduct. Action Revenue Recovery, 44,607, p. 9, 17 So.3d at 1004. HRL's motivation and intent are critical factors in determining whether HRL's conduct was unfair or deceptive and part of an underlying agreement to terminate Titan's sub-contract. See Monroe Surgical Hosp., 49,600, p. 29, 147 So.3d at 1250 (finding motivation is a critical factor in LUTPA claims and the defendant's actions must have been taken for the purpose of harming the competition).
Granting partial summary judgment, the trial court reasoned that "without actually having heard racially discriminatory language or experienced racially discriminatory conduct, plaintiffs are unable to meet their burden of proof that defendants HRL and Tom Hayden's conduct violated LUTPA." We disagree. Evidence of racial animus is seldom blatant and obvious. In most instances, there is an attempt to conceal the discrimination with a pretext — an innocuous, non-discriminatory reason for the adverse action.
The same is true of the alleged conspiracy. Circumstantial evidence is sufficient if it gives rise to the inference that HRL conspired or was complicit in the actions taken by others to unfairly terminate Titan. In this case, the disposition of material fact issues requires a determination of the reasonableness of HRL's action and/or inaction under all the facts and circumstances of this case. Prime, 14-0323, p. 10, 151 So.3d at 677 (citing Greater LaFourche Port, 11-1548, p. 7, 104 So.3d at 88).
Therefore, we disagree with HRL that Plaintiffs are unable to meet their burden of proof because they did not personally experience or witness racial animus. Testimonial evidence implicating Mr. Hayden as well as alleged employees and/or representatives of HRL indicates otherwise. Further, the conduct of SSE and its employees is also relevant circumstantial evidence that creates an issue of material fact. Even if we were to conclude no genuine issue of material fact remains as to whether HRL actively contribute to the discrimination and hostilities Titan experienced, which we do not, an issue of material fact remains as to whether HRL was complicit in the alleged conspiracy.
We note that Plaintiff Nathaniel White specifically testified to his encounter with Mr. Hayden. Mr. White's supervisor instructed him to retrieve water from HRL's side of the project because the pump on his truck was broken. Claiming Mr. White was driving too fast, Mr. Hayden stopped
Although "black" as an identifying adjective is not always evidence of racial animus, "it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage." Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006). Even assuming Mr. Stephens did not work for or represent HRL, Mr. Hayden's remark (at minimum) raises genuine questions of material fact of HRL's part in the alleged racial discrimination and hostile work environment.
Mr. White also testified that HRL would routinely leave its trucks in the work area, taking the keys with them and preventing Titan from continuing its operations. Mr. White stated that after Titan was fired he was hired by HRL, and he no longer experienced any problems or encountered any racial issues. Mr. White testified that he "worked there long enough to know ... as long as [Titan] w[as] there ... there was a problem." The change of conduct following Titan's departure is evidence from which a jury may infer that it was Defendants' motive and intent to oust Titan and take its share of the benefits of the project.
Plaintiff Jarrod Burrle testified to overhearing and personally experiencing racial animus and hostility on the job. He testified to hearing SSE's quality control officer Elliot Bordelon use the "n-word" while referring to Plaintiff Joseph Encalade's brother. He also heard Mr. Bordelon tell another person that he had not "fired or `fed' a `n-word' in a long time."
Similarly, Mr. Burrle attested that Mr. Stephens referred to him as "boy."
Moreover, Plaintiffs testified that it was generally understood that Titan's African-American employees were not to use the bathrooms or port-o-lets on the job site. Plaintiff Long testified that he overheard Mr. Bordelon state that he did not want any "n-word" using his bathroom. Plaintiff Tara Lopez stated that Plaintiff Joseph Encalade told him that he was not allowed to use the bathroom in the trailer. Plaintiff Joshua White also stated he was told African-Americans could not use the port-olet. Plaintiff Brian Balthazar testified that he used the trailer bathroom and the port-o-let, but later heard someone say that Mr. Bordelon did not want the "little `n-word'" using the trailer bathroom again. Plaintiff Balthazar also testified that Plaintiffs often resorted to relieving themselves outside.
Plaintiffs allege the harassment continued when Titan hired additional African-Americans and that Titan was pressured
Additionally, Plaintiff Balthazar attested to the threatening atmosphere. On one occasion, Mr. Stephens nearly ran him over with a bulldozer. In his deposition testimony, he expressed his concern that Defendants would try to hit him with the bulldozer again and "bury" him. Defendants questioned the work and skill level of Titan's African-American employees and instructed them not to use equipment belonging to Defendants. Testimony also reveals Mr. Hayden falsely accused a plaintiff of dirt contamination and an HRL employee was told not to help Plaintiff Long push dirt on the job site.
In response to the growing hostility, Plaintiffs raised the issue of racial tension with their supervisors. Titan began holding meetings regularly with its crew to discuss "perseverance" in the face of the racial animus the crew experienced. Plaintiff White stated that "perseverance" was part of the crew's "plan of action" on the levee project. Still, Plaintiff White stated that he could not escape the racially motivated conduct, slurs, and tensions on the job.
Plaintiffs assert that, on behalf of its employees, Titan's principals complained about the hostile work environment and racial animus that developed. The petition claims and testimony reveals the complaints resulted in Mr. Bordelon allegedly making a number of racially inflammatory comments, including disparaging Titan's principals for "taking up for a n*****."
At a meeting between SSE and Mr. Stephens, Mr. Malbrough testified that Mr. Stephens told him that Titan needed to fire Mr. King and Mr. Cooper or HRL would terminate Titan's sub-contract. Both men were subsequently terminated. SSE president Mr. Nunez testified that any decision to let Titan employees go was the responsibility of HRL, not SSE. Mr. Nunez's assertions also indicate that the firing of Mr. King and Mr. Cooper was HRL's responsibility. As to Mr. Stephens' insistence that Titan fire Mr. King and Mr. Cooper, Mr. Nunez stated that it was HRL that "needed to do something" to get on schedule.
Plaintiffs make several factual allegations that involve HRL, its employees, Mr. Stephens, Mr. Hayden, and Mr. Bordelon of SSE including: attacks directed at African-American Titan employees; attacks directed at Caucasian "Northshore" Titan employees, and attacks directed at the actual levee work Titan performed. Moreover, the depositions of HRL, Mr. Hayden, and Mr. Bordelon have yet to take place.
At the very least, we find additional discovery warrants denial of partial summary judgment. See Fischer III, LLC v. Williams, 14-0492, p. 11 (La.App. 4 Cir. 12/17/14), 156 So.3d 1255, 1261 (denying summary judgment due to discrepancies found in the sub-leases and the need for more discovery). Plaintiffs expressly indicated in their opposition to partial summary judgment that discovery in this case was incomplete.
Considering the unresponsive nature of HRL's motion for partial summary judgment, the direct and circumstantial evidence presented, and the need for additional discovery, we find genuine issues of material fact. Therefore, we find the trial court erred in granting HRL's motion for partial summary judgment. Accordingly, Plaintiffs' writ application is granted; the trial court's July 19, 2016 judgment granting HRL partial summary judgment is reversed; and the case is remanded for further proceedings in line with this Court's disposition.
McKAY, C.J., CONCURS IN THE RESULT
DYSART, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE JENKINS.
JENKINS, J., DISSENTS WITH REASONS.
McKAY, C.J., CONCURS IN THE RESULT
I find that there are genuine issues of material fact that preclude the granting of summary judgment.
DYSART, J. DISSENTS FOR THE REASONS ASSIGNED BY JUDGE JENKINS.
JENKINS, J., DISSENTS WITH REASONS
I respectfully dissent from the majority's conclusion that the trial court erred in granting the motions for partial summary judgment filed by Hensley R. Lee Contracting, Inc. and Tom Hayden (collectively, "the HRL Defendants"). I would grant the motion and dismiss all of Plaintiffs' claims against the HRL Defendants based on racial discrimination, hostile work environment, intentional infliction of emotional distress, and all other claims based on racial animus.
I first address the majority's finding that the trial court incorrectly granted partial summary judgment because the HRL Defendants only sought dismissal of "nonexistent employment law claims that Plaintiffs never raised."
In their motions for partial summary judgment, the HRL Defendants expressly sought dismissal of "all claims of racial discrimination, hostile work environment,
Under La. C.C.P. art. 966(F), "[a] summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." Although a trial court cannot rule on issues not raised by the parties. I find that the HRL Defendants properly raised the issues of racial animus/racial discrimination/hostile work environment/intentional infliction of emotional distress in their motions for summary judgment, and the trial court properly addressed those issues in its judgment.
I next address the majority's conclusion that the trial court committed legal error by dismissing "all claims based on racial animus under LUTPA (or otherwise)" because Plaintiffs' race-based allegations are not "stand-alone causes of action" but rather "evidentiary facts that support the alleged conspiracy to engage in deceptive acts" that violated LUTPA.
Under La. C.C.P. art. 966(E), "[a] summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties." Thus, the scope of summary judgment is not limited to causes of action, such as a violation of the LUTPA, but more broadly includes all theories of recovery.
I find that Plaintiffs' factual allegations of racial animus constitute a theory of recovery under the LUTPA, which was properly subject to dismissal via a motion for partial summary judgment under La. C.C.P. art. 966(E). I note that the HRL Defendants did not move for partial summary judgment on Plaintiffs' other theory of recovery under the LUTPL, which is based on the HRL Defendants' alleged acts intended to disrupt and undermine Plaintiffs' work, including (1) questioning Plaintiffs' work performance and abilities; (2) making unnecessary change orders; (3) sending bogus notices of corrective action; and (4) ordering Plaintiffs to perform work contrary to the project plans and industry-accepted standards. At this point, that separate theory of recovery remains to be tried.
Next, I address the majority's conclusion that genuine issues of material fact remain as to whether the HRL Defendants "conspired to create a hostile work environment through the intentional infliction of emotional distress and racial discrimination." A review of the record shows that during their depositions, each Plaintiff was asked what acts of racial discrimination he saw with his own eyes or heard with his own ears — not what other people told him, but what he saw and heard. Each of the Plaintiffs was also asked if he was personally subjected to racial discrimination while working on the levee project. All of the Plaintiffs, with the exception of Nathaniel White, testified that they had not been personally subjected to racial discrimination by HRL or Mr. Hayden. One plaintiff, Nathaniel White, testified that he heard a single instance of racially offensive language directed toward him by Mr. Hayden.
I also agree with the trial court that Plaintiffs did not present sufficient summary judgment evidence to show that all of the defendants conspired to attack the Titan crew as a whole in a joint effort to drive Plaintiffs from the job site, which Plaintiffs argue would obviate the need for proof of direct racial attacks on Plaintiffs by the HRL Defendants.
And although Louisiana courts do recognize that summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, or malice, summary judgment may be granted on subjective intent issues where — as here — no genuine issue of material fact exists concerning alleged racially discriminatory conduct or intent. See Jones v. Estate of Santiago, 03-1424, p. 6 (La. 4/14/04), 870 So.2d 1002, 1006. Given that Plaintiffs simply did not come forward with evidence that creates an issue of material fact, I also find that the trial court did not impermissibly weigh the evidence or make credibility determinations. See Selvage v. Gainey Transp. Serv., Inc., 03-0959, p. 4 (La. App. 4 Cir. 10/8/03), 859 So.2d 813, 816.
Finally, I disagree with the majority's conclusion that the trial court erred in granting partial summary judgment because additional discovery is needed. A trial court's decision to hear a motion for summary judgment where discovery is alleged to be incomplete is reviewed under an abuse of discretion standard. Rivarde v. City of New Orleans, 15-0655, p. 5 (La. App. 4 Cir. 3/9/16), 190 So.3d 400, 403, writ denied, 16-0670 (La. 5/27/16), 192 So.3d 744. There is no requirement that summary judgment be delayed until discovery is complete. Rivarde, 15-0655, p. 7, 190 So.3d at 405. Although the parties must be given a fair opportunity to carry out discovery, in order to delay a motion for summary judgment when it appears that there is no genuine issue of material fact, a party must show a "probable injustice." Id. I find that Plaintiffs have not satisfied their burden, given that they did not ask the trial court for a continuance so that additional depositions could be taken, as permitted by La. C.C.P. art. 967(c), or even brief the issue in this court.
For the reasons assigned, I would affirm the trial court's July 19, 2016 judgment granting the HRL Defendants' motion for partial summary judgment, and dismiss, with prejudice, all of Plaintiffs' claims of racial discrimination, hostile work environment, intentional infliction of emotional distress, and all other claims based on racial animus, including those falling under the LUTPA, against the HRL Defendants.
