Opinion
Civil Action 01-1986, Section "T" (4)
February 14, 2002
Before the Court is Defendant, Marine Drilling Management, Inc. ("Marine Drilling"), who moves to dismiss with prejudice Plaintiff, Roy Wayne Barber's ("Mr. Barber"), claims of sex discrimination/harassment, defamation, and his claims for damages under La. Civ. Code art. 2315, La. R.S. 23:967 and La. R.S. 30:2027, pursuant to Fed.R.Civ.Pr. 12(b)(6) for failure to state claim upon which relief may be granted. The Court, having considered the arguments of the respective parties, the legal memoranda submitted by the parties, the Court record, the law, and applicable jurisprudence, is fully advised on the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
Mr. Barber, Plaintiff, was employed by Defendant Marine Drilling from July, 2000 until November, 2000. He worked on an offshore drilling rig as a crane operator. On September 14, 2000, Plaintiff attended a meeting for all employees aboard Marine #202, conducted by the rig superintendent, Mr. Horace Groves ("Mr. Groves"). During the meeting, Mr. Groves told all rig hands, including Mr. Barber, that they were "stupid," "ignorant," and "had no sense." (Complaint ¶ 4). Additionally, Mr. Groves singled out Plaintiff by verbally harassing and humiliating him in front of his co-workers and Marine #202 management. (Complaint ¶¶ 4, 5). Mr. Groves made an announcement to everyone at the meeting that if they thought anything Mr. Barber was doing was incorrect, they could call Mr. Barber over the intercom and tell him to "suck their dick." (Complaint ¶ 5).
Plaintiff is a certified crane operator with over twenty years of experience. Plaintiff had experienced problems with the port crane where it had become jerky and unstable. Plaintiff alleges to have made several requests and suggestions to J.W. Herrington ("Mr. Herrington"), one of his managers at Marine Drilling, "to change the cable on the port crane and to place a swivel on the deadman." (Complaint ¶ 9). Plaintiff's suggestions were not implemented.
Plaintiff claims that he operated the crane under these unsafe conditions on November 7, 2000. He was supervised in these actions by Marine Drilling managers, Mr. Herrington and Bruce Helweg ("Mr. Helweg"). Plaintiff again expressed his opinion that the cable on the port crane needed to be replaced, and Mr. Helweg expressed his disagreement and gave alternate instructions to Plaintiff. After further discussion, Plaintiff ultimately followed Mr. Helweg's instructions. (Complaint ¶ 15).
On November 10, 2000, Plaintiff's employment with Marine Drilling was terminated. The reasons given to Plaintiff for his termination were that (1) his operation of the crane had been unsatisfactory, and (2) his "talking back" to Mr. Herrington about the incidents of November 7th was unacceptable. (Complaint ¶ 16). Plaintiff claims that he was actually terminated as a result of voicing complaints about the unsafe equipment and operations of the port and starboard cranes. (Complaint ¶ 16).
II. ARGUMENTS OF THE RESPECTIVE PARTIES
Defendant contends that the Plaintiff has not stated a claim upon which relief can be granted for sex discrimination/harassment, defamation, damages under La. Civ. Code art. 2315, La. R.S. 23:967, and La. R.S. 2027, pursuant to Fed.R.Civ.Pr. 12(b)(6). First, Defendant argues that Plaintiff does not set forth a cognizable claim of discrimination. The only possible discrimination allegation that may be discerned from Plaintiff's complaint is a harassment claim. However, the conduct alleged by Plaintiff to have constituted harassment was not based on sex and does not rise to the level necessary to state a claim upon which relief may be granted under Title VII of the Civil Rights Act or under La. R.S. 23:301 et seq.
Next, Defendant argues that the Court should also dismiss Plaintiff's defamation claim and the claims brought under La. Civ. Code art. 2315, La. R.S. 23:967 and La. R.S. 30:2027, because Plaintiff has not set forth a cognizable claim for relief under any of these statutes. Defendant contends that in reference to La. Civ. Code art. 2315, Plaintiff does not specifically identify the nature of the tort for which he seeks recovery. According to both State and Federal courts, there is no cause of action in tort under Louisiana law for employment discrimination; therefore, Plaintiff cannot "bootstrap" his Article 2315 claims to his claim for sex discrimination. Defendant next submits, in reference to La. R.S. 23:1032, that any claim of negligence is barred by the exclusivity provisions of the Louisiana Workers' Compensation statute. Moreover, any claim of defamation is subject to dismissal because the alleged defamatory statements do not satisfy the elements of that tort, and are further privileged as internal company communications. Any claim of intentional infliction of emotional distress, likewise, is not supported by the allegations of the Complaint. Finally, Defendant argues that Plaintiff does not state a claim upon which relief can be granted, according to the specific language of La. R.S. 30:2027 and La.R.S. 23:967.
Plaintiff opposes this motion arguing that he has stated an actionable claim. Plaintiff asserts that the statement made by his supervisor, Mr. Groves, is sex based and sufficiently severe and pervasive to constitute illegal sexual harassment. Plaintiff asserts that while the level of treatment need not make the complainant's working conditions intolerable, the treatment must be sufficiently serious such that a reasonable employee would not accept this treatment as part of a normal working environment. The comment made by Mr. Groves arguably satisfies this requirement.
Next, Plaintiff contends that he has pled claims upon which relief can be granted under Article 2315. First, Plaintiff asserts that the Louisiana Worker's Compensation Act does not provide Marine Drilling with a defense. Plaintiff additionally asserts that Defendant's acts were not negligent, but intentional, thus the employer is not immune from this intentional act. Second, Plaintiff argues that he has adequately pled a claim of defamation, meeting all five of the legal elements, and that the alleged statement is not privileged. Third, Plaintiff argues that the issue of "bootstrapping" the Article 2315 claims to a sex discrimination claim is irrelevant. Plaintiff contends that he has made a separate claim for sex discrimination and does not wish to bootstrap it to his Article 2315 tort claims of defamation and intentional infliction of emotional distress. Plaintiff further contends that he has stated a claim for intentional infliction of emotional distress, according to the Louisiana Supreme Court adopted Restatement version of this tort. Plaintiff claims that although sexual harassment is regulated by statute, there is no reason the offensive conduct cannot also give rise to a claim for intentional infliction of emotional distress or otherwise constitute actionable fault under Civil Code Article 2315.
White v. Monsanto Company, 585 So.2d 1205, 1209 (La. 1991).
Bustamento v. Tucker, 607 So.2d 532 (La. 1992).
Plaintiff concludes with the assertion that because he is a layperson, he cannot be expected to be familiar with the specific laws and regulations relevant to his La. R.S. 30:2027 and 23:967 claims. Plaintiff argues that he reasonably believed that the operation of the crane was unsafe and improper, and he should not be faulted for not knowing the specific legal claims that were being disregarded.
III. LAW ANALYSIS
A. Law on Rule 12(b)(6) motions:
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), courts have found that dismissal pursuant to this provision "is viewed with disfavor and is rarely granted." Lowery v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under Fed.R.Civ.Pr. 12(b)(6) "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard as, "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Lowrey, 117 F.3d at 247, citing 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1357, at 601 (1969).
B(1). Law on Sex Discrimination/Harassment under either Title VII or La.R.S. 23:301 et seq.
In order to establish a prima facie case of sexual harassment by a supervisor, a plaintiff must prove (1) that he is a member of a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment was based on sex; and (4) that it affected a term, condition, or privilege of employment, i.e., that he suffered a tangible employment action or that the defendants' conduct was so severe and pervasive that it altered the conditions of employment and created an abusive environment. See Watts v. Kroger, 170 F.3d 505, 509 (5th Cir. 1999).
In Casiano v. ATT Corporation, 213 F.3d 278 (5th Cir. 2000), the Fifth Circuit drew a road map for the analysis of the fourth factor of the prima facie case and beyond for sexual harassment claims in which the plaintiff's supervisor is the alleged harasser. Under this road map, the first step is to determine whether the plaintiff suffered a "tangible employment action." If he has, the suit is classified as a quid pro quo case; if he has not, the suit is classified as a hostile work environment case. Id. at 283. If the plaintiff establishes that he suffered a tangible employment action, he must then show that the tangible employment action resulted from his acceptance or rejection of the supervisor's alleged sexual harassment. If a plaintiff is able to demonstrate such a nexus, the employer is vicariously liable per se. Id. at 283-284.
If the plaintiff did not suffer a tangible employment action as a result of the harassment, the suit is a hostile work environment case. However, if the plaintiff's allegations do not rise to the level of severe and pervasive conduct, Title VII does not impose liability on the employer.
Further, even when the alleged conduct arguably constitutes severe and pervasive harassment, the employer may still avoid liability by proving both prongs of the affirmative defense. Casiano, 213 F.3d at 283-284; see also Watts v. Kroger, 170 F.3d 505, 509 (5th Cir. 1999) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807-808, 118 S.Ct. 2275, 2293 (1998)). The affirmative defense consists of two prongs:
1. That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
2. That the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Watts, 170 F.3d at 509-510 (citing Faragher, 118 S.Ct. at 2293).
B(2). Court's Analysis of the Sexual Harassment/Discrimination Claim
Plaintiff claims that he suffered sexual harassment and discrimination in the workplace, resulting from actions of Defendant and Defendant supervisors. The Court finds that based on the law and the allegations presented, this claim is insufficient in terms of being eligible for legal relief. Plaintiff's harassment claim fails because the allegations do not appropriately satisfy that: (a) the comment was "because of sex," (b) the conduct was so severe and pervasive as to constitute hostile environment discrimination, and (c) there existed a "nexus" between the harassment and a tangible employment action.
Plaintiff's claim that the harassment "was based on sex" fails because it is based solely on the comment made by Mr. Groves during the September 14, 2000 meeting. The mere fact that words have sexual content or connotation does not automatically lead to a finding of sex harassment.Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002 (1998). The key in making the "because of sex" determination is to demonstrate that members of one sex have been exposed to disadvantageous terms and conditions of employment to which members of the other sex are not exposed. Plaintiff's argument that 'had he been a woman,' he would not have been exposed to such offensive and degrading comments is unacceptable. Plaintiff raises no allegations in support of this claim, and additionally gives no information demonstrating that women are not exposed to this type of treatment in the workplace. It is also an unpersuasive suggestion by the Plaintiff that an invitation to give co-workers oral sex is more offensive to a man, than it would be to a woman. Because the Plaintiff's allegations, even if true, are insufficient to sustain a claim for harassment "based on sex," the claim is dismissed.
Plaintiff additionally has not satisfied the claim that Defendant's conduct was sufficiently severe and pervasive to constitute sexual harassment. Relevant factors include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." The social context in which particular behavior occurs must also be carefully considered. At worst, the comments represent the kind of rough language and vulgarism that one might expect to encounter in the offshore work atmosphere. Plaintiff's allegations, even if taken as true, do not rise to the level of severe and pervasive to support a claim of hostile work environment Plaintiff gives no support that the incident caused the workplace to become so hostile that a reasonable person would regard the environment as abusive. Based on the lack of facts necessary to constitute a valid claim for severe and pervasive harassment, the claim is dismissed.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 371 (1993).
Oncale, 523 U.S. at 81, 118 S.Ct. at 1003.
Based on the Plaintiff's allegations, the Court is additionally unable to find merit in the sexual harassment/discrimination claim due to lack of a factual nexus between Plaintiff's termination and the alleged harassment. There must exist a connection between a tangible employment action taken against the Plaintiff, i.e. termination of employment, and the harassment suffered therein, in order to find the employer vicariously liable per se. The alleged comments occurred during the meeting on September 14, 2000, and the Plaintiff has provided no factual support demonstrating a link between the two events. Because the Court must consider only the Plaintiff's well-pleaded allegations, and not the conclusory allegations offered to support the claims, the Court accordingly finds that dismissal is appropriate as to the claim of sexual harassment and discrimination.
Law on Claims Relating to Damages Under La. Civ. Code Article 2315: C(1). Workers' Compensation Exclusivity Provisions (La. R.S. 23:1032)
La. R.S. 23:1032 specifies the exclusiveness of rights and remedies, in reference to the liability of the employer under other tort laws, when workers compensation is involved. The statute states:
" Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee . . . on account of an injury, . . . for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages. . .".
"Nothing in this Chapter shall affect the liability of the employer, . . . to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act."
Any claim for damages resulting from alleged negligence of the employer is barred by the exclusive remedy provisions of Louisiana workers' compensation law. However, the employer is not immune if the injurious conduct was an intentional act See La. R.S. 23:1032 (Supp. 1995). Therefore, if the defendant's acts are determined to be intentional, plaintiff is not barred from bringing a claim for damages under tort.
C(2). Court's Analysis of Exclusivity Provisions of 23:1032
Defendant contends that because it was Plaintiff's employer, any claims for damages resulting from their alleged conduct are barred by the exclusive remedy provisions of Louisiana workers' compensation law, La. R.S. 23:1032. The Court finds that this argument lacks merit for the following reasons.
La. R.S. 23:1032 specifically states that the exclusivity provisions of the statute do not apply when the acts of the employer are intentional. Defendant contends that although Plaintiff did not articulate a claim of negligence, the use of the word "fault" in the Complaint raised the possibility that Plaintiff may be attempting to assert a claim of negligence against Defendant. While the Court does not find it necessary to infer that the word fault implicates a claim of negligence, it is more persuasive that the actions and conduct of the defendant were alleged to be intentional. The employer is not immune if the injurious conduct was an intentional act; therefore the exclusivity provisions are inapplicable. Based on this conclusion, Plaintiff is not barred from bringing supplemental tort claims against Marine Drilling relative to sexual harassment, intentional infliction of emotional distress, and defamation. However, while plaintiff may not be excluded from asserting such claims pursuant to La. R.S. 23:1032, plaintiff has failed to state a claim under these theories as discussed herein.
D(1). Law on Claims for Defamation Privileged Communications
Defamation is an invasion of a person's interest in his reputation and good name. Sassone v. Elder, 626 So.2d 345, 350 (La. 1993). A plaintiff must prove the following elements to successfully recover for defamation: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) injury resulting from the alleged conduct. Brannon v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1105 (La. 1988).
'Defamatory words' are "those which tend to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating with him. "Sommer v. State Department of Trans. and Dev., No. 97-1929, (La.App. 4th Cir. 3/29/00); 758 So.2d 923, 939, writ den., 2000-1759 (La. 10/27/00) 772 So.2d 122. In defining "defamatory words," the Louisiana courts have held that "[c]asual remarks made in informal conversation, even if they include unflattering words, do not constitute actionable defamation." Guillory v. State Farm Ins. Co., 662 So.2d 104, 112 (La.App. 4th Cir. 1995).
"(statement that insurance agent was "illiterate" made in company meeting at which agent was being encouraged to understand loss control program was not defamatory) (citing McGowen v. Prentice, 341 So.2d 55 (La.App. 3rd Cir. 1976)). See also Harris v. State Farm Fire Casualty Co., No. Civ. A. 99-2291-M, 2000 WL 33282467 (W.D. La. Dec. 11, 2000) (saying that plaintiff "frequently passes gas", "will never move up", "sings too much", and "let's people pin up her hairpiece" not defamatory because those words, though unflattering, do not tend to harm plaintiff's reputation or lower her in estimation of community).
To be considered "published," for purposes of a defamation claim, statements must be made to a third party, other than the person allegedly defamed. Sommer, 758 So.2d 939. Additionally, intracorporate communications fail to satisfy the "publication" element of a cause of action for defamation: "[a]n intra-corporate communication among officers or agents of the same corporation, and in relation to their duties for the corporation, is merely a communication of the corporation itself. It cannot be construed as being a communication to a third party."Commercial Union Ins. Co. v. Melikyan, 424 So.2d 1114, 1115 (La.App. 1st Cir. 1982). See also Harris v. State Farm Fire Casualty Co., No. Civ. A. 99-2291-M, 2000 WL 33282467 (W.D. La. Dec. 11, 2000) (allegedly defamatory statements during legitimate business meetings not involving third persons who were not involved in defendant's business were not published and were privileged.) The Supreme Court in Cangelosi v. Schwegmann Brothers Giant Super Markets also supports the position that statements made by and in the presence of supervisory personnel, to an employee concerning a business related matter, did not constitute publication. However, the Court in Commercial Union interprets this decision to mean that statements between supervisors and employees, made within the course and scope of employment, are not statements communicated or publicized to third persons. In analogy, statements that fall outside of the course and scope of employment, however, may not be protected as privileged intra-corporate communications.
Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196 (La. 1980).
Commercial Union, 424 So.2d 1114 (La.App. 1st Cir. 1982).
D(2). Court's Analysis on Defamation and Privileged Communications
Plaintiff contends that his claim for defamation is sufficient, based on the allegation that he suffered an invasion of personal interest to his reputation and good name. There are, however, five elements that must be satisfied before relief will be granted for a claim of defamation. Because Plaintiff has failed to assert allegations necessary to meet these elements, the Court finds that dismissal of the claim of defamation is appropriate for the following reasons.
Two primary elements of a defamation claim are that the alleged statements made must contain "defamatory words," and that there be some significant injury resulting from the alleged conduct. Whether words are defamatory is a question of law for the court to decide. In Louisiana, courts have held that remarks made in conversation, even if containing unflattering words, do not constitute actionable defamation. While the alleged comments concerning the Plaintiff are unflattering, and can even be characterized as crude and insulting, the statements do not rise to the level of "defamatory words." Plaintiff has additionally failed to demonstrate any connection between the alleged distasteful statement and an injury that may have resulted therefrom. Plaintiff has provided no supplemental facts demonstrating that his ability to continue working on the rig was affected, or that his termination approximately two months later was a result of the alleged defamatory statement. While Plaintiff does allege that the statement subjected him to ridicule by his peers, there are no facts presented to support this allegation. Even in taking all of the Plaintiff's allegations as true, he has not set forth sufficient facts to satisfy the mandatory elements of a defamation claim.
Guillory v. State Farm Ins. Co., 662 So.2d 104, 112 (La.App. 4th Cir. 1995).
While publication is also a necessary element of a defamation claim, Defendant contends that although the alleged statement was presented to third persons other than the Plaintiff, "intra-corporate" communications fail to satisfy the "publication" element of a defamation cause of action. "An intracorporate communication, among officers or agents of the same corporation, and in relation to their duties for the corporation, is merely a communication of the corporation itself. It cannot be construed as being a communication to a third party." Although the statement in question was made in a business context, and made by a supervisor to employees, the statement itself was not a matter relating to the duties of employees, or within the course and scope of the employment. Plaintiff being allegedly invited to give oral sex to his co-workers is not essential to the employment duties required or performed on an oil rig, and is therefore not a privileged business communication. While the alleged comment is not privileged, and therefore considered published, Plaintiff still has not presented allegations sufficient to satisfy the additional elements necessary for a claim of defamation. Accordingly, the Court deems dismissal to be appropriate as to Plaintiff's claim for defamation.
Commercial Union Ins. Co. v. Melikyan, 424 So.2d 1114, 1115 (La.App. 1st Cir. 1982). See also Harris v. State Farm Fire Casualty Co., No. Civ. A. 99-2291-M, 2000 WL 33282467 (W.D. La. Dec. 11, 2000) (allegedly defamatory statements during legitimate business meetings not involving third persons who were not involved in defendant's business were not published and were not privileged).
E(1). "Bootstrapping" Article 2315 Damage Claims to Sex Discrimination Claims
Both State and Federal courts have held that there is no cause of action in tort under Louisiana law for employment discrimination. Moran v. New Hotel Monteleone, No. Civ. A. 00-1409, 2000 WL 1100382 (E.D. La. Aug. 4, 2000) (Porteous, J.); Gluek v. Casino America. Inc., 20 F. Supp.2d 991 (W.D. La. 1998); Hornsby v. Enterprise Trans. Co., 987 F. Supp. 512, 515-516 (M.D. La. 1997) (holding "Article 2315 does not create liability for employment discrimination"); Caletka v. State Farm Mutual Auto Ins. Co., 936 F. Supp. 380 (W.D. La. 1996); Baynard v. Guardian Life Ins. Co. of America, 399 So.2d 1200 (La.App. 1st Cir. 1981). The Caletka court specifically stated that the existence of Louisiana's anti-discrimination statutes "eliminate[s] the possibility of article 2315 liability for employment discrimination." Caletka, 936 F. Supp. at 380. The Gluck court carefully analyzed the question of whether a concomitant tort action under Civil Code Article 2315 may arise under the same facts alleged to support a cause of action under more specific anti-discrimination statutes. Gluck, 20 F. Supp. 2d at 992-995. Under "a well-known principle of statutory construction," the court concluded that the more specific statutes should govern the plaintiff's disputes.Gluck. 20 F. Supp. 2d at 994. The court further reasoned that to allow plaintiff to seek relief under Article 2315 for claims covered by the Louisiana and federal anti-discrimination laws would have far-reaching, undesirable and unintended consequences, such as: (1) eliminating the limitation on the amount and types of damages available for discrimination claims; (2) eliminating the administrative prerequisites to filing an employment discrimination lawsuit; (3) subjecting an unlimited class of small employers and individuals to liability for employment discrimination where such individuals are not otherwise covered by the anti-discrimination statutes; and (4) eliminating the specific limitation periods in the anti-discrimination statutes. Gluck, 20 F. Supp.2d at 994. As a result, the court dismissed the plaintiff's claim under Article 2315. Gluck, 20 F. Supp.2d at 995.
E(2). Court's Analysis of the 2315 "Bootstrapping" Issue
The Caletka court specifically stated that the existence of Louisiana's anti-discrimination statutes "eliminate[s] the possibility of article 2315 liability for employment discrimination." While the Court agrees that Plaintiff may not bootstrap an Art. 2315 damages claim to a sex discrimination claim, Plaintiff has stated in his opposition to the motion for dismissal that this is not his intention. Plaintiff is attempting to obtain 2315 damages through his claims for defamation and intentional infliction of emotional distress, rather than through his "separate" claim for sex harassment/discrimination. However, the elements necessary for claims of defamation, as discussed above, and intentional infliction of emotional distress, as discussed below, have not been legally satisfied. Additionally, Plaintiff's complaint lacks the necessary factual support that would entitle him to relief. The argument that Art. 2315 may not be "bootstrapped" to a claim for sex discrimination is therefore irrelevant, and accordingly dismissed.
Calekta, 936 F. Supp. at 380.
F(1). Law on Intentional Infliction of Emotional Distress
The Louisiana Supreme Court has adopted the Restatement version of the tort of intentional infliction of emotional distress. White v. Monsanto Company, 585 So.2d 1205, 1209 (La. 1991). The elements of this cause of action are:
(1) that a Defendant's conduct was so extreme in degree and character that it went beyond all bounds of decency and was utterly intolerable in a civilized community;
(2) that such conduct caused severe emotional distress; and (3) that the Defendant intended, by performing the acts complained of, to inflict severe emotional distress upon Plaintiff, or that Defendant knew that such severe distress would be certain or substantially certain to result from the conduct.White, 585 So.2d at 1209. See also Deus v. Allstate Insurance Company, 15 F.3d 506, 514 (5th Cir.), cert. denied, 513 U.S. 1014 (1994).
As explained in Booth v. Intertrans Corp., No. Civ. A. 94-2359, 1995 WL 324631 (E.D. La. May 26, 1995):
To prevail on a claim for intentional infliction of emotional distress, the "conduct complained of must be so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Deus v. Allstate Insurance, 15 F.3d 506, 514 (5th Cir. 1994), quoting, White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991). Conduct in the workplace, even if calculated to cause some degree of mental anguish, will rarely be so severe that it will rise to the level of "outrageous conduct." Id.; Prunity v. Arkansas Freightways Inc., 15 F.3d 649, 654 (5th Cir. 1994). As such, ordinary employment disputes, even those involving discrimination and sexual harassment, will rise to the level of intentional infliction of emotional distress only in the most unusual of cases. See Wilson v. Monarch Paper Company, 939 F.2d 1138, 1144 (5th Cir. 1991); Dean v. Ford Motor Company, 885 F.2d 200, 304-307 (5th Cir. 1989).
F(2). Court's Analysis of Intentional Infliction of Emotional Distress Claim
Plaintiff is attempting to assert a claim against Defendant under Article 2315 for intentional infliction of emotional distress, based on his statement that he "has been subjected to extreme humiliation, embarrassment, mental anguish, and emotional distress due to Defendant's acts and omissions." However, Plaintiff's complaint makes no allegations that approach the requisite threshold of pleading extreme and outrageous conduct on the part of Mr. Groves, Mr. Helwig, Mr. Harrington, or any other employee of Marine Drilling. Plaintiff additionally makes no allegations that he suffered severe emotional distress, or that Marine Drilling or its employees intended to inflict severe emotional distress specifically upon him. To prevail on a claim for intentional infliction of emotional distress, the "conduct complained of must be so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency. . ." None of the Plaintiff's allegations are beyond all bounds of decency in a civilized community, as is necessary to state a claim for intentional infliction of emotional distress. The Plaintiff's complaint simply sets forth a boilerplate legal conclusion of intentional infliction of emotional distress because the complaint is devoid of any allegations of fact that satisfy the pleading threshold of outrageous and atrocious conduct. As such, the Court deems it appropriate to dismiss Plaintiff's claim for intentional infliction of emotional distress.
Booth v. Intertrans Corp., No. Civ. A. 94-2359, 1995 WL 324631 (E.D. La. May 26, 1995).
G(1). Law on La. R.S. 30:2027 and La. R.S. 23:967 Retaliation Claims
La. R.S. 30:2027, in pertinent part, provides that "no firm, business, private or public corporation, partnership, individual employer . . . shall act in a retalitory manner against an employee, acting in good faith, who . . . discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, practice of the employer . . . that the employee reasonably believes is in violation of an environmental law, rule, or regulation.," Thus, to establish a violation of this statute, the employee must believe the conduct violates a specific environmental law, rule, or regulation. See Bernofsky v. Tulane, 962 F. Supp. 895, 907 (E.D. La. 1997) (dismissing plaintiff's environmental whistleblower claim in part because no specific environmental statute or regulation alleged to have been violated).
La. R.S. 23:967, the general whistleblower statute as opposed to the environmental whistleblower protection law, reads, in part:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.
Although La. R.S. 23:967 is a general whistleblower protection statute, it is not limited by its terms to protection against reprisal for actions concerning any particular kind of violation of law. The prerequisite for filing a claim under 23:967 is that an "employer must have committed a 'violation of state law' for an employee to be protected from reprisal." Puig v. Greater New Orleans Expressway Comm'n, No. 00-924 (La.App. 5th Cir. 10/31/00) 772 So.2d 842, 845, writ, den., 2000-3531 (La. 3/9/01) 786 So.2d 731 (distinguishing between 23:967, which deals with conduct which does violate state law as opposed to 42:1169 on governmental ethics).
As stated under well-established principles of statutory construction, where there is a general statute and a specific statute addressing the same subject matter, such as 30:2027 and 23:967, the more specific statute should govern. Gluck v. Casino America, Inc., 20 F. Supp.2d 991 (W.D. La. 1998). Escousse v. State Farm Mutual Automobile Insurance Co., 83 FEP (BNA) 1219 (M.D. La. 2000) (Duval, J.) (dismissing claim under 23:967 because legislature had enacted a more specific statute concerning same subject matter under which plaintiff was also proceeding, citingGluck).
G(2). Court's Analysis of Plaintiff's Retaliation Claims
Defendant argues that Plaintiff has not stated a claim upon which relief can be granted under La. R.S. 30:2027 and La. R.S. 23:967. Under consideration of the specific language of the statutes, as well as the brief facts alleged in support of the claim, the Court agrees that Plaintiff has not stated an appropriate claim for relief under either statute for the following reasons.
La. R.S. 30:2027, the environmental whistleblower protection statute, provides a cause of action for individuals who disclose, or threaten to disclose, to a supervisor or public body, the violation of a specific environmental law, rule, or regulation committed by their employer. The Complaint in question makes no reference to a specific environmental law, rule, or regulation allegedly violated by Defendant, or that Plaintiff expressed that he believed was violated. In addition, Plaintiff's argument that he is "a layperson and cannot be expected to be familiar with the specific laws and regulations pertaining to the environment" is unacceptable as a matter of law to fulfill the specific requirements of the statute. Plaintiff's 30:2027 claim is appropriately dismissed.
Plaintiff's additional claim for reprisal under the general whistleblower protection statute, La. R.S. 23:967, is superseded by his claim under 30:2027, the more specific environmental statute. As stated, under well-established principles of statutory construction, where there is a general statute and a specific statute addressing the same subject matter, the more specific statute should govern. La. R.S. 23:967 is a general whistleblower statute, not limited by its terms to protection against reprisal for actions concerning any particular violation of law. Plaintiff's claim of reprisal is based on the same conduct which forms the basis for his claim under 30:2027. Thus, the 23:967 claim is subject to dismissal because it is merely a derivative claim under the more specific statute, 30:2027. Plaintiff, in addition, makes the similar "layperson" argument for 23:967, as previously discussed. This argument is equally unacceptable in presenting allegations that demonstrate a cause of action under 23:967.
Gluck, 20 F. Supp. 991 (W.D. La. 1998).
Escousse v. State Farm Mutual Automobile Insurance Co., 83 FEP (BNA) 1219 (M.D. La. 2000) (Duval, J.) (dismissing claim under 23:967 because legislature had enacted more specific statute concerning same subject matter under which plaintiff was also proceeding, citing Gluck).
In light of the arguments and lack of factual support presented by the Plaintiff, the Court deems it appropriate to dismiss plaintiff's claims of retaliation protection under La. R.S. 30:2027 and La. R.S. 23:967.
Accordingly,
IT IS ORDERED that Defendant, Marine Drilling Management, Inc.'s Motion to Dismiss, pursuant to Fed.R.Civ.Pr. 12(b)(6) for failure to state a claim upon which relief may be granted, is hereby GRANTED.
IT IS FURTHER ORDERED that the claims of Plaintiff, Roy Wayne Barber, against Defendant, Marine Drilling Management Inc., are hereby DISMISSED WITH PREJUDICE.