Opinion
Civil Action No. 99-1623 Section "C" (4).
April 17, 2000.
April 18, 2000.
ORDER AND REASONS
Defendants have filed an eight-part pretrial motion in limine and motion to dismiss and/or strike. For the reasons explained below, the Court GRANTS IN PART and DENIES IN PART Defendants' motions.
I. MOTIONS TO DISMISS VARIOUS CLAIMS
Defendants move the Court to dismiss Plaintiff's claims for the following: (1) assault and battery; (2) negligence and respondeat superior; (3) breach of contract; (4) failure to have a written sexual harassment policy in the workplace; (5) damages against the individual named defendants (Clyde Naquin and Paul Boudreaux); and (6) penalties and attorney's fees. Defendants allege overall that Plaintiff has not properly pled any of these claims and/or Plaintiff is surprising Defendants with these claims on the eve of trial.
A court should look to the pleadings and the pretrial order to determine whether the parties have properly raised an issue for trial. See Thrift v. Hubbard, 44 F.3d 348, 355 (5th Cir. 1995). "Under the Federal Rules of Civil Procedure, a pleading, or pretrial order, need not specify in exact detail every possible theory of recovery — [rather] it must only `give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.'" Id. at 356 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 1093, 2 L.Ed.2d 80 (1957)). Therefore, this Court must examine each of Defendants' dismissal requests to see whether Defendants were provided "fair notice" of these claims and the grounds upon which they rest.
Plaintiff argues that any motion to dismiss is barred as untimely under the Court's scheduling order requiring dispositive motions to be filed in sufficient time to allow hearing forty-five days before trial. See Rec. Doc. 12. Plaintiff is technically correct. However, if Plaintiff has raised totally new issues on the eve of trial, the Court cannot summarily deny Defendants' motions to dismiss those claims. Allowing such claims to go to trial without such notice would severely prejudice Defendants.
A. Claim for Assault Battery Under Louisiana Law
Plaintiffs Complaint, at ¶ 8, and various other pleadings including the pretrial order specifically allege incidents of sexual harassment during which Defendant Paul Boudreaux rubbed an antenna in the area of Plaintiff's genitals, buttocks, and breasts without her consent. The Second Cause of Action in the Complaint also specifically alleges that Boudreaux carried out a continuous pattern of outrageous, humiliating, and demeaning conduct against Plaintiff, constituting intentional infliction of emotional distress. The Court finds that these combined allegations provided Defendants fair notice of an assault and battery claim as well as the grounds upon which the claim rests. Accordingly, the Court DENIES Defendants' motion to dismiss Plaintiff's claim for assault and battery.
B. Claims for Negligence (La. Civ. Code art. 2316) and Respondeat Superior (La. Civ. Code art. 2320) Under Louisiana Law
The First Cause of Action in the Complaint states a theory of negligence or intentional tort for "failure to implement or enforce any policies or procedures designed to prevent or remedy sexual harassment of employees by fellow employees or officers." Complaint, at ¶ 12. Therefore, although Plaintiff may not have specifically pled negligence by the requisite codal articles, the Court finds that Plaintiff provided fair notice of her claim for negligence and the grounds upon which that claim rests.
The Complaint and other pleadings also allege that Paul Boudreaux, a vice-president of the corporation, sexually harassed Plaintiff in many different ways. The Court finds that those allegations are sufficient, without a specific pleading of respondeat superior (vicarious liability of the employer for damages occasioned by the employee within the course and scope of employment), to place Defendants on notice of Plaintiff's claim of respondeat superior for the actions of Paul Boudreaux and the grounds upon which that claim rests.
Accordingly, the Court DENIES Defendants' motion to dismiss claims under Articles 2316 and 2320 of the Louisiana Civil Code.
C. Claim for Breach of Contract under Louisiana Law
The Complaint and various other pleadings make quite clear that Plaintiff has been alleging all along that she is entitled to bonus money under some explicit or implied contract. Even if Plaintiff never stated the contract theory in so many words, the pleadings and the pretrial order provided fair notice of Plaintiff's claim for breach of contract and the grounds upon which that claim rests. Accordingly, the Court DENIES Defendants' motion to dismiss Plaintiff's claim for breach of contract.
D. Claim for Failure to Have Written Policy on Sexual Harassment in Workplace
The Court finds that none of the pleadings served notice on Defendants of a specific claim for failure to have a written policy on sexual harassment in the workplace. Accordingly, the Court GRANTS Defendants' motion to dismiss the claim.
The Court notes that it seriously doubts whether a cause of action for failure to have a workplace policy on sexual harassment is even cognizable. While the United States Supreme Court has found that the Equal Employment Opportunity Commission has a policy encouraging workplace procedures to address sexual harassment, see Faragher v. City of Boca Raton, 524 U.S. 775, 806, 118 S.Ct. 2275, 12292, 41 L.Ed.2d 662 (1998), and that anti-harassment policies further the purpose of Title VII, see Kolstad v. American Dental Association, 527 U.S. 526, ___ 119 S. Ct. 2118, 2129, 144 L.Ed.2d 494 (1999), the Supreme Court has never found a unique cause of action based on the failure to have a sexual harassment policy in the workplace. This Court has discovered no other court that has found such a cause of action. Furthermore, the Court observes that the absence of such a policy could serve as evidence in a discrimination or negligence case; however, it is quite doubtful that it could form a cause of action on its own because the mere absence of a policy cannot prove causation or damages.
E. Claims Against the Individual Named Defendants
Plaintiff readily admits that she cannot bring a claim against an individual for sexual harassment under either Title VII, 42 U.S.C. § 2000e, et seq., or under Louisiana antidiscrimination law, La. R.S. 23:331, et seq. See Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994) (Title VII) and Devillier v. Fidelity Deposit Co. of Maryland, 709 So.2d 277, 280-81 (La.Ct.App. 3d Cir. 1998) (La. R.S. 23:332). Therefore, the Court GRANTS AS UNOPPOSED Defendants' motion to dismiss statutory sexual harassment claims against the individual defendants.
However, as explained above, Plaintiff's claims for the intentional torts of infliction of emotional distress assault and battery still remain. Plaintiff may assert claims against the individual Defendants for an intentional tort. Therefore, the Court DENIES Defendants' motion to dismiss intentional tort claims against the individual defendants.
F. Claim for Penalties and Attorney's Fees Under La. R.S. 23:631-632
Plaintiff originally asserted this claim in her original Complaint at ¶ 30. Therefore, the Court finds that Defendants had sufficient notice of this claim and the grounds on which it is based. Accordingly, the Court DENIES Defendants' motion to dismiss Plaintiff's claim for penalties and attorney's fees under La. R.S. 631-632.
Defendants argue that a bonus is not "wages" under La. R.S. 23:631-632 and thus that an employer cannot be held liable for penalties and attorney's fees under this statutory provision. First, the Court notes that, because Defendants have long had notice of this claim, a motion to dismiss this claim now is clearly untimely. Second, the Court also notes that whether a bonus constitutes wages for purposes of La. R.S. 23:631-632 is an unsettled issue in the Louisiana courts and is a mixed question of law and fact. Compare Dore v. WHC Lease Service, Inc., 528 So.2d 235, 239 (La.Ct.App. 3d Cir. 1988) (since bonus was not regular hourly, daily, or weekly payment, La. R.S. 23:631-632 cannot apply to bonus) with Thomas v. Orleans Private Industry Council, Inc., 669 So.2d 1275, 1279-80 (La.Ct.App. 4th Cir. 1996) (although the contract at issue did not specify when bonus would be paid, bonus clearly represented remuneration for services over the previous year and therefore constituted "wages" under La. R.S. 23:631-632). See also Batiansila v. Advanced Cardiovascular Systems, Inc., 952 F.2d 893 (5th Cir. 1992) (declining to determine fact issue of whether bonus plaintiff claimed was within employment contract and thus covered by statute because issue was not properly briefed before district court). If Defendants wished for this Court to resolve this matter of law, they should have brought a motion within the time provided by the Court's scheduling order.
II. MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S EXPERT DAN CLIFFE
Defendants move the Court to exclude Plaintiff's proposed expert Dan Cliffe from testifying at trial. The Court issued a scheduling order dated September 9, 1999 that set a deadline for Plaintiff to deliver expert reports to Defendants no later than ninety days prior to the final pretrial conference. See Rec. Doc. 12. Upon Plaintiff's unopposed motion, this Court continued that deadline for thirty additional days from January 14, 2000 to February 11, 2000. See Rec. Doc. 21. Plaintiff however failed to submit to Defendants a report from proposed expert Cliffe within that extended period. Thus, the Court finds that Plaintiff has violated the scheduling order.
In the scheduling order, the Court stated that it "will not permit any witness, expert or fact, to testify or any exhibits to be used unless there has been compliance with this order as it pertains to the witness and/or exhibits, without an order to do so on motion for good cause shown." See Rec. Doc. 12. Accordingly, because Plaintiff has violated the scheduling order by failing to submit to Defendants a report from proposed expert Cliffe, the Court will not permit Cliffe to testify. The Court therefore GRANTS Defendants' motion in limine to exclude Plaintiff's expert Dan Cliffe.
III. MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S CHARACTER WITNESSES GARY CHAUVIN, ELAINE FLANAGAN, CHARLES BALLAY, AND STEPHEN BRAUD
The Defendants move the Court to exclude Plaintiff's character witnesses Gary Chauvin, Elaine Flanagan, Charles Ballay, and Stephen Braud.
Under Fed.R.Evid. 404, "[e]vidence of a person's character or a trait of character is [generally] not admissible for the purpose of proving action in conformity therewith on a particular occasion." Fed.R.Evid. 404(a). The Rule provides certain exceptions for evidence of the character of an accused or a victim. See Fed.R.Evid. 404(a)(1)-(2). The Rule further provides an exception for evidence of the character of a witness when used to impeach the witness with evidence of the witness's character and conduct and/or evidence of the witness having been convicted of a crime. See Fed.R.Evid. 404(a)(3) (cross-referencing Fed.R.Evid. 607-609). The Rule also allows an exception where evidence of other crimes, wrongs, or acts is offered not to prove conformity therewith on a particular occasion but rather "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See Fed.R.Evid. 404(b).
Therefore, insofar as these witnesses will testify to Plaintiff's character, the Court finds that that testimony would be inadmissible unless it fell under one of the exceptions to Rule 404. As a practical matter from the facts of this case, the only exception that the testimony could fall under would be the exception for character evidence offered for purposes other than to prove conformity therewith on a particular occasion. If the character evidence can fall within that exception, it will be admissible. Otherwise, it is not admissible.
The pretrial order, however, states that each of these witnesses' proposed testimony will concern "[f]acts and circumstances of plaintiffs employment with defendants, sexual harassment by defendants, policies and procedures of Kody Marine." Rec. Doc. 60 (Pretrial Order), at 20. Therefore, the Court is under the impression that these witnesses, if called, will testify to matters other than Plaintiff's character. Therefore, insofar as these witnesses will testify to issues other than Plaintiff's character, their testimony is admissible, subject of course to any other proper evidentiary objection Defendants may lodge during trial.
Accordingly, the Court GRANTS Defendants' motion in limine to exclude character witnesses only insofar as the named witnesses will testify to inadmissible character evidence. The Court however DENIES the motion insofar as the witnesses will testify to issues other than Plaintiff's character.
IV. CONCLUSION
The Court, as explained above, ORDERS the following:
(1) Motion to dismiss claim for intentional tort of assault and battery is hereby DENIED;
(2) Motion to dismiss claims under Articles 2316 and 2320 of the Louisiana Civil Code is hereby DENIED;
(3) Motion to dismiss claim for breach of contract is hereby DENIED;
(4) Motion to dismiss claim for failure to have a written policy for harassment in the workplace is hereby GRANTED;
(5) Motion to dismiss claims against Clyde Naquin and Paul Boudreaux is hereby GRANTED AS UNOPPOSED as to sexual harassment claims under Title VII and La. R.S. 23:331, et seq. but is DENIED as to claims for the intentional torts of assault and battery;
(6) Motion to dismiss claims for penalties and attorney's fees under La. R.S. 23:631-632 is hereby DENIED;
(7) Motion in limine to exclude testimony of Plaintiff's Expert Witness Dan Cliffe is hereby GRANTED; and
(8) Motion in Limine to exclude testimony of character witnesses is hereby GRANTED only insofar as those named witnesses will testify to impermissible character evidence but is DENIED insofar as those named witnesses will testify for any other purpose.
New Orleans, Louisiana, this 17 day of April, 2000.