Opinion
Civil Action No. 00-2993 Section "C"(5).
June 21, 2001.
MINUTE ENTRY ORDER REASONS
On June 20, 2001, the Court heard oral argument on Defendants' Motion to Dismiss. After considering the arguments of counsel, the record and the applicable law, IT IS ORDERED that the Motion to Dismiss particular claims raised by the Plaintiff is hereby GRANTED.
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a district court must accept the factual allegations of the complaint as true and resolve all ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). Unless it appears "beyond a doubt that the plaintiff can prove no set of facts in support of his claim," the complaint should not be dismissed for failure to state a claim. Id. at 284-285 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, conclusory allegations or legal conclusions masquerading as factual conclusions will not defeat a motion to dismiss.See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (citing Fernandez-Montes. 987 F.2d at 284).
From July 1997 to February 2000, Plaintiff worked for the Jefferson Parish Consolidated Sewerage Department #1 ("CSD-1 ") as a permanent employee in the class of Laborers at CSD-1 Public Works Sewerage Lift Station in Marrero, Louisiana ("Station"). Plaintiff was apparently only one of two women employed at the Station, and the only woman employed in a non-clerical position. Plaintiff worked at the Station with Ron Bordelon, the Lift Station Superintendent II, along with Ted Bane and Phil Totora, who were both Sewerage Maintenance Superintendents at the Station. In her complaint, Plaintiff alleges that in September 1998, Bane removed her from a physically demanding clean-up job at the Lafitte Pumping Station and replaced her with a male employee, thereby preventing her from earning overtime, because he felt that the job was too strenuous for a woman. Two months after the Lafitte incident, Plaintiff filed a complaint of sex discrimination with the Director of the CSD-1, alleging that she has been discriminated against on the basis of sex when she was removed from the clean-up job and precluded from earning overtime pay. The New Orleans District Office of the Equal Employment Opportunity Commission ("EEOC") found that the CSD-1 had committed sex discrimination against Dumas when it refused to allow her to work on the clean-up and replaced her with a male co-worker. Likewise, the Jefferson Parish Department of Human Resource Management found that Dumas was pulled off the Lafitte clean-up job because her supervisors thought that she would not be able to complete the tasks required simply because she was a woman, rather than because of any failure of Plaintiff to accomplish her assignment.
See Plaintiffs Second Amended Complaint at ¶ 11.
See id. at ¶¶ 17-19.
See id. at ¶ 23.
See id. at ¶ 24.
See id. at ¶ 25.
After lodging these complaints, Plaintiff applied for but was denied promotions to two positions for which she was allegedly qualified, with the positions ultimately being filled by male applicants. Plaintiff filed a second grievance against Bordelon, Barze and Tatora, alleging retaliation, denial of promotion and harassment on May 13, 1999 Plaintiff alleges that after the filing of her complaints in November 1998 and May 1999, she suffered discriminatory treatment at the hands of her co-workers including: denial of a new uniform, when all other employees received a new one; assignment to menial tasks that other similarly situated males were not asked to do, such as cleaning rooms and weeding a fence alone. Plaintiff also claims that her male co-workers and supervisors stood over her while she worked alone in a 10-foot deep manhole in an attempt to humiliate and intimidate her, so that she would refuse to perform the task to which she had been assigned. Finally, Plaintiff apparently learned that when she was out with an on-the-job injury, Tortora said to one of his co-workers, "That's why I don't want to hire no women to work here." Plaintiff filed a complaint in federal court naming Jefferson Parish, Bordelon, Bane and Tatora as defendants, bringing federal claims under Title VII, due process, and La. R.S. 23:332 against Jefferson Parish, and state law claims for breach of contract and intentional infliction of emotional distress against all of the defendants.
See id. at ¶ 26.
See id. at ¶ 28. In her complaint, Plaintiff alleges that each of these individuals were empowered to make decisions concerning the work assignments, promotion, transfer and training opportunities of Dumas."Id. at ¶¶ 12-14.
See id. at ¶ 33.
See id. at ¶ 32.
See id. at ¶ 35.
See id. at ¶ 34.
Id. at ¶ 36.
Defendants have filed a motion to dismiss on several grounds. First, Defendants allege that Plaintiff has no state law contract claim against the individual defendants because there is no privity of contract between the Plaintiff and her fellow employees. Second, Defendants maintain that the factual assertions in Plaintiffs complaint do not rise to the level of intentional infliction of emotional distress with regard to any individually named defendant nor, when the allegations are viewed collectively, would they result in liability for Jefferson Parish.
Various other subsidiary claims were disposed of summarily at oral argument. Specifically, Defendant's motion to dismiss for failure to name a proper party was dismissed as moot in light of Plaintiffs amendment to the complaint, rectifying the error. Plaintiff conceded that any claim for negligent infliction of emotional distress would be precluded by La. R.S. 23:1032, and has voluntarily dismissed this claim. See also Plaintiffs June 12 Opposition at 2 Plaintiffs have also conceded that they may not bring a Title VII claim against Ron Bordelon, maintain that her complaint does not encompass such an allegation. Finally, the Court notes, Plaintiff does not contest, that there can be no claim under La. R.S. 23 :332 against the individually named defendants, as they are not "employers" under the statute.
Defendants argue that no breach of contract claim exists as a matter of law because there is no privity of contract between the Plaintiff and her fellow employees — the contract is between the parish and Dumas. Therefore, while her breach of contract claim remains intact against Jefferson Parish, Plaintiff has no claim for breach of contract against the individual defendants. See, e.g., Rivnor Properties v. Herbert O'Donnell, Inc., 633 So.2d 735, 742 (La.App. 5th Cir. 1994), writs denied, 643 So.2d 147 (La. 1994) ("no action for breach of a construction contract may lie in the absence of privity of contract between the parties"). Plaintiff, however, has insisted that she can bring a breach of contract claim under Civil Code article 1978, because she is an intended third-party beneficiary of the "contractual agreement provided by the Regulations of Conduct for employees of Jefferson Parish and the Jefferson Parish personnel rules."
La. Civ. Code. art. 1978 ("A contracting party may stipulate a benefit for a third person called a third party beneficiary. Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary's agreement.")
See Plaintiffs June 12 Opposition at 4.
As a preliminary matter, the Court questions the Plaintiffs characterization of the Regulations of Conduct as an independent "contract" between Jefferson Parish and its employees. Even assuming arguendo, however, that these Regulations have a contractual effect, the Court finds that Plaintiff is not an intended beneficiary of this "contract." The Fifth Circuit has held that simply because a third-party derives some benefit from a contract does not automatically mean that the third-party can sue to enforce the contract. See Wallace v. Texaco, 681 F.2d 1088, 1090 (5th Cir. 1982) ("A contract is a stipulation pour autrui if it clearly reveals that the intent of the contracting parties was to provide a benefit to a third party. The benefit to the third party must be more than merely incidental to the contract; it must be part of the condition or consideration for the contract. The fact that a third party derives a benefit from a contract does not render the contract pour autrui.") (internal citations omitted). See also Hampton v. Dillard Dep't Stores. 247 F.3d 1091, 1119 (10th Cir. 2001) ("The `[p]erformance of a contract will often benefit a third person. But unless the third person is an intended beneficiary . . . no duty to him is created.' Restatement (Second) of Contracts, § 302 cmt. e. An incidental beneficiary is a person who will be benefited by performance of a promise but who is neither a promisee nor an intended beneficiary. [citation omitted]").
Louisiana jurisprudence makes it plain that in order for a third-party beneficiary right to be cognizable, the provision creating the right must be made "manifestly clear." Guidry v. Hedburg, 722 So.2d 1036, 1041 (La.App. 3d Cir. 1998). The most common example of a third-party beneficiary contract is one where an individual specifically agrees to assume the debts of a third person. The language cited by Plaintiff in the employment contract and/or Regulations, however, was clearly not confected for the specific benefit of Plaintiff; therefore, she does not have the ability to sue to enforce these contractual provisions between the individual defendants and Jefferson Parish. Therefore, Plaintiffs state law breach of contract claims against Bordelon, Barze and Tatora must fail and are hereby DISMISSED WITH PREJUDICE.
In the alternative, to support her breach of contract claim, Plaintiff has attempted in her Opposition to articulate a claim for tortious interference with contractual relations. However, Plaintiffs complaint, as it currently reads, has only alleged violations of Title VII, La. R.S. 23:332, breach of contract, violation of due process, and intentional infliction of emotional distress. See Second Amended Complaint at 8 (Rec. Doc. 26). "Tortious interference" is an independent claim, and therefore, does nothing to resuscitate her breach of contract claim.
With regard to the claims of intentional infliction of emotional distress, Defendant cites Nicholas v. Allstate Ins. Co., 765 So.2d 1017 (La. 2000), for the proposition that Plaintiff has not properly made out a claim against either the individual defendants for their conduct or against Jefferson Parish for the cumulative effect of its employees actions against her. In order to sustain this claim, a party must allege and prove that (1) the conduct of the defendant is extreme and outrageous; (2) that the emotional distress suffered was severe; and (3) that the defendant desired to inflict emotional distress or knew that such distress was certain or substantially certain to result from the conduct. See id. at 1023 (citing White v. Mosanto Co., 585 So.2d 1205, 1209 (La. 1991)). Plaintiff's complaint contains allegations of discrimination — lost overtime pay, inferior work assignments, an inappropriate comment about women — but comparing her factual assertions with the exhaustive list contained in Nicholas makes it clear to this Court that whatever harm she suffered is insufficient to qualify as intentional infliction of emotional distress. See 765 So.2d at 1025-27. The actions of Bordelon, Bane and Tatora, when viewed cumulatively, cannot be characterized as sufficiently egregious to transform what might be seen as a claim of negligent infliction of emotional distress, which is encompassed by the Worker's Compensation Statute, to the level of an intentional tort. Therefore, IT IS ORDERED that this claim against Jefferson Parish shall be DISMISSED WITH PREJUDICE. Likewise, the conduct of any one of these individual defendants also does not rise to the level of intentional infliction of emotional distress. Consequently, IT IS FURTHER ORDERED that this count is hereby DISMISSED WITH PREJUDICE with regard to Defendants Bordelon, Barze and Tatora.
As a result of the foregoing rulings, all claims against Defendants Ron Bordelon, Ted Bane and Phil Tatora have been DISMISSED WITH PREJUDICE and these parties are hereby dismissed as defendants from the litigation. Likewise, Plaintiffs claim for intentional infliction of emotional distress against Jefferson Parish is also hereby DISMISSED WITH PREJUDICE. The Court encourages counsel to pursue an amicable resolution of Plaintiffs remaining claims against Jefferson Parish, which were not address by the Motion to Dismiss.