Opinion
No. 99-3769
May 15, 2000
ORDER AND REASONS
Plaintiff, Connie LeBlanc, sued her former employer, Bryan Imports, Inc. d/b/a Bryan Mitsubishi and Bryan Chevrolet, Inc. (collectively hereinafter referred to as "Bryan" or "defendant"). LeBlanc asserts claims of gender discrimination and sexual harassment in the workplace under both federal and state law, and of intentional infliction of emotional distress and defamation under Louisiana law. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) upon the written consent of all parties. Record Doc. No. 6.
In her amended complaint, LeBlanc asserted that both defendants are liable as her employer under a "single business enterprise' theory. Employer status is a prerequisite to liability under both federal and state anti-discrimination law. However, neither defendant has argued or presented competent evidence in their joint motion for summary judgment that it was not her employer. Accordingly, the Court assumes, for purposes of the pending motions, that both defendants could be liable as plaintiff's employer.
Bryan moved for summary judgment on LeBlanc's claims of gender discrimination and sexual harassment only. Record Doc. No. 11. Plaintiff filed a timely opposition memorandum. Record Doc. No. 14. Bryan received leave to file a reply memorandum. Record Doc. Nos. 15, 16.
In addition, plaintiff's motion to compel discovery is pending in part as to certain discovery requests that were previously deferred until a decision on the motion for summary judgment was rendered. Record Doc. No. 13.
Having considered the complaint, the record, the affidavits, depositions and exhibits submitted, the arguments of the parties and the applicable law, and for the following reasons, IT IS ORDERED that Bryan's motion for summary judgment is DENIED. IT IS FURTHER ORDERED that plaintiff's motion to compel discovery is GRANTED subject to the limitations discussed below.
I. BRYAN'S MOTION FOR SUMMARY JUDGMENT A. Summary Judgment Standards
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit. Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II. Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citingCelotex Corp., 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249-50 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248. No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of her claim. Id. (citing Celotex Corp., 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof. assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original).
B. Material Fact Disputes Preclude Summary Judgment on Plaintiff's Sexual Discrimination and Harassment Claims
Summary judgment on LeBlanc's claims of sexual discrimination and harassment in employment is not appropriate because genuine issues of material fact remain in dispute, which, viewed in plaintiff's favor, could enable her to establish her claims against Bryan under Title VII and Louisiana anti-discrimination law.
The record includes competent summary judgment evidence of statements made by plaintiff's supervisors and co-workers at Bryan from October 1996 through October 10, 1997 that preclude summary judgment in Bryan's favor. LeBlanc's verified Supplemental and Amending Answer to Defendant's Interrogatory No. 7 recites at least twenty-one instances when her immediate supervisor, Sales Manager Tony LaRosa; other managers, namely Assistant Sales Manager Don Gremillion and Parts Manager Jay Babin; and unnamed Bryan salesmen allegedly made sexually oriented comments to or about her that a reasonable factfinder could find offensive, both objectively and subjectively, and so severe or pervasive as to alter the terms and conditions of plaintiff's employment.
Contrary to Bryan's assertions in its reply memorandum, LeBlanc's verified interrogatory answers and sworn deposition testimony concerning factual events do not consist merely of her "subjective belief" or mere allegations of her pleadings that she was sexually harassed or constructively discharged. Further, the burden of proof in discrimination cases does not require her to produce "corroborating evidence" of events in which she participated and about which she is competent to testify. Fed.R.Civ.P. 56(e).
LeBlanc's Supplemental and Amending Answer to Interrogatory No. 7 also cites two instances that could be perceived as "quid pro quo" harassment by her immediate supervisor, LaRosa. He allegedly offered to give her a "demo" car if she had an affair with him and informed her "many times" that she had better be "nice" to him because she was in jeopardy of being laid off. Plaintiffs' Exh. 2. LeBlanc testified at her deposition concerning these and other incidents that she considered, and that a reasonable factfinder could find to be, sexually offensive. Plaintiffs' Exh. 1, LeBlanc deposition Vol. 1, at pp. 138-39, 145-46, 155; Vol. 2, at pp. 9-10, 14, 30, 45, 48, 65, 85- 86, 93, 94.
Material fact issues remain in dispute, including but not limited to the following: whether Bryan knew or should have known of the alleged sexual harassment of plaintiff by her co-workers; whether LaRosa engaged in quid pro quo sexual harassment; whether LeBlanc suffered a tangible employment action (i.e., constructive discharge); whether the totality of the circumstances amounted to offensive conduct that was so severe or pervasive as to create a sexually hostile working environment; whether Bryan had an effective and accessible policy that demonstrated its exercise of reasonable care to prevent and correct promptly sexually harassing behavior; and whether LeBlanc unreasonably failed to take advantage of Bryan's procedures for reporting and correcting such behavior. See Burlington Indus. v. Ellerth, 524 U.S. 742, 760- 62, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 72 (1986); Watts v. Kroger Co., 170 F.3d 505, 509-10 (5th Cir. 1999); Indest v. Freeman Decorating. Inc., 168 F.3d 795, 799-803 (5th Cir. 1999) (Wiener, J., concurring); Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 971-72 (5th Cir. 1999); Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 873-74 (5th Cir.), cert. denied, 120 S.Ct. 395 (1999).
Accordingly, Bryan has not shown that it is entitled to summary judgment on plaintiff's employment discrimination claims.
II. PLAINTIFF'S MOTION TO COMPEL DISCOVERY
LeBlanc's motion to compel was previously deferred as to Interrogatories No. 7, 8, 10, 16 and 17 and Requests for Production of Documents No. 9, 14 and 15. IT IS ORDERED that the motion to compel is GRANTED as follows. The following legal principles are relevant to ruling on defendants' objections to these discovery requests.
Defendants correctly assert in their opposition to plaintiff's motion to compel that they cannot be liable for employment discrimination under Title VII or Louisiana anti-discrimination law unless they were plaintiff's "employer." Kormorowski v. Townline Mini-Mart Restaurant, 162 F.3d 962, 966 (7th Cir. 1998); Deal v. State Farm County Mut. Ins. Co., 5 F.3d 117, 118 (5th Cir. 1993); Triche v. Crescent Turnkey Eng'g. L.L.C., 744 So.2d 689, 692 (La.App. 5th Cir. 1999), writ denied, 752 So.2d 869 (La. 2000). However, they have not moved to dismiss or for summary judgment based on them contention that Bryan Chevrolet, Inc. wasnot LeBlanc's employer.
Both Title VII and Louisiana anti-discrimination law define "employer" based on the number of an entity's employees over a certain time period.See 42 U.S.C. § 2000e(b) (an "employer" is an entity with fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year); La. Rev. Stat. § 51:2232(4) (an "employer" is an entity with eight or more employees) (repealed eff. Aug. 1, 1997); La. Rev. Stat. § 23:331(A) (an "employer" is an entity who employs more than fifteen employees in this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year) (eff. Aug. 1, 1997)
Plaintiff's allegations span the time period when the Louisiana statutory definition changed.
Plaintiff alleges that the two defendants constitute a "single business enterprise" and that each of them can be held liable for the discriminatory actions she allegedly suffered.
To determine whether related corporations may be regarded as a "single employer" in a discrimination case, the Court applies a four-part analysis.
The four factors to consider include: (1) interrelation of operations, (2) centralized control of labor or employment decisions, (3) common management, and (4) common ownership or financial control. This analysis ultimately focuses on the question whether the parent corporation was a final decision-maker in connection with the employment matters underlying the litigation, and all four factors are examined only as they bear on this precise issue.Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 777-78 (5th Cir. 1997) (citations omitted).
In addition, LeBlanc has requested both compensatory and punitive damages. Section 1981a of the Civil Rights Act of 1991 places a cap on certain types of compensatory damages and punitive damages that may be awarded in a Title VII case, depending on the number of employees employed by the liable employer. 42 U.S.C. § 1981a.
Considering the Lusk factors, the statutory definitions of "employer" and the damages cap based on employer size, the discovery sought by plaintiff's Interrogatory Nos. 7, 10, 16 and 17 and Request for Production No. 14, concerning the number of employees of Bryan Chevrolet, Inc.; the names of directors, officers and shareholders of both companies; and Bryan Chevrolet, Inc.'s harassment policy is relevant and reasonably calculated to lead to admissible evidence on those issues.
Moreover, under federal law, evidence of a defendant's financial worth and ability to pay is traditionally admissible for the purpose of evaluating the amount of punitive damages that should be awarded. United States v. Big D Enters., 184 F.3d 924, 932 (8th Cir. 1999) (citing City of Newport v. Fact Concerts. Inc., 453 U.S. 247, 270 (1981)); Mathie v. Fries, 121 F.3d 808, 816 (2d Cir. 1997); Hutchinson v. Stuckey, 952 F.2d 1418, 1422 n. 4 (D.C. Cir. 1992); but see Florez v. Delbovo, 939 F. Supp. 1341, 1344 (N.D. Ill. Sept. 12, 1996) (questioning viability of this rule since the Supreme Court's decision in BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), which established three "guideposts" for determining excessiveness of a punitive damages award; defendant's financial status is not one of the guideposts).
Therefore, plaintiff's Interrogatory No. 8 and Request for Production No. 9 seek information relevant to her punitive damages claim. Defendants' objections of vagueness, overbreadth and undue burden to these discovery requests are overruled. The requests are clear, well defined and limited in time span. However, IT IS ORDERED that all financial information produced in response to plaintiff's Request for Production No. 9 is subject to the protective order already in place. Record Doc. No. 4.
Finally, as to plaintiff's Request for Production No. 15, the motion to compel is GRANTED IN PART. Defendants must respond to this request, limited to complaints of harassment based on sex. Complaints of age, religion, national origin or race discrimination are not relevant to the subject matter of this gender discrimination and sexual harassment case and are not reasonably calculated to lead to the discovery of admissible evidence, Kelley v. Boeing Petroleum Servs., Inc., 61 F.3d 350. 357, 358, 360 (5th Cir. 1995), and defendants need not respond to these portions of this request.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendants' motion for summary judgment is DENIED. IT IS FURTHER ORDERED that plaintiff's motion to compel responses to Interrogatories No. 7, 8, 10, 16 and 17 and Requests for Production of Documents No. 9, 14 and 15 is GRANTED, subject to the limitations stated above. Defendants must supplement their responses fully and in writing, in accordance with Fed.R.Civ.P. 33 and 34, and make all responsive documents available to plaintiff's counsel within ten (10) days of entry of this order.