Opinion
Civil Action No: 00-3518; SECTION: "J"(2)
February 14, 2001
MINUTE ENTRY
Before the Court is the Motion to Remand (Rec. Doc. 7) filed by plaintiffs. Defendants oppose the motion. The motion, set for hearing on February 14, 2001, is before the Court on briefs without oral argument. For the reasons that follow, the Court finds that plaintiffs' motion should be GRANTED.
BACKGROUND
Defendants removed this action to federal court based on their assertion that plaintiffs fraudulently joined defendant Greg Adams in an attempt to defeat diversity. In addition to their employment discrimination claims against Professional Service Industries, Inc., the plaintiffs have alleged claims for intentional infliction of emotional distress against defendant Adams. In opposing remand, defendants argue that plaintiffs' petition does not allege facts sufficient to state a claim for intentional infliction of emotional distress under controlling state law, and that the Court should decline to look past the pleadings at the affidavits filed by plaintiffs in connection with the motion.
Plaintiffs' affidavits reflect that their supervisor, Greg Adams, continually directed racial slurs at them over a period of time extending from September 2, 1999 to June 15, 2000 (in the case of plaintiff Ruffin); and over an unspecified length of time (in the case of plaintiff Tate). The slurs included repeatedly addressing plaintiffs as "nigger," "stupid nigger," and "boy," as well as comments including "I have blacks in my family tree hanging from a rope" and "I got nothing against niggers, everyone should own one."
DISCUSSION
As the party invoking this Court's jurisdiction based on its assertion of fraudulent joinder, defendants bear the burden of establishing that plaintiffs have no possibility of recovery against Greg Adams for intentional infliction of emotional distress. Dodson v. Spiliada Maritime Corp., 951 F.2d 40 (5th Cir. 1992). Disputed questions of fact must be construed in favor of the plaintiffs. Id. Further, it is well-settled that federal courts may "pierce the pleadings" in resolving fraudulent joinder claims, and consider affidavits and depositions. Burden v. General Dynamics, Corp., 60 F.3d 213 (5th Cir. 1995). Accordingly, in considering the instant motion, the Court does not limit itself to a review of the allegations contained in the Complaint but has also considered the affidavits of plaintiffs.
The White v. Monsanto Test
To state a claim for intentional infliction of emotional distress under Louisiana law, a plaintiff must demonstrate: "(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct." White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991). In delineating what constitutes extreme and outrageous conduct, the White court opined that:
The conduct 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. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Not every verbal encounter may be converted into a tort; on the contrary, "some safety valve must be left through which irascible tempers may blow off relatively harmless steam."Id. (citations omitted).
Applying this law, courts have been hesitant to find a prima facie intentional infliction of emotional distress ("IIED") case in situations involving name-calling or the use of epithets. See, e.g., Grant v. UOP, Inc., 972 F. Supp. 1042 (W.D. La. 1996) (the use of the word "nigger" three times in plaintiff's presence does not amount to IIED); Nguyen v. Benson Toyota, Inc., 1997 WL 159521 (E.D. La. Apr. 2, 1997) (calling plaintiff a "rice-eating gook" on one occasion does not amount to IIED).
In contrast, however, in cases involving the use of harassing slurs and epithets over a period of time, courts have recognized that their cumulative effect may support an IIED claim. See, e.g., Channey v. Home Depot, USA, 1999 WL 649633 (E.D. La. Aug. 24, 1999) ("a pattern of emotionally abusive behavior, including repeated name calling (including "boy" and "nigger" in front of other employees)" may support an IIED claim); Walters v. Rubicon, 706 So.2d 503 (La.Ct.App. 1st Cir. 1997) (continuous cursing, screaming, and threats of supervisor may support an IIED claim). The instant case is more similar to this latter group, in that the name-calling and use of epithets occurred over a period of many months. And, while the Court does not condone the use of any racial epithets, the Court is also impressed by the fact that the comments attributed to Adams (especially his pro-lynching remark) rank quite a bit higher on the outrageousness scale than the garden-variety epithets found not to amount to IIED in the cited caselaw.
Finally, the Court observes that plaintiffs' IIED claims are brought in connection with their race discrimination in employment claims, and "racial discrimination in employment, if proven, can rise to the level of extreme and outrageous conduct."
Jackson v. Bayou Industries, Inc., 1995 WL 133332 (E.D. La. Mar. 27, 1995). Since plaintiffs' race discrimination claims have not received a full airing at this point, it is impossible to speculate whether they would be successful and if so, whether they would support a claim for IIED. Accordingly, the Court simply cannot determine that the conduct of defendants was not extreme and outrageous, and that there is no way that they could satisfy the first prong of the White v. Monsanto test.
With respect to the second and third prongs of the White test — namely, that the plaintiff suffered severe emotional distress and that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would result — the Court finds that while plaintiffs' allegations are scant on these points, they are sufficient.See Complaint, ¶ 11. Additionally, this Court concurs with other courts who have found that because of the fact-driven subjective inquiry into the states of mind of the actors required to satisfy prongs two and three of the White test, they are often not amenable to resolution on a motion to dismiss. Henson v. Bassett Furniture Industries, Inc., 2000 WL 1477496 (E.D. La. Oct. 4, 2000). Thus, the Court simply cannot conclude that there is no way that plaintiffs could satisfy the second and third prongs of the White test.
While the Court resolves a motion to remand in the instant Minute Entry, defendants have opposed the remand by arguing that plaintiffs' allegations are insufficient to withstand a motion to dismiss.
Because defendants have not demonstrated that there is no possibility of recovery against defendant Greg Adams, the Court cannot find that he was fraudulently joined. Diversity of citizenship between the parties is therefore lacking, and thus this Court lacks subject matter jurisdiction. Accordingly;
IT IS ORDERED that plaintiffs' Motion to Remand (Rec. Doc. 7) should be and is hereby GRANTED, and the instant matter is hereby REMANDED to the Civil District Court for the Parish of Orleans, pursuant to 28 U.S.C. § 1447(d).
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