Ella Mae Leday v. Ville Platte Housing Authority

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-965

ELLA MAE LEDAY

VERSUS

VILLE PLATTE HOUSING AUTHORITY, ET AL.

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 63773-B
HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux Chief Judge, John D. Saunders, and
Billy Howard Ezell, Judges.

AFFIRMED.

John Powers Wolff, III
Kyle Ferachi
Keogh, Cox & Wilson
P. O. Box 1151
Baton Rouge, LA 70821
(225) 383-3796
Counsel for Defendant/Appellee:
Ville Platte Housing Authority

Barry Louis Domingue
Simon Law Offices
P. O. Box 52242
Lafayette, LA 70505
(337) 232-2000
Counsel for Plaintiff/Appellant:
Ella Mae Leday

EZELL, JUDGE.

In this matter, Ella Leday appeals the decision of the trial court, granting

summary judgment in favor of the Ville Platte Housing Authority (VPHA). For the

following reasons, we affirm the decision of the trial court.

Ms. Leday filed this suit, alleging that between August 1998 and September,

1999, she sustained injuries as a result of sexual harassment and discrimination while

employed by the VPHA. In a previous summary judgment, Ms. Leday’s state law

claims were dismissed. However, this court ruled that she still retained her rights to

file suit under Title VII of the Civil Rights Act of 1964. The VPHA then filed

another motion for summary judgment, claiming that it was not an “employer” under

the federal statute, as it employed too few workers to be covered by Title VII.

Initially, the trial court denied the motion for summary judgment, concerned with the

relationships between the VPHA and the United States Department of Housing and

Urban Development (HUD) and with the City of Ville Platte. After additional

discovery, the VPHA resubmitted its motion for summary judgment with additional

evidence. The trial court then granted the VPHA’s motion for summary judgment.

From this decision, Ms. Leday appeals.

Ms. Leday asserts one assignment of error on appeal)that the trial court erred

in granting summary judgment in favor of the VPHA. We disagree.

As noted in Sidwell v. Horseshoe Entertainment Ltd. Partnership, 35,718, pp.

2-3 (La.App. 2 Cir. 2/27/02), 811 So.2d 229, 230-31:

The summary judgment procedure is designed to secure the just,
speedy, and inexpensive determination of every action, except those
disallowed by law; the procedure is favored and must be construed to
accomplish these ends. La. C.C.P. art. 966(A)(2); Yarbrough v. Federal
Land Bank of Jackson, 31,815 (La.App.2d Cir.03/31/99), 731 So.2d
482. The motion should be granted only if the pleadings, depositions,
answers to interrogatories and admissions on file, together with
affidavits, show that there is no genuine issue of material fact and that

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the mover is entitled to judgment as a matter of law. La. C.C.P. art.
966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.01/21/98),
707 So.2d 459. The burden of proof remains with the mover. However,
if the party moving for summary judgment will not bear the burden of
proof at trial on the matter that is before the court on the motion for
summary judgment, then that party need not negate all essential
elements of the adverse party’s claim, action, or defense but may simply
point out to the court that there is an absence of factual support for one
or more elements essential to the adverse party’s claim, action, or
defense; thereafter, if the adverse party fails to produce factual support
sufficient to establish that it will be able to satisfy the evidentiary burden
of proof at trial, there is no genuine issue of material fact. See, La.
C.C.P. art. 966(C)(2). When a motion is made and supported, as
required by La. C.C.P. art. 966, an adverse party may not rest on the
mere allegations or denials of his pleadings, but his response must set
forth specific facts showing a genuine issue for trial. Otherwise,
summary judgment, if appropriate, shall be rendered against him. La.
C.C.P. art. 967.

Appellate courts review summary judgments de novo under the
same criteria that govern a district court’s consideration of whether
summary judgment is appropriate. Kennedy v. Holder, 33,346
(La.App.2d Cir.05/10/00), 760 So.2d 587.

In order to be liable under Title VII a defendant must fall within the statutory

definition of employer and exercise substantial control over significant aspects of the

compensation, terms, conditions, or privileges of plaintiff’s employment. Magnuson

v. Peak Tech. Servs., Inc., 808 F.Supp. 500 (E.D.Va.1992), aff’d without opinion, 40

F.3d 1244 (4th Cir. 1994). Under 42 U.S.C. § 2000e(b) (emphasis added) an employer

means “a person engaged in an industry affecting commerce who has fifteen or more

employees for each working day in each of twenty or more calendar weeks in the

current or preceding calendar year. . . .” (Emphasis added). It is clear that the VPHA

had only eight to ten employees throughout the time in question. Therefore, to

proceed with her claim, Ms. Leday is attempting to aggregate this number with that

of either HUD or the City as integrated enterprises.

Under the “single employer” test of Trevino v. Celanese Corp., 701 F.2d 397,

404 (5 Cir. 1983), the factors this court should consider in determining whether the

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VPHA and either HUD or the City are integrated enterprises are: (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 of whether the parent corporation was a final

decision-maker in connection with the employment matters underlying the litigation.

Trevino, 701 F.2d 397.

It is clear from the record that neither HUD nor the City had any control over

the VPHA. The mayor of Ville Platte appointed members to the Board of Directors

of the VPHA, but, otherwise had no control over the agency. He testified that he did

not attend board meetings, did not participate in the business of the VPHA, nor did

he exercise any control, whatsoever, over the hiring and firing of VPHA employees.

The City was not responsible for any debts or liabilities of the VPHA, and no

employees of the agency were paid from the City’s general fund. Eldridge Hickerson,

the current Executive Director of the VPHA, similarly stated that he had sole

authority over employment decisions and that the VPHA received no monetary

contributions from the City. He further attested that the only money the VPHA

received from HUD was in the form of grants and that HUD, like the City, exercised

no control over any employment decisions the VPHA made. Likewise, the affidavit

of Cheryl Williams, a representative for HUD with personal knowledge of the

relationship between HUD and the VPHA, attested that the VPHA is not now, and

never has been, a subsidiary of HUD.

To the contrary, Ms. Leday offers no evidence whatsoever, other than her own

affidavit, which is conclusory and speculative at best, and conjecture that the Mayor

of Ville Platte could strong-arm VPHA board members.1 Competent summary

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Ms. Leday asserts that a response to an EEOC request for information amounted to a judicial
admission that the VPHA was a HUD subsidiary, thereby allowing the employees of the VPHA and

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judgment evidence does not consist of conclusory allegations. Duet v. Martin

Marietta Corp., 98-1329 (La.App. 4 Cir. 11/10/98), 720 So.2d 1290, writ denied, 99-

126 (La. 3/19/99) 740 So.2d 112. Ms. Leday’s burden under La.Code Civ.P. art.

966(C)(2) was to produce factual support showing the existence of a genuine issue

as to the VPHA’s employer status. She failed to do so. Without meeting the

threshold requirement of showing that her employer employed fifteen people, Ms.

Leday cannot pursue her Title VII claim. Accordingly, the trial court was correct in

granting the VPHA’s motion for summary judgment.

For the above reasons, the decision of the trial court is hereby affirmed. Costs

of this appeal are assessed against Ms. Leday.

AFFIRMED.

THIS OPINION NOT DESIGNATED FOR PUBLICATION.
Rules 2-16.2 and 1-16.3, Uniform Rules, Court of Appeal.

HUD to be aggregated for purposes of reaching the required number for this suit to go forward.
However, the statement was not made as part of a judicial proceeding and was neither sworn nor
verified. It in no way qualifies as a judicial admission. Moreover, testimony by HUD representative
Cheryl Jenkins establishes this allegation to be incorrect.

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