Mayra Artigue v. Wal-Mart Stores, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-537

MAYRA ARTIGUE

VERSUS

WAL-MART STORES, INC., ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, DOCKET NO. 09-C-5247-A
HONORABLE JAMES P. DOHERTY, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Billy Howard Ezell,
Judges.

REVERSED AND REMANDED.

Charlotte C. McDaniel McGehee
6513 Perkins Road
Baton Rouge, LA 70808
(225) 389-6711
ATTORNEY FOR PLAINTIFF/APPELLANT
Mayra Artigue

Stephen P. Beiser
Susanne Veters
McGlinchey Stafford
601 Poydras Street, 12th Floor
New Orleans, LA 70130
(504) 586-1200
ATTORNEY FOR DEFENDANT/APPELLEE
Wal-Mart Stores East, LP

COOKS, Judge.

This is an appeal arising from a judgment granting a motion for summary

judgment in favor of Defendant, Wal-Mart Stores East, LP, finding the Plaintiff,

Mayra Artigue, cannot establish a prima facie case of sexual harassment or a claim

for intentional infliction of emotional distress.

FACTS AND PROCEDURAL HISTORY

Plaintiff was hired as an Unloader at Wal-Mart’s Opelousas Distribution

Center on July 28, 2008. Wal-Mart notes she was put through an orientation

consisting of classes, tests and videos relating to Wal-Mart’s anti-harassment

policies and procedures. Accordingly, Wal-Mart maintains Plaintiff was aware

that Wal-Mart had a zero tolerance policy towards sexual harassment and that all

incidents of harassment were to be reported to management.

On August 16, 2008, Plaintiff requested and received a transfer at the

Distribution Center from the weekday to the weekend shift. One of her three area

managers was Titus Joubert. Plaintiff maintained she was repeatedly harassed by

Joubert, finally culminating in him touching her private parts on October 4, 2008,

while inside a trailer. The incident was unwitnessed. Immediately following the

alleged touching of her private parts, Plaintiff stated that Joubert responded “it’s

okay” and continued to speak to her about work before he left the trailer and

returned with a bottle of water for her. Plaintiff left work that day before her shift

ended.

On October 8, 2008, Plaintiff returned to the Distribution Center for the first

time since the October 4, 2008 incident. She reported the alleged incident to

Human Resources Manager Vivian Dawson. She was interviewed and asked to

prepare a written statement. In the written statement, Plaintiff listed five previous

instances where Joubert had made inappropriate comments or had come too close

to her. She explained she did not report these previous instances, because she

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“didn’t see much to it” at the time. Plaintiff also requested a three-week leave of

absence due to the incident.

Upon receipt of Plaintiff’s statement, Dawson began an investigation into

the allegations. Joubert was suspended without pay pending the outcome of the

investigation. Joubert and several co-workers were questioned. Joubert denied the

allegations, and there were no witnesses to the alleged incident. Thus, Dawson

was unable to substantiate Plaintiff’s claims. However, Dawson did discover, as a

result of a separate investigation that was being conducted at the Distribution

Center, Joubert had recently massaged a female worker’s shoulders. Although that

worker did not file any complaint and purported to not be offended by the massage,

Dawson determined the massage was inappropriate and Joubert should be

disciplined. On October 27, 2008, Joubert was terminated from his position with

Wal-Mart.1

Plaintiff obtained several extensions of her three-week leave of absence and

remained off of work. On November 11, 2009, Dawson informed Plaintiff by

certified letter her leave had expired on October 12, 2009. Wal-Mart’s policy

provided the maximum length for a personal absence because of a medical

condition was twelve months. Despite this, Dawson asked Plaintiff to fill out

another extension of leave form in case it was determined she was entitled to

another extension due to special circumstances. Dawson also informed Plaintiff if

she failed to return the extension request within fifteen days she was subject to

possible termination. Plaintiff did not comply with Dawson’s request, and was

terminated on December 7, 2009.

Plaintiff filed suit against Wal-Mart and Joubert alleging hostile work

environment sexual harassment in violation of La.R.S. 23:301 et seq., and

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It was established that Joubert had been disciplined for other violations in the past, which were contributing factors
in his termination: Failure to sign out power equipment; tardiness; and failure to provide timely feedback to
employees about their performance.
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intentional infliction of emotional distress under La.Civ.Code art. 2315. After

some discovery had occurred, Wal-Mart filed a Motion for Summary Judgment

contending, based on the undisputed facts, that there was no basis for liability on

the part of Wal-Mart for any of the causes of action asserted by Plaintiff. Plaintiff

opposed the motion, contending there were disputed genuine issues of material fact

that prevented the granting of summary judgment.

A hearing was held, after which the trial court granted summary judgment in

favor of Wal-Mart. The trial court found there was essentially no dispute about the

facts (which Plaintiff strongly disagreed with) and found Plaintiff’s allegations of

harassment did not constitute the type of severe or pervasive conduct required to

establish a hostile work environment sexual harassment claim. The trial court also

found Plaintiff did not suffer any tangible employment action as a result of the

alleged harassment and could not establish a claim for intentional infliction of

emotional distress or vicarious liability on the part of Wal-Mart for any alleged

intentional tort. The trial court also found Wal-Mart was entitled to the

Ellerth/Faragher affirmative defense based on Wal-Mart’s prompt response to

Plaintiff’s complaint in accordance with its policies.

Plaintiff has appealed, asserting the trial court erred in granting Wal-Mart’s

Motion for Summary Judgment. Plaintiff argues the facts below show Wal-Mart’s

harassment policy was not enforced and a hostile work environment did exist at the

Wal-Mart in question. It is also asserted Wal-Mart is responsible to Plaintiff under

the doctrine of respondeat superior. Plaintiff further contends the trial court erred

in finding no tangible employment action occurred as a result of the alleged

harassment when Plaintiff was fired after she was put on leave without pay after

reporting the harassment.

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ANALYSIS

Appellate courts review summary judgments de novo under the same criteria

that govern the district court’s consideration of whether summary judgment is

appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342

(La.1991). A court must grant a motion for summary judgment “if the pleadings,

depositions, answers to interrogatories, and admissions admitted, together with the

affidavits, if any, admitted for purposes of the motion for summary judgment,

show that there is no genuine issue as to material fact, and that mover is entitled to

judgment as a matter of law.” La.Code Civ.P. art. 966(B). Pursuant to a 1996

amendment to the summary judgment article, the summary judgment procedure is

now favored under our law. La.Code Civ.P. art. 966(A)(2).

Paragraph C(2) of Article 966 provides:

The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’s
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
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 he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of
material fact.

The burden of proof does not shift to the party opposing the summary

judgment until the moving party first presents a prima facie case that no genuine

issues of material fact exist. Martinez v. American Steelway Industries, L.L.C., 09-

0339 (La.App. 4 Cir. 9/2/09), 20 So.3d 526. At that point, if the party opposing the

motion “fails to produce factual support sufficient to establish that he will be able

to satisfy his evidentiary burden of proof at trial, there is no genuine issue of

material fact.” La.Code Civ.P. art. 966(C)(2). Summary judgment should then be

granted. Hood v. Cotter, 08-215, p. 6 (La.12/2/08), 5 So.3d 819, 823.

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In Hardy v. Bowie, 98-2821, p. 6 (La. 9/8/99), 744 So.2d 606, 610, the

Louisiana Supreme Court stated that “[a] fact is ‘material’ when its existence or

nonexistence may be essential to plaintiff’s cause of action under the applicable

theory of recovery.” Additionally, the Supreme Court stated that “[f]acts are

material if they potentially insure or preclude recovery, affect a litigant’s ultimate

success, or determine the outcome of the legal dispute.” Id.

Plaintiff alleges she was forced to work in a hostile environment created by

repeated sexual advances toward her by her supervisor. Louisiana Revised

Statutes 23:332(A) provides that it shall be unlawful for an employer to:

(1) Intentionally fail or refuse to hire or to discharge any
individual, or otherwise to intentionally discriminate against any
individual with respect to his compensation, or his terms, conditions,
or privileges of employment, because of the individual’s race, color,
religion, sex, or national origin.

(2) Intentionally limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities, or otherwise
adversely affect his status as an employee, because of the individual’s
race, color, religion, sex, or national origin.

As this statute is similar to Title VII of the Civil Rights Act of 1964,

Louisiana courts have availed themselves of decisions found in federal

jurisprudence when interpreting claims pursuant to La.R.S. 23:332. Hicks v. Cent.

La. Elec. Co., Inc., 97-1232 (La.App. 1 Cir. 5/15/98), 712 So.2d 656.

In order to prevail on a hostile work environment claim, the claimant must

prove five elements: 1) she belonged to a protected group; 2) she was subjected to

harassment; 3) the harassment was motivated by discriminatory animus; 4) the

harassment affected a term, condition, or privilege of employment; and 5) that the

employer knew or should have known of the harassment and failed to take proper

remedial action. Edmond v. Pathfinder Energy Servs., Inc., 11-151, pp. 9-10

(La.App. 3 Cir. 9/21/11), 73 So.3d 424, 429-30 (citing Chaney v. Home Depot,

USA, Inc., 05-1484 (La.App. 4 Cir. 8/16/06), 940 So.2d 18, writ denied, 06-2286

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(La. 11/22/06), 942 So.2d 559), writ denied, 11-2234 (La. 12/16/11), 76 So.3d

1204. “[W]here the harassment is allegedly committed by a supervisor with

immediate (or successively higher) authority over the harassment victim, the

plaintiff need only satisfy the first four elements listed above.” Celestine v.

Petroleos De Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001).

The United States Supreme Court recognized two categories of hostile work

environment sexual harassment claims: (1) harassment that “culminates in a

tangible employment action[;]” and (2) harassment that takes place in the absence

of a tangible employment action. Penn. State Police v. Suders, 542 U.S. 129, 143,

124 S.Ct. 2342, 2352 (2004), quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 118 S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118

S.Ct. 2275 (1998). If a claimant establishes she suffered a tangible employment

action which resulted from the alleged sexual harassment, the employer is

vicariously liable per se. Casiano v. AT&T Corp., 213 F.3d 278 (5th Cir. 2000). If

the claimant did not suffer a tangible employment action as a result of the

harassment, the employer may assert the affirmative defense set forth by the

Supreme Court in Faragher, 524 U.S. at 777-78, 118 S.Ct. at 2278 (citation

omitted):

When no tangible employment action is taken, a defending
employer may raise an affirmative defense to liability or damages,
subject to proof by a preponderance of the evidence. The defense
comprises two necessary elements: (a) that the employer exercised
reasonable care to prevent and correct promptly any ... harassing
behavior, and (b) that the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise.

Plaintiff asserts she suffered a tangible employment action in this case, and thus

Wal-Mart should not be entitled to the affirmative defense set forth in Faragher.

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I. Tangible Employment Action.

A tangible employment action is defined as “a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Ellerth, 524 U.S. at 761, 118 S.Ct. at 2268. After a review of the

record, we cannot say the trial court erred in finding no tangible employment

action resulted from the alleged sexual harassment. Joubert did not take any

adverse employment action against Plaintiff, nor did his conduct result or

culminate in any adverse employment action. Plaintiff was in a position to return

to her same job immediately after she made her complaint and was not required to

work again with Joubert, who was terminated from his position with Wal-Mart.

The record established Plaintiff was not placed on leave, but requested leave and

repeatedly extended her leave.

Plaintiff was clearly informed on November 11, 2009, that her leave had

expired, and if she did not return the paperwork to extend her leave within fifteen

days she would be terminated in accordance with Wal-Mart’s policies. Plaintiff

argued she was given the “wrong paperwork” by Wal-Mart. However, Plaintiff

acknowledged she received a letter expressly advising her that once the one-year

leave period expired, she would have to fill out a different leave package. Plaintiff

stated she ignored the letter because she believed she should not have to complete

any additional forms or have to return to her doctor. Thus, the trial court did not

err in finding Plaintiff’s termination was not a result of the alleged harassment. It

is not enough to show merely that a tangible employment action eventually

followed the harassment. Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052 (10th

Cir. 2009). A claimant must demonstrate a causal nexus between the supervisor’s

harassment and the tangible employment action. Id.

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II. Hostile Work Environment Sexual Harassment Claim.

The absence, however, of a finding that a tangible employment action

occurred is not necessarily fatal to Plaintiff’s hostile work environment sexual

harassment claim. An employer still has to establish as an affirmative defense “(a)

that the employer exercised reasonable care to prevent and correct promptly any

harassing behavior, and (b) that the plaintiff employee unreasonably failed to take

advantage of any preventive or corrective opportunities provided by the employer

or to avoid harm otherwise.” Faragher, 524 U.S. at 787. The court in Faragher

stated “in order to be actionable under the statute, a sexually objectionable

environment must be both objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that the victim did in fact

perceive to be so.” Id. at 787, citing Harris v. Forklift Systems, Inc., 510 U.S. 17,

114 S.Ct. 367 (1993). The supreme court directed the courts to determine whether

a workplace environment is “sufficiently hostile or abusive by ‘looking at all the

circumstances,’ including the ‘frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.” Faragher, 524 U.S. at 787-88, quoting Harris, 510 U.S. at 17. The

court cautioned that Title VII is not intended to become a “general civility code”

and should not prohibit “genuine but innocuous differences in the ways men and

women routinely interact with members of the same sex and of the opposite sex.”

Faragher, 524 U.S. at 787-88, quoting Oncale v. Sundowner Offshore Serv. Inc.,

523 U.S. 75, 118 S.Ct. 998 (1998). The court noted that simple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the “terms and conditions of employment.” Id. As Wal-

Mart points out, Faragher states that in the absence of a tangible employment

action, to prevail on a hostile work environment claim, a claimant must

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demonstrate that the alleged harassment was so severe or pervasive as to change

the “terms and conditions of employment.” Wal-Mart contends Plaintiff cannot

make that demonstration, thus it is entitled to summary judgment in this case.

Plaintiff set forth the following incidents of harassment against her by

Joubert:

1. Sometime in August of 2008, Joubert handed Plaintiff some
paperwork and Joubert’s hand was “moving toward” Plaintiff’s
stomach. Plaintiff moved away from Joubert.

2. While reviewing paperwork with Plaintiff, Joubert’s finger or
pen touched Plaintiff’s knee. Plaintiff moved the chair back to avoid
any further contact until Joubert left the room.

3. On one occasion in mid-August, 2008, Joubert walked behind
Plaintiff in a group of people and stated “that’s okay, walk faster, I
love to see you walk.”

4. On September 29, 2008, Joubert told Plaintiff that she was
pretty and that he liked to see her walk.

5. On one occasion Joubert asked Plaintiff if she was bothered that
he was a married man and during that same conversation then made a
sexually explicit comment about Jolly Rancher candy to Plaintiff
inferring that pink was the color of his private parts. “He as he pulled
out of his pocket a candy . . . I asked ‘Do you have a red?’ And he
said ‘No it’s not red it’s pink.’ With a smirk on his face.”

6. On October 4, 2008, Plaintiff stated when she and Joubert were
alone in a trailer, Joubert reached around her several times, finally
grabbing her buttocks aggressively and then running is finger over
Plaintiff’s vagina.

Wal-Mart argues “a single one to two second long alleged act of inappropriate

touching, two mild comments, a ‘smirk,’ an ‘almost’ touching of the stomach and a

‘kind of’ touching of the corner of the knee with a finger or pen over a two month

period” do not rise to the level of severity or pervasiveness required to support a

claim of hostile work environment sexual harassment. The trial court weighed

Plaintiff’s allegations and agreed with Wal-Mart that it was not severe or

pervasive. We find the trial court’s weighing of the allegations and factual

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determinations are inappropriate at the summary judgment stage of the

proceedings.

Moreover, we find there is, at a minimum a genuine issue of material fact as

to whether the allegations set forth by Plaintiff are sufficient to establish the

harassment by Joubert was so severe or pervasive as to change the terms and

conditions of Plaintiff’s employment.

We find woefully inadequate Wal-Mart’s characterization of the alleged

incident on October 4, 2008, as “a single one to two second long alleged act of

inappropriate touching.” This alleged incident as described by Plaintiff raises

questions regarding the seriousness of the incident and the underlying intent as to

whether the incident met the reasonable definition of the word severe. In this

sense, genuine issues of material fact remain. Moreover, the court in Faragher

clearly set forth that isolated incidents, if extremely serious, can amount to

discriminatory changes in the “terms and conditions of employment.” A sexual

assault of an employee by her supervisor may reasonably be considered an

extremely serious incident. The court in Faragher also directed courts to

“determine whether an environment is sufficiently hostile or abusive by ‘looking at

all the circumstance,’ including the ‘frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.” Faragher, 524 U.S. at 787-88, quoting Harris, 510 U.S. at 17. The

trier of fact could reasonably view the October 4, 2008 incident as severe,

physically threatening or humiliating, and conclude it would interfere with the

employee’s work performance. Therefore, we find the trial court’s factual

determination that Plaintiff’s allegations did not rise to the level of severe or

pervasive was inappropriate.

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“A sexual harassment claim, by its very nature, is very [fact] intensive.”

White v. Golden, 43,076, p. 14 (La.App. 2 Cir. 4/30/08), 982 So.2d 234, 244. As is

our charge, we have conducted a de novo review of the record, and find it is

possible that the trier of fact could find Plaintiff’s allegations sufficient to amount

to severe or pervasive conduct. Thus, a genuine issue of material fact exists and

summary judgment is precluded.

Nevertheless, Wal-Mart argues even if Plaintiff proves the existence of a

hostile work environment claim, Wal-Mart may avoid liability by proving that it

had an effective harassment policy in place and exercised reasonable care to

prevent and correct promptly any sexually harassing behavior toward Plaintiff.

Specifically, Wal-Mart argues summary judgment was appropriate here because it

was undisputed that it had an effective policy on harassment in place, provided

extensive training on that policy, immediately responded to Plaintiff’s complaint,

and that Plaintiff failed to take advantage of the correctional opportunities provided

by Wal-Mart. We find, however, this argument is genuinely disputed by the

testimony of several witnesses in this case, including Amanda Williams, an area

manager, who testified there were two separate reports of Joubert harassing female

employees that went uninvestigated. Michelle LeBlanc, a manager, stated that

Joubert had a prior improper relationship with a female employee named Dena that

was not investigated internally. Plaintiff maintains the affirmative defense Wal-

Mart attempts to avail itself of is only applicable if the harassment policy in place

is enforced, which she maintains it was not in the instant case. While Wal-Mart’s

affirmative defense may ultimately prove to be a bar against Plaintiff’s suit in this

case, there exist genuine issues of material fact at this stage of the proceedings

which prevent summary judgment being granted in Wal-Mart’s favor.

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DECREE

For the foregoing reasons, the judgment of the lower court granting the

motion for summary judgment is reversed. The matter is remanded to the trial

court for further proceedings. Costs of this appeal are assessed to Defendant-

Appellee, Wal-Mart Stores East, LP.

REVERSED AND REMANDED.

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