Russell v. Chevron U.S.A., Inc., No. 2:2018cv04157 - Document 21 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 8 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, defendant's motion to dismiss is GRANTED, and defendant's alternative motion to strike is DENIED AS MOOT. Plaintiff has 21 days to amend her complaint. Signed by Judge Sarah S. Vance on 10/4/2018. (cg)
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Russell v. Chevron U.S.A., Inc. Doc. 21 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CATHY RUSSELL CIVIL ACTION VERSUS NO. 18 -4157 CHEVRON U.S.A., INC. SECTION “R” (4) ORD ER AN D REASON S Before the Court are defendant Chevron U.S.A., Inc.’s m otion to dism iss plaintiff’s com plaint for state law tort claims arising from her term ination of employm ent, and alternative m otion to strike. 1 The Court grants defendant’s m otion to dism iss because plaintiff fails to state her claim s in accordance with the pleading requirements set by the Federal Rules of Civil Procedure. I. BACKGROU N D This case arises out of a dispute between plaintiff Cathy Russell and defendant, her form er employer. 2 On or about J uly 28, 20 14, plaintiff began working for defendant in its offices in St. Tam m any Parish, Louisiana. 3 At 1 2 3 R. Doc. 8. R. Doc. 1-1. Id. at 1 ¶¶ 3-4. Dockets.Justia.com all tim es relevant here, plaintiff held the position of Office Assistant to Steve Conner, the Manager of Deepwater Operations. 4 On October 11, 20 16, plaintiff received an em ail from Hum an Relations Investigator Bob Baggs inform ing plaintiff that he would need to m eet with her. 5 This m eeting was evidently in connection with an investigation into plaintiff’s workplace behavior. 6 Plaintiff alleges that this investigation concluded on October 25, 20 16, with no “negative action[s]” taken against her. 7 On October 28, 20 16, Conner allegedly told plaintiff during an em ployee evaluation that she “had a problem working with her peers.”8 After this evaluation, plaintiff called the “Chevron Hotline” and stated that she had been the subject of an im proper investigation, that she was subjected to harassment, and that she did not have the opportunity to defend herself properly. 9 Plaintiff alleges that the Chevron Hotline “is supposed to allow em ployees to report, in a risk-free way, activities of fellow em ployees.”10 On November 10 , 20 16, Conner allegedly m et with plaintiff and asked her to sign a “Record of Discussion” that plaintiff asserts contained “frivolous and false 4 5 6 7 8 9 10 Id. at 2 ¶ 12. Id. at 3 ¶ 21. Id. Id. at 4 ¶ 23. Id. ¶ 24. Id. ¶¶ 25, 27. Id. ¶ 26. 2 accusations.”11 Plaintiff then m et with a m ember of Hum an Resources, who allegedly advised her to not sign the Record of Discussion. 12 The next day, November 11, 20 16, plaintiff called the Chevron Hotline to allege further harassment. 13 On November 14, 20 16, plaintiff was allegedly placed on im m ediate suspension with pay. 14 She then contacted the Chevron Hotline for the third tim e. 15 On December 16, 20 16, plaintiff was allegedly informed via letter that she was term inated. 16 Plaintiff alleges that in the letter, defendant falsely stated that her term ination was because she had “exhibited ongoing behavioral issues negatively im pacting her perform ance and the business.”17 Plaintiff further alleges that after she was fired, defendant m ade “m ultiple false statements” regarding the circum stances of her em ploym ent and term ination to third parties, including the U.S. Equal Em ploym ent Opportunity Comm ission (EEOC) and the “Louisiana Departm ent of Labor/ Louisiana Workforce Com m ission” (LDL/ LWC). 18 11 12 13 14 15 16 17 18 Id. ¶ 28. Id. at 4-5 ¶¶ 30 -31. Id. at 5 ¶ 32. Id. ¶ 33. Id. ¶ 35. Id. ¶ 36. Id. ¶ 37. Id. at 5-6 ¶ 38. 3 On December 11, 20 17, plaintiff filed a petition for dam ages against defendant in the 22 nd J udicial Court in the Parish of St. Tamm any. 19 Plaintiff’s com plaint includes state law claim s for fraud and intentional m isrepresentation, defam ation, detrim ental reliance, and intentional infliction of em otional distress. 20 On April 23, 20 18, defendant rem oved the action to federal court, asserting diversity jurisdiction under 28 U.S.C. § 1332. 21 On May 21, 20 18, defendant moved to dism iss plaintiff’s complaint in its entirety under Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, to strike any allegations prem ised on statem ents defendant allegedly m ade to the EEOC or LDL/ LWC, pursuant to Article 971 of the Louisiana Code of Civil Procedure. 22 Plaintiff opposes the m otion. 23 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially 19 20 21 22 23 Id. Id. R. Doc. 1. R. Doc. 8. R. Doc. 14. 4 plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal relevant evidence of each elem ent of the plaintiff’s claim. Lorm and, 565 F.3d at 257. The claim m ust be dism issed if there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7). 5 III. D ISCU SSION A. D e fe n d an t’s Mo tio n to D is m is s i. Fr a u d a n d In t e n t io n a l M is r e p r e s e n t a t io n Louisiana law defines fraud as “a m isrepresentation or a suppression of the truth m ade with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La. Civ. Code art. 1953. The elements of a Louisiana fraud and intentional m isrepresentation claim are: 1) a m isrepresentation of a m aterial fact; 2) made with intent to deceive; and 3) causing justifiable reliance with resultant injury. Kadlec Med. Ctr. v. Lakeview Anesthesia Assoc., 527 F.3d 412, 418 (5th Cir. 20 0 8); see also Gonzalez v. Gonzalez, 20 So.3d 557, 563 (La. App. 4 Cir. 20 0 9). Plaintiff’s state law fraud claim is subject to Federal Rule of Civil Procedure 9(b), which im poses a heightened pleading requirem ent. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 20 0 8). Under Rule 9(b), the plaintiff “m ust state with particularity the circumstances constituting fraud or m istake.” Fed. R. Civ. P. 9(b). The Fifth Circuit “interprets Rule 9(b) strictly, requiring the plaintiff to specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statem ents were fraudulent.” Flaherty & Crum rine Preferred Incom e Fund, Inc. v. TXU Corp., 565 F.3d 6 20 0 , 20 7 (5th Cir. 20 0 9). In other words, “Rule 9(b) requires ‘the who, what, when, where, and how’ to be laid out.” Benchm ark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 723 (5th Cir. 20 0 3) (quoting Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992)). Finally, “although scienter m ay be ‘averred generally,’ . . . pleading scienter requires more than a sim ple allegation that a defendant had fraudulent intent. To plead scienter adequately, a plaintiff m ust set forth specific facts that support an inference of fraud.” Tuchm an v. DSC Com m c’ns Corp., 14 F.3d 10 61, 10 68 (5th Cir. 1994) (quoting Fed. R. Civ. P. 9(b)). Plaintiff alleges that defendant “knowingly m ade false statem ents and/ or m isrepresentations” to her, the EEOC, and the LDL/ LWC. 24 These m isrepresentations allegedly included: (1) that plaintiff no longer worked for defendant when defendant’s investigations of her were conducted; (2) that plaintiff “violated com pany policies,” (3) that plaintiff “com m itted a dishonest act,” (4) that plaintiff “had a drinking problem,” (5) that plaintiff “lost custody of her son,” and (6) that plaintiff “was causing problems at work.”25 Plaintiff alleges that defendant m ade these statements “for financial gain and/ or to harm [her].”26 Plaintiff alleges that she, the EEOC, and the 24 25 26 R. Doc. 1-1 at 5-6 ¶ 38, 6 ¶ 42, 7 ¶ 45. Id. at 6 ¶¶ 39, 42. Id. at 6-7 ¶ 44. 7 LDL/ LWC all relied on these m isrepresentations, and that she sustained dam ages as a result. 27 Plaintiff’s fraud allegations fail to satisfy the Rule (9)(b) pleading standard because she fails to allege with any particularity the specifics of the fraud defendant allegedly perpetrated. Plaintiff does not explain w ho at defendant m ade the alleged fraudulent m isstatements or how exactly she was harmed by them . See Benchm ark Elecs., Inc., 343 F.3d at 723 (“Rule 9(b) requires the who, what, when, where, and how to be laid out.”) (internal quotation om itted). Plaintiff also has not sufficiently pleaded that defendant acted with the requisite scienter, because plaintiff fails to “set forth specific facts that support an inference of fraud.” See Tuchm an, 14 F.3d at 10 68. Plaintiff alleges that em ployees for defendant m ade the alleged m isrepresentations for defendant’s “financial gain” or “to harm ” plaintiff. But plaintiff does not state with any particularity what financial gain m ay have accrued to defendant or how the alleged m isstatements to the thirdparties harmed plaintiff. Plaintiff attem pts to fill these gaps in her com plaint by providing additional factual allegations in her opposition to defendant’s motion. 28 27 28 Id. at 7 ¶¶ 45, 47. R. Doc. 14 at 7. 8 Plaintiff states that defendant m ade the alleged m isstatements to the EEOC and LDL/ LWC to “deprive [her] of her right to assert a claim for discrim ination against defendant,” and to “suppress the truth and prevent her from receiving unem ploym ent benefits.”29 The Court cannot consider these additional allegations when adjudicating defendant’s m otion to dism iss. See Estes v. JP Morgan Chase Bank, N at’l Ass’n, 613 F. App’x 277, 280 (5th Cir. 20 15) (district court did not err when refusing to consider new factual allegations in plaintiff’s opposition, because “when deciding a Rule 12(b)(6) m otion, a district court generally m ust lim it itself to the contents of the pleadings”); Sartin v. EKF Diagnostics, Inc., No. 16-1816, 20 16 WL 3598297, at *4 (E.D. La. J uly 5, 20 16) (refusing to consider additional factual allegations plaintiff included in his opposition explaining the exact nature of his injury). Plaintiff does not allege in the complaint that she failed to obtain unem ploym ent benefits because of defendant’s statements to the thirdparties. Instead, plaintiff alludes only to her attem pt to obtain unem ploym ent benefits when explaining how she discovered defendant’s alleged m isrepresentations. 30 29 30 Id. See R. Doc. 1-1 at 6 ¶ 43. 9 Finally, plaintiff’s contention that she justifiably relied on defendant’s allegedly false statem ents about her is facially im plausible. See Iqbal, 556 U.S. at 678 (requiring plaintiff to state a claim for relief that is “plausible on its face”). Because plaintiff does not believe that defendant’s statem ents about her are true, it defies com prehension how she could have relied upon them to her injury. Plaintiff also bases her fraud claim on the EEOC and LDL/ LWC’s reliance on defendant’s allegedly false statem ents. But it is unclear under Louisiana law whether plaintiff can state a claim for fraud by alleging she was injured when third-parties justifiably relied on defendant’s false statem ents. See Currier v. Entergy Servs., Inc., No. 11-220 8, 20 14 WL 10 93687, at *8-9 & n.17 (E.D. La. Mar. 14, 20 14) (expressing skepticism that a fraud claim alleging third-party reliance is legally viable under Louisiana law); Schaum burg v. State Farm Mut. Auto Ins. Co., 421 F. App’x 434, 442 (5th Cir. 20 11) (“Louisiana jurisprudence indicates that the following are the elements of the tort of fraud . . . 3. reasonable or justifiable reliance by the plaintiff . . .”) (em phasis added); but see LeJeune v. Param ount Nissan, LLC, 10 2 So. 3d 20 3, 20 8 (La. App. 3 Cir. 20 12) (plaintiff stated a viable cause of action for fraud against car dealer who fraudulently m isrepresented the plaintiff’s job title and incom e to third-party credit agency, which resulted in injury to the plaintiff). Ultim ately, the Court need not decide whether 10 Louisiana law allows for a fraud cause of action based upon third-party reliance, because plaintiff fails to plead her claim for the separate reasons already mentioned. Because plaintiff has failed to plead her claim for fraud and intentional m isrepresentation with the particularly required by Rule 9(b), that claim m ust be dism issed. ii. D e fa m a t io n Under Louisiana law, “[f]our elem ents are necessary to establish a claim for defam ation: (1) a false and defam atory statem ent concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 674 (La. 20 0 6). “In other words, a plaintiff m ust prove that the defendant, with actual m alice or other fault, published a false statem ent with defam atory words which caused plaintiff dam ages.” Fitzgerald v. Tucker, 737 So. 2d 70 6, 715-16 (La. 1999) (internal quotation om itted). Falsity, m alice (or fault), and injury m ay be presum ed if “a plaintiff proves publication of words that are defam atory per se,” although this presumption is rebuttable. Kennedy , 935 So. 3d at 675. “[P]rivilege is a defense to a defam ation action.” Id. at 681. When a defendant’s statements are entitled to a qualified privilege, the defendant can 11 be held liable only if the privilege was abused. Id. at 682. A defendant abuses the privilege if he m akes the statem ent knowing it is false or “with reckless disregard as to its truth or falsity.” Id. at 684. The Louisiana Supreme Court has explained that whether a defendant has abused a qualified privilege is “generally a fact question for the jury.” Id. at 682. But when on the face of a com plaint it appears that the defendant’s alleged statem ents are entitled to a qualified privilege, courts have inquired at the m otion to dism iss stage whether the plaintiff has pleaded facts alleging the defendant acted with the requisite scienter to show an abuse of the privilege. See Hoffm an v. Bailey , No. 13-5153, 20 16 WL 40 9613, at *10 -11 (E.D. La. Feb. 3, 20 16); Duncan v. City of Ham m ond, No. 0 8-50 43, 20 0 9 WL 10 680 10 0 , at *4-5 (E.D. La. J uly 9, 20 0 9); Rogers v. Ash Grove Cem ent Co., 799 So. 2d 841, 845-46 (La. App. 2 Cir. 20 0 1); see also Schm idt v. Cal-Dive Int’l, Inc., 240 F. Supp. 3d 532, 550 -51 (W.D. La. 20 17); Brow nlow v. Lab. Corp. of Am ., 254 F.3d 10 81, 20 0 1 WL 563785, at *2 (5th Cir. 20 0 1) (affirm ing district court opinion dism issing plaintiff’s defam ation claim because the plaintiff failed to allege that defendant acted with the mental state sufficient to overcom e a qualified privilege defense). Here, plaintiff alleges that “employees of defendant . . . m ade false, m isleading, and defam atory statem ents to third parties” and other 12 em ployees about her. 31 The alleged defam atory statements are that plaintiff “acted unprofessionally,” “violated com pany policy,” “failed to perform her job duties,” “com m itted a dishonest act,” “had a drinking problem,” and “lost custody of her son.”32 Plaintiff alleges that as a result of these statements she has sustained significant dam ages, including “lost business opportunities, harm to her business and personal reputation, and mental anguish and em otional distress.”33 Plaintiff has failed to sufficiently allege her defam ation claim . First, under Louisiana law, statem ents m ade by em ployees to their coworkers in the course and scope of their em ployment cannot form the basis of a defam ation claim because such statements are not considered “publicized.” See Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Par., 327 F. App’x 472, 480 (5th Cir. 20 0 9) (“Statements m ade between em ployees in the course and scope of their em ployment are not statem ents com m unicated or publicized to third persons so as to constitute publication for a defam ation claim .”); Doe v. Grant, 839 So. 2d 40 8, 416 (La. App. 4 Cir. 20 0 3) (ruling that com m unications between hospital em ployees m ade during the course of their em ployment could not be considered “publicized” to sustain a 31 32 33 R. Doc. 1-1 at 6 ¶ 42, 7 ¶ 51. Id. at 7-8 ¶ 50 . Id. at 9 ¶ 58. 13 defam ation claim ). Plaintiff explicitly alleges that defendant’s employees m ade defam atory statem ents about her to other coworkers “in the course and scope of their em ployment.”34 Plaintiff’s defam ation claim therefore m ust be dism issed to the extent it is based upon allegedly defam atory statem ents m ade by one employee of defendant to another. Second, plaintiff’s claim that em ployees for the defendant m ade defam atory statem ents to “third parties” m ust also be dismissed because the statements are subject to a qualified privilege. Plaintiff does not specifically state which “third parties” were the recipients of the alleged defam atory statements. It is nonetheless apparent from the face of the complaint that the alleged statements were made to the EEOC during an EEOC investigation initiated by plaintiff. 35 In particular, plaintiff states that she “discovered the publication of the[] defam atory statem ents . . . during the EEOC’s investigation of her charge of discrim ination.”36 Statements to the EEOC are entitled to a qualified privilege under Louisiana law when they are m ade during the course of an investigation related to a charge of discrim ination. See Stockstill v. Shell Oil Co., 3 F.3d 868, 872 (5th Cir. 1993); see also Ratcliff v. Exxonm obil Corp., No. 0 1-2618, 34 35 36 Id. at 8 ¶ 51. See id. ¶ 52. Id. 14 20 0 2 WL 1315625, at *13 (E.D. La. J une 13, 20 0 2). Thus, to sufficiently plead her defam ation claim , plaintiff m ust allege in her com plaint that em ployees for defendant abused this privilege—that they m ade the alleged defam atory statements knowing they were false or “with reckless disregard as to [their] truth or falsity.” Kennedy , 935 So. 3d at 684. Plaintiff fails to allege that defendant is not entitled to its qualified privilege. Plaintiff alleges in conclusory fashion that defendant “knew or should have know n” that its statements to the EEOC were false and defamatory. 37 Alleging that defendant’s em ployees “should have known” their statements were false is equivalent to alleging that they acted with negligence, which is insufficient to defeat the privilege. Id. (“[M]ere negligence as to falsity (or a lack of reasonable grounds for believing the statem ent to be true) is [not] sufficient to prove abuse of the conditional privilege.”). But even if the Court were to construe plaintiff’s com plaint as asserting that defendant’s employees knew their statements about plaintiff were false, plaintiff has failed to provide any factual support that they acted with this m ental state. Such a lack of factual support would alone be reason to dism iss plaintiff’s defam ation claim . See Rogers, 799 So. 2d at 846 (affirm ing lower court’s dism issal of plaintiff’s complaint because defendants were entitled to 37 Id. at 8 ¶¶ 53-54 (em phasis added). 15 a qualified privilege and plaintiff failed to include “allegations of fact that the [defendants] intended to harm the plaintiff or that they knew the [allegedly false statements] were not true”); cf. Duncan, 20 0 9 WL 10 680 10 0 , at *4-5 (denying m otion to dism iss when defendant was entitled to a qualified privilege but plaintiff asserted facts supporting an inference that defendant acted with a reckless disregard for the truth); Hoffm an, 20 16 WL 40 9613, at *11 (sam e). Plaintiff’s defamation claim therefore m ust be dism issed. iii. D e t r im e n t a l R e lia n ce Under Louisiana law, “[a] party m ay be obligated by a prom ise when he knew or should have known that the prom ise would induce the other party to rely on it to his detrim ent and the other party was reasonable in so relying.” La. Civ. Code art. 1967. To establish a claim of detrim ental reliance a plaintiff m ust dem onstrate “(1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detrim ent because of the reliance.” Suire v. Lafay ette City -Par. Consol. Gov’t, 90 7 So. 2d 37, 59 (La. 20 0 5) (citing cases). The theory of detrimental reliance focuses on “whether a representation was m ade in such a m anner that the prom isor should have expected the prom isee to rely upon it, and whether the prom isee so relies to his detrim ent.” Id. The doctrine is “designed to prevent injustice 16 by barring a party from taking a position contrary to his prior acts, adm issions, representations, or silence.” Id. But claim s of detrimental reliance are “not favored in Louisiana [and] . . . m ust be exam ined carefully and strictly.” In re Ark-La-Tex Tim ber Co., 482 F.3d 319, 334 (5th Cir. 20 0 7). Plaintiff’s threadbare detrimental reliance allegation lacks the necessary factual support to withstand defendant’s motion to dism iss. Plaintiff alleges she “reasonably relied upon the representations that [defendant] made to [her] relating to her em ploym ent and term ination,” and that because of her reliance on those representations she “suffered a change in position.”38 But plaintiff does not specify what representations she relied upon. Nor does plaintiff explain how her reliance caused her to suffer a change in position. This vague and conclusory allegation falls far short of the pleading standard set by Iqbal and Tw om bly . See Iqbal, 556 U.S. at 678 (explaining that an allegation m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action). Plaintiff again attem pts to supplement her deficient pleading by providing new factual allegations in her opposition. Plaintiff states in her opposition that defendant “advised her that the complaints she m ade to the Chevron Hotline were encouraged and would be protected,” and that she 38 R. Doc. 1-1 at 9 ¶¶ 61, 63. 17 relied upon this representation only to be “term inated . . . for using the hotline.”39 Plaintiff does not allege in her com plaint that defendant m ade any representations surrounding the confidentiality of the com pany hotline. Instead, in the factual background section plaintiff obliquely states that “[t]he Chevron Hotline is supposed to allow em ployees to report, in a riskfree way, activities of fellow em ployees.”40 The Court cannot substitute the new factual allegations in plaintiff’s opposition for the allegations in her com plaint. See Estes, 613 F. App’x at 280 ; Sartin, 20 16 WL 3598297, at *4. Because plaintiff’s detrim ental reliance claim fails to satisfy the requisite pleading standard, that claim m ust also be dism issed. iv . In t e n t io n a l In flict io n o f Em o t io n a l D is t r e s s To state a claim for intentional infliction of em otional distress, a plaintiff m ust allege that: (1) the defendant’s conduct was extrem e and outrageous; (2) the em otional distress suffered by the plaintiff was severe; and (3) the defendant intended to inflict severe em otional distress, or knew that such distress would be certain or substantially certain to result from his conduct. W hite v. Monsanto Co., 585 So. 2d 120 5, 120 9 (La. 1991). To satisfy the first elem ent, the defendant’s conduct m ust “go beyond all possible 39 40 R. Doc. 14 at 10 . R. Doc. 1-1 at 4 ¶ 26. 18 bounds of decency, and . . . be regarded as atrocious and utterly intolerable in a civilized com m unity.” Id. Such conduct “does not extend to m ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons m ust necessarily be expected to be hardened to a certain am ount of rough language, and to occasional acts that are definitely inconsiderate and unkind.” Id. “[I]n a workplace setting,” Louisiana courts have “lim ited the cause of action to cases which involve a pattern of deliberate, repeated harassment over a period of time.” N icholas v. Allstate Ins. Co., 765 So. 2d 10 17, 10 26 (La. 20 0 0 ). Plaintiff does not specify which statem ents or actions underlie her claim for intentional inflection of em otional distress. 41 Construing plaintiff’s com plaint broadly, the Court reads it as alleging that the following statements or actions have caused her em otional distress: (1) defendant’s com m encement of a workplace investigation into plaintiff’s behavior; 42 (2) Conner’s allegedly false statement during plaintiff’s employee evaluation that she “had a problem working with her peers; 43 (3) defendant’s allegedly false statement in plaintiff’s term ination letter that she “has exhibited an ongoing pattern of behavioral issues negatively im pacting her perform ance 41 42 43 Id. at 10 ¶¶ 65-69. Id. at 3 ¶ 21. Id. at 4 ¶ 24. 19 and the business;”44 and (4) the allegedly fraudulent and defam atory statements that em ployees for defendant m ade to their coworkers, the EEOC, and the LDL/ LWC after plaintiff was term inated. 45 Plaintiff’s allegations do not constitute the type of “extrem e and outrageous” behavior necessary to sustain a claim for intentional infliction of em otional distress. See W hite, 585 So. 2d at 120 9. Courts applying Louisiana law have dism issed allegations asserting sim ilar types of workplace conduct. See Perez v. City of N ew Orleans, 173 F. Supp. 3d 337, 354 (E.D. La. 20 16) (form er police officer’s allegations that police department disciplined him , denied him a prom otion, dem eaned him to the public, and “unnecessarily criticiz[ed] him ” did not state claim for intentional infliction of em otional distress); Stew art v. Parish of Jefferson, 668 So. 2d 1292, 1294 (La. App. 3 Cir. 1996) (affirm ing trial judge’s dism issal of plaintiff’s claim that his em ployer raised his voice while questioning plaintiff, increased plaintiff’s workload, and pressured plaintiff to take a dem otion that ultim ately led to his term ination); see also Iturralde v. Shaw 44 Id. at 5 ¶ 37. Id. at 6 ¶¶ 39, 42 (as addressed previously, these statem ents included that plaintiff violated com pany policy, com m itted a dishonest act, was causing problems at work, had a drinking problem, had lost custody of her son, and that she no longer worked for defendant when the com pany investigation was conducted). 20 45 Grp., Inc., 512 F. App’x 430 , 435 (5th Cir. 20 13) (noting that “a term ination in itself is not extrem e and outrageous” behavior). Plaintiff’s claim for intentional infliction of em otional distress therefore m ust be dism issed. B. D e fe n d an t’s Alte rn ative Mo tio n to Strike Defendant alternatively m oves to strike plaintiff’s claim s that are based on statements allegedly m ade to the EEOC and the LDL/ LWC, because those statements are protected by Louisiana’s anti-SLAPP statute. The anti-SLAPP statute protects a defendant from civil liability for statem ents m ade “in connection with a public issue” in a lim ited set of circumstances, “unless the Court determ ines that the plaintiff has established a probability of success” on his claim for dam ages. La. Code Civ. Pro. Art. 971(A). Because the Court finds that plaintiff has failed to satisfy even the m ore lenient pleading standard m andated by the Federal Rules of Civil Procedure, the Court denies defendant’s alternative m otion to strike as m oot. C. Plain tiff’s Mo tio n Se e kin g Le ave to Am e n d Co m p lain t Plaintiff has requested leave to am end her complaint in the event the Court dism isses any of her claims. 46 The Court will “freely give leave [to am end] when justice so requires.” Fed. R. Civ. P. 15(a). The Suprem e Court 46 See R. Doc. 14 at 7, 10 , 11. 21 has held that “[i]f the underlying facts or circum stances relied upon by a plaintiff m ay be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the m erits.” Fom an v. Davis, 371 U.S. 178, 182 (1962). Leave to am end, however, “is by no means autom atic.” Halbert v. City of Sherm an, 33 F.3d 526, 529 (5th Cir. 1994). The Court considers m ultiple factors, including “undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the am endm ent, [and] futility of am endm ent.” Fom an, 371 U.S. at 182. After considering these factors, the Court grants plaintiff leave to am end her com plaint. Plaintiff has not shown bad faith or dilatory m otive in this litigation, and the Court has not granted her leave to am end her com plaint previously. Nor does the Court find that am endment would necessarily be futile. It is evident from plaintiff’s opposition that she is able 22 to provide m ore factual support for her claim s than what she included in her first com plaint. IV. CON CLU SION For the foregoing reasons, defendant’s m otion to dism iss is GRANTED, and defendant’s alternative m otion to strike is DENIED AS MOOT. Plaintiff has 21 days to amend her com plaint. New Orleans, Louisiana, this _ _4th _ _ _ day of October, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 23
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