Summary
In Miller, the defendants argued that Miller could not state a claim against them under the LCHRA because the statute did not provide a cause of action against employees in suits alleging retaliation.
Summary of this case from Lowry v. Dresser, Inc.Opinion
Civil Action No. 02-0348, Section: "I" (1)
September 3, 2002
ORDER AND REASONS
Before the undersigned are the motion of American General Financial Services, Inc. ("American General") to compel arbitration (Rec. doc. 6) and the motion of the individual defendants, Marlene King ("King"), Debra Fleck ("Fleck"), and Daniel Perkins ("Perkins"), to dismiss for lack of personal jurisdiction, or in the alternative, for failure to state a claim. Rec. doc. 5. For the reasons set forth below, American General's motion to compel arbitration is denied. The motion of King, Fleck and Perkins to dismiss for lack of personal jurisdiction and to dismiss the claim of the plaintiff, Gwendolyn "Sue" Miller ("Miller") pursuant to La.Rev.Stat. Ann. § 51:2231 of the Louisiana Commission on Human Rights Act ("the LCHRA") for failure to state a claim is granted.
The Court notes that defendant's correct name is "American General Finance Management Corporation." See Rec. doc. 1, Notice of Removal at ¶ 1.
When Miller's petition was removed to federal court, it was assigned to United States District Judge Vance. Rec. doc. 1. On April 17, 2002, there was oral argument before Judge Vance on the motions of American General and the individual defendants. After oral argument, Judge Vance issued an order for further briefing. Rec. doc. 22. Prior to issuance of a ruling on the motions, the action was reassigned to United States District Judge Africk. Rec. doc. 23. Following a status conference before him, the parties consented to the trial of the case before a Magistrate Judge. Rec. doc. 36. The undersigned has reviewed the memoranda submitted by the plaintiff and defendants as well as the transcript of the oral argument before Judge Vance.
MILLER'S ALLEGATIONS
Miller alleges that she began working at American General in 1975 and that she performed her job well until her termination. She alleges that prior to calendar year 2000, she maintained an impeccable attendance record, received regular merit pay increases and promotions and was employed as a senior customer service representative. ¶ VI at Rec. doc. 1.From May 19, 2000 until July 19, 2000, Miller alleges she was on a leave of absence for a hysterectomy under American General's short term disability policy and the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601. In September, 2000, she was allegedly diagnosed with fibromyalgia. Miller alleges that her physician advised her to take another medical leave on short term disability status that began on September 25, 2000 and ended in early October, 2000. At that time her physician found her symptoms in remission and declared her able to return to work. Id. at ¶ VIII. Miller describes this as the "first significant absence" for fibromyalgia. Id. at ¶ VII. Miller alleges that most of her 2000 leave was protected by law and that American General maintained a short term disability policy for disabilities of limited duration. Id. at ¶ IX.
Miller alleges King wrote her on September 25, 2000 and threatened that as a result of her illness, Miller's reinstatement could not be guaranteed. Miller alleges the letter described a violation of Louisiana law. Miller alleges she contacted King and protested the allegedly threatened illegal action. Miller alleges that because of her "lawful protest and protected activity," King wrote a second letter and threatened her with possible discharge on the basis of King's improper perception that Miller suffered from a disability. Id. at ¶ XII. Miller alleges that a further threatening letter was sent by Fleck. Miller alleges that, although Fleck admitted that Miller's doctor reported that Miller no longer needed intermittent leave for her fibromyalgia, Fleck nonetheless falsely stated that Miller continued to have problems with fibromyalgia. Miller alleges that she was not absent for fibromyalgia for a single day following her return to work in mid-October and thereafter was absent no more than other employees who were not falsely labeled as disabled. Id. at ¶ XIII.
As discussed in more detail in the consideration of the motion of King and the other individual defendants, King's September 25, 2000 letter does not describe a violation of Louisiana and it contradicts Miller's allegations.
Miller alleges, on information and belief, that King and Fleck recommended to Perkins that Miller be terminated. Miller contends that Perkins issued a letter terminating her without conducting any investigation, contacting Miller, or obtaining any expert medical advice. Miller contends that Perkins relied upon the false representations of King and Fleck and thus joined the conspiracy to terminate her, and that the three individual defendants regarded her as disabled despite having evidence to the contrary. Id. at ¶ XIV. Perkins, who was the director of human resources, sent a letter dated January 12, 2001 to Miller that said: "After carefully reviewing the information presented, the Termination Review Committee approved the termination of your employment as a discharge effective January 11, 2001." Attachment to Rec. doc. 25. Miller alleges her opposition to King's illegal practices constituted protected activity under Louisiana Revised Statute 51:2256(1) and the conspiracy thereafter entered into on the part of King, Fleck and Perkins was caused at least in part by Miller's opposition and constituted a breach of Louisiana's Anti-Retaliation Revised Statute 51:2256(1). This conspiracy allegedly subjects them to personal liability under Louisiana Revised Statute 51:2256. Rec. doc. 1 at ¶ XV.
THE MOTION TO COMPEL ARBITRATION
American General alleges that on or about April 6, 1999, it gave its employees initial notice of an Employee Dispute Resolution program ("EDR program"). The EDR program provides for mandatory arbitration as "the sole means of resolving employment-related disputes." The program covers claims of disability discrimination, wrongful discharge, retaliation, and any cause or action relating to the termination of employment. American General alleges that it informed its employees of the new dispute resolution policy through the company's "Home Officer Bulletin," a publication distributed to all American General employees regarding information of general interest. American General also held informational meetings regarding the new EDR. A sign-in form for a May 27, 1999 information session contains plaintiffs signature, but Miller maintains that she did not attend the session. The company alleges that it informed all employees that compliance with the EDR program was a term and condition of continued employment with American General. The EDR program went into effect on June 1, 1999.
American General argues that plaintiff agreed to be bound by the company's EDR program and therefore the Court should compel plaintiff to arbitrate her claims against the company and stay further action in this Court. The Federal Arbitration Act states that:
A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.9 U.S.C. § 2. The Supreme Court recently ruled that section 2 of the FAA covers employment contracts, except for those contracts explicitly exempted from coverage in section 1. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119, 121 S.Ct. 1302, 1311 (2001); see also Prescott v. North Lake Christian School, 2001 WL 740506, *1 (E.D.La. 2001) (following holding in Circuit City); Rogers v. Brown, 986 F. Supp. 354, 357 (M.D.La. 1997) (FAA applies to employment contract). There is no dispute as to whether the FAA applies to this case or whether plaintiffs work qualifies under the section 1 exemptions.
Under Section 3 of the FAA, courts are authorized to stay proceedings for any issue subject to arbitration upon the application of one of the parties. The act provides:
If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration . . . the court . . . shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement . . . .9 U.S.C. § 3. An application for arbitration by either party under section 3 "requests the district court to refrain from further action in a suit pending arbitration, and requires the court to first determine whether there is a written agreement to arbitrate between the parties, and then whether any of the issues raised are within the reach of the agreement." Texaco Exploration and Production Company v. AmClyde Engineered Products Company, Inc., 243 F.3d 906, 909 (5th Cir. 2001) ( citing Midwest Mechanical Contractors, Inc. v. Commonwealth Construction, 801 F.2d 748, 750 (5th Cir. 1986)). Accordingly, the court must engage in a two-step analysis before issuing an order to compel arbitration. First, the court must determine whether the parties agreed to arbitrate. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 626, 105 S.Ct. 3346, 3353 (1985); see also Midwest, 801 F.2d at 751. This step includes two determinations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement. Webb v. Investcorp, Inc. 89 F.3d 252, 258 (5th Cir. 1996). "If the issues in a case are within the reach of that [arbitration] agreement, the district court has no discretion under section 3 to deny the stay." See id. (citation omitted). The Supreme Court has held that when deciding whether the parties agreed to arbitrate a certain matter, courts generally should apply ordinary state-law principles that govern the formation of contracts. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924 (1995); see also Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002). Once it has determined that there is an agreement to arbitrate, the court must be mindful of the "federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself must be resolved in favor of arbitration." Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1253-54 (1989); see also Bank One, N.A. v. Shumake, 281 F.3d 507, 513 (5th Cir. 2002); Grigson v. Creative Artists Agency, 210 F.3d 524, 526 (5th Cir. 2001). The second step of the test requires the court to determine "whether legal constraints external to the parties' agreement foreclosed the arbitration of those claims." Webb, 89 F.3d at 258.
The undersigned will look to Louisiana law to determine whether there is an enforceable arbitration agreement. See Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S.Ct. 1652, 1656 (1996) (state law may be applied to govern issues concerning the validity and enforceability of contracts generally) ( citing Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 2527 n. 9 (1987)); see also Defreitas v. American General Finance, Inc., 2001 WL 1313203, *1 (E.D.La. 2001). Under Louisiana law, in order for a valid contract to exist, the following four elements must be present: (1) the parties must possess the capacity to contract; (2) the parties' mutual consent must be freely given; (3) there must be a certain object for the contract; and (4) the contract must have a lawful purpose. See La. Civ. Code. Ann. arts. 1918, 1227, 1966, 1977; see also Provenza v. Central Southwest Services, Inc., 775 So.2d 84, 89 (La.Ct.App. 2d Cir. 2000). Article 1927 of the Louisiana Civil Code provides that "[u]nless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent." La. Civ. Code Ann. art. 1927; see also Sullivan v. Sullivan, 671 So.2d 315, 318 (La. 1996).
Here, plaintiff was an at-will employee, so there is no employment contract that evidences an agreement to arbitrate. American General, however, contends that it formed a valid agreement to arbitrate with plaintiff when she consented to the terms of the EDR program as contained in the information package American General distributed to its employees. American General argues that the EDR pamphlet and brochure containing the company's new arbitration policy and procedures altered the terms of plaintiffs employment. Defendant further contends that plaintiffs continued employment with it after the policy was enacted manifests her consent to the terms of the EDR. The FAA requires arbitration agreements to be in writing ( see 9 U.S.C. § 2); therefore, under Louisiana law, the acceptance of such an agreement must also be in writing. See Walker v. Air Liquide America Corporation, 113 F. Supp.2d 983, 985 (M.D.La. 2000); see also La. Civ. Code Ann. art. 1927 cmnt. c. ("This article reflects the view of the Louisiana jurisprudence that when special formalities are prescribed for a contract the same formalities are required for an offer or acceptance intended to form that contract"). Accordingly, the undersigned finds that plaintiffs continued employment with American General after it implemented the EDR program cannot constitute plaintiffs consent to be bound by the terms of the EDR program. See id.
American General's reliance on Jones v. Fujitsu Network Communications, Inc., 81 F. Supp.2d 688, 692 (N.D.Tex. 1999), for the proposition that continued employment is adequate for consent to be bound by the terms of an employment manual is not persuasive because the decision was based on the district court's analysis of Texas contract law.
As the Fifth Circuit pointed out, "Louisiana courts have not been inclined to find contracts in employment manuals." Wallace v. Shreve Memorial Library, 79 F.3d 427, 430 (5th Cir. 1996). One Louisiana appellate court has reasoned that employment manuals are merely unilateral expressions of the employer's policy and procedures that are void of a bargained for agreement on terms or conditions. See Mix v. University of New Orleans, 609 So.2d 958, 961 (La.Ct.App. 4th Cir. 1992), writ denied, 612 So.2d 83 (1993). The courts have not established a per se rule on whether an employee manual or policy pamphlet creates an enforceable agreement which can modify the terms of an at-will employment relationship, preferring instead to examine the manuals on a case-by-case basis. Wallace, 79 F.3d at 431; Adams v. Autozoners, Inc., 1999 WL 744039, *6 (E.D.La. 1999). Nevertheless, a number of state and federal cases applying Louisiana law have concluded that employment manuals, policies, and grievance procedures did not alter the terms of employment relationships. See id. at 430 (library's employment manual did not give employee property interest in job entitling her to due process before termination); Gilbert v. Tulane Univ., 909 F.2d 124, 126-27 (5th Cir. 1990) (Tulane University staff handbook was not an employment contract giving plaintiff right to invoke grievance procedures); Lee v. Entergy Operations, Inc., 1994 WL 516589, *3 (E.D.La. 1994) (employment manuals and policies did not constitute employment contract); see also Schwarz v. Administrators of Tulane Educational Fund, 699 So.2d 895, 898-99 (La.Ct.App. 4th Cir. 1997) (Tulane faculty handbook not a contract in absence of evidence that parties mutually agreed to be bound by the terms and conditions of handbook).
The employment policy in this case is contained in a company bulletin (Def.'s Ex. A), a pamphlet (Def.'s Ex. D), and a brochure (Def.'s Ex. B). As in Mix and Wallace, the undersigned finds that American General has not offered any evidence that Miller bargained for the provisions in the EDR program materials as a condition of her continued employment. The EDR program materials thus do not constitute a contract under Louisiana law but are merely unilateral statements by American General of its policy and procedures.
A March, 1999 letter from American General's president and chief executive officer indicates that representatives from field operations, human resources, and the legal and marketing departments designed and developed the policy. See Def.'s Ex. B, Gessinger Letter.
The sign-in sheet Miller signed does not affect the undersigned's conclusion that there is no agreement to arbitrate. American General's reliance on Jones v. Tenet Health Network, Inc., 1997 WL 180384 (E.D.La. 1997), is unpersuasive. In Tenet Health, the plaintiff signed an employee handbook acknowledgment form that itself contained an arbitration agreement. The signed acknowledgment form stated:
I understand [employer's name] makes available arbitration for the resolution of grievances. I also understand that as a condition of employment, I agree to submit any complaints to the published process . . . .See Tenet Health, 1997 WL 180384 at 1. The language in the acknowledgment form permitted the district court to look beyond the employment manual to find a mutually agreed upon contract to arbitrate. The district court found that in the absence of a claim that plaintiff did not freely consent to the terms in the acknowledgment form, the signed form was an enforceable agreement to arbitrate. See id. Here, the acknowledgment form Miller signed contains no such agreement to arbitrate. The sign-in sheet provides:
By signing below, I acknowledge that I have attended the information session and received a copy of the AGF Employee Dispute Resolution pamphlet.See Philips Affidavit Ex. 1, Sign-In Sheet. Regardless of whether plaintiff actually received the EDR materials or attended the information session, both of which she denies, the sign-in sheet is void of language indicating that Miller consented to and agreed to be bound by the terms of the program. See Walker, 113 F. Supp.2d at 986 (finding no agreement to arbitrate when acknowledgment form merely provided that plaintiff received and read the employee handbook containing the arbitration program).
In the absence of any language in the sign-in sheet that Miller consented to submit her employment dispute to American General's arbitration program, the undersigned finds that there is no agreement to arbitrate between plaintiff and her employer. Accordingly, American General's motion to compel arbitration is denied.
THE INDIVIDUAL DEFENDANTS' MOTION
King, Fleck and Perkins filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and (6). Rec. doc. 5. These defendants urge that: (1) this Court does not have personal jurisdiction over them; and (2) the complaint fails to state a claim against them because the retaliation statute relied upon by Miller did not support a cause of action against individual employees who were not Miller's employer. Rec. doc. 5.
King, Fleck and Perkins submitted affidavits in support of their motion to dismiss. King shows that since 1997 she has lived in Indiana and since July, 2000 she has been employed by American General as a disability management administrator. King has never been to Louisiana. Rec. doc. 5 at Exhibit A. Fleck has lived in Indiana since 1991 and began her employment with American General in May 2000 as a field relations consultant. She traveled to Louisiana on business once in March 2001.Id. at Exhibit B. Perkins has lived in Indiana and worked for American General since 1993. Perkins is the director of corporate human resources. He traveled to Louisiana once in March 1998 for a personal vacation in New Orleans. Id. at Exhibit C. None of them own property of any kind in Louisiana. Id. at Exhibits A-C. In this case, King's only alleged contacts with Louisiana were the transmittal of two letters to Miller and answering Miller's telephone call in response to the first letter. Fleck's only alleged contact with Louisiana was the transmittal of one letter to Miller. Perkins' only alleged contact with Louisiana was the transmittal of the letter notifying Miller of her termination. Attachment to Rec. doc. 1.
As to failure to state a claim, Miller argues that there is individual liability under La.R.S. 51:2256. Rec. doc. 8.
As to the jurisdiction issue, Miller responds that: (1) there is no fiduciary shield that protects corporate employees from local jurisdictions and actions where they are otherwise amenable to suit; (2) the individual defendants committed torts that resulted in the illegal termination of a Louisiana citizen working in Louisiana; and (3) the individual defendants are alleged to have joined in a conspiracy with American General in violation of Louisiana's anti-retaliation statute (La.Rev.Stat. Ann. § 51:2256), and that for purposes of jurisdiction the acts of the resident conspirator, American General, were attributable to the acts of the non-resident individual defendants. Rec. doc. 8.
After oral argument the parties were ordered to brief the issue of whether Miller stated a claim for conspiracy to retaliate under the LCHRA and, in particular, the issue of whether Miller alleged that she opposed a practice declared unlawful under the LCHRA. Rec. doc. 22. Miller submitted a supplemental memorandum with a copy of Perkins' letter to Miller terminating her. Rec. docs. 25 and 28. The individual defendants submitted a supplemental memorandum with a copy of the September 25, 2000 letter from King to Miller. Attachment to Rec. doc. 26.
A. Standard on a Motion to Dismiss
A motion to dismiss under rule 12(b)(6) "is viewed with disfavor and is rarely granted." Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). The district court may not dismiss a complaint under rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Blackburn, 42 F.3d 925, 931 (5th Cir. 1995). This strict standard of review under rule 12(b)(6) has been summarized as follows: "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). Dismissal is warranted if it appears certain that the plaintiff cannot prove any set of facts in support of her claim that would entitle her to relief. Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
B. Liability of Employers and Employees Under LCHRA
The motion of the individual defendants raises the issue of whether there is employee liability under LCHRA or whether it is limited to employers. The individual defendants argue that Miller cannot state a claim against them under the LCHRA because the statute does not provide a cause of action against individual employees in suits alleging retaliation.
Section 51:2256 of the LCHRA prohibits conspiracies to retaliate against a person because she has opposed a practice declared unlawful by the act. Section 51:2256 provides:
It shall be an unlawful practice for a person or for two or more persons to conspire: (1) To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this Chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this Chapter.
La.Rev.Stat. Ann. § 51:2256(1). The plain language of section 52:2256 prohibits a person or two or more persons from conspiring to retaliate against a person because she opposed an unlawful practice. See La.Rev.Stat. Ann. § 51:2256. On the other hand, the anti-discrimination provisions under Title 23 all prohibit discrimination by an "employer." See La.Rev.Stat. Ann. §§ 23:312 (age), 323 (disability), 332 (race, color, religion, sex, and national origin), 342 (pregnancy, childbirth, and related medical conditions), 352 (sickle cell trait). "Employer" is defined under both the LCHRA and the employment discrimination statute as:
a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.
La.Rev.Stat. Ann. § 23:302(2). Louisiana courts and courts in this circuit have looked to this definition of"employer" and its similar federal counterpart in Title VII ( see 42 U.S.C. § 2000e-(b)), and have interpreted the Louisiana anti-discrimination statutes and Title VII to preclude liability for individual defendants who are not employers. See, e.g., Indest v. Freemen Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999) (Title VII); Rhyce v. Martin, 173 F. Supp.2d 521, 533-34 (E.D.La. 2001); Spears v. Roundtree Oldsmobile-Cadillac Co., 653 So.2d 182, 184 (La.Ct.App. 2d Cir. 1995). Section 51:2256's federal anti-retaliation counterpart, Title VII, does not use its broad language, but rather, it prohibits retaliation by an employer. See 42 U.S.C. § 20003-3(a). The Louisiana legislature was aware of Title VII's language when it removed the employment discrimination provisions from the LCHRA and consolidated them under Chapter 3-A of Title 23, and it chose not to include a limited anti-retaliation provision under the employment discrimination chapter paralleling the Title VII provision. See 1997 La. Sess. Law Serv. Act 1409 (West); see also King v. Phelps Dunbar, L.L.P., 743 So.2d 181, 185 (La. 1999). Indeed, the anti-retaliation provision remains in the LCHRA only. Further, the definition section of the LCHRA still defines an "unlawful practice" as "a discriminatory practice in connection with employment." La.Rev.Stat. Ann. §§ 51:2232(13), 2256(1). Therefore, the Court finds that the anti-retaliation statute applies to the employment discrimination context. Moreover, the Court finds that because section 51:2256 refers to a "person" or "persons," not "employers," the limitation on liability to employers under the Louisiana and federal anti-discrimination statutes does not apply to the anti-retaliation provision of the LCHRA. Thus, a claim can be made against persons who are not the plaintiffs employer.
As a result of the 1997 amendments to the LCHRA, the act no longer provides its own definition of "employer." Rather, the act refers to Title 23 to define the term.
Defendants cite a number of cases from this circuit and the Louisiana courts that hold that the anti-discrimination provisions of the Louisiana employment discrimination law and the LCHRA do not create causes of action for employment discrimination against individual defendants, such as supervisors or co-workers. None of the cases defendants cite address the language of section 51:2256. For example, defendants cite Devillier v. Fidelity Deposit Co. of Maryland, 709 So.2d 277 (La.Ct.App. 3d Cir. 1998), for the proposition that section 51:2256 does not create a cause of action against individual defendants and that it is the definitive interpretation of the LCHRA after the 1997 amendments. The Court finds that Devillier is not controlling on this issue. Although the Devillier court referred to the plaintiffs' retaliation claim in its summary of the facts, it never addressed the language of the anti-retaliation provision. Rather, the court considered the definition of "employer" under the pre-1997 LCHRA and how the definition has been interpreted under Title VII. See Devillier, 709 So.2d at 279-81. Further, because the Devillier plaintiffs' filed their claims before the effective date of the 1997 amendments, the Court finds that the defendants are incorrect to imply that Devillier represents the Louisiana court's interpretation of the state of the post-1997 amendment LCHRA and that the ruling is somehow binding precedent on this Court.
Indeed, the only courts in this district to address the application of section 51:2256 to individual defendants in the employment context have held that the provision creates a cause of action against individual defendants. See Greenwell v. Raytheon Aerospace, Inc., 1996 WL 194929, *2 (E.D.La. 1996) (individual employee can be held liable under section 51:2256 for retaliation); Lumpkin v. Griffin, 1996 WL 304313, *3 (E.D.La. 1996) (same); Guerra v. National Tea Co., 1996 WL 435459, *2 (E.D.La. 1996) (same). The Court is unaware of any court, state or federal, that has construed section 51:2256 in light of the 1997 amendments.
C. Personal Jurisdiction Over the Individual Defendants/Failure to Allege Opposition to a Practice Declared Unlawful Under the LCHRA
The remaining issues raised by the motion of King, Fleck and Perkins to dismiss require careful examination of Miller's allegations. When this matter was argued before Judge Vance, the only statement of Miller's allegations was her petition. Since the oral argument, the individual defendants submitted a copy of King's letter of September 25, 2000 and Miller submitted a copy of Perkins' letter of January 12, 2001. Both of these letters are referred to by Miller in her petition and are central to her claim. In Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000), the Fifth Circuit said:
In considering a motion to dismiss for failure to state a claim, a district court must limit itself to the contents of the pleadings, including attachments thereto. Fed.R.Civ.P. 12(b)(6). Here, the court included, in its review, documents attached not to the pleadings, but to the motion to dismiss. Plaintiffs did not object in the district court to this inclusion and do not question it on appeal. We note approvingly, however, that various other circuits have specifically allowed that "[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to her claim." In so attaching, the defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the elementary determination of whether a claim has been stated.Id. at 498-99 (citations omitted). The Court finds that the content of the two letters are central to plaintiffs claims and must be considered in determining whether plaintiff has stated a claim.
1. Miller's Allegations and King's September 25, 2000 Letter
Miller filed this action in state court alleging that it was brought "exclusively under Louisiana law" and more particularly under the Louisiana Employment Discrimination Law and LCHRA. The former provides that:
¶ I of Rec. doc. 1. In her motion to remand, Miller emphasized that she sought to proceed exclusively on her Louisiana remedies. Miller contended that her petition did not meet the $75,000 jurisdictional requirement for diversity jurisdiction. Rec. doc. 4. Judge Vance found that it was facially apparent from Miller's petition that the amount in controversy exceeded $75,000 and Miller's motion to remand was denied. Rec. doc. 19.
A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(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.
La.Rev.Stat. Ann. § 23:332. By its terms the statute renders only the employer liable for discrimination in employment and Miller does not contend that King, Fleck or Perkins are liable under it. The LCHRA provides in part that:
It shall be an unlawful practice for a person or for two or more persons to conspire:
(1) To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this Chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this Chapter.
Louisiana Commission on Human Rights, Chapter 38 of Title 51 of the Louisiana Revised Statutes.
La.Rev.Stat. Ann. § 51:2256. Miller alleges that King, Fleck, Perkins and American General are liable to her under this statute.
As described above, Miller alleges that she protested King's threatened illegal action as related to her in the letter of September 25, 2000. Paragraph X of Miller's petition is as follows:
Despite the declaration of Sue Miller's physician that she was free of symptoms and fully able to return to work, Defendant Marlene King (Defendant King), acting entirely without expert advice of any kind, formed the erroneous and illegal opinion that Sue Miller was somehow "disabled," based only upon her limited use of short term disability benefits. King wrote to Sue Miller on or about September 25, 2000 threatening that as a result of her illness, Sue Miller's reinstatement "cannot be guaranteed."
Rec. doc. 1. The pertinent portion of King's letter, however, is as follows:
At this time you have been placed on a leave of absence and temporary Short-Term Disability (STD) Benefits have begun. These STD benefits will be approved beginning September 13, 2000, pending receipt of acceptable medical documentation. The Benefits Department will then determine the duration of STD benefits. The physician's recommendations and nationally accepted disability duration guidelines will be used in this determination.
We must receive Medical Certification Forms from your health care provider no later than October 6, 2000. Failure to provide this documentation within this period of time will result in suspension of your STD benefits. Upon your return to work, you must present your supervisor with a signed release from your physician. Your supervisor will then fax the release to the Benefits Department . . . for review.
If your STD benefits end before you return to work, you will be paid any remaining earned vacation hours, per policy.
This leave of absence is not protected under the Family and Medical Leave Act of 1993 (FMLA) since you exhausted your 12 weeks of benefits in July 2000, during the May 12, 2000 to July 19, 2000 leave of absence. Since you are not covered by the FMLA, the company will attempt to accommodate your return to a comparable position. However, reinstatement cannot be guaranteed, as a vacancy must exist in a position for which you are qualified.
Attachment to Rec. doc. 26 (emphasis in original). This letter clearly is a response to Miller's request to be placed on short term disability benefits. It is a clear and straight forward explanation of the requirements to receive benefits and of Miller's re-employment prospects once she was certified by her doctor as being able to return to work. The Court does not view the letter as a "threat" that Miller would lose her job. Because the letter referred to by Miller in her petition contradicts her allegations, the letter, rather than her allegations, must be considered in evaluating the motion of the individual defendants to dismiss.
Miller does not contest the individual defendants' assertion that the Court does not have general personal jurisdiction over them. Miller alleges that there is personal jurisdiction over the individual defendants because: (1) they acted in violation of the LCHRA with a direct and injurious consequence within the forum; and (2) they joined in a conspiracy with American General who is present in the forum and the conspiracy was in violation of the LCHRA. In either case, Miller's assertion that jurisdiction is present over King, Fleck and Perkins rests on her contention that she has stated a claim against them under the LCHRA. The consideration of personal jurisdiction and the merits of the claim are intertwined.
When, as here, non-resident defendants move to dismiss for lack of personal jurisdiction, the plaintiff shoulders the burden of establishing jurisdiction over those defendants. See Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). Because the undersigned will rule on the issue without a full evidentiary hearing, Miller need only make a prima facie showing of jurisdiction. See Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994) (citing Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)). In determining whether plaintiff has made a prima facie showing ofjurisdiction, the Court must accept as true all uncontroverted allegations in plaintiffs complaint and resolve any factual disputes in her favor. See Latshaw v. Johnson, 167 F.3d 208, 211 (5th Cir. 1999); Wilson, 20 F.3d at 648. Miller's allegations have been controverted in part by the September 25, 2000 letter from King to Miller that is central to Miller's claim.
Miller contends that King's September 25, 2000 letter reasonably prompted her to suspect that she was being fired for a perceived disability in direct contravention of the LCHRA. The letter allegedly caused her to protest the statements made in it. Miller urges that she had a reasonable and good faith belief that the letter described a violation of the law. Rec. doc. 28. The Fifth Circuit has held that a plaintiff can establish a prima facie case of retaliation under the opposition clause of section 704(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), if she shows that she had a reasonable belief that the employer was engaged in unlawful employment practices. Payne v. McLemore's Wholesale Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981). The issue is whether, in the light most favorable to Miller and with every doubt resolved in her favor, King's September 25, 2000 letter describes a practice that caused Miller to have a reasonable belief that American General and King were engaged in an unlawful employment practice.
The first three paragraphs of King's letter show that: (1) Miller was placed on a leave of absence and that short term disability benefits had begun; (2) Miller needed to provide documentation from her physician; and (3) if the short term disability benefits were exhausted before Miller returned to work, she would be paid any remaining vacation benefits. King's letter of September 25, 2000 was prompted by Miller's application for a leave of absence and for short term disability benefits offered by American General. King did not initiate the letter to Miller.
Miller's allegations about King's letter of September 25, 2000 must rest on the fourth paragraph of that letter. There is no mention of disability in paragraph four of the letter. The first sentence, part of which King emphasized, is a statement of law which the defendants contend is a correct statement of the law and which is not disputed by Miller. Miller acknowledges in paragraph IX of the petition that not all of her 2000 absences were protected by FMLA. The second sentence describes the company's intention to attempt to accommodate her return to employment. The last sentence qualifies this by stating that reinstatement could not be guaranteed. The use of the word "accommodate" does not present an issue. The only possible inference that can be drawn is that American General would try to bring Miller back into a comparable position if one was available. It is not possible to infer that American General used the word "accommodate" in connection with the use of the word "disability" in the first three paragraphs. There is nothing in the letter from which a reasonable person could conclude that King determined that Miller suffered from a disability.
Thus, King's letter of September 25, 2000 does not present any basis for Miller to possess a reasonable belief that American General and King were engaged in an unlawful employment practice. To the contrary, King's September 25, 2000 letter shows a routine response to Miller's request for short term disability benefits. If Miller had not requested the benefits, King's letter would never have been written; and if Miller had not exhausted her FMLA leave earlier in the year, the letter would have not have stated that reinstatement could not be guaranteed.
One of the enclosures referred to by the September 25, 2000 letter is a leave of absence request by Miller.
It follows from the only permissible reading of King's September 25, 2000 letter that plaintiffs allegations regarding the letter cannot be accepted as written. The allegation that upon receipt of the September 25, 2000 letter, she made a call to King to protest the statement that her reinstatement could not be guaranteed must be accepted as true. It also must be accepted as true that Miller described her dedication to American General, explained that her condition was temporary and that she would be able to return to the full duties of her job. What cannot be accepted is Miller's allegation that King's letter of September 25, 2000 threatened illegal action by American General. Thus, Miller's allegation that her call to King after receipt of the September 25, 2000 letter was a lawful protest and protected activity cannot be accepted.
Miller does allege that King sent a further threatening letter on the basis of King's improper perception that Miller suffered from a disability. ¶ XII of Rec. doc. 1. Miller also alleges that Fleck sent a similar letter to her. Id. at ¶ XIII. While these allegations are accepted as true, there is no allegation that, in response to the second and third letters, Miller made any opposition to what she alleges to be illegal practices. Miller's petition plainly shows that Miller's only opposition to the allegedly illegal practices of American General occurred in her telephone conversation to King made in response to King's letter of September 25, 2000. Id. at ¶ XV. It is only this conservation that Miller alleges was a protected activity under Louisiana law. Id.
Miller's allegations do not show that she protested practices declared unlawful by the LCHRA. Accordingly, Miller does not state a claim for relief against the individual defendants under La.Rev.Stat. Ann. § 51:2256 and the claim must be dismissed.
2. Due Process Analysis
A court has personal jurisdiction over a non-resident defendant if: (1) the forum state's long-arm statute confers personal jurisdiction over that defendant; and (2) the forum state's exercise of such jurisdiction complies with the due process clause of the Fourteenth Amendment. See Latshaw, 167 F.3d at 211. Because Louisiana's long-arm statute extends jurisdiction to the full limits of due process, the Court must determine whether the exercise of jurisdiction satisfies the due process clause. See La.Rev.Stat. Ann. § 13:3201(B); Guidry v. United States Tobacco Co., 188 F.3d 619, 624 (5th Cir. 1999) ( citing Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188, 1192 (La. 1987)); Standard Fittings Co. v. Sapag, S.A., 625 F.2d 630, 639-40 (5th Cir. 1980).
The exercise of personal jurisdiction over a non-resident defendant satisfies due process when: (1) the defendant has purposefully availed itself of the benefits and protections of the forum state by establishing "minimum contacts" with that state; and (2) exercising personal jurisdiction over the defendant does not offend "traditional notions of fair play and substantial justice." Latshaw, 167 F.3d at 211 ( citing International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945)).
The minimum contacts prong of the due process analysis may be satisfied if the contacts give rise to specific personal jurisdiction or give rise to general personal jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868 (1984); Wilson, 20 F.3d at 647. A court may exercise specific jurisdiction over a non-resident defendant when the claim asserted against the defendant arises out of or relates to his contacts with the forum state. See Helicopteros, 466 U.S. at 414 n. 8, 104 S.Ct. at 1872 n. 8; Wilson, 20 F.3d at 647.
The individual defendants argue that the fiduciary shield doctrine precludes the exercise of personal jurisdiction over them because they were at all times acting in their capacities as employees of American General. The doctrine provides that jurisdiction over an individual cannot be predicated upon jurisdiction over a corporation. Stuart v. Spademan, 772 F.2d 1185, 1197 n. 11 (5th Cir. 1985). In Stuart the Fifth Circuit recognized an exception to this rule when the corporation is an alter ego of the individual. The Fifth Circuit found that while there was a blurring of the distinction between the corporation and the individual over whom the plaintiffs sought to assert jurisdiction, the plaintiffs had not demonstrated that the corporation was a facade for the individual's activities to attribute the corporation's contacts to the plaintiffs' state of residence to find jurisdiction over the individual. Id. at 1198. In this case, there are no allegations that American General is an alter ego of any of the three employees.
Perkins' letter shows his title as "Director, Corporate Human Resources" and King's letter shows her title as "Disability Management Administrator." Attachments to Rec. docs. 25 and 26.
Miller argues that Delong Equipment Co. v. Washing Mills Abrasive, 840 F.2d 843 (11th Cir. 1988), shows that the fiduciary shield doctrine does not apply. In Delong the plaintiff filed suit in Georgia under the Clayton Act, 15 U.S.C. § 24, alleging that the defendants were guilty of antitrust violations. Among the defendants was Robert Biebel, a Connecticut resident and a vice president and director of a co-defendant, BCS Company. The plaintiff alleged that in a meeting in Atlanta, Biebel told the plaintiff that although the Pratt Whitney account belonged to BCS, the plaintiff could serve as the local supplier and there was plenty of money in the contract for both the plaintiff and BCS so long as the plaintiff would sell product with a BCS proprietary label. The Eleventh Circuit described this as the heart of the alleged tort: conspiracy to restrain the trade and monopolize the sale of the product in Georgia, South Carolina and Tennessee. Id. at 849. Biebel argued that all of his contacts with Georgia were on behalf of BCS, so there was no jurisdiction over him in his individual capacity.
[Biebel]'s argument rests on the general proposition that an individual is not personally liable for a corporation's torts solely because of his position as an officer or director of a corporation. While we agree with this general rule, we recognize that it is equally well settled that personal participation by a corporate employee, officer, or director in the wrongful activities of a corporation is sufficient to make the individual, as well as the corporation, substantively liable for a tort.
We conclude that it is reasonable and comports with notions of "fair play" and "substantial justice" to extend a forum's long-arm statute to a non-resident individual who commits an act in the forum for which he can be held substantively liable, even if his actions in and contacts with the forum were entirely in his capacity as a corporate officer or director. The crucial matter is whether the individual defendant can be held personally liable for acts committed in the forum, not whether his contacts with the forum arose in his personal capacity. If substantive liability can extend to an individual for acts performed on behalf of a corporation, then the individual is amenable to the forum's long-arm statute, at least in situations where the nonresident individual physically was present in the forum when he participated in the tort.Id. at 851-52.
In a footnote, Delong notes that the minimum contacts test may be satisfied even when the act occurs outside of the forum, but such an act must bear a significant relationship to the cause of action. Id. at 851 at n. 10. The defendants' connection with the forum state must be such that they "should reasonably anticipate being haled into court" there. Latshaw, 167 F.3d at 211 ( citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567 (1980)). In order to determine whether a defendant purposefully availed herself of the privilege of conducting activities within this forum, the Court must consider factors such as the quality, nature and extent of defendant's activities in this forum, and the relationship between the cause of action and the contacts. See D.J. Investments, 754 F.2d at 545 n. 1 ( quoting Prejean v. Sonatrach, Inc., 652 F.2d 1260, 1268 (5th Cir. 1981)). A single act by a defendant directed at the forum state can be enough to confer in personam jurisdiction over her, if the cause of action arises out of that act. See Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 419 (5th Cir. 1993). Even an act done outside the state that has consequences or effects within the state will suffice as a basis for jurisdiction in a suit arising from those consequences if the effects are seriously harmful and were intended to or highly likely to follow from the non-resident defendant's conduct. Guidry, 188 F.3d at 628 ( citing Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 1487 (1984)).
In Brown v. Flowers Industries, Inc., 688 F.2d 328 (5th Cir. 1982), the plaintiff alleged that the individual defendant, who was a resident of Indiana and the president of the corporate defendant, made a defamatory telephone call to the United States Attorney in Oxford, Mississippi, with the result that plaintiff lost the chance to obtain a $4 million loan from the Farmers Home Administration. The Fifth Circuit held that, for purposes of considering the jurisdictional issue, the individual defendant purposefully availed himself of the benefits of the forum state when he initiated the telephone call and committed an intentional tort. The injurious effect of the alleged tort occurred in Mississippi, which the individual could easily have foreseen. Id. at 334.
When a defendant purposefully avails himself of the benefits and protection of the forum's laws — by engaging in activity . . . outside the state that bears reasonably foreseeable consequences in the state — maintenance of the law suit does not offend traditional notions of fair play and substantial justice.Id. at 333.
In order for Miller to avoid the effect of the fiduciary shield doctrine, she must show that each of the individuals purposefully availed themselves of the benefits of Louisiana and that they committed an intentional tort. Miller's only claim against the King, Fleck and Perkins is that, in violation of La.Rev.Stat. Ann. § 23:332, they retaliated against her because she opposed a practice declared unlawful by LCHRA. The only unlawful act alleged by Miller was her protest of the September 25, 2000 letter. Assuming for the moment the letter is seen as a basis for a reasonable belief on Miller's part that King was engaged in illegal activity, the letter does not show that King purposefully availed herself of the benefit of the forum state. King did no more than respond to Miller's request for leave and short term disability benefits. Assuming Miller's response was improper, it remains a response. To purposefully avail oneself, as described in Brown, requires that the defendant initiate the activity outside the state that bears reasonably foreseeable consequences in the state. Because Miller's claim against Fleck and Perkins depends on the allegation of retaliation in response to her protest of King's September 25, 2000 letter, a letter that was not initiated by them, it follows that they did not purposefully avail themselves of the benefits of the forum state. Miller's allegations against all three individual defendants are linked to the request thatshe initiated in September, 2000 for a leave of absence and short term disability benefits. If Miller's position is accepted, then any employee of a corporation who works outside of Louisiana and who responds to a request from an employee of the corporation in Louisiana can be hailed into court in Louisiana if the Louisiana employee contends the response describes illegal activity.
Under the second prong of the due process analysis, the Court must determine whether the exercise of personal jurisdiction over a non-resident defendant comports with "traditional notions of fair play and substantial justice." International Shoe, 326 U.S. at 316, 66 S.Ct. at 158; Ruston Gas Turbines, 9 F.3d at 421. The fairness factors considered by the court include: (1) the defendants' burden; (2) the forum state's interest; (3) the plaintiff's interest in convenient and effective relief; (4) the judicial system's interest in efficient resolution of controversies; and (5) the state's shared interest in furthering fundamental social policies. See Ruston Gas Turbines, 9 F.3d at 421 ( citing Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102, 112, 107 S.Ct. 1026, 1032 (1987); World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564). "When minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise ofjurisdiction will justify even the serious burdens placed on the alien defendant." Asahi, 480 U.S. at 112, 107 S.Ct. at 1033. The defendants must present a compelling case that conducting the litigation in this court would be so gravely difficult and inconvenient that they would be at a severe disadvantage in comparison to plaintiff. See Burger King, 471 U.S. at 477, 105 S.Ct. at 2184.
The individual defendants assert that it would offend the notion of fair play and substantial justice to compel them to defend this suit in Louisiana because they did not conduct business or own property in Louisiana and because they live and work in Indiana. The undersigned agrees. Louisiana's significant interest in protecting the right of its citizens to be free from retaliation for complaining about allegedly unlawful discrimination is not sufficient to assert jurisdiction over the individual defendants in this case. American General is subject to the jurisdiction of this Court and this is sufficient to enable Miller to challenge her termination under Louisiana law. Although one or more of the individual defendants may have to testify in the case because their actions form the basis of the claim, this does not tip the balance in favor of Miller. Miller has sued what at best can be described as middle management employees in American General's human resources department. It violates traditional notions of fair play and substantial justice to require such persons to come from Indiana to Louisiana to defend themselves personally. The Court finds it does not have personal jurisdiction over them.
CONCLUSION
For the foregoing reasons, the Court DENIES American General's motion to compel arbitration. Rec. doc. 6. Further, the Court GRANTS the individual defendants' motion to dismiss for lack of personal jurisdiction and the motion to dismiss Miller's LCHRA claim. Rec. doc. 5.