Bonin v. Fredericks Machine & Tool Shop Inc

MOTION for Partial Summary Judgment

W.D. La.February 22, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION RODGER G. BONIN, SR., Plaintiff v. FREDERICK’S MACHINE & TOOL SHOP, INC., Defendant CIVIL ACTION NO. 15-02880 JUDGE REBECCA F. DOHERTY MAGISTRATE JUDGE PATRICK J. HANNA PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT Rodger G. Bonin, Sr. (“Plaintiff” or “Bonin”) files this Motion for Partial Summary Judgment, which seeks the dismissal of certain affirmative defenses asserted by Frederick’s Machine & Tool Shop, Inc. (“FMTS” or “Defendant”) in its Answer. Rec. Doc. 3. FMTS carries the burden with respect to proving affirmative defenses. FMTS cannot meet this burden with regard to certain of its affirmative defenses. Accordingly, certain of FMTS’s affirmative defenses are ripe for dismissal pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth herein and in Plaintiff’s Memorandum in Support of his Motion for Partial Summary Judgment, Plaintiff requests that the Court grant his motion and enter an order dismissing certain of Defendant’s affirmative defenses. Case 6:15-cv-02880-RFD-PJH Document 11 Filed 02/22/17 Page 1 of 2 PageID #: 49 2 Respectfully submitted, /s/ Robert B. Landry III Robert B. Landry III (#18998) rlandry@landryfirm.com ROBERT B. LANDRY III, PLC 5420 Corporate Boulevard, Suite 204 Baton Rouge, Louisiana 70808 Telephone: (225) 349-7460 Facsimile: (225) 349-7466 COUNSEL FOR PLAINTIFF, RODGER G. BONIN, SR. CERTIFICATE OF SERVICE I certify that, on this 22nd day of February, 2016, a copy of the foregoing has been filed via the CM/ECF system, which will send notice of electronic filing to all counsel of record. /s/ Robert B. Landry III Case 6:15-cv-02880-RFD-PJH Document 11 Filed 02/22/17 Page 2 of 2 PageID #: 50 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION RODGER G. BONIN, SR., Plaintiff v. FREDERICK’S MACHINE & TOOL SHOP, INC., Defendant CIVIL ACTION NO. 15-02880 JUDGE REBECCA F. DOHERTY MAGISTRATE JUDGE PATRICK J. HANNA MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT Rodger G. Bonin, Sr. (“Plaintiff” or “Bonin”) files this Memorandum in Support of Plaintiff’s Motion for Partial Summary Judgment. This motion seeks the dismissal of certain affirmative defenses asserted by Frederick’s Machine & Tool Shop, Inc. (“FMTS” or “Defendant”) in its Answer. Rec. Doc. 3. The law requires that FMTS carry the burden with respect to proving its affirmative defenses. FMTS cannot meet this burden with regard to the affirmative defenses identified below. Therefore, certain of FMTS’s affirmative defenses are ripe for dismissal under Rule 56 of the Federal Rules of Civil Procedure. I. FACTUAL BACKGROUND This is a case of blatant workplace disability discrimination and retaliation in violation of the Americans with Disabilities Act and concurrent state law. On or about July 27, 2015, Bonin’s eight years of employment with Defendant ended and he received an FMTS Separation Notice stating: “FIRED: MEDICATIONS PRESCRIBED BY A PHYSICIAN THAT MAY IMPAIR WORK PERFORMANCE OR POSE A SAFETY ISSUE.” See Separation Notice, Exhibit 2 to Daniel Dore Deposition, Exhibit A. On August 7, 2015, Bonin filed an EEOC charge, alleging disability discrimination and retaliation by FMTS in violation of the Americans With Disabilities Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 1 of 10 PageID #: 51 2 Act of 1990 as amended (“ADAAA”), 42 U.S.C. §§ 12101 et seq. See Exhibit B-1, EEOC Charge. Plaintiff had 300 days to file his charge. 42 U.S.C. § 2000e-5(e)(1). Bonin filed his EEOC charge eleven (11) days after his employment ended - his charge was timely. The EEOC granted Bonin the right to sue on October 15, 2015. See Exhibit B-2, EEOC Notice of Right to Sue. Within 90 days of receipt of the right to sue, Plaintiff filed the above- captioned lawsuit on December 24, 2015 against FMTS. Rec. Doc. 1, Complaint. Plaintiff’s Complaint was timely filed. At the time of his separation, Plaintiff was employed by FMTS as a quality control inspector working full-time and earning $14 per hour. Exhibit C, Rodger Bonin Deposition (“Bonin Dep.”), p. 29. Post-termination, he found work 18 to 20 hours per week as a sacristan at Our Lady of Prompt Succor Church in New Iberia at $10 per hour. Id. at 16. Plaintiff is over the age of 65. See Exhibit B-1, EEOC Charge. The Complaint asserts causes of action under the ADAAA and pendent claims under state employment discrimination laws, namely, La. R.S. 23:301 et seq. and La. R.S. 51:2256. Rec. Doc. 1, Complaint, ¶¶ 23-34. FMTS filed an Answer on February 26, 2016, asserting inter alia certain affirmative defenses that are the subject of this motion. Rec. Doc. 3, Answer. FMTS’s first affirmative defense asserts that Plaintiff’s Complaint fails to state a claim upon which relief may be granted. Rec. Doc. 3, Answer, p. 6. FMTS’s second affirmative defense asserts that all claims based on unlawful employment practices not made the subject of a charge timely filed with the appropriate Federal and/or State agency are time-barred. Rec. Doc. 3, Answer, p. 6. FMTS’s sixth affirmative defense asserts that any emotional distress suffered by Plaintiff was not reasonable under the circumstances. Rec. Doc. 3, Answer, p. 7. Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 2 of 10 PageID #: 52 3 FMTS’s seventh affirmative defense asserts that Plaintiff failed to state facts sufficient to provide a legal or factual basis to award Plaintiff damages for emotional distress. Rec. Doc. 3, Answer, p. 7. FMTS’s eighth affirmative defense asserts that Plaintiff’s Complaint fails to state facts sufficient to provide a legal or factual basis to award compensatory damages. Rec. Doc. 3, Answer, p. 7. FMTS asserts as its ninth and tenth affirmative defenses that Louisiana’s Workers’ Compensation Law is Plaintiff’s exclusive remedy for his recovery for injuries, including emotional distress damages, arising out of his employment. Rec. Doc. 3, Answer, p. 7. FMTS’s thirteenth affirmative defense in part asserts that Plaintiff has failed to mitigate his damages. Rec. Doc. 3, Answer, p. 8. FMTS’s fourteenth affirmative defense is the after acquired evidence doctrine. Rec. Doc. 3, Answer, p. 8. Each of these affirmative defenses lacks evidentiary support in the record and/or a legal theory to support their application to the case. Therefore, Plaintiff’s Motion for Partial Summary Judgment must be granted. II. LAW AND ARGUMENT The purpose of summary judgment is to isolate and dispose of factually insufficient claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). If the movant bears the burden of proof on a claim or defense on which he is moving for summary judgment, he must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). However, if the nonmovant bears the burden of proof, the movant may discharge his burden by Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 3 of 10 PageID #: 53 4 showing that there is an absence of evidence to support the nonmovant’s case. See Celotex, 477 U.S. at 325. In this instance, the movant is not required to offer evidence to negate the nonmovant’s claims. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885-86 (1990). Once the movant has carried his burden, the nonmovant “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. Pro. Rule 56(e). The nonmovant (here FMTS) must offer affirmative evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). A summary judgment motion may be used to dispose of affirmative defenses. See e.g. Broussard v. TMR Co., 2013 WL 5516462 (W.D. La. Oct. 1, 2013); EEOC v I-Sector Corp., 2003 WL 29939 (N.D. Tex. Jan. 2, 2003); Koch Industries v. United Gas Pipe Line Co., 700 F. Supp. 865, 866-67 (M.D. La. 1988). The burden is on the defendant to prove an affirmative defense. See Broussard, 2013 WL 5516462 at *4. Where a defendant does not produce any evidence or any theory to support any basis for the application of an affirmative defense to the facts, summary judgment is appropriate. See Robinson v. Texas Auto Dealers Ass’n, 2003 WL 21767954 (E.D. Tex. Mar. 27, 2003). Boilerplate affirmative defenses are subject to dismissal pursuant to a motion for summary judgment. See id. A. First affirmative defense: failure to state a claim upon which relief may be granted. FMTS’s first affirmative defense states: “Some or all of Plaintiff’s Complaint fails to state a claim upon which relief may be granted.” Rec. Doc. 3, Answer, p. 6. This is a boilerplate defense. Plaintiff has sufficiently pled claims under the ADAAA and parallel state law. See Rec. Doc. 1, Complaint. FMTS must produce evidence or a theory to support the basis for the application of this defense. It cannot, so this affirmative defense must be dismissed. B. Second affirmative defense: no timely administrative charge with respect to all or some claims. Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 4 of 10 PageID #: 54 5 FMTS’s second affirmative defense states: “All claims based on alleged unlawful employment practices not made the subject of a charge timely filed with the appropriate Federal and/or State agency are time-barred.” Rec. Doc. 3, Answer, p. 6. Plaintiff’s EEOC charge states that the charge is based on disability discrimination under the ADAAA and retaliation. See Exhibit B-1, EEOC Charge. The Complaint asserts disability discrimination and retaliation under the ADAAA and parallel state law. See Rec. Doc. 1. Nothing in the record establishes that the Complaint contains any claims for which a charge has not been timely filed with the EEOC. FMTS must produce evidence to support this affirmative defense; otherwise summary judgment in favor of Plaintiff is warranted. C. Sixth affirmative defense: any emotional distress suffered by Plaintiff was not reasonable under the circumstances. FMTS’s sixth affirmative defense states: “Any emotional distress suffered or claimed to have been suffered by Plaintiff was not reasonable or justified under the circumstances.” Rec. Doc. 3, Answer, p. 7. FMTS’s sixth affirmative defense does not appear to constitute an affirmative defense here. “[T]he law is clear that not all defenses are affirmative ones.” Wilkerson v. Stalder, 2010 WL 1293375, *2 (M.D. La. Feb, 22, 2010). An affirmative defense is a defendant’s assertion of facts and argument that if true will defeat the plaintiff’s claim, even if all the allegations of the complaint are true. Id. Plaintiff’s sixth affirmative defense merely attempts to characterize whether Plaintiff can meet his burden of proof at trial on an element of damages and does not constitute an affirmative defense to a claim for disability discrimination. Plaintiff has asserted no claim for the tort of intentional infliction of emotional distress for which FMTS’s sixth affirmative defense may constitute a proper affirmative defense. Summary judgment in favor of Plaintiff is warranted on this affirmative defense. Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 5 of 10 PageID #: 55 6 D. Seventh affirmative defense: failure to state facts sufficient for award of emotional distress damages. FMTS’s seventh affirmative defense states: “Plaintiff has failed to state facts sufficient to provide a legal or factual basis to award damages to Plaintiff for past and future mental anguish and anxiety, past and future mental and emotional distress, anger and anxiety.” Rec. Doc. 3, Answer, p. 7. This is a boilerplate defense. Plaintiff has sufficiently pled claims under the ADAAA and parallel state law. See Rec. Doc. 1, Complaint. Compensatory damages such as emotional distress damages are available in claims made under the ADAAA and concurrent state law. See 42 U.S.C. § 1981a and La. R.S. 23:303(A). Furthermore, under Fed. R. Civ. Pro. 8(a), a complaint must include only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Under the federal notice pleading system, such a statement must simply “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Swierkiewica v. Sorema N.A., 534 U.S. 506, 512 (2002). Plaintiff is not subjected to a heightened pleading standard that requires him to “state facts sufficient” that would entitle him to recover damages for emotional distress. FMTS must produce evidence or a theory to support the basis for the application of this defense. If it cannot, this affirmative defense must be dismissed. E. Eighth affirmative defense: failure to state facts sufficient for award compensatory damages. FMTS’s eighth affirmative defense states: “Plaintiff’s Complaint fails to state facts sufficient to provide a legal or factual basis to award compensatory damages.” Rec. Doc. 3, Answer, p. 7. Like FMTS’s seventh affirmative defense, this is a boilerplate defense seeking to hold Plaintiff to a heightened pleading standard that does not exist in federal court. Plaintiff has sufficiently pled claims under the ADAAA and parallel state law. See Rec. Doc. 1, Complaint. Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 6 of 10 PageID #: 56 7 Compensatory damages are available in claims made under the ADAAA and concurrent state law. See 42 U.S.C. § 1981a and La. R.S. 23:303(A). FMTS must produce evidence or a theory to support the basis for the application of this defense. If it cannot, this affirmative defense must be dismissed. F. Ninth and tenth affirmative defenses: Louisiana’s Workers’ Compensation Law is Plaintiff’s exclusive remedy. FMTS’s ninth affirmative defense states: “To the extent Plaintiff seeks recovery for any alleged injury arising out of his employment, including, but not limited to, any emotional distress damages, the exclusive remedy for any such injury is the Louisiana Workers’ Compensation Law over which this forum lacks subject matter jurisdiction.” Rec. Doc. 3, Answer, p. 7. Similarly, FMTS’s tenth affirmative defense states: “To the extent any injury alleged by Plaintiff is compensable under or covered by Louisiana Workers’ Compensation law, the exclusive remedy for some or all of Plaintiff’s allegations is in worker’s compensation.” Id. These affirmative defenses appear to be boilerplate pleading for a personal injury case and are not applicable in a lawsuit filed pursuant to the ADAAA and parallel state law. Plaintiff has not made claim in tort for injuries arising from his employment. His claims arise under the ADAAA and parallel state law, and compensatory damages including emotional distress damages are available in claims made under those laws. See 42 U.S.C. § 1981a and La. R.S. 23:303(A). FMTS must produce evidence or a theory to support the basis for the application of this defense. If it cannot, this affirmative defense must be dismissed. G. Thirteenth affirmative defense: failure to mitigate damages. FMTS’s thirteenth affirmative defense states in part: “Alternatively, and solely in the event that Plaintiff succeeds in proving some or all of his allegations, all of which are denied, Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 7 of 10 PageID #: 57 8 Plaintiff has failed to mitigate his damages as required by law.” Rec. Doc. 3, Answer, p. 8.1 A plaintiff suing for back pay under the ADAAA has a duty to mitigate his damages using reasonable diligence to obtain substantially equivalent employment. U.S. E.E.O.C v. IESI Louisiana Corp., 720 F.Supp.2d 750, 754 (W.D. La. 2010) (citations omitted). The burden, however, is on the employer to prove plaintiff failed to mitigate. Id. To do so, the employer must demonstrate that substantially equivalent work was available and plaintiff failed to use reasonable diligence to obtain it. Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990). See also Ellerbrook v. City of Lubbock, Tex., 465 Fed. Appx. 324, 337 (5th Cir. 2012); Lamb v.City of Sweetwater Housing Authority, 3 F.3d 439 (5th Cir. 1993); Buckingham v. Booz Allen Hamilton, Inc., 64 F.Supp.3d 981, 984 (S.D. Tex. 2014) (granting plaintiff’s motion for partial summary judgment on mitigation). Defendant’s burden is heavy and will be met only upon a showing that plaintiff acted unreasonably. Washington v. Davis, 2002 WL 1798764, *3 (E.D. La. Aug. 5, 2002). The range of reasonable conduct is broad and a plaintiff must be given the benefit of every doubt in assessing his conduct. Id. An attack on the plaintiff’s credibility is insufficient to meet the defendant’s burden of proof on this issue. Floca v. Homecare Health Services, Inc., 845 F.2d 108, 112 (5th Cir. 1988). The reasonableness of a plaintiff’s diligence “should be evaluated in light of the individual characteristics of the claimant and the job market.” Sellers, 902 F.2d at 1193. FMTS, therefore, must demonstrate that substantially equivalent work was available. Furthermore, FMTS must demonstrate that Plaintiff acted unreasonably. The range of 1 FMTS alternatively asserts offset of amounts earned post-termination. Thus, FMTS raised two affirmative defenses under its thirteenth affirmative defense caption. At this time, Plaintiff challenges only the failure to mitigate portion of the thirteenth affirmative defense. Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 8 of 10 PageID #: 58 9 reasonableness for Plaintiff’s conduct is broad, and he is given every benefit of the doubt. FMTS cannot meet this heavy burden. In discovery, Plaintiff provided FMTS with records of the many jobs he applied for after his termination. Exhibit C, Bonin Dep., p. 129-32. Plaintiff is over the age of 65. The reasonableness of his diligence should be evaluated in light of his age (an individual characteristic) and the availability of substantially equivalent employment in the job market - especially for those over the age of 65. Plaintiff has found part-time employment as a church sacristan. Exhibit C, Bonin Dep., p. 16. Defendant cannot show he acted unreasonably. FMTS must come forward with evidence supporting this affirmative defense, or the defense must be dismissed. To allow FMTS to proceed with its defense of failure to mitigate without any evidence to support such a defense would improper, see Buckingham, supra, and prejudicial to Plaintiff. H. Fourteenth affirmative defense: the after-acquired evidence doctrine. FMTS’s fourteenth affirmative defense states: “To the extent Defendant discovers, during the course of this action, that Plaintiff engaged in any conduct that would warrant discharge or other employment action under company policy, practice or procedure, Plaintiff’s alleged damages will be limited in accordance with the after acquired evidence doctrine.” Rec. Doc. 3, Answer, p. 8. “Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Smith v. Berry Co., 165 F.3d 390, 395 (5th Cir.1999) (citing McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-363, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)). FMTS has Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 9 of 10 PageID #: 59 10 discovered no evidence of wrongdoing on Plaintiff’s part that would have justified his termination had FMTS known about it at the time. In his requests for production of documents propounded on FMTS, Plaintiff requested documents relevant to FMTS’s affirmative defenses. See Exhibit B-3, FMTS’s Response to Requests for Production No. 1-3. FMTS has provided no documents that support an affirmative defense of the after-acquired evidence doctrine because it has none. This defense must be dismissed. III. CONCLUSION FMTS has asserted a number of inapplicable and/or boilerplate affirmative defenses, as briefed above. Such affirmative defenses are subject to dismissal pursuant to a motion for summary judgment. Bonin, therefore, requests that the affirmative defenses briefed above be dismissed and that partial summary judgment be granted in favor of Plaintiff. Respectfully submitted, /s/ Robert B. Landry III Robert B. Landry III (#18998) rlandry@landryfirm.com ROBERT B. LANDRY III, PLC 5420 Corporate Boulevard, Suite 204 Baton Rouge, Louisiana 70808 Telephone: (225) 349-7460 Facsimile: (225) 349-7466 COUNSEL FOR PLAINTIFF, RODGER G. BONIN, SR. CERTIFICATE OF SERVICE I certify that, on this 22nd day of February, 2016, a copy of the foregoing has been filed via the CM/ECF system, which will send notice of electronic filing to all counsel of record. /s/ Robert B. Landry III Case 6:15-cv-02880-RFD-PJH Document 11-1 Filed 02/22/17 Page 10 of 10 PageID #: 60 Daniel James Dore Rodger G. Bonin, Sr. v. Frederick's Machine & Tool Shop, Inc. Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION RODGER G. BONIN, SR. CIVIL ACTION NO. 15-02880 VERSUS JUDGE REBECCA F. DOHERTY FREDERICK'S MACHINE & TOOL SHOP, INC. MAGISTRATE JUDGE PATRICK J. HANNA Deposition of DANIEL JAMES DORE, 110 Wise Street, Broussard, Louisiana 70518, taken in the offices of Jones Walker, LLP, 600 Jefferson Street, Suite 1600, Lafayette, Louisiana 70501, on Tuesday, the 4th of October, 2016. APPEARANCES: ROBERT B. LANDRY, III, PLC (By: Robert B. Landry, III, Esq.) 5420 Corporate Boulevard Suite 204 Baton Rouge, Louisiana 70808 ATTORNEYS FOR PLAINTIFF JONES WALKER, LLP (By: Christopher S. Mann, Esq.) 201 St. Charles Avenue 47th Floor New Orleans, Louisiana 70170 ATTORNEYS FOR DEFENDANT EXHIBIT A - Plaintiff's Motion for Partial Summary Judgment Case 6:15-cv-02880-RFD-PJH Document 11-2 Filed 02/22/17 Page 1 of 3 PageID #: 61 Daniel James Dore Rodger G. Bonin, Sr. v. Frederick's Machine & Tool Shop, Inc. Offices in New Orleans and Baton Rouge www.psrdocs.com Professional Shorthand Reporters, Inc. 1-800-536-5255 Page 47 1 if you want to collect unemployment, you've been 2 wanting to retire, do it," whatever. 3 Go home that afternoon; and come back 4 the next morning, let me know. 5 Q Who told him that? Who told Rodger 6 that? 7 A Daniel Dore. 8 Q I'm going to show you a document I'll 9 mark as Exhibit 2 to the deposition. This is a 10 separation notice for Rodger Bonin from 11 Frederick's. It's FM-67. 12 You've seen this before? 13 A Yes, I have. 14 Q Okay. If you would, would you read 15 for the jury the explanation of the reason for 16 separation that's provided here? 17 A What you want to do? 18 Q You see where it says "fired"? 19 A Yeah. 20 Q Would you read that sentence that 21 follows that? 22 A That's a false statement. 23 Q Would you read it for the jury, 24 please? 25 A Do I have to? EXHIBIT A - Plaintiff's Motion for Partial Summary Judgment Case 6:15-cv-02880-RFD-PJH Document 11-2 Filed 02/22/17 Page 2 of 3 PageID #: 62 LOIisiam VI'«l