655 F.3d 435 (5th Cir. 2011), 10-30767, Dediol v. Best Chevrolet, Inc.

Docket Nº:10-30767.
Citation:655 F.3d 435
Opinion Judge:CARL E. STEWART, Circuit Judge:
Party Name:Milan DEDIOL, Plaintiff-Appellant, v. BEST CHEVROLET, INCORPORATED; Donald Clay, Defendants-Appellees.
Attorney:John Courtney Wilson (argued), Metairie, LA, for Plaintiff-Appellant. Angella Hebert Myers, Mark C. Carver (argued), Myers Law Group, L.L.P., New Orleans, LA, for Defendants-Appellees. Gail S. Coleman (argued), U.S. Equal Opportunity Commission, Washington, DC, for Equal Employment Opportunity Co...
Judge Panel:Before SMITH and STEWART, Circuit Judges.[1]
Case Date:September 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 435

655 F.3d 435 (5th Cir. 2011)

Milan DEDIOL, Plaintiff-Appellant,


BEST CHEVROLET, INCORPORATED; Donald Clay, Defendants-Appellees.

No. 10-30767.

United States Court of Appeals, Fifth Circuit.

September 12, 2011

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         John Courtney Wilson (argued), Metairie, LA, for Plaintiff-Appellant.

          Angella Hebert Myers, Mark C. Carver (argued), Myers Law Group, L.L.P., New Orleans, LA, for Defendants-Appellees.

          Gail S. Coleman (argued), U.S. Equal Opportunity Commission, Washington, DC, for Equal Employment Opportunity Commission, Amicus Curiae.

         Appeal from the United States District Court for the Eastern District of Louisiana.

          Before SMITH and STEWART, Circuit Judges.1

          CARL E. STEWART, Circuit Judge:

         Plaintiff-Appellant Milan Dediol (" Dediol" ) appeals the district court's grant of summary judgment for his former employer, Defendant-Appellee Best Chevrolet, Incorporated (" Best Chevrolet" ), on his claims of hostile work environment and for constructive discharge. Because we find genuine issues of material fact, we REVERSE AND REMAND.


         Dediol was employed at Best Chevrolet from June 1, 2007, until August 30, 2007. During his tenure, he worked directly under Donald Clay (" Clay" ), Best Chevrolet's Used Car Sales Manager. Dediol was 65 years old during his employment with Best Chevrolet, and he was also a practicing born-again Christian. Dediol alleges that, on July 3, 2007, friction surfaced between him and Clay when he requested permission to take off from work for the next morning— July 4, 2007— to volunteer at a church event. Dediol received permission from Clay's assistant manager, Tommy Melady (" Melady" ), but Clay overruled Melady in derogatory terms. Dediol alleges that Clay told him, " You old mother* * * * * *, you are not going over there tomorrow" and " if you go over there, [I'll] fire your f* * * * *g ass."

         Dediol claims that after his request to take off from work for the morning of July 4th, Clay never again referred to him by his given name, instead calling him names like " old mother* * * * * *," " old man," and " pops." Clay would employ these terms for Dediol up to a half-dozen times a day from on or around July 3, 2007, until the end of his employment. Dediol also claims that " [Clay] stole a couple of deals from me[,]" and directed them towards younger salespersons.

         According to Dediol, Clay also began to make comments related to Dediol's religion. Examples of these comments include " go to your God and [God] would save your job; " " God would not put food on your plate; " and " [G]o to your f* * * *ng God and see if he can save your job." Clay disparaged Dediol's religion approximately twelve times over the two months leading up to Clay's departure from Best Chevrolet. At one point, Clay instructed Dediol to go out to the lot to make sales by saying, " Get your ass out on the floor." Dediol responded to this instruction by stating he was busy reading the Bible. To this, Clay responded " Get outside and catch a customer. I don't have anybody in the lot. Go get outside."

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          Clay also allegedly provoked fights with Dediol. On many occasions, there were incidents of physical intimidation and/or violence between Clay and Dediol. According to Dediol, Clay would threaten him in a variety of ways, including threats that Clay was going to " kick [Dediol's] ass." On one occasion, Clay took off his shirt, and stated to Dediol, " You don't know who you are talking to. See these scars. I was shot and was in jail."

         Much of the complained-of conduct occurred in front of Melady. According to Dediol, by the end of July 2007, he requested permission from the acting General Manager (and New Car Manager), John Oliver (" Oliver" ), to move to the New Car Department. To wit, Dediol also repeated the offending language in front of Oliver in the days leading up to, and when he made his request to change departments. Dediol avers that his request was precipitated by Clay's conduct. This request was preliminarily approved by Melady. Yet, when Clay learned of Dediol's request, Clay denied Dediol's transfer and stated, " Get your old f* * * * *g ass over here. You are not going to work with new cars."

         Tensions escalated and reached a climax at an office meeting on August 29, 2007. During an increasingly volatile exchange, Clay proclaimed, " I am going to beat the ‘ F’ out of you," and " charged" toward Dediol in the presence of nine to ten employees. Dediol continued working the balance of that day and the next. Allegedly, the next day, Dediol grew tired of his employment at Best Chevrolet and working under Clay. In a subsequent meeting with managers, Dediol stated, " I cannot work under these conditions— you are good people, but I cannot work under these conditions. It's getting too much for me." Dediol stopped coming to work after August 30, 2007, after which he was terminated for abandoning his job. Dediol filed a complaint with the Equal Employment Opportunity Commission (" EEOC" ) and he received his Right-To-Sue letter from the EEOC on July 8, 2008.

         On August 22, 2008, Dediol filed suit in the Eastern District of Louisiana alleging the following claims: hostile work environment based on age, religion harassment and constructive discharge, and state law claims of assault, stemming from the August 29, 2007 incident. Best Chevrolet and Clay filed a motion for summary judgment, which the district court granted on July 20, 2010. Dediol timely appealed.



         Summary judgment is appropriate where, considering all the allegations in the pleadings, depositions, admissions, answers to interrogatories, and affidavits, and drawing inferences in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party has the burden of demonstrating that there are no genuine issues of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial. Steadman v. Texas Rangers, 179 F.3d 360, 366 (5th Cir.1999). This court reviews the grant of summary judgment de novo. Floyd v. Amite Cnty. Sch. Dist., 581 F.3d 244, 247 (5th Cir.2009). We apply the same legal standards that the district court applied to determine whether summary judgment was appropriate. Lamar Adver. Co. v. Cont'l Cas. Co., 396 F.3d 654, 659 (5th Cir.2005).

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          Title VII makes it " an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, [age] or national origin." 42 U.S.C.A. § 2000e-2(a)(1). The phrase " terms, conditions, or privileges of employment" includes requiring people...

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