La Day v. Catalyst Technology, Inc.

• Decision Date: 15 August 2002
• Docket Number: No. 01-31049.,01-31049.
• Parties: Patrick LA DAY, Plaintiff-Appellant, v. CATALYST TECHNOLOGY, INC.; and Willie Craft, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

302 F.3d 474

Patrick LA DAY, Plaintiff-Appellant, v. CATALYST TECHNOLOGY, INC.; and Willie Craft, Defendants-Appellees.

No. 01-31049.

United States Court of Appeals, Fifth Circuit.

August 15, 2002.

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Pamela L. Ashman (argued), Baton Rouge, LA, Jimmy Simien, Simien & Simien, Baton Rouge, LA, for Plaintiff-Appellant.

L. Chris Butler (argued), Shell Oil Co., Houston, TX, for Catalyst Technology, Inc.

George Phillip Shuler, III, Richard B. Ramirez (argued), Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, LA, for Willie Craft.

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

Before DAVIS, SMITH and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In this title VII case of claimed same-sex harassment, Patrick La Day presented summary judgment evidence that his supervisor, Willie Craft, made obnoxious comments about La Day's sexuality, inappropriately touched a private part of La Day's body, and spat tobacco juice on him; Craft also had made crude remarks to other employees and touched them inappropriately.

The district court granted summary judgment for the defendants on La Day's same-sex sexual harassment claim. We conclude, to the contrary, that La Day presented a fact question concerning whether Craft is homosexual and harassed him severely enough to alter the terms and conditions of employment. La Day satisfied the test for same-sex harassment outlined in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), so his title VII claim should go to the jury. We affirm, however, the dismissal of La Day's claims for unlawful retaliation, intentional infliction of emotional distress ("i.i.e.d."), and battery.

I.

A.

Catalyst Technology, Inc. ("Catalyst"), hired La Day to work as a reactor technician in November 1996. The three incidents that led to this suit occurred in March 1998, when La Day was assigned to work on a job in Montgomery, Alabama, under Craft's supervision.

In the first incident, Craft observed La Day sitting in a car with La Day's girlfriend and saw "passion marks" on La Day's neck. According to La Day and his girlfriend, Craft approached them and stated, "I see you got a girl. You know I'm jealous."

On a later date, La Day alleges that Craft approached him from behind while he was bending down and fondled his anus. La Day described the contact as similar to "foreplay with a woman." La Day turned around immediately and told Craft not to touch him that way because "I don't play like that." Craft laughed and walked away. That same day, La Day reported the incident to his immediate supervisor. Later that day, Craft allegedly spit tobacco on La Day's hard hat and shirt, stating "this is what I think of you."

After La Day returned from the Montgomery job, he refused to report to his next assignment because Craft was the supervisor. Catalyst initiated termination proceedings against La Day.

In May 1998, Catalyst was served with an Equal Employment Opportunity Commission complaint that La Day had filed. Catalyst began an investigation into La Day's complaint, headed by Andy Clark, the Vice President for Human Resources. The investigation revealed that two other former employees had made similar complaints against Craft.

Bernard Strange had filed a written complaint against Craft with Catalyst's personnel manager, Charlotte Valentine, alleging that Craft had asked him to sit on his lap and told him that he (Strange) had "pretty lips" and that he could "suck dick" or "suck my dick." Valentine arranged a meeting between Strange and Craft, after which Strange asked her to destroy the complaint because "it was a misunderstanding." Clark also discovered that Chad Johnson, another former Catalyst employee, had filed a complaint claiming that he was "touched in the area of his genitals by Willie Craft." The notes of Clark's investigation contain detailed information regarding these two incidents.

After the incidents with Craft, La Day worked on at least two other projects for Catalyst, neither of which involved Craft. He alleges that other Catalyst employees insulted him and generally made life difficult for him as a result of his conflict with Craft.

Eventually, La Day resigned from Catalyst because he believed that he could no longer trust his fellow employees and claims that he lost sixty pounds, began drinking heavily, and experienced other health problems. In December 1998, he was diagnosed with major depressive disorder with anxiety features arising from work-related issues; in 1999, he was hospitalized for depression.

B.

La Day sued Catalyst and Craft in state court, claiming causes of action under title VII and Louisiana state sex discrimination law, a state i.i.e.d. claim against Craft, and state tort law vicarious liability claims against Catalyst. Catalyst removed the case to the federal district court, which granted summary judgment for Catalyst and Craft on all federal claims and some state claims. The court declined to exercise supplemental jurisdiction over the assault and battery claims against Craft.

II.

A summary judgment is reviewed de novo under the same standard as applied by the district court. King v. Ames, 179 F.3d 370, 373 (5th Cir.1999). The record is reviewed in the light most favorable to the nonmoving party, and the movant is required to "demonstrate that there are no genuine issues of material fact." Id. The court must consider both direct and circumstantial evidence but may not make "credibility assessments," which are the exclusive province of the trier of fact. Dibidale, Inc. v. Am. Bank & Trust Co., 916 F.2d 300, 307-08 (5th Cir.1990).

III.

We begin by addressing La Day's claims under title VII and Louisiana antidiscrimination law. Because the relevant Louisiana statute, LA.REV.STAT. 23:332, is "substantively similar" to title VII, the outcome will be the same under the federal and state statutes. Trahan v. Rally's Hamburgers, 696 So.2d 637, 641 (La.App. 1st Cir.1997). We therefore analyze the issue under the applicable federal precedents.

A.

1.

Sexual harassment is La Day's most important sex discrimination claim. In Oncale, the Court reversed this circuit and held that same-sex sexual harassment is actionable under title VII, but only if the plaintiff can "prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex." 523 U.S. at 81, 118 S.Ct. 998 (quotations and ellipses omitted). To avoid possible misunderstanding, it is important to note that judicial inquiry into the question whether a given instance of harassment constitutes sex-based discrimination is entirely separate from inquiry into whether the harasser's conduct was serious enough to constitute either quid pro quo or hostile environment harassment.¹

In a case of alleged same-sex harassment, courts first must determine whether the harasser's conduct constitutes sex discrimination. If the answer is "yes," the court must decide whether the challenged conduct meets the applicable standards for either a quid pro quo or hostile environment claim. For example, same-sex harassment that is "severe or pervasive" enough to create a hostile environment, Casiano, 213 F.3d at 284, might be excluded from the coverage of title VII because it was not discriminatory on the basis of sex. On the other hand, same-sex harassment that is indisputably discriminatory might not be serious enough to make out either a quid pro quo or hostile environment claim.

In Oncale, the Court outlined three ways in which a plaintiff can show that an incident of same-sex harassment constitutes sex discrimination. First, he can show that the alleged harasser made "explicit or implicit proposals of sexual activity" and provide "credible evidence that the harasser was homosexual." Id. at 80., 118 S.Ct. 998. Second, he can demonstrate that the harasser was "motivated by general hostility to the presence of [members of the same sex] in the workplace." Id. Third, he may "offer direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." Id. La Day alleges only the first type.

The present case raises an important issue of first impression for this court: What kind of proof constitutes "credible evidence that the harasser was homosexual"? Id. The Oncale Court gave no guidance on this point: "The Court's focus [in Oncale] was on what the plaintiff must ultimately prove rather than the methods of doing so." Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir.1999).²

Two other circuits, the Seventh and Ninth, have addressed this issue to a limited degree.³ The Seventh Circuit has held that there was sufficient evidence of homosexuality to get past summary judgment where the following facts were present:

There is evidence in the record suggesting that Jemison's harassment of Shepherd was borne of sexual attraction. Recall that the alleged harassment began with Jemison remarking a number of times that Shepherd was a "handsome young man." Subsequently, in one of the more graphic encounters between the two men, Jemison "rubbed himself into an erection" while Shepherd was laying on his stomach with cramps, and Jemison urged Shepherd to turn over, lest he "crawl up on top of [Shepherd] and fuck [him] in the ass." Jemison remarked to Shepherd another time that "[a] man can come if he's fucked in the ass." Finally, on the occasion that Shepherd came to work complaining of soreness, Jemison offered to make him feel better by giving him "a nice hot shower."

Although none of these incidents necessarily proves that Jemison is gay, the connotations of sexual interest in Shepherd certainly suggest that Jemison might be sexually oriented toward members of the same sex.

Id. at 1009-10 (citations omitted, brackets in original).

In a case with a considerably less unequivocal fact pattern, the...