Summary
recognizing that drowsiness caused by medication lacks the duration and long-term impact required for classification as a disability
Summary of this case from Peralta v. Avondale IndustriesOpinion
CIVIL ACTION No. 95-0999, SECTION "D" (1).
February 4, 1997
Before the court are two motions filed by defendant, Philip Morris, USA ("Philip Morris"):
1. Motion to Strike Dr. Michael Madow's Affidavit; and
2. Motion for Summary Judgment.
Plaintiff, Ted Wheelock, opposes both of these motions. The motions, which were originally set for hearing on December 18, 1996, are before the court on briefs without oral argument.
FACTUAL BACKGROUND
Ted Wheelock was hired by Philip Morris as a Sales Representative for its Ruston, Louisiana territory on May 6, 1984. In February, 1986, plaintiff Wheelock was transferred to the Jefferson and Orleans Parish area. He worked at Philip Morris, seemingly without incident, until April 5, 1993, when he wrote a letter to Rosemary Milton, the Region Human Resources Manager, alleging that company harassment policy had been violated by members of management using names with racial undertones.
However, on March 25, 1993, Wheelock was given a performance rating of "1" on a scale of 1 — 6 by his unit manager, Herbert Mendoza.
After receiving the letter, Ms. Milton scheduled a meeting on April 14, 1993 with plaintiff, witnesses to the alleged harassment, and members of management, some of whom had allegedly participated in the harassment. The meeting brought to light incidents in which terms derogatory to Hispanics had been used.
The management personnel present included Joe Kramer (Wheelock's former Unit Manager) and Rodney Hart (Wheelock's former Unit Manager), both originally named as defendants herein who have since been dismissed.
For instance, Joe Kramer admitted using the term "taco tico" in the presence of plaintiff, but stated that he was unaware that Wheelock considered it a derogatory term.
After the meeting, Wheelock worked without complaint until March 1, 1994, when his former counsel sent a letter to Philip Morris' Director of Human Resources stating that Wheelock and another employee had been subjected to verbal harassment and other discrimination based upon their age, race, and national origin. Ten days later, Wheelock applied to Philip Morris for temporary disability benefits, citing his work situation as the source of "severe stress and depression."
In fact, at one point during the summer of 1993, Wheelock assured Rosemary Milton things were "going okay." Deposition of Ted Wheelock at 45:17 — 46:9.
Attempts by Philip Morris to meet with Wheelock to investigate his complaints were unsuccessful. Wheelock cited the fact that he was heavily medicated in declining to meet with Philip Morris Human Resources representatives, and on March 21, 1994, Wheelock stated that his physician had advised him against meeting with Philip Morris representatives.
Mr. Wheelock's physician's record indicates the opposite.See Deposition of Ted Wheelock, 208:18-24.
On May 3, 1994, Rosemary Milton wrote Wheelock to inform him that his Short Term Disability Benefits were denied due to insufficient documentation, and that to be reconsidered for a medical leave of absence, he must provide additional medical information by May 9, 1994. Additionally, Philip Morris' Director of Occupational Health Services wrote Wheelock's physician, Dr. Peterson, requesting information about his alleged disability and stating that if none were forthcoming, Wheelock would be required to return to work. Finally, Philip Morris sent a letter to Wheelock's psychiatrist, Dr. Madow, making the same request. Wheelock received copies of the letters to Drs. Peterson and Madow.
On May 16, 1994, Philip Morris' Medical Department wrote Dr. Madow to inform him that the medical leave of absence was denied based upon the information Madow had provided, and that Wheelock would be required to return to work. After a May 23, 1994 telephone call to Wheelock's home, requesting that he contact the Region Office regarding his return to work, Wheelock was advised on June 16, 1994 that his medical leave had been denied and that he must return to work by June 27, 1994 unless additional medical documentation was submitted. According to Philip Morris, Wheelock failed to provide the medical documentation; Wheelock contends that Dr. Madow submitted a report via facsimile on May 17, 1994. On June 29, 1994, Wheelock was advised by Philip Morris' Human Resources Generalist that his failure to provide documentation, and/or return to work on June 27, 1994, was accepted as his voluntary resignation effective June 27, 1994. In the meantime, on June 24, 1994, Wheelock had filed an EEOC charge based on alleged discrimination. The instant lawsuit was filed on March 27, 1995.
Wheelock has submitted the sworn affidavit of Dr. Madow in support of his contention that Dr. Madow did in fact send additional medical information to Philip Morris via facsimile on May 17, 1994. The affidavit is the subject of the Motion to Strike filed by defendant.
I. MOTION TO STRIKE THE AFFIDAVIT OF DR. MICHAEL MADOW
Philip Morris contends that it was unaware of any letter sent by Dr. Madow on May 17, 1994 until plaintiff filed his Opposition to defendant's Motion for Summary Judgment. In so doing, Philip Morris complains that despite numerous discovery requests, the letter was never forthcoming, and that it should therefore be stricken. Philip Morris also seeks to strike the report due to a lack of reliability or credibility.
Wheelock has opposed the Motion to Strike by acknowledging that the document had not previously been produced, but stating that its production as part of his Memorandum in Opposition constitutes a supplement to the discovery process, and that Philip Morris has suffered no injury thereby. As to the credibility of the document, plaintiff has asserted that that is a matter best left to the jury.
In light of the fact that the trial has been continued without date, the court finds that Philip Morris is not prejudiced by the supplementing of discovery with the affidavit of Dr. Madow concerning the May 17, 1994 report. Additionally, the court agrees with plaintiff that the task of weighing the credibility of the affidavit and determining whether or not the letter was actually transmitted as plaintiff alleges, belongs to the jury. Accordingly, defendant's Motion to Strike the Affidavit of Dr. Michael Madow is denied.
II. MOTION FOR SUMMARY JUDGMENT
Based on the pleadings, depositions, and filings to date, defendant seeks summary judgment on the following causes of action, which the court will consider in turn: (1) origin discrimination due to a hostile work environment under Title VII; (2) origin discrimination due to disparate treatment under Title VII; (3) age discrimination under the Age Discrimination in Employment Act; (4) violation of the Americans with Disabilities Act; (5) retaliatory discharge in violation of Title VII and the False Claims Act; (6) violations of the Employee Retirement Income Security Act of 1974; and (7) intentional infliction of emotional distress under Louisiana law.
Origin Discrimination — Hostile Work Environment Claim
Plaintiff has alleged a cause of action for origin discrimination due to a hostile work environment under Title VII ( 42 U.S.C. § 2000e et seq). Title VII permits a plaintiff to bring suit for discrimination based on a theory of hostile work environment if the following elements are present: (1) plaintiff must belong to a protected class; (2) plaintiff must be subject to unwelcome harassment; (3) the harassment must be based upon plaintiff's origin; (4) the harassment must affect a term, condition, or privilege of employment; and (5) the employer must have known, or should have known of the harassment but failed to take prompt remedial action. See Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996). In the case at bar, the record demonstrates that Philip Morris took prompt remedial action once apprised of a problem. Therefore, the fifth element has not been met.
Plaintiff, who is Hispanic, notified Philip Morris of the alleged unwelcome harassment activity by letter on April 5, 1993. Upon receipt, Rosemary Milton, Region Human Resources Manager for Philip Morris, scheduled a meeting for April 14, 1993 to address the grievance.
Deposition testimony indicates that by the date the meeting convened, much of the name-calling had already ceased due to transfers, position changes, and the like involving some of the alleged perpetrators. As far as the other alleged perpetrators were concerned, Wheelock stated in deposition that the name-calling occurred before the meeting. While it is true enough (as plaintiff's counsel argues) that the fact that Wheelock admitted the name-calling occurred before the meeting does not rule out the possibility that it may also have occurred after the meeting, that argument is undermined by Wheelock's later conversation with Rosemary Milton. As Wheelock has admitted in his deposition, he was aware that Rosemary Milton was conducting an ongoing investigation, and when he spoke with her in the summer of 1993, she specifically inquired if things were "going okay," and he responded that they were. See Deposition of Ted Wheelock at 45:17-46:9. If the name-calling had continued after the meeting, this would be the obvious time for Wheelock to mention it, and he did not, leaving the court to conclude that the alleged harassment ceased after the April 14, 1993 meeting. While it is true that Mr. Wheelock has filed a self-serving affidavit into the record in which he asserts that the name-calling continued after the meeting, even by Ward Cashion, it is well-settled in the Fifth Circuit that a party may not defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony. Thurman v. Sears, Roebuck Co., 952 F.2d 128, 137 n. 23 (5th Cir.) cert. denied, 506 U.S. 845, 113 S.Ct. 136 (1992).
See Deposition of Ted Wheelock at 193 (Steve Cascio allegedly harassed plaintiff while he was his Unit Manager, in 1990-91); Id. at 171-72 (Barton Bankston's alleged derogatory comment was made while he was a Retail Merchandiser, a position which he left in May, 1987); see also Affidavit of Curley Marcotte, Nov. 4, 1996 (Mr. Marcotte had no contact with Mr. Wheelock after his December, 1991 transfer to Jackson, Mississippi).
See Deposition of Ted Wheelock at 192-93 (Rodney Hart's alleged verbal harassment occurred prior to the April 14, 1993 meeting); Id. at 166:21-25 (Ward Cashion's alleged harassment ended after the April 14, 1993 meeting); See also Affidavit of Joe Kramer, Nov. 9, 1996 (Joe Kramer promised not to use derogatory terms after the April 14, 1996 meeting, nor did he).
Mr. Wheelock's impeaching sworn testimony to the contrary may be found at Deposition of Ted Wheelock at 166:21-25; 45:17 — 46:9.
Accordingly, based upon this record, the court finds that Philip Morris took prompt action to remedy the situation complained of by Wheelock. Thus, the fifth element required to state a prima facie case of origin discrimination, namely, that an employer knew of harassment but failed to take prompt remedial action, has not been met, and Philip Morris is entitled to summary judgment on this issue.
Origin Discrimination — Disparate Treatment Claim
Plaintiff also seeks relief for alleged direct origin discrimination by disparate treatment under Title VII. In support of this claim, Wheelock's Memorandum in Opposition points to the allegedly unfair employee rating and to his "voluntary resignation" on June 27, 1994. Because the test for showing a prima facie case of disparate treatment varies slightly in non-discharge and discharge situations, the court addresses each incident separately.
1. Plaintiff's Complaint regarding the performance evaluation.
Plaintiff has complained that his unsatisfactory job performance evaluation was due to his minority status. In such a case, where the adverse employment action was not discharge, plaintiff is required to show: (1) he is a member of a protected class; (2) he is qualified for the job in question; and (3) that employees outside the class were treated more favorably.Thornbrough v. Columbus and Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985).
The court accepts plaintiff's assertion that he is a member of a protected class by origin, i.e., Hispanic. The court also accepts that Wheelock was qualified for his position. While defendant has submitted various reports indicating instances of substandard performance by Wheelock, the bottom line is that Wheelock was hired in 1984 and remained employed with Philip Morris until 1994, a period of ten years. After two years, when Wheelock requested a transfer for family reasons, Philip Morris went to some effort to accommodate him. Given these facts, the court finds that notwithstanding the documentation submitted by Philip Morris, the record supports an inference that Wheelock possessed the basic qualifications for his position. Accordingly, plaintiff has met the first two elements required to state a prima facie case for a non-discharge disparate treatment claim.
The court is aware that Wheelock has described himself both as Hispanic and as being of French/Spanish ancestry. However, since defendant's employees have admitted to calling plaintiff epithets generally aimed at Hispanics, the court assumes that Wheelock identified himself as Hispanic and that there was a general presumption at Philip Morris that he was Hispanic.
The third element requires plaintiff to show that people outside the class were treated more favorably, in circumstances "nearly identical" to his. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (citations omitted). Thus, plaintiff must show that non-Hispanic employees who performed the same or worse than him received higher performance evaluations. In plaintiff's original opposition, he did not address the prima facie requirements at all. Having done so by order of this court in its Minute Entry dated January 7, 1997, plaintiff has made only general allegations that non-Hispanics "were not singled out by management to be humiliated publicly based on their heritage. They were not requested to perform dubiously legal acts on behalf of the company." Plaintiff's Response to Minute Entry of January 8, 1997. Accordingly, the court finds that plaintiff has failed to plead with specificity the facts required to satisfy the non-discharge disparate treatment test, even when given a second chance and explicit instruction to do so. Thus, plaintiff has failed to meet his burden and defendant is entitled to summary judgment on the non-discharge disparate treatment claim.
2. Plaintiff's Complaint regarding his "voluntary resignation."
In Marks v. Prattco, Inc., 607 F.2d 1153 (5th Cir. 1979), the Fifth Circuit joined several other circuits in extending the framework for Title VII disparate treatment outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973), to discharge cases. To state a prima facie case of disparate treatment discrimination in a plaintiff's discharge, the plaintiff must show: (1) membership in a protected class; (2) that he met applicable job qualifications; (3) that despite these qualifications he was discharged; and (4) that after plaintiff's discharge, his position was filled by a nonminority. 607 F.2d at 1155. Once a plaintiff has stated a prima facie case, he still cannot prevail unless he shows that the defendant has not offered a legitimate, non-discriminatory reason for the adverse employment action, or that the defendant's legitimate reason is a pretext for origin discrimination. LaPierre v. Benson Nissan, 86 F.3d 444, 448 (5th Cir. 1996).
In the instant case, Wheelock is not able to state a prima facie case, so, in the context of his disparate treatment claim, the court need not address the issue of whether Philip Morris' proffered reason for discharging him was merely a pretext for a discriminatory motive.
As discussed above, the court finds that Wheelock has met the first two elements of the test. The third element, whether plaintiff was discharged from his position (instead of voluntarily resigning), depends in part on whether the faxed letter from Dr. Madow was in fact received, a point which defendant disputes.
However, notwithstanding the questions surrounding the third element, plaintiff cannot state a prima facie case of disparate treatment stemming from his alleged discharge, because he cannot establish the fourth element, namely, that he was replaced by a non-minority. Philip Morris has submitted documentation indicating that Wheelock was replaced by an Asian immigrant. This fact alone undermines Wheelock's contention that he was discharged due to his origin. Because plaintiff is unable to make a prima facie showing of disparate treatment, defendant is entitled to summary judgment on this issue.
Age Discrimination Claim
Plaintiff has also sued under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. To state a prima facie case of age discrimination, a claimant must show: (1) he was discharged; (2) he was qualified for his position; (3) he was within the protected class; and (4) he was replaced by someone outside the protected class, someone younger, or was otherwise discharged because of his age. See Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996). Once these prima facie elements have been met, a claimant must further prove that whatever non-discriminatory reason was provided by the employer for his termination was merely a pretext, and that age was "a determinative factor in the adverse employment decision." LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 450 (5th Cir. 1996).
In addition to the fact that Philip Morris has alleged that during 1993-94 that 30 employees under the age of 40 were involuntarily separated, versus 23 over the age of 40, plaintiff has made no showing whatsoever to establish a prima facie case of age discrimination. Rather, plaintiff states in hisMemorandum in Opposition that he "only relies at present on his age at the time of being fired." Memorandum in Opposition at 9. Because plaintiff acknowledges that he is unable to state a prima facie case of age discrimination, much less establish that age was a determinative factor in Philip Morris' employment decision, summary judgment in favor of the defendant is appropriate, and Wheelock's age discrimination claim should be dismissed as a matter of law.
Americans with Disabilities Act Claim
Plaintiff also seeks to recover under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. To prove a prima facie case of discrimination under the ADA, a plaintiff must prove that: (1) he had a covered disability; (2) he is a qualified individual; and (3) that he suffered an adverse employment action solely because of his disability. Rizzo v. Children's World Learning Centers, Inc., 84 F.3d 758, 763 (5th Cir. 1996). In the instant case, plaintiff has failed to state a prima facie case because he has not met the first element; that is, he is not affected by a disability covered under the ADA.
A covered disability is "a physical or mental impairment that substantially limits one or more of the major life activities of [the disabled] individual." 42 U.S.C. § 12102(2)(A). "Major life activities" in the ADA context means "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).
Plaintiff has alleged two disabilities: drowsiness and depression. In his Complaint at paragraph 9, Wheelock states that he was "under the care of a physician for stress related problems caused by his employer, that were a substantial impairment to his major life activities, specifically, though not limited to, his work performance." In deposition, when asked to discuss his disability in terms of a major life activity, he stated that he was "drowsy from some medications." Deposition of Ted Wheelock at 213:5-9. Wheelock also complained of depression, agreeing that it was a fair statement that his depression arose due to "the harassment of Philip Morris management" (Id. at 218:4-12), and the way that he perceived some members of Philip Morris management felt towards him (Id. at 218:13-17), as well as "the environment at work and people associated with it." (Id. at 219:5-12). For reasons that follow, neither Wheelock's drowsiness or depression qualify as covered disabilities under the ADA.
In determining whether an impairment should be classified as a covered disability, the implementation legislation of the ADA provides factors to be considered including: (1) the nature and severity of the impairment; (2) the duration of the impairment; and (3) the long-term impact of the impairment. 29 C.F.R. § 1630.2(j)(2).
Plaintiff's first stated disability, drowsiness caused by his medication, does not meet the second and third elements of this test, because it lacks the duration and long-term impact required for classification as a disability. Plaintiff himself has admitted in deposition that this disability has ceased. When questioned directly: "When did this disability of drowsiness end?", he replied, "When I stopped taking the Klonopin."Deposition of Ted Wheelock, 218:19-21. Mr. Wheelock discontinued the Klonopin prescription at the end of 1994. Id. at 13:7-8. Accordingly, the drowsiness disability has evaporated, clearly lacking the duration and long-term impact required to be classified as a disability covered under the ADA. Finally, the last word on plaintiff's medication status is that he is currently taking the anti-depressant Serzone, and he intends to discontinue that "when the anger is gone." Id. at 9:24-10:14; 184:22-24. Even if plaintiff were to come back and allege that the Serzone has undesirable side effects (which he has not — as above, he has specifically stated that his drowsiness ended when he discontinued Klonopin), Wheelock's transitory need for the Serzone — for the period of his anger — also does not meet the duration or long-term impact standards of the ADA. Thus, plaintiff's drowsiness from taking medication cannot serve as a basis for an ADA claim.
Regarding his depression, Wheelock attributes it to the alleged harassment by Philip Morris management, which caused him so much anxiety and stress that he was unable to work there. However, this type of depression, arising out of a particular job, is situational rather than a limitation on a major life activity. While it may have rendered Mr. Wheelock unable to work at Philip Morris, it does not appear to have rendered him unable to work at other jobs. Courts have uniformly held that an inability to work at a particular position does not render an individual "disabled" under the ADA. This situational type of depression does not interfere with plaintiff caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working at another job.
See, e.g., Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986); Maulding v. Sullivan, 961 F.2d 694 (8th Cir. 1992),cert. denied, 113 S.Ct. 1255 (1993); Daley v. Koch, 892 F.2d 212 (2d Cir. 1989); Torres v. Bolger, 781 F.2d 1134 (5th Cir. 1986) (per curiam).
Finally, in considering plaintiff's ADA claim, the court is impressed by the fact that plaintiff himself specifically denied having a disability. In filing his EEOC charge on June 24, 1994, the EEOC investigator handling Wheelock's claim interviewed him regarding the claim. The investigator's notes state that: "CP [charging party] strongly insisted that he does not have a disability and does not want this included in the charge." (emphasis in original). Defendant's Motion for Summary Judgment, Exhibit II at 2. This statement undermines plaintiff's claims in view of the fact that the ADA requires a record of a covered impairment, or that claimant be regarded as having such.See 42 U.S.C. § 12102(2). Plaintiff took affirmative steps himself to assure that there was no record of an impairment, and the EEOC report reflects that he did not regard himself as having one.
Accordingly, because Wheelock possesses no disability covered under the ADA, his claim under that statute must fail, and Philip Morris is entitled to summary judgment on that issue.
Retaliatory Discharge Claim
Plaintiff has also alleged retaliatory discharge under two theories, arguing that he was discharged in retaliation for "whistle-blowing" about illegal cigarette sales, and also for assisting another employee, James Gray, in prosecuting his discrimination case against Philip Morris.
1. The "whistle-blowing" charge
While plaintiff's original Complaint made only general allegations concerning this charge, by order of this court in a Minute Entry dated January 7, 1997, plaintiff informed the court that his whistle-blower claim was brought pursuant to 31 U.S.C. § 3729 et seq., the "False Claims Act."
The False Claims Act provides a remedy for individuals who suffer adverse employment consequences for aiding in the prosecution of false claims made to avoid payment due to the Government. 31 U.S.C. § 3729(a)(7); 3730(h). Plaintiff has alleged that Philip Morris sold cigarettes without tax stamps, thereby avoiding its tax obligation to the Government. Moreover, he alleges that his various statements and testimony to this effect formed part of the impetus for his alleged termination.
However, by its very terms, the False Claims Act provides whistle-blower protection only in actions brought pursuant to the False Claims Act. The law is clear that "any employee who is discharged . . . or in any other manner discriminated against . . . because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, shall be entitled to all relief necessary." 31 U.S.C. § 3730(h) (emphasis added). Because plaintiff has not instituted any action under the False Claims Act, nor has he acted in furtherance of any one else's action under that section, he is not entitled to whistle-blower protection. Accordingly, defendant is entitled to summary judgment on plaintiff's claim for retaliatory discharge for whistle-blowing.
2. Plaintiff's Title VII retaliatory discharge claim
With regard to plaintiff's Title VII retaliatory discharge claim, the relevant statute provides that:
[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, . . . because he has opposed any practice made an unlawful employment practice by this Title, or because he has made a charge, testified, assisted or participated in any manner in any investigation, proceeding or hearing, under this subchapter.42 U.S.C. § 2000e-3(a).
Plaintiff apparently provided damaging deposition testimony against Philip Morris in a race discrimination suit involving James Gray, a former Philip Morris employee. See Deposition of Ted Wheelock, at 165. This assistance by plaintiff appears to qualify under the statutory provision as "testif[ying], assist[ing] or participat[ing] in . . . [an] investigation, proceeding or hearing, under [Title VII]. 42 U.S.C. § 2000e-3(a).
However, merely to have engaged in such protected activity is not enough to recover under a theory of retaliatory discharge. Mr. Wheelock must also show causation — that he participated in such activity and that he was fired because of it. To prove causation, plaintiff must show that whatever legitimate, nondiscriminatory reason Philip Morris gave for deeming him to have voluntarily resigned was a pretext for retaliatory discrimination. Philip Morris' nondiscriminatory reason for deeming Wheelock to have voluntarily resigned is that Wheelock failed to submit appropriate medical documentation or to report to work on June 27, 1994, an assertion which Wheelock disputes. This question relies at least in part on whether Dr. Madow actually sent his report to Philip Morris on May 17, 1994 (in satisfaction of the requirement that additional medical documentation be provided). Because this material fact remains in dispute, the court is unable to grant summary judgment at this juncture on the question of retaliatory discharge under Title VII.
The court recognizes that defense counsel only recently became aware of the letter from Dr. Madow, and that additional discovery may be required to ascertain details surrounding it. The court does not preclude the possibility of entertaining another Motion for Summary Judgment as more details concerning the letter surface.
The court observes that if Wheelock should succeed in showing that Philip Morris received Dr. Madow's report, and thus that the reason proffered by Philip Morris for deeming Wheelock to have resigned voluntarily was a mere pretext, that alone would not compel a finding in Wheelock's favor. Wheelock bears the burden of proving — either directly or circumstantially — not only that the proffered reason was a pretext, but also that Philip Morris' actual motivation in terminating him was retaliation for his deposition testimony in the James Gray case.
ERISA Claim
Plaintiff has also filed suit under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"), seeking severance pay and other benefits he claims are owed him under the statute.
Defendant argues that plaintiff's claim lacks substantive merit because under the relevant plan, an employee who voluntarily resigns is ineligible for severance pay, and the plaintiff voluntarily resigned (as discussed above). Plaintiff disputes that his resignation was voluntary. If the letter were transmitted on May 17, 1994, plaintiff would be on surer footing in his argument that his "voluntary resignation" was not voluntary, because he had complied with defendant's request for documentation. Because it is disputed whether Dr. Madow submitted the report at all, a genuine issue of material fact exists precluding summary judgment. Because a genuine issue of material fact exists as to whether plaintiff did indeed voluntarily resign, defendant is not entitled to summary judgment on the ERISA claim.
Intentional Infliction of Emotional Distress Claim
Plaintiff has also alleged a claim for intentional infliction of emotional distress, based on three alleged injuries: the name-calling by Philip Morris employees; a low performance evaluation; and the denial of a medical leave of absence which resulted in his being deemed to have voluntarily resigned.
First, plaintiff's complaint in this regard suffers from procedural infirmities, because under Louisiana Civil Code article 3492, such actions are subject to a one-year statute of limitations. The name-calling ceased as of April 14, 1993 (see discussion above), and the performance evaluation was given on March 25, 1993. Because suit was not filed until March 27, 1995, these two instances are prescribed. Moreover, even if these claims had not prescribed, the facts surrounding them would not support a cause of action for intentional infliction of emotional distress. Thus, the only remaining basis for Wheelock's intentional infliction of emotional distress claim is the medical leave denial and the resulting alleged voluntary resignation on Jun 27, 1994.
To recover for intentional infliction of emotional distress under Louisiana law, a plaintiff must prove that the defendant "acted in an extreme and outrageous manner, that [he] suffered severe emotional distress and that [the defendant] either desired to inflict severe emotional distress, or knew that severe emotional distress was certain or substantially certain to occur from its conduct." White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). The name-calling allegedly suffered by Wheelock does not meet this "extreme and outrageous" test. In fact, name-calling rarely meets White's extreme and outrageous test.See, e.g., Trahan v. BellSouth Telecommunications, Inc. 881 F. Supp. 1080, 1085 (W.D. La. 1995); Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993) (supervisor calling plaintiff a Mexican and wetback over a period of time did not satisfy "extreme, outrageous conduct" standard under Texas law). In order to survive the White test, the name-calling must be:
so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.White, 585 So.2d at 1209.
While calling Mr. Wheelock "taco-tico" or "bandito" may have been insulting to Mr. Wheelock, the court cannot say that such name-calling is so extreme as to be utterly intolerable in a civilized community. Thus, it does not support a claim for intentional infliction of emotional distress.
The allegedly discriminatory performance evaluation also does not support an intentional infliction of emotional distress claim, because mere employment disputes can never be the subject of intentional infliction claims. Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33 (5th Cir. 1992). InJohnson, when Merrell Dow fired an at-will employee suffering from a psychiatric disability, the court held they were within their rights because employers must remain free "to supervise, review, criticize, demote, transfer and discipline employees," while acknowledging that such actions always result in emotional distress. Id. at 34 (emphasis added). In the case at bar, the performance review critical of Mr. Wheelock seems precisely to be the type of activity protected by Johnson. Therefore, no matter how upsetting the negative review was to Wheelock, it does not support a cause of action for intentional infliction of emotional distress.
Finally, the court considers Wheelock's emotional distress claim as it relates to his alleged voluntary resignation. If it is ultimately determined that Philip Morris was legally entitled to terminate Wheelock, he will not be able to state a claim for intentional infliction of emotional distress: "An employer will not be held liable for exercising its legal right to terminate an employee, even though he is well aware that such [action] is certain to cause emotional distress." Johnson, 965 F.2d 31, 34. However, if the opposite were to prove true — i.e., that Philip Morris discharged Wheelock for engaging in activity protected by Title VII — then Wheelock may be able to state a cause of action for intentional infliction of emotional distress.
In so holding, the court does not mean to state that if Wheelock's termination is found to have violated Title VII then he is entitled to recover for intentional infliction of emotional distress. The court merely finds that at this juncture, not enough has been conclusively determined to grant summary judgment in favor of defendant on this portion of the claim. Accordingly, the defendant is entitled to summary judgment dismissing plaintiff's intentional infliction of emotional distress insofar as it relates to the name-calling or the performance review. Plaintiff's claim for emotional distress based upon his termination is preserved for now.
Accordingly, having reviewed the record, the memoranda of counsel, and applicable law;
IT IS ORDERED that defendant's, Philip Morris', Motion to Strike the Affidavit of Dr. Michael Madow should be and is hereby DENIED. IT IS FURTHER ORDERED that defendant's Motion for Summary Judgment be GRANTED IN PART and DENIED IN PART; and that plaintiff's, Ted Wheelock's, claims for origin discrimination due to hostile work environment under Title VII; origin discrimination due to disparate treatment under Title VII; age discrimination under the ADEA; discrimination under the Americans with Disabilities Act; intentional infliction of emotional distress based upon name-calling and the poor performance evaluation; and retaliatory discharge under the False Claims Act, 31 U.S.C. § 3729 et seq.; should be and are hereby DISMISSED with prejudice and at plaintiff's cost.
Thus, the following claims remain: plaintiff's claim for retaliatory discharge under Title VII; plaintiff's claim for violation of ERISA; and plaintiff's claim for intentional infliction of emotional distress based upon his alleged discharge from Philip Morris.