Eduardo Chaverri v. Dole Food Company, Inc.

546 F. App'x 409

5th Cir.

2013

Check Treatment

Docket

Eduаrdo Alvarado CHAVERRI; Javier Antonio C. Mena; Feliz Pedro Chevez; Victor Julia Loria Ramirez; Olma Matarrita; et al, Plaintiffs-Appellants v. DOLE FOOD COMPANY INCORPORATED; Dole Fresh Fruit Company; Standard Fruit Company; Standard Fruit & Steamship Company; Dow Chemical Company; Occidental Chemical Corporation, individually & successor to Occidental Chemical Company, & Occidental Chemical Agricultural Products, Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas, Best Fertilizer Company; Amvac Chemical Corporation; Shell Oil Company; Chiquita Brands International Incorporated; Chiquita Brands Incorporated; Maritrop Trading Corporation; Del Monte Fresh Produce, N.A., Defendants-Appellees.

No. 12-31026

United States Court of Appeals, Fifth Circuit

Sept. 19, 2013

541 F. Appx 409

affirm the district court‘s disposition of this issue.³

D. Hiner‘s Retaliation Claim

Hiner argues that the three evеnts that together constituted a hostile work environment occurred both because of his race and as retaliation for his filing an EEOC claim. In order to make out a prima facie case of unlawful retaliation under Title VII, the plaintiff must show that he (1) engaged in protected activity, (2) an adverse employment action occurred, and (3) there is a causal link between the protected activity and the adverse employment action. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). As with a discrete discrimination claim, the employer may rebut the plaintiff‘s prima facie case by articulating a legitimate, nondiscriminatory reason for the adverse employment action. See id. at 304-05. The plaintiff then has the burden of demonstrating pretext. Id. Hiner has established the first element of his prima facie case. However, even assuming the second two elements have been established (which is not at all clear), the Army has offered a legitimate, nondiscriminatory reason for each of the three cited incidents, namely that Hunt‘s harsh languаge is typical of his management style, that many CSTA employees other than Hiner experienced increased workloads, and that it was cheaper to send someone from Atlanta to Puerto Rico than from San Antonio. Hiner has not argued that any of these reasons is merely pretext for retaliation.

III. CONCLUSION

For the foregoing rеasons, we AFFIRM the district court‘s judgment.

Eduardo Alvarado CHAVERRI; Javier Antonio C. Mena; Feliz Pedro Chevez; Victor Julia Loria Ramirez; Olma Matarrita; et al, Plaintiffs-Appellants

DOLE FOOD COMPANY INCORPORATED; Dole Fresh Fruit Company; Standard Fruit Company; Standard Fruit & Steamship Company; Dow Chemical Company; Occidental Chemical Corporation, individually & successor to Occidental Chemical Company, & Occidental Chemical Agriculturаl Products, Incorporated, Hooker Chemical & Plastics, Occiden-tal Chemical of Texas, Best Fertilizer Company; Amvac Chemical Corporation; Shell Oil Company; Chiquita Brands International Incorporated; Chiquita Brands Incorporated; Maritrop Trading Corporation; Del Monte Fresh Produce, N.A., Defendants-Appellees.

Tobias Bermudez Chаvez; Gerardo Antonio Fonseca Torres; Franklin Guillen Salazar; Garcia Montes Jose Gabino; Mariano De Los Angeless Obando Pizarro; et al, Plaintiffs-Appellants

Dole Food Company Incorporated; Dole Fresh Fruit Company; Standard Fruit Company; Standard Fruit & Steamship Company; Dow Chemical Company; Occidental Chemical Corporation, individually & successor to Occidental Chemical Company, & Occidental Chemical Agricultural Products, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas, Best Fertilizer Company; Amvac Chemical Corporation; Chiquita Brands International Incorporated; Chiquita Brands Incorporated; Maritrop Trading Corporation; Del Monte Fresh Produce, N.A., Incorporated; Shell Oil Company, Defendants-Appellees.

Bernardo Abrego Jorieto; Simon Abrego Pineda; Onchi Abrego Quintero; Dilvio Alvarez Moreno; Juan Choly Aparicio; et al, Plaintiffs-Appellants

Dole Food Company Incorporated; Dole Fresh Fruit Company; Standard Fruit Company; Standard Fruit & Steamship Compаny; Dow Chemical Company; Occidental Chemical Corporation, individually & successor to Occidental Chemical Company, & Occidental Chemical Agricultural Products, Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas, Best Fertilizer Company; Amvac Chemical Corporation; Shell Oil Company; Chiquita Brands International Incorporated; Chiquita Brands Inсorporated; Maritrop Trading Corporation; Del Monte Fresh Produce, N.A., Incorporated, Defendants-Appellees.

Alvarado Alfaro Miguel Francisco; Edgar Arroyo Gonzalez; Marcelo Corea Corea; Jose Diaz Benavidez; Gonzalez Marin Marvin, et al, Plaintiffs-Appellants

Dole Food Company Incorpоrated; Dole Fresh Fruit Company; Standard Fruit Company; Standard Fruit & Steamship Company; Dow Chemical Company; Occidental Chemical Corporation, individually & successor to Occidental Chemical Company, & Occidental Chemical Agricultural Products, Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas, Best Fertilizer Company; Amvac Chemical Corporation; Shell Oil Company; Chiquita Brands International Incorporated; Chiquita Brands Incorporated; Maritrop Trading Corporation; Del Monte Fresh Produce, N.A., Incorporated, Defendants-Appellees.

Jorge Luis Aguilar Mora; Carlos Aguirre Alvarez, also known as Carlos Aguirre Flores Alvarez; Juan Jose Arguello Jiminez; Jorge Bustos Oses; Rafael Bustos Bustos; et al, Plaintiffs-Appellants

Dole Food Company Incorporated; Dole Fresh Fruit Company; Standard Fruit Company; Standard Fruit & Steamship Company; Dow Chemical Company; Occidental Chemical Cor-poration, individually & successor to Occidental Chemical Company, & Occidental Chemical Agricultural Products, Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas, Best Fertilizer Company; Amvac Chemical Corporation; Shell Oil Company; Chiquita Brands International Incorporated; Chiquita Brands Incorporated; Maritrop Trading Corporation; Del Monte Fresh Produce, N.A., Incorporated, Defendants-Appellees.

German Eduardo Bravo Valderramos; Edwin Cerdas Masis; Jorge Luis Cordero Bаquero; Johnny Espinoza Gamboa; Esney Hernandez Fajardo; et al, Plaintiffs-Appellants

Dole Food Company Incorporated; Dole Fresh Fruit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Company; Standard Fruit Company; Standard Fruit & Steamship Company; Dow Chemical Company; Occidental Chemical Corporation, individually & successor to Occidental Chemical Company, & Occidental Chemical Agricultural Products, Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas, Best Fertilizer Company; Amvac Chemical Corporation; Shell Oil Company; Chiquita Brands International Incorporated; Chiquita Brands Incorporated; Maritrop Trading Corporation; Del Monte Fresh Produce, N.A., Incorporated, Defendants-Appelleеs.

Edwin Aguero Jimenez; Jorge Aguero Retana; Alberto Conejo Chacon; Didier Cordero Cisneros; Estanislao Cruz; et al, Plaintiffs-Appellants

Dole Food Company Incorporated; Dole Fresh Fruit Company; Standard Fruit Company; Standard Fruit & Steamship Company; Dow Chemical Company; Occidental Chemical Corporation, individually & successor to Occidental Chemical Company, & Occidеntal Chemical Agricultural Products, Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas, Best Fertilizer Company; Amvac Chemical Corporation; Shell Oil Company; Chiquita Brands International Incorporated; Chiquita Brands Incorporated; Maritrop Trading Corporation; Del Monte Fresh Produce, N.A., Incorporated, Defendants-Appellees.

Scott M. Hendler, Rebecca Ruth Webber, Hendler Law Firm, P.C., Austin, TX, Scott Labarre, Gauthier, Houghtaling & Williams, L.L.P., Metairie, LA, Andrew Allen Lemmon, Esq., New Orleans, LA, Irma Lois Netting, Esq., Lemmon Law Firm, L.L.C., Hahnville, LA, Jonathan Standish Massey, Esq., Massey & Gail, L.L.P., WA, DC, for Plaintiffs-Appellants.

Phillip A. Wittmann, John Pratt Farnsworth, Stone Pigman Walther Wittmann, L.L.C., New Orleans, LA, Andrea Ellen Neuman, Esq., Gibson, Dunn & Crutcher, L.L.P., Irvine, CA, Michael Lаmar Brem, Esq., Schirrmeister Diaz-Arrastia Brem, L.L.P., Houston, TX, Neil C. Abramson, Esq., S. Gene Fendler, Esq., Liskow & Lewis, P.L.C., New Orleans, LA, D. Ferguson McNiel, III, Vinson & Elkins, L.L.P., Houston, TX, Kerry J. Miller, Mary Katherine Klinefelter Frilot, L.L.C., New Orleans, LA, Mary S. Johnson, Esq., Ingrid Marina Kemp, Johnson Gray McNamara, L.L.C., Mandeville, LA, Samuel Eugene Stubbs, Esq., Rodney Jack Reynolds, Esq., Pillsbury Winthrop Shaw Pittman, L.L.P., Houston, TX, Darrell Keith Cherry, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, Boаz S. Morag, Cleary Gottlieb Steen & Hamilton, L.L.P., New York, NY, Henry B. Alsobrook, Jr., Don S. McKinney, Esq., Margot L.K. Want, Esq., Adams & Reese, L.L.P., New Orleans, LA, for Defendants-Appellees.

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.

PER CURIAM:^*

The plaintiffs appeal the district court‘s order dismissing their suit as time-barred under Louisiana‘s one-year prescriptive period. We AFFIRM.

FACTS AND PROCEDURAL HISTORY

The plaintiffs claim they were injured ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by the pesticide dibromochloropropane^* (“DBCP“), to which they were exposed when working on banana fаrms in Costa Rica, Ecuador, and Panama between 1960 and 1992. The relevant background of the DBCP litigation across the United States as well as in other countries beginning in 1993 is described in significant detail in the district court‘s order dismissing this suit. See Chaverri v. Dole Food Co., Inc., 896 F.Supp.2d 556, 559-69 (E.D.La.2012). The present appeal involves seven consolidated actions that 258 agricultural workers brought in the United States District Court for the Eastern District of Louisiana, filed between May 31 and June 2, 2011. We will use the lead plaintiff‘s name, Chaverri, to refer to all. The defendants in this action, whom we will collectively call “Dole Food,” are entities alleged to have either manufactured, distributed, or used DBCP on the farms where the рlaintiffs worked between 1960 and 1992.

Dole Food filed a motion for summary judgment contending Chaverri‘s claims were time-barred, or “prescribed,” under Louisiana law. The district court in this diversity suit applied Louisiana prescription rules. It determined that Chaverri‘s claims were facially prescribed. Even if prescription had been temporarily interruрted, such interruption ended long ago. The suit was now time-barred in Louisiana.

On appeal, Chaverri argues that a putative class action filed in Texas in 1993, later dismissed but then reinstated, has sufficiently interrupted prescription. Chaverri also asks for remand to the district court for consideration of a new decision by the Louisiana Suprеme Court.

DISCUSSION

This court reviews a district court‘s grant of summary judgment de novo, applying the same standard as did the district court. Richard v. Wal-Mart Stores, Inc., 559 F.3d 341, 344 (5th Cir.2009). Summary judgment is appropriate if the moving party can show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.R.CIV.P. 56(a).

I. Application of Louisiana‘s prescription rules

All plaintiffs allege they were exposed to DBCP at least 18 years before these lawsuits were filed in 2011. Accordingly, the district court held that all claims were facially prescribed under Louisiana‘s governing one-year prescriptive period. See LA. CIV.CODE art. 3492. Chaverri then had the burden of proving “suspension, interruption, or some exception to prescription....” Terrebonne Parish Sch. Bd. v. Mobil Oil, 310 F.3d 870, 877 (5th Cir. 2002). To meet this burden, Chaverri argued thаt Louisiana courts would recognize the filing of putative class actions in other states—what the parties have labeled cross-jurisdictional tolling—as a basis for interrupting prescription. The district court assumed without holding that a putative class action filed in federal court in Texas in 1993 interrupted prescription. The court held, thоugh, that dismissal of that suit in 1995 would have caused the prescriptive period to begin anew. See LA. CIV.CODE ANN. art. 3463. After reviewing subsequent procedural events in that suit, the court concluded that Chaverri‘s claims were filed in 2011 well beyond Louisiana‘s one-year prescriptive period. Largely for the reasons expressed in the district court‘s well-reasоned opinion, we agree that Chaverri presented no facts relevant to any statute or caselaw to support that prescription was interrupted for a sufficient period of time. We will discuss below a new Louisiana Supreme Court precedent that Chaverri argues is relevant.

On appeal, Chaverri renews the аrguments about the interruption of prescription and also advances a claim—which Dole Food contends is waived by Chaverri‘s failure to brief the issue in the district court—of issue preclusion. Chaverri argues that the Texas litigation has been interpreted by other courts around the country adversely to Dole Food, precluding the distriсt court here from reaching a contrary decision. Issue preclusion, also known as collateral estoppel, requires that the same issue be presented in both the prior and current litigation. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir.2005). The district court in its thorough ruling discussed many of the other DBCP decisions. See Chaverri, 896 F.Supp.2d at 561-62. Chaverri‘s arguments fail because nоne of the decisions address the specific issue presented in this case: did the putative class action in Texas interrupt prescription of Chaverri‘s 2011 claims under the specific Louisiana rules?

The other argument raised by Chaverri, and which Dole Food also contends was not raised in the district court, is that the district court‘s order violated ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the Rooker-Feldman doctrine. That doctrine prohibits a state-court loser from using a federal court to gain the equivalent of a reversal. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005). The motion for summary judgment in this case did not invite the district court to reverse any state-court judgment addressing prescription in Louisiana.

II. The Louisiana Supreme Court‘s decision in Quinn

In its ordеr granting summary judgment, the district court assumed for the purposes of its analysis that Louisiana recognized cross-jurisdictional interruption of prescription. After the district court‘s grant of summary judgment but before the appellate briefing here, the Louisiana Supreme Court issued a decision rejecting cross-jurisdictional interruption of prescription. Quinn v. Louisiana Citizens Prop. Ins. Corp., 118 So.3d 1011 (La.2012).

The Quinn court analyzed Article 596 of the Louisiana Code of Civil Procedure, which was adopted in 1997 and provides for suspension of prescription by the filing of class actions. Quinn, 118 So.3d at 1018-19. The court held that the text of Article 596 was so closely tied to the specific procedures of Louisiana сlass actions that prescription could be suspended only by “putative class actions filed in Louisiana state courts.” Id. at 1019. At least since 1997, then, cross-jurisdictional tolling has not existed in Louisiana. Dole Food would have us go further and hold that the Quinn court‘s policy reasoning indicates such tolling has never been recognized. See id. at 1021-22. It is not necessary to decide whether Quinn clearly addressed the state‘s law prior to 1997. It is enough that Quinn provides no analytical assistance to Chaverri. On the face of the complaint, Louisiana‘s one-year prescriptive period has expired. Under Louisiana law, Chaverri had the burden of establishing some rule of suspension, interruption, or other exception tо save these facially-prescribed claims. See Terrebonne Parish Sch. Bd., 310 F.3d at 877. Quinn makes it clear that class actions filed in other states no longer interrupt prescription and gives no support to an argument that such suits ever would have done so. Therefore, Chaverri‘s burden remains unmet.

Chaverri seeks a remand to permit the district court to determine thе relevance of Quinn and engage in a choice-of-law analysis. Chaverri contends that Quinn is expressly premised on a Louisiana statute and thus leaves open the question of its applicability to a federal court proceeding. We see no basis for remand. The district court sitting in diversity properly applied Louisiana‘s substantive law of prescription. See, e.g., Orleans Parish Sch. Bd. v. Asbestos Corp., 114 F.3d 66, 68 (5th Cir.1997). Therefore a new choice-of-law analysis would be superfluous. There is no need for the district court to review the effect of Quinn as we have done so after full briefing by the parties.

AFFIRMED.

Rowland J. MARTIN, Jr., Successor in Interest to Moroco Ventures L.L.C., Plaintiff-Appellant

Charles GREHN; Reliant Financial Incorporatеd; Edward Bravenec, Esq.; The Law Office ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of McKnight and Bravenec; 1216 West Avenue Incorporated, Defendants-Appellees.

No. 13-50070

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 25, 2013.

Notes

Hiner also makes much of the fact that during some period before 2008, Hunt displayed a portrait of Nathan Bedford Forrest, the first leader of the Ku Klux Klan, near his office. After Hiner complained about the pоrtrait to the CSTA‘s Deputy Chief of Staff, the portrait was removed. Hiner did not raise the argument that the display of this portrait constituted a hostile work environment before the EEOC, but even if his claim had been properly exhausted, it would matter little because the parties do not dispute that the portrait was removed in 2006 or 2007. In order for the “continuing violation doctrine” to apply—which it must for this claim to avoid being time-barred—Hiner would have to “show an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of aсtion.” (quoting ). The display of the portrait ended several years before the incidents forming the basis of Hiner‘s hostile work environment claim, and Hiner makes no argument that it was in any way related to those events, other than the conclusory assertion that they were all part of a hostile work environment.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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