ORDER AND RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Lately pregnant, a long-term employee, a certain store’s co-director, asks her direct supervisor for a restructured set of duties, i.e. an accommodation of responsibilities, none deemed “essential” or “primary.” Her doctor advises it; the health of baby and mother demand it. To her, it seems neither unusual nor problematic, her proposed alterations having been previously afforded by her employer to many other colleagues laboring under similar physical limitations. The supervisor forwards the request to the corporate headquarters located on Florida’s Atlantic coast. Eventually, in response, an offer she cannot refuse is made: accept a demotion or take the leave to which the law entitles you. She takes the leave, as it makes the most sense. She needs the money, and the insurance is most crucial, while her fiancée cannot help, for he is unemployed. A healthy baby is born a few weeks late. Four weeks later, the new mother contacts Human Resources with the happy news— and an odd question: why will my store discount card no long work? The answer soon comes from HR: Ma’am, you were fired two weeks ago. On the basis of this story, a complaint was drafted, and this case was born. The mother’s name is Ms. Melissa R. Martin (“Martin” or “Plaintiff’); her employer is Winn-Dixie, Inc. (“Winn-Dixie” or “Defendant”).
At present, however, before the Court is one motion: Defendant’s Motion for Summary Judgment (“MSJ”), (Doc. 31), filed after a motion to dismiss, (Doc. 17), but before this Court partly granted the latter, (Doc. 37).
This Court agrees and disagrees in part with Defendant. As a threshold matter, it rejects Defendant’s arguments that it must set aside and ignore Plaintiffs tardily submitted evidence — a declaration by Mr. Wayne Ivy (“Ivy Declaration”) — pursuant to Rules 26(a)(1) and 37(c)(1) and treat Plaintiffs still extant claims as not properly exhausted. It does' so because both contentions defy the Rules’ clear text, well-established case law, and the relevant documents. It also finds that, bаsed on federal and state discrimination law, Plaintiff has met her minimal burden as to these two discrete claims. More than enough evidence exists to lead a jury to reasonably conclude that Defendant discriminated against Plaintiff due to her pregnancy and has advanced a purely pre-textual justification. While Defendant believes only nearly identical comparators will do, sufficiently close comparators, the PDA’s minimum, can be found. Meanwhile, the descriptions provided of Plaintiffs former post contra-diet its assertions, and its agents have offered contradictory testimony as to whether the physical activity that Plaintiff could not do — lifting, pushing, and pulling up to eighty pounds — was truly an essential function. In contrast, as Plaintiff has failed to allege a sufficient quantum and level of actions by Defendant or its certain agents to support a harassment claim and has not offered the kind of proof necessary to support an IIED claim, this Court must dismiss those claims pursuant to Rule 56. Now, therefore, Plaintiffs claims for discrimination alone remain, as she has satisfied Rule 56’s minimum.
As such, for the reasons more fully explained below, this Court GRANTS and DENIES IN PART the Defendant’s MSJ.
II. FACTUAL BACKGROUND
A. Defendant’s Policies
The purpose of a co-director is to “lead, manage and develop” her (or his) team and the store’s operations. (Doc. 31-4 at 11-12.) The non-exhaustive list of job functions leaves no doubt that the thrust of what the co-director must do is manage operations and recruiting and to delegate as appropriate. (See id.) Although Defendant reserved the right to change this list at its discretion, physical lifting, pushing, and pulling requirements were not designated as “primary” and “essential” at the time of Plaintiffs employment.
Nonetheless, a co-director should be able to carry, push, lift or pull up to eighty (80) pounds for up to one-third of each work day. (Id. at 14). The listed percentage range for this physical activity, however, is between 1% and 33%. (Id.) In fact, a co-director is expected to sit (“frequently,” defined as between 34-66%”) and to stand and walk (“continuously,” defined as between “67-100%”) more often than to lift, push, or carry “up to 80” pounds. (Id.) Interestingly, defendant’s counsel conceded as much during Sutton’s deposition, objecting: “There’s no category of essential physical demands. There’s never, occasionally, frequently, continuously.” (Doc. 31-5 at 9 (emphasis added).) While Sutton seemed to regard such physical tasks as “essential” in a colloquial sense — “You may have just one person open a store and have very little backup. And it would be essential that she be able to perform her duties if she was there by herself,” (id. at 10) — he did not identify lifting, pushing, and pulling as amongst a co-director’s essential “duties” when asked to describe that position’s “essential” duties. Instead, he intoned: “To assist the store director with whatever he needs, in charge of profits, sales, making sure we attain our budgets, helping direct people in the store, setting ads for the upcoming week, just helping to maintain and run the store.” (Doc. 31-5 at 5-6). In contrast, Ms. Myndi Savoy (“Savoy”), the human resources generalist for Winn-Dixie’s Prairieville store, insisted that “unloading the trucks” was a “primary responsibilit[y].” (Doc. 31-6 at 5.) Regardless, the description does not explicitly prohibit co-directors from seeking help or using pallet trucks, jacks, or forklifts to accomplish any heavy lifting. (Doc. 31-4.)
Defendant’s associate handbook (“Handbook”) provides further detail. It states that all Winn-Dixie employees labor “at-will,” employment terminable “by either the [associate or ... [cjompany at any time, for any reason, with or without notice.” (Doc. 31-4 at 20.)
B. Plaintiffs Employment: Pre- and Post-Pregnancy
On December 15, 1995, Defendant hired Plaintiff as a part-time cashier. (Doc. 1-1 at 2; Doc 31-1 at 1; Doc. 38-1 at 2.) Over the next fifteen years, she held various positions at sundry Winn-Dixie stores located in and around Baton Rouge, Louisiana. (Doc. 31-1 at 1.) Eventually, Defendant promoted her to co-director, described as “the second most senior store-level man
On September 4, 2012, Plaintiff “discovered that she was pregnant” and “[ajlmost immediately” or “immediately” informed Defendant via Sutton. (Doc. 1-1 at 3; Doc. 31-1 at 3.) Sometime thereafter, Plaintiffs obstetrician/gyneeologist, Dr. Lewis (“Lewis”), observed the pregnant Plaintiff “performing some type of heavy lifting.” (Doc. 31-1 at 3.) Thereupon, on October 4, 2012, Lewis provided Plaintiff with a note restricting her from lifting no more than ten pounds and working no longer than eight hours. (IcL) On October 5, 2012, Plaintiff submitted this note to and requested a reasonable accommodation from Defendant; once more, Sutton served as the critical conduit. (Id.; Doc. 1-1 at 3.) On that day, Sutton faxed the doctor’s note to Savoy who thereupon sent both to Defendant’s legal department, located in Jacksonville, Florida. (Doc. 31-1 at 3; Doc. 31-5 at 8.) On that same day, presumably after speaking with Savoy, Sutton “advised” Plaintiff that she would “probably” need to “step down,” taking “a part-time position” and a clear “demotion,” and “gave ... [Pjlaintiff an unfavorable annual evaluation.” (Doc. 1-1 at 3; Doc. 31-1 at 4.) At that time, having reviewed her doctor’s restrictions, Sutton attempted to accommodate Plaintiff by advising her “to self-administer” and herself avoid “working over eight hours, mak[ing] sure she left at eight hours[,j and mak[ing] sure she didn’t pick up over 10 pounds.” (Doc. 31-5 at 8.) According to Sutton, this “accommodation” lasted until Plaintiff left.
On October 18, 2012, Sutton advised Martin to request a Leave of Absence (“LOA”) and speak to the store’s human resources department. (Doc. 31-1 at 4; Doc. 1-1 at 3.) Four days later, Plaintiff spoke with Sutton’s own boss, Mr. Edwin Tucker (“Rucker”), who “advised [Pjlaintiff that he was not aware of her situation and would need to contact Mr. Sutton”; he directed Plaintiff to contact Savoy. (Doc. 31-1 at 4.) On or about October 25, 2012, Martin spoke with Savoy. (Doc. 31-1 at 4;
Subsequently, Plaintiff applied for and received leave until January 9, 2013. (Doc. 1-1 at 4; Doc. 31-1 at 5.) She had, however, been told that an extension until April 16, 2013, could later be sought. (Doc. 31-1 at 6.) Plaintiff eventually applied and was approved for short-term disability and long-term disаbility benefits through Winn-Dixie’s third-party provider, effectively extending her leave through April 16, 2013. (Id. at 7.) She also “cashed in two weeks of PTO benefits.” (Id.) In total, she requested leave through May 1, 2013, (id. at 6), though she apparently understood “that once [her] personal leave expired on April 16th, ... her employment was going to end if ... [she] didn’t return to work,” (Doc. 31-3 at 14; see also Doc. 31-1 at 8). Nevertheless, based on the plain text of Plaintiffs formal request for leave, Plaintiff and Defendant knew that she would “need” six weeks of post-birth recovery. (Doc. 31-1 at 7; see also Doc. 31-3 at 15-16.) .
On March 31, 2013, Plaintiff gave birth. (Doc. 1-1 at 4.) Without delivering any explicit notice,
C. Present Action’s Pre-Termination Roots
Though Defendant fired Plaintiff in April 26, 2013, Plaintiff had first met with a lawyer regarding Defendant’s allegedly discriminatory conduct in November 2012. (Doc. 31-1 at 9.) On January 9, 2013, Plaintiff charged Defendant with pregnancy discrimination by first filing, as required, an intake questionnaire for the Louisiana Commission on Human Rights (“LCHR”) and Equal Employment Opportunity Commission (“EEOC”).
A. Motions Filed
On September 24, 2013, forty-three days prior to the mailing date affixed to the Notice, (id.), Plaintiff commenced a suit for sexual discrimination, harassment, and retaliation, among other claims, in the Nineteenth Judicial District Court for the Parish of Baton Rouge, Louisiana, on September 24, 2013. (Doc. 31-1 at 10; Doc. 1-1 at 2, 6.) Pursuant to various subsections of the United States Code’s twenty-eighth title,
B. Defendant’s Arguments: Overview
Setting aside the contentions related to claims already dismissed, (Doc. 37), Defendant’s papers present a four-part argument for why no genuine issue of material facts remains as to Plaintiffs discrimination, harassment, and tort claims.
Initially, Defendant argues for the exclusion of the Ivy Declaration, appended to Plaintiffs First Opposition. (Doc. 38-4 at 11-13.) It offers two reasons: “Mr. Ivy was not previously disclosed as a witness, within applicable pretrial deadlines,” as required by Rule 26(a)(1), and the Declaration “is inadmissible because it is not based on personal knowledge, includes hearsay, and/or amounts to inadmissible lay opinion.” (Doc. 44 at 3; see also, e.g., Doc. 48 at 2-4; Doc. 58 at 3-11.) Defendant specifically rejects Plaintiffs defense of the Ivy Declaration as an impeachment tool, as it is both substantive and directed at no witness. (Doc. 44 at 3-5.) According to Defendant, Plaintiffs stated justification — she realized Ivy’s value upon the MSJ’s filing — is belied by Ivy’s own admission that he spoke to counsel “a couple months” before the Declaration’s execution, and Defendant seemingly questions the veracity of this declaration. (Doc. 58 at 5-7.) More specifically, it first points out that the First Opposition was filed on March 25, 2013, the same date of the Ivy Declaration, (Doc. 38; Doc. 38-4), and the MSJ was docketed on February 27, 2013, (Doc. 31). Emphasizing this twenty-six day gap, Defendant argues that the assertion of Plaintiffs counsel — -“Plaintiffs counsel did not learn of Mr. Ivy until Defendant’s
Defendant also insists that harm has resulted from the Ivy’s late disclosure, for even a minor delay may upset trial preparation, it has spent time and effort to litigate this very issue, and it is unable to develop his testimony. (Doc. 44 at 8-9.) “Admission of the [declaration [by Plaintiffs counsel] at this point deprives Defendant the opportunity to test ... [her] account [of the Ivy Declaration] under cross-examination.” (Doc. 58 at 6.) Harmlessness, it adds, was Plaintiffs obligation to prove. (Doc. 44 at 9; see also Doc. 58 at 8.) It concludes by deriding the Ivy Declaration as being “neutral” only as to Plaintiffs accommodation claim, (Doc. 58 at 9), echoing its earlier argument that the Ivy Declaration “does nothing to further Martin’s case,” (Doc. 44 at 6). Its last filing summarizes its core assault on the Ivy Declaration: “In the exercise of reasonable diligence, Plaintiff had numerous opportunities to disclose that Ivy was a potential witness,” moments it did not seize, and allowance of the Ivy Declaration now “effectively forces Winn-Dixie to pay the price of Plaintiffs professed lack of recall,” with “the only evidence regarding that late disclosure completely and unquestionably controverting] Plaintiffs account.” (Doc. 58 at 11.)
Second, Defendant attacks the legal viability of Plaintiffs claims under Title VII and its Louisiana parallel. It does so in two ways. Primarily, “Plaintiff was not entitled to [an] accommodation,” it writes, “because she was not ‘qualified’ for her Co-Director position, due to the ten-pound lifting restriction imposed by her physician”; much stress is paid to the position’s written job description. (Doc. 44 at 5; see also Doc. 31-2 at 7-12.) However, “[e]ven assuming Plaintiff was entitled to accommodation, summary judgment is still appropriate because Plaintiff cannot demonstrate, through competent evidence, that a similarly situated non-pregnant employee received more favorable treatment.” (Doc. 44 at 5; see also Doc. 31-2 at 10-12.) In the course of this argument, Defendant raises doubt about the validity of Plaintiffs various comparators.
Third, Defendant denies that Plaintiffs harassment claim can survive. So far, Plaintiff has only offered up “one instance of alleged harassment”: “Sutton ... offered her candy with the knowledge that she was on insulin-resistance medication.” (Doc. 44 at 8; see also Doc. 31-2 at 16-17.) Subsequently, in response to Plaintiffs pri- or filing, Defendant concedes that a second has been offered: Sutton, allegedly, explicitly denied any person could be both pregnant and a co-director. (Doc. 44 at. 8.) Still, in Defendant’s judgment, two stray remarks over a period of years are insufficient as a matter of law to support Plain
Finally, Defendant deals with Plaintiffs state IIED claim. Generally, it points out that its agents’ conduct, even if colored in the worst of lights, was not so outrageous and extreme as to offend decency itself, the high standard required under Louisiana law for the Plaintiff to prevail on her final claim for intentional infliction of emotional distress. (Doc. 44 at 8-9; see also Doc. 31-2 at 17-19.) To Defendant, it matters greatly that Plaintiff “has never sought treatment of any kind for her alleged distress,” undercutting the alleged extremity of her distress. (Doc. 44 at 8-9 (emphasis in the original).) With no such evidence presented, the two comments made by Sutton are “grossly insufficient to sustain [her] intentional-infliction claim.” (Id. at 9.)
C. Plaintiffs Side: Overview
Attaching twelve documents to its First Opposition,
IV. DISCUSSION: APPLICABLE STANDARDS AND LAWS
A. Rule 56 Standard
A method for “promptly disposing” of meritless actions, Fed. R. Civ. P. 56 advisory committee’s note (1937), Rule 56(a) permits a party to “move for summary judg
B. Rules’ Disclosure Requirements
Since its adoption, Rule 26(a)(1) has provided:
[A] party must, without awaiting a discovery request, provide to the other parties ... the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.
Fed. R. Civ. P. 26(a)(1)(i); Standley v. Edmonds-Leach,
In a seminal case focused upon the classification of surveillance video evidence, the Fifth Circuit construed this provision and offered a particular denotation of “impeachment evidence.” Having described substantive evidence’s distinguishing criteria, the court proceeded to
Yet another rule authorizes punishment for a party’s failure to comply with Rule 26(a)(1). Fed. R. Crv. P. 37(c)(1). In pertinent part, Rule 37(c)(1) reads:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Id., Musser v. Gentiva Health Servs.,356 F.3d 751 , 758 (7th Cir.2004) (quoting rule). In the making of this determination, courts consider numerous factors, including (1) “the surprise or prejudice to the blameless party,” (2) “the ability of the offender to cure any resulting prejudice,” (3) “the amount of disruption to the trial that would result from permitting the use of the evidence,” and (4) “the bad faith involved in not producing the evidence at an earlier date.” Spearman Indus. v. St. Paul Fire & Marine Ins. Co.,138 F.Supp.2d 1088 , 1094 (N.D.Ill.2001); accord, e.g., Lanard Toys, Ltd. v. Novelty, Inc.,375 Fed.Appx. 705 , 713 (9th Cir.2010) (citing to David v. Caterpillar, Inc.,324 F.3d 851 , 857 (7th Cir.2003)). Many courts have deemed Rule 37(c)(l)’s exclusionary sanction as “mandatory.” Falconer v. Penn Mar., Inc.,421 F.Supp.2d 190 , 207 (D.Me.2006).
In so doing, these courts — and Defendant here, (Doc. 44 at 4; Doc. 58 at 5) — have overlooked the safety valve written into Rule 37(c)(1). Its second sentence explicitly allows a court to substitute its exclusory sanction with any “other appropriate” punishments. FED. R. CIV. P. 37(c)(1) (referencing the sanctions listed in Rule 37(2)(A) as nonexclusive possibilities); Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico,
C. Applicable Substantive Law: Pregnancy Discrimination and Harassment under Federal Law
Enacted in 1978, the PDA added new language to the definitions subsection of Title VII, the part of the Civil Rights Act of 1964 that forbids certain forms of discrimination by covered employers. Young v. UPS, — U.S. -,
D. Applicable Substantive Law: Discrimination, Harassment, and Distress under Louisiana Law
Echoing Title VII, Louisiana has declared it unlawful for “an employer to intentionally discriminate against an individual with respect to his compensation or his terms, conditions, or privileges of employment, because of the individual’s sex.” La. R.S. § 23:332(A). As a consequence of these laws’ shared scope, as Defendant notes, (Doc. 31-2 at 2 n.2), “Louisiana courts have looked to federal jurisprudence to interpret Louisiana discrimination laws,” King v. Phelps Dunbar, L.L.P.,
In contrast, Plaintiffs IIED claim arises entirely from state tort law. As the Supreme Court of Louisiana has explained,
[I]n order to recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.
White v. Monsanto Co.,
unusually strict standard. Labove,
V. APPLICATION
A. Preliminary Matters
1. Ivy Declaration
Defendant’s assault on the Ivy Declaration can pass no muster for any number of reasons, each independently sufficient.
First, the Ivy Declaration arguably impeaches Defendant’s factual
Alternatively, regardless of its classification as impeachment, substantive, or hybrid evidence,
First, as Defendant seemingly recognizes, (Doc. 58 at 8-11), much of the Ivy Declaration divulges facts or factual allegations which supplement Plaintiffs prior points and which were readily within Defendant’s purview. Ivy, after all, only repeats and further substantiates the allegations that Plaintiff has made in her complaint and which Defendant has already attacked in the MSJ. It cannot be truly surprised that Plaintiff found someone to
In this regard, this Court finds Chiasson instructive. There, plaintiff was wholly “unaware that any recorded evidence or statements existed,” Lucas v. City of Shelby,
In shotgun fashion, Defendant attacks the Ivy Declaration for other reasons as well, including hearsay and lay opinion. (Doc. 44 at 3.) However, Ivy’s opinions and alleged facts appear based on his personal experience as a director and co-director, which reasonably include supervision of co-director and cashier activities as well as accommodation practices and policies, and is offered against Defendant by the latter’s agent. Reasonably, if not indisputably, either fact arguably places Ivy’s words outside the hearsay prohibitions in the Federal Rules of Evidence. Fed. R. Evid. 801(d)(2)(A), 602; see also, e.g., In re Cornfield,
Based on the foregoing reasons, this Court will consider the Ivy Declaration to the extent that it buttresses the factual allegations previously made by Plaintiff in her complaint and other filings.
2. Exhaustion
(a) Parties’ Relevant Arguments
Winn-Dixie argues that Martin has improperly brought the related state and federal law claims because she failed to administratively exhaust them with the EEOC and LCHR. To support this assertion, Winn-Dixie claims that although the EEOC charge was brought within the statutorily prescribed time, it did not allege she was subject to harassment or a hostile work environment. (Doc. 31-2 at 14.) On the issue of claim exhaustion, Martin attempts to rebut Winn-Dixie’s assertion by stating that the court had already dismissed the discharge and retaliation claims because they had not been exhausted, and purposefully excluded the harassment and discrimination claims. (Doc. 38-1 at 1.) Plaintiff does not respond to Winn-Dixie’s assertion that she did not properly articulate sexual harassment and the presence of a hostile work environment in her EEOC charge.
(b) Analysis
The LCHR and EEOC have a work-sharing agreement whereby they operate as each other’s agents “for the purpose of receiving and drafting charges.”
[W]hen a claimant submits an EEOC charge and, pursuant to a work-sharing agreement, the EEOC accepts it on behalf of a deferral state, the claimant is deemed to have initially instituted proceedings with the state agency and the 300-day period is triggered.
Conner v. La. Dep’t of Health & Hosps.,
While no formal LEDL charge was filed or proceeding adopted, -an EEOC charge was evidently received on May 1, 2013, about 184 days after the latest indicated discrimination event. (Dоc. 17-2.) By law, this act effected a simultaneous filling with the LCHR. On its face, this filing was made before Plaintiffs termination on April 26, 2013, and it readily meets the 300-day requirement for Louisiana. Juxtaposition with the termination date is irrelevant as to the discrimination, which occurred between “10-15-2012” and “10-30-2012.” {Id.) Numerically, therefore, Plaintiff has met the time requirements for administratively exhausting her claims.
Winn-Dixie, however, argues more. Specifically, it contends that even if the time requirement is met, Martin should not be able to sue on sexual discrimination because she failed to properly articulate it in her charges, as Martin only brought up the lack of reasonable accommodation and dual-option of an LOA or demotion to cashier, thereby failing to suitably articulate her sexual harassment and hostile environment claims. (Doc. 31-2 at 4.) As Defendant rightly emphasizes, “Title VII requires employees to exhaust their administrative remedies before seeking judicial relief.” Stone v. La. Dep’t of Revenue,
First, the Plaintiff did more than Defendant believes. Looking at the plain forms submitted, Martin checked the box and
Second, Defendant relies on an unduly broad construction -of Stone. In Stone, the Plaintiff filed an EEOC charge prior to her resignation, alleging, Title VII racial discrimination. The Fifth Circuit affirmed the district court’s dismissal of her suit based on an EEOC charge that fail[ed] to identify “facts ... that reasonably encompassed] her later claims for constructive discharge, disparate impact or disparate treatment.” Stone,
An employеe may file a lawsuit ‘not only upon the specific complaints made by the employee’s initial EEOC charge, but also upon any kind of discrimination like or related to the charge’s allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.’
Stone,
Third, interests of justice and efficiency, the virtues enthroned in Rule 1, strongly favor these claims’ adjudication. A “complainant may [only] amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint, and new complaints must be filed within 300 days of the alleged discriminatory acts. EEOC, Complaint Prooessing Procedures (emphasis added), available at http://www.eeoc.gov/eeoc/publications/
Unwilling to pay heed to formality for its own sake, this Court does not find any merit in Defendant’s exhaustion argument.
B. PDA Claim
As Plaintiff recognizes, Young essentially affirmed a preexisting standard for a plaintiff alleging “that the denial of an accommodation constituted disparate treatment.” Young,
1. Parties’ Relevant Arguments: Disputing Two Elements of Plaintiffs Pri-mа Facie Case
Defendant’s attack on Plaintiffs Title VII case is threefold. First, Defendant claims: “[P]laintiff has not presented any direct evidence of discrimination.” (Doc. 31-2 at 7.) Next, Winn-Dixie argues that Plaintiff was not qualified for her post. (Id. at 8.) Third, it insists that Plaintiff cannot show she was denied a reasonable accommodation that was offered to other similarly situated persons. (Id. at 10-11; see also Doc. 44 at 5-7.) In other words, Defendant concedes that Plaintiff has articulated the first two elements — her membership in a protected class and her request for an accommodation — of the PDA’s required prima facie case.
2. Plaintiffs Sufficient Showing: Direct Evidence, Accommodation Requirement, Comparators, and Pretext
Subject to the constraints imposed by Rule 56, Defendant has not credibly undermined “the mosaic of circumstantial evidence from which a reasonable juror could infer intentional discrimination” under the disparate approach and in violation of the PDA. Serednyj,
First, Plaintiff does offer up some direct evidence of discrimination. The undisputed (for purposes of summary judgment)
Second, Defendant has misconstrued the third step of the McDonnell Douglas test, which only requires that the Plaintiff prove the Defendant-mover “did not accommodate” her, not whether it was reasonable not to do so. Young,
Third, Plaintiffs comparators could lead a reasonable factfinder to find that Defendant “did accommodate others similar in their ability or inability to work,” Young,
Two problems characterize Defendant’s attack on Plaintiffs next comparator, Mr. Drew Robertson (“Robertson”). First, Winn-Dixie argues that Martin’s deposition concerning Robertson is “unsupported hearsay.” (Doc. 31-2 at 10.) Indeed, all of Martin’s knowledge of these circumstances is based on what her friend, the Burbank store floral manager told her, which she allegedly heard from Robertson. (Doc. 31-3 at 21-22.) Thus, the statements appear to be classic hearsay within hearsay and therefore, must conform to hearsay exceptions to be admissible. Fed. R. Evid. 801(d)(2). This argument, however, fails. Under 801(d)(2)(D), neither Robertson’s alleged statement to the florist nor her statement to Martin are hearsay since (1) Robertson and the florist were employees of Winn-Dixie at the time the statements were made, (2) as individuals working in the same store, Robertson and the florist had a work relationship that clearly falls within the scope of the subject spoken of, and (3) the statements equally regard Robertson’s alleged accommodation which is offered to refute Winn-Dixie’s statements
More substantively, Robertson is a col-orable, if not perfect, comparator. In contesting this issue, i.e. the merits of Martin’s use of Robertson as a comparator, Winn-Dixie argues that Robertson is not similar enough to Martin since he did not receive any preferential treatment under “nearly identical circumstances.” (Doc. 31-2 at 10 (citing Luna v. Corrections Corp. of Am.,
The employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories. And, critically, the plaintiffs conduct that drew the adverse employment decision must have been “nearly identical” to that of the proffered comparator who allegedly drew dissimilar employment decisions. If the “difference between the plaintiffs conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer,” the employees are not similarly situated for the purposes of employment discrimination analysis.
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir.2009) (emphasis added).
Fourth, the co-director description, as described and characterized, undercuts the Defendant’s stated reason for Plaintiffs termination: that accommodating Martin would have placed an undue burden on the Prairieville store because of the “importance of her ability to lift items” as co-director, “the length of the restrictions ... and the time of year that she was requesting the accommodation.” (Doc. 31-2 at 11; Doc. 44 at 6.) Naturally, “[i]n the context of a discriminatiоn claim, in determining the essential functions of a position, a court may consider, but is not limited to, evidence of the employer’s judgment as to which functions are essential, and the written job description in effect before the employee interviewed for the position.” Based purely on the job description given by Defendant, one can conjecture that a reasonable jury would find against Defendant, deeming its' stated reason for not fully accommodating Plaintiff like it did others with comparable physical limitations to be purely and forbidden pretext. As noted above, being able to personally and physically lift items was never designated as an “essential” or “primary” important aspect of the co-director position. (Doc. 31-4 at 11-13.) Nothing in the Handbook or in Winn-Dixie’s testimony that precludes co-directors from asking for help to lift up to eighty (80) pounds or from their using mechanical aides to do so. (Id.) Just as noticeably, a co-director is only expected to lift, push, or pull up to eighty pounds between 1% and 33% of his or her shift and is expected to sit (“frequently,” defined as between 34-66%”) and to stand and walk (“continuously,” defined as between “67-100%”) far more frequently (and regularly). (Id.) Defendant’s counsel, moreover, seemingly conceded as much during Sutton’s deposition, objecting: “There’s no category of essential physical demands. There’s never, occasionally, frequently, continuously.” (Doc. 31-5 at 9 (emphasis added).) True, Sutton seemed to regard such physical tasks as “essential” in one sense — “You may have just one person open a store and have very little backup. And it would be essential that she be able to perform her duties if she was there by herself,” (id. at 10) — he did not identify lifting, pushing, and pulling as amongst а co-director’s essential “duties” when asked to describe that position’s “essential” duties. Instead, he intoned: “To assist the store director with whatever he needs, in
Finally, Defendant’s offer of a demotion could undercut their stated reason’s believability. Though willing to demote her to cashier over the same time period, Defendant never does explain how that position would involve lifting less. (Doc. 31-4 at 55.) Indeed, cashier is a position that may involve lifting requirements above Martin’s stated restrictions, as the Ivy Declaration expressly states. (Doc. 38-4 at 13 (stating cashier lifting requirements are in excess of 10 pounds).) The evidence shows only that the Prairieville store may have been inconvenienced during the Thanksgiving/Christmas holiday season where other employees whose primary job it was to stock shelves and put together displays would not have received the generous help Martin had apparently been giving them. In addition, accepting Plaintiffs pleaded evidence as true, it does seem like other stores have accommodated other co-director with similar physical handicaps.
3. Conclusion
For these reasons, Martin defeats summary judgment regarding her prima facie case of pregnancy discrimination. The evidence shows that she is an undisputed member of a protected class, who sought and was denied accommodation. Meanwhile, genuine issues can be discerned as to the existence of deferential treatment in light of Robertson and Ivy as Martin’s reasonable, if not indisputable, comparators
C. Louisiana Discrimination Claim
Because Louisiana law employs an identical standard for adjudicating pregnancy discrimination claims, see swpra Part IV.D, and because this Court has found the record precludes a granting of summary judgment as to Plaintiffs Title VII claims, see supra Part V.B.2-3, this Court will leave Plaintiffs state law discrimination claims for a jury’s review.
D. Harassment Claims
Two remarks form the universe entire of Plaintiffs harassment claims under both
While the latter claim can constitute circumstantial evidence of discrimination, Title VII harassment claims are analyzed differently than Title VTI harassment ones. As noted above, see supra Part IV.C, an environment’s hostility is measured by the totality of the circumstances, Harris v. Forklift Systems, Inc.,
Here, Sutton’s pregnancy-related comment is the only one by an agent of Winn-Dixie that Martin alleges is sexually discriminatory. Wedded to the totality test, courts have simply not found such off hand remarks to be protected under Title VII; far more has long been required. Lauderdale v. Tex. Dep’t of Crim. Justice,
E, IIEP Claim
As to Plaintiffs state law IIED claim, Defendant argues that (1) there is no evidence of their intent to inflict severe emotional distress or knowledge that such would result, (2) there is no evidence of severe distress and, (3) even assuming discriminatory conduct occurred, it did not rise to the level of outrageousness, as a matter of law. (Doc. 31-2 at 17.) Martin seems to respond that Winn-Dixie knew or should have known their actions would cause her emotional distress since (1) they forced her into leave, (2) reduced her income (via requirement of FMLA leave and disability), and (3) obviously created uncertainty regarding her then long-terms good standing with the company. (Doc. 38-1 at 18.) She also argues that she did suffer emotional distress because “she was pregnant, under financial distress, and extremely worried about losing her health insurance,” which resulted in drug treatment for high blood pressure. (Id.) Finally, Martin avers that reasonable jurors could conclude Winn-Dixie’s requirement for her
Under Louisiana law, conduct rises to the level of outrageousness, only where it “go[es] beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community,” and “[l]iability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, .or other trivialities” or “where the actor has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional stress.” White,
Applying this law, Plaintiffs claim fails Rule 56’s test for two reasons.
First, however insensitive Sutton and Defendant may seem, it was Martin who first brought her pregnancy to WinnDixie’s attention, and only within a month of finding out. Nevertheless, she, as a reasonable woman, might agreed to take her OB/GYN’s recommendation to adhere to work-hour and lifting restrictions. In many ways, Defendant’s actions were run of the mill. Presented with restrictions which Winn-Dixie argues necessarily disqualified Plaintiff as a co-director, Defendant allowed her to take and extend leave and warned her of the consequences of her failure to take a demotion — termination in the ease she is replaced before she returned. (Doc. 31-4 at 45.) In these circumstances, courts have declined to find conduct akin to Defendant’s as outrageous even where the employer fired the Plaintiff just before or even the day of delivery of her child. Pate v. Pontchartrain Partners, LLC, No. 13-6366,
Even assuming Defendant’s conduct was outrageous and extreme, Plaintiff has testified that she felt horrible, humiliated, and upset, but she has not shown that “a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case,” Aronzon v. Sw. Airlines, No. 03-394,
VI CONCLUSION
In accordance with Rule 56, courts must isolate and dispose of factually unsupport
Accordingly, for the foregoing reasons, this Court DENIES Defendant’s MSJ as to Plaintiffs discrimination claims under federal and state law and GRANTS Defendant’s MSJ as to Plaintiffs harassment and IIED claims.
Notes
. Although the original filing lists multiple defendants, (Doc. 1), "Winn-Dixie Montgomery LLC” is the sole effective defendant at present, (Doc. 31). The shortened term "Winn-Dixie” or “Winn Dixie,” and the singular Defendant, will therefore be used throughout this opinion.
. This gap explains why the MSJ delves into arguments already disposed, (Doc. 31-2), as Defendant later notes, (Doc. 44 at 1-2). Hence, in this opinion, this Court deals solely with those arguments unaffected by its March order.
.In this opinion, any and all references to “Rule” or "Rules” are to the Federal Rules of Civil Procedure unless otherwise noted.
. The Court here utilizes the description of the “co-director” position provided by Defendant and Plaintiff in their papers.
. Lexicographically, to "manage” and "address” does not necessarily mean that a co-
. According to her testimony, Martin had neither signed nor seen the Handbook included as evidence. (Doc. 31-3 at 8.)
. While Plaintiff disagrees with this description — "Ms. Martin had a stellar employment record with no write-ups or negative evaluations,” "a highly regarded employee during her seventeen-year career with Winn-Dixie,” (Doc. 38-1 at 3, 8) — this Court here summarizes the uncontested bare minimum and leaves disputed matters untouched. Questions, it would seem, do exist regarding Plaintiff's actual performance. For example, while Sutton claims to have orally communicated a decidedly more negative opinion of her work ethic to Plaintiff directly, his words alone support this story. (Doc. 31-5 at 6.) Perhaps to avoid this very problem, Winn-Divie policy now requires witnesses be present for any such discussions. (Id.)
. The consistency and reality of this accommodation is impossible to gauge, for Plaintiff took a preplanned vacation soon after her pregnancy's disclosure, (Doc. 31-1 at 4; Doc. 31-5 at 10; Doc. 38-1 at 3).
. Whether or not Defendant was required to do so is legally and factually irrelevant.
. LCHR handles complaints of employment discrimination based on race, color, religion, sex, disability, age, sickle cell trait, pregnancy, child birth and related medical conditions. L.A. R.S. § 51:2231 (C). When Plaintiff filed charges with LCHR, she simultaneously filed a charge with the EEOC. See U.S. EEOC, Filing a Charge of Discrimination, available at http://www.eeoc.gov/employees/charge.cfm.
. Specifically, Plaintiff relied on 28 U.S.C. §§ 1331, 1367, 1441, and 1446. (Doc. 1-1 at ' 1.)
. These motions were filed on April 13, April 22, May 5, July 30, and July 31, 2015, 'respectively. (Doc. 41, 44, 48, 55, 58.)
. As explained later, see infra Part IV.C, "comparators” refers to the common use of similarly situated employees who do not belong to a plaintiff's protected class in discrimination cases so as to prove a defendant’s asserted nondiscriminatory reason is mere pretext. This method has been described as "the most common” means of “proving pretext” in employment discrimination cases. Emma Reece Denny, Mo' Claim Mo’ Problems: How Courts Ignore Multiple Claimants in Employment Discrimination Litigation, 30 Law & Ineq. 339, 366 (2012).
. A number were already offered by Defendant, including Plaintiffs deposition, (Doc. 31-3), co-director job description (Doc. 31-4), LCHR questionnaire (Doc. 31-4 at 33-39), FMLA application form (Doc. 31-4 at 51-53), Notice of Right to Sue, (Doc. 31-4 at 91), and the depositions of Sutton, Savoy, and Tucker (Doc. 31-5, 31-6, 31-7), and incorporated by reference in the First Opposition's body, (Doc. 38 at 1).
. Some courts appear to read the "impeachment” exception in Rule 26(a)(l)(i) more narrowly. Glacier Land Co, L.L.C. v. Claudia Klawe Assocs., L.L.C.,
. Case law evidences some discord over this precise issue. The source of this confusion appears to be the advisory committee’s note. When the Rule was first added in 1993, the committee described the exclusionary sanction as "automatic.” Fed. R. Civ. P. 37 advisory committee's note (1993 amend.); Yeti by Molly, Ltd. v. Deckers Outdoor Corp.,
. Thus, a substantial overlap exists among the various employment discrimination statutes. See John v. NCI Bldg. Sys., Inc.,
. Of course, this conclusion applies only as to the declaration's usefulness for purposes of this motion's adjudicatiоn. Its admission at trial will implicate wholly other and unrelated issues and concerns.
. Much evidence, arguably including the Ivy Declaration, can be classified as both impeachment and substantive evidence. Cf. Behler v. Hanlon,
. The Court feels bound to here touch upon Defendant’s remark that harm exists simply because it had to file supplemental briefing. (Doc. 58 at 8.) By that standard, harm must always be found when a complaint is filed, and the mere obligation to respond to another’s briefing amounts to a kind of harm. Properly read, the Rule’s ’’harm” refers to more than the time and expense associated with responding to a motion.
. Defendant deposed Ivy on June 23, 2015, (Do. 58-1), and trial is scheduled for November 9, 2015, (Doc. 49).
.This Court deems this statement's existence undisputed at this time and for Rule 56’s limited ends since Martin repeatedly brings it up, (Doc. 38-1 at 3; Doc. 38-2 ¶¶ 77, 81, 86), and Winn-Dixie admits that it might be true, (Doc. 44 at 8).
. Other disputed direct evidence, which too must be construed in Plaintiffs favor, will be addressed in .the accommodation discussion.
. Winn-Dixie also relies upon Griffin v. UPS,
. Defendant insists that Ms. Vidrine simply did not present any type of work restriction "prior to that time,” presumably her leave. (Doc. 31-1 at 13.) It does not say that Ms. Vidrine never asked for an accommodation, nor that she was not accommodated after the leave, as would have to be shown at present for Ms. Vidrine to become an inapposite comparator.
. Both Mr. Robertson and Ms. Flatau are listed in Plaintiff's initial 26(a) disclosures. (Doc. 31-4.)
. Martin apparently gives up on Robertson and focuses on Lemoine and Ivy. (Doc. 38-1 at 11.)
. Defendant’s strongest argument is against Plaintiff’s final comparator, Mr. Jeremy Lem-oine. Defendant argues the latter is an improper comparator since (1) he worked at a different store, (2) which Martin fails to show the staffing needs of were similar to the store she worked at, or (2) since there is a lack of evidence that the operational needs for the time of year were similar to her situation. ( Doc. 31-2 at 11; Doc. 44 at 6.) In support of their assertion, Winn-Dixie points to the fact that Lemoine was "placed on light duty with standing, walking, and lifting restrictions for two months beginning in mid-June 2012." (Doc. 31-2 at 11.) In contrast, Martin asserts that Lemoine is a proper comparator since (1) he was a store manager, (2) at one of the busiest stores in the Baton Rouge area (Central), and (3) was severely injured in a car accident, yet accommodated in a wheelchair in his position, after returning from a leave of absence. Despite these contentions, even taking the evidence and reasonable inferences in favor of Plaintiff, Lemoine’s situation is not nearly identical as he was under medical restrictions for less than half the time Martin was. And even though Central might have been a busy store, it is further away and there is no evidence of its staffing or operations. Additionally, Lemoine was able to return to work right after his short leave of absence, but Martin extended her leave. In defeating this one comparator, however, Defendant has not defeated all of Plaintiff’s evidence.
. Although Winn-Dixie generally disputes that “neither Mr. Sutton, Ms. Savoy nor anyone else at Winn-Dixie made any inappropriate pregnancy- or gender-based comments,’’ (Doc. 31-1 ¶ 86), they do not dispute that Sutton made this particular comment.
. The first, technically, does not deal with sexual discrimination of any kind. Nonetheless, it is summarized here so as to highlight the paucity of Plaintiff's factual support.