HICKS, District Judge.
This matter is before the Court on Office Depot's Motion for Summary Judgment [Doc. 36] pursuant to Fed.R.Civ.P. Rule 56(b). Defendant moves for an order dismissing all of Plaintiff's claims with prejudice. Irene Mayes, Plaintiff in this matter, opposes the motion on the basis that there exists a genuine dispute of material fact and that Office Depot is not entitled to judgment as a matter of law. For the following reasons, the Court hereby GRANTS Office Depot's Motion for Summary Judgment [Doc. 36] and DISMISSES Plaintiff's Amended Complaint [Doc. 2] with prejudice.
On July 3, 2001, Plaintiff Mayes filed a complaint [Doc. 1] against her former employer, Office Depot, for discrimination for failure to promote in violation of 42 U.S.C. § 1981 and Louisiana Revised Statute 23:301 et seq., Louisiana Civil Code Article 2315, intentional infliction of emotional distress, negligent supervision, breach of contract, and state and federal constitutional claims. The complaint was amended [Doc. 2] to include charges of discrimination under Title VII of the Civil Rights Act of 1964 and 1991, as amended (hereinafter "Title VII"), the Age Discrimination in Employment Act (hereinafter, "ADEA"), the Equal Pay Act; and the Louisiana Civil Code 2320. Mayes originally named two additional defendants, but when the case was dismissed for failure to prosecute, Plaintiff obtained reinstatement of the case only as to Office Depot. [Doc. 4, 7].
Defendant Office Depot moved for dismissal of Mayes' ADEA and state law claims for failure to state a claim. [Doc. 11]. Thereafter, the Court dismissed Plaintiff's state law Article 2315 claim to the extent that it is inconsistent with Gluck v. Casino America, 20 F.Supp.2d 991 (W.D.La.1998) and her claims that are based solely on state law negligence, and declared that no state or federal constitutional law claims were plead. [Doc. 23]. The following remaining causes of action before this Court are addressed by Office Depot's Motion for Summary Judgment: discrimination based on race, sex, and age in violation of Title VII, the ADEA, 42 U.S.C. § 1981, and Louisiana's anti-discrimination law; violation of the Equal Pay Act; intentional infliction of emotional distress; and breach of contract.
I. PLAINTIFF'S EMPLOYMENT HISTORY
Plaintiff, Irene Mayes, began working at the Office Depot location on Jewella Avenue in Shreveport in 1992. Mayes Dep., p. 222. Plaintiff's date of birth is May 10, 1954, so she was approximately 38 years old when she was hired by Office Depot in 1992. Id., pp. 15, 62. Plaintiff worked under the supervision of several store managers and district managers over the course of her employment. Id., pp. 71-76. Lori Oswalt was Plaintiff's store manager during the last years of Plaintiff's employment and remained in that position until just before Plaintiff's resignation. Mayes Dep., p. 75; Oswalt Aff., ¶ 1. Tim Green
Plaintiff began work as a part-time cashier, was promoted to lead cashier within a few months and was subsequently promoted to be one of the store's customer service managers in 1993. Mayes Dep., pp. 62-63. For several months at the end of 1999, Plaintiff ceased to perform the duties of customer service manager (retaining that title however) and worked in a newly-created "networking" position. Id., pp. 84-85. When the networking position ended, Plaintiff resumed her duties as a customer service manager. Id.
In February of 2000, Plaintiff participated in a sales transaction which raised questions in Mr. Green's mind about Plaintiff's business judgment. Green Dep., pp. 86-87; Mayes Dep., p. 145. Ms. Oswalt also expressed that Plaintiff's involvement in that transaction represented a "bad judgment call." Id., p. 266. Mayes herself stated: "I made a bad judgment call. I should not have participated." Id., p. 151. At the conclusion of the company's investigation of that transaction, Plaintiff was counseled for her conduct. Id., p. 151.
Though Plaintiff also was permitted to perform some assistant manager remerchandizing duties, Plaintiff continued to be employed as a customer service manager until she resigned from Office Depot on July 3, 2000. Mayes Dep., pp. 64, 228. In July of 2000, Plaintiff submitted a resignation letter to Office Depot. Mr. Green requested that she reconsider her resignation, but Mayes rejected Mr. Green's request and stopped working at Office Depot on July 6, 2000. Id., p. 24. She began working at her new job, which she obtained prior to resigning from Office Depot, on July 10, 2000. Id., p. 24.
II. THE ALLEGED DISCRIMINATORY ACTIONS
Plaintiff filed the Complaint initiating this proceeding on July 3, 2001. [Doc. 1]. In the EEOC Charge and in the instant Complaint, Mayes alleges that she was discriminated against when Office Depot promoted five individuals to assistant manager instead of her. EEOC Charge of Discrimination, Amended Complaint [Doc. 2].
Plaintiff wanted to progress farther than customer service manager and communicated her desire to become an assistant manager to many other Office Depot employees, including Ms. Oswalt and Mr. Green. Mayes Dep., pp. 84, 296. To obtain a promotion to the position of assistant manager in 1999 and 2000, it was not necessary to complete any formal application process. Green Aff., ¶ 3. Though there does not seem to have been written criteria, Office Depot claims that promotional decisions were based on knowledge of an internal candidate's aptitude, gained through observation of the candidate and interaction with the candidate, education and previous experience.
Mayes felt that she should have been promoted to the assistant manager position rather than the following individuals: David Mitcham, Chris Shadrix, Denise Cashion, Michael Shane Cheatham, and Ron Cheatham. EEOC Charge of Discrimination, Amended Complaint [Doc. 2]. David Mitcham (white male, date of birth not given) was promoted to assistant manager before Tim Green became district manager in 1998. Mayes Dep., pp. 180, 196. Chris Shadrix (white male, born March 15, 1971) was promoted to assistant manager of the Jewella Avenue store on January 30, 2000. Green Aff., ¶ 7. Denise Cashion (white female, born September 3, 1959) was promoted to assistant manager of the Bossier City store on February 27, 2000. Id., ¶ 7. Michael Shane Cheatham (white male, born April 3, 1975) was rehired into the position of assistant manager of the Bossier City store in late February, 2000. Green Dep., pp. 67, 161-62; Green Aff., ¶ 9. Ron Cheatham (white male, born November 24, 1968) was hired as an assistant manager for the Office Depot store on 70th Street in Shreveport on September 4, 2000, Green Aff., ¶ 10.
Plaintiff was not selected for any of these assistant manager positions. Mr. Green stated that though he "encouraged her in things that [he] thought she should do," he did not believe Plaintiff possessed the skills necessary to become an assistant manager. Green Dep., pp. 7-8,108. Ms. Oswalt also encouraged Plaintiff to pursue her desires to advance within the company. Oswalt Aff., ¶¶ 4, 6. However, Ms. Oswalt did not recommend to her supervisor, Mr. Green, that Plaintiff be promoted to the position of assistant manager. Green Dep., pp. 31-37, 56; Oswalt Aff., ¶ 5. Plaintiff admits she was told by Ms. Oswalt that it was necessary to complete GOALS
Mr. Green's stated reason for not promoting Plaintiff to assistant manager was that he did not see Mayes fulfilling all of the necessary management competencies including: self-initiative; managing, motivating, and developing associates; business judgment; and business results orientation. Green Dep., pp. 7-8. Mr. Green also had concerns because of Plaintiff's communication to Ms. Oswalt that she was "burnt out" on the front end. Green Aff., ¶ 6. As he explained: Assistant managers have to work on the front end from time to time. Additionally, the assistant manager position is more stressful and carries with it more of a burden than the customer service manager position Irene Mayes occupied. Accordingly, Irene Mayes' expression of these feelings was another indication that she was not qualified to be an assistant manager at Office Depot. Id. Moreover, Mayes had given Tim Green the
Plaintiff submitted a charge questionnaire to the EEOC in late June, 2000, and signed the official charge document in November 2000. Mayes Dep., pp. 278-79, 284, 289-90. Plaintiff claims that she met the criteria as she understood it for the customer service position. Therefore she contends she was qualified for the position and Office Depot's failure to promote her was discriminatory.
LAW AND ANALYSIS
I. STANDARD FOR SUMMARY JUDGMENT
Summary judgment will be granted when "... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.56(c); See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). The party moving for summary judgment must demonstrate the absence of a genuine issue of material fact. Liquid Air Corp., 37 F.3d at 1075. A dispute over a material fact is genuine, if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Kee v. City of Rowlett Texas, 247 F.3d 206, 210 (5th Cir.2001). If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. Liquid Air Corp., 37 F.3d at 1075.
If the movant does, however, meet this burden, the burden shifts and the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. To that end, the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. Ameristar Jet Charter v. Signal Composites, 271 F.3d 624, 626 (5th Cir.2001). However, the Court will not assume that the nonmoving party could or would prove the necessary facts. Liquid Air Corp., 37 F.3d at 1075. The nonmoving party's burden will not be satisfied by "some metaphysical doubt as to the material facts," by "conclusory allegations," by "unsubstantiated assertions," or by only a "scintilla" of evidence. Id. Therefore, summary judgment is appropriate in any case "where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir.1993); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). With these principles in mind, we now turn to a review of the claims at issue.
II. TITLE VII, ADEA, AND STATE LAW DISCRIMINATION CLAIMS
A. Procedural Considerations
1. Temporal Scope of Federal Claims
Filing a timely charge of discrimination with the EEOC is a precondition to filing a civil action in federal court. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234
The time to file a claim of discrimination with the EEOC, "begins to run from the time the complainant knows or reasonably should have known that the challenged act has occurred." A one-time employment event, including the failure to hire, is "the sort of discrete and salient event that should put the employee on notice that a cause of action has accrued." Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir.1998). These "discrete adverse actions, although racially motivated, cannot be lumped together with the day-to-day pattern of racial harassment" and therefore, if otherwise untimely, cannot be saved by the continuing violation doctrine. Id. An employee who claims to be the victim of a discriminatory failure to promote is put on notice that his rights have been violated at the time the adverse employment decision occurs, and must therefore bring the claim within 300 days of the adverse decision. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir.2001)(failure to promote claim properly dismissed because plaintiff failed to show pretext). The instant complaint is a failure to promote claim which cannot be saved by the continuing violation doctrine. Therefore, the date 300 days prior to the filing of the EEOC charge is the earliest date on which an incident of discrimination could be considered.
Severing of the employment relationship ordinarily terminates discrimination against the severed employee. Otstott v. Verex Assurance, Inc., 481 F.Supp. 1269, 1270 (N.D.Tex.1980)(collecting cases). Thus, the closing date for Office Depot's alleged discriminatory behavior is Mayes' date of resignation.
Mayes initiated her EEOC charge of discrimination for failure to promote June 1, 2000. Mayes Dep., pp. 278-79. The date 300 days prior to the filing of the EEOC charge is August 20, 1999, which is the earliest date on which an incident of discrimination could be considered. Mayes resigned on July 3, 2000 and worked until July 6, 2000. Id., pp. 226-27. All alleged discriminatory acts occurring prior to August 20, 1999 and after July 6, 2000 are prescribed. Therefore, the only promotions at issue in this lawsuit under federal discrimination laws are those of Chris Shadrix (January 2000), Denise Cashion (February 2000), and Michael Shane Cheatham (February 2000).
2. Temporal Scope of State Claims
Louisiana's anti-discrimination statute has a prescriptive period of one year during which a plaintiff must file her complaint under Louisiana Revised Statutes 23: 301 et seq. La. R.S. 23:303(D). This period may be extended by six months during the pendency of an administrative investigation of a claim of discrimination by the EEOC or the Louisiana Commission on Human Rights. La. R.S. 23:303(D). Therefore, the date 18 months prior to the filing of a complaint in state or federal court is the earliest date on which an incident of discrimination could be considered.
In the instant case, Mayes filed her lawsuit on July 3, 2001.[Doc. 1]. Because there was an administrative investigation into her charge of discrimination, the prescriptive
3. Louisiana Notice Requirement
Prior to filing a lawsuit under the Louisiana anti-discrimination statute, a plaintiff must give the proposed defendant written notice that she believes she has been discriminated against at least 30 days before initiating court action. La. R.S. 23:303(C). Filing an EEOC charge of discrimination satisfies this notice requirement,
Mayes did not give Office Depot separate written notice of her state law discrimination claims prior to commencing this suit. However, her EEOC charge, which was dual-filed with the Louisiana Commission on Human Rights, gave Office Depot notice that Mayes was alleging discriminatory behavior which violated both federal and state law. Thus, Office Depot had notice of possible state claims and Mayes' state discrimination claims withstand this procedural hurdle. However, because Mayes used the EEOC charge form to provide state notice, her state claims are hereby limited to those claims that were included in the charge.
B. Substantive Law
1. Prima Facie Case
Mayes attempts to prove her discrimination claims by indirect evidence. As a result, we apply the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Mayes cannot demonstrate a prima facie case of discrimination on the promotion of Denise Cashion for sex or age discrimination because Ms. Cashion is a female and is over the age of 40.
2. Nondiscriminatory Reason
Under the second part of the McDonnell Douglas
3. No Showing of Pretext
Under the third part of the McDonnell Douglas
The sum of Mayes' evidence of pretext are the following contentions: (1) "Neither Office Depot or Tim Green had a written criteria which was used ... for selecting assistant managers." Mayes Mem., p. 8; (2) Office Depot and Tim Green were biased. Id., p. 6; (3) "Tim Green never gave Plaintiff a written list on [sic] items she should improve on in order to be promoted to assistant manager." Id.; (4) "[Tim Green] has never recommended an African American to assistant manager." Id.; and (5) Tim Green hired Chris Shadrix because he "wanted a big husky male." Mayes Aff., ¶ 2. We take each of these allegations in turn.
a. Subjective Hiring Criteria
Mayes contends that Office Depot's assertion that other candidates were more qualified must be pretext because Office Depots's hiring criteria were largely subjective. Mayes is correct in her assertion that Office Depot cannot, "defeat an employee's claim via summary judgment at the prima facie case stage by claiming that [s]he failed to meet entirely subjective hiring criteria." Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th Cir.2001). However, the Court in Medina continued, once past the prima facie stage, "an employer can make employment decisions based on subjective criteria." Id. (emphasis added). While recognizing that:
Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993). Thus, the mere fact that an employer uses subjective criteria is not sufficient evidence of pretext. Odom, 3 F.3d at 847; Manning v. Chevron Chemical Co., 332 F.3d 874, 882 (5th Cir.2003)(failure to promote claim properly dismissed because plaintiff failed to show pretext).
A plaintiff can establish pretext and survive summary judgment by providing evidence that she was "clearly better qualified" than the employee selected for the position at issue. Celestine, 266 F.3d at 357. The question for the trier of fact is whether the employer's selection of a particular applicant over the plaintiff was motivated by discrimination, and evidence of the plaintiff's superior qualification is thus probative of pretext. Deines v. Texas Dept. of Prot. & Regulatory Services, 164 F.3d 277, 281 (5th Cir.1999). However, the bar is set high for this kind of evidence because differences in qualifications are generally not probative evidence of discrimination unless those disparities are, "of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question." Deines, 164 F.3d at 280-81. "Unless disparities in curricula vitae are so apparent as virtually to jump off the page and slap us in the face, we judges should be reluctant to substitute our views for those of the individuals charged with the evaluation duty by virtue of their own years of experience and expertise in the field in question." Odom, 3 F.3d at 847.
Office Depot's use of subjective hiring criteria alone, will not establish pretext. Moreover, Mayes does not attempt to show that the other candidates were unqualified, or that she was better qualified. Mayes Dep., pp. 194-95. Mayes only contends
Alternatively, Mayes contends that Office Depot was not correct in evaluating her potential.
Subjective hiring criteria, equivalent qualifications, and incorrect employee evaluations are not sufficient to show pretext. Mayes has not produced any non-conclusory evidence that would support her allegation that Office Depot's subjective hiring criteria was pretext and that the real reason she was not promoted was because of her age, race, and sex.
b. Mayes' Subjective Belief
Having failed to offer any evidence that she was "clearly better qualified" than the other applicants, Mayes relies on her own subjective belief that sex, race, and age motivated Office Depot, specifically Tim Green, in the promotion decision process. Mayes Mem., p. 8. A discrimination plaintiff's own good faith belief that her protective characteristics motivated her employer's action is of little value. Republic Refining, 924 F.2d at 96. This Court is "not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief." Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir.1983). Therefore, Mayes cannot prove pretext with her own self-serving conclusions that Office Depot discriminated against her.
c. Disparate Treatment
Mayes next attempts to show pretext with evidence of disparate treatment. Mayes states that Tim Green treated her differently and unfairly because he did not provide her written evaluations regarding the problems with her performance, nor did he provide her written suggestions on how to increase her chances of being promoted. Mayes Aff., ¶ 13, Green Dep., pp. 91-92. This proves no actionable disparate treatment. To establish a claim of disparate treatment, Mayes must show that Office Depot gave preferential treatment to the other candidates under "nearly identical" circumstances. Republic Refining, 924 F.2d at 96-97 (5th Cir.1991) (citations omitted). Mayes offers no evidence to support that Green or any other Office Depot supervisor provided the other candidates with written evaluations of deficiencies or suggestions on how to improve
d. Statistical Evidence
Next, Mayes attempts to show pretext by pointing to Tim Green's alleged failure to promote African Americans to the Assistant Manager positions. This type of statistical evidence can assist in establishing a prima facie case, but it does not demonstrate that the reason advanced for failure to promote her lacked either substance or credibility. Manning, 332 F.3d at 882. As discussed more fully above, Mayes failed to provide evidence that she was clearly better qualified to be assistant manager than the individuals selected for the job. Nor has Mayes offered any evidence that Office Depot has a hidden agenda to not promote African Americans. Therefore, statistical evidence will not support Mayes' claim of pretext.
e. Stray Remark
Finally, to show pretext in her sex discrimination claim, Mayes alleges that Oswalt said Green hired Chris Shadrix because he "wanted a big husky male." Mayes Aff., ¶ 2. To be probative, allegedly discriminatory statements must be made by the relevant decision maker. Nichols v. Loral Vought Systems Corp., 81 F.3d 38, 42 (5th Cir.1996). Assuming Green made the remark, even though he was one of the decision-makers in the failure to promote, his "stray remarks" are insufficient to create an inference of sex discrimination. Wyvill v. United Companies Life Insur. Co., 212 F.3d 296, 304 (5th Cir.2000). In order for an sex-based comment to be probative of an employer's discriminatory intent, "it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that [sex] was a determinative factor ..." Id. (citations omitted). Green's remark is ambiguous at best, and is not probative on the ultimate question of sex discrimination. Notably, he hired a woman, Denise Cashion, to be an assistant manager soon after allegedly making the sexist comment. Green Aff., ¶ 7. Therefore, this alleged stray remark will not support Mayes' claim of pretext.
4. Mayes Fails to Meet the Ultimate Burden
While Mayes has arguably presented evidence that Office Depot's explanation is pretextual, she has not presented sufficient evidence to support an inference that intentional discrimination was the real reason for Office Depot's employment decision. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In Reeves, the Supreme Court recognized that a prima facie showing, combined with evidence of pretext, may not always be enough to defeat judgment as a matter of law, stating that, "if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted evidence that no discrimination had occurred," the employer may be entitled to judgment in its favor. Reeves, 530 U.S. at 148, 120 S.Ct. 2097.
III. TITLE VII, § 1981 AND STATE LAW CONSTRUCTIVE DISCHARGE
Temporal Scope of Claims
As discussed at length above, Plaintiff's Title VII and Louisiana anti-discrimination law constructive discharge claims are limited to the time period between August 20, 1999 and July 6, 2000. Plaintiff's § 1981 claim has a different limitations period. A § 1981 claim is best characterized as a tort under Louisiana law and is, therefore, governed by the one-year prescriptive period for delictual actions dictated by La.Civ.Code art. 3492. Taylor v. Bunge Corp., 775 F.2d 617, 618-19 (5th Cir.1985). The filing and processing of charges with the EEOC under Title VII does not toll the running of the state prescriptive period governing § 1981 claims. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465-66, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). This lawsuit was filed on July 3, 2001. [Doc. 1]. Therefore, Plaintiff's § 1981 claim, as it relates to events that occurred prior to July 3, 2000, is prescribed.
Plaintiff seeks redress under 42 U.S.C. § 1981 for her resignation, which she styles as constructive discharge, because of Office Depot's alleged continued discriminatory failure to promote. Section 1981 provides that all persons in the United States shall have the same contractual rights as white citizens. 42 U.S.C. § 1981(a); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir.1996). Claims of racial discrimination brought under § 1981 are analyzed under the same evidentiary framework applicable to claims of employment discrimination brought under Title VII. LaPierre, 86 F.3d at 448 n. 2.
A resignation is actionable under Title VII and Louisiana anti-discrimination laws, allowing the plaintiff to seek compensatory damages for events after the resignation, if the resignation qualifies as a constructive discharge. To prove a constructive discharge, a plaintiff must establish that, "working conditions were so intolerable that a reasonable employee would feel compelled to resign." Faruki v. Parsons, 123 F.3d 315, 319 (5th Cir.1997). The burden is on the employee to prove constructive discharge. Jurgens v. E.E.O.C., 903 F.2d 386, 390 (5th Cir.1990). In determining whether a reasonable employee would feel compelled to resign, we have considered the relevancy of the following events: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement [or continued employment on terms less favorable than the employee's former status] ... Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.2001).
Discriminatory failure to promote alone, without aggravating factors, is insufficient for a claim of constructive discharge. Id.; See also Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.1990)(Racial discrimination plaintiff's constructive discharge claim cannot survive summary judgment because he resigned before filing grievance or EEOC charge); Landgraf v. USI Film Products,
In this case, Mayes claims she was constructively discharged when Office Depot repeatedly failed to promote her and because she was humiliated by being passed over time and time again. Mayes Mem., p. 4. Mayes claims that she was forced to resign, however she was clearly not pressed to leave. She had time to complete an application, be interviewed, and receive a job offer from her new employer before she resigned from Office Depot. Mayes Dep., pp. 45-46. Neither a discriminatory failure to promote nor mere humiliation can support a case of constructive discharge. Combined with her failure to mitigate damages by staying employed, Mayes cannot survive summary judgment on her constructive discharge claim. Plaintiff's claims for constructive discharge under Title VII, Louisiana anti-discrimination laws, and § 1981 are hereby dismissed with prejudice.
IV. EQUAL PAY ACT CLAIM
Mayes asserts a cause of action under the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d)(1). To establish a prima facie case for violation of the Equal Pay Act, the Plaintiff must establish that, "the employer pays workers of one sex more than workers of the opposite sex for equal work." Corning Glass Works v. Brennan, 417 U.S. 188, 191, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). More specifically, Mayes must demonstrate that: (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions. Id. Mayes has not presented any evidence to show how she was paid, or that she was paid differently than any one else because of her race, age or sex. Mayes also failed to oppose Office Depot's Motion for Summary Judgment on her Equal Pay Act claim. Therefore, Mayes' claim arising under the Equal Pay Act of 1963, as amended, is dismissed with prejudice.
V. LOUISIANA BREACH OF CONTRACT
Under Louisiana law, four elements are necessary for the creation a valid contract: (1) the parties must have the capacity to contract; (2) the parties must freely give their mutual consent to the contract; (3) the parties must have a cause or reason for obligating themselves; and (4) the contract must have a lawful purpose. La.Civ.Code Ann. arts.1918, 1927, 1966, 1971, 2029 cmt. b (West 1991); Ingraffia v. NME Hospitals, Inc., 943 F.2d 561 (5th Cir.1991). Further, the Louisiana Civil Code provides for only two types of employment contracts: a contract for a fixed time,
VI. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Temporal Scope of Claim
Mayes' claim of intentional infliction of emotional distress is brought under Louisiana Civil Code article 2315, which is subject to a one-year prescriptive period. La. Civil Code article 3492. This lawsuit was filed on July 3, 2001. [Doc. 1]. Therefore Plaintiff's intentional infliction of emotional distress claim, as it relates to events that occurred prior to July 3, 2000, is prescribed.
Although recognizing a cause of action for intentional infliction of emotional distress in a workplace setting, this state's jurisprudence has limited the cause of action to cases which involve a pattern of deliberate, repeated harassment over a period of time. Nicholas v. Allstate Insur. Co., 765 So.2d 1017, 1026-7 (La.2000)(citing White v. Monsanto, 585 So.2d 1205, 1210 (La.1991))(collecting cases). In White, the Louisiana Supreme Court stated:
White, 585 So.2d at 1209. The burden is high. A plaintiff must present specific evidence of emotional damage, "there must be a specific discernable injury to the claimant's emotional state, proven with evidence regarding the nature and extent of the harm ... The plaintiff's own testimony, standing alone, may be sufficient to prove mental damages but only if the testimony is particularized and extensive enough to meet the specificity requirement ..." Hitt v. Connell, 301 F.3d 240, 250 (5th Cir.2002).
Mayes failed to oppose Office Depot's Motion for Summary Judgment on this claim, perhaps it was because she was unable to evidence of the requisite distress. Based on the foregoing reasons, Mayes' claim for intentional infliction of emotional distress is dismissed with prejudice.
After reviewing the entire record, the Court finds that there are no genuine issues of material fact in dispute on Plaintiff's federal and state discrimination claims and other state law claims. Mayes has met the prima facie burden on her failure to promote claims based on race, sex, and age for the promotions of Chris Shadrix and Michael Shane Cheatham, and on her claim based on race for the promotion of Denise Cashion under Title VII, ADEA, and Louisiana Revised Statute 23:301. However, Office Depot has proven legitimate, nondiscriminatory reasons for the actions taken. Mayes has not produced any evidence of pretext in Office Depot's decisions. Therefore, summary judgment is proper on these claims as a matter of fact and law.
Mayes has not met the prima facie burdens on her Title VII, ADEA, and Louisiana Revised Statute 23:301 failure to promote claim based on sex and age for the promotion of Denise Cashion; her Title VII, 42 U.S.C. § 1981, and state law constructive discharge claims; her Equal Pay Act claim; her breach of contract claim; or her claim for intentional infliction of
IT IS ORDERED that Defendant Office Depot's Motion for Summary Judgment [Doc. 36] shall be GRANTED.
IT IS FURTHER ORDER that Plaintiff Irene Mayes' Amended Complaint [Doc. 2] is DISMISSED WITH PREJUDICE.