Revised August 19, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-31049
_______________
PATRICK LA DAY,
Plaintiff-Appellant,
VERSUS
CATALYST TECHNOLOGY, INC.; AND WILLIE CRAFT,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
_________________________
August 15, 2002
Before DAVIS, SMITH, and BENAVIDES, inappropriately touched a private part of La
Circuit Judges. Day’s body, and spat tobacco juice on him;
Craft also had made crude remarks to other
JERRY E. SMITH, Circuit Judge: employees and touched them inappropriately.
In this title VII case of claimed same-sex
harassment, Patrick La Day presented The district court granted summary
summary judgment evidence that his judgment for the defendants on La Day’s
supervisor, Willie Craft, made obnoxious same-sex sexual harassment claim. We
comments about La Day’s sexuality, conclude, to the contrary, that La Day
presented a fact question concerning whether Montgomery job, he refused to report to his
Craft is homosexual and harassed him severely next assignment because Craft was the
enough to alter the terms and conditions of supervisor. Catalyst initiated termination
employment. La Day satisfied the test for proceedings against La Day.
same-sex harassment outlined in Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75 In May 1998, Catalyst was served with an
(1998), so his title VII claim should go to the Equal Employment Opportunity Commission
jury. We affirm, however, the dismissal of La complaint that La Day had filed. Catalyst be-
Day’s claims for unlawful retaliation, gan an investigation into La Day’s complaint,
intentional infliction of emotional distress headed by Andy Clark, the Vice President for
(“i.i.e.d.”), and battery. Human Resources. The investigation revealed
that two other former employees had made
I. similar complaints against Craft.
A.
Catalyst Technology, Inc. (“Catalyst”), Bernard Strange had filed a written
hired La Day to work as a reactor technician in complaint against Craft with Catalyst’s
November 1996. The three incidents that led personnel manager, Charlotte Valentine,
to this suit occurred in March 1998, when La alleging that Craft had asked him to sit on his
Day was assigned to work on a job in lap and told him that he (Strange) had “pretty
Montgomery, Alabama, under Craft’s lips” and that he could “suck dick” or “suck
supervision. my dick.” Valentine arranged a meeting
In the first incident, Craft observed La Day between Strange and Craft, after which
sitting in a car with La Day’s girlfriend and Strange asked her to destroy the complaint
saw “passion marks” on La Day’s neck. Ac- because “it was a misunderstanding.” Clark
cording to La Day and his girlfriend, Craft ap- also discovered that Chad Johnson, another
proached them and stated, “I see you got a former Catalyst employee, had filed a
girl. You know I’m jealous.” complaint claiming that he was “touched in the
area of his genitals by Willie Craft.” The notes
On a later date, La Day alleges that Craft of Clark’s investigation contain detailed
approached him from behind while he was information regarding these two incidents.
bending down and fondled his anus. La Day
described the contact as similar to “foreplay After the incidents with Craft, La Day
with a woman.” La Day turned around worked on at least two other projects for
immediately and told Craft not to touch him Catalyst, neither of which involved Craft. He
that way because “I don’t play like that.” alleges that other Catalyst employees insulted
Craft laughed and walked away. That same him and generally made life difficult for him as
day, La Day reported the incident to his a result of his conflict with Craft.
immediate supervisor. Later that day, Craft
allegedly spit tobacco on La Day’s hard hat Eventually, La Day resigned from Catalyst
and shirt, stating “this is what I think of you.” because he believed that he could no longer
trust his fellow employees and claims that he
lost sixty pounds, began drinking heavily, and
After La Day returned from the experienced other health problems. In Decem-
2
ber 1998, he was diagnosed with major de- analyze the issue under the applicable federal
pressive disorder with anxiety features arising precedents.
from work-related issues; in 1999, he was
hospitalized for depression. A.
1.
B. Sexual harassment is La Day’s most
La Day sued Catalyst and Craft in state important sex discrimination claim. In Oncale,
court, claiming causes of action under title VII the Court reversed this circuit and held that
and Louisiana state sex discrimination law, a same-sex sexual harassment is actionable
state i.i.e.d. claim against Craft, and state tort under title VII, but only if the plaintiff can
law vicarious liability claims against Catalyst. “prove that the conduct at issue was not
Catalyst removed the case to the federal merely tinged with offensive sexual
district court, which granted summary connotations, but actually constituted
judgment for Catalyst and Craft on all federal discrimination because of sex.” 523 U.S. at
claims and some state claims. The court 81 (quotations and ellipses omitted). To avoid
declined to exercise supplemental jurisdiction possible misunderstanding, it is important to
over the assault and battery claims against note that judicial inquiry into the question
Craft. whether a given instance of harassment
constitutes sex-based discrimination is entirely
II. separate from inquiry into whether the
A summary judgment is reviewed de novo harasser’s conduct was serious enough to con-
under the same standard as applied by the dis- stitute either quid pro quo or hostile
trict court. King v. Ames, 179 F.3d 370, 373 environment harassment.1
(5th Cir. 1999). The record is reviewed in the
light most favorable to the nonmoving party, In a case of alleged same-sex harassment,
and the movant is required to “demonstrate courts first must determine whether the ha-
that there are no genuine issues of material rasser’s conduct constitutes sex discrimination.
fact.” Id. The court must consider both direct If the answer is “yes,” the court must decide
and circumstantial evidence but may not make whether the challenged conduct meets the
“credibility assessments,” which are the applicable standards for either a quid pro quo
exclusive province of the trier of fact. Dibi- or hostile environment claim. For example,
dale, Inc. v. Am. Bank & Trust Co., 916 F.2d same-sex harassment that is “severe or
300, 307-08 (5th Cir. 1990). pervasive” enough to create a hostile
environment, Casiano, 213 F.3d at 284, might
III. be excluded from the coverage of title VII
We begin by addressing La Day’s claims because it was not discriminatory on the basis
under title VII and Louisiana antidiscrimina- of sex. On the other hand, same-sex
tion law. Because the relevant Louisiana stat-
ute, LA. REV. STAT. 23:332, is “substantively
1
similar” t o title VII, the outcome will be the See Casiano v. AT&T Corp., 213 F.3d
same under the federal and state statutes. Tra- 278, 283-84 (5th Cir. 2000) (outlining the dif-
han v. Rally’s Hamburgers, 696 So. 2d 637, ferences between these two types of
641 (La. App. 1st Cir. 1997). We therefore harassment and the methods of proof
appropriate to each).
3
harassment that is indisputably discriminatory The Seventh Circuit has held that there was
might not be serious enough to make out sufficient evidence of homosexuality to get
either a quid pro quo or hostile environment past summary judgment where the following
claim. facts were present:
In Oncale, the Court outlined three ways in There is evidence in the record sug-
which a plaintiff can show that an incident of gesting that Jemison's harassment of
same-sex harassment constitutes sex Shepherd was borne of sexual attraction.
discrimination. First, he can show that the Recall that the alleged harassment began
alleged harasser made “explicit or implicit pro- with Jemison remarking a number of
posals of sexual activity” and provide “credible times that Shepherd was a “handsome
evidence that the harasser was homosexual.” young man.” Subsequently, in one of
Id. at 80. Second, he can demonstrate that the the more graphic encounters between
harasser was “motivated by general hostility to the two men, Jemison “rubbed himself
the presence of [members of the same sex] in into an erection” while Shepherd was
the workplace.” Id. Third, he may “offer di- laying on his stomach with cramps, and
rect, comparative evidence about how the al- Jemison urged Shepherd to turn over,
leged harasser treated members of both sexes lest he “crawl up on top of [Shepherd]
in a mixed-sex workplace.” Id. La Day alleges and fuck [him] in the ass.” Jemison
only the first type. remarked to Shepherd another time that
The present case raises an important issue
of first impression for this court: What kind of 3
(...continued)
proof constitutes “credible evidence that the more limited extent in three district court opinions,
harasser was homosexual”? Id. The Oncale two of them unpublished and none of them very
Court gave no guidance on this point: “The helpful in resolving the present case. See West v.
Court’s focus [in Oncale] was on what the Mt. Sinai Med. Ctr., 2002 U.S. Dist. LEXIS 6123,
plaintiff must ultimately prove rather than the at*5 (S.D.N.Y. Apr. 9, 2002) (holding that there
methods of doing so.” Shepherd v. Slater was not adequate proof of homosexuality where a
Steels Corp., 168 F.3d 998, 1009 (7th Cir. supervisor repeatedly made friendly gestures to a
1999).2 same-sex subordinate, such as bringing her food,
but did not engage in “any hint of sexual
Two other circuits, the Seventh and Ninth, innuendo”); English v. Pohanka, Inc., 190 F.
have addressed this issue to a limited degree.3 Supp. 2d 833, 846 (E.D. Va. 2002) (holding that
summary judgment was justified in a case where
the plaintiff’s sole proof of the harasser’s
homosexuality was the victim’s “subjective belief
2 that [the harasser] was gay” and where numerous
This matter apparently is also one of first im-
pression under Louisiana anti-discrimination law, co-workers denied this claim); Merritt v. Del. Riv.
for we have not been able to discover applicable Port Auth., 1999 U.S. Dist. LEXIS 5896, at*10
post-Oncale Louisiana precedents that address the (E.D. Pa. Apr. 20, 1999) (holding that “disputed
issue of proof of the harasser’s homosexuality. facts exist to suggest that [the alleged harasser]
might be sexually oriented towards men” but de-
3
The issue has also been addressed to an even clining to “recit[e] details” of the evidence sup-
(continued...) porting this conclusion).
4
“[a] man can come if he’s fucked in gay.” Id. at 1207.4
the ass.” Finally, on the occasion
that Shepherd came to work The present case falls somewhere in
complaining of soreness, Jemison between Shepherd and Rene. Craft’s possible
offered to make him feel better by sexual interest in La Day was not as ongoing
giving him “a nice hot shower.” and extensive as was that of the alleged harass-
er in Shepherd. Unlike the harasser in
Although none of these incidents Shepherd, Craft did not explicitly state his de-
necessarily proves that Jemison is gay, sire to have sexual relations with the victim,
the connotations of sexual interest in nor did he make anywhere near as many phy-
Shepherd certainly suggest that Jemison sical gestures suggesting such interest. He did,
might be sexually oriented toward however, touch La Day in a sexual manner,
members of the same sex. while the harasser in Shepherd did not touch
the plaintiff.
Id. at 1009-10 (citations omitted, brackets in
original). On the other hand, the evidence of
homosexual interest is significantly greater in
In a case with a considerably less this case than in Rene. There is no evidence
unequivocal fact pattern, the Ninth Circuit that the harassment of La DaySSunlike that of
upheld a summary judgment where the alleged the plaintiff in ReneSSwas motivated by the
“sexual harassment consisted of, among other plaintiff’s putative homosexuality or by some
things being grabbed in the crotch and poked factor other than sexual attraction.5 To the
in the anus on numerous occasions, being contrary, Craft seems to have been angered by
forced to look at pictures of naked men having La Day’s apparent heterosexuality, as
sex while . . . coworkers looked on and evidenced by his comment that he was
laughed, being caressed, hugged, whistled and “jealous” of La Day’s girlfriend.
blown kisses at, and being called ‘sweetheart’
and ‘Muneca.’” Rene v. MGM Grand Hotel, It is of course possible that Craft was sim-
Inc., 243 F.3d 1206, 1207 (9th Cir.), pet. for
reh’g en banc granted, 255 F.3d 1069 (9th
4
Cir. 2001). The court held that the plaintiff Rene was argued and submitted to the en banc
“has presented no evidence that any of his court on September 25, 2001. The question under
harassers were homosexual, not that they were review, according to the Ninth Circuit’s website, is
in any way motivated by sexual desire. On the as follows: “Do numerous sexual assaults of an
contrary, evidence presented by [the plaintiff] openly gay employee by male co-workers over the
suggests not that they desired him sexually, course of more than two years of employment
but rather that they sought to humiliate him constitute a hostile work environment and
discrimination on the basis of sex, after . . .
because of his sexual orientation.” Id. at 1209.
Oncale . . .?”
The plaintiff, in fact, had testified that he
thought he was being harassed “because he is 5
In fact, if the proper analysis is used, the sex-
ual orientation of the allegedly harassed employee
(the plaintiff) plays no part in these cases. Only
the sexual orientation of the harasser is relevant in
cases of same-sex harassment.
5
ply mocking La Day; on summary judgment, Here we have evidence of sexual advances
however, we must assume the facts to be as both to the victim and to other employees.
alleged by [the plaintiff].” Oncale, 523 U.S. at Undoubtedly there is credible evidence of
76. Viewed in that light, the remark suggests Craft’s sexual interest in La Day. It is certain-
that Craft was “jealous” of La Day’s girlfriend ly possible that Craft was simply trying to hu-
because he had a sexual interest in him. A fact miliate La Day for reasons unrelated to any
finder ultimately will have to decide which side sexual interest and that he is not a homosexual.
has the greater weight of the evidence. When we view the summary judgment
evidence in the light most favorable to La Day
It is not possible for us to specify all the (the nonmovant on summary judgment), how-
possible ways in which a plaintiff might prove ever, there is credible evidence that Craft is a
that an alleged harasser acted out of homosexual and that he was making sexual ad-
homosexual interest in him. Nonetheless, vances. His remark that he was “jealous” of
there are two types of evidence that are likely La Day’s girlfriend, combined with his poking
to be especially “credible” proof that the of La Day’s anus, easily is susceptible of that
harasser may be a homosexual. interpretation. Moreover, Craft’s later
hostility toward La Day, exemplified by his
The first is evidence suggesting that the spitting tobacco at him, plausibly could be
harasser intended to have some kind of sexual interpreted as anger over La Day’s rejection of
contact with the plaintiff rather than merely to his sexual advances.
humiliate him for reasons unrelated to sexual
interest. The second is proof that the alleged Importantly, Strange and Johnson credibly
harasser made same-sex sexual advances to claimed that Craft had made sexual overtures
others, especially to other employees. This ap- to them.7 Thus, La Day’s assertion that Craft
proach conforms with the admonition that
“‘[t]he critical issue . . . is whether members of
one sex are exposed to disadvantageous terms 6
(...continued)
or conditions of employment to which that Craft is a bisexual or that he made advances to
members of the other sex are not exposed.’” women similar to those he made to La Day. Cf.
Oncale, 523 U.S. at 80 (quoting Harris v. Lack v. Wal-Mart Stores, Inc., 240 F.3d 255, 261
Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (4th Cir. 2001) (upholding summary judgment
(Ginsburg, J., concurring)). A harasser may where harasser made vulgar sexual remarks and
well make sexually demeaning remarks and gestures to male and female employees on an equal
putdowns to the plaintiff for sex-neutral basis).
reasons, as in Rene, but he is far less likely to 7
make sexual advances without regard to sex.6 For details, see the description of the Strange
and Thompson incidents in part I of this opinion.
Catalyst argues that this evidence should be ex-
cluded as hearsay. Clark’s notes, however, fall
6
The exception may be a bisexual harasser who within the business records exception to the hear-
is willing to make unwanted advances to both men say rule. As part of Catalyst’s investigation into
and women on an equal basis. The difficult La Day’s allegations against Craft, Clark kept sys-
question of the status of bisexual harassers was not tematic notes in which he recorded Strange’s state-
addressed in Oncale. There is no evidence or claim ment to Valentine and Thompson’s allegation.
(continued...) (continued...)
6
is a homosexual is backed by both types of proposals of sexual activity.” Oncale, 523
evidence that we have outlined. U.S. at 80. Accordingly, there is sufficient
proof of Craft’s homosexuality for La Day’s
Craft and Catalyst argue that even if there harassment claim to survive summary
is evidence that Craft is a homosexual, judgment.
summary judgment should be granted because
there is no proof that Craft made sexual 2.
overtures to La Day. Nonetheless, if the a.
evidence is viewed in the light most favorable Having provided adequate summary
to La Day, it is reasonable to conclude that judgment evidence that he was harassed based
Craft’s touching of La Day’s anus, and his on sex by virtue of Craft’s apparent status as a
earlier expressed jealousy toward La Day’s homosexual, La Day also must show that he
girlfriend, constituted “explicit or implicit was subjected to either quid pro quo or
“hostile environment” harassment. Casiano,
213 F.3d at 283-84. Under Oncale, it is
7
(...continued) sometimes harder to prove that an instance of
Business records such as Craft’s notes may be harassment was motivated by sex
admitted as an exception to the hearsay rule if “[a] discrimination in a same-sex situation than in
memorandum, report, record, or data compilation, a circumstance involving alleged opposite-sex
in any form, of acts, events, conditions, opinions, harassment.8 Once sex discrimination has been
or diagnoses, made at or near the time by, or from proven sufficiently to survive summary
information transmitted by, a person with judgment, however, there is no distinction
knowledge, if kept in the course of a regularly
between same-sex and opposite-sex
conducted business activity, and if it was the
harassment with respect to the next stage of
regular practice of that business activity to make
the memorandum, report, record or data the inquiry: determining whether the
compilation, all as shown by the testimony of the discriminatory action was serious enough to
custodian or other qualified witness.” FED R. constitute quid pro quo or hostile environment
EVID. 803(6). “Whether evidence is admissible harassment.
under Rule 803(6) is chiefly a matter of
trustworthiness.” United States v. Wells, 262 F.3d The issue of quid pro quo harassment must
455, 459-60 (5th Cir. 2001) (quotations omitted). be considered first. Id. The plaintiff must
show that he suffered a “tangible employment
action” that “resulted from his acceptance or
There is no reason to doubt the rejection of his supervisor’s alleged sexual ha-
“trustworthiness” of Clark’s notes, and they rassment.” Id. at 283. “A tangible
undeniably meet the technical requirements of rule employment action constitutes a significant
803(6). Indeed, to the extent that Clark, a vice-
change in employment status, such as hiring,
president at Catalyst, might have been dishonest in
recording these matters, he surely had an incentive
to alter his notes to omit evidence of Craft’s
8
homosexual advances to employees rather than to See Oncale, 523 U.S. at 80 (noting that in
accentuate it. The fact that such evidence is some cases, claims of same-sex harassment must
manifestly present in the notes reinforces our be backed by “credible evidence that the harasser
conclusion that Clark acted in good faith and that was homosexual,” even though proof of sexual
the records he kept are trustworthy. orientation is unnecessary in opposite-sex cases).
7
firing, failing to promote, reassignment with “‘In order to be actionable under [title VII],
significantly different responsibilities, or a a sexually objectionable environment must be
decision causing a significant change in both objectively and subjectively offensive, one
benefits.” Burlington Indus., Inc. v. Ellerth, that a reasonable person would find hostile or
524 U.S. 742, 761 (1998). abusive, and one that the victim in fact did
perceive to be so.’” Butler v. Ysleta Indep.
La Day alleges that Catalyst failed to Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998)
promote him to a higher position, despite his (quoting Faragher v. City of Boca Raton, 524
being qualified for it, and that Catalyst “con- U.S. 775, 787 (1998)). “Whether an
structively discharged” him. The existence of environment meets this standard depends on
such a tangible act is, however, in serious ‘all the circumstances,’ including the frequency
doubt. La Day failed to specify to which pre- of the discriminatory conduct; its severity;
cise position he should have been promoted. whether it is physically threatening or
“A tangible employment decision requires an humiliating, or a mere offensive utterance; and
official act of the enterprise, . . . in most cases whether it unreasonably interferes with an
documented in official company records.” Id. employee’s work performance.’” Id. (quoting
at 762. Faragher, 775 U.S. at 787).
There is no evidence that Catalyst ever There is no doubt that Craft’s conduct was
made such an “official act” adverse to La subjectively offensive to La Day andSSat the
Day’s employment prospects. Id. Even if La very leastSSthere is a disputed question of fact
Day could prove the existence of a tangible regarding objective offensiveness under the
employment action, he does not meet the stan- circumstances. There is strong evidence sug-
dards for a quid pro quo claim, because he gesting that Craft’s conduct was not the norm
failed to demonstrate the necessary causal at this particular workplace.9 Furthermore,
“nexus” between his refusal of Craft’s alleged Craft’s conduct was physically “humiliating”;
advances and the claimed adverse actions. even if not “threatening,” it was arguably se-
Casiano, 213 F.3d at 283. Although La Day vere, and there is a disputed question of fact
eventually left Catalyst because he felt he no whether it unreasonably interfered with La
longer could work there after the incidents in- Day’s work performance. Butler, 161 F.3d at
volving Craft, there is no evidence that Craft 269. As a result of Craft’s harassment, La
or anyone else at Catalyst sought to alter his Day claims to have experienced physical and
job prospects or to refuse him promotion as a psychological difficulties, including severe de-
result of his rejection of Craft’s advances. pression, that impaired his ability to work.10
b. Only the factor of “frequency of the
If the plaintiff fails to provide sufficient ev- discriminatory conduct” indisputably cuts in
idence of quid pro quo harassment, he must
prove the existence of hostile environment ha-
rassment. This requires a demonstration that 9
See the discussion, infra, of Roosevelt
the alleged harassment, if its existence were to Wright’s affidavit.
be “proved,” was “severe or pervasive.” Id. at
284. 10
See the description of La Day’s depression
and other health problems, supra part I.
8
favor of Craft and Catalyst. Butler, 161 F.3d and (2) the employee unreasonably failed to
at 269. But, to survive summary judgment on take advantage of any preventive or corrective
a hostile environment claim, a plaintiff need opportunities provided by the employer or to
only show that the harasser’s conduct was avoid harm otherwise.” Id. Catalyst has not
“severe or pervasive.” Casiano, 213 F.3d at briefed this issue, however, and “contentions
284 (emphasis added). He does not have to not briefed are waived and will not be
prove both. Given that Craft’s anal touching considered on appeal.” Zeno v. Great Atl. &
and other actions arguably were “severe,” they Pac. Tea Co., 803 F.2d 178, 180 (5th Cir.
need not have been frequent enough to be per- 1986). La Day provided sufficient evidence of
vasive for La Day’s claim to get past summary a hostile environment to survive summary
judgment. judgment. A fact finder will have to sort
through all the evidence to see whether there
Craft’s actions, of course, must be was harassment and, if so, whether Catalyst
evaluated with “an appropriate sensitivity to presents sufficient evidence to establish a
social context.” Oncale, 523 U.S. at 82. “The defense to it.
real social impact of workplace behavior often
depends on a constellation of surrounding cir- B.
cumstances.” Id. at 81-82. For example, rea- La Day assert s a retaliation claim. “A
sonably foreseeable “male-on-male horseplay” plaintiff establishes a prima facie case for un-
is not actionable. Id. at 81. Therefore, “the lawful retaliation by proving (1) that she
objective severity of harassment should be engaged in activity protected by title VII,
judged from the perspective of a reasonable (2) that an adverse employment action
person in the plaintiff’s position, considering occurred, and (3) that a causal link existed
‘all the circumstances.’” Id. at 81 (quoting between the protected activity and the adverse
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 employment action.” Long v. Eastfield
(1993)). College, 88 F.3d 300, 304 (5th Cir. 1996).
Even if we assume that La Day suffered
In this context, Craft’s behavior was not “adverse employment action[s],” there is no
normal in the Catalyst workplace. According evidence of a “causal link” between any such
to the affidavit of Catalyst supervisor action and La Day’s complaints against Craft.
Roosevelt Wright, sexual joking is not Id. Therefore, we affirm the summary
common at the firm, and Wright had never judgment in favor of Catalyst on La Day’s
seen any male employee touch another male retaliation claim.
worker in a sexual manner.
IV.
c. La Day has asserted a state law i.i.e.d.
Despite La Day’s success in providing ade- claim against Craft. Under Louisiana law, La
quate summary judgment evidence of a hostile Day must prove “(1) that the conduct of the
environment, Catalyst could have obtained defendant was extreme and outrageous,
summary judgment by establishing an (2) that the emotional distress suffered by the
affirmative defense demonstrating that “(1) [it] plaintiff was severe; and (3) that the defendant
exercised reasonable care to prevent and desired to inflict severe emotional distress or
correct promptly any such sexual harassment, knew that severe emotional distress would be
9
certain or substantially certain to result from F.2d 217, 221 (5th Cir. 1971). We therefore
his conduct.” White v. Monsanto Co., 585 affirm the summary judgment on the i.i.e.d.
So. 2d 1205, 1209 (La. 1991). claim.
Even if we assume, arguendo, that La V.
Day’s claim meets the first two prongs, it runs La Day asserts a state law tort cl aim that
afoul of the third. There is no evidence that Catalyst is vicariously liable for Craft’s alleged
Craft intended to inflict severe distress or that torts against him, including assault, battery,
he knew such distress inevitably would occur. and i.i.e.d. Under Louisiana law, “an employer
Although it certainly was foreseeable that se- is liable for a tort committed if, at the time, the
vere emotional distress might result from employee was acting within the course and
Craft’s egregious conduct, it was not “certain scope of his employment.” Baumeister v.
or substantially certain” to do so. Id. Another Plunkett, 673 So. 2d 994, 996 (La. 1996).
person might have been able to shake off Louisiana courts consider four factors in
Craft’s obnoxious advances with little or no determining whether this standard for vi-
lasting distress, or at least without severe con- carious liability is met:
sequences.11
(1) whether the tortious act was
In a case arising from the same incidents primarily employment rooted;
addressed in the present litigation, a Louisiana
court found against La Day, holding that (2) whether the violence was reasonably
Craft’s conduct did not cause him incidental to the performance of the em-
“extraordinary mental stress.” La Day v. ployee’s duties;
Catalyst Tech., Inc., 818 So.2d 64, 68 (La.
App. 1st Cir. 2001). Although that case (3) whether the act occurred on the em-
involved a workers’ compensation claim rather ployer’s premises; and
than a claim of i.i.e.d., the court found that the
same standard applied and explicitly cited (4) whether it occurred during the hours
White as the basis for its holding in favor of of employment.
Catalyst. Id. at 68 n.5.
Id. at 996-97.
Thus, we must conclude that a Louisiana
court would not find in La Day’s favor here. La Day’s claim meets the third and fourth
“In an instance of interpreting state law, the factors; the alleged tortious conduct occurred
goal of the federal courts is to try to get the on Catalyst’s premises during working hours.
same result that would be reached in the state It undeniably fails the first two prongs,
courts.” Oliva v. Pan Am. Life Ins. Co., 448 however. Craft’s harassment of La Day was
certainly not “primarily employment rooted”
and was not “reasonably incidental to the
11
Cf. White, 585 So. 2d at 1210 (stressing that performance of [Craft’s] duties. Id. Meeting
“[t]he conduct must be intended or calculated to the third and fourth prongs is not in and of
cause severe emotional distress and not just some itself sufficient to sustain a claim of vicarious
less degree of fright, humiliation, embarrassment,
worry, or the like”).
10
liability.12 So, we affirm summary judgment
on this issue.
For the reasons we have explained, the
summary judgment is AFFIRMED in part and
REVERSED in part and REMANDED for
further proceedings consistent with this
opinion.
12
See id. at 997 (noting that “an employer
is not vicariously liable merely because his
employee commits an intentional tort on the
employer’s premises during working hours”).
11