Ronald Gauthreaux Versus The City of Gretna, Belinda Constant, Solely in Her Capacity as Mayor for the City of Gretna, Lance Laine and Ll's Handyman Duties ( 2023 )

RONALD GAUTHREAUX NO. 22-CA-424
VERSUS FIFTH CIRCUIT
THE CITY OF GRETNA, BELINDA COURT OF APPEAL
CONSTANT, SOLELY IN HER CAPACITY AS
MAYOR FOR THE CITY OF GRETNA, STATE OF LOUISIANA
LANCE LAINE AND LL’S HANDYMAN
DUTIES
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 826-992, DIVISION "P"
HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
March 29, 2023
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and John J. Molaison, Jr.
AFFIRMED
JGG
SMC
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
RONALD GAUTHREAUX
Todd A. Hebert
Joshua L. Holmes
COUNSEL FOR DEFENDANT/APPELLEE,
THE CITY OF GRETNA AND BELINDA CONSTANT, SOLELY IN HER
CAPACITY AS MAYOR FOR THE CITY OF GRETNA
Leonard L. Levenson
Christian W. Helmke
W. J. LeBlanc, Jr.
GRAVOIS, J.
Plaintiff, Ronald Gauthreaux, appeals the trial court’s July 18, 2022
judgment which sustained the peremptory exception of no cause of action filed by
defendants, the City of Gretna and Belinda Constant, in her capacity as Mayor of
the City of Gretna, and dismissed plaintiff’s claims against these defendants with
prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 8, 2022, plaintiff, Ronald Gauthreaux, filed a petition for damages,
naming as defendants: the City of Gretna; Belinda Constant, in her capacity as
Mayor of the City of Gretna; Lance Laine; and Mr. Laine’s company, LL’s
Handyman Duties. In the petition, plaintiff, an employee of the City of Gretna
since 2006, alleged that the City of Gretna and Mayor Constant discriminated
against him and intentionally inflicted emotional distress upon him based on his
sexual orientation. According to the petition, plaintiff met Mr. Laine, who was
working at the time as a subcontractor for the City of Gretna, in February of 2021.
Plaintiff claimed that during their encounters, Mr. Laine made several unsolicited
comments about plaintiff’s sexual orientation.
On March 31, 2021, Mr. Laine traveled with plaintiff to plaintiff’s home
during their lunch break to appraise a shelf installation job for plaintiff that he
intended to perform through his company, LL’s Handyman Duties. Plaintiff
alleged that while they were in his vehicle, Mr. Laine “repeatedly gripped and
pulled at his crotch area.” This continued once they were at plaintiff’s home.
When Mr. Laine quoted plaintiff a price of $200.00 for the shelf installation job,
plaintiff believed that based on this low price and Mr. Laine’s behavior, Mr. Laine
was either “making a serious sexual advance toward him, or harassing him about
his sexual orientation.” Plaintiff, wishing to clarify, asked Mr. Laine if he would
“require a sexual favor as well.” According to the petition, Mr. Laine responded
22-CA-424 1
by saying that he was not gay. They returned to their work, and later Mr. Laine
texted plaintiff to communicate that he would not be doing the shelf work at
plaintiff’s home. The next day, plaintiff was notified that Mr. Laine had filed a
sexual harassment complaint against him, and he was suspended from work with
pay. During the investigation of the claim that followed, plaintiff alleged that he
had to answer “a barrage of embarrassing and humiliating questions about his
sexual orientation and activities.”
On April 22, 2021, plaintiff was terminated from his employment with the
City of Gretna.1 The reasons given in his separation notice included “misconduct,
sexual harassment, dishonesty, prior sexual harassment incidents and
insubordination.” Plaintiff claimed, however, that the City of Gretna never
previously asserted that he had engaged in any misconduct, sexual harassment,
dishonesty, or insubordination. Further, to his knowledge, no female or non-
LGTBQ+ male had ever been accused of sexual harassment and/or terminated
because they “confronted a co-worker about that co-worker’s sexually suggestive
behavior toward them.” He asserted that the City of Gretna had been aware that
his sexual orientation was towards men, and the alleged incident occurred off the
clock and not in the course and scope of either his or Mr. Laine’s employment. He
claimed that Mr. Laine’s actions, the sexual harassment claim that followed, the
humiliation caused by the City of Gretna’s investigation, and his subsequent
termination, inflicted severe emotional distress upon him. Plaintiff further alleged
that he qualifies as a protected person under La. R.S. 23:332, which is entitled
“Intentional discrimination in employment,” due to his sexual orientation and the
subsequent retaliatory termination. He specifically claimed that the City of Gretna,
1
The original petition stated that plaintiff’s employment was terminated on April 4,
2021. On June 14, 2022, plaintiff filed a first supplemental and amended petition for damages
stating that he was terminated on April 22, 2021.
22-CA-424 2
Mayor Constant, and Mr. Laine discriminated against him and inflicted emotional
distress upon him due to the following:
1. Making sexually suggestive gestures, actions and comments with
the intent to humiliate [plaintiff] based on his sexuality.
2. Accusing [plaintiff] of sexual harassment despite [him] being the
victim through Mr. Laine’s actions and comments, despite [him]
ceasing all alleged sexual comments once Mr. Laine advised him
that such comments were unwelcome, and despite all comments
being made outside the course and scope of either party’s
employment.
3. Questioning [plaintiff] about his past sexual activities while
“investigating” him about alleged sexual harassment he did not
initiate and which occurred outside the course and scope of either
party’s employment.
4. Taking an adverse employment action against [plaintiff].
5. Using actions associated with [plaintiff’s] sexual orientation as a
reason to terminate his employment after his job had become
obsolete.
6. Disclosing his termination and the false sexual harassment charge
to other City employees and to community members beyond the
City’s staff.
In response, the City of Gretna and Mayor Constant filed peremptory
exceptions of prescription2 and no cause of action. Regarding the exception of no
cause of action, defendants argued that although plaintiff alleges he is a protected
person under La. R.S. 23:332, neither this statute nor any laws in Louisiana
provide anti-discrimination protection in employment to persons based on their
“sexual orientation.” Accordingly, defendants argued that plaintiff has no cause of
action based upon alleged employment discrimination due to sexual orientation.
In opposition, plaintiff argued that Louisiana courts have consistently looked
to federal jurisprudence to interpret Louisiana anti-discrimination laws. Plaintiff
asserted that the United States Supreme Court’s decision in Bostock v. Clayton
Cnty., Georgia, 207 L.Ed.2d 218, 140 S.Ct. 1731 (2020), found that Title VII of
2
Following the filing of plaintiff’s first supplemental and amended petition, the
exception of prescription became moot.
22-CA-424 3
the Civil Rights Act of 1964, provides for the protection of employees who
experience employment discrimination based on sexual orientation, and thus based
on Bostock, La. R.S. 23:332 also provides such protection to him in this case.
Following a hearing on July 7, 2022, the trial court signed a written
judgment on July 18, 2022 which sustained the City of Gretna and Mayor
Constant’s peremptory exception of no cause of action and dismissed plaintiff’s
claims against these defendants with prejudice. The trial court stated in the
judgment that it was “beyond the purview of the Court to extend the express
language and intent of Louisiana Revised Statute 23:332.” This appeal followed.
LAW AND ANALYSIS
The purpose of the peremptory exception of no cause of action is to test the
legal sufficiency of the petition by determining whether the law affords a remedy
on the facts alleged in the petition. Gaudet v. Jefferson Parish, 12-707 (La. App. 5
Cir. 3/27/13), 116 So.3d 691, 693. The exception of no cause of action is triable
on the face of the petition. No evidence may be introduced to support or
controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently,
the court reviews the petition and accepts the well-pleaded allegations of fact in the
petition as true. Gaudet, 116 So.3d at 693.
The mover has the burden of demonstrating that the petition fails to state a
cause of action. The pertinent question is whether, in the light most favorable to
the plaintiff and with every doubt resolved in the plaintiff’s behalf, the petition
states a valid cause of action for relief. Pinegrove Elec. Supply Co., Inc. v. Cat
Key Const., Inc., 11-660 (La. App. 5 Cir. 2/28/12), 88 So.3d 1097, 1100. Whether
the plaintiff can prove the allegations set forth in the petition is not determinative
of the exception of no cause of action. Clulee v. St. Pierre, 13-881 (La. App. 5 Cir.
5/14/14), 142 So.3d 83, 86.
22-CA-424 4
In reviewing the judgment of the trial court relating to an exception of no
cause of action, appellate courts should conduct a de novo review because the
exception raises a question of law and the lower court’s decision is necessarily
based solely on the sufficiency of the petition. Kitziger v. Mire, 19-87 (La. App. 5
Cir. 9/24/19), 280 So.3d 302, 306, writ denied, 19-1858 (La. 1/28/20), 291 So.3d
1055.
On appeal, plaintiff argues that the trial court erred by not following Bostock
and by interpreting La. R.S. 23:332 to find that it does not protect persons
discriminated against in employment based on their sexual orientation.
Louisiana Revised Statute 23:332 governs intentional discrimination in
employment and provides, in pertinent part:
A. It shall be unlawful discrimination in employment for an employer
to engage in any of the following practices:
(1) Intentionally fail or refuse to hire or to discharge any
individual, or otherwise to intentionally discriminate against
any individual with respect to compensation, or terms,
conditions, or privileges of employment, because of the
individual’s race, color, religion, sex, national origin, or natural,
protective, or cultural hairstyle.
***
Because this statute is similar in scope to the federal anti-discrimination
prohibitions in Title VII of the Civil Rights Act of 1964, “Louisiana courts have
routinely looked to the federal jurisprudence for guidance in determining whether a
claim has been asserted” under La. R.S. 23:332(A).3 Plummer v. Marriott Corp.,
94-2025 (La. App. 4 Cir. 4/26/95), 654 So.2d 843, 848, writ denied, 95-1321 (La.
9/15/95), 660 So.2d 460; Chaney v. Home Depot, USA, Inc., 05-1484 (La. App. 4
Cir. 8/16/06), 940 So.2d 18, 22, writ denied, 06-2286 (La. 11/22/06), 942 So.2d
3Title VII of the Civil Rights Act of 1964 provides that it is an unlawful employment
practice to “discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C.A. § 2000e-2(a)(1).
22-CA-424 5
559; See also King v. Phelps Dunbar, L.L.P., 98-1805 (La. 6/4/99), 743 So.2d 181,
187; Bustamento v. Tucker, 607 So.2d 532, 539 n.9 (La. 1992); Newton &
Associates, Inc. v. Gross, 06-596 (La. App. 5 Cir. 11/28/06), 947 So.2d 67, 69.
We have found no state law that protects persons allegedly discriminated
against in employment specifically because of their sexual orientation. Currently,
La. R.S. 23:332 simply prohibits employment discrimination based on a person’s
biological sex. See Louisiana Dep’t of Justice v. Edwards, 17-0173 (La. App. 1
Cir. 11/1/17), 233 So.3d 76, 81, writ denied, 17-2020 (La. 3/23/18), 239 So.3d 824.
However, plaintiff argues that the United States Supreme Court’s recent decision
in Bostock expands the protections found in La. R.S. 23:332 to include persons
who are allegedly discriminated against in employment because of their sexual
orientation.
In Bostock, the United States Supreme Court considered whether an
employer violates Title VII when it intentionally fires an individual employee
based on their homosexuality or transgender status. The Court found that because
discrimination on the basis of homosexuality or transgender status requires an
employer to intentionally treat individual employees differently because of their
sex, an employer who intentionally penalizes an employee for being homosexual
or transgender also violates Title VII. 140 S.Ct. at 1734.
Bostock involved three cases in which long time employees were fired solely
after it was learned that the employees were homosexual or transgender. Id. at
1737-38. The Court began its analysis by considering the plain meaning of the
words of the Title VII statute that state that it is an unlawful employment practice
to “discriminate against any individual … because of such individual’s … sex … .”
The Court first proceeded “on the assumption” that “sex” referred only to
biological distinctions between male and female and found that the phrase
“because of” in the language of the law referred to a “but-for” test. Id. at 1739.
22-CA-424 6
From the ordinary meanings of the words at the time of the law’s adoption, the
Court determined that a straightforward rule emerges:
An employer violates Title VII when it intentionally fires an
individual employee based in part on sex. It doesn’t matter if other
factors besides the plaintiff’s sex contributed to the decision. And it
doesn’t matter if the employer treated women as a group the same
when compared to men as a group. If the employer intentionally
relies in part on an individual employee’s sex when deciding to
discharge the employee—put differently, if changing the employee’s
sex would have yielded a different choice by the employer—a
statutory violation has occurred.
Id. at 1741.
The Court then found that based on the cases before it, “it is impossible to
discriminate against a person for being homosexual or transgender without
discriminating against that individual based on sex.” Id. This is because to
“discriminate on these grounds requires an employer to intentionally treat
individual employees differently because of their sex.” Id. at 1742.
While plaintiff argues that the trial court erred in not relying on Bostock in
interpreting La. R.S. 23:332, the majority opinion in Bostock states that the only
law it considered in rendering its opinion was Title VII, specifically stating that
“none of these other [federal or state laws that prohibit sex discrimination] are
before us … .” Id. at 1753. Thus, although persuasive, our state courts are not
bound by Bostock’s interpretation of Title VII in interpreting La. R.S. 23:332. As
there is no binding federal or state law or jurisprudence on point, and because the
legislature has not seen fit to amend La. R.S. 23:332 to specifically include
protection from employment discrimination because of a person’s sexual
orientation,4 we decline to extend Bostock’s reasoning to La. R.S. 23:332 to find
that it allows for protection from employment discrimination because of a person’s
4
Notably, in the 2022 Louisiana Legislative Session, House Bill No. 439 proposed to add
“sexual orientation” and “gender identity” to La. R.S. 23:332, but the bill was involuntarily
deferred in committee. It appears that there is proposed legislation for the upcoming 2023
Louisiana Legislative Session that would amend La. R.S. 23:332 to include “sexual orientation”
and “gender identity.” See 2023 Louisiana House Bill No. 40.
22-CA-424 7
sexual orientation. As such, we find that plaintiff’s petition fails to state a cause of
action against the City of Gretna and Mayor Constant.
DECREE
Accordingly, for the foregoing reasons, the trial court’s judgment which
sustained the peremptory exception of no cause of action filed by the City of
Gretna and Mayor Constant and dismissed plaintiff’s claims against these
defendants with prejudice is affirmed.
AFFIRMED
22-CA-424 8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 29, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-424
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. LEE V. FAULKNER, JR. (DISTRICT JUDGE)
TODD A. HEBERT (APPELLANT) CHRISTIAN W. HELMKE (APPELLEE) LEONARD L. LEVENSON (APPELLEE)
W. J. LEBLANC, JR. (APPELLEE)
MAILED
JOSHUA L. HOLMES (APPELLANT) COLLEEN B. GANNON (APPELLEE)
ATTORNEY AT LAW DONNA R. BARRIOS (APPELLEE)
1631 ELYSIAN FIELDS AVENUE ATTORNEYS AT LAW
SECOND FLOOR 650 POYDRAS STREET
NEW ORLEANS, LA 70117 SUITE 2750
NEW ORLEANS, LA 70130