Louisiana Court Rules Jones Act Claim for Mental Injury Can Proceed in Light of Noose in Maritime Workplace
Recently, the Louisiana Court of Appeal, First Circuit, in Thompson v. Cenac Towing Co., L.L.C., analyzed a trial court’s grant of summary judgment in a company’s favor after a noose-like rope was found hanging in a maritime workplace and held that the trial court had improperly weighed the credibility of the plaintiff’s testimony, resulting in the reversal and remand of the case.
Although the Thompson case arose under the Jones Act and federal maritime law, its holding reflects legal principles developed through unlawful harassment litigation under the Louisiana Employment Discrimination Law and Title VII of the Civil Rights Act of 1964. The appellate court noted that “[i]t appear[ed] from the record that the plaintiff did not pursue the claims made in his petition for any employment-related damages for racial discrimination, hostile work environment, constructive discharge, or loss of benefits because of his race. Thus, from the record it appears that the plaintiff’s only claims are based in maritime law.” The noose (and other similar symbols of hate and violence) have been historically used as weapons of racial terror. In the modern workplace, the noose continues to be potentially used as an instrument of racial discrimination and harassment.
Background and Procedural History
Robert Thompson, the plaintiff, an African-American employee, was employed as a tankerman by the defendant, Cenac Towing Co., L.L.C. On October 3, 2008, Thompson started a 28-day hitch aboard the M/V Norman Proehl, where he allegedly noticed a rope that resembled a noose hanging in the vessel’s wheelhouse. Thompson did not express any concerns about the noose until two weeks later, on October 17, 2008, when he went into the wheelhouse and told the captain that he would report him for the noose. The captain never made any physical contact with Thompson. Immediately following this confrontation, the captain reported Thompson’s complaint to Cenac’s personnel coordinator. Thompson was transferred to another vessel the following day.
Almost a year after the incident, on October 14, 2009, Thompson filed a petition seeking damages from Cenac for negligent infliction of emotional distress and racial discrimination. “[Thompson] alleged that the crew members aboard the vessel hung a noose in the ship’s wheelhouse in an effort to threaten and intimidate him because of his race. [He] further alleged that he asked the captain to remove the noose because it made him feel threatened, but the captain refused to do so.” Thompson later amended his petition, asserting a claim for intentional and negligent infliction of emotional distress under Louisiana’s general tort statute, La. C.C. art. 2315. Cenac filed a peremptory exception of no cause of action (the Louisiana equivalent of a motion to dismiss) and the trial court held that any claims under La. C.C. art. 2315 were preempted by the Jones Act and general maritime law.
On January 3, 2018, Cenac filed a motion for summary judgment seeking the dismissal of the remainder of Thompson’s claims. “[Cenac] argued that, as a matter of law, [Thompson] could not prove the existence of a genuine issue of material fact as to his Jones Act … claims because he did not satisfy the ‘zone of danger’ test established by the United States Supreme Court.” Under the Jones Act, in order to recover for emotional distress damages, a plaintiff must be within a “zone of danger” imposing threat of imminent physical harm. In opposition to Cenac’s motion, Thompson “argued that his deposition testimony demonstrated that there was a factual dispute as to whether he felt threatened and feared for his life.” He further argued mental injury unaccompanied by physical harm was cognizable under the Jones Act.
On May 24, 2019, the lower court granted Cenac’s motion for summary judgment and dismissed Thompson’s claims with prejudice. Thompson then appealed to the Louisiana Court of Appeal, First Circuit. On appeal, Thompson argued that the trial court had erred in weighing evidence and making factual determinations concerning his subjective feelings to determine if he was in the zone of danger. “Thus,” the appellate court wrote, “[Thompson] argue[d] that the trial court erred in dismissing his claims for negligent and intentional infliction of emotional distress under the Jones Act based solely upon a lack of physical impact or injury.”
The Appellate Court’s Ruling
The appellate court ruled that in this case, “it [was] undisputed that the plaintiff sustained no actual physical injury or harm from seeing the noose in the wheelhouse or during his verbal confrontation with the captain.” The court further ruled that “the plaintiff was also objectively within the zone of danger because he was on the tugboat where he was potentially exposed to physical injury or harm by the person or persons who hung the noose.”
Therefore, the court concluded that Thompson’s claim for emotional damages under the “zone of danger” test against Cenac “depend[ed] upon whether he felt threatened with imminent physical impact, and if so, [whether] that threat place[d] him in reasonable apprehension of physical harm.” The court noted that deposition testimony cannot be weighed at the summary judgment stage. “Thus,” the court wrote, “the issue of whether an African-American plaintiff felt threatened for his life upon seeing the noose in the tugboat’s wheelhouse is one that necessarily requires the [trial] court to make a credibility determination.” Consequently, the court held that the trial court’s credibility determination was improper, reversed the summary judgment decision in the company’s favor, and remanded the case for further proceedings.
Employers may want to note that in this case the appellate court found that an isolated incident of a noose hanging in a tugboat was sufficient to support a claim for emotional injury under the Jones Act. Important to the court’s holding was the fact that the African-American employee was confined to work on the boat for the next 28 days at the time of the event. Although this case arose under maritime law, the U.S. Court of Appeals for the Fifth Circuit has held that the display of a noose, even as a single incident, could constitute the type of severe circumstance that would create a hostile work environment under an anti-discrimination law. Specifically, the Fifth Circuit in Hudson v. Cleco Corporation, No. 13-30231 (September 12, 2013), held that “[u]nder the proper circumstances, [displaying a noose] might constitute an ‘extremely serious’ isolated event causing a discriminatory change in the terms and conditions of one’s employment.” Thus, in the context of all-too-common cases involving allegations of nooses and other per se symbols of hatred, the Thompson court’s finding that an employee’s own testimony of emotional harm is sufficient to overcome summary judgment harmonizes the Jones Act with principles developed under employment discrimination laws.