Laday v. Catalyst Technology, et al

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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In this title VII case of claimed same-sex
harassment, Patrick La Day presented
summary judgment evidence that his
supervisor, Willie Craft, made obnoxious
comments about La Day’s sexuality,
inappropriately touched a private part of La
Day’s body, and spat tobacco juice on him;
Craft also had made crude remarks to other
employees and touched them inappropriately.
The district court granted summary
judgment for the defendants on La Day’s
same-sex sexual harassment claim. We
conclude, to the contrary, that La Day

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2
presented a fact question concerning whether
Craft is homosexual and harassed him severely
enough to alter the terms and conditions of
employment. La Day satisfied the test for
same-sex harassment outlined in Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75
(1998), so his title VII claim should go to the
jury. We affirm, however, the dismissal of La
Day’s claims for unlawful retaliation,
intentional infliction of emotional distress
(“i.i.e.d.”), and battery.
I.
A.
Catalyst Technology, Inc. (“Catalyst”),
hired La Day to work as a reactor technician in
November 1996. The three incidents that led
to this suit occurred in March 1998, when La
Day was assigned to work on a job in
Montgomery, Alabama, under Craft’s
supervision.
In the first incident, Craft observed La Day
sitting in a car with La Day’s girlfriend and
saw “passion marks” on La Day’s neck. Ac-
cording to La Day and his girlfriend, Craft ap-
proached them and stated, “I see you got a
girl. You know I’m jealous.”
On a later date, La Day alleges that Craft
approached him from behind while he was
bending down and fondled his anus. La Day
described the contact as similar to “foreplay
with a woman.” La Day turned around
immediately and told Craft not to touch him
that way because “I don’t play like that.”
Craft laughed and walked away. That same
day, La Day reported the incident to his
immediate supervisor. Later that day, Craft
allegedly spit tobacco on La Day’s hard hat
and shirt, stating “this is what I think of you.”
After La Day returned from the
Montgomery job, he refused to report to his
next assignment because Craft was the
supervisor. Catalyst initiated termination
proceedings against La Day.
In May 1998, Catalyst was served with an
Equal Employment Opportunity Commission
complaint that La Day had filed. Catalyst be-
gan an investigation into La Day’s complaint,
headed by Andy Clark, the Vice President for
Human Resources. The investigation revealed
that two other former employees had made
similar complaints against Craft.
Bernard Strange had filed a written
complaint against Craft with Catalyst’s
personnel manager, Charlotte Valentine,
alleging that Craft had asked him to sit on his
lap and told him that he (Strange) had “pretty
lips” and that he could “suck dick” or “suck
my dick.” Valentine arranged a meeting
between Strange and Craft, after which
Strange asked her to destroy the complaint
because “it was a misunderstanding.” Clark
also discovered that Chad Johnson, another
former Catalyst employee, had filed a
complaint claiming that he was “touched in the
area of his genitals by Willie Craft.” The notes
of Clark’s investigation contain detailed
information regarding these two incidents.
After the incidents with Craft, La Day
worked on at least two other projects for
Catalyst, neither of which involved Craft. He
alleges that other Catalyst employees insulted
him and generally made life difficult for him as
a result of his conflict with Craft.
Eventually, La Day resigned from Catalyst
because he believed that he could no longer
trust his fellow employees and claims that he
lost sixty pounds, began drinking heavily, and
experienced other health problems. In Decem-

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3
ber 1998, he was diagnosed with major de-
pressive disorder with anxiety features arising
from work-related issues; in 1999, he was
hospitalized for depression.
B.
La Day sued Catalyst and Craft in state
court, claiming causes of action under title VII
and Louisiana state sex discrimination law, a
state i.i.e.d. claim against Craft, and state tort
law vicarious liability claims against Catalyst.
Catalyst removed the case to the federal
district court, which granted summary
judgment for Catalyst and Craft on all federal
claims and some state claims. The court
declined to exercise supplemental jurisdiction
over the assault and battery claims against
Craft.
II.
A summary judgment is reviewed de novo
under the same standard as applied by the dis-
trict court. King v. Ames, 179 F.3d 370, 373
(5th Cir. 1999). The record is reviewed in the
light most favorable to the nonmoving party,
and the movant is required to “demonstrate
that there are no genuine issues of material
fact.” Id. The court must consider both direct
and circumstantial evidence but may not make
“credibility assessments,” which are the
exclusive province of the trier of fact. Dibi-
dale, Inc. v. Am. Bank & Trust Co., 916 F.2d
300, 307-08 (5th Cir. 1990).
III.
We begin by addressing La Day’s claims
under title VII and Louisiana antidiscrimina-
tion law. Because the relevant Louisiana stat-
ute, LA. REV. STAT. 23:332, is “substantively
similar” t o title VII, the outcome will be the
same under the federal and state statutes. Tra-
han v. Rally’s Hamburgers, 696 So. 2d 637,
641 (La. App. 1st Cir. 1997). We therefore
analyze the issue under the applicable federal
precedents.
A.
1.
Sexual harassment is La Day’s most
important sex discrimination claim. In Oncale,
the Court reversed this circuit and held that
same-sex sexual harassment is actionable
under title VII, but only if the plaintiff can
“prove that the conduct at issue was not
merely tinged with offensive sexual
connotations, but actually constituted
discrimination because of sex.” 523 U.S. at
81 (quotations and ellipses omitted). To avoid
possible misunderstanding, it is important to
note that judicial inquiry into the question
whether a given instance of harassment
constitutes sex-based discrimination is entirely
separate from inquiry into whether the
harasser’s conduct was serious enough to con-
stitute either quid pro quo or hostile
environment harassment.1
In a case of alleged same-sex harassment,
courts first must determine whether the ha-
rasser’s conduct constitutes sex discrimination.
If the answer is “yes,” the court must decide
whether the challenged conduct meets the
applicable standards for either a quid pro quo
or hostile environment claim. For example,
same-sex harassment that is “severe or
pervasive” enough to create a hostile
environment, Casiano, 213 F.3d at 284, might
be excluded from the coverage of title VII
because it was not discriminatory on the basis
of sex. On the other hand, same-sex
1 See Casiano v. AT&T Corp., 213 F.3d
278, 283-84 (5th Cir. 2000) (outlining the dif-
ferences between these two types of
harassment and the methods of proof
appropriate to each).

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4
harassment that is indisputably discriminatory
might not be serious enough to make out
either a quid pro quo or hostile environment
claim.
In Oncale, the Court outlined three ways in
which a plaintiff can show that an incident of
same-sex harassment constitutes sex
discrimination. First, he can show that the
alleged harasser made “explicit or implicit pro-
posals of sexual activity” and provide “credible
evidence that the harasser was homosexual.”
Id. at 80. Second, he can demonstrate that the
harasser was “motivated by general hostility to
the presence of [members of the same sex] in
the workplace.” Id. Third, he may “offer di-
rect, comparative evidence about how the al-
leged harasser treated members of both sexes
in a mixed-sex workplace.” Id. La Day alleges
only the first type.
The present case raises an important issue
of first impression for this court: What kind of
proof constitutes “credible evidence that the
harasser was homosexual”? Id. The Oncale
Court gave no guidance on this point: “The
Court’s focus [in Oncale] was on what the
plaintiff must ultimately prove rather than the
methods of doing so.” Shepherd v. Slater
Steels Corp., 168 F.3d 998, 1009 (7th Cir.
1999).2
Two other circuits, the Seventh and Ninth,
have addressed this issue to a limited degree.3
The Seventh Circuit has held that there was
sufficient evidence of homosexuality to get
past summary judgment where the following
facts were present:
There is evidence in the record sug-
gesting that Jemison's harassment of
Shepherd was borne of sexual attraction.
Recall that the alleged harassment began
with Jemison remarking a number of
times that Shepherd was a “handsome
young man.” Subsequently, in one of
the more graphic encounters between
the two men, Jemison “rubbed himself
into an erection” while Shepherd was
laying on his stomach with cramps, and
Jemison urged Shepherd to turn over,
lest he “crawl up on top of [Shepherd]
and fuck [him] in the ass.” Jemison
remarked to Shepherd another time that
2 This matter apparently is also one of first im-
pression under Louisiana anti-discrimination law,
for we have not been able to discover applicable
post-Oncale Louisiana precedents that address the
issue of proof of the harasser’s homosexuality.
3The issue has also been addressed to an even
(continued...)
3(...continued)
more limited extent in three district court opinions,
two of them unpublished and none of them very
helpful in resolving the present case. See West v.
Mt. Sinai Med. Ctr., 2002 U.S. Dist. LEXIS 6123,
at*5 (S.D.N.Y. Apr. 9, 2002) (holding that there
was not adequate proof of homosexuality where a
supervisor repeatedly made friendly gestures to a
same-sex subordinate, such as bringing her food,
but did not engage in “any hint of sexual
innuendo”); English v. Pohanka, Inc., 190 F.
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
that [the harasser] was gay” and where numerous
co-workers denied this claim); Merritt v. Del. Riv.
Port Auth., 1999 U.S. Dist. LEXIS 5896, at*10
(E.D. Pa. Apr. 20, 1999) (holding that “disputed
facts exist to suggest that [the alleged harasser]
might be sexually oriented towards men” but de-
clining to “recit[e] details” of the evidence sup-
porting this conclusion).

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5
“[a] man can come if he’s fucked in
the ass.” Finally, on the occasion
that Shepherd came to work
complaining of soreness, Jemison
offered to make him feel better by
giving him “a nice hot shower.”
Although none of these incidents
necessarily proves that Jemison is gay,
the connotations of sexual interest in
Shepherd certainly suggest that Jemison
might be sexually oriented toward
members of the same sex.
Id. at 1009-10 (citations omitted, brackets in
original).
In a case with a considerably less
unequivocal fact pattern, the Ninth Circuit
upheld a summary judgment where the alleged
“sexual harassment consisted of, among other
things being grabbed in the crotch and poked
in the anus on numerous occasions, being
forced to look at pictures of naked men having
sex while . . . coworkers looked on and
laughed, being caressed, hugged, whistled and
blown kisses at, and being called ‘sweetheart’
and ‘Muneca.’” Rene v. MGM Grand Hotel,
Inc., 243 F.3d 1206, 1207 (9th Cir.), pet. for
reh’g en banc granted, 255 F.3d 1069 (9th
Cir. 2001). The court held that the plaintiff
“has presented no evidence that any of his
harassers were homosexual, not that they were
in any way motivated by sexual desire. On the
contrary, evidence presented by [the plaintiff]
suggests not that they desired him sexually,
but rather that they sought to humiliate him
because of his sexual orientation.” Id. at 1209.
The plaintiff, in fact, had testified that he
thought he was being harassed “because he is
gay.” Id. at 1207.4
The present case falls somewhere in
between Shepherd and Rene. Craft’s possible
sexual interest in La Day was not as ongoing
and extensive as was that of the alleged harass-
er in Shepherd. Unlike the harasser in
Shepherd, Craft did not explicitly state his de-
sire to have sexual relations with the victim,
nor did he make anywhere near as many phy-
sical gestures suggesting such interest. He did,
however, touch La Day in a sexual manner,
while the harasser in Shepherd did not touch
the plaintiff.
On the other hand, the evidence of
homosexual interest is significantly greater in
this case than in Rene. There is no evidence
that the harassment of La DaySSunlike that of
the plaintiff in ReneSSwas motivated by the
plaintiff’s putative homosexuality or by some
factor other than sexual attraction.5 To the
contrary, Craft seems to have been angered by
La Day’s apparent heterosexuality, as
evidenced by his comment that he was
“jealous” of La Day’s girlfriend.
It is of course possible that Craft was sim-
4 Rene was argued and submitted to the en banc
court on September 25, 2001. The question under
review, according to the Ninth Circuit’s website, is
as follows: “Do numerous sexual assaults of an
openly gay employee by male co-workers over the
course of more than two years of employment
constitute a hostile work environment and
discrimination on the basis of sex, after . . .
Oncale . . .?”
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.

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6
ply mocking La Day; on summary judgment,
however, we must assume the facts to be as
alleged by [the plaintiff].” Oncale, 523 U.S. at
76. Viewed in that light, the remark suggests
that Craft was “jealous” of La Day’s girlfriend
because he had a sexual interest in him. A fact
finder ultimately will have to decide which side
has the greater weight of the evidence.
It is not possible for us to specify all the
possible ways in which a plaintiff might prove
that an alleged harasser acted out of
homosexual interest in him. Nonetheless,
there are two types of evidence that are likely
to be especially “credible” proof that the
harasser may be a homosexual.
The first is evidence suggesting that the
harasser intended to have some kind of sexual
contact with the plaintiff rather than merely to
humiliate him for reasons unrelated to sexual
interest. The second is proof that the alleged
harasser made same-sex sexual advances to
others, especially to other employees. This ap-
proach conforms with the admonition that
“‘[t]he critical issue . . . is whether members of
one sex are exposed to disadvantageous terms
or conditions of employment to which
members of the other sex are not exposed.’”
Oncale, 523 U.S. at 80 (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 25 (1993)
(Ginsburg, J., concurring)). A harasser may
well make sexually demeaning remarks and
putdowns to the plaintiff for sex-neutral
reasons, as in Rene, but he is far less likely to
make sexual advances without regard to sex.6
Here we have evidence of sexual advances
both to the victim and to other employees.
Undoubtedly there is credible evidence of
Craft’s sexual interest in La Day. It is certain-
ly possible that Craft was simply trying to hu-
miliate La Day for reasons unrelated to any
sexual interest and that he is not a homosexual.
When we view the summary judgment
evidence in the light most favorable to La Day
(the nonmovant on summary judgment), how-
ever, there is credible evidence that Craft is a
homosexual and that he was making sexual ad-
vances. His remark that he was “jealous” of
La Day’s girlfriend, combined with his poking
of La Day’s anus, easily is susceptible of that
interpretation. Moreover, Craft’s later
hostility toward La Day, exemplified by his
spitting tobacco at him, plausibly could be
interpreted as anger over La Day’s rejection of
his sexual advances.
Importantly, Strange and Johnson credibly
claimed that Craft had made sexual overtures
to them.7 Thus, La Day’s assertion that Craft
6 The exception may be a bisexual harasser who
is willing to make unwanted advances to both men
and women on an equal basis. The difficult
question of the status of bisexual harassers was not
addressed in Oncale. There is no evidence or claim
(continued...)
6(...continued)
that Craft is a bisexual or that he made advances to
women similar to those he made to La Day. Cf.
Lack v. Wal-Mart Stores, Inc., 240 F.3d 255, 261
(4th Cir. 2001) (upholding summary judgment
where harasser made vulgar sexual remarks and
gestures to male and female employees on an equal
basis).
7 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
within the business records exception to the hear-
say rule. As part of Catalyst’s investigation into
La Day’s allegations against Craft, Clark kept sys-
tematic notes in which he recorded Strange’s state-
ment to Valentine and Thompson’s allegation.
(continued...)

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7
is a homosexual is backed by both types of
evidence that we have outlined.
Craft and Catalyst argue that even if there
is evidence that Craft is a homosexual,
summary judgment should be granted because
there is no proof that Craft made sexual
overtures to La Day. Nonetheless, if the
evidence is viewed in the light most favorable
to La Day, it is reasonable to conclude that
Craft’s touching of La Day’s anus, and his
earlier expressed jealousy toward La Day’s
girlfriend, constituted “explicit or implicit
proposals of sexual activity.” Oncale, 523
U.S. at 80. Accordingly, there is sufficient
proof of Craft’s homosexuality for La Day’s
harassment claim to survive summary
judgment.
2.
a.
Having provided adequate summary
judgment evidence that he was harassed based
on sex by virtue of Craft’s apparent status as a
homosexual, La Day also must show that he
was subjected to either quid pro quo or
“hostile environment” harassment. Casiano,
213 F.3d at 283-84. Under Oncale, it is
sometimes harder to prove that an instance of
harassment was motivated by sex
discrimination in a same-sex situation than in
a circumstance involving alleged opposite-sex
harassment.8 Once sex discrimination has been
proven sufficiently to survive summary
judgment, however, there is no distinction
between same-sex and opposite-sex
harassment with respect to the next stage of
the inquiry: determining whether the
discriminatory action was serious enough to
constitute quid pro quo or hostile environment
harassment.
The issue of quid pro quo harassment must
be considered first. Id. The plaintiff must
show that he suffered a “tangible employment
action” that “resulted from his acceptance or
rejection of his supervisor’s alleged sexual ha-
rassment.” Id. at 283. “A tangible
employment action constitutes a significant
change in employment status, such as hiring,
7(...continued)
Business records such as Craft’s notes may be
admitted as an exception to the hearsay rule if “[a]
memorandum, report, record, or data compilation,
in any form, of acts, events, conditions, opinions,
or diagnoses, made at or near the time by, or from
information transmitted by, a person with
knowledge, if kept in the course of a regularly
conducted business activity, and if it was the
regular practice of that business activity to make
the memorandum, report, record or data
compilation, all as shown by the testimony of the
custodian or other qualified witness.” FED R.
EVID. 803(6). “Whether evidence is admissible
under Rule 803(6) is chiefly a matter of
trustworthiness.” United States v. Wells, 262 F.3d
455, 459-60 (5th Cir. 2001) (quotations omitted).
There is no reason to doubt the
“trustworthiness” of Clark’s notes, and they
undeniably meet the technical requirements of rule
803(6). Indeed, to the extent that Clark, a vice-
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
homosexual advances to employees rather than to
accentuate it. The fact that such evidence is
manifestly present in the notes reinforces our
conclusion that Clark acted in good faith and that
the records he kept are trustworthy.
8 See Oncale, 523 U.S. at 80 (noting that in
some cases, claims of same-sex harassment must
be backed by “credible evidence that the harasser
was homosexual,” even though proof of sexual
orientation is unnecessary in opposite-sex cases).

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8
firing, failing to promote, reassignment with
significantly different responsibilities, or a
decision causing a significant change in
benefits.” Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998).
La Day alleges that Catalyst failed to
promote him to a higher position, despite his
being qualified for it, and that Catalyst “con-
structively discharged” him. The existence of
such a tangible act is, however, in serious
doubt. La Day failed to specify to which pre-
cise position he should have been promoted.
“A tangible employment decision requires an
official act of the enterprise, . . . in most cases
documented in official company records.” Id.
at 762.
There is no evidence that Catalyst ever
made such an “official act” adverse to La
Day’s employment prospects. Id. Even if La
Day could prove the existence of a tangible
employment action, he does not meet the stan-
dards for a quid pro quo claim, because he
failed to demonstrate the necessary causal
“nexus” between his refusal of Craft’s alleged
advances and the claimed adverse actions.
Casiano, 213 F.3d at 283. Although La Day
eventually left Catalyst because he felt he no
longer could work there after the incidents in-
volving Craft, there is no evidence that Craft
or anyone else at Catalyst sought to alter his
job prospects or to refuse him promotion as a
result of his rejection of Craft’s advances.
b.
If the plaintiff fails to provide sufficient ev-
idence of quid pro quo harassment, he must
prove the existence of hostile environment ha-
rassment. This requires a demonstration that
the alleged harassment, if its existence were to
be “proved,” was “severe or pervasive.” Id. at
284.
“‘In order to be actionable under [title VII],
a sexually objectionable environment must be
both objectively and subjectively offensive, one
that a reasonable person would find hostile or
abusive, and one that the victim in fact did
perceive to be so.’” Butler v. Ysleta Indep.
Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998)
(quoting Faragher v. City of Boca Raton, 524
U.S. 775, 787 (1998)). “Whether an
environment meets this standard depends on
‘all the circumstances,’ including the frequency
of the discriminatory conduct; its severity;
whether it is physically threatening or
humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an
employee’s work performance.’” Id. (quoting
Faragher, 775 U.S. at 787).
There is no doubt that Craft’s conduct was
subjectively offensive to La Day andSSat the
very leastSSthere is a disputed question of fact
regarding objective offensiveness under the
circumstances. There is strong evidence sug-
gesting that Craft’s conduct was not the norm
at this particular workplace.9 Furthermore,
Craft’s conduct was physically “humiliating”;
even if not “threatening,” it was arguably se-
vere, and there is a disputed question of fact
whether it unreasonably interfered with La
Day’s work performance. Butler, 161 F.3d at
269. As a result of Craft’s harassment, La
Day claims to have experienced physical and
psychological difficulties, including severe de-
pression, that impaired his ability to work.10
Only the factor of “frequency of the
discriminatory conduct” indisputably cuts in
9 See the discussion, infra, of Roosevelt
Wright’s affidavit.
10 See the description of La Day’s depression
and other health problems, supra part I.

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9
favor of Craft and Catalyst. Butler, 161 F.3d
at 269. But, to survive summary judgment on
a hostile environment claim, a plaintiff need
only show that the harasser’s conduct was
“severe or pervasive.” Casiano, 213 F.3d at
284 (emphasis added). He does not have to
prove both. Given that Craft’s anal touching
and other actions arguably were “severe,” they
need not have been frequent enough to be per-
vasive for La Day’s claim to get past summary
judgment.
Craft’s actions, of course, must be
evaluated with “an appropriate sensitivity to
social context.” Oncale, 523 U.S. at 82. “The
real social impact of workplace behavior often
depends on a constellation of surrounding cir-
cumstances.” Id. at 81-82. For example, rea-
sonably foreseeable “male-on-male horseplay”
is not actionable. Id. at 81. Therefore, “the
objective severity of harassment should be
judged from the perspective of a reasonable
person in the plaintiff’s position, considering
‘all the circumstances.’” Id. at 81 (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993)).
In this context, Craft’s behavior was not
normal in the Catalyst workplace. According
to the affidavit of Catalyst supervisor
Roosevelt Wright, sexual joking is not
common at the firm, and Wright had never
seen any male employee touch another male
worker in a sexual manner.
c.
Despite La Day’s success in providing ade-
quate summary judgment evidence of a hostile
environment, Catalyst could have obtained
summary judgment by establishing an
affirmative defense demonstrating that “(1) [it]
exercised reasonable care to prevent and
correct promptly any such sexual harassment,
and (2) the employee unreasonably failed to
take advantage of any preventive or corrective
opportunities provided by the employer or to
avoid harm otherwise.” Id. Catalyst has not
briefed this issue, however, and “contentions
not briefed are waived and will not be
considered on appeal.” Zeno v. Great Atl. &
Pac. Tea Co., 803 F.2d 178, 180 (5th Cir.
1986). La Day provided sufficient evidence of
a hostile environment to survive summary
judgment. A fact finder will have to sort
through all the evidence to see whether there
was harassment and, if so, whether Catalyst
presents sufficient evidence to establish a
defense to it.
B.
La Day assert s a retaliation claim. “A
plaintiff establishes a prima facie case for un-
lawful retaliation by proving (1) that she
engaged in activity protected by title VII,
(2) that an adverse employment action
occurred, and (3) that a causal link existed
between the protected activity and the adverse
employment action.” Long v. Eastfield
College, 88 F.3d 300, 304 (5th Cir. 1996).
Even if we assume that La Day suffered
“adverse employment action[s],” there is no
evidence of a “causal link” between any such
action and La Day’s complaints against Craft.
Id. Therefore, we affirm the summary
judgment in favor of Catalyst on La Day’s
retaliation claim.
IV.
La Day has asserted a state law i.i.e.d.
claim against Craft. Under Louisiana law, La
Day must prove “(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

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10
certain or substantially certain to result from
his conduct.” White v. Monsanto Co., 585
So. 2d 1205, 1209 (La. 1991).
Even if we assume, arguendo, that La
Day’s claim meets the first two prongs, it runs
afoul of the third. There is no evidence that
Craft intended to inflict severe distress or that
he knew such distress inevitably would occur.
Although it certainly was foreseeable that se-
vere emotional distress might result from
Craft’s egregious conduct, it was not “certain
or substantially certain” to do so. Id. Another
person might have been able to shake off
Craft’s obnoxious advances with little or no
lasting distress, or at least without severe con-
sequences.11
In a case arising from the same incidents
addressed in the present litigation, a Louisiana
court found against La Day, holding that
Craft’s conduct did not cause him
“extraordinary mental stress.” La Day v.
Catalyst Tech., Inc., 818 So.2d 64, 68 (La.
App. 1st Cir. 2001). Although that case
involved a workers’ compensation claim rather
than a claim of i.i.e.d., the court found that the
same standard applied and explicitly cited
White as the basis for its holding in favor of
Catalyst. Id. at 68 n.5.
Thus, we must conclude that a Louisiana
court would not find in La Day’s favor here.
“In an instance of interpreting state law, the
goal of the federal courts is to try to get the
same result that would be reached in the state
courts.” Oliva v. Pan Am. Life Ins. Co., 448
F.2d 217, 221 (5th Cir. 1971). We therefore
affirm the summary judgment on the i.i.e.d.
claim.
V.
La Day asserts a state law tort cl aim that
Catalyst is vicariously liable for Craft’s alleged
torts against him, including assault, battery,
and i.i.e.d. Under Louisiana law, “an employer
is liable for a tort committed if, at the time, the
employee was acting within the course and
scope of his employment.” Baumeister v.
Plunkett, 673 So. 2d 994, 996 (La. 1996).
Louisiana courts consider four factors in
determining whether this standard for vi-
carious liability is met:
(1) whether the tortious act was
primarily employment rooted;
(2) whether the violence was reasonably
incidental to the performance of the em-
ployee’s duties;
(3) whether the act occurred on the em-
ployer’s premises; and
(4) whether it occurred during the hours
of employment.
Id. at 996-97.
La Day’s claim meets the third and fourth
factors; the alleged tortious conduct occurred
on Catalyst’s premises during working hours.
It undeniably fails the first two prongs,
however. Craft’s harassment of La Day was
certainly not “primarily employment rooted”
and was not “reasonably incidental to the
performance of [Craft’s] duties. Id. Meeting
the third and fourth prongs is not in and of
itself sufficient to sustain a claim of vicarious
11 Cf. White, 585 So. 2d at 1210 (stressing that
“[t]he conduct must be intended or calculated to
cause severe emotional distress and not just some
less degree of fright, humiliation, embarrassment,
worry, or the like”).

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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”).

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