Johnson v. Hospital Corp. of America (767 F. Supp. 2d 678, 2011)

Citations

767 F. Supp. 2d 678

Full opinion text

MEMORANDUM RULING

REBECCA F. DOHERTY, District Judge.

Pending before the Court are two motions: (1) Motion for Summary Judgment [Doc. 62] filed by defendant HCA, Inc., d/b/a Hospital Corporation of America (“HCA”), and (2) Motion for Summary Judgment [Doc. 59] filed by defendant Dauterive Hospital (“Dauterive”). For the following reasons, HCA’s motion for summary judgment is GRANTED, and all of plaintiffs claims against HCA are DISMISSED WITH PREJUDICE. It is further ordered that Dauterive’s motion for summary judgment is GRANTED IN PART and DENIED IN PART.

I. Factual and Procedural Background

The instant lawsuit alleges claims for racial discrimination, harassment, and retaliation arising out of an alleged employment relationship between the plaintiff, a black female nurse, and the defendant corporations, Dauterive Hospital and HCA, Dauterive’s parent company. In August 2007, plaintiff was employed as a nurse at Dauterive Hospital. On August 25, 2007, during her employment, plaintiff filed an EEOC Charge of Discrimination against Dauterive alleging race discrimination and retaliation. Plaintiff resigned her position at the hospital on November 2, 2007. HCA had no involvement in plaintiffs EEOC charges and was not named as a respondent to those charges. On October 27, 2008, the EEOC issued plaintiff a Dismissal and Notice of Rights letter. Pursuant to the Notice, plaintiff was required to file suit in federal court within 90 days of receiving the Notice.

On January 23, 2009, plaintiff filed suit against HCA, alleging she was subjected to racial discrimination and retaliation in violation of Title VII (42 U.S.C. § 2000e, et seq.), Louisiana’s Employment Discrimination Law (La.Rev.Stat. § 23:301, et seq.), and Louisiana’s Whistle-blower Statute (La.Rev.Stat. § 23:967, et seq.). Specifically, plaintiff alleges she was the only black registered nurse in Dauterive’s emergency room; she was demoted from the position of charge nurse to staff nurse on April 27, 2007; this demotion resulted in a reduction in her wages; a Caucasian nurse with fewer years of experience received a larger raise than she did; the emergency room director, a Caucasian, purposefully understaffed plaintiffs shifts and excluded her from opportunities to work two-day weekends; and Caucasian co-workers provided a hostile work environment after plaintiff filed her EEOC Charge by demeaning and intimidating plaintiff in conferences and subjecting her to unfair evaluations. Plaintiff alleges the discrimination, harassment, and retaliation caused her severe emotional distress, mental anguish, humiliation, embarrassment, and pain and suffering. Additionally, plaintiff alleges on August 17, 2007, she attended Dauterive’s Employee Assistance Program seeking counseling for the stress she allegedly experienced, and on September 17, 2007, plaintiff requested a transfer that was never granted. Plaintiff alleges she felt coerced and compelled to resign from her position at the hospital on November 2, 2007. Additionally, plaintiff alleged a claim for defamation, contending two co-workers submitted documentation to the hospital’s administration accusing plaintiff of timesheet fraud during May 2007 and October 2007. Plaintiffs original Complaint does not name Dauterive as a defendant. However, on March 26, 2009, more than 150 days after receiving her right to sue letter, plaintiff filed a First Amended and Supplemental Complaint in this Court [Doc. 2], adding Dauterive as a defendant to the litigation. Plaintiff served her First Amended and Supplemental Complaint on HCA and Dauterive, through CT Corporation, on March 27, 2009.

The parties have already engaged in one extensive round of dispositive motions. Defendant HCA previously filed a Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment [Doc. 16], seeking dismissal of plaintiffs racial discrimination, harassment, and retaliation claims under Title VII, plaintiffs state law discrimination, harassment, and retaliation claims under La.Rev.Stat. § 23:301, et seq., and plaintiffs claims under Louisiana’s Whistleblower Statute, La.Rev.Stat. § 23:967, on grounds HCA was not plaintiffs “employer.” Additionally, defendant Dauterive previously filed a Motion to Dismiss seeking “to dismiss all of the Plaintiffs claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6)” on grounds plaintiffs claims have prescribed.

Before this Court addresses the specifics of its rulings on the previous motions filed by the parties, this Court sets forth and clarifies the claims that were pending before this Court at the time those motions were ruled on. Specifically, the plaintiff has alleged claims falling under three “categories”: (1) plaintiffs discrimination, harassment, and retaliation claims alleged under Title VII, which include claims for constructive discharge, forced resignation, and denial of transfer; (2) plaintiffs discrimination, harassment, and retaliation claims alleged under Louisiana’s Employment Discrimination law, La.Rev.Stat. § 23:301, et seq., which also include claims for constructive discharge, forced resignation, and denial of transfer; and (3) plaintiffs claims for defamation and retaliation alleged under Louisiana’s Whistleblower Statute, La.Rev.Stat. § 23:967, et seq. All three “categories” of claims are alleged against both defendants.

Each defendant—Dauterive and HCA— previously filed a motion to dismiss. In its previously-filed motion to dismiss, Dauterive moved to dismiss plaintiffs Title VII claims against it on grounds the foregoing claims had prescribed. This Court agreed and dismissed plaintiffs Title VII claims— alleged against Dauterive—with prejudice, as prescribed.

Additionally, Dauterive moved to dismiss plaintiffs state law claims for discrimination, harassment, and retaliation, alleged under Louisiana’s Employment Discrimination law, La.Rev.Stat. § 23:301, et seq., including plaintiffs claims for constructive discharge, forced resignation, and denial of transfer, on grounds the foregoing claims had prescribed and on grounds the plaintiff had not provided sufficient notice to Dauterive of the pending claims before filing suit, a pre-requisite to filing suit that exists under Louisiana law. While this Court concluded the plaintiff had not provided sufficient notice of her constructive discharge and forced resignation claims, and those claims were, therefore, dismissed for failure of the plaintiff to comply with the notice requirements of Louisiana employment discrimination law, the Court nevertheless concluded to the extent the plaintiff alleged additional discrimination, harassment, and retaliation claims, this Court could not determine whether such claims were prescribed. Specifically, the Court concluded while some of the claims could have prescribed— i.e., those that arose before August 25, 2007—other claims that arose after August 25, 2007 might well not have prescribed. Because Dauterive had failed to specifically identify which “claims” it sought to have dismissed on prescription grounds and whether those claims arose before or after the plaintiff filed her EEOC charge, the Court denied Dauterive’s motion to dismiss plaintiffs state law claims on prescription grounds.

Finally, Dauterive moved to dismiss plaintiffs state law claims for retaliation and defamation against two Dauterive employees, alleged under Louisiana’s Whistle-blower Statute, La.Rev.Stat. § 23:967, et seq., on grounds the foregoing claims had prescribed. This Court agreed, noting the plaintiff had not specifically opposed that portion of Dauterive’s motion, and the foregoing claims were dismissed with prejudice. See Memorandum Ruling, Doc. 30.

With respect to HCA’s motion, which only dealt with the issue of whether HCA was plaintiffs employer, this Court found there were genuine issues of material fact that warranted further discovery and, therefore, denied the motion.

With the foregoing in mind, this Court now turns its attention to the second round of dispositive motions filed by the parties. In its pending motion for summary judgment, HCA argues discovery has been completed and there are no genuine issues of material fact for trial concerning HCA’s employer status. Specifically, HCA argues it is not plaintiffs employer under Title VII or Louisiana state law, and therefore, there can be no liability against HCA for any claims asserted by plaintiff against HCA. In its motion for summary judgment, Dauterive seeks dismissal of plaintiffs denial of transfer claim alleged under Louisiana law, as well as plaintiffs state law claims of discrimination, harassment, and retaliation. In the instant motion, Dauterive separates plaintiffs state law claims into two categories—those arising prior to August 25, 2007, the date of plaintiffs first contact with EEOC (on grounds the claims that pre-date August 25, 2007 are prescribed), and those that post-date August 25, 2007 (on grounds those claims have no merit).

For the following reasons, HCA’s Motion for Summary Judgment is GRANTED, and Dauterive’s Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART.

II. Summary Judgment Standard

“A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof.” Fed. R. Civ. Proc. 56(b). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. Proc. 56(c).

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response by affidavits of-as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Fed. R. Civ. Proc. 56(e).

As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994):

When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Id. at 322, 106 S.Ct. 2548; see also, Moody v. Jefferson Parish School Board, 2 F.3d 604, 606 (5th Cir.1993); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir.1991). Only when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party” is a full trial on the merits warranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Supreme Court has instructed:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Where no such showing is made, “[t]he moving party is ‘entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.”

... In ruling upon a Rule 56 motion, “a District Court must resolve any factual issues of controversy in favor of the non-moving party” only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from “assuming” that general averments embrace the “specific facts” needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment “shall be entered” against the nonmoving party unless affidavits or other evidence “set forth specific facts showing that there is a genuine issue for trial.” The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side’s case to demand at least one sworn averment of that fact before the lengthy process of litigation continues.

Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

The Fifth Circuit has further elaborated:

[The parties’] burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence. We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.... [S]ummary 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.

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citations and internal quotations omitted).

Finally, in evaluating evidence to determine whether a factual dispute exists, “credibility determinations are not part of the summary judgment analysis.” Id. To the contrary, “in reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached.” Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001).

III. Law and Analysis

A. HCA’s Motion for Summary Judgment

HCA seeks dismissal of plaintiffs racial discrimination, harassment, and retaliation claims under Title VII, plaintiffs state law discrimination claims under La.Rev.Stat. § 23:301, et seq., and plaintiffs claims under Louisiana’s Whistleblower Statute, La. Rev.Stat. § 23:967, on grounds such claims are only properly asserted against an “employer,” and HCA was not plaintiffs “employer” at the time of plaintiffs allegations. Rather, HCA contends it is Dauterive Hospital’s ultimate parent corporation and it does not own or operate Dauterive Hospital. HCA contends it did not compensate the plaintiff or control the terms of her employment, and there is no evidence HCA and Dauterive were plaintiffs joint employers.

In response, plaintiff asserts this Court has already determined there are genuine issues of material fact with respect to the issue of whether HCA was plaintiffs employer for purposes of her Title VII and state law claims against HCA. Plaintiff attempts to incorporate its opposition to HCA’s first-filed Motion to Dismiss— which brief, this Court notes, is not tailored to the specific arguments advanced by HCA in the instant motion—in response to the instant motion for summary judgment.

While the plaintiff is correct that this Court previously ruled there were genuine issues of material fact regarding whether HCA is plaintiffs employer pursuant to Title VII and Louisiana employment discrimination law, the precise ruling of this Court was that further discovery was warranted on this issue. HCA argues the necessary discovery has been conducted and elucidates the absence of a genuine issue for trial. Thus, to be precise, at no time did this Court rule HCA was foreclosed from presenting evidence and argument that it is not the plaintiffs employer, but rather, simply ruled discovery on that issue could take place.

In its motion for summary judgment, HCA argues plaintiffs contention that HCA was her employer is based on the following “assumptions,” all of which HCA refutes:

• HCA paid Dauterive’s bills

• HCA employed Alan Fabian, Dauterive’s CEO

• HCA employed Neal Manuel, Director of Surgical Services at the Regional Medical Center of Acadiana

• HCA “controlled [plaintiffs] schedule” because Mr. Fabian sent out an email from HCA on one occasion stating pick-up shifts would have to be approved.

• Neal Manuel “hops” from HCA hospitals and allegedly stated he gave the “company” 20 years of service

• Candace Frioux’s and Michele Broussard’s email address end in “HCA”

• HCA evaluated plaintiffs performance and controlled her transfer requests through Mr. Manuel, Ms. Broussard, and Ms. Frioux because they had HCA email addresses and were “very close.”

In support of its motion, HCA argues it did not pay Dauterive’s bills; did not employ Alan Fabian, Dauterive’s CEO; did not employ Neal Manuel, Dauterive’s Director of Surgical Services at the Regional Medical Center of Acadiana, an HCA facility; did not control plaintiffs transfer request through Candace Frioux, Dauterive’s emergency room director and plaintiffs supervisor, or Michelle Broussard, Dauterive’s HR Director; and did not pay plaintiffs 401K plan. Additionally, HCA argues there is no evidence HCA controlled plaintiffs employment in any manner. Therefore, HCA contends it is entitled to judgment in its favor on all of plaintiffs claims against it as a matter of law.

In response, plaintiff argues evidence gathered during discovery establishes HCA’s “control of Dauterive,” to wit:

• “Neal Manuel’s chain of command ends at HCA”

• The “employee grievance procedure” provided that employees complain to HCA

• “Alan Fabian’s chain of command also ends at HCA”

• “HCA directs Dauterive regarding its ethics and compliance program”

• New employees receive the HCA code of conduct

• Dauterive’s acknowledgment card for receipt of the code of conduct by its employees is the same as HCA’s

• The Securities and Exchange Commission report submitted by HCA states that it operates 169 hospitals

• The SEC Report also states the term “HCA” 'refers to all affiliated hospitals as well

• Plaintiffs 401K was “through HCA”

• Defendant Dauterive’s name seems to be used interchangeably with

• HCA Dauterive HCA conducted job quality surveys at Dauterive

• Employees of HCA’s affiliated hospitals refer to themselves as being employed by HCA

• Employees within the HCA network of hospitals often work at, and are shared with, multiple facilities within the network.

• Employees easily transfer from one facility to another within the HCA network.

Before this Court addresses the specific evidence presented by the plaintiff, this Court will address the legal standard to be applied in this matter in light of the fact the plaintiff alleges HCA was her employer for purposes of both federal and state law.

Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year.” 42 U.S.C. § 2000e(b). Based on the foregoing, HCA characterizes “employer” as the entity that provides compensation to or pays its employees, arguing Title VII’s definition of employer is “similar” to Louisiana’s definition of employer, which follows:

“Employer” means a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. “Employer” shall also include an insurer, as defined in R.S. 22:46, with respect to appointment of agents, regardless of the character of the agent’s employment ...

La.Rev.Stat. § 23:302(2) (West 2009).

The jurisprudence, however, shows the Title VII and Louisiana state law definitions of “employer” for purposes of employment discrimination cases are quite different. Although the statutory definition of “employer” under Title VII focuses on the number of employees a company employs and compensates, the Fifth Circuit has held the term “employer” as used in Title VII of the Civil Rights Act was meant to be liberally construed. Trevino v. Celanese Corp., 701 F.2d 397, 403 (5th Cir.1983). Thus, the Fifth Circuit has held “superficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer.” Trevino, 701 F.2d at 403. The factors considered in determining whether distinct entities constitute an integrated enterprise are: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Id. at 403-04. The Fifth Circuit and other courts applying this four-part standard in Title VII and related cases have focused on the second factor: centralized control of labor relations. Id. at 407. The critical question that courts ask with regard to this factor is: “What entity made the final decisions regarding employment matters related to the person claiming discrimination?” Id.

In the context of parent companies and their subsidiaries, however, the Fifth Circuit has held evidence establishing common management and ownership between the parent company and its subsidiary— alone—is insufficient to establish single employer status. In Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 778 (5th Cir. 1997), the Fifth Circuit explained “[t]he doctrine of limited liability creates a strong presumption that a parent corporation is not the employer of its subsidiary’s employees.” In Lusk, the plaintiff, a former employee who had been terminated in a reduction in force, brought an action against her former employer and its parent corporation under the Age Discrimination in Employment Act (“ADEA”). The district court granted the parent corporation’s motion for summary judgment on the issue of “single employer” status. On appeal, the Fifth Circuit noted:

Only evidence of control suggesting a significant departure from the ordinary relationship between a parent and its subsidiary-domination similar to that which justifies piercing the corporate veil-is sufficient to rebut this presumption, see Johnson [v. Flowers Industries, Inc.], 814 F.2d [978] at 981 [ (4th Cir. 1987) ], and to permit an inference that the parent corporation was a final decision-maker in its subsidiary’s employment decisions.

Id. at 778 (emphasis added).

The Fifth Circuit went on to state:

Common management and ownership are ordinary aspects of a parent-subsidiary relationship. A parent corporation’s possession of a controlling interest in its subsidiary entitles the parent to the normal incidents of stock ownership, such as the right to select directors and set general policies, without forfeiting the protection of limited liability. Baker v. Raymond Int’l, Inc., 656 F.2d 173, 180-81 (5th Cir.1981). Thus, courts have recognized that the mere existence of common management and ownership are not sufficient to justify treating a parent corporation and its subsidiary as a single employer. See, e.g., Frank [v. U.S. West, Inc.], 3 F.3d [1357], at 1364 [ (10th Cir.1993) ]; Rogers [v. Sugar Tree Products, Inc.], 7 F.3d [577] at 583 [ (7th Cir.1993) ]; Johnson [v. Flowers Industries, Inc.], 814 F.2d [978] at 980-82 [ (4th Cir.1987) ]. Some nexus to the subsidiary’s daily employment decisions must be shown. See Schweitzer [v. Advanced Telemarketing Corp.], 104 F.3d [761] at 765 [ (5th Cir.1997) ].

The appellants argue that they established this nexus with evidence of interrelated operations and Nil’s involvement in the RIF plan. The interrelation of operations element of the single employer test ultimately focuses on whether the parent corporation excessively influenced or interfered with the business operations of its subsidiary, that is, whether the parent actually exercised a degree of control beyond that found in the typical parent-subsidiary relationship. Johnson, 814 F.2d at 981-82; see also Herman v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 971, 60 F.3d 1375, 1383-84 (9th Cir. 1995); Rogers, 7 F.3d at 582; Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th Cir.1983). Thus, for example, the fact that Nil (like any other parent corporation) ultimately benefitted from the activities of its subsidiaries, including the restructuring of FoxMeyer Drug’s sales force, is irrelevant to whether their operations were interrelated. See Frank, 3 F.3d at 1362; Rittmeyer v. Advance Bancorp, Inc., 868 F.Supp. 1017, 1022 (N.D.Ill.1994). “Attention to detail,” not general oversight, is the hallmark of interrelated operations. See Johnson, 814 F.2d at 982.

Along these lines, relevant factors suggesting the existence of interrelated operations include evidence that the parent: (1) was involved directly in the subsidiary’s daily decisions relating to production, distribution, marketing, and advertising; (2) shared employees, services, records, and equipment with the subsidiary; (3) commingled bank accounts, accounts receivable, inventories, and credit lines; (I) maintained the subsidiary’s books; (5) issued the subsidiary’s paychecks; or (6) prepared and filed the subsidiary’s tax returns.

Id. (emphasis added). In Lusk, the court went on to note “[t]his is not to say, of course, that the existence of any of these factors is alone dispositive of single employer status or even a finding of interrelated operations.” 129 F.3d at 778.

In contrast, Louisiana’s definition of employer focuses on the issue of which entity pays the employee and there is no corresponding Louisiana jurisprudence holding Louisiana’s focus in the context of employer status is the issue of control, as it is under the federal scheme. Indeed, it appears the Fifth Circuit has never squarely addressed this issue, but federal courts applying Louisiana law and Louisiana state courts have consistently held the definition of “employer” under Louisiana law for purposes of employment discrimination cases has been specifically defined, and to satisfy the definition of employer under Louisiana law, one must:

(1) receive services from an employee and return give compensation to that employee; and (2) meet the requisite number of employees prescribed by the statute. La.Rev.Stat. 23:302(2).

Seal v. Gateway Companies, Inc., 2002 WL 10456, *4 (E.D.La.2002) (J. Englehardt); see also Hornsby v. Enterprise Transportation Co., 987 F.Supp. 512, 515 (M.D.La.1997) (J. Polozola) (interpreting La.Rev.Stat. § 23:1006, which has been repealed, but which, along with La.Rev.Stat. § 51:2231, et seq., also repealed, forms the basis of the Louisiana Employment Discrimination Law, La.Rev.Stat. § 23:301, et seq.); Duplessis v. Warren Petroleum, Inc., 672 So.2d 1019 (La.App. 4th Cir. 1996); Langley v. Pinkerton’s Inc., 220 F.Supp.2d 575 (M.D.La.2002).

Noted the Court in Duplessis:

Although the test in Louisiana to determine if an employer-employee relationship exists relates to “right of control,” the legislature gave “employer” a specific definition which controls in an action for intentional discrimination in employment. La. R.S. 23:1006. This Court considered whether the defendant paid the plaintiffs wages and withheld federal, state, unemployment or social security taxes from his check. Onyeanusi v. Times-Picayune Publishing Corp., 485 So.2d 622 (La.App. 4th Cir.1986).

672 So.2d at 1022, cited in Seal, 2002 WL 10456, *4.

Considering the foregoing, this Court concludes under Louisiana employment discrimination law, this Court should focus more closely upon whether the plaintiff has presented evidence that HCA paid the plaintiff, rather than the issue of control, to determine whether HCA is plaintiffs “employer” for purposes of plaintiffs state law claims of discrimination, harassment, and retaliation.

1. Employer Status under Title YII

In the instant case, HCA has presented evidence that it did not have control over plaintiffs employment at Dauterive, arguing HCA did not pay Dauterive’s bills; did not employ Mr. Fabian, Dauterive’s CEO; did not employ Neal Manuel, a coworker of the plaintiff; did not control plaintiffs transfer request through Ms. Frioux (Dauterive’ emergency room director and plaintiffs supervisor) or Ms. Broussard (Dauterive’s HR Director); and did not pay plaintiffs 401K plan. This Court concludes HCA has met its initial burden of showing there is no genuine issue of material fact with respect to this issue, and the burden then shifts to the plaintiff to produce evidence or designate specific facts showing the existence of a genuine issue for trial. This Court will now evaluate the evidence presented by plaintiff to determine whether she has satisfied her burden of producing specific facts showing the existence of a genuine issue for trial. After review of plaintiffs brief and her attachments, this Court finds the “evidence” does not exist in the location cited by the plaintiff; does not address the issue of “control” by HCA over Dauterive Hospital; or does not warrant a finding of control pursuant to the jurisprudence.

For example, plaintiff argues the “employee grievance procedure”—a phrase that is not defined or explained and which lacks the key information of which employee plaintiff is referring to (ie., Dauterive employees? HCA employees?)—“provided that employees complain to HCA.” Plaintiff cites this Court to the deposition of Neal Manuel, pp. 74 and 75 and “3”, in support of this argument. However, pages 74 and 75 of Mr. Manuel’s deposition do not discuss grievance procedures, and this Court does not know what plaintiff is referring to when she cites to “3.” To the extent the plaintiff intends to cite this Court to Exhibit 3, attached to her motion, this Court notes Exhibit 3 is a three-page, single spaced document entitled “Dauterive Hospital Employee Assistance Program.” This Court has not been directed to any specific portion of this document that supports the plaintiffs argument that “employees (which further begs the question, employees of which company?) complain to HCA.”

Additionally, plaintiff argues “employees of HCA affiliated hospitals refer to themselves as being employed by HCA.” To support this, the plaintiff cites the deposition testimony of Alan Fabian, pages 64-65. Nowhere on these pages does it indicate “employees ” of “HCA affiliated hospitals” refer to themselves as “being employed by HCA.” Mr. Fabian does, however, testify as follows:

Q: Have you ever sat in on this orientation when the discrimination, harassment or retaliation was being presented?

A: Not recently.

Q: Well, when did you?

A: When I was a new employee with HCA.

Q: When was that?

A: When I moved—2001, when I moved to the Southwest Medical Center, an affiliate of HCA.

The foregoing testimony might, at best, establish that Mr. Fabian, on the occasion of his deposition, referred to himself as an employee of HCA. However, this Court concludes the foregoing testimony does not support plaintiffs argument that “employees ” of HCA-affiliated hospitals “refer to themselves as being employed by HCA.”

Similarly, the plaintiff argues an SEC report states “the term ‘HCA’ refers to all ‘affiliated hospitals’ as well.” To support this argument, the plaintiff attaches a four-page, single-spaced document entitled “Securities and Exchange Commission Form 10-K,” apparently pertaining to “HCA, Inc.,” with no further description or discussion.

Unsubstantiated assertions are not competent summary judgment evidence. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). The plaintiff simply has not provided sufficient information by which this Court can evaluate and assess the impact of this specific piece of evidence in making its determination.

Additional evidence presented by plaintiff similarly does not satisfy plaintiffs burden. For instance, plaintiff argues Dauterive’s name “seems to be used interchangeably with HCA Dauterive.” In support of this assertion, the plaintiff cites to and attaches a document entitled “Profile Series Employment Report,” a, confidential employment report containing information about the plaintiff. On the first page of the report, there is a box containing the words “HCA Dauterive Hospital” and an address for “Attn: Trisha J. Tatman.” No additional explanatory information concerning this report is provided.

The Fifth Circuit has stated:

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citations and internal quotations omitted). Plaintiffs argument that the terms “Dauterive” and “HCA Dauterive” “seem to be used interchangeably” is simply not sufficiently substantiated by the plaintiff to create a genuine issue for trial.

Additionally, certain evidence presented by plaintiff does not address or otherwise evidence the requisite control by HCA over Dauterive. Indeed, the following “evidence”—which is set forth in a list format with no discussion does not provide this Court with sufficient information regarding the degree of control exerted by HCA over Dauterive sufficient to find that the two corporations are joint employers of the plaintiff:

• Neal Manuel’s chain of command ends at HCA

• Alan Fabian’s chain of command also ends at HCA.

• “new employees” (again, this begs the question—“new employees” of which corporation? Dauterive Hospital? HCA?) receive the HCA code of conduct

• Dauterive’s “acknowledgment card” for the receipt of the code of conduct by its employees is the same as HCA’s

• the SEC report states HCA “operates” 169 hospitals

• the term “HCA” refers to all “affiliated hospitals” as well (“as well” as what?)

• HCA conducted job quality surveys at Dauterive

The Fifth Circuit has made clear a certain degree of interrelation of operations is inherent in the parent-subsidiary relationship. Thus, this element of the single employer test ultimately focuses on whether the parent corporation excessively influenced or interfered with the business operations of its subsidiary, that is, whether the parent actually exercised a degree of control beyond that found in the typical parent-subsidiary relationship. The fact that “new employees” (presumably, of Dauterive) receive a copy of the parent company’s code of conduct and that Dauterive’s “acknowledgment card” for the receipt of the code of conduct by its employees is the same as HCA’s “acknowledgment card” do not demonstrate excessive influence or interfere by HCA with the business operations of Dauterive. Nor does the fact that the SEC report states HCA “operates” 169 hospitals or conducted job quality surveys at Dauterive establish the requisite control. Finally, the fact that two employees of Dauterive can technically trace their supervisors all the way to the CEO of HCA, without demonstrating that the CEO of HCA has any control whatsoever over the work performed by these employees, does not establish the requisite control.

Again, this Court must focus on evidence of control suggesting a significant departure from the ordinary relationship between a parent and its subsidiary—domination similar to that which justifies piercing the corporate veil—and which permits an inference that the parent corporation was a final decision-maker in its subsidiary’s employment decisions. Lusk, 129 F.3d at 778. This Court concludes the foregoing evidence preferred by plaintiff does not suggest such control.

For example, plaintiff argues her 401K was “through HCA.” This would, at first blush, appear to be a disputed fact, because HCA contends it did not pay plaintiffs 401K plan. Although HCA acknowledges the “HCA Rewards for Healthy Work Environment” is part of HCA affiliates’ benefits program that include a 401K plan, HCA contends Dauterive Hospital Corporation—not HCA—is responsible for all of the funds that are matched when an employee participates in the 401K program, and all compensation provided for the retirement portion of the plan is the responsibility of Dauterive. In response, all the plaintiff offers to refute the foregoing is a document entitled “Quarterly 401K Plan Statement,” in which the “Account Summary” indicates the plan at issue is “The HCA 401(k) Plan.” The plaintiff offers no evidence that HCA funded the 401K plan. Therefore, the plaintiffs “evidence” does not establish the requisite control.

Similarly, plaintiff argues “HCA directs Dauterive regarding its ethics and compliance program.” The cited testimony supporting this argument is the testimony of Alan Fabian, Dauterive’s CEO, who testified “our parent company provides the hospitals direction on the ethics and compliance program.” However, a parent company providing “guidance” to a subsidiary on ethics and compliance matters does not establish the requisite degree of control. In Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606 (5th Cir.1999), the court was faced with the issue of whether parent company Anheuser-Busch and subsidiary Precision were “single employers” for purposes of Title VII. The plaintiff argued the following evidence established that Anheuser-Busch was her employer: (1) Anheuser-Busch approved Precision’s awards for accident-free work records; (2) Skidmore received a corporate letter of commendation that referred to her as an Anheuser-Busch employee; (3) Anheuser-Busch gave production directives to Precision; (4) an Anheuser-Busch vice-president held meetings with Precision’s employee safety team and presided over presentations on expansion and purchase of new presses; and (5) legal counsel at Anheuser-Busch handled Skidmore’s EEOC charge and harassment suit. Skidmore, 188 F.3d at 617. In rejecting the plaintiffs argument, the Fifth Circuit noted:

The evidence to which Skidmore points does not support a finding that Anheuser-Busch was her employer for Title VII purposes. The primary Trevino factor concerns which entity made the employment decisions regarding Skid-more. Brian Ashworth, Precision’s director of human resources, testified that, although it paid an Anheuser-Busch department to act as third-party administrator of its benefit programs, Precision offered its own employee benefit packages. He testified that Precision hired, fired, promoted, and demoted its own employees without consulting AnheuserBusch, and that Precision negotiated its own union contracts without consulting Anheuser-Busch. Skidmore’s evidence does not contradict Ashworth’s testimony. Nor has Skidmore shown Anheuser-Busch participated in Precision’s labor decisions, or that Anheuser-Busch and Precision intermingled their operations and management functions. The district court therefore erred in failing to grant judgment as a matter of law to Anheuser-Busch on Skidmore’s claim for sexual harassment.

Id. at 617. Thus, the Fifth Circuit considered and rejected the plaintiffs assertion that the parent company’s production directives to its subsidiary established the requisite control in the absence of other evidence showing the parent company made employment decisions regarding the plaintiff. Indeed, the Fifth Circuit has held “[a] parent corporation’s possession of a controlling interest in its subsidiary entitles the parent to the normal incidents of stock ownership, such as the right to select directors and set general policies, without forfeiting the protection of limited liability.” Baker v. Raymond Int’l, Inc., 656 F.2d 173, 180-81 (5th Cir.1981) (emphasis added).

Similarly, in the instant case, the fact that HCA provides directive to its subsidiaries, including Dauterive, concerning ethics and compliance, does not mandate that HCA forfeit the protection of limited liability.

Finally, this Court addresses the issue of “shared employees.” Plaintiff argues “employees within the HCA network of hospitals often work at, and are shared with, multiple facilities within the network.” This Court notes evidence of “shared employees, services, records, and equipment [of the parent company] with the subsidiary” can establish the requisite degree of control. However, the foregoing is not what the plaintiff is arguing. In the cited testimony that plaintiff offers to support this argument, Mr. Fabian testified as follows:

Q: Are you familiar with the term “shared employee”?

A: I am.

Q: What does that mean?

A: That’s an employee who may work at multiple facilities in our network.

Q: Who pays the shared employee?

Objection, form.

A: In our system, it’s the home facility.

Q: And how is that determined?

A: It’s where the employee is—what we consider their home hospital.

Q: And who determines which is the home hospital of the shared employee?

A: It normally is determined by the employee. It’s the hospital that they work at.

Q: So the employee tells his employer which of the facilities is going to be his home facility?

A: Normally it’s the facility that the employee works at first and continues to work at, because you will have employees who work at one hospital, such as myself, and then transfer to a sister hospital such as Regional Medical Center.

Q: And by “sister hospital,” you mean one that’s affiliated with HCA?

A: Yes.

Q: Do you have any shared employees at Dauterive?

A: Yes, we do.

Q: How many?

A: I do not' know that number.

Thus, the foregoing testimony establishes that employees within the HCA network of hospitals often work at different facilities within the network. The foregoing testimony does not establish that the employees of HCA are also the employees of Dauterive, which might indicate a degree of control by HCA over Dauterive.

In all, the plaintiff has presented evidence that there is a relationship between HCA and Dauterive, and, indeed, there would be, as HCA is the parent company of Dauterive. However, the plaintiff has presented no evidence showing HCA was involved directly in Dauterive’s daily decisions relating to production, distribution, marketing, and advertising; shared employees, services, records, and equipment with Dauterive; commingled bank accounts, accounts receivable, inventories, and credit lines; maintained Dauterive’s books; issued Dauterive’s paychecks; or prepared and filed Dauterive’s tax returns. Most importantly, plaintiff has failed to put forth sufficient evidence that HCA was a final decision-maker in Dauterive’s employment decisions, either with respect to this particular plaintiff, or with respect to any Dauterive employee. Considering the foregoing, this Court concludes the plaintiff fails to put forth sufficient evidence of Dauterive’s control over plaintiff to defeat summary judgment on plaintiffs Title VII claims alleged against HCA.

2. Employer Status under Louisiana Law

As stated herein, to satisfy the definition of employer under Louisiana’s employment discrimination statute, the plaintiff must: (1) receive services from an employee and return give compensation to that employee; and (2) meet the requisite number of employees prescribed by the statute. Seal, 2002 WL 10456, *4; see also La.Rev.Stat. § 23:302(2); Hornsby v. Enterprise Transportation Co., 987 F.Supp. 512, 515 (M.D.La.1997) (J. Polozola).

In the instant case, as in Seal, there is not a scintilla of evidence presented by the plaintiff that HCA paid the plaintiff anything, nor is there a suggestion that the plaintiff herself received any compensation directly from HCA. Consequently, in Seal, the court stated:

Plaintiff has not satisfied her burden under F.R.C.P. Rule 56®, which requires that the party opposing summary judgment on the basis of additional diseovery submit affidavits to the Court setting forth specific facts which demonstrate that additional discovery might rebut the movant’s showing of the absence of a genuinely disputed material issue of fact. Plaintiff has offered no good reason for her failure to respond in any fashion to Gateway’s requests for admissions. The issue of the plaintiffs compensation is not information exclusively within the control of the defendant. Indeed, plaintiff should know whether or not she was ever compensated for her services directly from Gateway, or a Gateway/Service Zone joint venture account. Whether Gateway or Service Zone or a joint venture paid her salary, withheld taxes, paid her benefits, and the like, are simply not matters the plaintiff-payee would not presently know.

Seal, 2002 WL 10456, *7. Similarly, in the instant case, plaintiff has offered no good reason for her failure to submit evidence showing which entity paid her. Considering the foregoing, this Court concludes the plaintiff has not sustained her burden to defeat summary judgment on this issue.

As this Court concludes the plaintiff has presented no evidence of control under federal law, or that HCA compensated her for her services under Louisiana law, this Court need not address the alternative arguments advanced by HCA in support of its motion for summary judgment on grounds it is not liable to plaintiff because it is not plaintiffs employer. Considering the foregoing, plaintiffs claims against HCA under Title VII, Louisiana’s Employment Discrimination Law, and Louisiana’s Whistleblower Statute are DISMISSED WITH PREJUDICE. HCA’s motion for attorneys’s fees, costs, and expenses “in bringing this motion” is DENIED for failure of HCA to cite this Court to any authority supporting its argument that it is entitled to same.

B. Dauterive’s Motion for Summary Judgment [Doc. 59]

To reiterate, this Court has dismissed plaintiffs Title VII claims against Dauterive on grounds such claims are prescribed, and has dismissed plaintiffs claims for constructive discharge and forced resignation under the Louisiana Employment Discrimination Law on grounds plaintiff failed to provide notice of these claims to Dauterive and failed to exhaust the administrative process. Additionally, this Court dismissed plaintiffs defamation and retaliation claims against two Dauterive employees under the Louisiana Whistleblower Statute on grounds such claims are prescribed. Thus, the only claims that remain against Dauterive are plaintiffs state law claims for discrimination, harassment, and retaliation under the Louisiana Employment Discrimination Law. In the instant motion for summary judgment, Dauterive seeks dismissal of the foregoing claims on grounds they are prescribed and/or have no merit. Additionally, Dauterive contends that much like plaintiffs claims for constructive discharge and forced resignation, plaintiffs claim for denial of transfer under the Louisiana Employment Discrimination Law should be dismissed because plaintiff failed to properly provide notice of such claim to Dauterive.

1. Dauterive’s Motion to Dismiss Plaintiffs “Denial of Transfer” Claim

Dauterive seeks dismissal of plaintiffs claim for “denial of transfer,” which is alleged under Louisiana’s Employment Discrimination law, La.Rev.Stat. § 23:301, et seq. As an initial matter, this Court takes some issue with Dauterive’s argument that it included plaintiffs denial of transfer claim in its previous motion to dismiss. This Court notes in the section of Dauterive’s prior motion addressing notice and prescription, Dauterive referred only to plaintiffs “discrimination” claims, without delineating any of the plaintiffs specific claims for “discrimination,” whether they be claims for retaliation, constructive discharge, forced resignation, or denial of transfer. Rather, it was not until it filed its reply brief that Dauterive mentioned the denial of transfer claim. As the mover, Dauterive has the burden to present sufficient argument and/or evidence that a claim should be dismissed. Nowhere in the actual motion to dismiss does Dauterive specifically move for dismissal of a denial of transfer claim.

Notwithstanding the foregoing, this Court notes Dauterive did address plaintiffs denial of transfer claim in its reply brief. Dauterive argued the first notice it received regarding plaintiffs state law discrimination claims was on March 27, 2009, when it was served with the plaintiffs lawsuit. Although plaintiff argued notice of her state law claims was provided via her EEOC charge, this Court noted—and plaintiff provided no evidence or argument to the contrary—that in her EEOC charge, plaintiff indicated her claims were for race discrimination and retaliation— but not constructive discharge/forced resignation or denial of transfer.

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.Rev. Stat. § 23:303(C). Louisiana state and federal courts applying Louisiana law have held the filing of an EEOC charge of discrimination satisfies this notice requirement, but limits the state claim to the alleged discrimination detailed in the EEOC charge, and this Court agrees, particularly as notice is what is at issue. See, e.g., Johnson v. Harrah’s Entertainment, Inc., 2005 WL 3541139, *4 (E.D.La.2005) (MJ Knowles); Dorgan v. Foster, 2006 WL 2067716, *5 (E.D.La.2006) (J. Roby), citing Dunn v. Nextel So. Corp., 207 F.Supp.2d 523, 524 (M.D.La.2002) (J. Parker) (dismissing plaintiffs employment discrimination complaint without prejudice for failure to allege compliance with Section 23:303(C)); Brown v. Menszer, 2000 WL 1228769, at *2 (E.D.La.2000) (J. Duval) (rejecting plaintiffs argument that “vague verbal warning” could substitute for written notice under the previous notice statute and dismissing plaintiffs handicap discrimination claim for failure to comply with notice provision); Malakoff v. Alton Ochsner Med. Fd., 2000 WL 805232, at *2 (E.D.La.2000) (J. Mentz) (plaintiffs state law discrimination claim was “procedurally barred” by her failure to comply with Section 23:303(0).

The United States Supreme Court has deemed a “denial of transfer” a discrete employment action, much like termination, a failure to promote, or a refusal to hire. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 628, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) (“termination, failure to promote, denial of transfer, [and] refusal to hire” are examples of such discrete employment acts), citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In her EEOC charge, the plaintiff checked the boxes for discrimination based on “race” and “retaliation” and further particularly described the discriminatory acts against her as (1) a demotion; (2) unfair discriminatory actions; and (3) harassment. The EEOC charge does not mention a denial of transfer, just as it did not mention constructive discharge/forced resignation. Again, within the Court’s addressing this issue, with which this Court agrees, for the filing of an EEOC charge to constitute notice of a particular claim to the defendant, the charge must “detail the alleged discrimination.” See Dorgan v. Foster, 2006 WL 2067716 (E.D.La.2006); citing Mayes v. Office Depot, Inc., 292 F.Supp.2d 878, 889 (W.D.La.2003) (J. Hicks) (applying Louisiana law, filing an EEOC charge of discrimination satisfies the notice requirement, but limits the state claim to the alleged discrimination detailed in the EEOC charge).

Because the plaintiff did not include claims for employment actions deemed in the nature of discrete employment actions, by the United States Supreme Court (here, her claim for denial of transfer as a basis for her retaliation or race discrimination claims) in her EEOC charge, plaintiffs EEOC charge cannot constitute notice of her denial of transfer claim to Dauterive. Consequently, plaintiffs denial of transfer claim is DISMISSED WITHOUT PREJUDICE for failure of the plaintiff to provide notice of such claim to Dauterive and for failure to exhaust her administrative remedies with respect to that claim.

Additionally, this Court notes Louisiana and federal courts interpreting La.Rev. Stat. § 23:303(C) have dismissed claims for lack of notice both with and without prejudice. In its previous ruling, this Court dismissed plaintiffs state law claims for constructive discharge/forced resignation with prejudice. However, neither party has briefed the issue, therefore, out of an abundance of caution, this Court AMENDS it prior ruling and dismisses plaintiffs state law claims for constructive discharge/forced resignation WITHOUT PREJUDICE at this juncture.

2. Plaintiffs Request that Court Revive All of Her Claims

In response to Dauterive’s motion, the plaintiff argues additional discovery conducted between the time of the Court’s ruling on Dauterive’s prior motion to dismiss and the filing of the instant motion for summary judgment shows the “plaintiff submitted to the EEOC detailed narratives regarding every single incident she now complains of.” Thus, plaintiff argueS'—somewhat vaguely—that all of her claims that have been dismissed—namely, her Title VII claims and her state law claims for constructive discharge/forced resignation and denial of transfer—should be revived. To support her argument, the plaintiff attaches copies of what appear to be chronological, diary-type narratives explaining the alleged discriminatory actions of Dauterive. Plaintiff alleges she supplemented her August 25, 2007 EEOC charge with the foregoing narratives in September, October, and November 2007, which the plaintiff intended to be included in the EEOC’s investigation. Plaintiff argues the EEOC’s failure to amend the plaintiffs EEOC charge, presumably to add her claims for constructive discharge/forced resignation and denial of transfer, or to complete an additional charge based on the foregoing, cannot be imputed to the plaintiff to her detriment. Considering the foregoing, the plaintiff argues she:

has exhausted her administrative remedies regarding her constructive discharge claim, as well as any other instances of retaliation under title VII of the Civil, Rights Act that occurred after August 25, 2007, original submission to the EEOC. Therefore, this Honorable Court should set aside the part of its prior ruling, Rec. Doc. 30, dismissing those claims for failure to exhaust EEOC administrative remedies. In addition, as plaintiff timely put the EEOC on notice of every single one of her claims, she has also satisfied the notice requirements of La. R.S. 23:303(C). Consequently, plaintiff respectfully requests that the Court set aside the parts of its previous Ruling, Rec. Doc. 30, p. 24, finding that plaintiffs EEOC filing did not provide notice regarding the constructive discharge.

The plaintiffs argument is unpersuasive. First, this Court notes, with respect to plaintiffs Title VII claims against Dauterive for constructive discharge/forced resignation and denial of transfer, this Court did not dismiss the foregoing claims for failure to file an EEOC charge against Dauterive within the 300-day filing period, as plaintiff appears to suggest in her opposition brief. Rather, this Court dismissed plaintiffs Title VII claims on grounds plaintiff failed to timely file suit against Dauterive within the 90-day limitations period. See Doc. 30, p. 19. Therefore, plaintiffs argument on this point cannot revive her Title VII claims.

With respect to plaintiffs state law claims of constructive discharge/forced resignation and denial of transfer, asserted pursuant to the Louisiana Employment Discrimination Law, in its prior motion to dismiss, Dauterive contended plaintiff did not include claims for constructive discharge/forced resignation and denial of transfer in her EEOC charge, and therefore, plaintiff did not provide timely notice of those claims to Dauterive. Plaintiff did not dispute that portion of Dauterive’s motion. As stated previously, this Court noted the plaintiff presented no argument that her claims of constructive discharge and forced resignation are “like or related to [the] allegations contained in the [EEOC] charge.” Therefore, this Court concluded plaintiff failed to provide Dauterive with notice of her constructive discharge and forced resignation claims and failed to exhaust administrative remedies with respect to her constructive discharge and forced resignation claims. For the same reasons, the Court herein rules plaintiffs denial of transfer claims are similarly barred.

In its reply brief, Dauterive argues plaintiffs current request to set aside portions of the Court’s prior ruling dismissing plaintiffs constructive discharge/forced resignation claims under both Title VII and Louisiana state law is untimely and not warranted by the facts or law. Plaintiff provides no jurisprudential or statutory authority under which this Court should modify any of its prior rulings. Dauterive, on the other hand, argues any request to set aside this Court’s prior rulings must be made under either Rule 59(e) or Rule 60 of the Federal Rules of Civil Procedure. Dauterive argues to the extent the request is considered under Rule 59 of the Federal Rules of Civil Procedure, it is untimely, as a motion for reconsideration under Rule 59(e) must be filed within ten days after the entry of judgment. This Court agrees. Dauterive further argues to the extent the motion is urged under Rule 60(b), grounds do not exist for the relief requested.

Under Rule 60(b), a party may move for relief from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief Fed.R.Civ.P. 60(b). Although the plaintiff does not cite to Rule 60 as the source of the relief she seeks, Dauter