IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-30044

LORI SMITH, 

Plaintiff-Appellant,

versus

AMEDISYS INC.; PROMOD SETH; 

MITCHELL MOREL; WILLIAM BORNE,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

July 26, 2002

Before JONES, EMILIO M. GARZA, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge: 

Lori Smith (“Smith”) appeals the district court’s grant of summary judgment for her former

employer and three former supervisors on her claims under Title VII, Louisiana employment

discrimination statutes, and Louisiana tort law. For the reasons that follow, we affirm the decision

of the district court.
2

FACTUAL AND PROCEDURAL BACKGROUND

Smith was employed by Amedisys, Inc. (“Amedisys”) from October 20, 1995 through

September 28, 1996. Smith alleges that during her employment with Amedisys, she was subjected

to sexual harassment by Chief Operations Officer Promod Seth (“Seth”), who was her immediate

supervisor, Chief Financial Officer Mitchell Morel (“Morel”), and Chief Executive Officer William

Borne (“Borne”) (collectively “individual Defendants”). Because the district court disposed of this

case by way of summary judgment, we state the facts in the light most favorable to Smith.

Seth was flirtatious with Smith at the office and would put his arm around her in front of

other employees. Seth requested to have dinner and drinks with Smith on numerous occasions, he

would touch her hands at dinner, he would repeatedly touch her leg and hold her hand when she

would drive him to work or to appointments. Smith would immediately take Seth’s hand off her leg,

pull her hand back, and tell himnot to hold her hand because it wasinappropriate and it made her feel

uncomfortable. Further, there were several business trips that Smith and Seth took together where

he would make sexual advances toward her. On one business trip, Seth came to Smith’s hotel room

under the guise of watching television and, while he was there, grabbed her hand and pulled her to

the bed next to him, kissing, holding, and touching her and saying that he wanted her to lay down and

watch television with him. She told him no, pushed him away, squirmed away from him, and asked

him to leave several times before he finally complied with her requests. Seth also told Smith to wear

shorter skirts, low cut blouses, tighter fitting clothing, and high heels to improve salesfor Amedisys.

For example, in a meeting involving a physician recruitment project, Seth said that he wanted “good

looking women” wearing “short skirts” to go on appointments with the doctors and told the
3

employees, including Smith, “whatever [they] had to do to get the contract signed, get them signed

and it didn’t matter.”

Morel was also present at that particular physician recruitment meeting and agreed with

everything that Seth said. Further, Morel made repeated comments about Smith’s clothing and her

physical appearance, as well asthe appearances of other women. On Smith’s first day at work, Morel

told her that he was glad to see a “good looking” woman in the sales position because the previous

woman in Smith’s position was “tall and she had bleached blond hair and she was real thin and

wrinkly.” Additionally, Morel always commented about who Smith was previously and currently

dating, made sexually oriented comments about how Smith obtained certain contracts and business,

commented about her sex life, and repeatedly suggested that she prostitute herself in order to obtain

business for the company. Borne also made sexually oriented and offensive comments about other

women’s appearances, involving their sizes, shapes, height, weight, faces, and hair; the type of

women he found attractive; and “what turned him on.”

On September 27, 1996, Borne called Smith into his office and told her that he had received

reports from a client that she was making derogatory statements regarding Amedisys and Borne.

Cindy Doll (“Doll”), the Head of Human Resources, was also present at this meeting. Smith was

permitted to resign, in lieu of termination. Smith’s letter of resignation was dated September 30,

1996. Smith entered into a separation agreement with Amedisys (“Separation Agreement”), dated

November 12, 1996, in which she released “AMEDISYS of any and all employment related claims.”

On September 3, 1997, Smith sued Amedisys and the individualDefendantsinLouisiana state

court, alleging claims arising under Louisiana employment discrimination statutes and Louisiana tort

law. Specifically, she alleged sexual harassment, discrimination, retaliation, and intentional infliction
4

of emotional distress. On February 2, 1998, the state court denied an exception of no right and no

cause of action that sought to dismiss Smith’s claims against the individual Defendants in their

individual capacities relating to their liability under Louisiana employment discrimination law. Seth

then filed a third-party demand against Agricultural Excess and Surplus Insurance Company

(“Agricultural Excess”) for indemnity, defense costs, statutory penalties, and attorneys fees. The

parties engaged in discovery, the matter wasscheduled for trial in state court on September 30, 1999,

and a pretrial order was filed on July 12, 1999. 

Amedisys and the individualDefendantsremoved the case to the Middle District ofLouisiana

following Smith’s amendment of her petition on August 6, 1999 to add claims under Title VII, 42

U.S.C. § 2000e et seq.. Smith then filed a motion to remand, seeking remand of the action under 28

U.S.C. § 1447 based upon procedural defects, or alternatively, remand of all or part of her claims

under 28 U.S.C. § 1441(c). This motion was denied. On October 26, 1999, Smith filed a

supplemental and amending complaint. Subsequently, Amedisys and the individual Defendants filed

motions for summary judgment, the matter was reassigned to the Eastern District of Louisiana, and

the parties consented to proceed before a magistrate judge. By order entered on August 4, 2000, the

trial court granted the summary judgment motions and dismissed all of Smith’s claims against

Amedisys and the individual Defendants. The trial court concluded that Smith (1) could not pursue

the individual Defendants, in either their individual or official capacities, under Title VII or Louisiana

employment discrimination statutes, LA. REV. STAT ANN. §§ 23:1006, 51:2231 et seq.; (2) released

her claims against Amedisys under Title VII and Louisiana employment discrimination statutes; and

(3) failed to establish a genuine issue ofmaterialfact concerning her intentionalinfliction of emotional

distress claims. Following settlement of all remaining claims by and between Seth, Amedisys, and
 

1Smith also suggested for the first time at oral argument that there was a procedural defect in the

initialremoval. Because Smith failed to brief this issue, she has waived this argument. See Am. Nat’l

Gen. Ins. Co. v. Ryan, 274 F.3d 319, 325 n.3 (5th Cir. 2001).

5

Agricultural Excess, a formal judgment was entered by the trial court on December 21, 2000,

dismissing all of Smith’s claims and the indemnification claims.

DISCUSSION

I.

Smith first challengesthe trial court’srefusal to remand the entire case or her state law claims

under the discretionary provision of 28 U.S.C. § 1441(c).1 We review the trial court’s refusal to

remand under 28 U.S.C. § 1441(c) for an abuse of discretion. Anderson v. Red River Waterway

Comm’n, 231 F.3d 211, 214 (5th Cir. 2000). 

Under § 1441(c), whenever a “separate and independent claim or cause of action” that is

based on federal-question jurisdiction is “joined with one or more otherwise non-removable claims

or causes of action, the entire case may be removed and the district court may determine all issues

therein, or, in its discretion, may remand all matters in which State law predominates.” 28 U.S.C. §

1441(c). “Thus, for remand to be proper, the claim remanded must be (1) a separate and independent

claim or cause of action; (2) joined with a federal question; (3) otherwise non-removable; and (4) a

matter in which state law predominates.” Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d

320, 327 (5th Cir. 1998). Because it found that Smith’s federal claims were not “separate and

independent” from herstate law claims, the trial court refused to remand the entire action or her state

law claims. 

“[W]here there is a single wrong to [the] plaintiff, for which relief is sought, arising from an

interlocked series oftransactions, there is no separate and independent claimor cause of action under
6

§ 1441.” Id. (quoting Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 14 (1951)) (internal quotations

omitted). “A case involving the violation of a single primary right or wherein a party seeks redress

for one legal wrong cannot contain separate and independent claims, despite multiple theories of

liabilityagainst multiple defendants.” Texas v. Walker, 142 F.3d 813, 817 (5thCir. 1998). Moreover,

“[w]e have held that a claim is not independent if it involves substantially the same facts.” Eastus v.

Blue Bell Creameries, L.P., 97 F.3d 100, 104 (5th Cir. 1996) (quoting Addison v. Gulf Coast

Contracting Servs., 744 F.2d 494, 500 (5th Cir. 1984)) (internal quotations omitted). 

All of Smith’s claims, state and federal, are seeking redress for Smith’s allegations that the

individual Defendants sexually harassed her, discriminated against her, and retaliated against her

during her employment with Amedisys. Both Title VII and Lo uisiana employment discrimination

statutes prohibit sexual harassment, discrimination, and retaliation, and Louisiana courts routinely

look to federal law for guidance in determining whet her a viable claim has been asserted. E.g.,

Wyerick v. Bayou SteelCorp., 887 F.2d 1271, 1274 (5th Cir. 1989); McMillon v. Corridan, No. 97-

3981, 1998 WL 560334, at *3 (E.D. La. Aug. 31, 1998); Tanner v. Reynolds Metals Co., 739 So.

2d 893, 899 (La. Ct. App. 1999). Thus, the proof required by Smith on the federal and state

employment discrimination claims will involve “substantially the same facts.” Further, Smith’s

intentional infliction of emotional distress claim is based on the “outrageous” behavior–i.e., the

alleged verbal and physical harassment–ofthe individual Defendants. For the federal claims and state

law claims in the instant case, the single wrong is the sexual harassment, discrimination, and

retaliation allegedly committed by the individual Defendants, and the various claims are simply

different theories of recovery. 
 

2

In light ofthe trial court’s determination that the individual Defendants were not liable under Title

VII or Louisiana employment discrimination statutes, the court did not address their alternative

arguments that the Separation Agreement released them from liability. 

7

As a result, the federal claims and the state law claims are not “separate and independent

claim[s] or cause[s] of action” under § 1441(c). Thus, the trial court correctly concluded that it was

without discretion to remand.

II.

We now turn to the trial court’s determination on the merits. A grant of summary judgment

is reviewed de novo. Geoscan, Inc. of Tx. v. Geotrace Techs., Inc., 226 F.3d 387, 390 (5th Cir.

2000). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that 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. P.

56(c). A genuine issue of material fact exists if the record, taken as a whole, could lead a rational

trier offact to find for the non-moving party. Geoscan, 226 F.3d at 390. We must view the facts and

inferencesto be drawn therefrom in the light most favorable to the non-moving party. Id. Questions

of law are reviewed de novo. Mowbray v. Cameron County, Tex., 274 F.3d 269, 278 (5th Cir.

2001).

A.

On appeal, Smith argues that the trial court erroneously granted summary judgment on her

claims against Amedisys under Title VII and Louisiana employment discrimination statutes. Thus,

we must address the trial court’s finding that the Separation Agreement was valid and that Smith

released Amedisys from her claims under Title VII and Louisiana employment discrimination

statutes.2 Because we find that the Separation Agreement is binding regarding Smith’s Title VII and
8

Louisiana employment discrimination claims, we conclude that the trial court correctly granted

Amedisys summary judgment on these claims.

1.

“A general release of Title VII claims does not ordinarily violate public policy. To the

contrary, public policy favors voluntary settlement of employment discrimination claims brought

under Title VII.” Roger v. Gen. Elec. Co., 781 F.2d 452, 454 (5th Cir. 1986) (citations omitted).

Nonetheless, we must closely scrutinize a release waiving rights under Title VII because of their

remedial nature. See Watkins v. Scott Paper Co., 530 F.2d 1159, 1172 (5th Cir. 1976) (“A waiver

of a federal remedial right is not lightly to be inferred.”). 

The interpretation and validity of a release of claims under Title VII is governed by federal

law. Williams v. Phillips Petroleum Co., 23 F.3d 930, 935 (5th Cir. 1994); Roger, 781 F.2d at 454.

A release of a Title VII claim is valid only if it is “knowing and voluntary.” Roger, 781 F.2d at 454.

In determining whether a release was knowingly and voluntarily executed, this court has adopted a

“totality of the circumstances” approach. See O’Hare v. Global Natural Res., 898 F.2d 1015, 1017

(5th Cir. 1990). The employer bears the burden of establishing that its former employee “signed a

release that addressesthe claims at issue, received adequate consideration, and breached the release.”

Williams, 23 F.3d at 935. It is then incumbent upon the former employee to “demonstrat[e] that the

release was invalid because of fraud, duress, material mistake, or some other defense.” Id. To

determine whether the former employee has met the burden of establishing a defense to the validity

of the release, we examine the following relevant factors:

(1) the plaintiff’s education and business experience, (2) the amount of time the

plaintiff had possession of or access to the agreement before signing it, (3) the role

of [the] plaintiff in deciding the terms of the agreement, (4) the clarity of the
9

agreement, (5) whether the plaintiffwasrepresented byor consulted with an attorney,

and (6) whether consideration given in exchange for the waiver exceeds employee

benefits to which the employee was already entitled by contract or law.

O’Hare, 898 F.2d at 1017.

It is undisputed that Smith signed a release dated November 12, 1996. The language of the

Separation Agreement read, in pertinent part, as follows:

This separation agreement and general release is made and entered into by and

between Lori Smith and AMEDISYS, Inc. and/or its subsidiaries (hereafter referred

to as AMEDISYS). In consideration of your agreement to abide by the below listed

issues, AMEDISYS agrees to continue your salary for a period of two (2) months

following your resignation on September 28, 1996. You will receive your salary on

the 22nd and 7th of each month, beginning October 22, 1996 and ending on

December 7, 1996.

The issues referenced above are as follows:

. . . .

2. You agree to release AMEDISYS of any and all employment related claims.

. . . .

6. AMEDISYS agreesto provide favorable work related references in response

to any future inquiries.

The trial court found that the language of the release unambiguously covered Smith’s Title

VII claim. Title VII is the centerpiece of federal employment discrimination law. Only “employers”

as defined in Title VII are prohibited from discriminating against individuals with respect to their

“compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). Thus,

the relationship between the plaintiff and defendant in a Title VII action must be one of

“employment.” As the trial court recognized, but for Smith’s status as an employee of Amedisys, she

would have no Title VII claim. Paragraph 2 of the Separation agreement states that Smith agreed

to release Amedisys “of any and all employment related claims.” This provision unambiguously

covers Smith’s Title VII claim, which is clearly “employment related.”
10

The trial court also rejected Smith’s argument that the release was invalid for lack of

consideration. Smith’s argument runs as follows. At the September 27th meeting where Borne asked

for her resignation, he orally promised to give her two months of severance pay in exchange for her

resignation, before any release was mentioned. Smith then tendered her resignation. Further, Smith

claims that she received her severance pay before she even received the Separation Agreement. In

exchange for the Separation Agreement, Smith allegedly received the severance pay to which she

was already entitled by virtue of Borne’s promise and her resignation. Thus, she argues that no

consideration supports the release because Smith received from Amedisys no more than an amount

of money to which she already had a right. We agree with the trial court that Smith’s argument fails

upon an examination of the summary judgment evidence.

During her deposition, Smith testified that at the September 27th meeting, Borne asked her

to resign in exchange for a two-month severance package, she agreed because she needed severance

pay, and Borne said that “he didn’t want any derogatory comments to clients” and that “all [she]

needed to do was write a resignation letter.” Borne stated at his deposition that the two months of

severance pay came up at the September 27th meeting because he wanted to give Smith severance

“so she could get back on her feet.” Doll also testified at her deposition that Borne told Smith that

he would give her the opportunity to resign, said that he would be fair to her in the event that she did

resign, and offered her two months ofseverance pay at the meeting. Doll testified that the Separation

Agreement was drafted and sent to Smith within days after the September 27th meeting and that she

received Smith’sresignation letter within days of the meeting. Doll also testified that the Separation

Agreement was sent to Smith before the first paycheck following Smith’s resignation was sent, but

that the first paycheck was sent even though they had not received the signed Separation Agreement
 

3At most, Smith’s right to receive two months of severance pay prior to signing the Separation

Agreement was disputable. See Warnebold v. Union Pac. R.R., 963 F.2d 222, 224 (8th Cir. 1992)

(holding that an employee received consideration for his release of an Age Discrimination in

Employment Act (ADEA) claimwhen he received severance payments where he had onlya contested

right to benefits prior to signing the release); see also Joe v. First Bank Sys., Inc., 202 F.3d 1067,

1071 (8th Cir. 2000) (holding that an employee received consideration for his release of a Worker

Adjustment and Retraining Notification Act claim when he received severance benefits,

notwithstanding his contention that he was entitled to severance benefits prior to signing the release,

where the employer had the right to condition payment of benefits on employee signing release);

O’Hare, 898 F.2d at 1017 (holding that the release of an ADEA claim was supported by

consideration where the employee “gave up a disputed right to [severance] benefits . . . for an

undisputed right to a smaller package of benefits.”); O’Shea v. Commercial Credit Corp., 930 F.2d

358, 362 & n.3 (4th Cir. 1991) (holding that the release of an ADEA claim was supported by

considerationwhere the employee received severance paymentsto which she was not unquestionably

entitled).

11

fromSmith. Smith testified, however, that she received the four payments specified in the Separation

Agreement only after she signed it.

The Separation Agreement states that “[i]n consideration of your agreement to abide by the

below listed issues, AMEDISYS agrees to continue your salary for a period of two (2) months

following your resignation on September 28, 1996” and that Amedisys further “agrees to provide

favorable work related references in response to any future inquiries.” At Smith’s deposition, she

testified that she understood that she would receive two months salary in exchange for signing the

Separation Agreement. Further, Smith stated that she was told that she could not receive any

severance payments untilshe signed the Separation Agreement. Although Doll’s testimony suggests

that Smith may have received one payment prior to signing the Separation Agreement, Smith’s own

testimony was that she received the four payments specified in the Separation Agreement only after

signing it. Smith also testified that she accepted payment from Amedisys in keeping with the

Separation Agreement. Thus, Smith received consideration in exchange for signing the Separation

Agreement.3
12

Smith brought a Title VII claim against Amedisys, which is a matter addressed in the

Separation Agreement. Thus, Amedisys has met its initial of burden of proof regarding Smith’s

waiver of her Title VII claims.

Smith does not assert that the Separation Agreement was obtained by fraud or duress. She

does contend, however, that genuine issues of material fact exist as to whether the release was

knowing and voluntary. Smith claims that the release is invalid because the Separation Agreement

did not mention “Title VII” or “federal claims.” This argument is meritless. This Court has

recognized that “[i]n determining whether a release was knowingly and voluntarily executed, federal

law requires that a valid waiver is not to be ‘lightly inferred.’ ” Roger, 781 F.2d at 454. There is no

obligation, however, under Title VII or federal common law, that a release must specify Title VII or

federal causes of action to constitute a valid release of a Title VII claim. See Stroman v. W. Coast

Grocery Co., 884 F.2d 458, 461 (9th Cir. 1989) (holding that a release “need not specifically recite

[Title VII] in order to be effective”); Pilon v. Univ. of Minn., 710 F.2d 466, 467-68 (8th Cir. 1983)

(holding that even though a general release of “any and all” claims did not specifically mention Title

VII, “the wording of the release in the present case is clear and leaves no doubt that all claims

potentially held by Pilon are waived”); see also Int’l Ass’n of Machinists & Aerospace Workers v.

Compania Mexicana de Aviacion, S.A. de C.V., 199 F.3d 796, 798 (5th Cir. 2000) (Worker

Adjustment and Retraining Notification Act); Williams, 23 F.3d at 935 (same). 

Moreover, contrary to Smith’s contention, we agree with the trial court that an analysis ofthe

totality of the circumstances demonstrates that Smith has not raised a genuine issue of material fact

as to whether she knowingly and voluntarily executed the release. First, Smith admits that she is a

high school graduate, she completed a business administration course at a business college, and she
 

4Although Smith did not consult an attorney prior to executing the Separation Agreement, this

circumstance does not require us to find that the release was not knowing and voluntary. See

Williams, 23 F.3d at 937; Rogers, 781 F.2d at 456 & n.7.

13

took a couple of semesters of accounting classes at Louisiana State University. Smith read every

word of the Separat ion Agreement before signing it and although she testified that she did not

understand that Paragraph 2 would release her claims in this lawsuit, she could not explain why she

did not understand it or what she understood it to mean at the time. Second, Smith’s testimony

concerning the amount of time that she had possession of the Separation Agreement before signing

it is conflicting. In her first deposition she stated that she had it in her possession for approximately

four weeks, but in her second deposition she testified that she sent it back to Amedisys the same day

she received it. Either way, Smith was given no deadline for signing the Separation Agreement; she

was merely told that she would not receive herseverance payments untilshe signed it and sent it back

to Amedisys. Third, Smith’s job with Amedisys included negotiating contracts with physicians. She

testified that she understood Paragraph 3, which contained a noncompetition clause, and struck that

paragraph fromthe Separation Agreement prior to signing it. Fourth, the Separation Agreement was

a one-page document that stated in plain and simple language that it “release[d] AMEDISYS of any

and all employment related claims.” This quoted language is not verbose “legalese” and is easily

understood to cover Smith’s Title VII claim. Fifth, Smith chose not to consult an attorney, even

though she had ample time to do so.4 Finally, the severance payments and Amedisys’s agreement to

give her favorable references were benefitsto which Smith was not already entitled. Thus, summary

judgment was appropriate on Smith’s Title VII claim against Amedisys.

2.
 

5 Louisiana Civil Code article 3071 states that “[a] transaction or compromise is an agreement

between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their

differences by mutual consent, in the manner which they agree on, and which every one of them

prefers to the hope of gaining, balanced by the danger of losing.” LA. CIV. CODE ANN. art. 3071

(West 1994). 

14

Under Louisiana law, a release is known as a “transaction or compromise.”5 The elements

of a compromise are: “(1) mutual intention of putting an end to the litigation, and (2) reciprocal

concession ofthe partiesin adjustment of their differences.” Brown v. Drillers, Inc., 630 So. 2d 741,

747 n.8 (La. 1994). The burden of establishing the requisites for a compromise, including that it

covers the claims asserted, falls on the employer. Id. at 747-48. The burden of proving that a

compromise is invalid is on the employee attacking the instrument. Id. at 747.

A compromise is a written contract that “must be interpreted according to the parties’ true

intent [and] is governed by the same generalrules of construction applicable to contracts.” Id. at 748.

Louisiana Civil Code article 2046 sets forth a general rule that “[w]hen the words of a contract are

clear and explicit and lead to no absurd consequences, no further interpretation may be made in

search of the parties’ intent.” Brown, 630 So. 2d at 748. Louisiana Civil Code article 3073 contains

a supplementary rule of construction governing the scope of a compromise. Id. It provides as

follows: 

Transactions regulate only the differences which appear clearly to be comprehended

in them by the intention of the parties, whether it be explained in a general or

particular manner, unless it be the necessary consequence of what is expressed; and

they do not extend to differences which the parties never intended to include in them.

LA. CIV. CODE ANN. art. 3073 (West 1994). 

Proof of the scope of a release “can include reference to extrinsic evidence because, even

though Louisiana courts generally interpret a contract fromwithin itsfour corners, they ‘have crafted
15

a special exception to the extrinsic evidence rule for compromise agreements.’ ” Copeland v.

Wasserstein, Perella & Co., Inc., 278 F.3d 472, 480-81 (5th Cir. 2002) (quoting Brown, 630 So. 2d

at 748). “Importantly, as the language of article 3073 suggests, if the releasor ‘did not intend to

release certain aspects’ of a claim, extrinsic evidence is admissible to establish ‘whether unequivocal

language in the instrument was intended to be unequivocal.’ ” Id. at 481 (quoting Brown, 630 So.

2d at 749). Louisiana courts, however, have limited this extrinsic evidence exception “to cases in

which substantiating evidence is presented establishing either (1) that the releasor was mistaken as

to what he or she was signing, even though fraud was not present; or (2) that the releasor did not

fully understand the nature of the rights being released or that the releasor did not intend to release

certain aspects of his or her claim.” Brown, 630 So. 2d at 749. Thus, “[w]hen . . . a contract can

be construed from the four corners of the instrument without looking to extrinsic evidence, the

question of contractual interpretation is answered as a matter of law and thus summary judgment is

appropriate.” Id. at 749-50.

The issue presented here is whether the Separation Agreement reflectsthat the parties clearly

comprehended a release of claims under Louisiana employment discrimination statutes. Because the

parties dispute the scope of the Separation Agreement, extrinsic evidence would ordinarily be

considered. The extrinsic evidence exception, however, is inapplicable here. Amedisys relies solely

on the language of the Settlement Agreement and Smith has not presented substantiating evidence

that she was mistaken as to what she was signing, that she misunderstood the rights being released,
 

6Smith merely testified, without further explanation, that she did not understand the meaning of

Paragraph 2.

16

or that she did not intend to release certain aspects of her claim.6 Thus, our interpretation of the

parties’ intent will be governed by the four corners of the Separation Agreement.

An analysis of the four factors set forth in article 3073 leads us to determine that the

Separation Agreement covers Smith’s claims under Louisiana employment discrimination statutes.

The Separation Agreement is couched in general terms, releasing “any and all employment related

claims.” Webster’s Third International Dictionary defines “claim” as “a demand of a right or

supposed right . . . a calling on another for something due or supposed to be due.” WEBSTER’S

THIRD INTERNATIONALDICTIONARY 414 (3d ed. unabridged 1968). Black’s Law Dictionary defines

“claim” as including “[a]n interest or remedy recognized at law” or a “cause of action.” BLACK’S

LAWDICTIONARY 240 (7th ed. 1999). When modified by “employment related,” the causes of action

which Smith waived were limited. This limitation could be either narrowly construed to mean that

cause of action itself must sound in employment law, or broadly construed to mean that the cause of

action must arise out of Smith’s employment with Amedisys. Under either construction, this general

release issufficient to clearly expressthe parties’ intent that the Separation Agreement cover Smith’s

claims, which arise from workplace occurrences and are based on Louisiana’s statutes designed to

remedy discrimination in the workplace. 

Further the second requirement that there be reciprocal concessions of the parties is present

in this case. As previously discussed, Smith received consideration for signing the Separation

Agreement. “Consideration, in the common-law sense, is not a prerequisite for a valid contract in

Louisiana.” Unkel v. Unkel, 699 So. 2d 472, 475 (La. Ct. App. 1997). Louisiana’s Civil Code
 

7Smith does not appeal the trial court’s grant of summary judgment in favor of the individual

Defendants on Smith’s Title VII claims against them in their individual and official capacities.

17

requires only “cause,” not “consideration.” LA.CIV.CODEANN. art. 1967 (“Cause isthe reason why

a partyobligates himself.”);Id. cmt.(c)(“Underthis article, ‘cause’is not ‘consideration.’ The reason

why a party binds himself need not be to obtain something in return or to secure an advantage for

himself.”). “A transaction and compromise requires no other cause than an adjustment of differences

and avoidance of litigation, the cause prescribed by article 3071.” Unkel, 699 So. 2d at 475. The

Separation Agreement clearly evidences reciprocal concessions by the parties. Smith’s primary

concession as cause for the SeparationAgreement wasthe release of “any and all employment related

claims,” while Amedisys’s concession as cause for the agreement wasthe payment of two months of

salary and the undertaking of an obligation to provide favorable references. Therefore, the trial court

properly granted summary judgment in favor of Amedisys on Smith’s claims under Louisiana

employment discrimination statutes.

B.

In light of our conclusion that the trial court correctly granted summary in favor of Amedisys

on Smith’s Title VII claims, we must next address Smith’s challenge to the trial court’s election to

exercise supplemental jurisdiction over Smith’s state law claims under 28 U.S.C. § 1367 after

dismissing all of Smith’s federal claims.7 

After dismissing Smith’s Title VII claims, the trial court appropriately considered whether it

could properly exercise supplemental jurisdiction over Smith’s remaining state law claims.

Concluding that Smith’s state law claims did not involve novel or complex issues of law, that

extensive discovery had been completed and the case had been pending for almost three years, that
 

8

28 U.S.C. § 1367(c) provides that 

[t]he district courts may decline t o exercise supplemental jurisdiction over a claim

under subsection (a) if–

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the

district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasonsfor declining

jurisdiction.

18

the parties had exhaustively briefed the issues in the case, and that the court was intimately familiar

with the merits of Smith’s claims, the trial court held that retaining the state law claims was

appropriate. Smith argues that her state law claims predominate, that virtually all discovery was

conducted at the state level, that the case was close to trial in state court, and the state court was

equally if not more familiar with the case

The trial court’s decision to retain jurisdiction over pendent state law claims is reviewed for

abuse of discretion. McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998). Our review is

guided by “both the statutory provisions of 28 U.S.C. § 1367(c) and the balance of the relevant

factors of judicial economy, convenience, fairness, and comity.” Batiste v. Island Records, Inc., 179

F.3d 217, 227 (1999). “Although we have stated that our ‘general rule’ is to decline to exercise

jurisdiction over pendent state-law claims when all federal claims are dismissed or otherwise

eliminated from a case prior to trial, this rule is neither mandatory nor absolute.” Id.

We review the trial court’s decision beginning with the factors enumerated in 28 U.S.C. §

1367(c).8 Regarding the first factor, the remaining claims do not involve any “novel or complex”

issues o f state law. Considering the second and third factors, our analysis above affirms the trial

court’s dismissal ofthe only federal claims alleged. Thus, the state law claims now predominate over
19

the nonexistent federal claims. Turning to the fourth factor, we find no “exceptional circumstances”

for refusing to retain jurisdiction. Thus, our § 1367(c) analysis results in the conclusion that two

factors weigh toward retaining jurisdiction over the remaining claims, and two factors point toward

declining jurisdiction.

We next consider the factors of judicial economy, convenience, fairness, and comity. The

instant case has been pending for almost three years, the parties have taken numerous depositions,

and the matter had progressed to the advanced stages of litigation with little left to do before trial.

Further, as the trial court noted, it “devoted many hours to reviewing [the parties’] memoranda, the

attached exhibits and the record in this case; researching the legal issues involved; and reaching the

decisions” in its comprehensive summary judgment ruling. Thus, the trial court had “substantial

familiarity with the merits of the case.” Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d

580, 587 (5th Cir. 1992);see also Batiste, 179 F.3d at 228 (“The familiarity of the district court with

the merits of the Batistes’ claims demonstrates that further proceedings in the district court would

prevent redundancy and conserve scarce judicial resources . . . .”). We therefore determine that the

principles ofjudicial economy, convenience, and fairnessto the parties weigh heavilytoward retaining

jurisdiction.

After balancing all of the factors in this case, we conclude that the trial court did not abuse

its discretion in exercising supplemental jurisdiction over Smith’s remaining state law claims.

C.

Smith next contends that the trial court erred by granting summary judgment on her claims

against the individual Defendants under Louisiana employment discrimination statutes because the

state court previously ruled that the individual Defendants could be liable under Louisiana
 

9LA. REV. STAT. ANN. § 23:1006 wasrepealed by Acts 1997, No. 1209, effective August 1, 1997.

 

10The state court’sruling is not contained in the record. Thus, we are unable to ascertain whether

the state court decided that there was a cause of action under Louisiana Revised Statute § 23:1006,

the LCHRA, or both statutes.

 

11Cf. Copeland v. Merril Lynch & Co., Inc., 47 F.3d 1415, 1424 (5th Cir. 1995) (“[T]he law of

the case doctrine is a discretionary rule of practice which does not limit the power of the court to

revisit a legal issue [and] permits a change of position when it appears that the original ruling in the

case was wrong.”); 18 CHARLESALANWRIGHTETAL.,FEDERALPRACTICEAND PROCEDURE § 4478,

at 798 & n.29 (2d ed. 1981) (explaining that a federal court may show deference “to rulings made

by a state court in an action that is subsequently removed to a federal court,” but that “[t]he sense

of deference . . . should not amount to a feeling of compulsion”).

20

employment discrimination statutes as they existed in 1996. She argues that since this state court

ruling became the “law of the case,” the trial court was bound to follow the state court ruling. We

disagree.

The trial court concluded that the individual Defendants could not be held liable to Smith

because they were not “employers” under the two Louisiana statutes prohibiting sexual harassment,

discrimination, and retaliation that were ineffect in 1996, while Smithworked at Amedisys: Louisiana

Revised Statute§23:10069 and the Louisiana Commission on HumanRights Act(LCHRA),LA.REV.

STAT. ANN. § 51:2231 et seq. Even assuming that the state court ruled that Smith had a cause of

action against the individual Defendants under both Louisiana employment discrimination statutes,10

we hold that the trial court properly disregarded the state court ruling because the individual

Defendants are not “employers” under either statute and, therefore, cannot be liable.11

Louisiana Revised Statute § 23:1006 defines “employer” as “a person, association, legal or

commercial entity . . . receiving servicesfrom an individual and in return giving compensation of any

kind to said individual and who employs more than fifteen employees.” LA. REV. STAT. ANN. §

23:1006. It is undisputed that Smith performed services for Amedisys and received compensation
 

12LA. REV. STAT. ANN. § 51:2232(4) was repealed by Acts 1997, No. 1209, effective August 1,

1997.

21

from Amedisys; Smith neither performed servicesfor nor received compensation from the individual

Defendants. Since the individual Defendants were not Smith’s “employer” as defined under §

23:1006, Smith has no claimunder thisstatute against them. See, e.g., Hornsby v. Enterprise Transp.

Co., 987 F. Supp. 512, 515 (M.D. La. 1997). 

The LCHRA defines “employer” as “any person employing eight or more persons within the

state, or any person acting as an agent of an employer.” LA. REV. STAT. ANN. § 51:2232(4).12 Smith

asserts that the state court concluded that the LCHRA afforded her a cause of action against the

individual Defendants because they were “agents” of Amedisys. 

Louisiana courts and federal courts applying Louisiana law have routinely looked to federal

jurisprudence to interpret Louisiana employment discrimination statutes. E.g., Nichols v. Lewis

Grocer, 138 F.3d 563, 566 (5th Cir. 1998); Fishel v. Farley, No. 93-480, 1994 WL 90325, at *2

(E.D. La. Mar. 16, 1994); King v. Phelps Dunbar, L.L.P., 743 So. 2d 181, 187 (La. 1999). Under

Title VII, an “employer” includes any “person engaged in an industry affecting commerce . . . and any

agent of such a person.” 42 U.S.C. § 2000e(b). This circuit has held that there is no individual

liability for employees under Title VII. See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262

(5th Cir. 1999); Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir. 1994). While Title VII’s

definition ofthe termemployer includes “any agent” of an employer, Congress’s purpose was merely

to import respondeat superior liability into Title VII. See Indest, 164 F.3d 258 at 262; Grant, 21

F.3d 649 at 652 (citing Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (9th Cir. 1993)). Further,

a plaintiff is not entitled to maintain a Title VII action against both an employer and its agent in an
 

13Because we affirm the trial court’s conclusion with regard to the individual Defendants’ liability

under Louisiana employment discrimination statutes, and Smith did not appeal its similar conclusion

regarding Title VII, we need not address whether the Separation Agreement released the individual

Defendants from liability under Title VII or Louisiana employment discrimination statutes.

 

14We assume arguendo that Smith’s release of claims against Amedisys did not cover the claim

for intentional infliction of emotional distress.

22

official capacity. See Indest, 164 F.3d at 262. Under the reasoning of our case law interpreting Title

VII, the individualDefendants cannot be liable to Smith in their individual or official capacities under

the LCHRA. See, e.g., Rhyce v. Martin, 173 F. Supp. 2d 521, 534 (E.D. La. 2001).

Thus, we conclude that the trial court correctly departed from the state court’s prior ruling

and granted summary judgment in favor of the individual Defendants, in their individual and official

capacities, on Smith’s claims under § 23:1006 and the LCHRA.13

D.

Smith also argues that the trial court erroneously granted summary judgment in favor of

Amedisys and the individual Defendants on her intentional infliction of emotional distress claims

against them. We disagree.14

Under Louisiana law, in order to recover for intentional infliction of emotional distress, a

plaintiff is required to establish three elements: “(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 certain or substantially certain to result from his conduct.” White v. Monsanto Co., 585 So. 2d

1205, 1209 (La. 1991). “Recognition of a cause of action for intentional infliction of emotional

distressin a workplace environment has usuallybeen limited to casesinvolving a pattern of deliberate,

repeated harassment over a period of time.” Id. at 1210. The trial court determined that Smith’s
23

claim for intentional infliction of emotional distress failed as a matter of law because she failed to

produce sufficient evidence to show that the mental anguish suffered by Smith rises to the level of

severe distress required to support such a claim. The second prong of the White test requires that

“[t]he distress suffered must be such that no reasonable person could be expected to endure it.

Liability arises onlywhere the mental anguish orsuffering is extreme.” Id. at 1209. We conclude that

the district court correctly determined that Smith failed to put forth evidence to establish a genuine

issue of material fact concerning the second prong of White.

Smith testified that she felt angry, embarrassed, disgusted, humiliated, horrified, and repulsed

when Seth made physical and verbal sexual advances toward her. She believed that the sexually

oriented statements made by Morel were “disgusting” and she felt “belittled” and “embarrassed” by

Morel’s comments, which made her feel asthough she was only hired to work for Amedisys because

of her appearance, as opposed to her intelligence and experience. She found Borne’s comments

about women and African-Americans “repulsive,” “horrible,” and “very offending.” Being asked to

resign from her job “was devast ating” to Smith and she “wasn’t happy,” “was very disgusted and

disappointed,” and “was mad [and] very depressed.” 

As of April 26, 1999, the day that Smith’s second deposition was taken, Smith testified that

she was still depressed and angry, she thought about losing her job at Amedisys every day, and it

affected her current job. The loss of her job “discourage[d]” Smith, made her feel “incompetent,”

and made her wonder if she is “even doing a good job now.” The individual Defendants’ behavior

and her experience at Amedisys caused her to be “embarrassed of [her] appearance” and altered the

manner in which she approaches her current job.
24

Smith testified that she suffered fromdepression, headaches, and loss of appetite in the spring

of 1997, for which she saw a family practitioner, Dr. Gerald Barber, and a neurologist, Dr. Carolyn

Baker. Smith claims that she related the history of what happened at Amedisys to Dr. Baker. A CAT

scan was performed on Smith and she received medication for her headaches. The results of the CAT

scanwere negative, but the neurologist’s nurse suggested to Smith that the headaches could be stressrelated.

Dr. Baker testified that she examined Smith once on February 21, 1997 and that Smith

complained of headaches. Dr. Baker said that she prescribed medication for Smith’s headaches.

When asked whether Smith told Dr. Baker about any prior sexual harassment, Dr. Baker responded:

“I didn’t, we didn’t make any notes to that effect. I don’t remember that. I have to say no.” Dr.

Baker also stated that there was nothing in her records which documented Smith telling her of

problems which could have caused stress headaches. Furt her, Dr. Baker explained that “[i]f the

patient said to me that she had been under stress, . . . we would have probably written that down.”

Although the conduct alleged by Smith involved persistent verbal and physical sexual

harassment, and has Smith shown that she experienced emotional distress as a result of this

harassment and losing her job at Amedisys, the evidence does not show that the distress was

“unendurable.” White, 585 So. 2d at 1209; see also RESTATEMENT (SECOND) OF TORTS § 46 cmt.

j(“Emotional distress. . . includes all highly unpleasant mentalreactions, such asfright, horror, grief,

shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only

where it is extreme that the liability arises. . . . The law intervenes only where the distress inflicted

is so severe that no reasonable [person] could be expected to endure it.”). We are constrained by

White and the Louisiana cases construing the severity prong of the White test. While there is no
25

bright-line test for determining whether Smith’s emotional distress meets the level of severity

necessary to make Amedisys and the individual Defendants liable, from our review of Louisiana law,

it is evident that the threshold is high. Smith has not cited, and our research has not revealed,

Louisiana cases that have lowered the threshold to the point where the emotional distress described

by Smith would satisfy the severity prong. Accordingly, we affirm that the trial court’s grant of

summary judgment in favor of Amedisys and the individual Defendants on Smith’s intentional

infliction of emotional distress claims.

E.

Finally, Smith claimsthat the trial court erred byentering judgment dismissing allof her claims

against Amedisys and the individual Defendants without considering what she asserts are state law

claims of battery against Seth and Amedisys, based on respondeat superior. We are not persuaded

by this argument because we conclude that, to the extent that Smith’s supplemental and amending

complaint can be construed to assert battery claims, Smith has abandoned those claims.

“The notice pleading requirements of Federal Rule of Civil Procedure 8 and case law do not

require an inordinate amount of detail or precision.” St. Paul Mercury Ins. Co. v. Williamson, 224

F.3d 425, 434 (5th Cir. 2000). “The form of the complaint is not significant if it alleges facts upon

which relief can be granted, even if it fails to categorize correctly the legal theory giving rise to the

claim.” Id. (citation and internal quotations omitted). Smith’s complaint focused on violations of

Title VII and Louisiana employment discrimination statutes and intentional infliction of emotional

distress purportedly committed by Amedisys and the individual Defendants. In describing those

violations, however, Smith generally alleged that she was subjected to Seth kissing her and touching

her legssuddenly and unexpectedly, for which she sought relief. Although Smith’s complaint did not
 

15Under Louisiana law, the intentional tort of battery is “a harmful or offensive contact with a

person, resulting from an act intended to cause the plaintiffto suffer such contact.” Caudle v. Betts,

512 So. 2d 389, 391 (La. 1987).

26

specifically include the word “battery,” such a claim could come within those allegations and those

allegations state facts upon which relief can be granted.15

In National Ass’n of Government Employees v. City Public Service Board of San Antonio,

Texas, we reiterat ed that because “trial courts will not rule on claims–buried in pleadings–that go

unpressed before the court,” this Court may construe parties’ failure to urge their claims before the

trial court as an intent to abandon those claims. 40 F.3d 698, 705 (5th Cir. 1994) (quoting Vaughn

v. Mobil Oil Exploration & Producing Southeast, Inc., 891 F.2d 1195, 1198 (5th Cir. 1990)). While

recognizing that “this maxim pertains to a determination [of] whether a judgment is final for the

purposes of appeal,” we have found it applicable in other contexts. Baran v. Port of Beaumont

Navigation Dist. of Jefferson County Tex., 57 F.3d 436, 441 (5th Cir. 1995) (declining to remand a

meritless issue to the district court where the parties urging the issue on appealfailed to develop and

argue it fully in that court). Similarly, we find that this principle supports our conclusion that Smith

cannot belatedly resurrect a purported claim that she completely failed to pursue before the trial

court. 

We note that Amedisys and the individual Defendants moved for summary judgment, as

opposed to partial summary judgment, on all of Smith’s claims against them, but did not address

battery claims. The status report filed by Smith on December 9, 1999, after Amedisys, Morel, and

Borne moved for summary judgment, does not identify battery claims. Smith’s responses to the

defendants’ motions for summary judgment do not mention battery claims. The trial court’s order

entered on August 4, 2000 makes no reference to battery claimsin its description of Smith’s suit and
27

states as follows: “IT IS ORDERED that the defendants’ motions for summary judgment are

GRANTED and that all of plaintiff’s claims against themare DISMISSED WITH PREJUDICE. The

only remaining claim in this lawsuit is Seth’s third-party demand against Agricultural Excess . . . .”

Smith never suggested to the trial court that she had battery claims, or any other claims, that were

not fully disposed of by the trial court’s grant of summary judgment. Thus, it appears that neither

the parties nor the trial court believed there to be a live battery claim when judgment was entered on

December 21, 2000, dismissing Smith’s complaint. Further, Smith made no post-judgment motions

and only brought up her battery claims on appeal. 

Considering the circumstances surrounding this case, we conclude that any battery claims

were abandoned. Thus, the trial court’s dismissal of Smith’s complaint without considering her

abandoned battery claims was not erroneous.

CONCLUSION

For the foregoing reasons, we AFFIRM the trial court’s grant ofsummary judgment in favor

of Amedisys and the individual Defendants.

AFFIRMED.