Articles Posted in Litigation

Employment discrimination can take many forms. One common form is gender discrimination. However, an employer may be able to avoid liability if they can provide legitimate and nondiscriminatory reasons why they decided to hire someone else that are not based on the candidate’s gender.

Tensas Parish School Board (“TPSB”) needed a head football coach and athletic director for Tensas High School, so they posted a job advertisement in March 2011. Due to budgetary constraints, TPSB requires that all coaches also teach. Sue Ann Easterling, who had prior experience coaching high school basketball, softball, gymnastics, volleyball, and track and field, applied for the job. Including Easterling, a total of seven people applied for the job. Easterling called the superintendent, Carol Johnson, after submitting her application in order to express her interest in the job. During the call, Easterling and Johnson discussed how Easterling had no experience as a football coach or as an athletic director, although she was a certified teacher. Easterling was not one of the three applicants contacted for follow-up interviews. 

The first man to whom Johnson offered the position turned down the job at the last minute. The next man, Rex McCarthy, who was offered and accepted the job was already the interim head football coach at the high school. When Easterling learned she had not received the job, she requested that she be considered for any job openings the following year. McCarthy resigned from the position the following year. Easterling still was not hired for the position.

Generally, terminating an employee on the basis of race is a violation of the Louisiana Employment Discrimination Law, which is similar to Title VII of the Civil Rights Act of 1964. La. R.S.23:301; 42 U.S.C.A. § 2000. Generally, to establish a case of racial discrimination under the Louisiana Employment Discrimination Law, the plaintiff must show that: (1) she belongs to a protected group; (2) she had appropriate qualification for the position; (3) she suffered an adverse employment action; and (4) she was replaced by someone not in her protected group. Mbarika v. Board of Sup’rs of Louisiana State University, 992 So.2d 551, 562 (La. Ct. App. 2008).

In this case, three employees of Education Management, Inc. d/b/a Blue Cliff College (“Blue Cliff”) filed a lawsuit alleging that they were fired due to being Caucasian. On November 7, 2008, a customer at Blue Cliff’s cosmetology school’s beauty salon made a comment regarding recently elected President Barack Obama, which caused a disruption in the salon. Two Blue Cliff employees, Nedina Chaisson (“Chaisson”) and Melissa Shapcotte (“Shapcotte”), were working with the students in the salon when the incident occurred. Joe Rogalski (“Rogalski”) subsequently expelled four African American students who were involved in the November 7th incident. Shortly after the four students were expelled, they were reinstated by Blue Cliff, and Chaisson, Shapcotte and Rogalski were discharged for “inappropriate professional behavior” and mishandling the November 7th incident.

In the lawsuit, the trial court granted summary judgment in favor of Blue Cliff, dismissing all of the plaintiffs’ claims with prejudice. The plaintiffs appealed, arguing that the trial court erred in admitting the affidavit of Reginald L. Moore, the president and CEO of Blue Cliff. The plaintiffs claimed that this affidavit was improper, as it contained 12 unverified, unsworn witness statements. Generally, an affidavit may be challenged via a motion to strike.

What would it take for an appellate court to overturn an award of damages? According to the Louisiana 3rd Circuit Court of Appeal, the bar is set high and very rarely does an award for damages get overturned as long as it’s reasonable. Lafayette Motors employed Mr. Menard as a service advisor. In August 2003, Dr. Stroy came to Lafayette Motors to obtain a copy of the repair estimate for his wife’s car. While Menard made a copy of the estimate, the shop manager instructed Menard not to give the estimate to Dr. Stroy. Menard crumpled up the estimate to place it in the trash; however his right wrist was grabbed and twisted by Dr. Stroy. Dr. Story proceeded to take the estimate and leave the premises with it. Menard had injuries to his wrist and arm and was later diagnosed with tendinitis by an orthopedic surgeon. Almost ten years later, Menard testified he still had pain in his wrist.

A year after the incident occurred, Menard filed a petition for damages. His petition alleged that Dr. Stroy’s actions were the proximate cause of his injuries, and he wanted damages for the medical bills he incurred at the time of the incident. Dr. Story filed an answer to the petition, as well as petitioning for reconventional demand alleging Menard made public statements that were slanderous and defamatory. He further alleged that these statements caused him to suffer embarrassment, humiliation, and mental anguish. Menard filed a motion to strike or dismiss the reconventional demand, and the court granted the motion. Menard then added Dr. Stroy’s insurance company as a defendant, and they responded by saying that the police did not provide coverage for that particular incident. The insurance company filed a motion for summary judgment, and the trial court denied it. A bench trial was held, and the court ruled in favor of Menard and awarded him $3,000 in general damages and $3,048 in special damages for the medical expenses from August 2003 to November 2003.

The standard of review, in this case, is really what this case turns on and, in this case, there is broad discretion owed to the trier of fact when it comes to fixing awards for general damages. See Hollenbeck v. Oceaneering Int., Inc., 685 So.2d 163 (La. 1997). Unless the record shows that a factual and reasonable basis does not exist and the finding is wrong or erroneous, an appellate court should not disturb a finding of fact. See Thibodeaux v. Comeaux, 69 So.3d 674, 679 (La. App. Ct. 2011).