Articles Posted in Litigation

It’s the subject of Lifetime Channel movies but something that no parent ever wants to believe would ever really happen.  A teacher, a person in authority over minors, takes advantage of a student and engages in sexual misconduct. When this happens, is it ever appropriate to apportion some percentage of fault to the student?  In a recent lawsuit out of Calcasieu Parish, the school board attempted to answer that question in the affirmative, but was taught a different lesson by the Louisiana Third Circuit Court of Appeal.

 Parents Steven and Leslie Gillespie filed a lawsuit on behalf of their sixteen year old daughter against the Calcasieu Parish School Board (“Board”) and its employee Lance Duhon for sexual misconduct.  The Gillespie’s daughter was a student at Sam Houston High School in Moss Bluff, Louisiana when she was solicited by Mr. Duhon to perform sexual acts in the classroom. These acts of sexual contact occurred daily for months until Mr. Duhon was arrested. This was not, unfortunately, Mr. Duhon’s first sexual misconduct accusation.  Five years prior to his abuse of the Gillespie’s daughter, Mr. Duhon engaged in similar conduct with another student at a different high school which resulted in Mr. Duhon not being rehired. Somehow he was hired at Sam Houston even though the Board had knowledge of his behavior at the other school.

Following a jury trial before the Judicial District Court for the Parish of Calcasieu, the Board was found to be 40% at fault, Mr. Duhon 50% and the Gillespie’s daughter 10% at fault. Punitive damages in the amount of $300,000.00 was assessed against Mr. Duhon.  The Gillespie’s appealed asserting it was erroneous to apportion fault to their daughter and asserted that punitive damages should also be imposed against the Board.

Employers have a duty to provide their workers with reasonably safe working conditions. Whistleblower statutes protect employees from retaliation when they report violations of this duty. However, not every imperfection constitutes an unreasonable danger.

Brenda Causey reported that she suffered pain and soreness at her job at Winn-Dixie in Tangipahoa after operating a floor-sweeper that rode roughly and bounced her around. She completed two inspection sheets detailing the unsafe conditions. She also contacted the company’s corporate headquarters to tell them about her injury and the floor-sweeper’s unsafe condition. Causey claimed Winn-Dixie’s management blamed the problem on a tire deformity. At first, management said it would not repair the tire, but after she complained to corporate headquarters, she was informed the wheel would be replaced. Causey was terminated less than a month after this event.

Causey filed suit in the 21st Judicial District Court in Tangipahoa, Louisiana, claiming she was terminated as a result of reporting Winn-Dixie’s violation of La. R.S.23:13, which requires employers to furnish employment that is reasonably safe for its employees and do everything reasonably necessary to protect the life, health, safety and welfare of its employees. Causey sought damages and attorney fees under the Louisiana Whistleblower Statute. Winn-Dixie countered that Causey did not engage in protected activity and could not establish a case. Further, they claimed Causey was terminated for failing to place a completed inspection sheet for the defective sweeper in the proper place in compliance with company procedures.

Usually when you hear the phrase “adverse employment action,” it brings to mind actions such as being demoted or fired. However, under certain circumstances, it can extend to more unique actions. This includes refusing to accept an employee’s rescission of resignation.

Tyrikia Porter worked at the Houma Terrebonne Housing Authority (“HTHA”) in Louisiana since 2001. In 2006, HTHA hired a new executive director, who made regular comments about her appearance, as well as other sexual comments. In June 2012, Porter resigned, intending for her resignation to take effect in August 2012. The Executive Director approved her request to extend her resignation by a month. During the period between when Porter offered her resignation and when she stopped working, she testified against the Executive Director, alleging sexual harassment. Other superiors urged Porter to rescind her resignation. When Porter notified HTHA that she was rescinding her resignation, the Executive Director rejected the rescission. Although Porter intended to leave when she submitted her resignation, she knew other employees had been allowed to rescind their resignations. Porter believed that her rescission was not accepted because she had testified against the Executive Director at the hearing.

Porter filed claims in the United States District Court for the Eastern District of Louisiana under Title VII and state law for retaliatory discharge and sexual harassment/hostile work environment. In order to establish a prima facie retaliation case, Porter had to show the three relevant factors outlined in the following case:  See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).Louisiana courts have generally not considered rescission as an adverse employment action in retaliation cases. However, in Burlington Northern, the U.S. Supreme Court clarified that “adverse employment actions” could extend beyond workplace or employment related retaliatory acts. In determining whether an action is an adverse employment action, courts look at the circumstances and whether the act was harmful to the point that it might “dissuade a reasonable worker from making or supporting a charge of discrimination.” See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).