Etheldra C. Sharp v. Jerry Melton; City of Monroe, LA; City of Monroe Police Department; Monroe Regional Airport; DAL Global Services, LLC

Judgment rendered May 20, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,508-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

ETHELDRA C. SHARP Plaintiff-Appellant

versus

JERRY MELTON; CITY OF Defendants-Appellees
MONROE, LA; CITY OF MONROE
POLICE DEPARTMENT;
MONROE REGIONAL AIRPORT;
DAL GLOBAL SERVICES, LLC

*****
Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2018-3497

Honorable Chet D. Traylor, Ad Hoc, Judge

*****

GEORGE W. BRITTON III Counsel for Appellant,
Etheldra C. Sharp
CARL VAN SHARP

BRANDON W. CREEKBAUM Counsel for Appellees,
ASSISTANT CITY ATTORNEY Jerry Melton; City of
Monroe, LA; City of
Monroe Police Dept. and
Monroe Regional Airport

OGLETREE, DEAKINS, NASH, Counsel for Appellee,
SMOAK & STEWART, P.C. DAL Global Services, LLC
By: Mark N. Mallery
Jennifer G. Mann
*****

Before STEPHENS, McCALLUM, and THOMPSON, JJ.

STEPHENS, J.

Plaintiff, Etheldra C. Sharp, appeals a judgment by the Fourth Judicial

District Court, Parish of Ouachita, State of Louisiana, granting an exception

of no cause of action filed by defendant, DAL Global Services, LLC

(“DGS”). For the following reasons, the judgment of the trial court is

affirmed.

FACTS AND PROCEDURAL HISTORY

Etheldra C. Sharp claims in a petition for damages that she was hired

on September 25, 2017, by DGS to work at the Monroe Regional Airport

(the “Airport”). DGS was in the business of providing airport and flight

support services for airlines at the Airport. As a part of her employment,

Sharp was required to complete certain training procedures in order to obtain

an official badge for entry and exit to and from secure areas inside and

outside the Airport terminal. Additionally, Sharp was required to park only

in designated secure areas. Sharp alleges that soon after being employed and

completing “badge training,” she received a physical badge, which she

realized was inoperable—it would not grant her access to the Airport’s

secure areas, including the secure parking area. Officer Jerry Melton, a

Monroe Police Department employee and director of security for the

Airport, oversaw Sharp’s badge training and the issuance of badges for

access to secure areas. Sharp asserts she informed Ofc. Melton as well as

DGS that her badge was inoperable. As a result, Sharp claims she was

instructed by DGS to park in a nonsecure area, and Ofc. Melton advised her

he would correct the situation with her faulty badge. Sharp maintains that in

accordance with DGS’s instruction, she proceeded to park in the nonsecure

parking area while awaiting a new badge from Ofc. Melton.

Thereafter, on or about October 20, 2017, Sharp was issued a new

badge, which seemed to operate properly. Having previously parked in the

nonsecure area upon arriving to work that day, Sharp completed her shift,

and then left, not to return to work for approximately a week. When she

returned to work, she parked in the nonsecure area without thinking.

According to Sharp, she realized her error, and within minutes moved her

vehicle to the secure parking area and returned to work in the Airport

terminal. Shortly thereafter, Sharp was summoned to her supervisor’s

office, and her employment was terminated, with DGS stating the reason for

her termination was for a parking violation. DGS further advised her that as

a result of her termination, she would not be allowed to work for any other

airline at the Airport for five years and her badge had been deactivated.

Sharp subsequently sought clarification from DGS regarding her termination

and was informed she had been terminated because her security clearance

had been revoked by Ofc. Melton. Sharp never claimed an employment

contract existed between her and DGS and maintains she was given no other

explanation as to why her employment was terminated.

As a result, Sharp filed a petition for damages and named as

defendants: DGS, Melton, the City of Monroe, the Monroe Police

Department, and the Airport. In response, DGS filed an exception of no

cause of action. In its exception, DGS states Sharp did not have an

employment contract with DGS for a specified term and her petition fails to

identify any statute that would bar her termination. Thus, according to DGS,

she was an “at will” employee and DGS could legally dismiss Sharp at any

time pursuant to La. C.C. art. 2747. Following a contradictory hearing on

the matter, the trial court granted DGS’s exception and entered judgment in
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favor of DGS. After filing a motion for new trial, which was denied, this

appeal by Sharp ensued.

DISCUSSION

The peremptory exception of no cause of action is set forth in La.

C.C.P. art. 927(A)(5). It tests the legal sufficiency of the petition by

determining whether the law affords a remedy on the facts alleged in the

petition. Vince v. Metro Rediscount Co., Inc., 2018-2056 (La. 2/25/19), 264

So. 3d 440; Pesnell v. Sessions, 51,871 (La. App. 2 Cir. 2/28/18), 246 So. 3d

686. The purpose of the exception of no cause of action is not to determine

whether the plaintiff will prevail at trial, but to ascertain if a cause of action

exists. Bogues v. Louisiana Energy Consultants, Inc., 46,434 (La. App. 2

Cir. 8/10/11), 71 So. 3d 1128. A “cause of action,” when used in the context

of the peremptory exception of no cause of action, refers to the operative

facts that give rise to the plaintiff’s right to judicially assert the action

against the defendant. White v. St. Elizabeth B.C. Bd. of Directors, 45,213

(La. App. 2 Cir. 6/2/10), 37 So. 3d 1139. The exception is triable on the

face of the petition, and for the purpose of determining the issues raised by

the exception, the well-pleaded facts in the petition must be accepted as true.

Fink v. Bryant, 2001-0987 (La. 11/28/01), 801 So. 2d 346. No evidence

may be introduced at any time to support or controvert the objection that the

petition fails to state a cause of action. La. C.C.P. art. 931.

The burden of demonstrating that the petition states no cause of action

is upon the mover. Wright v. Louisiana Power & Light, 2006-1181 (La.

3/9/07), 951 So. 2d 1058; Scheffler v. Adams and Reese, LLP, 2006-1774

(La. 2/22/07), 950 So. 2d 641. All reasonable inferences are made in favor

of the nonmoving party in determining whether the law affords any remedy
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to the plaintiff. Villareal v. 6494 Homes, LLC, 48,302 (La. App. 2 Cir.

8/7/13), 121 So. 3d 1246. An exception of no cause of action should be

granted only when it appears beyond doubt that the plaintiff can prove no set

of facts in support of any claim which would entitle her to relief. If the

petition states a cause of action on any ground or portion of the demand, the

exception should generally be overruled. Every reasonable interpretation

must be accorded the language used in the petition in favor of maintaining

its sufficiency and affording the plaintiff the opportunity of presenting

evidence at trial. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612

(La. 3/17/06), 929 So. 2d 1211; Stonecipher v. Caddo Par., 51,148 (La.

App. 2 Cir. 4/7/17), 219 So. 3d 1187, writ denied, 2017-0972 (La. 10/9/17),

227 So. 3d 830.

An appellate court’s review of a trial court’s ruling sustaining an

exception of no cause of action is de novo because the exception raises a

question of law, and the trial court’s decision is based only on the

sufficiency of the petition. Fink, supra. The essential question is whether,

in the light most favorable to plaintiff and with every doubt resolved in

plaintiff’s favor, the petition states any valid cause of action for relief.

Wright, supra.

On appeal, Sharp asserts in two related assignments of error that the

trial court erred in granting DGS’s exception of no cause of action based on

its erroneous conclusions that: 1) Sharp was seeking damages for wrongful

termination by DGS; and, 2) Sharp was an at-will employee. Sharp argues

her termination was merely one result of DGS’s harmful acts against her and

that “the clearest articulation” of her actual cause of action against DGS is

the following paragraph of her petition:
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Delta Global Services damaged the Petitioner by directing her
to park in areas which ostensibly resulted in her termination and
by failing to take any steps to secure her prompt badge
activation.

In response, DGS argues that whether Sharp casts her purported cause of

action as a tort claim or as an employment termination claim, the operative

facts she asserts in her petition do not give rise to a viable cause of action

under Louisiana law. Upon conducting a de novo review of the record and

carefully reviewing the content of Sharp’s petition in the light most

favorable to her, we conclude it does not state a cause of action for which

the law affords a remedy on the facts alleged.

While noting Sharp’s argument that her petition does not purport to

articulate a cause of action for wrongful termination, we nevertheless find

Sharp has no cause of action against DGS for wrongful termination. The

employer-employee relationship is a contractual relationship. As such, an

employer and employee may negotiate the terms of an employment contract

and agree to any terms not prohibited by law or public policy. When the

employer and employee are silent on the terms of the employment contract,

the Civil Code provides the default rule of employment-at-will. Quebedeaux

v. Dow Chemical Co., 2001-2297 (La. 6/21/02), 820 So. 2d 542; Fletcher v.

Wendelta, Inc., 43,866 (La. App. 2 Cir. 1/14/09), 999 So. 2d 1223, writ

denied, 2009-0387 (La. 4/13/09), 5 So. 3d 164. The rule is set forth in La.

C.C. art. 2747, which provides, “A man is at liberty to dismiss a hired

servant attached to his person or family, without assigning any reason for so

doing. The servant is also free to depart without assigning any cause.”

Under La. C.C. art. 2747, an employer is at liberty to dismiss an employee at

any time for any reason without incurring liability for the discharge.

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Quebedeaux, supra; Fletcher, supra. However, this right is tempered by

various federal and state laws which prohibit terminating an employee for

certain reasons such as race, sex, or religious beliefs.1 State statutes also

prevent the employer from discharging an employee for exercising certain

statutory rights.2 Quebedeaux, supra; Jackson v. Mayo, 42,970 (La. App. 2

Cir. 2/13/08), 975 So. 2d 815, writ denied, 2008-0553 (La. 4/25/08), 978 So.

2d 371. Thus, as long as the termination does not violate any statutory or

constitutional provisions, it is without liability to the employer. Jackson,

supra; Clark v. Acco Systems Inc., 39,532 (La. App. 2 Cir. 4/6/05), 899 So.

2d 783.

Sharp’s petition fails to allege her employer-employee relationship

with DGS consisted of an employment contract with specific terms

regarding duration which her termination violated. In other words, Sharp

fails to allege she was not an at-will employee subject to termination at any

time for any reason. Moreover, Sharp’s petition does not claim her

termination violated any statutory or constitutional provisions. Such claims

are critical for Sharp to successfully state claims against DGS. Accordingly,

the operative facts contained in Sharp’s petition simply do not give rise to

her right to judicially assert an action for wrongful termination against her

employer.

1
See, e.g., 42 U.S.C. § 2000e et seq., prohibiting discrimination by both private
and government employers in all aspects of employment based on race, religion, sex,
color, or national origin; 42 U.S.C. § 1981, prohibiting discrimination based on race; and
La. R.S. 23:301 et seq., prohibiting intentional discrimination in terms or conditions of
employment based on race, color, creed, religion, sex, national origin, disability, age, and
sickle cell trait.
2
See, e.g., La. R.S. 23:1361, prohibiting retaliation against workers’
compensation claimants.
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Furthermore, Sharp’s petition does not contain a set of facts in support

of any claim which would entitle her to relief. Sharp contends on appeal

that the actual harm to her was the withdrawal of her security clearance, not

the termination of her employment. Louisiana C.C. art. 2315 (A) provides

that “Every act whatever of man that causes damage to another obliges him

by whose fault it happened to repair it.” Louisiana courts have adopted a

duty-risk analysis in determining whether liability exists under the facts of a

particular case. Under this analysis, a plaintiff must prove five separate

elements: (1) the defendant had a duty to conform his or her conduct to a

specific standard of care; (2) the defendant failed to conform his or her

conduct to the appropriate standard of care; (3) the defendant’s substandard

conduct was a cause-in-fact of the plaintiff’s injuries; (4) the defendant’s

substandard conduct was a legal cause of the plaintiff’s injuries; and, (5)

actual damages. Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La.

10/15/14), 171 So. 3d 851; Flipping v. JWH Properties, LLC, 50,648 (La.

App. 2 Cir. 6/8/16), 196 So. 3d 149. The threshold issue in any negligence

action is whether the defendant owed the plaintiff a duty and whether a duty

is owed is a question of law. Bufkin, supra.

The operative facts stated in Sharp’s petition do not support the

assertion that DGS owed any duty to Sharp with regard to her badge or

security clearance. DGS is not the party responsible for either the grant or

withdrawal of an employee’s security clearance. DGS merely requires that

as a condition of their employment, employees undergo the necessary

training and obtain an official badge for access to secure areas. It is

undisputed that Ofc. Melton, not DGS, withdrew Sharp’s security clearance.

Employers do, in accordance with state and federal regulations, owe certain
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duties to their employees, such as the duty to: pay minimum wage; provide a

reasonably safe and healthy place to work; and, treat employees fairly.

However, there is no statutory or jurisprudential authority which would

support a claim against DGS on Sharp’s behalf. Likewise, Sharp’s petition

does not claim the existence of an employment contract establishing any

duty DGS owed to Sharp involving the attainment or maintenance of her

badge or security clearance.

Sharp asserts, however, that DGS is liable to her for the withdrawal of

her security clearance because its instruction lead Sharp to commit the

offense which Ofc. Melton cited as the basis for the withdrawal. Even if

DGS owed a relevant duty to Sharp, the facts alleged in her petition simply

do not support the claim that DGS’s prior instructions were the legal cause

of Sharp’s harm. Sharp’s petition states that DGS, upon learning Sharp’s

badge was not working properly, instructed her to park in a nonsecure area.

However, Sharp also admits in her petition that even after she received a

new, properly working badge, she “without thinking, parked in the same

parking area that she had been parking in for several weeks.” Officer

Melton subsequently deactivated Sharp’s badge and revoked her security

clearance, and DGS terminated her employment. According to Sharp’s

petition, DGS advised Sharp she had been terminated because her security

clearance had been revoked, while Ofc. Melton advised Sharp her security

clearance had been revoked because of a “parking violation.”

Sharp admits she mistakenly parked in a nonsecure area after she had

received valid security clearance and a working badge. DGS’s instructions

for Sharp to temporarily park in the nonsecure area was an apparent attempt

to accommodate her continued employment while Ofc. Melton addressed the
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issue with her faulty badge. Based on Sharp’s realization she could park in

the secure area and subsequent decision to promptly remove her vehicle

from the nonsecure parking area, the receipt of her operable badge

seemingly reinstated the standard prohibition against parking in the

nonsecure area. Sharp was obviously aware the validity/applicability of

those instructions by DGS ceased once she was issued a valid, working

badge, as indicated by the fact that Sharp quickly realized her mistake and

moved her vehicle to the proper secure parking area. Therefore, it was not

DGS’s instruction that led to the revocation of Sharp’s security clearance—it

was Sharp’s own actions that resulted in the “parking violation.”

Accordingly, having made all reasonable inferences in her favor, we find

Sharp’s petition fails to state a cause of action against DGS. Sharp’s

assignments of error are without merit.

CONCLUSION

For the foregoing reasons, the trial court’s grant of the exception of no

cause of action in favor of DAL Global Services, LLC, dismissing the

claims of Etheldra C. Sharp, is affirmed. Costs of appeal are assessed to

Sharp.

AFFIRMED.

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