Devonna Fauntleroy v. Rainbow Marketers & in Solido

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-926

DEVONNA FAUNTLEROY

VERSUS

RAINBOW MARKETERS & ET AL. IN SOLIDO

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20034529
HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Billie Colombaro Woodard, Marc T. Amy, and Billy Howard
Ezell, Judges.

AFFIRMED.

R. Kent Dupre
Agent for Rainbow Marketers
217 East Kaliste Saloom, Suite 202
Lafayette, LA 70508
(337) 235-5098
COUNSEL FOR DEFENDANT/APPELLEE:
Rainbow Marketers, Inc.

Michael D. Hebert
Steven J. Dupuis, Jr.
Milling, Benson, Woodward
Post Office Box 51327
Lafayette, LA 70505-1327
(337) 232-3929
COUNSEL FOR DEFENDANT/APPELLEE:
Rainbow Marketers, Inc.

Patrick S. Garrity
Steffes, Vingiello & McKenzie
3029 South Sherwood Boulevard, #100
Baton Rouge, LA 70816
(225) 368-1006
COUNSEL FOR DEFENDANT/APPELLEE:
Rainbow Marketers, Inc.

Devonna Fauntleroy
7350 Victoria Drive
Maurice, LA 70555
(337) 892-6751
In Proper Person

AMY, Judge.

The plaintiff, a former employee of the defendant, filed suit for wrongful

termination and benefits under the federal Family Medical Leave Act and

Consolidated Omnibus Budget Reconciliation Act. The trial court found in favor of

the defendant, concluding that the plaintiff had not met her burden of proof as to

certain elements of her claims. The plaintiff now appeals. For the following reasons,

we affirm.

Factual and Procedural Background

Devonna Fauntleroy alleged in her “Petition for Damages Pre-Trial Brief”1 that

she was employed by Rainbow Marketers, Inc. (“Rainbow”) from November 26, 2001

until August 25, 2002 as a manager. In her “Petition for Damages,” the plaintiff

alleged that due to injuries that she sustained in an automobile accident, she took

leave from work on August 11, 2002. The plaintiff also stated in her “Petition for

Damages” that Rainbow terminated her employment during that leave on August 26,

2002.

Ms. Fauntleroy filed suit on August 25, 2003, alleging that Rainbow had

wrongfully discharged her and asserting entitlement to continued health care benefits

under the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C.

§ 1161 et seq. (2003). In her subsequent pre-trial brief, the plaintiff further alleged

entitlement to return to work under the Family Medical Leave Act (FMLA), 29 C.F.R.

§ 825.100 et seq. (2003).

1
The plaintiff submitted a number of pleadings alleging facts in support of her claims. The
pleadings included: an August 25, 2003 “Petition for Damages”; an October 20, 2003 “Response
to Answer Filed By Defendant and Request for Jury Trial”; and a February 2, 2004 “Petition for
Damages Pre-Trial Brief.”

Following a bench trial, the trial court ruled in favor of the defendant. The trial

judge stated in his oral reasons for judgment that, due to a lack of evidence admitted,

the plaintiff failed to meet her burden at trial on any of her claims.

The plaintiff appeals, appearing before the court in proper person, and argues

that the trial court erred in not granting her default judgment motion and in its ruling

that she had not met her burden of proof as to any of her claims.

Discussion

Wrongful Termination

Ms. Fauntleroy argues that she was wrongfully terminated, asserting in her

brief to this court that she was terminated while subject to a physician’s release from

work.

The employer-employee relationship is contractual in nature. Quebedeaux v.

Dow Chemical Co., 01-2297 (La. 6/21/02), 820 So.2d 542. “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.” Id. at 545. When they have not

effected an employment contract, the Louisiana Civil Code defines the default

relationship as at-will employment. Id. Article 2747 states:

A man is at liberty to dismiss a hired servant attached to his
person or family, without assigning any reason for doing so. The
servant is also free to depart without assigning any cause.

In an at-will employment relationship, employment may generally be terminated by

either party at any time or for any reason without liability. Quebedeaux, 820 So.2d

542 (quoting Williams v. Delta Haven, Inc., 416 So.2d 637 (La.App. 2 Cir. 1982)).

2

However, a number of federal and state statutes prohibit dismissal for various

reasons.2 Id.

The trial court explained in oral reasons for ruling that Ms. Fauntleroy did not

present evidence of an employment contract, leading it to consider the employment

relationship to be at-will. The trial court stated:

Okay, plaintiff is alleging that she was wrongfully terminated and
is seeking COBRA benefits and Family and Medical Leave Act benefits
which direct – go to lost wages.

However, plaintiff did not prove any employment contract, and
this is an employment at will state which means that an employer can
fire you for any reason or no reason.

Workers’ compensation [sic] is an – essentially an insurance
program that covers employer – employees from the risk of being
unemployed and entitlement to unemployment benefits. It does not
equate to entitlement to any sort of damages for wrongful termination
lawsuit. [sic] You would have to have some – something that was not
presented in this case to be entitled to that.

On review, an appellate court may not set aside the findings of fact by the trial

court unless those findings are clearly wrong or manifestly erroneous. Rosell v.

ESCO, 549 So.2d 840 (La.1989). Further, an appellate court must not base its

determination on whether it considers the trier of fact’s conclusion to be right or

wrong, but on whether the factfinder's conclusion was reasonable. Stobart v. State,

Dep't of Transp. & Dev., 617 So.2d 880 (La.1993). However, with regard to

decisions of law, a trial court’s decision is subject to de novo review. See Hall v.

Folger Coffee Co., 03-1734 (La. 4/14/04), 874 So.2d 90.

2
See e.g. 42 U.S.C. § 2000(e) et seq. (prohibits discrimination by employers on basis of race,
religion, sex, color or national origin); 42 U.S.C. 1981 (prohibits discrimination based on race);
La.R.S. 23:301 et seq. (prohibits intentional discrimination by employers on basis of race, color,
creed, religion, sex, national origin, disability, age, sickle cell trait). See also La.R.S. 23:1361
(prohibits unlawful discrimination against employees who file a claim for workers’ compensation
benefits); La.R.S. 30:2027 (prohibits retaliation due to an employee’s report of environmental
violations).

3

In a civil case, Louisiana courts require a plaintiff to fulfill his or her burden

to prove a prima facie case. See Collins v. McElveen, 96-633 (La.App. 3 Cir.

11/6/96), 682 So.2d 978; Dupre v. Joe’s Riverside Seafood, 578 So.2d 158 (La.App.

1 Cir. 3/2/91). In this case, the record reflects that the trial judge instructed the

parties that “[t]he plaintiff has the burden of proof. The plaintiff is required to prove

that what the plaintiff is saying is more likely true . . . than not true. And the

defendant does not have a burden of proof in this case.”

The Louisiana Department of Labor considered the circumstances of Ms.

Fauntleroy’s employment and termination when she applied for state unemployment

benefits following her discharge.3 Despite the Louisiana Department of Labor’s

determination that her discharge was “because of absenteeism due to personal

illness/medical reasons[,]” our review of the record reveals that the plaintiff failed to

show any evidence of a violation of a federal or state statute limiting the ability to

terminate the relationship at-will. Given this absence of proof of a wrongful basis for

Ms. Fauntleroy’s discharge, we conclude that the trial court’s determination that Ms.

Fauntleroy failed to prove that the defendant wrongfully terminated the at-will

relationship was not clearly wrong.

Family Medical Leave Act

Ms. Fauntleroy further argues that the termination of her employment and

health care benefits following her leave from work, which she contends was due to

an automobile accident in August 2002, violated rights provided by the FMLA.

The Family and Medical Leave Act of 1993 . . . allows ‘eligible’
employees of a covered employer to take job-protected, unpaid leave, or

3
The record does not contain any of the application documents; it only contains the “Notice
of Claim Determination”, which was attached as an exhibit to the plaintiff’s “Response to Answer
Filed by Defendant and Request for Jury Trial” and was also entered at trial.

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to substitute appropriate paid leave if the employee has earned or
accrued it, for up to a total of 12 work weeks in any 12 months . . .
because the employee’s own serious health condition makes the
employee unable to perform the functions of his or her job.

29 C.F.R. § 825.100 (2003). The Act generally allows employees to return to their

positions at the termination of the leave. Id. The Act also entitles those employees

to continued maintenance of their health care benefits during their leave. Id.

As an initial matter, the FMLA requires employees to meet specified minimum

requirements to receive benefits. See 29 C.F.R. §§ 825.100, 825.110 (2003). The Act

defines which employees are “eligible,” providing in pertinent part:

(a) An “eligible employee” is an employee of a covered employer
who:
(1) Has been employed by the employer for at least 12 months,
and
(2) Has been employed for at least 1,250 hours of service during
the 12-month period immediately preceding the commencement of the
leave, and
(3) Is employed at a worksite where 50 or more employees are
employed by the employer within 75 miles of that worksite.

29 C.F.R. § 825.110 (2003).

Reference to the statute indicates that in order to carry her burden and prove

herself an eligible employee under the FMLA, the plaintiff would have had to present

evidence proving that she had been employed by Rainbow for at least 12 months; that

she had worked for the requisite number of hours during the twelve months prior to

the commencement of her leave; and that Rainbow employed at least 50 employees

within a 75 mile radius of Ms. Fontleroy’s worksite. See 29 C.F.R. § 825.100 (2003).

The trial court noted the statute’s eligibility requirements in assessing whether

the plaintiff had met her burden of proof, stating:

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The Family and Medical Leave Act ... only applies to employers
who employ fifty or more employees within seventy-five miles of the
work site. And it applies to employees who have been employed for
1,250 hours during the prior twelve months.

There’s no evidence the plaintiff presented on the number of
hours she worked or the number of employees the employer employed
within seventy-five miles of the work site.

For those reasons, plaintiff has not met her burden of proof.

Our review of the record reveals no error in the trial court’s conclusion that Ms.

Fauntleroy did not prove these elements as required by the FMLA.4 Although she

alleged the dates of her employment in a pre-trial brief, she did not establish these

dates at trial through testimony or the introduction of evidence. An appellate court

may only review evidence that is on the record, which “includes the pleadings, court

minutes, transcript, judgments and other rulings, unless otherwise designated.”

Martin v. Comm-Care Corp., 37,600, p. 5 ( La.App. 2 Cir. 10/16/03), 859 So.2d 217,

221, writ denied, 03-3188 (La. 2/6/04), 866 So.2d 225. “Memoranda and exhibits

which were not filed into evidence in the trial court are not part of the record on

appeal.” Martin, 859 So.2d at 221. Furthermore, Ms. Fauntleroy failed to offer any

physical evidentiary proof, in the form of employment or tax records or the like, to

substantiate these dates. The record does not reflect any evidence as to the number

of hours she worked within the relevant time frame, nor does it reflect Rainbow’s size

4
At trial, Ms. Fauntleroy presented two witnesses. Her first witness testified that she learned
of Ms. Fauntleroy’s employment termination when she went to retrieve Ms. Fauntleroy’s paycheck
and leave a medical work excuse with a representative of Rainbow. Ms. Fauntleroy’s second
witness, an employee at Rainbow, testified that she gave one paycheck to Ms. Fauntleroy’s friend,
but informed the friend on a subsequent visit that she could not provide another check for Ms.
Fauntleroy because her supervisor had stated that the check was in the mail.
Ms. Fauntleroy also produced a number of exhibits, generally including copies of statutes and
information regarding the FMLA and COBRA. She also submitted copies of her medical leave
excuses, a bankruptcy notice relating to the defendant, a COBRA notice letter from Rainbow, a copy
of a settlement offer, and a Notice of Claim Determination from the Louisiana Department of Labor.

6

or number of employees. Again, these essential elements required by 29 C.F.R. §

825.110 were part of the plaintiff’s burden of proof. Because the plaintiff failed to

offer sufficient evidence to prove any of the elements required by the FMLA, we find

that the trial court’s conclusion that the plaintiff did not meet her burden of proof on

her FMLA claim was not in error.

Consolidated Omnibus Budget Reconciliation Act

The plaintiff argues that Rainbow terminated her group health insurance

coverage following her termination in violation of the requirements of COBRA. Ms.

Fauntleroy alleges that COBRA required Rainbow to offer her continued health

insurance coverage under the company’s health insurance plan.

The relevant sections of the Consolidated Omnibus Budget Reconciliation Act

generally state that upon the occurrence of a “qualifying event,” a qualified

beneficiary of a group health care plan is entitled to elect continued coverage under

the plan. See 29 U.S.C. § 1161(a) (2003). The termination of a covered employee’s

employment qualifies as one of the listed qualifying events. 29 U.S.C. § 1163 (2003).

This benefit does not apply to “any group health plan for any calendar year if all

employers maintaining such plan normally employed fewer than 20 employees on a

typical business day during the preceding year.” 29 U.S.C. § 1161(b) (2003).5

We need not consider the complex statutory framework of COBRA further to

find that the record supports the trial judge’s decision. The trial court noted that one

of the eligibility requirements of the statute considers the size of the employer. The

trial judge stated in his opinion that the “plaintiff presented no evidence of the

number of employees that this employer employed over the year prior to her

5
We note that the trial court made an additional reference to a similar requirement of the Act.

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termination.” As our review of the record also revealed no evidence of proof of this

element offered by the plaintiff, we conclude that the trial court’s determination is

supported by the record. Thus, there is no error in the determination that Ms.

Fauntleroy did not meet her burden of proof on her claim for COBRA benefits.

Default Judgment

Finally, the plaintiff alleges as error the trial court’s acceptance of the

defendant’s Answer on the same day as the Preliminary Default Judgment was

granted.

The Louisiana Code of Civil Procedure outlines the procedure and proof

necessary for the two-step process used to obtain a default judgment. See La.Code

Civ.P. arts. 1701-1704. In an ordinary proceeding, the defendant in a principal action

must file an answer within fifteen days after service of the citation. La.Code Civ.P.

art. 1001. “Notwithstanding the provisions of Article 1001, the defendant may file

his answer at any time prior to confirmation of a default judgment against him.”

La.Code Civ.P. art. 1002.

In this case, the record reveals that the defendant filed its Answer on October

2, 2003. The record reveals no confirmation of the preliminary judgment prior to that

time. In accordance with Louisiana Code of Civil Procedure Article 1002, Rainbow’s

Answer was clearly filed prior to confirmation of the default judgment and was thus

timely.

Accordingly, the determination that the Answer was timely was not in error.

This argument is without merit.

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DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs
of this proceeding are assigned to the plaintiff, Devonna Fauntleroy.

AFFIRMED.

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